Wednesday, February 08, 2006

Domestic spying vs. domestic-international spying

In the second day of hearings on the illegal warrantless wiretapping, critics wondered why the program is limited to calls crossing borders:
"The rationale for this surveillance has nothing to do with anything tied to a border," said Geoffrey R. Stone, a University of Chicago law professor critical of the administration's legal justifications for the NSA program.

"There's no pragmatic reason and no principled reason why, if it is okay for NSA to listen in on phone calls between someone in Detroit and Pakistan without a warrant, they also can't listen in on a phone call between Detroit and New York," Stone said.

Bruce Fein, a deputy attorney general in the Reagan administration who is among a number of prominent Republican critics of the NSA program, said the argument underscores what he views as a lack of consistency in the administration's legal arguments.

"If it's good enough for international calls, then it should be good enough for domestic calls, too," Fein said.

Gonzales told senators that Bush had considered including purely domestic communications in the spying program. The idea was rejected in part because of fear of public outcry. He also said the Justice Department had not fully analyzed the legal issues of such a move.
And since the Keith decision rejected this broad claim for domestic surveillance, any legal argument which doesn't encompass the reasoning in Keith cannot be valid. If Congress and the 4th amendment can restrict domestic surveillance, surely surveillance of American citizens going about their business enjoy protections if they happen to make an international phone call.

The Keith decision explains:

The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. Senator Hart addressed this dilemma in the floor debate:

"As I read it - and this is my fear - we are saying that the President, on his motion, could declare - name your favorite poison - draft dodgers, Black Muslims, the Ku Klux Klan, or civil rights activists to be a clear and present danger to the structure or existence of the Government."

The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.
And as we know civil rights protesters were subjected to just such surveillance based on exactly that reasoning. Keith restricted itself to a consideration of domestic surveillance and did not establish any precedent for international calls. But the reasoning here is not specific to domestic surveillance. Any warrantless surveillance raises these concerns.

I've taken to calling the President the God-King because he's arrogated monarchal powers to himself and isolates himself from the world around him. The warrantless spying is one instance of this, but examples are abundant.

Privatizing Social Security was a bad idea. The public hated it, and the more they learned about it, the less they liked it. It died a silent death.

Or so we thought. The God-king resurrected it, slipping his plan into the budget as if it was the best idea ever. He also slipped revenue from ANWR drilling back in, even though it has been repeatedly shot down and removed from the budget by a majority of the Senate (not just a 40 member filibuster).

I respect the office, and make an honest effort to refer to the President and the White House by title when appropriate. I may have a mean name for Senator Ted "f---ing moron" Stevens, but I always give him the respect of his title, and the same goes for Attorney General Alberto "Bind, Torture, Kill" Gonzales. You respect the uniform, as they say. I think the President has exceeded the powers of his office, and I think his extra-legal actions deserve to be distinguished from his legitimate actions.

My criticism has driven at least one person into raving lunacy, which is unfortunate. I want a serious debate. We have serious debates. Bad ideas get shot down. I think the bad ideas have gone where bad ideas go when they're dead. Then the God-king just yanks them back out, dusts them off, and acts like a polished turd smells any sweeter. That isn't policy, it isn't debate, and it isn't respectful of anyone else. It reflects an attitude toward the public and toward his opposition (which increasingly is coming from the libertarian and moderate wings of his own party) that is undemocratically dismissive.

Senators have raised serious questions about the legality and legitimacy of the warrantless wiretapping. Real oversight benefits everyone. If the President has truly been as protective of our rights as he claims, he has nothing to hide, and the Congress will see that and give the program legitimacy. Everyone wins. But instead of cooperating fully, he sent his attorney general to stonewall for a day, and then made threats behind closed doors that any Senator who was too strident about the warrantless wiretapping would get no support from the White House.

That isn't democracy. That's what the God-king does right before the Caligulan orgies start.

PS: Greetings to the spies reading blogs. Enjoy!