Do They Think They're Talking to Goldfish?

In my post on Smith v. Maryland below, I forgot to take note of two mindboggling claims from the Stephen Spruiell piece I linked. First, Spruiell finds one Bush-the-First legal flack to claim, incredibly, that… well, I'll just quote it so you don't think I'm making it up:

"I think it's fair to say that the statutes contemplate the transfer of this generic type of data much more on a case-by-case rather than a wholesale basis," he says, meaning that the statutes call for a court order only in cases when the government is making a targeted request for information. But, he adds, "I don't see anything in the statute that forbids such a wholesale turnover."

That's right, true believers. Targeted requests for information are covered, requiring some kind of minimal showing of particularized suspicion sufficient to obtain a court order, but the government can dodge that pesky restriction by cleverly being completely indiscriminate! You just get them to turn over the whole batch, then search that database for whatever more specific info you wanted, and for which you'd have needed a court order if you wanted the telecom company to single it out first before turning it over. The relevant statute is the Stored Communications Act, which stipulates that telecom companies "shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service…to any governmental entity." See, a subscriber. It doesn't say a thing about all subscribers! Seriously, I don't even know if I can bring myself to make fun of this argument—it feels like picking on the retarded kid in gym class. My only real question is whether Spruiell is some kind of crypto-Bush-hating mole, because I can't fathom why, if you found a defender of the program deranged enough to offer you this argument on the record, you'd embarass the administration by printing it. There are a handful of defenses that are at least marginally less batshit crazy on their faces, after all: Orin Kerr deals with some of them. Invoking this one implies that completely batshit crazy is the best you've got.

But Spruiell does seem to sense that even readers as willing to be persuaded as most NR readers presumably are will balk at swallowing this. So he tries another tack:

Others, such as former Bush administration Justice Department spokesman Mark Corallo, argue that the statutes don't apply in this particular case because the legislature cannot encroach upon the president's constitutional authority to intercept enemy communications in a time of war. "The fact is that, in this case, no statutes apply," Corallo says. "It's the constitutional authority of the president. We are at war, and the president has the authority to gather intelligence to repel foreign threats. It goes back to the beginning of the Republic—the Supreme Court has just never held that the president doesn't have that authority."

Except… uh… it has. In fact, not only has it, but every Bush apologist in the country was citing the case in which it made that ruling a few months ago, when they were falling all over themselves to find some scrap of evidence for the claim that the first program of illegal NSA surveillance was somehow immune from the relevant statutes. Remember this one? United States v. United States District Court? Here, I'll hum a few bars:

Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.

As you may recall, wiretap defenders were touting this one because the Court made a point of saying their ruling applied to domestic surveillance, and they weren't staking out a position about communicaitons with foreign powers. (This was, bizarrely, read as the Court's implicitly signing off on such taps as an inherent executive power.) But that's the Fourth Amendment, right? The question here is whether Congress can set limits for the executive's domestic surveillance powers. But the Court continues:

Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III….We do hold, however, that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe. [Emphasis Added]

Whoops. There is still some wiggle room left: They might concede the general claim was wrong, but say that Congress' power is limited to specifying warrant procedures the executive has to follow consistent with the Fourth Amendment, which under Smith v. Maryland isn't implicated in requests for these particular kinds of records. (There's the complicating factor that, as I understand it, the SCA actually provides for a cause of action against the telecom companies rather than the government–I'm not even going to pretend to know how to suss out how that affects the analysis.) Now, that's not wholly clear, because the litmus test for Fourth Amendment protection is whether you've got a subjective expectation of privacy that society is willing to recognize as "reasonable." And when you've got a federal law in effect for decades requiring that certain kinds of information not be disclosed, well, call me crazy, but it seems like at that point we've created an expectation of privacy, and announced by codifying the expectation in law that society does regard it as reasonable. It would obviously be constitutionally suspect for Congress to attempt to contract the scope of our expectation of privacy in this way, but as long as we're going to use that kind of intrinsically fuzzy and evolving standard, Congress very well might expand its scope in this way. But even if that's wrong, there's an additional problem: The PATRIOT Act contains specific provisions laying out the process by which intelligence agencies are supposed to seek court orders from a FISA court for this kind of information gathering for national security purposes. To invoke the kind of argument I'm imaging here, the administration would basically have to say it's been aggressively promoting, and signed into law, provisions that their own theory renders unconstitutional, for the only function of those provisions is to regulate executive conduct that, on that theory, is outside the purview of Congress: The gathering of pen register records for national security purposes. As with the previous wiretap program, it strains credibility to insist it's vital that the government be granted new powers, and then, when you're caught flouting the very light limits on their exercise, turn around and claim it's OK because you had still broader powers than were granted all along.