I am not aiming to get into the political thicket surrounding the Program authorized by
Instead, I am concerned with the negotiation aspect of the Program. In 1978 Congress passed the Foreign Intelligence Surveillance Act or FISA. It is clear FISA was a result of a negotiation between Congress and the Executive branch. That deal was about what was workable, what objectives would be served, how the judiciary would be involved, and a host of other details. It was certainly not Congress making rules in a vacuum.
So we come forward from 1978 to the horrific events of
So the Program may be fine and necessary, but it leaves questions about the negotiations leading to FISA in 1978. If an entity (here, the Executive branch) makes a deal with another entity (here, Congress), and over 20 or more years the individuals change, is the deal still in effect? Is it in effect until it is changed or one or the other tells the other it will no longer follow the deal?
Here, the President had his people brief eight members of Congress about the new Program. But those eight were barred by law (possible felony prosecution) from telling even other members of Congress that the deal was off.
Many members of Congress have expressed problems with the fact that FISA was apparently ignored (the deal was broken). I think there are more of those than have expressed concerns with alleged constitutional usurpation by the Executive Branch or general civil liberties issues. This could affect the President’s ability to negotiate with Congress the rest of his term.
Negotiation 101: What happens after the deal is made—whether people carry it out in good faith—may be more important than the terms of the deal itself.
Negotiation 101: When a deal is made between two organizations and it is intended to run a long time, people in both expect it to last after the negotiators leave.