Warrants and National Security
The American Left, realizing that Plamegate is going no where and that Iraq’s rather fulsome turnout in its most recent elections puts paid to the happy idea that supporting the terrorists will somehow nail Bush, has fastened onto the fact Bush ordered the NSA to wiretap domestically. And damned if he didn’t do it without first obtaining warrants. And, now that the NYT has pulished the details, Bush has not only admitted doing it but shows no signs of shame or remorse.
Meanwhile, the American right is suggesting that the people who leaked this information be tried for treason and if convicted, shot.
In matters of criminal investigation I believe warrants are an absolutely necessary safeguard of an individual’s liberty. I also believe that the standard for granting a wiretap warrant needs to be kept very high. Such warrants should never be “automatic”.
That said, wiretapping in cases where there is a clear and present danger to a nation, is much more akin to the exercise of the war power rather than the criminal jurisdiction. Especially as the issue here was the direct possiility of an attack on the United States or its allies.
Much noise is being made about the provisions of FISA and whether the wiretaps violated that statute. My quick read says they certainly violated the terms of FISA. And I would love to know why the Administration did not, even retrospectively, take its actions to the secret court for ratification.
However, the legal points are only mildly interesting: the political point is this, an American president did what he thought best when the nation was under attack. Part of what he did may have been contrary to law. He was supported in his actions by his own legal officers and he kept selected Senators and Congressmen apprised of his actions.
Someone took it upon himself to provide details of this secret operation to the NYT.
Who do you think will be more popular with the great majority of the American public?
Put it another way, assume for a moment that Bush had complied with every jot and tittle of FISA and a nuke went off in Seattle. Do you really think it would help for Bush to say – “But I had warrants for all the wiretaps. The folks in Seattle were vaporized, and, while we are very sorry about that, it takes time to obtain the paperwork required under FISA. We had to be sure we didn’t cut any legal corners otherwise we’d be just as bad as al-Qaeda.”
December 19th, 2005 at 9:08 am
Flush. Bye bye Jay’s libertarian cred.
December 19th, 2005 at 10:02 am
Oddly, Robert, from a libertarian perspective, once you get over the idea of any nation waging war at all, warrants are not a huge issue.
Remember, almost any warrant is issued on a knowledge and belief affidavit and if it is to be attacked, that attack will occur preliminary to trial. But if there is a trial the warrant will almost certainly be upheld as the mere fact charges were laid will prove the basis of the warrant.
The protection offered by a FISA warrant is even thinner. After all, under FISA, the application and issuance of a warrant is, in itself, secret.
As protections go requiring a warrant before wiretapping or email interception is pretty minimal. And rendered largely irrelevant by the fact that any terrorist/drug dealer/racketeer is going to be using encryption software which even the NSA has trouble cracking in real time.
December 19th, 2005 at 11:19 am
Shorter Jay: I only get outraged when the gubmint tries to make me wear a helmet while riding my bike.
December 19th, 2005 at 6:10 pm
It is something of a capitulation as searches without warrant were one of the key principles the Founding Fathers were acting against – at a time of as great a crisis to the cause as ever there were.
Seeing as the administration had 36 hours after the fact to get a back dated warrant in an emergency and as only one in 1500 warrants were ever refused by the secret court, I would not put this down to reacting in a time of crisis so much as complacancy that there would never be a refusal of a warrant so why even bother.
December 19th, 2005 at 9:01 pm
Shorter Jay:
I’m now a full-blown Bushbot. Whatever the Leader says is legal is legal. Leader “did what he thought best”. That’s good enough for me.
December 20th, 2005 at 12:18 am
Alan, I am astonished that the Administration did not take its actions to “secret court” where, as you point out, they would almost certainly have won. Why they didn’t requires explaination.
But the 1 in 1500 ratio suggests, the acquisition of a warrant under FISA has become a pro forma exercise which actually protects no one’s rights.
(I always thought the Fathers were against “unreasonable searches” rather than being especially pro-warrant. But that is a chat for another day.)
Pug, I would love to see you make that argument over the glassy core of the Pike Street market.
December 20th, 2005 at 2:09 am
The “gubmint” using evidence obtained by illegal or questionable means to simply thwart your nefarious scheme is different from bringing charges against you.
If your crime is foiled but no charges are brought because the evidence won’t stand up under techicalities in a court, what right – other than basic privacy – has been infringed? I’m annoyed by eavesdroppers and people who don’t mind their own business, but their is no shortage of the latter.
December 20th, 2005 at 2:16 am
Jay – look under “general warrant” for very interesting information about how the forces of the British abused authority on the right to search 1750 to 1783. The ban on them is one of the cornerstones of their democratic way as set out in the constitution that is far more used but far less discussed than the little used right to bear arms against the state. Once the government has the blanket right to search no home is a castle – a castle in this sense being a bullwork against tyranny.
December 20th, 2005 at 2:42 am
Alan, I completely agree and the idea that a warrant may prevent unreasonable searches is a very important one. However, it is the concept of “reasonableness” rather than the warrant indicating that a judge has considered the matter which is critical.
I certainly think that it would have been wiser for the Bushies to, even ex poste, bring their wiretaps before the secret court; but it appears that they believed that the war powers granted to the President after 9/11 overode the strict necessity of this formality. And, realistically, it is only a formality in this particular case.
Reasonableness is a slippery concept as you know. What is reasonable investigating a drug deal as between two citizens of the United States which takes place entirely within the United States may be a far cry from what is reasonable in attempting to prevent another 9/11.
A President at war has a good deal more latitude; which is not to say that if the wiretaps extended to, say, ANSWER, I would not be demanding Bush’s impeachment. Again, warrantless wiretaps against dissenters would almost never be reasonable, whereas those wiretaps against American based al-Qaeda operatives would almost always be justified.
December 20th, 2005 at 2:59 am
Interestingly, during the Revolutionary War it was the opposite. The enemy was considered so dangerous that it had to be dealt with accrording to the strictest adherence to procedure to ensure all was correct. There was a scandal when a certain raiding party of Loyalists was caught and summarily executed. I will try to find the reference but the idea was that the most dangerous of enemies deserve the strictest attention to due process.
December 20th, 2005 at 3:37 am
I am as Draconian as just about anybody when it comes to going after the folks who would kill or convert us all. But I am uncertain on what basis a President can claim war powers when there is no particular state actor to declare war upon and consequently no declaration of war. In the particular cases of Afghanistan there were only three countries in the world who recognized the Taliban as the government; the United States government not being one of them no war declaration was made in that instance. And while Congress authorized the President to use force in ousting Hussein I do not believe there was a war declaration in that instance either.
So, while we are dealing with a “war on terror” (not “terrorism”, I notice Condi Rice carefully parsed that one) I see no legal rationale for Presidential war powers unless the same could be said for the “war on cancer”, “war on drugs” or “war on poverty”.
December 20th, 2005 at 4:08 am
Alan, I am inclined to think, as a matter of prudence, that a periodic trip to secret court would have been a very good idea.
Gonzales is maintaining that the authority to bypass FISA “That authorization, he said, was implicit in the authorization for the use of military force in Afghanistan following the Sept. 11 attacks.” (washington post
This strikes me as almost certainly true for a period of time after 9/11 – though I would be hard pressed to come to a precise determination of how much time.
The problem I see for the Bushies is the ongoing nature of the program. A year? Probably within the contemplation of Congress; three years? I doubt it.
Again,so long as the targets were al-Qaeda connected or thought to be al-Qaeda connected, I don’t think the political damage from the failure to go to secret court is going to be extensive. All the people who hate Bush will still hate Bush and those of us who are supporters or indifferent might well think he needs better legal advice.
If there is any evidence that that taps extended beyond individuals directly connected to terror then I think Bush is finished and should be.
December 20th, 2005 at 5:50 am
I dunno. I think this is where you are going to start to see Yanks kicking back. The right to property is the right to keep the state’s frikkin’ hands off it and eyes away from it. There are a lot of pro-Bush red state laddies who are going to be very uncomfortable with an all seeing Big Brother federal government for, as you say, the war…without end…amen.
December 20th, 2005 at 11:15 am
On any other issue Alan I would agree; but terror is different. The fact is that the Americans are still in shock from 9/11 and if it is a matter of a technical violation of a law which actually creates an entity affectionately known as secret court and which has granted all but one of 1500 plus applications for warrants, I don’t think the average red stater will crack a sweat.
And, again, I am making the key assumption that the wiretaps were directed exclusively at al-Qaeda linked targets. If they were tapping Joe Wilson’s phone that is the end of Bush.