Monday, August 21, 2006
The NSA case: What ought to be done to discover the dots?
Get thee to a Wall Street Journal this morning and read James Q. Wilson's takedown($) of last week's NSA "wiretap" decision. Wilson takes apart each of Judge Taylor's constitutional arguments, but the discussion of her Fourth Amendment "analysis" is particularly devestating:
[Judge Taylor] also says that the surveillance violates the Fourth Amendment. But that provision only bans "unreasonable searches and seizures," not all searches and seizures. Customs agents have the right to search, without a warrant, you and your luggage (including your PC) when you enter this country. The Border Patrol can stop and search recent arrivals here when they are miles from the border. The Supreme Court has authorized customs officers to open incoming international mail without a warrant. It is not clear how a phone call or email originating overseas deserves more protection than clothing, the contents of a computer, or international mail. The Supreme Court has upheld all of these exceptions to constitutional limits on searches.
What is most striking about Judge Davis's decision is that she nowhere discusses the approval of warrantless searches by other and higher federal courts. In 1980, the Court of Appeals for the fourth circuit held (U.S. v. Truong Dinh Hung) that "the Executive need not always obtain a warrant for foreign intelligence surveillance." That is because a "uniform warrant requirement" would "unduly frustrate" the discharge of the president's foreign policy duties. It would "delay executive response to foreign intelligence threats" by requiring the judges instantly to make decisions about rapidly evolving events.
In 2002 the FISA review court itself held (In Re: Sealed Case) that the president "did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." The Supreme Court has never spoken on this matter, but it is astonishing that Judge Davis never discusses the FISA and appellate court decisions that bear directly on this question.
It is possible that the surveillance violates the FISA law. That statute allows the government to tap the communications between foreign powers provided that there is "no substantial likelihood" that these communications will involve a "United States person." If an American will be part of the communication, then a warrant from the FISA court must first be obtained.
This statute, written in 1978, was aimed at dealing with foreign governments that wished us harm, but it preceded our experience with modern terrorists. Now we know that our cities can be attacked at any time in ways that cause thousands of deaths. Listening in on possible overseas terrorists who are talking to Americans is designed to find out who may attack us, when and how. Such eavesdropping is done to discover who is a terrorist. It is impossible to have "probable cause" to justify hearing such calls, and therefore impossible to obtain in a timely manner a FISA warrant.
No one outside the National Security Agency knows the details of our surveillance of communications between an American and a person living overseas, but there can be little doubt that it is intended not to bring criminal charges but to learn who is a terrorist before he has a chance to act. The surveillance is designed to provide investigatory leads, not prosecutions. These leads are, I suspect, sudden, ephemeral and suggestive. It is hard to imagine that, in this country's efforts to connect the dots, that our government should not be allowed to discover the dots.
This last point is essential. The 9/11 Commission and countless other analysts -- including, by the way, countless Democrats -- recognized that prevention of a terrorist attack requires surveillance quite different from Cold War-style counterintelligence or the prosecution of the Mafia for crimes that have already been committed. To stop terrorists before the fact, the government has to observe and understand a whole range of fundamentally legal activities (the "dots"), see a pattern in those activities, and act in time to interdict the conspirators before they get dangerously close to executing the attack. Whether or not the NSA surveillance program violates FISA, the apparently governing statute, it is obviously designed to discover the dots that analysts need before they can connect a damned thing.
Now, I am prepared to believe that ultimately a responsible court will determine that the NSA program violates FISA. I am further inclined to believe that the Bush administration "should" have done its level best to extract a suitable amendment to FISA from Congress back in the early stags the program. Clearly lawful is better than possibly unlawful, even if the administration believes it has a legal argument that passes the red-face test.
At the end of the day, though, the ultimate legality of the program does not tell us whether a judge ought to be able to tell the executive branch not to tap the phones of people who might plausibly be foreign terrorists, acting in support of foreign terrorists, or know foreign terrorists, if the target of the surveillance happens to conference in a "U.S. person." People who support the strict enforcement of FISA and would oppose its amendment believe that federal judges should have precisely that authority. In other words, those people believe that the terrorists -- by choosing which numbers to dial -- should determine when a United States federal judge has the authority to veto the government's wiretap.
If journalists were doing their job, they would force critics of the NSA program to distinguish their criticism so that normal people can understand it. Do they believe that judges should have the authority to veto wiretaps of foreign terrorists who conference in a "U.S. person," or are they merely objecting to the failure of the Bush administration to amend FISA before embarking on this program? Is it that they believe judges should ponder the specific facts of each wiretap -- that is, after all, what they are supposed to do before they issue a warrant -- or are they merely offended that Congress was not asked for an up or down vote? Any critic who fails to distinguish between these two objections is not furthering the debate so much as leveraging it for political advantage. Any journalist who does not at least attempt to pin down the subject of his interview on this question has failed his profession.
CWCID: Andy McCarthy.
3 Comments:
By 
luc, at
Mon Aug 21, 10:42:00 AM:
The more I read about Judge Taylor's opinion the more it becomes conclusive that instead of a legal decision, her's is a crass political statement.
By FrauBudgie, at
Mon Aug 21, 12:06:00 PM:
I've given up on journalists being able to understand the medical and scientific stories they present.
They're not real good at aritimetic, either.
Don't know why I'd expect reporting of a court decision to be any different.
By Lanky_Bastard, at
Mon Aug 21, 01:21:00 PM:
Luc, that's looking more and more universal. Even lefty law blogs claim the opinion is sensationalized garbage.
As for FISA, it's not that restrictive. Apperantly FISA rejected something like 5 out of over 18,000 warrant applications through 2004. So, you've got >99.99% warrant approval on a population that has to be mostly non-terrorist. (I hold it as self-evident that if 1/100th of those 18,000 were actual terrorists we'd have had problems by now.)
I guess when you're really looking for a blank check, it hurts to only get a rubber stamp. All administrations want more power and less oversight. The decision to go outside FISA just shows they can't be trusted with it.
