United States v. United States District Court, 407 U.S. 297 (1972), addressed whether the 4th Amendment required a warrant for surveillance in “internal security matters” such as subversion of our sedition against the government. The Court did not hold that the 4th Amendment required a warrant for surveillance of suspected agents of foreign groups of any nationality for the primary purpose of foreign intelligence gathering. Indeed, the subsequent Truong line of cases in the Circuit Courts of Appeal held that the 4th Amendment does not require warrants for foreign intelligence gathering.

In sum, neither the 4th Amendment nor Article I anywhere grants Congress the power to direct who may and may not be the target of surveillance for the purposes of foreign intelligence gathering. Consequently, FISA is unconstitutional to the extent that it attempts to limit or eliminate the President’s executive and CiC power to direct foreign intelligence gathering. Judge Bates and a number of FISA judges before him appear to recognize that fact.

My favorite bit of reasoning — one which you left out, Lyle — is that if he were to rule that there were a First Amendment right of access to the FISC’s legal rulings, then the Executive Branch might just stop seeking warrants for its surveillance activities — i.e., just say to hell with FISA. Granted, with this administration that’s an utterly plausible premise, but the notion that a federal judge should allow his determination of the scope of a constitutional right to be based on the fact that the President might then blatantly disobey the law is certainly a novel addition to our jurisprudence.

I also thought this reasoning was interesting, but for different reasons. Judge Bates appears to be joining the other FISC judges who testified before the Senate in recognizing that the President has plenary power over foreign intelligence gathering and that FISA cannot limit that power. Judge Bates recognizes that the President’s participation in the FISA process is largely voluntary and he could again decide not to allow the FISC to supervise the NSA.

This decision slaps down the ridiculous fiction the NYT was hiding behind that their disclosure of the TSP did not give al Qaeda anything that they already did not possess.

It will be interesting to see if the district courts considering the various civil suits against the government and the telecoms will follow the lead of the court most familiar with the Terrorist Surveillance Program when the plaintiffs attempt discovery of top secret NSA intelligence operations.

My favorite bit of reasoning — one which you left out, Lyle — is that if he were to rule that there were a First Amendment right of access to the FISC’s legal rulings, then the Executive Branch might just stop seeking warrants for its surveillance activities — i.e., just say to hell with FISA. Granted, with this administration that’s an utterly plausible premise, but the notion that a federal judge should allow his determination of the scope of a constitutional right to be based on the fact that the President might then blatantly disobey the law is certainly a novel addition to our jurisprudence. One which the Bush administration will find many uses for, one imagines.

My other favorite piece of “logic” (since Bates’ opinion places such emphasis on that word) is that, since the FISC has been generally secretive since its creation 1978, there can therefore be no “tradition” of access for First Amendment purposes. So, all you have to do to shield your activities from public scrutiny is (1) create a new court (or agency, or what have you), and (2) start right away with denying public access to its records. Never mind that your activities — such as, oh, pronouncing the scope and meaning of federal law — are ones that traditionally the public has had access to. No, as long as you never allow that pesky tradition of access to your new court to develop, you’re home free. Neat trick! One, again, that I imagine the Bush administration will have many ideas for utilizing.