Perhaps I wrote too soon? It seemed certain last week that the foiling of the apparent plot by young Pakistani-British Muslims to blow up airliners with liquid explosives was not only a good thing, but that it had been accomplished through old-fashioned gumshoe police work rather than fancy new police-state-like surveillance techniques. A similar situation in the United States, I argued, would no doubt have resulted in judges issuing warrants, without any need to resort to enhanced government powers under the PATRIOT Act, or surveillance techniques like the program of unwarranted wiretapping of U.S. residents by the National Security Agency.
Now serious questions are rising in the UK as to whether it was all that righteous a bust after all and the incident is being used as justification for new and more intrusive surveillance and punishment techniques. Meanwhile, in the United States, especially in the wake of a ruling by a U.S. District Court judge that the NSA surveillance program is not only illegal but unconstitutional, a few lawmakers are claiming without offering any evidence or other justification that the program maybe just maybe had something to do with squelching the plot in the UK and is essential to preventing future terrorist plots from succeeding.
I should have known better than to imagine that even for a short period of time a government any government could get it right when it came to protecting the liberty of citizens, let alone balancing liberty against the constant impulse of nation-states to increase their power and purview at the expense of ordinary citizens. The impulse to grab power will take precedence every time.
Not So Righteous
The foiling of the apparent liquid-explosive plot is getting more complicated day by day in great Britain. Two of the 24 arrested last week have been released. The alleged al-Qaeda link is looking shakier than before, though it may turn out to have been significant enough after all is said and done. Most significantly, it is looking as if the police may have jumped too soon on this one, in part because of a probable accomplice to the plot who was captured and almost certainly tortured in Pakistan, and in part because the Bush administration got impatient.
It’s coming out now that an attack was nowhere near so imminent as early reports had led us to believe. None of the suspects had bought airline tickets. Some hadn’t even acquired passports. British sources say the police believed that one UK-based suspect was ready to conduct a “dry run” to check on the feasibility of actually carrying out the plot. As blogger Andrew Sullivan puts it, “British authorities had wanted to let him go forward with part of the plan,” which might well have led to more solid information and more suspects, “but the Americans balked.”
Rashid Rauf, 25, was the Pakistani nabbed by the Pakistani police and probably tortured. His arrest may well have been a factor in the decision to nab the other suspects earlier than might have been maximal from a police/intelligence perspective, as UK authorities feared that the London conspirators would become suspicious and perhaps go more underground if they lost contact with somebody deemed to be a central figure in the plans. Whether it was that factor or American impatience, the result could turn out to be problematic.
The authorities now have no solid evidence of passports, tickets or even prepared explosives. Although new information could come out, it seems now that they knew of only one alleged plotter planning a “dry run,” though they don’t seem to have known when. Snatching the plotters now may have forfeited subsequent additional evidence or intelligence, and could even make a successful prosecution much more difficult, since so little solid evidence is available.
Meanwhile, the incident has increased support for a possible law to hold terror suspects for up to 90 days without filing charges, as Prime Minister Tony Blair had really wanted. In the just-passed terror legislation, he had to settle for 28 days of incarceration without charges, which in itself is a substantial encroachment on proper due process. British authorities have requested extra time to question the suspects. And the EU, alarmed by it all, is ready to agree to more intrusive measures, including possibly banning Web sites that are alleged to promote terrorism or that offer details about bomb making.
In a way, this week’s developments in the U.S. are not directly related to the way things are playing out in the UK, but politicians like House Majority Leader Denny Hastert have chosen to connect them, so it’s important to deal with those issues.
The decision by U.S. District Court Judge Ann Diggs Taylor in Detroit, holding that the National Security Agency’s unwarranted surveillance program on U.S. Residents in contact with suspected terrorists overseas is not only illegal but unconstitutional under the First and Fourth Amendments, may not stand up in the course of the appeals process for various reasons. Nonetheless it is a welcome opening to an essential discussion.
How do you call a president to account, short of impeachment, if he violates a law passed by Congress or the Constitution? How do you terminate an illegal program or modify it so it operates within the law? In the United States the courts should provide one possible answer, but getting there through the courts may prove more difficult than might be expected.
The NSA’s program of wiretapping U.S. Residents suspected of being in contact with terrorists overseas, established and continued for nearly five years in secret before being exposed by the New York Times last December, does raise serious constitutional and legal questions. They deserve serious discussion and examination, and court challenges to the program can be part of the process, but Judge Taylor’s decision might not prove the vehicle through which it gets done.
Groping For Accountability
The Fourth Amendment, of course, requires that all searches be “reasonable” and that search warrants be issued only upon demonstration of probable cause. Courts have ruled that wiretapping and other forms of electronic surveillance are subject to these constraints. They have also ruled that some searches may be conducted without warrants, but not many.
In 1978, Congress, in response to public exposure of prior abuses against domestic critics of the Vietnam war and other policies, passed the Foreign Intelligence Surveillance Act. It established a secret court to handle requests for warrants to surveil U.S. Residents in conjunction with national security or espionage investigations. The act specifically declared that its procedures were the only way the government was allowed to spy on U.S. Residents
So did the NSA surveillance program violate the Constitution and the law? Judge Taylor (a Carter appointee) ruled that it did.
I talked to Robert Levy, a constitutional scholar at the Cato Institute. He told me he didn’t think the case against the surveillance program based on the Fourth and First Amendments was a strong one, and would probably be thrown out by an appeals court. My own reading of Judge Taylor’s decision, which admittedly dealt only briefly with countervailing arguments, leads me to think the case might be stronger, but Bob is an experienced lawyer as well as a student of the Constitution, and his opinion is not to be dismissed out of hand.
There’s a Catch-22 in operation here. Bob told me that to permit surveillance without warrants, which is not forbidden in all cases, requires a balancing of circumstances and exigencies, which in most courts is an extremely fact-dependent process. Even though Judge Taylor looked at some classified information made available to her by the NSA, however, she couldn’t use them beyond dismissing the government’s claim that “state secrets” were needed to litigate the case to buttress her arguments about the program violating the Fourth Amendment.
When the facts are kept secret, it’s difficult to use them to balance the interests.
However, the case that the program violated the FISA law is much stronger. The fact that the administration kept the program, which bypassed the secret FISA court and eavesdropped on an unknown number of Americans, secret for almost five years suggests that deep down the government knew this perfectly well. The fact that it didn’t bother to make the case that the FISA law was inadequate in the post-9/11 world and ask Congress for new laws to make this extraordinary program of unwarranted surveillance legal, buttresses the case that it had (if anybody in this administration is capable of such a thing) a guilty conscience, despite all the bluster after the program’s existence was exposed.
However, if it was illegal, how do you stop it?
This case could well evaporate on the issue of standing whether those who sued demonstrated sufficient concrete harm to themselves to have the courts take up their claim. The ACLU assembled a group of academics, journalists and attorneys who had dealings with people in the Middle East. All presented affidavits suggesting that their sources/contacts/clients in the Middle East became reluctant to talk on the phone after the existence of the NSA program became known. However here’s the Catch-22 none of them could prove that they had actually had their phone calls intercepted or listened to, let alone that it had done them concrete harm, because the program was and is kept secret as to details.
Judge Taylor granted the plaintiffs standing but an appeals court could insist on a tighter standard.
Nonetheless, Judge Taylor’s decision is a welcome beginning to a discussion of how a democracy can keep a president with an aggressive approach to his “inherent powers,” bound by the laws and the Constitution. One would hope the courts would be a help but they might not be able to consider a case if plaintiffs can’t demonstrate standing to go to court with something more substantial than the plaintiffs in this case had.
Congress could act to restrict presidential power, but so far it has shown little inclination to do so. And it would hardly be surprising if this administration, after an unlikely rebuff from Congress, simply established another program in secret and didn’t bother to tell any meddlesome folks with anachronistic ideas about civil liberties about it.
Maybe a congressional Democratic majority installed in November would be a little bolder, but there’s no guarantee of that.