If that’s not an acknowledgement that the administration ignored FISA, I’m not sure what is. (Incidentally, the Constitution was written in the 1780’s — but hey, it’s a different world now…)

You wrote: “the fact is that the law requires getting warrants from FISA.”

You’ve omitted an important qualifier — FOR WHAT does the law require getting warrants from FISA.

Can you cite any clear and unequivocal evidence that the kind of surveillance for which FISA requires warrants is the same as the kind of surveillance being performed under the NSA program in question?

I strongly suspect that you cannot — if you can, then we’ve got another example of a President staring into the camera and lying point blank to the American people, and about something significant. If you can indeed present evidence of that, I might be inclined to support calls for impeachment hearings.

The FISA law is very clear, and it has never been overturned or modified in judicial review.

The followup court decisions about what the law MEANS are also in black and white. FISA does not trump the President’s constitutional authority.

See Powerline’s numerous entries on this point.

The Bush administration can claim whatever it wants, but the fact is that the law does require warrants to be obtained. That’s what the law says – it’s there in black and white. The law was enacted precisely to prevent the executive branch from conducting electronic surveillance without warrants, which (by Bush’s admission) is what they did.

I’m not sure I follow you in your second paragraph. You’re suggesting that the NSA starts eavesdropping on someone, finds something incriminating, and then doesn’t have enough time within 72 hours of first listening to get a warrant? Why were they listening in the first place?

Your third paragraph conflates two NSA programs. It has been reported that there is an NSA program which eavesdrops on specific individuals, as well as a second program which uses data mining. Your implication is that there were no warrantless wiretaps of specific, targeted individuals. If this is true, then I have no problem with it: data mining seems to me to be perfectly legitimate, similar to a camera at an intersection aimed to catch people running red lights. However, both Bush’s admission and the reporting thus far indicate that the government did, in fact, wiretap specific, targeted individuals without warrants.

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However, what I or others think is unimportant: the fact is that the law requires getting warrants from FISA. If there are people better qualified than FISA judges to issue warrants, then let’s change the law. However, as long as the law is on the books, it ought to be followed.

Correct, I meant previous administrations, not the Bush administration.

Like pretty much everyone on your side of this issue, you begin with the assumption that FISA warrants were required for the surveillance in question (even though we don’t know what it was), and go from there to make statements about how the Bush Administration acted illegally by not getting them. The Administration continues to maintain that warrants were not required in the cases where they didn’t seek them. Clearly they think they have a valid legal argument to make, and the pronouncements of any number of opponents don’t change that fact; it’ll come down to a ruling on the legality, not to a shamefaced admission on the part of the Administration that yes, you were right all along, they really were breaking the law with full intent.

My understanding of the now-infamous 72-hour rule for FISA warrants is (as articulated by the AG, AG) that in order to go forward with surveillance during that 72-hour window, all evidence necessary to establish probable cause must already be in hand for the AG to OK the warrantless surveillance. You can’t use information learned during the 72-hour period to get the warrant. (It almost seems like a “long weekend” provision, where you know you could get a warrant if only you could get to the judge, so you have a responsible person witness that you could get the warrant and then you’re committed to actually going and getting it before that 72-hour deadline.)

So… as long as we’re all throwing out hypotheticals here, mine, which squares with the Administration’s claims that in every case where a FISA warrant was required, they got one, is here: Using Article II-plus-AUMF authority, Bush authorized the data-mining/packet-sniffing phase against suspected terrorists and those with whom they communicated, and then, when “trigger” words or phrases occurred, the Administration had probable cause (first, that one side of the convo’ was known or suspected al Qaeda; second, the presence of said trigger(s)) and sought FISA warrants.

What is it about FISA judges that makes you believe they are better able to provide oversight over NSA programs (even those that, as far as we know, are not statutorily related to the FISA court) than, say, the NSA inspector general (confirmed by the Senate just like a FISA judge) and the head of the NSA (ditto) and the chairs and ranking minority members of the House and Senate Intelligence Committees?

All of these people were directly involved in the oversight of this program — and they are hardly partisan hacks. This program wasn’t a handful of guys acting on orders secretly passed to them by Karl Rove.

Mark-

The most infamous example is when Attorney General Robert F. Kennedy authorized the FBI to tap the phones of the Rev. Dr. Martin Luther King, Jr. The practice was far more common than most people were comfortable with throughout the Kennedy and Johnson administrations, which led to the FISA law in the first place (just as soon as that power had passed to the Republican Party).

More recently, photocopies of the FBI files of prominent Republicans were found lying around in an office in the Clinton White House.

I assume Peter didn’t mean to imply that it had happened before in the Bush administration.