Editore"s Note
Tilting at Windmills

Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

January 17, 2007
By: Kevin Drum

FISA AND THE NSA....Attorney General Alberto Gonzales says that the NSA's domestic spying program is now being conducted under orders approved by the FISA court:

In the spring of 2005...the Administration began exploring options seeking such FISA court approval....These orders are innovative, they are complex, and it took considerable time and work for the Government to develop the approach that was proposed to the Court and for the Judge on the FISC to consider and approve these orders.

First, I just have to ask: does anybody really believe that the Bush administration has been studiously beavering away on this for two years, and it's just a coincidence that they finally made this concession a mere few days after Democrats took control of Congress? Any takers on that?

Of course, if Gonzales is telling the truth, that's even worse for Bush because it's a clear sign that the previous program was patently illegal. In fact, so illegal that it took two solid years to finally develop an alternative that a judge deemed acceptable. If the program merely needed a few tweaks here and there, it would have taken a month for a judge to approve it, not two years.

Kevin Drum 3:14 PM Permalink | Trackbacks | Comments (42)

Bookmark and Share
 
Comments

As the Carpetbagger Report points out, "the Bush gang also seems to have cut off at the knees every right-wing supporter who said the domestic surveillance program was absolutely necessary, had to be kept separate from FISA, and could not be altered under any circumstances."

Heh. Indeed.

Posted by: Gregory on January 17, 2007 at 3:42 PM | PERMALINK

Does anyone really believe the shrubbies have actually bothered to get FISA court approval?

They're lying. They're always lying. The bush administration's lips are moving; they're lying.

When they come to haul you off to Guantanamo for the nasty anti-bush comments you've posted on Political Animal, and you ask for their FISA warrant, and they laugh in your face, what are you going to do?


Posted by: Yellow Dog on January 17, 2007 at 3:44 PM | PERMALINK

just wait... a few days or weeks from now, it will become clear what this one judge has actually approved. it'll suck.

Posted by: cleek on January 17, 2007 at 3:46 PM | PERMALINK

Gonzales... there's a Himmler in every crowd, some seemingly meek bureaucrat who exists to empower monsters.

Posted by: Kenji on January 17, 2007 at 3:48 PM | PERMALINK

I would like to announce that I have stopped cheating on my taxes.

Posted by: jimmy on January 17, 2007 at 3:50 PM | PERMALINK

And during that period when DOJ was trying to extract a shred of cover from the FISA court, at least one judge resigned in protest. (December 2005, if memory serves.)

Posted by: ammmonite on January 17, 2007 at 3:53 PM | PERMALINK

For the background on the dubious legality and dangerous politics of domestic spying for the Bush White House, see:
- "The Republicans' Constitutional Crisis."

For the latest news, legal documents and other essential materials, see:
- "The NSA Domestic Spying Resource Center."

Posted by: AngryOne on January 17, 2007 at 3:57 PM | PERMALINK

The Bush administration is an outlaw government. Gonzales is its attorney general.

The Bush administration operates on the principles of an organized-crime family. Gonzales is its consigliere.

There is no good reason to believe anything he says unless he provides incontrovertible proof of it.

The Bush administration is both more and less than the Federal Government; its "private" wing (the folks whose pockets are bulging with money) and its "public" wing (the folks who declare everything they do a secret) help each other out, and we pay for it.

The public and private wings of the Bush administration are swimming in information on all of us that was, is, and will be acquired, stored, forged, and shared illegally.

Posted by: Gonzoggles on January 17, 2007 at 4:02 PM | PERMALINK

it would have taken a month for a judge to approve it, not two years.

Kevin, apparently, has never tried to file a lawsuit. Even very simple motions can languish in a docket for months and years. Most of the time was probably waiting for a judge to get around to looking over the plans... meaning our national security was delayed for two years to humor democrats.

Posted by: American Hawk on January 17, 2007 at 4:02 PM | PERMALINK

What!!??

What about the safety of the American people???

I thought warrantless wiretaps were an indispensable tool,used in the life and death struggle to protect us from the Islamo-facists and home-grown vegans(commonly known as Pelositas or, yuck, San Franciscans)?

Why did Dubya abdicate his constitutional, legal and divine (under the Divine Right of Kings (George/GR Rex))obligation? To turn over Americans' security to a "Democrat" created court of liberal-facist, hate-America-first, runaway jurors is an outrage.

Don't try to console me with empty statistics. Sure the FISA court approved 99+ percent of warrant requests. But what of the one-tenth of one percent of requests the FISA court disapproved?

What about smoking hookah, er, gun evidence? I don't want the next smoking gun to be a mushroom cloud of, well, mushrooms. Possibly porcini, shiitake (we are still fighting WWII, right?)or "magic" shrooms. And served to us by Islamo-facist/aetheist, peacenik vegans.

Why does George W. Bush hate America???

Why does the GOP hate America???

:-D

Posted by: Allen on January 17, 2007 at 4:03 PM | PERMALINK

Well, this proves that Bush has been right on at least one subject during the last six years-- Elections have consequences.

Posted by: Daryl Cobranchi on January 17, 2007 at 4:04 PM | PERMALINK

Gonzales" he was against FISA before he was for FISA.

Typical Bush flip-flop. And of course it was dangerous for DEMOCRATS to discuss spying, but remember the magic words! IOKIYAR!

Al jokes aside...

Posted by: Carol on January 17, 2007 at 4:13 PM | PERMALINK

Kevin - your quote from the WaPo story seems not to be in the current version of this link. Words to the same effect are there. Did WaPo change its version mid-posting on you?

Posted by: pgl on January 17, 2007 at 4:22 PM | PERMALINK

No way they're off the hook for this unless they come down on a lot more stuff too, and even then it will be a judgement call.

If Bush really wants to save his skin he really should be thinking about two things: climate change and a regional peace agreement that includes Palestine, Israel and Iran (i.e. Grand Bargain).

If there's any wind of neocon warmongering going forward, I see no reason not to push and prosecute this NSA/FISA thing to its natural and obvious conclusion.

Posted by: Jimm on January 17, 2007 at 4:23 PM | PERMALINK

Even very simple motions can languish in a docket for months and years.

Bush v Palm Beach, one month from filing to SCOTUS decision, including an appeal.

Posted by: cleek on January 17, 2007 at 4:23 PM | PERMALINK

I have the impression that liberals would actually LIKE the administration to be lying about FISA, because that would give them something else to bitch about.

The government took two years to develop orders because it wanted to protect civil liberties in a way that FISA would approve.

Posted by: Al on January 17, 2007 at 4:24 PM | PERMALINK

I agree with cleek above. Its still not at all clear whether this new program complies with the letter of the law.

In a background briefing with reporters, Justice officials declined to provide details about how the new program will work -- including whether the surveillance court has issued a blanket order covering all similar cases or whether it will issue individual orders on a case-by-case basis. Authorities also refused to say how many court orders are involved.
http://www.washingtonpost.com/wp-dyn/content/article/2007/01/17/AR2007011701256.html Posted by: Catch22 on January 17, 2007 at 4:24 PM | PERMALINK

NO need for an investigation.

Of course, if Gonzales is telling the truth, that's even worse for Bush because it's a clear sign that the previous program was patently illegal.

WTF was Bush/Cheney doing, enquiring minds want to know.

I don't know what they were doing but yeah, I'm certain it was patently illegal. I would say it was impeachment illegal, and mostly like prison time illegal.

Posted by: Cheryl on January 17, 2007 at 4:25 PM | PERMALINK

Answered my own question with some help from TPM who provide the AG's letter to the Senate. Kevin drew this quote from the AG's letter.

Posted by: pgl on January 17, 2007 at 4:29 PM | PERMALINK

The government took two years to develop orders because it wanted to protect civil liberties in a way that FISA would approve.

LMAO. Gotta love parody-Al.

Posted by: Disputo on January 17, 2007 at 4:30 PM | PERMALINK

Congress should end all funding of Justice until after the 2008 elections. Make the W. Bush administration put all of their energies into begging for budget monies.

Posted by: Brojo on January 17, 2007 at 4:30 PM | PERMALINK

Of course, if Gonzales is telling the truth, that's even worse for Bush because it's a clear sign that the previous program was patently illegal.

Bush made out like it had to do with terrorist, so here is betting it had nothing to do with terrorism at all, but more to do with vindictive blacklisting that goes on in this Whitehouse.

Posted by: Cheryl on January 17, 2007 at 4:31 PM | PERMALINK

What's the reaction from those who supported the warrantless taps as non-negotiable and an absolute necessity for national security?

Posted by: gregor on January 17, 2007 at 5:08 PM | PERMALINK

I'm old enough to have distasteful memories of 1984 (the book).

Bush and Co. seemed to have adopted the Big Brother concept from Orwell, lock, stock, and barrel.

I bet there are Internet cookies via, say CNN/Fox that actually can webcam back at you while surfing, etc.

If email is readily available, what isn't?

Cell phones may be little GPS tracking systems for Big Brother.

Bushspeak is Orwellian.

By disguising the justifications for ANYTHING Bush does on terrorism, he is quietly Cheyneying away at our own hard won liberties.

What right have a select few to decide that they know what's in our best interest?

Democracy, dear President, is not a license to dictatorialize the planet.

Your lunacy hurts us all. If you want to protect my country from "them", then get over your paranoid visions and sub-literate proclamations

Posted by: Tom Nicholson on January 17, 2007 at 5:12 PM | PERMALINK

Kevin, apparently, has never tried to file a lawsuit. Even very simple motions can languish in a docket for months and years. Most of the time was probably waiting for a judge to get around to looking over the plans... meaning our national security was delayed for two years to humor democrats.
Posted by: American Hawk

And AH apparently thinks that filing a lawsuit in court has some relation to national secruity. The judges are on call for the FISA court.

You've been seriously phoning it in since the elections.

Posted by: cyntax on January 17, 2007 at 5:22 PM | PERMALINK

The government took two years to develop orders because it wanted to protect civil liberties in a way that FISA would approve.
Posted by: Al

Yeah, that's why it took two years, cause the FISA court is sooooo hard to work with. I mean 4 rejections in 24 years? That's sheer bureaucratic obstreperousness, I say!

Posted by: cyntax on January 17, 2007 at 5:28 PM | PERMALINK


Mr. Al needs a cognition coach ... or, or some kind of ass-istance in understanding the issues.

Posted by: harrison on January 17, 2007 at 5:35 PM | PERMALINK

On cue, one of the ubermensches at the Corner is having a fit.

Posted by: gregor on January 17, 2007 at 5:50 PM | PERMALINK

It seems to me that by deciding not to reauthorize the warrantless wiretaps, Bush has cut the legs off of any of the several planned hearings on the wiretaps. No hearings, no findings of illegality, and Bush retains the authority to do this again in secret.

Posted by: Deborah on January 17, 2007 at 6:24 PM | PERMALINK

By going to the Foreign Intelligence Surveilance Court now in january the rullings wont be released as part of a total in the annual FISC application tally for at least a year. http://www.fas.org/irp/agency/doj/fisa/

And the letter doesn`t mention when the current bush authorisation expires. If the authorisation covers more than just whatever Gonzales calls "the" terrorist surveilance program that stuff may continue. It would help if he included something about FISA being the exlusive means of domestic surveilance for foreign inteligence purposes. He didn`t since he thinks he is the servant of king Bush the second.

If the rulling would be for a "whole program", the NYT keeps mentioning its about a person, then it might somehow stick out in this annual rapport. For example with more than usual explanations for the application being denied. And if the court starts granting everything it can get its hands on again we would know from the total what is going on.

Not knowing for that long would kind of suck.

A rise in (or better yet apearance of) failed applications is what should have started alarm bells going of with more than just the usual diehards like James Bamford. But now the alarm bells have been ringing gently so people might pay a little attention. http://cryptome.org/bamford-fisc.htm

I say gently since the NYT, after a year of say "extra research", kind of forgot to mention the call record network analysis part in its early articles. The kind of news one used to expect on, lets say, the front page. (The least informative page of the paper for years now) Funny since that detail is in the book that got all of this started. http://cryptome.org/nsa-program.htm

This part got crystal clear once AT&T was accused of giving access to its daytona based database of call records. (And a quick look at Mark Kleins evidence suggest traffic data is also what is analyzed from internet traffic)

And no its not really a social network as telephone numbers identify phones not people. The "bad guys" might know the distinction, Antony Soprano does, its why he uses pay phones.

Oh and the "we started working on this stuff in the spring of 05 well before any press acounts" bit in the letter shows Gonzales thinks people are to stupid to remember the part where the NYT got invited to the white house where it was decided this thing should be kept a secret, for a year. An election year. According to Gonzales this is when a terrorist surveilance light based on individual FISA warrant applications was decided.

And can the White House get away with calling this "terrorist surveilance"?

The surveilance of only terrorists would be negligent. The American public should demand the surveilance of all radicals.

There is no point in monitoring people once they are terrorist, as in "a person who has commited a terrorist act". The American people demand the surveilance of *potential terrorists*.

For this you have to start surveilance on the first indication someone might have radical ideas. Ideas about say the place of the US army and the saudi royal family in Saudi Arabia, the place of Israel in the middle east, abortion practices in the US, the war in vietnam (weather underground).

Then when you have a terabyte of telephone numbers likely to have been used by people who feel more strongly than average on a topic then you can start looking for an indications of support for violence. Only that gives you what you are looking for... telephone numbers possibly used by people with a higher than average likelyhood of being a potential terrorist. And yes if you send the FBI to those thousands of doors you may very well turn up nothing.

Anyway, has anyone asked the "do these surveiled terrorist include the christian fundamentalist weather underground types" question?

Posted by: asdf on January 17, 2007 at 6:29 PM | PERMALINK
It seems to me that by deciding not to reauthorize the warrantless wiretaps, Bush has cut the legs off of any of the several planned hearings on the wiretaps.

Since when can't Congress hold hearings on things that happened in the past, especially what was done in the recent past by people still in office today?

And, anyway, Congress can investigate the current program even if it has FISC approval, and could still be concerned about its legality, since the FISC's authority is spelled out in law, and the TSP, as administration officials hinted at it, didn't fit within the confines of what FISC had the legal power to authorize.

Posted by: cmdicely on January 17, 2007 at 6:56 PM | PERMALINK

The NSA ceased to exist.

They won't renew the charter.

Civilian courts can't oversee the military DOD/NSA.

Posted by: Al Gonza on January 17, 2007 at 7:03 PM | PERMALINK

I smell a rat. Why would Dubya turn 180 when all it will achieve is a futher fracturing of his base. Staunch right wingers who believe in the unitarian executive will feel betrayed by this reversal. The only thing that makes sense to me is that Dubya believes turning 180 now will serve to hide something far more damaging to him politically. The question is... what is this thing? I suspect its far darker and more onerous than anyone suspected.

Who me? Cyncial?

Posted by: turtle on January 17, 2007 at 7:24 PM | PERMALINK

Glen Greenwald has a lot to say and is amused that some Republicans have come to the realization that they've been cut off at the knees.
Mark Levin:
Is there no principle subject to negotiation? Is there no course subject to reversal? 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?

Posted by: Mike on January 17, 2007 at 7:26 PM | PERMALINK

I've been following US politics for years now, and ever since Clinton was hounded in the WH by this evil bunch of people I have worried for the state of the country. I now live in China, and the practices I see in the pages of the worlds press is more like it is here, eavesdropping, spying, curtailment of human rights, illegal prisons, torture, people hounded out of office, massive corruption, lawyers not allowed to represent clients, sacked lawyers, not yet imprisoned I agree, but shackled they are, the list really does go on, and it makes for depressing reading, it’s like your fore fathers earned the rights they did, by the way I’m British by birth internationalist by nature, so you all won independence from a tyrannical Britain, or monarchy, to create the greatest nation on earth, and then gave it all away to what is little more than primordial soup, Bush et al. Come on you people, show some backbone, at least you have a constitution that you could use, or did all those people in previous wars die for nothing, to let a country be hijacked by a bunch of wankers who call themselves representatives, they represent themselves, and no one else.

Posted by: Terry on January 17, 2007 at 7:35 PM | PERMALINK

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?

The first and obvious answer that comes to mind is that it was never a very serious or sound or fundamental position of principle and law in the first place...just making stuff up to justify what they wanted to do, and what they thought they'd get away with.

Posted by: Jimm on January 17, 2007 at 8:57 PM | PERMALINK

"Studiously beavering away on this"--ha ha, Kevin

"Gonzales said orders issued 1/10 by an unidentified judge puts the NSA program under FISA"

Tony Snow--"No, no,no,no,no,no,no--when asked if was tied to federal action."

This administration has an aversion to the truth

Posted by: consider wisely always on January 17, 2007 at 9:23 PM | PERMALINK

How’s that big plate of smoke that Gonzalez served up, taste?

You know there is more than one “Decider” on this planet.

You’re a decider. Uncle Ed is a decider. Mom and Dad are deciders.

All one has to do is to decide what the government can know and what you decide they will not know.

Simple, really.

Posted by: nada mas on January 17, 2007 at 11:25 PM | PERMALINK

"...and for the Judge on the FISC to consider and approve these orders."

Interesting usage of the singular.

There are at least 10 judges on the FISC, but only one is a die-hard Bush Republican hack.

I, too, remember when one of the Republican-appointed FISA judges resigned in protest over the illegal Bush/Gonzales domestic surveillance program. Apparently, the Bush administration was treating the other judges on the FISA court as they'd been treating all the Democrats (and even some non-hack Republicans) during the last several congresses on the intelligence committees...completely out of the loop...no oversight.

So, just before Gonzales (the little neo-Nazi) is to appear before Democratic-controlled committees in the new democratic congress, he "leaks" that he really is working with the FISA court (or at least with one FISA court judge, a judge who has rubber-stamped anything the neo-Nazis in the Bush administration want).

When will all the Democrats in the newly-Democratic Congress realize that our country has been in a Constitutional Crisis ever since Bush and Cheney (and Gonzales and Rove) slithered into the White House on their slimy, neo-Nazi bellies...or is that neo-con-Nazi bellies?

Posted by: The Oracle on January 18, 2007 at 12:07 AM | PERMALINK

If i am reitterating anything said above, I am sorry. Just came in.

This paticular change of direction is the same as Jose Padilla. If it had alrady been before the court, the judge would go ape-shit.

All the administration is doing is hiding its illegal and anti-liberal activities.

I trust that Nancy and both the house and senate judicial committees will investigate as they said they would.

They should.

Posted by: notthere on January 18, 2007 at 12:21 AM | PERMALINK

Kevin, you get it. Thank you! The point, duh, is that the program was always illegal.

Posted by: lambert strether on January 18, 2007 at 9:24 AM | PERMALINK

Why did it take them years to start looking for a way to comply with the law.

Gonzales in his letter says they started looking for a away to go through the FISA court in Spring of 2005. He says this was long before it became public. http://www.tpmmuckraker.com/archives/002356.php

First, why didnt they start looking back in 2001? Its what the law requires and they didnt even "explore the possibility" for almost 4 years?

Second, while the NYT had not gone public the President knew that they knew.

Posted by: Catch22 on January 18, 2007 at 9:25 AM | PERMALINK




 

 

Read Jonathan Rowe remembrance and articles
Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

Advertise in WM



buy from Amazon and
support the Monthly