Patterico's Pontifications


The FISA Rubber Stamp

Filed under: Civil Liberties,Terrorism — DRJ @ 10:36 pm

[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.


12 Responses to “The FISA Rubber Stamp”

  1. Count on it. I’d give the Times some respect if they were idealogues. But they’re rank partisans. The sooner a bankruptcy court judge gets his/her hands on that organization the better.

    Bel Air (802704)

  2. Setting the stage so that when the O!ne’s DOJ crosses the line (and they most certainly will), they’ll be able to claim the higher moral ground of “protecting the children” or some such.

    EW1(SG) (da07da)

  3. The NYT will call his policies only “unduly rigorous” if there is a terrorist attack (or a narrowly averted one) in the first 1460 days of Obama’s first term.

    Nugai (eeb340)

  4. The New York Times

    Never letting the facts get in the way of an agenda!

    Another Drew (5dfa66)

  5. it’s ironic that after years of hearing the Bush Administration created a “rubber stamp” FISA system that violated civil rights.

    You fundamentally misunderstand the criticism. The criticism isn’t at all that Bush created a pliant FISA system. It’s that the FISC has always been deferential, so there has never been the need for Bush to break the law and go outside its parameters.

    jpe (08c1dd)

  6. As for the specifics (vitally important to reaching any sort of informed opinion), NYPD submitted warrant requests on public telephones. The NYPD wanted authority to obtain all communications in which one end was on certain public telephones.
    For those who don’t follow, or follow and forget, “probable cause” under FISA is not as to commission of a criminal act, but to the question that the information sought is either of a foreign agent, or relates to foreign intelligence information. Just a caution that “probable cause” has more than one meaning, although casual debate inclines (and sometimes intends, with the purpose of misleading) to find only the “suspicion of criminal activity” meaning.

    cboldt (3d73dd)

  7. You must always remember that FISA was a law passedby the Jimmy Carter administration to restrict surveillance. It was a reaction to Nixon and “The Plumbers.” It was never intended to aid national security. My daughter spent a few years writing the FISA applications for the FBI and it is an onerous process that is impossible to use in the cell phone era. It’s about “wiretaps” in an era when nobody uses landlines. Especially terrorists. Maybe the Mafia still uses the old telephone but the people we are at war with use cellphones, many of them the disposable type. This is all about a war with Bush and will disappear once Obama is inaugurated. After January 20, 2009, you will not hear about FISA again from an MSM source.

    MIke K (0cde87)

  8. Fascists

    JD (bda7e2)

  9. jpe, and your theme is simply always been false.

    SPQR (72771e)

  10. SPQR – It is simply easier for them to live in their alternate universe.

    JD (bda7e2)

  11. “You must always remember that FISA was a law passedby the Jimmy Carter administration to restrict surveillance. ”

    It was passed by congress in response to executive branch abuses, and the fear that courts would step with an even stronger hand, and carter wasn’t too happy with it.

    imdw (cd4b7a)

  12. It is simply easier for them to live in their alternate universe.

    Be that as it may, I think it says something that this particular issue has been discussed extensively over several years, and some people still don’t understand even the basic contours of the arguments.

    jpe (5320bf)

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