An Actual Factual Difference

The NSA Program and the Law

The FISA law may be bad law, but it's law, and as far as we now, Obama is following it.

Yesterday in the OJ comment thread (by the way, sorry for mangling those dates), Onsafari wondered why I hadn't weighed in on the Snowden business. Then, pumpkinface huffed that Onsafari shouldn't hold her/his breath because Tomasky must surely be flummoxed by the fact that Obama has approved something like this, so silence had to be the only option.

Actually, I wrote about it the day after the story broke. I called the post "Big Brother Is Watching, and People Don't Care," and I took the view that even putting terrorism aside, there's bound to be a trade-off between privacy and the astonishing amount of information we have at our fingertips, and that while I wasn't thrilled that this was the case, I could live with it provided--provided--the things the government is now saying are true.

Now, I'll go a step further. For everyone running around saying that this proves that Obama is Bush and there's no difference, I point out what is obviously a rather crucial difference. At some point after 9-11, the Bush administration just started doing domestic surveillance in--what's the word here?--circumvention or violation of existing law. News of the program broke, in The New York Times and elsewhere, and eventually the Bushies had to seek changes in the law.

But those didn't happen until 2008. So, for a good six or seven years, the Bush adminstration was just doing what it wanted, under the unitary executive theory, cavalierly ignoring the law (indeed, in 2010, a federal judge found that Bush had been acting illegaly). So a law was passed, the Foreign Intelligence Surveillance Act amendment. It passed 293-129 in the House and 69-28 in the Senate. In both houses, Republicans supported it overwhelmingly while Democrats were split about evenly. The changes were reauthorized in 2012 by similarly large majorities with similar intra-party splits.

Now it is certainly true that the law gave a president, any president, broad authority--the kinds of authorities you would imagine the Bush administration sought. And it apparently has had the effect of weakning the FISA court's role in these programs. Nina Totenberg on NPR just this morning:

Those changes allowed the government to conduct the so-called PRISM program and monitor any and all conversations that take place between the U.S. and someone in a foreign country. No longer is there a requirement of individual targeting, observes Jameel Jaffer of the ACLU.

"It's a very different role that the FISA court is playing now than it played five years ago," Jaffer says. "The FISA court is just reviewing at a very programmatic level: Is the government targeting only international communications, or is it impermissibly targeting domestic ones? That's the only question that the FISA court asks." In short, the FISA court is now far more removed from the specifics of targeting people for surveillance.

Former National Security Agency general counsel Stewart Baker concedes the point. "But let's remember that the reason they lost that authority was some aggressive actions on the court to enforce what was called the wall between intelligence and law enforcement," Baker says. "That may have cost us our best chance at catching the 9/11 hijackers ... before the hijackings."

As a result, the FISA court became "less a court than an administrative entity or ministerial clerk," says William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University. "They weren't reviewing law anymore; they were simply sort of stamping papers as approved or filed."

Now. You can take issue with this if you like, argue that it's a bad law that needs to be changed, but it is the existing law. Members of Congress have been briefed on it and on what the administration has been doing under its terms. That's why it's good that this story came out, and while I think that young Snowden (neither traitor nor hero to me but something in between) has probably exaggerated some of the authority and power (two different things) he and people like him had, the one thing I salute him for without reservation, and I certainly salute The Guardian and The Washington Post for this, is that it's a good thing we're having this debate. If it leads to changes in the law that raise the bar for this and future administration to carry out this kind of data mining, then good.

But as far as we know right now, the Obama administration has complied with the law. The Bush administration ignored the law. I know that some of you are going to call this Obama apologetics, but you know what? I don't care, and you're placing your own smug certainty about the alleged indistinguishable evil of systems above the facts. You should acknowledge that this is an actual factual difference, and an important one. If you want to change the law, agitate to change the law. I'd probably support some changes in the law.

But I do take terrorism seriously, and I would imagine there are daily or near-daily threats of one degree of severity or another, and I'm simply not the civil-libertarian purist that people assume liberals to be. The Constitution is a strong document. Even leaders I generally admire a great deal--FDR most notably--trampled on civil liberties. But what they did would be utterly indefensible today, and no president from either party could get away with that kind of thing. I mean let's face it, the internment of American citizens! A lot worse than anything Bush did.

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This doesn't mean Bush is better than Roosevelt (hardly). It does mean that we as a soceity have decided as the years have passed that we value civil liberties more than we did then, and it means that the politcal power of the forces that agitate for the protection of civil liberties has grown a great deal since the 1940s and is formidable. Of the top 10 things I worry about for this country, the possibility that we're going to witness a government-led assault on our basic rights isn't one of them. I suppose that's incomprehensible to a lot of you, but it's my take.