NSA Wiretaps Brought Under Law (Updated Again)

Great news: The NSA’s domes­tic spy­ing pro­gram is finally being brought within the bounds of the law, more than a year after it was revealed.
The Justice Department has decided to let the Foreign Intelligence Surveillance Court — the tra­di­tional, and legal, mon­i­tor of gov­ern­ment wire­tap pro­grams — start exam­in­ing the spy efforts. Before, the Bush Administration said no such review was needed — a legal read­ing that even for­mer NSA chiefs said was wildly off-​​base.
The court has already “approved one request for mon­i­tor­ing the com­mu­ni­ca­tions of a per­son believed to be linked to al-​​Qaida or an asso­ci­ated ter­ror group,” the AP says.
It’s a huge (and wel­come) turn­around for an admin­is­tra­tion that said pre­vi­ously that the pres­i­dent had the power to order almost any­thing in the name of fight­ing ter­ror. (And “still believes that,” accord­ing to flack-​​in-​​chief Tony Snow.) So why the change? Snow mum­bled some­thing about the court’s increased “agility.” But you can bet your ass the new Congress had a whole lot to do with it.
UPDATE 3:28 PM: Shocker. Attorney General Alberto Gonzales, in his let­ter describ­ing the rule change, appears to be lying through his teeth shad­ing the truth, say­ing that the admin­is­tra­tion has been try­ing to put the wire­taps under the court’s author­ity since the spring of 2005. If that’s the case, Glenn Greenwald asks, “why didn’t they say so when the con­tro­versy arose?“
UPDATE 3:35 PM: Patrick Keefe, author of Chatter: Dispatches from the Secret World of Global Eavesdropping, is tak­ing a wait-​​and-​​see approach to Gonzales’s announce­ment. “It’s just not clear what it means,” he tells Defense Tech.

There have already been pro­pos­als for the FISA court to grant blan­ket retroac­tive approval to the pro­gram, and if that’s what this is, then it’s not much of a con­ces­sion from the admin­is­tra­tion. If, on the other hand, it’s actu­ally case-​​by-​​case approval by FISA judges we’re talk­ing about, I’m not sure how that’s going to square with the reported scope of the pro­gram. The osten­si­ble grounds for cir­cum­vent­ing the FISA in the first place were that this pro­gram didn’t fit in the FISA frame­work. And given that it report­edly does a kind of mile-​​wide-​​and-​​inch-​​deep net­work analy­sis that is anti­thet­i­cal to the per­son­al­ized, legally sanc­tioned sur­veil­lance con­tem­plated by the FISA, I’m not sure how you can make the two pro­ce­dures fit. Unless what they’re really say­ing here is that they’re aban­don­ing the pro­gram alto­gether, and return­ing to one-​​target-​​at-​​a-​​time, retail-​​rather-​​than-​​wholesale sur­veil­lance. Which some­how I doubt.

UPDATE 3:35 PM: “It sounds to me like this court just re-​​wrote the law and made a sec­ond cat­e­gory of wire­taps (one that is eas­ier to get but only tar­geted at over­seas com­mu­ni­ca­tions),” writes Ryan Singel.
He also notes that Gonzales’s announce­ment comes just a day before he is sup­posed to tes­tify before the Senate Judiciary Committee. “Pretty sneaky, sis,” Ryan says.
UPDATE 4:51 PM: “Another ques­tion raised by Gonzales let­ter indeed, in the first sen­tence is which FISC judge issued this order?” sur­veil­lance scoop­mas­ter Shane Harris tells Defense Tech.

The let­ter states that a judge issued the order. Does Gonzales mean the courts pre­sid­ing (or chief) judge, Colleen Kollar-​​Kotelly? Presumably he would have said so if that were the case. Kottelly has been briefed on the NSA pro­gram pre­vi­ously. She report­edly has been con­cerned that infor­ma­tion obtained with­out war­rants under the NSA pro­gram could taint other war­rant appli­ca­tions before the court.
The FISC is made up of 11 sit­ting fed­eral judges hail­ing from judi­cial dis­tricts across the coun­try. Did the admin­is­tra­tion select a par­tic­u­lar judge to approach for this order? Heres the break­down on how many judges were appointed by a par­tic­u­lar president:

Jimmy Carter: 1
Ronald Reagan: 4
George H.W. Bush: 3
Bill Clinton: 2
George W. Bush: 1

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