Bush and the Warrantless Wiretaps: Some Thoughts
I saw this story early yesterday morning, but didn't post about it.
[A]
Fascinating biographical note: wiped out from too little sleep, my first thought about it went something like this: Jesus Christ! This guy is completely out of control! This is an outrage! Is the U.S. going to become a police state or what? But then outrage fatigue (and regular fatigue) set in and I thought: Why should this surprise me? This is of a piece with the way this administration has operated since the beginning. This is no different than innumerable other outrages, and it will pass almost entirely without comment. Guess I'd better just start getting used to it.
Turns out this may not be true. People may be getting genuinely pissed about this one. My guess is that two forces are fighting it out in the U.S. right now: outrage fatigue vs. the mounting weight of evidence that there is something deeply immoral and unAmerican about this administration. The question now may be one of whether the outrage or the outrage fatigue wins out.
[B]
Let me try to be as fair as possible to the President here. These wiretaps by the NSA are, as I understand it, supposed to be authorized through the Foreign Intelligence Surveilance Court. Some, however, say that the FISC is too stingy with warrants. This is, of course, possible. If the court sets the standards for obtaining a warrant too high, and if it is, in fact, legal for the president to authorize such wiretaps, and if he did it only in cases in which the wiretaps were clearly important, then he may, in fact, have done the right thing.
The problem, of course, is that this president has given us many reasons to mistrust his judgment--especially on matters such as this one--and we have been given no good evidence to believe that the FISC was not doing its job competently. Given the authoritarian tendencies of this administration, the smart money--given what we know now--has to be on the proposition that the president overstepped his authority. But we don't have enough evidence to make a reliable judgment on this question at this point. As for the question of whether he even has such legal authority, well, I'm not competent to make any judgment at all about that.
[C]
Finally and perhaps most importantly, though, I want to express my outrage at the fact that the administration is once again playing the fear card. Their response to these revelations has been to assert that the Times story has compromised national security. This seems like unadulterated bullshit. Terrorists were already no doubt aware of the fact that wiretaps could be conducted. And the warrants issued by FISC were not made public. To do so would, of course, be stupid. Terrorists have learned nothing important by learning that it is the president rather than FISC that is authorizing wiretaps. This information is important for Americans to know, and it tells the terrorists absolutely nothing of value, nothing important that they didn't already know.
[D]
This is, again, of a piece with this administration's general response to dissent: oppose invasion and you are helping the terrorists; disagree with the war strategy and you are helping the terrorists; advocate troop withdrawal and you are helping the terrorists; oppose the "Patriot" Act and advocate civil liberties and you are helping the terrorists; object to immoral and possibly illegal secret searches and wiretaps and you are helping the terrorists. Question the president in any way and you are helping the terrorists.
Sometimes I think that it's not so much any single action by these people that I oppose, but, rather something very general about their character, their conception of America, and their response to disagreement and dissent. Authoritarian tendencies exist in every country--including America--and sometimes I fear that this administration is an expression of and advocate for those tendencies here.
I saw this story early yesterday morning, but didn't post about it.
[A]
Fascinating biographical note: wiped out from too little sleep, my first thought about it went something like this: Jesus Christ! This guy is completely out of control! This is an outrage! Is the U.S. going to become a police state or what? But then outrage fatigue (and regular fatigue) set in and I thought: Why should this surprise me? This is of a piece with the way this administration has operated since the beginning. This is no different than innumerable other outrages, and it will pass almost entirely without comment. Guess I'd better just start getting used to it.
Turns out this may not be true. People may be getting genuinely pissed about this one. My guess is that two forces are fighting it out in the U.S. right now: outrage fatigue vs. the mounting weight of evidence that there is something deeply immoral and unAmerican about this administration. The question now may be one of whether the outrage or the outrage fatigue wins out.
[B]
Let me try to be as fair as possible to the President here. These wiretaps by the NSA are, as I understand it, supposed to be authorized through the Foreign Intelligence Surveilance Court. Some, however, say that the FISC is too stingy with warrants. This is, of course, possible. If the court sets the standards for obtaining a warrant too high, and if it is, in fact, legal for the president to authorize such wiretaps, and if he did it only in cases in which the wiretaps were clearly important, then he may, in fact, have done the right thing.
The problem, of course, is that this president has given us many reasons to mistrust his judgment--especially on matters such as this one--and we have been given no good evidence to believe that the FISC was not doing its job competently. Given the authoritarian tendencies of this administration, the smart money--given what we know now--has to be on the proposition that the president overstepped his authority. But we don't have enough evidence to make a reliable judgment on this question at this point. As for the question of whether he even has such legal authority, well, I'm not competent to make any judgment at all about that.
[C]
Finally and perhaps most importantly, though, I want to express my outrage at the fact that the administration is once again playing the fear card. Their response to these revelations has been to assert that the Times story has compromised national security. This seems like unadulterated bullshit. Terrorists were already no doubt aware of the fact that wiretaps could be conducted. And the warrants issued by FISC were not made public. To do so would, of course, be stupid. Terrorists have learned nothing important by learning that it is the president rather than FISC that is authorizing wiretaps. This information is important for Americans to know, and it tells the terrorists absolutely nothing of value, nothing important that they didn't already know.
[D]
This is, again, of a piece with this administration's general response to dissent: oppose invasion and you are helping the terrorists; disagree with the war strategy and you are helping the terrorists; advocate troop withdrawal and you are helping the terrorists; oppose the "Patriot" Act and advocate civil liberties and you are helping the terrorists; object to immoral and possibly illegal secret searches and wiretaps and you are helping the terrorists. Question the president in any way and you are helping the terrorists.
Sometimes I think that it's not so much any single action by these people that I oppose, but, rather something very general about their character, their conception of America, and their response to disagreement and dissent. Authoritarian tendencies exist in every country--including America--and sometimes I fear that this administration is an expression of and advocate for those tendencies here.
posted by Winston Smith at
11:18 AM
4 Comments:
There are stats on the FISA Court's denial and approval of warrants here, drawn from the annual reports to Congress, since the Court's creation in 1979.
The numbers are a bit wonky, since it looks like there were a number of applications pending before the court in the first year of its existence which weren't filed in accordance with the correct procedure, but counting things up, I only see two applications which were wholly denied (both in 03), and around three which got dismissed due to mootness or which the gov't withdrew before a ruling came down.
Although NB that in somewhere around 5% of recent cases, the Court has made modifications to the request before approving them.
Still, in light of the above, I view the contention that NSA needed more flexibility because the statutory process was too biased against intelligence activities to be very hard to credit a priori. It could certainly be the case that the agency was running into e.g. timing issues, but from everything I know of the FISA court, it has expedited procedures and robust processes to ensure the integrity of classified information, so vague bromides about how the warrant requirement is in general burdensome carry very little persuasive weight, to my mind.
Oh, and as long as I'm posting, I should point out one detail in the Times piece, which mentioned that the story had been spiked for around a year due to White House concerns. The story also notes that there was controversy swirling around the program which prompted Congressional involvement and modification in mid-'04, which I'm fairly certain is what led to NYT getting the lead (outraged Congressional staffers, etc.) Granted that following up on leads can take a very long time in these kinds of sensitive situations, I'm still guessing that the first run at the story would have been ready to go slightly more than a year ago. As a result, my cynical side is guessing that the White House might have played the national security card in order to delay the story coming out right before the election... Pure speculation, of course, but it does fit the playbook.
It's a bummer that THIS incident might end up being the last straw for many people: as if all the torturing and extraordinary rendition and black sites and dozens of dead "detainees" were A-okay since they were foreigners and at least had a 50% chance of being freedom-hating terrorists, but having the NSA wiretap Americans is just too much. But hey, I just hope there IS a last straw.
James Wolcott has a quote up right now from Gore Vidal, when asked if Americans would stand for a military dictatorship. "Of course. They'll stand for anything. And they'll stand for nothing." In dark moments, it's difficult for me to deny the truth of this.
Um, do we have to choose one wacko group or another?
In general, I'm anti-wacko.
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