Why Didn't They Simply Seek a FISA Warrant?

[Chambers, Henry]

Hello all - 

Sure the President did not tell the truth, but presumably he believed
that his conduct was required in the War on Terror.  The President
suggested a few days ago that disclosing the existence of the secret
program was a "shameful act" and "That the fact that we're discussing
this program is helping the enemy." (According to the White House
transcript of the President's press conference a few days ago).  

Presumably, the President needed to act as though the secret program did
not exist for it to be fully effective.  Consequently, it arguably was
necessary to maintain the fiction that the Patriot Act and the NISA were
the only avenues through which the Government was chasing terrorists and
that wiretaps still required court approval.  That necessity required
that President Bush essentially deny the existence of any other program
involving wiretaps to chase terrorists.  

Simply, if President Bush tells the truth, the terrorists win.  Surely
none of us wants that to happen, do we? 

-Hank    

Henry L. Chambers, Jr., Professor of Law
University of Richmond School of Law
28 Westhampton Way
Richmond, VA 23173
804-289-8199

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Howard Gillman
Sent: Thursday, December 22, 2005 3:43 PM
To: Conlawprof at lists.ucla.edu
Subject: Re: RE: Why Didn't They Simply Seek a FISA Warrant?

On the issue of what others were told of the administration's secret
policy:

What is the relevance (if any) that, during the 2004 presidential
campaign, Bush made a public statement (on April 20, 2004) declaring
(implying? reassuring?) that wiretapping and electronic surveillance had
to be supported by a warrant?  The exact quote is as follows:

"Now, by the way, any time you hear the United States government talking
about wiretap, it requires -- a wiretap requires a court order. Nothing
has changed, by the way. When we're talking about chasing down
terrorists, we're talking about getting a court order before we do so.
It's important for our fellow citizens to understand, when you think
Patriot Act, constitutional guarantees are in place when it comes to
doing what is necessary to protect our homeland, because we value the
Constitution."

(You can find an mp3 of the statement at
http://www.canofun.com/blog/videos/bushrovingwiretapapril202004.mp3.)

HG
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