Transterrestrial Musings

Comments

First question: when does the war end? If warrantless wiretapping is justified "because we're at war," how will we ever know when it is _not_ justified? Since no war has been declared, this seems to give the administration the authority to conduct warrantless wiretapping forever.

Corollary question: do you want a Democratic administration to have the same power to conduct warrantless wiretapping? After all, if we are at war into perpetuity, then eventually we will have someone like Hillary Clinton in the White House, using the war to justify warrantless wiretapping.

Second question: what's the big deal about getting a warrant? Isn't the Constitution founded on a basis of checks and balances, checking executive power with the other branches of the government?

Third question: if violating civil liberties is merely "collateral damage," then can't we take that argument further? Can we argue that in order to protect children from accessing pronography on the Internet, we need to issue subpoenas to search engine companies like Google and demand that they turn over information? Yes, some civil liberties may be squashed, but it is all in service of protecting American children, therefore collateral damage to privacy is justified. Right?

Posted by Tom Shembough at January 20, 2006 09:40 AM

Whose Civil Liberties were violated. I am unconvinced that any innocent party has had their Civil Liberties violated.

"
Corollary question: do you want a Democratic administration to have the same power to conduct warrantless wiretapping? After all, if we are at war into perpetuity, then eventually we will have someone like Hillary Clinton in the White House, using the war to justify warrantless wiretapping."

Like the previous administration did? Like when Clinton used 'National Assests' to conduct photorecon of domestic territory in the wake of the Oklahoma city Bombing in 95? Far worse has already been done. If a future administration, regardless of party affiliation, wishes to continue to survey the communications of Al Quedia members, I am wholly ok with that. This certainly does not give the President carte blanche to survey the American People as he sees fit. Of course that didn't stop Clinton from domestic use of spy sattelites for a domestic law enforcement operation.

I found this new revelation enlightning:

http://www.realclearpolitics.com/Commentary/com-1_20_06_MK.html

"As legal authority for the program, Chertoff cited a 2002 decision of the FISA Court of Review, which is one level down from the U.S. Supreme Court, holding that a president has "inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information."

Apparently, even the FISA court agrees that this is within th ePResiden't scope of Constutional authority.

Posted by Mike Puckett at January 20, 2006 09:49 AM

First question: when does the war end?

That's the crux of the issue. It would be much simpler if we would clarify not only with whom we are at war, but define end conditions.

Second question: what's the big deal about getting a warrant?

They're not always granted. It's up to the discretion of a judge.

Isn't the Constitution founded on a basis of checks and balances, checking executive power with the other branches of the government?

Yes, but the Constitution is also founded on the basis that the Commander-in-Chief and the Executive Branch manage wars, not the Judiciary. A search can be reasonable without a warrant.

And your question about children and porn is completely inapplicable, since the issue is about war, and war powers, not domestic law enforcement. That's what sets the limit.

Posted by Rand Simberg at January 20, 2006 09:54 AM

Re: Puckett:
Mr. Puckett seems to have no problem with assaults on civil liberties at all. It is apparently okay if either a Democrat or a Republican does it. That's his prerogative. However, I would suggest that he would be more effective with this argument if he learned how to type.

Re the responses to questions:
"It would be much simpler if we would clarify not only with whom we are at war, but define end conditions."

And since there seems to be no indication of this happening, you are in essence arguing for granting the president open-ended powers into perpetuity. After all, as long as it is a "war" (although not a declared war via act of Congress), then violation of civil liberties is justified.

If so, then we also have other wars that we can apply this to, correct? What about the war on poverty, or the war on drugs? Not declared (neither was the war on terrorism), but violations of civil liberties are still okay, because somebody has said that we're at war.

See the problem?

As for why not get a warrant, you responded: "They're not always granted. It's up to the discretion of a judge."

And what is the problem with this? Are all exercises of presidential authority justified in wartime? Are they all justified even when there is no declaration of war? (And if the answer is yes, then we should reexamine the Congress' role in budgeting the military, because that obviously interferes with the president's authority in wartime too. Congress can say no to the President as well.)

As for the subpoena in the Google case, it is indeed relevant because it is part of a larger presidential policy of asserting executive authority at the cost of civil liberties. You don't have to be a paranoid lefty to see that this is about expanding the power of the executive office--something that has been a stated goal of this White House since the beginning. Civil liberties hold less sway with this White House because they argue that there is a "greater good" being served.

Posted by Tom Shembough at January 20, 2006 10:49 AM

Another issue is how much collateral damage is ok? One of the points about modern precision munitions is that they reduce collateral damage. What bothers me here is that we're not doing something equivalent for domestic espionage.

It looks to me like the executive branch was engaging in warrantless, unsupervised monitoring of a large portion of communications. In other words, I see little attempt to reduce collateral damage nor to make sure these "weapons" are used exactly for the expressed purpose of capturing terrorists. What is the intelligence equivalent of the "smart bomb"?

Posted by Karl Hallowell at January 20, 2006 11:17 AM

"Re: Puckett:
Mr. Puckett seems to have no problem with assaults on civil liberties at all. It is apparently okay if either a Democrat or a Republican does it. That's his prerogative. However, I would suggest that he would be more effective with this argument if he learned how to type."

I suggest that you would be more effective in your arguments if you weren's so agressively eager to commit Strawman Fallacies.

I am in favor of Civil Liberties for citizens. I am not in favor of absurd imaginary rights for enemies engaged in hostile acts. I do not engage in Lilliputian thought.

There is an enormous difference between the two.

Your problem seems to be either an inability or unwillingness to differentiate.

Posted by Mike Puckett at January 20, 2006 11:23 AM

Hallowell: "It looks to me like the executive branch was engaging in warrantless, unsupervised monitoring of a large portion of communications."

How so? I've seen no evidence that supports your above claim. Per AG Gonzales the criteria for listening in on a call sans warrant was that one end of the call must be outside the US and the party on that end must be known, to a reasonably certain degree, to be AQ or AQ affiliated.

That sounds to me like a very narrow definition rather than covering "large portion of communications" as you claim.

Posted by Cecil Trotter at January 20, 2006 11:48 AM

The issue of Congress not enacting a formal declaration of war is false. The Supreme Court decided in cases in the early 1800s that a joint
resolution of Congress can be equivalent to a declaration of war. The Authorization for the Use of Military Force enacted by Congress in 2001
is such a jount resolution. We are at war. Period.

Posted by Jim Breeding at January 20, 2006 12:37 PM

Great article, Rand. I agree whole heartedly that the US has gone to great strides to reduce collatoral damage, and that effort has paid back dividends far greater than just the safety of innocent lives. I think that the US no longer needs to consider actually using a nuclear weapon (we still need them for deterence), because we can assure target destruction with as low as 2 F-117's (noted from Tommy Frank's book "American Soldier").

As for Tom:
1st question: Good question! I wish I knew. We still have a bad situation in Korea and that war was started over 50 years ago by a Democrat. Fortunately, we are at least making efforts to have closure in Iraq, instead of the foolish state we were in for over a decade. However, the battles in Afghanistan and Iraq can be considered over the moment we sign formal peace agreements with their legitimate governments.

Corollary question: While President, Bill Clinton conducted various wire tappings without warrants on American citizens not engaged in conversations with foreign nationals or "enemies". Do I like the idea? Not particularly, but then, I dislike Americans blowing up buildings even less. The President has the authority and responsibility to defend us from forces both foreign and domestic.

2nd question: The activity of getting a warrant can be noticed by enemies and work as a "tale". On the other hand, the enemy need only create a lot of "chatter", thus causing an overflow of warrant request, to bring the process to its knees. It is for this reason that a President is given extraordinary powers in times of war.

3rd question: No. Rand answered this well enough.

Posted by Leland at January 20, 2006 01:51 PM

Tom,

I'm going to answer your questions:

First question: when does the war end?
I concur with Rand's answer; this isn't defined at the moment. It is a complicated question that may not have a well defined answer.

Corollary question: do you want a Democratic administration to have the same power to conduct warrantless wiretapping?
This question assumes the context that warrentless intelligence gathering is broadly used (misused?) and isn't subject to review. I not sure those assumptions are valid. I do want every president to be able to have all necessary powers to prosecute declared wars against enemies of the US.

Second question: what's the big deal about getting a warrant? Isn't the Constitution founded on a basis of checks and balances, checking executive power with the other branches of the government?

Several answers. 1) The desire for broad searches; scan every person with IR, geiger counters, etc. Reasonable but not requiring a warrant.
2) Tech is beyond current law. What if I want to track and store every number called by or to Terrorist A. Then every number called by or to those numbers, and so on ad infinitum. Afterward I "index" the data to find interconnections. Have I "tapped" all those numbers? Current case law is vague in this case.
3) Volume. Current cell phones are disposible, and VOIP numbers can change in seconds. Having to individually specify each of these in a "warrant" (yes, that's the current law) is un-useful. How is a judge supposed to evaluate a request to tap 50,000 phone numbers, most of which are not known at the time of the warrant?
4) Is a warrant obtained before searching a prisoner on the battlefield? Why not? If that enemy soldier is captured in New York does this change? Why not?

Oversight should be maintained, but 1 phone number/one terrorist = one warrant is plain stupid.

Third question: if violating civil liberties is merely "collateral damage," then can't we take that argument further?

This is a valid worry; I enjoy my presumption of innocence. However, the constitution isn't written to protect terrorist and criminals. It is carefully constructed to ALLOW the gov't power to enforce laws. Are you really arguing that the President doesnt' have Article II powers? Or that this case isn't Article II worthy? Or that wars can only happen outside the US?

Go read the Forth ammendment. It doesn't mention wiretapping -- it does use flexible language. Only later court decisions have delinated the boundries where they are today. It is perfectly constitutional to conduct warrantless wiretaps in conjunction with excercising Article II powers. I welcome the ACLU case so we can have decided case law to backup this rather obvious, and rather vital war making power of the president.

Posted by Fred K at January 20, 2006 02:18 PM

"I am in favor of Civil Liberties for citizens."

Okay, so you support requiring warrants for conducting eavesdropping on citizens. Are you now contradicting yourself?

Posted by Tom Shembough at January 20, 2006 03:26 PM

"The Authorization for the Use of Military Force enacted by Congress in 2001 is such a jount resolution. We are at war. Period."

Really? Okay, if it is that simple, then what kind of congressional action would officially "end" the war?

See the problem? If it is that easy to do, then this means that we are now in perpetual war and the President is justified (by your and Simberg's arguments) to violate civil liberties forever.

Posted by Tom Shembough at January 20, 2006 03:28 PM

"2nd question: The activity of getting a warrant can be noticed by enemies and work as a "tale"."

No. Not unless the enemy has a spy inside the FISA court. FISA allows for a judiciary check on this without the issue becoming public.

"3) Volume. Current cell phones are disposible, and VOIP numbers can change in seconds. Having to individually specify each of these in a "warrant" (yes, that's the current law) is un-useful."

"Unusefulness" a bad argument to make--essentialy you are saying that because technology makes something difficult to achieve, then civil liberties must automatically suffer.

Here's the big problem with this claim: substitute "suspected criminal" for "suspected terrorist" and your argument can be used for justifying warrantless eavesdropping on American citizens who are simply suspected of doing something wrong. Just because somebody uses VOIP does not justify the government listening in on their conversation.

The problem with all of these claims is that they really open the door to further breaches of civil liberties because the definitions they use are so amorphous and fluid. If we are "at war" without a formal declaration of war, and with no definition of when that war will end, and if the President is allowed to violate civil liberties _simply_ because he says that it is necessary--without any check on that power--then he will _always_ be allowed to do that. Why are you so willing to accept the president's word that it is necessary on this issue, and not willing to accept his word that violating civil liberties is necessary on others? Don't you at least want something to check those claims and make sure that they are valid?

Furthermore, if you look at recent American history, you would be hard pressed to find a period when we were _not_ at war of some kind. All through the 1990s American planes were being shot at in Iraq, or in Bosnia, or troops were on the ground in various hotspots. And if you believe that the war against al Qaeda really began with the WTC bombing in 1993, then we've been in a continuous war against terror for 13 years.

It seems to me that especially if you are going to claim that "we are at war" without any indication of when it will end, then some kind of check and balance is vital.

I would also note that the powers of the commander-in-chief are not absolute and never have been, even in wartime (see my above reference to Congress having power to fund the military). We have a president, not a king.

Posted by Tom Shembough at January 20, 2006 03:51 PM

"Okay, so you support requiring warrants for conducting eavesdropping on citizens. Are you now contradicting yourself?"

I see no contradiction. Again. apparently, neither does the FISA court:

Unless they are acting as fifth columnists supporting a hostile power, they should have to have a Warrant to be wiretapped. If they are, they should be subject to the rules of War as prosecuted by the Commander in Chief under the authority granted by Article II of the US Constution. This is not about criminal prosecutions, it is about the prosecution of a War. As the President said:"If you are having international conservations with Al Quedia, we want to know about it." Emminintly reasonable.

Ask yourself: Would FDR had to have had the permission of Congress or a Judge to eavsedrop on a conversation between a German fifth columnist located inside the CONUS and Adolph Hitler? What conclusion would a reasonable man derive?

Posted by Mike Puckett at January 20, 2006 03:58 PM

I would also note that the powers of the commander-in-chief are not absolute

No one has claimed that they are. It's hard to take you seriously when you continue to construct straw men.

Posted by Rand Simberg at January 20, 2006 04:14 PM

Tom says:
...your argument can be used for justifying warrantless eavesdropping on American citizens who are simply suspected of doing something wrong.

I respect the slippery slope argument, but I don't believe we going in that direction.

I don't hear your answer to the reverse: At what point does the president stop asking for warrants and starts fighting a war? This is a serious question. Clearly we don't require warrants for battlefield searches (or bombings). Where is the line? At the US boarder? (me: No) Based upon US citizenship? (me: No).

I contend that as long as the presidential authority is being used in context of the Article II powers and responsibilities then it is presumed to be valid. Case can be brought in court, Congress can impeach, people can vote, and bloggers can complain if they disagree.

Posted by Fred K at January 20, 2006 04:24 PM

If they hate us for our freedoms and we surrender our freedoms to the current Administration then they won't hate us anymore, right?

If that is the true Bush plan, its genuis!

Posted by Dumb Blonde at January 20, 2006 08:21 PM

DB, Thanks for proving it's true.

Posted by Bill Maron at January 21, 2006 04:11 AM

Cecil,

From reading news stories like this. I'll take into consideration the Attorney General's claim, however.

Posted by Karl Hallowell at January 21, 2006 02:11 PM

"I would also note that the powers of the commander-in-chief are not absolute

"No one has claimed that they are."

In essence, those arguing for allowing the president to conduct warrantless eavesdropping on American soil--without anybody checking that power--have been arguing that the president's powers as commander in chief _are_ absolute. They are saying that once war is "declared" (using an example that is not a declaration of war), then he has power to revoke civil liberties.

Now someone could say that they want him to have this power "only" during wartime. But as previously pointed out, we have no definition of when this war ends, and therefore this is an argument for allowing him this power forever.

One could also say that this power is "limited." But how do we know that? Based upon the say-so of the executive? Without a check on this power, then we will never know if/when it is being abused. We will never know the limits of "only."

As for that Weekly Standard article on FISA, it's got some BIG logical holes. One of the holes is their claim: "Though much of the court's workings are classified, there are known instances in which FISA's "probable cause" standard prevented the government from getting warrants where common sense made it perfectly clear surveillance was justified."

The reality is that whereas warrants have been sought under FISA over a thousand times, they have been denied only a handful of times. The Weekly Standard is complaining about one of the five or so times that the warrant was actually denied. Put a different way, The Weekly Standard is saying that warrants should never be denied, and hence, the FBI should not be required to seek them in the first place. But we know that the FBI has a long history of violating civil rights AND botching counterintelligence operations. They should be held to _some_ standards.

Posted by Tom Shembough at January 21, 2006 04:51 PM

n essence, those arguing for allowing the president to conduct warrantless eavesdropping on American soil--without anybody checking that power--have been arguing that the president's powers as commander in chief _are_ absolute.

In essence, this statement is complete and utter illogical nonsense. That's even disregarding the strawman that anyone claims that there is, and should be, no one checking that power. This is your bizarre fantasy.

Posted by Rand Simberg at January 21, 2006 06:05 PM

I would also note that the powers of the commander-in-chief are not absolute and never have been, even in wartime (see my above reference to Congress having power to fund the military). - Tom

Exactly Tom! Now if you will just stay on this track, you will notice that every year since 2003, Congress has passed legislation continuing the funding of the War on Terror (Point of Fact, that includes funding of that War in Iraq). With that issue out of the way, the President then has Constitutional Authority (and Responsibility) to prosecute this war within the Executive Branch.

Posted by Leland at January 22, 2006 07:44 AM

Y'know- I really don't care. If the feds find my miserable, boring life so interesting that they must eavesdrop on it for excitement- then they are a bunch of really, really bored idiots.
You would think, however, that all of this spying would have made it child's play to catch OBL.... they have not- not even close, and this will go down in history as the single greatest failure of this administration.

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