One question that seems to be on everyone’s mind is, why did the Bush administration feel it necessary to bypass the FISA court, when it’s possible to retroactively get wiretap authorization (what could be more expedient?), and given the fact that the court has almost always granted government requests for wiretap warrants? An interesting Washington Post article offers a possible explanation:
In explaining the program, Bush has made the distinction between detecting threats and plots and monitoring likely, known targets, as FISA would allow.
Bush administration officials believe it is not possible, in a large-scale eavesdropping effort, to provide the kind of evidence the court requires to approve a warrant. Sources knowledgeable about the program said there is no way to secure a FISA warrant when the goal is to listen in on a vast array of communications in the hopes of finding something that sounds suspicious. Attorney General Alberto R. Gonzales said the White House had tried but failed to find a way.
One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.
“For FISA, they had to put down a written justification for the wiretap,” said the official. “They couldn’t dream one up.”
The NSA program, and the technology on which it is based, makes it impossible to meet that criterion because the program is designed to intercept selected conversations in real time from among an enormous number relayed at any moment through satellites.
“There is a difference between detecting, so we can prevent, and monitoring. And it’s important to note the distinction between the two,” Bush said Monday.
I added the bold emphases.
This explanation makes sense to me, because until I read it, I was completely befuddled about why it’s a recurring talking point for McClellan and other White House spokesdroids to keep repeating the “there is a difference between detecting and monitoring” line. Back on Monday, McClellan said:
FISA was created for a different purpose in a different era. It was created back in 1978. It was created for a longer-term coverage or monitoring of agents of foreign governments in the U.S.
And since that time, there have been great advances in technology. There’s been a lot of new technology that’s been developed since that time. And FISA is an important tool. We use FISA. The President talked about that yesterday. But we need agility and speed. We need to be able to move quickly to detect and prevent attacks.
FISA is an important tool. We make use of FISA. But this is a difference between monitoring and detecting and preventing.
So, I guess “detection and prevention” is code for “sweeping surveillance of the population on the off chance that we hear something interesting”.