In her statement of opposition to the FISA Amendments Act, U.S. Representative Anna Eshoo attempted to remind her colleagues in the House of Representatives about the fundamental imbalance that the law would create:
“Throughout our nation’s history, the judiciary has been the most important check on an overzealous executive, and it is often through the judicial process that we uncover and remedy some of the most egregious executive misconduct. This legislation undermines and effectively nullifies the courts’ ability to hold the Administration accountable for its actions, which likely violated the Constitution.
Our nation was founded on the principle of separation of powers. The executive branch should be subject to independent oversight by the judicial branch. This legislation does not go far enough to allow the judicial branch to conduct an independent, reasoned inquiry into this critical issue.”
Eshoo’s comments ought not to remain as merely an abstract critique. They should serve as a concrete warning to Americans: Beware when one branch of government attempts to weaken the other branches that hold its power in check.
A great deal has been made about the Executive grab for power, but what about Congress?
Through the FISA Amendments Act, Congress is about to deliver a crushing blow to the power of the Judicial branch of government. All the excuses for doing so come with the excuse that courts of law have been too inconvenient, making it just too much work for the President to protect us all from the terrorists that could strike at any moment.
The Judicial branch makes things awfully inconvenient for Congress at times too, doesn’t it? Congress goes through all the trouble of passing laws, only to see the Judicial strike those laws down as unconstitutional. That must be galling to those in Congress who seek more power. Wouldn’t it all be so much easier for Congress if it could just pass laws and then be done with it?
The FISA Amendments Act plays into a kind of reflexive resentment against judges and courts who seek to assert their constitutional role as interpreters of the law and enforcers of the Constitution. Yet, as a play for congressional power, the FISA Amendments Act is half-witted. After all, the proposed law diminishes the Judicial only through a radical expansion of Executive power.
Congress itself doesn’t actually gain in the deal. It loses. The Executive has gotten into the habit of easily dismissing the laws passed by Congress as just little pieces of paper that can be rolled up and used as kindling to stoke the fire burning underneath the U.S. Constitution.
Members of the Senate who are preparing to vote on the FISA Amendments Act ought to consider this shift in power, and think twice about trusting the voices of those who say that courts of law are an inconvenient barrier in the quest to rid the world of bad guys. By diminishing the courts into insignificance, the FISA Amendments Act establishes the Executive branch as a gang free to execute vigilante justice.
Recent history in the lawless streets of Iraq should remind us that when vigilante gangs are set loose, it’s usually the innocent who end up getting hurt, not the bad guys.