Bush's NSA Spying Defense

Blogger Glenn Greenwald, a lawyer with a background in First Amendment challenges, analyzes the latest Bush administration defense—delivered via Gen. Hayden on Tuesday—of its domestic eavesdropping. And finds it sorely lacking:

Something extraordinary happened yesterday: the Administration, via the appearance by former NSA Director Gen. Michael Hayden at the National Press Club, finally offered a coherent answer to the question of why the Administration bypassed FISA in order to eavesdrop on Americans. By "coherent," I don’t mean "persuasive and satisfactory." I mean only that the explanation was at least responsive to the question and capable of being understood. Since all we had been given up until this point is gibberish about how we need to be "fast and agile" in this "different war," yesterday's explanation constituted significant progress.

Contrary to the excuse offered up by Bush followers that this illegal eavesdropping was all necessitated by some sort of super-complex data mining method which rendered FISA an obsolete relic, Gen. Hayden made clear that this is not the case. Bush's eavesdropping program entailed garden-variety eavesdropping on telephone conversations - not some new technologically advanced data mining program.

SNIP

...what is not reasonable, and what most Americans would likely not want (hence the enactment of FISA), is for the Administration to be able to eavesdrop on Americans with no oversight whatsoever. Rather than the evidentiary standard for warrants, the most important part of FISA is that it allows eavesdropping on Americans only with judicial oversight in order to avoid abuse. That’s what the Administration did away with - unilaterally and in secret – and it is that (rather than the change in the evidentiary standard) which they likely would have been unable to have Congress agree to. So they went ahead and did it anyway.

We had a legislative regime in place which is incredibly permissive in allowing eavesdropping. We have a FISA court that could not have been more deferential in granting warrants. The only practical reason to bypass that process – even with a lowered evidentiary standard - is a desire to eavesdrop without having to disclose to a FISA judge whose communications are being intercepted and why. CONTINUE READING HERE.

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