Convention Day 3: Domestic Surveillance Panel

I attended the session entitled "Domestic Surveillance the Rule of Law" this morning, and found it to be quite interesting and informative. The panelists included Leslie Harris, Neil Kinkopf, former Deputy Attorney General David Kris, and Robert Turner. The panel started out with a brief survey of the issue, and a history of the FISA statute, then moved on to a discussion of the constitutional authority of President to instigate warrantless wire-taps, and that's where it got really interesting. Turner launched into a spirited defense of the President's exclusive authority over intelligence-gathering as it relates to his war-making power, citing numerous cases which he said were evidence that the courts have never intended to restrict the President's authority to collect intelligence. The problem with his defense is the same problem that I've seen with all legal defenses of that position; Turner cited case after case that related in some way to either national security, or intelligence gathering, or the war power, but there quite simply is no line of authority that explicitly states that the President has the authority to authorize wire-taps of US citizens without a warrant, even if they are speaking to suspected terrorist operatives overseas. And he avoided the political argument completely; clearly, if the President has inherent consitutional authority authorize such a thing, then he doesn't need to ask for changes to the FISA statute as it stands, because the FISA statute could have never restricted him in the first place. As I've stated before, this is an argument that I find untenable, and Turner was called out on it by the other panelists, especially Kinkopf, who flatly disagrees with an interpretation of the Constitution that gives Congress no authority to act in the realm of intelligence gathering. He maintained repeatedly that in this field, like others, Congress and the President have overlapping authority, that the President may possess the authority to collect intelligence, but Congress has the ability to regulate how that collection occurs, and to provide oversight. Harris was clearly the most vocal against the the domestic surveillance programs, stating that we simply cannot take the administration at face value as to the extent of the programs, and that the academic debate about the legality of warrantless wiretaps of Americans talking to suspected terrorist overseas could be but a distraction if it is revealed that the administration is in fact data mining the communications of American citizens (as some news reports have indicated.) Harris was quick to point out that current law creates no privacy interest in data kept by businesses or the government on we citizens (a point Clinton discussed yesterday) and even Turner agreed with her there, that there is a deficit in this field. Harris pointed out that whatever the government has done in the collection of that data, whether they've done so legally or not, now that they have it, it is almost a moot point to discuss whether it's legally obtained, as the government can do as they wish with it. Kris was surprisingly subdued for most of the panel, given that he is the only one to have hands on experience working with FISA and has sharply criticized the administration in the past, but I think he felt content to let the legal scholars Kinkopf and Turner duke it out over their interpretations.

Regardless it was a lively and spirited debate between the panelists, and between the audience and the panelists, and the most interesting presentation I attended at the convention after Clinton's speech.