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DOJ Defends NSA Surveillance Program:
DOJ's Office of Legislative Affairs has sent a letter to Capitol Hill (5-page .pdf) defending the legality of the NSA surveillance program. It's heavy on the AUMF for the statutory issue and makes a generalized "special needs" exception argument for the Fourth Amendment.
Anderson (mail) (www):
What a sad little tissue of lies and half-truths.

We couldn't ask Congress to legalize what we did, because THEN THE BAD GUYS WOULD KNOW! ... Because of course, the idea that their phone calls might be tapped never occurs to the Bad Guys.

And to think that some lawyers go to work in the public sector out of "idealism."
12.22.2005 5:06pm
AF:
Thanks for all your work on this Orin. Notice that the DOJ does not even intimate that the surveillance program is consistent with FISA (except by virtue of the AUMF argument). I know you think they might have national-security reasons for not doing so, but don't you think the debate should focus on the arguments the administration is making, rather than assuming they might have other arguments they are not making?
12.22.2005 5:12pm
OrinKerr:
AF,

It depends, I suppose. When I was at DOJ, there was often a significant gap between the strong legal arguments and the legal arguments that the bigwigs felt comfortable making in public. So if you want to know whether the program was legal, I think you need to go beyond what the bigwigs are saying. On the other hand, if you want to know whether the public arguments are legally persuasive, then of course you can focus on those arguments. It all depends on which question you're interested in, I think.
12.22.2005 5:18pm
subpatre (mail):
Anderson twists the DOJ letter's wording to say "We couldn't ask Congress to legalize what we did...."

Congress, specifically those in Congress delegated responsible to their fellows for intelligence matters, is already aware of the the surveillance methods. It is their (Congressional Intelligence Committee) call whether to suggest changes to any law, not the President's. They have not done so.

Partisanship hate is ugly. Partisanship that could reduce national security is dangerous, and needs to be rooted out like any other deliberate attempt to reduce national security.
12.22.2005 5:31pm
dk35 (mail):
Subpatre,

So, should Sensenbrenner, Luttig, the Republican Senators who helped Filibuster the Patriot Act and the FISA court members requesting an accounting from Bush be "rooted out" as well?
12.22.2005 5:36pm
Anderson (mail) (www):
subpatre: Anderson twists the DOJ letter's wording to say "We couldn't ask Congress to legalize what we did...."

Here is the un-twisted wording:
In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence
limitations and capabilities.
Shall I get you carbons for your written apology, subpatre?

Congress was not aware of this program. Four or so members were told of it &ordered to keep quiet. Thus, the body which enacted FISA was not apprised of what was being done, or given the opportunity to approve or reject the program.

Too much partisanship? Close thy NATIONAL REVIEW; open thy FEDERALIST PAPERS. We have had too *little* partisanship, or else (for ex.) Sen. Rockefeller would've taken his concerns to the full Senate, not handwritten a letter and kept it locked up for CYA purposes.

A vigorous Democratic opposition, and a really "partisan" media, would help keep the Republican-controlled government on its toes. We are just starting to see a bit of that, after 3+ years of being sadly lacking in partisanship.

(Leaving aside the revoltingly partisan nature of this Administration, as too obvious to anyone with eyes.)
12.22.2005 5:39pm
subpatre (mail):
dk - Not in my book. They appear (like most of the filabustering Democrats and remainder of Republicans) to be honestly concerned about the state of the nation's security.

If you can provide a quote where Sensenbrenner, Luttig, et al call the Executive's briefing to them "a sad little tissue of lies and half-truths", then perhaps I'll change my opinion.
12.22.2005 5:43pm
Anderson (mail) (www):
Okay, just *one* little example of "revoltingly partisan nature", from yesterday's White House briefing:
Q You suggested that those who are seeking an extension are putting politics above security. That now includes eight Republicans. Are you including them in that accusation?

MR. McCLELLAN: No, it's the Senate Democrats.
Oh. That explains it all.
12.22.2005 5:44pm
dk35 (mail):
Subpatre,

You should look at the posting on this site regarding Luttig's opinion yesterday in the Padilla case. In so many words, he called the Bush government a bunch of liars. Remember, too, this was the guy on Bush's short list of Supreme Court candidates.
12.22.2005 5:50pm
Anderson (mail) (www):
Alas, dk35, not in so many words, though to those of us used to reading appellate opinions, that certainly came through loud &clear.
12.22.2005 5:54pm
subpatre (mail):
Anderson - All intelligence briefs are to members of Congress selected by their fellows to represent the body. The members were told of the surveillance. They were not "ordered to keep quiet", nor can they be. The suggestion is ridiculous.... and contrived.


dk - Luttig's opinion was part --read the remainder of the opinion-- of an attempt to make the US a better place. Anderson's was not. Luttig may have used strong wording, but I failed to notice "a sad little tissue of lies and half-truths"

Luttig's opinion is a superb example: He disagrees strongly with the administration, yet somehow manages to stick to relevant facts. Anyone posting here would do well to study it.

See "invective" and "personal insults, and the like" below. Anderson would have been out-of-line addressing it to another poster; it's out-of-line addressing a DOJ executive opinion on national security.
12.22.2005 6:16pm
Anderson (mail) (www):
Back to "invective," subpatre; you falsely accused me of "twisting" the DOJ letter.

Moving right along, you said: The members were told of the surveillance. They were not "ordered to keep quiet", nor can they be. The suggestion is ridiculous.... and contrived.

Here's Sen. Rockefeller on his letter to Cheney:
The limited members who were told of the program were prohibited by the Administration from sharing any information about it with our colleagues, including other members of the Intelligence Committees.
So, we're not supposed to be "partisan," but a Democratic Senator's report that he was told to keep quiet is "ridiculous ... and contrived."

Apparently I am not trying to make the U.S. a better place by calling b.s. where I see it? I guess we have different concepts of the Good, subpatre ... it's like a paragraph out of Isaiah Berlin or something.
12.22.2005 6:31pm
unenumerated (mail) (www):
Flying in the face of the Constitution, the DOJ has been defending the accumulation of unchecked power by the executive for years, often leaving DOJ procedures as the only "check" on executive agencies' exercises of power. In this process the DOJ has been buttressed by the Supreme Court which gives far too much weight to DOJ briefs which serve its interests but erode constitutional protections against arbitrary power. What the Constitution actually says is quite different.
12.22.2005 6:33pm
Anderson (mail) (www):
Right on, Unenumerated.

When you think about it, the "Republicans In Name Only" are those who want to sacrifice the Bill of Rights on the altar of National Security. That's how every dictatorship in the book justifies its tyrannies ... "national security." Conservatives, back when they existed, understood this. But power corrupts, etc.
12.22.2005 6:41pm
The Original TS (mail):
Back to the legal analysis, this is pretty weak.

For starters, they've tied their authority directly to the wording of the AUMF. Big mistake. First, this would clearly prohibit listening in on non-Al Qaeda terrorists. Putting aside just how proper an organization Al Qaeda is and whether it's really possible to identify its members, there are clearly lots of terrorist organizations that have nothing to do with Al-Qaeda. I doubt they've been observing this distinction.

Secondly, assuming their justification is correct, a plain reading would allow them to monitor Al Qaeda operatives but not to monitor people to determine whether they are Al Qaeda operatives. Since they've apparently monitored hundreds and perhaps thousands of different people, monitoring them to discover if they are involved in Al Qaeds is exactly what they are doing.

I'd also observe that the Fourth Amendment "reasonableness" justification is a bit of a throw away. If the AUMF isn't "other statutory authorization," then the monitoring still an illegal violation of FISA even if it isn't unconstitutional.
12.22.2005 6:47pm
Jojo:
Sorry, Orin, I don't buy it. This administration loves playing the "We wish we could tell you why this is so vital, but we can't so just trust us" card.* Luttig's anger notwithstanding, they'd play it if they had it.

*Especially because it leads to the "if you suggest we're not being 100% truthful about what we're not telling you then you're sending the wrong message to the troops" card.
12.22.2005 7:41pm
Anderson (mail) (www):
Jojo: Sorry, Orin, I don't buy it. This administration loves playing the "We wish we could tell you why this is so vital, but we can't so just trust us" card.

Well, I am hesitant to dismiss Prof. Kerr's DOJ experience, but this case may be the exception. I suspect that any "secret" arguments are cribbed from Carl Schmitt John Yoo.

The "secret argument" notion reminds me of the classic British scam, "an undertaking of great advantage, but no-one to know what it is." As Jojo notes, we have been asked to trust this White House too many times, with our trust ill repaid.
12.22.2005 7:47pm
Kazinski:
Facts are stubborn things, and there are two facts that have not been refuted:

1. Every President in the powtwar era has asserted a right of warrantless electronic surveilance for foreign intelligence purposes.

2. No court has ever ruled (that they don't have that authority, despite plenty of opportunity to do so.

In fact the Courts have gone out of their way to make sure that the Presidents inherent authority to counter external threats has stayed intact.

I've heard a lot of blathering here about why AUMF doesn't do what the President claims, why FISA trumps the constitution. There has been an awful lot of construing of statutes, but the one thing I haven't heard from anyone (Orin included) is a single decision from any court that says the President needs a warrant for foreign intelligence gathering, or for that matter contradicts anything in the DOJ memo. On the other hand there have been quite a few citations from both SCOTUS and FISA court of review that say pretty much the same thing as the DOJ memo.

Educate me here.
12.22.2005 8:26pm
Anderson (mail) (www):
Kaz, why refute the irrelevant?

1. Every President in the powtwar era has asserted a right of warrantless electronic surveilance for foreign intelligence purposes.

Sure, but until 1978, there was no statute to interfere. And please name the post-1978 presidents who asserted what's really at issue here: warrantless electronic surveillance OF U.S. CITIZENS IN THE U.S. for foreign intelligence purposes?

2. No court has ever ruled (that they don't have that authority, despite plenty of opportunity to do so.

Please name the decisions in which the courts were presented with the question? The real question, re: U.S. citizens, as posed above? Post-FISA, please. You've got Silberman's dicta and that's it. Don't bet the house note.

Educated? Or is this just "blathering"?
12.22.2005 8:36pm
Daniellee (mail):
First, the DOJ letter certainly does not strike me as weak, but rather a fairly normal way to read statutes. Certainly, no one on this thread has attempted to differ with the axioms of statutory construction applied in the letter.

Second, the fourth amendment argument is facially skeletal, and I think for a simple reason: administration critics are not arguing that FISA is unconstitutional, nor are they arguing that electronic communications that at involve, in part, communications from or to a foreign country are somehow inherently protected-- absent FISA-- from warrantless searches, at least as far as I have seen. (I take it that readers of this blog are sophisticated enough to know that warrantless searches are unconstitutional only if they are unreasonable.) In other words, the critics have not made a Constitutional argument that is deserving of more of a response. If FISA can be construed together with the AUMF to provide a colorable basis for the administrations position, why debate the 4th Amendment? Just assume that both FISA and the AUMF are constitutional, that they can be construed in harmony, and move on.

Third, the practical point that the letter rests on, authorization to use military force implies a power (expectation?) to gather intelligence, seems rather unremarkable. Again, that seems like something that should be uncontroversial, unless it is because Bush did it.

What is emerging is not a classic wiretap program, but some kind of signals gathering and analysis program that surveys a massive number of circuits and isolates a relative few for further analysis. That point of analysis, as I have been given to understand some of these techniques, is likely the first time a human being ever hears the communication or sees the email, and it might be well after the 72 hour period provided by FISA. Hardly grounds for the fear of grandiose claims of immunity from Congressional or judicial oversight that the critics have used to keep the pot boiling, and claims that the adminstration is in fact not making. Calm down.
12.22.2005 8:41pm
John Lederer (mail):
A good discussion about this is both intellectually and practically interesting because these are serious issues of government that are likely to increase in importance over time.

But what I see in many of these posts are people whose opinions are so molded by partisanship that they are almost useless to help illuminate or understand the issues. "Gotcha" is not the right game to play.

In that regard, I deeply respect Rep. Harmon of California the ranking democrat on the Permanent House Intelligence Subcommittee who had the guts to say ."I believe the program is essential to U.S. national security,and that disclosure has damaged critical intelligence capabilities"

I have the same respect for any Republican who instead of joining the "circle the wagons" bunch instead takes a serious look at how we can best balance security and liberty.

Perhaps we could all follow their examples.
12.22.2005 8:41pm
John Lederer (mail):
How would one draft a statute that provides oversight to an ongoing "fast and agile" surveillance operation that involves automatic filtering of a huge volume of non-suspect communications looking for those of interest?
12.22.2005 8:46pm
Anderson (mail) (www):
Lederer: In that regard, I deeply respect Rep. Harmon of California the ranking democrat on the Permanent House Intelligence Subcommittee who had the guts to say ."I believe the program is essential to U.S. national security,and that disclosure has damaged critical intelligence capabilities"

Since you deeply respect Harmon, would you please explain how "critical intelligence capabilities" have been damaged by the story's going public?

Are we supposed to believe that terrorists and their supporters are unaware that phones may be bugged (not mined, but actually bugged) and that they should use word codes, etc.?

It's not about "partisanship"---it's about whether the law's been broken or not. (Which answers Daniel Lee's comment.) I sort of thought that readers of a law blog might find that an important issue. I guess respecting the rule of law is now "partisan," in which case I proudly bear the label.

How to draft a statute that allows reasonable data-mining is a great question, and Daniel Lee's comment above implies some restrictions that might bring such a program within reasonable bounds. Surely it's doable, and not without judicial oversight either.

But the point is that the White House didn't think that to be such a great question. In fact, they deliberately refused to worry about that, if the DOJ letter is to be believed.
12.22.2005 9:00pm
Kazinski:
Anderson, I don't know about blathering but assuredly uneducated. Here is Jimmy Carter in 1979 (post FISA) asserting a right to Warrantless surveillence:


1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.


And in the Clinton Administration:

The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."


And Reagan:

Executive Order 12333, signed by Ronald Reagan in 1981, provides for such warrantless searches directed against "a foreign power or an agent of a foreign power."


Both are cited here.


Not to mentions the Op-ed from Clinton's Associate Attorney General John Schmidt:


President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.


Whether or not the subject of the warrentless surveillence is a U.S. citizen is irrelevent if they are agents of, or associated with a foreign power. No where in these previous presidential assertions (one of which involved Aldrich Ames) was there any caveat about no US citizens being involved.

And you may not like the "Silberman Dicta" (or Keith, or others) but you have yet to quote a single decision supporting your own position.
12.22.2005 9:15pm
Daniellee (mail):
Anderson,

If it is proper, as the DOJ letter says, to harmonize FISA and the AUMF, then no law has been broken. They rely on plain vanilla statutory construction arguments which, I learned in law school, are not necessarily determinative. However, until someone takes the trouble to use the same sort of analytic tools to rebut the DOJ arguments-- not jsut throw invective at them-- they win by default. And, as I am sure the lawyers who read this blog know, every legal axiom has a companion axiom that can be used in rebuttal. That's why we make the big bucks.

As for your other point, why ask Congress for new legislation if you can make a colorable argument that you don't need it? Why worry about it? Did Bush look the least bit worried during his news conference the other day?
12.22.2005 9:16pm
Francis:
One defense of the President I've read argues that FISA is an unconstitutional interference with the President's Art. II powers.

Who would have standing to assert such a theory? Given the President's obligation to faithfully uphold the laws, it's hard to believe that the DOJ could legitimately take that position.

Any help from the cognoscenti? May the DOJ argue that a statute is unconstitutional? Who's to stop it if it does?
12.22.2005 9:24pm
Apodaca:
Kazinski mis-cites:
Anderson, I don't know about blathering but assuredly uneducated. Here is Jimmy Carter in 1979 (post FISA) asserting a right to Warrantless surveillence [sic]
Except that the warrantless surveillance provisions of FISA are by their own terms inapplicable to the targeted "warrantless electronic surveillance OF U.S. CITIZENS IN THE U.S. for foreign intelligence purposes," which is what Anderson inquired about.

The only intelligence you insult by such deliberate evasion is your own.
12.22.2005 9:47pm
Medis:
Daniellee,

Of course, one also has to include 18 USC 2511 in the "harmonizing" project, and the way that the letter proposes "harmonizing" 18 USC 2511 makes no sense in light of the plain language of that statute and 50 USC 1809. Additionally, even considering just FISA, it is difficult to harmonize the letter's proposed reading of the 2001 AUMF with the emergency and declaration of war provisions in FISA (as opposed to just 1809). Finally, it is difficult to harmonize the letter's proposed reading of the 2001 AUMF with the USA-PATRIOT Act, which amended FISA for the purposes of dealing with the precise problems the Administration is citing.

But there is another easy way to "harmonize" all of the 2001 AUMF, 18 USC 2511, and FISA as amended by the USA-PATRIOT Act. That would be to simply interpret the "necessary and appropriate" clause in the 2001 AUMF as being consistent with the statutory structure laid out in 18 USC 2511 and FISA as amended.

Of course, there is one notable problem with this obvious way of harmonizing all these statutes: apparently it would mean the President was ordering people to do something illegal.
12.22.2005 9:47pm
Andrew Hyman (mail) (www):
The DOJ letter doesn't mention section 1811, which 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.


But, I suppose DOJ could get around this provision by saying that it only refers to a "formal" declaration of war that actually says "we declare war."

I suppose the DOJ letter does present a credible argument regarding compliance with 2511(2)(f), which says that FISA and two other provisions are the "exclusive means" of electronic surveillance. DOJ says that the AUMF is effectively incorporated into FISA by FISA's statement that surveillance can be done "as authorized by statute." I think DOJ could get this point across a bit better if they used the word "incorporated" in their explanation.

Anyway, now that I'm convinced that DOJ has a decent argument, I suppose it's not necessary to argue (as I did previously) about the last sentence of the AUMF. That last sentence does indicate that Congress only meant to save the requirements of the War Powers Act rather than saving requirements generally.
12.22.2005 9:54pm
Medis:
Andrew,

The problem is that 1809 does not by its plain language incorporate anything. It doesn't even say that "surveillance can be done as authorized by statute". Rather, it merely provides that surveillance authorized by some other statute is not a crime under FISA.

Going from FISA not making something a crime to saying that any procedures FISA does not make criminal are actually FISA procedures is really a legal non sequitur.
12.22.2005 10:08pm
subpatre (mail):
Anderson then: "What a sad little tissue of lies and half-truths."
Anderson now: "....it's about whether the law's been broken or not." Suuure; that's why the definitive statement above.

Anderson now, cont'd: "Since you deeply respect Harmon, would you please explain how "critical intelligence capabilities" have been damaged by the story's going public?"

Anderson, dk35, unenumerated, The Original TS, Jojo, and Al Qaeda all truly believe(d) that certain* communications cannot be surveilled --indeed it's illegal to do so-- without a FISA warrant.

Although the rest may be ignorant, Al Qaeda knew it takes a minimum of [72 hours] to get an order, so used these modes of communication for [71 hours] maximum. Al Qaeda's changed their op manual and moved on; the rest are arguing to restore the status quo.


*Citizens of the United States, aliens lawfully admitted for permanent residence, unincorporated associations a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States.
12.22.2005 10:12pm
Medis:
Just for everyone's information, this is the clause the letter is claiming turns any procedure authorized by law into a FISA procedure:

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

I note that 18 USC 2511 distinguishes between procedures in FISA and procedures in Title 18:

"and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted."

I guess whoever drafted this language somehow overlooked that the procedures in Title 18 were already procedures in FISA because of 1809.
12.22.2005 10:14pm
Andrew Hyman (mail) (www):
Engaging in electronic surveillance as authorized by statute is a procedure.
12.22.2005 10:19pm
Medis:
Andrew,

I'm not sure I even understand that claim. A statute can authorize something without providing any procedures someone needs to follow. Alternatively, a statute can authorize nothing on its own but provide procedures someone needs to follow in order to exercise powers authorized by other statutes.

In any event, that claim is irrelevant because 1809 does not "authorize" anything.
12.22.2005 10:27pm
Andrew Hyman (mail) (www):
Medis, FISA talks about "electronic surveillance ... as authorized by statute." This could mean on of the following two things:

1) "electronic surveillance as authorized by this statute and by chapter 119 or 121 of Title 18" or

2) "electronic surveillance as authorized by any statute."

It seems like you’re saying #1, and DOJ is saying #2. Am I misunderstanding? Also, #2 seems like a more natural reading.
12.22.2005 10:40pm
Medis:
Andrew,

No, I am not saying #1. What I am saying is that 1809 does not "authorize" anything. Rather, 1809 defines a crime: conducting electronic surveillance without statutory authorization. But 1809 does not itself authorize electronic surveillance. Indeed, as far as 1809 is concerned, at any given time there could be no statutes authorizing electronic surveillance, or hundreds of such statutes, or anything in between.

and I actually think this point is completely obvious. Indeed, the plain language of 1809 assumes that authorization must occur elsewhere, and that 1809 itself does not provide authorization.
12.22.2005 10:52pm
The Original TS (mail):
Although the rest may be ignorant, Al Qaeda knew it takes a minimum of [72 hours] to get an order, so used these modes of communication for [71 hours] maximum.

I think you've got this exactly backwards. The Executive can wiretap a subject for 72 hours without getting a warrant. In other words, the Executive can start surveilance and get its warrant after the fact.

The NSA warrantless surveilance isn't about whether The FISA is flexible enough to allow wiretapping terrorists in fluid situations. It's about The White House's philosophical insistence that the ordinary Constitutional strictures do not bind it in the war against terrorism.
12.22.2005 10:55pm
PhilaMark (mail):
Can someone explain to me how the NSA's surveillance program fits the definition of "electronic surveillance" in Section 1801(f) of FISA? As I read it, even in peacetime, to fall within the FISA, the commuication must be acquired in the United States and/or under circumstances in which a warrant would be required for law enforcement purposes. The Supreme Court has ruled that warrantless searches are constitutional in the context of border crossings, and it doesn't seem implausable to me to treat international telephone calls or e-mails as a type of border crossing. So, intercepting international calls outside of the US doesn't constitute "electronic sureillance," even if a US citizen is on one end of the line. In short, regardless of whether we are at war, the NSA program has always been legal. How am I wrong?
12.22.2005 11:12pm
Kaz (mail):
Apodaca, I stand corrected and I withdraw the Carter citation. I wasn't very comfortable referencing Carter favorably anyway. He was the last Democrat I ever voted for for a federal office. I suppose he deserves some credit for that.

However the Clinton and Reagan quotes still stand, and remember during the Clinton era they were specifically talking about warrantless searches of Aldrich Ames, an American Citizen.
12.22.2005 11:15pm
frankcross (mail):
Kaz, the warrantless search of Ames was legal under FISA. Only later was the statute amended to extend to such physical searches.

I suppose there is an Article II argument that FISA is unconstitutional, though it seems weak under Youngstown. But even the Administration is not making that currently. And do you have any evidence that is textual or drawn from original intent to support the Article II argument?
12.22.2005 11:24pm
Andrew Hyman (mail) (www):
Medis, it seems plausible to interpret 2511 as saying:

"procedures INDICATED ALLOWABLE BY this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted."

And, when FISA says that electronic surveillance authorized by other statutes is not prohibited and is not an offense, isn't that the same as saying that electronic surveillance authorized by other statutes is indicated by FISA to be allowable?

Incidentally, the exclusivity requirement in 2511 seems essentially to be a requirement that electronic surveillance must be indicated allowable by statute, instead of by executive order or the like.
12.22.2005 11:28pm
MMK (mail):
To begin with the Sealed case never once held that the President has the inherent authority to conduct warrantless surveillance. It merely, to use its phrase, "assumed" this to be the case and did so by relying on a Fourth Circuit opinion that addressed the topic pre-FISA. Dicta, which is what assuming something to be the case is, is neither a holding nor binding on any court, even the FISA Court of Review. Thus, to extrapolate from an assumption to a binding holding from a court is completly mistaken.

What is interesting, and which no one discusses, is what the Fourth Circuit itself said about warrantless surveillance for foriegn info. (By the way the Supreme Court in Keith held that the President does not have the inherent authority to conduct warrantless surveillance for purposes of domesitic info. — given that the NYT has reported that some of the intercepts by the NSA were purely domestic in nature this raises the spectre that there may have been a violation of the Supreme Court's holding in Keith in how this program was conducted; I take no sides on that question because it would require determining when something that begins as a search for foreign info turns into one for domestic info).

Back to the Fourth Circuit opinion. First that opinion did hold that the President does not have the inherent power to conduct warrantless surveillance once the purpose for that surveillance is to build a criminal case against the individual but does so with respect to simply collecting foriegn info.. This raises the question of whether the info collected under the President's program was used in criminal proceedings. If so, then he exceeded his constutional powers per the Fourth Circuit. (The Sealed Case, rightfully I believe, found this distinction between the purpose for the collection to be untenable thus in effect rejecting the Fourth Circuit's constitutional analysis concerning what limits, if any, do exist againt the executive branch's warrantless surveillance of Americans for the purpose of collecting foreign info.).

Here's the kicker, in the course of making this finding the Fourth Circuit questioned even its own holding in light of the recent passage of FISA. It noted that FISA's ability to impose a warrant-requirement of sorts on the collection of foreign info. vitated its own belief that no such warrant could be imposed because of the complexity of the matters and the judiciary's inexperience in dealing with them. Here is the money quote:

"The elaborate structure of the statute demonstrates that the political branches need great flexibility to reach the compromises and formulate the standards which will govern foreign intelligence surveillance. Thus, the Act teaches that it would be unwise for the judiciary . . . to attempt to enunciate an equally elaborate structure for core foreign intelligence surveillance under the guise of a constitutional decision."

This strongly suggests to me that the Fourth Circuit felt that the extent of Presidential powers in the collection of foreign information was co-terminous with the limits placed in FISA. That is, if you violate FISA you also exceed the scope of your powers.
12.22.2005 11:38pm
Medis:
Andrew,

First, no, it isn't plausible to interpret 2511 that way, because that changes the meaning. 2511 actually says "procedures IN this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978." So, you must look IN those statutes for the procedures. Changing "in" to "indicated allowable by" changes the meaning. And incidentally, it changes the meaning in an absurd way. As I noted, it would be redundant to reference chapters 119 and 121 if FISA incorporated all other statutes, because then FISA would have incorporated 119 and 121 already. Indeed, it would be pointless to incorporate all other statutes into 2511(2)(f) via FISA 1809--you might as well just directly say in 2511 that electronic surveillance can be conducted by any procedures under any statute.

Which is apparently what you are interpreting 2511 to say (that as long as there is some statutory authorization, that is enough). But again, they easily could have just said that in 2511. Instead, they specifically reference the procedures in three places in the US Code, and say those are the exclusive means. Which very clearly indicates that 2511 was intended to do more than require just some statutory authorization--it was intended to limit where such authorization could occur.

Second, no, the fact that FISA only makes unauthorized surveillance a crime does not mean it is "indicating" that such other surveillance is "allowable". Indeed, it is explicitly this OTHER statute that makes the surveillance "allowable", not the criminal provision.

I really can't express strongly enough what tortured reasoning is required for the letter's conclusion. The obvious reading is that when 2511 refers to procedures in FISA, it means procedures actually in FISA. And when 1809 says it is a crime to conduct surveillance except as authorized by statute, it is defining a crime, not incorporating other statutes into FISA.
12.22.2005 11:53pm
Andrew Hyman (mail) (www):
Philamark, I assume that some international calls were intercepted inside the U.S. and therefore that qualifies as "electronic surveillance."
12.23.2005 12:01am
PhilaMark (mail):
Andrew:

Why would you presume the NSA would deliberately violate the FISA by intercepting calls inside the US, when they could just as easily do it outside the country, and stay legal? By the way, Powerline blog has an excellent analysis of the legality of the NSA program that you would find interesting.
12.23.2005 12:05am
PhilaMark (mail):
Andrew:

Why would you presume the NSA would deliberately violate the FISA by intercepting calls inside the US, when they could just as easily do it outside the country, and stay legal? By the way, Powerline blog has an excellent analysis of the legality of the NSA program that you would find interesting.
12.23.2005 12:06am
Medis:
Philamark,

But Powerline does not know the details of the program. The Administration does, and they are NOT arguing that all the surveillance complied with FISA.
12.23.2005 12:10am
MMK (mail):
I have read the DOJ's letter and I have to agree with Medis that is legally bogus. As I read the letter, the Congressional resolution authorizing force passed in the days after 9/11 authorizes warrantless surveillance of US citizens even though the resolution itself simply allowed the President to use all necessary "force." Far be for me to quibble with such esteemed lawyers, but surveillance is not force just look up the word's meaning in the dictionary. But the letter then goes on to opine that FISA -- in setting forth the elements of a crime -- somehow also makes an exception to its requirements "except as authorized by statute" the statute in our case being the Congressional resolution. As any lawyer knows the use of the phrase "except as authorized by statute" is commonly used in criminal statute to incorporate the particular statute's provisions into defining the elements of the crime. That is to say when FISA "except as authorized by statute" what it was saying is that it is a crime to engage in surveillance not allowed by the procedures contained in FISA. That's it.
12.23.2005 12:17am
Andrew Hyman (mail) (www):
Well, I've got to say, Medis has me convinced that the DOJ letter is a load of c$@p. I tried to run with it, but it really is "tortured" as Medis argues. Also, Medis convinced me in another thread not to apply the doctrine of expressio unius to the last sentence of the AUMF.

However, I still sincerely believe that the last five words of the AUMF should not be treated as surplusage, and that Congress plainly was trying to protect ONLY the War Powers Act in that sentence, rather than protecting all other requirements (e.g. those of FISA). Moreover, I really do believe that Congress did not intend to make it impossible to use "all necessary and appropriate force" by barring the President from ever deviating from the requirements of FISA. While the AUMF did not repeal any part of FISA, I do believe that it superceded FISA as applied to situations where FISA prevents "all necessary and appropriate force."

Philamark, the administartion would probably have simply denied that it is engaging in any unwarranted electronic surveillance within the meaning of FISA, if that was the case. My guess is that there are technical reasons why intercepting some calls can more effectively be accomplished using an acquisition device in the U.S. that intercepts a wire line.
12.23.2005 12:18am
Kyle Henderson (mail):
For starters, they've tied their authority directly to the wording of the AUMF.

No, they tied it to past FISC decisions, the Prize Cases, the precedents referenced in the preamble of the AUMF, Hamdi's interpretation of AUMF, and the realities of how the War on Terror is waged. It is erroneous to state that DOJ has sketched a mere textual argument.
12.23.2005 12:20am
Kyle Henderson (mail):
surveillance is not force

Ah, but this is the silly kind of literalist argument divorced from reality that courts regularly eschew. In war, culling intel is a necessary incident to using force, and so it can be included in a reasonable interpretation of the legal consequences of those words.
12.23.2005 12:24am
Medis:
Andrew,

I'm not sure you answered this question in the other thread--you were heading off as I recall--but I wanted to get your thoughts (or you can redirect me if you did answer this already).

Hypothetically, suppose a court was trying to interpret the "necessary and appropriate" clause in the 2001 AUMF with respect to surveillance (for the sake of argument, I'm assuming surveillance is force). Where do you think the court should look for a definition of what surveillance is necessary and appropriate within the meaning of the 2001 AUMF?
12.23.2005 12:24am
subpatre (mail):
The Original TS wrote: "I think you've got this exactly backwards"
I think not, I think you can't read [variables]. Just for you, I'll re-write:

Anderson wrote: "Since you deeply respect Harmon, would you please explain how "critical intelligence capabilities" have been damaged by the story's going public?"

Anderson, dk35, unenumerated, The Original TS, Jojo, many others and Al Qaeda all truly believed that certain* communications cannot be surveilled --indeed it's illegal to do so-- without a FISA warrant.

Although the rest may be ignorant, Al Qaeda knew it takes a minimum of [some amount of time] to get a warrant, so used these modes of communication for [some amount of time, minus an hour] maximum. Since the Times story broke, Al Qaeda's changed their op manual and moved on; the rest are arguing to restore the status quo.

Petty street hoods all know what conditions police can search without warrants, when warrants are required, amd how long it takes the local judge/magistrate to issue one. They adjust their behavior accordingly; and it's simple enough to scale the model to Al Qaeda.

One of Al Qaeda's MOs was leveraging our characteristics against us. It's improbable that an organization with it's own coherent philosophy, religion, analysis of western law and culture would not take advantage of warrant requirements. If so, and the warrant requirement was illusory, then it was (past tense) a great advantage for the US.


*Citizens of the United States, aliens lawfully admitted for permanent residence, unincorporated associations a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States.
12.23.2005 12:27am
Jack John (mail):
The obvious reading is that when 2511 refers to procedures in FISA, it means procedures actually in FISA. And when 1809 says it is a crime to conduct surveillance except as authorized by statute, it is defining a crime, not incorporating other statutes into FISA.

Just to avoid bickering down the line, this is a matter of statutory construction. Now, were this a case of statutory construction, and these statutory provisions were being read in isolation, then perhaps what you say would make great sense. But that is not how legal reasonaing works. I can point to many a statutory provision that was obviously intended to be read one way but was misinterpreted by the courts and now means something else. Often that happens in light of a decision interpreting a different statute that for some reason is adjudged, perhaps improperly, to be similar. Securities regulation is rife with these kinds of problems. It happens not only under statutory authority, but also with doctrine under the Contracts Clause and doctrine under the Eleventh Amendment. So simply reading the text of the statutes and construing them in a plausible way consistent with their plain meaning won't get you very far.

That said, the DOJ letter does a good job of dealing with the countervailing arguments that, taken together, outweigh your plain reading of the statutes.
12.23.2005 12:31am
Jack John (mail):
Thus, to extrapolate from an assumption to a binding holding from a court is completly mistaken.

Not really. Lawyers do this all the time. Courts sometimes agree with them, sometimes they don't. It's a worthwhile tactic.
12.23.2005 12:35am
Medis:
subpatre,

I'm not sure I understand. What AQ would know is that we could conduct surveillance without a warrant for 72 hours, and then continue to conduct surveillance if we got a warrant within 72 hours.

How would using a method of communication for less than 72 hours avoid such surveillance?
12.23.2005 12:35am
Medis:
Jack John,

I agree that sometimes courts have misinterpreted statutes, and it is always possible they will do it again in any given case. But I wouldn't want to rely on that possibility.
12.23.2005 12:38am
NJR:
subpatre:


Although the rest may be ignorant, Al Qaeda knew it takes a minimum of [some amount of time] to get a warrant


The AG can start a wiretap as soon as it is desired. They then have 72 hours to get a warrant from FISC, so there is no [some amount of time] delay.

§ 1805. Issuance of order
(f) Emergency orders

Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;
he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.
12.23.2005 12:40am
Jack John (mail):
This is a frame of the legal issue does not reflect the actual position of one making your argument:


I agree that sometimes courts have misinterpreted statutes, and it is always possible they will do it again in any given case. But I wouldn't want to rely on that possibility.

DOJ's argument is that the scope of AUMF was already decided in Hamdi. The relevant "mis"-interpretation already took place. In Hamdi, the scope of AUMF was determined to be large enough to fairly encompass the present circumstances. DOJ is simply asking that Hamdi, which is good precedent, be properly applied.

One making your argument is in the position of asking the court to trim back its ruling in Hamdi. So, why should we overrule Hamdi?
12.23.2005 12:44am
Andrew Hyman (mail) (www):
Medis, you inquire where a court should look for a definition of what unwarranted surveillance is "necessary and appropriate" within the meaning of the 2001 AUMF. Well, the first place is the Fourth Amendment. If the reasonableness standard of that Amendment is violated, then unwarranted surveillance is not "necessary and appropriate."

Other than that, I'd think a court would try to respect the President's own determination about what unwarranted surveillance is required in order to achieve the goal of using "all necessary and appropriate force." However, if a court determines that the President very clearly could have achieved that goal by following all of the FISA procedures, then a court would be obliged to say that the President has violated the statutory scheme set up by FISA as modified by the AUMF. Then the only remaining issue would be whether that scheme is constitutional (i.e. whether it infringes on the President's inherent powers). I think it would be held constitutional.
12.23.2005 12:51am
Medis:
Jack John,

Actually, my argument does not require overruling Hamdi. Hamdi. Rather, for numerous reasons, Hamdi is easily distinguishable.

To review, Hamdi interpreted the 2001 AUMF in light of 18 USC 4001(a), which provides, "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." The holding of Hamdi is that the 2001 AUMF was the necessary Act of Congress for the purposes of the 18 USC 4001(a).

Even with just 1809 to work with, Hamdi is potentially distinguishable. For one thing, 1809 uses different language than 4001(a). Rather than referring to an "Act of Congress", 1809 provides, "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute." As MMK points out, the language "as authorized by statute" is often interpreted in criminal law as referring to the particular statute in which the criminal offense is defined. Indeed, the DOJ letter implicitly acknowledges this argument. So, this difference in language ("pursuant to an Act of Congress" versus "as authorized by statute") could lead to a different result.

Another obvious distinction is that Hamdi dealt with detention, and this case would involve surveillance. It is at least open to question whether surveillance counts as a use of "force" within the meaning of the 2001 AUMF, even if detention was an example of the use of force.

But neither of these potential distinctions is actually relevant to my particular plain text argument (although both might be sound arguments). Rather, my argument is based not on 1809, but rather on 18 USC 2511, which provides that Title 18 and FISA are the exclusive means by which such surveillance may be conducted.

And there is simply nothing like 18 USC 2511 in Hamdi. So, Hamdi is easily distinguishable on that ground alone.
12.23.2005 1:00am
Jack John (mail):
And there is simply nothing like 18 USC 2511 in Hamdi. So, Hamdi is easily distinguishable on that ground alone.

No, that argument is entirely non-responsive. DOJ's argument, as I said above, is that Hamdi determined the scope of AUMF to be large enough to encompass both 4001 and 2511. You, again, are trying to trim Hamdi down and narrow it to only statutes substantially similar to 4001. Why should the court do that?
12.23.2005 1:03am
Medis:
Andrew,

Thank you--that was an interesting answer. I certainly think you could be right as a predictive matter--it would depend, I think, on how the court categorized the case under the Youngstown-concurrence framework.
12.23.2005 1:04am
Jack John (mail):
And, Kyle dealt with the "surveillance-does-not-equal-force" argument above.
12.23.2005 1:05am
Medis:
Jack John,

Initially, it may be useful for us to define some terms. You are right that the DOJ wants Hamdi to control this case, and I think it could be distinguished. In that sense, I am suggesting a more limited scope for the holding of Hamdi than the DOJ. But that does not mean I am saying Hamdi should be "overruled".

As for why a court might do that--well, the obvious answer is just that 18 USC 4001(a) and 18 USC 2511(2)(f) say very different things. Again, 4001(a) is open-ended: it refers to any Act of Congress. In contrast, 18 USC 2511(2)(f) is closed--it says that Title 18 and FISA are the "exclusive means".

So, since the statutes are different, the outcome could be different. And I guess I don't see why that is a "non-responsive" point.
12.23.2005 1:11am
Medis:
Jack John,

On "force"--I'm actually not sure what a court might say on this subject. Detaining people captured on a battlefield is certainly an easier case than conducting surveillance far from the battlefield. But, you may be right that force is still broad enough to encompass surveillance.
12.23.2005 1:14am
MMK (mail):
As to the word force, if it had the permutations Kyle believes it does then it would be odd that just moments before the resolution was scheduled for a vote the administration would seek to make edits to the resolution's vebiage to "necessary force in the United States and in other nations." Seems my overly "literal" view, which I gauge to mean that I take words for their natural meaning, was the one even the administration knew courts would subscribe to.

As to Jack John's comment that dicta is "used by lawyers all the time," this is a far different view of the Sealed Case than that given by the commentators over on the Power Line blog who somehow read the case as standing for the proposition that warrantless surveillance for foreign information is consistent with presidental powers. As I made clear the Sealed Case never made such a holding on this point one way or the other. Moreover, this is not even dicta because even then there is some reasoning given by the court for the non-holding albeit on a issue that is not determinative of the case before it, here the court simply "assumed" (which most commentators have coveniently forgotten to include) this to be the case. Any lawyer who would give this case as authority, even so-called persuasive authority, would face a strong rebuke from the court he made it to. "Let me understand you counselor, I should agree with your position because some court assumed this to be true but never gave any reasoning in support of this assumption?"
12.23.2005 1:17am
Jack John (mail):

So, since the statutes are different, the outcome could be different.



1. Not if AUMF is broad enough to encompass both statutes. I'm asking you why AUMF isn't broad enough to encompass both statutes, even though they have some textual differences. Rulings, on the day they are handed down, have application greater than simply to the facts of the case before the court. They also reach all similar cases pending or on direct review and affect any new cases brought before the court. You are arguing, years after Hamdi was handed down, that the ruling should now be narrowed to its facts. You are in fact arguing that Hamdi's scope should retroactively be narrowed, which would require overruling it, or as I put it, trimming it.

2. That 4001 dealt with detention makes DOJ's interpretation of Hamdi's breadth more plausible than yours. The civil liberty at issue in the case of detention has more constitutional grounding and historical pedigree than the civil liberty at issue in the case of electronic surveillance. We know for a fact that the word 'liberty' was intended to apply to physical restraint; by contrast, protection from data-mining requires a higher level of generality. If Hamdi encompasses 4001, which deals with detention, it necessarily encompasses 2511, which deals with electronic surveillance, because the civil liberty interest is of less weight. This tracks with Andrew's argument.) Mere textual differences are insufficient, so pointing them out is non-responsive.
12.23.2005 1:23am
Jack John (mail):
Let me understand you counselor, I should agree with your position because some court assumed this to be true but never gave any reasoning in support of this assumption?

No, that's not how it would go down. Your hypothetical court, like that court, would simply assume it true if it could avoid deciding the issue, but if the issue were squarely presented it would cull together all the assumptions and say, every court that has looked at it has presumed the President had this power, so we explicitly hold that he has it. Rebuttable presumptions often lurk around as presumptions and then become law later on. It happens all the time. I have never heard of it happening the way you say, though: do you have an example?
12.23.2005 1:27am
Jack John (mail):

if it had the permutations Kyle believes it does then it would be odd that just moments before the resolution was scheduled for a vote the administration would seek to make edits



That is from an op-ed by ex-con Tom Daschle. So we're supposed to believe ex-con Tom Daschle? Why is he the paragon of credibility? And does ex-con Tom Daschle's opinion beat the Hamdi ruling?
12.23.2005 1:30am
Jack John (mail):
I meant ex-congressman.
12.23.2005 1:31am
Andrew Hyman (mail) (www):
Jack John, here's an excerpt from Hamdi:

[W]e conclude that the .... AUMF satisfied §4001(a)'s requirement that a detention be "pursuant to an Act of Congress..."


But suppose 4001(a) had said that a detention must be "pursuant to certain acts of Congress that do not include the AUMF." In that case, the holding of Hamdi would have made no sense. And that is the kind of case Medis argued is present with the NSA controversy.
12.23.2005 1:31am
MMK (mail):
The problem with the use of the Hamdi case is the statutory language in that case is light years away from the one the DOJ is seeking to tether to in the letter referenced above. In Hamdi the relevant language was "“[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." This statute sought to place affirmative limits on government power. FISA's supposed corrollary statutory provision seeks to define what is and is not a crime, not what is and what is not within the power of the government. It is one thing to argue that AUMF expanded the category of people who could be detained, it is quite another to argue that it produced a wholesale repudiation of criminal statutes (perhaps even other criminal statutes are lifted as well?).
12.23.2005 1:33am
Medis:
Jack John,

Another definitional point: I would only say I have "limited a case to its facts" if I claimed it only applies to the facts of that case, and NO other facts. But if I merely distinguish a later case, I am not claiming that NO other cases might be controlled by the first case.

So, the precise issue is why I think one can distinguish 2511(2)(f) from 4001(a).

Your point, I believe, is that the subject matter of the statutes (surveillance versus detention) is not a valid ground for distinguishing them. As I expressed before, I'm actually not sure how that would play out--I could see it going either way.

However, I did not distinguish the statutes on the basis of subject matter. Rather, I distinguished them on the basis of the language--in particular, 2511(2)(f) provides for Title 18 and FISA being the exclusive means for surveillance, whereas 4001(a) allows authorization by any Act of Congress.

Again, I'm not sure why this distinction is unclear. But maybe a hypo would help. Suppose 18 USC XXX provided that "the procedures in 50 USC YYY are the exclusive means by which the government may detain battlefield prisoners." In that case, the Court might have held in Hamdi that the President had to follow the procedures in 50 USC YYY, even though it held that he was authorized to detain battlefield prisoners by the 2001 AUMF.

Of course, there is no 18 USC XXX and 50 USC YYY. But there is an 18 USC 2511 and FISA. Which might make all the difference in this case, as opposed to Hamdi.
12.23.2005 1:38am
subpatre (mail):
NJR: Are you suggesting the Attorney General routinely claim an "emergency" to sidestep the regular warrant procedure?

I guess I'm at a loss here:
On one side there's slews of comments claiming this (NYT revelation) warrantless surveillance of US persons is awful, illegal, impeachable, sign of the Apocalypse, dictatorship, etc. etc. Medis has been one of the loudest.
Now you're saying this warrantless surveillance of US persons is fine and dandy if it's called an "emergency". Are you suggesting there's a loophole in FISA?
12.23.2005 1:39am
MMK (mail):
an assumption is not a holding as it was not necessary to the case. to cull together assumptions strikes me as a bizzare method of legal reasoning. perhaps a better phrase would be to cull together dicta from prior cases, but again as I explained above the Sealed Case did not even provide dicta but merely assumed. Moreover, you also forget that in the same passage where that court assumed this to be the case it also effectively undercut the very reasoning of a case that it relied upon for making that assumption.
12.23.2005 1:40am
Jack John (mail):

But suppose 4001(a) had said that a detention must be "pursuant to certain acts of Congress that do not include the AUMF." In that case, the holding of Hamdi would have made no sense.



That is well and nice, but that is a textual difference that SCOTUS can feel free to disregard. I would advise reading the last paragraph of Scalia's concurrence in Lockhart v. United States.

That a ruling would have "made no sense" is also a non-responsive argument, as I addressed above. Often statutes are misread by courts; the decisions bind anyway. The Court can very easily read-out the textual differences as it did in Lockhart just this term and hold Hamdi to apply because the civil liberty implicated in in Hamdi was of greater weight than the civil liberty implicated in a 2511 case, the textual differences in the statutes notwithstanding. In other words, AUMF is broad enough to encompass both statutes, pursuant to Hamdi.

None of your arguments to the contrary, frankly, is convincing.
12.23.2005 1:42am
Jack John (mail):

to cull together assumptions strikes me as a bizzare method of legal reasoning.



So is construing an explicit statute contrary to its plain meaning. It happens all the time. It happened just this term. See Lockhart v. United States, or our Contracts Clause jurisprudence, or our Eleventh Amendment jurisprudence, etc.
12.23.2005 1:44am
MMK (mail):
This is not a matter of arguing that Hamdi would make no sense, it is that the DOJ's reading of FISA makes no sense as the stautory interpretation of a different statute in Hamdi (which no one disagrees with was correct) has no application in construing FISA. This has less to do with how to read AUMF than with how to read FISA.
12.23.2005 1:46am
Jack John (mail):

the precise issue is why I think one can distinguish



No, I have been quite clear. Dsitinguishing gets you nowhere. I accept that the statutes are textually different. The argument is that Hamdi encompassed them both, anyway, at the time Hamdi was decided. Trying to narrow that holding is an implicit overruling.
12.23.2005 1:47am
Medis:
Jack John,

You might want to read up a little higher in Scalia's concurrence in Lockhart (for what he has to say about implied repeals).
12.23.2005 1:48am
Jack John (mail):

This has less to do with how to read AUMF than with how to read FISA.



Only if you presume that Hamdi did not encompass 2511 as well as 4001. Why would a court presume that when DOJ is arguing to the contrary? That would not be impartial adjudication.
12.23.2005 1:49am
Jack John (mail):

You might want to read up a little higher



That part is irrelevant to our discussion.
12.23.2005 1:50am
MMK (mail):
We are not talking about how the Supreme Court interpreted or misinterpreted the Contracts Clause we are talking about how to construe FISA. It does seem bizarre that as a method of construing a statute we should take into consideration that courts regularly misinterpret statute and then proceed to use this "method" to interpret (or perhaps misinterpret) another one whose meaning is clear on its face.
12.23.2005 1:50am
Medis:
Jack John,

I don't think the semantics matter. But for what it is worth, this is from the law.com legal dictionary:

"distinguish
v. to argue that the rule in one appeals court decision does not apply to a particular case although there is an apparent similarity (i.e. it is 'distinguished')."

Anyway, a court would not need to "presume" that 2511 and 4001 were different. Rather, they could read the statutes and conclude they were different.
12.23.2005 1:52am
Medis:
Jack John,

Of course that part is relevant. Given the language of 18 USC 2511, the 2001 AUMF would have to implicitly repeal 18 USC 2511. So the rules for implied repeal are highly relevant.
12.23.2005 1:53am
MMK (mail):
It did not encompass FISA because the Supreme Court was not presented with whether Hamdi's "detention" was somehow also in conflict with FISA's "suveillance" provisions. I do not know how to make this more clear than that. Hamdi does not control because it was construing a different statute in connection with the AUMF. Simply put, how one statute interplays (or doesn't) with AUMF says nothing on how a completely different statute (see Medis comments on why FISA is different statutory animal) interplays (or doesn't) with the AUMF.
12.23.2005 1:54am
Andrew Hyman (mail) (www):
Jack John, I'm on your side regarding the bottom line, and I'm also on the side of DOJ's bottom line. I just think that you and they get there via an incorrect path.

Anyway, I did take a look at Lockhart. The statutory provision Scalia was talking about said: "No other provision of law, enacted ... after April 20, 1983, may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section." In other words, Congress was attempting to thwart the will of future congresses, and Scalia was simply pointing out that such a provision is invalid. Scalia was correct; such a provision is no more valid than a provision saying that a statute may never be amended. But I don't see anything comparable happening with Hamdi or FISA.
12.23.2005 1:55am
Kyle Henderson (mail):
Scalia: We have made clear in other cases as well, that an ex-press-reference or express-statement provision cannot nullify the unambiguous import of a subsequent statute.

I think Scalia's concurrence is relevant, Jack, but it cuts against Medis. 2511 is the prior statute with an express "exclusive means" provision. AUMF is the subsequent statute with an unambiguous import (at least after Hamdi). Therefore, AMUF cuts off 2511 after Hamdi.

The implicit repeals at issue are legislative.
12.23.2005 1:55am
Jack John (mail):
Kyle,
Okay, you're right, if one takes the reasoning at that level of generality. It sounds fine to me.

Andrew,
Kyle is right at that level of generality, you're right at yours (though I would argue that is too narrow a reading). My point in citing to it was that Scalia made a realist point about the futility of Congressional means to limit legislation as if it operates within a legal vaccuum at the end of his concurrence (which is not law, anyhow): "I think it does no favor to the Members of Congress, and to those who assist in drafting their legislation, to keep secret the fact that such express-reference provisions are ineffective." In other words, we'll just disregard those textual differences.
12.23.2005 2:00am
MMK (mail):
Implict repeal. So if the criminal provisions of FISA have been implictly repealed, what limits are left on what other prior criminal statutes are now gone by the wayside for the administration to transgress? Where is your limiting principle? Without one no court will take your argument. From Kyle and jack's reading of "force" it looks like any limiting principle would be toothless indeed.
12.23.2005 2:00am
Andrew Hyman (mail) (www):
My apologies, I see your point now, Jack John, regarding Lockhart, thanks to Kyle's comment. Maybe we're on the same page after all. The AUMF superceded FISA despite 2511. Yes, that's what I've been saying.
12.23.2005 2:00am
Medis:
Again, Kyle, I think you also need to look at the discussion above (of implied repeals).

So, the question for Scalia at least would be whether the "provisions in [the] two statutes are in irreconcilable conflict, or . . . the latter Act is clearly intended as a substitute."

Personally, I don't think either of those conditions are met. 2511 and FISA can be reconciled with the 2001 AUMF simply by holding that FISA defines what the Congress believes is necessary and appropriate. And there is nothing in the 2001 AUMF that indicates it was intended to susbtitute for 2511 and FISA, nor to my knowledge anything in the legislative history. To the contrary, the subsequent amendment of FISA in the USA-PATRIOT Act suggests the exact opposite.
12.23.2005 2:02am
Jack John (mail):
And there is nothing in the 2001 AUMF that indicates it was intended to susbtitute for 2511 and FISA, nor to my knowledge anything in the legislative history.

But there is Hamdi.
12.23.2005 2:04am
MMK (mail):
Hamdi itself spoke of "incidents of war." One could read that as rummaging through people's home because you suspect but can't even get a FISA warrant (which is predicated on an even watered down probable cause standard) that someone is a terrorist or has "links" to them (whatever "links" means - I suppose we would just leave that to the executive to decide what is a "link" and what is a "terrorist"). You start going down this parth, which is were your arguments go, and a time of war starts looking like a time of dictatorship.
12.23.2005 2:05am
Medis:
Incidentally, although I don't actually think this is an express-reference case, I might note that we are just talking about a concurrence in Lockhart (O'Connor wrote for the other 8 Justices).
12.23.2005 2:05am
Medis:
Jack John,

But the rule for implied repeal is clearly established CONGRESSIONAL intention.
12.23.2005 2:07am
Jack John (mail):
Yes, and Congress passed AUMF, which was interpreted in Hamdi to include incidents of war.
12.23.2005 2:08am
MMK (mail):
Exactly my point Jack but you have not addressed my query
12.23.2005 2:09am
Wintermute (www):
First, the letter pads its arguments with quotations from concurrences. These statements are not statements of law; they're just the opinions of the individual justices who join in the concurrence, serving at most as tipoffs of how those justices would frame the opinion of the Court if they had five votes for those statements in that case.

Look, terrorist attacks do not endanger national security, in the sense that they will cause the overthrow of our government and the installation of Islamic rule. Thus, the letter's recitation that security is the most important thing is misleading. Liberty is more precious than security, else why do men walk into a hail of bullets that may cause their death, to secure liberty? The American Revolution certainly endangered the security of the colonies, yet they sorely endangered it to achieve more liberty.

The fact that there will be another terrorist attack sometime, somewhere, that also will not bring this great country down, does not justify a perpetual state of emergency which in turn is alleged to justify any measures the executive wants.

Eventually, in cycles like these, the scared American public relaxes and wants its liberty back. It may be necessary to beef up the statutes or even pass an amendment to deal with terrorism and our own government's tendency to overreact to same; but such will be impossible with the current President and Congressional lineups. That doesn't mean stringent objections should not be made. One that can be registered without a veto-proof majority is refusing to make some or all of the Big Brother Act permanent until we can get a government that is not run by a fear and smear campaign.
12.23.2005 2:10am
Jack John (mail):
Oh, I think this was addressed before. The limiting principle is the Commander-in-Chief Clause of the Constitution.
12.23.2005 2:11am
Jack John (mail):

terrorist attacks do not endanger national security



This argument is self-refuting and destroys its author's credibility.
12.23.2005 2:12am
Andrew Hyman (mail) (www):
Medis, why do you think that the AUMF only sought to protect the War Powers Resolution from being superceded, without seeking to protect FISA (including FISA's 15-day wartime limit on unwarranted surveillance)?

Medis, if the bureacratic hurdles of FISA actually prevent a level of force sufficient for the President to kill Osama Bin Laden, why do you believe that Congress would consider that level of force to be "necessary and appropriate"?

Medis, why is it not possible that AUMF could --- instead of substituting for 2511 and FISA --- only supercede them "as applied" in situations where 2511 and/or FISA would preclude "all necessary and appropriate force"? After all, there would then be nothing inconsistent about amending FISA in the USA-PATRIOT Act.

I've acknowledged some of your good points. Let's have some reciprocation. :-)
12.23.2005 2:12am
MMK (mail):
The Commader-in-Chief clause. so how would this clause operate in real terms to limit the abuse i have described. If by commander-in-chief you mean only in times of war, there are a number of problems with this limitation. The most notable being who decides when a war is over? I would assume it is the commander-in-chief, the one who has all this unfettered power you are willing to give to him. Do you honestly believe a dictator will give up his powers. I do not have much faith that there are many, if any, Cinncinatus out there.
12.23.2005 2:16am
Jack John (mail):

You start going down this parth, which is were your arguments go, and a time of war starts looking like a time of dictatorship.



I do not believe that relying on the Commander-in-Chief Clause as a limiting principle leads to dictatorship. I quote here from a Wasington Post article:


To a Washington Post reporter who asked about "unchecked" power, Bush retorted: "To say 'unchecked power' basically is ascribing some kind of dictatorial position to the president, which I strongly reject."
12.23.2005 2:19am
MMK (mail):
Medis, why do you think that the AUMF only sought to protect the War Powers Resolution from being superceded, without seeking to protect FISA (including FISA's 15-day wartime limit on unwarranted surveillance)?

But the president's plan goes well beyond FISA's 15 day limit. So if Congress sought to protect this limit through passage of AUMF, this does not held the administration's cause as the program in question clearly exceeded this limit.
12.23.2005 2:19am
MMK (mail):
Wait, wait Jack if you are going to critize my use of Daschle's quotes (and I believe your phrase was how can you trust his word), then I must beg to differ with your invokation of President Bush's words as to whether or not he has dictorial aspirations (even if for beneficial purposes).

As a final adieu, I believe a paraphrased quote from Ben Franklin is appropriate: Those who are willing to sacrifice essential liberty for temporary safety are neither deserving of liberty or safety.
12.23.2005 2:22am
Kazinski:
There are many here that would have you believe that FISA could trump the Presidents power under Article II to conduct warrantless searches, but that is quite a stretch. That would be like saying that Congress could pass a law requiring Senate approval to fire a Cabinet officer. Or modify the conditions of the President's veto. The Courts have always been very skeptical of legislative attempts to enhance the Constitution, such as the line item veto, term limits, the religious freedom restoration act.

But most ridiculous argument I've heard is that Congress one week after 19 embedded moles launched a foreign conceived and directed attack against the US from within the US, had no intention of conferring intelligence gathering authority on the President when they declared war:


[R]ender 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



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.


Some in Congress may well regret this re-affirmation of the Presidents Article II powers, but they haven't used their reference to the War Powers act to revoke them either.
12.23.2005 2:24am
Jack John (mail):

I must beg to differ with your invokation of President Bush's words as to whether or not he has dictorial aspirations



My point was only that it depends on who is in office to exercise the Commander-in-Chief power. If you don't want a dictator in office, don't elect Hillary.
12.23.2005 2:26am
Andrew Hyman (mail) (www):
MMK, I asked Medis why the language of the AUMF failed "to protect FISA" and I did not (as you suggest) ask Medis why the language of the AUMF failed "to protect the 15-day wartime limit of FISA."

The last sentence of the AUMF is: "Nothing in this resolution supercedes any requirement of the War Powers Resolution." The last five words are not suplusage, and they considerably narrow the meaning of the sentence. Congress obviously wanted to avoid the implication that the AUMF would supercede nothing.
12.23.2005 2:31am
Medis:
Andrew,

(1) Because the AUMF dealt with the same subject matter as the War Powers Resolution, and therefore Congress apparently felt (perhaps reasonably) that it needed to clarify that the AUMF did not waive any requirements of the War Powers Resolution. In contrast, if they did not think there was any danger of the AUMF being interpreted as repealing 2511 and FISA, nor any of the other statutes that deal with the military (such as the UCMJ), then they might not see a need to mention them.

(2) This is a slightly odd question. You are stating a hypothetical state of affairs (FISA would stop the President from killing Osama), and then asking why Congress would believe that FISA was still a good definition of necessary and appropriate surveillance. Given that state of affairs, and given that Congress was aware of that state of affairs, I have no doubt Congress would hold no such belief. But the relevant question is what Congress actually believed when they passed the 2001 AUMF, and I think the overwhelming evidence is that they saw at least FISA as amended by the USA-PATRIOT Act as a good definition of necessary and appropriate surveillance. So, I guess they didn't believe FISA as amended would prevent the President from killing Bin Laden.

(3) I think they could have done this. The question is whether they actually did it. And the problem with that reading is that FISA on its own terms deals with the need to conduct surveillance in order to prevent actual attacks, sabotage, terrorist acts, and so on. So, I don't think it makes sense to see FISA as amended as providing a rule that did not apply in the situation as described in the 2001 AUMF. Rather, FISA as amended was explicitly intended to deal with that situation as well.

In general ... I suppose I am coming across as stubborn, but I really do think there is a very obvious and very uncomplicated way to explain why in quick succession the Congress both passed the 2001 AUMF and the USA-PATRIOT Act (amending FISA). And that would be to say that Congress saw them as compatible, not in conflict.

So, I really see this attempt to rely on the 2001 AUMF as authority to avoid FISA as a complete non-starter. In other words, I am extremely skeptical of the view that Congress had any such intention when it passed the 2001 AUMF.
12.23.2005 2:35am
Evelyn Blaine:


There are many here that would have you believe that FISA could trump the Presidents power under Article II to conduct warrantless searches, but that is quite a stretch. That would be like saying that Congress could pass a law requiring Senate approval to fire a Cabinet officer. Or modify the conditions of the President's veto.


The obvious distinction, of course, is that the veto is an explicitly named power, whereas the "power to conduct warrantless searches," if such a thing exists, is at best the implied correlate of a more general shared warmaking power. As for removing cabinet officers, a plausible original-meaning argument could be made that the Constitution doesn't determine anything about it one way or the other. I don't think this argument is right (i.e. I think Myers was rightly decided), but it's not silly or incoherent.
12.23.2005 2:41am
Medis:
Kaz,

The most obvious reason why the Congress would not see a need to grant the President intelligence gathering powers in the 2001 AUMF is that he already had them (under FISA). And insofar as the Congress thought the old FISA system was inadequate, they addressed that problem in the USA-PATRIOT Act.
12.23.2005 2:46am
Andrew Hyman (mail) (www):
Medis, Congress obviously believed that the AUMF was necessary and appropriate, or they wouldn't have passed it. The purpose of the words "necessary and appropriate" in the AUMF was to delegate discretion to the President (and also possibly to the courts).

Moreover, I never suggested that FISA as amended provides "a rule that did not apply in the situation as described in the 2001 AUMF." I believe that FISA as amended does provide a rule that generally applies in the situation as described in the 2001 AUMF, except in particular, exceptional real-world instances where such application would prevent the President from using "all necessary and appropriate force" to defeat Al Qaeda.

And finally, the last sentence of the AUMF is: "Nothing in this resolution supercedes any requirement of the War Powers Resolution." If Congress believed that the AUMF superceded no requirement at all (as you apparently believe), then there was no reason to qualify the sentence by adding the last five words.

Well, I guess we'll just agree to disagree. Thanks again for the conversation.
12.23.2005 2:53am
JamesB:
Take a look at this article Tom Daschle wrote for the Washington Post. The telling quote is this.


Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.
12.23.2005 6:46am
Evelyn Blaine:
Just a question for someone with knowledge of federal procedure: is there any plausible way that the FISA Court could try to bring surveillance in violation of the FISA statute to an end, either through its contempt power or through mandamus? (I presume that the All Writs Act applies to the FISA Court?)
12.23.2005 7:07am
SteveW:
Do the rest of you agree with these two observations about the letter?

(1) The letter concedes that Congress has the authority to legislate in the area of wiretaps when one party is a U.S. person and the other party is overseas? Earlier in the week, I thought the Vice President was taking the position that FISA was unconstitutional to the extent that it infringes on the President's power to conduct wiretaps.

(2) The letter concedes that the wiretaps in question would violate FISA, but for the AUMF?
12.23.2005 9:19am
Daniellee (mail):
I qam glad to see that Cass Sunstein, who no one has ever said is in the tank for Bush, agrees with the points I made in my 8:41 PM post last night re: the overwrought claims of usurpation of all that is holy to a free society:

"...I think the reason is we're seeing a kind of libertarian panic a little bit, where what seems at first glance...this might be proved wrong...but where what seems at first glance a pretty modest program is being described as a kind of universal wiretapping, and also being described as depending on a wild claim of presidential authority, which the president, to his credit, has not made any such wild claim. The claims are actually fairly modest, and not unconventional. So the problem with what we've seen from the media is treating this as much more peculiar, and much larger than it actually is...."

His whole analysis can be found at:
http://www.radioblogger.com/#001248

In other words, plain vanilla intelligence gathering, supported by plain vanilla axioms of statutory construction and no power grabbing constitutional claims.
12.23.2005 9:41am
Medis:
Andrew,

(1) I agree that the President has discretion under the 2001 AUMF. But that discretion need not include the authority to violate FISA, or the UCMJ, or any other law applicable to military matters.

(2) My point is just that FISA is intended to deal with these situations, and 18 USC 2511 makes it the exclusive means for doing so. I just think this structure cannot be implicitly repealed by something like the 2001 AUMF (of course, it could have been explicitly repealed, but was not).

(3) I confess to not really understanding your surplusage argument. I don't see the words "requirements of the War Powers Resolution" as including a surplusage on my reading. Rather, I see the words "of the War Powers Resolution" as an appropriate clarification of the word "requirements" (in other words, they answer the obvious question--which requirements?--one would otherwise ask). And the fact that they specifically intended to save the requirements of the War Powers Resolution does not mean they specifically intended not to save something else--that to me is a non sequitur.

But even if they did have some unnamed other statute in mind--why FISA? Why not, for example, the entire UCMJ?

And perhaps that is a question worth asking explicitly: do you believe the 2001 AUMF gives the President the authority to order people to violate any provision in the UCMJ provided that he believes doing so would be necessary and appropriate to carrying out his task under the 2001 AUMF?

And even if you believe he SHOULD have that power--do you really think the Congress intended the 2001 AUMF to make the UCMJ advisory in that sense?
12.23.2005 9:51am
CharleyCarp (mail):
I'm not convinced by anything I've seen above that the Supreme Court would for a moment entertain the notion that Hamdi does anything other than make the AUMF the equivalent of a declaration of war for purposes of FISA. Congress authorized war -- and war it is, with all the legal restrictions that apply to war.

As to Keith, Truong etc., we're in pure Youngstown territory, and I don't think, based on his confirmation testimony, anyone ought to be betting on the CJ voting to overturn it.
12.23.2005 10:19am
Medis:
CharleyC,

I agree. To put it in statutory interpretation terms, it is very difficult for me to believe that Congress intended the 2001 AUMF to authorize MORE than what a formal declaration of war would have authorized.
12.23.2005 10:36am
ziske68 (mail):
So here we go again.

Let me start out by saying that all these arguments are necessary and appropriate, and that the liberty vs. security debate is one we need to have. However, just by looking at the fact that this 1 blog has 4 posts with more than 300 comments arguing the legal specifics tell me one thing.....this is a non-starter for the Democrat party. Sure sure, there will be hearings, and much wailing and gnashing of teeth, perhaps even some Feats of Strength by the usual suspects, but in the end this is so completely arguable, that the Administration and the RNC will end up bludgeoning the Democrats with this come election time.

BTW, can someone link me to something that said this was done on U.S. citizens, cause the limited amount I have read has been very non-specific about that.

Darth Rovius has done it again.
12.23.2005 10:57am
Kazinski:
Medis:
What do you think of the Clinton-Gorelick argument that if Congress wanted to set up procedures to obtain Foreign Intelligence warrants that was all well and good. And while the Clinton Administration would use those procedures when it was appropriate, the Adminstration still reserved the right to act outside of FISA when it was deemed necessary. That postition was also advanced by the FISA Court of Review.

It seems to me that the position that the Bush Adminstration is taking is somewhat narrower, that while they had inherent Article II authority, AUMF conffered statuatory authority as well.
12.23.2005 11:03am
John Lederer (mail):
When I practiced law (I'm retired) I always thought that my job before an appellate court and particulalry the Supreme Court was two fold. First I needed to show why the result I wanted was good policy --it was the right result. Second I needed to show the court a way to get there -- by logic, rule of construction, or the constitution.

The discussion here, and on other blogs has been illuminating. It certainly has clarified things for me. I think we all recogize that one can "get there" via something like the DOJ's reasoning. I think we all also recognize that it is a somewhat twisty tortured path. If the issue were just statutory construction, it is possible that it is not the best path.

But, as is usually the case it isn't just a matter of statutory construction. There are grave policy issues present.

There it seems to me. the administration has a very compelling case. A number of figures, and not just those politically biased for the administration, are saying that this program is important. Moreover, our own common sense says it is important. Events say that it likely is important. We are uncertain whether the apprehension of Faris was the result of this program and was an operation FISA's procedures would not have worked for. It is not certain that an examination of Moussaoui's computer pre 9/11 , which the FBI concluded they could not meet the FISA standard for, would have revealed details of the plot. But we can easily picture how these and other similar things we do not know about could make important the ability to conduct this kind of program. We do know that a 3-star non political Director of the NSA said:

Q Have you identified armed enemy combatants, through this program, in the United States?

GENERAL HAYDEN: This program has been successful in detecting and preventing attacks inside the United States.

Q General Hayden, I know you're not going to talk about specifics about that, and you say it's been successful. But would it have been as successful -- can you unequivocally say that something has been stopped or there was an imminent attack or you got information through this that you could not have gotten through going to the court?

GENERAL HAYDEN: I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available.

Q Through the court? Because of the speed that you got it?

GENERAL HAYDEN: Yes, because of the speed, because of the procedures, because of the processes and requirements set up in the FISA process, I can say unequivocally that we have used this program in lieu of that and this program has been successful.



Those are pretty compelling policy reasons to find a way to uphold the action.

Moreover, if the statutory construction path is not followed, the court will have to deal with the consitutional question of the President's authority as commander in chief, and whether Congress can impinge on that authority. Those are nasty questions that most courts will go a long way to avoid.


What are the policy arguments the other way? The principal one it seems to me is the argument that this is unbridled power -- that only the executive knows what is being done, and that only the executive decides whether it is reasonable. In this instance , it seems to me the administration has pretty good counterarguments. It informed 13 members of congress. It gave 12 briefings to the pertinent majority and minority ranking members in the intelligence subcommittees. It told the head of the FISA court what was being done. It put down the parameters of what was being done in a written executive order. It allowed operational non-political people, not politicians, to make the hour by hour decisions. Moreover, it appears to have limited the program to what was necessary.

So it seems to me that this program is going to pass muster with a court if it ever comes before one. Only the most rabid partisans are willing to say "But we know the President's motives are bad, and he lies, and he got the A.G. to lie, and a 3 star, and he sucked the ranking house democrat member of the committee into the conspiracy, and he made those other 12 congressmen be quiet by threatening them with jail, and he even made the New York Times falsely hold back parts of its story".

Being a bit sceptical of human nature, and cognizant of a history where power allowed for good ends eventually ends up being used for bad, I would like congress to fairly and theoretically address and legislate how programs like this should be conducted -- require for instance the disclosure to the intelligence committees rather than relying on the president's good sense to do so. I think, knowing what we do now, Congress could put something good together without needing more details of the program.

Nonetheless, on balance, it seems to me that this program makes sense, is legal, and would be found legal by a court. Had it not been distorted by the newspapers and by politicians trying to score points, I suspect the overwhelming majority of the citizens would also agree.
12.23.2005 11:07am
Anderson (mail) (www):
Kaz: There are many here that would have you believe that FISA could trump the Presidents power under Article II to conduct warrantless searches

Savor that, everyone: "the President's power under Article II to conduct warrantless searches."

Imagine reading that out to the Constitutional Convention.

Are we in accord, then, that originalism is dead?

---I'm happy to see the level of discussion rise after I left (good work, Medis &MMK &others).

I am with CharleyCarp that the AUMF is not the Magic Fairy Dust that it is being treated as by some.

But it all comes down to what the SCOTUS thinks it does, which is going to depend not least on who's sitting if/when this issue hits the Court. I can just imagine Alito's opinion for the Court. (For that matter, Breyer might not join Stevens/Souter/Ginsburg, in part.)
12.23.2005 11:15am
Mona (mail):
Assuming it is agreed that Justice Jackson's Categories I,II and III in Youngstown apply to the issues at hand, and further assuming agreement that Bush's NSA surveillance, as with Truman's wish to seize the steel mills, falls under the Category III rubric in which any Article II presidential "inherent authority" is at its lowest (but not extinguished) ebb -- by virtue of flouting a congressional statute -- does not Jackson's language:


We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence.


establish the (merely) plausible wiggle room Bush needs?
12.23.2005 11:57am
John Lederer (mail):
"Savor that, everyone: "the President's power under Article II to conduct warrantless searches."

Imagine reading that out to the Constitutional Convention."

A Congress that contained some of the participants in the Consitutional Convention passed the Alien and Sedition Acts which, inter alia, provided for the arrest, detention and expulsion of aliens based on a warrant from the President.




"And be it further enacted, That it shall be the duty of the marshal of the district ... to execute such order... by causing a removal of such alien out of the territory of the United States; and for such removal the marshal shall have the warrant of the President of the United States, or of the court, judge or justice ordering the same, as the case may be."
12.23.2005 11:59am
Just an Observer:
CharleyCarp,

I think you are probably right in that the AUMF is correctly interpreted as a declaration of war. That is implicitly consistent with Hamdi and explicitly with what AUMF's author, Sen. Biden, has stated (long before the current controversy surfaced).

The obvious problem with that for the Bush administration is that FISA's section 1811 anticipated such a declared state of war, and prescribed in advance what that would mean for the surveillance activities governed by FISA:


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.


The fifteen days lapsed a long time ago.

Notably, the administration's letter failed to address this obvious point.
12.23.2005 12:04pm
Anderson (mail) (www):
Mr. Lederer, I don't think the Alien &Sedition Acts would've gone over too well at the Convention, either. My understanding was that the corrosive infighting of the 1790s was essential to understanding how that particular legislative monstrosity came to light.

I do you the credit, however, of assuming that you don't mean to cite those Acts as a precedent?

But, friends, enough of these sounds: go read the March 23, 2008 (yes, 2008) column by Charles Krauthammer at Brad DeLong's blog:
Is the president constitutionally prohibited from running for a third term? Law professor Alberto Gonzales (one critic calls him the man who "literally wrote the book on today's legal struggles") finds "pretty decent arguments" on both sides, but his own conclusion is that Bush's actions are "probably constitutional." It is true that Congress and the States tried to restrict the ability of presidents to run for a third term with the Twenty-Second amendment but, as Attorney General Harriet Miers wrote, "No president has denied that he retained inherent power to run for a third term and, if elected, to reassume office" if the dire necessity of war demanded it. It is true that no president since Franklin Delano Roosevelt has chosen, so far, to run for a third term. But can it possibly be the case that in these perilous times a president has less power than FDR did? And the unwritten prohibition that Roosevelt broke in deciding to run for a third term because of the necessity of World War II was a stronger law--hallowed by the example of Washington, Jackson, and Lincoln--than a dubious amendment that has never been tested.
Click the link for the jurisprudence of Justice Yoo and other stuff worthy of the Ghost of Christmas Yet to Come.
12.23.2005 12:04pm
ziske68 (mail):
Since we have NO technical details on how this "surveillance" was carried out, I'd like to offer some points for consideration:

-The Administration DID obtain FISA warrants for thousands of wiretaps,
so why not these?

-Is an IP address or webmail account a "known U.S. person"?

-Similarly, is a pre-paid cell phone a "known U.S. person"?

If not, how is it even possible to get a FISA warrant?
And, if unwarrantable, how to legally surveil?
12.23.2005 12:14pm
Apodaca:
I take back all my criticism of the Moschella letter. If anything, it understates the President's case. In just a few minutes of research, I found language from a Supreme Court decision -- inexplicably not cited in the letter -- that lends even more support:

But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier.... But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.
323 U.S. 214, 219-20.
12.23.2005 12:33pm
dk35 (mail):
But even if the Alito court would give Bush a pass on this, Congress can still bring articles of impeachment. So what should the charges look like?
12.23.2005 12:45pm
Anderson (mail) (www):
Apodaca, you're too dry---I thought you were serious there for a minute.
12.23.2005 1:16pm
Just an Observer:
While much of the commentary here has focused on the issues of statutory interpretation, it is important to realize that the administration's claim of statutory authority (under AUMF) is advanced only as a secondary argument. The DOJ letter is constructed as follows:


Under Article 11 of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty. ...

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. ...

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


Of the two forks of the administration's case, the statutory reasoning is easier to attack. They don't even claim that the surveillance was legal within the four corners if FISA, and their claim that AUMF trumps that is weak. (I believe it is wrong.)

But ultimately, Bush argues that Congress can't stop him.

What is troubling is that his constitutional claim is so sweeping, and that it does not seem amenable to resolution by the courts. It is too early to call this matter a consitutional crisis, but it is getting closer.
12.23.2005 1:21pm
Apodaca:
Given that you're a proud member of the irony-based community, Anderson, I'll take that as a compliment.
12.23.2005 1:28pm
Andrew Hyman (mail) (www):

Medis,

You asked whether I believe the 2001 AUMF gives the President the authority to order people to violate any provision in the UCMJ, provided that he believes doing so would be necessary and appropriate to carrying out his task under the 2001 AUMF. No, for several reasons.

First of all, if the President were to attempt to circumvent your hypothetical provision of the UCMJ, then the courts would probably have the final say about whether that UCMJ provision prevents the President from taking “all necessary and appropriate force” against Al Qaeda. Surely, there would be no difficulty in getting a party with standing to bring suit.

Second, I have difficulty perceiving any provision of the UCMJ that arguably deprives the President of his traditional ability to run a war successfully, or that impinges on power to conduct activites that are clearly incidental to the use of force.

You also ask whether I really think that Congress intended the 2001 AUMF to make the UCMJ “advisory.” No, I don’t think Congress intended that or did that, nor do I think Congress made or intended to make FISA “advisory.”

To paraphrase John Marshall, the AUMF allows the Executive Branch to select its means for using force against the enemy. But, those means must be plainly adapted to the end, must not be prohibited by any controlling authority, and must be consistent with, e.g., the letter and spirit of the constitution and of the AUMF and of subsequent valid legislation. Courts can enforce all of these requirements, if a case or controversy arises. And such a case or controvery could easily arise if a disgruntled federal employee involved in the surveillance program goes public or is apprehended.
12.23.2005 1:32pm
Apodaca:
Just an Observer writes:
it is important to realize that the administration's claim of statutory authority (under AUMF) is advanced only as a secondary argument
Of course, the secondary argument pretty much has to be in there, given the weak exposition of the "inherent powers" theory. Even a casual reading turns up

- a problematic invocation of the Prize cases (cited for the proposition "if the Nation is invaded")

- assorted concurrences from the D.C. Circuit

- a grab bag of dicta

- another concurrence, this time from Justice White
The phrase "cobbled together" springs to mind.
12.23.2005 1:41pm
The Original TS (mail):
John Lederer,

While I disagree with many of your thoughts, my congratulations on a thoughtful post. I'll skip over the legality of the President's actions (though I have extremely grave doubts that it is legal) and concentrate on the other aspects of your post.

I think you're correct to separate the legal issue from the policy issue. There are, however, a couple of dimensions you're missing out on.

There is no objectively correct answer to to the proper balance between security and civil liberties. It's a matter of the subjective preferences of the American People. You cannot, therefore, say that some particular security measure is "necessary." To use an extreme example, body cavity searches on all passengers may marginally increase the safety of air travel. But I, for one, do not believe that the increased security justifies that particular imposition on my civil liberties.

The point here is that we need -- and are now having -- a debate on how to properly balance safety and security in America. That is one reason why I find super secret invasions of civil liberties to be extremely troublesome. We need to decide, as a people, how much is too much. The President may have enormous Article II powers but they do not extend to determining the basic contours of American civil society. There was, just yesterday, for example, an article in the NY Times about New York City authorizing a secret program in which the NY City police infiltrated purely domestic peaceful demonstrations. This sort of thing may be acceptable at some level but it is not acceptable that these programs be kept secret. Deciding whether these programs are a warranted intrusion on civil liberties ought to be a matter of public debate even if they are Constitutional.

Second, there is a political issue here that cannot be ignored. You are willing to place great faith in the word of the Adminstration. Some people, even some of us who are conservatives, are less willing. Strong leadership is an excellent thing but only when coupled with a track record of sagacity and success. The Bush administration, unfortunately, has far more cock-ups than successes to its credit. It has been just flat-out wrong about many things, many important things.

Now we live in complex times and mistakes will happen. But the record of the administration makes it impossible to accept "Trust us. We know what we're doing" as dispositive. We have a right to ask questions and debate the answers. More, we have a duty to ask questions and debate the answers.

All this is to say that, from a policy standpoint, it is not at all clear that things like the NSA wiretaps are a good idea, just as it is not at all clear that allowing torture is a good idea. We need to have a public debate about it to determine whether it is a good idea. It is most not definitely something the President can decide for us by executive fiat.
12.23.2005 1:46pm
Anderson (mail) (www):
Just an Observer quotes the DOJ letter:
Under Article 11 of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty.
Aha! Jack John et al. are right and I'm wrong, because the President is relying on Article Eleven---one of the secret articles of the Constitution.

For over 200 years, these secret Articles have been quietly relied on by presidents who would really, really have liked to share them with the citizens governed by them, but of course, doing so would have tipped off the Bad Guys (Mexicans, Confederates, Spaniards, Germans, Commies, terrorists, space aliens ...).

Nevertheless, I am wondering what Articles VIII through X contain ...

(Gotta watch that PDF cut&paste, it's a work in progress.)

In other news, Apodaca reads the DOJ letter &finds:
Even a casual reading turns up

- a problematic invocation of the Prize cases (cited for the proposition "if the Nation is invaded")

- assorted concurrences from the D.C. Circuit

- a grab bag of dicta

- another concurrence, this time from Justice White

The phrase "cobbled together" springs to mind.
You say "cobbled together," I say "sad tissue of lies and half-truths." Let's call the whole thing off!
12.23.2005 1:47pm
Just an Observer:
I recommend Lyle Denniston's recent piece at SCOTUSblog: ANALYSIS: Collison Course on Inherent Power?. It was written before release of the DOJ letter, but is still timely.

My expectation is that Congress will move to reinforce the statutory language, and soon. But if Bush stubbornly rejects any attempt to rein in the NSA program, I still wonder how this can ever be resolved in court.

The catch-22, it seems, is that no one can ever prove he was a victim of the surveillance, so no one can assert standing to bring an action.
12.23.2005 2:01pm
Andrew Hyman (mail) (www):
Just an Observer, why a Catch-22? A case or controvery could easily arise if a disgruntled federal employee involved in the surveillance program goes public or is apprehended.
12.23.2005 2:07pm
Just an Observer:
Anderson,

You are right. PDF cut-and-paste left egg on my face.

Let's stick with Article II, instead of Article 11. :-)
12.23.2005 2:10pm
Just an Observer:
Andrew,

I am intrigued by this. You have mentioned it before as a hypothetical "United States v Leaker" case.

How would a prosecution of such a leaker, and his defense, squarely raise the secondary issue of presidential power? I don't get it.
12.23.2005 2:13pm
CharleyCarp (mail):
Another way it can come up is if someone subjected to surveillance that does not comply with FISA brings an action for damages.

More directly, the FISA court is going to be asking the government whether any of the warrants it issued were based on this program (and based on misleading statements to the FISA court). If the answer is yes, and if criminal prosecutions came from those resulting FISA warrants, then this fact should be made known to the criminal defense lawyers.

I would imagine that Padilla's lawyers are all over this, for example.
12.23.2005 2:16pm
Andrew Hyman (mail) (www):
Medis,

If the AUMF had omitted the last five words, the last sentence becomes: "Nothing in this resolution supercedes any requirement." The words “any requirement” in that truncated sentence are perfectly clear (i.e. no clarification needed), and indeed you’re reading the last sentence of the AUMF as omitting those last five words.

Just an Observer,

If a disgruntled employee is fired or prosecuted, then I'd think that person could raise the issue in court of whether or not he was asked by NSA to do something illegal. The degree of presidential power could decide
the case (i.e. more such power=weaker claim by employee).
12.23.2005 2:25pm
Just an Observer:
CharleyCarp,

I, too, have wondered whether Padilla ever was surveilled under this program. That may or may not be true. In any event, Padilla's criminal case is still over the horizon. The case in the 4th Circuit is still about his erstwhile-and-possibly-still-true status as a non-criminal military prisoner, involving charges unconnected to the criminal case.

Very few targets of such NSA surveillance are likely to come under the purview of the criminal justice system. The government's preferred tactic is to keep them outside. Accused criminals have rights, which presumably would include discovery of such surveillance.

There is a remedy availabe for accused crimnals. What is the remedy for innocent persons caught in the surveillance net?
12.23.2005 2:27pm
Medis:
Andrew,

As an aside, I think the precise issue is that FISA and 18 USC 2511 seem to me to be controlling authority, and I have yet to see a convincing argument that the 2001 AUMF was specifically intended to change that fact. Indeed, the amendment of FISA in the USA-PATRIOT Act implies the opposite.

Anyway, on the UCMJ--it actually governs a great deal of conduct by the military, and places limits on the sorts of orders that can be given. Just to give one example relevant to Hamdi (and Padilla):

"809. ART. 9. IMPOSITION OF RESTRAINT
(a) Arrest is the restraint of a person by an order, not imposed as a punishment for an offense, directing him to remain within certain specified limits. Confinement is the physical restraint of a person.
...
(d) No person may be ordered into arrest or confinement except for probable cause."

So, what if the President ordered people in the military to arrest certain people even if probable cause did not exist? This isn't an idle question, since the exact problem in this case may be that the Administration did not think it had probable cause for some of the surveillance (which would explain why they did not use the emergency procedures in FISA). Given the UCMJ, would these be lawful orders? What if the President thought it was necessary and appropriate to relax the standard for arrest--say, to reasonable suspicion, rather than probable cause? Does the 2001 AUMF authorize him to change the standard in the UCMJ?

To give another example: the UCMJ gives all sorts of procedural rights to people serving in the armed forces. So what if the President suspected that a terrorist group had infiltrated the armed forces? Could he order people in the military to violate the procedures in the UCMJ in the name of tracking down these infiltrators?

I really think FISA is just like the UCMJ in this precise sense. It is fundamentally procedural, in that it allows the President to order domestic surveillance provided that certain procedures are followed. So, I don't think 18 USC 2511 "deprives" the President of power simply by making the procedures in FISA the exclusive means of conducting such surveillance, at least not in any sense that the UCMJ does not already "deprive" the President of power because it lays out procedures the military must follow in applying its force.
12.23.2005 2:46pm
Apodaca:
JaO, the criminal wiretap statute expressly requires that notice of the surveillance be given (after the fact, obviously) to the targets named in the order, and also to other persons insofar as the court determines it to be "in the interest of justice." The notice can be delayed "for good cause," but it must be given eventually. See 18 USC 2518(8)(d).
12.23.2005 2:48pm
The Original TS (mail):
Under Article 11 of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty.

You're correct. The adminstration does make this claim as a general proposition. This was pretty much their position in Padilla.

This argument proves way too much. In effect, this reading makes the President a military dictator who allows Constitutional and statutory provision to exist at sufference so long as they do not interefere with his pursuit of enemies, both foreign and, apparently, domestic.

An enormous fuss has been made about the Executive's article 2 powers as if the military were not under the control of Congress. Here, in my opinion, is how the structure is supposed to work.

Congress passes laws regulating the conduct of the military. None of these laws, in turn, can violate the Constitution, e.g., Congress can't make a law allowing the military to move soldiers into people's houses in peace time.

The President as Commander-in-Chief can give the military any legal order. He cannot, however, make an illegal order. If he does, everyone in the military is legally required to disobey him. For example, the President cannot, in his capacity as Commander-in-Chief, order the military to torture people.

That's it. The President does not have unfettered authority to do anything he likes as Commander-in-Chief. Rather, he has unfettered authority to do anything legal he likes as Commander-in-Chief. The alternative, that the President is a law unto himself, is anathema to the entire Constitutional structure and has far more serious separation-of-powers problems than FISA and The War Powers Act put together.
12.23.2005 2:48pm
Medis:
Andrew,

We have argued over the hypothetical language "Nothing in this resolution supercedes any requirement" before. Personally, I think that is completely unclear, and if I encountered it in any statute (the 2001 AUMF or otherwise), I would have no idea what the drafters intended. So, I think it was obviously reasonable for the drafters to include that additional language if their sole purpose was to make sure that people reading the statute did not interpret it as waiving any requirements of the War Powers Resolution.

Moreover, I really must object to your repeated claim that I am reading the 2001 AUMF in that hypothetical way (as if it said, "Nothing in this resolution supercedes any requirement"). My reading of that sentence is that it is ONLY about the requirements in the War Powers Resolution, and ONLY says that those requirements are not superceded. On my reading, the sentence says NOTHING about any other requirements. It doesn't say some other requirements ARE superceded, it doesn't say some other requirements ARE NOT superceded, it just says flat out nothing about any other requirements.

And I think that is what is fundamentally wrong about this particular argument of yours. That sentence does not have to take an implicit stand on the requirements in FISA (or the UCMJ, or any other federal law) one way or another. Rather, it could be completely neutral with respect to anything other than the requirements of the War Powers Resolution.

So, I thinkthat sentence tell us absolutely nothing about the issue at hand. Which is completely unsurprising--we need not, and should not, expect a sentence specifically about the intersection of the 2001 AUMF and the War Powers Resolution to provide us with a Rosetta Stone applicable to all other intersections between the 2001 AUMF and federal law. And I think you are making a mistake by assuming that sentence does more than what it explicitly purports to do.
12.23.2005 3:02pm
Kazinski:
I think Cass Sunstein has it correct here on th Hugh Hewitt show, if FISA is useful to the President he can go ahead and use it at his convenience, if it impedes the President from fullfilling his Constitutional duties then it is unconstitutional.



HH: So if we assume, and I do, that FISA is Constitutional, if it puts into place an arguably exclusive means of obtaining warrants for surveillance of al Qaeda and their agents in the United States, does the president's avoidance of that necessarily make him a law breaker? Or does it make the FISA ineffective insofar as it would attempt to restrict the president's power?

CS: Yeah. I guess I'd say there are a couple of possibilities. One is that we should interpret FISA conformably with the president's Constitutional authority. So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn't compromise the president's Constitutional power. And that's very reasonable, given the fact that there's an authorization to wage war, and you cannot wage war without engaging in surveillance. If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don't think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11.
12.23.2005 3:23pm
CharleyCarp (mail):
I think Cass Sunstein has it correct here

As Horace put it, "Quandoque bonus dormitat Homerus."

On the other question, we have 50 USC 1810:


An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance . . . shall have a cause of action against any person who committed such violation and shall be entitled to recover— (a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater; (b) punitive damages; and (c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred.


It's just a matter of finding out whether one fits into the category.
12.23.2005 3:38pm
Medis:
I don't think Cass has fully grasped yet the degree to which federal law really does cover this situation already, with "exclusive" provisions.
12.23.2005 3:51pm
subpatre (mail):
The Original TS wrote: "That's it. The President does not have unfettered authority to do anything he likes as Commander-in-Chief. Rather, he has unfettered authority to do anything legal he likes as Commander-in-Chief."

"Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." " --US Constitution, Art II Sect 1

Art II Sect 3 states the President "… shall take Care that the Laws be faithfully executed". Both an instruction and an admonition, it's a far cry from the blind, slavish submission advocated.

As long as the President's action is in defense of the nation --the Executive's primary, most fundamental task-- the Courts have backed them; and judging by Orin's cites, will continue. They understand the government isn't a suicide pact.

The Original TS wrote: "None of these laws, in turn, can violate the Constitution, e.g., Congress can't make a law allowing the military to move soldiers into people's houses in peace time."

Agreed. Nor can these laws violate the Constitution, e.g., Congress can't make a law that interferes with or thwarts the President's ability to defend the nation.
12.23.2005 4:07pm
John Lederer (mail):
I think that a direction from Congress to the President to, for instance, make an armored advance with the 3rd division towards Baghdad would be unconsitutional. Congress has the power to raise armies, to provide for their order (the UCMJ), and to decide whether we go to war or not. It does not have the power to direct how the war is executed. Congress only has the legislative powers specifically granted in the Consitution, whereas the president has the whole of the executive power including that of CinC.(Historians: I seem to vaguely remember Congress, panicked by First Manassas, attempting to require that Lincoln maintain some part of the army to defend Washington -- perhaps someone knows the details?).

Congress does have the power "make Rules for the Government and Regulation of the land and naval Forces"

So which is surveillance of the enemy more like? If that is a power of the president as CinC can FISA stand at all?
12.23.2005 4:11pm
subpatre (mail):
John Lederer wrote: "So which is surveillance of the enemy more like? "

Yes!
Kidding aside, it will depend on the circumstances. If FISA clearly interferes with national defense, it's clearly unconstitutional; if FISA's clearly not interfering with national security it's clearly constitutional.

It's apparent there's fuzzy areas, and if asked the Courts may give a rule for the gray proportions. Based on Congressional statements it's also a good chance (probable) that Congress and the President are in accord; that FISA will be used when feasible, Presidential powers otherwise, and neither will contest.

FISA's decent law most of the time and shouldn't be discarded merely because it doesn't fit some particular circumstances.

"If that is a power of the president as CinC can FISA stand at all?"

No, not if it's totally a power of the President; but that's not the claim by anyone (of standing) at this time.
12.23.2005 4:39pm
Andrew Hyman (mail) (www):
Medis,

I’m getting close to the end of my long, multi-day visit here at Volokh Conspiracy. I have a lot of other stuff to do, but it’s been interesting exchanging ideas with you here (can't say the same for Greedy Clerk in another thread).

You wrote above about your concerns that the President might use the AUMF to supercede parts of the UCMJ. If that happens, the victims could go to court for an independent determination of whether any UCMJ provision truly does prevent the President from using “all necessary and appropriate force” against Al Qaeda. Keep in mind that Abe Lincoln wouldn’t even let HIS victims even go to court (i.e. he suspended the writ of habeas corpus without congressional authority). Assuming that the AUMF does give the President very limited power to supercede the UCMJ "as applied" to certain circumstances, still Congress could amend the AUMF if Congress believes that AUMF is being abused by BOTH of the other branches (though a veto could make that difficult).

I think it’s fair to say that you’re reading the last sentence of the AUMF as if it said this: “Nothing in this resolution supercedes any requirement.” After all, you haven’t suggested any requirement that AUMF did in fact supercede.

Anyway, for Pete’s sake, let’s not get carried away. The wiretaps were from suspected Al Qaeda to people inside the U.S. Let’s have some common sense here. The President would be impeachable for not swiftly monitoring those calls. He would be impeachable for making his surveillance people spend 90% of their time filling out FISA forms instead of surveilling. And he would have been impeachable for subjecting that particular surveillance to a probable cause requirement.
12.23.2005 4:52pm
Just an Observer:
If the President's inherent CinC power always prevails in wartime and thus allows unfettered surveillance activity otherwise regulated by FISA, does that not imply that the 15-day limit imposed by 50 USC 1811 is unconstitutional on its face? And perhaps all other regulations imposed by the FISA?
12.23.2005 5:01pm
Kazinski:
Medis:

I don't think Cass has fully grasped yet the degree to which federal law really does cover this situation already, with "exclusive" provisions.


You wish.
12.23.2005 5:22pm
Andrew Hyman (mail) (www):
Just an Observer:

I've not been making the "inherent CinC power" argument, although it may be a legitimate argument. I've just tried to focus on the statutes. And, no, I don't think the 15-day requirement or any other part of FISA has been repealed. They all still apply with full force to electronic surveillance unrelated to Al Qaeda, for example. Also, regarding surveillance related to Al Qaeda, Bush had a 15-day period aftre passage of the AUMF, during which his surveillance was not subject to any judiciall enforceable "necessary and appropriate" requirement. That's my opinion, to which I'm sticking.
12.23.2005 5:24pm
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 5:45pm
Just an Observer:
Andrew,

I realize that you have not been making the "inherent CinC power" argument. My question was not directed at you, but to the blog in general. It was not just rhetorical, however.

President Bush has been making that argument. And although he and the DOJ have not argued explicitly that the FISA provisions are unconstitutional, they do assert that the president is free to ignore them.

Meanwhile, I would quibble with your statement that "the wiretaps were from suspected Al Qaeda to people inside the U.S." I don't think we know that. We have few details about how the NSA surveillance was carried out.

According to what has been reported, attributed to background sources, the activity may have resembled a large, automated fishing expedition. From the Washington Post story about the FISA court's internal effort to get at the facts:


Bush administration officials believe it is not possible, in a large-scale eavesdropping effort, to provide the kind of evidence the court requires to approve a warrant. Sources knowledgeable about the program said there is no way to secure a FISA warrant when the goal is to listen in on a vast array of communications in the hopes of finding something that sounds suspicious. Attorney General Alberto R. Gonzales said the White House had tried but failed to find a way.

One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.

"For FISA, they had to put down a written justification for the wiretap," said the official. "They couldn't dream one up."


It seems that the FISA law could have been modified when the original Patriot Act was being written, to set a lower standard for court approval of such a large-scale surveillance program.

Gonzales said at his briefing this week that the administration could not get support in Congress for such a proposal. If the support wasn't there in September 2001, what kind of support will there be now?

When the administration couldn't get legislation it favored, it opted unilaterally to ignore Congress. When it couldn't satisfy the requirements of the FISA court, it opted unilaterally to ignore the judiciary.
12.23.2005 5:59pm
Just an Observer:
More informed speculation about how the NSA surveillance program actually works is contained in this story from the Boston Globe: Wiretaps said to sift all overseas contacts

The scary argument by proponents of such systems is that privacy is actually protected because everything is captured and sifted by computers. Think about that, and see how comfortable you are with such a principle.
12.23.2005 6:21pm
Charlie (Colorado) (mail):
Since you deeply respect Harmon, would you please explain how "critical intelligence capabilities" have been damaged by the story's going public?

1) Let them know that there were active intercept programs going on. (No, they don't always think of this: cf. when the fact that we could listen to bin Laden's satphone calls was blown, only then did the satphone calls stop.)

2) Let them know how quickly we could respond to the capture of a cell phone or laptop. They may well have believed that they had days to respond; knowing it isn't true will change their operational security "tradecraft".

3) Let them know they weren't protected by being "US persons". Operational security is always a tradeoff between security and maintaining communications; their calculation of that trade off very probably changed.

4) Let them know that some members of their group may have been compromised by us exploiting capabilities they hadn't accounted for.

5) Let them know that there may be changes in their favor in operational methods. We're actually winning this war pretty dramatically; that kind of improvement in morale can be very important.

Those are the things that occur to me offhand (I am an old intelligence guy.) With knowledge of our OPSEC and their OPSEC procedures that I don't have, I could probably think of more.
12.23.2005 6:25pm
Charlie (Colorado) (mail):
Medis: On "force"--I'm actually not sure what a court might say on this subject. Detaining people captured on a battlefield is certainly an easier case than conducting surveillance far from the battlefield. But, you may be right that force is still broad enough to encompass surveillance.

If you assume the contrary, it would mean that we can kill them, but we can't listen to their phone calls. I'm not sure this sounds very plausible.
12.23.2005 6:28pm
Charlie (Colorado) (mail):
I am intrigued by this. You have mentioned it before as a hypothetical "United States v Leaker" case.

How would a prosecution of such a leaker, and his defense, squarely raise the secondary issue of presidential power? I don't get it.


In fact, since the prosecution would be on the Espionage Act, I'm not sure how you'd even raise the issue in court. On 60 Minutes, maybe.
12.23.2005 6:30pm
Tom Holsinger (mail):
Just An Observer.

The NSA has been doing this for a very long time. Check out Bamford's 1982 book about the NSA, The Puzzle Palace, at Amazon - in particular the reviews. Its surveillance of electronic communications to and from overseas was public long before then - I recall reading about it in either the SF Chronicle or NY Times in the early 1970's.

Last week's NY Times story was most definitely another example of:
"I am shocked, shocked! to find that there is gambling going on in this establishment!"
12.23.2005 6:40pm
Andrew Hyman (mail) (www):
Just an Observer, the text of the Fourth Amendment requires that any warrant be supported by "probable cause." So, it's really hard to imagine how the Bush Administration could agree to judicial oversight of a large-scale surveillance program without triggering a standard of review that would defeat the program. The "probable cause" requirement doesn't mean that it's "probable" a crime is being committed somewhere in the U.S. and therefore the government can barge into every house in the U.S. It's a case-by-case requirement. So, the Bush administration may not be so much concerned about avoiding Congress as avoiding the "probbale cause"requirement of the Fourth Amendment. And, the only way to legally avoid the probable cause requirement may be to avoid warrants.

Judge Posner had a recentcolumn in the Washington Post suggesting a possible way out of this dilemma. He inquired whether it's really a Fourth Amendment issue when some automated search engine scours phone calls for suspicious comments. Posner suggested that the privacy concerns may only arise when a human surveillance person actually finds out about the few suspicious comments that are automatically detected. It's an interesting idea, which may lead to improved legislation.
12.23.2005 6:43pm
Just an Observer:
Andrew,

Thanks. I had read Posner's column and found it deeply troubling.

And, as you point out, there is the pesky problem of the text of the Constitution specifying "probable cause" for warrants. The wiggle room is in the gray area where not-unreasonable searches are legally performed without warrants, such as at the border or at airports. But one area we know that warrantless surveillance is unconstitutional is in a purely domestic setting, even if the executive finds national security as a reason.

The bottom line is that if a standard can be developed to support this NSA program of surveillance, which includes only one party to the communication inside the country, that standard should be articulable. It could be written into legislation and passed like any other law. The Bush administration so far has avoided the attempt, opting for unilateral action.

If, on the other hand, no such standard for the NSA program can be articulated, then the practice may be unconstitutional per se under the 4th Amendment. (I do not necessarily argue that it is.) That could extend, theoretically, to the underlying NSA practice of capturing all international traffic. AFIK, the courts have never had to address that.

One issue in defining such a standard for the NSA program, if no warrant is involved, is what role the FISA courts could have. I am not sure that a general "oversight" role is appropriate for the judicial branch. I thought oversight was a legislative responsibility.

Hence, I wonder what the basis is for the "briefing" the FISA judges are supposed to get soon from the government about the NSA program. It sounds like it may be limited to the question of whether the court has issued warrants based on tainted fruit.
12.23.2005 7:38pm
Medis:
Kaz,

I've been following Sunstein's comments on the Chicago Faculty blog, and I stick by my claim.

Andrew,

I don't think the President would have been impeached if he had needed to devote a lot of resources to comply with FISA procedures. I also think that if he thought that was a wasteful use of resources, the correct remedy would be to go to Congress for a change in either FISA or the DOJ's budget, which I am sure he would have gotten if the only issue was the cumbersome nature of the process.

In general, that is really the fundamental problem here: if the legal structure created in the USA-PATRIOT Act was not working well enough, then the correct (and constitutional) response would be for the President to ask Congress for a change. Indeed, if the President had temporarily authorized violations of the FISA procedures while seeking this change, I think the argument for legality under the 2001 AUMF would be a lot stronger. And even if such a temporary suspension of FISA while he sought Congressional action was in fact illegal, I certainly doubt it would be considered grounds for impeachment. And if Congress had actually refused such a request, maybe we would have an opportunity to reassess the Youngstown framework entirely.

But I really think his apparent decision to bypass the legal structure as established by the USA-PATRIOT Act, without ever seeking a change in Congress, is clearly illegal (in the statutory sense). And I also think that even if he does have an Article II power to violate duly passed laws like the USA-PATRIOT Act (a proposition that I find questionable at best), it is a clear abuse of such power to do so without seeking to resolve the conflict by asking Congress to amend the law.

And yes, I think such abuses of power, even assuming the President has such powers, are potentially impeachable offenses.
12.23.2005 8:05pm
Medis:
Charlie,

Of course, we COULD listen to their phone calls. For one thing, FISA would not apply at all to battlefields in other nations. And even if you are talking about suspected agents of foreign powers in the United States, FISA still allows such surveillance--you just need a warrant (within 72 hours).

Indeed, one would have thought the USA-PATRIOT Act was in part about this very issue. Which is why the claim the 2001 AUMF covered the same ground as the USA-PATRIOT Act but authorized much more is a little hard to swallow.
12.23.2005 8:25pm
Tom Holsinger (mail):
The NSA's interception of electronic communications to and from foreign countries was known during the Vietnam War and the subject of litigation then. Here is the cite to a 1978 D.C. Circuit Court opinion from a district court action filed in 1975 concerning its interception of the citizen plaintiffs' communications originating in the U.S.:

Halkin v. Helms, 598 F.2d 1 (D.C. Cir. 1978).

The appeal concerned the "state secrets" immunity to discovery.
12.23.2005 8:34pm
Medis:
Tom,

And of course FISA was passed in 1978 at least in part because of the facts underlying such cases.
12.23.2005 10:02pm
Andrew Hyman (mail) (www):
Medis, I'll ask you point blank. Can you please name any requirement of law that was superceded by the AUMF?

If not, then I believe you are treating the last five words of the AUMF as if they didn't exist.
12.23.2005 10:12pm
Medis:
I'm sorry, Andrew, but that is simply a gross mischaracterization of my reading of (b)(2). On my reading of (b)(2), that sentence is completely neutral with respect to any other requirements of federal law. So, on the issue of whether the 2001 AUMF supercedes zero, one, or one thousand other requirements under federal law, that sentence is perfectly neutral. In other words, it simply does not provide an answer to the question: how many requirements are superceded by the 2001 AUMF?

But on your hypothetical reading (which is NOT my reading), there WOULD be an answer to that question--the answer would be zero. And once again, I'm saying that (b)(2) provides no answer to this question, not that (b)(2) sets the answer at zero.

Now, I don't mind if you disagree with my reading (that (b)(2) saves the requirements of the War Powers Resolution from the operation of the 2001 AUMF, and is neutral with respect the implications of the 2001 AUMF for all other requirements). But I really must insist that you stop mischaracterizing my reading (by claiming that I think that (b)(2) saves all requirements arising under federal law from the operation of the 2001 AUMF).
12.23.2005 10:27pm
Andrew Hyman (mail) (www):
Medis,

Do you think that the AUMF supercedes any other legal requirements, or not? That seems like a fairly straightforward question.
12.23.2005 10:33pm
Medis:
Andrew,

I honestly do not know the answer to that question. In light of the other considerations we have discussed, I don't think it supercedes FISA as amended by the USA-PATRIOT Act. But I don't have the encyclopedic grasp of US law that I would need to answer your question. In other words, as far as I know, the 2001 AUMF may have superceded some legal requirement, or it may not have.
12.23.2005 10:40pm
Andrew Hyman (mail) (www):
Medis,

If Congress hadn't added the last five words of the AUMF, then it would have been pretty clear that the AUMF did not supercede any other legal requirement. Right?
12.23.2005 10:59pm
Medis:
Andrew,

Actually, I'm not sure how clear it would have been--as previously noted, personally, I would not really know what to make of such a provision.

But, for the sake of argument, I am willing to suppose that without the limitation, that provision would be equivalent to something like "This Act supercedes no requirements arising under federal law."

And in that case, of course, I would know the answer to your prior question. Which is exactly why your hypothetical reading and my actual reading are different.
12.23.2005 11:05pm
Tom Holsinger (mail):
Medis,

Many people here are still as shocked! as Captain Renault to discover something blindingly obvious which has been going on since 1967, the subject of numerous federal cases as far back as 1972-75, been written about in the press for 33 years, and has been the subject of, or a plot device in, innumerable television news stories, generally horrible fiction, movies and television shows.

While many Americans view anything that happened before they were born as ancient history and of no possible effect on their lives, the breathless indignation on this legal board merits constant reminders that last week's NY Times story was phony news.
12.23.2005 11:07pm
subpatre (mail):
Medis wrote "FISA was passed in 1978 at least in part because of the facts underlying such cases."

Jabara v. Webster 691 F.2d 272 was 1982. Abdeen M. Jabara, a US person, alleged [emphasis added]
....that Jabara's fourth amendment rights were violated as a result of NSA's interception of his "communications by means of warrantless electronic surveillance and/or disclosed summaries of these interceptions to the Federal Bureau of Investigation."
The court held [emphasis added]
The NSA intelligence gathering operation is described sufficiently for present purposes in Halkin...
Only foreign communications are acquired, that is, communications having at least one foreign terminal.
First, the simple fact remains that the NSA lawfully acquired Jabara's messages, and these are all that it delivered to the FBI.
Since, however, we determine herein that Jabara's fourth amendment rights were not violated when the summaries of his overseas telegraphic messages were furnished to the FBI irrespective of whether there was reasonable cause to believe that he was a foreign agent and whether there is a foreign agent exception to the warrant requirement....
We do not believe that an expectation that information lawfully in the possession of a government agency will not be disseminated, without a warrant, to another government agency is an expectation that society is prepared to recognize as reasonable. In this connection, we believe that it is irrelevant that Jabara did not know that the NSA had intercepted his messages. To hold otherwise would in many instances require, for fourth amendment purposes, a succession of warrants as information, lawfully acquired, is passed from one agency to another.
We conclude, therefore, that Jabara's fourth amendment rights were not violated when the FBI obtained summaries of his overseas telegraphic communications from NSA and that the district court erred in granting summary judgment to Jabara....
Note that the NYT article states "...monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years..." and compare to the "having at least one foreign terminal" criteria in Jabara.
12.23.2005 11:08pm
Medis:
Tom,

You are overlooking a rather crucial historical development: the actual passage of FISA.
12.23.2005 11:12pm
subpatre (mail):
My previous post is of excerpts, each block quote separated by a blank line. The decision doesn't flow as shown. I should have used more "...." marks.
12.23.2005 11:13pm
Medis:
subpatre,

Do you actually have a link to the decision?
12.23.2005 11:21pm
subpatre (mail):
Re: 691 F.2d 272, Jabara v. Webster, (C.A.6 (Mich.) 1982)

The 1982 NYT article is here; the decision is (cached) here.
12.23.2005 11:39pm
Medis:
subpatre,

Thank you very much ... I hadn't been able to find it anywhere myself.

So, it turns out that the NSA surveillance in question occurred prior to November 1, 1971. And Jabara also did not contend that the NSA had violated his Fourth Amendment rights when doing the surveillance, but rather that his Fourth Amendment rights were violated when the FBI obtained the information from the NSA without a warrant.

So, that case addresses neither whether the current surveillance is legal under FISA nor whether the Fourth Amendment is violated by the current surveillance.
12.23.2005 11:54pm
Just an Observer:
subparte,

See Tom Holsinger's post above in this thread, which appears to put the Jabara v. Webster case in context.

According to Tom, the 6th Circuit ruling did not hold that the NSA surveillance itself was legal. It did not address this question because the parties did not raise it. Rather, the opinion's reasoning simply assumed it was legal. The court's holding was limited to the question before it: whether the NSA could pass on the information to the FBI.

Check your ellipses in the quoted material. I don't have access to the case myself right now. Tom apparently does.
12.23.2005 11:55pm
Just an Observer:
subpare,

From the case you linked to:

"Jabara, however, does not even contend on this appeal that the interception by the NSA violated his fourth amendment rights; we may therefore take as a given that the information was legally in the hands of the NSA."
12.23.2005 11:58pm
Medis:
JaO,

And as I noted, the surveillance occurred prior to 11/1/71, so FISA was not yet law:

"On November 1, 1971, the FBI, without a warrant, requested the NSA to supply it with the contents of Jabara's telegraphic communications sent overseas, and the NSA complied by furnishing the FBI with summaries of six of such communications."
12.24.2005 12:02am
subpatre (mail):
Medis is correct, the surveillance occurred pre-FISA. Just an Observer is wrong however, or at least his understanding based on Holsinger's is wrong.

It's true the court stated
Jabara, however, does not even contend on this appeal that the interception by the NSA violated his fourth amendment rights; we may therefore take as a given that the information was legally in the hands of the NSA.
Yet the Court goes ahead and does it (opines on the warrantless surveillance) anyway. They had to do this in order to establish a warranted chain or a warrantless chain:
First, the simple fact remains that the NSA lawfully acquired Jabara's messages, and these are all that it delivered to the FBI.
must also be read as
First, the simple fact remains that the NSA lawfully acquired Jabara's messages, and these are all that it delivered to the FBI.
12.24.2005 12:24am
Medis:
subpatre,

Jabara waived any arguments about the legality of the actual surveillance, so the court assumed it was legal. I don't see how that becomes the court "opining" on the legality of the surveillance.
12.24.2005 12:35am
Just an Observer:
subparte,

I think it must be read as what is obviously is: a dicta. As such, it has little or no precedential value, and it certainly is misleading to portray such a dicta out of context as a holding of the court.
12.24.2005 12:39am
Tom Holsinger (mail):
Medis,

Most of the comments on this subject, including those by the law professors here, have missed the blindingly obvious.

The NSA program at issue - warrantless intercepts of electronic communications to and from from foreign countries, plus computerized "key-word" searches &traffic analysis of them followed eventually by human surveillance of the most intereresting ones - has existed at least since 1967.

It has been publically known since close to its inception and has resulted in more than a few legal challenges to its constitutionality. Congress regulated it in 1978 with FISA. FISA authorizes Presidents to continue this program provided certain procedures are followed, notably that the Attorney General must get involved. Every President since, starting with Carter, has used this authority and complied with that procedure.

This too has resulted in more than a few legal challenges to this NSA program, including Constitutional attack, all of which have been rejected.

The United States was attacked at home on September 11, 2001. Several thousand American civilians died. Congress immediately gave the President full authorization to use force under the War Powers Act. President Bush then issued an Executive Order to Attorney General Ashcroft authorizing him to direct warrantless intercepts per this NSA program.

Yet suddenly a program which has existed continuously since 1967, and whose continuance was authorized by Congress under FISA (given compliance with certain procedures, etc.), and which every President since has complied with,

magically becomes illegal, unconstitutional, immoral and fattening because President Bush continued it AFTER the U.S. was attacked and AFTER Congress issued an AUMF.

What planet are you guys living on?

This is all partisan tripe by the terminally clueless.
12.24.2005 2:25am
Apodaca:
Tom Holsinger writes:
This is all partisan tripe by the terminally clueless.
Logician, heal thyself.
12.24.2005 9:12am
Kazinski:
After several days of following this debate it is apparent how speculative and tenuous the legal case against the president is. For a while there after reading Orin's original post I thought there might actually be something there. But with that worry past there is nothing but positives in this whole debate for Bush. It does help Bush among those who might have believed that Bush "dropped the ball" by not being more aggessive in Afghanistan (all 10 of them), it helps tremendously in shoring up the base. The one thing that could have hurt the Republican's in the 2006 congessional elections would have conservatives staying home, not with many on the left thinking somehow they can get an impeachement out of this, there is no way the conservative base is going to sit this one out.
12.24.2005 2:32pm
Neal Lang (mail):
As for removing cabinet officers, a plausible original-meaning argument could be made that the Constitution doesn't determine anything about it one way or the other. I don't think this argument is right (i.e. I think Myers was rightly decided), but it's not silly or incoherent.

So did President Andrew Johnson, first when he vetoed the bill forcing the Congress to "over-ride", and then when he defended himself in Congress against the impeachment that was based his violation of the Tenure of Office Act by firing his Secretary of War.
Article II. Section 2.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting commissions which shall expire at the End of their next Session.
12.24.2005 4:44pm
Neal Lang (mail):
Given the President's obligation to faithfully uphold the laws, it's hard to believe that the DOJ could legitimately take that position.

Actually, the President "swears" to "faithfully execute the Office of President of the United States", while endeavoring to "preserve, protect and defend the Constitution of the United States", to wit:
Article II. Section 1.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: -- "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

A good case could be made that "faithfully upholding" FISA is a violation of the President's Oath to "preserve, protect and defend the Constitution of the United States".
12.24.2005 5:01pm
Neal Lang (mail):
You are overlooking a rather crucial historical development: the actual passage of FISA.

So an act of Congress makes an activity that didn't violate someones 4th Amendment rights before its passage, suddenly a violation afterwards? Such a concept is itself is unconstitutional, to wit:
Article. V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

I had thought Congress by simply passing a law could not change the Constitution. Apparently I was mistaken.
12.24.2005 5:18pm
Charlie (Colorado) (mail):
Only foreign communications are acquired, that is, communications having at least one foreign terminal.

This issue of definition is a very important one, I think. Along with the quesiton of whether an al Qaeda contact is an "agent of a foreign power" under 50 USC 1801(b), there's also, I think, the question of whether communications with either endpoint in foreign territory is "foreign communications."

There are a lot of precedents already cited by Sunstein and others that the interception of foreign communications for intelligence purposes is permissible under Article II, and repeated assertions of this interpretation by executive order, starting at least with Carter. This is also apparently what was targeted in the NSA intercepts --- although they admit some calls with both endpoints in the US were caught by mistake (it's not always obvious where an endpoint of a modern call might be.)

A lot of the high dudgeon has been about "domestic survelliance" but noting that "domestic" implies "not foreign", it would seem that this is ... um, exaggerated ... if this definition of "foreign communications" is true.
12.24.2005 10:06pm
Tom Holsinger (mail):
Charlie,

It is starting to look like the NSA did intentional warrantless interceptions and examinations of purely domestic communications too, at the orders of persons the President had delegated authority to. This is way, way, outside the foreign communications exception to FISA.

There might be some foreign national exception to the warrant requirement here, but I doubt that covers all of them.

Phony howls of mendacious outrage from the usual suspects are one thing. I shot those down above.

There may be some real wrong-doing here.
12.25.2005 1:45am
Neal Lang (mail):
It is starting to look like the NSA did intentional warrantless interceptions and examinations of purely domestic communications too, at the orders of persons the President had delegated authority to.

Doesn't domestic communications between "agents of a foreign power" plotting "grave attacks or sabotage" against the United States really constitute "foreign intelligence"?
The code defines "foreign intelligence information" means information necessary to protect the United States against actual or potential grave attack, sabotage or international terrorism.

If President Clinton can issue an Executive Order permitting warrantless physical searches of domestic dwellings of American citizens.
The purpose and general outline of the program is not subject to serious dispute. No one claims that the NSA is intercepting domestic communications that begin and end in the United States, even if they do involve potential agents of a hostile foreign power. Only international communications are targeted. The President has stated that “the government must have information that establishes a clear link to [al Qaeda or other] terrorist networks” before interceptions are made. The President also has said that the program is reviewed approximately every 45 days by senior legal officials in several executive agencies and the White House.
12.25.2005 10:51am
MMK (mail):
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." " --US Constitution, Art II Sect 1

Art II Sect 3 states the President "… shall take Care that the Laws be faithfully executed". Both an instruction and an admonition, it's a far cry from the blind, slavish submission advocated.

As long as the President's action is in defense of the nation --the Executive's primary, most fundamental task-- the Courts have backed them; and judging by Orin's cites, will continue. They understand the government isn't a suicide pact.


It is really sad that so many obvious intelligent (and from the nature of the postings legally trained) individuals have such a limited grasp of a true understanding of the Constitution.

The above quote seems to suggest that a President's oath to fulfill the duites of his office supercede any obligation he may have (after all he is only committed to doing "to the best of his ability) to safeguarding the entire Constitution itself, the very document that gives rise to the goverment over which he sits as the chief executive. If just reading this does not cause to pause and fear how far people are willing to go to defend a person (or to be charitable, an institution) then I don't know what will. Our country comes first not our devotion to party or political personalities. In reading much of the posts here there are times I could not help but feel that this misguided devotion was pushing the debate.

Similarly, messages from Kazinski (I suppose a play on the noted jurist Kozinski's name), Jack John, Tom Holsinger, and others that are so willing to either read Article II to give the President plenary (meaning without limit) powers during times of war or who seem to be non-plussed by the wiretaps themselves, should cause us all concern. No man (and for purposes of this post no branch of government) is above the law. The rejoinder, of course, is that how can the President be violating the law if all he is doing is fulfilling his obligations under Article II? This argument supposes that if a power is conferred under the Constitution, then that power is not checked or balanced by other provisions in the Constitution. Any lawyer can tell you this is simply not so. So, for example, say a President believes he can, and in fact, does start conducting warrantless electonric surveillance of American citizens as part of his Commander-in-Chief duties. Does this mean that ends the discussion. No!!! The courts under Article III when presented with a real-life case and controversy can adjudge the constitutional validity of the President's assertion of power. The Congress under Article I can conduct oversight of the President's assertion of power, begin impeachment proceedings if they believe it to exceed his powers (not that I believe there is a snow ball's chance of that happening), etc.,. My point is just because you can find a power under Article II does not mean that a President's power is not without limits with respect to that power.

Finally, many times through this post commentators have suggested that nothing is wrong with the President's assertion of power in this instance because he was only going after people linked to terrorists and/or Al Quidea. This is not an argument, this is an assumption. We do not know who was electronically surveilled nor do we know the circumstances that triggered such surveillence. While one would hope that there was something there to prompt such surveillence in the first place, the fact that the administration would not even seek to obtain a FISA warrant with its water-downed standard for probable cause suggests that the "there" there was not that much. Nor do we know how many people who were surveilled turned out to be truly linked to terrorists. I strongly suspect that after some surveillence some of people were found to have no link whatsoever to terrorists. While many on this post it would appear would have no problem with another citizen having to endure having their phone calls, e-mails, etc. (with all the personal info that come with such communciation broadcast to government agents), montiored for a period of time to clear them of having any connection with terrorists, I suspect that such a carefree attitude is perhaps driven by the commentator's belief that they would never have been so subjected to such surveillence, so why bother if others are so "inconvienced." Let us not forget that while one never think of themselves being surveilled (after all, I know I'm no terrorist), the government does not know that before the fact and may either through incompetence, inadvertence, or mistake only come to that realization after having electronically surveilled such an innocent person.
12.27.2005 1:19am
corngrower:
You people!

So much self masterbatory delight! The President gets to do as he pleases. Congress can, by a voice vote stop it in a New York second....If Congress had the guts. Not a single example presented is outside the perview of Congress. So??? how many on this board have asked their Elected Representatives to bring a bill up to the floor to get a vote? ZERO not a one. This is a political debate. Not a legal one. I got proof.

Not a single person has brought a case to court. Why? A court would refuse to hear it. (shhh, no elected member of congress is willing to force his/her peers into a position of an actual vote,thus defining a real position an a topic)
12.30.2005 9:10am
MMK (mail):
Not a single person has brought a case to court. Why? A court would refuse to hear it.

This is simply not true. A court's ability to hear a case depends on whether a live case and controversy before it. That means a party must have standing to be in court to obtain a ruling re: the President's wiretaps. The court would have to hear the legality of such a wiretap if, for instance, a criminal defendant can make a case that some of the evidence being used to prosecute him was obtained through these warrantless wiretaps and he/she seeks to have that evidence surpressed.

As for whether this is a political versus legal debate as is most things with respect to the law both are true. Nor do I think that one has to go call their elected representative before being able to voice their opinion and concerns regarding the topics of the day. Kudos to those that go the extra step and petition their reps, but I don't believe just because you haven't that you should keep your opinion to yourself.
12.31.2005 3:20am
MMK (mail):
THE DOJs stautory argument is not tenable. Here is why I believe so. The DOJ relies on the ATUF as superceding FISA's requirements. What statutory authority do they cite to for this proposition? The DOJ points to a section in FISA that says it is a crime to perform a warrantless wiretap on US citizens "except as authorized by statute." DOJ then points to the Hamdi case as an example where the Supremes said that ATUF had indeed superceded a statute. In Hamdi the statute in question prohibited the detention without court process of US citizens except "by Act of Congress." The Supremes held the ATUF was such an Act of Congress.

Here is the problem with the statutory argument -- FISA says its requirements can only be superceded by "statute." Tell me if I'm missing something but ATUF is not a statute. It was a joint resolution of Congress. It was not codified into the United States Code (the place one would normally find said "statutes") and interestingly enough it was not signed into law by the President. It didn't need to because again it was only a joint resolution of Congress.

Some may say that such a result does not square with Hamdi but that is not true. In Hamdi the anti-detention statute in question provided an exception for "Act of Congress." A joint resolution of Congress like the ATUF satifies the bill as an Act of Congress. Congress after all acted by passing a joint resolution demonstrating its sense on the matter. The same requirements however were not met for FISA's exception. FISA says only other statutes can supercede its requirements. Perhaps Congress felt that to supercede the wiretap restricitions required a more deliberative effort on the part of Congress than the anti-detention statute in Hamdi required. At least that would be a sound policy reason for the difference in language. Nonetheless because ATUF does not satify FISA's statute requirement it could not have acted to supercede FISA's requirements.
1.3.2006 12:45am
MMK (mail):
THE DOJs stautory argument is not tenable. Here is why I believe so. The DOJ relies on the ATUF as superceding FISA's requirements. What statutory authority do they cite to for this proposition? The DOJ points to a section in FISA that says it is a crime to perform a warrantless wiretap on US citizens "except as authorized by statute." DOJ then points to the Hamdi case as an example where the Supremes said that ATUF had indeed superceded a statute. In Hamdi the statute in question prohibited the detention without court process of US citizens except "by Act of Congress." The Supremes held the ATUF was such an Act of Congress.

Here is the problem with the statutory argument -- FISA says its requirements can only be superceded by "statute." Tell me if I'm missing something but ATUF is not a statute. It was a joint resolution of Congress. It was not codified into the United States Code (the place one would normally find said "statutes") and interestingly enough it was not signed into law by the President. It didn't need to because again it was only a joint resolution of Congress.

Some may say that such a result does not square with Hamdi but that is not true. In Hamdi the anti-detention statute in question provided an exception for "Act of Congress." A joint resolution of Congress like the ATUF satifies the bill as an Act of Congress. Congress after all acted by passing a joint resolution demonstrating its sense on the matter. The same requirements however were not met for FISA's exception. FISA says only other statutes can supercede its requirements. Perhaps Congress felt that to supercede the wiretap restricitions required a more deliberative effort on the part of Congress than the anti-detention statute in Hamdi required. At least that would be a sound policy reason for the difference in language. Nonetheless because ATUF does not satify FISA's statute requirement it could not have acted to supercede FISA's requirements.
1.3.2006 12:46am