A year ago, the Justice Department issued a "fact sheet" detailing what it called the "myth v. reality" of its warrantless surveillance program. Among the supposed myths rebutted by the document was that "the Administration could have used FISA but simply chose not to." The Department explains that it could not have used FISA because its multiple layers of approval take too much time to respond to the fast-moving needs of counter-terrorism. Maybe that's right; maybe not. It's impossible to know given that the government has not revealed operational details of its surveillance program, claiming national security reasons.
But if the FISA process was too slow a year ago, why is it fast enough today? In announcing that henceforth the govt would seek FISA warrants for the wiretaps that, to this point, it has performed without a warrant, the Justice Department stated that it had worked out with the courts an "innovative" approach that would permit greater speed and flexibiilty. This leads to a number of questions that, one hopes, will be answered at least to the satisfaction of those in Congress investigating the program. To wit:
1) Why didn't the government go to the FISA court at the onset of the program to propose its innovation?
2) If, as the Justice Department claimed in its fact sheet, the cumbersome FISA mechanism is set forth in FISA itself, where does the FISA court get the authority to innovate around that?
3) What are we to make of the suggestion --- at least in some of the news stories --- that the administration negotiated with the FISA court over how these applications would be handled? To be sure, warrant applications are inevitably made ex parte (because to include the target in discussions would tip him, her or it off), but here it is suggested that the administration lawyers negotiated with the FISA court judges over the program as a whole, rather than making the case for particular warrants. Did any members of Congress participate in this process? If not, why not?