Domestic Surveillance By the NSA?:
James Risen and Eric Lichtblau break a tremendously important story in tomorrow's New York Times about a secret program that has permitted the NSA to spy without a warrant inside the United States. The story begins:
Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.How much monitoring is occurring? Here's what the article says:
Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.
The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.
While many details about the program remain secret, officials familiar with it say the N.S.A. eavesdrops without warrants on up to 500 people in the United States at any given time.Is this legal, you're wondering? The article offers this:
Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States - including American citizens, permanent legal residents, tourists and other foreigners - is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation.According to the story, some officials objected, and DOJ audited the program:
. . .
The legal opinions that support the N.S.A. operation remain classified, but they appear to have followed private discussions among senior administration lawyers and other officials about the need to pursue aggressive strategies that once may have been seen as crossing a legal line, according to senior officials who participated in the discussions.
Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.I hope we'll be hearing more about this in coming weeks, as this is big news. While the statutory privacy laws have an exception for this type of monitoring, see 18 U.S.C. 2511(f), and the constitutional limits on e-mail surveillance are uncertain even in traditional criminal cases, the constitutionality of warrantless interception of telephone calls in situations like this is really murky stuff. To get up to speed on some of the issues, check out Judge Sand's opinion in United States v. bin Laden, 126 F.Supp.2d 264 (S.D.N.Y. 2000). (.pdf)
You follow this sort of thing. What would you have said, yesterday, if someone had asked your opinion on the chances that this sort of thing was happening, and if so, whether it was authorized by law?
There seem to be two basic requirements that must be met for such monitoring. That the individual monitored has some connection to a terrorist group (albeit, it appears it only has to be a tenuous connection) and that the individual must be calling someone outside of our shores.
Works for me (assuming they abide by those requirements).
Me neither. I'd rather be safe than private, to keep it simple. I trust the NSA. I don't trust the ACLU. That's what is boils down to.
And so it begins. I see another Korematsu in our future.
So maybe Smithy used a false dichotomy to make a rhetorical point. However, in having to err on one side vs., another, I'd rather err on staying alive.
Just a personal opinion though.
I mean, sheesh, only DRUG DEALERS and TERRORISTS need to keep their conversations from the police, the right to face (intimidate?) their accusers in court, the right to sneaky lawyers who can raise all kinds of technicalities, the right to a jury trial (because juries are dumber than judges, the government's judges will put all the guilty people away right quick), the right to a speedy trial (hey the government needs time to decide what Jose Padilla did or did not do), the right to examine the evidence used against them (sources and methods!)....
WHO DETERMINES whether the person whose rights are being violated has "connections to a terrorist group?" The CIA station chief in Skopje, who drugged and tortured a random German citizen for months on end?
Why, if those darned LIBERALS have their way, some pointy-headed JUDGE or other supposedly neutral party... the whole warrant thing, ya know.
Humble Law Student, why are you studying law? who needs law if the government is trusted to make all the right decisions anyway?
This is the definition of lawlessness.
Yes, while were at it, why don't we just imprison all of the Japanese Americans. Oh wait, I'm fifty+ years to late. Umm, I mean the Arabs or something.
The slope isn't exactly made of ice...
I study law because I don't want to trust my country to people like you.
Everytime my husband and I try to get discovery in any of our cases it gets cut off, in one case by a district judge even after the magistrate ordered disceovery to be turned over. In the Vessel case, to try to wrestle the arrest from us, an admitted (recognized by the district judge) perjuring witness was brought forth to defeat our claim.
After I posted the below excerpt, when my husband sent my computer (a voice-recognition Speech-To-Text disability assisitve device) in for repairs to the manufacturer it now appears my computer device may have been seized by Patriot Act investigators, as it has been hijacked with no explanation for more than a week and a half, when on previous repair it was returned due to my disabilities in 2 days. Has my disability device now been seized?
First a perjurer, and now my disability device?
If there has been an abuse of the Patriot Act against my husband and I for seeking to enforce ADA and First Amendment rights, and this abuse would include taking a disability device away from a disabled person to prevent her unpopular cases from going forward in the Supreme Court and Eleventh Circuit Court of Appeals, this should be an affront to every person who cares at all about civil rights and civil liberties. It would seem even a wheelchair or a seeing eye dog could be now be seized, and one has to wonder if the express conflict preemption provision of "other federal laws" under the ADA repeals in whole or part the immunity and non-disclosure provisions of the Patriot Act, since a retaliation against a disabled person is not a legimitate law enforcement objective and is defined by the ADDA as unlawful.
Just my two cents, but if my husband and I are on the domestic Patriot Act abuse lists, I wish someone would tell me why a person who passed a bar examination with necessary reasonable accommodations poses such a perceived "threat" to anyone just for trying to get accommodated.
The previous excerpt:
12. Before the ADA litigation, my life and that of my friend (who got his Florida bar admission and became my husband) was relatively uneventful; evidently, however, my ADA civil rights litigation was unpopular, afterwards we became subjected to:
(a.)numerous entrapment attempts on both my husband and I, one of which involved a convicted federal bank fraud who appeared to be an informant;
(b.)appx. 6 attempts by people to run us off the road while driving places, one of which caused an accident resulting in two Secret Service agents showing up in the hospital emergency room a family member was taken to by ambulance from the accident scene;
(c.)much electronic interference with our cell phones, computers, and television, and very shortly after my ADA Federal suit was filed, an apparent 'sneak and peek' attempted boarding of our vessel, aborted upon discovery I was on the vessel with a camera, followed two nights later by what appears to have been a DEA task force response to a fictitious scenario my husband and I spoke in the privacy of our vessel home to determine if we were being electrnically surveilled without our permission (local police filed a police report about the 3 am attempted boarding incident, inexplicably refused to pursue the fleeing suspects, and minutes later four law enforcement officers showed up in the same cab in which the suspects fled asking to 'be paid for this');
(d.) during Florida's Hurricane Jeanne, the vessel adjacent to our vessel appeared to be deliberately reckelessly tied to ensure it would break loose at the height of the Hurricane and crush our vessel with us on it like a watermelon (4-5 mooring lines instead of 12 required for Hurricanes, placed so low on tie pole as to ensure breakage at height of Hurricane storm surge), and my husband had to leap onto the vessel in peril in 75+ mph Hurricane force winds to secure it to save my life; the following morning, someone placed the vessel's 220 voltage electrical line under our dock to intimidate us;
(e.) I complained to the local police (defendants in the ADA federal suit) who investigated the previous 3 am vessel boarding incident to investigate who would have tied the vessel adjacent to us like that and put the 220 voltage line under our dock, and my husband and I were told to 'go to the Coast Guard;'
(f) For the next 3 months, no one came back to that vessel adjacent to us, so my husband and I filed in admiralty and arrested the offending vessel we had successfully saved from marine peril at the height of the Hurricane(breaking loose); the only witness the Defendants brought forth was a former Coast Guard E-9 petty officer, who committed perjury in open court before a federal magistrate (the district judge has recognized the perjury in the record of the case on PACER);
(g) The vessel case has dragged on for more than a year and we are still not beyond resolution of the "expedited" post-arrest hearing, since the perjurer's testimony was stricken; at that hearing striking the testimony, the courtrooom was filled with people who looked like federal governmental people, and the Defendants were authorized by someone to park in the spots reserved for the US Marshal; it is questionable who owns the vessel given two $1 transfers on the title; and we ordered the transcript of the hearing two months ago and the Court reporter still has not filed the transcript;
(h) My husband and I made FOIA requests on federal agencies, and after this in every federal agency in which we had something pending, all were promptly denied: DOJ discrimination complaints on Title II State public entities were inexplicably dumped based on Title III of the ADA, my Social Security disability appeal is not being docketed and I am not being given any hearing (filed more than a year ago), and a medical doctor for the US Attorneys' Office in Tampa wrote in a medical report used against my husband that he had reviewed my videotaped deposition, which was never taken because I filed a motion to quash, which report the Tampa US Attorneys Office used to coerce my husband to drop his student loan proceeding;
(i) We then brought suit against the perjurer in the vessel case for running up vessel fees during the arrest, who admitted he committed perjury to protect the vessel and the owner, knew it was wrong, and also admitted knowledge (though did not personally participate in) the "commando raid" (his words) on our vessel home, the one at 3 am, the one where the local police told us to go to the Coast Guard;
(j) A magistrate ordered a discovery deadline in my ADA federal suit to investigate the 3 am attempted vessel boarding incident, which was abruptly cut off without explanation by the district judge to prevent the discovery, sending the case on appeal. What was there we would have found out in discovery?;
(k) my husband and I are repeatedly being subject to interference by one or more defendants, or their associates or employees, in our cases, almost every time we have a critical deadline. On the evening my United States Supreme Court Petition was due in my ADA federal suit, Docket No. 05-7771, two employees of a defendant put my husband and I right in the middle of emergency police operations, police cars screaming up to us at 50 mph out of nowhere, stopping just feet short of where we were about to go board our vessel, employing bright search lights, officer jumped out in a bullet proof vest with his hands on guns, and eventually ran after other people nearby in a chase - intentional intimidation? We need more discovery, but the defendants are fully aware part of my disability is posttraumatic stress disorder from having watched my mother die, and I took cover because I thought my husband and I were going to die in a spray of bullets for having the audacity to file my Petition in the Supreme Court;
13. A few days ago, msn reported that there was a botched "terror" investigation in Tampa, evidence was compromised, and an agent whistleblower said the Bush administration had tried to make a domestic terrorist case out of no evidence of any terrorism, and no arrests have ever been made in the case. (The whistle blower was Mr. German).
The reason I am writing about this in response to the Al-Arian Patriot Act discussion here is I think it is important when people discuss the Bush administration and the Patriot Act that is is conceivable two American citizens who only sought reasonable accommodations to pursue one's bar admission and restore a driver's license unjustifiably suspended — and the fact my husband represented his brother with brain cancer (gloioblastoma) as his attorney, together with the brother penning a ctitique of the Bush administration on Arianna.com called "Bin Laden Is Moses Reborn (which has no connection with myself or my husband other than purely by association) — were subject to an abuse of the Patriot Act by the federal government.
Of course, my husband and I are fighting for our right of discovery in these matters. We want to know if WE are the subject of the Tampa botched "terror" investigation solely because we brought forth an unpopular ADA disability civil rights case, and criticized the Bush administration's policies to pay for tax cuts for the rich by starving out the disabled, denying the disabled medical care, cutting the disabled from Social Security disability, refusal to enforce the ADA in employment and licensing opportunities, and because I took my case to the Supreme Court. And also because my husband's brother who is sick with cancer penned a critique of the Bush administration's anti-terrorism practices under a catchy titled blog thread that has more than 5000 entries by members of the public.
Surely, if my husband and I ARE the subject of an abuse of the Patriot Act, what everyone should know is this can happen to anyone, any American citizen, for simply engaging in First Amendment protected activities.
In sum, it would appear there may have been a substantial abuse of the Patriot Act as well as infliction of punishment on my husband and I by a deliberate attempt to ensure non-survival of two American citizens just for filing unpopular civil rights cases in America's Courts, and criticism of Bush administration policies, in order to silence and defeat civilian opposition to the policies of the Bush administration.
So, having written this, while before I believed in the Patriot Act, now I am having a hard time with the notion Congress should extend and expand the government's powers under the Patriot Act, as well as a hard time with the notion a person can have important legal rights denied based on "guilt by association" or holding unpopular views critical of the government.
The danger, of which our Founding Fathers were well aware, is abuse of ordinary citizens by an all too powerful government without Constitutional protections, and while all these things have happened to my husband and I as described above with no remedy, one thing is certain — the US Attorney has not done one thing to punish the perjurer. He is still walking free.
And you don't know me! How do you know I won't get a job at NSA and spy on YOU tomorrow? Do you know the people at NSA? Do you trust them?
In a nation of laws, such questions are irrelevant. We agree on certain rules, certain safeguards, like -- neutral magistrates that review warrants.
We trust that these offices will be occupied by good people, just like we trust the NSA folks. But we don't trust anyone absolutely, blindly, which is why we build these safeguards into the system.
If you really are studying law, I suggest you repeat some of your coursework. No accredited law school would teach you that "whatever the government decides is OK" is a legal principle. Rather, it is the antithesis of law.
Classified legal opinions giving the government the authority to violate well-established constitutional rights? On the apparent basis of an undeclared and endless "war?" George Orwell, white courtesy phone....
Please stop. You only make my case for me. I'll ignore your rampant ad hominems and address your "points."
Our system of law is designed for a purpose. The broad purpose is to ensure the safety and security of the citzenry from threats internal (other citizens, the government) and external, and of course is becomes more task specific in certain areas of law.
However, specific laws (prohibition of certain agencies from eavesdropping on Americans) merely serve as means to an end. Our system of law is and should be designed to allow our society to pursue the goals it sets. These goals are generally based on values, rather a value hierarchy. This system of values may also stress at different points in our common history certain values over others.
In this age of terrorism, I am completely in favor of a rather mild emphasis on the value of security over the value of "being free from government intrusion." You can make a normative argument arguing that my value emphasis is wrong, but that isn't the argument you are making.
You are conflating process and purpose. Sometimes, the process is tinkered with to better achieve the purpose. However, please stop making the mistake of confusing process with purpose and making any change in process a negation of our purpose. Feel free to make normative arguments all day long, I will engage you on those, but stop with this misleading rhetoric.
Don't we do a lot of talking about "freedom" and "liberty" and "democracy?" Aren't we fighting to bring those concepts to places like Iraq? Remember the talk about "the rule of law" a few years ago?
What does that mean? It means that we enjoy certain rights, that government can't just do whatever the hell it wants so long as it is asserting a noble purpose (like "security.") What dictator, what tyrant, has ever failed to assert the common good as a pretext for absolute rule?
Take away our Bill of Rights, our notions of a limited government of enumerated powers, of checks and balances, of due process, and what's left? A SAFER country? Doubtful. A FREE country? Not at all.
There is nothing misleading in my rhetoric. We have here the government conducting warrantless surveillance on citizens within the USA. That's not at all a close question.
You can argue the Fourth Amendment is a bad idea. You can argue that ANY constitutional right is a bad idea, since they all frustrate law enforcement and can be said to enable criminal/anti-social/destructive activity in some sense.
But "I trust the government to keep me safe so I don't care what it does" is not a legal principle, and this NSA program is not remotely legal under our constitution.
Some people always imagine themselves heroes, living in dangerous times requiring extreme feats of derring-do and a lot of tough talkin' rule bendin'. These people tend to work for government, or support authoritarian governmental actors. It's easy to see why. It justifies their power, enhances their sense of self-righteousness.
On any day of our country's history, someone could have made themselves believe that our rights are just "process" necessarily sacrificed against the Immediate Threat to The Republic. This time is no different. It's just egoism rising to the level of criminality.
Perhaps if prosecution results from interceptions under this executive order, such prosecutions will fail.
But if interceptions prevent one terrorist act, by intervention of law enforcement or military authorities, who will complain? Maybe some of the commenters on this thread. Certainly not the intended victims.
And if someone complains, the effect will probably be merely political.
That was a risk the CIC was prepared to take.
Were I in his position, I probably would have taken that risk as well.
The United Kingdom.
That bastion of repression.
Terrorism is bad. The attacks were bad. But let's not forget it was less than 3,000 people. That's about 0.01% of the population. Am I the only one who wants to shift the mild emphasis to things like heart disease, cancer, education, tooth decay, whatever....
We have a lot of people screaming "terrorism" or "9/11" to justify laziness and apathy in all these other areas that will substantially affect most of our lives astronomically more than terrorism. If terrorism was really a threat they would be monitoring the ports and the borders. They're not. Know why? Because it's a smoke screen. Monitoring shipping and the borders is HARD. Lessing to people's phone calls is EASY.
There will always be terrorism, just like there will always be car crashes. Let's move on and stop using it to chip away our rights.
It's late. Sorry.
Just watch the political effect from this.
Really, Rhoads, why can't we use your logic to dispense with the bill of rights in its entirety? THINK of all the crime that could be prevented! Who would complain? Just a few lawyer types, but not the intended victims.
Are Americans willing to surrender their rights wholesale to prevent crime/terrorism? Do Americans trust the government THAT much? If Bush thought so, he really has an inflated sense of himself.
Rhoades, you think of Bush mainly as the "CIC," as he orders surveillance on the domestic population. Most people, however, see Bush first not as a military leader, but as a civilian President who has taken an oath to defend the constitution. Our "war on terror" has outlasted the time between Pearl Harbor and V-J Day, and the tired militaristic rhetoric("CIC") will not fool a public that viscerally understands, at some level, that this doesn't smell right.
Argument by assertion: that's a pretty crappy standard.
Process is not the purpose. Our process is generally seen and believed to be good at delivering the "results" we want. That is why we use it.
It is this false delusion about process that causes so many problems. Democracy is a process. However, only certain types of democracies are able to deliver the results desired. Churchill talked about democracy being the worst form of government aside from all the rest. His point rings true.
We have our system in place because it is a "system." A system to achieve "something." Without this "something", the system itself is meaningless. Goals, values, beliefs are what give life and meaning to the system. We have just settled on a particular system that we believe best gives us what we want.
So, please stop this false conflation of yours. If process was all that mattered, then you surely couldn't object to a hypothetical in which the entire population of the US consisted of hardcore Islamic fundamentalists. If it is about the "system", things couldn't be too bad. Because afterall, the system (process) is what it is all about. Right?
Wrong!
It's worse than that. Since this is a warrantless process, there is no reviewing authority that keeps the executive branch honest. We have to take them at their word that they had a hunch and that the person at the other end wasn't in the United States.
All we can really know is that they wanted their actions to be unreviewed and unreviewable.
Orin, you follow this sort of thing. What would you have said, yesterday, if someone had asked your opinion on the chances that this sort of thing was happening, and if so, whether it was authorized by law?
Outcome determinative law is not law.
The purpose of our law is not to yield particular results. It is to be fair, to give due process, to respect certain righs and institutions that we recognize as yielding just results, whatever those are. You sound like the Queen in Alice in Wonderland, "verdict first! trial later!"
Our constitutional rights are not mere gimmicks to be discarded when someone doesn't find them convenient to some personally desired vision of what should be. Law is nothing but process. Due process.
Would I object to the entire population of the US becoming hardcore islamic fundamentalists? Assuming everyone still honored the constitution, I'd prefer them to a population entirely like you. Despite their islamic fervor, I would still not have the NSA spy on me without a warrant. And while I find islamic fundamentalism repugnant, I don't see how the government can prevent moslems from proseltyzing and freely adopting their beliefs. Or would you suspend the First Amendment because, hey, we're at war with some islamic people.
I'm quite surprised about this, as this seems like a considerable departure from the NSA's traditional role. On the legal question, though, I don't have very reliable instincts: my area of expertise is surveillance for criminal investigations, not intelligence investigations. My instinctive reaction is that this seems odd in light of FISA, and questionable in light of the bin Laden case I link to above, but I'm not enough of an expert on this to have more than a very vague sense.
In my opinion, Government should be the opposite of a purposeful enterprise. It should allow all purposes, all goals, beliefs, in every direction- as long as those beliefs don't commandeer the others. If men were angels, there'd be no need for government. Good old Jimmy Madison said that, right? Government should be a check on our ambitions, and that's it.
Another smart dude named Ben Franklin liked to say that those who would give up a little liberty for a little security will wind up with neither and rightly so.
I agree with those hombres. But I think it's great I don't have to.
Hasn't "project Echalon" been standard grist for the less loony parts of the conspiracy theory mill for some time?
How in hell did the NYT make up this story? Where's the evidence, the proof that it ever happened?
Seems to me to be just another conspiracy theory.
Not saying it's not happening, but I've heard it all before.
Presumably if the White House didn't make such a request, or Senator Rockefeller hasn't expressed such reservation, we'd hear about it quite quickly.
Been There sounds like a law professor spanking a 1L gunner in Con Law class. I just want to say that's pretty entertaining.
Basically, the counterargument I'm hearing is that some people think that the end justifies the means in law. Is this seriously a principle some folks are getting behind? It seems to fly in the face of everything the Bill of Rights is all about. I guess due process and human liberty is held in rather cheap esteem by some folks. Which is pretty sad, given all the blood, sweat and tears that have been shed to secure those for our society.
Also, I just thought this needed to be said again:
"Another smart dude named Ben Franklin liked to say that those who would give up a little liberty for a little security will wind up with neither and rightly so."
Finally, "Humble" Law Student, I do not think that word means what you think it means.
Echelon allegedly allows the NSA to monitor just about any phone or e-mail conversation that occurs, conducted by US citizens and non-citizens alike. They allegedly get around the prohibitions on spying on US citizens by using personnel from the intelligence agencies of other countries. For example, they might get MI5 or MI6 personnel to monitor our citizens, in exchange NSA or US military personnel would spy on UK citizens. This was all allegedly going on pre-9/11.
If the suspicions about Echelon are true, I don't know why they'd bother to raise the profile of this now. Maybe they want try to maintstream and legitimize it so they can actually use it as evidence in US courts.
In any case if the suspicions about Echelon are true it just illustrates that government agencies with little oversight and transparency will do whatever the hell they want, and will use whatever cheap excuses they can to violate citizens' rights. And how would anyone know for sure? Maybe someone might write a book 20 years from now, that is if FOIA is still around by then.
And of course this is all of dubious value - didn't prevent 9/11, hasn't caught Osama, etc.
The trouble with that approach is that there is no end to that logic. Any proposed surveillance method will encounter at least some opposition. Approval for any surveillance method might tip off someone that it could be used against them.
If this is a true concern, why bother renewing the Patriot Act at all? Wouldn't the same concerns apply to the library records provision, for example? (Now the terrorists will get their free Internet elsewhere and we won't be able to track them down in the local library.) Instead, the adminitration could get a legal opinion stating that the ground for using any proposed surveillance method (e.g., searching library records) lies in the President's inherent power as CIC and/or the 2001 Congressional Authorization to Use Force.
I'm starting to wonder if the Bush OLC folks think there are any limits on the powers of a president during wartime. Apparently none of them have ever read the steel seizure case (not to mention Hamdi).
So, why did the Times decide to publish now? What changed in the past year? Presumably, it did not take a whole year for the Times to hear out all of the senior officials or to do additional investigating.
Inquiring minds want to know!
"Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted."
"Electronic surveillance" as defined in section 101 of FISA includes "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States." 50 USC 1801(f)(2). So, it looks like the privacy laws plus FISA define the "exclusive means" by which this surveillance could be conducted. And it looks like the Administration did not follow the FISA procedures when conducting this surveillance.
Indeed, as I understand it, that would ordinarily be a crime under 50 USC 1809(a)(1), because such surveillance would not be "authorized by statute". I take it that is where the 2001 AUMF comes in. I'm not sure that the 2001 AUMF really provides authorization by statute for electronic surveillance outside of the FISA procedures, so I would also be worried about the legality of my acts if that was all the Administration had on its side.
How would anyone know? If they haven't obtained FISA warrants, then how would we know if there was probable cause that the targets were agents of Al Qaeda or some other foreign terrorist organization?
How quickly we forget only a couple years ago when Ashcroft told the Senate: "this is how its gonna be..."
You've just got to grin --and bear it-- when a new crop of the naive (young, idealistic lawyers) get all atwitter over some hint of reality. Not unlike the famous "Gentlemen don't read each other's mail".
It was 1967 when this information was published in The Codebreakers; and then in The Puzzle Palace published in 1982. This isn't news.
That the NYT will rehash it every so often during slow cycles isn't surprising. It is surprising a senior professor, with expertise in Internet surveillance law, calls it breaking a "tremendously important story".
On a previous slow news cycle (c.1980s, WaPo) reporters asked the owner of a trans-Atlantic phone service if he was concerned NSA might be listening. He replied he'd be more concerned if they weren't.
I'm not sure I understand your claim. Are you saying that the NSA was conducting electronic surveillance of persons in the US without FISA warrants before the President's 2002 Executive Order?
Indeed, Funny how "conservatives" and "originalists" seem to disappear whenever Nixon or Bush want to declare, essentially, that checks and balances or the Bill of Rights do not constrain a president in the execution of foreign affairs. Anyone who's read an ounce of history knows how dangerous such a principle is. The Founders--who had read a lot of it--knew this pretty well.
Smithy--your statement that the ACLU is more dangerous than the NSA is simply insane. You might reasonably dislike the ACLU or its values, but only one of these two entities has the force of the state behind it. To equate them as equally dangerous is ludicrous.
Humble Law Student--I'll combine an honest normative question with an unfair ad hominem that calls you a coward. Would you like to suggest the breaking point where your value balancing shifts back in favor of liberty in this "age of terrorism"? Or is the .00001% chance that you will be a victim of a terrorist act that the government may not even be able to prevent have you good and ready to embrace the ends justify the means" with no limit in sight?
Of course. Not me saying it; me citing the experts in the field. They've done it before they were NSA, have always done it, and always will.
See "standing army". You can't address one without the addressing the other: They are one and the same issue.
I mean, it's not like the NSA and DoD have been monitoring and recording every single telephone conversation between America and every other country in the Western hemisphere since the early 1990's out of Fort Huachuca! Or like they routinely share contents of any conversation regarding drugs with the DEA. Wait...
Seriously, I object to this, but I cease to be amazed that lefties only get on board against real violations of civil liberties when there's a nasty, old Republican in the White House. Disagree? Where were you on the question of the Federal government recording Americans' phone calls without probable cause in the early 90's, when this really got moving? Oh, that's right, you didn't care, because it was a right-wing wacko issue and you could trust Preisdent Clinton, anyways.
Posers.
We already have a way around this - we can just hold the citizen as an enemy combatant for as long as we like. Problem solved!
Here's a free tip. If you get a Fourth Amendment question on the Bar Exam, the correct answer will not be: "Call me a security whore, but the NSA said the defendant had connections to a terrorist group, and he was calling someone outside the country. Therefore, the warrantless search doesn't bother me very much."
They'll go over this stuff in BarBri. So don't worry if you haven't had a chance to take CrimPro.
Is there any evidence it was used to spy on would-be terrorists as opposed to regular citizens?
Who decides whether someone is a "would-be terrorist?"
Is a "would-be terrorist" anyone the government says it is? Is a "would-be terrorist" anyone the government is spying on?
Under FISA (and the Fourth Amendment), a judge gets to decide who is, or is not, a "would-be terrorist." This decisionmaking is absent from the program. That's the problem.
Valid point.
However, everyone here seems to be missing the President's justification:
-- the 9/11 attacks required sophisticated training and planning, the participation of a private militia operating with (at a minimum) the protection of a foreign power or powers, or perhaps even the with the approval and guidance of a foreign power (the Taliban).
-- with that in mind, it is not a stretch to consider the 9/11 attacks an act of war on the United States. Not a metaphorical war, mind you. A real war, in which soldiers trained on foreign soil with the approval of the host government entered the United States to engage in fairly standard war behavior. After all, they bombed(using a fuel laden jet) the Pentagon.
-- the Constitution commits the Commander in Chief power solely to the President. Part of this power is the power to defend the United States against attack. This power may not be abrogated by legislation. The power to defend the United States from an imminent or ongoing attack (the hot-button words are italicized) implies that the President may use the normal tactics of warfare to repel that attack. No one can deny that surveillance of the enemy is one of these powers.
For a very thorough explanation of this theory, see the work of Robert Turner and John Norton Moore at the University of Virginia's National Security Law Center.
So, back to the hot-button words. I don't believe anyone would argue that FDR needed to get a search warrant before he started intercepting communications between Japanese bombers over US airspace. I don't even think anyone would argue that FDR needed a search warrant to intercept communications between Japanese diplomatic officials in the United States, or between a Japanese national who worked as a cartographer on Oahu on a contract with the Japanese government. But, you say, that's because Pearl Harbor started a real war, and the post-9/11 war of terror wasn't, well, really real. In other words, either: (1) we weren't under attack; or (2) further attack was not imminent.
These arguments must be addressed on the merits. Of course, the "merits" are difficult to determine. And I would agree that the Bush Administration's typical defense -- "believe us, we reviewed the intelligence and we knew the enemy was planning more attacks" -- is properly subject to skepticism in light of the Iraq intelligence debacle.
But it is not valid to say that the President's Commander in Chief powers argument is, on its face, ridiculous.
It all depends on what you call an attack ...
Neal, sarcasm is an effective tool only when the writer knows what he's talking about.
Nobody's said that information gleaned from a Defense Intelligence domestic surveillance was used, or ever would be used, in a criminal court.
Of course, that's because it wouldn't. To try to use it in a criminal case would be to disclose the existence of the program, which is exactly what the Bush Administration wanted to avoid.
And if they did try to use it in a criminal case, it could indeed be subject to suppression under the Fourth Amendment.
Too bad your Bar Exam didn't cover national security law issues ....
So now, any citizen the government wishes to spy on within the United States is no different than an enemy airplane en route to a bombing mission.
Where do you people get this stuff? Are you for real?
Don't you see the HUGE illogical leap there? How do you get to a place where citizens using their telephone are legally the same as enemy bombers? Does the government also get to shoot at people using the telephone, because, you know, they might be dropping bombs?
But specifically without FISA warrants?
Just to clarify my question, since FISA was passed in 1978, the NSA been legally required to get a warrant from the FISC before it can conduct electronic surveillance inside the United States. The FISC has approved hundreds of FISA applications each year.
So, it would not be news that the NSA has conducted electronic surveillance inside the United States. What might be news, however, is that the NSA is doing so without first getting a FISA warrant.
Incidentally, James Bamford (the author of The Puzzle Palace) wrote an article in 1999 called "Loud and Clear". In this article he detailed the developments leading to the passage of FISA in 1978 and the ways in which it restricted the NSA. He also stated, "Based on everything I know about the agency, and countless conversations with current and former NSA personnel, I am certain that the NSA is not overstepping its mandate. But that doesn't mean it won't."
So, I'm not sure it is true that the experts you cite thought the NSA was violating FISA as of 1999. But they may have correctly predicted what began happening in 2002.
Is that because, as someone suggested, as long as the information is not used in a criminal trial against the person from whom it was obtained, why should anyone really care?
Wow. Some of the folks on the ends-justifies-means side of this debate haven't dealt with enough federal agents to appreciate, IMHO, how dangerous the "I'll trust the feds" theory is.
So, the government can violate people's constitutional rights all it wants, so long as it doesn't also prosecute them.
God Bless America. This is exactly what freedom, liberty, etc. is all about.
What happens in the inevitable 1983/declaratory judgment act case?
And who is to say there won't be a criminal prosecution? Not one as such, of course. Just call them "combatants" (or "Jap Bombers") and send them to Guantanamo for tribunal!
Or maybe, since warrantless searches are now OK, the exclusionary rule is the next logical thing to go?
Again, your argument is with the President's characterization of the 9/11 attacks, not with the legal (or even logical) argument that the President's Commander in Chief powers allow him to take military-type defensive actions to repel an attack.
Ask yourself a different question: assume that the US Government found out -- immediately after one of the 9/11 planes took to the air -- that an attack on the World Trade Center was the plan.
Surely you don't say the Government needs a search warrant to intercept a cell phone call between Mohammed Atta and one of his bosses on the ground in Florida? Between that Florida-based Saudi national terrorism planner and another terrorism planner (a U.S. citizen) in California? Between the U.S.-citizen planner in California and another U.S. citizen in Nevada?
It all depends on what you call an armed attack.
I don't disagree with you on your core point: the Bush Administration has adopted an extraordinarily broad definition of "war," and then found that the President's wartime powers provide legal justification for some quite extraordinary actions. But everyone seems too ready to make the indefensible arugment that even if a foreign force is in the midst of a bombing campaign, communications cannot be intercepted without a warrant (FISA or ordinary). And that argument is silly.
Okay, its hard to believe people so smart can be so blind, but let me s-p-e-l-l it out for you all.
WHY? Do you think we have our system of liberal democracy?
WHY? Do you think we have a system of law?
The answer is NOT because we want a system of law for its own sake.
The reason is because we believe it is the best system for ensuring the rights and security of the citzenry.
My point is discussing the tension between the process and its goals and how that tension is and should be dealt with (tension between the two is quite natural and inherent)
You are all purposefully misconstruing my words to meet with your hysterical stereotypes of individuals like myself.
I've never said just throw out the 4th or any other amendment.
All of your arguments are baseless because implicit in them is this assertion that the process as it stands is some holy creation that cannot be touched.
Well, either it can be meddled with or it cannot. If it cannot, then much of being an attorney or law prof is irrelevant if it never changes.
However, if it does and can change (constitutional amendments, interpretations, any of these ring a bell) then we should be having discussions of how those tensions should be resolved. What are our end goals? Process isn't is a goal, but NOT the only goal.
That is my argument - and perfectly rationale.
But go ahead, continue attacking me personally. I kinda like it.
The Constitution also says in Article 1, Section 8, that Congress shall have the power "To make rules for the government and regulation of the land and naval forces." So while I think it is true that the President could use the "normal tactics of warfare to repel [an imminent or ongoing] attack" without prior Congressional authorization, Congress also has the Constitutional power to define what "tactics of warfare" are lawful, and the President would be bound to faithfully execute those laws even when acting as CIC.
And FISA is, of course, just such a law.
"The Fourth Amendment protects people, not places."
cold warrior
The president's military powers don't make him the military ruler of the populace.
YES, a warrant is required in all the situations you describe, and it is not hard to get one from the FISA court. Warrants would doubtless have issued for Mohammed Atta.
Let's ask it another way. Suppose Atta was plotting to kill a single person. People do that every day. Does the government need a warrant to wiretap someone it suspects of plotting a crime?
That is a better argument. And I think it is the correct argument when talking about the Administration's position on torture. If the McCain Amendment passes, I believe it is constitutional (or, to be precise, "not an unconstitutional infringement of the President's Commander in Chief powers.") In fact, I don't even think we need the McCain Amendment since the President signed and the Senate ratified the UN Convention Against Torture, and treaties are binding on the U.S. Government. Which is why, incidentally, we get a lot of hair-splitting sophistry from the Administration in support of some weird proposed exemptions from the standard law (e.g., CIA torture outside the US is not within the scope of the Convention Against Torture).
But again: one can interpret FISA as a restriction on the tactics that may be used in gathering intelligence on foreign nationals. But is FISA really inconsistent with my theory? Did it really mean to restrict the President's ability to intercept communications between Mohammed Atta while he is in the air and one of his associates in another attack plane? In other words, does FISA apply to intelligence gathering on the enemy who is engaged in an ongoing attack? I don't think so.
Actually, there are many deontological arguments in favor of the Rule of Law. Additionally, there are also traditionalist and rule-utilitarian arguments that approach the deontological arguments on this issue. So, even if you are purely a consequentialist, you might think that we should not reassess whether the Rule of Law is a good idea each time possible negative consequences arise.
Cold Warrior,
I think one needs to distinguish a case in which the President literally could not comply with FISA due to time constraints during an emergency and the more general case of the President acting to defend the United States. In the prior case, which we might call a legitimate "emergency", the President might be excused from complying with FISA. But I would maintain that if it is possible for the President to comply with FISA, and FISA is otherwise applicable, then he does in fact have to obey the law even when acting as CIC.
Yes, if we'd known that he was a terrorist in waiting before he got on that fateful flight out of Boston.
But do you really mean to argue with my hypothetical involving interception of Atta's cell phone calls made while the plane was in the air? Do you really think it's practicable that the Administration run into the FISA court, present evidence, and get a warrant during the course of a one hour flight? How would we even know it was a one hour flight? Couldn't Atta have flown into the John Hancock building in Boston instead? Does the FISA statute really restrict the President's immediate ability to repel an ongoing attack? Is the answer "yes" if the attack is expected in 4 hours, but "no" if it is expected in one hour? Where do you think FISA draws the line? Where would you like to see the line drawn?
Back to my mantra: it is a fair criticism of the Bush Administration to say that many of the non-FISA surveillances were not aimed at stopping any kind of imminent attack, and that the Administration therefore was legally bound to go through the FISA process. But it is not fair to say that the FISA process is required when the attack really is ongoing or imminent, such that the harm would have already occurred in the time it would take to get a FISA warrant.
Oh, and the Senate placed a Reservation in its ratification of the CAT that said Articles 1-16 would not be self-executing. So, we do need to enable those provisions through additional laws.
Works for me
I hope you fail out of law school, Humble. Unfortunately, you obviously go to a very good one with a no fail policy, because otherwise you would have failed out already with that attitude towards the constitution.
Shame.
You're treating Been there, done that like he's somehow dumber than you. He's not. You need to stop.
You have on these boards attacked those mercilessly for a wide range of opinions you have then taken in other contexts. When it comes to campaign finance and affirmative action, its "can't you read?" not "Well, we have to secure rights and liberty."
But you're arguement now, though attempting to actually engage the text rather than parrot it, it off by a mile, and in doing so you fail to engage the people that you insult. What Near R., and Been There, Done That, and I, had I the patience to join the argument, were saying, was not that "we are a nation of laws because it's easier for law students to pass that way." What they're saying is "we're a nation of laws because we need to protect our rights and liberties, and historically giving the government overbroad police powers has been by far the biggest threat to the our democratic way of life." And your arguments fail to even acknowledge the history of both the founders and the Constitution since. You're young and, rather than Humble, you're extremely arrogant, and because in your nascant political life this has been the greatest focus of your attention, you assume that 9/11, unlike the Civil War or the New Deal, brought forth a new constitution, because Osama Bin Hussein is the GREATEST THREAT EVER, and all the checks and balances that have gotten this country through the Whiskey Rebellion, the War of 1812, the Civil War, Reconstruction, the Progressive Era, World War II, the Cold War, and Vietnam, are USELESS now. The argument is absurd, and the counterargument is so obvious it almost doesn't need to be said.
Assuming the conlusion, i.e. "we're a nation of laws in order to secure rights and liberties, and thus (the biggest intellectual revolution of our Constitution) that the laws apply to the executive are unneccesary, and if he invokes our rights and liberties in a "tenuous" sense, we don't need no stinkin' law" would fail you out of a rigorous law school. I'm sure at your law school, you got a B. Good times.
So calm down and try and treat your superiors as at least equals.
Then they came for...
Oh, wait, they're just going after those with links to terrorists making international phone calls.
Carry on!
The Fourth Amendment -- and every other protection in the Bill of Rights -- acts to limit executive authority in any and every form, including a President's war powers.
"[A]ll governmental power--even the war power, the power to maintain national security, or the power to conduct foreign affairs--is limited by the Bill of Rights." Kleindienst v. Mandel, 408 U.S. 753, 782-83 (1972).
And if the feds found out that a call to explode a bomb was about to be made, no search or seizure warrant would be needed. It's a classic "exigency." So an immediate interception or arrest would be totally appropriate.
Since they did not seek and obtain FISA warrants, how do you know there was probable cause to believe that the targets were agents of a foreign terrorist organization?
Thanks. I wasn't aware of that.
But that simply means that there is no remedy for a violation of the CAT without enabling legislation. The President is still obligated to conform his behavior to the dictates of his treaty obligations.
Off topic a bit, and you're reaching the limits of my knowledge of CAT, so I won't get into this any more ...
Right. And that's exactly where I've been trying to take this discussion. The 4th A. prohibits only "unreasonable" searches/seizures. Your scenario makes a search/seizure without a warrant both reasonable and necessary.
And similarly, the FISA should be read in a way that does not call into question the constitutionality of the statute. If Congress meant to infringe on the President's commander-in-chief powers and required the President to get a FISA warrant before the Army could do surveillance on an ongoing attacking foreign force, then the FISA would be unconstitutional.
A similar argument, of course, has been made in much greater depth with respect to the War Powers Act.
People making phone calls, even nasty terrorist people plotting for some event in the future, is NOT an on-going attack.
This is not about some event where the NSA had to rush out and bug someone RIGHT NOW RIGHT NOW ASAP and couldn't even get an emergency FISA warrant. This is about a PROGRAM of ON GOING violation of the law.
Humble may be in law school but he is not absorbing anything remotely legal. "Let's change the means until I get the ends I want" is not law. The ends, at least in this country, are -- DUE PROCESS, RULE OF LAW, SEPARATION OF POWERS, LIMITED GOVERNMENT, FUNDAMENTAL RIGHTS. You can't undo these because, as Humble fears, people might become muslim.
PRESIDENT PROCLAIMS A NATIONAL EMERGENCY; AUTO PRICES ROLLED BACK; RAIL STRIKE ENDS; ALLIES GIVE UP HAMHUNG; WU REJECTS TRUCE
TRUMAN SETS DRIVE Gives Wilson Sweeping Powers, Asks 'Mighty Production Effort' U.S. RALLIES TO CALL Congress Speeds Action-Stand of President Praised in Europe
By ANTHONY LEVIERO
Special to THE NEW YORK TIMES
RELATED HEADLINES
Strikers Return: Workers Heed Request of President — Freight Jam Is Melting: Mails Moving Again: Pay Dispute Settlement Is Expected Quickly in Washington
Recent Auto Rises Canceled by First Price-Freeze Edict: 'Ceiling Regulation No. 1' of Economic Stabilization Agency Holds Schedules to Dec. 1 Levels — Wage Study Set
OTHER HEADLINES
U.N. 'Trap' Alleged: Peiping Representative Says He Will Start Home Tuesday: Bids U.S. Quit Korea: 'Volunteers' to Withdraw if Formosa Also Is Yielded, He States
Paris and London Void Pacts in Arming Bonn, Soviet Says
Red China's Assets in U.S. Are Frozen: Washington Takes Unilateral Action — Tightens Ban on Shipping to Mainland
Beachhead Is Cut: U.N. Troops Forced Back to Narrowed Area as Foe Perils Lines: Navy Shells Reds: MacArthur Aides Report Chinese Build-Up for Attack in West
Nyack Area Fears the Thruway Means Razing of 250 Buildings
U.S. Urges Defense Parley By All American Republics
Disaster Services Put on Alert Here: Wallander Orders Agencies to Be in Condition of Readiness on 24-Hour-a-Day Basis
Hanley to Get $16,000 State Job; Dewey Makes Good His Promise
Washington, Dec. 16—President Truman proclaimed a state of emergency this morning and delegated many of his own war powers to Charles E. Wilson, the new Mobilization Director. Soon afterward the defense program moved into higher gear.
Today was a day of action in the White House, in Congress and elsewhere in the Government as officials moved to implement the President's declaration to the nation and the world last night that the United States would meet the challenge of communism.
The Economic Stabilization Agency canceled the price increases made by Ford, General Motors and Chrysler in the last few days, and this was merely the harbinger of many new controls that eventually will encompass the entire economy.
Industry evinced its readiness to accept any war production goals, striking railroad men returned to work, and the general response from the public indicated an acceptance of the austerity program suggested by the President.
Proclamation Is Signed
Mr. Truman had pleaded for unity, like past Presidents coping with crises, and as in 1917 and 1941 the country was rallying with vigor.
In the free countries of Western Europe Mr. Truman was applauded for his no- appeasement speech in which he pledged to create an "arsenal of freedom" to strengthen all free countries. From Russia, which the President blamed directly for the postwar troubles of the world, came a typical blast that this country was warmongering.
Mr. Truman took two actions this morning to start a drastic increase of the mobilization program. He signed the proclamation of emergency, which unleashed scores of additional executive powers, and issued an executive order granting virtually blanket authority to Mr. Wilson to carry out all aspects of war production and economic control he deemed necessary. This authority received by Mr. Wilson will be subject in the Executive Branch of the Government only to the veto of President Truman.
Threat to Freedoms Cited
In his proclamation President Truman declared that conquest of the world was the objective of "Communist imperialism." He said this now constituted a threat to the freedoms guaranteed by the Bill of Rights, to the free enterprise system and to other rights, like collective bargaining, that free people had chosen for themselves.
These were the elements of a "full and rich life" that could be lost by the triumph of the Communist way of life, Mr. Truman said, calling for "a mighty production effort" for defense.
Mr. Truman called for sacrifices, for cooperation by state and local officials, for loyalty to the principles on which the nation was founded, and faith in our friends and allies. He expressed his confidence that the people would not be found wanting in courage and determination.
The President signed the proclamation in his Oval Room office in the Executive Offices of the White House at 10:20 A.M. Only a few members of his staff and photographers were present. His manner was brisk.
He would not pose for "one more" for the "One More Club," as he calls the photographers. They had to catch him in the act of really signing or lose the picture. Usually he will pose over and over again until each photographer gets a proper "shot."
That quickening of a mood was felt generally in the capital. The Senate Armed Services Committee approved a national civil defense program, the Senate Finance Committee met in extraordinary session to work on the excess profits bill and the Economic Stabilization Agency clamped a freeze on automobile prices, the first of many promised controls.
Having taken the necessary legal steps to speed mobilization, Mr. Truman, tired from two weeks of unusually heavy work, but apparently confident and resolute, went aboard the official yacht Williamsburg for an overnight rest. He took along a few friends and will return tomorrow afternoon.
Last week he had conferred daily with Prime Minister Clement Attlee of Great Britain on the Korean war and the larger world crisis. This week he had been in almost continuous session with members of Congress and Administration leaders, charting the course he disclosed in his speech last night.
The executive order spelling out Mr. Wilson's powers and responsibilities appeared to leave out nothing that the industrialist could desire to tackle his job in an untrammeled way. It had been predicted he would get powers exceeding those of James F. Byrnes when Mr. Byrnes was the top mobilizer of World War II, and the document bore this out.
"The director," stated the order, "shall on behalf of the President direct, control, and coordinate all mobilization activities of the executive branch of the Government, including but not limited to production, procurement, manpower, stabilization, and transport activities."
The phrase, "including but not limited to," left open the possibility that other areas of defense activity would be added. The next paragraph, numbered 3, subordinated William H. Harrison, Director of the National Production Authority, and Alan Valentine, Director of the Economic Stabilization Agency, "to the direction and control" of Mr. Wilson.
The fourth paragraph specified that the Director of the Office of Defense Mobilization should report to the President periodically, and established Mr. Wilson's authority over Cabinet members and other heads of Federal agencies where mobilization projects are concerned. Under the original concept of a partial mobilization, geared to what was then believed to be a comparatively small war in Korea, most of the control agencies were dispersed in the Federal departments. For instance, the National Production Administration was placed in the Commerce Department.
Many Powers Are Revived
This fourth paragraph gives Mr. Wilson ascendancy in the control of these dispersed agencies, and he is expected to consolidate them as he gets organized.
Completing the sweeping terms, Mr. Truman in the final paragraph stated that today's order should prevail over any prior executive orders or directives that prove to be inconsistent with it.
Mr. Wilson, who has resigned his $175,000-a-year position as president of the General Electric Company to take the $22,500 job of Director of Defense Mobilization, will have to be confirmed by the Senate before he can begin operating. There, was no doubt on Capitol Hill that he would be confirmed promptly.
The proclamation of emergency, apart from an important psychological effect it is expected to have on the approach of the average citizen to his part in the crisis, revived scores of powers which have been latent. Some of them had been rescinded by Congress in 1947, and some were enacted since then but could be given life only by the proclamation.
Most of them were nominal powers or pertained to particular facilities that had been built or leased by the Government, with the privilege of recapturing them in an emergency like the present. Some of the powers were important and extensive, however, like the broad ones authorizing recapture of the many airfields and plants built during World War II.
But Mr. Truman already had the most critical powers for mobilization, vested in him by the Production Act of 1950, and it was this which he invoked in designating Mr. Wilson as the person who will implement them.
For what it's worth, I would rather be killed by my enemy than controlled by my country.
BTDT:
I think your theoretical 1983 case is doomed to failure. Even if you get over the high liability hurdle, where are your damages? I admire your spunk, though.
Section 1983 is not just for money damages.
You can get injunctive relief.
Same for the Declaratory Judgment Act, 28 USC 2201.
That's not rhetoric. It's the law.
Do you really believe that the government can violate the constitution so long as it doesn't pay money damages?
I hope you don't consider me one of the complacent apathetics. I am active in, and concerned about, the interplay between the war on terror and civil liberties.
I just think it is better to address the Administration's arguments head-on rather than to run around screeching "police state, nazi, fascist ..."
I was involved with some aspects of the government's post-9/11 response. I can tell you that all of us -- everyone I talked to -- believed (and had good reason to believe) that 9/11 was just the initial salvo in a planned series of attacks. Again, 9/11 involved a complex web of actors, nearly all foreign, operating with at least the tacit approval of a foreign government. Every 2 a.m. phone call was taken very seriously. And I do believe (but cannot "prove" in a manner that will satisfy the Administration's staunchest critics) that one or more follow-on attacks were prevented in the days, weeks, and months following 9/11, and that these planned follow-on attacks were orchestrated by many of the same terrorist leaders.
In short, I believe that the Administration correctly characterized that time period as a time of war. And I believe that anyone who takes a serious look at that time period will agree with me. And I believe that many of the extraordinary actions of the Administration during that time period were both prudent and justifiable (legally and morally) as efforts to repel an ongoing attack from these enemy forces.
At some time -- I can't tell you exactly when, and that's the problem -- we all began to feel that we had a better handle on the problem. Attacks had been disrupted in the planning stages; terrorist cells had been broken up. And, of course, the war in Afghanistan had a profound effect on the terrorists' command and control structure. And at this point, perhaps the use of extraordinary wartime powers under the President's commander in chief authority became more difficult to justify. Four years after 9/11, I'd suggest that the use of the commander in chief powers to undertake certain activities (including surveillance without a warrant, FISA or otherwise, and detention of "enemy combatants" not encountered on the battlefields of Iraq and Afghanistan or sorrounding areas) is problematic.
But these issues require difficult balancing. No one is illuminated by strident comments on either side that ignore the real world situtation and the changes in it over the last 4 years. "First they monitor the terrorism financeers, next it will be NARAL" doesn't convince me, and I hope it doesn't convince anyone else. Similarly, "this is a war, any surveillance of people with ties to Saudi Arabia is perfectly fine, and no one should have to go to court to justify our conduct of the war" fails to convince me.
Reading the comments I can't help but feel that my position -- deferential to the Government in time of attack, but somewhat less so the farther we get from the actual attack -- is an extreme minority position.
I just can't understand why that's the case.
To argue the 4th Amendment, you must first understand it.
Kindly note the phrase: "unreasonable searches and seizures". This, of course, is the limiting concept of this Amendment. What does "the People" consider "unreasonable".
Like the FBI's "Carnivore", I am reasonablely sure that this NSA program searches the "ether" for "hits" on key phrases and words related to the "War on Terrorism" and foiling future "9/11's". The idea behind the 4th Amendment is more government seizure, than search. Also, to establish a "playing field" that protects the "accused" in "criminal" proceedings. Should this NSA program generate a "hit" that upon futher investigation becomes a "lead" into the thwarting a "terrorist attack", it is almost certain that the perps will not stand trial, so the question of their 4th Amendment protections are moot. If you view the War on Terror as "criminal investigation" instead of a "military exercise" than you might question the governments use of such tactics. However, the War on Terror is a war, and defeating the enemy and proventing the success of their terrorism takes precedence over "criminally prosecuting" them once they are apprehended.
Also, Governmental exemptions from the "Interception and disclosure of wire, oral, or electronic communications" Code are rather broad:
Finally, according to our Founders, the sole purpose for which "the People" institute governments is to "secure" their rights of "Life, Liberty, and the Pursuit of Happiness (Property)". It is "the People" who will judge if government, in providing this "security" through these "warrantless" communications intercepts, has crossed the line of "unreasonableness".
But this isn't a blank check for the kind of reportedly boundless surveillance used here. To comply with 2518(7) the government needs at least three things: (1) the approval of a high-ranking DOJ official or a State AG; (2) grounds to get an order, if there had been time (meaning probable cause); and (3) (This is a biggie) the wiretapping must be followed up with an application for an actual court order within 48 hours. No doubt, the Administration could have used this exception to wiretap any of the 9/11 hijackers mid-flight without breaking federal law.
There is a similar provision in the Pen Register/Trap and Trace Act allowing for the emergency collection of numbers dialed and received. See 18 USC 3125. I don't know enough about FISA to know if there is a parallel provision in it.
Congress considered the emergency situation and provided a process for complying with it. If what the NY Times reports is true (and part of me still hopes it is not), it is obvious that Bush's lawyers declined to use the emergency exception provisions at their disposal. Whether or not Article II gives the President the power to do so, I leave for other commenters...
Actually, as I understand it they are only monitoring international calls.
But as subsection (f) seems to make clear, if an officer is conducting electronic surveillance within the meaning of FISA, then following the FISA procedures is the "exclusive means" by which such surveillance can be conducted. Similarly, the safe harbor in subsection (e) applies only if such surveillance is conducted "as authorized" by FISA. And as noted above, FISA makes it a crime to conduct such surveillance except as authorized by statute.
So, as I understand it, the 2001 AUMF must be taken to have implicitly repealed or amended these provisions, because otherwise the NSA surveillance without FISA warrants would be unauthorized by statute, the NSA officers conducting the surveillance would be committing criminal acts, and the safe harbor provisions would not apply.
I'm not sure one can legitimately read the 2001 AUMF that way ... and indeed, that would be a pretty frightening concept. In other words, if the general language of the AUMF somehow repeals or amends these particular statutes as the President deems necessary, then does it also repeal or amend all other federal laws as the President deems necessary? That can't be right, and I think (or at least hope) that this proposition would be a hard sell to a court.
Cold Warrior,
As I have said in other contexts as well, I think the systematic problem is that Congress has not been playing a sufficiently active role in providing regulations for the "war on terror". In other words, if the existing legal framework is inappropriate for the changed circumstances, then we need to change the legal framework, and that is what Congress should have been doing.
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