Here’s the story

Editors, Lansing State Journal

Gentlemen,

Re: What’s the story?, today’s LSJ editorial on NSA wiretaps.

It is precisely because I do

Recall the administration argues the president has his own inherent surveillance authority as commander-in-chief. [and, I] Recall the administration argues Congress authorized surveillance with its post-9/11 resolution to pursue global terrorism.

– that I think you’ve missed the point.

We know that the Senate (and the House, for that matter) Intelligence Committee had been briefed on expanded NSA surveillance as early as October 2001.

That these briefings included arguments about the administration’s legal reasoning is known because Nancy Pelosi asked in writing for clarification. Even without that, it is impossible to imagine that no Congressperson asked about it in numerous briefings.

In other words,

…the type of explicit congressional authorization the Bush administration now says it has.

– is the same authorization the administration said it had then. That would be the force authorization, not some provision of FISA.

The context of the administration contention that

the existing rules were being followed and were working

– included, for the Senate Intelligence Committee, knowledge that FISA warrants were being bypassed.

What the administration was saying, in urging rejection of DeWine’s amendment, was 1) We do not want a public announcement authorizing top-secret operations we are already undertaking and; 2) We’ve already told you why this is legal under Article II of the Constitution, and we’re most definitely not interested in establishing a precedent that Congress can override Article II by conceding that you need to amend the law. Our argument is that not only do you not have to do that: You can’t.

Therefore, to use the rejection of DeWine’s proposal as a case against the administration’s interpretation of the law is a circular argument. Ironically, it seems likely that knowledge of the wiretaps is what motivated DeWine’s proposal.

Here is an excerpt from the Attorney General’s recent speech on the matter. This is certainly very similar to what Congress would have heard.

[A]s long as electronic communications have existed, the United States has conducted surveillance of those communications during wartime—all without judicial warrant. In the Civil War, for example, telegraph wiretapping was common, and provided important intelligence for both sides. In World War I, President Wilson ordered the interception of all cable communications between the United States and Europe; he inferred the authority to do so from the Constitution and from a general congressional authorization to use military force that did not mention anything about such surveillance. So too in World War II; the day after the attack on Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the United States. The terrorist surveillance program, of course, is far more focused, since it involves only the interception of international communications that are linked to al Qaeda or its allies.

…The FISA Court of Review, the special court of appeals charged with hearing appeals of decisions by the FISA court, stated in 2002 that, quote, “[w]e take for granted that the President does have that [inherent] authority” and, “assuming that is so, FISA could not encroach on the President’s constitutional power.” We do not have to decide whether, when we are at war and there is a vital need for the terrorist surveillance program, FISA unconstitutionally encroaches – or places an unconstitutional constraint upon – the President’s Article II powers. We can avoid that tough question because Congress gave the President the Force Resolution, and that statute removes any possible tension between what Congress said in 1978 in FISA and the President’s constitutional authority today.

When you raise the “72 hour” question;

And recall what the FISA rules do allow: A court that has almost never denied government requests for surveillance warrants. And a court review that can occur up to 72 hours after the fact.

Yet the Justice Department now argues such protections impinge on “critical speed and agility” in surveillance?

– you ignore not only that the Justice Department always did argue that, but also that it contended that Article II, as FISA judges acknowledge, trumps FISA.

Attorney General Gonzales:

Some have pointed to the provision in FISA that allows for so-called “emergency authorizations” of surveillance for 72 hours without a court order. There’s a serious misconception about these emergency authorizations. People should know that we do not approve emergency authorizations without knowing that we will receive court approval within 72 hours. FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted. That review process can take precious time.

Thus, to initiate surveillance under a FISA emergency authorization, it is not enough to rely on the best judgment of our intelligence officers alone. Those intelligence officers would have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied, then lawyers in the Department of Justice would have to be similarly satisfied, and finally as Attorney General, I would have to be satisfied that the search meets the requirements of FISA. And we would have to be prepared to follow up with a full FISA application within the 72 hours.

A typical FISA application involves a substantial process in its own right: The work of several lawyers; the preparation of a legal brief and supporting declarations; the approval of a Cabinet-level officer; a certification from the National Security Adviser, the Director of the FBI, or another designated Senate-confirmed officer; and, finally, of course, the approval of an Article III judge.

This casts a different light on –

A court that has almost never denied government requests for surveillance warrants.

The question would be why so many get rejected given the preparation that goes into them.

There are legal issues in dispute, with considered arguments on both sides. Whether a mechanism exists that allows the White House, in some cases, to ignore FISA warrants is a fair question. “What’s the story?” isn’t.