FISA-violative, warrantless wiretapping in march of 2004 -- some possibilities. . .

UPDATED -- 9:00 a.m.:

balkinization has the
goods on all of this.

really. go see.

~~~~~~~~~~~~~~~~~

independently -- and last night,
it seems -- laura rozen came to much
the same speculation as mine, of
this morning -- i'd say the washington
post story confirms its likelihood -- and,
she adds some excellent detail. . .

. . .The problem? Getting a warrant could presumably cause the FISA judge to question why and how the target was identified in the first place. Maybe they found a way to get around the problem of illegal search and seizure. Just a theory. (*It could not have been to get a warrant, because the program didn't get FISA warrants at all until recently. The NYT article below suggests with Comey's modifications, it just came in for some sort of internal DOJ audit). . .

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this morning's washington post
reports that alberto gonzales will
not modify his february 2007 testi-
mony before congress about the spying
authorized in part by the DoJ during
2002 through 2005. . . that would
include the period referred to by mr.
comey in his testimony on tuesday.

here's the washington post excerpt:

Gonzales, testifying for the first time in February 2006 about the Terrorist Surveillance Program, which involved eavesdropping on phone calls between the United States and places overseas, told two congressional committees that the program had not provoked serious disagreement involving Comey or others.

"None of the reservations dealt with the program that we are talking about today," Gonzales said then.

Four Democratic senators sent a letter to Gonzales yesterday asking, "do you stand by your 2006 Senate and House testimony, or do you wish to revise it," prompting the Justice Department's response. . .

now -- from comey's testimony, on tuesday:

COMEY: In the early part of 2004, the Department of Justice was engaged — the Office of Legal Counsel, under my supervision — in a reevaluation both factually and legally of a particular classified program. And it was a program that was renewed on a regular basis, and required signature by the attorney general certifying to its legality.

And the — and I remember the precise date. The program had to be renewed by March the 11th, which was a Thursday, of 2004. And we were engaged in a very intensive reevaluation of the matter.

And a week before that March 11th deadline, I had a private meeting with the attorney general for an hour, just the two of us, and I laid out for him what we had learned and what our analysis was in this particular matter.

And at the end of that hour-long private session, he and I agreed on a course of action. And within hours he was stricken and taken very, very ill…

SCHUMER: (inaudible) You thought something was wrong with how it was being operated or administered or overseen.

COMEY: We had — yes. We had concerns as to our ability to certify its legality, which was our obligation for the program to be renewed. . .

so -- IF alberto gonzales is telling the truth -- and
at this jucture, who knows about that -- but if he is,
then the program comey referred to was not only calls
from the united states to overseas -- governed by FISA.

no, it might very well have been calls orginating and
terminating INSIDE the u.s. of a. -- in other words, it
may have been warrantless, no-judicial-review,
wire-tapping of domestic united states citizens' inter-
actions with one another. and that would plainly violate
the fourth amendment, even in a time of war.

mr. comey -- and i think, even mr. ashcroft -- would
have been willing to go to the mat on this. this is
exactly why FISA has a 45 day renewal window -- it
is for "articuable suspicions" -- ones
that will either pan out, or lead to no lawlessness,
in 45 days' time. . . if the surveilled suspect or
plot is still interesting, and fruitful, at 45 days,
a new approval is required from the DoJ, f.b.i. and white
house. . . so, if mr. gonzales told the truth in february
2006 -- and this morning, to the washington post -- then
he has admitted to ANOTHER spying program -- and
perhaps this one simply ignored our citizens'
fourth amendment rights, altogether.

we shall see, but there is suddenly
a awful lot of great speculation on
this topic. . .