Hamilton, Madison, and Jay

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Sunday, February 10, 2008

Battleground Congress: Wiretapping Showdown

This week Congress is taking up the issue of revising the FISA Act, and things aren't looking good. The Left is trying to hamstring the president and our intelligence agencies, and those on the Right, like Arlen Specter, aren't helping matters as the editors of the Wall Street Journal observe:

The Senate takes up wiretapping of foreign terrorists this week, and the stakes couldn't be higher. Not only for the ability of our spooks to eavesdrop on al Qaeda, but also regarding Congressional and judicial intrusion into Presidential war powers. Some damage seems certain, but the issue is how much damage President Bush will accept.

The debate concerns an effort to revise the 1978 Foreign Intelligence Surveillance Act (FISA) to bless spying without a court order on terrorist communications that originate overseas but move through U.S. switching networks. We believe -- and appellate courts have stated -- that the President already has such authority under the Constitution. But the political left claims this is "illegal" under FISA, and Mr. Bush has agreed to work with Congress on a compromise.

Not long ago Democrats seemed ready to move a bipartisan bill passed by the Senate Intelligence Committee last autumn. But under pressure from the anti-antiterror left, they are now bending and will try to weaken the bill on the Senate floor. Given that the House is likely to pass something far worse, the Senate debate will determine how much the U.S. ties its own hands in the fight against terrorists.

By far the worst threat is an amendment from Senator Chris Dodd (D., Conn.) to deny legal immunity to telephone companies that cooperated with the government on these wiretaps after 9/11. The companies face multiple lawsuits, so a denial of even retrospective immunity would certainly lead to less such cooperation in the future. ...

As he so often does, Pennsylvania Republican Arlen Specter is also causing mischief. His amendment would give the companies immunity but only by substituting the feds as defendants. So instead of helping to dismiss these pernicious lawsuits, the man who invoked the precedent of Scottish law during Bill Clinton's impeachment trial suggests that these suits have merit and he wants taxpayers to pay to defend them.

An amendment from Dianne Feinstein (D., Calif.) would also complicate the immunity issue by forcing the companies to seek a FISA court determination that they acted in good faith. This is at the very least strange, given that Ms. Feinstein voted for the bipartisan bill in the Intelligence Committee, which declared that the companies had in fact "acted in good faith." She is abetting the left's goal of making all private actors believe they should never cooperate with their government without first getting court approval.

The White House has threatened a veto if these amendments pass, but there's reason to wonder if Mr. Bush would follow through. The President has already agreed to two temporary FISA fixes without telecom immunity, which has only emboldened Senate liberals to think he'll blink. ...

Which brings us to the larger problem with this entire exercise. Congress's overriding goal here is to further hamstring our intelligence war-fighters with legal rigidity and complexity, but to do so in a way that dodges its own oversight duties by passing the buck to FISA judges. White House lawyers know this is unconstitutional, but intelligence officials say it's more important to have Congress's blessing for these wiretaps. And because the telecom companies won't cooperate without immunity, Mr. Bush is being bullied into trading away some of his own power to get that immunity.

Mr. Bush would do better by future Presidents if he opposed the Wyden amendment, and any further concessions would amount to an abdication as Commander in Chief. He has the political high ground on this issue. If Congress does more harm, he should declare that to protect the country he'll use his Constitutional war powers to wiretap al Qaeda anyway and toss the issue squarely in the middle of the Presidential campaign.

I would love to see the Supreme Court step in with it's powers of judicial review to strike down the new, revised FISA law. Article II, Section 2 of the US Constitution makes it clearly explicit that the president is the commander-in-chief of the military. The intelligence agencies of the nation fall under his powers as president, and yes, that's even true for law enforcement intelliugence like that of the FBI. If Congress -- the Senate especially -- tries to make an end run around the Constitution, it will fall to the high court to strike it down.

If they opt out of addressing the issue, then we agree that the president should veto the bill, and then remind the Senate that intelligence is what keeps us from getting hit again. This asinine idea that the phone companies should face a lawsuit because they cooperated with the federal government is a scheme to kowtow the phone companies into not working with the government. Judges should be throwing these lawsuits out, not entertaining them.

And Senators like Dodd, Specter, and Feinstein should be ashamed of themselves for even playing politics with such an important issue. God knows where Senator Specter got the idea to replace the phone companies with the federal government. Thanks to a little known right called sovereign immunity the federal government can't be sued unless it agrees to the suit. (It has, in the past, agreed to some suits, such as tort cases, but it doesn't do it often. Frankly, if Senator Specter's amendment passes, the president should issue a statement that the government won't accept such suits.)

The simple fact of the matter is that the Congress wants to tie the hands of the government to protect the nation, and the way they're doing it is insane. With all due respect President Bush, if this bill hits your desk with these idiotic amendments in it, please veto it for the sake of the security of the nation.

Publius II


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