Thursday, December 22, 2005

Angry judges

Judges on Surveillance Court To Be Briefed on Spy Program:
One judge, speaking on the condition of anonymity, also said members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass the court.

The highly classified FISA court was set up in the 1970s to authorize secret surveillance of espionage and terrorism suspects within the United States. Under the law setting up the court, the Justice Department must show probable cause that its targets are foreign governments or their agents. The FISA law does include emergency provisions that allow warrantless eavesdropping for up to 72 hours if the attorney general certifies there is no other way to get the information.

Still, Bush and his advisers have said they need to operate outside the FISA system in order to move quickly against suspected terrorists. In explaining the program, Bush has made the distinction between detecting threats and plots and monitoring likely, known targets, as FISA would allow.

Bush administration officials believe it is not possible, in a large-scale eavesdropping effort, to provide the kind of evidence the court requires to approve a warrant. Sources knowledgeable about the program said there is no way to secure a FISA warrant when the goal is to listen in on a vast array of communications in the hopes of finding something that sounds suspicious. Attorney General Alberto R. Gonzales said the White House had tried but failed to find a way.
First, thanks go to the Washington Post for pointing out that the Bush administration is lying when they say that the law didn't allow them enough speed.

As for the last quoted paragraph, that rather gives away the game. The logic runs "We couldn't do this legally, so we did it illegally."

Is that how we do things now? Are we a nation of men, where we simply trust our President to do right? Absolutely not. We are a nation of laws, and a nation in which the powers of each branch and each person are checked by other people's powers.

There is no right to cast a dragnet over the entire nation in hopes of sniffing out crimes. That violates not only the 4th amendment, but the principle of innocence until guilt is proven. We're either all suspects, subject to search, or we're all presumed innocent, in which case they should have gone to the FISA court.

Now they run the risk of voiding warrants against legitimate targets of surveillance because they couldn't bother following the law.

As Marty Lederman points out:

This Administration … sees statutes as mere parchment barriers. Their argument -- just to be clear -- is that FISA, and the Torture Act, and the Uniform Code of Military Justice, and the federal assault statute, and the War Crimes Act, and the 60-day-limit provision of the War Powers Resolution -- and even the 9/18 AUMF itself (to the extent it is read, as it ought to be, as in some respects limiting the scope of force -- and treaties governing the treatment of detainees, and (probably) the Posse Comitatus Act, and who knows how many other laws, are unconstitutional to the extent they limit the President's discretion in this war.
This claim is absurd and ahistorical. The President's constitutional powers were explicitly limited by the Founders to prevent giving him monarchal powers to declare war, raise armies, and wage war. John Yoo's opinions to the contrary, the historical record clearly shows that the Constitutional Convention did not want the President to have absolute power, and neither do I.