Got FISA Frustration? It's Time to Fight Back

Posted by Christy Hardin Smith, Firedoglake at 12:18 PM on February 12, 2008.

With the Senate's failure to stand up for the rule of law today, the ball goes back to the House's court if the SSCI bill passes.

FDL and Glenn Greenwald ask you to help us push the House in the rule of law direction: please sign our petition asking House members to support the RESTORE Act, and not cave to pressure from the Senate on telecom immunity, on basket warrants and every other provision which requires careful debate on the long-term legal ramifications rather than a rubber stamp.

In a follow-up opinion (FISC Docket No.: MISC. 07-01), the FISA Court has again punted the issue of overreach by the Bush Administration on classification questions back to Congress. The ACLU's appeal of their December decision has resulted in the same answer: the Bush Administration's actions and classification justifications raise serious questions, but those must be answered by Congress. From the FISC opinion:

...The Court is aware of the ongoing congressional and public debate over extending or replacing the Protect America Act of 2007, and it acknowledges that release of the requested materials (at least in their unredacted form) could inform the public in that debate.

Nevertheless, the Court properly rejected the ACLU's request for release, and now denies the ACLU's motion for reconsideration. As noted above and in the Court's original opinion, even assuming that this Court has the discretion independently to declassify materials over the Executive's objections, the searching review requested by the ACLU of the Executive Branch's classification decisions -- over and above that conducted by a district court under FOIA -- poses unacceptable risks to the national security and to the proper functioning of the FISA process. As already explained, these risks include the heightened possibility of erroneous judicial release of properly classified materials; the forgoing of search or surveillance against legitimate targets; avoidance of the FISC in cases where the need for FISC approval is unclear; and impediments ot the free flow of information in cases that are submitted. These risks simply outweigh the potential benefits from discretionary release.

In other words, there is likely information that the public should know that exists in these classified materials, but the Congress, and not the courts, is the place in which these matters ought to be investigated. It's a strong hint from the FISA court, but they are not going to go beyond that because to do so, in their opinion, would be a violation of their role in this oversight tango. (And I have to wonder if the documents that the House is combing through

That the FISA Court has gone on record publicly not once -- but twice now-- on this issue screams volumes. That there is no clear resolution to these issues says a lot about where we are politically, and about the levels of frustration that is engendering among a whole host of people inside and outside the Beltway.

Back in December, after the first decision, I said this -- which is still applicable today:

In plain language, the FISA court just called the Bush Administration on its hypocritical use of classified information for its own political purposes and not properly taking national security considerations into account while using this information as a political football. Good for them.

But this also brings into stark contrast the fact that they have punted this abysmal situation back into the Congress, where oversight and legislative action are the corrective remedies for executive branch overstep. Which is exactly what we have not been seeing, as delay and capitulation to veto threats have sadly ruled the day in the face of overarching political concerns versus standing up proudly for the Constitution.

We need leadership. From every Democratic Presidential candidate, from every Democratic member of the House and Senate. From every American who cares about his or her nation as a nation of laws and not at the whim of a unilateral executive power grab. We fought one revolution in this nation against a petulant King George. It's high time we remembered the value of spine and spunk -- and it is well past time that our elected "leaders" actually exerted some leadership.

What we are facing is a crisis of leadership and character from the people we elect to be leaders. The Republican party is more interested in protecting the Bush Presidency from scrutiny and, thus, it's own party from factually sustained criticism than standing up for the rule of law. The Democratic party does not have enough members with stiff enough spines to withstand the GOP screechfest that would follow any factual assault on the Bush/Cheney illegal overreaches on legal and ethical grounds. And the numbers in both the House and Senate are so close that the votes are not there without a break in those ranks among the GOP and Blue Dogs somewhere to put the rule of law first.

In short, we are stuck in some sort of heinous purgatory wherein the interests of comity and fealty to the CYA needs of the Bush Administration come ahead of the pleas of the DFHs and libertarians and other Americans to stand upright against a unilateral executive power grab.

What we need are more people in Congress who put the rule of law ahead of their own political careers and their party interests, who are willing to stand up for what is right instead of what appears to be politically expedient in the moment. Certainly we have had folks like Feingold and Dodd and a host of others in the Senate and House who have stood with the rule of law. But lately, I have been longing for the days of Sam Ervin and Barbara Jordan and all those giants of the Watergate era who put the nation's interests as a whole first.

Members of the House, the nation turns its lonely eyes to you...

The ACLU is asking its membership to call their member of the House. You can find contact information for the House here. Talking points are:

1. Vote NO on any spying bill with telecom immunity. Lawsuits must be allowed to proceed or we'll never know the truth about what laws were broken and how many Americans rights were violated.

2. Vote NO on any spying that allows the government to spy on Americans without getting a warrant. America doesn't need a bill that needlessly expands the President's ability to spy on innocent Americans without a warrant.

3. Don't let the Senate or President Bush steamroll the House of Representatives. Any bill to regulate spying on Americans must respect the Constitution and must not let phone companies off the hook for warrantless spying.

Tagged as: bush administration, fisa, democratic congress

Christy Hardin Smith is a former attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review.