Wednesday, December 21, 2005

Strike A Posner! Vogue!

Posner weighs in on the domestic intelligence debate:

The only valid ground for forbidding human inspection of such data is fear that they might be used to blackmail or otherwise intimidate the administration's political enemies. That danger is more remote than at any previous period of U.S. history. Because of increased political partisanship, advances in communications technology and more numerous and competitive media, American government has become a sieve. No secrets concerning matters that would interest the public can be kept for long. And the public would be far more interested to learn that public officials were using private information about American citizens for base political ends than to learn that we have been rough with terrorist suspects -- a matter that was quickly exposed despite efforts at concealment.

Absurd. With due respect to the P-dawg, that danger is not "more remote than at any previous period of U.S. history." You can't dismiss the potential harm of practicing domestic surveillance on your own citizens by claiming that there are no secrets in government anymore. That's pat, trite, and flat-out wrong.

At the core of this debate is a philosophical difference of opinion over whether our continued safety matters more than our privacy. That's the debate we should be having. Dismissing one side's arguments in a generalized, under-thought paragraph is the equivalent of a liberal saying that war is bad, and if everyone just hugged, we'd be alright.

That's also absurd. You may not like war, but you have to acknowledge its occasional necessity in order to have a genuine discussion. Posner may not see a problem with domestic surveillance, but in order to make a compelling argument he needs to deal with the very real concerns of those who do have a problem with it. Otherwise, his POV is largely useless.

And lurking between the lines in this article is an unspoken, implicit fact: that even if our current way of handling surveillance is outmoded, our government has seemingly set aside legality to accomplish its aims. That's not good. If the law is wrong, or ineffective, change the law. Going outside the law makes you, by definition, a criminal.

And here in the U.S. we prosecute our criminals.


At 3:04 PM, Blogger Jabawacefti said...

Well, of course, the legal issue piqued my interest. Are the wiretaps illegal? It's actually a pretty close call. Or a close enough call, that the suggestion the authorization of the wiretaps is akin to "criminal" behavior seems far afield.

At 3:34 PM, Blogger codemorse said...

Let me be clear: I am not suggesting that the President has clearly engaged in illegal behavior. I am suggesting that legal alternatives to wiretapping exist, and that the administration has circumvented them.

Whether that's illegal or not centers, I think (and you're the legal brain around these parts) around the President's executive wartime powers.

If he has the legal authority to authorize this sort of thing, then he's within the bounds of the law. If he does not, then he is operating outside of the law. Isn't that a definition of criminalty?

At 4:19 PM, Blogger Jabawacefti said...

Is that the definition of criminality? Well, not necessarily. [How's that for a legalese answer?]

It's criminal if there's a criminal prohibition against it. By which I mean, a criminal code provision prohibiting the conduct and providing that it's violation is punishable by X amount of years and X fine, etc.

In such ways, the government operates outside the law in many ways that aren't considered criminal. For example, a violation of the Fourth Amendment prohibition against Unreasonable Search and Seizure isn't considered "criminal." However, it's violation will result in the government's inability to use evidence obtained by means of that illegal search and all subsequent evidence obtained from the "fruit of the poisonous tree."

I'm not familiar with the entire Criminal Code in any State or the United State Criminal Code, but I'm willing to bet that there's no provision criminalizing a government's wiretaps. If anything, it would be violative of the Fourth Amendment, among others, and the Court could enjoin the Government from proceeding.

But as we've learned, the Courts are hesitant to circumscribe an Executive's wartime powers.

It's a very interesting area nonetheless, Executive Wartime Power v. Judicial Circumscription of the Same. Very interesting indeed.

At 4:37 PM, Blogger codemorse said...

As usual, you school me, sir.

Good points, all.

At 4:02 PM, Blogger Jabawacefti said...

From the Wall Street Journal Opinion Pages:

John Schmidt, who served as an assistant attorney general during the Clinton administration, weighs in with a Chicago Tribune op-ed on the wiretapping kerfuffle:

"President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents. . . .

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the . . . courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence . . . We take for granted that the president does have that authority."

At 4:47 PM, Blogger codemorse said...


In 1952, the Supreme Court considered a remarkably similar argument during the Korean War. Youngstown Sheet & Tube Co. v. Sawyer, widely considered the most important separation-of-powers case ever decided by the court, flatly rejected the president's assertion of unilateral domestic authority during wartime. President Truman had invoked the commander-in-chief clause to justify seizing most of the nation's steel mills. A nationwide strike threatened to undermine the war, Truman contended, because the mills were critical to manufacturing munitions.

In what proved to be the most influential opinion in the case, Justice Robert Jackson identified three possible scenarios in which a president's actions may be challenged...where the president acts in defiance of "the expressed or implied will of Congress," Justice Jackson maintained, his power is "at its lowest ebb," and his actions can be sustained only if Congress has no authority to regulate the subject at all.

Like Truman, President Bush acted in the face of contrary congressional authority. In FISA, Congress expressly addressed the subject of warrantless wiretaps during wartime, and limited them to the first 15 days after war is declared. Congress then went further and made it a crime, punishable by up to five years in jail, to conduct a wiretap without statutory authorization.

Attorney General Gonzales contends that the authorization by Congress to use military force somehow implicitly gave the president power to wiretap Americans at home. But nothing in the authorization even mentions wiretaps. And that claim is directly contrary to the express language in FISA limiting any such authority.

In light of Congress' explicit rejection of unchecked wiretap authority, Bush, like Truman before him, is clearly in Justice Jackson's third category. To uphold the president here would require finding that Congress has no authority at all to regulate domestic wiretaps of Americans -- a proposition that would require overturning decades of established federal law built on congressional regulation of electronic surveillance.

It is possible, of course, that the president's advisors overlooked the Youngstown precedent, despite its status as the court's most important case on executive power during wartime. In the infamous Justice Department torture memorandum of August 2002, John Yoo -- who also reportedly wrote the memo justifying domestic wiretaps -- made a similar argument that the commander-in-chief authority included the power to order torture, in direct contravention of a statute criminalizing torture and a treaty prohibiting it under all circumstances. That memo did not even cite Youngstown. But ignorance is no excuse. The president acted in clear contravention of a criminal law enacted by Congress and a Supreme Court precedent, both directly on point.

At 5:16 PM, Blogger Jabawacefti said...

Ughh. I just cut and pasted and now I've got to read this stuff. It's moments like these when I wish I wasn't so lazy.


Post a Comment

<< Home