Federalist Society Board Member Argues Bush’s Surveillance Program Is Illegal

The right-wing spin machine wants you to believe that critics of the Bush’s warrantless domestic spying program are all liberals. Here’s Bill Kristol in the most recent issue of the Weekly Standard:

[L]iberals recoil unthinkingly from the obvious fact that our national security requires policies that are a step (but only a careful step) removed from ACLU dogma.

Actually, there are many very conservative people who vigorously oppose the program. For example, constitutional scholar Robert Levy — who is a board member at the right-wing Federalist Society — is an outspoken critic. The Federalist Society recently posted a Q&A; with Levy on their website. Here are some highlights:

— The text of FISA §1809 is unambiguous: “A person is guilty of an offense if he intentionally engages in electronic surveillance … except as authorized by statute.”


— I know of no court case that has denied there is a reasonable expectation of privacy by U.S. citizens and permanent resident aliens in the types of wire communications that are reportedly monitored by the NSA’s electronic surveillance program.

— [I]n FISA §1811, Congress expressly contemplated warrantless wiretaps during wartime, and limited them to the first 15 days after war is declared.

Levy makes a powerful case and he’s not alone. Other prominent conservatives who have criticized the program include Sen. Arlen Specter (R-PA), Sen. Lindsey Graham (R-SC), conservative columnist George Will, former Reagan deputy Attorney General Bruce Fein and AEI scholar Norm Ornstein.