Posted by Orin Kerr:
Did A FISA Judge Approve the Entire TSP?
http://volokh.com/archives/archive_2007_01_14-2007_01_20.shtml#1169072027
I'm not entirely sure I know what to make of [1]Attorney General
Gonzales's letter today about the NSA surveillance program, but I
wonder if I'm quirky in reading it possibly to mean that DOJ found a
judge who was willing to approve the entire TSP program under FISA.
Here's what the letter says:
a judge of the Foreign Intelligence Surveillance court issued
orders authorizing the Government to target for collection
international communications into or out of the United States where
there is probable cause to believe that one of the communicants is
a member or agent of al Qaeda or an associated terrorist
organization. As a result of these orders, any electronic
surveillance that was occurring as part of the Terrorist
Surveillance Program will not be conducted subject to the approval
of the [FISC].
The letter also says that as a result of this development, the
President no longer needs to and will not reauthorize the Terrorist
Surveillance Program.
The [2]Washington Post adds:
In a background briefing with reporters, Justice officials
declined to provide details about how the new program will work --
including whether the surveillance court has issued a blanket order
covering all similar cases or whether it will issue individual
orders on a case-by-case basis. Authorities also refused to say how
many court orders are involved.
The officials said the new approach will offer the same benefits
of the NSA program, along with the advantage of judicial oversight.
"There is no compromise to national security," one of the Justice
officials said. "The objectives of the program haven't changed, and
the capabilities of the intelligence agency to operate such a
program haven't changed as a result of these orders."
If this does involve a blanket order approving the entire program,
it would seem to be a very clever move by DOJ. It would achieve four
things, as I see it. First, it would make the TSP program very
difficult to challenge. I gather no one would have standing to appeal
the FISC order to the FISA Court of Review; even if the FISC order is
unlawful, it's unclear as a procedural matter how it could be
challenged. Second, it might moot the pending NSA litigation, or at
least render any opinion in that case of very limited consequence.
Third, it puts the Administration in the position of having obtained a
court order, so that even if the order is unlawful it's "the judge's
decision" rather than the Executive's. And fourth, it might help
persuade the press to focus elsewhere; the press would be sure to
present this as a concession to the Administration's critics (as the
[3]N.Y. Times did today), and the press is likely to be much less
interested after they think the Administration has backed down.
Of course, whether this is true depends on whether the Admnistration
obtained some kind of blanket order or plans to get orders on a
case-by-case nasis. And it's unclear when or if we'll know which
occurred.
References
1. http://www.talkingpointsmemo.com/docs/nsa-doj-surveillance/
2.
http://www.washingtonpost.com/wp-dyn/content/article/2007/01/17/AR2007011701256.html
3.
http://www.nytimes.com/2007/01/17/washington/18spycnd.html?hp&ex=1169096400&en=c276e8d31a956911&ei=5094&partner=homepage
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