The Fourth Amendment to the US Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This amendment serves, in part, to protect US citizens from unreasonable searches (including surveillance) without probable cause. To ensure this protection, a complex legal apparatus has been put in place in order to ensure that the privacy of US citizens is respected and any wiretaps, etc. are only issued with the proper degree of judicial review.

On Friday, it came to light that in 2001 President Bush signed a secret executive order that would allow the NSA (National Security Agency) to perform surveillance against US citizens communicating with foreign nationals without the need for a warrant.

Previously, in order to install wiretaps or otherwise secretly spy on American citizens a warrant would need to be issued through the FISA (Foreign Intelligence Surveillance Act) court. Out of the thousands of FISA warrants applied for since 1979, only 4 have ever been denied.

In his defense, the President has stated that the purpose of these warrant-less wiretaps is to better protect Americans from terrorism:

First of all, right after September the 11th, I knew we were fighting a different kind of war. And so I asked people in my administration to analyze how best for me and our government to do the job people expect us to do, which is to detect and prevent a possible attack. That’s what the American people want.

We looked at the possible scenarios. And the people responsible for helping us protect and defend came forth with the current program, because it enables us to move faster and quicker, and that’s important. We’ve got to be fast on our feet, quick to detect and prevent.

We use FISA still. You’re referring to the FISA accord in your question. Of course we use FISAs.

But FISAs is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect.

And having suggested this idea, I then, obviously, went to the question, is it legal to do so? I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely.

As I mentioned in my remarks, the legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress.

The problem with this explanation is that the government can actually obtain warrants after surveillance has already begun, as long as they act expeditiously to do so. The timeliness (or lack thereof) in obtaining these warrants is not a valid excuse for spying on American citizens without a warrant. Even if this were a serious obstacle, the US Constitution is not meant to be discarded when it becomes inconvenient. The President could very well have called upon Congress to help institute changes to FISA in order to streamline the process of obtaining warrants. This should not have been difficult - far more controversial provisions were successfully run through Congress in the days following 9/11 as a part of the PATRIOT Act.

Of course, it is true that there are provisions in US law which allow for warrant-less surveillance. Title 50, 1802 USC allows for this, but only when dealing with communication between foreign powers/entities. It does not allow such surveillance when there is a “substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.”

So far as I can tell, it would appear that our President secretly violated the spirit and the law as written in the US Constitution, and has declared his intent to continue doing so. While I have no love for the terrorists that he is supposedly targeting through these wiretaps, the law serves an important purpose to limit the powers of government and protect the rights of its citizens. This is clearly an un-Constitutional use of the Executive branch, and is worthy of a serious bipartisan investigation by Congress - and, quite possibly, impeachment.

Update (2:01 PM): An alternative point of view, written by John Schmidt (former Associate Attorney General under the Clinton administration). It still doesn’t seem to address two issues, though:

• The distinction between warrant-less wiretaps against foreign nationals (which are allowed) and those against US citizens (which, it would seem, are not).
• Why warrant-less surveillance is even necessary when it is (apparently) so easy to obtain a warrant - and one can do so after surveillence has begun.

The latter issue is particularly worrisome, as the only reason I can come up with for this is that the President wishes to hide the specific purpose of these wiretaps even from the FISA court judges. I have to wonder if, when all is said and done, we find that these wiretaps were not only used for purposes directly relating to acts by foreign terrorists.