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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.

Wednesday, January 17, 2007

FISA and the President -- together again

(updated below - updated again - and again)

Everything I know about the FISA story is contained in this AP article, which I just read, and in this letter from Attorney General Gonzales to Senators Leahy and Specter. Writing full analytical posts is not something that my put-upon, book-addled brain is going to permit today, so I will rely upon the comment section to learn the answers to these questions:

(1) Why couldn't the new rules simply have been instituted years ago, as part of a newly amended FISA (which the administration requested and obtained from Congress in 2001 and which Congress repeatedly asked to do multiple times both prior and subsequent to revelation of the President's lawbreaking)?

(2) If, as Attorney General Gonzales claims, they were seeking to develop new rules as early as the Spring of 2005 to enable eavesdropping under FISA, why didn't they say so when the controversy arose over their lawbreaking?

(3) For those who claimed that our national security was jeopardized and that The Terrorists were given our state secrets when The New York Times revealed that the President was eavesdropping without warrants, didn't Alberto Gonazles just "give the terrorists our playbook" by telling them how we are eavesdropping, i.e., that we are doing so with warrants?

(4a) Could they possible think that this "concession" (what we call "obeying the law") is going to forestall or preclude Congressional investigations into all of the eavesdropping they have been doing over the last five years without anyone watching?

(4b) And relatedly, is this magnanimous assent to comply with the law supposed to relieve them of the consequence from their lawbreaking?

(4c) And related further, are they now going to tell the Sixth Circuit that there is no reason to bother with figuring out if Judge Diggs Taylor was correct when she ruled that the President violated both the Constitution and the law by eavesdropping on U.S. citizens without the warrants required by law?

UPDATE: In January, 2006, current CIA Director and former NSA director Michael Hayden warned that even discussing eavesdropping issues helps the Terrorists because it reminds them that we eavesdrop:

GEN. HAYDEN: You know, we've had this question asked several times. Public discussion of how we determine al Qaeda intentions, I just -- I can't see how that can do anything but harm the security of the nation. And I know people say, "Oh, they know they're being monitored." Well, you know, they don't always act like they know they're being monitored. But if you want to shove it in their face constantly, it's bound to have an impact.

And so to -- I understand, as the Reverend's? question just raised, you know, there are issues here that the American people are deeply concerned with. But constant revelations and speculation and connecting the dots in ways that I find unimaginable, and laying that out there for our enemy to see cannot help but diminish our ability to detect and prevent attacks.

Alberto Gonazles said this repeatedly, too -- that merely by raising the issue of eavesdropping, we remind the Terrorists that we eavesdrop. As a result, the ones who forgot that we eavesdrop won't make the calls that they otherwise would have made to talk about their plots, and we won't know what they're doing and we won't be able to catch the Terrorists. That's how the administration explained how our national security had been so gravely harmed by the Times article that "told" the Terrorists that we were eavesdropping without warrants.

Yet here the administration is -- not just reminding the Terrorists that we eavesdrop but detailing their new eavesdropping procedures in public.

UPDATE II: There is one crucial point (at least) that reveals the core falsity behind the administration's claims today. Contrary to their central point, their complaints about FISA were most assuredly not confined merely to procedural obstacles -- i.e., that the process of obtaining warrants was too slow and cumbersome. They complained as much if not more about the substantive requirement under FISA for obtaining a warrant - i.e, they claimed that the requirement to show "probable cause," rather than mere "reasonable basis" (the standard under their illegal program), meant that they could not do the eavesdropping they needed to do in order to stop The Terrorists. Here is an exchange from Hayden's Press Briefing:

HAYDEN: The president's authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates. . . .

QUESTION: Just to clarify sort of what's been said, from what I've heard you say today and an earlier press conference, the change from going around the FISA law was to -- one of them was to lower the standard from what they call for, which is basically probable cause to a reasonable basis; and then to take it away from a federal court judge, the FISA court judge, and hand it over to a shift supervisor at NSA. Is that what we're talking about here -- just for clarification?

GEN. HAYDEN: You got most of it right. The people who make the judgment, and the one you just referred to, there are only a hand.

Identically, a month earlier, when the scandal first broke, Hayden -- in response to a question asking him to explain why FISA was inadequate -- said:

GENERAL HAYDEN: One, the whole key here is agility. And let me re-trace some grounds I tried to suggest earlier. FISA was built for persistence. FISA was built for long-term coverage against known agents of an enemy power. And the purpose involved in each of those -- in those cases was either for a long-term law enforcement purpose or a long-term intelligence purpose.

This program isn't for that. This is to detect and prevent. And here the key is not so much persistence as it is agility. It's a quicker trigger. It's a subtly softer trigger.

That was supposedly why they had to eavesdrop outside of FISA -- not because warrants took too long to get, but because they did not want to have to show probable cause in order to eavesdrop.

Thus, it would not matter what procedures they changed with the FISA court. The problem they claimed existed with FISA was that it required too stringent a showing in order to obtain a warrant (of course, that excuse for lawbreaking never made sense either, since the Senate wanted to lower the standard of proof required under FISA and the administration refused, but that is another story).

The point here is that there is no way that any new secret streamlined procedures with the FISA court could possibly fix the problems which they claimed inhered in the law and which prevented them from keeping all of us nice and safe, because the supposed problem with FISA was not the procedures but its substance (the President's FISA reversal appears to have rejuvinated my brain temporarilly).

UPDATE III: Via Marty Lederman, here is part of a statement today from new House Intelligence Committee Chair Silvestre Reyes:

This announcement does not end our Committee’s interest in this matter. Until our Committee has the opportunity to review the Court orders and conduct in-depth oversight over this program, I am withholding judgment on whether it is effective and whether it protects the rights of the American people.

Regardless of what the Court Orders say and regardless of what the "new program" provides, we ought to see an emphatic statement that there will still be an investigation into how these powers were used in secret for the past five years, specifically on which Americans they eavesdropped with no oversight. I don't know enough about Reyes to know if he will be as diligent as he should be in that regard (and his statement is slightly vague about his future intentions), but I do know enough about Pat Leahy, his Senate counterpart, to preclude real concern about whether needed investigations will occur.

UPDATE IV: Defense Tech quotes Patrick Keefe as wondering whether this "agreement" includes some sort of retroactive approval by the FISA court for prior eavesdropping. I find that extremely difficult to believe for several reasons (and retroactive approval beyond 72 hours of eavesdropping is, in any event, barred by the statute).

Not-very-coincidentally, Gonzales will be testifying tomorrow before Leahy's Senate Judiciary Committee. The title of the hearing is the pleasing "Oversight of the U.S. Department of Justice." And The Post's Dan Eggen reports
that "Justice officials also released statistics today showing improvements in the amount of time it takes to obtain warrants from the surveillance court," though presumably that occurred before implementation of these new procedures, so it is unclear what that proves. Presumably, this will all be much clearer once Gonzales answers some questions tomorrow.

UPDATE V: One is constrained to admit that Mark Levin has a valid point here:

Is there no principle subject to negotiation? Is there no course subject to reversal? For the Bush administration to argue for years that this program, as operated, was critical to our national security and fell within the president's Constitutional authority, to then turnaround and surrender presidential authority this way is disgraceful. The administration is repudiating all the arguments it has made in testimony, legal briefs, and public statements. This goes to the heart of the White House's credibility. How can it cast away such a fundamental position of principle and law like this?

If you were a Bush follower, and you were told (and, of course, by definition, believed) that the President's violations of FISA were not just legal but critical to our Survival and Ability to Defeat The Terrorists, and then suddenly one day, the administration, once Democrats took over Congress, announced that they could, after all, comply with FISA, wouldn't you feel betrayed, too, as though everything the administration was telling you all along about what is vital for our security was . . . . completely false and insincerely expressed?

For Bush followers who kept insisting that (a) The New York Times "blew the cover" on a vital national security program and (b) our ability to stop The Terrorists would be impeded by compliance with FISA, where does this leave them? If Levin's reaction is any indication, they won't be happy.

UPDATE VI: Like Levin, Captain Ed was a supporter of the administration's warrantless eavesdropping and apparently believed them when they claimed that security required operating outside of FISA. As a result, he seems disillusioned:

This change of policy will surely raise a few eyebrows. One of the arguments the Bush administration made was that it could not reach accommodation with the FISA court on expedited authorizations for wiretaps on international conversations with one point inside the US, on phone numbers already flagged as potentially related to terrorists. It discouraged Congress from drafting legislation mandating a process for such actions, stating that the authorization for the use of military force (AUMF) granted them all of the authorization needed for such surveillance. . . .

On one hand, having this process remain in our counterterrorism arsenal is great news. However, for those of us who supported the White House on this contentious point, the speed in which they reached accommodation with FISA will call into question that early support. By my count, we've had ten entire weeks since the midterms and they've managed to scale a mountain that they claimed was insurmountable for the previous five years.

Perhaps more explanations will be forthcoming. I, for one, will be waiting.

It's worth noting that there are Bush supporters (like Ed) who genuinely believe when the administration says that they have to do X because it is necessary to protect Americans, and they then support X in reliance on those representations (in much the same way that many Americans supported the invasion of Iraq in reliance on the administration's representations).

For those people (as opposed to the Bush followers who support anything the administration does no matter what and cheer on any expansion of power), this is going to be a hard pill to swallow and then digest. There is simply no way to reconcile (at least honorably) the adminsitration's prior insistence that our security depended upon eavesdroppping outside of FISA with their sudden willingness to comply with it (now that, as Ed notes, the Democrats control Congress).

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Additional observations are here.

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