Again, friends. If you don't like this, don't write your congressman. Write
code.
Cheers,
RAH
--- begin forwarded text
Delivered-To: clips@philodox.com
Date: Thu, 9 Feb 2006 13:09:36 -0500
To: Philodox Clips List
From: "R. A. Hettinga"
Subject: [Clips] Abolish FISA
Reply-To: rah@philodox.com
Sender: clips-bounces@philodox.com
http://online.wsj.com/article_print/SB113945236921469126.html
The Wall Street Journal
February 9, 2006
REVIEW & OUTLOOK
Abolish FISA
February 9, 2006; Page A12
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.
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R. A. Hettinga
The Internet Bearer Underwriting Corporation http://www.ibuc.com/
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'
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R. A. Hettinga
The Internet Bearer Underwriting Corporation http://www.ibuc.com/
44 Farquhar Street, Boston, MA 02131 USA
"When the hares made speeches in the assembly and demanded that all should
have equality, the lions replied, "Where are your claws and teeth?" --
attributed to Antisthenes in Aristotle, 'Politics', 3.7.2