Tuesday, December 20, 2005

FISA and Wiretapping Roundup Brain Dump

I've no experience with the FISA, though I am familiar with the standard criminal procedure of applying for a search warrant. If you want to educate yourself on the issues, the internet is the place to go. Here are the links to hit:

1) Professor Orin Kerr, who specializes in criminal law at George Washington University Law School has a must-read legal analysis of the issues on the Volokh Conspiracy. It's getting hits left and right right now, so I haven't gotten it to load yet. I can't even get a cache from Yahoo. From all indications, though, it's the definitive analysis to date, so hang in there.

UPDATE: Ha! Got it. I'm posting a quick-and-dirty digestion but it's NOT final nor should it be a substitution for reading Kerr's post, given my absolute unfamiliarity with the issue:

a) There are two exceptions to the Fourth Amendment that could apply: 1) The border search exception (You can search people coming in and out, and their computers, too. Hasn't been held to apply to raw data like a telephone call.) and 2) The arguable national security exception (No court has held that there is a national security exception to the Fourth Amendment, but they have specifically reserved that issue for future determination). Given the current understanding that what was being intercepted were telephone calls from people in the US to areas outside the country, it's at least arguably allowed by the Fourth Amendment under one of these two exceptions. But is it authorized by the Constitution or congressional authority?

b) 50 U.S.C. 1809 (part of the FISA) prohibits "electronic surveillance" except as authorized by statutory law:
§ 1809. Criminal sanctions
(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.

(b) Defense
It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.

50 U.S.C. 1802(a)(1), one exception, gives the President the right to authorize electronic surveillance solely directed at communications transmitted exclusively between or among foreign powers and certain non-spoken intelligence, if there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party. Kerr points out there are some issues as to whether groups such as Al Quaeda would qualify under this, but "I don't think we need to reach them. It's my understanding that the program monitored both citizens and non-citizens, so I don't see how the exception is applicable."

c) Next, we've got the Authorization of the Use of Force after September 11th. Kerr posts the excerpt:
(a) IN GENERAL.--That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The full link is below. The question: Is this actually a "statute that authorizes surveillance" such that it gives an exception to 50 U.S.C. 1809? The Hamdi v. Rumsfeld case in the Supreme Court discusses the legal effect of the AUF, but it's apparently unclear as to whether it extends to this kind if surveillance. Kerr's take is that it doesn't, because: a) wiretapping isn't exactly "force" as mentioned under the Authorization; b) while O'Connor's opinion in Hamdi indicates that acts "so fundamental and accepted an incident to war" fall within the authorization, it's ultimately a question of how broadly you define the acts here as to whether they are 'incident to war.' Spying in general would be, domestic surveillance of US citizens . . . not so much; and c) Hamdi disallowed indefinite detention of foreign combatants for the purposes of interrogation - circumventing civil liberties for the purposes of getting information. This wiretapping could be analogous.

d) The Constitution. Kerr provides this link to a supplemental brief filed in the FISA Court of Review, in which the government apparently makes the argument that Article II grants this authority to the President:
The President Has Inherent Authoritv to Conduct Warrantless Electronic Surveillance to Protect National Security from Foreign Threats.

In considering the constitutionality of the amended FISA, it is important to understand that FISA is not required by the Constitution. Rather, the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority. Both before and after the enactment of FISA, courts have recognized the President's inherent authority to conduct foreign intelligence surveillance. See, e.g., Butenko, 494 F.2d at 608 (grounding exception to warrant requirement in the President's Commander-in-chief and foreign-affairs powers; noting that the country's self-defense needs weigh on the side of reasonableness); Truong, 629 F.2d at 914 (citing the President's foreign affairs power as justifying an exception to the warrant requirement); cf. United States v. United States District Court (Keith), 407 U.S. 297, 308 (1972)(reserving the question whether the President's foreign-affairs powers justify exception from warrant requirement).

Kerr's response:
I have been unable to find any caselaw in support of this argument. Further, the argument has no support from the cases cited in the government's brief. In all three of those cases — Butenko, Truong, and Keith - the Courts were talking about whether the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment.

He goes on to cite relevant portions of the caselaw, discussing whether the President's Commander in Chief power should trigger a relaxed Fourth Amendment standard and balancing reasonableness in the context of Fourth Amendment law to determine whether the surveillance required a warrant. None implies Article II makes Congressional regulation of the President's powers completely inoperative.

So the upshot appears to be that while the Fourth Amendment may arguably not be violated by this type of wiretapping, it may be prohibited by law under the United States Code. Considering the FISA was specifically enacted as a check on Presidential wiretap powers in reaction to the Nixon Administration's surveillance of their opposition, this point of view seems to be the status quo, which Bush is seeking to have changed. The update below, containing an excerpt from Bush's press conference, supports this view.

2) Law Professor Daniel Solove, author of The Digital Person Technology And Privacy In The Information Age, has another must-read legal analysis. It's a little shorter than Kerr's, and it pulls up immediately for those who want the fast scoop.

3) Via Iowa Voice, the links to the text of the FISA act:
a) Who has authority to hear the applications for a Court Order.
b) The procedure for getting a Court Order, which the President alleges is too cumbersome.
c) The findings the Court has to make to support the Order.
d) How the information acquired per the Court Order can be used.
e) Special authorization for warrantless tapping for the first fifteen days of a war.

4) Additional links to the original text of other authority via Concurring Opinions:
a) The Authorization for the Use of Military Force of September 14, 2001.
b) Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (Dec. 19, 2005)
c) United States v. United States District Court, 407 U.S. 297 (1972) (aka the Keith case) (Fourth Amendment analysis of national security surveillance)
d) Hamdi v. Rumsfeld, 124 S. Ct. 981 (2004) (analysis of the scope of authority granted by Congress's Authorization to Use Military Force)
e) The original NY Times article that broke the story. (registration required, or hit Bugmenot for a backdoor password and username).

There's a whole section of links to other blog commentary as well, head over there for the punditry.

NOTE the interplay between the FISA and the text of 18 USC § 2511(f) which appears to also criminalizes wiretapping outside of specifically proscribed situations, and states:
(i) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—
(A) a court order directing such assistance signed by the authorizing judge, or
(B) a certification in writing by a person specified in section 2518 (7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,

USC Section 2518 has specific - and different - procedures for obtaining a court order, and also allows for an emergency tap but requires a court order within 48 hours rather than 72. Kerr addresses this issue in a post update:

UPDATE: A lawyer I know who works in this area e-mails in additional thoughts:
Of course you’re right that Keith and Katz reserved the question whether the President may engage in warrantless surveillance of foreign-based threats to the national security. While the Supreme Court has never addressed the issue, a number of federal appellate courts, some of which you cite at the end of your post, answered that question in the affirmative in the years immediately after Keith. See, e.g., United States v. Brown, 484 F.2d 418 (5th Cir. 1973); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc); United States v. Buck, 548 F.2d 871 (9th Cir. 1977); United States v. Truong, 629 F.2d 908 (4th Cir. 1980). But see Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975).

The interesting question is whether FISA somehow extinguishes this inherent Presidential power to conduct foreign-intelligence surveillance. There’s a respectable argument that it does. FISA repealed Title III’s reservation clause (18 USC 2511(3)), in which Congress expressly had forsworn any intent to regulate the collection of foreign intelligence. Given that repeal, we might be in Category Three from Justice Jackson’s Steel Seizure concurrence — "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject."

Another excerpt, this time from the comments to Kerr's post:
So, it seems to me that while 50 USC 1809, taken alone, allows one to look for statutory authorization anywhere, 18 USC 2511 limits where one can look for authorization to three places: chapters 119 and 121 of Title 18, and FISA.

Accordingly, I think 18 USC 2511 provides an additional barrier to holding that the 2001 AUMF provided statutory authorization as per 50 USC 1809. Specifically, one would have to hold that the general language of the AUMF somehow amended the more explicit language of 18 USC 2511. And I am pretty sure that violates several canons of statutory construction.

My opinion on the moral/legal issues: From my first read-through, it appears the President's legal position is questionable via Kerr's and Solove's excellent analysis. It appears he's pitting the executive powers versus the congressional powers in a constitutional battle.

The President's rationale? From the Press Conference transcripts via CNN:
QUESTION: . . . Why did you skip the basic safeguards of asking courts for permission for the intercepts?

BUSH: First of all, right after September the 11th, I knew we were fighting a different kind of war. And so I asked people in my administration to analyze how best for me and our government to do the job people expect us to do, which is to detect and prevent a possible attack. That's what the American people want.
We looked at the possible scenarios. And the people responsible for helping us protect and defend came forth with the current program, because it enables us to move faster and quicker, and that's important. We've got to be fast on our feet, quick to detect and prevent.
We use FISA still. You're referring to the FISA accord in your question. Of course we use FISAs.
But FISAs is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect.
And having suggested this idea, I then, obviously, went to the question, is it legal to do so? I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely.
As I mentioned in my remarks, the legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress.

So the AUF is valid, the FISA inapplicable, and 2511 is nowhere to be found. But to rely on the AUF is to imply that Congress has a say in the matter. If Congress can statutorily check the President's authorization of a wiretap, why would FISA - the more specific statute - be trumped by the broad generalization of the AUF? And if you're merely arguing separation of powers, why refer to the AUF at all? If in fact he's arguing straight constitutionality, and that Congressional checks on his power are invalid, then to choose Bush's interpretation, the Courts will have to specifically disavow any check by Congress on this specific Presidential power. The potential consequences are staggering. What's more, I don't think it should be morally defended. I heard an argument put forth on this morning's news that the paperwork involved in obtaining a Court Order under FISA, particularly the burden of proof that must be shown and the particularity which the information sought must be described, is simply too cumbersome for the fast-moving electronic age. Okay, fine. So go to Congress and request the burden of proof be lowered, or the paperwork needed streamlined. Don't simply say "aw, to hell with it."

Okay, regardless, so he's relying on the Authorization of Force and the Constitution and somehow calling FISA inapplicable as being for long-term use only in spite of the historical context of the act and the greater specificity to the situation at hand. Hmmm. And his excuses for doing so are vague: we need to act fast. Okay, fine. Well, I don't have a lot of federal spy experience. But if I had an officer in my office needing a warrant based on actual probable cause, we could generally whip one out in a few hours, and get a judge or magistrate in the middle of the night if we needed one. I presume the federal system is at least as fast.

Still too slow for you? Well, 1805 provides for an emergency procedure in which the AG can authorize an immediate tap with a hearing to be held within 72 hours afterward. How slow is "immediate?" Or is it this you object to:
(f) Emergency orders Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that— (1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and (2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists; he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.

(emphasis mine). Again, if you don't like the burden of proof, try to get it changed. Don't say "aw, to hell with it." I may be pro-prosecution, but these are my civil liberties you're fucking with.

NOTE: If I hadn't said this enough, I'm still digesting this issue. The complexities can cause brain-bleed, so head for those who are far more educated than I for the definitive posts. I also reserve the right to update this as my knowledge is enhanced. It's lots easier than a bunch of mini-posts saying: "No, wait. . . "

Cass Sustein has broken it all down, but reaches a different conclusion:
The legal questions raised by President Bush's wiretapping seem to me complex, not simple. Here is a rough guide: (1) Did the AUMF authorize his action? (2) If not, does the Constitution give the President inherent authority to do what he did? (3) If the answer to (1) or (2) is yes, does his action violate the Foreign Intelligence Surveillance Act (FISA)? (4) If the answer to (3) is yes, is FISA constitutional, or is it inconsistent with the President's inherent authority? (5) If the answer to (1) or (2) is yes, does the wiretapping nonetheless violate the Fourth Amendment?

He goes with "yes" on number one, interpreting the surveillance broadly as an incident of war. Two is questionable, but supported by lower court cases. Number three is generally felt to be yes, but then he notes number 4, in which he feels there's no prohibition against Bush's arguing the FISA is unconstitutional as a check on his power. Of course, there's nothing saying the Court can't find the other way, either. Finally, under 5, everyone appears to agree there's a good argument it doesn't violate the Fourth Amendment based on the exceptions Kerr noted.

My note to this analysis: the potential "out" provided by 1809 of the FISA prohibits wiretapping "except as provided by statute." If the AUF is a statute that would allow this kind of tap, presuming of course it's "incident to war" under #1, that would take care of #3. The issue will become whether the AUF is such a "statute" as per 1809. On the other hand, there's 2511 . . . in fairness, 2511 appears geared more toward the service provider's liability than the government agent's, but as it specifically states:
Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.
That seems to argue it applies, and as it doesn't specifically recognize the AUF, it may trump on this issue. The question then becomes whether 2511 is unconstitutional. That ties in to the constitutionality question of the post-Keith line of cases cited by the commenter to Kerr's post. Oookay. So I looked at United States v. Truong, the most recent of the cases. It's available on the outrageously expensive Westlaw database, so I can't link, but here's the deal: portions of the opinion seem to center on the FISA as a solution to the balance of power issues in the warrantless search arena. It states that the executive branch does have power to conduct warrantless searches and that these are not violations of the Fourth Amendment based on a national security exception:
We hold that the warrantless searches and surveillance did not violate the Fourth Amendment, that the espionage statutes were properly and constitutionally applied to this case, that the defendants were not denied compulsory process, and that the district court did not err in any of its evidentiary rulings. Relying on the concurrent sentence doctrine, the majority holds that we should not rule on defendants' claim that the theft-of-government-property statute does not apply to this case.
The court gave three rationales:
First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed, and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence initiatives, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations. . . .

More importantly, the executive possesses unparalleled expertise to make the decision whether to conduct foreign intelligence surveillance, whereas the judiciary is largely inexperienced in making the delicate and complex decisions that lie behind foreign intelligence surveillance. . . .

The President and his deputies are charged by the constitution with the conduct of the foreign policy of the United States in times of war and peace. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936). Just as the separation of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic security surveillance, 407 U.S. at 316-18, 92 S.Ct. at 2136-2137, so the separation of powers requires us to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign intelligence surveillance.

In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance. . . .
Clear enough? However, there's Footnote 4 right on that same page:
FN4. Since the surveillance was conducted in this case, Congress has enacted the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. s 1801 et seq. That statute requires that executive officials seek prior judicial approval for some foreign intelligence surveillance. The Act does not, however, transport the traditional Fourth Amendment warrant requirement unaltered into the foreign intelligence field. The statute does not contain a blanket warrant requirement; rather, it exempts certain categories of foreign intelligence surveillance. 50 U.S.C. s 1802. Nor does the statute require the executive to satisfy the usual standards for the issuance of a warrant; the executive need demonstrate only probable cause that the target is a foreign power or a foreign agent and, in the case of United States citizens and resident aliens, that the government is not clearly erroneous in believing that the information sought is the desired foreign intelligence information and that the information cannot be reasonably obtained by normal methods. 50 U.S.C. s 1805, s 1804(a)(7)(E). Finally, the statute empowers the Chief Justice to designate seven judges to hear the requests for foreign intelligence warrants and thus creates a special group of judges who will develop expertise in this arcane area. 50 U.S.C. s 1803.

While the Act suggests that it is possible for the executive branch to conduct at least some types of foreign intelligence surveillance while being subject to a warrant requirement, the complexity of the statute also suggests that the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President. The elaborate structure of the statute demonstrates that the political branches need great flexibility to reach the compromises and formulate the standards which will govern foreign intelligence surveillance. Thus, the Act teaches that it would be unwise for the judiciary, inexpert in foreign intelligence, to attempt to enunciate an equally elaborate structure for core foreign intelligence surveillance under the guise of a constitutional decision. Such an attempt would be particularly ill-advised because it would not be easily subject to adjustment as the political branches gain experience in working with a warrant requirement in the foreign intelligence area.

Is it just me, or does this pretty much call the FISA the answer to the whole issue? If that's the case, it will be interesting to see the President use this line of cases to argue the inapplicability of the FISA.

(SIDE NOTE: The Truong case goes on to discuss the admission of the evidence against the defendant in Fourth Amendment terms. The exclusionary rule: if it's not in violation of the Fourth Amendment - or other appropriate legal protections - it can come into a criminal charge against the subject. But then there's the other issue: even if it comes into court, there are federal statutes criminally prohibiting wiretapping. Given everyone seems to be decided that the Fourth Amendment likely provides an exception, if the FISA or 2511 criminally prohibits the tapping itself could there theoretically be a case where the evidence is good but the agent is criminally charged with illegally obtaining it? Yikes.)

Regardless, it appears that there is some support for a constitutional power, but even the court cases supporting it recognize Congress' ability to impose some reasonable limitations. If Bush intends to take the extremist route, he's going to have to argue all the statutes - the AUF, the FISA, and 2511, are all unconstitutional inroads on his power. His alternative is to argue that the AUF is an exception to the FISA and 2511 is either unconstitutional or specifically abrogated by the FISA and AUF. The second route is more probable, and it looks like that's where he's going. But will the publicity on this be worth it? Again, there's only one reason I can see to circumvent the FISA, and given the emergency provisions it has little to do with time. It's more a burden of proof thing. Do we want the wiretaps to be allowed based on a semi-articulable suspicion, or do we want probable cause?


Of course, for those who would think this is all about Bush, I offer this very apt quote from TalkLeft:

Let me ask why every smart blogger out there and every pundit on TV is talking about wiretapping when the obvious problem is that the U.S. government is now monitoring the entire U.S. Internet a la Echelon or Raptor.

Wasn't it called Carnivore at one time? Is it different now?

But in my opinion, there is a small distinction. This President is actively defending the idea as a good thing to which we should all subscribe. The implicit message: why wouldn't we want to know what Al Quaeda operatives are up to? Time is of the essence, and if we don't circumvent FISA, valuable time will be lost. It is absolutely necessary to fight the war on terror that we have warrantless wiretaps conducted for an indefinite period of time, with no need whatsoever for the type of evidence to connect the people being tapped with any foreign power that would be needed by a FISA court order.

If you think I'm overstating it - well, why not get a court order under FISA? With emergency procedures, you have instantaneous taps and explanations afterward. All you need is cause - evidence linking the person being tapped to the foreign power. Then you can tap away for a couple of months without hassle. Want to extend the time? Fine, just bring in some further showing. Unless there's something I'm missing, the only rationale is to circumvent the evidentiary requirement. If that's the case, then what they're really asking us to do is allow them to tap people that they don't even have probable cause are working with foreign powers. That's me and you, guys. It may be that the government has been doing this for years, but it doesn't make it right and it doesn't make it defensible and I resent being told to go away and play quietly while the government decides who it will and will not spy on, without any evidence necessary whatsoever. That's simply not acceptable.

Even Bush's summary "we need it 'cause we need it" aside, look at the rationales in Truong: 1) The government's need for flexibility, 2) its practical experience, and 3) its constitutional competence. Well, the FISA is pretty damn flexible, as I've repeatedly stated. Government experience is granted, but FISA created a special "secret" court that presumably has been honing it's own expertise since 1978. Despite my dislike of secret tribunals, this at least provides some check, some guarantee that they're not tapping my phone just for the hell of it. The goverment's constitutional competence also exists, but no one has ever held that it's utterly separate and unanswerable to congress or the courts. And it really doesn't stop there. How tenuous must the connection be between government action and a war for the administration to argue it's authorized under the AUF? To keep with the phone example - what about the phones of people who call people who call suspected Al Quaeda operatives? What about the people who call them? What about anyone who calls anyone, just in case? Technology is not far off from being able to monitor everything and sort for content, if it can't already. I hope this particular scandal curtails the use of raptor, carnivore, or whatever other spy equipment is used to monitor private calls without sufficient cause to support a court order, regardless of the administration using them. I'm sure Clinton would've defended any programs he used as well, but to twist around overused cliches, while the pot may be calling the kettle black, two wrongs definitely do not equal a right to unlimited power for warrantless wiretaps.

UPDATE #677859
Kevin Drum hones in on a possible explanation:
President Bush, answering questions at Monday's press conference: "We use FISA still....But FISA is for long-term monitoring....There is a difference between detecting so we can prevent, and monitoring. And it's important to know the distinction between the two....We used the [FISA] process to monitor. But also....we've got to be able to detect and prevent."

Attorney General Alberto Gonzales, telling reporters why Bush didn't simply ask Congress to pass a law making the program clearly legal: "We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be — that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program."

New York Times editor Bill Keller, explaining why the Times finally published its story last week after holding it back for over a year: "In the course of subsequent reporting we satisfied ourselves that we could write about this program — withholding a number of technical details — in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record."

None of these quotes makes sense if the NSA program involved nothing more than an expansion of ordinary taps of specific individuals. After all, the FISA court would have approved taps of domestic-to-international calls as quickly and easily as they do with normal domestic wiretaps. What's more, Congress wouldn't have had any objection to supporting a routine program expansion; George Bush wouldn't have explained it with gobbledegook about the difference between monitoring and detecting; Jay Rockefeller wouldn't have been reminded of TIA; and the Times wouldn't have had any issues over divulging sensitive technology.

It seems clear that there's something involved here that goes far beyond ordinary wiretaps, regardless of the technology used. Perhaps some kind of massive data mining, which makes it impossible to get individual warrants? Stay tuned.
(emphasis mine).

He goes on to differentiate this from Echelon:
The problem is that Echelon has been around for a long time and no one has ever complained about it before — so whatever this new program is, it's something more than vanilla Echelon. What's more, it's something disturbing enough that a few weeks after 9/11 the administration apparently felt that even Republicans in Congress wouldn't approve of it. What kind of program is so intrusive that even Republicans, even with 9/11 still freshly in mind, wouldn't have supported it?

An interesting theory. More will, I'm sure, follow.

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