Tracing the legal trickery behind secret wiretaps

Immobilized by the flu, I've had some time to read further into the legal arguments behind the secret wiretaps we've been hearing so much about. The Bush Administration has been adamantly insisting that its secret wiretaps are necessary and legal. The problem with the necessity claim is, simply, the existence of the Foreign Intelligence Surveillance Act (FISA). As Marty Lederman at Balkinization recalls, "the Nation had exactly this debate in the mid-70s -- after gross abuses in connection with such warrantless surveillance -- and the legislature and Executive agreed to enact FISA, a statute regulating such warrantless surveillance."

When asked why FISA was not adequate, Attorney General Alberto Gonzales argued that it did not afford the administration necessary "speed and agility." Yet, FISA allows for immediate warrantless electronic surveillance as long as a warrant is sought within three days.

Former CIA lawyer and legal counsel for House and Senate intelligence committees, Suzanne Spaulding, raises another good point:


if administration officials believed they faced a scenario in which the FISA standard could not be met, they could have sought to amend the statute, as they have done several times since the law's enactment in 1978. Several such amendments, for example, were contained in the 2001 Patriot Act.
According to Attorney General Gonzales, the administration considered this. When asked why they didn't pursue legal outlets, Gonzales boldly stated, "We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be - that was not something we could likely get." The FISA standard requires simply that "the government to have probable cause to believe that the target of the surveillance is an agent of a foreign power, which includes terrorists and spies." Here's a fact for you: since 2001, FISA judges have reviewed some 5,645 applications and rejected only four. Which makes you wonder what justifications (or lack thereof) the administration felt would be turned down by FISA courts.

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