Replies

Except that it has turned down a disproportionate number of those referred to it by the Bush administration.

Please offer a citation for a claim like this.

That is not true, and there is a plethora of legal opinion stating such. There are even official judicial opinions stating such.

John Yoo or Alberto Gonzalez' opinion, as that of officers of the executive branch, are not binding or precedent setting. Really, all the judicial opinions to this point are pretty much immaterial until it goes to the SCotUS.

Where FISA can be used, it should be.

Agreed.

In no case should a FISA refusal or lack of one be an excuse for ignoring possible terrorist chatter. We simply cannot afford it.

Again, this applies only to purely domestic communications. Justify it to me....Why on earth should the executive not have to comply with the law? The libertarian in me cringes even to think of it.

Allow me to finish with a quote: Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.
-Ben Franklin

Again, this applies only to purely domestic communications.

Uh, no it doesn't. Warrantless searches apply to those involving a domestic party and an international party. There is simply no reason to have to go to a FISA judge when a terrorist in the Phillipines is speaking to a contact in the United States, citizen or not.

I would also apply that to a known terrorist suspect in the United States when he is speaking to someone domestically, though I can see the case for eventually getting a FISA warrant.

And, if you'll go up the thread, you'll see plenty of judicial opinions over the last 20 years that give a great deal of leeway to the CIC in wartime to surveil terrorist suspects, even without a warrant.

Justify it to me....Why on earth should the executive not have to comply with the law? The libertarian in me cringes even to think of it.

If the Congress passed a law saying "nobody can ever write anything negative about anyone who holds federal office", I could (and would) break that law early and often. Wouldn't you? If a law is unconstitutional, it can (and in most cases probably should) be broken.

There are only three interesting questions in this case. Did the President violate FISA? If so, is FISA Constitutional? And if the answer to either of those is no, then did the President violate the Fourth Amendment?

The decision says the executive "undisputedly" violated FISA... (but then a few paragraphs later goes on to say that the executive does dispute the claim and points to the AUMF). Did the POTUS indeed violate FISA? Maybe.... eh... probably. I think resting on AUMF is colorable... but weak.

But that is meaningful only if FISA is Constitutional. Is it? Probably not. Could the President sign an executive order requiring Congress to submit all proposed laws to a judge before they could be voted on? No. Such an order would have a seemingly Constitutional purpose (to prevent Congress from writing potentially harmful laws that don't pass Constitutional muster) but would violate the Separation of Powers. This decision doesn't even comment on the constitutionality of FISA... saying since the President violated the Fourth Amendment it doesn't matter one way or another.

But how did the court come to the conclusion that the President violated the Fourth Amendment? According to the decision, the POTUS violated the Fourth Amendment by violating FISA (circular reasoning alert!) and... get this... "Accordingly, the Fourth Amendment... requires prior warrants for any reasonable search...

The fourth amendment requires warrants for any reasonable search? What? Since When? So no more exigent circumstances? No more Terry stops? What about 'plain sight'? What about people on parole? When I'm at an airport can I refuse to go through the metal detector? There are plenty of warrantless searches found to pass Constitutional muster. The cases she sites all acknowledge that there are times when warrants aren't required. She's dismissed them all.

(She also claims that the President violated the First Amendment. Can you explain to me how the president could possibly have violated the clause that begins "Congress shall make no law..."? )