Spying at Home

by Kieran Healy on December 19, 2005

End-of-semester stuff has been piling up—Who knew that there was a well known social theorist named Marx Weber? Or that he developed the idea of the Protastic Ethic?—which means that I haven’t had enough time to digest the NYT report that President Bush secretly authorized the NSA to spy on Americans without any legal oversight, or reactions to it. But from a quick perusal, it seems like both the Administration’s rationale and the response from supporters online is essentially the same as the effort to justify the arbitrary detention and torture of people (including U.S. citizens). In other words, choose any or all of:

  1. Epochal Shift: “9/11 Changed Everything and so the President can do whatever he likes.”
  2. You Can’t Handle the Truth!: Your Jack Nicholson moment, viz: “Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who’s gonna do it? … I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it!”
  3. Exquisite Regret: “I fully appreciate the strength of the arguments (moral, practical, empirical) that you put before me about the evil nature of torture, arbitrary detention and spying on the very citizens from whom our claim to legitimate government derives. So believe me when I say that I have agonized over these decisions, lain awake at night, analyzed the hypotheticals in detail and now, with a great sense of the weight of the choice I am making, I will sign this piece of paper suspending the rights of anyone whom our staffers feel should be investigated.”
  4. Rubber Stamp: “We obtained a legal opinion from one of our own lawyers. He said it was OK and I believe him. He’s totally objective.”
  5. World Weary: “Oh, puh-leeze. This is nothing new. It’s been going on for years—Americans have no idea how little legal protection they have from arbitrary government surveillance. That’s why I became a libertarian. I still fully support the Government’s right to monitor, lock up, ‘render’ and torture anyone they declare is an enemy combatant, though. I absolutely still don’t trust them to run a Social Security Program or redistribute taxes to the poor, obviously.”
  6. Radical Empiricist: I’m not sure we have all the facts about this, and we should suspend judgment until either more real evidence becomes available or the black GM Suburban pulls up outside my house and bundles me off to a disused Soviet-era facility in Eastern Europe.

Mix and Match as appropriate.

Update: Mark Schmitt, Dan Koffler and Ezra Klein have more comments. Orin Kerr offers a detailed legal analysis.

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The Mahablog » Strict Construction?
12.19.05 at 5:26 pm

{ 81 comments }

1

Daniel 12.19.05 at 11:30 am

Just on a tangent with respect to that Jack Nicholson speech, I have never really understood why the Cruise character in “A Few Good Men” didn’t wait for him to reach the end of it, and then say something like “well that’s as may be, but it doesn’t really have anything to do with the specfic charge before the court, which is of beating to death one of your own troops while he slept. Frankly, nobody believes that the USA is at quite such a danger of being invaded by Cuba as you suggest, and even if we were, killing our own soldiers would be an odd way to respond to the problem.”

2

Richard Bellamy 12.19.05 at 11:38 am

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

3

M. Gordon 12.19.05 at 12:00 pm

#5 sounds like a wishful strawman to me. Can you provide examples?

4

ponte 12.19.05 at 12:03 pm

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

5

otto 12.19.05 at 12:12 pm

These are exactly the genres of argument used by people in authority who have achieved a de facto policy or position but will not, or cannot successfully, submit them to open policy debate and contingent decision-making (i.e. where approval of the policy or position might in fact be withheld or denied).

Mutatis mutandis, they’re the same arguments for implementing parts of the EU constitutional treaty despite the no votes in France and Netherlands. (Of course, they are only implementing the ‘uncontroversial’ and ‘practically useful’ parts of the constitutional treaty, which reproduce policies ‘which have been going on for years’ etc.)

6

abb1 12.19.05 at 12:17 pm

The Clenis had done worse.

7

Dirk 12.19.05 at 12:25 pm

The secretary of state was on Meet the Press yesterday addressing questions about domestic spying, and I actually felt sorry for her. She had NO real answers. Kept dancing around the questions. If it had been a high school debate class, she would have received a C-.

8

Barry 12.19.05 at 12:41 pm

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.

9

Kieran Healy 12.19.05 at 12:46 pm

5 sounds like a wishful strawman to me. Can you provide examples?

Yes, possibly a strawman, though I think there are enough schmibertarians out there that it’s been seen in the wild. Given his views on the War on Terra and other things, I’d say this comes fairly close:

Most people fail to appreciate how limited their protection against government surveilliance is, both under statutes and under constitutional law. And that’s doubly so where international communications are concerned. … Nor is this a phenomenon that can be blamed on the Patriot Act or the Bush Administration, particularly … (For a non-FISA example of that kind of parsing, read the Steve Jackson Games opinion from 1994, long before the Patriot Act). You may find these legal interpretations offensive — I do — but they’re the law as it is.

10

fred lapides 12.19.05 at 1:51 pm

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?

11

Pat 12.19.05 at 2:07 pm

I can’t provide an example online, but I had #5 used on me by my girlfriend’s stepfather.

12

Shelby 12.19.05 at 2:08 pm

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.

13

Kieran Healy 12.19.05 at 2:13 pm

No, I’m not accusing Glenn: like I said, he’s probably not a pure instance of #5. And of course like him I wouldn’t dream of insinuating such a thing in passing. Heh.

14

otto 12.19.05 at 2:27 pm

Indeed.

15

Oskar Shapley 12.19.05 at 2:28 pm

#7 Back to classics:
Bush: “How’d you like to hear my legal theory, dear liberals? My humble little idea goes something like this. [He is suddenly extremely loud and violent. Roars:] Justice is only the will of the stronger. What do you think about that, a*#hole? [Slaps Kieran across the face with his gun]“

16

P O'Neill 12.19.05 at 2:53 pm

[Professor Heh] explicitly opposes and condemns torture

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

17

Bro. Bartleby 12.19.05 at 3:33 pm

I propose that we give each prisoner at Gitmo (as well as at all the secret CIA holding cells) a Macintosh with DSL connection, and provide prisoners with a PowerPoint presentation on blogging (in their native language). Reassign all the agents with torture merit badges to desk assignments, having them read the prisoner’s blogs. Perhaps reward the prisoner with the coolest blog an iPod? The possibilities are endless.

18

steve duncan 12.19.05 at 4:00 pm

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.

19

Hypnohobo 12.19.05 at 4:09 pm

Regarding A Few Good Men . . .

Like “I love the smell of napalm in the morning” and “First kill all the lawyers” the soliloquy by the anti-hero is the most memorable moment in A Few Good Men. As he utters the well chosen words that will end his career, Col. Jessup is simultaneously revealing, sympathetic, and admittedly wrong. I believe that Col. Jessup’s point, is widely appreciated.

To me, even the “rogue” Bush administration is being, too legalistic in carrying out the war on terror.

20

Thomas 12.19.05 at 4:16 pm

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!

21

Kieran Healy 12.19.05 at 4:23 pm

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.

We’ve had five years of this administration pushing its projects (including the endless expansion of executive authority) under the flag of the WoT, with fellow-travelers in tow. Plenty of time to learn the playbook, thomas.

22

Thomas 12.19.05 at 4:34 pm

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.

23

Uncle Kvetch 12.19.05 at 4:38 pm

I notice that the exquisitely knowledgeable Thomas is staying safely in the realm of picking nits with Kieran’s post, rather than attempting to actually make an argument that the president is above the law.

And that’s wise of him. In his shoes, I’d probably do the same.

24

Thomas 12.19.05 at 4:53 pm

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.

25

jim 12.19.05 at 4:55 pm

I just wish that people would stop pointing out that the FISA court has disapproved only four requests as though that were a good thing.

26

Kieran Healy 12.19.05 at 4:58 pm

I think the argument is very strong

You think there’s a very strong argument that the President is above the law?

27

P O'Neill 12.19.05 at 5:01 pm

What a country. In the morning Bush explains why he’s really a King. In the afternoon:

THE PRESIDENT: Two-hundred-eighty-nine-thousand toys being distributed from here to children throughout D.C.

It’s an interesting process. The toys are collected, the Marines sort with D.C. police and distribute. Is that right?

VOLUNTEER: Yes.

28

Thomas 12.19.05 at 5:04 pm

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.

29

sharon 12.19.05 at 5:04 pm

I saw a bloke doing the first part of #5 (“puhleaze, don’t they know all American presidents have done this?”) on the news tonight. He also complained that all the politicians who were complaining were lawyers who didn’t know their history. Priceless. But he didn’t continue with the libertarian stuff. He was introduced as some kind of security bod I think. (What, vested interests? Shurely not.)

30

Voice From The Singularity 12.19.05 at 5:07 pm

“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.”

31

Hogan 12.19.05 at 5:36 pm

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.

The Fourth Amendment is pretty fundamental law; do you have something specific that trumps that? Also, could you point us to the text of the post-9/11 authorization that refers to warrantless wiretaps? Because a lot of people in Congress don’t seem to think that’s what they were saying.

32

Kieran Healy 12.19.05 at 5:37 pm

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.

Seems like you’re quite fond of the kind of sophomoric eyerolling that you criticize the rest of us for.

As it happens, it seems that even generally right-leaning lawyers who know a bit about this issue think that this argument is far from ‘elementary’, and that the President probably violated the FISA law in authorizing this surveillance.

33

Bro. Bartleby 12.19.05 at 5:54 pm

Aren’t these blogs and forums priceless, in the past when a fellow felt his rights were (and perhaps were) trampled upon, he would just take it until he (and many more) could take it no longer, then the only outlet available were the streets, and to the streets they went in protest. Today? We vent with puffs of steam on the Internet, frequent melodious whiffs and wafts that keep the teapot from ever boiling over.

34

Thomas 12.19.05 at 6:02 pm

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.

35

Andrew 12.19.05 at 6:21 pm

I was amused by Kieran’s categories, but I think some of the above commenters are taking them too seriously. Surely Kieran doesn’t believe that they represent a reasonably charitable reading of a “warrantless wiretapping” supporter’s arguments. 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.

36

mpowell 12.19.05 at 6:44 pm

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.

37

John Quiggin 12.19.05 at 6:58 pm

Thomas, you’ve illustrated #8 (used in the leadup to Iraq) pretty well. “If you only knew what we knew, you’d support us all the way”.

This is a particularly odd version, though. “Thanks to my law school education, I can prove you’re wrong, but since you’re incapable of understanding the arguments, I won’t bother providing them”.

Still, I’d be interested to hear from you, since you don’t believe the president to be above the law, some examples of actions you believe he is prohibited from undertaking.

38

Thomas 12.19.05 at 7:05 pm

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!

39

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The issue isn’t so much the surveillance itself, not anymore. It’s the processing of the readily-available information.
The collating of it, the creation of an image – of a person, or a group, or the nation as a whole – out of the bits and pieces of the son et lumiere we all make.
I’m not suggesting that because the violation of privacy is so effortless now there should be no concerns for it, not at all. What I’m saying is the character of those who process the info is now what matters most. Fie on the law, or rather the lawyers, most of them.
The laws are there to thwart malefactors, not guide the decent.
Taking guidance from the parts of the moral map the laws don’t cover will lead inevitably to government by the crafty and opportunistic. Has led.
The established moral goal is the elimination of “Terror”. It was established by involuntary consensus through the artificial manipulation of images of real tragedy.
The entire arena now is layered into virtual space. And in that abstract and unreal geography the President and his councilors appear and disappear like video game avatars.
Making war on “Terror”. Ending “Terror”.
We could as clearly and easily attain the goal of eliminating all bad things from the earth. We could demand of the angelic host a diaper change into the bargain.

40

foo 12.19.05 at 7:31 pm

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

41

John Quiggin 12.19.05 at 8:02 pm

I’ve got a million of them, Thomas! Let’s start with this one.

Could the president of the United States imprison “a little old lady from Switzerland” as an enemy combatant if she donated to a charity not knowing that her money was eventually used to finance the activities of Qaeda terrorists?

On the other point, I’m happy to advise you that economic analysis shows that the Bush Administration’s tax policies are comprehensively wrong. Are you willing to accept my authority on this, or would you prefer to take the anti-intellectual view that ordinary citizens have to make up their own minds after listening to what the experts have to say?

42

Pooh 12.19.05 at 8:40 pm

Hey Thomas,

I went to law school. Try me.

43

nick s 12.19.05 at 9:07 pm

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.

Cite, please.

44

Kieran Healy 12.19.05 at 9:31 pm

You’re not a very proficient troll, thomas.

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.)

You are begging the question. The issue is precisely whether the authorization the President has claimed for his actions (that it’s covered by the Constitution and by the resolutions passed prior to the invasion of Afghanistan) is justifiable or not: that is, whether the Constitution or Congress really arrogated him the authority he claims. I wrote a post saying that we’d get the same laundry list of reasons from the Administration’s supporters that we got about torture. (Reading around I see no reason to think I was wrong.) As to the legal reading (4th amendment, FISA, related cases), I pointed to an analysis that suggested that, on balance, the President had broken the law. Published or broadcast comment from other legal analysts that I’ve heard today suggests that, as an absolute bare minimum, there is substantial disagreement about whether the President is right. You, meanwhile, pointed to yourself and said “I am right; I went to law school,” then pointed at me and said,

I think you’re talking out your ass. And ad hominem argument should at least have a target.

And there you left it. Seeing as so far you’ve been resting your entire argument on _ex cathedra_ assertions of expertise, I just want to ask whether I can let our readers know who you are.

45

MQ 12.19.05 at 10:57 pm

It seems Thomas is yet more proof for the negative effect of law school attendance on human rationality.

46

Dan Kervick 12.19.05 at 11:06 pm

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.

47

Thomas 12.19.05 at 11:27 pm

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.

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. It isn’t begging the question to recognize your difficulty with that concept. Now you’ve accurately presented the question. Can you see that the question, as you now have it phrased, isn’t whether the president is above the law?

Far down the comment string, you pointed to an analysis that begins by describing the questions presented as “hard.” Nowhere did you suggest that engagement with those hard questions was worthy of you or your readers; the clear implication is that there are easy answers, apparent to all, including sociology professors moonlighting as legal analysts.

As it happens, I haven’t engaged the merits in this string. I’ve told you that I happen to think that the administration’s arguments are strong, and suggested, without making the argument, some reasons for that (but only in response to accusation that the merits had me scared–they don’t). If you’d like to start another string, with your analysis–as opposed to the reasons you and all people of good will rightly refuse to engage in the analysis–then, by all means, start such a string. What an improvement it would be.

I haven’t insisted on my view on the merits, ex cathedra or otherwise. My point–clear back at the top–was only to contest your suggestion that there was no good faith disagreement with your position possible here. As a lawyer, without more, I know enough to say that’s not true. As does Orin and as do the other legal analysts you now mention. To point out that you haven’t the professional credentials to evaluate the constitutional and interpretive questions here isn’t to claim a privilege for my own interpretation over all others. It is to say that your rhetoric was just that, and nothing more. Which, as I’ve said again and again, was my point. (If you haven’t noticed, that’s almost always my point.)

48

snuh 12.20.05 at 12:10 am

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.

49

rollo 12.20.05 at 12:21 am

Thomas – Isn’t saying “the fact that someone has discretion under the law doesn’t put them above or beyond the law” ignoring the issue entirely? Isn’t that kind of a smokescreen all in all?
Isn’t the issue whether it’s right or wrong to spy on one’s own people?
Laws are easily changed by those in power. Isn’t it true that someone with “discretion” not being above or beyond the law may be due to the pertinent laws having been changed, so that very claim could be made?
Isn’t that really the point, the issue, the problem?
The American citizenry has been told they have to surrender some of their freedoms because other people who hate them for those freedoms are trying to hurt them.
Our enemies hate us and want to take away our freedom.
The President loves us and is taking away our freedom. But it isn’t against the law for him to do that.
Well, gee.
The idea that the law is more important than what it safeguards should be repugnant to free-thinking people.

50

KCinDC 12.20.05 at 12:54 am

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.

51

Daniel 12.20.05 at 12:59 am

This is so stupid. Thomas is actually making one of the claims Kieran identified above, proving it isn’t a straw man. He’s claiming that some legal power exists which allows the President to authorise the NSA to spy on Americans. Kieran has two arguments against this point; first that no such power exists, and second that even if it did, it would be very unusual and unexpected in a politically damaging way to use it. Thomas’ real complaint appears to be that Kieran didn’t bow and curtsey enough when he made them.

It’s quite clear that Kieran’s subsidiary point -that a lot of people like Thomas are arguing in bad faith – is also completely correct. Nobody was arguing this wold be a good idea until they found out that Bush had actually done it. It appears to me as a neutral observer, that Kieran is right on every important point, and Thomas has retreated to the usual “brightest kid in the fourth form debating society” position of pompously ritcising someone else’s use of “rhetoric” while loftily refusing to make the argument which would of course save his case completely.

In school, this sort of behaviour gets you bullied mercilessly and I often wish that there was some social equivalent that could be used on adults.

52

Matt Weiner 12.20.05 at 1:15 am

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?

53

the cubist 12.20.05 at 1:16 am

Arrest the Police State

This is the gravest crisis in American history excepting only our birth and our civil war. The president is not above the law, and we will need move the very machinery of the law to prevent him from reaching his goal of a “christian” corporate despotism while casting himself as Big Bother. Call in every favor ever owed you from anybody powerful, print out your thoughts about this and make “Arrest the Police State!” signs, and mail these to your representatives. Hundreds of thousands of us need to speak out right now in defense of law and Constitution, this very week.. and fight this out. This is it folks, it’s us or them.

I know, OK, so I’m repeating myself.

“Arrest the Police State!”

54

chris lovell 12.20.05 at 1:41 am

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!”

55

Thomas 12.20.05 at 1:48 am

Daniel fantasizes about acting the grade school bully, and Matt, showing up late, agrees. This sure is sophisticated company, so you can imagine that the threat of being banned for not respecting the norms of civility here is at the top of my list of concerns.

Matt, I’d be happy to back up my arguments. Where should we start? Or email me, and we can have the discussion on the merits, not otherwise addressed in this thread, offline. I haven’t questioned Kieran’s intellectual honesty. I’d never question his intellectual capacity. (Kieran is the smart CTer, JohnQ the crazy one, Harry the earnest one, … .) Kieran isn’t a lawyer, he’s a sociologist. That isn’t a criticism; in many circles it’s close to a compliment. That said, it doesn’t provide him a good perch for suggesting that those who disagree with him about, as his expert Orin would have it, “hard questions” in law are acting in bad faith. I thought a good question to analyze is, why does Kieran, who doesn’t know much of anything about the 4th amendment or FISA, feel that he can and should dismiss these opposing arguments without engaging in them? What’s going on in the post? I’ve given my thoughts on that narrow point.

Now you’ve joined the party, a bit late, and suggest that the issue is one of morality, of all things. Frankly, I’m a bit lost with that suggestion. But, rather than respond to your non sequiturs, I’ll simply say thanks for recognizing my posts as artful.

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chris lovell 12.20.05 at 2:37 am

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?

57

John Quiggin 12.20.05 at 2:59 am

Thanks for the abuse, Thomas. I’m glad I’ve managed to annoy you enough to attract it. But you’ve still squibbed on your offer at #39, and on every other implication that you have anything to offer to this discussion [apart from an illustration of the fact that it's impossible to defend Bush without exhibiting multiple forms of intellectual dishonesty].

All hat and no cattle.

58

Daniel 12.20.05 at 3:20 am

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.

59

cs 12.20.05 at 7:27 am

Thomas, I am not a lawyer, so you might have to dumb down your answer, but I have a question about the power of the president as you see it.

You say he has discression to take certain actions, but he isn’t above the law. Does that mean that domestic no-warrent spying is OK, but there are certain other things that are not OK for him to do? What would be an example of something that would be not OK? And since the post-9/11 congressional resolution doesn’t specifically mention no-warrent domestic spying, on what basis can you conclude that resolution permits that spying, but doesn’t permit that other thing?

60

jim 12.20.05 at 7:38 am

People,

Please don’t feed the troll.

61

Kieran Healy 12.20.05 at 7:45 am

This is getting funnier all the time.

Matt, I’d be happy to back up my arguments. Where should we start?

Gee thomas, I don’t know. How about “any time you like, go right ahead.”

Or email me, and we can have the discussion on the merits

This is my favorite move so far, I think. “I am prepared to offer a secret discussion about the merits but cannot say anything of substance in public”! I think this is a lovely example of “self-similarity in the wingnut function”:http://www.thepoorman.net/2005/03/24/all-quiet-on-the-western-front/. The stratagems of the administration reproduced perfectly on a tiny, tiny scale. You should really be working for the government in DC, thomas: You’re wasted out there in Kansas City, advising firms on how to comply with Sarbanes-Oxley.

62

Thomas 12.20.05 at 8:49 am

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!)

63

Kieran Healy 12.20.05 at 8:55 am

Finally, Kieran, I’m not sure why you think it’s relevant who I am.

I can’t imagine why your repeated appeals to your own authority as a lawyer would make anyone remotely interested in who you are.

64

Thomas 12.20.05 at 8:59 am

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?

65

Thomas 12.20.05 at 9:06 am

Also, Kieran, feel free to engage the merits. You’ve been insisting you’re eager to do so, despite the fact that you never have. So, please, dive in to Hamdi. Read my analysis. Tell us where you think I’ve gone wrong. I know it’s contrary to your modus operandi–using rhetoric to avoid confrontation with ‘unsavory’ arguments–but you’ve insisted on it here.

66

abb1 12.20.05 at 9:25 am

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?

67

abb1 12.20.05 at 10:03 am

Atrios posted this:

http://www.whitehouse.gov/news/releases/2004/04/20040420-2.html

Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

68

Mrs Tilton 12.20.05 at 10:13 am

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.

69

chris lovell 12.20.05 at 12:24 pm

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?

When you say that “apparently intelligent people” are “unable to understand” “a rather elementary point” I’d say you’re questioning their intellectual capability. When you accuse someone of engaging in a “pernicious” argument, or of a preference for “the right rhetorical response” over learning “anything at all about the underlying substance” you’re questioning their intellectual honesty. Is that clear enough?

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chris lovell 12.20.05 at 1:47 pm

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.

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djw 12.20.05 at 3:14 pm

Now you’ve joined the party, a bit late, and suggest that the issue is one of morality, of all things. Frankly, I’m a bit lost with that suggestion.

Perfect. Just exquisite.

72

Robin Green 12.20.05 at 5:28 pm

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!

73

John Quiggin 12.20.05 at 5:35 pm

A ton of effort on our part to extract such a lame and previously-refuted argument!

I don’t think anyone here should sign up as an interrogator.

74

Bro. Bartleby 12.20.05 at 8:55 pm

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.

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Thomas 12.20.05 at 11:12 pm

John Q, where has the argument I made been “previously refuted”? On the back of one of your envelopes?

Chris, I’m not sure where we disagree, other than the conclusion. I don’t believe, and nowhere suggested, that the holding in Hamdi was directly on point. Rather, Hamdi provides a useful and relevant precedent interpreting the AUMF and its interactions with sections of the USC. I believe that, following Hamdi, the question is whether surveillance, etc. are incidents of war, and that, when one examines that question, one finds that they are–and, more relevantly for our purposes, one finds that, at the very least, there’s a reasonable, good faith argument that such surveillance is an incident of war.

76

CharleyCarp 12.20.05 at 11:29 pm

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.

77

jonathan 12.21.05 at 7:38 am

Comes with the territory, USA.

78

Uncle Kvetch 12.21.05 at 10:20 am

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.

79

oh dear 12.21.05 at 10:43 am

abb1 opines: 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?

That’s right, we announce top secret clandestine operations ‘openly’. Where is the transparency. The NSA is way too secretive!!1!

You’re a genius abb1.

80

abb1 12.21.05 at 1:08 pm

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?

81

rollo lovecraft 12.22.05 at 7:47 pm

Oh Dear makes the point at the heart of the dark-side argument.
All these iniquitous secret things rely on faith, trust and confidence in the authorities whose responsibility is not just to safeguard what is, but to protect the originating moments of what will be.
To this faith is charged the acceptance of covert maneuvers that we are required to believe are in our best interests – screams from the margins that are only the sounds of information being gathered, important information that will make us more secure.
Things shift – the raw material of the American republic as it was found in Jefferson’s moment is gone, replaced by what is for the most a weaker more timid thing. What were once marginalized attributes are central now, and the reverse holds true as well.
Everyone likes to see themselves as central to what’s in question – humanity, decent folks, right-thinking citizens, whatever.
So the debate could be about how erroneous it is for these quisling bastards, who wouldn’t sacrifice anything that would give them the slightest hurt, to step into the inheritance of those who gave all.
They put about their garish reverence for heroes all the time – the firemen and police of 9/11, the soldiers of all our wars against tyranny and oppression, the leaders who braved persecution for noble cause, right on back to Jesus. But they destroy everything those heroes suffered to preserve on the fetid altars of their greedy little dreams of satisfaction.
The smoke and mirror substanceless rationalizing of secret operations we’re asked to trust and keep the faith toward proceeds directly out of a proven cess pool of inhuman cruelty – a festering moat in the service of materially bloated conniving opportunists and erstwhile black-magicians.
It’s one thing to trust those who know more than we do, who have graver responsibilities and more serious and immediate decisions to make than we do generally; it’s quite another to trust blindly those whose visible actions clearly demonstrate a total disregard for any higher ethic whatsoever.
The chancer’s loyalty is earned by the probability of sharing in the spoils of the aftermath of their masters’ cunning aggressions, nothing more than that.
The rest is a shield of dishonesty, and repurposed innocence held up like a shield – against which our blows are intended to fall, checked and harmless.
Skullduggery, jiggery-pokery, hugger-mugger – all are effective tools, most especially in a contest where victory is stripped to utility, where nobility is arcane and foreign, and love of truth no more than a handicap, an irrational impractical idealism of no use whatsoever – to cowards overwhelmed by the already towering and still accumulating mass of their perfidy.

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