[jrochkind1]

I don't understand the argument that it couldn't require a warrant. The argument is simply that the executive branch has a constitutional right to wiretap without a warrant, unless the the constitution forbids it?

There is some judicial oversight in the FISA court of course. What's the argument for why congress can legislate that, but not a more typical warrant?

[twoodfin]

For the same reason Congress can’t require the President to get the approval of the Supreme Court before he vetoes a bill: Our Constitution gives powers to the executive that cannot be usurped or overruled by Congress, notably in this context to conduct the national defense and foreign affairs.

The FISA court exists to ensure that the executive is not operating outside his Constitutional authority, not as a gatekeeper for use of that authority at all in any instance.

[AnthonyMouse]

> Our Constitution gives powers to the executive that cannot be usurped or overruled by Congress, notably in this context to conduct the national defense and foreign affairs.

This is not true. The constitution explicitly reserves the power to declare war or enact treaties to Congress. Neither the military nor federal law enforcement can spend a single dime, or even exist, without Congressional approval. If the budget allocates no money to mass surveillance, no money is available to conduct mass surveillance.

[twoodfin]

Yes, Congress can defund the FBI, NSA, DIA, … or simply forbid them from spending money on foreign surveillance.

What they can’t do is allow them to spend money on foreign surveillance, but only if an Article 3 court gives them a warrant.

[jrochkind1]

That interpretation of the constitutional grant of foreign affairs and defense to the executive forbididng requiring a warrant is not obvious to me.

Do you have any case law to cite for this, or it's just your favored argument that you'd hope a court would agree with? You are talking about it like it's settled law. Cites?

Also, note that the cases you are talking about to which the law applies have someone in the USA involved in the wiretapped conversation as well. It wouldn't shock me if the courts -- although probably not the current supreme court, but you never know -- simply said it required a warrant constitutionally at some point in the future. It's certainly not obvious that you can wiretap an American without a warrant as long as they are talking to someone overseas.

[AnthonyMouse]

And what exactly stops them from doing that, as a condition of how they spend the money? You could certainly have budget allocation for "surveillance conducted pursuant to a warrant" that prevents the money from being wasted on useless surveillance of innocent people.

[twoodfin]

The Constitution. What you’re saying is no different from Congress declaring war and funding the army, but with the proviso they must clear all battles with a Federal judge before they’re begun.

Or funding the Department of Justice, but with the proviso that any nominee for Attorney General must be over age 60.

The power of the purse is not unlimited.

[AnthonyMouse]

Requiring battles to be approved by a judge has obvious practical problems, because they often happen in remote locations at unpredictable times, but Congress can pass all kinds of dumb requirements if they want to. That doesn't mean it's unconstitutional.

You're proposing an alternative where the executive gets to decide how money is spent. As if mass surveillance, which is a waste of money, has to be funded in order to fund ordinary investigations.

The executive is the weakest branch. It has almost no powers of its own, and shouldn't. It's checks and balances. For something to happen, the executive has to want to do it and Congress has to fund it. Not one or the other; both.

[int_19h]

The Constitution has already been shat on in all manner of ways to the point where it's not recognizable anymore. If we continue doing so anyway, we might at least do that to the citizens' benefit.