December 27, 2005

Maybe This Explains It? UPDATED

Hatched by Dafydd

UPDATE: see below.

A UPI report -- if true -- may actually give us some insight into why Bush bypassed the Foreign Intelligence Surveillance Act (FISA) court and ordered, using his own plenary power as president, the National Security Agency (NSA) to intercept foreign-based phone calls and e-mails to known al-Qaeda affilliates and to analyze the traffic patterns of such electronic communications:

Bush was denied wiretaps, bypassed them
United Press International
December 27th, 2005

WASHINGTON, Dec. 26 (UPI) -- U.S. President George Bush decided to skip seeking warrants for international wiretaps because the court was challenging him at an unprecedented rate.

A review of Justice Department reports to Congress by Hearst newspapers shows the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than the four previous presidential administrations combined. [Emphasis added]

The story claims that, while the FISA court ordered "substantive modifications" on only 2 of 13,000 surveillance warrant requests prior to the 9/11 attacks (and denied none), since then, they have demanded modifications on 179 out of 5,645 requests -- and rejected six others outright. The court went from a modification rate of 0.015% before we were at war to a rate of 3.2% afterwards, more than 200 times the rate of demands for modification.

Nearly all of these demands (97%) occurred in 2003 and 2004, a year after Bush began the NSA program; so Bush's order was clearly not a reaction to being rebuffed, as the newsies will doubtless try to spin it (including UPI above: the court was not yet "challenging him at an unprecedented rate" in 2002, when he made the decision).

But the most plausible explanation to me is that Bush realized we would need vastly increased surveillance of known or suspected terrorists operating within the United States and communicating to al-Qaeda agents abroad... and the president rightly suspected that the plain inertia of the court meant it would forever be a "September-10th" body, unable to deal with the September-11th world in which we now live.

This, plus the spotty record of courts dealing with actual terrorism-related prosecutions, is the unanswerable argument why we cannot fight against jihadist terrorism solely through the criminal justice system -- or even, as with the FISA court, a justice system set up for dealing with Soviet spies. The Bush doctrine and approach is the only workable alternative we have.

UPDATE: Bill Faith of Small Town Veteran notes that the Seattle Post Intelligencer has a longer article on the FISA court denials. Alas, it doesn't give us any more information, except that James Bamford, author of the Puzzle Palace, opposes the NSA surveillance... and that he cannot count either, as he, too, claims that this meddling was responsible for Bush's decision, despite the fact that nearly all the modification requests came after Bush issued the executive order to the NSA.

Hatched by Dafydd on this day, December 27, 2005, at the time of 1:55 PM

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The following hissed in response by: Bill Faith

Dafydd, there's a longer story on this you might find interesting

on the site and links to some other related information
in my

Jihadis and Wiretaps and Moonbats! Oh, My!
post (written before I'd seen the
UPI and Seattle PI articles). It's sounding to me at this point like the judge
who recently resigned (or was fired?) from the FISA court may have been one of
al-NYT's sources for their wiretap story. I'll link to your post later in a
continuation of my post.

The above hissed in response by: Bill Faith [TypeKey Profile Page] at December 27, 2005 2:42 PM

The following hissed in response by: Bill Faith

Well, for a few days I was able to leave you trackbacks again but today I can't. I don't know whether you changed something or if TypePad did. I linked to your post from Jihadis and Wiretaps and Moonbats! Oh, My! (Updated)

The above hissed in response by: Bill Faith [TypeKey Profile Page] at December 27, 2005 4:53 PM

The following hissed in response by: hunter

I think the FISA court dispute was beside the point.
The point is that the President, as every President before him, acted lawfully to collect information on foreign enemies. The fact that the enemies were communicating to people who may have been in the US is irrelevant.
The fact is the President consulted and advised the Congress on the Exec. Order, and only implemented the Exec. Order after consultation with legal counsel from the AG to the IG of the NSA.
The only thing to focus on in this is that we now have a large number of people who are violating the law in leaking classified informaiton during war time.
The journalists who received that information need to be compelled to divulge what criminals gave them that information.
The people who vilated the law need to be prosecuted as vigorously as the law allows.
If the MSM organs broke any law in receiving the stolen informaiton; if they encouraged it, aided it or conspired to help break the law, those responsible need to be prosecuted.
We have a war to win. Despite the efforts of poltroons and journliasts, we must win this thing.

The above hissed in response by: hunter [TypeKey Profile Page] at December 27, 2005 6:55 PM

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