The Courts And Foreign Intelligence

THE COURTS AND FOREIGN INTELLIGENCE....Andrew McCarthy issues a blast of outrage today over the fact that courts have any role at all in regulating how foreign intelligence is gathered. Here's his contention:
[H]ow could a FISA-court judge have come to the conclusion that foreign-to-foreign communications implicate FISA and required judicial sanction? Only by making it up. That is, only by violating the terms of FISA in favor of what the judge subjectively believed FISA should cover. The happenstance that a foreign-to-foreign communication passes through American telecom networks is irrelevant.

....As the Supreme Court explained in 1948, intelligence gathering involves "decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry." The judiciary doesn't belong in this thicket at all.
McCarthy is having an argument with thin air. Everyone agrees that the president has virtually unlimited legal authority to monitor foreign-to-foreign communications without a warrant. Republicans agree. Democrats agree. I was just on a radio show with Jack Balkin, as fierce a critic of the Democratic cave-in on FISA that I know, and he agrees. There's literally no serious controversy over this.

The only serious question is one that McCarthy pretends never to have heard of: How do you make sure the government is only monitoring foreign-to-foreign communications in the first place? The job of the FISA court isn't to oversee foreign-to-foreign communications (McCarthy is right about that), but it is to oversee intelligence programs to make sure that's all they're monitoring. In the old days this was pretty straightforward. In the brave new world of the internet, it's not.

As McCarthy surely knows, Democrats were completely on board with modifications to FISA that would lay down rules providing the government with reasonable access to foreign-to-foreign communications that pass through American switches, while still requiring warrants if an American on American soil was involved. The Democratic amendment accomplished that. Mike McConnell agreed to it. Then the White House suddenly decided that it wasn't enough. The only plausible explanation for this turnaround is that they also want to be able to monitor domestic calls without a warrant, something that most certainly is — or used to be — within the province of the judicial system.

Bottom line: Nobody wants to handcuff the executive's ability to gather foreign intelligence, we just want judicial review to make sure it's foreign intelligence in the first place. A similar dynamic is in play at Guantanamo: nobody disputes the executive's authority to hold foreign terrorists, we just want judicial review to make sure they're terrorists in the first place. That's the whole point of the judiciary: not to infringe on the executive's legitimate powers, but to make sure they don't go beyond them. If McCarthy wants to be taken seriously, that's the issue he should address, not the phantom non-controversy he's invented out of whole cloth.

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