Why Wouldn't They Go to the FISA Court?

Laura Rozen thinks that Noah Schachtman is right: the NSA domestic intercept program that the Bush administration set up to evade oversight by the FISA court is the result of improvements in technology followed by utter stupidity in its application:

War and Piece: I think Noah Shachtman is onto something. Wonder if some new data mining or other technology meant that the way they got "probable cause" was through what the courts would deem illegal search and seizure? Is this about some technological application that has an implicit policy change the administration never declared? So you start by mining every single communication to and from Afghanistan and you mine some significant patterns and work backwards? But why even at that point -- when let's say they had a list of targeted phone numbers or specific individuals in the US they then wanted to surveil -- would they not then go to the FISA court, which surely would be sympathetic to their security argument, and one would then have, with a court-approved wiretap, potentially legally admissable evidence? Why stick with a program that could never be used in court?

I don't think we can understand this warrantless NSA spying on Americans story without its connection to the whole secret extra legal other decisions the Bush administration has made mostly in secret - the torture, the extraordinary renditions, Gitmo, secret prisons, declaring unilaterally US citizens like Padilla and Hamdi enemy combatants, instantly denied the rights of US citizens, because clearly, the Bush administration never meant to try any of the people picked up by this program in a court of law.

And for such vast, extra legal search and seizure of captured communications, why do they seem to have so very little to show for it? And why did they not consider creating some oversight mechanism, that would give the program some pretense to legitimacy? Why was this policy change all done in secret, with those authorizing the program the same ones who allegedly "oversaw" it, answerable to nobody, a perfect circle absolutely ripe for abuse?

And I think there's a whole new set of hurdles to Alito's nomination that just appeared, that may make even Republican Senators resist putting someone on the Supreme Court who would deem such secret executive powers at the cost of those of Congress.

Let me sharpen that: after this, I cannot see how Alito can be confirmed. If the Bushies are smart, they will withdraw Alito's nomination now.

As to why they didn't create some oversight checks-and-balances--why they weren't worried about handing such powers to a future left-wing president--there are two possible answers: (a) They are really stupid. (b) They are really evil--they do not intend for there to be a left-wing president ever again. I vote for (a) myself. I wish I could suppress the still small voices in my head that are whispering (b).

I hate the way this administration has turned me into a nutbar conspiracy theorist.

Impeach George W. Bush. Impeach Richard Cheney. Do it now.

Comments

[camille roy]

You forget that Bush sees his mission in Iraq as ordained by God. He also reportedly sees the Republican Congress and his re-election as signs that God approves his policies.

Of what use are the laws of men when you have God on your side?

[matt]

It's us nutbar conspiracy theorists who have anticipated and called just about everything that this corrupt, illegal junta was going to do next.

There was just a ruling from the FDA that states the anthrax vaccine is OK for cases of inhalation anthrax. Wanna bet a case pops up that gives this administration and its cronies in Big Pharma an excuse to a.)exercise the quarantine provisions of the MPEHA, and 2.)force the vaccine on unwilling, and possibly, unwitting guinea pigs in violation of the Nuremberg Principles of informed consent?

Don't put anything past these people. They are the direct descendants of Richard Nixon. Hell, we have him to damn for the rise of the House of Bush. After all, if Poppy hadn't been such a great brown noser, his star wouldn't have been as ascendant as it was and maybe Dubya would just be another two bit Texas millionaire failure instead of the poster boy for the demise of American democracy.

BTW, if this is what got Nixon done in, where is the honorable Republican who will come forward on the floor of the House to introduce articles of impeachment? I don't see Chris Shays tripping over himself to do the right thing.
I don't think there's a Republican alive who knows what the right thing is any more. Come to think of it, there aren't many Democrats who know what it is either.

[The Fool]

Brad said, "why they weren't worried about handing such powers to a future left-wing president--there are two possible answers."

Actually there's a third possible answer and it is probably the right one: Democrats don't do that kind of shit. They're not worrying about it because they know we wouldn't do it.

[Rebecca Allen]

I don't think it's that they plan to prevent another Dem president; I think they just don't expect one for the foreseeable future. They hold Dems in such utter contempt that I think they can't fathom that one might win a presidential election again. That was a strain running through all the get-Clinton efforts, that caused them to be unable to see how unpopular these efforts were: They simply couldn't fathom that many of the American people liked Clinton and had willingly voted for him. It's a crucial disconnect on their part.

[Cranky Observer]

Well, another possibility is that they are surveiling their political opponents. And/or journalists; this could explain why the WaPo is so reluctant to print anything not pre-approved by the White House.

Cranky

[Gerard MacDonell]

Alito has one thing going for him. The idiot left will turn this into another referendum on abortion, unfettered access to which seems to trump every other value including separation of power. So all Alito has to do is sound vague on partial birth, and he will be free to pursue his constitution destroyin ways.

The right is an abomination. But our left is an ineffectual joke.

[Billmon]

"b.) They are really evil--they do not intend for there to be a left-wing president ever again."

This is objectively true -- and has been at least since the Reagan presidency. The real question is what they are willing to do to make their "intention" becomes a reality. So far, that's included a lot of nasty stuff, but not actually calling off an election or refusing to accept a clear defeat at the polls.

My own paranoid fear is that the leading members of the regime have boxed themselves into a situation where they might seriously believe they either have to stay in power forever or go to prison for a long, long time. But I'm also reasonably confident they understand that even if they won back the White House, the Democrats would never have the stones to go after them -- or allow the career prosecutors at DoJ to go after them. That would be too much like the Washington Generals actually defeating the Harlem Globetrotters.

And on that fragile foundation, the safety of the Republic -- or at least, its nominally democratic system of government -- rests.

[ahem]

The WH press isn't that tech-savvy, so they're not asking the right questions.

Bush and Rice both made a distinction between 'detection' and 'monitoring'. I think this distinction is important, because it suggests the trawling and data-mining of a large data corpus to match up with a relatively small set of targets.

The big question is this: what is the size of the corpus being used for detection?

"My own paranoid fear is that the leading members of the regime have boxed themselves into a situation where they might seriously believe they either have to stay in power forever or go to prison for a long, long time."

The founders believed that the self-interest of the President's party in Congress would lead them to impeach, in spite of their party affiliation. That is no longer true, given the amount of dirt that would emerge on the DeLay machine.

[jim]

"a future left-wing president"

From which party? Socialist? CPUSA?

[Will Hutchinson]

I think the simple answer as to why the Bush administration doesn't care about what a future Democrat president might do is that the Bush administration is not much interested at all in what comes after the Bush administration. At least not in a practical sense. Bush loves to fantasize about the permenant Republican majority, and endless presidential dynasty started by him, and the future all-democracy Middle East placing him atop Muhammed in their history books.

But in a practical sense, he and his administration just do not have the good sense of competent actors to plan ahead. What matters is getting what they want now. Which is why they happily increase spending and lower taxes. Or trash the environment. Look at the circles in which Bush associates. His friends are the CEO's who want to maximize quarterly profits, to get as much personal compensation as quickly as possible, without worrying about leaving a wrecked company or country after they've cashed out.

Remember the selling point of Cheney for VP was that he wouldn't be seeking further office himself later, that he could focus entirely on just the Bush presidency. And remember further that Cheney was politically inspired by Nixon, the greatest example of a president who believed in completely unrestricted presidential power, without a second thought as to what future presidents might do with it, without a second thought to even what crippling damage he himself was doing to his own party. (And of course, it was his own party that finally forced him out of office.)

And remember, that in the Bush mindset, the ends justify the means. The great men do the great things. If he does a great thing, be it removing Saddam, democratizing the Middle East, or dismantling the New Deal, then that will have made him a great man, even if there were shortcuts involved, even if he was handing dangerous precidents to future presidents that might oppose his views. But if they oppose his views, then they clearly could not be great men, and so they would be unable to do great things, even if they had some executive-power tools left over from Bush's reign.

[otto]

Is Alito personally connected to the FISA debacle? If not, surely all he has to do is to cast doubt on its legality in the January hearings and he is home and dry ("showing w welsome independent streak", as the NYT will say).

As for why they wouldn't go to the FISA court, the answer is that their legal doctrine is all powers lie with the executive in times of emergency, as per Carl Schmitt. Look it up.

[Joe S.]

"If the Bushies are smart, they will withdraw Alito's nomination now."

They can't afford to. The Texas Taliban would go bananas. Because of the capital Bush squandered on Miers, Bush can't afford to drop Alito. Gerard MacDonell is correct: the idiot left sees nothing but abortion in Alito. But thankfully, so do the Talibs.

Let's hope that the Senate also looks at the fascism. We only need 41 votes; the nuclear option is off the table. And, after this FISAgate, maybe even a few Senate Republicans are on the cusp.

[ricardo]

I posted this also at "The Carpetbagger Report"...

"I want to frame some of this:

Price of the "War on Terror" to date is something like $250 billion…now suppose that there had been 1000 Al Qaeda bad guys that needed to be brought to justice for 9/11- that's something like $250 million per bad guy…that's real money and Bin Laden has still not been brought to justice…(of course, Bush rejected the notion of simply bringing the perpetrators of 9/11 to justice and launched his monolithic "War on Terror" instead).

Meanwhile we learn that the "War on Terror" has metastasized into an extra-Constitutional NSA surveillance dragnet…the NYTimes suggests that hundreds or thousands of persons have been subject to this kind of surveillance…

I'm hoping that some of the brighter bulbs in Congress are asking themselves fundamentally what is being accomplished with the blank checks they continue to write the Bush administration for the "War on Terror."

I'm not alone in thinking that instead of justice for 9/11, we have substituted for it something like permanent war, a classic Orwellian nightmare…"

[liberal]

Gerard MacDonald wrote, "The idiot left will turn this into another referendum on abortion, unfettered access to which seems to trump every other value including separation of power."

Strawman.

Go to the People for the American Way website (they're a good example, insofar as they're one of the leading "left" organizations on SC nominations). They have a bunch of stuff about Alito. Sure, they mention abortion, but they mention other things too.

[/a]

(c) As soon as a left-wing president even thinks about using these powers, the right-wing media machine will pivot neatly into denouncing such dictatorial violations of the constitution. It will do no good to point out that Bush did it first --these people are immune to cognitive dissonance.

See, for example, the acceptability of presidents lying.

['As You Know' Bob]

billmon: So far, that's included a lot of nasty stuff, but not actually calling off an election or refusing to accept a clear defeat at the polls.

Umm,
1) September 11, 2001 was a Primary Day in NY.
It was cancelled. There was not a murmur of protest, so now they know they can.

2) Bush v. Gore was filed to prevent the Florida votes from being counted - because "counting the votes might cause harm to [Bush]".

[Arun Khanna]

I offer an alternative explanation. It could simply be that Bush administration anticipates that a future President from the Democratic Party would want to continue having such a program perhaps in a curtailed manner. For better or for worse, Presidents of either party once in power tend not to differ that much on national security.

[ricardo]

I'm looking at Nixon's Articles of Impeachment - they passed a House committee vote but he resigned before the full House voted on them.

Here's a link:
http://watergate.info/impeachment/impeachment-articles.shtml

Remember that Nixon got into trouble for mis-using the FBI (among others)...from Article of Impeachment 2, Paragraph 2:

"He misused the Federal Bureau of Investigation, the Secret Service, and other executive personnel, in violation or disregard of the constitutional rights of citizens, by directing or authorizing such agencies or personnel to conduct or continue electronic surveillance or other investigations for purposes unrelated to national security..."

The Nixon Articles of Impeachment, of course, pre-date the tightening of surveillance under the Foreign Intelligence Surveillance Act of 1978 (FISA).

Just wondering if the NSA surveillance Bush ordered has remained strictly security-related...lol.

[BroD]

Will is right: W don't give a shit about anyone or anything but W.

[Slocum]

I'm with Arun Khanna -- the Bush admin probably figures a Dem administration would use the same capabilities for roughly the same purpose. I'm puzzled by people who think the Dems are really fundamentally better on this kind of thing. Remeber Clinton's encryption export controls and proposed mandatory encryption key escrow program? Remember Barry McCaffrey? Hell, the initial expansion of FISA was done by Clinton--Bush's actions are a continuation of a process started under Clinton.

[trotsky]

There was, allegedly, a DoJ review of this program every 45 days, and the FISA courts and the congressional intel c'tees were at least informed about it. It's "super-secret" and all, but obviously enough people knew about it for James Risen to get dozens of (off-the-record) interviews.

[washerdreyer]

I'm also unsure about the connection Alito, how he is hurt any more by this violation of FISA than anyone else who Bush might nominate?

[The Fool]

I call bullshit on Slocum. Clinton never broke any laws by abusing any encryption requirements. He instituted no policy to violate civil rights. Your citation of the expansion of FISA doesn't even make sense. He never bypassed FISA like Bush is proud of doing. You're an idiot Slocum.

[The Fool]

I call bullshit on Slocum. Clinton never broke any laws by abusing any encryption requirements. He instituted no policy to violate civil rights. Your citation of the expansion of FISA doesn't even make sense. He never bypassed FISA like Bush is proud of doing. You're an idiot Slocum.

[Something Polish]

Billmon nails it. 'As you know' Bob makes some good points.

Why stick with a program that could never be used in court?

They could easily have gotten their way, even if it came down to a Constitutional Amendment, which it wouldn't have. But this way was easier and, they felt, would set some very helpful precedents. Fuckers.

[lise]

Ah, I understand, the problem is Bill Clinton. Not that this Administration has acted disgracefully repeatedly, acted in ways I find impossible to understand and astonishing to realize; no, the problem is Bill Clinton. Really, I think it was probably John Kennedy or Franklin Roosevelt....

[The Confidence Man]

I'm with cranky observer: they've been using unauthorized wiretaps to spy on their domestic political rivals (including Kerry, the non-FOX press, and moderate GOPers).

I don't understand the various blogospheric juping-through-hoops to scry what Bush "meant" in his various statements, and what the actual necessities of this "program" might be.

Think about it: every chance the Bushists have had, they've prioritized "positive polarization" over actually, y'know, defending this country. And every single one of the admin's supposed captures/prosecutions/renditions of evildoers has proved to be a sham.

Occam's Razor sez they're using the illegal wiretaps on domestic political opposition.

[jon livesey]

"As to why they didn't create some oversight checks-and-balances--why they weren't worried about handing such powers to a future left-wing president--there are two possible answers: (a) They are really stupid. (b) They are really evil--they do not intend for there to be a left-wing president ever again."

Or c) they think, rightly or wrongly, that times are so tough, intelligence-wise, that they have to cut corners first and worry about the plebs re-electing Allende second.

After all, Lincoln suspended habeus corpus, even though he must have known that it could some day get to be a habit.

Yeah, I know... :-)

[Christopher ball]

The Fool, aptly named, should read Slocum' post and do some research. In 1994, Congress passed Pub. L. 103–359, title VIII, § 807(a)(3), Oct. 14, 1994, 108 Stat. 3444, which modified the 1978 FISA to allow warrantless physical searches. Clinton activated these additions via executive order 12949. It allowed for warrantless physical searches for up to a year provided "there is no substantial likelihood that the physical search will involve the premises, information, material, or property of a United States person." The phrase "US person" excludes illegal residents of the US, so we we're supposed to trust that warrantless physical searches were not conducted against US citizens or legal resident aliens. As in the current NSA case, intelligence committees were to be kept informed.

This current case involves international communications -- those warrantless physical searches under Clinton (how many? We don't know because reporting requirements don't apply) were conducted within the US. But the Bush policy is just plain bizarre unless one sees it as an attempt to expand the scope of executive authority by precedent in time of emergency.

The real question is: what were the Democrats in the Congressional leadership and the intel committees doing with this information? Were they duped?

On the FISA amendments see, http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001822----000-.html

[dk]

sic semper tyrannis

[Christopher ball]

It's worse than I thought.

FISA 1978 also authorized year-long warrantless electronic surveillance. Carter activated it via Exec. Order 12139. Volokh Conspiracy has a good discussion of it:

http://www.volokh.com/posts/1135029722.shtml

Note in Volokh that FISA excludes terrorist organization and other non-state actors from the year-long no-warrant provision.

This still puts Bush in the hot seat.

[christo]

Billmon, you there, why aren't you putting up more material on the billmon.org? Don't worry about the moonies.

As to the spying, the Bush Administration hasn't gotten anything right starting with their failure to connect the dots on the 9/11 attacks. If they're spying on a massive scale of course it devolved into spying on domestic Constitution loving opposition.

On a related note firedoglake has a wonderful post on calling out the name brand democrats who regularly pucker up for Bush, Biden, Lieberman and whoever else.

[JR]

"b.) They are really evil--they do not intend for there to be a left-wing president ever again."

Well of course that's what they intend - they say so openly -although "left-wing" has nothing to do with it. They intend at the very least to make the US into a one-party state along the lines of Mexico under the PRI - a network of government, the military, big business, and organized crime held together in a tight web of corruption. Tom DeLay said so: "We are a permanent majority." Why won't you take them at their word?

[liberal]

jon livesey wrote, "After all, Lincoln suspended habeus corpus, even though he must have known that it could some day get to be a habit."

But as Mark Kleiman once pointed out on his blog, Lincoln really did see a genuine threat to the constitutional order (URL http://www.markarkleiman.com/archives/_/2003/03/_this_isnt_world_war.php ):

"Justice Jackson, like Lincoln before him, was thinking about a situation in which upholding the letter of our Constitutional liberties might lead to a complete collapse of the Constitutional order. Lincoln's defense of his suspension of habeas corpus in the face of serious Copperhead subversion, supporting an active rebellion whose troops threatened the capital city...That is not our current situation. Al-Qaeda and the terrorist groups it typifies represent absolutely no threat to the continuity of our government, our way of life, or our Constitution, except through their capacity to empower those who for other reasons are enemies of liberty and friends of tyranny and who might use the al-Qaeda attacks, as they previously used Communism, as a convenient excuse for shredding the Bill of Rights. That the Chief Justice and the Attorney General both seem rather inclined to favor the tyrannical side side is not an encouraging fact, but even so there is no actual threat to basic liberty or Constitutional government, and will not be even if the terrorist problem gets worse."

[liberal]

JR wrote, "They intend at the very least to make the US into a one-party state along the lines of Mexico under the PRI - a network of government, the military, big business, and organized crime held together in a tight web of corruption. Tom DeLay said so: 'We are a permanent majority.' Why won't you take them at their word?"

Good point. It's clearly the path intended by Karl Rove.

[Doctor Memory]

'As you know Bob': Sheesh. Yes, the 9/11/01 NYC primary was cancelled. DOWNTOWN MANHATTAN WAS UNDER LOCKDOWN. Rescheduling an election when a fifth of your potential voters (and, for that matter, poll workers) are unable to get to their polling places (in some cases due to those polling places being either GONE or covered in ash) is not a nefarious plot against democracy, it's simple common sense. The primary was quickly rescheduled for a few weeks later, and went off without a hitch.

[Neil']

Why do Bushills think they can get away with the Commander in Chief diversion? All the COTUS implies is that the President is supreme leader of the armed forces and militia (i.e., National Guard.)

[melchior]

What's wrong with A and B?

[Arun Khanna]

I suggest a plausible reason for the Bush administration not going the FISA route. The administration might have been trying to establish precedent for surveillance of terrorist suspects inside and outside the U.S. seemlessly by NSA. The 9/11 commission wanted an intelligence czar so that the inter-departmental silos between FBI, CIA, NSA... did not get in the way. To me the issue comes down to who exactly are under surveillance, if they are plausible Al Qaeda suspects then fine, if it is a broader surveillance program then it is a worrisome development.

[kharris]

Brad,

Please don't say "still small voice" unless you are talking about personal religious experience. I don't want to limit your speach, but to caution against giving hypocracy in Congress an easier time. "Still small voice" has been put to awfully hypocritical use in Congress, a form of coded speech implying - to a particular constituency - that God wants a Congressman to vote a certain way. When the rest of us use the expression for any other than its original meaning, it makes this hypocracy easier to camoflage.

[J Thomas]

"Well, another possibility is that they are surveiling their political opponents. And/or journalists; this could explain why the WaPo is so reluctant to print anything not pre-approved by the White House."

Yes. Individual editors, managers, and owners getting blackmailed for peccadillos that have nothing to do with national security except for being blackmail material.

"I can't report on extra-judicial surveillance because it would be prejudicial to my marriage, my job, and my credit standing. I haven't actually discussed it with my wife but my boss says he'd definitely fire me if I tried, he's in the same boat."