DeWine Amendment and NSA -- What Should be Done?

Sean Wilson whoooo26505 at
Wed Jan 25 10:51:58 PST 2006

Quite simply, they should behave rationally: enact a policy that is maximally tailored to prevent clandestine attacks from within while protecting the public from abuse by politicians and the police state. This is ultimately what the Courts will be trying to do: fit law rationally into the new world, not obey the past for the past's sake. In fact, my guess would be that if Congress has a better policy that does this, you would get a Steel-case opinion from the Court, but if it does not, you just may get an inherent authority (natural law) opinion.
  The whole idea of having the NSA encumbered by the ritual of the warrant is simply ridiculous. My god, in the last half of the 20th century, we've dismantled the warrant as a meaningful impediment to ordinary police practice (outside of searches in the home). It's been replaced with the logic of the circumstance -- a good excuse can dispose of it. 
  But even this is inappropriate for the NSA. The whole idea of warrants and post-hoc excuses is not the right regime to constitute in this area of law. The activity of finding clandestine terror networks no doubt requires one to snoop on a systematic basis without much pre-existing cause. You might need randomized checks, computerized fishing, simple hunches. Instead of using justificatory logic -- "what did you know before you looked" -- we need to use misbehavior logic: are you abusing this power?
  I think we should replace the ritual of the warrant with the idea of an audit. Instead of requiring the NSA to show cause or have approval, they should be required to log every use of this power and have it subject to judicial audit. Instead of the Court acting as a parent -- "I say you had enough basis" -- it should function as an accountant. Who did you spy on and why on such and such a date? If it appears after the fact that the object of the spying is ideological enemies and the retention of power (like Nixon), crimes and lawsuits of the most severe nature should be the consequence.
  Let us police the real problem: misbehavior. If Congress writes a better policy, it might just retain its appearance of supremacy in this area (by the Courts siding with it). Otherwise,  get ready for more Congressional failure.
  One last point: Democrats need to get this advice very badly. They must accept the new world and show they can do these things BETTER. Quite simply, Democrats (and many professors) need to transcend the political drama that shaped their social learning (Nixon, Watergate) and take the circumstances of the world as it now exists. Nixon and the 60s are long gone.  

Marty Lederman <marty.lederman at> wrote:
           Assuming, as I do, that the Administration's statutory argument will fall on deaf ears -- or receive an even more hostile reaction -- in Congress, WHAT SHOULD CONGRESS DO ABOUT IT?  

Dr. Sean Wilson, Esq.
Penn State University
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