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February 07, 2006

Spying on You and Me

When I was a California teenager, I used to roller disco. In fact I was about as good in that as in most things I do - the lower upper middle class. Which means that I was good enough to be an extra in a first rate deal. Always mindful of such matters at the ridiculous age of 19, I often made it a habit to hang out at Venice Beach and Hollywood Blvd. As a measure of my own vanity and success at roller disco, I would perform and get people to take pictures of me. These would be tourists of course, locals would recognize me, and I would always be welcome to hang out with the cool guys and girls as we skated our way into that particularly Californish oblivion. Somehow I am reminded of this by the Cameo song 'Shake Your Pants' as well as 'Gloria' by Laura Branigan.

But I was also reminded of this by my trip to Hollywood the other night as I found myself in the viewfinder of half a dozen folks with digital cameras. And I wasn't even showing off. Everybody has got digital cameras it seems. Outside of your home, it's the big bad public boys and girls. Be prepared for reality TV. I'm quite adjusted to this reality because I recognize my ability, abetted by Google and you lovely trackbackers and readers, to create a self-portrait which is better than the average Joe. That is to say while it would take a bunch of you a while to figure out what my zipcode was in 1993, it's actually published somewhere in mdcbowen.org. And because mdcbowen.org has been growing steadily for over a decade, it would take quite a bit of disinformation to destroy the public record I have created about myself. I'm not saying that it would be impossible, but that it would have to be a professionally done job, a contract of non-trivial figures would be required to undo what I have done in public.

Since I am a member of the Bear Flag League and the Conservative Brotherhood, for example, it would be particularly difficult to make the case against my character as a domestic terrorist. Hell, people believe that I follow and defend George W. Bush blindly.

But what if? What would I have to do in order to be the target of the kinds of extra-FISA spying that is going on these days? What kind of finger has to point me out? It would certainly be more than a random happenstance. What keeps me safe from the prying eyes of the government? Nothing. Absolutely nothing. I understand this. I know that every code I know everything I am could be put under a microscope. You might say that I am paranoid about it, but I think it would be more appropriate to say that I am Jewish about it. I understand that there is an almighty power that certainly capable and willing to judge everything I have ever done in my life. Whether it is God or the Government makes little difference to the extent that I discipline myself to be exactly what I intend to be. That is to say, my belief that I will ultimately be called into account for my life is a self-directed kind of thing.

It's facile to say that only terrorists should be afraid. We should all be mindful of whether our laws are just and whether they are followed whether or not our own personal privacy is at risk. I'm all for the disclosure that Congress is forcing upon the Administration. It's about time that they do their job, and while they're posing and being shrill, they are doing a decent job in giving us all something more to chew on. Nevertheless what is at the bottom of all this war on terrorism is a matter of character. Some people who believe they are only accountable to God and not to their neighbors have decided to hide their character and intent. They are, not like young American teens, shameless and wanting to be seen and admired by everyone. No they carry secret burdens and secret shames and are trying to conduct their business in secret. But we're all watching and listening and trying to ferret out those who would destroy our society and peace. Everybody has a camera. Everybody is being watched. What if the enemy is us?

In the end there's only one way to find out. Follow your suspicions and clues and expose the motives and intents of your suspects. It means everyone may be called into account. There's no better case for improving one's character than that.

Posted by mbowen at February 7, 2006 08:22 AM

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Thanks for the kind words about my writing in Body Parts.

Posted by: Turin at February 7, 2006 07:10 PM

02 08 06

Good post Cobb. What do you think of the Federalist Society's take on this stuff?

Posted by: mahndisa at February 8, 2006 02:25 AM

This is the strongest argument I see in defense of the President, which makes a good case for what I believe the purposes of his spying is - that is for the purposes of determining the nature of enemy activity.

Rivkin: I would not argue that the President, using his own authority, can bring about exactly the same results that can be accomplished using the PATRIOT Act's toolbox. However, the area in which the President's inherent power is deficient is primarily concerned with the use of any evidence, gathered as a result of wiretaps, sneak-and-peek searches, in criminal prosecutions. In this regard, the Fourth Amendment (and numerous court cases construing it) bars the use of evidence, obtained through warrantless searches, in criminal prosecutions. Significantly, to the extent that the evidence being gathered is used for non-prosecutorial purposes, the President indeed has plenary power to authorize all sorts of warrantless surveillance. This power is particularly formidable in time of war; if the President cannot gather intelligence about the very enemies -- Al Qaeda and affiliated groups -- against whom we are engaged in combat, his Commander-in-Chief powers have been entirely vitiated. It is worth noting that the President's authority to conduct warrantless surveillance has been acknowledged in dozens of pre- and post-FISA court cases; the November 18, 2002 decision of the FISA Appellate Chamber notes, after a careful review of all the relevant case law, that "The Truong court, as did all the other courts to have decided the issue; held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information….We take it for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power." (page 48). Significantly, this has also been the view of all of the Administrations since FISA was enacted in 1978; a number of them, including the Clinton Administration, have conducted warrantless electronic surveillance, by-passing FISA and relying solely on the President's inherent powers.

If, for example, the president's intent is to determine a chain of custody for the tapes that OBL gets to Al Jazeera, it makes sense to me that he would tap the cell phone of the staff of AJ to determine which of them gets the tape. Singling out that person, if they spoke to American reporters consistently, I would tap that phone too. Note that none of this is to prosecute for arrest, rather to find out who is in contact with OBL and AQ operatives - to discover the ways and means by which they operate.

The Intelligence Committee, indeed Sen Kennedy was correct in noting that prosecutions from tainted evidence - ie warrantless searches poisons the fruit, however it is not clear to me that information from warrantless searches doesn't reach the standard of probable cause, in which case a FISA warrant can easily be gotten.

So it seems to me that it is entirely reasonable that if the NSA is onto Christianne Amanpour this very moment, that without a FISA warrant, there is no actionable evidence against her for the purposes of arrest and prosecution. In other words, the only offense against her is invasion of privacy which cannot be known or used against her unless she is actually and actively involved in activity that rises to the standard of probable cause.

I think of the analogy rather like this. You're at a picnic and there are gangbangers there. You're runnning a big barbecue and feeding people you really don't know, some of whom are gangbangers. Police are staring at you through binoculars and reading your lips whenever you give a hotdog to a known gangbanger. Your communications are not being used against you personally, but they are taken without your consent. It is an invasion of privacy, but it is a reasonable invasion.

Posted by: Cobb [TypeKey Profile Page] at February 8, 2006 07:41 AM

02 08 06

Althogh certain aspects of your comment bother me, I do see your point and the picnic gangbanger analogy was perfect. Thanks Cobb:)

Posted by: mahndisa at February 8, 2006 02:04 PM