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.)

Comments

[SPD]

If I read one more flak for Bush defending illegal wiretaps by invoking the dead from 9/11, as if to provoke a Pavlovian response from the masses, I'm going to mail them a swift kick in the groin.

"Those who sacrifice liberty for security deserve neither." Happy 300th Birthday, Mr. Franklin.

[fyodor]

Once again (and I should credit my girlfriend for making this point which I'm now repeating), it's not that wiretapping or the taking of evidence is always bad, it's that there are protocols for doing it. Unless they can show that following these protocols is what led to not seizing Moussaoui's computer, it's an irrelevant argument. Plus, if FISA is too restrictive, then argue that and for legally overturning it. That FISA may have drawbacks is not a reason for ignoring it as long as it's the law!!

Also, pointing to Moussaoui, it seems to me, is a little like pointing out that a smoking ban was followed by a reduction in heart attacks in Pueblo, Colorado. It seems like cherry-picked information. Even if there had been no oversight on safeguarding civil liberties before 9/11, that does not prove that Moussaoui's computer would have been properly raided and the information properly handled.

And also as well (ha-ha), the eternal question remains, where this stop? One does not have to see all slopes as slippery to ask well if you think civil liberties safeguards prevented the prevention of 9/11, what are you saying?

[fyodor]

Er, where does this stop?

[The wed RINO]

the Bush administration's various justifications for the NSA surveillance...

I'm starting to read the various justifications for everything as the administration figuring out how to argue in a blogger, talk radio, and cable news nation. The trick isn't to be accurate and consistent. The trick is to wear out opposing views through a relentless barrage of justifications. Until anyone who isn't hard core, just says, "ahhh, fuckit, and switches the channel.

[Ken Shultz]

Fyodor's right, it's about the rule of law.

...and incompetence. There was no reason, that I can see, for the Bush Administration not to ask to have the law changed, if necessary. So why didn't they?

[R C Dean]

C'mon, does anyone arguing that "surveillance of everyone at all times is never illegal" or that "limitless surveillance by the executive branch can ever be a crime."

I mean, geez, straw man alert, anyone? Its really hard to get into a legitimate, principled discussion about what surveillance is actually subject to the Fourth Amendment, what surveillance is inherent to warfighting, and how to police the dividing line, when there is so much intellectual dishonesty on all sides.

[Scott McClellan]

There was no reason, that I can see, for the Bush Administration not to ask to have the law changed, if necessary.

We are the law!

[Morat20]

Actually, I suspect their shifting justifications have a lot to do with the fact that they can't quite claim their REAL justification.

It would not only be bad politics to admit "We did it because Dick Cheney says we can" but to answer the "But why didn't you use FISA when you could, and just pull the 'Damn the Courts' routine when necessary" with "Because we were proving a point! We just never expected Congress or the American public to ever, you know, find out we were making a point. It was a point to ourselves!".

Should we ever find internal memos or smoking guns or whatnot, I think we'll find this was all pretty simple -- Bush isn't exactly a Constitutional scholar, and Dick and Co firmly believe the President can damn well do what he wants, and all that "checks and balances" stuff should be ignored whenever possible.

[Ethan]

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.

I don't understand this sort of reasoning. "If we had power X we could have prevented bad thing Y. Therefore we should have power X." There are a lot of powers we could give the government that would probably reduce untimely deaths in this country by quite a bit--by a lot more than 3000. Forcing people to use public transportation, for instance, would be the equivalent of preventing a couple 9/11s every month. We could have a 9/11 every quarter and still be up on the deal.

[George "Dubya" Bush]

Because some airlines didn't care to secure their cockpits from being overtaken by passengers, I get to wiretap anyone I want. Nyahh Nyahh!

[Johnny Clarke]

Hey, I'm not trying to flame anybody, I am honestly curious...could someone who truly believes we're "At war!!!" explain, or point me towards an explanation, of precisely what it will take for the war to "end"? Our country can't survive being "at war" forever.

Besides, as I understand it, Congress gave the President the authority to smack down the folks responsible for 9/11, not go to war against whoever he chooses. If we catch Osama is the war over? Do we have to kill every Al Qaeda member in the world?

[citizengnat]

RC Dean

Do you see any evidence that the administration believes in such a line? If so, where exactly do they think the surveillance powers of the executive end? Yes, we could all have a nice discussion on how much deference to give the executive in wartime, what constitutes "wartime", when the 4th amendment means what it says and when it doesn't. The reason most of us are not engaging in such a discussion is that the Bush administration doesn't seem to think these are even valid questions. Explain why what Gillespie wrote is a strawman or join the conversation.

[Ken Shultz]

Its really hard to get into a legitimate, principled discussion about what surveillance is actually subject to the Fourth Amendment, what surveillance is inherent to warfighting, and how to police the dividing line, when there is so much intellectual dishonesty on all sides.

Honesty starts at home.

...Did the President break the law?

[Scott]

The War on Terror was never designed to end, it will go on forever, it was merely a ruse to achieve the real goals of unlimited executive power and war profiteering. Just like the War on Drugs, it is a war with no defined enemy other than the specter of a lengthy struggle against an intangible concept. The Bush administration knows that as long as they can invoke a "war", it is much easier to get away with ignoring the 4th Amendment and breaking the law. Capturing Osama is the last thing that Bush wants to do, once Osama is dead or captured, it will remove any remaining justification for the continuing fear campaign used by Bush and Co. to dismantle what remains of our civil liberties. Fascism is on the march.

[Bonar Law]

If FISA warrants were such an obstacle to fighting terrorism, President Bush could have included language in the PATRIOT Act watering down FISA. After all, wasn't PATRIOT a grab-bag bill filled with items on the executive-branch wish-list?

Instead, the PATRIOT law watered down the requirements for *obtaining* and *executing* warrants; it didn't mention that warrants could be dispensed with altogether.

If Bush inadverdently left the warrantless-search part out of the PATRIOT Act, despite its being essential for national security, then why? Did he just forget about it? Or did he worry Congress wouldn't swallow it (consider what else they swallowed!).

In any event, none of this speculation provides enough reason for ignoring statutes duly enacted by Congress.

[KipEsquire]

And let's not forget that Bush lied on more than one occasion by insisting that they were in fact always getting warrants.

[Trooper Jones]

I'm on Ken's flank but oriented on a different objective.

FISA and the AUMF are the law. The Constitution says the President "shall take care that the laws be faithfully executed". Those are facts.

So, my question is, has the President taken that care? I'm leaning toward an answer of "no", especially considering the weakness of the Chief Executive's arguments.

[R C Dean]

Did the President break the law?

That's what the discussion is supposed to be about. Its entirely possible that he did.

None of us know, because none of us really know how the eavesdropping program was run. It is entirely possible that it has operated in a way that is legal. Its also quite possible, and perhaps more likely, that it has been operated in a way that breaks the law.

Its hard enough to get a description of exactly what the law allows and doesn't allow in this area. I don't think there is anything approaching a consensus on that. The fog of bad faith and cheap partisan point-scoring poisons the debate, IMO.

Assuming you have a position on the issue of what is legal in this area of which you are sufficiently confident that you would throw people in jail, you have only begun to unravel the question "Did the President break the law."

A not-insignificant factual basis still needs to be established, after all. And here you run into a brick wall.

[e]

If FISA warrants were such an obstacle to fighting terrorism, President Bush could have included language in the PATRIOT Act watering down FISA. After all, wasn't PATRIOT a grab-bag bill filled with items on the executive-branch wish-list?

The Patriot Act was merely a courtesy, Bonar. Who needs congressional legislation when you already have unlimited "inherent authority" to wage the WOT as you see fit? What does it matter if Congress renews all provisions of the Patriot Act this year or not?

[Jeff]

Not to mention that any Constitutional argument in Bush's favor has to also neglect the many and varied provisions under which Congress is granted the authority to oversee the military in various ways. These dickheads honestly believe the President (a Republican President, anyway) can do anything he chooses, so long as he remembers to wear his Commander in Chief hat while he does it. The fact that even a cursory review of a 6th grade civics textbook would convince you otherwise speaks volumes about the level at which they are operating. The people arguing in the administration's favor on this issue should be ashamed of themselves. If their arguments prevail, we are all going to regret it. Even the apologists, under the reign of Queen Hillary, or someone worse.

[Scott]

The real fun begins when the inevitable changing of the guard results in a Democrat President. The Republicans and their mouthpieces like Rush O'Hannity will have a meltdown if Commander in Chief Hillary decides that her war powers allows the suspension of the 2nd Amendment without any debate or congressional review.

[SPD]

...people into words want to hear your words. Some guys like to record your words and sell them back to you if they can, listen in on the telephone, write down what words you say. A guy who used to be in Washington knew that his phone was tapped, used to answer, "Fuck Hoover, yes, go ahead...." --George Carlin, from "Filthy Words"

"Fuck Gonzales" doesn't roll off the tongue quite so easily, but I'd be willing to try it.

[SPD]

...people into words want to hear your words. Some guys like to record your words and sell them back to you if they can, listen in on the telephone, write down what words you say. A guy who used to be in Washington knew that his phone was tapped, used to answer, "Fuck Hoover, yes, go ahead...." --George Carlin, from "Filthy Words"

"Fuck Gonzales" doesn't roll off the tongue quite so easily, but I'd be willing to try it.

[henry]

The bottom line with these assholes is that, in their view, for the foreseeable future (which will surely morph into "forever") the only check on the power of the president is the will (or whim) of the president--period. Everything else can be dispensed with as window dressing--Congress, courts, laws, the Constitution; all of it is quaint historical baggage.

These fuckers want "democratic" strongman rule, aka fascism with elections. So long as we have elections, where the voters can choose their flavor of strongmen, the neo-con rabble will always proclaim everything is just hunky-dorey, and ask why anybody opposing such things hates America or wants to aid the terrorists.

Now if they ever start talking about "delaying" an election due to a "natonal emergency" then you'll know they have finally become confident enough to ratchet things up a notch.

[Some Guy]

R.C. Dean -- Haven't we "run into a brick wall" regarding the specifics of the eavesdropping program because the Bush Administration won't provide those specifics?

[Johnny Clarke]

Hmm, so I'm left to conclude that either nobody who reads this thread believes we're "at war", or they believe it but do not know what goals must be accomplished to end the "war", or, finally, they know what must be accomplished but refuse to tell me because of, oh, reasons of "national security" I suppose.

That about wraps it up for the whole "we're at war" bit.

[Shem]

"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."

Wha? What does he think the FISA courts are issuing then?

[joe]

This is just like his torture memo.

Gonzales is a shitty lawyer, and writes opinions a pre-law freshman can shred, in order to tell his boss what he wants to hear.

If Bush gets impeached and prosecuted, he should bring Alberto before the Bar, because his entire career in the federal government has been an exercise in malpractice.

[Ken Shultz]

If Bush gets impeached and prosecuted, he should bring Alberto before the Bar, because his entire career in the federal government has been an exercise in malpractice.

It's true!

So many people are trying to twist smart reasons for the President to have followed bad legal advice. ...Every screwup I ever met had really good reasons for all the stupid things he'd done.

...Thank God Gonzales isnt on the Supreme Court!

[citizengnat]

"If the president does it, it can't be illegal" -Richard Nixon

I'm not a lawyer, much less a constitutional scholar, but this doesn't seem all that complicated to me. Bush has admitted publicly to intercepting the communications of American citizens within the territory of the United States. He has assured us that this power was used only on communications wherein one of the parties was outside the United States, though we have no real way of knowing that.

The president claims this behavior is legal through the various defenses outlined in Gillespie's post. Basically this boils down to a very simple question: how much authority does the president have to ignore the constitution in wartime, and does the president also have the power to decide what constitutes "wartime". If we follow the logic of the administration to its conclusion it seems clear that they see the president as an elected dictator whenever they decide "homeland security" is on the line. I think what bush did was illegal, just as I think the continued holding of Padilla is illegal. If anyone disagrees with this, please tell me: just what*isn't* the president allowed to do during "wartime"? It has been established that the fourth and fifth amendments are subject to override by the president. Is any part of the constitution not optional? I am being neither partisan nor disingenuous; I honestly want an answer to this question.