Tuesday, August 07, 2007

The dropping of eaves and the arrogance of judges 

Andy McCarthy says that the FISA court has unlawfully and dangerously overstepped its authority, and that the only genuine solution is to abolish it:

FISA has been blatantly violated, but the Left is not complaining because vindicating “the rule of law” has never been the purpose of its high-minded defense of FISA. It’s a game, and it has always, for every minute, been all about politics. If it doesn’t hurt Bush, who cares?

We should all care. The FISA court has conducted itself lawlessly since the 9/11 attacks and no one — not Congress, not the administration (at least since Attorney General Ashcroft stepped down) seems to give a hoot. Worried about the imperial presidency, are you? How about the imperial judiciary?

The FISA court scoffed at the Patriot Act after Congress enacted it expressly to dismantle the infamous “wall” — the impediment to intelligence sharing which quite likely prevented the FBI from thwarting the suicide hijackings that killed nearly 3,000 Americans. Yes, the Patriot Act was the subject of great debate. Yet, the one part of it about which there seemed to be genuine bipartisan consensus was the need to knock down the wall. No one would defend the indefensible. No one, that is, except the FISA court. The FISA judges, in breathtaking arrogance, did not merely defend it; they tried to re-erect it against the express, unambiguous direction of Congress. They were put back in their place only when overruled by the FISA Court of Review — the only decision that court has ever rendered (and the one the Left hates to talk about because it concedes that the president maintains constitutional authority to conduct warrantless searches).

Now, the FISA-court judges are at it again, violating statutes and making up their own surveillance regime as they go along — just like the president has been accused of doing. The only difference, of course, is that the president, who has constitutional duties to uphold and is accountable to American voters, fashioned an NSA program that was designed to protect American lives; the judges, who have no constitutional duty in this field and are insulated from the voters whose lives are at stake, somehow always manage to confer more rights on foreign enemies of the United States while leaving the American people more vulnerable.

FISA doesn’t need a fix. It needs a decent burial. Like the wall, it’s a bad idea that keeps proving itself to be a worse idea.

The first half of the essay is given over to construction of the Constitution. Well, there are many students of the Constitution among our august readership. What say you?


By Blogger Dawnfire82, at Tue Aug 07, 08:26:00 AM:

So not only is this secret court really a sinister cabal with their own tyrannical agenda, but they have an entire intelligence discipline at their command and the means to use it as they please?


Someone needs to school this person on the concept of 'separation of powers.' And maybe US Intelligence Community 301.  

By Blogger TigerHawk, at Tue Aug 07, 09:03:00 AM:

dawnfire -

I either do not understand your comment or you did not read all of McCarthy's essay. I think.  

By Blogger David M, at Tue Aug 07, 10:39:00 AM:

Trackbacked by The Thunder Run - Web Reconnaissance for 08/07/2007
A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.  

By Anonymous Anonymous, at Tue Aug 07, 04:07:00 PM:

It is interestring that one or more of these judges is getting so picky (mind you that is what they are supposed to do). My reason for saying this is that the judge who recently resigned from the FISA court in protest said, in support of why all requsts should be processed thru the court, said that he often approved warrants over the telephone.

If you want to be thorough how on earth could you approve a warrant over the telephon?  

By Anonymous Anonymous, at Tue Aug 07, 04:39:00 PM:

One can marvel at the divide in politics, but one clear example is this FISA court. Erich Lichtblau wrote today in a front page news-a-torial of his view that using eavesdropping as an intelligence tool is too "complicated" for Executive Branch people to understand, and they and we need a court mechanism to make sure they get it right. This is true, I guess, since the Times wants all these cases to end up in a U.S. court room someday and of course one would want the evidence to be of perfect provenance in that instance, after all. Illegally obtained wiretap evidence isn't much good in a courtroom.

All the rest of us just want to stop terror plots before they happen, and don't care if al Qaeda killers never see the inside of a courtroom.

This whole "we're worried about civil rights" stuff is BS: any evidence gained by eavesdropping on a U.S. citizen is going to be inadmissable in a courtroom, and moreover it'll be impossible to try a citizen (or anyone else, soon) in a militiary tribunal.

The Times owners and editors are agitating so appallingly to stop eavesdropping for only one reason only: They hate the Republican Executive Branch enough to hand over control of our government to an imperial judiciary willingly, even eagerly. The civil rights issue they trumpet is a strawman without any real practical significance, a political Potemkin village. Wasn't someone talking about manipulating the Constitution into a "political suicide pact"? Here you go. Geoff Stone, you can speak now...  

By Blogger Dawnfire82, at Tue Aug 07, 06:49:00 PM:

You're right, I only read the excerpted blurb this morning before driving off to work.

*dutifully reads whole article*

Wow, I fucked up that first impression. I'll go sit in the corner now, and think about not coming here before work anymore.  

By Blogger antithaca, at Tue Aug 07, 07:39:00 PM:

"any evidence gained by eavesdropping on a U.S. citizen is going to be inadmissable in a courtroom"

That's it isn't it? Can info gathered without a warrant even be used to get a warrant through FISA? I'm guessing not but, I'm no lawyer...

It all strikes me as very wrong-headed (the entire argument not the essay)...  

By Anonymous Anonymous, at Wed Aug 08, 12:55:00 AM:

The FISA courtis beginging to sound a lot like the 9th curcut court completly irresponsible and rediculous  

By Anonymous Anonymous, at Wed Aug 08, 09:50:00 PM:

That's it isn't it? Can info gathered without a warrant even be used to get a warrant through FISA? I'm guessing not but, I'm no lawyer...

We use information gathered from non-warrant eavesdropping all the time to obtain a FISA warrant. Most of the time, it's based off of intelligence gathered in a "completely foreign" situation that points to a person/situation where a FISA warrant would be required. Seven guys captured in Afghanistan who were all communicating with a "relative" in Georgia would be good evidence justifying a FISA warrant, for example.

I would think that intelligence gathered from the TSP would be used to justify a FISA warrant (I don't really know). Otherwise... what do you do with the "on US soil" part of the domestic-to-international communication? You can't just assume that only the international communications are the valuable ones.  

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