While surfing this morning, I found this blog post adding further thoughts to the NYT article on the Presidents’ authorizing possibly illegal surveillance:
FISA does authorize surveillance without a warrant, but not on US citizens (with the possible exception of citizens speaking from property openly owned by a foreign power; e.g., an embassy.)
FISA also says that the Attorney General can authorize emergency surveillance without a warrant when there is no time to obtain one. But it requires that the Attorney General notify the judge of that authorization immediately, and that he (and yes, the law does say ‘he’) apply for a warrant “as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.”
It also says this:
“In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest. In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof”.
Nothing in the New York Times report suggests that the wiretaps Bush authorized extended only for 72 hours, or that normal warrants were sought in each case within 72 hours after the wiretap began. On the contrary, no one would have needed a special program or presidential order if they had.
It sounds like my earlier observation on the story — that if there’s a need for such tools, pass a law to permit it — may be moot. It sounds like there is already flexibility within the law to go forward with snooping without judicial blessing in the event of an emergency, provided that such a blessing is sought very shortly after monitoring begins.
Yes, this makes me trust the government that much more….