Thursday, March 02, 2006

Warrantless eavesdropping deductions

In the post below this one, I lay out what I consider the known facts about the NSA spying program. Here's what I think those facts mean:

1. First, the government's argument in the Court of Review case that it should be granted warrants even if there was *no* foreign intelligence component was a breathtaking power grab, which would have rendered warrants meaningless in a legal sense.

2. The legality of Bush's actions turns on a few important questions:
a. Did the NSA eavesdropping involve a massive data-mining program aimed at domestic targets? If so, the legality of it is somewhat murky. NSA was specifically prohibited from turning its capabilities on domestic targets. But if all it did was listen to international communications that happened to include a lot of domestic callers, they at least have an argument. If they were monitoring purely domestic targets, however, that's clearly illegal.

One thing arguing against the program being a data-mining program is that Bush said it was aimed at "a few numbers." That implies targeted eavesdropping, not data-mining.

b. Did the eavesdropping involve only "foreign powers"? If so, it's clearly legal. One thing arguing against this explanation is that the administration has not claimed it. Since it's essentially a get-out-of-jail-free card, I would expect Bush to use this explanation if it were true.

c. Was the eavesdropping aimed at U.S. persons? Then a warrant clearly was required under FISA, even post-Patriot Act.

d. Perhaps Bush does not recognize any limits on his "inherent authority." But if that's the case, he unilaterally ignored one court decision (Truong), a law (FISA) and later another court decision (Court of Review), and is saying he has the right to spy on anybody he wants to if he thinks it's important for national security, regardless of what the other branches of government think. If he *does* think that, he will lose very, very badly. One thing that argues against him thinking that, however, is that in the government has never argued that warrants aren't required, and Bush has himself said that wiretaps require a court order.

So I'm left with the following logical conclusions:
1. It can't be only foreign persons, because Bush would have said so;

2. It can't be a data-mining operation, becaus Bush said it was aimed at only a few people;

3. It can't be an "inherent authority" dispute, because the law is very clear on that point and the administration has never argued to the contrary.

That leaves just two possibilities:
1. It was a limited operation aimed strictly at international calls to known terrorists. But there would be no reason to bypass FISA in such a case, because known terrorists overseas can be monitored without a warrant, and a showing that a domestic number was linked to an overseas terrorist would be a slam-dunk as far as getting a FISA warrant.

2. It was illegal, and Bush knew it. But he wanted to spy anyway, so he bypassed FISA.

Bush's motives might have been pure; we won't know until more details come out. But the most reasonable conclusion is that his actions were illegal. And he knew -- or should have known -- that.

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