On Wiretaps and Minutemen

In December 2005 we learned that the NSA was conducting warrantless wiretapping of American citizens who were believed to be in contact with terrorists overseas. This program is in violation of the Foreign Intelligence Surveillance Act which outlaws warrantless domestic wiretaps but which provides a mechanism to obtain a warrant in secret from a special FISA court. But getting a warrant from the Court can take time–a precious commodity in our war on terrorism. I say hooray for the Bush Administration for realizing that strictly following the law could lead to missed phone calls and missed opportunities to catch a terrorist plot to kill thousands of Americans! I don't want our security agents to sit around twiddling their thumbs while they wait for a FISA judge to sign a warrant. When an agent finds out that someone is in contact with a suspected overseas terrorist I want him to tap a phone, not waste his time asking a Judge "Mother, may I?"

BUT THE FISA LAW ALSO ALLOWS RETROACTIVE WARRANTS!

As the Electronic Privacy Information Center notes:

. . . FISA allows for retroactive warrant requests – up to 72 hours after they’ve begun. The standard of proof required for warrants from the FISC is low; applicants need only show probable cause that the subject is an “agent of a foreign power.” Also, historically, the FISC only has rejected a handful of requests; in fact, it rejected none of the applications for secret surveillance in 2004.

So while I am happy that our agents weren't waiting around to initiate a wiretap, there is no justification for their failure to get the FISA Court's seal of approval after the fact. Three days is plenty of time to request a warrant. The circumvention of the FISA law is disturbing because it was enacted to prevent the types of abuses that went on during the 1960s. There are only four reasons that I can see for circumventing the law.

1. As the Electronic Privacy Information Center stated: "Another justification administration officials have put forth for bypassing the FISC with the NSA domestic surveillance program has to do with the vastness of the operation. Because the number of telephone and Internet communications being monitored was so large, the officials did not believe that they could obtain fast approval for all of them." But even if officials were unable to ask for permission in a timely manner, that is no excuse for them not to even try. Better for them to take four days or six days or even two weeks for them to submit a request to the FISA Court rather than not submit any request at all. At least that way there would be some checks and balances in the process.
2. The Bush Administration in its arrogance thought it was above the law.
3. The Bush Administration didn't believe that the FISA Court would sign off on its requests despite the fact that they it approved all 1754 secret surveillance applications in 2004. If this was the case then the evidence the Administration had linking the surveillance target to overseas terrorists must have been very weak.
4. The Bush Administration knew it would never get approval for some of the wiretaps because the wiretaps were improper. Perhaps they were targeting political opponents or domestic troublemakers.

Up to now I never would have even considered the fourth possibility. I have seen lots of incompetence within the Bush Administration. I have even seen some hubris. But I have never seen mendacity.

Yesterday I heard the story that someone fairly high up in the U.S. Border Patrol has been (allegedly) informing the Mexican government about the positions and operations of the Minutemen Civil Defense Corps. The Minutemen are a group of courageous private citizens who are doing what they can to prevent illegal immigrants from entering the U.S. They should be getting praises for trying to help our government enforce its immigration laws. Instead, the government has allegedly betrayed them. Whoever tipped off the Mexicans has reduced the effectiveness of the Minuteman and possibly jeopardized their lives.

Spokesmen for the Customs and Border Protection agency at DHS have denied these reports, but Michelle Malkin has assembled some pretty convincing evidence that rips the denials to shreds.

I have no idea how far up this goes, but if President Bush approved of a program to inform the Mexican government about the activities of private citizens then this is an impeachable offense. And if President Bush doesn't put an immediate halt to such a program (assuming it exists), then this would be negligence that comes very close to being impeach-worthy.

Whoever approved of this program (assuming it exists), was mendacious. I hope the President has not signed off on this mendacity. At this point I have no evidence to accuse him of doing so. But if it turns out that the President was aware of, and approved of this, then I have to wonder if there could be a relationship between the two mendacities.

Is it possible that Administration officials didn't try to get a warrant for domestic wiretapping because they were targeting Americans who were simply annoying them? Is it possible that the Administration is unhappy with the Minutemen for interfering with its anything goes attitude toward immigration from Mexico? Is it possible that some of the domestic wiretaps were aimed at the Minutemen?

I have not got a scintilla of evidence to connect these two scandals. This is nothing more than wild speculation on my part. But I remember that back in the 1980s officials in the Reagan Administration illegally funded the Contras in Nicaragua. And they sold arms to Iran. And the two scandals merged into one.