Bush's Warrantless Spying

If a criminal case was at stake, the FBI or whichever agency was involved, needed a Title III criminal warrant; and if it was a foreign intelligence case, the FBI needed a FISA warrant. What was the difference between the two? Other than the difference in purpose -- criminal investigation v. foreign intelligence -- the main differences were threefold. First, the amount of proof needed to get a FISA warrant was less. Second, with a FISA warrant, the person surveilled rarely could seek judicial review because he would normally have had no way of finding out that it had even happened. The third difference flowed from the first two: because of the relaxed standard of proof and the unavailability of review, foreign intelligence agents were not allowed to share their information with criminal agents, even if they were in the same agency. That barrier between criminal and foreign intelligence agents was called the "FISA wall."

After the 9/11 attacks, however, as part of its push for the PATRIOT Act, administration representatives, mainly from the Department of Justice (DOJ), proposed numerous changes to the FISA law that that they argued were necessary due to both technological and societal developments since 1978. In particular, they wanted to break down the FISA wall to allow for greater sharing of information in order to avoid the numerous communication snafus that may have prevented discovery of the plans for the 9/11 attacks. Ultimately, the administration received most of its desired changes. Break down the "FISA wall"? You got it. Roving wiretaps? You got it. Administrative subpoenas to libraries? You got it.

And that was just the first round. Since October 2001, the administration has obtained passage of three rounds of additional changes to FISA. All the requested changes have led to considerable public debate about the threat to constitutional protections posed by relaxing the rules for getting electronic surveillance warrants as well as the increase in tools available to law enforcement. Nevertheless, for the most part, Congress has acceded to whatever requests for changes to FISA the Bush administration has made.

At no time during this four-year debate about security and civil liberties, despite well-established congressional procedures for discussions that involve classified material, has the Bush administration advised Congress in any meaningful way that it was in ongoing violation of FISA; nor has it ever formally sought to amend the law to accommodate the sorts of technological advances that it now cites as the very reason for its secret program. In other words, the administration has conducted a prolonged charade during which it has pretended to participate in a democratic process of amending and enacting legislation, while secretly, but monumentally, violating the law that was under consideration.

This charade was not merely for the benefit of the public and congress but also for the benefit of the thousands of administration employees who are charged with enforcing the rule of law. When Bush announced famously on April 20, 2004, "[T]here are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way..." -- the vast majority of people at DOJ most likely believed that to be true. DOJ has an entire website devoted to internal and external propaganda about the administration's commitment to civil liberties. Prominently displayed on the website entitled, The Patriot Act: Preserving Life and Liberty is a smiling photo of Attorney General Alberto Gonzales and the following quote: "We are waging a war?each day in a way that values and protects the civil liberties and the constitutional freedoms that make our Nation so special."