Media response to the Bush administration’s defense of wiretap legality reminds me of something Dan Rather supposedly said on CBS Evening News on March 3, 1995:

Last minute maneuvers in congress can make a mockery of presidential decrees.

It’s the sort of thing a newscaster couldn’t get away with nowadays, but back then the Internet was in its infancy, and web logs were files listing server requests (and webmasters could read through every entry). Rather was complaining that Congress had invalidated a unilateral decree by the Clinton White House that blocked the importation of some firearms into the United States.

On the one hand, it is easy to laugh and ask how it feels when it is done by a president you don’t like. But on the other, there is too much power vested in the presidency today, and this is an example of why that won’t change. No one wants to take the power away from the presidents they like. They just want to complain when presidents they don’t like make use of that power. And complain about everyone who complains about a president they like making use of that power.

When the Clinton administration supported (and used) a far wider and far more intrusive NSA spying program, the New York Times, for example, supported it by saying that “few dispute the necessity of a system like Echelon to apprehend foreign spies, drug traffickers and terrorists.”

Quite a few did dispute it, but this was before the web took off. The New York Times could safely ignore them. Sometimes I feel too much like old Benjamin in Animal Farm. This, and the media hype around it, and the partisan bickering, is nothing new. I can’t imagine what people who lived through Nixon feel. I’m beginning to glimpse why Hunter Thompson killed himself.

A backwards constitution

Part of the problem is that our constitution is supposed to be read as granting powers to the government: our government, including the president, can do nothing unless the constitution lets them do so. But we tend to read it as restrictive, that is, that our government has wide rights unless restricted.

So, for example, we have a double standard for rights within the United States and outside of the United States. This may be coming into play this time, as part of the justification appears to be that all intercepts occurred outside of the United States. But were they outside of the United States because they were on a satellite (as just about all communications today are) or because they were intercepted on arrival in another country? And should it matter?

If Bush’s authorization was for spying between Americans and someone overseas, it was probably legal. If it didn’t involve tapping but was just data gathering, it was probably legal. If it was all performed outside of the United States--such as by satellites--it might also have been legal. The difference between “in America” and “outside America” is becoming blurred. And it blurs even more if we start including as “outside” those who are in physical proximity to people who are in contact with people who are outside.

Presidents have been claiming the authority to authorize no-warrant searches since at least the Carter administration.

Further, from Carter to Clinton, Reagan to Bush, and earlier, presidents have had the power to make rules with the force of law. Or, to quote Clinton aid Paul Begala, “Stroke of the pen. Law of the land. Kinda cool.” Begala was talking about executive orders. Things that the president does that look like laws, but aren’t called laws because then they would be unconstitutional: only congress can make laws.

Bush may or may not have overstepped his bounds this time. But the bounds are far too wide regardless. The executive branch has become a huge portion of the federal government. From the Forest Service to the Secret Service, from the FBI to the DEA to the IRS and several other three-letter agencies, crossing it can land you in jail and get you killed.

The accidental arrest

“Accidental” surveillance is generally perfectly admissible and unpunishable. Police can and do abuse the system to stop people on “hunches” for obscure traffic laws--or the expectation that everyone violates at least one of our many traffic laws. Warrants allow searching only for specific reasons, but evidence about unrelated crimes is not off-limits. If police accidentally see evidence of a crime unrelated to the warrant, it’s okay to make an arrest. DUI roadblocks are considered a success even if they don’t catch anyone driving under the influence. If they grab seatbelt violators and pot smokers accidentally, that is legal also. And it adds to their revenue.

But according to Richard A. Posner, accidental arrests are not enough. Law enforcement should also be able to spy on accidental witnesses:

The Foreign Intelligence Surveillance Act makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities. That is too restrictive. Innocent people, such as unwitting neighbors of terrorists, may, without knowing it, have valuable counterterrorist information. Collecting such information is of a piece with data-mining projects such as Able Danger.

Many of the relevant bits may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.

Law enforcement should be able to spy on you because of what your neighbors do? They should have secret access to the financial records and conversations of innocent people because there might have been interactions with another suspect who just happened to be nearby (and who themselves haven’t been found guilty)?

Posner later argues that:

Law in the United States is not a Platonic abstraction but a flexible tool of social policy. In analyzing all but the simplest legal questions, one is well advised to begin by asking what social policies are at stake.

Flexible tools of social policy are something our constitution was meant to prevent.

Phone records

The new NSA program is even “better”. It wasn’t about monitoring at all, but about the phone companies “voluntarily” turning over records that they already kept. There are records about what we do all over the place; this is the same thing that used to bring librarians up in arms with regards to patron records. This is the sort of thing that makes people afraid of cookies on the web.

Law enforcement buys these records in the same way that other businesses do.

When I was in college, we discovered that we could access the student telephone directory database file directly, and copy it to our computers. We immediately realized the privacy implications: that we could keep a copy of each semester’s database file and cross-reference changes. Find out who lived with whom, who no longer lives with whom, and, with the appropriate name-to-gender software, who was having sex with whom.

Nowadays, that’s called data mining, and there’s a lot more such data available. These phone records aren’t just the phone numbers but the records of actual calls. Data mining on these records can bring out a lot more than just who you shared a phone number with.

When we combine the extensive power of the executive branch with the blurring of national boundaries and communications and the vast activity records already kept as an incidental part of business, the potential for abuse is huge.

Laugh while you can

People who laughed at right-wing paranoia during the Clinton administration are now paranoid about Bush. If we would take this power from the presidency, we must rise above partisan bickering and ask that it be taken from all presidents, not just the one who happens to be in the other party. And keep asking after Bush leaves in 2009, no matter what we feel about the person who takes over from him. If someone truly cares about privacy, and not just about hating the current president, they should not give up when this president leaves and one they like takes over.

People who were paranoid about Clinton justify Bush’s actions; those who justified Clinton’s privacy invasions are now paranoid about Bush’s. If want to preserve our privacy, we need to develop longer memories.