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NSA Links

February 9, 2006

I’ve been reading a lot about the NSA wiretaps, and having a hard time distilling overwhelming amount of info, much of it in legalese.

I started with this post by Hugh Hewitt, which speaks to the large degree of posturing being done on the Left, which is supported by feeling rather than legal arguments. That led in turn to his interview with Cass Sunstein, which I found extremely reasonable and reasoned. You may assume that Sunstein is some hack because he happens to conform to Hugh’s view of the legalities of the NSA wiretaps. He’s not. (Sunstein is, among other things, author of Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America.)

Is his the only view? No. But to say that Bush is inventing something new or extreme is just a distortion of the facts. I’ve been wanting to write a big post on this subject, but there’s really no reason for me to do it when Jeff Goldstein has already done tons and tons of work. Start here and proceed. But only after you’ve read the Sunstein interview.

Lastly, for daily updates across the spectrum, try Pajama Media’s NSA Files.

Update: Here’s the link again to Michael Crichton’s "Fear & Complexity" essay I keep referring to. This is what I’m talking about when I say panic after panic has been proven false. This "constitutional crisis" is treading on the same ground IMHO.

6 Comments leave one →
  1. Ken permalink
    February 9, 2006 12:44 pm

    Emotional liberals aren’t the only ones concerned about the constitutionality of warrantless wiretaps. Some rational, conservative members of the administration have had their own reservations. I found this interesting, if a bit long-winded:

    Me? I’m a 4th Amendment guy. It’s one of my favorite sections of the Bill of Rights, so I’m a little biased.

    I sometimes wonder, dear Count, if you ever disagree with anything this administration has done.

  2. Count Grecula permalink
    February 9, 2006 2:08 pm

    Tell me what you agree with and I tell you what I disagree with. Deal?

    Also, my legally schooled friend, I would love it if I saw that you actually attempted to read at least the Sunstein interview. I understand no case is bullet proof, but I think you would have to conceed that this one is at least not completely full of holes.

    You are correct that not all of this contoversy is from the Left; my point is that most of it is put in terms of a political liability / emotional discomfort “It just can’t be this way” kind of argument. This is a legal, Constitutional issue that is being played out politically. So be it. I just don’t like it. Reservations could have been presented years ago. Why now? It’s the second term impeachment pattern that looks like it will be a permanent feature of the Presidency from here on out, wars and 9/11 type threats notwithstanding.

  3. Ken permalink
    February 9, 2006 3:37 pm

    I support Bush’s policies in the following ways:

    1. I admire his support for the adoption of the Solo 401(k), which allows independent business owners to establish their own retirement plans. In fairness to the previous administration, this was already in the works before Bush was elected, and may have actually been signed into law by Clinton, but I’m sure Bush supported it, and will therefore big him up for it.

    2. I applaud his efforts to bring fairness to the capital gains tax structure.

    3. I laud his boldness in bringing the issue of privatization of social security, at least in some form or another, to the table. This is not an easy thing for a politician to talk about in a society that is so beholden to its pensioners.

    I become wistful as I mention these things. These, my friend, are the things Republicans do best, and to bring them up makes me nostolgic for the time when issues like this were the focus of the party.

    OK, your turn.

    I did read the Cass Sustein interview, and thought it came down to this:

    The President may not, in theory, have acted in an illegal, unconstitutional way when he circumvented the statutorily prescribed procedure for obtaining wiretaps to spy on domestic communications. There is at least a cogent argument that he had the authority to do what he did, and a “liberal” legal scholar recognizes that such an argument exists (although I find the proposition that anyone at the University of Chicago could fairly be described as “liberal” to be dubious, at best [I say this with intended irony]).

    So, while Bush may steer clear of impeachment, dut does this make his actions right? Does the fact that Bush may have found a loophole around FISA justify what he’s done?

    This administration is, in my opinion, the most power-hungry since Teddy Roosevelt’s, and it continually kicks at the boundary of executive authority when it doesn’t think we’re looking, nudging it out inch-by-inch, in the most shameless ways.

    The erosion of civil liberties always begins for reasons that seem justifiable. But give them an inch, and they’ll take it, and then take another. Libertarian hysteria? Perhaps. But I’ll always err on the side of constitutional liberties.

    Consider how John Yoo’s “torture is okay” opinion was originally intended to apply to true terrorism suspects, and eventually led to naked guys, many of whom had no known ties to terrorism, being stacked in piles at Abu Ghraib. That quickly did that slope get slippery?

    I get a sick feeling in the pit of my stomach when I think about Americans torturing suspects, and this whole thing makes me feel the same way. It just seems . . . un-American.

    Anyway, in case you thought I’d forgotten about the strange monkey doll, I haven’t. I check in regularly. Kudos.

  4. Rufus T. Flinger (Timmy C) permalink
    February 9, 2006 3:42 pm

    For starters, I’m glad you found the Cass Susstien interview and article and liked his thinking…

    I will personally vouch having read a couple of his books (And “Radicals in Robes” is much better and balanced book than the title suggests…His writting in that book has strongly effected my thinking in Supreme Court philosophy…It is a good argument against “originalism” and for “minimalism”… but that is a seperate issue)

    But I’ll agree that Cass is a smart and thoughtful guy.

    But when you do read this, you have to see how tentative some of these statements are…

    …”I am not sure how strong this argument is”…”It is not clear that the President is right on [braking FISA Law] but it isn’t clear that he is wrong.”… and that the President’s case on the 4th Amendment is “not necessarily decisive, but plausible.”

    But he also says “It isn’t unreasonable to say that the more specific statute, FISA, trumps the more general, so that the wiretapping issue is effectively governed by FISA.”

    And calls out that:

    “Of course nothing I have said suggests that under the AUMF, the President can engage in surveillance of people without a tie to organizations or nations associated with the attacks of 9/11.”

    So it is as he often does, a fair look at a number of angles legally and “an exceedingly tentative analysis, with the purposes of disaggregating the issues and of suggesting that there are several unresolved questions here.”

    And after reading the other legal back and forth, I’m more than ever sure that it would be a waste of time for us to argue the legalitiy of this.

    It still seems to me that the Governement arguments boil down to these I mentioned before:

    1. The program was authorized by Congress in the September 2001 Authorization for the Use of Military Force (AUMF).

    2. As Commander-In-Chief, President Bush has the “inherent authority” to do whatever he wants.”

    3. This applies to wiretaping US citizens without checks or balances, but the same principal can apply to any of the war powers used against US citizens

    Am I hearing them correctly?

    (Thoughts on Chriton and the politics of fear in another future posting…)

  5. Rufus T. Flinger (Timmy C) permalink
    February 10, 2006 11:56 am


    “If we want to manage complexity, we must eliminate fear. Fear may draw a television audience. It may generate cash for an advocacy group. It may support the legal profession. But fear paralyzes us. It freezes us. And we need to be flexible in our responses, as we move into a new era of managing complexity. So we have to stop responding to fear.”

    Be Afraid. Be very afraid!

  6. February 11, 2006 10:41 pm

    I don’t understand your point. Can you elaborate?

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