Yeah, they're spying on you, so what's news?

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As has now been widely reported, after 9/11, the Bush Administration authorized NSA to conduct warrantless wiretaps of people inside the US, including American citizens. It's also been widely observed that the mechanism of FISA warrants already gave the government extremely broad latitude to conduct wiretaps secretly and subject to only extremely compliant oversight.

This latter fact is usually mentioned as evidence that the Administration is out of control--if they can't even live with this minimal oversight, they must want to do something truly awful. I'm not sure I disagree with this, but on the other hand, many of these same people--myself included--have long complained about how lax the FISA process is and how it's basically a sham check on the power of law enforcement to conduct searches. If you feel that way, then it seems to me that you it doesn't make much of a practical difference that the government decided to dispense with the fig leaf of oversight. Yes, it's true that they broke the law, but if the law was ineffective anyway, I'm not sure that I much care.

On the third hand, of course, this renders the Bush Administration's claim that publicizing this information somehow harms national security particularly silly. If it was already public information that they had near-unfettered discretion to conduct wiretaps, how does it help the terrorists to know that they were actually exercising double-plus-unfettered discretion?

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kelly blue book from kelly blue book on January 30, 2006 2:55 AM

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The practical difference, as Josh Marshall ably points out, is this:

Setting aside all the particulars noted below about the NSA wiretapping story, the most dangerous aspect of this case is the legal theory on which the president was reportedly acting.


By that reasoning the president must also be empowered to override the new law banning the use of torture, thus making the McCain Amendment truly a meaningless piece of paper.

Brian's analysis is spot on. The theory that being "Commander in Chief" puts you above the law went out with the divine right of kings in common law countries, and the attempt to bring it back on the grounds of "Homeland Defense" is shocking, unnecessary, and arrogant in the extreme.

Immediately post 9-11, Bush could have gotten literally any anti-terror measure through the Congress. The idea that he needed to something contrary to the law ignores the extraordinary ability he's had to get changes to the law. The only justification for doing it this way is that the office of the President is above the law and may extend that priviledge to anyone it chooses.

No matter what your politics, the rule of law is a cornerstone for good government, as it protects you form the arbitrary abuse of power. Ignoring it is, fundamentaly, abuse of power.

I agree. Consider it as a change in signalling rather than a change in practical outcome. It makes me worry more about how far they're willing to go to intrude on freedom for security reasons--or how far they've gone and we don't know about yet.

Sure, but we already knew from the Gonzales torture memo that the Bush administration believed that national security allowed it to do all sorts of things that would otherwise be illegal. Again, what's the new information here?

That even the most TRIVIAL of oversight (72 hours AFTER getting a rubber stamp from the FISA court) is too much. Even the most token law restricting their power will be ignored.

There are at least two other "not new information" aspect of this story:

1) Members of Congress, including Senator Rockefeller (D-W Va), were informed of this action when it began--in late 2001 or early 2002.

2) This story has been sat on for at least a year while the book was being written. (The book is due any day now.)

So this was/is part of "literally any anti-terror measure through the Congress".


Now I refered to the FISA court as an "American Star Chamber" when I first heard of it, and my views have not substantially changed. HOWEVER, let's try to use the appropriate metric. The "Patriot" act was not a list of emergency powers carefully crafted by Congress to deal with the barbarism being waged by a stateless organization attempting to overthrow our civilization. It was a conglomeration of measures that various law enforcement agencies had been pushing for years--for a decade in some cases. Congressmen who had properly resisted these requests, which for the most part came from the buracracy--not the admistration per se, for years were suddenly in an untenable situtation. I see this matter as more of the same.

When we examine the particular issue, I think that it would be useful to see what measures were taken regarding the survielence of potential enemy agents during WWII. I don't know what they were, but the historical comparison should be useful.


The timing of this bit of (rather stale) news is blatently timed to injure the President politically, in particular by wiping out the news coverage of the election in Iraq. These people could have raised a stink any time in the last four years. They have chosen to do so now. Their timing at least makes their "concern" highly suspect.

In addition to the information about the wiretaps and the legal theory, this news also raises very interesting questions about motives. I can imagine at least two ways in which this might indicate something new and very worrying:

Let us posit that the rubber stamp FISC would permit almost any wiretap, and grant retroactive emergency warrants. Why not work through it?

I see two possibilities:

1) The administration is actively exploring the limits of its extra-legal power. This goes beyond theory to practice. The news here is robust application of the despotic principles the Attorney General and others have enunciated in the form of active arrogation of power.

2) The administration was or is preparing for truly scandalous wiretaps (imagine wiretaps of members of Congress, opposition politicians, leaders of anti-war groups, etc.) for which it fears the FISC might deny warrants. It's working now to set up an SOP that will mask this later outrage by burying such wiretaps amid more normal ones unreviewed by anyone outside the administration.

Think of it as marking to market the probability of various privacy violations or intended future privacy violation. The NSA order causes Bayesian updating, pushing those probabilities even closer towards 1.

The timing seems much more tied in to the push to renew the Patriot Act to me, not the elections in Iraq.

I think Brian is right about the timing (although the release of the book does smell like three-day fish).

The other aspect of this is the question "If they admit to this, and defend it, what are they doing that is really secret?".

It's like knowing there are piles of unreleased photos from Abu Ghraib; the originals includes scenes like this, and we know we were "protected" from darker and more disturbing images. If the President's assertion of power includes the ability to trump any law on the books, because he as "Commander in Chief" believes it to be necessary, there is no limit to his power. What else might this administration have done?

The short answer is we do not know. The truth is that many people, myself included, now believe them to be capable of anything. If they will trumpet murder and hold torture up as a right, at what would they quail?

And a link to Condi's recent speech on the rule of law to finish out the brass balls aspect of all of this.

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