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February 18, 2006
Congress Wants An Escape Hatch

Having tried and failed to shut down the NSA surveillance program -- a failure due to the American public's desire to track the international communications of suspected terrorists with or without warrants -- Congress has had to settle for an encroachment onto what has always been executive wartime powers. Due to the current political climate and a desire to move on with the program, the White House has signalled that it will respect reasonable oversight conditions of Congress. Now, however, Congress has decided that the political cost of owning the surveillance program might be too high and has decided to punt the entire responsibility to a group of appointed secret judges instead:

The chairman of the Senate Intelligence Committee, breaking ranks with the president on domestic eavesdropping, says he wants a special court to oversee the program.

Sen. Pat Roberts (news, bio, voting record), R-Kan., said he is concerned that the secret court established by the Foreign Intelligence Surveillance Act could not issue warrants as quickly as the monitoring program requires. But he is optimistic that the problem could be worked out.

"You don't want to have a situation where you have capability that doesn't work well with the FISA court, in terms of speed and agility and hot pursuit," Roberts was quoted as saying in Saturday's New York Times.

Roberts said he does not believe much support exists among lawmakers for exempting the program from the control of the FISA court. That is the approach Bush has favored and one that would be established under a bill proposed by Sen. Mike DeWine, R-Ohio.

I still think either approach is superfluous; the executive has always had the ability to perform warrantless searches for those who cross international borders, including luggage and persons, and that's in peacetime. Where FISA demands that the executive bow to Congress in wartime espionage, the statute is clearly not only unconstitutional but also defies 200 years of precedent in the allocation of war powers.

Now, however, Congress wants to eat its cake and have it too. They want to take executive powers, and instead of making themselves politically responsible for the consequences, they want to pawn it off to a court. This is no different than their stated interpretation under FISA, except that Roberts is proposing an expediting process that clearly doesn't exist now. In fact, Roberts wants to create another appointed court to supercede the FISA jurists, and who share with them the complete lack of accountability for their actions.

This is nothing more than a cowardly dodge, an attempt to keep this power dispute between Congress and the executive from reaching the Supreme Court -- which will likely rule against Congress and strike down the wartime provisions of FISA. It also is another attempt to force a wartime role onto the judiciary, which has never before been propsosed and for which they are completely unsuited. Congress either needs to accept the oversight responsibility that the Administration has offered or drop the entire debate altogether.

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Posted by Ed Morrissey at February 18, 2006 9:32 AM

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Really, I have no problem with what Sen. Pat Roberts (R-KS), chairman of the Senate Select Committee on Intelligence, just said: The chairman of the Senate Intelligence Committee, breaking ranks with the president on domestic eavesdropping, says he wan... [Read More]

Tracked on February 18, 2006 8:04 PM


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