Glenn Greenwald, in full crow, writes of the re-connection of the President and FISA over the (remarkably) controversial NSA surveillance program:
For those people (as opposed to the Bush followers who support anything the administration does no matter what and cheer on any expansion of power), this is going to be a hard pill to swallow and then digest. There is simply no way to reconcile (at least honorably) the adminsitration’s prior insistence that our security depended upon eavesdroppping outside of FISA with their sudden willingness to comply with it (now that [...] the Democrats control Congress).
Writes Captain Ed:
[...] my point can be found in the letter [AG] 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.
If they were negotiating with FISA to place the program under their jurisdiction, then they must have agreed with their critics that insisted FISA was a covering authority for such action. And if they’ve spent the better part of two years reaching an accommodation with FISA, why not just tell people what they were doing when the program got exposed?
Similarly, here’s Mark Levin:
For the Bush administration to argue for years that this program, as operated, was critical to our national security and fell within the president’s Constitutional authority, to then turnaround and surrender presidential authority this way is disgraceful. The administration is repudiating all the arguments it has made in testimony, legal briefs, and public statements. This goes to the heart of the White House’s credibility. How can it cast away such a fundamental position of principle and law like this?
Both of these reactions claim that the Bush administration never really believed its initial legal arguments over the President’s authority—a claim that I see no evidence for. In fact, administration officials are explicitly saying otherwise, an assertion made directly in the Justice Department background briefing explaining (to the degree they can publicly), the administration’s new approach—apposite excerpts of which I’ll pull from the Q&A and post, along with some commentary, below the fold:
QUESTION: [...] we already know that the FISA court issues warrants in all kinds of other cases that are individualized. How is it a classified—how is it a big secret as to whether these orders that you’re talking about are individualized or broader than that?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Let’s just say I’m not in a position now to talk about the specifics of how things will happen under particular orders, because that really talks—that really provides a lot of information about (audio gap) of what we’re doing, the capabilities we have under the FISA statute.
I will say that these are complex orders, that the approach taken in the orders is innovative, as indicated in the Attorney General’s letter. And I think beyond that, I’m not going to get into specifics.
QUESTION: What has changed here? What has changed that allows you now allows the FISA court to approve this on whatever basis?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: I don’t know that anything has changed. First of all, let me say that we continue to believe as we’ve always said and as we’ve explained at length that the President has the authority to authorize the terrorist surveillance program, that he has that authority under the authorization for the use of military force and under Article II of the Constitution. That’s not changing.
These orders, however, are orders that have taken a long time to put together, to work on. They’re orders that take advantage of use of the use of the FISA statute and developments in the law. I can’t really get into developments in the law before the FISA court. But it’s a process that began nearly two years ago, and it’s just now that the court has approved these orders.
QUESTION: This is Peter Tomlin. How is this different than going to the court for the warrants before 9/11, which you had the authority to do? I mean, what is different than just the regular statute?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, again, I’m not, I’m really not going to talk about the particulars of how these orders may differ from prior orders.
I will emphasize that the FISA court, the judge of the FISA court who approved these orders, specifically found that they meet all the requirements of the FISA statute.
QUESTION: If it was necessary to go outside the FISA court for national security when the terrorist surveillance program began, why is no longer necessary?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, as I think the President has made clear all along, the question is always how can you obtain the speed and agility that intelligence officers needed to detect without delay these critical communications coming in and out of the United States and to conduct the surveillance that was needed to protect the country. That was always the issue.
It’s not a simple question of fitting that within the FISA statute. And this is a project, again, that we’ve been working on for some time.
QUESTION: You seem to in the letter to the Intelligence committees, you seem to suggest that the speed with which they are able to approve warrants is a factor in what you have—what you’re announcing here today.
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, it certainly was a critical and necessary in determining whether this was an alternative that was available that continued to protect national security and achieve the objectives that we’re achieving.
So, regardless of what happened, that was a critical requirement, and the President and the DNI needed to be satisfied that there wouldn’t be any significant operational impact, continue to do everything we needed to do.
QUESTION: Well, let me ask it this way. What are the substantial advantages referred to in the third paragraph of the letter?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, there are some advantages that I can’t get into because they have to do with the order itself and operations under the order. But apart from that, I think they’re just generally speaking clear advantages with—provided it’s consistent with the requirements of national security and the operational needs of the program—to have a judge review and approve surveillance under the program.
There’s obviously an advantage in having all three branches involved. As we’ve said all along, if it could be done (audio gap). Obviously this issue of the terrorist surveillance program is one that has been under intense public debate and scrutiny on the Hill. And just in all—considering all these circumstances, the President determined that this was the appropriate course.
QUESTION: Can I ask, is one of the factors that is an advantage to going through the process of getting a FISA warrant the use of that information as a predicate or as evidence in a future criminal prosecution?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, I will say that there is well established authorities and patterns for the use of information obtained through FISA surveillance, and that is something that was designed to be part of the system and part of the statute. And so those authorities are there.
QUESTION: Let me just ask whether or not the orders are retroactive. I’m trying to figure out if they deal at all with prior activities that you’ve conducted under the TSP, and also, I mean, do you believe that these orders insulate you from all legal attack? I mean, do you expect that the case, the NSA case before the 6th Circuit is now moot, or what?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: You just asked a lot of questions. I mean, FISA orders are prospective in the sense that you’re seeking authority under a FISA court approval to do X, Y or Z. So we’re talking about a—it’s not unusual in that sense. This is an order to approve surveillance for this 90-day period covered by the order.
Now in terms of the litigation, some of the litigation—and I’m not going to comment on the ongoing litigation, but as you know, some of it is retrospective in seeking damages, including against private parties. Some of it is forward-looking in terms of litigation seeking injunctive relief to try to stop something from happening, including challenging the terrorist surveillance program and the President’s authority as we described it to take that.
So, an order like this will likely have a significant impact one way or the other. Obviously, it’s up to the courts in those cases to decide what the significance of the order is. And they’ll have an opportunity to do that.
QUESTION: Let me just go first. You’re saying that this program now fully complies in every aspect with FISA and is no longer in any respect warrantless, is that correct?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Just as the AG’s letter said, any surveillance, any electronic surveillance as defined in FISA that may have been occurring under the terrorist surveillance program will now, going forward, be subject to the approval of the FISA court and will comply in all respects with the requirements of the FISA statute.
And the President has determined that we have achieved a way of doing that that is consistent with the intelligence needs, and that will protect the country as he promised to do, and that in light of these circumstances, he’s made the determination that he will not be reauthorizing the Terrorist Surveillance Program when the current authorization expires.
QUESTION: Which is when? When does that expire?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, as the President has said, each authorization is good for approximately only 45 days, and we’re in the middle of one now. So I’m not going to tell you the date, but it’s pretty soon.
QUESTION: Is it your view that this will now make it unnecessary for Congress to completely basically undermine any effort by Congress to impose further statutory limitations on this program or make such legislation unnecessary?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, certainly I don’t believe, as we’ve always said, that there’s any need for statutory limitations on the Terrorist Surveillance Program or the President’s conduct of the program, and certainly this should remove or take away the heat for such a debate or the need for such a debate.
But let me say very quickly that we in the administration continue to believe that Congress should enact FISA reform legislation to modernize FISA statute to reestablish what we think is the proper, original focus of FISA on the domestic communications of U.S. persons. We believe that debate should continue to happen, that Congress should consider modernizing FISA very quickly in the new Congress. And frankly, I think that this development should make that debate because it should take some of the political heat off the debate and allow members of Congress and the President to focus on things that are needed.
QUESTION: Okay. Just one clarification here. Are you doing anything different than you were doing before or did you just work out a way for the FISA court to be involved at every stage and in every case?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: I’m not going to discuss precise modifications. Obviously the details of the program were never publicly discussed. The general contours of the program were, and as the letter from the Attorney General explains, the general contours under these orders allow us to do the same thing and to target the same types of communications. And critically the determination was made that operating under the orders that we’ve obtained here provides the speed and agility necessary to effectively conduct that surveillance in a way that will protect—there’s no compromise in national security.
I think the President would not have allowed this to go forward if it were determined that it would compromise national security.
QUESTION: So you’re saying you’re not doing anything different, all you’re doing is working out a way for this to be handled in a bureaucratic fashion that does not in any way impinge on what you thought needed to be done?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Let me just say it this way, the objectives of the program haven’t changed and the capabilities of the intelligence agencies to operate such a program have not changed as a result of these orders.
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Keep in mind, if I could jump in for a second, one thing that has changed—and this goes back to speed and agility issues, not only did we need to make sure that the legal approach we’re using provided the necessary speed and agility, we need to make sure that we over here at the Department of Justice have the infrastructure we need in place—process. And one thing that did change was—authorization earlier this year, last year, the National Security Division, which is a new agency in the Department of Justice, which will—be coordinating with the FISA Court on all kinds of matters including this one. So we’re now equipped in a way we weren’t before to handle this work.
[all emphases mine; h/t to SCOTUSblog]
So. Is there really, as the unholy alliance of Captain Ed, Mark Levin, and Glenn Greenwald(s) would have it, no way to reconcile this return to FISA jurisdiction with the administration’s prior arguments that the President was well within his legal authority to authorize the program under both AUMF and Article II? I don’t think that’s the case at all—as the adminstration official was careful to point out, the Justice Department stands by its earlier legal judgments—and putting the program under the auspices of the FISA Court doesn’t change that one bit.
Instead, what appears to be happening here is that the President and the Justice Department crafted an arrangement with the FISA court making it unnecessary for the President to rely solely on that legal authority—the change being that FISA appears to have been modified in some way to allow the program to continue as it had, only now with the imprimatur of the FISA court, perhaps by allowing pre-emptive warranting—forcing civil libertarians who have come out against the program on the grounds that the President was overstepping his authority to now change their tack should they wish to continue denouncing the program.
Or put more directly, those who disagree with the program on principle will now have to argue as much, as they are no longer able to sublimate their objections into debates over the legal niceties of Article II powers and the President’s powers under AUMF. In short, the program is now indisputably legal.
Will civil libertarians and Democrats who have previously objected to the program now stand behind it? Or will they continue to hold that “spying” on American citizens is beyond the pale—only this time, without the cover of a rogue cowboy to scapegoat for “shredding the Constitution” on his way to fulfilling his role as Commander in Chief.
Of course, Greenwald will likely lump me in with those administration supporters who will cheer on any move by the administration (and in the process bracket out my strong opposition to the Miers nomination, the Schiavo legislation, and myriad other specific instances of disagreement), so take all this with a grain of salt.
And for the record, I would’ve liked to see the President and the Justice Department press the issue of Separation of Powers authority, but then, I’m not in charge of protecting the US. And there’s always the chance that, regardless of how the Administration interpreted their own powers under the law, the Supreme Court might have seen it differently. And Bush is simply not the President to deny the Court’s authority is such a scenario.
Which means that rather than risk the program being scuttled, the Justice Department and the FISA Court have found a compromise that the administration notes doesn’t alter the program or its effectiveness. Whether or not it was the President who “climbed down” on the issue or not is, ultimately, something we can determine at this point—though for what it’s worth, the program will now become permanent (President Obama won’t have the ability to scuttle it by not renewing it every 45 days, for instance) without being substantively altered.
Writes Lyle Denniston of SCOTUSblog:
For years, the Administration had been carrying on its Terrorist Surveillance Program without any prior court approval. The program is said to target telephone calls, e-mails and other electronic traffic of U.S. citizens only when the communications are international and involve at least one person or group that is a member of Al Qaeda or another terrorist organization. After news media disclosed the existence of the warrantless program, the Administration defended its legality, arguing that the President had constitutional authority on his own to authorize the surveillance, but that backup authority had come from Congress in the post-9/11 resolution authorizing a response to the terrorist attacks. Moreover, government officials argued that they could not follow the procedures already set up for intelligence-gathering with the FISA Court’s approval, because that process was too slow and too limited to get at the wide sweep of monitoring the government felt a need to do.
Last year, the Administration, together with some Republican leaders in Congress, worked out a legislative proposal that would give the FISA Court the authority to review the surveillance, and to authorize it—not on an individualized basis, as FISA surveillance orders had always done, but on a program-wide basis. That measure, however, was not passed, and is now considered unlikely to pass in the new Democratic-controlled Congress.
On Wednesday, the Justice Department revealed that it had been working with the FISA Court on a plan that would draw in that Court, under existing law, to approve the same kind of surveillance that was proceeding under the President’s earlier order. As a result, the Surveillance Program will no longer operate under presidential authority when the current White House order expires soon; it has been renewed every 45 days.
The orders, according to the letter to the leaders of the Senate Judiciary Committee, were approved by the FISA judge on Jan. 10. Department officials said that, in addition to the letter to the Judiciary Committee leaders, congressional intellignece committee members had been briefed.
You can decide for yourselves who is the “victor” here, but from where I’m sitting, it looks like a victory for our National Security apparatus. And of course, every American.
update: Orin Kerr is thinking along the same lines:
What’s going on? As with everything about this program, we can’t be sure; we don’t know the facts, so we’re stuck with making barely-educated guesses. But it sounds to me like the FISA Court judges have agreed to issue anticipatory warrants. The traditional warrant process requires the government to write up the facts in an application and let the judge decide whether those facts amount to probable cause. If you were looking for a way to speed up that process Ã¢â‚¬â€ and both sides were in a mood to be “innovative” Ã¢â‚¬â€ one fairly straightfoward alternative would be to use anticipatory warrants.
An anticipatory warrant lets the government conduct surveillance when a specific set of triggering facts occurs. The judge agrees ahead of time that if those facts occur, probable cause will exist and the monitoring can occur under the warrant. The idea is that there isn’t enough time to get a warrant right at that second, so the warrant can be “pre-approved” by the Judge and used by the government when the triggering event happens.
I don’t know if this theory is right, of course. But it seems to be consistent with the clues in the DOJ briefing. Why are these orders taking a lot of time to obtain? If my theory is right, it’s because the triggering facts that amount to probable cause in a terrorism investigation presumably are complicated. There are cookie-cutter drug cases, but I gather there aren’t any cookie-cutter terrorism cases. It probably takes a lot of negotiation with the FISA court judges to figure out what different sets of facts they’ll accept as triggering events that satisfy probable cause. Plus, the Court might have required review every 90 days instead of the one-year max allowed under FISA because the FISA court judges would want to know if their trigger is working out in its application.
What’s the mystery legal development that helped make this possible? If my guesses are on the right track, it’s probably the Supreme Court’s decision in United States v. Grubbs, which was handed down on March 21, 2006. The Grubbs case is the first Supreme Court decision approving the use of anticipatory warrants.
update 2: Powerline:
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.