Wednesday, May 17, 2006
By Steven L. Taylor

Via the AP (Hatch: Court Briefed on Bush Surveillance) we find that

Two judges on the secretive court that approves warrants for intelligence surveillance were told of the broad monitoring programs that have raised recent controversy, a Republican senator said Tuesday, connecting a court to knowledge of the collecting of millions of phone records for the first time.

So, that settles it, right? Two FISA judges were told, so that fixes the oversight issue, yes?

Well, no so fast:

Orrin Hatch, R-Utah, said that at least two of the chief judges on the Foreign Intelligence Surveillance Court had been informed since 2001 of White House-approved National Security Agency monitoring operations.

“None raised any objections, as far as I know,” said Hatch, a member of a special Intelligence Committee panel appointed to oversee the NSA’s work.

Hatch made the comment in answering a question in an interview about recent reports of the government compiling lists of Americans’ phone calls. When pressed later, Hatch suggested he was also speaking broadly of the administration’s terror-related monitoring.

Asked if the judges somehow approved the operations, Hatch said, “That is not their position, but they were informed.”

First, Hatch doesn’t really know exactly what the judges in question said about the program. However, and far more to the point: they were not asked to rule on the program, and warrants were not requested from them. They were simply “informed.”

That does not qualify as oversight. This is quite similar to what we learned about the NSA wiretapping program: that some members of the Congress had been “informed.”

To inform other members of other branches is better than nothing, but to do so outside their institutional powers is hardly enough to say that there is oversight in place. Congress has to be dealt within the committee process and courts have to be dealt with in terms of actual rulings.

Neither of those situations seem to be in place in any of these NSA programs.

Further, it should not be up to the executive branch to determine whom the “appropriate” persons are to inform (to use General Hayden’s word from last week).

Also commenting (and he is far more assuaged by this news than am I): Ed Morrissey.

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