The Finch Formerly Known As Gold

31 December 2005

Both ends against the rest of us

Let's see if I understand this:

The ACLU is asking the Attorney General for the appointment of a special prosecutor to investigate whether President Bush violated the Foreign Intelligence Surveillance Act.

Okay, fine. Now is this the same ACLU which filed an amicus brief in 2002 claiming that FISA was itself unconstitutional?

Um, can we have a little consistency here, guys? I mean, besides the "Bush Is Always Wrong" meme.

(Found at Strata-Sphere through Stop the ACLU.)

Posted at 10:00 AM to Political Science Fiction

TrackBack: 10:38 AM, 31 December 2005
» "Stop the ACLU" lying again from Life and Deatherage
Over at Charles's place, he asks: Let's see if I understand this: The ACLU is asking the Attorney General for the appointment of a special prosecutor to investigate whether President Bush violated the Foreign Intelligence Surveillance Act....[read more]

(I actually had this completely written before I realized that your comment software would un-format the list, so I posted it on my own place here. Here's all the text that the blog didn't eat the formatting upon.)

You don't understand this, but that's OK, because the people you link to are deliberately trying to mislead you - not unusual for "Stop the ACLU," a group dedicated to using its First Amendment rights to take away everyone else's.

Read the brief. It becomes clear after just a moment's scanning that it (and the ACLU, which filed it) does not argue that FISA is unconstitutional. FISA lays out procedures for obtaining surveillance of foreign targets for intelligence purposes. (That's why it's the Foreign Intelligence Surveillance Act.)

In 2002, the Bush Administration started trying to use FISA orders, obtained without "normal" judicial oversight (no right to challenge, no public disclosure, very low standard of evidence), in domestic criminal prosecutions. Note the distinct opposition between domestic and foreign, and between intelligence and criminal.

I mean, geez, just read the table of contents here.

It really couldn't be any clearer about arguing that FISA is unconstitutional if used to collect evidence in criminal cases. Then again, "Stop the ACLU" has a vested and big-monied interest in preventing you from understanding the ACLU's clear intent. Sorry they got you.

Posted by: Matt at 10:39 AM on 31 December 2005

I am so sick of BDS. I know there was CDS (the Clinton version) too but it doesn't seem to me it was a virulent. Is it a variant of our obsession with the minutia of celebrity ("is Jessica leaving her husband?")? I think so, but I don't know what the direct line between them is. Maybe we could wave a magic wand and people could put pre-conceptions aside, once we're in 2006. Yeah that'll happen.

Posted by: anne at 10:49 AM on 31 December 2005

I saw. (And I've done my share of PDF-to-HTML conversions over the years, so I know that was a heck of a lot of work.)

Posted by: CGHill at 10:52 AM on 31 December 2005


With respect, I don't see the inconsistency. Stipulating to your statement that the ACLU claimed FISA was unconstitutional (which Matt obviously disputes), ACLU has every right to hold the administration to the FISA guidelines even if they believe it's unconstitutional. In other words, even if I oppose the Iraq War, I have every right to expect that if we are going to fight the war, then we conduct ourselves within international law and execute military operations wisely and effectively. One position does not preclude the other, IMHO.

As to anne's comments, whether BDS or CDS is worse than the other is in the eyes of the beholder.

Posted by: Scribe at 11:02 AM on 31 December 2005

I've known Matt for about twenty years, though we were both bearing pseudonyms Back In The Day. He doesn't strike me as being particularly deranged. (He has his blind spots, yes; then again, I have mine.)

On the other hand, I come from a decidedly-different vantage point here, since I used to toil on behalf of some Gatherers of Information I shall not (and probably legally cannot) name here. All else being equal, I probably worry less about privacy concerns than most people; I know I'm in a file or three in Washington, and I figure I'm threatened more by Equifax and TransUnion than by NSA. (This is not the equivalent of "I have nothing to hide so I don't care"; everybody has at least something he'd just as soon not appear on Page 1-A.)

I tend to side with the Bushies on this one, which should surprise nobody. However, and I'm sure this jeopardizes my stipend from the Dark Lord Rove, I'm not particularly put out by the response to it: if there's a legitimate civil-liberties argument to be made, then let it be made. That said, though: given the Constitution's general silence on privacy concerns, "But they might be spying on us!" isn't enough of an argument. I assume everyone is watching me unless proven otherwise. (And I'm sure they're falling asleep while so doing.)

Posted by: CGHill at 11:22 AM on 31 December 2005

Apparently I'm getting either slower to respond or longer-winded; each of my previous comments was started in response to one, and another comment was received before I finished. I suppose I could juggle the post times, or force a re-sort in MySQL, but either of those would be more trouble than it's worth.

Posted by: CGHill at 11:25 AM on 31 December 2005

Perhaps it's just a lively debate. :-)

I've known Matt for about twenty years, though we were both bearing pseudonyms Back In The Day.

Distressingly enough, until I read that just now, it never really sunk in who you are, even though I now remember you explicitly mentioning it at least once. I really need to allocate more brain threads to certain tasks.

And make no mistake - the ACLU did argue that the loose standards of a FISA warrant are unconstitutional as applied to criminal prosecutions. If you create a special court for foriegn intelligence upon the argument that normal criminal standards are too strict to get the necessary non-criminal warrants, you can't then turn around and use that same foriegn-surveillance-only court for criminal warrants.

The brief does not, as "Stop the ACLU" wants you to believe, argue that FISA itself is unconstitutional for its stated purposes. The group does argue that the Patriot Act revisions to FISA are unconstitutional to the point of being used in criminal investigations. However, as the ACLU itself says:

FISA was significantly loosened by the Patriot Act (which, for example, allowed it to be used for some criminal investigations), and parts of it now stand in clear violation of the Constitution's Fourth Amendment in the view of the ACLU and many others. However, even the post-Patriot Act version of FISA does not authorize the president to conduct warrantless eavesdropping on U.S. citizens or permanent legal residents in the U.S. without an order from the FISA Court. Yet it is that very court order requirement - imposed to protect innocent Americans - that the President has ignored.

In short: the 4th Amendment says the government can't invade our privacy. Three separate statutes list exceptions to this for the good of the people - two statutes for criminal wiretaps and one for intelligence wiretaps. The alleged actions of the administration do not fall within those statutes, and since those statutes are the only authorized exceptions to "no spying" under the 4th Amendment, the acts were illegal (if accurately described).

The ACLU is pointing out that even if the post-Patriot Act revisions to FISA are held to be constitutional, the warrantless spying recently alleged is still not permitted. It's like saying "I don't think you should lower the speed limit from 55 mph to 25 mph on this interstate, but even if you do, this guy was going 75 mph, and that's illegal in both cases."

Posted by: Matt at 12:05 PM on 31 December 2005

While I fall on the other side of the argument on this one, I certainly can see your point and understand your reasoning. I too don't have an illusion that I have any privacy. My pseudonym is a feeble attempt at best to minimize any immediate repercussions on a local level to my counter-stream viewpoints.

Additionally, I too fear the commercial invasions of privacy more than governmental. Frankly, I work under the assumption that anyone has access to any of my personal information. That being said, I side with the ACLU on this one on the basis of principle. When in doubt, we should always err on the side of curbing government power to minimize the opportunities of abuse of that power. Now more than ever, it's important to clearly define and protect the limits on government authority and power to intrude on the rights of the people its sworn to serve.

Posted by: Scribe at 12:10 PM on 31 December 2005

What it boils down to, I think, is whether the President's Article II powers as Commander-in-Chief justify listening in on the conversations of, as he says, people "talking to Al-Qaeda." I tend to believe that it does. I can see the slippery-slope argument, and in view of this administration's tendency to crank everything it wants up to 11, I can understand why it has a certain appeal.

I still have some serious reservations about things like the USA PATRIOT act. But I don't see that Bush's overreaching in one area means that he's overreaching in all areas.

Posted by: CGHill at 10:21 AM on 2 January 2006

Interesting remark at Harshly Mellow:

If Newsweek is right and Ashcroft had issues with the NSA program, then there's got to be something rotten there. Not that I was thrilled based on what we already knew about it, but Ashcroft objecting? That man would jail his own grandmother for taking an extra Percocet after hip surgery. If he didn't like it, that's a huge red flag.

Posted by: CGHill at 3:05 PM on 4 January 2006