All Intensive Purposes

Some of the people leaping to defend the Administration's legal arguments about FISA obviously have no idea what they're talking about, and can't even be bothered to, y'know, look at the law itself.

Over at Captain's Quarters today, it is open season on George Will for failing to toe the President's line. Will writes

that warrantless surveillance by the National Security Agency targeting American citizens on American soil . . . violates the clear language of the 1978 Foreign Intelligence Surveillance Act, which was written to regulate wartime surveillance.

Perhaps not the most felicitous phrasing, since FISA had other goals, too. Hard to argue with, though, and the Bush Administration isn't even trying -- as a statutory matter, they're saying that FISA was amended by the Authorization for the Use of Military Force in Afghanistan, a whole 'nother can of worms.

But Captain Ed is willing to try to push the envelope to defend the White House:

This is patently untrue. FISA came into being to regulate peacetime surveillance by the federal government, as an antidote to Nixonian abuses of power that had nothing to do with the conduct of war. . . .

The authority to conduct wartime surveillance on one's enemy, regardless of whether one terminus of the communication was located in the US, has never been questioned until now.

Um, no. That's just wrong. Let's look at FISA. It's an unpleasant acronym, but unlike the facts about what the NSA may or may not be doing, what it says is actually something that you can consult and learn. And, hey, it turns out that part of FISA specifically was drafted to govern electronic surveillance during wartime:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.

50 U.S.C. s 1811. And as Will implied, this provision dates from 1978.

So let's see if Ed is willing to acknowledge that he, not George Will, got it wrong.


More on the AUMF and FISA here (in short: read the AUMF and FISA). Why Ed is wrong when he suggests that Congress has no role in how wars are conducted here (in short: read the Constitution).

Update: A full day since I posted this, and while the Captain has updated his post twice, he hasn't acknowledged or corrected his error. What can you do?

Another Update: Now he's acknowledged the mistake. Apparently you have to have Glenn Greenwald's page hits to get his attention.