Tuesday, December 20, 2005

Is the Surveillance Legal?

Volkh presents a clear discussion of the legalities of the Administration's wiretapping activities. In brief, he argues that the 4th amendment does not apply to the program in question due to the well-established border exemption that permits customs to search for contraband. The 1978 law FISA however is more complex: it prohibits electronic suveillance unless a few specific exceptions apply, or the executive is explicitly authorized by statute. Those exceptions are:

50 U.S.C. 1802(a)(1)
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that--

(A) the electronic surveillance is solely directed at--
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title; [and]

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.

Does this exception permit the monitoring? Note that (i) and (ii) are both dealing with "foreign power, as defined in (a)(1), (2), or (3) of this title." FISA's definition of "foreign power" appears in 50 U.S.C. 1801:
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments

That's the key: the first passage cited definitions 1, 2, and 3, but did not cite 4,5, or 6. In other words, "a group engaged in international terrorism" is NOT a foreign power which qualifies an exception to FISA's constraints. Thus, I believe, with Volkh, that FISA prohibits the administration's activities.

The question then turns to the other possible avenue circumvent of FISA--whether there is a statutory mandate allowing such surveillance. The administration claims that the Authorization for the Use of Military Force supplies that statute, but the text really does not address surveillance, only direct military action, and Volkh points out that if Congress' intent was to create a surveillance mandate with the AUMF, why did they spend so much time amending FISA and passing the Patriot Act?

At the end of the day, the question must not be "Did this surveillance protect us from terrorists?" (how can we know?) or even "Did they break the law?" (forgivable if their interpretation is within reason) but "Did the administration act in good faith?" If it knowingly circumvented congressional oversight to spy illegally on American citizens, then it should face serious consequences.

Tuesday, December 13, 2005

Fighting Bioterror

You can help strengthen the US bioterrorism defense.

The greatest obstacle to the development of bioweapon countermeasures in the US is the gap between the public funding available for basic science research, and late stage product development (of drugs, vaccines and devices) that industry typically performs. The Bioshield legislation Congress passed last year has been utterly inadequate in its task of supplying incentives for industry to take on the early stage product development necessary to produce the vaccines and medications the public needs for large scale public health responses.

After 9/11 the US made a dramatic change in biodefense strategy; it shifted responsibility for procurement from the Defense Department to the NIH, an agency not really designed for this function. That being said, NIH did an excellent job of developing a new anthrax vaccine, but for political reasons it will not be able to duplicate this role.

Therefore, we need to either find another government agency to do the job, or provide incentives for industry to take on early product development. That is what Bioshield II is designed to accomplish, and it seems well suited to the job, with a system of targeted grants to provide milestones of product development. Its strength is that it builds biodefense into routine public health, a strategy I've touted on this blog. But it also provides intellectual property and liability protections that are absolutely necessary for any industry investment in the field.

It will take a good deal of courage for senators to support this bill which could easily be made out by opponents to be handouts to rich pharmaceutical companies; I'm no big fan of Big Pharma but I believe it is necessary for public health for government to provide adequate incentives for them to develop products that private markets will not support. When the sales of Lipitor alone total $10 billion a year, the $5 billion yearly US market for all biodefense countermeasures combined just doesn't look appealing to a drug company.

Write your Senator or Representative and ask them to support Senators Lieberman, Hatch and Gregg in passing Bioshield II.

Friday, December 02, 2005

What is a Centrist?

The recent political developments in Israel have lead to a lot of thought about what centrism really means. Haaretz brings us an excellent essay about Israeli centrism.

A "genuine" centrist won't necessarily seek the middle ground on every issue. Occasionally, he will think that the right is correct on a particular issue - for instance, the need for a decisive struggle against terror "with the gloves off" - and sometimes he will side with the left - for instance, on the need to preserve the rights of the Palestinian population - and the balance will be seen in the overall picture.

What, then, motivates the centrist? Here is a far more positive answer than the one provided by Yossi Sarid: At a time when the people on either end see before them only one aspect of reality, the centrist tries to see the entire reality. Those on the extremes are similar to people who close one eye in an effort to direct their attention to the objective that interests them. Their vision may be sharper, but a broad swath of reality is simply hidden from view...

The key word in the vocabulary of the centrist is not, as many think, "compromise," but "inclusiveness." As difficult as it is, the centrist wants to include, simultaneously, all values and needs, to be attentive to all sectors. Someone on one side of the spectrum, on the other hand, might be attentive to Palestinians, but tend toward hatred of settlers or the ultra-Orthodox, and the opposite is true as well. Compromise is only the consequence of inclusiveness, not the object, and can come in many forms.

Compromise is only the consequence of inclusiveness, not the object.

Understanding this idea is the key to answering critiques of the centrist way of doing things coming from either pole of the spectrum.

The essay also describes an aspect of centrism similar to what I have tried to describe about moderate Republicanism, especially in this essay. Similarly, the Haaretz essay continues:

On the practical side, those on either end of the spectrum tend to forget the craftiness of history. They tend to think that the way to advance the ideal they believe in is by exerting maximal pressure to implement it, and forget that at the moment they chose that path and ignored their rivals and various other values and needs, they started up the backlash seeking to cancel out their revolution.

Hat tip Centrist Coalition

Thursday, December 01, 2005

A Map of Different Color

Based on Bush's local approval ratings, here's a revised red-blue map of the US. Hat tip to Donklephant.