Wednesday, January 30, 2008

Who says we shouldn't require warrants for wiretaps?

In the pages of the Wall Street Journal, Cato Institute staffer and supposed libertarian Roger Pilon made the case for granting President Bush's request for essentially unlimited surveillance power free of any significant oversight.

Wait. That can't be right.

Crap -- it is. Read Pilon's own words:

Today the Senate takes up a bipartisan surveillance authorization measure that's already passed the Intelligence Committee. The clock is ticking. This Friday a temporary law called the Protect America Act will expire. If Congress does not act before then, the president's statutory power to prevent terrorist attacks will be seriously compromised.

This dangerous situation should never have arisen. From the beginning, presidents have exercised their Article II executive power to gather foreign intelligence — in war and peace alike, without congressional or judicial intrusion. As our principal agent in foreign affairs, the president is constitutionally bound to protect the nation. For that, intelligence is essential.

The rest of the column lays out the case for why Congress and the judiciary should butt out and leave the executive branch to the serious business of eavesdropping on people's phone calls -- at least, when the words "foreign intelligence" can be invoked. It's a breathtakingly imperial argument of the sort I expect to see coming from the pen of an AEI staffer or a Weekly Standard scribe -- not somebody who heads up constitutional studies for Cato.

To give Cato its due, the whole place hasn't gone blood-and-soil on us. On Cato's blog yesterday, Timothy Lee, explicitly rebutting Pilon, argues that Congress should definitely provide for judicial oversight of surveillance operations, if only to make sure that the president doesn't engage in wholesale civil rights violations under the screen of "foreign intelligence":

Roger’s position appears to be that neither the courts nor Congress may place any restrictions on domestic surveillance activities that the president declares to be related to foreign intelligence gathering. But that’s not good enough. Without judicial oversight, there is no way to know if the executive branch is properly limiting its activities to spies and terrorists, or if they’ve begun to invade the privacy of petty criminals or even law-abiding individuals. This is no hypothetical scenario. The FBI conducted extensive surveillance of Martin Luther King Jr. and other civil rights and anti-war leaders in the 1960s and 1970s, which was one of the reasons Congress enacted new safeguards in the first place.

Lee didn't have to dig too deeply to uncover abuses committed by the executive branch in the past; surely Pilon is just as aware of why Congress imposed judicial oversight on eavesdropping operations to begin with. Yet, in the Journal column, Pilon makes it sound as if Congress was just being spiteful by requiring that Fourth Amendment protections apply to electronic searches as well as to physical pawing through people's sock drawers.

If Roger Pilon is going to abandon the cause of liberty, can't he come up with a better argument to make his case?



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