In this thread – http://boards.straightdope.com/sdmb/showthread.php?t=356354 – Martin Hyde expressed doubt that the Foreign Intelligence Surveillance Act (FISA) is “proper law.” But he has not backed that up with any argument. I have yet to encounter any coherent argument that FISA is unconstitutional. I think the issue deserves its own thread.
FISA (http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act) was enacted in 1978, in response to the report of the Church Committee (http://en.wikipedia.org/wiki/Church_Committee) investigation into questionable intelligence-gathering activities of the FBI and CIA. FISA prescribes procedures for foreign surveillance and intelligence gathering. It creates a special FISA court, and requires government agencies to obtain a warrant from said court for surveillance of suspected foreign intelligence agents inside the U.S. It expressly states warrants are not required for purely foreign surveillance. The constitutionality of FISA has been tested in only two cases, both of which found it constitutional; but the challenges in those cases came from defendants who contested the constitutionality of foreign surveillance without warrants. http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act#Post_FISA The constitutionality of requiring warrants for domestic surveillance apparently has never been tested.
The Bush Admin’s challenge to FISA, near as I can follow it, seems to be based on the theory that it is an unconstitutional encroachment on the president’s authority as military CinC. Or something like that. Can anyone here flesh it out?
You have the gist of the argument. The basic theory is that a President’s powers under the constitution cannot be infringed upon by another branch of government. For example, Congress can’t be the the commander in chief and the judiciary cannot execute the laws. In this issue, the President has powers under the Constitution to conduct wiretaps of foreign powers, and, thus, Congress cannot infringe upon that power with FISA. The root of the presidential power is found in Article II, where he is given the power as commander in chief. This extends to his powers regarding foreign surveillance for the purposes of national security. Since this power is, the argument goes, vested solely in the President, Congress cannot restrict the power. Thus FISA is constitutional. I have also seen the argument that FISA is unconstitutional as applied because it granted the President the power to conduct foreign surveillance with the Authorization for Use of Military Force.
Of course, I’m not one to ask, because the argument is bollocks. And I’m not even sure what bollocks are.
Sort of bizzare, there must be half a hundred laws passed regulating what the DOD can and can’t do during wartime, right? The Geneva conventions, for example, are law because they’ve been ratified by congress, but I’ve never heard the Bush administration argue that those treaties were unconstitutional.
Also the current round of wiretaps involve spying on US citizens, right? This is illegal without a warrent due to the 4th amenendment, and FISA as expanded by the Patriot Act allows a special court to give such warrents if national security is at risk. It seems to me, then, that it is the 4th amendment making the NSA program illegal, not FISA. Why then would Bush be fighting against FISA? Is there something I’m missing?
Apparently, because FISA requires an agency to get a search warrant for domestic surveillance. This warrant is issued by a special FISA court – http://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Court – in a secret, non-adversarial hearing, and it is ridiculously easy to get – apparently only four requests have ever been denied; but, for some reason, Bush wants NSA to be excused even from that requirement.
THAT’S the real puzzler – why is Bush chafing under the incredibly light duress of FISA requirements? They can get a warrant three days AFTER initiating a wiretap under FISA. The ONLY explanation for Bush’s reluctance that makes ANY kind of sense is that he’s up to no good – wants to use the NSA wiretap powers for uses that are flat out illegal, like spying on domestic political opposition.
No, he simply may want to use it in cases for which the proof of involvement with Al Queda et al is much lighter then those FISA usually approves. For example he could scan all the phone calls of anyone who ever called anyone whoever called Mohammad Atta, down to 3 or 4 degrees of seperation. While FISA is famously easy going, I doubt they would accept phone tapping of huge groups of people on such light premise as a “friend of a associate of the dry cleaner” of a known terrorist.
I don’t think such mass wiretapping, or some other similar scheme that FISA wouldn’t have approved should necessarily be illegal, but the fact is that it is illegal, and if Bush wanted to do it he should’ve sought to change the law rather then just give the NSA the OK. Even if you trust Bush not to abuse this power, can you say the same about the next president, or his/her successor.
Not only did Bush not seek to change the FISA law, his administration actively rejected legislation that would have lowered the standard for obtaining FISA warrants. Cite. Oddly enough, they argued that the lower standard might cause constitutional problems for FISA, but never mentioned that they thought FISA was unconstitutional anyway.
or reporters. After all, they have “questionable” contacts, and how convenient would it be to have access to their personal shit.?
for instance,
"Hey, Judy. How would you like your big-time editor husband to see those pix of you taking on company c, 82nd airborne. You know, the ones you emailed to your old college roomate?
The constitutional argument that GWB relies on is that congress is not allowed to pass a bill which restricts a presidential power granted by the constitution. An amendment is required to restrict constitutional presidential powers. I’m not qualified to judge whether that’s a good argument or not. It seems to me that things like the War Powers Act did exactly that. The Geneva Conventions exception suggested by Malodorous above is not quite the same. A treaty is not US law, even if it is ratified, if I understand it correctly. In fact, the 1949 treaties that are called “The Geneva Conventions” required signatory nations to independently pass laws that would criminalize behaviors proscribed by the treaties.
A treaty is U.S. law if ratified, although it might require further enabling legislation for its provisions to be applied to criminalize the conduct of individual citizens.
As for the president’s powers, the only arguably relevant clause of the Constitution would be Article Two, Section 2, Clause 1:
And that’s all. The power to declare war rests with Congress, as set forth on Article 1. So I don’t see how the War Powers Act (actually the War Powers Resolution – http://en.wikipedia.org/wiki/War_Powers_Resolution) unconstitutionally limits the president’s authority in the military sphere. One might argue, to the contrary, that the WPR is unconstitutional to the extent it authorizes the president to take military action without the express permission of Congress.
You are correct, I was mistaken about the status of treaties, the US does consider them part of US law once ratified. In the Wiki link you provided, two constitutional arguments are mentioned regarding the War Power Resolution (thanks for the correction there, as well), neither of which involves the “Commander in Chief” clause directly. One is an enumerated powers argument and the other involves the oath to “faithfully execute”. My understanding of the WPR is not that it granted the president the power to take military action without congressional approval, but that it limited that power, a power that was always understood to exist. Presidents have acted militarily without congressional approval since John Adams (link ). The congressional authority to declare war has been understood to refer to total war situations, while other military action was under presidential authority. Anyway, I wasn’t aguing for GWB’s position regarding the presidential inherent powers; I just mentioned the WPR as an example of a congressional limitation on presidential power that so far has not been found to be unconstitutional.
Martin has no ARGUMENT vis-a-vis the constitutionality of FISA–he merely has inklings.
As long as he can limit his rejoinder to the “possibility” that FISA unconstitutionally restricts W’s options, he can support the continuation of the status quo–Bush spies and stonewalls, the senate jerks off.