Reasonably Ascertainable Reality

Thoughts and musings on current events and other random occurrences.

Location: South Jersey, United States

Monday, January 28, 2008

FISA Madness

Well, a big day in the Senate as debate on reauthorization of the Protect Amercia Act -- my god that name alone strikes Orwellian fear in my heart -- rages.

I have asked this before and have yet to get an unqualified, reasonable answer. I've gone looking for answers on right-wing blogs...still nothing. So I'll throw it out there.

How does having to obtain a warrant endanger national security? Now, all responses must include conscious knowledge of the fact that FISA allows the government up to 72 hours (3 days) to conduct surveillance and obtain a retroactive warrant.

Please, someone educate me.


Blogger Dave Justus said...

My understanding, and I can't recall where I read this, is that while they have 72 hours to actually present their case to the FISA court, they actually have to have that entire case prepared before they can begin wiretapping. Any paperwork or whatever else is required has to be ready before they can begin surveilance if the surveilance requires a wiretap.

The 72 hour thing is probably so that if everything else is ready, but it is a weekend or something, the surveilance can proceed. It doesn't exempt the surveiling agencies from having all the evidence, documents, whatever, that they would need to get a warrant. Additionaly, they can't use any evidence they gained from the surveilance or picked up later, to justify that retroactive warrant.

In other words, if their was a judge always on duty at the NSA (or wherever) the 72 hour thing would never come into play.

I have a counter question for you though. If indeed this power is not needed, what is your explanation for why so many intelligence personnel have said it is needed?

9:39 AM  
Blogger Katinula said...

Well, I think, and this is saying something, you aren't giving the government much credit here. Just given the actual purpose of the FISA court, I'm pretty sure they arent sticking to business-day only type of procedures. The law itself mandates that judges hear cases as "expeditiously" as possible and that at least 3 of the appointed judges live within 30 miles of DC.
Additionally, I think 72 hours is plenty of time to justify a warrant for surveillance. Exactly what is it that the government has to get together, besides meeting a standard for surveillance. Considering that from 1979-2002, only 4 applications for warrants have been denied, and 2 of those were later approved, this does not seem to be too restrictive.
I have not heard from many actual intelligence officials stating that this specific warrantless provision is needed. The only people I hear saying that are from the actual administration. Considering that those defending this practice were likely either actually involved, or at least knew about, this law-breaking activity, I'll pause to consider the source. Additionally, in 2002 the Bush Administration did not support modifications to FISA which would have fixed what they are now claiming is the reason it needed to be circumvented. See my post from January of 06 -- FISA and What I dont Understand (can't post link here for some reason -- or not smart enough too :). I'd like to know what changed from then (after 9/11) and now -- besides the adminstration actually getting caught breaking the law?

4:00 PM  
Blogger Dave Justus said...

"Exactly what is it that the government has to get together, besides meeting a standard for surveillance."

Nothing of course. But what that is, we honestly don't exactly know.

Nothing of what you said contradicts anything that I have said, how many have been refused etc. doesn't have anything to do with what evidence needs to be had and just plain old paperwork needs to be done before surveilance can begin. As I stated, my understanding is that all that has to be done before it begins, not within 72 hours of when it begins. The Judge has to see and approve it within 72 hours, but it has to be done first.

That may be reasonable. In many situations, I think it is entirely reasonable. In some limited situations I think it is probably unreasonable. My point is though, that the 72 hours is a red herring put up by many to obsure that all the requirements, exect the actual judges signature, must be completed before the surveilance starts. They cannot go 'I think we can get everything we need to gain this warrant, lets start taping.'

11:31 AM  
Blogger Katinula said...

So do you support changing the law to make this legal? All based ostensibly on just the possibility that making the case for a warrant would seem to take more than 72 hours? I dont know, I need a higher burden of proof before I so willingly give over my rights. Especially given that the evidence doesn't really support that claim. I mean, just thinking that putting together a case for surveillance would take more than 72 hours is not enough reason for me to conclude that the almighty federal government should be able to listen to my oversees communications without a warrant. If thats the case, why not support some type of change in the law that would provide a lower standard of proof, or maybe a truncated presentation to the judge. I dont know Dave, I just don't get it. I don't want to put words in your mouth, which is I why I asked if you supported this, but it would seem to me as though such an massive expansion of federal surveillance powers would require something more than "well, it might take more than 72 hours to get all the paperwork in order."

4:44 PM  
Blogger Dave Justus said...

I am a bit agnostic on the issue. I haven't seen any great arguments for it (possibly due to the difficulty of selling something you want to be as secret as possible) but I also haven't seen any real good arguments against it either.

Once again though, it isn't a question of whether putting together a case would take more then 72 hours or not. The case MUST be put together entirely before the surveilance starts, then you have 72 hours to get the already completed case to a judge.

Here are a few of the things that I do think about this issue. One is that protection against searches doesn't apply when crossing the border. The Government can search your luggage when you enter or leave the U.S. without probable cause of any type. It doesn't seem unreasonable for a similar principle to apply to cross-border communications. Secondly, I think it reasonable to have a different standard for gathering data for military and defense purposes then it does for criminal prosecution. Generally I think it a good idea to err on the side of getting to much when it comes to protecting people (identifying a target or a plot) and to err on the side of not getting enough when it comes into prosecution. If that means that we gather data that is unusable for a criminal conviction, but is still able to prevent an attack I am ok with that. I do think as a general principle that government should intrude on privacy as little as possible. And lastly, I think we should have better oversight, in particular I think that their should be a window after which this sort of activity becomes more public, knowing that what they had done will be more and more open to analysis over time would seem to me to be a useful deterent on undesirable activity.

12:26 PM  

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