FISA, the NSA and Bush
These are the facts as I understand them and correct me if I’m wrong:
FISA (The Foreign Intelligence Surveillance Act) was established in 1978 and establishes procedures for conducting surveillance, physical and electronic. There’s much more info here.
It establishes that the Attorney General:
may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.
So, we have here a case in which civil liberties can be overridden in case of emergency by filling out some after the fact paperwork. I’m uncertain what remedy (if any) there exists if the after the fact court authorization is denied. In short, the after the fact authorization is a damn near pointless control. In the event of an emergency, I tend to doubt reasonable people would find such surveillance to be unreasonable. However, that does not mean that the after the fact authorization is an effective means of protecting civil liberties.
Bypassing said after the fact, non-protection of civil liberties has apparently been around since Carter who signed an executive order that stated:
Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.
Clinton signed a similar EO that stated:
Pursuant to section 302(a)(1) of the Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.
I’m not sure what those certifications are but the non-protection, after the fact authorization took another hit. We have a situation wherein the law passed by congress erodes one level of protection (i.e., specifying that after the fact warrants are adequate) and then we have two presidents who signed orders stating that warrants are not even necessary. In other words, the protections afforded in the law aren’t worth the paper they’re written on due to the actions of Congress and two executives.
In other, other words, standard operating procedure since 1978 included after the fact, non protections. And since 1979, even the after the fact, non protections were no longer required. Needless to say, it’s a bit troubling but, in the event there is a specific emergency or a threat, I don’t think you’d find a lot of folks who would state that the .gov should not act. In fact, I think they should. However, this guise of after the fact, non protections is a silly requirement. If they wish to call these after the fact, non protections the review process then they should call it that. They should not be called authorizations because that’s not what they are.
So, it seems to me that Bush has engaged in standard operating procedure that has been in effect for a while. The only thing he’s guilty of is not doing his follow-up paperwork, which apparently may or may not be required.
This is all based on what I’ve read so far. If anyone has any other pertinent info that contradicts what is written here, let me know.
Update: Via Tim F. (reading Kos so I don’t have to), the EOs signed by Clinton and Carter did not mean what I thought they meant.
And Oops.
Update 2: Or maybe not.
Update 3: John Schmidt says the president has the legal authority to authorize taps.
December 21st, 2005 at 5:32 pm
Those after-the-fact authorizations may not provide much protection, but they at least leave a paper trail. If a search is refused by a court after-the-fact, the evidence becomes inadmissable. If the search was egregious enough, there will be a record of who stepped over the line so that someone can be held accountable. I’m not sure we have even that much assurance with what Bush did, though the fact (reported in the NYT article linked above) that a FISA judge conducted a secret audit and found nothing outside the FISA parameters is somewhat comforting.
December 21st, 2005 at 11:02 pm
Bottom Line: We need this. It’s not illegal (see Powerline for chapter and verse). Whomever leaked this is a traitor and should be put away. The New York Times should be shut down.
How will the Dems feel if there is another terror attack and people die because this program is compromised….
Don’t answer that.
December 21st, 2005 at 11:26 pm
I don’t know about the legal arguments, but I do know that one of the justices on the FISA court resigned over these revelations and I don’t think anyone resigned during Clinton or Carter’s term. Granted he was a Clinton nominee, though it should be noted that Rehnquist appointed him to the FISA court.