[NYTr] Columbia Law's Bobbitt Celebrates Police State in The New York Times

[All the News That Doesn't Fit]

[Philip Bobbitt was last seen in the pages of the New York Times back
on Jan 30, 2006 offering another Op-Ed apologia for surveillance
called "Why We Listen." There were numerous anti-Bobbitt Letters to
the Editor back then. Before that, he got space on the Op-Ed page in
2005 for "Facing Jihad, Recalling the Blitz" and in 2004 he got "Being
Clear About Present Dangers" published. Barf. This guy is a true pig
and the Times eats it up. -NY Transfer]

sent by Francis A. Boyle - Aug 22, 2007

[I notice that Columbia Law recently hired Police State Bobbitt  who
has an essay in today's Newspeak Times gutting the Fourth Amendment to
the United States Constitution. A generation ago, Columbia Law denied
tenure to my friend, the great Tom Farer, who is one of the most
courageous and principled international law professors of the
post-World War II era, because of his opposition to the
unconstitutional Vietnam War. 

Plus ca change, plus ca reste la meme chose at Columbia Law. -fab]

The New York Times - Aug 22, 2007
http://www.nytimes.com/2007/08/22/opinion/22bobbitt.html

The Warrantless Debate Over Wiretapping

By PHILIP BOBBITT

CONGRESS just passed, and President Bush hurriedly signed, a law that
amends the legal framework for the electronic interception of various
kinds of communication with foreign sources. Almost immediately,
commentators concluded that the law was unnecessary, that it authorized
a lawless and unprecedented expansion of presidential authority, and
that Democrats in Congress cravenly accepted this White House
initiative only for the basest political reasons. None of these widely
broadcast conclusions are likely to be true.

All sides agree that some legislative fix is required because of
changes in telecommunications technology. Where once it made sense to
require warrants when one party to a foreign conversation was in
America, this ceased to be the case when American routers became the
transit points for foreign conversations that might or might not
involve a person in the United States.

Once linear, analog, point-to-point communication has been replaced by
the disaggregated packets of the Internet, two people talking to each
other in Europe could find their conversations going through American
switches. It also became difficult to determine the true origin of any
communication that was routed through the United States. If a terrorism
suspect in Pakistan is having conversations with someone on a computer
with a New York Internet protocol address via a chat room run by an
Internet service provider in London, where exactly is the intelligence
being collected? If the answer is the United States simply because the
servers are here, of what possible relevance could that be to the
protection of the rights of Americans?

Amending the statute to focus on protecting American people rather than
an American address would not have dealt with a larger and more
profound problem. The change in the global communications
infrastructure is both a driver and a consequence of a change in the
nature of conflict. The end of the cold war was brought about in part
because of technologies that empowered the individual and whetted
people’s appetites for more control over their lives. These same
developments also empower networks of terrorists, and the war they will
soon be capable of waging has little in common with the industrial
warfare of the 20th century. Accordingly, foreign intelligence tasks
will also change.

It made sense to require that the person whose communications were
intercepted be a spy when the whole point of the interception was to
gather evidence to prosecute espionage. This makes much less sense when
the purpose of the interception is to determine whether the person is
in fact an agent at all. This sort of communications intercept tries to
build from a known element in a terror network — a person, a telephone
number, a photograph, a safe house, an electronic dead-drop — to some
picture of the network itself. By crosshatching vast amounts of
information, based on relatively few confirmed elements, it is possible
to detect patterns that can expose the network through its benign
operations and then focus on its more malignant schemes.

For this purpose, warrants are utterly beside the point. As Judge
Richard Posner has put it, “once you grant the legitimacy of
surveillance aimed at detection rather than at gathering evidence of
guilt, requiring a warrant to conduct it would be like requiring a
warrant to ask people questions or to install surveillance cameras on
city streets.” Warrants, which originate in the criminal justice
paradigm, provide a useful standard for surveillance designed to prove
guilt, not to learn the identity of people who may be planning
atrocities.

A statutory fix that simply waived the warrant requirement when both
parties to a conversation were foreign would scarcely address this
problem. Technology is changing the nature of the threat, not merely
the mechanics of collection. The statutory change is unnecessary, I
suppose, if you believe that there is in fact no real threat, that it’s
all hype by the White House to expand its powers — presumably to some
other end — and that all we have to fear is fear itself. Doubtless,
some people do believe this. If the editorialists and columnists in the
news media make this assumption, they should frankly say so (and hold
their breath until the next attack).

Furthermore, there is an unstated assumption that warrantless
surveillance is lawless surveillance. There is, however, judicial
precedent for warrantless searches, even if you can’t tell this from
the public debate. The president of the American Bar Association
objected to the new statute by sarcastically observing, “The last time
I checked, the Fourth Amendment is still in the Bill of Rights,” which
he doubtless believed to be a withering salvo.

In fact, there are many instances in which warrantless surveillance has
been held to be permissible under the Fourth Amendment. Searches in
public schools require neither warrants nor a showing of probable
cause. Government offices can be searched for evidence of work-related
misconduct without warrants. So can searches conducted at the border,
or searches undertaken as a condition of parole. Searches have been
upheld in the absence of a warrant where there is no legitimate
expectation of privacy. The Clinton administration conducted a
warrantless search — lawfully — when it was trying to determine what
the spy Aldrich Ames was up to. The day after Pearl Harbor, President
Roosevelt authorized the interception of all communications traffic
into and out of the United States.

Then there is the widespread charge that Democrats supinely accepted
all this on political grounds. There probably were Democrats who
adapted their long-held views on the Foreign Intelligence Surveillance
Act to political necessity. But these are most obviously to be found on
the other side of the vote. Senators Hillary Clinton, Christopher Dodd
and Joseph Biden — all of whom are running for president — voted
against this legislation, when their records are otherwise quite
forceful where national security issues are concerned. With respect to
those voting in favor of the statute, I find it hard to believe that
Senator Daniel K. Inouye of Hawaii and Senator Jim Webb of Virginia are
concerned about appearing insufficiently sensitive to security threats
to the country.

Why would we be troubled in any case when a politician in a democracy
votes the way he thinks the people want? Polls show that the American
public is not as anti-security-minded as the American Civil Liberties
Union. That’s why we need an A.C.L.U., I imagine.

One good reason not to want popular politics to guide such decisions
arises when the public is not well-informed. Partly this can be laid at
the door of the incumbent president, the Great Miscommunicator. But
mainly it lies with those people who don’t bother giving reasons, don’t
explain or give arguments, who prefer to traduce the people with whom
they disagree by attacks on their characters, which are presumed to be
insufficiently stalwart.

In Robert M. Gates, the defense secretary, Mike McConnell, the director
of national intelligence, and Gen. Michael V. Hayden, the director of
central intelligence, we have about as good a team as it is possible to
imagine. Most people in Congress know that. Why not assume they are
proposing a solution to a real problem? Developments in technology are
forcing a long-overdue statutory change — and those developments will
be with us long after the politics of the moment have passed.

[Philip Bobbitt, a professor of law and the director of the Center for
National Security at Columbia University, was a National Security
Council senior director from 1998 to 1999.]