The Osterley Times: Why Didn't Bush Use FISA?

As I mentioned yesterday, there's some sterling work being done by Glenn Greenwald regarding the ongoing dispute surrounding Bush's illegal wiretapping of American citizens on their own soil. He pointed out Digby's great post on the rantings of Republican Senator, Orrin Hatch:

"It would be unconstitutional for the Congress to say, 'You have to go through the FISA court.' We could pass a law that says, 'We want you to go through the FISA court,' and I think the president would probably try to live with that. The problem is, you cannot do what they've been doing to protect us through the current FISA statute."

Digby says: "Interesting new theory. The congress passes laws the country must abide by. Except for the president. For him laws are just polite requests."

And then Glenn took it further. He had someone - who's working with him on his new book - call Hatch's office to ask if Hatch voted for FISA when it was introduced. It turns out he did!

Glenn then posted this.

Hatch thus voted to enact criminal restrictions on the President's eavesdropping activities. Once it turned out that the President was breaking that law, Hatch suddenly claimed that the very law he voted to enact and repeatedly amend was unconstitutional.

This seems to be an accurate summary of the evolution of Sen. Hatch's views of constitutional law:

(1) The Congress has the right to restrict the President's eavesdropping activities, and to make certain eavesdropping activities a criminal offense punishable by up to five years in prison.

(2) Therefore, Hatch votes several times for FISA.

(3) Every President since then complies with the law -- including President Reagan and Bush 41 during the height of the Cold War - and no Administration or member of Congress challenge its constitutionality.

(4) George Bush gets caught violating FISA by engaging in the precise eavesdropping which FISA criminalizes.

(5) Hatch says that the Leader did nothing wrong because the law which the Leader violated -- the same one Hatch voted to enact and to amend repeatedly -- is unconstitutional.

It's hysterically funny to see the levels of hypocrisy that Republicans will stoop to in order to protect the Great Leader. They are simply shameless in the levels they will plumb to in order to protect the idiot savant.

And whilst I was laughing over all of the above, and wondering what excuse the Repugs would next come up with to justify Bush's clearly illegal actions, I got to thinking: Why didn't Bush use FISA?

Leaving aside the bizarre claims made by the Bushites that the authority came from the Authorization to Use Military Force passed by Congress in the immediate aftermath of 9/11, I still come back to: Why didn't he use FISA?

It's hardly an unco-operative body. As Sen Leahy pointed out before the U.S. Senate Judiciary Committee :

Of the approximately 20,000 foreign intelligence warrant applications to these judges over the past 28 years, about a half dozen have been turned down.

Based on those figures it would be hard to argue that FISA warrants are difficult to obtain, so there has to be another reason for attempting to bypass FISA.

Now obviously, as the Bush administration refuses to give any details of the breadth of the programme - other than to admit it bypasses FISA - we are in the realms of conjecture. Although, I think the field can reasonably be narrowed down to two areas.

Loss of executive power and the demands made by FISA legislation.

Cheney is known to loath the limitations set on Presidential power ever since Nixon was impeached.

Indeed, he told NBC's Campbell Brown during an interview: "For 35 years that I've been in town, there's been a constant, steady erosion of the prerogatives and the powers of the President of the United States. And I don't want to be a part of that."

But considering the fact that Bush publicly stated that:

Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order.

We can safely say that their concern isn't the limitations being set on Presidential power, as in making the above statement, Bush was seeking to reassure us that there are limitations on that power and that he accepts those limitations.

Indeed, having made the above statement, he would open himself up to the charge of hypocrisy were he now to attempt to reverse that public assurance.

So we are left with the demands of the FISA legislation. And what does FISA demand that Bush could possibly have contention with?

Well, one of the demands of FISA is that the President respects the fourth amendment of the constitution.

The Fourth Amendment to the Constitution reads as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

It is to this end that FISA asks the person seeking a wiretap provide proof that there is probable cause to believe that—

(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power:

Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and

(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;

The Bushites have recently been attempting to change the requirement of "probable cause" to "reasonable suspicion", which can only mean one thing. The net they are casting is far too wide for their searches to be granted under FISA.

In plain English, they are going on fishing trips; possibly using electronic surveillance equipment that catches key words and phrases and then automatically records the conversation in which certain words and phrases appear.

It's about as illegal as you can get. It literally means they are recording everyone.