I'm at the Omni Shoreham hotel here in D.C. for the 2006 Conservative Political Action Conference, where Georgetown Law prof Viet Dinh, primary architect of the USA PATRIOT Act, just faced off against former congressman Bob Barr on civil liberties.
There was not, alas, much new under the sun here, except perhaps the revelation that even a top conservative legal theorist doesn't have a great deal more to offer than a regurgitation of the same thin talking points the administration has already offered in defense of the NSA wiretap program.
Dinh graciously offered some lip service to the strain of the conservative tradition "imbued with a healthy skepticism of government," before suggesting that such skepticism had to yield while the U.S remained under threat from "people whose venality and lethality cannot be doubted." And though Dinh reminded the audience that he hadn't been briefed on the details of NSA signals intelligence practices, he asserted that we know "two critical facts" about the agency's warrantless surveillance: that it has applied only to at least partially international communications and that it has been "narrowly targeted" at suspected al Qaeda associates. I'll give the benefit of the doubt on the first point, but the second is badly at odds with an enormous amount of what's been reported by NSA insiders. For example, from The Washington Post this weekend:
Surveillance takes place in several stages, officials said, the earliest by machine. Computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, e-mails and telephone calls into and out of the United States before selecting the ones for scrutiny by human eyes and ears.
Successive stages of filtering grow more intrusive as artificial intelligence systems rank voice and data traffic in order of likeliest interest to human analysts. But intelligence officers, who test the computer judgments by listening initially to brief fragments of conversation, "wash out" most of the leads within days or weeks.
One thing that's suggestive is the insistence of administration spokespersons (such as Alberto Gonzales) on very carefully parsing their comments to refer only to one particular NSA program. So claims of narrow targeting and disavowals of any kind of broader data mining might well be technically accurate—the administration appears quite fond of making "technically accurate" claims of this sort—with regards to this program, but not apply to a dozen other related ones.
Dinh moved on to consider whether the kind of wiretap program he'd characterized constituted a "reasonable" search under the Fourth Amendment, and rattled off a list of other circumstances in which the Supreme Court has permitted searches without warrants: border searches, urine testing of student athletes, and drunk driving checkpoints, among others. If those pass muster, he suggested, then wiretaps to catch terrorists must "by definition" be reasonable. Without getting into too great detail, though, while the harms each of the searches he mentioned are less than those terrorists hope to bring about, the intrusion on privacy in each case is also obviously far lower than is involved in systematic monitoring of communications, which also carries with it a potiential chilling effect on journalists and academics, say, working with sources in the Middle East. And in the case of the drug testing as a condition of participation in student athletics and, to a lesser extent, border searches, the intrusion is at least quasi-voluntary, occuring at a time and place known in advance to the subject. So looking only at the other side of the ledger—the harm to be avoided—isn't a particularly useful way of determining what kinds of searches must be reasonable.
On the question of the president's putative "inherent authority" not only to conduct warrantless wiretaps but to ignore any congressional attempts to limit such conduct, we got much less citation of precedent—maybe because Dinh's aware of some of the cases cited in a letter to Congress from an all-star bipartisan team of distinguished legal scholars, which notes that "Every time the Supreme Court has confronted a statute limiting the Commander-in-Chief's authority, it has upheld the statute." This seems like a point civil libertarians need to really hammer home—many people seem to think that if the president has any authority to conduct this kind of surveillance, he must have unlimited authority, authority immune from constraint. And history makes clear that's just not the nature of presidential powers in this area, which are shared with Congress.
Barr, alas, restricted his response to glittering generalites about the importance of the Bill of Rights, though he did make what used to be a traditionally conservative point about not getting complacent about constraining government power just because you happen to trust the good intentions of those who currently wield it. In fact, as I recall, the thesis of Thomas Sowell's A Conflict of Visions was that the refusal to be guided in the first instance by "good intentions" was precisely what distinguished conservatives from technocratic liberals. I wonder how much of Sowell's book—largely an anatomy of liberal psychology as he saw it—would now apply to mainstream conservatives?
Jesse Walker's 2003 interview with Bob Barr is here.
Update: John Tabin has posted a recording of the panel in MP3 format. I think I'm required to call this a "podcast" now, even if it's actually just an MP3 file that 95 percent of you will just listen to on your computers rather than uploading to your iPods for your next jog.