Like, rather than go around FISA, why not use the 72 hour provision? That way the NSA can immediately monitor a suspected terrorist call and simply file the paperwork later. Right?
"NSA just can't go up on a number for 72 hours while it finishes out the paperwork. The attorney general is the only one who can authorize what's called an emergency FISA."
Ah, I see. So even under the 72 hour provision, the attorney general still has to approve the call. And the attorney general requires a certain amount of paperwork before he'll approve.
"The standard the attorney general must have is that he has sufficient evidence in front of him that he believes he can substantiate that in front of the FISA court."
Oh wow, so the AG actually requires the same amount of evidence that would be needed to convince the FISA court that monitoring the call is warranted. I can see how compiling that kind of evidence could slow things down.
But it still sounds like the issue is mainly one of shuffling papers and completing forms and getting approvals and, you know, process stuff. Surely there would be a way of getting around these process hurdles without totally bypassing the FISA court.
"If FISA worked just as well, why wouldn't I use FISA? To save typing? No. There is an operational impact here, and I have two paths in front of me, both of them lawful, one FISA, one the presidential -- the president's authorization. And we go down this path because our operational judgment is it is much more effective. So we do it for that reason."
So it's not just process then. It's operational. What is the operational difference?
"The president's authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant..."
I see. With the Presidential authorization, the threshold has been lowered a bit for when a call can be monitored. You guys have more flexibility to go after the bad guys.
"[we]specifically target communications we have reason to believe are associated with al Qaeda, and we use all of the tools, Katie, available to us to do that."
So the threshold under the Presidential authorization is "reason to believe" rather than "probable cause" as under FISA.
"but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates."
So the threshold is lower but more limited... it's narrower. Even so, isn't there a 4th Amendment problem with the lower threshold?
"what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable."
So what the NSA is doing under the Presidential authorization is surveilling without a FISA warrant in the narrow instance of international calls that are believed to involve alQueda. This activity meets constitutional muster under the 4th Amendment so long as it is "reasonable". Under the circumstances it does seem reasonable.
The PowerLine writer caps things off with this:
General Hayden was correct, of course, as to the constitutional standard. It is not unreasonable to intercept international communications that are reasonably believed to involve al Qaeda; therefore, the program is constitutional.
Example: If a cop smells pot in your car, he has reason to believe you have been smoking it and therefore has probable cause to search your car WITHOUT A WARRANT.