Did A FISA Judge Approve the Entire TSP?
[IMPORTANT UPDATE: In light of the latest news, I no longer think this is happening. See my latest post above.] I'm not entirely sure I know what to make of Attorney General Gonzales's letter today about the NSA surveillance program, but I wonder if I'm quirky in reading it possibly to mean that DOJ found a judge who was willing to approve the entire TSP program under FISA. Here's what the letter says:
The Washington Post adds:
Of course, whether this is true depends on whether the Administration obtained some kind of blanket order or plans to get orders on a case-by-case basis. And it's unclear when or if we'll know which occurred.
UPDATE: Some readers suggest that the language that "the Terrorist Surveillance Program will now be conducted subject to the approval of the [FISC]" suggests that there will be case-by-case approval. I don't think that's right. FISA orders do not run indefinitely: FISA orders can be good for up to one year, and must be reapproved after a year. As a a result, the statement that the program will now be "subject to approval" by the FISA Court might just mean that in one year DOJ will go back to the same judge and get him to issue the order again.
a judge of the Foreign Intelligence Surveillance court issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization. As a result of these orders, any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the [FISC].The letter also says that as a result of this development, the President no longer needs to and will not reauthorize the Terrorist Surveillance Program.
The Washington Post adds:
In a background briefing with reporters, Justice officials declined to provide details about how the new program will work — including whether the surveillance court has issued a blanket order covering all similar cases or whether it will issue individual orders on a case-by-case basis. Authorities also refused to say how many court orders are involved.If this does involve a blanket order approving the entire program, it would seem to be a very clever move by DOJ. It would achieve four things, as I see it. First, it would make the TSP program very difficult to challenge. I gather no one would have standing to appeal the FISC order to the FISA Court of Review; even if the FISC order is unlawful, it's unclear as a procedural matter how it could be challenged. Second, it might moot the pending NSA litigation, or at least render any opinion in that case of very limited consequence. Third, it puts the Administration in the position of having obtained a court order, so that even if the order is unlawful it's "the judge's decision" rather than the Executive's. And fourth, it might help persuade the press to focus elsewhere; the press would be sure to present this as a concession to the Administration's critics (as the N.Y. Times did today), and the press is likely to be much less interested after they think the Administration has backed down.
The officials said the new approach will offer the same benefits of the NSA program, along with the advantage of judicial oversight.
"There is no compromise to national security," one of the Justice officials said. "The objectives of the program haven't changed, and the capabilities of the intelligence agency to operate such a program haven't changed as a result of these orders."
Of course, whether this is true depends on whether the Administration obtained some kind of blanket order or plans to get orders on a case-by-case basis. And it's unclear when or if we'll know which occurred.
UPDATE: Some readers suggest that the language that "the Terrorist Surveillance Program will now be conducted subject to the approval of the [FISC]" suggests that there will be case-by-case approval. I don't think that's right. FISA orders do not run indefinitely: FISA orders can be good for up to one year, and must be reapproved after a year. As a a result, the statement that the program will now be "subject to approval" by the FISA Court might just mean that in one year DOJ will go back to the same judge and get him to issue the order again.
The FISC could have approved continued surveillance on the entire list or a subset that was still of interest.
I'm not a FISA Court of Review wonk, but their name does imply that they'll review decisions of a FISC. How does one appeal a FISC decision or otherwise have it reviewed? Does the FISA Ct. of Rev. have original jurisdiction? Mandamus jurisdiction? What about the SCOTUS?
This provides them legal and political cover, and will only slightly slow the process.
;))
Says the "Dog"
I think it's becoming more and more obvious why Harriet Miers was nominated. What mattered (and matters) most to the White House was having a 100% rock-solid vote to uphold the Administration's methods for waging the GWOT. Casey? Roe? Irrelevant. Hamdan? Important. The NSA cases? Critical! Time to make 'em moot, or risk disaster.
What is amusing is that some righty blogs like The Corner are engaged in apoplectic rants that Mr. Bush has given away the store on surveillance when, in fact, he may have out foxed his political opponents...again.
@Bart: not really, for the main argument was that it the program was, what Bush said it was, it could be done within Fisa. Breaking the law was pointless all along.
At the time the TSP was implemented, it appears that the FISC was not going to provide warrants for the surveillance. Indeed, I do not see how they could based on the reported parameters of the TSP and the statutory probable cause language.
Based on their testimony before the Specter Committee, the FISC judges simultaneously thought that FISA review was a good idea and that the President had the authority to perform the surveillance without such review.
Therefore, it is not at all surprising to find that the FISC agreed to a far more expansive interpretation of the FISA statutory probable cause requirements in order to deal themselves back into the program to provide oversight.
...As General Hayden correctly indicated, the Terrorist Surveillance Program is not a “data-mining” program. He stated that the Terrorist Surveillance Program is not a “drift net out there where we’re soaking up everyone’s communications”; rather, under the Terrorist Surveillance Program, NSA targets for interception “very specific [international] communications” for which, in NSA’s professional judgment, there is probable cause to believe that one of the parties to the communication is a member or agent of al Qaeda or an affiliated terrorist group people “who want to kill Americans.”
See Remarks by General Michael V. Hayden to the National Press Club, ...
Hard to imagine why a blanket order would be either neccesary or sufficient if the TSP is as narrowly targeted (very specific) as Gen. Hayden and the DOJ represent the program to be.
(BTW, I do not think the administration has ever used the word "agents" -- a FISA term of art, with a rigorous statutory definition -- as a core requirement of its publicly stated parameters for the TSP. Those parameters are looser.)
I suppose some individual FISC judge might go way off the reservation and invent such an order covering essentially the entire TSP. If so, there is no visible mechanism for review. But could someone explain how the reasoning could fit within the plain language of FISA?
Recall that in the original consideration of FISA in the 1970s, Atty. Gen. Levi proposed such generalized warrants as part of the legislation, but his view did not prevail. And about a year ago, the rationale for Sen. Specter's first bill to address this controversy was to provide new authority for such general warrants, but that view was not adopted by Congress, either.
It may be that the new FISC precedent does allow incrementally more latitude or flexibility in the warrant requirements making it easier for DOJ to obtain individual FISA warrants. Perhaps there is precedent that pushes the envelope of probable cause. Or it may simply be that the administration is retreating and putting a good face on the event.
BTW, Gonzales is appearing before Senate Judiciary tomorrow. He probably will refuse to explain these details, but it will be interesting to watch. The other indicator to watch will be that of the new Democratic committee chairmen -- including Leahy, who has been promised a "classified" about this development.
FISA was not stand-alone legislation. It must be interpreted in light of the complete context, which includes historic precedents (such as the excemption of international mail from warrant requirements, which was only later justified as based on the absence of an expectation of privacy), constitutional separation of powers issues and even foreign treaties and executive agreements. Thinly slicing salami proves only that you have a sharp knife.
At this point we just don't know what the deal was, or even for sure if there was one. It just looks mighty like some sort of deal, as Bart suggested.
Since he is a man given to verbal misdirection, and it is obvious why it is to his political advantage to have us infer that conclusion that from his language, I am suspicious of it.
A more credible theory is that the administration retreated in the face of continued adverse actions in the courts, and is spinning to its political advantage.
BTW, I seen that DOJ uses the same closely guarded language in its letter to the 6th Circuit notifying the court of this development. (h/t Marty Lederman at Balkinization)
That's my suspicion too - that Gonzales' statement is spin to disguise the Bush administration's usual pusillanimity from the GOP base. We'll find out, but IMO it is premature to make any conclusions at this point.
Under the regulations that established FISC,
1. who is responsible for determining probable cause?
2. what leeway do the judges have in modifying the length and type of surveillance?
At the moment, there seems to be a mystery and possible controversy over how the court has interpreted the FISA statute in secret.
In the immediate case, members of the Intelligence and Judiciary committees will probably lean on executive-branch officials to explain these details. Perhaps they will get answers; perhaps not.
What oversight, if any, is properly exercised over the FISA-created courts themselves? Is there historical precedent for Congress or its committees asking these courts to disclose their actions, or to provide documentary material such as the relevant court orders?
If not, how could Congress learn whether the FISA statute and the courts it creates are functioning according to congressional intent, or whether FISA should be amended?
Prior to FISA, the court of appeals in United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), held that evidence gathered under warrantless surveillance primarily for intelligence gathering could be admitted as evidence in a criminal prosecution of the target. However, once Justice got involved in the surveillance, the court considered the primary purpose of the surveillance to be for criminal prosecution and the surveillance then required a warrant to be admissible as evidence.
If the entire TSP falls under a blanket FISA warrant, then Justice can be involved and the resulting evidence is arguably admissible under the Truong standard.
Is
that the probable cause standard of FISA?
JAO, are you seriously asking congress to threaten the independence of the judiciary. Wasn't the *independent* judiciary being involved or not being involved your big bug a boo over the past year?? Now they are going to be involved and suddenly you want congress to threaten the judiciary's independence?? ;)
Says the "Dog"
I am posing a difficult question, not propounding an answer.
I do not think it is proper for Congress to summon judges to explain their decisions, but I think Congress has a legitimate interest in being informed about how statutes are being applied. The core of that interest is in considering the desirability of the legislation, and its possible amendment, not in judging the judges.
The situation of the secret courts created by FISA creates special problems. Ordinary statutes, applied by ordinary courts in ways that are ordinarily transparent, can be assessed openly. Court orders typically are on the record. If Congress sees that its intent is frustrated by judicial interpretation, or if it changes its collective mind, it can amend the statute in question or even redefine the jurisdiction of the court.
The question I am posing is particular to this form of secret law. The inherent danger posed by the secrecy is exacerbated by the structure of the FISA courts, which makes some decisions of a single judge effectively unreviewable. Perhaps the FISA statute, which includes some macro reporting requirements, should provide for routine informative disclosure to key committees about the substance of the court decisions.
Why that's just right wing reactionary talk!!!!!!! (vbg)
I'm glad to see you are moving to the "right" side of things in your thinking. Can the New York Times be far behind??
Says the "Dog"
Only one thing can be surmised — the Bush administration is desparate to prevent inquiry into the former program, and wants to pretend that it has changed. Whether or not that has actually happened, and what exactly has happened, is deliberately left unclear by Gonzalez.
The most pertinent question is what can be inferred from the obfuscation employed by Gonzalez. I would argue that very little has changed, other than the adoption of something with a FISA judge that provides a fig leaf for some form of operation. There is no reason to believe that any real change has been made, nor any real change in position.
For example, there could now be two programs. A new program similar to the old program with a new name and a few changes and still conducted without FISA oversight, and another new program as described in Gonzalez letter. Every aspect of Gonzalez letter would still be true. People are inferring that the Administration is shutting down its former practices even though there is nothing in the letter conceding such or conceding that the Administration does not have the power to contiue the same practices.
When someone with a history of duplicity and lack of candor is deliberately vague, assume the worst.
If the President feels such is necessary to protect this country I certainly hope you are correct. It would be criminal in such a circumstance for him to do anything else.
Says the "Dog"