January 18, 2007

Who Bent? Who Cares?

It certainly seems tough to tell exactly what transpired as the NSA terrorist communication intercept program is once again back in the headlines:

Bush Retreats on Use of Executive Power (Washington Post)

Court to Oversee U.S. Wiretapping in Terror Cases (NY Times)

Administration to let court monitor domestic spying (CNN)

Attorney General Gonzales to Brief Senate Panel on Oversight of Domestic Spying Program (Fox News)

So what really took place? As legal expert Orin Kerr notes at The Volokh Conspiracy:

What's going on? As with everything about this program, we can't be sure; we don't know the facts, so we're stuck with making barely-educated guesses. But it sounds to me like the FISA Court judges have agreed to issue anticipatory warrants. The traditional warrant process requires the government to write up the facts in an application and let the judge decide whether those facts amount to probable cause. If you were looking for a way to speed up that process and both sides were in a mood to be "innovative" one fairly straightforward alternative would be to use anticipatory warrants.

An anticipatory warrant lets the government conduct surveillance when a specific set of triggering facts occurs. The judge agrees ahead of time that if those facts occur, probable cause will exist and the monitoring can occur under the warrant. The idea is that there isn't enough time to get a warrant right at that second, so the warrant can be "pre-approved" by the Judge and used by the government when the triggering event happens.

While some pundits seem content to label this as a defeat of sorts for the Bush Administration (see the WaPo headline above) and some conservative legal experts are inclined to agree, I'm not sure. I'm not disagreeing necessarily, but this seems to be a case of We Don't Know What We Don't Know, and I'm not sure that is such a bad thing.

Perhaps Mark Levin is right, and Bush ceded the Constitutional authority of the Executive Branch when he should not have. If so, it would not be the first time President Bush made a mistake.

On the other hand, what little we can discern from all the posturing and spin is that the NSA program not only lives, but the FISA court appears to have possibility modified itself in such a way as to be more compatible with the goals of the program... or vice versa, or maybe a little bit of both.

The end result is that the program will continue, and that terrorists attempting to communicate with their allies within the United States will continue to be watched, tracked, and eventually, captured or killed.

Isn't that what really matters?

Posted by Confederate Yankee at January 18, 2007 11:04 AM | TrackBack

If there were an anticipatory warrant issued, it'd be flatly in violation of FISA, and the FIS appellate court would overturn it.

Posted by: jpe at January 18, 2007 12:59 PM

My guess would be that the FISA judges were comfortable with being so inflexible that the Administration went around them -- they retained the moral high ground. This would be especially true if they thought Mr. Bush had the authority to do the necessary wiretapping without their rubber stamp.

Now that Congress has flipped Mr. Bush may have told them that he would not be able to sustain the program without their approval, so they devised an accomodation.

Posted by: Sam at January 19, 2007 01:26 PM

More importantly, the FISA court probably didn't accede to Bush's wishes because doing so is in violation of the law.

Posted by: jpe at January 21, 2007 12:53 PM