Today's Washington Post brings us more facts surrounding the evisceration of the Fourth Amendment resulting from passage of the "FISA Update" last weekend by your Congress. It is not pretty. There were two rulings, instead of the one we have been led to believe, by the conservative judges handpicked for the FISA Court that went against the Administration--one in March, and one in May, that were the impetus for the Administration's big push. Read and weep for your Constitution.
But in a secret ruling in March, a judge on a special court empowered to review the government's electronic snooping challenged for the first time the government's ability to collect data from such wires even when they came from foreign terrorist targets. In May, a judge on the same court went further, telling the administration flatly that the law's wording required the government to get a warrant whenever a fixed wire is involved.
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The judges were sympathetic but said they believed that the law was clear. "They said, 'We don't make legislation, we interpret the law,' " the senior administration official said.
The rulings -- which were not disclosed publicly until the congressional debate this month -- represented an unusual rift between the court and the U.S. intelligence community. They led top intelligence officials to conclude, a senior official said, that "you can't tell what this court is going to do" and helped provoke the White House to insist that Congress essentially strip the court of any jurisdiction over U.S. surveillance of communications between foreigners.
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Heh. The FISA imbroglio really is the gift that keeps on giving. It just keeps getting better and better; in a strictly negative sort of way of course. Where do you even start? Recognition of the consistency of Bush and the Republican's desire for "strict construction" from Federal judges and their rulings? The admirable performance under pressure by the Democratic leadership? It is beyond sick. It is bad enough that Rockefeller and Levin would contemplate trading the essence of the Constitution and fundamental rights of the citizenry for documentation they were long ago entitled to, but were to weak and lame to obtain. But NO, they didn't even walk away with that pitiful outcome; all they got was humiliation. Hey, here is a thought for our Democratic geniuses, maybe the reason the FISC kept ruling against the Administration is because the activities were freaking illegal, unconstitutional and just plain wrong. Mind boggling is not a sufficient description for this. This has got to stop. The Democrats are no better than the Republicans; and that statement is no longer a humorous aside. The politicians of both stripes are selling the soul of our country down the river."I want to move forward," [Rockefeller] said. But Democratic leaders wanted something in return: the release of long-sought administration documents describing the controversial warrantless wiretapping program Bush had authorized in the weeks after the Sept. 11, 2001, terrorist attacks.
The administration declined to release the documents, which include Bush's presidential order allowing the wiretaps, as well as the administration's legal opinions justifying the action. Administration officials described a particular showdown with key Democratic leaders -- including Rockefeller and Carl M. Levin (Mich.), chairman of the Senate Armed Services Committee, in which Democrats proposed a trade of sorts.
While the exchange was not a quid pro quo, the senators essentially said, "You give us the documents we want, and we'll give you the legislation," according to an administration official present, who said the response was "no."
h/t to the incomparable Marcy (Emptywheel) Wheeler
