Friday, January 06, 2006

Spotting the lie...

When the Bush administration started spying on US citizens without a warrant, an issue was raised in another discussion forum I frequent. "The problem," one person insisted, "is that FISA has not kept pace with technology".

Now, that's a ridiculous statement on its face. However, that this issue was brought up means that there was a lie behind it.

This is a common tactic of a politician in trouble. Tell lies about what the issue "really" is. If enough people think it's stupid, there won't be any political will to investigate. The matter can be swept under the rug.

So what was the lie?

Well, just to review, the issue was not about technology. The issue is the lack of a warrant. Further, if the issue was one that could be addressed legislatively (i.e., if FISA hadn't kept up with technology), then Congress should change the legislation.

It's important to understand that warrants protect people in a variety of ways. They provide oversight, and help prevent the chasing of false leads. They prevent prosecutors from going on fishing expeditions for malicious prosecution, and they prevent corrupt government officials from ordering surveillance for personal, political, or other gain.

Let Bush listen in all he wants... with a properly obtained warrant. If he can't obtain the warrant for domestic surveillance, well, he's not supposed to be listening. He's sworn to uphold the Constitution.

There were multiple lies told to defend this. The first lie that's told is that people are complaining about the program itself. Of course, everyone wants the NSA to be able to scan for information, in accordance with the law. That means obtaining a warrant for domestic surveillance.

The second lie is the more subtle one, and that's the one I already mentioned: that FISA hasn't kept up with technology.

Is there a factual basis for this? Well, yes... but it's still a lie. If a call from, say Afghanistan to Iraq goes through a switch on US soil (or in a US controlled territory) is that domestic or foreign surveillance? The surveillance is occurring in a place controlled by the US, but it's regarding an entirely foreign event. FISA separates out domestic and foreign surveillance. In this particular instance, FISA is not current with technology. It's not clear whether this is domestic or foreign surveillance.

That is an issue that should be addressed. And, if the only issue was that Bush said he was scanning calls that originated and terminated in foreign countries, and felt they were "foreign surveillance", he'd be okay. I grant that he might be guilty on a technicality of violating "domestic surveillance" rules by scanning a switch owned by a US corporation, on US controlled land, but I'm not concerned about that kind of technicality.

The real issue is that he's admitted he is ordering tracking of calls where one party is in the US. That's domestic surveillance, no matter how you look at the technology. That is where he might have (in fact, probably did) violate the law requiring obtaining a warrant.

That's why people are complaining.

Now, I can't complain for everyone, but I can tell you what my complaints are.

I don't complain that he started the program; had he run it for a brief time before going to Congress, I could excuse that, in the post 9/11 emergency. He's continued it for four years.

I might not complain if he'd started the program while lobbying to change the law; again, emergency actions can be excused to some degree. He hasn't asked for a change in the law, and has no intention of doing so.

I certainly wouldn't complain at all if he were going to the FISA court for warrants... but he refuses to do so, even though the FISA court is generous with granting warrants.

My complaint is that the President, who is charged with upholding the law, and the Constitution, has been violating the law. Further, we can only assume that he knows that Congress would not approve (because otherwise he could have asked for changes to the law) and that the courts would declare his actions illegal (or he would have obtained warrants from the FISA court).

My complaint is that the President went outside the law under the cloak of secrecy. Good intentions or not, he was blazing a trail that could be illegal, harmful to US interests (terrorisms suspects are already challenging evidence claiming it was obtained illegally), and opens the door to abuse.

That's a complaint that has merit. That is a complaint that should be addressed.

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