I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Sunday, June 04, 2006

Remedial NSA eavesdropping course

by Glenn Greenwald

I would really like to respond to the hysterical celebrations among Bush followers over the fact that a group of Muslim extremists were apprehended in Canada in the midst of planning terrorist attacks, but it's literally impossible to understand the point they think they're making. From what I can tell, their "reasoning" goes something like this: law enforcement was able to find out about this plot by engaging in surveillance of telephone calls and internet communications, and this proves that the President is right to engage in illegal (rather than legal) eavesdropping on Americans.

Is a more irrational and incoherent argument even possible? As Barbara points out in the post below (but shouldn't have to), nobody opposes surveillance of telephone calls or Internet communications. Nobody. Proving that such surveillance can be effective in stopping terrorist attacks is merely to state the obvious, not to prove any point in controversy. The issue isn't whether the Government should eavesdrop, but whether it should eavesdrop in compliance with the law (i.e., with warrants) or in violation of the law (without warrants). Aren't we all able to ingest that extremely simple point by now?

The laws we have in place make it easy to engage in surveillance of all types against terrorist suspects like this. Few things would be easier than eavesdropping on these conversations and communications by complying with the law -- i.e., by going to a FISA court and obtaining a warrant. And nobody opposes that. The "argument" being made assumes that the Government can't engage in surveillance on terrorist communications unless it breaks the law. What person with a working brain is incapable of understanding how self-evidently false that premise is?

One last thing: demanding that the Bush administration obtain warrants before eavesdropping on Americans isn't about "protecting civil liberties." It's about sharing the desire of the Founders that we not live under the rule of a King who has the power to break the law. Eavesdropping without warrants isn't wrong because it "violates civil liberties." It's wrong because since 1978, it's illegal to do so; it's a criminal offense. And the reason Americans required warrants isn't to "protect civil liberties." It's because administrations of both political parties abused the eavesdropping power for four decades when they could eavesdrop in secret, and so Americans decided -- by enacting what we call "a law" -- that we only trust the Government to eavesdrop on us with judicial oversight.

As empty as it is, what these Bush followers are really arguing is that the existence of terrorists proves that the Government should have the right to break the law in order to stop them. Who could even respond to that sort of dribble? It's exactly the same as this argument:

Hey, guess what? I just saw on my TV that they caught the guy who has been murdering people by searching his house and finding evidence connecting him to the crime! Where are all of those people who keep droning on about how the police shouldn't be able to enter our homes without warrants because of our "civil liberties"? Why are they so quiet, hmmmmm? Doesn't this prove once and for all that all of that warrant stuff doesn't matter when lives are at stake. I guess searches of homes is an effective crime-fighting tool after all!

Only Friends of Criminals would try to stop the police from searching people's houses without warrants. There are criminals out there who want to kill us!!!!!! Who could care about all that "warrant" and "civil liberty" crap, when lives are at stake? Those pro-warrant people sure are quiet today!!!!

It's genuinely amazing that someone could make that kind of an "argument" without being horribly embarrassed, let alone make it with some sort of euphoria, apparently believing they are making some sort of really potent, difficult-to-answer point.

Didn't we all learn this point early on in school: there are criminals in the world, and allowing the police to break down our doors without warrants would help criminals be caught. Despite that fact, we don't allow the police to break down our doors without warrants, because the police can catch criminals by searching homes only when they have warrants, a process enshrined in the Constitution in order to avoid the inevitable abuse that comes from allowing the Government to search our homes without any oversight. Thus, people (such as the Founders) who favor the warrant requirement before the police can search our homes aren't pro-criminal. They know that criminals can be caught while preventing government abuse and lawlessness. Why is it so hard -- for some people -- to apply that same, quite basic reasoning to eavesdropping and all other forms of surveillance?

UPDATE: FDL is hosting a book club discussion this afternoon, at 5:00 EST, of How Would a Patriot Act? I will be there to participate and encourage anyone who has read to book to do so, too. Also, the first event on my book tour is this Tuesday, June 6, at the University of Florida at 4:00 p.m. EST. It's a public event and will be held at the Civil Media Center. Information is here. The San Francisco events will be from June 7-June 9 and I will post the specifics a little later today.

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