Thursday, October 25, 2007

FISA and idiotic opinions

Here's the substance of the anti-FISA debate. I think the last two sentences sum it up:

For precisely the same reason, he was also right to refuse to be bound by unconstitutional acts of Congress like FISA that usurp presidential power. Any senator who elects to vote against him because of this issue has a duty to explain to the American people by what theory an unconstitutional statute has suddenly taken on a superior position to the Constitution itself.


Prior to the enactment of FISA, Presidents claimed they were spying for "national security purposes"... and then spied on whoever the hell they wanted to spy on. This isn't right and isn't fair, and it's not Constitutional. We, the people, have the right "to be secure in (our) persons, houses, papers, and effects, against unreasonable searches and seizures". The government, and all government officials, do not have the right to eavesdrop on us without a good, solid reason.

But the President must have the right to gather intelligence information, so Congress gave directions on how the President would gather that intelligence information in order to prevent abuse. Note: this does not infringe on the President's powers at all. If the President doesn't have cause to spy on American citizens, he's not allowed to. All FISA does is give the framework for how the President will demonstrate that he is not abusing his power.

I'm sure there are some who pull in the sophistry that the FISA court could refuse to allow the President to spy due to a mistake in the application of the law (i.e., giving the court authority over the President's sole power to conduct spying), but this is clearly fallacious reasoning. The courts interpret the law and renders findings of fact. If the court determines a warrant is unjustified, it's not... the authorities had better re-apply for the warrant, making their case more clearly.

So, FISA does not infringe on the Presidents power... it merely expresses how they are to be carried out, and dictates the penalties for abuses of power. FISA is not unconstitutional. Further if it was, there is an easy remedy for that: the courts. The President could use information obtained sans warrant, and claim the President is not bound by FISA because it is unconstitutional, and let the courts strike it down.

Clearly, the Bush administration knows how that will turn out... there's a darn good reason they're trying so hard to get the new bill passed.

The facts of the matter are simple. The Bush administration has confessed to breaking the law, both in letter, and in spirit. The President is saying that he and his cronies are above the law. This would be disgraceful coming from a two-bit hoodlum; it's infinitely worse coming from the people whose job it is to uphold the law.

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