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January 15, 2009

FISA Court to Rule Wireless Surveillance Was Legal
Correction: Nope, Decision Concerns Structure Created by 2007 Congressional Act, Not Wiretaps on Presidential Authority Alone

Of course it is. Obama's about to become President and we can't have a Democratic president shackled the way Bush was.

Heck, if a terrorist attack occurred, Obama might be blamed for it. And we can't have that blame falling on The One.

A federal intelligence court, in a rare public opinion, is expected to issue a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a court order, even when Americans’ private communications may be involved, according to a person with knowledge of the opinion.

The court decision, made in December by the Foreign Intelligence Surveillance Court of Review, is expected to be disclosed as early as Thursday in an unclassified, redacted form, the person said. The review court has issued only two other rulings in its 30-year history.

The decision marks the first time since the disclosure of the National Security Agency’s warrantless eavesdropping program three years ago that an appellate court has addressed the constitutionality of the federal government’s wiretapping powers. In validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has constitutional authority to act without specific court approval in ordering national security eavesdropping.

The appeals court is expected to uphold a secret ruling issued last year by the intelligence court that it oversees, known as the Foreign Intelligence Surveillance, or FISA, court. In that initial opinion, the secret court found that Congress had acted within its authority in August of 2007 when it passed a hotly debated law known as the Protect America Act, which gave the executive branch broad power to eavesdrop on international communications, according to the person familiar with the ruling.

I guess my snark about questioning the timing is a bit paranoid. But this is a a very rare public ruling from a court which usually delivers its findings secretly. Can I question the open nature of the ruling, clearing the path for Obama to do what Bush did without challenge?

There's this, of course:

Barack Obama, then a United States senator, was highly critical of the presidential wiretapping power claimed by Mr. Bush, and threatened to filibuster the final bill. But he ultimately voted for it, angering some of his liberal supporters. His administration is expected to examine possible changes in wiretapping law and operations, a review that will probably be affected by the findings of the FISA appeals court.

Among those liberal supporters angered? The New York Times, which argued passionately and quite wrongly this was all terribly, plainly illegal.

Which now reports this story, failing to note its own error.

I once again renew my charge of blackmail against the liberals and the MSM: Either put our boy in office, or we'll cripple America's ability to defend itself against terrorism. Our boy, or thousands dead. You choose.

Correction: Gabriel writes:

In point of fact, the decision won't be on whether the warrantless wiretapping treasonously exposed by the NY Times in December 2005 is or was legal. The decision is about whether Congress had the authority in August 2007 to pass legislation amending FISA which would make similar programs from that point going forward legal. Despite Ed Morrissey's assertion that the ruling will implicitly support the scope of the President's authority to conduct terrorist surveillance, presidential authority supplemented by the authorization of Congress (e.g. the August 2007 amendment to FISA) is manifestly different from presidential authority on a subject for which Congress has already spoken in the contrary (the original FISA). Remember Youngstown?

The Youngstown reference is to the steel seizure case, where Justice Jackson (IIRC) elaborated a three-category analysis of war powers. Basically--

1) the president acting against Congress' express legally-promulgated will, in which case his war powers are at their weakest, as he has his inherent power but not a dollop of power Congress can bestow to him;

2) the President acting with Congress' express authorization, in which case the President's war powers are at their strongest, as he has all of his inherent power plus every dollop of additional power Congress can constitutionally grant him;

and 3) the "Twllight Zone" where the President acts in the face of Congressional silence, where his powers are somewhat middling; he relies on his own power, plus, I guess, that power he can exert given Congressional inaction.

The ruling is blessing a Category 2 situation (Congress authorizing the President). Bush's previous executive-only wiretapping was Category 3, the "twilight zone" situation, not apparently addressed by this ruling.

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posted by Ace at 01:37 PM

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