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A Few Additional Thoughts on NSA Surveillance:
The NSA surveillance story has come at an awkward time for law profs; it's hard to follow the latest in this fast-moving story when you should be working through a pile of exams. But I wanted to respond to a few issues, even if only briefly.

  1. Some have asked me why I question whether the surveillance program violated FISA, given that Bush and Gonzales aren't arguing it didn't. They make the very fair argument that if the administration isn't defending the program on that ground, the program presumably does violate FISA. This is a decent point, but I think it's sensible to be cautious here. My thinking is that there may be strategic reasons why the administration isn't making this argument. Based on my research, an explanation of why the program may not violate FISA would require them to explain the technical details of how the program works, and they presumably wouldn't want to do that in public given that the program is classified. I don't know how likely this is, but it's certainly possible when you're dealing with a secretive agency like the NSA. So in the end, my take is the same as it was before: the program probably violated FISA, but it depends on some details we don't know.

  2. Sticking with that theme, I don't think we know a lot of important facts of how the program works. Questions that I would want to know: Was this surveillance intercepting satellite communications? Assuming that telecom satellites are in geosynchronous orbit, are the satellites over the U.S.? How do they route calls in and out of the United States? (There's a fun Fourth Amendment question: Assuming no border search exception or national security exception, does an individual have a Fourth Amendment reasonable expectation of privacy against intercepting their satellite communications in space? Does it matter whether the satellite orbits the earth outside the United States?) If the interceptions were on wires, not via satellite, then where, how, and by whom were the monitoring devices installed?

  3. A bit about the Fourth Amendment abroad. Some people have been assuming that Fourth Amendment rights are completely territorial, such that those outside the United States have no such rights. The Supreme Court hasn't said a lot about this question: it has said that if you have no voluntary contacts with the U.S. you have no Fourth Amendment rights, but that's about it. Lower courts have filled in more details. According to the lower court opinions, Fourth Amendment rights track the individual's connection to the United States, even if the person is abroad. For example, U.S. citizens retain Fourth Amendment rights abroad; if you're a U.S. citizen and you visit country X, the U.S. government generally can't search your home in country X without legal authorization.

  The exact contours of Fourth Amendment rights abroad are pretty tricky, as it's not like the U.S. government can go to the District Court of Argentina to get a warrant. (In a few circuit cases involving joint U.S.-foreign investigations, for example, courts have said that the Fourth Amendment's reasonableness standard is satisfied if the search complies with the laws of the country where the search occurs. There are no cases on Fourth Amendment rights for searches in orbit, though.) But the key idea is that the Fourth Amendment issues are much less sensitive to the territorial question of where the search is occurring — with the notable exception of the border — than some people seem to be thinking. It's a different case on the statutory front, as the statutes have much clearer territorial bounds.

  Anyway, there's lots more ground to cover, but let me stick with that for now.
chuck jackson (mail):
You wrote:
Assuming that telecom satellites are in geosynchronous orbit, are the satellites over the U.S.?
==========================

One might note that no part of the geosynchronous orbit is directly above the US. (maybe there's some small island in the Pacific I don't know about.) A good portion of the geosynchronous orbit is above portions of the Earth that are due south of the U.S.
12.21.2005 1:32pm
af -- other one:
The blogosphere could really use a thoughtful voice defending the legality of these things. I have three primary issues on the law as Orin presented it:
1. The fisa seems pretty plainly to not be intended to cover communications once they leave the US. Here, all the taps were on international communications, and I think the analysis gives short shrift to this essential substantive distinction. If FISA applies, it is only because technology has advanced since 1978 to render it much more simple to monitor an international communication within the US rather than placing the tap on the other side of the border. So, it is at best a technicality whether the law was violated — the substance of the law has been met by not intercepting conversations within the US.
2. With respect to the AUMF, intercepting enemy communications is an essential and basic incident of war, and is not analogous to interrogation of detainees. We won WWII through our intercepts and our ability to communicate secretly — the story of the essential function of codebreaking in the war is well known. Orin's discussion of this is not all that forthcoming, or is just naïve.
3. As several have noted, with respect to Art II, Orin fails to recognize that the Presidents Art. II powers are at their peak when he is acting iin foreign relations/ conducting foreign wars, which is consistent with the intercepting of communications that are leaving and entering the US and have ties to our enemy, al qaeda.
12.21.2005 1:36pm
Bobbie:
Af, perhaps then you can explain why the NSA program extends beyond Al Qaeda to other groups we are not at war with?
12.21.2005 1:47pm
Charlie (Colorado) (mail):
As far as the point that they would be using the authority of §1802 if they thought they had it, I don't think that's a valid inference in any case. Since using 1802 as a justification seems to depend on a sort of arcane interpretation of 1801(a) vs 1801(b), they may just figure it's easier to depend on — and to explain — the Constitutional powers under article II, especially since (a) they have the precedent of previous Presidents back to Carter that each of them has asserted, by executive order, their primacy in questions of foreign surveillance for intelligence purposes, and (b) since if they didn't assert the Constitutional argument, they'd be open to the same assertion about the previously asserted Constitutional powers.
12.21.2005 1:53pm
18 USC 1030 (mail):
I had posted the following in the other thread, not sure how many people are still reading that one so I thought I'd re-post here. Prof. kerr, does this make sense?

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 2:02pm
Master Shake:

One might note that no part of the geosynchronous orbit is directly above the US. (maybe there's some small island in the Pacific I don't know about.) A good portion of the geosynchronous orbit is above portions of the Earth that are due south of the U.S.

Actually, depending upon its inclination, a geosynchronous orbit can certainly spend some of its time over the U.S. - just not so for those with an inclination of less than the southernmost portion of the U.S.

However, for the purpose of this discussion, what really matters is that all such orbits are above the U.S. for between zero and a very low percentage of their orbits (and are actually above points south of the equator for approximately half of their orbits).
12.21.2005 2:04pm
John Lederer (mail):
I understood Gonzales to be saying that it did comply with FISA because FISA exempts surveillance under another statute, and AUMF is such a statute. From the press conference with Hayden and Gonzales:
=============
"Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides — requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow — there is — unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."


==============

The press conference is also interesting for some of the suggestions it makes about the need for speed, e.g.:
=================

"Q And who determined that these targets were al Qaeda? Did you wiretap them?

GENERAL HAYDEN: The judgment is made by the operational work force at the National Security Agency using the information available to them at the time, and the standard that they apply — and it's a two-person standard that must be signed off by a shift supervisor, and carefully recorded as to what created the operational imperative to cover any target, but particularly with regard to those inside the United States."
====================================
That has the sound to me of intercepts being made in real time, something along the line of "A just called B, let's see whom B is now calling"
12.21.2005 2:13pm
AF:
Orin, I admire your intellectual rigor in identifying the theoretical possibility that the Bush administration's actions do not violate FISA. But everything we actually know about the program, including the Bush administration's defenses of it, suggests that it does violate FISA. I therefore question your bottom line that "the program probably violated FISA, but it depends on some details we don't know." I think the more accurate bottom line is that "it appears that the program violated FISA." Given its speculativeness, the possibility that FISA was not violated does not seem to merit the prominent place you have given it in your analysis or conclusion.
12.21.2005 2:19pm
Karl (mail):
Prof Kerr wades a bit into the extraterritorial application of trhe Fourth Amendment.

af -- the other one -- touches on whether FISA applies to communications once they leave the US.

It seems quite probable to me that the program at issue here builds on Echelon, which intercepts electronic communications outside the US. In fact, Pres. Bush admitted as much in his last press conference.

So a primary issue would be whether FISA applies extraterritorially, esp. where one side of the call is outside the U.S. It would be interesting if someone has case authority holding that it does. I suspect that if any such legal authority existed, the ACLU and others would have been noting it when Echelon was a hot issue.
12.21.2005 2:22pm
John Lederer (mail):
Just an aside:

1. My understanding is that the since the introduction of fiber optics based submarine cables by far the predominant method of carrying international calls is by cable rather than satellite. The cables offer huge bandwidth, a satellite is quite limited in its bandwidth.
2. A cell phone call could likely be intercepted by a satellite picking up the signal between the phone and tower
12.21.2005 2:24pm
cfw (mail):
What happens if we assume the search procedure nets wholly domestic calls - as the NYT indicates? Seems to me still ok, under 4th Amendment, if the procedure gives reasonable protection (4th amendment protects against unreasonable searches).

Does netting of wholly domestic calls invalidate the entire procedure or does the government get some leeway? Good faith mistake would not amount to violation of 4th, at least for program focused on al queda "big fish" (control group member). If both caller and receiver outside the AQ control group, government might need to show good faith and lack of negligence (meaning reasonable suspicion).

Suppose the government has no way of knowing what percentage of the calls or emails are wholly domestic (or keeps no statistics)? Government has the burden of showing no unreasonable search.

What if the government cannot meet a probable cause standard for connection to al queda? No need for warrant under border exception, so probable cause standard inapplicable. Probable cause not relevant under national security exception.

What if the government cannot meet a reasonable suspicion test for connection to al queda? No need for reasonable suspicion under border exception, yes? This is the standard for the national security exception, I suppose, if the Government has no al queda "big fish" (control group member) on the call.

What if the government uses Israelis under Halliburton supervision in Australia to do the monitoring or detecting? No impact under border exception. Does not expand the national security exception.

So far, it seems the Goverment has vulnerability if it has non-trivial monitoring of domestic calls, or has no idea how much of its work focuses just on domestic calls.

Also, it has vulnerability if it can tell it has caught purely domestic calls, but it does not care. Then it needs to turn to the national security exception.

That might work for purely domestic calls of OBL to his minions. Where, below OBL, would the exception end? Courts might need to fashion some sort of "control group" concept, as for corporate attorney-cleint privilege issues (Upjohn). For anyone believed in good faith to be in the al queda control group - ok to apply the national security exception and listen to his purely domestic calls. Beyond that, the national security exception does not apply, absent reasonable suspicion person on one end of the call has on-going membership in AQ.

Tricky questions, eh?
12.21.2005 2:29pm
Greedy Clerk (mail):
Af -- I assume you think that the Steel Seizure case was wrongly decided? After all, we were in a hot war at the time, and the President's powers should have been at their peak, notwithstanding what Congress may have implied to the contrary.

By the way, I completely agree with you that the blogosphere needs an eloquent voice to defend the President's actions. After all, the President is beseiged and does not have enough of his own people to defend him. But don't worry, soon enough Instapundit will probably loosely and vaguely imply that anyone who disagrees with the President is guilty of treason. You should also look to PowerLine -- those genius lawyers who Jim Lindgren often cites have been defending the President on this one.
12.21.2005 2:31pm
Greedy Clerk (mail):
The argument that the AUMF authorizes this is so absurd that I want to scream. Anyone arguing that should have his/her bar license taken and they should be sent to Gitmo. If indeed the AUMF authorizes such surveillance then it also authorizes EVERYTHING re surveillance in the PATRIOT Act and the whole exercise with going to Congress for authorization fo the PATRIOT Act was just a nice little show BUsh decided to put on. Please people, get some f-cking intellectual honesty and cut the crap with this argument. Please.
12.21.2005 2:33pm
Jimbino (mail):
Every satellite in geosynchronous orbit is directly over the Equator, which still passes through South America. No satellite could sit stationary over Hawaii or Key West, for example, much less Alaska.

Furthermore, all currents in all wires produce radio waves that travel outward forever, with the result that any electronic communications, whether by phone, cellphone or internet, involve communications that can be monitored outside the territory of the United States, and most easily in space.

If we had even a single physicist in our legislatures or practicing law, we might have had some sensible legislation by now.

Anyhow, as the NYT pointed out, the terrorists are now communicating by opening joint e-mail accounts and saving their e-mails to the draft folder for each other to read instead of sending them through the internet.

I'm sure that, in general, they are too smart (they have some physicists) not to stay many steps ahead of our scientifically and linguistically handicapped government or to be seriously hampered by our feeble attempts at security.

All this Patriot legislation is interesting as far as the government's erosion of our civil liberties is concerned, but of almost no value in combating terrorism, in my opinion.
12.21.2005 2:35pm
David Matthews (mail):
Geo-STATIONARY satellites are necessarily over the equator; but telecommunications satellites employ a variety of strategies, some geostationary, some elliptical, some in low-earth orbital clusters; the wikipedia article:


http://en.wikipedia.org/wiki/Communications_satellite


looks to be reliable to me. Also, legally speaking, does our air space extend in a cone infinitely out from the ground, or is there a height limit?

12.21.2005 2:36pm
billb:
Orin, as a rocket scientist I have to nitpick a bit. There's a big difference between geosynch and geostationary orbits. Geosynchronous orbits have the same period as the rotation of the Earth, but they do not necessarily maintain position over a certain geographic location (that is, they may be inclined). Geostationary orbits are over a specific location all the time, but they are necessarily equatorial and circular. Since there are very few (if any) exactly equaltorial US possessions, I think that there are likely not geostationary statellites over US territory. Geosynchronous satellites do often pass over US territory.

Check out this page to play with some various orbits.
12.21.2005 2:41pm
Master Shake:

Every satellite in geosynchronous orbit is directly over the Equator, which still passes through South America. No satellite could sit stationary over Hawaii or Key West, for example, much less Alaska.

That's geostationary, which is a specific type of geosynchronous orbit.
12.21.2005 2:56pm
18 USC 1030 (mail):
CFW,

I think there are some problems there. First, the idea that this would be a good faith mistake, I think is a bit of a stretch. This is not the case where the NSA was given a right to do something in a particular manner and made a good-faith error, leading to incorrect usage. This is the case where the NSA is doing something thought to be illegal, yet they are utilizing loopholes to implement wiretaps. To give a real-world example, an officer, armed with search warrant to obtain a particular computer from a residence specified by the model number of the computer executes this warrant. Without his knowledge there are 2 such machines in the house, he seizes the 1 that he finds (for some reason doesn't find the other), which after analysis proves to be the wrong machine. This officer acted in good-faith due to his belief he was correctly executing a warrant. In this case however, the only way for the surveillance to be legal, is if certain conditions exist. In order for a good-faith mistake to be acceptable, one must accept the premise that there is a good-faith belief that a person or tangible thing is not protected by 4th amendment. There can be no good-faith mistake in believing one is not protected. The government, in order to maintain the social contract with the people, ought to always err on the side of protecting rights. What does it tell law enforcement if we allow them to make a good-faith mistake that the 4th amendment does not apply?

You also ask what if the case cannot be made for probable cause or reasonable suspicion as to relationship to AQ. My immediate response to that is reasonable suspicion and probable cause do not exist for the search. If a police officer wants a warrant and lacks probable cause, his warrant is denied; why should this be different? Why is this even a question? I do not understand why anyone believes it a good idea to allow rouge investigators to implement taps, when, admittedly probable cause does not exist. If the probable cause DID exist, a warrant would have been obtained.

If I misunderstood your post, I apologize and look forward to your response.
12.21.2005 3:06pm
Crutchlow (mail) (www):
Senator Larry Craig of Idaho was interviewed on Rush Limbaugh today (12/21) and stated that the surveillance the Bush administration was doing was foreign incoming calls to known operatives. If this is true, then what’s the big deal?
12.21.2005 3:06pm
John Lederer (mail):
"Anyhow, as the NYT pointed out, the terrorists are now communicating by opening joint e-mail accounts and saving their e-mails to the draft folder for each other to read instead of sending them through the internet. "

I don't think I understand that. Isn't the internet being used to get the email from the "sender"'s computer to the draft folder? Isn't the Internet being used for the "recipient" to open and read the draft folder?

Might reduce searches for known addressee's but not searches for key words.

Or is the assumption that they have a shared computer, in which case why not put postits on the screen?
12.21.2005 3:08pm
Mike Heinz, aka ObviousTroll (mail):
Master Shake,

You said:

Actually, depending upon its inclination, a geosynchronous orbit can certainly spend some of its time over the U.S. - just not so for those with an inclination of less than the southernmost portion of the U.S.


That makes no sense to me - if a satellite is in geosynchronous orbit then, by definition, it orbits precisely over the equator. Any deviation and it would cease to be geosynchronous.

I mean, I can imagine an "almost geosynchronous" orbit that wobbles the way you describe, but why would you want that? It would force ground stations to continuously adjust their aim.
12.21.2005 3:08pm
David Matthews (mail):
syn"chronus" = same "time" not necessarily same "place"


see:

http://celestrak.com/columns/v04n07/

12.21.2005 3:10pm
Paul Virkler (mail):
Jumbino,
"Anyhow, as the NYT pointed out, the terrorists are now communicating by opening joint e-mail accounts and saving their e-mails to the draft folder for each other to read instead of sending them through the internet."
How does email get from one computer-through internet to server through internet back to another computer. A bit different but nithing NSA cannot handle.
12.21.2005 3:15pm
Master Shake:
Mike Heinz - read my post a few posts above. A "geostationary" orbit is an orbit with zero inclination (i.e., is directly above the equator) that stays directly above the same point on the equator. It is a specific type of geosynchronous orbit (which just means that it has an orbital period identical to one earth rotation).

Geosynchronous orbits that have an inclination do indeed wobble, and therefore require the effort (and expense) of more sophisticated tracking equipment. On the other hand, it is far more expensive to launch into geostationary orbit (unless you are launching from the equator, which we generally aren't for large satellites) because of the orbital maneuvers (and therefore fuel) required. Another disadvantage of geostationary orbits is that they are relatively poor suited for high-latitude communications.
12.21.2005 3:23pm
The Ace:
18 USC 1030 is insinuating that an intercept of domestic communications is in automatic violation of the law is completely wrong.
It's also comically absurd to suggest it can not happen by accident. You saying "thought to be illegal" (you mean by you) is also ridiculous.

I point you to the governing regulation on the matter:
UNITED STATES SIGNALS INTELLIGENCE DIRECTIVE
(USSID)18

Which addresses everything you're saying and illustrates how exactly backwards you have everything.

SECTION 4 - COLLECTION
b. With the approval of the Attorney General of the United States, if:

(1) The COLLECTION is directed against the following:
(a) Communications to or from U.S. PERSONS outside of the UNITED STATES, or
(b) International communications to, from, [1 line redacted.]

(c) Communications which are not to or from but merely about U.S. PERSONS (wherever located).

(2) The person is an AGENT OF A FOREIGN POWER, and

(3) The purpose of the COLLECTION is to acquire significant FOREIGN INTELLIGENCE information

d. Emergency Situations

(1) In emergency situations, DIRNSA/CHCSS may authorize the COLLECTION of information to, from or about a U.S. PERSON who is outside the UNITED STATES when securing the prior approval of the Attorney General is not practical because:
(a) The time required to obtain such approval would result in the loss of significant FOREIGN INTELLIGENCE and would cause substantial harm to the national security

[please pay attention to this part]

4.3 (U) Incidental Acquisition of U.S. PERSON Information. Information to, from or about U.S. PERSONS acquired incidentally as a result of COLLECTION directed against appropriate FOREIGN INTELLIGENCE TARGETS may be retained and processed in accordance with Section 5 and Section 6 of this USSID.

[let's skip to section 5]
5.4 (S-CCO) Nonforeign Communications.

b. Communications between U.S. PERSONS. Communications solely between U.S. PERSONS will be treated as follows:

(1) Communications solely between U.S. PERSONS inadvertently intercepted during the COLLECTION of FOREIGN COMMUNICATIONS will be destroyed upon recognition, if technically possible, except as provided in paragraph 5.4.d below.

[skip to 5.4.d]
d. Exceptions: Notwithstanding the provisions of paragraph 5.4.b. and c., the DIRNSA./CHCSS may waive the destruction requirement for international communications containing, inter alia, the following types of information:

(1) Significant FOREIGN INTELLIGENCE, or
(2) Evidence of a crime or threat of death or serious bodily harm to any person, or
(3) Anomalies that reveal a potential vulnerability to U.S. communications security.


-----------------------------

I strongly suggest you stop with blantantly false information you're posting.
12.21.2005 3:29pm
A.S.:
Anyway, there's lots more ground to cover, but let me stick with that for now.

OK, here are my requests for the grounds I wish Orin would cover in more detail (they all apply to the Article II discussion; I realize that this is the area that Orin probably has the least expertise with, but given that it is one the bases on which the Administration claims legality - which FISA is not - I think it begs for more analysis):

1. Orin writes that he has not found any caselaw to support the argument that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power. I commented on the initial thread, as have others - both in the thread and elsewhere, that the decision by the FIS Court of Review in the case In re Sealed Case 02-001 (the "wall" case for which Orin cites the US's supplemental brief) in fact DOES state support such argument (albeit, I believe, in dicta): "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

2. Orin states that the cases cited in support of the President's inherent Article II power to conduct warrantless foreign intelligence monitoring — Butenko, Truong, and Keith - all involved whether the Constitution bars warrantless surveillance absent Congressional action, whereas in this case (assuming FISA prohibits it) there is specific Congressional action. But that doesn't make those cases inapplicable; all it does is move the issue from a Steel Seizure Category 2, to Steel Seizure Category 3. I'd like Orin to address why he thinks this should change the result of the analysis. I'd also like to see why Orin thinks that the AUMF (given the analysis in Hamdi) doesn't actually move the case to Steel Seizure Category 1.

3. I'd also like for Orin to address Tom Smith's (of The Right Coast) argument: "It just seems highly doubtful to me Congress could take so much away from the President's power to defend the country as commander in chief. It is very like saying all bombing targets must be approved by the Federal Bombing Agency, as provided for by the Bombing Act of 2005. Why would Congress's attempts to tell the President how to wage war in this respect, that is, identifying the agents and plans of the enemy, be any different than attempting to tell him to invade through Italy rather than France?"
12.21.2005 3:38pm
snead16 (mail):
Crutchlow:
"Senator Larry Craig of Idaho was interviewed on Rush Limbaugh today (12/21) and stated that the surveillance the Bush administration was doing was foreign incoming calls to known operatives. If this is true, then what’s the big deal?"

What's the big deal?

Why the hell are these people -- these so-called "known operatives" -- doing running around free in the USA?

Why haven't they been detained and sent to . . . anywhere but here?

Are we waiting to see if we can catch them just before they detonate a nuclear bomb?

That sort of statement by Craig (and Crutchlow) prove how intellectually bankrupt this group is.

If these people are "known operatives" -- which I assume Craig knows because he heard Bush say it on TV -- and this administration is letting them run loose in America, then Bush is criminally negligent if not plain stupid.

That entire line of argument is criminally stupid.
12.21.2005 3:43pm
Choosing Sides 2:
The Ace is an amazing poster. He or she manages to be condescending and mean to everyone else while getting the law entirely wrong. That's a truly astounding combination.
12.21.2005 3:45pm
The Ace:
Choosing Sides 2,

Does that mean " Communications between U.S. PERSONS. Communications solely between U.S. PERSONS will be treated as follows:" doesn't mean what the regulation says?

Care to point out where I'm wrong instead of just prounouncing it so?
12.21.2005 3:50pm
Choosing Sides 2:
The Ace, I've been following your posts from the other threads as well. I have no real interest in engaging you in a discussion, because you have been rude and unjustifiably condescending to everyone who has engaged you. My previous post was designed more to point that fact out than to actually debate you.
12.21.2005 3:57pm
A.S.:
Shoot, I truncated the quote from In Re Sealed Case 02-001 above, deleting the most important phrase: ""The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. ... We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power." (emphasis added)

Sorry. I thing the emphasized part is the most important part in support of the idea that FISA may not encroach on the President's Article II power...
12.21.2005 4:00pm
cfw (mail):
Greedy Clerk:

"The argument that the AUMF authorizes this is so absurd that I want to scream. Anyone arguing that should have his/her bar license taken and they should be sent to Gitmo. If indeed the AUMF authorizes such surveillance then it also authorizes EVERYTHING re surveillance in the PATRIOT Act and the whole exercise with going to Congress for authorization fo the PATRIOT Act was just a nice little show BUsh decided to put on. Please people, get some f-cking intellectual honesty and cut the crap with this argument. Please."

I had this impression initially. But, if the Government argues the national security exception to the 4th Amendment (assuming the Court finds one exists), does the AUMF help indicate the agreed national security interest in what OBL may say purely domestically to his minions by cell phone?

18 USC 1030,

"This is not the case where the NSA was given a right to do something in a particular manner and made a good-faith error, leading to incorrect usage."

I am focusing on the 4th Amendment limit, not FISA limits. I am assuming that, per the AUMF (which came after the FISA), Bush could do all that Article II and the 4th Amendment allowed. Then assume that the technology (the search program) would not indicate reliably if OBL used his cell phone from Canada to call NYC, or from Albany to call NYC. It seems like the concept of "good faith error" would be in play until the system operator knew the system had a flaw. Then, the concept of only "unreasonable" searches are forbidden might become relevant, if the Government could show that 99.9% of the time, the Government knows from its system if the call is purely domestic or not (and .1%, through unpredictable flukes, its system misreads "purely domestic" as "partly foreign.")

"This is the case where the NSA is doing something thought to be illegal, yet they are utilizing loopholes to implement wiretaps."

Government may have just said that it had acted outside FISA. I'm not sure it said it acted in ways it thought were illegal.

"In this case however, the only way for the surveillance to be legal, is if certain conditions exist."

This absolute approach has not found favor in the USSCT, which has a good faith exception and talks regularly about reasonable searches being allowed without warrants.

"In order for a good-faith mistake to be acceptable, one must accept the premise that there is a good-faith belief that a person or tangible thing is not protected by 4th amendment."

True, such as believing in good faith OBL is calling from Canada, not Albany, to NYC.

"There can be no good-faith mistake in believing one is not protected."

OBL is not protected in Canada (border exception). If Govenment believes in good faith he is in Canada, but he is in Albany, why not a good faith exception?

"The government, in order to maintain the social contract with the people, ought to always err on the side of protecting rights."

Which rights? Declaration of Independence mentions life, liberty and property. If OBL calls NYC from Albany, might they emphasize life protection over liberty, under national security exception? Wouldn't you consider Bush derelict if he did not say "tape that call"?

"What does it tell law enforcement if we allow them to make a good-faith mistake that the 4th amendment does not apply?"

That we are on their side, and that we want them doing the best they can do in good faith? I am assuming that the searches did not veer off into PETA-type areas, and focused just on OBL and his associates. (An assumption that I fear will prove counter-factual.)

"You also ask what if the case cannot be made for probable cause or reasonable suspicion as to relationship to AQ. My immediate response to that is reasonable suspicion and probable cause do not exist for the search. If a police officer wants a warrant and lacks probable cause, his warrant is denied; why should this be different?"

Think customs officer. Ever seen one show a warrant before inspecting bags?

"Why is this even a question?"

Would not be a question except for border exception and national security exception to 4th Amendment, in my view. You find those exceptions inconsistent with the 4th?

"I do not understand why anyone believes it a good idea to allow rouge investigators to implement taps, when, admittedly probable cause does not exist."

Recall that USSCT has long said no need for warrant or probable cause for border search. Also ask yourself if you can agree to a narrow national security exception to the 4th Amendment. My initial reaction was negative, recalling Nixon and Watergate, but what if you caught OBL using a cell phone to call NYC from Albany? Ok to listen in?

"If the probable cause DID exist, a warrant would have been obtained."

You might be right. Or they may have concluded, rightly, that they needed no warrant. I have not seen enough facts to say the case is free from doubt.
12.21.2005 4:05pm
The Ace:
The Ace, I've been following your posts from the other threads as well. I have no real interest in engaging you in a discussion, because you have been rude and unjustifiably condescending to everyone who has engaged you.

If you say so.
Coward.
12.21.2005 4:06pm
Choosing Sides 2:
A.S., I think you are mistaken as what the court is saying. When they are saying, "we take for granted," I believe they are saying, "we assume for purposes of this opinion." That is normally what courts mean in such cases when they use the "take for granted" language. To me, they assume that question because they wanted to resolve the case on easier grounds. As a result, I don't think it really proves much of anything.
12.21.2005 4:07pm
18 USC 1030 (mail):
THE ACE,

I am not blatantly wrong; it is an automatic violation of law. Your post illustrates that. Intercepts of US persons is an automatic violation of law BUT FOR the circumstances you cited. I agree with you that in those cases it is not a violation of law, this is obvious; however, the reason for which that statute is necessary is because without those particulars, the intercept is not legal. It is important to remember where the burden lies. If a warrant or court order is present, the search is presumed to be legal unless proved otherwise. Whereas, in a search conducted without a warrant or court order, the burden lies on the government to show that the search was legal due to the characteristics of the intercept. So yes, intercepts of the US persons MAY be legal; however, the intercepts are presumed to be illegal until shown to be legal. If law enforcement shows the intercept fit within the framework of the law, the intercept was legal. The government has yet to provide any evidence as to the facts of the individual intercepts in order to prove legality. Therefore, the intercepts are illegal. This does not say the intercepts cannot be shown to be legal; but, a priori, the warrantless intercept of communications of a US person is illegal.

Next, you point out:

4.3 (U) Incidental Acquisition of U.S. PERSON Information. Information to, from or about U.S. PERSONS acquired incidentally as a result of COLLECTION directed against appropriate FOREIGN INTELLIGENCE TARGETS may be retained and processed in accordance with Section 5 and Section 6 of this USSID.

I agree with this as well, information obtained INCIDENTALLY as a result of COLLECTION is not illegal. Problem is, in this case, the evidence obtained was not incidental of the COLLECTION. It was incidental to the installation of the device. Evidence incidental to collection would be if some other communication was obtained, or if the wrong conversation was incidentally obtained. In this case, the communications were purposefully obtained between two US persons, when the government believed one to be foreign. There is a difference. In the first case, conversations were obtained that which were not intended to be obtained, but rather, do to the constraints of the system were incidentally obtained. The second case (which occurred here) the communication between two US persons was recorded with a belief that 1 party was not in the United States. This is not incidental because it was the purpose of the intercept.


Further you quoted the conditions in which the evidence may be kept rather than destroyed:

(1) Significant FOREIGN INTELLIGENCE, or
(2) Evidence of a crime or threat of death or serious bodily harm to any person, or
(3) Anomalies that reveal a potential vulnerability to U.S. communications security.

Assuming, a judge were to accept the evidence as be incidental rather than the intention, a priori, the evidence is still to be considered illegal unless the government can show the intercept fit 1 of the 3 categories. If DOJ reaches the burden of 1 of the 3 categories, the evidence is legal. But, once again, this evidence a priori illegal until shown to be legal.

Also, the incidental intercept ought to be considered. It is obviously necessary to have a provision for incidental intercepts in the law, it cannot be argued that the government must destroy evidence obtained incidental to collection. However, this incidental requirement must be read carefully. It is the purpose of an incidental clause to allow the government to install illegal taps and defend the communications intercepted by claiming the evidence was incidental to collection. That is where the problem is; intent. If one intends to collect data, it cannot be claimed to be incidental. If certain circumstances must be present for this type of intercept to occur, the intercept is a priori automatically unconstitutional. If an "error" is made leading to an erroneous belief that X is true which leads to an erroneous conclusion that Y is true, it is unacceptable thereafter to claim a good-faith mistake, too many steps were incorrect. If this is allowed to exist, the executive may intercept any communication they want, claim it was "incidental" to something, then, so long as evidence of an unlawful act was obtained, the evidence could be used in court. This sort of goes against that whole 4th amendment thing. Police officers are not authorized to tap anyone they want and if they find something, it is usable, otherwise tape erased; why should the NSA be authorized to do so while dealing with US persons? Better question: why is the NSA engaged in domestic investigations? See this is another where it becomes murky. Not only is there the issue of incidental vs. intentional, there is also the fact that the NSA is not authorized (or theoretically is not authorized) to engage in domestic surveillance.

My post was not blatantly false, just as your post was not blatantly false; yet, not completely accurate.
12.21.2005 4:29pm
The Ace:
Lets go backwards:

Not only is there the issue of incidental vs. intentional, there is also the fact that the NSA is not authorized (or theoretically is not authorized) to engage in domestic surveillance

The law, courts, and regulations all assume this is going to happen. Why?
1. Terrorists on our soil
2. US Persons communicating with terrorists abroad
3. The nature of the technology used to monitor these communications

That doesn't mean they are intentionally engaging in said activity. But again, if it happens incidentally, that incidental action is not illegal as long as the communications are not saved.


In this case, the communications were purposefully obtained between two US persons, when the government believed one to be foreign.

And yet you still are saying it's illegal when it's clearly not as the regulations anticipated this and directed action.

Therefore, the intercepts are illegal. This does not say the intercepts cannot be shown to be legal; but, a priori, the warrantless intercept of communications of a US person is illegal.


Yes, but you are assuming there has been no demonstration they are legal.
That is my main point on your posting(s).
You seem to be insinuating this is all illegal because it hasn't been demonstrated to you otherwise.

It makes no sense.
12.21.2005 4:40pm
Andrew Hyman (mail) (www):
I'd like to hear what Professor Kerr has to say about the saving clause of the AUMF: "Nothing in this resolution supercedes any requirement of the War Powers Resolution."

It's a maxim in the construction of statutes that an express exception, exemption, or saving clause excludes other exceptions. Where there are express exceptions these comprise the only limitations on the operation of a statute and no other exception will be implied. (Sutherland on Statutory Construction, Fourth Edition, Vol. 2A, p. 90). So, isn't it improper to say that FISA includes an exception to the presidential power that would otherwise be inferred from the AUMF?
12.21.2005 4:44pm
Kazinski:
The esteemed Instapundit says:

In answer to one of [Orin's] concerns, the question of U.S. jurisdiction over satellites does not depend on whether they are over the United States, but rather on whether they are carried on the U.S. registry.

http://instapundit.com/archives/027633.php
Since Reynolds styles himself as an expert on space law, I'd say that should be definitive.
12.21.2005 4:45pm
Tom Holsinger (mail):
We have GOT to get Orin Kerr and Eugene Volokh together concerning their adjacent posts on (Volokh) David Letterman's interception of, and interference with, Ms. Nestler's thoughts, and the NSA's satellite interception of cell phone calls.

If Ms. Nestler is that upset about her thoughts, what kind of restraining order might the Santa Fe District Court grant her concerning her phone calls?
12.21.2005 4:52pm
The Ace:
18 USC 1030,
I see I failed to answer one of your main broader points.

Yes, domestic spying is illegal. And the regs demonstrate that by virtue of having the incidental communications among US Persons destroyed.
What I meant to say is that the ancillary activity of the program doesn't make the program illegal.

And for our purposes, I'm talking of a US Person as someone who is not engaged in international terrorism, sabatoge, etc.
12.21.2005 4:59pm
A.S.:
Choosing Sides 2: I think that "take for granted" is just an indication that the sentence is dicta (especially given the next sentence, which I didn't quote, basically says that the court is really answering the reverse issue). Nonetheless, the fact that it is dicta doesn't mean it is irrelevant.
12.21.2005 5:03pm
Joshua (mail):
With the news today that purely domestic communications were tapped, and despite the expert legal opinions provided by Rush Limbaugh, I think Justice Stewart said it best when he noted that "The Fourth Amendment protects people, not [satellites in geosynchronous orbit]," (kind of).
12.21.2005 5:06pm
The Ace:
Joshua, you must have been "outraged" at this:

OKLAHOMA CITY - In the days after the 1995 Oklahoma City bombing, the U.S. government used a spy satellite to gather intelligence on a white separatist compound in Oklahoma, according to a published report.


Right?
12.21.2005 5:29pm
Greedy Clerk (mail):
Well if Larry Craig says so on Rush Limbaugh it must be true. . . . You people are parodies of yourselves. For all the administratio apologists on this thread, ask yourself these two questions: (1) Would you be acting the same way if Clinton were still President?; and (2) Is there anything -- ANYTHING -- that you would think is beyond the President's power to conduct this war?

We all know the answers to these questions.
12.21.2005 5:32pm
Master Shake:
Ace-

Why in the world would the government using a satellite to photograph a compound have anything to do with what Joshua said? At all?
12.21.2005 5:33pm
The Ace:
Why in the world would the government using a satellite to photograph a compound have anything to do with what Joshua said? At all?


Are you kidding?

You kids on the left are really cracking.
Further, how do you know it was "photographing" anything?
12.21.2005 5:35pm
The Ace:
(1) Would you be acting the same way if Clinton were still President?; and (2) Is there anything -- ANYTHING -- that you would think is beyond the President's power to conduct this war?


Clinton did it.
Not in dispute. Was the right in hysterics over it?

Also read this and get back to us on the power's issue.
12.21.2005 5:37pm
Apodaca:
The Ace writes:
And for our purposes, I'm talking of a US Person as someone who is not engaged in international terrorism, sabatoge [sic], etc.
In other words, you're using a definition materially different from that used in FISA and Fourth Amendment jurisprudence, not to mention the SIGINT Directive you're quoting from. (Hint: section 9.18 says: "9.18. UNITED STATES PERSON: a. A citizen of the UNITED STATES....")
12.21.2005 5:38pm
Master Shake:

Further, how do you know it was "photographing" anything?

Uh - because that's how they would get information "on a compound". This has nothing to do with intercepting communications, dolt.
12.21.2005 5:40pm
The Ace:
Apodaca,

An agent of a foreign power is any person who engages in international terrorism.
Which is why I'm making that distincition.

Further, you don't seem to have a point.
Please clairify.

Uh - because that's how they would get information "on a compound". This has nothing to do with intercepting communications, dolt.


Please re-read the article:

There was no indication in the document of what information the satellite might have gathered, or what the spacecraft was capable of doing.


dolt!
12.21.2005 5:44pm
18 USC 1030 (mail):
The Ace,


You seem to be insinuating this is all illegal because it hasn't been demonstrated to you otherwise.

That is not what I am saying at all. What I am saying is it is illegal unless those stipulations exist. Similarly it is legal if those stipulations are met. I am not making a definitive statement either way as I do not have the facts of how these intercepts were obtained.

Another issue that I think deserves question is the boarder exception- this I believe brings major issue to a good-faith defense. The boarder exception applies to those crossing the boarder. If I cross from Canada into the US boarder patrol can and most likely will search me and or my car, they have this right as I have crossed the boarder. The problem here is two-fold. First does someone have an expectation of privacy when communicating with someone in a foreign country? I do not know the answer to this; it depends on the technology being utilized. The good-faith defense however is flawed based on the inherent purpose of the boarder exception. Interestingly, one can either cross a boarder or not cross a boarder. There is no in between, there is no "I thought he crossed." Now with technology to use a boarder exception to intercept communications and when it proves a communication was 2 US persons to claim good-faith is a bit absurd. I understand the premise don't get me wrong. However, when thought out, can one really claim the boarder exception was to be applied in such a manner that it was possible to obtain evidence based on a good-faith error which believed a boarder crossing occurred when it did not? I find this to be a bit hard to accept...
12.21.2005 5:46pm
Master Shake:

There was no indication in the document of what information the satellite might have gathered, or what the spacecraft was capable of doing.

Uh, then:
1) why would you say that Joshua must be outraged, since it says nothing about using it to intercept communications (dolt); and
2) do you think that what the government was doing was intercepting communications in the hope they were randomly sending out the blueprint of the compound? The article DOES make the point that what was unusual here would be the use of PHOTO-RECONNAISSANCE domestically (dolt).
12.21.2005 5:53pm
The Ace:
) why would you say that Joshua must be outraged, since it says nothing about using it to intercept communications

Look simpleton, this isn't terribly complicated.
You nor your fellow ignorant have any idea what that sattelite was doing.
While insisting (falsely) Bush is "spying" on Americans.

Get it yet?

Is this that complicated to grasp?
12.21.2005 6:01pm
Master Shake:
What is a sattelite?
12.21.2005 6:02pm
The Ace:
First does someone have an expectation of privacy when communicating with someone in a foreign country?

I don't see how you possibly could.
12.21.2005 6:08pm
The Ace:
You leftists are funny.
Clinton Administration monitors all global communications, uses satellites to monitor terrorist suspects.
Not a peep.

Bush does it.
"Illegal"

You are quickly becoming a non-credibile alternative as a political party.
12.21.2005 6:12pm
18 USC 1030 (mail):
The Ace,

One more question, where does your definition of an agent of a foreign power come from? You say

An agent of a foreign power is any person who engages in international terrorism.

I'd like to know where in US Law or International Law that comes from. I know for a fact that it does not come from international law, ya know those pesky Geneva Conventions. If you are right that international terrorists are agents of a foreign power, then these individuals (all of them) are entitled to POW status and all other rights afforded a member of an opposing army. Oh wait, that is not true is it? I am sure you can explain why Geneva does not apply and why these guys are insurgents, not members of an enemy power. You cannot have it both ways, pick one. Insurgents or agent of a foreign power; which is it?
12.21.2005 6:19pm
Master Shake:
Ace is just making stuff up and spouting inanities. No point engaging him anymore.
12.21.2005 6:25pm
Roger (mail):
I am beginning to think that Ace is not a lawyer, in which case, his opinion is worthless. However, perhaps he can provide citations to show that he knows what he is talking about.
12.21.2005 6:46pm
The Ace:
18 USC 1030 FISA:

Section 1801
(b) ''Agent of a foreign power'' means -
(2) any person who
(C) knowingly engages in sabotage or international
terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
(E) knowingly aids or abets any person in the conduct of
activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).


----------------------
Some instance of "making stuff up" huh milkshake?
12.21.2005 6:49pm
The Ace:
I am sure you can explain why Geneva does not apply and why these guys are insurgents, not members of an enemy power. You cannot have it both ways, pick one. Insurgents or agent of a foreign power; which is it?


Are you suggesting FISA is to govern the US Government's conduct in regards to the treatment of enemy combatants or POW's?

I hope not.

I am beginning to think that Ace is not a lawyer, in which case, his opinion is worthless. However, perhaps he can provide citations to show that he knows what he is talking about.


1. I've done nothing but provide citations
2. You're opinion is of not much import or matter to me.
12.21.2005 6:51pm
Wince and Nod (mail) (www):
Please stop calling each other dolts, whether or not it is true. It is against the rules here. We are all dolts sometimes. Some of us are brilliant sometimes. Some of us muddle through.

Thank you,
Wince
12.21.2005 6:52pm
The Ace:
^Your
12.21.2005 6:52pm
The Ace:
18 USC 1030 - question for you:
Was it only after the creation of the FISC in 1978 that intercepting enemy communications became lawful?

If yes, please explain.

If no, where did this authority come from?
12.21.2005 6:54pm
Master Shake:

^Your

Best point you've made all day.
12.21.2005 6:54pm
The Ace:
milkshake,
I've noted your stunning legal analysis on the issues at hand.

Hey, am I "making up" stuff tonight or what?
12.21.2005 6:57pm
Medis:
Andrew,

You wrote, "So, isn't it improper to say that FISA includes an exception to the presidential power that would otherwise be inferred from the AUMF?"

I'd like to hear Orin's thoughts on that issue as well. But in the meantime, I'd note a couple things. First, more as an aside, FISA as amended by the USA-PATRIOT Act actually comes after the 2001 AUMF.

Second, more centrally, I think that if the 2001 AUMF explicitly discussed electronic surveillance within the scope of FISA and established different rules, then it would certainly be the case that FISA (at least before it was amended by the USA-PATRIOT Act) would not be "saved" as an "exception" from the operation of this hypothetical 2001 AUMF.

But the 2001 AUMF does not explicitly discuss electronic surveillance. Rather, it simply says the President can use "necessary and appropriate force". And one can read that as consistent with FISA simply by holding that FISA (particularly as amended) defines what the Congress believes is necessary and appropriate.

So, I think your question depends on an assumption that is not necessarily valid: that the 2001 AUMF as written implicitly authorizes the President to violate FISA, and hence FISA is not "saved" unless it is explicitly listed as an exception.
12.21.2005 6:58pm
Karl (mail):
The steel seizure case seems easily distinguishable to me. The Court's opinion states:

The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.


It seems to me that the collection of intell falls much more squarely within the Article II CinC authority.

BTW, I have yet to see anyone address whether FISA applies to extraterritorial intercepts, such as are gathered and filtered by Echelon, which collects data outside the US with assistance of foreign Intell agencies. It seems relevant when you consider that the current program is probably built on that system.
12.21.2005 6:58pm
The Ace:
Karl,
The Clinton Admin argued Echelon was legal and obviously practiced what you described above.
The info was gathered by the Australians and British then sent to NSA.
We, for the most part, are no longer engaging in that practice.
12.21.2005 7:01pm
Greedy Clerk (mail):
According to Jim Lindgren's hero, John Hindrocket of the "Blog of the Year" PowerLine, Orin is an idiot, and in fact EVERYONE agrees that the surveillance in question is legal -- apparently Orin is not someone. I quote: "The authorities are all on one side; they agree that warrantless surveillance for national security purposes is legal. I think your articles misleadingly suggest that there is real uncertainty on this point, when there isn't." http://powerlineblog.com/archives/012624.php

Ah, the wingnuts today --- blatantly lying ain't no thing but a chicken-wing. But Dan Rather is dumb, and PowerLine proved it.
12.21.2005 7:03pm
Master Shake:

Hey, am I "making up" stuff tonight or what?

Si senor.
12.21.2005 7:04pm
Greedy Clerk (mail):
Ace -- just because Clinton did it doesn't make it legal. So cut the BS already with that one.
12.21.2005 7:04pm
Jimbino (mail):
Saving an e-mail to your drafts folder is not an obvious communication with anyone, so how can it be a crime to save it and how under what conditions would it be legal for the government to view it? Is Polaris in stationary orbit with the earth? If so, it would be a great satellite for communication at high (positive) latitudes.
12.21.2005 7:16pm
Just an Observer:
I renew the question I posed in the earlier thread. It is not rhetorical. No one seems to know the answer. I honestly don't.

Can anyone suggest a realistic scenario under which the legal issues raised in this controversy might be presented in an actual case that the courts can decide?
12.21.2005 7:19pm
Medis:
Karl,

50 USC 1801(f) basically provides an answer to your question, but it is a complicated one--it depends on a number of factors. But I might note that one of the factors is whether they are targeting the contents of the communications of a known, particular US person inside the United States. In that case, it does not seem to matter where we intercept the communications for FISA purposes (eg, it does not have to be inside the United States).

And from what is being reported, and from what the Administration has said/not denied, it seems like we might indeed be targeting known, particular US persons inside the United States for surveillance (eg, we suspect a person is an agent of a foreign power operating inside the US, so we target all their international communications). If true, that explains why they have not argued that FISA is inapplicable, because at that point it wouldn't matter how or where they were doing the intercept.
12.21.2005 7:19pm
Humble Law Student:
Ace,

You are making some excellent points. Don't stoop to their level, it just drags you down with them.
12.21.2005 7:22pm
Andrew Hyman (mail) (www):
Medis,

I have to admit that you're probably correct when you pointed out that the last sentence of the AUMF was not intended to "list" all statutes which were not superceded. The maxim of expressio unius only applies when a statute identifies "a series of two or more terms or things that should be understood to go hand in hand." Chevron U.S.A., Inc., v. Echazabal, 536 U.S. 73, 81 (2002). So, you're correct that just listing the War Powers Act in the AUMF did not amount to a "list" that would trigger the doctrine of expressio unius, so as to supercede FISA.

HOWEVER, here's the last sentence of the AUMF: "Nothing in this resolution supercedes any requirement of the War Powers Resolution." The clear implication is that the resolution WAS intended to supercede SOME requirement. Otherwise the words "of the War Powers Resolution" would be pure surplusage. And what requirements were supereceded by the AUMF? The answer is obvious.

The AUMF superceded any requirement that would inhibit the President from using “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

And, I think the President has a decent argument that the FISA process did inhibit him from meeting the duties imposed upon him by the AUMF.
12.21.2005 7:24pm
Medis:
Just and Observer,

I suppose it depends on what you mean by "realistic", but a couple obvious possibilities leap to mind. One would be if a civil plaintiff got enough information to put together a complaint that would get the suit to discovery. There are a lot of potential sources of such information: FOIA, Congressional hearings, voluntary disclosures, and so forth. Another obvious possibility would be if someone got charged with a crime. That might seem far-fetched, except it is possible that someone in particular went a lot farther than the Administration is willing to defend, or maybe an independent prosecutor of some sort will get appointed, and so on.

But all this is tenative--it is early days yet, so we don't know what might happen in the courts.
12.21.2005 7:27pm
Humble Law Student:
To everyone else out there

There sure it a lot of personal opinion being thrown around. Some informed, some not.

However, practically no one is bringing forth any relevant case law on the subject. Of course, that is party because there isn't much to begin with.

The court in Truong is one of the best (and few)court opinions we have to go on. Assuming that the intercept program is complying with the stated guidelines, the argument from case law goes rather clearly in favor of the administration's argument. And, I haven't seen much caselaw to directly counter it.

Now, you all can make plently of normative arguments about the intercept program, but stop dressing up your own normative opinions in the guise of law. Much of the arguments here are about what should be done. That's all fine, but please stop saying that since you "think" it shouldn't be done that it is therefore somehow illegal.

Cases pleases. If you don't have anything clear, then go find some. If you can't find anything after that, then shut up, because your argument is irrelevant concerning the legality of the program.
12.21.2005 7:29pm
Master Shake:

If you don't have anything clear, then go find some. If you can't find anything after that, then shut up, because your argument is irrelevant concerning the legality of the program.

All hail humble law student.
12.21.2005 7:32pm
Charlie (Colorado) (mail):
John Lederer:

I don't think I understand that. Isn't the internet being used to get the email from the "sender"'s computer to the draft folder? Isn't the Internet being used for the "recipient" to open and read the draft folder?


It's one of those little technical issues that non-technical people find confusing. let's say that these two terrorists, Alice and Bob, establish two hotmail accounts, create emails and send them back and forth. The time while they are communicating from browser to hotmail to create the emails is done through the HTTP protocol; the mail is transferred through the SMTP protocol.

HTTP is coupled only to the particular machine on which you're working at the time; if, as a matter of tradecraft, you make it a practice to connect from a different Starbucks every night, there is little or nothing that allows the connection to be identified and tracked to you. If you have two people communicating by manipulating their email (or a private blogger page, or whatever), then intercepting the communications would mean you had to identify the page AND where Alice and Bob would next be working from in order to get the identities.

An email message goes by SMTP, which attaches sender and recipient identities, so you can intercept that by just looking for SMTP protocol and reading the address.

So yes, they're both over the internet; but one's more or less feasible, the other not.
12.21.2005 7:36pm
Medis:
Andrew,

Thank you for the gracious admission--and I might note you made the argument for me much better than I made it for myself.

Anyway, I'm not sure I follow your logic. Maybe it is worth recalling a few of the requirements of the War Powers Resolution. Among others, there are both specific consultation and reporting provisions which apply even after the use of military force has been authorized.

Now, let's look at the sentence you are citing in context:

“(a) In General.—That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements.—
“(1) Specific statutory authorization.—Consistent with section 8(a)(1) of the War Powers Resolution [50 U.S.C. 1547 (a)(1)], the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution [50 U.S.C. 1544 (b)].
“(2) Applicability of other requirements.—Nothing in this resolution supercedes any requirement of the War Powers Resolution [50 U.S.C. 1541 et seq.].”

So, I would say the obvious import of (b)(2) is that it intends to save all the other requirements of the War Powers Resolution, including things like the consultation and reporting requirements that continue after an authorization of military force.

I'm not sure how you get out of this that the 2001 AUMF was necessarily intended to supercede anything. Again, it seems obvious to me that subsection (b) is entirely about the War Powers Resolution, and subsection (b)(2) simply does what it says: makes sure that all the other requirements of the War Powers Resolution are still applicable.
12.21.2005 7:41pm
Charlie (Colorado) (mail):
Medis:
One would be if a civil plaintiff got enough information to put together a complaint that would get the suit to discovery.


Since 50 USC Chpter 36 sub I seems to make "agents of a foreign power" ineligable for civil relief, who'd have standing to file such a suit? Wouldn't you have to find someone who was (a) intentionally intercepted, (b) had no relation to any agent of a foreign power, (c) had something intercepted and retained in violation of the minimization rules, and then (d) wouldn't the discovery be restricted by classification rules anyway?
12.21.2005 7:46pm
Andrew Hyman (mail) (www):
Medis, I think that you're essentially saying that (b)(1) created a "list" of sections of the War Powers Resolution, and therefore Congress was concerned that the "list" would trigger expressio unius unless (b)(2) was added to prevent that from happening. Am I understading you correctly?

But, Congress could have accomplished that by simply saying in (b)(2) that "Nothing in this resolution supercedes any requirement." The additional language that Congress used in that last sentence of the AUMF indicates that Congress was interested in saving all of the requirements in the War Powers Act, while indicating that other requirements inconsistent with AUMF would indeed be superceded.
12.21.2005 7:53pm
Just an Observer:
Andrew, Medis;

What about the reverse construction posed within FISA? section 1811 states:


Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.


That provision specifically anticpates a future state of war, and prescribes a limited exception to the court-order requirement in that event.

Granted, that raises the issue of whether the AUMF constituted a declaration of war. (I have seen arguments both ways on that question.) If the AUMF is deemed to be the same as a declaration of war, would not this clearly have triggered Section 1811 -- for only 15 days?
12.21.2005 7:54pm
Andrew Hyman (mail) (www):
Just an Observer:

Not if Section 1811 would prevent POTUS from using "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
12.21.2005 8:01pm
Medis:
Charlie,

More properly, your (b) should be "is not an agent of a foreign power". In other words, the ideal plaintiff would be someone who the government surveilled under this program but it turns out they were not in fact an agent of a foreign power.

On (d), I believe the applicable doctrine would be the "states secrets" privilege. It is indeed quite broad, but it is nonetheless a matter for the court to decide--mere assertion by the executive authority is not enough.
12.21.2005 8:02pm
Just an Observer:
Andrew,

That reasoning seems circular. The AUMF language describes a state of war, which -- if the AUMF is indeed equivalent to a declaration of war -- specifically triggers Section 1811.
12.21.2005 8:07pm
Karl (mail):
Actually, I'm suggesting several things. While everyone is going over FISA, they aren't addressing the general presumption against extraterritoriality. And that, as this article in the Duke Law Journal notes:

The overall result of the interaction between the Fourth Amendment, FISA, Executive Order 12,333, and the agency guidelines is that the procedures to be followed when conducting electronic surveillance vary depending upon the identity of the target and his geographic location. All electronic surveillance that takes place in the [*pg 1501] United States must be conducted in accordance with FISA, whose primary requirement is prior judicial authorization from FISC. However, when the surveillance occurs outside of the United States, FISA is not applicable, and there is no requirement of prior judicial authorization. In these cases, Executive Order 12,333 is the primary source of regulation.


I'm suggesting the the still-classified EO setting up the intell collection at issue might well modify EO 12,333 in very interesting ways. I'm suggesting that anyone who thinks that the US is not working with foreign intell agencies to collect this data is making a huge assumption. Indeed, I'm suggesting that the technical aspects of the new program are likely built on the Echelon architecture (how else would it be collected?). I'm suggesting that this chart prepared by the CDT ought to be useful in understanding how easy it would be to set up the program under discussion in a way that FISA is not even involved.

I'm suggesting that no one can offer anything remotely approaching a definitive opinion on the legality of the program unless they knew a number of things that are simply not on the public record.
12.21.2005 8:14pm
Andrew Hyman (mail) (www):
Just an Observer, I would agree with you --- if the AUMF were merely a declaration of war. However, the AUMF was not merely a declaration of war. The AUMF provided specific statutory guidance, above and beyond any declaration of war. It imposed on the President a duty to use "all necessary and appropriate force" to achieve certain statutory ends, and the only impediment that Congress showed any interest in preserving was the War Powers Act.
12.21.2005 8:14pm
Just an Observer:
Either the AUMF is the equivalent of a declaration of war or it is something short of that.

If it is equivalent, then Section 1811 with its 15 day limit applies.

If it is something short of that, then the construction is absurd: A state of quasi-war would grant unlimited sway to the executive, while a full-blown WWII-style declaration would rein the executive in after 15 days.
12.21.2005 8:15pm
Just an Observer:
Andrew,

Read the language of the WWI and WWII declarations. Both included sweeping language beyond the simple declaration -- language committing all the resources of the nation to the war effort.
12.21.2005 8:18pm
Medis:
Andrew,

Actually, I think (b)(2) is not just about (b)(1), but also (a)--meaning that (b) in general is about making sure (a) is read within the context of the War Powers Resolution. So, (b)(1) provides that the authorization of (a) is consistent with the framework of the War Powers Resolution in the way that it authorizes the use of military force, and (b)(2) provides that (a) does not supercede any of the requirements of the War Powers Resolution. Indeed, that is what the title of (b) says: it is about the War Powers Resolution Requirements.

And again, I'm not sure I follow your logic. I think your point is that with my reading--that Congress literally just meant what they said, that all the other requirements of the War Powers Resolution still applied after (a) and (b)(1)--they could have achieved the same effect more briefly by omitting the "of the War Powers Resolution" part.

But there is no general "rule of brevity" which says Congress must say things in the more economical manner possible. Indeed, there is always plenty of rendundancy in statutes simply in virtue of titles.

And in any event, the logical implication of this limiting language ("of the War Powers Resolution") is just that (b) in general, and (b)(2) in particular, is consciously neutral about all other requirements besides the requirements of the War Powers Resolution. And I don't see how you get from that conscious neutrality to the idea that there must be something else the Congress actually intended to supercede.
12.21.2005 8:21pm
Andrew Hyman (mail) (www):
Just an Observer, I don't see why the AUMF couldn't be equivalent to a declaration of war, while also including further statutory provisions such as an express or implied grant of authority to ignore Section 1811 if that is necessary and appropriate to prevent future terrorism by the perpetrators of 9/11. Why can't a declaration of war include an additional section that changes the law any way Congress wants?
12.21.2005 8:23pm
Just an Observer:
A declaration of war typically does include sweeping authorizations, but it remains a declaration of war.

Here is language that was in the WWII declaration: "All of the resources of the country are hereby pledged by the Congress of the United States."

And such a declaration of war unarguably would trigger Section 1811.
12.21.2005 8:27pm
Medis:
Just an Observer,

I think your point about 50 USC 1811 is a great one. This is just another example of how FISA is not some obscure civilian law, but rather a law which defines what the Congress thinks is necessary and appropriate in times of extreme threats to national security and indeed war.

So again, the basic point is that it is not hard to read the 2001 AUMF as consistent with FISA and the other applicable federal laws, provided that you take FISA et al to define what the Congress means by "necessary and appropriate force". You only create a conflict if you assume that the 2001 AUMF authorized more than what FISA et al would allow, and then ask if FISA et al can take something away from the 2001 AUMF.

But since the plain language of the 2001 AUMF does not specifically authorize more than what FISA et al would allow, the conflict is avoidable, and all the statutes can be read together. And this is almost certainly what the Congress intended, given the amendment of FISA in the USA-PATRIOT Act after the 2001 AUMF.
12.21.2005 8:31pm
Medis:
Andrew,

The question is not whether the Congress COULD repeal 50 USC 1811 at the same time they declared war or otherwise authorized military force. Obviously, they COULD do that.

But the relevant question is whether they DID repeal 50 USC 1811 when they passed the 2001 AUMF. And since they did not do so explicitly, you are left with the possibility that they did so implicitly. But the problem with that contention is that there is no necessary implication to that effect, and indeed it is easy to read 50 USC 1811 and the 2001 AUMF consistently simply by assuming that 50 USC 1811 defines what the Congress believes is necessary and appropriate.

So, since this conflict is entirely avoidable on a plausible reading of all the relevant statutes, including the 2001 AUMF, this would seem to be the best reading.
12.21.2005 8:36pm
Andrew Hyman (mail) (www):
Medis, first of all, it is implausible to read the AUMF and the FISA as not "conflicting" with each other, if compliance with FISA would prevent the President from performing his duties under the AUMF.

Secondly, here's that last sentence of the AUMF: "Nothing in this resolution supercedes any requirement of the War Powers Resolution." The first seven words do not mean the same thing as all twelve words. So, this isn't simply a matter of being brief or not being brief. The last five words change the meaning of the sentence. In contrast, the meaning of the first seven words would not have been changed if Congress had verbosely written this: "Nothing in this resolution supercedes any requirement of the laws of the United States enacted pursuant to the Constitution which was first ordained and established in 1789." My point is that the words "of the War Powers Resolution" are significant, they change the meaning of the AUMF, and they pointedly allow requirements of other statutes to fall by the wayside when that is necessary and appropriate.
12.21.2005 8:48pm
Apodaca:
For anyone who thinks that using a draft folder on a web-based email service as a "dead drop" is an effective means of evading surveillance, here's a clue.
12.21.2005 8:58pm
Medis:
Andrew,

I think you are confusing a couple issues. First, the question under the 2001 AUMF is not what "duties" it imposes on the President, but rather what uses of force it "authorizes". And it only authorizes "necessary and appropriate" uses of force. My point is just that if one takes FISA et al to define what the Congress believes is "necessary and appropriate," then there really is no conflict--the 2001 AUMF doesn't authorize anything that FISA et al would prohibit.

Second, I think you rightly contend that the language of (b)(2) would "allow" the language of (a) to repeal or amend other statutes besides the War Powers Act. But that language of (b)(2) does not REQUIRE that the language of (a) repeal or amend any other statute. In other words, because of the limitation you note--the last five words--(b)(2) is simply neutral on the issue of what (a) does to other statutes.
12.21.2005 9:04pm
The Ace:
Hey, am I "making up" stuff tonight or what?


Si senor.


Examples?

Oh, you have none.
Sorry.

Ace -- just because Clinton did it doesn't make it legal. So cut the BS already with that one.


Huh?
So you suggesting it's illegal makes it so?

Also, if you re-read my comments, I said "argued" it was legal.

However, the burden is on you to demonstrate it is illegal.

You're not only not in the neighborhood, you're not in the country of doing so.
12.21.2005 9:16pm
The Ace:
I'm suggesting that no one can offer anything remotely approaching a definitive opinion on the legality of the program unless they knew a number of things that are simply not on the public record.


By far the most appropriate comment on the topic thus far.

Which is, as Professor Kerr suggests, a reason the Administration is not arguing this publicly.
12.21.2005 9:19pm
Andrew Hyman (mail) (www):
Medis, I continue to believe that you are construing the last five words of the AUMF in a way that impermissibly renders them surplusage, whereas they were clearly intended to change the meaning of the sentence in which they were used.

Additionally, if complying assiduously with FISA would make it impossible for the President to prevent “future acts of international terrorism against the United States,” then I sincerely doubt Congress would have intended the President to put FISA first, or that Congress would have considered it “necessary and appropriate” for the President to put FISA first.
12.21.2005 9:19pm
subpatre (mail):
As of this date Congress, the President, and seven Supreme Court Justices (at minimum, opinions in Hamdi v Rumsfeld) believe that war is Constitutionally declared. The AUMF's author has been as explicit about that as the English language allows:
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, and author of many books on separation of powers. Definately not a Bush supporter!

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; then in June's edition of comments Ryan Goodman and Derek Jinks accept the declaration of war, but delve into some of the reporting requirements.

War has been declared.
12.21.2005 9:43pm
Medis:
Andrew,

I don't see why you think it is "surplusage". I do think that the limitation means that (b)(2) is neutral with respect to the effect of (a) on every other requirement besides the War Powers Resolution requirements. In contrast, without the limitation, (b)(2) would no longer be neutral with respect to other requirements--it would save all of them. So, I think that is the effect of the limitation: it makes (b)(2) neutral with respect to any other requirements.

And honestly, I don't even think your hypothetical without the limitation makes any sense. (b)(2) would then read, "Nothing in this resolution supercedes any requirement." As someone who has read a lot of poorly drafted statutes, I can tell you that would still strike me as exceedingly odd. "Requirement" can mean a lot of things, and without any sort of clarification of that provision, I would have no idea what your proposed (b)(2) was supposed to do.

In other words, if someone told me, "Write a provision that says that the 2001 AUMF does not supercede any of the requirements in the War Powers Resolution," I would never write, "This resolution supercedes no requirements." That would be horribly unclear, and I would have no expectation that people would know that I was talking about the requirements of the War Powers Resolution. Rather, I would write something like, "This resolution does not supercede the requirements in the War Powers Resolution." Which is just what (b)(2) says.

So seriously, Andrew, if you were asked to write a provision saying that the 2001 AUMF did not supercede the requirements of the War Powers Resolution, what would you write? Would you really not use the phrase "requirements of the War Powers Resolution" because that would be "surplusage"?

Finally, I agree that if Congress had believed that the provisions of FISA would make it "impossible" for the President to prevent future acts of terrorism, then they would not have considered FISA to be necessary and appropriate. But there is no evidence that they believed any such thing. Rather, we have extremely good evidence that Congress had no such belief--the fact that they amended but did not repeal FISA in the USA-PATRIOT Act.

So, I just don't see how you can plausibly suggest that at the same time Congress was passing the USA-PATRIOT Act, and amending FISA, they actually believed that FISA had been repealed in the 2001 AUMF. Rather, it seems clear that Congress saw both the 2001 AUMF and the USA-PATRIOT Act as consistent elements in a necessary and appropriate legal framework for dealing with the GWOT.

And nothing in the plain language of the 2001 AUMF suggests that we need to read it any other way.
12.21.2005 9:57pm
Medis:
By the way, Andrew, as usual I am enjoying our exchange. But I think we may have mined the language of the 2001 AUMF for all it will yield on its own.

So maybe I can suggest a different question. I believe you suggested the other day that "necessary and appropriate" may provide a limiting principle, and that a court might consider enforcing it as such. Where do you think the court would, or should, look for a definition?

In Hamdi, O'Connor basically just answered the question with her own intuition, which is one possibility. My suggestion here has been that since this is a statutory interpretation issue, a court might look to other things Congress was doing, such as amending FISA in the USA-PATRIOT Act, and infer from those activities what Congress meant by "necessary and appropriate".

So, as an open ended question, do you have any preferred alternatives?
12.21.2005 10:40pm
Andrew Hyman (mail) (www):
Medis,

You said: "if you were asked to write a provision saying that the 2001 AUMF did not supercede the requirements of the War Powers Resolution, what would you write?" Assuming that my boss insisted upon being vague about whether the AUMF should supercede any other requirement (e.g. FISA), then I might write this: "Nothing in this resolution supercedes any requirement of the War Powers Resolution, and nothing in this sentence shall be construed to affect any other requirement." However, if my boss was Medis, and Medis insisted that the AUMF should supercede neither the War Powers Resolution nor any other requirement, then I might write this: "Nothing in this resolution supercedes any other requirement" (feel free to delete the word "other" for brevity).

Incidentally, I'm not suggesting that the AUMF repealed any part of the FISA, but rather am suggesting that the AUMF superceded the FISA only as applied to situations where FISA prevents the use of "all necessary and appropriate force" against Al Qaeda. So, it made perfect sense for Congress to treat FISA as unrepealed, even subsequent to passage of the AUMF.

The plain language of the 2001 AUMF suggests that Congress was primarily interested in preserving the War Powers Act, rather than in preserving FISA (including FISA's 15-day wartime limit on warrantless searches). The plain language of the AUMF also suggests that Congress was concerned that the need for "necessary and appropriate force" might be construed to supercede the War Powers Act absent a statement to the contrary. Congress went out of its way in the last sentence of the AUMF to make clear that it was preventing the War Power Act from being superceded without preventing other statutes from being superceded.

Anyway, that's about as clearly as I can put it. Thanks for the conversation.
12.21.2005 10:54pm
anonymouslawyer (mail):
Let me second A.S.'s request that Professor Kerr discuss the relevance of the FISA Court of Review's decision, which assumes the President has the "inherent authority to conduct warrantless searches to obtain foreign intelligence information" and, given this, "that FISA could not encroach on the President's constitutional power." In re Sealed Case, 310 F.3d 717, 742 (FISCR 2002). It appears that the FISA Court of Review may have read the precedents which Professor Kerr distinguishes somewhat more broadly. Regardless, in the absence of a pronouncement by the Supreme Court, this appears to be the most recent and most relevant authority on the question whether the President does have the inherent authority to conduct warrantless searches, and whether that power could override a countervailing Congressional statute. Indeed, that is in part the argument advanced today by John Schmidt, the Associate AG in the Clinton Administration, in his Chicago Tribune op/ed arguing that the program at issue was lawful. I am very intrigued to hear Professor Kerr's views on this decision.
12.21.2005 11:03pm
Medis:
Andrew,

I understand that you have left this exchange, so I don't expect a response. I just wanted to mention that I think being "vague" about a lot of possible issues--or, as I would say, "neutral" with respect to those issues--is often exactly what people drafting legal language want. The basic principle would be that it is not always a good idea to try to decide every possible issue all at once.
12.21.2005 11:03pm
Andrew Hyman (mail) (www):
Agreed.
12.21.2005 11:09pm
Charlie (Colorado) (mail):
Apodaca, the fact that a dead drop can be compromised doesn't prove that, with good tradecraft, it's not very hard to compromise. If one were to, oh for example, capture al Zawahiri's laptop and read the history off the browser, one might find such a thing very quickly.

Having done so, if we're to believe some of the "violated FISA" arguments, you would then need to apply to the FISC for a warrant, since the servers for hotmail are hosted within the US.

Thinking about it, this sounds like it might in itself be a place where FISA and the exigencies of wartime are in conflict.
12.21.2005 11:15pm
Apodaca:
Charlie, I don't disagree that a cyber dead drop might be hard to identify in the first place. Once you've got it pinned down, though -- and it's in the US -- surveilling it is a piece of cake. That is the lesson of the wiretap order entered against the webmail drop used by Kopp &his aiders/abettors.

As for your point about jihadists abroad using, say, Hotmail to communicate via dead drop: exactly what conflict do you see presented? Any reason you think warrantless monitoring couldn't be conducted under section 1802?
12.22.2005 8:35am
Neal Lang (mail):
(There's a fun Fourth Amendment question: Assuming no border search exception or national security exception, does an individual have a Fourth Amendment reasonable expectation of privacy against intercepting their satellite communications in space? Does it matter whether the satellite orbits the earth outside the United States?)

Apparently not, as "outer space" is not US territory by treaty, to wit:
Article II

Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. From: Treaty on Principles Governing The Activities Of States In The Exploration And Use Of Outer Space, Including The Moon And Other Celestial Bodies - January 27, 1967

The treaty was signed by the US and ratified by the Senate in 1967.
12.22.2005 9:53am
Neal Lang (mail):
Judicial approval for warrants, subpoenas, and wiretap orders prevent the executive from abusing his power and subverting the tripartite government.

Really? Does anyone recall the events at Waco, TX persuant to a Judicially approved "Search and Arrest Warrant"? Perhaps this might help:
Executive Summary

On February 28, 1993, a force of 76 agents from the Bureau of Alcohol, Tobacco, and Firearms tried to storm the residence of a religious group known as the Branch Davidians. A firefight broke out, and there were deaths and injuries on both sides. The ATF maintains that its agents were ambushed while the Davidians claim that they were fired upon without provocation, feared for their lives, and acted in self-defense.

The Branch Davidian residence was subsequently surrounded by federal and state authorities and the Federal Bureau of Investigation assumed control. Weeks went by as the FBI and the Davidians engaged in negotiations to resolve the standoff peacefully.

On April 19, 1993, Attorney General Janet Reno gave the FBI permission to flush the Davidians out of their residence. FBI agents used tanks to smash holes in the walls of the building and then sprayed tear gas into the residence. Agents also used hand-held grenade launchers to fire more than 350 "ferret" rounds into the windows of the building, but none of the Davidians obeyed the FBI's command to exit the residence. A fire then broke out, and 76 Davidians, including 27 children, perished.

That incident—which is now referred to simply as Waco—has become the most controversial law enforcement operation in modern American history. Although the "official" investigation of the incident now places all of the blame for the carnage on the Branch Davidian leader, David Koresh, numerous crimes by government agents were never seriously investigated or prosecuted. If those crimes go unpunished, the Waco incident will leave an odious precedent—that federal agents can use the "color of their office" to commit crimes against citizens. From: No Confidence - An Unofficial Account of the Waco Incident

Based on the known evidence, apparently the Branch Davidians' most aggreous crime was being a strange Christian Sect. Had they been fundalmentalist Muslims, at least the abuses perpetrated upon them by their government may gotten a "fair" hearing in the MSM. In any event, this tragedy and "human rights" abuse was apparently legal and people friendly because it had the requisite "Judicial Seal of Approval". Of course, that is small comfort to the 80 innocents (including the ATF agents) that had their "unalienable" right to life terminated with "extreme prejudice". Especially considering the flawed "warrant applications" used to induce the "Judicial Seal of Approval", and the fact that those who violated the public trust were never called to account for their "murderous" civil rights violation. For a comprehensive review of the "flawed warrants" see:

How to Prevent More Wacos

THE UNWARRANTED WARRANT: THE WACO SEARCH WARRANT AND THE DECLINE OF THE FOURTH AMENDMENT

Justice for Waco and Oklahoma City

Knock Knock

Personally, I would want to allow sufficient leeway to permit law enforcement and National Security to function efficiently to protect the "public safety". However, I also want to see that all abuses of the public trust, as in the case of Waco, be sanctioned with stiff penalties for the violators. In the cases like Waco, were Federal Law Enforcement abuse caused the death of some 80 innocent people, the underlying "perjury" on the Search and Arrest Warrants should trigger 2nd Degree Murder or at least Manslaughter charges, with additional civil remedies for the victims families. Perhapst least then would those who the public has entrusted with its "safety" have second thoughts about abusing the People's "civil rights". Unfortunately, the lessons learned from Waco are that if all the Federal Law Enforcement agencies stick together, "stonewalling" inquiries and destroying evidence, and if the Media insist on defending the Administration, then the government can get away with murder!
12.22.2005 11:36am
Aaron:
Ace
"However, the burden is on you to demonstrate it is illegal.

You're not only not in the neighborhood, you're not in the country of doing so."

Actually, warrantless intrusions are per-se illegal, unless they fall within an exception. Therefore, Ace, YOu must prove that it is LEGAL.
12.22.2005 2:39pm
Charlie (Colorado) (mail):
As for your point about jihadists abroad using, say, Hotmail to communicate via dead drop: exactly what conflict do you see presented? Any reason you think warrantless monitoring couldn't be conducted under section 1802?

Oh, no, sorry to be confusing (or confused.) I think the "agent of a foreign power" exception of 1801(b) applies, and thus intercepts under 1802 are legal.
12.22.2005 2:53pm
18 USC 1030 (mail):
Neal thank you for the correction. Perhaps I should have said they help to protect against.... or assist in the protection... or some such
12.22.2005 6:13pm
Neal Lang (mail):
Neal thank you for the correction. Perhaps I should have said they help to protect against.... or assist in the protection... or some such

My pleasure. Considering the Brave New World thinking of many in the Judiciary, it provides me little comfort that my rights are any more secure in the hands of an unelected, life tenured, judge, than with CiC, whose primary duty is to secure the "public safety", and who at least must face the voters. Judges have the authority to permit searches, but have no corresponding responsibility if their rejection of warrant requests contribute to the success of terrorists' plots, or if the "no knock search warrants" they do issue become "death warrants" for the innocent. The President's performance, and not the Judge, will be critiqued by the next "9/11 Commission" that will surely follow any successful massive terrorist attack on our soil. And rightly so, as the Constitution holds POTUS uniquely responsible for all "public safety" failures.

Frankly, I would be a lot more impressed with Judge issued "Search and Arrest Warrants" if the Judge who had been lied to in order to get that "deadly" Waco warrant issued would have filed a pejury complaint against the BAFT agents who falsely testified to him on the "facts" regarding the alleged crimes of the Branch Davidians.

If the "warrant" issuance process had a proper accountability regime - both the judge ordering or rejecting a "warrant", and the law enforcement officers preparing and swearing to the accuracy of the warrant application would be subject to sanctions. If a judge arbitrarily rejects a warrant, and this rejection leads to public harm, there should be a penalty for the judge. If the LEO's commit pejure themselves on a warrant application, they to should be held liable for their crime. However, I won't hold my breath.

That said, with regards to "intelligence gathering" related to the "War on Terror", I believe if we are to hold the President responsible for failures to secure the "public safety", then I believe also he deserves our deference and leeway in determining the "sources and methods" he must use to collect the information needed to fulfill his duties.

The current brouhaha over the NSA recording the telecoms of foreign al Qaeda resources with so-called "US persons" is truly partisan politics at its worst. The same Democrat leaders who had no problem - with the "human rights" abuses at Waco; or by the Clinton White House "bouncer" (who no one will admit hiring) accumulating some 900 FBI secret clearance files, including "raw field reports", on high profile Republicans for no good reason that anyone could explain; or by the fact President Clinton executed an Executive Order (#12949) eliminating the requirement for a judicial warrant to carry-out domestic physical searches, instead relying solely on the word of Janet Reno (the very person who orchestrated the coverup of Federal wrong doing in the Waco Massacre) - now think that US National Security types "listening in" on terrorists plotting on international phone calls is tantamount to the end of liberty as we know it. BULL!

When the Founders wrote the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" - they did not have in mind the terroists who have declared war on "the People" and are sworn to bring-down our society by destroying "the People's" lives, liberty, and property. None of the Founders believed that anyone had the "right" to do evil, much less terrorists plotting to violate the "public safety". How anyone who has sworn their allegience to a foreign power that is dedicated to destruction of our Nation could be considered a "US person", is beyond me.

I say, give the President the leeway he requests, and should he abuse that trust by injuring the innocent - apply the most severe sanctions possible. This is how T. George Tucker, Law Professor, William and Mary University and Virginia General Court Judge, describes the responsibility of the President in 1803 when it comes to "public safety" failures:
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: BLACKSTONE'S COMMENTARIES: WITH ST. GEORGE TUCKER 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.

Obviously, along with the this great "responsibility" must be a commensurate "authority" to act in the National Defense.

The way the Democrats are distorting this "non-crisis" it makes one wonder if maybe some of the Democrat Congressional Cacus might be on the receiving end of some of those al Qaeda phone calls.
12.22.2005 10:21pm
Neal Lang (mail):
The government, in order to maintain the social contract with the people, ought to always err on the side of protecting rights.

And just what "rights" are "governments instituted among men" to secure? Arguable man's most important right is his "right to life". All other rights, including some nebulous "right of privacy", fall a long way down the list from "life" as the are quite meaningless without it.

Personally, I would much happier if my tombstone didn't read: "He died violently at the hands of terrorists, but his government insured his 'right of privacy'."
12.23.2005 12:05am
Neal Lang (mail):
The government, in order to maintain the social contract with the people, ought to always err on the side of protecting rights.

And just what "rights" are "governments instituted among men" to secure? Arguable man's most important right is his "right to life". All other rights, including some nebulous "right of privacy", fall a long way down the list from "life" as the are quite meaningless without it.

Personally, I would much happier if my tombstone didn't read: "He died violently at the hands of terrorists, but his government insured his 'right of privacy'."
12.23.2005 12:07am
Neal Lang (mail):
The government, in order to maintain the social contract with the people, ought to always err on the side of protecting rights.

And just what "rights" are "governments instituted among men" to secure? Arguable man's most important right is his "right to life". All other rights, including some nebulous "right of privacy", fall a long way down the list from "life" as the are quite meaningless without it.

Personally, I would much happier if my tombstone didn't read: "He died violently at the hands of terrorists, but his government insured his 'right of privacy'."
12.23.2005 12:07am
Neal Lang (mail):
The government, in order to maintain the social contract with the people, ought to always err on the side of protecting rights.

And just what "rights" are "governments instituted among men" to secure? Arguable man's most important right is his "right to life". All other rights, including some nebulous "right of privacy", fall a long way down the list from "life" as the are quite meaningless without it.

Personally, I would be much happier if my tombstone didn't read: "He died violently at the hands of terrorists, but his government insured his 'right of privacy'."
12.23.2005 12:08am
Neal Lang (mail):
Congressional Authorization for Use of Military Force

September 14, 2001

To authorize the use of United States armed forces against those responsible for the recent attacks launched against the United States.

Whereas, on Sept. 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad, and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence, and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States,

Whereas the president has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.

Resolved by the Senate and the House of Representatives of the United States of America in Congress assembled,

Section 1. Short Title This joint resolution may be cited as the "Authorization for Use of Military Force''

Section 2. Authorization for Use of United States Armed Forces (a) That the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2011, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (b) War Powers Resolution Requirements (1) Specific Statutory Authorization - Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution. (2) Applicability of Other Requirements - Nothing in this resolution supersedes any requirement of the War Powers Resolution.

War Powers Resolution of 1973

CONGRESSIONAL ACTION

SEC. 5. (b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

INTERPRETATION OF JOINT RESOLUTION

SEC. 8. (a) Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--

(1) from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or

All 19 of 9/11 highjackers met the definition of "US Persons" under FISA. These acts were committed on US Soil by "US Persons". These acts: were "acts of treacherous violence"; were "grave acts of violence"; and "pose an unusual and extraordinary threat to the national security".

Considering these facts does anyone suppose that the Congress did not intend that the provisions of FISA which limits the President's "authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States" with regards to acquiring "foreign intelligence" by means of "electronic surveillance" on those deemed "US persons" could not be suspended by Executive Order as being "necessary and appropriate" action on the par of the President in order to fulfill the "specific duty" ("to prevent any future acts of international terrorism against the United States by such ... persons") assigned by the Congress to the President under the 2001 AUMF?

BTW, just how does one go about protecting "United States citizens both at home" if one is restrained as to one's flexibility as to the "methods and sources" used to obtain vital tactical intelligence on wily and elusive targets who "pose an unusual and extraordinary threat to the national security"?

Only an idiot would read the 2001 AUMF as not authorizing the superceding the FISA of 1978 if the Commander-in-Chief deems such is a "necessary and appropriate" "action to deter and prevent acts of international terrorism against the United States"!
12.23.2005 1:53am
Neal Lang (mail):
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,... .

However, no person, citizen or otherwise, has a right to expect to be "secure in their persons, houses, papers, and effects" against warrantless searches and seizures, when clearing US Customs. Why? Well, obviously the government has a "compelling State interest" to collect the appropriate import duty (along with stopping drugs and any fresh fruits and veggies from getting into the country). The applies when leaving the country with more than a certain amount of currency as you must, by law, declare it in writing. Again, the reason the government can insist that you report these currency transfers is the "compelling State interest" in managing the country's currency, but more importantly to prevent "illegal" money-laundering. What makes anyone think the collecting import duty; or curtailling drug trafficking; or preventing diseased produce from entering the country; or preventing money-laundering represent a greater "compelling State interest" than preventing another 9/11 attack.
12.23.2005 2:41am
JohnEMack (mail):
Your statement that there are not many cases involving searches and seizures of American citizens overseas overlooks a fruitful and well-developed area of law -- military criminal jurisprudence under the UCMJ. The military has many Status of Forces Agreements ("SOFAs") that give a partial grant of jurisdiction to American authorities over troops living on and off base, and it is quite common for troop residence to be searched both on and off base. Naturally, the defendant brings up the search issue with regularity. Because the constitution does not apply with full force (a) overseas and (b) to the military with respect to its servicemembers, the jurisprudence is rather complicated and not completely on point. Nevertheless, the general line of cases is that ordinary barrracks searches on base are roughly governed by the fourth amendment, while searches off base tend to be analyzed under a "silver platter" type analysis. It is a lot more convoluted than this, but at least most of the issues you are dealing with get a rather complete discussion there.
12.23.2005 9:05am
18 USC 1030 (mail):
You all should remember that the definition of Agent of a Foreign Power under FISA is not the definition that which was devised by the legislature in 1978. Section (I believe) 203 of the USA PATRIOT ACT added the provision for terrorism; therefore, those whom carried out the 9/11 attack did not fit into the this definition.
12.23.2005 2:38pm
Crutchlow (mail) (www):
In regards to Senator Larry Craig on Rush Limbaugh; snead16 and Greed Clerk miss the point. I have yet to see the details of what kind of spying is going on. The news media has given no details (that I have heard, please correct me), and all types of mud is being thrown against the wall.

So by quoting something said on Rush's program, I'm 'criminally stupid, administratio (sic) apologist'. (Hey, Eugene, since I'm an old-time MPEX user and supporter of your mothers cook books, can you help me with a libel case here?)

snead16/Greed Clerk, would it make a difference if I heard it on Amy Goodman's show (KPFA in Northern California, and yes, I do listen)?

When Richard Jewell successfully sued Piedmont College, CNN, ABC, NBC, and the Atlanta Journal-Constitution, the new media had to admit that 50% of what they said was misleading or out-and-out wrong. When going after a story like this, they need to get the story right and in full.

Back in July, 2003, Senator Rockefeller sends a letter to VP Cheney stating his concerns. Why does it take two years for this to come out? Where's the checks and balances? Looks more like CYA than helping to further the cause (unless the cause is to win the next election).

I understand there is a need for secrecy regarding national security. But now the administration needs to review this with either/both the judicial and/or legislative branches to settle the issue.
12.30.2005 10:44pm
Crutchlow (mail) (www):
In regards to Senator Larry Craig on Rush Limbaugh; snead16 and Greed Clerk miss the point. I have yet to see the details of what kind of spying is going on. The news media has given no details (that I have heard, please correct me), and all types of mud is being thrown against the wall.

So by quoting something said on Rush's program, I'm 'criminally stupid, administratio (sic) apologist'. (Hey, Eugene, since I'm an old-time MPEX user and supporter of your mothers cook books, can you help me with a libel case here?)

snead16/Greed Clerk, would it make a difference if I heard it on Amy Goodman's show (KPFA in Northern California, and yes, I do listen)?

When Richard Jewell successfully sued Piedmont College, CNN, ABC, NBC, and the Atlanta Journal-Constitution, the new media had to admit that 50% of what they said was misleading or out-and-out wrong. When going after a story like this, they need to get the story right and in full.

Back in July, 2003, Senator Rockefeller sends a letter to VP Cheney stating his concerns. Why does it take two years for this to come out? Where's the checks and balances? Looks more like CYA than helping to further the cause (unless the cause is to win the next election).

I understand there is a need for secrecy regarding national security. But now the administration needs to review this with either/both the judicial and/or legislative branches to settle the issue.
12.30.2005 10:45pm