This WaPo article clarifies the problems inherent in the pre-9/11 law enforcement attitude I noted here. Apparently the FISA judges don’t regard evidence generated through warrantless wiretaps as admissible in making the case for a FISA warrant.
Connected with this story is this WSJ editorial, which argues for the repeal of FISA:
What FISA boils down to is an attempt to further put the executive under the thumb of the judiciary, and in unconstitutional fashion. The way FISA works is that it gives a single judge the ability to overrule the considered judgment of the entire executive branch. In the case of the NSA wiretaps, the Justice Department, NSA and White House are all involved in establishing and reviewing these wiretaps. Yet if a warrant were required, one judge would have the discretion to deny any request.
As a practical war-fighting matter, this interferes with the ability to gather intelligence against anonymous, al Qaeda-linked phone numbers. FISA warrants apply to people, and are supposed to require "probable cause" that the subject is an agent of a foreign power. But as Mr. Gonzales and Deputy National Intelligence Director Michael Hayden explained Monday, in fast-moving anti-terror operations it’s often impossible to know if someone on the U.S. end of an al Qaeda phone call is actually an "agent." That means the government must operate on a different "reasonable basis" standard.
I’d quibble with one part of this argument. In his colloquy with Mike DeWine on Monday, the Attorney General seemed to concede that "reasonable basis" and "probable cause" were equivalent terms, but he also implied that "probable cause" works differently when we’re talking about identifying agents rather than about the commission of a crime. The latter obviously deals with the law enforcement, the former with intelligence-gathering in wartime. If indeed the FISA court won’t grant warrants on the basis of information developed through this alternative route, they are operating on a pre-9/11 basis. And, by the way, if you actually read law’s documentation requirements, you’d be compelled to agree that it’s not a "nimble" instrument in a fast-moving situation, and it’s not clear that it can be revised to make it so.
Update #2: This WSJ editorial comments on yesterdays WaPo article. And heres the transcript of Hugh Hewitts conversation with John Eastman and Erwin Chemerinsky about the behavior of the two FISA judges.