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Wednesday, December 21, 2005

More on the Secret Sleuthing

In response to this post, Ben Bradley e-mails a link to these two posts from Georgetown professor Marty Lederman at Balkinization, which I hadn’t seen. The first is the more substantive, in which Lederman throws a few darts at the AUMF argument—that when Congress signed off on war, it also signed off on any operations domestic or foreign needed to win that war. I find that argument to be a tough sell, and Lederman’s critique is powerful.

Ben (among others) seemed to ignore it in his comments to me but I actually mentioned in this post and here that I don’t buy the arguments in favor of domestic spying. The extenuating circumstances that keep me from writing a treatise against the administration on this particular score are (1) From the current facts-as-we-know-them, it appears that these were one-off authorizations and Bush’s executive orders specifically required that one party be a known terrorist associate and that one party (the same or the other) be overseas and (2) In the post-9/11 world, immediate intercepts strike me as an entirely necessary tool which I wouldn’t mind being used on me should someone from a Libyan hut ever ring up my home.

MORE: I’ve edited a few paragraphs from Ben’s e-mail, which owing to him being at work came to me in all lowercase. He writes:

The issue is that, as Bush construes it, this decision of his is beyond legal or even legislative review. The legislature may be “briefed,” but he claims that his Article II powers permit him to conduct these searches even without review, judicial or otherwise, in wartime. I, as a civil liberties freak, would be fine with ceding the president this power against a terrorist threat. But I would demand, in return, oversight by the legislature and the judiciary over this careful balancing of security and rights in war, and [I would] expect the president to be forthcoming with the nation, within the realm of reason, about his decision. Bush was not forthcoming, especially far past the point where absolute secrecy was essential.

As I’m sure you’ve seen by now, he was intentionally misleading, unless you restrict his statement to the USA PATRIOT Act itself, which seems patently ridiculous. Furthermore, I have heard of no way under Bush’s currently construed powers that he could be stopped or monitored, short of illegal (on account of classified programs), unconstitutional (if you accept his implied rights under the constitution), or irrational (revoking his war powers when he’s fighting a war on terror) legislative action. This is cause for me, and many Americans — not just liberals, to be gravely concerned.

Although the woeful note Ben plucks at the end isn’t, in my opinion, called for, these are good points. I would suggest, though, that the Bush administration—from the way it seeks to justify policies and the way it has reacted to negative rulings in the past—is actually quite responsive to the check of the Supreme Court. And Congress always has the I-word, poisoned by politics or not.

The pervasive question that remains, and to which Ben alludes, is why the White House jet set on this spying regimen without a retrospective FISA order. The answer probably lies, perhaps forever, behind the national security wall.

Posted on December 21, 2005 11:40 PM. Permalink