Extraordinary Roundabout

So, the administration is essentially saying that they had no choice but to act quickly to protect lives and avoid harmful terrorist activity in their going around established law and barging ahead with Presidentially approved (though not court approved) wire tapping of US citizens. But Josh Marshall at Talking Points Memo pokes a pin in this trial balloon thusly:

As I noted below, one of the alleged rationales for sidestepping the law and the FISA [Foreign Intelligence Surveillance Act] Court with these NSA wiretaps is the need for timeliness.

The problem with this argument is that the FISA Court is specifically designed to get warrants okayed really quickly and it almost never rejects a government application (I'm still trying to get confirmation on the exact stats).

Apparently, though, this rationale is even weaker than I thought.

It turns out that FISA specifically empowers the Attorney General or his designee to start wiretapping on an emergency basis even without a warrant so long as a retroactive application is made for one "as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance." (see specific citation, here).

Unless I'm missing something, that really puts the dagger in the heart of any rationale based on timeliness or exigent circumstances.

And Crooks and Liars notes this letter from John Ashcroft to the director of the Administrative Office of the US Courts:

During calendar year 2002, 1228 applications were made to the Foreign Intelligence Surveillance Court for electronic surveillance and physical search. The Court initially approved 1226 applications in 2002. Two applications were "approved as modified," and the United States appealed these applications to the Foreign Intelligence Surveillance Court of Review, as applications having been denied in part. On November 18, 2002, the Court of Review issued a judgment that "ordered and adjudged that the motions for review be granted, the challenged portions of the orders on review be reversed, the Foreign Intelligence Surveillance Court's Rule 11 be vacated, and the cases be remanded with instructions to grant the United States' applications as submitted..." Accordingly, all 1228 applications presented to the Foreign Intelligene Surveillance Court in 2002 were approved.

So why the need for this subterfuge? There's gonna be some serious 'splainin' going on, but it'll take more than Condi's lame attempt on Meet The Press this morning (via Think Progress):

RUSSERT: What Democrats and Republicans in Congress are asking, what is the authority that you keep citing? What law? What statute? Where in the Constitution does it say that the President can eavesdrop, wiretap American citizens without a court order?

RICE: Tim, the President has authorities under FISA which we are using and using actively. He also has authorities that derive from his role as Commander in Chief and his need to protect the country. He has acted within his constitutional authority and within statutory authority. Now, I am not a lawyer and I am quite certain that the Attorney General will address a lot of these questions.

Rice said several times this morning that she’s “not a lawyer.” That is irrelevant. Rice was the National Security Advisor when President Bush authorized the NSA program, and said today that she was aware of Bush’s decision at the time. Shouldn’t she know why it was legal?

Or is it as simple as this explanation, from today's WaPo editorial:

As with its infamous torture memorandum, the administration appears to have taken the position that the president is entitled to ignore a clearly worded criminal law when it proves inconvenient in the war on terrorism. That argument is not as outlandish in the case of FISA as it is with respect to the torture laws, since administrations of both parties have always insisted on the executive's inherent power to conduct national security surveillance. Still, FISA has been the law of the land for 2 1/2 decades. To disrupt it so fundamentally, in total secret and without seeking legislative authorization, shows a profound disregard for Congress and the laws it passes.