While FISA Slept…

Nationally syndicated columnist Paul Greenberg inveighs against the "anti-federalists" who argue that limitless surveillance by the executive branch can ever be a crime:

Lest we forget, in the legal climate that prevailed before this country was shocked awake that fateful September 11, the Justice Department had decided there was insufficient reason to inspect the laptop of one Zacarias Moussaoui, the alleged 20th hijacker in the September 11 attacks. His record of associating with terrorists was not considered sufficient "probable cause" to obtain a search warrant under FISA. So his computer files, which might have revealed the plot, remained unexamined.

And one of the most devastating attacks on American soil in this country's history proceeded as planned. The civil liberties of those thousands of Americans who would be killed September 11 were protected, all right—protected to death.

It's not particularly clear that had the NSA (or whomever) been surveilling every bathroom break the guy took that the feds would have done anything differently anyway. After all, the Treasury Department's Financial Crimes Enforcement Network, charged with tracking down terrorist-related financing, is choking on mandated bank information. The bigger the haystack–whether of phone calls or financial statements–the tougher it is to sort through. And in any case, it's worth noting that Moussaoui was being held by the feds when they decided not to search his computer–and that from most of the accounts I've read, the DC FBI crew didn't bother with getting a rubber-stamped FISA warrant to search the computer mostly because of a pissing match with relatively lowly Minnesota field operatives. It had little or nothing to do with the legal framework or the evidence marshalled by the Minnesota agents who had collared Moussaoui.

But never mind, because surveillance of everyone at all times is never illegal, argues Greenberg elswhere: "The very act establishing these FISA courts recognizes that the executive branch has the inherent authority to conduct electronic surveillance of enemy agents in wartime without a court order." Greenberg's whole bit is here.

As Jacob Sullum has pointed out, the Bush administration's various justifications for the NSA surveillance (it's always legal because of the Constitution! it's legal because of the authorization of force! it's legal because we "briefed" Congress, etc.) suggest the administration is not quite comfortable with its own rationale. And some of us might quibble about whether we are "in wartime"–the congressional authorization of force is clearly not the same thing as a hard-core declaration of war (since World War II, both the Congress and the president have their reasons for never wanting to actually declare war). And we can at least note that FISA legislation has morphed over the years, always in a way that has expanded its purview and lessened its accountability, well before 9/11. (Read Reason's interview with Fox News legal expert Andrew Napolitano on that score.)