Tuesday, December 27, 2005

NSA wire tapping question

RantingProfs offers the following well formed question about the NSA "scandal":

isn't the speed issue less one of getting to the caller before a relevant call has been made and missed, and more getting to the phone before the caller realizes that the terrorist who had the number in their possession is out of commission, possibly therefore captured, and the relevant number compromised? That is, after all, why governments tend to delay announcements that terrorists have been captured for 48 to 72 hours: they want time to make use of any intelligence the terrorist has in their possession, going to addresses, arresting people there, eavesdropping on any phone numbers in their possession.

Once a certain amount of time has gone by the government might as well go public because presumably the terrorist's palies will figure out he's out of the game, and bail on any addresses or phone numbers they know he had on him. Isn't that the shelf-life that's relevant?

I suspect this is indeed at least part of the question. We are not dealing with an organized crime investigation where the FBI spends months or even years building a case. We are talking about trying to track a web of people across the world who regularly change email addresses, web sites, disposable cell phones, etc. They also tend to travel a lot. Everyone in the know about FISA I have heard says that the FISA process has at least two problems in this kind of intelligence gathering. First, it takes days to run through the process. It has been pointed out by critics that a FISA judge is available 24x7 to approve applications for warrants. What is usually left out is the number of people that have to review and approve the application before it is presented to said judge. That is the second problem with using FISA. Too many people have to be in the loop. Aside from the possible security leak problem that presents, most of those people are not foreign intelligence gathering experts. Why would that be the case for "Foreign Intelligence Security Act" participants? FISA was designed to assist the FBI in catching foreign criminals who are breaking US law, not to help us catch terrorists. They are generally well versed in criminal investigations where one or more participants is a non-US person. They are not the experts on tracking terrorists.

RantingProfs concludes:

Does that in any way impact the debate over the difficulty in going to FISA?

I think the answer to that is yes. That is not the only difficulty but it does impact it.

Ed Morrissey's piece in the Weekly Standard goes even further in dissecting the issue.

The core of the issue is this: the NSA and the administration defined international communications as including those where one end--and one end only--occurs in the United States. Anything else still requires a warrant, as the Times acknowledges.

MOREOVER, the NSA's efforts did not take place in darkness. The FISA court did get informed of the issue, and the leaders of the oversight committees in both houses of Congress from both parties took part in the decision. It does not appear that the Bush administration sought to hide this from the other two branches of government, but sought to include them in the oversight of the new process as much as possible within the secrecy needed to conduct the program during wartime.


If one reads further into the Times's long and detailed article, the Bush administration received precedential decisions from courts that acknowledged the executive authority to wage war included a broader authority to set the parameters of espionage in order to guarantee security. Clearly, the administration has sought to comply with the letter of the law while getting the best possible information as quickly as it could to prevent another devastating terrorist attack.

So there is not only no evidence that the Bush administration did this in a vacuum, even the original Times piece acknowledged that the other two branches were briefed on it in their oversight roles.

Further, why would the President use the FISA court to do what the Supreme Court has said he has the power to do without it? There is the possibility of weakening the inherent Constitutional power of the Presidency as acknowledged multiple times by different Supreme Courts.

Some have questioned why, if the President believed he needed to do these searches without a warrant, the administration did not lobby Congress to pass a law explicitly allowing him to do so. The answer to that is obvious. If the Constitution allows it, and the Supreme Court has said it does, the President doesn't need a law. Why would he ask for a law to do something that implies that he doesn't have that power in the absence of a change in law? The point is that no change in law was needed.

There are laws in my area about needing to keep my dog on a leash in public areas. Should I go to my legislature and ask for a law to be passed allowing me to let my dog run off leash in my fenced back yard? Of course not. I implicitly have that right. The President believes, based on multiple unchallenged Supreme Court rulings that he had a right to do what he did. Further, he bothered to inform the other two branches of government that he was doing it. He, therefore, can not be accused of restricting the rights of the Congress for intelligence oversight or the right of the Court to interpret the Constitution and the law.

If there is a legal challenge actually mounted there are only two choices.
1. The Supreme Court confirms, again, this right of the Presidency.
2. The Supreme Court reverses precedent, making it not legal for the program to continue.

There is no rational way that the court can rule that the President violated the law as they will have to acknowledge (assuming what little we know is true) that he was acting in good faith according to the previous precedent they are overturning.

This is a bigger "non-scandal" than the Boulder football recruiting non-scandal.


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