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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, January 03, 2006

The Still Unanswered Question

The Earth spins on its axis once more, as Paul of Powerline has returned to reciting pro-Bush talking points on the NSA scandal. In attacking a column by Craig Crawford, Paul reminds us of the fact that the very first question which arose from this scandal has still never been answered:


Crawford also fails to acknowledge the limited scope of the warrantless intercepts. As the president has said, the program is "limited to calls from outside the United States to calls within the United States. But they are of known numbers of known al Qaeda members or affiliates." As far as I'm aware, there is no evidence that the program extends beyond this situation, and Crawford certainly doesn't provide any.

Instead, ignoring the facts, he relies on a cartoonish portrayal of Bush as willing to countenance any assault on privacy in the name of national security. But a president with no regard for privacy when it stands in the way of security would also want to be able to listen to a much wider range of calls involving suspected terrorists without seeking court approval. Yet the president frequently seeks warrants from the FISA court, bypassing that court (as far as we know) only in the narrow circumstances described above.

Paul here recites the Administration’s claim that it is "bypassing [the FISA] court . . . only in the narrow circumstances described above" -- i.e., only when it is listening in on calls to and from "numbers of known al Qaeda members or affiliates." But that defense makes no sense because eavesdropping on conversations involving al Qaeda members is exactly the circumstance in which it would be most unnecessary to bypass the FISA court. For that reason, the Administration's claim that it only eavesdropped on conversations involving al Qaeda members simply cannot be reconciled with the Administration’s claimed need to operate outside of FISA, since if FISA allows anything, it would allow eavsdropping on al Qaeda.

When this scandal was first disclosed, the question which immediately arose was this one: Since the secret FISA court has always rubber-stamped virtually every warrant request, what possible legitimate reason could exist for bypassing it? That question has been largely forgotten, but it still has never been answered, by anyone.

The Administration could easily get from the FISA court, in total secrecy, any warrant it wants to eavesdrop on almost anyone it wants with even the most minimal justification. And critically, the more the Administration narrows the scope of its claimed eavesdropping activities in order to quell public controversy – Paul now says the Administration only listened in on calls to and from the "numbers of known al Qaeda members or affiliates" -- the more difficult it becomes to explain why they needed to operate outside of FISA. Obviously, nothing would be easier than obtaining a warrant from the FISA court to listen in on "numbers of known al Qaeda members or affiliates." And that's the Administration's dilemma here: The more rigidly it ties its eavesdropping activity to al Qaeda, the harder it becomes to explain why it did not comply with FISA.

The only assertion even approaching an answer to this question that we’ve heard (murkily and through untraceable leaks) is that the NSA monitored too much information as part of its data-mining activities to make FISA warrants feasible. But that claim makes no sense, and is not a responsive answer to the question. Even if sweeping techniques of data-mining were used in the first instance to locate and identify which telephone numbers should be monitored, there would then be a clear basis (obtained from the data-mining) on which to seek FISA court approval to monitor those telephone numbers which the data-mining identified.

And if, as the Administration implies, it was able as part of this data-mining to identify "numbers of known al Qaeda members or affiliates" and thereby eavesdrop on them, then FISA warrants could have been easily obtained for that eavesdropping based on the information obtained from the data-mining. The data-mining explanation makes it less understandable, not more so, why the Administration did not comply with the law when engaged in this eavesdropping.

We’ve had three weeks since this scandal first arose which have been filled with all sorts of legalistic excuses and silly rhetorical distractions ("If somebody from al Qaeda is calling you, we'd like to know why"). But the first and most obvious question which arose once this eavesdropping program was disclosed is still the one for which there is no answer: Given how permissive FISA is, why did the Administration decide that it could not comply with it, especially if -- as they now claim -- all they were doing was listening to the communications from "numbers of known al Qaeda members or affiliates"?

Is there any answer to that question?

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