My point is that without smacking down the Executive’s claims that it has the power to create secret law and secret legal interpretations, that it can hide information from congressional oversight (and outright lie to congress) and refuse to allow judicial review of its interpretations of law, they really don’t need cover of law. They can simply create a secret interpretation of any law and use that to justify their activities. I still maintain that Section 215 does not, in any rational way, allow for dragnet surveillance. No court has been allowed to rule on that question. Was it foreseeable that such a twisted reading could surface? Sure, why not. But that doesn’t mean its any less twisted.
Would Obama stop dragnet surveillance if the Patriot and FAA were revoked? Would the next president? Its hard to say because if they retain these other powers there is no way to even know what they are doing (except for the off-chance of another Snowden). The FISA court does not rule on the legality of the Executive’s legal interpretations. If just makes sure the Executive complies with its own interpretations. Nicely rigged, no?
By all means we should revoke these awful laws. They clearly stretch the 4th amendment to the breaking point and beyond. But what the Executive is doing goes way beyond these laws, giving them complete unchecked power. Which doesn’t just break the 4th amendment, but the 1st and 5th, and frankly most of the division of powers – the heart of our Constitution.
