Hayden stressed that the program “is not a drift net over Dearborn or Lackawanna or Freemont, grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about. This is targeted and focused.”
Unless I’ve missed something along the way, this is important news. Hayden is saying that the NSA program isn’t some kind of large-scale data mining operation that the authors of the FISA act never could have foreseen. Rather, it’s “targeted and focused” and involves “only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates.”
In other words, it’s precisely the kind of monitoring that the FISA court already approves routinely and in large volumes. Another few hundred requests wouldn’t faze them in the least.
So if (a) NSA’s lawyers are allegedly convinced that the program is legal, and (b) we’re talking about monitoring a specific and limited number of conversations, why not get FISA warrants? Because they knew FISA wouldn’t approve them:
The standard laid out by General Hayden ? a “reasonable basis to believe” ? is lower than “probable cause,” the standard used by the special court created by Congress to handle surveillance involving foreign intelligence.
….General Hayden said that the difference in the legal standards…played an important role in determining whether to go to the FISA court or not.
The 1978 law allows the agency to seek a warrant up to 72 hours after wiretapping begins when speed is of the essence. But even in an emergency, General Hayden said, the law required that the attorney general approve a wiretap before it could begin. But “the attorney general’s standard,” he said, “is a body of evidence equal to that which he would present to the court,” meaning that an emergency application would also have to show probable cause.
So what do you do if the FISA court won’t approve a lowered standard, Congress won’t change the law, and even the attorney general refuses to play ball? Answer: You go ahead and do what you want anyway.
Hayden seems to think this is fine. Hopefully there are some honest Republicans left in Congress who disagree.