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Coming Soon to a VC Near You:
A bunch of people have asked me for a post on whether the NSA warrantless surveillance program was legal. I'm working on a post now, and should have something up this afternoon. In the meantime, check out the latest on the story here and here.

  UPDATE: From the transcript of the President's press conference this morning:
QUESTION: . . . Why did you skip the basic safeguards of asking courts for permission for the intercepts?

BUSH: First of all, right after September the 11th, I knew we were fighting a different kind of war. And so I asked people in my administration to analyze how best for me and our government to do the job people expect us to do, which is to detect and prevent a possible attack. That's what the American people want.
  We looked at the possible scenarios. And the people responsible for helping us protect and defend came forth with the current program, because it enables us to move faster and quicker, and that's important. We've got to be fast on our feet, quick to detect and prevent.
  We use FISA still. You're referring to the FISA accord in your question. Of course we use FISAs.
  But FISAs is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect.
  And having suggested this idea, I then, obviously, went to the question, is it legal to do so? I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely.
  As I mentioned in my remarks, the legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress.

Nobody Special:
Of course it's illegal, just like of course the takings at issue in Kelo were unconstitutional.

Be prepared to deal with a lot of "everybody knows" statements from people. Hopefully, you'll work at neutering them in the post, rather than let it spin out of control in the comments.
12.19.2005 11:54am
sbw (mail) (www):
Hmmm. Former Attorney General John Ashcroft comes back to haunt us again. Wasn't he the one who wanted to trample on the Constitution to get at someone who torched an American flag?

He thought anything he wanted to do was legal.
12.19.2005 12:12pm
roy solomon (mail):
It seems to me based on Orin's previous descriptions of FISA as flexible enough to deal with all contingencies, including the need for prompt attention, that the president's answers are lacking in credibility.
12.19.2005 12:14pm
Robin Burkurk (mail) (www):
Well, this does address the issue discussed in the earlier thread. The Administration specifically is not citing FISA as the authority for the intercepts.

From an operational perspective Bush makes an interesting distinction: FISA for longer-term monitoring vs. what appear to be opportunistic intercepts based (if earlier descriptions still hold) on the immediate exploitation of other intel such as captured laptops, cell phone stored numbers etc. It's an *operational* distinction that makes sense.

Y'all will debate the legal distinctions / issues involved.
12.19.2005 12:15pm
M (mail):
I wonder what part of the constitution allows this. Maybe a new secret part? And the remarks about FISA are transparent nonsense. My god- that anyone believes a word from this man's mouth is shocking. That anyone believs that he has any idea what he's saying, other than "I wanted to, and I did it" is shocking.
12.19.2005 12:15pm
Medis:
Yep, the President's answer completely ignores the ability to conduct emergency surveillance under FISA. That can be done as long as the facts would allow for a FISA warrant, a judge is notified at the same time, and they get a FISA warrant within 72 hours.

So, as I noted elsewhere, avoiding FISA entirely, including the emergency procedure, only makes sense if they wanted to conduct surveillance when they could not get a FISA warrant no matter how much time they would have.
12.19.2005 12:19pm
Medis:
Robin,

The President's proposed scheme may make a great deal of sense, and may in fact be better than the FISA scheme. But that doesn't make it legal--for that he would need to go to Congress for an amendment to FISA.
12.19.2005 12:21pm
Tony (mail):
I strongly suspect that the whole reason for this "warrantless" program was that you can't get blanket warrants to computer-analyze everything. Which is probably exactly what the NSA does, to a certain level - the technology exists, it's not all that expensive, and it would grant the owner of the system huge amounts of power. It's almost unthinkable that such a thing would not be going on right now.
12.19.2005 12:22pm
A.S.:
"I wonder what part of the constitution allows this."

Article II.
12.19.2005 12:31pm
Anderson (mail) (www):
Actually, A.S., it's not Article 2, it's the new upgrade, Article 2.1, with the latest in technological transcendence of previous ill-thought-out limitations on executive power. Project manager, John Yoo.
12.19.2005 12:35pm
M (mail):
"I wonder what part of the constitution allows this."

'Article II.'

My god! Another surprise! Bush believes in a living constitution after all!
12.19.2005 12:37pm
AppSocRes (mail):
No one can now reasonably deny that many of the the Roosevelt administration's actions during WW II were unconstitutional. Few would suggest that it is constitutional for Bush to arrest and imprison a dissenting US Senator or order a naval bombardment of an anti-war riot; yet Lincoln did exactly these things during the Civil War. Actions taken in the national interest during a war -- and believe it or not we are engaged in a war -- are often justified by, at best, Pickwickian arguments. Otherwise, if the nation adheres to all the constitutional niceties there is a real possibility that both the nation and the Constitution, which is but one aspect of the nation, may cease to exist. But I forgot: Those were good wars and this one ...
12.19.2005 12:39pm
Robin Burkurk (mail) (www):
the remarks about FISA are transparent nonsense

The onus is on you, M, to back up that assertion. Flatly pushing it is less than convincing. And from an operational perspective you're simply wrong.

FISA was devised during the Cold War. Its procedures are intended to manage longer-term monitoring of spies within the country, and any who might cooperate with them. A "fast" turnaround on a FISA warrant takes several days. It was not intended and is not well suited to deal with sabateurs and uncovering/intervening in planned terror strikes that are close to operational activation.

Tony is close, but not quite dead on IMO re: a related issue that has arisen more than once since before 9/11. With digital communications, there is a potential disconnect between people and the means of communication. FISA is aimed at tracking PEOPLE, who used to be tethered for the most part to one or two phone numbers and a physical address. But the actionable information gathered overseas which apparently triggered these intercepts seem to be things like cell phone numbers and email or IP addresses, all of which are subject to being easily ditched / replaced. So apart from time urgency to avoid imminent attack, there is the problem of the short life-span during which, say, a captured cell phone number may be able to lead you to someone else in the terror network.

What this means is that the only effective way to intercept information is to mine large numbers of transactions for the phone/ip/etc. number and work back to the person involved, as well as to work forward from a known person through the various communications channels.

I believe this issue has come up more than once in the context of drafting/debating the Patriot Act. The reality is that digital communications have changed the nature of the surveillance challenge, quite apart from their nimble exploitation by quasi- or non-state-actor terror networks.

Should we change or extend the law? No doubt. But I rather doubt that would have happened in the time frame necessary to actually deal with potential threats. We already know that in addition to 9/11 there were other attacks planned, here and abroad, for execution in that time frame. I for one have zero confidence that Congress would or could have moved quickly to write law on this issue -- and the way in which the Patriot Act was drafted, passed and 2nd guessed ever since suggests my lack of confidence has some basis in reality.

Should we have that debate now? Probably - if Congress can rise above short-term partisan benefit and look to the well being of the country as a whole.
12.19.2005 12:40pm
Observer (mail):
The 4th Amendment prohibits "unreasonable" searches. Nowhere does it say that warrants are required for all searches, only that warrants require probable cause. The courts have interpreted this to mean that in most cases, it's unreasonable to search without a warrant but I'm not famililar with any cases considering facts like those here. The question here is whether the NSA's eavesdropping was reasonable or unreasonable. IMHO, it's not unreasonable during wartime to listen in on conversations between hostile foreign powers and their agents or contacts in the United States.
12.19.2005 12:43pm
Christopher M (mail):
"I wonder what part of the constitution allows this."

Article II.


Would that be the Article II that provides, in section 3, that the President "shall take care that the laws be faithfully executed"?

Happily, the same Article has something to say about what to do when the President intentionally orders his subordinates to violate the law:

Section 4. The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
12.19.2005 12:44pm
A.S.:
"My god! Another surprise! Bush believes in a living constitution after all!"

No. He believes in the same Constitution that has justified warrantless surveillance for foreign intelligence purposes for decades now.
12.19.2005 12:45pm
Monkberrymoon (mail):

Hmmm. Former Attorney General John Ashcroft comes back to haunt us again. Wasn't he the one who wanted to trample on the Constitution to get at someone who torched an American flag?


Um. What are you talking about? I don't remember hearing that Ashcroft wanted to arrest people for burning flags (esp considering that would be blatantly unconstitutional). Maybe you mean that he supported the flag burning amendment while he was a Senator. But that's not exactly shocking (I think the last count was something like 65 senators, and of course a bunch of citizens want such an amendment).
Don't get me wrong, I think such an idea is retarded. But I don't think that amending the constitution is the same thing as "trampling" on it.
12.19.2005 12:45pm
Defending the Indefensible:
It's going to be interesting seeing John Roberts presiding over the trial of his sponsor's impeachment.
12.19.2005 12:46pm
A.S.:
Would that be the Article II that provides, in section 3, that the President "shall take care that the laws be faithfully executed"?

The very same! However, you ignore the Supremecy Clause. Because the President's power to conduct warrantless surveillance for foreign intelligence purposes is based on the Constitution, a law passed by Congress cannot abrogate it.
12.19.2005 12:50pm
Steveo987 (mail):
Seeing how the "War on Terror" will never end, the argument that our current "wartime status" provides a valid excuse from constitutional requirements and principles is worthless.
12.19.2005 12:50pm
Michael Masinter (mail):
Robin Burkurk writes: A "fast" turnaround on a FISA warrant takes several days.

Reread the statute. FISA warrants can be had in a matter of hours; that's why FISA authorizes emergency wiretaps for up to 72 hours before obtaining a warrant.
12.19.2005 12:51pm
Wince and Nod (mail) (www):
Michael Masinter,

Reread reality. Just because a statute authorises fast trunaround does not make turnaround fast. Congress has to budget for enough people to make the turnaround fast, those people have to be hired, and so on. You can't legislate the tide, either.

Yours,
Wince
12.19.2005 12:57pm
Houston Lawyer:
I don't really have an opinion on whether the intelligence gathering that Bush authorized is permitted under the Constitution, but any Constitution flexible enough to have a right to abortion contained therein without express or implied wording is going to accomodate a lot of things. The real question is whether the Supreme Court, with Alito and Roberts on board, will want to step in and control surveillance activities related to national security concerns. At some point, like with regard to the McCain Amendment, it becomes a political issue between the President and Congress. Who has the most votes, those more concerned with security or those more concerned with privacy? Hard to say right now.
12.19.2005 1:02pm
Paul Virkler (mail):
Most likely we are data mining international communication. Most likely the reason investigation into Able Danger did not go anywhere. The President seems happy with results and see data mining as the way to fight this new type of war
12.19.2005 1:03pm
Bruce Wilder (www):
"the legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress"

Bush needs the authority to do whatever is necessary to protect America. Bush, alone, has the knowledge and judgement to know what is necessary. Surely, the same Constitution, which gives him the sacred responsibility to protect America, gives him the authority to do whatever he judges to be necessary to that object, because, after all, the Constitution is not a suicide pact.
12.19.2005 1:06pm
Paul Johnson (mail):
If we assume an intelligence purpose, and not a criminal-justice purpose, then in practical terms, what remedy is there? If there has been a policy decision not to prosecute anyone based on information gleaned from this surveillance, and to use the information to disrupt terror operations, then there is not much of a remedy. There will be § 1983 and Bivens actions, I suppose, but what are the damages?

Also, if there is truth to the need for speed, would the exigent-circumstances exception to the warrant requirement allow this program? On the other hand, telephone warrants are not uncommon, and why couldn't those be used in these cases?
12.19.2005 1:07pm
A. Nonymous (mail):
The Bush administration's FISA argument is probably going to shape up something like this:

I. 50 USC 1802 permits electronic surveillance authorization without court order provided the AG swears "the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title;"

II. 50 USC 1801 (a)(1), (2), &(3) says "(a) “Foreign power” means— (1) a foreign government or any component thereof, whether or not recognized by the United States; (2) a faction of a foreign nation or nations, not substantially composed of United States persons; (3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments; "

III. Read together President Bush, through the Attorneys General (Ashcroft and not Gonzalez), authorized electronic surveillance without a court order to acquire foreign intelligence information for periods of up to one year after the Attorneys General certified in writing under oath that the acquisition of the contents of communications transmitted by means of communications used exclusively between or among a foreign government or any component thereof, whether or not recognized by the United States; a faction of a foreign nation or nations, not substantially composed of United States persons and/or an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments.

IV. Al Qaeda was and is EITHER a foreign government or a component thereof, whether or not recognized by the United States OR a faction of a foreign nation or nations, not substantially composed of United States persons OR an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments.

The counter argument being trotted around is 50 USC 1801 (a)(4) which defines "foreign power" as "a group engaged in international terrorism or activities in preparation therefor". Under this Al Qaeda IS NOT an (a)(1-3) group but an (a)(4) group and therefore not covered under 1802's warrantless electronic surveillance.

One could argue, and I bet the Bush admin will, that Al Qaeda is BOTH an (a)(1-3) group (i.e. a group that is permissable to conduct survelliance against without a warrant) and an (a)(4) group, too.

I am not saying which side will win the legal (or political) argument, only that this is probably what is will boil down to.
12.19.2005 1:08pm
llamasex (mail) (www):
Legal, not legal, who knows? But is this justified? All the American people are told, trust us this is effective. When asked for successes, we are told he can't tell us but there are some. That isn't justification to me and the fact no one is demanding answers is scary.
12.19.2005 1:09pm
robe:
I agree with Tony's comment about computers processing everything, but am having some trouble then figuring out what Bush means with the following:


First, I want to make it clear to the people listening that this program is limited in nature to those that are known al Qaeda ties and/or affiliates.


If the program is limited in this way, I'm having trouble figuring out why it couldn't easily go through FISA. Recording everything and relying on the computer to identify the limited number of people doesn't really sound like "...limited to...known al Qaeda..." Or maybe it does to some. Certainly would help explain the problem with using FISA. I guess it would also make some sense with some of the things Bob Graham said over the weekend, which I believe included some statements about thinking it was just a technological change, and not a policy change.
12.19.2005 1:09pm
Alan Meese (mail):
A few points:

1. Isn't the President still Commander-in-Chief of the Armed Forces? (See Article II). Aren't we at war, a war authorized by Congress? If a German Sub is lurking off the North Carolina Coast, and a U.S. citizen with known ties to German Intelligence was sending a radio message to the sub, must the Navy have first asked a judge if it could "listen in?" Of course not. Why does it matter, then, that the enemy uses truck bombs and hijackings instead of submarines? Weren't the September 11 hijackers living in the United States when they struck?

2. It doesn't matter that one could, in some cases, obtain a FISA warrant. That's beside the point. If the President has the power to listen in on a resident or citizen treating with the enemy, Congress cannot take that power away by creating a separate process and purporting to criminalize the President's exercise of the power Article II gives him. Congress might as well try to take away the President's power to veto a bill by first making him get approval of his cabinet for such a veto. Or, Congress might as well tell the Supreme Court how to rule on a particular case, or revise that ruling ex post.

3. The President need not abide by laws that infringe on his authority or exceed the Constitution. That's not just John Yoo --- that's James Madison, George H. W. Bush, Ronald Reagan, James Wilson, Woodrow Wilson, Thomas Jefferson. See also Freytag v. CIR (Scalia, Kennedy, Souter, O'Connor) stating that President may refuse to enforce unconstitutional laws. In the same way, a court need not enforce laws that infringe its authority or exceed the Constitution. That's John Marshall and Alexander Hamilton.

4. Those who take the contrary position, i.e., that Congress can criminalize the valid exercise of the President's power as commander-in-chief, apparently think that Congress has limitless power and need not actually adhere to the Constitution. Now THAT"s frightening.

5. On the 4th Amendment question note that, historically, most searches and seizures have probably taken place WITHOUT warrants. For instance, police can arrest felons (a seizure), even if they could easily obtain a warrant first (maybe they have the house surrounded), without getting a warrant. They may then hold the felon for 48 hours before going before a magistrate. After arresting the felon they may search his person and effects "incident to arrest" with no probable cause whatsoever. Some searches and seizures take place even without probable cause. See, e.g., Terry v. Ohio and its progeny.

So, this is a slam dunk for the President, unless one believes that Congress can amend the Constitution by statute.
12.19.2005 1:11pm
A. Nonymous (mail):
Sorry, should read


III. Read together President Bush, through the Attorneys General (Ashcroft and now Gonzalez),
12.19.2005 1:12pm
Robin Burkurk (mail) (www):
Reread the statute. FISA warrants can be had in a matter of hours;

Talk to people who've actually done it. Their description is that a warrant that comes back in 3-4 days is an incredibly fast one.
12.19.2005 1:12pm
A.S.:
The Bush administration's FISA argument is probably going to shape up something like this

There isn't a "FISA argument". The Administration is not arguing that the program fits into any of the FISA exemptions (per today's NY Times). They are arguing that the program is legal regardless of FISA, based on the President's Article II powers.
12.19.2005 1:16pm
A. Nonymous (mail):
There isn't a "FISA argument".

Actually, they've been arguing in the alternative:

1) Bush has said he violated no statutes in general and FISA in particular; this is almost certaintly a reference to what I described

2) Even if that statute wasn't there or if their actiosn ran afoul of it (again, they claim it did not), there's the inherent Art. 2 powers.
12.19.2005 1:20pm
The Original TS (mail):
I strongly suspect that the whole reason for this "warrantless" program was that you can't get blanket warrants to computer-analyze everything.

Ding!

We have a winner!

Anyone remember Carnivore, the FBI's e-mail surveilance tool?

http://news.zdnet.com/2100-9595_22-522071.html

I'm going to make a prediction here. Padilla was identified by the government based on this NSA surveillance program. Y'all don't need me to work out the implications of that.
12.19.2005 1:20pm
Medis:
A.Nony,

Actually, the problem is 1802(a)(1)(B), which would require the AG to certify under oath that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." Which is probably why no one actually in the Administration is arguing that FISA authorized this program.

Robin,

If I understand correctly, you are arguing that the President only has to faithfully execute the laws as they should be, not as they actually are, whenever he thinks Congress will be unwilling to make the laws the way they ought to be.

Or am I missing some limiting principle?
12.19.2005 1:20pm
Bybee (mail):
The structure of the Constitution demonstrates that any power traditionally understood as pertaining to the executive -- which includes the conduct of warfare and the defense of the nation -- only expressly assigned in the Constitution to Congress, is vested in the President. Article II, Section 1 makes this clear by stating that the "executive Power shall be vested in a President of the United States of America." That sweeping grant vests in the President and unenumerated "executive power" and contrasts with the specific enumeration of the powers -- those "herein" -- granted to Congress in Article I.
12.19.2005 1:21pm
SP (mail):
Thank you, A Nonymous, for actually bringing the legal analysis into this thread. By "analysis" I don't mean raving lunatics discussing their post-impeachment party plans, which is what this thread was going to devolve into otherwise.
12.19.2005 1:22pm
Medis:
A.Nony,

Do you have support for that "FISA in particular" claim? Because I have seen them refer generically to "statutes", and when pressed they have referred to the 2001 AUMF, but I have yet to see someone in the Administration claim that they actually had authorization per FISA itself.
12.19.2005 1:23pm
Medis:
Bybee,

Right, and the Constitution also explicitly gives Congress legislative power over various military matters, and generally provides Congress shall have the power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

So, in matters of war, as in all things, the President has executive power and the Congress has legislative power.
12.19.2005 1:27pm
Michael Masinter (mail):
Robin and Wince,

I have talked to people who regularly have sought and obtained FISA warrants; the turnaround time can be much shorter than 3-4 days when there is a need to act quickly. But why trade stories based on the people we each know; here's a better source -- the Department of Justice's answers to questions 2, especially 3, and 5 posed by the Senate Committee on the Judiciary: http://www.fas.org/irp/agency/doj/fisa/doj102005.pdf

FISA works; when the government needs to act quickly, FISA permits it to act quickly, and it does.
12.19.2005 1:28pm
A.S.:
1) Bush has said he violated no statutes in general and FISA in particular; this is almost certaintly a reference to what I described

If anything, it would be a reference to the Supremecy Clause. The President can't violate a statute if the statute may not constitutionally restrict the President's conduct.
12.19.2005 1:28pm
Tim (mail):
Doesn't the President's authority derive here from the "sovereign power" he possesses as the head-of-state? I've heard this argued as justification for the "no suicide pact" claim, that the nation itself precedes the Constitution, and that every "ruler" or whatever (not a constitutional scholar, sorry) possesses these fuzzier powers to safeguard the realm from extraordinary threats.
12.19.2005 1:29pm
llamasex (mail) (www):
The President would like for us to have an open debate on the subject, but sadly
BUSH: Secondly, an open debate about law would say to the enemy, "Here's what we're going to do." And this is an enemy which adjusts


So please people in these comments, stop aiding the terrorists. I am sure they are reading and all this debate is just helping them attack us better. We are at war. Loose lips sink ships. Shut up and let Bush protect us, he knows what's best. Trust him.
12.19.2005 1:32pm
The Original TS (mail):
Aren't we at war, a war authorized by Congress?

No. We are not. There has been no formal declaration of war by Congress and only Congress can declare war. "War" has a precise constitutional meaning. "Using force" is not "war." "Mobilizing lots of resources to tackling a social problem" is not "war."

If we're going to make being "at war" an excuse for curtailing civil liberties, we damn well better go through the formalities.
12.19.2005 1:33pm
Greedy Clerk (mail):
The fact that anyone is even questioning our great hallowed leader's ability to conduct warrantless wiretaps of American citizens is shocking. Our great leader is wise and is trying to protect us in a time of war. He knows best. As President, our leader has authority to do anything he wants to save us from the scourge of terrorism --- had he not taken these brave, heroic acts, hundreds of thousands of people would be dead today. The Sears Tower would have fallen, the Brooklyn Bridge would have sunk, and Los Angeles would be nuclear wasteland. All praise to our leader.

Only elitists would question his authority under Article II. We must cleanse our universities of elitists who question oru leader. Viva the Bush Cultural Revolution. Also, I have just looked at the Afghanistan War Resolution and I believe that, in combination with the President's inherent authority as Commeander-in-Chief, override the 22nd Amendment and our leader will be re-elected to a third term in office to help save us from the Islamo-fascists. Anyone who questions the legality of such a move hates America, and should be sent away and declared an enemy combatant -- their threat to national security unfortunately precludes our leader from chargin such people in open court. This is war, after all.
12.19.2005 1:33pm
A. Nonymous (mail):
Medis sayeth: Do you have support for that "FISA in particular" claim?

During today's presser, Bush said:


THE PRESIDENT: We will, under current law, if we have to. We will monitor those calls. And that's why there is a FISA law. We will apply for the right to do so. And there's a difference -- let me finish -- there is a difference between detecting so we can prevent, and monitoring. And it's important to know the distinction between the two.


Plus Rice yesterday on Fox News Sunday


RICE: Well, in fact, the administration is using FISA and using it very actively to try to deal with the threats, but the president also has additional authorities, and he's drawing on those to deal with this different kind of war. I'm not a lawyer, Chris, but the president...

RICE: Well, the intelligence professionals here do use FISA, and we've used FISA, but FISA is a 1978 act. It does relate to a time when we were principally concerned about the activities of people working on behalf of governments or the activities of governments.


So, as I noted, it is an argument in alternative, or at least as I take it. I can see how others might disagree and it is convoluted to say the least.
12.19.2005 1:35pm
AppSocRes (mail):
Thank you, A.Nonymous: I appreciate your effort in laying out a reasonable legal basis for the Administration's actions. I wonder if those supporting the other side can do as well. This is meant as a thank you and a well-intentioned request for legal clarity. We've had more than enough vague references to enumerated powers in the Consitution.
12.19.2005 1:41pm
A. Nonymous (mail):
As for the FISA process being extra special fast as some have suggested, the September 11 Commission seemed less than thrilled as did field agents:


Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act (or FISA), the application process nonetheless continues to be long and slow. Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance. The Department of Justice and FBI are attempting to address bottlenecks in the process.
12.19.2005 1:41pm
Medis:
A.Nony,

I don't think that is particularly unclear. We know they are still following FISA for some surveillance. The only question is whether they are following FISA for all their surveillance. And I don't see any claim to that effect in what you quoted.
12.19.2005 1:42pm
A. Nonymous (mail):
AppSocRes sayeth: I appreciate your effort in laying out a reasonable legal basis for the Administration's actions.

Please note I don't know if it is reasonable. It might be barking insane and anything but reasonable. It might be giant load of BS and just impeachment-bait. I don't know, and I am eager to the Nth degree to see Orin's take.

I've got as many questions as ya'll do, but I thought given what I saw posted earlier, which was vague bits of NY Times articles, best to refer back to the law itself and see if it jibes or does not (again, I don't know that it does or does not).
12.19.2005 1:45pm
Medis:
A.Nony,

On the subject of speed--FISA does give them 72 hours in emergency situations before they need to get a warrant. If they are finding that it is taking a lot of resources to comply with that schedule, then they could take their case to Congress for a modification of FISA.
12.19.2005 1:46pm
Robin Burkurk (mail) (www):
If the program is limited in this way, I'm having trouble figuring out why it couldn't easily go through FISA. Recording everything and relying on the computer to identify the limited number of people doesn't really sound like "...limited to...known al Qaeda..." Or maybe it does to some. Certainly would help explain the problem with using FISA

First, let me say that I have not direct personal knowledge of the sigint or data analysis capabilities that presumably were applied in these cases. That said, I do have some professional knowledge of technologies likely to have been used on the data anlysis side.

There are two rather different ways to apply computers to a mass of electronic data. The first is data mining, which looks for patterns in semi- or unstructured data. Data mining is an application of some branches of artificial intelligence and the associations (patterns of information) are inferred statistically. If you sifted through news reports, email contents, diaries, captured laptop files etc. etc. and began to discover statistical correlations between a certain phrase and an operational al-Qaeda cell, that would be data mining at work.

The second approach is an application of information retrieval or pattern matching. In this case you have some important starting piece of information and you seek to find transactions (specific items of information such as the date, time, location and phone number of a cell phone call as relayed via a cell tower) which match that information. Note that in this case you are not exploring to find any possible linkages that might emerge - you have a starting place of known interest and are identifying related data.

Although it might be processing intensive, there is a very straight-forward trail to be followed if you start by tracking calls made to and from a cell number obtained in a phone captured in Afghanistan, for instance, and then match those contacted numbers against lists you have found in other ways.

If you do that for several numbers you uncovered via intel or capture overseas and then you look for overlaps, patterns may well become visible quickly. Note that up to this point there is no need to listen to conversations to establish the likelihood that a recipient is of high interest.

Is this what information was used and how it was analyzed? I don't know, but these are the techniques known to the technical community.

What makes the old FISA approach problematic today is that wiretap warrants aimed at a phone number -- an office or home land line -- are moot in a world in which anyone can go buy several cell phones and/or phone charge cards using cash. That makes the connection between a person and a number potentially ephemeral, meaning it must be acted on immediately or may lose its value. After all, if a cell is busted and a laptop captured, it doesn't take long for anyone who escaped to call other members around the world to let them know that their phone, email and other contact info is possibly compromised. These two dimensions - the time factor and the new disconnect between people of interest and the contact tracking info such as phone numbers we can uncover about them - have changed the intel challenge significantly since FISA was written in the 1970s.

Add in the threat of mass casualties from the radiological, biological or chemical attacks which al-Qaeda leadership avows they intend to carry out and this challenge takes on new urgency.

One last comment. On another site yesterday I read a comment to the effect that NSA has "incomprehensible" capabilities. I would like to invite anyone who thinks that this stuff is easy to do, or can be applied easily to all and sundry, to think seriously about doing some grad work in the field. Either you'll learn quickly that it's not exactly an easy task or you'll improve our capabilities - a good thing in either case.
12.19.2005 1:48pm
Medis:
Robin,

In the USA-PATRIOT Act, FISA was amended to allow roving wiretaps.
12.19.2005 1:54pm
Alan Meese (mail):
The Original T S claims that Congress must declare war for there to be a war. Not true. Congress need not declare war for there to be "War" in the Constitutional sense, or for the President to exercise his powers as Commander in chief. There are Supreme Court decisions recognizing the existence of War without a declaration by Congress. When Pearl Harbor was bombed, we were "at war," even though Congress had not declared it. The troops there did not have to wait for Congress to Act before they could fire back.

Here Congress has authorized the President to use force against those who attacked us on September 11. The resulting invasion of Afghanistan, for instance, was certainly "war" under international and domestic law.
12.19.2005 1:56pm
Bob Bobstein (mail):
Byron York quotes a source: "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court."

To be taken with a grain of salt-- York is likely to have sources who think the president is right, and say things to make him look good.

It's still unclear to me why, regardless of any inefficiencies in the administration of FISA, the president can choose to violate the law if he doesn't like it.
12.19.2005 1:57pm
Bob Bobstein (mail):
The resulting invasion of Afghanistan, for instance, was certainly "war" under international and domestic law.

A US invasion of Afghanistan does not automatically suspend the Constitution within the US.
12.19.2005 1:59pm
alf (mail):
Do the President's inherent powers as commander-in-chief really include the authority to spy on US citizens--even if they are "agents of a foreign power"--without a warrant? If so, what are the limits of that authority? Could the President authorize a wiretap of, say, Howard Dean just he because he has a feeling that Dean works for Al Qaeda? I wonder if the the 4th Amendment doesn't prevent such wiretaps without some kind of judicial process. As a policy matter, at least, I think it's better to have a process that can ensure that the President's actions are actually in the interest of national security and not just for the purpose of attacking political opponents or curtailing First Amendment rights. It seems that FISA served that role quite well.
12.19.2005 2:03pm
Medis:
Bob,

To put your point another way, can the President really order people to violate federal law whenever complying with federal law is, in his view, unduly "cumbersome"? And what, if anything, would limit this principle?
12.19.2005 2:03pm
No Tyrants (mail):
We don't suffer tyrants in this country. A tyrant is one who holds himself above the law, which is what Bush appears to be doing.
12.19.2005 2:08pm
A.S.:
To put your point another way, can the President really order people to violate federal law whenever complying with federal law is, in his view, unduly "cumbersome"?

This analysis is backwards. The President has the authority under Article II to authorize the surveillance. To the extent that federal law (FISA) criminalizes that power, it is unconstitutional. It's a straightforward application of the Supremecy Clause.

And what, if anything, would limit this principle?

The limit is the limit of his powers under Article II. He may not authorize anything that is beyond his Article II power and is prohibited by FISA.
12.19.2005 2:11pm
go vols (mail):
"Actions taken in the national interest during a war -- and believe it or not we are engaged in a war -- are often justified by, at best, Pickwickian arguments. Otherwise, if the nation adheres to all the constitutional niceties there is a real possibility that both the nation and the Constitution, which is but one aspect of the nation, may cease to exist."

Who's being hysterical now? "Cease to exist"? I don't know what's worse--the notion that Al Qaeda is the functional equivalent of the Soviet Union, or the straight-faced argument that our Founding Fathers, many of whom resisted the very notion of a standing army, would have written Article II's "Executive Power" grant with a mind to making him a de facto monarch in the conduct of foreign affairs. The idea that "trust us" should serve as the basis of our attitude towards the executive branch contradicts every fundamental principle of liberal government, and yet it is repeatedly the canard we are offered by this administration.

At the end of the day, how is this extreme theory of presidential power under Article II different from that offered by Nixon, who (to paraphrase) famously said that "it's not illegal if the president does it"?
12.19.2005 2:13pm
Greedy Clerk (mail):
Bob Bobstein: "It's still unclear to me why, regardless of any inefficiencies in the administration of FISA, the president can choose to violate the law if he doesn't like it."

Mr. Bobstein, with all due respect, you do not understand that we are at war with people who want to kill us. Thus, the President cannot violate the law at all. Plus the Afghanistan war resolution in combination with the Presient's authority under Article II give the President the authority to override any "law" that would interfere with his ability to protect us from the evil Islamofascists, that after all want to kill us. Do Islamofascists need to comply with the "law" to kill us? No, of course not. Do Islamofascits need to get warrants before they kill us? No.

Moreover, what the President is doing is nothing compared to what Saddam, Hitler and other tyrants have done. Thus, you should be grateful that we have a President who is willing to protect us, I know I am.

As to Orin's analysis, I have already read the analysis of the real experts, those patriots at the PowerLine blog who have done a very thorough analysis and concluded that what the President did was legal and probably saved thousands of lives. The true criminals are the New York Times, the Washington Post and the rest of the liberal MSM, and people like Bob Bobstein who question our President's authority in a time of war. Shame on them. If it were up to them, and people like Senator Schumer, we would have no Brooklyn Bridge right now, and thousands would be dead.
12.19.2005 2:17pm
Robin Burkurk (mail) (www):
In the USA-PATRIOT Act, FISA was amended to allow roving wiretaps.

Yes - and it was a provision that was fought by some IIRC.

I was responding in particular to questions about the likely nature of the data collected and the analysis process applied. Phrases like "blanket warrants to computer analyze everything" and "recording everything" and "remember Carnivore" are less than precise.

Robin, If I understand correctly, you are arguing that the President only has to faithfully execute the laws as they should be, not as they actually are, whenever he thinks Congress will be unwilling to make the laws the way they ought to be. Or am I missing some limiting principle?

Actually, I'm not arguing that at all. I'm simply identifying the operational challenges I think the Administration faced in the weeks and months after 9/11.

It is in that context that they sought and received whatever legal counsel they got, resulting in the decision to "detect (without warrants) so we can prevent", based on ephemeral information gained overseas, in some specific cases. I understand Bush to be saying that where "monitoring" sufficed, the FISA structures in place to manage monitoring were followed.

Now, whether or not you agree with the legal arguments made re: authority to do the former, we should at least try to parse the assertions coming out of the the White House on this. They are distinguishing a set of actions which were limited both in number and scope and which were intended to prevent suspected planned attacks, from wider-scoped, longer-term monitoring which is the traditional purview of FISA.

Will it hold up in SCOTUS if challenged? I haven't a clue. I'm not a legal scholar, as I've said before. But my suspicion is that the onus will be on those who disapprove to find a basis for declaring the actions in question illegal.
12.19.2005 2:20pm
Greedy Clerk (mail):
Yes, AS. Bravo! The Supremacy Clause is the key -- that's the ticket.

Now, some liberals and terrorist-coddlers like Bobstein and Senator Schumer will try to tell you that the Supremacy Clause merely deals with making valid federal law supreme over contrary state law. But those of us who know about the real constitution and understand the threat we are facing, we understand that the Supremacy Clause really says that a President has the power to be Supreme over other branches of government and to override any "laws" when we are at war with Islamofascists.
12.19.2005 2:21pm
Alan Meese (mail):
To No Tyrants:

By your logic, the President would be a "tyrant" if he vetoed a bill after Congress passed a law making it a crime for him to do so. But, of course, Congress has no power to pass such a law, which would infringe one of the President's powers under the Constitution. The President cannot "violate" a law that is null and void from the beginning. In the same way, I guess, John Marshall was a tyrant in Marbury because he refused to follow a law that Congress had passed.

Actually, those who would criminalize the Constitutional exercise of the President's powers are the ones who are trying to act in a lawless fashion, and thus as tyrants.
12.19.2005 2:23pm
Greedy Clerk (mail):
Yes, Robin Burkuk. You hit the nail on the head. Those liberals fought hard in 2001 against the Patriot Act, and probably cost us many lives, along with emboldening the enemy and hurting the morale of our troops in the field. If I recall correctly, one Democrat Senator voted against the Patriot Act in 2001. Those liberals really hate this country.
12.19.2005 2:24pm
Nicole Black (mail) (www):
Greedy Clerk--are you Ann Coulter in wolf's clothing? You sure sound like it. The use of "Islamofascists" was the dead giveaway;)
12.19.2005 2:26pm
David C. (www):
Hey GoVols -

I always thought it was legal until a court said it was not?
12.19.2005 2:26pm
Steveo987 (mail):
Yeah, what does the Supremacy Clause have to do with anything? That's in Article IV, not Art. II, if I recall correctly.
12.19.2005 2:28pm
Christopher M (mail):
In United States v. U.S. District Court, 407 U.S. 297 (1972), the Supreme Court expressly held that the President does not have inherent authority under Article II to authorize warrantless surveillance even when he deems such surveillance "necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." But the Court expressly declined to decide whether the President does have such authority where foreign powers are concerned:
...We have not addressed, and express no opinion [407 U.S. 297, 322] as to, the issues which may be involved with respect to activities of foreign powers or their agents.


But I don't see a plausible basis for distinction. Surely the President has as much of a constitutional obligation to protect the nation against domestic threats as to protect it from foreign threats. So if that obligation doesn't give him carte blanche over surveillance for domestic purposes, why would it give him carte blanche over surveillance for foreign-affairs purposes? (N.B., the supposed distinction here is not between spying on U.S. citizens and on foreigners -- it's a question of the purpose of the surveillance, not the identity of its target, per se.)
12.19.2005 2:28pm
Alan Meese (mail):
Greedy Clerk:

I wonder why you think Congress has the power to be supreme over the President, even when the Constitution expressly empowers the President to act as Commander-in-Chief? What portion of the Constitution provides for Legislative Supremacy?
12.19.2005 2:28pm
Christopher M (mail):
Cf. Justice Douglas's concurrence in United States v. U.S. District Court:
Here, federal agents wish to rummage for months on end through every conversation, no matter how intimate or personal, carried over selected telephone lines, simply to seize those few utterances which may add to their sense of the pulse of a domestic underground....Such gross invasions of privacy epitomize the very evil to which the Warrant Clause was directed.
12.19.2005 2:33pm
Greedy Clerk (mail):
Alan Meese, I agree with you. The Constitution clearly gives the President the power to be Commander-in-Chief. Thus, it matters not at all that a duly passed law of Congress that was signed by the President purports to prevent a President from fighting the Islamofascists. I believe in Executive Supremacy, i.e., the Executive is Supreme over "laws" of COngress that were passed by both houses and signed by the President, because he is Commander-in-Chief under Article II, and pursuant to the Supremacy Clause, he is Supreme.
12.19.2005 2:35pm
statfan (mail):
Which clause of the constitution says it's not a suicide pact? As a textualist, I think it is precisely a suicide pact.
12.19.2005 2:36pm
Greedy Clerk (mail):
In United States v. U.S. District Court, 407 U.S. 297 (1972), the Supreme Court expressly held that the President does not have inherent authority under Article II to authorize warrantless surveillance even when he deems such surveillance "necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government."

Please, that was before the war against the Islamofascists. Enough with your legalifying elitist talk. How many times must it be said? I will say it slowly so you can understand: We. Are. At. War. 9/11. The President pursuant to the Supremacy Clause and Article II Commander-in-Chief of all laws Clause gets to decide who to surveil. 9/11.

12.19.2005 2:36pm
Cold Warrior:
In case anyone's interested ...

... I weighed in at some length on Orin's last post on this issue. My comments were, in general, supportive of the President's argument that his commander-in-chief powers provide consitutional authority for such surveillance independent of the FISA statute.

Of course, I supported the President based on the understanding that the surveillance occurred "in time of war."

As I've read more about the issue, I understand that we are dealing with surveillance quite far removed from 9/11-- in some cases, perhaps continuing into 2003, 2004, or even the present day.

If that is the case, I believe the continued "outside of FISA" surveillance is at least presumptively illegal, unless the Administration has a much better explanation than what I've heard up to now.
12.19.2005 2:37pm
Argonaut (mail):
"The structure of the Constitution demonstrates that any power traditionally understood as pertaining to the executive -- which includes the conduct of warfare and the defense of the nation -- only expressly assigned in the Constitution to Congress, is vested in the President."

The "traditional powers of the executive", when the Constitution was written, included summary arrest and imprisonment without legal recourse, censorship of the press and the arts, enforcement of state religion, and seizure of lands and property on a whim. The Bill of Rights exists specifically to limit these traditional powers.

The intent of FISA is to make clear how Fourth Amendment restrictions on the Executive Branch's powers apply to electronic communications and surveillance.

Even if the Executive Branch feels that FISA is unconstitutional as people here have argued, it does not have the right to simply ignore it. It must argue its case before the Supreme Court', whose job is to decide these things. If the Executive Branch feels that FISA is constitutionally allowed but too limiting in "this modern age", it must ask Congress to amend the FISA statute. The Executive Branch never has the right to ignore a law: it can only appeal to the other branches to change it or strike it down. That is the fundamental check on Executive power.
12.19.2005 2:39pm
Greedy Clerk (mail):
Which clause of the constitution says it's not a suicide pact? As a textualist, I think it is precisely a suicide pact.

Textualism is only good for judges. The President should interpret the Constitution as a living document, which must change and be read (or not read) in light of current conditions. As Commander-in-Chief of all laws, and as Supreme President under the Supremacy Clause, he must use a more "pragmatic" approach to interpreting the constitution. After 9/11, we cannot afford to have a "textualist" president. But textualist judges are a necessity; otherwise, activist judges will destroy Christmas. 9/11.

12.19.2005 2:40pm
Robin Burkurk (mail) (www):
I have got to go attend to other responsibilities, but it might be useful to include here the comments of the Attorney General today:

Our position is that the authorization to use military force which was passed by the Congress shortly after Sept. 11 constitutes that authority," said Gonzales. He called the monitoring "probably the most classified program that exists in the United States government."

At a White House briefing and in a round of television appearances, Gonzales provided a more detailed legal rationale for Bush's decision authorizing the National Security Agency to eavesdrop on international phone calls and e-mails of people within the United States without seeking warrants from courts. He said Bush's authorization requires that at least one of the parties be outside the country and linked to al-Qaida or an affiliated organization.

But he refused to say how many Americans had been targeted and insisted the eavesdropping was "very limited, targeted" electronic surveillance. "This is not a situation of domestic spying," he said.

Gonzales defended Bush's decision not to seek warrants from the secretive Federal Intelligence Surveillance Court, saying that "we don't have the speed and the agility that we need in all circumstances to deal with this new kind of enemy."

Gen. Michael Hayden, deputy national intelligence director who was head of the NSA when the program began in October 2001, said, "I can say unequivocally we have got information through this program that would not otherwise have been available."

In offering only a glimpse into the program, Hayden said the monitoring would take place for a shorter period of time and be less intrusive than what is normally authorized by the secret surveillance court. Yet he acknowledged that the program is more aggressive than other government monitoring.
12.19.2005 2:44pm
Christopher M (mail):
Alan Meese, A.S., et al.--

It's not really that complicated. Congress says what the rules are -- we call that "legislation." The President does what those rules tell him to do, and makes sure that everyone else does as well -- we call that "executive authority," also known as "tak[ing] care that the laws be faithfully executed." When disputes arise about what the laws mean or how they apply to particular facts, the courts decide them -- that's the "judiciary." There are some messy bits involving "administrative agencies" and "rulemaking" and whatnot, but nothing much relevant here.

I recall this system being explained to me in about fourth grade. It wasn't until law school that I learned of the alternate theory under which all three powers vest in the President whenever we are at "war"; which, we are told, will likely be forever. I continue to prefer the civics I learned in elementary school.
12.19.2005 2:47pm
Bob Bobstein (mail):
Greedy Clerk-- I think it looks better as "Islam-o-fascists." Other than that, your arguments are sound.
12.19.2005 2:49pm
procrastinating clerk (mail):
Why isn't this just Youngtown? I mean that as an honest question.

"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. . . . Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Into which of these classifications does this executive seizure of the steel industry fit? . . . Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure."

Youngstown at 637-38.
12.19.2005 2:51pm
Alan Meese (mail):
Those who think the President must simply enforce unconstitutional statutes because Congress passed them might want to read what Thomas Jefferson, James Wilson, and James Madison had to say. Each says that the President must interpret the Constitution independently and may refuse to enforce a law he believes to be unconstitutional.

In other words, A.S. has some powerful allies.

Jefferson:

Nothing in the Constitution has given [the judiciary] a right to decide for the executive, any more than the executive has a right to decide for them. Both magistracies are equally independent in the sphere of action assigned to them. The judges, believing the [law ]constitutional, had a right to pass a sentence of fine and imprisonment, because that power was placed in their hands by the Constitution. That instrument meant its coordinate branches should be checks on each other. But the opinion which give the judges the right to decide what laws are constitutional, and what are not, not only for themselves in their own sphere of action, but also for the legislative and the executive, in their spheres, would make the judiciary a despotic branch."


Wilson:

"For it is possible that the legislature [may pass an act repugnant to the Constitution]. But when it comes to be discussed before the judges, when they consider its principles, and find it to be incompatible with the superior powers of the Constitution, it is their duty to pronounce it void. . . . IN THE SAME MANNER THE PRESIDENT OF THE UNITED STATES COULD SHIELD HIMSELF AND REFUSE TO CARRY INTO EFFECT AN ACT THAT VIOLATES THE CONSTITUTION."



Madison:

"Each [department] must be guided in the exercise of its functions by the text of the Constitution according to his own interpretation of it; and that, consequently, in the event of irreconcilable interpretations, the prevalence of one or the other department must depend upon the nature of the case, as receiving its final decision from one or the other, and passing from that decision its into effect, without involving the functions of another."

Here, the nature of the case probably means that the President has the last word, unless he arrests a terrorist based on information gleaned from this program. Of course, mere violation of a statute would not itself require exclusion of the evidence.
12.19.2005 2:54pm
J..:
The government previously outlined its arguments in 2002: link.
12.19.2005 2:55pm
J..:
Woops . . . I meant: really, here.
12.19.2005 2:56pm
Wince and Nod (mail) (www):
Nicole Black,

Based on past comments, Greedy Clerk is being exceedingly sarcastic.

Yours,
Wince
12.19.2005 2:59pm
Christopher M (mail):
Greedy Clerk--

I must concede. I had overlooked the key point -- which I believe has so far gone unremarked -- that the clear structure of Article II makes questions concerning celebrations, decorations, and salutations on major religious holidays the exclusive purview of the President, and clearly justifies the NSA's interception of communications by soi-disant liberals to determine whether or not they are using the phrase "Happy Holidays," which (I do not say certainly, but quite possibly) constitutes Treason. We are at War -- a War on Christmas -- and inter arma silent leges.
12.19.2005 3:00pm
Alan Meese (mail):
Dear Christopher M:

Your 4th Grade Teacher apparently disagrees with James Madison, Thomas Jefferson, Ronald Reagan, Woodrow Wilson, George Herbert Walker Bush, James Wilson, Abraham Linclon, and Andrew Jackson, all of whom (and probably more) at one time or the other took the position that the President need not enforce laws he thinks unconstitutional, without asking the Judiciary for permission.

The take care clause does not help your argument. It actually cuts against it. The "laws" that the President must take care to execute include the Constitution itself, which, according to the Supremacy Clause of the Constitution, is the "Supreme Law of the Land," i.e., trumps statutes. The President does not take an oath to Congress. He takes an oath to support and defend the Constitution, not just the laws passed by Congress. When the latter interfere with the former, the former prevails.

Do you think that Madison did not understand the Constitution? Do you think that John Marshall misunderstood the Supremacy Clause, when he said that it means that the Constitution trumps ordinary legislation?
12.19.2005 3:04pm
A.S.:
Yes, procrastinating clerk, you are exactly right - it is Youngstown. But is this really a Category 3 case? I think the Administration, in citing the Authorization of the Use of Force, is arguing it is a Category 1 case ("When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.")

Even if it is Category 3, "he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter." Assuming he case Constitutional power, what Constitutional power of Congress is there that subtracts from the President's power, and how much is that subtraction?
12.19.2005 3:04pm
The Original TS (mail):
The Original T S claims that Congress must declare war for there to be a war. Not true. Congress need not declare war for there to be "War" in the Constitutional sense, or for the President to exercise his powers as Commander in chief. There are Supreme Court decisions recognizing the existence of War without a declaration by Congress. When Pearl Harbor was bombed, we were "at war," even though Congress had not declared it. The troops there did not have to wait for Congress to Act before they could fire back.

There is entirely too much hand-waving and sloganeering when it comes to the "war" on terrorism. I've been regularly appalled at the complete lack of actual legal analysis of some of these most basic questions.

You're eliding two entirely different things. Once again, I will repeat. The ONLY way for a war to be constitutionally declared is for Congress to declare it. Period. There is no possible debate on this point.

It is, of course, possible for the President as commander-in-chief to use force absent a declaration of war. This has, in fact, been the norm rather than the exception.

But you, and others, are suggesting something very different. You are suggesting that being at "war" authorizes the President to partially suspend the Constitution. Assuming, arguendo, that is true, it cannot mean that the President is authorized to suspend the Constitution whenever he is authorized to use force.

So what we need to do is separate the President's power to use force and his "power" to suspend the Constitution. If you're willing to say that the President can suspend the Constitution whenever he thinks we're at "war," then Constitutional protections exist only at the whim of the executive. George Bush may be an angel among us but I can pretty much guarantee you that some president down the line won't be. We'd have to be mad to trust any individual with powers like that.

Fortunately, we don't have to. The Constitution speaks quite clearly on how an actual war (as opposed to a "state" of war or a "police action" or a "peace-keeping" mission or whatever) get declared. So if we want to grant the President the authority to suspend inconvenient bits of the Constitution, then we need to have a national debate on it and Congress needs to declare war with full knowledge of the implications of what it is they're doing.


The resulting invasion of Afghanistan, for instance, was certainly "war" under international and domestic law.

Invasion of Afghanistan? What invasion of Afghanistan? If you look carefully, you'll see that there was no "invasion of Afghansistan." Rather, the U.S. merely provided support to the legitimate government in a civil war. The U.S. was not, therefore, ever "at war" with Afghanistan nor could it have been.

Indeed, it was most definitely not a "war" under international law as international law only applies between nation states. This was a purely domestic matter as the legitimate and legally recognized goverment of Afghanistan recieved a bit of friendly help from the U.S. to put down a domestic insurrection.
12.19.2005 3:11pm
Bryan DB:
Alan Meese,
Your citation to big names is admirable, but the text of the Constitution is controlling.
12.19.2005 3:12pm
Alan Meese (mail):
Bryan DB:

I don't get your post, really. What part of the text contraves what Madison and others said?
12.19.2005 3:15pm
Beetle Bailey (mail):
Many on this thread are missing the point.

We've been invaded. Not only can Congress now suspend habeas corpus under Art I, Sec 9, Cl. 2.

But the president can -- and must -- act to save us under his Art II CIC authority to catch and detain forever all these invaders, these evildoers, here in the US.

These invaders are skillfully parading around as American citizens, born and reared here, and as legally-admitted immigrants and aliens.

They've brought the war onto our homeland. So with America being the battlefield, how can Congress lawfully interfere with POTUS's execution of his CIC powers in commanding his Army and Navy.

(For all the Art II buffs out there, does it matter that the NSA extends beyond the armed forces in assessing whether a president's "inherent" power as CIC authorizes NSA domestic spying?)
12.19.2005 3:18pm
Beetle Bailey (mail):
Many on this thread are missing the point.

We've been invaded. Not only can Congress now suspend habeas corpus under Art I, Sec 9, Cl. 2.

But the president can — and must — act to save us under his Art II CIC authority to catch and detain forever all these invaders, these evildoers, here in the US.

These invaders are skillfully parading around as American citizens, born and reared here, and as legally-admitted immigrants and aliens.

They've brought the war onto our homeland. So with America being the battlefield, how can Congress lawfully interfere with POTUS's execution of his CIC powers in commanding his Army and Navy.

(For all the Art II buffs out there, does it matter that the NSA extends beyond the armed forces in assessing whether a president's "inherent" power as CIC authorizes NSA domestic spying?)
12.19.2005 3:18pm
richtrini:
"Oh WAR on terrorism, WAR terrorism, wherefore art thou WAR on terrorism?"

I am so confused or maybe naive. I thought Congress was the only one who can declare a WAR? Yeah I know, as commander-in-chief the president can use our armed forces in just about any way he wants (until Congress cuts his money chest). But I keep hearing we are at WAR. Then I hear that the people we have captured in this WAR, aren’t really prisoner’s of WAR because this isn’t a WAR with a country, just fundamentalist ideas of people who have no country. Can we be at WAR with an idea? Maybe we really aren’t in a real WAR because Congress hasn’t declared it and we don’t treat the prisoners of this WAR as prisoners of WAR. But we must be at WAR because the President says we are and Britney Spears, the great spokeswoman of our time, says we have to "trust our president in every decision he makes and should just support that." So that is what I decided to do along withe the rest of America.

But last night, when I was trying to get my evidence and politics education from CSI and West Wing like the rest of America, it was interrupted by the President who was talking about this WAR again that I thought really wasn’t a WAR but decided to support anyway because Britney told me to. Now I am confused again. Did Congress declare a WAR? Oh yeah, I got complacent (didn't they tell us not to do that) and forgot that the President was authorized to use force in Afghanistan, to get rid of a brutal dictator, and to conduct electronic surveillance on potential terrorists in America who contact people outside (and inside?) America. Wait a minute, that last one is a new one. Hmm, let me think about that for a minute. Yeah, that last one is OK. Because we are at WAR (or something, “wherefore art thou WAR on terrorism”) with someone somewhere, I distinctly remember that we can, let’s say bend, certain parts of the Constitution. This is very familiar to me…

“[Surveillance] of those of [input group here] origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the [President and the NSA] that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the [surveillance] order...

[The surveillance] of [American] citizens [in] their homes, except under circumstances of direct emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger....”

OK, I am good again.

A little satire to keep the humor in our lives throughout all of this. Our Constitution is strong and we have weathered problems like this in the past. We will get past this one also, as soon as we repeal the 22nd Amendment.
12.19.2005 3:20pm
Beetle Bailey (mail):
Oops . . . sorry for the double post. computer overwrought.
12.19.2005 3:21pm
Alan Meese (mail):
The Original T S

1) The terrorists in Afghanistan killed by B-52 Bombers, US Paratroopers and Marine Helicopters would be surprised to know that there was no U.S. invasion of that country.

2) In The Protector, 12 Wall. (79 U.S.) 700, 702 (1872), the Supreme Court held, unanimously, that the Civil War started before Congress declared it.
12.19.2005 3:25pm
The Original TS (mail):
Allan Meese,

I find your position distinctly odd. You reference Justice Marshall and Marbury but one of the holdings in Marbury is indeed that mandamus lies against the executive (at least in most cases). The President is, therefore, required to enforce laws found by the judiciary to be constitutional whether the President likes them or not.
12.19.2005 3:27pm
Christopher M (mail):
Alan Meese -- had I not capitulated to Greedy Clerk's cogent points, I would reply as follows:

You're arguing about something that's not even relevant here. For argument's sake, let's say it's true that the President should refuse to obey laws he thinks unconstitutional, without challenging them in court and in fact without even telling anyone that he thinks them unconstitutional. That doesn't mean that the other coequal branches of government must suddenly bow down and submit to the President's judgment. When the ACLU sues to enjoin the NSA from conducting warrantless surveillance on U.S. citizens, do you agree that the courts should independently decide whether the laws and the Constitution permit such surveillance, and enter an injunction if they do not? And that the appropriate parts of the legislative branch should independently decide whether the President has violated the laws and the Constitution in a way that warrants impeachment?
12.19.2005 3:35pm
Medis:
I don't see anything unconstitutional about FISA, unless it actually goes too far in authorizing searches (given the 4th Amendment). It certainly cannot be the case that FISA is unconstitutional simply because it applies to the military--again, Article 1 specifically grants Congress the power to make rules for the armed forces, and it further grants Congress the power to make all necessary and proper laws for the execution of any power of the United States (not just its own powers).

Indeed, some people seem to be reading an exception into the NPC for the President's CiC power. That exception is not there. Similarly, some people seem to be reading an exception into the President's own Take Care Clause for laws affecting the military. Again, that exception is not there.
12.19.2005 3:36pm
Alan Meese (mail):
The Original TS

1) Mandamus would only lie against the President if there is Federal Jurisdiction, i.e., a case or controversy. In the present instance, there is none. Absent such a case or controversy conferring jurisdiction on a Federal Court, the decision by the President not to enforce a law would be the "last word" on the matter. This is what Madison meant when he said: "the prevalence of one or the other department must depend upon the nature of the case, as receiving its final decision from one or the other, and passing from that decision its into effect, without involving the functions of another." In some cases, the President's decision goes into effect with the participation of the judiciary.

In other words, the fact that a court might in the future and order the President to act (or not act) does not mean that the President must ignore the Constitution when acting (or not acting).

2. In the same way, Congress can refuse to pass a law because they believe the law to be unconstitutional, even if the courts have said that such a law WOULD be constitutional.

3. But, this seems moot. What judicial decision has the President ignored? None that I know of. Indeed, I have heard of (but not read) some appellate decisions that confirm some inherent authority of the President to engage in wiretaps of this sort, without judicial approval.
12.19.2005 3:37pm
TM Lutas (mail) (www):
The Original TS - We last declared war in 1943. It was on Romania. Should we stop referring to Korea and Vietnam as wars? In a post-westphalian world, a declaration of war against Al Queda would be appropriate but it would also create innumerable problems including calling into grave doubt the entire teetering system of international law. Are you really advocating this?

go vols - The Congress, in the form of four Democrats and four Republicans, was notified and could have either passed legislation pulling all relevant funding, explicitly criminalizing the practice, or introduced articles of impeachment for overstepping Article II powers. None of that happened. Why?

Christopher M - Thanks for the court reference. The real treat is that the type of power that is represented by Al Queda was essentially written out of existence by the Peace of Westphalia and the system of national sovereignty. There is no case law on this kind of power because we've never had to deal with this sort of thing with our nation's founding significantly post-dating Westphalia. Al Queda is not a domestic organization. Al Queda is not a foreign organization. Any westphalian characterization of a non-westphalian organization will be dead wrong.
12.19.2005 3:42pm
Alan Meese (mail):
Christopher M:

I agree with you on the impeachment question. And note that Congress would be the sole judge of its impeachment power, i.e., they would make a determination of what is an impeachable offense without asking the courts. This seems to reinforce Madison's point.

On the suit by the ACLU, I'd have to think about whether there is a basis for jurisdiction. Will the ACLU be able to locate individuals who meet the very narrow criteria that one has to meet to be subject to this program? Absent such a plaintiff, such a lawsuit would be dismissed for lack of standing.

And, I'd be shocked if a court actually issued such an injunction. But, I've been shocked before.
12.19.2005 3:43pm
The Original TS (mail):
1) The terrorists in Afghanistan killed by B-52 Bombers, US Paratroopers and Marine Helicopters would be surprised to know that there was no U.S. invasion of that country.

2) In The Protector, 12 Wall. (79 U.S.) 700, 702 (1872), the Supreme Court held, unanimously, that the Civil War started before Congress declared it.


3) My cat's breath smells like cat food.

Each of these three facts is equally relevant to my argument.

Since Afghani terrorists are not particularly noted for their legal analysis, I think we can put their opinion to the side. When you're talking about suspending the Constitution, legal niceties matter. From the legal perspective, the U.S. no more "invaded" Afghanistan than it "invaded" The Phillipines by sending troops to help root out Abu Sayyaf.

As for your Supreme Court cite, thanks for the chuckle. Once again, you're eliding conditions which authorize the executive to use force with conditions which may (or may not) authorize the executive to suspend the Constitution. Anyway, your case isn't even close to on point as it's a practical calculation of when there was an actual state of insurrection sufficient to toll the time for filing an appeal. The case is quite short if anyone else want to have a look. Here's the link.

http://www.justia.us/us/79/700/case.html
12.19.2005 3:46pm
Justin (mail):
go vols - The Congress, in the form of four Democrats and four Republicans, was notified and could have either passed legislation pulling all relevant funding, explicitly criminalizing the practice, or introduced articles of impeachment for overstepping Article II powers. None of that happened. Why?

It should be pointed out that doing so would have subjected any of those four Congressmen to impeachment and incarceration for disclosing classified information. One of the neatest and dangerous tricks the Bush administration has done is to classify the simple fact that they were breaking the law, and then defending their behavior on the failure of an objection by those who knew, and couldn't express that knowledge in any way, shape or form, under the penalty of prosecution.
12.19.2005 3:47pm
AppSocRes (mail):
Original TS:

I appreciate your point about the importance of distinguishing between a war declared by Congress and situations where there is no suspension of the usual constraints on the President, e.g., the Indian Wars, the Phillipine "Insurrection", Korea, Vietnam, Iraq, Afghanistan, Iraq, operations against Al Q'aida, etc., .

I am wondering whether under international law it is even possible to declare war against, e.g., the Taliban (as an illegitimate government in Afghanistan) or Al Q'aida and its supporters. Has anybody researched 18th and 19th century analogies to the current situation; for example warfare against piracy, slave trading, political entities without all the trappings of the nation-state, and the like?
12.19.2005 3:48pm
The Original TS (mail):
The Original TS - We last declared war in 1943. It was on Romania. Should we stop referring to Korea and Vietnam as wars? In a post-westphalian world, a declaration of war against Al Queda would be appropriate but it would also create innumerable problems including calling into grave doubt the entire teetering system of international law. Are you really advocating this?

Look, I'm not the one who wants to use "being at war" as an excuse to trash the Constitution. All I'm saying is that if the Executive can legitimately use "war" as a reason to suspend Constitutional protections, then at the very least it needs to be up to Congress to actually declare war.

The alternative, that we're at war whenever the President du jour decides we're at war, makes Constitutional protections a dead issue. It's not that I don't trust George Bush with this kind of power, it's that I don't trust anybody with this kind of power. Whatever happened to "We are a nation of laws, not of men?"
12.19.2005 3:54pm
Alan Meese (mail):
Original T S

The case says that the "WAR" started when Lincoln ordered a blockade --- without a Declaration of War.

I have no idea what you mean when you say I am arguing for a suspension of the Constitution. Nothing in the Constitution limits the President's Commander-in-Chief power to the existence of War Declared By Congress. If Congress delegates to the President the power to use force against our enemies, he may, as Commander-in-Chief, take command of our forces and employ them against our enemies. What in the Constitution says otherwise? Moreover, even without such a delegation, the President may, as Commander-in-Chief, repel or deter attacks by actual or potential agressors. Again, what language in the Constitution states otherwise.
12.19.2005 3:56pm
J..:
On the suit by the ACLU, I'd have to think about whether there is a basis for jurisdiction. Will the ACLU be able to locate individuals who meet the very narrow criteria that one has to meet to be subject to this program?


The ACLU suit.
12.19.2005 4:01pm
Medis:
TMLutas,

Federal law already explicity makes it a crime for anyone to conduct certain forms of surveillance without FISA authorization. Suppose that the President informed one or more members of Congress that he was ordering people in the NSA to commit such a crime. What are they supposed to do--make it a crime again?
12.19.2005 4:03pm
Alan Meese (mail):
Medis:

Am trying to keep up with your abbreviations!

NPC does not empower Congress to take away another branch's power. By your reading, Congress could use NPC to take away POTUS power to veto a bill or appoint officers of his choice to positions Congress created. Instead, NPC there to facilitate exercise of various powers, including that by CIC. So, FISA law usually (but not always) facilitates CIC power, as you point out. But, sometimes it does not but instead interferes with CIC power. The fact that the FISA law flows from NPC does not mean that NPC grants Congress the power to constrain POTUS's exercise of CIC power.

TCC cuts against you, since the "Laws" include the Supreme Law, including the CIC, veto power, appointment power, etc. No one has advocated an exception to the TCC. Instead, I at least am relying upon it and no one in over 100 posts has even tried to explain why the "laws" in the TCC do not include the Constitution which is, according to the Supremacy Clause, well, law. If I have missed such an explanation, I apologize.
12.19.2005 4:23pm
Nobody Special:
J.-

Wrong ACLU suit.
12.19.2005 4:33pm
Medis:
Alan,

When the Congress uses its explicit power to make rules for the government and regulation of the armed forces, and its general power to make laws for the execution of the President's powers as Commander in Chief, they are not actually taking power away from the President. That is because the Constitution does not actually say that the President shall have the power to order the armed forces to do whatever he wants. Rather, it simply puts him in command of the armed forces.

But a military command is still bound by law--the discretion of a military commander does not include the authority to order his forces to violate the law. In other words, command does not imply completely unfettered discretion--it merely implies discretion within the bounds of the commander's lawful authority.

So, the Congress does not "interfere" with the President's power as Commander in Chief by passing laws like FISA. And that is because the President as Commander in Chief never had the power to issue orders commanding the armed forces to violate the law, so merely defining or changing the applicable law does not take power away from the President.

Finally, I don't understand why you think FISA is unconstitutional (unless you think it goes too far under the 4th Amendment). You suggest the analogy of Congress trying to take away the veto power by statute. But the equivalent to that would be something like a statute saying that the Speaker of the House shall command the armed forces, rather than the President. That really would be unconstitutional, because it would place someone else in command of one of the armed forces.

But FISA does not remove the President from his role as commander in chief. It just provides a law applicable to the military, and that no more removes the President from his command than the UCMJ removes any other military officer from his or her command.

In short, this is a false conflict. The President can both faithfully execute FISA and exercise his full authority as CiC, because his full authority as CiC never included the authority to order the armed forces to violate federal law.
12.19.2005 4:43pm
Monkberrymoon (mail):

You're eliding two entirely different things. Once again, I will repeat. The ONLY way for a war to be constitutionally declared is for Congress to declare it. Period. There is no possible debate on this point.

Do you have a legal citation to back up this statement?
12.19.2005 5:39pm
Monkberrymoon (mail):
By that, of course, I mean your implied argument that a declaration of war that does not use the magic words "declaration of war" is not a declaration of war.
12.19.2005 5:40pm
abb3w:
Justin: imprisoning the congressmen might be difficult, depending on the manner of the disclosure. If the disclosure is in the open on the floor of House or Senate, Article I Section 6 would seem to leave their disclosure out the reach of Executive complaint. I believe this Legislative Privelege is one of the reasons why much of the executive hates telling them classified information; if they leak it, they can only be made to answer for it by their own house (by censure or expulsion).

I would also quibble with Meese's assessment that Executive independence means the President has the last word as to whether this is legal. He has the third-to-last word. The penultimate word belongs to the House, with the power to Impeach; and the ultimate word with the Senate, who try the Impeachment.
12.19.2005 5:44pm
Remus Talborn (mail):
But a military command is still bound by law--the discretion of a military commander does not include the authority to order his forces to violate the law.

Anything you decide to do is within your discretion, and if the law grants that discretion, anything you decide to do is lawful.
12.19.2005 5:46pm
Aaron:
Is it worth mentioning that, while POTUS is the CINC of the armed forces, that otherwise he is just the Executive of civlilian America? Therefore, while he may have extraordinary powers WRT to the military, they don't carry over into civilian authorities?

Last I heard, NSA is a civilian agency; consequently, in the absence of a CONGRESSIONALLY declared state of war, the normal rules must be followed; i.e., FISA applies.
12.19.2005 6:21pm
Charlie (Colorado) (mail):
Folks, I'm not a lawyer, but I am an intelligence guy, and i've been following this argument. Let's, first, deal with the operational issue.

Let's say, for purposes of illustration, that a known or suspected al Qaeda member, Alice, is captured in Pakistan. ("Alice", in this case, might be Khalid Sheikh Mohammed for a concrete example.) At the time of capture, Alice has a laptop computer with a number of phone numbers, email addresses, and possibly some IP addresses either stored in user files, or in some logging data. One of these phone number is a "disposable" cell phone belonging to Ben in the USA. Ben is a legal permanent resident of the US and therefore might otherwise be considered a "US person."

It is the nature of this kind of network that once a node is known to be compromised, all connections to that node are dropped. ben would put the cell phone in the trash or give it to a rape crisis center or whatever. So the various intelligence agencies --- this lies somewhere in botht he domain of CIA and NSA --- know there is a very small time, in the order of hours, to exploit this intelligence before it goes stale. They need to intercept communications. (It might even be as simple as holding the phone up to Alice's mouth when a call comes in.)

Now, assume they feel they need FISA authorization before they can do so. How likely is it that FISA authorization can be obtained in a sufficiently short time? Operationally, you need to be able to act in minutes, not hours, to exploit this intelligence; we have the former DIRNSA's statement that this has led to collecting intelligence they wouldn't otherwise have had.


Aside: As an intelligence guy, by the way, this disclosure does bother me quite a bit. What it's done it put on notice everyone from whom intelligence is currently being collected that we're doing the collection. They probably stopped. As the president said in his press conference today, we've had that experience before, with the bin Laden satphone intercepts. Which, by the way, were blown by Orrin Hatch, so he's picked an example out of his own party. It's also notified al Qaeda et al that in the future, they have a much shorter window before a captured channel could be exploited; they will probably change their procedures as a result. At least I sure as hell would. Personally, I'd think the Attorney General should be thinking about prosecution under 18 USC 793, not 50 USC 1801 et seq. But not prosecuting the Administration.



Legally, and now recall I'm not a lawyer, just a logician, but I note that §1801(a) defines who a "foreign power" is, and §1801(b) defines who an agent of a foreign power is. As I understand it, once you're defined to be an "agent of a foreign power" you no longer enjoy all the protections of a "US person." Since 1801(b) specifically includes people engaged in or supporting international terrorism, seems there would be an argument that the Attorney General could authorize surveillance and intercept on that basis using the procedures in §1802 et seq.

It would also appear that, from that USA v bin Laden decision, they specifically appear to give some strength to that argument, but then exclude evidence collected under such an exception from the trial. this seems, to my untutored legal mind, to make good sense --- and operationally, it's fine with me, because I don't want to try these people, I want to track down their superiors and cells and kill them. We can try the survivors; this is a war.

But, it also appears that this has been a question before --- the events in USA v bin Laden happened in 1997. US Signals intelligence Directive 18 lays out the procedure and seems to very closely match what was described in Bush's statement. (See sections 4 and 5.) This directive dates from 1993. It's been widely reported that there was a program called ECHELON that did collect intelligence throughout the 90's. And I've seen it reported that the Carter administration made a similar executive order in 1979.

So, again, IANAL, but it seems like there's some precedent here.

Finally, practically, it appears we've got a situation in which (a) the Administration received competent legal advice that it was permissible; (b) they followed the procedures laid out in the statute and USSID 18; and (c) that it is something that has been done in previous administrations, and if we have to be partisan about it, by administraions of both parties.

Given all of these things, don't you actual lawyers suspect that there's at the very least a pretty strong "good faith" issue here, ie, that the Administration could in all good faith believe it to have been legal? Notwithstanding any Constitutional supremacy or separation of powers arguments?
12.19.2005 7:05pm
Medis:
Remus,

I'm not sure what you are trying to claim. People are often granted discretionary authority but are still required to obey the law when exercising that discretion. So, for example, I am the owner and driver of my car. I thus have a lot of discretion over how I use my car ... for example, I can decide when to drive it, and where to drive it to. But I still have to obey the traffic laws while I drive, and so I cannot cite my discretion as the owner and driver of my car as a defense to violating a traffic law.

The same thing is true of the President: he is Commander in Chief, and thus has discretion over the operations of the military. But he is still bound to faithfully execute the laws, so cannot use his discretion as CiC to order the armed forces to violate applicable laws.

Charlie,

As noted above, FISA has a emergency surveillance provision, which allows retroactive warrants within 72 hours. Also, US persons who are agents of foreign powers can indeed be the target of electronic surveillance inside the United States ... but the NSA still needs a warrant for such surveillance (at the latest within 72 hours afterwards, in an emergency).
12.19.2005 7:29pm
The Original TS (mail):
I don't know what kind of "intelligence guy" you are, Charlie but you clearly aren't involved in the legal end. FISA allows you to get warrants after the fact in recognition of just this type of situtation.

So you're free to intercept all you like without any advance permission at all so long as you wake up the guy at CIA Legal and get them to start the warrant process.
12.19.2005 7:36pm
go vols (mail):
Lutas--

I don't know what they were doing. Maybe they thought to reveal the information would itself be criminal. Maybe they were chickensh*t. Jay Rockefeller's letter suggests the former, but given that we're talking about Democratic members of Congress, the latter is equally likely.

This is a simple situation. The administration could have used the FISA process, with or without the 72 hour rule depending on the situation. That they did not suggests either that their search would not have met FISA standards (stunning, since the failure rate for the state here is almost zero), or they felt they did not need to do so because Article II swallows the rest of the Constitution during wartime. Either option is disturbing.

What is the limiting principle on powers granted by an undeclared war that has no obvious endpoint? Is that a paradigm we're willing to adopt? If I'm overeacting, someone who defends the President provide me with some sort of limiting principle.

BTW: Where are the originalists? Or do you only come out and play when money is at stake?
12.19.2005 9:07pm
jen:
so when they refer by domestic organizations are they referring to citzens of the united states?
12.19.2005 9:30pm
jen:
Question:
For example what if a military person overseas had some legal problems before he left, and the military new about it; could they monitor and record each phone call to find if he is a suspect of a crime and ended up having some clues. Could they try convict him when he arrives back to the states. How Would FISA,NSA, &military handle that?
12.19.2005 9:38pm
Charlie (Colorado) (mail):
Well, TS, if the number of times I wrote "I'm not a lawyer" didn't convince you, then hopefully you're convinced now. But you're not an intelligence guy, either: I'm willing to bet real money that someone working intercepts based on phone numbers taken from a laptop doesn't have a nu8mber for the CIA attorney, and for that matter doesn't work for the CIA anyway.

But I'll note that as I read the code, §1802(a)(3) describes a procedure under which notification of these, specifically warrantless, searches are sent under seal to the FISA court, and kept under seal and classified --- classified Top Secret, special channels, compartmented, code word, burn before reading --- this is classic "sources and methods" sorts of material. Since members of Congress were informed, as required under the section of the law describing warrantless intercepts, then I'd imagine the rest of the requirements were followed too.

One of the points that Orin makes above is that this law is vague and hard to interpret; this may be one of those places.
12.19.2005 9:41pm
The Original TS (mail):
I'm willing to bet real money that someone working intercepts based on phone numbers taken from a laptop doesn't have a nu8mber for the CIA attorney, and for that matter doesn't work for the CIA anyway.

Well, then they need to get that number, whoever they work for. They need to have procedures in place and they need to be extremely sensitive to the legal implications of what they're doing. If this means placing a JAG or DOJ lawyer on every intelligence team then that's what needs to happen. There is no reason that any intelligence agency cannot get a warrant whenever they are legally required to get one, especially since they can get them after the fact.

No doubt the people bending the rules have the best of intentions. That is, however, no excuse. I'm forced, once again, to pull out my favorite Kozinski quote.

"Liberty - the freedom from unwarranted intrusion by government - is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark."
12.19.2005 10:00pm
Charlie (Colorado) (mail):
But TS, §1802 specifically lays out a procedure under which intercepts can be done without a warrant. If the procedure exists, doesn't that pretty well prove that the statute allows it at some times? I think part of what they're saying is that under 1802 they're not legally required to get one.

It's getting to depend on pretty fine parsing of §1801 ....
12.19.2005 10:32pm
Bob Bobstein (mail):
Charlie, the discussion has moved elsewhere so I won't note any quibbles, but just wanted to thank you for lending your expertise and perspective to this thread.
12.20.2005 8:02am
Medis:
Charlie,

Defining the scope of 1802 actually isn't very complicated. It basically allows electronic surveillance without a warrant of some (but not all) foreign powers, including foreign governments and their openly acknowledged parts, provided that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."

So, for example, you can conduct electronic surveillance under 1802 on the Brazillian government itself. But if you suspect that a US citizen is secretly spying for the Brazillians and want to target that person, then you need to get a FISA warrant.

But for some reason, people are trying to argue that we can target suspected associates of Al Qaeda under 1802. That is clearly wrong for two independent reasons. For one thing, we couldn't even use 1802 to conduct electronic surveillance on Al Qaeda, because it is not one of the foreign powers listed in 1802 (very clearly--it falls under 1801(a)(4): "a group engaged in international terrorism or activities in preparation therefor"). For another, even if Al Qaeda was one of the listed foreign powers, you cannot use 1802 to target US persons even if they are suspected of being agents for that foreign power. For such surveillance, you need a FISA warrant.

Finally, I will note that no one in the Administration, at least to my knowledge, has actually cited 1802 as authority for all of this surveillance (or FISA in general). As far as I can tell, this is an argument that arose in the blogosphere, and no one with actual knowledge of the program is making it.
12.20.2005 8:03am
corngrower:
It is a fact that the United States was attaked on September, 11. 3000 + children, women, and men were murdered. All the rest of the 'legal' rambling are moot. The United States was attaked, and the Constitution has laid out the order of RESPONSIBILITIES. y'all get a vote the first Tuesday after the first Monday, November of 2008!
12.20.2005 10:30am
abb3w:
I've just looked through the transcript of Bush's announcement, the NYT article, the FISA law, and the 1972 case (407 U.S. 297) that gave birth to it. Speaking as an engineer (IANAL), the error bars are too small to say if this is a tempest in a teapot, or one in the Gulf, headed for New Orleans.

The NYT article says there are around 500 people monitored at any time; it does not say all of those are "US Persons" re: FISA (EG: illegal entries). As others have noted, FISA also allows for emergency warrantless searches... up to 72 hours, provided that a retroactive warrant is sought, and that the intercepts are destroyed if the warrant is denied. And if that's all there is, it's time to drink the tea.

In the middle ground, it may be that Bush's executive order states such emergency searches are expected to be used regularly in the War on Terror, or relaxes the process for emergency search; say, that agents merely need notify the AG they think they need one, and are begining the intercepts, but do not examine them until the AG files for the warrant. It may also be (per 50 USC 1811) that the President has been repeatedly authorizing intercepts for 15 day intervals... bringing in all of the above discussion as to whether there has been a proper "declaration of war by congress" (since that is the condition specified in FISA). However, since President Bush refers to "reauthorizing every 45 days", that would be a bit of a problem if the coverage isn't equally periodic.

A further stretch of the law might be that these intercepts are intended for use only in the prevention of crimes, and will not be used as the basis for criminal investigations or criminal prosecution. This MIGHT be kosher under the 1972 SCOTUS case, but looks really bad under FISA. Given that there have been references to the Brooklyn Bridge plot being one such, it also doesn't sound to be the case.

The worst case is the president has, effectively, declared FISA moot by executive order. As someone with a libertarian's distrust of FISA (even as it stands) it should be easy to guess my view on how congress should respond to that.
12.20.2005 10:37am
corngrower:
I would welcome and encourage Congress to act and endorsse or restrict the Presidents actions. This is NOT! A legal question. But one of the limits on the specific limitations on those branches.
12.20.2005 10:53am