You probably heard yesterday’s good news that the ACLU prevailed in their petition for an injunction against the NSA warrentless wiretapping. (Our case against AT&T to hold them accountable for allegedly participating in this now-ruled-unlawful program continues in the courts.)
However, the ruling was appealed (no surprise) and the government also asked for, and was granted a stay of the injunction. So the wiretaps won’t stop unless the appeal is won.
But this begs the question, “Why do you need a stay?”
The line from the White House has been that the government engaged in this warrantless wiretapping because the the President had the authority to do that, both inherently and under the famous AUMF. And they wanted to use that authority because they complained the official system mandated by law, requiring process before the FISA court, was just too cumbersome. Even though the FISA law allows immediate emergency wiretaps without a warrant as long as a retroactive application is made soon.
We’ve all wondered just why that’s too cumbersome. But they seemed to be saying that since the President haud the authority to bypass the FISA court, why should they impede the program with all that pesky judicial oversight?
But now we have a ruling that the President does not have that authority. Perhaps that will change on appeal, but for now it is the ruling. So surely this should mean that they just go back to doing it the way the FISA regulations require it? What’s the urgent need for a stay? Could they not have been ready with the papers to get the warrants they need if they lost?
Well, I think I know the answer. Many people suspect that the reason they don’t go to FISA is not because it’s too much paperwork. It’s because they are trying to do things FISA would not let them do. So of course they don’t want to ask. (The FISA court, btw, has only told them no once, and even that was overturned. That’s about all the public knows about all its rulings.) I believe there is a more invasive program in place, and we’ve seen hints of that in press reports, with data mining of call records and more.
By needing this stay, the message has come through loud and clear. They are not willing to get the court’s oversight of this program, no way, no how. And who knows how long it will be until we learn what’s really going on?