Charles Fried offers "The case for surveillance:"

Daddy knows best.

If such impersonal surveillance on the orders of the president for genuine national security purposes without court or other explicit authorization does violate some constitutional norm, then we are faced with a genuine dilemma and not an occasion for finger-pointing and political posturing.

Yes, the occasion is for those who seek such surveillance powers to consult with the rest of us -- through our elected representatives -- to find a Constitutional solution. The incorrect solution is to proceed as one wishes and then claim the excuse of necessity. Statists like Fried and, I fear our new Chief Justice Roberts, appear to me to have "Married the State." The all-wise government knows best. When will they get the point that the furor over Bush's usurpation of power has little to do with what he actually did -- if he had gone to FISA we would grumble but at least he would be nominally following the law. The problem is his condescension and play-acting at being our "leader" by refusing to consult with the rest of us (figuratively speaking).

What I find odd about Fried's remote passive-voice stance —

"The president claims that congressional authorization for military action against Al Qaeda, together with his inherent constitutional powers, make such action lawful. There is some plausibility to that claim but until tested in the courts it is impossible to give a definitive opinion about it. (italics added)

— is that he implies that there is some innate, inherent message in the Constitution which the courts will "discover" rather than, as I would see it, "decide" or even "create." Ideas about what the law "is" ("should be" to most common-sense people) will be "tested" in the crucible of the courts and the truth will emerge. It's an oddly passive way of discussing one of the great issues of the the day -- any day. Of course the Supreme Court will ultimately decide what the law of the land shall be — but that's not because they are wisest but merely final.

UPDATE: As I mentioned a few posts ago, it's interesting that the lawyers seem to have adopted the medium of the blog so rapidly and some rather eminent names amongst them. In particular I have been reading the blog of the University of Chicago Law School. I've left some comments — rhetorical questions for those who favor King George — at a post titled The President's "Inherent" Power. Now, Professor Geoffrey Stone has blogged on Bush's Spy Program and the Fourth Amendment. The punch line for me — why this whole issue is so important — (quoting) from the Supreme Court:

History abundantly documents the tendency of Government - however benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies.

Comments

[TM Lutas]

I was always dissatisfied with prior liberal complaints that we civilians had no sacrifice that we had to bear. I always thought that it was a crock, that the inevitable erosion of liberty in wartime was real sacrifice and that victory demanded such sacrifices as we temporarily acquiesce to the state powers that should be stripped of it in peacetime. This is exactly the sort of thing that I always thought was going on.

The reality (insofar as I've seen it in the open press) of FISA is that it is taking too long to assemble the 45-50 pages of evidence that is what generates that near 100% success rate of warrant approvals. From what I've read, it generally takes 6 months to set up the request though once it's filed, the response comes quick enough.

In the midst of the uproar about how we weren't "connecting the dots", the executive decided to leave no dot unconnected. To do it, they had to do an end run around FISA. Once they started, how, exactly, were they supposed to stop? Once you've issued a legal opinion that this course of action is legal, how do you undo it and put everything back under FISA without throwing some people in jail for ordering/executing those searches in a manner that you say was illegal.

So, no, the executive cast the die and now we're going to have to go through the entire process, possibly with the executive declining to enforce a judicial order for the first time in many decades. The Congress can then impeach, or not. I expect not.

With so much of this under security seal, it's difficult to make definitive statements responsibly. Every word I said above could certainly be invalidated by things not yet in public view. Assuming no surprises in the facts of the case, it's a tossup whether the courts ok it but I'd lay good odds that Bush refuses the court order and Congress wouldn't impeach him for it no matter the party balance.

[David Sucher]

"From what I've read, it generally takes 6 months to set up the request though once it's filed, the response comes quick enough."

TM Lutas, I have no idea where you have gotten your "...6 months to set up the request." You may or may not be accurate; it seems rather vague...what does "set up" mean? Gather sufficient information to have a case which will pass the requirements of FISA?

The key thing is not the set-up time -- I can imagine it might take the Executive many months to do the investigative work to determine to decide that it neess wiretaps. But that is not the question at hand. The issue is FISA and whether the President was within his power to void it.

[Hal O'Brien]

I always like to go to primary sources, if I can. Here's what the Assistant Attorney General reported to the Speaker of the House about calendar year 2004, on April 1, 2005, the most recent report we have available (NOTE: that link points to a doucment in Adobe Acrobat format):

"During calendar year 2004, 1,758 applications were made to the Foreign Intelligence Surveillance Court for electronic surveillance and physical search... The Court approved 1,754 applications."

"The Government withdrew three of the 1,758 applications made to the Court prior to the Court ruling on the applications. The Government later resubmitted one of the three applications, which was approved by the Court as a new application. The Court did not deny, in whole or in part, any application submitted by the Government in 2004."

The black letter law provides for emergency wiretaps without warrants at 50 USC 1805f, which says:

"Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—

(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and

(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;

he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance."

In addition, there are the provisions of 50 USC 1802(a), which says:

"...the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year..."

...and it then lays out the requirements (at some length, which is why I'm not fully quoting).

My point here is that the law gives the administration extraordinary leeway and powers. Also, the FISA Court has been extraordinarily compliant with granting permission to the administration.

At that point, the only plausible explanation for the end-run is that the administration themelves believed that what they wanted to request was so egregious that not even the FISA Court would go along with it.

As has been pointed out, much of this material is still classified as "secret". But that very secrecy and the past history of the adminstration to sacrifice national security for short-term tactical gains (Valerie Plame, anyone?) means almost any possible subject of wiretapping is plausible: Howard Dean. John McCain. John Kerry. Pat Robertson. One may well say there's no evidence to support such allegations, but as a Secretary of Defense has been known to say, absence of evidence is not evidence of absence. All we know is that the administration has admitted violating the law. Past that, anything goes.

The other great irony, as others have pointed out, is how destructive this operation has been to terrorism prosecutions now in progress. Brief summary: Just about every defense lawyer for any terror-related suspect can now at least claim the evidence against their client was obtained illegally. This may or may not be true, but it essentially puts the various US Attorneys in question on the defensive in every single case.

As Casey Stengel used to say, "Doesn't anyone here know how to play this game?"

[David Sucher]

Thank you, Hal.

***

The next question of course is to what other purpose will the Administration put its supposed "inherent powers" or those under the AUMF.

Since Napoleon, war has been total war; "terrorism" is simply an advance in tactics. So I think that one could make a good case -- if one were the out-of-balance Administration -- that in pursuit of the war effort, the media should submit all stories concerning the war for vetting before publication. Who says that the President doens't have that power? It's "inherent" in his ability to wage war and simply buttressed by the AUMF. No? You disagree? You must be part of the enemy.

[Hal O'Brien]

I think the point about the erosion of liberty during wartime being "inevitable" is wrong. I've posted some thoughts on my own journal.

[TM Lutas]

After some research, I'm reasonably sure that the six month figure came from an articulate comment over at the Moderate Voice. The article is still there but the comments are only available via Google cache. I reposted it on my own blog. Somewhere along the way of my reading on the subject also was the tidbit that these applications are 45-50 pages long each on average and the Attorney General has to approve of each application personally.

The primary source quoted above says nothing about how long it takes to prepare the documents for a near 100% success rate. Do city cops have a 100% rate for warrant issuance? Very probably not as they are more aggressive about seeking warrants. Do we want our national security people to be less aggressive than our average major US city police force? It's a testament to our opposition's fundamental incompetence that we haven't been hit given how we have constrained ourselves. We can't count on that lasting.

For a thought experiment, capture a terrorist, grab his personal phone book and you have maybe 10 numbers that aren't already on your list and are in the US. You've got 72 hours to type up 300-500 pages, get the US Attorney General to sign off on them and capture the conversations of these guys until they figure out that a superior got captured and those numbers go dead which at best is going to be a week or two later. Remember, if you're caught BSing, your career is toast if the judges get mad over inaccuracies. Oh, if you submit at hour 73, the emergency intercept results all have to get dumped as completely unusable. Can we at least agree that if Osama just bin Captured has your phone number on his "friends" list, you *should* be investigated and investigated before you cut your phone line and swap to a different prepaid cell phone?

Here's a question for the legal eagles. What part of the US Code authorizes the President to take Osama bin Laden up against a wall and shoot him? As far as I can tell nothing, it's part of his inherent right powers to act as Commander in Chief of our armed forces and part of the customary laws of war (which, being customary, are often uncodified). No doubt the Uniform Code of Military Justice sets out regulations on how and under what circumstances to do it but that's not Law but executive regulation, changeable by presidential order. Everybody in Guantanamo, for instance, was put there on discretion of the President instead of given summary execution which was our right under the customary laws of war. Not everything is written down in the law beyond the vaguest and briefest of Constitutional mentions. Running intelligence operations on our enemies during wartime is one of those things. Running an intelligence operation to figure out which people are enemies of the United States is another.

I find it highly unlikely that the other side will only have one successful mega-strike during this entire war. The second, especially if it's signficantly larger (an order of magnitude larger will certainly do it) will bring about enough outrage for radical changes in the law, even at the Constitutional level, that you aren't even considering. A 30k casualty event, in my judgment, would be sufficient for the creation of a Constitutional Convention and the imposition of a significant security state that would make George W Bush's national security program look like the good old days of civil liberty.

The next round of urgent "why didn't we connect the dots" questioning shouldn't have the answer "because we weren't allowed to by the Constitution". If that's the answer, the Constitution will be changed, unnecessarily in my opinion, so that dot connecting will be permissible, even mandatory. Get ready to hear "the Constitution is not a suicide pact" a lot. It'll be the death knell of the Constitution as we know it.

What the left is doing, right now, is pre-answering those questions and ensuring that they are only minimally represented at that Convention where we tear up our present fundamental law because we became sufficiently inflexible to run a successful war under the old order. Congratulations civil libertarians! You're significantly increasing the odds that we lose this Constitution. You're essentially betting that the 30k casualty event never occurs, that the broad mass of the grieving and the "blood in the eye" mad never assembles and it's all academic exercises in guarding the borders of the Constitution instead of triage and salvage what you can as I and others approach the problem. From my perspective, the caterwauling that's going on is making the eventual erosion of liberty that's going to happen much, much worse and I feel sick looking at the scenario unfold before my eyes.

Taking a hard line on civil liberties in war time produces a superior outcome as long as you don't ever get that disastrous second attack. When that 2nd attack comes, the hard line strategy will prove brittle and fail. The failure mode is ugly, total failure. We don't have to go there. We did not need amendment to deal with the Civil War civil liberties curtailment that happened under Lincoln. In this conflict, if we handle it right, we won't even need to get to the level of curtailment that happened under Lincoln. If we adopt the brittle, hard line that the left is advocating, we're going to end up far beyond Lincoln's civil liberties curtailment in an entirely predictable way. That's just stupendously, colossally dumb.

[Brian Miller]

Did even Lincoln claim, Mr. Lutas, that he is not subject to any laws? What is the limit to executive power in your scenario-there is none. Especially for those of us who are frightened by the ideology (and incompetence) of the current Administration, we ask ourselves-why should we trust the President?

As for "the war" what is this "war" we are fighting? It is a technique, a method, used by a broad range of shifting targets-which can even apparently now include environmental groups and Quakers-and certainly drug dealers are now "terrorists." When can such a "war" end? The answer: it need never end. Certainly not if those who benefit from "the war" and its untrammelled executive power have their way.

What is the limit? Was Lincoln really right? You complain about a backlash-but these powers won't necessarily prevent another attack. If we are trained/persuaded to always accept extra-constitutional executive powers, then what will stop the descent into Kafkaesque tyranny once the inevitable second (or third) attack occurs? Certainly not the character of someobdy like Dick Cheney or Karl Rove. Or, for that matter, if the increasingly dominant chirstian Dominionists believe that they are doing God's work, why would they stop? I'm sorry, Mr. Lutas: your way is madness and tyrrany.

[Hal O'Brien]

We cannot be in a "war" against "terrorism." There are two reasons for this, one narrow, one broader.

The narrow reason is, wars are only conducted between nation-states. To say we're in a "war" against "terrorism" -- or even, more specifically, against al Qaeda -- is to elevate al Qaeda and terrorists to the level and prestige of nation-states.

The broader reason is quite practical, and Brian hints at it: Who surrenders on behalf of "terrorism"? This is another variant of, how do we know the war is over?, but it's quite specific. Otherwise, we're just trying to justify an Orwellian war without end.

Going to Mr. Rockford's linked article, I note he talks about the diffculty of processing "a hundred" FISA warrants. Yet, strangely, DoJ, in the report I linked to above, managed to do over 1700 in 2004 alone.

But, more than that... the implication is, if we're just willing to trade away some liberty, "victory" can be had. The trouble with that, of course, is there is no instance where that's been known to work. Israel, Russia, China, Iraq itself... the list of places which have far fewer freedoms yet far more terrorism goes on and on.

Mr. Rockford says, "I know what MY RISK PROFILE IS. Perhaps you'd trade 1.6 million people for civil liberties absolutism. Not I." I suppose I'm showing my age when I say, at least now we know what Mr. Rockford's price is. Thank God it was Jack Kennedy facing down Khrushchev over the Cuban missiles, and not Mr. Rockford, since it seems the mere threat of losing a single American city in a nation of 300 million would be enough for Mr. Rockford to trade his birthright for some pottage.

When it comes to shooting down bin Laden -- even Saddam Hussein has managed to find himself in court, despite being protected by what his minions told him was a decent army. We didn't seem to have siginificant troubles in prosecuting Timothy McVeigh (and the sheer numeric odds are that the "next attack" will be internally from McVeigh's end of the spectrum). If this adminstration genuinely cared about "fighting terror" on behalf of Americans, it would be bin Laden in court, and Hussein on the loose, rather than the other way around.

When it comes to the Constitution not being a suicide pact, that only works if one believes "terrorism" is a credible threat to the survival of the Republic itself -- more so than the Cold War, WWII, and the Civil War. This is simply not credible.

Lincoln once said, "...Shall we expect some transatlantic military giant, to step the Ocean, and crush us at a blow? Never! All the armies of Europe, Asia and Africa combined, with all the treasure of the earth (our own excepted) in their military chest; with a Buonaparte for a commander, could not by force, take a drink from the Ohio, or make a track on the Blue Ridge, in a trial of a thousand years. "

"At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide."

Maybe the "second attack" when -- and not if -- it comes, will lead to the chaos you describe, Lutas. But, if it does, that chaos will come whether we protect our liberties or not. How much better to live free while we may, then, than to be attacked by our enemies as self-imposed slaves whom our enemies could never think of successfully enshackling.

[Hal O'Brien]

And, because it occurred to me, and this is the kind of math weenie I am:

As above, the Dept. of Justice processed 1758 FISA warrants in 2004. There are 260 working days in a year (well, less, really, but let's be optimistic and just do 5x52). That means DoJ was able to process 6.76 warrants a day.

That would mean Mr. Rockford's hypothetical "hundred" additional warrants from the discovery of an al Qaeda laptop could be fully processed in three working weeks. And, of course, emergency warrants could be issued immediately, per the black letter law above -- the three weeks would just be to finish the paperwork after the fact.

Ooh. Ah. The strain. No wonder the administration felt the overhead was too much to handle.

Or... Their admitted violations of the law have nothing whatsoever to do with either "burden" or "national security", and have everything to do following their own private agenda.

Look out for Mr. Occam's Barber Shoppe. He gives a very close shave.

[David Sucher]

TM Lutas wrote:

"For a thought experiment, capture a terrorist, grab his personal phone book and you have maybe 10 numbers that aren't already on your list and are in the US. You've got 72 hours to type up 300-500 pages..."

I think that is a humorous hypothetical; I find it hard to take it too seriously. Let's assume that you have indeed captured a "terrorist" and that there is no doubt that he has lots of good information. Let's stipulate in fact that it's a high-ranking "name brand" terrorist.

Do you really believe that it would take "300 - 500 pages" to document that his phone book is of great interest and the people in it warrant (no pun intended) surveillance? And that if the rules now require applications for warrants to be done by the pound, that the vast majority of Americans -- including members of the ACLU -- would not agree to a modification of the rules? Have you so little trust in your fellow citizens, even liberals?

I fear that you may not be getting the point, TM. If indeed there is a problem with the procedures, then the President should step forward and suggest a procedural solution, rather than skulk around like a sneak violating the law. FISA in fact allows warrants to be issued after surveillance has started. What more could someone want?

I do wish you would come up with a conundrum which is believable, one which passes the smile test.

[TM Lutas]

Brian Miller - Lincoln suspended habeas corpus, tried prominent copperheads before military courts, refused to implement SC decisions when they really didn't suit him, in short, he bent the Constitution into a pretzel in order to save the country. In short, please look at the historical Lincoln and not the mythological one. GWB, by contrast, notified the 8 Congress members he was supposed to with highly classified programs and, if the NSA intercept program is actually illegal (yet to be proven), they neither filed suit in court to stop it (1st stop should probably have been the FISA Court itself) nor did they introduce legislation to correct the problems that the Chimpy McHitler chorus think are so self-evident. There were two methods of oversight and change that were not pursued and Nancy Pelosi is literally a San Francisco liberal. What happened that she didn't introduce legislation? She didn't have to identify a program. She just had to introduce a change in the law and when the NY Times published, she could have said something like "This is why it is so important that HBXXX get out of committee and be passed. Now that I'm no longer held silent by security oaths, I knew of this program and have been working to correct the abuse with legislation but the majority has stymied my work." There was no minority sponsored legislation to fix the problem. Why?

The westphalian rules adopted prior to this country's formation have spared us the kind of warfare that Al Queda and co. are now fighting. We were very fortunate. That multi-century run of luck has now expired. Yes, we are in a war, a pre-westphalian war for which our institutions are wholly inadequate as nobody conceived that somebody would be stupid enough to uncork that genie again. Al Queda has and we're stuck with the task of dealing with it. Read up on the mayhem of the 30 Years War, how messy and complicated it was. That's what we're up against.

The dominionists are a joke and not indicative of mainstream christian thought. They're the monster that good leftists are frightened with. They're also irrelevant to the problem of Al Queda. Dominionist theology concentrates on immanentizing the eschaton by provoking the battle of armeggedon on the plains of Meggido. That's just not Al Queda's game as they think Israel a side issue except for propaganda. They're all about reinstating the caliphate.

Hal O'Brien - You're attempting to impose westphalian rulesets on a constellation of organizations that do not recognize those distinctions. This is untenable. The US cannot play King Canute as you want us to and insist that westphalian limits are still meaningful. This is a form of warfare that we've never known. Our Republic is entirely untested against this sort of thing, pretty much everybody's is. It's an attack method that wouldn't have made sense a century ago, individual power was too weak vis a vis the State. Even then, non-state threats were enough to launch a World War. Today, the threat is coming much more from non-nation states than from nation states.

You are misconstruing the problem before the nation regarding civil liberties. When did we have Lincolnian civil liberties restrictions aside from the Civil War? When the war ended, the measures were rolled back, one after another. The only way to really get into trouble is to ossify the Constitution so that wartime flexibility is lost and to enact necessary measures, you have to carve it into the Constitution, something that won't be so easily rolled back when the war is over. With enough dead, the amendments will come fast and furious and then we really *will* be in trouble on the front of civil liberties.

Yes, we managed to do 1700 FISA warrants. How many more FISA warrants could we have asked for? In other words, what's the spare capacity in the system? I will concede that if the Justice department could have done 3000 warrants, asked for 1700, and the non-warranted intercepts totaled 200, we're facing a different problem than I've been positing so far. You haven't established that there's any spare capacity in the system, that we're not stuffing 1700+ warrants through a system that was designed to handle much lower numbers and we're only getting the numbers we've got because we're burning through people to do it. By your reasoning 9 women can give birth to a child in a month. Life doesn't always work that way. In fact it rarely does. Mr. Occam's Barber shop seems to have given you quite a nasty cut.

[Brian Miller]

I understand what Lincoln did during the Civil War. It's interesting that the Copperheads were quickly tried while the industrialists peddling shoddy goods to Union troops received little problem. The more things change, the more they remain the same.

I still maintain that Hal is correct vis a vis the absolute threat to the United States from the new forms of warfare.

You don't answer my (or David's) fundamental question: what is the limit on executive power in what promises to be a never-ending conflict-one that is already being expanded to include other unfavored groups with no links to Al Qaeda. Do we need secret courts and warrant-free searches to deal with the Animal Liberation Front or other similar, domestic groups. Would you advocate untramelled domestic spying to deal with the militant followers of the McVeighs? Where is your limit? "Wars" against terrorism can last 50 years (IRA, anyone) Given government's tendency to always expand its powers, how can you avoid seeing that the ossified constitution is needed?

As for the Dominionists being a joke-perhaps. They sure have the ears of a lot of people. No, they are not about to take power, but my main point is the current administration is full of people, including the President, who feel they are uniquely carrying out God's work. Civil liberties are just an obstacle.

[brian miller]

More examples of how we should just trust the government in the GLOBAL WAR ON TERROR (tm). http://patriotboy.blogspot.com/

I feel safer already. Burger King employees. Guys being arrested for driving a rental car. People held for a year in solitary without any charges.

[TM Lutas]

David Sucher - My understanding of FISA is that you have to document a number of things, one of them being that you can't get the information in any other way. That implies that nobody else has an ongoing investigation on the target and thus a FISA warrant is not justified because there's already a regular warrant in place. Well, who's the target? Who might be investigating him? Are there other ways of getting the information that don't require FISA? The judge is going to want you to show your work. This makes it impossible to do a cut and paste job because if Bob jihadi has a contact phone in the Teamsters, it's quite possible that, yes, you can get the info in another way (the Teamsters are under court supervision over RICO violations and getting a criminal investigation on them is easy) and that number's going to get dropped from the FISA brief. You have to figure that out. This is only one of several legal hoops you have to jump through to get FISA warrants. The clock's ticking and your career's on the line doesn't make for the best work and the impulse is going to be push back from the legal staff. At the same time if you blow open FISA too much we have the opposite problem. It's better to keep FISA for normal use and to use something else for wartime exigencies which can go away when the war's over. And the war will eventually end.

Brian Miller - Regarding the fundamental question of limiting executive power, I don't see how the traditional ones are inadequate. Limits on executive action are traditionally legislation defunding stuff that is not acceptable and impeachment. Court orders can be defied but you pay a political price for it and it's an impeachable offense if Congress wants to make it one. Outside of war, Congress usually would make it one.

What else do we need beyond that and the ballot box to elect those who would be proper tribunes for our liberty in the face of executive encroachment?

Now, I happen to treat ALF seriously. Running the IT operations for a non-profit that got daily death threats from that crowd will do that to you. They've run bombings and do not limit themselves to property damage (though their attempts to hurt people have only resulted in maimings at most, at least so far). The FBI was investigating them before 9/11 and should have been investigating them.

Here's a pretty good article outlining a bunch of these ties, concentrating on Earth First!, ALF, and ELF: http://www.activistcash.com/organization_overview.cfm/oid/271

Let's go through your wrongful arrests one by one:

Syed Ali - Why yes, you can be wrongly accused. That, in itself, was, is, and should remain a crime. What happened to the business partner? I hope jail time. We don't know because any punishment for falsely reporting him would take away from the narrative of the US sucks which is what this post is obviously about.

Nabil Ayesh - This one's more difficult because there's so little to go on here. Who was he arrested by. What was he accused of? What was written on his deportation order? This is all a mystery. There's no reason for omitting the details other than trying not to confuse people with enough facts to make a true judgment. Oh, and the US sucks. That's coming through loud and clear.

Mateen Butt - This one seems more understandable. There was a general review of paperwork after 9/11 and if they found that you'd lied on something they tried very hard to deport you based on it. We do that outside of the WoT model. It's why we ask if you've been a Communist or Nazi party members or if you're an anarchist. Lying is a deportable offense. It always has been. But don't mention anything about the standard penalties for lying on immigration forms otherwise you might not robotically be thinking that the US sucks.

Mohammad Irshaid - Another false tip case that happens all the time inside and outside the context of the WoT. It's not nice people who hate you will ocassionally report you to the police. You can only hope they're incompetent at it. A friend of my father's got falsely accused as a child molester. The charges didn't go far because the description of the supposed victim was so at variance with the child in residence at his house. He was very lucky.

Salem Jaffer - Another bad tip, bad police work case, this time with a bogus prosecution. Here, we've got our first case of unambiguous suckitude except that, finally, he gets before a judge and is let go after a trial.

Amanda Serrano - So why was Karim deported? Did he lie on his forms? Was he legally deportable? Why isn't he in Spain now? Perhaps the Spanish government hasn't seen fit to give him a visa? But it's a clear narrative, the US sucks.

Faiq Medraj - Arrested for... what? Charged with... what? Cleared of... what? All a mystery except that he's asking for asylum (from who?)

Shokreia Yaghi - Ok, her husband is a business owner and community leader. He's supposedly mouthing off about the US and gets deported. Somehow, I don't think this is really what's written on his deportation order. I visited someone, a romanian, who was on death's door. He was killing himself with a hunger strike asking not to be deported. I gave a ride to a priest who begged him to eat and live. I begged him too.

The INS didn't take a big advertisement out when they deported him. They just put him on the first available plane after his last appeal failed and shipped him to Bucharest. I suspect that this Jordanian's story is similar.

The only unequivocal legitimate beef I can see is Salem Jaffer in the whole list and this list was assembled by a group of people who were looking for sob stories. In a country of 300 million with a few million muslims if this is the worst we've done after 9/11, I'm shocked at our governmental competence. We've done far worse in the past, get some context.

[brian miller]

They may be sob stories, but so what. You missed a common thread: jailed in solitary, in secret, without access to attorneys. I'm much less sanguine than you are about these "minor" abuses of "foreigners."

I'm sure you would have dismissed the complaints about Manzanar as petty whining, too (see, I can be bipartisan). After all, FDR "THOUGHT it was necessary to destroy the lives of thousands of people for no other reason than their race. A perfect example that fear of excess executive power can be bipartisan.
As is exemplified by commentary like this:

"Here is former Reagan Administration Justice Department official Bruce Fein speaking clearly and forcefully on this issue:

Volumes of war powers nonsense have been assembled to defend Mr. Bush's defiance of the legislative branch and claim of wartime omnipotence so long as terrorism persists, i.e., in perpetuity. Congress should undertake a national inquest into his conduct and claims to determine whether impeachable usurpations are at hand.

As Alexander Hamilton explained in Federalist 65, impeachment lies for "abuse or violation of some public trust," misbehaviors that "relate chiefly to injuries done immediately to the society itself."

The Founding Fathers confined presidential war powers to avoid the oppressions of kings. Despite championing a muscular and energetic chief executive, Hamilton in Federalist 69 accepted that the president must generally bow to congressional directions even in times of war . . .

Congress should insist the president cease the spying unless or until a proper statute is enacted or face possible impeachment. The Constitution's separation of powers is too important to be discarded in the name of expediency.

And then there is Bob Barr, former Republican Congressman of Georgia whose conservative and salt-of-the-earth credentials are above reproach. He was the primary sponsor of the Defense of Marriage Act, after all. Here is Barr excoriating Bush defender Dana Rohrbacher:

BARR: Here again, this is absolutely a bizarre conversation where you have a member of Congress saying that it's okay for the president of the United States to ignore U.S. law, to ignore the Constitution, simply because we are in an undeclared war. The fact of the matter is the law prohibits -- specifically prohibits -- what apparently was done in this case, and for a member of Congress to say, oh, that doesn't matter, I'm proud that the president violated the law is absolutely astounding, Wolf."

Fundamentally, we will have to agree to disagree. You are ignoring the basic point, which is not a disagreement about a technicality associated with eavesdropping but an assertion of unlimitable Presidential power.

You do not share the fears of many of our best political thinkers-or the examples of excesses in our history. You think the amorphous never-ending "war on terror" is somehow "worth it." You think a President above the law is Constitutionally justified and praiseworthy.

I can't agree with any of this.

[Hal O'Brien]

"You're attempting to impose westphalian rulesets on a constellation of organizations that do not recognize those distinctions."

I'm glad to see I've persuaded you about this truth regarding yourself and the Bush administration.

"This is a form of warfare that we've never known. Our Republic is entirely untested against this sort of thing, pretty much everybody's is."

Aside from every other guerrilla campaign of the 20th century.

You may not like my previously cited examples. But they don't go away merely because you stick your fingers in your ears and go, "la-la-la." Unless, of course, you're intending to win this week's Palin/Cleese That's Not An Argument Award.

"It's an attack method that wouldn't have made sense a century ago, individual power was too weak vis a vis the State. Even then, non-state threats were enough to launch a World War."

So, it doesn't work. Except when it does. And it's never happened before. Except when it has.

Insert one's favorite quote from The Big Chill regarding sex and rationalization here.

"When the war ended, the measures were rolled back, one after another."

Agreed. That's why the issue of when and how a war ends is so important. I note you have left that issue completely unaddressed.

I know, I know... How Westphalian of me.

And, hey, that even leaves aside how this is relevant at all, if we've never seen a war like this before, and there are no "Westphalian rulesets" to drawn upon. In other words, having just insisted there are no parallels, why are you now trying to make just such a parallel?

"By your reasoning 9 women can give birth to a child in a month."

As it happens, just after David approved that post, I told him:

"Actually, I can already see a flaw here: DoJ may have delivered 6.76 warrants a day, but that says nothing about how long it took to get them processed -- any more than a maternity ward having 6.76 births a day would. So, those hundred warrants could conceivably all be finished within three weeks of each other, but it's unclear how long it would take to get there."

"We'll see if Lutas picks that up."

So, you did. Well done. However:

"Yes, we managed to do 1700 FISA warrants. How many more FISA warrants could we have asked for? In other words, what's the spare capacity in the system?"

How many more could the administration have asked for? Hey, how high the moon? That's about as unanswerable a hypthetical as I can think of. But I don't know (and neither do you), the spare capacity in the system, simply because they don't release that kind of info.

According to DoJ's own figures, there have been 401 prosecutions under the USA PATRIOT Act in the more than four years it's been in force, with 212 convictions. That's a conviction rate of 52.3%, or barely better than flipping a coin. It implies the administration doesn't exercise too much rigor when it comes to terrorism-related prosecutions. (One may infer from that how much rigor they apply to FISA warrants, and to what degree their strenuous efforts led to the 99.998% approval rate of those warrants, compared to solely the pliable acquiesence of the FISA Court.) It also says that the 2004 warrants alone exceeded all four years of PATRIOT prosecutions by a ratio of 4.4:1. This would imply the administration regards FISA warrants as being more urgent than PATRIOT prosecutions, and the manpower is available to pursue them. More, I don't think I can say.

"We've done far worse in the past, get some context."

True. But what we did when we were doing worse things, the world calls "ethnic cleansing" these days, and tends to frown on it.

That doesn't make modern day mistakes acceptable, as any mother with sage advice about Tommy, the Empire State Building, and your capacity to jump should tell you.

[kieth nissen]

NSA will probably have to return to a surveillance that relies on judicial warrants. That may not be a good thing.
At any rate, following the next attack, they will be relieved of that burden. By popular acclaim.

People who talk now about privacy
will realize just how expensive it can be.

I don't care a bit that some data mining operation may sample my e-mails or telephone conversations. That operation might save thousands of lives. We are at war.

[TM Lutas]

Apologies for the hiatus...

brian miller - You might or might not be aware of it but had I had the personal story I have and been born prior to WW II, I might have had to register as an enemy alien (born, Romania). My grandparents and uncles absolutely would have. There were few romanian internees but they did exist. Manzanar is of somewhat personal interest on that account.

It is not that the actions listed above were mere minor inconveniences. Deportation is never minor, nor is imprisonment. It isn't even clear in several of these cases whether the actions taken were abuses at all. The reality is that compared to what happened in WW I and WW II, this is a real improvement over past practice. It is not pleasant to be to belong to an ethnicity whose mother country is at war with the US. It never has been. That our concerted effort to be better is not 100% successful is regrettable. That we've made extraordinary efforts not to repeat the past is commendable. This is not fascism on the march.

Hal O'Brien - I think we're not communicating properly. Let's try without pronouns. The Peace of Westphalia was signed in 1648 and established the modern system of national sovereignty. This was done in order to end the cross-borders bloody clashes that characterized the Thirty Years War between protestantism and catholicism among the many factions in that multi-sided war. Can you provide any actual movements outside of anarchism and communism that even approached that level of internationalism? The anarchists were always repressed more brutally and this fear of letting the genie back out of the bottle was a great deal of the reason for it. As for the communists, once the USSR was established, they fell into the westphalian framework much more than the jihadists seem ever likely to do.

You do bring up the problem of how to end this war. I suspect that it will end in our victory with the reform of Islam so that religious entrepreneurship will be reigned in and controlled adequately. The Bush administration has already started to shift from the tactic of terrorism to islamic radicalism. The shift will likely continue and we will come to a reasonable set of terms soon enough. We, unfortunately, live in a PC age and it was deemed necessary to avoid a civil war over linguistics straight out of the starting gate. I can't argue with that as long as we get our goals and our act together long before the end game. I think we all can agree that we're not at the end game yet. We have yet to deal with the problem of sharia courts asserting universal jurisdiction and physical punishments, for instance. A bunch of guys in Egypt, Syria, Mali, all over the muslim world assert that they have the right to sentence me to death and occasionally, they do. If I were to draw their attention by acting strongly in the defense of my right to free speech by advocating my faith peacefully but assertively, I could very well be named personally in a muslim death warrant. A little act of net-publicized sacrilege got a fellow going by "anarchangel" a visit from the FBI because his name started coming up among jihadists for personal attention of that type.

Now the spare capacity of a bureaucratic system is about as unanswerable as the spare capacity of a road system. Ask David whether *that* can be calculated. The problem is that the process for adding security cleared personnel has become very backlogged. It's very hard to get people through the system and FISA warrant approval people have to be vetted very carefully above and beyond the usual. It's a great spot to put an agent, picking apart or rushing warrant applications to your real employer's benefit.

As any call center manager knows, you can tune the responsiveness of a call center. In a similar fashion, you can tune the responsiveness of a legal shop like the FISA warrant processors. The lack of qualified cleared people willing to do the work means that we likely have real, physical limits on how many warrants we can push through and I'd bet dollars to doughnuts that we're right at the limit given the available number of personnel. Do you want to bet that the guy running the paperwork shop that sets up the applications would like to double his staff but he can't?

You slipped in another slippery statistic though. Not all prosecutions on terrorism charges are the result of FISA warrants. A muslim radical turns state's evidence and names a list of people as cell members. You can get a normal warrant on the strength of that confession and wiretap to your heart's content without using the FISA procedures just like my hypothetical phone book capture in the field probably wasn't the result of a FISA warrant but of allied action or US military action. Prosecutors don't have the same perverse incentives to limit prosecution so they'll try and fail to convict because their failure to convict isn't viewed as prima facie evidence that the ghost of Tricky Dick is wandering the halls of the White House. Of course, the secret warrantless searches got us to the same place but they got us to the same place four years later.

Another note on prosecutions, failing to establish guilt beyond reasonable doubt does not mean that prosecutors are 50/50 on prosecuting the guilty v. the innocent. The record is much more likely to mean that a significant number of enemies of the United States are being let go because the strict standards for reasonable doubt were not met and we'd rather face them in the field rather than relax those standards.

Another thing you might consider is a deportation and a whisper in the Egyptian government's ear is far easier to accomplish than a terrorism prosecution. You lied on your forms? You're gone. Egypt keeps you under 24 hour surveillance and picks up you and your co-conspirators 3 months after your return to Cairo? That's not our affair.

Finally, I was referring to anti-german WW I and WW II actions among other "enemy alien" legislation. That seems to be on point. Did we really commit ethnic cleansing against the germans in the US? When? Or were you just gratuitously throwing in the Indian wars which are not analogous.

[David Sucher]

Kieth,
You may well be correct that some sort of data mining is a good idea. But that is not the issue.
The issue is that the President has authorized something -- and it's not quite clear what -- and he did it without legal sanction. If he truly believes that we should change the laws of surveillance, fine, then he should step forward and propose that we make such changes.
But he can't just do it on his own whim.

[kieth nissen]

My final sentence, "...don't care if they data mine my e-mails and telephone calls.." (or words to that effect) is, I know, not an argument.

What precedes that, which I may not have made entirely clear is that following any new attack this debate will
chill to complete silence. Can you imagine having his debate immediately following the WTC attacks? and, by the way do you think that the absence of attacks since 2001 is because Al Queda just decided not to concentrate on the USA? just a coincidence? well, maybe. .

As someone who comes from a small town (and used a part line) I am a little mystified by the "right to privacy" issue.

What Roosevelt, Lincoln and even Truman did in the name of national security will not stand up to legal scrutiny (certainly not Roosevelt) but security trumps all. The president takes the responsibility; when we get hit again he will
get the blame; that's the way it works and probably the way it should work.

[David Sucher]

Well, Kieth, I think that your political assessments are probably accurate. But so what? Just because people react in a certain manner doesn't mean it is wise.

And more importantly, I can't quite understand whether your loyalty is to George Bush or to the United States? Why do you assume that a President unfettered by the Constitution and the law -- I assume that is what you are urging? -- is going to be more effective in protecting America? Why do you seem to have such faith in pointy-headed government bureaucrats? (After all, that's who actually carries out the President's policies.)

A I said before very clearly, some sort of random 'data mining' might in fact be worth considering -- but I throw it back at you: why not consider it through the normal legal/political channels? Do you think we beat back tyrrany by having our own tyrrant?

[kieth nissen]

My loyalty is to my country. I don't think Bush will be remembered as a good president but he is
endowed with some determination and, apparently, the thick skin that a president of this country has
to have. I voted for Gore in 2000 but I have a sort of viceral aversion to John Kerry so Bush got my
vote in 2004. I probably would have even voted for Dean, anybody but Kerry.

I see privacy rights as desirable but not essential to a good society. A perfect society would give each of
us the right to make non-public decisions without fear of ridicule or attack. To a large extent I think USA
does that...sometimes to the detriment of society at large.

I hope data mining or some other fairly impersonal monitoring should be debated in the political realm...and I think it will be. The question is obvious: will you, David Sucher, give up some of your personal privacy in the interest
of national security? I think that Americans will answer yes to that sort of question (especially if stated more elegantly).

The next president is going to have the same issue. It might even be an issue in the presidential campaign and, I think both candidates, D and R, are going to campaign on security. Not privacy.

[David Sucher]

Kieth asks if I will give up libery for security?

My answer is that I cannot answer without knowing the details: What do I give up? What do I gain?.

Or to put it another way, my participation in our society implicitly answers "yes." Our society is based on a continuous discussion and trade-offs between unfettered individual liberty and personal security. I lose some rights to free use of my property but I gain because you can't use your property in a manner which hurts me.
This is an on-going tension in any civil society and always will be there. The balance we have now has been argued and debated for hundreds of years.

So I'd have to see the specific limitations and the expected benefits before I could answer one way or another, Kieth. I'd be a fool to say "Sure, take away my liberty so long as you make me more secure." I'd have to know the details.

But the big point is that this debate must happen. In public. We can't have the President going around and shifting things on his own whimsy.

[TM Lutas]

David Sucher - The assertion by the President's opponents is that he did so without legal sanction. He does not admit it and likely it will eventually come to trial. What should have happened is that challenges should have been routed differently than they were. Of the alleged crimes, I'm sure that the leak was a crime but I'm not sure that the program was criminal. The law is clear. If the national security mandarinate or some fraction of the membership thinks the president has gone beyond the law, their only recourse is to go to their oversight committees. They are never to leak to the media. This did not happen. The law was broken.

The right to spy on the communications of the enemy in wartime is inherent in the powers of the commander-in-chief. No warrants are ever necessary and no spying can be denied by the other branches. The Congress may only defund it and/or impeach the President if he goes too far. Congress was notified according to the law, to the extent the law required.

There is room for honest patriots to debate whether laws were broken (FISA, for instance) and whether the laws themselves are constitutionally applicable in these circumstances. It is a grey area. It's by no means established either way so let's not jump the gun and just assume that the Bush administration has exceeded its powers.

[David Sucher]

TM Lutas,
So in this new hundred year war against terrorism, you are satisfied to give the President -- no matter which President it is and next time it could be a Democrat -- unfettered powers to do anything? That is exactly what you are saying, of course, whether you intend to or not. The war on terror is war with no battlefields and no boundaries. What happens anywhere in any venue -- it could be what appears to the naive as a local land-use matter -- could actually be part of the war on terror. And the only one to decide is The President. You see, if the President has unfettered ability get any information about anything then doesn't that (at least) imply that he has unfettered ability to act on that information? I mean what goes is the information if the President is hindered in action?