The Democratic criticism which had so irked the Senator was in regard to the revelation that the National Security Agency (NSA) was wire-tapping the phone calls of Americans without a warrant. In fairness, this issue was more complicated than it was often made out to be. Outrage about the violation of privacy could sometimes be tempered with relief that the administration was doing something to try and prevent future terrorist attacks on the country.
The warrant in question was meant to be obtained from the United States Foreign Intelligence Surveillance Court, often referred to as “FISA” because of its origins in the Foreign Intelligence Surveillance Act of 1978. The court is in charge of overseeing requests for surveillance warrants made by government agencies like the FBI. The FISA court is not meant to be adversarial; it generally exists to help the government and offers a lot of leeway in regard to domestic surveillance. The rules even allow the Attorney General to authorize surveillance for 72 hours before having to obtain the formal warrant from the court.
When I researched this during the controversy, it struck me as very fair. The 72 hour provision allowed the government to act quickly in emergency situations. If they couldn’t come up with a reason to spy on someone after three days, then what was the emergency? It was hard for me to imagine that the FISA courts had been uncooperative with the Bush administration’s efforts to sniff out potential domestic terrorist threats. This president and his associates were just constantly trying to eke out more power for themselves; the sidestepping of FISA rules seemed less about convenience and more a demonstration of their authoritarian mentality. They’re in charge, they can do whatever they want, and any existing laws regulating the conduct of the executive branch don’t apply in the War on Terror.
In discussions of this issue, many right-wing pundits and politicians consistently ignored the bit about the 72 hours. It was much easier for them to paint Democrats as opposed to any effort to spy on terrorists.