[FairOpinion]

The ink on FISA was barely dry when the first president to order extrajudicial surveillance -- a Democrat -- did so. Jimmy Carter exercised his authority on May 23, 1979 with Executive Order #12139, seven months after signing FISA into law, declaring that "the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order," subject to the section's requirements. The order cites a FISA section helpfully titled "Electronic Surveillance Authorization Without Court Order."

The precedent was even more firmly established by President Clinton. Top Clinton administration officials are on record defending the practice. As Deputy Attorney General Jamie S. Gorelick testified before Congress in 1994: "The Department of Justice believes -- and the case law supports -- that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as he has done, delegate this authority to the attorney general." She remarked that: "It's important to understand that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."

From: Wiretaps for me, not thee?

[inquest]

That still doesn't answer the question about probable cause.