Think Smirky and Gonzo blinked over the NSA domestic spy program?

[deminks]

Maybe not.

http://www.nytimes.com/2007/01/18/washington/18intel.html?ei=5099&en=f2815a5ebcb686f7&ex=1169701200&partner=TOPIXNEWS&pagewanted=all

(snip)

The Justice Department said it had worked out an “innovative” arrangement with the Foreign Intelligence Surveillance Court that provided the “necessary speed and agility” to provide court approval to monitor international communications of people inside the United States without jeopardizing national security.

(snip)

The administration said it had briefed the full House and Senate Intelligence Committees in closed sessions on its decision.

But Representative Heather A. Wilson, Republican of New Mexico, who serves on the Intelligence committee, disputed that, and some Congressional aides said staff members were briefed Friday without lawmakers present.

Ms. Wilson, who has scrutinized the program for the last year, said she believed the new approach relied on a blanket, “programmatic” approval of the president’s surveillance program, rather than approval of individual warrants.

Administration officials “have convinced a single judge in a secret session, in a nonadversarial session, to issue a court order to cover the president’s terrorism surveillance program,” Ms. Wilson said in a telephone interview. She said Congress needed to investigate further to determine how the program is run.

(end snip)

Expect Gonzo to get a lot of questions tomorrow. There is a reason this all came out today. Deflect, deflect, deflect.

[TechBear_Seattle]

1. Not at all

I strongly believe they are lying their asses off about getting warrants and there being judicial oversight. Everything is secret, so how can we prove or disprove these claims?

[rusty charly]

2. there's no case-by-case review

one decision covers all moves by the chimpy cabal. a snarky lawyer found a loophole.

[Tuesday_Morning]

3. Shayana Kadidal points out on Huffington Post

http://www.huffingtonpost.com/shayana-kadidal/reports-of-the-nsa-progra_b_38903.html

<snip>

Since these court orders are "innovative," "complex," and - Gonzales forgot to mention - totally secret, we have no way of knowing what they contain (yet). But my reading of the first paragraph of Gonzales' letter is that the Administration went to one hand-picked, friendly FISA judge (there are 11 of them on the court, and the government can ordinarily seek a surveillance warrant from any one it chooses), and asked forapproval to carry out the NSA program in exactly the fashion they have been carrying it out thus far.

That is, the administration did not follow the normal, lawful procedure for a FISA warrant, which is to bring the Court evidence creating probable cause to suspect a surveillance target of involvement in terrorism, and get an order allowing surveillance of that particular suspect's communications. Rather, it appears possible from this letter that Gonzales asked for approval to carry out a program of surveillance against anyone the administration thinks is associated with al Qaeda or terrorism. (Recall that Arlen Specter's last bill, a so-called compromise with the administration that was likely drafted by it, would have allowed for FISA court approval of whole programs of surveillance.) In this case, the program sounds like one where the executive--not a court--decides when there is enough evidence to create probable cause to suspect someone of involvement in terrorism. As with the existing NSA Program, nothing in Gonzales' letter indicates that, under the January 10th order, the administration ever needs to go to a court for an impartial opinion in each individual case, as the law and the Constitution require.

Of course, approving of such a broad, unchecked program of executive spying is entirely outside the power of the FISA court under the FISA statute; it would essentially constitute a "general warrant" of the sort that helped inspire the colonists to revolt against King George back in 1776 . But that doesn't mean that an administration-friendly pro-executive activist judge might not have done exactly that on January 10th. In other words, Gonzales may simply have convinced a FISA Judge to rubber-stamp the program as a whole--something the judge was not empowered under the FISA statute to do.

The timing of this announcement is very suspect. Beyond the fact that the new Congress seems ready to hold hearings on the NSA Program, a review of the program is pending in the Court of Appeals for the Sixth Circuit in the ACLU's case, with oral argument scheduled for the end of January. Is today's confusing letter designed to forestall or delay review by the federal courts? The administration went through a number of last-minute maneuverings to avoid Supreme Court review in the Padilla case, and I wouldn't be surprised one bit if exactly the same is happening now.


<snip>

Glenn Greenwald is great on these questions too.

http://glenngreenwald.blogspot.com/2007/01/fisa-and-president-together-again.html