Wednesday, December 21, 2005

We're all ears

I've been following the slowly expanding brew ha ha around the subject of the NSA's domestic spying, the President's defense of it, who was getting spied on when, the apologists' explanations for why we have to do it this way and so on and so forth.

The whole thing reeks of expediency and looks like a teenage boy caught in the bathroom with a copy of Playboy.

The Fourth Amendment says that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Now, I'm just a simple computer geek who has a tendency to see things in black and white, but those words seem pretty straightforward to me. People have the right to be secure their private lives, and the federal government can't breach that without going through a delineated process to obtain permission.

OK, so these searches were warrantless. Everyone seems to acknowledge that. Some of the apologists point out that we're in a time of war, and during wars our civil rights are often curtailed.

True enough, and our history is full of examples. However, let me point out the fly in the ointment: This is not a declared war. Sure, we call it the "War on Terror", but technically, it isn't. Congress is the government entity with the power to declare war, and they've done no such thing. So while our troops on the ground are following the rules of war, and I expect is all sounds, smells and feels like a war to them, it isn't legally a war. So trying to use that historical precedent to justify these actions is a bogus argument.

OK, that doesn't hold water, let's try something else. Some legal authorities claim that the President has an independent authority to authorize this sort of surveillance. (FOXNews has a pretty good piece on that aspect of things.) Just yesterday, White House spokesman Scott McClellan stated yesterday "Under Article 2 of the Constitution, as commander in chief, the president has that authority."

In what universe, Scotty? I just reread Article 2, and I don't see anything that I can interpret as allowing the President this authority. As I understand it, the case for this authority is made around this language:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--" I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Could someone please enlighten me on how violating the Fourth Amendment preserves, protects or defends the document it's a part of?

McClellen also makes the point that:

"It is limited to people who have--one of the parties to the communication [who has] a clear connection to Al Qaeda or terrorist organizations and one of the parties [who] is operating outside of the United States. And I think that's important for people to know, because there's been some suggestions that it's spying inside the U.S. That's not the case."

Maybe, maybe not. The New York Times is reporting:

The officials say the National Security Agency's interception of a small number of communications between people within the United States was apparently accidental, and was caused by technical glitches at the National Security Agency in determining whether a communication was in fact "international."

(Link from Drudge; you may need BugMeNot to read it.)

Working in technology, I know that no system is perfect, and I can see just how some calls that don't fit the defined criteria could slip into the net. But it just creeps me out that one of my phone calls, or one of your phone calls, could have been monitored by the NSA--even accidentally.

The least effective argument trotted out is by Alberto Gonzales.

Gonzales told reporters that the Supreme Court decision on Hamdi reinforced the claim that the president was given wide permission in the Sept. 14, 2001, vote by Congress authorizing the president to "use all necessary and appropriate force" against those behind the Sept. 11 attacks.

Gonzales said the congressional authorization did not specifically mention the word "detention," but in the Hamdi case, Justice Sandra Day O'Connor wrote in the majority opinion "that detention of enemy soldiers captured on the battlefield ... had been authorized by the Congress when they used the words, 'authorize the president to use all necessary and appropriate force.'"

"We believe the court would apply the same reasoning to recognize the authorization by Congress to engage in this kind of electronic surveillance," Gonzales said.

"We believe"? I'll tell you what--you trot that thing into court and let's see what the courts say. If they bless that stretch of logic, then I'll grant it--but not before. Ol' simple black-and-white me, I'm not buying it.

In short, this whole thing fails to pass the world famous "sniff test".

The really frustrating part is that there was already a process in place where the government could have gotten the necessary warrants in secret. The Foreign Intelligence Surveillance Court was set up in 1978 just for this sort of thing.

However, even this secretive court requires the government to do its homework before applying, and I think that's part of the problem--the dark and creepy part of our government wanted to watch certain people or groups based on their suspicions, which may not have been supported by the evidence at hand.

Travel down that road too far, and you find yourself in the land of the police state. By all reports, East Germany was an unpleasant place, and I don't want to see us take any risk of becoming even a little like them.

I don't want to see our country give up the freedoms that make us the most special country in history in order to "save us". Ben Franklin warned:

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.

My suspicion is that if we give them up, the terrorists won't stand a chance. Our own government will see to it we have neither Liberty nor Safety.

Edit: Jennifer Granick thinks the President has broken the law.

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