03 March 2006

The Surveillance debate

I don't like writing about a topic until I know as much about it as possible. But sometimes you can only grasp so much, and then you realize that the best you can do is to put together an analysis this is minimally coherent and clear.

It is like when WH Auden was asked, "How do you know a poem is finished?" The wry author said, "Young man, a poem is never finished - it is simply abandoned."

That's where I'm at with the surveillance issue.

There is so much legal jargon, constitional law precedents and case histories that it is easy to get lost in all the minutae.

It is interesting to note that without looking at the subject, my initial feeling (through MSM slanted rhetoric ) is that the Bush administration has the right to just go out and get surveillance authority whenever it feels like it. The MSM paints a picture that little old Norwegian grandmothers in Minnesota are, at this moment, being surveilled by a Pentagon SuperComputer.

FISA warrants are obtained when the government has reason to believe that surveillance is warranted. It is not an adversarial court, it is constructed more like a grand jury. The government presents its case to the court and then the court decides whether a surveillance is granted. The FISA Court was created in 1978 and required that any president go through it in acquiring a warrant for surveillance in top-secret foreign intelligence cases. Any disputed cases would be adjudicated by the FISA Court of Review - in Byron York's words a "sort of super-secret appeals court."

FISA warrants are rarely denied. Through the end of 2004 -18,761 warrants were granted. Only 5 were rejected.

As Byron York reported in the February 27 edition of National Review, a high-level meeting between various government departments - including the Justice Department, US Attorney General, FBI and David Addington [VP Cheney's top lawyer] - back in September of 2002 was assembled to discuss one case; whose details remain so classified that they are known by only a few people. The decision was named In re: Sealed Case and has become one of the hottest issues in Washington today in the fight over what the president calls "terrorist surveillace" and what the administrations' critics call "domestic spying."

For a detailed review of how the court is structured and how its case precedents formed it into its present-day existence, go here.

York writes that -
The conflict began with the passage of the Patriot Act in October 2001. The act tore down the “wall” that had arisen in the Justice Department that blocked intelligence officials and criminal investigators from working together and sharing information. That wall had been cemented by a set of internal department guidelines written in 1995, in which then–attorney general Janet Reno outlined the department’s constricted surveillance procedures.
The Patriot Act was designed to fix that problem. But a month after the act was passed, when the Justice Department submitted surveillance requests to the FISA Court under the new, looser standards passed by Congress, the FISA Court in effect rejected the Patriot Act, and instead reaffirmed the old 1995 Clinton-era standard.
A standoff ensued. In early 2002, the Justice Department adopted new surveillance procedures based on the Patriot Act. In March 2002, the department informed the FISA Court that it would use those new standards in surveillance applications. In May, the FISA Court said, in effect, not so fast, and ordered modifications in the procedures. Among other things, the FISA Court ordered that “law enforcement officials shall not make recommendations to intelligence officials concerning the initiation, operation, continuation or expansion of FISA searches or surveillances” — a reasonable facsimile of the old wall. The FISA Court also ordered that the Justice Department include certain staffers in all surveillance debates, an order that quickly became known in the Justice Department as the “chaperone requirement.”
The Justice Department resisted, and in July 2002 filed a surveillance application — the details are still a secret — using its new procedures, without the FISA Court’s mandated changes. The Court approved the application but insisted that the modifications be made according to the court’s dictates. And then, in August, the FISA Court took the extraordinary step of making its decision public, accusing the Justice Department of habitually misrepresenting evidence and misleading the court. That’s when the department decided to take the matter to the Court of Review, leading to the September 2002 session in that secure room in department headquarters.

So soon after the court of review met to discuss the issue because they wanted surveillance applications to conform to the Reno-Clinton restrictions. The government said, "Hold on - you've got to take the Patriot Act amendments into account." The Court of Review sided with the government. The Court said that the FISA court had attempted to unilaterally impose old 1995 rules. The Court of Review went on further to state that the FISA court may have exceeded its constitutional boundaries. It reaffirmed that the President has the "inherent authority" to conduct needed surveillance without obtaining a warrant.

The ACLU stepped in later and submitted a brief in favor of the FISA court's ruling. But it did little good - the US Supreme court refused to address the case.

So there you have it. The Supreme Court and the Court of Review state that the President has the Constitutional authority to conduct surveillance when he wants. Period.

It is amazing the William Jefferson Clinton was never questioned about his surveillance operations. Oh yes, that's right - he was only using wiretaps in order to get laid. Terrorists operated with impunity under the Clinton regime.

Silly me - the media is only concerned with surveillance because a Conservative is in the White House.


Anonymous said...

a conservative?
look at the budget.
look at the falsifying to go to war.the secresy to discover about the energy issues.
the secresy to spy on ALL americans
real conservative there.the taking of freedoms was the last straw for this exrepublican.i will never vote republican again.they have proven their loyalty to greed and corruption

Rue St. Michel said...

Yes ~ Bush is a conservative. And based on your comments and literacy, I doubt you've ever voted Republican in your life.

There is much that conservatives don't like about his politics - the vast domestic overspending, his kneejerk embracing of race and gender preferences, prescription drug entitlements, and amnesty for illegals....

But Bush didn't 'falsify' anything to get us into Afghanistan and Iraq. You had Ted Kennedy, Hillary Clinton and John Kerry all standing in the Senate squawking and preening in front of the cameras - and making the case that we "had" to go to war with Iraq.

All Western countries said that they had intel that indicated that there were WMDs - Bush even gave Saddam Hussein an almost 18 months head start before boots hit the ground in Iraq. It has now been shown that prior to our arrival, Russian Special Forces (spetsnaz) helped him move the WMDs over to Syria. See here for the story.

Fred Barnes new book Rebel-in-Chief discusses conservatives' disappointment with Bush's policies. But Barnes claimed a new moniker for Bush - "strong government conservative." He writes, "Bush and his aides have embraced an insight lost on some other conservatives: What matters is now how big government is but what it does ... Bush realized that a conservative president can use government policies to expand personal freedom, a conservative virtue. His reforms to create voluntary investment accounts in Social Security and health savings accounts in Medicare aim to do just that." (see National Review article by John O'Sullivan Bush's New Conservatism" for more.) Do I agree with Barnes? No - not entirely. The chinks in Bush's conservativism are starting to show. But I'm not going to just spout off with nonsense just because I don't like a person's political bend.

I don't agree with the liberal drift of this "ideologically inert administration" but to shout out Cindy Sheehan slogans as a criticism of Bush and his policies is disingenuous and facile.

Crimefile said...

It's a very rare day when any judge won't sign a search warrant put in front of him or her!
The Fourth Amendment is long dead in America.

The Liberals would never complain about a search warrant being issued to go after a peaceful gun collector!

Between the failed Drug War and the RICO government asset grab-fest we've lost any privacy rights we thought we had.

I ask what’s the big deal now? Where were the Liberals long ago?

Anonymous said...

well said rue

Anonymous said...

The fourth amendment exists in name only.

Anonymous said...

Last night on CNBC.....prior to the alleged "bouncer suspected of murder" in NYC piece....they covered our Bush in D.C.

The story was that in response to the leaks about the continued spying without warrants that they agreed to stop but allegedly have not, and the finger pointing about CIA prisons, the administration may consider going after the PRESS for reporting it in the future! There is an espionage law that would fit the 'free press', did someone say FREE?.... So, if the media reports on illegal spying that may be factual and newsworthy, they may be dragged off. What period of time does this remind you of?

Rue St. Michel said...

I hear what you're saying. If the administration went after the press with such guerrilla tactics - arrests and censorship - it'd be a slap in the face to our 1st amendment freedoms.

The press walks a razors' edge though. They slant the news to fit their agendas but then deny that they are biased or even have an agenda. Talk about pissing in your face and telling you it is raining!

Rolling out the CIA prison story was an outrage - heads at the NYTimes should roll over that one. Anything that gives "comfort" to the enemy - or diminishes the safety of our troops shouldn't be allowed to be published. Abu Graib was more of a frat prank and shouldn't have had the coverage it got.

The press wants to publish any little thing they can to skewer this administration but they can't have it both ways: The president was duly elected and we have The Constitution.

You must have one with the other.

One last point: I remember very well seeing Kissinger at the Paris Accords. When the VC delegate was asked what he wanted, he demanded a total US withdrawl from Viet Nam. Kissinger said that they would win by outlasting the VC. The VC delegate simply smiled and slid the NYTimes and Washington post over the table towards Kissinger.
"You are losing the war in the media. We are defeating you through your own media."

That is how important the news can be.