Roger Pilon, Julian Sanchez ,and Me on FISA

by on January 29, 2008 · 4 comments

You might have seen Roger Pilon’s recent op-ed defending the Bush administration’s stance in the FISA debate. As you might imagine, I have a somewhat different take on the issue, as I discuss at the Cato blog:

The dispute is over what safeguards are appropriate to ensure that the intelligence community’s surveillance activities here in the United States are limited to genuine foreign intelligence. Roger’s position appears to be that neither the courts nor Congress may place any restrictions on domestic surveillance activities that the president declares to be related to foreign intelligence gathering. But that’s not good enough. Without judicial oversight, there is no way to know if the executive branch is properly limiting its activities to spies and terrorists, or if they’ve begun to invade the privacy of petty criminals or even law-abiding individuals. This is no hypothetical scenario. The FBI conducted extensive surveillance of Martin Luther King Jr. and other civil rights and anti-war leaders in the 1960s and 1970s, which was one of the reasons Congress enacted new safeguards in the first place…

In short, FISA gave the intelligence community plenty of flexibility to perform the domestic wiretaps they needed to keep Americans safe. But crucially, the government had to tell the court who it was spying on, so that the court could verify that the law was being followed. That’s an important safeguard that ensures that the president doesn’t exceed his constitutional authority and encroach on the privacy of law-abiding citizens. The Protect America Act severely crippled that protection, and it would be a serious mistake for Congress to make the damage permanent.

Julian has a much more thorough and harsher critique of Roger’s piece, amusingly titled “Rogering the Constitution.” One of the interesting statistics that Julian pointed out to me is that the FISA court had never rejected an application until 2003, and through the end of 2006 had rejected a grand total of 5 applications out of more than 20,000 it has reviewed. The idea that this is some kind of intolerable “micromanagement” of government surveillance strikes me as kind of implausible.

  • http://purveyorofiniquities.com Andrew Grossman

    The argument w/r/t application rejections is very misleading for two reasons.

    First, DOJ’s OIPR works very closely w/ the FISC, to maintain that working relationship, must be above the board on all applications. OIPR holds up applications until they’ve been documented extensively and gone through exhaustive reviews. An average application requires hundreds of hours of lawyers’ time to review. A regular warrant, meanwhile, may require an hour or less to draft and put before a magistrate. Maybe a bit longer under Title III.

    Second, FISC review can be a back-and-forth process, with the court indeed micromanaging the details of the application, the evidence presented to it, and the means of surveillance and minimization. This is clear in the statute itself (50 U.S.C. § 1804 (d), I think).

    In short, it’s a good rhetorical point, but nothing more than that. An understanding of the statute itself and how the FISC operates (two recent CRS reports are particularly good on this) are crucial to knowing what the acceptance/rejection totals really mean.

  • http://purveyorofiniquities.com Andrew Grossman

    The argument w/r/t application rejections is very misleading for two reasons.

    First, DOJ’s OIPR works very closely w/ the FISC, to maintain that working relationship, must be above the board on all applications. OIPR holds up applications until they’ve been documented extensively and gone through exhaustive reviews. An average application requires hundreds of hours of lawyers’ time to review. A regular warrant, meanwhile, may require an hour or less to draft and put before a magistrate. Maybe a bit longer under Title III.

    Second, FISC review can be a back-and-forth process, with the court indeed micromanaging the details of the application, the evidence presented to it, and the means of surveillance and minimization. This is clear in the statute itself (50 U.S.C. § 1804 (d), I think).

    In short, it’s a good rhetorical point, but nothing more than that. An understanding of the statute itself and how the FISC operates (two recent CRS reports are particularly good on this) are crucial to knowing what the acceptance/rejection totals really mean.

  • http://www.techliberation.com/ Tim Lee

    Andrew,

    That’s an interesting point. Are the CRS reports you mention available online?

    Even if you’re right that an application requires hundreds of hours of a lawyer’s time to review, I’m not sure that strikes me as an intolerable burden. If it takes, say, 500 lawyer-hours per FISA application, and there were about 2000 applications in 2006, that suggests that the federal government needed to have 500 lawyers on hand to comply with FISA in 2006. If we figure they each lawyer costs the government a million dollars, that means that FISA cost taxpayers a half-billion dollars in 2006. Which is a drop in the bucket in federal budgeting terms and certainly a small price to pay to ensure our civil liberties are protected, no?

  • http://www.techliberation.com/ Tim Lee

    Andrew,

    That’s an interesting point. Are the CRS reports you mention available online?

    Even if you’re right that an application requires hundreds of hours of a lawyer’s time to review, I’m not sure that strikes me as an intolerable burden. If it takes, say, 500 lawyer-hours per FISA application, and there were about 2000 applications in 2006, that suggests that the federal government needed to have 500 lawyers on hand to comply with FISA in 2006. If we figure they each lawyer costs the government a million dollars, that means that FISA cost taxpayers a half-billion dollars in 2006. Which is a drop in the bucket in federal budgeting terms and certainly a small price to pay to ensure our civil liberties are protected, no?

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