Friday, August 17, 2007

Marty and Orin on the Air


Over at, you can watch our own Marty Lederman and Orin Kerr of the Volokh Conspiracy discussing, among other things, the new FISA bill.

It's so good that even Attorney General Gonzales will be listening in. (Well, actually, he always is.)


Always nice to see two people intelligently blogging different sides of an issue while still similing.

Bloody wonderful discussion, Marty. Of course the ridiculous part is that you(we) are dealing with a program we know nothing about. And when we argue about how to contain it properly, the two teams on either side of the argument generally fall into two groups. One group believes this is a well-run republic and we should just get on with the job of protecting the well-run republic from its external enemies; the other group believes we are living in a dying democracy, badly wounded by a dubious election in 2000, and having the life sucked out of it by a venal politicalleadership whose government functionaries can't be trusted with anything, much less a surveillance program which we can't know enough about to judge whether it's over the limits or not.

It's Orin's trusting smile vs. Marty's inquiring, worried eyes.

I enjoyed the discussion, if only to be able to place faces onto familiar names.

It did at least identify the really hard policy question about FISA, obfuscated in 1978, which is whether we want to allow government interception of our international communications with few statutory safeguards.

In practice, FISA allowed much of that before, enabled by clever, secret interpretation of public law, but that effect has been overcome by shifts in technology. "Modernization" is worth serious consideration, but debating it seriously needs more transparency, and an examination of how technological changes affect both sides of the balance betweeen security and privacy. Modern networks pose new challenges for government surveillance. But at the same time the marriage of networks and databases enables a whole new level of snooping that the older law does not address well. So the whole balance needs thorough reconsideration.

Such serious and transparent debate certainly did not occur in the way the PAA was rammed through Congress. It may or may not occur when more permanent legislation is considered.

Such issues were touched upon, but barely explored, in the bloggingheads encounter. Marty raised them generally. But Orin kept redirecting discussion to a narrow scenario starting with a known, targeted terrorist abroad, a scenario that kept the debate from grappling with the troubling general issues.

I wish the professors had addressed how the broad language of new section 105A relates to, or stands alone from, section 105B, and whether the oversight methods in the latter section are really just optional for the government. As for the new warrantless "directive" authority granted by 105B, I thought Orin dismissed its effects far too breezily to be persuasive.

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