As this debate unfolds and more and more “facts” claimed by the NSA or its apologists are becoming understood to be materially false, the significance of the captivity of a FISA court which receives only one side of any argument before ruling — and of a Congress which receives even less candor and possesses even less intellectual training before legislating — is getting ever more important. Nowhere is this more evident than in the ways we are seeing arguments which purport to invoke the “settled principle” that “Congress is deemed to have accepted prior practice or interpretation when reauthorizing a program.”

It is critical, IMO, to recognize that the salutary principle of “deferring” to prior judicial opinions when evaluating how Congress “understood” something when legislating is wholly predicated upon accepting as a given the premise that the previous judicial process was thorough and fair: in short, that the judicial decision was the result of an open and adversarial truth-discerning procedure in which one side presents a contention and an adversary has full motive and opportunity to challenge the reasoning and evidentiary basis for the requested relief, with a court weighing and resolving disputes to reach a conclusion which people can reasonably consider “just” and can refer to to frame their actions. That presumption is simply not legitimate where, as in the case of the matters decided by the FISA court, only one party appears; that party is the government; the arguments placed by the one party before the court are not subjected to review or challenge by anyone with the resources, motive or specific familiarity and expertise to articulate reasoned arguments opposing the contentions of the government; and the Court is both without resources or, for that matter, specific expertise to scrutinize any governmental claim [and don’t forget the vaunted “presumption of regularity”, which too raises its head in such proceedings] and has less motive to doubt or probe than would any “zealous advocate” handed the same brief. This being the situation when the FISA court undertakes to decide any government application placed before it, it is plain that (1) any “presumption” of adversarial winnowing is plainly suspect and that (2) every instance of chicanery or lack of candor in government presentation in such circumstances is more, not less, detrimental to the legitimacy of the process itself. “Like the thirteenth chime of a crazy clock, which calls in question those which came before”, it’s awfully difficult to listen to those whose first line of defense is “the FISA Court previously ruled….”

To then attempt to bootstrap a prior, ex parte and secret FISA ruling into even higher precedential repute on the grounds that Congress “re-enacted the statute and must be deemed to have been aware and in agreement” with such a secret determination cannot follow in these circumstances to the same degree as it might where, for example, the court ruling being alluded to can be checked out of a public library or pulled up online. The salutary principle of statutory construction which recognizes that public law is publicly known and holds Congress to knowing it is one thing; to respond to the disclosure of facially illegal activities upon being made aware of their existence by saying there was a secret opinion interpreting the clause now shown to have been abused is something entirely different. That’s a big part of why the dispute over whether Congress really did know (the crux of EW’s absolutely correct emphasis in this particular matter, for example) is that it’s grossly unfair to saddle the whole country with a “justification” for illegal activity by attempting to rely upon a principle of Congressional knowledge and affirmative acquiescence that is dependent upon open and public law when what you’re trying to do is foreclose fair and just consideration of circumstances now disclosed by claiming those who missed the “secret law” have forever “missed their chance.”

Whether or not Congress “re-upped” a statute is not, and cannot be, a principle so immutable that it effectively forecloses correction of error. As the current debate proceeds, the question for America — and for Congress, and for the courts — is what the NSA and its pals are and have been doing, and whether that’s OK. That question must never be subjugated to “well, they’ve done it so far, so it must be OK.” And the very plain fact is, the “time-honored principle of statutory construction” that the NSA’s apologists are so quick condescendingly to invoke (that means you, Mr. Wittes) doesn’t fit in the Star Chamber environment complementing the War on Terra.

@Bill Michtom: Thanks for the note. Apology to all for bogarting electrons.