To me, the biggest question arising from Friday’s New York Times article outing the White House for authorizing wiretaps of Americans without seeking warrants is whether or not the wiretaps were illegal. Adam Shostack has a good roundup of the current thinking on this question.
Attorney General Alberto Gonzales states specifically that the wiretaps would be illegal under the Foreign Intelligence Surveillance Act, which makes sense considering that FISA established a secret court specfically for the purpose of issuing warrants for wiretapping Americans. The President chose instead to circumvent that court and allow the wiretaps without any judicial oversight at all. Gonzales claims that he has the authority to do so under the 2001 bill authorizing the use of force against Afghanistan and more ephemerally because of his “inherent powers,” whatever that means.
What I need to have explained is why the FISA provisions for these wiretaps were insufficient for this administration? FISA not only provides the option to seek warrants to eavesdrop on Americans, but also allows them to eavesdrop on someone for 72 hours before actually seeking a warrant, to be used in cases where the matter is too urgent to ask the court first. (In the Washington Post article Gonzales and another administration official claim that FISA is outdated, but they fail to explain the ways in which is outdated or why the President didn’t go to Congress and ask for new legislation updating FISA. Given that under FISA you can start a wiretap immediately before seeking court permission, I fail to see how it doesn’t provide the “agility” they claim to need.)
Update: the court established by FISA granted 15,624 warrants between 1979 and 2002 and declined zero.
Another update: DefenseTech says that technology may be the answer to why the Bush administration refused to take their wiretapping requests to the FISA court.
Update: Be sure to read Mark Schmitt, who argues succinctly that the law in question here is the fourth amendment, and that the wiretaps violated it.