The Great One Provides Background on the FISA Courts:Some brief background: The Foreign Intelligence Security Act permits the government to monitor foreign communications, even if they are with U.S. citizens -- 50 USC 1801, et seq. A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power.
The reason the President probably had to sign an executive order is that the Justice Department office that processes FISA requests, the Office of Intelligence Policy and Review (OIPR), can take over 6 months to get a standard FISA request approved. It can become extremely bureaucratic, depending on who is handling the request. His executive order is not contrary to FISA if he believed, as he clearly did, that he needed to act quickly. The president has constitutional powers, too.
It's also clear from the Times piece that Rockefeller knew about the government's eavesdropping, as did the FISA court. By the time this story is fully fleshed out, we'll learn that many others knew about it, too. To the best of my knowledge, Rockefeller didn't take any steps to stop the eavesdropping. And he's no friend of this administration. Nor is he above using intelligence for political purposes, as his now infamous memorandum demonstrates.
But these leaks -- about secret prisons in Europe, CIA front companies, and now secret wiretaps, are egregious violations of law and extremely detrimental to our national security. They are far worse than any aspect of the Plame matter. The question is whether our government is capable of tracking down these perpetrators and punishing them, or will we continue to allow the Times and Washington Post determine national security policy. And if these wiretaps are violative of our civil liberties, it's curious that the Times would wait a year to report about it. I cannot remember the last time, or first time, this newspaper reported a leak that was helpful to our war effort.
The emphasis is mine, as those were all key points. This is not some secret that only Rove, Bush, and Card knew about. This was discussed, it was approved, and it was eventually halted over concerns.
More analysis from Outside the Beltway, and this is a very Key point to the allegatiosn of "SECRET" SPYING:
As to the searches themselves, there's not enough information here to cause a red flag to go up. Presumably, the NSA doesn't have the time or inclination to eavesdrop on random Americans, preferring instead to concentrate their efforts on those whom they reasonably believe are tied to terrorists.
It also appears that reasonably stringent safeguards were put into the process. In addition to keeping the relevant congressional committees in the loop--a good indication that the administration was being above board--the targetting seems tightly focused...
So, if I read this correctly, it appears to me that Bush was not just blanket targetting Americans, but rather the NSA acted on suspicious characters, protocols and safeguards were followed. However, now that everything else that Dean and the DNC Times has thrown at Bush has not worked, we are going to get this "secret" spying nonsense. The fact that Judge Andrew Naopolitano at FoxNews thinks there may be a civil rights violation leads me to believe that there is none, as he has been consistently wrong everytime he makes a pronouncement.
As usual, much ado about protecting the American people, twisted for political benefit and the profits of Lefty publishing houses and conglomerates.
More Updates
Outside the Beltway has More. It could be that this does not violate provisions against spying against citizens after all.
Update 3: The the opening paragraph of FISA [TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1802] states:
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
According to the definitions in 1801:
(i) “United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.
The NYT piece was pretty clear that the surveillance was not directed against “United States persons” under this definition:
Administration officials are confident that existing safeguards are sufficient to protect the privacy and civil liberties of Americans, the officials say. In some cases, they said, the Justice Department eventually seeks warrants if it wants to expand the eavesdropping to include communications confined within the United States. The officials said the administration had briefed Congressional leaders about the program and notified the judge in charge of the Foreign Intelligence Surveillance Court, the secret Washington court that deals with national security issues.
So, even in the view of those who felt this policy was so aggregious that they violated their sacred trust, warrants were obtained even in the case on non-"U.S. persons" in cases where the surveillance was exclusively domestic.
I think it is more political manuevering and nuance. I think this is much ado at trying to get Iraq off the front page.
