The administration’s legal justifications for bypassing FISA and “authorizing” surveillance of Americans is clearly breaking the law.

This post is going to sum it up in an easy to understand nutshell.
The proof of the illegality comes from lawyer Glenn Greenwald:

In June, 2002, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA. Specifically, DeWine’s legislation proposed:

to amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion. . . .

In other words, DeWine’s bill, had it become law, would have eliminated the “probable cause” barrier (at least for non-U.S. persons) which the Administration is now pointing to as the reason why it had to circumvent FISA.

Got it?  Senator DeWine wanted to amend FISA in 2002.  A DOJ lawyer named James A. Baker (no relation to James Baker III) then praised FISA as it already was written and said:

The Department of Justice has been studying Sen. DeWine’s proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it.

Therefore what even the harried traditional media journalists can understand is A) Congress failed to pass DeWine’s legislation to lower the standard necessary for surveillance (from probable cause to reasonable suspicion) and B) That DOJ, in 2002, said the administration was not prepared to support such a modification, even though it was already bypassing FISA to spy on Americans.

How much simpler does it get than that?

Even though it’s as obvious as daylight that the administration broke the law, Alberto Gonzalez sent this letter (PDF) to Bill Frist on January 19, 2006.  Quoted in its entirety:

The Honorable William H. Frist
Majority Leader
United States Senate
Washington. D.C. 205 10

Dear Mr. Leader:

As the President recently described, in response to the attacks of September 11th, he has authorized the  National Security Agency (NSA) to intercept international communications into or out of the United States of persons linked to al Qaeda or an affiliated terrorist organization.

The attached paper has been prepared by the Department of Justice to provide a detailed analysis of the legal basis for those NSA activities dcscribed by the President.

As I have previously explained, these NSA activities are lawful in all respects. They represent a vital effort by the President to ensure that we have in place an early warning system to detect and prevent another catastrophic terrorist attack on America. In the ongoing armed conflict with al Qaeda and its allies, the President has the primary duty under the Constitution to protect the American people.

The Constitution gives the President thc full authority necessary to carry out that solemn duty, and he has made clear that he will use all authority available to him consistent with the law, to protect the Nation. The President’s authority to approve these NSA activities is confirmed and supplemented by Congress in the Authorization for Use of Military Force (AUMF), enacted on Septembcr 18, 2001. As discussed in depth in the attached paper, the President’s use of his constitutional authority, as supplemented by statute in the AUMF, is consistent with the Foreign Intelligence Surveillance Act and is also fully protective of the civil liberties guaranteed by the Fourth Amendment.

It is my hope that this paper will prove helpful to your understanding of the legal
authorities underlying the NSA activities described by the President.

The attached paper is the DOJ’s “white paper” which you can read here.  I wrote a full article about it last Sunday.

Let’s review this whole thing, in easy-to-understand facts:

  1. The Foreign Intelligence Surveillance Act (FISA) was a law that passed in 1978, a direct result of Watergate, which prohibited the electronic surveillance of Americans by the government without a warrant.
  2. That warrant had to be based on probable cause, i.e. the reasonable belief that a crime had been or is being committed, from the Foreign Intelligence Surveillance Court (FISC).  All FISC warrants and hearings are secret from the public and of course the intended target.
  3. Since its inception, FISC has approved 99.9% of all warrant applications.
  4. At no time since 1978 has FISA ever prohibited surveillance without a warrant on non-Americans overseas.  At no time has FISA prohibited surveillance without a warrant on people who are either in the United States illegally or are here on temporary (legal) visas.  This means all 19 of the 9/11 hijackers could’ve been under NSA surveillance legally with no warrant necessary.
  5. In 1995, FISA was amended to also prohibit physical searches of Americans without a warrant.  Prior to this, physical searches of homes had been legal and permissible without a warrant (in certain cases).
  6. In 2001, after 9/11, the NSA (under General Hayden) began sending “raw” reports to the administration that contained information about Americans.  This information should’ve been destroyed or redacted from reports because it is prohibited by FISA.
  7. Sometime in 2001 or early 2002, Attorney General Ashcroft gave Bush a brief which said it was legal to bypass FISA.  Bush then “authorized” the NSA to begin surveillance on Americans.  Bush has renewed this “authorization” every 45 days since.
  8. Bush and Ashcroft (later Alberto Gonzalez), with the written approval of Donald Rumsfeld, classified this surveillance as a military “black op”, referred to as a Special Access Program (SAP).  Because of its covert nature, only 8 members of Congress were ever informed of the program and they were prohibited by law from speaking of it to anyone else in Congress, even members of the Intelligence Committees.
  9. In 2002, Senator DeWine proposed legislation to reduce the requirements to obtain a FISA warrant from “probable cause” to “reasonable suspicion”.
  10. In response to Senator DeWine’s legislation, the Department of Justice stated that the administration was opposed to this modification because A) the administration had no problems getting FISA warrants and B) because modifications may be unconstitutional.
  11. Congress refused to pass DeWine’s legislation, thereby demonstrating they did not authorize or support bypassing FISA when they signed the Authorization to Use Military Force (AUMF) on September 18, 2001.
  12. The administration continues this illegal program to this day.

And that is what all the “noise” is about.

Peace