(This started soley as a post on FISA but the more I read and the more I wrote, the more I had to say.)
Given today's Hamdan ruling, I think there might be some good relevance at taking another look at this post of mine from February, FreeRepublic On FISA 11/30/2000 (A Trip Down Memory Lane).
Synopsis
Conservatives were all in a tizzy over Clinton expanding the authority of FISA.
Seven judges on a secret court have authorized all but one of over 7,500 requests to spy in the name of National Security. They meet in secret, with no published orders, opinions, or public record. Those spied on May never know of the intrusion. Now, Clinton has expanded the powers to include not only electronic, but physical searches.
The aftershock of the Oklahoma City bombing sent Congress scurrying to trade off civil liberties for an illusion of public safety. A good ten weeks before that terrible attack, however with a barely noticed pen stroke President Bill Clinton virtually killed off the Fourth Amendment when he approved a law to expand the already extraordinary powers of the strangest creation in the history of the federal judiciary.
Conservatives seemed very concerned with secret segments of government being allowed to search and monitor people with little to no oversight and feared for the worse. Not only that, but the media's relative silence on the issue worried them, too.
Granting new powers to the FISA court was accomplished quietly and treated as a non-event in the national media. The lack of reporting was somehow fitting, though, following as it did the silent debate last year when Congress rubberstamped the annual Intelligence Authorization Act.
Some legal minds found the whole exercise positively refreshing. The fact that this was done with a minimum of fuss and posturing on both sides, and without having to have a debate that tries to roll up the corners of classified information is very impressive, cheered former NSA General Counsel Stewart Baker.
Reportedly, the Clinton administration had not always been enthusiastic about expanding the court's powers. Like its predecessors, it operated under the assumption that the executive already had inherent authority to exempt itself from Fourth Amendment constraints and could order warrantless searches to protect national security. Nonetheless, the government avoided allowing this inherent authority to be tested in the courts.
The fear and concern of those conservatives for protection of civil rights and privacy seemed awfully close in language to that of today's liberals.
This does not bode well for continued freedom.
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Any chance of Bush rolling some of this back? It sounds amazing on its face. Why didn't Wen Ho Lee just "disappear" into one of these Star Chambers, never to return?
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I don't see that as a possibility. This is wherein the danger lies in the precedent set by the Clinton criminal administration. God only knows who will be in power next, but there are no checks and balances anymore. This is exactly the SORT of thing I've been protesting all along. Libs just don't see this!
But when and where do they find this in the major media? They don't even know!
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This is one of those ideas that has a valid purpose behind it, but is wide open to terrible abuse. And there's no way to check to see if it is abused.
Like all things that don't have the light of day shining on them, you can be sure that it is being twisted to suit the purposes of those who hold the power.
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The targets need not be under suspicion of committing a crime, but may be investigated when probable cause results solely from their associations or status: for example, belonging to, or aiding and abetting organizations deemed to pose a threat to U.S. national security.
This was discussed previously on FreeRepublic along with a Justice Department list of organizations to target. I saved it but unfortunately have lost it.. there were a lot of pro-life and pro-2nd Amendment groups on the list if I recall correctly. One group they targeted was a pro-life organization run by Catholic priests!
(Boldface edits are mine)
So back to the Hamdan case. Glenn Greenwald put up a great post today,
The significance of Hamdan v. Rumsfeld wherein Glenn breaks down in understandable terms exactly what the language and meaning of the court decision is. Even so, the sections on FISA are clear, but too lengthy for me to repost here. If you haven't read his analysis, go read it now. Then come back.
Anyways, I decided to take a stroll around the blogosphere and see what conservatives were saying about this. My first stop was RedState where I learned it was all about those activist judges.
Then I hit FreeRepublic again and oddly enough, saw someone else citing the same diary I cited when I first wrote my Free Republic diary. Yet again, many interesting comments, too.
But then I hit this FR diary, Abolish FISA wherein a majority of comments it seems are infering that FISA itself is unconstitutional in a time of war and that it should be repealed.
Comment
Certainly under color of war it's unconstitutional. That's why the WH is taking such a strong stance that FISA is simply not applicable.
And in any case there's nowhere to answer the question, since any ruling by a federal court would also be unconstitutional.
As some talking head rightly pointed out, the only recourse is for the WH and Congress to "work it out", since there's no higher authority to turn to on the matter.
Comment
"...the only recourse is for the WH and Congress to "work it out", since there's no higher authority to turn to on the matter."
YES, but NO. When Carter surrendered the president's constitutional authority to the FISA court (via congressional legislation that was passed), he did so without the authority (a constitutional amendment was required) to do so.
Thus, the FISA court is an unconstitutional court.
Comment
Maybe Bush just wanted to be nice and not scare everyone. Most likely the opinion polls would be lower if Bush authorized purely domestic spying. And FISA is a quick way to get a purely domestic warrant without the hassle of reasonableness a normal judge might impose. But if Bush wanted to he could simply put the matter before the Supreme Court since its their job to judge whether Laws are consistant with the constitution. And by their and other federal courts precedent they would announce FISA to be unconstitutional.
All this talk about expanding FISA, submitting the NSA program to the FISA court is crap. FISA itself is unconstitutional limit of the presidents power when it comes to the NSA program (hence so would the FISA court of review even though they have said the president has the power). It was Carter's responsibility to check this and of course he failed.
So let me recap. Back when Clinton was the President and extended some abilities to the FISA court, that was bad. It was encroaching on Americans civil liberties, it was a "dark day for freedom," assumingly because it was performed in the shadowy bowels of our government, away from the prying eyes of Congressional oversight, out of the investigation of the media.
"Who knows who will be in power next!?...No checks and balances!!...no way to check if it's abused...you can be sure that it is being twisted to suit the purposes of those who hold the power"
Right?
Then 9/11 happened, and "everything changed," right? Suddenly FISA "limited" the power of the President too much in his abilitities to do whatever he wanted, basically, in the fight against terrorism. FISA was too limited in it's ability to be an effective tool in the War on Terror. We liberals responded by charging that Bush had sidestepped the FISA court, which required warrants for domestic spying, that civil liberties were in danger, and that there was no oversight, and the President himself argued that that FISA court worked what, too slow for him? Even though they granted almost every request put before them.
And now that the government just effectively got their ass handed to them by the Supreme Court of the United States, ruling that the President does not have inherent authority to simply overstep the laws that Congress sets forth, as I've understood some news reports and Glenn's post to pretty much point out, suddenly you're gonna pull the "FISA is unconstitutional anyways" Joker card out of your Republican bag of straw?
Tell me, what's the Republican fabric of choice these days when it becomes necessary to restitch your moral fiber? Is it insecurity? Fear? Hypocrisy?
What's your agenda these days?
Flag burning? Lord knows that flag burning amendment is sure going to help that low income wage earner feed his family, take his children to the doctor, or put gas in his car.
Gay Marriage? I'd think with 15 year-olds earning the right to marry, perversion and corruption within your own party, as well as concerns among your base that cervical cancer vaccines might lead to promiscuity instead of do what they're hopeful of, PREVENTING CANCER, gay marriage would be much less a threat to the survival of society.
Iraq? The Iraqi government wants reconciliation, they want to heal. Iraqi insurgent groups offered a truce and a timetable which at two years, was reasonable. But Bush doesn't want a timetable. he wants to take as long as he can.
North Korea? Well, Bush effectively lost sight of Korea when he got us bogged down in "6-month" Iraq. In the meantime, Korea built up an arsenal of nukes and are now ready to test a long range missile and Bush wags a finger and says "No, don't do that."
Where are the WMD's? And no, I don't mean the rusty old relics Rick Santorum found in a secret classified report that, according to Rick himself, had been out on the blogs for some time. Even though he had just gotten a hold of it after trying for 2 1/2 months.
What do you have?
"The economy!"
Hey. It's great the economy is soaring along. Too bad that in the last 9 years, the minimum wage has stayed stagnant while by comparison, Congressional pay raises have increased every year. Isn't it kind of hard to enjoy that great economy when you can't afford it?
"Housing!"
All I've been reading about housing lately is how the ever increasing Fed rate, with the latest taking it to 5.25%, is affecting a lot of people with Adjustable Rate Mortgages. Affecting them to the degree they have to now sell their house, auction it off, or otherwise foreclose. These are people's homes; how do you protect the sanctity of "family" when you can't keep your home?
"Education!"
Housing isn't the only thing that gets affected by that interest rate hike. Am I to believe I'm the only student who's been getting notices to consolidate my loans for the last year or so?
"National Security!"
Security? More like insecurity. And the threat is coming from inside, not outside, of this country.
The healthcare system in this country is horribly skewed. Insurance rates are way out of control. So are the costs of medicine. Student loans are costing more and more money. Corruption is permeating every segment of your governorship. Your self-advertised "focus on the family" style politics coupled by your perversion, obsession, fascination, and compulsion to tell people what they can or cannot, or should or should not do in either their lives or their own bedrooms are not what's on most Americans minds.
Get a clue. Your party is a joke. You have no agenda. You have no plan. You have nothing other than the belief that so long as you can maintain that Borg mindset, you won't have to do any real thinking of your own and you can just sail on by, ignoring the real issue that plague Americans.
And when people question your methods and motives, what do you do?
That's right.
Smear.
"Traitor," "Terrorist sympathizer," "Godless," "Liberal," "Gay," "Baby-killers," "Anti-military"
...
If this is all you have, then by all means, please, don't let me hold you up anymore. You're doing one "heckuva job" already so I don't want to delay you anymore from your important business of...well...I don't know; what's on the Republican American Family Agenda for tomorrow?
Re-voting some other bill you already lost in a vote?