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18 | The Perfect Storm of Politics, Ideology, and Crisis Prior to September 11, the government conducted national security surveillance under the Foreign Intelligence Surveillance Act (FISA).62 FISA, passed in 1978 after revelations about warrantless surveillance in the Nixon administration, imposed checks on wiretapping and other forms of surveillance in national security cases. But Congress also recognized the important role of lawful surveillance in protecting national security. In enacting FISA, Congress acknowledged that acts in this country linked to activity abroad can have high stakes for national security yet be more difficult to monitor and regulate than solely domestic communications.63 To address this asymmetry between possible threats and existing government tools, FISA provided that the executive could seek a warrant for surveillance from a special court if it suspected that the target of surveillance was an “agent of a foreign power.” The FISA court, composed of federal judges, was ready to sit day and night, and indeed virtually never refused a government request. The government could also tap a phone for up to seventy-two hours without a court warrant. After September 11, the administration secretly put in place a warrantless surveillance program that did an end run around FISA.64 Through the so-called Terrorist Surveillance Program (TSP), the government’s top-secret National Security Agency (NSA) colluded with many telecommunications companies to conduct warrantless surveillance on vast numbers of telephone calls and other communications that either originated abroad or involved a foreign recipient of a communication from the United States.65 Although FISA already modified the Fourth Amendment’s usual requirement of individualized suspicion of wrongdoing by requiring that the target merely be an agent of a foreign power, reports of the TSP’s scope indicate that individualized suspicion was even less central under the TSP than it was under the already-truncated FISA regime. While concrete information about the TSP remains classified, reports from a range of sources suggest that the program as initially conceived permitted the NSA to eavesdrop without a warrant on electronic communications by thousands of persons in the United States, as long as one party to the conversation appeared to be on foreign soil.66 The administration did not even consider asking Congress to amend FISA, although once New York Times reporters revealed the existence of the TSP in late 2005, Congress proved willing to enact most of the changes that the administration sought. While administration officials briefed a small group of senators and representatives who served in high positions on each house’s Intelligence Committee, the administration did not respond to a 2003 query from Senator Jay Rockefeller of West Virginia, expressing concerns about the The Perfect Storm of Politics, Ideology, and Crisis | 19 program.67 Vice President Cheney, in an interview in January 2009, made light of Rockefeller’s letter, asserting that the senator was merely trying to cover his own behind.68 Conscientious executive branch officials who bridled at the program also did not receive a respectful hearing; instead the program’s prime movers, particularly Cheney and his aide Addington, simply shut them out of the loop. For example, Ashcroft’s deputy, Larry Thompson, viewed the program as dangerously overbroad, and declined to sign off on surveillance requests.69 White House insiders worked with John Yoo and other true believers at Justice to run a detour around Thompson’s reluctance. It took a subsequent revolt of administration lawyers to secure changes in the program. Even with these changes, however, the program seemingly failed to comply with FISA. The Patriot Act and Monolithic Power While unilateral presidential action was a staple of the Bush presidency, sometimes Congress was complicit in the creation of detours. This eased constitutional concerns, but nevertheless made for troubling policy. For exhibit A, consider portions of the Patriot Act that made it easier for the FBI to obtain National Security Letters (NSLs). The Patriot Act, passed with alarming haste after September 11, created a giant detour from the decentralized sites of power that had tempered federal prosecutorial authority in the pre–September 11 environment. Here, as elsewhere, a bipartisan majority of members of Congress enthusiastically endorsed the legislation. It passed after minimal perfunctory debate, itself a detour from typical congressional practice. Congressman Sensenbrenner echoed this bipartisan majority in announcing that “we have to change the way we think about the safety and security of our country and its people. We must develop new weapons for protections against this new kind of war.”70 Discussing some of...

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