FISA Judges in an Uproar
The ongoing controversy on FISA and surveillance raises a number of issues that we will return to in this blog. For the moment, we'd like to make one point clear: despite recent moves that might give one a false impression, the FISA judges are no heroes and it's not just Bush that's the problem.
Today the Court's presiding judge requested a briefing from the Bush Administration on its domestic spying program. This follows the resignation in protest of one of the ten sitting members. Not only are the judges skeptical of the legality of the Bush policy, they are also clearly upset that the Administration thought that it could simply ignore the Court's authority. While they obviously have a reason to be angry, the fact that FISA judges are attacking the Administration for trampling on civil liberties amounts to one of the more absurd moments in the War on Terror. As discussed previously, the Court is the closest approximation in the American legal system to the Star Chamber. It operates in secret, can issue warrants for electronic surveillance that are unrestricted, highly intrusive, and apply anywhere in the world and to anyone. The Court's probable cause standard deviates sharply from the traditional law enforcement standard, and its decisions are final and unreviewable. Perhaps, the lack of appeal rights wouldn't be so troubling if in its 30 year history more than ONE warrant had been denied.
In other words, the FISA Court underscores the extent to which unchecked emergency powers have become routinized as part of our constitutional status quo. The judges themselves are participants in a larger legal framework which assumes that the U.S. is under permanent threat and that such necessity requires both secrecy and unlimited discretion. The actions of the Bushies may be technically illegal, but they are perfectly consistent with this constitutional spirit. The Administration is merely extending the logic of the current national security paradigm, and in a sense exposing the judges for what they are -- a rubber stamp justifying executive power and popular silence.
Today the Court's presiding judge requested a briefing from the Bush Administration on its domestic spying program. This follows the resignation in protest of one of the ten sitting members. Not only are the judges skeptical of the legality of the Bush policy, they are also clearly upset that the Administration thought that it could simply ignore the Court's authority. While they obviously have a reason to be angry, the fact that FISA judges are attacking the Administration for trampling on civil liberties amounts to one of the more absurd moments in the War on Terror. As discussed previously, the Court is the closest approximation in the American legal system to the Star Chamber. It operates in secret, can issue warrants for electronic surveillance that are unrestricted, highly intrusive, and apply anywhere in the world and to anyone. The Court's probable cause standard deviates sharply from the traditional law enforcement standard, and its decisions are final and unreviewable. Perhaps, the lack of appeal rights wouldn't be so troubling if in its 30 year history more than ONE warrant had been denied.
In other words, the FISA Court underscores the extent to which unchecked emergency powers have become routinized as part of our constitutional status quo. The judges themselves are participants in a larger legal framework which assumes that the U.S. is under permanent threat and that such necessity requires both secrecy and unlimited discretion. The actions of the Bushies may be technically illegal, but they are perfectly consistent with this constitutional spirit. The Administration is merely extending the logic of the current national security paradigm, and in a sense exposing the judges for what they are -- a rubber stamp justifying executive power and popular silence.
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