Infinite MonkeysIt turns out that Nixon wasn't wrong, just premature. If the president does it -- or asks you to do it -- it's not illegal. Or it won't be after Congress gives you a free pass.
Still, I can't get too worked up about the new FISA "compromise" bill, which essentially gives immunity to the telecom companies for complying with and assisting the Bush Administration's warrantless wiretapping program. For one thing, civil libertarians are going after the telecom companies because they can't go after the real culprits, who are all in the Bush Administration -- it's like executing the guy who mailed in Al Capone's taxes for him. Maybe it's satisfying, but it doesn't do anything to actually solve the problem of abused executive power.
Plus, part of me feels sympathetic. If you're the head of a telecom company and the president asks you -- after 9/11 -- for help, wouldn't you be a little inclined to give it? Don't get me wrong: Dahlia Lithwick is entirely correct (in a different but very related context) that we'll have no law if people can merely violate the law because of "good intentions." But again, I think the Bush Administration is the real culprit here; the telecoms are a sideshow at best.
Still, I think Nancy Pelosi is being a bit naive about all this:
Perhaps the most important concession that Democratic leaders claimed was an affirmation that the intelligence restrictions were the “exclusive” means for the executive branch to conduct wiretapping operations in terrorism and espionage cases. Speaker Nancy Pelosi had insisted on that element, and Democratic staff members asserted that the language would prevent Mr. Bush, or any future president, from circumventing the law. The proposal asserts “that the law is the exclusive authority and not the whim of the president of the United States,” Ms. Pelosi said.Well, great. But isn't that what we thought about the 1978 FISA law before the president decided to break it? And doesn't the new FISA bill more or less ensure that nobody will suffer consequences for breaking the old FISA law? At this point, why would any president take it seriously as a restraint on his actions?
I'm really looking forward to President Bush's "signing statement" on this bill. I'm almost certain there will be one, and that civil libertarians won't like it very much at all.
Nixon would be jealous.
Posted by Joel at June 20, 2008 06:04 AMI'm reluctant to go after you, Joel, in a post where you admit to being "sympathetic" to my position and not all that "worked up." Still ...
Bush is not like Nixon, thinking that if he does it, it must be legal. He's thinking: Every other president (and court) recognized this constitutional power, so what'st the problem? Answer: Bush Derangement Syndrome. In other words, a propensity for liberals to think, "If Bush does it, it must be illegal."
Every president since FISA was signed by Jimmy Carter has made it clear that the law does not interfere with the president's constitutional responsibility to conduct intelligence on foreign agents -- even those who happen to be physically in the United States. Know who made that clear first? Jimmy Carter's own attorney general. The Clinton administration said the same thing in 1994.
Oh, and Carter also created the quite the test case when he spied on two men, Truong Dinh Hung and Ronald Louis Humphrey, without getting a warrant. Though the spying started before FISA was enacted, Carter didn't feel the need to get one later when the law was in effect (and to my knowledge, you don't get to "grandfather" in activity that a law is designed to proscribe). The U.S. Court of Appeals for the 4th Circuit unanimously rejected the men's appeal that it violated their civil and constitutional rights.
It is simply nonsense to say the Bush administration is doing something uniquely horrible and unquestionably illegal.
Posted by: Dr. Zaius at June 20, 2008 11:37 AMIt's not UNIQUELY horrible, but it IS horrible.
I'm not inclined to let the Telcos off the hook. First, they COULD have said "no." Qwest did. Second, without the threat of financial consequences, what's going to influence them to do the right thing next time?
I agree that Telco complicity does not take ANY of the blame away from the Bush Administration, but it should not be trivialized. When the semi-private operators of our communications infrastructure become, effectively, agents of the state, what hope do we have for future privacy protection?
Posted by: Monkey RobbL at June 20, 2008 09:31 PMAlso, as a side note: Why is the legal prism for evaluating government actions such a centerpiece of public debate? Why doesn't anyone say, "I don't care if it's legal - it's wrong, and it needs to stop," anymore? Remember when Al Gore made that whole "no controlling legal authority" argument to weasel out of responsibility for making fund raising calls from his government office? I seem to remember a certain self-righteous right-wing radio personality having fits about that.
/rant
Posted by: Monkey RobbL at June 20, 2008 09:38 PMTwo things, Robbb:
How else are we supposed to gain communications intelligence on the terrorists networks plotting to kill us? A lot of this communication is physically from, say, Pakistan to Malaysia. But since the United States leads the world in global communications, my understanding is that a bunch of those calls are actually routed through the United States. It's the "right thing" for Qwest to tell our spy agencies to buzz off? The scenario I posit in this paragraph is precisely why Congress needed to take the FISA out of the 1970s and tweak it for the modern world.
Secondly, there is a huge gulf between "no controlling legal authority" and "this is a power the Constitution gives the president."
Posted by: Dr. Zaius at June 21, 2008 08:43 AM>It's the "right thing" for Qwest to tell our spy agencies to buzz off?
If they don't have a warrant? Yes. Yes it is. People making phone calls have a legitimate presumption of privacy. In the absence of oversight from another branch of the government and the requirement to provide evidence that they have a reasonable suspicion of wrongdoing, that expectation should be protected.
Without defending the FISA court itself, the Bush Administration should have AT LEAST followed those procedures before engaging in domestic surveillance. They are reasonable standards that would not have negatively impacted the surveillance in the least. FISA almost NEVER denies a warrant request.
And a legal prism is a legal prism. Spying on your own citizens is wrong, whether the constitution lets you get away with it or not. Also: Lying about spying on your own citizens is also wrong. When even John Ashcroft can figure out that it's wrong and refuse to go along with it, you've hit a pretty low point.
Posted by: Monkey RobbL at June 21, 2008 07:05 PMWe can go round and round on this forever, Robb (sorry for the three-be post before). But the executive branch, for the purpose of collecting foreign intelligence, does not need a warrant.
In short, the FISA law was an overreaction. A Nixon reflex law that was never intended to apply to genuine national security intelligence gathering.
Posted by: Dr. Zaius at June 21, 2008 08:34 PM