Is FISA a ball and chain?

2006.02.17 — Government | Terrorism | Law | by BB Rodriguez

The 1978 Foreign Intelligence Surveillance Act (FISA) clearly delineates the president's authority to conduct espionage against American citizens and that is that it requires him to get a warrant within 72 hours of an operation from a special secret court. If that was too onerous, the president should have sought broader powers explicitly from Congress. Oops! He did. That's why he now has 72 hours to get a warrant, which underscores the illegality of doing without their authority.

Senator Pat Roberts (R-KS) wants you to believe that that's not good enough. The president should be allowed to ignore FISA just because the paperwork is a pain the ass. Several presidents and tens of thousands of FISA warrants suggest that it's not too painful.

Roberts and the president also want you to believe that the program is worthless if the details aren't kept secret, and that hinders Congress's ability to hear and legislate on it. What's the basis for this belief? Everyone knows how FBI wiretaps work and that still seems to be effective against the Mafia. It's nothing more than a smokescreen.

Worse, claiming the president should ignore FISA because he must act quickly to catch terrorists would be easier to believe if he actually caught any terrorists. Dick Cheney believes it's saved thousands of lives. But Dick Cheney has demonstrated that he's full of shit on a number of topics.

The imperial president

The underlying problem is that President Bush, pressured by Dick Cheney and Donald Rumsfeld, has come to believe that the president inherently has greater powers than presidents have traditionally exercised. There is no particular legal justification for this. They merely assert it as fact. After all, much of what a president does is a bit fuzzy if you look for legal authority in the Constitution or Congressional statutes.

Why can the president send troops around the world to start a war on his own initiative? He is commander-in-chief, they say. But the captain of a nuclear submarine is the commander of that submarine, and yet he can't commit his submarine to warfare on his own initiative. It is Congress that has the sole power to declare war. The founding fathers never imagined the country going to war without a declaration. That's pretty much the definition of piracy.

The real answer, of course, is that Congress has decided that declaring war is messy and risky, and they would rather cede that power to the president, who has to do the fighting and can easily be voted out if things go badly (well, that's the theory, anyhow). Maybe that is the best way, but it's not constitutional.

What definitely isn't the best way is giving the president the ability to spy on Americans without due process of showing probably cause and getting a warrant. It is far, far too tempting for a president to then wield that power to eavesdrop on Americans who merely oppose him politically. After all, if he thinks that he represents America, then anyone who opposes him poses a threat to America.

That's where George W Bush's head is. "I am America. You are either with us or against us. Oppose me and you oppose freedom and democracy. Question me and you question liberty and the American way." That's a dangerous place for a leader's head to be.

In the coming days, we will likely learn more details about the domestic surveillance program and the strange fish it has netted. Already there are tales of vegans and Quakers being targeted by the Pentagon. These are not al-Qaeda terrorist sympathizers. They aren't even violent or dangerous. They are Bush-opposers.

Of course, to Bush, that means they are dangerous. He writes his own definitions.

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