January 17, 2007

Return to the Constitution

At long last, the Administration has agreed to relax its stance that it will unilaterally conduct warrantless electronic surveillance of communications, and submit its search requests to review by the Foreign Intelligence Surveillance Court.

This is something I and a whole lot of other people have been demanding for a very long time. I can't speak for other objectors to the original policy, but I for one never called for the program to end. I did, however, call for an inter-branch check and balance on the use of this power. That call has now, finally, been answered -- and to my satisfaction. By submitting to warrant applications and judicial review, and complying with existing legislation, the Executive Branch is now playing between the foul poles again, and I have no complaint about the surveillance.

Too bad the Republicans had to lose control of Congress to spur the Administration to start obeying the law. But better late than never. Perhaps, too, this is an object lesson about the dangers of one-party rule.


Anonymous said...

I'm sure you can run rings around me on this issue but didn't FDR authorize "all" communications in and out of the United States following the Pearl Harbor?

Burt Likko said...

I'm not entirely sure what you're talking about, but assuming that there were communications restrictions or surveillance ordered by FDR, he had the strength of a formal declaration of war by Congress behind that order. Bush lacks similar Congressional authority.

That's not to say Bush can't order monitoring of international communications. But I do insist that there be some kind of checks and balances to protect against abuses of that power.

Anonymous said...

This is more than a year before Pearl Habor

In a signed May 21, 1940 memorandum to his attorney general, FDR wrote:

I have agreed with the broad purpose of the Supreme Court decision relating to wire-tapping in investigations. The Court is undoubtedly sound both in regard to the use of evidence secured over tapped wires in the prosecution of citizens in criminal cases; and is also right in its opinion that under ordinary circumstances wire-tapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights.

However, I am convinced that the Supreme Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation.

It is, of course, well known that certain other nations have been engaged in the organization of propaganda of so-called "fifth columns" in other countries and in preparation for sabotage, as well as in actual sabotage.

It is too late to do anything about it after sabotage, assassinations and "fifth column" activities are completed.

You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigating agents that they are at liberty to secure information by listening devices direct to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens.

Burt Likko said...

I, for one, would have objected to that executive order, for the same reasons that I objected to Bush's proposal -- it is a unilateral exercise of power that intrudes upon civil liberties.

FDR's argument sounds a lot like the argument offered by Bush, except for anticipating a favorable ruling from the Supreme Court: "I think I need to do it so therefore I must have the power to do it."

FDR's predictive argument turned out to be wrong in the long run. Consider the justification offered for warrantless domestic wiretaps in 1971 by the Nixon Administration. In that case, the government claimed that there had been 1,562 bombing incidents in the United States in the first half of 1971, most of which involved government buildings. Therefore, the argument went, the government was required to investigate and thwart "attempts of domestic organizations to attack and subvert the existing structure of the government." Further, the government made a claim of prior Congressional authorization to conduct warrantless wiretaps. (Again, this sounds familiar -- except that in 1971, there apparently had been hundreds of bombings and since the attacks in 2001, there have been none to speak of.)

Unpersuaded, the Supreme Court found that warrants were needed and would not frustrate either national security nor Congressional intent, and put particular emphasis on the need for a neutral magistrate to oversee executive decisions. United States v. District Court (1972) 407 U.S. 297.

Whether FDR was within a legitimate "gray zone" by ordering the warrantless wiretaps before the war, after 1967 (Katz v. United States 389 U.S. 347) he would clearly have been in the wrong.

Anonymous said...

I thank God that FDR and Abraham Lincoln went ahead and did what they thought was right to preserve, protect and defend the Constitution . . .

Burt Likko said...

I too greatly admire both FDR and Lincoln, and I get your point (I think) that extreme times call for extreme measures and the finer points of due process and civil liberties are not a suicide pact. But while both men did things that pushed the limits and would only be excusable in emergency times (FDR convening military tribunals for Nazi saboteurs; Lincoln unilaterally suspending habeas corpus and nationalizing railroads) they also did things that were both unnecessary to preserve national security and repugnant to our way of life (FDR sent thousands of loyal Japanese-Americans to internment camps and Lincoln had a Congressman arrested for his anti-war speech). It can be difficult to draw the lines, to be sure, and I agree it's easier to draw them well after the fact. But the very difficulty of that task is why we are supposed to elect thoughtful, intelligent leaders who are capable of making calls like that.