MAJOR UPDATE:

General Hayden spoke recently and provided information that is critical to the context of what I wrote below. What Hayden confirmed is all NSA activities were extensions of 1981 executive orders which confirms the Bush administration did not re-direct NSA’s surveillance, but directed it to send leads on US persons to the FBI for follow up. He also clearly points out we knew Atta and other 9-11 terrorists were in the US – but could not pass this on because they were ‘protected’ – whatever that means. In my mind that means the FISA court would refuse to entertain surveillance warrants because the leads originated with the NSA or DIA.

On January 23rd, General Michael Hayden spoke to the National Press Club in Washington, D.C.
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Hayden informed us that his office has been operating under an executive order (EO#12333 from 1981) that gave the NSA the tools it is currently using — meaning the NSA wasn’t suddenly unleashed to go marauding every American’s privacy by George W. Bush.
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“I [Hayden] testified in open session to the House Intel Committee in April of the year 2000. At the time, I created some looks of disbelief when I said that if Osama bin Laden crossed the bridge from Niagara Falls, Ontario to Niagara Falls, New York, there were provisions of U.S. law that would kick in, offer him protections and affect how NSA could now cover him.”
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He admits that we knew that Mohamed Atta and his crew were in the US. But he says that “we did not know anything more” because prior to 9/11 “Mohamed Atta and his fellow 18 hijackers would have been presumed to have been protected persons, U.S. persons, by NSA “.

As I mentioned before, the protected person status meant throwing away the lead and a suspension of monitoring. Hayden again (added for clarity):

NSA cannot — under the FISA statute, NSA cannot put someone on coverage and go ahead and play for 72 hours while it gets a note saying it was okay. All right?

This is one time I really wish I was not right. But it seems I am.

update: And this is what we will return to if Specter and Liberals get their way. No legislative efforts will make a FISA judge change their biased view of NSA intelligence.

UPDATE IV:

More on this at Shrinkwrapped.

END UPDATE

The Washington Post is documenting the full retreat of the Democrats on the NSA-FISA story. We have learned since the NY Times leaked this important program the following:

(1) Prior to 9-11 the NSA did not pass to the FBI/FISA leads to people in the US communicating with terrorists.

(2) The reason no leads were passed is the FISA Court would not provide warrants based on NSA intercepts from terrorists and their comrades here in the US.

Both [FISA Chief] judges had insisted that no information obtained this way [NSA intercepts] be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.

(3) It was not until 2002 that the Bush administration was able to work out agreement with the FISA Chief Justices to augment NSA leads with independent evidence from domestic law enforcement

So early in 2002, the wary court and government lawyers developed a compromise. Any case in which the government listened to someone’s calls without a warrant, and later developed information to seek a FISA warrant for that same suspect, was to be carefully “tagged” as having involved some NSA information.
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According to government officials familiar with the program, the presiding FISA judges insisted that information obtained through NSA surveillance not form the basis for obtaining a warrant and that, instead, independently gathered information provide the justification for FISA monitoring in such cases.

(4) Given the need to collect independent evidence of terrorists ties, the 72 hour warrant process is useless. It is possible in a case being built slowly – but when a new lead pops up there is no way to find independent evidence and collate it into a briefing to the FISA Court in 72 hours, including all the necessary signatures.

(5) Only one admitted terrorist is claiming civil rights issues regarding the NSA program.

(6) The administrations actions are based on Article II of the constitution, have precendence, and are further affirmed through the Authorization to Use Military Force (AUMF) Congress passed after 9-11 which the precedents did not have.

(7) The changes to process Bush’s administration enacted were not NSA spying on Americans (they were monitoring our enemies have they have been doing for decades) or that NSA was bypassing FISA (the reverse was true, NSA was finally passing leads to the FBI-FISA and FISA was balking).

It is not surprising the Democrats have finally surrendered and now openly admit that we need to track down leads here in the US uncovered by the NSA monitoring our enemies:

Two key Democrats yesterday called the NSA domestic surveillance program necessary for fighting terrorism but questioned whether President Bush had the legal authority to order it done without getting congressional approval.

Emphasis mine. The first part is critical – the second a joke. Bush made it work WITHOUT Congress. Now Congress is simply going to do a true-blue rubber stamp. This is the classic ‘me too, what he said’ surrender. And speaking of jokes

Rep. Jane Harman (Calif.), ranking Democrat on the House Permanent Select Committee on Intelligence, and former Senate majority leader Thomas A. Daschle (S.D.) said Republicans are trying to create a political issue over Democrats’ concern on the constitutional questions raised by the spying program.

The NY Times is now Republican? What is Walter Pincus smoking? What are the Dems smoking? The Bush administration (republicans) was hell bent on keeping this out of the news and out of the public arena! In fact, it was Democrats who cried foul and impeachment when the news broke – making a national security issue into a partisan issue.

At the briefings, Roberts said, “Those that did the briefing would say, ‘Do you have questions? Do you have concerns?’ ” Hoekstra said if Democrats thought Bush was violating the law, “it was their responsibility to use every tool possible to get the president to stop it.”

Of course not. Back then it was protect America. Now it is desperation to win votes. And if it was so wrong and so illegal, then why are they not calling for it to be shut down like the far left liberal base? What do these Democrats have to say now with Bush low in the polls and vulnerable to a sound attack based on bad acts by Bush

Daschle said he wants the program to continue but maintained that the warrantless wiretapping of calls that came into the United States or calls made overseas, even those involving suspected terrorist sources, violate the Foreign Intelligence Surveillance Act (FISA).
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Harman noted that the House and Senate intelligence committees were briefed last week on domestic wiretapping. “We’re only 36 members total that we’re talking about, and those members should decide whether this program fits within the law, and if it does, which I think it does, we should all declare victory. If it does not, then we should be changing the law or changing the program.”

So they say Bush was right, and if it is illegal (a big ‘if’) make it legal. Wow – what a surrender!

Linda Chavez explains it well in the Washington Times:

Which of these two alternatives will make America safer? The U.S. government will intercept communications from al Qaeda operatives overseas and their agents or enablers in the United States in the fastest, most efficient way possible, even if it means not obtaining a warrant beforehand.

Or, if the government wants to intercept phone calls or e-mails between al Qaeda operatives overseas and their agents or enablers on American soil, government lawyers will have to spend hours, days, perhaps even weeks compiling legal arguments and factual evidence of the kind and quality that would hold up in court should any of the parties ever later be charged with a crime in U.S. courts.

Liberals want the second option. America wants the first one.

UPDATE:

Blogs posting on this subject include Ed Morrissey, Dr Sanity, and Mac Ranger. More links as they come available.

UPDATE II:

There is another good post up on this at Stop The ACLU.