FISA Hearings

I was in a mediation yesterday and have the requisite catch-up to play today, so I doubt if I'll get read the transcripts and give my two cents' worth anytime soon. Meanwhile, Professor Yin has an analysis up on one of the more interesting statutory interpretation issues. And Solove on Concurring Opinions has this:

GONZALES: It's an early warning system designed for the 21st century. It is the modern equivalent to a scout team, sent ahead to do reconnaissance, or a series of radar outposts designed to detect enemy movements. And as with all wartime operations, speed, agility and secrecy are essential to its success.

TRANSLATION: Remember the robot probe in The Empire Strikes Back? It’s like that.

GONZALES: While the president approved this program to respond to the new threats against us, he also imposed several important safeguards to protect the privacy and the civil liberties of all Americans. . . . As the president has said, if you're talking with Al Qaida, we want to know what you're saying.

TRANSLATION: If you’ve got nothing to hide, then there should be no problem with us listening to you. If you’ve got something to hide, then . . . well . . . we should listen to you.
GONZALES: Presidents throughout our history has authorized the warrantless surveillance of the enemy during wartime, and they have done so in ways far more sweeping than the narrowly targeted terrorist surveillance program authorized by President Bush.

TRANSLATION: They did it too! It ain’t fair to single us out. Yes, they did it before the FISA was passed, but still!

GONZALES: While FISA is appropriate for general foreign intelligence collection, the president made the determination that FISA is not always sufficient for providing the sort of nimble early-warning system we need against Al Qaida. . . . Just as we can't demand that our soldiers bring lawyers onto the battlefield, let alone get the permission of the attorney general or a court before taking action, we can't afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive Al Qaida operatives in real time.

TRANSLATION: A simple syllogism. FISA requires judicial oversight. Judicial oversight requires courts. Courts require lawyers. And everybody hates lawyers, right?

Read the rest.