Sep 29 2006
Myth Busting on NSA Surveillance
I guess we need to inform the country about some of the realities of the NSA Terrorist Surveillance Program (TSP) and what is possible and not possible to resolve all the concerns for privacy protections. I say this because the house just passed a good bill on the NSA TSP. This topic is especially important in light of some leftwing prosecutorial abuse against a Rep Candidate for AG in NY who has had her phone monitored for discussing ways to catch her cheating husband publicized – we can be voyuers against Reps but it is unconstitutional to monitor terrorists contacting possible suicide troops here in the US. So let’s bust some myths on this issue and hope enough people read this and pass on the information to inform our choices this fall.
Myth 1: NSA Can Get Warrant From FISA Court – this is a common refrain from the Democrats that the simple answer is for NSA to get warrants from FISA. Well, ignoring the fact the NSA has no standing with the courts to get warrants, and therefore must go through the FBI and DoJ, and ignoring the fact that the FBI and DoJ cannot legally insert themselves into the military and Presidential chain of command to confirm orders, and neither can the courts – the fact is the FISA Court will not allow the NSA to request warrants based on its intel. It will not allow the FBI or DoJ to request warrants based solely on NSA intel. That was decided way back when the TSP program went into effect. So please, let’s get off the idea the NSA can get a warrant for its surveillance – it cannot. And the FISA Court will not issue one based on NSA intercepts – the FBI needs to find collaborative evidence for a FISA warrant. This makes sense actually. Without a FISA warrant the NSA can only listen in on communications that are with known terrorists overseas. No other communications can be monitored. With a FISA warrant all communications can be monitored.
Myth 2: NSA Bypassed FISA – This too is wrong. Completely backwards actually. Prior to 9-11 the NSA, if it intercepted a communications between an overseas target of surveillance and someone in the US, would destroy any information on a possible lead in the US. This was out of tradition – not a legal requirement. The military and intelligence are just as valid sources for tips on illegal behavior as anyone. They can report a theft, so they should be able to report possible infiltration of our homeland by an enemy. But the tradition evolved over time, without consideration of how dangerous this tradition was. This was noticed by the Church Committee in the 1970’s, whose effort led to FISA. After 9-11 President Bush order the NSA to pass their leads to the FBI for investigation and application to FISA if the conditions warranted. The reality is the TSP – for the first time – had NSA leads being passed to FISA.
Myth 3: The TSP Conveys Unbridled Presidential Power – the silliest of them all. The TSP triggers on events – not Presidential directives. The NSA monitors terrorists overseas. They intercept a communication with someone in the US and the process triggers. The only way a President could initiate this is to get someone in the US to call a terrorist somehow. The communication is vetted by analysts and lawyers at the NSA. If concerned they pass it to the FBI which further vets the lead. If concerned they request warrants from the FISA Court which further vets the lead. There is no Presidential influence in the process at all. All Bush did was order the communication take place between NSA and the FBI.
One thing Dems are good at is being irrationally shrill. But what we need from them is some sort of reasonable case on how the President could abuse this program. And we get nothing. In fact, the bill mentioned above further safe guards misuse by bringing the program under broader Congressional and Judicial review than it has received. In fact, the Bill says the President should only use this program when our country faces threats
However, the president could act without court approval if he certifies that the country is “in the wake of a terrorist attack” or armed conflict, or facing an “imminent attack.” The president would have 60 days to obtain a warrant, but he would be able to continue warrantless spying if he certifies and describes to Congress his reason for doing so on national security grounds.
We need to know when a terrorist mastermind overseas is plotting with a suicide squad here in the US. The President as no role in the process of detection and passing on leads for investigation. He has left all those decisions to the career professionals. There is no expansion of Presidential Powers in the sense the President can order surveillance on anyone in the US out of the blue.
So where are we? We have the NSA monitoring terrorist and intercepting leads about possible terrorist comrades here in the US. The NSA cannot request a warrant for these leads since the FISA judges will not allow NSA intel to form the basis of probable cause for a FISA warrant. So now, after 9-11, the lead is passed to the FBI instead of thrown away. The FBI investigates and goes to the FISA Court if the lead looks like it might represent a threat to Americans. What is so wrong with this the democrats have committed to destroying it? Do they want to go back to the pre 9-11 days when terrorists reached these shores and openly and freely planned and coordinated their final attacks with their masters back home? Why are we listening to these suicidal ideas as if they are reasonable and valid?
Many people outside the Bush adm like you need to go online with Fox News, CNN, Rush Limbaugh, et al., and repeat what you just said.
Over and over and over.
Not just one person but several people need to say the same things.
Oliver Stone is one mis-guided, mis-informed human being.
By the way guys, heads up…looks like Chris Wallace has another good lineup for this Sunday. Fox’s ratings should be through the roof on this one too. Former Clinton advisors and some Bush people too. Anybody wanna bet that the Clinton people will be armed to the teeth with talking points…that is IF they are “allowed†to show up at all? I was also interested to hear that Michael Schauer (Imperial Hubris) is going to be on there too. Get out the TIVO and the popcorn, people!
Carol
What would happen under this law if a terrorist is an American citizen who is in the US and cooperates with Al Qaeda or other foreign terrorists?
Nice post AJ.
Hey BTW could you link that one post you had on what precedence Bush was using. I know alot of presidents use foriegn survellience, i believe it had past example of such usage. Maybe it was the court rulings showing precedence.
Do you know what i mean?
AJ, you’ve done a number of great posts on this subject, but this is one of the best and most comprehensive. As Lurker says, it just needs to be repeated over and over and over and over and …. And even then you get Lefty after Lefty whining “can’t they just get a waaaaarrant!!” I’d just want to throw up my hands and say “I give up”, but I can’t and we can’t. There’s too much as stake.
Carol, my grandson’s Cub Scout pack sold popcorn as a fundraiser. I’ve got a good supply, heh.
One point of procedure that is still unclear to me: when the NSA passes intelligence onto the FBI, can the FBI then present that same intelligence to the FISA court? Or is the FBI expected to investigate, uncover new evidence which parallels the NSA’s findings, and then pass onto FISA only that evidence which the FBI discovered on its own?
DubiousD,
My reading is the FBI must provide independent, substantiating evidence. The NSA evidence can be included, and is marked. And only the the Chief Judge of the FISA Court would review cases with NSA intel included – at least until the leak happened.
AJ
What you are actually saying is that NSA is toothless, and must go hat in hand to the FBI . who then, after investigating whatever NSA uncovered, can ask for a warrant? Then the FISA court decides whether to issue this warrant. This all takes time. Maybe time we don’t have. And if, as in the past, the FISA court declines to issue the warrant, are we just to sit by and let disaster happen? I am sick and tired of the legislative and judicial branches infringing on the executive. We are at war and it is sickening how they are trying to curtail the power of the president. Sometimes, a decision has to made at a moment’s notice. We can’t wait until congress talks it to death and holds everying up so they can get face time on tv and wring every ounce of politics out of it. It is a fine line and they have gone over it.
What you are actually saying is that NSA is toothless, and must go hat in hand to the FBI
Barbara, your statement is correct when one end of the intercepted conversation is in the US. If the NSA interecpts communications in, say Afghanistan, about an imminent Taliban or al Qaeda offensive, that intel is passed directly the appropriate military commander. There may be actions going on behind the scenes on intel where one end of the communication is in this country that the NYT just hasn’t leaked yet. I wouldn’t be surprised. Bush takes his oath to protect the American people from all enemies, foreign and domestic
very seriously. If I were in his shoes, I would break the law in a heart beat to uphold that oath (and do everything possible not to get caught). We have no way of knowing if that’s what he’s doing, but it certainly wouldn’t surprise me. To me, though, the proof is in the pudding — we haven’t had another attack in this country in 5 years. either the FBI is doing a helluva job in connecting dots, or there are some other, more clandestine forces at work.
Retired
Actually I was talking solely about calls in the US. As far as I can tell, judges and congress have no jurisdiction overseas, although they have a lot to say about Guantonimo which is not in the US. But just give them time, they will think of some other way to curtail the president’s power and take his power for their own. The problem with these people is that they get Ptomac fever when they get to Washington and forget all about us. That’s why I am so gung ho for term limits. Wahingtron is a crooked, crooked town.