Abolish FISA

[Dave Farber <dave () farber net>]

-------- Original Message --------
Subject:        Abolish FISA
Date:   Thu, 09 Feb 2006 06:56:45 -0500
From:   Atkinson, Robert <rca53 () columbia edu>
To:     dave () farber net



Dave:

The item below is from the lead editorial in today’s Wall Street 
Journal. I’m sure many will disagree but it will be interesting to see 
if any member of Congress proposes a bill to abolish FISA as a counter 
to any bills that seek to expand it. That will present Congress with a 
very difficult election year dilemma.

Bob

Abolish FISA
/February 9, 2006; Page A12/

Whatever happened to "impeachment"? …

…the polls show that a majority of Americans want their government to 
eavesdrop on al Qaeda suspects, even -- or should we say, especially -- 
if they're talking to one of their dupes or sympathizers here in the U.S.

In short, the larger political battle over wiretaps is over, and the 
President has won the argument among the American people.


     ** * **

… Judging by Monday's hearing, Senators of both parties are still hoping 
to stage a Congressional raid on Presidential war powers. And they hope 
to do it not by accepting more responsibility themselves but by handing 
more power to unelected judges to do the job for them…

But note well that the Members aren't talking about sharing 
responsibility themselves for wiretap decisions. That they want no part 
of. The leadership and Intelligence Committee chairs were already 
briefed numerous times on the NSA program, only to have several of them 
deny all responsibility when the story was leaked…

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…

As a practical war-fighting matter, this interferes with the ability to 
gather intelligence against anonymous, al Qaeda-linked phone numbers…

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. And it contributed to the NSA's decision 
not to listen to foreign calls to actual hijacker Khalid al-Midhar, 
despite knowing that an al Qaeda associate by that name was in the 
country. The NSA feared being accused of "domestic spying."


     ** * **

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.

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