Thursday, January 15, 2009
Well, well. Last summer, the FISA court secretly upheld the constitutionality of the NSA's "warrantless surveillance" program, just as anti-jihadist hawks -- and the Bush administration -- long said ought to happen. The decision was released today, and it provides a measure of vindication for the evil cabal that supposedly shredded the Constitution (as if it had nothing better to do). There is a round-up of blog reactions here, including hairsplitting hopes from the left that the opinion does not actually say that the president can do it without Congressional authorization.
Of course, the publication of the decision is timed perfectly from Barack Obama's perspective. It came too late to help John McCain, but just in time to give President Obama the latitude he will almost certainly conclude is necessary to protect the country from transnational terrorism. Better late than never.
Good. From what I understand, the Mumbai terrorists communications were intercepted, recorded and tracked by US agents in real-time in coordination with India, despite their attempts to encrypt and hide the phone calls. This could have never happened if we had waited on a FISA warrant, and hopefully will result in a few more dead terrorist planners.
Now wouldn't it be just like a woman to point out that I said "I told you (not you, TH, but "you", generically) so back in 2005? :p
Well, I am a woman.
Added irony grace note: wasn't it the lefties who touted the line that it was the courts that stood between us and the awful tyranny of a Booosh 4th Reich? And now the courts have spoken... and they are already calling for Obama to "overturn" this "unconstitutional" ruling :p
Bwa ha ha ha ha!!!!
Orin Kerr was right. All it takes is an election to turn former opponents of executive power and strict constructionism into their strongest adherents.
It is to laugh.
The notable part of Bush's program was that it was conducted in violation of statute. This opinion doesn't address that conduct, but only rules on the statute passed by Congress to make legal his previously illegal program.
In short, the court doesn't vindicate Bush; it just tells us that Congress can permit warrantless spying for national security purposes.
It seems there is argument on that point Anon 11:51. The Corner post TH links makes just the opposite point in their lede:
"The New York Times reports that the Foreign Intelligence Surveillance Court of Review — the specialized federal appeals court created by the 1978 FISA statute to rule on questions involving national security surveillance — has reaffirmed that the President of the United States has inherent constitutional authority to monitor international communications without court permission."
The argument at the root seems to be whether or not the President has certain authority that the legislature cannot limit by statute, only by initiating amendment to the Constitution and persuading enough state legislatures to back them up.