In its opinion, the Court of Review said the FISA Court had, in effect, attempted to unilaterally impose the old 1995 rules. "In doing so, the FISA Court erred," the ruling read. "It did not provide any constitutional basis for its action — we think there is none — and misconstrued the main statutory provision on which it relied." The FISA Court, according to the ruling, "refus[ed] to consider the legal significance of the Patriot Act's crucial amendments" and "may well have exceeded the constitutional bounds" governing the courts by asserting "authority to govern the internal organization and investigative procedures of the Department of Justice."Isn't that helpful? No, I didn't think so either, so I'll put it in terms most people can understand.
And then the Court of Review did one more thing, something that has repercussions in today's surveillance controversy. Not only could the FISA Court not tell the president how do to his work, the Court of Review said, but the president also had the "inherent authority" under the Constitution to conduct needed surveillance without obtaining any warrant — from the FISA Court or anyone else. Referring to an earlier case, known as Truong, which dealt with surveillance before FISA was passed, the Court of Review wrote: "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."
Not long ago I had to sit through many hours of briefings on what is and isn't a legal search under the law. Most everybody can list what's required, probable cause, a warrant, and so forth. But for these wiretaps, the reason they're legal is because they're not a search for law enforcement purposes. They're intelligence gathering for national defense purposes.
You see, we're at war. In prosecuting a war, the president has the duty to fight the war as best he can, and collecting intelligence on the enemy is part of his responsibility. When we were worried about the Soviet Navy coming over the horizon and firing missiles at America, we didn't need to go get a warrant to try to intercept and exploit their communications. Same thing goes for terrorists. If they are intent upon killing thousands of Americans and destroying "the Great Satan", and are using e-mail or cell phones or whatever to communicate plans and orders, the national defense purpose trumps the law enforcement purpose and different rules apply.
This principle applies in other situations, too. For example, a number of people are up in arms because, three years after 9/11, much of the cargo that enters the country by ship isn't inspected upon arrival. Should Homeland Security need a warrant for each and every one of those inspections? The ACLU might want to aruge they do, but the right answer is no, because it's not done primarily for a law enforcement purpose, it's done to keep really bad things from being smuggled into the country to kill Americans. Now, if the inspectors discover two tons of cocaine in one of those containers while inspecting for the national defense purpose - so sad, too bad - the shipper can still be prosecuted because the container was inspected for a legal purpose.
See, isn't that easy?