Understanding the Wiretapping Scandal (in One Easy Paragraph)

The Foreign Intelligence Surveillance Act (FISA) Court was established after Watergate to prevent the Executive Branch from conducting wiretaps of Americans without first getting the approval of a second branch of government. The theory behind FISA was that the Executive Branch, consistent with both common sense at the unambiguous prescription of the Fourth Amendment, should always have a warrant for a wiretap--one backed by a showing of probable cause--before engaging in such a constitutionally-proscribed activity. Probable cause is the lowest standard of proof in the entirety of the criminal law, and roughly equates to the following: "sufficient evidence to cause a reasonable person to believe that a crime may have been committed or is being committed." [Emphasis supplied]. The Executive Branch can only get a warrant, in the United States, when it has probable cause. By definition, when the Executive Branch does not have probable cause for a warrant, it means that there is "insufficient evidence to cause a reasonable person to believe that a crime may have been committed or is being committed." In other words, by definition, where probable cause does not exist, no reasonable person could believe that a criminal act had occurred or was presently occurring. The Bush Administration circumvented FISA generally, and the FISA Court specifically--a court which has granted more than 99% of all the warrant applications it's ever received--because the Administration wanted to wiretap Americans under circumstances in which no reasonable person could believe that the targeted American was engaged in criminal conduct of any kind. In any instance in which the Administration had probable cause to believe to the contrary, it could have, of course, gone to the FISA Court either prospectively (before the tap) or retroactively (within 72 hours, or an increased period of time during a declared war). Thus there is no explanation whatsoever for circumventing FISA except a) to keep secret the names of the individuals being spied upon, even from individuals in the government (the FISA judges) sworn to uphold the secrecy of those names, and b) to spy on Americans, on American soil, under circumstances in which no reasonable person could or would believe doing so necessary. Therefore, by definition, the secret NSA wire-tapping program could not have kept Americans safe, as it did no more than randomly and haphazardly wiretap Americans the Administration unreasonably believed dangerous. Nor could any reasonable person, especially an attorney (cf. the Attorney General) have believed the program legal, as no reasonable person would believe the Constitution's clear proscription against unreasonable searches and seizures to allow for searches which are unreasonable by definition. This is why Attorney General John Ashcroft refused to endorse the program while he was Attorney General, why a more compliant Attorney General (Bush ally Gonzales) was nominated to replace him, and why, moreover, we have just learned from the F.B.I. that--to the surprise of no one anywhere in the legal field--the NSA program was entirely ineffectual at detecting terrorist activity, and indeed diverted valuable government resources from investigations which could have actually provided some real protection to Americans. Indeed, if America is again struck by terrorists there will be many who say that the NSA's illegal wire-tapping scheme distracted the F.B.I. and other intelligence agencies from competently performing their constitutionally-protected duties leading up to the attack. Those who endorse this unconstitutional program have no faith or belief in the commonsensical approach that the Founders knew, more than two hundred years ago, would serve the nation best: that is, the simple (even obvious) premise that you don't protect Americans by policing individuals and situations which no reasonable human being could or would consider dangerous, and that, moreover, the tyranny of a dictator is protected against only through a system of institutional checks and balances in which no single Branch of the Federal Government may unilaterally decide to violate the U.S. Constitution. That the Bush Administration has absolutely no standing or basis to violate this fundamental American principle is proven by the fact that the only people to defend the NSA's wire-tapping program thus far are either attorneys who are employed at the pleasure of the President, or else political activists concerned that this scandal--which is a literal outgrowth of the Watergate scandal, but also exponentially more egregious than that precursor--could and likely will lead to the impeachment of this President, should the Democrats regain the U.S. House in November of this year.

That's all you need to know. Seriously. All the rest is bullshit, politics, legalese, or all of the above.

We don't have courts because we like black robes and funny wigs, people. Courts are not academic exercises. We have them because the idea of having them makes sense, and the idea of not having them is repugnant--even horrifying--to our fundamental sense of liberty as Americans.