GoogleIt Mail IT Print IT PermaLinkLet's Get This Straight: The Court Did Not Say NSA Wiretapping Has To Stop
07:51:54 AM

Predictably, comment threads (like this one) on various sites reporting about yesterday's court ruling against the NSA wiretapping program, are gathering lots of remarks like "has anyone noticed that we're at war?" and "another victory for the terrorists". I imagine that certain professional pundits will be saying the same today, if they haven't already done it.


Nothing could be further from the truth.


The ruling does not mean the that NSA can not do these wiretaps. It means that they must do the paperwork required to get warrants and follow the procedures required by the FISA law in order to do these wiretaps -- which is exactly what the NSA's own web site still says they have to do. Yes, that's right. After all this controversy and fighting multiple court cases, the NSA site still says:


The 4th Amendment of the Constitution demands it... oversight committees within all three branches of the U.S. government ensure it... and NSA employees, as U.S. citizens, have a vested interest in upholding it. Respecting the law is only a part of gaining Americans' trust.


All the NSA has to do to make this program legal is do the paperwork. Get the warrants. Follow the procedures laid out by law.


That's all.


You won't find a single intelligent opponent of this program who will say otherwise, and you will find only an insignificant number of opponents of the program who would want the NSA not to do so.


The NSA can even do the paperwork, get the warrants, and follow the procedures required by law after the fact. The FISA statute allows that. Congress was not stupid when they passed this law. They balanced freedom of Americans versus the critical need for foreign intelligence and came up with a good law that the present administration has not seen fit to ask Congress to change! Instead, they merely ignore it. That's what the judge has ruled against. That is all the judge has ruled against.


The decision cites both fourth and first amendment grounds, provisions of the FISA law, and analysis of government claims of state secret privilege, commander in chief powers, and congressional authorization through the authorization for use of military force. Extensive citation of relevant case law is used throughout. I'm not sure that the first amendment grounds stand up, because I don't think that freedom of speech and association (through the right to peaceably assemble) guarantee that you can talk to whomever you want, when you want, where you want and how you want. There are too many obvious exceptions to that, and I dont think the judge has examined that part of the issue carefully enough. The rest of the grounds in the decision, however, should be sufficient to uphold the ruling, IMHO, though I'll be interested in seeing the post-mortem on this decsion from more knowledgeable legal minds, some of whom had concluded early on that the program was probably defensible on constitutional grounds but in violation of the FISA law and therefore still illegal.


Oh, and yes... I have read the decision. You should, too, rather than just listening to your favorite pundits. If you disagree with me and care to comment here, I expect to see citations of the exact parts of the decision that you feel are wrong.

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Comments :v

1. Carl08/18/2006 09:13:20 AM
Homepage: http://www.iminstant.com


Nicely said!




2. Chris Whisonant08/18/2006 09:30:42 AM
Homepage: http://cwhisonant.blogspot.com


I do have a question - has the Bush administration changed its methods since the Times story was first published? I'm just wondering if they were still going warrantless.

Good post.




3. David Bailey08/18/2006 09:54:09 AM


@2. Who knows? President Cheney and crew do whatever they want to do AND they don't talk about it until they're caught.




4. Richard Schwartz08/18/2006 11:13:14 AM
Homepage: http://www.rhs.com/poweroftheschwartz


@2: Well, they have said that they have not; and they have said that they have no intention of changing. But what they say, and what they are actually doing, could be two different things.




5. Chris Whisonant08/18/2006 01:01:29 PM
Homepage: http://cwhisonant.blogspot.com


@3 - That goes the same for all politicians....




6. Richard Schwartz08/18/2006 02:02:36 PM
Homepage: http://www.rhs.com/poweroftheschwartz


@5: And all involved in intelligence work.




7. Chris Whisonant08/18/2006 02:30:11 PM
Homepage: http://cwhisonant.blogspot.com


It's easier to ask for forgiveness than for permission...




8. Amy B08/18/2006 05:27:18 PM


Say it loud, brother!

Bush is fighting the ruling cause the Constitution just doesn't understand the circumstances.




9. Richard Schwartz08/18/2006 07:48:16 PM
Homepage: http://www.rhs.com/poweroftheschwartz


@7: And ironically, FISA is structured to allow the NSA to ask for forgiveness through a retroactive request for a warrant.

@8: Right. The Consitution isn't a decider. Like me. And most of those foundering farmers who wrote it, they weren't deciders either. They didn't get to be elected deciders. They were just these guys at the convention. The Consitution Convention is what they called it back then. A long time ago, they were conventional guys. Conventioners. Conventioners aren't deciders. Conventioners are nomnators. Conventioners nomnated me twice and I'm still the decider on account of that. Those foundering farmers were compermisers, too. They compermised all the time. They were great compermisers, and thats how they made the President the decider and the Congress and the courts not the deciders. Just one decider, and vice president decider. That was the compermise. I'm the decider and I'm not going to compermise. I don't have to compermise because the President doesn't compermise. Compermise is for conventioners. Non-deciders. I'm not going to compermise safety of the merican people.

Warrants? We don need no steenkin warrants.




10. Bruce Perry08/19/2006 11:19:03 AM
Homepage: http://www.bhrpconsulting.com


@9 - Brilliant!




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