Tuesday, December 20, 2005

# Posted 12:03 AM by Ariel David Adesnik  

OUR GOVERNMENT SHOULD SPY ON THOSE DOPE-SMOKING HIPPIES, G**DAMN IT! No, on second thought, maybe not. This story has exploded in the administration's face, knocking the good news from Iraq off of the front pages at the most convenient possible moment for the Democrats.

The big question is, why did the Bush administration decide to circumvent the foreign intelligence court even though the court imposes very few limitations on the administration's surveillance privileges?

Even after listening to This Week, Face the Nation and Meet the Press, I still haven't gotten a good answer. On Face the Nation, Joe Biden said that the administration's behavior was simply unfathomable. Bob Scheiffer suggested that this was another Karl Rove stratagem to force the Democrats to defend a soft position on national security. Tom Friedman suggested that the administration wanted to go after people it didn't have enough evidence to get a warrant for.

I think what's wrong about Schieffer and Friedman's explanations is that they don't take into account the context in which the decision was made to go around the courts. It was right after 9/11, at a time when no one in their right mind would have said that there wouldn't be even a single other attack on the American homeland during the next four years.

My best guess -- and it is very much a guess -- is that the administration moved swiftly and aggressively to expand its powers in this way because it expected there to be a real war on the homefront, not just an argument about whether the Democrats or the Republicans have a greater penchant for revisionist history.

Which is not to say that the decision was justified. On that question, I'm going to have to reserve judgment. In fact, after reading Orin Kerr's long and thoughtful post about the legal and constitutional merits of the administration's position, I think I may simply lack the necessary expertise to have any sort of intelligent position on this issue.

Nonetheless, I am troubled by the inability of the administration to provide a simple and straightforward rationale for its behavior. On Meet the Press, Condoleezza Rice kept dodging the issue of the decision's legality by insisting that she isn't an expert. In general, that's a fair enough point. But a Secretary of State should be able to elaborate the basic legal justification for an important White House policy, even if she can't be expected to cite the case law.

(NB: In other respects, Condi did an excellent job. As a candidate, I think she could handle the press with a good bit of panache.)

In a manner similar to the Secretary of State, Lindsey Graham (R-SC) couldn't come up with any sort of straightforward legal justification for the administration's behavior during his time on Face the Nation. As Tom Friedman observed (on that same show),
I think what Senator Graham said was so important and so powerful, which is--who is a Republican and a legal expert, a lawyer, who was basically saying this administration has acted outside the bounds of any law that he knows of...

At the end of the day, what he said was--what Senator Graham said, I think, was very powerful. We have to have answers. You were acting outside the law as we know it.
To a degree, one might describe Graham's comments as an admission against his own partisan interest. At the same time, Graham has begun to present himself as a mini-McCain and seems to enjoy all the positive coverage he gets as a budding maverick. I think Graham is sincere, but so is Joe Lieberman when he disagrees with the Democrats about almost everything.

So where does that leave us? I'm not sure. As Matt Yglesias observed,
I tend to doubt that anything genuinely awful has resulted from the president's little illegal wiretap scheme.
"But," Matt adds,
...the principles being invoked to justify it are extremely troubling.
I certainly agree with the first part (sans "illegal"), although I'm not so sure about the second. Even so, I do believe that if the administration had a greater up-front concern about civil liberties -- rather than demonstrating concern only after the issue has become controversial -- it could have found a way to get all of the necessary powers to fight the war on terror without riding on the borders of the law.
(18) opinions -- Add your opinion

Eh, while this is great fodder for lawyers to banter over, as far as I'm concerned Bush cut through a lot of red tape and delays to ensure we could monitor communications between our mainland and terrorist points offshore in an efficient manner.

If only we'd done that in the 4 years prior to 9/11, instead of just the past 4 years, we'd likely not even be having this conversation today and the WTC would still be standing.

So, the academic conversation is interesting, and perhaps even helpful in the long-term, but it's, well, academic to the greater deadly world problems facing us in real time.
I can't remember where I read this today, but part of the reason may have been that the FISA process took too long--not on the FISA end, but in terms of putting together the request to the FISA court.
Found it. Byron York, NRO.
I suspect that the "program" (notice that it has sometimes been referred to that way by the administration, and also Graham's statement of "new technology") simply is not susceptible of fitting under FISA.

FISA makes base assumptions -- you first have a "suspect" and then order electronic surveillance of him.

Seems more likely to me that we are intercepting every iota of traffic to/from areas of interest, and then analyzing it for patterns to determine who the suspects are.

That certainly is the more normal method of military signals intelligence.

FISA just doesn't provide a framework to address that sort of operation.
Between 1979 and 2004, only four warrent applications for FISA were rejected, and two of those were later revised and accepted. What red tape problem?

To say that there is unnecessary lag time in getting the warrent approval is another red herring, since spies can start right away and have up to 72 hours to get the warrent afterwards.

The real question here is that if our surveillence system needed to be revised after 9-11, why didn't Bush go through a friendly, Republican-controlled Congress to make these changes? If FISA is broken, which it doesn't in any way appear to be, why not fix it openly?

Why would Bush leave it in place and work around it in secrecy, leaving himself open to the current blowback?
"If only we'd done that in the 4 years prior to 9/11, instead of just the past 4 years, we'd likely not even be having this conversation today and the WTC would still be standing."

Actually, Rice knew that Al Queda was trying to use planes to blow up buildings. Hence the title of the August 6, 2001 Presidential Daily Briefing to President Bush, entitled: "Bin Ladin Determined to Strike US."

But NSA Rice, a Sovietologist, wasn't interested.

Yet in the preceding '4 years,' the then Loyal Opposition, the Republicans, were considerably more interested in Monica Lewinsky than the Embassy Bombings. Whenever Clinton did anything, the response inevitably was that he was 'wagging the dog.'
When considering context, we need to go beyond merely noticing this was done shortly after 9/11. It's also worthwhile to notice that what Bush approved isn't radically different from the sort of surveillance the government has been doing for decades anyway, under a series of presidents from both parties.

I think there is a scandal here, but as with so many of the legitimate Bush scandals, the problem is the system, not the particular person currently sitting in the oval office. And focussing on the current president, turning this non-partisan issue into a partisan one will interfere with solving the problem.
My objection to this spying is that it is against Bush's *political* opponents. Perhaps you recall the Peace Fresno group, a bunch of muffin eaters who were infiltrated by the anti-terrorist squad from the Sherrif's Department:


These people are not a threat to national security; they are part of the political process. This isn't an expediency. It's a crime.
But cs, certainly if that group was infiltrated by the Sheriff's Department, as you claim, then it had little to do with the Feds and nothing whatsoever to do with this program, unless the group was taking phone calls from terrorists.

Briefest possible answer to the "why no warrants?" question:

Because they didn't know these people's names in advance; they were merely the people being contacted by known foreign terrorists. I'm not sure from the articles whether retroactive FISA warrants were obtained after the identities were learned, but they certainly couldn't have been obtained in advance.

Longer background discussion:

The NSA is forbidden from spying on US persons (a larger class than US citizens, including residents). Abroad, it is difficult to tell whether a signal has communications from a US person without capturing it and analyzing it first. For that reason, the NSA has long had a sort of compromise: foreign signals are captured broadly, and then all communications from a US person are discarded within 72 hours of capture, with no record. (Unless there is an outstanding warrant for the person.) This is regarded as reasonable because the NSA otherwise would not be able to capture many foreign signals, since so many signals contain many communications at once, and at any time some of them could be by US persons.

By contrast, the NSA does not at all capture any purely domestic signals without a warrant, since it is guaranteed that both parties will be US persons.

Previously, the NSA treated communications which crossed our national borders like domestic communications, not tapping them at all without a warrant. In extreme cases, this meant that if we knew Osama bin Laden's phone number, and he called someone domestically, we could not tap that call unless we already had a warrant for the target. If the target was previously unknown, then that would be a problem. From the articles, it seems clear that this program enabled the tapping of such calls.

What is unclear from the reports is whether the US person side of the conversation was discarded within 72 hours, and whether retroactive FISA warrants were then obtained for the US persons who were identified under the program. (And, if so, whether the data learned from these signals were used in obtaining the FISA warrants, and if so, whether it came from only the foreign or also from the domestic side of the conversation.) Both things would still be extremely consistent with the original New York Times and the LA Times reporting on the subject. Certain details are, understandably, still missing from the reports, although I'm trying to read what I can.

Certainly the warrantless taps are a big deal, and that soundbite could be true even with retroactive FISA warrants later being obtained-- we can't obtain a warrant ahead of time for "anyone whom bin Laden calls on the phone." I'm not sure that people realize that the NSA has been doing warrantless taps of purely foreign communications for a long time, albeit with destruction of all records of communications by a US person after 72 hours of collection.
You're right. In my anger and annoyance I conflated the two. My bad.
David, you write:
This story has exploded in the administration's face, knocking the good news from Iraq off of the front pages at the most convenient possible moment for the Democrats.

Actually, no, this is an inconvenient moment for Democrats, because it provides a convenient talking point for right-wingers, namely that the NYT chose to publish the story at this time in order to get the Iraqi election news off the front pages -- a talking point which has been pushed despite the fact that looking at the front pages of the NYT immediately gives the lie to it.

Democrats aren't gloating about an embarrassing revelation. We're angry. And we don't understand why Republicans aren't angry as well. This is beyond a partisan issue. This is the Executive Branch gone renegade. This is the White House deciding that even a Congress controlled by their own party, backed up by a conservative Supreme Court, won't give them enough ways to get around the Constitution. The man who twice swore an oath to uphold the Constitution now contends it doesn't apply to him. Why aren't you angry?

This isn't about defending the United States from terrorism. On 9/10, we had all the raw intelligence we needed to stop 9/11 from happening; we lacked the ability to analyze and integrate that intelligence. The FISA court approves nearly every request brought to it; we can get the intelligence we need within the law. The absence of significant foreign terrorist attacks on US soil since 9/11 isn't relevant any more than the absence of same between 1993 and 2001.

So take your intellectual honesty and weigh the benefits of the Executive's lawbreaking against the dangers of abuse inherent in it. Then tell us straight whether you're for it or against it.
From Hamilton Lovecraft:
"The man who twice swore an oath to uphold the Constitution now contends it doesn't apply to him.
Why aren't you angry?"

We're not angry because we're reasonaable people, disinclined to go off the deep end. In today's Chicago Tribune, John Schmidt--not some Republican spin artist, but a former Clinton appointee to the rank of Associate Attorney General--quotes the Foreign Intelligence Surveillance Court of Review--the highest juridical instance to deal with FISA matters--as follows:

"All the...courts to have decided the issue held that the president has inherent authority to authorize wiretapping for foreign intelligence matters without judicial warrant."

The law has spoken. President Bush, far from flouting the 1787 charter, relies directly on its plain language with solid support from the judicial branch.

What part of "inherent authority...without judicial warrant" do the president's critics not understand?

John Van Laer
John Van Laer:

I can accept that it's settled law that "the president has inherent authority to authorize wiretapping for foreign intelligence matters without judicial warrant."

However, the text of FISA goes to great lengths to distinguish among foreign powers, terrorist groups, and US citizens, presumably in order to make it clear what is and isn't "wiretapping for foreign intelligence matters". If the Executive considers that FISA is encroaching on its inherent authority, then the Executive should appeal to the Legislature to change the law, or to the Judiciary to have the law overturned. That the Executive did not do so, and that it did not appeal to Congress for alteration in the law because they knew they wouldn't get what they wanted, should be telling.

FISA isn't there to prevent Joe Average from spying on US citizens. Its sole purpose is to define the constraints that our governmental agencies operate under. If the law stands, it applies to the Executive. To the best of my knowledge, the law hasn't been challenged in court. Even if eventually stricken as unconstitutional, it's the law of the land today, and it's been broken.
I think it may be very pertinent that in the recent press conference General Hayden, former head of NSA, mentioned that the shift supervisor was the one that actually was deciding whom to intercept (following guidelines).

This suggests to me some sort of real time operation, something along the line of "OK he is done arranging the meeting with X, and X is calling someone else, quick get an intercept on that call",

That also suggests why even FISA's 72 hour emergency period wouldn't work -- the 72 hour emergency period requires the non-delegable personal involvement by the Attorney General, and that the AG take certain procedural steps in advance of the surveillance.

If they are doing this stuff real time, that just doesn't fit within the framework of FISA.
It seems like 72 hours should still be sufficient: "OK he is done arranging the meeting with X, and X is calling someone else. Bill, quick, get an intercept on that call. Fred, get me the AG's office right the f**k now."

If 72 hours is not sufficient, perhaps someone could ask Congress to make some alterations to the law. Instead of, you know, breaking it.
Lets see???? The Democrats are going to try and make an issue out of the President being too aggressive in his efforts to protect the American public from acts committed by foreign terrorists??? Somehow I don't think that is going to be a very good sales product.
Are the Yooligans too aggressive?

Lets see. Ignoring Congressionally mandated oversight by a secret court. Check. Denying prisoners either Geneva Convention rights or habeus corpus. Check. Torturing prisoners. Check. Using the NSA to spy on ordinary Americans email and phone conversations. Check. Doing all of this in secret. Check.

Are the Republicans proud of our disintegrating freedoms and our declining stature in the world? Evidently.
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