The Butcher, The Baker and FISA

The House Judiciary Committee will be holding a hearing today on FISA, the NSA and some guy named Snowden. Few people are aware of this, as their time and attention are consumed by more important legal concerns, as regularly voice by legal entertainer, Nancy Grace.  But it will happen nonetheless.

Stewart Baker, who harbors some peculiar notions when it comes to the things the government does to keep us safe, will be testifying, and he has much to say about each of these subjects, and then some.  While his testimony of extraordinary breadth is all worth reading in a morbid fascination sort of way, it spans far more than can be discussed here. Rather than try to overreach, let's take a look-see at just one small piece of his puzzle.

To be blunt, one of the reasons I’m here is that I fear we may repeat some of the mistakes we made as a country in the years before September 11, 2001.  In those years, a Democratic President serving his second term seemed to inspire deepening suspicion of government and a rebirth of enthusiasm for civil liberties not just on the left but also on the right.  The Cato Institute criticized the Clinton Administration’s support of warrantless national security searches and expanded government wiretap authority as “dereliction of duty,” saying,“[i]f constitutional report cards were handed out to presidents, Bill Clinton would certainly receive an F–an appalling grade for any president–let alone a former professor of constitutional law.” The criticism rubbed off on the FISA court, whose chief judge felt obliged to give public interviews and speeches defending against the claim that the court was rubber-stamping the Clinton administration’s intercept requests.

This is where I should insert a joke about the movie “Groundhog Day.” But I don’t feel like joking, because I know how this movie ends. 

Gratuitous slams at Democrats aside, given that a two-term Republican in the middle didn't do any better, can you guess where Baker is heading?

 

And so, when a law enforcement task force of the FBI found out in August of 2001 that al Qaeda had sent two dangerous operatives to the United States, it did … nothing.  It was told to stand down; it could not go looking for the two al Qaeda operatives because it was on the wrong side of the wall.  I believe that FBI task force would have found the hijackers – who weren’t hiding – and that the attacks could have been stopped if not for a combination of bad judgment by the FISA court (whose minimization rules were later thrown out on appeal) and a climate in which national security concerns were discounted by civil liberties advocates on both sides of the aisle.

Rarely does a paragraph so grossly distort cause and effect, correlation and causation, while at the same time trivializing and blaming those darned "civil liberties advocates on both sides of the aisle."  Maybe not Jefferson and Madison, but their elected descendants who, at least in Baker's mind, put us at risk for terrorism by the horrors of defending civil liberties, those things that make us who and what we are. 

This is like a trick for fools, which makes it perfect for congressional testimony. As if the FBI having been on the wrong side of the "wall" before 9/11 was the cause of America's failure to stop the attacks. Because the FBI so effectively stopped others, say, Tsarnaev, when they had no wall to blame it on? Or that there was no other law enforcement apparatus in existence for the FBI to do its job, except to engage in a national secret colonoscopy but be forbidden from telling the patient the results.

There has never been any dispute that law enforcement would be both easier and more effective if we would just let them ignore all those nasty constitutional rights that the citizenry preserved for itself when deciding to let a government exist.  Think about how much safer we would be if police could just enter our homes at will and search for whatever they want, or just for fun. You never know what they might stumble on.

That's what Baker considers the right way to go, because he believes that government can be trusted, that government is well-intended and would rarely abuse the vast power he would give it.  Not that it would never abuse the power, but in those very rare instances where something went beyond his vision of propriety, government would also be fully capable of policing itself.  Ronald Reagan, for all his faults, was elected on the platform that government was the problem.  Baker disagrees.

 

I realize that this story is not widely told, perhaps because it’s not an especially welcome story, not in the mainstream media and not on the Internet. But it is true; the parts of my book that describe it are well-grounded in recently declassified government reports.

More importantly, I lived it.  And I never want to live through that particular Groundhog Day again.  That’s why I’m here.

The argument is reminiscent of the mother whose child was tragically killed, and goes before a legislative body to ask that no other child ever again be harmed.  There is enormous sympathy for her loss, but whatever killed the child happens a million times without incident, and then once with a terrible outcome.  What she is asking is that the million times be eliminated so that the one time never happen. It's understandable, as she speaks from personal grief, but it's an unsound basis to craft law.  Baker plays the same cards.

Notice how he ties it to himself personally, as he was there in government service when the government failed to stop a tragic event.  Of course, it wasn't the government's fault that it failed, but those "civil liberties advocates" who tied the government's hands from saving us.  That's the claim, even though it relies on a logical fallacy that Baker, a smart guy, hopes no one on the committee will see. 

Had there been no wall, and the FBI free to break into bedrooms and telephone calls at will, there is no correlation between their putative claim that they would have been able to stop 9/11.  There is no basis to claim they would have done anything more than interrogate the two suspected terrorists and let them go. There is no basis to claim that the other terrorists, even if the two were held or expelled, wouldn't have flown planes into buildings. There is no line to be drawn from point A to point Z.

But Stewart Baker will be testifying before the House Judiciary Committee today and will tell them these things. And I won't. And you won't. And the wheels of government will grind on.

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