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Wednesday, January 17th 2007

Baby Steps To Civil Liberty Protections

The Bush administration has conceded to allow FISC to monitor domestic phone tapping activities.

“The president has determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires,” Gonzales wrote in a letter to Senate leaders.

“Any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court,” Gonzales said.

Monitor, but will it actually hand out FISA warrants (which it virtually never turns down requests for)? More as it turns up in the news.


As I mentioned at the very end of the original post – “will it actually hand out FISA warrants?” – AG Gonzales’ explanation of FISC’s oversight function left a lot to be desired. It didn’t really explain how that oversight would shape up. It certainly didn’t sound like they were going to apply – with evidence – for traditional FISA warrants, and yet it made it sound like FISC was reviewing and giving individual permission for each request to monitor someone’s domestic communications.

So what is going on?

Well, from Decision ’08 comes a link to the famous Volokh Conspiracy blog, and its analysis,

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.

Volokh is a smart blog, but they don’t need me to say that, it is pretty popular. I know nothing about the law or the politics of this decision by the DoJ, so this analysis sounds pretty good to me.