Thursday, 18 January 2007

The tapping point

The New York Times reports:

The Bush administration, in a surprise reversal, said on Wednesday that it had agreed to give a secret court jurisdiction over the National Security Agency’s wiretapping program and would end its practice of eavesdropping without warrants on Americans suspected of ties to terrorists.

The Justice Department said it had worked out an “innovative” arrangement with the Foreign Intelligence Surveillance Court that provided the “necessary speed and agility” to provide court approval to monitor international communications of people inside the United States without jeopardizing national security.

The decision capped 13 months of bruising national debate over the reach of the president’s wartime authorities and his claims of executive power, and it came as the administration faced legal and political hurdles in its effort to continue the surveillance program.

Stepping back on the wiretapping power is another great political PR move by the White House. This latest change in executive policy accompanies Bush’s admission that Iraq was going “unacceptable” and much blame lied with him and the challenge various White House officials (including the president) gave to those who did not support the Bush administration’s Iraq policy to ‘come up with their own plan if they think they can do better’. But don’t get too excited about the allowing of secret judicial oversight for already-illegal wiretapping programs, there are several problems. One is that the wiretapping will continue, another is that it was happening in the first place, yet another is United States Attorney-General Alberto Gonzales’s testimony to Congress, and another is GITMO. Of course, the list of this administration’s civil liberty and human rights violations and issues does not stop there. The authorization by President Bush of the ‘terrorist’ surveillance program in the first place was a vast, vast overreaching of executive power. Just one more thing: [NYT]
The Justice Department said it had worked out an “innovative” arrangement with the Foreign Intelligence Surveillance Court that provided the “necessary speed and agility” to provide court approval to monitor international communications of people inside the United States without jeopardizing national security.

Justice Department officials would not describe whether the court had agreed to new procedures to streamline the process of issuing orders or accepted new standards to make it easier for the government to get approval to monitor suspect e-mail and phone communications.

And its not very judicial-like to not go case-by-case either, especially when the matter deals with people’s civil liberties.
Ms. Wilson, who has scrutinized the program for the last year, said she believed the new approach relied on a blanket, “programmatic” approval of the president’s surveillance program, rather than approval of individual warrants.

Yeah, don’t get your hopes up that the Bush administration is turning a new leaf on its “war on terrorism” policies. Even with FISA, it is not like the wiretappings are totally kosher, because the FISA courts surely are not. In a society celled a democracy, the United States has a odd way of handling its justice system and its crusades against "bad" people and things (e.g. terrorism, drugs).

There are still numerous — lawsuits pending and active — over the surveillance program, launched by everyone from legal scholars to journalists to the ACLU.

There are two fantastic Balkinization blog posts on this topic and the new developments. From one of them
First, there is a remarkable similarity between the Administration's behavior in the Padilla case and its behavior here. Recall that the Administration held Padilla in a military prison for three years and insisted that he could not speak to anyone-- much less have the basic rights in the Bill of Rights-- because to do so would put our country at grave risk. Once the Administration realized that the Supreme Court would likely reject its theory of Presidential power, it backtracked and placed Padilla in the criminal justice system-- thus undermining all of its predictions and assertions. It moved Padilla out of a military prison and brought an entirely different set of charges against him, hoping to moot the challenge to what it had done to Padilla earlier and prevent an authoritative rejection of its implausible claims about the powers of the Presidency.

Similarly, in this case, the Administration insisted for months that the President did not need to follow the procedures in FISA, either because of the AUMF or because of inherent Presidential authority. Apparently, it has now retreated from that legally untenable position, hoping to moot, or at the very least disarm, federal litigation challenging the legality of the NSA program. Once again, the goal is to prevent a court from stating clearly that the President acted illegally and that his theories of executive power are self-serving hokum.

When we put these two stories together, a pattern emerges: the Administration repeatedly takes unreasonable positions about its powers. It insists that obedience to these views is necessary to the very survival of the Republic and that those who would dare to disagree are jeopardizing national security. It makes these aggressive claims repeatedly in every venue, hoping that others, cowed by its aggressive self-confidence and patriotic appeals, will be overawed and simply give in. It struts and boasts and threatens and exaggerates until its bluff is called, at which point its previous assertions simply become-- as they once put it in the Nixon Administration-- inoperative. Put another way, the Administration's stance on Presidential power has resembled nothing so much as an altogether familiar character, the neighborhood bully.

Remember a while back when a federal judge ordered the surveillance and illegal wiretapping to stop? This president's commitments to democracy — and definition of democracy — seems to be quite warped, and no other branch, in his mind, can stop him, neither can the constitution (thus far).

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