Following my post earlier today about The Great Wire-Tapping Caper, I’ve been do some more reading on the whole affair, and while this might seem like an understatement, there’s something about it that has been bothering me.
The Fourth Amendment to the US Constitution says no searches or seizures without a court-issued warrant. The Foreign Intelligence Surveillance Act of 1978 provides a means to quickly obtain such warrants from a secret court that has ruled in the government’s favor in nearly every single case.
And yet, the Bush administration still issued a presidential order authorizing the NSA to monitor calls involving US citizens on US soil without warrants. Mind you, this is not a violation of FISA, as it has been characterized in many press reports. FISA simply provides a mechanism for maintaining the secrecy of intelligence work without running afoul of the Fourth Amendment. No, this is a direct violation of the Fourth Amendment itself.
I stress this point not to generate outrage (although it certainly should do that as well), but rather to highlight the fact that we’re not talking about just another partisan scuffle here, or a turf battle between branches of government.
What I can’t figure out is why they went this route. Hubris? The imperial presidency run amuck? Lazy reliance on the assumption that no one would find out? Maybe. From everything I’ve read so far, it would have made not a whit of difference to the course of intelligence-gathering had the administration gone through the FISA process, and yet they sidestepped it.
I think there is something else going on here, but I don’t know what, and I can’t quite put my finger on what is giving me that feeling. I think there is still more to this story, and I think the White House doesn’t want it to come out.