Eavesdropping

A great synopsis (and opinion) of the NSA eavesdropping issue was in the Washington Post yesterday. Suzanne Spaulding, who was a legal counsel with the CIA and the House and Senate Intelligence committee, makes a couple of arguments.

1. The Congressional "meetings" were a farce:

The administration says Congress was briefed "at least a dozen times" in the four years since the wiretap program started. Even assuming that these classified briefings accurately conveyed all relevant facts, it appears that they were limited to only eight of the 535 senators and representatives, under a process that effectively eliminates the possibility of any careful oversight...

I'm well aware of the limitations of these "gang of eight" sessions. They are provided only to the leadership of the House and Senate and of the intelligence committees, with no staff present. The eight are prohibited from saying anything about the briefing to anyone, including other intelligence panel members.

It is virtually impossible for individual members of Congress, particularly members of the minority party, to take any effective action if they have concerns about what they have heard in one of these briefings. It is not realistic to expect them, working alone, to sort through complex legal issues, conduct the kind of factual investigation required for true oversight and develop an appropriate legislative response...

The briefings reportedly provided on the National Security Agency (NSA) surveillance program reflect, instead, a "check the box" mentality -- allowing administration officials to claim that they had informed Congress without having really achieved the objectives of oversight.

2. FISA is adequate and necessary:

Instead of going to a judge on the secret court that was specifically established to authorize foreign intelligence surveillance inside the United States, we are told that an NSA shift supervisor was able to sign off on the warrantless surveillance of Americans. That's neither a check nor a balance. The primary duty of the NSA shift supervisor, who essentially works for the president, is to collect intelligence. The task of the judge is to ensure that the legal standards set out in the 1978 Foreign Intelligence Surveillance Act (FISA) have been met. Which one has stronger independence to say no, if no needs to be said?

FISA anticipates situations in which speed is essential. It allows the government to start eavesdropping without a court order and to keep it going for a maximum of three days. And while the FISA application process is often burdensome in routine cases, it can also move with remarkable speed when necessary, with applications written and approved in just a few hours.

...Perhaps the administration did not believe that these wiretaps would meet the FISA standard, which requires the government to have probable cause to believe that the target of the surveillance is an agent of a foreign power, which includes terrorists and spies. Yet, since 2001, FISA judges have reportedly reviewed more than 5,645 applications and rejected only four. The current judges were all hand-picked by the late Chief Justice William Rehnquist, who presumably felt that they had the right temperament and expertise to understand the national security imperatives as well as the need to protect civil liberties.

Nevertheless, if administration officials believed they faced a scenario in which the FISA standard could not be met, they could have sought to amend the statute, as they have done several times since the law's enactment in 1978. Several such amendments, for example, were contained in the 2001 Patriot Act.

3. There is no logical justification for bypassing FISA and that one ought to be given to us:

It's hard to imagine that the terrorists do not already assume that we try to listen to their cell phone conversations (after all, it is well known that FISA allows such wiretaps) or that we have technology to help us search through reams of signals. (Check out the Wikipedia definition of Echelon on the Internet.) So what do the terrorists learn from a general public discussion about the legal authority being relied upon to target their conversations? Presumably very little. What does the American public lose by not having the public discussion?

The article continues with legal analysis on why she believes that the law has been broken and none of the administration's arguments hold water. Read the whole thing,

But while the article only gives you probable responses, it is ultimately the responses of Congress and the Judiciary that matter. Congress has not once sent a bill to Bush that he did not like (the metric of dislike being vetoes). The judiciary is still its pugnacious self, stepping in on the Guantanamo Bay issue, but the Supreme Court was different then than it will be in the near future. Will the Roberts' court (with Alito or lapdog of Bush #3) do what its predecessors were always willing to do and will they see it in the same manner? Also, will the disclosure of this program embolden Congress to do its damn job? These are the real questions, stay tuned.

-Mr. Alec