Legal Commentary

The FISC Decision On the Protect America Act

By Big Tent Democrat

As discussed earlier, the FISC appellate court issued a decision today on the constitutionality of the Bush Administration's application of the Protect America Act. The panel was composed of Bruce Selya of the First Circuit, and Senior Judges Ralph Winter of the Second Circuit and Richard Arnold of the Eighth Circuit. The panel does not pass on any actions by the Bush Administration prior to the enactment of the PAA. To wit, the panel states that this is an "as applied" challenge to the Bush Administration's application of the PAA. More after I read the opinion.

Here is the least satisfying, persuasive and honest portion of the decision:

The petitioner suggests that by placing entirely in the discretion of the Executive Branch, without prior judicial involvement, the procedures cede to that Branch overly broad power that invites abuse. But this is little more than a lament about the risk that government officials will not operate in good faith. That sort of risk exists even when a warrant is required. . .

Indeed, why even have a separation of powers? Who needs a 4th Amendment for that matter. Sheesh. Other than that, the opinion is boilerplate.

The questions Eric Lichtblau believes are implicated, the Bush Administration's actions in violation of FISA from 2001 to 2007, are not even remotely discussed here.

A disappointing opinion intellectually, but nothing extraordinariiy bad.

Speaking for me only

Full post as published by TalkLeft on January 15, 2009 (boomark / email).