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There is an operational impact here, and I have two paths in front of me, both of them lawful, one FISA, one the presidential -- the president's authorization. And we go down this path because our operational judgment is it is much more effective. So we do it for that reason.

Tuesday, August 16, 2005

To appreciate just how illegal this non-FISA "second path" for eavesdropping is, one can just read Section of FISA, which expressly provides that "[a] person is guilty of an offense if he intentionally - 1 engages in electronic surveillance under color of law except as authorized by statute. Anyone who eavesdrops in accordance with a "second path" -- which is exactly what Gen. Hayden said the Administration was doing and continues to do -- is, by definition, breaking the law and committing a crime.

But by all accounts, that never happened. When the President ordered this "second path" for eavesdropping, a more rubber-stamping court than the FISA court would be hard to imagine. Hayden claimed, the Administration is only eavesdropping on "specifically target communications we have reason to believe are associated with al Qaeda. Hayden yesterday, is the obvious question of why they did not seek to have the FISA standards amended if they were too onerous. As Kevin Drum notes, it is virtually certain that a Senate which passed the Patriot Act with only a single Senator voting against it — and which actually did change part of the FISA procedure when enacting the Patriot Act — would have given the Administration whatever changes it wanted to the FISA standards.

It seems that what really attracted the Administration when bypassing FISA was not some desire to lower the evidentiary standard for obtaining warrants since it was obtaining all the warrants it wanted and since it could certainly have persuaded Congress to amend the standard , but rather, the ability to eavesdrop without having to tell any Federal Judge on whom they were eavesdropping.

A reasonable debate can be had by all as to whether the standard for obtaining a warrant ought to be "probable cause" or "reasonable basis to believe. Matt Yglesias is absolutely correct that the standard described by Gen. Hayden is incredibly vague, and may be far looser than the country would like. But that debate is at least reasonable. But what is not reasonable, and what most Americans would likely not want hence the enactment of FISA , is for the Administration to be able to eavesdrop on Americans with no oversight whatsoever.

Rather than the evidentiary standard for warrants, the most important part of FISA is that it allows eavesdropping on Americans only with judicial oversight in order to avoid abuse. So they went ahead and did it anyway. We had a legislative regime in place which is incredibly permissive in allowing eavesdropping. We have a FISA court that could not have been more deferential in granting warrants. The only practical reason to bypass that process — even with a lowered evidentiary standard - is a desire to eavesdrop without having to disclose to a FISA judge whose communications are being intercepted and why.

I'm trying to communicate to you that the people who are doing this, okay, go shopping in Glen Burnie and their kids play soccer in Laurel, and they know the law. They know American privacy better than the average American, and they're dedicated to it. So I guess the message I'd ask you to take back to your communities is the same one I take back to mine. This is focused. It's targeted. It's very carefully done. You shouldn't worry.


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And President Bush, in defending his eavesdropping program yesterday, repeatedly — and I do mean repeatedly — assured us that we need not worry ourselves about it because it was all being done to "protect" us: I resolved on that day to do everything I can to protect the American people. My most important job is to protect the security of the American people. And so part of my decision-making process, part of it as you see when I begin to protect you, to do my number one priority, rests upon this fact. If they're making phone calls into the United States, we need to know why -- to protect you.

The reason FISA exists is precisely because Americans, through their elected representatives, made a collective judgment that they do not trust the Federal Government to eavesdrop on Americans without judicial oversight. The Health and nutrition Collection was actually triggered in August adhering to drought, out-of-season and also uneven rainfall and also civil disagreement in north Yemen.

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