The issue has NOT gone away

I realize it has been a long time since I have posted much about warrantless wiretapping (or torture). Neither has had as much press of late though both remain very much on the radar.

Marcy Wheeler continues to do the most amazing work trying to sift through evidence, work through timelines, and connect the dots so the rest of us can understand what has happened and what is, or is not, being done about it.

This won't make sense if I don't cite a larger than usual chunk. If I am violating fair use, Marcy, tell me and I will whack this down to a link. My intent is to keep people alert and informed.

There were several things going on at once (see this post for more detail). There was some debate about the AUMF--but that got signed on September 18. There were initial discussions about the PATRIOT Act--including how FISA should be altered in it. There was a briefing of HPSCI on October 1 that--Nancy Pelosi understood--was part of expanded NSA authorities. And--according to Barton Gellman--the warrantless wiretap program was approved on October 4, 2001, and it began on October 6, 2001.

In other words, the program was formally approved on the 16th day after the AUMF.

But at least according to Nancy Pelosi, Congress was briefed on ongoing underlying activities as early as October 1.

Meaning, the Bush Administration was already using those expanded authorities--but they were doing so by exploiting the 15-day exemption written into FISA!

So Yoo's analysis is not just dead wrong because FISA clearly contemplates its application even during wartime. But it's even worse because during this particular wartime situation, the Administration had already used that 15-day exemption period as it debated what and how to implement its warrantless wiretap program.

The Administration showed, by its actions, that it knew the AUMF didn't trump FISA. But then it proceeded to base its entire wiretap program on that very assumption.

[Emphasis mine]

You can see Marcy's documentation at emptywheel.

AUMF = Authorization to Use Military Force against Terrorists (September 18, 2001)
FISA = Foreign Intelligence Surveillance Act (October 25, 1978)
HPSCI = House Permanent Select Committee on Intelligence
USA PATRIOT Act: " The contrived acronym stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001" (October 26, 2001)

Why is all this a big deal? Because it is patent that the Bush administration violated the Constitution with impunity.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

--the BB