The initial outrage over the revelation that the Bush administration has been using the National Security Agency to illegally spy on American citizens has given way to perplexed questions about why it happened. If the spying was conducted using the ordinary sorts of surveillance techniques -- wiretaps and so forth -- couldn't the administration have very easily obtained the required permission from the FISA Court?
Discussion on the left-leaning blogs centers on the wide latitude historically allowed for government investigations by the Foreign Intelligence Security Act Court -- the warrant-granting agency created in 1978 in the wake of Watergate.
At the influential "Talking Points Memo" blog, proprieter Joshua Micah Marshall notes that "Wiretaps are conducted around the country every day. The FISA Court alone approves something like a half a dozen a day in highly classified national security or espionage related cases."
"The only issue here," Marshall pointedly observes, "is why the president decided to go around the normal rules that govern such surveillance, why he chose to make himself above the law."
But Marshall himself had already gone a long way toward answering that question.
In a December 17 posting, Marshall reports that in its entire history, "the FISA Court has rejected (only) four government applications for warrants," but then further explains, "Only, it's not quite that simple."
The Department of Justice report Marshall cites also explains that "in 2003, the Court 'made substantive modifications to the government's proposed orders' in 79 applications out of 1727 applications made and 1724 approved."
"In 2004," the same report continues, "the number of approved warrants with 'substantive modifications' was 94 out of a total of 1758." However, before 2003, the court hardly ever demanded modifications in the government's request for warrants. There were less than half a dozen such demands from 2000 through 2002.
"2003 Is where the change comes," Marshall concludes, and implies that the Bush administration refused to submit surveillance activities requests to the FISA Court out of fear that the court would demand that the scope of those activities, or the techniques used to conduct them, be modified.
This raises the possibility that the administration is using new eavesdropping technologies they want to keep secret. The blog "DefenseTech.org" links to a December 18 Washington Post editorial, "Pushing the Limits of Wartime Powers," which quotes former Senator Bob Graham (D-Fla), who was briefed on the internal spying as saying, "I came out of the room with the full sense that we were dealing with a change in technology but not policy, with new opportunities to intercept overseas calls that passed through U.S. switches."
Likewise, New York Times Editor Bill Keller, while explaining to CNN why his paper waited a year to publish its story revealing the existence of the domesting spying operation, revealed that "...we satisfied ourselves that we could write about this program -- withholding a number of technical details -- in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record."
At Dave Lindorff's "This Can't Be Happening" blog, a December 17 posting recalled Bush's first-term plans to assign Admiral John Poindexter, currently the U.S. Ambassador to Iraq, with developing a "Total Information Awareness" program.
"TIA was officially dumped when word of it leaked out," Lindorff says, "but it bears mentioning that in fact, much of the hardware and software for realizing Poindexter's dark dream already exists. Carnivore--a software program that allows the Feds to scan all Internet communications for certain key words--is already in operation. American companies, in fact, have been honing these skills in products they have developed to help China monitor its Internet and phone systems. Don't think those fearsome capabilities have gone unnoticed in the White House."
"Without calling it TIA," Lindorff concludes, "our government too has begun massively snooping on Americans’ private communications."
Tying these various threads together yields the answer to the question the blogs are asking: President Bush, when ordering the National Security Agency to implement a new, wide-ranging domestic surveillance program, instructed the agency to refrain from requesting the warrants from the FISA court that would have made the activity legal. He did so out of fear that the court would disapprove of the extremely powerful "wide-net" technology the program subsequently employed, and would demand modifications in the government's investigatory techniques.
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