[Clips] Abolish FISA

[R. A. Hettinga]

Again, friends. If you don't like this, don't write your congressman. Write
code.

Cheers,
RAH

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  Delivered-To: clips at philodox.com
  Date: Thu, 9 Feb 2006 13:09:36 -0500
  To: Philodox Clips List <clips at philodox.com>
  From: "R. A. Hettinga" <rah at shipwright.com>
  Subject: [Clips] Abolish FISA
  Reply-To: rah at philodox.com
  Sender: clips-bounces at 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.

  --
  -----------------
  R. A. Hettinga <mailto: rah at ibuc.com>
  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 <mailto: rah at ibuc.com>
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