Unlike Lithwick, who I think is trying too hard to shoehorn her view into a literary device, I think the government's arguments are more colorable than she gives them credit for. I see a noticeable difference between "utmost deference" and "absolute deference," the former being strict scrutiny by another name and the latter asks judges to ignore what the executive branch is doing. I also see how forcing the government to describe what it is not doing can be a secret just as much as knowledge of what it is doing can be a secret. Either one helps describe the bounds of the government's capabilities, informing terrorists and foreign actors either of what tactics will likely work (because there is no program to detect/intercept it) or will not likely work (because there is). These are colorable arguments. If they weren't, the judges would have been talking about sanctions, not the issues.

I also see that the government is essentially forced into making these arguments, because if they don't and something bad happens and someone can show that the bad thing could have been stopped if only the government pressed Project XYZ as hard as possible, heads roll. It is easy for us to say that these programs are not worth the price of freedom, because I (and Lithwick) don't have to worry about getting calls from the mothers and children of those who die in terrorist attacks. Nobody pickets our offices. Nobody buys the property next door to our house and sets up a long-term protest camp. But I wonder whether, if we really were the ones that everyone would blame should something go terribly wrong, whether Lithwick and I would find ourselves before a skeptical three-judge panel making the exact same arguments as the officials she derides, knowing that it's okay if we're overturned -- at least we've covered ourselves. And then we go home thanking the adversarial process for doing its job.

I've just never heard a credible arguement against getting warrants for wiretapping. As far as I have heard it, they are not difficult to get some judge to sign off on, you can begin tapping before the warrant is issued, and it stays secret anyways.

That, to me, is more of the issue. Just get the damn warrant.

I agree. But if that makes getting a warrant nothing more than a rubber stamp process that we can simply assign to a monkey or a machine, then it loses all meaning. To tie this in with Lithwick's piece, getting a warrant should not entail absolute deference to the police/NSA/other agency seeking it. Otherwise, why not just have agents write "WARRANT" on a napkin and use that instead, if it suits them?

The warrant process is not quite as easy as you suggest, and if systematic abuse were going on it would likely be spotted. But half the benefit of requiring warrants (even if they are usually granted in emergency circumstances) is in making sure that authorities have to go through some kind of formal procedure/hassle, rather than just combing indiscriminately through the phone calls/records of anyone they choose, for whatever reason.

Well thats a good point. 2 things are at stake here. First is a general respect for the rule of law and the due process that the Executive branch needs to respect. If they can't file a warrant today, what are they going to do tommorow? Its a scary precedent.

Secondly, and more specifically, when you file a warrant, it acts as a public record of what the administration is doing. Now, of course, the warrant is secret, but it is a secret that is kept by a judge, not just locked away in Cheney's office. As a legal document, should an case like the one the article refers to be underway, the facts of the wiretapping can be brought to light. So if the warrant was just rubber stamped, we can at least say, "look, its just a cocktail napkin!" Not so without any disclosure at all, which is currently the case.

Even if its only marginal, its accountability.

Exactly. People who actually have to think about the lives they affect with their decisions weigh the projected outcome with the proposed benefit. If some Islamic charity is being monitored by the government and it is, infact, giving money to terrorists, then you would imagine they don't want the government to know about it. And there are some constitutional issues at stake here, but is it worth billions of dollars and thousands of lives to say that Islamo-charity XYZ can make calls in peace? Is it worth the peace of mind and security of millions of everyday, law-abiding Americans to let terrorists make calls without the government being able to follow them and hear about what is going on?

Like I've said before, that's why Lithwic is a reporter of court cases and not the lawyer making them or a judge deciding them.

Seems to me like you should go out in your backyard, dig yourself a nice deep hole and construct yourself a thick-walled bomb shelter and move your cowering little behind right in if your so afraid. Then those of us who cherish our freedom can go about our lives the way the founders of this country did, it the face of some danger and uncertainty. There definitely is a price for freedom and perhaps that price is not giving up our civil rights like our president insists but instead it is learning to live in a changed and slightly more dangerous world. Where do we stop once we start down the path of dismantling the constitution in the name of security? Tap 'em without a warrant. Jail 'em without charge. Torture 'em without remorse. Sounds to me like a great way to fight a war on the american way of life not the war on terror.

As debates and arguments always do, this one wanders a bit, passing over, under, around and through the question of just whom is being wiretapped, etc. The discussion of limiting executive power seems on hinge on who are the subjects of domestic spying, and how numerous they are.

Many Americans buy the domestic spying because they believe it's limited to a small number fo people, and to people most of don't like that much in the first place -- guys with beards and funny hats. They believe this because the president tells thems so. But in cases where the true extent of domestic spying programs have been revealed, they turn out to be wider and more intrusive than officially described.

It's clear this administration would like to spy on everybody, then sift the information to see who warrants (without a warrant) closer inspection. When they reviewed phone records, for example, they looked at all the calls they could get their hands on, then homed in on people who made frequent calls to particular individuals, organizations, countries, etc. One has to wonder how far down the list they might have gone, or might still go.

For those of you who think this is okay because you like Bush and support what he's doing, ask yourselves how you'll feel when Hillary sits in the Oval Office and operates the levers of the unfetterred spy machine left to her by George W. Bush.

Could this be the Bush legacy? Passing along a vastly more powerful and secretive executive branch, along with a Supreme Court that appears eager to grant more power to the executive? Building a big, unassailable fortress for President Hillary Clinton? Would that be ironic, or what?

This isn't about whether or not to wiretapp suspected terrorists. Its about whether to do it legally or illegally, and whether or not we want to allow the Executive the ability to continuall yuse national security as a legal arguement for avoiding accountability.

I don't see how obtaining warrants impedes the process of doing justice and protecting people.

...is all the Bush administration is asking for. Not becasue it keeps us safe, but because they think they can do anything, any time, anywhere, against anyone all in our name with no accountability, and no culpability.

This is simply wrong.

You can parse it all you want, you can rationalize it all you want, but in the end all the administration has offered is secrecy for it;s own sake.

As to legacy, this seems apropos:

we are in a gradual transition from a National Security State to a National Surveillance State. We pointed out that although the Republicans got first crack at constructing many features of this emerging state, it would be a bipartisan effort. The only issue will be what kind of national surveillance state we would have, and whether government would put in place the appropriate checks and balances to protect civil liberties, prevent the multiplication of secret laws and secret methods of enforcement, and restrain an increasingly ambitious executive.

Cf. The modern power given to the executive in the area of national security and foreign affairs, leading Justice Stewart in the Pentagon Papers case to say:

In the governmental structure created by our Constitution, the Executive is endowed with enormous power in the two related areas of national defense and international relations. This power, largely unchecked by the Legislative and Judicial branches, has been pressed to the very hilt since the advent of the nuclear missile age. For better or for worse, the simple fact is that a President of the United States possesses vastly greater constitutional independence in these two vital areas of power than does, say, a prime minister of a country with a parliamentary from of government.

Such grand power is taken for granted these days, to a large extent, and many are shocked when the Bush and co. use it so badly. The genie is out of the bottle.

-j

Yeah, it couldn't possibly be for conducting national defense efforts to halt terrorist plots for the last 6 years or anything...

Psssh. Take off the tin-foil hat.

Speedracerx - do you really credit this Administration with preventing attacks on U.S soil? You may as well thank them for the sunrise or the rain.(or for Spiderman 3). The reason I don't share your assumption is their demonstrated incompetence in everything else they've touched. (New Orleans, Iraq, Afghanistan, stem cells, social security, oil prices, health care.....) You get the idea. If they had shown a spark of talent in any area, domestic or foreign , I might take a sip of kool aid with you. But the fact is they have demonstrated an almost perfect record of incompetence and don't seem to be able to find their ass with either hand. Feel free to write back with a list of "mission accomplished(s)".

I wouldn't trip over yourself, Viretarmis. A significant number of plots have been disrupted through intelligence gathering.

I'll come back to the original point here: There is no reason not to get a warrant, unless you want to expand executive power for its own sake. Warrants are secret. Local police and FBI have done this with drug dealers and regular criminals for decades. You present a little evidence, get a warrant, continue with your operation, no info leaks.

To say that getting wiretaps authorized by a Judge impedes national security is baloney.

Slippery slope, folks.

Some of you argue that the threat of terrorism is so urgent that it justifies the government to act without judicial supervision. Yet, thus far, terrorists have succeeded in killing a small fraction of the number of Americans murderers who kill for nonpolitical reasons. If the government has to answer to the family members of those victims, aren't warrantless searches justified in these situations as well?

If my lack of trust in the government not to abuse this power on regular Americans requires a tin foil hat, then I'll proudly wear one. Our freedom exists because of public supervision of police action. Safety isn't worth it.