Reasonably Ascertainable Reality

Thoughts and musings on current events and other random occurrences.

Location: South Jersey, United States

Wednesday, January 25, 2006

NSA and What I Dont Understand

Over at Justus for All, I made a comment/question, which to my satisfaction, still hasn't been answered.

Basically, what is it about the FISA law that hampers the administration and intelligence officials so badly, that they must bypass in order to protect the country? What is it about the 72-hour after the fact time allowance that hampers the ability to get warrants? And if FISA put such handcuffs on the intelligence community in investigating these leads, why weren't changes to it sought? Surely, after 9/11, when something like the Patriot Act was able to be passed, changes to FISA could have been made as well.

This bothers me for one reason...why? Why not go get the warrants? What is the adminstration trying to hide? Dave posits that its all related to 'probable cause':

My guess is probable cause is the problem. We have a lot of ‘maybe terrorists or terrorist sympathizers’ out there that we don’t have enough evidence are directly involved. Doubtless, terrorist organizations try to route communications through unknown people to prevent them from being interecepted.

...Probable cause in my opinion is a great standard for prosecution and a horrible standard for intelligence gathering.

This seemed like a rational reason. I can put it along with the 'constitutional authority' reasoning, the 'it takes too long' and '72 hours isn't enough time reasoning'. But here is the problem...

In June, 2002, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA. Specifically, DeWine's legislation proposed:

to amend the Foreign Intelligence Surveillance Act of 1978 to modify the
standard of proof for issuance of orders regarding non-United States persons
from probable cause to reasonable suspicion. . . .

In other words, DeWine's bill, had it become law, would have eliminated the "probable cause" barrier (at least for non-U.S. persons) which the Administration is now pointing to as the reason why it had to circumvent FISA.

Sounds pretty good right. So there was someone trying to change FISA. Here is where is goes all bad:

The reforms in those measures (the PATRIOT Act) have affected every single application made by the Department for electronic surveillance or physical search of suspected terrorists and have enabled the government to become quicker, more flexible, and more focused in going "up" on those suspected terrorists in the United States.

One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISA's pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats. Again, we are grateful for the tools Congress provided us last fall for the fight against terrorism. Thank you.

The Department of Justice has been studying Sen. DeWine's proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it.

Thats James A. Baker, Justice Department lawyer. So someone explain to me why now FISA isn't good enough; 72-hours isn't good enough and why probable cause isn't good enough.

Read Greenwalds whole piece. Its pretty disturbing. I wasn't too crazy about the idea of the warrantless tapping, however, the more excuses which are offered and the more information and examination of the past, its becoming more and more clear that there is, apparently, something to hide. And to say that those criticizing these actions or who are looking for an explanation are 'chicken littles' or even worse to say something like "Let me be as clear as I can be: President Bush believes if Al Qaeda is calling somebody in America, it is in our national security interest to know who they're calling and why," Mr. Rove said. "Some important Democrats clearly disagree." I think is really misleading and really just trying to decieve people.

Awaiting the outcome of all this; however instead of feeling more comfortable, I'm feeling more and more duped.


Blogger Dave Justus said...

The controversy here is about U.S. persons, not non-U.S. persons, so I don't know that DeWine's bill is particularly relevant.

I would imagine, that if FISA had been changed in 2002 in this way it would place more, rather than less, doubt about the legality of the President's program. If, the AUMF filled the FISA requirement for statutory authorizition then DeWine's propossal wasn't needed, but passing an ammendment to FISA would weaken the case that the AUMF fulfilled that statutory obligation.

"ts becoming more and more clear that there is, apparently, something to hide."

That has been obvious from the beginning. One theory is that the President is running roughshod over the laws and Constitution and perhaps targeting political opponents. Another theory, one that seems more likely to me, is that despite the leaks, the Administration is doing everything it can to preserve as much secrecy about this program as possible, because the less that is known about it, the more useful it is.

We have only the vagest outlines of what is being done, and the legal defense of the program is trying to avoid further revelations. This makes a legal defense very difficult. They can't tell us we do x because when y and z happen we couldn't do it any other way, without explaining y and z, and tipping off those we are trying to listen in on to the need to avoid y and z.

There is a huge paradox between a free and open society and secret government programs. We need to have secrets, but fundamentally such things are anti-thetical to our core beliefs.

I don't think it wrong to be concerned, I am, but also I think it wise to trust our elected officials to some extent. I don't think we have a Hoover running things and collecting blackmail info on opponents. Congress will be looking into this, and key members of the House and Senate will recieve a lot more details than we will. To some degree at least, they already have.

We probably won't fully be able to judge if this is a good or necessary program without destroying the program.

I do worry that some Senators and Congressmen (Democrats in this case, but if things were reversed there would be Republicans doing the same thing) who would trade a partisan advantage over national security. I hope I am wrong, and that type doesn't exist in congress.

11:44 AM  
Blogger Katinula said...

I understand your point and agree about secrecy, but there has to be some oversight, even for top secret programs. By all accounts, the 'briefing' of Congress was incomplete at best and the way the administration is going about it, there is no judicial oversight either. Even secret programs need oversight. One branch of gov't can't act with virtually no oversight. That is what scares me.

12:05 PM  
Blogger Dave Justus said...

I would say by some accounts the briefing was incomplete. It is difficult to say whether that it true or political cover.

The vast majority of our 'secret programs' don't in fact have judicial oversight. If the CIA or some similar TLA is doing something, their is no judicial oversight unless someone alleges a wrong. In many cases, lets say the CIA wants to overthrow the Government of XXX, there would not be judicial oversight, although their would be briefings of select members of Congress.

Perhaps this is a problem, but if it is it is hardly a NEW problem.

4:46 PM  

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