Monday, February 19, 2007

Setting Kookery in Stone

Imagine, if you would, that the religious kooks got their way and passed a law banning the teaching of evolution in schools.

Imagine now having an enlightened Democratic president who is reluctant to enforce the anti-evolution law since he thinks it will diminish the value of education.

The religious kooks then call for an impeachment.

The religious kooks who wrote the anti-evolution bill might think their bill was the best law ever passed. They may even think it was passed by direct revelation from God!

When you get down into the nitty gritty politics of impeachment, however, you would find the people who think that the evolution ban was a bad idea, would not support the impeachment.

This wrangling between legislature and administration is pretty much what you expect in a democratic republic. For that matter, I suspect the founders would expect push back as being par for the course, and would not consider such things an impeachable offense.

I hate that Bush has chosen to push back on FISA. I hate Bushisms, I hate how Bush appears to avoid engagement in debates with people (except, of course, on Fox and CSPAN).

As much as I hate all of that, the FISA court thang is one of the reindeer games they play in Washington. We may hate reindeer games, but it's not quite impeachment fodder. Examine the logic of the FISA system, it is pretty much equivalent to a pro science administrator pushing back against anti-evolution legislation.

Many people see the FISA as passed in 1978 as a recipe for disaster. Yes, I agree that it is wise to have third party oversight of intelligence. The problem is that we have a court trying to impose the requirements for criminal investigation on foreign intelligence. It doesn't work because foreign intelligence is different from criminal investigation.

Looking at this from a different angle: Should the same methodology applying to criminal investigations be used for health inspections? Should the health inspector have to prove probable cause to get a warrant to inspect a restaurant? Or should health inspections be routine?

What a food handler does in the bathroom is their own business ... except when it comes to washing their hands.

Should health inspectors have probable cause that a bird has the flu before testing a chicken coop for bird flu? I think not. In my opinion, a good health inspection system has a great deal of random sampling. There should be a body of laws with ample protection for the rights of restaurants, farms and what not. That layer of protection shouldn't be at the issue of warrants for health inspection.

A jurist cannot derive from the aether the proper number of health inspections needed to optimize public safety.

Anyway, Conservatives look at the FISA thing as a bad law that will diminish public safety. Impeaching a president for failing to enforce a law that many believe will adversely affect public safety would fly as well as impeaching a president because he allows the teaching of science despite in a world with anti-evolution laws.

I think 3rd party oversight of foreign intelligence is a great idea. The first generation of FISA is buggy and danger. I hate that Bush is playing reindeer games rather than trying to fix the problem. Regardless, the FISA issue falls short of impeachment fodder as the law itself is in dispute.

6 comments:

sims said...

There is no dispute about the law. Congress passed it in 1978. It has been upheld judicially for decades. The only dispute is why the president has admitted to commotting a felony and still not been indicted.

y-intercept said...

This is the first war that we've had that has lasted longer than a year since passing FISA. The FISA court was a non-issue in Desert Storm since it did not last a full year. So, the current war is the first time FISA has been tested.

The people who hate Bush will see it as a reason to impeach. Those that do not will see FISA as something that failed its first test.

The Maginot line worked great for about 9 years. The New Orlean's levy system was often touted as a wonderful feat of engineering for about 50 years. The fact that the systems seemed to work when they were not in use is nonsense. Both of these great systems failed the critical test.

Democracy Lover said...

The point however, is that Bush did not test the FISA court and determine that it did not work adequately to protect us from terrorists. He circumvented the act intentionally, then when a suit finally made it through the courts to a point where it could challenge his assertion of executive authority, he suddenly switched and decided that he could work within the FISA law after all.

We are not talking about dirty restaurant kitchens here, we are talking about every citizens right to privacy and securing their own home from unreasonable search and seizure. That is such a fundamental right that it should not be abridged.

Lastly, I should point out that spying on American citizens without a warrant is only one of several charges that could be made against Bush and Cheney that are each more serious that the grounds used to impeach either Clinton or Andrew Johnson.

y-intercept said...

"we are talking about every citizens right to privacy and securing their own home from unreasonable search and seizure."

Wow, you must have a really big home if foreign surveillance policy affects the communications taking place within your home. Your home would like have to stretch from New York to Libya. It would have to span continents!

Dude, your hitting bill must be harsh.

Keeping things in perspective, (at least for us plebeians whose homes are contained on one continent), health safety policies have a greater affect on our lives than foreign surveillance policy.

Restaurateurs are people who deserve their privacy. A health inspection is a greater intrusion on an American citizen than a snoop checking monitoring communications in Baghdad.

The really funny thing is that FISA debate isn't even about the intrusiveness of surveillance. A secret court issuing warrants can be every bit as intrusive as an executive. The Spanish Inquisition, Salem Witch Trials, and many historical atrocities involved courts run amok.

FISA is about an absurdity of trying to place the rules for criminal investigations on foreign surveillance. It is an absurdity because foreign agents aren't criminals. They are patriots for the other side. In most cases the surveillance is not done for criminal trials but for public safety.

The issue is driven to a crescendo because the left wing propagandist know it is an issue that can widen divisions in society. Democrats, as you are probably aware, are a very gullible lot who think foolish things like your statement that foreign surveillance policy is about communications in your home.

I’ve said about over a dozen times that I think Bush and his neocons are idiots. They should have tried to fix FISA. Instead they float off on some never-never land disputation about executive authority.

Quite frankly I think we are worse off public-safety-wise and privacy-wise with a court charged with a logical absurdity than we were with a foreign surveillance system run under an executive.

The primary concern (perhaps it should be the only concern) of foreign surveillance is public safety. You want to find out what foreign actors are doing in the United States. You want to identify threats and prevent attacks, etc.. This type of stuff is not a criminal investigation. A foreign agent who is caught should be sent home and declare a persona non grata. It seems to me that the best way to engage in this type of surveillance is to learn about all the different streams of data coming into the US, and to see if anything is attached to the data. The FISA court destroys the ability to engage in this type of discovery.

You mentioned that the FISA court is liberal in doling out warrants. They are not liberal enough to allow the type of discovery needed to find communications that foreign agents have attached to normal communications.

The FISA court will want to prove that it is not a hindrance to providing public safety; so they will dole out warrants right and left. Quite frankly, it seems to me that a snoop with a warrant is far worse than one that is simply engaged in discovery. The warrants allow the snoops to act on the data that they gathered.

I am in favor of third party oversight of foreign intelligence. Modeling the oversight on the criminal justice system doesn’t work because the aims are different. Foreign operatives aren’t criminals. The goal of the program is prevention and not conviction.

Since the goal of foreign surveillance is different from domestic criminal investigation is different, the oversight should be different. The goal of the court shouldn’t be to regulate discovery though warrants. It should be to prevent the abuse of collected data.

I wish that Bush took the effort to fix the court. I do have sympathy for the games he played trying to make the court obsolete. I think he hurt himself and his party by playing these reindeer games. He made himself wide open to propaganda.

Unfortunately, this system of push and push back seems to be the way that people in Washington communicate. It is regretable, but not impeachable.

Democracy Lover said...

You appear to be taking the Bush administration's word that they are only using eavesdropping on calls that are suspected to be related to international terrorism. I simply don't find them credible on that topic or any other. That's exactly the point of having the FISA court - to insure that the government is using those techniques against foreign intelligence targets, not doing a fishing expedition to find info on innocent citizens.

My right to have private international phone conversations should not be abridged because there might be someone somewhere who is making a call to a terrorist. If the government has some thin, flimsy rationale to think I might be in contact with a terrorist group, the FISA court will willingly grant them a subpoena and they can even tap my phone and get the subpoena after the fact under FISA.

If there is one thing we should have learned over the last 50 years of American political life, it is that our government cannot be trusted. Washington is not run by dedicated, ethical people who value our Constitution and our rights under it more than their partisan political goals. Let's not pretend it is.

Frankly until our government is willing to be open about what actually happened on 9/11, what actually happened in the lead up to the Iraq War, and why we are the prime target of international terrorists, then I'm unwilling to give them an inch on this one. Don't lie to me over and over then ask me to trust you this one time - I'm not that stupid.

y-intercept said...

I agree that government can't be trusted. Just about every post I made on this issue says I wish that we had third party oversight.

However, it appears to me that the first generation of FISA was broken and dangerous. Bush has a crazy neocon ideology that says broken things should stay broken. Bush wasted political capital on this silly stand (just as Clinton squandered political capital on the gays in the military debacle).

Bush would have done better to try to fix the problem (it is possible that the Democrats in Congress were preventing a fix). Regardless the issue cost Bush a great deal of capital; However, this type of political wrangling falls short of impeachment fodder.

BTW, I believe that a large number of groups (corporate, foreign governments, etc..) are snooping on communications around the world. I am positive that there are massive companies developing massive data warehouses of click stream, CDR and other data for the express purpose of finding ways to manipulate people. I know this first hand having written such programs.

Notice that this page has both a Google Ad and a Clustrmap. That is two groups of snoopers. I appreciate groups working to maintain freedom. I just don't count the "impeach Bush over FISA" group among them. I would include a "Design FISA so it Works" groups among the people affectively working for freedom.