Powell, NSA, and the FISA Court

Once again, Colin Powell takes a dive for the Bush administration, saying there was nothing wrong with the NSA wiretapping program:

"My own judgment is that it didn't seem to me, anyway, that it would have been that hard to go get the warrants," Mr. Powell said. "And even in the case of an emergency, you go and do it. The law provides for that."

But Mr. Powell added that "for reasons that the president has discussed and the attorney general has spoken to, they chose not to do it that way."

"I see absolutely nothing wrong with the president authorizing these kinds of actions," he said.

Or does he? It's unclear to me. He says he sees nothing wrong with it, but at the same time he dismisses the only justification the White House has advanced for bypassing the FISA court: that it would have been too difficult to go through the normal process. Is this good soldier Powell, sticking up for his former boss? Or devious bureaucratic warrior Powell, sticking in the shiv while appearing to defend him? Or is he just hedging his bets, as Powell is wont to do (he made a point of saying he 'had not been told' about the program)?

In any case, it looks like he was wrong about it being easy to get the warrants. The Seattle Post-Intelligencer reports that the FISA court wasn't all that accommodating after all:

The judges modified only two search warrant orders out of the 13,102 applications that were approved over the first 22 years of the court's operation. In 20 of the first 21 annual reports on the court's activities up to 1999, the Justice Department told Congress that "no orders were entered (by the FISA court) which modified or denied the requested authority" submitted by the government.

But since 2001, the judges have modified 179 of the 5,645 requests for court-ordered surveillance by the Bush administration. A total of 173 of those court-ordered "substantive modifications" took place in 2003 and 2004 -- the most recent years for which public records are available.

The judges also rejected or deferred at least six requests for warrants during those two years -- the first outright rejection in the court's history.

Predictable wingnut talking point: the judicial activists on the FISA court were meddling in the War on Terra. And the P-I story obliges by talking about 'unprecedented second-guessing' in the opening paragraph.

Out here in the reality-based community, though, this is pretty damning stuff. What it says is that they were going after warrants for which they had no legal justification:

To win a court-approved wiretap, the government must show "probable cause" that the target of the surveillance is a member of a foreign terrorist organization or foreign power and is engaged in activities that "may" involve a violation of criminal law.

Faced with that standard, Bamford said, the Bush administration had difficulty obtaining FISA court-approved wiretaps on dozens of people within the United States who were communicating with targeted al-Qaida suspects inside the United States.

In other words, Powell is full of shit: they almost certainly had no probable cause sufficient to get warrants for the wiretapping they decided to do without seeking court authorization. Which would mean that the wiretapping was not just illegal because they didn't follow the right process; it was inherently illegal, outside the bounds of what would have been allowed if they had taken it to the court. And it means they knew that (because the FISA court had shown them what they could and could not get approved).

Update: Steve Benen, guest-posting at Political Animal, also notices Powell's contradictory comments.

Update #2: So does Shakespeare's Sister, who has an awesomely hilarious graphic.

[That's all, folks]