NSA Program Ruled Illegal
The Bush administration's sudden eagerness to amend FISA finally makes sense to me. Both Newsweek and the Los Angeles Times are reporting that a FISA judge issued a secret order a few months ago finding a major part of the NSA program to be illegal. The Bush administration is now scrambling to get some sort of legislative fix pushed through Congress. Here's what Newsweek says:
Then in 2005, when the existence of this scaled-back program was publicly reported, the Bush administration "confirmed" only the least controversial (but still illegal) aspects of it and labeled that part the "Terrorist Surveillance Program."
This publicly-acknowledged subprogram was then found to be illegal by a federal judge (her decision was later overturned on jurisdictional grounds).
Then, in order to avoid any further adverse rulings (which were inevitable), the Bush administration decided in January to submit an even further scaled-back version of the program to the FISA Court for review.
Now we learn that the FISA Court has concluded that even this thrice-scaled-back program is illegal, and the Bush administration is finally seeking Congressional authorization.
Many of us have been saying for a long time now that the legal theories underlying the Bush administration's surveillance activities are rubbish. We were clearly right.
The order by a judge on the top-secret Foreign Intelligence Surveillance Act court has never been publicly acknowledged by administration officials—and the details of it (including the identity of the judge who wrote it) remain highly classified. But the judge, in an order several months ago, apparently concluded that the administration had overstepped its legal authorities in conducting warrantless eavesdropping even under the scaled-back surveillance program that the White House first agreed to permit the FISA court to review earlier this year, said one lawyer who has been briefed on the order but who asked not to be publicly identified because of its sensitivity.Let's quickly review the history of this program that nearly every right-wing pundit and blogger has long insisted is perfectly legal. First, the Vice President pushed for an expansive domestic warrantless surveillance program that, even in the immediate aftermath of 9/11, the lawyers at the NSA refused to go along with. The program that was actually implemented was then determined to be illegal in 2004 by Republican lawyers in the Justice Department, causing it to be temporarily shut down and then scaled back significantly.
Then in 2005, when the existence of this scaled-back program was publicly reported, the Bush administration "confirmed" only the least controversial (but still illegal) aspects of it and labeled that part the "Terrorist Surveillance Program."
This publicly-acknowledged subprogram was then found to be illegal by a federal judge (her decision was later overturned on jurisdictional grounds).
Then, in order to avoid any further adverse rulings (which were inevitable), the Bush administration decided in January to submit an even further scaled-back version of the program to the FISA Court for review.
Now we learn that the FISA Court has concluded that even this thrice-scaled-back program is illegal, and the Bush administration is finally seeking Congressional authorization.
Many of us have been saying for a long time now that the legal theories underlying the Bush administration's surveillance activities are rubbish. We were clearly right.
posted by A.L. at 9:48 AM
5 Comments:
It begs the question, if the "thrice scaled back" version is still illegal, exactly how bad was the original progra,?
Considering how much is permitted under the current version of FISA, what could they have been doing that almost caused mass resignations in the DOJ?
Mere domestic spying doesn't seem bad enough, nor that critical. Could it be (gasp) that the White House was using the FBI/CIA/NSA to spy on their political opponents?
Naw, no President would ever do that, would they?
Sure hope Feingold is on hand to provide at least a little spinal tissue to the Democrats on this one. See that quote from Kitt Bond? Man, what a piece of work.
Hey A.L.,
Makes you wonder if the FISA court has finally ruled on the "probable cause" issue?
While the issue of probable cause may have not previously been ruled upon as a matter of law, I know that DOJ employees were not allowed to obtain search or arrest warrants w/o probable cause.
The government clearly does not have probably cause to obtain all people's records by simply attaching massive routers (thus, the data mining) onto the telecoms optical cables. ;-)
It looks to me like this was the original NSA program as refactored into a clearly FISA compliant part and an algorithmic catch-all to classify certain other cases as acceptable (pseudo-compliant).
One official said the issue centered on a ruling in which a FISA court judge rejected a government application for a "basket warrant" — a term that refers to court approval for surveillance activity encompassing multiple targets, rather than warrants issued on a case-by-case basis for surveillance of specific terrorism suspects.
"One FISA judge approved this, and then a second FISA judge didn't," the official said, speaking on condition of anonymity because the activities of the FISA court are classified.
Can anyone explain why the total secrecy of whether there was a decision and who the judge was?
This is the part of FISA that bothers me. Yes The secret of HOW/WHEN I am listening needs to be secret. Why is is so important to keep secret that we are listening to call going overseas? I'm sorry, but you have to have one very stupid terroist who would assume that a call made overseas would not be of interest to the US. What is wrong with "We have a survelance program under FISA jurisdiction that is monerting all communications with one party who is overseas" . Details are secret. Secret courts need extra oversight since it is so easy to abuse them.
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