Wednesday, January 04, 2006

Riddle Me This....

Though most tend to lurk at this site and avoid the comments section, I know from the comments section itself and the e-mails that I receive from non-commenters, that TIA has a pretty intelligent and eclectic (politically speaking) readership. So I would like to pose an open question to some of the more conservative/right-leaning readers, or anyone else that would be willing to take a shot (question courtesy of Glenn Greenwald as flagged by Atrios):

Can anyone - anywhere - explain, just a little bit - just one time - how "national security has been damaged" by revelations that the Administration was [secretly] eavesdropping without FISA-required warrants and judicial oversight rather than [eavesdropping] with them?
Remember: with or without knowledge of Bush's violation of the FISA law, any aspiring terrorist who was paying attention to the legal regime surrounding surveillance was already on notice that the US government could conduct surveillance on them through the FISA law after acquiring a FISA warrant (the fruits of a published and publicized law). Such observer would also know that the courts associated with the FISA law have a track record of approving almost all government requests for such warrants.

Those who weren't paying attention to the legal regime surrounding surveillance in the United States were probably acting under the assumption that they were being monitored anyway - at least after 9/11 and the ratcheting up of the anti-terrorist laws and focus. And if they hadn't assumed that the US could monitor their communications, wouldn't any discussion of the FISA law accomplish essentially the same thing as the NY Times disclosure? But should we punish or hold anyone accountable for mentioning the existence of a public law that the President himself has touted on numerous occasions?

So how exactly would knowledge that Bush is bypassing the warrant process affect the aspiring terrorist's behavior?

Is there an argument to be made that:

1. A terrorist would have been willing to talk openly on the phone or send other forms of sensitive electronic communications when: (i) he/she knew that a warrant to monitor such communications was required; and (ii) such warrant would almost always be obtained from a FISA court - even retroactively.

2. But now that the NY Times has revealed that Bush has been bypassing the FISA court warrant process, such aspiring terrorist will cease such incriminating communications? No more communicating via these means because Bush doesn't need a FISA warrant anymore - even though obtaining one is as pro forma a process as could be imagined?

What combination of risk/reward calculus would lead one to engage in the potentially incriminating behavior under scenario 1, but not scenario 2?

The only plausible line of argumentation that I could come up with would be if the NY Times article gave away sensitive information regarding the means/sources used to conduct the controversial survellance - where such surveillance methods would not otherwise be known, knowable or assumed by potential terrorists. Problem is, the Times article didn't disclose any such methods or sources, and in fact, Bush himself has given many more details on the topic than the Times ever did. Should we accuse him of treason?

Please, someone enlighten us all.

(Similar question posed by Ted at Crooked Timber)

<< Home

This page is powered by Blogger. Isn't yours?