Spy if You Want
Cato's Roger Pilon has a Wall Street Journal piece urging the Senate to disregard all the whining about civil liberties and pass surveillance authorization already. ("The clock is ticking.") Julian Sanchez lays into him line by line. A snippet:
It bears noting that Roger's approach to interpreting the scope of executive national security powers is precisely the opposite of the approach he takes to the rest of the Constitution. When he reads "commerce" in Article I, Section 8, man that means commerce—not manufacture, not consumption, not activity that affects commerce—nothing but the literal buying and selling of goods. At the blurry edges, at any point where the scope of the power is ambiguous, he wants a narrow reading and a constrained power. The volume of intrastate wheat production and consumption may in part determine the price of wheat on the national market, but it's not interstate commerce, so on Roger's view, Congress can't touch it.
On the other hand, because "intelligence is essential" to national security, "Commander in Chief of the Army and Navy of the United States" naturally entails the power to authorize surveillance of Americans' communications with (at least) persons abroad, subject to neither limitation nor, indeed, even scrutiny by the other branches.
In December, Sanchez argued that more is at stake than retroactive immunity. Much more reason on FISA available here.
UPDATE: Over at Cato's blog, my friend Tim Lee weighs in:
The dispute is over what safeguards are appropriate to ensure that the intelligence community's surveillance activities here in the United States are limited to genuine foreign intelligence. Roger's position appears to be that neither the courts nor Congress may place any restrictions on domestic surveillance activities that the president declares to be related to foreign intelligence gathering. But that's not good enough. Without judicial oversight, there is no way to know if the executive branch is properly limiting its activities to spies and terrorists, or if they've begun to invade the privacy of petty criminals or even law-abiding individuals.
