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Got FISA Frustration? It's Time to Fight Back

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.
 
 
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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 throughcontain this information -- or is it something beyond what they have been given?)

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.

 
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