When I return full time--ideally on Wednesday--I hope to address the matter of FISA, and in particular its basic constitutionality. Commenter TexasDude has written a number of comments that probably reflect commonly held views. For example:
TexasDude January 11, 2020 at 8:14 PM
The FBI, DoJ, NSA, and CIA need to be disbanded now.
They are all for the government, not the Constitution, let alone for the people.
They, along with many others in government, believe they, and only they, know what is right and correct.
I am tired of this.
And especially this morning:
"sysconfig" on a post by Sundance ar CTH about this gives a link to a NYT article from 2002 noting abuses under Clinton and W. This was before the NSA database, but they were building towards it.
Note the fact it is all the same thing ... FBI, etc, abuse FISA somehow many times, FISC judge writes critical opinion, FBI etc come with arguments and statements they will do better, judge smiles and goes away.
Also note how the article states the FBI asserts it needs more and expansive surveillance powers due to 9-11. In further support, they argue that one of reasons for 9-11 was their gun shyness due to a critical judge's opinion on their abuses.
Sundance believe this is an inherent fact of the system itself. It appears to be and was made worse by the Patriot Act and Obama.
I'm afraid that a lot of this is derives from non-reality based libertarian fantasy interpretations of the Constitution that lack any grounding in history. CTH, of course, is a major propagator of such simplistic views. It's a bit like Biblical interpretation that relies on a "plain reading" of the KJV--all we need to understand the Constitution is a copy of the document itself, which can be whipped out of our hip pocket any time its needed.
If only it were that simple! But it's not.
I have in the past referred several times to eminent scholars who contend that FISA is itself unconstitutional. Those who accept the CW of libertarian propaganda assume that repeal of FISA would put an end to government "spying" on We The People. However, what these scholars mean when they say that FISA is "unconstitutional" is that FISA is an unconstitutional infringement of the Executive's constitutional powers re national security. As a result, the reality is that repeal of FISA would lead to something a bit like "constitutional carry": government surveillance of any activity connected in any way with "foreign powers and their agents" would be put on steroids. We would, in effect, return to the constitutional status quo as of the Keith case (1972).
Again, none of this is simple, and especially not in the current environment of Big Data and almost unimaginable capabilities for data collection of all sorts. We have every reason to distrust government activity in the current environment, and especially with regard to government cooperation with political factions that control social media and search capabilities that have become in the nature of public utilities. The thrust of the constitutional scholars who criticize the FISA regime is that, by granting executive agencies pre-approval for their actions, the FISA regime essentially makes most policing of the intel agencies virtually impossible. But a return to the pre-FISA state of affairs will not be trouble free.