Gentlefolk,
Let us not make the mistake of assuming that all Federal wiretaps require warrants. That is false. The
Foreign Intelligence Surveillance Act, is unambiguous: "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year...". This legislation was passed in 1978, and revised over the years by the Legislature (Congress) for use by the Executive (Administration) and has repeatedly passed the constitutional test by the Judiciary.
Good electronic intelligence (in this instance wiretapping), can be, as the Justice Department lawyers correctly pointed out, very important to covert operations such as combating terrorist organizations. Securing useful information about the plans of enemy operations increases the likelihood of a successful defense. The utility of information from warrantless wiretaps on U.S. citizens by the Federal government must be very high indeed to avoid running up against the Constitution.
The case seems straightforward.
The F.I.S.A. empowers the Executive to wiretap if the “Attorney General certifies in writing under oath that . . . there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party”
What the judge took exception to is that this legislation was used to justify an eavesdropping program which included U.S. citizens during a period when the U.S. was not at war.
For those who, like me, are most comfortable with the democratic model of government, a program of surveillance which includes U.S. citizens should involve more than just the executive branch. It is good to learn that the Federal Judiciary agrees.