Some brief background: The Foreign Intelligence Security Act permits the government to monitor foreign communications, even if they are with U.S. citizens — 50 USC 1801, et seq. A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power.
The reason the President probably had to sign an executive order is that the Justice Department office that processes FISA requests, the Office of Intelligence Policy and Review (OIPR), can take over 6 months to get a standard FISA request approved. It can become extremely bureaucratic, depending on who is handling the request. His executive order is not contrary to FISA if he believed, as he clearly did, that he needed to act quickly. The president has constitutional powers, too.
It’s also clear from the Times piece that Rockefeller knew about the government’s eavesdropping, as did the FISA court. By the time this story is fully fleshed out, we’ll learn that many others knew about it, too. To the best of my knowledge, Rockefeller didn’t take any steps to stop the eavesdropping. And he’s no friend of this administration. Nor is he above using intelligence for political purposes, as his now infamous memorandum demonstrates.
But these leaks — about secret prisons in Europe, CIA front companies, and now secret wiretaps, are egregious violations of law and extremely detrimental to our national security. They are far worse than any aspect of the Plame matter. The question is whether our government is capable of tracking down these perpetrators and punishing them, or will we continue to allow the Times and Washington Post determine national security policy. And if these wiretaps are violative of our civil liberties, it’s curious that the Times would wait a year to report about it. I cannot remember the last time, or first time, this newspaper reported a leak that was helpful to our war effort.