[I]t 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....
What's the mystery legal development that helped make this possible? If my guesses are on the right track, it's probably the Supreme Court's decision in United States v. Grubbs, which was handed down on March 21, 2006. The Grubbs case is the first Supreme Court decision approving the use of anticipatory warrants.
January 18, 2007
What is the "innovative" arrangement with the FISA Court about the NSA program?
After a year of argument about the Adminstration's warrantless approach, there is now a new arrangement. But what is it exactly? Orin Kerr speculates:
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10 comments:
Oh this makes me feel ever so much better.
I would have thought you'd have something of your own to say about this, since it's sort of in your field of expertise.
You must be somewhat disappointed to see the administration subject itself to the law, given your fondness for its "serious" arguments of inherent Article II or AUMF powers.
Or maybe this anticipatory warrant idea offers you hope that this is just a sidestep, and you'll still get the unaccountable, extralegal surveillance that you find so comforting.
Interesting suggestion. What the Administration has been looking for all along has been a way to expedite the process, and hopefully cut down on the paperwork. Contrary to the screaming by many opposing the program, it has never been to give the Adminstration free rein to surveil anyone they want.
In any case, Orrin's discussion over at Volokh is interesting, as is the idea of anticipator warrants. We shall see as it progresses what the lawyers there think Grubbs allows and whether that is sufficient.
Bruce Hayden said...
"Contrary to the screaming by many opposing the program, it has never been to give the Adminstration free rein to surveil anyone they want."
1. Under Bush's understanding what was in the way? His good word? His honesty? Ethics?
2. No one wants to believe that the government can over reach but without any check.....well....
I believe, I believe, it's silly but I believe.
Under Bush's understanding what was in the way? His good word? His honesty? Ethics?
The point, hd, is that the people hysterically insisting that Bush just wanted the power so he could go after political enemies were wrong. He's not Nixon or Clinton; he doesn't use the government to go after his domestic political opponents.
His original plan arguably gave the Presidency too much power, but he never abused it and now seems to have settled for greater restrictions that allow the program to be used as intended while preventing it from being used in abusive, unintended ways.
Bruce Hayden said:
What the Administration has been looking for all along has been a way to expedite the process
Is there a way to expedite a process that already gives immediate approval (via the 72 hour window)? Is there something quicker than immediate?
I too am waiting with baited breath to hear Ann explain why the "serious issue" of a President's claim to the power to break the law is suddenly not so serious after all...
revenant said:
The point, hd, is that the people hysterically insisting that Bush just wanted the power so he could go after political enemies were wrong. He's not Nixon or Clinton; he doesn't use the government to go after his domestic political opponents.
Got any names to stick on those strawmen? Didn't think so.
Actually, people were "hysterically" insisting that Bush abide by the law, while also making the side point that this law was put in place in response to previous Presidential abuse in this area. I know, it's so "hysterical" for people to believe in the Rule of Law...
And as for your comment that Bush "never abused" his surveillance "power," it's just silly to assert something so clearly unknown (and unprovable) at this point. Whatever you're on, can you hook me up?
Got any names to stick on those strawmen? Didn't think so.
StrawMEN?
I can imagine partisan Democrats denying Clinton did this. I can imagine partisan Republicans denying Nixon did this. But you've got to be the only person in American who thinks that *neither* man used the government to attack his political enemies. Did you spend the last forty years living under a rock?
Actually, people were "hysterically" insisting that Bush abide by the law, while also [the usual whining]
He's acting in accordance with court instruction, which last I checked counts as abiding by the law. It isn't illegal to make Democrats wet their pants with rage and fear.
I know, it's so "hysterical" for people to believe in the Rule of Law...
Yeah, that's why so many of the anti-Bushies also supported prosecuting Clinton for perjury... oh wait. Looks like this concern for enforcing "the Rule of Law" dates to exactly January 20, 2001. Er, minus the few months where Sandy Berger was stealing classified documents.
And as for your comment that Bush "never abused" his surveillance "power," it's just silly to assert something so clearly unknown (and unprovable) at this point.
You're obviously high on fumes from your tinfoil hat polish. The Bush Administration leaks like a sieve and the intelligence community and FBI (i.e., the people doing the wiretapping) are openly hostile to the White House. It is simply insane to believe that some massive anti-Democrat surveillance campaign is going on. What, people were willing to rat out the fact that we spy on *terrorists* but not that we spy on Americans? Grow a brain.
What's fun about commenting on blogs is that you never have to remember when you were terribly wrong.
revenant has ben terribly wrong in the past, but does that stop him/her from continue being so here? Hell, no.
he doesn't use the government to go after his domestic political opponents.
You don't know that. You have no proof for that statement.
but he never abused it
You don't know that, either. You simply know he didn't abuse it as far as you and anyone you know is concerned. I should qualify the *anyone you know* part to anyone you listen to.
He's acting in accordance with court instruction, which last I checked counts as abiding by the law.
According to the most recent judgment -- by a judge, not a commenter on a blog -- no he wasn't.
Grow a brain.
That's the same attitude you gave me about grammar, but I explained that you were actually over-reacting. It seems that you, revenant, can't keep your emotions in check. Calm down. I am the only one directly attacking you :)
"he doesn't use the government to go after his domestic political opponents."
You don't know that. You have no proof for that stateme
I have no proof for the statement "The Clintons didn't murder Vince Foster", either. It is always going to be possible for some tinfoil hatter to come along and say "they cleverly concealed all the evidence!". It is essentially impossible to prove that someone *didn't* do something. I can't prove you aren't a child molester; I can't prove I don't snort cocaine.
What matters is that (a) there's no evidence it happened and (b) a coverup would require the cooperation of thousands of people with no reason to cooperate and plenty of reason to rat him out. So feel free to change my statement to "No rational person can honestly believe Bush used the government to go after his domestic political opponents" if it makes you feel better -- because *that* statement is certainly true. :)
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