Spy if You Want

Kerry Howley | January 29, 2008

Cato's Roger Pilon has a Wall Street Journal piece urging the Senate to disregard all the whining about civil liberties and pass surveillance authorization already. ("The clock is ticking.") Julian Sanchez lays into him line by line. A snippet:

It bears noting that Roger's approach to interpreting the scope of executive national security powers is precisely the opposite of the approach he takes to the rest of the Constitution. When he reads "commerce" in Article I, Section 8, man that means commerce—not manufacture, not consumption, not activity that affects commerce—nothing but the literal buying and selling of goods. At the blurry edges, at any point where the scope of the power is ambiguous, he wants a narrow reading and a constrained power. The volume of intrastate wheat production and consumption may in part determine the price of wheat on the national market, but it's not interstate commerce, so on Roger's view, Congress can't touch it.

On the other hand, because "intelligence is essential" to national security, "Commander in Chief of the Army and Navy of the United States" naturally entails the power to authorize surveillance of Americans' communications with (at least) persons abroad, subject to neither limitation nor, indeed, even scrutiny by the other branches.

In December, Sanchez argued that more is at stake than retroactive immunity. Much more reason on FISA available here.

UPDATE: Over at Cato's blog, my friend Tim Lee weighs in:

The dispute is over what safeguards are appropriate to ensure that the intelligence community’s surveillance activities here in the United States are limited to genuine foreign intelligence. Roger’s position appears to be that neither the courts nor Congress may place any restrictions on domestic surveillance activities that the president declares to be related to foreign intelligence gathering. But that’s not good enough. Without judicial oversight, there is no way to know if the executive branch is properly limiting its activities to spies and terrorists, or if they’ve begun to invade the privacy of petty criminals or even law-abiding individuals.

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|1.29.08 @ 1:29PM|#

"""In December, Sanchez argued that more is at stake than retroactive immunity."""

I've been thinking the same thing. I think the future of spying on Americans is at risk. I wonder if the retro immunity is for the act of placing spying hardware in America's communications systems, therefore giving immunity to anything discovered by that hardware in the future.

|1.29.08 @ 1:30PM|#

So proud. Next, make me coffee.

Daily PoS|1.29.08 @ 1:34PM|#

Much more reason on FISA available here.

Doesn't anyone but ME care?

|1.29.08 @ 1:34PM|#

Roger Pilon is a good guy. But what on earth is he doing here?

|1.29.08 @ 1:41PM|#

"Yet not until 1967 did the Supreme Court require warrants for electronic surveillance."

Why did they start requiring warrants? Was it that telephones had become so much a part of people's lives and thus affected their reasonable expectations of privacy? ...became part of their personal effects?

"With the Foreign Intelligence Surveillance Act, passed in 1978, Congress began micromanaging foreign intelligence gathering. That produced the "wall" between foreign and domestic intelligence gathering -- with foreign-intelligence agents focused on security, and domestic agents on prosecution and hence on obtaining "admissible" evidence."

Why did they create this wall? Was there some government abuse to which they were responding?

|1.29.08 @ 1:44PM|#

Ken, Coninelpro maybe? Or was that the 80's?

|1.29.08 @ 1:48PM|#

Why did they create this wall? Was there some government abuse to which they were responding?

I'm betting you already know the answer to that question.

|1.29.08 @ 1:50PM|#

I am Jack's complete lack of surprise that Roger Pilon, a senior member of Cato would stake out this anti-liberty, fear based philosophy in a major publication.

|1.29.08 @ 1:57PM|#

Does anyone here retain any illusions that the Cato Institute is for liberty in any way, shape or form?

|1.29.08 @ 1:58PM|#

From wiki on Pilon:

"Pilon believes that Congress should be kept within its enumerated powers, excepting the Fourth Amendment, which both Congress and the President should be allowed to ignore [3],..."

[3] links to his op-ed in the WSJ.

Christopher Monnier|1.29.08 @ 2:00PM|#

Tim Lee (of the Cato Institute) disagrees with Pilon here.

A. Neal|1.29.08 @ 2:01PM|#

No, we've all been adequately brainwashed by Lyndon LaRouche-like conspiracy theorists over at Rockwell's site. You don't have to worry about us, sir. We stopped thinking for ourselves long ago.

Grumpy|1.29.08 @ 2:01PM|#

My first thoughts after watching the towers come down included "we spent fifty years trying to bring down the soviet union, now we're going to turn ourselves into them in ten years".

On schedule from what I can tell.

|1.29.08 @ 2:05PM|#

Christopher,

Some (some) at CATO may disagree, but Pilon's senior position, and the fact that it's in the WSJ, will carry (as JS points out) this as the dominant CATO position.

Like he says " I can already hear the talking point: "Even the libertarian Cato Institute thinks the president needs to be able to tap your phone without a warrant..."

Radley Balko|1.29.08 @ 2:06PM|#

As a former Catoite, I can tell you that there is significant disagreement with Roger's positions on executive power.

At times to the point of out-and-out anger.

Read Gene Healy or Tim Lynch, who have both publicly advocated positions in opposition to Roger's. Or Tim Lee at the link above. Julian is also a former Catoite.

Frankly, much as I disagree with Roger on this particular issue, I think it's a point in Cato's favor that they allow debate and disagreement among their scholars.

Russ 2000|1.29.08 @ 2:13PM|#

At times to the point of out-and-out anger.

I think it would be cool if Catoites would have duels. Earmarking pretty much ended the practice in the institution where it belongs.

|1.29.08 @ 2:13PM|#

Debate?!? Are you mad!?! Only objective truth is allowed.

Christopher Monnier|1.29.08 @ 2:18PM|#

> Frankly, much as I disagree with Roger on this particular issue, I think it's a point in Cato's favor that they allow debate and disagreement among their scholars.

But will non-libertarians grasp this nuance? I'm afraid that Julian's imagined talking point ("Even the libertarian...") will hurt the perception of libertarians amongst, in particular, liberals/progressives.

|1.29.08 @ 2:21PM|#

This is really about bulk collection without specific targets. Jullian makes it all sound so easy. You just get a target and go to FISA and get a warrent and then have the ISP filter out the info. If only it were that easy. The problem is finding the targets. Jullian and McCullah are exactly right in pointing out that scaning is not much of an invasion of privacy. I would cut and paste the quote but the web site won't let me, but he is right that it is the equivelent of protesting your cat watching you have sex. The question then becomes, if scanning is no big deal, why not let the scanning and bulk collection run to get the targets? Let the NSA run their algorythms and to collect the data and then get the warrents? If it is not an invasion to have your innocent e-mail scanned looking for a target's email, why is it such an invasion to have it scanned when the NSA is looking for any e-mail that might give them probable cause to go after a specific target?

Andrew|1.29.08 @ 2:27PM|#

>But will non-libertarians grasp this nuance?

Even most libertarians will fail to grasp this nuance, I'm afraid. It's definitely embarassing.

The Mises crowd was frothing at mouth so much, I was afraid they'd run out of ways to combine "Cato," "reason," "beltway," "cosmopolitan," "libertine," and "smear." Thankfully, that didn't happen.

kinnath|1.29.08 @ 2:28PM|#

This is really about bulk collection without specific targets.

I find the idea of bulk scanning to be far more dangerous to civil liberties that skipping the warrant when investigating a specific target.

Having the entire population subject to bulk scanning is the first step to a totalitarian state.

Julian Sanchez|1.29.08 @ 2:31PM|#

John-
We're talking about entirely different things here. Roger was making a point about extracting communications on the basis of identifying info like an IP address, phone number, email, and so on. You're talking about *semantic* analysis of message contents. I'm not actually adamantly opposed to doing that within some kind of legal structure, but that's a separate and complicated question.

Jacob|1.29.08 @ 2:35PM|#

Radley,

Cato needs to balance fostering healthy debate and preserving the Institute's message and branding. While I recognize there should be room for disagreement, I would feel slighted if Cato hired Ted Kennedy to write for them. This piece by Pilon is treading dangerously close to the line which, when crossed, makes Pilon eligible for the Heritage Foundation employee exchange program.

Cato is a pillar of the libertarian movement, and I, for one, feel betrayed. I used to be able to recommend people to them without qualification. Now will I have to say, "You should check out what Cato has to say on the matter. They always have good scholarship, unless it's written by Roger Pilon"? I was thinking of becoming a donor, but I can't put my dollars behind that kind of writing.

Maybe they're moving out of libertarian space and into general free-market Club for Growth type space. It's disappointing.

|1.29.08 @ 2:36PM|#

Having the entire population subject to bulk scanning is the first step to a totalitarian state.

Try third or fourth step. When the public accepts as a necessary method then we are totally fucked.

And to have some people fight like dogs to get these unchecked powers for the Executive branch chills me to the bone.

What are the party splits on these votes? Are there any Republicans voting against retroactive immunity or to limit the FISA Act to the status quo ante?

|1.29.08 @ 2:42PM|#

"Pilon believes that Congress should be kept within its enumerated powers, excepting the Fourth Amendment, which both Congress and the President should be allowed to ignore"

hey i wrote that in wiki! i am wiki-famous right now!!!

Also, Cato doesn't care if you donate because they are part of the Kochtopus.

|1.29.08 @ 2:45PM|#

This law does nothing less than set the major U.S. telecommunications companies and all of their advanced technological prowess in enmity against the American people and blesses unlimited and unscrutinized abuses by the U.S. gov't...now remember kids what do we call a government where corporate business interests and governmental interests coincide?

|1.29.08 @ 2:46PM|#

Why did they start requiring warrants? Was it that telephones had become so much a part of people's lives and thus affected their reasonable expectations of privacy? ...became part of their personal effects?

I would guess that it was a response to changing technology. For the history of telephony prior to the post-war era, operators would have to pay attention to the conversaton to know when to switch off the circuit. People didn't have an expectation of privacy. That's my guess, anyway.

Andrew|1.29.08 @ 2:46PM|#

Also, Cato doesn't care if you donate because they are part of the Kochtopus.

"Kochtopus!!" I knew I forgot one. Thanks, Dan.

Mike Laursen|1.29.08 @ 2:46PM|#

John's right. We should embrace the NSA's running bulk algorithms on our web traffic. Think of the possibilities. For example, they could spell check John's comments.

|1.29.08 @ 2:47PM|#

I was thinking of becoming a donor...

wow, well, best we scrap academic and political disagreements then, eh? Wouldn't want to lost those "I was gonna kick in five bucks"-guys.

how convenient that you were a full-on supporter of a "libertarian pillar" but never felt the need to put your money where your mouth is.

Good thing Dr. Pilon gave you a free pass, no?

|1.29.08 @ 2:48PM|#

John,

You might be able to talk me into supporting that position, but here's my problem; the law as Bush would write it does not distinguish between the "scanning" you're talking about and actually "listening in" on people. It would give the unreviewable power to do both to the executive branch.

|1.29.08 @ 2:49PM|#

Lindsay Graham had one "No Vote", but I don't know if he abstained or was absent. Spector had a "Nay" on another cloture vote.

The modern day Republican party stupifies me. A pox on both their houses, sure, but I may not vote for a Republican for the next twenty years or so, if they keep this shit up.

Every day is opposite day when Republicans speak...they warn everyone about "big brother: and the "Democrats love of big government" and they are ready and willing to authorize any and every abuse that Dear Leader proposes...unbeliveable.

|1.29.08 @ 2:52PM|#

Obama issued a very strong statement against retro-active immunity...What say you McCain...Romney...Gui911ani?

|1.29.08 @ 2:53PM|#

Cripes, Hillary and Edwards have come out strongly against retroactive immunity!

|1.29.08 @ 2:54PM|#

|1.29.08 @ 2:55PM|#

I'm not sure what's more annoying: The Opposite Day that comes out of both political parties' mouthpieces of the chicken-littleisms that come from some libertarians:

"OH NOES A CATO-GUY SAID SOMETHING GOOD ABOUT A GOVERNMENT PROGRAM WHATZ WRONG WITH TEHM LOLZ!!11!"

"Does anyone here retain any illusions that the Cato Institute is for liberty in any way, shape or form?"

Well, yeah. Let's not froth at the mouth.

Julian Sanchez|1.29.08 @ 2:56PM|#

Joe and others:
The change in the interpretation of the 4th amendement was a belated realization that technology had rendered irrelevant the traditional test for when a "Search" occurs. There used to be a property bright line: If the police come into your house (uninvited), that's a search. If they see or hear you doing something from the street, that's not a search. Katz marked the shift from a property test to the current "reasonable expectation" test.

|1.29.08 @ 2:57PM|#

Now if the CEOs of the telecom companies were brown people...then we might have a chance...

should read "OR the chicken..." etc. etc.

|1.29.08 @ 2:58PM|#

Sorry to harp...but are these Republicans who are voting for retro-active immunity the same ones who say that illegal aliens can't have retro-active amnesty because this is a "Nation of Laws" and "They broke the law"...I'm gonna have to start self-medicating...

This is the best thing I've ever seen you comment. Of course, their defense of this will be to say that both are in the name of "security" (that is, kicking out the illegals and allowing the gov't to use private companies to spy on us), but you're absolutely right about the "nation of laws" rhetoric being a bunch of crap.

"You might be able to talk me into supporting that position, but here's my problem; the law as Bush would write it does not distinguish between the "scanning" you're talking about and actually "listening in" on people. It would give the unreviewable power to do both to the executive branch"

The answer to those concerns are

1. You share the results with a bipartisan committee in Congress so that both sides know exactly what is going on and that it is not being used for political purposes.

2. You destroy the records after a certain period of time and make doing so subject to congressional and IG review

3. You only use it for foreign Intel and terror and you don't make any of the info transferable to ordinary criminal investigation, absent direct threat to life or limb. If I over hear someone planning to kill their wife, I think it I ought to have a duty to turn it over to the police. If I over hear someone planning a bank robbery, too bad.

At some point, the scanning has to equal listening because someone has to look at the communications to determine if they really do give probable cause to give a FISA warrant or not. Bush has been incredibly stupid on this. He should have involved Congress more in the direct oversight. All of these programs ought to be subject to closed door Congressional oversight and should only be used for foreign Intel and counter terrorism investigation. Of course good luck selling the FBI and Justice department on that.

|1.29.08 @ 3:05PM|#

"This is the best thing I've ever seen you comment"

Well even the millenial clock is right every once in a thousand years I suppose:)...but seriously this issue is I think an exceptional example of how our democracy is broken in the United States, there is almost no constituency for retroactive immunity and yet nearly every Republican and a few Democrats are supporting it.

|1.29.08 @ 3:06PM|#

John,

We traditionally use the courts to check the executive in this area, not Congress. Why not master warrants and judicial oversight?

|1.29.08 @ 3:07PM|#

Thank you, Julian.

|1.29.08 @ 3:15PM|#

"We traditionally use the courts to check the executive in this area, not Congress. Why not master warrants and judicial oversight?"

I think you need both. The issue is how do you collect the data that gets you to the warrant? That is before you ever go before a judge. I have no problem with letting NSA run their secret squirrel algorithms and try to collect data to determine who should be a target of a FISA warrant provided that post hock everything they do is checked by the IG and a bipartisan arm of Congress. The reason why we have FISA and the Church Commission and the like is that Presidents from Kennedy to Johnson to Nixon were using intelligence agencies to spy on their political enemies. The danger is not that the NSA is going to listen to yours or my communication. The danger is that some political appointee is going to decide to run the algorithm to see if he can read Obama's or on the other side John McCain's e-mail to dig up dirt on him or whatever nefarious purpose. The only way to stop that is by real Congressional oversight.

kinnath|1.29.08 @ 3:21PM|#

John, on any given day you're about a million times more likely to be killed by a drunken driver than by a terrorist. But, hey, don't let statistics get in the way of dismantling the civil liberties of the greatest nation on earth.

|1.29.08 @ 3:24PM|#

"John, on any given day you're about a million times more likely to be killed by a drunken driver than by a terrorist. But, hey, don't let statistics get in the way of dismantling the civil liberties of the greatest nation on earth."

On August 1st 1914, on a given day an average European's chances of dying a violent death was pretty damn low. The past is not always the perfect predictor of the future. If you are going to make an argument, at least make a thoughtful one rather than rolling out that tired piece of sophistry.

|1.29.08 @ 3:28PM|#

Also, the chances of having my freedoms curtailed by the government in the form of telling what I can and cannot eat, how fast I can drive, where or if I can smoke, and what kinds of economic transactions I can engage in are about a million times more likely to happen than anyone ever listening to my phone calls thinking I am a terrorist. Not that the second is a good thing, but in terms of threats to my civil liberties the ones at the top of the list are a hell of a lot more likely to effect me.

kinnath|1.29.08 @ 3:31PM|#

On August 1st 1914, on a given day an average European's chances of dying a violent death was pretty damn low. The past is not always the perfect predictor of the future. If you are going to make an argument, at least make a thoughtful one rather than rolling out that tired piece of sophistry.

Way to miss the point John. The complaint is that the US is on a path to institute wide-scale surveillance of the population due to fears of catestrophic, but highly-improbable crimes.

The towers coming down was a bone-chilling catastrophy, but that does not mean that extraodinary means are required to prevent the next terrorist action.

This adminstration, and everyone supporting it, is using fear as a justification for destroying the constitional basis of our freedoms. Wide-scale sniffing of public communications is a disaster for our individual rights.

kinnath|1.29.08 @ 3:36PM|#

. . . are about a million times more likely to happen than anyone ever listening to my phone calls thinking I am a terrorist.

True story. Some co-workers were discussing business regarding an up coming program. In particular, the discussion surrounded the Bill of Material (BOM). This discussion resulted in an unpleasant interview with airport security.

These kinds of problems are already happening today and will only be amplified by a wide-scale surveillance program.

There have been threads here before when the basic engineering problems have been discussed. Even a system that is 99.9% accurately will generate a flood of false matches that overwhelm any positive matches. Even if you ignore the threats to civil liberties, the system is destined for failure on purely pratical terms.

|1.29.08 @ 3:38PM|#

"The towers coming down was a bone-chilling catastrophy, but that does not mean that extraodinary means are required to prevent the next terrorist action."

Way to miss the point. The point is you have no idea what the odds of me or anyone being killed by a terrorist are because you don't have the information. Based on the past, the chances are very low. But that says nothing about the threat of the future. What that that threat is of course is the $64 question. Whatever the answer to that question is, saying "you are more likely to be killed by a drunk than a terrorist" is just question begging bullshit. Maybe you are more likely maybe you are not, depends what the future threat is.

|1.29.08 @ 3:40PM|#

"Even a system that is 99.9% accurately will generate a flood of false matches that overwhelm any positive matches."

I used to think that to. The engineering problems are huge and frankly I didn't see how they can do it. But I will say this, I wouldn't say it was impossible.

Peter K.|1.29.08 @ 3:41PM|#

"The past is not always the perfect predictor of the future. If you are going to make an argument, at least make a thoughtful one rather than rolling out that tired piece of sophistry."

Yeah but history tends to repeat itself and there are plenty of examples in the past of politicians and rulers scaring people into giving away their civil liberities.

I don't usually read the Wall Street Journal but happened to pick up the one containing this unusual op-ed and did find it odd that it was written by someone from Cato. Is this guy really a libertarian? Or just a "business libertarian", i.e. believes corporations ought to be free and liberated from government regulation no matter the externalities?

kinnath|1.29.08 @ 3:42PM|#

The point is you have no idea what the odds of me or anyone being killed by a terrorist are because you don't have the information. Based on the past, the chances are very low. But that says nothing about the threat of the future.

So your argument is that we should roll over and let the government examine our underwear whenever it wants to because the future is so scary even thought past history indicates otherwise.

If you ignore the past, then you have no basis whatsoever for estimating future risk. You only have your fears.

I don't share your fears John. Go take a Prozac and leave my email alone.

|1.29.08 @ 3:44PM|#

"Yeah but history tends to repeat itself and there are plenty of examples in the past of politicians and rulers scaring people into giving away their civil liberities."

Really? People say that but they never give any examples. All of the examples I can think of are of people losing their civil liberties can at the end of a gun. I am hard pressed to think of any examples in history where a free society turned into a totalitarian one voluntarily and without the use of violence.

kinnath|1.29.08 @ 3:44PM|#

But I will say this, I wouldn't say it was impossible.

As an engineer in a business that builds saftey critical system with more that 20 years of practical experience I can assure you the problem is fucking impossible. Apollo was easy compared to this.

|1.29.08 @ 3:46PM|#

"So your argument is that we should roll over and let the government examine our underwear whenever it wants to because the future is so scary even thought past history indicates otherwise."

No dumbass. I didn't make an argument one way or another. I pointed out that your argument was bullshit. If you want to talk in concrete terms why the future threat is low, then do so. But don't waste your time begging the question about what that threat is by pointing to the past and giving no reason why that is indicative of the future.

Warmongering Lunatic|1.29.08 @ 3:54PM|#

The fundamental problem with Tim Lee's response is the assumption that since oversight of the executive is necessary, Congress has the power to grant the judiciary oversight powers.

It is a separation of powers violation to make a power of the executive dependent on the permission of another branch. Congress cannot, say, pass a law requiring that the President get a ruling from the Supreme Court declaring a law is unconstitutional before he may veto a bill, even if it were generally agreed such a check is necessary. Similarly, if the executive has the power to engage in surveillance of foreign intelligence without a warrant under the Constitution itself, then it is quite hard to see how Congress has the power to require the executive to get a warrant to execute that power.

Accordingly, the place to make the argument is on the Fourth Amendment alone, without reference to any purported act of Congress.

This, of course, leaves us with the current problem that, under Olmstead v. United States (1928), wiretapping without a warrant is not a violation of the Fourth Amendment. This has been reversed by later courts in criminal matters and in matters of domestic intelligence surveillance, but the latter decision was clear it did not apply in matters of foreign intelligence surveillance. So Olmstead arguably controls on matters of foreign intelligence surveillance, permitting warrantless surveillance.

But the place to fix this is by getting a change in the Fourth Amendment jurisprudence, or in the jurisprudence of Article II powers, or maybe a constitutional amendment, not by passing laws that are outside the scope of Congressional power.

kinnath|1.29.08 @ 3:55PM|#

I pointed out that your argument was bullshit. If you want to talk in concrete terms why the future threat is low, then do so. But don't waste your time begging the question about what that threat is by pointing to the past and giving no reason why that is indicative of the future.

My last post John.

9/11 eleven involved a large conspiracy ending in 19 people taking over 4 jets. They managed to drop two buildings and kill 3000 or so people. I am not making light of this fact.

This conspiracy was large enough to be detected by existing law enforcement practices. It was not detected due to problems with the people in the system not due to lack of information.

To do more damage will require larger conspiracies which will be easier to detect. Smaller conspiracies will be hard pressed to equal the damage of 9/11 unless you want to examine doomsday scenarios involving disgruntled bio-medical grad students unleashing killer viruses.

Until there is some credible indication that an isolated nut can kill thousands of people at the same time, the wide-scale surveillance of the population is not justified.

|1.29.08 @ 4:02PM|#

"""This is really about bulk collection without specific targets."""

Right. Isn't that what the 4th amendment suppose to prevent, the bulk collection of anything without any specific target by the federal government?

"""3. You only use it for foreign Intel and terror....."""

Remember back when the P.A.T.R.I.O.T. act was being passed? The govenment claimed it would be used against the terrorist only. A year later the DOJ is running siminars on how to apply that act to regular law enforcement.

Remeber the Total Information Awareness program that Congress refused to fund. It went to another agency and is alive and well, and expanding.

For some reason I doubt you are so disconnected, or so stupid, that you would really believe the government can be taken at its word in this issue. They have NO intentions of using the surveilence technology for terror only. The logic could be as simple as why spend billions hunting a couple of dozen people when this technology has such great potential in prevent and solving all crime.

"""""and you don't make any of the info transferable to ordinary criminal investigation, absent direct threat to life or limb."""

Like who's smoking, or doing drugs? We already see that drugs can result in the lost life of LEOs, and can cause death. What about drunk driving. Who gets to decide what is considered loss of life, and how easy would it be to ammend it for the cause of death de jour?

Remember John, when LEO violates their own rules, little happens.

|1.29.08 @ 4:05PM|#

"""I am hard pressed to think of any examples in history where a free society turned into a totalitarian one voluntarily and without the use of violence.""""

Wasn't Hiler elected to office?

Julian Sanchez|1.29.08 @ 4:05PM|#

"It is a separation of powers violation to make a power of the executive dependent on the permission of another branch."

Do I actually need to run through all the cases in which a power of the executive explicitly depends upon the permission of another branch?

Peter K.|1.29.08 @ 4:07PM|#

|1.29.08 @ 4:10PM|#

""""Also, the chances of having my freedoms curtailed by the government in the form of telling what I can and cannot eat, how fast I can drive, where or if I can smoke, and what kinds of economic transactions I can engage in are about a million times more likely to happen than anyone ever listening to my phone calls thinking I am a terrorist.""""

I do agree. Yet I can't think of any better way for the government to enforce those bans than by having total access to all of you electonic transactions.

Peter K.|1.29.08 @ 4:11PM|#

9/11 eleven involved a large conspiracy ending in 19 people taking over 4 jets. They managed to drop two buildings and kill 3000 or so people. I am not making light of this fact.

This conspiracy was large enough to be detected by existing law enforcement practices. It was not detected due to problems with the people in the system not due to lack of information.

Plus hit the Pentagon and would have hit the Capitol building had it not been for some brave citizenry. Seems to me the main problem was that the FBI and CIA wouldn't share information. Plus the FBI lady in Minnesota wasn't listened to.

thoreau|1.29.08 @ 4:49PM|#

I offer some fashion advice for Pilon.

http://highclearing.com/index.php/archives/2008/01/29/7787

|1.29.08 @ 5:01PM|#

I estimate no fewer than 1 in 3 comments to this post are violations of R.C.'z Law.

Just sayin'.

thoreau|1.29.08 @ 5:19PM|#

Refresh my memory. Is RC's Law that the less you know about something the easier you think it is? I remember you posted some good ones a while ago, but I can't remember the specifics.

Steve Real|1.29.08 @ 6:39PM|#

The free for all is over.

It's time for the telecom's to account.

I want my Fisa bill to have
a real Judge involved.

Let's face the facts here
the telecoms broke the law.
They need to pay the piper.

Where are all my law and order people?

Everybody knows an informed citizenry
will outperform any spy network out there.

The FBI (according to Senator Graham from Florida)
had an informent living with one
of the 911 highjackers and the fella still couldn't
figure out what was going down.

Stupidity kills.

It's time for the telecoms to pay the piper.

Warmongering Lunatic|1.29.08 @ 7:13PM|#

No, Mr. Sanchez.

If the Constitution made the power dependent on permission of another branch, there's no constitutional separation of powers issue. If Congress delegated the authority to the executive branch, the power is clearly still Congress's, and so Congress's to regulate. If the method of Congressional interference was to make funding dependent on adherence to the Congressionally-established regime, we again are clearly within the powers of Congress to dictate the terms of funding. And if we are dealing with a regulation the executive never challenged in court, then we are dealing with a case of voluntary compliance by the executive to Congress's desires, and so have no precedent on whether Congress can actually bind the executive to such conduct.

So, you need to make a list of all cases where Congress, by statute, made a power of the federal Executive or Judicial branches newly dependent on the permission of another branch, where the mechanism for enforcement was not merely the power of the purse, and such action survived court review. Then I'll concede that, under current constitutional law, Congress making foreign intelligence surveillance dependent on prior judicial permission is permissible.

Julian Sanchez|1.29.08 @ 7:43PM|#

OK, for starters, how about Little v. Barreme (1804), in which the Court found that a statute authorizing seizure of ships bound *to* but not *from* French ports bound the executive in his capacity as CiC of the Navy, rendering illegal an order to capture outbound vessels. I think there's a fairly clear parallel there, insofar as the president's Article II CiC powers give him broad discretion but, as the ruling there makes clear, subject to broad parameters Congress may establish under its own overlapping powers.

Most famously, of course, we have Youngstown. The best known part is the tripartite analysis from Jackson's concurrence, but if you want something from the majority opinion, here's Hugo Black on the rationale for voiding the president's seizure of steel mills--which, here too, had been justified by reference to the executive's CiC powers:

"It is said that other Presidents, without congressional authority, have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution [p589] 'in the Government of the United States, or any Department or Officer thereof.'"

Not "all the cases" by any stretch -- my desire to satisfy your curiosity is unlimited, but my time is not -- however that should be a decent start.

David Friedman|1.30.08 @ 3:46AM|#

(Summary of Roger Pilon's position)

"On the other hand, because "intelligence is essential" to national security, "Commander in Chief of the Army and Navy of the United States" naturally entails the power to authorize surveillance of Americans' communications with (at least) persons abroad, subject to neither limitation nor, indeed, even scrutiny by the other branches."

I'm puzzled by this argument. The Constitution says that:

"The Congress shall have Power To make Rules for the Government and Regulation of the land and naval Forces;"

So if surveillance is part of the activity of the army and navy, surely Congress is entitled to make rules regulating it--for instance FISA.

Julian Sanchez|1.30.08 @ 10:05AM|#

David-
You are not alone in your puzzlement. Frankly, I think Roger has just spent so much of his career fighting the righteous fight against the arrogation of power to the legislature that he finds it difficult to shift gears and recognize places where legislative power is a vital, legitimate check.

Warmongering Lunatic|1.30.08 @ 6:52PM|#

Mr. Sanchez, in both cases you cite, the court's opinion never establishes that the Executive could have taken the disputed action had Congress remained entirely silent on the issue. Which means neither is on point. If the Executive cannot take an action when Congress is silent, then there is no inherent Article II power to take that action, and so no restriction on executive power is enacted if Congress passes a law regulating under what conditions the action can be taken.

I'm not actually taking a position on whether the power to engage in surveillance vested in the President; my first post made a point of qualifying that with an if. If the President has been granted by the Constitution the power to engage in foreign intelligence surveillance without legislative or judicial authorization, then we have a question of Congress's lawmaking powers when Congress starts telling the President how and when he can use it.

Still, as pointed out, Congress has extensive powers to regulate the land and naval forces. But granting that rules about intelligence surveillance fall within that Congressional power, we still have a separation of powers issue when Congress makes the judiciary part of the process of carrying out an executive power. If Congress had established a rule requiring administrative law judges to authorize surveillance, that would be one thing. Having members of another branch of government - the judiciary - be actively and regularly involved in authorizing the use of an executive power is another.

So, that's my objection to the Time Lee quote. Just because it would be nice to have judges review surveillance requests doesn't mean Congress has the power to create a process where the use of executive power is dependent on persons who are not members of the executive branch.

|1.31.08 @ 4:27PM|#

"""If the President has been granted by the Constitution the power to engage in foreign intelligence surveillance without legislative or judicial authorization, then we have a question of Congress's lawmaking powers when Congress starts telling the President how and when he can use it.""""

The Constitution grants the President NO such powers. So will you concede that with respects to this thread, POTUS must follow the law.

Warmongering Lunatic|1.31.08 @ 7:35PM|#

TrickyVic, unless you can show me case law to that effect, your statement is one of what the law should be, not what it is. Got a cite? ("Plain meaning of the words" is a statement of ought, not is - unless you can show me the bits in the Constitution where growing wheat on one's own land constitutes "interstate commerce".)

But even if you do have such a cite, we still have the question as to whether Congress actually has the power to invest the judicial branch with the authority to issue noncriminal surveillance warrants. If not, the FISA interaction would require the executive to get warrants the court does not have the power to issue.

So we're back to my original statement again - "[t]he fundamental problem with Tim Lee's response is the assumption that since oversight of the executive is necessary, Congress has the power to grant the judiciary oversight powers."

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