Judges in Space

URL: Is FISA worth preserving?



This article gets at the fundemental problem with using courts in the
war on terror. We don't want to monitor people we suspect are
terrorists but find the people that we don't yet suspect are
terrorists.



The current use of FISA courts takes judges into a new function, of
judging actions taken by the government that are not related to a
particular adversarial proceeding. They are just making general policy
judgements.



This is, of course, a function of the fact that these wire tapping and
information monitoring procedures are searches unrelated to any
particular charge--that is what intellegence opertations are. That is
what makes them different from criminal investigations. They aren't
directed at tieing a particular person to a crime that has already
occured, they are about detecting people that haven't done anything yet
to make sure it stays that way.



Putting judges into the loop is besides the point. One can agree or
disagree with the policy, but the mechanism for regulating policy is
the legislature and executive: elected officials making prudential
judgements about the future. A court might reasonably step in at the
constitutional level and over-rule the whole policy, but having courts
regulate policy from day to day, unrelated to any individual case, is
simply making courts into policy makers. In this case, about the least
well qualified policy makers imaginable.

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