A Chance to Fix the PATRIOT Act?
As Tim Lynch noted earlier this week, Barack Obama’s justice department has come out in favor of renewing three controversial PATRIOT Act provisions—on face another in a train of disappointments for anyone who’d hoped some of those broad executive branch surveillance powers might depart with the Bush administration.
But there is a potential silver lining: In the letter to Sen. Patrick Leahy (D-VT) making the case for renewal, the Justice Department also declares its openness to “modifications” of those provisions designed to provide checks and balances, provided they don’t undermine investigations. While the popular press has always framed the fight as being “supporters” and “opponents” of the PATRIOT Act, the problem with many of the law’s provisions is not that the powers they grant are inherently awful, but that they lack necessary constraints and oversight mechanisms.
Consider the much-contested “roving wiretap” provision allowing warrants under the Foreign Intelligence Surveillance Act to cover all the communications devices a target might use without specifying the facilities to be monitored in advance—at least in cases where there are specific facts supporting the belief that a target is likely to take measures to thwart traditional surveillance. The objection to this provision is not that intelligence officers should never be allowed to obtain roving warrants, which also exist in the law governing ordinary law enforcement wiretaps. The issue is that FISA is fairly loosey-goosey about the specification of “targets”—they can be described rather than identified. That flexibility may make some sense in the foreign intel context, but when you combine it with similar flexibility in the specification of the facility to be monitored, you get something that looks a heck of a lot like a general warrant. It’s one thing to say “we have evidence this particular phone line and e-mail account are being used by terrorists, though we don’t know who they are” or “we have evidence this person is a terrorist, but he keeps changing phones.” It’s another—and should not be possible—to mock traditional particularity requirements by obtaining a warrant to tap someone on some line, to be determined. FISA warrants should “rove” over persons or facilities, but never both.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Cheney vs. Obama: Tale of the Tape
In case you missed it, President Obama and former Vice President Dick Cheney spoke separately today on terrorism and national security. Like two boxers at a pre-fight press conference, they each touted their strength over their opponent. They espoused deep differences in their views on national counterterrorism strategy.
The Thrilla in Manilla it ain’t. As Gene Healy has pointed out, they agree on a lot more than they admit to. Harvard Law professor and former Bush Office of Legal Counsel head Jack Goldsmith makes the same point at the New Republic. Glenn Greenwald made a similar observation.
However, the areas where they differ are important: torture, closing Guantanamo, criminal prosecution, and messaging. In these key areas, Obama edges out Cheney.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Egypt Crosses Critical Line in the Arab Sands, Labels Hezbollah ‘Terrorist’
The designation of Hezbollah as a terrorist group by Egypt highlights a fault line developing in the Middle East over relations with Israel and the United States.
On the one hand, there are those who favor negotiations to resolve the dispute between Israel and the Palestinians. These countries include, most prominently, Egypt and Jordan, which both have signed treaties with Israel. Saudi Arabia also has promoted a negotiated solution.
Iran and Hezbollah, on the other hand, have emphasized what they call “resistance,” which means the use of arms to wrest territory from Israel ’s control. The admission by Hezbollah’s leader, Hassan Nasrallah, that one of the people Egypt arrested was supplying arms to Hamas on Hezbollah’s behalf indicates that Hezbollah’s “resistance” is not limited to Lebanese sovereign territory.
Although Egypt’s action is directed against Hezbollah (and, by extension, Iran), it also carries a warning for the United States and Israel. The “resistance” argument is gaining ground in the Middle East. If it is to be successfully countered, negotiations need to deliver something tangible for the Palestinians—and soon. Otherwise, the regional governments who favor negotiation will find their arguments undercut, which could not only jeopardize hopes for Middle East peace, but might also threaten their own stability.
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