Liberty Belle
Well-known member
Abolish FISA
A Congressional power grab, using judges as a cudgel.
Thursday, February 9, 2006
Whatever happened to "impeachment"? Only two months ago, that was the word on leading Democratic lips as they assailed President Bush for "illegal" warrantless NSA wiretaps against al Qaeda suspects. But at Monday's Senate hearing on the issue, the idea never even made an appearance.
The reason isn't because liberal critics have come to some epiphany about the necessity of executive discretion in wartime. The reason is they can read the opinion polls. And 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. We hope Dan Bartlett, Steve Hadley and other White House message-makers notice the difference between this outcome, on a matter on which they bothered to fight, and so many other controversies when they ceded the field to their opponents ("torture," Joe Wilson).
All the more so because the policy debate over Presidential authority continues, and on a dangerous path. 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.
The preferred vehicle here is an expansion of the 1978 Foreign Intelligence Surveillance Act, or FISA, the Carter-era law that imposed judicial consent for domestic wiretaps during the Cold War. "If you believe you need new laws, then come and tell us," Senate Democrat Pat Leahy told Attorney General Alberto Gonzales during Monday's hearing. Chairman Arlen Specter and Members in both parties seemed to be saying, "We're from Congress and we're here to help you."
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. Intelligence Vice Chairman Senator Jay Rockefeller (D., W.Va.) even wrote his own not-my-fault letter that he kept secret until the story broke, when he released it in order to embarrass the Bush Administration. The real message of this episode is: "We're from Congress and we're here to second-guess you."
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. In the case of the NSA wiretaps, the Justice Department, NSA and White House are all involved in establishing and reviewing these wiretaps. Yet if a warrant were required, one judge would have the discretion to deny any request.
As a practical war-fighting matter, this interferes with the ability to gather intelligence against anonymous, al Qaeda-linked phone numbers. FISA warrants apply to people, and are supposed to require "probable cause" that the subject is an agent of a foreign power. But as Mr. Gonzales and Deputy National Intelligence Director Michael Hayden explained Monday, in fast-moving anti-terror operations it's often impossible to know if someone on the U.S. end of an al Qaeda phone call is actually an "agent." That means the government must operate on a different "reasonable basis" standard.
FISA is the intelligence equivalent of asking battlefield commanders in Iraq to get a court order before taking Fallujah. "We can't afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive al Qaeda operatives in real time," as Mr. Gonzales put it.
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.
WALL STREET JOURNAL
http://www.opinionjournal.com/editorial/feature.html?id=110007940
A Congressional power grab, using judges as a cudgel.
Thursday, February 9, 2006
Whatever happened to "impeachment"? Only two months ago, that was the word on leading Democratic lips as they assailed President Bush for "illegal" warrantless NSA wiretaps against al Qaeda suspects. But at Monday's Senate hearing on the issue, the idea never even made an appearance.
The reason isn't because liberal critics have come to some epiphany about the necessity of executive discretion in wartime. The reason is they can read the opinion polls. And 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. We hope Dan Bartlett, Steve Hadley and other White House message-makers notice the difference between this outcome, on a matter on which they bothered to fight, and so many other controversies when they ceded the field to their opponents ("torture," Joe Wilson).
All the more so because the policy debate over Presidential authority continues, and on a dangerous path. 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.
The preferred vehicle here is an expansion of the 1978 Foreign Intelligence Surveillance Act, or FISA, the Carter-era law that imposed judicial consent for domestic wiretaps during the Cold War. "If you believe you need new laws, then come and tell us," Senate Democrat Pat Leahy told Attorney General Alberto Gonzales during Monday's hearing. Chairman Arlen Specter and Members in both parties seemed to be saying, "We're from Congress and we're here to help you."
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. Intelligence Vice Chairman Senator Jay Rockefeller (D., W.Va.) even wrote his own not-my-fault letter that he kept secret until the story broke, when he released it in order to embarrass the Bush Administration. The real message of this episode is: "We're from Congress and we're here to second-guess you."
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. In the case of the NSA wiretaps, the Justice Department, NSA and White House are all involved in establishing and reviewing these wiretaps. Yet if a warrant were required, one judge would have the discretion to deny any request.
As a practical war-fighting matter, this interferes with the ability to gather intelligence against anonymous, al Qaeda-linked phone numbers. FISA warrants apply to people, and are supposed to require "probable cause" that the subject is an agent of a foreign power. But as Mr. Gonzales and Deputy National Intelligence Director Michael Hayden explained Monday, in fast-moving anti-terror operations it's often impossible to know if someone on the U.S. end of an al Qaeda phone call is actually an "agent." That means the government must operate on a different "reasonable basis" standard.
FISA is the intelligence equivalent of asking battlefield commanders in Iraq to get a court order before taking Fallujah. "We can't afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive al Qaeda operatives in real time," as Mr. Gonzales put it.
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.
WALL STREET JOURNAL
http://www.opinionjournal.com/editorial/feature.html?id=110007940
