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When Blogs are Better than Law Reviews...

It's hard to walk across the quadrangle at Columbia these days and not hear someone talking about the NSA and wiretapping. If you want to be the envy of your watercooler friends, read Professor Orin Kerr's analysis and actually have some legal arguments on hand when the topic comes up. As Prof. Althouse says, "[A]t the very least fair-minded observers should see that the problem is complex. Cries that the program is blatantly unconstitutional (or obviously constitutional) should be recognized as unhelpful." (Someone tell that to Ambimb.)

Sadly, I have an evidence exam tomorrow and can spend little more on this. One thing bothers me about the story. The Times has hinted at new technologies being used in these wiretaps. Much like this blog, I wonder whether we can actually evaluate the legal situation when we don't know what technology is in use.

(My personal take, made brief as I should get sleep before my Evidence exam: as a political issue the wiretap story blows over in a week or two because what matters politically isn't so much what power is exercised as who exercises the power. If you trust the President, then he was using these taps against terrorists to prevent another 9/11: who needs those stinkin' warrants? If you think Bush is a chimp, you get on your constitutional high horse and worry about whether he's about to start sending every member of the Democratic National Committee to Gitmo. (See UPDATE)

Maybe I'm old, but I like to remember the '90s. When Clinton was in office, the sudden appearance in the White House of files on Republicans signalled the coming of Big Bubba . . . if you were on the right. If you were on the left, the fuss sprang from no more than a harmless paperwork error, or maybe even a bizarre coincidence: the flapping of a butterfly's wings in Karimnagar, the appearance of secret files where they shouldn't be. If every member of the Democratic Party now getting the vapors over FSIA had been so fastidious about privacy when Gore was proposing the Clipper Chip, Clinton wouldn't have had two terms.)

UPDATE: For a predictable example, we can always count on Professor "If I Don't Like It, It's Fascism" Leiter over at UT. No legal analysis--par for the course for the Report--but only the headline "Libertarians for Fascism" and an approving link to the typically uninformative Dadahead (who in turn is merely quoting Scott Lemieux). The latter two posts boil down to "[T]he legal question here is unambiguous." As for Leiter's opinion, he doesn't tell you what he thinks of statutory ambiguity, merely that it's fascism.


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» In 28 years the FISA Court has never turned down a surveillance request from Inside Opinions: Legal Blogs
Update to original post: Orin Kerr has typed a voluminous and nuanced Legal Analysis of the NSA Domestic Surveillance Program (he covers the Fourth Amendment, FISA, and Article II). Given the question I raised yesterday, I'm particularly interested in the [Read More]


what matters politically isn't so much what power is exercised as who exercises the power Hopefully you recognise that legally, ethically, and intellectually, what matters is what power is available, not who might come to wield it. Although it's worth remembering that even if you do happen to trust Mr. Bush, he won't be in power for ever.
Cardinalsin: And certainly you realize that: a) legally, as we've seen, it's a more difficult problem; and b) ethically, it's a trickier problem still. After all, to evaluate the ethics of it, we'd have to know what the wiretapping was used for, th threats that were actually being faced, the precise method that the was being, etc. Ethically, here's a strong argument to break the law if the danger of not breaking it is greater. As for "intellectually," I have little idea which way it matters, but I'm not sure how worried I am about FISA/AUMF as an intellectual idea.
I think I basically concur (especially from my position of legal ignorance!). My point was, any time one agrees to allow the person in power to act in a particular way, one effectively opens up the way for their successors to do the same. Theoretically, that is - in practice, they do what they like until they get caught. Dunno whether I want to defend the use of the word "intellectually". If I meant anything much by it, it was just that we may well feel more or less comfortable with Bush having this power as opposed to Bubba or whoever, but we certainly cannot be rationally satisfied with that way of thinking.

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