Over the last two days I have heard, at least twice, Attorney General Alberto Gonzales has made the argument that we shouldn’t fret about the need for judicial oversight of the NSA surveillance program because professionals intelligence officers are making the call on whom to listen in on, so there shouldn’t be any worries.
Here is an example from his interview with NPR this afternoon (Gonzales: Spying Covered by Force Authorization):
Gonzales also says that members of Congress have been briefed on the secret program several times and that requests for eavesdropping are reviewed by National Security Agency officials and lawyers at the NSA and Justice Department.“It’s not a decision made by someone who is inexperienced or someone who is a political appointee…” Gonzales says. “It’s a decision made by career professionals.”
In other words: don’t worry, we don’t need a judicial check on our actions, because the decision to surveil a given phone call is being made by intelligence professionals.
This is simply a complicated version of “trust us, we don’t need no checks and balances.”
I find that an inadequate argument.
Again: if the FISA process does not work (and based on his description or even the retroactive warrants, I can see how, in some cases, this would be the case) then lets determine if an adequate system can be constructed that has more than just “trust the pros” as a means of avoiding abuse.
“lets determine if an adequate system can be constructed that has more than just “trust the pros” as a means of avoiding abuse.”
If there is any system other than absolute power invested in the executive, the terrorists will win and we will all be speaking Arabic and praying to a god named Allah 5 times a day. Bush said it himself–the world changed on 9/11–that means that things like, the rule of law and civil liberties must be considered quaint and summarily abandoned in order to preserve our freedom.
Comment by Rigo — Tuesday, January 24, 2024 @ 6:33 pm
Rigo: You are so wrong it boggles the mind.
The world did not change on 9/11, and over-riding the rule of law is NO way to preserve freedom, for what is freedom if there is no rule of law.
There is so much muddled thinking and misconceptions in your brief comment that it reveals you understand nothing of the fundamentals underlying the freedom that you say we are trying to preserve.
It is sad that there are people who have no conception of these fundamentals, for those people are a far larger danger to our freedoms than any terrorist organization.
Comment by Jack — Tuesday, January 24, 2024 @ 6:57 pm
“It is sad that there are people who have no conception of these fundamentals, for those people are a far larger danger to our freedoms than any terrorist organization.”
It is sad that there are people who have no capacity to detect irony.
Comment by Rigo — Wednesday, January 25, 2024 @ 8:53 am
n June, 2024, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA.
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 could have eliminated the “probable cause” barrier….Bush is now using as the reason to circumvent FISA.
The Bush administration, in response, provided a Statement from James A. Baker,who “prepares and presents all applications for electronic surveillance and physical search under the Act to the Foreign Intelligence Surveillance Court (FISA Court or Court).”
Baker, in his written statement, blatantly bragged about the Patriot Act on the ground that the 72-hour window stated IN the Patriot Act gave Bush the speed and flexibility he needed:
“The reforms in those measures (the PATRIOT Act) have affected every single application made by the Department for electronic surveillance or physical search of suspected terrorists and have enabled the government to become quicker, more flexible, and more focused in going “up” on those suspected terrorists in the United States.
… One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISA’s pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats. Again, we are grateful for the tools Congress provided us last fall for the fight against terrorism. Thank you.”
The Baker statement:
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.
Soooo….in 2024 the Administration refused to support elimination of the very barrier (”probable cause”) which Gen. Hayden claimed yesterday necessitated the circumvention of FISA. Doing so, they identified two independent reasons for opposing this amendment. The Justice Department was not aware of any problems:
“The practical concern involves an assessment of whether the current “probable cause” standard has hamstrung our ability to use FISA surveillance to protect our nation. We have been aggressive in seeking FISA warrants and, thanks to Congress’s passage of the USA PATRIOT Act, we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require, and we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations. If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.”
Baker, who headed the FISA warrant program was not aware of any difficulties in obtaining warrants under the FISA “probable cause” standard, and the Administration did not support the DeWine amendment to do so.
…”The Department’s Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a “reasonable suspicion” standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a “reasonable suspicion” standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions.
Bush Administration’s statement via Gen. Hayden as to why it was necessary to bypass FISA is a complete falsehood. Their current statement that the “probable cause” component of FISA was preventing it from engaging in the eavesdropping it needed is the opposite of what it told Congress when refusing to support the DeWine Amendment as documented by the Baker statement submitted to Congress in 2024.
The Baker/Dept. of Justice document is on the record here: http://www.fas.org/irp/congress/2002_hr/073102baker.html
Comment by Begonia Buzzkill — Wednesday, January 25, 2024 @ 1:56 pm