Monday, December 19, 2005

Why did Bush skirt the FISA court on wiretaps? Background from Byron York, et al.

(Update, December 19, 2005. Marty Lederman, blogging at Balkinization, has a different view, here. And Ann Althouse, here. And here, from Tom Smith at The Right Coast. And Orin Kerr, at Volokh Conspiracy, here - from a law professor's technical perspective, this is the most important one. And George Will, here, via RCP. John Yoo, here, in the LATimes, via RCP. William Kristol and Gary Schmitt, here, Washington Post. Intel Dump has a number of excellent posts on the subject, including the text of Senator Diane Feinstein's statement on the Senate floor where she tells us that Congress had no idea, no idea at all - I'm shocked, shocked - that the administration would undertake surveillance outside of FISA court authorization. See Judge Richard Posner's rather calm take on all this, in the December 21, 2005 Washington Post, here.)

(Byron York also has this exceptionally interesting story recalling that the Clinton administration, in 1994, also claimed inherent constitutional authority to order warrantless searches. The quotes from then Deputy AG Jamie Gorelick make fascinating reading in the current debate. Here. This is a must read article, and it is entrancing to watch how the folks who believe that this is the proof that Bush is beyond anything the Republic has seen in this century twist and turn to deal with it.)

(Update, Wednesday, December 21, 2005. Note also this important op-ed piece by former Clinton administration associate attorney general John Schmidt, laying out the case law that FISA cannot encroach on the inherent power of the President and that every president since FISA was passed, including President Clinton, have asserted that right and been sustained by the courts. As Glenn Reynolds says at Instapundit, this underlines the otherwise obvious point that this is not some crazy thing dreamed up by the Bushitler administration. Unfortunately, the MSM spin has decided to run furiously with the meme of "relentless expansion of unchecked executive power sought by Bush and Cheney" - see, eg, the Washington Post's story this morning by Peter Baker and Jim VandeHei about the supposedly unique effort by the Bush administration to expand executive power in modern times. That story, focused almost entirely on Cheney, didn't manage to mention Jamie Gorelick's testimony (run in 1994 in the Washington Post itself - where's Lexis when you need it, guys?) asserting the president's inherent constitutional authority - that part of it didn't fit the narrative, I guess. A Washington Post reader would be clueless that the Clinton administration had asserted the same authority. It also doesn't fit the WP's narrative to note that one reason the Patriot Act was so easily and quickly drafted after 9-11 was that most of it was sitting on the shelf in the form of Clinton era, Janet Reno efforts to expand executive authority - against purely domestic targets. The view from the left is that liberal authoritarianism is good, conservative bad. But it is striking as an example of how blogs and the internet have undercut the ability of MSM to press forward a particular political narrative by simply leaving out key evidence. No doubt Baker and VandeHei are good, competent reporters - but their article, with respect to its own frankly opinion-piece (rather than factual reporting) theme, has what the lawyers would call a material omission of fact.)

(Update, Friday, December 23, 2005. Here is the text, courtesy National Review Online, of the Justice Department's defense of the president's authority to order warrantless wiretaps. Here is Tom Daschle in the Washington Post saying that Congress never approved such authority, and Charles Krauthammer, also in the Washington Post, defending the administration, here. And here is a post by liberal law professor Cass Sunstein saying the president does have the authority, courtesy Instapundit. As Sunstein puts it:

It is therefore reasonable to say that the AUMF, by authorizing the use of "all necessary and appropriate force," also authorizes surveillance of those associated with Al Qaeda or any other organizations that "planned, authorized, committed, or aided the terrorist attacks" of September 11.")

(Update, December 26, 2005. Here is Jack O'Neill, pointing out that the call heard post 9-11 to "connect the dots" has always crucially depended on the warrantless electronic interceptions through the NSA. And here is Thomas Bray noting the far more sweeping powers being exercised by Canada, Britain, and France. Michael Barone on hysteria over all this from the New York Times, here.)

(Update, Sunday, January 1, 2006. UVA professor Robert Turner in the Wall Street Journal on why the wiretapping was legal, here, and Orin Kerr's response in the Volockh Conspiracy here, and Tom Smith's response to that, here.)

(My view? [I drafted this well before all the Clinton era material from Jamie Gorelick, et al., had emerged, so my view that this is not a serious legal issue is now far stronger than it was a few days ago. I don't pretend it's as sophisticated as Orin Kerr's.] However: The president has the plenary constitutional power, certainly in the post 9-11 circumstances, to undertake the reported warrantless surveillance, FISA notwithstanding. In any case, Congress authorized action against terrorism prior to and apart from the Patriot Act, knowing fully in the post 9-11 days that this certainly meant the possibility of dealing with terrorist cells on US soil, given that the fact of 9-11 meant they were already here. I think it is astonishing, but telling, that Senator Feinstein (see the senate statement posted at Intel-Dump, here) recites a lot of law about FISA without seriously dealing with the language of the September 14 Congressional use of force authorization that specifically provided that the President "has authority under the constitution to take action to deter and prevent acts of international terrorism." If you already know you have terrorists acting on domestic soil, in the United States itself, and you use that kind of language, I find it questionable to assert afterwards that the president doesn't have power to go around FISA. It is language designed to override concerns from the Church commission days of the 1970s that - somehow - seemed inapppropriate on September 12. I would also add that because I am not an expert on the Moussaoui trial, I would like to understand the Democratic response to what York says, below, was the inability, due to FISA, to examine his computer pre-9/11 even as the attacks were being finalized and ultimately carried out. I'm not enough of an expert on the facts of that to say to say, but I would like to understand the response to that very serious charge. It also appears to me to be a case where senior Congressional Democrats were not unhappy with this before it became public, but now that it is public, it is the most shocking thing since, well, 9-11; after all, Congressional leaders were informed about the program and there is no indication anyone raised a fuss. Senator Rockefeller has raised an internal memo that indicates, if anything, that in his own view he is not smart enough to be either a lawyer or a technical intelligence person - whether lack of smarts qualifies him merely or especially for the US Senate, I cannot say. As for the leakers themselves, where is our new Patrick Fitzgerald, as Max Boot asks in this LA Times opinion piece titled, appropriately enough, "'Plame Platoon' is Awol"? [Note that the Justice Department has since opened an inquiry] Also see this Cassandra post at Tigerhawk following the NYT flipflops on this issue going back decades.).


December 19, 2005, 1:34 p.m.
National Review Online

Why Bush Approved the Wiretaps

Not long ago, both parties agreed the FISA court was a problem.

In the days since the revelation that President Bush authorized the National Security Agency to bypass, in certain cases of suspected al Qaeda activity, the special court set up to provide warrants for national-security wiretaps, the question has come up repeatedly: Why did he do it?
At his news conference this morning, the president explained that he believed the U.S. government had to "be able to act fast" to intercept the "international communications of people with known links to al Qaeda." "Al Qaeda was not a conventional enemy," Bush said. "This new threat required us to think and act differently."

But there's more to the story than that. In 2002, when the president made his decision, there was widespread, bipartisan frustration with the slowness and inefficiency of the bureaucracy involved in seeking warrants from the special intelligence court, known as the FISA court. Even later, after the provisions of the Patriot Act had had time to take effect, there were still problems with the FISA court — problems examined by members of the September 11 Commission — and questions about whether the court can deal effectively with the fastest-changing cases in the war on terror.

People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check." And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things.

Lawmakers of both parties recognized the problem in the months after the September 11 terrorist attacks. They pointed to the case of Coleen Rowley, the FBI agent who ran up against a number roadblocks in her effort to secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda operative who had taken flight training in preparation for the hijackings. Investigators wanted to study the contents of Moussaoui's laptop computer, but the FBI bureaucracy involved in applying for a FISA warrant was stifling, and there were real questions about whether investigators could meet the FISA court's probable-cause standard for granting a warrant. FBI agents became so frustrated that they considered flying Moussaoui to France, where his computer could be examined. But then the attacks came, and it was too late.
Rowley wrote up her concerns in a famous 13-page memo to FBI Director Robert Mueller, and then elaborated on them in testimony to Congress. "Rowley depicted the legal mechanism for security warrants under the Foreign Intelligence Surveillance Act, or FISA, as burdensome and restrictive, a virtual roadblock to effective law enforcement," Legal Times reported in September 2002.

The Patriot Act included some provisions, supported by lawmakers of both parties, to make securing such warrants easier. But it did not fix the problem. In April 2004, when members of the September 11 Commission briefed the press on some of their preliminary findings, they reported that significant problems remained.

"Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act, or FISA, the application process nonetheless continues to be long and slow," the commission said. "Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance. The Department of Justice and FBI are attempting to address bottlenecks in the process."

It was in the context of such bureaucratic bottlenecks that the president first authorized, and then renewed, the program to bypass the FISA court in cases of international communications of people with known al Qaeda links.

There were other reasons for the president to act, as well. In short, it appears that he was trying to shake the bureaucracy into action. The September 11 Commission report pointed to a deeply entrenched it's-not-my-job mentality within the National Security Agency that led the organization to shy away from aggressive antiterrorism surveillance. "The law requires the NSA to not deliberately collect data on U.S. citizens or on persons in the United States without a warrant based on foreign intelligence requirements," the 9/11 commission report wrote,
While the NSA had the technical capability to report on communications with suspected terrorist facilities in the Middle East, the NSA did not seek FISA Court warrants to collect communications between individuals in the United States and foreign countries, because it believed that this was an FBI role. It also did not want to be viewed as targeting persons in the United States and possibly violating laws that governed NSA's collection of foreign intelligence. An almost obsessive protection of sources and methods by the NSA, and its focus on foreign intelligence, and its avoidance of anything domestic important elements in the story of 9/11.

Bush's order, it appears, was an attempt to change that situation. Especially before, and even after, passage of the Patriot Act, the FISA bureaucracy and the agencies that dealt with it were too unwieldy to handle some fast-moving intelligence cases. And now, a group of 43 Democrats and four Republicans is trying to undo even those improvements brought by the Patriot Act; after the effort to renew the law was filibustered last week, Senate Minority Leader Harry Reid exulted, "We killed the Patriot Act." Put all those factors together, and they explain the president's impassioned argument that he has to act to keep the pressure on al Qaeda — especially at a time when others, for whatever reasons, are trying to stop him.

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