Repealing FISA will not fix the problems it has caused, but it would stop making them worse.
Certainly, but it also doesn't go far enough.
Repealing FISA needs to repeal, explicitly, and in its own section of the Act of Repeal, the FISA Courts, if only for the sake of public psychology and assurance.
But that's not enough, either; there needs to be a precedential correction, and that will require a cultural change in the society of personnel populating our Article III judicial system.
Judicial deference--that system wherein judges meekly surrender their Constitutional position as a coequal branch of our Federal government and explicitly subordinate themselves to another coequal branch, and worse, to the several subordinate formations of that coequal branch--must come to an end. (Judicial deference, by that abrogation of coequality, is itself unconstitutional, but that's for a separate writing.) Travesties like Chevron Deference and all of its several variations--every single one of them--need to be reversed. Not tweaked, like Brown did with Plessy, but reversed. Done away with. Bluntly and pithily; only a sentence or two would be necessary. Reversal of those precedents are the beginnings of the necessary precedential correction. The act of reversal, with the necessary plain language, would be the beginning of the necessary cultural change. This may be beginning in other matters regarding other liberties, but the move needs to broaden and the pace quicken.
Pre-authorize surveillance by the Executive Branch? We already have that mechanism: the 4th Amendment. Within that, our Article III courts already have mechanisms for keeping Warrants and subpoenas secret until the police powers are ready to execute them--right down to no-knock warrants (of some practical utility but questionable constitutionality). Our Article III courts already have mechanisms for conducting secret hearings and sealing records so long, and for as long, as all parties to a case agree to the secrecy.
Eric Hines
4 comments:
Some years ago, FISC seemed like a reasonable compromise. No more.
Things evolve, as do the times.
It might actually have been a good idea then. Those folks, the domestic conditions, the international conditions' impact on domestic conditions--all of these have changed drastically from what they were.
Eric Hines
I'm wondering if there's no room to raise the bar required for the FISA process, or if it's wholly irredeemable. I think this scandal, when it's all laid out (and it looks like we're only starting) may have poisoned the well to much to recover, in the public mind. Our microcosm in the Hall sure makes it look that way.
[possible] to raise the bar required for the FISA process, or if it's wholly irredeemable.
Regardless of what I might have thought back when FISA and its courts were originated (and it wasn't much), it's since become clear that the FISA courts, at least, by their existence are wholly irredeemable.
The Star Chambers are anathema to liberty.
Eric Hines
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