The Terrorist Group Renaming Program

The House will allow the current FISA legislation to lapse rather than address the differences between the their version of the extension and the one passed by the Senate on Tuesday. Democrats wanted yet another three-week extension to kick the can down the road again, and petulantly dropped consideration when both opponents and advocates of the Senate plan refused to agree. Now they're saying the lapse in the FISA legislation will have no effect -- as long as no new terrorist groups arise:

It would have a greater effect than that. They would have to revert to the old language about American switches, which means that foreign-to-foreign intercepts attained through telecom equipment in the US would have to have warrants as well. That decision by the FISA court precipitated the original FISA reform language, in which the Democrats put the sunset rule that has now been extended numerous times while Congress gets its act together.

As for the notion that somehow nothing will change because we can still track all of the existing groups in the same way we have (which is not true anyway), all that does is encourage terrorists to form new groups to exploit a very, very stupid loophole. What if al-Qaeda just splinters into completely new groups? Why not reorganize so that none of the existing groups technically exist after Saturday, forcing the NSA to waste time on new findings for each of the new groups?

Congress has played around with this long enough. The Democrats saw fit to limit the last legislation; they now have a Senate bill with plenty of time for perusal, analysis, and debate. We've been debating this for months, and now it's time to take the vote and get it done. If the Democrats would rather play games than protect the United States from terrorists, then they can pay the price for that in November, while the rest of us hope we don't pay a much higher price for it before then.

Michelle Malkin reminds us to use our voices by calling Senators at 202-224-3121. It might be better to call Representatives at the same number.

Democrats insisted that a lapse would have no real effect.

The expiration of the powers “doesn’t mean we are somehow vulnerable again,” said Representative Silvestre Reyes, Democrat of Texas and chairman of the House Intelligence Committee.

The lapsing of the deadline would have little practical effect on intelligence gathering. Intelligence officials would be able to intercept communications from Qaeda members or other identified terrorist groups for a year after the initial eavesdropping authorization for that particular group.

They're right so far. FISA lapsing really does have no effect on the President's authority to intercept communications from terrorists - for a year and beyond.

If a new terrorist group is identified after Saturday, intelligence officials would not be able to use the broadened eavesdropping authority. They would be able to seek a warrant under the more restrictive standards in place for three decades through the Foreign Intelligence Surveillance Act.

And this is just nonsense. So long as it is for the legitimate purposes of gathering intelligence on foreign powers and their agents, such as al-Qaeda, the President has the authority to conduct surveillance at his discretion, without any supervision or interference by Congress or the courts. As long as it is for legitimate intelligence gathering purposes and he does not want to use the information gathered in a criminal investigation, he can order surveillance conducted on any person, inside or outside the United State, with no warrant.

Where does he get this authority? Article II, Sec. 1 of the Constitution, "The executive power shall be vested in a President of the United States of America." The Founders knew well what the term "executive power" means; the term has its roots in the writings of Locke, Montesquieu, and Blackstone, among others. The executive power as they understood it includes the sole power to formulate and conduct foreign policy, as well as the power to gather intelligence. See The Federalist No. 64.

Furthermore, case law going back to Marbury v. Madison and even before supports the President's Constitutional authority here. The Supreme Court has never held that the President's intelligence gathering powers are subject to limitation by Congress. In fact, not even one Supreme Court Justice has ever written a dissenting opinion holding thus.

The President knows all this, of course. The man I learned all this from is one whose legal scholarship is certainly known to the White House. That's why I fully expect the President to issue an executive order ignoring the unconstitutional provisions of FISA, just as he recently issued an order to ignore unconstitutional conference report earmarks.

It may be a secret order, but the President is not obligated under the Constitution to inform Congress of intelligence operations. Congress's only Constitutional role in intelligence gathering is to appropriate money for the purpose; and they do not have the right to know exactly how that money is being spent. That goes all the way back to President Washington and the 1st Congress.

In short, I fully expect wiretapping of foreign terrorists to continue, and I fully expect the Administration to tell no one in Congress or in the public that he is doing so. Anything less would be gross malfeasance on his part.

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