For the second consecutive year, Justice Department applications to search or eavesdrop on suspected terrorists and spies dipped significantly, according to department figures provided to Congress.
The Justice Department sent 1,376 applications — for physical searches, electronic surveillance or some combination of the two — to the Foreign Intelligence Surveillance Court in 2009. That’s a 34 percent drop from 2008, during which the department made 2,082 applications, according to last year’s report to Congress.
In 2009, the spy court granted all but nine applications, and eight out of those nine were withdrawn voluntarily by the government. The court modified another 14 applications.
The court was established in 1978 with the Foreign Intelligence Surveillance Act. In national security investigations, the government must get the court’s approval to monitor phone conversations or e-mail messages of suspected terrorists and spies in the U.S. The law does not apply to surveillance outside the U.S., unless the target is an American.
The 2009 figures represent the second consecutive decrease in warrants approved by the court. In 2007, the spy court approved a record 2,370 warrants, about 12 percent more than in 2008.
A Justice Department official attributed the drop off to the recent changes in the law and cautioned against drawing inferences based on the numbers alone.
“The number of Foreign Intelligence Surveillance Act applications submitted to the Foreign Intelligence Surveillance Court decreased in 2008 and again in 2009 due to significant changes in the legal authorities that govern FISA surveillance — specifically, the enactment of the FISA Amendments Act in 2008 — and shifting operational demands, but the fluctuation in the number of applications does not in any way reflect a change in coverage,” the official said.
William Moschella, former Principal Associate Deputy Attorney General in the Bush administration, said the 2008 amendments eliminated the need for FISA warrants in some instances.
In a secret ruling in 2007, a FISA judge found that surveillance of purely foreign communications that pass through a U.S. communications node was illegal without a warrant. The ruling helped fuel the Bush administration’s efforts to amend the law, and several senior law enforcement and intelligence officials testified about the need to update FISA to deal with evolving communication technologies.
“They don’t impact the need for FISAs for U.S. persons,” Moschella, a shareholder at Brownstein Hyatt Farber Schreck LLP, said of the changes.
While FISA requests decreased, requests for wiretaps in criminal investigations, known as Title III applications, climbed in 2009, according to this report by the Administrative Office of the U.S. Courts.
A total of 2,376 federal and state applications for orders authorizing wiretaps was reported, a 26 percent increase over 2008. All were granted.
The 2009 FISA figures were presented in a April 30 letter from Assistant Attorney General Ronald Weich to Congress. The letter is embedded below.
Assistant Attorney General David Kris made the case for the National Security Division’s robust powers on Thursday.
At a conference sponsored by the liberal American Constitution Society, Kris told a few jokes. But he also gave a serious argument: The Department of Justice works better when it has more power.
As the audience hunched over box lunches, Kris defended the three-year-old division, which was created by a Patriot Act revision in 2006. He praised the post 9/11 tearing down of what had become known as the “wall” between intelligence gathering under the Foreign Intelligence Surveillance Act and criminal prosecution.
The FISA wall “made it harder to identify law enforcement methods,” Kris said. “If law enforcement is off the table and you’re looking elsewhere, you’re going to have to resort to solutions that may not be as appealing from a civil liberties standpoint.”
Before 9/11, the FBI and CIA were often working at cross purposes, Kris said. ”You’d have these two separate, but equal squads not coordinated. It made it difficult for the government to connect the dots.”
Kris said he’s worked hard to break down barriers among intelligence and law enforcement agencies. After he was sworn in as head of the division in April, Kris said his mantra, repeated in staff meetings, was “synergy!”
Kris said the division provides oversight that should assuage civil liberties concerns. ”It’s not really a very serious rallying cry, but it does make sense: bring in the lawyers,” Kris said.
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Only three Justice Department lawyers, including then-Deputy Attorney General John Yoo, were privy to the details of the Bush administration’s warantless eavesdropping program, according to a report released today by inspectors general from various intelligence and law enforcement agencies. Click here for The Washington Post story.
The watchdogs — from the CIA, the Defense Department, the Justice Department, the Office of the Director for National Intelligence, and the National Security Agency — could not determine how Yoo “came to deal directly with the White House on legal issues related to the TSP.”
Only Yoo, then-Attorney General John Ashcroft and intelligence policy lawyer James Baker were aware of the program initially. The watchdogs called the arrangement ”extraordinary and inappropriate” and concluded that the secrecy hindered the Justice Department’s ability to render legal advice.
From the WaPo:
One former department lawyer, Jay S. Bybee, told investigators that he was Yoo’s superior in the Office of Legal Counsel but was never read into the program and “could shed no further light” on how Yoo became the point man on memos that confirmed its legality. By following this route, the memos avoided a rigorous peer review process.
Yoo prepared hypothetical documents in in the fall of 2001 before writing a formal legal memo in November. By then, Bush had already authorized the initiative.
In that memo, Yoo concluded that the FISA law could not “restrict the president’s ability to engage in warrantless searches that protect the national security” and that “unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not- then the statute must be construed to avoid such a reading,” according to the report.
Once higher-level DOJ officials read his analysis in late 2003 and 2004, they questioned the program’s legality. The report is scant on details of the program, but the watchdogs said Yoo failed to “accurately describe the scope” of the other activities — the ones not disclosed by The New York Times in 2005 — which created “a serious impediment to recertification of the program.”
After Yoo left the department, OLC lawyers Patrick Philbin and Jack Goldsmith were briefed on the program and began meeting with Alberto Gonzales, then White House Counsel, and Vice President Dick Cheney’s chief of staff, David Addington. The White House lawyers said they would terminate the program if became a serious problem, but they continued to lobby the Justice Department to support it while the legal problems were sorted out.
On March 9, 2004, intelligence officials and Cheney met to discuss the issue without inviting Justice Department leaders. Cheney suggested that the president “may have to reauthorize without [the] blessing of DOJ,” according to previously unreported notes taken by Mueller described in today’s report. Mueller told the investigators he would have a problem with that approach.
After the now-infamous hospital rush, in which Gonzales and Andy Card tried to prevail on an ailing Ashcroft to reauthorize the program, Deputy Attorney General James Comey threatened to resign, and with him FBI Director Robert Mueller III, among other Justice officials.
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Kenneth C. Bass III, who helped helped write the Foreign Intelligence Surveillance Act when he was at the Justice Department, died of cancer April 27 at his home in Great Falls. Bass was an appellate lawyer with Sterne, Kessler, Goldstein and Fox since 2002, an adjunct professor at Georgetown University’s law school, and an expert in intellectual property law. Read his Washington Post obituary here. Read his BLT obituary here.