FISA violations and unlimited power
Have people been following the latest goings-on related to the NSA wiretapping? Talking with my parents tonight, I happened to summarize it in a way that made it seem all the more absurd to me. Here’s the story:
The White House originally claimed that the Authorization for the Use of Military Force (AUMF) bought them the authority to wiretap phone calls between the U.S. and foreign destinations without a warrant. They knew this was a bogus argument, but they made it anyway.
A lot of people wondered why the White House didn’t just get the FISA warrants, if they were as easy to get as everyone said. Turns out that — as you would expect — they knew that they wouldn’t be able to get the warrants, because what the NSA is doing amounts to panning for gold: they wiretap the big trunk lines that AT&T has, and wait for anything interesting to come their way. To my untrained legal eye, this looks like a classic general search that the Fourth Amendment was meant to prevent.
We’d challenge this in court, but we can’t, because no one can get standing. That is, since the NSA isn’t saying whose conversations they’ve wiretapped, no one can prove that he or she was harmed by the wiretaps.
Chuck Schumer recently introduced a bill (S.2468) that would grant standing to those who regularly communicate with people in “Afghanistan, Iraq, Pakistan, or any country designated as a state sponsor of terrorism in the course of . . . paid employment doing journalistic, academic, or other research pertaining to terrorism or terrorist groups,” or to those who have carried out commercial transactions with those countries; the bill would fast-track any appeals to the Supreme Court, to get this question resolved quickly. The bill stands no chance of passage — at least as long as Republicans are in the majority — but it’s our only hope.
Attorney General Gonzales admitted on Thursday that he would not rule out warrantless wiretapping on purely domestic phone calls (i.e., those originating and terminating in the U.S.). Which is, unless I’m misreading things, an admission that the White House believes it’s not bound by the Fourth Amendment. We could be conservative and assume that they would only violate the Fourth Amendment in the course of the war on terror — in which case it looks legitimate, if you view the war on terror as a war, with all the loosened laws and morals that that implies. If you believe that the war on terror should still require the president to act within the bounds of the Constitution, then you will necessarily have a different view of this latest admission. This isn’t an academic debate over which principles to apply when, either; it’s a debate about a fundamental weakening of American law. If the president can violate the Fourth Amendment — and presumably any other Amendment — whenever he chooses, then we have no Constitution left that’s worth the name.
P.S. (8 April 2006): Former AT&T technician Mark Klein has testified about what the NSA is doing. (Via Kevin Drum.)