December 22, 2005
FISA Court Could Disband After Briefing
The FISA Court in the center of the Bush/NSA surveillance kerfluffle just got interesting, as the presiding judge is apparently setting up a briefing for her fellow judges next month, according to the Washington Post.
The presiding judge of a secret court that oversees government surveillance in espionage and terrorism cases is arranging a classified briefing for her fellow judges to address their concerns about the legality of President Bush's domestic spying program, according to several intelligence and government sources.
Is it just my reading of this passage, or does this article seem to suggest that presiding judge Colleen Kollar-Kotelly—attempting to assuage their concerns, as the passage states—has knowledge of the Bush executive order and it's legal justifications, and buys into it enough to sponsor a briefing for other FISA judges?
It is also interesting to note that “protest resignation” of Judge James Robertson occurred before the briefing, lending some degree of credibility to the theory that his divorce from the FISA court was political in nature.
Among the more interesting bits of information in this WaPo article is how the FISA judges could chose to react after the briefing, which is expected to be made by NSA and Justice Department attorneys.
The judges could, depending on their level of satisfaction with the answers, demand that the Justice Department produce proof that previous wiretaps were not tainted, according to government officials knowledgeable about the FISA court. Warrants obtained through secret surveillance could be thrown into question. One judge, speaking on the condition of anonymity, also said members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass the court.
Bold in the above is mine.
I would think that the step of disbanding the court would prove to be an emphatic acknowledgement of the shortcomings of the FISA law itself, and would be seen as an affirmation of the Article II powers inherent to the Office of the President.
If this is the final decision of the court—and at this point, it is simply impossible to tell—it will have to be seen as a huge blow to the credibility of the “impeach him now, ask questions later” faction of the Democratic Party running in the 2006 elections, and to the Jimmy Carter-era “Dazed and Malaised” Congress that brought FISA into existence.
CY opined:
"Is it just my reading of this passage, or does this article seem to suggest that presiding judge Colleen Kollar-Kotelly—attempting to assuage their concerns, as the passage states—has knowledge of the Bush executive order and it's legal justifications, and buys into it enough to sponsor a briefing for other FISA judges?"
It is just your reading. Equally likely is her concern that the President has overstepped his authority. But given your love for the all powerful executive (though not likely in a Democratic administration)that wouldn't occur to you.
Time will tell.
Posted by: ArthurStone at December 22, 2005 10:34 AMWhy am I not surprised by Artie's bonehead response to CY's opinion?
Hey Artie! Have you bothered to actually read the legal views on this issue expressed by a wide variety of courts, including the U.S. Supreme Court? How is it that all of these courts have ruled in favor of the President's authority when it comes to tasking the Intelligence surveillance organization - The National Security Agency - to target foreign and international communications known to have ties to al Qaeda and other terrorist entities?
I am really doubting that you have a clue about the Law or legal precedent. It appears to me and others that you are just a "hot air machine."
Popcorn, anyone?
Posted by: Retired Spy at December 22, 2005 10:52 AMEven ignoring the Legal aspect, how about just Common Sense? There is no real infringment on our rights (here comes the complaints about the 4th). The NSA can get better intel to keep us safer, it is being monitered by legal experts a lot more experienced and smarter than I am. And who knows, we may stop a bad guy or two.
Posted by: Retired Navy at December 22, 2005 11:20 AM"Equally likely is her concern that the President has overstepped his authority"
Arthur, were you the slightest bit concerned when this was transpiring?
"The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."
"It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."
If the answer is, "No,", then you need to fold up your plastic outrage and put it into your back pocket for the time being.
Posted by: Old Soldier at December 22, 2005 12:05 PMthe US Constitution protects us from UNreasonable searches.
REASONABLE ones made by the govt are A-OK.
and if intercepts target foreign powers/agents and are NOT used for evidence in a court - but only for military action, then the CinC can order them wiothout anyone else's approval.
Even FISA only says that the pres must INFORM the USA AG and get concurrence and inform Congressional leadership. They do NOT have veto over the pres.
Posted by: reliapundit at December 22, 2005 12:10 PMYou know, it might not be a bad idea to look at the body of Judge Kollar-Kotelly's work before trying to guess what she's saying. She's not exactly a shill for Executive power. Check out her ruling on lawyer access to Guantanamo prisoners.
Posted by: CharleyCarp at December 22, 2005 12:12 PMWill any kind of action be taken agains that traitor who resigned from the court? It seems to me that he could be prosecuted under the Patriot Act. It may not be fair to label him en enemy combatant but certainly his actions give comfort to the enemy.
Posted by: Smithy at December 22, 2005 12:14 PMEqually likely is her concern that the President has overstepped his authority.
"Equally likely" or wishful thinking?
But given your love for the all powerful executive (though not likely in a Democratic administration)that wouldn't occur to you.
But given Artie's almost pathological hatred of Bush (a trait that will ultimately be the democrats' undoing) the idea that this is all just a another political stunt wouldn't occur to him.
Time will tell
Yes it will with the most likely outcome being that this "scandal" will go the way of every other "scandal" drummed up by the donks.
Bush unscathed and the democrats looking like fools. (again)
Posted by: Elephant Man at December 24, 2005 10:12 AMIf you all don't think he would be impeached if we had an independent counsel law, you're crazy. The only reason he gets away unscathed is because Republicans control both houses of Congress. God save the President if Dems capture the House next election cycle. Also, it is of no moment to me that a prior president (republican or democrat) asserted the same authority - it is a separation of powers issue, not a political one. Presidents have a prediliction, if not an obligation, to protect the powers of the Presidency.
Posted by: Congress' Pocket at December 28, 2005 06:39 PMCongress, you keep popping around under different names, trying to appear as if you are more than one poster. That is highly dishonest. Consider yourself banned.
Posted by: Confederate Yankee at December 28, 2005 06:43 PM
