Responding To Greenwald – Again
There’s been a lot of back and forth between blogs on the right and Glenn Greenwald lately, partly because, much to his credit, he’s one of the few leftie bloggers who will engage in substantive debates and link back to the blogs he’s criticizing, and partly because he’s been doing good work on the NSA surveillance issue. His latest post has come recommended to me by at least two commenters, and he has made what is possibly a very significant find of an administrative position re: probable cause and FISA.
Well, I’m not an attorney, but I’ve made it clear that I’m not convinced that the NSA program was legal; we know, however, that the administration argument is that FISA does not even apply here; instead, the authorization is that provided by the president, using his interpretation of the AUMF (and just because you don’t agree with the president doesn’t make him incorrect – there is a lawsuit working from the ACLU, so hopefully, the legality will be determined definitively by the courts at some point). From yesterday’s Q & A with Hayden:
On FISA and the 72 hours:QUESTION: General Hayden, the FISA law says that the NSA can do intercepts as long as you go to the court within 72 hours to get a warrant. I understood you to say that you are aggressively using FISA but selectively doing so. Why are you not able to go to FISA as the law requires in all cases? And if the law is outdated, why haven’t you asked Congress to update it?
GEN. HAYDEN: Lots of questions contained there. Let me try them one at a time.
First of all, I need to get a statement of fact out here, all right? NSA cannot — under the FISA statute, NSA cannot put someone on coverage and go ahead and play for 72 hours while it gets a note saying it was okay. All right? The attorney general is the one who approves emergency FISA coverage, and the attorney general’s standard for approving FISA coverage is a body of evidence equal to that which he would present to the court. So it’s not like you can throw it on for 72 hours.
I’ve talked in other circumstances — I’ve talked this morning — about how we’ve made very aggressive use of FISA. If you look at NSA reporting under this program — you know, without giving you the X or Y axis on the graph — NSA reporting under this program has been substantial but consistent. This is NSA counterterrorism reporting. Substantial but consistent. NSA reporting under FISA has gone like that. FISA has been a remarkably successful tool. We use it very aggressively.
In the instances where this program applies, FISA does not give us the operational effect that the authorities that the president has given us give us. Look. I can’t — and I understand it’s going to be an incomplete answer, and I can’t give you all the fine print as to why, but let me just kind of reverse the answer just a bit. If FISA worked just as well, why wouldn’t I use FISA? To save typing? No. There is an operational impact here, and I have two paths in front of me, both of them lawful, one FISA, one the presidential — the president’s authorization. And we go down this path because our operational judgment is it is much more effective. So we do it for that reason. I think I’ve got — I think I’ve covered all the ones you raised.
If Hayden is saying that FISA is not operative for those wiretaps authorized by the president, then doesn’t that make Greenwald’s discovery a lot less explosive than it’s being played up to be?
Greenwald makes much of the administration’s lack of support for introduced legislation by Mike Dewine that would have lowered the probable cause standard for FISA – but as Hayden says, the administration used FISA aggressively and continues to do so, but those uses are seperate from the President’s program. Why lobby to change FISA to cover situations that you have been assured are covered by other, legal authorization? (And remember, it is not the job of Michael Hayden to determine legality – he asked for, and received, numerous opinions from legal counsel that the program was legal). In other words, probable cause is a sufficient standard for eavesdropping covered under FISA – and that’s not at all what we’re talking about here.
The president’s program, we are now led to believe, targets communications between known or suspected al Qaeda operatives and people in the U.S., including American citizens. It is conducted under presidential authority, and the president clearly believes he has been given that authority. Mr. Greenwald and others can and will make persuasive cases that the belief is mistaken, but this seeming contradiction regarding the Dewine legislation is only a contradiction if you buy the notion that the communications in question were authorized by FISA and not by presidential authority.
Let me stress one more time: I am not arguing that the administration’s position is the correct one; nor am I questioning the merits of alternative interpretations such as that of Greenwald (and as I stated, though I may not agree with his conclusions, he is doing fine work on this story and getting a completely just amount of attention for it). I am merely arguing that Glenn’s latest discovery, while quite interesting, is not the glaring contradiction it is made out to be if one examines the assumptions underlying the administration’s position, regardless of the correctness of those assumptions.
UPDATE 11:34 a.m.: Related, from the AG Speech yesterday:
We do not have to decide whether, when we are at war and there is a vital need for the terrorist surveillance program, FISA unconstitutionally encroaches – or places an unconstitutional constraint upon – the President’s Article II powers. We can avoid that tough question because Congress gave the President the Force Resolution, and that statute removes any possible tension between what Congress said in 1978 in FISA and the President’s constitutional authority today.