My Lunch Crew reacts to the NSA wiretapping story

Based upon some informed speculations on what the NSA may be doing, we had a lively discussion at lunch over the propriety of domestic wiretapping without warrants. Marty contributed the following in an email afterward. I quote it here in its entirety, along with some editorial comments.

Well meaning people do not engage in secret, covert conduct when they believe their actions to be legal. [even spy agencies like the CIA, NSA, FBI?]

I believe that, under the law, wiretapping is intended as a tool to confirm and substantiate suspicions generated through other means. Wire taps are not, in and of themselves, intended as a means to generate suspicions or as a means to engage in evidentiary "fishing expeditions" where no other reasonable suspicion exists before hand. Therefore, its one thing to wiretap people in an emergency situation before going to a court, if at the time of the wiretapping there existed both a reasonable suspicion and a reasonable urgency, and that it can be subsequently demonstrated to a court that both reasonable suspicion and reasonable urgency existed at that time. Its quite another to engage in blanket wiretapping without prior court approval against large numbers of people when there exists no reasonable suspicion against any (or many) of them at the time the wiretapping is performed. [Well said. Is the context for these rules only domestic non-combatants or foreign terrorist overseas too? What about domestic persons knowingly cooperating with terrorists in a legal way?]

Should we really give that much weight to the legal opinions of lawyers who work for the Justice Department, or anywhere else within the executive branch, on matters dealing with the power of the executive? These are hardly unbiased opinions, whether prepared for Mr. Bush or one of his predecessors. After all, when is the last time a President solicited the opinion of congressional lawyers on matters relating to the power of the executive branch? When such opinions are tested before a court, and upheld by a court, then the opinion should be given its due weight. Not before. [Again, well argued and I agree.]

I also suspect that most of these 'opinions' written by lawyers in the executive branch, when drafted at the behest of a President, tend to be disingenuous, written not as a genuine expression of legal merit, but with the intent that they could later be used as tools to cover the President's ass. [Concur.]

Congress does not have the power to pass a law that allows the President to violate the 4th amendment rights of US Citizens. Congress derives its authority solely from the constitution, and such a law would be unconstitutional. Any part of a law that conflicts directly with the constitution is unconstitutional, and when Congress passes a law that contains elastic language such as "all necessary and appropriate force", the effect of the law is a) unconstitutional to the extent that its provisions would otherwise allow for the violation of the constitution and b) necessarily limited by the framework of the constitution. There are many examples of the courts striking down laws duly passed by Congress and signed by the president as unconstitutional. The notion then that any Congressional Authorization for the Use of Military Force allows the President to violate the 4th amendment rights of the US Citizenry is unfounded. [This is true as far as it goes. I would point out however, that the constitution is not limited to the 4th amendment.]

Any argument that using satellites to do the wiretapping without a warrant is legal under the 4th amendment is absurd - someone used the satellite after all. That's akin to arguing that the murder victim was slain by the bullet, or the gun that fired the bullet, and not by the man that pulled the trigger.

Commentary: First off, I'd like to make clear that it is in all of our interests to adhere to and respect our Constitution. We are a nation of laws, not men. The points raised above and in our discussion showed an understanding and passion for our ideals of personal freedom as protected by our laws.

It is my contention (and obviously that of the administration) that the NSA wiretapping actions are legal and proper. By this I mean to argue both the narrow case of legal by present rules and precedent, and the broad case of proper by the spirit of the constitution.

The constitution has remarkably little to say about Presidential powers. It is more explicit in defining the legislative branch powers. Congress has the power to define rules that the Executive must adhere to; even beyond what is written in the constitution. I would call out the explicit power granted to suspend habeas corpus "when in cases of rebellion or invasion the public safety may require it." The 3rd amendment, rarely noted in modern times provides that "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law." Clearly, the framers understood that one set of rules applied to civilized law and another to the conduct of war.

The 4th amendent provides explicit protections against "unreasonable searches":

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Through legislative rules and judicial case decisions we have properly come to define a framework for reasonable searches. That is to say that the constitution authorizes searches -- the details of which are defined by congress and judicial interpretation. It is a defensible argument that a new concept in searches (computerized data mining through the indexing of telephone connections) could be ruled a "reasonable search" given the probable cause provided by the existence of terrorist organizations. This would have to be legislated by Congress or be interpreted to exist within current legislation and stand up to potential post-facto court challenges.

Lastly, I would point out that I have blogged about the direct precedents for this type of wiretapping. The current understand of what is allowed has stood firm for 30 years. I don't believe this issue is settled sufficiently. I hope that through discussion we can provide a framework that convinces the majority of Americans that their freedoms and their security are protected.