December 20, 2005

MORE ON THE WHOLE NSA STORY: I don't have much to add on the legal analysis linked to earlier, though I still wonder why, exactly, the Administration didn't just go through FISA. Noah Schachtman continues to pursue the technological theory -- that the methodology being used didn't fit under the FISA umbrella.

Independent from the question of whether this is legal, of course, is the separate charge that the program represents a Bushitlerian departure from prior standards. That seems to be hard to maintain -- in many ways, Bush's policies are merely a continuation of those under Clinton, only with somewhat more vigor post 9/11. If you want to look back on the Clinton Administration as some sort of civil-liberties golden age, you probably shouldn't read this report from the CATO Institute entitled "Dereliction of Duty: The Constitutional Record of President Clinton." But here's a relevant excerpt:

The Clinton administration has repeatedly attempted to play down the significance of the warrant clause. In fact, President Clinton has asserted the power to conduct warrantless searches, warrantless drug testing of public school students, and warrantless wiretapping.

The Clinton administration claims that it can bypass the warrant clause for "national security" purposes. In July 1994 Deputy Attorney General Jamie S. Gorelick told the House Select Committee on Intelligence that the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes." [51] According to Gorelick, the president (or his attorney general) need only satisfy himself that an American is working in conjunction with a foreign power before a search can take place. . . .

It is unclear why the president made warrantless roving wiretaps a priority matter since judges routinely approve wiretap applications by federal prosecutors. According to a 1995 report by the Administrative Office of U.S. Courts, it had been years since a federal district court turned down a prosecutor's request for a wiretap order. [68] President Clinton is apparently seeking to free his administration from any potential judicial interference with its wiretapping plans. There is a problem, of course, with the power that the president desires: it is precisely the sort of unchecked power that the Fourth Amendment's warrant clause was designed to curb. As the Supreme Court noted in Katz v. United States (1967), the judicial procedure of antecedent justification before a neutral magistrate is a "constitutional precondition," not only to the search of a home, but also to eavesdropping on private conversations within the home. [69]

President Clinton also lobbied for and signed the Orwellian Communications Assistance for Law Enforcement Act, which is forcing every telephone company in America to retrofit its phone lines and networks so that they will be more accessible to police wiretaps.

Whether this view is right or not is a separate question from the easy-to-refute claim that it's an entirely unprecedented creation of the power-mad Bushitler Administration. It's odd, then, that it's the easy-to-refute claim that's being pushed.

If you'd like more on this topic, Jeff Goldstein has a huge, link-rich roundup.

UPDATE: Sherman, set the Wayback Machine for 1979!