Aug 12 2007

Judicial Abuse Of Power During Wartime

Published by at 10:16 am under All General Discussions,FISA-NSA

The liberal media outlets are so mind washed about the evil Bush they have focused their entire complaint about the NSA-FISA issue around Presidential abuse of power. In this scenario a President (represented by President Bush) goes beyond his constitutional powers and beyond the permission of the American people to grab power to enforce his own warped views on the nation. This selfish act is especially egregious during a time of war when national security should trump personal desires. The good of the many, outweighing the good of the few or the one – Star Trek theory of a good society.

But what we are learning about the latest FISA laws passed by Congress is it was not a case of Presidential abuse of power but we had a serious case of Judicial abuse of power:

At a closed-door briefing in mid-July, senior intelligence officials startled lawmakers with some troubling news. American eavesdroppers were collecting just 25 percent of the foreign-based communications they had been receiving a few months earlier.

The prelude to approval of the plan occurred in January, when the administration agreed to put the wiretapping program under the oversight of the Foreign Intelligence Surveillance Court. The court is charged with guarding against governmental spying abuses. Officials say one judge issued a ruling in January that allowed the administration to continue the program under the court’s supervision.

A ruling a month or two later — the judge who made it and its exact timing are not clear — restricted the government’s ability to intercept foreign-to-foreign communications passing through telecommunication “switches” on American soil.

Here we have one person trying to force his/her personal views on the nation – this being the view that terrorist communications overseas, during a time of war, require a warrant by a US court. I can see the implications now. Forces have identified an Iraqi cell who are in contact with Iranian forces providing them explosive devices and the military can snoop on their communications to take down an IED smuggling ring in Iraq. But all of a sudden the word comes down we cannot get the intel because we now have to go to some judge in DC to get permission to listen in on these terrorists.

This is the EXACT problem we face, since the NSA is a military unit supporting our troops in the field as well as our local security here in the US in conjunction with the FBI. So one out of control person in a key position abused their position by circumventing the American people in the decision process. Instead of determining what we would support, this person decided to claim what would be best for all of us through their own warped view of reality.

FISA came into existence because of abuse of power by the executive branch. This abuse of power was highlighted by the Nixon administration, but had been ongoing through many of the previous administrations. Today we saw FISA updates put into law because of the abuse of another federal official – a FISA Judge. FIS Court judges are Federal Judges performing double duty on the FIS Court. I am sure the selection process for FIS Court judges is neutral and random, so that both liberal and conservative judges end up being selected. Whether it was a liberal who abused the judicial power or a libertarian (I would suggest it was more likely the former, but you never know) the fact is this person tried to grab power and influence this country’s national defense through fiat instead of democratic debate. We must realize that while President’s can do a lot in abusing their powers, so can others in the government. This episode exemplifies the damage one out of control federal officer can do when they try to rewrite the rules.

Bush had allowed the FIS Court a larger role in determining who, in contact with a terrorist overseas, was to be monitored and investigated. In return for his efforts to reach out to the Judicial branch one of its members went out of control and abused their role. So much so the Congress and Administration had to act to ensure this kind of damage cannot be repeated. This is no different from when FISA was enacted, to establish boundaries around administration officials so they could not circumvent the rules. Democrats need to be very careful which side they take on this issue. To be against the administration on this is pretty much political suicide. I would expect a strong look into this renegade judge to determine his/her qualifications to hold such a powerful position.

Note: all the ‘fear mongering” is not that we are at risk of attack by al-Qaeda (that is obvious), it is the line that this President is abusing the law to spy on Americans for non-defense reasons. When someone produces one iota of evidence Bush is using the NSA-FISA for non-defense purposes then we will have moved from liberal dramatic fiction to something serious. Until then, liberal dramatic fiction will ALWAYS pale in comparison to the reality we have faced since 9-11 – and before.

Hat tip to Capt Ed Morrissey on finding this story.

Update: The Washington Post notes something else that Americans need to know – the new paradigm around NSA and FISA is not new or unprecedented:

Yet both sides acknowledge that the administration’s resurrection of virtually unchecked Cold War-era power to surveil foreign targets without warrants may be only temporary. The law expires in 180 days, and Democrats, smarting from their political defeat, have promised to alter it with new legislation to be prepared next month, when Congress returns from its recess.

A lot of liberals question why we do not follow the Cold War model of deterence and containment. Well, for one thing that requires something called ‘verification’ – which implies intelligence gathering. The fact these powers are not new is going to make repealing them in 180 days impossible. If they are good for America today what would have changed in 180 days to say we are so much safer from attack we can pretend we don’t need to monitor terrorists overseas any more?

2 responses so far

2 Responses to “Judicial Abuse Of Power During Wartime”

  1. MerlinOS2 says:


    I tend to have a different view.

    From what I have read on this, in essence the Judge had their hands tied by the way the law was written and had to make the legal judgment they did based as a fact of law.

    The fault was the way the law itself was written years ago and how technology has changed the landscape.

    So I believe the system worked where the Judicial noted a fault in the law and the Executive and Legislative corrected the fault.

    I am more concerned with any law that restricts the constitutional powers of presidential wartime intelligence gathering, but I also temper that with the concept of the law being there for when a state of war does not exist.

  2. MerlinOS2 says:

    The world has changed.

    During WWII for example for international communication you were basically down to a few choices

    International phone calls which were expensive and had a small total call capacity they could support.

    Telegrams, again having limited bandwidth.

    Letters with all the delays involved

    International shortwave radio with the low reliability and security issues.

    Couriers to carry the message, again time consuming.

    In today’s environment, the choices of message routing are vast compared to then.

    In fact if you consider all the possibilities, it is almost a wonder that anyone could find a needle in that haystack.