Well, what follows is from the government.
The NSA has simply thrown FISA away, along with the 4th Amendment, on the authority of the President and the Attorney General:
I've talked in other circumstances -- I've talked this morning -- about how we've made very aggressive use of FISA. If you look at NSA reporting under this program -- you know, without giving you the X or Y axis on the graph -- NSA reporting under this program has been substantial but consistent. This is NSA counterterrorism reporting. Substantial but consistent. NSA reporting under FISA has gone like that. FISA has been a remarkably successful tool. We use it very aggressively.The position of our government is that the President has the power to reshape law to suit his preferences. He is the three branches of government in one office: he acts as the Supreme Court (interpreting law) and Congress (writing legislation), and as the head of the Executive then executes the new law. Beyond even that, he also gets to interpret or set aside, as it suits him, the provisions of the very Constitution which actually gives him any authority in the first place. His position is that, having been elected, he is now superior even to the law that establishes his office and authority. That this is his position is now beyond argument.
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.
Gen. Hayden's statments make this perfectly clear:
QUESTION: Quick follow-up. Are you saying that the sheer volume of warrantless eavesdropping has made FISA inoperative?This, apparently, is the General's definition of "operationally effective:"
GEN. HAYDEN: No. I'm saying that the characteristics we need to do what this program's designed to do -- to detect and prevent -- make FISA a less useful tool. It's a wonderful tool, it's done wonderful things for the nation in terms of fighting the war on terror, but in this particular challenge, this particular aspect -- detect and prevent attacks -- what we're doing now is operationally more relevant, operationally more effective.
QUESTION: General, first, thank you for your comments. And I think you somewhat answered this in your response, and this goes to the culture and just to the average American. Let me just say this -- that domestic spying and the faith communities are outraged. Churches in Iowa, churches in Nebraska, mosques across the board are just outraged by the fact that our country could be spying on us. You made a point that the young lady at State Penn shouldn't have to worry, but we're worried that our country has begun to spy on us. We understand the need for terrorism and the need to deal with that, but what assurances -- and how can you answer this question, what can make Americans feel safe? How can the faith community feel safe that their country is not spying on them for any reason?The unnamed "reverend" who asked that question followed that answer with a more cogent question, which went unanswered:
GEN. HAYDEN: Reverend, thanks for the question, and I'm part of the faith community too. And I've laid it out as well I could in my remarks here as to how limited and focused this program is, what its purpose is, that its been productive. We are not out there -- and again, let me use a phrase I used in the comments -- this isn't a drift net out there where we're soaking up everyone's communications. We are going after very specific communications that our professional judgment tells us we have reason to believe are those associated with people who want to kill Americans. That's what we're doing.
QUESTION: Just know, General, that the faith communities will take that back, but the faith communities are scared. Where does this stop?
Where, indeed? The general's answer is the very definition of a"fishing expedition." Governments never admit that they are just scooping up every available piece of information. They always claim they are only picking on people whom they have "reason to believe" are up to no good. But even that seemingly limited assertion of power is not the standard of search authorized under the 4th amendment.
Nor is it the claim that "the Attorney General said it's okay" a legal defense. That is, quite simply, a variation on the rejected defense at Nuremberg. The General is effectively saying he is only following orders. But the attorney general has no authority to make this order, or to justify this conclusion. for the simple reason that even the Supreme Court does not have the power to lower the standard for search below probable cause. The Court may, in a specific instance or situation such as this, redefine probable cause in a different way than it has ever been defined before, but frankly, that would be a Bush v. Gore situation, in which the Court would be forced to either discard stare decisis, or to hold that its conclusion applied only to the facts before it, and could never be used by any parties ever again.
Which would be frightening enough. For the Attorney General to assert that authority is absolutely unconstitutional. And the only solution now is a complete housecleaning. Alberto Gonzales must be impeached, or otherwise removed from office. George W. Bush must be removed from office. Dick Cheney must be removed from office. Any official in the Administration that has supported this absolutely illegal and fundamentally unconstitutional interpretation of the law and of Presidential power, must be removed from public office.
The system of government we have simply cannot sustain this kind of absolute disregard for its foundational principles, and its foundational document. All governmental power flows from the Constitution. To find that this document gives certain governmental officials power over even the document itself is not merely unconstitutional: it is tyranny.
Addendum: this press conference is also worth listening to, to catch the defensive, aggressive tone, in which Gen. Hayden made his assertions. The question and answer session is available at DemocracyNow! This is not an issue that is going to be allayed by assurances that the government can be trusted, or that it is only acting to protect us. The ordinary people who asked questions were clearly upset, clearly concerned, and clearly not reassured by the General's answers.
Nor should they be.