Thanks, Scott, for the kind plug. I have a couple points regarding some of the defenders of Bush’s secret surveillance.
Some defenders of the surveillance powers have argued that a FISA court decision from 2002 effectively conceded that the president has the general authority to conduct wiretaps without a warrant. But the FISA court simply does not have the constitutional authority to grant such sweeping powers to the president.
We might wonder why the administration has not relied more on warrants since 9/11, instead of so quickly resorting to FISA or sneakily going through the NSA. Amazingly, top intelligence officials recently complained about the “inefficiencies” of judicial oversight and of satisfying the “probable cause requirement.” The current deputy director of national intelligence and former NSA director, Air Force Gen. Michael V. Hayden, grumbled about the burden of paperwork even for retroactive court approval.
But even Secretary of State Colin Powell, who said on Sunday, December 25, that there is “absolutely nothing wrong” with the NSA program, also said, “My own judgment is that it didn’t seem to me, anyway, that it would have been that hard to go get the warrants. And even in the case of an emergency, you go and do it.”
I think it is fair to say that the reason they didn’t just get warrants is the same basic reason that states do anything beyond their presumed previous limits
