Friday, August 18, 2006

Administration Surveillance Policy Fails First Legal Test

King Bush's, I mean President Bush's, secret and warrantless surveillance program has been ruled unconstitutional by a U.S. District Court. In my humble opinion, this is only a good thing as it will hopefully hold when the appeals are made by the administration. Ultimately, this will make it to the Supreme Court, where this decision may in fact be overturned now that it is stacked with a majority on the right, but time will tell. The District Court ruled a warrantless program violates free speech and privacy rights, which I realize will be attacked, but in my mind it is separation of powers that is most relevant.

A majority of Americans don't have a problem with wire-tapping suspected terrorists or their acquaintances, regardless if they are in or out of the country. The trouble is, just as the administration now has a doctrine of unilateral, first-strike, pre-emptive war (how has that turned out so far? Do you feel like the world is a safer place at the moment?), it has developed a similar view of its place in our government. Certainly in wartime the executive has stretched the boundaries stated in the Constitution in the name of national security, but in the end the reason for three branches is basic oversight and checks/balances. No one argues that there are national security concerns. No one argues that surveillance needs to be secret, because we don't want the bad guys to know when they are being tapped. But I think most will sleep better at night when there is a system in place where someone, such as the secret court already allowed under the 1978 FISA law, keeping an eye on the scope of the program. A Republican Congress has already come out and said it will work with the administration to modify FISA. What is the administration's issue at this point? What Americans want is simply a system for someone else to ensure there is a check to make sure it is only suspected terrorists and any associates within that network who are being monitored ( and keep that as secret as you want), and that flagrant abuses of executive power are not taking place on the general American public.


mark said...

It may be overturned simply because the district Judge, one of the most liberal appointees on the Federal bench, was in such a hurry to get to the " right" result that she ignored the plaintiffs lack of standing to initiate the case. As a result, I expect the appeals court to toss this pretty quickly.

The NSA program violates FISA, no question but in my view the Bush administraton has an excellent argument that FISA is unconstitutional as applied to war powers, if not peacetime.

The Consitution, in any event, does not apply to citizens of foreign states residing overseas simply because they *might* be handy sources for American journalists. Under this poorly-reasoned ruling, the NSA would literally have to stop monitoring Osama Bin Laden because an American reporter *might* feel constrained from contacting him because of the monitoring.

vonny said...

But the more specific issue is all the domestic surveillance that has been done, with, as far as we will know, no restrictions on what they are doing or who they are looking at. That is where I want some level of oversight, even if it is a secret court. I agree that for those who are foreign-born or live overseas is likely fair game, but for U.S. citizens in the country I want to see some oversight. Regardless, the administraton cannot be allowed to simply do anything and everything it wants, because who knows where it will ever end. It must work with Congress (and Congress needs to grow a backbone and live up to their responsibilities, too).

mark said...

Hi Von,

There needs to be a systemic check, I agree. Actually two levels - one inside the IC by the specialists who don't want to waste intel resources (which are scarce) monitoring non-targets and then one outside the IC.

The problem is that as a check, FISA is unsuitable because the emphasis is weighted toward legal abstractions, lawyerly process and missing the big picture rather than common sense. And this is a common sense question - are we targeting overseas bad guys here or spying on the general American public ?

Congressional oversight is ideal for the latter unfortunately neither the Congress nor the last five or six administrations have lived up to their responsibilities to make oversight work.