Scratch The "It's Too Cumbersome" Excuse To Justify Bush's NSA Illegality

by Steve

Tell me again cultists why it is too cumbersome for Bush to follow the FISA law to obtain warrants to spy on Americans, when out of the 5,000 people he has spied upon only ten or so a year trigger the full range of monitoring?

Intelligence officers who eavesdropped on thousands of Americans in overseas calls under authority from President Bush have dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat, according to accounts from current and former government officials and private-sector sources with knowledge of the technologies in use.

Bush has recently described the warrantless operation as "terrorist surveillance" and summed it up by declaring that "if you're talking to a member of al Qaeda, we want to know why." But officials conversant with the program said a far more common question for eavesdroppers is whether, not why, a terrorist plotter is on either end of the call. The answer, they said, is usually no.

Swell.

Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause.

The Bush administration refuses to say -- in public or in closed session of Congress -- how many Americans in the past four years have had their conversations recorded or their e-mails read by intelligence analysts without court authority. Two knowledgeable sources placed that number in the thousands; one of them, more specific, said about 5,000.

Five thousand without court authority? And yet only ten a year would warrant more intrusive monitoring if existing standards were adhered to by the administration? Doesn’t this indicate that the net is being cast way too wide?

The minimum legal definition of probable cause, said a government official who has studied the program closely, is that evidence used to support eavesdropping ought to turn out to be "right for one out of every two guys at least." Those who devised the surveillance plan, the official said, "knew they could never meet that standard -- that's why they didn't go through" the court that supervises the Foreign Intelligence Surveillance Act, or FISA.

Michael J. Woods, who was chief of the FBI's national security law unit until 2002, said in an e-mail interview that even using the lesser standard of a "reasonable basis" requires evidence "that would lead a prudent, appropriately experienced person" to believe the American is a terrorist agent. If a factor returned "a large number of false positives, I would have to conclude that the factor is not a sufficiently reliable indicator and thus would carry less (or no) weight."

So is following the current law really that cumbersome if less than one percent of the subjects monitored meet a probable cause threshold?

Bush has said his program covers only overseas calls to or from the United States and stated categorically that "we will not listen inside this country" without a warrant. Hayden said the government goes to the intelligence court when an eavesdropping subject becomes important enough to "drill down," as he put it, "to the degree that we need all communications."

Yet a special channel set up for just that purpose four years ago has gone largely unused, according to an authoritative account. Since early 2002, when the presiding judge of the federal intelligence court first learned of Bush's program, he agreed to a system in which prosecutors may apply for a domestic warrant after warrantless eavesdropping on the same person's overseas communications. The annual number of such applications, a source said, has been in the single digits.

Single digits? That’s cumbersome? Look, the issue here isn’t whether or not FISA is too cumbersome in a post-9/11 age; this story effectively proves that it isn’t. The real issue here is that Cheney is re-fighting a battle that he lost thirty years ago, and is using 9/11 to re-fight it, this time with a compliant GOP to back him up without effective oversight.

But there is something else at work here. I for one don't care if a hundred Americans a year are being spied upon as possible accomplices or actual Al Qaeda operatives, as long as a high-level judge somewhere agrees with the executive branch that probable cause existed to monitor that person's communications. I have nothing to hide, and I would never be caught up in something like that. But the two real soft spots for the Administration as highlighted by this story, aside from the Cheney executive branch power grab, are:

1. They've been monitoring 5,000 people without following the law; and

2. Less than one percent of them are actual threats.

This begs the question: then who are the other 4,900 or so people and why were they flagged? And what did you do, or are still doing with the data gathered on them, if you only had cause to fully monitor ten or so a year?

How can you keep them scared down on the farm about terrorists under their beds, if in four years it turns out that your high-tech Legoland only finds several dozen real "probable cause" targets out there?