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No Monarchy Here:
I read Daily Kos only occasionally, so I just came across the post "A Little Bit of Monarchy" by Armando on the NSA surveillance program that includes some criticism of my long post last week. Armando's post is a week old, but the Daily Kos gets a jazillion readers, so I thought I would respond and explain Armando's misunderstanding. (Plus, I believe Charles Krauthammer may have had the same misunderstanding, so maybe it's a widespread misconception.)

  Armando writes (with excerpts of my posts in italics):
  Some conservatives, it appears, favor a little bit of monarchical powers for the President. Orin Kerr, a respected conservative lawyer who blogs at Volokh Conspiracy, appears to be one of those:
Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act.
  Say what? It is Constitutional for the President of the United States to violate a duly enacted federal law? How does that work exactly? Is FISA unconstitutional? Does the President have plenary powers when acting as Commander in Chief? Well, contradictorily, not according to Kerr:
I have been unable to find any caselaw in support of this argument [that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power] Further, the argument has no support from the cases cited in the government's brief. . . . .
  So how does this work Mr. Kerr? Congress has passed a law that is consistent with the Constitution and the President can disregard it? That's a Constitutional action by the President? Even though the violation of FISA is a crime? Come again? Ahhh, a little bit of monarchy I suppose.
  Nope, no monarchy, and no contradiction. Let me explain a bit more. The legality of the NSA surveillance program raises two different questions: 1) Does the NSA's surveillance program violate a provision of the Constitution?, and 2) Does the NSA's surveillance program violate any constitutionalily valid statutes? The two are quite separate issues: Whether executive branch action violates a statute is different from whether it violates the Constitution. See Dalton v. Specter. (Hat tip: Madisonian)

  In my post, I argued that the monitoring probably didn't violate the Constitution (and in particular, the Fourth Amendment), but that it probably did violate FISA. This doesn't mean that the monitoring was legal; it only means that of the two possible grounds that it could be illegal, I think it was probably illegal on one ground but not the other ground.

  The distinction is a little tricky in this context because some are arguing that Article II renders FISA unconstitutional in some ways. But when I said that the monitoring was probably constitutional, I only meant that the monitoring probably didn't violate the Fourth Amendment; I didn't mean that the Constitution invalidates a statute that makes the monitoring illegal. As Armando notes, I rejected that argument. (And I'm glad to see that the Administration isn't relying on the Article II argument any more, at least if its letter to the Hill last week is an indication. Also, while we're on the topic, check out Joe Onek's very interesting response to the DOJ letter at ACSBlog.)

  Finally, I've been meaning to post another write-up on the legality of the NSA program now that we seem to have more facts about what the program actually entailed. My quick skim of the Times' latest piece from Saturday suggests that the legal issues may be different from what I thought they were — or at least, that there is another set of legal issues to work through in addition to the ones I wrote about last week. I'm stuck fighting my way through enjoying reading a set of exams right now, but I hope to write another analysis sometime this week.

  UPDATE: Thanks to Armando for posting an update.
Mahan Atma (mail):
The words of Justice Jackson in Youngstown Sheet and Tube seem apropos:

[quote]"I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture.

[...]

The essence of our free Government is "leave to live by no man's leave, underneath the law" - to be governed by those impersonal forces which we call law. Our Government is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up"[/quote]

Powerful stuff, ain't it?
12.27.2005 2:49am
moonfall:
I say this not to be insulting in any way, but Prof. Kerr - if you are going to write on these types of subjects in the future, you need to provide a clear and definitive summary paragraph before and after your analysis. Unfortunately, people on both the left and right are apparently idiots - neither Armando on dkos nor apparently anyone on redstate is capable of understanding your analysis (including the editor who is a law student!) - on redstate, they think you said the program is completely legal.

Quite frankly, I wish you had time to get an account in both places and state, in clear language that no one can misinterpret, your view of the situation.
12.27.2005 6:28am
william (mail):
Hi Orin,

I think the two-sentence summary you're looking for is: If there was a law that allowed the current NSA program, that law would (probably) be constitutional. But, given the current law, the current program is (probably) illegal.
12.27.2005 6:37am
ruidh (www):
Under what original interpretation of the Constitution is this program in any way constitutional?
12.27.2005 6:54am
LINO_watcher (mail) (www):
In my amateur, hack opinion they have probably violated more than the FISA. Posse comitatus forbids the use or "detailing" of military personnel for domestic law enforcement operations. (I believe there are some exceptions for anti-narcotics operations, but no one has mentioned drugs.) As I understand it the NSA has a significant number of military personnel "detailed" to them. I believe the upper echelon (pun intended) of management is composed of admirals, generals, colonels, etc. in addition to scads of other officers and enlisted personnel in the lower echelons. (there's that word again)

I mean its not like the torture that other elements of the government are likely involved in - which violate the Constitution (if US Citizens are involved), the Convention Against Torture, the Geneva Convention, the Army field manual and probably the other armed service manuals, the Nuremberg Code, etc. (and if they're involved in messing with peoples' genitals it involves the "sexual violence" clauses of the genocide laws) - but its pretty naughty.
12.27.2005 7:12am
Splunge (mail):
Er, doesn't a lot of this analysis turn on the fact of whether the data were gathered for the purpose of domestic law enforcement (e.g. prosecuting an American for terrorism or abetting terrorism) or for the purpose of collecting foreign intelligence (e.g. finding out whether Abdul in Islamabad is plotting an attack of some kind)?

I mean, so far as I know, the government does not need to establish probable cause that both parties to a conversation are up to no good before it can get a warrant to monitor the conversation. It's enough that one of them is being naughty.

Now, if an international conversation is going on between a foreigner and a US citizen, and the government has reason to suspect the foreigner is up to no good, does the government also need reason to suspect the American is up to no good, too, before it can monitor the conversation? The answer is clearly yes if the government wants to prosecute the American. But I think the answer is equally clearly no if the government's purpose is national security operations against the foreigner.
12.27.2005 7:32am
Cornellian (mail):
Perhaps it would have been better to explain that you meant "constitutional" in the legally precise way of "not violating any constitutional provisions" and not in the inaccurate sense common among laypeople of "overall legal." Ergo:

1) Program doesn't violate any constitutional provisions, ignoring for the moment the existence of relevant statutes;
2) FISA is consistent with the constitution;
3) Program violates FISA;
4) Ergo program is illegal, but only because of #3, above.
12.27.2005 8:44am
nk (mail) (www):
I believe that most of the commentaries I have read on this issue have focused on the astractions of the law and have not sufficiently emphasized the offensive as well as the defensive uses of today's communicaton and transportation technology. Watchtowers manned by keen-eyed and sharp-eared sentries are no longer sufficient to guard against enemy attack eswpecially not a terrorist attack. I think the reason there are flaws in the various legal theories about the President's action, from both sides, is that the laws we are looking at are outdated, underdeveloped and incomplete.
12.27.2005 8:47am
jrose:
Splunge,

According to FISA - even if the American is not targeted, the surveillance requires a FISA warrant if the interception occurs in the USA [see Definition (f)(2)]
12.27.2005 9:22am
CharleyCarp (mail):
Surely, nk, the answer then is amendment of FISA. Rather than pretending that the law is other than it is. Or, more dangerous, pretending that AUMF + Hamdi equals any more than the application of 50 USC 1811.
12.27.2005 9:25am
-k:
Orin:

No offense, your argument has always been exceptionally weak &Armando gutted it further. In United States v. United States District Court, 407 US 297 (1972), the Court explicitly rejected your argument holding it to be the arguments of monarchs not presidents.

The statute which Nixon asserted there contained the followig language:
Nothing contained [in the Act[ shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, [407 U.S. 297, 303] or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power."

As the Court ultimately held in US v USDCt, and the reason I think your argument is so freakin ludicrous, is that this type of assertion is one of the reasons we fought the revolution against England
The Government argues that the special circumstances applicable to domestic security surveillances necessitate a further exception to the warrant requirement. It is urged that the requirement of prior judicial review would obstruct the President in the discharge of his constitutional duty to protect domestic security. We are told further that these surveillances are directed primarily to the collecting and maintaining of intelligence with respect to subversive forces, and are not an attempt to gather evidence for specific criminal prosecutions. It is said that this type of surveillance should not be subject to traditional warrant requirements which were established to govern investigation of criminal activity, not ongoing intelligence gathering. Brief for United States 15-16, 23-24; Reply Brief for United States 2-3.

The Government further insists that courts "as a practical matter would have neither the knowledge nor the techniques necessary to determine whether there was probable cause to believe that surveillance was necessary to protect national security." These security problems, the Government contends, involve "a large number of complex and subtle factors" beyond the competence of courts to evaluate. Reply Brief for United States 4.

As a final reason for exemption from a warrant requirement, the Government believes that disclosure to a magistrate of all or even a significant portion of the information involved in domestic security surveillances "would create serious potential dangers to the national security and to the lives of informants and agents. . . . Secrecy is the essential ingredient in intelligence gathering; requiring prior judicial authorization would create a greater `danger of leaks . . ., because in addition to the judge, you have the clerk, the stenographer and some other officer like a law assistant or bailiff who may be apprised of the nature' of the surveillance." Brief for United States 24-25.

These contentions in behalf of a complete exemption from the warrant requirement, when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration. We certainly do not reject them lightly, especially at a time of worldwide ferment and when civil disorders in this country are more prevalent than in the less turbulent periods of our history. There is, no doubt, pragmatic force to the Government's position.

But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.

We cannot accept the Government's argument that internal security matters are too subtle and complex for judicial evaluation. Courts regularly deal with the most difficult issues of our society. There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of "ordinary crime." If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.

Nor do we believe prior judicial approval will fracture the secrecy essential to official intelligence gathering. The investigation of criminal activity has long involved imparting sensitive information to judicial officers who have respected the confidentialities involved. Judges may be counted upon to be especially conscious of security requirements in national security cases. Title III of the Omnibus Crime Control and Safe Streets Act already has imposed this responsibility on the judiciary in connection with such crimes as espionage, sabotage, and treason, 2516 (1) (a) and (c), each of which may involve domestic as well as foreign security threats. Moreover, a warrant application involves no public or adversary proceedings: it is an ex parte request before a magistrate or judge. Whatever security dangers clerical and secretarial personnel may pose can be minimized by proper administrative measures, possibly to the point of allowing the Government itself to provide the necessary clerical assistance.

Thus, we conclude that the Government's concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government's domestic surveillance powers will be impaired to any significant degree. A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review. By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur.
12.27.2005 9:25am
JamesB:
nk, that may be. However my biggest complaint is that the President did not seek to change the relevent laws. Remember he has had over 4 years and hasn't even made the attempt. Instead he has chosen to ignore and bypass them. That speaks of a great arrogance. I wonder what other laws has he found inconvenient and bypassed.
12.27.2005 9:26am
JR (mail) (www):
This isn't relevant to the discussion, but I noticed that Armando referred to Professor Kerr as "a respected conservative lawyer." I don't read Kos or Armando, but, assuming Armando is a left-wing commentator, referring to Orin as a "lawyer" instead of a "professor" is a clever rhetorical technique because "lawyer" has a negative connotation and "professor" has a positive one. However, "professor" is the more correct label because Mr. Kerr is primarily a professor.
12.27.2005 9:42am
nk (mail) (www):
Charley Carp and JamesB: I can only analogize to generals who are prepared to fight the previous war. Besides amending FISA, there is also a role for the Courts as regards the Fourth Amendment and maybe even the repective war powers of Congress and the President in Articles I and II and the tension between them, although there is a political solution possible in the latter instance.
12.27.2005 9:58am
Ron Wright (mail):
No sense in reinventing the wheel.

Splunge nice to see you in this thread injecting a degree of common sense.

I would invite readers to read the previous thread that's been going on here all weekend. A lot of the finer points of devining the atomic nucleus have already been covered (nit picking).

If nothing else read the words of a great American President, Abraham Lincoln as to common sense in time of war.

*****

"What would Lincoln do? What Lincoln did."

HT Poweline

Thoughts re what a great US President did.

December 26, 2005
What Kuttner could learn from Lincoln

[...]

Here

*****

No sense in reinventing the wheel.

The "Special Needs" Exception

Here
12.27.2005 10:06am
Armando (mail):
Mr. Kerr:

Thank you for the clarification. I understood the distinction between whether the President, absent Congressional prohibition, has the power to act as he has - an open question, and whether he has the power to violate duly enacted federal law, to be critical here.

If, as you conclude, the President has violatd FISA, is it not fair to me to label such Presidential action as a violation of the Constitution as well, since the President is not being faithful to Article I and to his own duties under Article II?

But that is semantics. And I appreciate your clarifying this for me.

I will post on this today to set the record straight.

Armando at dailykos.
12.27.2005 10:08am
A.S.:
And I'm glad to see that the Administration isn't relying on the Article II argument any more, at least if its letter to the Hill last week is an indication.

Huh?

The very first sentence of legal analysis in the Moschella letter is: "Under Article II 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."

How in any way is the Administration not relying on the Article II argument any more???

As I read Moschella's letter, it is saying the following: (i) the President's authority to order the surveillance is granted in Article II, (ii) that Article II authority is supplemented by the AUMF (especially in light of the Hamdi decision), (iii) the AUMF puts requires us to analyze the President's actions under Youngstown's Category 1, and (iv) neither FISA nor the Fourth Amendment are inconsistent with or act to prohibit the surveillance.
12.27.2005 10:09am
Al Maviva (mail):

Posse comitatus forbids the use or "detailing" of military personnel for domestic law enforcement operations.


Lino_watcher, I believe that is an exceedingly broad reading of the PCA.

On your first point, the Posse Comitatus Act, 18 U.S.C. § 1385, prohibits the Army and Air Force from participating in civilian law enforcement activities unless authorized by Congress. "Participating in law enforcement activities" has been consistently construed in the case law as taking action that is "direct" or "pervasive" or "regulatory" in nature, see generally U.S. v. Red Feather, 392 F. Supp. 916 (D.S.D. 1975). Passive or "indirect" involvement in law enforcement activities is not prohibited. In essence, courts have held that soldiers and airmen may not be involved in manning traffic checkpoints, kicking in doors and directing a law enforcement operation (see e.g. Waco, Wounded Knee), but the courts have also held that passive involvement, including information sharing, is permitted.

It is possible to cite to 10 U.S.C. 375 to support your position. That statute is not the PCA, but mandates a regulatory version of the PCA for the Title 10 Armed Forces prohibiting involvement in "search, seizure or arrest." Does this prohibit general intelligence signals monitoring as a "search"? Not necessarily - "search" has a specific meaning under the 4th Amendment, and most of what NSA does appears to be outside the scope of that. Even if sigint monitoring did constitute a search per se, a concession made only arguendo, NSA could share relevant information with civilian law enforcement because 10 USC 371 gives the military authority to share intelligence information with law enforcement personnel if the intelligence information reveals a likely violation of the law:


(a) The Secretary of Defense may, in accordance with other applicable law, provide to Federal, State, or local civilian law enforcement officials any information collected during the normal course of military training or operations that may be relevant to a violation of any Federal or State law within the jurisdiction of such officials.


This sure looks like express Congressional authorization of information sharing, in which Congress abrogates its prohibitions elsewhere on military involvement with civilian law enforcement.

Moreover, given that the Administration has cited to the AUMF as the rationale for this program, a fair argument can be made that at least the portion of the program relating to the monitoring of the phones of known overseas AQ operatives falls within the Independent Military Purpose exception to the PCA. That exception permits the military to be involved in direct law enforcement activities, so long as there is a valid independent military purpose for doing so. For example, a CID investigation into a drug ring that includes civilians, but sells drugs on a military base, would be permissible, and it is not a violation of the PCA. See U.S. v. Hitchcock, 286 F.3d 1064 (9th Cir. 2002), amended opinion at U.S. v. Hitchcock, 2002 U.S. App. LEXIS 15726 (U.S. App., 2002)

On your second point, I believe it generally is not a prohibited practice under the PCA to detail Title 10 military personnel to NSA, given first of all that NSA is an intelligence activity, not a law enforcement activity; and perhaps more importantly given that NSA is a Department of Defense organization.
12.27.2005 10:09am
Armando (mail):
JR:

Being a lwayer myself, I hope it is not a label of disparagement.

I did not refer to Professor Kerr as a Professor because, to be frank, I did not know he was a Professor. For some reason I thought he was in private practice. I am familiar with his Justice background.

I meant no disrespect to Professor Kerr. Indeed, I expressly noted that he was respected, as I understand him to , by persons of all ideological stripes.

I read his work quite closely, even though we disagree quite often - and likely will on Judge Alito, where I await the hearings.
12.27.2005 10:14am
JR (mail) (www):
"I did not refer to Professor Kerr as a Professor because, to be frank, I did not know he was a Professor."

Armando: Thanks for the reply. You have scored honesty points with me.
12.27.2005 10:28am
KevinM:
(sigh). We're down a rhetorical cul-de-sac here. Obviously, the President can't do anything without in some sense "relying on Article II." And just as obviously, the President's usual obligation to comply with a duly enacted statute is not, strictly speaking, a "statutory argument," but has a Constitutional basis. But I think everybody knows what everybody means.
12.27.2005 10:35am
Smithy (mail):
Why does Kos hate America? Why don't they realize that freedom isn't free? This president wants to keep the nation safe. Kos wants to give the terrorists free reign to attack us.

When it comes to surveillance, those who have nothing to hide have nothing to fear. There is no evidence that anyone besides terrorists has been the target of surveillance. The story about that boy in Dartmouth, MA who was suppopsedly being spied on turned to be a hoax.
12.27.2005 10:44am
Armando (mail):
Smithy:

I assume that is satire.

Though Cass Sunstein may be the source of your thoughts.

Limbaugh said something similar -- irony is dead. Consider his long fight to keep hidden his medical records. What is HE hiding?
12.27.2005 10:51am
subpatre (mail):
The whole issue is so nebulous that every statement needs to be qualified.

Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation's legality and oversight.[Emphasis added]
Who's concerned here? The sentence can read either the officials are concerned, or the reporters are. The article needs a thorough, line-by-line Fisking to condense what little information it contains.

One possible reading of the NYT article is a total of one anonymous official "concerned about the legality" of the program; one Senator (Rockefeller) who hasn't commented one way or the other but did release a paper stating he didn't understand details of one of many briefings he was at; and one FISC judge, who's also not commented.

The NYT article could even be entirely about the changes the Patriot Act made; the elimination of the ong-standing criminal-intelligence 'wall' so criticized by the 911 Commission could be the "a sea change" the Times quotes.

Neither the original article or the followup makes allegations of warrantless purely domestic surveillance or illegal behavior.

Many readers --including those who should know better-- draw conclusions the article doesn't support. Many legal minds have read FISA, USC §1801 to §1811 to draw unwarranted, often diametrically opposed, conclusions.

Richelson's 1999 article is a good layman's introduction (attorneys not practicing surveillance law are laymen) to NSA surveillance operations.

Of the United States Signals Intelligence Directives (USSIDs), USSID 18 Legal Guidance and Minimization Procedures (1993) is mandatory to understanding the government surveillance terminology and procedures. Documents 11b - 11g amplify and provide examples of USSID 18's guidance.

At least one researcher believes FISA "...functions as a smokescreen, drawing attention away from important technical and constitutional issues" In that context the USSID's are critical; they provide details of what House and Senate bipartisan oversight Committees have approved of for the last dozen years.
12.27.2005 10:56am
Smithy (mail):
Armando, yes, Rush has made some good points about this fake scandal. And I assure that neither he nor I are in the satire business.

You cannot compare Rush's desire to keep his medical records private to terrorists' desire to keep their plans to attack secret. That is the worst sort of bogus moral equivalence. Sadly, I've seen many on the left engage in this with respect to Rush. Let's see how they feel if they hever have to endure chronic pain.
12.27.2005 10:58am
Jutblogger (www):
I still don't understand why the Adminsistration should be shying away from the Article II argument. I am of course, assuming -- which NOONE here seems to want to say at the beginning of their posts -- that the Administration is using this information for strictly national security purposes. If that is so, then of course the President not only has the authority but the responsibility to use whatever means available to gather that information. And the federal court system has consistently stated that such authority requires no warrants.
How can anything be said to be illegal regarding this issue when noone is providing the context? is this a criminal proceeding? who is the aggrieved party? or is this whole debate a scandal-for-hire? WHO is being protected in this debate? And from what?
Let me post an analogy:
FISA or no FISA; An FBI agent follows around a foreign national while he visits various american citizens. He traces his every move, and, eventually, uses a tele-microphone and wiretap to listen in on his conversations, without a warrant. This information is found to reveal a plot to bomb a bridge (on behalf of foreign entity X). the plan is thwarted.
Scenario 2; The FBI agent follows this same national, doing the same thing, uses the surveillance equipment, and instead discovers a drug ring. arrests are made. Fourth Amendment analysis applies and this person's rights are hopefully protected once in court (along with the co-conspirators).

it seems to me the context is the most important aspect of this analysis. having read cases like In Re Sealed Case and Truong, it seems that context is the most important issue for the federal courts as well. Because in certain contexts, the entire analysis is irrelevant (national security), FISA or not.
12.27.2005 11:12am
Timothy (mail) (www):
Yeah, because the government would never abuse its powers. Ever.

Pink Floyd asked, years before I was born, "Mother, should I trust the government?" The answer has been, and ever shall remain, "emphatically not."
12.27.2005 11:21am
Armando (mail):
Smithy:

Unless you posit that everyone is a terrorist, I don't follow your point. If the Adminstration has reason to suspect someone is a terrorist, certainly FISA provides all you could ask for, including a 72 hour period of warrantless surveillance, or alternately, a 15 day period upon the certification of the Attorney General.

What do I have to hide? Many things, as do all humans. Privacy is a cherished right in our country. Indeed, Rush cherishes HIS privacy. So why is it wrong for me to cherish mine?

I see now that you are not in the satire business. I take it you are not in the legal business either?
12.27.2005 11:22am
Armando (mail):
Professor Kerr:

My clarification is up - http://www.dailykos.com/storyonly/2005/12/27/112259/40.
12.27.2005 11:24am
Jutblogger (www):
Armando,
Yes, FISA does provide all you need, if you were conducting a criminal investigation. If you were not, for what purpose would you get a warrant? If I recall first year law school, a warrant is used for a criminal investigation, not to conduct foreign intelligence. Obviously FISA was enacted to allow an administration to get a warrant (which it otherwise would not do), so that it would have an easier time in a criminal proceeding once an arrest had been made as a result of foreign intelligence.
Again, without the context of a criminal proceeding, FISA is wholly irrelevant.
And to say the government acted illegally (shock!) because it gathered information without a warrant, um, let's see, how many motions to suppress have I won, countless. I don't recall any police commissioner's being fired because they authorized such conduct, or DA's being disbarred for it, but I do know a judge said the evidence was inadmissible.
The whole monarchy line of reasoning might as well be an add-on to Goodwin's law.
12.27.2005 11:27am
Armando (mail):
Jutblogger:

You should reread the 4th Amendment. It reads:

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

It does not say "this only applies for criminal investigations."

You should also reread FISA. Indeed, just consider the name of the law - Foreign Intelligence Surveillance Act. Its prupose is described in the title.

But these things have been hashed out quite ably at this site. This is not news from me.

Professor Kerr himself has explained why you reasoning is incorrect.
12.27.2005 11:35am
markm (mail):
"You cannot compare Rush's desire to keep his medical records private to terrorists' desire to keep their plans to attack secret."

1. That depends on whether or not drug addiction is a serious crime, doesn't it? What was Rush's public opinion on that before he got caught?

2. What makes you think the intercepts are only affecting terrorists? If they had good reason in advance to think each intercepted conversation did include a terrorist, they could comply with the law by applying for warrants - retroactively if necessary. So, what are the possible reasons they didn't get warrants:

a) It's too much paperwork. This excuse doesn't work for businessmen who missed one form in the mountains of paperwork the government imposes on them, why should it be accepted for the government?

b) Their reasons for expecting any particular wiretap to catch a relevant conversation are so ridiculous they don't dare write them down even for submission to a rubber-stamp FISA court. (Just what happens if their pet court doesn't grant a retroactive warrant?)

c) They are NOT just intercepting conversations related to terrorist suspects, but are intercepting as much as they can and using computerized word-searches to try to sort the terror-related material out of it. Obviously this technique wasn't anticipated by the writers of the Constitution, but it may be useful, and it may be constitutional when one endpoint of the intercepted transmission is overseas. However, it's forbidden by current law. If the administration wants to use it, they should have asked for legislation authorizing it.
12.27.2005 11:36am
Niels Jackson (mail):
Good Lord, Armando's misreading was silly. It would be as if an article said, "Federal funding for abortions isn't unconstitutional, but it would violate the Hyde Amendment," and someone came away with the impression that the article had argued that the Hyde Amendment was itself unconstitutional or something. News flash: Statutes can penalize or restrict activities that would not otherwise violate the Constitution, in and of themselves. This is a pretty elementary point.
12.27.2005 11:50am
Jutblogger (www):
In Re Sealed Case:

"We reiterate that Truong dealt with a pre-FISA surveillance based on the President's constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n. 4, it had no occasion to consider the application of the statute carefully. The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. FN26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power. The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable."

Indeed, having read both the fourth amendment and the cases that deal with FISA (post Patriot Act), it appears that FISA was intended, as I have argued, to amplify the president's inherent authority, and, as i have stated, make it easier for him to get that info into court.

Also, you have still not answered the fundamental question, who is being protected and from what specifically? in what venue? I find it highly unusual that you all go through these arguments without any context. Can you not provide one example or hypo to support your analysis?
12.27.2005 11:54am
Armando (mail):
Niels:

Excuse me, but I notice you didn't find Krauthammer's misreading silly.

Indeed, I did not misread Kerr - I simply asked what he meant by that.

Let me put it this way, the 4th Amendment issue that has been the focus of many is, to me, of less importance, than the Constitutional issue of whether the President is bound to follow federal law that touches upon regulating the military.

To me that is the Constitutional question that is most important here. And for Kerr to label Bush's a ction as "constitutional" did create a certain confusion as to whether he believed the Article II C-i-C power is unfettered, as has been argued by the Administration, most infamously by John Yoo.

It is rather silly to ignore that context, as you do.
12.27.2005 11:56am
Ron Wright (mail):
Rules sometimes must flex. It's implied and inferred that the Office of the President has the power to prosecute war.

Enemies unfortunately don't follow rules. Signal/ intel intercepts are a fundamental necessity to successfully win a war.

I'm sorry but the level of info/intel/info mining that the NSA does is of such a high order the risk of any individual intrusion is very minor unless there is a connection with the enemy.

As TopCat said in the other thread these debates seem to be predicated on abuses of the executive power in the ward on drugs. I agree with this.

I don't give a rodent's rearend about folks' meth labs, marijuana patch, or who's shacking with who. I do care about a very determined enemy that seeks the violent overthrow of this government.

The administration is at fault for not cleary identifying the enemy (unPC) and its intent for worldwide domination of thought and the rejection of what most of the free world cherishes

THE FREE WILL OF MEN AND WOMEN

With that said I'm willing to give the government a little leeway in the framework of "transparent privacy." I think this was what one of the finest thinkers re the US Constitution was saying, Presiden Abraham Lincoln.

Sometimes its worth raising your heads above the law books and crack the world history text for a global picture of the world around us before someone knocks you senseless

In the real world I would be more concerned with our financial sector and how they handle priviledge infor that you think is secret. Go to the following site and just see how secure you are:

www.zabbasearch.com


Again I would invite folks to scroll the comment thread of the search/seizuare issues of the 4th Amendment. Also read from the link to Strata-Sphere re the actual operation of FISA.
12.27.2005 11:59am
Armando (mail):
jutblogger:

If the question is addressed to me, I have 3 answers. First, the idea that an unfettered power requires amplification is utterly laughable. It is Silberman as his worst and I can not imagine anyone adopting that rationale.

Second, since Silberman himself rules that some restrictions of FISA apply to the Executive he contradicts himself.

Third, the Supreme Court's pronouncements, particulalry in Youngstown, completely contradict Silberman.

In short, you quote dicta that is particularly useless as it is contradicted by Supreme Court precedent.
12.27.2005 12:00pm
Armando (mail):
Ron Wright:

No, rules don't flex, they are modified and/or amended by the established legal procedures.

Indeed, the whole exercise of the Patriot Act was precisely that type of rulechanging exercise.
12.27.2005 12:02pm
Jutblogger (www):
yes he does rule that certain restrictions apply, however he does not contradict himself. This is so because he is simply saying restrictions apply to secure a warrant. No court, and you cannot cite one, states that the president does not have the authority to conduct warrantless surveillance for foreign intelligence. Silberman's statement is quite clear, heavily cited, and good law (indeed, it was used by the supreme court to deny cert in another case).

I have not stated the authority is unfettered. it is, however, inherent, just as that authority was recognized in Youngstown. an inherent authority can be amplified, as FISA does, to allow the administration to combine it's foreign intelligence mandate with its role as supreme law enforcement agent.

Further, we have still not addressed an aggrieved party in this instance nor given a hypothetical. I assume if you did, it would entail a criminal investigation/proceeding. I also assume you don't want to admit that because it limits your argument and neutralizes the "I" word.
12.27.2005 12:11pm
subpatre (mail):
The NY Times followup article is another example of breathlessly reporting decade-old news.
Spy Agency Mined Vast Data Trove....
"As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access...."

"Several officials said that after President Bush's order authorizing the N.S.A. program, senior government officials arranged with officials of some of the nation's largest telecommunications companies to gain access to switches that act as gateways at the borders between the United States' communications networks and international networks."

"If the government is gaining access to the switches like this, what you're really talking about is the capability of an enormous vacuum operation to sweep up data,"
The 1994 Communications Assistance for Law Enforcement Act (CALEA) mandates carriers' --that means phone companies-- equipment be capable of enabling the government, "pursuant to a court order or other lawful authorization", intercept electronic communications carried by the carrier, to access call-identifying information, etc.

There's some small protections in CALEA, but it's mostly a mandate that companies maintain equipment so the government can seamlessly plug in. The Times' feverish technical information about "main arteries" and "switches" are just lay terms for CALEA's "telecommunications transmission or switching equipment", passed 11 years ago.
12.27.2005 12:14pm
Armando (mail):
jutblogger:

You say

"No court, and you cannot cite one, states that the president does not have the authority to conduct warrantless surveillance for foreign intelligence."

I don't say it. This is a red herring. The issue is can Congress restrict this power. Silberman said it could not. He is wrong.
12.27.2005 12:15pm
snead16 (mail):
The administration's "inherent authority under a president's Art II commander-in-chief powers" seems to be alot of hokum.

The Federalist Papers No. 69, in which Hamilton contrasts the president's constitutional authority as commander in chief with that of the British monarch, states:

"The President is to be commander-in-chief of the army and navy of the United States. . . . It [the CIC power] would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature."

Federalist No. 69 would appear to debunk the myth of unlimited authority under the C-in-C clause.

Bush, as C-in-C, is no more than general in chief, subject to ALL regulations on the military's operations passed by Congress. See Art. I, Sec. 8.

Congress passed FISA. FISA covers the NSA. The NSA is part of the DOD.

Ergo, Bush -- and every president to follow -- has no more authority to order wiretapping as C-i-C than FISA allows.

This seems like pretty basic stuff . . . assuming the "framer's original intent" means anything here.

If not, well then, I suppose Cheney's view of Art II -- unlimited, uncheckable authority -- will prevail.

Insofar as the AUMF as the source of authority is concerned, the president's actions would have to turn on the meaning of the AUMF's grant empowering the President to “use all necessary and appropriate force” against persons that he “determines planned, authorized, committed, or aided” in the September 11, 2001, al Qaeda terrorist attacks.

It seems the key phrase is "necessary and appropriate" -- assuming for the sake of argument that the AUMF covers all persons suspected of aiding Al Qaeda post-9/11 (that is, persons who pre-9/11 had no association with anyone connected with or supportive of Al Qaeda].

In his dissent in Gonzales v. Raich, Justice Thomas said that the Constitution's "necessary and proper" clause meant that Congress could only adopt means to carry out one enumerated power not already expressly prohibited by the letter or spirit of some other Constitutional provision. 125 SCt at 2231.

It seems fair/reasonable to posit that AUMF's "necessary and appropriate" language should be read the same way as the Constitution's N-and-P clause.

If that's so, then the president's unenumerated implied powers under AUMF were cabined by already enumerated statutes regulating not only the military but the US government generally, such as FISA, unless expressly overruled.

Any other reading of the AUMF's N-and-A language would subsume all of the U.S. Code -- leaving the President free to be, well, a monarch.

As policy, what Bush authorized may be sound. But as law, what the administration did would not seem to be. Congress needed to be brought in.
12.27.2005 12:23pm
Niels Jackson (mail):
I didn't address Krauthammer because he didn't use the same sneering tone, nor was his misunderstanding quite as palpable. Kerr had made a very simple argument: The spying may be constitutional, but it probably violates a statute. You made some very dense statements in response, along the lines of, "Oh, so it's constitutional to violate a statute! Hmmph." Which obviously wasn't Kerr's point at all. In fact, you have to try pretty hard to read Kerr's original post in as boneheaded a way as that.
12.27.2005 12:25pm
Jutblogger (www):
Well I try to avoid bickering or seemingly getting personal, but, that wasn't a very substantive response. Having read your posts on Kos, I'm not finding support for that position either. You simply state: he is wrong. Your statement seems to me to be facially untenable considering how much litigation has been wrought over the constitutionality of FISA. My readings have been: to the extent the administration wishes to conduct warrantless searches, it is taken for granted he has that power. to the extent the administration would like to have a warrant for such searches, congress may set reasonable limitations on that power. i.e., the significant/primary purpose discussions.
In sum: the president has the authority to conduct foreign intelligence, the president does not have the unfettered right to a warrant to do so (which, if acquired, removes any fourth amendment discussion regarding the retrieval of the evidence for the purposes of admissibility).
12.27.2005 12:27pm
Jutblogger (www):
Edit: the administration wishes to conduct warrantless searches (for the purpose of foreign intelligence).
12.27.2005 12:28pm
M. Lederman (mail):
A few random thoughts:

1. Orin's original post was clear. He thought the Fourth Amendment question was close but that there were reasonable arguments (principally, the "border search" exception) that might support the Administration; that the NSA program almost certainly violates FISA; and that the argument that FISA violates Article II has virtually no support. That's a pretty damning indictment of the Administration's program, if you ask me. If Orin made any mistake, it was that he should have immediately called out Krauthammer when CK invoked Orin as support for his ridiculous defense. But in any event, the record now is clear.

2. Orin: I, too, think the Ramsey/Ickes argument appeared to be the strongest defense under the Fourth Amendment -- although it gets tenuous once the search is for content of communications rather than contraband, because the implications would be that all our international mail, phone calls and emails would become searchable without any warrant or probable cause: an alarming prospect. But I found it very telling that DOJ doesn't even invoke Ramsey, or border searches, preferring to rely instead only on a broad notion of "special needs" that doesn't really get them there. What do you think is up with that?

3. AS: The DOJ letter argues that the President has "inherent" constitutional authority to do such wiretapping in the absence of statutory restriction, which is fairly uncontroversial (at least as to some types of intercepts), but never really comes out and argues that if FISA prohibits this form of surveilannce -- which it does -- then FISA is unconstitutional. The closest it comes is a vague sentence about construing the AUMF to avoid a constitutional question. But that's a very weak argument, because (i) the avoidance canon only applies where, unlike here, the statute is ambiguous; (ii) the avoidance canon only applies where the constitutional question is serious, and DOJ (for good reason) makes no effort to argue that the Article II question is serious; and (iii) obviously, construing the AUMF to authorize this program would raise a serious Fourth Amendment question (something on which everyone, including Orin and DOJ, concurs), and thus, if anything, the avoidance canon cuts the other way.

4. Jutblogger: As you note, in support of his unorthodox suggestion that FISA is unconstitutional, Silberman in In re Sealed Case cites only Truong. But the Truong court specifically indicated that FISA’s restrictions were constitutional: “[T]the complexity of the statute also suggests that the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President. 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.” 629 F.2d at 915 n.4. Truong is correct; the dictum in In re Sealed Case is wrong; and DOJ does not argue otherwise.
12.27.2005 12:37pm
Just an Observer:
I am confused by Professor Kerr's statement: "I'm glad to see that the Administration isn't relying on the Article II argument any more, at least if its letter to the Hill last week is an indication."

My reading of the DOJ letter is the opposite. It seems to me that the Bush administration relies on its Article II justification primarily, and the statutory justification (the AUMF resolution) only secondarily.

The letter first lays out the constitutional claim:


Under Article II 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. ...


Then the letter adds:


The President's constitutional authority to direct the NSA to conduct the activities he described is supplemented by statutory authority under the AUMF. ...
12.27.2005 12:44pm
Armando (mail):
Jutblogger:

I have written about 10 posts on the issue. I address Silberman in one of them, I don't remember which.

On Krauthammer, of course he was not "sneering" - he was cting Kerr incorrectly but approvingly. Being wrong is ok I suppose as long as you are approvingly wrong?


Marty Lederman:

As for Kerr's post being clear, it is as far as it goes, but it did not make a clear statement on the Article II/Congressional power assertion, or rather it muddies the water with the legal/Constitutional language.

An illustration: the exercies of power by the Congress beyond thse granted under the Commerce Clause and Article I, Section 8 is rightly called unconstitutional.

Here the President may have Constitutional power to act as he did, but the ultimate question is can Congress restrict that power. It is, ultimately a Constitutional question and to declare the President's actions as illegal but Constitutional is unnecessarily confusing IMO.
12.27.2005 12:53pm
Armando (mail):
My apologoies to jutblogger. My point on Krauthammer should have been addressed to Neils.
12.27.2005 12:54pm
Jutblogger (www):
Lederman,
First, nowhere does the president limit his own authority by stating it can be restricted by statute. The letter is quite clear, and, in fact, cites the very dictum I cite above. However, it does note that FISA makes such a limitation.

The letter goes on to state that it is unclear whether such a statement does limit the power as it relates to this particular NSA program, and then states that any such ambiguity must fall in favor of article II, and the inherent authority to conduct such searches.

It also appears that one cannot simply dismiss the "dictum" of In re Sealed Case, because the administration certainly does not, the supreme court has not overruled it, i have not found a distinguishing case from sealed case, and, until such is done, it is posturing to simply say: it is wrong.

like minds agree it is not.
12.27.2005 12:56pm
Armando (mail):
Neils:

My point is that Yoo and others who argue as he does have made precisely the argument that violating FISA (and the Torture staute) is constitutional.

I agree with you that it is boneheaded.

Kerr was not clear on that point IMO, because he used the legal/constitutional language.
12.27.2005 12:57pm
Armando (mail):
jut:

Dictum from an appellate court is not likely to be ruled upon by the Supreme Court. Indeed, it really can not be. I t can be commented on but since it is not a rul that the Supreme Court will face, unless adopted as a holding, you are waiting for Godot on that one.

As for arguments against the dictum, you kow they havebeen made. Indeed, the argument I have been facing here is that Kerr obviously made the argument and I was "boneheaded" not to realize it.
12.27.2005 1:02pm
M. Lederman (mail):
Jutblogger:

1. Actually, the DOJ letter conspicuously does not cite the portion of the In re Sealed Case dictum suggesting that FISA can't limit the President's power ("FISA could not encroach on the President's constitutional power").

2. The reasons there are no cases "distinguishing" In re Sealed Case's dictum is because (i) the law is fairly clear that restrictions such as those in FISA are fully constitutional (as even Truong explains); (ii) it is a dictum; (iii) the Congress and the President agreed that FISA was constitutional when they negotiated and enacted it; (iv) no one, certainly not DOJ, has been so bold (or reckless) as to argue to any court that FISA unconstitutionally restricts the President, and therefore there has been simply no occasion for any court (or commentator, for that matter) to contend with the "argument" (if you could call it that). Nor do I imagine there will be -- not even DOJ has the gumption to take the argument seriously, or to make it expressly. (I wouldn't be surprised if there were an internal John Yoo memo making the argument back in 2001 or 2002 -- but I think it's very telling that DOJ isn't releasing any such memo, or making any such argument, now.)
12.27.2005 1:08pm
The Ace:
has passed a law that is consistent with the Constitution and the President can disregard it? That's a Constitutional action by the President?

This sums up today's left perfectly.
Silly
Ignorant
Morons
12.27.2005 1:18pm
Jutblogger (www):
I agree dictum is not binding, but you of course know that when there is no case on point, dictum becomes the guiding language for any case that does come before the court (i.e., blakely/booker).

The ultimate question here, still not answered, is: in what venue and under what auspices will this administration have to deal with this question? I also think the administration does not want to make any admissions or limit itself with any particular arguments before any such matter would come before a judicial officer.
12.27.2005 1:20pm
The Ace:
-k:

Re: United States v. United States District Court

Not sure what your missing about internal security matters.
I suggest you lookup "internal" and get back to us.
Or re-read this portion:

[T]he instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country.


I am at this point literally astounded that people are still arguing over this and that it is "illegal."
12.27.2005 1:25pm
Marcus1:
Armando,

>I understood the distinction between whether the President, absent Congressional prohibition, has the power to act as he has - an open question, and whether he has the power to violate duly enacted federal law, to be critical here.<

Even that first question wasn't really addressed by Prof. Kerr. Just because something doesn't violate the 4th amendment doesn't mean the President has the power to do it.

The program was not constitutional unless the President had the constitutional authority to enact it. If FISA prohibits it, and the Article II argument fails, then the fact that it doesn't violate the 4th amendment doesn't make it probably constitutional.

It's more than semantics.
The fact that Bush violated a statute doesn't settle the question to most people. They want to know whether he had the right to do that. The final answer to that has to be, "No, Bush's actions were unconstitutional."

It seems Prof. Kerr would rather not state that conclusion. Unfortunately, that has lead many people to misread him.
12.27.2005 1:26pm
John Herbison (mail):
One point that may not have been adequately addressed is the requirement of Article II, § 3 that the President shall take care that the laws be faithfully executed. Why would that clause not make, ipso jure, an executive direction to disregard express statutory prohibitions or limitations itself a transgression of separation of powers of constitutional magnitude?

Since the long post of December 19 appeared, Attorney General Gonzales is widely reported to have said that the administration considered asking Congress to amend FISA, but rejected that option as politically unlikely to succeed. That raises profound concerns about this administration's contempt for separation of powers and the rule of law itself.

The situation is complicated by the absence of an effective legal remedy. The exclusionary rule would apply to any criminal prosecution; however, the Justice Department (perhaps for that reason) does not appear to be inclined to prosecute based upon information which is acknowledged to have been obtained through the surveillance methods in question. The secrecy surrounding the program renders it difficult to identify aggrieved parties who would arguably have standing to sue for declaratory or injunctive relief. (The burden of showing that the harm is capable of repetition as to a particular individual or entity is also problematic.) Suit for damages is in all likelihood foreclosed by Nixon v. Fitzgerald.

That leaves the remedy that the founders reserved to the Congress in cases of treason, bribery, high crimes, misdemeanors and fellatio. Impeachment, however, is always a political question, and the political will to sustain that course of action is absent.
12.27.2005 1:26pm
The Ace:
And I'm glad to see that the Administration isn't relying on the Article II argument any more, at least if its letter to the Hill last week is an indication

Which letter are you reading?

1. Actually, the DOJ letter conspicuously does not cite the portion of the In re Sealed Case dictum suggesting that FISA can't limit the President's power ("FISA could not encroach on the President's constitutional power").


HUH?

GO TO PARAGRAPH 5:

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. See, e.g., In re Sealed Case, 310 F.3d 7 17, 742 (FISA
Ct. of Review 2002) ("[AIII the other courts to have decided the issue [have] held that the President
did have inherent authority to conduct warrantless searches to obtain foreign intelligence
information. . . . We take for granted that the President does have that authority. . . .").


Wow, literally amazing.
Do you people even read what you write?
Or more appropriately, read-up on the topics on which you're opining?
12.27.2005 1:31pm
Armando (mail):
jut:

You mean Supreme Court dictum don't you? I don't agree with you that the dictum in Sealed Case mean anything to any court except the FISa appeals court and the FISA court.

And its dictum is pretty meaningless there as the very FISA court itself is created by statute.

To be honest, it is a clear throwaway line by Silberman IMO.
12.27.2005 1:32pm
CharleyCarp (mail):
Mr. Herbison, there are two other ways it can come up. First, if from the hearings Congress seems likely to hold it becomes apparent that some officials other than the President violated 50 USC 1809, then those persons can be prosecuted (presumably but the US Attorney for Maryland, if the violations took place at Ft. Meade). Second, should some US citizen find out that a call has been listened to, that person would have a claim under section 1810 against all involved.

The constitutional issue might not be raised in the criminal case -- that section is quite clear as to what an officier of the United States may rely upon as a defense, and a preemptive get-out-of-jail-free card from Mr. Yoo won't work. In a civil action, though, I would expect Mr. Rumsfeld to claim in his defense that his authorization of the tap was immunized by the President.
12.27.2005 1:41pm
M. Lederman (mail):
Ace: This really isn't difficult to understand. The DOJ letter quotes the portion of the In re Sealed Case dictum stating that the the President has inherent authority to conduct warrantless searches to obtain foreign intelligence
information" -- a proposition that is unremarkable, undisputed, and that would not, in itself, suggest any constitutional authority to ignore FISA -- and the letter then conspicuously fails to quote the remainder of the Sealed Case dictum, which is where that court went off the rails, i.e., "FISA could not encroach on the President's constitutional power."

DOJ does not, in other words, argue that "FISA could not encroach on the President's constitutional power" -- because that would be an audacious and wrong argument.
12.27.2005 1:45pm
The Raven (mail):
Why is it wrong to contend that FISA could not encroach upon the President's constitutional power. Bush couldn't issue an executive order declaring that the Senate may hereafter only enact laws with 55 votes in support. If the President has an Article 2-based right to exercise certain power, the Consitution must be amended to restrict that right. A federal statute like FISA cannot do so.

Or am I missing something?
12.27.2005 2:10pm
Tom Holsinger (mail):
A.J. Strata suspects that Judge Robertson might be under criminal investigation for leaking classified information he obtained as a FISA judge, and says we'll know for sure if Robertson takes a leave of absence from the D.C. Circuit.

http://strata-sphere.com/blog/index.php/archives/1090

"We were one of the first to see that the resignation of Judge Robertson from FISA was more likely the act of someone under investigation for leaking and damaging the NSA surveillance of Al Qaeda communications with people in the US. For a protest resignation, both Robertson and the Bush administration were way too quiet. For an investigation of leaking classified material, the behavior was all too recognizable as Robertson lawyers up and the Feds go silent with their investigation.

We will know for sure if Robertson starts missing days on the bench on the DC circuit court - a position he has not resigned yet. But one he cannot retain while under investigation.

... Is he clearing his docket of cases so he can go on a hiatus? We will know soon enough. Judge Roberts is due to be assigned emergency cases at the US District Court January 1-2, 20o6. We shall see if that status remains for the time being. Robertson is also assigned Motions Court for February.

If Robertson is under investigation, it should be ‘leaked’ fairly quickly."
12.27.2005 2:17pm
frankcross (mail):
Yes, the Raven, you're missing something. Assume Bush has an Article II right to engage in wireless surveillance. Congress also has an Article I right to legislate in the area that is textually at least equally clear. Your view encroaches on the legislative power. It's a shared power, like in the Youngstown case.
12.27.2005 2:24pm
Marcus1:
The Raven,

You're missing the fundamental nature of our three branches of government: Congress writes the laws, the President executes them, and the courts interpret them.

This is the very basic nature of our government: Congress tells the executive what to do. Not the other way around.

The President only has authority which is given to him either by the Consitution or by Congress. As Prof. Kerr noted, there simply is no grant of authority from either source which would allow the President to create this program.
12.27.2005 2:25pm
Jutblogger (www):
Armando,
True, supreme court dicta matters most. Until, however, any such case would reach the S. Ct., the dicta of the court(s) of jurisdiction would be guiding. i.e., FISA lower through appellate. likewise, if the second circuit hasn't ruled on a particular issue, but mentioned the issue in a prior decision, a future decision might cite that case to either agree, disagree, adopt, modify, what have you.
that being said, my point being, I am not arguing the power is absolute, there are restrictions set upon the power by the constitution itself, as Youngstown makes clear. However, FISA cannot prohibit warrantless surveillance, and doesn't attempt to, it merely restricts the administration's ability to acquire a warrant (IMO).
my argument rests on the purpose of that restriction:
is it because the executive should not be allowed to conduct such searches without a warrant? or, is it because a warrant would make the evidence obtained admissible, and, thus, is an actual enhancement of the power (by expediting/limiting the procedure needed to attain a warrant)?
my argument is that it is the latter.
12.27.2005 2:25pm
A.S.:
DOJ does not, in other words, argue that "FISA could not encroach on the President's constitutional power" -- because that would be an audacious and wrong argument.

I think Marty Lederman needs to think this through a bit further. DOJ does not argue that "FISA could not encroach on the President's constitutional power" because they don't need to. DOJ's argument is that the surveillance is consistent with FISA; if the surveillance is consistent with FISA, then whether FISA "encroaches" on the President's Article II power is irrelevant.

All of the discussion about whether FISA "encroaches" is in an alternative in which we assume that the surveillance is illegal under FISA. Since DOJ doesn't accept that assumption, it doesn't need to make the argument regarding "encroaching". DOJ argues that we are in Youngstown Category ONE, not three - where Congress and the President are acting in concert, not at odds.
12.27.2005 2:25pm
Just an Observer:
A.S.

Are you saying -- and do you think it is the administration's argument -- that the inherent Article II authority for the NSA activities in question only obtains if we accept Bush's legislative-interpretation claim that AUMF superceded FISA's requirements?

The way I read the DOJ letter, its primary claim is that the Article II power is itself sufficient, and that the AUMF was merely icing on the cake: "The President's constitutional authority to direct the NSA to conduct the activities he described is supplemented by statutory authority under the AUMF."
12.27.2005 2:44pm
The Raven (mail):
I understand the three branches of government. I do have a law degree as well, although I admit Separation of Powers issues is not my area of expertise. I haven't read the Youngstown case since law school, but it seems to me the power to intercept potential enemy communications in a time of war is very different than the right to operate steel mills. The latter strikes me as akin to the President interloping on the legislative domain, whereas the current situation strikes me as the legislature doing the encroaching.

Also, regarding the declaration of war against Al Qaeda, what exactly does a declaration of war allow the President to do that he otherwise could not have done? Just mobilize troops and attack someone? Or does it not encompass a wider range of authority? If Korematsu upheld the right of FDR to herd up American citizens in a time of war - an act clearly illegal under any number of laws in a time of peace - why wouldn't an act of war implicitly over-ride legislative acts like FISA inconsistent with the powers necessary to wage that war?

I tell you, though. If we raid an Al Qaeda safe house in Kabul or somewhere and recover a cell phone, and we look at the ingoing/outgoing calls and see a recently placed call to a New York or Las Vegas phone number, I'd want a tap on that phone immediately. FISA requires probable cause for a warrant, but I doubt the mere fact that an Al Qaeda member called someone qualifies as probable cause under any criminal standard. Under that scenario, it sounds like Bush did what I suspect 90% of Americans would demand he do. Maybe the practicalities and potential consequences here are so huge that I'm willing to interpret the law in any way possible to allow it, but at the end of the day, we'd better be doing this. I suspect that's why no Democrat has called on Bush to stop it.
12.27.2005 2:51pm
Nunzio (mail):
I think we can pretty much ignore the case law at this point, which is contextually out of date for what's going on (especially the Steel Seizure case).

Some people think since 9/11 we have to take the slightest threat of terrorism so seriously that the President must be able to do warrantless searches, FISA or whatever be damned. Others, say no (or at least not while Bush is President).

So, I think we are in one of those "constitutional moments" that Bruce Ackerman (I think) talks about: people either will or will not let the President use warrantless domestic surveillance.

I'm not sure what I think (though I'd feel better if we had another person as President in this situation), but in addition to 9/11, the attacks in Madrid and London should also be factored in. I also think if we had more than one Oklahoma City bombing during a three-five year period, we'd be doing warrantless domestic surveillance of suspected domestic terrorists (actually, I'd be surprised if we didn't in the wake of Oklahoma City).
12.27.2005 2:57pm
Mary Katherine Day-Petrano (mail):
I know this is a little off the present course of discussion here, and I have been working on something and have taken a break from this extremely interesting ongoing topic over several threads of the last few days, but I am curious about the following:

If an American citizen is forced to use voice-recognition device on a computer, which is on a wireless card, and otherwise uses cell phone, all due to use of these devices in a home aboard a vessel on navigable waters, and we assume these transmissions are bouncing in and out of the domestic US while ECHELON data mining, keyword searches, and other electronic surveillance is applied to this particular target US person and the family -- how does this change the equation of lawfulness of the surveillance?

I am extremely interested in this, particularly in light of the failed admiralty provisions on the rejected Patriot reauthorization. Obviously the fact they were included in the draft legislation was of significance.

Recalling the Titanic case, US federal court exercised jurisdition in admiralty salvage over sunken ship far beyond US jurisdictional waters, I am wondering if in the above scenario, due to the wireless and cellular transmissions transmitting from a vessel within admiralty jurisdiction, even if they bounce in and out of the US internationally, wouldn't the extra-territorial reach of the admiralty jurisdiction extend the 4th Amendment and FISA warrant requirements to even the bouncing transmissions? (Assuming here, there is no emergency cause for a warrantless surveillance).

Another bit if curiosity, if the disabled person is forced to use such a device for a disability (sort of like a paraplegic would use a wheelchair), only this particular type of device hapens to be at the core of electronic transmissions, and the device is used wireless in the home (as well as elsewhere), what authority does the President and NSA (ECHELON) and/or FBI (renamed CARNIVORE) have to constantly at every moment be subjecting the disabled person to domestic surveillance through her disbaility device which she is forced to use to accommodate her disability? Also, wouldn't this type of domestic surveillance by NSA amount a vioation of the Third Amendment (in essence, quartering military soldiers through the disability wireless computer device in her home?) No less, her home aboard a vessel on navigable waters?

I apologize for throwing a curve ball into the discussion, but I am a voracious reader on these things since my father worked for IBM from late 1950s through the present (employee, then contractor) on what I believe to be portions of ECHELON.

I am also very curious in terms of ECHELON and the data mining, of what effect, for example, linking this domestic surveillance into certain banking electronic networks, e.g., Bank of America's massive database, serviced by IBM, would have on the scope and privacy issues involved in this discussion.
12.27.2005 3:01pm
The Ace:
This is the very basic nature of our government: Congress tells the executive what to do.

Let me guess, you have a degree in history, right?
12.27.2005 3:03pm
Tom Holsinger (mail):
Raven,

The Court held in Youngstown that a President's acts are entitled to greatest judicial deference when those are done pursuant to express or implied Congressional authorization. I.e., his constitutional war powers are enhanced, to the extent they can be, by an AUMF.

John Yoo makes a good argument that a President's war powers are inherent in the Constitution. I buy his argument concerning use of military force against armed enemies - there an AUMF adds nothing, and the War Powers Act is unconstitutional (as well as being effectively dead after President Clinton ignored it over Kosovo).

Domestically I'm not so sure, and suspect that an AUMF adds a degree of judicial deference to a President's use of war powers domestically which it would not otherwise merit. My analogy here is to the truly vast domestic war powers a President obtains pursuant to statutes which take effect only upon a formal Congressional declaration of war. Congress may not reduce a President's constitutional war powers by legislative act, but it can enhance them.
12.27.2005 3:03pm
Jay Louis (mail):
Something that seems tangential that I nonetheless think should be mentioned is that the NSA domestic surveillance program seems unlikely to ever be litigated. This is because it is difficult to think of a party that simultaneously has standing and KNOW he/she has standing. It would seem that the only actor that could address the permissibility of the surveillance program would be Congress through its oversight function. But perhaps there is a role for the courts to play in reviewing the constitutional and statutory permissibility of the surveillance program. Only time will tell. But from this vantage point, it seems like examining the permissibility of the President's program will be entirely up to Congress.
12.27.2005 3:04pm
The Ace:
DOJ does not, in other words, argue that "FISA could not encroach on the President's constitutional power" -- because that would be an audacious and wrong argument.

Well, that's open to interpretation.
The letter is very clearly noting that a court has ruled on the "inherent authority" matter.

I defer to A.S's comments above.
They are dead on accurate on the matter.

The left is assuming without evidence, the President has ordered warrentless domestic surveillance in violation of the law.

Pure specualtion and silliness to a very high degree.
12.27.2005 3:08pm
Mary Katherine Day-Petrano (mail):
Oh, almost forgot, recalling the way our local Florida State Court links all attorneys to all their cases thru a "UPN" number, so at any moment this can be searched, I am wondering, beyond the ex parte issue, what would be the effect if this domestic surveillance by NSA is being used to link through data mining and/or keyword searches targeted to a particular civil rights activist as means to affect the outcome of, manipulate, and/or interfere with numerous cases in a variety of state and federal courts -- in essence to circumvent the checks and balances that are supposed to be inherent in an impartial judiciary by an all powerful executive branch improperly using and sharing fruits of potentially unlawful domestic surveillance to neutralize judicial outcomes of challenge to executive action? Could such improper use extend to abridge the random assignment requirement of cases in a court, given that this, too, is electronic by computer?
12.27.2005 3:10pm
Greedy Clerk (mail):
If Korematsu upheld the right of FDR to herd up American citizens in a time of war - an act clearly illegal under any number of laws in a time of peace - why wouldn't an act of war implicitly over-ride legislative acts like FISA inconsistent with the powers necessary to wage that war?

Isn't it funny that the right is now relying on Korematsu as the precedent justifying the President's actions. Korematsu is rightly regarded as one of the biggest black marks on the history of the Supreme Court, right up there with Dred Scott and Plessy v. Ferguson. Indeed, President Reagan himself apologized for the government's actions and stated that in the (then) administration's view the rights of the Japanese to due process were violated -- thus, that Korematsu was dead wrong. In fact, a lower court later vactated Korematsu's conviction (which the Reagan administration did not appeal) because it was based on lies by FDR's Justice Department. Funny that the same thing is happening now. . . . . And there is no irony at all that Korematsu is being dragged out as the case that justifies it. I can't wait to read the internal Yoo memo that cites Korematsu as precedent!

12.27.2005 3:16pm
The Raven (mail):
This does strike me as one of those issues so distinguishable from prior factua situations in light of the War on Terror and the recent rise of cell phones that past cases will be clung to or distinguished as need be. I recall asking a friend of mine who was railing against Bush whether he'd agree that the mere presence of a call made to or from an Al Qaeda member was probable cause to justify a warrant. He said he thought so, and Bush therefore should have gone through the FISA court.

In fact, I think he was just doing the same thing I was, in a different way. He wanted to pretend he was sticking to FISA while watering down its probable cause standard to a degree not intended by that statute. I think a lot of Bush's critics are doing that - defending a FISA statute that does not exist in order to suggest that Bush could easily have complied with that law and still kept us safe.

There's no substantive difference between bypassing FISA and obtaining a FISA warrant with the judge winking at you the whole time. I see it this way. You're Bush. You need these taps. You rarely have probable cause and FISA generally takes 24 hours anyway. A debate in Congress to expand FISA would reveal exactly what you intend to do. You have a good-faith constitutional argument from your AG, and no case law right on point against you. How can anyone fairly disagree with Bush's decision to go ahead?
12.27.2005 3:20pm
Andrew J. Lazarus (mail):
In today's (Tuesday) NY Times, the Article II argument re-appears as an Op-Ed from two former Justice Department lawyers.
Even if Congress had intended to restrict the president's ability to obtain intelligence in such circumstances, it could not have constitutionally done so.
You'll have to excuse my being so blunt, but this indeed the formula for a monarchy, or rather a serially-elected dictatorship. If Congress passes a law setting the size of the Armed Forces at N, can the President enlist N+1? If Congress authorizes a certain pay scale in the Armed Forces, can the President change it? If Congress specifically provides in its budget that no monies are to be transferred to the benefit of Ahmad Chalabi, may the President cut him a check anyway? Where exactly does this power end? The Article II argument proves too much to be true: it eviscerates all pretense of small-d democratic control of the government insofar as the Executive can construe his acts to be consistent with national defense.

On this formulation al Qaeda will join the Judeo-Bolshevik conspiracy and the Windmill Wreckers as one of the great excuses of all time.
12.27.2005 3:21pm
The Ace:
If Congress passes a law setting the size of the Armed Forces at N, can the President enlist N+1? If Congress authorizes a certain pay scale in the Armed Forces, can the President change it?

Straw
Man.

Re-read article I
12.27.2005 3:25pm
The Raven (mail):
Lazarus,

You should ask the question every other way. Can Congress refuse to authorize funding for the Supreme Court and thereby close it down? Can Congress pass a law barring judicial review? Can the President issue an executive order banning filibusters or changing the number of members of Congress? Can the courts revoke Article 2 of the Constitution? The anarchy you fear is nothing more than recognizing that each branch of government has powers that the other branches can't restrict, and national security is entrusted to the President. Intercepting enemy communications in a time of war is hardly a tortured reading of the powers inherent in national security.

Intercepting the Japanese communications through MAGIC was one of our greatest weapons in WWII, and I highly doubt we turned off the microphone when one of those calls went to a US Citizen in the US.
12.27.2005 3:27pm
Tom Holsinger (mail):
Raven,

IMO the present problems with the FISA statute establish that the law enforcement model cannot function in war. Speed of execution is critical in war. Deliberation is critical in law enforcement.
12.27.2005 3:27pm
Just an Observer:
Tom,

The speed issue, given the 72-hour retroactive capability, does not seem to be the real reason that warrants were not sought. That is mostly a red herring argument for PR purposes.

The substantive issue is that these NSA activities, as they have been reported, would not satisfy probable cause requirements for a FISA warrant.
12.27.2005 3:32pm
The Raven (mail):
Just an observer,

We're really speculating here because I don't know exactly what was going on, but the two issues you raise seem inter-related. The speed issue is directly implicated by the need to obtain probable cause. How long would it take to obtain, organize and present a case for probably cause, if ever? 72 hours? more? I'm sure it varies in each case.

I suspect you're correct that FISA was bypassed not exclusively for speed reasons, but if the machinery of FISA is only being used when probable cause and enough time exists and ignored when they don't, why pay fake homage to the statute? As I understand it, Bush did seek retroactive FISA review, but even this must have been pro forma if he believed he didn't need their approval anyway.

It reminds of of when Bush the Elder publicly claimed he didn't need congressional authorization for the Persian Gulf War and then submitted it to Congress anyway. Basically, he said "I'm going to do it, but you can authorize it if you want". Ditto for W, the Iraq War and the UN Security Council.
12.27.2005 3:39pm
Tom Holsinger (mail):
Lazarus,

I suggest you take that up with the D.C. Circuit. They held in 2002 that the president has "inherent constitutional authority to conduct warrantless foreign intelligence surveillance."

You can also try winning enough elections to amend the Constitution so it says what you want.
12.27.2005 3:40pm
A.S.:
Just an Observer: I think my reading of the DOJ letter is close to yours.

Here's how I see the legal issues (in the order they were presented in the letter):

1. In the absence of any Congressional acts (either supporting him or contradicting him), does the President have authority to conduct the surveillance?

2. Does the AUMF add to the President's authority?

3. Does FISA detract from the President's authority?

4. Does the 4th Amendment detract from the President's authority?

DOJ answers the first two issues as follows: first, in the absence of Congressional action (i.e., under Category 2 of Youngstown), the President has authority. Second, the AUMF adds to the President's authority (i.e., it moves the case from Category 2 of Youngstown to Category 1).

The third issue is where all the controversy here today is. DOJ argues that FISA does NOT detract from the President's authority because FISA wasn't breached (i.e., since there was no breach of FISA, the case is NOT moved to Category 3 of Youngstown). This is where Marty Lederman is hung up. Lederman believes that FISA was breached, and then proceeds to the next question (call it issue 3b) - does Congress's contradicting statute (FISA) detract from the President's authority sufficiently such that the President may no longer constitutionally conduct the warrantless surveillance, or does FISA "encroach" on the President's authority such that FISA is unconstitutional (as applied to this specific case - not in general)? All I am trying to say is that DOJ never reaches that subsequent issue 3b, and thus doesn't supply the quotation from In re Sealed Case that applies to it, because DOJ argues that FISA wasn't breached.
12.27.2005 3:41pm
Tom Holsinger (mail):
Observer,

It is not just the speed of the Court in making rulings. The speed required to prepare warrants capable of withstanding nit-picking judicial review is also involved.

Tell us again how hours aren't critical in war and wartime intelligence.
12.27.2005 3:43pm
KMAJ (mail):
I watch the debate going back and forth, and the one thing I see missing is the aspect that this is in reality treading on new territory, one that will quite likely require a Supreme Court ruling. Whether the political perspective is left or right, each can grasp onto certain aspects of precedence and previous rulings, even the Constitution, that seem to support their argument.

The reality is the parameters changed with the War on Terror and the AUMF. Historically, the War on Terror is vastly different than any other war this country has engaged in. The constructs that are the basis for past wars do not easily transfer to the WOT.

The second pertinent reality is the advancement in technology and the ever increasing globalization and interactivity. This has quite clearly blurred the distinction between domestic and foreign since the last changes were implemented on the FISA Court in the '90s. Just to assess the Echelon program alone is going to require extensive deliberation and analysis. Is data mining unconstitutional ?

If we are to address this legal conundrum in any meaningful way, politics MUST be put aside. I think most can agree the WOT, and its conduct, is too important to be used as a political football.
12.27.2005 3:47pm
The Raven (mail):
It seems quite a few questions follow from what we're debating here. If one of these warrantless taps reveals that Mr. X is planning to blow something up in NY very soon, does that justify a search of Mr. X's home in NY? Does it justify a warrant to search the home or does the same "national security" power continue?

My opinion is that it does, and a warrantless search of the home on credible information of terrorist plotting would be justified. The President has hinted that at least some cells/plots have been thwarted as a result of this practice. If so, it would be interesting to see the follow-up. How did they break up the cell? Did they obtain a warrant? Did they use the information obtained in these taps to justify the warrant, and did the judge refuse to exclude the evidence? If all these taps are illegal, how did we ever follow-up on this info.?

I suppose this is where the Padilla issues intersect the Article 2 issues. If probable cause never existed to tap the phone, and the phone call led us to a cell, and we break up the cell and discover explosives, etc. without having any probable cause initially, no conviction in criminal court is possible. So if we can't hold them as enemy combatants, we can't do anything. Perhaps this is why the Bush administration was so adamant on the principles of the Padilla case even though in that case at least they had enough to criminally convict.

Just thinking aloud.
12.27.2005 3:52pm
Just an Observer:
Tom,

I'm not saying that the process requirements are not a pragmatic problem. I'm just trying to distinguish that problem -- which arguably can be addressed by such legal or administrative methods as hiring more lawyers for the NSA staff or extending the deadline in the law -- from the substantive issuses.

The interesting substantive issues are raised if we assume for purposes of discussion, consistent with what news accounts have reported, that the surveillance targeting was not generally justifiable under the court's probable cause standard. That would be the case even if the NSA lawyers had 72 days instead of 72 hours to complete the paperwork.
12.27.2005 3:54pm
A.S.:
You'll have to excuse my being so blunt, but this indeed the formula for a monarchy, or rather a serially-elected dictatorship.

I'm curious whether Andrew J. Lazerus believes there is any war-related power at all that the Constitution prohibits Congress from interfering with? That is, can Congress regulate every single thing that the President does in a war? Can Congress constitutionally provide that every bombing target be approved by an independent agency (say, the Federal Bombing Authority)? Could Congress have provided that the Army must take over Frankfurt before it takes Berlin?

It seems to me that those arguing that Congress can regulate EVERYTHING in a war are THEMSELVES arguing in favor of a dictatorship, or, rather, an oligarchy - where Congress is preeminent, rather the President.

I think that our Constitution provides for separate, CO-EQUAL branches of government. That means that Congress is preeminent in some areas and the President is preeminent in other areas. And war-fighting is where the President is preeminent.
12.27.2005 3:55pm
Ron Wright (mail):
The Raven,

You're one of the few making sense here.

The bottom line is we are at war as I mentioned up thread. This calls for flexibility that our founders understood and gave the President broad powers to prosecute a war. The 4th Amendment came only after in the Bill of Rights. Generally this is an issue only in criminal cases re the prohibition against unlawful seizure of evidence. The remedy is the exclusive of such evidence in criminal cases.

On the otherhand the 4th Ammendment says nothing about a limitation to a governmental criminal processes but only states the right of American citizens to be secure from unwarranted governmental intrusions. I guess a civil rights case could be brought if the governmental intruded for no particular purpose and it was determined to be unreasonable. Don't know if this is related to the practice of quartering troops in houses the framers were also trying to protect against. Hence my snide remark about standing and determining damages of a civil litigant. Where's the harm? The key point here that folks are overlooking is the high level of sniffing done is not localized to a specific person. As long as the government doesn't rat me off about my "squeeze" on the side nor tries to prosecute me for my medicinal acre of prime pot, or costs me money, I really don't care. See my point up thread re privacy issues re the financial sector.

This is my point re "transparent privacy." I believe in a state of war the President has the authority inherent in his powers as CIC to intercept enemy signals related to command/control and support of the enemy. This just makes common sense. The real problem is that we are debating issues from the era of rotary phones and mechancial tel co switches and trying apply case law. I'm open though to how long a state of war can exist and very wary of creating new terrority in the war on drugs.

We need rules of engagement that are reasonable to fight and engage the enemy in Cyberspace in the GWOT. This is where I agree Congress is intruding on the constitiutional power of the President in time of war. There is room for negotiation here between the Presiden and Congress as to what is deemed reasonable. I think this is what the Bush Administration did when it brought leaders of Congress in to discuss the issue. Amending the rules during war becomes problematic when the LL and the MSM are biting at our heels and "rooting" for the enemy at every turn. Unfortunately our normal rule making/ political policy making cycle within our government is longer now than the enemy's decision cycle.

The enemy is free to ram it where the sun doesn't shine multiple times before we can get our partisan act together. You don't run troops on the ground by committee.

And as far as the FISA being a mere formaility and rubber stamp that can be sought after the fact I would follow the link to Strata-Sphere re how this is a very risk averse, slow process in reality. Federal domestic intel agencies are very risk averse to taking action in the first place. In peacetime no harm no foul but in times of war this can be fatal as we have already witnessed. This was the principal finding of the 9/11 commissions.

Here
12.27.2005 3:58pm
Jutblogger (www):
I think Raven's Padilla point hits the issue at its heart.
This is probably why padilla's case has been so difficult for them.
12.27.2005 4:02pm
Just an Observer:
A.S.

I think it is uncontested that the four corners of FISA were breached. The administration's argument of legislative interpretation is that FISA was not violated because it contains an statutory exception that was satisfied by AUMF.

Just to be clear, suppose for purposes of analysis that the administration's interpretation is rejected (by a real court or by ourselves in this hypothetical analysis). That would put the situation under Youngstown's category 3.

Do you argue -- and do you think the administration argues -- that the inherent Article II authority is sufficient to justify the NSA activity in question?
12.27.2005 4:04pm
frankcross (mail):

Stepping back, I am struck that the defenders' claim essentially amounts to: "trust the president." That seems awfully not conservative to me. You don't have to be a libertarian to question such unchecked faith in government.

In addition, I think of conservatives as originalist and the presidential authority here is at best a "penumbra." The Constitution clearly gives Congress the power to legislate in these matters.

There is the pragmatic argument that it is necessary to protect America from terrorism. But the claims that FISA is insufficient to do so are only being asserted. Perhaps the Executive can make such a case, but the arguments so far are just hypothetical assertions. Conversely, the "trust the President" strategy, utterly unchecked, obviously raises the potential for great abuse unrelated to terrorism. Perhaps you trust George Bush, but would you have trusted John Kerry with this totally unchecked authority of warrantless surveillance?
12.27.2005 4:09pm
Ron Wright (mail):
KMAJ,

Your prose are cleaner than mine. You deliver the exact points I was trying to make.

Read my thoughts re the collective genuis and power of the Blogos over in the other thread. The answers and guidance necessarry win this war with minimal intrusions into the right of privacy can be consensually, and rapidedly forumalated in these threads that can guide our government.

After all WE ARE THE PEOPLE who empower the government to govern.
12.27.2005 4:14pm
Tom Holsinger (mail):
KMAJ,

You are absolutely correct that technological advances have "humbugged" the 1978 FISA statute, just as the unexpected political challenges of the War on Terror have. FISA is very much a creature of its times, and it is plain outdated.

The conclusion to Tod Lindberg's column in today's Washington Times squarely hits this point:

http://www.washtimes.com/op-ed/20051226-095629-5103r.htm

"... On the contrary: The administration would be a lot better off if it could get Congress more involved in legislating in some of the areas in which a new kind of conflict has imposed new kinds of legal challenges. Admittedly, Congress can be somewhat lackadaisical about exercising its own powers. But it's no solution for Congress to leave the questions to the executive branch while waiting in the wings to pounce at the first opportune moment to exploit controversy.

The administration is in hot water over domestic spying not because what it has done is unjustified in the context of hunting down terrorists nor because what it has done is unlawful, but because rather than obtain an explicit grant of legislative authority to address the ambiguity of the matter at hand, it chose to construe its authority in the interstices of existing law.

There's a difference between what's legal and what's prudent. And while the administration is always going to have partisan detractors, it does have influence over how much ammo they have to work with."
12.27.2005 4:18pm
A.S.:
I think it is uncontested that the four corners of FISA were breached. The administration's argument of legislative interpretation is that FISA was not violated because it contains an statutory exception that was satisfied by AUMF.

I think this means that the four corners of FISA were NOT breached. If the four corners contain an exception, and you meet the requirements of the exception, then you have complied with, not breached, the four corners of the statute.

Just to be clear, suppose for purposes of analysis that the administration's interpretation is rejected (by a real court or by ourselves in this hypothetical analysis). That would put the situation under Youngstown's category 3.

(I assume you mean, when you say "the administration's interpretation is rejected," the administion's interpretation of FISA is rejected, and thus a court would find that FISA was breached.) I am not sure that this would put the situation under Youngstown's category 3. Youngstown (and Jackson's concurrence) didn't analysze with a situation in which Congress talks out of two sides of its mouth. And that very well may be the case here. There are 2 issues that the AUMF plays into: (i) whether the AUMF by itself moves this from Category 2 to Category 1 (that is, what if FISA never existed - would the AUMF move the case from Category 2 to 1?), and (ii) whether the AUMF satisfies the statutory exception in FISA, such that FISA does not move the case to Category 3. But what if the the statutory exception is not satisfied; does this ipso facto mean that the AUMF could not move the case to Category 1 (again, even in the absence of FISA)? I don't think so.

Do you argue -- and do you think the administration argues -- that the inherent Article II authority is sufficient to justify the NSA activity in question?

I assume you mean under Category 3 - in the face of contradicting Congressional action. In that case, I would argue it, yes. But that's not the question I was addressing. I do not think the Administration has argued it, because it hasn't reached - and DOESN'T NEED TO REACH - that question. If the case is Category 1, as the Administration argues, it's a very easy case.
12.27.2005 4:19pm
Tom Holsinger (mail):
Observer,

You are correct. Lack of probable cause is a major issue. Probable cause is a criminal law concept which just does not fit the "war" concept. FISA can't work in wartime even if everyone involved is trying to make it work.

But they weren't. Note AJ Strata's several columns on how the FISA Court dragged its feet a great deal, to the point where even the FBI wanted to bypass it altogether. This is why I referred to judicial nit-picking rendering the 72-hour concept meaningless. If the judges don't wanna, there are no administrative solutions.
12.27.2005 4:25pm
Defending the Indefensible:
Frankcross:

Stepping back, I am struck that the defenders' claim essentially amounts to: "trust the president." That seems awfully not conservative to me. You don't have to be a libertarian to question such unchecked faith in government.

In addition, I think of conservatives as originalist and the presidential authority here is at best a "penumbra." The Constitution clearly gives Congress the power to legislate in these matters.

Conservatism is a political philosophy, but the Republican Party is a governing coalition. We should realize that the two are not coextensive. Many people with conservative tendencies will nonetheless compromise their philosophical perspective for the sake of Republican consensus, and against the possibility of losing power to a Liberal governing coalition. Hence, they will put aside their natural objection to executive overreach to support *this* President. There is no reason to believe or expect that the same people would support similar actions by a Democratic administration.
12.27.2005 4:28pm
Tom Holsinger (mail):
A.S.,

Andrew Lazarus has shown an idiosyncratic opinion of the Constitution on other boards. Some call it, "startling".
12.27.2005 4:29pm
dk35 (mail):

If we are to address this legal conundrum in any meaningful way, politics MUST be put aside. I think most can agree the WOT, and its conduct, is too important to be used as a political football.


KMAJ,

I understand your frustration, but I have to beg to differ. The "War on Terror" is not an actual war. Only Congress can declare war, and Congress has not passed any resolution declaring war. The "War on Terror" is a political slogan employed by the Republican adminstration of President George W. Bush.

I agree that taking partisan politics out of this particular debate would help matters. But part of taking partisan politics out of this is to discontinue the use of the term "War on Terror."
12.27.2005 4:31pm
The Ace:
we assume for purposes of discussion, consistent with what news accounts have reported, that the surveillance targeting was not generally justifiable under the court's probable cause standard

Who reported this and when?


------------------------------------
Stepping back, I am struck that the defenders' claim essentially amounts to: "trust the president." That seems awfully not conservative to me.

You obviously haven't read any of the comments in this thread.


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

Only Congress can declare war, and Congress has not passed any resolution declaring war. The "War on Terror" is a political slogan employed by the Republican adminstration of President George W. Bush.


SILLY IGNORANCE

Joe Biden doesn't agree with you:

I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what ... against whom we were moving, and what authority was granted to the President.

I agree that taking partisan politics out of this particular debate would help matters.

I suggest you start with yourself.
12.27.2005 4:41pm
Just an Observer:
A.S.

My own opinion is that when the applicable statutes are read together as a matter of legistative interpretation, the NSA surveillance does violate FISA. (I recognize that you and President Bush argue differently.)

I'm just trying to confirm what the situation is if they lose the point above. You, at least, would argue that the inherent Article II power is so strong that it would prevail even in this logical scenario -- category 3 under Youngstown. I read the Bush position the same way.

If you and Bush are correct on the legislative point, and AUMF is construed to authorize the activity in question, then I agree that would be category 1 under Youngstown, and no further claim of inherent power would need to be advanced.

All of this underlines the importance of the statutory-interpretation issue. But if one does not accept the position that you and Bush claim, one then confonts the more sweeping claim of inherent executive power. What is troubling about that is there is no realistic prospect that the courts can settle it.
12.27.2005 4:41pm
The Ace:
My own opinion is that when the applicable statutes are read together as a matter of legistative interpretation, the NSA surveillance does violate FISA

Can you explain what is forming this opinion?
12.27.2005 4:42pm
KMAJ (mail):
Ron Wright,

If you could link me to the other thread, I would like to read it. As I am new to this blog I am just learning my way around it.

I came across an interesting article that reveals there could be far more going on, a battle between FISA and the executive branch.

Secret court modified wiretap requests
Intervention may have led Bush to bypass panel

Government records show that the administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court's approval.

A review of Justice Department reports to Congress shows that the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than from the four previous presidential administrations combined.

(full UPI article at)
Secret court modified wiretap requests


I do not question that FISA has the authority to modify, the question to be asked is why FISA felt such an unprecedented number of modifications were necessary ? Was/is FISA operating on a pre-9/11 mindset ? That could be a fatal flaw in FISA that would threaten the security of this country and the safety of it's citizens.

To look to our Founders for guidance must be something that we very carefully evaluate. Clearly Ben Franklin's often cited quote on liberty and security did not envision nuclear, chemical or biological terrorism and the threats they present.

One might construe FISA's modifications as an attempt at usurpation of executive authority. FISA came into being because of abuses under LBJ and Nixon, as a measure to reign in executive branch powers. The NSA surveillance program is very narrowly tailored to apply only to terrorism related intelligence gathering, it is closely reviewed and the Congress is given frequent updates.

The complexity of the issue is enhanced further when one includes the overlap between criminal and intelligence/security purposes. Terrorism is a crime, and this overlap has been addressed/recognized to some degree in other rulings but still leaves a blurred delineation of constitutional authority between the co-equal branches of government.
12.27.2005 4:43pm
Just an Observer:
dk35: "The 'War on Terror' is not an actual war. Only Congress can declare war, and Congress has not passed any resolution declaring war."

The 2001 AUMF was the equivalent of a declaration of war, in the opinion of its author, Sen. Biden.
12.27.2005 4:47pm
The Ace:
Is the postion of the left that:

1. Echelon, which montors all global communications is illegal?

2. A satellite in space targeting the communications from Pakistan to a person in the United States is violating FISA/4th Amendment.

I'd like to better understand where they are coming from...
12.27.2005 4:52pm
Defending the Indefensible:
KMAJ:

One might construe FISA's modifications as an attempt at usurpation of executive authority. FISA came into being because of abuses under LBJ and Nixon, as a measure to reign in executive branch powers.

Interesting argument, but I don't think it works. If the administration felt that the FISC was not giving them the authority they were entitled to under FISA, they could have at least proceeded with an appeal. That they apparently did not do so, but simply bypassed the judiciary altogether, does not comply with even the spirit of the law.
12.27.2005 4:53pm
dk35 (mail):
The Ace,

Thanks for falling into the trap. I've used this one before with Bush supporters. Biden clearly states that AUMF is specific about what it authorizes the President to do. Since violating FISA is not on the list of specifics in AUMF, surely you then must agree that AUMF is can not be relied upon to justify Bush's illegal surveillance.

Looks as if you are the partisan here.
12.27.2005 4:54pm
A.S.:
My own opinion is that when the applicable statutes are read together as a matter of legistative interpretation, the NSA surveillance does violate FISA. (I recognize that you and President Bush argue differently.)

Well, to be clear, I really haven't come to a conclusion on whether FISA is violated. Since I think the President has the power even in a Category 3 situation, I don't think it is necessary for me to come to a conclusion on the FISA issue one way or the other. (You are obviously right that it is critical for the President, though, since DOJ doesn't address what happens in a Category 3 situation.)

All of this underlines the importance of the statutory-interpretation issue.

If you assume the President wins in a Category 1 situation but loses in a Category 3 situation, yup.

Also, can it be the case that the AUMF would not satisfy the FISA statutory exception but still would, in the absence of FISA, move the case from Category 2 to 1? Is that a plausible outcome? If so, how do you reconcile the statutes to pick a Category?

What is troubling about that is there is no realistic prospect that the courts can settle it.


I don't know about that. Notwithstanding the issue of who has standing to bring a case, I don't see any reason a court couldn't resolve the issues here in the same manner that Youngstown solved the steel seizure issues. Even if the President loses in court, he could continue the searches if Congress will in the future specifically authoirze the program. I realize - tough cases/bad law, etc. But I don't see the issue as being more difficult than Youngstown.
12.27.2005 4:58pm
The Ace:
Thanks for falling into the trap. I've used this one before with Bush supporters. Biden clearly states that AUMF is specific about what it authorizes the President to do. Since violating FISA is not on the list of specifics in AUMF, surely you then must agree that AUMF is can not be relied upon to justify Bush's illegal surveillance

First, does this in any way mean it is not a declaration of war?

Second, again, what evidence do you have FISA was violated?

Finally,

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

“Section 2. Authorization for Use of United States Armed Forces

(a) That the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 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.”


What is unclear is what your point is exactly then?
12.27.2005 4:58pm
The Ace:
Since violating FISA is not on the list of specifics in AUMF

Oh, I see, the "trap" you sprung (which only demonstrates you're not terribly familiar with the matter) is only relevant, true, factual, when you believe without evidence, FISA was violated.

Your side:
You

Other side:
President
AG
NSA General Counsel
NSA Inspector General

Gee, I wonder who is correct on the matter?
12.27.2005 5:01pm
Mary Katherine Day-Petrano (mail):
Thank you, KMAJ, "is the data mining unconstitutional." Everyone here knows I have repeatedly asserted my husband nad I have been subject to this domestic surveillance. Based on what I know first hand personally, I do not think only data mining is involved, but pfishing as well. I have been continuously barraged with pfishing since first suspecting the domestic surveillance and use of the same against ADA civil rights lawsuits my husband and I have brought.
12.27.2005 5:02pm
The Ace:
FISA, as reported during the Clinton ("illegal surveillance!!") years:

“the basic rules set by Executive Order 12333, the Foreign Intelligence Surveillance Act of 1978 and a few court decisions are as follows: NSA can intercept any communication—phone call, fax, electronic mail, etc.—as long as at least one end is in a foreign country.”

Baltimore Sun
CATCHING AMERICANS IN NSA'S NET
Listening in: Though the National Security Agency can't
target Americans, it can -- and does -- listen to everyone from
senators to lovers; NO SUCH AGENCY

Published on: December 12, 1995
Edition: FINAL
Section: NEWS
Page: 1A

When the National Security Agency trains its agents in the highly technical art of eavesdropping, they naturally need to practice. And the law gives them the right to practice on you.

NSA agents can hone their listening skills and test their equipment on the most intimate telephone calls of ordinary U.S. citizens, as long as notes and tapes are destroyed ``as soon as reasonably possible.''

``We listened to all the calls in and out of
12.27.2005 5:06pm
dk35 (mail):
Ace,

Well, since the majority of Americans don't think the President is credible, I'm not sure any list that has his name on it carries a whole lot of weight.

Also, there was an intersting article in Boston.com pointing out that the President relies on his AG and White House Counsel for legal analysis. That means Gonzales, Harriet Miers, and Ashcroft. Well, we know what conservatives think of Harriet Miers. That leaves Gonzales and Ashcroft, neither one of which had any real experience with national security law.

On the other hand, we have the actual poster of this thread, who thinks that Bush broke the law. I'll defer to his judgment on this over yours, if you don't mind.
12.27.2005 5:08pm
The Ace:
Well, we know what conservatives think of Harriet Miers. That leaves Gonzales and Ashcroft

Is Ashcroft still in government?
Why is he relevant?

On the other hand, we have the actual poster of this thread, who thinks that Bush broke the law. I'll defer to his judgment on this over yours, if you don't mind

Bully for you.
The idea that he is an "expert" is laughable.

Call me when he's: a)been an attorney for a relevant agency in any capacity b)litigated the issue c)held a security clearance and/or d)been in the US Military.
12.27.2005 5:10pm
The Ace:
That leaves Gonzales and Ashcroft, neither one of which had any real experience with national security law.


So what about the NSA General Counsel?
There are no other other staff attorney's in DOJ with FISA expertese?
12.27.2005 5:14pm
KMAJ (mail):
dk35,

Though you seek to agree on removing politics from the discussion, you insert it when you label the WOT a republican and Bush political ploy.

You put forth:

The "War on Terror" is not an actual war. Only Congress can declare war, and Congress has not passed any resolution declaring war.

As a previous poster pointed out, Joe Biden disagrees with your assessment, equating a declaration of war and AUMF as one and the same.

But to take this one step further, history does not support your attempt to present this as an argument. The Congress has only declared war 11 times in 5 wars times in the history of this country: the War of 1812, the Mexican-American War, the Spanish-American War, WWI (2 declarations) and WWII (6 declarations).

Contrarily, the US has engaged in 'hundreds of instances in which the United States has used its armed forces abroad in situations of military conflict or potential conflict or for other than normal peacetime purposes.'

Instances of Use of United States Armed Forces Abroad, 1798 - 2004

Simply because Terror is not a governmental entity, nor have geographical borders, does not make it any less a 'war' except in the semantic sense. It only makes it an 'unconventional' war, leaving the real argument over whether it is a war that should be fought, but that is a different debate topic.
12.27.2005 5:14pm
Just an Observer:
The Ace,

You asked me to explain why I think that when the applicable statutes are read together, the NSA surveillance violates FISA.

Without repeating all that has been said on these threads over the past 10 days, I will summarize as follows.

1) Professor Kerr's original analyis shows how the plain reading of the FISA prohibits this activity.

2) The administration's claim that FISA's requirements were superceded by the subsequent passage of the AUMF does not succeed. It is too far a stretch to imply from the very general language authorizing "force" in AUMF was meant to override the very specific language in FISA.

3) There is a much more direct explanation of how FISA was meant to be interpreted in case of a future state if war, which was stated explicitly in Section 1811 when FISA was enacted. That provision allowed for warrantless surveillance for only 15 days after a declaration of war, to give the administration and congress time to enact more permissive legislation if they chose. AG Gonzales said last week that the administration sought no such expanded authority because Congress seemed reluctant to grant it.

The only quibble with Section 1811 is that it is triggered by a declaration of war. The AUMF may or may not be deemed the equivalent of a declaration of war. (Its author says it was, and the Hamdi ruling was consistent with that view.) It may be something less. It certainly is nothing more expansive, and it is unreasonable to say that it grants more power to the executive that it would have if it had included the magic three words.
12.27.2005 5:15pm
dk35 (mail):

Call me when he's: a)been an attorney for a relevant agency in any capacity


Um, in looking at Orin's CV, I notice that he worked for the DOJ, Criminal Division in their Computer Crime and IP Section. Seems relevant, in my opinion, in figuring out if someone uses technology to commit a crime.
12.27.2005 5:16pm
Andrew J. Lazarus (mail):
Holsinger: You left out the part where the Court said "national security interests should not be grounds 'to jettison the Fourth Amendment requirements' protecting the rights of Americans against undue searches." Orin Kerr's original post does a much better job than I can of explaining at the legal level why (1) the Bush program is illegal under FISA and (2) FISA is constitutional.

A.S.: Let's take a concrete bombing example. Congress has prohibited the deployment of chemical weapons. Can the President, using his Article II authority, deploy chemical weapons? That's much more interesting and on point than your silly questions about Congress descending to the level of tactics. Incidentally, I do think Congress could do that, and they have made pests of themselves in the past, but they aren't doing so now and there's no reasonable likelihood that they will.

There's considerable honesty in the statement that Article II allows for an unrestrained executive. Pity that just isn't the American Way.
12.27.2005 5:17pm
Mary Katherine Day-Petrano (mail):
Ace -- I am not "left." To the contrary, I am disabled, and also Republican. Emotional appeals are a very weak basis to try to prevail with your viewpoint.

I was not saying all searches by ECHELON are illegal. Only that in my opinion, there are no adequate safeguards in place to more narrowly tailor them as to context, say the territorial reach of navigable waters I mentioned. I think that asnwer both your 1st and 2nd question.

Your positions are extreme. Did you perchance take any admiralty or maritime law?
12.27.2005 5:19pm
The Ace:
Professor Kerr's original analyis shows how the plain reading of the FISA prohibits this activity.


Irrelevant since he's speculating on matters of which he has little knowledge

The administration's claim that FISA's requirements were superceded by the subsequent passage of the AUMF does not succeed

I don't agree with this point. The Administration has said repeatedly it has followed the law.

AG Gonzales said last week that the administration sought no such expanded authority because Congress seemed reluctant to grant it.

No, he said it would jeopardize the existence of the program. Quite different from what you're saying.

Can you answer the other ?'s (thanks for sharing your views though I am trying to understand what those on the left are actually arguing)
1. Is Echelon, which montors all global communications is illegal?

2. A satellite in space targeting the communications from Pakistan to a person in the United States is violating FISA/4th Amendment?
12.27.2005 5:20pm
Bryan DB:
Ace:
You forgot another handy quote from that story:
"Employees attest to a law-abiding culture in [the 1990s] that strongly discourages illegal excursions into domestic eavesdropping.
12.27.2005 5:20pm
The Ace:
Just an Observer:

This was in the NYT original piece:
The agency, they said, still seeks warrants to monitor entirely domestic communications.


So it is then your contention that when targeting a non-us person communicating to someone in the US is an illegal act under FISA?
12.27.2005 5:22pm
Mark Buehner (mail) (www):
I don't say it. This is a red herring. The issue is can Congress restrict this power. Silberman said it could not. He is wrong.

This is absurd. How would this example change if Congress passed a law restricting the Presidents ability to conduct purely overseas intelligence? Obviously the President's Article II powers would override such a law. Congress could cut off funding to the intelligence agency, but thats the extent of its powers right? The only question is if the intelligence is half foriegn based and half domestic, does the president's constitutional authority still reign supreme.
12.27.2005 5:23pm
Mary Katherine Day-Petrano (mail):
Ace:

Your side:
You

Other side:
President
AG
NSA General Counsel
NSA Inspector General

Gee, I wonder who is correct on the matter?

Wasn't it Chief Justice Roberts in his confirmation hearings who said the best thing about our Judiciary is the fact one little person can come before the Court with the force of entire Government arrayed on the other side and have Justice?

So how does the counting of numbers on each side prove anything?
12.27.2005 5:23pm
dk35 (mail):
KMAJ,

Regardless of whether Biden thought that the AUMF was a declaration of war, that does diminish the fact the Bush's people coined the phrase "War on Terror" as a political catchphrase. The phrase "War on Terror" can be likened less to the other actions you describe than to the "War on Drugs." As much as all of us, despite our political affiliations, want to protect this country against the negative health and safety impacts of drugs, no one seriously thinks that the fact that we have declared a "War on Drugs" gives the President permission to violate the law. I would say the same method of analysis applies here.
12.27.2005 5:24pm
Bill_cc_1 (www):
The reality is the parameters changed with the War on Terror and the AUMF. Historically, the War on Terror is vastly different than any other war this country has engaged in. The constructs that are the basis for past wars do not easily transfer to the WOT.

The War on Terror is different than any war we've fought. But the Cold War was different from any other war. The same for WWI and WWII -- vastly different in scale and in consequences for the people around the world.

There are all kinds of differences between all these situations.

Just to pull out one: International terrorism didn't begin on Sept. 11, and in fact was occurring during the Cold War. So the WOT and the Cold War overlapped, to some extent. It's also hard to imagine that the WOT has a definite ending -- terrorism doesn't require a large number of people to be carried out, and it's hard to imagine we will reduce the ranks of Islamic terrorism to a sufficient degree to declare victory.

I appreciate the point that the WOT is different from anything else. And I tend to believe we should grant the government the power to do the kind of large-scale sifting of communications to sniff out this particular threat. I'm not sure, based on the arguments in several threads here, that the President has that authority through legal means, currently. And I'm worried about some of the theories of expansive presidential power under apparent consideration, in part because I think those "wartime" powers are not likely to have a historical boundary, the way other wars do.

One final point. Among the "differences" between the WOT and events like WWI, WWII, and the Cold War, is the possibility that the WOT is smaller in scale than some or all of those events. That isn't clear yet, and it probably depends on whether terrorists get ahold of some of the nastier varieties of WMDs (that is to say, probably not just chemical weapons, but nuclear weapons). Approximately 62 million people died in WWII, including 37 million civilians. About 100,000 U.S. soldiers died in the various proxy-wars that made up the Cold War, and deaths in those countries were vastly higher (a recent estimate suggests 1 million Vietnamese combatants and 4 million civilians died in the Vietnam war).

Aside from our actual losses in the Cold War, there was the ongoing threat of nuclear annihilation. I took a few classes on war strategy back in those days while I was in grad school, and I can tell you I'm not convinced that "mutually assured destruction" was as strong an impediment to nuclear attack as we are usually led to believe. Our force structure (and even moreso the Soviet force structure) had serious flaws that in some ways rewarded one side for striking first.

What I'm saying, basically, is that the WOT being "different" doesn't necessarily mean more dangerous. It might be *very* dangerous, and the intelligence powers we're discussing may be particularly important. But it's not an ahistorical threat, necessarily -- that is, we've been in tight spots before and we've dealt with it.

I think the natural course is to use new intelligence gathering technology, but to build some checks and balances into it. It's dangerous for our democratic institutions to have that power reside solely in the executive branch. Some sort of judicial oversight is called for.
12.27.2005 5:24pm
The Ace:
Mary Katherine Day-Petrano,

I'm sorry you feel I lumped you in with "the left"
I will re-read what you wrote.

I said that b/c it's clear some here are Dems and arguing from that side.
I'm just trying to get a handle on it all.
----------------------
Bryan DB,
The Baltimore Sun requires a payment to get the full text of the article I posted but I didn't pay so it cut off...
12.27.2005 5:25pm
The Ace:
I was not saying all searches by ECHELON are illegal. Only that in my opinion, there are no adequate safeguards in place to more narrowly tailor them as to context, say the territorial reach of navigable waters I mentioned. I think that asnwer both your 1st and 2nd question.


Ok, this is a valid point.
But, considering it monitors/captures all communications for analysis without a warrant, shouldn't Congress do something about this?
Why do they keep funding it?
12.27.2005 5:28pm
Mark Buehner (mail) (www):
Congress has prohibited the deployment of chemical weapons. Can the President, using his Article II authority, deploy chemical weapons?

Of course he can. Congress's recourse is to cut off funding for maintaining and produciing chemical weapons. Let us not forget that this is the executive we have entrusted with a nuclear button and the authority to destroy the planet over the last 50 years. Even with the survival of the Earth on the line the President had no obligation (or chance) to consult Congress in the case of nuclear war. As so many have pointed out it is absurd to think the President has the inherint authority to murder our enemies but not to listen to their communications.
12.27.2005 5:29pm
The Ace:
dk35,
It's definately fair to say "The War on Drugs" is a catch phrase.
But, there was no official joint resolution declaring it so.
12.27.2005 5:30pm
KMAJ (mail):
Ace and dk, I think you are misusing Prof. Kerr's analysis. Within his long dissertation, he states frequently that there are many unknowns involved that could affect the final outcome of his opinion. He does not give his opinion as a definitve, but as an observation on only what he knows, with the qualifiers about the unknown.

Re: AUMF - the application of gathering intelligence is an integral part of using military force, for any one to argue otherwise is simply enagaging in a rhetorical debate of semantics. THE AUMF did not specify many different facets of military action, i.e. smart bombs, land based, air based or sea based bombing, intelligence for targeting, satelite intelligence for enemy movements. The argument over AUMF is specious, at best, and politically driven, not legally.
12.27.2005 5:33pm
The Ace:
He does not give his opinion as a definitve, but as an observation on only what he knows, with the qualifiers about the unknown.

Yes KMAJ, which is why I'm a bit taken aback by people saying they agree with his analysis that it is illegal...
12.27.2005 5:36pm
Tom Holsinger (mail):
dk35,

There is often a difference between what people say they intended, and what they actually did. The post-9/11 AUMF gives the President every applicable domestic war power save those reserved by statute for formal declarations of war. The latter statutes generally concern property and finance, but some are pretty breath-taking in terms of personal liberties. You wouldn't like 'em, trust me.

KMAJ,

You really should check out the columns by AJ Strata I linked to. The D.C. Circuit's 2002 rebuke of the FISA Court didn't stop the latter's shennanigans.

Short Form of FISA: no warrant required for intercepts of "foreign communications", period. The definitions of "foreign" and "domestic" communications are based on location of a communication's destination and its point of inception, not the identities of the communicants.

If either the inception or destination of a communication is outside the U.S., it's a foreign communication and no warrant is ever required to intercept &read it. If both are inside the U.S., it's a domestic communication and a warrant is presumptively required to read it, subject to many exceptions.

There are tricky points as to the location where the interception takes place (generally must be outside the U.S. to avoid a warrant requirement), whether a particular phone number is targeted for surveillance, and whether a particular person with a legal right to resident in the U.S. (and is physically present in the U.S. at the time) is targeted.

There is also an issue about the President's war powers - FISA does not seem to apply during war when foreign agents are targeted (as opposed to FISA applying but so does one of its exceptions to the warrant presumption).

And there is a distinction between "wiretapping" aka bugging of a specific phone, and "interception", which is really "surveillance" of umpteen zillion almost entirely innocuous communications and the sifting of those by computer program "search engines" to weed the umpteen zillion of no interest and focus on the few of special interest. Surveillance is not subject to any warrant requirement even under FISA, especially as it is often necessary to do "machine scanning" aka reading of digital communications just to determine whether they are "foreign" or "domestic"

Among FISA's exceptions to the warrant requirement presumption for domestic communications are innocuous ones such as those for foreign citizens who are also employees of their foreign governments (the 3rd secretary of the Chinese embassy, etc.), and ones pertinent to this discussion - foreign nationals with otherwise valid American visas who are believed to be associated with terrorist groups. The Bush administration contends the latter's violation of the conditions of their visas, by their association with terrorist groups, activates a FISA exception to the warrant requirement for domestic communications. Some people, notably FISA judges, contend that the Executive Branch must present admissible evidence that an individual with a duly issued green card is associated with a terrorist group to establish that an exception to the warrant requirement is required.
12.27.2005 5:36pm
Mary Katherine Day-Petrano (mail):
Ace, another thing -- why are you making personal attacks on everyone, like Prof. Kerr who is really providing the highest of public service by opening discussion for the best of the free exchange of ideas under the First Amendment? And I don't even know Prof. Kerr, since I graduated from law school so many years ago.

And I have to observe, I am struck by what appears to be your failure to read the Hamdi opinion yourself, firsthand. Clearly, Justice O'Connor draws the distinction betweem CIC exercising war powers on foreign soil against real terrorists/enemies of America vs. much more removed contexts which "unravel" the logic. This is at the core of the brouhaha over the domestic surveillance in the US of US citizens for what appears to be illegal and civil rights abusive activities.
12.27.2005 5:38pm
The Ace:
Um, in looking at Orin's CV, I notice that he worked for the DOJ, Criminal Division in their Computer Crime and IP Section

Fair enough dk.
He gets the benefit of the doubt.
12.27.2005 5:39pm
Mary Katherine Day-Petrano (mail):
Ac -- it is not that I "feel" you lumped me in with the "left." You indicated you did by paraphrasing and then mischaracterizing what I said. But thank you for the apology, that's fair.

But I still disagree with your entire conclusion, that the domestic surveillance is not harmful nor illegal, and therefore there's nothing to worry about.
12.27.2005 5:40pm
minnie:
Orin Kerr:

"I'm stuck (fighting my way through) enjoying reading a set of exams right now, but I hope to write another analysis sometime this week."

Very funny :)
12.29.2005 8:15pm
minnie:
Mary Katherine: That the domestic surveillance in question will be shown to be harmful, illegal, and something about which to worry is what I expect to happen. I had to laugh when reading Armando's post in the Daily Kos (which Orin linked to in his introduction) when Armando quotes Cass Sunstein's reference to the present brohaha as a "libertarian panic." Hardly. I think Mr. Sunstein's detector to see which way the wind is blowing needs oiling.
12.29.2005 8:35pm