Kristy’s post about USA Today’s revelation that the National Security Agency has a “massive database of Americans’ phone calls” has caused quite a stir here on the blog. I haven’t weighed in until now, largely because I wasn’t quite sure what to think at first. I rarely, if ever, am persuaded by the argument “it doesn’t affect me, so why should I care?” or its ugly stepsister, “Trust the government — there’s no way they’ll have the time, energy or resources to abuse their power!” Both of those arguments are almost universally craptastic. The loss of anyone’s liberty should be of concern to everyone, and the government should never simply be “trusted” not to abuse its power. But this post offers a rather more nuanced defense, which I find significantly more persuasive:
Nobody is recording your phone calls as USA Today would have you infer from the headline. No, they simply keep records that note that 202-555-5555 made a 4 minute call to 919-555-5555 on May 11 at 3:30 PM. In other words, this NSA program collects nothing more than the phone companies already do for billing purposes, it simply consolidates various phone company databases to paint a picture of communications patterns within the United States.
Why this is even considered a secret is somewhat puzzling. I always assumed such a program had existed for years. I would have thought that something similar to this database would have already existed at the Federal Communications Commission, various internet governing and other federal and private organizations interested in communications trends and forecastings.
Leslie Cauley tries to make the program sound sinister by saying it doesn’t go though a FISA judge. I fail to find that intimidating. I get the exact same level of detail every month in from Verizon. Is Cauley suggesting I need a FISA court judge to approve my phone bill?
If that summary is accurate — if this “database” is really nothing more than a national “phone bill” of sorts — then yeah, what exactly is the problem? Isn’t this precisely the sort of “data mining” that we wanted the government to be doing? Isn’t this what we demanded after 9/11? John McIntyre makes this point explicitly: “Many of the people decrying these violations of civil liberties are the same ones who ripped the government for its inability to ‘connect-the-dots’ prior to 9/11.” Having just seen United 93, which is a searing, damning indictment of the government’s inability to connect the dots in a timely fashion — even as the attacks were actually unfolding before their eyes — I find this point particularly salient at the moment.
One question this brings to my mind, in response to the folks who are so upset about this program, is: What, exactly, is it that you think the government should be doing to stop potential terrorists already inside this country from carrying out attacks? We don’t magically know, in advance, who the terrorists within our country’s borders are; one of the NSA’s key jobs, fundamentally, is to find out. Seems to me, this program’s purpose is to help investigators do just that, giving officials a robust database of information that they can use to track suspects’ “social networks.” Suppose, for example, the FBI identifies the next Mohammad Atta. Obviously, it’s very important to know who he’s been in contact with. Before this program, they’d only have information going forward from the point they realized that he might be a problem. Now, they can call the NSA and say, “Hey guys, we need a list of all the phone calls this new terror suspect has made over the last few years.” Such a list, it seems to me, will allow them to much more quickly advance their investigation — and speed is very important with things like this. (Imagine, if you will, that Mohammed Atta had been discovered on September 10. You see my point?) The existence of this database seems like it would allow law enforcement to both rule potential suspects in and, just as importantly, rule non-involved parties out, thus both expanding and narrowing the probe, and doing so quickly. Isn’t that, like, good?
If they were actually wiretapping domestic phone calls willy-nilly, I would definitely have a problem with that. (Please note: a phone call between an overseas location and a location in this country is not “domestic,” it’s “international” — and there’s no indication that it’s happening “willy-nilly” anyway — but I’m not expressing an opinion here about that NSA program, I’m just trying to anticipate the obvious, and incorrect, counterarguments to what I just said.) But simply compiling already-available information into a usable form, so that they can better pinpoint what’s going on? So that if they identify a terrorist suspect, they can more quickly ascertain who he’s been calling, where and when, thus allowing them to get the necessary wiretap warrants (yes, warrants are still required on truly domestic conversations) without a long, potentially deadly investigative delay? None of this sets off alarm bells in my head.
Should it? Maybe so. But someone’s going to have to convince me. I’m most definitely open to a valid, logical counterargument. (Hint: such an argument should not proceed from the premise that anyone who supports this program is “retarded” or that no one who cares about civil liberties could possibly support it. That’s what we call preaching to the choir and insulting the opposition; it won’t get you anywhere with anyone, except perhaps those who already agree with you.)
I’m also very much in agreement with McIntyre’s concluding point:
[The possibility of another terrorist attack on American soil] is something true civil libertarians should think long and hard about. The more vigilant we are today in preventing attacks, the more it will pay off in spades in terms of protecting our civil liberties in the future. Because if this country gets hit with a small nuke and 30,000 or 100,000 Americans die, all of the debating will be over. The ensuing crackdown will be massive, and the loss of REAL civil liberties will become very, very possible.
To be clear, I am not advocating that anything and everything can be justified on this basis. So please don’t pull out the Orwellian card on me: “War is peace, freedom is slavery, and we need to violate civil liberties in order to defend civil liberties.” I’ve heard it all before, and it’s not going to persuade me because that’s not what I’m saying. If this is a genuine and serious affront to civil liberties, then I will oppose it. But I’m not seeing yet how that’s the case. My impression is that this “database” is, at most, nothing more than a small, minor, petty, extremely insignificant affront to civil liberties. And a mindset which holds we must never surrender any liberties, no matter how small, in order to further our security, is a mindset which does not understand the reality of the threat we face. Again quoting McIntyre:
In the run up to the 2004 election I debated a very left-wing professor who went on and on about how the Patriot Act was essentially a reincarnation of Gestapo or KGB tactics. I responded that I was of course concerned about individual liberties and the unfettered power of the state, but that in the post-9/11 world there is a balancing act between liberty and security, and that I would be more sympathetic to critics of the Patriot Act if they could point to specific cases of abuse. Show me the real alive Jane and Joe Americans who have had their liberties violated in some grotesque manner by the Patriot Act. Needless to say, the professor moved on.
Freedom and security exist on a continuum. This is absolutely undeniable. The trick is to strike the proper balance. Ben Franklin had it right: “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.” Is the “liberty” of being free from governmental oversight of the sort of data that phone companies already have, really an “essential” liberty?
For me, a key question is what authority the government has to go beyond the data contained in this database. Suppose, for instance, they identify some terrorist suspects using this database. Presuming the phone calls in question are domestic, they would then need to obtain a warrant in order to actually wiretap the relevant phone lines, correct? I’m not under the impression that this program changes those rules at all.
Again, I’m open to persuasion on this issue, I really am. But if your argument proceeds from the premise that I’m an idiot (or a right-wing shill, or a DINO, or whatever) for even asking these questions, I’m not going to pay attention, obviously. And it would be wise, in responding to my concerns, to keep in mind that the converse of Ben Franklin’s quote is also possible. Given the undeniably and inevitably devastating effect that “another 9/11″ — or, worse, a “9/11 with WMDs” — would have on civil liberties in this country, it’s important to remember that, just as we ought not give up essential liberty to secure a little temporary security, we also ought not give up essential security to purchase a little temporary liberty.
P.S. For the record, I’m not attempting to make an argument about whether this program is legal. That would require research that I haven’t done. What I’m addressing is whether I fundamentally have a problem with it — whether I think it’s a bad thing for the government to be doing. If it’s NOT a bad thing, and yet is illegal, that would be an argument for changing the law, not for ceasing to do it. Likewise, if it IS a bad thing, and yet is NOT illegal, that too would be an argument for changing the law. The point is, the legality of a given policy is a separate and distinct concept from the policy’s wisdom, and it is the latter, not the former, that I am attempting to address here.
Anyway, I like what James Joyner at Outside the Beltway has to say, largely because it’s basically the same thing that I’m saying:
Obviously, we don’t want the government listening in on our telephone conversations without some really good rationale. But having calling patterns stored in a database to look for patterns? That doesn’t fill me with any particular anxiety.
Now, we don’t want employees of NSA or any agency — including the phone companies themselves — able to pull up individual calling records for the sheer hell of it in order to snoop on their friends, neighbors, celebrities, and so forth. One presumes NSA has some safeguards in place for that sort of thing.
Hmm… does one presume that? I’m not so sure. This, I think, would be a legitimate and important question to ask someone like Michael Hayden. Because I do agree with Joyner: the government shouldn’t be able to commit even small, petty, relatively insignificant violations of our liberty without some rationale. However, the significance of the violation in question obviously changes the calculus, in terms of whether I’ll be satisified with internal “safeguards” or demand external oversight. Given that I’m inclined to believe that looking at individual calling records — as opposed to listening to individual calls — is a fairly insignificant issue, I tend to think that internal “safeguards” are probably sufficient. But those should exist.
Anyway, Joyner continues:
Security and liberty are both highly desirable goals for which we strive. They are, unfortunately, conflicting. Ben Franklin’s dictum, “They who would give up an essential liberty for temporary security, deserve neither liberty or securityâ€? is oft misquoted as an absolute (â€?They who would give up liberty for security, deserve neither liberty or securityâ€?); Franklin was…not that simpleminded.
I am willing to give up trivial amounts of liberty (carrying a passport when traveling abroad, e.g.) when it provides some significant amount of additional security. I balk at even modest surrender of liberty (friskings by government travel agents at the airport) when I feel that the gain in security is negligible.
In this case, I believe the surrender of liberty is infinitesimal while the potential gain in security is huge. If it turns out that my premise is wrong (i.e., there have been some large number of people harassed because of perfectly legitimate calling patterns or other abuses), I am prepared to reevaluate my position.
As am I… but this sort of ridiculous bluster isn’t going to convince me:
Jane H. asks, “Can we call it a dictatorship yet?�
Pretty close, I’d say.
Nor this, from one of my fellow “Blogger of the Year” nominees:
The phone companies were NOT required to turn over our records - Qwest refused - but AT&T, Verizon and BellSouth gave the Mein Kampf salute. Pigs.
Seriously… can someone give me a list of some good, rational, reasonable liberal blogs? I’d love to expand my daily reading list, so that I could get a more accurate idea of the pulse of the blogosphere at any given moment… but I seriously have trouble finding liberal commentary online that isn’t unhinged. This is an honest question: what liberal blogs should I be reading, if I want to hear intelligent, nuanced commentary from the Left?
P.P.S. If you’re interested in the legal issues (which, as I said, is not what I’m primarily concerned with here), Glenn Greenwald looks at them in some detail.
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Categories: Terrorism & Homeland Security
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May 11th, 2006 at 11:18:53 pm
OK, David. You’re on center stage. This one’s all you, buddy. Let’s hear it. I’ll go ahead and start it for you…
“Here we go again. Just another example of Bush and his merry band of neo-cons…”
May 11th, 2006 at 11:30:43 pm
Griff. LOL!!
May 12th, 2006 at 12:11:24 am
Wow thank you JO and Griff for starting us off with such a civil discussion. Can’t take the heat eh?
Brendan, the problem isn’t that there might be merit in this sort of program. The problem is that the Bush administration has done this by completely ignoring both the Constitution and the law. As I said in the previous post, if someone wants to make the argument that allowing the government to have this information is a good thing and worth doing to protect us from the possibility of a terrorist attack, then fine, make the case and CHANGE THE LAWS to accomodate it. Last time I checked thats how things were supposed to work in this country.
And the argument that you are puting forth ignores just that:
One question this brings to my mind, in response to the folks who are so upset about this program, is: What, exactly, is it that you think the government should be doing to stop potential terrorists already inside this country from carrying out attacks?
Again, its not that we oppose the government developing programs like this that have the potential to help protect us, its that they do so while completely ignoring the fact that they don’t have the legal authority to do so! The same might e said about Bush’s wiretapping program. Its not that I’m opposed to the idea of monitoring communciations potentially involving Al Qaeda members, its the fact that they completely ignored the FISA court in the process.
To your final point, is this really a libery worth worrying about, maybe, maybe not, thats up to each person to ask themselves. And maybe i would be more willing to be persuaded if it weren’t for the pattern of behavior that Bush and those around him have exhibited since they took office. And of course the question should be asked, is giving up little freedoms something we should be ok with? Often times its not one big thign that causes trouble but a build up of a lot of small things.
May 12th, 2006 at 12:14:37 am
Thanks for a balanced post, Brendan. It does, indeed, come down to what “essential” means. The military already proved the value of the data mining in that Atta was identified prior to 9/11. To find the next Atta and prevent another atrocity is beyond even Master Card pricelessness.
But here’s a challenge for you: I’d like to hear about the lack of prosecution for those who reveal the existence of these sensitive and ultimately (as in way, way, way) classified programs. Do we really wish to give the editors of the world the final say-so? Or is it an absolute necessity that the professionals in government, at the behest of the president with the knowledge of Congress, makes the decision whether to reveal methodology in our war against the jihadists?
Somebody, at the end of the day, must have the final say in such matters. Ambiguity results in the current chaos and secrets are revealed pell mell. But some one authority must be designated. In the current law, the press does not enjoy this status. Should they?
For me, this isn’t a close call. What say you?
May 12th, 2006 at 12:17:12 am
David - the author of the 1994 law that is precisely on point, Victoria Toensing, stated unequivocally on Fox News this afternoon that this data mining was expressly foreseen and approved by Congress and signed by WJC.
Nice try.
May 12th, 2006 at 12:19:10 am
Only one P.S. Brendan? You surprise and disappoint me.
May 12th, 2006 at 12:20:38 am
Dubai badly damaged Bush as a war President. This just might bring it back.
Between the Roberts hearings, the NSA wiretapping, the Alito filibuister, and now this, the Dems (plus Spector) on the Senate Judiciary Committee could be worth three Karl Roves.
Moment of the day: Leahy waving McPaper and going Bizarro McCarthy (”I have in my hand FIFTY-SEVEN phone numbers I know were disconnected!”)
May 12th, 2006 at 12:39:52 am
David, fair enough. If you’re going to stake your criticism primarily or exclusively on the legal grounds, or lack thereof, on which you suspect this program rests (I say “suspect” because, with all due respect, I seriously doubt you’ve researched this issue in detail; I certainly haven’t! … and yes, understanding the law does require research; there’s a reason getting a law degree takes three years!), then fine. But the fact is that 99% of the criticism which is being leveled at this thing is NOT neutral on the issue of whether there “might be merit in this sort of program.” The criticism is taking aim not just at the legality, but at the substance — indeed, in many cases fusing the two together, as (alas) liberals are so often wont to do: confusing what the constitution and the laws say with what they think the constitution and the laws should say. Moreover, 99% of the people criticizing this program (yourself included, I strongly suspect) would oppose any legislation to authorize it, on the basis that it’s an intrusion on our civil liberties. They would oppose such legislation, just as they (and I!) opposed the Patriot Act, without actually reading it or really understanding what it does. Anyway, that’s all an aside. My point is, if you want to argue the legality, fine. As I said in my “P.S.” (which, in fairness, you probably didn’t read before posting your comment), I’m not really interested in the legality at this point. I’m interesting in the substance of the policy — is it good or bad? I’m not saying the legality is irrelevant, mind you; it’s just not what this post is about. I want to know why I should think this policy is BAD.
the question should be asked, is giving up little freedoms something we should be ok with?
I believe I addressed and answered this question in a fair amount of detail in my post. We shouldn’t be willing to give up “little freedoms” for no good reason; but defending ourselves from terrorists is a very, very good reason, and if we aren’t willing to give up ANY freedoms, then we are consciously rendering ourselves helpless in the war on terrorism. Say it with me: Freedom and security exist on a continuum. Freedom and security exist on a continuum. Freedom and security exist on a continuum. Thomas Jefferson was right: it’s the “essential” liberties we safeguard at all costs. Is it possible for a number of small losses of liberty to “add up” to a loss of “essential” liberty? Sure, but that’s an argument you need to make if you want to convince anyone that that’s what’s happening. The argument doesn’t make itself, and I, for one, certainly don’t see a gradual loss of essential liberty happening here. I see a good-faith effort to protect our security with a minimal intrusion on liberty.
May 12th, 2006 at 12:49:56 am
Ed, if what you’re asking is whether I support prosecuting journalists for reporting classified information that they obtain lawfully (i.e., someone else might be breaking the law in giving it to them, but the journalists themselves are not in any way involved in the law-breaking; it simply lands in their lap), the answer is an unequivocal no. Sorry, but you’re not going to get a strong believer in the free press with a B.A. in journalism from USC to start calling for journalists’ heads.
But should the leakers themselves be prosecuted? Sure. I’m pretty sure there are laws on the books for that sort of thing, and I have no problem with them being enforced. That will encourage people who wish to leak information to really, really, really think twice about doing so, because they’ll know they’re taking a grave personal risk by leaking, and thus will presumably only do it if they really, really, really think it’s important for the public at large to know — not just because they have a petty political grudge to carry out.
Prosecuting journalists for reporting the news, however, is terrible, terrible idea. The onus should be on the government to keep stuff secret — if it gets out, the press has every right to report it. Imagine if we had a truly oppressive government (i.e., one as bad as, or even slightly worse than, some of the anti-Bush folks on this blog think we currently have), and some courageous public servant within that government (let’s call him “Shallow Throat”) felt (heh…no pun intended) that it was truly necessary for the public to know what was going on… if that person takes the incalculable risk of getting that information to the press, the government can prosecute him, but no way are they prosecuting the editor of the New York Times. When THAT happens, that’s when I’ll join the anti-Chimpy McHitler brigade and start marching against our fascist government!
That said, I am somewhat inclined to believe that USA Today, as an ethical, self-policing matter, ought not to have reported the name of the phone company that isn’t participating in the NSA program (Quest). Would it really have decreased the value of the information about the government program if they had said, “5 of the 6 largest telecom companies (or whatever the number is) are participating in the program; one has refused to comply, citing legal concerns.” That way, the public gets essentially the same information, but the terrorists don’t get tipped off about which phone company to use!! Journalists have, in the past, exercised good judgment about such things, and I believe they should continue to do so; I’m not sure that happened here.
May 12th, 2006 at 1:00:49 am
Brendan:
Good liberal blogs? Do such things exist? ;)
I haven’t read them recently (mostly because I have enough to read on my plate), but when I read Washington Monthly’s Kevin Drum (formerly Calpundit: http://washingtonmonthly.com/) and Matthew Yglesias (http://yglesias.typepad.com/ - no ), I remember them being relatively hinged. Wrong, in my view, but they don’t leap off into conspiracy land, or when do say stuff that seems odd, they at least make a reasoned argument as to how they got there.
May 12th, 2006 at 1:06:03 am
PS: This is Drum’s post on the current NSA thing - doesn’t jump to conclusions, kinda just reports the facts, and comments on how this will make General Hayden’s confirmation more interesting (true). A welcome break from the fever swamp.
http://www.washingtonmonthly.com/archives/individual/2006_05/008786.php
May 12th, 2006 at 1:06:10 am
Brendan, the question is not really whether to prosecute the reporters who write the story, the question is whether they have immunity from having to divulge who gave them the information. I personally have no problem throwing a journalist in jail until they squawk (a la Judith Miller). That much helps the government determine who is leaking and correct the problem.
As for the data-mining program under discussion, obviously I have no qualms with it and I have yet to see any evidence it is either against the law or against the Constitution. Furthermore, it’s a brilliant and useful idea because if you posit telephone communication as a ridiculously complex web of communication, harnessing computers to track the patterns can greatly assist in finding terrorists. How? Well, say we locate an al-Qaeda operative in the U.S. From his known phone number, we can track all phone numbers he’s called. Some will turn out to be pizza orders or phone sex, but others might lead to other suspicious clusters that connect with other suspicious clusters, and the more you dig and more information you find, the greater likelihood of locating a terrorist cell or group of terrorist plotters. This is exactly the kind of dot-connecting the government should have been doing pre-9/11.
May 12th, 2006 at 1:13:01 am
Actually, it seems to me that David may be on to something here, totally separate from his or anyone else’s belief in the trustworthiness of this administration.
The consensus seems to be that the law is hazy, the impact is low of this activity, not necessarily different from what the phone companies do, immaterial to our liberties.
So if the executive kind of engages in this activity, no big deal, it seems that most disagree with David that we need legislative oversight.
I’m gonna jump in the foxhole with David on this one, but for a different reason:
my suspicion is that the hazy legal status, the low impact to liberties, means that government bureaucrat/agents may be unlikely to act on relevant data.
It often strikes me as odd that defenders of not including the legislature in the WOT is that it gives our enemies too much information. Didn’t the 9/11 report teach our enemies well that government agents, lacking rules of engagement, have a tendency to do nothing? Wasn’t the system “blinking red”, but the various and sundry intelligence agents watched the blinking, in some part doing nothing because of no clear rules of engagement?
You might blame the lack of intelligence agent action on a fear of being sued, caused by evil groups like the ACLU. Maybe. But whatever caused it, the fact is government tends not to act without clear rules of engagement.
So I’m with David - lay out the rules. Not cause I’m worried about trusting the government with this info - I’m not - but I am very worried about gov’t agents looking at transient patterns of phone messages from a Mohammad Atta type, thinking they’re interesting, but knowing they disappear before a warrant can be obtained from the current FISA structure, and without the warrant the agent would probably be sued and/or fired, so…
May 12th, 2006 at 1:19:48 am
David, you contend that the program is illegal, which of course is reason enough that it should be condemned, good or bad, if true. The problem I see (and I am an attorney who works in non-federal law enforcement and has extensively studied constitutional law) is that I think you may be incorrect. We receive this type of information with some frequency in connection with homicide and narcotics trafficking investigations, and I am unaware of anything that makes that illegal. You cite no authority for your assertion; in the practice of law, no judge accepts a conclusory assertion by an advocate of what the law is without a citation to the relevant legal authority. Could you please let us know on what authority you rely (not some blogger that said it, but the actual statute or court case) to support your proposition that this is illegal? Based on what I know, I don’t believe that it is. I look forward to your reply.
May 12th, 2006 at 1:23:27 am
I second B. Minch, PI on both counts. Kevin Drum and Mathew Yglesias are both very good. (Though of course I disagree with Minch about them being wrong) A better link for Yglesias is: http://yglesias.tpmcafe.com/ and from there you can branch out at TPM Cafe (though Matt is the only one there I read regularly.) And if time permits, both The Washington Monthly and The American Prospect make substantial portions of their print magazines available for free online.
May 12th, 2006 at 1:30:44 am
Oh, and The American Prospect has a blog:
http://www.prospect.org/weblog/
May 12th, 2006 at 1:39:14 am
John S.: David, you contend that the program is illegal, which of course is reason enough that it should be condemned, good or bad, if true.
You say that the program, if illegal, should be condemned even if it is ‘good.’ Why should a program that is ostensibly good be condemned because it is illegal? Perhaps a better course to take would be to change the law, rather than scrape a ‘good’ program simply to conform to a preexisting regulation. I am not arguing either way on this one as to whether it is good/bad or legal/illegal, I just find your assertion that we should condemn a ‘good’ program if it turns out it is illegal, rather than change the law to accomodate a good program, a strange assertion to make.
May 12th, 2006 at 2:10:12 am
John S., the link Brendan has provided is a much better explanation of the legal issues. Suffice it to say I also find the behavior of the telecoms to be at issue here as well.
Brendan, again if this were an isolated issue perhaps i’d be willing to buy the argument, but again its one thing after another for the Bush administration. I stopped giving him the benefit of the doubt after the WMD’s never showed up.
May 12th, 2006 at 2:24:47 am
My main complaint is that this administration seems to have no respect for civil liberties. They have no reservations about tactics that have liberty/privacy issues, but they fail to exhaust their other options.
Secure the borders? Nope. Streamline the information-sharing between agencies? Not so much.
Why should I have my liberties encroached on when the administration isn’t even maximizing the uncontroversial options they have to protect our country?
Besides, how effective do we really expect this to be? Even if terrorists didn’t know that the govt. recorded who called who, they probably were worried enough about being tapped. Maybe we’re lucky and no terrorist has ever heard of the war between the FBI and the mob, but I doubt it.
May 12th, 2006 at 2:55:50 am
For me, David, the war on terror is a much bigger and more important issue than any one presidential administration. No matter what happens, Bush will be out of office in less than three years, quite possibly replaced by a Democrat (though if the Dems take back the Congress this November, that becomes less likely IMHO… but that’s another matter entirely). But if we set a precedent now, either legally or through the court of public opinion, that the American people won’t stand for something that seems like a relatively innocuous, good-faith and quite possibly effective technique for protecting us from terrorists, that precedent could long outlive Bush and could come back to haunt us years or decades from now. (Yes, decades — this war on terror is going to be a long haul, I’m afraid.) So while I share your concern with some of the Bush Administration’s tendencies (though my level of concern is much less extreme degree than yours), I’m not going to judge important national-security issues entirely through the lens of my view of the Bush Administration. I’m going to make an independent judgment on whether I think the particular policy in question is good or bad. And here, I am simply not seeing a substantial argument that it is bad.
As for the WMD’s, while I agree (and have repeatedly said) that their apparent nonexistence is a very serious problem (not because “Bush lied,” which he didn’t, but because it’s hard for the boy who cried wolf to get anyone to take him seriously the next time, even if he really and truly believed there was a wolf the first time), I fail to see how that is a civil-liberties issue. I’m also not convinced that you were actually giving Bush the benefit of the doubt before that… but I suppose that, too, is another matter entirely.
Billy, you wouldn’t know “respect” if it punched you in mouth, unless we’re talking about “respect” for ACC teams. :) That said, I agree with you that Bush & co. ought to be doing more to secure the borders, ports and such. Indeed, I argued in 2003 that I believed the Democratic theme in the 2004 campaign should have been something along the lines of: “Bush has done too much to turn America into a police state, while doing too little to actually protect its citizens.” However, the fact that Bush has failed to do things like adequately secure the borders/ports is NOT actually an argument that this program is bad. You ask, “Why should I have my liberties encroached on when the administration isn’t even maximizing the uncontroversial options they have to protect our country?” — but that question is premised on the notion that this policy is actually encroaching your liberties in a serious way, which I am questioning. As for “how effective do we really expect this to be?” … probably not very, now that USA Today has revealed that all the terrorists need to do is sign up with Qwest!! Heh. But don’t underestimate the stupidity of terrorists; they would have blown up LAX in 2000 if that guy who tried to come through Seattle wasn’t such an idiot. All it takes is one idiot to give us the necessary information to disrupt a plot, and we need to put ourselves in a position to take advantage of his idiocy. If it’s a choice between doing nothing, and doing something that might be effective and that isn’t a serious intrustion into my liberties, I’m going to choose the latter. So I’m afraid that I’m still waiting for an argument that convinces me this program is a significant intrusion into my liberties.
May 12th, 2006 at 4:30:11 am
What I worry about is precisely the precedent. Forget, for the moment, the name George W, Bush and view it in the abstract: There’s no statutory check on this. It’s the Bizarro World flip-side of “dual-use technology”: we’re being assured that it will only be used for war — against the bad guys — and not in peacetime against people who simply oppose the administration. Yes, it’s only the phone numbers — at least 75% of which only require a Google search to link them to a specific person. What’s to keep anyone with sufficient clearance from, checking all the calls placed to and from a certain number that belongs to, say, a Washington Post reporter? One presumes — one hopes — there is someone who can say “no”… but we don’t know for certain, and we’re not allowed to know. We don’t “need to know.” We’re being told we’ll just have to trust them on that.
This administration might even hold to that promise, but we’re also being asked to blindly trust future administrations. That’s one of the reasons we have checks and balances, so we can trust future administrations, or at least trust that someone will keep an eye on them — even if they’re not who we voted for. The problem with an imperial presidency with increasingly unlimited power is that those in the opposition see nothing within the system to protect them from abuse. No matter who wins the next presidential election, a significant part of the population will fear that the new administration may plan to use that unchecked power against them. Depending on who gets nominated — and there’s candidates for this in both parties — that would become a near-certain belief that the incoming pres will abuse his/her power. We’ve already seen this for two elections now, arguably three, and as checks vanish the situation only gets more unstable.
This veered into territory I wasn’t really planning to veer into. Short version: If there were oversight that I were permitted to see, I would be a lot more comfortable with this program. I can see great value in it, but I can see horrible potential for abuse, and by its very nature I can’t see what prevents that abuse. That makes me nervous.
(And yes, the thought of another attack also makes me nervous. The lesson of the 1950s that a lot of people now seem to miss is that it’s when the enemy threat is real that you’ve got to watch out most for the McCarthys. But that’s another rant…)
May 12th, 2006 at 4:50:20 am
Hmm… you make some good points, Fax. I have to go to bed, but I’m curious if anyone will rebut them while I sleep. :) We have the makings of a good debate here…
May 12th, 2006 at 6:56:58 am
Oh, and an interesting conservative take is at http://poliblogger.com.
May 12th, 2006 at 7:44:59 am
Young Brendan has fully succumed to the “Dark Side.”
One wonders if he feels the tingling pain of ice running through his viens.
I am sure he has torn the grayhound to shreds with his teeth and his bride is doing a merry dance over the rescued dog’s bones.
“… and yes, understanding the law does require research; there’s a reason getting a law degree takes three years!”
Welcome to the Conservative way, Brendan. Your conversion is now complete.
BWAhahahahahahahahahhaha!!!
>-P
Yes, you can still hate Republicans, me in particular, but you can never turn your back on the Truth anymore.
I hope to see you posting as a guest blogger on the PowerLine blog in the future.
And, no David, I will not apologize to you.
May 12th, 2006 at 7:46:42 am
Scratch that last comment about the Powerline!
I hope to see the IrishTrojan blog surpass the PowerLine as the source for many truths to issues and cutting opinions.
May 12th, 2006 at 8:23:14 am
Apart from the fact that it’s illegal for stored personal electronic communications to be shared by the telecommunications giants except under specific circumstances– even if the information is provided to the government, I’m not bothered by it at all.
The government must have a court order to access this information. QWEST requested a FISA warrant from the NSA. The NSA refused and left QWEST alone.
But this is another situation where there IS a law that governs the disclosure of this information. the law was not followed and some people aren’t bothered by that.
I’m pretty sure this is the law: http://www4.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18_10_I_20_121.html
May 12th, 2006 at 8:24:35 am
Addendum to the above: not only is it illegal to share the actual electronics communication itself, it’s also illegal to share the RECORDS of said communications.
May 12th, 2006 at 8:35:27 am
The above URL may not be the law I was looking for. Some have argued that the Stored Communications Act applies to this situation. That was the reference I was looking for.
The database is of US citizens talking to US citizens. The records of their communications may be covered by the SCA.
But by analogy, we’d all clearly be bothered if the US government engaged in random surveillance of millions of US citizens– either with devices or on foot. So why is electronic monitoring of US citizens LESS bothering tham the government having people watch you and follow you? I mean they are not HARMING you or BOTHERING you.
May 12th, 2006 at 8:42:59 am
George Kerr of the George Washington University Law School says, “The federal statute that protects the privacy of stored Internet communications is the Stored Communications Act (SCA), passed as part of the Electronic Communications Privacy Act of 1986 and codified at 18 U.S.C. sections 2701-11. But courts, legislators, and even legal scholars have had a very hard time understanding the method behind the madness of the SCA. The statute is dense and confusing, and that confusion has made it difficult for legislators to legislate in the field, reporters to report about it, and scholars to write scholarship in this very important area.�
SCA may cover these records because as soon as any information is stored electronically, it’s covered by the SCA which lays out the ways the government can gain access to the stored information. In the above example, Kerr is talking about e-mails. But by extension ANY information that is stored electronically– and an e-mail is basically stored electronic information– is covered by the SCA.
May 12th, 2006 at 9:13:37 am
Brendan, thank you for clarifying why it is that the story bored me. I suppose I did assume that very basic call records like that would be subject to government review. If they obtained those records without proper clearances, sure, my ears will perk up to that. But you brought up a great gripe that I have in our post-9/11 counterterror movement: that we want everything both ways. We think the gov’t should have done more to stop it. We created coalitions and commissions to ease emergency response across county and state lines. To screen passengers more stringently and to pay attention to details like phone calls. It reminds me of an article in last week’s US News & World Report on how *evil* our police forces are becoming; how much money the federal government is pumping into town law enforcement and creating “fusion centers” and how now even the cops are watching you! I want to slap people sometimes; you wanted the response, you appluaded when Bush said the fight against terrorism at home will be a unified front at every level starting with the local level; what exactly is the problem? I don’t want to have to give up my civil liberties or my privacy, but I do want to know what I can do to make my neighborhood safe. Let’s start there.
May 12th, 2006 at 9:20:32 am
and p.s., Fax: very good points. And I think that should be our focus, considering those are the very principles this country was built on.
May 12th, 2006 at 9:42:24 am
Brendan, before the programs, all you do is subpoena the guy’s phone records… You know, use the law instead of breaking it.
Those that would give up liberty for security deserve neither. — Ben Franklin
May 12th, 2006 at 10:12:39 am
Actually, the internal controls issues that Fax brought up point to one of the more baffling aspects of this administration.
Seems to me that mostly the opponents on this blog of Bush’s activities (e.g. David/Nun Mouse) are focused on the lack of effective internal controls, not that the underlying action shouldn’t be taken. You might be able to find posts from them to the contrary, but generally I get that impression.
So when Fax says “Where’s the oversight?” he’s asking a question oft-asked, here and elsewhere, about the Bush Admin.
Supporters of this policy point to things like a) its not that intrusive, b) the benefits outweigh the costs, c) govts do this all the time…and all of those points are absolutely correct.
Governments do slightly unsavory things all the time for the common good - and the reason for internal controls (checks & balances) is to make sure that those unsavory things don’t get out of control.
In other words, we all know that the government has to do things we are not comfortable with to ensure our common safety - fair.
What’s so strange about Bush in particular is that he doesn’t even pay lip service to the value of checks & balances.
When I said earlier that every administration engages in these activities, I omitted one idea - seems like most other administrations would at least pay lip service to the idea of checks & balances.
So, Nixon may have a director of the FBI walking around his office in women’s underclothing, keeping secret files on who-knows-who (even Nixon-doesn’t-know-who)…
…but at least Nixon doesn’t get in front of the nation and say “J Edgar will do whatever J Edgar does, I/you have no need for oversight or comfort on the process”.
It almost seems like Bush himself doesn’t want to be bothered with even a token knowledge of what is going on with these clandestine activities -
- so you shouldn’t be either.
That, no doubt, is concerning.
May 12th, 2006 at 10:13:15 am
dcl -
The whole point of the exercise is to FINDING the terror suspects. If they could name them ahead of time, wouldn’t this be moot?
May 12th, 2006 at 10:19:40 am
Jazz -
I’m sorry but your wholly wrong. The objections I read here are moral and legal ones. NOT ones of oversight. There is criticism on oversight, and frankly, that is certainly a strong argument, just not one big enough to shut down the entire system.
Much as with all the complaints on this board, my response is as always:
Fine, what WOULD you do? Don’t want to data mine phones. Fine, what should we do? Don’t want to monitor international calls. Fine, what should we do? Exactly what intelligence is the NSA allowed to gather to do its job?
For pete’s sake, this is what everyone was bloviating on the 9/11 commission on what we EXACTLY needed.
May 12th, 2006 at 10:47:13 am
http://www.volokh.com/archives/archive_2006_05_07-2006_05_13.shtml#1147414541
Volokh really is the go-to place for any legal summary or discussion on things like this.
May 12th, 2006 at 11:19:03 am
From today’s USA Today:
Harold Koh, dean of Yale Law School and author of The National Security Constitution, called the scope of the database “quite shocking.”
“If they had gone to Congress and said, ‘We want to do this without probable cause, without warrants and without judicial review,’ it never would have been approved,” said Koh, a former law clerk for the late Supreme Court justice Harry Blackmun.
“I don’t think any FISA court would have approved this kind of scale of activity.”
As a general rule, telecommunications companies require law enforcement agencies to present a court order before they will turn over a customer’s phone records. Under Section 222 of the Communications Act, first passed in 1934, phone companies are prohibited from giving out information about their customers’ calling habits.
Senate Finance Chairman Chuck Grassley, R-Iowa, questioned why the phone companies would cooperate with the NSA.
“Why are the telephone companies not protecting their customers?” he said. “They have a social responsibility to people who do business with them to protect our privacy as long as there isn’t some suspicion that we’re a terrorist or a criminal or something.
http://www.usatoday.com/news/washington/2006-05-11-nsa-reax_x.htm
Apart from it being illegal, gee, I guess it doesn’t bother me either. These silly laws just get in the way. Like, really. I’M not doing anything illegal and stuff. So go ahead and montor me. Like really.
May 12th, 2006 at 11:21:32 am
“[I]f someone wants to make the argument that allowing the government to have this information is a good thing and worth doing to protect us from the possibility of a terrorist attack, then fine, make the case and CHANGE THE LAWS to accomodate it. Last time I checked thats how things were supposed to work in this country.”
The argument for why the gov’t should have this information is obvious, and Brendan explained why in his post pretty clearly. The burden is therefore on YOU, David, to explain why the gov’t should NOT have this information (as Brendan likewise pointed out in his post). And as such, the burden is also on YOU to explain why this program is ILLEGAL, not on those of us who are not alarmed by this program to explain why it IS legal.
P.S. If you can do so without your stale, overwrought, merely conclusory, and utterly substance-free standby of “Bush is completely ignoring both the Constitution and the law,” or the “pattern of behavior that Bush and those around him have exhibited since they took office” (wait, didn’t you say you gave them the benefit of the doubt until no WMDs showed up in Iraq . . . or was that just typical David bullsh*t?), you get 50 bonus points.
May 12th, 2006 at 11:25:43 am
“Where’s the oversight?”
Dem and Rep Members of the House and Senate Intelligence Committees have been briefed on these programs throughout their existence. And aside from Sen. Rockefeller (D-W.V.) hiding a CYA letter in his drawer, none of them voiced any concern until these programs were in the news.
May 12th, 2006 at 11:30:04 am
Wow, if the Dean of Yale Law School and called the program “quite shocking,” then I guess I don’t have to think about it anymore.
As FAIR v. Rumsfeld clearly showed in a unanimous decision, what law school professors consider to be illegal isn’t the best barometer of what is in fact illegal :-)
May 12th, 2006 at 11:30:35 am
I mean “unconstitutional.”
May 12th, 2006 at 11:33:43 am
To Joe Mama: that Congress was briefed on its existence is risibly inadequate as oversight. You know much more about the law than I, so I can’t cite case law here, but surely the spirit of the Constitution is not that:
Branch A will go off and do something unsavory, arguably troubling (but ultimately utilitarian), but its okay because they…
…told Branch B that they were doing it.
Indeed, by your criteria, the fact that Bush goes on TV and says “Hey, we’re gathering this large amount of data about Americans, but fear not, its for your own good” -
- that sort of thing qualifies as ‘oversight’?
You’re smarter than that.
May 12th, 2006 at 11:35:20 am
The obvious point is that if Bush wants to do something without the restraint of Congress or the Courts — in other words, with no one who can stop this information from being abused or used for purely political purposes, nor find out what the government is doing with the information — then the burden is on him to prove that he’s not abusing it and that there is no other way to do this except without the aforementioned constraints.
As for “the threat we face,” this is more fear-mongering, the only thing the right has ever had going for it — except the idea that we must throw rule of law out the window because of a few nuts with box-cutters is particularly ridiculous. The nuts got lucky five years ago; this is hardly a reason to hide under the bed and scream. As Glenn Greenwald says,
Luckily there are some people, even in government, who understand that fear and cowardice are not a sound basis for national security policy. Unfortunately, Bush and Bush supporters still want us to be a bunch of snivelling cowards.
And no, saying that we need to sacrifice civil liberties now because next time the terrorists strike we’ll need to sacrifice even more civil liberties, well, that’s just silly. Someday there will be another terrorist attack here (hopefully not for a long time), and when it happens, the cowards will be screaming just as loud for civil-liberties curtailment as they would have in any case. We need to worry about our civil liberties now and making sure they are protected, not giving up liberty due to cowardice.
Incidentally, I don’t think Bush is a coward, since I don’t think he believes terrorism is a serious threat; if he believed terrorism was a serious threat he wouldn’t have exploited 9/11 for political gain and used it as an excuse for an unrelated invasion. The Bush administration understands that a few nuts with box-cutters are not a threat to our civilization, but it suits them to inflate the threat in order to get what might be called the Coward Vote.
May 12th, 2006 at 11:40:28 am
Lojo,
To your question, “What would I do?”
Exactly the same thing the current administration is doing. With one noticeable difference:
I would acknowledge that some sort of judicial or legislative involvement in the process was necessary. And here I don’t mean “hey Mr. Judge this is going on…so now you know”. I mean some sort of participation.
And to make myself very clear: if I were President, that judicial/legislative involvement would be far less than it would seem from my press conferences.
Yeah, I’d get up in front of the people, and say all this stuff about how important I think judicial/legislative involvement is, and make mention of this or that token thing I am doing to bring them into the process:
“This has the potential to be risky, so I am making sure I do it THE RIGHT WAY”.
And the truth is, friends? There wouldn’t actually be much judicial or legislative oversight, cause me and my intelligence guys wouldn’t want them involved.
But lord knows I wouldn’t be so brazen as to stand up and say, ‘well, I can’t imagine why the American people would want such oversight’. That shocks me.
What shocks me further is that a subset of the population, a subset of this blog, find it fully acceptable that our great American government would function outside the realm of checks & balances.
I think government in fact does function often without checks & balances - but rare indeed is the politician who so brazenly as Bush argues that such things aren’t important.
Dangerous Kool-Aid to drink, friends.
May 12th, 2006 at 11:41:31 am
Joe Mama
It hasn’t come out in the news that any Democrat has been briefed about this particular database.
So please stop making stuff up, at least.
May 12th, 2006 at 11:43:10 am
Lojo, Brendan said that when we had Atta the FBI would have used this database to find who he was talking to. I’m saying if you have Atta you can get his phone records, even without the database.
May 12th, 2006 at 11:47:36 am
And Lojo, the NSA is supposed to do it’s job. Part of that is getting court orders and warrants for it’s activities so it stays within the bounds of the rule of law. The point is, given the tools and oversight procedures already in place, these actions are over broad and illegal. If there is a there there getting the court approval is no problem.
The other problem with this is that it sticks to high heaven… It is like the Nixon Watergate Phone tapping times 200 million… With no over sight and no court orders who is to say they are not spying on political opponents… If the president is willing to unilaterally declassify information to smear someone do you really think spying on the DNC is above him?
May 12th, 2006 at 11:51:08 am
Lojo,
Actually, your question “What would you do?” points to the heart of what’s wrong with the Bush Admin’s approach.
Cause my answer was: “I would do the same thing” -
- and here’s the kicker, man -
- IF I COULD GET AWAY WITH IT, I WOULD PROSECUTE THE PROGRAM EXACTLY AS SECRETLY AS BUSH OPENLY WANTS TO.
That makes perfect sense doesn’t it? Who wants a pesky judge or Congress looking over this stuff? What about all the communications that are sort of on the border of acceptability, you don’t want some third party questioning your judgment, do you?
Yes, Lojo, if I were President I would want to do everything exactly the way I saw fit.
Like our bizarre friend Jar Jar, I would want to be king.
What worries me about this country is the existence of so many such as yourself who say
“The President’s motives are understandable” (true)
and then continue
“Why should I have a problem with it?” (really problematic)
May 12th, 2006 at 11:56:28 am
Joe, what kind of moron are you? The program is currently illegal full stop. You might think the program is a good idea, fine (would you like the next president to unilaterally require you to register your guns?) However, YOU must argue that it should not be illegal. Do you need remedial logic? That does not absolve the requirement of arguing such behavior to continue to be illegal. But it is totally asinine that you think you can make this legal by ignoring a law already in-place. Simply put, you are in the weaker position on this issue, and there is a burden upon you to demonstrate two things: this program is a good idea and that the law should be changed to allow it. On the first count Brendan has made some stabs. On the second count no effort whatsoever has been made.
May 12th, 2006 at 12:00:14 pm
And according to this memo from “Democratic Members of the House Permanent Select Committee on Intelligence” to “Members of the House Democratic Caucus,” the Democratic Members of the above Committee are only beginnning to get up to speed on the President’s intelligence activities.
A quote from the memo reads thus: “Any collection of personal telephone records requires a warrant approved by an independent magistrate on the Foreign Intelligence Surveillance Court. Warrantless collection violates the law.”
http://www.crooksandliars.com/stories/2006/05/11/memoToCaucusOnNsaProgram.html
I’m dumbfounded anyone could NOT be bothered by this.
May 12th, 2006 at 12:07:20 pm
“Joe, what kind of moron are you? The program is currently illegal full stop.”
I’m the kind of “moron” who knows that just because some shriek, with no legal analysis whatsoever, that something is illegal does not in fact make it illegal. And I won’t go through the pains of trying to convince such people that gov’t collection of little more than what phone cos. do for billing is not illegal, because 1) I just don’t have to, and 2) everyone knows that said shriekers are not likely to be convinced by anything so quaint as facts, logic and the law anyway . . .
May 12th, 2006 at 12:11:16 pm
Mouse, you apparently are “dumbfounded” by 63% of the American public:
http://abcnews.go.com/Politics/story?id=1953464
I’m dumbfounded that you’re dumbfounded (actually, I’m not).
May 12th, 2006 at 12:27:51 pm
First reponse to Nun -
Boy, I bet the Democratic leadership made sure to make a full measure of the legal issues before they whipped that press release out.
May 12th, 2006 at 12:30:07 pm
[W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must “convey” phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. . . .
[E]ven if [a caller] did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not “one that society is prepared to recognize as ‘reasonable.’” . . . This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. . . . [W]hen [a caller] used his phone, [he] voluntarily conveyed numerical information to the telephone company and “exposed” that information to its equipment in the ordinary course of business. In so doing, [the caller] assumed the risk that the company would reveal to police the numbers he dialed.
Smith v. Maryland, 442 U.S. 735 (1979)
Didn’t get it from Lexis (or an actual book :-)), so there’s no pinpoint cite:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=442&invol=735
May 12th, 2006 at 12:36:49 pm
dcl -
Problem is what if you DON’T have a name to give a court.
This is the fundamental problem with trying to get this kind of intelligence. By its very nature, it IS a fishing expedition. If they had a name like Atta in mind, your right. I would absolutely get a warrant for their phone records.
But what if those phone records point to more people, whose own phone records point to more people and so forth. That would have to be one lenient warrant for that scope.
Even past that though, what if you don’t even HAVE Atta’s name? This kind of data mining operation could get you Atta’s name, to say nothing about his associates. That’s the point. A net is cast to catch a small group.
And this is FAR from Watergate. Have phones been tapped? No. Conversations listened too? No. Phone Companies forced to provide this info? No. Phone Companies required to get this info? No (Companies were providing what they already collect).
Now concern for oversight is far from minimal. Your right that this has some serious possibilities for abuse and/or corruption. Thusly, sensible (and that doesn’t mean toothless) oversight measures are well suited for this program.
May 12th, 2006 at 12:37:21 pm
Joe mama,
Polls depend on how the question is phrased, the order the questions are asked, and most importantly the knowledge of the person who’s being asked– i.e. how deep their personal knowledge is of the issue. The phrasing of the questions involved didn’t even raise THIS PARTICULAR database, so this poll seems close to irrelevant. Plus the questions are clearly framed in a positive way for Bush: “approve or disapprove of the way Bush is handling protecting Americans’ privacy rights.” It implies Bush actually is concerned about protecting American’s rights and that he is doing so.
To somehow think that truth is a matter of popular polling is downright ignorant. Some issues are not a matter of opinion. This collection of data is either illegal or it is isn’t, and I doubt that even 20% of the American public– everyone included, conservatives, liberals, libeertarians, apolitical types, etc.– even has the basic knowledge of the Constituion and the Bill of Rights, let alone the applicable laws, to formulate an opinion that actually MEANS something,
A good example of this would be to poll the American public on the Bill of Rights. Most Americans can’t even name a few of the Amendments therein. Rememeber the poll about the Simpsons and the Bill of Rights and how more Americans could name a Simpson character than one of the 10 Const. Amend.s of the B of Rs? Yeah, that’s funny, haha, until situations like this arise, and I start to realize I’m at the mercy of people who don’t have a clue about the basic workings of our government, nor do they even CARE that they don’t have a clue.
Democracy is not a spectator sport….well, except maybe in America.
May 12th, 2006 at 12:38:09 pm
Smith v. Maryland isn’t necessarily dispositive of the legality of the data collection in question, it’s merely the first relevant precedent I’ve come across. There’s still room to oppose the gov’t here. Suffice it to say, however, that this SCOTUS case certainly supports the proposition that what was described by USA Today is not, on its face, unconstitutional.
May 12th, 2006 at 12:40:02 pm
“To somehow think that truth is a matter of popular polling is downright ignorant. Some issues are not a matter of opinion.”
I’ll remember that, Mouse, the next time I’m bombarded with polls showing how awful things in Iraq are :-)
May 12th, 2006 at 12:40:25 pm
No, it’s prima facie illegal.
May 12th, 2006 at 12:42:23 pm
“Most Americans can’t even name a few of the Amendments therein. Rememeber the poll about the Simpsons and the Bill of Rights and how more Americans could name a Simpson character than one of the 10 Const. Amend.s of the B of Rs? Yeah, that’s funny, haha, until situations like this arise, and I start to realize I’m at the mercy of people who don’t have a clue about the basic workings of our government, nor do they even CARE that they don’t have a clue.”
Careful, Mouse . . . your elitism is showing.
May 12th, 2006 at 12:42:43 pm
The issue of the Iraq war is not a deeply technical one such as matters of legality and data collection.
Or I should say it’s LESS technical.
I think most of the American public can easily gather all the relevant knowledge about the Iraq War, even if they can’t find the country on a map of the world. :-)
May 12th, 2006 at 12:43:33 pm
Joe Mama,
It’s elitest to notice Americans are often dumb? *gasp* I’m such an awful elitest aren’t I? lol
May 12th, 2006 at 12:44:03 pm
“No, it’s prima facie illegal.”
I’ve only dug up one precedent that disagrees, Mouse. But I’m sure you’ve got plenty up your sleeve that say different, right? I’m all ears (and no, Democratic Party memos don’t count).
May 12th, 2006 at 12:45:05 pm
Jazz -
Thanks for assuming I am perfectly fine with it. Can I assume your a jackass because the whole ‘Bush wants to be king’ meme?
There debatable, but reasonable reasons why NOT to publicize this kind of program. Hell, someone already remarked they would head to Qwest because of this. If we got a cell working in the US, don’t you think they’d do the same?
Look I don’t mind oversight, in fact I welcome it. And frankly, if Bush and crew used some damn political fortitude for once, they would put together an entire package updating the nigh-30 year old communications and intelligence laws we’re currently dealing with.
But too much of the criticism I hear, and not necessairly here but some, is of the, “He wants to be King Bush!!”. Give me a damn break. This was enacted after 9/11 through the War Powers authorization. What do you think was going through his head? Obviously it was, “How can I capture all the power myself!?”
Me? I think it was, “We need to find these people FAST, if anymore are in the country!”
Which sounds more likely to you?
May 12th, 2006 at 12:46:24 pm
In so doing, [the caller] assumed the risk that the company would reveal to police the numbers he dialed.
Which is all fine and dandy but as has been pointed out in numerous links to law above in order to turn that information over to the police their needs to be a warrant.
May 12th, 2006 at 12:46:36 pm
“The issue of the Iraq war is not a deeply technical one such as matters of legality and data collection.”
Translation: polls adverse to Bush reflect the “true” pulse of the nation, whereas polls supportive of Bush simply show the respondents are “dumb” :-)
May 12th, 2006 at 12:47:00 pm
Joe Mama,
People like you mark a real turn in this culture. It used to be that intelligence was highly valued.
Now if you show you know something, anything, or that other people don’t have the required knowledge to judge something, you’re somehow an “elitest.”
Since when did wanting to KNOW something become a mark of elitism? I would guess somewhere along about the same time “liberal” got such a derogatory tone added to it.
May 12th, 2006 at 12:50:14 pm
Nun -
“I think most of the American public can easily gather all the relevant knowledge about the Iraq War, even if they can’t find the country on a map of the world.”
WAY too show yourself as an idiot. On one hand, the public can easily sort out the troop movements, training procedures, Iraqi army roster numbers and actual numbers in the country regardless of the fact that all the media reports are a car bomb here and there (which by the way, is detailed in AQ strategy documents. Ask yourself when the last time they hit something VITAL or STRATEGIC was? They are playing on public opinion with the current attacks).
YET, on the other hand, you say they are too stupid to work out the legal issues and any affront they feel towards this NSA program.
Sister, that is really impressive hypocritical bullshit.
May 12th, 2006 at 12:54:44 pm
Mouse, I only used the term “elitist” because that was exactly what you called me in an earlier thread when I opined that just because a majority (or plurality, of whatever it was) of Americans thought there was a connection between Iraq and 9/11 (a poll showing which you were gleefully waving around, if I remember correctly) did not necessarily mean they were somehow tricked into believing so by the WH.
So we can be “elitists” together :-)
May 12th, 2006 at 12:56:20 pm
According to federal law the phone companies are required to keep your personal information private unless they are given a court order to turn said information over–hence QWEST not giving up the info. That makes this program illegal. There was no court order, they did not notify congress, there is no over sight. They just did it. Joe, you are missing the part where this is perfectly reasonable with a court order. Things are very much different when there is no court order and no reason to believe the person is acting illegally. I have no problem with the government obtaining phone records in a legal manner. But a massive blanket program to take everyone’s information? Is that really necessary?
I mean this is the type of information that can be used by a NSA rep to see if one of their friend’s spouses happens to be cheating on their friend.
I wouldn’t even really have a problem if we passed a law and a structure to do something like this. With oversight and safe guards in place. What I most strenuously object to is the Ad Hoc nature of the program.
I mean there is a certain amount of the, “I’m not doing anything wrong so what do I care?” mentality about this in me. Sure. But this also worries me. It worries me for a lot of process reasons. The President did not follow the required process to put this program in place. There is no process for protecting the information from nefarious evil doers. There is no oversight of what we are doing, or how the information is being used.
And given this administrations track record these are honestly very worrying issues.
Is it a necessary freedom to keep our phone records private? That depends on how that information is used. With no over sight or safe guards we have no way of knowing how it is used. That makes it a threat to liberty. But look at it this way, no less a conservative than John Ashcroft told Bush he couldn’t do this. That is absolutely worrying.
The Road to Hell is paved with good intentions.
May 12th, 2006 at 12:58:32 pm
“The Road to Hell is paved with good intentions.”
I thought it was paved with the skulls of priests :-)
May 12th, 2006 at 1:12:27 pm
dcl -
Valid points and quite a few I do agree with.
One thing to note that there ARE legal exceptions to providing this information and these very exceptions were expanded in the March 2006 re-enactment of the Patriot Act. Still, given alot of the legal commentary I have seen on this, it is debatable but more likely illegal and legal.
Really, the more I look at it the more pissed off I get at Bush and Congress. Not because of these programs, but because the real and serious overhauls these decades old surveillance laws need to accomodate new technology and concerns.
Hey, if there are any Dems reading, there’s a goddamn platform right there.
Cut Spending, Overhaul Survelliance Legislation, Curtail Illegal Immigration
Man. If Pelosi was singing that tune, Melhman and gang would get clobbered. Instead, of course, Super Genius is planning investigations and hearings. Grrrreat.
May 12th, 2006 at 2:03:52 pm
Lojo,
Oops - I accidentally tripped a dangerous meme switch by referncing the King meme. But if you check my post, I didn’t say Bush wanted to be King, rather that I would want to operate that way, if I were Chief executive.
Also, it was a great opportunity to channel Jar Jar, who aside from that unpleasant effort to hijack this place, can be one of the funniest posters this community has.
Back to the point: while I will criticize Bush strongly (and illustrate my Bush family bona fides by defending his dad equally strongly), the King meme in this case was not a swipe at Bush.
Rather, it was an acknowledgement that anyone, if given the opportunity, would behave in a king-like manner. It is clearly much easier to do so than deal with the friction of a system of checks and balances. Anyone who claimed they preferred to be checked or balanced must be lying!
So, when I argue strongly for effective oversight, it isn’t because I don’t trust Bush.
Its cause I don’t trust people.
Further, it seems to me that the citizenry of a country that has been blessed with the miracle of enfranchisement (relatively speaking, the US), such a citizenry is obliged to speak up to defend the checks and balances that ensure that freedoms and enfranchisement persist.
Net of the King meme, I believe you and I more or less agree on the point of this post.
May 12th, 2006 at 2:12:36 pm
One other thing, Lojo,
In truth, my guess is that Bush, of all 43 Presidents, may want to be king THE LEAST, which is possibly part of the problem.
It seems like that guy is just counting the days til he can get back to clearing brush in Crawford, make an occasional appearance at his think tank, and just kick back.
Most, but not all, kings face more headaches than that.
In this particular thread, the attractive part of king status is lack of oversight. Seems as though Dubya is one guy who would hate just about everything else about being king.
May 12th, 2006 at 2:27:15 pm
Jazz -
‘Power corrupts and absolute power corrupts absolutely’ as it goes.
I dunno. Alot of people miss that these programs have been running since just after 9/11 so they are not recent. So I won’t claim he’s obessesed with national security. Hell, guy is advocating no-borders with Mexico. How security conscious can he be??
He does have alot of the lameduckness going on, but I still think that the motives for the plans were based on speed due to how 9/11 transpired. So, in short I have no problem with how they have been run.
BUT!
We’ve gone 6 years without a terrorist attack in the continental United States. Rarely do we have to see the DHS’ color code system. Certainly seems like we can take a break to work out the legal issues surrounding intelligence and surveillance in the War on Terror.
May 12th, 2006 at 2:29:34 pm
Those that would give up liberty for security deserve neither. � Ben Franklin
JESUS H. CHRIST!!! Did you even read my post, Dane?!? First of all, you’re misquoting Ben Franklin. That’s bad enough. But even worse, you’re misquoting him despite the fact that I quoted him correctly in the post that you’re commenting on, and indeed, made a fairly significant point of REBUTTING the relevance of that quote to this situation, and criticizing people who misquote him!!! So, simply misquoting him back at me, without any commentary or rebuttal whatseoever, as if that somehow answers or resolves anything, is unbelieveably dense, and is precisely why I can’t take your simpleminded opinions about this sort of thing seriously.
ARRRGHH!!!! Seriously, ARRRGHH!!!!
(Disclaimer: I haven’t yet read any of the comments that followed Dane’s misquoting of Ben Franklin. I was so incensed by it, I just had to respond. I will now resume reading the other comments.)
May 12th, 2006 at 2:31:03 pm
Amidst all the crying about a lack of oversight, it’s worth pointing out the Constitution simply does not empower the judiciary to issue declaratory judgments about public policy matters. This notion was rejected early on in our country’s legal history. Contrary to what many seem to believe, the President does not have to run public policy issues by the courts and get their approval. Any 1L can tell you that the courts hear only actual cases and controversies. If someone brings a lawsuit challenging this or any other government policy, the courts will be in a position to consider the case. Many of the complaints I’ve read about a lack of judicial oversight merely demonstrate ignorance about law and the Constitution. But this is to be expected when so many fancy themselves lawyers-for-a-day.
May 12th, 2006 at 2:44:39 pm
“[I]f we’re going to have a national conversation about government data mining, by all means let’s have it. But let’s not just put the administration and General Hayden under the microscope. Let’s examine the practices of the opposition that purports to find warehousing information and tracking data about American citizens to be the death-knell of liberty. Let’s take a hard look at the elected officials who are taking a hard look at the NSA. Here are a just a few questions we might ask Democratic-party chairman Howard Dean and the members of the judiciary and intelligence committees currently grousing for the cameras:
Do you maintain databases of American citizens for fundraising purposes?
Do those databases contain names, addresses, telephone numbers, e-mail addresses, and other identifying information?
Do the databases contain information about the interests of the citizens who have been entered into them? About candidates or causes to which they have previously donated money?
Are those databases searchable? If so, what search criteria do you use to divide these American citizens into various categories?
Do you do targeted mailings for purposes of raising funds or pushing particular issues?
When you target, how do you know whom to target? That is, what kind of information do you maintain in your databases to guide you about which potential donors or voters might be fruitful to tap on which particular issues?
Do you trade information about American citizens with other politicians and organizations in the expectation that they might reciprocate and you all might mutually exploit the benefits?
“I’m betting the answers to these questions might prove pretty interesting. Hard as this may be to comprehend, we may even find that our Big Brother on Capitol Hill has been collecting information on all of us … without (gasp!) judicial warrants.”
� Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.
May 12th, 2006 at 2:45:33 pm
Good comments, all. Well, okay, not “all,” but “most.” :) Indeed, even some folks whose opinions I typically find unhelpful, had some insightful things to say. I need to keep thinking about this issue, but I do appreciate the lively debate.
I do want to point out one other thing. David, when you said “Which is all fine and dandy but as has been pointed out in numerous links to law above in order to turn that information over to the police their needs to be a warrant,” you do realize that you were arguing against a SUPREME COURT OPINION, right? So basically you’re saying that your understanding of the Constitution is superior to the tribunal which is charged with authoritatively interpreting the Constitution?
Mind you, it’s OK to disagree with the Supreme Court. Certainly, I disagree with them on plenty of things. But, based on the way you phrased your argument, I’m not sure you realized that you were in fact disagreeing with the Supreme Court. You seemed to believe that you were simply disagreeing with a commenter on this post. If you want to disagree with the Supreme Court about the meaning of the Fourth Amendment, you’re going to have to do a bit more than conclusorily state that they’re wrong and you’re right.
May 12th, 2006 at 2:50:26 pm
LOL . . . since when has David let something as trivial as SCOTUS get in the way of his legal analysis?
May 12th, 2006 at 3:12:40 pm
Brendan, who are you calling simple minded… Your the one that thinks the government spying on people, illegally collecting phone records without cause, as well as, apparently other documents including medical records (this according to CNN, though they were sketchy on the scenarios in which the NSA obtains those records). I think it’s rather simple minded of you to think the government should be doing this stuff.
By the way, I still think the Franklin quote applies. You are too quick to give up freedoms thinking it might gain you some security, which it wont, to deserve either. Honestly Brendan, get your thumb out of your ass.
May 12th, 2006 at 3:13:31 pm
Between Mendacious Mouse putting her full legal faith and understanding in a Democratic memo from one Democratic bunch to another Democratic bunch, and the rest of the D-list being Democratic shrills, the echo-chamber effect is working way too much overtime …
A number of folk elsewhere have observed that the info being given/sold to the “Government” just happens to be the information that the companies share with their own business partners quite freely, as I understand it …
Don’t know if anyone has asked yet, but … Qwest has said they declined to hand over info without a warrant … has anyone asked Qwest if they handed it over *after* a warrant was produced ?
May 12th, 2006 at 3:13:46 pm
Joe Mama,
I can’t speak for the rest of the laymen on this blog, but I absolutely, definitively, am not a lawyer. I didn’t even stay at a Holiday Inn last night.
So, if in ranting for checks and balances, I asked for the wrong group to be checking on the balancing, well, for courtesy, will you please just assume I meant the right one? :)
May 12th, 2006 at 3:15:22 pm
Brendan @ 2:29 - I havta ask …
Is the “ARRRGHH!!!” in response to the less than stellar intellect and consistency being shown, or did I miss an obscure Pirate Day reference ? (or both ?) (grrrrrrrrin)
May 12th, 2006 at 3:23:16 pm
Alasdair, no warrant for any of this was ever produced.
And, just to clarfy a point that I feel the need to hit over the head. I looked at your Franklin rebuttal again, I find it wanting, incompetent, incomplete, and utterly useless. Freedom should be fiercely protected and the default position should be protecting it. I say again, extricate your thumb from your butt.
Oh, and Alasdair, your comments are beneath contempt and less than useless at nearly all times.
May 12th, 2006 at 3:30:28 pm
I have two basic objections to the NSA program of collecting records of all telephone calls, which I don’t think the media has adequately addressed.
First, I think there’s no logical reason, if the President’s argument is accepted, why he *couldn’t* randomly tap into domestic telephone conversations (or have computers tap into all of them), if he believed it was in the national interest. And that, I’d find troubling.
Second, there’s absolutely no guarantee that the information the NSA gathers will be used *only* to hunt down terrorists. Until now, the very secrecy of the program acted as a sort of rough guarantee aganst its abuse. But if it’s acknowledged to exist, and the public signals that it’s O.K. with that, then I predict it won’t be long at all before the database’s use is expanded to broader and broader classes of criminal investigations. Eventually, it could end up being used for *all* of them.
And THAT, I have a problem with. I could live with this program if I could be certain that it would only ever be used to investigate terrorists, and that it would never be expanded to include universal wiretaps. . . but at the moment, there simply aren’t any.
May 12th, 2006 at 3:30:31 pm
Consider it assumed, Jazz :-)
May 12th, 2006 at 3:37:55 pm
you do realize that you were arguing against a SUPREME COURT OPINION, right?
Which opinion is that exactly? The one that I have seen reported here is that people can’t expect the police not to be able to obtain their phone records, which is fine, I expect them to be able to as well WITH A WARRANT. Now if you can point me to a case where the police can obtain my phone records without a warrant then fine, I will concede that atleast there is precedent for this. I still think its wrong, but I will atleast concede that point.
May 12th, 2006 at 3:44:39 pm
And don’t really think anyone objects to it being relatively easy to get a warrant for the information. But there should be some hurdle to clear and not just have the phone companies send in all the phone records.