Last week Noah Shachtman from
Defense Tech speculated that the whole domestic spying case may involve
new technologies used to spy on people. As he states, it is all highly speculative, but after today's press conference, I think he may be on to something.
Noah's argument starts with the fact that the administration's (variety) of answers make no sense.
The idea that the Bush Administration needed to bypass the courts to get wiretaps quickly makes no sense; under the current system, you can start eavesdropping, and get a warrant later. The notion that disclosing the surveillance would somehow tip off potential terrorists is laughable, too; Al Qaeda types know they're being monitored.
So why break the law? (Dons tin foil hat) Perhaps because you have something big that you want to hide, something that involves a large, intrusive, and highly secret monitoring system the scope of which is unprecedented.
The responses from the President today offer another glimpse as to this possibility. One thing that becomes apparent is that the reason has something to do with technological methods used in the surveillance world. When first asked about why he declined seeking a FISA warrant, Bush went on to talk about Osama Bin Laden's satellite phone.
Let me give you an example about my concerns about letting the enemy know what may or may not be happening.
In the late 1990s, our government was following Osama bin Laden because he was using a certain type of telephone. And then the fact that we were following Osama bin Laden because he was using a certain type of telephone made it into the press as the result of a leak.
And guess what happened. Osama bin Laden changed his behavior. He began to change how he communicated.
In addition, Bill Keller of the New York Times said that one of the reasons they sat on the story was because the administration had convinced them that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications
The desire to keep technology secret is one reason for the adminstrations desire to circumvent the courts. But as Noah noted, the workings of the secret court means that this excuse don't even come close to passing the smell test.
Bush then went on to make what could be a crucial distinction explaining his actions.
But FISAs is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect.
There is a difference between detecting, so we can prevent, and monitoring. And it's important to note the distinction between the two.
I say we use the FISA courts to monitor calls. It's a very important tool and we do use it. I just wanted to make sure we've got all tools at our disposal.
So the administration concludes there is a difference between detecting and monitoring. While FISA can be used to monitor calls, it is incapable of providing the tools the administration needs to detect. So what's a President to do? One way to detect potential terrorist activity is to cast as broad a net as possible, initiate surveillance on anyone that even looks at the administration wrong.
(Remember what Senator Graham has said about the early briefings on this program. "I came out of the room with the full sense that we were dealing with a change in technology but not policy.")
But there is a problem, what does the administration do when presenting a case based on such evidence to the secret court? The source of the administration's information comes from a program that could be illegal and they wouldn't want the court to know about it. In addition, I would imagine that using "broad based and systematic surveillance on the general populace" as the basis for developing a case for probable cause would not go over to well with the court. The solution, bypass the court in instances where your technological fishing expedition has resulted in a positive result.
(Takes off tin foil hat) This is an argument based purely on conjecture. I am not a lawyer and have never served in any type of intelligence agency. I still have yet to convince myself that this is a plausible explanation. I do think that an untold part of the story is the scope of intelligence that has been used in the instances where the administration has not gone to the court. The President has proudly talked about how he has used his "authority" thirty plus times, but I would be willing to bet there were people who were subjected to warrantless surveillance based purely on the well established legal reasoning of the "strong hunch.". Until further evidence is presented, I think my tin foil theory makes as much sense as the story the administration is trying to spin.