Saturday, December 31, 2005

Interesting Debate Wrong Issue (paca)

This is a little blurb from an AP report this morning about the NSA domestic spying:

"The administration formally defended its domestic spying program in a letter to Congress last week, saying the nation's security outweighs privacy concerns of individuals who are monitored. In a letter to the chairs of the House and Senate intelligence committees, the Justice Department said Bush authorized conducting electronic surveillance without first obtaining a warrant in an effort to thwart terrorist acts against the United States. Assistant Attorney General William E. Moschella acknowledged 'legitimate' privacy interests. But he said those interests 'must be balanced' against national security."

I see the Asst Attorney General's point. Of course, civil rights and national security must be balanced. Reasonable debate and reasonable people could disagree on what the precise limits should be. But that is completely the wrong freaking issue.

This isn't a policy debate about what the law should be. That's what Congress is supposed to do. Debate the pluses and minuses to statue revisions and try to find the right balance. Notice what I just said. That is what CONGRESS is supposed to do, not the Executive Branch. Congress makes the law not the President. It certainly might be possible that whatever the NSA is doing should be legal. But, umm, it's not. There already is a law here on Foreign Intelligence and Surveillance. The executive branch must follow that law, even if they think it is a dumb one. Even if the Asst. Attorney General thinks the balance isn't quite right, it doesn't matter. It's still a law. The President has decided the law doesn't work and so he is going to go around it. You can't do that in a country based on law. The place isn't run by well-meaning people doing what is best. It's run by well-meaning people doing what is best under the law. I totally understand if someone thinks FISA needs to be re-written. If so, re-write it. But don't ignore it because it doesn't work for you.

I was able to get a little, albeit speculative, clarification on why the Administration decided to go around the FISA court when the court historically has approved over 99% of requests, is secret so no one would know they are being monitored, and allows for immediate monitoring of anyone as long as a Retroactive warrant is obtained within 72 hours. The administration has thrown out some odd explanations like the FISA court is too slow, but the whole Retroactive thing makes that less than clear. It has to be because they believed FISA would have denied some of the requests. From an NPR discussion this morning, it sounds like the Administration wants to fish for bad guys while FISA and any court requires probable cause. We know there are drug dealers in our community but the Court requires that you have probable cause before you go search their house. Same basic principle here. We know there are wannabe terrorists among us but FISA requires that you have some probable cause before you start monitoring American citizens. The Admin likely didn't think they could meet the rather low threshold and so went around it. As Bush said in his news conference "but- but- there are limits and controls; we can't just search everyone." (not a quote). But what Bush is asserting is that the Executive Branch gets to set those limits all by themselves. They determine who can be monitored, who is an enemy combatant, and what does and does not constitute torture. The fact that conservatives, the very people who are supposed to be fighting for smaller government, don't see the dangers inherent is a true testament to the power of loyalty.

Summary: Yes, reasonable people can disagree on what the law should be, but we aren't debating the law. We are requesting that the executive branch of our government follow it.

Update: I just had another thought. I think the majority of Americans don't care a lot about this because they don't see it applying to them. The Admin has been very adamant to say that they are focusing on international connections, though they have already acknowledged that they have had some pure domestic to domestic hits as well. Most Americans, at least where I grew up in North Louisiana, don't have international phone calls unless they are talking to a friend or relative in the military stationed abroad. Probably most of what the NSA would be interested in would be going to the Middle East, though certainly not exclusively, and that limits the perceived potential monitorees even more. My guess is that most Americans who like the program unconsciously imagine it watching that Pakistani or Egyptian guy in New York or the liberal Muslim professor; i.e., someone else. But, you see, my mother and dad live 2/3rds of the time in Morocco, so I call there sometimes. I haven't been yet but I would like to visit one day. Will I one day be on a list because of this? Moreover, just yesterday, N's mom called someone in Morocco to deliver a message (for my mom) about when they'd be returning. N's mom is a French professor (gasp!) and, I believe, a permanent resident. A french citizen, not an American citizen, calling Morocco? I wonder if a computer somewhere put a record in a database with the name, time, and date of the call. It won't tell anyone because that is not suspicious enough but it's there to be watched to see if a pattern grows. My guess is that I and my step-mom are not on a list. The point for me is that I don't want the same people who wish to use the spying software to be deciding who to use it on.


Killer Llama said...

Not to mention a certain llama living in BKK... and the admin hasn't just been intercepting phone calls, but emails as well. So those of you that have been emailing me directly... including a certain libertarian minded buddy who tends to go off in his writings.... guess what? Somebody other than me is probably reading what you write. So what if I and you aren't in any way associated with terrorism? By going around FISA, the admin has asserted its right to read MY emails anytime it feels like it. That is a clear cut invasion of privacy, and it's illegal under the constitution. Please, oh please, let the Supreme Court get at this.

sr said...

So if the Supreme Court does get involved-- what do you really think the odds are of them ruling against the administration (given the likely composition by the time that happens)?

And, btw, any interesting New Year's Eve plans? None for me, of course. I think I will take the 3 dogs (our 2 plus Blaze) and go to the 'Boro