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Wednesday, December 21, 2005

Round Up: Legal Response To Surveillance Story

I’ve been skimming the legalese pond on the NSA surveillance story. Orin Kerr’s lengthy post—and its 275 attached comments—is a good place to start, but trenchant legal analyses abound on the legality (and constitutionality) of the supposed ‘program’ which still, from what I’m hearing, seems to be more a series of isolated cases rather than a secret policy change.

John Schmidt, who served under President Clinton from 1994 to 1997 as the associate attorney general of the United States, says that the actions attributed to the Bush administration are “consistent with court decisions and with the positions of the Justice Department under prior presidents.”

In an extralegal opinion piece, U. Chicago law professor Richard Posner, who sits on the U.S. Court of Appeals for the 7th Circuit, writes that “It is no surprise that gaps in domestic intelligence are being filled by ad hoc initiatives.”

Minneapolis attorney John Hinderaker points to a Foreign Intelligence Surveillance Court of Review opinion which appears to uphold ‘domestic surveillance.’

Former federal prosecutor Bill Otis, who worked on the case cited by Hinderaker, later e-mailed to confirm that precedential application.

Andrew C. McCarthy, an Assistant United States Attorney in New York from 1993 to 1996, notes warrantless searches of citizens would be shocking if they didn’t happen every day to almost everyone.

A post from U. Chicago law professor Cass Sunstein seems to indicate that the series of legal hoops through which the program would need to jump are on the president’s side, with the question eventually boiling down to the word “reasonable” in the Fourth Amendment which, most agree, is a battle the White House would likely win.

UCLA corporate law professor Stephen Bainbridge, meanwhile, is upset at the news, but offers no legal line against it.

PrawfsBlawg has a few posts about the situation, most of which recoil at the expansion of “inherent” executive power, but a lot of what is said there seems to be debunked by today’s Wall Street Journal editorial, which turns heavily on the inherent war-waging power of the president, using case law to prove the point.

Former Deputy Attorney General of the United States under Bill Clinton and 9/11 Commissioner Jamie Gorelick agrees that the president has a right to conduct unwarranted wiretaps, but she so agreed before George Bush was president.

Finally, Byron York tells the story of a FISA Court, by its own admission, simply not up to the minute-by-minute challenge of finding terrorists.

Most commentators offering chapter-and-verse analyses seem to come out on the side of the president. Those whose comments are bulwarked by parables of old dead English monarchs and Federalist No. 69 seem to come out against Bush. I tend to side with Publius and the Anglophiles, but I have no personal incentive to complain since, to be frank, if anyone from a Tora Bora cave ever gives me a call, I think I’ll want the National Security Agency to listen in. That said, if anyone finds a good legal criticism of the program, please do send it, and I’ll be sure to link.

Posted on December 21, 2005 01:37 PM. Permalink