FISA, Terrorist Surveillance and the stupidity of Congress

Andy McCarthy rails against Congress' inquisition against the DoJ regarding the terrorist surveillance program revealed by the NY Times. The Monk is certain that the DoJ's efforts to placate the unfounded fears of civil libertarians by subjecting the program to the FISA Court's oversight will fail. Both the Democratic Congress, which has been up in arms about the program since the Times revealed it, and the FISA Court itself will likely work against the legitimate aims of the program. This is because the FISA Court is now headed by left-wing judge Colleen Kollar-Kotelly, who immediately agreed to disclose classified orders to the Congress if the executive and legislature could come to agreement on the disclosure. Naturally, the executive caved.

David Rivkin and Lee Casey think that bringing the program within FISA is good. Their logic depends upon the President's determination to uphold the executive's inherent power to act against the enemy in wartime:

Thus, bringing the TSP within FISA is a good deal. It gives the government something that it did not have before — a clear shot at obtaining admissible evidence in addition to valuable information about al Qaeda’s plans and organization — at little or no cost. If the new program is ultimately determined to have been too innovative, and is held to be inconsistent with FISA’s statutory text or the Constitution itself, the president can still fall back on his inherent constitutional authority to order electronic surveillance of the enemy in wartime, regardless of whether the particular agent is located in or out of the United States. This authority, which has been claimed by presidents since Lincoln’s day, was recognized by the FISA Court’s own appellate panel and is grounded in the president’s role as chief executive and commander-in-chief. It cannot be eliminated by Congress — in FISA or any other statute.

The question becomes, what if the president does not believe we face a war, or wants to handle terrorists with kid gloves? The NY Times will have blood on its hands over this.