Now Playing: fisa is unconstitutional
There's a lot to mine from this Eric Lichtblau and Adam Liptak article in yesterday's New York Times, but try just this one little passage in which Duke Law School professor Curtis A. Bradley shows what he knows about the President's Constitutional authority:
"Before FISA," Professor Bradley said, "it may have been the case that the president had the authority to do this kind of surveillance. What the Department of Justice is trying to do is use the prior practice to support the present program when the present program is a violation of a duly enacted statute."Since it is taken for granted by everyone except terrorist-sympathizers that the President of the United States has a Constitutional authority as Commander in Chief to gather signals intelligence against the Islamofascist enemies of this country, it is impossible to agree that the Foreign Intelligence Surveillance Act (FISA) is Constitutional. How can the Congress pass a law that restricts one of the Executive's highest powers? That is an usurpation on two counts: on the first, the Legislative branch delimited a basic Presidential military power by statute, which is supposedly contrary to the separation of powers; on the second, that statute subjects the actions of the Executive to Judicial review, which is another blurring of the lines.
Professor Bradley concedes that it was FISA that was intended to strip away an authority the President already had and ---to anyone with a lick of common sense--- still has.
The only reason why this problem with FISA has gone unaddressed for more than a quarter-century is because it has almost never asserted itself. In the theoretical and bureaucratic worlds, this is solid policy. It makes politcians feel better about themselves. But when we are living in an age of global terrorism and global communications and travel, nonsense like FISA is self-destructive.
And let's not ignore the history of FISA. It was passed by a Democratic-controlled Congress and signed by the nauseating Jimmy Carter in 1978. It was a law intended as a rebuke to any imperial successors to Richard Nixon. As such, its potential as a tool in the hands of the Democratic Party has been wrongly reawakened off the buzz of these leaks and accusations.
Remember that Congress impeached, tried, and almost removed President Andrew Johnson after they had tried to strip away his Executive authority to simply fire a Cabinet member.
I don't know how it can be done, but FISA needs to get tossed. I hope the shysters are on the job right now.