What Are We Talking About?

Ken AshfordWiretapping & SurveillanceLeave a Comment

With national discussion still on fever-pitch about the legality of the NSA wiretapping, one thing to keep in mind is that nobody really knows exactly what the so-called "terrorist surveillance program" actually entails.

Kevin Drum looks at two developments:

(1)  The Bush Administration finally briefed a House subcommittee Wednesday on the NSA’s domestic spying program, causing Democrat Bud Cramer (a former Alabama D.A.) to leave the reservation:

"It’s a different program than I was beginning to let myself believe," said Alabama Rep. Bud Cramer, the senior Democrat on the Intelligence Committee’s oversight subcommittee. "This may be a valuable program," Cramer said, adding that he didn’t know if it was legal. "My direction of thinking was changed tremendously."

(2)  On the other hand, current and past judges of the FISA court have doubts about the program’s legality and constitutionality:

Twice in the past four years, a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush’s eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.

The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly — who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal….Both judges expressed concern to senior officials that the president’s program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions.

Sadly, by contrasting these two stories, Kevin misses the boat.

Unlike Kevin, I don’t find this discrepency "curious".  Rep. Cramer thinks the program is "valuable".  Well, so do I.  I assume it is (at least until there is evidence to the contrary). 

The FISA judges doubt the legality and constitutional of the program.  Well, so do I.

There is no inherent contradiction in the views.  And just because there is value to a program does not mean it is legal or even constitutional. 

There would be some value, for example, in rounding up and interring every Arab-American if the goal is to decrease the risks of a terrorist attack.  But doing so would be simply illegal and unconstitutional.  Kevin wrongly conflates the what is "valuable" with what is legal.  An amateur mistake, and he ought to know better.