Protein Wisdom has had a slew of posts defending the secret executive order that allows for warrantless wiretapping of communications between U.S. citizens and those overseas. I decided to respond to part of one of those posts, discussing whether FISA is truly in the "national interest". (Go here to follow the discussion):
I'll take a shot at addressing part of your rebuttal of the MF/AL arguments. Your comments from an earlier post:
That the admnistration has chosen to engage the hypotheticals—often hysterical and farfetched hypotheticals, I submit—of the programs’ critics seems to me to serve three purposes:
3) to bait the left and civil libertarian absolutists into overplaying their hands by having them suggest forcefully and repeatedly that laws potentionally technically broken in an effort to serve the national interest (defending the homeland) are far more dangerous to the republic than the actions taken to prevent catastrophic attacks by an embedded enemy whose strategy is to manipulate the loopholes in our legal system;
First of all, it's not at all clear that setting aside current FISA regulations "serve(s) the national interest". One needs to examine if/how the administration is being hindered in intelligence gathering by FISA, and then weigh it against potential losses in American civil liberties.
From what I can see (and if there are other advantages, feel free to comment), putting aside the FISA regulations provided the administration with four potential advantages: less time needed to initiate wiretapping, less legwork necessary by lawyers and others involved in presenting cases to FISA, no need to deal with a judge in case the judge disagrees with the case made for wiretapping, and (related to the last point) the ability to legally listen to any conversations between a US citizen and someone outside of the country (either via targeted listening or through some sort of massive collection/filtering system).
The argument for time and legwork is in some ways combined: it supposedly takes "days, sometimes weeks, to get the application for FISA together", and because of that, it's too burdensome to go through the FISA application process. However, this is something that can be worked around without having to ditch the FISA standards. The government can hire more lawyers if the staff preparing FISA applications is overworked, and there's always the 72-hour retroactive time period for eavesdropping. So the national interest question here is this: Should we allow the executive the ability to listen in on the conversations of American citizens without judicial oversight because it would take more lawyers/legwork to follow FISA regulations? Most would say no, as the executive's ability to monitor enemy communications is hardly restricted by this limitation.
The third potential advantage is a cruicial one: If a FISA judge decided that a warrant was without merit, then the administration couldn't monitor that person. If I am gathering this correctly, your argument is that the executive has the right to decide who it wants to listen to, unfettered by the judiciary, as part of the war-making powers of the Constitution (see AUMF). Opponents of your position would say that U.S. citizens have a 4th amendment right to privacy that can't be crossed solely at whim of the executive. Hence there's one major reason for the FISA court; to decide whether the executive is acting within its role as one waging war when listening to citizens, and not as one breaking the 4th amendment.
So based on this "advantage" of putting aside FISA regulations, the national security question is the following: Should we allow the executive the ability to listen in on the conversations of American citizens without judicial oversight because a judge might say no? Unless there is some reason to think that the FISA court is operating in bad faith, this would be an absurd argument. If the government can't make the case that monitoring a citizen is for gathering enemy intelligence, then it shouldn't be able to listen to that citizen. (And again, this is a clear reason for a FISA court: to make sure that the executive is acting in good faith when it listens to American citizens.)
The fourth potential advantage of getting rid of FISA is that the government can use some sort of system that casts a wide net, via some sort of massive wiretapping/data collection/filtering system for tons of calls between American citizens and those overseas. It's unclear how such a system would work, as it could involve some sort of keyword search or maybe involve listening to all calls from certain geographical areas. Because it's unclear what systems are being utilized, it's a bit more difficult to formulate what the national security question is. But in any case, it is clear that the bar for "probable cause" that would be involved in bringing a case to FISA would be substantially lower (e.g. we can listen because they said "bomb", or we can listen because they called someone in Riyadh). So here, the national security question is this: Should we allow the executive the ability to listen in on the conversations of American citizens without judicial oversight based on a standard substantially lower than "probable cause" in the FISA courts. Or more directly, can the government set aside our 4th amendment rights based on things like keyword searches, where someone is calling, x-degrees of separation from Al Qaeda members, etc.
So it's not at all clear that ignoring FISA regulations is for the national interest. The administration is still able to monitor enemy communcations within the bounds of FISA. The government is only limited by FISA when it can't make a case that its monitoring is involved in the war on terror (see advantage #3) or when the standard for allowing eavesdropping (and impinging on citizens' 4th amendment rights) is minimal.
further, the have baited the left into arguing repeatedly that illegally and arrogantly leaking the classified nature of the program—and so destroying its efficacy as a way to protect us (without any concrete proof that laws have been broken)—is somehow more laudable than protecting state secrets that the DoJ, the NSA, the Administration, and the FISA review courts have all held to be within the purview of presidential authority.
First, if the classified program is ok by the FISA review courts, then why would a FISA judge resign after finding out about the secret executive order? Second, you have no evidence that by leaking the program, the leakers have "destroy(ed) its efficacy as a way to protect us". Third, if the secret executive order is found to be illegal, this won't be considered as a case of an illegal and arrogant leak; the leakers will rightly be considered as whistleblowers (see my comments here).
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Posted by: jobs in writing | November 03, 2011 at 06:55 AM