What is the Real Question with the NSA Wiretaps?
Garry,
In our last debate, we seem to disagree on whether or not the President is targeting "American persons" in the NSA Spying program. Troung and some of the other case law makes it clear that foreign surveillance without a warrant is fine; however, the FISA Court, as you have admitted, is still required for domestic wiretaps.
It seems to me that we are debating the wrong thing. I agree that statute allows for warrantless foreign surveillance. I think that it is ludicrous to suggest that we get a warrant to spy on someone outside of this country. What we disagree on is whether or not the government is indeed spying on "American persons." Is that a fair assessment of our debate?
My question, then, is this:
If we discover through hearings or investigation that "American persons" are the targets of warrantless electronic surveillance by the NSA and the Executive Branch, would you change your position on whether or not the President broke the law?
The reason I am posting this on the front page is that I think people on opposite sides of this debate are comparing apples and oranges. The question seems simple: if American persons are the target, the President has broken the law. If they are not, then what the President is doing is legal. Am I right?
Just a thought,
Jeff
GARRY RESPONDS: I see from the comments that my friends Jeff & Alex have had a busy weekend! In response to Jeff's question: yes, if persons within the US (they need not be American citizens) were a) the specific target of a wiretap, and b) had wholly domestic communications intercepted after being so targeted, then that could be a Fourth Amendment violation, should the courts deem such surveillance to be "unreasonable". If so, then let the heads roll (in the metaphorical, not Islamic, sense).
Whether it would represent a violation of FISA is problematic - the statute has yet to be fully tested to determine if it is an unconstitutional encroachment on executive powers. Perhaps this will play out in the suit that the ACLU brought against the NSA last month, if the district court in Michigan allows it to proceed. If it is determined that there have been violations of FISA, the statute provides for criminal penalities of "a fine of not more than $10,000 or imprisonment for not more than five years, or both".
Garry,
Why the caveat of letter "b" above? Why, if American persons are the target and their calls are intercepted without a warrant, is that not enough to say statute was violated?
Jeff
Jeff -
Because existing Fourth Amendment case law clearly defines the executive's authority only regarding warrantless searches within the United States (and even then such searches could be legal if they meet the "reasonable" standard in the eyes of the court). But when it comes to warrantless surveillance of communications involving at least one party outside of the U.S., there has been no case before SCOTUS to clarify matters - however, the lower courts have time and again shown deference to the executive's inherent powers in this area.
-G.
In our last debate, we seem to disagree on whether or not the President is targeting "American persons" in the NSA Spying program. Troung and some of the other case law makes it clear that foreign surveillance without a warrant is fine; however, the FISA Court, as you have admitted, is still required for domestic wiretaps.
It seems to me that we are debating the wrong thing. I agree that statute allows for warrantless foreign surveillance. I think that it is ludicrous to suggest that we get a warrant to spy on someone outside of this country. What we disagree on is whether or not the government is indeed spying on "American persons." Is that a fair assessment of our debate?
My question, then, is this:
If we discover through hearings or investigation that "American persons" are the targets of warrantless electronic surveillance by the NSA and the Executive Branch, would you change your position on whether or not the President broke the law?
The reason I am posting this on the front page is that I think people on opposite sides of this debate are comparing apples and oranges. The question seems simple: if American persons are the target, the President has broken the law. If they are not, then what the President is doing is legal. Am I right?
Just a thought,
Jeff
GARRY RESPONDS: I see from the comments that my friends Jeff & Alex have had a busy weekend! In response to Jeff's question: yes, if persons within the US (they need not be American citizens) were a) the specific target of a wiretap, and b) had wholly domestic communications intercepted after being so targeted, then that could be a Fourth Amendment violation, should the courts deem such surveillance to be "unreasonable". If so, then let the heads roll (in the metaphorical, not Islamic, sense).
Whether it would represent a violation of FISA is problematic - the statute has yet to be fully tested to determine if it is an unconstitutional encroachment on executive powers. Perhaps this will play out in the suit that the ACLU brought against the NSA last month, if the district court in Michigan allows it to proceed. If it is determined that there have been violations of FISA, the statute provides for criminal penalities of "a fine of not more than $10,000 or imprisonment for not more than five years, or both".
Garry,
Why the caveat of letter "b" above? Why, if American persons are the target and their calls are intercepted without a warrant, is that not enough to say statute was violated?
Jeff
Jeff -
Because existing Fourth Amendment case law clearly defines the executive's authority only regarding warrantless searches within the United States (and even then such searches could be legal if they meet the "reasonable" standard in the eyes of the court). But when it comes to warrantless surveillance of communications involving at least one party outside of the U.S., there has been no case before SCOTUS to clarify matters - however, the lower courts have time and again shown deference to the executive's inherent powers in this area.
-G.
posted by Jeff at
7:37 PM
6 Comments:
Jeff,
I don't believe Garry or myself would support or defend erroding our civil liberties. I also see where you're missing the entire point. You're looking for a reason to impeach our president. We're not, because there is no evidence to support it. You're concentrating on obtaining that evidence. We're not, because there is, at this point, no reason to do so. You don't seem to grasp the big picture, there are people that want to hurt us just because we do not believe what they believe. Jeff, you don't believe what I believe, yet I have no desire to hurt you. These people don't care, and our president is doing what has to be done to prevent that. There is no evidence contrary to that, and unlike you, we're not looking for that evidence. This country is at war. I support our president. If it was a democratic president doing this same thing, I would support him or her also. I don't need to know all that our government does to fight this war. I support it, because I voted, elected, and support the decisions the people I voted, support, and elected make. I hope they made the right decisions. If they don't, I'll vote, support, and elect someone else. I am an American. No matter who our president is, I' will support our president, and my country. I do not look for excuses not to do so. We are at war.
Alex
By
Anonymous, At
7:50 PM, February 19, 2006
Alex,
I'm puzzled about your comment. I never mentioned impeaching the President or even obtaining evidence to do so. My original post simply suggested that we get on the same page about what we are debating. I think that is key in every debate, and I believe that the reason we have unresolvable political differences in our country is because we often are debating the wrong question.
Your comment is proof of that problem. You are not engaging in the debate at hand. Instead of debating, point by point, the problems of this country and the way to fix them, you are spouting platitudes like "there are people that want to hurt us just because we do not believe what they believe" and "I am an American. No matter who our president is, I will support our president." Those are nice sentiments but they offer nothing to the debate at hand.
Furthermore, loving your country means more than just supporting everything that it does. It means doing everything that you can to make it the best that it can be. It means getting involved in debating the issues, finding real solutions, and helping our government to implement those solutions. Loving your country like a three-year-old loves her mother (ie. the mother can do no wrong) is not healthy. Realizing that the system is not perfect and trying to fix it because you love your country is a much better solution.
I'll close with a quote by Justice O'Conner: "A state of war is not a blank check for the President when it comes to the rights of the nation's citizens."
This debate about wiretaps is important, and I do not look for excuses not to have it.
Jeff
By
Jeff, At
9:19 PM, February 19, 2006
Alex,
You might find this post at my blog enlightening:
My 30-30 Partisan Blindness Principle
By
Jeff, At
9:25 PM, February 19, 2006
You say you've never mentioned impeaching the president. I'm assuming from that remark, that you're innocently just trying to get to the truth even though there's no evidence, other than the doubt that's been placed there by the media, of a lie. You react to my comment by stating that I'm not engaging in your debate the way you'd like me to. You totally miss the point of what I'm saying, yet you continue to defend a counterintuitive position.
Defending counterintuitive positions makes people feel like abstract intellectuals, capable of grasping the larger point beyond the ken of the little people. But just because something is counterintuitive doesn't make it true. I love my country, but your statement concerning my love of country says a lot more about you than it does about me.
There is nothing that you are doing (that I see from what you've said here) that is making our country better. I'm absolutely sure that our system is not perfect. No system is, yet ours is the best on the face of this planet. I believe that with all of my heart. What kind of solution do you believe you're in search of? Pointing fingers and stating that our president MIGHT be hiding something isn't working towards any kind of solution for anything. Printing covert operations designed to fight a war we are fighting in national newspapers isn't a solution for anything.
I do not support everything our government does Jeff, but you wouldn't know that because you don't know me. You have understood very little of what I've said, yet you compare my love of country to a three year old. Let me tell you a few of the things I don't support Jeff. I don't support the tax system our government places us under. I'm working to change that. I do not support the social security system that our government places us under. I'm working to change that. I do not support our government school system that churns out a dumbed down population for our future. I'm working to change that. I do not support our government passing bills that tell a company how much they have to spend on my health insurance. It's none of the governments business. I'm working to change that. I do not support a lot of things our government does Jeff. But the things I don't support have a lot longer affect on this country than trying to find evidence that a man that only has three more years in office MIGHT have tapped an American citizen while trying to fight people who want to destroy us.
What is it you're working to change Jeff?
By the way, I found your article very well written. I tend to agree with you in that respect.
Alex
By
Anonymous, At
7:28 AM, February 20, 2006
Alex,
Please explain how my argument is counterintuitive and how I "feel like an abstract intellectual." I'm not sure I understand that point.
As for things that I'm working to change:
I'm an educator and work very hard at improving public education. Our reliance on standardized tests as a measuring stick for students is problematic. It treats students like products, assuming that every student is the same. They're not. Also, by putting so much emphasis on multiple-choice tests, we are not teaching kids how to think or reason. I'm working hard to come up with new ways to satisfy the needs of accountability and the needs of our students. Further, the amount of money we pay for education is disgraceful. If we want to improve it, we need to pay for it. That includes paying teachers more to more attract good people to the field.
I disagree with my liberal allies because I would like to see America go to a flat tax. I actually think that the middle class would pay less in taxes with a flat tax because the rich would pay their fair share. I'm working on that although it's slow going.
I would like to see quality health care available to all. In Utah, there are many young married couples with kids who don't have health insurance. This is unacceptable. I've been in contact with the Utah delegation to try and fix this.
As for the issue that we've been debating, I believe the big picture is that politicians need to be held to the same legal/ethical standards as regular Americans. Washington is a very crooked place, and for the most part, they get away with it. I'm simply asking the question if President Bush broke the law. If he did, isn't that a huge issue? Isn't it important to have that debate?
Jeff
By
Jeff, At
11:42 AM, February 20, 2006
Jeff,
First of all, I believe we would agree on several topics, with the exception of government provided healthcare. People that drive cars must have car insurance. I don't expect the government to pay for that either. I'm not rich by anyones standards, but I am responsible for my family. Not my parents, and not the government.
As to your question "if President Bush broke the law, isn't that a huge issue?". Yes Jeff. Yes it would be. I have a few issues with dragging it out in the public during a time of war. Is he supposed to release the names of the parties they've wiretapped? Wouldn't that be counterproductive to the war effort? Wouldn't that give as much warning to our enemies as the warning in the newspaper that we've been listening? If President Bush broke the law, he is not above the law. On the other hand, I believe President Bush is the lesser of two evils at this point in time. I also believed he was the lesser of two evils when he ran for his second term, which is the only reason I voted for him. We're at war Jeff. When there's an issue such as this during wartime, it can wait until a better time to shine a light on it. He's not leaving the country.
Alex
By
Anonymous, At
12:25 PM, February 20, 2006
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