I'm currently in a bit of a spat over at City Comforts regarding the warrantless foreign taps where 1 end is inside the US. In the process of setting up my current reply, I find that something that I relied upon is in danger of dying from bit rot. Thus I'm going to rescue it and put it up on my own blog.
From Google cache here's a very useful comment on the FISA process from Jim Rockford, originally on The Moderate Voice.
Jim Rockford (mail):
What are the stakes? NY Posts reports that there was a conference with Feds, locals in NYC for atomic bombing disaster relief. Prediction: 1.6 million dead.Those are the stakes. Pretty high if you ask me.
Next, what is FISA? You can read the WHOLE THING online at Cornell.edu . Just google it (use Cornell.edu as the domain in advanced search) and "FISA Law" as the search term.
It's true that almost no FISA warrant is turned away. The real gate is the application process which has ELEVEN major steps and requires about 6 months time to complete from start to finish. These steps are set BY LAW in the FISA statute itself.
The require certification in WRITING by the National Security Advisor (actually, his legal staff which likely runs about 3-10 people and is a bottleneck) on the facts of the issue, WHY the information is foreign intelligence, WHY it cannot be gotten any other way through normal investigative MEANS; and specific minimization issues to protect privacy of any intercepted communications.
The FISA statute is written to limit wiretaps, and requires extensive documentation for each "facility" i.e. telephone, computer, cell phone etc and limits to that facility. If Joe Jihadi walks into a friends place and it's not on the FISA Warrant specifically, no dice. You can tap but have to go back in 72 hours with the National Security Advisor AND the AG written approval.
Which are the two big bottlenecks. Legal staff is going to push back for the bare minimum; their job is to CYA their own legal behinds; and then their bosses. Bad guy catching and terrorism prevention are low on that list. This is why Clinton despite being over-run by terrorism and not being either stupid or a fool rarely used FISA warrants. Consider 1993 WTC attack; the Blind Sheik bridge and tunnel bombing plots; Cole, Khobar Towers, 1998 Embassy bombings, the Millenium LA Airport plot, etc. Clinton hardly applied for FISA warrants because it's a massive undertaking for "circle the fighter jets over the airfield boys!" You can only go to that well once or twice. You can't just add lawyers to NSA or AG staff; these are limited positions with high national security vetting, from a limited pool of people.
You capture 9/11 and 1993 WTC attack architect Khalid Sheik Mohammed and find his laptop computer. He has over a hundred names or phone numbers in the US. Imagine the effort to prepare a 2 inch thick binder for the FISA court full of documentation and carefully sworn written affadavits that won't cause legal problems for the lawyers or their bosses.
FISA was written in 1978 to basically kill with paperwork all but a handful of wiretap warrants, and it did it's job quite well.
Bush argues that if one end terminates overseas, he has a right under terrorism fighting authority as Executive to listen in on that conversation as long as it is related to and tied to information gathered about Al Qaeda activities. If Bush's actions wrongly cause an innocent person to be wiretapped, the worst is that time is wasted by investigators and some secret info of a man or woman's personal life is overheard and soon forgotten as the lead is dropped.
If Russ Feingold's advice to never wiretap at all unless you can push it through FISA, the worst that can happen is that promising leads simply can't get through the system and to the Judge because of the show-stopping requirements, and information that could stop an attack killing 1.6 million people is never obtained.
I know what MY RISK PROFILE IS. Perhaps you'd trade 1.6 million people for civil liberties absolutism. Not I.
In the event of the worst case; 1.6 million people dead, I can imagine not a mosque standing and many Muslims simply dead or interned. A military government. And strategic nuclear retaliation. I think GWB is ironically the greatest protector of civil liberties seen in generations. Yes there is a reason he's angry.
Consider these stakes. Or pretend the fact that we were not hit despite London, Beslan, Bali, Madrid, Tunisia, Amman, Istanbul, Thailand, etc was because bin Laden really likes us now. Or he's no threat. Or maybe what GWB did actually saved lives.
I happen to disagree with Jim Rockford on the nature of the threat. I'm pretty sure that if we were to undergo an order of magnitude higher casualties than 9/11 (30k instead of 3k), we'd have enough anger to roll through constitutional amendments that would gut current protections. We wouldn't have to go all the way up to losing an entire city and million plus casualties. We'd lose the Constitution well before then. The rot has set in enough that we've already endangered political free speech with campaign finance reform and that's just over instances of buying policy outcomes. When lives are at stake, tens of thousands of funerals are already being held, the paper protection of the Constitution won't last long and it'll be overthrown in a way that can't be lawyered away, by amendment and with teeth in it that can't be gotten around.
Posted by TMLutas at January 2, 2006 12:58 PM