Monday, January 22, 2007

Not so fast Alberto!

Remember last week, boys and girls, when Attorney General Gonzales announced that warrantless surveillance will now be conducted subject to the approval of the FISA Court? Spot wants to discuss the Administration's actions, but let's have a little parable first.

This is the story of the dissembling teenager and the parent.

The teen sneaks into the house in the wee hours of the morning, walking on tiptoes in the dark. He is frozen in his tracks when he hears his father's voice cutting through the void, "I suppose you know what time it is." (There is no question mark there because it's an accusation, not a question.)

"Oh, gosh no, Dad. I didn't think it was late."

"Then why did you try to sneak into the house?"

"I guess I knew it might be a little late, but I was just hanging out at George's house, and we lost track of the time."

"I called George's father an hour ago. You weren't there. George's folks thought the two of you were over here."

"Oh, well, I guess we went over to Dick's house then."

"Really? Well, I'll just call Dick's father in the morning, or rather later this morning. If you weren't there, you're in some trouble mister, for busting curfew and for lying about it."

"Uh, Dad? We didn't go to Dick's house. We just horsed around at the park."

"That must where you got that sack of popcorn with 'Orpheum Theater' printed on it."

The teen looks down at the sack in his hands.

"What movie did you see?" asks the father.

"Oh just some adventure flick."

"That isn't really the kind of stuff they show at the Orpheum, is it?"

The kid knows now that he is utterly and irrevocably screwed. He decides the only thing left is to throw himself on the mercy of the court. "No, I guess not. I'm sorry Dad."

"You know, you probably could have saved yourself some trouble if you had been straight with me from the beginning," says Dad.

"Grounded for a week, right Dad?"

"Two week for compounding the felony by lying about it," comes the reply.

Did you notice how the teen kept offering up explanations for his behavior, and it was only because of the persistence of the father that the truth was finally revealed? Persistence is what is required of the Congress now, boys and girls, because we have not arrived anywhere near the truth in the case of warantless surveillance.

Were you the boy in the story, Spotty?

I will forgive the impertinence this once, grasshopper.

I'm sorry Spotty.

We need not talk of it again. Now where were we? Oh, yes.

When the warrantless wiretapping program was revealed--or rather leaked--it was like the boy who had just been caught in the dark by his father. His first impulse, as well as the second, third, and fourth, was to prevaricate.

It is, alas, the same with little Alberto. It will be necessary to strip away the layers of deception until we arrive at the unvarnished truth. It is pretty clear that the Administration has no intention of abandoning its warrantless surveillance program. In an article at, Aziz Huq wrote this:
At first it was hailed as a victory for civil liberties. But last week’s announcement that warrantless domestic surveillance by the National Security Agency has come to an end means less than it first appears.

Until now, the NSA has been engaged in electronic spying on Americans’ communications without warrants. On Wednesday, Attorney General Alberto Gonzalez announced that all such warrantless surveillance “will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court,” or FISA court.

Hardly a respite from the wars around the separation of powers, it is better seen as a tactical redeployment by the administration. By momentarily retreating, the administration reveals the continuing breadth of its reckless ambition. Indeed, expect to see new claims of unchecked executive power from your neighborhood Department of Justice soon!

Because the work of the FISA court is secret, and only the government may appear and be heard, it’s impossible to know exactly what kind of judicial approval the government has secured. In a briefing on the new development, a Justice Department attorney said that a warrant did not approve the whole program, but rather took advantage of unnamed “developments in the law.” The result is a “hybrid” of individual and program-wide warrants.

The lawyers in the room will recognize that a "program-wide warrant" would not exactly meet the case and controversy requirement of American jurisprudence. For the non-lawyers (a curious and not altogether un-pejorative term, Spotty admits), it is important that you know that courts in the United States do not just cruise around announcing advisory opinions. You could ask Dean Johnson about that.

The potential for the abuse of a "program-wide warrant" should be self-evident.
If the Administration got a FISA judge to bless entire categories of surveillance ahead of time, well, that would be an enormous case of judicial activism. Not to mention the abdication of the judiciary's role to protect citizens from the excesses of their government. It has a kind of Star Chamber quality to it: decisions from which there is no appeal.

Congress must press the Administration on this.

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