The Volokh Conspiracy

In the Washington Post, Bart Gellman has a fascinating story on the NSA’s surveillance practices. There’s a lot to chew on in the article, but one interesting part is a discussion of the legal issue that led to the Goldsmith/Comey confrontation over the legality of NSA surveillance in 2004. Gellman writes:

Telephone metadata was not the issue that sparked a rebellion at the Justice Department, first by Jack Goldsmith of the Office of Legal Counsel and then by Comey, who was acting attorney general because John D. Ashcroft was in intensive care with acute gallstone pancreatitis. It was Internet metadata.

At Bush’s direction, in orders prepared by David Addington, the counsel to Vice President Richard B. Cheney, the NSA had been siphoning e-mail metadata and technical records of Skype calls from data links owned by AT&T, Sprint and MCI, which later merged with Verizon.

For reasons unspecified in the report, Goldsmith and Comey became convinced that Bush had no lawful authority to do that.

. . .

In the urgent aftermath of Sept. 11, 2001, with more attacks thought to be imminent, analysts wanted to use “contact chaining” techniques to build what the NSA describes as network graphs of people who represented potential threats.

The legal challenge for the NSA was that its practice of collecting high volumes of data from digital links did not seem to meet even the relatively low requirements of Bush’s authorization, which allowed collection of Internet metadata “for communications with at least one communicant outside the United States or for which no communicant was known to be a citizen of the United States,” the NSA inspector general’s report said.

Lawyers for the agency came up with an interpretation that said the NSA did not “acquire” the communications, a term with formal meaning in surveillance law, until analysts ran searches against it. The NSA could “obtain” metadata in bulk, they argued, without meeting the required standards for acquisition.

Goldsmith and Comey did not buy that argument, and a high-ranking U.S. intelligence official said the NSA does not rely on it today.

As soon as surveillance data “touches us, we’ve got it, whatever verbs you choose to use,” the official said in an interview. “We’re not saying there’s a magic formula that lets us have it without having it.”

When Comey finally ordered a stop to the program, Bush signed an order renewing it anyway. Comey, Goldsmith, FBI Director Robert S. Mueller III and most of the senior Bush appointees in the Justice Department began drafting letters of resignation.

. . .
Then-NSA Director Michael V. Hayden was not among them. According to the inspector general’s classified report, Cheney’s lawyer, Addington, placed a phone call and “General Hayden had to decide whether NSA would execute the Authorization without the Attorney General’s signature.” He decided to go along.

The following morning, when Mueller told Bush that he and Comey intended to resign, the president reversed himself.

Three months later, on July 15, the secret surveillance court allowed the NSA to resume bulk collection under the court’s own authority. The opinion, which remains highly classified, was based on a provision of electronic surveillance law, known as “pen register, trap and trace,” that was written to allow law enforcement officers to obtain the phone numbers of incoming and outgoing calls from a single telephone line.

If Gellman’s story gets it right, the legal issues that Goldsmith & Comey were acting on were pretty different from what we used to think– and considerably more technical. Back in 2007, we all assumed that the monitoring involved contents of communications. We guessed — or at least I did — that the issue was whether Article II trumped FISA or the AUMF was a statutory authorization that allowed content monitoring. But it sounds like the dispute was actually about whether bulk collection of metadata amounts to a “pen register” or “trap and trace device” under 18 U.S.C. 3127(3)-(4), part of the low-profile Pen Register statute. (For an introduction to the Pen Register statute and its application to the Internet, see here at 623-48.)

Notably, unlike FISA’s prohibition on content monitoring, the Pen Register statute does not have an override for surveillance authorized elsewhere by statute. The prohibition against installing a pen register or trap and trace device in 18 U.S.C. 3121(a) requires a pen register order unless an exception is met, but most of the exceptions relate to either provider needs to monitor the network or else consent. There are some national security exceptions, but they are very narrow. So if you conclude that collecting bulk metadata amounts to the installation of a pen register and/or trap and trace device, you’re pretty much stuck with getting a pen register order (either through the criminal law authorities or FISA authorities) or else you’re committing a misdemeanor violation of the pen register statute. And that’s true even if the President has entered some kind of order — say, under the AUMF — authorizing the collection. It sounds like the FISC mooted the issue starting July 2004 by granting a database-wide pen register order. As I mentioned in my first post on the leaked Verizon order, the interpretive issue would have been pretty similar to that which was necessary to get a full-database collection order of stored records under Section 215.

When a new Justice arrives, it is common to ask how the new Justice might vote differently than the Justice she has replaced. A recent speech by retired Justice John Paul Stevens gives us relative clarity on one example. In his speech, Justice Stevens explained that he likely would have voted with the majority in Maryland v. King, the recent 5-4 decision upholding DNA collection and analysis on arrest. His replacement on the Court voted the other way: Justice Kagan voted with the dissent, making the case 5-4 instead of what would have been 6-3. You can read Stevens’ explanation of why he would have voted with the majority here from pages 12-17.

Putting aside the propriety of a retired Justice announcing how he likely would have voted in a recent and controversial case — a question on which reasonable people will disagree — such a vote would have been consistent with Justice Stevens’ past Fourth Amendment decisions. More than other Justices, Stevens tended to focus on the degree of privacy implicated in the specific information obtained by the government — what I have called the “private facts” model of the Fourth Amendment search test. Thus he dissented in Kyllo (in which the thermal imaging device only revealed the temperature profile of the wall), and he authored the Court’s two major decisions concluding that methods of evidence collection that only reveal the presence or absence of narcotics are not searches (Jacobsen and Caballes, holding that drug tests and dog sniffs in the field are not searches).

Thanks to How Appealing for the link.

The President is, among other things, the Commander-in-Chief of the military. So if a President makes comments that could be interpreted as applying to cases pending in military courts, those comments could constitute “unlawful command influence”? Perhaps so. Stars and Stripes reports that President Obama’s remarks urging stern sanctions for members of the military found guilty of sexual assault were deemed to constitute “unlawful command influence” on sentencing in a military court.

Navy Judge Cmdr. Marcus Fulton ruled during pretrial hearings in two sexual assault cases — U.S. vs. Johnson and U.S. vs. Fuentes — that comments made by Obama as commander in chief would unduly influence any potential sentencing, according to a court documents obtained by Stars and Stripes. . . .

“The bottom line is: I have no tolerance for this,” Obama said, according to an NBC News story submitted as evidence by defense attorneys in the sexual assault cases.

‘I expect consequences,” Obama added. “So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.”

The judge’s pretrial ruling means that if either defendant is found guilty, whether by a jury or a military judge, they cannot receive a bad conduct discharge or a dishonorable discharge. Sailors found guilty under the Uniform Code of Military Justice’s Article 120, which covers several sexual crimes including assault and rape, generally receive punitive discharges.

As the story notes, this ruling could have an impact on many sexual assault cases throughout the military. This would mean that the President’s comments urging stiff punishments could actually force military courts to impose less severe sentences. Yet as the story also notes, military courts have not looked favorably on such “unlawful command influence” arguments in the past, “under the logic that statements by high-level officials lose their effect as they reach the military’s lower levels.”

UPDATE: Politico has more here.

A Reason article argues:

In the first flush of stories about how the National Security Agency is surveilling American citizens, one stomach-turning revelation hasn’t gotten the attention it deserves: we get the surveillance state we deserve because rank political partisanship trumps bedrock principle every goddamn time on just about every goddamn issue....

The same predictable, partisan-fueled march of the lemmings shows up in questions about monitoring email. In 2002, when wisps of smoke still rose silently from the World Trade Center’s wreckage like lost souls in search of some beggared form of heaven and Attorney General John Ashcroft still attacked anyone who “would scare peace-loving people with phantoms of lost liberty,” Pew asked, “Should the government be able to monitor everyone’s email and other online activities if officials say this might prevent future terrorist attacks?” To our credit as the Land of the Free, more Americans said no (47 percent) than yes (45 percent). In the latest tally, the nos have increased by 5 points, to 52 percent while the yeses have stayed at the same level.

Among Republicans and Democrats, however, situational ethics runs the show. Fifty-three percent of Republicans said yes and 38 percent said no. Now, 45 percent say yes and 51 percent say no. Democrats present a mirror image. Back in 2002, just 41 percent said yes and 51 percent said no. Now, the corresponding figures are 53 percent and 43 percent.

Such inarguably party-fueled reversals are nothing new ....

[T]he virtually unyielding preference for partisanship over principle explains why regardless of which party controls the government, the surveillance state continues to grow....

Now I agree entirely that people’s views of policy are sometimes driven by whether they like the party that’s implementing the policy. But the numbers given in this article are consistent with 5/6 of Democrats and Republicans taking the same view in 2002 and today.

If the 38% of Republicans who said no still say no today, and the 45% who say yes new said yes in 2002, that amounts to 83% (out of the average of 93.5% responding) whose answers were the same. Likewise, if the 41% of Democrats who said yes still say yes today, and the 43% who say no now said no in 2002, that amounts to 84% (out of the average of 94% responding) whose answers were the same. (I oversimplify here by assuming that the same people were surveyed today as before, despite the changing composition of the public overtime; but if you relax that assumption, then the consistency rate might be even higher.)

And if this so, then it’s more accurate to say “Among about 10% of Republicans and Democrats, however, situational ethics runs the show,” “such inarguably party-fueled reversals among a small fraction of the population are nothing new,” “the same predictable, partisan-fueled march of a small minority (though perhaps it’s an influential swing vote) shows up,” and “the virtually unyielding preference for partisanship over principle among 10% of the partisan public.”

Now of course it’s possible that more voters changed their minds because of partisanship — at one extreme, for instance, perhaps all 51% of the Republicans who disapprove of monitoring under President Obama fell within the 53% who approved of it under President Bush. But then most of the 45% of Republicans who approve of monitoring under President Obama must have approved of it under President Bush, which is an odd result if one is attributing the changes to partisanship. And in any event, the article introduces no evidence of these partisan shifts. Perhaps the only-partisanship-can-explain-it swing is bigger than the roughly 10% I identify above; but the data the article points to can’t establish that. (The article also points to another study that shows a slightly largely swing from 2006 to 2013, though with slightly differently worded questions; but that study, too, shows that as many as 77% of Republicans and as many as 81% of Democrats could have had the same view from 2006 to 2013.)

And of course there are also other possible explanations that might further decrease our estimate of people who changed their views just because of partisanship. As the Reason article notes, some people might have changed their minds. Some people might have generally the same view of the big picture, but see it playing out differently shortly after 9/11 than it does now, many years later. Plus the composition of the respondents changes over a decade — some people die, others come of age, and others shift among the Republican/Independent/Democrat pigeonholes. l

So I’m happy to stipulate, just based on my understanding of human nature, that some people will answer exactly the same policy question differently depending on who’s in the White House. But it may well be that, at least on these issues, those people make up a small minority of the population (albeit one that, as I noted, might be an important swing vote). And while it’s possible that those people may actually be a large minority or even a majority, I don’t think the data offered by the Reason article shows that.

Ilya Shapiro (Cato) has the scoop. An excerpt:

On April 29, Sir Jay Merchant was knighted by Ambassador Rudolf Bekink on behalf of Queen Beatrix of the Netherlands. Merchant is the “international relations adviser” in the Office of the Administrator of CMS, which is the agency’s highest executive office.

While this may seem like just a neat factoid for inside-the-Beltway water-cooler amusement, there’s actually a constitutional problem that precludes this gallant story from having a fairytale ending. Article I, Section 9, Clause 8 (the “Emoluments” or “Titles of Nobility” Clause) states:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

In other words, it’s illegal for someone holding a federal “office of profit or trust” to accept a knighthood or other noble title. And this isn’t some archaic provision that hasn’t been dusted off since knights wore suits of armor. Believe it or not — and nothing is unbelievable when it comes to Obamacare implementation — this isn’t the first time this issue has arisen. It’s not even the first time in the last decade!

A Justice Department memorandum by our own John Elwood, related to the “Emolument[s]” part of the clause, makes an appearance. Ilya’s view is that the acceptance of the knighthood is indeed a constitutional violation, unless Congress consents. “[D]espite the word ‘adviser’ in his title, Merchant is not just a member on a government advisory board .... [H]e was not given approval by Congress to be knighted, as required by Section 9, and there is no public mention of his having requested such approval.”

“Tap It: NSA Slow Jam,” from ReasonTV, Remy, and Meredith Bragg. Very funny, and nicely executed.

I purchased a Dell laptop a few years ago and it has been serviceable.  Except for one thing–the horrible integrated webcam.  The first was defective and had to be replaced.  Now my computer is telling me that it doesn’t detect any webcam.  As far as I can tell, the only thing worse than a Dell webcam is the quality of its customer support in answering this question, because many other people seem to have had this same problem and no one seems to know how to fix it (I’ve tried several different fixes that are supposed to work).  It is amazing how many people have complaints about that particular product.

Are there any smart VC readers who have had this problem and actually have a fix for it?  I wouldn’t be the only one who would see this as a great service.

Salimbene di Adam, in the late 13th century, quoted an anonymous source in his Cronica, commenting on the corruption in the Roman Curia:

Accusative ad curiam si ceperis ire,
Proficis in nichilo, si pergis absque dativo.

The “nichilo” is a medieval spelling of “nihilo”, which shows us that they pronounced that “h” in late-13th-century Italy. (Or wherever and whenever that guy he was quoting lived, but I figure Salimbene would have changed the spelling to something he was comfortable with; they weren’t so punctilious about that stuff then.)

This means, basically:

If you get the idea to go to court accusatively,
You won’t succeed in anything if you proceed without the dative.

In other medieval Latin humor, around the same time, Pope Boniface VIII was talking to one of his cardinals, Jean Lemoine, who was advising that he should cancel some grants made by his predecessor because they were made without consultation by the cardinals. Of course Popes didn’t like it when cardinals suggested that Popes had to consult with them to act legitimately. Boniface VIII ended up canceling the grants, but first he blew up at Jean Lemoine, who was from Picardy:

Picharde Picharde tu habes caput Pichardicum, sed per Deum ego piccabo te, & faciam in omnibus velle meum, & non dimittam pro te neque pro omnibus qui estis hic, sicut pro asinis.

This basically means:

Picard, Picard, you Picard-head, by God, I’m going to pike you, and I’ll do what I want in all things, and I won’t cancel [those grants], for you nor for all the other[ cardinals] here, as I wouldn’t for asses.

The Double Jeopardy clause of the Fifth Amendment provides that no person can “be subject for the same offense to be twice put in jeopardy of life or limb.” Despite its text, the Double Jeopardy clause has been interpreted by the Supreme Court to allow both the federal government and a state government to bring charges for the same conduct because they are separate sovereigns.

In a very interesting cert petition that was recently filed, Roach v. Missouri, the petitioner asks the Supreme Court to overturn this doctrine on originalist grounds. Here’s the question presented:

Under the original meaning of the Double Jeopardy Clause, a prosecution by one sovereign barred subsequent prosecutions by all sovereigns. But the Court strayed from this original meaning when it adopted the doctrine of “dual sovereignty,” which permits prosecutions by multiple sovereigns. Criminal defendants thus now have less Double Jeopardy protection than they had at the Founding. This petition presents unequivocal historical evidence that dual sovereignty is inconsistent with the original meaning of the Double Jeopardy Clause.

The question presented is whether the Double Jeopardy Clause bars a state prosecution for a criminal offense when the defendant has previously been convicted of the same offense in federal court.

The petition is certainly unusual: It asks the Court to overturn its longstanding precedent based on a historical argument without identifying a split or lower court confusion. But the historical argument is a very interesting one. At least on a first read, it seemed pretty persuasive to me. For some similar thoughts from co-blogger Paul Cassell, see Paul G. Cassell, The Rodney King Trials and the Double Jeopardy Clause: Some Observations on Original Meaning and the ACLU’s Schizophrenic Views of the Dual Sovereign Doctrine, 41 UCLA L.Rev. 693, 709-15 (1994).

It’s United States v. Ali (D.C. Cir. June 11, 2013), and it cites an article by our own Eugene Kontorovich. Here’s the introduction:

Ali Mohamed Ali, a Somali national, helped negotiate the ransom of a merchant vessel and its crew after they were captured by marauders in the Gulf of Aden. Though he claims merely to have defused a tense situation, the government believes he was in cahoots with these brigands from the very start. Ali eventually made his way to the United States, where he was arrested and indicted for conspiring to commit and aiding and abetting two offenses: piracy on the high seas and hostage taking.

The government says Ali is a pirate; he protests that he is not. Though a trial will determine whether he is in fact a pirate, the question before us is whether the government’s allegations are legally sufficient. And the answer to that question is complicated by a factor the district court deemed critical: Ali’s alleged involvement was limited to acts he committed on land and in territorial waters — not upon the high seas. Thus, the district court restricted the charge of aiding and abetting piracy to his conduct on the high seas and dismissed the charge of conspiracy to commit piracy. Eventually, the district court also dismissed the hostage taking charges, concluding that prosecuting him for his acts abroad would violate his right to due process. On appeal, we affirm dismissal of the charge of conspiracy to commit piracy. We reverse, however, the district court’s dismissal of the hostage taking charges, as well as its decision to limit the aiding and abetting piracy charge.

In March, Director of National Intelligence James Clapper told a Senate Committee that the National Security Agency does not “collect any type of data” on Americans, at least “not wittingly.”  Recent leaks about NSA surveillance activity suggest this was not true.  Here is Clapper’s exchange with Senator Wyden from the March hearing:

Senator Wyden: “Last summer the NSA director was at a conference and he was asked a question about the NSA surveillance of Americans. He replied, and I quote here, ‘... the story that we have millions or hundreds of millions of dossiers on people is completely false.’
“The reason I’m asking the question is, having served on the committee now for a dozen years, I don’t really know what a dossier is in this context. So what I wanted to see is if you could give me a yes or no answer to the question: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

Clapper: “No, sir.”

Wyden: “It does not.”

Clapper: “Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.”

In a recent interview with NBC News (via Yahoo News), Clapper defended his response:

I have great respect for Sen. Wyden. I thought, though in retrospect, I was asked [a] ‘When are you going to stop beating your wife’ kind of question, which is ... not answerable necessarily by a simple yes or no,” Clapper said.

“So I responded in what I thought was the most truthful, or least untruthful, manner by saying ‘no,’” Clapper said, indicating that he did not consider it “collection” unless government officials actually reviewed the content of the communications. The NSA program, regarding phone records, scoops up “metadata”—phone numbers called, duration of calls, location and the like.

This is not much of an explanation. It’s hard to argue that the NSA has not been engaged in the “collection” of information. If members of Congress are looking for an Administration official who gave untruthful testimony, it sees to me Clapper is a better candidate than Eric Holder. There is an added wrinkle here, however, is that it is not clear to me whether Clapper could have given a direct (and truthful) answer in a public hearing, as such an answer would have required him to disclose the existence of a then-classified government program. Even a non-answer or evasion could have revealed the existence of operations the NSA was trying to keep secret. In such a situation I would think one response would be to correct the record with the committee after-the-fact. Yet according to Senator Wyden’s office, no such correction was forthcoming — even after the Senator’s office gave him an opportunity to amend his answer. Admittedly Clapper was in a difficult situation, but it’s nonetheless clear that he was not truthful to Congress.

Google argues that the answer is “yes,” in this oral argument today in the Ninth Circuit in Joffe v. Google.   It’s an interesting question as a matter of statutory interpretation, largely because Congress wasn’t thinking about wireless Internet networks when it was writing about “radio communications.”  The statute reflects different carve-outs from different eras that each reflected technologies of its era, all of which now are now barnacles on the hull of the statute that exist decades later when the technologies are very different. As a common sense matter, it would be surprising if the courts hold that anyone can intercept unencrypted wireless communications.  It would be the kind of surprising interpretation that I suspect Congress might revisit if the courts reach it.  But purely as a matter of statutory interpretation, it’s an interesting and difficult question.

For further reading, I offered a blog post related to this issue here.  I have also written at length on the Wiretap Act as a whole in Sections 4.5-4.6 of LaFave, et. al. Criminal Procedure.  Thanks to Howard Bashman for the link to the 9th Circuit oral argument.

UPDATE from the comment thread:  ”One thing that makes the issue interesting is that the norms surrounding the issue have changed pretty quickly. A decade ago, the default was to use the unsecured mode; use of the secured mode was uncommon. Today, the default is to use the secured mode; use of the unsecured mode is uncommon. As a result, a lot of people have a very different reaction to the issue today than they had a decade ago. Meanwhile, it’s the same statute.”

The Washington Post has an interesting new poll out about public reaction to the recent disclosures that the NSA is getting access to all domestic call records, or at least all records held by particular telephone providers. I thought I would ask the Post’s poll question to readers here, and then hide the result of the Washington Post’s poll below the break.

Here’s the Post’s question:

As you may know, it has been reported that the National Security Agency has been getting secret court orders to track telephone call records of MILLIONS of Americans in an effort to investigate terrorism. Would you consider this access to telephone call records an acceptable or unacceptable way for the federal government to investigate terrorism?

For the results of the Washington Post poll, see below the break.

Continue reading ‘A Reader Poll on the NSA Call Records Program — and Public Opinion on the Same Question’ »

The Center for American Progress and its affiliated 501(c)(4) Center for American Progress Action Fund often attack conservative and libertarian organizations as tools of corporate interests.  The latter’s Think Progress blog, for instance, has often suggested corporate donations undermine the credibility of CAP’s ideological adversaries.  This makes a recent report and follow-up in The Nation on CAP’s own corporate support quite interesting.  CAP claims to not be influenced by its receipt of corporate money.  That may well be true, but it would be easier to credit such claims were CAP and its affiliates more willing to give others the same benefit of the doubt.

As he has for the past 30 days, Paul Caron rounds up the latest on the IRS scandal.  Among the key developments are claims by IRS employees in the Cincinnati office suggesting D.C. involvement in the targeting of conservative groups and renewed allegations that an IRS employee released confidential tax information of a conservative group.  Meanwhile, the IRS has been further embarrassed by reports of lavish conferences, including one in 2010 that cost over $4 million.