FISA AND HAM SANDWICHES….I haven’t been reading the blogosphere very much for the past few days, so excuse me if this is old news. But I wanted to mention the part of the NSA bugging story that strikes me as the strangest.
Remember that old saw about how a grand jury will indict a ham sandwich if a prosecutor asks it to? Well, as near as I can tell, the secret FISA court that authorizes domestic wiretaps is pretty much the same way: it would approve a wiretap on a ham sandwich if the government asked it to. I don’t think official numbers are available, but unofficially it’s clear that out of thousands of requests over the past decade, FISA has turned down only a tiny handful. Getting a FISA warrant is the closest thing to a slam dunk there is in the criminal justice system.
In fact, the New York Times article that exposed the NSA program made this very point:
The standard of proof required to obtain a warrant from the Foreign Intelligence Surveillance Court is generally considered lower than that required for a criminal warrant ? intelligence officials only have to show probable cause that someone may be “an agent of a foreign power,” which includes international terrorist groups ? and the secret court has turned down only a small number of requests over the years. In 2004, according to the Justice Department, 1,754 warrants were approved. And the Foreign Intelligence Surveillance Court can grant emergency approval for wiretaps within hours, officials say.
Administration officials counter that they sometimes need to move more urgently, the officials said. Those involved in the program also said that the N.S.A.’s eavesdroppers might need to start monitoring large batches of numbers all at once, and that it would be impractical to seek permission from the Foreign Intelligence Surveillance Court first, according to the officials.
This explanation is so weak as to be laughable. So what’s the real reason for this program? Working with the FISA court wouldn’t stop the Bush administration from doing anything they want to do, so what’s the point of bypassing them? The real point, that is.