[Cboldt]

McCarthy's article is intellectually weak. The FISA judges are generally describing a principle of law, and are not commenting on the merits of any case. Their comment resembles the answers given by various nominees to SCOTUS (Roberts, Miers, ALito) when queried about judicial activism.

The FISA judges are concerned that a warrantless wiretap might be the sole basis for "probable cause" that justifies a warrant, which would amount to bootstrapping an possibly unconstitutional surveillance into a constitutional one. It's a valid concern, given SCOTUS precedent (See e.g., "Kieth").

The judges don't want perps going free on a technicality, and they also don't want to put their imprimatur on a process that violates the Constitution.

The solution is to get Congress on board with a stiffer surveillance law. That way, "we the people" will have signed up for the intrusion. Comparisons to WWII are approrpiate, I think. The powers granted by Congress there were sweeping, and included censoring of mail, etc.

[mewzilla]

McCarthy's article is intellectually weak.

I disagree. And I think the judges who leaked should be impeached.