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On the Signatories of the Two Letters in Response to Wiretapping:

Orin mentions the response by scholars and government officials to the DOJ "White Paper" on the wiretapping program. Two additional points bear mentioning. First, this same group issued a letter on January 9, 2006 that laid out their views; the DOJ white paper responded to that, and their February 2 letter responds to the DOJ memo.

Second, and more importantly, this is an impressive group that includes distinguished people from different political camps. At least three are not on anyone's definition of the conventional political left -- Curt Bradley, Richard Epstein, and Bill Van Alstyne. And, for what it's worth, Bradley was the Counselor on International Law in the State Department Legal Adviser's Office for 2004 (it's a one-year position, chosen by the State Department Legal Adviser).

Perhaps in the best of all worlds this point about the signatories would be irrelevant, and each of us would evaluate the arguments without regard to who made them. But in a time-starved (and politically charged) world, the identities of the signatories often is significant. And here the breadth of the signatories is notable.

exSEC Attorney (mail):
I would hardly count William Sessions a liberal or member of the political left.
2.7.2006 4:46pm
anonymous22:
I respect many of the signatories of this letter, but they would certainly have different views if they approached this problem not as professors of law but as officers charged with protecting the security of the nation. Unfortunately, legal experts are not immune from being influenced by other factors than pure principle; I would suspect that these fellows consciously or unconsciously want the legality issue to be salient and cannot see the problem in having to run authorization for wiretaps by multiples sets of government lawyers.
2.7.2006 5:03pm
Anderson (mail) (www):
A22, the issues you describe are for the Executive to bring to the Legislature's attention, and for the Legislature to deliberate upon and (in their wisdom) to legislate upon.

They are not relevant in the slightest to the question of whether existing laws were broken or not.
2.7.2006 5:17pm
Medis:
A22,

And actually, some of them were in fact such officers. As a interesting general point, people who have worked in law enforcement, the armed forces, or national security positions are not always opposed to having bright line rules of conduct.
2.7.2006 5:22pm
Kovarsky (mail):
A22,

And it is my guess that, if you were to do a statistical study, the preference of lawyers in favor of rights relative to national security would be of roughly the same or less than that of security officers in favor of national security relative to rights.
2.7.2006 5:37pm
Brennan:
A22, it is certainly true that the responsibilities imposed on those charged with protecting and defending the United States would likely affect those folks' view of the relative importance of the legal issue compared to the security risks. (In fact, I strongly suspect that all government officials develop a heightened appreciation for the importance of their duties to the country's well-being.) Of course, that doesn't at all prove that the military/security professionals are correct in THEIR assessment of the legal issues.

Perhaps more to the point, isn't the "salien[ce]" of the "legality issue" pretty much established as a general proposition by the fact that the oath taken by all of our executive officers (from the President on down) is focused on requiring their support for Constititon, i.e., our system of laws?
2.7.2006 5:39pm
Steve:
Is there any possibility whatsoever that the choice between the rule of law and national security might be a false choice?
2.7.2006 6:02pm
Anderson (mail) (www):
A22, are you okay under that cascade of comments, or do we need the Jaws of Life to get you out? ;)
2.7.2006 6:10pm
Medis:
Steve,

One might observe that a lot of our enemies throughout history have argued that our adherence to the principles collectively known as the "rule of law" makes us weak. And yet, in the long run we seem to beat them. So, I think that history certainly suggests that the rule of law is a strength not a weakness, despite what many have assumed.
2.7.2006 6:12pm
Kovarsky (mail):
Steve,

In the end I think the rule of law and national security are probably substitute goods, but it doesn't follow from their substitutability that the decision between the two is binary. The question isn't really "do we want the rule of law or do we want security," or even "does security come at the expense of the rule of law" (it probably does), but how much of one is it worth to give up in order to get some measure of the other.

Of course that's a disfavored framing of the issue because it lends itself least of the three framing candidates to categorical disposition and soundbites.

L
2.7.2006 6:34pm
frankcross (mail):
I can understand how the content of particular laws might conflict with security, but not how the "rule of law" as a principle conflicts with security.

One thing we know is that the rule of law makes nations vastly wealthier, which would have a security benefit that surely outweighs the negative consequences of enforcing a particular law that conflicts with security.
2.7.2006 6:43pm
Splunge (mail):
And yet, in the long run we seem to beat them. So, I think that history certainly suggests that the rule of law is a strength not a weakness, despite what many have assumed.

Er, no. That just proves that if a fetish for the law is a Western weakness, it isn't in itself fatal. It could be that there are strengths of the Western system (economic freedom jumps immediately to mind) that more than compensate for the enormous expense we incur trying to reduce all aspects of human moral judgment to a written algorithm.
2.7.2006 7:51pm
Medis:
Splunge,

As an aside, I would suggest that economic freedom and the rule of law are not distinct concepts. Also, the rule of law is not the same thing as a completely codified system of law.

Anyway, I agree that our successful history does not "prove" that the rule of law is a strength. That is why I used the word "suggests" instead.
2.7.2006 11:06pm
anonymous22:
On to why I don't think the legal issues have any real substance: I don't think that the framers of the constitution, who lived in an age of legal formalism, would have perceived a great difference between eavesdropping with secret judicial authorization and eavesdropping without such authorization, nor is there any pragmatic reason for making a great distinction between the two. Honestly I don't see how the judges act as any sort of a principled check on this power if they are totally insulated from any sort of public input. The FISA "judges" are at best bureaucrats who make sure everything is on the up-and-up, a sort of internal inspector general; their "court" exists entirely within the executive branch. The idea of "secret judges" has no common-law pedigree; it is an ancient inquisitorial concept that has no history in this nation. I just mean to be suggestive here; like everyone else I don't know what the FISA judges have actually been up to.
2.8.2006 2:25am
Kovarsky (mail):
A22,

I will correct a couple of assertions here:

(1) Actually, the Framers thought the warrant requirement to be hugely important. The warrant requirement represented to them an enormous step forward from the preceding British regime, whose abuse of the writ procedures were well documented.

(2) The FISA courts are not "bureaucrats" unless you are just trying to be nasty. FISA is (I'm almost certain) an Article III court, which means that it is decidedly non-bureaucratic. It is staffed by judges with lifetime tenure.
2.8.2006 4:43am
Medis:
Kovarsky,

That is correct--the FISC is made up of Article III judges, specifically 11 district court judges selected by the Chief Justice. See 50 USC 1803(a). Similarly, the FISCR is made up of three district court or court of appeals judges selected by the Chief Justice.
2.8.2006 8:24am
Just an Observer:
Medis,

Kovarsky had an interesting observation in a previous thread in the context of wondering what Specter might envision in his proposal for review of the legal issues by the FISA courts. He points out that Specter's proposal might include some legislative tweak in the definition of the courts' jurisdiction to facilitate such a test case.

Obviously, whatever Specter has in mind requires cooperation from the administration in seeking court review. Just as obviously, Gonzales and Cheney have brushed that off.
2.8.2006 9:49am
Medis:
JaO,

I also found that conversation interesting, and briefly brainstormed a couple ways in which Congress could expand standing to challenge this program. Indeed, I wonder if Specter has something in mind that could at least get to the stage of requiring a veto.

Generally, despite the opposition of the Administration, I even wonder if somehow the Senate will work out a veto-proof action (as we previously discussed, with the participation of the leadership behind the McCain Amendment, including McCain himself, it might be possible). But I guess we might have to wait for the future hearings to get more clues.
2.8.2006 10:02am
Medis:
I gather from news reports that Specter announced today he is drafting legislation to support his proposal. I haven't seen the announcement itself, but it should be interesting to see what he comes up with.
2.8.2006 9:15pm