Wednesday, March 22, 2006

Straw Men and the NSA Surveillance Program

Over at, which is the foreign policy blog of The Weekly Standard, is a post calling our attention to a BBC article intimating that it's possible that the NSA surveillance program helped British police arrest the seven Britons accused of planning bombings of nightclubs, trains, or the national power grid. The BBC article notes that the jury "would be hearing from an American citizen, Mohammed Babar, who conspired with the defendants." The WorldwideStandard points out that "it would be interesting to know whether the NSA program helped snag Babar and his buddies across the Atlantic." The implication is that the NSA program is justified, legal, and legitimate because it is an important, useful, and successful tool in the fight against terror. This echoes statements made by the Bush Administration to defend the NSA program. For example, the memo released by the Department of Justice entitled Legal Authorities Supporting the Activities of the National Security Agency Described By The President argued that:

the Government’s interest in engaging in the NSA activities is the most compelling interest possible – securing the Nation from foreign attack….The Government’s overwhelming interest in detecting and thwarting further al Qaeda attacks is easily sufficient to make reasonable the intrusion into privacy involved in [the NSA surveillance program].
This argument is what's known as a straw man. The question isn't whether the NSA program is useful or successful, but whether it's legal and constitutional. And such decisions aren't made on the basis of short-term utility. In his concurrence to Youngstown Sheet and Tube Co. v. Sawyer (the Steel Seizure case), Justice Jackson wrote that “the tendency is strong to emphasize transient results upon policies...and lose sight of enduring consequences upon the balanced structure of our Republic” and that “no doctrine that the Court could promulgate would seem more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.”

Determining the rightness or wrongness of the NSA surveillance program goes far beyond the efficacy of the program. Any honest analysis must consider the implications of giving the president effectively unlimited and unchecked powers to
fight the war on terror.

[I will be presenting a paper on this very issue -- presidential-congressional war powers and the constitutionality of the NSA surveillance program -- at a conference at Chapman University School of Law entitled "Are We at War? Global Conflict & Insecurity Post-9/11." If anyone is interested in seeing this paper, please let me know. Also, the conference will be web-cast live on April 6-7. My panel on
Separation of Powers and Presidential Authority is on Friday, April 7 at 1:45 - 3:15 PM.]

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