Thursday, December 22, 2005

Why They Didn't Simply Go to the FISA Court -- Because That Court Will Not Approve Illegal Surveillance

Marty Lederman

Many people have been asking why the Bush Administration didn't simply seek authorization from the FISA Court for its interceptions. After all, that court is exceedingly deferential to the Executive, granting well over 99% of all applications. I've suggested previouslythat the answer was likely that such applications could not be written in good faith, because there was no possible way for dragnets of this kind to satisfy the FISA standards, the most important of which are that there must be an identifiable Al-Qaeda-related target and that there be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."

In a very important story today, the Washington Post confirms this. It has nothing to do with the slowness, or cumbersomenss, of the FISA Court -- it's simply that the surveillance in question would not meet FISA standards. That is to say, the FISA court would not grant approval because these searches are unlawful.

Bush administration officials believe it is not possible, in a large-scale eavesdropping effort, to provide the kind of evidence the court requires to approve a warrant. Sources knowledgeable about the program said there is no way to secure a FISA warrant when the goal is to listen in on a vast array of communications in the hopes of finding something that sounds suspicious. Attorney General Alberto R. Gonzales said the White House had tried but failed to find a way.

One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.

"For FISA, they had to put down a written justification for the wiretap," said the official. "They couldn't dream one up."

The NSA program, and the technology on which it is based, makes it impossible to meet that criterion because the program is designed to intercept selected conversations in real time from among an enormous number relayed at any moment through satellites.


There is another possibility. They are using a technology that FISA couldn't keep up with. Its possible that the whatever technology TIA was going to use might have been adopted by the NSA. There's an interesting article at arstechnica suggesting that very possibity.

If in fact the TIA technology is involved in the Bush's SpyGate, it raises a question in my mind: how far do you scan into a communication (email, phone conversation, etc) before you're conducting surveillance? Halfway? Three quarters?

Marty - I have a request. Could you guys talk about the relevance of the Padilla case to the executive authority issues underlying the spying debate? (If the Supremes take the case, that is.)

I know the 4th Circuit approved Padilla's detention under Hamdi, which gave the President broad powers under Congress's 2001 Authorization for Use of Military Force. Considering all that's happened since Hamdi came down, do you think the SC could use Padilla to clip the President's wings a bit? Although the SC probably won't address the Yoo Doctrine directly, might they curtail the President's power under the Congressional resolution, forcing the Administration to rely directly on Yoo's constitutional theory for future actions? That, at least, might set the stage for a future examination of Yoo...

If you want to tap a terrorist, you go to the court - if you wanna tap a political opponent, you avoid the court.

When I was working at GE, a company salesman reported showing us a new technology. What it did was break down the linguistic word patterns of free speach and put them into categories, categories that could ten be sorted and filtered by oracle based software to look for patterns.

With such software it would be possible to take the free dialog from say 1 billion cell phone users, download it daily and look at it. The oracle software can then be used to filter and identify key words such as "Bomb" or any speech in Arabic. That filter could then identify a given cell phone user and tag him - monitoring all in-bound and out-bound calls. Since this form of wiretapping is done on basically every US Citizen, there must have been a grave concern amungst the NSA concerning the legality of their efforts

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