Saturday, February 11, 2006

My theory of constitutional law, as pithy as possible

Here's what I think about the NSA scandals:
The government has enough power to screw people right now. If you argue against national security powers merely because you're afraid the government will screw people, all you're doing is weakening national security without keeping people from being screwed.


Anonymous Hull said...

I don't think everyone that argues against the NSA eavesdropping on US citizens does so " merely because they're afraid the government will screw people."

First, while there may be several examples of the checks and balances system of government in this country being subverted, do those examples suggest that subverting checks is a good thing? The government may have enough power to screw people already, but is that something we want to advocate??? Uh, no.

Second, I see no evidence that circumventing the need for a FISA court warrant in any way helps national security. Section 1805 of the FISA law on emergency situations (I think that's the right section) allows NSA a 72 hour window to obtain a warrant AFTER eavesdropping in an emergency situation. So, this argument that obtaining a warrant somehow slows down NSA appears to be BS.

Finally, as Republican Sen. Arlen Spector asked during the hearings: If this program is so vital to National Security, why not simply get approval from the FISA court? The FISA court apparently approves everything that is asked of it. If you needed to eavsdrop in international phone calls between US citizens and "terrorists" why not got an exemption to the FISA law barring such eavesdropping for this "wartime situation".

At first I felt that this was a BIG BROTHER/Bush further infringing on civil liberties issue. But after having heard some of the hearings and read the FISA statute, I feel that this is a pretty straightforward legal question and that's it.

Do the President's inherent Constitutional wartime powers and the Congressional approval [AUMF] allow the President to violate the section of FISA barring eavesdropping on US citizens? The Congressional Research Service and many Constitutional scholars say, no.

9:06 AM  
Blogger Sean Strasburg said...

You make good points--and since my original post was a bit tendentious, I can hardly blame your directness.

First, I didn't say that *everyone* argues against NSA spying because they're merely afraid of the govt screwing people. I said that those who do are missing the boat. You either make a general argument about trying to keep the govt from screwing people--in which case there are far more pressing issues than NSA--or you make a carefully crafted argument about why national security deserves some exception from our general view that the govt can do just about anything. The latter argument, I suspect, could not be made. If anything, national security is a field in which we should be *less* wary of govt overreaching.

As for checks and balances, I take your point. Here's the theory of the second best, though: it may be that, if a govt is largely unconfined in many ways, that trying to impose the "first best" constraints of limited govt on a particular field (like natl security) will be less efficient than letting the govt run free there as well. An American govt with a free hand to invade other countries, but handicapped when it comes to defending America, is a very dangerous situation indeed.

As for your note that circumventing FISA doesn't help natl security, that's another good issue. I would argue this. If there truly is no reason to do it, I would suggest that Bush would not have done it. Of possible reasons to do it, I can think of two: first, that Bush wants to push the power of the presidency; second, that there were taps that needed to be carried out that couldn't be under FISA. I think the first is a political question, and I'm not sure where I stand on "the most dangerous branch." See Michael Stokes Paulsen, passim. The second makes me highly nervous, and puts me in Bush's camp.

Great comment, though. I hope you have your own blog, Hull.

11:23 PM  

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