It's not the wire tapping...
Why is it that every defense I hear of the warrantless wiretapping program seems to miss the point of the argument?
The issue isn't over whether wire tapping is an important or necessary part of the war on terror. If you want to convince me that the President's program is legal, don't proceed from the premise that terror is bad and that it's bad for America not to be able to tap phone calls and e-mail to track down terrorist threats.
The point of the scandal isn't the tactic, it's the unregulated use of it. That's supposed to be what the FISA court is there for. Now, personally, I'm a little bit leery of secret courts anyway, but at least with the FISA court, SOMEONE is double checking the program, SOMEONE is making sure that the targets are legit, that the program isn't used to spy on political rivals or others not actually connected with terrorism.
Administration apologists paint a picture of those who have questions about the program as America haters who want the terrorists to win, or believing America needs to be punished, but in most cases, that's a spurious characterization.
Let's put this in different terms: If you're doing your laundry at a Laundromat, you have the right to use the dryers. You do not have the right to hotwire them so you can get a drying cycle without paying. And the argument I keep getting in favor of the current Bush program would be like defending hotwiring the dryers by saying "Hey, if we're not allowed to dry our clothing, it'll get wet and moldy! To protect ourselves from mold we HAVE to be able to dry our clothing!".
I'm not disputing that you have to be able to dry your clothing, I'm saying you have to follow the rules in order to do it. I'm not saying we should never wire tap anyone, I'm saying we need to follow the rules to make sure civil liberties are respected in the process.
Look, people my age and older remember Richard Nixon. He made it clear what illegal use unregulated wire tapping can be put to. NO President should have that level of power, not President Bush, not President Clinton, not President Nixon, not anyone. It has nothing to do with war time or peace time. It has nothing to do with hating America or the terrorists' rights.
Having a driver's license gives me a license to drive, but there's still oversight. There are still police officers tasked with checking to see if I and the other drivers are speeding, driving erratically or driving drunk. It's about the oversight. Having a driver license doesn't allow me to drive 150 mph down the road and complain that my license gives me inherent authority to operate my vehicle and that I should be allowed to circumvent the police oversight of my operation.
Is it starting to make sense? It's not the use of wire taps. It's making sure they're used in a lawful way, consistent with the Constitution, and protective of the civil rights of American citizens. Use the 72 hour retroactive FISA warrants when you have to. They're provided for in the law exactly so that in these sorts of cases, we don't lose vital time waiting for a warrant when time is of the essence.
But it is not up to the President to decide what laws he's going to obey and which he is going to ignore. FISA was set up to regulate EXACTLY the behaviors that are going on right now. Not prevent, regulate.
And when anyone makes an argument that they shouldn't have to submit to oversight or have anyone check the legality of the things they're doing, that should be a warning bell to everyone that this is a person who most needs oversight.
Liam.
posted by Liam at 2/18/2006 10:55:00 PM
9 Comments:
Your premise is that it is illegal for the President to use electronic evesdropping or wiretapping to gather foreign intelligence without judicial oversight or Congresional oversight if any of the agents involved are in the border of the USA. I refer you to the following article from the Opinion piece in the WSJ. Admittedly, I do not know the credentials of the writer, but being a student of history myself, he says it better than I could.
http://www.opinionjournal.com/editorial/feature.html?id=110007734
You will probably need to copy and paste.
Sunday, February 19, 2006 12:19:00 PM
This is the part of the article that I was referring to. Maybe you want to read the whole thing but this is it in a nutshell.
"I'm not saying that what the president authorized was unquestionably lawful. The Supreme Court in the 1972 "Keith case" held that a warrant was required for national security wiretaps involving purely domestic targets, but expressly distinguished the case from one involving wiretapping "foreign powers" or their agents in this country. In the 1980 Truong case, the Fourth U.S. Circuit Court of Appeals upheld the warrantless surveillance of a foreign power, its agent or collaborators (including U.S. citizens) when the "primary purpose" of the intercepts was for "foreign intelligence" rather than law enforcement purposes. Every court of appeals that has considered the issue has upheld an inherent presidential power to conduct warrantless foreign intelligence searches; and in 2002 the U.S. Foreign Intelligence Surveillance Court of Review, created by the FISA statute, accepted that "the president does have that authority" and noted "FISA could not encroach on the president's constitutional power."
Sunday, February 19, 2006 12:23:00 PM
Here is the writer's finishing paragraph. Also included at the end is his credentials. Thought you might find all of this of interest.
"Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country."
Mr. Turner, co-founder of the Center for National Security Law at the University of Virginia School of Law, served as counsel to the President's Intelligence Oversight Board, 1982-84.
Sunday, February 19, 2006 12:43:00 PM
Thank you for the article. We're having dinner and feeding the baby, so I'll keep this brief and write more when I've read the article in question.
My concern, and I think the concern of many constitutional scholars, is that while yes, surveillance of foreign powers does not require a warrant, anything which involves one or both ends of the conversation WITHIN the bounds of the country runs a terrible risk of abuse if it's solely up to the President to declare that the person or persons on whom he has ordered such surveillance is a foreign power.
Again, remember Richard Nixon's illegal tapping of the Democratic party's headquarters. If it weren't for Mark Felt recognizing that these activities were illegal, we might never have learned that Nixon was violating the law.
That's why oversight is so very important. Without it, the President MAY be entirely within the law (although the recent revelation that of the thousands of wiretaps gotten through this program, virtually none led to terrorists and a significant portion led to innocent Americans gives lie to the idea that the President is only spying on foreign powers and their agents), but if he chooses to stray from it, there's no way to know.
Do I think the President is spying on people he shouldn't be spying on? I'm not prepared to assert that. But am I certain that he's NOT spying on anyone he's not supposed to spy on? No. And am I willing to believe that every President from now on will use the law entirely legally, if it's only up to his or her word that the target of the spying is a legal target? Absolutely not.
Again, it's not a matter of whether the President is exceeding his authority or doing anything illegal. It's a matter of knowing that power tends to corrupt, and unchecked (aka "absolute") power tends to corrupt more. Oversight isn't to CATCH the President doing something wrong, it's to keep him in line so that he's not tempted TO do something wrong.
If the Administration were to open it's books to a bi-partisan intelligence review and allow a thorough examination of every wire tap and every investigation undertaken under this program, and the results of that examination completely exonerated the President, his Administration, the NSA and the FBI of any wrong doing or violation of citizen's Constitutionally guaranteed rights, I would STILL say that the program needs continued oversight.
Just to make sure that today's justified searches do not become tomorrow's political witch hunts.
(This is getting long, I have to go have dinner with my lovely wife and infant son. Back later to read the article and comment more.)
Liam.
Sunday, February 19, 2006 6:57:00 PM
Still not through digesting the whole article, but...
I was thinking more about oversight. The issue really is one of trust in people's better natures. I've had too many examples in my life where better natures have not been in evidence.
How many people do you know who have cheated on their spouse or significant other? How many more haven't only because they've never been faced with the prospect of a willing, attractive member of the appropriate gender in a circumstance where it was unlikely they'd get caught?
Or let's ask it another way (and you don't need to answer this, just think about it): How much faster would you drive if you knew, absolutely knew, that you would not cross paths with any police officers that day?
Or if you knew the meter maids were not patrolling the block you were parking on that day, would you still pay the meter?
If you could be absolutely certain the IRS would never catch it, flag it, or audit you, would some deductions of a highly dubious nature find their way onto your tax return?
That's the point of oversight. It's not that you HAVE done anything wrong, it's that if you do, there's a significant deterrant in knowing you might get caught (and that there are consequences if you do).
That's why power corrupts. Human nature states that the more powerful or important you are, the more you tend to feel like the rules are for other people. You convince yourself that you're hurting no one, or even that since you're more enlightened, you can break the rules to the good of society.
So again, it matters little whether President Bush is the most noble, honest man to ever hold the office or whether he's slightly inferior to Joe Isuzu in the truth department. Over time, we will have both honest men and scoundrels holding the post of President, and the oversight, the checks-and-balances, are in place to keep the honest Presidents from being tempted to stray a little, and the scoundrels from... being scoundrels.
And I'll finish with a confession: I know that I'd be corruptable in a position of power. I've been in positions of power in small areas (big fish in a little pond), and I know I've had a tendency towards ... enjoying the perks. And I'm pretty certain I'm one of the more moral people you'll run in to.
Liam.
Sunday, February 19, 2006 11:58:00 PM
Okay, I finally got to give a careful reading of the opinion piece linked to above (for those who hate cut-n-paste, here it is in linked form).
My problem with the opinion piece is that it proceeds from several unproven assumptions, the largest of which is that this surveillance is being done to foreign powers and their agents exclusively.
On February 5th, the Washington Post had this article which details the fact that most of these wire taps have led to innocent Americans, with no one of any identifiable terrorist affiliation on either end of the call.
This is a far cry from the intent of the Constitution, which is to say that in war time (we'll get more to the idea of "war time" in a bit), the President can engage in spying on enemy targets without warrants. That means TARGETTED spying, not the (what appears to be) fishing-trawler expedition that the current program appears to consist of. Keep in mind, the framers of the Constitution didn't know anything about electronics. When they talked about surveillance, they were talking about spies and intercepting physical mail. Just like they could never have envisioned the destructive fury of the atomic bomb when crafting the Second Amendment, so to they could not have envisioned a world in which millions of communications could be swept up in a broad net in the process of spying.
The Constitution was never intended to give the President (even in war time) the power to infringe on the Constitutional rights of American citizens, and that includes the "search and seizure" provisions of the Fourth Amendment. Tapping the phone of an American citizen speaking to another American citizen abroad is in violation of the Fourth.
Back to the original article, it makes a lot of use of the invocation of Presidential powers "during war time". We need to understand that this current conflict with terrorists is not a war in any conventional sense. We only buy into the "war on terror" as being a "war" because we've had years of the "war on drugs", which is similarly not a war in the classic sense. Understand that in the Constitutional sense, "war" is a struggle between nations and between armies, not a police action between one country and an organized group of terrorists. This is no more a conventional "war" than Elliot Ness' Untouchables going after organized crime. Sure, in both cases there was a well funded and organized group of criminals, but that didn't make it a "war" in the Constitutional sense.
The only part of the current struggle which is legitimately labeled a war is the war in Iraq, but before we invoke that as justification for Bush being a war time President, we have to determine whether that conflict was justified and whether it was properly authorized by the Congressional directive authorizing the use of force against those who hit us on 9/11. Almost no one is still seriously pushing the argument that Iraq or Saddam Hussein was involved in 9/11.
So back to the original WSJ opinion piece, I take it as just that: someone's opinion, not necessarily backed up by facts. When I have a few free minutes, I'm going to look for two opposing opinions that came out recently, so I can point you to them. One was a letter written by about a dozen law professors from both parties arguing that the program is unconstitutional, the other is the statement by an ex-FISA judge when that judge recently resigned from the FISA court.
Oh, and one last thing: The opinion piece talks about Congressional Democrats calling for President Bush's impeachment. I want to point out that, among the members of Congress, the first one to use the word "Impeachment" with regard to the President in regard to this affair was Republican head of the Senate Judiciary Committee Arlen Specter on "Meet the Press". And far from the partisan issue the article tries to portray the issue as being, among those calling for investigations into the program are Republican Senators Chuck Hagel (NE), Olympia Snowe (ME), Richard Lugar (IN), Susan Collins (ME), John Sununu (NH), Lindsey Graham (SC), John McCain (AZ) and Larry Craig (ID). Oh, and in the House there have been many as well, but none more telling than Republican Rep. Heather A. Wilson (NM), Chairwoman of the House Intelligence Subcommittee on Technical and Tactical Intelligence (the House committee that oversees the NSA).
Now, obviously, since the piece was written from the standpoint that Congress doesn't have the authority to oversee the President on this, perhaps the whole point of that article would be that a batch of Senators and Congressmen (of either party) calling for hearings might be less than warranted. But nonetheless, clearly it is not as partisan an issue as the opinion piece would have us believe.
Liam.
Monday, February 20, 2006 9:39:00 AM
I can't find the article I was thinking about regarding the FISA judge, but in looking for it, I found this one, which may have been what I was remembering and the idea that the judge was retiring was a faulty-firing neuron in my head.
Anyway, the head FISA judge expresses reservations with respect to the current program as well.
Liam.
Monday, February 20, 2006 10:42:00 AM
Found it... I was definitely linking two stories together. The FISA judge who resigned made no specific statement, although sources close to Judge James Robertson said that his resignation was in protest of the current program. He himself has made no such statements.
The original article was from Washington Post, but since it is over a month old (12/21/05), it can only be retrieved from archives, for pay. However, here's the part of the article I could find:
Washington Post - A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush's secret authorization of a domestic spying program, according to two sources.
U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.
Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work.
Robertson, who was appointed to the federal bench in Washington by President Bill Clinton in 1994 and was later selected by then-Chief Justice William H. Rehnquist to serve on the FISA court, declined to comment when reached at his office late yesterday.
Liam.
Monday, February 20, 2006 10:47:00 AM
The final link I promised. Here is the letter written by 14 "Scholars of Constitutional law and former government officials" questioning the legality of the warrantless wiretapping program.
These are 14 people who are experts in the field. If they question the legality of the program, or feel that given what little we know, investigation is called for, I think it's worth considering that perhaps it is.
And remember how I started this thread: It's not about whether we should be tapping phones and spying on people. These are clearly essential tools when trying to catch law-breakers and enemies. It's about how much power the President has to make use of this tool without any oversight and only his word that he's not violating anyone's rights.
I don't advocate that we stop tapping the phones of suspected members of al Qaeda and others, just that we do it in a legal fashion which ensures protection of civil liberties and helps to prevent abuse of the program.
Liam.
Monday, February 20, 2006 11:21:00 AM
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