Schumer's Praiseworthy Punt

An editorial in yesterday's Times reminds me that I'd meant to blog a bill introduced by Chuck Schumer that would give a clear legal cause of action to anyone whose speech has been curtailed as a result of a reasonable fear that they (or their interlocutors) might be targeted by the National Security Agency's warrantless wiretap program. (The ACLU has already filed such a suit on behalf of various journalists and academics, but it was unclear whether they'd be found to have standing, since none of the plaintiffs can know for sure that they've been targeted.)

The top legal scholars not actively employed by the Bush administration seem mostly to agree that the wiretap program plainly broke the law. But a proposal to even censure the president for this sends Democrats scurrying, and polls suggest a slim majority of the public is all too happy to be tapped. Since the program's secret, that will mean that the government can get away with breaking the law so long as it's politically popular unless the courts have some hook to grab on to. While I'm not holding my breath for its passage, the Schumer bill would at least let legislators hand off the problem to the courts, who are more likely to make the right decision, without opening themselves to charges they're "soft on terrorism." In fact, supporters can turn it around: If you're sure this program's legal, why not let the courts vindicate you?

Addendum: It'd be good to get this moving soon, since apparently Attorney General Alberto Gonzales won't rule out tapping totally domestic conversations as part of the president's "inherent authority." Which is funny, because I'm pretty sure that the Supreme Court already ruled it out.

Comments

[bubba]

Julian, you are confusing "I disagree" with "this must be illegal."

You ignore prior Presidents and Attorneys General from both parties who agree that the NSA wiretapping is part of the President's constitutional authority.

The public seems to agree, however slightly, with the President's opinion.

Congress can't bring itself to say otherwise.

Give me a freakin' break. This isn't a legal question. It's a political question of how we divide power in this country.

This H&R entry falls into the ever more popular trap of "if I can't win the political fight, maybe the Courts will rescue me."

Now, it seems perfectly logical and reasonable to argue about whether the President should be allowed to do these things, or whether it's useful to do these things, but calling it "illegal" is hyperbole squared.

Furthermore, any reference to "top legal scholars" to make a point is completely laughable. These are the same people who thought Harvard could exclude military recruiters.

[Damon D]

I'm extremely uncomfortable with any of this wiretapping, though my more hawkish side says "If you aren't a citizen, you can get tapped, baby."

Julian's right about the punt on this one. I may not have great love for the current flavor of the majority of courts in the US, but they are less likely to stick their fingers in the air for a test of popular sentiment.

[bubba]

bubba,

If the government conducts a search of me (i.e. a wiretap of my phone calls) without a warrant, is that not a violation of the 4th Amendment? How is that not a legal question?

[Frank_A]

Also, what about Cass Sunstein? I originally heard he thought the law was legal, has he changed his mind?
Of course, Cass being the state-loving person he is, wouldn't call it illegal but surely he's not a paid stooge for Bush...

[Dave W.]

Congress can't bring itself to say otherwise.

Give me a freakin' break. This isn't a legal question. It's a political question of how we divide power in this country.

1. If the bill passes then Congress will have brought itself to say otherwise.

2. If Congress says it is a legal question, then Congress has decided to divide power in the US by the expedient of making these questions legal ones. Ain't nothing wrong with that.

3. If all this means that we ride into a more perfect union on the backs of lawyers, well so be it. Just because lawyers are pure evil doesn't mean they can't be useful in the grand scheme.

[John]

a bill introduced by Chuck Schumer that would give a clear legal cause of action to anyone whose speech has been curtailed as a result of a reasonable fear that they (or their interlocutors) might be targeted by the National Security Agency's warrantless wiretap program

What is this a Saturday Night Live skit? There are 300 hundred million people in this country, who exactly could prove that they have a reasonable fear that they might be wiretapped? What are the odds of any one individual ever being wiretapped, unless of course that individual is doing something like say, working with Al Quada, that might cause me to think I am being wiretapped. It is like some kind of bad scheme to catch a terrorist, see if you can get them to come forward and sue the government and then grab them.

[Julian Sanchez]

Former presidents think presidents have broad powers? I'm shocked. And this isn't about assuming something is illegal because I disagree with the policy: If you've read the legal arguments on both sides, it isn't even a hard question. At this point, with a small handful of exceptions, the only people claiming otherwise are doing so for transparently political reasons. And if that's the case, wanting the courts to "rescue me" isn't a trap if they actually do it.

As for it being hyperbole to describe the program as "illegal"... no, it's the only honest way to describe the situation. Either FISA is unconstitutional to the extent that it conflicts with these supposed inherent powers, or it isn't. If it is, the program is fine. If it isn't, then the president has violated a criminal statute. Where I come from, it's not hyperbolic to call violating a criminal statute illegal.

[Julian Sanchez]

John-
If you click through the link to the bit about the ACLU people, you'll see who.

[John DeWitt]

Julian, you are confusing "I disagree" with "this must be illegal."

You ignore prior Presidents and Attorneys General from both parties who agree that the NSA wiretapping is part of the President's constitutional authority.

The public seems to agree, however slightly, with the President's opinion.

I think he may be equating "this is clearly unconstitutional" with "this must be illegal."

Former presidents and presidential stooges say it's a president's prerogative? What in the flaming hell do you expect them to say, and how does that negate the clear language of the fourth amendment?

And as for what opinion polls say...

[A Gonzalez]

Remember guys, I'm watching you...

[John]

Jullian,

Your collumn says the following:

"Jaffer argues that since the disclosure of the NSA program his clients have been hampered in their communications with sources abroad, who may fear their confidential conversations will be subject to ?indiscriminate, unchecked government surveillance.? "

What is their proof? Yeah, they may believe it or say they do, but what evidence is there that their fear is reasonable? What evidence is there that the NSA ever wiretapped them or even considered doing so. More importantly, how do they know this?

[Rockwell]

I always feel like, somebody's watching me.

[Peter K.]

Julian, you are confusing "I disagree" with "this must be illegal."

It's the President who's confused about the nature of the law. It's not optional. You can't just ignore it. Well, you can, I know ignoring the law can be moral, take civil disobedience and Martin Luther King Jr. as examples. (By the way MLK was subject to warrantless wiretapping). But I don't see the President engaged in civil disobedience here.

The New York Times reported:

"Mr. Gonzales also clarified again a statement he made on Dec. 19, a few days after the spying program was disclosed by The New York Times. At the time, he said the administration had not sought an amendment to the 1978 law because "certain members of Congress" had "advised that that would be difficult, if not impossible." Since then Mr. Gonzales has said the real problem is that such legislation could not be enacted without compromising the program."

Well the program's been compromised, so why don't they change the 1978 law that they've broken?

[Pedant]

"... I'd meant to blog a bill introduced by Chuck Schumer ..."

The concept of "blog" as a transitive verb is a notion that needs to be taken out behind the barn and shot, to put us out of its misery.

[Dick Cheney]

Which is funny, because I'm pretty sure that the Supreme Court already ruled it out.

I got four words for you: F*** the Supreme Court.

[G W Bush]

I don't care what some goddamned piece of paper says! I can do whatever the hell I want to because we're at war!

[thoreau]

John, is there any power grab by George W. Bush that you would oppose, even if he said it was for the sake of the war effort?

Now, ask yourself the same question again, but assume that [insert Democrat here] is President.

[John]

thoreau,

I supported Clinton and the war in Kosovo and certainly would have supported a President Gore in his right to use wiretaps to listen to phone conversations of foreigh combatants.

That BTW is not what is occuring. Everyone operates under the false notion that the NSA pogram was some guy listening to every call. It is nothing of the sort. It is a giant algorythem that looks at millions of calls and culls out the few that contain the right key-words. That program in itself is not wiretapping in the ordinary sense of the word. Further, it seems to me to be rediculous to say that someone can go to Pakistan, join Al Quada, train as a terrorist and come back to the U.S. to be a terrorist and the NSA can listen to their phone conversations all the way up until they enter the U.S. and then the NSA must go through the FISA process to do so. No, I do not support making U.S. soil a free operation zone for terrorists.

[Lowdog]

Seriously, John, what is it about this president/administration that gives you the idea that it's ok to use the constitution as toilet paper and launch pre-emptive invasions against foreign countries, not to mention treat american citizens as enemies?

Oh yeah, I'm just a moonbat, so I have no idea what I'm talking about. Bush has been totally honest his whole tenure, invading Iraq saved the planet from destruction, etc.

I forget things easily.

[SR]

"Everyone operates under the false notion that the NSA pogram was some guy listening to every call. It is nothing of the sort. It is a giant algorythem that looks at millions of calls and culls out the few that contain the right key-words."

Do you actually read what you're typing? The surveillance program isn't a "wiretap" in your opinion because it records every telephone conversation and then selects some for individual review? So if a police department invents a robot that can detect cocaine and releases it into a neighborhood where the robot systematically enters every room of every house and then reports back just on the question of who has cocaine in their house, no 4th Amendment "search" has happened?

[thoreau]

No, I do not support making U.S. soil a free operation zone for terrorists.

Neither do I. Fortunately, the FISA court would almost certainly approve a warrant if a guy has just entered the US after training in Al Qaeda camps. If he is who you say he is then the executive branch can show the evidence to the FISA court (by all accounts a fairly sympathetic venue for the executive branch, and a venue where sensitive information can be safely discussed) and approval will be relatively easy to get.

This isn't about the rights of terrorists. This is about the executive branch being on a leash. All I ask is that the executive branch operate under the scrutiny of the judiciary, in accordance with the laws set forth by Congress.

If you have a problem with that, perhaps you should move to North Korea, Iran, Syria, Egypt, Uzbekistan, Saudi Arabia, Turkmenistan, or Belarus. They have no use for these wussy "checks and balances." In fact, some of those tyrannical regimes are even friendly to the US. At least one of them even gets a large sum from us every year!

[thoreau]

I'll make this simple for you, John. America adheres to certain principles. If you and your buddy George Bush don't like it, you're free to leave any time.

America: Love it or leave it.

[Ron Hardin]

The executive can do what it wants if it can make a plausible case that it ahs the powe, against the judicial and legislative branches both.

The legislative branch can impeach and remove the President if they don't like it.

Doing that however probably implies considerable voter support.

That is, in this dispute, the voters rule, which is more or less what you want.

Do what is necessary at the time and apologize later.

[thoreau]

I'm tired of all this "blame James Madison first" mentality. If you don't support our system of checks and balances then you don't love America.

John, why do you hate freedom?

(And that last question isn't a joke. I'm dead serious. If you believe in unlimited executive power then you don't love freedom. Period.)

[Rick Barton]

Yeah! The Constitution: Love it or ...oh come on John, ya gotta love it.

If you're sure this program's legal, why not let the courts vindicate you?

Julian Sanchez for president!

What SR said.

[Eric the .5b]

I'll make this simple for you, John. America adheres to certain principles. If you and your buddy George Bush don't like it, you're free to leave any time.

America: Love it or leave it.

Tell us how you really feel, Thoreau...

[thoreau]

Actually, Eric, I'm completely serious. If somebody can't stand living under a system of checks and balances, if he'd rather live under an unchecked executive, he should go find a place more compatible with his preferences.

I'd say the same thing to a person who wanted a single-payer health system: If you want it so badly, move to Canada.

[Reg]

As serious arguments are few and far between in these parts, this is probably pointless, but here goes.

If the president had inherent authority to do something, he can do it even if the Supreme Court says he can't. Here's an example. Suppose the president wanted to pardon this perv in Homeland security and the Supreme Court said the president can't do it. Who wins? The president can say nuts to you and refuse to enforce the Supreme Court's judgment. It doesn't matter who is right. The three branches are coequal and have a lot of tools at their disposal to spite the others.

The political branches used to have this type of conflict a lot more often, think president Jackson and his "let Marshall enforce it" comment, or the impeachment of Johnson and the passage of the 13-15 amendments by dubious methods to trump the Supreme Court's Dred Scott decision. Or FDR's failed court packing plan. The political branches have done a better job of avoiding conflict, especially since the judiciary earned a lot of political capital by being on the right side of the civil rights battles in the 1960s.

Ultimately it comes down to who the public is going to favor in the fight and how far a politician thinks he can extend his position. On wiretapping al qaeda, I'd guess the president can go pretty far in ignoring the other branches, and the other branches know this, and will avoid picking a losing fight to preserve their own power for a fight they can win.

[Rick Barton]

If the president had inherent authority to do something, he can do it even if the Supreme Court says he can't.

What?? That's just the point. If the Suremes say that the it's unconstitutional then the pres has no inherent authority.

[Rick Barton]

...Make that: If the Suremes say that it's unconstitutional, then the pres has no inherent authority.

[Pedant]

Actually, make that: If the Supremes say that it's unconstitutional, then the president has no inherent authority.

[Rick Barton]

So what's wrong with pres? Cuz I kinda like to abbreviate as long as it doesn't muddy the meaning. Can ya dig it?

[thoreau]

The Constitution says that pardons can simply be given at the President's discretion. But the Constitution also says that any sort of search or surveillance must be approved by courts or done with probable cause. The principle is simple: The power of the state to grant mercy is unchecked, but the power to intrude on a person's private life is circumscribed. And if the President tries to ignore that then he is blatantly violating the Constitution in both letter and spirit.

If Bush doesn't like checks and balances he should move elsewhere.

[Pedant]

Well, Rick, I was more interested in "Supremes" versus "Suremes."

But I do think "pres" is ripe for muddiness (at a glance, it can read as "press"), particularly on a libertarian blog, particularly in a thread about rights and speech.

[crimethink]

Req,

Since when is "might makes right" a serious argument?

I mean, obviously, if a substantial majority of the population and military is willing to support the president no matter what he does, then he can line up Congress and the Supreme Court against the wall and be done with them. That doesn't make it a legitimate exercise of his powers.

[Fictional President Charles Lo]

John, I like your attitude. In fact, since you see absolutely no limits whatsoever to executive power, I think I have a little project that's right up your alley....

Just remember: If I tell you to do it then by definition it isn't illegal. No matter what.

Your first assignment: Kill Kiefer Sutherland. He's in my way.

[Rick Barton]

Pedant:

"Supremes" versus "Suremes."

Oops. Sorry; my bad. I'll stand by "pres" though. But ya know, if it weren't for the Preview button, which I most oft make use of. Well, I shudder to think. Thanks, Pedant.

[David Director Friedman]

"Now, it seems perfectly logical and reasonable to argue about whether the President should be allowed to do these things, or whether it's useful to do these things, but calling it "illegal" is hyperbole squared."

A law was passed, quite a while ago, which said that doing these things was illegal and that doing them was a felony punishable by up to five years in jail. "Against the law" is what "illegal" usually means.

The administration's argument seems to be either that the law was always unconstitutional and they just never got around to mentioning the fact, or that when Congress authorized the use of force against Al Quaeda it was implicitly repealing FISA, it just didn't know that was what it was doing. Neither of those seems very persuasive.

Incidentally, I proposed one possible legal strategy for suing the NSA in an old post on my blog:

http://daviddfriedman.blogspot.com/2006/01/how-to-sue-national-security-agency.html

[Geoff Nathan]

John (and the President's defenders in general) continually miss the point in our objections to the absence of judicial review. Of course the US Government has the right to wiretap conversations with Al Qaeda conspirators. But they have to prove (perhaps later, but they'll have to prove that too) that they had good reason to believe their targets actually were Al Qaeda operators. And prove it to an independent body that Americans can have confidence in. Simply asserting 'I'm the government--trust me' won't cut it. Far too often 'the government' has proven itself untrustworthy.

[thoreau]

There's another issue that the Constitution-haters overlook: This isn't just about making sure that the innocent aren't spied on. This is also about making sure that resources are used wisely.

We have been assured by the hawks that our very survival hinges on making the best possible use of our vast resources to defeat a few thousand guys who live in caves and use box-cutter knives. Given the stakes, given that these guys could, at any moment, sneak up on us and impose Sharia law, shouldn't we require that the executive branch be reviewed by authorities who ensure that resources aren't wasted?

For all we know, if resources are wasted to spy on a harmless Greenpeace office, the Islamofascists might use that window to impose Sharia law on the US.

And it will all be the fault of the "Blame the Constitution First" crowd. I'm warning you guys: If we lose this fight, if Jennifer and Smacky wind up in burkas, it will all be your fault.

(It's fun using hawkish rhetoric! If only this rhetoric was actually logical and grounded in reality. Then it would be even more fun.)

[Jennifer]

The president can say nuts to you and refuse to enforce the Supreme Court's judgment. It doesn't matter who is right. The three branches are coequal and have a lot of tools at their disposal to spite the others.

And yet, by statements like this you imply that, while the three branches may be equal, the President is more equal than the other two. Checks and balances doesn't just mean that the President can check the Congress and the courts--it also means the latter two can check the President. Why is this being so readily overlooked?

Another thing about this defense of indiscriminate wiretapping--shortly after 9-11, when news of the infamous "Bin Laden plans to attack the US" memo came out, Presidential defenders insisted that it was understandable for the powers-that-be to ignore it, because there's just so much data flooding into our intelligence agencies that nobody could be expected to find that one deadly needle in our intelligence haystack.

And yet these same people are now arguing in favor of ignoring the Constitution in order to pile even more

[Jennifer]

Whoa, HTML went badly wrong.
The sentence fragment "And yet these same people are now arguing in favor of ignoring the Constitution in order to pile even more" should have ended "pile even more hay onto the stack".

[Daniel]

thoreau-

My guess is that Jennifer is actually a guy who would really get off on wearing a burka. If that's the case, she (or he) has more to fear from a Bushite military coup than a takeover of the country by Al Qaeda.

But a serious question--why do so many libertarians support Republicans? It's hard to imagine a less libertarian party. Is it because you think Republican incompetence will destroy government, a sort of "worse is better" strategy? Are a lot of you guys former trots by any chance?

[thoreau]

Daniel-

I see why many libertarians prefer Republicans to Democrats (taxes and guns), but I don't see why they prefer consolidated Republican authority over divided government.

[Daniel]

Thoreau:

How do taxes and guns stack up against government in the bedroom and pushing unscientific gibberish on schools?

[thoreau]

Daniel-

You're asking the wrong person.

[McSnark]

...pushing unscientific gibberish on schools?

Well most environmentalists are democrats so they're about equal on that score. 🙂

[McSnark]

And environmentalists have never had any problem pushing their unscientific gibberish on schools.

[Daniel]

Exaggerated estimates of the human contribution to global warming aren't in quite the same league as creationism, which seems to be big among certain Republicans.

[McSnark]

Nobody, except a biologist, perhaps, ever lost a job because he didn't believe Darwin's theory. Millions could suffer serious economic disruption because of policies based on the whacked out bullshit of environmentalists.

Let's just call this one a wash.

[biologist]

but people could lose their lives because their health care provider doesn't understand how drug resistance forms, which is an application of Darwinian theory.

[Daniel]

The Chinese are desperately trying to adopt western medicine while goofy Americans are opting for acupuncture and other unscientific "alternative medicines." In thrall as it is to the pre-modern fundamentalist right, the Republican party contributes mightily to the dumbing down of America. So why do intelligent, scientifically inclined (albeit ideologically fanatic) libertarians prefer Republicans to the much more secular Democrats? It can't be just lower taxes and looser gun control.

[thoreau]

It can't be just lower taxes and looser gun control.

Spend some more time on this forum and see if you still stand by that statement. For many libertarians that's exactly what it is.

For me, I'm not a big fan of what either party would do if it were given unchecked power. I am, however, a big fan of divided government.

[Eric the .5b]

Actually, Eric, I'm completely serious.

Oh, I'm not disapproving, just a bit startled and amused by your vehemence in contrast to your usually very measured tone. It's always a "wow" moment when the calmest guy in the room loses his patience.

[McSnark]

but people could lose their lives because their health care provider doesn't understand how drug resistance forms, which is an application of Darwinian theory.

I consider it highly unlikely that a significant number of morons who do not understand evolution wil get jobs in healthcare where such knowledge matters.

One cannot say the same thing about how many people who get jobs as policy makers spouting the views of environmental whackjobs.

As I say call it a wash. Each side has its own set of whacked out pseudo-scientific notions, including innumeracy. On top of that economic illiteracy is rampant. And we won't even discuss ethics.

[Isaac Bartram]

Actually, I could understand libertarians' preference for the Republicans if it was still the party of men like Goldwater. Yes, I know that there are still some independent western Republicans out there (there's a couple of OK ones in FL too), but the Dems have a couple of them too. And frankly if the Dems nominate someone like Bill Richardson or Brian Schweitzer in 08 they'll get my vote. And I won't even have to hold my nose and look away while I do it, like I do now whenever I vote for one of the major parties.

It's worth remembering that Goldwater opposed the Kennedy tax cuts (finally pushed through by LBJ), believing that cutting taxes as long the government was running deficits was unconscionable (for anybody looking for more W=LBJ evidence).

In our new bizzarro DC the Democrats are the budget hawks.

[Isaac Bartram]

Yes, I know that there are still some independent western Republicans out there (there's a couple of OK ones in FL too), but the Dems have a couple of them too.

Would read better as:

Yes, I know that there are still some independent westerners out there (there's a couple of OK reps in FL too), but the Dems have a couple of them too.

The next sentence might make sense in that context too.