Via
Atrios,
Marty Lederman articulates the
unstated premise in Judge Richard Posner's call for amending FISA -- Bush committed crimes:
Judge Posner has an Op-Ed in the Washington Post this morning that is understandably receiving a lot of attention. His argument is that the latest scandal reveals a serious gap in the legal intelligence-gathering laws. . . . . Posner laments that the Foreign Intelligence Surveillance Act, as currently written, "is too restrictive" because that law "makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities."
. . . This is an important public policy debate to be having. . . . But whether and to what extent Posner is right that data mining of U.S. persons should be legal is precisely the policy debate that ought to have had occurred in Congress in 2001 when the Administration felt the need to start down that road. Instead, this Administration -- knowing that even a super-compliant Congress after 9/11 would be wary of going as far as Posner proposes -- simply decided to break the law and do it anyway, citing a Commander-in-Chief override.
What's remarkable about Posner's Op-Ed is that his whole point is that the FISA law on this presently is (in his view) woefully inadequate to the task. He never even mentions the serious implication of this point, namely, that if he is right that FISA currently prohibits this -- and he is right -- then the Administration's data mining for the past four years has been a violation of criminal law.
. . . Posner may be right that current law is too restrictive. Congress should have that debate. But isn't it troubling that an esteemed federal judge seems so indifferent to the fact that, in the meantime -- before the Nation and the Congress have had the opportunity to debate Posner's proposal -- the Nation's Chief Executive is systematically authorizing criminal felonies?
(Emphasis mine.) Indeed it is troubling. I made the same point yesterday, about a not quite as esteemed figure, Orin Kerr.