An Opinion For Wiretaps

By Justin Gardner | Related entries in The War On Terrorism

An interesting editorial in the NY Times. I don’t agree with it, but I think it’s important to consider what those who agree with the President are saying.

In an effort to control counterintelligence activities in the United States during the cold war, the surveillance act established a special court, known as the FISA court, with authority to issue wiretapping warrants. Instead of having to show that it has “probable cause” to believe criminal activity is taking place (which is required to obtain a warrant in an ordinary investigation), the government can get a warrant from the FISA court when there is probable cause to believe the target of surveillance is a foreign power or its agent.

Although the administration could have sought such warrants, it chose not to for good reasons. The procedures under the surveillance act are streamlined, but nevertheless involve a number of bureaucratic steps. Furthermore, the FISA court is not a rubber stamp and may well decline to issue warrants even when wartime necessity compels surveillance. More to the point, the surveillance act was designed for the intricate “spy versus spy” world of the cold war, where move and countermove could be counted in days and hours, rather than minutes and seconds. It was not drafted to deal with the collection of intelligence involving the enemy’s military operations in wartime, when information must be put to immediate use.

Indeed, it is highly doubtful whether individuals involved in a conflict have any “reasonable expectation of privacy” in their communications, which is the touchstone of protection under both the Fourth Amendment and the surveillance act itself – anymore than a tank commander has a reasonable expectation of privacy in his communications with his commanders on the battlefield. The same goes for noncombatants swept up in the hostilities.

The thing that I’m having a hard time with (and will always have a hard time with) is this idea that warrantless wiretapes essentially deems everybody in this country as “noncombatants swept up in the hostilities.” It’s as if, when we’re at war, all bets are off. But how can we justify continuous surveillance for decades on end. After all, we’ll never destroy the tactic. One can never destroy an idea. And we’ll most likely never be able to bring democracy to the countries who desire (and deserve) it most.

So when will this war end? Or is this a war without end? And if so, are we forever going to be wondering if our “reasonable expectation of privacy” will always be in question?


This entry was posted on Wednesday, December 28th, 2005 and is filed under The War On Terrorism. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

11 Responses to “An Opinion For Wiretaps”

  1. michael reynolds Says:

    I share your concern.
    If the president has inherent powers to do whatever he wishes in war, why do we have a FISA at all? Why do we have a Patriot Act? The president is asserting royal, not republican powers, and asserting that they persist indefinitely.

    He had plenty of leeway under FISA. If not, then he could have asked Congress to change the law, he chose not to. This is not about war or security or anything but a shallow, thoughtless, inadequate man drawn over the line into megalomania.

  2. ford4x4 Says:

    “Reasonable” is such a vague word (Actually, Unreasonable is what is in the 4th ammendment).

    If you are in no way associated with terrorism, and the govt has no reason to believe you are, then you are entitled to (and get) a reasonable expectation of privacy.

    Giving privacy to someone you suspect of planning terrorist acts against americans would be “unreasonable”. Due to the vague wording, it’s up to judges to determine whether or not a situation was reasonable or not

  3. Joshua Says:

    Between this and my comments to previous threads, I’m probably starting to sound like a broken record, but this bears repeating. Domestic surveillance would be a controversial measure in any war, but as Justin alluded to in his post, the debate is complicated even further by the real possibility that this war could last much longer than even the Cold War.

    If the President’s power to authorize this surveillance is ultimately upheld, the upshot is that not just George W. Bush, but all of his successors for the foreseeable future, regardless of temperament or political persuasion, will presume to have that power. Furthermore, as the war drags on and becomes the new “normal” state of the nation, it will naturally become harder and harder for everyone – the sitting President, Congress, citizens, maybe even the courts – to distinguish Presidential war powers from Presidential powers in conducting the nation’s more run-of-the-mill business. Among other things, that means it’s just a matter of time and the wrong circumstances before one of those future Presidents will see fit to apply it well beyond the scope of the war.

    That to me is the strongest argument against this policy. Even if you trust the Bush administration to do the right thing with it, that doesn’t mean you can trust everyone else who holds the Oval Office after him.

  4. Denise Best Says:

    Good point ford on the distinction of unreasonable in the 4th Amendment – it is a matter of interpretation.

    There would appear to be an unreasonable amount of fear being demonstrated by folks regarding the type of surveillance being discussed i.e. communication and demonstrated association with elements of terrorism.

  5. Jeff Says:

    Ford,

    If the government is able to give any kind of support for their belief that someone is a terrorist, a court will find that this expectation of privacy has been outweighed, and will permit a wiretap.

    How can we know that someone is a terrorist (and thus not entitled to an expectation of privacy) if the goverment cannot even offer up a shread of evidence to a court that that person is a terrorist?

  6. michael reynolds Says:

    Denise:
    We cannot rely on the executive branch alone to decide who is and who is not a potential terrorist. If the president is above the law and not subject to review then we may have no way of discovering whether his judgment is sound or not, and, if we do discover that his judgment is unsound, no way to stop him but by waiting till the next election.

    I am appalled by the cavalier attitude many Americans are showing toward our system of checks and balances and our system of laws. Do you not realize that Richard Nixon tried to justify his crimes by crying “national security?” Do you not realize that in just about every case where a Democracy has slid into tyranny the government has begun by crying “national security?”

    If we abandon the rule of law and acquiesce in unchecked and uncheckable presidential power every time we have a war or a crisis we will soon find ourselves in far worse trouble than Al Qaeda can deliver. We are doing Bin Laden’s work for him. He is not capable of seriously damaging our system — but we, in a panic, are doing the job ourselves. If we do not have laws, if we do not have checks on executive power, we have no protection whatsoever from abuse.

    This is the United States, for Christ’s sake.

  7. Rachel Says:

    I would really like to thank Justin for pointing out how the administration’s position views everyone in the country as “noncombatants” rather than as “citizens with rights”, including the right to complain when our privacy is infringed or when the government goes too far. This is what really scared me about the original editorial.

  8. Justin Gardner Says:

    There would appear to be an unreasonable amount of fear being demonstrated by folks regarding the type of surveillance being discussed i.e. communication and demonstrated association with elements of terrorism.

    Denise, I’m sorry but I think you’re coming at this from a pretty frightened place yourself, otherwise you’d probably never agree to having this level of snooping into our lives.

    And yes, I mean OUR lives. The government has been monitoring the communications of peace activists, so they aren’t just using these powers to fight terrorism. And if that’s the case, then they can use these powers to justify the monitoring of anybody’s communications at any time. I don’t want my government to have that kind of authority, especially when the outcome of said surveillance is murky at best and completely fruitless at worst.

  9. Chris Says:

    Considering the long history of the government engaging in unlawful surveillance of groups with which it disagrees, it’s more than a little unreasonable to assume that the government will only wiretap those who are clearly a threat to the country. Sorry, but the government abdicated the right to play Father Knows Best a long time ago.

  10. Joe Stephens Says:

    The FISA law that set up the warrent procedure to which comentators are referring also set up a court of review (United States Foreign Intelligence Surveillance Court of Review) which on November 18, 2002 (http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html) said that the President has inherent constitutional authority to conduct warrentless surveillance. In section III of the decision they said:

    “The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”

    In their conclusion the court restated that authority by saying: “Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close.” Those who rant against the president’s actions are in disagreement with the very court that rules on the provisions of the FISA law.

    Prior to 2002 four district courts of appeal upheld the President’s inherent authority to conduct warrentless surveillance for foreign intelligence purposes (5th, 3rd, 9th and 4th Circuits, in cases decided in 1970, 1974, 1977 and 1980). In 1972 the US Supreme Court (Keith)specifically declined to limit the the President’s authority in this area.

    The Congress cannot restrict the President’s constitutionally inherent authority. Case law confirms his authority in these instances. It will remain his authority until the Supreme court rules that he does not have that authority.

  11. John Says:

    I wonder if the righties would feel the same about abandoning civil liberties in other regards. Take Oklahoma City for example. Domestic Terrorism, White people (Gun toting white people). Oklahoma “could” have possibly been avoided if there was a registry of gun owners so the government could monitor who is stock piling arms, and keep an eye on them. Not limiting ownership, just registering ownership. Is that OK with all the people who say it’s alright to eaves drop unchecked, internationally or nationally, on our conversations. After all, if you are using your fire arm in a legal way you have nothing to hide. Civil Liberties are greater than just conversations outside the united states.

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