Want A Good Reason For Bush To Cooperate With Congress? Here’s One
Our good friend dmac alerted me to this editorial in the WSJ today painting the NSA controversy as a naked power grab by Congress:
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.
I agree with that…to a point.
The journal makes the case that Bush shouldn’t cave in and submit the program to the FISA court for approval, since that would give too much national security responsibility to the judiciary. That may or may not be a valid point, I haven’t really had time to digest.
I do think, however, that we should cooperate in crafting new legislation of some sort, because the gray area that the program currently resides in, legally, means we’ll continue to see stories of this kind otherwise:
Twice in the past four years, a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush’s eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.
The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly — who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.
The two heads of the Foreign Intelligence Surveillance Court were the only judges in the country briefed by the administration on Bush’s program. The president’s secret order, issued sometime after the Sept. 11, 2001, attacks, allows the National Security Agency to monitor telephone calls and e-mails between people in the United States and contacts overseas.
I argued earlier that the NSA controversy was a sign the system was working, and I meant it. This sort of give-and-take is healthy, to a point (and I also acknowledge that we’d have been much better off if it didn’t take a potentially dangerous leak from the NY Times to start the dialogue).
The debate becomes far too ‘real-world’, though, when convictions of very dangerous people are thrown into doubt. If for no other reason than that (and of course, there are other reasons), we need to put aside partisanship and decide what we’re going to do about this apparently (at least somewhat) successful new technique…
Admin briefs Congress on NSA surveillance (PM UPDATE)
Via the WaPo:
Responding to congressional pressure from both parties, the White House agreed yesterday to give lawmakers more information about its domestic surveillance program, although the briefings remain highly classified and limited in scope.
…
You can poke as many holes in the WSJ editorial as you like:
Passed in the wake of the infamous Church hearings
(what is infamous about them?)
on the CIA, FISA is an artifact of post-Vietnam and post-Watergate hostility to executive power.
(the WSJ dismisses FISA without any justification – it’s an artifact, it’s hostile – without saying why the act is wrong or unnecessary)
But even as Jimmy Carter signed it for political reasons,
(another ad hominem: the act can’t be right, because Carter signed it for political reasons – how would they know? – did they criticize the Medicare entitlement program because Bush “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.
(no court contradicted it because it has not been adjudicated — no court confirmed it, either)
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.
(so is violation of the law. So there should be no restraints on executive power because public disapproval is all the deterrent we need?)
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.
(no, but they did give them the authority to issue warrants – also, their job is not to strike any balance, it is to determine probably cause)
Far from being some rogue operation, the Bush Administration has taken enormous pains to make sure the NSA wiretaps are both legal and limited.
(apparently the “enormous pains” didn’t include getting the warrants which were required by law – how does the Journal get away with blithely saying they were legal when the adminstration’s actions violated the law? – and of course they were limited, because they could not be infinite)
The program is monitored by lawyers, reauthorized every 45 days by the President
(and foxes are good guards of hen-houses)
and has been discussed with both Congress
(a very limited number of Congressmen, some of whom objected)
and the FISA court itself.
(that’s why the FISA judge said he knew nothing of the warrantless wiretaps and resigned?)
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.
(why didn’t they get the warrants? the FBI wiretaps people all of the time, but they get warrants first)
Any attempt to expand FISA would be the largest assault on Presidential power since the 1970s.
(and the circumvention of FISA is a direct assault on the powers the Constitution specifically granted to Congress to determine the rules for the army and navy)
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
(it’s not passing the buck – the judiciary is the body of government which is charged with issuing warrants)
and further limiting the President’s ability to defend America.
(if FISA truly limits the President’s ability to defend America, then Congress would change it in a heartbeat)
Far from expanding FISA, Congress could best serve the country by abolishing it.
(Based on the logic above? I don’t think so).
[...] I briefly covered the story in the Washington Post yesterday about the two judges who told the administration they would not issue warrants based on information obtained from the NSA program that we’ve heard so much about of late. That story has indeed fired up many on the right – but not for the reason that the author intended. [...]