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December 17, 2005

FISA

By Ezra

On the wiretapping, I want to be crystal clear on one issue: the issue here isn't the espionage, it's the secrecy. Of course law enforcement agencies will need to gather intelligence on domestic elements. They do it to drug dealers, mob bosses, militia men, and gang lords. It's neither new nor controversial. And of course these activities will be turned on potential terrorist groups, and even ratcheted up post-9/11. And of course timeliness is an issue and the President will need to authorize wiretaps before a judge can be summoned to rule on the case.

But you know what? We had procedures for that.

Everything Bush is doing is legal, but nothing in the way he's doing it is. When you need a wiretap, the Foreign Intelligence Surveillance Act allows you to apply for one. When you need it yesterday, FISA allows you to place the tap immediately and retroactively clear it with a judge 72 hours later. The law strikes a balance between broad executive powers and substantive oversight -- the president has full authority to assault the evildoers, but cannot deploy the law on behalf of his own political interests. It's a check on totalitarianism. What Bush has done is unilaterally decide the oversight unnecessary. Given the shape and safeguards of FISA, there was no operational need to evade it. It was an exclusively ideological decision in service of unlimited executive powers, and it's chilling.

December 17, 2005 | Permalink

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Comments

You're right -- he didn't need to do this to accomplish what he said. So, why do it? You can't help but jump to the conclusion that the targets of the spying were not "evil doers" and that the FISA court would not have approved them.

We're only seeing the tip of the iceburg.

Posted by: Kevin | Dec 17, 2005 7:08:16 PM

Everything Bush is doing is legal, but nothing in the way he's doing it is.

Very blurry writing on a seemingly blurry subject. It's not just the secrecy. Bush is doing as he sees fit without any constraints felt by him nor needed.

And for those who think FISA is this bulwark against unnecessary intrusions, get real. The FISA court in 2004 waved through all requests for surveillance retroactive or otherwise. Not a single one was denied.

People who think FISA is a great thing are the same people that like cop shows where the warrants can get done after the illegal search. Not to sound like too much of a crank, but that is an interesting interpretation of the the Fourth Amendment.

The point is we grow more and more desensitized to infringment on liberty every time one of these new interpretations of what is "reasonable" appears. Here Bush makes FISA look reasonable.

If you want a fright for what is possible, google National Security Letter.

Posted by: The Heretik | Dec 17, 2005 9:10:50 PM

Everything Bush is doing is legal, but nothing in the way he's doing it is.

And killing a man you don't know on a battlefield will get you a medal, but killing him in the street will get you life in prison. Other than that, there's no difference. The man's still dead, and you killed him.

The context in which things are done is sort of important, don't you think?

Posted by: paperwight | Dec 17, 2005 9:58:20 PM

And killing a man you don't know on a battlefield will get you a medal, but killing him in the street will get you life in prison. Other than that, there's no difference. The man's still dead, and you killed him.

Isn't that like that Ed O'Neill line in Wayne's World. "I'd never done a crazy thing in my life before that night. Why is it, that if a man kills another man in battle it's called heroic; yet if he kills a man in the heat of passion, it's called murder?"

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