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We tried different doses but at the end I was far worse off than when I started? 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.
As Kevin Drum put it : General Michael Hayden, the deputy director of national intelligence, defended the NSA's domestic spying program today: Hayden stressed that the program "is not a drift net over Dearborn or Lackawanna or Freemont, grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about.
This is targeted and focused.
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Hayden is saying that the NSA program isn't some kind of large-scale data mining operation that the authors of the FISA act never could have foreseen. Rather, it's "targeted and focused" and involves "only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates. Another few hundred requests wouldn't faze them in the least.
Kevin is exactly right — both about what Hayden said and about the under-noticed significance of it. Hayden made clear several times that the decision to bypass FISA had nothing to do with any sort of data-mining operation: You know, I tried to make this as clear as I could in prepared remarks. I said this isn't a drift net, all right? I said we're not there sucking up coms and then using some of these magically alleged keyword searches -- "Did he say 'jihad'? Let's get --" I mean, that is not. This is targeted, this is focused. This is about al Qaeda.
They therefore lowered the standard from "probable cause" to "reasonable basis to believe," and also eliminated the legal requirement that a federal judge approve of the eavesdropping and replaced it with the requirement that a NSA "shift supervisor" approve — which is all a way of saying that they "changed" i. Hayden: 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 , 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.
QUESTION: Just to clarify sort of what's been said, from what I've heard you say today and an earlier press conference, the change from going around the FISA law was to -- one of them was to lower the standard from what they call for, which is basically probable cause to a reasonable basis; and then to take it away from a federal court judge, the FISA court judge, and hand it over to a shift supervisor at NSA.
Is that what we're talking about here -- just for clarification? The people who make the judgment, and the one you just referred to, there are only a handful of people at NSA who can make that decision. To save typing? 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. To appreciate just how illegal this non-FISA "second path" for eavesdropping is, one can just read Section of FISA, which expressly provides that "[a] person is guilty of an offense if he intentionally - 1 engages in electronic surveillance under color of law except as authorized by statute.
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Anyone who eavesdrops in accordance with a "second path" -- which is exactly what Gen. Hayden said the Administration was doing and continues to do -- is, by definition, breaking the law and committing a crime.
But by all accounts, that never happened. When the President ordered this "second path" for eavesdropping, a more rubber-stamping court than the FISA court would be hard to imagine.
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Hayden claimed, the Administration is only eavesdropping on "specifically target communications we have reason to believe are associated with al Qaeda. Hayden yesterday, is the obvious question of why they did not seek to have the FISA standards amended if they were too onerous. As Kevin Drum notes, it is virtually certain that a Senate which passed the Patriot Act with only a single Senator voting against it — and which actually did change part of the FISA procedure when enacting the Patriot Act — would have given the Administration whatever changes it wanted to the FISA standards.
It seems that what really attracted the Administration when bypassing FISA was not some desire to lower the evidentiary standard for obtaining warrants since it was obtaining all the warrants it wanted and since it could certainly have persuaded Congress to amend the standard , but rather, the ability to eavesdrop without having to tell any Federal Judge on whom they were eavesdropping.
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