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Warrantless Wiretaps

I've been asked to comment on the current controversy over no-warrant wiretaps used to intercept communications between suspected foreign terrorists and people within the United States.

I'm not able to reach any clear conclusions about the matter. I don't have enough time right now to study it in the detail it would require. But I won't let my non-legal-scholar status get in the way of a healthy rant. :) I have some useful links, too.

Let's start with President Bush's speech:

… consistent with U.S. law and the Constitution, I authorized the interception of international communications of people with known links to al Qaeda and related terrorist organizations. This program is carefully reviewed approximately every 45 days to ensure it is being used properly. Leaders in the United States Congress have been briefed more than a dozen times on this program. And it has been effective in disrupting the enemy, while safeguarding our civil liberties.

Bush vaguely invoked Article II of the Constitution as the basis for his power to authorize these wiretaps. I require a little more elaboration before I can accept that kind of reasoning. Sure he's Commander in Chief, and these wiretaps are related to military operations, but it's manifestly untrue that the President has the power to do whatever he wants in the context of war. How do we reason that the President has this specific power?

The Foreign Intelligence Surveillance Act is the law that generally covers this area. From what I've learned, the Administration's argument is that this law doesn't apply in these cases because the intercepts take place outside the United States, i.e. they are performed by foreign intelligence services on our behalf. Even accepting arguendo that this is true following the letter of the law, I think it's clear that it violates the spirit of the law.

There's a large document from the Foreign Intelligence Surveillance Court of Review that I'm lead to believe is relevant. (I can't wade through 50 pages of legalese for this — sorry.)

At about this point I rush over to the Volokh Conspiracy to see what they've written about it, and yes, it's a long one. I really have nothing to add on the legal angle. I throw up my hands. I don't know enough to comment.

So let's talk about politics. I think it's very interesting that Congress was well-informed about this program and was therefore in a position to think about all these legal issues for quite some time. Why didn't they act? They could have said "no, Mr. President" at any time and forced a legal showdown. Why didn't they?

Incompetence is the default answer. Perhaps they didn't realize there was a problem.

Another is that Congress thought it would lose on the merits — that the President's Article II power would trump the FISA legislation. In that case it's not even important to amend FISA, because the relevant portions are just inkblots anyway. (For the sake of people like myself who would like to be able to read laws and believe they mean what they say, some kind of automatic judicial review would be swell. But somehow I doubt lawyer-validators would find all the corner cases…)

A more sinister possibility is that Congress was just waiting for a good time to spring an embarrassing political trap. But I don't think this is very likely because I don't think they could've held back for so long.

The worst possibility is that what the Administration has done really is illegal, and that Congress knew all along but didn't care. They "did the right thing" as far as prosecuting the war is concerned, and to hell with whatever laws might be in the way. I fear this the most because it would mean two branches of government believe we're ruled by men, not by law.

I don't like this controversy. The conflict between branches of government could have been eliminated through a little appropriate legislation specifically authorizing this kind of surveillance. Or, if Congress really means to prohibit it, they have been horribly negligent for several years by quietly allowing it to continue even as they've been aware of it occurring.

Congress should either have authorized it or fought against it. It was wrong of them to do nothing and let the controversy fester.

Tiny Island