I began writing this post the day after the Townhall meeting described below, and a few hours before the Bush Administration announced it was abandoning its policy of ignoring the Foreign Intelligence Surveillance Act (FISA) provisions for obtaining warrants for electronic eavesdropping on American citizens. As some of the observations below indicate there is still some ambiguity about the FISA procedures, even when the law is not ignored, even among experts on the law, especially regarding the emergency provisions of FISA that allow 72 hours of warantless eavesdropping to proceed before a warrant is applied for.

Nonetheless, I’ve opposed in print, from the very beginning (that is from the moment, last year when the Times revealed it) any policy that has as its basis some notion of utterly unlimited Presidential power to ignore the Constitution. Power that allows the executive branch to ignore even a law that allows it, in an emergency situation, to bypass the Fourth Amendment for a limited period of time, after which some minimal justification to a secret court for this temporary suspension of constitutional guarantees is deemed necessary. If the Administration needed even more power to suspend the Fourth Amendment it could have, should have, at a minimum, gone to Congress to get it.

Meanwhile here are some observations on a New York Civil Liberties “Townhall meeting” (held at NYU Law School on Dec. 16) about the evasion of the FISA law, before the following day’s ambiguous renunciation of that evasion:

Attended a packed house “Townhall meeting” on the NSA eavesdropping controversy last night and here are some take away points:

–credit is due to The New York Civil Liberties Union for assembling a balanced panel–three opposed, three in favor of the Bush Administration warantless electronic surveillance that dispensed with the Foreign Intelligence Surveillance Act court/warrant procedures and just went ahead and let the NSA “data mine” any American citizen they felt the need to, without even justifying it, retroactively, to a FISA’s secret court.

Favoring the secret surveillance revealed by the Times last January were Timothy Bakken a West Point Professor of Law, Andrew C. McCarthy former Federal prosecutor who convicted Sheik Omar Abdul Rahman for the 1993 WTC bombing, columnist for The National Review and fellow of The Foundation for the Defense of Democracy, and Timothy Connors Director of the Manhattan Institute’s Center for Policing Terrorism.

Opposing the Bush Administration policy were Ann Beeson the ACLU’s lead attorney in their suit against the warrantless eavesdropping, Tara McKelvey, a senior editor at The American Prospect, author of the forthcoming book Monstering on Abu Ghraib and torture policy and a plaintiff in the ACLU suit, and Patrick Radden Keefe, fellow of the Century Foundation, and author of a book on the new world of electronic eavesdropping Chatter.

–despite all this expertise the panel couldn’t agree on one key factual point about the FISA Act’s provision for a limited period of warantless surveillance on American citizens. In the so called “ticking clock” or “ticking bomb” scenario when, say, Osama Bin Laden makes a call to someone in America and asks him (or her) to make a call to another individual to instigate another 9/11 (or worse) in two minutes, how does the 72 hour provision that, under FISA, supposedly permits NSA to conduct surveillance of that second individual before applying for a warrant (and thus, purportedly, find and stop the ticking bomb) play out? Does the NSA have to notify the Attorney General it is about to conduct one of those 72 hour warantless eavesdropping missions, in which case bypassing FISA might have more of a rationale–since it might take more than two minutes to reach the Attorney General. Or can the warantless eavesdropping proceed immediately even if the A.G. is not reached?

–the dimension of politics. Andrew McCarthy made the point that the missing dimension of the protest against the Bush Administrations actions was political and Congressional: Congress, he argued, had the power at any moment to end warrantless surveillance by cutting off the NSA’s funding for such practices. But even the new Democratic Congress hasn’t shown the political will to do so. On the other hand, in its defense, Congress hasn’t been able to find out exactly what is being done in enough detail to defund it. And the Administration could argue that disclosing what is being done will give those plotting another 9/11 knowledge of how to avoid being detected.

–There is damage from warantless searches not just to the Fourth Amendment but to the First Amendment. Tara McKelvey told of interviewing an Iraqi woman who described abuse at Abu Ghraib before the warantless surveillance program was revealed last year. The woman feared that disclosure of their phone conversation could result in reprisals. Ms. McKelvey said she had tried to assure the woman at the time of their talk that she would keep her identifying details confidential as is often necessary in press exposure of government scandals. Now she realizes that this was an assurance that the warantless surveillance program made invalid then and impossible in the future and would have a chilling effect on all investigative reporting involving scandals such as Abu Ghraib.

–There was much useful, sometimes educational, sometimes repetitive argument about FISA, eavesdropping, presidential powers, constitutional limits and the question of whether global jihad represents a military or policing matter. But the intelligent discussion about intelligence was often interrupted by loud unintelligent-seeming 9/11 conspiracy theorists who thought it more important to attempt to hijack the meeting by shouting abusively at everyone there so they could substitute their fantasies for the serious questions being discussed. Sad.

–only one questioner had the courage to challenge them. I don’t know his name but my salutations to him for speaking out. I’m interested in FISA and surveillance questions but spare me your 9/11 conspiracy theory comments. I’ve read the arguments and the refutations and there are plenty of chat boards you can go to into vent on the subject if you want to.

–questions have already been raised about the Administrations’ “turnabout”. is it a “turnabout or is it just an announcement that they’ve gotten the FISA court to approve what they’ve been doing without the FISA court’s approval all along in order to make moot the ACLU lawsuit.

I believe there’s no easy answer to balancing issues of liberty and safety and that every necesary tool to prevent another 9/11 should be explored. But I don’t think that means the Constitution, and especially the Fourth Amendment should become irrelevant. It’s time for Congress to earn its pay.