Decision ‘08

Two Ways Of Looking At Yesterday’s NSA Ruling

You can look at it as a necessary step on the way to the Supreme Court ruling on this very important program, as the Washington Post did:

THE NATION would benefit from a serious, scholarly and hard-hitting judicial examination of the National Security Agency’s program of warrantless surveillance. The program exists on ever-more uncertain legal ground; it is at least in considerable tension with federal law and the Bill of Rights. Careful judicial scrutiny could serve both to hold the administration accountable and to provide firmer legal footing for such surveillance as may be necessary for national security.

Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA’s program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work — that is, as a guide to what the law requires and how it either restrains or permits the NSA’s program — her opinion will not be helpful.

Alternatively, you could talk about how ‘extraordinary’ this by all accounts pretty awful piece of legal reasoning is, ignore the fact that the decision is on appeal and will ultimately have to be decided by the Supreme Court, and immediately start beating the partisan drum for censure or worse, as Glenn Greenwald so unhelpfully does:

…[J]udicial decisions are starting to emerge which come close to branding the conduct of Bush officials as criminal. FISA is a criminal law. The administration has been violating that law on purpose, with no good excuse. Government officials who violate the criminal law deserve to be — and are required to be — held accountable just like any other citizens who violate the law. That is a basic, and critically important, principle in our system of government. These are not abstract legalistic questions being decided. They amount to rulings that our highest government officials have been systematically breaking the law — criminal laws — in numerous ways. And no country which lives under the rule of law can allow that to happen with impunity.

On a similar note, John Nichols tries to out-Greenwald Greenwald:

When Russ Feingold first argued that the Bush administration’s warrantless wiretapping program was in clear violation of federal law and the spirit of the Constitution, and that the Senate must censure the president for his wrongdoing, the maverick senator was condemned by the White House, ridiculed by Republicans and given the cold shoulder by most Democrats.

But, now, the Wisconsin Democrat who in March proposed that the Senate censure Bush for flagrantly disregarding the law has a federal judge on his side. And the question becomes: When will Democratic and Republican members of the Senate join Feingold in demanding that the administration be held to account for its assaults on basic liberties and the rule of law?

Which approach do you find the more productive?

On a partisan note, though, I hope the Greenwald/Nichols viewpoint carries the day for Democrats - I can think of no more effective way to ensure Republican victory in November than putting forward ‘Lamont Democrats’ who want to ‘cut and run’ in Iraq, and ‘Feingold Democrats’ who want to prevent the President from utilizing every available tool to shut down plots such as the one uncovered a mere week ago.

If you think that’s unfair (and I admit it is, in some respects), I’m just giving you a preview of what the campaign theme would be. I think it would be pretty successful…

16 Responses to “Two Ways Of Looking At Yesterday’s NSA Ruling”

1 Fargus Says:
August 18th, 2006 at 7:34 am
Of course it’s unfair. Feingold has never said that he wants to cripple the fight on terror. You’ve interpreted his actions that way, but what he’s come out against is the Congress and the country letting the President set up the precedent of being able to bypass congressional statute (and arguably, emphasis on the arguably, the fourth amendment). Personally, I haven’t a doubt that Feigold simply wants the techniques we use to be in compliance with the law, and if they’re not (and not unconstitutional), for new laws to be passed by the legislative body to bring them into accord with one another.
2 Mark Says:
August 18th, 2006 at 8:20 am
Again, I’m not saying I would go that far, but I guarantee some Republicans will (they already are) - and my point is, it will have some resonance. My larger point? Using the surveillance program as a partisan whip will boomerang on those Democrats who choose to use it that way, in my view…
3 Dmac Says:
August 18th, 2006 at 9:46 am
The question will be asked of Feingold and others of alike minds on this issue - if the bombers had succeeded in annihilating over 10 airplanes in the sky, what kind of debate would be in progress in the Senate today? No doubt, a dramatically different one, in which the new breadth and vast scope of surveillance techniques would be instituted immediately - this is not something the Dems want to discuss right now, for obvious reasons.
4 Fargus Says:
August 18th, 2006 at 9:50 am
Is the obvious reason because that didn’t happen, and wiretapping under the purview of FISA worked in this case?
5 too many steves Says:
August 18th, 2006 at 10:32 am
That combined with the alleged torture of some alleged collaborators in Pakistan.
6 Dmac Says:
August 18th, 2006 at 10:55 am
No, the obvious reason is that the British security services have extremely broad parameters in which to operate, and those parameters allowed them to begin surveillance immediately on all of the suspects, without waiting for a warrant to be issued by a judge. The police also had the opportunity to arrest and hold the suspects, even though they had yet to gather evidence that indicated “probable cause”, something that would not have been permitted here. Additionally, MI5 has the mandate and the relevant powers that the Homeland Security Dept. can only dream about, which is the ability to operate independently and conduct domestic surveillance, using all available tools at their disposal. No doubt, the Homeland Security Dept. is not capable of this type of work, but a similar tactical unit could be implemented here if so desired. These are the policies that made the arrests and abrogation of the attacks possible.
Blair made similar points in his recent speech in LA a few days ago. They’ve had many decades of counter - terrorism programs, mostly due to the IRA’s attacks.

Lastly, if the attacks had indeed been successfully carried out, the ensuing uproar would’ve silenced any and all critics of the present laws. The present laws would’ve paled in comparison to what would have eventually been enacted - and that is the question that the Dems cannot answer: namely, you can choose to enact the appropriate laws in accordance with the world we live in today, or wait until something much more Draconian is forced upon you as the result of a future atrocity.
7 peter Says:
August 18th, 2006 at 11:19 am
I wouldn’t make the assumption that those on the left — responsible ones, anyway — would necessarily be opposed to adopting England’s more aggressive use of surveillance and arrest. I think it’s a debate worth having. However, if we are going to go there, let’s establish what is permissible and what is not. The problem which I and others have with the Bush administration is not the surveillance itself but rather that they surreptitiously avoided the laws which are in place and evaded the separation of powers.

I’m also intrigued with Alan Dershowitz’s idea that we ought to allow torture applied to individual cases if it is approved by a panel of judges. (I’m not sure if I agree with it, but I’m intrigued). I think that is a debate worth having as well.
8 mtl Says:
August 18th, 2006 at 11:37 am
I saw a very good defense of the warrantless wiretaps by none other than Dick Morris:

His contention is that in order to obtain a warrant you have to state why you are making the request-which means you already know the ‘victims’ of wiretapping are terrosists.

Our current method seems to involve listening in beyond just a 48 hour window which seems to conflict with the FISA requirements-but pass the mtl sniff test. So long as the target sof the wiretapping remain terrorists it will be an easy case to make ot the american people.

Still waiting for the public martyr of the NSA/patriot act. Without one, the case against the programs can never be made.
9 Dmac Says:
August 18th, 2006 at 12:00 pm
“However, if we are going to go there, let’s establish what is permissible and what is not.”

Could not agree more, but I’m afraid that in the current polarized climate neither party will attempt to make the case, at least until after the next round of elections are held. By all means, let’s have a debate in the Senate on this issue, and determine what each side feels is acceptable at this point in time. I don’t believe any Senator had introduced new legislation pertaining to these programs so far, which led to my previously stated skepticism.

The question of torture is even more polarizing, but what if the rumours out of Pakistan are determined to be accurate? Is the torture of one (or many) suspects worth the price of thousands of lives at stake, or does the morality (or immorality) of the act negate the interrogation itself? The French could give us a few lessons on that issue, since they employed many torture techniques during their war in Algiers. Those torture techniques, BTW, make anything we use currently look like amateur hour. They used battery cable hook - ups to suspect’s genitals, employed the use of body mutilation, etc.
10 mtl Says:
August 18th, 2006 at 12:31 pm
Great googly moogly…

I found the ‘martyr’. I have a feeling there will be a lot of discussion about the plaintiff in the NSA case. In their effort to get standing-showing damages-they picked the type of guy I want being spied on.

http://www.debbieschlussel.com/archives/2006/01/whos_behind_the.html

Just when I think the democrats have a clear pasture, the aclu drops the biggest turd in history(next to kerry), and the dems taking heart from this case are stepping in it.

Do not trumpet this without reading the above link.
11 Ryan Bonneville Says:
August 18th, 2006 at 12:38 pm
For the record, I’m with Peter on this one. Going further, though, I don’t object to the surveillance program on ANY grounds other than the violation of separation of powers.
12 Decision ‘08 » Blog Archive » Bush Speaks Out On NSA Ruling Says:
August 18th, 2006 at 6:24 pm
[…] Shockingly, the NY TImes editorial board adopts the Greenwald approach to the matter: Ever since President Bush was forced to admit that he was spying on Americans’ telephone calls and e-mail without warrants, his lawyers have fought to keep challenges to the program out of the courts. Yesterday, that plan failed. A federal judge in Detroit declared the eavesdropping program to be illegal and unconstitutional. She also offered a scathing condemnation of what lies behind the wiretapping — Mr. Bush’s attempt to expand his powers to the point that he can place himself beyond the reach of Congress, judges or the Constitution. […]
13 peter Says:
August 19th, 2006 at 9:17 am
Hmmmm, a kumbaya moment. Did I do something wrong here?

Actually I think you would find unanimity across the political spectrum that eavesdropping on suspected terrorists is a good thing. I am sure that if you asked Ned Lamont, Ted Kennedy, Nancy Pelosi, or the editorial board of the New York Times, they would all support the (legal) use of surveillance. The administration has consistently tried to paint itself as vigorously trying to root out terrorists, but whose efforts are being impeded by Democrats who are opposing the use of wiretaps and spying to find them. Bush said as much yesterday (or Cheney last week with the remark that a vote for Lamont is a vote for “Al Qaeda types.”).

However, they are arguing against a straw man which does not exist. No sensible person argues against using law enforcement tools to find terrorists. The issue is whether the President (who, after all, is sworn to protect and preserve the Constitution) will obey or ignore the existing law of the land.
14 mtl Says:
August 19th, 2006 at 11:09 am
“The issue is whether the President (who, after all, is sworn to protect and preserve the Constitution) will obey or ignore the existing law of the land.”

Actually the ‘issue’ is whether the existing law allows for current tactics. Your summary makes it as if those laws are already clearly defined, which they are not.
15 mtl Says:
August 19th, 2006 at 11:29 am
Let’s try some scenarios for getting a warrant-

1. the ‘victim’ attends a mosque.
2. he is from a country known for producing terrorists
3. he/she works for CAIR.

While our ’surface’ law enforcement is prevented from profiling, should the government be restricted from doing so?

Can a judge be willing to sign a warrant based upon race or affiliation without any other reason? Should a judge granting a warrant for a mosque, be required to review each and every individual’s case in the mosque, and sign off on each member?

48 hours is a joke-it walks the line of giving the go-ahead, but only for two days. (Even if a warrant is obtained-within 48 hours, it is a warrantless wiretap.) Currently england can detain someone without specified reason for 28 days, so maybe an extension granting the right to simply listen in for a 28 day period should be considered.
16 peter Says:
August 19th, 2006 at 3:34 pm
Post 14: It seems to me that the FISA law is pretty clear that you cannot eavesdrop without getting a warrant through the FISA court. Read the statute: it’s all there in black and white. The law was enacted precisely to prevent the types of things the Bush administration has done.

Post 15: the question is really what defines probable cause. I don’t think that ethnicity or religious behavior — absent any other indication that the person is up to no good — is probable cause. The overwhelming majority of Pakistanis or Saudis who attend mosques are not terrorists. Hence I don’t see how these two things constitute probable cause that any individual who is a mosque-attending Saudi will commit an illegal act.