Post-Constitutional Realities

Two essays on FISA are worth a look. Glenn Greenwald has one of his typically well-argued, somewhat wordy dissections of how administration practice is illegal. (Parenthetically, I would suggest — from my experience dealing with her — that his criticism of Nancy Soderberg does not unfairly single her out: when Soderberg takes time to argue for trashing the law she reflects at least one strain of high level Democratic establishment thinking.) Greenwald briefly mentions the real problem in passing, but Julian Sanchez hits the nail on the head. We don't want FISA loosening because we don't want government's broad surveillance powers used for political reasons. As it has been, always, in the past. Taking a page from Sanchez it makes much more sense to argue the pragmatical problem than the ethereal Constitutional limits, particularly in a de facto post-Constitutional era.