First, Steve somehow draws the conclusion that I am not interested in the legality of surveillance activities. I am not sure where he gets that. While Steve and I might disagree about the legality of certain surveillance activities, there is nothing in my post to suggest that I care about legitimacy to the exclusion of legality. My Monday post only intended to address the legitimacy issues that President Obama had raised in his August 9th press conference. I thought that it was an insightful observation on the President’s part, and one that has been of interest to me. Indeed, an attorney with the Electronic Frontier Foundation and I discussed (and agreed about!) the phenomenon of distrust of Congressional oversight, in particular, back in a January discussion on KQED's show "Forum."
Second, I am concerned about additional layers of lawyers and bureaucratic processes being added at the expense of speed and agility in national security surveillance activities. That balance was supposed to have been struck by the FISA Amendments Act of 2008. Moreover, this is not, as Steve suggests, analogous to Guantanamo litigation---where the terrorists are safely out of play and there is all the time in the world to let the adversarial litigation process run its course.
Third, I am throwing a yellow flag on the issue of the “special advocate” because, unlike Steve, I had a front seat, for a decade, to witness the occasional ability of bureaucratic processes to tie the government in knots. And so I wish that the President would have allowed his proposed task force to evaluate the pros and cons of the “special advocate,” and consider alternatives, before publicly endorsing the concept.