pageok
pageok
pageok
GW Law Panel on NSA Surveillance Program:
Quick note for our DC-based readers: On Wednesday, January 11, 2006, from 4 to 5:30 pm, the George Washington University Law School will host a panel presentation titled "Secretly Listening: NSA Eavesdropping and the War on Terror." It will feature a diverse panel of faculty experts on the legal issues surrounding the NSA domestic surveillance program. The panelists will be Greg Maggs, Peter Raven-Hansen, and myself, and the panel will be moderated by Mary Cheh. The event will be held at the Faculty Conference Center at the 5th floor of Burns Hall on 20th Street between H and G Streets. The event is open to the public.
Armando (mail):
Professor Kerr:

You may want to factor in this argument made by the Bush Administration in a brief to the Supreme Court in 2002:

In the case of Breuer v. Jim’s Concrete of Brevard, 538 U.S. 691 (2003), the Administration vehemently (and successfully) argued in brief to the Supreme Court, signed by Bush’s own Solicitor General, Theodore Olson, that a statute (such as FISA) cannot be "amended by implication" in the absence of clear Congressional intent to amend it. Thus, the Bush Administration itself just two years ago emphasized:

the cardinal rule that repeals by implication are not favored, and will not be found unless an intent to repeal is clear and manifest. . . . In the absence of an affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable. In other words, where the two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.


via Glenn Greenwald.
1.4.2006 9:45pm
SDOH:
Professor Kerr,
Is there any way that you could convince GW to make a podcast?
1.4.2006 9:53pm
Medis:
Armando,

And as I understand it, that is just a straightforward statement of the doctrine of implied repeal.
1.4.2006 10:38pm
Armando (mail):
Indeed Medis, it is garden variety statutory construction.

While many in these blog threads are engaged in intensive speculation as to what exactly the NSA surveillance program might be, the very simple fact that the Attorney General has stated in no uncertain terms that WHATEVER the program is, it is not in compliance with FISA and is authorized instead by AUMF is studiously avoided.

Many in these threads find it hard to accept that the Bush Administration legal argument is clearly hogwash on the statutory interpretation issue, precisely because of the clear doctrine of what is necessary to prove implied repeal. I happen to think the Article II argument is also preposterous, but not as preposterous as the statutory interpretation argument which is simply embarrassing.

I think implied repeal need mention in a quick dispatch of the Justice Dep't argument at Prof. Kerr's symposium.

THEN they can consider the outrageous Article II argument forwarded.

When that is dispatched THEN the reality will have to be faced - the President is engaged in the deliberate violation of federal law.

Then what? I leave to them.
1.4.2006 11:26pm
Medis:
Armando,

Of course, the cynic in me suggests that the standard might be that any legal argument that barely avoids impeachment is good enough. And we live in a gerrymandered world, so that doesn't have to be a very good argument.
1.4.2006 11:38pm
Just an Observer:
Prof. Kerr,

Is there any possibility that the panel could be recorded and that a link to recorded audio or even video could be posted here?
1.5.2006 1:04am
Kazinski:
I'm glad Armando and Medis have such active imaginations. I actually think the first order of business when the house gets back from recess is that Hastert should put Conyer's impeachment resolution up for a vote. Just like they did Murtha's surrender proposal. It would have the same result.

I'd like to see the name of one senior Democrat that has even called for the NSA to stop its monitoring program. If the Democrats, were somehow to take back Congress, which is not unthinkable (I'm thinking of voting against my own GOP congressman because he voted against ANWR), they wouldn't have the fortitude to vote for articles of impeachment based on a program that is favored by a vast majority of American opinion. Especially a program that has not been declared illegal by any court. Nor is there any court opinion that anyone has yet cited that comes close to saying that the NSA program is illegal, even taking the most unfavorable assumption of the yet unreleased details. The simple fact is no that court has ever ruled that the President needs a warrant to conduct Foreign intelligence surveilence of any kind. And I'd be willing to bet that this Supreme court (or most any other) would avoid taking any such case by at least 7-2.
1.5.2006 1:28am
Kazinski:
One point I'd like to make on your statutory construction arguement. Your assumption is that a declaration of war is like any other piece of legislation, to be interpreted like any other statute. I'm just a programmer not a lawyer, and I'm probably ignorant of all the examples, which I'm sure you'll provide, of all the other statutes where Congress tells the President he "is authorized to use all necessary and appropriate" means to implement a statute. That doesn't seem like standard language to me, in fact it seems rather extrordinary. One other fact that a court may look at before applying that "garden variety statutory construction": AUMF was passed THREE days after the 9/11 attacks. Do you really think that any court would expect Congress is going to research and compile every bit of peacetime legislation that they expect a declaration of war to supersede?
1.5.2006 2:05am
Noah Klein (mail):
Kazinski:

A Declaration of War or Authorization of Military Force is not like any other law in that it is such a grave and serious matter. Yet to say that just because it is such an important law it overrides another very important law without specifically stating it is not logical.

The term "necessary and appropriate" are often used in laws (I'm sure somebody else can be exterprising enough to find the examples). This term means that an energetic executive should use all powers available to him by law. It does not allow the president to override another law. This was the point made in the Youngstown case.

Noah
1.5.2006 2:20am
Medis:
Kaz,

I think your analysis of the political situation simply backs up my point, which was that even shoddy legal arguments could be good enough for the Administration when they know that the only real remedy would be impeachment. In other words, if some objective legal analyst told them that what they were doing was probably illegal, but then some political analyst told them basically the same thing you just said, then they might listen to the political analyst and not the legal analyst--provided, of course, that they did not really care too much about following the law if it could not be enforced.
1.5.2006 6:55am
Kazinski:
Medis,
So in other words if Congress and the Executive agree on where the line is (fuzzy as it may be) on the separation of their powers, then the courts see no controversy to be decided?

Sounds good to me.
1.5.2006 9:39am
Medis:
Kaz,

That makes it sound like the Members of the House would be objectively determining the merits of the legal question. I thought you were suggesting--and I am certainly suggesting--that political calculations would dominate any such legal considerations (although there is some overlap to the extent that people do not like it when others break the law).

In any event, certainly the courts would not get involved with respect to the President himself, regardless of what Congress decides to do. On the other hand, the courts might get involved as other cases involving these issues arise. And should the courts determine one or more of the relevant issues, I would expect such determinations to have some effect on the political calculations, for the reason stated above.

But again, the cynic in me suggests that even if, say, criminal prosecutions are dismissed, and even if some others in the government face civil liability and even criminal charges, as long as impeachment is off the table, the legal arguments were "good enough".
1.5.2006 11:30am
AJStrata (mail) (www):
Professor Kerr,

I have posted a few comments on this site concerning confusion in the media, blogosphere and elsewhere the real issue behind the NSA-FISA dust up. Today's Washington Post article confirms all of my suspicions.

LINK

The entire issue boils down to a few contray judges who do not want intel (by definition warrantless) used as a basis for probable cause or leads to terrorists in America.

It is not about the fourth amendment or war powers act or AUMF - thouhg these might be aspect of arguments on either side. The problem is FISA judges decided they did not want to use intel on possible terrorists in their determination of probable cause. Since all intel is warrantless, then in their tunnel-vision minds no intel on activities here in the US can be used to investigate here in the US.

Dumb, but that is what it is
1.5.2006 12:10pm
Kazinski:
Medis,
Political calculations? In Washington? Don't be absurd. There are about 5 people in the US that don't care about the political calculations in this whole matter. And none of them are in the Congress, the Supreme Court or posting on this blog. Or in the press for that matter. A lot of the articles in the press are downright dishonest, starting with labeling the program "Domestic Spying".
1.5.2006 12:30pm
Medis:
AJStrata,

You say: "intel (by definition warrantless)".

You might want to took at 50 USC 1804(a), specifying what the application for a FISA warrant must include. In particular, you might want to look at 1804(a)(7):

"a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate—
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801 (e) of this title; and
(E) including a statement of the basis for the certification that—
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques;"

And also 1805(a), which specifies the necessary findings before the FISC may issue a FISA warrant, including 1805(a)(5):

"the application which has been filed contains all statements and certifications required by section 1804 of this title and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section 1804 (a)(7)(E) of this title and any other information furnished under section 1804 (d) of this title."

The whole point of FISA is to provide a warrant system for electronic surveillance designed to obtain foreign intelligence information. So, "intel" is not "by definition warrantless".

In general, this is another of the bizarre ideas floating around the blogosphere--that FISA is about law enforcement, not foreign intelligence, when in fact the exact opposite is the case.
1.5.2006 12:31pm
Medis:
Kaz,

Sure, and that proposition supports my point. Of course, as an aside, I'd note that one can care about political calculations without that being the ONLY thing one cares about.
1.5.2006 12:33pm
AJStrata (mail) (www):
MEDIS,

Intel on foreign agents pverseas does not require a warrant and is legal. Therefore it is a legal warrantless surveillance.

Think about what I wrote instead of where you have been the last few weeks. NSA has the right and duty to monitor communications of known and highly suspected terrorists overseas. During that monitoring contacts with persons in the US is discovered.

That discovery is used as part of the probable cause argument to FISA, as the NSA hands the lead to the FBI. FISA judges do not know information coming in comes from NSA, or if the supsect, which information is from NSA.

Robertson balks at NSA intel (legal and warrantless) used to establish probable cause for the US investigation on the NSA tip. He balks, talks, and walks.

This is not about FISA. It is about judges trying to establish a wall for leads to US based terrorists using NSA intelligence.

Now do you understand what I am saying? Today's article proves beyond much doubt this is the crux, and discussions on FISA rules for warrants are distractions.
1.5.2006 1:14pm
AJStrata (mail) (www):
MEDIS,

What if I am right! What then? What happens if the FISC judges are true to their word and trying to barricade FISA from leads garnered from NSA and other intel sources?

What then? Read the article with this 'theory' in mind. Because I am not arguing whether FISA is foreign intelligence or not (of course it is - I did not think you needed a primer in that subject). I am arguing there are people trying to stop leads coming in from sources they do not politically agree with.
1.5.2006 1:18pm
Medis:
AJStrata,

Except there is nothing in the article to support your "theory" that the FISC was opposing warrants based solely on information gained from NSA surveillance of foreign agents located overseas. Rather, as frequently admitted by the President, Gonzales, and everyone else in a position to know, they were also conducting surveillance of United States citizens inside the United States. And as Gonzales stated, this surveillance would have required FISA warrants if not for the 2001 AUMF.

So that is what the FISC may have objected to, and what they want a briefing on: the Administration using information gained from warrantless surveillance that would have required a FISA warrant (if not for the 2001 AUMF) to then obtain FISA warrants.

Indeed, your theory is completely nonsensical. No one has suggested that there is something inherently improper about using the NSA to generate evidence for FISA warrant applications (and I have no doubt that has happened and is continuing to happen as we speak, with no objection from the FISC). Rather, the suggestion is that it is improper for the NSA to generate evidence for FISA warrants with surveillance that is unlawful.
1.5.2006 2:23pm
KMAJ (mail):
AJStrata,

If what you lay out in reasoned fashion is true, some judges on the FISC would then be acting as a obstacle to the implementation of 9/11 Commission recommendations of agencies, the FBI and the intelligence community specifically, being able to communicate, enforcing the Gorelick wall. One would hope that this is not the mindset of the majority of FISC judges, if it is, the FISC becomes a serious impediment to preventing another 9/11. The Farris case is a strong argument for the NSA program. In the age of terrorism, that wall between intelligence and criminal information needs to be seriously overhauled, as terrorism, itself, and activities related to it, is a crime, the gathering of intelligence to prevent it dictates a necessity to recognize that prosecution is an essential part of prevention.

The normal warrant process and requirements, even the relaxed FISA standards, seem to be disconnected from the reality of intelligence gathering. Often, the information that initially raises suspicion to cause surveillance will not meet the standards of a FISA warrant. It may not bear fruit weeks or months, which makes the 72 hour retroactive clause ineffectual. Does that mean that intelligence has to refuse to act ? What would be the price for such restrictions ?

The balance between security and civil liberties is very complex, but what good are your civil liberties if you are dead ? What solace is provided to those killed in a terrorist attack or their family that at least those who championed civil liberties above security still have their principles ? This is not a dismissal of the importance of civil liberties, only a pragmatic opinion of how delicate finding the correct balance between them and security, in the face of tody's terrorist reality, is. Clearly, strict oversight and checks are necessary, with a strong and frequent review process, that also recognizes the secrecy necessary in intelligence gathering. Any such intelligence program should have a sunset provision for full scale review on the need for renewal or provisions for termination due to abuse. Also, there needs to be some new parameters introduced for addressing US citizens/legal immigrants who are members of, cooperating with, or aiding terrorist organizations that puts them in the same category as spies from foreign countries, i.e. FDR and the German spies caught in the US during WWII.

It does seem reasonable to believe that Robertson's resignation was not in protest, but in recognition that he will be revealed as one of Risen's sources. He has been described as one of the most left leaning judges, if not the most, on the FISC.
1.5.2006 2:24pm
Medis:
KMAJ,

There is no doubt those are difficult policy questions which require a careful balancing of various important considerations. There is also no doubt that in our constitutional structure of government, deciding those difficult policy questions is a matter for Congress.

By the way, do you have any other "evidence" that Robertson is under investigation besides that he is "left leaning"? And are you seriously suggesting that is actually "evidence"?
1.5.2006 2:34pm
Just an Observer:

The the point of view advanced in the colloquy between AJStrata and KMAJ relates to a general public-policy issue -- the tradeoff between security and liberty -- and a specific public-policy issue -- the proper relationship between FISA intelligence and criminal prosecution.

Both the general and specific question were central to what was addressed in the USA-PATRIOT Act, which made several amendments to FISA. Notably, that act did not grant additional authority to perform warrantless surveillance. According to Atty. Gen. Gonzales, the administration did not seek such authority for fear it would not be granted.

Most of the questions in this blog on the NSA-surveillance matter revolve around what the law is. You raise arguments about what you think the law ought to be.

AJStrata and KMAJ seem to be arguing that their public-policy preferences justify violating the law if FISA and its pesky court get in the way.
1.5.2006 2:55pm
KMAJ (mail):
Medis,

I agree with the difficulty of these policy issues and that the major responsibility for deciding lies with Congress, provided their decision passes Constitutional muster with the judicial branch and the approval of the executive branch to sign such a decision / legislation.

Re: Robertson - I carefully used the word believe to emphasize as opinion, and did not use the word evidence. I make no pretense to having evidence. Without getting into a lengthy opinion piece, the circumstances and actions surrounding his resignation do support it being logically plausible. As more information is revealed, the plausibility will rise or fall, at this point in time, it is certainly in the realm of reasonable.
1.5.2006 2:59pm
KMAJ (mail):
JoA,

I would prefer you try not to put words in my mouth or incorrect statements of my position. Stating that current laws or statutes are inadequate is not an endorsement of violating the law. The simple fact that this debate is being had lends credence to the fact that what you like to claim is 'decided law' is clearly being subjected to different interpretations, and, as such, is clearly not 'decided law'.

I will not claim your opinion of the law is wrong, what I will state is that your opinion has not been born out as fact in application or interpretation.
1.5.2006 3:08pm
Medis:
KMAJ,

Regarding Robertson, that is a funny definition of a "reasonable" belief--you claim it is "logically plausible", but offer no supporting evidence. So how did it move from a mere possibility to something you actually believe? Again, is it because he is "left leaning"?

Anyway, as JaO points out, FISA as amended by the USA-PATRIOT Act was duly passed by Congress and signed by the President. So I guess that leaves the courts--and although they didn't actually decide this issue, I don't think Hamdi leaves much hope for the view that the Supreme Court would find something like FISA to be unconstitutional--which is good, since the text of the Constitution clearly authorizes Congress to pass laws like FISA.
1.5.2006 3:25pm
KMAJ (mail):
Medis,

The timing of Robertson's resignation and his lack of comment lend to that 'reasonable' status. His ideological temperament do add some weight, as well to the opinion or belief that it is plausible. Your 'semantic' argument does not recognize the difference in belief in plausibility or belief in fact. I subscribe to the former, not the latter.

I do not dispute that the Patriot Act was passed and signed, my point was that because the current debate is being engaged, the interpretation and interaction with existing law, is not decided law. If it were, would this discussion even be occurring ? I did not argue that JaO's opinion was wrong, only that it was not fact in application or interpretation. The Supreme Court may rule exactly as he feels, or they may not.

I don't argue that FISA is or is not unconstitutional, and would seriously doubt SCOTUS would rule on such a basis. What they could rule on is if certain aspects of FISA cross constitutional boundaries of the separation of powers, possibly adding definition to 'encroached' in Sealed Case. Remember, FISA has never been brought before SCOTUS before, it has reached (not necessarily directly) the Appeals Court level, I believe (I could be wrong), four times, and each of those four times there has been debateable references to 'inherent powers'.

SCOTUS will probably decide under which of Jackson's Youngstown categories this falls, which will hinge on their interpretation (not what any of us think) of what authority the AUMF gives to the executive branch. I think Curtiss-Wright will also come into play on the foreign policy aspect of executive authority. But I do not see this being a constitutional or unconstitutional case on the whole of FISA.
1.5.2006 4:23pm
Just an Observer:
KAMJ,

Apologies if I misinterpreted your remarks.

I thought you had associated yourself with the basic thrust of AJStrata: "The entire issue boils down to a few contray judges who do not want intel (by definition warrantless) used as a basis for probable cause or leads to terrorists in America."

That association was, perhaps, just my impression, and not your intent. I withdraw my inference that you and he are in substantial agreement.

As for AJStrata, if he did not mean his statement as a justification for the Bush administration's decision to bypass the FISC court, then I guess I don't know what he meant.

As far as I know, the FISC judges are exercising their responsibility under the law. It seems to me appropriate for such judges to inquire, given what we know now, if any findings of probable cause were the tainted fruit of extralegal surveillance undisclosed to them when the orders were decided.

In a rhetorical excercise of stunning illogic, AJStrata says the whole thing is the judges' fault.
1.5.2006 4:29pm
KMAJ (mail):
JaO,

Thank you.

My opinion on Bush's actions is that there is a disagreement whether Bush was bypassing FISC legally or illegally. I do not make the assertion of the legitimacy of either position being 'right' as a factual presentation. That will be for SCOTUS to decide. My opinion does lean towards it being legal, but it is only opinion and nothing more.

I would never make a blanket statement of it being solely the fault of the judges. Judges are human, as are elected officials, and are subject to the human frailties, as we all are. Being human, ideological temperament, shaped by their personal beliefs and experiences, are going to impact how they may rule.

Personally, I find the civil liberties versus security debate to be extremely complex with weapons technology that could come to bear. The thought of a nuclear device being set off in a major city, or setting off an EMP over this country, puts a very disconcerting dynamic into play. It becomes necessary to incorporate the fear factor into the equation, but not allow it to result in an overreaction. By fear, I do not mean irrational fears or phobias, but recognition of the reality of what the detonation of such weapons would cause. I do not pretend to know where that line of balance should be placed, only that applying domestic criminal standards to terrorists is not adequate and is very dangerous. I hope that our elected officials and judges can put politics aside and find that right balance.
1.5.2006 4:57pm
AJStrata (mail) (www):
Medis, you are stuck on....

The article repeats concernsm echoing Robertso's, that NSA 'tainted' FISA warrants. Can you read between the lines or are you limited to what you are told? OK, stay blind.

KMAJ, yes it means FISA judges were trying to use technicalities to overturn the 9-11 commission and Patriot Act. And it was not the first time. I have posts on the 2002 events were the FISC tried to retain the Gorelick Wall. In their May 2002 decision, they brag about being the essence of the Gorelick Wall, admit they want to retain it, admit their acting as wall had bad consequences, but claimed they had the right to decide what is law under FISA.

That caused the first time the FISA Review Court was called and they rebuked Lamberth's FISC - heavily. Just search 'Gorelick Wall' on my site and you can find links to the FISA documents.

They were proudly the embodiment of the Gorelick Wall - read their own words to see it. And in May 2002, they wanted to keep that wall in place.

That is the majority (unanimous decision) of the FISA court back then.
1.5.2006 5:06pm
Medis:
KMAJ,

I appreciate the difference between "belief in plausibility" and "belief in fact". And although this is indeed just semantics, I might note that I think most people would read "believe that X" as a statement of the latter (in contrast to something like "believe that X is plausible"). Incidentally, are you really suggesting that being "left leaning" makes one more likely to leak classified information?

Anyway, I agree that there are a host of issues a court would have to resolve (if this matter was ever litigated in court). I might note that personally, I'm not sure what I might call the Curtiss-Wright-Dicta/Sealed-Case-Dicta view of "exclusive" Presidential war powers (not just "inherent" Presidential war powers) can be reconciled with the actual holdings of Youngstown and Hamdi. Indeed, even Justice Thomas, who cited Curtiss-Wright in dissent in Hamdi, followed that citation with this analysis:

"Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive."

And in reply to Justice Scalia, Thomas wrote:

"I do not believe that Justice Scalia’s evidence leads to the necessary 'clear conviction that [the detention is] in conflict with the Constitution or laws of Congress constitutionally enacted,' Quirin, supra, at 25, to justify nullifying the President’s wartime action."

So, I'm not sure even Thomas would go so far as what the dicta in Sealed Case might (although it is unclear) imply.

But one never knows for sure.
1.5.2006 5:12pm
AJStrata (mail) (www):
Just An Observer,

Actually, there is no debate. When a warranted surveillance listens in on conversations between the target and others not targetted by the warrant - it is legal. You don't need a new warrant everytime someone new contacts the target of surveillance. Now, to surveillance one of these contacts you need to go back and get the warrant expanded.

Well there are a class of legal warrantless surveillances. The example being NSA listening in on a known terrorists overseas. This legal warrantless surveillance is equivalent to the domestic warranted surveillance. It is legal and as long as the surveillance is on the target, whoever comes into that surveillance is fair game.

And if you want to then target one of these contacts, say in the US, you would have to go to FISA to get the warrant to do so.

This is all legal and normal. And some have huge issues with using intel, legally obtained, as probable cause.

If the lefties want to claim a terrorist is protected once he gets inside our shores - go ahead! Demnocrats will never win another election again and the political process will havce done what it is supposed to do.
1.5.2006 5:15pm
Medis:
AJStrata,

By "read between the lines", I take it you actually mean "pay no attention to what the President and Attorney General have actually said about what is happening, or any other report on this matter, but instead accept my unfounded speculation."

I'll have to decline your invitation to follow you down the paths of your imagination.
1.5.2006 5:19pm
AJStrata (mail) (www):
JOA,

Are you going to try and tell me a highly opinionated judge will never interpret the law beyond its meanings?

Naive.

Robertson resigned in protest - but made no public statement? Robertson used surrogates to leak the impression he resigned over differences concerning the use of intel to support probable cause claims (their words, not mine). But those are the only people making the claim - heresay!. The administration refuses to comment - typical if someone is under legal investigation. And sources in the government are saying the investigation and Robertson clairevoyant resignation (prior to the NY Times story) are linked....

But hey! There is nothing there to conclude Robertson resigned out of protest. I am impressed.
1.5.2006 5:22pm
Medis:
AJStrata,

Indeed, that would all be normal. It is also not what is happening in this program. As explained by Gonzales:

"What we're trying to do is learn of communications, back and forth, from within the United States to overseas with members of al Qaeda. And that's what this program is about.

Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."

But what does he know?
1.5.2006 5:23pm
KMAJ (mail):
AJStrata,

Because the 9/11 Commission Report is of more recent origin, I would not necessarily attribute to the FISC an effort to overturn it. Your Patriot Act allegation does carry some weight as does your tying the Gorelick Wall to FISC. I do not think it can be argued that there is no correlation between FISA and the Gorelick Wall, which are integrally tied together. I do also agree that Sealed Case was a rebuke and that any future SCOTUS rulings will take the 9/11 Commission Report into account.

If the majority of the current FISC does subscribe heavily to maintaining the Gorelick Wall, in light of the 9/11 Commission Report, it no longer becomes a safeguard of civil liberties, but a detriment to providing security.
1.5.2006 5:23pm
Medis:
AJStrata,

You say, "And sources in the government are saying the investigation and Robertson clairevoyant resignation (prior to the NY Times story) are linked."

Do you have a link for that?
1.5.2006 5:25pm
AJStrata (mail) (www):
JOA,

Get out of the media spin. I never claimed there was any justification to avoid FISA. There is NO FACTUAL BASIS to conclude Bush avoided FISA! None.

What I said is you, and many others, are victims of the classic diversion ploy.

My theory is NSA gets leads of terrorists in the US from monitoring terrorists. That is completely accurate within the public statements of officials.

These communications can be to someone in the US or from someone in the US - because we are monitoring all communications. That is also accurate with all public statements.

When a potential lead on a terrorist in the US is found, the NSA will alert the FBI since it is their jurisdiction. Duh.

When the FBI takes up the lead they want to start surveillance to make sure the lead is really a terrorist or not. They go to FISA. That is the law you folks here keep repeating ad nauseum. So I hate to think anyone objects to this!

Now comes the difference of opinion. The MSM spin is sometimes Bush goes around FISA (he never says that or admits it, and all the phrases I have seen here references do not unambiguously support that interpretation). So let's assume a different scenario.

FISA judges in general are not aware of the NSA referrals because, due to the highly classified nature of the NSA work, only the Chief FISA judge knows the details. The Chief judge works out and monitors standards for using NSA information in developing probable cause.

Other FISC judges don't like this and feel NO intel data should be used to argue probable cause. They resist and finally bal, talk and walk.

I have no respect for a judge who uses their position (and the resignation therein) for political purposes. There are mechanisms to air concerns. Robertson went over the head of the FISC Chief Judge.

While it might be interesting if this was some enormous constitutional crisis, it has all the markings of some judges all bent out of shape because their interpretation of the law is not being followed.

Sorry, plain human nature at work here - no grand conspiracies!
1.5.2006 5:34pm
AJStrata (mail) (www):
MEDIS,

You have bad habit of trying to mind read and translate what others mean. I suggest you stop, you are terrible at it.

I have seen your references for those claims on what Bush MEANT verses what he said. Your interpretations/translations are notoriuosly strained.

Think about the process I described were leads from NSA intel are legally identifying suspects in the US, and these leads are then passed to the FBI who goes to FISA for continued surveillance.

You will find those same words apply to that scenario as well!

Enjoy.
1.5.2006 5:40pm
Medis:
AJStrata,

You say: "Now comes the difference of opinion. The MSM spin is sometimes Bush goes around FISA (he never says that or admits it, and all the phrases I have seen here references do not unambiguously support that interpretation). So let's assume a different scenario."

Gonzales says: "Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress."

Hmm ... I never knew the White House website and Attorney General were all part of the "MSM"!
1.5.2006 5:42pm
KMAJ (mail):
Medis,

In my uneducated opinion, I believe Youngstown's significance is in Jackson's three categories, where does the AUMF make this case fall. Otherwise, Jackson mainly deals with Truman's incursion unnecessarily on legislative branch authority in domestic affairs. I don't think the necessity of steel versus intelligence to command of the military are equivalent. Truman could have asked Congress to pass legislation, or even called an emergency session if they were in recess, to address Youngstown, there was no immediacy element. The immediacy of intelligence, and the sometimes specious nature that intelligence involves, do not fall easily into comparison with the issues involved in Youngstown. Also, I think foriegn intelligence is a critical component of executive authority to effectively and strategically command the military and protect the nation from external threats in a timely and expedient fashion.

In whatever fashion this gets to SCOTUS, the rulings will be very interesting and heavily scrutinized. My opinion is that they will rule in favor of executive authority with some constraints.
1.5.2006 5:47pm
AJStrata (mail) (www):
MEDIS,

Try and shake your tunnel vision lad:

"What we're trying to do is learn of communications, back and forth, from within the United States to overseas with members of al Qaeda. And that's what this program is about. "

That means NSA as well as other means. That is the general goal. It is broader than FISA and NSA.

"Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."

Now MEDIS are you interpreting this to means NSA cannot monitor all communications (coming and going) of a terrorist target overseas? Intel is the purview of the executive branch. I am sure you can find some statute or other to determine that is a fact.

Also, it is clear that when monitoring this target overseas there is a chance someone in the US will fall into the surveillance. Now make sure you understand the target of the surveillance is the terrorist overseas - so that means any and all who fall into that surveillance are fair game! Or are you going to site statute and laws that specifically (not vaguely) say otherwise.

The authority to survey are enemies is further enhanced by an AUMF. Icing on the cake. Are you saying we cannot survey our enemies, even when Congress has authorized the use of military force (read 'assets', which the NSA is)?

I see a very confused person who believes that we cannot monitor are enemies, and when a person in the US falls into that monitoring, it is not legal and proper to then pass that information onto domestic law enforcement?

Funny, you are as confused and misguided as Robertson this.......

Wonder how that happened??? Could it be....

Is it possible...

You both are simply mistaken and unable to see the fact you are mistaken?? Have you tunneled your views down to only that information that supports your views and now find yourself in a daily attempt to push off all contrary information with ever strained rationalizations??

Is it possible you are dismissing the very information that could help you avoid being so wrong???

Thanks, you make a perfect example of how Robertson got where he ended up.
1.5.2006 5:53pm
AJStrata (mail) (www):
KMAJ,

I did not make the connection - the FISC judges made it themselves.

http://strata-sphere.com/blog/index.php/archives/1103

Follow the links to the May and Sept rulings. The May one will stun you.
1.5.2006 5:57pm
AJStrata (mail) (www):
MEDIS,

Well why in the world would you confuse the WH and the MSM lad?

Geez, what's wrong with you?
1.5.2006 5:59pm
Medis:
KMAJ,

As an aside, you should check out Vinson's dissent in Youngstown, if you haven't already. I think the notion that securing necessary war materials is somehow less a part of war than obtaining intelligence is a little far-fetched.

In any event, that is why I also note Hamdi. As the plurality holds in Hamdi, battlefield detentions are surely as essential to war as anything. And yet the plurality rejects Thomas's argument, based in part on Curtiss-Wright, that "it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive."

Instead, the plurality argued, "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."

So, the plurality in Hamdi did not distinguish provisioning from battlefield detention--so why would it distinguish provisioning from intelligence? And it held that the courts retain a role in battlefield detentions and stated in dicta the legislature would also have a role--as did even Thomas.

But again--one never knows. But as people commented at the time, Hamdi was a pretty adverse decision for the "exclusive" war powers notion.
1.5.2006 6:04pm
Medis:
AJStrata,

Because you said that only the MSM is "spinning" the President's words to conclude that this program would have required warrants under FISA if not for the 2001 AUMF. And since Gonzales actually said that, and it is all available on the White House web site, I assume you think that Gonzales and the White House are all part of the MSM.

Poor President Bush. He is really surrounded by the MSM. Thank goodness he has you to explain (well, ignore) what Gonzales actually said.
1.5.2006 6:10pm
Just an Observer:
AJStrata:

My theory is NSA gets leads of terrorists in the US from monitoring terrorists. That is completely accurate within the public statements of officials.

These communications can be to someone in the US or from someone in the US - because we are monitoring all communications. That is also accurate with all public statements.

When a potential lead on a terrorist in the US is found, the NSA will alert the FBI since it is their jurisdiction. Duh.

When the FBI takes up the lead they want to start surveillance to make sure the lead is really a terrorist or not. They go to FISA. That is the law you folks here keep repeating ad nauseum.

You left out the part where the NSA actually intercepts the communications of American citizens, as the Bush administration now acknowledges, without going to court. That's where that pesky law comes in.
1.5.2006 6:26pm
KMAJ (mail):
Medis,

You ignore my point of the immediacy aspect of intelligence versus steel. And while the necessity of materials is important, it is not analogous to intelligence in tactical application or acquisition.

As far as the Hamdi decision, I have seen pro and con on its impact on executive branch authority, personally, I think it gives a conflicted decision.
1.5.2006 6:55pm
Medis:
KMAJ,

I'm not sure I understand your immediacy point. FISA, of course, contains both the 72 hours emergency provision, as well as the 15 days after a declaration of war provision. In any event, the President never sought congressional amendment of the relevant laws in the multi-year course of this program.

With respect to Hamdi, I think we need to distinguish the notion that the President has something like "inherent" war powers (which it arguably supports) from the notion that the President has something like "exclusive" war powers. I don't see any support for the latter proposition except for in Thomas's opinion, and then only with respect to the courts. In contrast, all the Justices, including Thomas, stated that the President's authority was not exclusive of Congress's.
1.5.2006 7:25pm
Noah Klein (mail):
AJStrata:

I'm going to try to say this plainly because you cannot seem to read what you have written. You have complained continously that we who oppose this program and the president's legal justification for it do not understand what the program is and how it is being conducted. I THINK it is you who are mistaken.

The target of this surveilance (from everything provided by the president, the AG, and the media) ARE U.S. CITIZENS in the U.S. If the target were foreigners overseas than FISA would not apply, because it specifically says it applies to U.S. citizens.

EVERYONE engaged in this discussion should know that the NSA has carte blanche' to surveil foreigners in foreign countries without a warrant.

The issue that I who oppose the program find with it is not that it surveils U.S. citizens, but that it targets U.S. citizens without first obtaining a warrant or retroactively obtaining a warrant. If you want an authority on this then please read what the AG said in his briefing when he said "FISA provides--requires a court order for this kind of surveilance.

Are you saying that the NSA can TARGET U.S. CITIZENS without obtaining a warrant? If so, then we can debate, but please do not tell us things that we have already called legal and defended are legal. WE KNOW THAT. What we find strange is that you keep on defending something that we have already agreed is legal and are ignoring the isuue at hand.
1.5.2006 7:31pm
Bruce Hayden (mail) (www):
Let me start with Noah.

The President has stated that it the foreigners who are being targeted. Not the U.S. citizens. The problem appears to arise when a foreigner being targeted calls someone in the United States (and therefore, presumably a U.S. Person in the U.S.)

What about that conversation? The conversation between a suspected or known terrorist outside the U.S. and someone in the U.S.?

Next, in a different thread, I think it is now apparent that the NSA, by necessity, does a lot of its surveilance of fiber optic transoceanic traffic on U.S. soil - because that is really the only place it can physically be done. Most likely, they are tapping into the major overseas switches and looking at pretty much all the traffic going through them, looking for calls to or from known foreign phone numbers, or doing voice recognition to detect known foreign voices. And when they get a match, they record. Because of the volume involved, this is all automatic.

So, what is the status of that recorded conversation? It appears to be “Electronic surveillance” under 50 USC 1801(f)(2) since it was intercepted on U.S. soil.

The problem I see is that the conversation has been recorded. Obviously, without a warrant, since until the recording was triggered, there was no reason to get the warrant. Oh, and yes, it is possible that maybe the NSA should have gotten warrants against the people it is looking for - except that they are limited, for example, to at most one year (for a foreign power). So, they have been looking for OBL for longer than that.

So, I looked at the emergency provisions in 50 USC 1805(f), where everyone seems to be getting the 72 hours. But I read that as saying that the AG can authorize surveilance on an emergency basis, as long as it is approved by the court within 72 hours. The problem here is that the conversation has already been recorded - before the AG has a chance of approving it (because the recording is done automatically, or, at a minimum, contemporaneously).

If we go on what the President said, that the surveilance is essentially being triggered by detecting an enemy at one end of a call, and the other end of the call happens to be in the U.S. (where that party is presumably a U.S. Person in the U.S.), I don't see any way out of this. Recording the call would seem to run afoul of FISA, and there seems to be no way to make it conform to that law.
1.6.2006 12:22am
Kazinski:
Noah,
Well here you go: Warrantless surveilence of US citizens communicating with Al Qaeda or its minions is legal.

The now some would tell you that the Adminstrations AUMF authorization argument flies directly in the face of FISA, but 1) I don't think so and 2) if it did AUMF would trump FISA.

The reason I don't think FISA and AUMF are in conflict is simple FISA says:

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


Is not AUMF a statute? Does not AUMF authorize "is authorized to use all necessary and appropriate force"? To those that would say that authrizing "force" does not authorize gathering intelligence, would you also say that it does is like saying where
1.6.2006 12:24am
KMAJ (mail):
Medis,

It is just that, the executive branch authority is not clear, and the AUMF lends itself to having given him certain powers, which is yet to be determined by any court. Hamdi did not lay out a definitive limit, hence it being more conflicted than enlightening.

The immediacy issue, which cuts both ways, goes to the heart of the nature of intelligence gathering, and even the looser FISA requirements do not lend themselves. Where some surveillance info requires immeduate action, the 72 hour period 'may' not be a hindrance, but what if that information is not up to the standards for a warrant but is accurate ? Another hypothetical, what if surveillance of a terroist overseas picks up a call from someone in the US ? The conversation does not lend itself to certainty of cooperation to get a warrant, do you say stop monitoring ? The nature of intelligence is that sometimes that first little tidbit, while not measuring up to the requirements of a warrant, may take months to bear fruit, but because it has not done so in 72 hours, you are going to shut it down ?

We can speculate n what particular judges on the FISC are requiring, but with the large number of modifications, it might be safe to assume that they may be enforcing too stringent of guidelines and maintaining the Gorelick Wall.

As far as applying to change the law, if the president, under advice from his WH legal counsel and the attorney general, believes he does not need that change, because of the AUMF, to proceed, why would he ?
1.6.2006 12:53am
Defending the Indefensible:
According to some of the participants here, the correct pronunciation of AUMF appears to be Ermächtigungsgesetz.
1.6.2006 2:42am
Defending the Indefensible:
The people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country. Viz. To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve.
1.6.2006 2:46am
KMAJ (mail):
DtI,

Pretty sad and offensive to see Nazi and Hitler demonization. It is beyond the pale.
1.6.2006 2:46am
Defending the Indefensible:
KMAJ,

If the administration and its supporters insist on interpreting the AUMF as an Enabling Act, that is beyond the pale.
1.6.2006 3:42am
Defending the Indefensible:
KMAJ,

For the record, I am not seeking to call names, but to draw fair analogies. There is a substantial distinction from the genocidal regime of Nazi Germany, nobody is proposing concentration camps or advocating final solutions. I do not think you or anyone in this discussion supports Hitler.

I do think the AUMF argument is terrible, it is a recipe for ending our republican form of government, and it is shameful that the administration would seek to create such an atmosphere of fear as to give it carte blanche to construe immunity of law to itself.
1.6.2006 4:18am
Diversity Hire:
Bruce Hayden:
Next, in a different thread, I think it is now apparent that the NSA, by necessity, does a lot of its surveilance of fiber optic transoceanic traffic on U.S. soil - because that is really the only place it can physically be done.


The cable are vital, but I don't think that means collection has to be done on US soil. The same traffic outbound from a US switch is available inbound on the overseas side. The US equipment is required to be CALEA-compliant. The equipment on either side are likely to be the same. That implies that the overseas switches are likely capable of running the CALEA software. Monitoring and intercepting traffic may be as simple as negotiating with the telecoms (e.g. global crossing) or their owners (e.g., the carlyle group) to get them to run the CALEA software (that they're running on the other end) and then forward the captured data to wherever the NSA (or whomever) wants them.

This isn't feasible for capturing all traffic, but for the 7000 or so simultaneous calls claimed, I can see how it might work.

The kind of surveillance described by Mr. Risen and the NYT could be implemented without being covered by or violating FISA. While I can imagine more comprehensive systems (and don't doubt they exist), such don't appear to be the subject of the NYT's story, the AG's statement, or Mr. Risen's book.

Plausibility is a different question that depends on one's faith in the President, his Administration, and the rest of the federal government. If you assume the NSA is as professional and committed to obeying the law as the FBI was with carnivore, then it's plausible (even likely) that pains were taken to stay within the law.
1.6.2006 5:09am
KMAJ (mail):
DtI,

I think sometimes in the heat of the moment, when we are passionate about things, we do not always think before we speak or type. I would no more attempt to compare someone, whose ideology is from the left side of the spectrum, with Stalin, Mao or the gulags for similar reasons that you stated above, I would not think they advocate such positions. Nazi references do not make for good exchanges because they tend to inflame rather than promote discourse.

I respect your right to your opinion of what the AUMF is, I do disagree, I see it as an authorization mechanism, not as an enabling mechanism. As far as I have read and heard, the NSA program has never targeted a US citizen as the initial contact. Any people in the US that have fallen under the NSA program got there because they had contact with a foreign terrorist organization or suspect. Once they made that contact, they became a person of interest. If you have documented proof that anything other than that occurred, I would be interested in seeing it. Once that contact has occurred, it may not have met the requirements for a FISC warrant. Simply contacting may not be enough for some judges, but, my contention is that it would be irresponsible to not follow up until, either they are cleared of complicity or it can be verified they are in collusion with terrorists. Such a following up process would certainly take more than 72 hours, it could take months or longer, 9/11 was planned years in advance. The big criticism from the 9/11 Commission was the failure to connect the dots, much of the reason for that was the Gorelick Wall and FISA, the congressional instrument that enforced that wall.

If Bush were targeting anti-war groups, like LBJ and Nixon did, I would join your concern. But if people in this country are contacting terrorists, I want to know about it.
1.6.2006 5:58am
Bruce Hayden (mail) (www):
I do agree that if you are going to tap fiber optic cable traffic, that technically it probably doesn't matter which end of the cable you tap, and that under U.S. law it would be better to tap from the non-U.S. end. But I am not sure if that is always feasible. Yes, maybe for a cable running to the U.K., but what about elsewhere? What other countries are going to allow NSA to review, say, 7,000 simultaneous calls, on a rotating, regular, somewhat random, basis? (I am hypothesizing that the U.K. is more obliging first because of its participation in ECHELON, and second because it is a relatively strong ally in the WoT)

Another question/point. It is not clear that CALEA would support that volume of surveilance. It must be remembered that CALEA is law enforcement oriented, and the requirement is really for a limited number of simultaneous taps. I didn't dig hard enough to find this, but it seems to have minimum volume requirements, and, as it is designed to benefit law enforcement (and not national security), I would expect this requirement to be quite low. Surely not in the 7,000 range, but probably closer to a handful at a time. Plus, CALEA is envisioned to be warrant driven, and, thus, to monitor a small number of specific lines for a (relatively) long period of time, versus a large number of lines for extremely brief periods of time. So, I would think that there is a distinct possibility that mere CALEA compliant software would not be sufficient for what the NSA is apparently doing (as usual, this is conjecture - I am just throwing this out for discussion).
1.6.2006 9:36am
Bruce Hayden (mail) (www):
Everyone keeps suggesting that the 72 hours period would cover the NSA surveilance. But as I read the statute, the 72 hours starts when the AG authorizes surveilance, and here, the surveilance, by necessity, starts before he can authorize it.

Could someone please let me know where I went astray here? Presumably, you all are talking about 50 USC 1805(f).
1.6.2006 9:48am
Medis:
Bruce,

You seem to be suggesting (as I gather AJStrata was suggesting) that the intent of the program is simply to monitor the communications of terrorists overseas, and communications involving people in the US are only incidentally captured. But as described by the Administration, it is actually the goal of the program to intercept communications with one end in the United States, not some incidental occurrence in the program. Indeed, Cheney said this in a recent speech:

"Another vital step the president took in the days following 9/11 was to authorize the National Security Agency to intercept a certain category of terrorist-linked international communications. There are no communications more important to the safety of the United States than those related to Al Qaida that have one end in the United States.

If we had been able to do this before 9/11, we might have been able to pick up on two hijackers who subsequently flew a jet into the Pentagon. They were in the United States communicating with Al Qaida associates overseas, but we did not know they were here plotting until it was too late."

So, I don't think it could be any clearer that the actual intent of the program is to monitor the international communications of people inside the United States. Incidentally, as an aside, Cheney is being more than a bit misleading in this statement, since we DID know about the two people to whom he is referring before 9/11, but had not followed up on our knowledge--but I digress.

KMAJ,

I, for one, want to note that I think you are raising a perfectly valid policy concern. It seems obvious to me that being able to monitor international communications with one end in the United States--or, for that matter, entirely domestic communications--without prior probable cause would give us a powerful tool for identifying agents of foreign terrorist organizations in the first place.

On the other hand, as you imply, such a program also raises legitimate concerns about possible abuses of this powerful tool, as well as basic privacy concerns. So, dealing with this issue requires a difficult and complicated balancing between legitimate concerns on both sides.

Accordingly, our Constitutional structure envisions a role for all three branches of government in dealing with such an issue. And I believe the real question before us is whether the President has attempted to annex the power of the other two branches by authorizing this program without going to Congress and without involving the courts. If so, I really believe there is no support in Hamdi for his actions.

But maybe he did not do so. Leaving aside the courts, probably the most pressing issue is whether he did in fact bypass Congress. The Administration's argument, as you note, is that Section 1809 of FISA doesn't make it a crime to conduct such surveillance as long as there is some statute authorizing the surveillance, and they believe the 2001 AUMF provides that authorization.

I won't belabor this point, but as we have frequently discussed here, the problem with that argument is that at least three additional statutes/Acts are relevant to this case. The first is 18 USC 2511(2)(f), which provides that the procedures in Title 18 and FISA are the "exclusive means" by which such surveillance can be conducted. The second is Section 1811 of FISA itself, which provides that these laws will be suspended following a declaration of war--but only for 15 days, and the legislative history makes it clear that the purpose of this provision is to allow the President to seek necessary changes in the law during that time. Finally, the USA-PATRIOT Act, which followed the 2001 AUMF, did exactly that: it amended FISA for the express purpose of giving the President the tools he would need to detect and prevent terrorist attacks.

So, I think it is plausible that the President was authorized by the 2001 AUMF to bypass FISA, notwithstanding 18 USC 2511(2)(f)--but only for 15 days, and only to give him time to seek changes in FISA. So, 15 days after the 2001 AUMF--or, at the very latest, when the USA-PATRIOT Act was passed amending FISA--I don't think it is plausible that the 2001 AUMF still authorized the President to bypass the procedures in FISA.

But, as you have noted, this issue has not yet been tested in the courts, and as far as the President himself is concerned, it will be up to Congress to decide. Still, I hope you can at least appreciate why those who are concerned about maintaining a separation and balance of powers are concerned about the President's actions in this case--namely, because he cut both Congress and the courts out of the matter even after Congress had in fact spoken on the matter post-9/11 in the USA-PATRIOT Act.
1.6.2006 9:53am
Medis:
Bruce,

That is correct--the 72 hour emergency provision gives them time to seek a warrant, but it does not authorize them to conduct such surveillance without probable cause in fact.

Of course, that was a policy decision that has been made in FISA as amended by the USA-PATRIOT Act. I think it is fair to ask whether that was a good policy decision, and whether there might be a better way to satisfy concerns about abuses of power and invasions of privacy. I also think it is clear that it is primarily Congress which is supposed to be making such policy decisions, although the 4th Amendment does take something of a stand on this issue as well.
1.6.2006 9:57am
jukeboxgrad (mail):
KMAJ, I find it amazing that you're willing to show your face here. I think most people with a sense of shame with have adopted a different handle by now.

You recently did something various people (including me) found highly dishonorable. Upon being outed, you quietly walked away from that thread, and took up posting in other threads here. Maybe you are assuming, probably correctly, that the thread containing your bad (and highly revealing) behavior was lightly trafficed, and that your trickery would pass mostly unnoticed. Trouble is, the thread is still there, so the stain on your reputation is still easily seen.

"If Bush were targeting anti-war groups, like LBJ and Nixon did, I would join your concern."

In other words I guess your complacency is based on your confidence that Bush would never do anything like this. There are many similar examples.

The road to totalitarianism does not, for the most part, consist of one huge leap. It is traveled one miserable step at a time. Tyrants rely on people like you, who can always find a reason to ignore any one particular step.
1.6.2006 10:15am
Michael B (mail):
"Tyrants rely on people like you, who can always find a reason to ignore any one particular step." jukeboxgrad

And unthinking sheep rely upon statements like yours. Statutory concerns can be reasonably framed, but this type of demagogic dullity qualifies as being precisely that.
1.6.2006 10:34am
Bruce Hayden (mail) (www):
As I understand it, those two phone calls right before 9/11 were from pay phones in Afghanistan, and it was the content of them, and their targets, that were relevant, and triggered (to late) some interest in the people called (because, of course, they were now dead).

So, let us hypothesize. Let's have OBL call Mohommed Jones in Chicago. And let us also assume that the NSA recognizes OBL's voice and records the conversation. My big question is whether the 72 hour period would apply to that conversation. I don't see how it could, as the AG didn't have the foreknowlege that it was coming in, so couldn't authorize it in advance, and as I read the statute, the 72 hour grace period only applies from the time that the AG authorizes surveilance up until authorized by the court, or 72 hours, whichever happens first.

Now, at this point, I do think that a warrant is required to further surveil Mohommed Jones in Chicago. And maybe that is what the problem is - no search warrant for Jones after receiving the call from OBL. But I remain unconvinced that that is the facts that we are dealing with.

We shall, of course, see as more facts become evident.
1.6.2006 10:39am
Medis:
Michael B,

But it is a historical fact that "tyrants" and other totalitarian regimes are sometimes instituted by a series of gradual, quasi-legal, steps. And while I don't think most people here actually want that to happen, it is fair, I think, to ask them how they intend to prevent that from happening. That question has at least two specific components: what limiting principles do they endorse on executive action, and what institutional limits do they endorse for the executive branch?

And if they cannot give a clear answer to those questions, and instead simply want to say that whatever the limits are, they are not yet here ... well, then that is indeed precisely the sort of attitude that reasonably concerns those who are worried about the gradual erosion of civil rights and liberties, and the gradual adoption of totalitarianism.
1.6.2006 10:44am
Bruce Hayden (mail) (www):
Let me add that a call from Mohammed Jones to OBL shouldn't really be that different from the call from OBL to Jones. If, as the President said, "If somebody from al Qaeda is calling you, we'd like to know why.", I would think that we would also like to know if you are calling al Qaeda.
1.6.2006 10:48am
Medis:
Bruce,

If I understand your hypo correctly, that is basically correct--we cannot lawfully surveil all of the international communications going into--or out of, eg, Jones calls OBL rather than the other way around--the United States, looking for a voice match to OBL. Similarly, suppose we knew an agent of Al Qaeda was somewhere in the United States, and we had a voice sample from this agent. We could not lawfully surveil all the domestic communications inside the United States, looking for a voice match for this agent. And so on.

I take it you are raising the issue of whether or not that sort of surveillance program should be lawful (I think you might be limiting it so only incoming international calls, but obviously it would be very helpful to be able to surveil outgoing calls as well as purely domestic calls). And perhaps you think it obviously should be lawful--but I don't think that is so obvious to a lot of other people.
1.6.2006 10:58am
Medis:
Bruce,

Sorry, we cross-posted--obviously you do think it should include outgoing calls. So, let me then ask you the next logical question: why not purely domestic calls, in a case where we suspect an agent of a foreign power is somewhere in the United States?
1.6.2006 10:59am
Michael B (mail):
Medis,

Your overly leveraged rhetoric won't work and doesn't apply. It reflects such a sweeping generalization that it succeeds only in being a non sequitor. Blow fish rhetoric is not a substitute for reasoned, well proportioned debate. Very far indeed from secretive or reflecting domestic, political/partisan spying efforts, the NSA program has been signed off on a monthly basis for something like thirty months, has had congressional oversight or acknowledgements, and has been targeted at international terrorist surveillance interest.

And again, the relevant, overall framework is the specific and detailed sets of facts (which we're still learning), the Constitutional and statutory interests, historical developments (e.g., legal, technology) and the full set of existential evaluations, threats, likely and foreseeable developments, etc.

Statutory concerns are perfectly reasonable and can be reasonably articulated within the known set of facts and circumstances. That is not what your demagogic zealousness is demonstrating. What's next, an allusion to the Reichstag fire?
1.6.2006 11:04am
AJStrata (mail) (www):
MEDIS,

You assumed I could not tell the difference between the WH and the media?

LOL! You are delusional my friend. I am not that stupid, and you definitely are not the smart!

No wonder you fell for the media spin (you did notice there were stories in the media about this?).

Sorry, but I like to debate with serious people about serious subjects. Flip comments from ego-padders just doesn't interest me.

Cheers, AJStrata
1.6.2006 11:04am
AJStrata (mail) (www):
JOA,

No, I did not leave it out - you missed it. NSA monitors terrorists overseas. Terrorist contact or are contacted by people in the US. NSA sees that contact. NSA now has lead on possible terrorists in the US, passes lead to FBI. Prior to passing lead to the FBI NSA may monitor multiple communications between the terrorist overseas and their US contact (to make sure they are not simply booking hotel rooms or rental cars).

FBI takes lead to FISA court, but only the FISA Chief Justice knows some or all of the probable cause is from NSA intercepting communications in the US WITH THEIR TARGET SUSPECT.

FISA Court Judges reject NSA lead based on their personal biases and disagreement with current law.

If I need to go slower, please let me know. But it was clear in my description NSA can easily get leads to contacts in the US if their overseas targets communicate with their US counterparts.

No warrant requires just as there is no warrant required to listen in on the mob boss being legally surveyed talk to the pizza hut to order a pizza, or one of his goons. Whoever falls into a legal surveillance is fair game.

Prove otherwise!
1.6.2006 11:12am
jukeboxgrad (mail):
Bruce, I find your posts very helpful and informative.

"The President has stated that it the foreigners who are being targeted."

He's stated a variety of things, which I take with a very big grain of salt.

I think it's widely accepted that we're harvesting phone/email lists from devices (cell phones/laptops etc) we grab from people we capture. I think it's understood that these lists we harvest include US persons. I also think we've been given sufficient reason to believe that these people are being monitored when they make overseas calls, and even if the call is not to a known AQ person. This is certainly not a FISA-compatible activity (even if the signal is acquired overseas). Pay close attention to the words of Gonzales and Hayden, and you notice that everything they say is highly congruent with the scenario I just described.

By the way, even if such a call IS to a known AQ person, FISA is still being violated (because the US person is a "target," to the extent the call was monitored on the basis of having the US person's phone number).

"The problem appears to arise when a foreigner being targeted calls someone in the United States (and therefore, presumably a U.S. Person in the U.S.)"

I agree with you that in the scenario you describe, there is an argument to be made that the US person is not being "targeted." But if the only operative scenario was the scenario you describe, there wouldn't be much value in harvesting lists from the devices we capture. It seems pretty obvious the value of those lists is that they identify US persons whom we then "target." And by the way, once that person is a target, I think it doesn't matter much (morally, legally or technically) who puts the dime in the phone (i.e., where the call originates).

"I think it is now apparent that the NSA, by necessity, does a lot of its surveilance of fiber optic transoceanic traffic on U.S. soil"

I completely agree. And this is much easier for them when it's done with the cooperation of US phone companies. Now we have reason to understand they are indeed getting such cooperation. This approach is infinitely easier than putting a bunch of guys in a steel cigar and hoping for the best.

"looking for calls to or from known foreign phone numbers"

As I've mentioned, I think there are also domestic numbers on that list. I think this is very important, morally, legally and politically.

"It appears to be 'Electronic surveillance' under 50 USC 1801(f)(2) since it was intercepted on U.S. soil."

Given that domestic numbers are targeted, then (f)(1) is violated, which means that the location of signal acquisition doesn't matter. In my opinion, this is a major reason why we're not bothering to move the taps to Europe. It's also obviously easier for us to do it here, for various practical reasons.

I think targeting domestic numbers is the big innovation in this program. I think the other innovation is US phone companies helping us in new ways, which means we can turn the sub into a museum. The targeting of domestic numbers is highly congruent with Gonzales admitting that FISA is being violated (because once US persons are targeted, point of acquisition becomes legally irrelevant).

I think Medis is making the same point I am.

"The problem here is that the conversation has already been recorded - before the AG has a chance of approving it (because the recording is done automatically, or, at a minimum, contemporaneously)."

I have a feeling this issue is not a big deal. My hunch is that the highly-compliant FISA court would happily work out various practical solutions. One solution is that a human would not listen to the recording until after the AG-FISA process has been engaged.

"If we go on what the President said, that the surveilance is essentially being triggered by detecting an enemy at one end of a call"

I don't think the president (or anyone else) has come anywhere near assuring us that the program is limited to only the scenario you just described. I think what the president said is more like this: "if we spot your phone number on the cell phone of an alleged bad guy, we're going to start listening to you when you talk overseas, to that bad guy or anyone else."

That's what I think the president has admitted doing. I also think there's no reason to assume he's not also doing far more, such as monitoring purely domestic communications of US persons. The AUMF/Article II arguments would ostensibly empower him to do that, too.

Diversity,

"I don't think that means collection has to be done on US soil."

I agree with you that we could possibly (or also) be doing collection overseas. But I've explained why I think we're doing it here. Bruce mentioned practical reasons why doing it here is easier.

"The kind of surveillance described by Mr. Risen and the NYT could be implemented without being covered by or violating FISA."

Only if you ignore the business about lists of US persons.

"If you assume the NSA is as professional and committed to obeying the law as the FBI was with carnivore, then it's plausible (even likely) that pains were taken to stay within the law."

I generally agree with you. But here's what I think happened. At some point early on, we captured the very first cell phone from an alleged bad guy. It contained the number of Ahmad in Brooklyn. Bush said "I want to know who Ahmad is talking to, especially when he calls overseas." Never mind that Ahmad is a US person, and might only be the (alleged) bad guy's hairdresser.

Bush was not in a position to show probable cause that Ahmad is a terrorist (and he didn't want to deal with the hard work of changing the law), but he decided to snoop on Ahmad anyway. It was very tempting and easy, especially given compliant US phone companies, and especially given so much traffic passing through a very small number of points in Manhattan. So here we are.
1.6.2006 11:15am
Just an Observer:
AJStrata,

Please provide the statutory reference that FISA applies to the FBI but not the NSA.

Hint: There is none. FISA applies to both those agencies and their employees, not to mention the Department of Agriculture, the Rotary Club, you and me.
1.6.2006 11:17am
Medis:
AJStrata,

I think you have an earlier contender for the "Most Unintentionally Ironic Post of the Day" Award.

Michael B,

Again, I don't think it is somehow unfair to ask people to articulate limiting principles and institutional limits. Indeed, you seem to be discussing such matters in the last sentence of your first paragraph. So, I don't think you really believe that such questions are unfair.
1.6.2006 11:18am
AJStrata (mail) (www):
Noah,

repeating it does not make it accurate. I understand YOU BELLIEVE Bush "targetted" US citizens. Go back and read all the statements very clearly and do not try to interpret. Read them literally, as if they say what they mean to say.

What the administration said is it intercepted communications with people in the US when monitoring terrorists overseas. In the legal world, which I assume someone on this sight has experience in, that is the 'target' of the surveillance. When monitoring a target, all communications are monitored - regardless of who is on the other end of the line.

Now everyone has said that one end of the monitored call was a known or highly suspected terrorist. Just admit this and get over it.

Everyone has stated the role NSA plays is monitoring Terrorists overseas, and that is a legal role.

QED: the terrorist overseas is the target, and anyone who falls into the terrorists sphere is fair game to identify. Even if they live in the US.

Now, if you would read the Washington Post articles with all the comments from the FISA judges, you will see something interesting.

They are not complaining that Bush went around FISA. They are concerned NSA intel was used to gain FISA warrants. OK, do I need to explain to you how a logical person can safely conclude that the use of NSA intel in obtaining a FISA warrant would be to establish probable cause? Gawd, I hope not.

So, if the issue is not the one being reported in the press and now imprinted on easily impressioned minds (Bush going around FISA) and only is a revolt by 3 of the liberal FISA court judges on usintg NSA intel as probable cause - then you folks are simply focused on an imaginary issue!

The FISA judges have expressed over and over again their resistance to removing the Gorelick Wall. The leftward ones have now openly stated they are upset over NSA intel being used to argue probable cause in a gaining a FISA warrant. NSA has the legal right to monitor terrorists overseas and anyone who contacts them.

If they detected contacts in the US and passed these on to the FBI who went to FISA, then there is no constitutional issue.

Now prove this is not the case!
1.6.2006 11:24am
Michael B (mail):
I indicated the full set of conspicuously relevant contexts within which they are fair and within which they can be reasonably framed:

"... the specific and detailed sets of facts (which we're still learning), the Constitutional and statutory interests, historical developments (e.g., legal, technology) and the full set of existential evaluations, threats, likely and foreseeable developments, etc."

Those relevant set of contexts help to define the "limiting principles" both in general, existential terms, but also more specifically and within statutory framings.
1.6.2006 11:28am
jukeboxgrad (mail):
Bruce,

"the AG didn't have the foreknowlege that it [the call from OBL to the US] was coming in, so couldn't authorize it in advance"

I suggested one solution (get FISC to agree that it's OK, as long as a human doesn't listed to the tape until after proper steps are taken). Here's another very similar solution: the AG issues an authorization that says "tape any calls by OBL, including calls to US persons in the US. This is OK as long as the US person is not your target, i.e., you don't know who OBL is calling until the call is made. Don't listen to the tape until I have a chance to issue another proper authorization. (It's already typed up, so what won't take long.) Then listen to the tape and apply for a FISA warrant."
---
Michael,

Along the lines of Medis's excellent response to you, here's a question for you (borrowed from Andrew J. Lazarus). Can the President, using his Article II (and/or AUMF) powers, order the manufacture, deployment, and use of chemical weapons, even if Congress passes laws and ratifies treaties prohibiting such manufacture and use?

The arguments being used (Article II/AUMF) to defend the president could be used to justify just about anything, including what I just described.

To borrow words from Medis, I am asking you to "articulate limiting principles and institutional limits."

You claim the NSA program is "very far indeed from ... reflecting domestic, political/partisan spying efforts." How do you know? If it was indeed "reflecting domestic, political/partisan spying efforts," how would you find out?

By the way, is this proper?
1.6.2006 11:43am
Michael B (mail):
From Oxblog, and via Solomonia, following is yet another relevant context since it adequately frames critical aspects the current situation:

Bush paralleled with Truman

Attempting to equate, or virtually so, the President with the domestic political spying that resulted in Watergate is deserving of nothing more than a derisive scoff unless and until things like domestic political spying is uncovered. The Truman comparison, on the other hand, brings a proportional and salutary sense to the relevant set of contexts.
1.6.2006 11:46am
Medis:
Michael B,

I agree, that is a good list of places to look for information relevant to limiting principles and institutional limits. I'd particularly highlight the Constitution, since it is the supreme law of the United States.

But that is just a description of where to look for answers to these questions, not an actual answer to these questions. And again, I think it is fair to ask people to articulate their answers to these questions.
1.6.2006 11:48am
Michael B (mail):
jukeboxgrad,

The question is, how do you know otherwise? This accusative, presumptive tone needs to be grounded in firmer stuff than you're announcing. Of course concerns and oversight are warranted, but concerns and oversight as viewed from the flip-side (e.g., the existential threats) are warranted as well. It's a balancing act; formally in terms of thought and analysis, a dialectic needs to be informed from all sides of the debate, not narrowly and not in an imbalanced manner.

You're long past the point where you're speculating, virtually, in near-theological terms. How do we "know" Bush is not Count Dracula? Can we be sure? 100% sure? Enquiring minds want to know. Someone who signs off on this program every month for thirty consecutive months is not attempting to keep this a secret. Someone who invites members of congress in for reviews is not attempting to keep this a secret.

If you have contrary evidence, produce it. Otherwise, bare minimum, admit the speculative qualitive involved. That's really all I'm indicating, your framings and insinuations are hugely leveraged for rhetorical effect. Yes, we may have a Reichstag fire incident and we can speculate about that all we want, but support it with concrete evidence or at least admit to the speculative and highly leveraged nature of that type of rhetoric.

Medis,

Yes, certainly those are general references, not highly specific or highly detailed, but they certainly are highly relevant, all of them.

Good morning to you, later.
1.6.2006 12:05pm
Noah Klein (mail):
AJ,

I am not repeating fantasy or whatever else you imagine. I am reading clearly what the AG said in his press briefing. If you want it one more time here it is:

"Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress."

I hope I am not being invective or cruel here, but can't you read? It is as plain as the nose on your face. FISA only applies to the conducting of intelligence where U.S. persons are the target. This is known not only because the law was created after numerous abuses of Americans' privacy by LBJ and Nixon, but also because the law says so.

(f) “Electronic surveillance” means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

Do you think that the law states that a court order is required for U.S. persons, because the people who created the law wanted to make themselves feel good?

The hypothetical that you brought up (GUESS WHAT!) we know it has been happening for a LONG TIME. Please read the article by Larry Sloan, which was published in 2000, that Professor Kerr provided to the blog. It would not be new, interesting or controversial if this is what the program was. Since it isn't what the program is, it is new, interesting and controversial. This why the NYTimes thought they could make some money publishing it.

Finally as to your nonsensical belief that the FISA judges have no idea where the information that they use to justify the probable cause that this person is an agent of a foreign power. Here once again is the law:

4) a statement of the facts and circumstances relied upon by the applicant to justify his belief that
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;

The FISC in this case wants to ensure that the NSA did not illegally obtain the information that they used to justify other or later surveillances.

Where do you get your information or do you just make it up as you go along?
1.6.2006 12:09pm
Medis:
Michael B,

I gather you have left, but I wanted to note one general point. I think the precise problem is that it is not enough to acknowledge that some unspecified limits exist. Indeed, it is not enough to list a broad range of potential sources and say these unspecified limits can in an unspecified way be derived from unspecified material within this list of sources.

And the precise reason such answers are not enough is that as long as these limits remain unspecified, they really are not limits at all.
1.6.2006 12:11pm
Medis:
Noah,

Of course AJ is just making his scenario up, and that he is ignoring everything the Administration has actually said. He even admits as much, just in different terms (he calls it "reading between the lines"). Indeed, he also admits as much when he proclaims that rather than offering any evidence for his hypothetical scenario, we have to prove him wrong (where, apparently, the Administration's own words do not count as evidence).

Of course, it is hard to take that seriously, and I am not even sure AJ intends it to be serious.
1.6.2006 12:15pm
Noah Klein (mail):
Michael B.,

"Someone who signs off on this program every month for thirty consecutive months is not attempting to keep this a secret."

First, as to your point here, the president was obviously trying to keep this secret. This is why he classified it and also why we didn't learn about it until just last year. Finally, that is why he only informed a limited number of Congress, not even informing the whole intelligence committees.

Second, you appear to assert that the executive branch review of executive actions is enough to be called oversight. I hope I am stating your opinion correctly. In my opinion, many others on this blog, and I am pretty sure the founders of our republic, it is not. The reason they made it so that one branch can check the others is because the did not just one branch to conduct itself without attempting to appropriate greater powers. History, which they were relying on, bears this out. It happenend in Rome and Athens. Even in the British system, the Brits over a long period of time wrested control of their government from their King. I do not trust the executive, not just this executive, but any executive. I do not trust them, because it is a well known fact that power corrupts. This why the executive, as the other branches, have many checks from a variety of different sources.

Noah
1.6.2006 12:21pm
Defending the Indefensible:
KMAJ wrote:

I respect your right to your opinion of what the AUMF is, I do disagree, I see it as an authorization mechanism, not as an enabling mechanism.
Fallacy of definition.
1.6.2006 12:46pm
Defending the Indefensible:
I think it is important to distinguish an act which enables or authorizes a particular activity from an "Enabling Act." The choice of wording (enable vs. authorize) is not an essential distinction (and as a distinction it is without a difference), but the assertion that such an act authorizes WITHOUT particularity.

The reliance upon the AUMF to confer immunity of law to the executive is precisely to utilize it as an Enabling Act.
1.6.2006 12:56pm
AJStrata (mail) (www):
MEDIS,

" But as described by the Administration, it is actually the goal of the program to intercept communications with one end in the United States, not some incidental occurrence in the program."

Prove this statement. The statements I have seen all say we monitor terrorists overseas, INCLUDING communications with one end in the US (incidental as you correctly called it). I also think your implying more than was said simply because the administration is pointing out there is a natural concern regarding calls with one in the US. Not that was the focus of the NSA (it was not), but that it was the area OF DISCUSSION!

Now prove your position this program was (illogically) only focused on communications with one end in the US!

That is so laughable it is ridiculous! So what about contacts in Europe! Well, we know there were some because they stopped attacks in the UK.

Well, at least you are beginning to see the light and beginning to back peddle - awkward as it is.
1.6.2006 12:56pm
Bruce Hayden (mail) (www):
In my Mohammed Jones / OBL conversations, I was presupposing that OBL was the target, and not Jones. And in that case, I don't really see a difference between OBL in a cave on the Afghani/Pakistan border calling Jones in the U.S., and Jones here calling OBL there. And at the point where there is probable cause to get a warrant to target Jones, as residing in the U.S., I fully support that a search warrant is needed. At this point, I remain unconvinced that Jones would be targetted by the NSA without such. But then, all the facts aren't out yet.

There is, of course, a period of time between when Jones becomes of interest to the NSA, et al. (for example, after that first call from OBL), and when there is probable cause to support a warrant for tapping his phone or, indeed, targetting him. I am a bit uncomfortable there in either direction. On the one hand, I don't like the idea of surveiling a person (presumably, until proven otherwise, a U.S. Person) in the U.S. without a warrant. This so obviously falls under 1801(f)(1). On the other hand, I don't see how we get from Jones being a person of interest to having probable cause without targetting him. Possibly, by turning the information over to the FBI and letting them utilize other means - but that takes time, and, we don't always have time. Plus, as alluded to elsewhere, some FISC judges don't seem to like NSA evidence being utilized for FISA warrants.

Jukebox:

50 USC 1805(e) has some interesting limits on the time limits for warrants, esp. in how it interacts with 1801 (a) and (b). It appears that we could get surveilance warrants against Al Qaeda for 90 days, OBL for 120 days, Jones for 90 days (assuming probable cause), and North Korea for one year. But then, we can renew for North Korea indefinately (in one year renewal chunks), but are limited to one year (in 90 day chunks) for Al Qaeda, as long as the judge finds "probable cause to believe that no communication of any individual United States person will be acquired during the period", one year for OBL (in 120 day chunks), and indefinately for Jones (in 90 day chunks). Weird.

Which is a long way of saying that getting and maintaining a surveilance warrant against Al Qaeda, OBL, et al. is questionable.
1.6.2006 1:06pm
AJStrata (mail) (www):
JOA

"Please provide the statutory reference that FISA applies to the FBI but not the NSA. "

Why? I never made that claim. I will go slower this time....

NSA 'targets' a terrorist overseas (let's call him OBL) for surveillance. They detect communication with their 'target' OBL and a person in the US called Atta 2.0. Now the 'target' of the investigation is OBL - not Atta 2.0. Atta 2.0 is simply someone on the other end of OBL's communications.

The analogy is the Mob boss being surveyed under warrant. You do not need a new warrant for evert person who talks to the Mob Boss while under warranted surveillance.

Are you a legal expert or not? Do you understand the difference between the target of a warrant and those incidentally caught up in the surveillance the warrant authorizes????
1.6.2006 1:09pm
AJStrata (mail) (www):
NOAH,

Try using the entire context

"Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress."

You need both. Yes, hearing even one end of a conversation is illegal in the US - unless you are monitoring terrorists overseas as part of your constitutional and statory authority.

Duh. Do lawyers usually take only half the words of a statement in order to get half the facts and be half wrong?????
1.6.2006 1:15pm
Bruce Hayden (mail) (www):
I should add a key to my last post where I was looking at time limits on warrants under 50 USC 1805(e). Under 50 USC 1801 (a) and (b), I see:
- North Korea defined as a "Foreign Power" under 1801(a)(1);
- Al Qaeda defined as a "Foreign Power" under 1801(a)(4), though possibly under (3),(5), or (6) too before the fall of the Taliban;
- OBL defined as an “Agent of a foreign power” under 1801(b)(1)(a); and
- Jones defined as an “Agent of a foreign power” under 1801(b)(2), or, if not in the U.S. legally, 1801(b)(1)(b).
1.6.2006 1:22pm
AJStrata (mail) (www):
MEDIS,

AJ is serious, very serious. He just doesn't take your speculation serious. Just because I don't take you seriously means I don't take the issue seriously.

You need to grant all the statements to date (complete, unedited and in their totality) demonstrate the targets for the surveillance were terrorists overseas. We have to take all the people at their word this is the case.

Trust me, if it was not the case, the Democrats briefed on this would have leaked this long before now.

But in any event, if your interpretation is wrong and mine is right, admit that this issue would disintegrate. If the targets were only the terrorists overseas, and when a person in the US was detected in contact and determined not to be some innocent contact (again, the hotel booking example) the lead was passed to the FBI, then there would be no problem to this point. No issues.

If then the FBI, properly, took the lead to the FISA court to monitor this suspect, now 'the target' of a warranted surveillance, that would be proper too.

And if, heaven forbid, I am right and some leftwing judges discovered some of the evidence coming to them as probable cause was NSA intel and they balked and talked. Then you would have to agree the issue is not with Bush, but with the balking judges.

Now you can agree, simply for arguments sake, this is a reasonable scenario, and just as likely as your 'theory' Bush targeted US people for monitoring!

Go ahead, admit it is not an unrealistic scenario.
1.6.2006 1:26pm
Noah Klein (mail):
AJ Strata:

You said:

" understand YOU BELLIEVE Bush "targetted" US citizens. Go back and read all the statements very clearly and do not try to interpret. Read them literally, as if they say what they mean to say."


I was pointing out, pretty successfully since you haven't refuted what I said, that NSA program in question DOES TARGET U.S. CITIZENS.

The AG's point that the program was authorized by another statute, even though FISA would have applied, as he clearly says, was the LEGAL justification for it. I have gone through the AG's statment sentence by sentence in another thread and demonstrated that the AG makes the argument: Yes, FISA would have applied, but for the 2001 AUMF. I disagree, but that's not what you are arguing. You have said many a time that what the AG is wrong and that the NSA was not targeting U.S. persons. I was demonstrating that you do not know how to read.

Noah
1.6.2006 1:32pm
AJStrata (mail) (www):
Bruce Hayden,

You and I see this the same way. You are much more the diplomat (my tolerance level for stubborness died years ago). I too was initially concerned about that period between when they detect the US contact point and then decide to pass it on to the FBI-FISA for internal surveillance.

But the truth is the monitoring of the prime target is still valid. So if the US contact has more communications with the overseas target, that is fair game. Plus, there is nothing stopping the NSA from passing the lead to the FBI and getting an answer back on a quick background check(e.g., no, that's the front desk of the holiday Inn). What the NSA cannot do (and wouldn't do I am confident) is monitor the calls of the US contact, in essence making them a 'target'.

So there is reasonable and legal conditions for that interim period.
1.6.2006 1:35pm
AJStrata (mail) (www):
NOAH,

Sorry, this court rejects your argument as incomplete and not addressing all the available information.

Squinting to see what you want to see doesn't count. Bush and his administration have clearly said the NSA was monitoring Terrorists overseas, and there were contacts with these targets and CONTACTS in the US.

Now, are you going to prove it for real? I means, simply saying you did is not proof!

I posted how the AG's exact same words could read to say monitoring communications of a person in the US would require a warrant EXCEPT when they are caught in a lawful surveillance (other statute and law) of another target!

Right? Just answer yes or no and then we can move on to whether their was lawful surveillance of terrorists overseas.

The point is you can be monitored in the US without a warrant when you communicate with someone who is the target of a warrant - correct??

Come on legal eagles, I would really, really like to know the answer. Is it legal to monitor communications of a US citizen when the communications being monitored are those with a target of a valid, legal warrant for surveillance....
1.6.2006 1:44pm
Noah Klein (mail):
Bruce:

As I read FISA and its definitions you are right.

AJ:

Why do you this has become an issue? If you really think that people who leaked, the Republican-led committee who is going to investigate it and all us who oppose the NSA program as publicly known, are merely doing this because we have nothing else to do, then you are very mistaken.

The people who leaked this had operational knowledge of the program, the judges (except for the presiding judge) on the FISC did not have operational knowledge of the program. That is why they are so up in arms about it. They didn't leak it, because they were not told of it. Thus somebody else had issue with it and therefore you hypothesis is not only unrealistic it is illogical.

Finally, as to point that the Democrats would have leaked this if it was illegal or they thought unwise, they don't just break, unlike some of their Republican brethen. They especially would not break the law when national security is involved. They were given top secret clearances, because both Congress and the Administration deemed them to be WORTHY of the clearances. Although, it has been demonstrated in numerous news reports that they had some issues with the NSA program in question.

Please I am begging you either offer up some kind of substantive reason why this program which targetted U.S. citizens is legal or leave.

Noah
1.6.2006 1:45pm
Noah Klein (mail):
AJ:

As to your last question of whether you can listen in on the communications of U.S. person when the other end is the target?

YES! I have said on numberous posts.

As to assertion that:

"I posted how the AG's exact same words could read to say monitoring communications of a person in the US would require a warrant EXCEPT when they are caught in a lawful surveillance (other statute and law) of another target!"

NOOOOOO! That is not a common sense reading of what he said. The AG clearly said that this was not some other kind of surveillance. If you finish the paragraph, you can clearly see that what he saying is that the other statute that authorizes the NSA to target U.S. citizens is the AUMF. In fact, (I may be wrong) but I do not think that there currently exists any statute that limits NSA into who they can listen to overseas. But there is that pesky little FISA, which limits who they can listen to in the U.S.

How about this where does the administration say they are targeting foreigners with this program?

Noah
1.6.2006 1:53pm
Bruce Hayden (mail) (www):
AJStrata

One problem I have with intercepting communications between, in my exaple, OBL and Mohammed Jones (here in the U.S.) is that while that is logical, it may not be legal.

The problem is that it is highly likely that the intercept, for very pragmatic reasons, is being done in the U.S. - most likely at a switch fairly close to where the cables go overseas, in, for example, New Jersey, for calls leaving the East Coast.

The problem is that brings it under “Electronic surveillance” under 1801(f)(2) which has two basic requirements: (1) interception in the U.S. (2) of someone in the U.S. (and implied (3) without their consent).

As I see it, the critical point here is (1). Absent that, 1801(f)(1) would apply, and that requires essentially that the person in the U.S. be known, be targetted, and be here legally. None of that applies to 1801(f)(2). Indeed, under (f)(2), the person may have entered the country illegally with intent to participate in another 9/11 level act of terrorism, but since he is here, if OBL calls him, or he calls OBL, intercepting that phone call here in the U.S. would seem to be “Electronic surveillance” under 1801(f)(2) and, thus, requires a warrant (even if OBL is the target).

What I think this points out (IMHO) is that FISA was not well designed to meet the demands of combatting terrorism.
1.6.2006 2:11pm
Medis:
Noah,

AJ isn't going to be stopped because he is willing to ignore anything that contradicts his pet theory, and is willing to overlook the fact that he has no support for his pet theory. If someone can confront that situation and not yield, nothing we can say will make a difference.

AJ,

I said: "But as described by the Administration, it is actually the goal of the program to intercept communications with one end in the United States, not some incidental occurrence in the program."

You said: "Prove this statement."

For you to ignore at your leisure:

Gonzales:

"The President has authorized a program to engage in electronic surveillance of a particular kind, and this would be the intercepts of contents of communications where one of the -- one party to the communication is outside the United States. And this is a very important point -- people are running around saying that the United States is somehow spying on American citizens calling their neighbors. Very, very important to understand that one party to the communication has to be outside the United States.

Another very important point to remember is that we have to have a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. We view these authorities as authorities to confront the enemy in which the United States is at war with -- and that is al Qaeda and those who are supporting or affiliated with al Qaeda.

What we're trying to do is learn of communications, back and forth, from within the United States to overseas with members of al Qaeda. And that's what this program is about."

The Moschella Letter:

"As you know, in response to unauthorized disclosures in the media, the President has described certain activitics of the National Security Agency ("NSA") that he has authorized since shortly after September 11, 2001. As described by the President, the NSA intercepts certain international communications into and out of the United States of people linked to al Qaeda or an affiliated terrorist organization."

And Cheney:

"Another vital step the president took in the days following 9/11 was to authorize the National Security Agency to intercept a certain category of terrorist-linked international communications. There are no communications more important to the safety of the United States than those related to Al Qaida that have one end in the United States."
1.6.2006 2:15pm
Noah Klein (mail):
Medis:

I realize I may be beating my head against a wall. Yet you and I are the only people left to try and reason with the people who won't accept the obvious. We have beat back the ridiculous arguments of people like Polaris. I am just hoping we can do it again with AJ.

Noah
1.6.2006 2:19pm
Medis:
Bruce,

I'm not sure you saw my question or whether you answered it already, so I wanted to ask again.

Whether or not it is currently legal under FISA, do you think it would be a good idea for the NSA to be able to surveil all domestic communications in the United States, looking for a voice match to an agent of a foreign power they believe might be in the United States?

And I don't ask this rhetorically--I think some reasonable people would say "yes".
1.6.2006 2:20pm
Bruce Hayden (mail) (www):
Let me add to my last point (that FISA was not well designed to deal with terrorism), that a strict reading of FISA would appear to hamstring the Administration in its attempt to combat terrorism. I am not talking about whether they should get warrants to target U.S. Persons, because (IMHO) they probably should, but rather, it would seem to preclude recording conversations when a target outside the U.S. calls someone here - and the interception is being done here.

And so, I am somewhat sympathetic to their claim that AUMF or Article II should give them this power (and, thus, that FISA has to be read in combination of these two).
1.6.2006 2:23pm
Medis:
Noah,

To be clear, obviously I am not asking you to stop confronting AJ's assertions with logic and facts, since neither am I. I was more just suggesting that any request to him is unlikely to go answered.
1.6.2006 2:23pm
Just an Observer:
Noah,

For the record, I too have tried to confront AJStrata with logic and facts. And he has never responded to substantive arguments in kind, but rather with more rhetoric.

Remember the old New Yorker cartoon: A dog is seated at a computer. He says, "On the Internet, no one knows you're a dog."

Such is the blogosphere. There are islands of rationality, VC being a notable example. AJStrata's own blog is a species at the other end of the spectrum.
1.6.2006 2:33pm
Medis:
Bruce,

But requiring them to get warrants for domestic filtering, or for targeting US persons, also reduces the Administration's power to fight terrorism. All of this represents a balance between that value and competing values involving concerns about abuses of power and privacy.

So, why is your preferred balance, rather than some other preferred balance, the right stopping point for arguments based on the 2001 AUMF and Article II?
1.6.2006 2:49pm
Noah Klein (mail):
JOA:

You are very correct and I am sorry for not including you. You have been a very good voice of reason. I would also like to say that I have seen posters on the other side of my opinion who have fought for their position with reasoned arguments. I just don't see it from AJ.

Noah
1.6.2006 3:01pm
KMAJ (mail):
Medis,

I think we are engaging in a circular argument that will still hinge on a future court ruling. I do think it will mostly center on what the AUMF actually is. If it is upheld the president's stance is correct, than there is no bypassing of Congress or FISA. For strictly analytical purposes, let me hypothisize that the executive branch is only interpreting this authorization in the narrowest of terms, specifically, only regarding terrorism, and not any other areas. He set up surveillance on known or suspected terrorist targets overseas. These are the primary targets, any surveillance that proceeds from that are ancillary or secondary. As such, the US person caught calling in that net is not targeted without reason or randomly. That initial contact may not generate sufficient cause to get a warrant. Are you proposing that they stop monitoring that person until they are sure one way or the other ?

I think in defense of the NSA program, with what little we know, there are three salient points about oversight:

- the program is reviewed every 45 days by the DOJ for abuse, I have not heard of any cases of abuse being alleged.

- a limited number of congressional intelligence committee members are informed and updated, if these members are concerned about the program, the Congress provides the vehicle for them raise concerns without violating secrecy.

- the lead FISC judge has been consulted and reviewed on the program, this judge also has the ability and vehicle to raise any or all concerns that may arise.

Some may claim he should inform all members of the intelligence committees, but that would seem to be contradictory to keeping things classified, especially as leak prone as Congress is. Due to that Senate Intelligence Committee memo, I think it makes it even more justified to limit the number of congresspersons who are aware. We hear much talk about executive powers, but no one seems to want to talk about legislaive branch overreach, which should also be a concern, as it was with the Founders.

Experience had demonstrated that harm was to be feared as much from an unfettered legislature as from an uncurbed executive and that many advantages of a reasonably strong executive could not be conferred on the
legislative body.

C. THACH, THE CREATION OF THE PRESIDENCY 1775-1789 chs. 1-3 (1923)


Madison shared that fear of a legislative branch absorbing all power into its vortex.

I now digress to an element of this debate that I have no seen addressed, and only came to my attention when reading a speech by Theodore Olson. That subject being the expansion of judicial branch powers beyond anything the Founders intended or foresaw. He makes a powerful case for the judicial branch having usurped both legislative and executive power.

The Tex Lezar Memorial Lecture

One could make the argument that the FISC is another extension of judicial power, clearly they are an instrument of protecting the Gorelick Wall, in direct conflict with the recommendations of The 9/11 Commission.

We agree this is a very difficult balancing act, one that I do not presume to have the answer to nor to presage what the courts will decide, but I fear the politics involved is only making it more difficult.
1.6.2006 3:15pm
KMAJ (mail):
DtI,

I agree with your semantic analysis, whether one chooses enable or authorize, the difference is in the definition applied to the words. You seek to define it in terms that support your position with 'immunity from law'. I have not seen that claim made anywhere. I do believe the facts show that the executive branch has interpreted this 'authorization' very narrowly to only terrorism related intelligence that is initially targeted overseas. If you can provide any documentation that shows otherwise, I would be interested in seeing it.
1.6.2006 3:32pm
MCL:
Quick Question: Did the AUMF effectively designate Al Qaeda to be a foreign power? If so, doesn't that change the context of the AG's comments?
1.6.2006 3:36pm
Noah Klein (mail):
KMAJ:

In your first paragraph, you state something which Medis and I have for a while be trying to demonstrate to you and AJ as has been shown to everybody else in this country. You say " He set up surveillance on known or suspected terrorist targets overseas." This is not what AG Gonzales said. He said the target of the searches were U.S. citizens. This is why he says FISA would have applied, if not for the 2001 AUMF.

In terms of review and oversight. I disagree with you that a DOJ review is sufficient to maintain a check on the executive. You point out that nine other people were informed.

This includes the chairman and ranking member of the intelligence committees, the minority leaders of the House and Senate, the Speaker, Majority Leader of the Senate and the Presiding Judge of the FISC. You also say that these nine other people have the power to check the executive. I disagree with you. Committees and not individual members have oversight authority. How can an individual member stop and executive action, if that member is not allowed to inform his committee of that executive action.

Furthermore, I do not think the presiding judge of the FISC has the authority to stop an executive action. Any judge, even the presiding one, on the FISC is only legally allowed to rule on whether the government has probable cause to believe a target of their surveillance is an agent of a foreign power. Judges cannot act on their own and stop an action they think is illegal. They need somebody with standing to challenge what the government is doing. This cannot have in the FISC, because they do not have adversarial hearings.

Noah
1.6.2006 3:42pm
Medis:
KMAJ,

As an aside, I certainly do not think that only the executive can abuse its powers. Indeed, wanting all three branches involved in some way is in part motivated by that observation.

Anyway, I have to disagree with your factual setup. First, the Administration has in fact explicitly claimed that it bypassed FISA procedures when FISA would have required a warrant, citing the authority of the 2001 AUMF. So, while that may or may not mean that they bypassed Congress, they certainly claim to have bypassed FISA's procedures.

And indeed, if they only did what you described, then they have only been doing what they did in the past--and they would not need the 2001 AUMF for that, nor for that matter a series of Presidential orders, ongoing legal review, and so on.

However, what they have actually stated is that the President authorized a new program intended to monitor communications between people in the United States and people outside the United States, and it is that program which would have required FISA warrants if not for the 2001 AUMF. And, of course, that claim makes sense (meaning such a program might indeed have required FISA warrants).

As an aside, I'm not sure what you think the informed members of Congress or the FISC Chief Judge were actually empowered to do with the information they were given. I think the only thing they could do was express their concerns back to those who briefed them, but otherwise they could not take any action.

Anyway, given the actual setup, I agree that there are a few notable issues which have not been addressed by a court. One salient question is whether the 2001 AUMF not only satisfied 50 USC 1809, but also whether it implicitly repealed both 50 USC 1811 and 18 USC 2511(2)(f), and also whether it somehow prospectively negated those laws as amended by the USA-PATRIOT Act.

If the 2001 AUMF did not do all of those things, then it would seem the President did in fact order violations of federal law. The question would then be whether these federal laws, as amended by the USA-PATRIOT Act, are unconstitutional because they violate some exclusive Presidential power.

I also do not claim to know what a court would do with either of those questions. But I do think it is a tough series of arguments for the Administration, in light of prior decisions. But one never knows exactly how a new case will be resolved.
1.6.2006 3:43pm
Just an Observer:
MCL,

For purposes of evaluating Al Qaeda under FISA, it is not necessary to imply anything from the AUMF.

The plain-text definition of "foreign power" under the FISA statute includes 50 USC 1801(a)(4) -- "a group engaged in international terrorism or activities in preparation therefor."

Under this definition, it did not take the AUMF to consider Al Qaeda as a "foreign power."
1.6.2006 3:51pm
Noah Klein (mail):
MCL:

The AUMF:
"That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Thus the AUMF made AQ the target of our war against terrorism. Furthermore, FISA states that a terrorist organization is a foreign power. Yet that does not change the context of what the AG said. A U.S. person remains a U.S. person even if they become an agent of a foreign power.

KMAJ:

I also believe that administration is applying the AUMF against terrorism and it related activity. Yet the administration is still broadly interpreting the authority given to him under this statute as overruling FISA and it applicability to surveillance targeting U.S. persons speaking to other people outside the U.S.

Noah
1.6.2006 3:51pm
Medis:
MCL,

I'm not quite sure what you have in mind. There is no doubt Al Qaeda is a foreign power under FISA, because that includes "a group engaged in international terrorism or activities in preparation therefor." In any event, the 2001 AUMF makes no specific mention of Al Qaeda, and it applies to "those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." So, it need not apply solely to foreign powers.
1.6.2006 3:51pm
KMAJ (mail):
MCL,

One must look to the full AUMF text:

S. J. RES. 23

JOINT RESOLUTION
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

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

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

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

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

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it


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

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the `Authorization for Use of Military Force'.

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.
Passed the Senate September 14, 2001.

Attest:

Secretary.

AUMF


I think it is a reasonable interpretation to assume that Al Qaeda would fall under the designations organizations and persons in the AUMF.
1.6.2006 3:53pm
Michael B (mail):
"And the precise reason such answers are not enough is that as long as these limits remain unspecified, they really are not limits at all." Medis, referring to the general parameters of the debate defined as: "The specific and detailed sets of facts (which we're still learning), the Constitutional and statutory interests, historical developments (e.g., legal, technology) and the full set of existential evaluations, threats, likely and foreseeable developments, etc."

Well, I didn't characterize them as anything other than a general set of contexts, albeit all of them highly relevant. Approaching the situation first and foremost in general terms helps one to be fully conscious of those parameters - thereafter, and only thereafter, beginning to examine more specific aspects and details. Otherwise "failing to see the forest for the trees" becomes an issue. Prominently, if only the statutory interests are emphasized then the equally viable, broader concerns risk being lost or denied their own pressing significance.

One critical concern, and only one, is that technological advances need to be balanced against statutory constructions which reflect outdated legislation. Another concern is that even judicial oversight mechanisms, including FISA court judges specifically, need their own discussions and critically informed debates. Yet these are too often neglected, which further serves to indicate this debate has taken on a primarily partisan instead of a more balanced and more evenly tempered character. Two excerpts from the linked article:

"... judges speaking to the press regarding matters that may end up in litigation is always a major impropriety, regardless of what kind of matters are involved. Canon 3 of the federal Code of Judicial Conduct expressly admonishes: 'A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control.' This is so elementary to fairness and impartiality — the hallmarks of the judicial function — that it is almost surprising to find a rule about it."

Also: "A major problem of the whole FISA enterprise is the questionable constitutionality (not to mention the wisdom) of Congress's delegating judges — who have no particular expertise by virtue of being judges — to exercise what are executive-branch national-security powers."

"First, as to your point here, the president was obviously trying to keep this secret. This is why he classified it and also why we didn't learn about it until just last year. Finally, that is why he only informed a limited number of Congress, not even informing the whole intelligence committees." Noah Klein

Certainly, this was "secret" as an intelligence gathering program, therefore only a small number of congressional representatives were informed; presumably this is always true when it comes to classified, intelligence gathering programs. Leaks are always a concern. But that's not what was being emphasized.

"Second, you appear to assert that the executive branch review of executive actions is enough to be called oversight. I hope I am stating your opinion correctly."

No. The informed members of Congress, most prominently, were and are providing oversight, also one of the FISA court judges was informed if I understand the situation correctly. The problem being faced, from the vantage point of the intelligence gathering program and also as viewed within our open/democratic form of governance, is balancing the secrecy which is warranted (because it is classified intelligence gathering) while also allowing for some (necessarily limited) oversight. This was not avoided, certainly not in principle, given the Congressional review and the FISA court judge who was informed.

I'm not at all dismissive of warranted and balanced concerns, I am dismissing the more egregious, overly leveraged rhetoric (e.g., comparing this NSA/GWOT situation to Nixon/Ehrlichman/Haldeman types of scenarios, Reichstag fire comparisons, allusions to "the road to totalitarianism"). Barring evidence, these are hugely exaggerated concerns which fail to place emphasis where emphasis is due, i.e., at critical points within the full spectrum of what needs to be taken into account.

In a nutshell: Warranted concerns, transparent and honestly informed debates, well reasoned arguments balanced with the full set of facts and within all the relevant contexts - yes. Partisan and more egregiously sectarian intrigues leveraged to score points and initiate highly dubious discussions about impeachment - emphatically no, we're nowhere remotely close to that. The envelope is being stretched, yes, and that's almost certainly a good thing. The debate is engaged, but scrutinizing the full scope and range of that debate is what is called for, not narrow construals for purposes of partisan divisiveness and "gotchas".

And btw, the envelope is being stretched in other directions as well. Thus again emphasizing the full set of legislative, executive branch, judiciary, MSM/media, surveillance, and other viable contexts. Not merely one, but many things need to be weighed in the balance - without tilting the scales for merely partisan or sectarian interests.
1.6.2006 3:57pm
Just an Observer:
MCL,

I could not agree more with KMAJ that Al Qaeda was intended as the target of the AUMF. That's good, because we have been fighting the organization since 2001. It's been in all the papers.

However, as stated above, this does not change Al Qaeda's status within the definitions of FISA. The terrorist organization was a "foreign power" for FISA purposes even before 9/11.

That does not exempt Al Qaeda from the scope of FISA, but rather the reverse. The whole purpose of FISA is to govern the surveillance of foreign powers and their agents. Thus, the procedures detailed in FISA -- notably the requirement for court orders -- apply.
1.6.2006 4:05pm
Noah Klein (mail):
Michael B:

You say that informing a few members of Congress who cannot tell their collegues of the information provided to them and cannot conduct oversight without the full intelligence committee knowing of the action is oversight. When a committee conducts hearings, they need to ask questions. You can't ask questions when the full committee are not allowed to know about the information.

Furthermore, as to cutting off funding or some other action, once again, knowledge of the committee is necessary. The money used here was most likely obtained from the surplus budget that are given to all intel agencies for covert actions. How do limit that money given to the agencies without hurting our war on terror or informing the rest of the committee?

Finally, as to the presiding judge on the FISC, cannot stop the administration unless somebody with standing brings suit to her. This is impossible because the FISC is a non-adversarial court.

Honestly, who could have placed a check on the executives?

Noah
1.6.2006 4:08pm
KMAJ (mail):
Medis and Noah,

I think we entangle ourselves in legalese. Even the Patriot Act did notdirectly address the correlation between between the AUMF and FISA. The 9/11 Commission Report recommendations clearly denote the Gorelick Wall, which FISA was/is the instrument to protect, has a great degree of responsibility for the attack. If we do not include that in the argumentation, we come at the analysis from a flawed position.

The AUMF clearly states :

"Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States"

If FISA is a deterence to faithfully carrying out his Constitutional authority to deter and prevent, we have reached an impasse that must be brought before the courts for adjudication. What we engage in without such a decision renedered is a philosophical argument of legal interpretation without weight of specific judicial support, as precedence can be brought to bear on both sides of the argument.
1.6.2006 4:09pm
Defending the Indefensible:
KMAJ writes:


I agree with your semantic analysis, whether one chooses enable or authorize, the difference is in the definition applied to the words. You seek to define it in terms that support your position with 'immunity from law'. I have not seen that claim made anywhere.


More semantics, the administration doesn't say it is immune from law, they simply assert that AUMF is a sort of special override law that gives them unchecked power to do whatever they think necessary.


I do believe the facts show that the executive branch has interpreted this 'authorization' very narrowly to only terrorism related intelligence that is initially targeted overseas.


That would be an interesting analysis if the only thing the administration were using the AUMF to justify were warrantless domestic wiretaps. But it has been applied much more broadly as you certainly recognize, such as in the context of domestic "enemy combatant" designation and detention (Padilla), or implicitly in the recent "signing statement" overriding the McCain Amendment.
1.6.2006 4:11pm
KMAJ (mail):
Noah,

Clearly, the informed members of Congress and the FISC judge have it within their power to raise objections and, if they feel they are unjustifiably being dismissed, have avenues, whether it be Whistleblower provisions or other avenues, to make their case. The fact that they did not make use of these avenues or speak up until after the story was announced, only underscores the politicization of the issue. It is that simple fact that cannot be dismissed.

As an aside, revealing classified secrets to a reporter falls outside the Whistleblower provisions and is a prosecutable offense.
1.6.2006 4:18pm
AJStrata (mail) (www):
NOAH,

Actually, being the aerospace engineer I am, what has come out in the leaks indicates these people knew very little about the NSA technical details.

All that aside, the issue is important so we debate the right issue!

What is funny are people who leap to the wild and unfounded conclusion Bush order people in the US to be TARGETS of surveillance without warrants! Why? There is nothing to back this crazy concept up except every crazier echos in the media echo chamber!

The less wild and more realistic conjecture is this is a partisan battle between leftists in the government leaking to try and political hurt the president (like THAT never happens!).

Lived in DC my whole life, grew up with the movers and shakers, seen it all. You can smell a real scandal. If Bush was really caught doing something extreme he would not be responding the way he is, the way Clinton did when things broke on him.

Anyway, my concern is we debate the essence of the matter, not liberal fantasies. Does ANYONE truly believe Bush ordered people in the US to be targets of investigations by the NSA? Why? He doesn't even make the call on who get's investigated! And why would he report it to Congress? And why would Congress go along with it???

Please. This is so silly. A lot of folks are caught up with scandal fever and have lost perspective.

Why would the FISA judges who are concerned, be concerned with the fact NSA intel 'tainted' the FISA warrants (what most of us would agree is the proper chain of events for passing leads from the NSA to the FBI)? Why such a marginal issue regarding the EXPECTED flow of leads on people in the US? If the FISA Court was being CIRCUMVENTED, why wouldn't these judges be worried about that?! That is a constitutional problem - but that is not what they say is their concern.....

Think about it.
1.6.2006 4:18pm
AJStrata (mail) (www):
NOAH,

Thanks for admitting there is no need for a warrant for the CONTACTS of a target of surveillance.

We are making progress.

I did not ask you whether Gonzales said was a 'commomn sense' interpretation. I asked if my intrepretation was valid given what he said. Since you punted to basically say someone with your 'sense' wouldn't agree with that intrepretation you have admitted, in a round about way, Gonzales' comments are open to a wide variety of reasonable intrepretations.

Therefore your solid proof of admitting to target people in the US goes out the door with your admitting there are other interpretations. Now, given the complete record of statements - many of which include precise words 'target' and 'terrorists overseas', while your 'common sense intrepretation holds in a vacuum, it collapses when set in the context of all the statements.

thanks for playing.
1.6.2006 4:25pm
Noah Klein (mail):
KMAJ:

The Patriot Act as it pertains to FISA was partially written to break down the Gorelick Wall. The Gorelick Wall was not set up by FISA. One of the reasons we can be sure of this is its named after an administration official. This was a Justice Department policy developed either before or more likely during the Clinton administration that said that intelligence information could not be used in law enforcement. Since the NSA spying thing is entirely an intelligence operation the Gorelick Wall does not apply to this debate. I agree with you that the Gorelick Wall is a bad thing. That is why it was eliminated in the Patriot Act.

The administration though says that the AUMF has within it an implied overruling of the FISA procedures which require a court order to target U.S. citizens. Since the Patriot Act amended FISA after the AUMF was passed and signed, as Medis has stated many a time, it does not appear likely that Congress wanted to override FISA.

Finally, as to the "whereas" clauses of the AUMF, they are generally considered to be dicta with no force of law. Its like the preamble to the Constitution. It gives us a good sense about the reason behind the law, but is not law in and of itself. It is more like a justification for the law.

Noah
1.6.2006 4:26pm
KMAJ (mail):
DtI,

More semantics, the administration doesn't say it is immune from law, they simply assert that AUMF is a sort of special override law that gives them unchecked power to do whatever they think necessary.


Now that is not a semantic argument but a distortion of the administration position. To be accurate, your argument should be 'the administration asserts the AUMF gives them the power to do what they think is necessary under their (WH counsel and DOJ) interpretation of the Constitution'. All your extracurricular linguistic assertions are clearly meant to paint your own picture of your opinion in partisan colors.
1.6.2006 4:31pm
Defending the Indefensible:
KMAJ writes:

To be accurate, your argument should be 'the administration asserts the AUMF gives them the power to do what they think is necessary under their (WH counsel and DOJ) interpretation of the Constitution'.

I accept your reword. Thank you for phrasing it so well. If this is their assertion, and in substance it now appears we agree that it is, then the AUMF is being interpreted as an Enabling Act.

Suppose that the administration declared explicitly and precisely what you have said. Would you object?
1.6.2006 4:39pm
AJStrata (mail) (www):
MEDIS,

Just because you are unpursuasive doesn't mean I am ignoring your arguments. Yours tend to be the weakest of all. Now, when you are done insulting me because I find your arguments weak and wanting, work this problem:

""The President has authorized a program to engage in electronic surveillance of a particular kind, and this would be the intercepts of contents of communications where one of the -- one party to the communication is outside the United States. And this is a very important point -- people are running around saying that the United States is somehow spying on American citizens calling their neighbors. Very, very important to understand that one party to the communication has to be outside the United States."

Gee Medis, are do you think this is admission we ONLY target the calls from the overseas terrorists that come here???? Now that is a wild leap of logic! Why would we miss the opportunity to find their compatriots in their country or key ally countries? I mean, here we are monitoring the communications of a known terrorist overseas, and you are claiming we are only interested in their US contacts?!?!

Wow. That is a truly stunning assumption. So we would ignore local calls so we could identify associates and try and ascertain the physical location of this guy are infiltrate his inner circle - not important. We would ignore his calls to compatriots in the UK (which I already pointed out to you we actually don't due, evidenced by the fact we stopped attacks in the EU, specifically the UK). We just ignore those calls....

Calls that would possibly lead to other contacts in the US. The DE cell has one set of contacts here, the UK cell a different. But we will ignore the DE cell's contacts to the UK, even if they might lead to the other US cell..

Is that your intrepretation?

"Another very important point to remember is that we have to have a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. We view these authorities as authorities to confront the enemy in which the United States is at war with -- and that is al Qaeda and those who are supporting or affiliated with al Qaeda."

Dude, this section more than anything says, for the simple minded, that we are authorized to monitor our enemies, our targets.

Cheney's comments only point out that for the US, it is a HIGHER PRIORITY to find the US contacts for the obvious (OK, obvious to most) reason a terrorist in the US could be very close to executing their attack!

Medis, you see why your arguments don't sway me? Follow your 'leaps of logic' to their full extent and you find that you have jumped way out beyond reason.

The idea Bush only targeted the AQ communications with people in the US - ONLY - is pure liberal fantasy. It is laughable. One, because there is a lot of important information in ALL the overseas target's communication. Two, because as long as the overseas target is the target of the surveillance, as NOAH admits the communications of US contacts with that target are legal!

Geez, don't you think Bush and company would keep the legal cover of the NSA prime intelligence role - even if your worst liberal fantasies were true????

You do keep me laughing, that is for sure.
1.6.2006 4:40pm
Noah Klein (mail):
AJ:

First, I didn't punt. I said very clearly NOOOOOO!. You can't interpret it the way you did AJ. But looking at it again, I'm sorry and you got me. There are other interpretations of what the AG said. I interpret what he says as a denial that man walked on the moon. What I said was that the only logical, the only common-sense interpretaion of what he said is that the NSA program would have violated FISA. I could go through every word and provide a definition for each word and why it means what it means. But there is no point. You can't seem to read. So I'm just going to debate anymore until you can give some evidence that what AG said is not true?

KMAJ:

I'm not sure about the FISC judge, but I know that some Congress people objected. This is because they wrote letters to the affect saying they objected. In my last post, I provided avenues that Congress could object to the Executive. Yet I showed that a single congressperson cannot do it all by themselves. That's the nature of Congress. If you don't believe, prove me wrong. I would be happy to know that Congress had some practical means to object.

In terms of the FISC judge, judges cannot make any ruling on any matter unless it is brought before them by the relevant parties. How could the FISC Judge overturn this?

Noah
1.6.2006 4:41pm
KMAJ (mail):
Noah,

While I understand your assertions, the Patriot Act DID NOT tear down the Gorelick Wall. If it had, the 9/11 Commission would not have addressed it in its recommendations. FISC statements have also supported the fact that it sees itself as an autonomous protector of that wall. The historical context of that wall does tie itself to FISA. The wall came into being out of the Church Commission, which preceded FISA. FISA was created to protect that wall. The reason it is called the Gorelick Wall is because she heightened that wall in 1995, not created it.
1.6.2006 4:44pm
Noah Klein (mail):
AJ:

Why do think it was necessary for the AG to say "And this is a very important point -- people are running around saying that the United States is somehow spying on American citizens calling their neighbors. Very, very important to understand that one party to the communication has to be outside the United States?" Do you think he just said it because he felt like it? Do you think he said it because it seemed kinda interesting? Or do you think he said it because when the administration admitted it was targeting U.S. citizens he wanted people to know that it wasn't purely domestic calls?

I kinda think it was the last one. The AG obviously wanted to make sure that people were not confused that one end was overseas, but it is obvious by what says when says that FISA would have applied that they were targeting U.S. Citizens. Were they targeting foreign persons? Prove it.


Noah
1.6.2006 4:47pm
Noah Klein (mail):
KMAJ:

Point taken. I was wrong. The wall is related FISA. I think the 9/11 Commission would have looked at the issue, because it was one of the issues that lead to 9/11, but I could be wrong. This does not change the fact that the Gorelick Wall, which has to do with the passing of intelligence to law enforcement does not pertain to this isuue.

Noah
1.6.2006 4:50pm
Noah Klein (mail):
AJ:

We are interested in both the foreigner and the U.S. person. I think we would be more interested in the U.S. person, because they are here and don't have to jump over the hurdle of getting. But we are interested in both, which why both foreigners and U.S. persons are the targets of our surveillance. What the government is saying here is that in this case, the target of our surveillance are U.S. persons and they are surveilled without court orders.

Noah
1.6.2006 4:53pm
AJStrata (mail) (www):
Noah,

I am easily convinced through sound and complete logical argument. The fact you feel you need to 'beat back' shows some ego on the line.

Trust me, I am not some dog on a computer. I think you are just not ready for a truly challenging debate.

You admitted those who contact a target can be monitored as part of a seperate target's surveillance. And I believe you concese NSA has a right to monitor overseas terrorists in what is a legal, warrantless surveillance.

Now we have come to the crux. MEDIS humorously believes the NSA program only looks at the calls between the overseas target and people here in the US (which, even if true still is valid as long as the target is monitored and the US contacts are only monitored when communicating with the target). MEDIS is backed into a logical corner.

He knows, as you do, that I am right about the distinction between a legal target of surveillance and those who contact that target. Now he is stuck arguing the NSA was solely focused on the US communications....

Yeah, would love to see proof of that. I would be calling for Bush's impeachment. That kind of wild rationalization is why I know MEDIS has lost this debate. It is only a question of when he realizes it.

As when we started this dance not much has changed, the government claims, and no one disputes, the right to monitor terrorists overseas. If the target is the overseas terrorists, then people in the US who make contact with that target are legally equivalent to anyone making contact with the target of a legal surveillance. Monitoring those contacts falls within the scope of the legal surveillance of the target.

I think we all also agree that if a lead was detected by NSA in this manner, they should hand this off to the FBI who would have to take it to FISA to make the US contact the target of legal surveillance here in the US.

Now we have the problem of the leakers and FISA judges' concerns. As I pointed out, the Judges concerns focus on NSA intel going to FISA to establish probable cause (why else would it go there?) for a FISA warrant. Therefore, logic dictates in some, if not all, the cases the NSA and FBI followed the proper process of handover of international intel to local surveillance.

So all indications are the process was followed. With all that said, where is the evidence Bush went around FISA beyond the wild claims of James Risen and his leakers?????

We can take this final step now that we agree on so much.

Where is the evidence that Bush went around FISA?
1.6.2006 4:54pm
Michael B (mail):
"Honestly, who could have placed a check on the executives?" Noah Klein

But I'm not presuming to state that this current form of oversight is equivalent to the same type of oversight more typically granted, for example to standard funding reviews within the House Ways and Means Committee. I'm much more simply providing some parameters which - at absolute bare minimum - serve to reflect the fact this NSA program is nothing even remotely close to a Haldeman/Ehrlichman/Nixon scenario or a "Reichstag fire" scenario, both of which have been forwarded as putative analogies in various forums.

Apparently the Armandos of the world can't even admit these types of facts, seemingly because they don't want to give so much as an inch when it comes to the most obvious of warranted admissions. I'm not striving for any presumptions or preliminary apologias, imo. Am more basically attempting a better qualified set of definitions, parameters, perspectives, and the debate in general. If that's not established, prior to any more detailed or speculative analyses, then it's difficult to see how the transparency and fruitfulness of the full set of debates which need to be invoked can truly be optimized.

Have a good evening.
1.6.2006 4:54pm
jukeboxgrad (mail):
AJ:

"we are monitoring the communications of a known terrorist overseas ... the terrorist overseas is the target ... The statements I have seen all say we monitor terrorists overseas ... Bush and his administration have clearly said the NSA was monitoring Terrorists overseas ... Everyone has stated the role NSA plays is monitoring Terrorists overseas"

Everyone except Gonzales. Of course we monitor terrorists overseas. But Gonzales told us we also monitor terrorists in the US.

"What is funny are people who leap to the wild and unfounded conclusion Bush order people in the US to be TARGETS of surveillance without warrants!"

What is funny is that there are people like me who actually read what Gonzales said: "To the extent that there is a moderate and heavy communication involving an American citizen, it would be a communication where the other end of the call is outside the United States and where we believe that either the American citizen or the person outside the United States is somehow affiliated with al Qaeda." (Emphasis added.)

In other words, we are not just "monitoring Terrorists overseas." Gonzales admitted that the suspicious person might only be the person on the US end of the call. And notice how he defined suspicious person: "somehow affiliated with al Qaeda."

You claimed that "one end of the monitored call was a known or highly suspected terrorist." Gonzales said one end of the call was a person "somehow affiliated with al Qaeda." I wonder if you think "somehow affiliated with al Qaeda" is a reasonable synonym for "highly suspected terrorist."

Anyway, it seems to me that NSA is (in at least some cases) deciding that a US person is "somehow affiliated with al Qaeda" merely on the basis of the fact that the person's phone number appears on a device we captured from an alleged bad guy somewhere.

Do you have any reason to claim that what I just described isn't happening?
1.6.2006 4:56pm
jukeboxgrad (mail):
Michael:

"unless and until things like domestic political spying is uncovered"

In what way is monitoring a 79-year-old Quaker grandmother something other than "domestic political spying?"

By the way, I notice you haven't answered the question regarding chemical weapons.

"how do you know otherwise?"

Context, please. I have no idea what you're talking about. I've asked you several questions. You've answered none of them. Answering a question with another question is not helpful, especially when I have no idea what your question is supposed to mean.

"How do we 'know' Bush is not Count Dracula?"

I know that Bush is not Count Dracula (even though theoretically there is room for doubt, since I've never seen them photographed together). What I don't know are any of your answers to the questions I directed at you, here.

"admit the speculative qualitive involved"

Please point out what I said which you consider to be speculation.
1.6.2006 4:59pm
jukeboxgrad (mail):
Bruce,

"some FISC judges don't seem to like NSA evidence being utilized for FISA warrants."

Not exactly. It seems to me that some FISC judges don't like NSA evidence which was gathered illegally.

"Weird"

I think all sides would agree that there are many ways FISA, as a law, can be improved. It's important to notice that Bush apparently hasn't done much to make that happen (unless one thinks that the Patriot Act did a great job of bringing FISA into the current century).

"What I think this points out (IMHO) is that FISA was not well designed to meet the demands of combatting terrorism."

Only if you think that getting warrants is an unbearable burden. (This is not to say that I don't think FISA could use updating.)

"it would seem to preclude recording conversations when a target outside the U.S. calls someone here - and the interception is being done here."

I don't see where FISA has a problem with getting a retroactive warrant in that scenario.

"I am somewhat sympathetic to their claim that AUMF or Article II should give them this power"

The problem is that this argument is a blank check to break a very long list of laws.
1.6.2006 5:01pm
AJStrata (mail) (www):
NOAH,

You are sadly mistaken about FISA and the Gorelick Wall. As snippet from my blog wih links (saves typing and typos).

"On May 17, 2002, the FISA court was itself taken to court by the Bush administration for trying to retain the Gorelick Wall barring the sharing of intelligence data with law enforcement efforts."

...

"It is a fascinating read on a FISA court trying to usurp powers given to the administration. The end result was a higher court's decision to overrule the FISA Court:"

The links take you to the FISC and FISRC rulings themselves. The first FISC ruling contains the courts own words on how the FISC was the embodiment (if not the primary ramparts) of the Gorelick Wall.

See, can learn something new everyday. Even from a dog at a keyboard!
1.6.2006 5:04pm
Noah Klein (mail):
Michael:

I am glad that you are not supporting positions for which you see no logical evidence. I was hoping you haven't left, because I wanted to ask you what check you see a few members of Congress can impose?

AJ:

He's not stuck arguing that. I am not stuck arguing that the Bush administration is targeting U.S. citizens. That is what we have been arguing with people like yourself who time again have arguments that FISA does not apply. I have been arguing with people such as yourself that FISA does apply and was violated. I have used statute. I have used cases. And I have used the words of the Chief Executive and his Attorney General. Unlike many of your compatriots, you have never introduced anything that we have not used in the past. That is why I say we have beat back people like yourself, because everytime we make our point to people somebody jumps up and makes the same argument we just disproved.

Medis and others have been asking numerous times for people defending the administration to assess the argument made by the executive branch that the program in question would have violated FISA, but that the 2001 AUMF overrode FISA. And your side never has. You seem not accept the argument they make and thus need to zealously defend them on specious grounds. I do not think that the argument they make is so horrible that you need to deny what they say in order to defend them, but maybe I am wrong.

Noah
1.6.2006 5:09pm
AJStrata (mail) (www):
NOAH,

Your not being honest with yourself. You said NOOOO (like extra O's helped?) and then caveated with 'common sense'... Which is subjective and, depending who and what we are talking about, more a case against your intrepretation. Common sense says bummble bees should not be able to fly (but they can), and water cannot run up hill (except it does in trees...).

I followed up with MEDIS, who was at least willing to add more of the words, which point more and more to the rational explanation that Gonzales was talking about monitoring AQ targets.

But hey, you want blinders - be my guest.

I guess you and MEDIS are now both claiming the NSA program was only looking at communications with terrorists and their contacts in the US - nothing else....

Yeah, right.

You were making sense when you were fantasizing about Bush being power drunk.
1.6.2006 5:14pm
AJStrata (mail) (www):
NOAH,

"Why do think it was necessary for the AG to say "And this is a very important point -- people are running around saying that the United States is somehow spying on American citizens calling their neighbors. Very, very important to understand that one party to the communication has to be outside the United States?" Do you think he just said it because he felt like it? Do you think he said it because it seemed kinda interesting?"

Honestly? I think he said it so people like you and MEDIS would not get confused. The people 'running around saying that the United States is somehow spying on American citizens' are you and MEDIS. He was trying, politely, to remind you folks we monitor Terrorists, so we will capture communications with terrorists, even if they come from the US.

MEDIS is so stubbornly trying to salvage the liberal fantasy he is now claiming we ONLY monitored communications of the terrorists overseas with contacts in the US.

And it sounds like that is where you are staking your last stand.



Don't say you weren't warned!
1.6.2006 5:20pm
Noah Klein (mail):
AJ:

I will answer your post in a while, if you answer me here. Can a U.S. citizen be a member of AQ? If so, can they be surveiled by the U.S.?

Noah
1.6.2006 5:22pm
AJStrata (mail) (www):
NOAH,

you are walking back from the edge!

Yes, we are interested in all communications of a target overseas.

Now, you admit there is a difference between a legal target and those who communicate with a legal target. The same legal justification for surveying the target covers all those who communicate with the target.

The only place we have seen the US contact of an overseas target become the target is through the FISA process, where the 'tainted' intel from the NSA surveillance was used to establish probable cause for the application of a FISA warrant.

No where did anyone admit, or anyone show, that a US person became a TARGET unto themselves without a warrant.

A person will begin as a contact of a overseas target, and then possibly graduate to 'target' through FISA. But no one has admitted, or even claimed, the contact of an overseas target became a target themselves without a warrant!

Now, prove THAT has happened!
1.6.2006 5:26pm
Noah Klein (mail):
AJ:

At least when I write something I finish the sentence. I do not highlight the whole sentence, because that is not the element to which I am trying to draw your attention. He wanted to ensure that people like myself, Medis and even you would not think they were spying on U.S. citizens calling U.S. citizens.

Noah
1.6.2006 5:27pm
AJStrata (mail) (www):
Juke Box

"it would be a communication where the other end of the call is outside the United States and where we believe that either the American citizen or the person outside the United States is somehow affiliated with al Qaeda." (Emphasis added.)"

That is one, squinted interpretation. Look, pullings a sentence out from all the other statements allows you to jump to distorted conclusions. It is free country - leap away.

But if I may suggest some other explanations to ponder. In these off the cuff responses, people can mispeak or speak awkwardly. That is why you take the perponderence of statements and weight them together. It allows you to see an outlier. It is up to you whether you jump to some conspiratorial conclusion about the outlier are simply accept human nature.

But let's assume for arguments stake, this awkwardly phrased sentence is conveys precise meaning. I hope you had logic in school. The 'or' means one or the other - not both. I read it is as 'The American or Non American (person)'...but both were outside the US and Al Qaeda.

This is an interesting question! Because I am wondering about the situation were an American citizen has been basically identified as enemy combatant overseas. NOw we have an interesting grey area. What do we do with 'traitors' overseas working for Bin Laden? Hmm, not clear.

But that is a long way from your intrepretation that Americans overseas vs Al Qaeda overseas - which I gather is your claim.

Like I said, this is not as clear as the reactionaries wish it was.
1.6.2006 5:39pm
Noah Klein (mail):
AJ:

One can tell you are slow reader and you haven't read all the other threads and seen the countless number of times where Medis, George Gregg, Jukebox, myself and many others have focused on the words the TARGET. I'm not walking back nor am going towards the edge. I have stood like a rock where I am for eight days now arguing with likes of you, who don't seem to read what is written in front of them.

Secondly, I have read the two links with which you provided me. The Court of Review case, I had read before when offered by earlier posters. The FISC court is interesting. Yet it does not change the fact that FISA was amended by the Patriot Act. That the Patriot Act was designed to break down the Gorelick Wall. This why the word "primary" purpose behind the surveilance was replaced by the word "significant" as the FISC court document says.

I know this because huge fan of C-SPAN. I'll admit now I am a nerd. And while watching C-SPAN, I happened to watch the hearings over the Patriot Act. In those hearings, both those who wanted to increase the authority granted government by the Act and those who wanted to limit admitted that the Gorelick Wall was dumb and that the Patriot Act eliminated it.

Finally, I'm getting tired of saying the same thing which is clearly written and then answering your ridiculous charges. I know that another one will just shot up in a moment, so let's wait.

Noah
1.6.2006 5:42pm
AJStrata (mail) (www):
NOAH,

I never said FISA doesn't apply. I said there is a process of which FISA is a part!

NSA monitors terrorists overseas, their legal 'targets'. Contacts in the US communicate with NSA 'targets', making all communications with the target fair game. NSA, probably working with the FBI, decide the US contact is a concern and go through FISA to make the US contact a 'target'.

There is FISA's role! Clear and concise. As long as the US contact communicates with the overseas target, THOSE communications are legal to monitor (you said so yourself).

That is the legal and proper series of events with everyone playing their legal proper roles in their seperate domains, handing over information when their two domains connect up because a target overseas communicates with a contact in the US.

Where did I say FISA was not involved? I clearly indicate FISA has no say in the NSA selecting and monitoring their overseas targets who are terrorists. I clearyly say NSA cannot target a person in the US without going through FISA. I clearly outline the handover process.

LOL! Where did I say FISA was not involved???
1.6.2006 5:47pm
AJStrata (mail) (www):
NOAH,

I alluded to this in my response to Jukebox.

Yes, an American can be AQ - of course.

Can they be surveyed without a warrant - not when they are here in the US. Requires FISA (or normal court) approval.

Before we get to the last combination, you must agree to something. All my points about NSA targets, people in the US open to monitoring if they contact those targets, but only their communications with the targets (nothing else), and the handover of an NSA lead to the FBI through FISA to make the contact in the US a legal target of now a FISA warranted surveillance is legal AND balances civil rights of those here in the US.

Agreed?

OK, the surprise combination is an American who is deemed an AQ agent who is overseas! That is the small, grey space I agree exists (which doesn't make Bush a power hungry madman BTW).

This is where we have conflicting statutes, but I believe the AUMF and the FISA definitions themselves play a pivatol role. We are at war with AQ (AUMF strongly implies this and AQ has declared this too many times to count). So an American AQ is possibly a traitor, spy or enemey combatant. Not sure if our laws protect their civil rights overseas in these cases. Interestingly enough, FISA designates AQ as a 'foreign entity' for purposes of being candidates of foreign surveillance. Since FISA only applies to surveillance of foreign agents here in the US, and leaves the CIA, DIA, NSA and others to deal with these foreign elements overseas - this becomes and interesting question.

In the rare condition of a US citizen overseas who is aligned with AQ, I would say it could be argued either way.

See, this dog can be reasonable.
1.6.2006 5:59pm
Noah Klein (mail):
AJ:

How can you read sentence as saying that the person being surveiled is outside the U.S., whether American or not? That's doesn't make sense. You seem to stretch and squeeze and work sentences into whatever you want them to means.

If I say the ball is red or blue, does that mean that this ball is red, but another ball is blue. I don't think that is what is being said in that example sentence. Let's try the more complicated one that was used above:

"it would be a communication where the other end of the call is outside the United States and where we believe that either the American citizen or the person outside the United States is somehow affiliated with al Qaeda."

Here we have a sentence. The subject of the sentence is "it." The object of the sentence is "communication." The verb is "would be." There is a clause in this sentence that begins with "where." The subject of the clause is the "other end." The verb is "is." Here is where we get to the interesting part. There is another clause (this is indeed a run-on sentences, but it clear) that begins again with "where." Then we have an "either...or." With an "either...or" the choices are one or the other. OK! One choice is the American Citizen. The other choice is the person outside the United States. And the object of the clause is "a member of AQ." Since in the beginning of the sentence, we know that there is only one end outside the U.S. It is not possible given the construction of this sentence to assume that the speaker meant to say that the American citizen was outside the U.S. QED...Therefore it is not an interpretation or a reading into or another assumption beyond that needed to express language to come to jukebox's conclusion.

This is exactly what I mean by reading the sentence as it written. Please do not give us your interpreation of what is said. Its not necessary. This isn't that complicated. The issue is complicated, but what people say it is pretty clear.

AJ, how about this? I had thought (I know what you gonna say "YOU!"). But I did. What did the NYTimes report? Why I think they reported that the U.S. was spying on U.S. citizens. Now, where did the AG make these comments were quoting? Why, I think they were made at a press conference. If your reading of what he said is right, why didn't the press ask were you listening to U.S. citizens phone calls?

Noah
1.6.2006 6:02pm
AJStrata (mail) (www):
NOAH,

I am not a 'slow' reader. I am a 'new' reader.
1.6.2006 6:02pm
Defending the Indefensible:
AJ,

May I ask if you're out of high school yet?
1.6.2006 6:03pm
Noah Klein (mail):
AJ:

Maybe you can, but you can't seem to admit the obvious, which is that they are targeting U.S. citizens in the U.S.

As to your hypothetical, the U.S. citizen is fair game for the NSA. For a variety of reasons, our laws do not apply in foreign countries. Our intel agencies are already monitoring the calls of a lot of people in almost every foreign country. It is foolish to think that they would able to eliminate U.S. persons in that country. Finally, FISA, which aside from the National Security Act, is the only law that advises the intel agencies what procedures they should follow. There are variety of classified procedures, but I do not see why the U.S. Citizen in a foreign country is not fair game.

Noah
1.6.2006 6:09pm
AJStrata (mail) (www):
NOAH,

Logic is logic, I did not make it up. 'Or' means either, but not both. What I think Gonzales tried to convey, and maybe tipped through Clintonesque wording, is an American overseas who is AQ, or any other person overseas who is AQ are valid targets. I get the foreignor overseas associated with AQ. That makes sense.

But an American overseas associated with AQ.....

Interesting and not so obvious. I think Gonzales did leak something accidentally. I would say he did admit to surveillance of US Citizens as AQ who are overseas.

My guess is the bar would have to be damn high to believe a US citizen is AQ to a level where they would risk the NSA path.....

But who knows. Maybe the tripped over this once or twice, listened in for a bit to confirm their suspicions and then went to FISA.

This is my point. We collect lots of intel and Americans get caught up in these efforts. It is not so much a problem that an American gets caught up (the hotel clerk example I harp on). That is incidental contact.

It is focusing surveillance on the Americans for a period of time beyond what is reasonable to determine if their is a threat from this person.

We can listen in on a US based contact commnicating with an overseas target all we want, as long as it is only those contacts with the target. That is my opinion based on the parallel examples of warranted surveillance and incidental contacts.

What is a reasonable period and what are reasonable actions to ascertain whether a US bound contact needs to become their own target through FISA? That is an interesting question, one I assume is worked out with the Chief FISA Judge and the FBI and NSA.
1.6.2006 6:15pm
Noah Klein (mail):
AJ:

Out of college. Yet, I still remember the lessons they taught me.

Noah
1.6.2006 6:16pm
AJStrata (mail) (www):
DtI

You can ask....

Did I mention I have four kids and design satellite control centers?
1.6.2006 6:18pm
AJStrata (mail) (www):
NOAH,

I don't admit it because no one has proven or admnitted to it!

It is not even a logical argument! If, as you agree we can monitor US contacts communicating with overseas targets, then there is no need to target a US citizen. FISA handles and has handled the transition to broader surveillance focused here in the US....

So, why would Bush need to bypass this process???

See, you think I am wildly speculating because I have not bought into the wild speculation!!

Truly ironic.
1.6.2006 6:21pm
AJStrata (mail) (www):
Been fun folks. Time for some family time.

Sources from others tell me all will becoming clear soon.

Enjoy your weekends.
1.6.2006 6:23pm
Noah Klein (mail):
AJ:

I broke down the sentence, showing that when Gonzales says "either U.S Citizen or a person outside the United States" one meant a U.S. Citizen in the U.S. and one meant another person out of the U.S. In this thread, three people have said what I said was the case and you have said you said is the case. Now don't misunderstand me. I do not think there is a variety of ways to interpret this sentence and I think that you are all wrong. But I would love to learn how you reasoned out of that clear, even though a run-on sentence that Gonzales meant a U.S. citizen outside the U.S.

Noah
1.6.2006 6:26pm
Just an Observer:
For the record ---

The scenario on which AJStrata repeatedly focuses, in which a U.S. citizen here has a communication intercepted outside the United States without his being the "target," is relevant to the definition of electronic surveillance under 50 USC 1801(f)(1). I believe he is correct insofar as he reasons that such a scenario does not fit that particular FISA definition. It requires "intentional targeting" of such a person.

However, there are three other, freestanding definitions of electronic surveillance in FISA, any one of which comprises surveillance covered by the act and thus requiring a FISA court order.

One of the other definitions is 50 USC 1801(f)(2): "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States ..."

That provision does not mention "target" or "targeting."

So if a wire communication is intercepted within the United States, it requires a warrant no matter who the target is, or if there even is a target.

One of the things that was new and different about the NSA program in question, according to the NYT story of 12/24, is that intercepts were installed in or around communications switches in the United States.

On another point, when AJStrata brings up the traditional missions of different agencies -- NSA, FBI, etc. -- that has no legal relevance to FISA. The attorney general does has specific responsibilities under FISA, but he represents all agencies in the government. As far as the warrant requirements go, it does not matter which agency is performing the surveillance in question.
1.6.2006 6:41pm
Bruce Hayden (mail) (www):
"some FISC judges don't seem to like NSA evidence being utilized for FISA warrants."

Not exactly. It seems to me that some FISC judges don't like NSA evidence which was gathered illegally.

But what has not been really established, despite all of the assumptions being thrown around here is whether the surveilance is technically illegal - such as, as I suggested, recording an incoming call to someone here from a known or suspected terrorist overseas, or is really a lot more egregious.

"Weird"

I think all sides would agree that there are many ways FISA, as a law, can be improved. It's important to notice that Bush apparently hasn't done much to make that happen (unless one thinks that the Patriot Act did a great job of bringing FISA into the current century).

No real complaints there.
"What I think this points out (IMHO) is that FISA was not well designed to meet the demands of combatting terrorism."

Only if you think that getting warrants is an unbearable burden. (This is not to say that I don't think FISA could use updating.)

I see a lot of problems, including that of the time limits on warrants. But I do see warrants being unbearable burden in some cases - like recording a conversation when targeted people call someone in the U.S. - because a warrant is not required for recording the targetted person's calls, unless he calls someone here. But, I don't think it unreasonable to require them for surveiling someone once they are a target here. The question, as yet unanswered in my mind, is precisely what is the situation that is the cause of this entire kurflufle.
"it would seem to preclude recording conversations when a target outside the U.S. calls someone here - and the interception is being done here."

I don't see where FISA has a problem with getting a retroactive warrant in that scenario.

Can you? A retroactive warrant would seem to be a conflict in terms - somewhat akin to military intelligence, etc.
1.6.2006 6:50pm
Noah Klein (mail):
AJ:

Doubt you are still here, but I want to say one more thing to try to prove it you that U.S. citizens in the U.S. are being targeted by the NSA.

You say it is logical for the NSA to spy on U.S. Citizens without going through FISA. It is logical, it may not be legal, but it is logical. Let's go with some examples. 1) Data mining, is this what's happening can't tell you, but it is logical and you can't do it through FISA.

2) Circumstantial evidence arises that implicates a U.S. citizen in the U.S. of possibly being connected to terrorism (phone # in cell phone, posting on the web, giving to a charity). There is no probable cause to demonstrate that person is an agent of a foreign power. If your Bush and you believe you have authority to go around FISA, you do so.

That's what might have happened, but at least that is logical and not wild speculation. The president has already asserted this similar authority in the past adn he will do it again.

Why is it illogical, given what the Preaident said, what the NYTimes said, what Gonzales said, what the law says?

Good Bye everyone,
Noah
1.6.2006 7:19pm
jukeboxgrad (mail):
AJ,

"But let's assume for arguments stake, this awkwardly phrased sentence is conveys precise meaning."

Can I quote you on that? I think you're in a poor position to claim that Gonzales's sentences are awkwardly phrased. Although I realize that's the pathetic straw you're grasping at to claim that he meant something other than what he said.

Gonzales said "To the extent that there is a moderate and heavy communication involving an American citizen, it would be a communication where the other end of the call is outside the United States and where we believe that either the American citizen or the person outside the United States is somehow affiliated with al Qaeda." (Emphasis added.)

Clearly, he is talking about not just an American citizen, but an American citizen in the US. This is obvious because he said "where the other end of the call is outside the United States." If "the other end of the call is outside the United States," then this end of the call is inside the US (it's pretty amazing that you can't figure this out on your own). Also, when he says "the American citizen or the person outside the United States," this is another indication he's making it clear that the American citizen is a person who is inside the United States (it's pretty amazing that you can't figure this out on your own).

And he's obviously acknowledging that (at least on occasion) the American citizen in the US is the target; the word "either" indicates that (at least on occasion) only one, not both of the participants are "somehow affiliated with al Qaeda" (it's pretty amazing that you can't figure this out on your own).

In other words, he admitted that our program of warrantless surveillance includes targeting US citizens, in the US, when we think they are "somehow affiliated with al Qaeda."

You've claimed repeatedly that this doesn't happen. You've shown no proof to support your assertion, and you ignore clear evidence that your assertion is patently wrong. Welcome to the topsy-turvy world of AJ.

"I am wondering about the situation were an American citizen has been basically identified as enemy combatant overseas. NOw we have an interesting grey area."

Not really. As far as I can tell, FISA offers that person no protection (while they are overseas). Nice try at changing the subject, though.

"But that is a long way from your intrepretation that Americans overseas vs Al Qaeda overseas - which I gather is your claim."

I have no idea what you're talking about. But I gather that your gathering skills leave something to be desired.
1.6.2006 7:25pm
jukeboxgrad (mail):
Bruce,

"what has not been really established ... is whether the surveilance is technically illegal"

All I need is the words of Gonzales to understand this: one who accepts the AUMF/Article II argument should believe the surveillance is legal. Otherwise, not.

"such as, as I suggested, recording an incoming call to someone here from a known or suspected terrorist overseas"

Gonzales made it clear that the "suspected terrorist" we are targeting might be a US person inside the US.

"or is really a lot more egregious."

The scenario Gonzales admitted to is indeed "a lot more egregious" than the scenario you just described.

"I see a lot of problems, including that of the time limits on warrants."

Those who see problems should go about fixing the law. Breaking the law is not a valid alternative to fixing the law.

"a warrant is not required for recording the targetted person's calls, unless he calls someone here."

That warrant can be obtained retroactively. I already said that. Maybe you didn't notice.

"A retroactive warrant would seem to be a conflict in terms"

It's not. It's a clever solution to a hard problem.

You're basically pointing out that FISA bends over backwards to make surveillance possible, even on a moment's notice. But for some odd reason, that wasn't good enough.
1.6.2006 7:27pm
Medis:
I applaud those who had the patience to deal with AJ.

Incidentally, AJ repeatedly argued that I claimed that the NSA ONLY surveilled international communications involving one person in the US. Of course, I never said anything of the kind. What I actually said is just what everyone in the Administration has said--that this particular program, the one that the President authorized after 9/11 on the strength of the 2001 AUMF, was intended to surveil international communications involving one person in the US.

But, of course, the NSA has a lot of OTHER programs besides this one. Indeed, that is what is so bizarre about AJ's line of thinking--all this talk by the Administration of a new program authorized by the President would make no sense if it was just one of their old programs we were talking about.

But as we have discussed before, making sense of what the Administration has said is apparently not the goal for people like AJ--for whatever reason, it is important to AJ that the Administration not be taken at its word on this issue.

KMAJ,

As always, it may be worth remembering that USA-PATRIOT is an acronym. It stands for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism."

So, how plausible is it that Congress does not view FISA as amended by the USA-PATRIOT Act as the appropriate means by which the President can conduct electronic surveillance in order to further the goals of the 2001 AUMF--which is precisely the same goal--preventing terrorist attacks on the United States?
1.6.2006 8:01pm
Defending the Indefensible:
There is a Memorandum produced yesterday by the Congressional Research Service regarding "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information." Bottom line conclusion, absent some explanation we don't have yet, it is not legal.
1.6.2006 8:26pm
subpatre (mail):
Assume a foreigner in Syria named Obul is targeted under §1802 (warrantless, therefore probable cause-less) procedures. Overseas surveillance demonstrates Obul is a member of aQ, coordinating agents into Iraq to make and detonate IEDs. Obul’s call to a known arms supplier is monitored, arranging delivery of a deadly bio-weapon from the labs of a former USSR republic.

(a) Obul calls an American citizen’s group in Maryland, pleas for funds, and the group agrees to send a colossal payment.

(b) Obul then calls ‘Alan’, apparently a US person, on cell-phone 555-5555 registered to Jane Doe Smith of Lansing MI, about “spreading the scourge among the infidels”, “many dead infidels”, Alan’s probable death, and heavenly reward for doing this.


Question 1a – What can be listened to or recorded of the call to the citizens’ group in Maryland?

Question 1b – What can be listened to or recorded of the call to Alan in the US?

Question 2 – Can a FISA warrant be obtained for surveillance targeting the American citizens’ group or Alan?

Noah Klein, Defending the Indefensible, and jukeboxgrad have said : 1a – Nothing; 1b – Nothing; 2 – “No”
1.6.2006 8:47pm
Defending the Indefensible:
Subpatre,

As I understand the law, the calls may be recorded, the Attorney General can sign off procedurally on FISA, and the recording may then be listened to, with warrant to be obtained from FISC within 72 hours.
1.6.2006 8:59pm
Diversity Hire:

Obul’s call to a known arms supplier is monitored


Where's it being monitored?
1.6.2006 9:03pm
Medis:
DtI,

That memorandum was pretty helpful, particularly on the legislative history of FISA and 18 USC 2511(2)(f). It certainly seems clear that Congress did not intend just any statute to be able to implicitly authorize electronic surveillance.

subparte,

You haven't given many of the details required to assess whether the surveillance in question is electronic surveillance within the meaning of FISA.
1.6.2006 9:28pm
Noah Klein (mail):
subparte:

Never said that. In various posts, I have said what you described is legal. Not only legal, it seems to me to be good use of intel. Larry Sloan, who wrote the article Prof. Kerr cited, would disagree with you and me as to the legitimacy, not the legality of the program you just described. But his article was written before 9/11 and I think now we have to do what is necessary and legal to catch terrorists.

The difference between you and me lies in the targeting of Alan. If Alan is targeted and his phone is tapped without first obtaining a court order from the FISC, then it is not legal or legitimate.

You see we in this country have rights. We accept a legitimate amount of danger to ensure that our government does not become an oppressive force. We know that in every society there is danger from the lawless, but even more in a society where people have rights that the government must respect.

Noah
1.6.2006 9:45pm
Noah Klein (mail):
subparte,

I'm sorry. I did not fully read your post. I need to know that Obul is the target and not Alan or the Maryland group.

Noah
1.6.2006 9:47pm
subpatre (mail):
DtI writes, "As I understand the law, the calls may be recorded, the Attorney General can sign off procedurally on FISA, and the recording may then be listened to, with warrant to be obtained from FISC within 72 hours."
"notwithstanding ... no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person."
Under your description I fail to understand how the contents are determined to be listenable if they aren't listened to. Or are you saying that's the procedure for every call that is probably to or from a US person?

I also don't understand how or why FISC issues court orders for an American person without cause.
1.6.2006 10:50pm
subpatre (mail):
Diversity Hire, Noah Klein:
The comment states "Overseas surveillance demonstrates..."

Medis: "... targeted under §1802 ..."
1.6.2006 10:57pm
Medis:
subpatre,

That is part of what I find confusing. If the initial surveillance is overseas surveillance targeting a foreigner, then 1802 is irrelevant, because that is not electronic surveillance within the meaning of FISA. And if we are doing that kind of surveillance overseas and someone from the US happens to call, or Obul happens to call someone in the US, it still isn't electronic surveillance within the meaning of FISA. That is because even if the person in the US is a US person, they were not the target of the surveillance. Accordingly, no provision of 1801(f) applies.

So, FISA has nothing to say so far about this surveillance. As for targeting the group in Maryland and Alan, it sounds like we have probable cause (although I might want to know a few more details about the Maryland conversation). So, we could start electronic surveillance on them immediately, and get a warrant within 72 hours.
1.6.2006 11:29pm
jukeboxgrad (mail):
sub,

"Assume a foreigner in Syria named Obul is targeted under §1802"

My understanding of FISA is that it doesn't concern itself with an American in Syria, let alone a foreigner in Syria. So this is an odd bit of illogic before you even get off the ground. In other words, what Medis said.

I thought we would all agree that NSA can do whatever it likes with regard to "a foreigner in Syria" without being troubled by 1802 or any other part of FISA.

"What can be listened to or recorded of the call to the citizens’ group in Maryland?"

Everything, provided there is (at least) a retroactive FISA order. In other words, what DtI said.

"What can be listened to or recorded of the call to Alan in the US?"

Ditto.

"Can a FISA warrant be obtained for surveillance targeting the American citizens’ group or Alan?"

If there is probable cause to think they are helping AQ, of course. And that probable cause could obviously be gained via the steps discussed above.

"jukeboxgrad have said : 1a – Nothing; 1b – Nothing; 2 – 'No'"

You must be thinking of a different jukeboxgrad.

"I fail to understand how the contents are determined to be listenable if they aren't listened to."

I think you're assuming "[shall not be] used for any purpose" means "can't even listen to it." I don't make that assumption.

Now that I've addressed your hypos, here's one for you (borrowed from Andrew J. Lazarus). Can the President, using his Article II (and/or AUMF) powers, order the manufacture, deployment, and use of chemical weapons, even if Congress passes laws and ratifies treaties prohibiting such manufacture and use?
1.7.2006 1:08am
Just an Observer:
DtI,

Thanks for posting the link to that Congressional Research Service memo. It is very useful, and should be required reading for anyone who says, "Nobody claims the NSA program is illegal."

Ultimately and theoretically, only a court can answer that question authoritatively. But this document provides an intellectual analysis and puts a stake in the ground:

From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of "electronic surveillance" within the meaning of FISA or any activity regulated under Title III, Congress intended to cover the entire field with these statutes. To the extent that the NSA activity is not permitted by some reading of Title III or FISA, it may represent an exercise of presidential power at its lowest ebb, in which case exclusive presidential control is sustainable only by "disabling Congress from acting upon the subject." While courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign
intelligence information. Given such uncertainty, the Administration’s legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests.

Many readers here are probably familiar with CRS and its American Law Division. For those who are not, it is a nonpartisan research arm of the Library of Congress. Its mission is to support members of Congress with objective research.
1.7.2006 1:13am
KMAJ (mail):
JaO,

The Congressional Research Service carries no more weight, probably less, than Cass Sunstein. What you are presenting is another opinion. While I don't disavow it, I do not give it any more weight than any other opinion. There are some very key hedge words in this opinion:

appears unlikely
it would likewise appear
not permitted by some reading
it may represent
no court has held squarely
does not seem

Clearly, whoever wrote this opinion took it upon himself to place this issue in Jackson's category 3, with his low ebb assumption.

The one thing I have said all along is that the scope of this case has never been addressed by SCOTUS, which this opinion writer finally admits near the end:

"the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign
intelligence information
."

Without that ruling, this is an exercise in opinion exchanges without either side being able to claim any definitive correctness to their position.
1.7.2006 2:30am
Noah Klein (mail):
KMAJ:

I disagree with your assessment as to the value and the final conclusion of the opinion by CRS.

First, as to the opinion's value, the mere fact that it is the most footnoted and thought-out assessment of the program and it legality makes it more authoritative than Cass Sunstein's opinion. Cass Sunstein's opinion does not go into the legislative history of FISA nor the relevant cases both prior to and after FISA.

The CRS opinion is also more authoritative, because it is the opinion of a non-partisan body whose membership was hired by Congressional leaders. The fact that this is an opinion that is not from one or the other political viewpoint makes it more authorative.

The CRS opinion is finally more authoritative than any other opinion written because it so far represents the opinion of the Congress of the United States. Since no legislative or other investigative action has been taken so far as to this program, the CRS report represents the Congress opinion on the issue. Yet if you point that this was written by a Congressional service, which naturally would react poorly to the idea of ceding power to the executive, then you would be right. Yet it does give us some insight into how Congress itself might view this issue.

Finally, as to the conclusion of the report, it is obvious that the CRS hedges its bets and does not maintain a position on the legality of a program that is not fully known, but it clearly refutes the defense of the program that the administration has presented. By so refuting and pretty convincingly refuting the justification of the executive, it implies that the program is not legal.

Noah
1.7.2006 4:16am
KMAJ (mail):
Noah,

I respect your right to want to give this 'memo' more weight, but I seriously doubt you can give the authors of the memo, Elizabeth B. Bazan and Jennifer K. Elsea, more credibility than Cass Sunstein, who has written the textbook used in many law schools to teach Constitutional Law. You do mention that they may have prejudice towards legislative branch powers, also, working in the non-partisan CRS does not preclude them from personally having partisan legal points of view. The fact they try to assign a category three low ebb tag to their analysis creates a leap of faith in their opinion, because it totally ignores the AUMF, which the SCOTUS Hamdi ruling seems to indicate they will determine it to be category one, which would put the executive powers at their highest.

----------------
Alan J. Meese
Cabell Research Professor of Law
College of William and Mary

1) By a September 14 resolution, Congress has authorized the use of "all necessary and appropriate force" against the organization that perpetrated the September 11 attacks, an organization that is still active.

2) That same resolution recognized that the "President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."

3) In implementing Congress's authorization of military operations, the President is functioning as the Commander-in-Chief of the Armed Forces. The Commander-in-Chief power is conferred by the Constitution, and not by Congress. Congress cannot strip the President of this power.

4) The Commander-in-Chief power includes the power to initiate offensive and defensive military actions against the foe designated by Congress. Such operations by necessity require the Commander-in-Chief to gather actionable intelligence.

5) Congress could not by ordinary legislation abrogate the President's Commander-in-Chief power or assign it to other actors, even judges. For instance, after declaring War against Japan in 1941, Congress could not require the President to obtain a warrant before bombing the enemy or shooting down enemy warplanes. Nor could Congress require the President to obtain a warrant before intercepting the enemy's battlefield communications, even if the battelfield was on American soil, as it was after the Japanese invaded Alaska in 1942.

6) The President does not lose his power as Commander-in-Chief if the enemy allies itself with residents of the United States. If, during WWII, residents of Alaska were sending radio signals to Japanese intelligence officers, Congress could not require the President to obtain a warrant before listening to those communications. In the same way, if a US resident with known ties to Al Qaeda is making a phone call to Mullah Omar's number in Afghanistan, Congress may not require the President to obtain a warrant before listening in.

7) In 2002, the FISA Court of Appeals itself said that the President has the inherent authority to conduct warrantless searches and that Congress could not abridge that authority. That language was dicta, however. It's my understanding that other appellate courts have reached similar conclusion, i.e., that the President possesses such inherent power as Commander-in-Chief.

8) It seems to me that those who take the contrary position must also argue that Congress may tell the President whom to appoint as head of the joint chiefs, tell the President how to evaluate his military commanders, tell the President whom to appoint to be Secretary of Commerce, tell the President he cannot veto a bill, etc. Such a position makes Congress supreme, contrary to the text and structure of the Constitution.

9) Let me close with a quote from Joseph Story about the Commander-in-Chief power.

"Of all the cases and concerns of government, the direction of war most peculiarly demands those qualities, which distinguish the exercise of power by a single hand. Unity of plan, promptitude, activity, and decision, are indispensable to success; and these can scarcely exist, except when a single magistrate is entrusted exclusively with the power."

Allowing Congress to tell the President how to conduct military operations contravenes the framers' vision of "Unity of plan, promptitude, activity, and decision."

Let me also add two things:

1. Gathering military intelligence pursuant to an authorization of force is, in my view, an exercise of the power as Commander-in-Chief and not legislative. It does not matter that the enemies are in this country, or that they happen to be American citizens. If, during the Korean War, the President suspected that an American citizen in Hawaii was sending signals to a Chinese submarine hoping to sink a departing fleet, I don't think the effort to listen in on the conversation would be "legislative." At the same time, I realize that trying to pigeonhole these things might be a spurious exercise and might be answering the wrong question.

2. Presumably the President would argue, consistent with the dicta in In re Sealed Case, 310 F.3d 717, 742 (F.I.S. Ct. of Rev. 2002) that Congress cannot, via FISA prevent him from conducting otherwise reasonable searches and thereby interfere with his powers as Commander-in-Chief. The President could argue that allowing Congress to interfere with the President's powers would contravene Article II and thus offend the Rule of Law.


Meese on the Fourth Amendment Argument:

First, the text of the Amendment merely forbids unreasonable seizures and searches. It does not purport to require warrants. Instead, it simply provides that, if an officer seeks to obtain a warrant, he must demonstrate probable cause to obtain one. Thus the amendment regulates the issuance of warrants, but it does not require them.

5) Here it's helpful to recount the history behind the warrant clause. The ordinary remedy for an unreasonable search would be a trespass action, brought before a jury in state court. (Recall that the 1789 constitution did not require the creation of lower federal courts. Plus, an action against a federal officer might not meet the diversity of citizenship test for federal jurisdiction if there were federal courts.) By limiting the availability of warrants, the clause prevented Congress from thereby immunizing federal officers from trespass actions in state court. And, a federal officer who could not obtain a warrant would then have to "take his chances" before a local jury, which would be the final word on "reasonableness."

6) What though about current law? Hasn't the Supreme Court ignored the text and said that officers "ordinarily" must obtain a warrant supported by probable cause? Not really. Take the classic seizure, an arrest for a felony. So long as an officer has probable cause, he need not obtain a warrant to arrest a felon, even if the felon is unconscious and the officer can obtain a warrant in 1 minute by telephone. Ditto for an arrest of someone who commits a misdemeanor in the presence of the officer. (As, for instance, when a police officer pulls one over for reckless driving and arrests one "on the spot," even though he could easily obtain a telephonic warrant.) In other words, the vast majority of seizures need not be supported by a warrant under current law. Indeed, some seizures may take place even without probable cause, although these must be brief, i.e., 1 hour.

Ditto for a search of the felon incident to arrest, the search of a car, the search of a container in a car, the inventory search of a car that is impounded (which may take place with no probable cause), an administrative search of certain businesses, etc. As I understand things, depending how you count, there are two dozen "exceptions" to the warrant requirement, though in fact it seems like the exceptions swallow the rule. Plus, these exceptions apply even if the police could very easily obtain a warrant, e.g., even if the car is immobilized.

7) Finally, and most pertinently, so far as I know, the Supreme Court has never held that the President, Acting as Commander-in-Chief, must obtain a warrant before intercepting communications between a US resident and an enemy with whom we are at war. In fact, the Court has expressly reserved the question.

8) But, to reiterate, the question whether the President's searches violated the 4th Amendment would be answered simply by asking if the search is reasonable, and not by applying some extra-constitutional presumption that a warrant must be involved.



To further support the AUMF argument is part of the SCOTUS ruling in Hamdi:

"The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government’s alternative position, that Congress has in fact authorized Hamdi’s detention, through the AUMF."


I think it is evident that they give certain deferential weight to what the AUMF authorized, if it authorized detention, would it not authorize specific intelligence gathering ? SCOTUS does not address the government's plenary auhtority / 'inherent powers' because they agree with the government's contention of Congressional authorization 'through the AUMF'.

SCOTUS agreed even though the law states:

"No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress" (18 U.S.C. s 4001)

The AUMF did not specifically address this law, just as it did not specifically address FISA.

I return to my original premise, not that I am right and you are wrong, but that niether of us can make a claim to definitive certainty and there are plenty of opinions to support both sides. So you are free to disagree, and I will respect your right to your opinion, but will reserve my right to disagree until SCOTUS makes a ruling one way or the other.
1.7.2006 6:32am
Medis:
KMAJ,

First, I agree with you that the CRS memo is not definitive--indeed, it is carefully qualified by its own terms. Second, it is possible to see some general bias in favor of the constitutionality of Congress's actions, given that they are ultimately employed by Congress (needless to say, the same possibility of bias would apply to the DOJ).

That said, if you are going by expertise, this memo should be given more weight on certain issues--namely the statutory interpretation issues--than Sunstein's opinion. And that is not because Cass is not a smart guy. Rather, that is because when it comes to interpreting federal statutes, the American Law division of the CRS, and not Cass, is the real expert. Indeed, that is exactly what the American Law division does. Moreover, I have been following Cass's comments, and he has never to my knowledge taken a serious look at the statutes, and certainly hasn't researched the legislative history of the statutes to the extent that the CRS did--and again, such research is exactly what the American Law division specializes in.

Incidentally, as an aside, it is a bit of a mistake to portray this as a battle between the individual authors of this memo and individual professors. The authors of the memo are not acting as individuals--they are writing on behalf of the American Law division, and the entire CRS, and undoubtedly they had their work reviewed by and received input from both their peers and their superiors. That is part of what makes such a memo more authoritative than the individual opinions of professors, who generally can be described as independent contractors working without supervision.

So, if you are going to defer to the parties with the most expertise in this particular area, then the American Law division of the CRS is who you should be deferring to. On general constitutional matters, however, one might not take the CRS to be the greatest expert--although when the specific issue is the constitutionality of federal statutes, one is getting back into their area of expertise.

Personally, though, I am willing just to evaluate the arguments, rather than judge them based on the expertise of who is making those arguments. Incidentally, of course they do not ignore the 2001 AUMF, nor Hamdi--they include extensive discussions of all of those issues in their memo.
1.7.2006 10:30am
Just an Observer:
KMAJ:

"the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign
intelligence information."

Without that ruling, this is an exercise in opinion exchanges without either side being able to claim any definitive correctness to their position.

That is as true a tautology as has ever been written!

The CRS memo, by definition, does not purport to be a court opinion, which can only come from a court. I continue to hope that this matter eventually enjoys judicial resolution.

But the memo does rebut the assertion — advanced frequently in the blog, for example, by several administration apologists on no more authority than their own opinion — that FISA's regulation of foreign-power surveillance is without doubt unconstitutional. I also note that the Bush adminstration itself fails even to assert that is the case.

As for your dismissal, "The Congressional Research Service carries no more weight, probably less, than Cass Sunstein," I believe you are quite wrong. I respect Professor Sunstein and have followed his comments on this matter, and nowhere have I seen him even attempt the statutory analysis at the level of rigor and detail CRS did.

[BTW, this thread is probably not the best venue for us to continue discussing the CRS memo. I see that Prof. Kerr has begun a top-level thread dedicated to it.]
1.7.2006 10:50am
Michael B (mail):
jukeboxgrad,

With "How do your know otherwise?" I was responding to you here:

"You claim the NSA program is "very far indeed from ... reflecting domestic, political/partisan spying efforts." How do you know? If it was indeed "reflecting domestic, political/partisan spying efforts," how would you find out?"
The point being, wide ranging speculation is not factual nor is it grounds for a very relevant discussion. Hence my rhetorical question concerning Count Dracula. Similarly with the Quaker grandmother. Focus.
1.7.2006 1:03pm
Medis:
Michael B,

But a lack of knowledge is a valid institutional design problem, and hence relevant to our discussion. In other words, many of the sources you listed suggest that in order for oversight to be effective, those exercising oversight must be well-informed. Conversely, when such well-informed oversight does not exist, abuses of power tend to rise in frequency and extent.
1.7.2006 1:14pm
jukeboxgrad (mail):
Michael,

I have never made the claim that the NSA program is "reflecting domestic, political/partisan spying efforts" (although I certainly think it's possible). I have pointed out there are signs that Bush does indeed engage in various forms of domestic political spying and pressure (e.g., via the Pentagon and the IRS). I have shown proof of this, which you haven't refuted. However, you did indeed make the opposite claim, that the NSA program is "very far indeed from ... reflecting domestic, political/partisan spying efforts."

I asked you to provide any evidence you have to support this claim (other than your assumption that Bush is a jolly good fellow and of course would never do such a thing).

"wide ranging speculation is not factual"

Exactly. Your categorical, emphatic, confident statement that the NSA program is "very far indeed from ... reflecting domestic, political/partisan spying efforts" is indeed a good example of "wide ranging speculation" masquerading as proven fact. That is, until you present something "factual" to back it up. Answering a question with a question is a poor substitute for providing proof to back up your "wide ranging speculation."

The bankruptcy of your position is also in reflected in the fact that you've ignored a number of other simple and fair questions.
1.7.2006 3:30pm
Michael B (mail):
jukeboxgrad,

The bankruptcy of my position?

Are you attempting to get a rise out of me? At this point I've barely taken a position. Apparently you're conflating "Bush" with the Pentagon? I'm not sure since your language is far from precise, to put it mildly. Perhaps you're attributing something to me that should be attributed to someone else? I'm not sure. I don't comprehend your charge in the least.

To be clear, in stating "very far indeed from ... reflecting domestic, political/partisan spying efforts" I'm simply indicating there has not been the most remote evidence to this effect. Of course it's "possible," but that's where the overly leveraged speculation comes in. Are you're conflating the NSA program in question with the Quaker grandmother scenario? I'm not dismissing that as an issue, I more simply don't see any relationship. Obviously there's a general concern and there are all types of "possibilities" which can be speculated on, but I don't see the relationship.

Medis,

Similarly, you may wish to reread what I've stated, it sounds as though you're attributing a position to me which I have not taken. I remain in a highly tentative mode at this point and I clearly indicated the "oversight" in communicating to one FICA judge and a few members of Congress only was not equivalent to std. "oversight" per se; in that regard I thought I was explicit. I also emphasized we're waiting for many of the facts to come in, which is yet another reason why I remain in a tentative mode in terms of taking any definitive or certainly final position. So again, I wonder if you're attributing something to me which is more perceived than actual.
1.7.2006 4:44pm
Noah Klein (mail):
Michael,

The Pentagon and its leadership are part of the Bush Administration. Their actions reflect on the leadership of George Bush. And the importance of the Quaker grandmother example is the penchant for abuse of a surveillance program that provides no check on the executive.

Noah
1.7.2006 5:13pm
Michael B (mail):
Yes, and the U. S. Post Office and its leadership and personnel are part of the same administration. Good grief, do we really need to quibble or argue over this kind of stuff? We're (or at least I am) attempting to discuss this NSA program and what we positively do know about it. That very much is one of the reasons why my position is tentative, because in critical areas we still don't know. Obviously there is the "potential," the "possibility," etc. for abuse throughout each and every particular of the Federal govt.

I suppose we might even blame the founding fathers still, they started it all, so it must be their fault to at least some minuscule degree even now, at this late date.
1.7.2006 6:03pm
jukeboxgrad (mail):
Michael,

"Apparently you're conflating 'Bush' with the Pentagon?"

He's the CIC, and he never lets us forget that, so "conflating" has nothing to do with it. Unless you want to claim that the Pentagon is following orders left over from Clinton, because they didn't notice that he left the White House.

"At this point I've barely taken a position."

In my opinion, your statements (such as "very far indeed from secretive or reflecting domestic, political/partisan spying efforts, the NSA program has been signed off on a monthly basis for something like thirty months, has had congressional oversight or acknowledgements, and has been targeted at international terrorist surveillance interest") do indeed indicate you've taken a position. Your position seems to be that administration talking points should be uncritically accepted and regurgitated as if they were proven facts, even in the absence of proof, and even though this administration has made many statements which have proven to be unreliable.

And yes, your position is revealed as bankrupt when you sidestep simple questions, such as those I asked here.

"Are you attempting to get a rise out of me?"

No, but I am attempting (again) to get a straight answer to a few simple questions.
1.7.2006 6:44pm
jukeboxgrad (mail):
In other words, you've taken a position, but then claim "I've barely taken a position," which seems to me to be an attempt to avoid taking responsibility for the implications of that position. That's why I think "bankrupt" is a pretty good description.
1.7.2006 6:47pm
Michael B (mail):
jukeboxgrad,

When I said I've "barely taken a position" I meant precisely that. It doesn't mean I've taken no position whatsoever on any aspect whatsoever, it means I've barely taken a position. For example, when I said - "very far indeed from secretive or reflecting domestic, political/partisan spying efforts, the NSA program has been signed off on a monthly basis for something like thirty months, has had congressional oversight or acknowledgements, and has been targeted at international terrorist surveillance interest" - I was stating a combination of facts and what has been expressed to this point. Is that a "position"? Yes, it's a position as regards some of the facts and statements which have not been contradicted, at least not that I've heard, but it's hardly a final, definitive position or anything even remotely close to it. Are you disputing any of those facts or statements as such?

1) What (specific) evidence do you have to the contrary?

2) Are you saying the NSA program positively has been associated with the grandmother?

3) Are you stating the program has not been signed off on a monthly basis for something like 30 months?

4) Are you saying that at least some members of Congress were not informed of the program? (If not, then this is in fact obvious evidence that it was not secretive simply within the executive branch.)

5) Are you saying one of the FISA court judges was not notified of the program? (ibid.)

6) Are you saying we do have evidence the program was used for domestic political spying? If so, what is that evidence?

7) Are you saying the program was not targeted at international terrorist surveillance interests? If so, what other use was it put to?

Previously more implicitly, now explicitly, those are the questions I've directed in your direction. You've answered none of them yourself, beyond dismissing them. Too, unless you can begin to better comprehend what I've said and represent it for what it is instead of exaggerating it and indulging in ad hominem sniffs, then we can just as easily refrain from responding to one another.
1.7.2006 7:45pm
jukeboxgrad (mail):
Michael,

"I was stating a combination of facts and what has been expressed to this point."

Actually, you made no attempt whatsoever to distinguish between "facts," as compared with "what has been expressed [by the administration] to this point." In other words, you treated "what has been expressed [by the administration] to this point" as indistinguishable from fact. This tells me quite a bit about your "position."

And your roundabout, vague admission that "what has been expressed [by the administration] to this point" is not necessarily "fact" comes quite belatedly (you've posted eight other messages in the interim). But better late than never.

"statements which have not been contradicted, at least not that I've heard"

Try reading a few threads on this blog.

By the way, you've made it clear that anything Leader says you treat as fact, until you see positive proof of contradiction, even though he presents little or no evidence, and even though so many of his past statements have proven to be unreliable. This also tells us a lot about your "position."

"it's hardly a final, definitive position or anything even remotely close to it"

Your unqualified, flat, confident, emphatic statement (regurgitating administration talking points) appeared to be quite a bit more than "remotely close" to a "final, definitive position."

"Are you disputing any of those facts or statements as such?"

Try reading a few threads on this blog.

"we can just as easily refrain from responding to one another."

There's nothing new about the fact that you are still refraining from responding to my simple, direct questions. So your threat that you will refrain from responding to me leaves me no worse off than before you made the threat.

And it makes no difference to me that you refrain from responding. Your failure to respond is, in itself, sufficiently revealing.

As for me, you can rest assured that I'll respond to your posts whenever I feel like it.

"You've answered none of them yourself"

Your new batch of questions (to the extent that they aren't just pure straw-man silliness) have been addressed, for the most part, by myself and by others, on this thread and on other threads. Try reading a few threads on this blog. And try grasping this: answering a question with a question is not a substitute for answering the question.
1.7.2006 9:24pm
Michael B (mail):
jukebox authoritarian,

Yet again the ad hominem disdain. Shocked, I'm shocked ... I don't at all mind engagement, but if you're fixated on this presumptive and ad hominem mode while also baring your authoritarian contempt, that's entirely up to you. I'll primarily engage on the issues and discussion, but will answer you in kind as well. Up to you.

Firstly, as regards your question concerning the grandmother, I answered that. By contrast, when I asked you a direct question concerning that situation, you sneered at and dismissed the question out of hand. Regarding the Article II question vis-a-vis chemical weapons, I didn't answer that because I (also) don't believe any president can create Stalinist styled Gulags if (even beyond the humane question) statutory limits proscribe them, nor do I believe any president can indulge in murder or genocide if statutory limits proscribe them. However I don't see those questions (chemical weapons, Stalinist styled Gulags, murder or genocide) as being germane or comparable to the NSA program per se (in terms of the existential issues in general).

Is it (your Article II question) germane to a more abstract or restricted discussion of the Constitutional and statutory framework? Yes, in that more abstracted sense it is. However, as I've already and repeatedly indicated, my concern and valuation of all this is with both the existential aspects (e.g., near term and longer term threats, what this NSA program is in concrete terms) and the Constitutional and statutory frameworks, all together, taken as a whole and not in a fragmentary sense. Once again and broadly stated, my approach is to look at:

"... the specific and detailed sets of facts (which we're still learning), the Constitutional and statutory interests, historical developments (e.g., legal, technology) and the full set of existential evaluations, threats, likely and foreseeable developments, etc."

Somewhat more formally stated, my approach is concerned with the whole, the entirety, and the dialectical tensions as balanced between the parts. E.g., the dialectic within the legal "parts" themselves such as between the Constitutional and the statutory parameters; the tensions between the existential aspects such as the need for surveillance activities commensurate with the near-term and longer-term threats; tensions or dialectics between the existential and the legal aspects of the discussion, to help ensure the discussion is neither too abstract (focusing on the law while ignoring the realities) nor debased or cynical (focusing on the realities while ignoring the Constitutional and/or statutory balances and proscriptions).

Still on this Article II question of yours, since you're virtually obsessed with it, I could ask a theoretical/rhetorical question as well. To wit: would you be willing to allow something even far more secretive than this NSA program if you knew such an effort would prevent the nuclear annihilation of New York, Chicago and L.A.? Do you see what I'm getting at? Yes, your rhetorical/theoretical question suits your legal argument. But my rhetorical/theoretical question suits my existential argument. So, at some length now, that's why I didn't previously answer your Article II question.

Regarding your charge, yet again forwarded with sneering contempt, that I conflated the facts and the statements, I simply feel the two in that short list were and are easily and readily distinguishable.

Further still, and despite your display of sneering contempt in this direction as well, I have read (virtually) all the twelve or fifteen or more threads here on this topic. In short, no, the questions I asked are neither strawman nor silly, to the contrary since they serve to define some of the parameters or boundaries of the overall discussion. Nor have you or likeminded commentators addressed them, with perhaps one or two exceptions.

Instead you've contemptuously dismissed them out of hand, rather explicitly expressing an authoritarian disdain, not a willingness to seriously engage.

Finally, I'll try again: those seven (7) questions you were contemptuous of. More expressions of authoritarian contempt? Or will you answer them this time? I'll engage on any level you care. I'd prefer more serious engagement on the issues per se and fewer ad hominem forays, but that's up to you. Imo you're making both tactical mistakes (explicitly revealing an authoritarian's contempt, dismissive of questions when they're directed at you while simultaneously demanding answers when you ask the questions) as well as strategic mistakes (e.g., construing the debate/discussion in narrower terms than they should be construed).
1.8.2006 12:10am
Noah Klein (mail):
Michael,

I will answer your questions even though to be fair jukebox and others have asked theirs first and have yet to get an answer from those expressing the same opinion as yourself.

1) As to the evidence I have to the contrary that this was a program that surveiled international terrorists, we get it to a tricky bit of language here. These communications that were surveiled included one end in the U.S. and one end in a foreign country. By its very definition there it is international. Yet the important question here is who was the target of the surveillance. Gonzales and the DOJ has indicated that the target were U.S. persons. Here is the link to that point. Since the target of the spying were U.S. citizens certain procedures as laid out by FISA must be followed. They weren't and that is why we are so up in arms.

2) No. The only specific target that I am aware of is Iyman Farris (not sure if I got that name right). The targets, like other operational knowledge, is still classified and thus not publicly known. We don't know whether this program was limited, whether it was widespread or whether it was used for political purposes yet. The relevance of the grandmother, torture and other instances where the administration may have intruded on civil liberties is that since we really do not have a full understanding of the program, it is foolish, in light of previous instances, to accept the administration's word that this was limited and only used for terrorism.

3) The program has been signed off by the president and the AG and the DOJ somewhere between every 30 or 45 days. This is the problem though. Let me give you an example. If you were to consistently violate a law, let's say a drug law, and every month or so you reexamined whether it was right or wrong for you to violate that law and found that it was ok to do it, then would that be an appropriate defense in court? No, of course it wouldn't. The president examining a program that he initially approved of is not an adequate check on executive power. Each of the three branches are supposed to check each other. If Congress were to write a law, which said that they would interpret what Constitution means and their rulings would be the final appeal. This law would be unconstitutional, even if they reexamined the law every 30 days.

4) Eight members of Congress were informed on what seems to be an bi-annual basis or possibly every three months. We know this not just because the administration told us, but also because some of those members wrote letters of protest against this program. This procedure is required by the National Security Act of 1947. These members though are not able to conduct meaningful oversight. As I have said numerous times in the past, the full intel committee of either house needs to have knowledge of something to conduct oversight. One member cannot cut off funding and one member cannot compel testimony before a committee where everyone is not allowed to know what is happening.

I have asked many times for somebody to provide proof otherwise and I have never been answered. Can you provide proof that I am wrong.

5) I have responded to this also but I will do so one more time. Yes, the presiding judge on the court was informed of the NSA program in question. Yet, as I have said in the past, a judge cannot compel the executive to stop any action without first somebody with standing bringing suit to their court. This was impossible because the program was secret, the activities of the court are secret and the structure of the court is non-adversarial. The judge by her lonesome could not stop the president even if she wanted.

6) No. We also do not have proof to the opposite, but I won't request that you prove a negative. I will simply say that in light of past activities both by this president and previous presidents, which are public knowledge, any surveillance of U.S. persons without a check on the executive must be suspect.

7) As with my answer to your first question, this depends on what you mean. The communications were obviously international. The targets of the surveillance were U.S. persons. Please look at the link I made above. Since the targets were U.S. persons, there is a specific procedure that needs to be followed. It wasn't and the executive has claimed he has no reason to follow them. I find a president, who is sworn to faithfully execute the law, who ignores the law to be a dangerous thing in the American Republic. Wouldn't you agree?

Noah
1.8.2006 7:44am
Noah Klein (mail):
Michael,

The secretive nature of the program is not the issue. The government has had intelligence agencies for a long time now. These agencies have conducted activities that have been very secret. Some of the first activities by our intelligence agencies are still secret. The issue here lies with the violation of the privacy of Americans and also the violation of an the United States law, which our president is sworn to uphold.

To answer your question more directly, yes. I would hope that the executive would employ every LEGAL means to prevent such a disaster. Especially, since I live in L.A.

The question remains though, do you think that the executive should ignore the laws and treaties of this country to "protect" us? Specifically, can the president violate the UCMJ, the Convention on Toture, the laws against chemical or biological weapons, if he feels it is necessary for our national security? If not, why can he violate FISA?

Noah
1.8.2006 7:52am
Michael B (mail):
Will answer later, perhaps at some length. I've essentially answered some of what you're indicating in the more recent CRS thread, by reference to the following article, Constitutional Spying: The solution to the FISA problem. I will briefly note, without at all being sarcastic (to the contrary as there is a salient and recurring point I'm making here), that when you indicate aspects of this involve tricky language, that is obvious enough since that pervades virtually every aspect of this entire discussion; if it weren't tricky it wouldn't invoke such a multi-faceted and extensive discussion. On the other hand, part of what is needed is to distinguish tricky language from basic meaning and content. I'm sure you wouldn't disagree in the abstract or in principle, nonetheless that theme does pervade the entire discussion.

As the linked Schmitt article helps to indicate, this is not simply or solely a legal problem. It's institutional, social/political, etc., etc. But will answer more specifically later.
1.8.2006 1:35pm
jukeboxgrad (mail):
Michael,

"as regards your question concerning the grandmother, I answered that"

I asked this question: "In what way is monitoring a 79-year-old Quaker grandmother something other than 'domestic political spying?' "

I also asked you if this is proper.

The closest you came to answering this question, as far as I can tell, is here. What you said there, as far as I can tell, is an evasion, not an answer.

"when I asked you a direct question concerning that situation, you sneered at and dismissed the question out of hand"

Your "direct question," as far as I can tell, was this: "Are you're conflating the NSA program in question with the Quaker grandmother scenario?" In my opinion, that is nothing by a cheap straw-man evasion, attempting to avoid my question by posing an alternate question of your own.

In any case, here's the answer to your question: the "Quaker grandmother scenario" is an example of domestic political spying, by this administration. If Bush is willing to use the Pentagon as a political tool (as well as the IRS, to pick another example), there is no reason to assume he is not also willing to use the NSA in a similar manner.

This all goes back to your suggestion, here, that Bush would never engage in such a thing as "domestic political spying."

I gave an example of something that appears to be, in my opinion, an example of "domestic political spying." I asked you to explain how what the Pentagon did is something other than "domestic political spying." I asked you if you approve of what the Pentagon did. You have offered nothing resembling a straight answer to these fair and simple questions. These questions preceded your "direct question" to me, by the way. You're being evasive, in other words.

"nor do I believe any president can indulge in murder or genocide if statutory limits proscribe them"

The AUMF/Article II argument you appear to support claims that the president has the right to ignore "statutory limits," if the president deems necessary to protect our security. Therefore, what legal barrier would stand in the way of a president who decided that it was necesary to use chemical weapons to protect our national security?

Where is it written in AUMF or Article II that a president may ignore statutory limits with regard to wiretapping, but not with regard to chemical weapons, murder, or a thousand other things?

"that's why I didn't previously answer your Article II question"

You still haven't answered my Article II question, as well as various other questions I've asked.

"would you be willing to allow something even far more secretive than this NSA program if you knew ... "

The problem with the NSA program is not that it's secretive. The problem with the NSA program is that it's (as far as we can tell) illegal.

Aside from that, I find your hypothetical to be absurd. You might as well ask "would you accept George Bush as Emperor for Life and Son of God if you knew this was the only way to protect the US from certain nuclear annihilation."

"Regarding your charge ... that I conflated the facts and the statements, I simply feel the two in that short list were and are easily and readily distinguishable."

Then how odd that you did nothing to distinguish them, either at the time you made the original statement, or at any time since. I still have no idea which of those items you consider proven "facts," as compared to which you consider mere "statements."

"the questions I asked are neither strawman nor silly"

Here's an example of one of your allegedly non-silly questions: "Are you saying the NSA program positively has been associated with the grandmother." It's a silly question because nothing I've said could be reasonably contrued that way. I've explained the relevance of the grandmother anecdote, and its relevance does not depend on claiming that "the NSA program positively has been associated with the grandmother." I did not make that claim, and your question is therefore a strawman.

"tensions or dialectics between the existential and the legal aspects of the discussion"

English translation of that fancy-schmancy language: "if we can get the people to be scared enough, they'll think it's OK that we're ripping up laws."
1.8.2006 3:26pm
Michael B (mail):
"... evasion, not an answer." jukeboxgrad

This from someone who did not answer a single one of the seven questions asked. And again, I did answer you, specifically I indicated I'm interested in the NSA program without dismissing the Quaker/grandmother situation as an issue. Re-read what I already posted. So by your definition of silliness your repetition of this complaint is silly since, to use your quote on my own behalf, "nothing I've said can be reasonably construed" to dismiss this as an issue.

To repeat, my focus is these threads is the NSA program in terms of the facts we positively do know about it and what has been stated/alleged about it. Broadly viewed or in full context, yet again: "... the specific and detailed sets of facts (which we're still learning), the Constitutional and statutory interests, historical developments (e.g., legal, technology) and the full set of existential evaluations, threats, likely and foreseeable developments, etc."

If you refuse to acknowledge such is my approach and take me at face value, at least from that general vantage point and approach, I can't do anything about that. You have moved, at least tactically, from displays of sneering and contemptuous dismissiveness to milder forms of the same, but that's about it.

Noah,

I'm not going to quibble or argue over the details but I have never dismissed the statutory concern as such with this program, I'm more simply attempting to delineate the facts vs. the unknowns vs. the pro and con allegations or speculations and attempting to see if some commentators can, bare minimum, agree to those distinctions or categories as such. No more.

1) Yes, the program targets both U.S. persons and foreign jihadists.

2) No, the grandmother was not targeted as a result of this NSA program, or better put, we have no evidence to think so. Again, that's all I'm asking. And yes, we can certainly speculate otherwise or make allegations. But still again, if we do so I'm rather simply asking we openly acknowledge that such is speculation or allegations, therein distinguishing it from known fact.

3) Yes, the program has been repeatedly signed off. Still again, if it needs to be said, that's literally all I was asking since bare minimum it reflects the simple fact the President was not attempting to hide his role in it, indeed, pointedly to the contrary. (And people previously have complained about the putatively secretive nature of the program, if you have not, fine, I accept that.)

4) Yes, some members of Congress were informed of the program, ibid. When you ask "I have asked many times for somebody to provide proof otherwise and I have never been answered. Can you provide proof that I am wrong." I've already answered that, I never alleged otherwise, to the contrary.

5) "Yes, the presiding judge on the court was informed of the NSA program in question." Still again, a simple fact, and again, absolute bare minimum it helps to show the President was not attempting to hide his role in this program. That all that was asked, no more, though no less either.

6) No, we agree, we don't have any proof at all this was used for domestic political spying. Speculate, allege, caution, etc. otherwise, fine, just acknowledge it as speculation and unless it has foundations admit it's only speculation. Yet again still, that's all I was asking.

7) This largely refers back to prior questions, which you note. And yes I agree concerning upholding the law, but simply acknowledge by approach, in bold print, in my reply to jukebox, at the end of the second paragraph above.

Summarizing, in asking those questions it was simply to see if some could mutually acknowledge what is fact vs. administration statements vs. speculations and allegations. That's it.

It's now plain that even that minor task can't be accomplished to any very thorough-going degree, though you come closer to those acknowledgements than some others. The additional point being, if we can't make those simpler acknowledgements, then fruitful and mutually agreed upon additional discussion points, moving beyond rudimentary facts, is highly unlikely, if not in fact impossible.
1.8.2006 10:33pm
Noah Klein (mail):
Michael,

If you read what others have written, they state the same facts that you and I have. Yet we have been accepting these facts for days. I have noticed that we answer your questions, yet you fail to answer our questions.

Why can the president ignore and override FISA?

Noah
1.8.2006 10:54pm
Michael B (mail):
My (prior) post, in bold, end of second graph above. Then read my final statement where I indicated: The additional point being, if we can't make those simpler acknowledgements, then fruitful and mutually agreed upon additional discussion points, moving beyond rudimentary facts, is highly unlikely, if not in fact impossible.. We're talking past one another. Also, I disagree people have admitted to those facts in a simple and straightforward manner, without consequential caveats.

However, I intended to previously address the following and, if only in general terms, it begins to answer your question. In response to: "would you be willing to allow something even far more secretive than this NSA program if you knew such an effort would prevent the nuclear annihilation of New York, Chicago and L.A.?" your reply was:

"To answer your question more directly, yes. I would hope that the executive would employ every LEGAL means to prevent such a disaster. Especially, since I live in L.A."

So, it's established, you wouldn't want this or any executive to use anything other than "every LEGAL means" to prevent the nuclear annihilation of New York, Chicago and L.A.

We differ. When it comes to the nuclear annihilation of major American or Western cities I would unquestionably give this or any executive more leeway. And no, don't presume anything more than what I said, it's not a black-and-white issue and I'm not indicating any type of carte blanche in general terms. But what this does indicate is that you view this in an extraordinarily straight-jacketed manner, certainly so from my pov, while in acknowledging the various and sundry existential aspects of the current situation I'm not that rigid. The law exists, or subsists, upon a real-world moral/ethical substrate, broadly conceived.
1.8.2006 11:22pm
Noah Klein (mail):
Michael,

Our society is built on the idea of the LAW being the supreme in our society. All our leaders are sworn to uphold that law. This was a first in the history of the world. Previously any non-royal bureacrat or legislator pledged to the crown. We in this country thought that no man can be above law. When you set a precedent that a person is above the law then can you ever restrain that person again? I am extending your argument obviously to its extreme, but that is the fulfillment of your position. It was the partisans of Caesar that made the same arguments as you: that to defend Rome, Caesar must act outside of the law of Rome. We know how that ended.

This would not be the first time that a president has used extra-legal power. To name a few: Lincoln suspending habeas corpus, Presidents Polk and McKinley fomenting war outside the U.S., President Jackson: if you want it you enforce, FDR court-packing and Japanese internment, Truman and Youngstown, FDR to Nixon violating privacy and surveiling for political purposes, Reagan Iran-Contra, Clinton and Monica and final Bush here and in a few other instances.

In most of those cases, the president has been rebuked and stopped the extra-legal action or got authority for it. Some cases people lost their jobs and went to jail. Others the president was backed by either the courts or Congress to be later rebuked by historians and political philosophers. Yet always, always the President acted in what appeared to be the color of the law.

You are advocating for that the president is not bound by the law. You are arguing for Hobbes' Leviathan. I am not trying to put words in your mouth.

I said: I "wouldn't want this or any executive to use anything other than "every LEGAL means.

You said: "We differ. I would unqestionably give this or any executive more leeway."

Hobbes said: "A COMMONWEALTH is said to be instituted when a multitude of men do agree, and covenant, every one with every one, that to whatsoever man, or assembly of men, shall be given by the major part the right to present the person of them all, that is to say, to be their representative; every one, as well he that voted for it as he that voted against it, shall authorize all the actions and judgements of that man, or assembly of men, in the same manner as if they were his own, to the end to live peaceably amongst themselves, and be protected against other men."

How is your position and Hobbes' different? I am not even castigating you or insulting you. The position you argue for has been a position that has been supported throughout history. You argue that we must vest in the president extra-legal authority. So does Hobbes. You argue that the judgement of the president is above the law. He argues that the judgement of the king is above the law.

Now I am stupid and nor are you. I know you are not advocating monarchy nor that the president is completely checkless. But you do say that in the area of national security he is. Where is check on him there? Does any other branch of government or any other type of representative republic have such an ability to ignore the law? Can the legislature do something without being checked by the judiciary or executive? Can the judiciary do something without a check from the legislature or executive? Should these other branches have checkless powers? I hope you see where I am going here.

My main question is if we give the president this leeway you ask for how do we possibly rein him back in?

Noah
1.9.2006 1:55am
Michael B (mail):
Noah, with respect, you're misrepresenting my position. Indeed, I still have not taken a final position. It was simply in regards to a scenario involving the nuclear annihilation of N.Y., Chicago (which would include the Cubs!) and L.A. that I indicated a position. I even explicitly said: "... no, don't presume anything more than what I said, it's not a black-and-white issue and I'm not indicating any type of carte blanche in general terms." How many times, before someone believes me, do I have to say my approach and concern is with the totality of issues, with "... the specific and detailed sets of facts (which we're still learning), the Constitutional and statutory interests, historical developments (e.g., legal, technology) and the full set of existential evaluations, threats, likely and foreseeable developments, etc."

I'd also note you're essentially invoking two categories of concern, 1) a "slippery slope" argument and 2) essentially the notion that the "LAW" is some type of monolithic and imperturbable edifice.

As regards (1), life itself is a slippery slope and the law is one of the societal instruments we use to help navigate life's slippery slopes, virtually in perpetuity. So the slippery slope argument per se is little or nothing more than a tautology, certainly so in terms of a general conception.

As regards (2), I'll simple repeat my closing sentence from the prior post: "The law exists, or subsists, upon a real-world moral/ethical substrate, broadly conceived." I certainly and very much do believe in the rule of law as paramount, but beyond social/political themes, you invoke perplexing philosophical issues with the even stronger statement that "[our] society is built on the idea of the LAW being the supreme in our society." That formulation, it seems to me, takes another step or two beyond an acknowledgement of the importance of the rule of law.

Perhaps that's why you haven't recanted the idea that in thwarting a plot involving the nuclear annihilation of N.Y., Chicago and L.A. you wouldn't want an executive to do anything outside of the bounds of the "LAW".
1.9.2006 6:14pm
Noah Klein (mail):
Michael,

Once again, you failed to answer a direct question put you. I will ask it again. If you don't answer this simple question, then why should I continue to debate you?

My main question is if we give the president this leeway you ask for how do we possibly rein him back in?

Secondly, I didn't say things that you didn't say. I compared your argument to the argument of a well-respected philosopher who made the same points as you. I noticed that you didn't dispute that is arguments were similar to yours. Nor did you demonstrate any difference between his argument and yours.

You did misstate my position. I never said the law cannot be changed. I said that everybody, including the president must act within the law. You'll notice that he does say he is acting within the law. I disagree and feel that his explanation has no merit, but he does say he's acting within the law.

You said it is necessary for people to give the executive leeway to use extra-legal authority. You also say that my argument against this is employing the "slippery slope." You're right. I am using the "slippery slope" argument, because the historical examples of republics sliding into dictatorships have only needed the executive to say he needs to use extra-legal powers and boom there is a dictatorship. This happened in Rome, France, Germany. How many historical examples of a person thinking they are above the law do you need before you except that everybody needs to follow the law in society that claims to be governed by the rule of law?

Noah
1.9.2006 9:18pm
Michael B (mail):
Any reference to "leeway" at this time is premature, this has not been decided by SCOTUS or any court or authority that I'm aware. It's being discussed and debated and to this point that's it. Also, one of the fundamental reasons I keep trying to focus on distinguishing and clarifying 1) known facts, 2) the administration's statements and 3) speculation and allegations, is because those factors very much matter. In the perhaps 15+ threads at VC which focus on this NSA topic I've commented in only three or four; the only thing I positively did state was that if this NSA program is being used for domestic political/partisan purposes (a la Watergate) then at that point I and others would leave this President in droves.

Too, you don't seem to be comprehending my position (which among other things remains highly tentative). Too, I didn't say that you don't think the law can be changed. My "LAW" as imperturbable and monolithic edifice comment was not intended to suggest the notion the law cannot be changed (that would be an odd statement indeed and I would have used a word like "immutable" to convey that type of meaning). Instead it was intended to correlate to something like your statement, which you have not recanted, that even in order to save entire cities from nuclear annihilation you wouldn't want an executive to act in an extra-legal manner.

Re, Hobbes, I disagree I'm formulating the Hobbesian principle you seem to be imputing to me: presumably something to do with arbitrary power or a slippery slope which might lead to that, etc. I do agree with Hobbes (and I'm no philosopher, btw, at least not to any appreciable degree) that the law needs to be backed up by the authority of the state, but that doesn't seem to be what you're emphasizing.

But again, I think we're talking past each other. You don't seem to understand what is being implied, inherently, with the two - (1) and (2) in the prior post - basic principles I did forward.
1.9.2006 11:31pm
Noah Klein (mail):
Michael,


I understand what your saying. Your saying that to save millions the president needs to go beyond the law sometimes. I know you are not giving the executive dictatorial powers. I know that if the president used this power for anything other than national security you would be the first to decry it.

I am saying that the historical evidence demonstrates that once civil society gives the state this authority there is usually one natural result. Do you deny this? I understand the concern that drives your position. The destruction of a city because of the privacy rights of some terrorists seems like a extreme price. Especially when the law that was supposedly protecting the rights of Americans was a bad law. But do you at least understand where I'm comming from. Do you understand that once we place the opinion of one person above the opinion majority's representatives then we eliminate the idea that everyone must live under the law? If you can't see where I am coming from, then I really don't see any point to further discussion. But if you understand my concerns and I understand your concerns then maybe we can each move to a more moderate position.

Noah
1.10.2006 3:31am
Michael B (mail):
"But if you understand my concerns and I understand your concerns then maybe we can each move to a more moderate position."

If you moved from your position that you wouldn't use any extra-legal means even to save N.Y., Chicago and L.A. from nuclear annihilation that would certainly be a move from a radical to a less radical, perhaps a moderate, position. By contrast I haven't even taken a position, excepting to indicate, if not quite overtly, that as long this program is used to target al Qaeda-like jihadists and not used for internal, domestic uses, then I very likely would not have an issue with it. Additionally keeping in mind my prior opening sentence: "Any reference to "leeway" at this time is premature, this has not been decided by SCOTUS or any court or authority that I'm aware."
1.17.2006 1:21pm