Wiretapping and the Efficiency of Court Warrants

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The White House says the war on terror is different from the Cold War, when the Foreign Intelligence Surveillance Act was created, and that courts cannot issue warrants fast enough. But James Bamford, author of Body of Secrets, says the 1978 law was designed to allow the government to act quickly.


President Bush has again defended his decision to allow spying on suspected terrorists in the United States. Speaking at a White House news conference yesterday, the president added this justification for why he has the legal authority to go around FISA, or the Foreign Intelligence Surveillance Act.

President GEORGE W. BUSH: There is a difference between detecting so we can prevent and monitoring, and it's important to note the distinction between the two.

MONTAGNE: James Bamford sees no such distinction. He's the author of "Body Secrets: Anatomy of the ULTRA-Secret National Security Agency." He says that when the surveillance law FISA was written in 1978, it was designed to allow the government to act quickly.

Mr. JAMES BAMFORD (Author): There's emergency procedures in the bill where they can begin eavesdropping immediately. And then they have 24 hours--or I think it's been extended to maybe 48 hours or whatever--to retroactively go back and ask for the permission. This is a court that hears exclusively from the government, and it's a court that has turned the government down less than 10 times in close to 30 years after 15,000 requests. So it's not exactly an onerous procedure to go to the court and get permission.

MONTAGNE: The Bush administration's now putting forward another defense for why it needs to take these extraordinary means. Here's Attorney General Alberto Gonzales.

Attorney General ALBERTO GONZALES: The changes in technology have been dramatic, and we need to be able to use other tools which will allow us to act more quickly or more agile in responding to the threat by al-Qaeda.

MONTAGNE: What did Attorney General Alberto Gonzales mean by that, technology in a way getting ahead?

Mr. BAMFORD: There are some technical areas that really have nothing to do with the issue at hand here, but I mean, one of the technical areas, for example--if you're monitoring somebody in Spain speaking with--to somebody in Italy, for example, and they're doing this at 10 in the morning in European time, well, there are times when that information will be sent to Italy or some other place, to Tehran, via the United States because that's the very busy time over in Europe, and it's a very slow time in the United States. So it complicates things very much sort of legally because there are no restrictions on eavesdropping on non-US citizens outside the United States.

But if that signal all of a sudden transits New York, then it's not a totally foreign communications anymore. Now it's partly a US communications because those two voices are going through New York City even though the people aren't there. So these are some of the technical problems that they've come up with. But none of that has really anything to do with the fact that if they want to eavesdrop on somebody in the United States, there's one and only one procedure to do it by, and that's to go to the court. And even if the FISA court turns the government down, there's actually a FISA appeals court that has only heard one case. And even if that court turns the government down, it can go before the US Supreme Court immediately for an in-camera ex parte session. So you've got three bites of the apple there, and the odds of the government losing and not getting a wiretap are extremely small.

MONTAGNE: Just finally, is there evidence that this practice of intercepting international communications of people inside the US has resulted in any important information that would be useful in the war on terror?

Mr. BAMFORD: Well, I would assume that there are many times when it's useful. That's why the procedure is there. And again, it's sort of beside the point, because what we're talking about here is a procedure, and you're either secretly eavesdropping on people and violating the law, or you're going through the court and doing it properly. You're still getting the same information. This is an extremely dangerous agency that has to be watched very closely so that it doesn't turn into an Orwellian "1984." This is an agency that can eavesdrop on anybody anywhere at any time. There's only one protection between the NSA and the American public, and that's called the Foreign Intelligence Surveillance court. They act very quickly, and they almost always say yes. So I don't know why that's a problem.

MONTAGNE: James Bamford, thanks very much for talking with us.

Mr. BAMFORD: My pleasure, Renee.

MONTAGNE: James Bamford is the author of "Body of Secrets: Anatomy of the ULTRA-Secret National Security Agency."

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