Comments (62)

pol wrote on January 17, 2007 2:27 PM:

There must be a catch...

Robert Earle wrote on January 17, 2007 2:30 PM:

One judge, one 'order' that covers the whole program ?!? One document that covers the entire program and the entire country in perpetuity ?!? Don't warrants have to be specific, and time-limited?

Wow, do I feel better about my rights being protected now!

Allsburg wrote on January 17, 2007 2:31 PM:

Now this keeps getting more and more disturbing. It sounds like what Gonzalez has done is to get some judge to agree to a standing warrant, for use whenever the NSA feels that the need arises. At least when the NSA program was acting extra-judicially, they were just thwarting the law. But now they are actually making a MOCKERY of law. What kind of warrant is a standing warrant that can be used against whomever, whenever, in the NSA's judgment? It's exactly the kind of warrant that our forefathers rejected when they kicked the British throne out of this country 200 years ago.

Perhaps one of the most depressing developments in Nazi Germany occurred when German judges began condoning the illegal activities of the Third Reich. If you've seen Judgment at Nuremberg, you know what I mean. It's always so said to see a judge--a guardian of the rule of law--drinking the politicians' Kool-aid.

ShaShaMae wrote on January 17, 2007 2:32 PM:

Not clear - is this a blanket "warrant" from FISA or does it mean that the law is to be followed wherein each case of spying has to be approved...even after the fact if time is of the essence?

JM wrote on January 17, 2007 2:33 PM:

The CYA begins in earnest...

Colin wrote on January 17, 2007 2:36 PM:

This doesn't change the fact that they've been violating the law for the last six years.

When Gonzales shows up to testify tomorrow I hope they tell him to shove this letter up his...

Ed Drone wrote on January 17, 2007 2:42 PM:

This proves that the earlier practice was illegal, you know.

Ed

EH wrote on January 17, 2007 2:42 PM:

Will Gonzales be under oath this time?

LizDexic wrote on January 17, 2007 2:50 PM:

There must be a catch...

They've changed the name to the Terrorist Listening Plan...so those former "innovative" orders just don't apply!

Cleveland Bob wrote on January 17, 2007 2:50 PM:

Ed is right. That proves the illegality all right. Yet...

...and down the memory hole it goes.

(BTW: my security code word was: meat)!

yellowdogfox wrote on January 17, 2007 2:51 PM:

If Leahy does not place Gonzalez under oath I think my remaining shreds of confidence that somehow this country will survive Bush will be instantly vaporized.

Phlip wrote on January 17, 2007 2:55 PM:

In other news, all FISA judges have been forced to resign and will be replaced by the RNC janitorial staff.

Crust wrote on January 17, 2007 2:55 PM:

Why the concession now? Two possible answers:

1. Fear of incipient oversight.
2. The appeals court is slated to start hearing oral arguments in ACLU v. NSA on Jan. 31 and they don't want to try to defend the program (in the first go round they only argued standing and state secrets, not substantively arguing the merits of their case despite the judge's demand that they do so). They've pulled this sort of trick before (e.g. to stop the Supreme Court from considering Hamdi).

I suspect #2 is the real issue here. They really don't have a case (especially since the Supremes' decision in Hamdan v. Rumsfeld ruled out the AUMF argument); see http://tinyurl.com/ylspsd and http://tinyurl.com/p66mv for details. Their least tenuous argument is that a law (FISA) passed by Congress in 1978 and amended as part of the Patriot Act in 2001 unconstitutionally restricts the President's powers despite the fact that literally no one publicly claimed this before it was revealed that the Bush administration was violating FISA.

Note that this letter is not a promise to comply with FISA. In particular, it does not cover the NSA call database project reported by USA Today (which violates the pen register provisions of FISA) and who knows whatever other programs may exist but we haven't heard about.

I also find it interesting that the letter refers to "A judge of the [FISC] issued orders" rather than the whole Court.

Crust wrote on January 17, 2007 3:01 PM:

The Democrats should do two things:

1. Demand that the government comply with FISA, not just with respect to the "Terrorist Surveillance Program", but in general. They should demand that Gonzales recognize that FISA (including the pen register provisions) is the law of the land, that it is constitutional and that it has not be secretly or accidentally abrogated by subsequent legislation such as the AUMF.

2. Demand that the submission to the FISC should be retroactive. The FISC should be asked to approve or disapprove of each instance of the last 4+ years that should have been submitted to them in real time.

Jeff B. wrote on January 17, 2007 3:02 PM:

yellowdogfox,

I'll go one better: If Leahy does not place Gonzalez in a chokehold and then straddle him for some Abu Ghraib steam purging, GOP fatboy fun, in a Chris Farley-Patrick Swayze Chippendales SNL way, my remaining shreds of confidence that somehow this country will survive Bush will be instantly vaporized.

PCKelly wrote on January 17, 2007 3:09 PM:

I think this might be big. In one sense, it says that the judge ordered surveillance to be conducted under FISA, which implies it is illegal to not conduct it under FISA.

On the other hand, it says that this surveillance will go forward, and since Arlen Specter's FISA bill didn't pass, the court doesn't have the authority to approve a general warrant. (That would in fact be very unconstitutional, as the US Constitution's 4th amendment says "and particularly describing the place to be searched, and the persons or things to be seized."

That means you can't have a general standing warrant. The court doesn't have the statutory authority to approve this either.

I'm lead to believe that the court ruled the program unconstitutional and Gonzales is spinning in saying that the identical program will continue under the same orders from the court.

If the court ruled that way, then they have decided to ignore the language in the 4th amendment about particular people, places and things.

Allsburg wrote on January 17, 2007 3:10 PM:

I've read that letter about five times now, and I remain convinced that the Bush administration is simply trying to hide the ball. This letter does not indicate that the surveillance will once again be placed under FISA control. It only says that the NSA's "actions" will now be sanctioned by the Court, while leaving the NSA's flexibility and need to work quickly intact. This, plus the references to a single "order" (from a single "judge") can only mean that a standing warrant has been issued. Gonzalez cleverly says that Bush will not seek reauthorization for the TSP, because quite frankly, a federal judge has apparently given the NSA full approval to conduct business as usual.

I wonder who that judge is, by the way?

Crust wrote on January 17, 2007 3:10 PM:

I mean 5+ years.

Crust wrote on January 17, 2007 3:16 PM:

That's an interesting comment, Allsburg. I do find the letter quite opaque, which is surely a bad sign especially with this crew.

And let's not forget that, frankly, we have no reason to trust that what these guys say is true (let alone not misleading). E.g. the president himself said in April 2004 that the government did not wiretap without "getting a court order before we do so", despite the fact he obviously knew the opposite to be the case. See http://www.whitehouse.gov/news/releases/2004/04/20040420-2.html

April Fitzsimmons wrote on January 17, 2007 3:21 PM:

As a former intelligence analyst it is my unfortunate belief that the government will continue to gleen whatever intelligence they need, be it legal or illegal. This letter will not protect the superficial privacy Americans believe they possess. There is no oversight in the arena of intelligence and I will eat my Meritorious service medal the day I see a judge hold George Bush and Dick Cheney to the fire over this.

I was monitored by FISA while touring the country with a memorial to honor the fallen troops of the Iraq War. They perceived this memorial as a threat to National Security.

We've lost our minds and the nation has lost perspective.

April Fitzsimmons
Former Intelligence Analyst
USAF (1985-1989)

TheOtherWA wrote on January 17, 2007 3:22 PM:

Interesting bit at the end there. The president has determined not to renew the program when the current authorization expires.

That says they know they're screwed. When does the current auth expire? Is this the program that was to be renewed every 45 days?

DallasNE wrote on January 17, 2007 3:25 PM:

So what has changed. Has that "cumbersome" process of obtaining FISA warrants changed? No.

What changed was the person with subpoena power. Had Specter not been a rubber stamp for Bush this change would have been made 2 years ago. Elections do matter. And don't forget that in 2008.

rf wrote on January 17, 2007 3:33 PM:

January 17, 2007 02:42 PM
Posted by: EH

If not, I will riot in my home/office loud enuf to cause the fixtures to rattle in the senate hearing room-

Long Memory wrote on January 17, 2007 3:42 PM:

This makes it official. The GOP is the party of Big Brother. While there was a Republican Congress, the White House could get away with it because they had their pals running interference for them. Now that the Democrats are in charge, they'll go back to doing things the way the law was written. That makes those FISA judges incredibly important, and all we can hope is that they take their job more seriously than the GOP took its job the last 12 years.

But never, ever let them accuse Democrats again of being the party of Big Government. We didn't wiretap American citizens. We didn't torture captives. We didn't ... well, where to end.

Crust wrote on January 17, 2007 3:42 PM:

The go to guy on this stuff is Glenn Greenwald. See http://tinyurl.com/37nw4b for his preliminary comments.

FrancesTheCockatoo wrote on January 17, 2007 3:42 PM:

Check the little guy's green card.

youragentman wrote on January 17, 2007 3:44 PM:

Can I use this for my outstanding traffic warrants?

"Dear State Police:

I am writing to inform you that on January 17, 2007 I have stopped speeding. As a result of this decision, I will now obey all posted limits.

I am committed to using all legal means to control my future driving techniques to protect other drivers and conserve fuel. Although, as I previously explained, my earlier rate of travel complied with prima faci traffic rules and allowed necessary speed and agility to reach my destination on time.

Accordingly, my past actions are no longer an issue for your consideration.

Sincerely,
Yragentman"

Waiting in Texas wrote on January 17, 2007 3:47 PM:

what did the dems have to give up to get that letter from Gonzales? More importantly, what is the real backstory on this?

citizen spot wrote on January 17, 2007 3:54 PM:

"judges not fit to rule on security"

from the guardian

http://www.guardian.co.uk/usa/story/0,,1992684,00.html

MNSpectator wrote on January 17, 2007 4:11 PM:

This changes nothing but the cover story. They got a blanket authorization from a FISA court judge to do whatever the hell they please.

Period.

There is no review of any specific communication or target being performed here. None of the checks and balances that are really at the core of the debate are being addressed. This is Abu Gonzales telling Congress "You people wanted a FISA judge to okay this? Well, he/she just did. Shut up and sit by your dish."

Crust wrote on January 17, 2007 4:12 PM:

Glenn Greenwald makes a great point in Update II at this post: http://tinyurl.com/37nw4b.

According to Gonzales' letter they are using a "probable cause" standard of proof under the new arrangement. However, previously their central argument of what was wrong with FISA was that a probable cause standard was too stringent. Instead they said they needed to use a "reasonable basis" standard. (Not that this argument made a lot of sense even at the time. The White House had earlier rejected a proposal to amend this standard in exactly this way as part of the Patriot Act back in 2001. What is it they say about consistency and hobgoblins?)

Anonymous wrote on January 17, 2007 4:19 PM:

I'm sure that Gonzales is beginning to see the Harriet Myers writing on the wall.

He needed to burnish his credentials right quick as a fighter, compromiser and, most importantly winner. I think he's finally beginning to realize that if he gets cut loose, he's the one left holding the bag, and the Administration is savage on those once they're out the door.

Legalize wrote on January 17, 2007 4:32 PM:

This changes nothing. ONE FISA judge has granted the administration a blanket warrant to do whatever the hell it wants to do - and oh, by the way, what we were doing before in contravention of FISA wasn't unlawful before.

Under FISA only the Chief Justice of the Supreme Court may direct the personnel who sit on the FISA Court, so as to - wait for it - avoid the appearance of influence from the A.G.'s Office.

The rat will go to the Judiciary Committee tomorrow and say "look, you wanted judicial oversight, and now you've got it! YOU explain to the public why you want to further hamper the Decider's 'Increadibly Patriotic, Super Lawful, Evil Terrorist/Communist Monitoring Program.'"

He knows that the public doesn't have time to listen to legalistic arguments about FISA.

I think, consistent with the A.G.'s little scheme, Congress should issue an open-ended, blanket subpoena authorizing it to drag his ass before various committees for ill-definied periods of time, coupled with blanket authority to demand and inspect all documents that have gone through his hands relative to the matter.

For the next two years? No, forever. Keep dragging him back as a material witness in perpetuity.

MouseThatRoared wrote on January 17, 2007 4:49 PM:

I think a pertinent question is, how long is the current Terrorist Surveillance Program authorized for? Gonzales says the Bush administration will not seek to reauthorize it when it expires, but when does it expire? At the end of his second term?

PCKelly wrote on January 17, 2007 5:44 PM:

"I think a pertinent question is, how long is the current Terrorist Surveillance Program authorized for? Gonzales says the Bush administration will not seek to reauthorize it when it expires, but when does it expire? At the end of his second term?"

It is re-authorized every 45 days, that means at the very least it will expire 45 days from the date when it was still active and the judge issued his/hers ruling, January 10. That would mean the first week of March, at the latest, and possibly sooner.

"This changes nothing. ONE FISA judge has granted the administration a blanket warrant to do whatever the hell it wants to do - and oh, by the way, what we were doing before in contravention of FISA wasn't unlawful before."

Actually, it changes everything. The judge at the very least said that the President doesn't have the right to conduct foreign intelligence surveillance without a warrant, which was one major problem with the NSA warrantless spying program.

Senator Arlen Specter (R-Penn) proposed an alteration to the Foreign Intelligence Surveillance Act, which would allow a Foreign Intelligence Surveillance Court judge to issue an opinion on the entire NSA warrantless surveillance program. Senator Specter's bill passed the House, but did not pass the Senate. That means FISA as most recently amended in the wake of 9/11, is still in effect.

That fact prevents a judge of the FISC from issuing an opinion on the entire surveillance program, which approves of the whole program. In other words, as the law currently stands, and as it stood on 1/10/07, when the opinion was issued by the FISC judge, that they couldn't approve of a general program warrant.

This means that the Foreign Intelligence Surveillance Court will be supervising the surveillance which occurred without its approval before the 1/10/07 decision.

In other words, AG Gonzales and his friends at the NSA will have to get a warrant as FISA states.

coitus bush wrote on January 17, 2007 6:08 PM:

shorter Gonzales- we will get warrants thru FISA for the "Terrorist Surveilance Program" hee hee we now call it the Watch Everybody Surveilance Program" instead.

LogicalPete wrote on January 17, 2007 6:21 PM:

The Govt is too corrupted at this point to fix itself.

Not even the US Military have the good sense of staging a peaceful coup de etat and restore the Constitution.

The only logical thing that the American people can do now is Revolt.

masaccio wrote on January 17, 2007 6:35 PM:

Where is the order?

masaccio wrote on January 17, 2007 6:36 PM:

Actually, per the letter, where are the orders? Is an order the same thing as a warrant?

Allsburg wrote on January 17, 2007 6:45 PM:

PCKelly said: "Actually, it changes everything. The judge at the very least said that the President doesn't have the right to conduct foreign intelligence surveillance without a warrant, which was one major problem with the NSA warrantless spying program."

Actually, PCKelly, I think that's some wishful thinking. To have a judge merely grant a blanket warrant is not an indictment of the previous system. In fact, it appears what has happened is that someone convinced one of these judges to "approve" the system that NSA already has in place. It sounds like a judge has said, "I give NSA approval to keep doing these surveillance things, as long as the NSA promises to abide by certain guidelines." Of course, this is no real oversight of NSA at all. It merely allows the Bush administration a justification to allow the surveillance to continue with at least a shadow of authority. The NSA's got to know that Congress is never going to reauthorize it again now that the democrats are in power; and they also have to figure that the Courts are on the verge of invalidating the TSP legislation anyway. The Bush Administration is doing what it's good at: jumping from one leaky ship to another at the last possible moment without making any real effort to change its strategy. It will be business as usual at the NSA, and it doesn't sound like there will ever be individual warrants issued while Bush is in office.

citizenboo wrote on January 17, 2007 8:32 PM:

Judge Quid Pro Quo will eat like a king for the next few years ...

Does anyone happen to know if this program has actually accomplished anything??

AnnaCatherine wrote on January 17, 2007 10:05 PM:

Gonzales has never convinced me that because of him I would be safe. Quite the opposite. Humility seems to be the order of the day. Tomorrow should be more of the same. I feel better already.

Eddie-George wrote on January 18, 2007 8:44 AM:

The first sentence should set off everyone's bullshitometer. Look at it:

"... a Judge of the FISC issued orders authorizing the Government to target for collection international communications into or out of the United States where there is a probable cause to believe that one of the communicants is a member or agent of Al Qaeda..."

And then the second sentence contains an assertation that surveillance conducted prior to receiving these orders "will now be conducted subject to the approval of the FISC".

This is my understanding then. A FISC judge says the NSA can spy on suspected terrorists. Unless implied by the probable cause stipulation, there is no mention that a FISA warrant needs to be obtained - ergo, there is no indication that judicial oversight will in fact occur. Spying done before these orders were agreed is covered by these same orders.

In short, what Gonzales is claiming is that what the NSA was doing before was legal. They are going to continue to do what we were doing before, just now, the new orders give "substantial advantages". (i.e. evidence collected will be admissable in court.)

So, a retroactive legalization of (unconstitutional) warrantless domestic spying, and authorization to continue doing it. Military Commissions Act, anyone?

legalpad wrote on January 18, 2007 5:43 PM:

we've seen the pattern before with hamdi and padilla. just when they're about to be held accountable in a court of law, they change their tactic, avoid the merits (on which they know they must lose), and try to moot the case by pretending to comply or (in the detainee cases)by releasing the "prisoner" or bringing new charges. they are gaming the system as any criminal gang might. what makes it all the more outrageous is that their one refrain--that the rules should all have changed on 9/11--was itself a product of their own engineering. those of you out there who have yet to discover that 9/11 was an inside job are not seeing the rest of the iceberg. start there and work backward.

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