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devil duck


In the late 1970's, Congress passed the Foreign Intelligence Surveillance Act to specify the procedures necessary in order to spy on foreigners in, or dealing with people in, the U.S. In a nutshell, there's a special court whose only job is to review requests for foreign-intelligence-related search warrants; since this is their only job, they presumably won't have a massive backlog like an ordinary court, and can grant warrants quickly. For really urgent cases, the government can start surveillance for a certain period (I think it's 3 days normally, or 60 days in the aftermath of an attack on the U.S.) while waiting for approval of a warrant. Unlike ordinary courts, the FISA court hears only from one side, so there's no delay for counter-motions, no calling or cross-examining of witnesses, etc.. In its first twenty years of operation, it is believed to have turned down something like three (3) requests for search warrants. Even in these few situations, the government can appeal the decision to the FISA Appeals Court, which (as you might expect) had something like three (3) cases on its docket in twenty years.

After 9/11, the USA PATRIOT act, pushed through in a hurry so most members of Congress had no idea what they were voting on, significantly weakened the act, allowing the government much wider latitude for surveillance and giving the FISA court much less oversight ability. Even after weakening FISA, the Bush administration decided that it didn't feel like following the procedures set out in that act, so they initiated a wiretapping program that applied to a number of Americans (we don't know how many; that's classified) without a warrant, without an application for a warrant, with no oversight whatsoever, just to prove that he wasn't bound by the law he had helped to write.

Last month, in the face of public outcry against the apparently-illegal warrantless wiretapping program, the Democratic-led Congress significantly weakened FISA again to largely legalize that program. This article points out that, again pushing through legislation quickly so most members weren't sure what they were voting on, they may have weakened FISA even more than they realized. Meanwhile, the Administration continues to maintain that they're not obligated to actually obey the law that they helped to write:

Bush administration officials have already signaled that, in their view, the president retains his constitutional authority to do whatever it takes to protect the country, regardless of any action Congress takes. At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress.

At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, “is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president’s Article II powers trump any ability by Congress to regulate the collection of foreign intelligence.”