I've been waiting to weigh in on this for some time. I absolutely, positively hate (and I mean HATE) to do this, but I have to agree with COL. Bush poked the pooch on this one guys. I'm a former electronic intel guy, so I have a bit of first hand experience with this topic (disclosure statement, so you know where I'm coming from).
I too have read through FISA, Executive Order 12333, and USSID 18 extensively, to make sure that I wasn't off track here.
drmiler - neither of your defending arguments holds weight, and here is why:
1 - Only Congress can declare war, and the first argument you show is ONLY valid if we are in a declared state of war. Congress authorized the President to use military force, but the U.S. has not declared war, and therefore this paragraph has no bearing on this situation.
2 - The second paragraph is absolutely true. Intel agencies can intercept for up to 72 hours without a court order. Here's the problem: if they don't get a court order, not only can they not continue to intercept, they cannot retain, process, analyze, or report on anything they captured during that 72 hour period, because the intercept was illegal. The 72 hour "grace period" was designed to allow intel agencies to begin the intercept while going to the FIS Court. If the court ruled that no warrant would be given, then everything captured up to that point would have to be destroyed (similar to what happened with the info on Atta destroyed by our Able Danger team - they were doing the right thing by the way). If you don't get the warrant, you still cannot keep the intercept that you already caught, even if it is for less than 72 hours.
The FIS Court, and the 72 hour grace period were specifically designed to allow intel agencies to do exactly the type of collection that the President has "authorized" here. Unfortunately, the only legal way to do it is to follow the established procedures. I would have a lot more understanding and sympathy for the counter-argument if there were no procedures in place to allow such intercept, but there is. There really was no reason for this program, and this type of Executive Branch ordered intercept is exactly what FISA was designed to prevent.
I really wish this wasn't the case, because I support the President in the war on terrorism, and in our efforts in Iraq. I spent a year in Afghanistan, as well as some time in Iraq supporting our troops over there, because I do believe in this mission. But, I'm not a blind follower, and this should have been done the right way. I'm frustrated too, because none of this was necessary, and it all could have been done totally legit. Not sure why the administration chose to shortcut the system, but I reall believe they have here. I'm glad we are getting the good poop on these bad guys, but there is a right way to do it, and we aren't doing it the right way currently.
Sorry guys, please don't lambast me here. Like I said, I do support what we are doing, but we can't excuse illegal actions out of hand - especially when they totally were not necessary.
