So it looks as though Al Franken reading the Fourth Amendment to DOJ’s David Kris has blown up on lefty and/or privacy-friendly blogs. Look, I appreciate the sentiment, I really do. I want to see Senators reciting the Fourth Amendment to representatives of the executive branch every time there’s a hearing. I want them to tattoo it on their legislative aides’ foreheads and have it played as a background soundtrack in Dirksen like subliminal Brave New World programming. But for the serious? David Fucking Kris does not need to be schooled on the Fourth Amendment’s particularity requirements by Stuart Smalley. I spent Thursday afternoon reading the chapter David Kris wrote on how the Fourth Amendment’s particularity requirement applies to FISA taps in his ginormous reference book on national security surveillance. If the name doesn’t ring a bell, Kris is the stone cold killer who put a bullet in the head of the legal sophistry invoked to justify Bush’s warrantless wiretap program without breaking a sweat. Alternatively, you may recall him as the guy responsible for exposing the bogus claim that investigators needed broad new powers in order to be able to eavesdrop on wholly foreign conversations. Or the guy who torpedoed the dishonest technological argument for expanding FISA wireline intercept powers.
His job is now to defend the renewal of roving wiretap authority in foreign intel investigations. But you know what? There should be roving wiretap authority in foreign intel investigations. No sane person says there shouldn’t. No, really. Call the ACLU or CDT and ask. The surveillance hawks want the debate to be “should this power exist or not?” because—since it should—that means they win. The real question is whether there should be clearer limits on roving applications to ensure that if a warrant gets to “rove” across communications “facilities” (e.g. disposable cell phone numbers) you at least have to specify an individual target precisely and follow robust, enforceable minimization procedures to guarantee you’re only picking up your target’s communications. When I hear Kris saying we shouldn’t implement that reform, I’ll shed a single sad-clown tear for the smart man we’ve lost to the Sarlacc Pit of government work. What I’m actually hearing so far are offers to work with Congress to fix the insane legislation that—who now?—oh yes, Congress passed when a different bunch were running DOJ.
Memo to Democratic legislators: The people there now are relative friendlies. They’re extending olive branches, which you should probably stop setting on fire. You’re just giving Bushie dead-enders an excuse to paint this as “civil liberties hippies vs. the Brave Americans Fighting Terror.” I watched John Conyers spend a good chunk of Tuesday’s hearing on the House side being a condescending dick to Todd Hinnen, one of the fiercest critics of Bush-era detention and interrogation policies. This just leaves smarmtastic bottom-feeders like Jim Sensenbrenner and Jeff Sessions to cast themselves as solicitous Grima Wormtongues by contrast. It makes for an awesome YouTube clip on Firedoglake, right up until the part where you fucking lose.
Let’s write a new script. I call it “Civil libertarians and sober intel people trying to craft good policy together, thereby depriving psychotic executive branch maximalists of the cover they need for their fearmongering.” Not, admittedly, a particularly pithy title. It’ll never be a Regnery bestseller. But we’re talking C-SPAN here; work with me people.