presidents, war, and *statutes*

[marty.lederman at comcast.net]

"We don't use the same rules to police this as we do when we play cops and robbers."  That's right:  The rules we "use" here -- the rules "we" enacted into law, after extensive debate in the mid-'70s on these very questions, and again in 2001, in the PATRIOT Act -- are called "FISA."  And they're very deferential to the Executive.  But they make this particular type of conduct a felony.

Perhaps Professor Wilson thinks, along with Judge Posner in today's Post (http://www.washingtonpost.com/wp-dyn/content/article/2005/12/20/AR2005122001053.html), that this conduct is not so bad, because the Government is not spying on us for criminal law enforcement purposes, but is instead "only" "looking for people working as operatives from foreign governments trying to wage a clandestine war against an enemy political regime."  

Dan Solove explains why the "Orwellian" risks are quite a bit more serious:  http://www.concurringopinions.com/archives/2005/12/judge_posners_t.html.  But hey, as Posner suggests, it's well worth debating the very serious and momentous question of whether FISA ought to be amended to allow this sort of widepsread data-mining of U.S. persons (and whether the Fourth Amendment would permit it).

What I would hope everyone would view as unacceptable, however, is the notion that the President can unilaterally (and secretly) circumvent an existing statutory regime in which such conduct is currently unlawful (criminal, actually).  I have more on this here, in reaction to Judge Posner's Op-Ed:

http://balkin.blogspot.com/2005/12/judge-posner-and-ad-hoc-initiatives-ie.html   

P.S.  Why is it "harder to go to Congress in this instance"?  The President went to Congress in 2001, sought amendments to FISA in order help fight terrorism, and Congress gave him what he wanted.  He didn't ask for this amendment because he knew that he wouldn't get it:  http://balkin.blogspot.com/2005/12/definition-of-audacity.html.  So, instead of asking for a statutory amendment, he simply decided to take the law into his own hands.
-------------- Original message -------------- 
From: Sean Wilson <whoooo26505 at yahoo.com> 

Yes, but Lincoln was doing something far more serious -- implementing martial law -- and was fighting a war with an enemy who had a flag and was claiming sovereignty over American lands.  Bush, on the other hand, is fighting a clandestine operation that works like a CIA or mafia and is using much less invasive methods (privacy violations). It's harder to go to Congress in this instance because the cell-phone culture is busy going to the shopping malls and doesn't know enough about the operation of  insurgency groups in the country. 

One of the things that is unfortunate about this debate is that no one takes into consideration the consequences of "being violated."  What happens if the government mistakenly spies on you? Nothing, I presume. They aren't blacklisting you in hollywood, firing you from being a public school teacher or making you take a loyalty oath. If this were criminal law enforcement and the police could spy on you, anything they found could be used against you for crimes that they otherwise had no idea were occurring. Here, that isn't the case. They are not forwarding this information to general law enforcement if they accidentally find something, are they? It is a completely different bureaucratic organization. So I ask: what is the cost of being violated? Is it purely phenomenol? It doesn't feel good? How do you balance that against the benefits of catching someone? Look, I don't know any other way to play defense. What do you want them to do: let the police try and catch these people !
 when they are actually engaged in the act of terrorism, like in the movies? 

Usually, when government spies on you, it is because they want to POLICE you (change your "bad" conduct). That's the Orwellian idea. Here, it more seems like a doctor looking for a virus. They are not trying to change societal behavior; they are looking for people working as operatives from foreign governments trying to wage a clandestine war against an enemy political regime. We don't use the same rules to police this as we do when we play cops and robbers.

.
marty.lederman at comcast.net wrote:
I know I'm beating a dead horse here, but I don't want to lose sight of the most important distinction between Bush and Lincoln:  Lincoln was acting (in April-July 1861) in a manner that he claimed was consistent with what the (absent) legislature would do when it returned:  "These measures, whether strictly legal or not, were ventured upon, under what appeared to be a popular demand, and a public necessity; trusting, then as now, that Congress would readily ratify them."  More importantly, Lincoln agreed to abide by Congress's ultimate judgment:  "Whether there shall be any legislation upon the subject, and if any, what, is submitted entirely to the better judgment of Congress."



Dr. Sean Wilson, Esq.
Penn State University
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