Letters to the Editor
DCLaw1
Published Letters: 839 Editor's Choice: 2
-
The end of individualized suspicion
[Read the article: The administration's FISA falsehoods continue unabated]
[Read more letters about this article: Here]Distilled to its core, I think the chief aim of the administration is to outright remove the necessity of individualized suspicion from the wiretap process. They want to be able to use new technology to literally set up electronic dragnets, under broad categorical parameters (like all calls between the U.S. and certain foreign areas), and mine them for conversations including key words, phrases, and other communicative algorithms. Then, with this "narrowed" set of telephone conversations, they may apply stricter filtering parameters, or listen to them individually.
The essential problem the administration has, however, is that FISA's prohibition against activity of this sort really takes root in he Fourth Amendment itself. FISA was designed with the Fourth Amendment in mind, requiring some degree of reasonable, individualized suspicion before a conversation can be eavesdropped upon in the first place. To remove this requirement by FISA, as the surveillance pertains to US persons, and allow blanket, categorical eavesdropping, would inevitably violate the Fourth Amendment and its historical reaction to and prohibition against the infamous General Warrants once issued by the Crown, in which the authorities were authorized to search entire neighborhoods and areas without any individual suspicion of wrongdoing.
So all this nibbling around the edges of FISA is really just a distraction from what the administration would really like to do (or likely is already doing, illegally): categorically intercept, process, and listen in on any conversations occurring between this country and designated foreign areas/individuals. More ominous, however, the non-denials of Mr. Gonzales and others might even suggest that the dragnet could extend to conversations entirely within this country, on the basis of some sort of other filtering criteria.
-
Retaliation
[Read the article: The administration's FISA falsehoods continue unabated]
[Read more letters about this article: Here]I want to mention another possibility that may have been overlooked, and I apologize if I myself have overlooked someone's mentioning it.
I find it hard to believe that Comey, Mueller, and Ashcroft finally decided not to resign, and kept quiet about the whole affair, solely because of a change to the wiretapping program. Considering their initial level of outrage, and the severity of their threatened group-resignation, I would be shocked if the supposed reformation of the program -- a woefully inadequate reformation at that -- was the only reason they changed their minds.
For this reason, Congress must also demand to know if these men were threatened with retaliation (political, professional, or other) if they resigned. This, to my mind, would constitute at least as severe a crime against the nation as the underlying warrantless wiretapping program and the thuggish hospital visit by Gonzales and Card. This possibility must be explored to the fullest possible extent, particularly in light of the immense political implications attending the then-looming 2004 presidential elections.
-
Barnaby
[Read the article: The administration's FISA falsehoods continue unabated]
[Read more letters about this article: Here]The math is quite solid on using this type of "transparent" or "meta" dragnet to sift thru millions of pieces of information to find those nuggets worthy of further study. The problem is twofold, from a legal perspective:
1. No court that I know of has reviewed or approved these methods, relative to US Citizens, with respect to Constitutionality.
2. Without legal sanction/review/supervision, isn't any information (i.e. arrests) produced by such a dragnet "fruit of the poison tree" and, therefore illegal?
This all needs to be hashed out and deliberated upon. Not necessarily publicly.
I may be misconstruing that last statement, but I believe these matters do need to be hashed out and deliberated upon in public. FISA was, of course, a public law, passed by Congress in the thick of the Cold War, setting forth precisely how the government could obtain court orders (albeit through a secret court) to wiretap foreign targets within the United States, and this did not emasculate our ability to gather intelligence or protect the country. The nature of a democratic republic -- indeed, of our having individual rights -- is that the government comes clean about what it is doing or wants to do to its citizens, and permits the full sunlight of public disclosure to shine upon its legislative deliberations.
Barring specific technical/proprietary/logistical information, there is nothing in such a deliberation that would harm our national security if conducted in public. The two points you raise are good ones, and merit a full, open airing. We need to address the question of what information (metadata or otherwise) attendant to a phone conversation, email, or other transmission constitutes the protected "content" of that communication, and is thereby protected by constitutional, judicial, and administrative checks. The answers we come up with as a republic must take the form of public legislation. The Executive Branch cannot arrogate to itself, in secrecy, the power to determine what aspects of our lives it may or may not infiltrate, or which laws it may or may not adhere to.
That said, I hope I misunderstood your point.