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Article on NSA Surveillance Law:
Here is an interesting pre-Patriot Act student note on the law governing NSA surveillance: Lawrence D. Sloan, Note, ECHELON and the Legal Restraints on Signals Intelligence: A Need For Reevaluation, 50 Duke L.J. 1467 (2001). I gave it a quick skim, and it seems to present a decent background for some of the issues surrounding FISA and NSA surveillance. Thanks to reader Shawn Bjorklund for the link.
Mary Katherine Day-Petrano (mail):
I read that article, as well as a lot of other research on this subject, about which I previously posted on this blog, in the context of the voice-recognition inaccuracy problem causing mislabeling of "terrorist threats" as well as The Vessel Mistress surveillance platform, and Volokh suddenly had a "hardware failure" that lasted a couple days resulting in censorship of some 150-200 posts on this NSA/ECHELON/domestic surveillance subject -- for which it appears several bloggers question whether Volokh was in fact really offline due to the Patriot Act. When Volokh came back online, a disclaimer thread about my posts was posted.

Incredible -- especially for blog posts discussing NSA/ECHELON/domestic surveillance information available to any member of the public who is not afraid of a little research work!
1.3.2006 1:19am
Master Shake:
Orin, we'd love your updated take on the comments in the previous NSA post.
1.3.2006 1:19am
Polaris (mail):
I note that Echelon was held to be legal and congress was informed of it via congressional oversight.

It's just one more example of what I've said all along. De facto FISA has never applied to the NSA with regard to foreign communications.

-Polaris
1.3.2006 1:31am
OrinKerr:
Master Shake,

Which of the 400+ comments did you have in mind? I hope you don't expect me to comment on all of them!

Oh, and Polaris -- I realize you're not a lawyer, but please realize that you are speaking inaccurately when you say that "ECHELON was held to be legal." In the legal system, "held to be legal" means "held to be legal by a Court." As far as I know, no court has ever evaluated whether ECHELON surveillance was legal.
1.3.2006 2:19am
Polaris (mail):
Orin,

The program was reviewed by congress and (to my knowlege) by FISA. While no court case applied to it, that's a little unrealistic given the nature of the program, no?

At the very least, FISA was aware of it (and they certainly were aware of Able Danger which was similiar).

As a reasonable person, how does that not de facto translate into "it has held to be legal"??

-Polaris
1.3.2006 2:31am
Polaris (mail):
Orin,

Let me put it another way? Did a court (such as FISA) hold Echelon to be illegal? Did congress?

[You can't say that they didn't know because we both know that they did.] {BTW, this was during the Clinton administration so this isn't a GOP/Dem thing.}

That seems to say that it was determined to be legal to me.

-Polaris
1.3.2006 2:34am
Polaris (mail):
Sorry for a triple, but let me put it yet another way.

If Echelon were really illegal, do you think the GOP would have hesitated a nanosecond to impeach Clinton over this program? Honestly?

Consider that Clinton *was* impeached for lying about having sex in the Oval Office. [I was no fan of Clinton, but *no* POTUS should be impeached for trivial reasons no matter how much you dislike him or her.]

-Polaris
1.3.2006 2:44am
Master Shake:
Orin-

Okay, how about only the even numbered posts. That should cut it down.

Thanks,
Shake-zula
1.3.2006 3:46am
ron (mail):
Professor Kerr: I again reviewed the holding in In re Sealed Case and wanted to ask if the following is a plausible reading of the "inherent authority" portions of that opinion.

First the text:

"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." At 48-49.

First sentence: Apparently deciding that a Youngstown analysis does not apply, it appears to me that by inherent authority, the court is merely saying congress may not interfere with the executive's authority to conduct warrantless searches to obtain foreign intelligence information.

Second sentence: It does not think that inherent authority wholly vitiates 4th amendment rights–some reasonable form of procedure similar to a classic warrant must still exist.

Such a reading is buttressed by this language found on page 51:

"That is not to say that we should be prepared to jettison Fourth Amendment requirements in the interest of national security. Rather, assuming arguendo that FISA orders are not Fourth Amendment warrants, the question becomes, are the searches constitutionally reasonable."

And at 56:

"Even without taking into account the President's inherent authority to conduct warrantless foreign intelligence surveillance, we think that the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close."

Is it fair to say that the 4th amendment applies and that if an executive totally side steps FISA's requirements, he or she violates the 4th amendment?
1.3.2006 4:21am
jukeboxgrad (mail):
Orin,

"Which of the 400+ comments did you have in mind? I hope you don't expect me to comment on all of them!"

I imagine you wouldn't be surprised to discover that many of the same ideas appear over and over again. Therefore it's more like 40 messages that got repeated about a dozen times. (Some people claim they have twenty years of work experience, when in fact they only have six months of experience that was repeated 40 times.)

I realize it's still a ton of work just to read it all (I know exactly how much work that is, from personal experience).
1.3.2006 4:41am
Defending the Indefensible:
Prof. Kerr,

I recommend in particular that you read the postings by jukeboxgrad.
1.3.2006 5:17am
Master Shake:

Prof. Kerr,

I recommend in particular that you read the postings by jukeboxgrad.
Agreed with DoI.
1.3.2006 7:44am
Master Shake:
(I meant DtI, not Dept. of the Interior)
1.3.2006 7:55am
Defending the Indefensible:
Shake,

I was just discussing with my wife the other day that Gail Norton (Secretary of Interior) is just about the most qualified person in the entire administration, FWIW....
1.3.2006 9:14am
Defending the Indefensible:
Of course, it would help if I spelled her first name correctly. It's Gale.
1.3.2006 9:16am
Anderson (mail) (www):
Ron, IIRC, the portion you quote is not the "holding." It's dicta.

If you're a lawyer, please ignore what follows ... dicta is that portion of an opinion where the court opines, speculates, "takes for granted," or does anything else not necessary to its holding.

Polaris, my favorite anecdote from law school was the bright young lawyer who, 1st day on the job, was told by his boss to go find out the law on such and such. He returned with a big stack of statute books and wrote a memo, which the boss returned with the comment, "Great, now go find the cases that say what these statutes mean."

Metaphysics aside, the law is what the courts say it is.
1.3.2006 9:35am
jukeboxgrad (mail):
defending, thanks for the endorsement. The feeling is mutual.

master, thanks again.
1.3.2006 10:22am
ficus:
All,

Anderson said:

Metaphysics aside, the law is what the courts say it is.

This is true enough so far as it goes (IANAL, by the way), but where it goes is to that part of the law that is litigated. In intra-governmental contests of power, there is still law, but often no litigation. The two political branches use law to support claims of power, and as a basis for appealing to or denouncing each other, and ultimately there is no arbiter, or the arbiter is the electorate.

Lawyers are also needed for law battles of this kind, but their role is not the same. Essentially, they are advisers to politicians, and sometimes their opinions become part of the public debate. Even if their arguments would be convincing to judges, since they are not talking to judges, it may not make any difference.

I would like to know how the legal community addresses this problem. What I hear often is something like this: "if SCOTUS ever decides this, they will say ...." That is not much different from saying, "The correct answer is ...." It leaves open the question of the role of law, and lawyers, in such a controversy.
1.3.2006 11:12am
OrinKerr:
Jukeboxgrad,

I just read through the tail end of that comment thread, and I thought your comments were terrific. Very strong stuff.

Master Shake,

In the end, I find myself somewhere akin to where I started out. It looks like the program probably violated FISA, although we can't know for sure until we find out technical details we don't know.

I thought the Polaris contributions were interesting, but Polaris seems to be assuming that the latest program is a continuation of pre-9/11 monitoring practices. I doubt that; what made the NYT story a big story is that the NSA had allegedly gone from monitoring outside the U.S. to monitoring inside the U.S. Polaris seems to think that this was just spin: the NYT has it wrong, and the latest program is the same as the pre-9/11 program. However, Polaris obviously has no reason to know that; he's just guessing.

Further, as a guess, it seems like a quirky guess. If this program were really the same as the pre-9/11 monitoring, why wouldn't the Administration say so? Why would the President ask the NYT not to print the story about the new program?

So my own guess -- and of course, this is just a guess -- is that this new program was some kind of significant expansion over pre-9/11 monitoring, and one that was undertaken with the understanding that the AUMF and Article II were needed to ensure the legality of the program. We can't be sure without knowing more details, but that's my still-tentative sense of things.
1.3.2006 11:26am
Just an Observer:
Prof. Kerr,

It does seem that at least part of what was novel about the post-9/11 NSA program was that it began making intercepts at communications switches inside the United States. That is what the NYT reported in its 12/24 story, and certainly would change the legal posture under FISA's 1801 (f)(2).

What I don't think we know is what the practical effect of such a change was.

If one believes the most extreme description of ECHELON and its progeny before 9/11, the NSA already was capturing every bit of every international communication without tapping any switch in the United States.

I suspect that such an extreme description of NSA's historical capabilites may be overstated. There obviously was some practical advantange in tapping directly into U.S.-based communications switches, or Bush would not have risked violating FISA to do so. The new NSA progam achieves something for its users that was not being achieved before.
1.3.2006 12:02pm
Anderson (mail) (www):
Ficus, I have no gov't experience, so I can't really answer your question.

One thing I do know, however, is that in evaluating the legality of a proposed action, the gov't lawyers need to look at it like a judge would: from all sides, considering the pros and the cons. The memo for the gov't client should read more like a judicial decision and less like an advocate's brief.

That's what struck most responsible attorneys about the "torture memos," their obvious one-sidedness. Like the notorious discussion of the Executive's C-in-C authority that didn't even mention Youngstown. That would just about fail a Con Law exam answer, and yet, that's the quality of advice that was being offered.
1.3.2006 12:20pm
John Lederer (mail):
The big chnages between 1985 and today in overseas communications are:

(1) Digital instead of analog
(2) Fiber optic cable instead of radio
(3) Packet intead of circuit
(4) Leased bandwidth instead of common carrier
(5) Leaps in the ability to receive and disciminate among signals and to separate commingled traffic.
(7) Filtering technology
(8) Broader spectrum use -- moving towarsd mixed use of light/infrared/microwave/UHF/VHF/ etc.

All of those have implications for:

(1) Changes from an Echelon type approach of radio ground stations covering teh world
(2) Acquistion technology -- in general a movement from devices located in propinquity to the signal to detection of subtle secondary signals -- e.g., picking up a mcirowave beam from a satellite not within the beam, or a voice by observing an exterior window and analyzing the vibration)
(3) Desire for comprehensive "vacuuming" of everything and then filtering it
(4) Legal definitions ( e.g. a non-common carrier submarine cable may carry neither "radio" nor "wire" communications in FISA's defintions)
(5) Necessity of acquisition to determine where the signal goes (transmission media carry hetereogenuous packets --can't follow the wires or predict the circuits)
(6) Ease of redirecting, copying, and altering transmissions.


(6)
1.3.2006 2:10pm
John Lederer (mail):
Sorry for the typos above.
1.3.2006 2:13pm
Polaris (mail):
Orin,

No, what is revolutionary about this program is that communications that originate in the US, are now in some cases being targeted.

However, if you read FISA and USSID 18 carefully, you will find no distinction is made between communications that originate inside the US vice those that do not as long as one end is outside the US.

Thus the program may well be revolutionary and still not break any legal new ground. I am virtually certain given what the NYTimes has actually SAID (not alleged) is what happened. I also note that in no case it is alleged that intercepts took place inside the US...merely that US switches are used. It's a masterful work of misdirection.

In short, with all due respect Orin, you don't know enough to have an informed opinion about whether this violates FISA or not. No one here is (although with all due respect I probably come closer than most). That's why we should all be fair and wait for the congressional intelligence oversight committee to have it's say. It does have the information needed to make that determination.

-Polaris
1.3.2006 2:30pm
corngrower:
All you with degrees in law can continue to the fine minutia of the law.

Fact is, the law is written, enacted, and, enforced by politicians.

Thats it....You all can continue the debate. But. If you quote a single elected person that has 5 secounds of air time without offering a bill to fix your beef. Stop it!

This is a law created by politicians and if a fix is needed...Is with even a single politicians with the moxy to lose ALL of whatever clout they poses at this time.
1.3.2006 2:41pm
Master Shake:

In short, with all due respect Orin, you don't know enough to have an informed opinion about whether this violates FISA or not. No one here is (although with all due respect I probably come closer than most).

Orin, this is basically what you missed in the 400+ posts.
1.3.2006 2:46pm
Polaris (mail):
Master Shake,

Am I wrong? Do you have the technical background, clearence, and information to definately state that FISA was violated?

Corngrower is correct. Laws and statutes are written in the end by politicians. I will tell you up front and right now that President Bush will be exonerated. No politician in an election year is going to chatise POTUS for trying to protect the country after 9/11. That's just political reality. I do hope that FISA gets a complete overhaul because it neither protects our national security NOR our civil liberties....and if you accept what a lot here want to (which I do not), then it would seem to put those that gather essential intelligence in needless legal jeapordy.

However, I have a pretty good notion what is being hidden, and the congressional intelligence comittee will have the full info. I strongly suggest you wait for them to fulfill their oversight duties.

-Polaris
1.3.2006 3:11pm
Unnamed Co-Conspirator:
Aren't some of the lawyers here forgetting that the courts only get to make a determination of "what the law is" in the context of a case or controversy over which the courts have jurisdiction? And isn't one of the justiciability hurdles standing? I can't imagine that anyone will consider the ACLU acting on its own as a satisfactory proxy for a real plaintiff. So, what kind of plaintiff would have standing? Someone who's being held by the government after having his communications intercepted could certainly be such a plaintiff. Well, there's one that we've heard of, but does anyone really think the would-be bomber of the Brooklyn Bridge will prevail in his lawsuit against the President? And even if we see a case where the plaintiff is a person who the government arrests and holds using intercept-produced evidence, mistakenly believing him to be aiding terrorists, the Courts aren't about to order the president to cease the electronic intercept program. Perhaps if the plaintiff is a surveillance subject chosen for his political views rather than his alleged terrorist ties, a Court might tell us what we already know -- that the President can't use the NSA for the purpose of spying on his political adversaries. But until someone makes a credible case that the intercepts are such an abuse, and not merely that they amount to a tool that might be so abused, the Courts aren't going to intrude on what is essentially the turf of the Congress and the President (protecting national security). Where the line divides presidential power and Congressional power in this context will be resolved by the political process, not the courts.
1.3.2006 4:12pm
Bryan DB:
Unnamed CC:
The criteria for standing is only that you have to have been subjected to surveillance or that information about you, derived from monitoring, has been misused or disclosed without a warrant or court order.
No need for being held or arrested.
1.3.2006 4:23pm
Polaris (mail):
BryanDB,

As a practical matter, you'd have to know that, prove that, and then get a court to issue discovery of TS/SCI information. Not. Gonna. Happen. That's assuming that said person even wants to go to court in the first place (which many would not).

-Polaris
1.3.2006 4:43pm
Bryan DB:
Polaris,
UCC was only interested in the issue of standing. Given the leaks that have happened so far, I'm guessing it wouldn't be too hard to "know" or "prove" the surveillance. U.S. v Reynolds makes clear that discovery is not automatically barred, even when secrets are involved.
1.3.2006 5:03pm
OrinKerr:
Polaris writes:

"No, what is revolutionary about this program is that communications that originate in the US, are now in some cases being targeted."

Polaris, are you saying that pre 9/11, the NSA didn't monitor any targeted communications that originated in the U.S. without a warrant? That would seem quite astonishing to me.
1.3.2006 5:16pm
Polaris (mail):
Bryan,

To my knowledge, the courts have never authorized discovery on information protected by Title 18 US Code. As a PRACTICAL matter, such a case will never be litigated (at least not sucessfully).

-Polaris
1.3.2006 5:16pm
Polaris (mail):
Orin,

I can't speak for all NSA programs and even if I could, I wouldn't because it would be classifed.

However, I can tell you from my personal experience (and those of my NSA coworkers at the time), that communications from the US were absolutely not targeted except on very specific directions from DIRNSA and (from what I was given to understand) under legal sanction (which I always assumed to be a warrent).

[This may have changed since I left and data mining was always a grey area, but you will find what I said is actually consistant with even what the NYTimes actually said in it's original article.]

As a *practical* matter, USSID 18 was read far more expansively for calls going out of the US than calls going in it.

-Polaris
1.3.2006 5:21pm
Polaris (mail):
Orin,

More more thing; that said, you will find that neither USSID 18 nor FISA makes any distinction between communications *from* the US and those *to* it (as long as one end is outside the US).

-Polaris
1.3.2006 5:23pm
jukeboxgrad (mail):
Prof. Kerr,

(I guess I'll call you that since others do. Sorry for my earlier careless informality.)

I have a lot of respect for you. Your kind words mean a lot to me. Thanks.
1.3.2006 6:02pm
Unnamed Co-Conspirator:
No, Bryan, the issue was whether a court would ever see a justiciable case or controversy on this issue. I mentioned standing because it is a very practical impediment to what would be, where this issue is concerned, an extraordinarily ill-advised intrusion by the Courts into the making and execution of national security policy. The only likely plaintiff with standing would be one who had been arrested or detained (as Polaris pointed out, no one else would know whether he had been the subject of surveillance, much less whether information obtained has been used or disclosed), and if there had been cause for the arrest or detention, or even if it had been the result of a good faith mistake, then no Court would presume to tell the President that he doesn't have the power to monitor the types of communications the administration has identified as the subject of the surveillance (well, there are probably one or two judges who might presume to do so, but they would be promptly reversed by their betters). The only situation in which a Court order curtailing the surveillance is at all likely is the use of the surveillance for Nixonian spying on political enemies, and given that both Democrats and Republicans in Congress are involved in oversight, that's very unlikely, don't you think?

No court is going to give a break to someone detained on evidence that he is a member of or has aided a terrorist enemy merely because the court finds that the President stepped on Congress' toes in the surveillance that produced the evidence. No court is going to step between Congress and the President and tell each of them where the Constitution draws the line that divides their respective powers. Youngstown Co. was easy by comparison, because in that case it was the President who identified the need for the action, in the absense of any finding by Congress, and the action taken bore so little resemblance to a military action. In contrast, the 2001 joint resolution authorizing force is a clear acknowledgment by Congress of a foreign threat, and the surveillance program is clearly a response to that threat, and one which seems to be more like military intelligence gathering than law enforcement activity. If Congress thinks that the President is going beyond his authority, it can defund the program or, more likely, adopt specific limitations in light of the actual program details. Only in the most fevered dreams of the President's opponents on the left does he attempt to directly confront Congress on the limits of his authority.
1.3.2006 6:08pm
Noah Klein (mail):
Unnamed CC:

The Youngstown case is extremely analagous to the current situation, because it is a case of a president taking an action that violated both the Constitution and U.S. law in an effort further his warmaking ability. How is this any different than the current case?
Secondly, your conclusion that no court would find for a plaintiff that has been detained or arrested is flat out wrong. The evidence of this are the several cases where courts have overturned the convictions of murderers, rapists and so on. Do you believe that they overturned the convictions of these people because they wanted to free them? I would suggest that this is not the case, but instead they did to ensure that innocents would not be subjected to illegal actions by the Executive. Once again, this will be the case if Iyman Farah or other convicted terrorists have standing and demonstrate that the adminstration violated the law. Thank G-d that in the case of Iyman Farah, his conviction will not be overturned, because he confessed. But his lawyers have said they will file civil suit.
1.3.2006 6:22pm
Just an Observer:
Unnamed Co-Conspirator: "[T]he issue was whether a court would ever see a justiciable case or controversy on this issue. I mentioned standing because it is a very practical impediment ..."

The contours of the most (theoretically) straigtforward cases are defined in the FISA statute itself. It defines both criminal and civil remedies for government violations of the act. Each path presents peculiar problems.

The criminal offense is defined in 50 USC 1809(a):


(a) Prohibited activities

A person is guilty of an offense if he intentionally—

(1) engages in electronic surveillance under color of law except as authorized by statute; or

(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.


The problem with the criminal scenario is that Atty. Gen. Gonzales already has declared, as a matter of law, that the NSA program does not violate FISA. So there could be no prosecution by the DOJ. And without prosecution, there would be no way that a court could rule on Gonzales' controversial assertion.

Also, the President has announced that it was he who authorized the activity. So absent a far-fetched impeachment action, there seems to be no prospect that he would be held accountable for any legal violations.

The civil remedy is defined in 50 USC 1810:


An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation ...


There are two problems with that scenario.

The first is that the aggrieved party must basically be innocent -- neither a "foreign power" such as an AQ-affiliated group or "an agent of a foreign power." That pretty much rules out any of the terror-related defendants already identified and mostly in prison, if they in fact were touched by this surveillance.

The second problem is the Catch-22 of standing already identified: Assuming that such innocent victims exist, how do they know who they are?

FISA and the President's unilateral action have created a situation where innocent victims, if any, have no practical remedy.

It is a case where the law so far seems to have failed. There remains the prospect of congressional oversight, which could shake something loose politically. But it is still difficult to see how courts could decide the matters of law that are contested in public discourse today.
1.3.2006 7:07pm
Karl (mail):
Prof. Kerr wrote:


I thought the Polaris contributions were interesting, but Polaris seems to be assuming that the latest program is a continuation of pre-9/11 monitoring practices. I doubt that; what made the NYT story a big story is that the NSA had allegedly gone from monitoring outside the U.S. to monitoring inside the U.S. Polaris seems to think that this was just spin: the NYT has it wrong, and the latest program is the same as the pre-9/11 program. However, Polaris obviously has no reason to know that; he's just guessing.


Actually, while the NYT story's lede graf referred to "domestic spying," the next graf states:


Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to al-Qaida, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.


It's worth noting that the Duke LJ Note Prof Kerr cites above states the following:


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


...and the POTUS could easily alter EO 12,333.

Incidentally, Pres. Bush, during his presser on the issue, stated:


So it's a program that's limited, and you brought up something that I want to stress, and that is, is that these calls are not intercepted within the country. They are from outside the country to in the country, or vice versa.


As for whether this is an extension of pre-9/11 programs like Echelon, I suppose we don't know it like we know how many fingers we have. However, the original NYT story states the new program was implemented "months" after 9/11. Is it more likely that this new system, which Sen. Graham thought was more of a change in technology than policy, and able to intercept selected conversations in real time from among an enormous number relayed at any moment through satellites, was slapped together in a matter of months, or that it represents technical refinements to the Echelon architecture?

And those who think that Echelon didn't pick up calls where at least one end was in the US are fooling themselves.

Finally, I think that those suggesting FISA is being violated need to consider whether a dragnet like this can be considered to be (1)intentionally (2)targeting (3)particular, (4)known (5)US persons -- as all would have to be shown to qualify as "electronic surveillance" under FISA (there are other definitions in the statute, but all refer to monitoring "in the United States.")
1.3.2006 7:50pm
Karl (mail):
And since Noah Klein (and Prof Kerr on occasion) mentioned the Youngstown case, it's useful to quote the most relevant part of the majority opinion (as opposed to Justice Jackson's concurrence):


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


If a court is ever confronted with the question, I would think that a fairly strong argument can be made that intercepting international telephone calls placed from numbers found on computers seized from enemy combatants falls squarely within the Article II CinC power in a way that seizing private property to settle a labor dispute does not. Moreover, in the aftermath of a devastating terror attack on US soil, the expanding notion of the "theater of war" is clearly demonstrated. Youngstown can easily be read as an outright rejection of the CinC argument in that case, which would render it distinguishable in this instance.
1.3.2006 8:01pm
Just an Observer:
Karl: "[T]here are other definitions in the statute, but all refer to monitoring 'in the United States.')"

Please note that one of the things reported by the NYT, in its 12/24 story, was that the NSA program in question intercepts data at communications switches in the United States.

The language you quote above, apparently from 50 USC 1801(f)(2), refers not to where the intercepted communications originate or terminate, but where their acquisition by the government occurs.

This particular ground has been pretty well plowed over in this and other related threads at this site.
1.3.2006 8:21pm
Medis:
Karl,

It might be worth continuing that quote from Youngstown:

"Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The [p588] first section of the first article says that 'All legislative Powers herein granted shall be vested in a Congress of the United States. . . .' After granting many powers to the Congress, Article I goes on to provide that Congress may:

make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress -- it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control.

It is said that other Presidents, without congressional authority, have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution [p589] 'in the Government of the United States, or any Department or Officer thereof.'

The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power, and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand."

And that is really the issue before us--can the President claim the right to replace the laws passed by Congress with his own law? I believe Youngstown says "no".
1.3.2006 8:53pm
Diversity Hire:
That story does not state that the NSA program intercepts data at communications switches in the United States, although it strongly implies it. Routing traffic through US-based switches ensures that that traffic appears on sniffable segments of cable coming into the US, regardless of where the actual intercept takes place.

The same data is on the wire from the overseas switch to the domestic switch, intercepting it at the far switch or anywhere along the cable before it is "inside the United States" provides the same information and is "FISA-free". If the companies who control both ends of the cable are as willing to provide data as the article claims, why would they not provide a "tap" at the far (overseas) end where it's not subject to FISA? Why would the Federal Government/NSA opt for the less useful, probably FISA-conflicting local "tap" when it could have the unencumbered "tap"?
1.3.2006 8:56pm
Just an Observer:
Diversity Hire,

Not being privy to the details beyond what has been reported, I cannot answer your rhetorical questions about administration motives.

What does seem uncontested is that the post-9/11 NSA program provides intelligence in a manner deemed superior by the Bush administration. Something changed.

As you stated, the NYT article strongly implies that the intercept takes place at the U.S. switches. I can only suggest that interested readers follow my link above to the 12/24 NYT story, read it carefully, and make their own judgment.
1.3.2006 9:11pm
Lev:
I have been wondering...about "in transit" sections of US "international airports."

Suppose a flight from Tehran to Montreal by way of NY Kennedy, with a change of equipment in NY. Presumably, Kennedy has an in transit area that is outside US customs and immigration that the Montreal bound passenger can roam around in (non US airports have them, I never bothered to notice if US international airports do).

What federal constitutional rights does that passenger have, especially vis-a-vis 4th amendment searches? As I understand it, if the Tehran origin passenger wishes to cross Customs and Immigration into the US, each and every item may be inspected minutely, including being read, without a warrant, without probable cause, without any cause. If that is correct, is the intransit Tehran to Montreal passenger who does not cross the "border" subject to the same searches? This is, of course, all "in the US" geographically speaking.

Is there a similar "customs and immigration"/in transit like point for electronic and similar communications?

1. Such that if their origin and ultimate destination are both outside the US, they are "processed" by a switching station/relay center/similar as "intransit" communications subject not only to being tracked, but to being read, without warrant, probable cause etc.

2. Such that if their origin is outside the US with destination inside the US, including a "US Person" they are or can be processed as if they were going through US customs and immigration, subject not only to being tracked, but to being read, without warrant, probable cause etc.

and

3. I have never encountered it personally in leaving the US on international travel, but may I be searched by Customs and Immigration without warrant etc. upon crossing the US national border heading out of the US? And if I may, is there a similar point for electronic traffic?
1.3.2006 11:34pm
Polaris (mail):
Guys,

The position of NSA is that FISA is not applicable (even for US Persons) as long as interception occures (no matter how much on a technicality) outside of US Borders. The above executive orders are considered controlling and they outright state this in fact. [And said Excutive order has been in effect since 1981 IIRC.]

-Polaris
1.4.2006 2:11am
Karl (mail):
Diversity hire beat me to the one point, though I'd also note that we also don't know who is doing the acquisition, either. The Echelon program apparently involved intell agents from a number of different countries, which creates additional issues of joint ventures and such. It's yet another example of lawyers and non-lawyers expressing opinions based on an incomplete statement of facts.

Medis:

As for Youngstown, the point is that the Court did not see the case as one involving the President's Article II CinC authority in the first place. The argument that this is about the POTUS's ability to ignore the law is simplistic at best, because Article II is part of the supreme law of the land under Article VI. I could just as simplistically say that the issue is whether Congress gets to seize the POTUS's authority as Commander in Chief and that the answer is "no."

It is at best a separation of powers question, which is why reading Youngstown is important. The part of the case you quoted addresses the POTUS's general executive powers. Mine addresses the CinC power. As the Youngstown Court did not see the case before it as one involving the Article II CinC power, it can be argued that the collection of intelligence based on information seized from enemy combatants falls within the scope of the Article II CinC power in a way that Truman's seizure of the steel mills in Youngstown did not. If so, the Court is more likely to defer to the POTUS in assessing the separation of powers issue. What the Youngstown Court had to say about the general executive power is not all that relevant if the Presidential action at issue is seen as an exercise of the CinC power.
1.4.2006 2:43am
Medis:
Karl,

I'm not sure the Court was only referring to Truman's general executive claims, versus his specific CiC claims, in its conclusion in Youngstown.

But in any event, the Court has recently addressed this issue in Hamdi. Strictly speaking, Hamdi was about the ongoing role of the courts, not Congress, in military matters, since a majority of Justices found that the 2001 AUMF authorized Hamdi's detention. Nonetheless, both the government and Justice Thomas made this argument about the President having not just inherent, but exclusive, CiC powers, and the plurality opinion rejected that argument with pretty sweeping language:

"In so holding, we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Sheet &Tube, 343 U.S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

Incidentally, I absolutely agree with you: Congress cannot remove the President from his position as Commander in Chief by placing someone else in command of the military. That would be another way of improperly condensing power into a single branch--in such a case the condensation would be occuring in the legislative, rather than executive, branch.

Indeed, that is the consistent rule that runs from Youngstown through Hamdi: no branch can try to annex the powers delegated to other branches in times of war. So, the Congress cannot try to take the President's military command away from him, and the President cannot try to take over Congress's role in providing military law.
1.4.2006 10:10am
john bright (mail):
I don't know if this has been addressed in previous posts but I wonder if anyone knows anything about the early history of domestic spying. For example, Did Washington order mail to be opened when he was in charge of the revolutionary army? Did the continental congress have anything to say about intelligence gathering? This type of info, if available, may be relevant to the original understanding of Art. II.
1.4.2006 12:39pm
Noah Klein (mail):
John Bright:

I cannot tell too much on this fact, because I have not specifically studied intelligence gathering during the Revolutionary War. Yet I do know that both prior and during the Revolutionary War, many people had reason to believe their mail was being written. This is why many of our Founders employed codes to hide what they were saying in their letters, especially if they crossed international boundaries, such as Jefferson's letters from France to Madison.
I do know that both in the Revolutionary War and the Civil War spies were used numerously. These spies were often women and they ranged from high society to handmaidens.

Noah
1.4.2006 1:15pm
Medis:
john bright,

I actually know a little bit about this. The Continental Congress was heavily involved in intelligence matters during the Revolutionary War through a few select committees. One was the Committee of Secret Correspondence, which did things like direct our foreign spies, develop codes, and most relevant for our purposes, authorized the opening of private mail. In retrospect, a lot of this looks like executory functions--meaning they were actually directing operations.

The other relevant committee for our purposes was the Committee on Spies, which was tasked to deal with the problem of espionage against us, and which eventually proposed adding a provision to the Articles of War dealing with spies--which the full Continental Congress did.

General Washington was also heavily and directly involved in intelligence activities. For example, he personally recruited agents and sent them on missions, and he also tasked a number of officers to do the same, as well as giving general instructions to that effect. Again, more relevantly, he also helped direct a scheme by which we could open British courier correspondence between Canada and New York without breaking the seals, copy the contents, and then send it on its way.

So, it appears both the Continental Congress and General Washington were involved in setting intelligence policy and directing intelligence operations. However, to my knowledge Washington never defied a relevant Act of Congress, and of course the Continental Congress's role in directing military operations was deliberately removed from Congress under the United States Constitution.
1.4.2006 3:57pm
davidgmills (mail):
Unnamed Co-conspirator

A case or controversy could exist because a violation of FISA carries criminal penalties.
1.5.2006 6:19pm
davidgmills (mail):
Medis:

Here's what the Law of Nations (1758 Treatise by Vetter, a Swiss Legla Scholar) which is referred to in Article I Section 8 says about spying. If Nations of tht day held their own spies in such disrepute for spying on the enemy, imagine what they would have thought about spying on their own citizens.

§ 179. Spies.
The employment of spies is a kind of clandestine practice or deceit in war. These find means to insinuate themselves among the enemy, in order to discover the state of his affairs, to pry into his designs, and then give intelligence to their employer. Spies are generally condemned to capital punishment, and with great justice, since we have scarcely any other means of guarding against the mischief they may do us (§ 155). For this reason, a man of honour, who is unwilling to expose himself to an ignominious death from the hand of a common executioner, ever declines serving as a spy; and, moreover, he looks upon the office as unworthy of him, because it cannot be performed without some degree of treachery The sovereign, therefore, has no right to require such a service of his subjects, unless, perhaps, in some singular case, and that of the highest importance. It remains for him to hold out the temptation of a reward, as an inducement to mercenary souls to engage in the business. If those whom he employs make a voluntary tender of their services, or if they be neither subject to, nor in any wise connected with the enemy, he may unquestionably take advantage of their exertions, without any violation of justice or honour. But is it lawful, is it honourable, to solicit the enemy's subjects to act as spies and betray him? To this question the following section will furnish an answer.

§ 180. Clandestine seduction of the enemy's people.
It is asked, in general, whether it be lawful to seduce the enemy's men, for the purpose of engaging them to transgress their duty by an infamous treachery? Here a distinction must be made between what is due to the enemy, notwithstanding the state of warfare, and what is required by the internal laws of conscience and the rules of propriety. We may lawfully endeavour to weaken the enemy by all possible means (§ 138), provided they do not affect the common safety of human society, as do poison and assassination (§ 155). Now, in seducing a subject to turn spy, or the governor of a town to deliver it up to us, we do not strike at the foundation of the common safety and welfare of mankind. Subjects acting as spies to an enemy, do not cause a fatal and unavoidable evil: it is possible to guard against them to a certain degree; and as to the security of fortresses, it is the sovereign's business to be careful in the choice of the governors to whom he intrusts them. Those measures, therefore, are not contrary to the external law of nations; nor can the enemy complain of them as odious proceedings. Accordingly, they are practised in all wars. But are they honourable, and compatible with the laws of a pure conscience? Certainly no; and of this the generals themselves are sensible, as they are never heard to boast of having practised them. Seducing a subject to betray his country, engaging a traitor to set fire to a magazine, tampering with the fidelity of a governor, enticing him, persuading him to deliver up the town intrusted to his charge, is prompting such persons to commit detestable crimes. Is it honourable to corrupt our most inveterate enemy, and tempt him to the commission of a crime? If such practices are at all excusable, it can be only in a very just war, and when the immediate object is to save our country, when threatened with ruin by a lawless conqueror. On such an occasion (as it should seem) the guilt of the subject or general who should betray his sovereign when engaged in an evidently unjust cause, would not be of so very odious a nature. He who himself tramples upon justice and probity, deserves in his turn to feel the effects of wickedness and perfidy.8 And if ever it is excusable to depart from the strict rules of honour, it is against such an enemy and in such an extremity. The Romans, whose ideas concerning the rights of war were in general so pure and elevated, did not approve of such clandestine practices. They made no account of the consul Cæpio's victory over Viriatus, because it had been obtained by means of bribery. Valerius Maximus asserts that it was stained with a double perfidy;9 and another historian says that the senate did not approve of it.10

§ 181. Whether the offers of a traitor may be accepted.
It is a different thing merely to accept of the offers of a traitor, we do not seduce him; and we may take advantage of his crime, while at the same time we detest it. Fugitives and deserters commit a crime against their sovereign; yet we receive and harbour them by the rights of war, as the civil law expresses it.11 If a governor sells himself, and offers for a sum of money to deliver up his town, shall we scruple to take advantage of his crime, and to obtain without danger what we have a right to take by force? But, when we feel ourselves able to succeed without the assistance of traitors, it is noble to reject their offers with detestation. The Romans, in their heroic ages, in those times when they used to display such illustrious examples of magnanimity and virtue, constantly rejected with indignation every advantage presented to them by the treachery of any of the enemy's subjects. They not only acquainted Pyrrhus with the atrocious design of his physician, but also refused to take advantage of a less heinous crime, and sent back to the Falisci, bound and fettered, a traitor who had offered to deliver up the king's children.12

But when intestine divisions prevail among the enemy, we may without scruple hold a correspondence with one of the parties, and avail ourselves of the right which they think they have to injure the opposite party. Thus, we promote our own interests, without seducing any person, or being in anywise partakers of his guilt. If we take advantage of his error, this is doubtless allowable against an enemy.

§ 182. Deceitful intelligence.
Deceitful intelligence is that of a man who feigns to betray his own party, with a view of drawing the enemy into a snare. If he does this deliberately, and has himself made the first overtures, it is treachery, and an infamous procedure: but an officer, or the governor of a town, when tampered with by the enemy, may, on certain occasions, lawfully feign acquiescence to the proposal with a view to deceive the seducer: an insult is offered to him in tempting his fidelity; and to draw the tempter into the snare, is no more than a just vengeance. By this conduct he neither violates the faith of promises nor impairs the happiness of mankind: for criminal engagements are absolutely void, and ought never to be fulfilled; and it would be a fortunate circumstance if the promises of traitors could never be relied on, but were on all sides surrounded with uncertainties and dangers. Therefore a superior, on information that the enemy is tempting the fidelity of an officer or soldier, makes no scruple of ordering that subaltern to feign himself gained over, and to arrange his pretended treachery so as to draw the enemy into an ambuscade. The subaltern is obliged to obey. But when a direct attempt is made to seduce the commander-in-chief, a man of honour generally prefers, and ought to prefer, the alternative of explicitly and indignantly rejecting so disgraceful a proposal.13
1.5.2006 6:35pm