Wednesday, December 28, 2005

Follow-up on Bush's Bypass of FISA court

Lis Riba points out that it's misleading to conclude that Pres. Bush's 2001 decision to order warrantless wiretaps was a response to a surge in the number of warrant applications rejected by the FISA court. Lis notes that most of those rejected applications occurred in 2003 and 2004, after Bush had already authorized the NSA to bypass the court.

Let's do the math:

Since 2001, the judges have modified 179 requests.
173 of these court-ordered modifications took place in 2003 and 2004.
That makes six (6) modifications in 2001 and 2002.
The administration began bypassing the Court shortly after 9/11, in late 2001.

The headline and first paragraph of the news story suggests challenges led to Bush's decision to eschew court approval, when in fact they were simultaneous developments.

Lis is right, of course; and as one of those who wrote that it appeared Bush decided to flout the law because the court was challenging him too much, I stand corrected.

But if Bush decided to bypass the FISA court before the court challenged him in any significant way, then what were those 173 court-ordered modifications that were issued in 2003 and 2004 about? A diarist at Daily Kos speculates that, as simple as the court's requirements for a warrant are, the Bush administration's applications failed to meet them:

Out of the 5,645 applications the Bush administration made to the FISA court, a record 179 were modified. Remarkably, 173 out of the 179 modifications took place in 2003 and 2004. What occurred in 2003 and 2004 that triggered the submission of inadequate applications to the FISA court?

You can find the requirements for a FISA application here. The requirements are straightforward. What defects existed in the applications that were so severe that the FISA court felt compelled to modify them? My suspicion is that the administration had trouble fulfilling the "foreign power" requirement. The application must state the facts relied upon that the target of the surveillance is indeed a "foreign power or agent of a foreign power" (read: terrorist). Was the administration casting its net too wide, stretching the limits of logic to classify individuals as "foreign agents" in order to conduct the surveillance?

We find a clue in this WaPo article from Dec. 22:

One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.

"For FISA, they had to put down a written justification for the wiretap," said the official. "They couldn't dream one up."

By the way, FISA doesn't even require the name of the target (See 1804(a)(3)). So, the administration didn't want to comply with FISA requirements; it didn't want to explain why the surveillance was necessary. Instead, it wanted broad, unrestrained power to spy on anyone, for any reason, even if that reason was not based in evidence. FISA makes such spying illegal, which is why Bush ignored the law and chose to spy by royal edict instead.

Bush was put on notice that his intended method of surveillance was not lawful. In response, like a petulant child, he stomped his feet and stubbornly insisted upon having it his way.

No comments: