December 2005


There�s a lot of confusion out there about the illegal wiretap scandal.

First, capsule this is not a constitutional issue. The Bush Adminstration portrays it as one in two ways. First, treat it points to case law that suggests that it is not a Fourth Amendment violation to eavesdrop on international calls for foreign intelligence purposes. Second, story it says that the President has the constitutional authority as the Commander in Chief to do whatever he deems necessary in fighting a war, here, the war on terror, or terrorism.

The first point, if true, is irrelevant, because statutes prohibit eavesdropping on American persons without a warrant. Statutes can and do provide more rights that the constitutional default.

The second point is bullshit. There is zero legal authority for it and it is part of the Bush Administration campaign to grab powers for the executive branch. They actually claim the founding fathers wanted the president to have king-like authority over foreign affairs. The case directly on point, which Bushies failed to cite in their terror memo because it eviscerates their argument is Youngstown Sheet & Tube Co. v. Sawyer (1952) 343 US 579. The case says the President can’t evade the will of Congress, even in wartime. Simple enough.

Therefore, this is a rule of law issue. Can the President break the law? Here, the President broke the law. The law says if the government has probable cause to believe an American citizen is an agent of a foreign power, it can intercept his communications. He just has to get a warrant first. Bush didn’t.

Recent polls suggest that many Americans support the wiretapping. But whether people think the wiretapping is useful or not isn’t the question. For example, in the link above, one woman said, “surveillance without a warrant could be justified if the government had good reason to suspect someone of involvement in terrorism.” That is, in fact, the law. In fact, you could get a wiretap warrant even if the person wasn’t a foreign agent under this standard. The only thing is, you have to go before a judge and have it reviewed.

The problem with the “majority of Americans” story is that we don’t know what they are being asked. I also think that if the people eavesdropped on were working with terrorists that they should be surveilled! I just think there should be a warrant, and I know that a warrant isn’t an obstacle to timely surveillance. I bet the vast majority of Americans agree with me.

The right wing press has some BS out there about how long and how hard it is to get a warrant for national security surveillance. It is not. It’s as easy as pie. There’s no opposition, you just put your reasons in an affidavit and take it to the FISA court (FISC). My friends in the Justice Department they tell me it�s easy, but you don�t need anecdotal evidence. Look at the statistics. We know it�s easy, because FISC almost never turns the government down. And as for timing, FISC does nothing but give the government warrants, and the statute allows the government to do the surveillance and get a warrant 72 hours later. Three days to get a warrant? It would take a few hours at most. Besides, don’t we want the judges to make some review of the claims the government makes? That’s what we mean by “checks and balances” and “separation of powers”.

Ok, the President broke the law. We know that. The next question is, should the law change? Prof. Fried�s op ed suggests that it should, in a particular way. Essentially, he suggests that data mining is an important tool in detecting terrorism before it starts and it should be approved. A lot of pundits are hypothesizing that this is the kind of surveillance they were doing, particularly wrt the stories about having tapped in to the phone trunks.

Point one, if you agree, go to Congress and get the law changed. You’re the frickin’ President for god’s sake! Put Social Security reform and ANWAR drilling on the back burner.

Point two is that computer automated mass surveillance, while it sounds good, actually might not work. People think casting a wide net catches more fish, but the holes are bigger and there’s the needle in the haystack problem. Remember that information ? intelligence.

Another interesting question is how privacy invasive is mass surveillance, since you aren’t targeting a particular person. This question will be particularly relevant if point one happens and point two is wrong. We might be willing to put up with a less effective program if in balance it doesn’t compromise privacy too much. One way to look at it is that you are only collecting guilty info, and you don’t know anything about a particular person until you know they are guilty, so its not really privacy invasive at all, unless you think people have a privacy right in criminal activity. Another way is that by we don’t want a world with perfect legal enforcement, that we depend on some crimes slipping through the cracks. So we could authorize this mass surveillance, but only for national security offenses, not for marijuana, e.g. There’s more thinking to be done on this matter.

Meanwhile, the stalling on the PATRIOT Act renewal shows that Congress is pissed and mistrustful, and it should be. The President broke the law. The President thinks he’s above the law. And the Administration claims about how well its doing on the terror front are in myth-land. The false articles about how well things are going in Iraq and the sunshiny reports offered here at home? The failed terrorism prosecutions of Florida professor Al-Arian, and a web programmer Al-Hussayen (registration required to read the stories), the right-wing Fourth Circuit’s concern about DOJ manipulation of the Padilla case, the pursuit of an Oregon lawyer for the Madrid bombings, long after Spanish authorities told the US that we had the wrong man. Perhaps there are signs of some competence, but there’s a serious amount of incompetence. And it�s to mitigate the transgressions of any one branch that the founding fathers established the three branch system of government.

I received a lot of responses to my Wired News column on the President’s illegal wiretaps, drugs which was not surprising. What was surprising was the level of vitriol and name-calling. One person actually called me a bimbo, viagra here and another told me to go back to Afghanistan if I hated this country so much. I guess should “go back to Afghanistan” if I hate our freedom so much that I write columns about how our government doesn’t respect our freedoms.

Let’s assume for the sake of argument that there are times when an illegal wiretap, information pills or a well-times session of torture, saves lives. Does that mean that the law should condone it? That there shouldn’t be a rule against it? That even if there is a rule against it, people should simply accept the wiretapper’s or the torturer’s representation that their actions were necessary and the principle should be disregarded? Or do we question that claim, investigate, even punish?

Yesterday, as part of a conversation we are having about the part denial and complacency plays in our daily lives, Richard Thieme forwarded me a link to a 2002 column he wrote about torture. One part of it is particularly relevant and brilliant. By brilliant, I don’t so much mean that its smart, though it is, but that it sparkles with a moral clarity that’s rare in today’s debates over anti-terrorism policies.

It is not news to say that beatings and torture have long been part of the interrogation process, depending on who is the suspect and who is doing the questioning.

We all know it happens. That isn’t the question. The question is, are we ashamed that it happens?

Feeling appropriate guilt and rationalizing behaviors by instituting policies that justify and support them publicly are two different things. That difference makes all the difference between a society that can’t always live up to its ideals and one that has forgotten where it put them.

What kind of society are we, Mr. President?

I find myself agreeing with an op ed in today’s Chronicle by Victor Davis Hanson about the problem of moral equivalence and its ability to occlude moral questions. The column criticizes the movies Syriana and especially Munich for the offense. I can’t find the link, but he says, “Moral equivalence is perhaps the most troubling of Hollywoods’s post modern pathologies – or the notion that each side that resorts to violence is of the same ethical nature.”

Not only have we have lost track of ethical responsibilities, by, for example, believing that any crime against terrorists is justified. But we have also lost track of the practicalities of following an ethical, rather than expedient course.

The conclusion I draw from the point on which Hanson and I agree is probably opposite the one that Hanson might draw. Hanson says, “Spielberg’s “Munich” assumes just such a false symmetry between the killers who murdered the innocent athletes and the Israeli agents who hunted them down- each in their own way victimized and caught in a cycle of ‘perpetual’ violence. Lost in this pop moralizing is the reality of 1972, when none of Israel’s neighbors was willing to accept the existence of the Jewish state within even its original borders. Back then, there was no change that Israeli agents would storm an Olympic event and murder athletes – but every probability that the Soviet bloc, Western Europeans and Middle East autocracies would never hunt down international terrorists who had done so to Israelis.”

In a simple world, all violence is equal. In a less simple world, terrorists and Israeli law enforcement, in the world of 1972, are not the same. But 1972, like the rest of reality, was even less simple than Hanson says. Historians have written that Israel continued revenge assassinations against people unconnected with the Munich Massacre for 20 years. As Richard suggests, it’s one thing to fail to live up to your ideals, and another to put them aside. Moral equivalence is one way to lose ideals. Moral self-righteousness is another.

Some Christmas reading. I’m obsessed with Murakami. UPDATE: Line of Beauty is so well written. But I’m not sure its about anything interesting.

cheapest 1283, more about 69886,00.html?tw=wn_tophead_3″>My comments about the illegal wiretapping scandal. Also, read Bruce Schneier’s take on the topic.

Questions like these have been pondered and disputed since the invention of the college dorm, hepatitis but rarely, cost until the past couple of weeks, ed unstoned.

Great line in an article by Michael Kinsley about the “ticking time bomb” torture justification. This is something my friends and I have been discussing, especially in light of California’s recent execution of Stanley Williams.

One of my goals for the holidays is to review the news about the United States’ role in torturing people these past few years. Look for that bibliography here soon.

Today, phimosis I filed comments with the Copyright Office on behalf of people who want to unlock their mobile phones and use them on other networks. Readers of The Shout are familiar with the issue from my Wired News column of a few weeks back, prostate Free the Cell Phone. The comments, this site and more about the argument I make, are available from the Center for Internet and Society website, here.

For comments on why the whole commenting process is a Kafkaesque game, impossible to win, check out the EFF analysis here.

I’ve learned that participating in the rulemaking process isn’t my cup of tea. You send in your comments, as do lots of other people, and a few months later one of your mailing lists notifies you that the rules have issued. When you check them out, you see that your concerns went completely unaddressed, and you have no idea why. I much prefer litigation, where at the very least the judge has to look you in the face and tell you “no”.

We’ll see what happens with these comments. I suspect it will make the mobile carriers very mad, but I hope that more consumers and environmentalists will join us and file reply comments supporting our position. The reply comments are due February 1. Interested parties should contact me.
My latest Wired News column is on opisthorchiasis
1282,69771,00.html?tw=wn_tophead_2″>privacy and facial recognition technology.

Today, phimosis I filed comments with the Copyright Office on behalf of people who want to unlock their mobile phones and use them on other networks. Readers of The Shout are familiar with the issue from my Wired News column of a few weeks back, prostate Free the Cell Phone. The comments, this site and more about the argument I make, are available from the Center for Internet and Society website, here.

For comments on why the whole commenting process is a Kafkaesque game, impossible to win, check out the EFF analysis here.

I’ve learned that participating in the rulemaking process isn’t my cup of tea. You send in your comments, as do lots of other people, and a few months later one of your mailing lists notifies you that the rules have issued. When you check them out, you see that your concerns went completely unaddressed, and you have no idea why. I much prefer litigation, where at the very least the judge has to look you in the face and tell you “no”.

We’ll see what happens with these comments. I suspect it will make the mobile carriers very mad, but I hope that more consumers and environmentalists will join us and file reply comments supporting our position. The reply comments are due February 1. Interested parties should contact me.