22 December 2005
Counter
Regarding FISA, I was presented with the Clinton red herring earlier today. In effect, saying that Clinton did what Bush did so it must be legal and constitutional. This argument came from a conservative I-kid-you-not. My first reply was to address the internal inconsistency: "just because someone else did it, doesn't make it legal" (is precedent based on actions or legal decisions?). After quick research, I found an external inconsistency.
FISA did not apply to physical searches for foreign intelligence purposes, as Media Matters for America has noted. A year later, Congress -- with Clinton's support -- amended FISA to require court orders for physical searches. The Clinton administration thereafter never argued that any "inherent authority" pre-empted the new warrant requirements for physical searches under FISA.
The Bush administration, on the other hand, has argued that it had the authority to authorize the National Security Agency (NSA) to eavesdrop on domestic communications without warrants, despite FISA's clear restrictions on warrantless electronic eavesdropping. [emphasis mine]
Clearly, Clinton was no Bush. Unfortunately, the clear restrictions
aren't that clear. The Wikipedians had the same uncertainty concerning the 15 day period that I had when reading the source material. I'm not sure if that's resolved anywhere. Other uncertainties revolve around the fact that FISA permits the extra wiretapping powers only during wartime. We're not at war with Iraq, we're at "war" with "terrorism," so will the President have the powers indefinitely? Does he even have them right now?
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