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January 17, 2007



probable cause to believe that one of the communicants

And is the probable cause standard the same for the location of the communicant under suspicion?If the suspected member is the outside of party the probable cause standard might be vanishingly low.


(get me rewrite!) If the suspected member is the party outside of the US, the probable cause standard might be vanishingly low.

Lew Clark

Just maybe, since the NYT have notified their friends that their communications are being monitored, those friends have gone to other means of communication, less susceptible to monitoring. And, just maybe, NSA has notified the WH, that that well is dry. So why not defang the political talking point of "domestic spying" by abolishing a program that has been rendered useless by those "oh so patriotic" Americans at the AQ Times.


As I read it the court will do what the govt has itself been doing already--simply reviewing periodically the instances in which the eavesdropping has occurred to serve as a double check that the procedues are being properly followed.That is, the feds do not need to get prior approval but their work will be reviewed to be sure they are not overusing this in circumstances where it would not be proper.


Sure I'll explain it-to the extent Gonzalez can be believed (and I'm no Libby juror), the Administration has determined it can indeed comply with the FISA law- which requires a warrant.

They're doing so because they have a brand new check and balance-in (never)right-wing bloggerese: 'Congress will now be factchecking their ass'.

All Bush's past moaning and bitching that they never needed a warrant, terrorists will win if we make em get a warrant, nuclear bombs, etc. is relegated to the memory hole. If you spent any time defending them, you got played sucka. See Mark Levin for how any right winger with self respect should respond.

This is exactly why I voted Dem in 2006. Another great example of how spending more time on oversight and less on blind obedience would probably have kept Repubs in powers in the first place!

Mark Flowie

The NSA is going to cease to exist.

The charter won't be renewed.

It was the most effective tool the DOD has ever had and the FSB has always wanted this. The CIA analysts moved to DOD/NSA and now this. The leaks, Plame, Aimes, and Russians.

Putin is going to have a really big party!

Bill Arnold

My wild speculation is that "probable cause" in this case means the output of some algorithm (probably a simple algorithm) that the judge has pre-approved.

The current language,
"one of the communicants is a member or agent of Al Qaeda or an associated terrorist organization", is more definite language than I recall from the original debate.
For instance, Gonzalaz originally (last year) used language: "involving someone we reasonably believe is associated with al Qaeda,".
"member or agent of" is stronger language.


Oversight or giving the terrorists what they want?


Prof Kerr:
"I'm not entirely sure I know what to make of Attorney General Gonzales's letter today about the NSA surveillance program, but I wonder if I'm quirky in reading it possibly to mean that DOJ found a judge who was willing to approve the entire TSP program under FISA. Here's what the letter says:
a judge of the Foreign Intelligence Surveillance court issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization. As a result of these orders, any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the [FISC].
The letter also says that as a result of this development, the President no longer needs to and will not reauthorize the Terrorist Surveillance Program.

The Washington Post adds:
In a background briefing with reporters, Justice officials declined to provide details about how the new program will work — including whether the surveillance court has issued a blanket order covering all similar cases or whether it will issue individual orders on a case-by-case basis. Authorities also refused to say how many court orders are involved.
The officials said the new approach will offer the same benefits of the NSA program, along with the advantage of judicial oversight.
"There is no compromise to national security," one of the Justice officials said. "The objectives of the program haven't changed, and the capabilities of the intelligence agency to operate such a program haven't changed as a result of these orders."
If this does involve a blanket order approving the entire program, it would seem to be a very clever move by DOJ. It would achieve four things, as I see it. First, it would make the TSP program very difficult to challenge. I gather no one would have standing to appeal the FISC order to the FISA Court of Review; even if the FISC order is unlawful, it's unclear as a procedural matter how it could be challenged. Second, it might moot the pending NSA litigation, or at least render any opinion in that case of very limited consequence. Third, it puts the Administration in the position of having obtained a court order, so that even if the order is unlawful it's "the judge's decision" rather than the Executive's. And fourth, it might help persuade the press to focus elsewhere; the press would be sure to present this as a concession to the Administration's critics (as the N.Y. Times did today), and the press is likely to be much less interested after they think the Administration has backed down.

Of course, whether this is true depends on whether the Admnistration obtained some kind of blanket order or plans to get orders on a case-by-case basis. And it's unclear when or if we'll know which occurred."



Bill Arnold-

What if their Al Qaeda membership card has expired or they haven't paid their dues....yet?


There is a sense that the administration got a ruling from a FISA judge comparably favorable as in the sealed case but directly on point. IOW unless congress can bump it up to SCOTUS or pass a newer version of FISA they're out of the picture.


Yes--that's how I read it.

Mark Flowie

Al Quaeda, Al Gore, Al Gonzalez?


Guess that pretty much wiped out the opportunities for Patrick Leahy to subpoena Bush adm for more hearings and investigations. AJStrata has a good writeup about it. Looks like he's happy about it.

boris, looks like you're right that this program still exists but under a new name and the Democrats cannot do anything about it unless they take it up with SCOTUS (which they will end up losing the case) or modify FISA but could be subjected to Bush's veto.

Game, set, match. Bush wins this one.

Bill Arnold

What if their Al Qaeda membership card has expired or they haven't paid their dues....yet?
OK. Wild speculation again. Here's one way it could work:
(A) Judge pre-approves listening in on all intercepts where one endpoint is (i) outside the US, and (ii) a member or agent of AQ or an associated terrorist organization. Furthermore, judge provides a crystal clear formula for determining (ii), with little room for wriggling.
(B) For other cases, the government goes through the FISA process.
(C) The list of members of set (ii) is reviewed periodically and frequently, with new members added, and very rarely, old members removed (e.g. if they are confirmed dead).


Let's hope AQ interprets this, and why wouldn't they the way the MSM is spinning it, as an end to the surveillance, and they return to prior methods of 'chattering".


Well, my guess would be that the Administration is having the FISA Court of Review signing off on the 90 day periodic reviews that the JoD has been doing.


Sorry, DoJ, not JoD.


Its probably a combination of things, what Boris said, what Ranger said, what Orin Kerr is saying. They've gotten the approval they needed through the FISA court...but the original program probably died as it was constituted when the media leaked it, or even when they found out reporters had gotten wind of it.

I mean "died" in the sense of having been reinvented elsewhere under a new name with fancier new equipment doing better, more, etcetera. Its probably a joint US - Brit program based in Barbados now with $15 billion in supercomputers.


The NRO hates it? They are like Mikey, they hate everything. Those people are always acting like their hair is on fire.

My understanding was that the President had to sign an executive order every 45 days to keep this program alive. He is not going to be president forever, maybe the administration found a way to keep the program intact and functioning without the executive order or the constant threats of ending it.

The Democrats got their oversight and so they can claim some kind of victory. And we all now how important it is to Democrats to puff up like toads and strut.


along with the advantage of judicial oversight.

Somehow, I don't see that as an automatic advantage.



Well there has always been judicial overview at the FISA. If AG is correct and they are willing to continue to do the surveillance on people contacting people here in the US as long as one party has ties to terrorism then it is basically the same system. We have to remember that the Bush administration will not always be the people in charge anyway. If they can not find a way to keep this program alive it might well cease to exist when Bush leaves office. I can not see President Obama signing an executive order like this every 45 days.

Bruce Hayden

I agree with posters who suggested that it was a combination of things.

The primary problem all along has been that conforming to the letter of FISA would have made the TSP undoable, due to how slow and cumbersome the warrant approval process was (even using the Emergency Orders provision). Contrary to all the hype from those opposing the program, it wasn't to be able to surveil anyone the Administration wanted - that sort of abuse of power was the sort of thing that the Clinton Administration would do, and that claim about this Administration has always struck me as a serious case of projection. Rather, it was always, according to most of what the Administration (esp. Gonzales) said, speed and flexibility. Enough oversight to pretty much guarantee that the program wasn't being abused was always acceptable to the Administration.

In any case, it appears that the FISA court has somehow jumped on board, since it appears that the program can now be run with oversight, as opposed to the requirement for meeting the minimization requirements for each and every surveilance. Either that court has found that FISA doesn't cover the TSP, or that oversight is sufficient (maybe with them doing it).


Terye. You may very well be correct. The Libs have consistently underestimated Bush, and by spinning every Bush win as a loss, they have wound up letting a lot of programs go through on Bush's terms. I hope they've found a way to keep this program active. I think we'll need it beyond February 09.


In any case, it appears that the FISA court has somehow jumped on board,

The FISA court got it's power back. Which is probably what this was about all along. More beauracratic infighting. It would be nice if folks could put the good of the country ahead of political advantage.

Florence Schmieg

Terrye, Your comments about NRO are priceless and so accurate. They are a very reactive and somewhat hysterical bunch. The Freepers were like that yesterday too. Not ten seconds after reading a Drudge headline and they are all freaking out. They don't wait to see what the facts are or attempt to do any analysis. They make me ashamed to be a conservative sometimes. Of course, I am sure they could care less about my opinion. I find I agree with you almost all the time.



Why think yu ma'am. I never ead Drudge anymore and I limit my time in front of cable news. Cuts down on the confusion.

Sometimes there are more important things than partisan politics. Like Reagan said, half a loaf is better than starving.

Bill Arnold

From Volokh, And the Washington Post says that "Four other people who have been briefed on the program, who spoke on the condition of anonymity because the program is classified, described it as a hybrid effort that includes both individual warrants and the authority for eavesdropping on more broadly defined groups of people."

Bill Arnold

Here's another quess about the program - a Judge's pre-approval of a carefully described part of the program probably means that a fairly simple algorithm is involved for describing the communications which have pre-approval for human listening, for example a very simple decision tree with unambiguous and hard-to-game inputs. This would sit well with a judge used to parsing similar logic professionally.

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