Ever since the Bush Administration's warrantless wiretapping program was exposed in 2005, critics have denounced it as illegal and unconstitutional. Those allegations rested solely on the fact that the Administration did not first get permission from the special court created by the 1978 Foreign Intelligence Surveillance Act. Well, as it happens, the same FISA court would beg to differ.as i tried to explain to GB yesterday, the declassified ruling was about whether a 2007 amendment to the 1972 FISA statute violated the constitution. the flap over the legality of bush's warrantless wiretap program when it was revealed in 2005, on the other hand, was whether the program violated the FISA statute in the version before it was amended.
In a major August 2008 decision released yesterday in redacted form, the Foreign Intelligence Surveillance Court of Review, the FISA appellate panel, affirmed the government's Constitutional authority to collect national-security intelligence without judicial approval. The case was not made public before yesterday, and its details remain classified. An unnamed telecom company refused to comply with the National Security Agency's monitoring requests and claimed the program violated the Fourth Amendment's restrictions on search and seizure.
this seems to be too subtle of a distinction for right blogistan to wrap their tiny brains around. yesterday, they were all aflutter over how the ruling allegedly vindicated bush's conduct betweeen 2002 and 2005, even though that was before the amendment that was ruled upon in the decision and even though the issue then was whether bush violated the statute, not whether he violated the constitution. today, michael goldfarb, one of the bright lights at the weekly standard, actually claimed that the decision means that the new york times owes an apology for its december 2005 article that revealed the program to the public. when pointed out that the declassified decision was about a different issue than the legality of bush's program in 2005, goldfarb added an update: "while the decision 'applies only to the stopgap FISA measure in place between 2007 and 2008, it sets a precedent.'" never mind that a precedent over the meaning of the constitution doesn't apply to a statutory construction issue.
but let me try to put this in terms that even the dimmest bulb on the right might be able to understand:
let's say that there was a law outlawing the stealing of jelly beans. a guy named george doesn't pay attention to that law and steals jelly beans continuously for at least three years. then the new york times publishes a story revealing george's thefts. hubbub ensues, but george is defiant. he thinks he should be allowed to steal and says he's going to continue doing it because he thinks he should be allowed to. people still grumble that george is committed repeated felonies so after another year and a half later, george gets congress to pass a law that amends the orginal jelly bean act. the amendment makes it legal for george to steal jelly beans for a six month period (beginning with the passage of the amendment), provided that he only steals red jelly beans.
a critic of the amendment sues, claiming that the amendment is unconstitutional because it discriminates against jelly beans on the basis of their color. the court disagrees and upholds the jelly bean amendment, ruling that the constitution doesn't prohibit that kind of discrimination.
the court's decision would not have any relevance to the question of whether george broke the law when he stole jelly beans those first three years. first, the issue in that first three year period is not the constitutional issue addressed by the court, but rather the question whether he violated the original jelly bean statute.
second, the court only ruled on an amendment to the law that happened after the hubbub caused by his stealing. it has nothing to do with the original theft or the original version of the law before it was amendment that george violated. in fact, the whole point of the amendment to the jelly bean law was to legalize george's conduct that was illegal before the amendment was passed.
one of the the disadvantages to ignoring the critics of president bush for so long is that a lot of these guys really have little understanding of what those criticisms were. expect to see a lot of embarrassing claims of "vindication" like this one in the future.
