FISA

In this piece at NRO, Andrew McCarthy makes a totally reasonable assessment of the kerfuffle over the NSA controversy. He begins with a hypothetical situation:

Our military-theater commanders in western Afghanistan and central Iraq sketch out operations against the enemy. They account for the various contingencies that might arise when confronting stealthy terrorists who shun the laws of civilized warfare. They pore over the latest intelligence estimates one last time. They position their land and air forces accordingly, and ensure that they are properly armed and ready. And then they go … straight to court.

Then he asks a question:

Why? Well, to make sure their activities meet the approval of a federal judge, of course. After all, they are about to embark on gross invasions of privacy. Lives are about to be taken, liberty deprived, property seized. Surely, in 21st-century America, such potentially overbearing executive branch behavior cannot be permitted absent approval of a court, can it? What about due process? Where is the probable cause?

Sound ridiculous? Yes, it does. But it is no more absurd than the notion that drives the current controversy over wartime electronic surveillance by the National Security Agency.

We are either at war or we are not. If we are, the president of the United States, whom the Constitution makes the commander-in-chief of our military forces, is empowered to conduct the war — meaning he has unreviewable authority to employ all of the essential incidents of war fighting.

From this point, he goes on to completely destroy the argument of those that would condemn the President for his actions. He ends with cogent remarks:

Congress did so again with the Foreign Intelligence Surveillance Act, the 1978 statute which sought to make judicial approval, on a legal standard of probable cause, a prerequisite to national-security eavesdropping (and, now, searches). FISA may not be unconstitutional in all its particulars (although it may be — and it certainly needs overhauling if it is to avoid laughingstock status, pitted against 21st-century enemies versed in 21st-century technology). But to the extent FISA limits the power of the commander-in-chief to conduct warfare, to the extent it would transfer to judges the decision whether an essential incident of warfare may be used, it is no more constitutional — or rational — than if it had purported to put the courts in charge of military target selection, or other battlefield judgments.

A blank check for the president? That is preposterous rhetoric. The commander-in-chief power includes the incidents of warfare. Nothing else. The president cannot seize the steel mills. He cannot suspend habeas corpus. He cannot close the banks, raise taxes, or conscript minors. He is no king. Indeed, if we are to talk about “the king” — as in having no clothes — our eyes should be cast on Capitol Hill.

Read the entire piece