We'll Let You Do Whatever You Want, but Only If You Insist You Don't Need Our Permission

Jacob Sullum | March 8, 2006

Republican members of the Senate Intelligence Committee have reached a deal with the White House concerning the NSA's warrantless wiretaps that does what I predicted in a column last month: It allows members of Congress to say they're asserting their constitutional authority, even while President Bush refuses to acknowledge it. According to The New York Times, the senators are backing legislation that would "allow the president to authorize wiretapping without seeking a warrant for up to 45 days if the communication under surveillance involved someone suspected of being a member of or a collaborator with a specified list of terrorist groups and if at least one party to the conversation was outside the United States." After 45 days, the warrantless monitoring could continue if the attorney general said it was necessary for national security.

The administration is supposed to keep a new seven-member "terrorist surveillance subcommittee" in each house up to speed on the wiretap program, providing updates every 45 days. You might wonder why we need terrorist surveillance subcommittees when we already have a secret Foreign Intelligence Surveillance Court that was created to keep tabs on wiretaps involving national security. The answer is that the administration refuses to recognize the court's statutory authority. So now members of the intelligence committee are hoping the White House will follow a new law that lets it do what it was already doing, but with a few more legislators in the loop.

The legislation actually would approve surveillance wider than the administration says it has been conducting. The NSA program supposedly has been limited to communications involving suspected Al Qaeda operatives and hangers-on. The proposed legislation would apply to people the administration believes are linked to any of several terrorist groups.

Meanwhile, Bush is not conceding that he needs congressional authorization at all. "We're eager to work with Congress on legislation that would further codify the president's authority," says a White House spokeswoman. "We remain committed to our principle, that we will not do anything that undermines the program's capabilities or the president's authority." In other words: You go ahead and pass your bill if it makes you feel better. We won't feel obligated to follow it unless it happens to coincide with what we were planning to do anyway.

Comments

norbizness|3.8.06 @ 10:09AM|#

Something tells me that Bush is Niedermeyer and the Senate is Kevin Bacon as a young pledge in Animal House.

|3.8.06 @ 10:09AM|#

Just what we need...one branch of governmnet tells the other to do whatever they want, as long as they're also allowed to do whatever they want. Why did Montesquieu even waste his time coming up with "checks and balances". I'm starting to agree with liberals when they call him "King George".

Rich Ard|3.8.06 @ 10:12AM|#

This is the part of the show in which we get to see if Arlen Specter is carrying any testicles or not.

Here's hopin'.

|3.8.06 @ 10:16AM|#

It sure is comforting to live in a Constitutional Republic---even if it's by name only. That whole "checks and balances" thing was just an impediment to unlimited executive power anyway---and everyone knows that unlimited executive power is vital to fighting, um, terror. And if anyone (i.e. the judicial or legislative branches) disagrees, well, they can go pass some laws to make them feel better, but which they have no way to enforce.


FUUUUUUUUUUUUCK!!!


How in the HELL do we let these asshats get away with such a blatant violation of our constitution? How can we just sit there and let them tell the country, "we can do whatever we want, and there's nothing you can do about it!"? I think we need to abolish the office of the president and start over. You know, lay out some fucking ground rules, rules that are actually enforced.

|3.8.06 @ 10:17AM|#

"Ack, ack, wheeze, gasp-

Kick.
Kick.
Kick."

Democracy

|3.8.06 @ 10:18AM|#

Meanwhile, Bush is not conceding that he needs congressional authorization at all. "We're eager to work with Congress on legislation that would further codify the president's authority," says a White House spokeswoman. "We remain committed to our principle, that we will not do anything that undermines the program's capabilities or the president's authority." In other words: You go ahead and pass your bill if it makes you feel better. We won't feel obligated to follow it unless it happens to coincide with what we were planning to do anyway.

Exactly. Congress already passed a law in 1978, this little thing called FISA, and amended several times since. George Bush has simply declared that he is not bound by that or any other act of Congress, when he can invoke "national security."

This is precisely the lawlessness that Justice Robert Jackson rejected in his Youngstown Opinion (the Truman-era steel mill seizure case). Jackson held (and the SCOTUS has adopted Jackson's concurring opinion as its vehicle for applying Youngstown, most recently in the Hamdi case) that when Congress legislates, the Executive must virtually always obey that law; the only alternative, accoridng to Jackson, is to abandon the rule of law and endorse an Executive with dictatorial powers.

And that is what we now have, under King George: a rejection of the rule of law and the arrogation of monarchical powers.

|3.8.06 @ 10:18AM|#

Sickening. Our system relies on Congress protecting its prerogatives. Traditionally (esp. with the Senate), this has been largely true, even when one party has controlled both branches.

Whether FISA needs to be amended is a different question. Maybe it does (though I haven't heard a compelling reason for amending it so far), but I cannot understand why Congress is letting the president assert powers that he, for the most part, doesn't have. The whole argument that the authorization of force gave him the authority is silly, of course. Why invocations of "national security" send Congress all aquiver is beyond me. As I've said here before, why does the current threat justify more presidential authority than the infinitely greater threat posed by the Soviet Union? Why?

|3.8.06 @ 10:19AM|#

Magna Carta is 9/10 thinking.

If Jeebus still cares about America, somehow, someway, the democraps will accidentally win one house of Congress in the fall. This one-party rule thing isn't working out.

|3.8.06 @ 10:22AM|#

Why invocations of "national security" send Congress all aquiver is beyond me.

That's an easy one, PL. They don't care about anything besides getting re-elected, which will be made more difficult if they can be painted as soft on national security, or "putting Americans' lives in danger" for "partisan" concerns.

|3.8.06 @ 10:28AM|#

David, that's easily solved. Whenever you (as a Congressman) take a pro-liberty position, do a press conference with Chuck Norris standing next to you, nodding his head. No problems.

|3.8.06 @ 10:41AM|#

But what if your pro-security opponent has Jack Bauer by his side?

|3.8.06 @ 10:45AM|#

David-

Then you vote for the other guy. Because if Jack Bauer says do something, you'd better do it.

When you shoot Jack Bauer the bullet bleeds.

|3.8.06 @ 10:51AM|#

Ah, the classic paradox: What happens when an irresistible Norris meets and unmovable Bauer?

My guess is total annihilation of the universe.

|3.8.06 @ 10:53AM|#

Sorry. I meant, "What happens when an irresistible Norris meets an unmovable Bauer?" I was so terrified at the prospect that my typing hand was all atremble.

|3.8.06 @ 10:59AM|#

"What happens when an irresistible Norris meets an unmovable Bauer?"

You get a sequel to Brokeback Mountain?

|3.8.06 @ 11:01AM|#

Jack Bauer would never hook up with Chuck Norris.

Tony Almeida? Maybe. But not Chuck Norris.

|3.8.06 @ 11:01AM|#

SR, I know you're just kidding around, but that's blasphemy.

|3.8.06 @ 11:27AM|#

pro libertate -

FISA has been amended several times since 1978. One of the principal components to the PATRIOT act is a series of amendments to FISA. That's what makes this whole thing so disgusting - Bush claims that the PATRIOT act is necessary for national security and that FISA needs to be amended because it's "outdated." But at the same time he claims the unilateral authority to ignore the law whenever, in his view, national security demands it. Why does Congress even bother legislating, when they know that we have a president who willfully ignores any laws they may make except when, as Jacob put it, they happen to coincide with what he was planning to do anyway?

|3.8.06 @ 11:31AM|#

How can this sort of problem be solved? All persons involved seem to be acting rationally, trying to augment or protect their own power. Is there any possibility that people associated with the President and Congressional supporters of this deal will suffer at the polls?

|3.8.06 @ 11:34AM|#

Mona, I'm glad you're back, and I'm pleasantly surprised with what you wrote. You hit the nail on the head.

|3.8.06 @ 11:54AM|#

"SR, I know you're just kidding around, but that's blasphemy."

Ah, but who will kill me first -- Norris or Bauer?

|3.8.06 @ 12:24PM|#

The legislators are just trying to salvage something out of it, but are still giving up way too much. Someone needs to take a stand against these arrogant pricks in the White House.

Unfortunately, most people don't really know what's happening, or even that there's anything wrong with what Bush is trying to do.

Not a big surprise, of course, but it still sucks.

Timothy|3.8.06 @ 12:34PM|#

If anyone needs me I'll be installing a pill box in the back yard.

Not David|3.8.06 @ 12:43PM|#

How can this problem be solved?

That's easy. Congress can at any time reassert its constitutional authority, by drawing up articles of impeachment, trying the pretender king, and removing him from office. Bye bye, dubya. This seems like just the occasion impeachment was intended for -- the President gets uppity and decides he don't need no stinkin' laws. But since loyalty to party trumps both the constitution and common sense, it won't happen with the current Congress.

|3.8.06 @ 1:22PM|#

No, SR, you're not worthy of direct dispatch by any member of the pantheon. However, the Norris is merciful and will send Steven Seagal to end your pathetic existence. A shameful end, but one better than you deserve.

|3.8.06 @ 2:05PM|#

Thoreau:

Thanks, I guess, tho I don?t know why you?d be surprised that I take the position I do regarding Bush?s blatanly illegal spying program(s). (And there almost certainly is more than one.)

Yeah, I voted for him in ?04, but I have never ceased to be the rule-of-law, small govt libertarian that I have been virtually my entire adult life. I believed the invasion of Iraq was the right thing to do, but the evidence of Bush?s gross, across the board incompetence was not so evident then. Very clearly he didn?t pay one whit of attention to the many analysts who warned that the aftermath would unleash tribal, sectarian warfare if not planned for. So we now have a state of virtual civil war; a total mess, with 130,000 of our sons and daughters over there and no obviously good way to get them out.

The Schiavo thing totally sent me around the bend, and was my first big clue that Bush, Frist and the new, populist GOP are an actual menace to our constitutional order. But with the NSA thing, well, I now regard them as the enemy of my country. Bush is violating the law -- subverting the rule of law -- and insists he may and will continue to do so. This is fucking outrageous.

In reliance on John Yoo?s notions of a monarchical Executive, George Bush has assumed the powers of a king; that isn't hyperbole, and some of his defenders like Harvey Mansfield in The Weekly Standard have literally claimed we need Bush to have the powers of a prince. And some of the meek GOP senators find that state of affairs, oh, just a tad troubling, but have been beaten into obedience. No investigation by the Intelligence Committee. No serious attempt to stand for the rule of law. Long live the prince.

I didn't vote for monarchy when I pulled the lever for Bush.

At this point, I plan to vote Democrat in ?06, even if it means voting for someone who runs on the platform of Fidel Castro. We must have gridlock, and we must have an opposition party in control of at least the House or Senate. Never have we more needed some sector of govt that will rein in the Executive, and the GOP isn?t gonna do it.

|3.8.06 @ 2:22PM|#

So...if I draft a reply in Word, all my apostrophes translate into question marks? Alrighty, then.

|3.8.06 @ 2:37PM|#

I know have incontrovertible (is that a word?) that Republicans are every bit as stupid, corrupt and venal as Democrats...and more brazen about it.

I'm glad I dumped the Republican party in 2004 and re-registered as an Independent.

Scumbags.

|3.8.06 @ 2:37PM|#

And I certainly agree with Bruce Baretlett and Andrew Sullivan at this Cato affair. George Bush is to limited govt and sensible spending what Madonna is to chastity.

Further, and again, he has grabbed the powers of a king, in wholesale subversion of the rule of law and the constitutional, tripartate govt established by the Founders. Except for court appts -- the only remaining area where he makes me happier than most Dems would -- what possible reason could there be for a libertarian or Goldwater conservative to support the modern, Bush GOP?

|3.8.06 @ 2:43PM|#

I'm glad I dumped the Republican party in 2004 and re-registered as an Independent.

Bruce Bartlett, who was in the Reagan Administration and has conservative creds up the wazoo -- and who just released a book reaming George Bush's ass -- said at the Cato thingie I linked to above, that if it were between Bush and Bill Clinton, he'd vote for Clinton.

Me, too.

|3.8.06 @ 2:46PM|#

what possible reason could there be for a libertarian or Goldwater conservative to support the modern, Bush GOP?

Some people still use the phrase "9-11 changed things" to justify all increases of government power. Why should we allow random warrantless searches of New York subway riders? Because 9-11 changed things. Why should we let the government listen to phone calls without bothering to get a warrant first? Because 9-11 changed things. Why let the president be the sole arbiter of what the president can and cannot do? Because 9-11 changed things. There is this apparently sincere attitude that if a Democrat had been in office these last few years, we'd all be bowing to Mecca and wearing burkas now.

|3.8.06 @ 2:52PM|#

Mona-

If I seemed surprised, it was only because in our last exchange on this forum, regarding subway searches, you took a stance that seemed to place a higher priority on security over process. I think we all got a little carried away in those threads. But I agree with everything you say here. Welcome back.

|3.8.06 @ 3:05PM|#

If I seemed surprised, it was only because in our last exchange on this forum, regarding subway searches, you took a stance that seemed to place a higher priority on security over process.

As best I can recall, I just felt that in exigent circumstances like a terrorist threat the NYPD believes to be actual -- and even if you think the searches are stupid -- travelers can be expected to submit to them; it is a voluntary context. I mean, we don't all scream that the Republic is falling because of the security screening at airports.

But secret, electronic surveillance is whole different matter, especially when there is a law already in place that covers exigent circumstances, and Bush just says...well, it is too confining for His Highness.

|3.8.06 @ 3:16PM|#

As best I can recall, I just felt that in exigent circumstances like a terrorist threat the NYPD believes to be actual

It wasn't in response to an actual threat; it was "This happened in London so it might happen here, so let's do these searches even though we admit they won't actually work."

But that's why some people still support these warrantless searches and other things--people who are scared aren't good at thinking straight, and are often ready to give their freedom away to someone who will make them feel better. That's where the whole "Constitution as death pact" idea comes from.

Although if you ask these people if terrorist attacks in Saudi Arabia are because the Saudis have too many civil liberties, they'll usually just get mad.

|3.8.06 @ 3:23PM|#

It wasn't in response to an actual threat; it was "This happened in London so it might happen here, so let's do these searches even though we admit they won't actually work."

Well,however you want to characterize, I'm pretty sympathetic to the city of NY and its police dept, and am not going to get my knickers in a twist when the do rather benign things to calm a frightened population. But the Bush Admin is a whole different matter, and FISA is a goddam law, not a suggestion.

|3.8.06 @ 3:37PM|#

and am not going to get my knickers in a twist when the do rather benign things to calm a frightened population

This assumes that making it impossible for the average New Yorker to get to work without being subject to a warrantless search is "benign." I'm not trying to start that old argument again, but I say this in all sincerity: whatever thoughts went through your head when you were ready to chuck the fourth amendment right out the window in order to "calm a frightened population" in Manhattan, THAT is what also makes people support the president here.

After all, bag searches are perfectly benign if they calm a frightened population and you have nothing there to hide, right? Why wouldn't phone taps be the same thing? Heck, they are even more benign--you won't be late for work because your phone got tapped this morning; you probably won't even know it happened.

|3.8.06 @ 3:43PM|#

Let's not refight those battles.

Aw, hell, who am I kidding. Much of H&R is fighting battles from old threads.

|3.8.06 @ 3:47PM|#

Let's not refight those battles.

Not trying to at all. I'm just explaining the mindset of people willing to give up civil liberties in the name of safety, or at least making people feel less scared.

|3.8.06 @ 4:04PM|#

I'd also point out that things like warrantless wiretaps are far more likely to stop an actual terrorist attack than are warrantless searches of a small percentage of subway riders, so from a safety-and-security standpoint, supporting the wiretaps actually makes more sense than supporting the bag searches.

Nonetheless, I oppose both.

|3.8.06 @ 4:14PM|#

I'm not trying to start that old argument again, but I say this in all sincerity: whatever thoughts went through your head when you were ready to chuck the fourth amendment right out the window in order to "calm a frightened population" in Manhattan, THAT is what also makes people support the president here.After all, bag searches are perfectly benign if they calm a frightened population and you have nothing there to hide, right? Why wouldn't phone taps be the same thing? Heck, they are even more benign--you won't be late for work because your phone got tapped this morning; you probably won't even know it happened.

But you are making a fundamental error here, that is seen rather widely. The problem with Bush's warrantless surveillance is not that it violates the 4th Am; it might, but the S. Ct. has not ruled on the matter, and there is a good bit of lower court case law holding that in the national security context -- as opposed to criminal -- the President does not need a warrant to search or wiretap. Every President has done it, including Clinton w/ physical searches before those were brought within FISA.

Setting aside whether the NYPD has authority to act within a national security, warrantless context, the subway checkpoints are not much more egregious than airport screening or sobriety checkpoints.

In any event, the issue wrt to Bush's NSA program is not the 4th Am. It is FISA, a law duly passed by Congress that extends statutory protections to U.S. persons as defined in that statute.

And Bush simply declares and acts as if FISA does not bind him, which is outrageous. He is trashing the rule of law. And that law-breaking, more than any nebulous area of 4th Am law, is the huge problem.

|3.8.06 @ 4:20PM|#

Mona, I seem to recall that you are either a lawyer or have had legal training. But most people, especially the ones who like the wiretaps, have not. Again, I'm not trying to restart the debate on the subway searches; I'm just explaining why so many people think these wiretaps are just fine: because they think we'll be safer. Or at least we'll feel safer. And as I already pointed out (which you may not have seen because you were typing your post at the time), warrantless wiretaps are actually more likely that bag searches to stop an actual attack.

The non-legally-based, emotional reasons you have for supporting these bag searches to "help calm a frightened population" are pretty much the same reason people support the wiretaps, which won't merely "calm" a population but might even manage to "protect" it. Me, I don't think a feeling of calm or even legitimate protection is a reason to ignore civil liberties, but then again I rarely "think of the children," either.

|3.8.06 @ 4:46PM|#

But that's why some people still support these warrantless searches and other things--people who are scared aren't good at thinking straight, and are often ready to give their freedom away to someone who will make them feel better.

I don't think the folks that allow these idiots to stay in power are really all that frightened.

Conservatives are simply willing to submit to authorities they think share their views (at least on the surface) and not challenge the whole thing too much. That the powers that be are "protecting them" is just the language they've uncritically borrowed from the punditry.

They're not as scared as they are lazy and disengaged. Like most people.

|3.8.06 @ 5:11PM|#

If you think I'm wrong about this, talk to someone you know has been a conservative for a while.

They like conservatives because they want lower taxes and limited government. They want less business regulation and a host of other things conservative.

Now, after 12 years, nothing they want has been achieved. Even lower taxes are being replaced by higher property taxes.

Every conservative I know - especially the small business owners - complain because they don't have any health care because they can't afford it...but at least it's not "Socialized Medicine."

We all have to jump through MORE hoops...not less with our business paperwork. Government is bigger than ever, more wasteful than ever and *ahem* dummer and more visibly corrupt than it's been since Harding was president.

But it's NOT their own elected officials now in power that they constantly bitch about...it's "the Liberals!"

THAT'S why I'm an independent.

|3.8.06 @ 7:50PM|#

Although I made it clear that I disagreed with Mona over the subway searches, I do get the distinction that she's drawing. The subway searches were arguably in a legal gray area for a number of reasons. OTOH, the President's rationale for the wiretaps is "I'm the President, so I can do what I want." It's one thing to give the gov't the benefit of the doubt in a legal gray area when security is at stake. It's another thing to give the government an unlimited blank check to ignore the law.

Mona, I may not agree with you, but I understand the distinction that you draw.

And I agree on how urgently we need divided government. We need a legislative branch that will refuse to accept "Divine Right of Presidents." The Dems may not do a very good job of standing up to it, but they're all we've got. If this fall's races turn out to be close where I live then I will have no choice but to vote Dem. Otherwise I'll vote LP for symbolic reasons.

|3.8.06 @ 9:15PM|#

thoreau,

It is on th basis you raise - and that alone - that I may have to consider voting Dem rather than voting for nobody.

Republicans have gotten far too scummy these days.