Terrorist Surveillance Program; What's Going On?
Power Line
A knowledgeable reader--a former professional in the area--sent us his thoughts on the likely significance of Attorney General Gonzales' disclosure that the Terrorist Surveillance Program is being moved under the jurisdiction of the FISA court, which we wrote about here. His comments, while necessarily speculative, strike us as highly plausible:
<<< It's difficult to be certain exactly what is going on here, since the letter is intentionally vague and no details were provided in the background briefing. It is more than likely that there will be a leak, and then we may have a better idea.
In the meantime, it's worth pointing out that the letter appears to track the language of of a specific section of the FISA statute, 1801(f)(1):
*** (f) "Electronic surveillance" means-
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; ***
Compare that to Gonzales' letter:
*** ...a Judge of the Foreign Intelligence Surveillance Court issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization. ***
1801(f)(1) is the only section that seems to fit this scenario. (3) applies to domestic surveillance, where both parties are inside the US, whereas the Gonzales letter specifically states that the order applies to international communications. (2) only covers situations in which the collection occurs inside the US and, further, only applies to wire communications. The mention of probable cause is not new--that merely repeats section 1805:
*** (a) Necessary findings Upon an application made pursuant to section 1804 of this title, the judge shall enter an ex parte order as requested or as modified approving the electronic surveillance if he finds that- (1) the President has authorized the Attorney General to approve applications for electronic surveillance for foreign intelligence information; (2) the application has been made by a Federal officer and approved by the Attorney General; (3) on the basis of the facts submitted by the applicant there is probable cause to believe that- (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and (B) 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; ***
The importance of the fact that Gonzales' letter appears to track 1801(f)(1) is this: 1801(f)(1) specifically covers "radio communications" and contains none of the limiting language that (2) and (3) contain. Arguably, "radio communications" would include all or most wireless communications--in other words, virtually all international communications nowadays.
Here is a possible scenario to explain this new order from the FISC. Previously a lot of collection of wireless communications was undoubtedly done by targeting persons outside the US, and for that no FISC order is needed: such an order is only needed for radio communications sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person. Other collection outside the US undoubtedly just scooped up whatever was available and was then analyzed using sophisticated software to produce leads. But the Gonzales letter refers to "targeting for collection." Obviously, if person #1 in, say, Waziristan is in regular communication with person #2 in Manhattan it would be possible to target person #1 in Waziristan for collection, and end up collecting person #2 in Manhattan, without getting an order. If in the course of that collection it becomes apparent that person #2 in Manhattan is also talking to person #3 in, say, Baluchistan, person #3 could also be targeted, resulting in person #2's communications being collected in that instance as well. All without an order from the FISC, since technically the persons targeted were outside the US.
From published accounts, it appears that the FISC balked at accepting information that was collected in this manner for probable cause purposes when it was submitted by the FBI in FISA applications targeting US persons. It may be that the FISC considered that this type of operation was an end run around them. The deal might then be something like this: the FISC is informed of probable cause against the non-US persons, if those persons are being targeted for collection when they communicate with persons inside the US. That keeps the FISC in the loop and they get to say they're monitoring intel operations for possible abuse: they can say that whatever submissions they receive must be sworn to, and so that means there is accountability. But the order that the FISC has now issued may mean that they will drop objections to accepting NSA information for purposes of probable cause in FISA applications that target US persons, now that a chain of accountability has been established that covers all the information that is submitted to the FISC.
This is speculation, but I think there has to be something in this for both the Government and the FISC. I think the Government would win on any challenge to the existing FISA law, and no one really has the stomach to amend FISA. On the other hand, the Government is tired of being beaten up with baseless accusations of lawlessness. This way they accomodate feelings on the FISC, but don't yield on principle. >>>
UPDATE: Our friends Ed Morrissey and Michelle Malkin interpret this as a serious retreat by the Bush administration. I can't rule that out, since we don't know the terms of the "orders" the Justice Department negotiated with the FISA court. But based on what we do know, I see no reason to assume that this interpretation is correct. Ed argues:
<<< I disagree with [Dafydd ab Hugh] about this being a Bush triumph, and my point can be found in the letter Gonzales sent to the committee:
*** In the spring of 2005 -- well before the first press account disclosing the existence of the Terrorist Surveillance Program -- the Administration began exploring options for seeking FISA Court approval. ***
This is my point, here. It's not that the program has ended; it obviously will continue. My anger is over the fact that the Bush administration insisted on two points: one, that the FISA court would not cooperate on streamlining the process for warrants on these intercepts, and the second that the Bush administration had the authority to proceed without it. They took everyone along for a big ride, making all sorts of legal arguments about the AUMF and Article II -- and now Gonzales has revealed that even they didn't really believe it. >>>
I think Ed is wrong here. The administration never had any objection to going to the FISA court for warrants where possible; they have long said that much terrorist-related surveillance is carried out pursuant to such warrants. The issue raised by the administration was a very practical one: there are some circumstances where the FISA warrant procedure is too slow. In those cases, the President relied on his Article II authority as Commander in Chief to authorize the NSA to initiate warrantless surveillance on an emergency basis.
We don't know the terms of the administration's agreement with the FISA court, but I have no reason to doubt what Gonzales wrote to Senators Leahy and Specter: that it will "allow the necessary speed and agility," just as the warrantless program did. If that is the case--and it is consistent with the interpretation offered by our reader above--I don't see why this should be viewed as a "climb-down" or a defeat for the administration or for national security.
Nor do I understand Ed's claim that this agreement is inconsistent with the administration's position--correct, as I have argued repeatedly--that the President was within his constitutional authority in approving the NSA program outside the FISA structure. As stated above, the administration has always gone to FISA for warrants where possible. There simply is no inconsistency between the President's using his constitutional authority as commander in chief where necessary, while also using statutory authority conferred by Congress where appropriate.
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