Thursday, January 18, 2007


NSA Wiretaps Brought Under Law (Updated Again)

Great news: The NSA's domestic spying program is finally being brought within the bounds of the law, more than a year after it was revealed.

The Justice Department has decided to let the Foreign Intelligence Surveillance Court -- the traditional, and legal, monitor of government wiretap programs -- start examining the spy efforts. Before, the Bush Administration said no such review was needed -- a legal reading that even former NSA chiefs said was wildly off-base.

The court has already "approved one request for monitoring the communications of a person believed to be linked to al-Qaida or an associated terror group," the AP says.

It's a huge (and welcome) turnaround for an administration that said previously that the president had the power to order almost anything in the name of fighting terror. (And "still believes that," according to flack-in-chief Tony Snow.) So why the change? Snow mumbled something about the court's increased "agility." But you can bet your ass the new Congress had a whole lot to do with it.

UPDATE 3:28 PM: Shocker. Attorney General Alberto Gonzales, in his letter describing the rule change, appears to be lying through his teeth shading the truth, saying that the administration has been trying to put the wiretaps under the court's authority since the spring of 2005. If that's the case, Glenn Greenwald asks, "why didn't they say so when the controversy arose?"

UPDATE 3:35 PM: Patrick Keefe, author of Chatter: Dispatches from the Secret World of Global Eavesdropping, is taking a wait-and-see approach to Gonzales's announcement. "It's just not clear what it means," he tells Defense Tech.

There have already been proposals for the FISA court to grant blanket retroactive approval to the program, and if that's what this is, then it's not much of a concession from the administration. If, on the other hand, it's actually case-by-case approval by FISA judges we're talking about, I'm not sure how that's going to square with the reported scope of the program. The ostensible grounds for circumventing the FISA in the first place were that this program didn't fit in the FISA framework. And given that it reportedly does a kind of mile-wide-and-inch-deep network analysis that is antithetical to the personalized, legally sanctioned surveillance contemplated by the FISA, I'm not sure how you can make the two procedures fit. Unless what they're really saying here is that they're abandoning the program altogether, and returning to one-target-at-a-time, retail-rather-than-wholesale surveillance. Which somehow I doubt.

UPDATE 3:35 PM: "It sounds to me like this court just re-wrote the law and made a second category of wiretaps (one that is easier to get but only targeted at overseas communications)," writes Ryan Singel.

He also notes that Gonzales's announcement comes just a day before he is supposed to testify before the Senate Judiciary Committee. "Pretty sneaky, sis," Ryan says.

UPDATE 4:51 PM: "Another question raised by Gonzales’ letter — indeed, in the first sentence — is which FISC judge issued this order?" surveillance scoopmaster Shane Harris tells Defense Tech.

The letter states that “a judge” issued the order. Does Gonzales mean the court’s presiding (or chief) judge, Colleen Kollar-Kotelly? Presumably he would have said so if that were the case. Kottelly has been briefed on the NSA program previously. She reportedly has been concerned that information obtained without warrants under the NSA program could taint other warrant applications before the court.

The FISC is made up of 11 sitting federal judges hailing from judicial districts across the country. Did the administration select a particular judge to approach for this order? Here’s the breakdown on how many judges were appointed by a particular president:

Jimmy Carter: 1

Ronald Reagan: 4

George H.W. Bush: 3

Bill Clinton: 2

George W. Bush: 1

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