Reading Tim Lee on FISA, I had a historical revelation. We could have avoided the long national nightmare of Watergate if only the burglars had carried letters from President Nixon stating that John Dean had determined that they had a legal right to trespass.
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Constitutional Law
FISA Face-saving
Since the new FISA bill was announced last week, Democratic leaders have been desperately trying to spin the legislation as a hard-won compromise rather than a capitulation. Time has an article on the FISA bill that’s a classic of the genre:
A compromise deal to extend the federal government’s domestic spying powers, passed by the House on Friday and expected to sail through the Senate next week, has drawn attacks from both sides of the political spectrum. The right is unhappy at concessions made to protect civil liberties; the left is furious that the Democrats allowed the domestic spying powers to be extended in any form.
There’s just one problem with this framing of the issue: outside of the Democratic leadership and a few elite journalists, no one believes it. Conservatives sure don’t. If you look at what actual conservatives are writing about the deal, you’ll find most of them crowing in victory. National Review’s Ramesh Ponuru, for example, says “It sure looks like [House Democrats] got rolled.” National Review’s Andy McCarthy calls the deal “the best we could have hoped for under the circumstances.” Coverage of the announcement on Human Events quoted no outraged conservatives. Paul at Power Line calls it “a decent FISA deal that’s likely to pass.” John McCormack at the Weekly Standard gives a thumbs up, as does Michelle Malkin.
And then there are the Republicans in Congress. Virtually every Republican in the House voted for the bill (compared with fewer than half the Democrats), and Kit Bond said that “I think the White House got a better deal than they even had hoped to get.”
In short, I’m hard-pressed to find even one person on “the right” who is opposing the bill. Virtually every civil liberties advocate opposes the legislation; virtually every partisan for executive power is happy with it. That is not a compromise. The deal was an unqualified victory for the White House, and everyone except the Democratic leadership knows it.
The article also suggests that Pelosi capitulated because “Democrats still trail on national security, and that could hurt them in Congress.” It seems to me that this represents a fundamental misunderstanding of the politics of national security issues. Democrats are perceived as weak on national defense largely because they’ve failed to articulate a clear position on the issue and stick to it. This spring, they staked out the principled (and in my view, correct) position in favor of judicial oversight and against retroactive immunity and got some good press for it. Now, they’re backing off from that view. Were they wrong back in March, or are they unwilling to stand up for their convictions now? Either way, the performance doesn’t inspire confidence in their judgment.
The article rather badly mischaracterizes the immunity provisions of the legislation:
Under Administration proposals, the telecoms would have received full retroactive immunity from lawsuits brought by civil libertarians alleging they violated the Fourth Amendment by complying with Administration requests to conduct wiretaps following 9/11. In negotiations with Pelosi’s office, the telecoms offered a compromise: Let a judge decide if the letters they received from the Administration asking for their help show that the government was really after terrorist suspects and not innocent Americans.
If the legislation passes, the judge won’t decide if the administration was “really after terrorist suspects.” The judge will simply determined whether the telecom companies received a letter from the executive branch stating that the programs were legal. And we already know that the telecom companies received such a letter, because it says so in a report from the Senate Intelligence Committee. There is therefore absolutely no doubt that if the legislation passes, the lawsuits will be dismissed. The changes to the immunity provision were a face-saving exercise, not a substantive compromise.
Blind Faith and FISA
Over at Ars Technica, I cover Sen. Chris Dodd’s plans to filibuster the FISA bill that is now under consideration in the Senate. Given that the Senate already overrode Dodd’s filibuster and passed legislation that undermines civil liberties back in February, his effort this time is a long shot. But he’s giving it all he’s got. Dodd gave a really excellent speech on the Senate floor in opposition to the legislation. He makes a lot of great points, but this passage was my favorite:
This bill does not say, “Trust the American people; Trust the courts and judges and juries to come to just decisions.” Retroactive immunity sends a message that is crystal clear: “Trust me.”
And that message comes straight from the mouth of this President. “Trust me.”
What is the basis for that trust? Classified documents, we are told, that prove the case for retroactive immunity beyond a shadow of a doubt. But we’re not allowed to see them! I’ve served in this body for 27 years, and I’m not allowed to see them! Neither are a majority of my colleagues. We are all left in the dark. I cannot speak for my colleagues—but I would never take “trust me” for an answer, not even in the best of times. Not even from a President on Mount Rushmore.
I can’t put it better than this: “ ‘Trust me’ government is government that asks that we concentrate our hopes and dreams on one man; that we trust him to do what’s best for us. My view of government places trust not in one person or one party, but in those values that transcend persons and parties.”
Those words were not spoken by someone who took our nation’s security lightly, Mr. President. They were spoken by Ronald Reagan — in 1980. They are every bit as true today, even if times of threat and fear blur our concept of transcendent values. Even if those who would exploit those times urge us to save our skins at any cost.
We once had a Republican president who understood that blind faith in the president was unpatriotic. Not only do few Republicans understand that today, but it seems a lot of Democrats have forgotten it too.
Family Security Matters: REAL ID = National ID
A month ago, I wrote here and in a TechKnowledge article about the telling imagery that a company called L‑1 Identity Solutions had used in some promotional materials. The cover of their REAL ID brochure featured an attractive woman’s face with her driver license data superimposed over it, along with her name, address, height, eye color, place of birth, political affiliation, and her race. This is where the national ID system advanced by the REAL ID Act leads.
Here’s another example. A group called Family Security Matters has reprinted on its site a blog post supporting the $80 million in grant money that the Department of Homeland Security recently announced, seeking to prop up the REAL ID Act. (I’ve written about it here and here.)
What’s interesting is not that a small advocacy group should support REAL ID, but the image they chose to illustrate their thinking: a man holding his “National Identity Card,” his fingerprint and iris images printed on it, and presumably programmed into it.
Were there ever any doubt that REAL ID was a national identity system and a step toward cradle-to-grave, government-mandated biometric tracking, Family Security Matters has helped clear that up.
TSA Background Check Includes Political Party
We’re now learning the meaning of a new policy that Americans can’t “willfully” refuse to show ID at airports. The Consumerist has a write-up of one man’s experience with IDless travel. It turns out they do a background check on you using, among other things, your political affiliation.
That’s a nice window onto what identity-based security is all about: giving the government deep access into all of our personal lives. Of course, this type of security is easy to evade, and the 9/11 plot was structured to evade it. Checking ID cannot catch someone who has no history of wrongdoing.
Identity checks at airports require law-abiding American citizens to give up their privacy, including their political affiliations, with essentially no security benefit.
More Reaction to Boumediene Ruling
Jonathan Turley: What citizens need to understand is that it is meaningless how many rights are contained in a Constitution, if the government can deny you access to the courts to vindicate those rights.
Richard Epstein: Boumediene v. Bush is not a license to allow hardened terrorists to go free. It is a rejection of the alarmist view that our fragile geopolitical position requires abandoning our commitment to preventing Star Chamber proceedings that result in arbitrary incarceration.
Robyn Blumner: Upholding the Constitution doesn’t make us less safe, only more careful with the lives of other people. Affording timely due process to those we suspect is an honorable endeavor engendering goodwill and worldwide respect, and serving, ultimately, as great a protective shield against attack.
Steve Chapman: It’s also a small price to say that if the executive branch wants to capture someone, treat him as an enemy combatant and hold him for the rest of his life, it should have to justify that decision to someone other than itself. Critics of this decision are terrified that the courts will have the power to free innocent men. But really, the alternative is a lot scarier.
Glenn Greenwald: Our political and media elite were more than willing — they were eager — to relinquish that [habeas] right to the President in the name of keeping us Safe from Terrorists. Today, the U.S. Supreme Court, in what will be one of the most celebrated landmark rulings of this generation, re-instated that basic right, and in so doing, restored one of the most critical safeguards against the very tyranny this country was founded to prevent.
Harvey Silverglate: This past week, the Supreme Court rejected the Bush administration’s astonishing claim that it had the power to detain suspected “enemy combatants” at Guantánamo Bay — potentially for life — without fair proceedings or meaningful access to the federal courts. This moving reaffirmation of the so-called Great Writ of habeas corpus was probably the high court’s most important civil-liberties decision in my lifetime (and I was born in 1942).
Happy Kelo Day
As our friends at the Institute for Justice will tell you, today is the third anniversary of Kelo v. New London, the property rights case that made my colleague Bob Levy’s list of the “Dirty Dozen” worst cases in modern Supreme Court history. This was the case where the Fifth Amendment’s “public use” requirement was found to impose essentially no restriction on the government’s eminent domain power. In some senses this was a lost battle leading to great progress in the war to preserve property rights, with legislatures in numerous states enacting anti-Kelo legislation in the wake of concerted grassroots activism against the decision.
This morning the Supreme Court found a curious way of winking at Kelo Day. As I was scrolling down the orders list — a many-paged list of administrative actions, mostly cert denials — I happened upon the following notation:
07–1247 GOLDSTEIN, DANIEL, ET AL. V. PATAKI, FORMER GOV. OF NY
The petition for a writ of certiorari is denied. Justice Alito would grant the petition for a writ of certiorari.
Now, it’s exceedingly rare for individual justices to have the clerk record how they voted on a cert petition, but here Justice Alito did just that, and in a case that rang a bell in my mind I couldn’t place. Then I realized that Goldstein v. Pataki was the appeal by a group of home- and business-owners who are likely to lose their property to a development that is to provide a new home to the the New Jersey Nets plus 16 high-rise office and apartment towers and a hotel. Thus, not only is Justice Alito as friendly a vote on this issue as was his predecessor Justice O’Connor (who wrote an impassioned Kelo dissent) but he is apparently an emphatic one. See a bit more here. This is not necessarily a surprise — and it still leaves us one vote short — but, again, the notation on the order list is a neon light to Supreme Court watchers.