Tuesday, May 16, 2006

Never Heard of the Foreign Intelligence Surveillance Court? Join The Club.

Did you know that within the US government there's a highly secretive Foreign Intelligence Surveillance Court that has to be briefed about the kinds of programs the NSA performs? Did you know that according to Orin Hatch, members of this court have known about the NSA programs since 2001 and have not objected?

Katherine Shrader notes in an AP piece today that "the surveillance court, whose 11 members are chosen by the chief justice of the United States, was set up after Congress rewrote key laws in 1978 that govern intelligence collection inside the U.S." You caught that whole "intelligence collection inside the U.S." bit, right?

Whether the programs are right or wrong is another matter, but it is increasingly appearing that they are, in fact, legal. Read Shrader's story here.

Remember what I said about there being higher levels of legality than the average American is familiar with and there being secretive, legal means to conduct operations at highly classified levels? All the while Bush is insisting that calls are not being listened to without warrants. You may choose not to believe him, but he's teflon on this. The administration is masterfully diffusing the situation as if they actually want Hayden to get the nod.

The US Today story was clearly meant to hurt the president, but he might emerge from this whole situation slightly stronger for it. With the whole thing on a fast-track to becoming a non-issue, watch for even Sen. Specter to conclude that no laws were broken. It reminds me of the Senate scene from Godfather II, lawmakers scrambling to figure out whose putting what over on whom and knowing they've been had. This time, though, the Don and his capos are guilty only of wagging the congressional dog.


Anonymous Jon said...

Briefed? How much? Fully? Also, briefing them on a program does not give the judges the right to ignore the law. FISA states very clearly what procedures are to be followed. Judges are to enforce them. They cannot simply ignore it. FISA states that it is not to apply to any U.S. citizen(I think. also slight exception). Warrantless surveillance is permitted but a warrant is needed within 3 days.50 U.S.C. sec. 1805(f) Following the start of a 15 days is allowed. 50 U.S.C. 1811. Much more is provided for.

6:06 PM  
Anonymous Jon said...

15 days following the start of a war. Yes, I just wrote a paper on this.

6:07 PM  
Anonymous a.s. said...

Interesting. So the government can do surveillance without a warrant for 3 days (or 15 in war time) before getting a warrant. It's conceivable, then, that surveillence was happening 'without' warrants for 3 to 15 days and warrants were then granted, which might explain why some are saying warrantless searches were done and Bush saying all searches have warrants. Has the 3/15 day rule been on the book since 1978? I would have thought it would have raised some ire previously, though it was probably only used sporadically and without being driven by today's powerful technology.

We don't know how fully the FIS judges were informed...I expect that to all unfold in next 10 days. The Administration needs this to be a dead issue by Memorial Day (July 4 at the latest) to clear the way for mid-terms in November.

6:23 PM  
Anonymous Jon said...

It is only the first 15 days after a war starts. They don't have 15 days during a war. I'n not sure if it has always been like that. It may have.
The problem is that FISA can't apply to U.S. citizens unless certain conditions are met. From a website "FISC judge must find probable cause that one of four conditions has been met:

(1) the target knowingly engages in clandestine intelligence activities on behalf of a foreign power which "may involve" a criminal law violation;

(2) the target knowingly engages in other secret intelligence activities on behalf of a foreign power under the direction of an intelligence network and his activities involve or are about to involve criminal violations;

(3) the target knowingly engages in sabotage or international terrorism or is preparing for such activities; or

(4) the target knowingly aids or abets another who acts in one of the above ways."

I'm not sure the NSA is the best to make that determination. Also, it seems likely that everyone listened to wasn't involved with foreign powers.
From CNN: Hayden would not address in open session Republican Sen. Orrin Hatch's question of whether Americans with no terrorist affiliation had been targeted. He said only that logic would dictate that "sometimes you may not be right." I interpret that statement to mean Americans uninvolved with foreign powers have been wiretapped without warrants. That is a violation of FISA. It is illegal and those that authorized it should be punished.

9:42 PM  

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