Tuesday, January 03, 2006
Response to William Kristol on NSA Surveillance Program
He accuses anyone who questions the President's actions of, in essence, being delusional because they must believe that "the terror threat is mostly imaginary," and being paranoid because they are "ready to believe the worst about American public servants."
Kristol asserts FISA was "broken" well before 9/11. Kristol constructs a straw man out of the following questions which assume facts established nowhere other than the blathering of his fellow Bush apologists: "Was the president to ignore the evident fact that FISA's procedures and strictures were simply incompatible with dealing with the al Qaeda threat in an expeditious manner? Was the president to ignore the obvious incapacity of any court, operating under any intelligible legal standard, to judge surveillance decisions involving the sweeping of massive numbers of cell phones and emails by high-speed computers in order even to know where to focus resources? Was the president, in the wake of 9/11, and with the threat of imminent new attacks, really supposed to sit on his hands and gamble that Congress might figure out a way to fix FISA, if it could even be fixed?" Kristol in his characteristically smug fashion topples his own straw man when he writes: "The questions answer themselves."
Mr. Kristol, here are the correct answers to your questions:
1. Was the president to ignore the evident fact that FISA's procedures and strictures were simply incompatible with dealing with the al Qaeda threat in an expeditious manner?
- The FISA Court which issues the warrants is and has always been a rubber-stamp. In the past twenty years, only something like five warrant requests were denied by the FISA Court.
- In addition, FISA contains a provision, 50 U.S.C. sec. 1810, allowing the President, through the Attorney General, to authorize electronic surveillance without a court order to acquire foreign intelligence information during wartime for a period not to exceed 15 days. At or before the end of the 15 day period, the President could apply for and obtain the necessary warrants for the continuation of such surveillance. No facts have been disclosed to date to suggest that the nature of the NSA electronic surveillance program is such that applying for warrants to continue wartime surveillance beyond the 15 day period would be impracticable.
- Shortly after 9/11, in the process of passing the Patriot Act, changes to the FISA statute were recommended by the Bush Administration, passed by Congress, and signed into law by President Bush. If President Bush truly believed that FISA's procedures and strictures were incompatible with dealing with the al-Qaeda threat in an expeditious manner, then the President could have and should have proposed the necessary fixes to amend FISA's procedures and strictures so that they will be compatible with dealing with the al-Qaeda threat in an expeditious manner.
- The unstated premise of Kristol's question is that President Bush chose not to comply with FISA because its procedures and strictures were incompatible with dealing with threats in an expeditious manner. Kristol's question is, therefore, simply a disingenous rhetorical tactic because the President's legal advisors have taken the position, not that the President ignored FISA because the law does not work, but that, during wartime, the President has the constitutional power to ignore any federal law that might interfere with action he, in his sole discretion, deems advisable concerning the conduct of war.
- Thus, the President did, in fact, ignore any perceived inadequacies in the FISA procedures. In fact, the President regards FISA as irrelevant in these circumstances.
2. Was the president to ignore the obvious incapacity of any court, operating under any intelligible legal standard, to judge surveillance decisions involving the sweeping of massive numbers of cell phones and emails by high-speed computers in order even to know where to focus resources?
- This question adds the unstated premise that not only is FISA incompatible to deal with the al-Qaeda threat, but that there is no conceivable legal standard by which surveillance decisions involving sweeping massive numbers of cell phones and e-mails by high-speed computers can be judged by any court.
- High-speed computers can only perform those tasks human programmers instruct them to perform. The human programmers presumably design algorithms that instruct the computers how to decide what cell phones and e-mails to sweep and how to determine what constitutes a "hit" worthy of further surveillance. There is no reason why a legal standard could not be developed by which a court could reasonably judge whether the instructions to be fed into the computers will or will not result in sweeps that are overly broad or intrusive for their intended purpose.
- Kristol's unstated premise begs an interesting question. If there is no conceivable legal standard by which any court could judge surveillance decisions of the type posited by Kristol, what standard is used by the NSA to make such surveillance decisions, assuming the NSA applies any standard at all? Of course, this is a national security secret that is unlikely to be divulged. But if there is such a standard, and it can be articulated by the NSA, then why would a reviewing court necessarily be precluded from utilizing that standard to judge the surveillance decisions?
- Again, however, Kristol is being disingenous. The President's stated legal position is that, during wartime, he is not bound by any law or legal standard that might limit his power as commander-in-chief to conduct war as he determines best. When it comes to the conduct of war, the President has unbridled discretion. Thus, the President did not order warrantless surveillance because there is no conceivable legal standard or court capable of judging his decisions. The President did so after his legal advisors opined for him that his decisions concerning the conduct of war are not required to comply with any law or legal standard.
- Thus, the President, in fact, ignored the alleged incapacity of any court to judge surveillance decisions. In fact, the President regards legal standards and reviewing courts as irrelevant to the surveillance decisions at issue.
3. Was the president, in the wake of 9/11, and with the threat of imminent new attacks, really supposed to sit on his hands and gamble that Congress might figure out a way to fix FISA, if it could even be fixed?
- No one has suggested the President was supposed to sit on his hands and gamble that Congress might figure out a way to fix FISA.
- Presumably, the President and his advisors were, at all relevant times, fully capable of figuring out a way to fix FISA.
- But why would they worry about fixing FISA when the President's legal advisors had concluded that the President is authorized by Article II of the U.S. Constitution to issue orders for warrantless surveillance during wartime regardless of what limits might be imposed by federal law?
Those who question the legality of the President's authorization for the NSA to conduct warrantless surveillance against U.S. citizens in circumvention of FISA do not believe "the terror threat is imaginary." The threat of terror is real. But now, in addition to the threat of terror, we are faced with the threat of a president who appears to have arrogated to himself the power to act in blatant disregard of federal law. As former Republican Congressman Jim Rogan stated during the House debate on impeaching President Clinton: "National security is not more important than the rule of law, because without it, there can be no security and there is little left to defend." Or as American Founding Father Benjamin Franklin once said, "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." Apparently, Kristol sides with those Bush apologists who ask "what good are civil liberties if you're dead?" Those who question the legality of the President's actions side with Patrick Henry who famously declared his preference for death over the absence of liberty.
Is it really a sign of paranoia not to trust American public servants to do the right thing? Who does Kristol think he's kidding? It is paranoid to believe you are being spied on when you are not. For today's U.S. citizen, the belief that he or she is being spied on is more realistic than ever.