Julian on NSA Surveillance

Julian thinks that the president’s announcement that he’ll suddenly start running his NSA wiretapping program by the book smells fishy:

But as Orin Kerr notes there’s a big honking ambiguity in this new oversight: Justice department officials won’t clarify whether that means FISA will be ordering the familiar sort of case-by-case warrant based on individualized suspicion or some kind of blanket approval of the old TSP as a whole. Because if it’s the latter, that’s not oversight. That’s writ of assistance. It’s hard to read this transcript and not come away with that conclusion, and equally hard for me to fathom how such a general clarification could somehow be perilous to national security. The only reason I hesitate is that it seems odd that a FISA judge would sign off on so dramatic a departure from the normal rules of the game.

Quite a bit about this doesn’t smell right, actually. Suppose we are talking about real, case-by-case oversight. We were supposed to believe that the ordinary FISA process was too slow and cumbersome to allow intelligence agencies to hunt terrorists effectively, and for some reason it wasn’t possible to remedy this by normal legislative means–say, by asking Congress to extend the 72-hour window within which agencies can conduct emergency taps before securing retroactive approval. As Mark Moller notes, that seems still more dubious in light of this new announcement: How much can actually have changed in the process without any legislative action? Why would it take five years to make those changes, requiring the creation of a separate program in the interim?

Excellent questions. Given that the administration refused to even disclose the existence of this program until the press got wind of it, and given that they’ve suddenly become interested in following the rules once there’s a Democratic Congress around to provide real oversight, it would be crazy to take the White House at its word as to what the new procedure is. Congress needs to demand a full, public disclosure of exactly how this new FISA approval process works so we can judge for ourselves if the White House is playing fast and loose with the law.

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