December 19, 2005

More on the NSA/eavesdropping flap

The blogosphere, overall and local, is still buzzing about the "revelation" about how President Bush gave the NSA (National Security Agency) the go-ahead to listen in on phone calls and monitor e-mails without getting a warrant (among other things).

Over at Down With Absolutes, the debate rages, with Delaware Watch's Dana Garrett offering that the 4th Amendment "is the only fact that matters." Well sure, it matters, but the question is whether it's "absolute" (to use Mike M.'s site's terminology). As a commentor over at Cold Fury notes,

Much to the chagrin of the ACLU, long standing Constitutional jurisprudence holds that the government is not always and everywhere required to obtain a warrant prior to conducting a search, seizure, or surveillance. Several exceptions exist. See, e.g., Wikipedia's 4th Amendment entry. When looking at the basis for these exceptions—primarily, the individual’s expectation of privacy as weighed against the public’s interest in safety—the monitoring of international phone calls and emails reasonably believed to be linked to terrorist activity is certainly a constitutionally permissible exception to the warrant requirement.

In addition, Mark "The Great One" Levin makes note of the ECHELON program:

Under the ECHELON program, the NSA and certain foreign intelligence agencies throw an extremely wide net over virtually all electronic communications world-wide. There are no warrants. No probable cause requirements. No FISA court. And information is intercepted that is communicated solely between U.S. citizens within the U.S., which may not be the purpose of the program but, nonetheless, is a consequence of the program. ECHELON has been around for some time. The media and members of Congress didn't accuse Bill Clinton, under whose administration the program apparently moved into full swing, of "domestic spying" or violating the Constitution. Is ECHELON constitutional? Congress hasn't defunded it. So, it seems to me this entire current debate, unleashed by the New York Times last week, about expanding the NSA's eavesdropping authority (exactly what is expanded and how, we still aren't certain) is, well, disconnected from reality.

Elsewhere, the Scourge of the DE blogosphere refuses to answer a simple question: if "great American presidential icons" violated the Constitution much more severely (Lincoln himself declaring habeas corpus suspended unilaterally, and FDR rounding up Japanese-Americans into internment camps), how is merely monitoring communications (with some sort of foreign connection) in a [new type of] war some "egregious" violation of said Constitution? For the Scourge, the answer is simple: because George Bush is doing it, that's why. He also conveniently uses the excellent vision of hindsight to declare Lincoln's and FDR's actions as "necessary."

Maybe when a nuke goes off in Battery Park he'll change his mind. Scratch that -- he'll be too busy screaming "impeachment" for failing to thwart the terrorists who set off the bomb.

Posted by Hube at December 19, 2005 03:55 PM | TrackBack

Comments  (We reserve the right to edit and/or delete any comments. If your comment is blocked or won't post, e-mail us and we'll post it for you.)

Hube, I think you're right about people opposing things, just because Bush proposes them. I was talking to a cowarker about Social Security last week and he mentioned that Joe Biden argued years ago that we should give people above a certain age guaranteed benefits, while allowing those below that age to invest their money as they saw fit. I pointed out to him that this was part of Bush's plan for Social Security. He responded, "Well, I don't want that guy touching anything."

They disagree with him even when he agrees with them.

Posted by: Paul Smith at December 19, 2005 04:30 PM

You are going to be sorry to be on the wrong side of this one bro. But thanks for the link.

Posted by: jason at December 19, 2005 04:57 PM

We sure appreciate how clairvoyant you are, scourge.

Posted by: Hube at December 19, 2005 07:25 PM

What most people don't realize is that NSA has operational control over strategic military intelligence assets, not just satellites or radio towers with "NSA" stamped on them. Soldiers in listening stations and airmen or sailors in surveillance planes (like the one the Red Chinese playfully forced down) get their paychecks from their respective services, but what they listen to is controlled by the Director of the NSA, or "Daddy Dirnsa" as we called him.

Okay, I can't be too specific here, or I'd have to kill you all and myself as well. The Puzzle Palace is a really interesting book, and that's all I have to say about that. Seriously, at no point in my training or experience was I ever told what to do if I came across someone in the US chatting with someone in the target country, and nobody ever showed me a warrant. I wonder if the Posse Comitatus Act would apply here? Anyway, we got Pablo Escobar by listening to his phone.

Posted by: G Rex at December 20, 2005 12:47 PM

Paul, this is why Scourge is against it!

Posted by: MarkLevinFan at December 20, 2005 02:21 PM

"if "great American presidential icons" violated the Constitution much more severely (Lincoln himself declaring habeas corpus suspended unilaterally, and FDR rounding up Japanese-Americans into internment camps), how is merely monitoring communications (with some sort of foreign connection) in a [new type of] war some "egregious" violation of said Constitution?"

I realize this is a question asked of Jason, but if I were to answer, I would say that we have fewer icons than we think. Interning the Japanese was a monstrous act as far as I am concerned. When Lincoln suspended habeas corpus, Supreme Court Justice Tawney overturned it claiming that Lincoln was worse than any despotic king in England had been. Lincoln’s response? He simply disregarded the Court’s ruling and even came close to having Justice Tawney himself arrested. This description of the events is instructive and it also shows that recently the Supreme Court reaffirmed Tawney’s decision:

The clash between Taney and the various generals who essentially represented Lincoln is a good example of the conflict between idealism and pragmatism that characterizes much of the debate on this topic. Taney went by the lawbooks, and understandably raged against Lincoln spontaneously and unconstitutionally granting himself easily abused powers. Taney showed beyond the shadow of a doubt that Lincoln's actions were entirely contrary to written law. The real question, which Taney also addressed, was whether or not it was practically permissible for a President to take such actions. He argued that it was not, angrily observing that none of the Kings of England exercised such power, and that therefore in this respect Lincoln was proving more monarchical and despotic than any actual English monarch. He closed his argumentation with the following fiery language (Merryman):

These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.

Lincoln, citing Andrew Jackson before him, simply disregarded the ruling. Relying upon an 1880's manuscript from Lincoln's close friend Ward Hill Lamon, some scholars have contended that the President authorized then quickly aborted an arrest warrant against Taney in retaliation for the Merryman ruling. The manuscript and evidence are a relatively new discovery in the historical literature and the story's authenticity is hotly contested and controversial (see the Taney Arrest Warrant controversy).

Lincoln responded to the Merryman decision by asking his Attorney General Edward Bates for an opinion supporting his suspension. William Rehnquist characterized the argument as one that is convincing only to a "true believer." It nevertheless formed the basis for Lincoln's July 4 speech to Congress in which he rhetorically asked "Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" Lincoln subsequently expanded the zone within which the writ was suspended. (Rehnquist) After reconvening on July 4th Congress rejected a bill favored by Lincoln to sanction his suspensions. Between 1861 and 1863 several additional federal district and circuit court rulings affirmed Taney's opinion. Lincoln nevertheless continued making unauthorized suspensions for another two years until the Habeas Corpus Act of March 3, 1863 formally suspended the writ for him.

The Merryman decision is still among the best known Civil War-era court cases and also one of Taney's most famous opinions. Its legal argument holding that Congress alone may suspend the writ is noted for reiterating the dicta opinon of John Marshall and the court (4-2) in Ex Parte Bollman (1807) and was recently restated by the Supreme Court in Hamdi v. Rumsfeld (2004).

Also, the constitution couldn’t be more clear. Only the Congress has the right to suspend Habeas Corpus:

Section 9 Limits on Congress: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Posted by: Dana Garrett at December 20, 2005 04:47 PM

How exactly did Congress function during the Civil War, what with close to half its members not present? Mr. President, I suggest the absence of a quorum.

Seriously, I know all the battle history of the war, but how did the Union government conduct itself with only two and a half branches of government? Seems to me that all bets are off except for the checks and balances between executive and judiciary. Lincoln was right to use military tribunals, advocating that Johnny Reb was less than a full prisoner of war; more like an enemy combatant or irregular partisan. Safety required it.

Posted by: G Rex at December 20, 2005 05:31 PM

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