Asymmetrical Information

Let me get this straight. The President of the United States has admitted to bypassing the rule of law in order to spy on American citizens -- and as an avowed libertarian, you're... trying to make the point that torture is no more illegal than the minimum wage? What fucking side are you on here, if not the Republican Party's?

What rule of law? FISA? Constitutional scholars on both sides have stated over and over again that FISA does NOT trump the President's Executive powers to order the conduct of foreign intelligence collection. Sure, it's a nice set of guidelines that in a perfect world where everyone got along and nobody flew planes into buildings, it might just make sense all of the time. But it is simply not binding.

To be a little less obtuse, what is maddening about this post is that it implicitly puts partisan loyalty above loyalty to the principles to the Constitution. It shows that you are, on some level, satisfied by the Republicans' comeback of "But they did it too!" If you really gave a damn about the Constitution, this excuse would make the Republicans look as disgusting to you as the Democrats do. But since you apparently don't, it simply serves as another happy reminder of how Democrats are worse than Republicans, even when Republicans have a monopoly on power and a clear will to abuse it.

Jeez, guys, lighten up. Were Jane and I the only people to see this as an endorsement of orginalism rather than torture? With a little wit thrown in as well.

Neil, you're completely missing the point, which is not that "the constitution is a living document" but that it is *not* a living document IMHO. Am I just as outraged by eminent domain abuse as by fourth amendment violations? Why, yes I am. That's a libertarian position.

If we substitute "liberals are claiming that President Bush has violated the law of the military and FISA" in the beginning of Tabarrok's sentence, his argument falls apart.

If you take cranberries and stew them like applesauce they taste much more like prunes than rhubarb does.

If the constitution does not allow us to spy on our enemies, then it needs to be amended.

Groucho marx-
my point was that liberals are also claiming that Bush violated the FISA, and the law of the military, with his NSA actions and his use of torture, respectively. What Tabarrok is doing is committing a simple straw man fallacy.

I would say what Tabarrok is doing is making a joke, and not a bad one. If you think it hits only your political party, or only the other one, you missed the joke.

And if you think it is a political statement framed as a joke, yeah, that is probably fair too.

It's not a really good joke, because (1) hypocrisy charges obviously cut both ways, and (2) he's wrong on the merits.

(1) Even accepting Tabarrok's frame, why aren't the "Constitution in exile" Bush defenders the hypocrites, or those who think the Constitution gives us the right to bear nuclear weapons?

(2) Saying that Constitution is open to interpretation is not the same as saying that every interpretation is valid. Moroever, I wasn't aware that Jefferson making the unconstitutional Louisiana Purchase opened the door to everyone in America being able to commit whatever crimes they wanted. I mean, please.

Whoops, I need to learn how to read. Obviously Tabarrok's comment cuts both ways. I'm a dumbass.

Could we just once draw a line in the concrete on these issues? It seems the lines in the sand keep getting washed away by the next high tide..

> why aren't the "Constitution in exile" Bush defenders the hypocrites

Feel free to cite an actual believer of the so-called "Constitution in exile" philosophy. Bonus points if said person has ever used the phrase. (As Volokh has pointed out, CiE is a strawman created to score some rhetorical points.)

>or those who think the Constitution gives us the right to bear nuclear weapons

Again, feel free to cite an actual believer. Note - folks who say "the 2nd can't protect private ownership of handguns and rifles because that would mean it also protects nukes" don't count.

As an american gun owner, all I can say to the new group of people worried about the government trampling on your constitutional rights is "Welcome to the party, pal!"

Oh, my, people are in a twit because the NSA intercepting phone calls into and out of the U.S. They've only been doing that for 40 or 50 years now, folks. It's no secret.

What the current fuss is about is that the NSA is listening in on PARTICULARIZED phones, which they've been doing without warrants (but with Presidential permission) for only some 25-30 years. Those people against the president think that FISA somehow limited or pre-empted the presidential powers inherent in the duty to protect our country, but as far as I can tell, there are two lines of legal authority governing these sorts of wiretaps: (1) FISA, and (2) inherent presidential power. The pres can use either one or both depending on the circumstances.

Yawn.

I am an originalist and a beliver in the constitution in exile.

The first time SCOTUS confronted a wiretap, they held that it was not a violation of the 4th amendment. The idea that a wiretap is a fourth amendment issue was an invention of the notorious Warren Court. A careful reading of the 4th amendment will reveal that warrants are not a pre condition of searches. Only unreasonable searches are forbidden by the amendment. Reasonableness is a matter of proportion of situation and action, means and ends.

Rex-

Thats all well and good but, you are assuming the President is authorizing these wiretaps to protect the country. While that may be true, it may also not be true. The question is, why did he pursue the wiretaps wihtout a warrant? If there is reasonable evidence that he did it to protect the country, then fine, case closed and lets move on. But lets find out the facts first rather than obsequiously and complacently assuming that the President in no way could authorize warrantless wiretaps for the wrong reason.

Does anyone look at the volokh conspiracy? They have just about beaten this thing to death with some really good legal analysis that even a non legal type like myself can understand. Next please.

Rick,

He didn't pursue a warrant because he didn't have to. Why should he jump through procedural hoops when he has the authority without it?

Robert Schwartz, speaking of Volokh (as someone did after your posting), you might want to have a word with them, since they've done several long, mocking pieces insisting that there is absolutely no such thing as a "Constitution in exile" movement. I myself don't know one way or the other, though.

(The second rule of Constitution in Exile: you DO NOT TALK ABOUT CONSTITUTION IN EXILE!)

Tabarrok's "strawman" is no strawman at all. If the living Constitution can sprout penumbras and emanations which prevent state legislatures from banning abortion, why can't it also sprout penumbras and emanations which prevent Congress from banning warrantless surveillance?

Richard Cook-

from Orin Kerr @ Volokh:
"Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. 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."

Doesn't look like the case is settled to me.

Question; If the government has the right to stop and search my person and my property at the border, why would it not also have the right to stop and search my data packets at the border? If a warrant is required for the latter, then why not the former?

Or perhaps we could simply post a warning;

"Warning! Your transmission is about to enter US territory and is therefore subject to search and seizure by the NSA. Do you wish to continue this transmission?"

Randy-

A clause in the 4th amendment grants that right to the government to monitor tranmissions across its border, or its effective border. This is why they can search your stuff when you leave the country or come back on a plane. All that you are saying is that it is not unconstitional for the government to search transmissions accross borders. This is probably true in regards to information, and definately true in regards to airplane travel. However, and this really doesn't need to be stated, if something is constitutional it does not mean it is legal. This is why what the NSA and the president did is probably constitutional, but it probably violated FISA and therefore is probably illegal.

Also, there are some hairy issues when we get into the transferring of data packets. For example, a data packet in a domestic to domestic transmission over the internet may travel outside the country and then come back. As you can see, it could get messy.

Rick - Thanks, Good answer!

Thanks Randy.

I think the FISA law was enacted in 1978 ( I don't feel like checking), and in that time technology has changed ALOT (understatement- I know).

The lesson to learn from this whole discussion about the NSA, the President, and FISA is that we NEED new laws that are clearly defined and can adapt to changing technology.

Rick,

What you are overlooking is that anytime a law conflicts with the constitution, the constitution wins. It is a non-sequitur to say that an action is constitutional but illegal.

The lawyers for four presidents (Reagan, Bush, Clinton, & Bush and maybe even Carter) have stated at one time or another that the president has the inherent power to listen in on cross-border conversations without a warrant. And none of the Supreme Court rulings have been contrary to this; one case even assumed this to be true before deciding a slightly different issue.

Has the Supreme Court ruled DIRECTLY on this issue? No. But it is hard to see how such a case would ever come up before them--who would have standing to sue?

What you are overlooking is that there is no conflict of FISA and the constitution.

The lawyers for four presidents (Reagan, Bush, Clinton, & Bush and maybe even Carter) have stated at one time or another that the president has the inherent power to listen in on cross-border conversations without a warrant

There is a huge difference between listening to cross border conversations without a warrant, and collecting large amounts of information about phone calls and screening them for specific criteria, aka data mining.

What you are overlooking is that there is no conflict of FISA and the constitution

There are two potential conflicts. The first is that, arguably, none of the enumerated powers of Congress gave it the authority to pass FISA in the first place. The second is that FISA arguably restricts the Constitutional powers of the executive branch without use of a constitutional amendment, and thus is invalid as law.

There is a huge difference between listening to cross border conversations without a warrant, and collecting large amounts of information about phone calls and screening them for specific criteria, aka data mining

Which of the two are you saying is illegal?

The second is that FISA arguably restricts the Constitutional powers of the executive branch without use of a constitutional amendment, and thus is invalid as law.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Where does this give the executive the right to listen to my phone calls without a warrant? If anything, FISA is unconstitutional because it lets Chimpy's goons spy on me for 72 hours before obtaining a warrant.

Sick,

You're looking in the wrong place. One of the enumerated powers of the president is national security. When you have two parts of the constitution that could apply to a given set of facts, the courts decide which one applies. The courts have decided (so far) that the enumerated powers of the president in national security matters is what applies.

And they can't listen in on your phone calls without a warrant UNLESS (1) it is an international call and (2) they have reason to believe that either the domestic person on the call or the foreign person on the call is involved in matters contrary to the national security of the United States.

Sick,

You seem to be saying that listening to a phone conversation between you and somebody in another country, while we're at war, is an unreasonable search. Well, that's an interesting claim, but I don't think it is very well-supported by either precedent or the Constitution itself. If they were wiretapping *domestic* phone calls without a warrant, you'd be on much firmer ground.

Also, you might want to learn what "fascism" means before using it to describe anything.

Sick, if you or I are communicating with the enmemy, we are no longer simply, "the people". We are agents of the enemy and any search would be reasonable.

Do you guys think that cell phone conversations are persons, houses, papers or effects?

The executive does not have "inherent authority" to violate congressional law. That is 100% preposterous. That preposterous argument, interestingly, begs the question: if the exec. did have that power, why didn't he use it before 9/11 occurred? I won't bother going any further with that because, bottom line, if a federal law sets out the required procedure for doing something and any person, or president, does that something without following that procedure, the law has been violated.

FISA allows domestic wiretapping, subject to review by a secret court which issues the warrants. This court oversight ensures that the executive is ordering spying on bad guys, or at least potentially bad guys, instead of, say, you or your family or leaders/candidates within the oppositiong political Party or civil rights activists. FISA was enacted and the court set up to avoid precisely this conduct in the wake of the COINTELPRO scandal. Bush's "practical" argument is that FISA did not allow him to act with sufficient speed and "flexibility" in surveilling bad guys. However, as someone noted earlier in this thread, FISA in fact allows surveillance to begin and continue for three full days before a warrant must even be sought. How much more "flexibility" is needed? Clearly, Bush wants the kind of flexibility that comes with being able to spy on any U.S. citizen that he chooses to without anyone even knowing about it, let alone authorizing it as a legitimate act. Why doesn't that concern people? Even if you are one of those folks who just think Bush is a well-intentioned good old boy who wouldn't do anything untoward, don't you realize that some unknown quantity will be president in the near future?

As far as legal arguments go, the "inherent authority" one has been downplayed by the exec. significantly recently, probably because the second prong of the "practical" argument was that had they had this capability, they probably could have prevented 9/11 (See discussion above). The second prong of the "legal" argument is that the authorization from Congress to make war. I am too lazy to Google the text of that authorization but do it and tell me where it says in there "and spy on anyone in the U.S. with zero oversight". When Congress intends to have a new law trump an old one in the case of a conflict, they say so, expressly, in the new law. It says nothing of the sort. Gung ho "war on terror" advocates be warned - this country has more to fear from an unscrupulous executive who feels that he (or she) is above the law than we have to fear from Osama Bin Laden (and certainly from Saddam Hussein).

How does everyone feel about Bush saying this in a speech in New York in April 2004:

Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires-a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

No matter whether it can be argued that the President doesn't have to ask for warrants on wiretaps Bush certainly seems to be saying that he does have to ask. I'm curious as to how Bush thinks there are constitutional guarantees that say he must acquire a warrant if he also believes that those constitutional guarantees simply don't apply to him.

It's statements like this one, various statements made by Clinton, Bush Senior, Regan, etc that make me wish that whenever the President addresses the citizens in any form he must be under oath. I think there should be national security exemptions but they come in the form of not bringing something up, as opposed to flat out saying the opposite of the truth.

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