Upon an application made pursuant to section 1804 of this title, the judge shall enter an ex parte order as requested or as modified approving the electronic surveillance if he finds that (1) the President has authorized the Attorney General to approve applications for electronic surveillance for foreign intelligence information; (2) the application has been made by a Federal officer and approved by the Attorney General; (3) on the basis of the facts submitted by the applicant there is probable cause to believe that—

(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States . . .

(Emphasis supplied.) There are two points here. First, it seems hard to believe that Saban's activities, especially those calling for clemency for the AIPAC associated persons accused of spying for Israel, were not protected by the First Amendment.

The second point is that the approval of the Attorney General was required for this surveillance. What would have been Gonzales' basis for approving surveillance of Haim Saban, if indeed he was the person being wiretapped? It seems to me difficult to believe that his hefty contributions to Democrats did not enter into Gonzales' calculus. I suppose it is possible that the initial wiretapping request of Saban commenced during the Attorney General tenure of John Ashcroft - which ended after the 2004 election. But FISA placed a 90 day duration limit on such orders at the time and eventually Gonzales himself would have to request subsequent orders from the FISA court.

One other note on this --the story provides an account where Rep. Harman agreed to lobby for clemency for the AIPAC related persons accused of revealing classified information in exchange for lobbying of soon to be Speaker Nancy Pelosi to name Harman as head of the House Intelligence Committee. Further, the report places Gonzales' intervention squelching an investigation of Harman at the eve of the publishing of the NY Times story on the Bush Administration's warrantless wiretapping, which occurred in December 2005. It seems impossible that approval of the wiretapping requests were not before Gonzales in 2005.

Noting the above, the strange thing is Gonzales is accused of intervening to stop the investigation of Harman:

Contrary to reports that the Harman investigation was dropped for “lack of evidence,” it was Alberto R. Gonzales, President Bush’s top counsel and then attorney general, who intervened to stop the Harman probe. Why? Because, according to three top former national security officials, Gonzales wanted Harman to be able to help defend the administration’s warrantless wiretapping program, which was about break in The New York Times and engulf the White House.

The argument is Gonzales only became concerned about the fallout from warrantless wiretapping on the eve of the New York Times publishing its story, even though the Times had been sitting on the story for a year (something Gonzales knew about.) This is entirely plausible - Gonzales proved himself to be not only a Bush lackey and entirely unethical, but also a complete dolt.

Of course if Marcy is right and it was Naor Gilon, this concern is rendered moot.

I think I understand the satisfaction some feel for seeing wiretapping turned on one of its staunchest defenders, Harman. And certainly Republicans will see merit in the wiretapping. Both of these impulses must be checked.

Whatever Harman's view of the gutting of FISA, abuse of the national security apparatus should be a concern to us all. I do not imagine Republicans would be thrilled to see the renewed politicization of the national security apparatus now that Obama is President, particularly with regard to domestic surveillance. Their reaction to the DHS report on right wing extremism should give them pause before cheering this thing on.

As for Democrats and civil libertarians, I would hope the underlying principles involved would check the shadenfreude.

Speaking for me only