Monday, January 23, 2006

Wiretapping in wartime

Bush’s authorization of warrantless wiretaps has generated a political, and largely partisan, controversy. For the most part, his critics have been the usual suspects on the left, although libertarians are just as critical.

As is ordinarily the case in such controversies, where we come down depends in no small measure on how the issue is framed. I find the wrong questions being asked, or asked in the wrong order. The issue raises the following questions:

1.Did Bush break the law?

2.Is the law Constitutional?

3.Is it a good law?

Critics begin and end with the first question, whereas I’d begin with the last question and work back from there.

But, for the sake of argument, let’s follow the above numbering.

1.Did Bush break the law?

i) Short answer, I don’t know.

I’ve heard and read lawyers opine on both sides of this issue. The question is whether Bush violated the law by bypassing the FISA court.

ii) Even if he did go through the FISA court, this would not satisfy his libertarian critics since they regard the FISA court as a rubber stamp for the While House anyway. For them, this court is not a check on Executive power, but rather, a blank check.

iii) Speaking for myself, I don’t think it’s always such a bad idea for a president to break the law. Pres. Reagan broke the law in order to combat the expansion of Marxism in Latin America. He was just doing his job as Commander-in-Chief.

2.Is the law Constitutional?

i) If you assume that the Federal bench has the right of judicial review, then a president can violate an act of Congress without necessarily violating the Constitution. For Federal judges often strike down acts of Congress as unconstitutional.

ii) I suppose this poses something of a dilemma for a libertarian. Should there be a check on the authority of the Executive branch in the form of Congressional oversight and the Federal judiciary, but no check on the judiciary by Congress or the Executive?

In other words, why can the courts flout the law, but not the White House?

iii) However, I assume a libertarian would claim that Bush is guilty of flouting the Fourth Amendment. Yet that doesn’t follow directly from the text of the Fourth Amendment, which speaks of “unreasonable” searches as well as the issuance of warrants for probable cause. Are these two things or one thing? Is every warrantless search unreasonable? Traditionally, there are many legal exceptions to this equation.

3.Is it a good law?

i) Is it reasonable to intercept enemy communications during wartime? Sounds reasonable to me. What’s the point of having laws that protect our enemies from us instead of protecting us from our enemies?

As I understand it, all Bush has authorized is for the NSA to tap the foreign email address or cell phone number of a suspected terrorist. Sounds reasonable to me.

Obviously you can’t do this without monitoring both ends of the conversation—incoming and outgoing transmissions alike. So it’s not as if the Executive is targeting American citizens.

That’s a side effect of targeting terrorists abroad. The NSA is finding out, in the course of wiretapping a terrorist overseas that the second party to the conversation may be an American citizen.

At the same time, if we have American citizens conspiring with our enemies abroad, I’d certainly like our gov’t to know about it. After all, domestic sleeper cells pose a more direct threat than someone oceans away.

As to whether this violates the civil rights of American citizens, I happen to think that any citizen guilty of espionage should lose his citizenship, which would solve that particular problem.

ii) The problem with the FISA court, as I understand it, is that to secure a warrant you must, of course, overcome a certain burden of proof (probable cause) regarding the identity of the target.

But, of course, this misses the point in a couple of key respects:

a) The target is not a person, but a phone number or email address.

b) The purpose of such surveillance is to ferret out who (and where) the bad guys are in the first place. Why should we be giving a terrorist network the benefit of the doubt? Why should we assume the risk?

I’m well aware of the potential for presidential abuse of power. But, as a practical matter, you don’t prevent presidential abuse of power by passing laws. After all, who’s going to enforce it if not the Executive branch? The Executive controls the Department of Justice. No president is going to enforce a law on pain of self-incrimination. And he can always pardon anyone who would otherwise testify against his administration under threat of prosecution.

On paper, you can impeach a president, remove him from office, and prosecute him thereafter, but there’s never been any political will to carry that out.

As a practical matter, the only effective check on the presidential abuse of power is the ballot box, where you vote a corrupt administration out of power.

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