In a world of legal scholars and brilliant thinkers, I cannot believe that I'm amongst the first to observe this. But let me give it a go anyways.
From Power Line: Hayden Delivers Impassioned Defense of NSA
QUESTION: General Hayden, the FISA law says that the NSA can do intercepts as long as you go to the court within 72 hours to get a warrant.Two paths? This one should stand out like a sore thumb.
I understood you to say that you are aggressively using FISA but selectively doing so. Why are you not able to go to FISA as the law requires in all cases? And if the law is outdated, why haven't you asked Congress to update it? [Ed: Note how the journalists immediately encapsulate the Democrats' critique of the NSA program in their questions.]
GEN. HAYDEN: Lots of questions contained there. Let me try them one at a time. First of all, I need to get a statement of fact out here, all right? NSA cannot -- under the FISA statute, NSA cannot put someone on coverage and go ahead and play for 72 hours while it gets a note saying it was okay. All right? The attorney general is the one who approves emergency FISA coverage, and the attorney general's standard for approving FISA coverage is a body of evidence equal to that which he would present to the court. So it's not like you can throw it on for 72 hours.
In the instances where this program applies, FISA does not give us the operational effect that the authorities that the president has given us give us. Look. I can't -- and I understand it's going to be an incomplete answer, and I can't give you all the fine print as to why, but let me just kind of reverse the answer just a bit. If FISA worked just as well, why wouldn't I use FISA? To save typing? No. There is an operational impact here, and I have two paths in front of me, both of them lawful, one FISA, one the presidential -- the president's authorization. And we go down this path because our operational judgment is it is much more effective. So we do it for that reason. I think I've got -- I think I've covered all the ones you raised.
And this raises a rather obvious question, the answer to which pretty much answers every last Democrat's anti-Bush "Bush's domestic spying" complaint--but for some reason no-one has asked the question or thought about it's implications.
And here's the obvious question, in all it's glory--the one which no-one seems to want to ask or even think about:
Why two paths?
Think about it for a second. Why would the NSA need two legal paths to legally justify something? I mean, if it's legal, it's legal, and who needs two justifications?
Or (Bill says, shoving the slow mental wheels long since rusted in the heads of the Major Media Editor's brains), could it be that each legal path has different ramifications as to what you can do with the intelligence gathered by each legal regime?
If you're a fan of the TV show Law and Order as I am, you'll remember one of the common subplots deals with the illegal gathering of evidence. Often some cop opens a drawer he wasn't supposed to or looks on a shelf that is not "in plain sight"--and we get the inevitable result of this fundamental violation of the suspect's Fourth Amendment Right: the evidence is tossed out of court. Sometimes whole plots revolve around the "inevitable discovery" rule, to re-admit evidence that is the "fruit of the poisonous tree" by claiming that such evidence would have been "inevitably discovered" in the normal course of police work.
Lately such plot lines have stopped being quite so in-vogue with Law and Order, in part because they were probably a bit confusing to most of the viewing public, who wants their good guys to wear white hats and their bad guys wear black hats. (What? We cannot admit the gun because the shelf was above eye level and thus not in plain sight? Well, I guess we're going to turn this over to another investigator and construct a chinese wall so they can inevitably discover the evidence necessary to back a warrant, so we can readmit the gun as evidence that would be inevitably discovered during the execution of the warrant. That's gripping TV!)
My point, however, is that often the result of a Fourth Amendment Violation is that the evidence gets bounced and cannot be used in a court of law. In more extreme cases such violations may result in censure of the investigator or with investigating the investigator for other criminal activities. But the common outcome is not for the police to be arrested and tossed in jail for violating the suspect's privacy rights--its simply bouncing the evidence--ignoring it as inadmissible as if the evidence was never gathered in the first place.
This tossing of the evidence is a far cry from the thumbscrew and electric-shock tortures which the Major Media implies is the only appropriate answer for violating someone's "fundamental constitutionally-protected rights."
Now keep in mind that violating the Fourth Amendment is not just a "violation of privacy." While one's privacy could reasonably inferred from the Fourth Amendment, that amendment has mostly been interpreted as a restriction on what law enforcement officials can and cannot do while investigating violations of the law. That is, it's not about the uncovering and dissemination of unflattering or potentially embarassing information (a violation of privacy), but with the rules to how information may be gathered. Privacy violations--that is, spreading unflattering information--may be covered elsewhere in the law, but it's not the primary concern of the Fourth Amendment.
In times of War, the Fourth Amendment goes out the window. A soldier in the field does not have the ability in the microsecond's time he has to react to a bullet from an enemy in the field embedding in the brick wall behind his head to carry out an investigation, obtain legal council for the guy shooting at him, taking it to a judicial council, and declaring guilt and appropriate punishment before he pulls the trigger. No; the soldier shoots back--and that's the end of that.
Warfare is different than Law Enforcement.
It would be unreasonable to interpret the Fourth Amendment as applying to soldiers in the field, or soldiers at home carrying out activities in their prosecution of a shooting War. To say the restrictions against improper search applies to Warfare is to say that every soldier must have along with him two lawyers (one for him and one for his enemy combatant), an impartial judge, and must hold a full and proper hearing before he shoots back.
But here's where things get interesting. Just because in a shooting war under properly laid out rules of engagement, you can shoot back at the guy shooting at you, this does not mean that the evidence gathered during a time of war can cross the fence to a legal action against that enemy soldier. Intelligence gathered during a time of war under the rules of war are gathered for the conduct of that war--and unless it was gathered in accord with the Fourth Amendment, cannot be used in a legal prosecution.
But you can blow them to hell.
There is a fence, established by our interpretation of the Laws of War (and the inherent powers of the President to conduct War) and our interpretation of the Fourth Amendment, that separates Warfare from Legal Prosecution. Intelligence gathered in war cannot be used for enforcing crimes, and (for practical reasons) law enforcement techniques are too cumbersome and slow to be used in a time of war. (Not to mention that law enforcement tends to be after the fact--that is, law enforcement generally steps in to discover after the crime is committed who broke the law. Law enforcment only stops murderers, for example, by telling would-be murderers that while we generally cannot stop you from killing someone, we will catch you and make you pay after you commit the murder. This is worthless in War where the whole goal is, to paraphrase Patton's famous saying, not to die for your own country but make some other poor son-of-a-bitch die for his.)
This is why we have two legal paths for the NSA.
In the former legal regime, established by FISA, where warrants are required before someone can be wire-tapped, evidence of complicity with Al Qaeda can be sent to law enforcement such as the FBI, and the guy can be legally picked up and prosecuted in a court of law.
In the later regime, established by Presidental Authority and bolstered by the Congressional declaration of War after 9/11, warrants are not needed. However, the evidence is not valid in a court of law, may not be formally shared with the FBI for fear of tainting any law enforcement related information gathering by the FBI, and probably violates the Fourth Amendment rights of those whose lines were tapped.
But in the later regime, on the right hand path of War, you can use the evidence to put a bullet in your enemy's head.
The two legal paths represent the left hand of Peace (through law enforcement) and the right hand of War, separated by a fence defined by the Fourth Amendment. That the NSA is granted two different legal regimes depending on who they are dealing with is only fitting in our environment, where sometimes we want to arrest the guy and put them in jail, and sometimes we want to launch a guided missle and blow them to kingdom come. This puts every decision the NSA makes a sensitive one, because they must be able to guess at the outstart of an investigation what the desirable outcome should be. And if they guess wrong--the hard intelligence gathering work could be useless: it's not like you can launch a guided missle at a camp in Portland any more than you can send a couple of beat cops to arrest a terrorist in Pakistan.