Domestic Spying and Common Sense

Now that the issue of legality/illegality of the National Security Agency (NSA) Domestic Surveillance program authorized by President Bush has been bandied about for a few weeks, it’s time to apply some common sense and deductive reasoning to the whole affair so that we can get beyond the minutiae.

There are some undisputed facts in this case that are pertinent to the discussion:

· President Bush authorized the NSA to conduct domestic surveillance without the approval of the Foreign Intelligence Surveillance court (a.k.a, FISA Court). The scope of this surveillance is unknown.

· In the Resolution authorizing force against Al Qaeda, the Bush Administration sought a last minute change to the wording so that “in the United States” would specifically be referenced in the law. This last minute change was rejected. See Tom Daschle’s Op-Ed piece in the Washington Post for a full description of what transpired.

· The FISA Court has an approval rate of approximately 99.97% for requests brought before it.

Let’s look at these facts and draw some conclusions. First, the approval rate of the FISA Court suggests that this court is virtually a rubber stamp for warrant requests. At the very least, due to the number of requests submitted in the past (approximately 19,000), the standard required for evidence and probable cause by the Court was well known. If it was not well known, you would probably see a lower approval rate. The idea that the standard was well known is something to keep in mind as you read this.

Secondly, the broad language in the Resolution authorizing force against Al Qaeda has been pointed to by many conservatives to be all that was required to justify the NSA’s domestic surveillance. However, on September 14, 2001, the Bush Administration itself was uncertain whether that language was sufficient enough to authorize activities on the domestic front. The attempt to insert more specific language into the law to include authorization for activities within the United States shows that the White House wanted explicit authority to conduct such activities and didn’t necessarily want to rely on the broad language of the negotiated resolution as cover. It is reasonable to assume that these domestic activities would have included surveillance. If this language had been inserted, the need for going to the FISA Court for domestic surveillance approval would have been nullified in the eyes of White House lawyers.

At this point, it’s time for a little common sense. It’s clear that the Bush Administration sought legal cover in the Resolution of force versus Al Qaeda, yet when that insertion was rejected, it did not seek authorization from the appropriate court with jurisdiction in this area that had a well known standard for evidence and probable cause. The conclusion that I am left with is that portions of the surveillance program could not meet the court’s standard for approval, so the President chose to bypass it altogether and secretly authorized the spying.

I’m not making a judgment as to whether this surveillance campaign is legal or illegal. That is for a court and/or Congress to decide, however it is clear to me that the Bush Administration knew in 2001 that this activity was on the edge of the law. It is highly suspicious that the Administration explicitly chose not to seek approval from a court with such a high approval rate of warrant requests. What were they afraid of?

For a conservative spin on the Domestic Spying Scandal, read this Op-Ed piece in the New York Times (registration required) by David B. Rivkin and Lee A. Casey, former Justice Department attorneys in the Reagan and GWH Bush administrations.

For an authoritative debunking of myths surrounding the scandal, read this excellent post from Media Matters for America. Almost all of the arguments put forth by Rivkin and Casey are summarily dismissed here.