Gonzales: Getting Warrants is Hard

Via Brett Marston, I read Abu Gonzales' Georgetown speech rationalizing the NSA wiretapping program. As Brett says, it's pretty thin stuff on the whole...but one argument in particular struck me as weirdly self-contradictory:

There’s a serious misconception about these emergency authorizations. People should know that we do not approve emergency authorizations without knowing that we will receive court approval within 72 hours. FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted. That review process can take precious time.

Thus, to initiate surveillance under a FISA emergency authorization, it is not enough to rely on the best judgment of our intelligence officers alone. Those intelligence officers would have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied, then lawyers in the Department of Justice would have to be similarly satisfied, and finally as Attorney General, I would have to be satisfied that the search meets the requirements of FISA. And we would have to be prepared to follow up with a full FISA application within the 72 hours.

A typical FISA application involves a substantial process in its own right: The work of several lawyers; the preparation of a legal brief and supporting declarations; the approval of a Cabinet-level officer; a certification from the National Security Adviser, the Director of the FBI, or another designated Senate-confirmed officer; and, finally, of course, the approval of an Article III judge.

So let me see if I follow this: they have so much respect for the FISA court process that they feel compelled to comply with it in excruciating detail, dotting every last i and crossing every last t before doing the emergency wiretapping for which they need to get retroactive approval; so rather than sully the process with a less-than-perfect application they'll just show their immense respect for it by blowing it off completely.

I must be missing something here.

What's missing, of course, is the part Abu Gonzales doesn't mention: that the FISA court had already rejected or modified a fair number of their wiretap requests. The whole nonsensical rationalization is just so many words. It isn't about speed or flexibility; it's about avoiding review altogether. It's about the supreme power of the monarch executive.

[That's all, folks]