Wednesday, December 21, 2005

The end of the world as we know it

Much is being made of the recent leak to the New York Times that the Bush administration authorized unwarranted (meaning "without-a-warrant" rather than "unnecessary") taps on international calls between certain individuals whose names or phone numbers had been learned through questioning of al Qaeda members or other al Qaeda-related intel. See here and here for two news reports on the story.

Out here in the blogosphere, there's a whole lot about the Fourth Amendment being thrown around. But let's review:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oaths or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I am not a lawyer, nor a Constitutional scholar. (These facts are patent.) But to the extent that it matters in a mere private citizen, I am a strict constructionist. Yet I have no beef with the phone taps, as far as the facts are currently known. Because:

[from Article II, Section 1:] Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Section 2 - Civilian Power over Military, Cabinet, Pardon Power, Appointments

The President shall be Commander in Chief of the Army and Navy of the United States...

...and we are at war, a condition that has in the past required the chief executive to suspend the writ of habeus corpus (Lincoln), to undertake massive secret projects with budgets disguised under other line items (Roosevelt), to intern US citizens (also Roosevelt), among other temporary infringements of the widest exercise of civil liberties. Key here is the temporary nature of such infringements, and it's inherent in our system: until a president disbands Congress and calls off general elections (yes, I do recall that some were claiming before the 2004 elections that Bush would pull a real October surprise and do exactly that - my goodness, you people, get a hold of yourselves), there is no statute or order that cannot be considered "temporary." And bear in mind the word "unreasonable" in the Fourth: is it "unreasonable" to assume that a person who has been receiving calls from known members of al Qaeda, a hostile foreign group bent on the destruction of the United States among others, may be connected to them somehow? If it's reasonable, strict interpretation of the Amendment would seem to allow that person's virtual "papers" to be searched. So everyone take a deep breath.

The difficult part is remembering that we are actually at war. I suspect it's always been harder for us to remember this fact than for, say, Europe - at least since the War of 1812, the last time we saw a hostile foreign army on our mainland. So many of us have no personal experience of a real, bloody war - the kind of war the Soviet Union waged against Afghans, the kind of war Saddam Hussein waged against Kuwait, the kind of war that tore Vietnam in two until we graciously allowed the bad guys to stitch it back together without benefit of anesthesia. So many of us forget that it's not just the forces of nature that can cost hundreds of thousands, even millions of lives. Thank God, we in the United States have not seen so bloody a war on our own soil since the 1860s, but lest we doubt that it's possible, take note of the horror of Darfur, where credible sources put the number dead at 300,000 or more. Because at this moment in history, the really deadly conflicts all seem to be taking place in the Third World or thereabouts, we may foolishly conclude that we're somehow more "civilized"; but bear in mind that it was not long ago that the Soviet Union was in the business of killing in the millions, and while Stalin may not have been "our kind of people," he was most assuredly not one of the dressed-up savages some of us in the enlightened West may wishfully see in Africa and the Middle East.

No, he was a real monster. Something that George W. Bush demonstrably is not.


Cobra said...

Merry Christmas to you Jamie, and the happiest of New Years!

Now, my friend...this Spy-gate issue with Bush is disturbing to me because it doesn't make sense. If the FISA courts overwhelmingly give authorization for these taps (only 4 rejects out of over 10,000-12,000), and can do so AFTER the tapping was done already, what possible reason in good faith would the Bush Adminstration have to go AROUND the court?
The cynnical answer would be because there was activity going on that would've been rejected, which means there needs to be an investigation.
The technology exists right now to peer into each and every one our lives, and I believe there must be safeguards as to its use.
Bush essentially saying "Trust me" is not a safeguard IMHO, nor is his claiming of "war powers" during an undeclared war.


Jamie said...

Cobra -

How nice to hear from you! I hope your Christmas was terrific, and all my best in 2006. I've been travelling; sorry so long.

My understanding of the administration's reasons for the "end run" around the FISA courts is that the FISA process focuses on the person for whom a warrant is to be issued (whether retrospectively or not) rather than a phone, for instance. The security challenge was to follow, initially, a person of interest, but (as we all now know) cellphones were and are a valuable tool for modern terrorists, and since they're portable, hard to trace, and cheap, they tend to get passed around. Let's say John Doe appears in a known al Qaeda member's cellphone contacts. FISA will issue a warrant for John Doe - but then John Doe, who has been in a sleeper cell for years and knows how this game is played, passes off his phone to Jane Roe. The pass-off might be detected by the NSA, but no warrant yet exists for Jane - so off to FISA again, to get a warrant for Jane. Jane, also an agent, passes the phone to Richard, um, Smith, and the NSA is able to follow the pass-off, again without a warrant -

Point being, FISA is not particularly well-suited to the kind of intelligence-gathering the current conflict requires. I've been trying to catch up on the issue today (family Christmas didn't lend itself to following the news), and so far I'm still coming up with no great cause for alarm, unless you're a staunch libertarian, which I'm not. It still appears from what I'm reading that this program, now pretty much useless, was judiciously applied, narrowly focused, and vetted by the AG.

I admit that I've pretty much taken it for granted that all US governments, and whatever foreign governments have the ability, track these kinds of data all the time, from everyone. Whether they follow what they detect would depend on its usefulness (and so far I'm far more inclined to trust the Bush administration on this point than, say, the Clinton administration, with its FBI shenanigans aimed only at cementing its own political position). If any government prosecutor starts to use these "ill-gotten" data in court, now, that's where I draw one very bright line.

Oh, P.S.: I'm fine with having an investigation. Maybe it'll result in some modern law.

As to the "undeclared war" - "declared war" is rather a term of art. Generally a nation knows when it's at war. (That's one thing that makes this conflict unusual: a whole swath of the population does not recognize that fact, somehow.) There's no requirement for an "official" declaration of war, only tradition. There's also no requirement that a war be "just" in the minds of all the people in order to take place - that's an Episcopalian conceit, at best. Combat will end in the Iraq theater under certain circumstances: we win (as defined by our leaving Iraq in trained and capable hands so that they're able to police themselves and have the will to do so), or we're required by the Iraqi government to leave (which could be because they lack the will to continue on the course they've started, or because they feel competent to handle it without us), or US public opinion on the war becomes sufficiently negative that the Bush administration decides to pull out (God forbid), or a new administration in 2008 enacts a new course of foreign policy. But it is a war. Just not a war with Iraq.