In truth, it’s easy to get a warrant allowing the FBI or NSA to wiretap someone who may have a connection to a suspected terrorist. Under FISA (The Foreign Intelligence Surveillance Act), special courts were created that make it much easier for the Government to obtain a warrant. The Government can obtain a “sneak and peak” warrant from these courts without the need to present any evidence whatsoever:
Secret searches can now be authorized by a secret court without public knowledge or Department of Justice accountability, so long as the government can allege there is any foreign intelligence basis for the search.
. . . In 1978 the Foreign Intelligence Surveillance Act created an exception to the Fourth Amendment’s “probable cause requirement” for physical searches, wiretaps, and subpoenas of business records. FISA created a secret court that granted search warrants so long as a pleading before a closed court asserted that the “primary purpose” of the search or wire tap was to gather foreign intelligence. The warrant needn’t be based on a suspicion of criminal behavior. But the target had to be “linked to foreign espionage.” In theory, American citizens were safe unless they were suspected “agents of a foreign power.” A good indicator of the objectivity of the FISA court: It rejected only five of the 14,000 warrant applications it received before 2001, although it recently became clear that many of those warrants were based on false allegations. The FISA court is not supposed to second-guess the government. These are not adversarial proceedings. Nor does the FISA court maintain ongoing oversight over the surveillance. Patriot amends FISA to allow searches when “a significant purpose” is intelligence-gathering. Not “primary,” but significant. Now you can be subject to secret searches authorized by a secret court so long as there is any foreign intelligence component (and increasingly, drug-related offenses are deemed to have a terrorist component). Moreover, the party to be searched need not be connected to foreign espionage anymore. It’s enough that the government may merely learn something about a terror investigation. Section 207 of the act lengthens the durations of FISA warrants to as long as 120 days in some cases. Finally, under the pre-Patriot FISA and Title III, fruits of FISA search warrants could be used only for information-gathering, not for prosecution. But now intelligence information obtained using FISA’s lower standards for probable cause can be passed along for prosecution purposes.
Short story: All the Government needs for a wiretap or other secret search is a plausible excuse that the Government may learn something useful with respect to terrorists. That’s all. The type of hurdle you can jump over just by claiming someone once traveled to the Middle East or has an Islamic sounding name. It’s a ridiculously low standard. And remember, this is a secret court whose records are classified and sealed from public view.
So why did Bush order secret wiretaps without getting these easy as pie to obtain warrants? It’s not like the FISA courts were turning down government requests for warrants at an alarming rate after all. In fact, since their inception, they’ve only denied granting the Government the warrants it requested FOUR TIMES in 25 years.
Well, David Sirota, in his blog entry at The Huffington Post tells us why Bush ordered these illegal wiretaps without any judicial oversight:
The answer is obvious, though as yet largely unstated in the mainstream media: because the President was likely ordering surveillance operations that were so outrageous, so unrelated to the War on Terror, and, to put it in Constitutional terms, so “unreasonable” that even a FISA court would not have granted them.
This is no conspiracy theory – all the signs point right to this conclusion. In fact, it would be a conspiracy theory to say otherwise, because it would be ignoring the cold, hard facts that we already know.
Two years ago, the New York Times reported that the administration is using the FBI to “collect extensive information on the tactics, training and organization of antiwar demonstrators.” Then, just a few months ago, the Times reported that the FBI “has collected at least 3,500 pages of internal documents in the last several years on a handful of civil rights and antiwar protest groups.” And just this past week, NBC News obtained a 400-page Pentagon document outlining the Bush administration’s surveillance of anti-war peace groups. The report noted that the administration had monitored 1,500 different events (aka. anti-war protests) in just a 10-month period.
These are exactly the kind of surveillance operations even a government-tilted FISA court would reject, and it raises yet more questions: Are these anti-war peace groups the targets of Bush’s warrantless, illegal surveillance operations? Who else has the President been targeting? Has it been his partisan political enemies a la Richard Nixon? Or has he been invading the privacy of unsuspecting citizens in broad sweeps with no probable cause at all?
Have you attended an antiwar demonstration in the last 2 years? Have you written letters to the President or your Congressional representatives denouncing the war or the Bush administration? Do you belong to any groups that seek the withdrawal of American troops from Iraq? Are you a member of the Democratic party, Moveon.org, the ACLU or any other progressive organization? Have you ever posted anything at a liberal blog?
If you answered yes to any of the above, you may be one of the American citizens targeted by these unlawful searches, whether your phone or internet connection has been tapped, or other private records (medical? financial?) searched. You fit the profile of a person for whom a FISA court would not grant the Government a warrant, but one whom Bush and Company might very well like to tabs on.
So, when you hear the bullpuckey talking points from your right wing friends about how Bush was only trying to protect the country from terrorists, be sure and tell them: “Yes. Terrorists like me.”