NSA wiretaps: Why was the existing secret warrant system circumvented?
Posted by: Jack Grant in Commentary, Patterns in the White NoiseAmid all the sound and fury over the revelation of NSA monitoring of international communications of US citizens without warrants, something fundamental is being overlooked as the usual suspects give their usually suspect blatherings that are more predictible than the rising of the sun in the east every morning.
The situation is summarized best by Lt. Col Rick Francona, USAF (Retired) a military analyst for MSNBC in “NSA - Spying on Americans?” at Hardblogger on the MSNBC web site:
The governing document for this situation is United States Signals Intelligence Directive (USSID) 18. I worked in the U.S. SIGINT System for many years — this directive is taken seriously. From what I have observed, violation of USSID 18 is a career-ending event. NSA requires that its officers and military personnel assigned there to complete annual USSID 18 training.
The long-established mechanism to authorize the intercept of internal or U.S.-entity communications is via a federal warrant issued under the provisions of the Foreign Intelligence Surveillance Act (FISA), most often referred to as “a FISA warrant.” It is the FISA court that provides oversight to ensure that NSA’s actions are in fact necessary and in keeping with U.S. law. USSID 18 also permits collection of these U.S. communications when authorized by the Attorney General in exceptional circumstances (emergencies, imminent danger, threat to life, etc.).
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My question: Was an Executive Order needed? Were the existing provisions of FISA not sufficient to authorize NSA collection of these communications? Since very few FISA requests are turned down, what special situations arose that were not covered by the FISA?
This is the key question that has been in my mind ever since the story first appeared.
This question needs to be answered, but until then it should be noted that this administration has not shown a tendency towards preserving the individual freedoms enshrined in the Constitution and the Bill of Rights. To the contrary, the administration appears to be trying to circumvent the checks-and-balances system in order to allow the executive branch to operate without any restraints. Because of that history, I view this executive order with extreme suspicion.
To quote correctly (rather than mangle it as President George W. Bush once did): Fool me once, shame on you. Fool me twice, shame on me.
Patterns are important, and reveal more than the actors creating the patterns realize.
Once is happenstance.
Twice is coincidence.
Three occurrances? Time to look more closely, boys and girls.
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This appears to be justifiable only this way: The President can ignore any law that he finds inconvenient (or maybe just dislikes) any time that he believes that he is waging a war. Even if it was not subject to a Congressional Declaration of War. In short, the President is above the law.
On the other hand, if one believes that nobody is above the law, two things should happen immediately:
- The Congress should determine who gave the president legal advice on this. And if anyone told him what he was doing was legal, they should be disbarred.
- If the President does not have such a legal opinion, he should be indicted. (And probably impeached.) If he does have such an opinion, and actually believed it, he is merely a fool — which is unfortunate, but perhaps not legally culpable.
Note that I speak as a life-long Republican. And _I_ think I’m a conservative. This is not a partisan matter; this is a matter of the rule of law in this country.
[...] I’ve been trying to reconcile the recent revelation regarding the authorization given by the President of the United States for the National Security Agency (aka the NSA) to monitor communications by US citizens without warrants, even those authorized by the FISA courts, which are almost notorious in their refusal to deny permissions for wiretaps. [...]