FISA and the Courts

FISA AND THE COURTS….Matt Yglesias asks a question about the Bush administration and the FISA act, which sets the rules for domestic wiretapping:

Beneath all the smokescreens what they’re really trying to say is that they think FISA is unconstitutional, so they ought to be allowed to violate it. What I can’t understand is why they won’t just say so and see if they can get a court to agree. Are the legal arguments here so terrible that there’s no chance even the new, Alito-ified court won’t agree?

Yesterday at The Corner, Andy McCarthy offered up his explanation for why Bush hasn’t ? and shouldn’t ? invite a court test:

It is the President, not the Judiciary, which is supreme in matters of foreign intelligence collection and national security. It is, moreover, wartime. It is the President in our system who makes the ultimate judgment about what must be done to protect the public from foreign threats ? even in peacetime. It would not be proper constitutionally for the President to delegate that prerogative to another branch. Thus, if the FISA Court reviews the NSA program and opine against it, what is the President supposed to do? Discontinue a program that provides an early warning system against what could be a devastating attack? That is a call we elected him to make ? the FISA court has no place making such judgments.

Got that? Even in peacetime, the president is absolutely sovereign when he decides that his actions are required to protect the public from foreign threats. Once he’s made that decision, whether secretly or not, Congress and the courts have no say in the matter. None.

It’s breathtaking, isn’t it? And yet, this is the kind of argument the president’s supporters are increasingly driven to make. It’s a pretty good indication that they don’t have anything serious left in their bag.