Monday, December 26, 2005

Orwellian Internet spying

Some good blog posts on this subject: Bruce Schneier (security expert and author of Applied Cryptography) and some legal analysis by Dan Solove. Quick summary: probably in violation of existing FISA laws, probably not explicitly unconstitutional under the 4th Amendment, but Bush's justification under Article 2 is weak, bordering on "frivolous" according to one legal scholar.

John Yoo's memo (the wishful thinking of a thirty-something junior DOJ official, who nevertheless was the strongest intellectual voice on this subject in the administration?!#?) comes close to asserting that there are no limits on Presidential power in the unending "war" on terror. How will we decide when this "war" is over? Was there ever even a declaration of war? Several scholars assert that the 9/14/01 Congressional authorization for use of force falls far, far short of a declaration of war. It is miles away from the declarations of war in WWI and WWII (and the threat is much less serious, as I pointed out in the previous post). If one defines a dictator as a ruler who is beyond the law, then Yoo's memo seeks to justify dictatorial power for Bush-Cheney.

Nineteen Eighty-Four

“Remember our boys on the Malabar front! And the sailors in the Floating Fortresses! Just think what they have to put up with.”

“The rocket bombs which fell daily on London were probably fired by the government of Oceania itself, 'just to keep the people frightened'.”

“To tell deliberate lies while genuinely believing in them, to forget any fact that has become inconvenient, and then when it becomes necessary again, to draw it back from oblivion for just so long as it is needed.”





Anonymous said...

not much of a surprise if you've always been a member of the paranoid sorority/fraternity ; c'mon, think watergate and Linda Trapp's "cooperation" with the wiretapping fbi re Monica Lewinsky - though you might have expected more from a prez with his eye on history - fancy a reputation as a prez who institutionalized "eavesdropping" - a "voyeuristic" gene perhaps?

Anonymous said...

The New York Times:
"...the only thing outrageous about this policy is the outrage itself."

Steve Hsu said...

The Times op-ed (by two frmr republican WH lawyers) again misrepresents the 2002 FISA court ruling.

Bush's actions are in direct conflict with existing FISA law. That leaves only the flimsy 2nd Amendment rationale -- you know, we're in a bad, scary infinite war, so the President is unconstrained by law. In particular, the two wingnuts who wrote the editorial feel that a grandmother in Chicago sending an email to her nephew in Paris should have no more expectation of privacy than a tank commander on the battlefield (because it's a WAR! on terror we're in). Where do they get this stuff?

Anonymous said...

The more I read about this, the better Bush looks, and the more the Times looks to have slid into deranged Bush-hatred and away from concern for the safety of Americans from terrorist attack.

I get reinforced in these views reading:

I think it would be a good thing to pass legislation specifically authorizing it, though.

Anonymous said...

steve wrote, ...but Bush's justification under the 2nd Amendment is weak...

Pedantic point: You mean Article 2, not Amendment 2, right?

Anonymous said...

anonymous wrote, deranged Bush-hatred and away from concern for the safety of Americans from terrorist attack. I get reinforced in these views reading:

Except (a) there's a cost to the policies (potential abuse of executive power---how do you know that the NSA won't spy on Americans with no connection to Al Qaeda?; after all other federal agencies spy on peaceful antiwar protestors), (b) there's no evidence they make us much safer.

You could use the same claims to argue for turning the US into a totalitarian state.

And the author of that blog, Tom Maguire, is a right-wing hack.

Steve Hsu said...

Oops, thanks for catching that I typed 2nd Amendment when I meant Article 2!

BTW, I'm a pragmatist on these issues - in dire enough circumstances any liberty might be suspended. But, I do think the legal process has to be followed - the President should never do so unilaterally nor secretly.

Anonymous said...

steve wrote, I'm a pragmatist on these issues - in dire enough circumstances any liberty might be suspended.

Of course, one must always look at the tradeoffs.

As for how dire the circumstances are, I think two points bear repeating:

* Paul Krugman's point that if you look at the actual economic and human costs of 9-11, they were quite small. (To which one would add current estimates of the magnitude of potential Al Qaeda-inflicted damage.)

* Mark Kleiman's answer to the "the Constitution is not a suicide pack" argument: while Lincoln did indeed suspend habeus corpus, in that case the constitutional order itself really was threatened. Not nearly the case here.

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