White House Willing To Talk About Surveillance

Nick Gillespie | February 9, 2006

Who watches the watchers? Or, perhaps more accurately, who watches the White House, which told the National Security Agency to watch a lot of people, including U.S. citizens sans search warrants? Well, it turns out that Congress does:

After weeks of insisting it would not reveal details of the National Security Agency's warrantless monitoring of Americans' phone calls and e-mails, the White House reversed course Wednesday and provided a House committee with highly classified information about the operation....

The shift came the same day Senate Judiciary Committee Chairman Arlen Specter, R-Pa., announced he is drafting legislation that would require the secretive Foreign Intelligence Surveillance Court to review the NSA's monitoring program and determine if it is constitutional.

It also came after Rep. Heather Wilson, R-N.M., chairwoman of a House intelligence subcommittee that oversees the NSA, broke with the Bush administration and called for a full review of the program, along with legislative action to update the 1978 Foreign Intelligence Surveillance Act (FISA)....

More here.

The updating of FISA law to legalize beyond question the White House's plan seems a likely outcome of the hullabaloo. Indeed, that's basically what conservative Heather Mac Donald called for in a recent NY Post piece. After allowing that the plan "probably did violate the Foreign Intelligence Surveillance Act," she argues the act needs to change:

FISA's probable-cause standard is a belated encroachment on national defense that contravened centuries of constitutional thinking. The Fourth Amendment's probable-cause requirement governs criminal prosecution--to ensure that the government's police powers are correctly targeted and do not unreasonably invade privacy.

But judges and criminal evidentiary standards should be irrelevant when the government is gathering intelligence to prevent an attack on the country. A federal judge has no expertise in evaluating the need for and significance of foreign intelligence information. And the standard for gathering intelligence on our enemies should be lower than that for bringing the government's penal powers to bear on citizens.

Whole thing here.

In his great interview with Reason last year, Fox News legal honcho and ardent civil libertarian Judge Andrew Napolitano talked about how FISA has already changed over the years--always toward a weaker standard for action and casting a wider net as to who could be caught under its net. Check that out here.

What we're likely witnessing, then, is the next devolution of FISA. Hooray for our side.

Reason's Julian Sanchez and Heather Mac Donald duked it out over the PATRIOT Act here.

Comments

Business babe|2.9.06 @ 10:02AM|#

I don't know much, but I agree with this Heather MacDonald person on a few issues. I think there has to be some way that the government can look into suspicious activity without going through all the red-time consuming-tape every time.

|2.9.06 @ 10:07AM|#

Yes, that ability to get the warrant 72 hours AFTER the wiretap is just too onerous a burden when, uh, seconds...er, minutes...er, hours...um days matter!

|2.9.06 @ 10:13AM|#

I'm sure this has already been said, but it seems that the big beef Congress has with this whole wiretap thing is not that Bush authorized it, but that he essentially didn't say "mother may I." They're pissed but for entirely the wrong reason.

R C Dean|2.9.06 @ 10:27AM|#

I would feel a lot better about this Congressional oversight if so many Congresspeople weren't such obvious and terrible security risks.

Just imagine that the NSA program does things that AQ doesn't know about. (This has happened in the past - at one time we could track satellite phones and AQ didn't know it). Just imagine that this activity generate useful intelligence. Finally, and I know this is a stretch, imagine that after this is all laid for some Congressman he runs his yapper to the press.

I know, I know, hard to imagine that anyone in Congress would sacrifice the greater good for their short-term personal benefit. Still, its just possible that Congressional oversight will cost us more than it is worth.

|2.9.06 @ 10:46AM|#

(This has happened in the past - at one time we could track satellite phones and AQ didn't know it).

Not so much, really.

|2.9.06 @ 10:51AM|#

sage, that's better than nothing. I doubt they would've put up much of a fight had the Administration approached them to expand FISA in the first place. Unfortunately. However, we do receive some protection because of the rivalry between the branches. It's not enough, and we should expect a little more zeal when the Consitution has been abused, but that's about all we have today.

Legally, the Administration is digging a deeper hole. It's coming close to implicitly acknowledging (while, ironically, expressly denying) that Congress spoke on this very issue and that the president did exceed the limits of the FISA. Even if Congress amends the FISA to accommodate whatever it is the White House thinks needs to be done, the fact remains that, rather than going to Congress and behaving legally, the Administration chose to act outside the law instead.

Yeah, yeah, we're "at war". So what? Do we want limited government or not? If not, let's just say so and be done with it. What's incredible about this is that FISA is amazingly weak already (weak in 4th Amendment terms, I mean) and allows for retroactive warrants. No one on the national stage (of the reasonably sane ilk, anyway) is at all suggesting that we shouldn't be spying on the baddies. It's just a question of honoring the limits that the president swore to honor.

I'll tell you another thing. I've practiced law long enough and had enough interaction with the federal government (including a stint as a legal fellow at the White House) to recognize that this extra-legal wiretapping was done first and justified later. While I'm sure the AG was asked to look into the legality of it beforehand, the serious analysis apparently only happened once the cat was let out of the bag. I may be wrong, but if I'm right, that's a bad sign. For all of you Bush-is-always-right folks, just remember, a future president might use this type of extra-Consitutional behavior to justify some crazy action to, say, impose the Kyoto Accords on the U.S. Or something else you wouldn't like. Precedent matters.

|2.9.06 @ 10:53AM|#

"I would feel a lot better about this Congressional oversight if so many Congresspeople weren't such obvious and terrible security risks."

So the American people don't have the right to decide what the balance between alleged "national security" and the ability to monitor how their tax dollars are being spent by electing someone who favors the latter over the former?

|2.9.06 @ 10:56AM|#

PL is right. It doesn't matter whether one branch checks another out of principle or peevishness. The Founders set up the system so that they'd fight each other, not so they'd issue one another lofty reminders about the importance of principle. In one of the Federalist papers it's remarked that (I'm paraphrasing) "These checks and balances may mean that now and then a good law will be voted down. But our politicians seem to have no shortage of ideas, so it's better to slow them down and accept that now and then we might toss out a good idea."

|2.9.06 @ 11:07AM|#

And, thoreau, it brings us back to why direct election of Senators is a bad idea. The rivalry between state-beholden Senators and Representatives was quite a bit stronger before the 17th Amendment was ratified. Gridlock. Inaction. Inefficiency. Excellent tools for protecting us from a government that will inevitably grow too authoritarian, otherwise. We're a flawed species, and we need institutions that protect us from ourselves.

Dave W.|2.9.06 @ 11:17AM|#

Thank you Pro Libertate. I have seen people refer to the direct election thing b4, but I didn't know why it was important.

|2.9.06 @ 11:25AM|#

Dave W., it's a difficult issue. Making our institutions "more democratic" sounds good to a lot of us, but I believe, as I think many people around here do, that liberty is more important than pure democracy. To the extent that those values conflict, anyway.

|2.9.06 @ 11:29AM|#

"And, thoreau, it brings us back to why direct election of Senators is a bad idea"

Too true. This whole idea of "withholding" federal funds from a state for, say, not raising the minimum drinking age would never have passed under the old system, as this would turn a state into a net payor in the game of federal spending (its citizens would be taxed, without any return). All of the states, as individual sovereigns, would have reason to be leery of that precedent.

Dave W.|2.9.06 @ 11:35AM|#

I've been a fan of gridlock since '94. I'm sold.

|2.9.06 @ 11:42AM|#

Better liberty through disharmony.

|2.9.06 @ 12:10PM|#

Apart from the various legal arguments involved, I think the Bush Administration looks particularly bad here, based upon how they apparently have handled the situation. First, the leak apparently came out of the Executive Branch--not the legislative or judicial branches. Second, if the revelation of this program was so damaging to national security, why didn't the White House try to resolve this problem quietly with the Congressional leadership? Instead, it appears that they simply dug in their heels and dared anyone to challenge them. How can this tactic be in the best interests of the country?

|2.9.06 @ 12:12PM|#

I think I know part of the answer, which is that Congress is leaky as a sieve, and a program this sensitive needs to be kept tightly under wraps, but that only makes sense for the period BEFORE the leak of the program occurred. The damage control part of this appears to have been amazingly bungled.

R C Dean|2.9.06 @ 12:19PM|#

Phil, thanks for the update on the satellite phone deal. Hadn't seen that.

The reason why direct election of Senators is a bad idea is that it leaves the states, as states, powerless in Washington, removing one of the primary institutional barriers to the emergence of the national government as a unitary, plenipotentiary government of unlimited powers.

So the American people don't have the right to decide what the balance between alleged "national security" and the ability to monitor how their tax dollars are being spent by electing someone who favors the latter over the former?

Of course they do. Its not like the President is unelected, you know. The problem with Congressional oversight of these kinds of programs is that it gives the Congressman from one district, elected not at all by the people who will be affected by his decision, the ability to shut down the program just by blabbing to the media. How "democratic" is that?

Rich Ard|2.9.06 @ 12:23PM|#

Far more democratic than keeping it hidden.

|2.9.06 @ 12:47PM|#

Check out this
http://www.csmonitor.com/2006/0209/p01s02-uspo.html

for more on why oversight is important. DATA-MINING.

|2.9.06 @ 12:56PM|#

Napolitano is cool.

R C Dean|2.9.06 @ 2:43PM|#

Far more democratic than keeping it hidden.

Unless, of course, a President who was elected in a national election makes the decision not to share the information. Which is more democratic, allowing someone elected by the entire electorate to make the decision, or someone elected by approximately one third of one percent of the electorate?

Really, there are lots of arguments for Congressional oversight, but "its more (small-d) democratic" isn't one of the better ones.

|2.9.06 @ 3:03PM|#

So now we're pretending "oversight" is the same as "unlateral leaking of classified information by a Congressman?"

'kay.

|2.9.06 @ 3:22PM|#

I've always thought it a necessary evil that Congress have access to ALL information. Sure, that means security can go down the toilet, but there's no reason Congress couldn't be careful about what information it asked for. But, as a Constitutional matter, what power does the president have to resist Congress' investigative powers?

Incidentally, I wasn't aware that Congressmen were bigger security threats than the appointees and bureaucrats that work for the Administration. Just where do you think the many, many leaks that do occur happen?

|2.9.06 @ 3:37PM|#

That said, there are barriers to efficiency and security that result from the open, often antagonistic, nature of our republic's checks and balances.

There are also barriers to efficiency and security that result from the fourth amendment. Can you imagine how many violent crimes could be prevented if cops could kick in doors based on suspicion? We willingly sacrifice a degree of security in the short term, because we are concerned about the threat to our security in the long term from a government that isn't kept closely in line.

Somtimes, RC, it bites us in the ass. But whaddyagonnado? Our forerunners didn't set this system up because they thought it would be groovy - they set it up because of all the oceans of blood that had been spilled over the centuries by governments that weren't limited.

This is no time to panic, dammit!

|2.9.06 @ 3:49PM|#

joe's right. We pay for liberty and an open society with inefficiency, lower security, and, sometimes, blood. I wish we could have our cake and eat it, too, but we can't. Congress can create a veil of secrecy to prevent individual Congressmen from going beserk, after all, but that should be Congress' decision. Let's not inflate the importance of our terrorist enemies, either. We can beat them and retain a free society. We did it, more or less, when fighting the Soviets, who were a million times more powerful.

Peter K.|2.9.06 @ 6:23PM|#

I hope the administration takes it the program to the FISA court per Specter's legislation and the FISA court says No Way Jose. That would be awesome!

Peter K.|2.9.06 @ 6:23PM|#

I hope the administration takes it the program to the FISA court per Specter's legislation and the FISA court says No Way Jose. That would be awesome!

|2.9.06 @ 8:14PM|#

RC Dean,

If we're going to play the "my election was bigger than yours" game, Bush is a sure loser against the Fourth Ammendment, which was passed by supermajorities in Congress and ratified by 3/4 of the states.

Wintermute|2.9.06 @ 9:06PM|#

Hotline says Heather Wilson's epiphany came the same day a poll showed her in a dead heat with her challenger.

My aging post, "Whos's Watching the Watchers?"
just keeps getting longer and longer with updates.