On August 17 in a suit brought by the American Civil Liberties Union, U.S. District Judge Anna Diggs Taylor in Detroit ruled that Bush's warrantless Terrorist Surveillance Program is in violation of the Foreign Intelligence Surveillance Act (FISA), the Separation of Powers doctrine, the Administrative Procedures Act, and the First and Fourth Amendments to the Constitution.
Bush first told us that warrants were obtained for all wiretapping; that was a lie. Then he said that taps were conducted only if one of the parties was in a foreign country; that too was a lie. Now he says that we're at war and he doesn't need a warrant under any circumstances. This is, of course absurd on the face of it. The problem is that Bush doesn't want a sworn record of whom he's tapping and why.
Obtaining a warrant from the FISA court is a simple, even routine matter; only 4 of more than 20,000 requests have ever been denied in FISA's 27 year history. However getting a warrant is more than a mere technical nuisance; it furnishes a sworn record of the reasons for the need to wiretap and it gives assurance that it is not a capricious intrusion on civil liberties.
Let's get something straight; neither I nor any other liberal Democrat I know of has any serious objection to government eavesdropping in the legitimate pursuit of criminal activity, especially potential terror attacks. If surveillance is conducted without a sworn record of the reasons for it then how are we to know that the tap isn't made simply because Bush or an agent acting under his direction has a "gut feeling" that those being surveilled are up to no good? Or for political reasons or even for personal enrichment? Should I trust him? Should anybody? The constitution says that we don't have to, he must satisfy a court that there is probable cause to believe that the person being wire-tapped might be doing something wrong. It's clear to anyone who has a healthy skepticism of government that the only reasonable explanation for Bush's desire to evade this requirement is that he's spying for purposes other than national security and he's loathe to leave a paper trail that would expose his political or even criminal intent.