Wiretaps, redux

This is hardly relevant anymore, but I figured I'd post it for the record.

A few times over the last year, JJ and I discussed the warrantless wiretap program. He's all for it. I have never come away from a conversation with him less convinced of his point of view.

I'm clearly missing something fundamental. Here's Power Line Blog arguing back in December 2005 that the program is clearly legal, citing court decisions affirming the President's authority to gather foreign intelligence without having to bother with warrants. Here's the Wall Street Journal doing the same thing.

(Now to begin with, I'm more suspicious of executive power than those courts—I'm even suspicious of the FISC, if it comes to that—but let's set that aside.)

My question is, is this executive power completely without limits? Do American citizens have no rights during wartime? Of course not. There's a line somewhere; the question is where. The pro-snooping blogosphere seems to miss this entirely. Certainly they ignore the Times's allegation that some of the snoopees are American citizens.

The entire Journal op-ed focuses on foreign surveillance. It even goes so far as to attempt this reductio ad absurdum:

The leakers of this sensitive national security activity and their Capitol Hill supporters seem determined to guarantee al Qaeda a secure communications channel into this country so long as they remember to include one sympathetic permanent resident alien not previously identified by NSA or the FBI as a foreign agent on their distribution list.

This simply isn't relevant to the surveillance activity actually described in the original Times article, in which names of American citizens (among others) are put on a list of people whose phone conversations and e-mails are secretly monitored. In other words, American citizens were the target of warrantless snooping.

I've noticed that it's really hard to even talk about this with someone. I think that might be because the question has so many logically incompatible lines of scrimmage.

• The program is either Constitutional or not;
• It's either foreign intelligence gathering or it's domestic;
• It's either legal under FISA or not, or FISA doesn't apply;
• FISA generally either makes sense, or it ties the President's hands in a potentially disastrous way;
• Regardless of the particular legal question, the President generally either should or shouldn't exercise absolute power to conduct a war;

...and so on. Now, if you think the program flunks the first test, as I do, then most of the other questions just don't matter—in your nice, little, internally consistent political universe. It's really easy to end up arguing at cross purposes, though. And if you should manage to carry one point, the other guy always thinks he has three or four fallback positions.

I suspect that all of these questions but one are decidable, by any reasonable reading of the law; the sticking point is whether Congress has the authority to constrain the President's ability to conduct war as he sees fit.

But generally I didn't think much of the arguments I was hearing on any level. The President has the authority to take extreme measures in time of war, I'm told: look at the Japanese internment camps in World War II. (But isn't that a strong argument against such unlimited executive power? Is "there have been worse abuses in the past" really the President's best argument?) The three-days retroactive warrant provision in FISA is insufficient because it takes longer than three days to file a case. (I have no idea if this is true or not, but it's awfully hard to see the NSA program as a good-faith response to this difficulty.) The program was not actually secret, because some members of Congress was briefed. (And yet there should be an investigation into who leaked the program, and charges brought? Either it was secret or it wasn't.) As a practical matter, a war can only be fought by a dictator. (Really?)

In any case, it's water under the bridge now.