Saturday, January 21, 2006


Let's consider the warrantless wiretaps that the president thinks are so necessary to national security. This week's arguments in favor look like this:
  • This is a necessary part of the war on terror and we can't afford to wait for warrants.
  • It's really legal because Congress authorized POTUS to do anything he [deleted] well pleases in support of the war on terror.
On the subject of warrants, there was an interesting article, published in the San Francisco Chronicle on Christmas Day, on the fact that the FISA court has modified more of the wiretap requests that it received from the Bush administration (179, with 6 rejected outright) than from the four previous administrations combined (2). (OK, earlier presidents were doing this, but not without warrants.) The reason it modified the requests was because the administration couldn't show probable cause. FISA wiretaps require a showing of probable cause. This is 179 changes/rejections out of 5,645 warrant requests issued by the Bush administration: that's three tenths of one percent. (These numbers are through 2004; see the article for full detail.)

Balked in their wish to spy on U.S. citizens for whom they couldn't show probable cause that they were communicating with terrorists (in less than half of 1% of cases), the administration chose to issue executive orders to bypass FISA altogether. This is very likely the reason that U.S. District Judge James Robertson resigned from the FISA panel in protest. This looks to me as if the administration simply can't bear to account to anyone for any of its actions, and friends, that's not a valid position for the country's president, no matter who he thinks we're at war with.

The administration is currently justifying these efforts on the grounds that they either have protected us or are protecting us from attack by al Quaeda. This, frankly, is hogwash. Al Quaeda (using that as shorthand for the Islamic fundamentalist terrorist underworld) has agents who are willing to die themselves in order to attack western targets. There is no defense against a man who is willing to die in order to kill you. They could possibly intercept another carefully coordinated series of attacks a la 9/11. They can't do a thing about a single man with a dirty bomb in a backpack, or a truck.

The Daily Kos blog published a great analysis of how likely you are to die from a terrorist attack versus any other cause. The number I like is that you are 7,881 times more likely just to die (from any cause) than you are to die in a terrorist attack. (For that matter, you're 24 times more likely to die from overdosing on Motrin than from a terror attack; it's a great article if you haven't read it.) At this point, the cost benefit analysis breaks down. On those odds, no, it is not worth allowing this level of erosion of civil liberties in order to "protect" us. If you're really that afraid of dying, you'd never drive a car (85 times more likely than terror), and you'd certainly never smoke (1,290 times...). Since we all drive cars, and too many of us smoke, we're obviously not that scared; we just haven't considered the odds properly.

I'll consider the issue of Congressional permission to do whatever in another rant.


  1. I said this on Fanatical Apathy, but I'll say it again. Let's *assume* that the White House really believes that Congress gave it full authority to "do whatever it takes" to defeat the terrorists, including ignoring FISA (and probably several other laws). Show me where in the Constitution it says that Congress can override Constitutionally-guaranteed checks and balances(namely the 4th Amendment) with a mere act of Congress. Last I heard, it required a Consitutional amendment to do that. Or has that changed, too? If the White House is right, then the Congress acted illegally. If the White House is wrong, then the White House has acted illegally. So which is it?

  2. Starstuff, AFAIK it's both of the above, unfortunately; and it involves expanding your argument about the Constitution to include the facts that

    (1) only Congress can declare war, and

    (2) Congress has NOT declared war (on whom, BTW?).

    Congress did, unfortunately, pass a much too loosely worded resolution after 9/11 giving What's-His-Face more authority than they should have done. In our system, the Supreme Court should evaluate that law for constitutionality, but fat chance we have of THAT happening.

  3. Anonymous4:44 PM

    I think the administration went this route because what they are actually doing would not be allowed by the FISA court, pure and simple. We don't really know specifics about how many people were wiretapped (from a low figure of 500 up to thousands at any time). That's one of the main problems I have with this policy - we don't really know what they are doing. They are just telling us what they're not doing and I guess we are supposed to just shut-up and take them at their word.
    Or not.

    My question is, if what Bush is up to here is completely legal, why didn't they ask for these powers in the Patriot Act? Perhaps, if I may be so bold, because they are not legal.

  4. If I remember my Con Law correctly, the fact that the resolution was loosely worded goes against the White House's claims, not in their favor. A *reasonable* Supreme Court would have to find in favor of the Constitution, and give the Congress and the WH a slap on the wrist. But as you say, hedera, the chances of the question getting that far with this Congress and the next SCOTUS are slim to none.