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 thenattorney general Janet Reno outlined the departments 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 Courts mandated changes. The Court approved the application but insisted that the modifications be made according to the courts 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. Thats 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.