Yesterday, Gen. Michael Hayden, currently head of the National Security Agency and President Bush's nominee to head the CIA, talked with members of of the House and Senate Intelligence Committees on topics related to his nomination. One of the topics, reports McNews, was the legality of the NSA's warrantless wiretapping program, both foreign and domestic:

Air Force Gen. Michael Hayden told the Senate Intelligence Committee that the National Security Agency (NSA) eavesdrops without warrants only on the phone calls or e-mails of terrorism suspects. He said officials use a "probable cause" standard that makes it unlikely that ordinary Americans would be targeted.

Wrong! "Probable cause" only applies in a court of law -- which the administration did not go to in order to get the warrants required to wiretap. Federal judges are supposed to be making the determination as to what is or is not "probable cause," but in the case of the NSA wiretapping program, FBI officials -- who have no authority to do such things -- are making those determinations.

At the risk of being redundant, I will continue to repeat myself. 50 U.S.C. 1801 et seq. is quite clear about warrants: It requires officials to obtain a warrant before engaging in foreign intelligence surveillance in this country. The Bush Administration has, by its own acknowledgments, engaged in foreign intelligence surveillance without obtaining the necessary warrants. I think we can all agree that the means that the Bush Administration has broken the law.

As to domestic surveillance and NSA's collusion with AT&T, the Fourth Amendment -- which, last I heard, was still in force -- requires that a warrant be issued upon probable cause in order to engage in search and/or seizure. A warrant can only be issued by a judge, and to the knowledge of the American people, no judges were consulted when the NSA decided it wanted to invade the privacy of "United States persons," something that is prohibited under the Foreign Intelligence Surveillance Act. There is no alternate Fourth Amendment for use in times of war; there is no crazy provision that gives the president brand-new powers during a time of war. The Constitution is the Constitution in war or peace, and regardless of the current climate of the country or whether or not we're living in "a post-9/11 world," civil liberties remain the same. This means that the government cannot engage in "search and seizure" without a warrant issued by a judge. The Bush Administration did not get warrants from judges; therefore, it has broken the law again.

Furthermore, 47 U.S.C 22 prohibits a "common carrier" (a telephone company, in this case) from disclosing consumer information "except as required by law." When does law require the disclosure of consumer information? For that, we have to visit 47 U.S.C. 1007, which requires the disclosure when "alternative technologies or capabilities or the facilities of another carrier are not reasonably available to law enforcement for implementing the interception of communications or access to call-identifying information." First of all, the Bush administration never went to a court, so its domestic wiretapping program is illegal on its face in that regard. Second, any reasonable court would find that there are extant alternatives to asking the phone company for the information, and as such, the phone company would not be required to disclose customer information. Thus, AT&T has also broken the law by providing information to the government without a court order.

How Gen. Hayden can say -- in front of Congress and under oath -- that the program is "legal" is something that baffles me beyond comprehension. What's more baffling is that he will not be punished and the administration will not be punished, since the Congress is Republican-controlled and will not allow censures or impeachment or even hearings under oath about this or any other issue that may cast the administration in a bad light. Why's that? Because they value their jobs: if they vote in favor of anything that could harm the administration, Karl Rove will have a puppet candidate up for election in their home district and dirty rumors spread about them faster than you can say, "John McCain adopted a black baby."