More FISA requests denied under Bush than ever before

[Bartholomew Roberts]

I keep seeing members repeating this information and wanted to share the results of my own research.

This factoid is sadly true. Compared to 1999 requests, the Bush administration has suffered a level of denial more than 100,000x that of the Clinton administration.

The reason for this is that prior to 2003, FISA have never denied an application since it was created in 1979. In 2003, FISA broke this streak by denying four out of 1,727 applications. In 2004, FISA approved a record 1,758 applications (with no denials).

Source:
http://www.epic.org/privacy/wiretap/stats/fisa_stats.html

So all the talk you see about FISA suddenly denying applications during the Bush administration refers to these four denials in 2003 out of 1,727 requests. Not that you would know it from many of the comments referencing that information...

 

[rick_reno]

Good data. Thanks for digging it up.

All this proves is that the FISA court is not on the team of liberty and freedom - NO - they are squarely on the terrorism team, being captained by none other than Bin Laden. Failing to move freedom and liberty forward by refusing four (4) warrant requests demonstrates who this court is cheering for - and it's not our team. Not only that, but the Bin Laden team has their cheer leaders in burkas - they're not fun to watch. It's 3rd down and 15, but we're on their 30 yard line and Cheney can kick - but let's face it, we need a touchdown.

 

[Kodiaz]

rick reno +1

 

[Flyboy]

So all the talk you see about FISA suddenly denying applications during the Bush administration refers to these four denials in 2003 out of 1,727 requests. Not that you would know it from many of the comments referencing that information...

Close. What you say is true, but also omits another detail:

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.

Source: http://seattlepi.nwsource.com/national/253334_nsaspying24.html?source=mypi, as quoted in http://thehighroad.org/showthread.php?t=173245.

It would seem that 179 is probably a more accurate depiction of the situation than four; it's not just denials, it's any "substantive modification."

 

[Bartholomew Roberts]

It would seem that 179 is probably a more accurate depiction of the situation than four; it's not just denials, it's any "substantive modification."

Thanks for the additional facts. Personally I don't find less than 1% modified or denied to be a big deal, particularly when the Bush administration has submitted almost half as many requests in three years as the entire previous 22 year history of FISA.

 

[Flyboy]

particularly when the Bush administration has submitted almost half as many requests in three years as the entire previous 22 year history of FISA.

That should also be a sign: Bush, in three years, has submitted half as many requests as the preceeding 22 years? I recognize that there's a threat out there, but when has there not been a threat? Extrapolated, that's roughly a fourfold increase in requests, and that doesn't include his warrantless operations (for which I can find no excuse). Somehow, I'm not inclined to believe that the world has only become dangerous since Bush took office; further, while it's only a 1% reject rate, it's still a couple orders of magnitude greater than in the past. Sounds to me like he's pushing a historically rubber-stamp court past even its own limits.

 

[1911 guy]

I think Flyboy's previous post is on the money. Denied requests per granted requests is still an astronomical approval rate.

 

[Khornet]

No, it's not

PLEASE PEOPLE, read the specs for submitting a FISA request I posted on the other 'Bush wiretap' thread. They are so detailed and stringent that you must already have an almost perfect case to even SUBMIT the request. In other words, you must have so much evidence that you no longer NEED the wiretap.

If Bush has submitted more FISA requests than anyone in history, maybe that's because he's taking his job more seriously than Clinton did. Flyboy, it's fatuous to remark that the world didn't just begin to be more dangerous since Bush took office; of course not. New York city didn't begin to have a crime problem when Rudy took office; police activity increased because he, unlike his predecessors, decided to do something about it. Same with Dubya.

 

[Waitone]

Intelligence operations and law enforcement are not one and the same. This thread demonstrates the difference in spades. Maybe the reason FISA court had such a high approval rating is because anything brought before the court was giftwrapped NOT BECAUSE THE COURT WAS A LAPDOG.

Perhaps we can find some statistics detailing the number of leads under investigation vs the number of cases presented to the court. I suspect that figure would give a clear picture of how the system really works. What we have so far is just arm waving.

 

[Khornet]

Waitone,

entirely correct.

Also for your enjoyment:

FISA 1801 (f) defines 'tapping' as:

"acqusition by an electronic, mechanical, or other surveillance device of the **contents** of any wire or radio communication."

Emphasis mine. The NSA was scanning addresses. They weren't reading anybody's mail...unless the recipient or sender was tied to AQ.

 

[Bartholomew Roberts]

Here are the famously strict FISA requirements:

FISA established a special court--the Foreign Intelligence Surveillance Court (FISC)-- composed of seven federal district court judges appointed by the Chief Justice for staggered terms and from different circuits. Individual judges of the FISC review the Attorney General's applications for authorization of electronic surveillance aimed at obtaining foreign intelligence information. The FISC meets two days monthly.

The proceedings are not adversarial: they are based entirely on the DOJ's presentations through its Office of Intelligence Policy and Review.

Under FISA, the Justice Department reviews applications for counterintelligence warrants by agencies before submitting them to the FISC. The Attorney General must personally approve each final FISA application.

The application must contain, among other things:

a statement of reasons to believe that the target of the surveillance is a foreign power or agent of a foreign power, (subject to the relevant amendments made by the USA-PATRIOT Act, discussed below)

a certification from a high-ranking executive branch official stating that the information sought is deemed to be foreign intelligence information, and that the information sought cannot reasonably be obtained by normal investigative techniques;

statements regarding all previous applications involving the target;

detailed description of the nature of the information sought and of the type of communication or activities to be subject to the surveillance;

the length of time surveillance is required;

whether physical entry into a premises is necessary, and

proposed procedures to minimize the acquisition, use, and retention of information concerning nonconsenting U.S. persons.
For U.S. persons, the FISC judge must find probable cause that one of four conditions has been met:

(1) the target knowingly engages in clandestine intelligence activities on behalf of a foreign power which "may involve" a criminal law violation;
(2) the target knowingly engages in other secret intelligence activities on behalf of a foreign power under the direction of an intelligence network and his activities involve or are about to involve criminal violations;
(3) the target knowingly engages in sabotage or international terrorism or is preparing for such activities; or
(4) the target knowingly aids or abets another who acts in one of the above ways.

An order of the FISC may approve electronic surveillance of an agent of a foreign power for ninety days and of a foreign power for a year. Extensions may be granted on the same terms.

The records and files of the cases are sealed and may not be revealed even to persons whose prosecutions are based on evidence obtained under FISA warrants (except to a limited degree set by district judges' rulings on motions to suppress). There is no provision for the return of executed warrants to the FISC, for certification that the surveillance was conducted according to the warrant and its "minimization" requirements, or for inventory of items taken pursuant to a FISA warrant.

The "Court of Review"
FISA provides for government appeals of FISC decisions to be made to the Foreign Intelligence Surveillance Court of Review. As of June, 2002, the Court of Review had never met, nor had an appeal ever been lodged. The court convened for the first time on September 9, 2002, to hear a unilateral appeal from the Department of Justice appealing a May 2002 FISC ruling (described in detail below).

The only public mandates governing the Court of Review, which are contained within FISA, direct that the information submitted to the court of review be done under the same seal of secrecy as that submitted to the FISC.

Now what requirement in there is so burdensome that after you get 4 requests denied and 179 modified (out of 5,645 requests mind you), you decide it is worth it to just ignore that process entirely?

 

[Bartholomew Roberts]

Emphasis mine. The NSA was scanning addresses. They weren't reading anybody's mail...unless the recipient or sender was tied to AQ.

I asked you in the other thread what your source was for this and you did not answer in your reply. Perhaps you could elaborate here?

 

[Bartholomew Roberts]

Also worth noting, the 932 approved FISA requests from 2001 represent a number that is three times all other federal wiretapping warrants combined for 2001. In 2004, the administration requested and received 1,758 warrants.