On January 19, 2006, the U.S. Department of Justice published a document entitled, “Legal Authorities Supporting the Activities of the National Security Agency Described by the President,” which will be referred to in this post as “the Analysis.” The Analysis refers to activities described by the President in a press conference, citing the President’s press conference on December 19, 2005. In that press conference, the President said that shortly after the attacks of September 11, 2001, his administration had to answer the following question:
[U]sing the authorities I have, how do we effectively detect enemies hiding in our midst and prevent them from striking us again? We know that a two-minute phone conversation between somebody linked to al Qaeda here and an operative overseas could lead directly to the loss of thousands of lives. To save American lives, we must be able to act fast and to detect these conversations so we can prevent new attacks.
The answer, he said, was that, “consistent with the law and the Constitution, [he] authorized the interception of international communications of people with known links to al Qaeda and related terrorist organizations.”
At the December 19, 2005, press conference, the President was asked why he did not use the process authorized by the Foreign Intelligence Surveillance Act [“FISA”] to intercept such communications. His answer was that he still uses FISA, but that
the people responsible for helping us protect and defend came forth with the current program, because it enables us to move faster and quicker. And that's important. We've got to be fast on our feet, quick to detect and prevent.
We use FISA still . . . of course, we use FISAs. But FISA is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect.
Attorney General Albert Gonzales, and Gen. Michael V. Hayden, who from March 1999 to April 2005 was head of the National Security Agency, the agency that did the warrantless wiretapping, also gave a press conference on December 19, 2005, which is referred to in the Analysis. During his prepared remarks, the Attorney General said that FISA “requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress.”
Before one ever gets into the legal technicalities of the Analysis of January 19, 2006, and the press conferences of December 19, 2005, there are a few points to remember.
First, the public would not have known about the warrantless wiretap program if someone had not leaked it to the New York Times.
Second, disclosures regarding the program to date have told al Qaeda and affiliated organizations nothing that they did not already know about the ability of the United States to intercept communications between the United States and foreign countries. FISA authorizes such interception. So al Qaeda members and affiliates knew before the Times article that its communications could be intercepted. Unless they are a lot more naive than anyone thinks they are, they undoubtedly assumed that their conversations were being intercepted.
Third, the assertion that circumvention of FISA is necessary because of the need for speed is simply horse puckey. Section 105(f) of FISA, 50 USC section 1805(f), authorizes the Attorney General to authorize emergency, warrantless interception of communications for 72 hours. This allows enough time for an application for a warrant to be made under FISA. Applications, once made, are virtually always granted.
Fourth, the idea that the Analysis represents some kind of reasoned judgment that the administration made before embarking on its warrantless wiretap program is demonstrably false. The case most heavily relied on by the Analysis was not decided by the Supreme Court until 2004, three years after the warrantless wiretapping program was instituted.
Finally, the real reason the Bush administration is violating FISA is almost certainly that under FISA, a warrant will only issue if there is probable cause to believe that the target is engaging in activity that will support issuance of a FISA warrant. This, of course, is the standard required by the Fourth Amendment to the United States Constitution. The ease with which this probable cause standard can be met, at least before the FISA course, is evidenced by the fact that only 5 of about 19,000 applications for warrants have been denied by the FISA court. Nonetheless, regardless of what the FISA statute or the constitution say, the Bush administration wants to wiretap people without meeting this standard.
So, it does.
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