Disorder in the Court
Jan 2, 2006, Vol. 11, No. 16 • By DAVID TELL, FOR THE EDITORS
Since shortly after September 11, 2001-and under the terms of a formal order signed by the president of the United States sometime early the following year-the Pentagon's giant signals--intelligence division, the National Security Agency, has monitored "the international telephone calls and international email messages of hundreds, perhaps thousands, of people inside the United States without warrants." So reported the New York Times more than a week ago. Official Washington is appalled.
Isn't this sort of thing supposed to be illegal-unconstitutional, even? And why would the president think such unilateral domestic spying necessary to begin with? Why couldn't the Justice Department first seek permission from the special judicial panel established for precisely such circumstances by the Foreign Intelligence Surveillance Act of 1978? It's not as though this so--called FISA court was likely to turn them down, after all; that's happened fewer than a half--dozen times in nearly 30 years. And it's not as though the court's rules weren't flexible enough to accommodate the occasional intelligence--community emergency, either. When necessary, and by statute, the government is allowed to seek and secure FISA court approval for relevant wiretaps up to 72 hours after those wiretaps are turned on.
Besides which, if the president really was convinced that U.S. counterterrorism requirements included a program of domestic surveillance beyond what FISA authorized, how come he didn't just ask Congress to amend that law-instead of granting himself apparent permission to violate its very essence?
As we say, Washington is aghast. Mind you: It's not that anybody's especially eager to conclude that George W. Bush is a yahoo Texas cowboy engaged in sweeping, Big Brother--like invasions of American privacy simply because his coterie of whack--job Federalist Society lawyers tell him that presidents should do whatever the hell they want, and this would be an excellent way to prove it. That's not it at all. Democratic National Committee chairman Howard Dean reports that the mere contemplation of such a possibility is "painful" to him. He is bearing this pain, however-he and everyone else in the president's metastasizing army of critics. Their question persists: Why on earth-in the immediate aftermath of 9/11, when our need for meaningful signals intelligence was presumably at its zenith-would the president not have turned first, for assistance, to the Foreign Intelligence Surveillance Court?
Because that would have been insane, that's why.
Set aside, for the moment, all the broad and complicated questions of law at issue here, and consider just the factual record as it's been revealed in any number of authoritative, after--the--disaster investigations. According to the December 2002 report of the House and Senate intelligence committees' Joint Inquiry into the Terrorist Attacks of September 11, 2001, for one, the FISA system as a whole-and the FISA court in particular-went seriously off the rails sometime around 1995. A false impression began mysteriously to take hold throughout the government that the FISA statute, in combination with the Fourth Amendment, erected an almost impermeable barrier between intelligence agents and law enforcement personnel where electronic eavesdropping was concerned. And by the time, a few years later, that Osama bin Laden had finally become an official counterterrorism priority, this FISA court--enforced "wall" had already crippled the government's al Qaeda monitoring efforts.
Absent specific, prior authorization from the FISA court, federal al Qaeda investigators were formally prohibited from sharing surveillance--derived intelligence information about terrorism suspects and plots with their law enforcement counterparts. And in late 2000, after federal prosecutors discovered a series of legally inconsequential errors and omissions in certain al Qaeda--related surveillance applications the FISA court had previously approved, the court's infamously prickly presiding judge, Royce Lamberth, appears to have had a temper tantrum ferocious enough to all but shut down the Justice Department's terrorism wiretapping program. "The consequences of the FISA Court's approach to the Wall between intelligence gathering and law enforcement before September 11 were extensive," the Joint Inquiry explained. "Many FISA surveillances of suspected al Qaeda agents expired because [Justice officials] were not willing to apply for application renewals when they were not completely confident of their accuracy." And new applications were not forthcoming, the result being that, at least by the reckoning of one FBI manager who testified before the intelligence committees, "no FISA orders targeted against al Qaeda existed in 2001" at all. Not one.