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Link to Radio Show on NSA Surveillance:
The audio of my discussion earlier today with Erwin Chemerinsky on the legality of the NSA domestic surveillance program is available here. The show runs 30 minutes; RealPlayer is required. I say "um" way too many times, but then I always do that.
Bobbie:
You might want to look at this.

Your arguments regarding the constitutionality of Bush’s acts, with your incessant use of hedging words, are still unpersuasive.
12.20.2005 11:34pm
David Sucher (mail) (www):
I listened to the show and I found it quite interesting. But I was both puzzled and also unpersuaded that (Kerr's view as I grasped it) that this is such a gray issue and that in some possible factual circumstances, with some possible legal interpretations, that the President is justified.

At the emotional level I don't think that any of us like the idea of looking into the gaping maw of a President run wild; the consequences are indeed frightening; we are reluctant to acknowledge that we have an Executive who believes he is all-powerful and with no bounds. But my sense is that is what we are seeing. Hopefully he will pull back gracefully and decently. (Yes I am optimist.)

But it will not help the nation for legal scholars to try to cobble together rationales which might support him. That's what I think heard from Mr. Kerr. I hope I mis-heard.
12.21.2005 12:15am
Shawn (mail):
This really comes more down to trust. Do you trust the Bush Administration or not? If you do, you likely believe that our national security is threatened enough to accept the Administration's rationale. If you don't, you really couldn't give a rat's ass what the Administration says since you most likely believe every policy and its related actions is misguided and/or tainted by some degree of conspiratorial, society-degrading intention.
12.21.2005 12:21am
PierreM (mail):
The President has plenary powers as CINC to chase after combatants 'by all means necessary'. That's essentially what the admin is arguing in a nutshell.

So Shawn is right: the limits on his action are a matter of trust, i.e. it is a political matter, not a legal one. Contrary to David, the lack of legal limit does not imply unlimited power, only that the power is checked by the Congress (which pays for it), and by the people. You know, those guys from whom sovereignty is derived (though you'd never find that out from a con law class).

Sometimes to understand the constitution you have to stop thinking like a lawyer and start thinking like a citizen, which means taking responsibility for and participating in the political process, rather than being a boneless chicken victim waiting for a judicial knight to ride up in shining armor.
12.21.2005 12:44am
OrinKerr:
David, Bobbi,

I'm interested in knowing why you're unpersuaded by my analysis. Can you explain why you disagree?
12.21.2005 12:49am
David Sucher (mail) (www):
OK. With that kind of challenge I will go back and listen again.
12.21.2005 12:52am
AF:
I too was puzzled by Kerr's assertion that depending on the precise nature of the surveillance it might be legal under FISA. Given that not even the administration is asserting that it complied with FISA, that seems very unlikely.

Another thing that puzzled me was Kerr's response to the hypothetical posed in Kristol's and Schmitt's Waszhington Post op-ed. Kerr agreed with them that there would be no probable cause to surveil the communications of people whose phone numbers were found on the cell phone of a known Al Qaeda agent. Is that really so clear? I would think that if the Al Qaeda agent was known to use the cell phone primarily for Al Qaeda-related activities and if there were relatively few numbers on the phone, then there may well be probable cause. It's a totality of the circumstances test, is it not?

As Chemerinsky pointed out -- and I'm not saying I agree with everything he said -- it's one thing to argue about the definition of probable cause, another to say there is no probable cause requirement. Kristol and Schmitt's -- and Bush's -- argument would be much more persuasive if the solution they proposed was not the total lack of oversight of the executive.
12.21.2005 1:05am
Cold Warrior:
Interesting.

The more I look at this -- and the more the chronology of the "surveillance outside FISA" program becomes clear -- the more I think that the Bush Administration's action were prompted by the FISA Court's "first ever" rejection of a FISA warrant application back in 2001.

Here's the Administration's position on appeal:

http://www.fas.org/irp/agency/doj/fisa/092502sup.html

If I'm right, I find this quite disturbing. I was ready to give the President the benefit of the doubt when (as I believed) the issue involved surveillance in the immediate post-9/11 period. To reiterate my point in earlier threads, the nation was clearly under attack on 9/11, the attacks revealed sophisticated planning and support networks, and a state actor (the Taliban government in Afghanistan) was clearly a sponsor of the attacks. Therefore, I will continue to defend any immediate post-9/11 "surveillance outside FISA" [let me coin an acronym: SOFISA] as an appropriate exercise of the President's Commander-in-chief powers.

My suspicion now is that the chronology went something like this:

-- some immediate SOFISA activity in the days and weeks following 9/11

-- After the PATRIOT Act, DOJ convinces the President to use the FISA process

-- Early post-PATRIOT FISA warrant requests initiating with FBI start to worry DOJ officials because they are based on very vague suspicions. The result is long and (from the White House's perspective) frustrating delays in the preparation of FISA warrant requests. This is exacerbated by the FISA Court's unwillingness to relax its standards. I'm not sure where the "first FISA Court rejection" case fits within this chronology; whether it was before or after PATRIOT, it almost certainly fed the White House's frustration with the annoyingly bureaucratic FISA process.

-- The White House decides to ignore the FISA process when dealing with what it considers to be "emergency" measures: warrant applications that would not pass muster with the FISA Court, but involving individuals suspected of involvement with Al Qaeda's terrorist plans.

In short: the White House didn't like the FISA process, and decided to do an end run around it.

Of course, this is still speculation. But I think it makes sense. And I do find it much more disturbing than the assumptions I worked from in previous threads: i.e., that we are talking about SOFISAs conducted while the WTC Towers continued to smolder.
12.21.2005 1:38am
Cold Warrior:
I checked the chronology: the "first-ever FISA Court refusal to issue a warrant" was apparently issued on May 17, 2002. It was made public in a Washington Post story in August 2002.

Now I'd like to know precisely when the "SOFISA" activities were authorized, and by whom ...
12.21.2005 1:51am
18 USC 1030 (mail):
I understand, I think, where Professor Kerr is coming from. If one takes the time to read the details of statute of and relating to electronic evidence, it will become apparent that much of the issue as to privacy is based on the technology used. The USA PATRIOT ACT, with its faults did do a lot of positive in the way of trying to equal the statutes related to different technologies; however, as Prof. Kerr pointed out there still exist differences. It depends whether or not the transmission took place over a satelite or over a traditional land line- this is much the same as the pre-PATRIOT ACT (now somewhat rectified, to a degree) issue of whether or not a transmission occured over a wire (telephone) or cable (some broadband type traffic). Whether or not we want to say this is good or bad is of no matter; in considering whether or not the president violated the law and ought to be impeached, we have no choice but to determine the issue based on the merits and the statute as written. If the statute allows interception via satelite and not over wire, and interceptions occured over satelites; then the president did not violate the law. Is it good that he did it? NO. Should the law be changed to stop this? Probably. But, that cannot be used as evidence to claim the president violated the law. The facts of the particular searches are of the utmost importance to determine whether or not the law was violated. Until it is shown that an actual law was violated, one should not assume the president violated the law, one may argue that he acted wronglly, but if one is to argue the president violated statute, the facts must be indicitive of that. Of course, if one were to argue a broad violation of the 4th amendment, that would not require the same detail of facts, due to the broad reach of the 4th amendment.

Another important issue is expectation of privacy. Erwin Chemerinsky spoke ever so eloquently discussing expectation of privacy; however, he missed a word in there... reasonable expectation of privacy. Though one may have an expectation of privacy,that does not per se establish a reasonable expectation of privacy. Also, as Prof. Kerr has written (and I will not attempt to speak on it myself) there is a difference between a reasonable expectation of privacy and the expectation of privacy of the reasonable person.

These are all issues one must consider prior to determining whether or not there was a violation of law. Though, I do believe it reaonably certain that some illegal activity occured. My biggest issue is the no warrant thing. Under FISA the warrant can be requested 72 hours after the wiretap, why not seek the warrant then? What needed to be hidden so badly? Why did this need to be so secret? Is there something more sinister going on?
12.21.2005 1:58am
OrinKerr:
AF writes:

"I would think that if the Al Qaeda agent was known to use the cell phone primarily for Al Qaeda-related activities and if there were relatively few numbers on the phone, then there may well be probable cause."

I totally agree. But how likely is that? Assuming terrorists don't have a sticker on the phone saying "for official al Qaeda use only," you're not likely to know that.
12.21.2005 2:01am
David Sucher (mail) (www):
OK. I went back and listened again. Of course I won't waste anyone's time disagreeing with you on the law of electronic surveillance, FISA, Fourth Amendment etc.

I will take your question literally, as a matter of advocacy: "Why was I, listening to the show, not persuaded?"

Some general impressions:

The first thing is that — and it is interesting how one picks up things on a re-hearing — I wasn't exactly sure where you were coming from. So I was un-persuaded in the sense that I didn't get a clear sense of your perspective. Nor did I get a sense of the exact legal issues, which confirmed my sense that parsing the law finely is not the heart of the matter. (Bush has defined the matter as political with his pugnacious stance that "I decide," which is why I don't think such matters as the exact source of the data are ultimately significant. The President has made himself the issue, not the law or the facts.)

But I did pick up that you were un-decided in your own mind about whether a law had been broken. And that your equivocation was based lack of sufficient knowledge..."Need more facts"..."Exact source of data"..."How broadly should the authorization be construed?" I thought you were "too lawyerly." Yet you didn't set up the legal issue by explaining why the exact source of the data etc etc was so critical.

I had the sense at the outset — as I did with a recent post of Stuart Buck's — that maybe you were trying to find some way of defending the President but you were having a tough time -- thus the refrain of "more facts."

You didn't persuade me that a narrow determination of whether the President had violated a _statute_ was really the basic issue. And I was curious that a Congressional _resolution_ (authorizing Presidential power in the wake of 9-11) could trump a _statute._

Chemerinsky really trumped you when he said very simply (and I am paraphrasing) that "The 4th Amendment contains no exemption for GW Bush." You didn't seem to grapple with the big Constitutional &political issues, even equivocally.

And you really lost me when you said (paraphrasing again) that "The JD Office is very meticulous about bringing cases to the FISA Court." And I thought "Hey! What's wrong with that?"

But you came across a serious and likeable fellow and overall it was a very interesting discussion -- even the second time. Truly.
12.21.2005 2:08am
Bobbie:
First, I’m not persuaded because you’re not persuaded. Both in your post and on the air, when you’re engaging potential arguments regarding the constitutionality of the secret NSA program, the best you can come up with is that the administration’s arguments are “plausible.” That’s not much of a ringing endorsement.

Second, I’m not persuaded by your argument regarding the border exception because there does seem to be an intuitive material difference between data storage and the data itself. (See here.) Likewise, your argument proves too much: it would bless as constitutional a program that allowed the government to monitor, for any reason at all, all international e-mails, phone calls, and overseas electronic transactions that originate in the United States. This strikes me as wrong in ways that monitoring people or packages crossing the border doesn't. You also never responded to Chemerinsky’s argument regarding the reasonable expectation of privacy in situations in which the Court has dealt with in the past and what is alleged to have happened now. Perhaps dicta in Ramsey supports your position, but it’s clear that the Court, writing in 1977, didn’t have in mind electronic data transfers.

Third, I’m not persuaded by your argument regarding the national security exception. You base your conclusion that it’s “plausible” there is an exception because, despite the fact that the Court has never held that such an exception exists, members of a former Court left the question “open.” If the best you can do is argue that the Supreme Court hasn’t expressly rejected your position, you’re fighting an uphill battle. Stating that this is a “plausible” argument is wishful thinking.
12.21.2005 2:10am
Cold Warrior:
AF said:


"I would think that if the Al Qaeda agent was known to use the cell phone primarily for Al Qaeda-related activities and if there were relatively few numbers on the phone, then there may well be probable cause."


And Orin Kerr replied:


I totally agree. But how likely is that? Assuming terrorists don't have a sticker on the phone saying "for official al Qaeda use only," you're not likely to know that.


I've seen similar scenarios play out in real life, and it really isn't that difficult to separate the wheat from the chaff. Remember, in the hypothetical we have the cell phone of a known al Qaeda terrorist. Agents first comb through the dialed numbers to see if there's any persons of interest. Then a bit of investigation of other contacts is done. This isn't too hard. People — even recent immigrants, students, etc. — leave trails that are quite easy to analyze. You wouldn't want to immediately try to intercept the conversations of everyone whose name appears in the cellphone "dialed" list; you'd first want to find the potentially interesting ones and do a bit of investigation.

For an interesting theory on why the Bush Administration may have been hesitant to go before the FISA Court in certain cases, courtesy of a generally credible loudmouth, see:

http://noquarter.typepad.com/my_weblog/



The real story behind the unauthorized wiretaps authorized by President Bush probably concerns the source of the info. It appears the most likely explanation is that the Bush Administration did not want to have to tell a Federal judge that they were using information obtained from interrogations that violated the spirit and the letter of the Geneva Conventions.

12.21.2005 2:40am
OrinKerr:
David, Bobbie,

Ah, I think I get it. In response, please understand that I didn't go on the show to persuade anyone of anything. I was just trying to explain the law, not try to "sell" a side. So if you don't think I did a very good job of "selling" a "side," I can only say that I am relieved.

One oddity in the show that may be worth mentioning is that the host was wrongly informed that I thought the monitoring was legal. So his first question asked me why I thought the monitoring was legal, and I was taken aback a bit. As I told the people at the show when they contacted me, my best sense is that the monitoring is probably illegal, but my conclusion is tentative because we don't know the details. That misunderstanding may explain some of the confusion here.

Finally, Bobbi, can you cite a case for the view that data and data storage should be treated differently?
12.21.2005 2:43am
Cold Warrior:

Finally, Bobbi, can you cite a case for the view that data and data storage should be treated differently?

Well, I'm not Bobbi, but I think that the similarities in the treatment of "data" and "data storage" outweigh the differences.

The best example: treatment of child pornography under customs law.
12.21.2005 2:59am
Bobbie (mail):
Professor –

I understand that you didn’t intend to be an advocate, but you did come to a conclusion, didn’t you? You did say the program was “probably constitutional.” Ostensibly, your legal arguments were intended to support that conclusion. They don’t. If you intended merely to cite possible legal arguments that the Bush Administration might make, then job well done. But if you intended to analyze the likely legality of the program, then you need to respond to your critics. If I write an objective memo for my boss attempting to explain the law, if she disagrees with my analysis and my conclusion, I can’t respond that I wasn’t trying to persuade her anyway.

I cannot cite a case for the view that data and data storage should be treated separately. If you say there’s no case, then you know better than I. But I don’t need a case. I stand by my response that, at least in this context, it defies common sense to treat people and e-mails in the same way. Among other reasons, searches of tangible objects require a lot more time and effort than searches of electronic data; that effort is at least some guarantee against widespread frivolous searching. Or perhaps there’s a more nuanced distinction to be drawn. I have a hard time accepting that any electronic communication that crosses our international border is open game for the government to look at for any reason. Also, as noted above, the difference between data and data storage might play into the reasonable expectation of privacy analysis.

(And, not that it matters, but you've referred to me as "Bobbi" twice. I need every vowel I can get.)
12.21.2005 3:40am
18 USC 1030 (mail):
Prof. Kerr,

Perhaps I misunderstand the question but it seems to me that statute seperates data and data storage. There is a difference between data intercepted via transmission and data stored on, for example a hard drive. I must have misunderstood the question as something this simple you would know...

Also, I'd like to say I appreciated your take in order to demonstrate arguments rather than come out guns blazing as Chemerinsky did.
12.21.2005 4:08am
ros:
This confused Aussie is following this latest US debate with alarm. Watched your Senator Feingold on the Jim Lehrer Show and concluded that his end target is the impeachment of President Bush.

I try to understand how you guys see the world and your own society and polity. And to understand which matters are so important to your understanding of how the United States of America is the great democracy that you believe it to be. But what I am seeing now is business as usual in the USA. That is, that MAYBE the President has gone too far, as have many of his predecessors, including Lincoln.

I was one who shuddered as you took to each other with vigour after Katrina, but this is far worse. At a time of great peril for your nation, and therefore the rest of the world, political forces in your country are looking to eviscerate your nation by impeaching your President. At the same time fellows who should be giving him the benefit of the doubt and their support, particularly as it is very unclear what has happened and why, look only to their own political future.

I have always dismissed those who claim that the era of the USA is over and it is all downhill now, but?

I think some perspective is needed. In a different but equally proper place it may well be an act that was without question legal. While you must respect your law (and your God Constitution) I struggle to see how you distinguish it from morality. It seems to me that your President certainly has made the right moral choices.

I repeat a quote that I was led to by a US blogger (can’t recall which). From Syrian author Ammar Abdulhamid.

“While neocons and liberals, or however one categorizes one at this stage, argue over wagging dogs and other fine assortments of beasts and monsters, and while the debate over the merits of real politick vs. salvation politics rages on, there are parts of the world that are going to hell in a hand-basket, reflecting the new cold war climate created by this internal debate. It looks as if America is having a nice cold civil war by proxy over its own identity and future.”

You have a President that has determined that the rest of the world does exist and that your nation has responsibilities for that world as well as the privileges that you may endow yourselves with because of your wealth and power. He can’t act as he should while he is under constant attack from the vast numbers of your political entrepreneurs constantly looking for the chance to put themselves up there, and truth be dammed.

This imbroglio leaves me seeing an inward looking self-obsessive USA. At times a nation that is a solipsist. Though your attacks on yourself excite our left anti-American crowd to dribbling glee, (what the real nasties make of this is too horrible to imagine) they don’t deserve to be pleased in this way.

We have had our own fuss about “spying” on Australian citizens and “border” arguments in relation to intelligence. We didn’t have a body politic that would sacrifice all over the issue however, or maybe it was that the populace wouldn’t wear it.

Thanks cold warrior it has been really bothering me why the majority of surveillances were done with a warrant from the FISC with just some requiring a different approach.
12.21.2005 6:54am
David Sucher (mail) (www):
Orin,
Now that I have slept on it, and read other comments, I guess what really "unpersuaded" me is that you didn't clearly explain the supposed legal issue — "How broadly should the authorization be construed?"

Because if you had explained the legal issue simply and clearly, I think any possible defense of the President's action --- which you impliedly made by making the issue so hard to grasp -- would have been seen as (excuse me) preposterous. I think it was your view of the issue as somehow obscure, arcane, difficult to decipher and so on which made me both wonder what you were thinking and also left me "unpersuaded" in the most general sense.

The idea that the Resolution's broad language, unbeknowst to Congress, could essentially repeal untold numbers of very specific Statutes strikes me as just too odd to take seriously.

Ros,
It's our "fuss" about such niceties as whether/when the government needs a warrant to intrude into your life which is the exactly whole purpose of the war against terror. Give that up and you hand victory to the bad guys.
12.21.2005 9:32am
Medis:
Cold Warrior,

That possibility (the Administation bypassing the FISC because it did not want to reveal the source of supporting information, because it might have been illegally or otherwise embarassingly obtained) is really pretty frightening. As a "rationale" (I hesitate to dignify it with that name), that would expand the notion of "necessary and appropriate" (the langauge of the AUMF) to include the "necessity" of protecting the Administration itself, not just the American people as a whole.

Anyway, as a completely minor point: thinking about child pornography may be a bit misleading, because the law on obscenity is arguably a bit counter-intuitive. In its obscenity cases, the Court has actually treated the mere movement of obscenity in commerce as an independent evil which the Congress could seek to prohibit (independent in the sense that a person could lawfully possess obscenity at point A in state A, and lawfully possess obscenity at point B in state B, but if they carry that obscenity with them in their baggage on an airplane flying between point A and point B, that could be illegal because of the mere fact that obscenity is moving in interstate commerce).

So, this arguably odd treatment of obscenity--as something which taints commerce itself--may explain why items with that particular content get treated somewhat oddly in border search contexts. In other words, I'm not sure one can easily generalize from obscenity cases to all cases involving information moving through interstate or international commerce.
12.21.2005 9:43am
Cold Warrior:
Medis, that's right. Since child pornography is basically contraband, it is not exactly on point with other electronic communications.

However, I'm not really seeing the "data storage device" vs. "data in the aether" distinction in surveillance law.
12.21.2005 10:07am
Cold Warrior:
Other, than of course, in the constitutional/4th Amendment "expectation of privacy" realm ... certainly the reasonable person has a lower expectation of privacy in what he sends out, e.g., through a wireless internet connection than in what he has stored on his computer's hard drive.
12.21.2005 10:09am
Medis:
Cold Warrior,

Indeed, I was expressing no opinion on the general 4th Amendment issues. I might note that my sense is also that it would probably not matter what form the obscenity took (eg, an electronic signal in a wire or in a radio wave, an electronic record on a hard drive being carried by hand, an actual paper photo being carried by hand, etc.). The crucial point for an obscenity case would just be that the obscenity had left the privacy of the home and entered commerce. Although I also might note that this doctrine could be ripe for change--for example, I'll be watching to see whether the Court grants cert. to the Extreme Associates case.
12.21.2005 10:29am
Bobbie:
ros, you’re ignoring history. I’ll save you the string quotes regarding liberty and death, power and corruption, but there’s a lot of truth in those clichés. Perhaps giving Bush the power to monitor international phone calls without a warrant will save a terrorist strike. But every time this President has had power, he’s abused it. Time and time again, he’s done something that in the abstract seems innocuous, but over time, details start to come out that make you question whether he’s to be trusted. You can mark my words here and now: when more details of this program come out, you’ll see blatant abuses.

Moreover, and this is the dirty little secret that no U.S. politician can mutter aloud: terrorism shouldn’t be our top priority. More people have died of lung cancer caused by smoking in the past ten years than have died of terrorism in the past two hundred. In fact, even if we had 9/11 type attack every year for the next 30 years, those numbers would still be the same. Yet you don’t hear widespread calls for putting the tobacco industry out of business. It would be cheaper and you wouldn’t have the same civil liberty concerns. If instead of fighting the war in Iraq, we used that money to feed the hungry in Africa and built more hospitals in the United States, we’d do a lot more good.

How is our nation in “great peril”? How is moral to spend hundreds of billions of dollars on a war to potentially save a few thousand Americans lives in the long run (although, I doubt even that’s true) instead of spending that money to save potentially hundreds of millions of lives through other means?

Short of setting off a nuclear bomb in every major city, the numbers simply don’t work out. Even if you think it’s likely that terrorists will get a nuclear bomb, it’s still unclear how much our policies reduce the chance of that kind of attack. There’s a 100% chance by spending money in other areas you could save tens of millions of lives. To figure out how many lives our war on terrorism is saving, you’d have to guesstimate what percent chance there was before of a terrorist setting off a nuclear bomb in a major American city, what percentage there is now, and then multiply that by the population of the biggest American city, NY, to figure out how many lives the war is saving. That number is going to be substantially less than the number of people we could keep from starving this year.
12.21.2005 10:40am
OrinKerr:
Bobbi writes:

I understand that you didn’t intend to be an advocate, but you did come to a conclusion, didn’t you? You did say the program was "probably constitutional." Ostensibly, your legal arguments were intended to support that conclusion. They don’t. If you intended merely to cite possible legal arguments that the Bush Administration might make, then job well done. But if you intended to analyze the likely legality of the program, then you need to respond to your critics. If I write an objective memo for my boss attempting to explain the law, if she disagrees with my analysis and my conclusion, I can’t respond that I wasn’t trying to persuade her anyway.

I'm completely confused now. My conclusion is that the monitoring was probably unconstitutional, and I have explained my argument in rather unusual detail.
12.21.2005 10:56am
Markusha:
Orin,
Now I am confused. Now you say that the monitoring was probably unconstitutional, while yesterday you said it probably doesn't violate Constitution. Or are you saying it's unconstitutional because it violates the FISA? Then, it's more accurate to say it's illegal, not unconstitutional.
12.21.2005 11:05am
OrinKerr:
Ack!! Markusha, you're totally right, of couse. I think my brain is fried. Yup, I think it's probably illegal, but probably constitutional. Sorry for the mixup on my end.

So in response to Bobbie (with the e) on the constitutional issue, I'm not sure how far we can take the argument that "no case is needed" (to paraphrase) because it defies your notion of "common sense" to treat the two in the same way. As I explained in my initial post, I'm trying to base my argument on a purely descriptive analysis of existing law, not a normative sense of what I think the law should be. I think the combo of Ickes and Ramsey make for a decent argument based on existing law, although obviously not a slam dunk. If you wouldn't rule that way if you were a judge, that's of course totally fine; I'm not sure why that's supposed to be inconsistent with my claim.
12.21.2005 11:14am
Neal R. (mail):
Prof. Kerr,

Now I'm confused, too. In your original post, you said that "the program was probably constitutional." And in the comments, you rejected Eric Muller's suggestion that even if the program did not violate the Fourth Amendment, it could still be considered unconstitutional. You even challenged Professor Muller to point to any specific constitutional provision that was violated.

Now you are saying very clearly that the program was "probably unconstitutional." But I can't find that assertion in your original post.

???
12.21.2005 11:20am
Neal R. (mail):
Oh, already straightened out.
12.21.2005 11:22am
18 USC 1030 (mail):
This is interesting, according to the New York Times, a certain number of communications have been intercepted whereby both parties were in the United States. If this is indeed true, the number of infractions is of no matter; it is a clear violation of statute and the 4th amendment. Last I checked, FISA cannot be made to apply to US persons in the United States. This could, if true, indicate some abuse of power or at least ineptness in that the intercepts are being conducted without necessary measures to ensure legal implementation. This, it seems, is the reason for which we have warrants, subpoenas, and wiretap orders; so as to ensure safeguarding the rights of the citizens. I thought it a violation before this news came out, now I think it is quite apparent. The "mistakes" leading to the interception of US-US communications is precisely the reason for which the judiciary is an integral part of investigations. Judicial approval for warrants, subpoenas, and wiretap orders prevent the executive from abusing his power and subverting the tripartite government.

I also am not sure I accept the argument that the NSA "made a mistake" or had a "technical glitch." I am not questioning the complexity of the telecommunications network; however, I do not accept the argument that the 4th amendment was violated because of a technical glitch.
12.21.2005 12:53pm
Bobbie:
Professor,

First, since you didn’t defend your national security exception argument in your last post to me, I assume that means you concede that you were wrong to conclude, as matter of “purely descriptive analysis of existing law,” that there is a national security exception. It would be a bit odd to claim that there is in fact a national security exception when the Court has never held that there is, yes? Perhaps there’s policy reasons why there should be, but if we’re merely describing the state of the law, stating an exception exists because the Court chose not to expressly reject it in dicta would be a bit odd.

Second, if, as I argue, your argument that electronic data is analogous to the data itself “defies common sense,” then you’ve failed to make a convincing argument. I don’t need to cite a case when I’m making a distinction between an existing case and a current fact pattern. If you did, then anytime one case was decided in an area, it would swallow the whole field because a court could never draw a distinction between that case and the case before it. Perhaps my common-sense argument is wrong, but if it is right, then you’re conclusion is wrong.
12.21.2005 12:56pm
Paul Virkler (mail):
I suspect that if Congress that known that FISA would keep the US from following up on numbers stored in an AQ cell phone Congress would have said that the President had constitutional authority under Article 2 to investigate all the numbers stored in the resolution to use force.
BOBBIE, you said:
"It would be a bit odd to claim that there is in fact a national security exception when the Court has never held that there is, yes? "
They never has said there is none. The court will tend to avoid Political Questions, if at all possible. Maybe no holdings of national security exceptions, but plenty of mention of it
12.21.2005 1:53pm
Apodaca:
18 USC 1030 writes:
I also am not sure I accept the argument that the NSA "made a mistake" or had a "technical glitch." I am not questioning the complexity of the telecommunications network; however, I do not accept the argument that the 4th amendment was violated because of a technical glitch.
Kinda throws into even sharper relief the danger of relying on the "border search" doctrine, eh? I mean, if the searches were actually being done at the border or its equivalent -- say, the last router or phone switch before the communications transit outside US territory -- then there wouldn't have been any risk of picking up purely domestic communications.
12.21.2005 2:23pm
Apodaca:
Paul Virkler writes:
I suspect that if Congress that known that FISA would keep the US from following up on numbers stored in an AQ cell phone...
False dichotomy. FISA doesn't bar followup; it does, however, impose some minimal standards to prohibit fishing expeditions directed against US citizens in the US. There are means of followup short of launching an immediate electronic dragnet based on the thinnest of leads.
12.21.2005 2:59pm
Paul Virkler (mail):
Apodoca, I was referring to Cold Warrior reponse above
What os effect of requiring reasonable doubt to get warrant on US Citizen for US citizen?

"I would think that if the Al Qaeda agent was known to use the cell phone primarily for Al Qaeda-related activities and if there were relatively few numbers on the phone, then there may well be probable cause."



And Orin Kerr replied:



I totally agree. But how likely is that? Assuming terrorists don't have a sticker on the phone saying "for official al Qaeda use only," you're not likely to know that.



I've seen similar scenarios play out in real life, and it really isn't that difficult to separate the wheat from the chaff. Remember, in the hypothetical we have the cell phone of a known al Qaeda terrorist. Agents first comb through the dialed numbers to see if there's any persons of interest. Then a bit of investigation of other contacts is done. This isn't too hard. People — even recent immigrants, students, etc. — leave trails that are quite easy to analyze. You wouldn't want to immediately try to intercept the conversations of everyone whose name appears in the cellphone "dialed" list; you'd first want to find the potentially interesting ones and do a bit of investigation.
12.21.2005 3:30pm