by Matt Barr

I spy

So what about this deal with eavesdropping on international phone calls without a warrant? (If ever I call it FISAgate, please end my life.) Well. The most obvious thing is that it lacked the common courtesy to happen some month other than December, when I could blog about it more comprehensively (and in a timely fashion). But beyond that.

Describe your hot, bubbling outrage. Well, I suspect that Prof. Reynolds' correspondent is right, and I suspect that I'm of a mind like most of my fellow citizens. At first (and, as it happens, second or third, at least) blush, I have no problem with this; and in fact I assumed they were doing something like this anyway. This of course is colored by the fact that before the last week or so I had no idea what that FISA law said. If you had told me last month that this was going on and asked me what I thought about it, I would have given it a second thought, but wouldn't have carped about it.

And you call yourself a libertarian (sort of). Intellectually, I do have a problem with the executive branch claiming plenary authority to eavesdrop on phone conversations that might accidentally involve citizens without a warrant. This is mitigated somewhat by two things. One is that, by all accounts, these wiretaps are for the purpose of intelligence, not assembling evidence for prosecution. You know, the way the Clinton administration was using them in 1994, according to his Deputy Attorney General as reported in the Washington Post at the time on page A-19. The other is that 19 terrorists killed a lot of people four years ago. The maroons who capitalize and put scare quotes around "9/11 Changed Everything" are going to be the first ones slicing and dicing the Bush administration when they don't prevent the next massive attack, so I decline to pay close attention to them.

But there's a slippery slope! No, there's almost never a slippery slope when it comes to the law in a republic. Are you saying because the Bush administraton was wiretapping overseas phone conversations between foreign nationals suspected of involvement with al-Qaeda or other terrorist groups that, as day turns to night, every U.S. citizen will soon have chips implanted in their skulls to monitor their whereabouts 24/7? There is no intervening force that can possibly stop that? Really? Right. So stop with the slippery slope.

Fine. Can you unring a bell? No. Culturally, of course there are barn doors you can't close once the horses are out, and organizations subject to law -- let's say, companies -- need to consider the future consequences of a policy allowing, say, one employee to wear sandals, or one to telecommute, because eventually everyone will be wearing sandals while working from home. Two examples out of many, none of which are the law, which, if it's working (and the courts haven't mucked it up), can be changed 180 degrees tomorrow if that's what we want. Why, when you think about it, we could have started talking about putting a stop to this as early as 2003, when certain Senators were deeply saddened about it.

The letter doesn't say anything about "deeply saddened." No, you're right, but proclaiming one's self "deeply saddened" became the way insincere poiticians feigned concern over things in the 1990s. That's what I'm alluding to.

Look, let's get to the point. Is this unconstitutional? Illegal? I can add nothing at all to the very fine analysis of those points produced by Prof. Kerr. For a more strident analysis, Marty Lederman's is useful as well.

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