Surveillance and Warrants
posted by Will
Many are asking why the administration didn't simply get warrants, including Colin Powell (link to Washington Post). A few moments' reflection leads to a conclusion that no one, as far as I know, has yet drawn:
(Keep in mind that this is all speculation, of course.)
The administration did not seek warrants for its domestic surveillance operations because it is simply impossible to seek enough warrants to cover the numbers of people who were/are subject to eavesdropping. It isn't a question of secrecy or the "inherent" authority of the President. It is much, much simpler. They were spying on so many people that they could not put together cases for warrants for everyone under surveillance. They cast such a wide net, the NSA likely didn't even know who they were listening in on. They couldn't go to the FISA court and say, "we need 1.5 million warrants to listen in on this major artery of phone traffic", and they couldn't get a warrant to read potentially every email in the world that contained certain keywords. Suspicion of being involved in terrorist activity, what the FISA court is supposed to determine, became peripheral. The FISA court wouldn't know what to do with a request as broad as that, and they would deny it (because it is overreaching). Or, perhaps there are procedures for warrants as broad as that, but the administration decided it was too much of a political risk to ask for permission. So, they kept it secret, and kept it extralegal. The reason for failing to get warrants isn't arrogance--it is scope. (Of course, the scope of the surveillance is itself indicative of arrogance...)
This, it seems to me, is the only explanation. It is the only reason they would bypass the FISA court and tell Congress, essentially, nothing about the plan at all.
(Keep in mind that this is all speculation, of course.)
The administration did not seek warrants for its domestic surveillance operations because it is simply impossible to seek enough warrants to cover the numbers of people who were/are subject to eavesdropping. It isn't a question of secrecy or the "inherent" authority of the President. It is much, much simpler. They were spying on so many people that they could not put together cases for warrants for everyone under surveillance. They cast such a wide net, the NSA likely didn't even know who they were listening in on. They couldn't go to the FISA court and say, "we need 1.5 million warrants to listen in on this major artery of phone traffic", and they couldn't get a warrant to read potentially every email in the world that contained certain keywords. Suspicion of being involved in terrorist activity, what the FISA court is supposed to determine, became peripheral. The FISA court wouldn't know what to do with a request as broad as that, and they would deny it (because it is overreaching). Or, perhaps there are procedures for warrants as broad as that, but the administration decided it was too much of a political risk to ask for permission. So, they kept it secret, and kept it extralegal. The reason for failing to get warrants isn't arrogance--it is scope. (Of course, the scope of the surveillance is itself indicative of arrogance...)
This, it seems to me, is the only explanation. It is the only reason they would bypass the FISA court and tell Congress, essentially, nothing about the plan at all.
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