Ruminations on the FISA Court and the Bush Administration’s “Terrorist Surveillance Program”

[This post is sheer speculation; I may be way off. Read accordingly.] Longtime readers will recall the dispute in 2005-2006 over the legality of the Bush Administration’s warrantless wiretapping program, aka the “Terrorist Surveillance Program,” which was revealed in December 2005 by the New York Times. Recall that several DOJ officials threatened to resign over the program as unlawful in 2004, but then changes to the program were made to satisfy them that the program was lawful. As best I can recall — it has been a few years — the leading theory for what changes were made to make the program legal was that program was changed to be based on the AUMF instead of the President’s Article II power. I thought of that dispute when I read this passage in today’s Post story on PRISM:

Between 2004 and 2007, Bush administration lawyers persuaded federal FISA judges to issue surveillance orders in a fundamentally new form. Until then the government had to show probable cause that a particular “target” and “facility” were both connected to terrorism or espionage.

In four new orders, which remain classified, the court defined massive data sets as “facilities” and agreed to certify periodically that the government had reasonable procedures in place to minimize collection of “U.S. persons” data without a warrant.

I’m probably way off on this, but I wonder: Is that what changed and allowed the TSP to continue? The timing would be right, as the changes from Goldsmith/Comey et. al. started in 2004 and the Protect America Act came around to formally approve the TSP program (at least in some form) in 2007. And recall yesterday’s post on the NSA call records program, and in particular the legal ambiguity that led to FISA court orders allowing it:

Section 1861 says that the “things” that are collected must be relevant to a national security investigation or threat assessment, but it says nothing about the scope of the things obtained. When dealing with a physical object, we naturally treat relevance on an object-by-object basis. Sets of records are different. If Verizon has a database containing records of billions of phone calls made by millions of customers, is that database a single thing, millions of things, or billions of things? Is relevance measured by each record, each customer, or the relevance of the entire database as a whole? If the entire massive database has a single record that is relevant, does that make the entire database relevant, too? The statute doesn’t directly answer that, it seems to me. But certainly it’s surprising — and troubling — if the Section 1861 relevance standard is being interpreted at the database-by-database level.

Maybe I’m just misreading the two paragraphs from today’s Post story, but it sounds like there was a similarly broad reinterpretation of FISA in 2004. By reading a massive data set as a “facility,” the government could get FISA court orders allowing massive-scale surveillance from the 2004-07 period.

Did that authorize the TSP, at least formally? Maybe. Although maybe I’m way off. Think about it: If that authorized the TSP, it would mean that the Bush Administration’s TSP actually did have a warrant — it’s just that it was a single warrant for the entire program. It seems hard to believe that the Bush Administration wouldn’t have let on about that if there were such an order from the FISA court. But then the order was and still is classified, so I suppose it’s possible that they didn’t acknowledge the existence of the warrant even though it existed.

Anyway, just some uninformed speculation on my part. I’m curious what readers think.

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