That damn wiretapping fiasco

Ok, I feel compelled to rant. Not because I still haven't finished my draft, really, I swear.

The president's wiretapping is either illegal, or the Foreign Intelligence Surveillance Act (FISA) is unconstitutional. Congress made an explicit declaration of its intent with respect to clandestine wiretapping with the original passage of FISA and then reaffirmed it in the specific context of combatting terrorism with the amendments they made to FISA in the Patriot Act. The Authorization of the Use of Military Force (AUMF) does not eclipse FISA because FISA is explicit on this issue whereas the AUMF is not and clear legislative statements trump inferences. If Congress has specifically forbidden the president to act, then the president can legally ignore that prohibition only if it infringes on his exclusive constitutional powers, which I believe would then make FISA itself unconstitutional for daring to infringe upon the exclusive domain of another branch of government.

The president has asserted that FISA "does not apply," but it is not within the power of the president to decide whether or not a law applies to certain circumstances, that is the excusive domain of the court. The president may only assert that congress has overstepped its authority and then deliberately ignore the law, but just because the president says or asserts something does not make it true; only the court can decide when and where the law applies.

So the president's claim then boils down to the constitutionality of FISA with respect to his exclusive powers as Commander in Chief (CiC). If warrantless wiretapping is "inherent" to the CiC, then certainly FISA could not infringe upon that power, but this application of the role of CiC is itself extremely suspect if not outright unconstitutional. The claim that the CiC can suspend the 4th Amendment's protection against against unreasonable searches and seizures, absent the direst of emergencies and immediate dangers to the security of the country, is supported by no law. Given a clear indication of an immanent terrorist attack, the president could certainly claim vast powers to intervene and prevent that event, but trying to assert that the US has been in immediate danger of a terrorist attack, continuously, for FOUR YEARS exceeds all claims of reasonability. FISA grants the president 15 days after a catastrophe to gather whatever information he wants without oversight, and allows him to ask for extensions, but FISA requires that oversight eventually be applied.

Basically, as I see it, this has little to do with legality and everything to do with WILL. Bush has overstepped his powers by asserting a radical interpretation of his power as CiC. This is a huge power grab by the Executive branch. The "debate" is whether or not the Legislative branch will let him get away with it.

What bugs me about the coverage of this fiasco is that few seem to be thinking and commenting about what little we do know. We know that the software used to conduct this surveilance listens to calls to and from certain countries and the US, only recording those calls that set off certain warnings. Traditional wiretapping involves listening in on a known suspect's communications in hopes of finding evidence. This new application listens in on everyone's communications in hopes of finding suspects. What is to prevent this program from being expanded to pure domestic-domestic calls? All that would be required are a few program modifications, nobody need ever know. And without oversight nobody ever will.



Ok, glad to have that off my chest, please feel free to weigh in on this if you are so inclined.