Wiretapping In The News
Just in this afternoon, Federal judge orders end to warrantless wiretapping.
I'm sure everyone will be talking about it. Just do me a favor. If you're one of those people who wants to make a big deal out of this (either as vindication for beliefs about the wrong doings of the Bush administration, or as I heard Rush Limbaugh earlier, as an indictment of "liberal, Stalinist judges") go and read the opinion- or at the very least read from someone who actually read and understood the opinion.
For my money I'd read Eugene Volokh, here, here, and here. The consensus at the Volokh Conspiracy seems to be the same as it was back in the spring when the program first became publicized: The program likely violates existing law, but has no real Constitutional problems.
The opinion released today by Judge Anna Diggs Taylor held that the program was both illegal and unconstitutional.
I have no real desire to read the opinion, just as I had no real desire to read the Supreme Court's "War and Peace"-length dissertation in the Hamden case earlier in the summer. Why? Because the real issues here are not what they're made out to be. In reality, the result of all of these of war on terror court decisions is going to be the outlining by the political branches of real rules on how the war on terror is to be conducted.
It's quite a stretch to say wiretapping enemy agents from foreign countries requires a warrant, just as it's a stretch to say terrorists captured in Afghanistan or Iraq are entitled to the same rights as criminal defendants in the United States. Has the Bush Administration violated the law? In all likelihood, yes they have, given that the laws under which they were working were not designed with terrorism in mind. I've always said that given the fact that the Bush Administration has been flying by the seat of their pants for the past five years, they've done a half-decent job. But the fact is that we don't have specific rules about the morally proper way for fighting the war on terror, which is precisely the argument I've been making here for the past year or so. And finally, someone (the courts) are getting the ball rolling.
Updated 8/18/06 @ 9:15 AM :It's quite a stretch to say wiretapping enemy agents from foreign countries requires a warrant, just as it's a stretch to say terrorists captured in Afghanistan or Iraq are entitled to the same rights as criminal defendants in the United States.
Let me also articulate the other side. It's also quite a stretch to give any administration carte blanche in detaining American citizens without trials based on terrorism suspicions, and it would be even more of a stretch to allow all domestic wiretapping in the name of the war on terror. It just occurred to me, as I read more about the story this morning, that most of the reactions from both sides of the debate are simply reactions, not solutions. Liberals jump on any decision against Bush, and conservatives are quick to defend any action taken against terrorism.
The problem with the debate over terrorism is that both sides use such broad language to defend their positions. The same rules need not to apply to every situation in the war on terror. An American citizen can be treated differently than a foreign citizen captured on the battlefield. What we should be talking about is where to draw lines, and how captured terrorists should be treated. If terrorists are not POWS's, and not criminals, then we need to explicitly define their rights in the same way we've defined rights for POW's and criminals- Again, they need not be the same. But the point is, this is work that needs to be done, and these sorts of court decisions don't do anything but make this fact all the more obvious.
I'm sure everyone will be talking about it. Just do me a favor. If you're one of those people who wants to make a big deal out of this (either as vindication for beliefs about the wrong doings of the Bush administration, or as I heard Rush Limbaugh earlier, as an indictment of "liberal, Stalinist judges") go and read the opinion- or at the very least read from someone who actually read and understood the opinion.
For my money I'd read Eugene Volokh, here, here, and here. The consensus at the Volokh Conspiracy seems to be the same as it was back in the spring when the program first became publicized: The program likely violates existing law, but has no real Constitutional problems.
The opinion released today by Judge Anna Diggs Taylor held that the program was both illegal and unconstitutional.
I have no real desire to read the opinion, just as I had no real desire to read the Supreme Court's "War and Peace"-length dissertation in the Hamden case earlier in the summer. Why? Because the real issues here are not what they're made out to be. In reality, the result of all of these of war on terror court decisions is going to be the outlining by the political branches of real rules on how the war on terror is to be conducted.
It's quite a stretch to say wiretapping enemy agents from foreign countries requires a warrant, just as it's a stretch to say terrorists captured in Afghanistan or Iraq are entitled to the same rights as criminal defendants in the United States. Has the Bush Administration violated the law? In all likelihood, yes they have, given that the laws under which they were working were not designed with terrorism in mind. I've always said that given the fact that the Bush Administration has been flying by the seat of their pants for the past five years, they've done a half-decent job. But the fact is that we don't have specific rules about the morally proper way for fighting the war on terror, which is precisely the argument I've been making here for the past year or so. And finally, someone (the courts) are getting the ball rolling.
Updated 8/18/06 @ 9:15 AM :It's quite a stretch to say wiretapping enemy agents from foreign countries requires a warrant, just as it's a stretch to say terrorists captured in Afghanistan or Iraq are entitled to the same rights as criminal defendants in the United States.
Let me also articulate the other side. It's also quite a stretch to give any administration carte blanche in detaining American citizens without trials based on terrorism suspicions, and it would be even more of a stretch to allow all domestic wiretapping in the name of the war on terror. It just occurred to me, as I read more about the story this morning, that most of the reactions from both sides of the debate are simply reactions, not solutions. Liberals jump on any decision against Bush, and conservatives are quick to defend any action taken against terrorism.
The problem with the debate over terrorism is that both sides use such broad language to defend their positions. The same rules need not to apply to every situation in the war on terror. An American citizen can be treated differently than a foreign citizen captured on the battlefield. What we should be talking about is where to draw lines, and how captured terrorists should be treated. If terrorists are not POWS's, and not criminals, then we need to explicitly define their rights in the same way we've defined rights for POW's and criminals- Again, they need not be the same. But the point is, this is work that needs to be done, and these sorts of court decisions don't do anything but make this fact all the more obvious.
posted by lonely libertarian at 3:25 PM
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