[Guest post by DRJ]
On December 16, 2005, the New York Times published an article that leaked previously undisclosed information regarding Foreign Intelligence Surveillance Act (FISA) requests, including details of how the Bush Administration authorized intelligence sources to monitor conversations between foreign terrorism suspects and people in the United States beginning in 2002. The article stated that the “secret court has turned down only a small number of requests over the years.”
Bush critics like Jeffrey Toobin suggested the FISA court’s rare refusals showed the Bush Administration had created a rubber stamp process that could be illegal:
“Q: In your opinion is the president on firm legal footing?
TOOBIN: I think he is on questionable legal footing because he did not seek court orders, which are easy to get. The key question is why didn’t the president go to the FISA court? It’s a virtual rubber stamp. The president says he didn’t always adhere to FISA because the terror threat is so fast moving and there’s no time to wait.
But you can actually get a court order from the FISA court retroactively, so it’s hard to see what is slowing things down. Also there have been 19,000 court orders approving wiretaps from the FISA court since it started in 1978, and only five have been turned down.”
The Bush Administration denied the claim but critics continued to question whether FISA was rubber stamp justice. For instance, in a March 2007 PBS interview of James Baker, the head of the Justice Department’s Office of Intelligence Policy and Review responsible for preparing and filing all applications for domestic surveillance under FISA, the rubber stamp theme was the subject of one of the first questions:
“People have referred to the FISA court as a rubber stamp. There are thousands of applications, and only a few have been rejected. … What’s the process in dealing with the FISA court?”
Baker responded with details of the FISA process, describing it as robust and far from a rubber stamp, but the critics remained skeptical.
Five days ago, the New York Times weighed in on FISA again, this time to address a dispute between the Bush DOJ and the New York City Police Department set forth in correspondence between them that was leaked to the New York Times. Interestingly, the New York City Police Department claims the Bush DOJ has set an unduly high standard on FISA surveillance:
“In a statement, the Police Department’s deputy commissioner for legal matters, S. Andrew Schaffer, who has advised [NY Police Commissioner] Kelly on the matter, said that [US Attorney General Michael] Mukasey’s contention that Mr. Kelly had proposed an illegal course of conduct was “preposterous and categorically untrue.”
“We have asserted,” the statement continued, “based on actual cases, that FISA warrants were not sought in a timely manner in part because of a self-imposed standard of probable cause which is higher than that required by Supreme Court precedent.”
It’s not clear to me when or how this DOJ-NY City Police disagreement began. It’s conceivable it developed after Congress passed the FISA legislation last Summer but it appears to be an issue that has developed over a longer period of time. If that’s the case, it’s ironic that after years of hearing the Bush Administration created a “rubber stamp” FISA system that violated civil rights, it turns out the system may have been so restrained that only the most clear-cut cases were pursued.
Which means someday we may see the New York Times describe George W. Bush as the President whose unduly rigorous FISA policies jeopardized the safety of New York City and its residents.