Originally posted by poncho:
Secret court modified wiretap requests
WASHINGTON -- Government records show that the administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court's approval.
A review of Justice Department reports to Congress shows that the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than from the four previous presidential administrations combined.
The court's repeated intervention in Bush administration wiretap requests may explain why the president decided to bypass the court nearly four years ago to launch secret National Security Agency spying on hundreds and possibly thousands of Americans and foreigners inside the United States, according to James Bamford, an acknowledged authority on the supersecret NSA, which intercepts telephone calls, e-mails, faxes and Internet communications.
Then comes the question, why were they modifying so many requests?
It goes to an ongoing dispute the Administration has had with the FISA court over Section 218 of the Patriot Act.
The FISA Court interpreted it one way ,and the Administration interpreted it another.
In 2002 AG John Ashcroft requested the FISA Court of Review (a 3 judge panel never used before) to resolve the issue. They ruled in favor of the Administration's interpretation.
It could be the FISA court resented the decision and decided to interfere with Administration requests as much as they could. To reinforce their objections, so to speak. For the first time ever, all requests were under the FISA court microscope.
"Section 218
Section 218 amends FISA by changing the certification requirement when the government seeks a FISA surveillance or search order. Previously, the government was required to certify that "the purpose" of the application was to obtain foreign intelligence information. After section 218, the government must certify that obtaining foreign intelligence information is "a significant purpose" of the application. This change was designed to promote information sharing between intelligence and law enforcement officials and to eliminate what has become known as the "wall" that separated law enforcement and intelligence investigations.
The FISA, passed in 1978, sets forth procedures for the conduct of electronic surveillance and physical searches for foreign intelligence purposes. Over the years, the Department of Justice interpreted FISA’s requirement that "the purpose" of collection be foreign intelligence to restrict the use of FISA collection procedures when a law enforcement investigation was involved. The restriction was designed to ensure that prosecutors and criminal investigators did not use FISA to circumvent the more rigorous warrant requirements for criminal cases. But law enforcement and foreign intelligence investigations often overlap, and enforcing this separation between intelligence and law enforcement investigations – the "wall" – inhibited coordination of these investigations and the sharing of foreign intelligence information with law enforcement officials. The change to "significant purpose" was intended to clarify that no such separation is necessary.
It is not clear whether the change in section 218 was legally necessary to eliminate the "wall." The Department of Justice argued to the FISA Court of Review in 2002 that the original FISA standard did not require the restrictions that the Department of Justice imposed over the years, and the court appears to have agreed. This leaves the precise legal effect of a sunset of section 218 somewhat murky."
