The Democrats, Bush and the NSA domestic spying

Marty Lederman wonders why the Democrats are not making more of the allegedly illegal NSA mass domestic phone surveillance authorised by the Bush administration.

"So, why aren't the Senate Democrats making more of a fuss about the fact that the Attorney General and Michael Hayden determined to ignore FISA on the theory that the President has the constitutional power to violate such statutes? If Hayden's testimony is any indication, there appear to be two reasons:

First, it appears that Democrats such as Nancy Pelosi, Jane Harman, and Bob Graham were repeatedly briefed on the program. The Democrats have not yet come up with an adequate explanation of why their leaders did not object...

Second, if Hayden is to be believed, the members of Congress who were briefed agreed with the Administration that: (i) The program was useful but in violation of FISA; (ii) The best way to deal with the program of FISA's obsolescence was to amend FISA to accommodate the program; but (iii) To amend FISA in such a way would risk public revelation of NSA methods that had to remain secret...

assume what might well be the case: that the Administration (and possibly some in Congress) did not wish to amend FISA to make the NSA program lawful because there is a genuine and distinct tactical advantage in having our enemies think that we are abiding by the rule of law declared in the U.S. Code, when in fact we are not doing so.

So here's the question: Is it acceptable in a liberal democracy for a nation's positive law to announce to the world that Conduct X is unlawful, but for the government to secretly engage in such conduct nonetheless?"

Actually I don't think it is acceptable but the more important issue from a security perspective is that the enemy, say some terrorist organisation, is not going to rely on that liberal democracy following its own laws. You cannot manage the perception of the terrorist either by explicitly following or just pretending to follow your own laws. In the latter case it is a secret that is extremely brittle and quickly exposed in the shape of leaks like the USA Today or Wired stories and the terrorists' encounters with that state. It is therefore of little or no value from a security perspective.