Blogger: Today we invited Devon the Constitutional Law Dog to the blog to explain the FISA bill that the House may soon vote on. Devon, thanks for stopping by. Can you explain the history of FISA to us?
Devon the Constitutional Law Dog: Thanks, it's a pleasure to be here. Many years ago, a tragic and evil person named Tricky Dick spied on Americans and his political enemies. He used the awesome power of the federal government to position himself and his fiends better politically. After Mr. Dick was sent to the doghouse, the congress passed a law that allowed the executive branch to go to a special court and easily get warrants to spy on people the president thought might do bad things. This FISA court reviews the reasons why the president wants to spy on people, and if the president has a good reason then the court grants the warrant.
B: OK, so the president under the current law must go to court to get a warrant to spy on Americans suspected of talking to bad people. That must be hard to get.
DtCLD: Not at all. Through the end of 2004, 18,761 warrants were granted, while just five were rejected.
B: Wow, that's a pretty good record for the government.
DtCLD: Sorry, I didn't hear you, I was scratching. What did you say?
B: Why are you only reporting what happened until 2004? Did the court stop granting warrants.
DtCLD: That's an interesting question. The court did not stop granting warrants, but the government also cut back on asking for warrants. The government has all but acknowledged they have been illegally spying on Americans without warrants. Some people say that the government was illegally spying on Americans even before 9-11 changed everything.
B: Yeah, I remember hearing about that. There was even a one-time presidential hopeful who talked about 9-11 changing everything.
DtCLD: Rudy! Yes, he was great. He made the police take his girlfriend's dogs out for a poo. Some of them were my friends.
B: The police?
DtCLD: The dogs.
B: Oh, sorry. Well, back to 9-11. Tell me how that changed everything.
DtCLD: It didn't. It didn't change one thing. Go read the Constitution. Article II describes the power of the president. It doesn't say anything about spying on Americans. It doesn't say anything about super special secret powers of the president in times of war or other trouble. The founders had just finished fighting a war with a powerful enemy that could have sailed into town and hung the lot of them. But the founders were not scared of anything. They wrote in the Bill of Rights that Americans would be protected from unreasonable searches and spying by their government. They fought a war against King George to be free of his spying. They would be very distressed to learn today that another George was doing the same damn thing they fought against.
B: Wow, I didn't know that. So tell me, what is this law under consideration today in Congress. Did FISA expire?
DtCLD: No, it did not. FISA still exists, and the government can go get a warrant to spy on Americans talking to foriengers anytime it has a good reason to.
B: Then what is the problem?
DtCLD: Barney's dad wants to give amnesty to telephone companies that helped him illegally spy on Americans.
B: You mean, the phone companies broke the law, the president broke the law, and the Congress wants to give them amnesty so they never have to answer for their crimes?
DtCLD: Yes, that's what they are planning to do.
B: Wow, explain how that happened.
DtCLD: Barney's dad went to the phone companies with a piece of paper with a bunch of scribbles on it. This paper is called a legal memorandum. It told the phone companies that the president is the decider guy and that he decided that illegally spying on Americans is OK with him and they should help him out.
B: But the phone companies have lots of lawyers. What did they say?
DtCLD: Apparently not much. The phone companies that helped Barney's dad got billions of dollars in contracts with the government. The one phone company that had good lawyers told the CEO that the legal memo was wrong, so that phone company did not help Barney's dad.
B: What happened to it?
DtCLD: That company lost its government contracts and the CEO went to jail.
B: So this legal memo must be pretty good.
DtCLD: Nobody knows. Other than Barney's dad and a few of his friends, no one has seen this memo. Of all the Senators and Congresspeople who have voted to give amnesty to the phone companies, almost none of them have read the memo and know the argument for the legality of the spying program.
B: Wow, Constitutional Law Dog, you are kidding me. The Congress does not know what the government did, what the phone companies did, or the legal justification for any of it yet they are voting to say it is OK with them. How did the government get away with that?
DtCLD: Well, Barney told me that his dad always passes out a lot of treats. Pretzels for everyone, and Barney says that they are pretty good. And when that doesn't work, he has this thing he calls strategery. In this case he will call the people who don't support amnesty bad names and yell at them for not wearing flag pins.
B: That strategery sure is powerful stuff.
DtCLD: It sure is.
B: Well Devon, do you have any parting remarks?
DtCLD: Yes, I'm an Italian Greyhound and I'm too dumb to be housebroken, yet I understand that Barney's dad needs congressional oversight of his activities. How is it I can figure this out but the congressional Blue Dogs cannot?