Harry & Friends Fail Once Again Re: FISA

Harry Reid tried his best to extend the temporary extension on FISA today, and failed. How often do we see “failed” and “Harry Reid” in the same sentence btw?

Senate Republicans blocked Majority Leader Harry Reid’s attempt Tuesday to extend the life of a surveillance law due to expire Feb. 1, raising the stakes for a vote expected later this week on a new version of the law.

Reid, D-Nev., failed to get the unanimous consent he sought to extend the Protect America Act, which Congress hastily adopted last summer in the face of warnings from Bush administration officials about dangerous gaps in the government’s ability to eavesdrop on terrorist e-mails and phone calls.

Senate Minority Leader Mitch McConnell, R-Ky., objected to the extension, saying there was enough time before the law expires to pass a longer-term renewal of the government’s terrorist surveillance authority.

Look Harry, there is a filibuster-proof majority in the Senate to pass the new FISA bill, get over it.

The telephone companies most definitely need to have immunity, and the majority believe this to be the case. In no way, shape or form should they be punished for cooperating with the Government in a time of national emergency. How bad of a precedent would that set?

Additionally, you need to read Andrew McCarthy’s response to Gov. Bob Barrs fisking of a recent article of Andrews:

I was not addressing what the confused congressman claims is “the ‘right’ of a U.S. citizen in this country to communicate with persons not in this country with the assurance that he is subject to being monitored only if there is a colorable suspicion by the government that the persons overseas are ‘enemies.’” If he wants to talk about that, though, I am game. There is no such right — certainly not in the Constitution.

That is not just a matter of law; it is a matter of common sense. When you make a call or send an e-mail outside the United States, American law does not govern the other end of the communication. Bob apparently thinks if a U.S. citizen, however innocently, calls a war zone in Afghanistan or a police state like China (where even Google is intimidated into monitoring content), he has an expectation of privacy. Maybe in Barr World, but not in the real world. For over 40 years, “reasonable expectation of privacy” has been the trigger of constitutional protection. That wasn’t my idea, nor was it the Bush administration’s; it is the jurisprudence of the Supreme Court. See Katz v. United States, 389 U.S. 347 (1967). (I frankly think pre-Katz law, based on the concept of trespass rather than privacy expectations, was more faithful to the original meaning of the Fourth Amendment.) In any event, Bob believes that only American authorities should remain deaf and blind while the rest of the world’s intelligence services freely monitor international communications. He’s entitled to his opinion, but thankfully our Constitution contains no such restrictions.

For all his bloviating about the Constitution, jurisprudence is plainly not Congressman Barr’s area. He writes:

“The current law, which Mr. McCarthy apparently embraces wholeheartedly, affords the government the power to monitor not only communications with known or suspected terrorists (which it should be doing), but any call or e-mail that anyone makes from or into this country. Such monitoring is allowed without having to make any showing whatsoever to anyone (including the federal courts in which Mr. McCarthy holds no faith) that there is reason to suspect any of the parties are bad guys or are discussing any matters even remotely related to our nation’s security.”

Let’s dispense first with the congressman’s misconceptions about my position. First, I do not embrace the current law wholeheartedly (or the Bush administration’s position). I’ve repeatedly argued (see, e.g., here, here and here) — as has, for example, Judge Richard Posner, no lackey for any administration — that the “probable cause” standard, which current FISA law applies, is not constitutionally required and is dangerously over-burdensome in the current threat environment. Secondly, I have a great deal of faith in our courts when they are performing their proper function — more, I think, than Bob does for reasons I’ll get to momentarily. But, as Justice Jackson wrote for the Supreme Court in 1948, addressing the governmental division of labor in matters of intelligence collection,

“Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are 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.”

Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103 (1948). Now, maybe Bob would snark that Justice Jackson had no faith in the federal courts. I rather think he — as someone who, like Bob and I, had been a federal prosecutor — properly understood the separation of powers doctrine on which our liberties and security depend.

The higher federal courts have a strong tradition of embracing that doctrine. Congressman Barr claims, absent any authority, that communications which pass through our borders may not be monitored absent court permission. In point of fact, even American citizens who pass through our borders may be subjected to the most intrusive searches without any cause — probable, reasonable or otherwise. See, e.g., United States v. Montoya De Hernandez, 473 U.S. 531, 537-38 (1985). That’s because, as the Supreme Court has acknowledged, the executive branch, not the judiciary, is custodian of the nation’s “inherent sovereign authority to protect its territorial integrity.” Torres v. Puerto Rico, 442 U.S. 465 (1979). For 30 years, furthermore, the Supreme Court has held that all international postal mail may be searched without warrant. United States v. Ramsey, 431 U.S. 606 (1977). Bob might want to take a look at Ramsey. In it, then-Justice Rehnquist noted that an American who physically carries a letter — i.e., a communication — across the border is subject to having its contents read by the government without a warrant. From this premise, he deduced: “There is no reason to infer that mailed letters somehow carry with them a greater expectation of privacy than do letters carried on one’s person.” Nevertheless, in Barr World, though the government gets to read your communications without a warrant and absent any cause when you try to carry or mail them out of the country, it somehow needs a judge’s permission when you try to do exactly the same thing by dialing a phone or hitting “SEND” on your computer — even in wartime and even if it has reason to suspect you are in cahoots with the enemy.

Makes too much sense I guess for the Democrats to wrap their head around. Be that it may, we most certainly need to monitor terrorist communications into and out of this country. We need the TelCo’s help, obviously. So they need some protection against bankruptcy when these twisted trial lawyers and the even more twisted liberals do their best to avert the attempts by this President to do his job, ie….protecting this country.

Curt

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