Balkinization  

Tuesday, December 20, 2005

Governing through terrorism

JB

The President has insisted that his domestic surveillance program was limited only to identified terrorist operatives working in the United States. That assertion would be far more believable if we hadn't learned today that the FBI had greatly expanded its notion of terrorism to investigate groups like Greenpeace and a Catholic Worker's group which the FBI accused of having a "semi-communistic ideology."

The FBI's surveillance program and the NSA's wiretapping program are separate. But the overreach by the first shows the dangers of overreach by the second. We only know about who the FBI thought was "terrorist" because of a successful Freedom of Information Act (FOIA) request. We don't know whom the NSA has similarly thought dangerous enough to wiretap in clear violation of federal law. I'd be pretty surprised if FOIA as it is currently written allowed the same degree of public revelation about whom the NSA was spying on, and certainly the NSA has no incentives to reveal the extent of its illegal activity. Precisely because the NSA's targets are far less likely ever to become public, it is far more insulated from accountability and therefore it is more likely, not less likely, to overreach than the FBI.

The basic problem is that when government officials are given exceptions from ordinary civil liberties protections to stop "terrorism" the definition of terrorism will inevitably expand. The reasons for this are a complicated mixture of good intentions (wanting to get all the terrorists) and bad incentives (labeling something terrorist frees you from ordinary restraints). The result is that officials increasingly "govern through terrorism" that is, they increasingly use the threat of terrorism as a justification for doing whatever it is they want to do.

The terrorist threat against our country is quite real and dangerous, but the "terrorist threat" as described by government officials expands beyond its boundaries because this serves the interest of government bureaucracies and allows them to avoid oversight and accountability. And perversely, by limiting accountability and oversight, the government does the job of fighting terrorism less efficiently; the government's focus on Greenpeace and Catholic workers organizations detracts its time and resources from genuine terrorist threats.

We have seen the Bush Administration repeatedly driven to this strategy in order to increase its secrecy and unaccountability. The latest version is Attorney General Gonzales' assertion that the September 18, 2001 AUMF-- which gave Congressional approval to fight terrorism militarily-- gives the President carte blanche to override the Foreign Intelligence Surveillance Act of 1978. On its face, the claim is preposterous. The logic of the claim, however, is far more important. If the AUMF impliedly alters federal laws that limit the President's power to fight terrorism, then there is no law that the President may not disregard in the name of fighting terrorism.

The second, and even more chilling argument is that the President has inherent authority to fight terrorism even absent the AUMF. Under this theory, the President can create exceptions to law whenever he determines that it is necessary to fight terrorism. If so, then not only is there no law the President may disregard, but all attempts by Congress to rein him in are presumptively unconstitutional because they interfere with his prerogative to determine the nature of the terrorist threat and the most effective means to fight it.

Thus, the strategy of "governing through terrorism"-- using the threat of terrorism as a justification for maximizing presidential power and minimizing presidential accountability inevitably produces bad incentives for executive officials. Ever-expanding power without accountability invites self-righteousness and overreaching.

The framers of the American Constitution understood this well: they saw how the British King's unchecked power over foreign affairs had led to tyranny and corruption; they saw how placing the ultimate powers of war and peace in a single individual without accountability led to imperial hubris and the destruction of liberty. Hence in their new Constitution they took many of the warmaking powers of the British King away from the executive and gave them to Congress, and they created three branches of government in order to check ambition and corruption by each.

It is time to learn those lessons once again.


Comments:

"The latest version is Attorney General Gonzales' assertion that the September 18, 2001 AUMF-- which gave Congressional approval to fight terrorism militarily-- gives the President carte blanche to override the Foreign Intelligence Surveillance Act of 1978."

FISA contains an exception for searches "authorized by statute." Why do you believe that treating AUMF as a statute--as it was treated in Hamdi--is preposterous, or requires FISA to be overriden? If FISA contains an exception, and this fits the exception, then we're within the statutory framework, aren't we? (I know that Hamdi is a dirty word here--Marty can't bring himself to write it!--but it is relevant, isn't it?)
 

This argument from the Administration does not address the fact that “use of force” and “electronic surveillance” are two separate aspects of foreign policy addressed in two different framework statutes. The AUMF is about “force” and specifically references the War Powers Resolution and is silent on FISA. So, just from the point of view of statutory interpretation it seems like a big reach to say that the one-paragraph AUMF should be read to mash all aspects of foreign policy (that are addressed in distinct statutes) into one and hand them all over to the executive. The only way the administration’s statutory case comes even close is if one thinks that all aspects of foreign policy—even those like domestic surveillance that are inherently destructive of civil liberties and have been addressed as such by Congress—are inherently the domain of the executive. Despite the fact that we have law school classes called “Law of Foreign Affairs,” I don’t think, from a statutory perspective, the law we have now can all be balled into one and handed over to the executive…by implication…in one paragraph.
 

The title JB selected has appropriately circular semantic construction, which is the motive both chambers of congress appear ready to re-define FISA. Communications electronics have multiplied their quickness since FISA became law in 1978. The dangers FISA proposed to control, as the author JB reminds us, remain now as vividly present as when the Bill of Rights became part of the Constitution. The president is in the news accentuating the FISC delay, as long as 48-72 hours, as obsolete in the cellphone epoch. Surely, Congress will attend to making oversight more nimble, to adopt the oft heard adjective applied in these internet times.
 

Terrorism is a difuse enemy.It is pretty hard to guess when it will strike again.Keep this in your mind!Greetings from cyril(http://www.cyril.go.ro)
 

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