Secret court modified wiretap requests


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rick_reno
December 27, 2005, 12:29 PM
I wonder why the FISA court is modifying so many of the Bush administration warrant requests? Could be this court is out of step with the Global Struggle Against Extremism (formerly known as the War on Terror). Thankfully, President Bush saw this pitfall and decided to avoid it.

http://seattlepi.nwsource.com/national/253334_nsaspying24.html?source=mypi

WASHINGTON -- Government records show that the administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court's approval.

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

The court's repeated intervention in Bush administration wiretap requests may explain why the president decided to bypass the court nearly four years ago to launch secret National Security Agency spying on hundreds and possibly thousands of Americans and foreigners inside the United States, according to James Bamford, an acknowledged authority on the supersecret NSA, which intercepts telephone calls, e-mails, faxes and Internet communications.

"They wanted to expand the number of people they were eavesdropping on, and they didn't think they could get the warrants they needed from the court to monitor those people," said Bamford, author of "Body of Secrets: Anatomy of the Ultra-Secret National Security Agency" and "The Puzzle Palace: Inside America's Most Secret Intelligence Organization." "The FISA court has shown its displeasure by tinkering with these applications by the Bush administration."

Bamford offered his speculation in an interview last week.

The 1978 Foreign Intelligence Surveillance Act, adopted by Congress in the wake of President Nixon's misuse of the NSA and the CIA before his resignation over Watergate, sets a high standard for court-approved wiretaps on Americans and resident aliens inside the United States.

To win a court-approved wiretap, the government must show "probable cause" that the target of the surveillance is a member of a foreign terrorist organization or foreign power and is engaged in activities that "may" involve a violation of criminal law.

Faced with that standard, Bamford said, the Bush administration had difficulty obtaining FISA court-approved wiretaps on dozens of people within the United States who were communicating with targeted al-Qaida suspects inside the United States.

The 11-judge court that authorizes FISA wiretaps has approved at least 18,740 applications for electronic surveillance or physical searches from five presidential administrations since 1979.

The judges modified only two search warrant orders out of the 13,102 applications that were approved over the first 22 years of the court's operation. In 20 of the first 21 annual reports on the court's activities up to 1999, the Justice Department told Congress that "no orders were entered (by the FISA court) which modified or denied the requested authority" submitted by the government.

But since 2001, the judges have modified 179 of the 5,645 requests for court-ordered surveillance by the Bush administration. A total of 173 of those court-ordered "substantive modifications" took place in 2003 and 2004 -- the most recent years for which public records are available.

The judges also rejected or deferred at least six requests for warrants during those two years -- the first outright rejection in the court's history.

Attorney General Alberto Gonzales said last week that Bush authorized NSA surveillance of overseas communications by U.S.-based terror suspects because the FISA court's approval process was too cumbersome.

The Bush administration, responding to concerns expressed by some judges on the 11-member panel, agreed last week to give them a classified briefing on the domestic spying program. U.S. District Judge Malcolm Howard, a member of the panel, told CNN that the Bush administration agreed to brief the judges after U.S. District Judge James Robertson resigned from the FISA panel, apparently to protest Bush's spying program.

Bamford, 59, a Vietnam-era Navy veteran, likens the Bush administration's domestic surveillance without court approval to Nixon-era abuses of intelligence agencies.

NSA and previous eavesdropping agencies collected duplicates of all international telegrams to and from the United States for decades during the Cold War under a program code-named "Shamrock" before the program ended in the 1970s. A program known as "Minaret" tracked 75,000 Americans whose activities had drawn government interest between 1952 and 1974, including participation in the anti-war movement during the Vietnam War.

"NSA prides itself on learning the lessons of the 1970s and obeying the legal restrictions imposed by FISA," Bamford said. "Now it looks like we're going back to the bad old days again."

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longeyes
December 27, 2005, 12:58 PM
Why should we not realize that the deep and radical mistrust that exists at every level of this society would not be affecting national security? We are compromised top to bottom. Mendacity rules.

MechAg94
December 27, 2005, 05:38 PM
This looks like a book review or something.

Key Quote:
Bamford offered his speculation in an interview last week.

NukemJim
December 28, 2005, 09:33 AM
If true this explains several items that have been puzzling me.

1 Why didn't Bush use FISA court ? Up until this article (Having read some of the authors works I was extremely impressed by his work ) what little I know of the FISA court was that it rarely modified and rarely refused requests by the .gov, this appears true till recently. Why would anyone who lived though the '60 and 70's do something he knows will upset the MSM and the D's. If it could be done easly by FISA why not do it through FISA

2 Why did the FISA judge resign ? To me it made no sense . He's still bound by security laws/regs, if all the reports in MSM are correct the judge did nothing wrong. He didn't authorize taps without warrants.

I would like to know a lot more about this situatin.

Currently there seems to be two explainations

A Bush is misusing the FISA court by using such warrants against "common" criminals as gangsters, drug smugglers, corruption etc... ( Much as the "Patriot Act" has been used against "common" criminals instead of just against terrorists/suspects. So the court rejects/"modifies" such warrants {as well it should } so they do the taps anyway

B The FISA court is blocking attempts by Buch to track terrorists. Why Beats the bejeebers out of me :confused:

Great options huh? :barf:

Option A Bush is attempting to form an virtually all powerful federal .gov that does not need warrants to wiretap anyone it wants.

Or option B THe .gov is letting internal politiics impede the effort to protect the US from Terror attacks.

By the way if B is true Bush is correcct about leaking some of this data could be considered as aiding the terrorists

Wish to heck I knew.

NukemJim

Nitrogen
December 28, 2005, 10:32 AM
What puzzles me as i've read the story, is that the President has been bypassing FISA court starting in 2001. Most of the modifications happened starting in 2002-2003.

I'd really like to know why the President started bypassing the court at least a year before FISA court started modifying/denying his requests.
(see my later post, I got my dates wrong becuase I suck)

See, this is where my inner liberal sticks its head out and goes "BOO". take the entire bill of rights seriously. Any President that feels it's his duty to infringe on my rights to keep my safe, wether it's "taking away our guns" or "taking away our rights to due process" bothers me quite a bit.

From what I understand about FISA court, the President can ask for a warrant for up to 72 hours after he's already begun monitoring someone, retroactively, so I'd really like to understand more about his reasoning here.

(standing off the soapbox)

Flyboy
December 28, 2005, 10:56 AM
Funny enough, I'm having this very discussion with my dad (an attorney for fed.gov) right now. Here's what I sent him this morning:
I saw that. I read it as "the court has rubber-stamped everything that came before it until Bush came to office." That they've been less generous to him suggests two possibilities:

1) The court doesn't like him, and is playing games with national security to show it, or

2) Bush's requests are substantially more likely to exceed the authority of his office and the FISA court--i.e. more egregious abuse of authority than previous presidents.

Given his recent trend of just ignoring the law and not even trying with the court (among other things), and given that a /secret/ court doesn't have much public exposure, so any political statement it might make is going to be pretty minor, I'm inclined toward 2).

I also consider the 4th Circuit's most recent opinion in the Padilla affair, in which the judge who wrote the opinion, Michael Luttig--appointed by Bush I, and hailed as a conservative judge in the most conservative, government-deferential circuit--noted that "...we believe that the transfer of Padilla and the withdrawal of our opinion at the governmentís request while the Supreme Court is reviewing this courtís decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court."

What we appear have here is a president who wants the authority to say a few magic words (terrorism!), and thus declare somebody as being outside of the law. As soon as you go down that road, the Rule of Law is replaced by the Rule of Man.

(4th Circuit opinion, /Padilla v. Hanft/: http://pacer.ca4.uscourts.gov/opinion.pdf/056396R1.P.pdf Quote from page 2.)
(For context, I sent him the article in question, noting that the court has historically been a rubber-stamp, and he replied to say that the 179 modifications and 6 deferrals/denials shows that it's not a rubber stamp. That was my reply to him.)

Flyboy
December 28, 2005, 10:57 AM
Nitrogen:What puzzles me as i've read the story, is that the President has been bypassing FISA court starting in 2001. Most of the modifications happened starting in 2002-2003.
Can you back that up? What causes you to think that? I haven't seen anything either way, but I'd be very interested to see some dates.

Tomcat1066
December 28, 2005, 11:34 AM
I'd be interested to see WHAT the modifications were, though I doubt we'll ever see anything of the sort. Still, an interesting twist in the story.

Tom

MechAg94
December 28, 2005, 11:35 AM
This whole article is speculation as it said in the article. The has been the problem when the media goes after Bush ever since he first took office. If they should try to stick to the facts and use fewer unnamed sources. All this sensationalism is a bunch of BS.

As far as the judges, we already saw one Clinton appointee resign in a huff. That was good example. He wasn't quoted saying anything, but "close sources" said he resigned because of Bush so that was the headline.

I seriously doubt that Bush is doing anything past presidents haven't done already.

Tomcat1066
December 28, 2005, 11:36 AM
Just because past Presidents did it, doesn't make it right ;)

Just my opinion.

Tom

Nitrogen
December 28, 2005, 12:07 PM
Nitrogen:
Can you back that up? What causes you to think that? I haven't seen anything either way, but I'd be very interested to see some dates.

Whoops, you know what?

I had my dates wrong. According to this story he signed the order in 2002.

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/16/AR2005121600021_pf.html

My face is red, and looks like I get to invalidate 2/3 of my previous post. I suck.

My last point still stands, though. I still have a problem when anyone wants to start stepping on our rights, for whatever reason. I refuse to believe such things are necessary.

I would love to know what's really going on.

Here's a link to the requirements for a FISA warrant. Seems pretty straightforward to me.

http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001804----000-.html

To summarize:
1) who wants the warrant
2) Attny. General approval
3) the identity of the target if known
4) A statement of fact or belief that the person is a forigen power
5) Where the taps/monitoring/etc will take place
6) how you plan to make sure you keep legitimate americans info from being taken
7) what you're looking for, what you're expecting to hear or learn
8) Certification saying why the special court should be involved, and why this information cant be sought through normal criminal channels
9) how long the surveillence will take place
10) any history reguarding the surveillance
11) what techniques you'll need to use to surveill


This seems pretty straight forward to me. I'm assume some clerk could whip this up in about 25 mins.

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