Let’s say a suspected al Qaeda operative in Afghanistan calls a suspected co-conspirator in New York City, who is, say, a Saudi legally here on a tourist visa.
The government has reason to believe that the Afghan is plotting an attack in the U.S. So the Justice Department goes to the FISA court with an application for a wiretap. But, in his infinite wisdom, some FISA court judge decides there is not enough “probable cause” to justify eavesdropping.
The Supreme Court has recognized, for about 150 years, that the POTUS has a constitutional obligation to protect the United States from external attack. Not just the power to do so, but an obligation to do so.
Are we really to believe that the commander-in-chief, the constitutional officer responsible for our security, is, in this example, powerless to order monitoring just because a federal judge — who has no constitutional responsibility, NONE, for the national security of the United States — has decided that there is not enough evidence for a FISA warrant?
Is that what we’re supposed to believe? We are a superpower with a defense budget that is larger than the economies of most countries — paid for by the American people precisely because they are concerned primarily about their security. Yet, when it gets down to brass tacks, our security hinges on whether a single, unaccountable federal judge thinks there is probable cause to monitor a telephone call that may not even involve any American citizen?
Have we gone insane?