Go Back to Afghanistan, Hussy!

By Jennifer Granick


My last column on the president's illegal wiretaps provoked the most
responses I've received since starting Circuit Court.

Circuit Court columnist Jennifer Granick
Circuit Court
Many of the e-mails parroted the same three debunked rationales offered by
the White House as justifications for breaking the law. There was also a
surprising amount of vitriol and name-calling. One writer called me a bimbo,
and another told me to "go back to Afghanistan" if I hated our free country
so much that I would voice concern about how our government doesn't respect
our freedoms.

Underlying all the anger, the fear and the credulity of those who wrote in
was the theme that asking intelligence agents to get court authorization for
surveillance would result in another Sept. 11.

The principle of separation of powers -- of checks and balances -- is so
fundamental to our system of government, and so familiar to anyone who grew
up here, how is it that so many of my fellow Americans can forget it
completely when the question is one of tracking terrorists?

It's true that we're living in a dangerous world. The arms industry is
producing cheaper and more portable weapons, and terrorists have benefited
alongside national armies. The internet is the most amazing tool for cheap
worldwide communication ever created, but terrorists use it alongside
activists, consumers, commercial interests and artists. The terrorists
aren't pulling any punches when it comes to using technology against us. Why
should we handicap ourselves in using surveillance tools against them?

The mistake is viewing checks and balances as a handicap. They are our
strength. Separation of powers is what makes the U.S. government a
government of laws, not of men. It's what makes the government accountable
-- to the people, and to itself. It's what protects individuals against
false accusations, what ensures that we spend our resources pursuing the
real threats to our security and to our freedom.

In recent polling -- as in my e-mail inbox -- people emphasized that the
targets of the National Security Agency surveillance weren't just American
citizens, but were collaborators, communicating with known terrorists. The
kinds of people, in other words, who need to be watched.

If that turns out to be true, then I agree -- but so does the law that our
president ignored. All the Foreign Intelligence Surveillance Act, or FISA,
requires in an emergency is that officials contact the secret court within
72 hours after performing a wiretap to show probable cause that the target
of the spying was in fact a terrorist collaborator.

The process ensures that the surveillance is being done correctly and under
appropriate circumstances.

The lessons of McCarthyism and the Church Committee reports are that people
in power will use false evidence to target perceived enemies. History
demonstrates that the executive branch makes mistakes. Juries rejected
Department of Justice prosecutions against Florida professor Sami Al-Arian
and web programmer Sami Omar Al-Hussayen. The conservative 4th U.S. Circuit
Court of Appeals has expressed concern that the Justice Department told
judges one story to keep Jose Padilla detained as an enemy combatant but
presented a different story to obtain an indictment against him. The FBI
pursued an Oregon lawyer for the Madrid bombings long after Spanish
authorities told them that they had the wrong man. And it was only because a
judge was paying attention that we learned the Justice Department has
brought unsubstantiated terror charges in several cases.

The Bush administration isn't the first to make these kinds of mistakes and
it won't be the last. But it is alone in its insistence that its judgment
and discretion, despite these errors, should not be reviewed by judges -- or
questioned by the public.

Getting a warrant takes more time and effort than not getting a warrant. But
that extra effort guards against mistakes. And when there is not enough time
to put a warrant together for an otherwise valid interception, FISA provides
a 72-hour, fail-safe mechanism.

Perhaps there will be rare occasions when three days is not enough. The way
to deal with these exceptions is not to throw the rules away. We know that
illegal, warrantless surveillance has happened in the past and will happen
in the future. But the rule of law must remain our guiding principle.
Breaking the law and accepting the consequences is sometimes part of doing
the right thing. But most of the time, it's not.

There is a difference between falling short of what the law requires --
while taking appropriate responsibility later -- and deliberately
instituting policies designed to justify and support a failure to act in
accordance with democratic principles. As author Richard Thieme put it when
writing about proposals to legalize torture, this is the difference "between
a society that can't always live up to its ideals and one that has forgotten
where it put them."

- - -
Jennifer Granick is executive director of the Stanford Law School Center for
Internet and Society, and teaches the Cyberlaw Clinic.

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