Constitutional Spying ~ The solution to the FISA problem

Weekly Standard ^ | 01/02/2006, Volume 011, Issue 16 | Gary Schmitt

[Ernest_at_the_Beach]

The Foreign Intelligence Surveillance Act (FISA) is a chronic problem. The controversy over President Bush's decision to bypass FISA warrants in the electronic surveillance of al Qaeda operatives has highlighted the act's limitations. But FISA has been a problem ever since it became law in 1978.

Congress passed and President Carter signed the bill regulating electronic surveillance for foreign intelligence collection in the wake of an extended, post--Watergate debate about the so--called "imperial presidency." The debate was given added urgency by reports and official investigations of indiscriminate snooping in this country by elements of the U.S. intelligence community. However, like so much else from that period, the broad arguments about the president's role in the constitutional order were wrong, and the laws designed to correct real problems created a new set of problems.

One irony of today's debate is that so many liberals are now defending FISA. Previously, a common complaint from the ACLU and others was that the secret federal court that issues warrants for foreign intelligence surveillance in this country had become a "rubber stamp" for the executive branch. Out of the thousands of applications put forward by the Department of Justice to the panel over the years, only a handful had ever been rejected. Instead of a check on executive authority, the court had become complicit in its activities-or so it was said.

[Ernest_at_the_Beach]

In short, before the government can collect intelligence on someone by breaking into his house or tapping his phones, it had better already have in hand pretty persuasive evidence that the person is probably up to no good.

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FISA is less about collecting intelligence than confirming intelligence.

[Pragmatic_View]

Excellent article, making valid points, which the MSM is avoiding, like the plague.

"The inability of the FBI to aggressively pursue suspected foreign agents on U.S. soil was well aired in the 9/11 post--mortems, especially the notorious case of the "20th hijacker," French Moroccan Zacarias Moussaoui. His laptop was in the possession of FBI agents in Minneapolis in August 2001 but, for want of a warrant, was not searched before 9/11.

Though much of the court's workings are classified, there are known instances in which FISA's "probable cause" standard prevented the government from getting warrants where common sense made it perfectly clear surveillance was justified. Notably, there was the case of Wen Ho Lee, the Chinese--American scientist who worked at the Los Alamos nuclear weapons lab. Lee downloaded nuclear codes and databases from the lab's secure computers. "In the wrong hands," his boss noted, such information could "change the global strategic balance." Despite this, and the fact that Lee had access to a warhead design that had leaked to the Chinese, had visited China in the period when Beijing apparently acquired the data, and had obvious friendly ties to Chinese nuclear scientists, it was judged that a FISA warrant could not be obtained. It didn't matter how grave the damage might be if Lee was actually engaged in espionage; what mattered was the government had no real evidence that Lee was a likely spy."

Time to abolish FISA.

[mosquewatch.com]

And we all know "what people" they are listening to. :)

[gotribe]

But they did anticipate that Congress would play the role of Monday--morning quarterback: exposing malfeasance when called for, adding or cutting off funds when necessary, passing laws to regularize the exercise of executive discretion without undermining it, and, in the face of truly egregious behavior, being ready to impeach a president.

Which is exactly what Congress did in creating FISA. Bush and Congress are going to have to reach an understanding of sorts, since FISA isn't up to the task of the WOT.

[sgtbono2002]

I placed this on another thread it tells what I feel

Bill Press you stupid Basket. I bet you have a cell phone. That cell phone can be listened on by almost anyone with a scanner, and ya know what it also has GPS they can tell where your cell phone is any time of the day and track you better than a bloodhound. Ya know what else ?? You probably have an automobile, that car probably has GPS too so they can track it anywhere you drive , They can even listen in on your conversation inthat car. Guess what else , That car has a computer, They can plug into that computer ans see how fast you drive, They can tell if your car was ever run hot, They can tell if your seat belt was fastened, Yes Bill you dumb bastard we have all of that Ya know what else Bill?? If you went to the mall you were on somebodies monitor eevery inch of the way and if you were speeding or failed to stop at a stop sign you probably got a ticket for it becasue you were monitored, All of that Bill and you worry about the President of the United States of America listening in to your phone or computer when you contact a known Muslim Terrorist, F you Bill and the horse you rode in on.

[kitkat]

GOOD RANT!

[Pragmatic_View]

"The Founders, in the words of The Federalist, did not think it was wise or even possible to set a "limitation of that authority which is to provide for the defense and protection of the community." At the end of the day, a government has to do what is necessary to protect itself and its people."



This IS a very good article, as I said before and say it again.


How could the President possibly protect us, if he can't act to do so, without some long delay, not to mention intelligence leaks, which would warn the terrorists.

And nuclear or other WMD attacks on our cities hang in the balance.

[inquest]

From the article:

Obviously there is no neat solution to the problem of power and responsibility.

The way I'd phrase it is that there's not always a neat solution to what's legal and illegal. Particularly when it comes to eavesdropping, circumstances are everything. If you're eavesdropping to find out what a person's sexual habits are, that's clearly illegal. If you're eavesdropping because there's a good indication that he may be up to no good, that can be more permissible, depending on the facts surrounding the case.

The only "neat solution" is for everyone - including those who work for government - to be subject to the law at all times, and to have no a priori immunity for actions taken without a warrant. If it comes down to it, the jury (or the Senate in the case of impeachment) would have to examine the facts of the case and determine if the circumstances make the action legal or illegal - or, in the words of the 4th amendment, if the search was "reasonable" or "unreasonable".

[Ernest_at_the_Beach]

I should have added this earlier:

Gary Schmitt is director of the program on advanced strategic studies at the American Enterprise Institute and former executive director of the President's Foreign Intelligence Advisory Board.

[Ernest_at_the_Beach]

fyi

[jmaroneps37]

"So, then, what is to be done? Well, to start, we should have a serious debate about abolishing FISA and restoring the president's inherent constitutional authority to conduct warrantless searches for foreign intelligence purposes."

It is exactly stuff like this that makes the weakly standard such a useless pile of crap. Yeah let's debate!
With whom the Democrats? John Conyers and Barbara Boxer? This is a syllogism i.e. something that sounds good but can never work.

[Marine_Uncle]

"fyi". "One irony of today's debate is that so many liberals are now defending FISA."
Jerkweeds are sucking on peyote buttons. They are so far gone from any semblence of rational thought in many cases they have become a major threat to our very existence.