The Ashford Zone Blog

John Hindrocket of Powerline is a stanch defender of the Administration’s use of warrantless NSA wiretaps.  In this post, he writes an update:

OK, JUST ONE MORE THING: We’ve been getting emails from liberals who seem to think that the 72-hour provision of FISA makes the problem of speed disappear. I did a separate post on that issue above, titled "72 Hours: Who Could Ask For More?" I will say, briefly, that anyone who thinks that not only preparing an extensive application ab initio, but actually getting an order signed by a federal judge within 72 hours, is easy, is a person who has never practiced law in the federal courts.

[Emphasis mine].

It’s Hindrocket’s "separate post" and this issue that I wish to address.

Hindrocket lays out the statute (and so will I in a moment), and comes to the conclusion that it would may take  "days, sometimes weeks" to assemble a FISA application.

He further adds the following:

Anyone who thinks that it is easy for multiple lawyers and officials to collaborate on a set of documents, present them to a federal judge and have the judge sign the order within 72 hours has, I’m afraid, no experience whatever at obtaining orders from federal judges.

That may be (and probably is) true in John’s experience, but not in the real legal world.  Want a real world example?  In the 2000 Florida election debacle, teams of lawyers (for both sides) would research and generate 50+ page emergency briefs in a couple of days.  And those involved actual legal research, something not required by the FISA warrant application statute.  It can be done, and often is.

Let’s turn to the statute that Hindrocket claims is so onerous.  Now, it’s clear that the statute is lengthy and verbose and dry.  But don’t worry.  When you get rid of the excess verbiage, you will see that it is manageable.  In fact, it requires less information than a typical college entrance application.  Here it is:

(a) Submission by Federal officer; approval of Attorney General; contents

Each application for an order approving electronic surveillance under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 1803 of this title. Each application shall require the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application as set forth in this subchapter. It shall include—
(1) the identity of the Federal officer making the application;
(2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application;
(3) the identity, if known, or a description of the target of the electronic surveillance;
(4) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(5) a statement of the proposed minimization procedures;
(6) a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;
(7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate—
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801 (e) of this title; and
(E) including a statement of the basis for the certification that—
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques;
(8) a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;
(9) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application;
(10) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter; and
(11) whenever more than one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device.

Let’s break it down now.

(1) the identity of the Federal officer making the application

That’s the name and title of the federal officer.  Takes 30 seconds at best to supply that information.

(2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application

This is a cite to the relevant FISA statute(s).  This will be the same ones over and over again for any warrant.  It’s cut-and-paste.  Add another 30 seconds.

(3) the identity, if known, or a description of the target of the electronic surveillance

Another identity question.  Add another 30 seconds, less it the target’s identity is "unknown".

(4) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power

This is where it starts to get a little situation dependent.  Presumably, however, there exists information which leads the NSA to believe the target is worth surveilling.  The applicant here simply has to open the file (or talk to someone knowledgeable about the target), and gather the facts and circumstance.  This could take a few minutes, but to be overly generous, let’s say it takes two hours to marshall the facts and pull them together in a coherent form.

Guess what?  We’re one-third of the way through the application, and it’s not even lunchtime on Day One!

(5) a statement of the proposed minimization procedures

Here’s where you tell the FISA court what you are actually going to do (wiretap, etc.).  Since the procedure you are doing is one that you have done before, this is largely a matter of "cutting and pasting" from previous application, and editting if necessary as needed.  Total time: one hour.

(6) a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance

Again, you probably don’t have to reinvent the wheel with this one.  You simply have to inform the court of the nature and type of information you  hope to acquire.  Like "oral conversations pertaining to the possible transfer of weapons through one of several ports of the United States".  Only with some details, to the extent you know them.  We’ll gratuitously give ourselves three hours to compile and write this information.

We’re over halfway done with the FISA application.

(7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate—
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801 (e) of this title; and
(E) including a statement of the basis for the certification that—
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques

Wow.  That looks like a lot, but it really isn’t.  This is a certification.  Therefore, it is plain boilerplate language.  All you have to do is get the proper someone to sign the certification, the language of which is laid out in the statute itself ("I, Joe Smith, hereby certify that the information sought is foreign intelligence information", etc.).  You may have to put a staff assistant on this one, while you do other stuff, but it shouldn’t take him more than three hours.

(8) a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;

"The wiretap will be effected by placing an electronic recording device at the telephone switching station which processees the calls for the subject target’s phone.  The telephone switching station located at 10 Main Street, Baltimore, MD and is owned and operated by Alltel, Inc., who is cooperating in this surveillance.  No physical entry of the target’s premises is required."

Okay, I made that language up.  But it only took me two minutes.  And I didn’t have any go-bys.

(9) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application

Well, since the statute requires this information, I’m going to go on the assumption that FISA applications are kept on a searchable database, and this information can be coughed up.  If it can’t, then all you have to do is look at the latest FISA application, take the information compiled for Section (9) from that verbatim, and then update it.  Let’s be really gratuitous and say that it takes a staff assistant ten hours to do this, although really, it could take as little as ten minutes.

(10) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter; and

Because there is a contingency here, this is another variable factor.  Can anyone imagine that answering this part would take more than three hours?  Me neither.

(11) whenever more than one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device.

Okay.  Will if there is only one surveillance device, then this part takes no time to answer.  But let’s say the particular surveillance being applied for involves three devices.  No.  Let’s make it five.  It shouldn’t take more than five hours to answer this, right?

And there you have it.   We’re looking at roughly 24 hours to prepare the FISA application, assuming the worst case scenario.

And remember, this is AFTER the wiretapping has begun.

Now, Hindrocket’s post merges the distinction between preparing the application and having it approved.  He says, for example, that it may take weeks to "prepare and approve" the application.   And that may be so, when it comes to non-emergency applications.  But the notion that preparing the "emergency" application ties the hands of the Bush Administration is absolutely silly.  If there truly was exigent circumstances — an actual emergency — the approval process (I hope) would certainly be fast-tracked way ahead of routine warrant applications.

That’s just a small contribution to the dialogue.  I would love to take apart John’s argument (in the same post) that it is inconvenient for our intelligence agencies to worry about things like "probable cause", but that’s a separate matter altogether.

A little more than a week ago, the right-wingers heralded the results of a poll that they claimed showed a majority of Americans supporting Bush’s illegal warrantless wiretapping policy. Here’s what that poll found:

Sixty-four percent (64%) of Americans believe the National Security Agency (NSA) should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States.

Michelle Malkin used the poll results to suggest “America Is OK With NSA.” Redstate and the National Review also celebrated the results.

But there was a big problem with the poll question — it failed to say that President Bush was conducting the wiretapping without a warrant. Today, a new AP poll was released showing what Americans truly think of Bush’s policy:

56 percent of respondents in an AP-Ipsos poll said the government should be required to first get a court warrant to eavesdrop on the overseas calls and e-mails of U.S. citizens when those communications are believed to be tied to terrorism.

A Congressional Research Service report "concludes that the administration’s justification for warrantless eavesdropping authorized by President Bush conflicts with existing law and hinges on weak legal arguments," the Washington Post reports.

The 44-page report said that Bush probably cannot claim the broad presidential powers he has relied upon as authority to order the secret monitoring of calls made by U.S. citizens since the fall of 2001… The report also concluded that Bush’s assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force.

Powerlines’ John Hindrocket again displays his flair for sheer stupidity, trying desparate to argue that the CRS does not say what it says:

The CRS report, which you can access here, is 44 pages long. Yet the Post, apparently not wanting to confuse its readers by exposing them to the actual report, rather than Democratic politicians’ interpretations of it, quotes only two sentence fragments:

"It appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here," the authors of the CRS report wrote. The administration’s legal justification "does not seem to be . . . well-grounded," they said.

The Post’s coverage of the CRS report is deeply misleading. In fact, the CRS concluded:

Whether an NSA activity is permissible under the Fourth Amendment and the statutory scheme outlined above is impossible to determine without an understanding of the specific facts involved and the nature of the President’s authorization, which are for the most part classified.

So is the Post misleading, or is Hindrocket?

Hindrocket is misleading.  The sentence he quotes ("Whether an NSA activity is permissible…") is not the conclusion of the CRS report (as Hindrocket says) , but the beginning of the analysis in an introductory form.  In that quote, the authors are speaking in generalities (i.e, "whether an NSA activity is permissible" as opposed to "whether the NSA activity is permissible").

Unlike the introductory sentence, the immediately following sentences address the issue at hand:

If the NSA operations at issue are encompassed in the definition of "electronic surveillance" set forth under FISA, it would be consistent with Congress’s intent that such surveillance must be in accorandance with FISA procedures.

Then the coup de grace, in the next sentence:

Although section 109(a) of FISA does not explicitly limit the language "as authiirzed by statute" to refer only to Title III and to FISA, the legislative history suggests that such a result was intended.

After all the analysis, the report then concludes with the statement given in the Post, which reads in full:

From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here.

So, rather than quoting the conclusion of the report, Hindrocket merely quotes the FIRST sentence of the analysis, and passes it off as the conclusion.

If a report said:

"Whether it is day or night depends on the time of day.  If it is after 7:00 p.m., it is night.  Our analysis indicates it is 11:30 p.m. Therefore, it is night."

Hindrocket would write:

The report was inc0nclusive as to whether it was day or night:

"Whether it is day or night depends on the time of day."

John Hindrocket, who purports to be an attorney, is either acting stupid or being venel. 

RELATED:  Glenn Greenwald also rips apart another recent Hindrocket post.

Apparently, the controversy has forced the NSA to respond.  According to what the agency told CNN, nothing happened.

A senior U.S. intelligence official told CNN on Thursday that the National Security Agency did not target CNN’s chief international correspondent Christiane Amanpour or any other CNN journalist for surveillance.

The senior official said that from time to time NSA surveillance overseas "inadvertently" acquires recordings or copies of communications involving Americans — or what the government calls "U.S. persons," which includes most U.S. residents and employees of American companies. By law, however, such materials are required to be erased or destroyed immediately, the official said.

Okay.  So there it is.  If Amanpour communications were inadvertently picked up, the administration was required "by law" to destroy the information.

Of course, we given this administration’s views of the "law" and the occasions on which it is circumvented, I hardly find this reassuring.  Remember, Bush once assured a crowd that ALL wiretaps were obtained by warrants.  And he clearly was lying.

The Left Coaster has a handy compendium of the right-wing talking points regarding the illegal NSA wiretapping, and demonstrates why each is false.