"How did it come to pass that an opposition's measure of a president's foreign policy was all or nothing, success or "failure"? The answer is that the political absolutism now normal in Washington arrived at the moment--Nov. 7, 2000--that our politics subordinated even a war against terror to seizing the office of the presidency." - Daniel Henninger - WSJ 11/18/05
"the slovenliness of our language makes it easier for us to have foolish thoughts." - George Orwell

Tuesday, August 07, 2007

FISA and the Imperial Judiciary

What if a data packet could be purposely sent through the U.S. networks? What if Joe Blow in California and Joe Dunno in New York were having a conversation via cell phone or some other wireless communication device? What if the recent legislation passed before the kids in DC went on summer recess hadn’t been passed at all?

For one The NY Times editors and perhaps the FISA would be pleased with this turn of events, as the editors this morning made clear they don’t care for the president viewing his role in intelligence gathering as constitutional. FISA might be happy as a recent ruling protected foreign to foreign communications; so Mahmoud and Mustapha in Pakistan or elsewhere would be protected in their communications with each other while planning an attack in the U.S., unless of course as proscribed by the FISA court, a warrant were obtained.

If you read or have read Andrew C. McCarthy today at NRO you might wonder where exactly the Times and other Leftists get their constitutional knowledge in swatting at the presidents role?

All the hubbub and brouhaha made by the Times editors doesn’t change the facts, but it does change the “facts” as they possess the power of the presses and inappropriately influence public opinion and knowledge many times. This is most noticeable when you have read McCarthy and his mentions of the Times and Leftists in their hue and cry over NSA wiretaps as he points out that the concern should be with the FISA court and not the president:

“We should be equally affronted by the hypocrisy of congressional Democrats and the leftwing commentariat. It’s not national security or the “rule of law” they care about. It’s politics — plain, simple, and brass-knuckled. The calculation: If George W. Bush can be hurt a polling point or two (yes, there’s still room to go down) by posturing over law-breaking, it’s okay to roll the dice with our lives.”

For nearly two years since the New York Times blew the NSA’s warrantless-surveillance program, the Left has transfigured itself into a whirling dervish of indignation over President Bush’s imperious trampling of “the rule of law.” Why? Because he failed to comply with the letter of FISA, which purports in certain instances to require the chief executive — the only elected official in the United States responsible for protecting our nation from foreign threats — to seek permission from a federal judge before monitoring international enemy communications into or out of the United States.”

Of the recent ruling by the FISA court regarding foreign to foreign communications, McCarthy points to the four types of communications FISA regulates:

“(a) those involving a particular, known American citizen or permanent resident alien who is in the United States and has intentionally been targeted for monitoring, no matter whether the interception takes place inside or outside the United States;

(b) those involving someone inside the United States, even if that person has not been intentionally targeted, if the interception occurs within the United States;

(c) those in which all parties to the communication are located within the United States; and

(d) those rare contacts which are neither radio nor wire communications, “in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.”

Note as Mr. McCarthy points out that none of the above fit within the foreign to foreign communications. For the moment we can rest a little, but as McCarthy suggests that until FISA is ended and replaced with something more appropriate to our times; the imperials of the court will ultimately be the ones protecting us…

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