FISA Courts, Domestic Spying/Eavesdropping On Americans, And The U.S. Constitution

[Ed. note: Hayden, as you may recall, is the genius who argued about a year or two ago that the fourth amendment to the U.S. Constitution does NOT contain a "probable cause" clause regarding unreasonable search and seizure. To emphasize his words, Hayden then told us, "If there is anyone who is an expert on the Constitution, it's the NSA, and if there is any amendment we know best, it's the 4th amendment." Uh. Right. Feel better? Neither do I. Then, of course, to reward Hayden for a job well done (wiping the president's ass with the constitution), Bush promoted him to an even more important position.]

As you might expect, lawyer/constitutional expert/blogger Glenn Greenwald is looking for the answers to some very large questions regarding President Bush's decision to violate the U.S. Constitution by conducting illegal eavesdropping on domestic phone calls between Americans who have not yet been shown to have done anything to warrant (ah, that double-edged word) it. Wrote Glenn yesterday:

(1) Why couldn't the new rules simply have been instituted years ago, as part of a newly amended FISA (which the administration requested and obtained from Congress in 2001 and which Congress repeatedly asked to do multiple times both prior and subsequent to revelation of the President's lawbreaking)?
(2) If, as Attorney General Gonzales claims, they were seeking to develop new rules as early as the Spring of 2005 to enable eavesdropping under FISA, why didn't they say so when the controversy arose over their lawbreaking?
(3) For those who claimed that our national security was jeopardized and that The Terrorists were given our state secrets when The New York Times revealed that the President was eavesdropping without warrants, didn't Alberto Gonazles just "give the terrorists our playbook" by telling them how we are eavesdropping, i.e., that we are doing so with warrants?
(4a) Could they possible think that this "concession" (what we call "obeying the law") is going to forestall or preclude Congressional investigations into all of the eavesdropping they have been doing over the last five years without anyone watching?
(4b) And relatedly, is this magnanimous assent to comply with the law supposed to relieve them of the consequence from their lawbreaking?
(4c) And related further, are they now going to tell the Sixth Circuit that there is no reason to bother with figuring out if Judge Diggs Taylor was correct when she ruled that the President violated both the Constitution and the law by eavesdropping on U.S. citizens without the warrants required by law?

UPDATE: In January, 2006, current CIA Director and former NSA director Michael Hayden warned that even discussing eavesdropping issues helps the Terrorists because it reminds them that we eavesdrop:

GEN. HAYDEN: You know, we've had this question asked several times. Public discussion of how we determine al Qaeda intentions, I just -- I can't see how that can do anything but harm the security of the nation. And I know people say, "Oh, they know they're being monitored." Well, you know, they don't always act like they know they're being monitored. But if you want to shove it in their face constantly, it's bound to have an impact.

And so to -- I understand, as the Reverend's? question just raised, you know, there are issues here that the American people are deeply concerned with. But constant revelations and speculation and connecting the dots in ways that I find unimaginable, and laying that out there for our enemy to see cannot help but diminish our ability to detect and prevent attacks.

Alberto Gonazles said this repeatedly, too -- that merely by raising the issue of eavesdropping, we remind the Terrorists that we eavesdrop. As a result, the ones who forgot that we eavesdrop won't make the calls that they otherwise would have made to talk about their plots, and we won't know what they're doing and we won't be able to catch the Terrorists. That's how the administration explained how our national security had been so gravely harmed by the Times article that "told" the Terrorists that we were eavesdropping without warrants.

Emphasis mine.