The "Drum"beat of Derangement

Kevin Drum in Washington Monthly yesterday:

AMENDING FISA....Here's another point related to General Hayden's admission today that the NSA's domestic spying program isn't some kind of dazzling high tech black op, but merely garden variety wiretapping that was done outside normal FISA channels because NSA couldn't meet the "probable cause" standard normally needed to get a warrant issued.

Administration apologists have argued that the White House couldn't seek congressional approval for this program because it utilized super advanced technology that we couldn't risk exposing to al-Qaeda. Even in secret session, they've suggested, Congress is a sieve and the bad guys would have found out what we were up to.

But now we know that's not true. This was just ordinary call monitoring, according to General Hayden, and the only problem was that both FISA and the attorney general required a standard of evidence they couldn't meet before issuing a warrant. In other words, the only change necessary to make this program legal was an amendment to FISA modifying the circumstances necessary to issue certain kinds of warrants. This would have tipped off terrorists to nothing.

So why didn't they ask Congress for that change? It certainly would have passed easily. The Patriot Act passed 99-1, after all. Hell, based on what I know about the program, I probably would have voted to approve it as long as it had some reasonable boundaries.
So there must be more to this. But what?

Well since you asked, Mr. Drum, here it is:

On the question of, "Why didn’t they ask Congress for a change to FISA?" One answer is simply, They weren’t required to ask Congress for a change to FISA. The President doesn't need permission from Congress or FISA to do anything involving intelligence. Says Who? Lots of folks, including the court created by the FISA statute.

Robert F. Turner, co-founder of the Center for National Security Law at the University of Virginia School of Law explains:

For nearly 200 years it was understood by all three branches that intelligence collection--especially in wartime--was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of "executive power" to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947.

Space does not permit a discussion here of the congressional lawbreaking that took place in the wake of the Vietnam War. It is enough to observe that the Constitution is the highest law of the land, and when Congress attempts to usurp powers granted to the president, its members betray their oath of office. In certain cases, such as the War Powers Resolution and the Foreign Intelligence Surveillance Act, it might well have crossed that line.

Keep in mind that while the Carter administration asked Congress to enact the FISA statute in 1978, Attorney General Griffin Bell emphasized that the law "does not take away the power of the president under the Constitution." And in 1994, when the Clinton administration invited Congress to expand FISA to cover physical as well as electronic searches, the associate attorney general testified: "Our seeking legislation in no way should suggest that we do not believe we have inherent authority" under the Constitution. "We do," she concluded.

Even Carter’s Attorney General and Clinton’s associate attorney general recognized the Constitutional authority granted to the president. Maybe they should have added the caveat: Democratic President.

There’s more:

I'm not saying that what the president authorized was unquestionably lawful. The Supreme Court in the 1972 "Keith case" held that a warrant was required for national security wiretaps involving purely domestic targets, but expressly distinguished the case from one involving wiretapping "foreign powers" or their agents in this country. In the 1980 Truong case, the Fourth U.S. Circuit Court of Appeals upheld the warrantless surveillance of a foreign power, its agent or collaborators (including U.S. citizens) when the "primary purpose" of the intercepts was for "foreign intelligence" rather than law enforcement purposes. Every court of appeals that has considered the issue has upheld an inherent presidential power to conduct warrantless foreign intelligence searches; and in 2002 the U.S. Foreign Intelligence Surveillance Court of Review, created by the FISA statute, accepted that "the president does have that authority" and noted "FISA could not encroach on the president's constitutional power."

(Above emphasis mine)

Other possible reasons the President didn't involve Congress can be found here , here, here, here, here and here.

We've done it this way for over 200 years. It was good enough for Carter, It was good enough for Clinton, but now just because it's Bush, it's somehow criminal. Now, while you may not like my answer to your question, I think we can probably call it even. I didn't much like the way in which it was asked. It assumes guilt simply because the president is Republican, without providing evidence to support the charge.

By the way, what exactly were the "reasonable boundaries" required of Carter and Clinton?
I'm just asking.

Tags: Politics,NSA, Eavesdropping,
Terrorism, Spying, Homeland Security, Civil Liberties, FISA