I haven't blogged about the whole NSA surveillance story, because, frankly, the combination of not knowing exactly how this procedure worked along with not having the legal background to understand all the laws and precedents seems to dictate that I shouldn't be pronouncing on this. In fact, I wish that most non-lawyers would just calm down before they start pronouncing this some terrible expansion of presidential power. And given, that we don't know much about whom was eavesdropped on and for how long and if a warrant was sought at some point after the fact, it seems that we have ignorance compounded in some of the discussion on TV and on blogs.
But it has been fascinating to read some of the reaction in the blogosphere. For me, the most helpful thing has been reading
Orin Kerr's post at the Volokh Conspiracy. Here is his conclusion,
My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act. My answer is extra-cautious for two reasons. First, there is some wiggle room in FISA, depending on technical details we don't know of how the surveillance was done. Second, there is at least a colorable argument — if, I think in the end, an unpersuasive one — that the surveillance was authorized by the Authorization to Use Miltary Force as construed in the Hamdi opinion.
Read the rest. It is definitely not a clear cut call for either side.
Hugh Hewitt has been posting up a storm arguing that a president does have such powers. I have no idea what the ultimate reading of the law and Constitution would tell us.
One question that a lot of people have raised is why would the Bush administration do this warrantless surveillance if they could just go to the FISA court and get a warrant since the FISA court seems to be very accomodating when the Executive branch asks for such warrants.
Byron York explains why the administration didn't want to go through the FISA courts to get these warrants. Apparently, it is not the FISA courts themselves which are the hold up, but the delay comes in compiling all the paperwork in order to get that warrant.
People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check." And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things.
Such delays continue to this day, despite the Patriot Act. Even the sainted 9/11 Commission was worried about such delays.
The Patriot Act included some provisions, supported by lawmakers of both parties, to make securing such warrants easier. But it did not fix the problem. In April 2004, when members of the September 11 Commission briefed the press on some of their preliminary findings, they reported that significant problems remained.
"Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act, or FISA, the application process nonetheless continues to be long and slow," the commission said. "Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance. The Department of Justice and FBI are attempting to address bottlenecks in the process."
It was in the context of such bureaucratic bottlenecks that the president first authorized, and then renewed, the program to bypass the FISA court in cases of international communications of people with known al Qaeda links.
It seems that if Congress is so worried about their powers being infringed upon by the administration conducting such surveillance without warrants, that the answer is to pass a new law expessly forbidding it. So many of them seem on their high horse complaining about the President signing such orders. Apparently,
Tom Daschle is now saying that he was briefed on this and that he raised objections. If he thought it was such an abrogation of power, why didn't he introduce a law to take that power away from Bush? In 2002, when it seems Bush first signed off on this, Daschle was still the Majority Leader in the Senate. Why didn't he protect all those people whose rights everyone is worried about?
I have no idea if what Bush did was Constitutional or not. It seems that well educated law professors can have differing opinions. And, probably, if the question were to come before the Supreme Court, the justices would disagree; it might be another 5:4 issue.
What does seem clear is that this is not going to be an issue that plays to the Democrats' strengths.
John McIntyre has a political analysis of this and he points out that the Democrats lose when they get the whole focus on security and terrorism.
Not recognizing the political ground had shifted beneath their feet, Democrats continued to press forward with their offensive against the President. They’ve now foolishly climbed out on a limb that Rove and Bush have the real potential to chop off. One would think that after the political miscalculations the Democrats made during the 2002 and 2004 campaigns they would not make the same mistake a third time, but it is beginning to look a lot like Charlie Brown and the football again.
First, the Democrats still do not grasp that foreign affairs and national security issues are their vulnerabilities, not their strengths. All of the drumbeat about Iraq, spying, and torture that the left thinks is so damaging to the White House are actually positives for the President and Republicans. Apparently, Democrats still have not fully grasped that the public has profound and long-standing concerns about their ability to defend the nation. As long as national security related issues are front page news, the Democrats are operating at a structural political disadvantage. Perhaps the intensity of their left wing base and the overwhelmingly liberal press corps produces a disorientation among Democratic politicians and prevents a more realistic analysis of where the country’s true pulse lies on these issues.
I just don't think that going to the people and saying that they don't want NSA listening to people who are talking to Al Qaeda operatives overseas is going to be a big political plus. Sure, they'll dress it up as protecting people's rights and try to sell people that Bush's administration has gone from wanting to find out what books they're checking out to listening in on their phone calls. I just don't think that that is a political winner of a campaign platform. Sure, people get upset when politicians keep telling them that our rights have been abridged. However, most of the people who fear the Bush administration overreaching in the war on terror already don't like Bush. I just bet that the great numbers of people in the middle are more afraid of Al Qaeda than they are of NSA listening in on their phone calls.