The Corner

Surveillance Overhaul Will Pass In The Senate

The Washington Post reports that the filibuster bluster is fading. The Senate overwhelmingly agreed to debate intelligence reform, which passed in the House last week by close to a 2-1 margin. It’s going to pass.

One aspect of the Post story is more a matter of wishful thinking than accurate reporting. Paul Kane writes that the compromise bill “would establish the FISA law, and the secret court it created, as the final legal authority on government spying.” In practice, that will probably be true. As a matter of constitutional law, however (and to repeat for the umpty-umpth time), a statute cannot trump the Constitution.

If the president has power under Article II to order warrantless surveillance against foreign threats to national security — and administrations of both parties, the federal courts, and even Congress itself in the original 1968 wiretapping statute have all said the president does have that power — then no mere statute can remove it. The surveillance overhaul may purport to establish FISA law and the FISA court as the final legal authority (in language that claims to make federal statutes the “exclusive” means by which eavesdropping may legally occur). But the measure is powerless to do so if the president’s authority comes from the Constitution.

Again, this is all more theoretical than practical. A litigation climate has been created in which the telecommunications industry would never again comply with a presidential request for warrantless monitoring. The Obama Left, the ACLU, and the Democrats’ trial lawyer benefactors are bent out of shape because the telecoms will receive retroactive immunity this time, so billions in potential liability will vanish (at great savings for Americans to whom the cost would have been passed along). But ultimately, they’ve succeeded in making it highly, highly unlikely a president will be able to carry out warrantless surveillance in the future.

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