Court Ruling that NSA Wiretapping is Illegal Drives Emergency Push for New Spy Powers, Newsweek Reports

By Ryan Singel

The Bush Administration’s hard press for emergency wiretapping powers from Congress before the August break now has an explanation: a secret court decided several months ago that at least one portion of the NSA wiretapping program is illegal, according to MSNBC Newsweek. That program operated for four years without court supervision, until the Administration bowed to public pressure in January 2007 and allowed the secret Foreign Intelligence Surveillance Court to review it.

In short, prior to the Patriot Act passage, the Administration launched a series of secret, warrantless wiretapping operations, which included snooping on Americans and wholesale data mining of innocent Americans’ communications records (the latter only according to press reports). The Administration believes it can do this surveillance since it is a King in wartime and thus never asked Congress to make any of this legal in the Patriot Act for fear it would be turned down.

Years later, a part of this secret surveillance is revealed by the New York Times. After a year of criticism and revelations, the Administration agrees to let a super-secret and very compliant court oversee the program using some very super secret, and legally dubious program warrants. A few months later, a judge from this court finds portions of the program illegal. The administration refuses to make this decision public. Instead, it goes on offense and says it needs the power to wiretap anyone overseas including Americans. A Republican Congressman accidentally leaks the a hint of the decision on Fox News, while saying that Democrats are putting the country at risk. Newsweek’s Michael Isikoff and Mark Hosenball (published on followed up with good reporting.

The order by a judge on the top-secret Foreign Intelligence Surveillance Act court has never been publicly acknowledged by administration officials–and the details of it (including the identity of the judge who wrote it) remain highly classified. But the judge, in an order several months ago, apparently concluded that the administration had overstepped its legal authorities in conducting warrantless eavesdropping even under the scaled-back surveillance program that the White House first agreed to permit the FISA court to review earlier this year, said one lawyer who has been briefed on the order but who asked not to be publicly identified because of its sensitivity.

Now, we know why there’s an intelligence gap. Democrats afraid of looking soft on terrorism are now at work to give more spying power to the government to fill the mineshaft gap.

Once again: a secret court judge found that the Bush Administration’s formerly warrantless wiretapping program was illegal.

And that was the program AFTER it was scaled down in March 2004 after Justice Department officials revolted. I wonder what judges would have made of the earlier program — the one so bad that then-Attorney General John Ashcroft was ready to resign.

If there’s an intelligence gap, and I’m not sure there is, it’s only due to the Administration’s hubris.