Jump to content
Sign in to follow this  
tshuman

An Amicus Brief Worth Reading

Recommended Posts

Folks bound for NFL Nationals might want to take a look at this amicus brief addressing the NSA's electronic surveillance efforts, FISA, and Presidential powers (Adobe Reader required).

Share this post


Link to post
Share on other sites

Interesting. I probably just don't know enough about the specifics of the case (not having read the ACLU's brief), but I wonder:

 

1. Doesn't the WLF's position prove too much? If the President's power is plenary and neither Congress nor the Courts have any role in limiting it, is there no check on the Presidency? The real question relates to how big an area the President gets to stake out as exclusively his own. The amicus brief points to executive branch checks on its authority. While practically important, those are constitutionally irrelevant: If the President has plenary authority, he need not impose any executive branch checks.

 

2. It seems to me the WLF conflates foreign intelligence with national security. The cases it cites are foreign intelligence cases, and I think it cites them correctly. But "national security" is too broad a brush. If I get a phone call from my brother in England, is it subject to wiretap? What if the administration believes (based on the fact that I visit web sites saying nuclear proliferation is good and that violent overthrow is the only way to defeat capitalism) that I am not to be trusted? If the President's power is truly plenary, I don't see how there can be any limit.

Share this post


Link to post
Share on other sites
1. Doesn't the WLF's position prove too much? If the President's power is plenary and neither Congress nor the Courts have any role in limiting it, is there no check on the Presidency?
To conduct intelligence operations related to terrorism? I doubt it...
The real question relates to how big an area the President gets to stake out as exclusively his own.
Well, that's one way of putting it. Another is that the real question is how big an area the Constitution stakes out for the President... ;)
2. It seems to me the WLF conflates foreign intelligence with national security. The cases it cites are foreign intelligence cases, and I think it cites them correctly.
The NSA program is not being justified on some vague "national security" ground. It is explicitly defended as foreign intelligence gathering/analysis.
But "national security" is too broad a brush. If I get a phone call from my brother in England, is it subject to wiretap?
Depends. Does your brother play cards on Thursdays with Shehzad Tanweer or send postcards to Bisher al-Rawi? if so, then probably... ;)
What if the administration believes (based on the fact that I visit web sites saying nuclear proliferation is good and that violent overthrow is the only way to defeat capitalism) that I am not to be trusted? If the President's power is truly plenary, I don't see how there can be any limit.
It isn't at all clear to me how'd they'd hear about it in the first place. I doubt that they're looking at "prolif good" or "cap bad" websites looking for sneaky terrorists...

 

In any event, I wasn't trying to start an argument. I just thought Negs might find some useful ideas/evidence in the brief...

Share this post


Link to post
Share on other sites

I didn't take it as an argument. I agree that those debating at Nationals should read the amicus. I am totally interloping here.

 

My brother is squeaky clean. Now if you want to know who I play cards with . . .

 

I did read the amicus a little differently than you. I thought they were pretty solid on foreign intelligence being within plenary Presidential power. I thought that when they got to its application to the NSA wiretaps, they tried to collapse foreign intelligence and national security. If the taps are just of phone calls to or from foreign citizens I might be persuaded. But if the taps are of calls between American citizens but that might be useful for "national security" then it seems domestic, and out of bounds.

Share this post


Link to post
Share on other sites
Now if you want to know who I play cards with . . .
As long as it's not Sara. She's pretty shady... ;)
But if the taps are of calls between American citizens but that might be useful for "national security" then it seems domestic, and out of bounds.
Far as I know, they aren't doing that...crunching call records looking for patterns isn't the same thing as wiretap surveillance of actual conversations...

Share this post


Link to post
Share on other sites
Sign in to follow this  

×
×
  • Create New...