Wednesday, December 21, 2005

At Least I Agree There's A "Domestic Intelligence Crisis"

by Tom Bozzo

From Ken Houghton, Feb. 11, 2005:
I swore off [the Becker/Posner Blog] when I realised that Marginal Revolution was at least willing to defend its politics and leaps of logic, instead of the Becker/Posner "we rule by fiat."
That's a comment as relevant today as it was ten months ago, as it turns out.

Richard Posner, Dec. 21, 2005:
These programs (*) are criticized as grave threats to civil liberties. They are not.
Well, that clears up everything. Thanks!

I'm sure that Judge Posner's personal opinion would never affect his rulings over there at the seventh circuit court of appeals, because that would be judicial activism.

(*) The NSA's extra-FISA eavesdropping, the Pentagon's CIFA program, the Pentagon's charmingly-named "Information Dominance Center."
Good editorial here by John Schmidt, who "served under President Clinton from 1994 to 1997 as the associate attorney general of the United States."
It's somewhat off-point, though, as the snooping in question was outside the FISA provisions for warrantless searches pertaining to foreign intelligence (foreign agents, foreign powers, etc. -- i.e., not U.S. persons). The op-ed also uses the Gorelick mischaracterization disposed of previously. It also dances around the problem that there's this pesky Fourth Amendment that incontrovertibly addresses searches of U.S. persons:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
While it's true that our Fourth Amendment rights are much weaker than most of us generally suppose, those rights still exist and this case is a prima facie violation of them.

What I find much more worrisome, even than that, is the assertion that the president has unlimited power under Article II, either because the of open-ended Authorization of Military Force, or because he believes there to be a state of emergency.

When you combine that reading of Article II with the idea of "secret" legal findings (made for the president, by the president), the problem is far more of a constitutional crisis than an esoteric dispute about the distinction between "U.S. persons" and "agents of a foreign power".

The constitutional crisis is in addition to the obvious abuse of power stemming from the statutory violation of the FISA Act, which in and of itself would be a huge problem.
Ben: Excellent points.

Even assuming arguendo that comparisons between present circumstances and past declared wars against foreign states were valid, a key distinction would be that the latter are closed-ended.

The administration's tendency to torture any statutory language into supporting its policies is also extremely troubling, though it's of a piece with the economic "logic" behind the administration's assertions that whatever the economic situation, the correct policy response is more tax cuts.
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