Monday, February 06, 2006

Domestic Spying For Dummies

I consider myself fairly well-informed about current events, but I also miss a lot. So here's a basic and totally honest question: Has the Bush administration ever tried to explain why the existing FISA procedure was/is insufficient for the NSA surveillance program? Of course, I've heard the Scott McClellan-esque bromides about "protecting the American people" and "a president's inherent powers during wartime", and I realize that the insufficiency of those explanations is the basis for the current controversy. But particularly considering FISA allows for the issuance of a retroactive warrant, has the administration ever attempted to offer any substantive or technical explanation for its end-around of the FISA court?

41 Comments:

Anonymous Anonymous said...

The most technical explanation I saw today was that FISA has "too many hoops"

2/06/2006 8:03 PM  
Anonymous Anonymous said...

I believe the answer to your question is NO.
Redirection has been their game.

2/06/2006 8:12 PM  
Anonymous Anonymous said...

The only explanation I am aware of is that it is too much paperwork.

If there were only a few intercepts, then the paperwork, even an inch of paperwork (Gonzales today said FISA warrant applications are often an inch thick), would not be such a burden. Reading between the lines, I believe that the volume of intercepts is much larger than the "limited" program with a "few" wiretaps described by the President.

Further, beyond procedural issues, it is not clear whether the same standard is used for FISA as for the NSA procedure. In his testimony today, Gonzales indicated that both FISA and the NSA program use a "probable cause" standard.

2/06/2006 8:15 PM  
Anonymous Antonie said...

(1) FISA takes too long and is thus not practical,

(2) FISA may deny some requests that are not totally clearcut, (this ties in with the "same standard" issue of anon above)

Neither is a valid excuse for not having any oversight in such an important matter.

What I'm particulary afraid of is that this program could be used to dig up dirt on election opponents. How would we even know?

2/06/2006 8:34 PM  
Anonymous GailN said...

The only thing I can add to the previous comment (cuz I watched most of the hearings today as well) was Gonzalez's point that, besides having to generate the "up to 1 inch" of paperwork within the 72 hours, much of it has to be essentially outlined before beginning the wiretap since he has to be sure that he will be able to justify it when he goes before the FISA court. [Now that I've just reported this as faithfully as I can recall, it really doesn't hold water as an explanation, since if the FISA court rejects the argument, they would simply have to stop the tapping and destroy any information already gathered.]

2/06/2006 8:39 PM  
Blogger GreyHair said...

Here's my speculation.

Because the taps included thousands, if not millions, of citizens. The paperwork would have been impossible, and to go to Congress for legislative change would have killed the program via leaks or opposition.

2/06/2006 9:19 PM  
Blogger Spider said...

One defense that I heard was that going to the court would have alerted the enemy of our intentions. What complete malarky!! Does Al Queda have operatives on the FISA courts? OF COURSE NOT!!!

Why can't these Senators play hardball with this adminstration? At the last minute they decided not to have Gonzales go under oath? What kind of pussy crap is that, Congress? Grow a pair and do your job to police the executive branch when it oversteps. Checks and balances, Senators! We all learned about it in grade school!

Sorry, TCR. This complete lack of . . .Reality with this whole wiretapping pisses me off. I am sure it pisses you off too. As I wrote in my blog, I respect how you can succinctly write that while I just explode.

(Side note. One inch of paperwork processing is a problem for the adminstration? Give me a break! I generate that in an hour in Human Resources paperwork when my department hires someone.? I think I smell something there, and I am sure I know what it is because Dubya was a rancher. end side note.)

2/06/2006 11:48 PM  
Blogger Editor said...

There are several possible answers impied but not fully stated during the hearings. What is really being implied, but not fully stated, is that they want to go after taps that would NOT rise to "probable cause" or that at least might not rise to probable cause. Witness the rather short discussion about the fact that, should FISA turndown a request, they then automatically have to notify the target of the requst. (Although Gonzales did imply that the Justice Department had some mechanism of telling the judges why they should not notify the target, thus implying that the target notification was somewhat discretionary to the FISA judges.)

The other arguement, feeble in my opinion, is that to change the FISA laws to make them more workable would require a public outing of the program and would thus damage its effectivness.

Several Senators attempted to find out what else might be going on under the Imperial President theory, it was not denied nor confirmed that domestic to domestic wiretapping absent FISA approval was going on and it was neither confirmed nor denied that entering and searching someones's home for example was being done absent any court permission. Interestingly it was emphatically denied that the Imperial theory was NOT being used to allow wiretapping of political opponents. I think that makes the other non-denials likey to be affirmations.

I suspect the real reason they are not going to FISA is that they are wiretapping ALL international (and likely most domestic) communications to the extent that they are running them all for key words and then keeping those that trip the key words. They are then using AI programs to look for patterns within those that trip keywords and selecting a subset to send on to human analysis. Frankly I believe that his been going on since long before 911.

2/07/2006 2:19 AM  
Blogger chris bray said...

Worth a couple of minutes to read an essay published very recently on the official GOP website with the gorgeously Orwellian title "Our Right to Security." It covers the talking points on this question pretty clearly:

"It was the impenetrable FISA guidelines and fear of provoking the FISA court's wrath if they were transgressed that discouraged risk-averse FBI supervisors from applying for a FISA search warrant in the Zacarias Moussaoui case...

"Despite this history, some members of Congress contend that this process-heavy court is agile enough to rule on quickly needed National Security Agency (NSA) electronic surveillance warrants. This is a dubious claim. Getting a FISA warrant requires a multistep review involving several lawyers at different offices within the Department of Justice. It can take days, weeks, even months if there is a legal dispute between the principals."

And so on. If we have laws and follow them, the Islamofascist terrorists will kill you. Note the phrase, "that deadly FISA wall."

Pure Rovian false dichotomies. Do you want us to follow laws, or do you want to live?

Ugly shit, and par for the course.

2/07/2006 3:11 AM  
Anonymous cmg said...

The administration is making the argument that Congress doesn't have the constitutional authority to pass a statue that infringes upon the President's inherent authority as Commander in Chief.

They are saying that the President has the inherent constitutional authority to spy on Americans without a warrant.

Therefore, they do not need to explain why FISA isn't sufficient.

Therefore there is not a law that congress could make that could curtail this activity.

In fact, any such law would be unconstitutional.

Now that is some scary sh*t.

2/07/2006 3:46 AM  
Blogger Ahistoricality said...

I do remember reading an article (I thought it was in this blog, but I can't find it now) that argued that the kind of wiretaps being carried out by the NSA were not FISA-authorized, even if it had been extended as proposed by Congress a year or two ago. So, there's no way that the President had authority except under a "war powers" argument that frankly won't stand up in a non-partisan court...

2/07/2006 3:59 AM  
Anonymous Anonymous said...

Why are the Repubs on the committee acting Bushbots? Perhaps the following article provides a clue:

Rove counting heads on the Senate Judiciary Committee


The White House has been twisting arms to ensure that no Republican member votes against President Bush in the Senate Judiciary Committee’s investigation of the administration's unauthorized wiretapping.

Congressional sources said Deputy Chief of Staff Karl Rove has threatened to blacklist any Republican who votes against the president. The sources said the blacklist would mean a halt in any White House political or financial support of senators running for re-election in November.

"It's hardball all the way," a senior GOP congressional aide said.

2/07/2006 8:39 AM  
Anonymous Mike said...

Beautifully posed question, CR.

Of course, the real reason that President Pinocchio and his cronies don't outline a real reason for violating the FISA is that the real reason is not safe to air.

The Real Reason: Unchecked Executive Power.

The "wiretapping" of domestic citizens is a misdirection. While the left hand's wiretapping, the right hand is tightening the screws.

When Winston asked O'Brien why The Party tortured him, beat him, and broke him into a shattered shell of a man, O'Brien's answer was simple yet chilling:

"Because We Can"

Why is the Administration in favor of warrantless wiretapping?

Because it can.

2/07/2006 9:05 AM  
Blogger alec said...

Like I heard a stand-up comedian once say, the problem with speed limits and stop signs it that they don't take into account the speed I like to drive at nor the hurry I might be in.

2/07/2006 9:19 AM  
Anonymous Anonymous said...

On "This Week", George S interviewed the general in charge of NSA. Nice guy, clearly very well briefed. I was amazed when he cheerfully admitted to George, on camera, that basically the only reason they weren't going to FISA was because it was inconvenient.

INCONVENIENT.

2/07/2006 10:38 AM  
Blogger Jordan said...

It seems explaining oneself when caught is something no government, espically the Bush governemnt, cannot handle.

2/07/2006 11:05 AM  
Anonymous Allmaya said...

Just a Gut-O-Meter response.

They didn't get FISA clearance because the FISA judges would never OK spying on domestic political opponents. Of course, political spying gives them an upper hand in winning elections.

Remember, these are folks who are acting as if they will NEVER be out of power. To make this a reality, they will resort to anything.

2/07/2006 1:06 PM  
Blogger David Studhalter said...

Several of the above comments point up the essential problem with the administration's NSA "program," which explain why they didn't even try to get it authorized in the first place but insted implemented it in CLEAR VIOLATION of existing statutory law: there are no checks or balances. Essentially, the only limit on the administration's power to use covert surveillance for whatever purpose it sees fit is its good intentions. They are basically saying, "Trust us. We wouldn't fool ya." Sorry, not buying.

2/07/2006 2:17 PM  
Blogger Chris F. said...

Regarding the spying: On NPR there was a rather in depth discussion a month ago with AG Gonzalez in which he suggested that FISA is only useful for long term surveillance, and that Mr. Bush uses the non warrented version for "detection" of terrorists. Of course, shortly after that there was a direct quote from Bush which suggested that the program was actually used to listen to known terrorists, which indicates there is no detection involved. Essentially, there is absolutely no clear explanation given for the program and why FISA does not apply. I have also heard mention that since the NSA is a military agency, "use of military force" also applies to any surveillance performed by NSA. Again, not so clear.

It seems to me that this is simply an attempt at circumventing established constitutional rights of Americans by use of sophistry and message targeting. Gonzalez, on NPR, said that we should trust the agents doing the listening and reading not because there are no checks involved, but because they are professional spies, and are thus going to only use this capability for professional uses (i.e.-war on terror). Because they are good people in the NSA, we can and should trust that they are not collecting private information about the general populace. Of course, I have ALSO heard, when the message is directed at those in favor that the good people of the NSA are willing to get their hands dirty and do anything necessary, cost is no object.

Of course the book, written by the former NSA agent suggests that the monitoring does not simply include all out of country calls. It is INITIATED by some international call, and then the calls made after that are then traced and investigated as well (regardless of whether the call is international or domestic in nature). Given that Cindy Sheehan (no matter how much anyone may disagree with her ideas) was arrested for Unlawful Conduct for showing up to the State of the Union upon an invitation from a congress woman, simply because she was wearing a politically-minded teeshirt, I am very unwilling to trust the executive branch under Mr. Bush's lead.

Furthermore, I no longer trust AG Gonzalez, period. It seems as though it is time for those of us who are outraged to actually take action against this administration. We should take up a letter-writing campaign to our senators and congressional representatives calling for congressional oversight and serious inquiry into the depth of this administration's contempt for the American people and its guaranteed rights.

I believe it was three weeks ago, upon watching the video blog-cast at www.rocketboom.com, when a man, upon being asked the question, "Why is George W. awesome," responded, "because America hasn't had a good impeachment in 8 years."

I'd say we're about due.

2/07/2006 3:30 PM  
Blogger 277fia said...

How about organizing a protest?

John Aravois at Americablog is campaigning to prevent companies from selling cell phone records. Apparently, they are available for sale on the internet for about a hundred bucks.

Aravois is on the wrong track here. Let's do some fundraising and buy the cell phone records of public officals in Washington DC.

If Gonzales thinks it's okay to spy on me and my family, I'll spy on him and his family - so there!

2/07/2006 4:01 PM  
Blogger Lymond said...

IIRC Gonzo's "denial" (kim 2/7 2:19) to wiretapping political opponents was a bit less than that. Rather, he said something like, "We wouldn't do that!" or words to that effect, which in my mind is not a real denial, especially from him. Sophistry, indeed.

Also, I'm sure that a whole lot of that 1-inch filing is a load of legal boilerplate.

2/07/2006 4:48 PM  
Anonymous Antonie said...

One additional argument I heard today is that Gonzalez at first went to congress trying to get permission to have FISA waived. When congress refused, the wiretapping ceased for a while.

Then Gonzalez came up with another reason, namely that congress had given the president authorization to use military force, and that that made the president a wartime president. He further reasoned that a wartime president is exempt from FISA.

If you accept the latter, the question then becomes, who are we at war with and is this going to be a 100-year war?

2/07/2006 7:50 PM  
Anonymous howard said...

kim has it: general hayden discussed this in his interview a few weeks ago.

the point is to lower the standard from probable cause.

and the reason that the 72-hours deal doesn't work for them, he said, is that you still have to meet the FISA standard, meaning probable cause.

while we don't know exactly what the program consists of, it's clear that it's some form of fishing expedition.

chris bray, thank you bringing the latest example of gop lying to our attention. clearly, they never read the 9/11 commission report, which deals with this matter.

Regardless, even if it were true, the solution is to change FISA, not make up your own system.

2/07/2006 10:07 PM  
Anonymous NYCgent said...

It's going to be fun if they bring Goldsmith and Comey to testify.

Gonzalez repeatedly referred to FISA as a "useful tool." Somebody else had to point out that the point of FISA is not to be a tool, it's a limit on governmental authority.

2/08/2006 12:36 PM  
Anonymous Mike said...

Gonzalez is a useless tool.

2/08/2006 1:59 PM  
Anonymous Dave said...

I think Bush summed it up best when he said "L'Etat, c’est moi."

2/08/2006 2:52 PM  
Anonymous kilfarsnar said...

No Mike, he is an unfortunately useful tool. As is his boss. But I digress. My understanding of the Administration's case is this: They cannot tell us why they could not go before the FISA court, because doing so would reveal too much about the operation and compromise national security. It's the argument that completes itself! Just add devious intent and stir!

2/08/2006 3:08 PM  
Blogger chris_from_boca said...

Nope. All we get is trust us, or else Karl Rove will put a horse head in your damn bed.

2/08/2006 3:38 PM  
Anonymous lilybart said...

Because you don't have time to draw up warrants for millions of people. Simple really.

2/08/2006 6:57 PM  
Anonymous lilybart said...

allmaya....you make a good point. It they thought that any DEM would ever be president, would they want the executive to have so much new power?

They are acting like they will never be out of power, and Diebold pretty much guarantees this will be so.

I have to ask though, anyone, how many America citizen terrorists are there, really? And I don't mean those watched by the Southern Poverty Law Center. I mean Islamic terrorists. Because I can't imagine there are very many at all so listening to all of our conversations with data mining technology is really pointless and ILLEGAL.

2/08/2006 7:01 PM  
Anonymous Kevin Wohlmut said...

The reason they don't want to go through FISA courts is very simple: It's all the fault of those damn liberal judges. Obviously, when some wimpy fuzzy-wuzzy liberal judge (whom Bush probably appointed in the first place, but y'know, he has such a poor crop to choose from), when some wimpy liberal judge gets the case, he's absolutely certainly going to rule that the terrorists' rights were violated, and therefore the ticking nuclear bomb has to be allowed to go off, or some such rot.

Actually, the above is the way hardcore conservatives explain it to each other. My own theory is that this leak and indeed this entire program, were all a PR ploy intentionally cooked up by Karl Rove in order to prove to the hardcore Right that Bush was really, truly an effective terror-fighter, because he's willing to rip up any law that's necessary in order to Save Us from those nasty swarthy bad guys. You will recall that this story was leaked to the press after several weeks of very obvious Bush foreign policy failures, such as at the Latin American summit and elsewhere. Numerous op-eds in the papers that week were written by conservatives accusing Bush of incompetence. Then this spy story came out, and his popularity rebounded immediately from its recent low (around 35%) and went up 10 points. That, folks, is the hardcore Right coming back into the fold. This program enrages liberals and "true" conservatives (like TCR) alike, but the point was to prop up Bush's sagging popularity with his base (the "looney" Right), at that time.

Probably the last three Administrations have been doing this wiretapping to some extent or another (ECHELON has been around since Bush I), but I suspect the current one dressed it up as a serious, organized program and then leaked it as a PR move.

2/09/2006 10:54 PM  
Blogger A.L. said...

CR,

I'm an attorney, and I've been following this issue very closely. My strong suspicion is this:

-The type of surveillance they're doing does not come anywhere close to the 'probable cause' standard under FISA. It probably doesn't even meet a 'reasonable suspicion' standard, at least as judges would understand the term.

-So the Bush administration can either ignore FISA, or seek to have it amended to provide a lower standard.

-The problem with the latter strategy is the protections provided by FISA (which were liberalized significantly by the Patriot Act) likely parallel what the 4th amendment would require even if FISA didn't exist. So if FISA was amended to provide a lower standard, it would immediately be challenged under the 4th amendment, and that challenge would have a good chance of succeeding. The administration admitted this in 2002 during the debate over the DeWine amendment.

-So it's not so much that the administration fears Congress would be unwilling to amend FISA to their satisfaction, it's that they fear that once codified, such an amendment would be struck down by the courts. Keeping the program secret keeps the courts from reaching the 4th amendment questions, at least in the near term.

2/10/2006 10:54 AM  
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3/15/2006 9:48 PM  
Anonymous Anonymous said...

Answer: Police State

Phil Donahue has been saying that for some time.

Sandra Day O’Connor has warned us in a recent speech.

John Allen Paulos had an interesting perspective on the wire tapping: Of Wiretaps, Google Searches and Handguns

"If I may make another local reference, recall that Philadelphian Benjamin Franklin, whose 300th birthday celebration just passed, famously wrote: "Those who would sacrifice liberty for security deserve neither." What they might deserve is the surveillance state toward which we seem to be heading."

It doesn't happen all at once, but erodes over time.

3/16/2006 3:43 PM  
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