It is, of course, not surprising to see the bullshit-libertarian blogosphere taking a dive for Bush’s illegal searches (although some principled conservatives and actual libertarians are clear about what’s going on.) The ultimate example has to be Jeff Goldstein, who argues that the warrantless searches must not have violated the law because…Condi Rice and George Bush said so. Well, I’m convinced! (This is a unique theory of legal interpretation: if Republican political officials say that their actions are constitutional, the inquiry is over.) Particularly remarkable is his outrage over the fact that the President’s warrantless searches continue to be criticized “even as the President stands firm and defends the practice.” Yes, what is this country coming to where people will disagree with the President even when he asserts that he’s right? You’d think we lived in a liberal democracy or something. (The word “lickspittle” seems grossly inadequate.) But, anyway, the fact that alleged libertarians who are enthusiastic supporters of Sam Alito despite their (less than nominal) support of abortion rights and civil liberties are rolling over again isn’t exactly news, but a couple points should be emphasized.
The first is that the legal question here is unambiguous. Several conservative hacks have tried to use a distortion of FISA to argue otherwise, but the statute clearly forbids what Bush has openly admitted to having done. And then, of course, there’s the Fourth Amendment, which is also clearly violated by these warrantless searches. King of the fake libertarians Glenn Reynolds tries to dance around the latter question, with distinctly unpersuasive results:
The wiretapping is not so clear: Most people fail to appreciate how limited their protection against government surveillance is, both under statutes and under constitutional law. And that’s doubly so where international communications are concerned. (And, except for the small possibility of a constitutional-tort action, the main remedy for unconstitutional surveillance can be found in the exclusionary rule, which only comes into play if someone is prosecuted and the government tries to introduce the surveillance into evidence — meaning that, as with the exclusionary rule in general, the remedy is worthless if you’re never charged with anything, say because you’re innocent.)
Indeed, our Fourth Amendment protections are less than they should be (partly because people like the Reynolds-approved Alito keep getting appointed to the federal courts by the Republican Presidents and Senators he supports), but they certainly aren’t so limited as to permit a systematic policy of warrantless searches ordered by the executive, and Reynolds carefully avoids saying that they are. Instead, he goes into a whole bunch of diversionary rambling about the exclusionary rule, all of which is beside the point. Again, yes, as everyone knows one problem with the exclusionary rule is that it provides a much more effective remedy to the guilty than to the innocent, and most people won’t bother to file a civil claim when their Fourth Amendment rights are violated. But the question of whether there is an effective remedy is separate from the question of whether there was a constitutional violation. The violation doesn’t suddenly vanish just because the innocent people whose rights were violated (most of whom, in this case, would seem to have no way of knowing that their rights were violated) don’t sue. So Reynolds’ only specific argument here is a non-sequitur. And unless one endorses John Yoo’s Schmittian tautologies, there’s simply no question that this policy violated the Fourth Amendment as well as FISA. And this is why, rather than explaining how , specifically, these warrantless searches could be constitutional in the face of the clear commands of the Fourth Amendment, Goldstein just babbles about his well-worn “Chimpy McHaliburton” strawman rather than making an argument.
The second point that’s worth making here is that there is also no remotely credible national security justification for these plainly illegal searches. Is there reason to believe that the communications of terrorists couldn’t be effectively monitored via the existing legal framework? Of course not. It’s worth highlighting this passage from the original NYT article:
The standard of proof required to obtain a warrant from the Foreign Intelligence Surveillance Court is generally considered lower than that required for a criminal warrant; intelligence officials only have to show probable cause that someone may be “an agent of a foreign power,” which includes international terrorist groups, and the secret court has turned down only a small number of requests over the years. In 2004, according to the Justice Department, 1,754 warrants were approved. And the Foreign Intelligence Surveillance Court can grant emergency approval for wiretaps within hours, officials say. Administration officials counter that they sometimes need to move more urgently, the officials said. Those involved in the program also said that the N.S.A.’s eavesdroppers might need to start monitoring large batches of numbers all at once, and that it would be impractical to seek permission from the Foreign Intelligence Surveillance Court first, according to the officials.
As Josh Marshall points out, “in a quarter century, the FISA Court has rejected four government applications for warrants.” And, moreover, the government is permitted to seek retrospective warrants in emergencies. It’s obvious that if there is any reason to believe that terrorist communications (as opposed to, say, domestic political opponents) are being monitored obtaining a warrant is about as hard as finding wineries in the Napa Valley. Other than to simply assert his arbitrary wartime power, there’s no good reason for this illegal policy.
And this is what’s so chilling about Bush’s defenders, which is a common feature of wartime violations of civil liberties: their fundamentally authoritarian mindset. Essentially, defending this policy depends on the assumption of a zero-sum game between civil liberties and national security. Defenders of the policy simply assume, without any independent logic, that because this policy violated civil liberties it must, somehow, contribute to protecting national security. But there’s simply no reason to believe that it does. Even if you believe that formally illegal measures may be defensible in emergency situations, the national security justifications in this case don’t come remotely close to meeting the necessary burden. This policy is simply transparent illegality in the service of nothing but the power aggrandizement of the Bush Administration.