Wiretapping, president Bush and the NSA

Mark Rasch has been thinking about the domestic spying controversy in the US.

"Let's start with a little reality check here. Much of what the NSA and the intelligence community does is in violation of some law somewhere. Indeed, much of what the military does is as well. When the NSA intercepts a communication from France to Afghanistan, it probably violates the privacy and electronic surveillance laws in both countries. When it installs alligator clips on a phone in Turkmenistan, it probably violates some local burglary or trespass law. Espionage - the staple of the CIA - is a felony in almost every nation, and a capitol offense in the US. In fact, it is part of the intelligence community's job to try to get people to commit treason. So we are hardly shocked or offended that our government or any government is violating the law. What the so-called NSA domestic spying scandal addresses is whether the process violates US law...

Now it is difficult for me to imagine a circumstance where someone could be part of a terrorist organization, planning or discussing terrorist activities and not be suspected of a crime. Terrorism is a crime. Murder is a crime. Destruction of property is a crime. Conspiracy is a crime. Money laundering, fraud, immigration fraud, false statements, counterfeiting - all of these are crimes. In the recent Spielberg movie Munich, Mossad agents assigned to assassinate those responsible for planning the abduction and murder of Israeli Olympic athletes agonize over the legality of their actions, but ultimately focus on its necessity. Niceties of the law are rarely debated on the battlefield, and according to the current administration, the battlefield is everywhere and forever...

Thirty-three years ago, the US Government tried to rely on pure Presidential power to engage in domestic surveillance of domestic subversive groups without a warrant. US Supreme Court rejected the government's contention (http://www.justia.us/us/407/297/case.html) that the courts were not prepared to deal with the sensitive classified information, could not make informed decisions about the threats to national security, and that the President had independent authority to order these wiretaps without the Courts. Even if the wiretaps were "reasonable" the Supreme court opined, they violated the Fourth Amendment...

It was this precedent - establishing that a government official's immunity for ordering such illegal wiretaps is only limited - that Supreme Court nominee Samuel Alito sought to reverse when he was advising the Reagan Administration's Justice Department...

Now anyone who has worked in a bureaucracy knows how hard it is to get anything done. Indeed, to get a FISA tap, the NSA agent monitoring traffic in the field (whether that is in Afghanistan, at an ISP, or in Fort Meade, Maryland) would likely have to get the approval of several levels of supervisors, and then lawyers for the NSA would get involved. Then the NSA would have to involve the Department of Justice's Office of Intelligence Policy and Review, and the Office of the Attorney General to review and analyze the FISA order, establish appropriate minimization procedures, and present the case for review by the FISA court. Finally, the FISA court would be convened and review, modify or approve the request for a wiretap. The wheels of justice grind exceedingly slow...

I can't imagine, however, that the non-FISA "presidential authority" wiretaps would be much faster. NSA agents and supervisors, NSA counsel and the Department of Justice would all have to be involved in approving the wiretaps, and they would then have to be reviewed by the White House, and ultimately approved by the President himself. This may turn out to be a case where the need for "speed" is really a euphemism for the need to assert Presidential authority over the courts."

Thoughtful piece (runs to 5 pages), well worth reading in full.