Bush Admin Fumbling the NSA Pushback

From Reuters:

A top U.S. intelligence official on Monday said President George W. Bush's warrantless spying program was necessary because the war on terrorism has rendered laws governing electronic surveillance ineffective.

As part of a high-profile White House campaign to defend the controversial program, former National Security Agency director Air Force Gen. Michael Hayden said eavesdropping was not as wide-ranging as has been described by critics who say Bush may have overstepped his authority by authorizing it.

"This isn't a drift net out there where we're soaking up everyone's communications," said Hayden, who is now principal deputy to U.S. intelligence chief John Negroponte.

"This is hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda," he said in remarks delivered at the National Press Club.

Now the Washington Post has the full transcript of Hayden's statement - and going through it helps establish exactly what the NSA and Administration have been thinking and doing. First he notes that the 9-11 highjackers would not normally have been targeted by NSA surveillance.

Hayden: The American SIGINT system, in the normal course of foreign intelligence activities, inevitably captures this kind of information, information to, from or about what we call a U.S. person. And by the way, "U.S. person" routinely includes anyone in the United States, citizen or not.

So, for example, because they were in the United States -- and we did not know anything more -- Mohamed Atta and his fellow 18 hijackers would have been presumed to have been protected persons, U.S. persons, by NSA prior to 9/11.

Technically most of the 19 highjackers were in the U. S. illegally using expired visas - and it's fair to note the NSA wouldn't normally know their immigration status that alone is no excuse to violate FISA. With a FISA Warrant these persons could be tapped at will, but the Catch-22 of the situation is that the FISA court will not accept evidence to begin a surveillance based on evidence that clearly comes from an unwarrant tap. Basically these persons have to be identified via non-NSA means (such as an FBI FISA application) in order for NSA to tap them.

There were in fact two NSA domestic spying programs, one which began almost immediately after Bush was elected as directed by Dick Cheney along with Hayden and one directed by the President.

<>Cheney's plan is described here:

... NSA started receiving numerous requests from Cheney and other officials in the state and defense departments to reveal the identities of the Americans blacked out or deleted from intelligence reports so administration officials could better understand the context of the intelligence.

Separately, at this time, Cheney was working with intelligence agencies, including the NSA, to develop a large-scale emergency plan to deal with any biological, chemical or nuclear attack on US soil.

Requesting that the NSA reveal the identity of Americans caught in wiretaps is legal as long as it serves the purpose of understanding the context of the intelligence information.

But the sources said that on dozens of occasions Cheney would, upon learning the identity of the individual, instruct the NSA to continue monitoring specific Americans caught in the wiretaps if he thought more information would be revealed, which crossed the line into illegal territory.

Cheney advised President Bush of what had turned up in the raw NSA reports, said one former White House official who worked on counterterrorism related issues.

"What's really disturbing is that some of those people the vice president was curious about were people who worked at the White House or the State Department," one former counterterrorism official said. "There was a real feeling of paranoia that permeated from the vice president's office and I don't think it had anything to do with the threat of terrorism. I can't say what was contained in those taps that piqued his interest. I just don't know."

So we've established that sharing the names of U.S. Persons indentified by normal NSA surveillance with other U.S. Agencies was illegal. I've posted previously about this attempt to share data in the days soon after 9-11 and the resulting revolt it generated with the halls of NSA.

QUESTION: Sam Husseini from IPA Media. You just now spoke of, quote, "two paths," but of course the FISA statute itself says that it will be the exclusive means by which electronic surveillance may be pursued. Are you not, therefore, violating the law?

GEN. HAYDEN: That's probably a question I should deflect to the Department of Justice, but as I said in my comments, I have an order whose lawfulness has been attested to by the attorney general, an order whose lawfulness has been attested to by NSA lawyers who do this for a living. No, we're not violating the law.

The second plan, which was authorized by the President after 9-11, allows for NSA surveillance and the sharing of targeted U.S. persons without using the FISA court. Probable Cause is required (by the 4th Amendment) to be presented to the FISA court, prior to the issuance of a warrant - and it appears that a lack of probable cause as well as the illegal sharing of "protected names" may have been the prime justification for the Presidents action based on questions put to Hayden during his statement.

QUESTION: General Hayden, the FISA law says that the NSA can do intercepts as long as you go to the court within 72 hours to get a warrant.

I understood you to say that you are aggressively using FISA but selectively doing so. Why are you not able to go to FISA as the law requires in all cases? And if the law is outdated, why haven't you asked Congress to update it?

GEN. HAYDEN: Lots of questions contained there. Let me try them one at a time.

First of all, I need to get a statement of fact out here, all right? NSA cannot -- under the FISA statute, NSA cannot put someone on coverage and go ahead and play for 72 hours while it gets a note saying it was okay. All right? The attorney general is the one who approves emergency FISA coverage, and the attorney general's standard for approving FISA coverage is a body of evidence equal to that which he would present to the court. So it's not like you can throw it on for 72 hours.

So basically, you have to have a everything sufficient to justify probable cause in order to apply an Emergency Tap, in the expectation that you will eventually have to go before the FISA with the evidence supporting your claim. The 72-hour time window doesn't work for you when you can't meet probable cause. Moving on to the last question:

QUESTION: Jonathan Landay with Knight Ridder. I'd like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use --

GEN. HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure.

QUESTION: But the --

GEN. HAYDEN: That's what it says.

QUESTION: But the measure is probable cause, I believe.

GEN. HAYDEN: The amendment says unreasonable search and seizure.

QUESTION: But does it not say probable --

GEN. HAYDEN: No. The amendment says --

QUESTION: The court standard, the legal standard --

GEN. HAYDEN: -- unreasonable search and seizure.

QUESTION: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "we reasonably believe"; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, "we have probable cause." And so what many people believe -- and I'd like you to respond to this -- is that what you've actually done is crafted a detour around the FISA court by creating a new standard of "reasonably believe" in place in probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?

GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.

Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable.

The problem with Hayden's statement, and apparently with version two of the NSA Surveillance programs is this:

Routh Amendment of the U.S. Constitution: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

More analysis on this subject from georgia10 on Dkos.

The admission that Bush's spying program uses a "reasonable suspicion" standard rather than a "probable cause" standard is explosive and damning. Why? Because the Bush administration knew--indeed, took the position--that a reasonable suspicion standard with respect to non-U.S. citizens was probably unconstitutional. Yet the administration now applies that same unconstitutional standard to United States citizens?

In the summer of 2002--well after Bush's spying program was already secretly implemented- the Senate Select Committee on Intelligence held a hearing on the DeWine amendment. (Hearing Report PDF) What transpired at that hearing proves that the Bush administration (a) knew that wiretaps of United States citizens are, pursuant to the Constitution, always subject to a probable cause standard; and (b) Congress explicitly rejected a lower standard for non-U.S. citizens.

DeWine himself limited his amendment to apply only to non-U.S. citizens, recognizing that "we must be cautious not to endorse an overly permissive use of the surveillance powers of FISA." The Committee heard testimony from the administration's top lawyers, and from top legal scholars in the field of eavesdropping and criminal law.

James Baker was then counsel for intelligence policy at the Department of Justice and head of the Office of Intelligence Policy and Review, which is the office that prepares and presents to the FISA court "all the applications under the FISA Act for electronic surveillance and physical search of foreign powers and their agents." If there was any expert on FISA warrant and applications at the time, it was Baker. He began his testimony by praising the PATRIOT ACT FISA changes, testifying as follows:

In my view, the changes have allowed us to move more quickly and more effectively and to also be more focused in our approach in dealing with the kinds of threats that Mr. Bowman made reference to. So we at the Department are grateful for the changes that Congress made in the statute, because I believe they've been important and have been employed effectively.

No word of how "ineffective" FISA is there.

Indeed, the problem here isn't with FISA, including the 72 hour post-hoc feature, it's with a demonstrably lowering of the bar from probably cause to the "reasonable suspicion" standard. The most telling answer Hayden gave was to the question of whether the Administration political opponents were being targeted for NSA surveillance, presumably under the "reasonable suspicion" standard rather than the legal and constitutional "probable cause".

QUESTION: No, I asked, are you targeting us and people who politically oppose the Bush government, the Bush administration? Not a fishing net, but are you targeting specifically political opponents of the Bush administration? Because as Vice President Gore recently said, "It is much worse than people realize."

Hayden didn't answer the question, and when you note that this entire process began with the Vice President using NSA to spy on White House and State Deptartment personnel, it seems obviuos that if they can brazenly do that, what's to stop them from spying on an anti-war anti-Bush outfit like World Can't Wait?

Looks like Wayne Madsen might just not be ready for that tin-foil hat after all.

Meanwhile, Alberta Gonzales has been getting the raspberry on his barnstorming tour in support of the Presidents policies, as law students turn their back on him

WASHINGTON (AP) — Attorney General Alberto Gonzales defended the Bush administration's domestic spying program Tuesday and suggested that some critics and news reports have misled Americans about the breadth of the National Security Agency's surveillance.

		Members of the audience stand up and turn their backs on Gonzales as he speaks.
		By Charles Dharapak, AP

Gonzales said the warrantless surveillance is critical to prevent another terrorist attack within the United States and falls within President Bush's constitutional authority and the powers granted by Congress immediately following the Sept. 11, 2001 terrorist attacks. (Related video: More from Gonzales)

At a Georgetown Law School Forum, Gonzales said the nation needs "to remember that ... it's imperative for national security reasons that we can detect reliably, immediately and without delay" any al-Qaeda related communication entering or leaving the United States.

As he spoke, more than a dozen audience members stood silently with their backs turned to the attorney general. Outside the classroom where Gonzales was to speak, a pair of protesters held up a sheet that said, "Don't torture the Constitution."

If they keep this up, this entire NSA Pushback might do just about as well as the President's Social Security Reform program did.

Vyan