I have argued many times that FISA never intended to infringe on the right of the military to snoop on our enemies. No one in their right mind would require a court warrant in WW II before we could acquire the Nazi’s Enigma device or the Japanese secret codes and use them to learn what we needed to defend this country and win the war. But it seems that the Wall between intel and law enforcement that grew from an overzealous fear of Presidential abuse of power apparently did encroatch on the Commander-in-Chief’s role as head of the military. I can understand why you would not want intelligence guiding our law enforcement processes and resources here, but conversely you don’t want to get permission via the DoJ or FBI to eavesdrop and/or on Al Qaeda (which, strictly speaking, includes predators overflights and monitoring). But apparently, according the Talking Points the NSA developed for Congress on the Terrorist Surveillance Program, there was policy “mission creep” as more and more barriers were deemed needed between law enforcement and intel. To the point where warrants were supposedly needed to SPY on our enemies! Check this out:

Today, in part because of technological changes over the last 30 years, the FISA frequently requires judicial authority to collect communications of non-US persons outside the United States. This clogs the FISA process with applications for court orders that have little to do with protecting US privacy rights.

The FISA should be ammended so that it is technology neutral. This would return it to its original purpose of focusing FISA privacy protections on Americans in the United States. It would greatly improve the FISA process and relieve the massive amounts of resources currently being consumed.

Emphasis mine. This adds a whole new twist to the unnecessary wall that legal theorists erected because government lawyers tend to use simple minded solutions to complex problems. Instead of dealing with tough cases, they eliminate them by disallowing them. In the technology export world I work in, this means treating an ethernet cable as a munitions under export control because it is used to connect the computers flying satellites. Instead of having to understand what is general purpose technology (like a CAT-5 cable) verses something we need to protect so it cannot be used against us, the government said anything used to operate satellites is controlled technology. Simple for them, ridiculous in practice.

What I am seeing here is similar. Clearly worried about incidental contacts (something the Church Committee acknowledged in the late 70’s happens and is NOT a problem) it seems there were some secret policies that were overly cautious and restricted spying on people overseas. Probably if there was a chance they might come in contact with a US person or someone in the US. Back in the 80’s, before the internet and cell phones, his was probably not considered overly restrictive. It is now of course. Any legal eagles claiming the generals needs to get a warrant to spy on our enemies? Because that seems to be the linchpin issue here. An outdated, overly cautious policy that allowed 9-11 highjackers to talk to their masters overseas without any ability of the intel community to alert law enforcement.

This ridiculous policy creep is probably why Specter and others are working to authorize what Bush is doing and modernize FISA. Tom Maguire reports on Specter’s legislation being passed out of committee – which allows Bush to continue as is and get a FIS Court review, which will concur as they did in 2002.