The Constitution got a bit of good news today as a judge invalidated W’s illegal wiretapping operation. This isn’t the end of the story, I suspect, as the decision is already under appeal.
Bill Frist says:
“Terrorists are the real threat to our constitutional and democratic freedoms, not the law enforcement and intelligence tools used to keep America safe,” Frist said in a statement.”We need to strengthen, not weaken, our ability to foil terrorist plots before they can do us harm.”
That is patently true but just as obviously irrelevant. Get a warrant, G-men. It’s not going to kill you, although it may kill me, if you fail to present probably cause and get a tap authorized. Nobody’s saying we don’t want you to record Osama’s pals’ calls, but there’s a proper way to do it.
Republican Congressman Pete Hoekstra says:
“It is disappointing that a judge would take it upon herself to disarm America during a time of war…”
But what is war, Pete, and are we actually in one? Certainly our troops are. But is the nation really at war? < 1% of us are, give or take, actively engaged with an enemy - but what about the rest? Is this state of affairs really significantly different than any given 4 year span in this century? Or is it more like George Orwell laid it out in 1984 when he described as background the subtle need of governments to create conflict to ensure that they’re needed to resolve the crisises they create?
Well, of course I disagree with you that it is illegal. Heck a good reading of the FISA law even states out that agents of Foreign powers are exempted from any warrant requirements as long as Congress is notified (which they were). Not to mention that multiple courts (to include FISA) have ruled that it is within the purview of the President to perform warrantless searches in cases of National Security (look at Aldrich Ames as a good example of that…or go read Re: Sealed Case). The conclusion of the FISA court states (in part)
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. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable.
The key here is that the Executive is engaged in issues regarding National Security. Its not a blanket covering for anything the Executive wants to do, but it allows the Executive to do what is necessary under the Article II powers grated him in the Constitution. In fact, Congress cannot take away his Article II powers (just as he cannot take away their Article I powers). In theory if Congress really wanted to stop the Executive from doing something granted to him in Article II they could withhold funding but that is about it.
Government is a balancing act of trying to keep the threats that we know of, the threats that we can anticipate, and the threats that we cannot (or do not) anticipate at bay. Much is said of armies “fighting the last war”, and in some ways we are still doing that. We certainly were doing that on Sept 10, 2001…then we woke up for a while and decided to do something about the new world. Unfortunately our society is too tied to short term solutions as opposed to long term ones…and even after 9/11 public opinion would not have allowed for the massive effort required to address this problem as we did in 1941.
I think what the court said in this case was that what constitutes an Article II power is not solely at the discretion of the Executive Branch. That’s something that should be obvious to everyone – the question is where to draw the line.
As far as balancing of threats, the threat of an overly invasive government is a legitimate concern and has been considered such from the beginning of this country. Sadly, the current EB gives this concern a very low priority.