I don’t understand your comment about the difficulty of obtaining a retroactive warrant. They go ahead and do the wiretapping, and then they have to go to court within x number of days and present their evidence after the fact.

The situation you describe where people are moving around is one of the exigent circumstances where retroactive warrants would be most useful because it enables a wiretap to be done immediately when all the moving around is happening. Then, they would have to stop by court days later to say, “oh, by the way, we had to do an emergency wiretap on Mr. X because blah, blah, blah.”

Now, as Justin says, none of this should be a problem unless people are being spied on that should not be . . . .

This time? How likely is Osama bin Laden to try to use Cindy Sheehan as a cover? Seems like an over-reach to me.

A lot of us, it seems, will give the president the benefit of the doubt for erring on the side of security. But in situations like this, to find out what you really think, you have to subtract the current president, however you feel about him, from the equation of what you know, and plug in 1. your favorite president and 2. your most despised possible president, and then imagine him (or her) doing such things.

Every president since FISA’s passage has asserted that he retained inherent power to go beyond the act’s terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that “the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.â€Â?”

There is an inherent difference between a warrantless physical search of property and a wiretap, i.e. electronic surveilance of a citizen’s email, phone calls or other conversation or dialogue. This latter requires a FISA court order. With as relaxed as the FISA courts have been regarding issuing wiretap approvals, it makes no sense to me that Bush and Co. would not goto court to get the warrant, even retroactively, unless he knew the court would never authorize it, making such surveilance illegal in light of the fourth amendment.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

Have you not been reading who we’re spying on? Peace activists who have no ties nor any communications with any of foreign terrorist groups. And a gay rights group who is simply against the military’s don’t ask/don’t tell policy? And the list goes on. debsay, please…these cases are obviously beyond the scope of a President’s inherent authority.

Also, why didn’t the President then go back and get retroactive warrants if getting the wiretaps were such an important national security issue?

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that “All the … courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence … We take for granted that the president does have that authority.”

The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an “agent of a foreign power,” which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law’s procedures.

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, “FISA could not encroach on the president’s constitutional power.”

Every president since FISA’s passage has asserted that he retained inherent power to go beyond the act’s terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that “the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.”"

Seems pretty clear cut to me…. where is the confusion? The Federal Courts have already decided this at least 4 times. What makes you think that it is going to be different this time?