Why Run Around the Low-Hurdle of FISA?

Former CIA analyst

If you were Christmas shopping on December 19, you may have missed an important press conference. Attorney General Alberto Gonzales and Deputy Director of National Intelligence Gen. Mike Hayden answered questions about eavesdropping on Americans by the National Security Agency, which Hayden directed from 1999 to 2005, in violation of the Foreign Intelligence Surveillance Act (FISA). More Kabuki dance than press conference, the event was not given much play in the media. However, the implications for privacy-and for our constitutional system of checks and balances-are immense. We do well to explore those implications.

As long as he read from his script, Attorney General Gonzales did just fine with the press on Dec. 19. He conceded that FISA requires a court order to authorize the surveillance the president ordered NSA to undertake. But then he hammered home the administration’s “legal analysis;” namely, the twin argument that Congress’ post 9/11 authorization of force and the president’s power as commander in chief trump the legal constraints of FISA.

Spilling the Beans

When the reporters’ questions began, Gonzales faltered and unwittingly got down to the crux of the matter. Asked why the administration decided to flout rather than amend FISA, Gonzales said:

“We have had discussions with Congress…as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.”

So they went ahead with the new eavesdropping program anyway.

Gen. Hayden’s remarks were equally intriguing: He conceded that the special program authorized by the president was “more aggressive than would be traditionally available under FISA,” but stressed repeatedly that the new program deals only with international calls for short periods of time. In other words, Hayden implied, U.S. citizens are monitored only sometimes-and just a little, so we are dealing with tiny incompatibilities with the FISA law, and, besides, the president has said he has the authority anyway.

FISA Flexible

Hayden and Gonzales both stressed the need for “speed and agility.” But, as Lyndon Johnson was fond of saying, “That dog won’t hunt.” The FISA law contains intentionally flexible provisions designed to provide speed and agility in expediting emergency requests. The law grants the attorney general enormous power and discretion to authorize secret “emergency” electronic surveillance and physical searches for up to 72 hours, before any court order is granted. No court order at all is required if the surveillance is terminated before the 72-hour period ends. The FISA court itself may be the most expensive rubber stamp in government. Between 1978 and 2002, the court approved almost every one of the 15,000 search warrant requests, and it continues to approve 99 percent of requests.

So why did the Bush administration order NSA to skirt the FISA law? Could it be because it was carefully crafted not only to give government wide latitude to move quickly, but also to protect citizens’ Fourth Amendment rights to freedom from illegal search and seizure? This remains the $64 question. All the likely answers are deeply troubling.

Is it Simply Power-Grab and Chutzpah? …

The most cynical and, I fear, the most persuasive answer can be gleaned from Vice President Cheney’s recent open assertion-supported, no doubt, by a stack of in-house legal opinions, that in war time the president “needs to have his powers unimpaired.” As noted above, on Dec. 19, Gonzalez invoked the “inherent authority under the Constitution” of the commander-in-chief, as well as the equally ludicrous claim that Congress’ authorization of war after 9/11 trumps FISA-a claim that even the regime-friendly Washington Post has termed “impossible to believe.”

Ludicrous, but not funny. These extreme views are the same ones that underpin the president’s decision to flout international and U.S. criminal law by approving practices like torture, until now almost universally banned by civilized societies. The answer may be simple-“imperial hubris,” one might call it. And if-as seems to be the case-senior leaders like Colin Powell meekly acquiesce in torture and Gen. Mike Hayden in illegal eavesdropping, shame on them. This would merely show, once again, that absolute power truly does corrupt absolutely-indeed, that even closeness to absolute power can.

… or Is It Physics and Volume?

At the press conference on Dec. 19, the attorney general issued a pointed reminder that there have been “tremendous advances in technology” since FISA was passed in 1978. He thus hinted that the problem is largely a technological one-a function of the availability of new, highly sophisticated technologies and the physics of the challenge NSA faces in dealing with the huge volume of intercept material collected. Recent press reports on the volume of communications being monitored by NSA suggest that the number is so high as to be technically or practically impossible to seek approval of as individual FISA “emergencies,” as the law requires. Consistently high numbers of monitored communications could have trouble passing muster as “emergencies” even at the docile FISA court, for the exceptions would quickly swallow the rule.

But if that were the problem, why did the administration not try to amend the law or pass a new one? Is that not what government lawyers are for; i.e., to devise ways to make such things legal, if they can persuade Congress to go along? And in the post 9/11 atmosphere, when the draconian measures in the so-called Patriot Act were passed so easily, were not the prospects excellent that Congress would approve?

The inescapable conclusion is that what the authorities sought were so far-reaching that even the post 9/11 Congress would have balked. As Attorney General Gonzales has indicated, initial soundings on the Hill indicated that the prospect was poor for approval of what would have been a bold request for vacuum-cleaner-type authority for NSA to suck up communications-including those to and from Americans-from wires and the ether. That appears to have been the rub-that, plus deep reluctance to invite any congressional attention, much less scrutiny, to the program. All this would help explain why there is no sign of any serious effort on the administration’s part to amend the law. Instead, administration officials fell back on the “anyway” rationalization; i.e., the notion pushed by top administration lawyers that the president has the power to authorize eavesdropping anyway.


The vast quantity of communications reportedly intercepted by NSA under this special program (New York Times reporter James Risen says “roughly 500 people in the U.S. every day over the past three or four years”) makes suspect the president’s claim that all of the monitored communications have some link to al-Qaeda or other terrorists. If he is telling the truth, we are indeed in serious trouble.

A primary concern is that, among the groups of American citizens most likely to be sucked up by the NSA’s vacuum cleaner-because of the nature of their work and their international calls/contacts-are members of Congress and journalists. A key question that raises its ugly head is this: If hundreds of calls and e-mails involving Americans are being intercepted each and every day, and juicy tidbits are learned about, say, prominent officials or other persons, there will be an almost irresistible temptation to make use of this information. Former FBI special agent Coleen Rowley who for many years monitored court-authorized electronic surveillances and wiretaps relating to organized criminal and drug conspiracy groups, recently underscored how much one can learn about someone by listening in on his/her private communications. She reminds us that the blackmail potential is clear.

What if some dirt could be dredged up, for example, on Arlen Specter, chair of the Senate Judiciary Committee? If some embarrassing material could be unearthed, might he be persuaded to drop his play to hold hearings on the eavesdropping program?

Ample Precedent for Blackmail

For those of you with no trace of gray in your hair, please know that federal government has a long history of using such monitoring and break-in authority for such purposes. J. Edgar Hoover was adept at using information so acquired not only to pursue those he suspected of Communist or “Un-American” activities, but also to maintain his power and influence for 47 years over Presidents, members of Congress, and other power brokers. The FBI’s COINTELPRO activity’s use of such information to harass and discredit Dr. Martin Luther King, Jr. is a particularly glaring example of such abuse. And Nixon’s access to such information gave him the inside track on how to neutralize those on his long “enemies list.”

Think about it. Would you trust a Karl Rove, a Dick Cheney, an Elliot Abrams, a Roberto Gonzales, an I. Lewis Libby, a David Addington, or a John Bolton with such information? With the obsequious example set by Gen. Hayden, no director of NSA is likely to keep it from them. What might they be likely to do with it?

Abuse of private information can be even more dangerous than the loss of the personal privacy that so many say they are willing to trade for a bit more security. Rather, such abuse constitutes serious trammeling of civil liberties and-still worse-can tip the precarious balance of constitutional checks and balances. It was, after all, precisely because of such abuses that the FISA law was passed in the first place.

RAY McGOVERN works for Tell the Word, the publishing arm of the ecumenical Church of the Saviour in Washington, DC. He is on the Steering Group of Veteran Intelligence Professionals for Sanity (VIPS), and has a chapter “Sham Dunk: Cooking Intelligence for the President” in the recently published collection on the Iraq war, Neo-CONNED Again!

A shorter version of this article has appeared on tompaine.com.


Ray McGovern was an Army officer and CIA analyst for almost 30 year. He now serves on the Steering Group of Veteran Intelligence Professionals for Sanity.  He is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press). He can be reached at: rrmcgovern@gmail.com. A version of this article first appeared on Consortiumnews.com.