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Looks like we have our answer.

From the Washington Post, August 23, 2002:

Secret Court Rebuffs Ashcroft
Justice Dept. Chided On Misinformation
Dan Eggen and Susan Schmidt
Washington Post Staff Writers
Friday, August 23, 2002; Page A01

The secretive federal court that approves spying on terror suspects in the United States has refused to give the Justice Department broad new powers, saying the government had misused the law and misled the court dozens of times, according to an extraordinary legal ruling released yesterday.

A May 17 opinion by the court that oversees the Foreign Intelligence Surveillance Act (FISA) alleges that Justice Department and FBI officials supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh.

[snip]

The documents released yesterday also provide a rare glimpse into the workings of the almost entirely secret FISA court, composed of a rotating panel of federal judges from around the United States and, until yesterday, had never jointly approved the release of one of its opinions. Ironically, the Justice Department itself had opposed the release.

Stewart Baker, former general counsel of the National Security Agency, called the opinion a "a public rebuke.

"The message is you need better quality control," Baker said. "The judges want to ensure they have information they can rely on implicitly."

[snip]

Despite its rebuke, the court left the door open for a possible solution, noting that its decision was based on the existing FISA statute and that lawmakers were free to update the law if they wished.

Members of the Senate Judiciary Committee have indicated their willingness to enact such reforms but have complained about resistance from Ashcroft. Chairman Patrick J. Leahy (D-Vt.) said yesterday's release was a "ray of sunshine" compared to a "lack of cooperation" from the Bush administration.

(Hat tip to Shock at Daily Kos.)

Unbelievable.

In 2002, the FISA court actually recommended reform through legislation - due process - as a solution to the problem.

Unbelievable.

The Justice Department gets a slap on the wrist so the President avoids the FISA court altogether.

The law says you go to the court for warrants. Period. The court says if you need reform, go to Congress. Period. Reform legislation, at the time, would most likely have sailed through Congress. Period.

The president chose to go ahead and spy anyway, completely bypassing the courts and the legislature.

The president broke the law.

This is a serious constitutional crisis.

Conservative columnist George Will in today's Washington Post:

The president's authorization of domestic surveillance by the National Security Agency contravened a statute's clear language. Assuming that urgent facts convinced him that he should proceed anyway and on his own, what argument convinced him that he lawfully could?"

I know I sound like a broken record, but I'll say it again: conservatives should be more angry than liberals about this.

The honest ones are.

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The point is not just that the president was spying on American citizens.

The president has the right to use the National Security Agency to spy on anyone in the U.S. suspected of being an "agent of foriegn power."

All he has to do is clear it with the secret FISA court, established under the Foreign Intelligence Surveillance Act of 1978. The FISA court has granted nearly 19,000 warrants since it was established and denied only five.

There's even a loophole if time is of the essence: if it's an emergency, the president can go ahead and spy. He just has to run it by FISA within 72 hours.

So here's the question: Why bypass a court that has only denied 5 of 19,000 warrants in 25 years?

(Sorry I've been off the grid a bit lately. I'll update ya soon.)

Labels: in the news