Wednesday, December 28, 2005

Was Bush upset that FISA Court Actually Wanted To Comply With Law?

It appears that the reasoning behind the Bush administration decision to bypass the FISA courts and use warrantless wiretaps was, simply, they were frustrated at not getting their own way.

Faced with the FISA court's refusal to simply rubber-stamp the applications, and realizing that the chances of getting congress to expand surveillance powers over U.S. citizens were slim, the Bush/Cheney White House apparently decided that they did not need to bother with compliance with the existing law, enacted in response to abuse of the federal government's surveillance powers by the Nixon White House.

The Seattle Post-Intelligencer's Washington Bureau has an article that details some of the statistics from the Foreign Intelligence Surveillance Act (FISA) court requests over the 26 years the secret court, charged with oversight and authorizations for wiretaps and communications intercepts, has been in existence. ( "Secret court modified wiretap requests" ) .

Since the FISA Court was first seated in 1979, through 2004, it has approved 18,742 requests for warrants, and denied 4 (all 4 were denied in 2003 - obviously numbers are not yet available for the year 2005). Of those, 6,652 of those approvals have been during the time span of 2000 through 2004. This is a little over 35% of the total. (For a table showing the annual count, see "EPIC: FISA orders 1979-2004" ).

During the years before 1995, the average (unweighted) number of annual approvals was 503, In 1996, there were 697 FISA approvals, and the numbers have gone up each year. Again, there have only been 4 outright rejections of FISA requests in the entire history of this court.

So why would the Bush/Cheney White House choose to by-pass the FISA Court? It would not be that there was insufficient time to get a warrant before starting surveillance -- the original FISA legislation allowed for a 24-hour period in which to seek a retroactive warrant, and this time period was lengthened to 72 hours by the PATRIOT Act.

However, the FISA Court may also make changes to the applications, in order to make these requests acceptable under the law, rather than simply deny the request. This may be the bone of contention for the Bush/Cheney White House. From the Seattle P-I article:
... 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.

"They wanted to expand the number of people they were eavesdropping on, and they didn't think they could get the warrants they needed from the court to monitor those people," said Bamford, author of "Body of Secrets: Anatomy of the Ultra-Secret National Security Agency" and "The Puzzle Palace: Inside America's Most Secret Intelligence Organization." "The FISA court has shown its displeasure by tinkering with these applications by the Bush administration..."
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.

The 11-judge court that authorizes FISA wiretaps has approved at least 18,740 applications for electronic surveillance or physical searches from five presidential administrations since 1979.

The judges modified only two search warrant orders out of the 13,102 applications that were approved over the first 22 years of the court's operation. In 20 of the first 21 annual reports on the court's activities up to 1999, the Justice Department told Congress that "no orders were entered (by the FISA court) which modified or denied the requested authority" submitted by the government.

But since 2001, the judges have modified 179 of the 5,645 requests for court-ordered surveillance by the Bush administration. A total of 173 of those court-ordered "substantive modifications" took place in 2003 and 2004 -- the most recent years for which public records are available.

The judges also rejected or deferred at least six requests for warrants during those two years -- the first outright rejection in the court's history.

Attorney General Alberto Gonzales said last week that Bush authorized NSA surveillance of overseas communications by U.S.-based terror suspects because the FISA court's approval process was too cumbersome...

"Too cumbersome" to show probable cause.

I guess that translates to "You *never* let me have any fun! I'm gonna play and not let you know where. So there!"
EPIC is the Electronic Privacy Information Center, a 501(c)(3) tax-exempt corporation. From their annual report: "The ELECTRONIC PRIVACY INFORMATION CENTER is a public interest research center in Washington, D.C. It was established in 1994 to focus public attention on emerging civil liberties issues and to protect privacy, freedom of expression and constitutional values in the information age"

The table chronicling the FISA requests is exerpted from the list of FISA annual reports, as compiled by the Federation of American Scientists (see "Foreign Intelligence Surveillance Act")


No comments: