More on FISA

It seems I'm at risk of losing (even my small-l) libertarian credentials on the issue of warrantless wiretapping of terrorists. For example, Julian Sanchez writes at Reason:

Like Bill Murray's hapless weatherman in Groundhog Day, America is locked in a perpetual September 12, 2001. How else to explain this weekend's frenzied passage of a sweeping amendment to the Foreign Intelligence Surveillance Act (FISA), effectively authorizing the program of extrajudicial wiretaps first approved in secret by President George W. Bush shortly after the terrorist attacks of 2001? How else to make sense of a Democratic Congress capitulating to the demands of a wildly unpopular executive for yet another expansion of government surveillance powers, mere months after the disclosure of the rampant abuses that followed the last such expansion?
Gosh, I feel abashed! But while Julian derides a "September 12" mentality, I'm pretty sure I prefer it to the blissful ignorance of the September 10 mentality.

And Jacob Sullum, who I like quite a bit, is also miffed:

When you talk to your mother on the phone, do you have a reasonable expectation of privacy? I thought I did, but apparently I don't—at least, not anymore, because my mother lives in Jerusalem.

Under the inaptly named Protect America Act of 2007, which President Bush signed into law on Sunday, the federal government no longer needs a warrant to eavesdrop on phone calls or read email messages between people in the U.S. and people in other countries. Unless the courts overturn this law or Congress declines to renew it when it expires in six months, Americans will have no legally enforceable privacy rights that protect the content of their international communications.

And then I look at today's WSJ editorial:

To hear the critics tell it, the warrantless wiretapping law passed by Congress this weekend is an immoral license for a mad President Bush and his spymasters to eavesdrop on all Americans. [Yup, see above.] For those willing to believe such things, mere facts don't matter. But for anyone still amenable to reason, the deal is worth parsing for its national security precedents, good and bad. The next Democratic President might be grateful.

The good news is that the new law will at least allow the National Security Agency to monitor terrorist communications again. That ability has been severely limited since January, when Mr. Bush agreed to put the wiretap program under the supervision of a special court created by the 1978 Foreign Intelligence Surveillance Act (FISA). The new law provides a six-month fix to the outdated FISA provision that had defined even foreign-to-foreign calls as subject to a U.S. judicial warrant.

There's also a alarm-defusing op-ed in the LA Times from David B. Rivkin Jr. and Lee A. Casey.
The ink is still wet on the Foreign Intelligence Surveillance Act amendments, adopted by Congress in the final hours before its August recess, and already this six-month-long compromise legislation has drawn strident criticisms [Yup, see above.] from civil libertarians, who believe that it has given the president too much power.

The truth, however, is that the amendments mostly return to FISA's original intent, to set requirements for judicial review of domestic wiretaps while allowing the interception of foreign communications without a warrant or other judicial order.

But neither goes as far as Andrew C. McCarthy, writing at National Review; the problem is the FISA legislation itself, which has no Constitional grounding.
FISA doesn't need a fix. It needs a decent burial. Like the wall [the pre-9/11 legal barrier erected between intelligence and law enforcement investigations], it's a bad idea that keeps proving itself to be a worse idea. We shouldn't need another 9/11 before we open our eyes to the undeniable.

Finally, for some belated pyrotechnics, you might want to check out this here NYT editorial (predictably hysterical about "yet another unnecessary and dangerous expansion of President Bush's powers") and the reply from Congressman Pete Hoesktra (who's a little pissed at what he deems "the scare tactics being perpetuated by the Times, which has knowingly and willfully misrepresented the new law to scare the American people.") [These last two links via Katie's Mom.]

All in all, enough links to give you both sides. I'd say "make up your own mind," but I'm pretty sure you, good reader, do not need my advice or permission to do that.


Last Modified 2012-10-17 3:48 PM EDT