an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Iraqi Constitution is looking better all the time
My friend Sandy Levinson has pointed out that under the new Iraqi Constitution passed with the blessing of the Bush Administration, the NSA spying program would be unconstitutional. Article 38 provides:
The freedom of communication, and mail, telegraphic, electronic, and telephonic correspondence, and other correspondence shall be guaranteed and may not be monitored, wiretapped or disclosed except for legal and security necessity and by a judicial decision.
Well, it looks like we are bringing freedom to Iraq. Now if we could only get some of that freedom here in the United States. Posted
by JB [link]
Ha, ha, very funny. Prof. Balkin, everybody knows the fact that justifies different treatment of this issue in each country: the US is at war and Iraq isn't. Or is it the other way around? Or are both at war against Al Qaeda? Or are both at war against each other? Or aren't either one of them at war? Or ... Indeed, the last exit from a completely absurd situation is to try to see the irony in it.
randomopinion may have spoken with tongue in cheek, but has nevertheless put a finger on an essential point with the words, "the US is at war and Iraq isn't." There is not, as yet, a declaration of war by either nation. The AUMF is not one, because it doesn't recognize any nation on which to declare war. We didn't have declarations for Korea or Viet Nam, either, agreed--and we have wound ourselves into knots trying to describe those conflicts in legal terms. We know that we have deployed an army, and have lost more than 2,000 troops in Iraq, with another 3,000 people on 9/11 (the Iraqis have lost 30,000)--but are we indeed, legally at war? And if we are, then how would we know if we cease to be at war?
The question has relevance because it relates to the suspension of civil rights. We suspended civil rights when we detained Americans of Japanese ancestry during WWII, but it was a bit more tolerable because it was temporary, and the war was over in three years. Our Civil War, which I hope we never repeat, took four years, and yet we know that Lincoln, one of our most revered Presidents, suspended rights. This war on terror is already longer than either of those, and we are assured it will take many more years to resolve. We faced a similar situation in Viet Nam, and eventually came down on the side of reining in Nixon's "national security" wiretaps. Are we willing to suspend some rights for a little while? Perhaps—in the same sense that we may be willing to tolerate rationing in the face of an emergency, and only for a limited time. But that's not the same question as suspending those rights for the foreseeable future. If we are surrendering our rights on even a temporary basis, then surely, there should be unmistakable consent to that suspension, which rights are or are not suspended, and on what terms, including for how long the suspension will endure.
Except that the only real argument against the NSA program is that it violates the statutory provisions set forth in FISA, not that it fails to provide for a judicial decision. That is, no one seriously thinks that Congress couldn't amend FISA to expressly provide for the NSA program.
The "clever" point appears to be that, under our constitution, we've never been free (because Congress and/or the Executive has this power). Which is more silly than clever.
Surely the "security necessity" would be the justification cited by the current administration. For all the pointed comments about parsing language during the Clinton years, this group in power could teach Clinton lessons.
Are these clauses meant to be additive: the surveillance has to be a legal necessity and a security necessity and judicially authorized? There can't be much surveillance that passes that test because legal action against serious security threats (Bin Laden, say) usually isn't feasible, whereas legal threats (the Mafia, say) aren't usually true threats to national security. Or are they alternatives?
Well, let's not bother with careful analysis when Bush-bashing is possible.