Honestly debating the NSA Surveillance Program

David Limbaugh has written a column asking for honest debate of the NSA surveillance program. I believe his request deserves an answer, so I will attempt one as best I can.

Does anyone really believe President Bush wants to spy on innocent old ladies or any other group of innocent Americans?

What anyone believes the President's motives are for his authorization of spying that violates the FISA law is irrelevant to a discussion of whether or not the President has the unilateral authority to violate laws when he sees fit to do so.

Does anyone -- besides the loony left and unwitting dupes they have convinced -- really believe President Bush has a sinister desire to consolidate executive power, make himself a dictator and eviscerate the Fourth Amendment? These are some of the things the knee-jerk opponents of President Bush's selection of Air Force Gen. Michael Hayden to head the CIA apparently believe.

Again, what anyone believes the President's motives are is not pertinent. The President's motives might not be sinister, but that would not change the fact that his actions do indeed consolidate executive power, implying for himself dictator like powers while eviscerating the Fourth Amendment (and the rest of the Bill of Rights). It is actions that are a matter of primary concern.

Gen. Hayden is considered to be one of the architects of the administration's NSA warrantless surveillance program, so critics and skeptics of that program have jumped in to oppose him for that reason alone, though other objections have also surfaced, such as that a military leader shouldn't run a civilian intelligence organization.

Political leaders, even certain Republicans like Sen. Arlen Specter, have promised to exploit the Hayden confirmation hearings as an opportunity to inquire into the propriety of this controversial program.

Like some other people, it occurred to me that President Bush is more than ready to have a public debate over his NSA program. Otherwise, he surely wouldn't have chosen a man whose intimate connection to the program is well known and vulnerable to political posturing.

If the President were "more than ready" to have a public debate over his NSA program he would not have secretly authorized it. He would not have told members of Congress that were briefed on the program that this information was classified and that they were not allowed to discuss what they had been told with anyone. He would not have asked the New York Times not to run a story revealing that he had authorized the NSA to engage in warrantless surveillance and he would not suggest that discussion of this program helps our enemies.

I, too, welcome this debate, though proponents of the program begin at a bit of a disadvantage because security concerns preclude them from producing evidence that would vindicate their decision to implement the plan. But philosophical and practical arguments, apart from the specifics of evidence in particular "searches" will be fair game.

I won't rehash all the arguments for and against the program, except to say that its opponents have shamelessly mischaracterized it as "domestic" spying when one of the parties to the communications must be outside the United States. They've tried to create the impression that the privacy of innocent civilians will be violated in these "broad sweeps." And they've portrayed the program as an important part of an overall pattern of the Bush administration to trample on civil liberties and expand presidential powers.

No, they've accurately described that the President authorized the NSA to engage in surveillance of domestic targets without getting a warrant, which FISA expressly prohibits. I agree with the last part, though. Opponents have characterized this program as part of a larger pattern of the Bush administrations trampling civil liberties and expanding presidential powers. Mr. Limbaugh seems to be suggesting that is simply absurd to suggest, but it is unquestionably true that the President has expanded presidential powers while trampling civil liberties. Take for example, the administration claiming the right to unilaterally void an American citizen's 5th amendment rights as this administration has done with Jose Padilla, whom was held without charges until it appeared that the administration would have to defend itself before the Supreme Court, at which point Padilla was transferred out of military custody.

But the only communications intercepted under the program are those where at least one party is a terrorist, a suspected terrorist or has ties to terrorists. Absent cases of mistaken identity, which can also occur with warrants, it's hard to imagine that many innocent people will be the subject of such surveillance.

Mr. Limbaugh can not know that the only communication intercepted under the program are those where at least one party is a terrorist, a suspected terrorist or has ties to terrorist because the program is conducted without judiciary oversight in secret. He finds it hard to imagine that innocents will be targeted under such surveillance, but he is begging the question. Of course, I also do not see how innocents would come under surveillance in the scenario he describes. But the scenario he describes is 1) beyond our current ability to confirm or disconfirm given the knowledge we have and 2) contradicts what we do know about the program.

If opponents of the surveillance program were acting in good faith, why would they mischaracterize the program as domestic spying?

Because it is domestic spying. Were it foreign spying we would not be having this debate, as the President already has the authority to conduct that without going through the FISA court.

I can certainly understand a strong public reaction against a president violating civil rights of American citizens, especially for his own purposes, like Richard Nixon was alleged to have done with his enemies list. In those cases, the president would have a personal or political motive to abuse the civil rights of citizens.

But what sinister motive would President Bush possibly have for eavesdropping on non-terrorists? Does anyone really believe he has anything to do with micromanaging the intercepts, much less selecting the targets of the surveillance? Does anyone really believe the United States has the resources to waste time spying on innocents?

I repeat, what the President's motives might be is not relevant to this debate. He authorized the NSA to engage in spying that violated the law. We can not determine the scope of that spying unless it is investigated, and I would remind Mr. Limbaugh that the argument he is presenting as a defense of this program would have equally served to have protected Nixon from investigation. Indeed, Nixon used the very same defense.

Moreover, does anyone really believe that President Bush, Gen. Hayden, Secr. Rumsfeld or any other major player would support this warrantless surveillance program if it were not necessary? That is, propaganda aside, does any reasonable person truly believe that if we could always accomplish the necessary surveillance by going through the sometimes laborious and time-consuming warrant process, the administration would insist on the right to do it without warrants?

What anyone believes does not matter. What matters is what the facts tell us, and unless we peal back the veil of secrecy which the administration is using to defend its actions, we will not know whether or not the program was "necessary." Secondly, if this program is necessary, the President is obligated to take the proper legal steps to make the program legal. If it is to be decided that warrantless surveillance upon American citizens is necessary, then that is a decision that the public must have some say in, especially when their representative passed a law in 1978 which expressly forbid warrantless surveillance of US citizens. The President does not have the authority to make laws the subject of his fiat.

The only people who believe that are those inclined to believe the president wants power for the sake of it, or for the sake of abusing the civil liberties and privacy of American citizens. Folks, that's just silly and absurd on its face.

I thought Mr. Limbaugh was interested in honest debate? Here he has just hand-waved the entire issue on the grounds that the President can't possibly have non-noble motives. I believe this is best answered with a proverb: "the road to hell is paved with good intentions."

I am confident the administration would not be conducting warrantless searches unless it believed the delay involved in obtaining a warrant in many cases would jeopardize our national security and possibly American lives. Why is this so difficult to comprehend in an age where terrorists have unlimited access to disposable cell phones and other high-tech communication devices?

Mr. Limbaugh is entitled to his confidence. But as Thomas Jefferson once said, "in questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." What is at issue here is whether or not the United States president will be bound by the Constitution. The FISA law allows for 72 hours of warrantless surveillance before evidence must be presented to FISA court in order to continue surveillance. If the President believes he needs more time than that, he should ask Congress to revise FISA. But as we know, when just that was proposed, the administration answered that it was not necessary.

The president is not playing war games here, but some of his opponents are playing political games. Fortunately, it appears the American people instinctively understand that the naysayers are long on civil liberties hysteria and short on national security concerns. Let their posturing continue as this public debate unfolds. It is time to have this out and to expose the privacy charlatans for who they are.

Now we see what Mr. Limbaugh means by "honest debate." Apparently, it means dismissing the concerns of opponents of the programs as "political games" by "charlatans" who lack concern for national security. Were Mr. Limbaugh interested in honest debate he would leave such speculations aside, and would address the arguments of critics without resorting to poisoning the well.

Update: As GSJ notes in the comments, USA TODAY is reporting that:

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren't suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.

The NSA was never supposed to be used to spy on Americans, yet according to this report, Americans have come under its surveillance, with one source alleging that the NSA's goal is "to create a database of every call ever made" in the United States.

Glenn Greenwald explains the significance of this new revelation, focusing on the administration's efforts to avoid judicial review and inquiry (another story today is that the NSA killed an investigation).

Meanwhile, the argument is surfacing that the "NSA [is] doing its job" by gathering a database of your phone calls and that you have nothing to worry about if you aren't a terrorist.

This defense assumes that we can take the government at its word that only terrorists will be targeted by this program and that it will not be abused. These supporters believe that the NSA can be trusted with the Ring of Gyges, it would seem. But were that the case, we would have no need of a Bill of Rights, we could simply trust that our rights will be protected. I had thought we settled that matter in 1791 when our young nation decided otherwise and voted to ratify the Bill of Rights.

As Madison noted in Federalist #48, "power is of an encroaching nature, and ... it ought to be effectually restrained from passing the limits assigned to it." "[A] mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands," he concluded. It is not enough to point to our Constitution and say that the rule of law is still in effect. Encroachments of power must be turned back, lest they tend to turn government, in the words of Washington, into "a real despotism."