Whether it was overriding operational importance for the Bush administration to avoid going to the FISA court in these instances depends on the facts and the sensitivity of the source or method of collection. Since the Bush administration has not avoided the FISA court on other matters, it raises the question of whether these cases were of unquestionable sensitivity to national security and public safety or if the administration was simply making a political stand to preserve the presidency’s claim to possess ” inherent authority”. This question can only be answered by an investigation by the Intelligence Committees of the House and Senate.
I think it is safe to say that this move by the Bush administration was very unwise in at least the political and Boydian ” moral” senses, even if it was warranted by national security considerations or imminency of a threat.
The sharp partisan divisions that affect this country have sapped the government’s moral authority to command the respect and legitimacy that garners voluntary compliance, regardless of who might be in the Oval Office. George W. Bush is a viscerally polarizing president much like Richard Nixon, Abraham Lincoln or Bill Clinton. As such, half the country and most of the world believes, regardless of the reality, that Bush and Cheney are up to something nefarious, so they should take care not to feed that perception. Programs that smack of ” Big Brother” are rightly suspected by the public as being naturally prone to abuse even under the best of circumstances and the Bush administration simply does not have the presumption of goodwill needed to carry something like this off.
The American people want to hear that warrantless surveillance is an action the Federal government takes only in extremis to prevent acts of catastrophic terrorism and to prosecute the war against al Qaida- any appearance of lazy and unjustifiable” fishing expeditions” will – correctly in my view- raise a political firestorm. Absent the need to protect exceptionally delicate sources or methods or stop an imminent disaster, going to the FISA court should be the first choice because of the political and moral dividends of being able to point to a systemic check and balance on such an awesome power.
Like Caesar’s wife, the exercise of that kind of power must be above all reproach.
Document Links:
EXECUTIVE ORDER 12949: FOREIGN INTELLIGENCE PHYSICAL SEARCHES
EXERCISE OF CERTAIN AUTHORITY RESPECTING ELECTRONIC SURVEILLANCE
Intelligence Reform and Terrorism Prevention Act 2004: “Lone Wolf” Amendment to FISA, CRS Report
Recommended Reading on Warrantless Searches/War Powers From:
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vonny:
December 24th, 2005 at 9:02 am
mark,
Good, informative post with the additional links. There is an undeniable slippery slope wen it comes to activities like this, and the public can only hope that surveillance work is restricted to suspected terorists and their potential allies within our borders. The Bush claim up to now is that there was only limited surveillance of legitimate suspects. The breaking news, though, out of NYT is that it is much more widespread, with the NSA gathering telecommunications records from companies for btoh phone calls and Internet usage. If these claims are verified, the firestorm may be about to begin.
The trouble I have with all this is that the existing 1978 law allows for immediate surveillance to be ordered without a warrant, although you must get it retroactively within 72 hours so there is at least some level of oversight and legality. An NPR report two days ago stated that out of multiple thousands of times this law has been used, less than 10 instances have been denied a warrant. Was Bush worried that some of the surveillance was not justified?
P6:
December 24th, 2005 at 1:34 pm
It will turn out that when thry said they asked and were told they couldn’t get the system they wanted, they were talking about the TIA program.
Anonymous:
December 24th, 2005 at 1:52 pm
Nice post. Just to parrot back what I’ve read on other blogs: Bush would be considered criminally negliegent if he didn’t follow up on phone numbers that al Qaeda operatives were using. Since a customs agent can perform a warantless body cavity search of anyone coming back into the U.S. at their own discretion, it seems that intercepting international phone conversations without a warrant is not a big deal.
However, as you point out, it seems as if the Bush administration could have handled the whole thing differently.
Barnabus
mark:
December 24th, 2005 at 2:56 pm
Hi guys,
TIA was a good example of what cannot be permitted – this is the old ” Huston Plan” problem where the preexisting bureaucratic wish lists of IC and law enforcement agencies get presented to the public as a policy response to a contemporary threat.
I think that looking at aggregate global communication patterns across the electromagnetic spectrum and internet trunks- or ” chatter” – is constitutionally permisible as well as useful. When you hone in on specific American individuals you have to make the FISA decision.
Happy Holidays !
phil:
December 24th, 2005 at 7:39 pm
Excellent post Mark.
I have to admit that I’m having a hard time getting worked up over this. Not because I don’t have concern for civil liberties and potential abuse of power, I do, but because when I prioritize the various intrusions of government into our lives these just don’t rank very high.
The fact is that the IRS can just out of the blue decide they they want to come into your home or business and examine in minute detail every financial record you possess. No warrant required. This is a far greater violation of our rights than some warrantless eavesdropping on potential terrorist operatives who might be planning to commit mass murder.
And I’m less concerned about the FBI radiation snooping than I am about eminent domain abuse which is far more widespread and far more destructive.
I’m not saying that these aren’t worth looking into to ensure that the law is being followed, we are after all a nation of laws. But I think we need to keep our perspective as we do so.
Dan tdaxp:
December 25th, 2005 at 2:39 am
Mark,
Fantastic post. Great work. I’ll limit my comments to the moral warfare bits:
Moral warfare isn’t single track, but is focused on teh correlation of forces that effect a nation’s will. No frictional relationship can be looked at outside of its context.
To the extent this becomes a big thing, it will drag the anti-war party into a debate on homeland security, which it always loses. It will show that the Blame-Bush-firsters are the same people who blame-America-first in Iraq. If the bruhaha from this creates a scandal and hurts them politically, then the spy issue helps America’s war efforts.
mark:
December 25th, 2005 at 5:16 pm
Hey phil & Dan
Gracias ! Phil, your IRS example was better than my drunk driving one. Frankly, i want NEST sniffing for radiation but giving ports of entry and trucks at border crossings the once over with rad detectors should be prioritized. A-bombs are not small things – esp. crude ones – dirty bombs probably aren’t worth the effort.
I’m also concerned about a ship becoming a platform to launch a
” mini-bhopal” against say Boston.
Dan,
Dick Morris agress with you
collounsbury:
December 25th, 2005 at 6:33 pm
From those of us on narcotics, may I make plea for more readable formatting. Form is secondary to content, but it would be nice to have clearer formatting.
Anonymous:
December 25th, 2005 at 7:36 pm
Thanks, Mark. This is why I read ZenPundit.
Happy Holidays! (Or whatever greeting makes you happiest!)
CKR
mark:
December 26th, 2005 at 5:28 am
Merry christmas Col – since you are being subjected to the small town New Emgland version. Mmm, sip that cocoa ;o) ( I have friends in N.H. and it is very Norman Rockwell)
Could you be more specific about the formatting complaint ? It looks normal right now ( 11:25 pm CST)
Sometimes Zenpundit appears differently depending on the browser and Windows being run – the margin gets screwed up and the blogroll drops to the bottom. Or are you just commenting on today’s hurried & typographically sloppy post ?
mark:
December 26th, 2005 at 5:29 am
Merry Christmas & Happy Holidays to you Cheryl !!!
collounsbury:
December 28th, 2005 at 2:47 am
Leaving aside my drugs, it is a general note, your longer posts are harder to read.
But to give a critique requires more coherence than I can must right now.
Apologies about that.
mark:
December 28th, 2005 at 3:41 am
Hey Col,
Don’t trouble yorself. It was lengthy because the Constitutional issues of principle are separate from the political questions.
Or the common sense aspect that we don’t want the Feds to be too cavalier about eavesdropping – their should be some fear that going haywire could get them some jail time. I’m sympathetic to that general feeling even though I think it is obvious that somebody dialing up or emailing known AQ operatives needs to be checked out.