Monday, December 19, 2005

No Reason NOT To Use FISA, Unless....


Bush's admission of carrying out domestic spying without using established legislation and in clear violation of the US Constitution has started an absolute storm of excrement flying from all directions. Why would Bush do it? There is, as in all things surrounding secret intelligence gathering, a mystery. The problem is trying to solve it and it requires a short examination of what excuses have been offered so far.

US Attorney General Alberto Gonzales' argues that such activity is legal and extends from the Afghanistan Resolution. Rubbish. Nothing in the Afghanistan Resolution provides that authority. In fact, Gonzales' entire press briefing was ludicrous and little more than an exercise in spin lacking plausibility.

A poster at Red State (via Ezra) tried to defend the constitutional legality of the Bush administration's domestic spying only to get it all wrong and then had to publish a "mea culpa" which rendered his position completely invalid.

Still others have just come out with full justification for Bushco's actions which is little more than talking through their hats. They know precisely what everyone else knows - nothing. In any case, the specious arguments provided by the likes of National Review do nothing to explain why the administration did not seek new legislation. (Gonzales did address that. The administration didn't think such legislation would pass!)

The conditions surrounding the changes made to FISA by the Patriot Act are clearly explained in this US Navy JAG memo. The arguments provided, so far, by the Bush administration for not securing FISA court warrants are easily dismissed by the USN JAG interpretation of the rules. There is extended retroactive approval of warrants, roving authority and expanded purpose.

The Gonzales examples of FISA warrants lacking agility are all pre-9/11. The Patriot Act eliminated those barriers. Gonzales and General Hayden (Deputy Director National Intelligence) during their press briefing excused skirting FISA because of the onerous preparation required to present an application for a warrant. That simply doesn't fly. It takes no new legislation nor violation of the law to streamline a bureaucratic process. If there is a log jam, kick some ass, take some names and get on with the frigging job. And if there is an administration that has no compunction about leaving a trail of broken bodies to meet their ends, it's this one.

We can also accept that we have yet to hear anything close to the truth. This administration is made up of pathological liars. And we know the lies aren't the of the little white variety, the US adventure in Iraq and the "reasons" for going there, being the most durable piece of evidence in hand. The truth is a long way away and it isn't going to come out of the White House.

So, let's presume the obvious. The administration knowingly violated the Constitution, did not seek new legislation, did not inform Congress and avoided oversight. What, aside from the Nixonian belief that as President, George W. Bush thinks he can do anything he wants, would motivate the administration to engage in this kind of illegal act?

One point is, they thought they could get away with it. That has been the harbinger of this entire administration. They lie and they are stunned when they get caught. From fake intelligence to torture, they make up excuses, crawl into the bunker and then emerge blaming somebody else for letting them get away with it.

John Aravosis at AmericaBlog suggests that the reason for avoiding FISA warrants is that they may be spying on the media. That is entirely possible. In fact, I think it's a given. This bunch hates things that they cannot control and the media, or at least a percentage of it, is beyond their reach. The FISA court would likely go ballistic if an application for a warrant included any part of the news media. But, I would go further than that. The one thing out there that is definitely not tame is the blogosphere.

Another hallmark of the Bush administration is procedural laziness. Bush himself, is an intellectually lazy individual. From poor student to failed businessman, he has never been required to perform to a high standard. This bunch doesn't like doing the hard things. It is much easier to ignore the difficulties of diplomacy, for example, than to engage the world as a sane government. If something requires patience, skill, finesse and negotiation, it is set aside in favour of the more expedient, expensive and clumsy hammer. If the administrative process to produce applications for warrants was less than instantaneous, it would have been consistent with past behaviour to ignore the process and the warrant and simply generate an executive order creating something new. Bush, having been told by all those around him that he is all powerful, would see nothing wrong with this. He has, after all, misinterpreted his primary role, that of protecting the US Constitution.

There is, however, more to this. This is the gang that was supposed to be standing on the wall on Sept. 11, 2001. They had received prior warning and did nothing. Alerts had been issued from the field and they responded by engaging in the politics of self-interest. What they had, in those hours before the attack on New York and Washington DC, was enough information to have caused an increase in vigilance. Instead, they left the wall unguarded. They were not at their posts. And then suddenly, they had to scramble to get some sort of act together. This knee-jerk administration, caught up in the personal fable of their self-described heroism, had to act. But they had nothing to act upon. By ignoring the vital information they had diminished the importance of the intelligence gatherers. Aside from the knowledge that it was probably Osama bin Laden and al Qaeda who had attacked, they had no clear picture.

In the aftermath of 9/11 Bush and his coterie had to find out the size and scope of a problem they had neither studied nor which they understood. In short, they had nothing. Further, politically they were in jeopardy. While they could expect the population to rally around the President in the days following Sept. 11, they needed to demonstrate that they were firmly in charge and in possession of all the information necessary to fend off any further attacks. But they had nothing. So, without even knowing what they were looking for, they went on an electronic fishing expedition.

It would be impossible to go to the FISA court with an application for a warrant which did not identify either a person or a defined target. With nowhere to look, they used "shotgun effect". Hit the broad system in roughly the correct area and the likelihood of turning up something useful from one spot is reasonably good. But they could not get a warrant for that. It is pure speculation at this point, but it is not out of the realm of reason that Bush ordered NSA to intercept any and all communications within and outside the US until they turned up solid intelligence of al Qaeda activity. That's fishing, and they could not get a warrant for that. The enemy they sought out was nobody and everybody, but everyone was a suspect.

The Bush administration, populated as it is with swine like Rove, Libby, Perle, Cheney and a host of others, has a narrow view of the enemy. Basically, it is anyone or any group who would bring them down. Whether that is a member of al Qaeda or a US citizen who loudly disagrees with the administration's prosecution of a war, both are the enemy. The former is labeled a terrorist; the latter is labeled a traitor. How many times has Bush or one of his cohorts cried "treason!" whenever someone utters disagreement with his war-hawk foreign policy?

Given the duration of Bush's illegal surveillance and the amount to which he has admitted, there should be some substantial results. In that the NSA was engaged in intercepting and analyzing communications, unchecked, they should have produced by now, a rather extensive picture of any network that exists in the US. Further, because of the unimpeded ability of the NSA to vary the target based on an earlier intercept, they should have a complete or near complete intelligence analysis of al Qaeda and their operations worldwide. Unless this surveillance was too focused on something else.

So, what is the disposition of Osama bin Laden? Or are we to believe he's been maintaining radio silence for the past four years?

We haven't even scratched the surface of this nightmare.

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