New Tactic from President Bush on TSP

Since he cannot go back to warrantless wiretaps without the Republican majority in Congress to shield the administration, President Bush has apparently decided to take a new approach to encroaching upon our civil liberties. Apparently, it's time to update FISA. From the AP, via Yahoo!: "President Bush wants Congress to modernize a law that governs how intelligence agencies monitor the communications of suspected terrorists. 'This law is badly out of date,' Bush said Saturday in his weekly radio address."

President Bush then explained why this law needed updating:

Bush noted that terrorists now use disposable cell phones and the Internet to communicate, recruit operatives, and plan attacks; such tools were not available when FISA passed nearly 30 years ago. He also cited a recently released intelligence estimate that concluded al-Qaida (sic) is using its growing strength in the Middle East to plot attacks on U.S. soil.

This is, of course, a serious issue. However, the President is notoriously silent as to HOW Al Qaeda managed to regain its strength, namely the misguided, poorly planned, underprepared, misrepresented invasion of Iraq, which has drained our resources in a police action. Remember, the Iraqi troops were being trained in 2004 and were almost ready to take over security of their nation. But, instead, 3 years later, instead of fighting the "entity" known as "terror," we are still trying to clean up the mess we made in Iraq. In other words, President Bush's actions made America weaker, and now he wants a revamped law that strips more of our civil liberties (an encroachment into our 4th amendment protections) to "fix" what he jacked up.

Let's see what, exactly is outdated about FISA. The law requires a FISA judge grant the warrant as long as the allegation is not deficient. This is not a probable cause requirement; it's a "are all the spaces filled in and are there no typos" requirement. In other words, as long as the agency requesting the warrant fills it out right, it cannot be denied. In the history of FISA, over 96% (and possibly higher, but I'm not going to do the calculation right now) of the applications have been approved. But that's not all. The law also allows for the intelligence agencies to collect intelligence through warrantless wiretaps even WITHOUT A WARRANT. From the language of the Act:

[W]hen the Attorney General reasonably determines that (1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information and before an order authorizing such surveillance can ... be obtained; he may authorize the emergency employment of electronic surveillance if [a properly authorized] judge ... is informed by the Attorney General or his designee ... and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance (emphasis mine).

In other words, surveillance can be done without a warrant for up to three days, before an application for a warrant which cannot be denied due to lack of probable cause (a 4th amendment requirement) must be asked for. Yet this is insufficient to fight the war on terror that took a backseat when the President sought to fight a war that need not have been fought, at least not when we did. Rubbish.