February 17, 2006
Sen. Wyden on warrentless surveillance
SLPR hosted a panel on domestic surveillance today, keynoted by Sen. Ron Wyden, and with Pam Karlan, Kris Kobach, Alan Morrison, and Laura Donohue on panel. Sen. Wyden’s keynote mostly revolved around a call for better information from the White House and NSA about what exactly is going on, and a reminder that the White House has a duty to respect the balances Congress has struck in the past—i.e., FISA. He also spent some time burnishing his technocratic cred (Even if it wasn’t related to surveillance, my heart grew three sizes when he mentioned net neutrality).
Of course, this was all happening in the shadow of the Senate Intelligence Committee’s refusal to hold an inquiry into the administration’s warrantless surveillance. The Senator wouldn’t go into detail on that… but if the Senate isn’t going to pony up (and it’s unclear what the House will do), where’s this information going to come from? At Drew’s suggestion I mentioned the words “special prosecutor,” but he didn’t rise to the bait.
Listening to the panel highlighted just how murky the waters are. Kobach gave the administration line: warrantless surveillance for national security purposes is within the President’s inherent authority under the war and foreign-affairs powers. He went on to question FISA’s constitutionality—if the authority to protect the nation is inherent to the President, where in the Constitution is Congress empowered to limit that authority? Senator Wyden mentioned the power of the purse; no one really followed up. Kobach went on to argue that even if warrantless surveillance isn’t within the executive’s inherent power, it’s authorized by the Post-9/11 Joint Resolution. But it begs the question: What in this world wasn’t authorized by that Resolution? And who is going to enforce those limits? How? Excellent questions.
And it was great fun to hear Alan Morrison point out that, even if a lot of these intercepts aren’t being actively scrutinized (i.e., they’re going “unflagged”), they are almost certainly being kept… and to what end? The Privacy Act and the Federal Records Act have an application here that no one’s talking about.
Posted by Rob Courtney at 06:17 PM