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Great Post, and Very Good Comments:

I was extremely impressed by Orin's post on the domestic surveillance issue -- and also by the general quality of the comments, which are mostly very substantive, thoughtful, and well-informed. Don't be distracted by the first comment, which is from a commenter whose comments often tend toward sarcasm and political point-scoring. Read past it and past the thank-you notes to Orin (which are much appreciated but which I can't claim are deeply substantive), and you'll see a generally excellent discussion.

Christopher M. (mail):
Don't be distracted by the first comment, which is from a commenter whose comments often tend toward sarcasm and political point-scoring.

Yes, but they're often also funny as hell.
12.20.2005 12:31am
Jamesaust (mail):
So that's what an "A" final exam answer in ConLaw looks like!
12.20.2005 2:25am
PantsB (mail):
Here's a question that I think will become increasingly important in the next few days (and may very well be why the Administration is attempting to deflect from the issue and why the President personally tried to bury it):

Why didn't they use the FISA court? Everyone agrees that the standard for a warrant from FISA is very low. FISA is a secret court. FISA allows for a retroactive warrants up to 72 hours after monitoring begins.

Given those facts, is not the simplest solution that the warrants would not have been granted had the application been submitted? If we assume that is the case, it indicates these wiretaps were not legitimate. Either they were sometimes (always?) entirely domestic, or they sometimes targeted individuals that were not related to national security or terrorism or both. In light of the recent revelation of CIA monitoring of anti-war groups, its also difficult to say the federal government would not sink to using its powers to monitor political foes.

The President doesn't have unfettered power, even in wartime.
12.20.2005 2:26am
Roger Schlafly (www):
Why didn't they use the FISA court?
Maybe they are doing some automated mass surveillance that the FISA court might reject.
12.20.2005 3:24am
Medis:
PantsB,

I think the most obvious answer is 1805(a)(3)(A), which requires the FISC to find that "there is probable cause to believe that . . . the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States."
12.20.2005 4:27am
AppSocRes (mail):
One possible reason the administration may have by-passed the FISA process is timeliness. Preparing a submission to a FISA court can take significant time and resources. The hearing process -- according to postings I've seen on Volokh that are trying to make the point that the process is quick -- takes a minimum of 3-4 days. There is an emergency by-pass procedure but it kicks in only under special circumstances and is good for only a limited period of time. If the administration felt that there was a critical need for extended surveillance, they may have seen FISA as a catastrophe-threatening hindrance.

FISA was written before cell phones, the internet, and other such technologies. It was also a by-product of the Church Committee and the generally anti-intelligence atmosphere that existed post-Watergate and post-Vietnam. That public support seems to be rising for the President, rather than falling, after the latest brouhaha suggests that now the public is more interested in security than privacy. Maybe the moral is that we need more PATRIOT Act-like changes to FISA to give US intelligence agencies more lattitude and discretion in their intelligence gathereing activities.
12.20.2005 8:27am
Jeffersonranch (mail):
Death of loved ones brought about by persons willing to hurt innocents will so enrage those hurt by this evil act they will demand the President act with swift response.No amount of legal writings will help in the defence of the population against an enemy that allows evil to dictate its policy. They will not fight with a standing Army and will try to destroy from within the population. Our representative Republic cannot deal with this evil and maintain all civil liberties. In life we must make choices. If you were President what would be your choice.
12.20.2005 9:06am
Medis:
ASR,

Here are the emergency procedures in 50 USC 1805(f):

"(f) Emergency orders

Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that— (1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and (2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists; he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. . . ."

So, I'm not sure what you mean by these emergency procedures only applying in "special circumstances"--they apply if the facts would otherwise support a FISA warrant, but the government could not get one in time by exercising due diligence. And if in practice getting approval within 72 hours was proving too "cumbersome", then the President could have asked Congress to change the statute. And yet he didn't even ask for such an amendment.

So, frankly, this entire line of reasoning actually makes no sense as a rationale for the President's program. Indeed, if the problem was really just that 72 hours was not long enough for administrative reasons, but the President was otherwise willing to faithfully execute the law by enforcing the FISA procedures, then the President could have temporarily authorized the government to take longer than 72 hours to get the warrant if necessary, while at the same time he sought an amendment of FISA. I'm not sure that is legal either, but at least that would make sense if it was really just an issue about whwther 72 hours was long enough.

Instead, the President authorized doing the surveillance without ever seeking a warrant. And he kept reauthorizing this program over the course of years without ever going to Congress. It is hard for me to see that as a reasonable response if the problem was just that the 72 hour limit was proving too cumbersome. Instead, that seems like a response to the substantive requirement of the emergency procedures: that the facts must be such that they could actually get a FISA warrant.

In other words, instituting an ongoing program in which they never seek a warrant at all really only makes sense if they want to avoid judicial review entirely (cumbersome or otherwise). And I strongly suspect they didn't go to Congress because they knew that they would not get authorization on those terms (indeed, AG AG basically said as much).

Which, incidentally, casts significant doubt on their claim that Congress intended to provide such authorization in the 2001 AUMF.
12.20.2005 9:24am
Apodaca:
AppSoc Res writes:
FISA was written before cell phones, the internet, and other such technologies.
Of course, FISA has also been amended repeatedly to account for such new technologies. For instance, the Patriot Act revised the FISA definition of electronic surveillance (at sec. 1801(f)(2)) to exclude
the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18....
Likewise, the Act gave FISA a "roving wiretap" provision similar to the provisions present since 1986 in the Wiretap Act (the criminal investigation statute, aka Title III).

In other words, the claim that FISA is too antiquated to handle new technologies is not well founded.
12.20.2005 9:30am
JamesB:
Senator Rockefeller just released this letter he wrote to the Vice-President when he was briefed on this.

http://everythingbetween.com/images/rockefeller.pdf
12.20.2005 9:43am
Nobody Special:
So much for the Democrats claiming that Bush did not, in fact, tell them.

Although, honestly, he shouldn't. Minority parties should be frozen out of all decisionmaking in the Congress.
12.20.2005 9:58am
Lawbot2000:
Sorry, that's actually a B- con law exam answer because he gets punished for going over the page limit.
12.20.2005 9:58am
John Lederer (mail):
I suspect that there is a total mismatch between the base assumptions underlying FISA and the technology actually being used.

FISA assumes that first investigators find a person of interest, then start electronic surveillance of him.

I think the opposite is the case. Electronic surveillance of all occur and is used to identify persons of interest. Morever I suspect the actual human analysis is of historical communications as well as prospective.


There is nothing unusual in this from the viewpoint of electronic intelligence in wartime. How many times in WWII do you suppose a piece of intercepted information suddenly made sense when historical records were examined. One example is the determination that Midway was the destination of the Japanese main fleet and the Japanese operations in the Aleutians a feint. U.S. forces deliberately sent a message about Midway in the clear, then picked up a Japanese code name for Midway in a Japanese message about the intercept, and then could verify that a whole raft of previously intercepted messages dealt with Midway as a target.

You can't make it fit within FISA -- the frameworks are totally different- temporally and in scope. FISA assumes propsective surveillance. In reality you suck everything in, then attempt to determine what in it is significant by looking for patterns.
12.20.2005 10:05am
John Lederer (mail):
I suspect that there is a total mismatch between the base assumptions underlying FISA and the technology actually being used.

FISA assumes that first investigators find a person of interest, then start electronic surveillance of him.

I think the opposite is the case. Electronic surveillance of all occur and is used to identify persons of interest. Morever I suspect the actual human analysis is of historical communications as well as prospective.


There is nothing unusual in this from the viewpoint of electronic intelligence in wartime. How many times in WWII do you suppose a piece of intercepted information suddenly made sense when historical records were examined. One example is the determination that Midway was the destination of the Japanese main fleet and the Japanese operations in the Aleutians a feint. U.S. forces deliberately sent a message about Midway in the clear, then picked up a Japanese code name for Midway in a Japanese message about the intercept, and then could verify that a whole raft of previously intercepted messages dealt with Midway as a target.

You can't make it fit within FISA -- the frameworks are totally different- temporally and in scope. FISA assumes propsective surveillance. In reality you suck everything in, then attempt to determine what in it is significant by looking for patterns.
12.20.2005 10:11am
corngrower:
Anyone have a clue how many wiretaps have been used outside FISA? I 'heard' Monday that the number was less than thirty. If that is true, whats the fuss about activities that could be construed as legal anyway?
12.20.2005 10:12am
DK:
IMHO this thread is asking the right question -- why didn't they use FISA?

I have a couple theories about this:
1. The W. admin has some weird legal theories about presidential power, and they prefer to act on these theories until a court clearly says no, rather than looking for compromises that would avoid a constitutional or legal confrontation. Thus, if some admin lawyers thought they should go to FISA and others had a rationale for not going to FISA, the administration would choose not to go to FISA.
2. the facts involved actually do fit into a FISA exemption, but they don't can't reveal the exonerating facts without compromising national security. Thus, we get a political circus.
3. the facts do violate FISA, but the actual facts are so clear that W. thought he had to proceed (i.e. they are tapping calls between known Al Qaeda members rather than calls between Cindy Sheehan and Joe Wilson).

Right now, I think that one or some mix of these theories must be true, and that the Bush administration wouldn't be dumb enough to break FISA for a venal political reason.
But, so far, the Bush administration has been consistent in surprising me in how dumb, venal, and insensitive to public opinion they can be. I really hope I don't get surprised again.
12.20.2005 10:26am
JamesB:
From the viewpoint of people who inherently distrust the government; what we are seeing is a deliberate attempt of this administration to avoid any and all congressional and judicial oversight of their activities. If that is not possible they make the attempt to minimize such oversight.

I do not necessarily fall into that camp, however I am disturbed by that fact that after issuing the directive the president did not turn to congress and request changes to FISA. Especially considering we had already amended it with the original Patriot Act.
12.20.2005 10:29am
corngrower:
If the Judicial Branch can overturn the Executive Branch in this instince, when can the Executive Branch overturn the Judicial Branch???
12.20.2005 10:37am
Christopher M. (mail):
Here's my latest question. The Bush/NRO position is that this leak was a serious crime which will help our enemies, because previously they did not know that their international calls were being monitored. Yet the Bush/NRO position is also that of course the President has this power, it's clearly implied by Article II, and it would have been silly for Americans or anyone else to think that the President wasn't using his inherent authority to place warrantless wiretaps to the fullest.

Is there some way to harmonize those positions? Is it that our enemies are so stupid that they wouldn't figure out that the President was likely doing something that the Constitution permits him to do? Is it some sort of pseudo-Straussian thing, where we need to let people believe that the Constitution and laws mean one thing, while the Executive secretly decides that they mean something else?

I really don't get it.
12.20.2005 10:40am
Medis:
Nobody Special,

More precisly, various Democrats are claiming that they received briefings, but that the briefings left out key details. I'm not sure what else Rockefeller in particular has said, but in that letter he claims that he cannot make a proper assessment without more information.
12.20.2005 10:58am
corngrower:
This is a political battle. You will all notice that,,,with all the blather, and, bluster in the media,,,Not a SINGLE! not ONE! Elected official has offered a bill to stop the Executive branch from doing what,(according to the vast minority) is something not Constitional. All have opinions. But. Until at least ONE member of congress offers a bill, this is just sooo much self flagulation!
12.20.2005 11:07am
Roger (mail):
I think it would be a tad irresponsible to offer a bill, when it is unclear exactly what has happened, and what Congress is capable of doing. I would share you sympathies if nothing is done in a couple of months, but I don’t think there is any immediate harm in holding off.
12.20.2005 11:36am
Medis:
corngrower,

You mean a bill like, say, FISA?

If the President ends up claiming that he can order people to violate federal laws like FISA based on his Article II powers, then another bill isn't going to help. At that point, the only remedy available to Congress might be impeachment.
12.20.2005 11:36am
A. Friend:
The ungodly attacks of September 11 changed everything. It marked the beginning of a new kind of war. The War on Terrorism has no clear end, and no definite boundaries. The old laws, including constitutional safeguards, only help The Terrorists. Questioning the administration and its beliefs about the constitutional and law only help The Terrorists. We cannot surrender to terror. We cannot surrender to questioning the administation. The very fact that we are having this discussion on this blog helps The Terrorists by demonstrating to them our cowardly lack of resolve in fully supporting the administration in its pursuit of The Terrorists. There are a lot of Americans who would undermine the War against Terror by giving encouragement to The Terrorists. Yesterday, for example, I saw an "American" stub his toe on a step. His cowardly display of timidity and weakness encouraged The Terrorists by showing American weakness in the face of this new kind of war. God bless America, and may we prevail against The Terrorists and Charles Darwin!
12.20.2005 11:56am
A. Friend:
The ungodly attacks of September 11 changed everything. It marked the beginning of a new kind of war. The War on Terrorism has no clear end, and no definite boundaries. The old laws, including constitutional safeguards, only help The Terrorists. Questioning the administration and its beliefs about the constitutional and law only help The Terrorists. We cannot surrender to terror. We cannot surrender to questioning the administation. The very fact that we are having this discussion on this blog helps The Terrorists by demonstrating to them our cowardly lack of resolve in fully supporting the administration in its pursuit of The Terrorists. There are a lot of Americans who would undermine the War against Terror by giving encouragement to The Terrorists. Yesterday, for example, I saw an "American" stub his toe on a step. His cowardly display of timidity and weakness encouraged The Terrorists by showing American weakness in the face of this new kind of war. God bless America, and may we prevail against The Terrorists and Charles Darwin!
12.20.2005 11:56am
Theodore (mail):
Corngrower asked:

If the Judicial Branch can overturn the Executive Branch in this instince, when can the Executive Branch overturn the Judicial Branch???


The answer is when he can get away with it politically. vide, Andrew Jackson's dealing with the Cherokee nation and his contempt for orders of the U.S. Supreme Court in that matter.
12.20.2005 2:24pm
corngrower:
Medis

The Executive branch of our government is doing its job. There is a debate on the FISA law. If...Levin, Feingold, Boxer, etc. dont like it. Introduce a law that spells out the specific violations taking place, and put that law up to a vote.

Problem?

Yes, anyone introducing such a bill would be out of a job on the next election cycle. Oh. I forgot. It is better for the above to have the battle than fix the problem.

Yes we are a nation built on checks and balences. Just Congress refuses to do its job.

Get a clue. SCOTUS does not govern the nation.
12.20.2005 2:26pm
PierreM (mail):
John Lederer is essentialy correct: the FISA assumes a criminal law perspective that assumes identifying a person or persons and specific phone numbers by other means, and then using wiretaps to gather more evidence.

The war-time model is the inverse: you do lots of listening and use that information to pursue further invesigation.

Others have asserted above that the FISA has been updated periodically to adapt to technical changes. But when the technical changes include the ability scan (and link) large volumes of phone calls, do partial real-time phrase recognition and archiving, you can't use any of that technology under the 'identify first, listen later' model. In this case, you wouldn't be 'revising' the FISA, you would gut it. So the admin is actually saying it wants to preserve the FISA for normal COIN work; but that the pursuit of combatants on US soil falls under executive prerogative as CINC. Sounds reasonable to me.

This is war-time intel gathering, not preparation of evidence for criminal prosecution. In addition, many constitutional guarantees still exist (e.g., you can't be prosecuted with the evidence gathered) if a decision to arrest and prosecute is made anyway. So what's all the noise about?

Part of all the noise has to do with the culture wars: to which Constitution are you referring? What was actually written down prior to the Warren and subsequent courts? Or the post '60's left-wing civil libertinism of emanations of the penumbra (contraception, abortion, sodomy), 'freedom of expression' (pornography, sedition). As for me, I'm quite comfortable with the pre-1960's constitution, while the later innovations are an insult both to my intelligence as a matter of reasoning and to my rights as a citizen to make law through the legislature, and are not worth much loyalty.
12.20.2005 2:45pm
ADB:
Corngrower,

The Executive can overturn the Judiciary at any time by simply NOT enforcing whatever judicial edict comes from SCOTUS. See Andrew Jackson and the Cherokee Indian case. (I think there's another case of that but my Conlaw memory is failing me). And to give you a Civics 101 class, the executive branch's job is to "enforce" the law. In this case, not only did he not enforce the law, the President probably violated it by not following the FISA.

Congress did not refuse to do the job. Congress passed the Patriot Act and frankly, the President could have asked Congress for more powers but did not. Instead, he usurped Congress by authorizing without seeking a formal law from Congress. To allow this to happen sets a dangerous precedent: whenever a President wants more power, he just authorizes it and *poof* it's his to have. That's not government for the people or by the people. It's government by dictatorship.
12.20.2005 2:48pm
PierreM (mail):
ADB: "It's government by dictatorship."

Nonsense. Where's the evidence of dictatorship? First, show me anyone who was harmed in any commonly accepted way. Second, where are the thousands of arrests? Where is the imprisoned opposition, the newspapers shut down? The spying on domestic opponents?

And don't respond, "We don't know who was spied on." Really? Then who was harmed? What good is an appartus of oppression if you can't, well, get it to oppress anyone?

Most of this discussion is taking place within a post-'60's haze of notions of civil liberties that are incompatible with both self-government and the war-time defense of the nation.

There's a reason why every President since Carter has had accusations of 'civil liberties' infringements or 'un-Constitutional' national security related activities: the ACLU conception of civil liberties is fundamentally at odds with the political powers granted the President under the real Constitution.
12.20.2005 3:03pm
rayabacus:

I really don't get it.


Christopher,

Here is a good perspective by Walid Phares about what the cost of the leak is.
12.20.2005 3:06pm
Medis:
corngrower,

I'm honestly not sure what you are suggesting. If the claim in Congress is that the President is ordering people to commit what are already crimes under FISA, I don't understand how you think Congress should legislate. Pass FISA again (maybe with an attached "And this time we really mean it!")? Pass a law accusing the NSA of breaking the law? That would actually be an unconstitutional bill of attainder.

So, I really don't get what you are proposing. If Congress finds that the President is ordering people to commit crimes, then they really only have one recourse--impeachment.

PierreM,

Why would anyone think FISA assumed a criminal law perspective? FISA was designed to deal with SPIES (eg, actual KGB agents, and US persons working for the KGB), not ordinary criminals (the surveillance provisions dealing with ordinary criminals are in Title 18, FYI).

And I actually find it a little amusing that people are implicitly asserting that the US agents of a group like Al Qaeda somehow pose a more sophisticated threat than the US agents of the KGB, or their modern equivalent. Sure, technology has changed since 1978, which is part of why it made sense for the USA-PATRIOT Act to modify parts of FISA. But the basic idea that a system designed to deal with agents of foreign governments like the Soviet Union is somehow completely inadequate for dealing with agents of terrorist organizations like Al Qaeda strikes me as laughable.
12.20.2005 3:08pm
AppSocRes (mail):
It's interesting that the Clinton administration asserted essentially the same executive prerogative as Bush. (See http://www.nationalreview.com/york/york200512200946.asp for some direct quotes of Congressional testimony.) Despite the fact that this was done in a period when there was no apparent state of emergency and for an intelligence gathering program of far broader scope than that defended by Bush, the Clinton assertion seems to have aroused far less ire than Bush's. This provides more precedent for the current administration. It also raises the question, where were all the current critics of Bush when Clinton was asserting what amounts to a much broader Presidential prerogative.
12.20.2005 3:22pm
Daniel San:
The unanswered question remains: What was the Administration doing? The President, at one point, seemed to be saying that they surveillance was happening outside of the U.S. The Attorney General drew a distinction between detecting and monitoring. The Attorney General also referred to changes brought about by new technologies. Without context, these distinctions and references tell us little. Without an understanding of the distinctions, despite Professor Kerr's very interesting post, it is difficult to have a coherent discussion of the legality of the actions.
12.20.2005 3:34pm
snead16 (mail):
If Bush's Art II/CIC inherent-authority claim is valid -- that is, during a period of self-proclaimed war, the president's authority expands to include unenumerated Art II powers that allow for the suspension of any statutory or Constitutional provision that "interferes" with the executive's claim of "necessity" -- then there is no way to remove the aforesaid president from office.

Once anyone travels down the "inherent authority" slope, then every constitutional provision is subject to the "suspension in time of war" argument. That includes presidential elections. And the 22nd Amendment limiting president's to two terms.

If the response is, "well, no one's suggesting a 'self-declared war-time president' has the power to ignore explicit limits in the Constitution regarding term of office," I suppose the question becomes, "explain the principled difference between why it is Bush must follow the 22nd Amendment in wartime but not Congress' Art I, Sec. 8 authority to regulate the armed forces (through limitations on wiretapping by the NSA, for example) and the 4th Amendment"?

What, exactly, under this inherent-authority argument stops the president from detaining American citizens on a claim of necessity as "enemy combatants," removing them from the US on a claim of necessity, moving them to God knows where, and then, again claiming necessity, leaving them incommunicado?

What limiting principle exists?

Congress at least has the express authority to enact laws "necessary and proper" to carryout its enumerated powers. No such language exists in Art II, however.

And imagine the next president (assuming we get one) deciding that American citizens who overtly dissent are giving aid-and-comfort to our enemies, so these citizens must be removed and secluded until the war's over.

Done under the president's inherent authority to ignore the 4th and 5th Amendments because it's wartime. And 4 Senators are told but with the qualifier that it's TOP SECRET, so they can't share the information or they'll be removed, too.

Again, where's the limiting principle.
12.20.2005 3:43pm
Greedy Clerk (mail):
Sorry for the sarcasm, but the positions I was taking are exactly the positions I understand defenders of the administration to take.

Specifically, there are numerous citations to the "Supremacy Clause" as justifying the President's actions --- as I understand the position, the Supremacy Clause somehow makes the President "supreme." Second, I see numerous references to the President's power as Commander-in-Chief, which gives him the power to ignore duly enacted laws of Congress -- as I understand the position, this makes him "Commander in Chief of all laws." Third, there are various references to the post 9/11 authorization for the use of force as justifying this, in addtion to the preceding clauses (never mind that if this were true, the PATRIOT Act would have been unnecessary).

So, what Professor Volokh calls "sarcasm" is in fact the position of those defending the President's actions. To wit, the President, as Supreme President pursuant to the Supremacy Clause, has disregarded a duly enacted law because he is Commander-in-Chief of all laws, and moreover we are at war with a enemy that wants to kill us (like all our past enemies, but this enemy REALLY wants to kill us) so we must disregard little constitutional "procedures" like checks and balances. In any event, the AUMF authorizes the President to do anything he wants that could reasonably be viewed as fighting terrorism, and Congress gave him this power. So there. Sounds sarcastic yes, but it is in fact the position of the Executive Branch along with its enablers in the right-wing media echo-chamber.
12.20.2005 3:43pm
snead16 (mail):
Sorry. That's "presidents" -- not "president's"
12.20.2005 3:46pm
Jerry M (mail):
The President is charged with protecting the borders of the US. The tapping was done on international calls. Where is the border on an international call??
12.20.2005 3:47pm
Greedy Clerk (mail):
Oh, AppSocRes reminds me of the ultimate justification: Clinton did it too! NRO and others love that one too.
12.20.2005 3:47pm
Greedy Clerk (mail):
One more thing re Clinton: NRO, ApoSocRes and others appear to be under the impression that during the Clinton Administraiton the ACLU and others just closed up shop and did nothing. THat wasn't the case. Sorry.
12.20.2005 3:48pm
PierreM (mail):
Medis:

US citizens killed by the KGB in the Unites States in 50 years: 0.

Americans killed by al Quaeda in the US in 1 morning: 3,000.

No, it's not laughable: it's any entirely different enemy fighting with entirely different means. The Soviets in the US were SPIES. Al Quaeda's people in the US are COMBATANTS. The Soviets were deterred by MAD, al Quaeda is not.

Got it yet?

The point is NOT to catch a spy or diplomat engaged in illegal activities (no matter how damaging). The point is to intercept combatants before they attack. The first is a law-enforcement COIN operation against a rational opponent using limited means (not unlike countering the Mafia), which is why these ops were left (largely) to the FBI. The second is a military intel operation to find and destroy an irrational opponent already inside your territory before they can strike and possibly destroy your country.

It's really amazing to see how many people simply cannot leave the Cold War paradigm behind.
12.20.2005 3:49pm
snead16 (mail):
Greedy Clerk says:

"we are at war with a enemy that wants to kill us (like all our past enemies, but this enemy REALLY wants to kill us) . . ."

Yes, but Greedy Clerk, this enemy REALLY wants to kill us WITHOUT THE MEANS OR POWER OF A NATION STATE BEHIND IT — making this enemy more dangerous than, say, the Weathermen, the SLA starring Patty Hearst, and the Black Panthers.

I'd not put the Soviet Union, the Union Army or Confederate Army, or early 19th century England on a par with those organizations . . . or this enemy.

Why? Because George Bush wasn't president then. And Karl Rove and Dick Cheney weren't around to call the shots.

And, no, VC, this is not sarcasm. It is resignation.
12.20.2005 3:54pm
evan maxwell (mail):
This is from a non-lawyer with small knowledge of that arcane thing called immigration law. I wonder about one other possible exception to all the hoopla: early in the analysis, Orin notes that the laws on eavesdropping extend to citizens and legally-admitted permanent residents.

But what if the surveillances were aimed at persons in the country on tourist or student visas or those here illegally? The hijackers would not have been protected under this reading, nor would grad students. Citizens and holders of Green Cards would have been. Do we know with any certainty who the targets were inside the U.S.? That could make considerable differences.

There's still much to be learned about the program and much may remain hidden, given the nature of intelligence work. As a personal matter, I can't see open Congressional hearings on this issue.
12.20.2005 3:57pm
steveh2 (mail):
Question on the Commander-in-Chief rationale:

If a general in charge of, say, the Third Army, ordered his soldiers to do acts in violation of FISA (or any other law enacted by Congress), would he or his soldiers have some sort of immunity on the ground that he was acting in his role as commander of part of the Army?

If the top General of the Army (I don't know the title) did the same thing, would he have some immunity on the same ground, i.e., acting in his role as the commander of the entire Army of the United States?

If not, then why would the Commander-in-Chief of the Army and Navy of the United States have any such immunity?
12.20.2005 4:05pm
corngrower:
I Will repeat. And. Type reeeeal sloooowww. Any congressman can introduce a law limiting or defining in an exact language stopping the US gov from doing those things they object to. They wont. because the battle is better for their political stock. That is all. If they defined exactly the restriction the executive branch is under, then, if, a President of a different party is in office, they would be held to the same restrictions. If they introduced that law, they would be defeated in the next election cycle. They would be out of a cushy job paid for by me.

There are lots of very thoughtful posts on why the President is well within his rights under the FISA law. So. it is a debate. Congress is the only branch of govt that writes laws. SCOTUS should not. Absent a constitutional precept, SCOTUS has no standing.

Want a solution, look to the congressional branch of govy, not the judicial.

Medis

No crimes have been committed under FISA. You may have a different opinion. You are welcome to you OPINION. lets not be in the middle of a sentencing hearing befor even a charge has been brought forth. See I do understand the constitution. I would love to Any congressman, ANY, bring impeachment charges against Bush. The would be out of office in two years along with the member that did the 2cnd.
12.20.2005 4:09pm
Medis:
PierreM,

I'm not saying the threat from KGB spies was identical--although I would suggest the potential stakes were as high or higher. Rather, I am suggesting the idea that Al Qaeda agents somehow pose a more sophisticated surveillance problem than agents of foreign powers is laughable. And the fact that Al Qaeda agents may eventually become "combatants" does not somehow render them more difficult to surveil.

And again, it is simply wrong to claim that FISA is about criminal enforcement. FISA is specifically NOT about criminal enforcement--the minimization procedures are designed to prevent law enforcement officers from using FISA as an alternative to ordinary criminal surveillance. Rather, FISA is explicitly about collecting "foreign intelligence information."

Perhaps it is worth quoting FISA's definition of "foreign intelligence information":

"'Foreign intelligence information' means— (1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against— (A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or (C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or (2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to— (A) the national defense or the security of the United States; or (B) the conduct of the foreign affairs of the United States."

So, this suggestion that somehow FISA is based on a criminal enforcement paradigm, and surveillance of agents of international terrorist organizations requires some new paradigm, is really just nonsense. FISA is about confronting exactly this sort of problem--how to authorize surveillance of suspected agents of foreign powers in order to protect against actual attacks, sabotage, and terrorism.
12.20.2005 4:12pm
Medis:
corngrower,

You say there is a "debate" about whether the Administration followed FISA. Interestingly, however, I have not seen anyone speaking for the Administration claim that FISA authorized all of this surveillance. Rather, they appear to be relying on the 2001 AUMF and the President's Article II powers for at least some of this surveillance. So, as much as some people in the blogosphere are trying to argue on their behalf that maybe it was all authorized by FISA, I would like to see someone in the Administration actually make that claim and explain their reasoning. Otherwise, I don't see how there is really a "debate".

In any event, I again just don't understand what you are proposing. Suppose someone in Congress thinks they are already violating federal law. What exactly do you think they should propose? A new law saying the same thing as FISA? What would be the point?

Finally, you keep referring to the Supreme Court, which has yet to play any role in this issue. So I'm not sure why you are attacking them--what in your opinion have they done?
12.20.2005 4:22pm
Cold Warrior:
Evan Maxwell said:


But what if the surveillances were aimed at persons in the country on tourist or student visas or those here illegally? The hijackers would not have been protected under this reading, nor would grad students. Citizens and holders of Green Cards would have been. Do we know with any certainty who the targets were inside the U.S.? That could make considerable differences.


This is a key point. Right now, we're dealing with rather murky and general news reports on the order of "NSA spied on people in the United States without getting a warrant." And it matters -- legally (both under FISA and under the constitution) and morally (a tourist, or even a student visitor who owes allegiance to a foreign power should not have the same expectation of privacy in his/her communications) -- what the status of the targets was/is.

Likewise, my comments in a previous thread pointed out that the temporal context matters, too. If we are talking about "surveillance outside of FISA" in the immediate days or weeks (or even months?) after 9/11, based on our immediate reaction to the attack on America, I think the President's Article II powers rationale is quite compelling.

If we are talking about surveillance in 2003 or even today, I'm not buying it.

Again, I think it's wrong to state a definitive opinion until we know more.

Right now, my tentative opinion, based on what I understand happened, is that the Executive has a pretty weak argument.
12.20.2005 4:38pm
Charlie (Colorado) (mail):
Medis, you left out the part of 1802 that specifies a mechanism for warrantless searches as well.

Personally, thinking about the "USA v bin Laden" case, I wonder if there isn't some precendent to think that al Qaeda is a "foreign power" under 1801(a)(1-3). If so, then the whole question is settled, no? At that point, as with Aldrich Ames, the people involved become agents of a foreign power as defined in the more restrictive sense, and the 1802 approach to intercepts without a court order applies.

Since it sounds like the Administration actually followed the 1802 procedure, it would seem very probable that's the underlying theory on which they proceeded, if only to have a fallback if the executive powers argument dfailed.
12.20.2005 4:49pm
PierreM (mail):
Medis:

A) Yes, they do pose a more sophisticated intelligence problem. The purpose of KGB spying was to gather classified information regarding US defenses and to recruit Americans to do the same. This offers a very narrow band of activities and areas of interest, all of which were to a greater or lesser extent directed towards targets 'hardened' against such activities by classification itself, compartmentalization, active intra agency or firm security probes, clearance checking, etc.

In this case your COIN ops are rather small and narrowly focused, and if you fail here, you may lose important defense or national security info, but you don't lose the whole enchilada.

Al Quaeda's attacks are directed against the whole of the society (which is not hardened), and devoted not to information gathering but to the complete destruction of the economy and polity. You have no idea where these guys are hiding. You have no idea what specific targets they are acquiring for mass attack, nor what means they intend to use against them. They have a decentralized personnel and support network, as well as new, decentralized communications technology (calling cards, prepaid cell phones, the internet). Many of these combatants will carry the national identity (forged or real) of close allies to whom you have granted unrestricted access to your country. You have no effective means of responding after an attack takes place. If you fail (as we know) thousands of innocent people will die.

Going after KGB spying was already difficult; going after al Quaeda sleepers is a nightmare.

B) The law enforcement model:

i) as far as I know, all FISA activities in the past were run through the FBI and DOJ;
ii) you have to go to a judge to get a warrant (just like regular criminal cases, even if the procedures are eased);
iii) most cases involved foreign spies or Americans acting as foreign spies. In the cases of the Americans, these cases were referred for prosecution;

So it quacks like law enforcement, paddles around the warrant pond, and has feathers like criminal prosecutions.

But it's really a rhinoceros?

I know what FISA was directed at: what I'm saying is that the application of the law-enforcement model to al Quaeda is simply asinine.
12.20.2005 4:59pm
snead16 (mail):
Cold Warrior --

You've said it best, I think.

You've joined a politically pragmatic and legally defensible argument on domestic tapping targeting people (to some degree I assume) on something passing for reasonable suspicion under the 4th Amendment. And you offered a temporal continum, maybe a more generous one than I would (but a very defensible one), to the date of the 9/11 attack. I think your position works better than FISA in the near term after an attack. Over time, transition to FISA is required.

(And, yes, my go-by is a nod to a Demon Deacon QB.)
12.20.2005 5:11pm
Apodaca:
Charlie writes:
Medis, you left out the part of 1802 that specifies a mechanism for warrantless searches as well.
He left it out because it explicitly forbids targeting US citizens for FISA surveillance without a warrant.
12.20.2005 5:37pm
PantsB (mail):
A series of poor comments:
>>>>
Anyone have a clue how many wiretaps have been used outside FISA? I 'heard' Monday that the number was less than thirty.
>>>
Where did you say this? The POTUS, NYT report and subsequent reports said 500 US persons at any given time.


>>>>
If the Judicial Branch can overturn the Executive Branch in this instince, when can the Executive Branch overturn the Judicial Branch???
>>>>
1- The Executive Branch is intended to be the weakest since it was deemed the most dangerous by the Founders.
2- When they nominate the members of the Judicial Branch.
>>>>>
The Executive branch of our government is doing its job. There is a debate on the FISA law
>>>>
No there is not. Locate one legal scholar that thinks this is covered under FISA. Bainbridge doesn't support you, the good people here at VC don't support you, the U of Chicago Law Blog does not support you, Jurist from Pitt doesn't support you, Senator Graham (Republican) noted legal scholar does not support you, Sen Specter (Republican) head of the Judicial Cmmt does not support you. It doesn't approach a reasonable argument.


>>>>
I Will repeat. And. Type reeeeal sloooowww. Any congressman can introduce a law limiting or defining in an exact language stopping the US gov from doing those things they object to.
>>>>>
Thaaaaattts whaaaaat FISA dooooessss. The President claims he can do whatever he wants because Congress authorized the use of military force in Afghanistan.
12.20.2005 5:56pm
Charlie (Colorado) (mail):
Apodaca --- except if they're "agents of a foreign power" according to the definition of "foreign power" in 1801(a)(1-3). He's asserting that these are the procedures, and by implication the only procedures, for warrantless tapping. If that was his implication, it's incorrect; if not, then I've added a useful clarification.
12.20.2005 5:57pm
Apodaca:
Charlie writes:
Apodaca --- except if they're "agents of a foreign power" according to the definition of "foreign power" in 1801(a)(1-3).
No, that's incorrect. For warrantless monitoring to be authorized, both prongs have to be met: the target is an AFP (section 1802(a)(1)(A)), and US citizens are not being targeted (subsection (a)(1)(B)).
12.20.2005 6:39pm
Neal Lang (mail):
Why didn't they use the FISA court? Everyone agrees that the standard for a warrant from FISA is very low. FISA is a secret court. FISA allows for a retroactive warrants up to 72 hours after monitoring begins.


Most probably because the Administration believes, with pretty good cause that we are in a war whose final outcome might mean the end of Western culture should we be defeated. That said, no President, in a "life and death struggle" would want to turn his prerogatives up to a life tenored judge who, unlike the President, would never be held responsibile for his bad decisions.

I believe the "9/11 Commissions", flawed as it is, could be re-read to see why lawyers and judges make poor Commanders-in-Chief. The exception being perhaps Lincoln.
12.20.2005 7:38pm
Neal Lang (mail):
Instead, the President authorized doing the surveillance without ever seeking a warrant. And he kept reauthorizing this program over the course of years without ever going to Congress. It is hard for me to see that as a reasonable response if the problem was just that the 72 hour limit was proving too cumbersome. Instead, that seems like a response to the substantive requirement of the emergency procedures: that the facts must be such that they could actually get a FISA warrant.

So, I'm not sure what you mean by these emergency procedures only applying in "special circumstances"--they apply if the facts would otherwise support a FISA warrant, but the government could not get one in time by exercising due diligence. And if in practice getting approval within 72 hours was proving too "cumbersome", then the President could have asked Congress to change the statute. And yet he didn't even ask for such an amendment.

So, frankly, this entire line of reasoning actually makes no sense as a rationale for the President's program. Indeed, if the problem was really just that 72 hours was not long enough for administrative reasons, but the President was otherwise willing to faithfully execute the law by enforcing the FISA procedures, then the President could have temporarily authorized the government to take longer than 72 hours to get the warrant if necessary, while at the same time he sought an amendment of FISA. I'm not sure that is legal either, but at least that would make sense if it was really just an issue about whwther 72 hours was long enough.

Neither the Courts (who have bent the 4th Amendment beyond all recognition), nor the Congress (who methodically gutted America's intelligence gathering capabilities for nearly 3 decades) were held acountable for the failures related to "9/11". All responsibility was laid on the Executive, whether this Administration or the last. The first rule of management - Authority and Responsibility must be balanced. Unless the FISA Court and the Congressional Oversight Committees want to step-up and take responsibility for the failures they largely contributed to, the Executive must "take" the authority necessary to balance the responsibility that "the People", the media, their political opposition, and the Congress will look to them to accept.

Never in our history has "Military tactical intelligence" been subject to whims of unaccountable judges. It is amazing that the enemies who would murder our citizens and destroy our society are accorded safe haven to plot and organize their nefarious deeds, protected by the very "civil rights" that they reject and wish to erase. If there were one example given of misuse of these "signals intelligence" collected since "9/11" (and perhaps even before, during the Clinton Administration), possibly the President's critics might have a case. If the President misuses the authority he took to secure all our "human rights" of "life, liberty, and the pursuit of happiness (property)", then "take him to the woodshed". But only in the "upside-down" - "MSM created Kafkaque World" is the terrorist innocent until proven guilty, and society's protectors, like President Bush and our great military, guilty until proven innocent. Truly amazing!
12.20.2005 8:21pm
Neal Lang (mail):
Anyone have a clue how many wiretaps have been used outside FISA? I 'heard' Monday that the number was less than thirty. If that is true, whats the fuss about activities that could be construed as legal anyway?

I don't believe any physical US "wiretaps" have been used without a proper FISA warrant. What we have here is "signals intelligence" - the only way a mobile cell-phone can be moitored properly. I also believe all these experts on using the courts to limit US "counterterrorist intelligence" capabilites will be total surprised when they find out that none of the "SIGINT" gathering took place in the US, so the FISA "huddlers" to the President's ability to defend this country don't even apply.
12.20.2005 8:46pm
Charles Chapman (mail) (www):
Re: Article II and Inherent Authority.

I have two questions. One is substantive. One is procedural. They are related. They might be preceived as being flame bait, or as "sarcasm and political point-scoring," but they are not so intended. At worst, they simply demonstrate my ignorance.

First, assuming the Article II "inherent authority" argument is accepted, could a President (and I don't mean to limit this to, or pick on, President Bush) simply order that someone be killed? Including a U.S. citizen who he concludes is an agent of a foreign power?

Secondly, who decides? Or more precisely, who has the final decision? Could the President do so without anyone other than the President determining probable cause, guilt, necessity, etc.? Would any post... termination review be possible? If someone tried to prosecute the President for murder, would any Court hear the case? If the deceased's spouse sued the President or the government for wrongful death, would any Court her the suit? Are there any limits? Would a court impose them?

I realize this appears to be over the top. Probably is. But, after reading Prof. Kerr's article, and all of the comments, I have a somewhat emotional, somewhat intellectual response of being unmoored.

I mean, why should Congress pass any legislation if the President has inherent authority to pretty much do any damn thing that he deems necessary?

In addition, Prof. Kerr stated his belief that "all of the monitoring involved in the NSA program involved international calls (and international e-mails)." I'm not sure his belief is warranted. More importantly, even if accurate, I'm not sure it is relevant. Surely, the President has "inherent authority" to monitor communicatons wholly within the U.S. soley between U.S. citizens (albeit alleged AFPs) if it will prevent another 911 or worse.
12.20.2005 8:48pm
Medis:
Charlie,

Apodaca is right. You can't use 1802 for warrantless surveillance of US persons who are suspected of being agents of foreign powers. Indeed, that is exactly the sort of situation FISA is designed to cover.

Neal,

No one in our system of government gets to "take" authority. And incidentally, are you seriously claiming that only the Executive is held responsible in the exact same post in which you hold Congress, the courts, the media, etc., responsible? Or do you think you are the first and only person to come up with those criticisms?
12.20.2005 8:52pm
Medis:
Charles,

If I may, I believe that your point is that there is no apparent limiting principle to the Article II argument ... nor, for that matter, to the 2001 AUMF argument. Indeed, it seems like a few people commenting here are perfectly happy with that result--they wouldn't mind if the President "takes" absolute authority in the name of national security.

I would find that attitude somewhat baffling, except throughout history and around the world, various people have gone or are going for the idea that The Strong Man is the ideal form of government. So, I suppose it isn't that surprising that some Americans (I assume they are Americans) would also go for that idea. Fortunately, I am reasonably optimistic they are a minority.
12.20.2005 8:59pm
Charles Chapman (mail) (www):
Medis,

I honestly wasn't trying to make a point. I was, and am, concerned, but I was asking... looking... "fishing" for a limiting principle.
12.20.2005 9:30pm
Medis:
Charles,

Sorry, I shouldn't put words in your mouth.

But I might note that a lot of us have been asking for the relevant limiting principlez for several days now. And so far, all I have seen in reply is a quote from the President that he has no intention of becoming a dictator.

Which, I might note, actually isn't a limiting principle--it is an expression of his will, and doing whatever he wills is pretty much what defines a dictator.
12.20.2005 9:44pm
Neal Lang (mail):
The Foreign Intelligence Surveillance Act (FISA) of 1978 prescribes procedures for requesting judicial authorization for electronic Surveillance and physical search of persons engaged in espionage or international terrorism against the United States on behalf of a Foreign government. The Act created the Foreign Intelligence Surveillance Court and enabled it to oversee requests for Surveillance warrants by federal police agencies (primarily the F.B.I.) against suspected Foreign intelligence agents inside the U.S. FISA is aimed at regulating the collection of "foreign intelligence" information in furtherance of U.S. counterintelligence, whether or not any laws were or will be broken. See 50 U.S.C. § 401(a)(3) (defining "counterintelligence" as information gathered and activities conducted to protect against espionage, other Intelligence activities, sabotage, or assassinations conducted by or on behalf of Foreign governments or elements thereof, Foreign organizations, or Foreign persons, or international terrorist activities). Department of Defense (DOD) guidelines state that the purpose of counterintelligence collection is to detect espionage, sabotage, terrorism, and related hostile Intelligence activities to "deter, to neutralize, or to exploit them." In short, counterintelligence and criminal prosecution are different. FISA allowed for:

* Electronic Surveillance
* Physical Searches
* Pen Registers and Trap &Trace Devices for Foreign Intelligence Purposes
* Access to certain Business Records for Foreign Intelligence Purposes

The provisions of the Act were enhanced by the USA Act of 2001, primarily to include terrorism on behalf of groups that are not specifically backed by a Foreign government. The USA Act was quickly incorporated in the more commonly known USA PATRIOT Act, also passed in 2001. The path to FISA has two branches, political and judicial. The government had long maintained that it had extensive discretion to conduct wiretapping or physical Searches in order to protect national security. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court acknowledged that the President had claimed special authority for warrantless Surveillance in national security investigations, and explicitly declined to extend its holding to cases "involving the national security." Id. at 358 n. 23. Similarly, Congress in Title III stated that "nothing in Title III shall . . . be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government." On the political front, such executive branch activities, charitably described as "some degree of domestic overreaching of Intelligence into domestic areas," had long been tolerated. Staff of House Permanent Select Comm. on Intelligence, 104th Cong., Staff Study, IC21: Intelligence Community in the 21st Century at 272 (comm. print 1996). But in the 1970s the political winds changed. The 1975-76 Church Committee hearings documented extraordinary federal government abuse of Surveillance powers. Examples included the the NSA's Operation Shamrock and Operation Minaret, CIA's Operation CHAOS, the FBI's COINTELPRO domestic harassment of dissenters and anti-war protesters that included illegal wiretapping, and the illegal burglaries of the Nixon White House "plumbers." The Church Committee Report found that covert action had been excessive, had circumvented the democratic process, and had violated the Constitution. It concluded that Congress needed to prescribe rules for Intelligence activities. On the judicial front, the Supreme Court first confronted the tension between unmonitored executive branch Surveillance and civil liberties in United States v. U.S. District Court, 407 U.S. 297 (1972), in which the United States charged defendants with conspiracy to destroy government property. Defendants sought electronic Surveillance information, held by the prosecution, that the CIA obtained during a potentially illegal wiretap, wanting to ascertain whether the government had relied on information in the indictment or the case for conviction and to suppress any tainted evidence at trial. The Attorney General admitted that a warrantless wiretap had intercepted conversations involving the defendants. Before the Supreme Court, the government defended its actions on the basis of the Constitution and the Title III national security disclaimer. The Court rejected the statutory argument, saying that "Congress . . . simply did not legislate with respect to national security surveillances." As for the constitutional argument, the Court accepted that the President had the power "to protect our Government against those who would subvert or overthrow it by unlawful means" and that this power justified electronic Surveillance of would-be subversives. Invoking the "broader spirit" of the Fourth Amendment and "the convergence of First and Fourth Amendment values" in national security wiretapping cases, however, the Court was especially wary of possible abuses of the national security power. The Court then balanced "the duty of Government to protect the domestic security, and the potential danger posed by unreasonable Surveillance to individual privacy and free expression," and found that waiving the Fourth Amendment probable cause requirement could lead the executive to "yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech." Justice Powell wrote that the inconvenience to the government is "justified in a free society to protect constitutional values." The Court emphasized that this case involved only the domestic aspects of national security: "We . . . express no opinion as to, the issues which may be involved with respect to activities of Foreign powers or their agents." It invited Congress to act: "Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for Intelligence information and the protected rights of our citizens." These two paths, political and judicial, converged in the enactment of FISA. Why is FISA dangerous? Most important, FISA powers are broad and vague, and the secrecy of FISA proceedings makes FISA powers susceptible to abuse. FISA power extends well beyond spies and terrorists. It can be used in connection with ordinary criminal investigations involving United States citizens who live in this country and who may be charged with offenses such as narcotics violations or breaches of an employer's confidentiality. 50 U.S.C. §§ 1806, 1825. For instance, electronic Surveillance under § 1801(f)(1) only reaches wire or radio communications "sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person" and a warrant would ordinarily be required. If the U.S. person is not "known," or more important, not "intentionally" targeted, it simply isn't "electronic surveillance" under § 1801(f)(1). Note also that FISA expressly contemplates that it will produce "unintentionally acquired information." § 1806(i). But while this section requires the destruction of such information, it only applies to "the contents of any radio communication," only if a warrant would have been required, and only if both the sender and intended recipients are within the United States. Given these limits, one may presume that "unintentionally acquired information" outside these lines is not destroyed. That would include all "unintentionally acquired"wire or electronic communications. How does FISA work? Under FISA, requests for counterintelligence warrants are funneled through the Justice Department, which reviews applications by the CIA as well as other agencies Before submitting them to the FISA court. 50 U.S.C. §§ 1804(a), 1822(a)(1) (1994). Each application to the FISA court must first be personally approved by the Attorney General. See 50 U.S.C. § 1804(a). The application must contain, among other things, a statement of reasons to believe that the target of the Surveillance is a Foreign power or agent of a Foreign power, specified information on the implementation of the surveillance, and a "certification" from a high-ranking executive branch official stating that the official "deems the information sought to be Foreign Intelligence information" and that the information sought "cannot reasonably be obtained by normal investigative techniques." See generally 50 U.S.C. §§ 1804(a)(7), 1805(a) (setting forth the findings necessary to support the issuance of an order authorizing surveillance). Particular facts or representations required include: statements regarding all previous applications involving the target; "detailed description of the nature of the information sought and of the type of communication or activities to be subject to the surveillance," § 1804(a)(6); the length of time Surveillance is required, § 1804(a)(10); whether physical entry into a premises is necessary, and proposed procedures to minimize the acquisition, use, and retention of information concerning nonconsenting U.S. persons. § 1804(b). On the basis of the application, a FISC judge must find probable cause that the target is a Foreign power or agent of a Foreign power, and that the facilities where the Surveillance is directed are or will be used by the target. For U.S. persons, the FISC judge must find probable cause that one of four conditions has been met: (1) the target knowingly engages in clandestine Intelligence activities on behalf of a Foreign power which "may involve" a criminal law violation; (2) the target knowingly engages in other secret Intelligence activities on behalf of a Foreign power pursuant to the direction of an Intelligence network and his activities involve or are about to involve criminal violations; (3) the target knowingly engages in sabotage or international terrorism or is preparing for such activities; or (4) the target knowingly aids or abets another who acts in one of the above ways. Courts have attached conditions to the executive's use of warrantless surveillance, including the requirement that the President or Attorney General authorize the search, the search targets a Foreign power or its agents, and the primary purpose of the search is to gather Foreign Intelligence information. See Exec. Order No. 12,333, § 2.5, 3 C.F.R. 200 (1982), reprinted in 50 U.S.C. § 401 Note (1994) (requiring approval of Attorney General for warrantless searches). From: Foreign Intelligence Surveillance Act

Lone wolf amendment

In 2004, FISA was amended to include a "lone wolf" provision. 50 U.S.C. §1801(b)(1)(C). A "lone wolf" is a non-US person who engages in or prepares for international terrorism. The provision amended the definition of "foreign power" to permit the FISA courts to issue surveillance and physical search orders without having to find a connection between the "lone wolf" and a foreign government or terrorist group.[6]

Authorization during times of war

FISA authorizes the president to authorize surveillance and physical searches without a court order after a declaration of war by Congress.[7]. The duration of such surveillance under these provisions is somewhat ambiguous. The statute says that the president may authorize such surveillance "for a period not to exceed 15 calendar days following a declaration of war by the Congress." It is unclear whether this limits the time of such surveillance or whether this limits the period of time in which the president may invoke this section. That is, whether the president may authorize indeterminately long surveillance under this section only during the fifteen days after a declaration of war. Or, whether the president may authorize only fifteen days of surveillance at any time after the declaration.

Foreign intelligence warrant exception

FISA regulates the surveillance and collection for foreign intelligence domestically. Notably, FISA does not control extra-territorial intelligence operations. Courts, including the District Court for the Southern District of New York, have adopted a "foreign intelligence exception" to ordinary requirements for warrants.[8]

6 “Lone Wolf” Amendment to the Foreign Intelligence Surveillance Act
7 50 U.S.C. §§1811 - Authorization during a time of war
8 United States v. Bin Laden, 126 F.Supp.2d 264 (S.D.N.Y. 2000)
12.20.2005 9:59pm
Neal Lang (mail):
No one in our system of government gets to "take" authority.

It happens everyday in the real World - especially in "life and death situations". However, you typically won't see it in situations involving judges and lawyers.
And incidentally, are you seriously claiming that only the Executive is held responsible in the exact same post in which you hold Congress, the courts, the media, etc., responsible? Or do you think you are the first and only person to come up with those criticisms?

I believe what I said was: "Unless the FISA Court and the Congressional Oversight Committees want to step-up and take responsibility for the failures they largely contributed to" - I held "Congress, the courts, the media, etc., responsible" ONLY for insisting that the Executive "take responsibility" for failures in areas that only the Congress and the Court have the authority to control - such as "intelligence failures" due to the lack of issuance of "FISA Warrants". For a "real life demo" please see the "9/11 Commission Report" and subsequent Report Card! Since the 1970's the courts and Congress have made intelligence gathering by the US a processed controlled by lawyers and judges, and the operators with technical qualifications to get the job done. The victims of "9/11" who had their "human rights" to life violated in the airliners, at the Pentagon, and in the WTC, could care less if a violation of Mohammed Atta's "civil rights" to plan and execute his attack free from Federal eavesdropping may have prevented this tragedy. I am not sure where the train went off the track, but I can assure that the Founders of this country never believed anyone had a "human or civil right" to do evil.

Failure of the Executive to stop another "9/11-like attack", because some FISC judge didn't think sufficient "probable cause" existed, and refused to issue a "FISA Warrant", will not affect the "life tenured" judge, but will definitely impact the dead victims, and the standing of CiC, because - "the People", the media, the political opposition, and the Congress - will blame the President, because it occurred on his watch. My point is that if the Executive is to be held responsible for the outcome, it should have ALL the authority necessary to effect that outcome. Anything less and you will have a Kafkaesque system where the party responsible lacks the appropriate authority, and those with the necessary authority lack any responsibility. It doesn't work in Business Management, anymore then it does in government or warfare.
12.20.2005 10:47pm
Neal Lang (mail):
Indeed, it seems like a few people commenting here are perfectly happy with that result--they wouldn't mind if the President "takes" absolute authority in the name of national security.

That is exactly what President Abraham Lincoln did between his inauguration in April 1861 and the return of Congress some 81 days later, including "calling forth the militia; spending unappropriated funds for military supplies; and suspending habeas corpus. Of course, had he hesitated, I doubt today would have United States to worry about, thus we would never be having this discussion!
12.20.2005 10:59pm
Medis:
I'll let Neal's words stand on their own, except I want to underscore the reference to Kafka. I think it is hilarious that Neal thinks the author of The Trial would endorse his view of executive power.
12.20.2005 11:18pm
Neal Lang (mail):
But I might note that a lot of us have been asking for the relevant limiting principlez for several days now.

I find it interesting that "civil libertarians" do not approve of "prior restraint" when comes to the "freedom of the press" to print sensitive intelligence "sources and methods" that have major negative impacts on our National Security, but then insist on the application of all "revelant limiting principles" to constrain the Command-in-Chief in exercising his most important duty of assuring the Nations Security. I think the only "relevant limiting principle" should be "no harm - no foul". I believe the President should be allowed all the latitude necessary to get the job. If in "getting the job", the President should use the intelligence for nefarious purposes, beyond the scope of defending the National Security, than he should be subjected to any all sanctions applicable to abuse of office - including impeachment, imprisonment and fines. If it should extend to treason, then a capital punishment should be imposed. So far, any evidence of Presidential "foul play" involving the "foreign intelligence" collected without warrants has not been forthcoming.
12.20.2005 11:20pm
Neal Lang (mail):
I'll let Neal's words stand on their own, except I want to underscore the reference to Kafka. I think it is hilarious that Neal thinks the author of The Trial would endorse his view of executive power.

Actually, I had more The Castle - "bureacratic nightmares" - in mind. Of course the term pretty well fits anyone insisting on a cure for a problem that doesn't exist, to wit:
Kafkaesque - Marked by surreal distortion and often a sense of impending danger: “Kafkaesque fantasies of the impassive interrogation, the false trial, the confiscated passport... haunt his innocence” (New Yorker).

The operative words being "surreal", "distortion", and "fantasies". As in "surreal""distortions" of the President motives in the warrantless collection of tactical foreign intelligence leding to "fantasies" of "impassive interrogation, the false trial, the confiscated passport". Of course, the terrorist theat is real, as we experience on 9/11, however, any "civil liberties" violations are merely Kafkaesque "wet dreams".
12.21.2005 12:00am
Medis:
Neal,

So, your view is that a world in which the President can take whatever authority he wills is not really Kafkaesque? In your view, any supposed problems with this scenario would just be a Kafkaesque "wet dream" (although I'm not sure that last phrase means what you think it means)?

Again, I think your words do a better job of refuting your views than I ever could. But for "fun", I will quote a little from The Trial.

The beginning:

"Someone must have been telling lies about Josef K., he knew he had done nothing wrong but, one morning, he was arrested."

From the middle:

"But K. should not forget that the trial would not be public, if the court deems it necessary it can be made public but there is no law that says it has to be. As a result, the accused and his defence don't have access even to the court records, and especially not to the indictment, and that means we generally don't know - or at least not precisely - what the first documents need to be about, which means that if they do contain anything of relevance to the case it's only by a lucky coincidence. If anything about the individual charges and the reasons
for them comes out clearly or can be guessed at while the accused is being questioned, then it's possible to work out and submit documents that really direct the issue and present proof, but not before.

Conditions like this, of course, place the defence in a very unfavourable and difficult position. But that is what they intend. In fact, defence is not really allowed under the law, it's only tolerated, and there is even some dispute about whether the relevant parts of the law imply even that."

And the end:

"Were there objections that had been forgotten? There must have been some. The logic cannot be refuted, but
someone who wants to live will not resist it. Where was the judge he'd never seen? Where was the high court he had never reached? He raised both hands and spread out all his fingers.

But the hands of one of the gentleman were laid on K.'s throat, while the other pushed the knife deep into his heart and twisted it there, twice. As his eyesight failed, K. saw the two gentlemen cheek by cheek, close in front of his face, watching the result. 'Like a dog!' he
said, it was as if the shame of it should outlive him."
12.21.2005 12:24am
Aaron:
Neal said:
(some interminably long post with little to no analysis or relevance to the question presented)

Fine. You want a president with no limits on his power? Move to Cuba. Me, Medis, and the Founding Fathers like it here just fine.
12.21.2005 12:31am
Neal Lang (mail):
First, assuming the Article II "inherent authority" argument is accepted, could a President (and I don't mean to limit this to, or pick on, President Bush) simply order that someone be killed? Including a U.S. citizen who he concludes is an agent of a foreign power?

Actually what do you suppose was the intention of the April 1986 US Bombing of Tripoli, etc.? The F111 "smart bombing" of Moammar Ghadafi palaces and desert "hide-a-way" camp wasn't merely to send him a message.
If someone tried to prosecute the President for murder, would any Court hear the case?

Not if the Park Service Police were in charge of the investigation. Actually it depends on when the crime was committed. If during his term as President, and if there were probably cause and sufficient evidence, then the President could be guilty of a "high crime", and subject to impeachment. If the Congress decides to "impeach", the Senate would hear the case, with Chief Justice of the Supremes presiding. If impeached, possible criminal charges could be brought against.
12.21.2005 12:46am
Neal Lang (mail):
[Federal Register page and date: 60 FR 8169; February 13, 1995]



THE WHITE HOUSE

Office of the Press Secretary

_______________________________________________________
For Immediate Release February 9, 1995


EXECUTIVE ORDER 12949

- - - - - - -
FOREIGN INTELLIGENCE PHYSICAL SEARCHES


By the authority vested in me as President by the Constitution and the laws of the United States, including sections 302 and 303 of the Foreign Intelligence Surveillance Act of 1978 ("Act") (50 U.S.C. 1801, et seq.), as amended by Public Law 103- 359, and in order to provide for the authorization of physical searches for foreign intelligence purposes as set forth in the Act, it is hereby ordered as follows:

Section 1. Pursuant to section 302(a)(1) of the Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

Sec. 2. Pursuant to section 302(b) of the Act, the Attorney General is authorized to approve applications to the Foreign Intelligence Surveillance Court under section 303 of the Act to obtain orders for physical searches for the purpose of collecting foreign intelligence information.

Sec. 3. Pursuant to section 303(a)(7) of the Act, the following officials, each of whom is employed in the area of national security or defense, is designated to make the certifications required by section 303(a)(7) of the Act in support of applications to conduct physical searches:

(a) Secretary of State;

(b) Secretary of Defense;

(c) Director of Central Intelligence;

(d) Director of the Federal Bureau of Investigation;

(e) Deputy Secretary of State;

(f) Deputy Secretary of Defense; and

(g) Deputy Director of Central Intelligence.

None of the above officials, nor anyone officially acting in that capacity, may exercise the authority to make the above certifications, unless that official has been appointed by the President, by and with the advice and consent of the Senate.


WILLIAM J. CLINTON


THE WHITE HOUSE,
February 9, 1995.
12.21.2005 12:55am
Wild Pegasus (mail) (www):
I find it interesting that "civil libertarians" do not approve of "prior restraint" when comes to the "freedom of the press" to print sensitive intelligence "sources and methods" that have major negative impacts on our National Security, but then insist on the application of all "revelant limiting principles" to constrain the Command-in-Chief in exercising his most important duty of assuring the Nations Security.

Are you saying you don't know the difference between the dangers of speech and the dangers of almost unlimited executive authority? Seriously?

Considering this president, among many others, has given me no reason to believe a word that comes out of his mouth, I find it hard to believe that "Nations Security" is at stake whenever he says it is.

- Josh
12.21.2005 2:15am
Charles Chapman (mail) (www):
First, assuming the Article II "inherent authority" argument is accepted, could a President (and I don't mean to limit this to, or pick on, President Bush) simply order that someone be killed? Including a U.S. citizen who he concludes is an agent of a foreign power?
Actually what do you suppose was the intention of the April 1986 US Bombing of Tripoli, etc.? The F111 "smart bombing" of Moammar Ghadafi palaces and desert "hide-a-way" camp wasn't merely to send him a message.
To tell you the truth, I was more interested in my second question. I have to admit, I was kind of hoping that the President didn't have "inherent .authority" to order an F111 to drop a smart bomb on a U.S. citizen walking down the street in Iowa.

If someone tried to prosecute the President for murder, would any Court hear the case?

Not if the Park Service Police were in charge of the investigation. Actually it depends on when the crime was committed. If during his term as President, and if there were probably cause and sufficient evidence, then the President could be guilty of a "high crime", and subject to impeachment. If the Congress decides to "impeach", the Senate would hear the case, with Chief Justice of the Supremes presiding. If impeached, possible criminal charges could be brought against.
Interesting. I've seen this opinion expessed before, but have never understood it. So a sitting president cannot be prosecuted for a crime unless he is impeached first?
12.21.2005 5:03am
John Lederer (mail):
It would probably help this discussion to restate the administrations argument, at least as I understand it:

(1) FISA only prohibits electornic surveillance if it is not "authorized by statute" 15 USC 1809

(2) The AUMF authorizes the president to wage war

Therefore the electronic surveillance of Al Qaeda and those linked to Al Qaeda is authorized by statute.


The place where there are arguments, it seems to me are:

(1) Is the AUMF ( a joint resolution) a statute for this purpose?

(2) If so, is an authorization to use force an authorization to use electronic surveillance.

The first objection seems weak to me. That it is a joint resolution rather than statute seems to be the result of historical precedent, and the resolution itself states that it is statutory authorization for purposes of the War Resolution Act.

The second is more debatable. I disagree with Prof. Kerr on this point. SIGINT and COMINT, the military acronyms for Signals Intelligence and Communications Intelligence are accepted parts of war. They have had important, possibly decisive, effects on campaigns,e.g. Battle of Midway (interception and decoding of Japanese radio signals allowed Nimitz to concentrate US assets against main Japanese effort), Battle of the North Atlantic (interception, HF/DF and decoding of German U-boat signals allowed detouring of convoys around U-boats and sinking of them), Chancellorsville ( Lee's orders for the next 4 days of Confederate movements, not decisive because of the ineptness of Union command).

I do not regard it as material whether the communications intercepted were by U.S. persons, or were intercepted inside or outside the US, whether an emergency authorization is possible, etc. . Those are considerations under FISA, and if there is another authorizing statute, FISA is, by its own terms, irrelevant. What is relevant is whether the actions fairly fit within the general authorization to wage war. They seem to do so.

Note also that under this analysis, a claim that Article II independently gives the President authority to wiretap is not necessary.
12.21.2005 7:47am
Defending the Indefensible:
Interesting. I've seen this opinion expessed before, but have never understood it. So a sitting president cannot be prosecuted for a crime unless he is impeached first?

I think the precedent of Jones v. Clinton suggests that the President could be prosecuted for acts committed before he took office, but might not be prosecutable for acts committed while in office until and unless he were removed from office.
12.21.2005 8:12am
Medis:
John,

There are at least two problems with that argument. One is the problem I identified above--FISA and the 2001 AUMF are not the only relevant statutes. 18 USC 2511(2)(f) also provides that Title 18 and FISA are the "exclusive means" by which such surveillance can be conducted. So, you need a third question:

(3) Did the 2001 AUMF implicitly repeal the "exclusive means" provision of 18 USC 2511(2)(f)?

But I also think there is another problem with your line of argument. O'Connor's opinion in Hamdi was a typical O'Connor opinion--it was expressly dependent on the facts of the case. In particular, O'Connor wrote:

"The AUMF authorizes the President to use 'all necessary and appropriate force' against 'nations, organizations, or persons' associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use. . . . In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of 'necessary and appropriate force,' Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here."

So, the "circumstances" mattered in Hamdi. Accordingly, I don't think you can dismiss the circumstances here--who was communicating, the form of the intercept, whether it was inside or outside the US, whether emergency authorization is possible, and so on--because Hamdi specifically depended on circumstances.

Of course, I agree that merely because FISA treats those circumstances in a certain way, does not necessarily mean that the Court would treat them in the same way. But it is worth remembering that this is an issue of statutory construction, and so two things could be noted about FISA.

First, by its express terms, FISA is intended to deal with the problem of US persons acting as foreign agents and the potential threat of actual attacks, sabotage, or terrorism. So if the Court is looking for a definition of what Congress would mean by "necessary and appropriate force" in such circumstances, FISA itself supplies such an answer.

Second, as members of Congress are noting, FISA itself was amended as part of the USA-PATRIOT Act, which was passed after the 2001 AUMF. If the Congress believed that the 2001 AUMF actually suspended FISA, that would be a rather odd thing to do. So, FISA as amended might reasonably be seen as the latest word from Congress on what is "necessary and appropriate" in the relevant circumstances.

So, I think this argument is in a lot of trouble. Unlike in Hamdi, there is another statute with actual limiting language--18 USC 2511. And also unlike in Hamdi, there is already a specific statute explaining what Congress believes is "necessary and appropriate" in these circumstances--FISA. And finally, by amending FISA in the USA-PATRIOT Act, FISA becomes the latest word--after the 2001 AUMF--from Congress on what is "necessary and appropriate" in these circumstances.

In light of all that, I would not be confident that the Court would be willing to interpret the 2001 AUMF as suspending FISA.
12.21.2005 8:35am
John Lederer (mail):
Medis,
You raise good points.

The critical provision is 18 USC 2511 2(e):

"(e) Notwithstanding any other provision of this title or section 705 or 706 of the Communications Act of 1934, it shall not be unlawful for an officer, employee, or agent of the United States in the normal course of his official duty to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as authorized by that Act. "

This is electronic surveillance as "defined" by FISA. The key question involves whether it is "authorized by that Act". Consider the following provision of FISA:


"(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or"


Does that provsion mean that if a person is "authorized by (non-FISA) statute" he is also "authorized by" FISA" by virtue of FISA's exception?

In other words, assume the existence of a fictitious statute, that says "in cases of international dog nabbing, the FBI may use wiretaps without court approval". There would be no violation of FISA because our dog nabbing statute authorizes the wiretap, and FISA says statutorily authorized wiretaps are OK. Would this be legitimate under 2511 because it then would be a wiretap authorized by FISA? If the answer is yes, then the answer to the administration's argument would also be yes.

I think that might be a close question. I have not done any research to see what "authorized by" means in other instances of its use, though it strikes me that there likely is case law.

If one's analysis gets past that, FISA becomes thoroughly irrelevant. Was FISA amended after September 11th? Does it deal with sabotage? -- who cares because the only pertinent piece of FISA is that part which says "it's OK if otherwise authorized by statute". From here on the anlysis does not turn on FISA, it turns on that authorizing statute, AUMF.

I agree with that circumstances matter in regard to Hamdi and AUMF, but I think the key question there is simply "is this a part of waging war?". Perhaps my outlook is different, but the answer seems obvious to me. Of course SIGINT is part of war, and so are these intercepts so long as the intercepts are linked to the enemy --Al Qaeda and its ilk-- in some way.
12.21.2005 9:37am
Medis:
John,

I actually think 2511(2)(f), not (e), is the most important subsection. 2511(2)(f) provides that "[the] procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted."

I don't think that is ambiguous. Regardless of how one interprets 1809, I don't think one can say that the procedures defined in an executive order citing the 2001 AUMF are "[the] procedures in . . . the Foreign Intelligence Surveillance Act of 1978." In other words, even if "as authorized" by FISA was ambiguous, the more specific reference to the "procedures in" FISA makes the limitation of 18 USC 2511(2)(f) quite clear.

Incidentally, I'm not sure I think the (2)(e) argument is close either. To think that this safe harbor provision applies to people following the executive order, one would have to conclude that 1809 "authorized" the executive order. But 1809 simply makes it a crime to conduct surveillance without statutory authorization. So, I don't see how one can interpret 1809 as providing authorization for any surveillance, simply because it does not make such surveillance a crime under FISA only on the condition that it was authorized by some other statute. Rather, the statutory authority comes from the 2001 AUMF, and while that may (or may not) be enough to satisfy 1809, that does not mean it is enough to satisfy 2511(2)(e).

Finally, I quoted at length from Hamdi because I wanted to emphasize that this is indeed a statutory interpretation problem. So, the exact question is not whether this surveillance was part of war in some general sense. Rather, the exact question is whether the precise language in the 2001 AUMF authorized this surveillance.

Specifically, Congress limited its authorization in the 2001 AUMF to "necessary and appropriate" force. And my point was that unlike in Hamdi, Congress has actually spoken directly on what sort of surveillance is "necessary and appropriate" in these circumstances--that is what they did in FISA. And they did so both before and after the 2001 AUMF (since they amended FISA in the USA-PATRIOT Act).

So, if the Court is interpreting the 2001 AUMF, I think it is likely they will not just consult their own intuition about what might be necessary and appropriate when it comes to surveillance during war. Rather, I think they will reasonably defer to Congress on this subject, and the latest word from Congress is contained in FISA as amended by the USA-PATRIOT Act.
12.21.2005 10:18am
Ziske68 (mail):
I have truly enjoyed this comment thread, and found it to be both entertaining and enlightening. However, it is not clear to me that anyone outside the NSA and perhaps the President's inner-circle know enough details to make any kind of intelligent discussion on the legality ( statutory and/or constitutional ) of what went on. I believe that you will find this whole mess to be another brilliantly laid political trap by Darth Rovius and his Neocon Sith lords. That being said, there are some potentially disturbing issues at stake here, and this debate has been long in coming, and perhaps shall wake many to the issues of liberty vs. security.
12.21.2005 10:29am
Medis:
Ziske68,

Admittedly, a lot of us are relying on the descriptions in newspaper articles and the fact that the Administration has not really contested those descriptions, nor actually argued that all of the surveillance was authorized by FISA. And that does fall short of an actual authoritative description ... although I do think it is telling that the Administration just isn't making such claims.

In fact, given what VP Cheney in particular has said, it seems to me like there may have been a deliberate decision to go outside the bounds of FISA precisely in order to set a precedent expanding Presidential power. In other words, they are not making a FISA argument precisely because they wanted to be in a position to argue that FISA could not limit them, and so deliberately went outside of the FISA limits.
12.21.2005 10:35am
Ziske68 (mail):
Medis,

Certainly this could be a power grab attempt, and it would definitely NOT be unprecedented in light of recent Presidential history. (See posts relating to WJC above). My point is only that until the actual facts are known, and it is quite possible they never shall be public, this is all a planned 'tempest in a teapot' designed to further the notion that Democrats are weak and indecisive on National Security. I think we will find, that while perhaps debatable, the actions of the executive were not prosecutable, and therefore the Democrats will lose face....Just mho.
12.21.2005 10:57am
Medis:
Ziske68,

You could be right. Still, I actually think Cheney, at least, really means it when he complains about the developments following Watergate, of which FISA is arguably a part. And I think he also really means it when he argues for the need to have The Strong Man form of government in this dangerous world of ours. And so while this might just be a political ploy, it could also be an "honest" attempt to grab power (or, in Cheney's mind, an honest attempt to "grab back" the power taken away after Watergate).
12.21.2005 11:04am
John Lederer (mail):
Medis,

Strong point, but 2511(f) regardless of the fact that other sections of FISA were modified later, predates AUMF. Under normal rules of statutory interpretation if Staute 1 says "this shall be the only way" and later enacted Statute 2 says "this is a way", Statute 2 governs.

But the later amendment of other sections is troubling. So is the 15 day hostility provision in FISA.
12.21.2005 11:14am
Medis:
John,

I agree that if the 2001 AUMF explicitly provided authority to conduct this surveillance without following FISA procedures, it would certainly trump 18 USC 2511(2)(f), whether the 2001 AUMF explicitly mentioned that provision or not.

But this is a more complicated case, because the specific question is whether the 2001 AUMF "implicitly" repealed this provision in 18 USC 2511, since the 2001 AUMF does not explicitly refer to surveillance. In other words, it is possible to read the 2001 AUMF as being consistent with both FISA and 18 USC 2511(2)(f), simply by construing "necessary and appropriate" in light of FISA and 18 USC 2511(2)(f).

And the usual rule in such cases is to allow the more specific prior statutes to continue to control without an explicit repeal in the subsequent statute--again, not necessarily "explicit" in the sense that the subsequent statute names the prior statutes, but "explicit" in the sense that the subsequent statute directly deals with the substance of the prior statutes.

Of course, as some have pointed out, such "canons of construction" are not binding in extraordinary circumstances. Still, the O'Connor opinion in Hamdi does not seem to treat this as an extraordinary circumstance. Rather, it treats the problem of interpreting the 2001 AUMF as just another statutory interpretation problem.

Anyway, to summarize, I'm certainly not sure how this would all play out. But at the least, there is a lot more going against the government in this case than was going on in Hamdi.
12.21.2005 11:57am
corngrower:
OK..President Lincoln...No Hebeus Corpus (sp) FDR locking up Asians...President Clinton, Doing the same as Bush 43, So???Why the tither now???
12.21.2005 12:05pm
Medis:
corngrower,

There was "tither" in all those other cases as well. But if your point is that all Presidents tend to argue for maximizing their own powers and minimizing the restraints on their own powers, then I agree--it is a systematic problem.

Incidentally, you might want to add something like, say, the Steel Seizures case and Watergate to your list.
12.21.2005 12:10pm
John Lederer (mail):
Medis,

The more I ponder this the more convinced I am that the key question is "are we at war" -- which of course is a political question.

If we cast the issue in military terms, "must SIGINT of an enemy force comply with wiretapping statutes" the answer is as obvious as whether Sgt. Bloss should have obtained a warrant before opening Lee's famous Order 191 discovered by union troops before the battle of Chancellorsville. The current kerfuffle is like arguing that Bush should have filed an Environmental Impact Statement before the invasion, or that close air support violates FAA regulations on altitude above an urban area.

On the other hand, if we cast the issue in purely peacetime law enforcment terms, what the administration is doing is wrong. Only the constitutional argument remains and that it seems to me, has the weakness of "who decides".


The reason why a declaration of war is desirable is because it is a clear cut statement of whether we are in condition A or condition B. The AUMF, which is a declaration of war for all save international treaty invoking purposes, should have settled that. I am not amenable to "but that was 4 years ago and things look better now" as an argument, because I don't think war making powers should ebb and flow with the ebb and flow of a war.

However, I do understand that many people do not believe that we are, or should be, at war and that makes a complicated political situation. And, in the end, this is probably a political, not a legal question.
12.21.2005 12:27pm
steveh2 (mail):
I wanted to shed more light on Charles Chapman's example, because that's what's been brewing in my head the last two days.

Would it be illegal for the president to direct troops or other federal agents to go into a house in Anytown, USA, forcibly remove American citizen John Q. Public, take him to the town square, and hang him? What if the president signed an order saying that "I have determined that John Q. Public is an agent of those responsible for the 9-11 attacks, and that Mr. Public's continued survival is a threat to the security of the United States"?

If one believes that the AUMF plus article II and/or "inherent powers" supersedes federal statutes and the limitations of the Fourth or Fifth Amendment, then the actions I described above would have to be considered legal, wouldn't they? Is there any other authority that would make the President's actions illegal?
12.21.2005 12:27pm
corngrower:
Medis

Sooo? Usurping power power is OK...If it's for the'right' reason?
12.21.2005 12:33pm
corngrower:
I do so much regrett that I forgot my own premise!!! Congress has the Constitutional authority to override the President. JUST SEEMS,,, that not a single person of the more than 500 elected representatives is willing to lose their seat to introduce a bill like that.
12.21.2005 12:44pm
Medis:
corngrower,

Who said all of that was "OK"?

John,

But the precise problem is that FISA is not part of the the ordinary law enforcement scheme--that is detailed in Title 18. Rather, by its own terms, FISA is intended to deal with the surveillance of agents of foreign powers for the purpose of gathering foreing intelligence information, which specifically includes in its definition information relating to actual attacks on the US, sabotage, and terrorism.

So, I don't think applying FISA to the NSA is like applying FAA regulations respecting civilian air traffic to the Air Force. Rather, it would be like applying the UCMJ to the armed forces--because, just like the UCMJ and the armed forces, FISA was specifically intended to regulate the NSA. Indeed, as amended by the USA-PATRIOT Act, FISA was specifically intended to regulate the NSA in just these circumstances.
12.21.2005 1:00pm
subpatre (mail):
John Lederer wrote I do understand that many people do not believe that we are, or should be, at war and that makes a complicated political situation.

That may be true, but there's also a sizable contingent who confuse their own belief --that we should not be at war-- with reality.

As of this date Congress, the President, and the Supreme Court (minimum 7-to-2 in Hamdi v Rumsfeld) believe war is Constitutionally declared.

M: ... My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom?

US Senator Joe Biden, D-Delaware: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(*) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what ... against whom we were moving, and what authority was granted to the President.
*Louis Fisher is a Senior specialist in the separation of powers with the Congressional Research Service of the Library of the Congress; author of many books on separation of powers, including Nazi Saboteurs on Trial: A Military Tribunal and American Law, Constitutional Conflicts Between Congress and the President, Presidential War Power, and Military Tribunals and Presidential Power

May 2005 Harvard Law Review carried Curtis A. Bradley and Jack L. Goldsmith's Congressional Authorization and the War on Terrorism explaining (in legalese) the war declaration, and in June's edition Ryan Goodman and Derek Jinks nibble at some fringes of authorizations, but accept the declaration of war.

It's amazing, almost sad, how rabid partisanship can lead people to the delusional denial of reality, when it's so apparent to every authority involved.
12.21.2005 1:27pm
Neal Lang (mail):
Are you saying you don't know the difference between the dangers of speech and the dangers of almost unlimited executive authority? Seriously?

Are you saying you don't know that Speech can deprive someone of their "Life, Liberty, and Pursuit of Happiness (Property)" as surely, an as "almost unlimited executive authority"?
Considering this president, among many others, has given me no reason to believe a word that comes out of his mouth, I find it hard to believe that "Nations Security" is at stake whenever he says it is.

One of the most important limits on Presidential power is the ballot. If you don't trust a President, don't vote for him. Fortunately a majority of voters didn't agree with you in 2004. Get over it!
12.21.2005 2:14pm
Neal Lang (mail):
So, your view is that a world in which the President can take whatever authority he wills is not really Kafkaesque? In your view, any supposed problems with this scenario would just be a Kafkaesque "wet dream" (although I'm not sure that last phrase means what you think it means)?

Of course, I couched my assertion regarding the Commander-in-Chief's ability to take the authority necessary only to the extent of the requirements of National Security. Have you any idea why "governments are instituted among men"? No, the Kafkaesque "wet dream" is your irrational and unsubstantiated paranoia. As for the meaning of "Kafkaesque", well you have been wrong on many other matters, now, haven't you?
Again, I think your words do a better job of refuting your views than I ever could. But for "fun", I will quote a little from The Trial.

If you don't like the meaning, argue with The American Heritage® Dictionary of the English Language not me. Of course Kafka's works were fantasies, much like your idea of how US government is suppose to function.
12.21.2005 2:30pm
Neal Lang (mail):
Fine. You want a president with no limits on his power? Move to Cuba. Me, Medis, and the Founding Fathers like it here just fine.

Again, I never said there was "no limit" to Presidential Power. Merely that as Commander-in-Chief, the President can assert whatever authority he requires in order to insure the Nation's Security. I know it is a difficult concept for some of you, however, those are the facts. Reason is that the legislative branch of our government is "deliberative and rigid", while executive is "agile and responsive". To be an effective Commander-in-Chief one needs to be "agile and responsive". History and the Supremes bare this out. Had President Lincoln not taken the authority he did after his inauguration, this Nation would have failed. Thank God Lincoln understood the duties of his office. Obviously you are clueless as to why "governments are instituted among men". Maybe a quotation on point from one of key Framers of the Constitution and authors of the Federalists Papers may give you a clue:
“The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense.” - Alexander Hamilton

I believe Hamilton had a much better handle on Presidential Power with regards to National Security than you obviously do!
12.21.2005 2:54pm
Neal Lang (mail):
To tell you the truth, I was more interested in my second question. I have to admit, I was kind of hoping that the President didn't have "inherent authority" to order an F111 to drop a smart bomb on a U.S. citizen walking down the street in Iowa.

Perhaps not drop a "smart bomb", but certainly fill a structure containing nearly 100 people, mostly innocent women and children with an inflamable chemical and ignite it with pyrotechnical ordinance murdering some 82 of them in Waco, TX. Of coure, having the authority is not quite the same as having the "right".

As I recall, the Feds dutifully obtained a court issued "search warrant" as a pretext for those murders. I am amazed how the issuance of a "search warrant" equates to a pacifier of "civil liberty" concerns for so many. As was demonstrated in the Congressional hearings on the incident, the Feds lied, under oath, on the "warrant application" in order to get the "no knock - focible entry" warrant that insured the wrongful death of so many, including Federal agents. Yet, no one was punished. No one was sanctioned. And no one had to pay the "butcher's bill", and the dead.

Personally, I would prefer less "prior restraint" and more and tougher sanction for abuse of Executive Power.
If someone tried to prosecute the President for murder, would any Court hear the case?

I am not sure other than it would be problematical. As a sitting President, he would have the power of Presidential pardon, which makes adjuication somewhat difficult. Hence impreachment first!
Interesting. I've seen this opinion expessed before, but have never understood it. So a sitting president cannot be prosecuted for a crime unless he is impeached first?

Again, he possibly could, but to what avail, unless he shed of his power to pardon through impeachment.
12.21.2005 3:14pm
corngrower:
Neal,

You have seemed to upset the apple cart by quoting the Constitution on a regular basis. You are a bad boy, and soon to be spanked.
12.21.2005 3:16pm
Neal Lang (mail):
I believe that you will find this whole mess to be another brilliantly laid political trap by Darth Rovius and his Neocon Sith lords.

"Don't you just love it when a plan comes together?
That being said, there are some potentially disturbing issues at stake here, and this debate has been long in coming, and perhaps shall wake many to the issues of liberty vs. security.

A better take on the real issues at stake might be "Dead American" vs. "Terrorist Privacy". Personally, I believe there is no contest. BTW, have you any idea why "governments are instituted among men"?
12.21.2005 3:37pm
Neal Lang (mail):
In other words, they are not making a FISA argument precisely because they wanted to be in a position to argue that FISA could not limit them, and so deliberately went outside of the FISA limits.

Then how do you explain this?
EXECUTIVE ORDER 12949
FOREIGN INTELLIGENCE PHYSICAL SEARCHES
By the authority vested in me as President by the Constitution and the laws of the United States, including sections 302 and 303 of the Foreign Intelligence Surveillance Act of 1978 ("Act") (50 U.S.C. 1801, et seq.), as amended by Public Law 103- 359, and in order to provide for the authorization of physical searches for foreign intelligence purposes as set forth in the Act, it is hereby ordered as follows:

Section 1. Pursuant to section 302(a)(1) of the Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

WILLIAM J. CLINTON

THE WHITE HOUSE,
February 9, 1995.

Where's the angst?
12.21.2005 3:46pm
corngrower:
Stop quoting the actual acts of President Clinton or you will most likely be banned for speaking of facts.

Geee! I do hate it when a plan comes together.

BTW The signer of the above document is 'the smartest man ever, and, has a degree in law,and passed the bar...OOPS, guess that ability to practice law was revoked for some reason. Not sure why the Bar did that?
12.21.2005 4:03pm
Neal Lang (mail):
You have seemed to upset the apple cart by quoting the Constitution on a regular basis. You are a bad boy, and soon to be spanked.

Quoting the Constitution and the Founding Fathers is almost a bad as quoting Scripture.
Stop quoting the actual acts of President Clinton or you will most likely be banned for speaking of facts.

Facts are terrible things!
12.21.2005 6:22pm
Neal Lang (mail):
That may be true, but there's also a sizable contingent who confuse their own belief --that we should not be at war-- with reality.

Once accepted, the reality of the War on Terror makes this entire phoney "civil liberties" brouhaha appear to be exactly what it is - a partisan ploy to wound the President and his efforts to protect the truly important rights of the American people. When we start stacking up "the People's Rights", the most important are the "unalienable" human rights of "Life, Liberty, and the Pursuit of Happiness (Property)", the security of which is why "goverments are instituted among men". These are the very rights the President's "proactive strategy" against terrorists is designed to protect by disrupting terrorist networks and "sleeper cells" in our towns and cities. When the other "civil rights" are added, the so-called "right of privacy", which is suppose to be "license" to permit resident terrorists un-impaired "CCC" ("Command, Control, and Communications") for their nefarious deeds if one end of the ecom is from within the US and includes a "so-called" US Person. Requiring a court ordered warrant to read and disrupt these communications is rather low on the rights "priority list" in my book. Exactly what makes any communications between known al Qaeda resources overseas and any US resident sacrosanct totally alludes me. First, the plain language of the 4th Amendment does not even address speech or communications (not even intransit correspondnce such as mail), to wit:
Article the sixth [Amendment IV]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


It was obvious that the President would be held responsible for any failures, on his watch, to protect the "public safety". This concept of Presidential responsibility can be seen in Tucker's Blackstone, to wit:

The conduct of the first magistrate of a nation is as frequently liable to censure for his omissions, as for his acts. Whatever, therefore, is left undone, which the public safety may require to have been done, is chargeable upon the neglect of the president, exclusively: whatever may be done amiss is likewise chargeable upon him, in the first instance, as the author and propounder of the measure: although it should afterwards receive the approbation and consent of the senate. Responsibility, then, pursues him in every situation: whether active or passive; sleeping, or awake. From: Tucker's Blackstone - BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE, TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA. IN FIVE VOLUMES. - Volume 1 — Appendix Note D [Section 14 - Executive Powers]

It is just as obvious that the framers expected the President in the time of war, invasion, or insurrection to take the initative by exercising whatever authority might be necessary to discharge his prime duty of securing the "public safety". It is also plain that should the President abuse his authority (i.e. "whatever may be done amiss"), that he should be held accountable (i.e. "is likewise chargeable upon him") afterwards.

It was for this reason that Bush Administration was made to accept the "lion's share" of the blame for "9/11". That facts that Congress gutted and emasculated the US "intelligence apparatus", or that the prior Administration "built walls" between the police and the intelligence gathering functions, was no excuse for the tragic events that occurred on the President Bush's watch.

Unfortunately, when Executive Branch abuses occur in the name of "public safety", as what happened in Waco, TX in 1993 on President Clinton's watch, the requisite accountability, with sanctions to fit the crime were not meted out. In fact it appeared a successful cover-up was perpetrated, with evidence destroyed and "stonewalling". In my estimation, this is attributed to the lack of Mainstream Media interest in demanding accountability from the Clinton Administration.

I submit that the best system would be to not "handcuff" the President from properly protecting the "public safety" by limiting "arbitary prior restraint", but also insuring accountability, with commensurate sanctions for any willful abuse or violation of trust.
12.21.2005 9:32pm
corngrower:
Neal

Seems that quoting real facts and real examples of 'The Clinton Administration' has dried up the parsing of arcane leagleese, and centered the debate and what the real issues are. No one cares to debate the issues, just parse the words of some bill. Yey, shipping a Cuban boy back to Cuba? Why? Legal authority? Torching women and children in Waco? Murduring a mother holding an infant in her arms, while standing at the front door of her house? Yeh! Great! Who is on a power grab? You all got my examples. I'll give you one more. 3000+ Americans murdered by some nebulus non organization. BTW The Constitution charges the federal government with protecting you, and me from being killed by foreign invaders. Not killing a mother holding her infant. Not torching women and children for no reason. not shipping a kid back to a country that has not left the 50's and imprisons thousands for not toeing the line. If in fact y'all think we should not be involved in foreign affairs, fine with me. But, that would mean all foreign aide. Hell, Germany don't like us. We will just remove our military bases from Germany. 'course the shrill squeal you hear would be from the left accusing the US of acting unilaterly, (not to mention the huge influx of US $'s to Germany that would evoporate). Please, Legal eagles stop parsing the word and focus on the intent.
12.22.2005 9:47am
Ditty:
OK, Neal Lang got it right when he said:
I don't believe any physical US "wiretaps" have been used without a proper FISA warrant. What we have here is "signals intelligence" - the only way a mobile cell-phone can be moitored properly. I also believe all these experts on using the courts to limit US "counterterrorist intelligence" capabilites will be total surprised when they find out that none of the "SIGINT" gathering took place in the US, so the FISA "huddlers" to the President's ability to defend this country don't even apply.


Now, I have no specific knowledge of the program being discussed, other than what I have read in the papers. However, I can make a couple of 'informed guesses', since at one time I was in the SIGINT business.

First, and perhaps most importantly, I don't believe these interceptions (don't call them wiretaps) were made on US soil. To my thinking, they were made by a partner of the US. One hypothetical (gleaned from knowledge gained by reading The Puzzle Palace, so I'm not giving anything away here) would be that the President tasks the NSA, who then hands it off to the GCHQ (the UK's version of the NSA). There is no restriction on the GCHQ on monitoring US Persons, to the best of my knowledge. The results are then given back to the NSA, sidestepping the need to follow FISA.

Another hypothetical is that this is a monitoring of known or suspected foreign terrorists on foreign soil. I don't think FISA would require that we get a warrant to monitor if the foreign target contacts a person in the United States, as that is incidental to the target. My reading of it tells me that you can't intercept without a warrant where there is a 'substantial likelyhood' of intercepting the communications of a 'United States Person'. But who determines that?

Another unknown is whether actual 'United States Persons', as defined in FISA, are being intercepted. As was pointed out in previous comments, none of the 9/11 hijackers would have fallen under the definition of a 'United States Person', thus a warrant to intercept their communications wouldn't have been necessary under FISA. I wonder if this program is something similar?

I think it is particularly unfortunate that the NYT decided to publish this information without knowing enough specifics to decide whether this was in fact a violation of FISA. As it stands, there is no way to know.

Those of us lucky enough to be alive in 30 or 40 years will probably get enough details to decide.
12.22.2005 10:38am
Medis:
Ditty,

But if the Administration is only conducting surveillance outside the scope of FISA on FISA's own terms, why aren't they making that claim? Why all these claims that the 2001 AUMF and the President's Article II power give him the authority to order this surveillance despite FISA?

Again, I have only seen people in the blogopshere claim that all the surveillance might be legal under FISA. Those in a position to know aren't making that claim.
12.22.2005 12:05pm
Ditty:
Medis.:
Ditty,

But if the Administration is only conducting surveillance outside the scope of FISA on FISA's own terms, why aren't they making that claim? Why all these claims that the 2001 AUMF and the President's Article II power give him the authority to order this surveillance despite FISA?

Again, I have only seen people in the blogopshere claim that all the surveillance might be legal under FISA. Those in a position to know aren't making that claim.



Well, I'm not really able to say one way or the other.

I can think of a couple reasons the administration might claim coverage under the 2001 AUMF/Article II powers.

First, if the program is indeed limited to non-'United States Persons', revealing that fact publicly warns the very targets of the program that they are possibly being monitored. That would be a bad thing, from the perspective of the administration.

Second, if it is indeed monitoring overseas calls, from an overseas location, of 'United States Persons', even by a separate entity like GCHQ (who obviously are not bound by FISA, and share information with the NSA (see Bamford)), revealing that information is also likely to alert those being targeted.

So the safest thing the administration can do, to preserve the stream of intelligence, is to just claim they have the authority to do it, end of story. Going into specifics can give away too much information.

There is a history of incidents where the knowledge that eavesdropping has occured has caused the targets to change their behavior. The revelation that we were able to listen to, and track the location of Osama Bin Laden via his portable phone being one of the most recent. The British discovering, through their decryption of Naval Enigma signals, that the Germans had broken their BAMS code (used to route convoys worldwide) is a famous example from WWII. They subsequently changed it to a more secure code, cutting the Germans off from that information source.

The history of signals intelligence is full of similar examples.

I'm not saying that this is the reason for the administration to lean on the AUMF/Art. II argument, but it certainly is plausible, given what I know about the history of signals intelligence.
12.22.2005 4:18pm
Wild Pegasus (mail) (www):
Are you saying you don't know the difference between the dangers of speech and the dangers of almost unlimited executive authority? Seriously?

Are you saying you don't know that Speech can deprive someone of their "Life, Liberty, and Pursuit of Happiness (Property)" as surely, an as "almost unlimited executive authority"?


I honestly hope you don't believe that someone can be deprived by of their liberty as easily by private speech as by unlimited executive authority. I can't imagine anyone could honestly believe that.

Considering this president, among many others, has given me no reason to believe a word that comes out of his mouth, I find it hard to believe that "Nations Security" is at stake whenever he says it is.

One of the most important limits on Presidential power is the ballot.


Voting is worthless. You have a better chance of being attacked by flesh-eating bacteria on the way to the polls than having your vote do anything.

- Josh
12.22.2005 5:45pm
corngrower:
And Josh, with your 'beliefs' I encourage you to not vote. Please!
12.23.2005 9:45am
Neal Lang (mail):
First, if the program is indeed limited to non-'United States Persons', revealing that fact publicly warns the very targets of the program that they are possibly being monitored. That would be a bad thing, from the perspective of the administration.

What about from the "perspective of 'the People' who would be murdered in the next massive terrorist attack" should such "warning" be given to those "sleeper cells" in the US working on such? For example, the NY Transit strike was merely an inconvenience when compared to losing the Brooklyn Bridge during rush hour.
12.23.2005 12:21pm
Neal Lang (mail):
I honestly hope you don't believe that someone can be deprived by of their liberty as easily by private speech as by unlimited executive authority. I can't imagine anyone could honestly believe that.

It happens everyday in the case of perjury. For an example, please see citizen William Clinton, rapist. That is unless you believe, as most Democrats seem to, that lying under oath in a civil sexual abse trial is part of some sort of weird "unlimited executive authority"!
12.23.2005 12:28pm
Neal Lang (mail):
Voting is worthless. You have a better chance of being attacked by flesh-eating bacteria on the way to the polls than having your vote do anything.

Your concept of the "republic" seems to reflect the mindset of those living in the Deep South Slave States, whose unconstitutional secession started a Civil War that lead to the death of over 600,000 Americans.
12.23.2005 12:32pm
Neal Lang (mail):
Yey, shipping a Cuban boy back to Cuba? Why? Legal authority? Torching women and children in Waco? Murduring a mother holding an infant in her arms, while standing at the front door of her house? Yeh! Great! Who is on a power grab? You all got my examples. I'll give you one more. 3000+ Americans murdered by some nebulus non organization. BTW The Constitution charges the federal government with protecting you, and me from being killed by foreign invaders

It is totally amazing how these "so-called civil libertarians" can't find the time to complain about Federal abuse that has cause REAL harm. Elián González's "liberty" didn't mean anything. At Waco it was the innocent victims' fault. The unarmed Vicki Weaver, babe in arms, was such a threat to the concealed and well-armed rogue Federal snipers that she had to die. Apparently changing the "rules of engagement" to "shoot first and ask questions later" does not have import of adjusting the "electronic surveillance rules" to allow obtaining timely and perishable vital "war related" "foreign intelligence" on murderous terrorists in the US. This despite the FACT that the one case lead directly an innocent's death, while there is NO evidence of any REAL harm caused by the other. This isn't even "moral equivalence"! This is insanity!

Perhaps it demostrates how little they think of the "Right to Life". Of course, without life, Liberty and Property Rights are quite moot, and "privacy" has no meaning at all in the grave. Possibly this explains why, in their mind, the mystical "right of privacy" ALWAYS trumps the "right to life" - whether it be on the matter of abortion of the innocent unborn, or the facilitating the murder of "the People" by hindering the Commander-in-Chief in his efforts to carry out his PRIMARY duty to "the People", which is to protect the "public safety". Amazing!
12.23.2005 1:11pm
Neal Lang (mail):
If the Judicial Branch can overturn the Executive Branch in this instince, when can the Executive Branch overturn the Judicial Branch???

President Andrew Jackson (a former Tennessee Supreme Court Justice) thought was anytime it made a decision with which he didn't agree.

In the Worcester v. Georgia (31 U.S. 515 - 1832) Case, the United States Supreme Court under Chief Justice John Marshall held that Cherokee Indians were entitled to federal protection from the actions of state governments. This reversed their 1831 decision Cherokee Nation v. Georgia, which really upset Jackson.

In reaction to this decision, President Jackson has often been quoted as defying the Supreme Court with the words: "John Marshall has made his decision; now let him enforce it!". As the Supremes do not have the requisite "executive" authority, enforcing any of its decisions to which the President objects might be impossible unless the President is committed to the rule of law.
12.23.2005 1:33pm