Wednesday, February 08, 2006
Rocky Mountain News Misses the Point
The Rocky Mountain News is the better paper here in Denver, and most of us right thinking people think the World of the editor of the editorial page, Vince "our main man" Carroll; but just as a blind hog sometimes finds the acorn, so too does a sane, temperate editorial board sometimes miss the point entirely--like in today's editorial about FISA. I won't repeat the whole thing, just the two points where it goes wrong
The Foreign Intelligence Surveillance Act (FISA), passed in 1978, may be lurching toward obsolescence as an effective tool for either gathering information about terror threats or protecting Americans' privacy.
FISA is not a tool, the NSA programs are the tool. FISA is a brake on the system. It is designed to make it more difficult for NSA to do its job. You could make the point that FISA is an important brake on a broader system which some presidents have used for venal political ends and then justified with the grand title "national security" but FISA is not the engine, it's the kill switch.
In defense of the NSA program, Gonzales noted that the president has broad constitutional power to defend the nation during wartime. And when Congress gave the president the authority "to use all necessary . . . force" to pursue al-Qaida in 2001, Gonzales said, that included the ability to bypass FISA if needed.
The President, as commander in chief of our armed forces (Army and Navy in the Constitution), has the sole power to wage war. Congress can declare war, fund it , make rules for the Army etc.. but they don't choose what to do to fight it--which targets, which methods. That's exclusively the President's call. It's a good system. Too many cooks spoil the broth. There is a check and balance. If we don't like what the President is doing, we can vote him out next election. Congress cannot tie the President's hands in how to fight the war. FISA, says the appellate court which reviews FISA actions, cannot take away the Presidents' power to conduct foreign surveillance (See In re: Sealed Case Number 02:001).
So rather than try to take away the Presidents' power to wage war against al Qaeda, the Authorization for Use of Military Force (AUFM) passed by Congress in September, 2001, authorized the President to do exactly what the Constitution allows him to do. The AUFM is Congress declaring war on al Qaeda. FISA has a 15 day period in it, after a declaration of war, when no warrant is necessary. All who have actually read the legislative history agree that this period of time was for Congress to act to fine tune what we should be doing against the particular enemy. (Also FISA says you can't eavesdrop without a warrant unless it's authorized by another statute). The AUFM is this other statute and it is the fine tuning after war was waged against us, passed within 15 days of 9/11.
So rather than 'bypass' FISA, as the editorial mistakenly states, the President's actions, through NSA surveillance of international communications, are following FISA and the AUFM as well as carrying out the President's constitutional duties. The question even some (apparently somewhat dim) Republicans are asking about the NSA's legality seem totally unjustified. Not only are the President's actions legal, he must be taking them to do his constitutionally required duty to protect the nation from foreign attack.
Now, you can point to the AUFM, which gives the President the power to use all necessary force against al Qaeda and say, it doesn't mention anything about surveillance of international calls involving someone (not necessarily a citizen) in America. That's true. FISA is specific, you could state, shouldn't it still hold sway over the general grant of power? But to answer that question, all you have to do is look at the Hamdi case. (More than O'Connor's bad dicta that the AUFM is not a blank check--who doesn't know that?). There's nothing in the AUFM which says the President can take and hold prisoners. There was, however, a very specific statute which said you can't hold American citizens in custody basically without criminal charges. The Supreme Court said the AUFM in a sense, overwrote that statute and allowed the President to do everything normally incident to waging war (like taking prisoners and, I add, spying on the enemy).
If the NSA's terrorist surveillance program were a case of spying, for example, on Martin Luther King by the Kennedy brothers in October 1963, rather than spying on our nations' foreign enemies, then maybe we could be talking about updating FISA, but since there's no hint of abuse of power here and the President is merely carrying out his Constitutional duties as buttressed by the AUFM, there seems nothing to fix with FISA (and this whole investigation by the wrong committee in the Senate seems like a tempest in a tea pot).
The only thing we need to do now is find out who leaked the existence of this NSA program to the press and prosecute them, along with all the aiders and abettors at the New York Times.
The Foreign Intelligence Surveillance Act (FISA), passed in 1978, may be lurching toward obsolescence as an effective tool for either gathering information about terror threats or protecting Americans' privacy.
FISA is not a tool, the NSA programs are the tool. FISA is a brake on the system. It is designed to make it more difficult for NSA to do its job. You could make the point that FISA is an important brake on a broader system which some presidents have used for venal political ends and then justified with the grand title "national security" but FISA is not the engine, it's the kill switch.
In defense of the NSA program, Gonzales noted that the president has broad constitutional power to defend the nation during wartime. And when Congress gave the president the authority "to use all necessary . . . force" to pursue al-Qaida in 2001, Gonzales said, that included the ability to bypass FISA if needed.
The President, as commander in chief of our armed forces (Army and Navy in the Constitution), has the sole power to wage war. Congress can declare war, fund it , make rules for the Army etc.. but they don't choose what to do to fight it--which targets, which methods. That's exclusively the President's call. It's a good system. Too many cooks spoil the broth. There is a check and balance. If we don't like what the President is doing, we can vote him out next election. Congress cannot tie the President's hands in how to fight the war. FISA, says the appellate court which reviews FISA actions, cannot take away the Presidents' power to conduct foreign surveillance (See In re: Sealed Case Number 02:001).
So rather than try to take away the Presidents' power to wage war against al Qaeda, the Authorization for Use of Military Force (AUFM) passed by Congress in September, 2001, authorized the President to do exactly what the Constitution allows him to do. The AUFM is Congress declaring war on al Qaeda. FISA has a 15 day period in it, after a declaration of war, when no warrant is necessary. All who have actually read the legislative history agree that this period of time was for Congress to act to fine tune what we should be doing against the particular enemy. (Also FISA says you can't eavesdrop without a warrant unless it's authorized by another statute). The AUFM is this other statute and it is the fine tuning after war was waged against us, passed within 15 days of 9/11.
So rather than 'bypass' FISA, as the editorial mistakenly states, the President's actions, through NSA surveillance of international communications, are following FISA and the AUFM as well as carrying out the President's constitutional duties. The question even some (apparently somewhat dim) Republicans are asking about the NSA's legality seem totally unjustified. Not only are the President's actions legal, he must be taking them to do his constitutionally required duty to protect the nation from foreign attack.
Now, you can point to the AUFM, which gives the President the power to use all necessary force against al Qaeda and say, it doesn't mention anything about surveillance of international calls involving someone (not necessarily a citizen) in America. That's true. FISA is specific, you could state, shouldn't it still hold sway over the general grant of power? But to answer that question, all you have to do is look at the Hamdi case. (More than O'Connor's bad dicta that the AUFM is not a blank check--who doesn't know that?). There's nothing in the AUFM which says the President can take and hold prisoners. There was, however, a very specific statute which said you can't hold American citizens in custody basically without criminal charges. The Supreme Court said the AUFM in a sense, overwrote that statute and allowed the President to do everything normally incident to waging war (like taking prisoners and, I add, spying on the enemy).
If the NSA's terrorist surveillance program were a case of spying, for example, on Martin Luther King by the Kennedy brothers in October 1963, rather than spying on our nations' foreign enemies, then maybe we could be talking about updating FISA, but since there's no hint of abuse of power here and the President is merely carrying out his Constitutional duties as buttressed by the AUFM, there seems nothing to fix with FISA (and this whole investigation by the wrong committee in the Senate seems like a tempest in a tea pot).
The only thing we need to do now is find out who leaked the existence of this NSA program to the press and prosecute them, along with all the aiders and abettors at the New York Times.
# posted by Roger Fraley @ 7:31 AM 
