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Yo, Dunderheads! FISA Has Always Been Exclusive

One of the so-called "improvements" in the pending FISA "compromise" bill is that the bill has language which purports to make FISA the exclusive means by which the executive branch can conduct foreign intelligence surveillance.

I always thought this claim was laughable because, since its inception, FISA has always been the exclusive means by which the executive branch can conduct foreign intelligence surveillance.

So, when you hear some Congress critter, or more recently General Election Candidate Obama, try to tell you that it’s OK to gut the 4th Amendment, stare decisis, and judicial branch independence in order to reap the "improvement" of FISA exclusivity you should laugh derisively at that person because clearly any fool saying that has either not read the bill…

Or is lying.

Or both.

Go read EFF’s "Mythbuster" article which lays it out so clearly.

Glennzilla has a whopping good article up which goes into this in great detail, so I will wait here while you go read it.

[LHP hums tune to self while waiting.] Are you back yet?

The New York Times is reporting a recent decision by Judge Walker, who now has the consolidated multi district telcom litgations all on his desk.

A federal judge in California said Wednesday that the wiretapping law established by Congress was the “exclusive” means for the president to eavesdrop on Americans, and he rejected the government’s claim that the president’s constitutional authority as commander in chief trumped that law.


“Congress appears clearly to have intended to — and did — establish the exclusive means for foreign intelligence activities to be conducted,” the judge wrote. “Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.”

Judge Walker’s voice carries extra weight because all the lawsuits involving telephone companies that took part in the N.S.A. program have been consolidated and are being heard in his court.

Emptywheel also pointed this out yesterday.

Yet in a reply to all those THOUSANDS of active Obama supporters who created a stop the FISA bill group on the Obama campaign website, General Election Candidate Obama stonewalls his decision to reverse the postion he took when he was Primary Candidate Obama with this pathetic justification:

But I also believe that the compromise bill is far better than the Protect America Act that I voted against last year. The exclusivity provision makes it clear to any President or telecommunications company that no law supersedes the authority of the FISA court.

You can read his complete statement over at EW’s.

Oh, and this little nugget in Obama’s statement, is pure falsehood: "Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I’ve chosen to support the current compromise."

FISA is still a live statute. If this bill does not pass, or is vetoed, FISA warrants will continue to be issued, as they have always been upon a showing of probable cause in an application to a FISA judge. There is no loss of ability to go get a warrant. None. Zero.

What will expire is the current bandaid legislation which allowed basket warrants without a showing that there is probable cause to spy on any of the individuals in the basket. So, follow along with me. The proposed legislation guts key provisions of the Bill of Rights, Constitution and rule of law and the supposed benefits of this bill are already in existence.

No net gain. Worse, not even signifigant mitigation offsets to at least diminish the harm.

More on this ruling from EFF.

And even more from Threat Level at Wired.

There’s a lot more in Judge Walker’s decision than just reaffirming that FISA has been exclusive all along, but I really want to point out IN ADVANCE OF THE SENATE VOTE, that all of the reasons being advanced for why there are, ahem, "improvements" in this bill are basically bullshit (one or two really non controversial technical things not withstanding).

In short, there is not only no reason for this bill, there is no excuse for it.

[Huge hat tip to Redd, who basically handed me all of her link research when I said I intended to write on this topic. She is so generous, which allowed me to be so lazy.]

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In rugby, the looseheadprop is the player in the front row of the scrum, who has the ability to collapse the scrum, pretty much at will and without the referee knowing who did it.
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