August 3, 2007

Time to Sack the Robes

Hatched by Dafydd

Today, the Washington Post revealed the stunner that back in March of this year, a judge on the Foreign Intelligence Surveillance Court (FISC) ruled that the president had no legal authority to order the NSA to intercept phone calls originating abroad... and where the terminating point was also abroad.

Mind, this is not the "Terrorist Surveillance Program," TSP, that Democrats have been so agitated about; this case was not about calls where one end was in the United States, but rather about those where both ends -- or all ends, in the case of conference calls -- are in foreign nations... but the call happens to be routed through an American node, typically in New York or California. No information is known about the reason for the ruling or even which judge issued it (or, of course, who appointed that judge); those data are all still secret.

(It may even be a legally correct ruling; but I cannot imagine that the congressional authors intended the FISA Court to stand in between the NSA or CIA and urgent overseas terrorism intelligence. Isn't there some Supreme Court precedent that, no matter what the law says, a court can't issue an order that's just plain dumbass?)

In fact, we weren't even supposed to know this much; but House Minority Leader John Boehner (R-OH, 88%) let the beans out of the cat to anchor Neil Cavuto on Fox News:

"There's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States," Boehner told Fox News anchor Neil Cavuto in a Tuesday interview.

Thus, for the last few months, the NSA has been barred by law from the most fruitful source of terrorism intelligence: phone calls from, say, Pakistan to Paris. And while we don't know the exact reason behind the limitation, we certainly know the impact... and it has been so devastating to American national security, and so preposterous that the president's power as Commander in Chief would not extend even that far -- constitutional protections now extend to all foreigners living abroad? -- that even Democrats are frantic to pass legislation undoing that disaster of a decision:

The practical effect has been to block the NSA's efforts to collect information from a large volume of foreign calls and e-mails that passes through U.S. communications nodes clustered around New York and California. Both Democrats and Republicans have signaled they are eager to fix that problem through amendments to the Foreign Intelligence Surveillance Act (FISA)....

"This means that our intelligence agencies are missing a wide swath of potential information that could help protect the American people," [Boehner] said. Boehner added that some Democrats are aware of the problems caused by the judge's restrictive ruling and the problems it has caused for the administration's surveillance of terrorism suspects.

"The Democrats have known about this for months," Boehner said. "We have had private conversations, we have had public conversations that this needs to be fixed. And Republicans are not going to leave this week until this problem is addressed."

This ruling hands us another demonstration, as if more were needed, that the federal judiciary is simply too slow, too rigid, and too deferential to precedent to be trusted with control over the gathering of intelligence in wartime. In past eras, nobody could have imagined so absurd a situation; judges did not tell the OSS what they could or could not do to intercept information about Nazi Germany, nor did the federal judiciary get to opine on whether it was legal for the United States to decode intercepted Japanese naval communications.

In particular, the current law, the Foreign Intelligence Surveillance Act, was enacted 29 years ago... not only a year before the current age of terror began but also the year before the first commercial cell phone network came into existence (in Japan). The FISA took neither modern communications nor the contemporary threat into account -- since neither yet existed.

Judges on the FISC continue to decide cases about terrorism intelligence under rules meant to govern spying on the Soviet Union during the Cold War. The USSR was not going to attack us in a matter of hours; intelligence was generally long-term, required no immediate action, and could wait days (or weeks) upon the whim of a FISC judge, while he slowly pondered and mulled his way through years of caselaw and congressional legislation (typically arising from anti-intelligence agency bias in the post-Watergate political world).

The Judicial branch is inherently too slow-reacting to be the "gatekeeper" for terrorism intelligence: They are simply incapable of making decisions on the minute-by-minute schedule required to protect the United States from future terrorist attack. It's like putting Ents in charge of national security.

The Director of National Intelligence, Mike McConnell, has been testifying on the Hill recently about a desperately needed change of mindset; he wants the gatekeeper to be, not a court -- not even the special court set up to handle "foreign intelligence surveillance" (read "spying on the Soviets") -- but the Attorney General of the United States. If necessary, I presume a judge could intervene afterwards, if any of the intelligence was introduced as evidence in a criminal or civil court case. Again, even Democrats should understand the importance of this; after all, there is at least a 50-50 chance that the next president will be, in fact, a Democrat:

The effect of the judge's decision to curtail some of that surveillance was to limit the flow of information about possible terrorism suspects, according to congressional staffers briefed on the ruling. Last week, McConnell told the Center for Strategic and International Studies that the government faces "this huge backlog trying to get warrants for things that are totally foreign that are threatening to this country...."

In April, McConnell proposed a much broader revision of FISA than what the administration is pressing Congress to approve this week. Under the new plan, the attorney general would have sole authority to authorize the warrantless surveillance of people "reasonably believed to be outside the United States" and to compel telecommunications carriers to turn over the information in real time or after it has been stored.

Democrats, still feeling heat from the Kos wing of the party, have countered with a proposal that would expand the administration's surveillance authority but still leave control in the hands of the FISA Court... and which would sunset in six months, presumably forcing the president to come back to Congress again and again, hat in hand, to beg for continued authority to safeguard the nation. This completely ignores the urgent question of timeliness.

For example, civil libertarians typically argue that warrantless surveillance was unnecessary because the current law allows the CIA or NSA to get a "retroactive" FISA warrant; but that only lasts for a limited period of time -- after which, unless such a warrant is issued, the surveillance must stop and wait until the judge finally gets around to deciding. And as McConnell noted, there is a "huge backlog" for FISA warrants, a logjam that is impacting our ability to collect actionable intelligence in real-time, giving us the best chance of thwarting an attack.

Not only that, but in order to undertake surveillance under FISA and ask for a retroactive warrant later, the agency must still fill out all the paperwork first, before starting the surveillance; and the forms must include "probable cause" to tap that particular phone call, probable cause at the same level as it would take to get a warrant. Thus, no matter how suspicious a series of calls between Teheran and Mosul look, before we could listen to them under FISA, we would first have to have as much probable cause as we would need here at home to search the house of a suspected drug dealer!

This is an outrage. I strongly urge the president to get behind the McConnell proposal and really go to work twisting congressional arms behind backs to get this enacted. When talking to Democrats, stress the fact that if Hillary Clinton or Barack Obama is elected next year, then they'll have the power... so it's not a tribal-partisan issue!

Immediate update: As I write this, Hugh Hewitt reported that President Bush has just demanded that Congress enact the new legislation before they leave for their August recess... and he has announced that, if the DNI says the legislation sent by Congress to the White House does not give McConnell what he needs to protect America, then Bush will veto it and insist that Congress remain in session until they get it right.

They could ignore the president, of course, but that would be politically disasterous for the Democrats. We'll see whether the majority can get its act together in time, or whether -- just like the Iraqi parliament -- they decide their August vacation is more important.

We already have quite adequate protections against a president using the excuse of "foreign intelligence surveillance" to scoop up loads of information about American political activists; none of it could be introduced in court without a judge's approval. But as far as actual, real-time intel about pending attacks on the United States or our allies, there is no reason for federal judges even to be involved... not until months or years later, when the scene shifts to a legal case. Just as it would be absurd for battlefield commanders to have to get judicial approval before ordering an attack on a terrorist safehouse.

Only the Executive has sufficient "energy" to be trusted with collecting military intelligence.

Hatched by Dafydd on this day, August 3, 2007, at the time of 3:52 PM

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The following hissed in response by: Fat Man

FISA is only one of the disastrous laws that Congress passed in the 1970s. All laws passed between 1968 and 1980 should be scraped and Congress should start over again.

The above hissed in response by: Fat Man [TypeKey Profile Page] at August 3, 2007 8:02 PM

The following hissed in response by: Chris Hunt

This is always the problem with legislative solutions; they have to be written without heed to future innovation, and they have to be explicit enough to pass the Constitutionality test.

Makes the Founders look even smarter now, doesn't it?

The above hissed in response by: Chris Hunt [TypeKey Profile Page] at August 4, 2007 4:43 AM

The following hissed in response by: Chris Hunt

Nice reference to Ents, BTW.

The above hissed in response by: Chris Hunt [TypeKey Profile Page] at August 5, 2007 4:18 AM

The following hissed in response by: Gbear

Good thing we have Echelon.

- Fat Man - I think we should review all laws since the whiskey rebellion.

The above hissed in response by: Gbear [TypeKey Profile Page] at August 6, 2007 1:11 PM

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