Outrage Deficit
In an earlier post, I commented that the NSA domestic spying scandal should trigger conservative outrage. Check out this grudging assessment of the NSA domestic spying scandal. No outrage there. None. Nada.
Update: The opposite of outrage is . . . avid support for lawlessness. Note that Kristol and co-author start with one of those fear-mongering hypotheticals that have become so popular. "Imagine the president knew something really bad was going to happen . . . ." I actually heard Tony Blankley misquote the Hand formula last night to suggest that, were the risk great enough, and the projected harm great enough, then . . . the president would have completely unlimited powers, for all practical effects.
posted by Number Three @ 8:06 PM
3 Comments:
In this case, the Congress didn't abdicate its responsibilty. It tried to balance security interests with the Fourth Amendment's privacy guarantees when it wrote the Foreign Intelligence Surveillance Act.
The law states that monitoring of US persons "under cover of law" outside the FISA procedures is a felony. Unless the Court finds that the law itself is unconstitutional, then the president authorized a lot of executive branch officials to break the law.
I suppose the key question is whether the FISA is an unconstitutional abridgment of an inherent presidential power to monitor US citizens for security purposes. I doubt there's any convincing case to be made that the president has such a power, especially not a "strict constructionist" case. (Maybe President Bush could use a little activist judging, after all?) There's nothing in Article II that speaks to this matter in any clear way, and then the Fourth Amendment restrictions on government would have to be read as limiting any Article II executive powers.
I don't recall specific Clinton administration debates on this, but there was some rumbling about domestic intelligence gathering issues from the libertarian right (Free Republic) during the 1990s.
See this NYTimes article from 1999 about Bob Barr and Porter Goss's demands for hearings about the NSA's Eschelon program: http://www.nytimes.com/library/tech/99/05/cyber/articles/27network.html . (One wonders what Porter Goss has to say on the issues today, now that he's an executive branch official in charge of intelligence gathering.)
I suspect that some souped-up version of Eschelon is what the administration has been using to monitor in blanket fashion phone calls and emails between the US and foreign countries. Eschalon can monitor billions of communications on a daily basis, and it then uses a "dictionary" to key on and retrieve particular communications based on specific words, numbers, or voices. The US has been blanketing the rest of the world with the system for a long time. Europeans from time to time accuse us of using it to spy on their corporations in order to give US companies an edge. But US law prohibits NSA from using it domestically.
But as for your question: the FISA does provide a specific, narrow exception to permit monitoring of foreign governments and their acknowledged agents without FISA court approval. The Act explicitly *denies* permission to electronically monitor nongovernmental actors, even international terrorists or non-acknowledged agents of a foreign power! I would guess that the problem with permitting monitoring of the latter was that it would open the barn door too far. After all, the only way to find out whether someone actually is a spy or an international terrorist is to collect enough information about them to discover it. Hence anyone could potentially be subject to the kind of blanket monitoring Eschelon is capable of, and Congress wanted to prohibit that.
If there are specific US persons the executive branch thinks are international terrorists or spies, they can go to the FISA court to get permission to monitor them (or start monitoring and get court permission later). But under FISA they cannot use Eschelon (or similar systems) to blanket monitor all communications in order to discover who is or is not a terrorist (or for any other purpose).
Thanks for the link to the York piece. Executives, whether Democratic or Republican, are always seeking more power. And opposition parties always want to deny it to them. It's a good rule of thumb, so I wouldn't doubt that some of this occurred under Clinton.
The FISA statute is very clear that the president does, in fact, retain the power of warrentless searches of foreign agents. The NSA can (and does) continuously monitor what goes on in foreign embassies in the US, and it doesn't need a warrant for any of that.
What York is doing is suggesting that FISA's "foreign power" exemption can be extended to *suspected* terrorists or spies. The statutory language is very clear on this matter, in that it mentions and rules out any effort to extend warrantless searching to suspected terrorists and spies. Only *acknowledged* foreign agents are covered by the exemption.
If the president wanted to change this, he should have asked for a change in the law. Congress would have been reluctant, of course, because it would mean anyone anywhere could be subject to warrantless searches.
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