Obama Law

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An email conversation about the news of the day.
Dec. 9 2008 7:40 PM

Obama Law

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I respectfully disagree with Emily's criticism of the overhaul of surveillance law last summer. Unfortunately, the details are so complicated and intricate that I doubt any of us fully understands FISA or the 2008 amendments. Certainly, I don't. But after consulting people who do understand, I argued in my most recent National Journal column that, in fact, the government still has too little power to intercept communications and at the same time too few safeguards against misuse of the information.

As I argued in my column last week, FISA is badly outdated. It has always required judicial permission based on "probable cause" to target calls and e-mails between parties inside the United States but not calls from or to targets outside the United States. (The rules for e-mails have been different, for no very good reason.) But it is often impossible to tell where the parties to a cell call or an e-mail are. In addition, "the surveillance it authorizes is unusable to discover who is a terrorist, as distinct from eavesdropping on known terrorists—yet the former is the more urgent task," as Judge Richard Posner has written.

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Obama, a harsh critic of Bush's secret, unilateral defiance of FISA's rules from 2001 through 2005, wisely broke with most liberals by voting in July to relax those rules. He should propose a complete overhaul and simplification of the almost incomprehensibly complicated law. It should be easier to use sophisticated computer data-mining programs to fish through millions of calls and e-mails for signs of possible terrorist activity. At the same time, privacy protections should be improved by tightening the rules to detect (through use of audit trails) and prevent unnecessary dissemination or retention of the intercepted information and to punish severely any misuse of it. An additional privacy protection, suggested by Posner, would be to forbid use of this information for any purpose (including, say, tax-fraud prosecutions) other than to protect national security.

In response to Dahlia and David, some clarifications: In opposing any big, public criminal investigation into the strong evidence that the entire top echelon of the Bush national-security team approved water-boarding and other allegedly torturous interrogation methods, I did not mean to rule out a truth commission. Rather, I qualified my previous advocacy of a truth commission by noting that some Obama people fear it would create partisan animosity that could hurt his forward-looking agenda.

Nor did I mean to suggest a pass for the people responsible for Abu Ghraib, the U.S. attorney purge, or partisan hiring at Justice. Indeed, all of these matters have been, or are being, investigated criminally and otherwise. They are thus covered by my earlier assertion that the DoJ needs to finish up all pending investigations.

At the same time, I believe that all plausible Abu Ghraib prosecutions played themselves out long ago. And although I know very little about the U.S. attorney purge or the partisan hiring, I have seen no evidence that the firings or hirings themselves involved criminality—as distinguished from sleazy and unethical conduct that may have violated civil laws—on the part of high officials. In this regard, David, I would be grateful if you could elaborate on your view that there is some modicum of evidence showing felony-level criminality on the part of former Attorney General Alberto Gonzales and possibly other former Bush administration officials.

Whether there is substance to the related allegations of perjury and other cover-ups by former officials, including Gonzales, is a different question that can be answered by only the kind of close factual inquiry that is now under way. I certainly agree with David that the Justice Department should prosecute if there is strong evidence of criminality by these officials.

I respectfully disagree, however, with David's view that Dannehy needs to be fully independent rather than to have her ultimate decision approved or rejected by a political appointee. The now-defunct independent-counsel statute and its administrative analogues seemed like good ideas in the wake of Watergate. But more than 20 years of experience with it convinced many of us—including Democrats outraged by Ken Starr—that assigning a special independent prosecutor to go after a single (or a few) specific targets, with no competing demands on the prosecutor's resources and no admiring headlines if she decides not to prosecute, is a formula for overzealousness.

I plead ignorance on most of the matters that Joe discusses. But I have my doubts about whether racial discrimination in employment and voting are all that widespread these days—doubts that were reinforced by witnessing the supposedly impossible election of an African-American to the presidency with more support from white voters than John Kerry had in 2004.

What Harvard sociologist Orlando Patterson said in 1991 has become truer and truer ever since: "America, while still flawed in its race relations … is now the least racist white-majority society in the world; has a better record of legal protection of minorities than any other society, white or black; [and] offers more opportunities to a greater number of black persons than any other society, including all those of Africa."



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Stuart Taylor Jr. is a National Journal columnist and Newsweek contributor.

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