Monday, July 21, 2008

My last word on spying

My research has confirmed my instincts. The surveillance debate really is more about politics than it is about the state of the law and the Constitution. From everything I've read, here are some of the key points on how the FISA law seems to work in regards to surveillance.

1- The government may target any foreign individual located outside the United States for surveillance purposes.

2- The mechanisms for such surveillance can be broad and may encompass any number of communications to foreign soil.

3- The new law does not require a warrant for communications occurring outside the United States that just happen to be routed through an American network. Similarly, no warrant is required for the foreign surveillance mentioned above.

4- The intelligence community may keep databases of this entire broad range of foreign surveillance. There is no mechanism to ensure that records of communications potentially protected by the 4th Amendment will be deleted.

Critics of the government spy program seem to forget how and why our government spies in the first place. The whole point of a spying program is to obtain foreign secrets in order to better protect our own country and that is best done in secret. No one really thinks that our military intelligence community needs to go and get a warrant from a judge before they bug Osama bin Laden's new cave. It's just a preposterous notion. We give our intelligence community a free reign because we're talking about foreigners in foreign countries, not individuals protected by the U.S. Constitution.

Those joining the ACLU's brief fear that this spying program will discourage foreign sources from coming forward and telling their American media sounding boards about our government's activities outside our borders. To them I say, "well duhh." Osama bin Laden could be your foreign source, but we don't require a warrant for the government to listen in on his conversation with you.

To those wondering, I use bin Laden not to feed people's fears, but to make a point. Either the government has the power to conduct foreign surveillance without oversight or all foreign surveillance requires oversight. Making the point that your foreign political dissident friends are not terrorists doesn't relieve you of actually needing a specific plan for a system that treats different foreign citizen differently in the eyes of our own courts.

Does the law permit any number of non-dangerous individuals to be spied upon? Certainly. As we've discussed, any foreigner is a legitimate target of surveillance. So, your communications with foreigners in foreign countries may well be intercepted by the government. Additionally, it's also possible that communications with Americans overseas may fall under the large permissible surveillance umbrella.

But there is after-the-fact oversight. The government must show it's target is a foreign individual believed to be in a foreign country. And more importantly, there's my years old point that the real issue of government spying is what the government does with the information they obtain. Forgetting about the spooks in the CIA and NSA, I'm fairly confident that thousands (maybe more?) of Americans are being monitored in violation of the 4th Amendment. We literally spy on each other, so it'd be foolish to think the government doesn't do the same. The real test of freedom comes not from the watchful eye of big brother but from his long arm- what is done with illegally and unconstitutionally obtained information?

From the facts I've laid clear above, it seems fairly clear that the nature of our spying is limited. My concern with surveillance is much more with the multiple layers of incompetence that led to 9-11 and Iraq, not with the government's listening in on my phone calls. There's not a shred of evidence that the government has used potentially unconstitutional evidence obtained from spying againast an American citizen. And the thing is, there would be if it existed- when the government prosecutes anyone, they have to authenticate their evidence and explain where it came from- they can't just say, "this is true and we did this legally, take our word for it." So as I said, if someone was prosecuted using evidence obtained from potentially unconstitutional surveillance, we'd know about it. Until that day ladies and gentlemen ... case closed.

3 Comments:

Anonymous rose said...

Heres the article I had attemped to post.

Carbon Chastity
By: Charles Krauthammer

I'm not a global warming believer. I'm not a global warming denier. I'm a global warming agnostic who believes instinctively that it can't be very good to pump lots of CO2into the atmosphere but is equally convinced that those who presume to know exactly where that leads are talking through their hats.

Predictions of catastrophe depend on models. Models depend on assumptions about complex planetary systems -- from ocean currents to cloud formation -- that no one fully understands. Which is why the models are inherently flawed and forever changing. The doomsday scenarios posit a cascade of events, each with a certain probability. The multiple improbability of their simultaneous occurrence renders all such predictions entirely speculative.

Yet on the basis of this speculation, environmental activists, attended by compliant scientists and opportunistic politicians, are advocating radical economic and social regulation. "The largest threat to freedom, democracy, the market economy and prosperity," warns Czech President Vaclav Klaus, "is no longer socialism. It is, instead, the ambitious, arrogant, unscrupulous ideology of environmentalism."


If you doubt the arrogance, you haven't seen that Newsweek cover story that declared the global warming debate over. Consider: If Newton's laws of motion could, after 200 years of unfailing experimental and experiential confirmation, be overthrown, it requires religious fervor to believe that global warming -- infinitely more untested, complex and speculative -- is a closed issue.

But declaring it closed has its rewards. It not only dismisses skeptics as the running dogs of reaction, i.e., of Exxon, Cheney and now Klaus. By fiat, it also hugely re-empowers the intellectual left.

For a century, an ambitious, arrogant, unscrupulous knowledge class -- social planners, scientists, intellectuals, experts and their left-wing political allies -- arrogated to themselves the right to rule either in the name of the oppressed working class (communism) or, in its more benign form, by virtue of their superior expertise in achieving the highest social progress by means of state planning (socialism).

Two decades ago, however, socialism and communism died rudely, then were buried forever by the empirical demonstration of the superiority of market capitalism everywhere from Thatcher's England to Deng's China, where just the partial abolition of socialism lifted more people out of poverty more rapidly than ever in human history.

Just as the ash heap of history beckoned, the intellectual left was handed the ultimate salvation: environmentalism. Now the experts will regulate your life not in the name of the proletariat or Fabian socialism but -- even better -- in the name of Earth itself.

Environmentalists are Gaia's priests, instructing us in her proper service and casting out those who refuse to genuflect. (See Newsweek above.) And having proclaimed the ultimate commandment -- carbon chastity -- they are preparing the supporting canonical legislation that will tell you how much you can travel, what kind of light you will read by, and at what temperature you may set your bedroom thermostat.

Only Monday, a British parliamentary committee proposed that every citizen be required to carry a carbon card that must be presented, under penalty of law, when buying gasoline, taking an airplane or using electricity. The card contains your yearly carbon ration to be drawn down with every purchase, every trip, every swipe.

There's no greater social power than the power to ration. And, other than rationing food, there is no greater instrument of social control than rationing energy, the currency of just about everything one does and uses in an advanced society.

So what does the global warming agnostic propose as an alternative? First, more research -- untainted and reliable -- to determine (a) whether the carbon footprint of man is or is not lost among the massive natural forces (from sunspot activity to ocean currents) that affect climate, and (b) if the human effect is indeed significant, whether the planetary climate system has the homeostatic mechanisms (like the feedback loops in the human body, for example) with which to compensate.

Second, reduce our carbon footprint in the interim by doing the doable, rather than the economically ruinous and socially destructive. The most obvious step is a major move to nuclear power, which to the atmosphere is the cleanest of the clean.

But your would-be masters have foreseen this contingency. The Church of the Environment promulgates secondary dogmas as well. One of these is a strict nuclear taboo.

Rather convenient, is it not? Take this major coal-substituting fix off the table, and we will be rationing all the more. Guess who does the rationing.

9:55 AM  
Blogger lonely libertarian said...

Good piece.

The biggest problem with the global warming/climate change crowd is the fervor of their beliefs. Science is based on the notion of continuing to ask questions, seek out evidence, and better understand the world around us, but the global warming crowd seems stuck on the same tired routine.

Just look at the reaction to those who question the apocalyptic narrative- they're smeared as apologists for big oil and dastardly corporations. Even libertarian writers such as John Tierney of the New York Times and Ron Bailey at Reason continue to be attacked, even though they've made it explicitly clear they see global warming as a not-so-distant-threat. Why are they attacked? Because they favor market-based solutions, rather than a top down government-based approach.


And now, for your South Park moment .....
"We didn't listen!!!"

11:17 AM  
Anonymous rose said...

are you familiar w/ krauthammer? i think you'd enjoy his writings.

12:18 PM  

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