NSA / FISA follow-up follow up
It was not actually the fact that NSA bypassed FISA—it was actually that Bush was opening the NSA leads to FBI investigation which were making their way to the FIS Court—where these leads were being rejected by the head judges as Ã¢â‚¬ËœillegalÃ¢â‚¬â„¢ leads! The so called Ã¢â‚¬ËœtaintingÃ¢â‚¬â„¢ of FISA some of the FIS Court judges complained about.
As I’ve noted on several occasions now (most recently, yesterday), it is becoming increasingly clear that some of the FISA court dissenters (Judges Kollar-Kotelly and Lamberth) refused to view the NSA warrantless “leads” (as pertains to US persons) as legal, considering the very existence of these leads, which are presented in summary form to the FBI, as a violation of the criminal law process.
That is, because the NSA is secretive in its methods and obtains its info by casting a broad net before passing it on to the FBI (in summary form), the chain of custody could not be said to be pristine, and the NSA could not be called to testify on its collection methods (though some civil liberties absolutists are angling for just such a thing; to them, there can be no classified information, even if it is being used to protect the country). Therefore, some dissenting FISA judges, working under the criminal law paradigm, were refusing to issue warrants based on the NSA leads.
This seems to mesh with the arguments made by several prominent law professors, appearing on Hugh HewittÃ¢â‚¬â„¢s radio show, who expressed concern that Judges Kollar-Kotelly and Lamberth exceeded their authority and were bottling up the system—in effect, forcing the President into asserting Article II powers—something I wrote about back in February.
And if this all is indeed the case, a number of pundits, media outlets, and politicians who had the story completely wrong and accused the President of acting illegally (including those who called for “censure” and floated the “impeachment” trial balloon over this) owe the Bush Administration, the Justice Department, and the NSA a rather public apology. Not that I expect we’ll see such a thing.
Of course, if I’ve been wrong all this time—which, without a SCOTUS ruling, I don’t see how I can be, honestly, given the extent of the President’s Article II powers during war, and the NSA’s standing as a part of the military—I will admit my mistake(s).
But nothing so far has convinced me this illegally leaked story has been anything more than an opportunity for those who distrust Bush to accuse him of wrongdoing in advance of the facts—and for those who wish to see the Executive better constrained by the Judiciary and the Legislature (the Constitution doesn’t go far enough, or provide the “right” kinds of checks, is the implicit argument) to try to gin up outrage and force a power grab that would give the Legislative branch a say in micromanaging the CinC’s war-time decisions.
If anyone can find the link to the C-SPAN judges’ testimony, or the complete transcript, please pass it along and I’ll post it here.