More on FISA
Pretty good discussion over at Lean Left in the comments section about FISA. (once you get past the troll and me calling the troll a troll). My thinking is that Bush really stepped in it this time. FISA is pretty clear regarding wiretaps of communications involving US Persons and that said taps require warrants. Granted, those warrants can, in some circumstances, be obtained after the fact.
As Tom said:
At issue here is who gets to decide whether or not FISA is constitutional. Answer: Not the president. So the argument has to be either that Bush broke the law in violating FISA, or that FISA as written doesn’t apply to what Bush did anyway, therefore what he did was allowable irrespective of the constitutionality of FISA. It cannot be that because FISA is (probably) unconstitutional, it can simply be ignored by the executive branch.
Bush could have gone through the steps to properly obtain warrants without much trouble. He didn’t because it was inconvenient politically and practically. If nothing else, it indicates laziness. Triggerfinger says:
To deliberately evade the requirements of the law is to place yourself above it; and such a deliberate choice requires a response both swift and firm.
To do so over a mere 179 modified requests (plus two denied) from a total of 5645 is to demonstrate an outright contempt for the checks and balances necessary in a free society.
I have my doubts as to whether the “enemy press” has accurately identified the whole story. But if it has, the President has crossed the line.
Further thoughts: I don’t think said searches are inherently unconstitutional because they are reasonable in given circumstances. Said searches do, I think, violate FISA which was established to balance security needs with liberties.
And, barring any new info on the subject, I’m mostly done talking about it for now.
December 29th, 2005 at 10:24 am
It is a pretty good discussion, if you want it free of facts. FISA was passed in the 70’s. Court cases since then have proven that the CiC has the power for warrantless searches. The question isn’t whether or not it involves citizens. The question is whether or not it involves foreign agents. In this case, the CiC determined that a warrantless search is supported by legal precedent. Since the legal precedent regarding FISA has come out since FISA was signed, it has control.
I don’t understand whether this is willful misinterpretation on the part of the left to make this an issue, or whether they are unintentionally misinterpreting it because they are in the “We Hate BUSH” cloud.
The legislation is not the controlling authority. The court precedent is.
December 29th, 2005 at 10:35 am
As yet, no one has shown me the appropriate court precedent. CY tried in comments but said precedent pre-dated FISA by 6 years and, therefore, isn’t applicable. The JD doesn’t get to peice together a bunch of court precedents and dictate how that applies to FISA. That’s up to a court. Bush has stepped in it this time and it needs to be investigated and brought before a court.
And, for the record, we have not declared war so I’m not buying the war time powers argument.
December 29th, 2005 at 11:29 am
Did the link on the 2002 court decision not convince you?
December 29th, 2005 at 11:46 am
There are many problems with the ruling but most glaring is that it relies on Truong, which was before FISA was enacted.
December 29th, 2005 at 12:04 pm
But what is your verdict? The court case may have problems, but did Bush break the law?
More links:
http://www.washingtontimes.com/commentary/20051228-095455-1015r.htm
December 29th, 2005 at 12:07 pm
I gave my verdict up above:
December 29th, 2005 at 12:28 pm
In the sense that FISA lays out a procedure the president can follow to fast-track warrants, the president didn’t follow the FISA procedure. The question in my mind was: was the president required to follow FISA, and if so, is there a prosecutable offense by not following FISA. The answer according to the 2002 case, and from many legal scholars is apparently not.
The answer according to previous administrations, previous AGs, and most legal scholars is that there is really no prosecutable offense here. I agree, as I post on my blog today, that you are holding a line I like. You are for limiting government. In this specific case, however, the questions are:
1. Is the president in a prosecutable violation?
2. Is the president in the wrong?
3. Is the president expanding government powers?
4. Is the president violating protections?
5. Is the president exceeding his power?
etc, etc, etc. I agree with you on principle that the president did not follow the FISA procedure. I agree with you that warrantless searches of Americans is generally not a good thing. I do not agree that he stepped in it. This isn’t like telling fibs about sex under oath. The legal area of confusion will have to be mapped out.
December 29th, 2005 at 3:08 pm
JJ:
You’re ignoring the fact that the 2002 case explicitly left unanswered the question of whether or not FISA changed the powers of the CiC. IOW, it simply ruled that before FISA, the president had such powers, and didn’t address whether FISA changed that equation. So the 2002 ruling is not the slam-dunk you seem to think it is.
Once again, it comes down to the what I said in the comment Uncle excerpted.
December 29th, 2005 at 3:43 pm
tgirsch, let’s define this in terms more near and dear to your heathen (HEEEEETHEERRRRNNNN) little heart.
When Clinton was president, after the passing of FISA, he used a warrantless search to capture Aldrich Ames. He believed he had the power, as the head of the Executive Branch, to do this. He didn’t notify a FISA court. He didn’t notify anyone. He didn’t ask for an after-the-fact notification.
If you are an upright kind of guy, you’ll be calling for all evidence on Aldrich Ames to be thrown out. And calling for an investigation into Clinton’s doings.
With this said, Carter, Reagan, Bush(41), Clinton, and Bush(43) all believed they held the power to conduct warrantless searches, without the 72 hour notification period. Nothing has thrown out their warrants, ever.
People pulling this out now are trying to muddy the political waters. They are trying to shake a sitting president during the time of hostilities to sell a book and make hay for the ’06 election. This was illegal for any other president since FISA passed. Why are you asking the question now? I believe it is politically motivated.
What part confuses you? Bush believed he had this power, believed that court cases backed him up, and believed what other presidents said about having this power. Where do you get that he ‘deliberately evaded’ requirements he thought didn’t apply?
Logic? How can you deliberately evade something you don’t think applies?
December 30th, 2005 at 10:51 pm
JJ, the Aldrich Ames investigation followed FISA procedures. FISA allows for warrantless searches as long as no US citizen or property is involved. If a citizen or property is involved, it requires a warrant and makes provisions for secret court proceedings and after-the-fact approval. You are the one attempting to muddy the waters by pretending FISA gives the President blanket power to conduct warrantless searches. It only gives him the power to conduct warrantless searches on non-citizens.
Your statement that Clinton “didn’t notify anyone” is silly. Have you not seen the notice in the Federal Register Drudge dredged up?
Bush has admitted to spying on communications between citizens and non-citizens, and there has even been an admission that some purely domestic communications were “accidentally” monitored. Since Bush chose to operate without any oversight (violating the principle of checks and balances), we don’t really know what he did with NSA. It’s possible he has done nothing worse than avoid filing paperwork, but it’s also possible he used NSA to spy on American citizens without judicial checks. It will take an investigation to clear that up, especially since the paper trail may be incomplete.