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No civil libertarians here

The most interesting thing about this quarrel between New York City police commissioner Raymond Kelly and attorney general Michael Mukasey over the surveillance of terrorism suspects is what they agree about: the public is safer with more surveillance.

Kelly's argument is that the DOJ has been dragging their feet on asking the FISA court to approve NYPD surveillance requests.

Mr. Kelly complained that Justice Department lawyers imposed a needlessly high standard to be certain that every surveillance application submitted to the court would be approved. “Intelligence collection operations against potential terrorist threats to the homeland often involve considerable uncertainty,” he wrote. “D.O.J. should not hesitate to present judges with close cases. Some requests for warrants will inevitably be denied.”

Mukasey's argument isn't that the surveillance is excessive, but that the court will scrutinize surveillance requests more closely if too many of them are submitted.
But Mr. Mukasey said that submitting such cases to the court would be a mistake. “The less the FISA court comes to trust the validity of the applications, the more inclined the judges will be to impose on all applications the kind of scrutiny that doubtful applications merit, which of course takes more time and causes more delay because the court’s resources are limited,” he said. “The greater the delay, the fewer the applications can be processed and granted within a given time. The fewer successful FISA applications, the less intelligence can be gathered. The less intelligence gathered, the greater the danger to all Americans, including New Yorkers. That is not a complex formula.”

So this argument is just a tactical one over how to extract the widest latitude for law enforcement surveillance from the FISA court. Unsurprisingly, both sides assume that more surveillance = greater public safety. There's no civil libertarian side to this squabble. The good news, I suppose, is that both officials still seem to think getting the court's approval to eavesdrop is a necessary evil.

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