No Such Agency, No Such Program

In all the discussion of whether or not GWB has violated the law in ordering a broad program of warrantless wiretaps, two questions aren't getting the attention they deserve:

1) What, exactly, did the president order?

2) Why didn't the executive bother to use the FISA process?

I suspect the answers to these questions are connected. Taking the last one first, there are a number of possibilities. Some of these make more sense than others.

Perhaps the administration believed that the FISA court (and attendant offices) has been compromised. This doesn't make sense. If it were the case, there would be a investigation and removal of court personnel, not simply bypassing (or misleading) the court. To do otherwise would be to miss the whole point of what the court is about.

Perhaps the process of application is too complex and/or time-consuming to work through the court and still get the surveillance done. Leaving aside the constitutional issues for a moment, this still doesn't make sense. First, the track record for the court is that it has been very supportive of requests from the intelligence agancies. Second, the act allows for a retrospective approval process--spy now, justify later--so time isn't the critical problem.

Perhaps the adminstration knew it didn't have (and would never have) a sufficient case to justify the intercepts, and chose to ignore the process. This is possible. Then the question is why?

Perhaps, as some have suggested (Defense Tech and William Arkin, for two) the technology of the program was (is) somehow sufficiently different to make the process irrelevant. For example, approving a wiretap presupposes the ability the identify an individual target, or set of targets. It may be a particular person, so a particular phone, or a particular (limited) system. What if the plan is to intercept everything, filter it, process it, and then use this information to determine who needs to be targeted more directly? Data mining is growing more and more practical. Pattern analysis can show who the unusual cases are--but only in contrast to everthing else. Thus, the "everything else" has to be monitored, too. And that, by most standards, would be a violation of the 4th amendment beyond anything the FISA court is able to approve.

Also consider Congress' reaction to the "Total Information Awareness" proposal floated after 9/11. It was too much, Congress said. TIA "died". But the desire remained, and the technology remained, and there are lots of places to hide a similar program under another name.

Add to that the likelihood that major telecom carriers have voluntarily (or otherwise) provided access to supposedly confidential conversations.

No wonder several of the key people in Congress now say they registered complaints. But in the system as it now stands that's about all they could do. To raise the issue--even with their colleagues in Congress--would be a violation of the security oaths they took to have any access to the information in the first place.

Which leads me to wonder: who leaked the story to the New York Times?