Wednesday, December 28, 2005

FISA run-around

The Foreign Intelligence Surveillance Act provides the procedures for judicial authorization and oversight of the electronic surveillance of people who may be involved in terrorism. It provides for after-the-fact authorization, namely, the government can approach the court upto 72 hours after starting surveillance. For whatever reason, President Bush disregarded this law. A NY Times Op-Ed(sorry, subscription required) by David B. Rivkin and Lee A. Casey (lawyers who served in the Justice Department in the Reagan and George H. W. Bush administrations) defends the President's actions.

The Rivkin-Casey arguments are:

1. The intelligence is being collected to prevent attacks on America, and not for criminal prosecutions. The Fourth Amendment applies only to criminal prosecutions.

2. FISA is inadequate and cannot handle situations where "move and countermove ...are counted in minutes and seconds".

3. The Congress does not have the constitutional authority to tie the President's hands anyway.

4. The Congressional authorization after 9/11 to use necessary and appropriate force against the terrorists gives the President the authority he needs (just in case you don't agree with point #3 above).

5. All that the President is doing is to exercise the sufficient authority provided by the Constitution to protect the national interests.

My friend Julio Cartaya replied to this as follows:

This article is political propaganda: the writers stress the need to expedite the process of collecting and using intelligence, but fail to mention there is a legally established procedure: the administration may collect and use the information, then has up to 72 hours to present its case to the special court for review and approval.

An innocent omission? I don't believe it for a moment: these are lawyers arguing a point of view as part of a P.R. campaign to ease pressure on Congress to deal with this administration ignoring laws that have been on the books for years, and they know it. For a president to authorize breaking a law is not a trivial matter (even if done in consultation with selected members of Congress), and they're trying to avoid a public debate of this very serious issue.

I am also partial: I have long disagreed with many of President Bush decisions, and doubted these decisions will turn out to be in the best interest of the American people; I believe we have seen too much rush to judgment, too little focus on consensus or bipartisanship, a set of changing and blurry motivations for war, duplicitous moral standards how to carry this war forward, poor policy execution, and a much too political use of the presidential powers.

I may be wrong and blinded by mistrust. The intent may be to streamline, not to circumvent. This president may be fighting to keep America safe in the best way he knows. He may be asking us to give his administration exceptional powers, just to match the capabilities of an exceptional enemy of our country.

Regardless of motivation, the effect is still the same: the rule of law is treated as an inconvenience that can only be tolerated on sunny days, and this administration has engaged in all kinds of legal contortions to justify torture, indefinite detentions, use of public funds for their own political benefit, keeping a veil of secrecy over the operation of the executive branch, and now ignoring a fairly explicit procedure cast into law by Congress. What is at stake is not just the 4th Amendment, but the very idea of having separation of powers and a Constitution and sticking with them through good and bad times: if  an administration has the privilege to choose which parts of the law are inconvenient and may be ignored, why bother having laws at all?

Ancient Greeks experimented with the idea of choosing a tyrant to streamline the decision-making process in times of war. Their experiment failed so miserably, that the word tyrant changed meanings from the original "sole ruler" to signify "someone who has absolute power and exerts it brutally and oppressively".

To refer to the original meaning, one speaks nowadays of  "benevolent tyrants". Using that language here I will state what concerns me to the extreme: giving up exceptional powers to a benevolent tyrant is no guarantee that future tyrants using those powers will remain benevolent. The Founding Fathers knew this and left us a document that separates powers and places strict limits to the branches of government holding those powers.

President Bush swore to uphold this document, and the gentlemen that authored the article are now asking us on his behalf to consider he had to make an exception. I say no.

I say amen to that!