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Domestic Spying Program to Get Judicial Oversight

Posted by samzenpus on from the who-watches-the-watchmen dept.

Alchemist253 writes "The U.S. Justice Department has consented to court oversight (albeit via a secret court) of the controversial domestic wiretapping program (the "Terrorist Surveillance Program") previously discussed at length on Slashdot. From the article, "[oversight] authority has been given to the Foreign Intelligence Surveillance Court and [it] already has approved one request for monitoring the communications of a person believed to be linked to al Qaeda or an associated terror group.""

20 of 151 comments (clear)

  1. So it was 100% legal before ... by khasim · · Score: 5, Insightful

    ... but with a different Congress ... suddenly it's going back to the court with warrants and everything?

    Makes you kind of wonder how "legal" it was in the first place. And whether this is just an attempt to avoid an investigation.

    1. Re:So it was 100% legal before ... by Anonymous Coward · · Score: 4, Interesting

      It was not legal to begin with. These kinds of warrants specifically require the oversight of the FISA court. All warrants require the oversight of the judiciary (by definition). When a specific set of Federal law statutes tell the Executive branch they can do certain Fourth Amendment searches only under the review of a specific court, the Executive branch damn well better comply. If George Bush does not end up in prison for this clear violation of United States Federal law (and numerous American's rights under the Constitution of the United States) you can officially call the Consitution "just a piece of paper" because it no longer has any meaning. But I think that may have been the intent of this administration to begin with.

    2. Re:So it was 100% legal before ... by mrogers · · Score: 5, Insightful

      By backing down they don't just avoid an investigation, they avoid testing the legality of the program. That could be useful if they want to reinstate the program under the next Congress. But more importantly, the claims about wartime Presidential powers that were used to justify the wiretapping program are still being used to justify other questionably legal actions (perhaps even including the covert expansion of the Iraq war into Iran and Syria). The administration wants to avoid a direct court battle over those powers, and by backing down over the wiretapping program it's hoping to pacify Congress without establishing any precedents.

    3. Re:So it was 100% legal before ... by Omestes · · Score: 3, Insightful

      And the alternative is?

      It seems that the American constitution HAS worked rather well in its 200+ year history, sure there are some small glitches from time to time, like McCarthy, and now. But on the whole it has worked, only one superfluous amendment (added, promptly deleted). The strength of it is that it is a living document, meaning its interpretations are supposed to change with the times, arguing about it is a good things. Imagine if it was fixed, the word has changed much in the last 200 years, including people, their values, and what they judge important.

      The constitution is the only thing America has going for it, and the only real hope it has.

      --
      A patriot must always be ready to defend his country against his government. -edward abbey
    4. Re:So it was 100% legal before ... by omeomi · · Score: 3, Insightful

      usually ascribed to by liberals who cannot achieve their will through the legislative process. It is this philosophy that has lead to the incredible divisiveness that currently infects the US.

      So the current mess we're in is the liberals fault?

      Yeah, right. Pull the other one...

      --
      ZuluPad, the wiki notepad on crack
  2. like the?? by Amouth · · Score: 3, Interesting

    "or an associated terror group" so someone like anyone that doesn't like them.. i see

    --
    '...if only "Jumping to a Conclusion" was an event in the Olympics.'
  3. But what about the illegal wiretapping? by guspasho · · Score: 4, Interesting

    Who's to say that the administration that has been openly breaking the law for years hasn't just created another hidden illegal program and shifted their illegal activity to that?

    1. Re:But what about the illegal wiretapping? by Wavicle · · Score: 4, Interesting

      The President has clearly said he is not breaking the law, and despite what the liberal media is telling you, each and every wiretap still requires an warrant

      I'm lost. Are you being sarcastic? Normally I'd think it obvious that this was tongue in cheek, except your nickname makes a Rush reference.

      Is the United States Department of Justice, a department headed by an appointee of the president, also part of the liberal media? So when they wrote "This constitutional authority includes the authority to order warrantless foreign intelligence surveillance within the United States"?

      The entire executive branch, and much of the republican congress, has said it/they believe that the president has the authority to authorize warrantless wiretaps and furthermore he has done so.

      --
      Education is a better safeguard of liberty than a standing army.
      Edward Everett (1794 - 1865)
    2. Re:But what about the illegal wiretapping? by Ardeaem · · Score: 5, Informative

      The President has clearly said he is not breaking the law, and despite what the liberal media is telling you, each and every wiretap still requires an warrant

      Here you go, about half-way down at www.whitehouse.gov/news/releases/2004/04/20040420- 2.html

      Bush said this BEFORE he got caught doing wiretaps without warrants. I agree, wiretaps DO require warrants, but Bush has claimed that he doesn't need them (the quote in the parent post not withstanding) and he authorized a program of domestic spying without warrants. If you don't recall this, you are woefully uninformed.

      Since you think the "liberal media" may be lying to you, how about a court decision regarding the program? The first TWO SENTENCES reveal that 1. the program exists and 2. the administration does not dispute that is exists. http://fl1.findlaw.com/news.findlaw.com/nytimes/do cs/nsa/aclunsa81706opn.pdf [pdf link]

      People that ignore facts on the basis that they were reported by the "liberal media" confuse me. About 2 seconds of research are all that is required to confirm much of this stuff. If you ignore facts because they came from the "liberal media" you are part of the problem; people in power can sit back and do what they like realizing that you are going to take what they say at face value and not take advantage of the resources at your disposal (the media) to see that they are lying.

      Now, since you quoted Bush directly saying that wiretaps require warrants (in 2004), and I have linked to you a court document which reveals that Bush authorized warrantless wiretaps in 2002, what does this mean, logically? He lied, plain and simple. You don't even need the media, the government's own documents the lie.

  4. About %@!#% time! by Kelson · · Score: 3, Insightful

    If they'd just gone through court procedures in the first place (it's not like it's difficult to get a FISA warrant), there wouldn't have been such a controversy in the first place.

    Ironically, it wouldn't surprise me at all to find that the administration's insistence last year that they didn't need judicial overview contributed to the electoral frustration that cost the Republicans control of Congress.

    1. Re:About %@!#% time! by thule · · Score: 3, Informative

      But they did get a FISA warrant. The FBI would have to get the FISA warrant if the NSA generated a lead on the domestic side of the tapped communication. The domestic side wasn't the TARGET of the tap. Thus the NSA never needs a warrant. This has always been the case.

      You call can be tapped without a warrant if you call some criminal suspect. That is because the TARGET of the tap is not you, the suspect is. This is how the TSP worked. The targets if the NSA taps were outside the US and considered part of the battlefield. If they needed to follow up domestically the FBI would get the information from the NSA and start their own investigation.

      This ruling expands the program and does not require the FBI to further the investigation. The FISA will grant the warrant based purely on NSA intel.

  5. For more information: by the_REAL_sam · · Score: 5, Informative

    This link explained alot for me. Too bad it's a secret court, but it's better than no court, and at least it's a court within the judicial branch of the federal government.

    http://www.fjc.gov/history/home.nsf/page/fisc_bdy! OpenDocument&Click=


    Foreign Intelligence Surveillance Court

    Congress in 1978 established the Foreign Intelligence Surveillance Court as a special court and authorized the Chief Justice of the United States to designate seven federal district court judges to review applications for warrants related to national security investigations. Judges serve for staggered, non-renewable terms of no more than seven years, and must be from different judicial circuits. The provisions for the court were part of the Foreign Intelligence Surveillance Act (92 Stat. 1783), which required the government, before it commenced certain kinds of intelligence gathering operations within the United States, to obtain a judicial warrant similar to that required in criminal investigations. The legislation was a response to a report of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (the "Church Committee"), which detailed allegations of executive branch abuses of its authority to conduct domestic electronic surveillance in the interest of national security. Congress also was responding to the Supreme Court's suggestion in a 1972 case that under the Fourth Amendment some kind of judicial warrant might be required to conduct national security related investigations.
    Warrant applications under the Foreign Intelligence Surveillance Act are drafted by attorneys in the General Counsel's Office at the National Security Agency at the request of an officer of one of the federal intelligence agencies. Each application must contain the Attorney General's certification that the target of the proposed surveillance is either a "foreign power" or "the agent of a foreign power" and, in the case of a U.S. citizen or resident alien, that the target may be involved in the commission of a crime.
    The judges of the Foreign Intelligence Surveillance Court travel to Washington, D.C., to hear warrant applications on a rotating basis. To ensure that the court can convene on short notice, at least one of the judges is required to be a member of the U.S. District Court for the District of Columbia. The act of 1978 also established a Foreign Intelligence Surveillance Court of Review, presided over by three district or appeals court judges designated by the Chief Justice, to review, at the government's request, the decisions the Foreign Intelligence Surveillance Court. Because of the almost perfect record of the Department of Justice in obtaining the surveillance warrants and other powers it requested from the Foreign Intelligence Surveillance Court, the review court had no occasion to meet until 2002. The USA Patriot Act of 2001 (115 Stat. 272) expanded the time periods for which the Foreign Intelligence Surveillance Court can authorize surveillance and increased the number of judges serving the court from seven to eleven.

    --
    "Forgive us our trespasses, as we forgive those who trespass against us." -Jesus Christ The Lord's Prayer
    1. Re:For more information: by SpaceLifeForm · · Score: 4, Interesting
      Did you know that Chief Justice John Roberts has the role of appointing the Judges that sit on the FISA court?

      Did you know that Chief Justice John Roberts also has the role of appointing the Judges that sit on the FISA Review Panel?

      Link

      It makes me wonder if a new judge was appointed to FISA recently.

      --
      You are being MICROattacked, from various angles, in a SOFT manner.
    2. Re:For more information: by Martin+Blank · · Score: 3, Informative

      Possible but not likely. However, one term on the FISC (Claude Hilton) is due to expire in 2007. Two more are set for next year, two for 2009, one in 2010, two in 2011, one in 2012, and two in 2013 for the FISC. The Court of Review has vacancies coming in 2008, 2010, and 2012. All terms expire on 18 May of their respective years. All current judges would have been appointed by Rehnquist before he died.

      Foreign Intelligence Surveillance Court 2006 Membership

      --
      You can never go home again... but I guess you can shop there.
  6. Not good enough by schwaang · · Score: 5, Insightful

    1. It sounds like they won't be pulling NSA cables out of the AT&T (and other) facilities. They're just claiming to use them under FISA now. This wired blog raises some interesting questions about this.
    2. During Attorney General Gonzales' previous congressional testimony on this topic, he was very careful and lawerly in asserting that his statements only applied to the program under discussion, that is the "Terrorist Surveillance Program". The clear implication is that there are other programs besides TSP which have not seen the light of day.

    In short, don't let this stop the oversight hearings.

    1. Re:Not good enough by Jherek+Carnelian · · Score: 4, Funny

      2. During Attorney General Gonzales' previous congressional testimony on this topic, he was very careful and lawerly in asserting that his statements only applied to the program under discussion, that is the "Terrorist Surveillance Program". The clear implication is that there are other programs besides TSP which have not seen the light of day.

      Yes, AT&T is still working on their, "Terrorist Friends and Family Surveillance Program." Spy on all the friends and family of a suspected terrorist that you want to for just one, low-cost, secret warrant!

  7. It still won't be traditional warrants by the+Gray+Mouser · · Score: 3, Insightful

    Which is a good thing.

    First they need to troll through all the communication looking for patterns. Once they find something, then they can eavesdrop specific targets and go for a warrant.

    But you don't know what you're looking for until you find it.

    It sounds like not much is changing really, except FISA has given the ok to the datamining.

  8. Not so much... by StevenMaurer · · Score: 4, Informative

    According to his letter, Gonzalez hasn't actually subjected the program to judicial oversight. What he's done is gone judge-shopping to find a single judge to declare the entire program authorized.

    The problem is, that's not how warrants work. Warrants have to be specific and time limited - to avoid exactly the behavior that Gonzalez in engaging in: blanket invasion into the privacy of all Americans without any legitimate reason to think they're doing anything wrong.

    Remember: the laws we have on civil liberties aren't there to protect the guilty. They're there to protect the innocent, namely us.

  9. Re:THIS PROGRAM MUST END! by kevin_conaway · · Score: 3, Insightful
    FUCK OVERSIGHT! I want this program OVER. Unless I am an actual proven threat in a court of law, there should be nobody listening to anything I'm doing.

    Thats what they're doing. Agency X goes to the FISA court (a court of law mind you) and with A, B and C pieces of information showing that you are a "threat" and that they would like a warrant on you.

  10. this is pre-911 thinking by Adult+film+producer · · Score: 3, Funny

    and it's gonna get us killed, whether you like it or not. We are more vulnerable now that investigators have to wade through the legal system. If you've seen the latest episode of 24, you'll know what I'm talking about, a nuclear attack on an american city. With the appropriate monitoring systems in place, that would have never happened on the show but they were hamstrung like the FBI and NSA is today. Blame the leftists and the god damn liberals for the terror that will befall us :(