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.