I'm afraid it's not at all about FISA.
It's been bandied about all over that all Bush had to do was to go to a FISA court, even after the fact, and get authorization within 72 hours.
And FISA has only rejected something like 4 or 5 of some 15,000 requests for such a tap. So why didn't he?
And how could this possibly happen? How could we be so exposed to our privacy being infringed upon?
Well, it's because we aren't. FISA only pertains to foreign nationals, and ONLY foreign nationals.
From WIKI:
Electronic surveillance
Generally, the statute permits electronic surveillance in two scenarios. First, the President may authorize, through the Attorney General, the surveillance without a court order where it is directed at the acquisition of "technical intelligence" or the contents of communications of foreign powers (not including terrorist organizations), there is "no substantial likelihood" of a US citizen being party, and the procedures, among other things, minimize the impact on United States citizens.
More after the flip.
I actually owe this diary to listening to, of all things, Alan Colmes' radio show tonight, where he had the judicial analyst from FOX news, Andrew Napolitano, on his show and was asking him about Bush's revelations over the last few days.
Please keep in mind that this judge is not exactly liberal. He voted for Bush both times, and even said he prayed on the rosary for Bush's re-election..that said...
He also said that as a federal judge, he would have to sit on special duty occasionally, which consisted of being available 24/7 for a week to sign warrants for wiretaps and home searches, etc. He said the process could be conducted within about a half hour, and that a warrant would be required before it be done...no going back for permission after the fact.
He answered, frankly on being asked by Colmes, that yes, of course Bush was breaking the law here.
And a little history, too...as he pointed out, FISA came about precisely because of the 1972 SCOTUS decision not to allow Nixon to wiretap freely, no matter what the reasoning, no matter who he thought he would protect. FISA was created to provide a prompt way of providing for monitoring of foreign nationals regarding activities which could cause our nation harm.
FOREIGN NATIONALS. And explicitly not US citizens.
From the FISA provisions themselves:
(a)
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that--
(A) the electronic surveillance is solely directed at--
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
And what is 'minimization procedures'? That's all about right to privacy:
(h) "Minimization procedures", with respect to electronic surveillance, means--
(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance;
(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.
Indeed, it couldn't be any clearer that the FISA provisions are not to be used against US citizens, and if they ever were, then the information gathered could not be retained or used.
So what precisely does this mean?
Indeed, it is more important than ever to know why Bush did not choose to go to the FISA court. Because it means that the people he was spying on could not be guaranteed not to be US citizens or, in fact, they KNEW that US citizens were involved...precisely the reason this law was crafted to only apply to foreign nationals.
Two legal aliens communicating between two US cities or towns could legally have their communication monitored over this, with the provision that they could be proven to have something to do with a past, current or impending crime. Note also that terrorist organizations are explicitly excluded as foreign powers in this law.
If a US citizen was on the phone call, or even MIGHT be on the phone call, the wiretap would not be approved and any information gathered would not be allowed to be retained.
Now, the Administration is not without means. Any federal judge, especially the ones on 24/7 duty, could approve such a request legally within 30 minutes if it were for a good and legal cause. I'd think that is less time than it would take to hunt down W, and certainly there are many more federal judges available to the task than US Presidents.
If he himself wanted the tap, he could not simply authorize it without approval. Even within the confines of FISA, he would not be able to approve the wiretap, EACH TIME, without getting WRITTEN consent from the Attorney General..which I bet cannot be provided.
This means more than ever that Bush did not ask, not because he didn't want to waste time, but because he knew such requests would not be approved, not by any federal court nor by the FISA rules.
By the way, he said that the wiretapping, both by Bush for directing it and by each person or persons carrying it out carry a jail sentence of five years per wiretap. So this could be nasty, nasty indeed...he admitted to more than thirty of these, didn't he?