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FISA Court Judges to Be Briefed on NSA Program:
According to a front-page story in the Washington Post, members of the FISA court will receive a classified briefing "to address their concerns about the legality of President Bush's domestic spying program." I thought this was a particularly interesting excerpt from the story:
  The judges could, depending on their level of satisfaction with the answers [to their questions on the legality of the NSA program], demand that the Justice Department produce proof that previous wiretaps were not tainted, according to government officials knowledgeable about the FISA court. Warrants obtained through secret surveillance could be thrown into question. One judge, speaking on the condition of anonymity, also said members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass the court.
  (emphasis mine)

  I'm guessing that the judge in the last sentence isn't a big fan of the Administration's Article II argument.

  UPDATE: Marty Lederman offers his thoughts on the Article II argument, including the In re Sealed Case dictum.
A.S.:
On what authority could they "disband" a court created by statute?
12.22.2005 12:02pm
No Tyrants (mail):
If they disband, Bush will just have Roberts stack it with apologists for unfettered executive power and the issue will go dark again.
12.22.2005 12:03pm
catnapping (www):
disband the court, cuz ol' GW says he's allowed to circumvent them?

geez.

why not just disband congress then? and while we're at it, i guess the constitution's just a pain in the ass. after all, GW doesn't seem to think we need it anymore, either.
12.22.2005 12:09pm
Medis:
A.S.,

I think the idea would be that they could suggest it to the President, and then he could use his Article II powers to order disbanding the court despite the statute. Of course, I think Orin is right that this judge is not a fan of the President's argument about FISA, and is trying to highlight the potential problems with that argument.
12.22.2005 12:09pm
Arthur (mail):
Since the Court was created by legislation, in can be disbanded by the judicial branch only if there is a Court ruling that it is unconstitutional (as sort of happened to the Bankruptcy courts in 1978). Whether a Judge on the Court can declare it to be unconstitutional and also retain jurisdiciton sufficient to order disbandment is the kind of problem we used to talk about in law school only when stoned.

I'd guess the actual judge only means he would recommend to Congress that the Court be disbanded.
12.22.2005 12:10pm
af -- other one:
why would there be a criminal-procedure type exclusionary rule for the FISA court. Seems probably wrong to me.
12.22.2005 12:17pm
dana (mail):
help me understand something please

ive been out of law school for ten years and have never practised, so maybe my memory is fuzzy, but dont warrant requirements only refer to using the evidence acquired in the search AGAINST the person searched or tapped IN a criminal prosecution?

they arent tapping al quaida suspect phones for the purpose of arresting and prosecuting them but to hopefully find out what they are planning to do before they do it and thwart them. is all of this "warrant stuff even relevant?
12.22.2005 12:19pm
Defending the Indefensible:
No Tyrants:

If they disband, Bush will just have Roberts stack it with apologists for unfettered executive power and the issue will go dark again.

I think you misunderstand Roberts jurisdiction. He does not serve at the pleasure of the President. He is himself the presiding officer of a co-equal branch of government.
12.22.2005 12:20pm
Shelby (mail):
I don't know how much practical difference there is between the court disbanding itself, and the court recommending it be disbanded while all the judges immediately quit. If it's not formally disbanded by a competent power, would that simply create a set of open positions for Roberts or whomever to fill? Again, what's the practical upshot?
12.22.2005 12:27pm
No Tyrants (mail):
DTI,
Let me rephrase:

If they disband, Roberts will stack it with apologists for unfettered executive, as Bush knew he would when he appointed him.

So is bush "having him" stack it? No. But Roberts will stack it, and that will be what Bush intended. Same result, though.

The Senate should immediately put a brake on confirmation of any of Bush's Supreme Court picks, including Alito, until Bush's claim of unfettered executive power is resolved, and any findings of criminal conduct dealt with.
12.22.2005 12:30pm
Defending the Indefensible:
Dana:

ive been out of law school for ten years and have never practised, so maybe my memory is fuzzy, but dont warrant requirements only refer to using the evidence acquired in the search AGAINST the person searched or tapped IN a criminal prosecution?

This is a limited remedy that seeks to prevent constitutional violations from being encouraged, however the fourth amendment prohibition is general in application.

Since no warrants issued in this case, we can focus on the first part of the amendment wording:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...

What has yet to be established by the courts is whether the searches performed by the administration were reasonable. If they were not, it is unclear whether the judiciary has any remedial authority apart from issuing a declaratory judgment, but that might be sufficient and a good basis for congressional action (i.e., articles of impeachment).
12.22.2005 12:33pm
Defending the Indefensible:
NT,
I think you underestimage Roberts' independence.
12.22.2005 12:36pm
100 Things of Cheese (mail):
I don't see how they could "disband" without some authorizing statute or expiration of the original statute.

They could simply not serve, effectively walking out on strike. That would create another crisis, with upcoming cases being denied due process, in turn forcing the CJ to name new judges, and maybe prompting Congress to start impeachment hearings. The hearings themselves would have to be secret, since the testimony would cover classified material.

It seems more like a posturing statement to the president, instead of a real threat.
12.22.2005 12:37pm
Defending the Indefensible:
underestimate, even
12.22.2005 12:37pm
Thales (mail) (www):
Defending and Dana:

As others have pointed out on other threads, the remedy could also be a Bivens suit (the analog to section 1983 actions, but against the federal government) for damages or an injunction. The availability of this remedy is independent of any warrant requirement or the criminal law exclusionary rule. (This was not so historically, see the work of Telford Taylor, Richard Posner, and Akhil Amar, among others, on the Fourth Amendment and the Supreme Court's mistaken collapsing of the reasonableness and warrant clauses).
12.22.2005 12:39pm
Shannon Love (mail) (www):
I think the discussion over Article II powers of the executive hinges on the time scales involved.

I think there is a huge practical differences between the actions a President might take in an unexpected short-term emergency and actions that become a day-to-day standard practice. The executive has a long history of overstepping its normal boundaries in times of crisis only to be drawn back as the immediate crisis fades. Lincoln suspended habeas corpus but it didn't stay suspended long.

The answer to the question of: "Does the President have the power under Article II to do X" is almost always, "Yes, for a short while." The real debate is over when to either stop doing X or formalize it through legislation.
12.22.2005 12:48pm
cfw (mail):
Why did the judges not get briefed informally as this "national secuirty exception" activity unfolded?

If Bush felt he had to (and could) brief 14 folks in Congress, why not also brief 11 members of the judiciary?

It is hard to see much point in having a non-adversarial process by a group of 11 judges who get no real-time briefings on all "national security exception" searches conducted by the Government that relate to the work they have done or are doing.

I suppose the Court could in effect conditionally disband (or limit its intake of cases) by refusing to rule on requests unless and until the Government commits to more global briefings (affidavits under penalty of perjury) about all the "national security exception" monitoring or detection related to the warrant request (going back to 9/11/2001).

The Court probably just needs to promulgate a court rule or general order, eh?

The order or rule could and should require disclosure about the results of the "search", "detection" or "monitoring", by affidavit covering who, what, when, where, how, why.
12.22.2005 12:52pm
Roger Schlafly (www):
Bush claims the power to bypass FISA for war-related spying, but he still wants the FISA court to facillitate developing evidence that might be used in a criminal case. There is no reason for the FISA court to disband.
12.22.2005 12:56pm
A. Nonymous (mail):
1) Court disbanding itself: I think this might come from an inherent powers argument, namely, that while legislation created the court, the judges themselves are responsible for it.

As such, disbanding could happen in a few ways. First, would be a mass resignation. True, the "slots" would be vacant, but the idea would be no reputable judge would accept placement on the court again.

Second, would be an order entered onto to the record by the judges sitting en banc that the court itself is unlawful or unconstitutional and that it is disbanded fully. Legal historians might be able to draw references to England, but I believe colonial Virginia had a similar circumstance whereby the legislature attempted to in effect demote their highest court to that of a middle appellate and create a new one on top or some such. When the judge's balked, the legislature cut their staff. The court itself, through Edmund Pendleton, in essence struck the new court scheme down in an pre-Marbury form of judicial review.

A third way , previously alluded to, would be a sit down strike. Decisions either don't come or don't come fast enough. Of course, the trouble is it is NOT an impeachable offense. The Federal Judicial Conference was created by CJ Taft and others to pressure privately (and rarely publically) Federal judges to move their cases along precisely because there was a recognition a judge's refusal to rule or rule quickly was not reviewable or impeachable. It would amount to a legislative stick-up: Give me the decision or else I'll plug ya full of Bills of Impeachment. Arguably, not even a writ of mandamus from a higher court could compel a lower court to rule. Fish in Politics of the Federal Judiciary lays out the Federal history on this very well.

Of course, that order would theoretically be appealed

2) (Repeat from other post) The request (demand?) of the FISA court for a briefing is interesting from an institutional standpoint I think. I cannot imagine, say, the entire bench of the Southern District of New York gathering together and getting briefed by the US Attorney in Manhattan on the subject of the FBI or US Attorney's practices. In the midst of a particular case, I can see an individual SDNY judge demanding a complete and total explanation as to a given search of a home or even generally how search warrants of homes are executed. But en banc like this outside the context of specific case? Talk about an institutional shove, plus the questions it raises.

3) The fight that will make the front page will be the Executive vs. the Congress (although the WaPo article was page A1 today). The fight I'm much more interested in is the "undercard"; the Judiciary as a branch/body/institution vs. the Executive.
12.22.2005 12:56pm
Medis:
Shannon,

I also think an interesting question arises if the emergency is "expected", and the relevant law has emergency procedures in place which the government is supposed to follow.
12.22.2005 12:59pm
Greedy Clerk (mail):
I would guess that the journalist did not fully convey exactly what the judge was saying. He probably meant that they would all resign and thus disband -- or may have just been saying it half seriously, i.e., "might as well just disband this court if the President is right."
12.22.2005 12:59pm
A.S.:
No tyrants: "If they disband, Roberts will stack it with apologists for unfettered executive, as Bush knew he would when he appointed him."

I would characterize this as a plausible interpretation (although I would disagree with it).

Nonetheless, No Tyrants missed his chance at preventing it. He should have prevented Bush from being reelected, or prevented Roberts from being nominated and confirmed. Too late for No Tyrants now.
12.22.2005 1:00pm
A. Nonymous (mail):

If Bush felt he had to (and could) brief 14 folks in Congress, why not also brief 11 members of the judiciary?


This is uncharted territory as I noted above. It would be inconceivable for a US Attorney to "brief" the entire SDNY bench on its practices because every defense lawyer on earth would point to it as inappropriate ex parte communications. Briefing the Chief of a court is only slightly less so and even then I cannot imagine a case where that would be ok.

FISC is obviously different in many ways, it is far mroe ex parte then a standard court and secret to boot. But by the same token it is still a court, these judges sit there by designation (i.e. they are still hearing regular cases back home in their home districts) and as such probably don't feel as comfortable. Of course now that's obviously changed just a tad...
12.22.2005 1:02pm
A.S.:
1) Court disbanding itself: I think this might come from an inherent powers argument, namely, that while legislation created the court, the judges themselves are responsible for it.


I love it. A court asserting its "inherent powers" in protest of the President asserting his "inherent power".

Seems to be a problem no? I mean, if a court has "inherent power", why shouldn't the President? And if the Court thinks the President doesn't have any "inherent power" in the face of a contradicting Legislative act, why should the court itself have any "inherent power" in the face of a contradicting Legislative act?
12.22.2005 1:04pm
TC (mail):

Second, would be an order entered onto to the record by the judges sitting en banc that the court itself is unlawful or unconstitutional and that it is disbanded fully.


If a court declares itself unconstitutional, by what authority does it have to disband itself? ;)
12.22.2005 1:05pm
A.S.:
UPDATE: Marty Lederman offers his thoughts on the Article II argument, including the In re Sealed Case dictum.

Shorter Marty Lederman on the In re Sealed Case dictum: it's wrong because Laurence Silberman probably wrote it.

Not very convincing, Marty.
12.22.2005 1:08pm
A2 Reader:
Question:

When the Court is refered to as a 'secret' court, does that mean that the Judges that sit thereupon are secret, or merely that the proceedings before the court are under seal?
12.22.2005 1:08pm
A. Nonymous (mail):

Seems to be a problem no?



Not really no. The question isn't both asserting inherent powers, but are they correct in doing so?


I mean, if a court has "inherent power", why shouldn't the President?


Both the courts and the executive do have inherent powers. The only debate is which and to what extent. No one, or no thinking person, is saying the President doesn't have some powers inherent to his office. But the question is do they extend to the NSA actions? Ditto the court.


And if the Court thinks the President doesn't have any "inherent power" in the face of a contradicting Legislative act, why should the court itself have any "inherent power" in the face of a contradicting Legislative act?


Because it is inherently the judicial department's perogative to say what the law is. The President, some would argue, has no such similar right. Moreover, there's nothing in the FISA statute (that I know) that says when the court will sit, how long, when in session, etc. Where it is silent, the court has the authority to set its own rules of procedure, times of sitting, as an inherent power of the court.
12.22.2005 1:09pm
A. Nonymous (mail):

If a court declares itself unconstitutional, by what authority does it have to disband itself? ;)



Same way Marshall found the Supreme Court did not have the power to entertain the mandamus for Marbury. Same way the Supreme Court ruled (I forget the case) that Congress had no authority to give or require the Court to give advisory opinions or to intentionally start a lawsuit just to get a determination (i.e. a fake case that was set up is not a case or controvesy).

Courts inherent powers include the right to shut themselves down unless by statute their is a requirement they be open. A classic example is state Supreme Courts. Some states require they meet in session at least one day a year at a given location. After that, arguably, the court can meet wherever and whenever it deems necessary.
12.22.2005 1:13pm
Medis:
A.S.,

Obviously, Marty says a lot more about what he takes to be Silberman's dictum. In a nutshell, his argument is that all of FISA encroached on the President's power pre-FISA in some way, and yet both the President and the Congress agreed to the limits in FISA, and there has been no support in any caselaw for this dictum.
12.22.2005 1:19pm
TC (mail):
A. Nonymous,

While you're sarcasm meter is certainly running a little bit low today, there is certainly a difference between a court declaring that it does not have X authority (see, e.g., Marbury) and a court declaring that it has NO power.

If a court declare that is has NO power, by what power can it then order itself shut down?

;)
12.22.2005 1:30pm
A. Nonymous (mail):

If a court declare that is has NO power, by what power can it then order itself shut down?


A sua sponte disbanding would not be saying that the court has no power, but that it is not legitimate (or it no longer is) for legal and/or constitutional grounds.
12.22.2005 1:38pm
Tom Holsinger (mail):
The judge who insisted on anonymity in stating that his colleagues could consider "disbanding" the FISA court was wise in insisting on anonymity.

If the article quotes him accurately concerning the term, "disbanding", his statement suggests delusional thinking. The alternative is that his professional impartiality is so impaired that he should recuse himself from further cases involving the federal government. It is also possible that he suffers from some physically related mental impairment, such as a stroke, which renders him incapable of remembering terms he learned in law school, such as separation of powers.

Judges do not have the authority to "disband" their courts. They can adjourn them. They can resign and leave their seats vacant. Only the authority which created a court can "disband" it. In this case that was Congress. Judges do not create their own courts and appoint themselves to the bench.
12.22.2005 1:42pm
Medis:
Tom,

It is even possible he has a sense of humor. Which probably is grounds for impeachment.
12.22.2005 1:46pm
A. Nonymous (mail):

Judges do not have the authority to "disband" their courts.



There is precedent for a court disbanding itself. Cf the

Virginia example and Pendleton.


Only the authority which created a court can "disband" it.


Not with judicial review being what it is. Congress passes a law to create a court that is itself unconstitutional, a case comes up where a party challenges the court's existence and a judge could indeed find the law creating it unconstitutional, thereby in effect disbanding itself.

This is in addition to the inherent powers argument (i.e. court decides, outside of statutatory requirement, when and how it will meet).
12.22.2005 1:46pm
A.S.:
and yet both the President and the Congress agreed to the limits in FISA

This doesn't seem convincing at all. Would it make a difference if, for example, the President had vetoed the legislation but Congress overrode the veto? There would be no "agreement" between the President and the Congress in that case, but would the law enacted be any less binding? This is not theoretical, of course - the War Powers Resolution (also, IMO, unconstitutional) comes to mind. And the fact that the President operates in accordance with FISA or the War Powers Resolution, for reason of comity or any other reason, doesn't mean that the act of Congress in question doesn't unconstitutionally impinge on the President's prerogatives.
12.22.2005 2:00pm
Wintermute (www):
There's a good expose of the Carter and Clinton orders, which referenced statutory provisos like:

"there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party"

at newshounds.
12.22.2005 2:03pm
Apodaca:
A2 Reader, the FISA judges are listed here.
12.22.2005 2:08pm
yeah:
A. Nonymous:

U.S. v. Muskrat was the no advisory opinions case.
12.22.2005 2:08pm
Houston Lawyer:
Once again it comes down to a political question. The administration asserts that it has inherent power in this area that can't be limited by statute. Someone in the judicial branch seems to disagree. Who has standing to bring a claim to stop the administration from doing what it is doing?

If no one has standing, Congress's only recourse would be to impeach the president for "high crimes or misdemeanors". Same result if the Supreme Court decides that someone who brings a case does have standing and rules against the administration, and the administration decides not to obey the court's ruling.

How does a court dissolve itself, by majority vote? Every federal court other than the Supreme Court is created by Congress. If this court dissolves itself in opposition to a law created by Congress, aren't they then in the same territory as the President, acting on what they believe is their Constitutional prerogative notwithstand a statute to the contrary?
12.22.2005 2:12pm
Medis:
A.S.,

I was just paraphrasing Marty's argument. But I think his point was not just that the President's signature turned FISA into law, but also that the President doing so was a implicit refutation of the view expressed in the dictum. Indeed, according to Marty (according to someone else), Silberman actually made that argument about FISA during the mid-70s in some sort of testimony, and yet Congress and the President went ahead with FISA.

In that sense, the War Powers Resolution is a good contrast: Nixon did argue it was unconstitutional as grounds for his veto. But that did not happen with FISA.

In general, Marty's point is that this dictum was unsupported by anything in the legal history of FISA, from the time of its signing up to and including that actual case. Of course, one might think Silberman was right, both then and now, but I think Marty's point is just that Silberman was not basing his dictum on anything besides his long held views.
12.22.2005 2:18pm
Al Maviva (mail):
Orin,

Maybe you could address the clause at the end of 50 U.S.C. 1802, which appears to limit the warrant issuing authority of FISA.


except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person.


I read that as an acknowledgment that the FISA court's existence is limited to protecting the rights of U.S. persons, and that there is an independent executive branch authority to conduct foreign intelligence monitoring abroad, and even domestically as long as US persons aren't involved.

Your thoughts?
12.22.2005 2:28pm
Greedy Clerk (mail):
AS: "I mean, if a court has "inherent power", why shouldn't the President?"

AS, your little straw-man act is getting old. It goes without saying that this statement and the whole "argument" made in your post is one that a third-grader could see through. Perhaps it would work on a screaming-heads show on Fox News or CNN, but it ain't going to fly here. So quit it. No one is saying that the President does not have inherent powers. The question is what are the President's inherent powers. People here are not idiots -- we were not born yesterday and are interested for the most part in an honest intellectual debate with a touch of sarcasm when necessary. You constantly creating a straw-man only to hack it to death is an act that is getting real old.
12.22.2005 2:38pm
TJ (mail):
From the quoted piece

One judge, speaking on the condition of anonymity, also said members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass the court.


Note that I've highlighted and bolded something that may be of interest to all of you hollering about "where do they get the authority to disband?"

Note also that in the post, Orin Kerr highlighted that very sentence.

Reading comprehension, much?
12.22.2005 2:38pm
Greedy Clerk (mail):
A Nonymous -- I see you made the same point I made. It is apparent that AS is just testing out puerile talking-points and is uninterested in real debate or discussion of a real important issue.
12.22.2005 2:39pm
Greedy Clerk (mail):
Al Maviva -- I see that you actually quote the statute accurately this time. Too bad you failed to do that in your blog post that Instahack linked to -- this was an interesting study in the creation of a partisan echo-chamber. Did you apologize for that? or at least update? Just wondering.
12.22.2005 2:42pm
A. Nonymous (mail):
Houston Lawyer said:


How does a court dissolve itself, by majority vote? Every federal court other than the Supreme Court is created by Congress. If this court dissolves itself in opposition to a law created by Congress, aren't they then in the same territory as the President, acting on what they believe is their Constitutional prerogative notwithstand a statute to the contrary?


Any rule of a court is generally by majority vote. As for dissolving itself there is not statute contrary. Nothing says the court shall not be permitted to adjourn sine die and I believe nothing says when the court must or must not convene and sit. IF there is legislation saying they must sit the 1st Tuesday in October to July 1 in DC or some such then I'll stand corrected.

Moreover, there's a difference here between the President and the Courts. The President can have his opinions on wether something is or is not constitutional, and they are all well and good. But it is the court taht has the authority to declare something unconstitutional under judicial review. If the FISA court finds itself or its conduct or even its existence and its legislation creating itself unconstitutional, then out it goes (subject of course to appellate review on this point).
12.22.2005 2:43pm
A. Nonymous (mail):
TJ: I'm not arguing that they have the power to suggest a disband. They can suggest to Congress as a court or through the Federal Judicial Conference anything they want.

What I am arguing is that read another way, the judge's comment could be taken as members suggesting to the court itself as a whole disbanding and if there was such authority (I argue there's a case to be made for it).
12.22.2005 2:48pm
David Matthews (mail):
"could suggest disbanding the court...."

"sense of humor" or sense of frustration. I don't think the judge was suggesting a legal course of action, but simply making the point that if the adminsitration feels that it has the authority to bypass FISC and conduct this intelligence gathering with no judicial oversight, then there's hardly any point to having the FISC. Kind of like a grown-up version of the teenager line, "Why don't you just shoot me, then?"
12.22.2005 3:00pm
Wonderland (mail):
It seems to me that a possible "disbanding" refers to resignations en masse of the remaining FISA judges. The purpose would be (1) to take a shot across the bow of Executive, and more importantly, (2) to light a fire under Congress to get serious about this.

Although technically disbanding would leave the court open for Roberts' appointments, the political pressure to refuse such appointments would be great — any judge who sits on a court that is de facto superfluous would look like a fool. And although the fallout would be a virtually stand-still for FISA orders — which the President argues he really doesn't need anyway — it would probably also require Congress to pass emergency legislation to reel in the Executive and get a handle on this.

More likely, this judge is threatening in the WaPo to do (1) and (2) above so that they can actually avoid disbanding but still get (1) and (2) accomplished.
12.22.2005 3:09pm
David Matthews (mail):
FYI

NationalReview has posted Asst. Atty. Gen. Moschella's letter to Messrs Roberts, Rockefeller, et. al.

Here
12.22.2005 3:11pm
Splunge (mail):
I'm all for the FISA Court disbanding itself. In fact, I'd vest the authority for ordering surveillance of international communications entirely with the President's discretion, any day of the year. And his failure to consult a judge, any subset of Congress, the AG, the magic 8-ball or God the Father is Not A Problem for this citizen.

Radical enough for you? Reason Number 1: I've often flown that AA flight that plowed into WTC tower #1. I never want to worry about that fact again, and if that means some folks with dodgy reputations are going to have their international conversations run through an NSA computer program that sniffs out phrases like "the target" and "zero hour," well, just cry me a river, 'cause I couldn't care less. The local prosecutor's wide discretion to bring dubious and politically-motivated cases (cf. Ronnie Earle and Eliot Spitzer) and the local judge's wide discretion to issue arbitrary if not borderline insane orders (cf. Santa Fe's Judge Sanchez) are far greater threats to my liberty.

Reason Number 2: there's zero to no chance I'll ever get to vote for one of them there FISA judges, or any Federal judge. But every four years I get to plunk down my vote for President, and if he's up to no good, is having the FBI bring him tape recordings of Carl Levin's phone pr0n calls for yux, then I figure he'll be turned out of office PDQ. Can't say that about a Federal judge. It takes 65 million votes for a President to keep his power, but once he's on the bench it takes an Act of God, roughly speaking, for a Federal judge to lose his. So by me the Executive is a safer home for really dangerous power than the Judicial branch.
12.22.2005 3:26pm
Kazinski:
FISA has already been briefed. As was pointed out in an earlier post on a previous thread, the Administration has repeatedly briefed the FISA Presiding Judge on the NSA program dating back to 2001. The WP mentions it in its article but not until the 19th paragraph.

Washington Post

Why would the Post wait until the 19th paragraph to mention that the Presiding FISA Judge has been aware of the program since the beginning? By the way the current FISA Presiding Judge (since 2002) is a Clinton appointee.
12.22.2005 3:27pm
Medis:
I read AAG Moschella's letter. One obvious thing to note is that there is once again no claim that they actually complied with FISA.

On that subject, as I understand it, their position is that the 2001 AUMF counted as authorization by statute under 50 USC 1809. That alone is at best a close issue, but they cite avoiding the clash with the President's Article II powers in favor of this interpretation. I'm not sure that will work--in light of Youngstown Steel, few people may be willing to assume that is really a constitutional problem.

On what I think is the worst problem for this interpretation, 18 USC 2511(2)(f), they claim that because 1809 allows an exception for other statutory authorization, it ... I'm not even sure how to characterize this argument. I guess the idea is that 1809 somehow incorporates any procedures the President adopts pursuant to the 2001 AUMF, so those now count as FISA procedures for the purposes of 18 USC 2511(2)(f).

I have to say, that is bordering on nonsense. All 1809 does is provide that electronic surveillance is not a crime under 1809 if it is authorized by FISA or a statute other than FISA. To turn that provision into an incorporation of any other statute's procedures (or, more properly, procedures adopted in an EO pursuant to a statute) into FISA's procedures seems to go against the plain language of both 1809 and 18 USC 2511(2)(f).
12.22.2005 3:40pm
Anderson (mail) (www):
Kaz, just because the chief judge was briefed, that doesn't mean the other judges are happy about being kept in the cold.
12.22.2005 3:40pm
Medis:
The relevant "argument":

"By expressly and broadly excepting from its prohibition electronic surveillance undertaken 'as authorized by statute,' section 109 of FISA permits an exception to the 'procedures' of FISA referred to in 18 U.S.C. 2511(2)(f) where authorized by another statute, even if the other authorizing statute does not specifically amend section 2511(2)(f)."

Again, this sounds pretty nonsensical to me. The logic is that because 1809 does not make surveillance authorized by another statute a crime, any other statute and EOs pursuant to that statute can supply the procedures of FISA within the meaning of 18 USC 2511(2)(f). I guess that "exclusive means" reference to FISA in 2511(2)(f) was a lot of wasted ink, because on this logic the procedures in any other statute or subsequent EO are automatically FISA procedures simply because FISA does not make following those procedures a crime, so there is no point in referring to the procedures in FISA--18 USC 2511(2)(f) might just as well have said any procedures authorized by any law.
12.22.2005 3:50pm
abayrat:
Did the presiding judge approve or disapprove the action. If she approved then I believe the President is acting legally.
12.22.2005 3:54pm
Wonderland (mail):
Medis --

Agreed. The AUMF/FISA argument in the brief is preposterous, and for reasons in addition to those you point out. If AUMF authorized domestic electronic surveillance, surely a statement to that effect is somewhere in the Congressional record. Right? Moreover, they mention "established principles of statutory construction" but do not even attempt to deal with the specific statute v. broad statute issue that their AUMF/FISA argument so clearly implicates.

And their treatment of Youngstown is weak, too. I guess we should be happy they even mentioned it this time.
12.22.2005 3:55pm
David Matthews (mail):
medis:

"All 1809 does is provide that electronic surveillance is not a crime .... if it is authorized by a statute other than FISA."

I admit I'm in way deep over my head, here, but I think that Moschella's assertion, in this:

The AUMF satisfies section 109's requirement for statutory authorization of electronic surveillance,

follows from his assertion earlier:

This constitutional authority includes the authority to order warrantless foreign intelligence
surveillance within the United States, as all federal appellate courts, including at least four circuits,
to have addressed the issue have concluded.

and:

The President's constitutional authority to direct the NSA to conduct the activities he
described is supplemented by statutory authority under the AUMF.

That is, warrantless searches are such an integral part of conducting this operation that any authorization for the operation (i.e. AUMF) must necessarily be taken as statutory authorization for warrantless searches. The citation of the FISA provision (1809) by Moschella is to say that "even FISA admits that other statutory authorization may exist than FISA."

Again, I admit I'm over my head, so it's nice to see that someone who's not over his head is puzzled by this (although "bordering on nonsense" may go a bit far?)
12.22.2005 3:59pm
Wonderland (mail):
To stay with the Youngstown issue, they have to do several backflips before they get to the point where they assert that we're in a Youngstown category 1 case.

They don't even bother to address the obvious due process problems with their argument that the AUMF applies to American citizens who are determined solely in the President's discretion to be Al Qaeda-affiliated. Does the President have the unilateral authority to declare any citizen an enemy of the state? Apparently.

Second, their reliance on Hamdi is specious. The facts couldn't be any different. There's obviously a big difference btw being an American citizen in your home and an American citizen with a gun in the Taliban army in Afghanistan. And even the Hamdi court acknowledged that Hamdi had the right to go to a court to challenge his detention. Under Bush's program, there is no place for the courts.

Third, there is no way you could read FISA and then decide that this a Youngstown Category 1 case. They'd have to argue that FISA is unconstitutional -- which they cannot do.
12.22.2005 4:12pm
John Lederer (mail):
I think this simply views an exception as transitive:

2511(2)(f) says FISA must govern, FISA says it governs, except when authorized by a statute( arguably AUMF). Therefore 2511(2)(f) has the same exception for AUMF.

The opposite reading has the problem that it makes possibly meaningless FISA's exception for "authorized by statute"
12.22.2005 4:34pm
A.S.:
To summarize:

1. Warrantless surveillance has been ruled by multiple circuit courts to be within the President's inherent power in the absence of statutory authority to the contrary (i.e., when in Category 2 of the Steel Seizure case).

2. The Attorney General argues that the AUMF moves this from Category 2 to Category 1, where the President is acting in furtherance of the express or implied will of Congress. Critics argue that the AUMF wouldn't contemplate electronic surveillance.

3. Critics argue that because the surveillance program violates FISA, this moves from Category 2 to Category 3 (where the President is acting at odds with Congress's express or implied will). The Attorney General argues that the program doesn't violate FISA because it was "authorized by statute" - the AUMF.

All this is pretty ambiguous because the AUMF doesn't spell out exactly what authority it gives the President. Is the AUMF limited to permitting the President to allow the military to shoot guns and drop bombs on the enemy? Or does it also let the President surveil the enemy and persons linked to the enemy?

Well, I see a pretty good way out of this ambiguity. Let's have Congress speak directly on point.
12.22.2005 5:08pm
Wonderland (mail):
A.S. --

To clarify point 2 above, critics don't argue that AUMF doesn't contemplate electronic surveillance; we argue that it doesn't contemplate electronic surveillance of US citizens in violation of FISA (and, possibly, the Fourth Amendment). And I don't think any court would read the AUMF as doing so. This is especially so because FISA has an express emergency provision for 15-day periods following declarations of war. So it's our argument that Congress already spoke.

But, at base, you're right that Congress will have to speak again. The question is whether the majority party's partisanship and fealty to Bush will win out over its willingness to reassert Congress's primacy (Article I, ahem) in the Constitutional design.
12.22.2005 5:34pm
Shelby (mail):
Splunge:

The executive is already accountable (at the ballot box) for these actions; letting the courts weigh in on legality doesn't change that. Two things, though: (1) Your position would eliminate an important check on increasing executive authority (balance of powers, anyone?), and (2) doesn't it make sense to have a case-by-case way to address problems, rather than waiting four years to make wholesale changes even if you're only upset about half the things someone's done?

Your comments seemed to call for a policy-oriented, rather than legal, response, so I'll just mention in passing the gross illegality and unconstitutionality of your proposal.
12.22.2005 5:53pm
anonymouslawyer (mail):
I have great respect for Marty Lederman, but his attempt to distinguish the decision by the FISA Court of Review is unconvincing.

First, Marty's argument is largely predicated on the assertion that the language "was almost certainly written by Judge Laurence Silberman," and the implicit assertion that the other two members of the panel simply (and perhaps unwittingly) signed off on to Judge Silberman's attempt to write his personal preferences into law. Not only is that merely conjecture on Marty's part, it is hugely offensive to the other two members of the panel.

The presiding member of the panel, Judge Ralph B. Guy, Jr., served as the United States Attorney for the Eastern District of Michigan from 1970 to 1976, as a United States District Judge from 1976 until 1985, and has served on the Sixth Circuit since 1985. The other member of the panel, Judge Edward Leavy, served on the state bench in Oregon from 1957 to 1976 (including sitting for a year pro tem on the Oregon Supreme Court), as a United States Magistrate from 1976 to 1984, as a United States District Judge from 1984 to 1987, and has served on the Ninth Circuit since 1987.

In other words, when the decision by the FISA Court of Review was rendered in 2002, Judges Guy and Leavy had sat for a combined total of 52 years on the federal bench, and Judge Leavy had sat for an addition 19 years on the state bench. Yet, by Marty's account, not only is it obvious that they had no involvement in writing the opinion or passage in question, but they apparently were simply automotans who simply signed off onto Judge Silberman's attempt to write his personal preferences into law. I don't think that that is what Marty actually believes, and perhaps he has simply fallen victim to a classic case of Beltway insularity, only giving weight to the views of a judge with whom he is familiar. Regardless, that most unfortunately is the practical import of Marty's argument, and Judges Guy and Leavy certainly are entitled to a little more respect than Marty is giving them, which is essentially none.

Second, although I think the point is debatable given the positions of the Carter and Clinton Administrations regarding physical searches of foreign intelligence subjects, Marty may ultimately be right that "Congress and the President rejected Silberman's unorthodox constitutional view when they enacted FISA." However, the Bush Administration argued the contrary position in its brief to the FISA Court of Review, and that court agreed with the Administration's analysis, albeit in dictum. However wrong Marty or anyone else might think the court's view to be, the court of review wwith specialized jurisdiction to decide these questions has spoken and, in the absence of an authoritative statement by the Supreme Court, its analysis is worthy of respect.

Indeed, while the passage in question is indisputably dictum, it is an established principle that dictum by the courts of appeals are worthy of great weight. See Guyon v. Basso, — F. Supp.2d — (E.D. Va. Dec. 8, 2005) ("[E]ven if dictum, statements by the court of appeals are to be given considerable weight."); Lee v. Coughlin, 643 F.Supp. 546, 549 (W.D.N.Y. 1986) (circuit dictum is "worthy of great weight and respect from the lower courts of this Circuit"). Thus, while Marty simply dismisses the court's analysis as a "throwaway" passage, it plainly would be entitled to great respect by the lower FISA court if it ever had to reach this question.

At bottom, while Marty and others have every right to argue that the FISA Court of Review's analysis was wrong, the suggestion that the court's analysis can be dismissed out-of-hand is far too cavalier. At a bare minimum, the Administration clearly was entitled to give great weight to the FISA Court of Review's dictum in adopting the position it did.
12.22.2005 6:17pm
Wince and Nod (mail) (www):
Lotsa warrantless loopholes here:
(f) "Electronic surveillance" means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
Speaking as someone who designs systems, it seems like the NSA could design plenty of programs which don't intentionally target particular U.S. citizens, etc. and therefore arent't considered electronic surveillance. It also seems like the details which would show the NSA is following the law would be classified, and probably were left out of the New York Times article.

Yours,
Wince
12.22.2005 7:16pm
Medis:
John,

The precise problem is that 18 USC 2511(2)(f) does not merely say that FISA "governs" (which would be more than a little redundant).

Rather, 18 USC 2511(2)(f) says that the PROCEDURES in FISA (plus those in Title 18 itself) shall be the "exclusive means" by which electronic surveillance within the meaning of FISA can be conducted.

That is what renders the argument in the letter borderline nonsensical. 1809 does not define any FISA procedures. It simply creates a crime for unauthorized surveillance, but allows other statutory authorization (not under FISA). But that doesn't somehow transform any procedures pursuant to any statute outside of FISA into FISA procedures.
12.22.2005 9:32pm
Medis:
Wince,

Obviously the NSA could conduct surveillance outside of the definition of electronic surveillance in FISA. And I have no doubt they have been doing so since FISA was passed in 1978. But no one in the Administration is actually claiming the program at issue was completely outside the definition of electronic surveillance in FISA--a claim they could make in general even without providing specific details. So, at this point, I really doubt that is the case.
12.22.2005 9:36pm
Medis:
John,

Sorry, I forgot one important point. My proposed plain text reading of 18 USC 2511 and 50 USC 1809 does not render the clause in 50 USC 1809 allowing authorization by another statute meaningless. That is because 18 USC 2511 also allows electronic surveillance under Title 18 (basically, the ordinary criminal law surveillance provisions).

Indeed, if 50 USC 1809 had not included the relevant clause, it might have wiped out the ability for the FBI to get electronic surveillance warrants under ordinary criminal procedures. Obviously, it makes sense for FISA not to preclude ordinary criminal investigations of agents of foreign powers.

So, this all makes perfect sense: FISA lays out the procedures for surveillance for foreign intelligence purposes, and Title 18 lays out the procedures for surveillance for ordinary criminal investigations purposes. And 18 USC 2511 provides that those are the only two ways in which electronic surveillance within the meaning of FISA can be conducted.

In contrast, the letter's reading would mean that 18 USC 2511's provision that the procedures of FISA and Title 18 are the "exclusive means" of conducting electronic surveillance within the meaning of FISA was completely pointless.
12.22.2005 10:00pm
PhilaMark (mail):
Medis:

Wince's argument sounds right to me. Which (of many) arguments might be most persuasive politically is irrelevant to whether the conduct at issue is legal. Indeed, given the media circus over the possiblity that another nation is hosting secret prisons for terrorists, it seems logical that Bush might be deliberately trying to hide the location at which all of these calls are being intercepted. Many posters are spending a great deal of time and effort creating straw man arguments as to how the NSA program might be legal, without taking a serious look at FISA and what it was attempting to accomplish. I'm sure the NSA weighed in at the time FISA was being drafted, in part precisely to make sure that it wouldn't create problems with its then-current programs.
12.22.2005 11:33pm
Medis:
PhilaMark,

I'm not sure I understand your argument. For example, why wouldn't the AAG claim that the surveillance complied with FISA, whether or not that was the MOST persuasive argument in a political sense? In other words, why omit that very relevant argument in a letter explicitly about the legality of the program?

More broadly, even if this was not the MOST politically persuasive argument (and it seems to me it would be pretty darn important politically), the Administration is not limited to making just the MOST persuasive argument. Rather, they can make ANY relevant arguments.

Seriously, this just makes no sense. If all the surveillance was in compliance with FISA, I'm quite confident that someone in the position to know would be saying as much--even if they gave no details about what why that was true in the name of operational security. But they just aren't making that claim.
12.23.2005 12:07am
Wince and Nod (mail) (www):
Medis,

Actually, they do claim that they are following FISA where applicable.

Yours,
Wince
12.23.2005 11:06am
Apodaca:
Wince and Nod says:
Actually, they do claim that they are following FISA where applicable.
That's a fairly tendentious use of the word "following." What the Moschella letter actually does is concede that the FISA framework applies, but it then argues that the section 1809(a)(1) exception in FISA ("as authorized by statute") allows the Executive not to comply with the rest of FISA on the grounds that the AUMF furnishes such auhorization.
12.23.2005 12:10pm
Tom Holsinger (mail):
Some blogs are claiming that last week's NY Times story on the NSA's warrantless intercepts of foreign communcation was a "made-up" story in that it had no real news in it, especially in view of a 1982 NY Times story about a 6th Circuit decision holding that these intercepts were constitutional. Here is a link to the 1982 story, plus some excerpts:

http://newsbusters.org/node/3298
"... A Federal appeals court has ruled that the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agents, and then provide summaries of these messages to the Federal Bureau of Investigation

...The opinion of the three-judge panel of the Court of Appeals held, ''The simple fact remains that the N.S.A. lawfully acquired Jabara's messages.'"

The citation is Jabara v. Webster, 691 F.2d 272 (6th Cir. 1982).

Mr. Jabara was a Detroit attorney of Arab ancestry who sued then FBI Director William Webster and others, including officials of the National Security Agency, for federal civil rights violation concerning their obtaining and use of warrantless National Security Agency intercepts of his telephone calls overseas which were provided to the FBI, and for violation of the federal privacy act - 5 U.S.C. 552a(e)(7).

Jabara won summary judgment in the district court. The 6th Circuit reversed on appeal.

Jabara did not contend that the NSA violated any of his rights by intercepting his overseas phone calls &telegrams. He alleged that the NSA violated his rights by providing the information obtained by the intercepts to the FBI without the FBI obtaining a search warrant for the information. The parties agreed that the contents of the intercepts did not show that Jabara was a foreign agent, and that the government had no information whatever tending to show that Jabara was a foreign agent.

The 6th Circuit found that Jabara did not have a reasonable expectation of privacy in the content of his messages once they were in the NSA's possession, specifically that he could not reasonably expect the NSA not to share that information with other agencies.

It is my initial opinion, upon a quick reading of this case, that the NY Times article erred in stating that the 6th Circuit found that the NSA's intercepts of Jabara's messages was constitutional. The 6th Circuit simply found that because Jabara did not challenge its constitutionality, "... we may therefore take it as a given that the information was lawfully in the hands of the NSA."

So the NY Times article in 1982 about this case may establish that the NY Times invented phony indignation last week over non-news about NSA intercepts, but the Jabara v. Webster ruling itself did not address the constitutionality of the NSA's intercepts.
12.23.2005 5:10pm
Tom Holsinger (mail):
oops, the above was posted in the wrong thread.
12.23.2005 5:42pm
Neal Lang (mail):
As others have pointed out on other threads, the remedy could also be a Bivens suit (the analog to section 1983 actions, but against the federal government) for damages or an injunction.

Exactly who has claimed "damages" based on intercepted communications by this NSA Program?
12.24.2005 6:58pm
Neal Lang (mail):
Actually, they do claim that they are following FISA where applicable.

And the facts bear this out:

Year------Number of------Number of------Number of
-------------FISA------------FISA----------FISA
--------Applications----Applications----Applications
---------Presented--------Approved--------Rejected

1979------- 199------------- 207-------------- 0
1980------- 319------------- 322-------------- 0
1981------- 431------------- 433-------------- 0
1982------- 473------------- 475-------------- 0
1983------- 549------------- 549-------------- 0
1984------- 635------------- 635-------------- 0
1985------- 587------------- 587-------------- 0
1986------- 573------------- 573-------------- 0
1987------- 512------------- 512-------------- 0
1988------- 534------------- 534-------------- 0
1989------- 546------------- 546-------------- 0
1990------- 595------------- 595-------------- 0
1991------- 593------------- 593-------------- 0
1992------- 484------------- 484-------------- 0
1993------- 509------------- 509-------------- 0
1994------- 576------------- 576-------------- 0
1995------- 697------------- 697-------------- 0
1996------- 839------------- 839-------------- 0
1997------- 749------------- 748-------------- 0
1998------- 796------------- 796-------------- 0
1999------- 886------------- 880-------------- 0
2000------ 1005------------ 1012-------------- 0
2001------- 932------------- 934-------------- 0
2002------ 1228------------ 1228-------------- 0
2003------ 1727------------ 1724-------------- 4
2004------ 1758------------ 1754-------------- 0

Looks like something might have happened in 2001!
12.24.2005 7:34pm