FISA Update: The Legal Background and Misrepresentation

 With more and more news accounts again today misleadingly referring to “domestic spying program,” it’s worth turning, again, to Andrew C. McCarthy, a former federal prosecutor for the real history and legal context to the FISA debate. He notes that federal courts have consistently held that presidents maintained constitutional authority to conduct warrantless monitoring of hostile foreign agents, and both President Carter and President Clinton operated with that authority. And again, the program is of foreign surveillance.

From “Finally, a Surveillance Pass“:

The Constitution permits warrantless searches in exigencies far less consequential than protecting the nation against foreign attack. Indeed, highly intrusive searches of not only property (including computers with stored email) but also of American citizens crossing our borders have long been routine. Moreover, in marked contrast to Watergate era domestic spying abuses, the Bush administration briefed the relevant congressional leaders of both parties throughout the NSA program’s duration.

None of that mattered to privacy extremists and anti-Bush activists. Once the program was exposed, they slandered a vital effort to safeguard the nation as a “domestic spying” regime that targeted ordinary, law-abiding Americans. Their allies in Congress didn’t dare try to shut the program down, though, because they well knew those ordinary, law-abiding Americans — Americans who understood that 9/11 happened precisely because overseas terror masters used today’s communications networks to guide the activities of jihadists they’d embedded in our midst — want our intelligence community to conduct aggressive surveillance.

That, however, did not chagrin opponents. They did what they always do when democratic means are unpromising: they marched into court. And when suing the government proved frustrating because of standing requirements and state-secrets restrictions, they simply sued the telecoms.

Read the whole thing.


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