America Needs a Full Time President
- Ryan Singel has a post “Bush Wiretaps Supremely Illegal,” in which he discusses how this aspect of wiretaps are settled law.
- Perry Metzger’s excellent “A small editorial about recent events” is also worth reading:
As you may all be aware, the New York Times has reported, and the administration has admitted, that President of the United States apparently ordered the NSA to conduct surveillance operations against US citizens without prior permission of the secret court known as the Foreign Intelligence Surveillance Court (the “FISC”). This is in clear contravention of 50 USC 1801 – 50 USC 1811, a portion of the US code that provides for clear criminal penalties for violations. See:
http://www.law.cornell.edu/uscode/html/uscode50/usc_sup_01_50_10_36_20_I.html
The President claims he has the prerogative to order such surveillance. The law unambiguously disagrees with him.
- See also Matt Rustler’s “A Little Honesty, Perhaps” which contains this excellent argument after lots of detailed legal analysis:
If that’s not enough, allow me to offer what I’ll call the proof from common sense: If the NSA eavesdropping fit into any exception to the general FISA requirements, you can bet your sweet keister that the administration would be trumpeting the details from the rooftops. It isn’t.
Also, his “Questions and Suggestions for the Left and Right” is worth reading. I’d like to respond to his argument:
Do you have any background in counterrorism and intelligence? If not, how do you know that the existing FISA procedures were adequate for the task at hand? If you do have such a background, please enlighten the rest of us. Uninformed opinion about factual matters with which few of us have any practical experience is seldom helpful.
With one that mirrors his own: If existing FISA procedures were inadequate, then over the course of four years, that argument could have been brought to the Congress for a revision of the law. None was. Proof from common sense?
If you don’t catch the titular reference, you might want to read Richard Nixon’s resignation speech. You may believe that the commentators who have said the law is not clear are correct. If you do, I urge you to read the articles linked above. The law is not complex in this instance. It offers clear and unambiguous requirements for wiretapping. It offers secrecy in the cases. It offers exceptions that address the various urgencies that might exist, including a provision that allows wiretaps if, after they’re started, the agency goes and gets retro-active permission. Read the law.
“If existing FISA procedures were inadequate, then over the course of four years, that argument could have been brought to the Congress for a revision of the law.”
Hoist by my own petard. Almost. I can see the administration thinking something like this:
(1) FISA isn’t adequate under these circumstances.
(2) If we go to Congress and ask for amendments to make FISA adequate, here’s what will happen:
(a) We’ll be publicly pilloried by the ACLU, mainstream media and a bunch of others for trying to create a “police state”;
(b) We’ll have to expend political capital — maybe lots of it — to get the amendments done, or even to try to get them done;
(c) Congressmen being on a whole a shifty lot, many of whom care more about getting elected and playing partisan politics than they do about winning this “War on Terror” (and who’ll jump to point the finger at the Executive Branch if something bad happens), we’re liable to wind up with an end product that doesn’t really make things much better;
(d) In the meantime we will have focused all sorts of attention on these issues, which may make it much harder to resort to the president’s Article II power as justification for what we think we need to do if we can’t get FISA changed;
(3) We think the president’s Article II powers permit us to do what we need to do;
(4) Screw 2(a)-(d); let’s skp straight to Article II. it’s easier to ask forgiveness than permission.
Leaving aside how you feel about (3) and (4), none of the preceding would prove that FISA is adequate to the task at hand.
Hoist by my own petard. Almost. I can see the administration thinking something like this:
(1) FISA isn’t adequate for what we need to do.
(2) If we go to Congress and ask for FISA to be amended, here’s what will happen:
(a) We’ll be publicly pilloried for trying to create a police state;
(b) We’ll have to expend political capital — maybe lots of it — to get the amendments done;
(c) Congressmen being on a whole a shifty lot, many of whom care more about getting elected and playing partisan politics than they do about winning this “War on Terror” (and who’ll jump to point the finger at the Executive Branch if something bad happens), we’re liable to wind up with an end product that doesn’t really make things much better;
(d) In the meantime, we will have focused all sorts of attention on this matter, which may make it much harder to resort to the president’s Article II power as justification for what we think we need to do if we can’t get FISA changed;
(3) We think the president’s Article II powers permit us to do what we need to do;
(4) Screw 2(a)-(d); let’s skip straight to Article II. It’s easier to ask forgiveness than permission.
Leaving aside how you feel about (3) and (4), none of the preceding would prove that FISA is adequate to the task at hand.
Oops. Sorry for doubling up.