Spy if You Want
Kerry Howley | January 29, 2008, 1:15pm
Cato's Roger Pilon has a Wall Street Journal piece urging the Senate to disregard all the whining about civil liberties and pass surveillance authorization already. ("The clock is ticking.") Julian Sanchez lays into him line by line. A snippet:
It bears noting that Roger's approach to interpreting the scope of executive national security powers is precisely the opposite of the approach he takes to the rest of the Constitution. When he reads "commerce" in Article I, Section 8, man that means commerce—not manufacture, not consumption, not activity that affects commerce—nothing but the literal buying and selling of goods. At the blurry edges, at any point where the scope of the power is ambiguous, he wants a narrow reading and a constrained power. The volume of intrastate wheat production and consumption may in part determine the price of wheat on the national market, but it's not interstate commerce, so on Roger's view, Congress can't touch it.
On the other hand, because "intelligence is essential" to national security, "Commander in Chief of the Army and Navy of the United States" naturally entails the power to authorize surveillance of Americans' communications with (at least) persons abroad, subject to neither limitation nor, indeed, even scrutiny by the other branches.
In December, Sanchez argued that more is at stake than retroactive immunity. Much more reason on FISA available here.
UPDATE: Over at Cato's blog, my friend Tim Lee weighs in:
The dispute is over what safeguards are appropriate to ensure that the intelligence community’s surveillance activities here in the United States are limited to genuine foreign intelligence. Roger’s position appears to be that neither the courts nor Congress may place any restrictions on domestic surveillance activities that the president declares to be related to foreign intelligence gathering. But that’s not good enough. Without judicial oversight, there is no way to know if the executive branch is properly limiting its activities to spies and terrorists, or if they’ve begun to invade the privacy of petty criminals or even law-abiding individuals.
Warmongering Lunatic | January 29, 2008, 3:54pm | #
The fundamental problem with Tim Lee's response is the assumption that since oversight of the executive is
necessary, Congress has the power to grant the judiciary oversight powers.
It is a separation of powers violation to make a power of the executive dependent on the permission of another branch. Congress cannot, say, pass a law requiring that the President get a ruling from the Supreme Court declaring a law is unconstitutional before he may veto a bill, even if it were generally agreed such a check is necessary. Similarly,
if the executive has the power to engage in surveillance of foreign intelligence without a warrant under the Constitution itself, then it is quite hard to see how Congress has the power to require the executive to get a warrant to execute that power.
Accordingly, the place to make the argument is on the Fourth Amendment alone, without reference to any purported act of Congress.
This, of course, leaves us with the current problem that, under Olmstead v. United States (1928), wiretapping without a warrant is not a violation of the Fourth Amendment. This has been reversed by later courts in criminal matters and in matters of domestic intelligence surveillance, but the latter decision was clear it did
not apply in matters of foreign intelligence surveillance. So Olmstead arguably controls on matters of foreign intelligence surveillance, permitting warrantless surveillance.
But the place to fix this is by getting a change in the Fourth Amendment jurisprudence, or in the jurisprudence of Article II powers, or maybe a constitutional amendment, not by passing laws that are outside the scope of Congressional power.
TrickyVic | January 29, 2008, 4:02pm | #
"""This is really about bulk collection without specific targets."""
Right. Isn't that what the 4th amendment suppose to prevent, the bulk collection of anything without any specific target by the federal government?
"""3. You only use it for foreign Intel and terror....."""
Remember back when the P.A.T.R.I.O.T. act was being passed? The govenment claimed it would be used against the terrorist only. A year later the DOJ is running siminars on how to apply that act to regular law enforcement.
Remeber the Total Information Awareness program that Congress refused to fund. It went to another agency and is alive and well, and expanding.
For some reason I doubt you are so disconnected, or so stupid, that you would really believe the government can be taken at its word in this issue. They have NO intentions of using the surveilence technology for terror only. The logic could be as simple as why spend billions hunting a couple of dozen people when this technology has such great potential in prevent and solving all crime.
"""""and you don't make any of the info transferable to ordinary criminal investigation, absent direct threat to life or limb."""
Like who's smoking, or doing drugs? We already see that drugs can result in the lost life of LEOs, and can cause death. What about drunk driving. Who gets to decide what is considered loss of life, and how easy would it be to ammend it for the cause of death de jour?
Remember John, when LEO violates their own rules, little happens.
