One of Bush's mottos:
If at first you don't succeed, try, try, again...
I imagine if DailyKos existed back then (I have no idea), this has been diaried before, but perhaps it might be useful to bring it up again...
This diary on the recommended list about Bush's blatant lies regarding wiretapping and FISA jogged my memory about an article I read way back in August of 2002 that is eerily relevant today. I didn't remember where I read it, but I dug out the headline I'd bookmarked from MSNBC on 8/23/2002 of "Secret Federal Court Rebuffs Ashcroft". The original link was http://www.msnbc.com/news/798009.asp?cp1=1, but that no longer works (and I couldn't find a working version of it in web archives either). But a little more digging turned up the fact that it was in the Washington Post. I found a still-intact copy of this article here: Secret Court Rebuffs Ashcroft. Justice Dept. Chided On Misinformation.
Take the jump to go back in time and see how we got where we are today...
(All emphasis and bolding added to the excerpts by me.)
The story starts out:
The secretive federal court that approves spying on terror suspects in the United States has refused to give the Justice Department broad new powers, saying the government had misused the law and misled the court dozens of times, according to an extraordinary legal ruling released yesterday.
A May 17 opinion by the court that oversees the Foreign Intelligence Surveillance Act (FISA) alleges that Justice Department and FBI officials supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh.
Authorities also improperly shared intelligence information with agents and prosecutors handling criminal cases in New York on at least four occasions, the judges said.
It appears the judges were pretty pissed, enough to warrant their extraordinary actions:
The documents released yesterday also provide a rare glimpse into the workings of the almost entirely secret FISA court, composed of a rotating panel of federal judges from around the United States and, until yesterday, had never jointly approved the release of one of its opinions. Ironically, the Justice Department itself had opposed the release.
Stewart Baker, former general counsel of the National Security Agency, called the opinion a "a public rebuke. ...
And yes, back then there were Senators willing to help change the laws to help make things more convenient:
Despite its rebuke, the court left the door open for a possible solution, noting that its decision was based on the existing FISA statute and that lawmakers were free to update the law if they wished.
Members of the Senate Judiciary Committee have indicated their willingness to enact such reforms but have complained about resistance from Ashcroft. Chairman Patrick J. Leahy (D-Vt.) said yesterday's release was a "ray of sunshine" compared to a "lack of cooperation" from the Bush administration.
But, of course, BushCo would have none of that, because that would mean that they are still subject to the law. (Instead they chose to bypass the law completely.)
So we get to the probable motive for Bush's end run around the constitution:
The opinion itself -- and the court's unprecedented decision to release it -- suggest that relations between the court and officials at the Justice Department and the FBI have frayed badly.
And here we see the how the information is probably being used:
Referring to "the troubling number of inaccurate FBI affidavits in so many FISA applications," the court said in its opinion: "In virtually every instance, the government's misstatements and omissions in FISA applications and violations of the Court's orders involved information sharing and unauthorized disseminations to criminal investigators and prosecutors."
The judges were also clearly perturbed at a lack of answers about the problems from the Justice Department, which is still conducting an internal investigation into the lapses.
"How these misrepresentations occurred remains unexplained to the court," the opinion said.
Unexplained, probably to this day.
So, to summarize: While Ashcroft and the Justice Dept. were being publically rebuked for abusing the system, Bush was bypassing the law completely and ignoring the judges by having the NSA do his dirty work instead!
Update [2005-12-20 11:20:30 by shock]: (Wow. I go to bed and wake up on the rec'd list. Go to a program at my son's school and get home and am still there! Thanks.) In a comment below Drag0n points out that this was overturned on appeal on November 18, 2002. (Thanks to Halcyon for providing a NY Times link to the story.) This may mean that Bush had other motives for bypassing the FISA courts (as drag0n speculates here), or it may mean that he started the activities during the interim between May and November of 2002 and was then just too audacious or arrogant to cancel them when the ruling came in November!
Update [2005-12-20 16:52:37 by shock]: It may be too late, but I just saw this comment thread that points out that many of the violations leading to the rebuff happened during the Clinton administration prior to a 2000 report. I agree that this is an important point (as is TereasInPA's response), which is why I'm posting this update, but I think it does little to change two of the main emphases of this diary, which isn't just about the violations that led to the friction between the DoJ and the judges, but also about two things I see as more relevant to today: (1) the fact that this friction (which, remember, was still present in 2002 with the Bush DoJ, otherwise why the extraordinary press release by the judges?) provides a motive for Bush's NSA activities, and (2) Congress was willing to work with him back then to make appropriate fixes to the procedure, yet he chose to take an extra-legal route intead.