The Scotus Blog found the question and answer briefing given after the announcement of the new wiretap program. It’s long but this segment sticks out: (h/t Protein Wisdom)
QUESTION: Okay. Just one clarification here. Are you doing anything different than you were doing before or did you just work out a way for the FISA court to be involved at every stage and in every case?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: I’m not going to discuss precise modifications. Obviously the details of the program were never publicly discussed. The general contours of the program were, and as the letter from the Attorney General explains, the general contours under these orders allow us to do the same thing and to target the same types of communications. And critically the determination was made that operating under the orders that we’ve obtained here provides the speed and agility necessary to effectively conduct that surveillance in a way that will protect—there’s no compromise in national security.
I think the President would not have allowed this to go forward if it were determined that it would compromise national security.
QUESTION: So you’re saying you’re not doing anything different, all you’re doing is working out a way for this to be handled in a bureaucratic fashion that does not in any way impinge on what you thought needed to be done?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Let me just say it this way, the objectives of the program haven’t changed and the capabilities of the intelligence agencies to operate such a program have not changed as a result of these orders.
[…]SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Keep in mind, if I could jump in for a second, one thing that has changed—and this goes back to speed and agility issues, not only did we need to make sure that the legal approach we’re using provided the necessary speed and agility, we need to make sure that we over here at the Department of Justice have the infrastructure we need in place—process. And one thing that did change was—authorization earlier this year, last year, the National Security Division, which is a new agency in the Department of Justice, which will—be coordinating with the FISA Court on all kinds of matters including this one. So we’re now equipped in a way we weren’t before to handle this work.
Listen, it’s common sense here. The only way to get a quick wiretap is to have the power of a anticipatory warrant. As Orin Kerr explains here, this is a warrant in which the wiretap is immediately approved if several triggers occur:
What’s going on? As with everything about this program, we can’t be sure; we don’t know the facts, so we’re stuck with making barely-educated guesses. But it sounds to me like the FISA Court judges have agreed to issue anticipatory warrants. The traditional warrant process requires the government to write up the facts in an application and let the judge decide whether those facts amount to probable cause. If you were looking for a way to speed up that process — and both sides were in a mood to be “innovative” — one fairly straightfoward alternative would be to use anticipatory warrants.
An anticipatory warrant lets the government conduct surveillance when a specific set of triggering facts occurs. The judge agrees ahead of time that if those facts occur, probable cause will exist and the monitoring can occur under the warrant. The idea is that there isn’t enough time to get a warrant right at that second, so the warrant can be “pre-approved” by the Judge and used by the government when the triggering event happens.
And guess what? According to Orin, the Supreme Court, for the first time, has approved anticipatory warrants:
What’s the mystery legal development that helped make this possible? If my guesses are on the right track, it’s probably the Supreme Court’s decision in United States v. Grubbs, which was handed down on March 21, 2006. The Grubbs case is the first Supreme Court decision approving the use of anticipatory warrants.
Ta Da!
Common sense here people. All those on the left putting their hands up in the air in victory better chill, as well as those on the right wailing that we have lost. Neither is true. What IS true tho, is that the Country now has a wiretap law, within FISA, that will allow quick wiretaps of calls into and out of the US by terrorists.
This, my friends, is a good thing.
To think some of you believe that Bush would just capitulate on something this important….give me a break.
UPDATE
Shane Harris at Defense Tech has some comments on the AG’s briefing to Congress:
Gonzales also said that the administration submitted an “application” for this order to the judge, and that it was “innovative.” To the first part—application—this raises the question, which the Justice Department hasn’t answered, of whether this recent order applied to one particular intercept, to more than one, or to the entire program. Sen. Schumer pressed Gonzales for some specificity on this point, but the attorney general declined to discuss what he said were “operational details” of the matter. But reading between the lines a bit, I suspect that Gonzales means the administration has come up with an application for electronic surveillance, one that that fits the special parameters of the NSA program, and that this “innovative” application is different from a traditional FISA application. “It took some time for a judge to get comfortable” with this application, Gonzales said, which I think implies that this application is, indeed, unusual. Whether it will be used on a case-by-case basis, or whether it will cover any and all surveillance conducted under the parameters of the NSA program is unclear. But presumably, if a judge has found this new application acceptable, and has ruled that it does work under the intelligence surveillance law, then the administration would use it again if necessary.
More evidence that this is not some cookie cutter program designed to hinder our ability to gather intelligence. Quite the contrary.
See author page
We won! We won! We … Say wha’? … Nevermind.
I added an excerpt and link at NSA Eavesdropping Now Court Approved – Permanently