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January 18, 2007

Terrorist Surveillance Brought Under FISA

Do we all holy rites.
Let there be sung Non nobis and Te Deum,
The dead with charity enclosed in clay,
And then to Calais, and to England then,
Where ne'er from Phrance arrived more happy men !

Mirabile Dictu!

When the half vast editorial staff clambered forth from betwixt the marital sheets in the early morning hours a strange but intoxicating scent greeted us. We breathed deeply of it; savored the invigorating, slightly acrid tang as it coursed through our body, sending tiny shudders from our curly little head down to our shell-pink toes. Why, it was like a little bitter ray of sunshine! We were intrigued: what could this mysterious, unfamiliar scent be?

Finally it came to us.... this was the smell of Democratic victory in the morning:

The Bush administration, in a surprise reversal, said on Wednesday that it had agreed to give a secret court jurisdiction over the National Security Agency’s wiretapping program and would end its practice of eavesdropping without warrants on Americans suspected of ties to terrorists.

The Justice Department said it had worked out an “innovative” arrangement with the Foreign Intelligence Surveillance Court that provided the “necessary speed and agility” to provide court approval to monitor international communications of people inside the United States without jeopardizing national security.

Egad - who would have believed it? Thanks to the People's Congress, the steel-toed Doc Martens of oppression have been lifted from our throats. Now patriotic Americans can finally exercise their Constitutional right to make those Friends and Family calls to Usama without that horrid Mike Hayden listening in. Well actually it turns out he wasn't actually listening in, because there are waaaaay too many phone calls for him to eavesdrop on every single phone conversation. There are only so many hours in a day, you know, even for super-duper shpooks like the folks at the NSA who just *live* to harsh the collective mellows of freedom-loving people like you and the half vast editorial staff.

It's just that in certain situations law enforcement does have a legitimate need to speedy access to phone conversations to save human life, and the FISA warrant process truly was too slow:

I have extensive experience with the consequences of government bungling due to overstrict interpretations of FISA. As chief counsel for the Senate Intelligence Committee from 1981 to 1984, I participated in oversight of FISA in the first years after its passage. When I subsequently became deputy assistant attorney general in the Reagan administration, one of my responsibilities was the terrorism portfolio, which included working with FISA.

In 1985, I experienced the pain of terminating a FISA wiretap when to do so defied common sense and thwarted the possibility of gaining information about American hostages. During the TWA 847 hijacking, American serviceman Robert Stethem was murdered and the remaining American male passengers taken hostage. We had a previously placed tap in the U.S. and thought there was a possibility we could learn the hostages' location. But Justice Department career lawyers told me that the FISA statute defined its "primary purpose" as foreign intelligence gathering. Because crimes were taking place, the FBI had to shut down the wire.

FISA's "primary purpose" became the basis for the "wall" in 1995, when the Clinton-Gore Justice Department prohibited those on the intelligence side from even communicating with those doing law enforcement. The Patriot Act corrected this problem and the FISA appeals court upheld the constitutionality of that amendment, characterizing the rigid interpretation as "puzzling." The court cited an FBI agent's testimony that efforts to investigate two of the Sept. 11 hijackers were blocked by senior FBI officials, concerned about the FISA rule requiring separation.

Today, FISA remains ill-equipped to deal with ever-changing terrorist threats. It was never envisioned to be a speedy collector of information to prevent an imminent attack on our soil. And the reasons the president might decide to bypass FISA courts are readily understandable, as it is easy to conjure up scenarios like the TWA hijacking, in which strict adherence to FISA would jeopardize American lives.

The overarching problem is that FISA, written in 1978, is technologically antediluvian. It was drafted by legislators who had no concept of how terrorists could communicate in the 21st century or the technology that would be invented to intercept those communications. The rules regulating the acquisition of foreign intelligence communications were drafted when the targets to be monitored had one telephone number per residence and all the phones were plugged into the wall. Critics like Al Gore and especially critics in Congress, rather than carp, should address the gaps created by a law that governs peacetime communications-monitoring but does not address computers, cell phones or fiber optics in the midst of war.

The NSA undoubtedly has identified many foreign phone numbers associated with al Qaeda. If these numbers are monitored only from outside the U.S., as consistent with FISA requirements, the agency cannot determine with certainty the location of the persons who are calling them, including whether they are in the U.S. New technology enables the president, via NSA, to establish an early-warning system to alert us immediately when any person located in the U.S. places a call to, or receives a call from, one of the al Qaeda numbers. Do Mr. Gore and congressional critics want the NSA to be unable to locate a secret al Qaeda operative in the U.S.?

If we had used this ability before 9/11, as the vice president has noted, we could have detected the presence of Khalid al-Mihdhar and Nawaf al-Hazmi in San Diego, more than a year before they crashed American Airlines Flight 77 into the Pentagon.

And to correct an oft-cited misconception, there are no five-minute "emergency" taps. FISA still requires extensive time-consuming procedures. To prepare the two- to three-inch thick applications for nonemergency warrants takes months. The so-called emergency procedure cannot be done in a few hours, let alone minutes. The attorney general is not going to approve even an emergency FISA intercept based on a breathless call from NSA.

For example, al Qaeda Agent X, having a phone under FISA foreign surveillance, travels from Pakistan to New York. The FBI checks airline records and determines he is returning to Pakistan in three hours. Background information must be prepared and the document delivered to the attorney general. By that time, Agent X has done his business and is back on the plane to Pakistan, where NSA can resume its warrantless foreign surveillance. Because of the antiquated requirements of FISA, the surveillance of Agent X has to cease only during the critical hours he is on U.S. soil, presumably planning the next attack.

Even if time were not an issue, any emergency FISA application must still establish the required probable cause within 72 hours of placing the tap. So al Qaeda Agent A is captured in Afghanistan and has Agent B's number in his cell phone, which is monitored by NSA overseas. Agent B makes two or three calls every day to Agent C, who flies to New York. That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism. Yet, post 9/11, do the critics want NSA to cease monitoring Agent C just because he landed on U.S. soil?

Yawn.... boring technical details again. Change the channel. Isn't Keith Olbermann coming on soon to tell us our beloved Constitution has been passed slowly through a Cuisinart before being fed to Barney the White House Terrier? But what really gets our freak on is that a small black dog has finally displaced Bill O'Reilly as the longest-running Worst Person in the World. For all we know, the little bugger offed David Gregory too and buried him in an unmarked grave under the Rose Garden. Well that tears it - no more BarneyCam for us. Nossir.

Damn. At any rate this latest news obviously confirms what we knew all along: Congressional fears of an out-of-control Executive branch were clearly well-founded:

Board members said that they were impressed by the safeguards the government has built into the NSA's monitoring of phone calls and computer transmissions, and that they wished the administration could tell the public more about them to ease distrust.

Former Clinton liberals and privacy experts have been briefed on the program and have pronounced themselves "impressed by the government's concern for our liberties":

"If the American public, especially civil libertarians like myself, could be more informed about how careful the government is to protect our privacy while still protecting us from attacks, we'd be more reassured," said Lanny Davis , a former Clinton White House lawyer who is the board's lone liberal Democrat.

Even more fun than the usual round of progressyve triumphalism will be the roundup of reich-wing reax. Some, predictably, will recoil in horreur at this show of Presidential 'retreat', as though the war on terror were some sort of Article II pissing contest and winning the instant battle were more important than winning the larger war. As someone who stands to lose a husband and a son if things deteriorate, we can't quite see it that way. The President has never billed himself as anything but a pragmatist; this is why we have always supported him. The knock on him all along has been that he supposedly has not had backup plans. Now all of a sudden he is getting rapped for having a fall back in case things went the way things were predicted to go (Congress turning over) well over a year ago?

Sometimes we wonder. We really do. It's all fine and dandy to have lofty principles, but if a program is vital to national security, you secure its survival at all costs, and that means having Plans B, C, and possibly D, E, and F. As John Hinderaker says, and this is our sense, only time will tell (and most likely we will never know) whether the agreements the administration has negotiated with FISA have compromised the integrity of the program:

Gonzales assured the Senators--not that they care, necessarily, but we do--that security will not be compromised because the court authorization "had to ensure that the Intelligence Community would have the speed and agility necessary to protect the Nation from al Qaeda--the very speed and agility that was offered by the Terrorist Surveillance Program." He adds that "These orders are innovative, they are complex, and it took considerable time and work for the Government to develop the approach that was proposed to the Court...."

So what has changed? It's hard to say. These "orders" presumably authorize the NSA to initiate surveillance under emergency circumstances without going through the cumbersome FISA warrant process. Frankly, I haven't had time for extensive research, but it isn't obvious what provision of FISA authorizes such blanket "orders."

In any event, the administration seems to have found a solution that allows the Terrorist Surveillance Program to continue in all but name, while defusing the criticisms of the program--which were, in my opinion, almost entirely unjustified.

That the administration has been working with the judiciary for over a year confirms that the White House was not, as John Rockefellar insists, hell bent on a "go it alone" strategy.

That Congressional Democrats still intend, despite the White House's move to bring the NSA program under court oversight and the statements of several civil liberties groups that protections in the program were "impressive", to continue their investigations demonstrates that their concerns are largely driven by partisan politics rather than any geniune desire to ensure adequate oversight.

In other words in over a year, little has changed. Capitol Hill is still Capitol Hill.

Posted by Cassandra at January 18, 2007 05:43 AM

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