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, December 27, 2005

FISA Court rejected Bush surveillance applications?

A report out yesterday from UPI, based on a Saturday article from the Seattle Post Intelligencer, claims that Bush decided to eavesdrop outside of FISA because the FISA court, in 2003 and 2004, began modifying, and even rejecting, applications by the Bush Administration for surveillance at an unprecedented rate. From the Intelligencer:

Government records show that the administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court's approval.

A review of Justice Department reports to Congress shows that the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than from the four previous presidential administrations combined.

The court's repeated intervention in Bush administration wiretap requests may explain why the president decided to bypass the court nearly four years ago to launch secret National Security Agency spying on hundreds and possibly thousands of Americans and foreigners inside the United States, according to James Bamford, an acknowledged authority on the supersecret NSA, which intercepts telephone calls, e-mails, faxes and Internet communications.

Government leaks in this matter thus far have been quite suspect, and one would be well-advised to go to the original source rather than relying on newspaper accounts of them. The story purports to rely upon "Justice Department reports to Congress" but it's unclear whether the referenced reports are public or not. What makes this article a bit difficult to believe is this bit:

To win a court-approved wiretap, the government must show "probable cause" that the target of the surveillance is a member of a foreign terrorist organization or foreign power and is engaged in activities that "may" involve a violation of criminal law.

Faced with that standard, Bamford said, the Bush administration had difficulty obtaining FISA court-approved wiretaps on dozens of people within the United States who were communicating with targeted al-Qaida suspects inside the United States.

It is hard to believe, to put it mildly, that the FISA court refused to allow surveillance on "dozens of people within the United States who were communicating with targeted al-Qaida suspects inside the United States." If someone were communicating with a "targeted al-Qaida suspect," they presumably were considered to be that by virtue of some evidence of their communications with al-Qaida, which would easily prompt approval by the FISA court for surveillance (not to mention that it is equally hard to believe, at least, that this Administration knows of "dozens of people" in the country "who were communicating with targeted al-Qaida suspects" and did nothing other than apply for warrants to eavesdrop on them).

And it is worth mentioning that this "stingy FISA court" excuse for violating FISA did not arise until now -- more than a week after initial disclosure of this program and all sorts of entirely different excuses for eavesdropping outside of FISA have been offered up by the Administration. Similarly, the FISA court's rejection of a few applications would hardly explain a wholesale refusal to comply with FISA -- the creation by the Administration of a whole new eavesdropping program designed to exist secretly outside of the law -- as opposed to proceeding with eavesdropping in those handful of cases where the FISA court refused to allow it.

But really, none of this actually matters. There is no doubt that Bush defenders will sieze on these types of reports as though they constitute some sort of justification for Bush deciding to eavesdrop in violation of FISA. To preempt that illogic, let's review a few basic principles again.

In a constitutional republic, the President does not have the right to break laws simply because he believes the law in question is a bad law or because he believes that he has a good reason for breaking the law. Nor does he have the right -- once a court refuses to give him authorization -- to do exactly that which the law clearly states he can do only with judicial approval.

Bad laws can be changed just as easily as they were enacted, especially by a President whose political party controls both houses of the Congress. If the FISA standards were too stringent to permit the Executive branch to engage in the surveillance it believed it needed to engage in, then the President could have sought changes to those standards (the way he did after 9/11 when the Patriot Act was enacted, which, in part, liberalized FISA in obvious anticipation by the Congress that FISA would continue to serve as the framework for our surveillance efforts). Or he could have sought a judicial determination -- including from the secret FISA court -- declaring that he did not have to comply with FISA.

But he did none of that. Instead, at least according to this story, when the court ruled that he was not permitted under the law to engage in the surveillance he wanted to engage in, he went ahead and did it anyway. That behavior is the very definition of lawlessness.

We are likely to start seeing all sorts of leaked stories like this designed to illustrate how imperative it was for Bush to eavesdrop outside of FISA. But none of that matters to the issue at hand. What the rule of law means is that nobody, including the President, has the right to violate it -- to engage in criminal conduct -- just so long as they find a good excuse for having done so once they get caught.

UPDATE: As Lis Riba notes, the alleged flurry of modifications and rejections by the FISA court in 2003 and 2004 isn't much of an excuse for the illegal surveillance ordered by Bush, since the FISA-bypass program began in late, 2001, when the FISA court still had its accommodating rubber-stamp out whenever the Administration came calling.

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