Lederman on Warrantless Wiretapping

[Rosenthal, Lawrence]

I have read the excellent letter on the NSA wiretapping program coauthored by Marty Lederman in response to he DOJ whitepaper defending the program.  Despite the merit of the legal analysis, as an "outside the Beltway" type, I can't help but believe that the opponents of the program make a serious mistake by focusing on the question of the President's authority to undertake the program.  This objection permits the President to frame the debate in terms of his desire to do everything necessary to protect the nation against another attack, regardless of legal technicalities.   That debate is clear winner for the President.  My own view is that the opponents of the program would be far more effective by focusing on its operational details.  It seems clear that the program selects subjects for wiretapping based on a standard far lower than probable cause.  From my own time in government service, during which I saw some counterterrorist intelligence, I would imagine that the NSA frequently relies on what amounts to highly unrealiable gossip, and that the program has a high error rate.  But because there is no independent oversight of the program, however, we cannot know how poorly it functions, and how frequently it targets innocent people.  Focusing the debate in terms of the likelihood of abuse in a program that utilizes a low threshold to initiate wiretaps and which lacks any independent oversight is an argument with far more potency in the political arena.  Protecting the innocent is always a bettter political aregument than protecting the guilty.
 
Larry Rosenthal
Associate Professor of Law
Chapman University School of Law
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