Strengthening Constitutional Self-Government

No Left Turns

War-fighting and law enforcement

This WaPo article clarifies the problems inherent in the pre-9/11 law enforcement attitude I noted here. Apparently the FISA judges don’t regard evidence generated through warrantless wiretaps as admissible in making the case for a FISA warrant.

Connected with this story is this WSJ editorial, which argues for the repeal of FISA:

What FISA boils down to is an attempt to further put the executive under the thumb of the judiciary, and in unconstitutional fashion. The way FISA works is that it gives a single judge the ability to overrule the considered judgment of the entire executive branch. In the case of the NSA wiretaps, the Justice Department, NSA and White House are all involved in establishing and reviewing these wiretaps. Yet if a warrant were required, one judge would have the discretion to deny any request.


As a practical war-fighting matter, this interferes with the ability to gather intelligence against anonymous, al Qaeda-linked phone numbers. FISA warrants apply to people, and are supposed to require "probable cause" that the subject is an agent of a foreign power. But as Mr. Gonzales and Deputy National Intelligence Director Michael Hayden explained Monday, in fast-moving anti-terror operations it’s often impossible to know if someone on the U.S. end of an al Qaeda phone call is actually an "agent." That means the government must operate on a different "reasonable basis" standard.

I’d quibble with one part of this argument. In his colloquy with Mike DeWine on Monday, the Attorney General seemed to concede that "reasonable basis" and "probable cause" were equivalent terms, but he also implied that "probable cause" works differently when we’re talking about identifying agents rather than about the commission of a crime. The latter obviously deals with the law enforcement, the former with intelligence-gathering in wartime. If indeed the FISA court won’t grant warrants on the basis of information developed through this alternative route, they are operating on a pre-9/11 basis. And, by the way, if you actually read law’s documentation requirements, you’d be compelled to agree that it’s not a "nimble" instrument in a fast-moving situation, and it’s not clear that it can be revised to make it so.

Update: Hugh Hewitt has more on the FISA Court here and here. I expect that there will be more at Radioblogger later.

Update #2: This WSJ editorial comments on yesterday’s WaPo article. And here’s the transcript of Hugh Hewitt’s conversation with John Eastman and Erwin Chemerinsky about the behavior of the two FISA judges.

Discussions - 2 Comments

Alexander Hamilton taught that energy in the executive is a leading character in the definition of good government; that an energetic executive is capable of secrecy, dispatch, decision and activity; and these attributes of executive energy are most essential to the management of the nation’s foreign affairs. His observations were premised on internationalism, that is, on his judgment that this country should and someday would play a proactive, major and expansive role in world affairs. Isolationism or the idea that the American role in world affairs should minimal and reactive has had its own long-standing pedigree, and its most recent issue has been the neo-isolationism of the New Left or "anti-war" faction in the Democratic party. Since 1968 when the New Left Democrats began their successful efforts to drive the internationalism of the Old Left or FDR, Truman, JFK administrations from their party, and particularly since 1980 when the Reagan-Republican Party shouldered the burdens of internationalism, the New Left Democrats have alternated between the Scylla of doing everything possible to obstruct Republican foreign policies and the Charybdis of criminalizing their policy differences with the the internationalist Republicans. The "canonization" of FISA and the attempted criminalization of the terrorist surveillance program are only the most recent manifestations of the neo-isolationist fury of the "anti-war" left; of a left which--in truth--is not anti-war, but which, instead, is reflexively opposed to the projection of American influence, power and principles anywhere in the world because of its deep and reactionary repudiation of the principles of the Declaration of Independence.
Ric Williams
Glendale College

i would agree if we had politicians with integrety wich we do not surely by all the evedence that has come forward you cant be that naieve that you trust the ones in power now with no checks and balances

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