[IP] Abolish FISA
-------- Original Message --------
Subject: Abolish FISA
Date: Thu, 09 Feb 2006 06:56:45 -0500
From: Atkinson, Robert <rca53@xxxxxxxxxxxx>
To: dave@xxxxxxxxxx
Dave:
The item below is from the lead editorial in today’s Wall Street
Journal. I’m sure many will disagree but it will be interesting to see
if any member of Congress proposes a bill to abolish FISA as a counter
to any bills that seek to expand it. That will present Congress with a
very difficult election year dilemma.
Bob
Abolish FISA
/February 9, 2006; Page A12/
Whatever happened to "impeachment"? …
…the polls show that a majority of Americans want their government to
eavesdrop on al Qaeda suspects, even -- or should we say, especially --
if they're talking to one of their dupes or sympathizers here in the U.S.
In short, the larger political battle over wiretaps is over, and the
President has won the argument among the American people.
** * **
… Judging by Monday's hearing, Senators of both parties are still hoping
to stage a Congressional raid on Presidential war powers. And they hope
to do it not by accepting more responsibility themselves but by handing
more power to unelected judges to do the job for them…
But note well that the Members aren't talking about sharing
responsibility themselves for wiretap decisions. That they want no part
of. The leadership and Intelligence Committee chairs were already
briefed numerous times on the NSA program, only to have several of them
deny all responsibility when the story was leaked…
What FISA boils down to is an attempt to further put the executive under
the thumb of the judiciary, and in unconstitutional fashion. The way
FISA works is that it gives a single judge the ability to overrule the
considered judgment of the entire executive branch…
As a practical war-fighting matter, this interferes with the ability to
gather intelligence against anonymous, al Qaeda-linked phone numbers…
We already know FISA impeded intelligence gathering before 9/11. It was
the reason FBI agents decided not to tap the computer of alleged 20th
hijacker Zacarias Moussaoui. And it contributed to the NSA's decision
not to listen to foreign calls to actual hijacker Khalid al-Midhar,
despite knowing that an al Qaeda associate by that name was in the
country. The NSA feared being accused of "domestic spying."
** * **
Passed in the wake of the infamous Church hearings on the CIA, FISA is
an artifact of post-Vietnam and post-Watergate hostility to executive
power. But even as Jimmy Carter signed it for political reasons, his own
Attorney General declared that it didn't supercede executive powers
under Article I of the Constitution. Every President since has agreed
with that view, and no court has contradicted it.
As federal judge and former Deputy Attorney General Laurence Silberman
explained in his 1978 testimony on FISA, the President is accountable to
the voters if he abuses surveillance power. Fear of exposure or
political damage are powerful disincentives to going too far. But
judges, who are not politically accountable, have no similar incentives
to strike the right balance between intelligence needs and civilian
privacy. This is one reason the Founders gave the judiciary no such
plenary powers.
Far from being some rogue operation, the Bush Administration has taken
enormous pains to make sure the NSA wiretaps are both legal and limited.
The program is monitored by lawyers, reauthorized every 45 days by the
President and has been discussed with both Congress and the FISA court
itself. The Administration even decided against warrantless wiretaps on
al Qaeda suspects communicating entirely within the U.S., though we'd
argue that that too would be both constitutional and prudent.
Any attempt to expand FISA would be the largest assault on Presidential
power since the 1970s. Congress has every right to scrutinize the NSA
program and cut off funds if it wants to. But it shouldn't take the
politically easy route of passing the buck to the judiciary and further
limiting the President's ability to defend America. Far from expanding
FISA, Congress could best serve the country by abolishing it.
-------------------------------------
You are subscribed as roessler@xxxxxxxxxxxxxxxxxx
To manage your subscription, go to
http://v2.listbox.com/member/?listname=ip
Archives at: http://www.interesting-people.org/archives/interesting-people/