Catch-22 and the NSA

First, thanks to J. Cole for the linky-love.

Second, to paraphrase, just because people are being paranoid, doesn't mean that they aren't after them.

As I said over there, I don't feel people on either side of this debate have a great handle on the crux of the issue. As to the legal analysis, I don't feel like repeating it, but I.M. Kierkagaard has been keeping a link repository, so start there. The one I tend to agree with most is Orin Kerr's, (and if you read Krauthammer's WaPo column, Kerr's piece is a must as Krauthammer selectively quotes his way to a completely different conclusion than reached by Kerr, but selective quotation seems to be par for the course on this whole issue.)

The problem is this - the President has wide-ranging, perhaps plenary, power over certain matters. In order to ensure that those powers are not exceeded, the other branches must monitor and oversee. But that very oversight serves as a limit on the unlimitable. In order for such intractable problems not to arise, a certain degree of self-restraint is neccesary. As George Will eloquently put it:

Charles de Gaulle, a profound conservative, said of another such, Otto von Bismarck -- de Gaulle was thinking of Bismarck not pressing his advantage in 1870 in the Franco-Prussian War -- that genius sometimes consists of knowing when to stop. In peace and in war, but especially in the latter, presidents have pressed their institutional advantages to expand their powers to act without Congress. This president might look for occasions to stop pressing.

More specifically, the President probably has unlimited power to conduct surveilance and searches on actual suspected terrorists, while he has no power to do the same to U.S. citizens who are not, sans warrant. The key point is the determination as to who is 'an actual terrorist suspect'. If this determination is solely left to executive discretion, that power has no effective check. On the other hand, judicial or congressional oversight over this determination inherently cabins the power to surveil actual terrorists - he has to make a showing (72 hours after the fact, mind you) that he has identified legitimate targets.

My skepticism over the whole affair is two-fold. First, I do not trust this administration. I did not like them from the start for policy reasons, and they've done very little in five years to convince me otherwise. I feel that making political issues out of real security concerns is shameful (a shame to be shared across the spectrum, but the party in power bears the brunt, IMO). Secondly, I would be much more favorably inclined towards these claims of neccesary power if they were working harder to demonstrate neccesity. As Kevin Drum notes,

This is the most infuriating aspect of George Bush's approach to terrorism: that he treats it as a partisan weapon instead of a genuinely serious business. Chemical plants really are a prime target for terrorists, but Dick Cheney doesn't want to annoy his corporate pals, so EPA's plans to address it get shelved. WMD counterproliferation really is important, but it's not very sexy and doesn't serve any partisan ends since Democrats support it too. So it's ignored and underfunded. Detention of enemy combatants when the enemy is an amorphous group like al-Qaeda is a genuinely vexing issue that deserves a serious bipartisan airing, but the Justice Department treats it like a child's game, inviting barely concealed rage from a conservative judge who thought this was supposed to be life-and-death stuff.

I'm not sure if Drum is accurate in his assesment, but it sure looks that way at times. And given that appearance, claims of neccesity begin to look like transparent attempts at a power grab - not aided by Gonzales's and Co.'s novel approaches to certain legal issues, or shoehorning War on Drugs anti-meth provisions into the PATRIOT act. So, as I said yesterday, try harder, and then come ask for more if you need it.