Thursday, February 09, 2006


Read an interesting article in the Opinion Journal this morning... this is an astute, rational assessment of the situation.

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.

The rest of the article has multiple good points as well
  • FISA warrants [..] are supposed to require "probable cause" that the subject is an agent of a foreign power. [..] Deputy National Intelligence Director Michael Hayden explained [..] 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." [this requires a] different "reasonable basis" standard.
  • 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.
  • 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.
  • it contributed to the NSA's decision not to listen to foreign calls to actual hijacker Khalid al-Midhar
  • former Deputy Attorney General Laurence Silberman explained in his 1978 testimony on FISA [that] the President is accountable to the voters if he abuses surveillance power. [..]But judges, who are not politically accountable, have no similar incentives to strike the right balance between intelligence needs and civilian privacy.
Very good article.

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