Bush Agrees to Put NSA Warrantless Surveillance Under FISA

By Jeralyn, Section War on Terror
Posted on Wed Jan 17, 2007 at 07:08:00 PM EST
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The Justice Department today disclosed that the NSA warrantless surveillance will be discontinued in its present form and in the future operate under the FISA court.

The Justice Department announced today that the National Security Agency's controversial warrantless surveillance program has been placed under the authority of a secret surveillance court, marking an abrupt change in approach by the Bush administration after more than a year of heated debate.

Bottom line:

"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 Foreign Intelligence Surveillance Court," Gonzales wrote.

Sen. Patrick Leahy wants to know more:

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.

...."The issue has never been whether to monitor suspected terrorists but doing it legally and with proper checks and balances to prevent abuses," Leahy said in a statement. "Providing efficient but meaningful court review is a major step toward addressing those concerns."

Once again the Bush Administration has acted on its own without consulting Congress.

Hopefully, the new plan will involve more than just mere rubberstamping by FISA judges. But if Gonazales is happy with it, I'm not optimistic that will be the case.

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Bush Agrees to Put NSA Warrantless Surveillance Under FISA | 17 comments (17 topical)

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Depressing (5.00 / 1) (#3)
by Repack Rider on Wed Jan 17, 2007 at 04:42:07 PM EST

It is amazing to me that a presidential decision to OBEY THE LAW is newsworthy.

Isn't that supposed to be the default mode?

Preznit Boy-who-cried-wolf (5.00 / 1) (#6)
by scribe on Wed Jan 17, 2007 at 04:49:55 PM EST

is not worthy of belief.

Frankly, this day-before-the-hearing crap is just like the drunken frat boy doing his term paper from The House Files in the last few minutes remaining on his extension. A disgusting mess.

It's clear that the threat of oversight managed to get some "movement" - real or illusory - from the Admin. Which means, then, that (a) they're weak and everyone knows it and, more importantly, (b) More Oversight and more threat of oversight is just the thing to get More movement out of them.

It's a momentum thing, y'know. "Big Mo", I think Poppy called it.

Oh, yeah. This "I won't answer that question" response is not a cognizable response. Were I a Senator, my response to such an answer would be along the lines of "Attorney General Gonzales, would you tolerate 'I won't answer that question' from a PW at Gitmo or some other military brig? No? Neither will I; now answer the f'g question."

: That response is perfect (none / 0) (#7)
by aw on Wed Jan 17, 2007 at 05:22:31 PM EST

Now if only they would use it.

FISA and rubber stamps (5.00 / 2) (#8)
by Peter G on Wed Jan 17, 2007 at 05:29:19 PM EST

The great irony in the NSA wiretapping scandal has always been that it makes reliance on the Foreign Intelligence Surveillance Court the civil libertarian position. That court has always functioned as a rubber stamp. The one time in its history that the judges wrote an opinion disapproving a Justice Dept. wiretap application -- based on discovering that FBI agents had been lying to the court in their warrant applications in numerous cases -- the order was then overruled by the equally-secret FIS Court of Appeals (which otherwise had never in its 25-year history had a case appealed to it). The FIS Court, for all that appears (bearing in mind that most of what you might want to know on this subject is secret), is and always has been nothing but a giant rubber stamp.

There is, I hope, (none / 0) (#9)
by Edger on Wed Jan 17, 2007 at 05:38:55 PM EST

at least a semblance of judicial inquiry into the necessity for a wiretap and the justifications offered, isn't there Peter?


And (none / 0) (#10)
by Edger on Wed Jan 17, 2007 at 05:44:18 PM EST

is there a record of FISA approvals (and their details, targets, etc.) that Congress has access to?


A semblance is better ... (5.00 / 1) (#11)
by Peter G on Wed Jan 17, 2007 at 06:01:26 PM EST

than nothing, I agree, Edger. I know a few of the judges who have served on the FIS court, and believe that they would have taken their duties seriously. And yes, the pertinent Congressional committees, or at least their leadership, do have access to the FIS Court's records.
I should have mentioned also, that this particular back-track (or appearance of back-track, or "back-flip," as the ACLU is calling it) is part of a pattern of Justice Dept. action taken on the eve of scheduled appeals court (and Supreme Court) reviews of challenged GWOT programs, designed to make pending lawsuits moot (or seem moot). Examples: Moussaoui, Padilla, Hamdan. Not only was/is AG Gonzalez set to testify on the subject of NSA wiretapping tomorrow in Congress, but the appellate argument in the Sixth Circuit, arising out of the decision in Detroit holding the program unconstitutional, is also scheduled to be held in two weeks.


: Thank you, Peter... (none / 0) (#13)
by Edger on Wed Jan 17, 2007 at 06:41:30 PM EST

I suppose it is better than having no records at all of even the fact of a tap, much less the subjects targeted. It should, I hope, help to somewhat deter spying domestically on citizens, though I have little confidence that they won't do it when they want to in a circumstance where they want there to be no record.
And I hope the Democrats won't be fooled into trading something for nothing here because of a deceitful "back-flip". Squeaky's comment re signing statements is a legitimate concern too, I think.
Thanks for your expansion and contextualizing.

Sad But True (none / 0) (#15)
by The Heretik on Wed Jan 17, 2007 at 07:42:30 PM EST

FISA has been a rubberstamp in the past. Probably will be in the future too. Secret courts are not completely desirable in an open society, but at least it was formed by law. And then reformed by the Patriot Act. In a panic.
What has been troubling with the NSA and FISA is that even a secret court was not sufficient for an executive branch that trusts no one to know better than itself.


: Redefinitions again... (none / 0) (#16)
by Edger on Wed Jan 17, 2007 at 08:28:32 PM EST

With closer reading of the WAPO article, it seems there is more than meets the eye going on here. It appears from the little information Justice is willing to reveal about the "new rules" that, rather than the program being limited to meet FISA standards (which as Peter explains have been virtually nothing more than rubberstamping), the FISA Court procedures have simply been weakened further to fit what NSA has been doing under Bush's authorization all along.
[Justice] 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."
There is nothing I can find on the web detailing the "new rules" Tony Snow mentions in an AP article here, and WAPO also mentions that:
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.
I hope Peter G is right that at the very least "the pertinent Congressional committees, or at least their leadership, do have access to the FIS Court's records", since I can see no other improvement here, if indeed that is even a change. Perhaps more information will be available as the Judiciary Committee examines this. Leahy does not appear very satisfied so far...
More smoke and mirrors?

Cooperartion? (5.00 / 1) (#12)
by squeaky on Wed Jan 17, 2007 at 06:15:42 PM EST

Anyone see the signing statements yet?

A Dodge? (none / 0) (#1)
by libdevil on Wed Jan 17, 2007 at 04:34:51 PM EST

Is this just a dodge for our esteemed AG when he has to testify in front of Congress? "I'm sorry, Senator, but your question is moot since we've now claimed to be obeying the FIS Act. I won't answer questions about hypotheticals."

My first thought when I heard about this (none / 0) (#2)
by Edger on Wed Jan 17, 2007 at 04:41:24 PM EST

was, hey great - maybe there is some progress being made by all the unrelenting opposition to the wiretapping.

Hopefully, the new plan will involve more than just mere rubberstamping by FISA judges.

But I have to admit that my second thought was: Wait a minute here, why is Gonzales doing this, especially in a letter to the Judiciary Committee the day before he appears before them over other concerns about oversight circumvention (US Attorneys)?

And my third thought was: Get the ones they know will be approved rubberstamped, and continue to wiretap without FISA approval others anyway.

How would anyone know? These people have waved smoke and mirrors and deception in front of the worlds eyes for so long now it must be second nature and ingrained habit for them. I don't trust them for a second. Especially Gonzales. I think he'll do anything to please his boss.

I hope it's real...

A FISA rubber stamp.... (none / 0) (#4)
by kdog on Wed Jan 17, 2007 at 04:47:12 PM EST

is better than no oversight at all, I guess.

In my perfect country, the FISA court would be replaced by a civilian review board of average joes and janes.

The more power you have, the more freedom becomes a nuisance instead of a blessing.

: This (none / 0) (#5)
by Edger on Wed Jan 17, 2007 at 04:49:55 PM EST

civilian review board of average joes and janes
is pretty subversive thinking you know, kdog. They read blogs, I'm told. ;-)

NSA (none / 0) (#14)
by Fredo on Wed Jan 17, 2007 at 06:55:34 PM EST

Those who are paying close attention will observe that there is no reason to believe that anything about the program has changed at all. And that's an extremely good thing.

Frazed (none / 0) (#20)
by GhostDog on Thu Jan 18, 2007 at 08:54:43 AM EST

Sometimes a mistyped word is so beautiful it's a shame to correct it. "Frazed" is a keeper, I think.

With kind regards,
Dog, etc.
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