Wednesday, January 17, 2007

Alberto Gonzales Says Bush Administration Will Submit Surveillance Requests to FISA

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In the mysterious about-face department:

The Bush administration has agreed to shift course and let a secret but independent panel of federal judges oversee the government's controversial domestic spying program.

The Foreign Intelligence Surveillance Court will have final say in approving wiretaps on communications involving people with suspected terror links, Attorney General Alberto Gonzales said Wednesday in a letter to the leaders of the Senate Judiciary Committee.

What's the catch?

Conservative and liberal bloggers are both saying the Democratic takeover of Congress might have something to do with this development.

Alberto Gonzales is claiming that the DOJ has been trying to find a way to do electronic surveillance within the court system all along, but it just "took a while":

Gonzales also said that the administration has been exploring ways to seek approval from the surveillance court for nearly two years, but that "it took considerable time and work to develop" an approach that "would have the speed and agility necessary to protect the nation from al-Qaeda."

Gonzales and other administration officials had previously claimed that the surveillance court was too slow and clumsy to be of any use in administering the NSA spying program. Justice officials also released statistics today showing improvements in the amount of time it takes to obtain warrants from the surveillance court.

Presidential press spokesman Tony Snow insisted to reporters that the move was neither politically motivated, in response to any criticism or tied to any court action.

"No, no, no, no, no. No. No.," Snow said when asked if it was tied to federal court action. "As a matter of fact, it may be interesting to to see how it plays out in federal courts, but no, this is not a response . . . this has been going on for two years."

Glenn Greenwald is skeptical:

(1) Why couldn't the new rules simply have been instituted years ago, as part of a newly amended FISA (which the administration requested and obtained from Congress in 2001 and which Congress repeatedly asked to do multiple times both prior and subsequent to revelation of the President's lawbreaking)?

(2) If, as Attorney General Gonzales claims, they were seeking to develop new rules as early as the Spring of 2005 to enable eavesdropping under FISA, why didn't they say so when the controversy arose over their lawbreaking?

(3) For those who claimed that our national security was jeopardized and that The Terrorists were given our state secrets when The New York Times revealed that the President was eavesdropping without warrants, didn't Alberto Gonazles just "give the terrorists our playbook" by telling them how we are eavesdropping, i.e., that we are doing so with warrants?

Marty Lederman intuits from Gonzales's language in the first paragraph of his letter that the Bush administration has worked out a way for the FISA court to give blanket approval to all government requests for surveillance:

... [T]his volte-face apparently is the result of the fact that DOJ has convinced a FISA judge to issue "innovative and complex" orders in one precedential case already. So says a new letter from the AG to Senators Leahy and Specter.

According to the letter, the FISA court seems to have approved orders finding that at least part of the FISA statutory standard was [would be?] satisfied -- that "one of the communicants is a member or agent of Al Qaeda or an associated terrorist organization." (That's not quite the statutory standard, which requires that the target of the intercept be such an agent, and also that "each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.") It apparently took "considerable time and work" for DOJ to persuade the FISA judge to go along with whatever this newfangled sort of approval is. (According to Tony Snow, the FISA Court has promulgated "guidelines" and "rules" to govern this new form of approval.)

Still, Marty is cautiously optimistic:

Without knowing anything more about it, my sense is that this is probably a beneficial development, whatever its impetus might have been. I find it very difficult to imagine that the FISA court would roll over and approve an "innovative" legal theory if it were dubious -- especially not in this context, where DOJ has many incentives to get the FISA court on-board and where the congressional and public spotlight is shining so brightly. Without the New York Times, and Judge Taylor, and the 2006 election, this would never have happened. Sunshine is the best disinfectant, and all . . . . Even though the public might never find out exactly what's up here, presumably Congress and the FISA court are now acting as some not-insignificant checks. And if so -- if the extreme and unilateral positions of the Executive are a thing of the past here, the system has worked.

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