A few thoughts on this and the recent item in the WashingtonPost, and of course Arkin’s blog response.

The issue of NSA wiretapping is not based on the act itself, but the allowance, or permission, of the act. I doubt there’s a single American who has ever watched TV or seen a crime movie that thinks the FBI does not tap phone conversations (what many Americans do not realize is Caller ID block is not effective when calling 800-numbers). The core and central issue in the NSA wiretapping issue is whether specific permission is required to wiretap. The FISA allowance for after the fact permission is generous and broad. The number of requests the FISA court rejected is for all intents and purposes, nil. The warnings the NSA gave about the legality is important to keep in mind as they recognized the issue the Administration tossed aside. Also potentially explosive here is the wiretapping may have started BEFORE 9/11 for reasons completely outside of CT (counter-terrorism).

Referencing acts such as the Communications
Assistance for Law Enforcement Act, which requires the creation and
maintenance of sockets for monitoring technologies to plug into, is not pertinent to this conversation since it a technical allowance for the process to wiretap.

Hayden’s comments are enlightening, specifically

"The attorney general’s
standard for approving FISA coverage is a body of evidence equal to
that which he would present to the court. So it’s not like you can
throw it on for 72 hours." In this, General Hayden is shifting the
blame to the AG. The FISA does not require evidence equal to "that
which he would present to the court." [emphasis added]

Why does one request a warrant?
To seek evidence to go to court and convict. The WashingtonPost article, however, bows to the Administration with this conclusion:

And although the law allows emergency surveillance or searches for 72 hours, Hayden suggested that still would require too much evidence to proceed in many cases.

"Too much evidence" is a self-imposed prereq and not a burden placed by FISA. The arguments given by AG Gonzales are further circumspect when he cites situations of declared war (there has not been a formal declaration of war, civil society is not in a state of war) before FISA. As the NYT relays the AG’s message, the country’s:

"long tradition of wartime enemy surveillance," often without warrants, was seen in numerous historical precedents, including George Washington’s interception of mail between the British and Americans, telegraph wiretapping in the Civil War, Woodrow Wilson’s order in World War I to intercept cable communications between Europe and the United States and Franklin Roosevelt’s order after the bombing of Pearl Harbor to intercept all communications traffic into and out of the United States.

Note the recent CRS report "suggesting that Congress never intended to give the president power to order wiretaps without a warrant."

Also reread Hayden when he said

"We have aggressively used FISA
warrants, but the revolution in telecommunications technology has
extended the actual impact of the FISA regime far beyond what Congress
could ever have anticipated in 1978."

This is belief that FISA is out of date suggests something should be fixed. I have not heard
of any such proactive (or reactive) suggestion from the White House. Considering the flexibility of law the Administration has requested in general, did the bright OLC minds consider requesting some form of "blanket warrant" with periodic updates to the FISA Court? Something to keep the judiciary in the loop. I have not heard such a thing was attempted nor, in my opinion, was it even desired. The understanding that
Echelon etc were giant nets, gathering all sorts of ELINT, useful and
not, was well known and part of the Transitional Briefing of 2000. In
fact, it was well known inside and outside the government as a whole.

This does return us to the point of a unitary executive this
Administration firmly believes in. It does not see itself reportable to
Congress or the Judiciary. Monitor the conversations about "activist"
judges and "strict constructionists" from the White House. Are we in a
state of war? Will a "state or war" in the classical sense ever exist
again? I believe that is an unfortunate yes, but we’re not in it now.
The White House has gone to significant lengths to keep the impact of
"war" hidden from public view and from impacting the public. This
Administration holds the Jeffersonian view that we are all simpletons
who need to be guided. Bush clearly sees us as his flock (religious
connotation intentional).

Is the wiretapping legal? In my opinion, no. I am relying on the
intent and purpose of FISA and the intent and purpose of the Fourth
Amendment, but I am not a legal scholar. I also consider the priorities of this Administration as they have demonstrated and stated over the past several years.

My confidence in our intelligence services is high. My confidence in the management and direction of them is low. I believe it is the top-down pressures that has led to low morale in these branches, not as the Administration would lead you to believe, external (i.e. media) pressures. What has been the cause of the problems? Remember what the media picks up and carries to the headlines and holds on the headlines? To sustain a headline, there must be dissension in the ranks of the government. The media spotlight on NSA wiretapping is not because of Eric Lichtblau or James Risen. It is because government officials, including the CIA ("Recent events indicate that the CIA might even be willing to compromise the effectiveness of its own covert operations, if by doing so it can damage the Bush administration"), continue to provide fodder. Indexing by the press is what keeps the story rolling.