Friday, March 14, 2008


Democrats have been demanding compromise from the Bush Administration on the FISA legislation. What has been lost in the discussion is the fact that the Administration has already compromised a great deal. Probably because he will be leaving office in less than a year, has a great deal of respect for the institution of the Presidency, and doesn't want to cause difficulties for his successor, President Bush has largely abandoned the separation of powers fights that were a hallmark of his first six years in office. A very good argument can be made that FISA, to the extent that it applies to foreign intelligence, is unconstitutional. The Administration previously argued that the President has the authority inherent in his role of Commander-in-Chief to order the interception of "signals intelligence" and that neither Congress nor the Courts have the authority to prevent that. That is why the telecom immunity provision is so important. In this new era of high technology it is difficult to obtain necessary intelligence without the cooperation of the telecoms.

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