December 19, 2005


Tim Russert was recently grilling Condi Rice about Bush's authorization to surveil US Citizens without a court order. She claimed the administration acted lawfully under FISA (the Foreign Intelligence Surveillance Act). It doesn't look like that act gives them that ability (see below).

Hey, I've got no problem with the government keeping an eye on potential terrorists. But how hard is it, really, to get a court order? The vast majority of orders are approved. Under FISA, they can even start surveillance and then apply for the court order the next day. So what's the real reason they stopped asking for court orders? Couldn't find a judge with enough free time to oversee the surveillance of the worst kind of criminals? I don't know, seems to me that there's something fishy here. Was the Justice Department doing something a reasonable judge wouldn't have approved of? Or is judicial oversight just too much of a bother?

This is an interpretation of the relevant sections of FISA from a lawyer for the Electronic Frontier Foundation:

18. Does FISA authorize surveillance without a court order?

Yes. In general, the Justice Department may engage in electronic surveillance to collect FII without a court order for periods up to one year. 50 U.S.C. § 1802. There must be no "substantial likelihood" that the intercepted communications include those to which a U.S. person is a party. § 1802(a)(1)(B). (emphasis mine)

Such electronic surveillance must be certified by the Attorney General and then noticed to the Senate and House intelligence committees. § 1802(a)(2). A copy of the certification must be filed with the FISC, where it remains sealed unless (a) an application for a warrant with respect to it is filed, or (b) the legality of the surveillance is challenged in another federal district court under § 1806(f). § 1802(a)(3). Common carriers must assist in the surveillance and maintain its secrecy. § 1802(a)(4).

In emergencies, the Attorney General may authorize immediate surveillance but must "as soon as practicable, but not more than twenty-four hours" later, seek judicial review of the emergency application. § 1805(e).


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