Constitutional, Maybe; Wise? Almost Certainly Not

In the post below, I suggested that the NSA spying on some Americans seems to fall into a constitutional grey area. But that doesn't mean it's wise program. Laura Rozen flags one critical issue, namely might the spying end up screwing some cases:

Let's say in this NSA US Person information vacuum the authorities found someone they are really worried about. Let's say just once, they get evidence of a crime or terrorist conspiracy. How is this stuff going to be used in court? Unlike FISA warrant surveillance, which I assume is legally admissible evidence, just how has the White House prosecuted or do they plan to prosecute someone who they get evidence of obtained from inadmissible, extra legal NSA surveillance - in a way that they can't admit in court? They can't.

Of course, if I'm right in my post below--that the spying might not be unconstitutional--the White House will fight to make it all admissible. But it'll be a fight--and for what exactly?

Comments

[guest]

Rozen's argument posits a contestable telos. Perhaps some intelligence gathering isn't targeted toward indictment and conviction in a US court. Those convictions aren't the be-all and end-all of protecting US citizens.

I'm also skeptical of the reaction to the "domestic spying." It's not cleary forbidden and our own self-interest has led us to cheerfully embrace a world of vastly diminished privacy. Why exactly should I be outraged that NSA listened in on such a paltry number of conversations when there is so much at stake?

[Mark S.]

I don't think this is about successful prosecutions. I think it's about concentrating power in the executive. The secrecy, the spying, and the attempts to block legal, civil, and human rights are best explained by the simple will to power of what Larry Wilkerson has rightly labeled a cabal within the administration.

I can only hope we have a Democratic Congress come 2006, and them O! the investigations we'll have...

[guest]

Are you saying that blocking concentration of power in the executive should be our goal, or that there is some *reason* to block that?

As far as we now know, the "spying" concerned a limited number of intercepts, which either came from or were directed to foreign sources, and the Congress and the courts were alerted to it. Exactly why should I be outraged? Why should I be salivating at the prospects of Democrats holding investigations?

[Gandalin]

Quest, you have hit the nail on the head. Unlike his detractors, President Bush understands that Al-Qaeda has engaged us in a war. When an enemy declares and makes war on you, if you have any sense at all, you don't carefully plan to obtain evidence that you will submit in court; you go to war against them. The information from these wiretaps was never intended to be used in a court proceeding, but to direct covert operations against terrorists who are plotting the murders of many more innocent Americans.

And despite the fact that the Democrats currently seem to believe in nothing at all except their own "will to power," even though the 2006 elections are a long way off, the tide is clearly in the Administration's favor, militarily, economically, and politically.

[Mark S.]

The Bush administration attacked Iraq *instead* of al Quaeda. That's "getting it"? My view is that the war on terror is a pretext for concentration of power in the executive, something everyone who values our constitution should be concerned about.

[guest]

Mark S,

Again, *why* is that the problem that defines the issue? Since FDR, the left and the right have contributed to vastly increased presidential powers. In Democratic and Republican administrations we've added to that power. Tell me specifically what the problem is.

I am a registered Democrat who voted against Bush. But when I heard that the NSA had intercepted foreign-domestic communications in a small number of instances, with the president iforming the court and Congress, I was glad to hear it. Should I freak out about that? What am I missing?

Are you saying we'd be better off if Congress was asked to handle that task? If so, why?

[Mark S.]

quest: "Again, *why* is that the problem that defines the issue?"

Because if the issue is judgment (the president's) and trust (mine) I need go no further than the biggest foreign policy blunder in my lifetime.

quest: "Since FDR, the left and the right have contributed to vastly increased presidential powers. In Democratic and Republican administrations we've added to that power. Tell me specifically what the problem is."

Consolidation of power -- Republicans contol all three branches of government -- and an administration that doesn't govern, rather gives power and favors to it's "friends" (lobbyists, Halliburton, oil companies, etc.).

quest: "I am a registered Democrat who voted against Bush. But when I heard that the NSA had intercepted foreign-domestic communications in a small number of instances, with the president iforming the court and Congress, I was glad to hear it. Should I freak out about that? What am I missing?"

My understanding is that the presidential directive circumvented the courts and Congress.

quest: "Are you saying we'd be better off if Congress was asked to handle that task? If so, why?"

Of course not! We need an executive. But we haven't shored up our ports, we're spending billions in the wrong country, we're seeing tax cuts used cynically to roll back New Deal entitlements, and we have a presidnet who doesn't share information unless he's over a barrel, and even then he just speaks in talking points.

[guest]

Mark S,

I appreciate your honest responses and I don't want to belabor this. I'm hearing a lot of "sky is falling" about this "spying" issue. I am glad that the NSA has been intercepting domestic-foreign communications and I hope they keep doing it. According to the second round of analyses, there is no clear prohibition againt that in the US statutory law or in the US Constitution. It's exactly in those gaps that the Executive, no less than the courts, must interpret the Constitution in the discharge of his duties. These limited intercepts were a terrific idea.

[Rachel]

The main reason for these exposes seem so disingenous, it won't be just the Pres. who goes down. (Assuming the general public cares). The two judges, those in the subcommitte and even the Dems can lose. Esp. the Dems, because they risk being seen as taking advantage of a situation as a cheap attempt at political stability, rather than "the truth" or "justice" Remember Lewinsky-gate? How many Republicans (do you think) really wanted Clinton out because he was a skirt chaser?

[Gandalin]

I wish I was a gambling man, I could take a few of you folks for big money.

This little tempest in a teapot is going to bring nobody down except those Democrats, who as Harry Reid admitted today, knew about the wiretaps for months and months, but said nothing about it and did nothing about it, because they were duly informed about it, and because they knew it was legal all along, but who nevertheless decided to try to make political hay about it and sabotage American security now.

The Democrats are devoting every ounce of their ingenuity and every dollar they have to running against George W Bush. But guess what, I happen to think that he won't be running for President in 2008.

With the economy positively roaring and with 4 - 5 million Afghan and Iraqi refugees back home and consolidating democracy in their countries, big heapings of anti-Americanism are not going to win back the Congress for the Democratic Party.

[Mark S.]

Gandalin: "With the economy positively roaring and with 4 - 5 million Afghan and Iraqi refugees back home and consolidating democracy in their countries, big heapings of anti-Americanism are not going to win back the Congress for the Democratic Party."

The roar you hear is deficit spending. And enough with the anti-American invective. We're all on the same team, like it or not.

[Gandalin]

Gee, Mark. Was it Herbert Hoover who thought that deficit spending was a good thing for the economy? Maybe it was Franklin Roosevelt. Whatever.

But I do agree with you. I wish today's Democrats would cease their anti-American invective, and the sooner they do, the better their electoral prospects will be.

[Mark S.]

Gandalin (dear Gandalin), the citizens of our country, Reps, Dems, and every other persuasion, all love the country. We all want to be safe. We just disagree on how to go about it. Is that so hard to understand?

[Gandalin]

Dear Mark S,

I am happy to acknowledge that you and most of the "militants de base" of the Democratic Party are indeed people who love this country dearly.

However, I am not at all sure about Ted Kennedy, Nancy Pelosi, Howard Dean, and others of their ilk, who have become besotted with the chic anti-Americanism of the Europhile glitterati.

And I am certain that Ramsey Clark, International ANSWER, and other stalinists like them --who provide much of the leadership for the anti-war, anti-Bush movement -- are in fact die-hard enemies of America. They do wish for "1,000 Mogadishus," they do believe that the innocent victims of the 9/11 atrocities were "little Eichmanns," and they do seek to undermine and ultimately destroy American influence, power, and liberty.

But your mileage may vary.

[anon21]

Who was it wo said 'Its is our fate [as Americans] not to have ideologies, but to be one.'?

Whenever I hear the phrase anti-american I can't help but think of that quote. America is a democratic country. That means debate. If you accept the need for debate, you accept the possibility of change. If you accept the possibility of change, you accept there may be something wrong with the current system.

QED proposing changes, up to and including something as drastic as a total pull out form iraq, is not anti-american. Making any kind of attempt to stifle or restrict debate, however, is decidedly anti-american.

The Country isn't perfect, never will be, thats why we have a democracy.

[Gandalin]

Anon21,

Is there then no opinion you would ever admit was "anti-American"? To advocate surrender is not "anti-American"? To support terrorists who murder Americans is not "anti-American"? Was Julius Rosenbergh a patriotic American hero who just happened to believe in some changes? Clement Vallandingham? Benedict Arnold?