Many have written on the (in some fashion) domestic warrantless national security wiretaps as have I. Various people put convincing arguments forth that they were unnecessary, illegal, unconstitutional, and an impeachable offense.
The counterarguments, though not all as unreasonable as some accounts imply, are at best incomplete and not really satisfactory (see comments) as defenses. The various criticisms of Cass Sunstein's guarded defense (in its more restrained mode, leaving open enough caveats to satisfy his liberal fans ... but weak-willed Liebermanism is just not satisfactory) also warrant some perusal. [He apparently is a popular cite and Krauthammer et. al. has used his hesistance to their benefit.] Ironically, one of them* was by a fellow professor who soon after (see same website) put forth a rightly criticized duo of posts passionately opposing the recent Intelligent Design opinion!
My concern is basically threefold: the secrecy, the lackluster press coverage, and the excess claims of executive power. Prof. Colb hits a key issue that in some fashion affects all three:
To be sure, bias is not the same thing as dishonesty (although a bias can certainly give rise to dishonesty, such as when a defendant's mother provides a false alibi in an attempt to save her son from the death penalty). To be biased, simply put, is to have a set of loyalties and interests that could interfere with one's ability objectively to process and measure facts. (Most parents, for example, believe that their children are above average, but they cannot all be right). ...
The warrant requirement is a critical component of our democracy. Right now, it ensures that someone outside of the Bush Administration might be in a position to criticize and veto decisions that could be biased, mistaken, and ultimately fatal to the freedom that Bush and his critics alike hold dear.
This hits a key issue. Secrecy is a problem because a republican democracy like ours requires some degree of openness and checks and balances.
This is also why ... disposing of their Pentagon Papers tradition of the past ... the NYT's delay of coverage (and somewhat tame accounts once actually deigning to inform the public) is so troubling. Ditto the lack of true congressional oversight and input -- as an expert in the area noted, just informing a "gang of eight" is not enough, especially since they are by law required to keep some communications private. As usual, quite a few concerned accounts do not come from the stereotypical "liberals" and so forth, but by hard to stereotype people in the know.
[The expert also criticized the absurd claim that requesting authority from Congress and/or the courts, especially the latter, would somehow be a threat since the enemy would know what was going on. Not only are FISA court proceedings secret in respect to such sensitive issues, but it is dubious indeed that said enemy does not realize that we are listening in. I might also refer the reader to Justice Black's opinion in the Pentagon Papers case: "The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic." Our current leaders, I guess, are not quite as secure and dare I say "manly" as those the justice spoke for.]
And, the reason for such checks is in large part because of bias. This is spun by some as a petty or partisan claim as well as a suggestion that basically the professionalism of the people involved are being called into question. But, as the quote suggests, this is bogus. Surely, in this case, "bias" as defined here is not the sole problem -- more insidious forces are at work. But, the Constitution understands that some degree of bias is inherent in the system, in fact, that it is to some degree useful -- interest vs. interest. But, biased interest it clearly is, requiring checks and balances. This is the ultimate problem with an ultrapowerful executive ... and why claims like Prof. Yoo's can be quite easily attacked with orginalist sounding arguments.
To return to an earlier point, focusing on the President's overreaching is only half the story. As Justice Jackson once said, Congress is ultimately responsible for not losing its power vis-à-vis the executive ... he said as much in the key case of Youngstown, which attacked quite similar claims of inherent executive power during wartime.** In fact, the main opinion even mentioned Truman's claims that existing law was too cumbersome, while a dissenting opinion argued no law specifically forbid him from seizing the mills and that Truman was forthright about what he was doing. No wonder various senators asked Judge Roberts his stance on the case during the hearings.
I'll add that other institutions, including the press and the courts, also has to be very careful with their prerogatives as well. This too was voiced by many Framers ... who distrusted a powerful king, but knew the executive still needed to have some true "energy" as well.
But, with the proper checks. I refer again to the Pentagon Papers case in which not only did various papers print chunks of the material (showing some caution) but the courts ultimately upheld their right to do so. At about the same time, limits on executive power to domestically obtain information without warrants also was put forth. The current actions by all three parties leave something to be desired, but perhaps pushed by a fourth ("We the People"), perhaps some life is left in them yet.
So, I guess I'll add a fourth -- a need for a strong and opposition response to this clear violation of our civic/constitutional values, including rejection of halfhearted efforts (this does not mean agreeing with all aspects ... as usual, there is just so much to oppose). Value concerns do not just apply to wanting gays not to marry or promoting sectarian views on abortion. They apply to basic democratic and republican (both small letters) values as well.
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* He noted that: "As revised after -- I said after -- 9/11, FISA comprehensively regulates wiretapping to gather foreign security intelligence. Under this statute, the Attorney General may in some situations authorize wiretapping without a court order for as much as a year, provided no 'U.S. person' is likely to be overheard." His ID posts can be found on the main page of the link.
** He also noted that "the great purposes of the Constitution do not depend on the approval or convenience of those they restrain." This applies to all parties here, including Republicans in Congress loathe to go against their putative leader. Jackson said this in his dissent in Everson, the school bus case.