Larry Johnson discusses a case where the FISA wiretaps were timely and effective, then speculates on why the Bush adminstration would want more:
Now for the real story.
Mosquera was grabbed thanks to a roving wiretap. I've heard the story from friends who were involved with the operation. DEA officials learned that Mosquera's mom was going to call him. They moved quickly to set up a roving wiretap. They knew he was in New York but did not know where. Mosquera took many precautions, including having the in bound call bounce around the United States. He sent a third party to answer the phone. Once certain the coast was clear Mosquera climbed out of his car. DEA agents closed in and put a major league killer in jail. He was later convicted and is serving a long sentence in a high security US penal facility. The FISA authorization was obtained subsequently.
So, President Bush is wrong. You don't have to break a law to get quick action. Not only can you catch terrorists using FISA, we have caught terrorists. The real story behind the unauthorized wiretaps authorized by President Bush probably concerns the source of the info. It appears the most likely explanation is that the Bush Administration did not want to have to tell a Federal judge that they were using information obtained from interrogations that violated the spirit and the letter of the Geneva Conventions. Instead of protecting the nation the President may be covering his derrier.
Next up, Tom Daschle says that contrary to its claims, the Bush administration did not seek Congress' advice and consent (emphasis mine):
Between 2002 and 2004, the White House notified me in classified briefings about NSA programs related to the war on terrorism. The briefers made clear they were not seeking my advice or consent, but were simply informing me about new actions. If subsequent public accounts are accurate, it now also appears the briefers omitted key details, including important information about the scope of the program.
Even with some of the more troublesome - and potentially illegal - details omitted, I still raised significant concern about these actions. As such, I am surprised and disappointed that the White House would now suggest that none of us informed of the program objected.
As a result of the significant legal and security concerns raised by the President's actions, I believe it is incumbent on the President to explain the specific legal justification for his actions, for the Congress to fully investigate these actions, and for the Administration to fully cooperate with that investigation.
Of course, it's easy to say now that they complained then. At least Rockefeller was smart enough to save his memo. It's easy to look back and say what they should have done, but I wish someone had raised some warnings before the coast was clear to pile on.
And via Hoffmania, an Ynigo Montoya moment ("I do not think it means what you think it means"):
In confirming the existence of a top-secret domestic spying program, President Bush offered one case as proof that authorities desperately needed the eavesdropping ability in order to plug a hole in the counter-terrorism firewall that had allowed the Sept. 11 plot to go undetected.
snip
But some current and former high-ranking U.S. counter-terrorism officials say that the still-classified details of the case undermine the president's rationale for the recently disclosed domestic spying program.
Indeed, a 2002 inquiry into the case by the House and Senate intelligence committees blamed interagency communication breakdowns — not shortcomings of the Foreign Intelligence Surveillance Act or any other intelligence-gathering guidelines.
I predict (or just hope for) snowballing on this practive of the media actually checking the veracity of the President's statements. I know they are rusty, but Snoopgate might be like oil to the Tin Man.
Posted by binky at December 21, 2005 10:17 AM | TrackBack | Posted to J. Edgar Hoover | The Ever Shrinking ConstitutionUPDATE:
Like many, I remain puzzled by the decision of Judge James Robertson to resign from the FISA court. Hilzoy has posted a (pretty much) without comment link to the story. A commenter in that thread offers:
he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants.
Huh. Warrantless surveillance turns up information X, which is then incorporated to a request for a warrant from the FISA court, which then might get them around the fruit from a poisonous tree doctrine (though I'm no expert on admissible evidence, just had one class in law school). Potemkin court indeed.
Just a few short steps from their to using such info to get a warrant from a regular court.
So, basically, a judge might resign in protest after unknowingly taking in part in a circumvention, in which the administration misled the court by making the case for a warranted wiretap based on an unwarranted (and undisclosed) prior wiretap.
Posted by: binky at December 21, 2005 03:36 PM | PERMALINK"You don't have to break the law to get quick action." But "...no Warrants shall issue, but upon probable cause, ..." And the Court has held that probale cause must exist before the govenmental action, it cannot be the fruit of the action. Thus, in the case of Mosquera, probable cause existed. And, as you accurately recall from you Con Law class, no warrant could issue based upon an illegal warrantless tap.
Prior to the 20th century, evidence obtained illegal was admissable and the government agents became tort feasors. In the 20th century, the exclusionary rule was invented. However, while evidence obtained in violation of MY rights cannot be used against me, it can be used against you.
Also, not every law applies to every government agent. Our border guards, at the border, are not bound by warrants. The military can search any on base housing or building, any vehicle entering or departing any military installation, any package on, entering, or departing any military installation without probable cause, without a warrant. And its all perfectly legal.
I proffer that if the NSA intercepts are obtained by military personell, they are legal and can even be used in non-military trials.
This is not to say that I like it, only that there is a colorable, rational, argument. Happy to entertain contrary comments based upon reason and fact.
Posted by: StGeorge at January 6, 2006 10:12 PM | PERMALINKUh, not sure where you are going with this, StGeorge.
FISA clearly states that warrants can be issued after the fact; as much as 72 hours after a wiretap is put on a line it is still legal (under FISA) to get a warrant and use whatever evidence you have already collected legally in a court of law. That's in black and white in the FISA.
You are correct, that no warrant can be issued without probably cause. However, that's why FISA was written (originally) the way it was: collecting evidence before you had probable cause was clearly a violation of the Constitution. The FISA solution was to build that "wall" that Rush Limbaugh/Sean Hannity talk about all the time. If you get a FISA warrant, then any evidence that is collected can only be used for (basically) spying/terrorism charges. In other words, (under FISA's original language) if they get a FISA warrant and catch you with 100 lbs of heroin, they can't actually charge you with drug violations. FISA warrants only apply to "national security cases". Or at least, that was the law.
The Patriot Act changed that, and eliminated the "wall". Now, if they get a FISA warrant (again, they can get that 72 hours after they started tapping your phone) and find drugs, they can use that information against you in a common criminal trial. At the time, this change made the civil libertarians insane.
Do you disagree with my description of FISA?
As for your assertion that NSA people aren't civilian, and thus are outside of legal restrictions about evidence gathering, I'll just note that that's a novel legal theory that I haven't seen anyone else argue, or use in a court of law. Have you any evidence to back up that assertion?
Posted by: baltar at January 7, 2006 12:07 AM | PERMALINK