All You Need To Know About The Illegal Wire Taps

Let me get two things out of the way right now...first, George W. Bush appears to have broken the law by authorizing an NSA program which permitted listening in on conversations of American citizens without first obtaining a warrant; second, someone else has clearly broken the law by leaking this information to the press.  I will await the outrage over this leak by all of those liberals who are outraged over the leaking of Valerie Plame's name.  I think I will be waiting quite a while.

Now that we have established the basic facts of this case, lets look at the details...because sure as ever the devil is in the details.  As all good conspiracy theorists will explain to you...two events that happen somewhat near to each other are clearly related.  Therefore the entire reason we are finding out today about this program is because the Senate was debating making the Patriot Act permanent or extending the act with modifications.  If you buy into this world view, there are many other coincidences that must torment you constantly.  Take for example the New York Transit Strike happening around the holidays...just when Jewish and Christian (hell even the pagans) spend tons of money boosting the economy.  Who would benefit from a weaker economy...RIGHT...Hillary Clinton is clearly behind the strike!

Now that we have established the outer reaches of my snarkiness, lets consider what the hell Bush must have been thinking to approve a program which is clearly illegal and doesn't seem to provide anything that he couldn't have had anyway.  To do that we need to describe the legal process for obtaining a wiretap versus what the New York Times (and now others) have described as the process Bush approved.

There is a top secret court...not really top secret, it is more like the way the Maxwell Smart offices were always top secret.  You remember those right?  Maxwell Smart gets in a taxi and asks the driver to take him to CONTROL's Top Secret Headquarters.  The driver invariably says "Yeah...I know where that is."  At any rate to listen to some of the news coverage you might think this court was.  I heard the court described as a shadowy secret court which met in a secret area of the Justice Department secretly.  I began to imagine a hall way like what Maxwell Smart entered on his way in to CONTROL.

Actually if you want to know about this shadowy secret organization it's not hard...it is however well protected but by nothing more deadly than terminal boredom.  That is you can read 50 U.S.C. § 1801et. seq. and, if you can remain alert, learn all that you could ever wish to know about the secret court.  Hell they even keep government statistics on the Court's wiretap approval rate (More about that later).  Sadly the number of people who have actually read those statutes increased by at least one this past week as I dragged myself through the dull process of understanding the workings of this super-secret operation.  Now since I have suffered, I intend to pass this suffering on to you!

The Court was established by FISA...the acronym stands for Foreign Intelligence Surveillance Act which created FISC.  Clearly creativity is at a premium in legal circles since that acronym stands for Foreign Intelligence Surveillance Court.  This court is empowered to hear top secret evidence of probable cause for the approval of wiretaps and eavesdropping by NSA and other shadowy secret organizations.  The government has a success rate with this court, a success rate which might prompt a snarky person to quip that the court was manned by marsupials from down under.  I believe the stat that was quoted to me was that the court had rejected 5 government requests in the court's history.  That is not a typo...that is the number five.  Of course if the court had heard only 50 cases that might be understandable but in reality the court has heard thousands of requests since 9/11...and approved every one.

Apparently either the Bush administration didn't like their odds...or they were wanting to do something that they were pretty certain was going to increase that number from 5 to a higher number.  When Bush authorized this program, he basically by-passed the entire legal process created by the constitution of the United States.  You remember the constitution, don't you?  I have heard many impassioned pleas by the strict constructionists about the way liberals ignore the constitution when it suits them!  I think I can sum up the conservatives' latest constitutional arguments...the constitution is incredibly necessary and must be strictly construed when we want to prevent abortion but can be such an unnecessary burden when the Government wants to listen in on phone calls.  I'm having some trouble reconciling these views...

Now I am not at all comfortable with those 'legal scholars' capable of finding all kinds of 'rights' within the language of the constitution but I'm pretty sure that even Thomas Jefferson had not envisioned e-mail when the document was drafted.  At some point we have to recognize that someone has to decide if our phone calls, e-mails and letters are a personal item or a joint venture with the federal government, or at least those parts of the federal government who are empowered to read them.  If the U.S. Constitution is the document they must use to do it, then a judge is the one who has to decide how communication media not invented when the document was drafted, are protected by that document.

Based upon that rationale the system which exists requires that the government bring evidence to this court, which can be convened quickly (no dockets slowing things down), and tries to show probable cause for the court to approve a wiretap.  This burden is easily met when the party is a 'foreign power' or an 'agent of a foreign power' but requires evidence that the party is 'about to engage in criminal conduct' if they are a U.S. citizen.

Given the absurd ease with which the court has approved wiretaps in the past, care to guess what probably was the sticking point for the NSA?  No really...    OK I'll help.  What is likely is that President Bush approved a 'program' of listening and eavesdropping on U.S. citizens conversations when there was no evidence that those citizens were about to engage in criminal conduct.  Not to put too fine a point on it but...that was a really stupid decision.

However, a very strange phenomenon has been occurring.  Look here...Bush's approval rate has gone up again!  You know every time liberal lefty loudmouthed Democrats attack Bush by claiming that he is mean to terrorists who want to kill us, his approval rate goes up!  I'm sure they can't understand why that is.  Based upon this unique phenomenon, and based upon my aforementioned thinking on conspiracy theories, I will hereafter assume all future leaks of this sort are being planted by Karl Rove in an effort to boost Bush's popularity.

Comments

[lennilenape]

You shouldn't have to wait long. It was clearly a righty who leaked it. Arn't you guys in touch with one another?

[Mahatma]

Right! Karl Rove is clearly working on George W. Bush's re-election campaign...oh wait!

[Terri G]

The question is why do we really care what Bush thinks about his approval ratings?? It's not like he can run for a third term or anything. I suppose he cares because he wants to make the Republican party, as a whole, look better than the Democrats. (Not that that is hard to do...)
I still don't understand exactly what is going on but the sad thing is that I'm not sure I really care.

[Mark]

Mahatma,
while your argument is well constructed, it is incorrect. Bush authorizing the wiretaps is not illegal. Roving wiretaps have been used since Kennedy, and they have been shown to be legal in most cases. Bush is using the authority given him by the inherent powers in the constitution, as well as the inherent abilties given by Congress use of force proclamation.

To see you fall prey to the propaganda of the left is truly appalling. Look a little farther and you will see the truth, as you usually do.

[Mark]

Mahatma,

check out my post in regards to the legality of Bush's "illegal" wiretapping. It is nothing of the sort.

[Carol]

I once read or heard about a doctor who came upon a car accident in which a man was seriously injured. The doctor performed a crude tracheotomy on the scene, saving the man’s life but leaving an ugly scar. The man sued the doctor.

The democrats’ snit over this spying case reminds me of that ungrateful man. We’ll never know how many lives were potentially saved as a result of such spying. The real shame here lies with democrats who see this as an opportunity to stick it to Bush and who are, as usual, unconcerned with the potentially tragic consequences of their actions.

We live in a dangerous world where groups of well-organized, well-funded people want to kill as many of us as they can. That’s the reality and it’s about time we started acting as if we understood that.

I realize that we need to protect the civil liberties of the innocent. Or I should say, we need to protect those who by all appearances are innocent, since we can never really be sure. So the question should be, has the Bush administration targeted only people who could reasonably be suspected of having some connection to terrorism? As long as they meet that test, I’m satisfied.

[Mahatma]

Mark:

I performed my own legal research into the wiretaps. They are illegal as the law is currently written and construed. I believe there is a valid case that could be made for the law being an unconstitutional limitation upon the President's authority.

In essense, although the best and most common interpretation of the law creating the FISA courts would unequivocably be interpreted as requiring approval (even post hoc) for the wiretaps, that law itself may be an unconstitutional over-reaching by Congress.

Frankly Carol's argument is the most compelling to me, proving once and for all that something can be technically illegal but perfectly moral. Like the entire Iraq war for example...technically illegal (or arguably a case for it being illegal can be made) but morally the right thing to do.

At the risk of sounding like John Kerry, let me plead that I was for the wiretaps right after I was against them.

Mahatma