It is not 100% clear that the program is illegal. That a law appears to expressly forbid it does pose a problem, however.

The White House has known of this story for more than a year. Given that, the inability of the administration to cite more than "Presidential prerogatives" thus far, and the level of discomfort associated with the discussion, show that they don't exactly have a long line of on-point precedents to cite and that they really don't want a detailed legal analysis/debate.
[Would it really help them politically to pull out Korematsu?]

As a matter of law, I have trouble seeing how the program can be challenged -- who has standing? The program and targets are secret, not revealed, and can't be prosecuted based on information gathered by these taps. So, how does such a case get to the courts?

S_A_M

It also has the word "unreasonable". TSA conducts searches all the time. But they're considered reasonable.

Not saying these are reasonable searches, but the argument could be made.

That's why Congress is calling for hearings.

But there might be some kind of taxpayer suit for acting in excess of authority by NSA. Is J. Edgar still alive and running that place?

Not a problem. An opportunity.

It's an opportunity to expound on how people who might be upset by this hate America. And probably harbor terrorists. And definitely kill puppies. After all, the only people who have something to worry about are people with something to hide.

Damn. You're taking all the good lines.

Are you sure you don't want to create a Barry Goldwater or Ronald Reagan sock so we can have lengthy conversations?

The problem you have here is the precedent set by the exclusionary rule. Instead of punishing the perpetrator you punish the victim. The cops violate the constitution all the time but the only result is the exclusion of the evidence. So in this case all the evidence aquired through the illegal wiretap will be destroyed and nothing will be done to the people who did the wiretaps.

You know I am not fond of the exclusionary rule, but in this case I believe that if the government found what it is looking for, the violators will not get off at all. They will be terminated.

The problem arises if the government finds less than it is looking for, and, as we know, this has already happened once with respect to Iraq.

Punishing the Guilty
 

I was kidding around, but in all seriousness there seems to be no precedent for punishing government officials who violate the search and seizure laws. If you don't punish an FBI agent (or his superiors for ordering an illegal wirtap) what precedent is there for punishing the Bush administration?

With Clinton there was the precedent of punishing perjurers but I don't see any precedent with wiretap violations.

In the United Kingdom they actually do punish officials who do illegal things and they do not have the exclusionary rule. I think their system is better.

Punishing the Guilty
 

All excellent points. I, for one, welcome our new Republican overlords!

Confidential to the wiretappers: Hi guys! Just kidding about all that stuff I wrote and said before!

Punishing the Guilty
 

I, because I lead such a boring life, have nothing to hide from an illegal wiretap. The FBI could tap me for a year and come up with nothing to prosecute me with. But because the exclusionary rule I have no remedy. If they found something incriminating, then I would have a remedy. But if they don't they just go on their merry way.

FWIW, this was quite good. The only thing that would make me laugh harder would've been a justification of domestic surveillance as a means of promoting Free Markets.

Punishing the Guilty
 

While I can appreciate that Republicans would rather debate the merits of the exclusionary rule (which I agree is something akin to using a hammer to drive a screw), let's stay on point: Administration. Horrifying abuse of power. Outrage (or lack thereof).

"Hey! Look over there!" is not a defense.

Punishing the Guilty
 

You have a law enacted in the late 70s as part of the "CIA is bad and we should be good" house cleaning. I believe there were several restrictions put in place by Carter. Times change and the months after 9/11 were not a time where people in charge were prone to ignoring identifying a terrorist threat. The thing that came out today is that there needed to be some tie to al Queda for the green light to be given to eavesdropping. Do you really think most people would be bothered that we eavesdropped on suspected al queda conversations?

The thing that I don't get is why getting a warrent would be time delaying. Is this special court not able to grant the warrents immediately?

Punishing the Guilty
 

I'm hardly up to date on FISA, but my understanding from press reports is that the Gov't could seek permission retroactively if they had to act quickly.

It's also occurred to me that when the Administration deems those troublesome laws to be getting in the way of our security and all, what we really need is an obscure, mid-level, telegenic government official around which to rally. What's Ollie North doing these days?

Punishing the Guilty
 

Kind of like saying, we shouldn't address the social security problem because the medicare problem is worse. I feel your pain.

When I agree with the administration, I will defend it to the death. But when I disagree with them I won't. I am not trying to defend the administration here. And I am not trying to distract people from this issue. Knowing how much people hate this administration I don't think there is any fear of people forgetting about the issue.

I don't really know much about the wiretapping. At this point everyone is still in the dark.

However, I was just trying to point out that if they really did some nasty things there is no precedent for punishment. Thanks to the precedent set by the exclusionary rule, they could have tapped every phone in the United States and nothing will happen to them.