Jan 17 2007

NSA Eavesdropping Now Court Approved – Permanently

Published by at 5:18 pm under All General Discussions,FISA-NSA

I was wondering how the democrats were going to try and save face on the NSA Terrorist Surveillance Program (TSP) which is key to our nation’s security. It seems the classic Washington DC bait in switch is being used. I posted extensively on the TSP here since the NY Times blatantly misreported on the program in December 2005. A quick review of the situation as I have seen it (confirmed by numerous articles and on the record comments) before we get into the face saving switch.

Prior to 9-11 the Gorelick wall, as it became known during the 9-11 Commission investigation, was at its peak. From before the days of the Church Committee in the late 70’s which created the FISA laws and the now not so secret FIS Court the NSA has been monitoring the communications of our enemies overseas. This includes all forms of communication as time moved from analog phones to modern nd digital electronic media like email, cell phones, etc. During the time up until 9-11 if the NSA detected a conversation between an enemy overseas and someone in the US (you need to monitor the communication to determine where the other end is, of course) they would alert intelligence, but not law enforcement.

This quaint tradition, which is not required by law, was followed to make sure intelligence assets where never used against Americans. The Church Committee even recognized this feature of the NSA when it was trying to create FISA and the FIS Court. This was the pre 9-11 fantasy world. It apparently included detection of the 9-11 highjackers ahead of time, but the information was not passed onto law enforcement due to this quaint and dangerous tradition. We learned these kinds of traditions can get us killed.

So after 9-11 Bush actually started using FISA more (not less) and with their help. Instead of throwing out leads garnered from legal NSA snooping overseas, Bush worked with the FISA court to do something they refused to do until that point – consider an NSA generated lead probable cause IF it was supported by evidence garnered by the FBI. So the NSA began to pass leads on people here in the US in contact with our enemies overseas (in some cases the foreign based cell phone actually made it to our shores and we had the case where noth ends were in the US briefly). The FBI investigated the leads and, if real enough, they went to the FIS Court for warrants so they could do full up surveillance (not just catch calls to the enemy combatant overseas).

The FIS Court head judges kept this new plan from the other FISA Court judges. No FISA warrent could be let on NSA leads alone, but now the fact the lead began with an NSA tip was not sufficient to turn our backs and let another 3000 people get killed needlessly. One day the secret got out and a FISA judge quit – not because the NSA was bypassing FISA as the NYTimes claimed, but because their leads were ‘tainting’ FISA. I noted the resigning judge’s use of the word “tainted” early on – which implies to pollute, to make impure. It was clear there was no bypass and the NYTimes exposed a key program due to a simple lack of reading comprehension.

In any event, the program continues because all elements are legal I posted on a series of myths about the NSA TSP (like NSA could get warrants from the FIS Court for its work, which is impossible legally) for those truly interested. There are comments from the FIS Court judges themselves acknowledging the TSP was legally, but would be a problem if misused (so would every aspect of government – just recall the IRS in the wrong hands).

So now we get to the DC bait and switch so the media and Dems can pretend they weren’t total idiots the whole time and pretend they slayed the beast:

President Bush has decided not to renew a program of domestic spying on terrorism suspects, Attorney General Alberto Gonzales said on Wednesday, ending an law-enforcement tactic criticized for infringing on civil liberties.

“The president has determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires,” Gonzales wrote in a letter to congressional leaders.

Bush has reauthorized the program every 45 days, and the current authorization is mid-cycle, a senior Justice Department official said. Gonzales said a recent secret-court approval allowed the government to act effectively without the program.

Emphasis mine. The FIS Court has been assisting in crafting the TSP and in working out new legal parameters to continue it in light of the NY Times blowing its cover. Clearly the FIS Court has established further guidelines to now make the TSP a permanent fixture of our national security and legal infrastructure.

“Any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court,” Gonzales said.

Gonzales said a judge on the secret FISA court recently approved a government proposal allowing it to target communications into and out of the United States when probable cause exists that one person is a member of al Qaeda or an associated terrorist organization.

He reiterated the administration’s position that the surveillance program has been legal, but said the government will now have the ability to act with sufficient “speed and agility.”

White House spokesman Tony Snow said the new rules approved by the court addressed administration concerns.

So, did the TSP disappear? Hell no. It is now under a new name and working to protect you and your loved ones.

Update:: Here is the letter from Gonzales to the Senate. Too funny, but the FIS Court gave Bush a blank warrant to protect the nation from attack. Actually, what it means is NSA developed leads can be the basis for full FISA warrants that enable monitoring of all communications – not just the ones to the terrorists. Game, Set and Match

16 responses so far

16 Responses to “NSA Eavesdropping Now Court Approved – Permanently”

  1. Media Lies says:

    Once again, the Bush administration has made…….

    ….a serious mistake, caving in to political pressure and placing the NSA surveillance program under FISA court supervision. There never was any doubt……

  2. Bill's Bites says:

    NSA Eavesdropping Now Court Approved – Permanently…

    I won’t try to summarize it. Just go read A J’s post….

  3. Snapple says:


    You wrote, “what it means is NSA developed leads can be the basis for full FISA warrants that enable monitoring of all communications – not just the ones to the terrorists. Game, Set and Match.”

    I don’t understand your point about “not just the ones to terrorists.”

    I have never understood this stuff. It is so arcane.

  4. AJStrata says:


    Sorry – trying to speed write. The NSA monitors terrorists overseas. When those terrorists contact or are contacted by someone in the US those communications are monitored (legally). This is the difference between the Target of monitoring and Contacts of the target. Everyone who contacts the Target is fair game – of course. Whether authorized by a warrant or war powers or Article II, conversations with targets of surveillance are not covered as illegal surveillance.

    So what this means is each time a US-based contact is communicating with a terrorist target, that communication can be monitored. Now you cannot go and monitor all the communications of the contact – that is illegal. An example would be when police have a warrent to eavesdrop on a mobster, and he calls your house by misdialing a number. That one call to you is legal surveillance of YOU under the warrant related to the target. Authorities cannot normally begin monitoring all YOUR calls just because you were in contact with a Target.

    So if authorities want to put the US-based contact under full surveillance, they need to go to the FIS Court to get a warrant. Until that happens they can only capture what the snare listening in on the overseas terrorists. A very important and subtle legal fact most reporting literally ignored through all this.

  5. erp says:

    Already the media are selling this as a victory for the dems and “another” Bush retreat.

  6. Bush Won’t Reauthorize Terrorist Surveillance Program…

    I’m about to walk out the door and I check on things one last time and see this news! Of course news like this would come out right as I leave. It looks like the Bush Administration decided that trying to keep the program as it is with the new …

  7. Snapple says:

    So are you saying that it may now be easier to monitor the domestic contact if the government thinks that person is up to something bad?

    I think a lot more goes on domestically than people realise.

  8. For Enforcement says:

    Thanks for the analysis, from the news release it sounded as if Bush had caved, and I was crushed. Now I see he WON. All right. thanks again.

  9. FISA to gain complete authority over Domestic Surveillance?…

    Seems the Bush Administration blinked on the legal NSA survelliace program:
    “WASHINGTON (AP) — The Justice Department, easing a Bush administration policy, said Wednesday it has decided to give an independent body authority to monitor the g…

  10. Terrye says:

    People are going to try to make this look like a victory for the Democrats just because the media says it is. But in truth if the program existed only because Bush signed an order for it every 45 days it seems to me that getting some kind of permanent status for it means that even if a Democrat wins in 08 this program will survive to some extent.

  11. The Heretik says:

    Card Tricks…

    Memo from Alberto Gonzales: Kindly disregard any idea that we had a losing hand. On spying on citizens. On Article Two inherent authority. On state secrets. And oh, yeah, we will comply with FISA in “innovative” ways. And forget that m…

  12. Retired Spook says:

    As AG Gonzales noted, the negotiations with the FISC over this issue have been going on since spring of 2005. Had Bush not signed the Executive order every 45 days as Terrye notes, that, IMO, would have been grounds for impeachment. His first and foremost duty is to protect the American people from ALL enemies, FOREIGN AND DOMESTIC, and he’s done a superb job. The fact that it took nearly 2 years to work this out with the FISC reflects just how complex this issue is. (or, perhaps, how stubborn and dense the FISC judges were). Either way, the Dems can spin this all they want. It certainly wouldn’t be the first time they’ve exploited national security for political gain. I wish more people found it as abhorrent as I do. I just wonder how many hours or days it will be before the NYT spills the details of these new orders.

  13. lurker9876 says:

    Wonder if the Democrats were caught unawares about this…forcing them to change their agendas, huh?

  14. Has the administration caved on the NSA surveillance program?…

    The blogosphere is buzzing with tonight with the belief that the admin has given up on the NSA Terrorist Surveillance Program by saying they ‘won’t reauthorize it’ and that all future requests for warrantless wiretaps will be decided …

  15. HaroldHutchison says:

    Not only that… it can always be re-authorized with an Executive Order – which was how it was started after the 9/11 attacks.

  16. FISA Versa?…

    Glenn Greenwald, in full crow, writes of the re-connection of the President and FISA over the (insanely) controversial NSA surveillance program :For those people (as opposed to the Bush followers who support anything the administration does no matt…