A Foreign Intelligence Surveillance Act court ruling several months ago is behind President Bush’s latest push directed at Congress to pass "emergency" legislation expanding wiretapping powers before the August session break. So says a leading congressman and a legal source briefed on the matter. The secret ruling by a federal judge on the FISA court has for months restricted the U.S. intelligence community’s surveillance of "suspected" terrorists overseas.
Strangely, the White House’s fervent plea to the Democratic leadership in Congress has coincided with DHS and mainstream media reports of increased terror concerns across the country. Though unrelated; terrorist attacks in London and Glasgow last month have augmented such transatlantic fears.
The White House has never publicly acknowledged the existence of the secret ruling, and the identity of the judge who wrote it remains highly classified.
However, the judge apparently concluded that the Bush administration had been overstepping its legal authorities while conducting warrantless eavesdropping even under the scaled-back surveillance program that the White House first agreed to permit the FISA court to review earlier this year, said one lawyer who has been briefed on the order but who asked not to be publicly identified because of its sensitivity.
In an interview with Fox News anchor Neal Cavuto, House Minority leader John Boehner publicly referred to the ruling for the first time. Boehner is one of the senior Republicans leading the Bush-backed campaign to convince Congress to rush the legislation through as quickly as possible – preferably before the summer recess begins at the end of the week.
Newsweek has the article written by Michael Isikoff and Mark Hosenball:
Boehner and other GOP leaders have said that the country will be at a greater risk of a terrorist attack if Congress doesn't act immediately—and they have accused Democrats of "playing politics" by balking at some of the provisions the administration is seeking.
"There's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States. This means that our intelligence agencies are missing a wide swath of potential information that could help protect the American people," Boehner added. "The Democrats have known about this for months."
Boehner's description of the scope of the ruling appears to focus on one key feature of the surveillance program—the large-scale tapping without warrants of telecommunications "switches" located in the United States; they are used to rout international calls even when both parties are overseas. But there are indications the ruling has in some instances interfered with the National Security Agency's ability to intercept phone calls where one of the parties is in the United States, as well.
Under President Bush's original executive order creating the surveillance program after the September 11 attacks, the NSA eavesdropped on such calls (including those with at least one party inside the country) without seeking specific warrants from the FISA court.
Amidst widespread criticism of the legally baseless program from Democrats and civil rights groups, the Bush administration last January agreed – without publicly explaining facets of the highly controversial program - to submit the entire surveillance program to the FISA court for review.
Some time after the Bush administration implemented the reviewed and revised program, one of the rotated FISA court judges assigned to review the case periodically; concluded that the program exceeded the NSA’s authority under the FISA Act. The judge refused to reauthorize the program in the way one earlier FISA judge had approved it. The aforementioned anonymous lawyer added that the secret court decision was a very "big deal" for the White House. Soon after, Director of National Intelligence Mike McConnell began lobbying Congress to pass the "fix" clarifying the program, and effectively granting the NSA the legal authority to tap telecom "switches" based in the U.S. without review.
Amid the latest terrorist warnings concerning the resurgence of al-Qaeda in Pakistan, the Democratically-controlled Congress capitulated once again. The Bush administration was able to gain support from key Democrats.
More from the Newsweek article:
Congressional aides (who asked not to be identified talking about ongoing negotiations) said today that Democratic and Republican leaders of the intelligence committees met until late Tuesday night trying to reach an agreement on a short-term measure that would grant some of the enhanced authority—including the ability to tap telecommunications switches without warrants—that the administration is seeking.
One stumbling block that has emerged: the administration's insistence that Attorney General Alberto Gonzales be given an expanded role to oversee the program—a particularly controversial move at the moment, given new allegations that the embattled attorney general has misled Congress about legal disputes over the surveillance program. Sen. Jay Rockefeller, the Senate Intelligence Committee chairman, said today in a statement that he has "become convinced that we must take some immediate but interim step" to expand surveillance, but that the administration proposal to grant Gonzales greater authority "is simply unacceptable."
In a conference call with reporters today, Sen. Kit Bond, a Missouri Republican and vice chairman of the Senate Intelligence Committee, lashed out at Democrats because they are resisting language in the administration proposal that would give Gonzales a new oversight role over the program.
"The Democrats don't trust anybody in the administration," Bond said when asked about the objections to expanding Gonzales's role. "They didn't like Scooter Libby, they don't like Karl Rove and most of all they don't like President Bush. I don't care who they like. We need to keep our country safe."
But Bond declined to respond when asked if it was a federal judge who created the alleged intelligence "gap" in the first place. "I can't comment on why this has occurred," Bond said, after checking with an aide about whether he could respond to a question about a ruling by a FISA judge.
"But the director of national intelligence [McConnell] has said we are significantly burdened in capturing foreign communications. It is a significant new burden."
The tragic bridge collapse last night in Minneapolis preempted MSNBC’s regular "Countdown" programming. Keith Olbermann was forced to devote the whole show to reporting the ongoing rescue attempts. But, I’m hoping tomorrow’s show will spotlight the mysteriously coincided "secret ruling/elevated-terror-alerts" phenomenon.
Hey, I hate being cynical every time this kind of thing happens but by now, it’s just a natural reflex. And, KO always puts it all together perfectly in a cohesive timeline. I fear the only way my cynicism ends, is... to impeach da bastards, every damn one of ‘em!
Throw da bums out!
Peace