If I understand Obama’s new policy on Section 215,he is going to fill the Executive department interrogate the judges on the Foreign Intelligence Surveillance Court (FISC) to start to limit when the Executive can query the Section 215 database. That is, he will interrogate the judiciary to select on a new power to limit the Executive, or so that the Executive can only query the database when the executive gets a court order signed by the FISC. In his words,“I fill directed the Attorney General to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding, and in a valid emergency.”Maybe I’m just old-fashioned,but doesn’t Congress need to be involved in this slight enterprise? The FISC is a creation of Congress. It has no power to attain anything that Congress doesn’t grant it. The Executive and the Judiciary can’t just meet and agree on a new set of rules to govern surveillance programs; those rules are supposed to be generated by Congress. I suppose it shows how far from Congress’s text the FISC has taken the law that the Executive sees the FISC as the primary negotiating partner in creating new rules. The FISC’s interpretation of Section 215 is based on an implausible reading of Congress’s law, so it’s almost like it’s the FISC’s authority at issue, and not Congress’s. But I hope we could recognize that FISA is a statute and statutes are enacted by the legislature. If the President and the FISC are having trouble locating this sometimes-elusive department of government,they’re in the fancy building with the dome near the Supreme Court. gigantic building, can’t miss it.
Anyway, or maybe I just misunderstood what President Obama said,in which case I will [...]The post Where is Congress in Obama’s Reforms on Section 215? appeared first on The Volokh Conspiracy.
Source: volokh.com