Wednesday, December 28, 2005

So THAT'S Why Bush Bypassed FISA

Looks like the reason Pres. Bush decided to authorize secret NSA wiretaps on Americans without getting warrants from the Foreign Intelligence Surveillance Court had nothing to do with the need to move fast. An AP article today reports that Bush actually was going through FISA until the court began rejecting more and more of his requests for wiretaps.

Government records show that the administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court's approval.

A review of Justice Department reports to Congress shows that the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than from the four previous presidential administrations combined.

The court's repeated intervention in Bush administration wiretap requests may explain why the president decided to bypass the court nearly four years ago to launch secret National Security Agency spying on hundreds and possibly thousands of Americans and foreigners inside the United States, according to James Bamford, an acknowledged authority on the supersecret NSA, which intercepts telephone calls, e-mails, faxes and Internet communications.

Naturally, Bush supporters think this shows dangerous obstructionism on the part of the court:

If the FISA court was being dangerously obstructionist in the Administration's view, then the President would appear to not just have a right, but a Constitutional responsibility to go around the court if he felt American lives were at risk. To act otherwise would be criminal negligence, would it not?

Why? Because the president's "views" are more valid and important than the legal standards set by the Foreign Intelligence Surveillance Act for the issuance of warrants?

The 1978 Foreign Intelligence Surveillance Act, adopted by Congress in the wake of President Nixon's misuse of the NSA and the CIA before his resignation over Watergate, sets a high standard for court-approved wiretaps on Americans and resident aliens inside the United States.

To win a court-approved wiretap, the government must show "probable cause" that the target of the surveillance is a member of a foreign terrorist organization or foreign power and is engaged in activities that "may" involve a violation of criminal law.

Faced with that standard, Bamford said, the Bush administration had difficulty obtaining FISA court-approved wiretaps on dozens of people within the United States who were communicating with targeted al-Qaida suspects inside the United States.

So maybe those requests should not have been approved. Maybe the Foreign Intelligence Surveillance court was simply following the law as established by the statute that created the court.

The current occupant of the White House, however, does not feel constrained by any such scruples. Bush wanted those eavesdropping warrants, probable cause or not; the court was refusing to grant them; so Bush just decided to bypass the court and authorize the spying himself.

And to those who think that's just fine, I say: You don't deserve your freedom. But the rest of us do.

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