The Spying Controversy: Engaging Bush's Apologists

Over the last few days, I've been attempting to engage Jeff Goldstein of Protein Wisdom in a debate over the legality of Bush's NSA spying program. Goldstein is one of Bush's staunchest defenders on this issue. To his credit, Goldstein hasn't shied away from the debate.

It all began when I responded, with clear exasperation, to this post on the wiretapping issue. That led to this rebuttal by Jeff, followed by my reply. Jeff then devoted a new post to this exchange, and eventually another. If you're interested in this debate, I'd encourage you read all three of these posts, particularly the comment sections. A number of other very capable writers joined the fray, and the exchange has been lively, informative, and at times quite funny. At the very least you'll come away with a good sense of what arguments each side is putting forward (and you should get a sense of their relative merit).

I want to take a second here, though, to address an assertion that Jeff and a number of other Bush defenders have made repeatedly. In his latest post on this topic, Jeff writes:

[T]he administration, under AUMF, is treating
the al Qaeda threat as a war; civil libertarian
absolutists and the Dem leadership are
treating it as a law enforcement issue
domestically, complete with attendant
vigorous defenses of fourth amendment
protections for would-be terrorists, including
demands for FISA warrants (which were
intended as a law enforcement tool, and are
in fact, if I’m correct, still be used as such), and
spirited attacks on our foreign intel gathering
capabilities.

This argument is so incredibly ass-backwards that its staggering. The Foreign Intelligence Surveillance Act, as you might guess from its name, is a statute that regulates the type of surveillance used for foreign intelligence gathering purposes. Contrary to Jeff's contention, it has nothing whatsoever to do with law enforcement surveillance. Traditional law enforcement surveillance (of the mob, drug dealers, etc.) is governed by a totally different statute, Title III of the Omnibus Crime Act of 1968 (the "Wiretap Act"). Securing a warrant under FISA is considerably easier than under Title III; it doesn't require a showing of probable cause that a crime has been or is about to be committed. The only reason this less rigorous standard is constitutionally acceptable is because, under FISA, to secure a warrant you must first assure the court that a "significant purpose of the surveillance is to obtain foreign intelligence information” (prior to the passage of the Patriot Act, officials had to assure the court that this was the “primary purpose" of the surveillance). This requirement was included to ensure that FISA is used ONLY for foreign intelligence gathering and NEVER for mere law enforcement purposes. In fact, that is FISA’s entire reason for being. Otherwise it would be unnecessary, redundant, and it would violate the 4th amendment. So to say that Bush's defenders are confused on this point would be a massive understatement.

Another common theme among Bush's defenders (and Jeff is no exception) is a willingness to declare that the spy program is good policy while at the same time claiming that we don't yet know enough about the program to assess its legality. This is an astoundingly incoherent position. As a basic matter, policy analysis is much more fact-intensive than legal analysis. To know whether something is good policy or not you generally need to know ALL the facts. That's just the nature of policy analysis. One small detail can turn an otherwise good idea into a spectacularly bad one. The same is not at all true about legal analysis. The law is the law; it's all a matter of public record. Determing whether a program runs afoul of the law only requires knowing a few legally significant facts.

And we do know some facts about this program. For instance, Alberto Gonzales has stated clearly that “the Foreign Intelligence Surveillance Act provides--requires a court order before engaging in this kind of surveillance that I’ve just discussed and the President announced on Saturday.” And the president himself has stated that the NSA is intercepting calls to which U.S. citizens are parties. From a legal standpoint, those are the only facts we need to know. FISA unquestionably prohibits warrantless surveillance of U.S. citizens.

You can argue, of course, that FISA is unconstitutional, or that the AUMF superseded FISA, or that the AUMF is an "other statute" under FISA, but these are all legal arguments. They don’t depend on any facts we don’t already know. So unless Gonzales and Bush are lying, we have all the information necessary to assess the legality of the program.

But while the legal debate is ripe for discussion, the policy debate is most certainly not. We don’t know how the program works, what technology or processes it employs, what safeguards or oversight (if any) are in place, or if there has been any abuse. All of these questions are highly relevant to any policy analysis of the program. Yet despite all this, Jeff and others have no problem declaring their support for the program and, at the same time, admonishing the rest of us for engaging in premature legal speculation. Incredible.

On an encouraging note, at least some people are starting to speak up. Jeffrey H. Smith, former CIA General Counsel, has written a 14 page memo to Congress in which he argues quite convincingly that the President's NSA spying program is illegal (a link can be found at the Brad Blog). Harvard constitutional law professor Larry Tribe has also written a letter to Congress arguing that the program is illegal. Both offer thorough, well-reasoned, and incredibly persuasive arguments. I encourage you to read them.