FISA OK for NSA

Josh Marshall notes that as of December 31 2002 the FISA court had never ever denied an application for a warrant for a wire tap.

So what explanation is there for why "President Bush signed a secret order in 2002 authorizing the National Security Agency to eavesdrop on U.S. citizens and foreign nationals in the United States, despite previous legal prohibitions against such domestic spying, sources with knowledge of the program said last night."?

Brad DeLong predicts out of sample. His blog isn't opening but he said the only reason Bush would do this is that the Bush administration knew they were going to want to wiretaps in the future which the FISA court would not approve. Indeed, as Josh Marshall notes, a report notes that, in 2003 the FISA court denied 4 applications and

"made substantive modifications to the government's proposed orders" in 79 applications out of 1727 applications made and 1724 approved.

[snip]

In 2004, the number of approved warrants with "substantive modifications" was 94 out of a total of 1758.

Before the year 2000 modifications were seldom if ever made. In 2000, there was one; in 2001, two; and in 2002, there were two applications modified but those modifications were later reversed..

2003 is where the change comes.

Of course, by then the change didn't matter, since Bush had told the NSA to ignore the FISA court. Before reading Marshall, I assumed that they broke the law just because it was there and they find obeying the law humiliating for The President Who Talks to God.

My personal guess is that the anticipated difficulty was the retirement of Royce Lamberth as FISA judge. Hmm who is Royce Lamberth. Well he has a bit part in the 9/11 committee report as the guy who really built the wall between FISA investigations and the FBI. He also appears to have become very defferential to the White House when Bush entered it. Finally Royce had a very, very different view of executive priviledge when the chief executive was named Clinton, as this google search of "Royce" "Lamberth" AND "Lewinsky" shows.

All in all a stellar performance. I have long wondered why no one ever mentioned that one reason old Royce might have not had time to reconsider restrictions on investigations of al Qaeda was that he was too busy fighting fellatio.