an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Meanwhile, Back at the National Surveillance State . . .
The Bush Administration has now decided that it is not bound by its earlier promise to use the FISA court to obtain warrants for domestic surveillance, the New York Times reports. As you may recall, in January, the Administration attempted to defuse the crisis over the constitutionality of its spying on United States persons by agreeing to submit requests for such surveillance to the FISA court under a novel procedure whose terms it did not fully disclose.
Now, it seems that even this is not enough for our Dear Leader. Taking a cue from the North Korean playbook (make an agreement, then renege at your leisure), he has announced a new diktat through his director of national intelligence, Michael McConnell: Although the President currently abides by the warrant requirement, he has inherent constitutional authority to disregard FISA at any time and at his sole discretion. He merely deigns to apply for warrants at his pleasure. This is, of course, the implausible argument that got him into legal hot water in the first place.
Perhaps the President thinks that no one will notice that he has gone back on his promise to maintain some semblance of the rule of law. Sorry, we noticed.
And, in a new entrant for the chutzpah award, the Administration is simultaneously asking Congress for a revamping of FISA to give the President added powers while refusing to explain exactly what it has been doing or what it would be able to do under the new bill.
The Administration, after reneging on its previous commitments to abide by FISA, is now asking Congress to trust it. After what it has done, would you trust this Administration? Posted
by JB [link]
When exactly did the President promise to use FISA warrants to conduct telecommunications surveillance on al Qaeda and its allies?
Reportedly Justice convinced the FISC to essentially ratify the NSA Terrorist Surveillance Program. That is all.
In any case, this "revelation" sounds more like a tactic to pressure Congress into updating FISA when many politicians may wish to punt on the issue after the FISC court deal.
I'm as distrustful of President bush as anyone, but I don't think there is really anything new in this story. Even when AG Gonzales announced the new FISA warrant procedure, he told Congress the President had not given up his claim that he possesses constitutional authority to ignore FISA if he chooses.
Of course, Bush and his lawyers are still quite afraid to argue that claim forthrightly in court.
In any case, this "revelation" sounds more like a tactic to pressure Congress into updating FISA....
No. It's just the maladministration's usual middle-finger hand wave.
"Bart" forgets the authorita... -- umm, sorry, "Republicans" -- aren't running the show any more. No more "USA PATRIOT" 'grab bags' for whatever sh*te the Republicans need to 'fix' (not to mention the little 'unconfirmed interim appointments' kerfluffle)....