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It is quite possible that the Bushies avoided the FISA mechanism because they were not asking for wiretaps on specific US citizens. They were initiating vast NSA data mining on entire communications flows. This is something the FISA court would have had a big problem with as it flies in the face of probable cause.
If the Bushies came back to the FISA court and said that they found a suspicious conversation or e-mail and wanted a specific FISA warrant after monitoring all communications traffic coming in and out of the United States, the court would have laughed at them. They also probably would have demanded that such tactics cease immediately, or at least be authorized by Congress. (It is essentially the definition of violating the 4th amendment.) This would have caused great embarrassment for the 2002 midterms and would have been a cudgel for the Dems in the 2004 presidential race.
So the Bushies can't tell the FISA court, yet still believe that in their "responsibility to protect Americans," they are fully justified in advanced NSA data mining of US and non-US citizens alike. If they get caught, well, it is easier to ask for forgiveness than permission. They feel that they can terrify the US public at will, with full cooperation from a sensationalist media. This always leaves them the "protect America" excuse. As a side benefit, if caught, they guarantee a constitutional showdown (with a toadying Congress) over the imperial power of the presidency in time of "war."
This is why Snotty keeps using the word "detect" in the press briefings. A wide data mining net is cast for "detection", to allow closer monitoring of specific traffic after data analysis.
In other words, they spied on everyone, not just the "terraists". And they will claim executive privilege and wartime powers in doing so.
It's good to be king.
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