Can You Hear Me Now?

I have been trying to understand the wiretap issue a little better this week. While I haven't had much time to watch the news, some of the best perspectives came from PBS' Newshour with Jim Lehrer (simply the best news show to understand issues) and Nightline on ABC anchored by Martin Bashir. The guests on these two shows included an ex-acting director general of the CIA, a legal expert at Georgetown and many other smart professionals who didn't have a political point to make.

Essentially, I think the overall coverage of this story has tended to mix up two seperate but related questions. One, was the wiretapping authorized by President Bush legal? Two, was it necessary?

First the legal angle. It certainly appears from all I have heard that the President's order might have been illegal ... actually, more likely it was a federal crime. The FISA act is supposed to explicitly talk about terrorism not being a factor in changing the rules, and requires the administration to get a warrant, at least retroactively. Certainly, the majority of legal opinion seems to weigh in on the side of Bush having broken the law.

Which leads us to ask, was the subversion of the FISA court necessary? Critics of the administration have argued that the FISA act allows, in the event of an emergency, up to 72 hours (15 days during a war) for the administration to go back and ask for a warrant for a search (after all, that's what a wiretap essentially is) that was already conducted. So why seek to step around the process?

The problem, as several ex-intel officials pointed out, is on two grounds. One, the requirement of probable cause. Intelligence since 9/11 has been a bit of a fishing expedition. They get the cell phone of a suspected terrorist, find 200 phone numbers. Some of these might be people with terror links, but the list might include the guy's barber, for all you know. Do they have probable cause to get a warrant? Tough sell! Should they be following up on every lead as aggressively as possible? Absolutely!

Even when there is probable cause, these former intel officers point out, it's inefficient to have to get a warrant to tap a phone after the fact. That's because FISA was written in the day of landline phones, when suspects would use the same phone repeatedly. In today's quick-turnover cellphone age, terrorists quickly keep swapping numbers weekly, if not more often, and the effort involved in getting a warrant is worthless.

Clearly, it would have been better for the administration to have confronted this problem head on, including as a provision of the Patriot Act. In the days after 9/11, President Bush have incredible leverage to have pushed such legislation through. Rather, he made an unfortunate choice of trying to do things behind the curtain, which has come back to hurt him.

In a later post, I'll explore the possible fallout of this scandal on the Bush Presidency, and the 2006 and 2008 elections. Until then, I'll be following this story very closely, hoping to pick up some other perspective on the issues involved.