Spying at Home

Daniel has obviously never examined in all of it’s intracacies the full theory behind the Chewbacca Defense.

Not to nitpick but that’s an improper use of the word “perusal”.

Peruse has long meant “to read thoroughly” and is often used loosely when one could use the word read instead. Sometimes people use it to mean “to glance over, skim,” as in I only had a moment to peruse the manual quickly, but this usage is widely considered an error. Sixty-six percent of the Usage Panel finds it unacceptable.

Source: The American Heritage® Dictionary of the English Language, Fourth Edition

The Clenis had done worse.

Or, in the movie, if Cruise’s character had pointed out that the only reason those eagles on his shoulders were more than jewelry was due to the laws of the US, and that those laws bound him as well as his subordinates.

Actually, it is all very simple. Laws were passed when Nixon used NSA for domestic spying and those laws were to keep future civilian spying from taking place unless there was allowance by a court. Bush skipped the court thing and justifies all actions as approprate in the all-out war against terror. If you argue against this sort of thing, you are undermining the war; if you call it illegal you are intefering, etc etc
question: if NSA needed courts to approve of that which was not to be done, then what is now taking place with FBI, which is allowed (with court approaval) to tap phones? Do they too get a pass on the court system?

Kieran,

Methinks you’re attributing some things to Glenn that ain’t his, especially when you link his critique of applicable US law to the notion of approving the torture, rendition, etc. of “anyone they declare is an enemy combatant”. He explicitly opposes and condemns torture, rendition and associated measures.

If you have specific analyses of US law to contradict his, I’d be happy to see them.

Indeed.

[Professor Heh] explicitly opposes and condemns torture

But it’s never been clear whether he’s against torture or the word torture.

Americans on the whole are a cruel, fascist, xenophobic, suspicious, misogynistic, homophobic, superstitious people. All these traits allow Bush to break the law in the fashion he does. How many of us, when discussing violations of our rights, have heard people say “Let them come into my home, listen in on my phone calls, read my mail, I don’t have anything to hide”? Millions of people, when espousing such sentiments, are forfeiting the entire 4th Amendment to the Constitution. Whether they’d honestly accept their mail and phone being routed through a government office is debateable, yet they gladly forsake these rights in theory when it doesn’t touch them directly (as far as they know). So, when Bush pulls these stunts they support him or at a minimum don’t care enough to raise hell about it. Bush and Rove know this and use it. As long as it’s Arabs, Muslims, Gays, feminists, academics, atheists, “elitist libruls” or other convenient demons getting killed, thrown in jail or hauled into court they’re happy. Bush will get away with his NSA antics and more because he’s truly doing the bidding of the vast majority of the U.S. populace.

Steve nicely demonstrates the left-hysterical approach to argumentation. We’re all familiar with those ‘gays, feminists, academics, atheists, and elitist libruls’ being killed, thrown in jail or hauled into court, but it is good of Steve to remind us of them in this context.

Kieran’s is a more pernicious sort of argumentation: he doesn’t say anything at all (and how could he, when he doesn’t know anything?) but instead insinuates that his opponents have nothing to say.

The world is a dark and dangerous place. We have to take precautions.

Otherwise, one may encounter an argument that one should have dismissed without consideration. And who knows where that would lead us!

Of course, Kieran. You’d even have had time to go to law school and learn a bit about these issues, had you cared to. But better to learn the right rhetorical response for your crowd than anything at all about the underlying substance.

UK, I don’t have any concern at all with making the argument. In fact, I think the argument is very strong. I don’t see any willingness to engage in the argument here–only a willingness to call names. Pointing that out isn’t picking nits–it’s the opposite.

No. I believe that the fundamental law of the country provides wide latitude for the executive, and that the Congressional authorization given in the days after 9/11 provides additional authority for the presidential action under discussion. That discretion is given by law does not put a decision-maker above or outside of the law. A rather elementary point, but one that so many apparently intelligent people miss. But the cleverness with which they state their tendentious misunderstandings is always enjoyable.

“Because we felt like it.”
“Because we can and will.”
“Because we couldn’t care less what anyone thinks.”
“Because you should just go back to watching the regularly scheduled program.”
“Because you haven’t seen anything yet.”
“Because you critics should just suck-it-up.”

Well, no. Not any of it. Orin isn’t particularly right-leaning, though much of VC is. He doesn’t make the mistake you make; nowhere does he suggest that granting the president, rather than the Congress, some discretionary power means the president is above the law. (It is an elementary point, and yet you’ve misunderstood it again, which is remarkable.) I never suggested that the argument itself is “elementary”; I said the argument is strong. I believe it is, and, if you wanted to and were capable of diving into the arguments, I’d explain where I think Orin goes wrong (for those of you at home: I think he reads Hamdi too narrowly).

My eye-rolling, unlike yours, is in context. That it, I think you’re talking out your ass. And ad hominem argument should at least have a target.

Ultimately, Congress gets to decide whether Bush violated the laws they passed or not. In this case, it comes down to their willingness to say- no, we clearly did not authorize wiretaps w/o warrants and now we’re going to impeach you for it. I think its pretty clear that Bush went beyond what most democratic congressmen thought they were signing up for, but I doubt that’s going to matter as long as republicans control Congress.

John, I’m not sure why it’s odd. I wouldn’t expect an anti-intellectual argument at CT, but then again, I’ve been surprised before. Are you suggesting that law isn’t a field of specialized knowledge, or that Kieran has such specialized knowledge? Or what? Surely there are arguments in economics that aren’t profitably engaged in by laypersons (so to speak). Why would you expect law to be different? (Answer: because you’re not a lawyer!)

The list of actions the president can’t engage in qua president is long. Where’d you like me to begin? Perhaps it’d be easier for you to specify a particular situation, and I can offer you my thoughts!

Stuff like this is clearly an example of #5 in the wild, as it were.

Hey Thomas,

I went to law school. Try me.

Such a supporter would probably argue that in a time of great threat, the president is obligated to push the envelope of his legal powers to ensure the security of the country; and that by keeping the other branches informed, the President provided adequate opportunity for our system of flexible checks and balances to do its work.

This is something I have had much occasion to wonder about in the past few days. What percentage of Americans, I would like to know, still believe we are in a “time of great threat”? And whatever the percentage is, are they in fact right?

Of course, there are certainly many threats to worry about. But is the threat level worse than it was ten or twenty or fifty years ago, or worse than it will be ten or twenty or fifty years from now? And if this particular time is supposed to be a “time of great threat”, we might then ask “great compared to what other time”?

The fact that we live in a world in which nuclear weapons technology exists, and chemical weapons technology exists, and biological weapons technology exists, and in which that technology is potentially transferrable to rather small groups, means that we live in a world in which the threat of a terrorist WMD attack will always be with us. Perhaps various Islamist groups are the problem now. But won’t there always be some similar problem from now until doomsday, so long as there are violent dissident groups, as there always have been, and the technologies to make them dangerous – which is a relatively new, but permanent situation?

Over four years ago some terrorists were succussful in pulling off a rather spectacular attack that killed about 3000 people. But is the fact that this attack occurred due to the fact that this time is a time of “great threat”, relatively speaking, or is it just perceived to be a time of greater threat, because there was a successful attack?

In recent days, I have encountered arguments in defense of the President from people who, at least as it seems to me, are suffering from something like hysteria. They believe that the enemy is all around us, that we are besieged, that the times are desperate and call for desperate measures. Personally, I don’t feel that way at all. Perhaps it has something to do with the fact that I don’t live in Washington or NYC, but in a somewhat more remote part of the US. Now I am a person that inclines toward pessimism and worry about the future, but I personally don’t feel myself at greater risk than I did in the 90’s when the likes of Tim McVeigh were at work.

And there is no doubt at all that as much as I worry about some violent distaster befalling me or my country, it doesn’t come close to the sort of fear I experienced as a child and young man during the Cold War, when I lived with the belief that there was a better than 50% chance that I would not live to see my thirties, and that the disaster that would cut my life short would be worse than 100 9/11’s put together.

Now maybe those were extraordinary times as well. But then when do we get to live under non-extraordinary times, with a President who doesn’t have extraordinary, special powers – or exceptional “discretion” or “latitude”?

The Islamist movement might wane, and is perhaps already waning – some believe it actually peaked before 9/11 – but there will be other groups of political deperados to take their places. It’s likely that we will live through many, many years when the President has received various advance authorizations for the US of force to prevent various threats. That will be the normal state of affairs. So is it to be the normal state of affairs that we are on a war footing, with what we had come to think of as rather ordinary and enduring Constitutional protections in a state of permanent suspension?

And so long as the executive branch enjoys its current “latitute” in favor of secrecy, we have no way of knowing whether terrifying events are being thwarted routinely, or whether the executive is blowing smoke.

hey, i went to law school too! in one of my classes, the lecturer mentioned something about how legal arguments should be supported by references to authorities, such as specific statutes, cases, or the opinions of learned scholars. i think the class was called “introduction to legal studies” or something. perhaps you took it? if so, maybe it’s time you reviewed your notes.

Dan Kervick, I don’t think your lack of hysteria is related to not being in DC or NYC. Those of us who live in those places are if anything less susceptible, in general, than those who live in places that have not been attacked. At least, we’re a lot less likely to vote for the people running the fear-based campaigns.

So Thomas is claiming special expertise, refusing to back up his arguments, impugning the intellectual honesty or ability of everyone who disagrees with him, and artfully shifting the ground of argument whenever he might have to defend one of his morally indefensible positions. Why does this surprise anyone? He’s been doing it in CT threads for a long time.

I often wish that there was some social equivalent that could be used on adults.

I once succeeded in getting his goat by applying his own techniques to him–“massively uncharitable reading,” I think it was–but it really isn’t worth the trouble. Don’t you guys have banning privileges?

Perhaps Thomas’ argumentative style should be added as a new category to Kieran’s list above? Something like 7. Tendentious Misreading: “My counterargument is unstoppable, but I’m not going to share it with you—you’ve made so many rhetorical and substantive errors, you have no credibility. What? How dare you say that I’m arguing in bad faith!”

thomas (#55): I haven’t questioned Kieran’s intellectual honesty.

thomas (#22): But better to learn the right rhetorical response for your crowd than anything at all about the underlying substance.

thomas (#48): Changing the subject is a way to avoid the argument, which, as I pointed out, is your entire goal with this thread. An effective rhetorical strategy when playing on one’s own field (and the suggestion that I’m acting as a troll because I dare to criticize is a reminder to everyone that we’re on your field). And so you change the subject again.

thomas (#55): I’d never question his intellectual capacity.

thomas (#28): A rather elementary point, but one that so many apparently intelligent people miss. But the cleverness with which they state their tendentious misunderstandings is always enjoyable.

thomas (#48): You twice were unable to understand that the fact that someone has discretion under the law doesn’t put them above or beyond the law. Your misunderstanding is a fact.

So anyway…what was that argument that the president hasn’t instructed the NSA to violate the FISA statute again?

Presumably this legal power of the President, if it exists at all, exists in statute or common law. Therefore one would have thought it would be the easiest thing in the world to say which statute or which common law principle. At the moment, the position appears to be “I have a secret argument (possibly ninja, possibly not) which conquers all, but I cannot reveal what it is”. If you’re asking why it is that people don’t take you seriously, then this is why.

People,

Please don’t feed the troll.

There’s no secret to the argument. The difficult questions don’t relate to the 4th amendment (for those looking for the citation, see the update to Orin’s post at VC), but to FISA and the AUMF. Read Hamdi–this is Hamdi all over again.

The issue in Hamdi, as I’m sure everyonoe commenting is aware, was wether the president could order the detention of Hamdi, an American citizen captured in battle. One possible bar to the president’s power to hold Hamdi was 18 USC Section 4001, which provides that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”

The Bush administration argued that it had plenary authority to detain pursuant to Article II. The Court in Hamdi bracketed that question, determining that it was unnecessary to reach a conclusion on that point. Instead, the Court determined that the detention was authorized by the AUMF. Importantly, the Court found that AUMF was a statute, and that it authorized at least the “fundamental incidents” of waging war.

In the present case, FISA provides that “A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute.” The Court has previously decided that AUMF can be viewed as a statute, so the only question is whether the activities undertaken by the administration are “fundamental incidents” of waging war.

This is all familiar enough to those who have read Orin’s take at VC. So where do I think Orin goes wrong? (I have referred to his arguments, and to where he goes wrong in the thread.) Well, Orin gives three reasons to conclude that AUMF doesn’t authorize this. First, he quotes O’Connor’s opinion for the Court: “Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized.” Surveillance and wiretapping are similar to that, he says. But that’s not the issue at all. The languge quoted goes, as I read it, to whether a truly indefinite detention is authorized by AUMF. O’Connor’s opinion says no, there are limits to the authorization–the detained can, under international law, be detained only for the duration of hostilities. That goes to the length of time, not to the goals of the interrogation. Second, Orin objects that “wiretapping” doesn’t seem like the use of force. I think that’s too clever. The issue is whether this is a fundamental incident of waging war, not whether it is force itself. Moving troops, etc., isn’t “force”, and most people (not me) would think that though force is used in the capture of enemy combatants, it isn’t necessarily present throughout one’s detention, yet the Court found that authorized. Finally, Orin points to the Patriot Act and says that Congress couldn’t have intended both. But I think that’s not right. Congress surely could have determined that revisions to domestic law were necessary in general to prevent future 9/11 style attacks, whether from al qaeda or some other group. The AUMF authorizes the use of force against one particular group, not all possible terrorist conspiracies, so I don’t find it particularly relevant that the Congress revised procedures dealing with the more general category.

Presumably there are other objections, and perhaps they are weightier than these. There are reasons for interpreting AUMF to authorize the activity undertaken. On 9/11, a conspiracy organized and directed overseas managed to inflict serious damage on the US and stirred the Congress to adopt the AUMF. I see no reason to think that the specific scenario that motivated its adoption–domestic attacks organized and directed from foreign locations–would be immune from surveillance under AUMF.

No secret argument. All straight forward enough. But who here has read Hamdi? Anyone?

Chris: I didn’t intend any attack on Kieran’s intellectual honesty or capabilitty, as I said. Rhetoric of avoidance isn’t dishonest; it’s unbecoming. Making mistakes in a field outside one’s expertise isn’t evidence of a lack of capability, but of a lack of expertise. Is that clear enough?

Finally, Kieran, I’m not sure why you think it’s relevant who I am. Is that yet another way to make the argument go away? (Of course it is!)

Where? Where did I make an appeal to my authority as a lawyer? Pointing out that you don’t have the expertise isn’t a claim about mine, is it?

What about the fact that this has been done secretly? At least in the (absolutely despicable) “Hamdi case” they did it openly, tried to defend their bullshit ‘argument’.

If they thought what the NSA has been doing was legal, why didn’t they just announce it right from the beginning?

Pointing out that you don’t have the expertise isn’t a claim about mine, is it?

As you have cast the matter, I’m afraid it is. You really can’t see why?

If not, Kieran, then perhaps it’s for the best this fellow spends his time cluttering up your comments box rather than advising his firm’s clients on SOX compliance. Much safer for the clients that way.

The languge quoted goes, as I read it, to whether a truly indefinite detention is authorized by AUMF. O’Connor’s opinion says no, there are limits to the authorization—the detained can, under international law, be detained only for the duration of hostilities.

Nifty! An actual argument. However, it’s based on a misreading. (Only time will tell if it is a tendentious misreading.) You seem to think that O’Connor views interrogation as a “fundamental incident of war.” But that’s not what the opinion says. Here’s some of O’Connor’s opinion as quoted by Orin Kerr:

The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. . . .

Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of “necessary and appropriate force,” Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here…

Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized…

The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.”

O’Connor states plainly that the purpose of detention is to prevent a combatant from returning to the battlefield, but she does not say that interrogation is a goal of detention or that interrogation is a “fundamental incident of war.” You certainly can argue that interrogation, surveillance, etc. are incidents of war, but I don’t think you can do it on the basis of Hamdi.

Note that O’Connor narrowly limits who can be detained under this opinion: Taliban combatants, who engaged in armed conflict against the United States. I’d be willing to be that most of the US citizens whose communications have been surveilled by the NSA program do not meet this definition. I don’t think it’s a good idea to use this intentionally quite limited decision as the justification for a broad-based program of domestic spying.

Another example of trolling seems to have been passed over above:

and that by keeping the other branches informed, the President provided adequate opportunity for our system of flexible checks and balances to do its work.

But isn’t this precisely the point … that the Legislative and Judicial branches were not given a chance to block this? Did the White House ask for retroactive authorisation – or any authorisation at all – for the warantless NSA spying? No, quite the contrary – they even asked the press to cover up the existence of this program!

Clinton, February 9, 1995: “The Attorney General is authorized to approve physical searches, without a court order”
Jimmy Carter Signed Executive Order on May 23, 1979: “Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order.”
WASH POST, July 15, 1994: Extend not only to searches of the homes of U.S. citizens but also — in the delicate words of a Justice Department official — to “places where you wouldn’t find or would be unlikely to find information involving a U.S. citizen… would allow the government to use classified electronic surveillance techniques, such as infrared sensors to observe people inside their homes, without a court order.”
Deputy Attorney General Jamie S. Gorelick, the Clinton administration believes the president “has inherent authority to conduct warrantless searches for foreign intelligence purposes.”
Secret searches and wiretaps of Aldrich Ames’s office and home in June and October 1993, both without a federal warrant.

It seems to me that FISA itself provides for how it is to be applied in case of a declared war. 50 USC section 1811. There’s no reason to think that a President would have greater power in a lesser war. It seems to me than that unless the AUMF contained some kind of repealing language, or something that would support repeal of FISA by implication, at best AUMF only triggers the application of section 1811.

Here, by the way, is an excerpt from Hamdi worth thinking about in this context:

Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.

This has already been linked to in another CT thread, but for Bro. Bartleby’s benefit, Hilzoy at Obsidian Wings neatly debunks the “Clinton & Carter did it too!” dodge. Go read.

Well, that’s exactly my point: it’s a clandestine operation against the American public.

But I guess you’re implying that the ‘evildoers’, ‘enemies of the people’ somehow get bewildered by wiretapping without a court order – could you elaborate on this theory, please?