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UPDATED: In 28 years the FISA Court has never turned down a surveillance request

Update to original post: Orin Kerr has typed a voluminous and nuanced Legal Analysis of the NSA Domestic Surveillance Program (he covers the Fourth Amendment, FISA, and Article II).  Given the question I raised yesterday, I'm particularly interested in the brief the Bush administration filed in the FISA Court, "  The President Has Inherent Authoritv to Conduct Warrantless Electronic Surveillance to Protect National Security from Foreign Threats." Kerr's take? "So the argument, as I understand it, is that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power, a judgment made, I suppose, by the President himself," Kerr writes. "I have been unable to find any caselaw in support of this argument..." Don't take that quote as indicative of any political slam by Kerr, however. I like how this headline by Anthony of Three Years of Hell to Become the Devil compliments Kerr's post: "When Blogs are Better than Law Reviews..."

Original post: 12.19.05, 12:29 p.m. Time out! Everyone stop tearing their hair for a minute -- and the rest of you, stop shredding the Constitution. Let's examine the facts: According to my favorite consumer-friendly source on the Foreign Intelligence Surveillance Act, the 1978 law developed a quick, easy, sure-fire system of approval for wiretaps:

"The act established the Foreign Intelligence Surveillance Court, known as the FISA Court, to hear the government's case and approve both surveillance and information-sharing requests in secret. Under the law, the chief justice of the Supreme Court is required to appoint seven District Court judges to the FISA Court, which meets once a week in a secure, soundproof room in the Justice Department to hear the government's requests.

"Since 1978, the FISA Court has never rejected a surveillance request. Because of this, some critics have argued that the court merely serves as a rubber stamp for the government. "

That last fact has been missing from many of the news reports I've read. Which leads to my question: Why didn't the Bush administration follow the law already on the books? After all, the Foreign Intelligence Surveillance Act was pretty much guaranteed to work in the president's favor if spying on Americans to maybe gain foreign intelligence was his goal. (Emphasis on maybe:  hey, only suspicion is required, not proof.)

Why, then, did Mr. Bush sign 30 permissions to spy upon Americans, the very behavior FISA was enacted to avoid? While I was alive at the time the 1978 act was passed, I was barely politically sentient; Fortunately the Frontline team puts FISA well into historical context:

"[FISA] was enacted as a response to public outrage over the extent of domestic spying during the Kennedy, Johnson and Nixon administrations. While recognizing that intelligence gathering is a legitimate function in the national security interest, Congress passed the law to limit the government's power to break into homes and spy on U.S. citizens."

Over on Blackprof, Spencer Overton provides terrific background in the writings of U.S. Court of Appeals Judge Damon J. Keith, for whom Overton clerked.  Judge Keith wrote an opinion upheld by the Supreme Court in U.S. v. Sinclair, 321 F. Supp. 1074, a criminal trial for members of the White Panther Party who were charged with bombing the CIA offices in Ann Arbor, Michigan.  Overton writes, "The federal government tapped the phone lines of at least one defendant without obtaining a warrant.  Judge Keith decided that President Richard Nixon and Attorney General John Mitchell could not engage in warrantless wiretap surveillance."

Keith's best line? " ...  if the President is given power to delegate who shall conduct wiretaps, the question arises whether there is any limit on this power  ..."

I also find myself nodding as I read Glenn Greenwald, who writes, "Despite the uproar this weekend among right-wing bloggers who were insisting (and are still insisting) that the Administration's warrantless eavesdropping on American citizens complied with FISA, there is actually no real controversy about this because no reasonable ground exists for disputing that the Administration violated that law -- as even the Administration itself is now acknowledging."

I don't know which is more depressing -- reading Greenwald's excerpts of Secretary of State Condi Rice and Tim Russert on Meet The Press, or reading what Norm Pattis and his commenters are reading. And quoting.

What's next? Ann Althouse thinks the issue is now most appropriately between Congress and the president -- an irony she duly notes, since some Democrats in Congress knew of the administration's decision to spy on Americans without a warrant and didn't do a thing. Althouse writes:

"We have a developing conflict between Congress and the Presidency. Congress can decide if it stands in opposition to incepting these phone calls without a warrant. There is no need for courts to become involved in any asserted separation of powers problem until Congress takes a position. The legal question whether separation of powers has been violated at this point is complicated and interesting, but there is no reason for any court to answer it, when Congress is able to go on record about whether it wants the President to be able to do these things or not.

"So, I look forward to the hearings, which I hope will cover the question of who blew the secret and why."

I'm going to give the final word to First Amendment specialist and attorney Martin Garbus, who wrote an article on this topic for the Huffington Post called "Nixon Loses, Bush Wins." After an authoritative review of FISA's history, Garbus writes:

"What is really happening is that the Bush administration is seeking this moment to reverse the Nixon case and gather unto itself an unrestricted and unreviewable right to engage in domestic spying. The Supreme Court that decided United States v. U.S. District Court included Justices Douglas, Brennan, Marshall, Stewart and Powell. The Court that hears the Bush challenge will have Roberts, Scalia, Thomas, Alito and Kennedy, all of whom have shown in their previous cases great deference to the expansion of Presidential powers."

Hmmm. Now I think I know a few more questions I'd like to see the Senate Judiciary Committee ask Sam Alito on Jan. 9.

Posted by Laurel Newby on December 20, 2005 at 09:40 AM | Permalink | Comments (4) | TrackBack (0)

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