WaPo has an interesting piece on the wiretap program and the relationship between the Justice Department and the FISA court: Secret Court’s Judges Were Warned About NSA Spy Data.
Much of the piece is about the process by which NSA-acquired information could not be used in obtaining FISA warrants–i.e., that information acquired via warrantless searches that were not obtained via FISA guidelines could not then be used to get a warrant. Primarily the discussion is over problems with that relationship. The piece also gives some additional insight into the whole process.
In regards to whether the President’s program is a necessary response to the limitation of the FISA process, we have the following:
Several FISA judges said they also remain puzzled by Bush’s assertion that the court was not “agile” or “nimble” enough to help catch terrorists. The court had routinely approved emergency wiretaps 72 hours after they had begun, as FISA allows, and the court’s actions in the days after the Sept. 11 attacks suggested that its judges were hardly unsympathetic to the needs of their nation at war.On Sept. 12, Bush asked new FBI Director Robert S. Mueller III in a Cabinet meeting whether it was safe for commercial air traffic to resume, according to senior government officials. Mueller had to acknowledge he could not give a reliable assessment.
Mueller and Justice officials went to Lamberth, who agreed that day to expedited procedures to issue FISA warrants for eavesdropping, a government official said.
The requirement for detailed paperwork was greatly eased, allowing the NSA to begin eavesdropping the next day on anyone suspected of a link to al Qaeda, every person who had ever been a member or supporter of militant Islamic groups, and everyone ever linked to a terrorist watch list in the United States or abroad, the official said.
That does not comport with what both Hayden and Gonzalez have said in regards the inability of the FISA process to work in the hunt for terrorists. If within 24 hours the court was able to allow that many warrants, if it is rather unclear why the process isn’t sufficiently flexible to be used now–or, at a minimum, why the law could not be adequately amended to deal with the new, post-9/11 security reality.
Also interesting:
In March 2002, the FBI and Pakistani police arrested Abu Zubaida, then the third-ranking al Qaeda operative, in Pakistan. When agents found Zubaida’s laptop computer, a senior law enforcement source said, they discovered that the vast majority of people he had been communicating with were being monitored under FISA warrants or international spying efforts.
That is noteworthy, because I have heard, several times, Zubaida’s laptop, and the data upon it, as an example of my FISA can’t work in the war on terror, since such an arrest might send contacts scurrying for their hidey-holes and changing communication methods.
Sphere: Related Content
February 9th, 2006 at 8:46 am
doc:
(1) nsa is part of DoD and their intercepts are sigint and not wiretaps for law enforcement.
if info froman nsa enemy intercepts has law enforcement ramifications then a warrant is asked for by the fbiu, which IS a law enforcement agency of the DoJ.
fisa applies to gathering intel during peacetime foreigners - or in wartime against non-enemy. against the enemy we are fighting ion a war, the CiC cxan order sigint anywhere against anyone. (SCOTUS, Keith 1972)
(2) imagine we get a laptop in waziristan.
it has 500 cellphone numbers in it
and
1000 email addresses.
each of those numbers and addresses are linked to an equal amount of others.
let’s stop there.
how much paperwork would it take to get a warrant ON EACH FRIGGING NUMBER!?
remember: cellphones are portable. some can be used in usa and europe.
all can be used by more than one person. shared.
how do you know who’s on the phone on that end until you listen in? how do you know if it’s a us person until the call is made?
and: you can only tell where an email address is being picked up from when you “listen in.”
an email address box can be accessed by many people, and email can be written and not actually “mailed” - poeple share the password and then read the previous paragraph and respond in the next.
and you may never know the ID of the “emailers.”
but you can sneak in if you can get the password.
ditto cellphones.
i think that these are technical issues that fisa just doesn’t deal with at all.
February 9th, 2006 at 9:41 am
Of course, if we are going to be dealing with legal proceedings against American citizens, like the Lackawana Six, then we are going to need to gather info for court, correct? Dealing with that factor in this equation is important.
And: because things may be difficult, does not mean that we can’t find a legal way to do them. You keep making this argument one of get the terrorists or not. All I want is adequate checks and balances for domestic activities. I continue to fail to see what is so controversial about that stance.
February 9th, 2006 at 10:16 pm
Dr. Taylor:
You assume that Congress may, consistent with the Constitution, impose a “probable cause” standard on the President in wartime. By that logic, Congress could require the President to have “probable cause” before listening in on the conversations between an enemy submarine and a US sympathizer near Norfolk during WWII. Such a statutory requirement would be unprecedented, and the 4th Amendment, which merely requires searches to be “reasonable” would not prevent such intercepts.
February 10th, 2006 at 6:18 am
That really isn’t a direct analogy to this situation. We aren’t talking about a known beligerent in a military vehicle in the process of attack, we are talking about fishing for intelligence and casting a wide net that can very easily entangle a large number of innocent American citizens. That is problematic.
And we aren’t, legally speaking, “at war.” I will grant that we at war in some senses of the word, but we are not engaged in a declared war against a clear enemy. We have a serious security problem that is going to last for decades. As such, it is a known, long-term condition. I would think that most citizens would therefore want an established, legal way of dealing with this long-term problem.