Thursday, December 22, 2005

FISA: It's Everywhere You Want To Be

FISA seems to be one of the big buzzwords on the lips of many pundits and media types these days. The NYT had run with a story that was based on a leak of classified information that the US was conducting surveillance on certain communications. The implicit message of those articles was that the President was committing a criminal violation of federal law and potentially the US Constitution.

The Administration hit back hard in press conferences and speeches saying that it was justified and authorized to take such actions under the law.

That hasn't stopped some from claiming that the President acted illegally. Is this based on facts and the law, or on their opinion. I think that its more of the latter than the former.

Reasonable minds may differ over the law. In fact, while there are some folks who think that the President may have violated federal law - including Orin Kerr, others think that the President was entirely justified including John Schmidt, Jaime Gorelick, Andy McCarthy, and Mark Levin. Those first two names (Schmidt and Gorelick) were Clinton Administration officials who argued consistently during their term in office that the President had the powers that Bush is now being accused of using illegally. McCarthy and Levin both argue that the President was following a consistent and legal policy that has been in place for more than 20 years and that they operated under a legal interpretation of the law that permitted the kinds of warrantless searches on communications.

These legal questions cross party lines and focus on civil liberties. Can the President operate under his authority to protect and defend the US from foreign threats - including terrorist groups - by monitoring electronic communications between terrorists outside the US and those operating within our borders. This question has serious consequences. If the President is limited in his ability to conduct warrantless searches on those communications, even if one of the parties is a US citizen, the real and distinct possibility that a terrorist could exploit this loophole grows significantly.

Confederate Yankee has more on the possibility that the FISA court may simply disband in the new year since the President has the authority to conduct warrantless searches.

Instapundit, Volokh Conspiracy and LawDork have all been covering the subject.

Sister Toldjah reports the fact that the Clinton Administration utilized warrantless searches on communications and other physical searches in wholly domestic situations. No such uproar and call for Congressional investigations ensued. Stop the ACLU is reporting that the ACLU is trying to release all kinds of information relating to the policies and procedures involved in the warrantless search program.

Others noting the kerfuffle are Dean Esmay and Bryan Preston.

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