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December 21, 2005

The Security Threat of Unchecked Presidential Power

This past Thursday, the New York Times exposed the most significant violation of federal surveillance law in the post-Watergate era. President Bush secretly authorized the National Security Agency to engage in domestic spying, wiretapping thousands of Americans and bypassing the legal procedures regulating this activity.

This isn't about the spying, although that's a major issue in itself. This is about the Fourth Amendment protections against illegal search. This is about circumventing a teeny tiny check by the judicial branch, placed there by the legislative branch, placed there 27 years ago -- on the last occasion that the executive branch abused its power so broadly.

In defending this secret spying on Americans, Bush said that he relied on his constitutional powers (Article 2) and the joint resolution passed by Congress after 9/11 that led to the war in Iraq. This rationale was spelled out in a memo written by John Yoo, a White House attorney, less than two weeks after the attacks of 9/11. It's a dense read and a terrifying piece of legal contortionism, but it basically says that the president has unlimited powers to fight terrorism. He can spy on anyone, arrest anyone, and kidnap anyone and ship him to another country ... merely on the suspicion that he might be a terrorist. And according to the memo, this power lasts until there is no more terrorism in the world.

Yoo starts by arguing that the Constitution gives the president total power during wartime. He also notes that Congress has recently been quiescent when the president takes some military action on his own, citing President Clinton's 1998 strike against Sudan and Afghanistan.

Yoo then says: "The terrorist incidents of September 11, 2001, were surely far graver a threat to the national security of the United States than the 1998 attacks. ... The President's power to respond militarily to the later attacks must be correspondingly broader."

This is novel reasoning. It's as if the police would have greater powers when investigating a murder than a burglary.

More to the point, the congressional resolution of Sept. 14, 2001, specifically refused the White House's initial attempt to seek authority to preempt any future acts of terrorism, and narrowly gave Bush permission to go after those responsible for the attacks on the Pentagon and World Trade Center.

Yoo's memo ignored this. Written 11 days after Congress refused to grant the president wide-ranging powers, it admitted that "the Joint Resolution is somewhat narrower than the President's constitutional authority," but argued "the President's broad constitutional power to use military force ... would allow the President to ... [take] whatever actions he deems appropriate ... to pre-empt or respond to terrorist threats from new quarters."

Even if Congress specifically says no.

The result is that the president's wartime powers, with its armies, battles, victories, and congressional declarations, now extend to the rhetorical "War on Terror": a war with no fronts, no boundaries, no opposing army, and -- most ominously -- no knowable "victory." Investigations, arrests, and trials are not tools of war. But according to the Yoo memo, the president can define war however he chooses, and remain "at war" for as long as he chooses.

This is indefinite dictatorial power. And I don't use that term lightly; the very definition of a dictatorship is a system that puts a ruler above the law. In the weeks after 9/11, while America and the world were grieving, Bush built a legal rationale for a dictatorship. Then he immediately started using it to avoid the law.

This is, fundamentally, why this issue crossed political lines in Congress. If the president can ignore laws regulating surveillance and wiretapping, why is Congress bothering to debate reauthorizing certain provisions of the Patriot Act? Any debate over laws is predicated on the belief that the executive branch will follow the law.

This is not a partisan issue between Democrats and Republicans; it's a president unilaterally overriding the Fourth Amendment, Congress and the Supreme Court. Unchecked presidential power has nothing to do with how much you either love or hate George W. Bush. You have to imagine this power in the hands of the person you most don't want to see as president, whether it be Dick Cheney or Hillary Rodham Clinton, Michael Moore or Ann Coulter.

Laws are what give us security against the actions of the majority and the powerful. If we discard our constitutional protections against tyranny in an attempt to protect us from terrorism, we're all less safe as a result.

This essay was published today as an op-ed in the Minneapolis Star Tribune.

Here's the opening paragraph of the Yoo memo. Remember, think of this power in the hands of your least favorite politician when you read it:

You have asked for our opinion as to the scope of the President's authority to take military action in response to the terrorist attacks on the United States on September 11, 2001. We conclude that the President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power in both the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. §§ 1541-1548 (the "WPR"), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

There's a similar reasoning in the Braybee memo, which was written in 2002 about torture:

In a series of opinions examining various legal questions arising after September 11, we have examined the scope of the President's Commander-in-Chief power. . . . Foremost among the objectives committed by the Constitution to [the President's] trust. As Hamilton explained in arguing for the Constitution's adoption, ‘because the circumstances which may affect the public safety’ are ‘not reducible within certain limits, it must be admitted, as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defense and safety of the community, in any manner essential to its efficacy.’ . . . [The Constitution’s] sweeping grant vests in the President an unenumerated Executive power . . . The Commander in Chief power and the President’s obligation to protect the Nation imply the ancillary powers necessary to their successful exercise.

NSA watcher James Bamford points out how this action was definitely considered illegal in 1978, which is why FISA was passed in the first place:

When the Foreign Intelligence Surveillance Act was created in 1978, one of the things that the Attorney General at the time, Griffin Bell, said -- he testified before the intelligence committee, and he said that the current bill recognizes no inherent power of the President to conduct electronic surveillance. He said, ‘This bill specifically states that the procedures in the bill are the exclusive means by which electronic surveillance may be conducted.’ In other words, what the President is saying is that he has these inherent powers to conduct electronic surveillance, but the whole reason for creating this act, according to the Attorney General at the time, was to prevent the President from using any inherent powers and to use exclusively this act.

Also this from Salon, discussing a 1952 precedent:

Attorney General Alberto Gonzales argues that the president's authority rests on two foundations: Congress's authorization to use military force against al-Qaida, and the Constitution's vesting of power in the president as commander-in-chief, which necessarily includes gathering “signals intelligence�? on the enemy. But that argument cannot be squared with Supreme Court precedent. In 1952, the Supreme Court considered a remarkably similar argument during the Korean War. Youngstown Sheet & Tube Co. v. Sawyer, widely considered the most important separation-of-powers case ever decided by the court, flatly rejected the president's assertion of unilateral domestic authority during wartime. President Truman had invoked the commander-in-chief clause to justify seizing most of the nation's steel mills. A nationwide strike threatened to undermine the war, Truman contended, because the mills were critical to manufacturing munitions.
The Supreme Court's rationale for rejecting Truman's claims applies with full force to Bush's policy. In what proved to be the most influential opinion in the case, Justice Robert Jackson identified three possible scenarios in which a president's actions may be challenged. Where the president acts with explicit or implicit authorization from Congress, his authority "is at its maximum," and will generally be upheld. Where Congress has been silent, the president acts in a "zone of twilight" in which legality "is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." But where the president acts in defiance of "the expressed or implied will of Congress," Justice Jackson maintained, his power is "at its lowest ebb," and his actions can be sustained only if Congress has no authority to regulate the subject at all.

In the steel seizure case, Congress had considered and rejected giving the president the authority to seize businesses in the face of threatened strikes, thereby placing President Truman's action in the third of Justice Jackson's categories. As to the war power, Justice Jackson noted, "The Constitution did not contemplate that the Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries, and its inhabitants."

Like Truman, President Bush acted in the face of contrary congressional authority. In FISA, Congress expressly addressed the subject of warrantless wiretaps during wartime, and limited them to the first 15 days after war is declared. Congress then went further and made it a crime, punishable by up to five years in jail, to conduct a wiretap without statutory authorization.

The Attorney General said that the Administration didn't try to do this legally, because they didn't think they could get the law passed. But don't worry, an NSA shift supervisor is acting in the role of a FISC judge:

GENERAL HAYDEN: FISA involves the process -- FISA involves marshaling arguments; FISA involves looping paperwork around, even in the case of emergency authorizations from the Attorney General. And beyond that, it's a little -- it's difficult for me to get into further discussions as to why this is more optimized under this process without, frankly, revealing too much about what it is we do and why and how we do it.
Q If FISA didn't work, why didn't you seek a new statute that allowed something like this legally?

ATTORNEY GENERAL GONZALES: That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

Q And who determined that these targets were al Qaeda? Did you wiretap them?

GENERAL HAYDEN: The judgment is made by the operational work force at the National Security Agency using the information available to them at the time, and the standard that they apply -- and it's a two-person standard that must be signed off by a shift supervisor, and carefully recorded as to what created the operational imperative to cover any target, but particularly with regard to those inside the United States.

Q So a shift supervisor is now making decisions that a FISA judge would normally make? I just want to make sure I understand. Is that what you're saying?

Senators from both parties are demanding hearings:

Democratic and Republican calls mounted on Tuesday for U.S. congressional hearings into President George W. Bush's assertion that he can order warrantless spying on Americans with suspected terrorist ties.
Vice President Dick Cheney predicted a backlash against critics of the administration's anti-terrorism policies. He also dismissed charges that Bush overstepped his constitutional bounds when he implemented the recently disclosed eavesdropping shortly after the September 11 attacks.

Republican Sens. Chuck Hagel of Nebraska and Olympia Snowe of Maine joined Democratic Sens. Carl Levin of Michigan, Dianne Feinstein of California and Ron Wyden of Oregon in calling for a joint investigation by the Senate Intelligence and Judiciary Committees into whether the government eavesdropped "without appropriate legal authority."

Senate Minority Leader Harry Reid, a Nevada Democrat, said he would prefer separate hearings by the Judiciary Committee, which has already promised one, and Intelligence Committee.

This New York Times paragraph is further evidence that we're talking about an Echelon-like surveillance program here:

Administration officials, speaking anonymously because of the sensitivity of the information, suggested that the speed with which the operation identified "hot numbers" - the telephone numbers of suspects - and then hooked into their conversations lay behind the need to operate outside the old law.

And some more snippets.

There are about a zillion more URLs I could list here. I posted these already, but both Oren Kerr and
Daniel Solove have good discussions of the legal issues. And here are three legal posts by Marty Lederman. A summary of the Republican arguments. Four good blog posts. Spooks comment on the issue.

And this George W. Bush quote (video and transcript), from December 18, 2000, is just too surreal not to reprint: "If this were a dictatorship, it’d be a heck of a lot easier, just so long as I’m the dictator."

I guess 9/11 made it a heck of a lot easier.

Look, I don't think 100% of the blame belongs to President Bush. (This kind of thing was also debated under Clinton.) The Congress, Democrats included, have allowed the Executive to gather power at the expense of the other two branches. This is the fundamental security issue here, and it'll be an issue regardless of who wins the White House in 2008.

EDITED TO ADD (12/21): FISC Judge James Robertson resigned yesterday:

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work.
....Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.

"They just don't know if the product of wiretaps were used for FISA warrants -- to kind of cleanse the information," said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. "What I've heard some of the judges say is they feel they've participated in a Potemkin court."

More generally, here's some of the relevant statutes and decisions:

"Foreign Intelligence Surveillance Act (FISA)" (1978).

"Authorization for Use of Military Force (2001)," the law authorizing Bush to use military force against the 9/11 terrorists.

"United States v. United States District Court," 407 U.S. 297 (1972), a national security surveillance case that turned on the Fourth Amendment.

"Hamdi v. Rumsfeld," 124 S. Ct. 981 (2004), the recent Supreme Court case examining the president's powers during wartime.

[The Government's position] cannot be mandated by any reasonable view of the separation of powers, as this view only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Steel and Tube, 343 U.S. at 587. Whatever power the United States Constitution envisions for the Executive in times of conflict with other Nations or enemy organizations, it most assuredly envisions a role for all three branches when individual liberties are at stake.

And here are a bunch of blog posts:

Daniel Solove: "Hypothetical: What If President Bush Were Correct About His Surveillance Powers?."

Seth Weinberger: "Declaring War and Executive Power."

Juliette Kayyem: "Wiretaps, AUMF and Bush's Comments Today."

Mark Schmitt: "Alito and the Wiretaps."

Eric Muller: "Lawless Like I Said."

Cass Sunstein: "Presidential Wiretap."

Spencer Overton: "Judge Damon J. Keith: No Warrantless Wiretaps of Citizens."

Will Baude: "Presidential Authority, A Lament."

And news articles:

Washington Post: "Clash Is Latest Chapter in Bush Effort to Widen Executive Power."

The clash over the secret domestic spying program is one slice of a broader struggle over the power of the presidency that has animated the Bush administration. George W. Bush and Dick Cheney came to office convinced that the authority of the presidency had eroded and have spent the past five years trying to reclaim it.
From shielding energy policy deliberations to setting up military tribunals without court involvement, Bush, with Cheney's encouragement, has taken what scholars call a more expansive view of his role than any commander in chief in decades. With few exceptions, Congress and the courts have largely stayed out of the way, deferential to the argument that a president needs free rein, especially in wartime.

New York Times: Spying Program Snared U.S. Calls."

A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.

Posted on December 21, 2005 at 06:50 AM • 279 Comments • View Blog Reactions

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Comments

"In 2002, that FISA review court upheld the president's warrantless search powers, referencing a 1980 Fourth Circuit Court of Appeals decision. That court held that "the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. ... We take for granted that the president does have that authority and, assuming that is so, FISA could not encroach on the president’s constitutional power," wrote the court."

Posted by: ARL at December 21, 2005 07:37 AM

What about the security issue that's being glossed over? The Times article revealed to the enemy that their communications are being eavesdropped on by the government.

Also it's interesting to compare and contrast this presidential overreach to those of wartime Presidents Lincoln (with his suspension of habeas corpus) and FDR (with his ethnic relocation camps). War is hell.

Posted by: Pork Soda at December 21, 2005 08:00 AM

Interesting read! _Everybody_ must be accountable to his/her country's law system.

"This is novel reasoning. It's as if the police would have greater powers when investigating a murder than a burglary."
Actually... yes they do (at least in Holland). In case of a murder, they can detain you without charges for some days and they can enter your house in order to confiscate stuff (after getting the proper legal sign-off). This is not the case with a 'simple' burglary where the suspect has to be charged or not picked up at all. The criteria are the article 67 crimes, resulting in a jail sentence of 4 years or more.

Posted by: egeltje at December 21, 2005 08:00 AM

"What about the security issue that's being glossed over? The Times article revealed to the enemy that their communications are being eavesdropped on by the government."

What about it? Is it really a good thing to hide horrendous abuse of executive power from nearly three hundred million American citizens, just in order to hide it from a few hundred or thousand loosely organized terrorists?

My answer to that is, "No, no, and hell no!"

Posted by: Michael Ash at December 21, 2005 08:12 AM

Law is clearly something you know little about. You should stick to commenting on subjects you are qualified on, such as encryption algorithms and their application to, say, enable terrorists to gain advantage.

Posted by: Paul O at December 21, 2005 08:20 AM

"Is it really a good thing to hide horrendous abuse of executive power from nearly three hundred million American citizens, just in order to hide it from a few hundred or thousand loosely organized terrorists?"

Epecially when any terrorist worth his salt would be working under the assumption that his communications were being tapped anyway, and those that aren't are probably too stupid to terrorise anyone effectively.

Posted by: Nobby Nuts at December 21, 2005 08:24 AM

"What about the security issue that's being glossed over? The Times article revealed to the enemy that their communications are being eavesdropped on by the government."

That's an idiotic argument, and even the White House seems to have dropped it.

Do you think for one minute that the enemy previously thought that they were not being eavesdropped on, and now suddenly do? That they were living in blissful ignorance until the big bad New York Times burst their bubble?

Look up all the stories about how bin Ladin was tracked using his cellphone, for starters.

Then look up all the stories about Echelon.

None of this is news. We all thought this was going on already, but we figured that that Bush was using the toothless FISA court to comply with the law. We also figured the British were spying on Americans on behalf of Americans. (Yeah, that's probably illegal, too, but we couldn't prove anything here.)

What's at issue here isn't the spying, it's the disregard for the law.

The difference here is that

Posted by: Bruce Schneier at December 21, 2005 08:38 AM

"Law is clearly something you know little about. You should stick to commenting on subjects you are qualified on, such as encryption algorithms and their application to, say, enable terrorists to gain advantage."

Care to be more specific? I have been working with groups like EPIC fighting FISA battles since Clinton. I have more than a little experience with this issue.

Posted by: Bruce Schneier at December 21, 2005 08:39 AM

"In 2002, that FISA review court upheld the president's warrantless search powers..."

Actually, you need to read the decision. It's bad, but it's not what you think.

http://www.cadc.uscourts.gov/common/newsroom/02-001.pdf

Posted by: Bruce Schneier at December 21, 2005 08:45 AM

"Also it's interesting to compare and contrast this presidential overreach to those of wartime Presidents Lincoln (with his suspension of habeas corpus) and FDR (with his ethnic relocation camps). War is hell."

Yes, and people excoriated Lincoln and FDR for their actions then. It's also arguable as to how much effect those actions actually had on the success of the war effort, just as it's arguable that Bush's incredible disregard for Americans' rights is actually having any net positive effect on catching terrorists.

It's easy to say that we're "winning the war" when the opponents are hidden from us, and the victories remain classified.

Posted by: Martin at December 21, 2005 08:48 AM

@Pork Soda:

Is it credible to assume that a dedicated adversary is unaware of comsec issues? IOW, does it make sense to assume that, absent the NYT article, this particular adversary would be unaware of transport-layer vulnerabilities in their communications?

Maybe it's just my security bias showing, but I see that argument as dangerously underestimating the adversary. And since underestimating one's adversary has been a known Bad Idea since Sun Tzu (and probably long before), doesn't that hint of another agenda lurking below the surface?

Hiding in the cloud is security through obscurity. A dedicated adversary will know this. Perhaps the problem with this whole controversy is that the game has been tipped to a less knowledgable target: the general public.

Posted by: Roy at December 21, 2005 08:52 AM

"Is it credible to assume that a dedicated adversary is unaware of comsec issues?"

It's not even COMSEC issues. It's commonly known that we eavesdrop on everything. Remember, the issue here is not whether or not we're listening. The issue is whether or not we're following the law when we do.

We can, and should, debate the law. But any such debate only makes sense if we have some confidence that the White House will accept the rule of law.

Posted by: Bruce Schneier at December 21, 2005 08:55 AM

"What about the security issue that's being glossed over? The Times article revealed to the enemy that their communications are being eavesdropped on by the government."

Who are you kidding? OSAMA BIN LADEN WAS TRAINED BY THE CIA. Do you really think they don't know they're being spied on, and how?

Furthermore, if this option is so necessary then where the hell is Bin Laden's head on a platter? Why are they looking for him in Quaker Meeting Houses?

What's happening is illegal and it's ALSO INEFFECTIVE. IF THIS SORT OF SPYING ACTUALLY WORKS, WHERE IS BIN LADEN??

The goons are going to have to put down their "best of amateur sneak-and-peek pr0n" and produce RESULTS before any credibility at ALL can be attached to "the necessity of domestic spying". Why hasn't that happened yet? Because the minute Bin Laden IS produced, their excuse to continue to abuse this power is greatly lessened... and no matter how many times they study it, no one can seem to find him anywhere in that distracting pr0n. WHAT a coincidence.

Say hi to Ms. England for me, PorkBoi!

Posted by: Trichinosis USA at December 21, 2005 08:58 AM

Allow me to be the first to fall foul of Godwin's Law:

http://en.wikipedia.org/wiki/Reichstag_fire

Posted by: Paul Crowley at December 21, 2005 08:59 AM

Amendment V - Trial and Punishment, Compensation for Takings
"nor shall private property be taken for public use, without just compensation."

I find this very interesteding.
Couldn't this mean that your personal information CANNOT be held, captured, monitored, etc UNLESS the government pays you for that information?
Also, what about the private resources that are used to gather the information for these databases?

Posted by: AG at December 21, 2005 09:03 AM

Clinton authorized no-warrant searches:
http://www.fas.org/irp/offdocs/eo/eo-12949.htm

Carter authorized no-warrant searches:
http://www.fas.org/irp/offdocs/eo12139.htm

Snipped from opinionjournal.com:
The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that "we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."
http://www.opinionjournal.com/editorial/feature.html?id=110007703

Posted by: Scott From Austin at December 21, 2005 09:15 AM

Be careful with the Clinton/Carter stuff. That's been racing around the blogsphere, but it's largely wrong.

This is the best debunking I've found:

http://www.dailykos.com/story/2005/12/21/8157/6595

Posted by: Bruce Schneier at December 21, 2005 09:21 AM

"This is indefinite dictatorial power."

This is where you cross the line from analysis to foaming-at-the-mouth propaganda. Go back and read the history of Nazi Germany or Stalinist Russia if you want some perspective on what "indefinite dictatorial power" means.

Posted by: JD at December 21, 2005 09:27 AM

@AG

Ahh... So does that mean I can go after Choicepoint now? Since my data is worth something to them, and they are holding it and selling it.

Posted by: cyphertube at December 21, 2005 09:28 AM

@ JD

Dictatorial power need not be malign in order to be dictatorial. There have been benevolent dictators as well. Much-loved monarchs of years past were such. That doesn't mean that they didn't have power above the law.

Being a dictator does not mean that one is automatically a psychopath.

Posted by: cyphertube at December 21, 2005 09:30 AM

"This is where you cross the line from analysis to foaming-at-the-mouth propaganda. Go back and read the history of Nazi Germany or Stalinist Russia if you want some perspective on what 'indefinite dictatorial power' means."

This is just wrong. Nazi Germany and Stalinist Russa are not what "'indefinite dictatorial power' means." They're just examples of non-indefinite dictatorial power. They're scary examples from recent history, but they're just exmaples. What "dictatorial power" actually means is more like "the power to ignore law at will."

If our society can't discuss these issues without falling to the Nazi hole, then we have no hope of navagating this crisis successfully.

The whole point of the essay was to talk about Bush's presumed legal basis for a dictatorship -- which is exactly what the Yoo memo is -- without hyperbole.

Posted by: Bruce Schneier at December 21, 2005 09:35 AM

As I have said before, one of the problems is that we have made complex laws to try and prevent abuse of power. Simple laws are easy to understand and have fewer places for cracks to show up.

I think that the executive branch lawyers belive that what they are doing is legal. These people are not stupid in this area. What should then scare us the most is the possibility that Congress has once again passed up on its responsibility to the citizens.

Of course the bigger danger might be that the NSA has leaked this information to the press. Not as a way to stop a criminal act (my bet is they are involved in a lot of marginal activity at best) but that they did so for political gain (disclaimer here, I am a card carrying member of the LP). "Mr. President we need you to authorize these wire taps, they will help us root out lots of terrorists."

Posted by: ARL at December 21, 2005 09:36 AM

I'm not necessarily disagreeing with you all, I don't want the government eavesdropping on American citizens without a warrant either. Looking at it from an operational security standpoint however, it's interesting that the Times revealed the information to the public despite that it could possibly help terrorists. If "everyone knew already" that it was happening, why is this even a story then?

Bruce, I'm sorry but that "debunking" posted on one of _the_ most partisan sites on the net isn't going to convince anyone who doesn't already agree. The references to "wingers" and "King George" in the first paragraph didn't exactly fill me with confidence in the writer's credibility. Would you consider credible a rebuttal to that that started out by saying "A bunch of leftist moonbats who hate America believe that blah blah blah..."? I'm not trying to engage in an ad hominem against Kos here but credibility does matter.

Posted by: Pork Soda at December 21, 2005 09:40 AM

It is our *responsability* to comment on law and politics. If you wish to argue that Bruce's views should not be given special weight in this field simply because he is well versed in another, that is far more supportable. I would argue, however, that contrary to your expressed opinion, Bruce has shown himself quite worth listening to on all matters related to security, technical or otherwise.

Posted by: Anonymous at December 21, 2005 09:42 AM

This issue is clouded by political preferencies and subjective ideas on what must be done to secure us from terrorists. If we remove these issues it might be possible to determine if the evesdropping is illegal, if the loss of privacy is worth the security we gain. I don't know what is correct, but surely it is a balance game between security and privacy.

Posted by: tg at December 21, 2005 09:42 AM

Whether other administrations in the past have crossed the line is irrelevant. What applies is the most recent precedent, and we have a chance to set a clear one here. Obviously, at present, the waters are too murkey. Even at the height of his power as Commander in Chief, the president's authority does not exceed the Bill of Rights (or any other explicit restrictions placed upon the government by the Constitution). We need to slap him down for unilaterally deciding otherwise and acting on it.

Posted by: David Thomas at December 21, 2005 09:55 AM

@tg

Isn't privacy a valid security concern in and of itself? It's one thing to worry about the big picture of mass-murderers attempting to kill us off, but it not too dissimilar to worry about an executive branch, regardless of nominal head, being able to engage in activities violating a person's personal security.

The difference in actions, stripped of agenda, is of single large acts against potentially large numbers, or large number of small acts against potentially large numbers.

Posted by: cyphertube at December 21, 2005 10:10 AM

Very good essay. Kudos.

Posted by: Fred Page at December 21, 2005 10:21 AM

"This is indefinite dictatorial power. And I don't use that term lightly; the very definition of a dictatorship is a system that puts a ruler above the law. (...)
Laws are what give us security against the actions of the majority and the powerful. If we discard our constitutional protections against tyranny in an attempt to protect us from terrorism, we're all less safe as a result."

That's an excellent and (in our current media world) extraordinarily clear-sighted analysis. There is no denying that Bush is acting in contempt of the constitution. He claims the power to fight terrorism by any means he deems necessary, for time indefinite, without being bound by any domestic or international law nor constitution; this is the very definition of dictatorship, or, if you prefer, absolutism. Those who now cite the Nazi dictatorship are well advised to learn some history because this is exactly what Hitler did in 1933: he had all constitutional safeguards suspended on the pretext that it was necessary to - guess what - fight terrorism. Of course, US congress has *not* given Bush the power to act above the law (although it has made some very bad laws). But Bush *claims* that power. This is worrying enough.

Posted by: piglet at December 21, 2005 10:22 AM

@cyphertube
The V deals only with the government seisure of property, but Choicepoint's use of your data would be used as an arguement that the data is worth something.

Posted by: AG at December 21, 2005 10:23 AM

Whether you hate or love Bush he has now;

Blatently admitted to breaking the law.
Whether he was justified to do so because of outside "unknown threats" does not matter.
He should be impeached and he should lose.

Posted by: AG at December 21, 2005 10:27 AM

"Bruce, I'm sorry but that "debunking" posted on one of _the_ most partisan sites on the net isn't going to convince anyone who doesn't already agree. The references to "wingers" and "King George" in the first paragraph didn't exactly fill me with confidence in the writer's credibility. Would you consider credible a rebuttal to that that started out by saying "A bunch of leftist moonbats who hate America believe that blah blah blah..."? I'm not trying to engage in an ad hominem against Kos here but credibility does matter."

A good point. To summarize:

The law does provide for warrantless wiretaps on "American persons," provided they are agents of a foreign power under very specific terms, namely 1801 (a)(1) (2) or (3). All of these require that citizen to be acting on behalf of a proper governemnt. Terrorist organizations, or individuals with intent to commit terrorism, fall under 1801(a)(4), which is not included. One (supposedly) commonly referenced site exacerbates this misrepresentation by absorbing everything after 1801, which broadens the definition to include all the subsections, which indeed would mean that the same legislation applies in dealing with terrorists as with dealing with those working for actual governments. This is not the case.

That said, if Clinton or Carter or anyone else has actually violated these laws, they should be censured by the Congress and punished accordingly. If they were presently in office, I'd want them impeached, as well, but since they no longer are we'll have to settle for censure. Likewise for any such violations of law and the Constitution.

Posted by: Anonymous at December 21, 2005 10:27 AM

whoops, forgot to sign it

the summary of the legal arguments was by me

Posted by: David Thomas at December 21, 2005 10:28 AM

@AG

True enough. However, if the government uses Choicepoint or supplies Choicepoint with information, does that become a concern? Can I sue Choicepoint for using my information without my permission, and then when they claim that it is public domain information, sue the government for giving them any of that information?

Moreover, can I go after the credit agencies under RICO?

Ok, I'm way too excited at the idea of going after companies this morning. Need to tone down the caffeine level.

Posted by: cyphertube at December 21, 2005 10:29 AM

"I think that the executive branch lawyers belive that what they are doing is legal. These people are not stupid in this area. What should then scare us the most is the possibility that Congress has once again passed up on its responsibility to the citizens."

I certainly don't hold Congress blameless here.

And certainly the White House lawyers believe what they're writing ... I think. Slate had a good article on this topic today:

http://www.slate.com/id/2132811/nav/tap1/

Posted by: Bruce Schneier at December 21, 2005 10:40 AM

Yeah, I know. I'm looking for a better essay. The various legal professors generally take a day or so, so hang on.

Posted by: Bruce Schneier at December 21, 2005 10:41 AM

"Of course the bigger danger might be that the NSA has leaked this information to the press"

That is a side story, but it is an interesting one. My guess is that people inside the NSA have been increasingly uncomfortable with what was going on. We know that the the FISA judges were uncomfortable with it, as was Sen. Rockefeller. One, or more, of them might have realized that sunlight is the best disinfectant.

Posted by: Bruce Schneier at December 21, 2005 10:44 AM

Somewhat OT, but has anyone thought about FDRs famous quote: "We have nothing to fear but fear itself".

Isn't Bush and the Executive branch giving into fear by basically saying that they can't win without cheating, and stooping to the level of the terrorists?

Where the hell is Winston Churchill character when you need them ("We will win because we are right").

Posted by: David at December 21, 2005 10:58 AM

"the rhetorical "War on Terror": a war with no fronts, no boundaries, no opposing army, and -- most ominously -- no knowable "victory.""

Very importantly, the "War on Terror" also has no actual declaration of war. It is no more a war than the "War on Drugs" or the "War on Poverty".

Posted by: Doug G. at December 21, 2005 11:02 AM

"debunking" and "dailykos" do not go together.

DailyKos has never been strong on facts.

Posted by: Paul O at December 21, 2005 11:17 AM

Careful, Bruce: your lovely blog is in danger of getting sucked down the black hole of politics. The next milestone is when you suddenly realize that global warming is also a security problem.

Posted by: Peter Pearson at December 21, 2005 11:18 AM

@Doug G.

Tongue-in-cheek: Of course, domestic surveillance might be far more useful in determining the enemies in the "War on Poverty".

Posted by: cyphertube at December 21, 2005 11:21 AM

"Careful, Bruce: your lovely blog is in danger of getting sucked down the black hole of politics. The next milestone is when you suddenly realize that global warming is also a security problem."

It's funny, but there's someone who keeps e-mailing me asking about the security implications of global warming. Honestly, I can't think of any that have anything to do with my area of expertise.

Posted by: Bruce Schneier at December 21, 2005 11:21 AM

@bruce

"And certainly the White House lawyers believe what they're writing ... I think."

This is a default position. It's what they teach in law school, stake out a position and defend it, regardless of whether it is "right" or "wrong." Who is employing you? Basically, those in power, whether CEOs, politicians, or moneyed interests, just take the default stance that they will not be stopped.

"No is not an answer."

"How do we get around this?"

"How do we make it happen?"

This is regardless of any laws, people, or morality standing in the way. It's why we have checks in the first place. Why do certain people (CEOs, politicans, moneyed interests...those with power, money, and advantage) always believe they are exempt? It's because they have gotten where they are with this approach.

Posted by: ordaj at December 21, 2005 11:22 AM

For a moment, let us step away from the legal debate of who is right and who is wrong and consider the underlying security concern.

It is easier to conduct surviellence when it is done in secret. It is ABSOLUTELY important to realize that we are fighting a war... a deadly war. This is not simply a politically charged discussion held over cocktails at a dinner party. I submit to you that we should allow Bush, the NSA, etc to do their job to the best of their ability..... I'm ok allowing someone to listen to my phone calls becuase, quite frankly, I have nothing to hide...

To support my assertion, I refer to Shannon's Information Theory (1948).
"Shannon's theory of information is extremely important in intelligence work, much more so than its use in cryptography would indicate. The theory is applied by intelligence agencies to keep classified information secret, and to discover as much information as possible about an adversary. The fundamental theorem leads us to believe it is much more difficult to keep secrets than it might first appear. In general it is not possible to stop the leakage of classified information, only to slow it. Furthermore, the more people that have access to the information, and the more those people have to work with and belabor that information, the greater the redundancy of that information becomes. It is extremely hard to contain the flow of information that has such a high redundancy. This inevitable leakage of classified information is due to the psychological fact that what people know does influence their behavior somewhat, however subtle that influence might be."

I am not stating that we should allow NSA to run free, but let them conduct their secret courts... let Bush authorize what he needs to so that he can be an EFFECTIVE command-in-cheif of our military.

Posted by: Mike at December 21, 2005 11:23 AM

@ Doug G.

Also, let us not forget terrorism is the tactical of instilling fear and not an enemy per se. Politicians have been telling the American people what to fear and how they [the particular politician] can protect us from it.

Is the president to have absolute power until no politician remain to oppose him? And that would result in….

Posted by: Shawn at December 21, 2005 11:24 AM

"It is ABSOLUTELY important to realize that we are fighting a war... a deadly war."

I'd be more likely to believe this if there were an actual declaration of war.

The "war on terror" is a "war" against an abstraction, against a tactic. It is not a war against an enemy. We don't live in wartime right now. Read any histories of the home front during wartime; it's kind of obvious.

We are not fighting a real war, we are fighting a rhetorical war. And a rhetorical war is not a good enough excuse to ignore laws at will.

Posted by: Bruce Schneier at December 21, 2005 11:26 AM

"I am not stating that we should allow NSA to run free, but let them conduct their secret courts... let Bush authorize what he needs to so that he can be an EFFECTIVE command-in-cheif of our military."

And if Congress passes a law allowing the NSA to do this or that against Americans without a warrant, I probably won't be happy...but it will be lawful.

Posted by: Bruce Schneier at December 21, 2005 11:27 AM

"It's funny, but there's someone who keeps e-mailing me asking about the security implications of global warming. Honestly, I can't think of any that have anything to do with my area of expertise."

Hmm... that's not what *our* records of your communications tell us.

Posted by: C. Sebastian Mongoose at December 21, 2005 11:32 AM

The hysteria over this issue is amazing and appalling. A Bush "dictatorship" indeed -- what a crock.

First of all, none of the public ranters have reliable information about exactly what was being done and what controls were actually in place -- nor should they. Any form of Intelligence collection depends on secrecy and doing things that would not be favored in polite society. Unfortunately, there are too many media mouths and politicians who have no scruples about destroying our nation's Intelligence capabilities in order to score political points. Thanks to them, more Americans will be killed.

If this were a real dictatorship, they would all be shot by now. (I'd be satisfied with just tarring and feathering)

Posted by: JD at December 21, 2005 11:37 AM

A smart lawyer can find a loophole in a STOP sign.

What John Yoo did is what make stuff up.

A lawyer's assertion may be fact. Or it may be wishful thinking. Or a flight of fancy, an absurdity, or an impossibility. The fact that a lawyer asserts it in itself means nothing. You can hire another lawyer to assert the exact opposite.

Lawyers working as legal advisors are valued not in how they can help their customers obey the law, but instead how to break the law and pretend to be not 'technically' in violation of the law.

Do such lawyers actually believe what they're arguing? Remember they get their first taste of lawyering by debating -- given a stand, defend it and attack the other side. There is also a helpful test: turnabout is fair play. If they would accept the same legal manuever turned against themselves -- without protest, without counter-suit, without getting an injunction, or any other legal recourse -- then ... maybe ... they believe it. Or not. Lawyers are by nature cagey.

Many months ago we had the example of Alberto Gonzales asserting that parts of our treaties have been 'rendered quaint', which in his mind means that we can violate the parts we don't want to obey without violating the treaty. This is nothing profound, only typical lawyerly shyster thinking. (Remind you of statements by Bush?)

Remember that Gonzales is the US Attorney General, ostensibly the chief prosecutor, yet has clearly proven himself to be Bush's chief legal cheerleader.

@Paul O

"Law is clearly something you know little about."

The law is not whatever one lawyer thinks it is, nor is it whatever two lawyers agree that it is, nor is it what most lawyer think, or what all lawyers agree on. It may be useful to pit lawyers against each other and see what arises, but only a fool would think that lawyers don't have as their number one priority the protection of their own profession. (This is inherent. Judges have a like problem, so do the police.)

Juries are there to decide what the law is in the particular case. And in a jury trial, you might note that the two sets of lawyers are in complete disagreement on many aspects of the case. As I said, a lawyer's view means nothing per se.

@Bruce

The analogy of the police having more power for a murder than a burglary may confuse the issue. Better is a detective investigating a double murder arguing for correspondingly more power than one investigating only a single murder. Then a detective with a triple murder can get super-extraordinary power, and so on.

Posted by: Roy Owens at December 21, 2005 11:41 AM

@ JD

"none of the public ranters have reliable information about exactly ... what controls were actually in place"

You are blatantly missing the point! The problem is the president has illegally removed all such controls!

Posted by: Shawn at December 21, 2005 11:45 AM

"We are not fighting a real war, we are fighting a rhetorical war."

Tell that to the people who lost loved ones on 9/11. Tell that to the people who are putting their lives on the line today to take out real live terrorists before they slaughter more thousands of innocent victims.

Yes, there is plenty to criticize in how this war is being waged. But some people seem to be doing their best to deny our ability to wage a real war.

Posted by: JD at December 21, 2005 11:48 AM

"If this were a real dictatorship, they would all be shot by now."

Actually, that's not true. And it would be unfortunate if people used that as a yardstick to measure whether a form of government is a dictatorship.

Opening up my handy Miriam-Webster, definition 3 reads: "a: a form of government in which absolute power is concentrated in a dictator or a small clique, b: a government organization or group in which absolute power is so concentrated, c: a despotic state."

The definition says nothing about shooting people, of malovelence in general. A dictatorship can be completely benign, benovelent even.

Reread the Yoo memo. It says that the president has absolute power, and is above any law. That's what a dictatorship is.

But that's the security risk. You might think that Bush is fine to have this power, but you have to be fine with the winner of the next presidential election -- whoever it might be -- having this power.

If you think that Hillary Clinton would line people up against a wall and have them shot, then you need to speak up now against giving the presdent these sorts of powers.

Posted by: Bruce Schneier at December 21, 2005 11:49 AM

I have always maintained that email and voice are safe ways to communicate securely... until the government starts spying on us. Maybe now the struggling encryption industry will see some action!

Posted by: Stiennon at December 21, 2005 11:49 AM

"'We are not fighting a real war, we are fighting a rhetorical war.'

"Tell that to the people who lost loved ones on 9/11. Tell that to the people who are putting their lives on the line today to take out real live terrorists before they slaughter more thousands of innocent victims."

That's a non-sequitur. "Dangerous situation" is not the same as "war." "Day where a horrible terrorist attack too place" is not the same as "war."

"Yes, there is plenty to criticize in how this war is being waged. But some people seem to be doing their best to deny our ability to wage a real war."

We certainly have the ability to wage a real war; we proved that in Iraq. Our ability to conduct the sort of intelligence gathering and investigation necessary to defend ourselves against terrorists is more in question, but I have no doubt that we have the ability.

Using this as some sort of argument for breaking the law is nothing more than a smoke screen.

Posted by: Bruce Schneier at December 21, 2005 11:52 AM

"I have always maintained that email and voice are safe ways to communicate securely... until the government starts spying on us. Maybe now the struggling encryption industry will see some action!"

We've been told that encryption must be curbed otherwise the terrorists will win before. (Anyone remember Louis Freeh?) I suspect we'll soon start hearing it again.

Posted by: Bruce Schneier at December 21, 2005 11:54 AM

@Bruce:

"The "war on terror" is a "war" against an abstraction, against a tactic. It is not a war against an enemy. We don't live in wartime right now. Read any histories of the home front during wartime; it's kind of obvious."

So, are we discussing the NSA or the Black Chamber? True, we are not "declared at War with xxx (pick a country)'.... the NSA was founded (in part) to continue electronic intelligence DURING PEACETIME! Based on the aftermath reports, one of the reasons we were attacked on 9/11 was becuase America developed a mentality of "we are not 'at war' with any country, thus we don't need to fund, continue, allow war-time techniques to continue"...

Posted by: Mike at December 21, 2005 11:54 AM

"It is ABSOLUTELY important to realize that we are fighting a war... a deadly war."

If you don't realize that this is the kind of excuse all dictators/tyrants in the history of humankind have been using then millenia of constitutional history are lost on you. Laws and constitutions must be binding even in times of crisis, otherwise we would go back to the law of the jungle.

Posted by: piglet at December 21, 2005 11:54 AM

@ Shaun

"The problem is the president has illegally removed all such controls!"

BS. You don't know that. You think all the rants of Bush haters equate to facts?

Posted by: JD at December 21, 2005 11:56 AM

It is a good point on the Clinton/Carter authorization.

Still, the FISA Court of Review concluded: if the President has the power to authorize no-warrant wiretaps, FISA cannot encroach on that power. More here:

http://www.chicagotribune.com/news/opinion/chi-0512210142dec21,0,3553632.story

Posted by: Scott From Austin at December 21, 2005 11:57 AM

good morning, my fellow imperial romans! how could you be surprised at the emerging news? nothing lasts forever, even the diamond on your wife's finger is slowly turning into ordinary carbon, and the republican form of government is surely more transitory than a diamond. in order to see the future, just look at the past! once we had caesars, strong leaders who were yet answerable to the tribunes of the people, by and by, along came neros and caligulas who were answerable to nobody. republican rome was based on certain common principles shared and honored by all, over time these principles became less important, everybody just wanted to go out and have fun. first, an election was rigged and then they stopped having elections. in september and october of 2004, the administration was seriously considering postponing the election in the event of another 9/11, remember? it is but one small step from there to manufacturing a 9/11 to justify indefinite retention of power and bye-bye republic! a dynasty is forming and will ultimately be recognized as such. prescott the nazi sympathizer begat george one, and george one begat the reigning george two. the dowager empress barbara is a truly wicked, nasty piece of work, but she has a beautiful mind! the concept of morality (which has nothing to do with religion) becomes trivialized, and the grossest perversions manifest themselves on the public stage. ever more elaborate circuses are contrived to distract the citizens from what is happening around them. we have something rome didn't, the internet, consequently we will be privileged to experience and savor a brand new thing: e-decadence. the rise of the imperium does not mean you can't have fun anymore, oh no, but you must be careful of one thing. you must watch your ass. do **not** fall off and get caught under the wheels, you could be kidnapped and sent to afghanistan and never heard from again!

Posted by: another_bruce at December 21, 2005 11:57 AM

"That's an idiotic argument, and even the White House seems to have dropped it. ...Look up all the stories about how bin Ladin was tracked using his cellphone, for starters."

Really? Surely the bin Laden example suggests that concern over the security breach here is not at all idiotic. Bin Laden was tracked using ihs cell phone until 1998, when a press leak, much like the current one by the times, caused him to change his behavior.

If the NSA has recently been intercepting calls by people with ties to terrorism, then we KNOW they have been using phones that we can monitor, despite your feeling that our surveilence capabilities are common knowledge to them. People make mistakes and get sloppy over time.

The suggestion that having confirmation that yes, they've been intercepted blasted all over the world press will not remind our enemies to pay careful attention to their message discipline and harm our ability to fight them seems entirely unsupported.

Posted by: David Gaw at December 21, 2005 12:04 PM

As to the question in how far an emergency justifies a suspension of liberty and human rights, I would like to submit to you the opinion of the British High Court Judge Lord Hoffmann, in a landmark ruling overturning indefinite detention of terrorist suspects in the UK (http://www.publications.parliament.uk/pa/
ld200405/ldjudgmt/jd041216/a&oth-5.htm).

After 9/11, the UK had suspended part of the European Human Rights Convention on the grounds that a "war or other public emergency threatening the life of the nation" had made it necessary.

Lord Hoffmann: "The power which the Home Secretary seeks to uphold is a power to detain people indefinitely without charge or trial [a power also claimed by Bush]. Nothing could be more antithetical to the instincts and traditions of the people of the United Kingdom. (...) What is meant by "threatening the life of the nation"? The nation, its institutions and values, endure through generations. In many important respects, England is the same nation as it was at the time of the first Elizabeth or the Glorious Revolution. The Armada threatened to destroy the life of the nation, not by loss of life in battle, but by subjecting English institutions to the rule of Spain and the Inquisition. The same was true of the threat posed to the United Kingdom by Nazi Germany in the Second World War. (...) This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. *I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation.* Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community. (...)

**The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.** That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory."

Posted by: piglet at December 21, 2005 12:05 PM

@piglet:
"If you don't realize that this is the kind of excuse all dictators/tyrants in the history of humankind have been using then millenia of constitutional history are lost on you. Laws and constitutions must be binding even in times of crisis, otherwise we would go back to the law of the jungle."

Point taken... Perhaps I wasn't clear. I was rebuting the notion that some say we are not 'technically' at war.... Iraq/9-11/Afganistan is not a 'conflict' that started on Sept 11, 2001.... Whether Congress has said "Ok, this is an 'offical' war or not, doesn't much matter in my book.... our soldiers are fighting, and dying... In fact, this is not a new war... we are continue to engage in a war that has its roots back before the Middle Ages....

Posted by: Anonymous at December 21, 2005 12:06 PM

"Surely the bin Laden example suggests that concern over the security breach here is not at all idiotic. Bin Laden was tracked using ihs cell phone until 1998, when a press leak, much like the current one by the times, caused him to change his behavior."

Exactlly. The 1998 leak was the problem. Putting myself in terrorist shoes, I haven't learned anything this past week that will cause me to change my behavior.

I'm not saying that revealing intelligence methods is always harmless. There is a lot of history that demonstrates the opposite. In this case, however, I haven't learned anything new about intelligence methods.

Security is always a trade-off. Remember that. And there is always more than one trade-off occuring at the same time. Assuming we can convince Bush to follow the law, the security gained by the New York Times publishing this story is far greater than the security lost by telling the terrorists what they already knew.

Posted by: Bruce Schneier at December 21, 2005 12:13 PM

"BS. You don't know that. You think all the rants of Bush haters equate to facts?"

No, I don't. Nor do I think that the statements of Bush equate to the facts. But Bush did say that he authorized this surveillance without the proper FISA warrants, and I take that as fact for now. I also take the Yoo memo, the FISA statute, and the relevent Supreme Court decisions as fact. And I take the various legal analyses from people I trust -- both liberal and conservative -- as close to fact.

Posted by: Bruce Schneier at December 21, 2005 12:16 PM

@ JD

"BS. You don't know that. You think all the rants of Bush haters equate to facts?"

The fact is Bush's executive order circumvents the safeguards established by the United States Congress. That is undeniable as well as reprehensible.

What right does the Executive have to declare the Legislature mandate of Judicial oversight be ignored in favor of Executive oversight of the Executive? Moreover, why would we trust any branch providing oversight of itself? That is counter to the very nature of oversight!

Posted by: Shawn at December 21, 2005 12:22 PM

I'm seeing a fascinating argument pop up again and again, both in the comments here and elsewhere.

In response to a statement where someone claims that the USA is becoming like Nazi Germany or the USSR in one particular respect, a reply is posted saying, "The USA is clearly not X, because Nazi Germany was X, Nazi Germany shot people in the middle of the night and had concentration camps, and it is clear to anyone that the USA does not do this. Therefore, you are wrong"

Does nobody using this argument understand how completely circular it is? Not to mention that it applies to a lot of things besides "dictatorship". For example: I say that the USA has a President. But Nazi Germany had a President, and did all these horrible things the USA does not do, so I must be wrong.

People, don't go into automatic "deny deny deny" mode just because you see a possibly-loaded word such as "dictatorship". It does nobody any good.

Posted by: Michael Ash at December 21, 2005 12:27 PM

@ Bruce

"A dictatorship can be completely benign, benevolent even."

I'd be interested to see your list of examples of benign, benevolent dictatorships. It always fascinates me how people who consider themselves "liberals" can be enamored of such an idea.

Okay, shooting dissidents is not a universal feature of dictatorships, but suppressing them by one means or another is. Show me a dictatorship that could survive the kind of storms of public dissent we take for granted in this country?

When we see government-sponsored goon squads trashing the offices of the New York Times, Washington Post, ABC, NBC, CBS, and CNN, then talk to me about an American dictatorship.

Posted by: JD at December 21, 2005 12:30 PM

@JD

No, it is not a real war. I will tell those who were victims of 9/11 that they were the victims of mass-murder. This happens.

In 2001 the murder rate, if you count all those casualties as murders in the general sense, was still lower than in the mid-90's.

Random acts will happen, pre-meditated or not. A determined group who is quite intelligent will easily kill several thousand individuals before detected. It is not a big issue. The terror is that it happened in a way not previously forseen by the majority of Americans.

So, in reality, this is no more a war than the standard long-running war on crime, which is a police, not military, responsibility.

Posted by: cyphertube at December 21, 2005 12:30 PM

@bruce schneier
you said "Assuming we can convince Bush to follow the law..."
excuse me, i found this assumption, and seeing it committed to writing in public, to be absolutely uproarious.
louis xiv, the "sun king", famously said "je suis l'etat" (i am the state). in his news conference the other day, bush basically said the same thing.
if you're going to approach the modern reigning sun king and try to convince him to follow the law, i would pay $1000 for a ticket to watch, as long as i could watch from a safe distance, out of sight of the sun king.

Posted by: another_bruce at December 21, 2005 12:30 PM

I for one welcome our new insect overlords. All hail King George!

Posted by: Glauber Ribeiro at December 21, 2005 12:34 PM

"I'd be more likely to believe this if there were an actual declaration of war."

Why? There was no declartion of war in the Korea War, in Vietnam, or during the Persian Gulf war. Were those not wars?

"The 'war on terror' is a 'war' against an abstraction, against a tactic. It is not a war against an enemy."

Sure it's a war against an enemy... it's a war against the people who employ and seek to employ the tactic. Perhaps it might more accurately be described as the "war on anti-American terrorists", but that doesn't have quite the same ring to it.

Is the war on terror a state of open, armed, often prolonged conflict carried on between nations, states, or parties? If so (and I would argue that yes, it is), then at least the dictionary think it's a war.

That life on the home front is different than in World War II seems to speak more to this being a different kind of war than anything else: an indication of our military capabiltiies and the tactics employed by our enemies.

"We are not fighting a real war, we are fighting a rhetorical war. And a rhetorical war is not a good enough excuse to ignore laws at will."

Are you suggesting a non-rhetorical war would be a good enough excuse to ignore laws at will?

Posted by: David Gaw at December 21, 2005 12:38 PM

"The hysteria over this issue is amazing and appalling. A Bush "dictatorship" indeed -- what a crock.

If this were a real dictatorship, they would all be shot by now. (I'd be satisfied with just tarring and feathering)"

You might want to study history a bit. First of all, there have been plenty of dictators who didn't kill people left and right. Second, many dictatorships have started by the people willfully giving up their rights. Only later does the dictator use the aboslute power granted for malevolence. Since Hitler seems to be one of your favorite examples of a dictator, let's take him. He was given his power by the people and legislature of Germany to fight terrorism. He was a popular man, and gained his absolute power through legal means.

The argument "he needs absolute power to fight the war or more people will die" is BS. This is the same argument always used as propoganda to convince people to give someone more authority. Would you be arguing the same thing if your political enemies were in power? I doubt it.

Posted by: mike m at December 21, 2005 12:41 PM

@cyphertube

"No, it is not a real war. I will tell those who were victims of 9/11 that they were the victims of mass-murder. This happens."

hm..... don't quite know where to start with that one. Perhaps a good history class might help you?

Posted by: Mike at December 21, 2005 12:48 PM

"I'd be interested to see your list of examples of benign, benevolent dictatorships. It always fascinates me how people who consider themselves 'liberals' can be enamored of such an idea."

What makes you think I am, for even a moment, enamored of such an idea?

Remember that democracy is the worst form of goverment, except for all the others.

Posted by: Bruce Schneier at December 21, 2005 12:49 PM

@Mike

Killing multiple people is not an act of war. It is an act of murder. For us to react to it as though it is war simply gives credence to a few enemies who have managed to find holes in security and utilise larger weapons. Was the bombing in Oklahoma City an act of war? The only difference is that this was coordinated and used planes. It's still simply mass-murder and they are not generals or geniuses, but thugs who got lucky.

Posted by: cyphertube at December 21, 2005 12:52 PM

@Mike (cont'd)

Moreover, as I think about, part of waging a war is to have definable and reachable objectives. There is no clear goal to these terrorist groups, except perhaps building up their power. It is not like they act as though a reduction in forces in the Middle East would reduce their actions, or that stopping the sale of arms to Israel would accomplish anything. There is no credibility or clear mantra to their argument aside from spreading fear and killing. That is not waging war; it is simply mass-murder.

Posted by: cyphertube at December 21, 2005 12:55 PM

Whoa. I go away for a few minutes and then had to catch up with 73 comments? Well done, Bruce.

I have enjoyed everything so far, but I am especially amused to hear people continue the myth that someone who criticizes the Bush Administration is necessarily a Bush hater.

Aside from the separation of person and policy, the fact remains that this President and his Vice President are very good at using the "all or nothing" argument to avoid the hard work of democracy. The infamous "I'd rather be a dictator" quotes by Bush are very telling. What he means is that you either have to support drilling for oil in the Arctic or you are against troops getting their supplies. You either are for a billion-dollar boon-doggle rainforest in Iowa, or you are against hospitals getting medicine, etc.

And that is partly what is so scary about the shift away from a government that is meant to be based on normal compromise and moderate mainstream values and towards an extremist junta-like approach to policy. Cheney is not kidding when he threatens people on the hill with retribution if they oppose him.

So you don't have to hate Bush to hate the fact that he admits that he can not succeed in life unless he cheats or breaks the law -- and that has now made him undoubtedly one of worst US Presidents in history.

You might be close friends with the guy and love to play rounds of golf or go fishing with him on the weekends. He might be your best buddy. But at the end of the day even friends shouldn't let their friends break the law and drive a country amuck.

Posted by: Davi Ottenheimer at December 21, 2005 01:00 PM

"I haven't learned anything this past week that will cause me to change my behavior."

I'm not sure that the average al Qaeda operative is as smart as you, Bruce. Plus, knowing what you should do and doing it are two different things. Wasn't former FBI agent Robert Hanssen, who spied for the Russians, caught because he left his fingerprints on the bags he used to deliver secrets to his handlers? Did Hanssen not know about fingerprinting? Or did he just make a mistake?

Perhaps the people we were targetting took what they thought, incorrectly, were sufficient precautions, and the New York Times has now corrected their misapprehension. We may never know.

Posted by: David Gaw at December 21, 2005 01:06 PM

"I'd be interested to see your list of examples of benign, benevolent dictatorships. It always fascinates me how people who consider themselves "liberals" can be enamored of such an idea."

It all depends on point of view, as many considered Vladimir Lenin to be a benevolent dictator.

However, there is one I know of: Habib Bourguiba. He ruled Tunisia as President For Life. He had absolute power, but as far as I know he did not abuse it. Instead, he used his power to pass many reforms in education, women's rights. He also promoted secularism, ending Islam fundamentalism in the country.

http://en.wikipedia.org/wiki/Habib_Bourguiba

But the point is that benevolent dictators are almost unheard of, and that is true.

Posted by: Anonymous at December 21, 2005 01:09 PM

@cyphertube

Once you start to think like a Judge you would see the argument holds up PERFECTLY.

1. Your private information is your property.
2. You PAY for you Internet connection and you phone so both are your property.
3. Seizure of your property MUST be compensated

Why even debate whether it is legal to seize your property to begin with? Get paid.

Posted by: AG at December 21, 2005 01:10 PM

"Killing multiple people is not an act of war. It is an act of murder."

I suggested a history lesson becuase you are missing the large historical picture. Osama didn't just wake up one morning and decide to bring jihad against America...
This may be a political war, but it is essentially a war of theology. A Christian worldview vs. Islamic worldview. Think I'm wrong? read a history book.... Islam started to control a majority of the region in the 9th, 10th centuries. Christians fought back (note: don't misunderstand my perspective... BOTH sides committed horrible acts, I'm not justifying one or the other).
Anyway, the quick version is you have the Crusades... the Ottman Empire the early 1900's... All based off the same ideology as Osama Bin Laden's attacks on 9/11.
Furthermore, you mention Ok City... read a book called "The Third Terrorist" by Janye Davis (spelling?). Even if you disagree with her conclusion, she mentions a number of verifiable facts that link bombing expert Ramsey Yousef (who later carried out the first bombing on WTC in '93... )

Anyway, I realize that is quite a contraversial debate and there are people more qualified than I to present a case. However, my point being that there is an irrefutable, ideoligical link between a whole history of events and our current situation. To deny that is simply an indignant response. We are not dealing with "a few enemies who have managed to find holes in security".

Posted by: Mike at December 21, 2005 01:10 PM

As an interesting addition to the debate, former Clinton-era associate Attorney General John Schmidt writes in the Chicago Tribune that the taps were "consistent with court decisions and with the positions of the Justice Department under prior presidents".

So here is your prominent lawyer who does not work for the administration and believes the wiretaps were legal.

http://tinyurl.com/8q8mt

Posted by: Pork Soda at December 21, 2005 01:13 PM

@cyphertube:

"There is no credibility or clear mantra to their argument aside from spreading fear and killing."

Read the Quran.... I am at work and do not have access to my research material, but you would be surprised at the directness of some passage in the text.... Now, like any religion, you have moderate and fundamental interpretations of the text... I'm not trying to lump 1.x billion people into the same category. However, there are a number of people throughout history, that have viewed the text from the same perspective. That is what unites our enemy....

Posted by: Mike at December 21, 2005 01:14 PM

@ Mike M

Yes, we all might want to study history a bit. I expect most folks would allow that "The Rise and Fall of the Third Reich" by William Shirer is a pretty good study.

The points you make are practically all incorrect.

Hitler was not given power "to fight terrorism" -- the Nazis were the main source of terror in the country. It was more a case of exploiting the anarchy and economic distress that prevailed. Not to mention the belief of many that the coming dictatorship would be benign and benevolent, at least for themselves.

As for Hitler's popularity, in the last more or less free election in the country, after the Nazis had already come to power and had the benefit of control of media and propaganda, 56% still voted against the Nazis.

Finally, as for gaining "absolute power through legal means" -- Hindenberg did have the authority to appoint Hitler as Chancellor, but initially Hitler's legal powers were far from absolute. And how he subsequently achieved totalitarian power in 1933 and 1934 had little relation to any concept of legal means.

Posted by: JD at December 21, 2005 01:21 PM

@ cyphertube

"There is no credibility or clear mantra to their argument aside from spreading fear and killing. That is not waging war; it is simply mass-murder."

Well there is hardly a clear mantra to war from either side these days, eh? That's precisely the problem, so you're going down a very slipperly slope with that argument.

Instead I suggest reading General Sir Rupert Smith's book called "The Utility of Force". He supports the idea that there is no longer any real "war" in the traditional sense, and victory can only come from consent of the people. In other words the conflict can no longer be staged in a "theater" where one side "beats down" the other, it has comes to a battle for the "will" (hearts-and-minds) of the people most affected.

From a historic perspective, just as the calvary was unable to overcome the "senseless brutality" of new methods of combat (machine-guns, mines, barbed wire, etc.) we are witnessing the shift from the technical superiority of US weaponry (tanks, missles, etc.) to a whole new style of combat possessed by those who better understand how to wage war from "among the people".

I've written about this in the past, with regard to how the Special Forces in Afghanistan made recommendations to the Army about how to win the confidence of the locals there and in Iraq and thusly uproot the source of IEDs. This was reportedly brushed aside by the Pentagon, which instead fumbled the support of locals and opened the door to the resistance and proliferation of IEDs.

Posted by: Davi Ottenheimer at December 21, 2005 01:21 PM

@Mike

Explain to me how that differs from simply organised crime, like that of the Mafia? Aside from a basic ideology that is used to justify (which is no different from Neo-Nazis, Christian Identity, or White Supremicists in finding justification from all kinds of sources), how are their actions really any different?

How are you going to distinguish those with whom you should use police powers from those with whom you should use military powers? Is it a matter of citizenship? Is it ideology? Is it religion? Violence? Perhaps the NSA should be used to track level 3 sex offenders in the US? They have motive and they're likely to reoffend. Some are certainly known to kill.

The issue is where you want to draw the line. The reality of 9/11 is aside from the impact on the psyche of the nation, the impact was a blip in the statistics for the economy and the murder rate.

Posted by: cyphertube at December 21, 2005 01:25 PM

@Davi

Agreed that the argument of what to define as war is a difficult one, but again, regarding hearts and minds, it becomes an important issue. How much credibility do you wish to give your enemy?

I'm not surprised that the Pentagon brushed aside a number of recommendations. Many members of this government right now are still functioning on Cold War dogma.

Posted by: cyphertube at December 21, 2005 01:30 PM

@JD: ""A dictatorship can be completely benign, benevolent even."

I'd be interested to see your list of examples of benign, benevolent dictatorships. It always fascinates me how people who consider themselves "liberals" can be enamored of such an idea."

You are mixing up things.
1. You seem to take "dictatoprship" as a moral judgement, but it is a technical description of a form of government. The term originates in the Roman Republic, the Senate of which could in time of crisis bestow dictatorial power on a leader. It was strictly limited to 6 months or until the end of the crisis, whichever came *earlier*. It happened rarely, the last time under Caesar, who brought the Republic to an end. Which exemplifies why most of us don't like dictatorship: even if we happen to like the dictator in the beginning, the risk of power abuse is too obvious. This is what Bruce has been saying and you seem not to get: don't give anybody unchecked power. That's what constitutional checks are there for. Btw, constitutional checks do not *guarantee* that abuse of power will not occur, they just make it less likely. Just as a dictatorship doesn't necessarily do wrong, democratic governments don't necessarily do right. We can only hope, for various reasons, that democracies are more likely to do right, but in fact, sadly, some of the worst crimes were committed by democracies - by the USA in Vietnam, by France in Algeria, by the British in their colonies. They behaved like tyrants, nevertheless, technically they were democratically legitimized.

Posted by: piglet at December 21, 2005 01:31 PM

@Pork Soda:

"Also it's interesting to compare and contrast this presidential overreach to those of wartime Presidents Lincoln (with his suspension of habeas corpus) and FDR (with his ethnic relocation camps)."

Both of which were determined by the Supreme Court to be overstepping the bounds of their constitutional authority as president.

Posted by: Jarrod at December 21, 2005 01:32 PM

@Bruce

The possibility that Clinton and/or Carter may have authorized the same kind of thing underlines the problem with this kind of law. If it was legal for Bush then it was Legal for C&C, if it was illegal for Bush then it was also illegal for C&C.

But the fact that this _may_ be the new standard for Presidentail activity is the greater concern. Partisan politics are an issue, but they existed at the time of our Founding Fathers and they did not seem to be worried about it. What they did spend time on was the expansion of power by one branch of government.

Who we are fighing in this war is a bit abstract. But we should at least need to ask what did Congress authorize:

"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;"

Posted by: ARL at December 21, 2005 01:40 PM

@JD: "Hitler was not given power "to fight terrorism" -- the Nazis were the main source of terror in the country. (...) And how he (Hitler) subsequently achieved totalitarian power in 1933 and 1934 had little relation to any concept of legal means."

You are really that naive? The 1933 "law for the protection of the people and the state" was passed legally, by parliament, and it did justify dictatorial powers with the need to "fight terrorism", as defined by the government - just like certain laws since 2001. And "the belief of many that the coming dictatorship would be benign and benevolent, at least for themselves", as you put it, is precisely a case in point. That is how dictatorships often evolve: at first, people agree to grant ever more powers to the government because they trust that it will be in their interest. You really don't see any connection to Americans aquiesceing to the internment without trial of thousands of foreigners, to torture, spying, erosion of civil liberties, killing thousands of innocents in unprovoked wars? *Aren't they all saying "heck, it's not me who's gonna be spied on, imprisoned, tortured or killed, so it's all right"?*

Posted by: piglet at December 21, 2005 01:41 PM

"I'd be interested to see your list of examples of benign, benevolent dictatorships. It always fascinates me how people who consider themselves "liberals" can be enamored of such an idea."

No one but Bush has said a dictatorship would be a good thing. Dictatorships, like any other form of government, can happen to be good - the problem is, you can't count on it.

Incidentally, although I poke fun, I actually give Bush less flak for the comments about dictatorship than many do. It's *true* that getting anything done is easier in a dictatorship. Unfortunately, this includes abuses. It appeared to me, from the context of the remarks, that he was simply acknowledging this fact.

This by no means lessens the threat to our liberties due to his actions.

Posted by: Anonymous at December 21, 2005 01:54 PM

That weird piece of propaganda that both Clinton and Carter approved eavesdropping on Americans without a warrant seems to have originated from Drudge:

http://www.drudgereport.com/flash8.htm

Think Progress has a refutation:

http://thinkprogress.org/2005/12/20/drudge-fact-check/

Both of those sites are highly partisan, so I'll excuse you if you don't believe one or the other -- or both. But in this case, however, it's easy to tell who is right. The Federal Government has the text of both executive orders on-line.

Carter: XO 12139--Foreign intelligence electronic surveillance:

http://www.archives.gov/federal-register/codification/executive-order/12139.html

Clinton: XO 12949 -- Foreign intelligence physical searches:

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=1995_register&docid=fr13fe95-85.pdf

The text cited in the refutation is correct. The text cited in the Druger smear has been edited to change the meaning.

Posted by: Bruce Schneier at December 21, 2005 01:58 PM

@ Jarrod

"Also it's interesting to compare and contrast this presidential overreach to those of wartime Presidents Lincoln (with his suspension of habeas corpus) and FDR (with his ethnic relocation camps)."

Both of which were determined by the Supreme Court to be overstepping the bounds of their constitutional authority as president.

---

Yes, exactly. I'm just trying to point out that in the past Presidents have overreached during wartime in efforts to defend the country and we have historically allowed them broad latitude with which to do so. When they overstep, we slap them back.. after the fact. Neither Lincoln nor FDR were ever impeached for their actions during wartime, as unconsitutional as they were.

Perspective is what is needed here. Eavesdropping on international phone calls to known terrorist associated cell phone numbers is a long way from suspending habeas corpus or imprisoning ethnic minorities.

Posted by: Anonymous at December 21, 2005 02:04 PM

"The possibility that Clinton and/or Carter may have authorized the same kind of thing underlines the problem with this kind of law. If it was legal for Bush then it was Legal for C&C, if it was illegal for Bush then it was also illegal for C&C."

This does not quite follow. If they performed the same acts against the same class of people, then yes, absolutely. There are differences in the law, however, between foreign agents who are working for a specific, recognized foreign government, and foreign agents who are a part of a terrorist network. It may or may not be that this actually winds up mattering, as I do not know enough about what Clinton and Carter did, but if that is a difference, then the laws do differ.

"But the fact that this _may_ be the new standard for Presidentail activity is the greater concern. Partisan politics are an issue, but they existed at the time of our Founding Fathers and they did not seem to be worried about it. What they did spend time on was the expansion of power by one branch of government."

Now that I strongly agree with. Whether he's your boy or not, we have to say no to this kind of thing. If C&C, as you put it, did likewise, then censure and prosecute them - they can't be impeached for obvious reasons...

"Who we are fighing in this war is a bit abstract. But we should at least need to ask what did Congress authorize:"

Good point.

Posted by: David Thomas at December 21, 2005 02:07 PM

"Eavesdropping on international phone calls to known terrorist associated cell phone numbers is a long way from suspending habeas corpus or imprisoning ethnic minorities."

Bush DID suspend habeas corpus and he DOES imprison people from ethnic minorities. Unfortunately, discussions like this tend to focus on issues concerning directly US citizens, because the others don't get much space in US media. I agree that the eavesdropping thing is a relatively minor issue in comparison with what happens in Iraq, Guantanamo etc. But it causes a lot more outrage than the fact that people are imprisoned for years without defense and without being charged of a crime. The now prevailing, more critical attitude towards Bush is welcome but I wonder how much of it is hypocrisy.

Posted by: piglet at December 21, 2005 02:24 PM

Be careful of this "evidence" from the WSJ:

http://www.opinionjournal.com/editorial/feature.html?id=110007703

"The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal 'court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority