Wednesday, December 28, 2005
NSA Euphemism Watch, Part 2
In this week's Weekly Standard, Gary Schmitt of AEI (former executive director of the President's Foreign Intelligence Advisory Board) has an intriguing essay in which he argues that FISA was a very bad idea to begin with:
Is it a given at this point that the underlying reason GWB avoided FISA was that he didn't want anyone to think that the NSA was data-mining to find terrorist communications? Its starting to sound as though people are assuming that's the case. Is it?
Doesn't this whole line of argument allow me as an individual citizen to break a law that I think is inadvisable? What if it is my earnest belief that on a clear day the legislative speed limit of 75 mph is too slow and I want to be home faster? At its bottom the argument is one for nullification, a battle that was fought and lost 140 years ago.
Seems to me that there are two separate, related things here.
First is the generalized data mining. That quite possibly is legal under FISA, we simply don't know enough details to make a judgment.
Second is the interception of certain communications. That is where there is the strongest argument that FISA applies. The reason given by Gen Hayden why FISA doesn't work there is "speed" and "agility". In the press conference he stated that the actual decisions were being made by the shift supervisor (operating under guidelines) which suggest s to me some sort of near real time decision making (something like: "Terrorist A is calling B, intercept any calls B makes when A gets off the line").
Secrecy is obviously important (although informing 14 members of Congress and the chief of the FISA court about the program is something less than secrecy), but I would not discount the "speed and agility" need that Hayden stated.
Gen. Hayden also explained, or at least asserted, that the emergency authorization procedure that the AG has statutory authority for is also not quick enough for what they are doing
Marty, I'm quite surprised by the certainty that you bring to this issue. Neither you nor I are aware of the specifics of the NSA program, and yet you feel confident to opine that the Administration "simply decided to violate the law." Given everyone's lack of knowledge of the technology that is involved and how it is applied, it is striking that you are so quick to condemn the Administration as lawbreakers. What hubris!
I also find your repeated characterization -- both here and on the conlawprof listserve thread -- of the In re Sealed Case dictum as being simply a throwaway line by Judge Silberman to be troubling. As you well know, the decision was rendered per curiam by a three-judge panel, and yet you treat the other two well-regarded members of the panel as being essentially irrelevant. What hubris! Even a cursory review of the oral argument transcript -- available at http://www.fas.org/irp/agency/doj/fisa/hrng090902.htm -- reveals that Judges Guy and Leavy (particularly Judge Leavy) were as active in their questioning, if not more so, than Judge Silberman. Perhaps you are correct that the language in question was drafted by Judge Silberman, but it was joined by the other members of the panel and merits respect as the decision of a court, not of an individual. You ordinarily bring a lot of rigor to your analysis, but your argument here is really quite flabby.
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