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Congressional Research Service Report on NSA Surveillance:
The Congressional Research Service has published a report analyzing the DOJ letter sent to the Intelligence Committee on the NSA surveillance program. The CRS report is quite narrow. To condense its 44 pages into a sentence, it says that if you accept that the NSA program violated FISA, then the claims in DOJ's letter as to why the AUMF or Article II trump FISA are relatively weak. I agree; the CRS analysis is pretty similar to my initial post on the NSA program. The CRS report is appropriately cautious, too. It acknowledges that we don't have enough facts yet to analyze the legality of the program. I hope to post more on that, and some of my further ruminations on the NSA program, at some point over the next few days.
George Gregg (mail):
Given the CRS's history of nonpartisan, high quality work, it'll be interesting to see how members of Congress respond. It's not simply possible to dismiss concerns on legal grounds as being partisan attacks.

Of course, we're still waiting for facts. But the legal issues at least now have an advocate on record stating a position that Congress cannot so easily ignore.
1.7.2006 6:09am
Substance, Purport, or Meaning:
Unfortunately, one fatal omission infects the CRS analysis. In a discussion woefully lacking in facts, at no point do the authors grapple with the undisputed fact that George Bush is the most brilliant man ever to be in Harriet Miers' kitchen.
1.7.2006 6:42am
George Gregg (mail):
Hmm...I wonder if the "Harriet Miers Appeal to Intelligence" will ever become as popular as the "Chewbacca Defense".
1.7.2006 8:35am
Medis:
Not surprisingly, the memo was particularly helpful on statutory history. Probably the most important such discussion involved the meaning of Section 1809 and how it works in conjunction with 18 USC 2511(2)(f) (part of Title III), since that intersection is crucial to the Administration's statutory argument. That portion of the memo also contains two of my favorite passages in the memo (two of the many passages which evidence some sense of humor, at least in the legal sense). The first is in response to the Administration's proposed reading of 1809 and 2511:

"This reading [the Administration's] would seem to make the exclusivity provision meaningless, a construction not ordinarily favored by courts. It may be questioned whether Congress actually intended for the exception to the criminal prohibition in FISA to negate the more specific requirements in Title III and its exclusivity provision."

They then move into a discussion of the Moschella Letter's proposition that the Administration's interpretation of FISA and the 2001 AUMF should be favored in the name of avoiding a constitutional problem. They don't seem favorably impressed by that argument, and again evidence a bit of humor:

"It is unclear how FISA and the AUMF are seen to collide. Principles of statutory construction generally provide guidance for interpreting Congress's intent with respect to a statute where the text is ambiguous or a plain reading leads to anomalous results; and where possible, a statute that might be read in such a way as to violate the Constitution is to be construed to avoid the violation. However, such principles are only to be applied where there is a genuine ambiguity or conflict between two statutes, and where there is some possible reading that might avoid a conflict. While the Court has been known to read into a statute language that does not appear, it would be unusual for the Court to read express statutory language out of a statute, except by declaring at least that portion of the statute to be unconstitutional. It would not ordinarily be presumed that Congress meant the opposite of what it said, merely because its words are constitutionally problematic."

Ouch.

Accordingly, one general theme of the memo was that the Administration cannot use its Article II arguments to force through its interpretation of the statutes so that the merits of those constitutional arguments need not be tested. As the memo states in its Conclusion:

"To the extent that the Administration seems to base its interpretation of the AUMF and FISA on the assumption that a reading contrary to the one they rely upon would be an unconstitutional violation of separation-of-powers principles, it appears to regard the matter as deserving the highest level of deference under Youngstown's first category simply by virtue of the assumption that it would survive scrutiny under the third category. To conclude that Congress's enactments are unconstitutional and therefore could not reflect Congress's intent seems to beg the question."

Again, ouch.

Incidentally, it was also interesting, but unsurprising, that they included an extensive discussion of In re Sealed Case, including the now infamous dicta.
1.7.2006 10:02am
Just an Observer:
I believe Prof. Kerr is right to note that the CRS report is relatively narrow: It analyzes the law, not the facts, based on what has been said officially about the NSA program.

The CRS memo thus confronts and rebuts the legal arguments advanced by the administration, which rest on that tiny factual base.

Neither the administraton nor CRS analyis grapple with the larger but still sketchy set of facts reported unofficially in the press, involving the technical details of the NSA surveillance.

Nevertheless, the CRS report is immensely valuable at this point in the public discourse because it dispels some myths and disinformation about the law that have been repeated rather loosely by political advocates.
1.7.2006 10:06am
Medis:
JaO,

It will be interesting to see how (if at all) various members of Congress react to this memo. In particular, I've already seen a commentator here speculate about whether the authors of the memo are actually nonpartisan, and I wonder if anyone in Congress will do the same.
1.7.2006 11:29am
Medis:
Incidentally, I realized that I just plagarized George Gregg. Sorry about that.
1.7.2006 11:45am
Defending the Indefensible:
I was impressed how closely Prof. Kerr's own earlier analysis matched that of CRS. They seemed to agree that the espionage may not implicate a Fourth amendment violation, but probably does violate FISA.
1.7.2006 11:46am
Defending the Indefensible:
Medis,

Keep in mind that some of the commentators here who have been defending the administration have already resorted to, among other tactics, accusing the administration itself of lying about its legal justifications, and misquoting legal authorities in opposition to their actual language.

While we cannot just ignore them without letting them deceive other readers, I think it is probably better at this point to drill on their lack of credibility than get drawn into repetition after repetition of the same foundationless arguments.
1.7.2006 11:59am
Medis:
DtI,

Why not a division of labor? You handle credibility, and I'll handle endless repetition.

Although every once in a while, something new does come up in such discussions. And I also think some people are arguing in good faith, and I find those particular debates interesting even if they end up being a bit circular in the long run (indeed, I assume they feel the same way about me).
1.7.2006 12:14pm
Just an Observer:
Medis,

That same commentator who, without foundation, questioned the nonpartisanship of the CRS authors is a master of slinging mud and then ducking. Similarly, he has advanced unsupported innuendo against Judge Robertson. Notably, that same commentator has been redressed by his peers here -- unrepentantly -- for doctoring a quotation from a court opinion.

We can hope that arguments of such loose ethical character will not gain more traction here than they deserve. In the political world at large, standards are harder to enforce.
1.7.2006 12:23pm
trotsky (mail):
It wouldn't be surprising if the staff of the Congressional Research Service had a "partisanship" that favored the power of their employer, Congress, in a dispute with the executive.

I'm similarly struck when it is argued by Bush defenders that "Clinton and Carter did it too." Well, yes, all presidents assert great powers.

Is there an honest way to resolve such institutional disputes? Or is this what elections are for?
1.7.2006 12:42pm
Medis:
trotsky,

I think it is reasonable to suspect that some sort of pro-Congress bias, conscious or otherwise, might arise in the CRS. But I'm not sure that bias would arise within the context of the initial statutory question--namely, whether or not Congress actually intended to authorize such programs, despite the existing federal laws and the USA-PATRIOT Act, with the 2001 AUMF. In other words, a pro-Congress bias does not imply a preference for finding a conflict where one does not actually exist.

In any event, if a true conflict between Congress and the President exists, there are some constitutional mechanisms (besides elections) for dealing with such disputes. For example, starting with George Washington himself, the President has exercised his veto power over legislation he deems unconstitutional. Of course, in this case, it is too late for the President to exercise this power with respect to the existing statutes, but he could do so with respect to any further legislation. Naturally, the President's veto can be overridden, but at least the President can make it harder for Congress to pass laws he deems unconstitutional.

Conversely, if the President refuses to enforce a law which Congress believes is constitutional, they ultimately could impeach and remove the President. Obviously, that is a drastic remedy, but it is available--and might well be most effective in the form of a threat, at least when conjoined with extensive congressional oversight.
1.7.2006 1:06pm
John Lederer (mail):
"Conversely, if the President refuses to enforce a law which Congress believes is constitutional, they ultimately could impeach and remove the President. Obviously, that is a drastic remedy, but it is available--and might well be most effective in the form of a threat, at least when conjoined with extensive congressional oversight."

That would be the "Dick Cheney for President" option?
1.7.2006 1:10pm
Medis:
John L.,

That is one of the many reasons that I am personally hoping this does not end in impeachment and removal.
1.7.2006 1:19pm
Mary Katherine Day-Petrano (mail):
As usual, similar to the debacle of the Administration's Katrina response, the Administration uses a lot of methods to water down the problems it finds itself in, hoping the public's focus in the problem will go away, like this NSA domestic surveillance. What I want to know is more about General Hayden's comments that even private contractors had access to sign-off by NSA shift supervisors to invoke this surveillance and "use of force" system.

I am now wondering if the NSA surveillance on myself and my husband at the heart of Supreme Court Dockets No. 05-7287 and 05-7771, and The Vessel Mistress surveillance platform case being filed on petition to the Supreme Court, was triggered by my father who was one of the principal architects of IBM's participation in the NSA surveillance system and subsequent efforts by the Administration to protect him, by stymying my efforts in my Americans With Disabilities Act civil rights cases to hold him accountable for drugging me with Quaaludes and sexually abusing me when I was 14-17 years old followed by his domestic violance causing me traumatic brain injury when I confronted him about it -- all of which left me requiring reasonable accomodations for the disabilities he caused me. Clearly, my bar admission cases were affected by the NSA data information, given that the NCBE assists with background checks on bar applicants for the States of California and Florida by ultimately utilizing the NSA files.

I think if the significant injustice that has been done to me is the result of the Administration's protection of my father because he was involved in the NSA's program involving IBM, I have the right to know, to discovery, and to a remedy -- 42 U.S.C. Section 12203 provides a cause of action against "any person" who retaliates against someone who has filed an ADA suit, including a President or other federal officer or instrumentality. Nothing in the language of that statute limits the "any person" to a State actor.
1.7.2006 1:49pm
Just an Observer:
Impeachment seems so far-fetched politically. More likely is some compromise based on the face-saving proposition that this was just a good-faith difference of opinion among lawyers in the two branches.

One possible next step for Congress, beyond the upcoming hearings, might be the enactment of clarifying language that explicitly states existing law cannot be construed to authorize such surveillance activity. The upcoming renewal of the USA-PATRIOT Act would seem an ideal vehicle for such language.

The President then could back down. If he defied such an act, then we would have a bona fide constitutional crisis.

Alternately, Bush could propose clarifying language codifying his own position explicitly. I believe that would surely fail in Congress.
1.7.2006 1:58pm
Defending the Indefensible:
John Lederer wrote:
That would be the "Dick Cheney for President" option?
He did insulate himself pretty well, didn't he?

The line of succession goes Cheney, then Hastert, then Stevens (AK). Wow, what a choice!
1.7.2006 2:18pm
KMAJ (mail):
Medis,

I have often seen the 'veto' option sited as an argument for the defense of legislative branch power through FISA. Let me understand you correctly, you think in the political climate after 9/11, the executive branch should have exercised its veto option and struck down the whole Patriot Act because he did not agree with its effects on FISA ? Do you consider that a reasonable defense ? I think the more relevant line would be asking how many times has Bush filed suit against FISC ? Why was Sealed Case necessary if the FISC had been carrying out its post Patriot Act responsibilities correctly ?

I will not claim that the FISC is solely to blame, but I am also unwilling to lay the blame exclusively on the executive branch. I think this is an issue that SCOTUS has to address and until they do, we are tredding in murky water. I do think the quote cited by William &Mary Prof. Meese from Justice Joseph Story about the Commander-in-Chief power is salient and relevant to this issue:

"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."

Story's multi-volume "Commentaries on the Constitution of the United States" (1833), is still considered one of the most influential works on the Constitution and constitutional issues and intent.
1.7.2006 2:25pm
Defending the Indefensible:
JaO:

Irrespective of the political consequences to impeachment, failure of the Congress to assert the supremacy of law is worse. I think it is important to remember always that impeachment is not conviction, and should be considered more like a bill of particulars or indictment. Obviously this should not be done without proper investigation of the facts and law, akin to the role of a grand jury, but I think it is absolutely imperative that this investigatory role be undertaken without delay.
1.7.2006 2:28pm
Defending the Indefensible:
KMAJ,

Yes, I understand, you advocate dictatorship. I don't doubt you expect Bush would be a benevolent leader, quite unlike historical examples. If some testicles need to be crushed, then it is for the greater good. Can't make an omelette without breaking a few eggs.
1.7.2006 2:31pm
Medis:
KMAJ,

Yes, I think if the President believes a law is unconstitutional, and he does not intend to follow it, he should first try to veto it. Of course, this is all counterfactual--if Bush had actually argued to Congress that FISA as amended by the USA-PATRIOT Act was unconstitutional, then Congress may not have passed the USA-PATRIOT Act in its eventual form. So we don't know if Bush would have needed to veto it at all.

But he didn't do any of that.

Incidentally, if you take "direction of war" in that Story quote to include not just the power of military command, but also the power to make military law, then Story's view would be refuted by both the plain text of the Constitution and a large number of Supreme Court statements, including some in Hamdi. But I doubt that is actually what Justice Story meant.
1.7.2006 2:35pm
KMAJ (mail):
DtI,

There you go again, pejorative rhetoric in place of reasoned argument. It does not strengthen your argument to demonize and misstate positions. Were this a courtroom you would be chastised by the sitting judge. You seem to have a tendency to let your linguistic talent devolve into jejune, pusillanimous, partisan invective when someone refuses to agree with you.
1.7.2006 2:43pm
Defending the Indefensible:
KMAJ writes: "It does not strengthen your argument to demonize and misstate positions."

How ironic.

Quoting jukeboxgrad:

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.
1.7.2006 2:59pm
KMAJ (mail):
Medis,

While firmly believe in your right to such an opinion on vetoing the USA PATRIOT Act, I believe it is grounded in idealistic perception and not in pragmatic reality. If he had the power of the line item veto for legislation, I would find your argument very persuasive. Without that, your argument is akin to throwing out the baby with the bath water. To whit, the changes in FISA were certainly better than the pre-existing FISA rules, but to engage in an extended debate with Congress over that in the immediate wake of 9/11 would have a detriment to expediency.

As far as the Justice Story quote, the most relevant part:

"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."

It is something the Founders supported and recognized, ergo, to try to separate intelligence gathering, necessary to war tactics, decisions and strategy, into categories delegating entities power not constitutionally assigned, can very reasonably be argued as a detrimental constraint on, or usurpation of, executive authority to 'faithfully' carry out his duty to protect and defend that violates the spirit, if not the actual intent, of the Constitution.
1.7.2006 3:03pm
KMAJ (mail):
DtI,

Same old, same old, diversionary tactic. Instead of addressing the subject matter, you attack the poster.

I made a simple mistake of not providing a link of attribution in a post that was mostly made up of my opinion. To those who express such a level of offense, I apologize. If that is not enough, c'est la vie. I have never asserted that I am a lawyer, nor have I asserted to being a computer expert. I simply claim to be human with my own opinions based on my own assessments and application of logic and research of others with far more expertise than I have.
1.7.2006 3:15pm
Medis:
KMAJ,

Choices have consequences. If the President thought it was more important to get the USA-PATRIOT Act then to voice his constitutional objections to FISA, then he should have to live what that choice. In other words, you are basically giving him the power of a secret line-item veto, and that is not consistent with the Constitution.

As for Justice Story, notice the things not on his list: policy, rules and regulations, protecting the rights, preventing abuses of power, military law in general, and so on. In other words, his quote provides no support for the proposition that military command implies freedom from military law.

In general, in light of things like the actual Articles of War passed both before and immediately after the adoption of the Constitution, the Federalist Papers, contemporaneous treatises on military law and the Laws of Nations, and the plain text of the Constitution, it seems clear that if the President's Article II argument was evaluated on originalist and/or strict constructionist grounds, it would be DOA.

But for good or ill, the courts do not uniformly follow originalist and/or strict constructionist methods. One possibility is that the President could rely on stare decisis--of course, the CRS memo does a good job of summarizing why the pre-FISA caselaw does not actually support his position, and the post-FISA caselaw, with only the possible exception of the Sealed Case dicta, flatly contradicts his position.

But perhaps his last, best, hope would simply be that a court would think his view makes for better policy, and accept his view of the Constitution on that basis.

All of which makes for some interesting irony.
1.7.2006 3:26pm
Just an Observer:
KMAJ: "I made a simple mistake of not providing a link of attribution in a post that was mostly made up of my opinion. ..."

Actually, that does not begin to describe what you did. You edited a quotation from a court opinion, altering its meaning substantially, then published it with no indication that edits were made.

For details, interested readers are referred to postings

here,

here,

here,

here, and

here.

Your denial now only compounds the offense and further undercuts your credibility.
1.7.2006 3:32pm
KMAJ (mail):
DtI,

You assign yourself clairvoyant powers and mind reading ability, the quote from the court was cut and paste from the unattributed site. I contend that your attempts to make such assignations of fact undercuts your own credibility by the simple fact you continue this diversion from the subject matter and seek to make me the subject. I admit to my mistake, if that is not good enough for you, or anyone else, like I said, C'est la vie. I accept the criticism you link to as deserved, but none of it goes to any factual representation of motivation. I would daresay that any of my critics, if put under scrutiny, would find mistakes made in their past, as such, exaggerated expressions of moral turpitude are disingenuous and self-aggrandizing attempts to claim chimerical moral superiority to avoid having to address or divert from the subject at hand, the constitutional issue of the NSA program.

If you seek to continue repeating your demonization tactics of diversion and poltroonish invective, you will be ignored, as such tactics are eschewed by this site and I decline to further propigate it.
1.7.2006 4:25pm
Just an Observer:
KMAJ,

I believe it was me, not DtI, at whom your thesaurus dump was properly aimed.

This is the first time I have seen you admit at least a "mistake" in the previous thread, which I had read with disgust but did not actually participate in. A useful next step would be an expression of remorse embodying recognition of what your prior behavior actually encompassed.

I also have noted a propensity in your posts to insinuate -- with absolutely no foundation except your own speculation -- ethical lapses by public players in opposition to your favored position. In this class of comment I would place your baseless assertion that the authors of the CRS memo may be personally partisan, and that Judge Robertson may have violated his security oath.

When you bring such arguments to this blog, it has a certain smell. Since you are your own source for such allegations of misconduct in others, your own credibility is very much at issue. You cannot hide behind cries of "ad hominem." Do not be surprised to find your own transgressions examined by the rest of us, whom you are implicitly asking to trust your judgment of character.
1.7.2006 4:49pm
Apodaca:
KMAJ's last post could have been taken straight out of George Orwell's 1946 essay, "Politics and the English Language." Some pertinent excerpts:
Bad writers, and especially scientific, political, and sociological writers, are nearly always haunted by the notion that Latin or Greek words are grander than Saxon ones, and unnecessary words like expedite, ameliorate, predict, extraneous, deracinated, clandestine, subaqueous, and hundreds of others constantly gain ground from their Anglo-Saxon numbers. The jargon peculiar to Marxist writing (hyena, hangman, cannibal, petty bourgeois, these gentry, lackey, flunkey, mad dog, White Guard, etc.) consists largely of words translated from Russian, German, or French; but the normal way of coining a new word is to use Latin or Greek root with the appropriate affix and, where necessary, the size formation. It is often easier to make up words of this kind (deregionalize, impermissible, extramarital, non-fragmentary and so forth) than to think up the English words that will cover one's meaning. The result, in general, is an increase in slovenliness and vagueness.
[...]
You can shirk [your duty as a writer] by simply throwing your mind open and letting the ready-made phrases come crowding in. The will construct your sentences for you -- even think your thoughts for you, to a certain extent -- and at need they will perform the important service of partially concealing your meaning even from yourself. It is at this point that the special connection between politics and the debasement of language becomes clear.
[...]
Consider for instance some comfortable English professor defending Russian totalitarianism. He cannot say outright, "I believe in killing off your opponents when you can get good results by doing so." Probably, therefore, he will say something like this:
While freely conceding that the Soviet regime exhibits certain features which the humanitarian may be inclined to deplore, we must, I think, agree that a certain curtailment of the right to political opposition is an unavoidable concomitant of transitional periods, and that the rigors which the Russian people have been called upon to undergo have been amply justified in the sphere of concrete achievement.
The inflated style itself is a kind of euphemism. A mass of Latin words falls upon the facts like soft snow, blurring the outline and covering up all the details. The great enemy of clear language is insincerity. When there is a gap between one's real and one's declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink. In our age there is no such thing as "keeping out of politics." All issues are political issues, and politics itself is a mass of lies, evasions, folly, hatred, and schizophrenia. When the general atmosphere is bad, language must suffer.
[...]
If you simplify your English, you are freed from the worst follies of orthodoxy. You cannot speak any of the necessary dialects, and when you make a stupid remark its stupidity will be obvious, even to yourself. Political language -- and with variations this is true of all political parties, from Conservatives to Anarchists -- is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.
1.7.2006 5:01pm
Defending the Indefensible:
Apodaca:

Did you mean to link this post to the lovely Orwell excerpt?

KMAJ wrote:

As far as the Justice Story quote, the most relevant part:

"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."

It is something the Founders supported and recognized, ergo, to try to separate intelligence gathering, necessary to war tactics, decisions and strategy, into categories delegating entities power not constitutionally assigned, can very reasonably be argued as a detrimental constraint on, or usurpation of, executive authority to 'faithfully' carry out his duty to protect and defend that violates the spirit, if not the actual intent, of the Constitution.
Simplified English translation: I advocate dictatorship.
1.7.2006 5:21pm
jukeboxgrad (mail):
KMAJ, I greatly enjoyed this post of yours. I realize you wrote it using a pseudonym, but you should realize your admirers are not so easily misled.

"There you go again, pejorative rhetoric in place of reasoned argument"

Uh, in the civilized world, "reasoned argument" is not done via the kind of flagrantly dishonest quoting you've done, as explained here. Pointing out your repugnant behavior is not invective. It's just telling the truth.

Given your track record of dishonest quoting, only a fool (and I realize many of your ideological pals fall into that exact category) would henceforth take a single word you post at face value.

"I made a simple mistake of not providing a link of attribution in a post that was mostly made up of my opinion"

You're not just a liar, you're a compound liar, and you rely on the fact that many people are foolish enough to not investigate what you say.

Your main offense was not omitting a URL. I noted that only in passing. Your main offense was deliberately removing ellipses that were proper and necessary. In other words, even Hinderaker's dishonest quoting was not quite dishonest enough for you.

More on Hinderaker's latest dishonesty here. You two are birds of a feather. It's no small thing that you took it upon yourself to attempt to outdo him.

"the quote from the court was cut and paste from the unattributed site"

You did not merely cut and paste from Hinderaker. You copied his work, but also removed the ellipses. Even HInderaker lacked the daring to mangle Jackson's words quite so blatantly. It took you to do that.

Then again, you might be using a spyware-infected version of Windows which oddly removes random characters when cutting and pasting. Outside of such an explanation, the ellipses disappeared because you disappeared them.

"I admit to my mistake"

Actually, you suggested your only mistake was failing to provide "a link of attribution." You still have not admitted to what is obvious to anyone who cares to take a look: you deliberately excised ellipses, even though they were proper and necessary.

"none of it goes to any factual representation of motivation"

When you explain why your computer spontaneously makes random characters disappear, then we should reconsider our assumptions about "motivation."

Then again, maybe you can get your mentor to get his mentor to get his mentor (repeat as needed) to talk to his pals at NSA and have them hack VC to make your shameful history disappear. Your foul posts can end up in the same big bitbucket in the sky where you dispatched those ellipses.

"you will be ignored"

Feel free to ignore whomever you like. It's still a free country, sort of, despite your best efforts. But your bad behavior will not be ignored, or forgotten, and it will not go unmentioned.

Here's a suggestion: try a new handle. Your old one is shot.

Apodaca, thanks for the brilliant Orwell (which I had never seen) on the subject of "pure wind," which is a good description of our slippery pal.
1.7.2006 5:26pm
KMAJ (mail):
JaO,

Mea culpa and apologies to DtI.

As far as thesaurus laden, I often run into that inaccurate accusation, command of the english language is often derided with such baseless charges to demean. I make no apologies for my ability to use and apply the english language without a thesaurus.

I regret not having used proper attribution in my mistake, but there was no evil intent in the mistake. If that is not good enough for you, then I will simply shrug my shoulders.

Regarding your observance of propensity, I clearly express them as opinion of plausibility and not as fact. I believe Medis, I could be wrong, addressed this in a discussion we had in another thread. I can only control what I opine, not how others perceive or interpret. Should you not also then criticize those who demonize Bush on similar insinuations ? Or those who invoke Nazi comparisons ? It would seem that would only be fair as opposed to selective displays of indignation. Don't get me wrong, you have the right to be selective, it is human nature to only object when such insinuations are contrary to supporting one's position. I tend to approach it from a free speech perspective of 'sauce for the goose' and I do not approach bias as coming from a perspective of evil intent, but from human nature that we are all subject to personal bias based on personal experience and beliefs.

Have you seen me attack another poster for thier opinions on the subject matter ? I believe I have shown due deference and respect for other's rights to have their opinions that may be different from mine. Whether someone wishes to engage in ad hominem or non sequiturs is outside my control.
1.7.2006 5:28pm
jukeboxgrad (mail):
KMAJ: "I regret not having used proper attribution in my mistake"

Nice job trying to get a casual observer (which probably describes most observers) to believe that all this fuss is over a mere lack of using "proper attribution."

"Whether someone wishes to engage in ad hominem or non sequiturs is outside my control."

Your bad behavior is on the record, even as you try to deny it. That's something else that's outside your control.
1.7.2006 5:42pm
Debater:
I was wondering if anyone knew where the surveillance was being intercepted. Was the surveillance being intercepted overseas or in the United States? If it is being intercepted overseas, wouldn't the definition of electronic surveillance not apply if they shouldn't have a reasonable expectation of privacy. The NY Times article wasn't clear to me as to where the information was being intercepted. Thanks.

A debater who is trying to write a brif on this for both sides.
1.7.2006 5:51pm
Just an Observer:
KMAJ: "Regarding your observance of propensity, I clearly express them as opinion of plausibility and not as fact."

Then, no doubt, you will forgive observers who find it plausible that your own ethical record is so shaky that your credibility is destroyed. If plausibility is the minimum standard, you are as open as your victims to whatever accusations can reasonably be imagined.

You profess to see nothing wrong with making unsubstantiated attacks on others. A little remorse here might help win the sympathy of the crowd.

I repeat, so long as you assert that it is okay to follow the MCCarthyite practice of slinging mud and then ducking, your own credibility and attitude toward ethics are very much on the table. You have no "ad hominem" defense.

I do find it interesting that you now say you only plagiarised the misleading quotation from someone else who did the misleading editing. At a minumum, you need to start reading more honest sources than the partisan screeds from which you apparently take your talking points.

It would have been more credible if you had made that admission at the time, when the victims of the intellectual fraud here were complaining to you. Yet you remained silent on that point, and in fact defended the practice of such redaction as common. And even today, you have not explained how the ellipses came to be missing. The other scoundrel apparently left them in.
1.7.2006 6:01pm
Just an Observer:
Debater,

You are invited to look not only at the original NYT story of 12/16, but also a major followup in the NTY on 12/24. (Sorry, I don't have a link that works at the moment.)

Paraphrasing, the 12/24 story said that one thing new about taps in the post-9/11 period was that the NSA began tapping into telecom lines at or near U.S.-based communications switches, apparently with the cooperation of unnamed telecom companies.

Also see the recently published book by James Risen, "State of War : The Secret History of the C.I.A. and the Bush Administration", and the recent threads here that discuss it.

Even with these disclosures, there is still much we don't know about the technical details and how they interface the technical details of the law. Poster John Lederer on this site has done some interesting research in that area, which has been discussed in various threads here.

Hope this helps.
1.7.2006 6:26pm
Andrew Hyman (mail) (www):
I skimmed through the CRS report, and it does fill in some blanks as far as legislative history is concerned. But it does not seem to be a comprehensive examination of the legal issues involved here. For example, there's no mention of the word "border" in the CRS report, and also no mention of the "War Powers Act."

It's important to keep in mind that this is a very complex issue, not just technically, but legally too. Just in terms of rules of construction, there are more pertinent canons than you can shake a stick at (implied repeals are disfavored, specific statutes are favored over general ones, statutes later in time are favored, a statute should not be construed to render any part surplusage, statutes are to be construed so as to avoid serious constitutional questions, et cetera). The CRS Report only scratched the surface of the legal issues.

I still disagree with Professor Kerr, who seems to believe that the AUMF's authorization of "all necessary and appropriate force" was not meant to impliedly supercede any prior statutory provisions. If that were true, then the last sentence of the AUMF (which sought to protect the War Powers Act) would be surplusage.

I came across a dissent by Justice Stevens that seems very relevant here. The case was RADZANOWER v. TOUCHE ROSS &CO., 426 U.S. 148 (1976).

"[W]ith equal logic we might describe either statute as creating an exception from the somewhat more general provisions of the other. The rule that the legislature presumably intended to give effect to the more specific statute could therefore be applied to support the petitioner, as well as the respondent bank, in this case. Similarly, without pausing to consider the reason why each statute was enacted, we might simply apply the rule that the more recent of two conflicting statutes shall prevail, rather than the rule that the special statute takes precedence over the general….Preoccupation with the ancient doctrine of implied repeal should not foreclose this simple construction of the plain language of the 1934 Act.

"The rule that repeals by implication are not favored, like all other canons of statutory construction, is merely one of the guidelines to observe in the search for a construction which will best reflect the real intent of the legislature…. Specifically, in this case…. the canon of construction strikes me as an unreliable guide for ascertaining the true intent of Congress.

"Congress may well have simply overlooked the special venue provision in the Civil War statute, particularly since Langdeau had not yet been decided. It may therefore be accurate to describe the omission of any reference to the earlier statute in the legislative history of the later one as inadvertent."

I would have liked the CRS Report to have told us more about the legislative history of the AUMF. Was there any reference to FISA in the legislative history of the AUMF? Did Congress realize that by safeguarding the War Powers Act, they were potentially broadening the meaning of the words "necessary and appropriate force"? Unfortunately, it does not seem that the CRS Report touched on those issues, although the CRS Report certainly provides some useful info.
1.7.2006 6:53pm
Just an Observer:
Andrew,

I think you are the only person on the planet who thinks the War Powers Act section of the AUMF is remotely relevant.

Unless the CRS mission was to respond to your blog comments, which are found deep inside discussions here and mentioned briefly on your own, there is no reason for them to address the issue.

Notably, the lawyers who laid out the administration legal case in the 12/22 letter to congressional leaders never mentioned the issue you raise, which you seem to think is central to Bush's position. If you want to fault someone for missing the War Powers, fault them.
1.7.2006 7:03pm
jukeboxgrad (mail):
debater,

"If it is being intercepted overseas, wouldn't the definition of electronic surveillance not apply if they shouldn't have a reasonable expectation of privacy"

I agree. If communication is "being intercepted overseas," and if you find a way to sweep aside REP, then as far as I can tell FISA is not being violated.

However, I haven't seen a cogent argument for why REP does not apply. Aside from that, it's important to notice that Gonzales has admitted that FISA is being violated.

I have a feeling we didn't bother exporting our point-of-acquisition (to achieve a purely legalistic payoff) because that only makes acquisition harder, and there would in any event be no legal payoff because in fact REP is operative.
1.7.2006 7:05pm
Andrew Hyman (mail) (www):
Just An Observer, I do fault the Administration. The Administration's statutory rationale is not persuasive. The CRS is probably correct to say that the Administration's reading "would seem to make the exclusivity provision meaningless, a construction not ordinarily favored by courts."

Just an Observer, you seem very quick to ridicule my view of this matter, but very slow to address the substance of it. Do you believe that the AUMF's authorization of "all necessary and appropriate force" was not meant to impliedly supercede any prior statutory provisions? If so, then the last sentence of the AUMF (which sought to protect the War Powers Act) would be surplusage, right?

It's not a complicated argument, and it has a lot more going for it than the Administartion's argument, which would seem to make the exclusivity provision meaningless.
1.7.2006 7:12pm
Just an Observer:
Andrew,

I apologize if I seemed to ridicule, but I believe I have addressed the substance of your argument before.

To recap: It seems clear to me that the entire section of the AUMF that is about the War Powers Resolution, and appears under that heading, is precisely intended to explain how the AUMF relates to the War Powers Resolution. The language says what it means and means nothing more. There simply is no apparent reason to wonder if its language implicates any other body of law.

And unless I remember wrong, your efforts to advance your theory gained no real traction with anyone else on this blog or on your own. So you do seem to be rather alone on this one so far.

I have explored intellectually here my own pet theory about how the language of FISA might contain technical loopholes that would excuse the administration's actions, and I found no explicit mention of that theory in the CRS document, either. But that really did not surprise me -- and it would not hurt my feelings if you pointed that out -- since the CRS mission seemed primarily to respond to the administration's case as articulated in the letter to Congress, and the administration case does not raise the particular issue I am interested in.

As Prof. Kerr stated in his top-level post, that focus of the CRS document can be described as narrow.
1.7.2006 7:37pm
Andrew Hyman (mail) (www):
Just an Observer:

I am not criticizing the CRS Report. I was noting its narrow focus, just as you have done, and just as Professor Kerr has done.

As for your claim that you have addressed the substance of the surplusage argument, I respectfully don't think you really have. The CRS Report mentions that the AUMF "does not expressly specify what it authorizes as 'necessary and appropriate.'" Is it your view that this language in the AUMF does not embrace any action inconsistent with statutes that were already in place when the AUMF was enacted? Yes, no, maybe?

If your answer is "yes" then isn't the last sentence of the AUMF redundant. Just an Observer:

I am not criticizing the CRS Report. I was noting its narrow focus, just as you have done, and just as Professor Kerr has done.

As for your claim that you have addressed the substance of the surplusage argument, I respectfully don't think you really have. The CRS Report mentions that the AUMF "does not expressly specify what it authorizes as 'necessary and appropriate.'" Is it your view that this language in the AUMF does not embrace any action inconsistent with statutes that were already in place when the AUMF was enacted? Yes, no, maybe?

If your answer is "yes" then isn't the last sentence of the AUMF redundant? The last sentence is:

"Nothing in this resolution supercedes any requirement of the War Powers Resolution."

How could anything in the AUMF resolution possibly supercede requirements of the War Powers Act, if the AUMF does not embrace action inconsistent with ANY pre-existing statutes?
1.7.2006 7:54pm
Andrew Hyman (mail) (www):
meant to say this....

Just an Observer:

I am not criticizing the CRS Report. I was noting its narrow focus, just as you have done, and just as Professor Kerr has done.

As for your claim that you have addressed the substance of the surplusage argument, I respectfully don't think you really have. The CRS Report mentions that the AUMF "does not expressly specify what it authorizes as 'necessary and appropriate.'" Is it your view that this language in the AUMF does not embrace any action inconsistent with statutes that were already in place when the AUMF was enacted? Yes, no, maybe?

If your answer is "yes" then isn't the last sentence of the AUMF redundant? The last sentence is:

"Nothing in this resolution supercedes any requirement of the War Powers Resolution."

How could anything in the AUMF resolution possibly supercede requirements of the War Powers Act, if the AUMF does not embrace action inconsistent with ANY pre-existing statutes?
1.7.2006 7:57pm
Just an Observer:
Andrew,

As we have discussed (and agreed) before, the prior sentence in the AUMF makes clear that this act is intended to be a species of the class of authorizations contemplated by the War Powers Resolution. The second sentence means it is nothing more than that, so far as the War Powers Resolution is concerned, but leaves the general resolution unmodified.

If you want to call that redundant, perhaps it is. If there was a belt-and-suspenders redundancy, it was perhaps because some drafter raised the question that someone might try to construe the AUMF otherwise, so they wrote in that sentence -- all under the heading of the War Powers Resolution.

If anything, it would seem that the drafters anticipated no possible misreading that any other body of law might be construed to be affected or implicitly repealed, so they found no reason to mention any other body of law. There was no section labeled "Effect on other legislation," only the War Powers section, which stands on its own.

Besides, as far as FISA was concerned, there already was a section, 50 USC 1811, "Authorization during time of war," explicitly addressing the contingency of what a state of war would do to the operation of FISA.

The purpose of that section was to give Congress and the President time to make any changes deemed necessary.

That section, as you know, is keyed to a formal "declaration of war," which the AUMF does not call itself. Some say AUMF might be construed that way, others do not. At best, if so construed, the government would have had a 15-day period to conduct warrantless surveillance. If not so construed, there was no such grace period.

There is no evidence I have seen that makes the AUMF something more expansive than a declaration of war, and I have seen no one but you argue that it is. When I asked you if you thought it was more expansive, after comparing it to the language of the WWII declarations, you responded that it might be. But the only reason you offered was your War-Powers-surplussage theory, on which your entire theory of FISA seems to hinge.

So we seem to be back at the start of the circle.
1.7.2006 8:27pm
Andrew Hyman (mail) (www):
Just an Observer:

FYI, you seem to be referring to a discussion we had here regarding declarations of war. In World War II, if a letter addressed to Erwin Rommel or Tokyo Rose was obtained by US officials, those officials didn't have to get a search warrant to open the envelope. If they intercepted a transmission to a mole in the U.S., they didn't have to turn off their radios until they got a search warrant. I'm saying is that the same kind of thing holds true today.

You say that --- in the wake of 911 --- the authors of the AUMF apparently did not think that any "other body of law might be construed to be affected or implicitly repealed." Therefore, you acknowledge (as you must), that the last sentence of the AUMF is "redundant, perhaps."

There are several big problems with construing the AUMF so that the last sentence is redundant. First, of course, it's a well known rule of construction that statutory provisions shouldn't be interpreted as surplasage. Second, the AUMF is a very brief and very important enactment, and therefore we shouldn't lightly assume that it was written sloppily. Third, construing the last sentence of the AUMF as redundant would make it necessary to address a very serious constituional issue that could otherwise be avoided: does the President's inherent surveillance power trump the power of Congress. Fourth, statutes governing the conduct of war should (if possible) not be construed so as to drastically diminish powers that presidents have traditionally exercised in wartime, especially given that 911 involved enemy infiltration into the U.S.

I agree with you that the NSA program raises serious issue of privacy, big brother, and all the rest. I hope that Congress will look into it, and that the program will be improved, to the extent that it can be improved. But at the same time, I do think it's possible to run international communication through a filter that detects key phrases or other key indicators, so as to trigger immediate human surveillance. I think that the threshold should be lower than probable cause for human intervention, and "reasonable cause" has traditionally been accepted for border searches.

We need to figure out what to do going forward.
1.7.2006 9:05pm
jukeboxgrad (mail):
Andrew,

You note that AUMF says this: "Nothing in this resolution supercedes any requirement of the War Powers Resolution."

You seem to be interpreting this as follows: "Nothing in this resolution supercedes any requirement of the War Powers Resolution. However, since we are not explicitly mentioning, in a similar manner, myriad other statutes that exist, you should assume that AUMF is a blank check for King George to burn any and all statutes as he sees fit, including statutes that explicitly constrain executive behavior in the conduct of war (as long as he can concoct some kind of cockamamie national security justification, that is subject to review only by himself and his hired hands). Just not the War Powers Resolution."
1.7.2006 9:45pm
Just an Observer:
Andrew: "FYI, you seem to be referring to a discussion we had here regarding declarations of war. In World War II, if a letter addressed to Erwin Rommel or Tokyo Rose was obtained by US officials, those officials didn't have to get a search warrant to open the envelope. If they intercepted a transmission to a mole in the U.S., they didn't have to turn off their radios until they got a search warrant. I'm saying is that the same kind of thing holds true today."

Actually, I was referring to a more recent exchange we had on this topic, on 12/30. I think these are the mostly the right links. If not, you can scroll up or down chronologically:

Post 1

Post 2

Post 3

Post 4

Post 5

In the hypothetical case we were discussing, in which FISA had been in place before Pearl Harbor, the legal landscape would have been quite different. Unlike the actual historical case in which Congress deferred to the executive, in the hypothetical the contours of executive authority would have been different, because Congress would have legislated on the issue.

You argue today that it would not have been good policy to restrict the President. But it would have been the law, unless Congress and the President had amended it.

The point of the hypothetical, obviously, was to test what you thought the declaration of war did to the situation. Notably, you did not assert that Pearl Harbor and the subsequent declaration would have automatically repealed FISA. Remember, Section 1811 was hypothetically in place, and it explicitly referenced a declaration of war.

However, you assert that the 2001 AUMF did somehow effect an implied repeal of FISA. And all you have to hang your hat on is your War-Powers-surplussage theory.

I think the plain language of 50 USC 1811, which requires no such mental gymnastics to apply to a situation of FISA in wartime, is much more on-point.

You see, we have discussed the merits of this!
1.7.2006 9:53pm
Andrew Hyman (mail) (www):
jukeboxgrad:

Actually, the interpretation is as follows: "Nothing in this resolution supercedes any requirement of the War Powers Resolution, and we're not just saying that for the heck of it, but rather we're saying it because we mean for the President to use all necessary and appropriate force against the enemy notwithstanding other legal requirements. Of course, what is necessary and appropriate is subject to judicial determination, and is to be determined in view of what other presidents have traditionally been able to do."
1.7.2006 9:55pm
Defending the Indefensible:
Andrew:

Your hypothetical language says, "Of course, what is necessary and appropriate is subject to judicial determination..." let's stop right there.

Assuming arguendo that your language reflects Congressional intent, the President bypassed precisely such judicial determination.
1.7.2006 10:07pm
Defending the Indefensible:
Jukeboxgrad,

Thank you for the link to this blog entry. I was laughing but wasn't quite sure if I should be crying.
1.7.2006 10:28pm
Defending the Indefensible:
Of course, this suggests crying would perhaps have been the more correct response.
1.7.2006 10:32pm
Andrew Hyman (mail) (www):
Just an Observer:

Thanks for the links. In response to your hypothetical, I said it was "ambiguous" whether the 1941 Declaration of War would have superceded FISA, and I also said that the superceding effect of the AUMF is much stronger because the AUMF explicitly exempts the War Powers Resolution from being superceded (which wouldn't make sense unless SOMETHING was indeed superceded).

Anyway, you assert that the last sentence of the AUMF is "redundant, perhaps." But you say that this is not much for me to hang my hat on. Actually, however, there could scarcely be a more important rule of construction than this. Courts have been hanging their hats on it for centuries.

For example, John Marshall hung his hat on the surplusage argument in MARBURY v. MADISON, 5 U.S. 137 (1803): "The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction." And again in COHENS v. COM. OF VIRGINIA, 19 U.S. 264 (1821): "That would be, as was said by this Court in the case of Marbury v. Madison, to render the distributive clause 'mere SURPLUSAGE,' to make it 'form without substance.'" And again, in AMERICAN INS. CO. v. 356 BALES OF COTTON, 26 U.S. 511 (1828): "what could be more absurd than to decide, that the same force is to be given to those words as if they were not there." And again, in FOSTER v. NEILSON, 27 U.S. 253 (1829): "the insertion of these words materially affects the construction of the article. They cannot be rejected as surplusage."

And that was just Chief Justice Marshall!
1.7.2006 10:35pm
Andrew Hyman (mail) (www):
Defending the Indefensible:

The judiciary often determines the reasonableness of a search, even if everyone acknowledges that there is no warrant requirement. But you're correct that getting such matters into a courtroom can be especially difficult if the search is secret. How can judges evaluate the legality of any secret government activity? The usual answer is that some government official has to balk.

In the case of the NSA program, Bush gave lots of people an opportunity to balk. Besides many officials in the Justice Department and the Defense Department, there were eight ocngressional leaders, plus the lead judge of FISA, and any one of them could have balked. Looks like one of them finally did. So, now it looks like we'll get a court case and a judicial determination.
1.7.2006 10:47pm
Defending the Indefensible:
Andrew,

I see. So you think Congressional intent was that the President should evade judicial determination even where it had made statutes requiring judicial determinations, and if and when someone leaked (thus risking prosecution for violating secrecy), there might somehow arise a justiciable case or controversy (arising how, when the subjects are secret?) by which there could be a judicial determination of whether judicial determinations could legally be bypassed according to your strange interpretation.

Do I have that right?
1.7.2006 11:02pm
Just an Observer:
Andrew,

I have been trying to research the AUMF legislative history for you. It was sparse, because there were no committee reports, no differing House/Senate versions and no conference report.

Some clear notion of congressional concern in the particular area you are interested in can be seen in a floor statement after the fact, on June 10, 2002, by Sen. Feingold:

It is also important to recognize that S.J. Res . 23 states in no uncertain terms that the 1973 War Powers Resolution will continue to apply to our military operations against terrorism. This conforming language is identical to Public Law 102-1, which provided the authorization to use military force to oust Iraq from Kuwait in 1991. In all cases, the War Powers Resolution requires the President to consult with Congress on an ongoing basis on the status, scope, and duration of the hostilities. These consultations need not and should not provide Congress with what would be somehow a meddlesome and unacceptably dangerous role in determining tactical aspects of an active military campaign. But the required consultations must nonetheless assist Congress in its continuing responsibility to evaluate and make ongoing decisions about the broad objectives of an unfolding military operation.


Feingold went on to drive home the specific rationale for consultation established by the original War Powers Resolution.

The section on the War Powers Requirements thus was not novel to the the AUMF, but was modeled on the Gulf War authorization of 10 years before.

It is clear from Feingold's statement that members of Congress sought to reiterate clearly that they expected the consultation requirements of the War Powers Resolution to remain in effect, which the last sentence of the War Powers Requirements section did. The intent was to keep the executive explicitly on the hook for consultation.

This section, especially the last sentence which binds the executive, was hardly surplussage, but related directly to a specific intent of Congress. And it hardly seems related to electronic surveillance.

May we move on now?
1.7.2006 11:06pm
Mary Katherine Day-Petrano (mail):
"Jukeboxgrad,

Thank you for the link to this blog entry. I was laughing but wasn't quite sure if I should be crying."

Defending the Indefensible -- You like to mock and satirize what the President's domestic program is doing? What is so different from the bolg entry to which you refer, and what the President's NSA program is protecting of my father? Protecting architects of the system who happen to drug their chilren to molest and sexually abuse them, and then bash their heads against walls leaving them with traumatic brain injury? My case is real, unlike your mocked satire.

I would say that is a LOT worse than the shame of Paula Jones or Monica Lewinski. I was 14 years old when my father did this to me, and because he was such a mathematics, physics, and cryptography algorithm whiz, essential to national security, he s still walking free.

My life has been davastated, with no remedy.
1.7.2006 11:06pm
Just Wondering:
I'm afraid I'm just not getting Andrew's argument about surplusage, but I'm trying to follow the discussion, so if somebody wouldn't mind explaining it again, I'd be grateful. Just let me know where I'm wrong:
The War Powers Resolution has to do with the President's authority to involve the military forces overseas in war or any other level of hostilities, right?
The AUMF has to do with the President's authority to use military force against those he deems responsible for 9/11, etc., and is meant to be the congressional authority the War Powers Resolution calls for. Right?
The last sentence clarifies that all the other requirements of the War Powers Resolution (the periodic reports, etc.) are still necessary, because otherwise the President could read the AUMF as superceding the War Powers Resolution (for the purposes of the wot), which would mean he could dispense with the other various requirements of the WPR.
Why must this be read to imply that all necessary and appropriate force means notwithstanding any other law? How does this make the WPR language surplusage?
1.7.2006 11:16pm
Andrew Hyman (mail) (www):
Just an Observer:

The last sentence of the 2001 AUMF has a much longer history than you've indicated. For example, eight years before the 1991 Gulf War authorization, Congress provided as follows:

Nothing in this joint resolution modifies, limits, or supersedes any provision of the War Powers Resolution or the requirement of section 4(a) of the Lebanon Emergency Assistance Act of 1983 [unclassified], relating to congressional authorization for any substantial expansion in the number or role of United States Armed Forces in Lebanon.


Multinational Force in Lebanon Resolution. Act Oct. 12, 1983, P.L. 98-119, 97 Stat. 805, Sec. 7(b). Obviously, when Congress wanted to ensure that a prior statute would not be superceded, it knew how to do so. Why do you suppose it is that Congress in 1983 took such care to safeguard the Lebanon Emergency Assistance Act, but in 2001 decided not to safeguard your 50 USC 1811?

You assert that the last sentence of the 2001 AUMF is "redundant, perhaps." Would I be pressing my luck by asking you to acknowledge that such a construction flies in the face of rules for interpreting statutes, going all the way back to John Marshall?

Anyway, I do appreciate your time, and you should go ahead and move on if you like. I can't resist paraphrasing Winston Churchill, who once said that man sometimes stumbles upon the truth, but he always picks himself up and moves on. :-)
1.7.2006 11:32pm
Defending the Indefensible:
Mary Katherine:

I have no intent to mock you, nor to minimize any trauma you have been subjected to. With respect and sincere concern, what is at issue in the NSA surveillance controversy is not the sexual molestation of juveniles. (I might point out, however, that in an earlier thread on this topic, one of the commentators whose credibility has been impeached above did advocate the sexual mutilation of innocent juveniles if it would help to solicit intelligence.)
1.7.2006 11:32pm
Andrew Hyman (mail) (www):
Just Wondering:

The War Powers Resolution has to do with the President's authority to involve the military forces overseas in war or any other level of hostilities, right? Yup.

The AUMF has to do with the President's authority to use military force against those he deems responsible for 9/11, etc., and is meant to be the congressional authority the War Powers Resolution calls for. Right? Yup.

The last sentence [of the AUMF] clarifies that all the other requirements of the War Powers Resolution (the periodic reports, etc.) are still necessary, because otherwise the President could read the AUMF as superceding the War Powers Resolution (for the purposes of the wot), which would mean he could dispense with the other various requirements of the WPR. Yup.

Why must this be read to imply that all necessary and appropriate force means notwithstanding any other law? Well, you just said that --- without the last sentence of the AUMF --- the President could act notwithstanding other requirements of the War Powers Resolution. It doesn't make sense to say that the President would be free of those other War Powers Act requirements, but not free of 50 USC 1811, for example.

How does this make the WPR language surplusage? First of all, the surplusage argument only applies to the last sentence of the AUMF, and not to the previous stuff in the AUMF regarding the War Powers Resolution. And, regarding the last sentence of the AUMF, I don't think that sentence is surplusage. However, Just an Observer has said that perhaps it is surplusage, because (as I understand him) the President would have been bound by all other requirements of the War Powers Resolution even if the AUMF did not contain that last sentence.
1.7.2006 11:46pm
KMAJ (mail):
Let's deal with the mistaken 'elipsis' allegation. First, I believed that Hinderaker was using the asterisks for emphasis, not as elipsis. The standard designation for elipsis is ... or --, not asterisks. I did not want to emphasize that sentence, so I removed the asterisks, my mistake for not thinking they were ellipses. Secondly, that was not the what I focused my comments on, in fact, I emboldened that which I referred to and discussed. There were no elipsis in that paragraph editted out or otherwise. Below is the direct quote from Hinderaker with the link, below that is the link to my original post. One need only note that I did not even reference the paragraph in which the asterisks reside. English composition 101, a paragraph must stand on its own, I referred to and copied the full paragraph, as well as the preceding paragraph, minus the asterisks, even though I was not referencing it. Amazing the pack mentality of some and their willingness to jump on a bandwagon.

There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants.***That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history.***

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


Hinderaker Article

My post

Clearly, if some want to continue with their apoplectic invective of self-righteous rage, far be it for me to try to end their testosterone laced, chest thumping threats of harassment in the future.

A certain individual even suggested I should have changed nics to hide, to me that reveals more about that individual, because to do such a thing would be the ultimate act of cowardice, instead of facing the music. And that is apparently what this individual would do.

JaO,

I do have to wonder why you avoided commenting on those who cast insinuations about Bush and use Nazi comparisons. I have not seen one word from you when they have done so. Yet you see fit to attack my credibility on the basis I said some people could be biased ? Do you understand what such double standards reveal ? Is it because they share your same ideological point of view, so it is ok ? Why do they get a pass from you ? Enlighten us.
1.7.2006 11:49pm
Defending the Indefensible:
"Amazing the pack mentality of some and their willingness to jump on a bandwagon." Says the person who wholesale copies specious arguments and quotations from other sites (without attribution and edited to further conceal their origin).
1.8.2006 12:03am
Just Wondering:
Andrew said

Well, you just said that --- without the last sentence of the AUMF --- the President could act notwithstanding other requirements of the War Powers Resolution. It doesn't make sense to say that the President would be free of those other War Powers Act requirements, but not free of 50 USC 1811, for example.

OK, you've lost me again. What does 50 USC 1811 have to do with the War Powers Resolution? They are not connected. Why does it not make sense to say that the President still has to consult with Congress under the WPR, but expect laws having nothing to do with using military force to remain in place?

First of all, the surplusage argument only applies to the last sentence of the AUMF, and not to the previous stuff in the AUMF regarding the War Powers Resolution.

OK, I got that part.

And, regarding the last sentence of the AUMF, I don't think that sentence is surplusage. However, Just an Observer has said that perhaps it is surplusage, because (as I understand him) the President would have been bound by all other requirements of the War Powers Resolution even if the AUMF did not contain that last sentence.

But somebody may have argued that the AUMF is ambiguous as to the other requirements of the WPR. The last sentence removes any doubt that might have been raised since the AUMF and the WPR deal with the same types of authority. You can't possibly mean that if Congress wants to make sure unrelated laws remain in force, it must specifically mention them all.
1.8.2006 12:19am
KMAJ (mail):
DtI,

You really should work on your composition skills. You have too many extraneous 's' in that one short comment It is one incident, I assume you understand the difference between singular and plural, and I have done all the explaining and apologizing I am going to do. If it is not good enough for you, too bad. You must be guilty of my comment or it would not have caught your attention. Grow up and leave your playground mentality at home.
1.8.2006 12:28am
Medis:
Andrew,

You are conflating "surplusage" with "redundancy". "Surplusage" means words that would have no legal effect. The clause you cite is not surplusage because it limits the provision in question to the requirements of the War Powers Act.

In contrast, there is no general rule against "redundancy", meaning that different provisions of federal law end up having the same effect in certain circumstances. Indeed, if there was something like a rule against redundancy, probably 99% of the US Code would disappear.
1.8.2006 12:33am
Andrew Hyman (mail) (www):
Just Wondering:

You say that the last sentence of the AUMF removes any doubt that might have been raised since the AUMF and the WPR deal with the same types of authority. But 50 USC 1811 explicitly deals with wartime, and purports to set a 15-day limit on wartime electronic surveillance. And the power to conduct electronic surveillance is incidental to the warmaking power. Of course I don't mean that if Congress wants to make sure all other war-related laws remain in force then Congress must specifically mention them all. But Congress could easily have said "all necessary and appropriate force consistent with existing law." Or Congress could have simply omitted the last five words of the AUMF.
1.8.2006 12:43am
Just an Observer:
Andrew,

It really does not matter whether I think the language was redundant or not. Now that I have done your research, I don't think there was any redundancy.

Congress can excercise its prerogative to pass redundant laws if it chooses, whether or not you think it is good form. Congressional intent trumps elegantly good form every time, and if Congress feels the need to reenact the same requirement time after time, to assert its position with a recalcitrant executive, it may do so.

As for why Congress chose to emphasize that the War Powers Requirements remained in effect, but did not single out FISA for similar treatment, there is a long history of congressional mistrust of the executive on the issue of wartime consultation. Congress was looking to preclude any future weasling over this issue by a president who might say, "Well, gee, this new resolution included no specific consultation requirements, and you forgot to say 'Simon says,' so that's why we didn't consult you."

By contrast, FISA was settled statutory law, including a specific wartime provision, and there was a 23-year history of compliance and implementation, thousands of court orders and no known cases of avoidance of such established procedures.

I honestly think the President acted in bad faith after the fact, asserting that AUMF had secretly repealed some of FISA's requirements, and it came as a great surprise last month to most members of Congress to hear the preposterous assertion that that was their intent all along. I doubt that Congress will ever trust this president again on that particular issue, but there was no substantial reason to doubt his good faith in 2001.

Speaking of good faith, I do not think you ever have dealt honestly with the language of section 1811 in reasoning what congressional intent was in 1978.

As we have seen from the historical record, the WWI and WWII declarations all included sweeping authorizing language. In 1978, Congress absolutely knew what such a sweeping declaration of war looked like, yet it included a specific provision specifying in advance what would happen in such a state of war. Yet that construction would be absurd if, as you assert, such general authorizing language itself would repeal FISA's specific provision.

I respect your legal reasoning in general, Andrew, but in this case I think you are reasoning as a partisan advocate, not as an objective analyst. I, too, am trying as best I can to pursue statutory theories that might let the President off the hook legally, and like Prof. Kerr I stop short right now from finding that the administration definitely acted illegally. But I think your methodology in this matter is results-oriented.
1.8.2006 12:44am
Defending the Indefensible:
KMAJ suggests, "You really should work on your composition skills."

Part of composition is constructing a coherent argument, and not simply copy-pasting someone else's. The latter is often termed "plagiarism."

He further accuses, "You must be guilty of my comment or it would not have caught your attention." Speaking of composition skills, this doesn't even make sense. Guilty of your comment?
1.8.2006 12:48am
KMAJ (mail):
DtI,

Flog the dead horse all you want, it is far more revealing about you and your playground mentality.

I will be specific for you, as there seems to be a comprehension problem as well, insert 'bandwagon jumping' for 'my comment'.
1.8.2006 12:54am
Just an Observer:
KMAJ,

You know nothing of my ideological views, which I consider to be rather conservative. And I bear no grudge against this president on this issue. In fact, some of my posts have explored novel theories of how he might eventually be found to have acted lawfully, at least on technical grounds. But I will follow the facts and the law wherever they lead.

So take your spin elsewhere.

My issue with you is specifically related to your low ethical behavior on this blog. You sleep with your conscience, and I'll sleep with mine.
1.8.2006 12:55am
Andrew Hyman (mail) (www):
Medis,

You say I'm conflating "surplusage" with "redundancy". Well, yes I suppose so. It's okay to conflate things that are basically the same.

Redundancy is a form of surplusage. Check out Black's Law Dictionary. The definition of "surplusage" includes "superfluous matter," and the definition of "redundancy" says "superfluous matter."

Medis, you say that the last sentnece of the 2001 AUMF is not surplusage because it limits the provision in question to the requirements of the War Powers Act. Are you saying that --- without the last sentence --- the 2001 AUMF would have required conformity with the requirements of all pre-existing statutes, without limitation? That seems very similar to what I've been saying.
1.8.2006 12:57am
Medis:
Andrew,

There are at least three, not just two, ways in which the 2001 AUMF could be written such that it does not repeal any given existing law, including FISA. One way would be for it to specifically say that this given law was preserved. A second way would be for it to specifically say that all laws were preserved, which would necessarily apply to any given law (variations on this theme would involve specifically preserving a category of laws that includes the specific law in question).

But you are overlooking the simplest, and undoubtedly most commonly "used", way for a subsequent law not to repeal a given prior law. And that is simply to include nothing in the subsequent law that repeals this prior law.
1.8.2006 1:02am
Just Wondering:
Andrew said

But 50 USC 1811 explicitly deals with wartime, and purports to set a 15-day limit on wartime electronic surveillance.

So what? There are a lot of laws that mention wartime. Some require a declaration of war, some merely require hostilities. The War Powers Resolution does not necessarily have any effect on them.

And the power to conduct electronic surveillance is incidental to the warmaking power.

That may be true, although I'm not aware of any source establishing that to be the case. But even if it is, so what? FISA applies during war.

But Congress could easily have said "all necessary and appropriate force consistent with existing law." Or Congress could have simply omitted the last five words of the AUMF.

I would think "consistent with existing law" would be implied, unless there is an actual contradiction between the new law and an existing one. And again, I don't understand why Congress would have to omit emphasis on the requirements of the WPR lest everybody think the rest of the U.S. Code has been abandoned.
1.8.2006 1:02am
Medis:
Andrew,

But not all definitions of surplusage are equal to all definitions of redundancy.

I think I was quite clear about which definitions applied. The rule against surplusage means we should interpret all words as having a legal effect. That simply is not an issue here, because these words do have a legal effect: they limit the provision in question to the requirements of the War Powers Act, rendering 2(b)(2) neutral with respect to all other statutory requirements.

Your argument is basically that if the 2(a) of the AUMF repeals no statutory requirements (besides, perhaps, the requirements of the War Powers Act), then this provision in 2(b)(2) is "redundant" in that it doesn't matter whether or not 2(b)(2) is neutral with respect to other requirements.

But that does not render the 2(a) legally identical to 2(b)(2)--quite obviously, I might add. And that is because 2(a) does a lot more besides not repealing statutes. Indeed, as I noted, the fundamental fact you are missing is that a statute does not need to SAY that it is not repealing some prior statute. It just needs to be written in way that does not repeal the prior statute.

Unfortunately, we have discussed all this before and I know you are not going to give up on this argument. But I just wanted to note for the benefits of others that just because there is SOME redundancy between two provisions, does not mean they are ENTIRELY redundant. Hence, neither is "surplusage" within the relevant definition of "surplusage".
1.8.2006 1:24am
Andrew Hyman (mail) (www):
Just an Observer:

Thanks for your very good comments, and I'll think them over. Contrary to what you said, I didn't assert that the general authorizing language of WWII or WWI would have repealed FISA's specific provisions. Instead, I recall saying that the answer to that question is "ambiguous."

Anyway, I'll think about your most recent comment, which is interesting. I'm not mindlessly advocating for the administration here; IMHO, the administration's faulty arguments would render the exclusivity provision meaningless (and Medis is correct that "procedures in" FISA do not include procedures in the AUMF).

I don't think that you or Professor Kerr will be successful in finding any loopholes in FISA to get the President off the hook. What this all boils down to is what Congress meant by "all necessary and appropriate force." Did they mean the real thing, or did they have some technical legal thing in mind? Bush says he needed this limited NSA program to win, and if that's correct then the program is "necessary and appropriate." Let a court decide. I suspect that a court would grant the President broad discretion under the Necessary and Appropriate Clause of the AUMF, just like SCOTUS granted Congress broad discretion under the Necessary and Proper Clause (see McCulloch v. Maryland).

As far as the last sentence of the AUMF is concerned, you're saying that it was simply meant to drum a message into the President's head, and really didn't add any new content or meaning to the AUMF. I disagree. The place for berating the President and "sending a message" would have been in the "whereas" clauses of the AUMF. And there were plenty of those.
1.8.2006 1:24am
Medis:
Andrew,

Out of curiousity, do you think Congress intended the 2001 AUMF to render the UCMJ (another prior statute) discretionary?
1.8.2006 1:28am
Debater:
Another question here, in the December 24th article about the data mining, they mentioned they were searching to see who contacts who. In the definition of electronic surveillance number two, it mentions that they have to be dealing with the content of messages. Would knowing who contacted who be considered the "content?" Or would they have to actually listen to the calls? It seems to me that all the December 24th article is saying is that they used domestic telecom companies to do some data mining of who called who.

Thanks,

debater.
1.8.2006 1:31am
Andrew Hyman (mail) (www):
Medis,

No I don't think Congress intended the 2001 AUMF to render the UCMJ (another prior statute) discretionary. The reason is that the UCMJ plainly does not prevent the President from using "all necessary and appropriate force" to defeat Al Qaeda. In contrast, FISA'a warrant requirement for all international electronic surveillance would trigger the "probable cause" requirement of the Fourth Amendment, and that could prevent the President from using "all necessary and appropriate force" to defeat Al Qaeda.
1.8.2006 1:35am
Medis:
Andrew,

That doesn't answer my question. I take you to be saying that in substance, violating the UCMJ would never be "necessary and appropriate" (although I am not sure why you are so confident--what if, for example, the President suspected Al Qaeda had recruited agents in the armed forces--why couldn't he argue that the procedures in the UCMJ were too restrictive as he went on a hunt for these possible agents?). But that could just mean that in your view, the President would be abusing his discretion under the 2001 AUMF if he ordered the military to violate the UCMJ.

So, my question is not whether such a decision would be an abuse of discretion. Rather, my question is whether Congress intended the UCMJ to be discretionary in the first place.

And honestly, I don't see how you can distinguish the UCMJ from FISA in that sense, if your "surplusage" argument implies that ALL other federal statutes are now discretionary.
1.8.2006 1:44am
Just an Observer:
Andrew,

Thank you for your kind reply. I honestly mean no disrespect.

Thinking about your last comment, I think that when there are inter-branch disputes, such as over war powers, recent history with both parties has shown that Congress will hammer home its intent in more than just whereas clauses or non-bindig language. IIRC, no president has actually conceded that the War Powers Resolution has constitutional teeth, so the Congress periodically renews its claim lest it be deemed to have abandoned it.

I think Bush has now -- after the fact -- extended that aggressive attitude toward the field of foreign intelligence surveillance. Yes, other presidents have tested the boundaries, but he has overtly stuck his finger in the eye of the other two branches.

In such disputes, SCOTUS traditionally avoids jumping in to referee, rather hoping that the political branches will work it out.

It may well be that the next step in this dance is for Congress -- despite its good-faith belief that it already has spoken -- may take a redundant step on this specific issue. It will say, in effect, "Which part of no did you not understand? Here is some even more specific language. Defy it only if you want a constitutional crisis."

For example, the Senate may attach an amendment to the USA-PATRIOT Act renewal reaffirming explicitly that the AUMF did not undo any FISA requirements. I think that would not only be appropriate, it may be what the courts would expect before they were willing to adjudicate the spat.

A more pure approach, with Congress refusing to restate its will only because it had already been stated, could only be resolved in impeachment court. I don't believe the Constitution forces us to go there.
1.8.2006 1:49am
Noah Klein (mail):
JoA, DtI, and others:

I would ask that we forgive KMAJ for his mistake. He committed a enormous fault when conducting an intellectual debate, but that is in the past. He admitted a mistake, even if it is not to the specific egregious act. The reason I would suggest forgiving him is because it is interfering with the debate over the legality of the issue at hand. If KMAJ makes a similar mistake or a person agrees with him without understanding his record on this blog, then bring it up again, but now I think it is harming the debate.

This discussion reminds me of the movie Pulp Fiction:

Vincent: Jules haven't you ever heard the philosophy that once a man admits a mistake, he is immediately forgiven.

Jules: That [person] wasn't picking up little ity-bity pieces of skull and brain.

Yet even with that, Jules does forgive Vincent. I would say shooting somebody in the face in a car in broad daylight is worse than any action taken by KMAJ in this blog. While it is true that he did not admit to the specific act, let's just assume he did and move on.

Noah
1.8.2006 1:54am
Medis:
JaO,

That raises the interesting intersection between this issue and the McCain Amendment signing statment issue. What if the President signed a renewal of the USA-PATRIOT Act containing a "clarification" of FISA in a similar fashion? It would be interesting--to say the least--to see how Congress reacted.
1.8.2006 1:55am
KMAJ (mail):
JaO,

I think my tone has not been antagonistic or uncivil regarding opposing opinions on this case. It has been as measured as yours has. In fact, my main premise has been that this will take another court ruling to sort out the jumbled mass of opinions and interpretations on both sides.

It was one incident and I apologized for it, what do you want, blood ?

I notice you still avoid addressing the other 'mudslinging', which was not part of my mistake. Are you trying to say the other mudslinging is ethical ? I can't think of anything more offensive and abhorrent than Nazi references. It is not spin, it is fact, regardless of your ideological leanings. If you are going to specify opining about plausible bias as unethical, but say nothing when Nazi references are thrown about, it is a double standard.
1.8.2006 1:58am
Just an Observer:
Debater,

I would refer you to the definition in 50 USC 1801(n):


"Contents", when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication."
1.8.2006 2:00am
Medis:
Andrew,

To make my UCMJ example more specific, consider this Article:

"ART. 106. SPIES
Any person who in time of war is found lurking as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or jurisdiction of any of the armed forces, or in or about any shipyard, any manufacturing or industrial plant, or any other place or institution engaged in work in aid of the prosecution of the war by the Unites States, or elsewhere, shall be tried by a general court-martial or by a military commission and on conviction shall be punished by death."

Do accused spies actually have the right to a trial by court-martial or military commission? Or does the 2001 AUMF make that issue discretionary?

Again, it seems to me this is just the same basic issue as FISA (making the President comply with certain procedures before doing what he otherwise has the authority to do).
1.8.2006 2:00am
Just an Observer:
KMAJ,

I am still waiting for a retraction of your unfounded attacks on the ethics of 1) the authors of the CRS memorandum and 2) Judge Robertson.
1.8.2006 2:02am
Andrew Hyman (mail) (www):
Medis,

No, I do not believe that the 2001 AUMF made the President's compliance with the UCMJ discretionary. Compliance with the UCMJ is a fundamental and accepted incident to war. Complying with the more onerous aspects of FISA is not.
1.8.2006 2:05am
Medis:
Sorry for the "redundancy" Andrew, but this Article is even more relevant and a better illustration of my point:

"ART. 106a. ESPIONAGE
(a) (1) Any person subject to this chapter who, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any entity described in paragraph (2), either directly or indirectly, any thing described in paragraph (3) shall be punished as a court-martial may direct, except that if the accused is found guilty of an offense that directly concerns (A) nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large scale attack, (B) war plans, (C) communications intelligence or cryptographic information, or (D) any other major weapons system or major element of defense strategy, the accused shall be punished by death or such other punishment as a court- martial may direct.
(2) An entity referred to in paragraph (1) is--
(A) a foreign government;
(B) a faction or party or military force within a foreign country, whether recognized or unrecognized by the United States
(C) a representative, officer, agent, employee, subject, or citizen of such government, faction, party, or force.
(3) A thing refereed to in paragraph (1) is a document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance or information relating to the national defense.
(b) (1) No person may be sentenced by court-martial to suffer death for an offense under this section (article) unless--
(A) the members of the court-martial unanimously find at least one of the aggravating factors set out in subsection (c); and
(B) the members unanimously determine that any extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances, including the aggravating factors set out under subsection (c).
(2) Findings under this subsection may be based on--
(A) evidence introduced on the issue of guilt or innocence;
(B) evidence introduced during the sentencing proceeding; or
(C) all such evidence.
(3) The accused shall be given broad latitude to present matters in extenuation and mitigation.
(c) A sentence of death may be adjudged by a court-martial for an offense under this section (article) only if the members unanimously find, beyond a reasonable doubt, one or more of the following aggravating factors:
(1) The accused has been convicted of another offense involving espionage or treason for which either a sentence of death or imprisonment for life was authorized by statute.
(2) In the commission of the offense, the accused knowingly created a grave risk of substantial damage to the national security.
(3) In the commission of the offense, the accused knowingly created a grave risk of death to another person.
(4) Any other factor that may be prescribed by the President by regulations under section 836 of this title (Article 36)."

Are all these procedures now discretionary? Could the President bypass them and execute members of the armed forces accused of espionage using procedures of his own devising?
1.8.2006 2:06am
KMAJ (mail):
Noah,

I will say thank you, not that you were looking for one. I have been very careful since that mistake to make sure I give attribution. I know our positions are to some degree opposite, I am straddling the fence as to the legality, I know you believe it is illegal or wrong, in simple terms. I know your detailed position is much more complex. Though I may not always agree, I find your arguments to be very informative.
1.8.2006 2:09am
Andrew Hyman (mail) (www):
Medis,

Like I said, no I do not believe that the 2001 AUMF made the President's compliance with the UCMJ discretionary. Compliance with the UCMJ is a fundamental and accepted incident to war. Complying with the more onerous aspects of FISA is not.
1.8.2006 2:09am
Medis:
Andrew,

Sorry, we cross-posted.

Why exactly is the UCMJ "a fundamental and accepted incident to war", as opposed to FISA? I might note that Congress is constantly changing the UCMJ. What if Congress incorporated FISA into the UCMJ?

I don't see how the labels matter. FISA and the UCMJ do the same thing: they force the President to follow certain procedures when using his Commander in Chief powers. And given your 2001 AUMF argument, I don't see how you can say Congress intended to "save" the UCMJ, since they didn't mention it.
1.8.2006 2:11am
Medis:
Andrew,

Sorry, we cross-posted again. But the procedures in Article 106a look pretty "onerous" to me--and it is not like the procedures in FISA are terribly onerous in their own right.

And how is anything you are saying now consistent with your "surplusage" argument?
1.8.2006 2:13am
jukeboxgrad (mail):
Andrew,

"we mean for the President to use all necessary and appropriate force against the enemy notwithstanding other legal requirements"

I have no problem so far. Those last four words would presumably mean "FISA was obviously written with war, as well as peace, in mind, so don't get any funny ideas about how AUMF can be contorted into an implied repeal of FISA."

"is to be determined in view of what other presidents have traditionally been able to do."

Now I have a problem. Please explain why "what other presidents have traditionally been able to do" should trump FISA, especially given that the presidents you seem to have in mind, pre-dated FISA.

"which wouldn't make sense unless SOMETHING was indeed superceded"

I realize you're using the surplusage concept to reason that "SOMETHING was indeed superceded." But where do you draw the line? Surplusage is surplusage. In for a dime, in for a dollar. Why not conclude that "EVERYTHING was indeed superceded?" There's a word for that: monarchism.

"How can judges evaluate the legality of any secret government activity?"

The answer in this case was that the judges would be on a special secret court. What a clever idea! Too bad Bush decided to do an end-run around them.

"The reason is that the UCMJ plainly does not prevent the President from using 'all necessary and appropriate force' to defeat Al Qaeda"

As far as I can tell, the administration felt otherwise about UCMJ (link).

"Compliance with the UCMJ is a fundamental and accepted incident to war. Complying with the more onerous aspects of FISA is not."

This seems to be a subjective evaluation on your part. It seems that Bush feels that portions of UCMJ are dispensable. Don't forget, 9/11 changed everything.
1.8.2006 2:14am
Noah Klein (mail):
Andrew:

That is not completely logical, because your interpretation of the 2001 AUMF would force us to ignore Section 1811. If the UCMJ applies in wartime after a declaration of war or a AUMF, then why wouldn't another provision apply during wartime if it specifically addresses the issue.


Noah
1.8.2006 2:14am
jukeboxgrad (mail):
DtI

"crying would perhaps have been the more correct response"

Exactly. In this thread I point out that Biobrain might just be a pseudonym for Mansfield. The two articles seem cut from the same cloth.
---
Mary,

"You like to mock and satirize what the President's domestic program is doing?"

I realize you didn't address me directly. I'd still like to share my hunch, that the writer of this blog entry has views about the "President's domestic program" that are highly conguent with your own.

I think it's proper to mock "the President's domestic program." I don't understand your claim, that the article is mocking "what the President's domestic program is doing."
1.8.2006 2:15am
jukeboxgrad (mail):
KMAJ,

"A certain individual even suggested I should have changed nics to hide, to me that reveals more about that individual, because to do such a thing would be the ultimate act of cowardice, instead of facing the music"

That "certain individual" was me. My point, since I guess you missed it, is that your name is ruined so you might as well throw it away. If you think I was giving you literal advice, that's your problem.

By the way, it's nice to know that your idea of "facing the music" is showing up here at midnight on a Saturday, which is probably the exact moment when this place is most deserted. It's also peculiar that it took you 4-5 days of denial and evasion (and a long series of reminders and complaints) before you finally decided that "facing the music" was a good idea.

"I believed that Hinderaker was using the asterisks for emphasis, not as elipsis."

If one takes this explanation at face value, it indicates that you were too careless to familiarize yourself with the original text (because if you were familiar with the original text, you would have understood that Hinderaker's asterisks were intended as ellipses, rather than intended as emphasis), and instead were content to passively accept Hinderaker's version of the text, along with his interpretation of the text. And of course in your post here you gave no hint that your source was the famously biased and sloppy Hinderaker.

Putting the matter of the ellipses completely aside, Hinderaker mangled Jackson's text via selective quoting, and you happily accepted Hinderaker's approach to the text. That's enough to convince me that anything you post is liable to be misleading and distorted. This is because you're obviously willing to use a source such as Hinderaker, without revealing that your source is Hinderaker, and without doing your own thinking and fact-checking to make sure that Hinderaker's handling of the text is honest.

As DtI said, "part of composition is constructing a coherent argument, and not simply copy-pasting someone else's." And I think the problem is compounded when that "someone else" is the likes of Hinderaker, who has a track record of being untrustworthy.

"I emboldened that which I referred to"

When the emphasis is added (as compared with appearing in the original), it's customary to say something like this: "emphasis added."

By the way, for reasons that only Power Line can explain, they routinely use asterisks for the purpose of ellipses. At the moment, this search returns several dozen such examples. On rare occasions they will use an ellipsis as an ellipsis (imagine that), but it only seems to happen when the ellipsis already appears in text they've grabbed from somewhere.

They do emphasis in the normal ways, via bold or italic, as can be seen here.

Now that I've given you a primer in how to read Power Line, maybe in the future you'll be less inclined to be tricked by them (in this particular way that you were ostensibly tricked). But you're still likely to be tricked by them in other ways, and then pass that trickery along, either knowingly or unknowingly (as you did in this instance, even putting aside entirely the matter of the ellipses). Therefore I stand by my original claim, that you can't be trusted.
1.8.2006 2:17am
Debater:
Thanks for the help. I haven't gone to law school yet so alot of this discussion is over my head. I guess that definition of content + the December 24th article shoots down the idea that what Bush did not fall under the definition of electronic surveillance, putting the administration on very weak justifications for what they did.
1.8.2006 2:19am
Medis:
jukeboxgrad,

To be fair to Andrew, he has acknowledged he is not making the same arguments as the President, so maybe he does not think the 2001 AUMF authorized the President to order any violations of the UCMJ.

Although I still don't understand how he knows from the 2001 AUMF that the UCMJ is in and FISA is out--particularly since like the UCMJ, FISA was specifically intended to apply to the military, including during times of war.
1.8.2006 2:25am
jukeboxgrad (mail):
"I haven't gone to law school yet"

No need to apologize for that. Neither has Bush, obviously.
1.8.2006 2:25am
Andrew Hyman (mail) (www):
Medis,

I've got to go now, so this will be my last comment for awhile. Suppose a court construes the 2001 AUMF as conferring on the President authority to use "all necessary and appropriate force notwithstanding prior incompatible laws." Then the court would address whether a particular action of the President is in fact authorized by the 2001 AUMF. If the particular action is consistent with all pre-existing statutes, then the President would have a lower burden of proof. If the particular action is inconsistent with pre-existing statutes, then the President would presumably have a higher burden of proof. If the particular action is not only inconsistent with pre-existing statutes but is also contrary to the "fundamental and accepted incidents to war," then the President would --- I suspect --- have a virtually infinite burden of proof. So, I suppose you'd have to look at each provision of the UCMJ to see if it's a fundamental and traditional incident to war. But, as the UCMJ stands today, I don't think the President has any significant discretion under the 2001 AUMF to override it.
1.8.2006 2:26am
Defending the Indefensible:
Noah,

Certainly, I forgive him for behaving foolishly, and even for continuing to do so now. This does not restore credibility, and in my opinion there is little that can be said now to demonstrate that once it has been lost. Presumably if he has learned a lesson here, it will be reflected in his future conduct and he could regain trust, but this is really an impossibility while he continues to spin partisan smears.
1.8.2006 2:30am
jukeboxgrad (mail):
Medis,

"To be fair to Andrew ... "

Thanks, I see your point. I realize he's not claiming Bush has a right to trash UCMJ. However, I'm not sure he realizes that Bush has done so (as far as I can tell).

And I agree that the main question is just what you say: how does Andrew claim that AUMF makes FISA dispensable, but not UCMJ.

In my opinion, this point was made very helpfully by Andrew J. Lazarus, who said something like this: 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?
1.8.2006 2:32am
Medis:
Andrew,

I very much doubt Congress had any such intention with respect to the UCMJ (to let the President and a court decide whether individual provisions in the UCMJ were still appropriate). But I guess you really believe the 2001 AUMF was intended to fundamentally alter a system of military governance that has existed since the Revolutionary War.

Personally, I suspect they were not quite that ambitious.
1.8.2006 2:36am
jukeboxgrad (mail):
"I guess you really believe the 2001 AUMF was intended to fundamentally alter a system of military governance that has existed since the Revolutionary War."

Didn't you hear? 9/11 changed everything.
1.8.2006 2:38am
Kazinski:
I think the CRS report is interesting in that they have a perspective of Congressional primacy. While of course the DOJ has a focus on Executive Primacy. The authors of the CRS seems to express a belief that the courts should defer to the legislative branch in this matter. The courts have always avoided ruling directly on the issue of whether Congress can narrow the inherent excectutive power conduct warrantless FI surviellence, while dropping hints that they would side with the executive if it came down to it. By hints I mean Keith, Sealed Case and Jacksons (non-binding) Youngstown concurrence. If congress wants to definitively settle the matter they should go the route of impeachment, because I don't think they could depend on the courts. I don't think Congress ould depend much on the American people to back their play either.

Now that Rison's book had been released it looks like there are relevations even more important than the NSA program. Mainly that the CIA, and an unreliable CIA plant provided the Iranians with a key missing element towards getting a nuclear device. Haven't heard much about this. Guess it's not important enough.
1.8.2006 2:40am
Medis:
jukeboxgrad,

I think what Andrew is arguing is that the words, "(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution," imply that insofar as Congress has passed such a law, they nonetheless intend to leave it up to the President, perhaps with the aid of the courts, to decide whether that law is appropriate.

Frankly, with all due respect to Andrew, I think that argument is absurd. Which is probably why I haven't seen anyone but Andrew make it.
1.8.2006 2:40am
Medis:
jbd,

Sorry--that was another cross-post, but obviously we agree on the nature of Andrew's argument.

And I have to admit, I find it amazing that some people really seem to think we live in greater jeopardy as a nation today then we did in the Revolutionary War.
1.8.2006 2:44am
Just an Observer:
Medis: "That raises the interesting intersection between this issue and the McCain Amendment signing statment issue. What if the President signed a renewal of the USA-PATRIOT Act containing a 'clarification' of FISA in a similar fashion?"

Just catching up to that remark ---

I am uncomfortable contemplating the answer to that question. When the president dares us to make him enforce the law, and hints that he had his fingers crossed when he signed it, the picture is not pretty.

I do agree that similar scenarios conceivably may arise in a variety of issues clustered around the War on Terror -- torture, detention, tribunals, surveillance -- where the Bush team has taken an aggressive legal posture. When Michael Luttig was moved to rebuke the administration for not playing straight with the courts, that was a wake-up call. Underlying all of these matters is John Yoo's doctrine of executive power.

On the intelligence matter, my first instinct was to think of it as a civil-liberties matter. But I have become most concerned about the separation-of-powers and checks-and-balances ramifications.

I am actually becoming frightened by the assertion of unlilateral power across the board. And I think many others from the center and right are increasingly concerned as well. These issues do not break down purely along partisan lines.
1.8.2006 2:45am
Defending the Indefensible:
JaO,

From the left perspective, I'd suggest that FISA itself is a civil liberties matter. Unilateral violation of FISA is purely a separation-of-powers and checks-and-balances issue. FISC is not known for denying warrants, and when they have done so (Re: Sealed Case) the Court of Review has overruled on appeal. So it's basically understood that the procedure is mostly a formality, but one which must be observed for the substantive purpose of retaining judicial jurisdiction.
1.8.2006 2:58am
KMAJ (mail):
JaO,

I did not attack the ethics of the CRS opinion writers. Nowhere did I claim their effort was not in good faith. First of all, let me explain, I think everyone is biased to some degree or another. It is human nature, our personal experiences, work place atmosphere and beliefs affect how we approach and see things, thus bias in inherent in being human.

As far as Judge Robertson, I may have been a little harsh in citing plausibility to his resignation, but we make the same mistake if we allow the idea it was in protest when he has not stated so himself. I do tend to be a skeptic when timing is suspicious.

I prefer civil discourse to confrontation and respecting others rights to their opinion even if I disagree vehemently. Nothing is ever learned when the subject gets blurred with emotional confrontation. I am not a lawyer nor am I particularly computer savvy. I do not think of myself as superior to anyone. My ideological leanings tend to be more classic liberalism, which most people don't realize is a conservative ideology and is pretty far removed from today's progressive/modern liberalism position.
1.8.2006 4:38am
KMAJ (mail):
jukebox,

You would have to be assuming I am a regular Powerline reader, which is a false assumption, I did an MSN search on 'Youngstown Steel NSA'. I clicked on the Powerline link, it was at the top. I have never seen asterisks used for elipsis, I have personally used them to highlight if my limited knowledge of html isn't working. The Powerline article seemed reasoned, as I have said many times, I am not a lawyer. I do not claim to know much about Hinderaker, I do know he was one of many who gained some notoriety for exposing the Rathergate memo. I checked his bio before reading the article and he is a lawyer in Minneapolis, I think.

Certainly I have my own biases I bring into my opinions, we all do, but I also read the contrary opinions in full. It wouldn't make much sense to not at least try to understand why someone believes differently. Most of the time I can generally understand why even if I disagree, though there is the ocassional opinion that makes me think someone is putting something in their morning coffee and it isn't sugar.
1.8.2006 5:00am
Medis:
KMAJ,

As I noted before, I do think it is reasonable to suspect the CRS has a "pro-Congress" bias, and that might be relevant to their judgment about who should win in a contest between Congress and anyone else, including the President.

But as I also noted before, I see no reason to think a "pro-Congress" bias would lead one to see a conflict where one did not exist. In other words, a pro-Congress bias would not lead them to prefer to see this as a Category Three case, as opposed to a Category One or Category Two case (just as the DOJ's pro-President bias would not lead them to prefer see this as a Category 3 case).

So, insofar as they were arguing about which Category this case belonged in, I don't think we can see it as a matter of pro-Congress bias.
1.8.2006 9:39am
Mary Katherine Day-Petrano (mail):
Defeding the Indefensible -- "I have no intent to mock you, nor to minimize any trauma you have been subjected to. With respect and sincere concern, what is at issue in the NSA surveillance controversy is not the sexual molestation of juveniles."

Oh, to the contrary, I can prove it is. My father worked for IBM on NSA's ECHELON and domestic surveillance system, and he drugged me to commite sexual molestation and abuse on me at ages 14-17, and IBM hired his attorneys to protect him, and he shared national security secrets with me about NSAs programs, and he told me and my mother he was protected due to his position as essential to national security and could get away with what he did. Hence, one can readily conlude that the NSA domestic surveillance program uses even those means to justify the eends of surveilling US citizens on US soil who bring ADA civil rights lcaims to remedy a longstanding wrng involving a person who used his national security position to commit the wrongs. If you don't believe me about the Quaalude corroboration, check the criminal and arrest databases for early 1970's, drug arrest in Stamford, Conn., NY-Conn. prosecution, Kenneth Gordon Day.

What you really mean is, the idea the NSA domestic surveillance program is so shrouded in and protective of national security that its architects can commit the most sordid wrongs, ones that give you the heebie-jeebies, and be protected with the victim being unable to obtain any remedy anywhere is not one the Administration wants the public to know. So the Administration should advocate date-rape drug enahanced childhood sexual abuse, traumatic brain injury by head bashing, and throw the victim on the trash heap of society -- all in the name of national security to spy on every American?

That what you mean. So say it.
1.8.2006 10:19am
Mary Katherine Day-Petrano (mail):
jukeboxgrad, if the President's domestic surveillance/"use of force" program should 'be mocked,' why has it been 16 years and I can get no remedy anywhere?

All I have ever asked for in my ADA tribulations is simply reasonable accomodations necessary for the disabilities my father caused me, for my bar licenses in California and Florida for which I, like everyone else, worked very hard by obtaining a J.D. as a single parent against all odds, and not to have my driver's license taken away on a perfectly clean driving record (not even a parking ticket for the last 10 years).

Clearly, this Administration does not want anything that would sway public opinion against the unbridled power they seek arising from their ability to domestically surveil all Americans.
1.8.2006 10:44am
Just an Observer:
KMAJ at 1/7 6:32 AM:

... You do mention that they [the two CRS legal analyests] 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. ...


KMAJ at 1/8 4:38 AM

I did not attack the ethics of the CRS opinion writers. Nowhere did I claim their effort was not in good faith. ...


No, you merely insinuated in the most scurrilous way that they might have.

That would have violated the core of the professional ethic in their jobs as staff attorneys of the American Law Division at CRS. Their scholarly mission is always to be nonpartisan in drafting such legal memos, because the clients they serve belong to both parties. That is why CRS is insulated within the Library of Congress.

KMAJ at 1/8 4:38 AM

As far as Judge Robertson, I may have been a little harsh in citing plausibility to his resignation, ...

This is inching closer to a retraction. Keep working on it.

I do note that the unsubstantiated allegation you raised against Roberston seems to have been one of the propaganda points published on another of those polemic web sites -- in this case the one operated by AJStrata.

Neither he nor you have any basis for the allegation -- other than that it is "plausible." It is plausible that you may beat your wife, even though I have no evidence that you do. Do you find it acceptable if I suggest on various web sites that you might be a wife-beater?

In both cases, this practice of yours is what I call slinging mud and then ducking.

1) You did sling mud.
2) You continue to duck.
1.8.2006 11:52am
Defending the Indefensible:
Mary Katherine:
So the Administration should advocate date-rape drug enahanced childhood sexual abuse, traumatic brain injury by head bashing, and throw the victim on the trash heap of society -- all in the name of national security to spy on every American?

That what you mean. So say it.
No, ma'am. I certainly do not mean that, nor do I even believe the administration has the "national security" right "to spy on every American".
1.8.2006 11:53am
Tom Holsinger (mail):
Professor Kerr,

Before starting your posts on this issue, please check out the sources I recommended on Congressional intent in enacting FISA in 1978. Those can be found in the Congressional Record, James Bamford's books on the NSA, and newspaper archives at the time.

My recollection of that intent, from brief discussions with my father and the House Intelligence Committee Congressman he was the administrative assistant for at the time, plus newspapers and magazine reports, was that Congress focused on limiting "domestic surveillance" - of communications taking place wholly within the U.S., and did not at all intend to limit existing "foreign surveillance" - of communications which crossed an international boundary (ours or anyone else's).

It is also very much my impression that technological advances have rendered FISA obsolete, and that it desperately needs updating. It just can't work anymore the way it was intended.
1.8.2006 12:40pm
Michael B (mail):
"FISC is not known for denying warrants, and when they have done so (Re: Sealed Case) the Court of Review has overruled on appeal. So it's basically understood that the procedure is mostly a formality, but one which must be observed for the substantive purpose of retaining judicial jurisdiction." Defending the Indefensible

That's an interesting way to put it in several respects, will cover two of those here. The "substantive purpose" meaning the "substantive legal purpose" in contrast to the "substantive real world purpose," which contrast is more than a mere rhetorical move as it reflects, for example, Gary Schmitt writing on the subject: Constitutional Spying: The solution to the FISA problem. Schmitt opens:

"The Foreign Intelligence Surveillance Act (FISA) is a chronic problem. [...] ... FISA has been a problem ever since it became law in 1978."

"... like so much else from [that post-Watergate period], the broad arguments about the president's role in the constitutional order were wrong, and the laws designed to correct real problems created a new set of problems."

[...]

"... the reason for the high percentage of approvals [of warrants by FISA court judges] has less to do with deference to executive judgment than with FISA's standard for obtaining a warrant when it involves surveillance of an American citizen or an alien residing legally in the United States. Before the government can get a warrant, the Justice Department must put together a case to present before the court stating the "facts and circumstances relied upon . . . to justify [the attorney general's] belief that the target is an agent of a foreign power" or "engages . . . in international terrorism." And the FISA judges can only grant the warrant when "there is [previously established] probable cause to believe that the target" is engaged in espionage or terrorism. In short, before the government can collect intelligence on someone by breaking into his house or tapping his phones, it had better already have in hand pretty persuasive evidence that the person is probably up to no good. FISA is less about collecting intelligence than confirming intelligence." My emphasis.

Put differently and in contrast with the (stated or apparent?) purposes of the NSA program in question, FISA requires preliminary justification where the NSA program is focused on collecting intelligence.

Further, DtI's quote is just short of indicating FISA has virtually been superfluous if viewed in purely practical terms (since it's implied they've been little more than a rubber stamp). And yet, the Schmitt article refutes that notion as well, since FISA (and recall the War on Islamofascism is the first time FISA has been tested during a time of war, in contrast to the UCMJ) and the FISA court judges have effectively acted as deterrents, in both a perceived and real sense, to obtaining timely surveillance information. The Schmitt article cites both the Moussaoui case and the Wen Ho Lee case. Schmitt summarizes this section:

"Though much of the court's workings are classified, there are known instances in which FISA's "probable cause" standard prevented the government from getting warrants where common sense made it perfectly clear surveillance was justified." Again, my emphasis.
1.8.2006 1:14pm
Defending the Indefensible:
Michael B:

We could have an interesting debate on the merits of FISA, I'm sure, but I was not so much concerned with advocating the left perspective as expressing it for the purpose of showing that this is not at issue. What is at issue is the administration unilaterally disregarding separation-of-powers and checks-and-balances.
1.8.2006 1:23pm
Medis:
Tom,

That makes no sense given the definition of "electronic surveillance" in FISA. 1801(f)(3) specifically provides "if both the sender and all intended recipients are located within the United States." In contrast, 1801(f)(1), (2), and (4) contain different limitations. So if Congress wanted the limitation in (f)(3) to apply to all four categories, they could have said so, as they did in (f)(3). But they didn't.

Incidentally, we have updated FISA since 1978 in light of new technology. The last time was in the USA-PATRIOT Act. That isn't to say we did a perfect job, but the idea that we haven't reconsidered FISA post-9/11 and in light of new technology is false.
1.8.2006 1:31pm
Defending the Indefensible:
JaO write regarding KMAJ:

I do note that the unsubstantiated allegation you raised against Roberston seems to have been one of the propaganda points published on another of those polemic web sites -- in this case the one operated by AJStrata.

This is interesting. So basically we're being deluged (or deluded) by a bunch of clones spouting the same propaganda from central repositories of spin. Yay.
1.8.2006 1:31pm
Just an Observer:
Michael B,

Your post raises interesting public-policy questions about whether FISA ought to be amended. You and the columnist you quote, Gary Schmitt, argue that its restrictions are too burdensome on the government.

I do not here agree or disagree with that proposition. I only point out that your questions about what the law ought to be are very different from the issues of what the law actually is, and whether it was violated by the NSA surveillance.

The Bush administration did seek several amendments to FISA after 9/11, which after legislative review were adopted as a major part of the USA-PATRIOT Act. Notably, the administration did not seek expanded authority for the warrantless NSA surveillance. According to Attorney General Gonzales, a major reason it did not was that it did not seem Congress would agree to such changes in the law.

Now may be a good time for you and Schmitt to lobby Congress to change FISA in the future.
1.8.2006 1:35pm
Defending the Indefensible:
I found this interesting:
...and our company has a few contracts with the Federal Government (hence my reservations about going public all at once).
With the scandal of the administration paying for favorable media coverage in other circumstances, I have to wonder.
1.8.2006 1:40pm
Michael B (mail):
FISA is not some archaic law which requires a horse rider to refrain from tying his horse to a certain type of signage in the town square. To the contrary, it has real-world consequences of some moment.

Later though.
1.8.2006 1:45pm
Defending the Indefensible:
Michael B:
FISA is not some archaic law which requires a horse rider to refrain from tying his horse to a certain type of signage in the town square. To the contrary, it has real-world consequences of some moment.
Precisely why its provisions cannot lightly be ignored.
1.8.2006 1:48pm
Medis:
DtI,

Exactly--FISA was INTENDED to have real-world consequences. And as amended by Congress in the USA-PATRIOT Act, those consequences were intended with full knowledge of 9/11 and the challenges we face in fighting international terrorism.

Incidentally, a recent poll suggests 56% of the American public supports a warrant requirement for international calls and emails.
1.8.2006 2:01pm
Medis:
Sorry--international calls and emails of US citizens.
1.8.2006 2:02pm
Charlie (Colorado) (mail):
You know, folks, as a member of the Cherokee Nation, I wonder if you're aware that the Executive is an equal power, and has been asserting its prerogatives for a lot longer than George bush.
1.8.2006 2:13pm
Medis:
Charlie,

Indeed. Many such "assertions", in fact, led to the passage of FISA in the first place.

Anyway, the President and Congress being equal would imply they both have a role to play. Those who want to exclude Congress are thus not asking for Presidential equality--they are asking for Presidential preeminence.
1.8.2006 2:19pm
Andrew Hyman (mail) (www):
Just for the record, about twelve hours ago, I said I had to leave this conversation, but it seems that certain people took that opportunity to subsequently put words in my mouth.

The last thing I said (at 2:26 AM) was: "as the UCMJ stands today, I don't think the President has any significant discretion under the 2001 AUMF to override it."


Then Medis said at 2:36 AM: "I guess you really believe the 2001 AUMF was intended to fundamentally alter a system of military governance that has existed since the Revolutionary War."

Pardon me? I said just the opposite. Geez.

Then jukeboxgrad sarcastically repeated the nonsense at 2:38 AM.

Then Medis decided at 2:44 AM that he hadn't finished debating this point with himself: "I find it amazing that some people really seem to think we live in greater jeopardy as a nation today then we did in the Revolutionary War."

Well, like I said several times, the UCMJ is in no danger whatsoever. The UCMJ is perfectly consistent with all fundamental incidents of war, and in no way prevents the President from using "all necessary and appropriate force" against Al Qaeda. To the extent that FISA is different from the UCMJ in this respect, I do believe that the AUMF was intended to take precedence.

Anyway, I'm just dropping in to correct the record, and am now dropping out.
1.8.2006 2:25pm
Medis:
Andrew,

I stand by my comment. First, the very statement you quote from your 2:26am post implies that the UCMJ is now discretionary--even if you think, for reasons never explained, that in substance the President would never find it necessary and appropriate to violate any provision of the UCMJ. The UCMJ and its predecessor, the Articles of War, have never been discretionary before, and indeed they were not discretionary in the Revolutionary War. So, already you are saying that the 2001 AUMF fundamentally changed the legal nature of the UCMJ (even if you think in practice--for reasons never explained--that the UCMJ would hold up better than FISA).

Second, you are omitting other relevant portions of both your 2:26am statement and my 2:36am statement.

Specifically, you said at 2:26am:

"Suppose a court construes the 2001 AUMF as conferring on the President authority to use 'all necessary and appropriate force notwithstanding prior incompatible laws.' Then the court would address whether a particular action of the President is in fact authorized by the 2001 AUMF. If the particular action is consistent with all pre-existing statutes, then the President would have a lower burden of proof. If the particular action is inconsistent with pre-existing statutes, then the President would presumably have a higher burden of proof. If the particular action is not only inconsistent with pre-existing statutes but is also contrary to the 'fundamental and accepted incidents to war,' then the President would --- I suspect --- have a virtually infinite burden of proof. So, I suppose you'd have to look at each provision of the UCMJ to see if it's a fundamental and traditional incident to war."

And I said:

"I very much doubt Congress had any such intention with respect to the UCMJ (to let the President and a court decide whether individual provisions in the UCMJ were still appropriate)."

And as I said before, the idea that Congress intended to authorize the procedure you described--the President and a court going through each provision of the UCMJ to see whether it was still appropriate--is completely alien to how the UCMJ and its predecessor--the Articles of War--have been treated throughout their history. And that is true regardless of what burden and standard of proof you think--with no apparent statutory source--Congress intended the President and this court to apply during its review of provisions in the UCMJ.

Finally, I am frankly baffled by why you think your analytic framework would distinguish FISA and the UCMJ. I thought intelligence gathering WAS considered a fundamental incident to war. So if Congress legislates on that matter, doesn't that mean it is just like Congress's other legislation on matters fundamentally incident to war--like the matters covered by the UCMJ?

Finally, given what you said, if Congress has legislated on a fundamental incident of war, and the President has decided to bypass that legislation, it doesn't fall into your third category. Rather, it falls into your second category--where the President has a higher burden of proof for satisifying the Court that his actions were necessary and appropriate. Again, I see no reason why you believe the UCMJ is somehow less subject to this analysis than FISA.

Of course, I realize you were not here to clarify your statements. But if you are going to rest on the "record"--then so will I.
1.8.2006 3:01pm
Jamesaust (mail):
Hmmm...as the person who "outed" KMAJ originally, I believe an adequate vetting of his approach has been made. Should any warning need be given to third parties in the future, citation to earlier events as archived history may be made.

I am relieved at the contrition expressed even if it seems limited in recognition of its sins. How far that approach has come from the initial (2nd actually) riposte that (a) the matter was one of motivation not substance - my own alleged partisanship, (b) a refusal to acknowledge procedural error - 'everyone does it,' (c) a Freudian-like attempt to mirror in others the charactertistics of the poster, (d) a refusal to consider the possibility of neutral analysis, and (e) a lashing out at such "outing" as an attempt to "intimidate" or "bulldoze" KMAJ. Would that a gentle acknowledgment of error and an open desire to explore and reconsider had been the core of that initial response. How much digital ink has since been wasted pinning down KMAJ from his attempts to wiggle away from the spotlight?

The question is: has there been any actual learning here? I suspect not but await surprise.
1.8.2006 3:51pm
Jamesaust (mail):
Given the subject of personal belief, here at least are a few thoughts on the NSA matter:

A. I proceed from the assumption that all acts ordered done by the President have been done with an eye to preserving the nation's security against terrorist threat.

B. Like Prof. Kerr, I lean toward the conclusion that the President's acts carry a presumption of constitutionality - at least when isolated and examined separately from other considerations (such as whether Congress has claimed by its own constitutional authority an overlapping sphere of territory in a contradictory manner).

C. Absent detail about the nature of the NSA activity, I also read the FISA statute as criminalizing the acts ordered by the President.

D. I note that the Constitution provides "war powers" to both the executive and legislative branches, and futher, that the greatest quantity of such powers are granted to the legislative, although perhaps the most practical is devoted to the executive.

E. I find with irony that FISA appears constructed not to limit executive authority (J. Jackson's #3 scenario - the one the Administration appears to have forced itself into) but rather a means toward #1 - a united expression of executive and legislative constitutional authority with the consequence that challenge to this 'spying' is virtually unassailable, certainly, given the subject matter, via the Courts.

F. That the Administration reveals its own belief that its constitutional foundation is weak by various claims and the silence on certain core questions.
i. that the use of force resolution somehow waived away all other Congressional statements on FISA
ii. the executive somehow has a reserve of executive authority to carry out unique responsibility (C-in-C) separate from responsibility to carry out the legislative's statutes
iii. that foreign terror groups are constitutionally (and statutorily) indistinguishable from foreign powers
iv. that Congressional (or judicial) 'meddling' via the warrant process impedes the effective execution of acts to protect the nation's security
v. that discussion with a handful of legislative persons about some aspects of the NSA program satisfies any consultative or oversight requirements; that is, to reveal a fait accompli years after the fact under conditions of secrecy so total as to deny discussion with other legislators or staff, let alone actual debate, and only of such facts as the executive is willing to address, satisfies the whole of the Constitution's rightful anticipation of a co-equal branch's role.


The underlying assumption inherent in the Administration's approach seems to be found in the answer to the question: what do we mean by "rule of law"? why is "rule of law" good?

The Administration's answer seems to be - hey, "rule of law" is great as long as it doesn't limit 'good people trying to do good things.' Since no one in their right mind would ever set up a "rule of law" that prevented 'good people' from 'trying to do good things' [the Constitution is not a suicide pact] whenever there appears to be a conflict that is only because there is a misunderstanding about what the law is. Rule: as long as the substance of the act is 'good' then the act itself is Constitutional.

Of course, that is not the whole of "rule of law." The principle is quite agnostic as to whether the law is good or not. It is ironic that a Republican Administration would need a reminder that not all law is good. Rather, "rule of law" also carries procedural requirements. Form does matter. 'Good' is made more likely by the shaping of institutions (among them, the separation of powers, checks and balances). The U.S. Constitution is all about those shaping institutions.

Here is the nub of what is worrisome about the method (less than the substance) of the Administration's acts. Despite the recitation in polities with written constitutions that the text is the exclusive guide, in fact, no constitutional structure can escape what polities with unwritten constitutions already know - that precendent and context are just as important as any rule or maxim. Here, this Administration has established precedent that would be most dangerous in the hands of a future Administration controlled by persons who were not 'good people trying to do good things.'

It has never been clear if Julius Caesar intended to create the Empire that came later, perhaps rightly characterized in the New Testament as evil at its core and contemptuous of good. Julius Caesar has been a symbol of tyranny ever since, including to the Founding Fathers. Others have noted that Caesar filled a void in the political needs of an expanded reach that a government designed to rule a city (Rome) could not - that is, circumstances changed. [cf. "9/11, terrorism and technological advancements in commiunications and weaponry, have changed the legal paradigm"] It was however the extra-constitutional nature of Caesar's precedent that was to haunt the Roman State going forward, with one ruler after another acting (whether for good or not) without restraint or accountability. While this on one hand enhanced the tyrant's power, it also created a certain amount of "blow back" mainly by undermining the legitimacy of his reign. How different history might have been had Caesar (at least the one 'trying to do good things') had found a more acceptable means of adapting core principles to changed circumstances.

As Patrick Henry (who would no doubt be called a "liberal" today) might have put it: may George Bush profit from this example.
1.8.2006 3:51pm
Andrew Hyman (mail) (www):
Medis, I really don't think that the UCMJ example serves your argument well. You say: "The UCMJ and its predecessor, the Articles of War, have never been discretionary before." But that's not quite so. The UCMJ embraces vast prsecutorial discretion, and that's only the tip of the iceberg. According to the Constitution, the UCMJ cannot override the President's pardon power, which is potentially the greatest discretionary power the President has.

But, again, I emphasize that today there is nothing in the UCMJ that is inconsistent with the fundamental incidents of warfare, there is nothing today in the UCMJ that would prevent the President from using all necessary and appropriate force against Al Qaeda, and there is thus nothing in the AUMF that arguably overrides the UCMJ.
1.8.2006 4:17pm
Andrew Hyman (mail) (www):
prosecutorial
1.8.2006 4:20pm
jukeboxgrad (mail):
Medis,

"I find it amazing that some people really seem to think we live in greater jeopardy as a nation today then we did in the Revolutionary War."

Agreed. This knee-jerk willingness to flush the law down the toilet is a sign of weakness, not a sign of strength. It's a pathetic irony that we're pretending to teach other people what the word democracy means.

"a recent poll suggests 56% of the American public supports a warrant requirement for international calls and emails"

Here's the poll I'd like to see. "Do you agree or disagree with the following statement: a president should have the power to secretly break laws, as long as he claims he's doing so for the purpose of protecting our national security."
---
JaO,

"I am actually becoming frightened by the assertion of unlilateral power across the board."

I wonder if you've seen this Weekly Standard piece by Mansfield: "the rule of law is not enough to run a government ... we need both the rule of law and the power to escape it."
---
KMAJ,

"You would have to be assuming I am a regular Powerline reader, which is a false assumption"

In other words, you're willing to do wholesale, unskeptical copying from a source you haven't checked out too carefully.

"I have never seen asterisks used for elipsis"

This point about the nature of your confusion would have been a lot more convincing if you had said it four days ago. Why didn't you? Instead, as Jamesaust has recently pointed out, you did a lot of arm-waving in all sorts of unhelpful directions.

"I also read the contrary opinions in full"

That's good. You can probably tell I do the same thing, since I'm all-too-familiar with Power Line.

Speaking of reading things in full, probably you can see the value of having read the Jackson opinion in full, instead of uncritically grabbing mangled chunks of it from a disreputable blog somewhere.
---
Michael,

"the War on Islamofascism is the first time FISA has been tested during a time of war"

I seem to remember another war back there somewhere, around the time of Bush 41. FISA was in effect. Presumably it was used. I guess it wasn't "tested" in the sense that as far as we know Bush 41 actually followed the law, but I think you mean "tested" in another sense.

"there are known instances in which FISA's 'probable cause' standard prevented the government from getting warrants where common sense made it perfectly clear surveillance was justified"

It's true that maintaining national security in a dictatorship is easier than maintaining national security in a democracy (Bush was right when he said the job would be easier if he was a dictator). In other words, freedom isn't free. Committing to democracy inevitably means accepting a certain degree of danger that could be eliminated if one was willing to trust a king to make all our decisions for us.

If you scare easily, you might prefer a system that relies on the "common sense" of a king, instead a system that relies on law.

"FISA ... has real-world consequences of some moment."

All the more surprising then, that Bush didn't use his Republican congress to substantially modify FISA to meet his needs (outside of what was passed in the Patriot Act, which obviously wasn't enough for him), in recent years.

Then again, ignoring a law is a lot easier than fixing it.
---
DtI,

"basically we're being deluged (or deluded) by a bunch of clones spouting the same propaganda from central repositories of spin."

As I've said, that's how the righy blogosphere operates. Hierarchical, dishonest, deaf.
---
Andrew,

"the UCMJ is in no danger whatsoever"

Really?

"To the extent that FISA is different from the UCMJ in this respect"

Bush seems inclined to toy with both FISA and UCMJ, so it's not clear that he views them as different in the way you view them as different. And it's not clear where AUMF says "it's OK to now toy with laws like FISA but it's not OK to now toy with laws like UCMJ."

As Medis said: "I am frankly baffled by why you think your analytic framework would distinguish FISA and the UCMJ."
---
Jameaust,

Very helpful. Thank you. Allow me to provide a clumsy summary: you should be careful what you wish for (an expansive definition of executive power) because the next executive might be someone you like a whole lot less than this executive.
1.8.2006 4:45pm
Noah Klein (mail):
Andrew:

I'm gonna try to define this term so we have some basis of understanding what we mean. If I am defining it wrong please tell me. The fundamental incidents of war is to conduct oneself in a manner that will most efficiently end in victory. As to point that there is nothing in the UCMJ that is inconsistent with fundamental incidents of war, there are parts of the UCMJ that do not allow the torture of prisoners in U.S. military custody. Some would say that is inconsistent with the fundamental incidents of war, especially in this war. How about the examples that Medis used above about the necessity of a tribunal for capital crimes like espionage? The UCMJ also does not allow the murder of innocent civilians. Some believe that is inconsistent with the fundamental incidents of war. Those examples are off the top of my head. I'm sure I can find more. The treaty against the use of chemical and biological weapons are inconsistent with the fundamental incidents of war. This isn't a law passed by Congress, but it is a treaty which according to the Constitution is supposed to have the same force on the government.

Your argument does not hold water. You say that only laws which help in the conduct of war must be followed. That does not make sense. Laws in society, in law enforcement and in laws in war making that must be followed.

Finally, I do not understand your point with the pardon. The president can also pardon civilian criminals, but that does not mean that he does not have to follow civilian laws.

Noah
1.8.2006 4:49pm
Andrew Hyman (mail) (www):
Jukeboxgrad, regarding whether or not the UCMJ is in any "danger," you linked to a post by Marty Lederman that did not mention the AUMF and therefore didn't say that the UCMJ was in danger from the AUMF. What I mean about the UCMJ not being in danger is that it is not in any danger FROM A PROPER READING OF THE AUMF. Unfortunately, however, the UCMJ may indeed be in danger for other reasons, as Lederman points out.
1.8.2006 5:03pm
Defending the Indefensible:
Andrew:
Anyway, I'm just dropping in to correct the record, and am now dropping out.
Ok.
1.8.2006 5:12pm
Andrew Hyman (mail) (www):
Noah:

You wrote, "If I am defining it wrong please tell me. The fundamental incidents of war is to conduct oneself in a manner that will most efficiently end in victory." I think you're defining it wrong. The term was used extensively in HAMDI et al. v. RUMSFELD, SECRETARY OF DEFENSE, et al. (Decided June 28, 2004), http://laws.findlaw.com/us/000/03-6696.html

We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.


[I]t is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.


The Court did not give a precise definition, but I think tradition has a big role to play in defining what the fundamental incidents of war are. For example, if Adolph Hitler was placing a telephone call to a nazi sympathizer in the US during 1942, the US government could listen in to the conversation without having to get a warrant. Thus, tradition has a lot to do with it. But I'm not aware that the Supreme Court has ever given a precise definition.
Contrary to your comment, I never said that only laws which help in the conduct of war must be followed, and I certainly don't believe that.

Regarding the ability of the President to exercise prosecutorial discretion, and his ability to use the pardon power, of course neither of those things relieve the President of his duty to follow the law, and certainly do not exempt him from impeachment if he violates the law. But nevertheless they do indicate that the UCMJ is not completely inflexible and non-discretionary (which is essentially what Medis argued).
1.8.2006 5:21pm
Andrew Hyman (mail) (www):
Defending the Indefensible:

Yes you are.
1.8.2006 5:25pm
jukeboxgrad (mail):
Andrew,

"you linked to a post by Marty Lederman that did not mention the AUMF and therefore didn't say that the UCMJ was in danger from the AUMF"

True. But in my opinion, that's only because no one has pressured the administration to issue a Moschella letter explaining their basis for toying with UCMJ. I have every reason to imagine that such a letter would closely resemble the letter Moschella wrote regarding FISA.

"What I mean about the UCMJ not being in danger is that it is not in any danger FROM A PROPER READING OF THE AUMF."

I think a number of people (including me) are failing to understand your basis for separating UCMJ and FISA, as far as danger from AUMF is concerned.
1.8.2006 5:42pm
Noah Klein (mail):
Andrew:

I understand the definition now. I believe the court was saying that the detention and other actions by the executive that are natural in a time of war thus overrides any stated law, which would prohibit such activity. Obviously this would include intelligence. Intelligence is natural and fundamental to war. Yet FISA does not prohibit the collection of intelligence in the U.S. It just prescribes a procedure for the conducting of intelligence on U.S persons. Why would that interfer with the fundamental incidents of war?

With regards to discretion, that is not the case. A prosecutor can choose not to prosecute and a law and a president can choose to pardon a person who violates the law, but neither a president nor a prosecutor has discretion over whether to apply the law to their activities.

Andrew, you forget that FISA did not exist in 1942, because at that time a long list of presidents had not violated the privacy of U.S. citizens. But if it did exist then the president needs to follow the law. I do not understand why you think that he can follow one law if it is fundamental to war, but not another which is also fundamental to war.

Noah
1.8.2006 5:55pm
Medis:
Andrew,

Of course I didn't say there was nothing like prosecutorial discretion UNDER the UCMJ. But the UCMJ specifically ALLOWS such discretion--that doesn't make following the UCMJ ITSELF discretionary. And FISA allows the same sort of discretion, of course--eg, the President gets to decide which communications he wants to surveil.

But the UCMJ also provides for all sorts of procedures military prosecutors have to follow, and these are NOT discretionary--eg, the procedures for trying those accused of espionage. Again, that is just like FISA: it provides procedures the government has to follow if it wants to conduct certain forms of surveillance.

But you claim that the very procedures of FISA--the law itself--is now discretionary, meaning that the President not only has the discretion to use the procedures in FISA as he sees fit (the equivalent of prosecutorial discretion), but also the discretion to stop following the FISA procedures AT ALL. And the equivalent would be that the President could now stop following the procedures for trying those accused of espionage, as provided by the UCMJ.

On two larger points: First, you keep asserting the procedures in the UCMJ don't hamper the President's ability to use all necessary and appropriate force, but the procedures in FISA do. As far as I can tell, that is pure ipse dixit. Moreover, the President clearly does not share your view.

Second, you claim that the UCMJ is not undermined in the same way as FISA because only the former involves the fundamental incidents of war. I'm frankly baffled by that claim--doesn't FISA also involve one of the fundamental incidents of war, namely foreign intelligence?

Frankly, I can't make any sense of what you are saying. Congress clearly intended both the UCMJ and FISA to apply to the military, including during times of war. The UCMJ is more comprehensive in scope and FISA is more specific, but FISA is specifically about gathering intelligence to help protect the United States from attacks. So if you honestly think Congress intended to let the President bypass FISA if he (perhaps with the agreement of a court) thought it was necessary and appropriate to make up his own rules, then I don't see why the same logic does not apply to every other procedure impacting the President's use of the armed forces, including the procedures in the UCMJ.
1.8.2006 6:02pm
Just an Observer:
Andrew: "The Court did not give a precise definition, but I think tradition has a big role to play in defining what the fundamental incidents of war are. For example, if Adolph Hitler was placing a telephone call to a nazi sympathizer in the US during 1942, the US government could listen in to the conversation without having to get a warrant. Thus, tradition has a lot to do with it. But I'm not aware that the Supreme Court has ever given a precise definition...."

Your hypothetical of what "tradition" says must be informed by what the statutory framework was or is at the time.

The same Hamdi precedent you cite also said:

... 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. ...


And of course, under Youngstown, it matters fundamentally if Congress has legislated in the area, and whether the executive's action is in harmony with what Congress did.

In your historical hypothetical of Hitler calling a sympathizer in the United States, Congress had deferred to the President in the field of foreign-intelligence surveillance. Congress really did not enter that field until it passed FISA in 1978.

If FISA had been in place during WWII, and the wiretap had been on Hitler's phone in Germany, no warrant would have been required. But if the intercept was acquired in the United States, and the sympathizer was a citizen, that would have required a FISA warrant.
1.8.2006 6:08pm
Andrew Hyman (mail) (www):
Medis,

It's not that I love to see myself being quoted, but perhaps it would be a good idea for you to use quotes if you're going to make statements like: "I can't make any sense of what you are saying." How am I supposed to know which remark of mine you're misinterpreting?

My opinion of the UCMJ, FISA, and the fundamental incidents of war is that the UCMJ (as presently written) doesn't interfere with the executive engaging in the fundamental incidents of war, whereas FISA does interfere. Hence, FISA is partially overridden by the AUMF, in the limited context of Al Qaeda. What's to be baffled about?
1.8.2006 7:35pm
Defending the Indefensible:
Andrew,

"My opinion of the UCMJ, FISA, and the fundamental incidents of war is that the UCMJ (as presently written) doesn't interfere with the executive engaging in the fundamental incidents of war, whereas FISA does interfere." In whose discretion? If, in the executive's discretion, the UCMJ interferes with the "fundamental incidents of war" can't he similarly claim that the AUMF overrides it?
1.8.2006 8:39pm
Andrew Hyman (mail) (www):
Defending the Indefensible said:

If, in the executive's discretion, the UCMJ interferes with the "fundamental incidents of war" can't he similarly claim that the AUMF overrides it?


He could certainly try. Then the matter would go to the Supreme Court, and the Supreme Court would presumably say that he's out of his mind, that the UCMJ does not prevent him from using all necessary and appropriate force against Al Qaeda, and the UCMJ does not prevent him from doing the kinds of things that Presidents have historically and traditionally been able to do during wars.
1.8.2006 9:10pm
jukeboxgrad (mail):
Andrew,

"He could certainly try. Then the matter would go to the Supreme Court"

But he has indeed toyed with UCMJ (as far as I can tell), and the matter has not gone to the Supreme Court.

This is getting circular, but you still haven't explained why UCMJ and FISA should not be considered interchangeable, with regard to the various statements you're making, including your most recent statement.

"the UCMJ does not prevent him from doing the kinds of things that Presidents have historically and traditionally been able to do during wars."

This what Bush seems to be saying: Don't you know there has never been a war like this? Don't you know that 9/11 changed everything? Don't you realize that we can't expect the president to limit himself to what "Presidents have historically and traditionally been able to do during wars?" We need new tools now, like waterboarding, and indefinite detentions in Romanian dungeons, and secret wiretaps of Americans.

Do you want a president who respects quaint items such as UCMJ (and FISA), or a president who keeps us safe?
1.8.2006 10:30pm
Medis:
Andrew,

The line you quote appeared at the end of a longer post. I was clearly referring back in part to what I had discussed previously in that post. Moreover, I was clearly expressing puzzlement at your ongoing distinction between FISA and the UCMJ.

Again, your repeated claim that the procedures in the UCMJ clearly do not "prevent [the President] from using all necessary and appropriate force against Al Qaeda", but somehow the procedures in FISA clearly do, is just ipse dixit.

Moreover, as I have pointed out before, the UCMJ has been changed many times, and is constantly evolving. So where does your claim that the procedures in the UCMJ are in a better position "historically and traditionally" come from? Are the UCMJ procedures which were enacted more recently than the FISA procedures in a better "historical" position than FISA?

To give you a specific example, in 2002, the UCMJ was changed to require 12-member juries for capital cases. This requirement is found in a new Article, Article 25a. Is the 12-member capital jury requirement in Article 25a in a better position historically and traditionally than the warrant requirements in FISA? How can that possibly be?

And do you really think Congress intended to let the courts make that decision?

Indeed, I am frankly shocked that you are so sanguine about what you think Congress did with the 2001 AUMF. I have seen things you have written about courts in the past, and I find it very surprising that you are so willing to accept that Congress left it to the courts to decide whether or not the President was using necessary and appropriate force whenever he nullified a law and replaced it with his own procedures. The idea that Congress would delegate its policy- and lawmaking role to the courts in that fashion is an affront to our constitutional structure.

In any event, this is ultimately a matter of congressional intent. And although you apparently think you can divine this sweeping intent from the provision, "Nothing in this resolution supercedes any requirement of the War Powers Resolution," I am comforted by the fact that no one else seems prepared to make such a leap.
1.8.2006 10:39pm
Andrew Hyman (mail) (www):
Medis and Jukeboxgrad:

You guys absolutely boggle my mind. If you'd like to read a bit about how FISA makes adequate surveillance IMPOSSIBLE, take a look at Power Line today.

For all communications between a foreign enemy and their US agents, FISA raises the bar for surveillance from reaonsable cause to probable cause. On top of that, imposes impossible bureaucratic requirements that necessarily limit the amount of surveaillance that can possibly be performed with limited executive branch resources. It cripples US intelligence-gathering to a degree that renders the US President much less capable of defending the country than pre-FISA presidents. You guys may think it's fine to let Adolph Hitler or Osama Bin Laden or their minions telephone the United States to their hearts' delight, but I dare say that the majority of our citizens would disagree with you.

The general in charge of this program (Hayden) says that thounsands of lives have been saved by the program, that would not have been saved by complying with all of the FISA procedures. If Hayden turns out to be correct, then it amazes me that you think what Hayden did wasn't "necessary and appropriate." I can understand your concern for civil liberties, and I'm concerned too, but I do believe that we can have both civil liberties plus security plus adequate controls on an NSA program like this.

Medis, how in the name of Great Caesar's Ghost does having 12-member capital juries instead of 6-member capital juries make it impossible to use "all necessary and appropriate force" against Al Qaeda? Obviously, the answer is that it won't, and any judge in his right mind would so hold. Having 12-member capital juries may or may not be a new practice, but it certainly does not disable the President from engaging in the fundamental incidents of war, much less prevent the president from using all necessary and appropriate force against Al Qaeda.

Congress can revise or cancel the 2001 AUMF any time it pleases. I'm not advocating a judicial oligarchy here.
1.9.2006 6:28am
Just an Observer:
Andrew:

For all communications between a foreign enemy and their US agents, FISA raises the bar for surveillance from reaonsable cause to probable cause. On top of that, imposes impossible bureaucratic requirements that necessarily limit the amount of surveaillance that can possibly be performed with limited executive branch resources. It cripples US intelligence-gathering to a degree that renders the US President much less capable of defending the country than pre-FISA presidents. You guys may think it's fine to let Adolph Hitler or Osama Bin Laden or their minions telephone the United States to their hearts' delight, but I dare say that the majority of our citizens would disagree with you.


Your arguments here, and those advanced in the PowerLine article you cite, relate to the merits of what you believe the law ought to be. Surely this is a fundamentally different issue from the question of what the law actually is.

Knowing your work as a constitutional originalist, I assume you do not mean to imply that the President is able to ignore laws because he thinks they ought to be changed. So I honestly don't know what you do mean.

I will point out again here that:

1) FISA specifically gives the President a 15-day grace period at the outset of a declared war in which to conduct warrentless surveillance.

2) With or without such a grace period, the President is free to propose changes in the law, and the Congress is free to enact them, at any time.

3) In fact, the President and Congress did enact several amendments to FISA in the USA-PATRIOT Act. Expanded authority for warrentless surveillance such as the NSA program involves was not included in these amendments. Attorney General Gonzales, in fact, indicated Dec. 19 that the administration did not seek such an amendment in part because it did not think Congress would support it.

I have not been part of your discussion here about the UCMJ issue, but your generalized statement above causes me to point out that you never have answered my objections to your repeated Hitler hypothetical, which objections have noted out that if FISA had been the law in 1942, the President would have been bound by it.
1.9.2006 10:01am
Medis:
Andrew,

You say: "If you'd like to read a bit about how FISA makes adequate surveillance IMPOSSIBLE, take a look at Power Line today."

The Powerline post raises two issues. The first is the bureaucratic burdens imposed by the 72-hout time limit for emergency orders. Although you describe these as "impossible bureaucratic requirements," that is, of course, a gross exaggeration.

Indeed, even the Powerline post does not go that far. They write: "Anyone who thinks that it is easy for multiple lawyers and officials to collaborate on a set of documents, present them to a federal judge and have the judge sign the order within 72 hours has, I'm afraid, no experience whatever at obtaining orders from federal judges."

But "not easy" is not the same thing as "impossible". Indeed, anyone who has participated in preparing court filings on short notice also knows that this sort of thing IS possible, even if it is also difficult. The real issue becomes one of resources, because you need to dedicate more resources to such tasks when there is a time limit--eg, having sizable teams of lawyers on call for dealing with such emergency filings.

So, this is a tradeoff between resource costs and how long the government can conduct electronic surveillance without judicial review. It could have been less time--say 48, or 24, hours--in which case it would take even more dedicated resources to comply with the time limit. It could also have been more time--96 hours, or a week, or 10 days--in which case it would take less dedicated resources to comply with the time limit. But Congress settled on 72 hours, and the mere fact that there is some cost to their decision does not mean that they somehow ignored that cost. Indeed, they manifestly thought that was the point at which the costs had diminished to an acceptable level, in light of the countervailing interest in providing timely judicial review.

None of which rules out the possibility that Congress made a mistake, or that what once was a good balance is no longer so good. But the correct remedy for such problems is for the President to go to Congress and ask for a change, not for the President to bypass Congress and make up his own procedures.

The second issue is whether "probable cause" is too high of a standard. Again, not even Powerline goes so far as to claim that this makes electronic surveillance impossible. Instead, they argue that this result is not "optimal", because it would be "most effective" if the government could start surveillance under a lower standard.

As it should be needless to say, this is another balancing issue. Without belaboring the point, the spectrum of possible standards of review (reasonable cause, probable cause, clear and convincing evidence, proof beyond a reasonable doubt) represents a shifting tradeoff between governmental effectiveness on the one hand and countervailing individual and societal interests on the other (eg, avoiding erroneous invasions of privacy, abuses of surveillance power, and so on).

So, once again, this is a policy issue which requires a balancing between competing values. And by choosing "probable cause" (neither the most nor the least exacting standard) Congress has manifestly determined that such a standard achieves the correct balance.

Incidentally, insofar as Congress would need to follow up the 2001 AUMF with a "clarification" that FISA was still binding, they already did so--that would be the USA-PATRIOT Act.

And that is what baffles me, Andrew. Having read some of what you have written in the past, I would have thought that you would want Congress, not the courts, determining the correct balancing of these countervailing interests. So, I would have thought the idea that Congress intended the President to cooperate with the courts in deciding these issues, and not with Congress, would be something to which you would strenuously object.

On the 2002 UCMJ amendments: My point, Andrew, was simply that FISA is not in a worse position "historically" or "traditionally" than the UCMJ, if by that you mean that the UCMJ has been around longer than FISA. And that is because like FISA, the UCMJ is an evolving law.

And indeed, I note that you switch back from talking about history and tradition to talking about policy in response to this point. Once again, my essential point is that it would be extraordinary if Congress actually intended through the 2001 AUMF to cede its policy-making role in war to the courts, and indeed the USA-PATRIOT Act makes it clear that they had no such intention.
1.9.2006 10:09am
Just an Observer:
Medis,

As a policy issue distinct from evaluating legality of the the NSA surveillance, I have wondered if it might be better policy to adopt a lower standard than "probable cause." I then hit the problem that such phrase is hard-wired into the Fourth Amendment with respect to warrants. Of course, it may be possible in some circumstance for a search to be reasonable if it does not involve a warrant.

I will note that, although we often use the word FISA "warrant" for shorthand, the FISA statute does not call it that. It is referred to as "an order approving electronic surveillance."

So as a policy matter, it would be interesting to see if it would be constitutionally permissible to adopt a lower standard for such court orders in an amended FISA. Not a simple question.

Outside of such a policy excercise, the law is what it is.
1.9.2006 10:26am
Medis:
JaO,

Indeed, the Fourth Amendment clearly takes a policy stance of some sort, and both the President and Congress obviously must operate in the shadow of the Fourth Amendment. As an aside, I suspect Andrew would not be too fond of the idea that the courts should be actively enforcing their personal notions of "reasonable" surveillance while citing the Fourth Amendment as their authority--which, again, is why I find it surprising that he is so willing to interpret the 2001 AUMF as giving such a role to the courts.

In any event, I have rarely commented on the Fourth Amendment issues. Partially that is because I think the statutory issues need to be resolved before we get into the Fourth Amendment issues. But also, I frankly find the structure of the Fourth Amendment very confusing--specifically, the interplay between the reasonableness clause and the warrant clause. There is, of course, an extensive literature about this issue (and I only have a glancing familiarity with it), but it seems to me that whenever a new Fourth Amendment issue arises, it is very difficult to predict which searches exactly will end up requiring a warrant.

Nonetheless, trying to avoid creating unconstitutional procedures is undoubtedly a legitimate policy concern as well. So, insofar as Congress avoiding calling these court orders warrants, but nonetheless required probable cause (of some sort, even if not of the criminal sort), we could see them as taking a multi-prong approach to avoiding such problems. Again, I would suggest that such policy-making is precisely what Congress can and should be doing.
1.9.2006 10:44am
Bruce Hayden (mail) (www):
So, let's take the example used by Powerline. The CIA gets their hands on a cell phone when capturing a terrorist in Iraq or Afganistan. They look at the call history and start monitoring all calls to and from the numbers in the call history, and, maybe, the phone book, on the captured phone. But they only have a short time for this to be effective - within a day or two, the information is going to be stale, since the capture will by then often be known.

So, is there probable cause to believe that all the numbers in the call history belong to agents of a foreign power (notably, Al Qaeda here)? I would suggest not. The calls could just as easily be to/from their wife (or wives), children, butcher, etc. At this point, all they know is that this is a contact. Most often, little more (rarely are they identified as, for example, Osama Ben Laden).

This is, of course, a non-issue, as long as none of the numbers is that of someone in the U.S. But if it is, then FISA presumably intervenes. And to develop probable cause, the FBI would need to be dispatched to develop it w/o utilizing any electronic surveilance. And that, of course, doesn't happen over night.

But then, what happens if one of the people on the call list outside this country calls someone in the U.S.? Showing probable cause is even more questionable. What makes things worse is that they may not even know (yet) who owns that phone, where it is, who has it, etc. And how can they show probable cause without that information - which takes time to develop.

The problem, as I see it, is that at this point, when the CIA (and NSA) are trying to roll up a terrorist network, they have most likely hours, or at best, days, to do it. The time that it takes to wake up the AG in the middle of the night, and then have him wake up a FISC judge, also in the middle of the night (remember, that is in the middle of the afternoon in Iraq), is time lost. Time in which a critical call may come through. After that, the information will be stale.

If you read the in-depth coverage of what is happening esp. in Iraq right now, these subnetwork rollups happen on a routine basis, but are almost always done at a hectic pace. On the ground, they race from location to location (with the Iraqis sometimes leaving the U.S. troops in the dust in their much slower, armored, Humvees), with each location supplying leads to the next locations. They are racing the knowledge that soon leaks out that the subnetwork has been compromised. And when that information catches up, the leads go dead.
1.9.2006 11:22am
Bruce Hayden (mail) (www):
The other thing that bothers me a bit is the assumption that the 72 hours can solve all the problems encountered. Let us assume that OBL calls Mohammed Jones in the U.S. This is detected most likely through random voice recognition being done on large numbers of calls being monitored for very short periods of time.

So, the call comes in, and the voice recognition automatically triggers a recording. The assumption seems to be that this recording is usable if the AG gets a surveilance warrant w/i 72 hours.

But is it? As I read it, the statute calls for all surveilance between the time that the AG authorizes it, and a FISC court agrees (as long as that is under 72 hours) is usable. But I don't see anything in the statute that would allow that automatically recorded conversation to be utilized - because it happened BEFORE the AG's authorization.

Powerline has the relevant statute quoted (50 U.S.C. Sec. 1805(f)). But I would appreciate it if someone who believes that this 72 hour emergency provision would be available for that automatically recorded conversation, would please show me where I went wrong in my reading of the statute.
1.9.2006 11:40am
Medis:
Bruce,

As an aside, I will note we are now getting into a policy discussion, not a legal discussion.

Anyway, unfortunately, it is very difficult to assess your hypothetical because of our lack of knowledge.

Indeed, presumably the FISC has internal precedents about what constitutes probable cause within the meaning of FISA, but since the proceedings of the FISC are secret, we don't know what those precedents say. Notably, this is all going to be different than probable cause in normal criminal investigations (since we are talking about different things for which the government needs probable cause). So, we don't really know what the FISC has done or would do with something like your cell phone capture scenario.

I would note a few things, however. First, the mere fact that a contact on an Al Qaeda agent's cell phone might not be an agent of Al Qaeda does not per defeat "probable" cause. And that is because "probable" cause does not, of course, require certainty, so it doesn't require the elimination of all other possibilities.

Second, the surrounding facts relevant to the cell phone might help establish probable cause. For example, suppose that Al Qaeda agents had made a practice of using certain cell phones for their clandestine activities, keeping them separate from phones they used for their overt legal activities. In that case, being a contact on on one of the clandestine phones could be enough on its own to establish probable cause.

Third, the mere fact that a contact was in the U.S. could itself be relevant evidence. Indeed, in such a case it will be unlikely that the contact is someone like their butcher. In addition, insofar as it is possible that the U.S. contact is someone like a relative in the U.S., or a U.S. hotel, or so on, it may be possible to quickly check and eliminate or at least reduce many of these possibilities (eg, hotels don't have unlisted numbers). And again, probable cause does not require certainty or the elimination of all other possibilities.

Fourth, we do not actually know what the government is capable of doing quickly once they are given a phone number. For example, they may be able to get a lot of information about the people associated with any given number just using various computer searches, previously compiled databases, and so on.

All of which is not to say that there is going to be no marginal effectiveness cost at all to something like a probable cause requirement--that is practically inevitable. But the policy question is whether that marginal effectiveness cost is or is not outweighed by countervailing interests (eg, erroneous invasions of privacy and abuses of this power). So, the mere fact that in some conceivable scenario the government could not move as fast as we would ideally like does not imply that we have struck the wrong balance overall.
1.9.2006 11:52am
Medis:
Bruce,

On your second post: I am not sure I understand your setup. If we are, for example, monitoring all voice communications in the United States, looking for OBL's voice, then that might be illegal under FISA to begin with. But if we did capture this call in some way which was legal, then FISA does not automatically prevent using that information, even though it was done without a warrant.

Again, your point might be that such computer-based warrantless surveillance in the US should be legal. But that is also a policy issue that requires careful balancing of interests.
1.9.2006 12:00pm
Mary Katherine Day-Petrano (mail):
Defending the Indefensible --

You said:

"I have no intent to mock you, nor to minimize any trauma you have been subjected to. With respect and sincere concern, what is at issue in the NSA surveillance controversy is not the sexual molestation of juveniles."

I said: "Oh, to the contrary, I can prove it is. My father worked for IBM on NSA's ECHELON and domestic surveillance system, and he drugged me to commite sexual molestation and abuse on me at ages 14-17, and IBM hired his attorneys to protect him, and he shared national security secrets with me about NSAs programs, and he told me and my mother he was protected due to his position as essential to national security and could get away with what he did. Hence, one can readily conlude that the NSA domestic surveillance program uses even those means to justify the eends of surveilling US citizens on US soil who bring ADA civil rights lcaims to remedy a longstanding wrng involving a person who used his national security position to commit the wrongs. If you don't believe me about the Quaalude corroboration, check the criminal and arrest databases for early 1970's, drug arrest in Stamford, Conn., NY-Conn. prosecution, Kenneth Gordon Day."

You tried to infer I misinterpreted you by taking the final paragrah of my post out of context. The above demonstates I did not misinterpret you, only refuted the point you were attempting to make absent the facts. However, I do agree with your point "nor do I even believe the administration has the 'national security' right 'to spy on every American'"

And this brings us back to the point of why the Administration (and Supreme Court with the initial denial of Docket N0.05-7287) would protect an NSA national security architect who drug-enhanced sexually abused his daughter -- See, Bruce Hayden's reintroduction into this discussion about the voice-recognition technology. Left with traumatic brain injury by the deviant NSA architect, I have to use this technology as a disability assistive device, which the Administration's program directly attacked before and from Aug. 2005-Dec. 29, 2005 by viruses to prevent my ability to amend my petition to prevent Supreme Court review in my cases.

As I recall, it was my series of previous postings about how voice-recognition is not far enough along in the technological sense to prevent numerous errors from occurring -- such as shadow background noise which is then matched against the voice-recognition dictionary to come up with a word or words the person never said, not being able to differentiate different voice pitches, voice patterns, language accents and dialects, etc., that makes it error-prone and unreliable in terms of detecting and labelling people and the content of their conversations "terrorist threats" and black listing them thus erroenously in NSA, DOD, and FBI data bases.

Following that, I posted about The Vessel Mistress surveillance platform, recklessly tied to endanger the lives of my husband and myself during the pendency of my cases Dockets No. 05-7287 &05-7771 (obviously if the parties are killed off, the cases will stop), for which an admitted confessed perjurer was the only witness brought forth by the vessel in defense of our vessel arrest in admiralty, indicating the NSA surveillance was involved in significant, deadly interference with my cases -- and

suddenly, following the voice-recognition and Vessel Mistress posts, Volokh suffered a "hardware failure" and went offline for appx. 1 1/2 days, and when it came back online, appx. 150-200 posts were gone, including all of mine about the voice-recognition problem, the Vessel Mistress surveillance platform, and even other posts from days before in other threads. Then I became the subject of a new thread to discredit the facts at issue in my cases by implying I am jumping to unsupported conclusions about NSA surveillance and use of force abuse against me and my family to stop my cases. I do not fault Volokh for this, but rather continue to suspect a Patriot intervention upon Volokh by the Administration. Similar, as everyone will recall, to how the news reporters were censored from reporting the Katrina news as soon as the Administration's military Hurricane relief moved into New Orleans. Orweillian ... yes, no one seems to be disputing this.

My only question now is to what lengths will the Administration go to censor public opinion that would go against the NSA surveillance program if free expression were allowed and revealed the above facts.

It is obvious this is a matter that must be taken up with Congress, and perhaps it is central to why the Alito nomination and any other nominations to the Supreme Court of candidates who would expand executive Power should be turned down until there is some accountability to ordinary Americans for governmental abuse -- at this juncture, the message is loud and clear: The Administration will protect even deviant drug enhanced childhood sexual abusers who cause traumatic brain injury to their children all in the name of NSAs national security surveillance of US citizens on US soil -- and no remedy will be provided for this by anyone anywhere.

If this can happen to me, a nobody, it can happen to any American. Today it is me and my family -- tomorrow is is any one of you and your families.

And, the fact there is no remedy from the Administration or the Supreme Court does not make the issue go away. Congress still has the power to rein in the Administration, to define lower federal court jurisdiction, and most importantly, to reform the Rules Enabling Acts that authorize the Supreme Court's authority to promulgate all rules of procedure in the federal courts and Supreme Court itself.

A Republican Congress justifying its mantle on the notion of theocracy that promotes allowing NSA surveillance and use of force program against US citizens on US soil to protect an NSA architect of drug-enhanced childhood sexual abuse who caused traumatic brain injury to his victim -- well, I would wager that Republican party in the next elections will be swept out of office in favor of voters' prefering to see if the Democrats can bring any justice to all American victims of the Administration's deviant program.

I think many of us are not too far apart regarding the conclusion the Administration's program must be stopped, but instead disagree regarding how to reach that conclusion.
1.9.2006 12:39pm
Mary Katherine Day-Petrano (mail):
Interestingly, this thread "NSA Chief on Legal Issues" has the comments enabling ability unavailable after 83 comments posted.

Kazinski posted there "But I will admit I don;t even know that, and neither does anyone else opining here," which is refuted here, above.

Medis pointed out, "But nothing Alexander said contradicts what Gonzales said, or what the Moschella Letter said." General Hayden, however, contradicted Alexander by indicating NSAs program may not be legal, and that private contractors may have been able to get shift supervisors to signoff. Doesn't General Hayden outrank Alexander? And why are there two different versions of legality coming out of NSA?

Incredibly, everytime people express disbelief in the Administration's position, the thread commments or even huge numbers of posts get cut off.
1.9.2006 2:10pm
Mary Katherine Day-Petrano (mail):
Here is another very interesting thing about my cases, Dockets No. 05-7287 &05-7771, the President's Florida election lawyer, Barry Richards of Greebberg Traurig has taken on the representation of the California and Florida respondents who seek to deny my bar admission in California and Florida based upon my father, NSAs IBM architect of the electronic domestic surveillance system, who drug enhanced committed childhood sexual abuse on me and bashed my head causing traumatic brain injury. At the same time, Greenberg Traurig had in its employ former legal counsel for IBM, and the President's head of military tribunals still with the firm but on leave.

Today's NYT reported an article on Greenberg Traurig and the Abramoff case, now distancing itself from Abramoff, See, Glater &Kornblut, Lobbyist's Firm Escapes Fallout From A Scandal, NYT, Jan. 09, 2006. I am not suggesting there is any nexus between Abramoff and my cases; however, Greenberg Traurig continues to find itself in the middle of national controveries.

The article states, "Prosecutors have given no indication that they are investigating Greenberg Traurig, and the firm has been credited for cooperating with the investigation."

Maybe this lawfirm shold be investigated, and across more than one case, including ints involvement in the NSA issues at the heart of mine.
1.9.2006 2:59pm
Mary Katherine Day-Petrano (mail):
One would think instead of opposing my cases seeking the simple remedies of my bar admission in two states and restoration of my driver's licenses, the DOJ would open an ADA action and compel those licenses to be restored to me, allow me to move on in my life, and within their own parameters of national security investigate and resolve those issues raised by my cases separately.

I always wondered why the President's election lawyer, Barry Richards and Greenberg Traurig, were assigned to represent the two state's bars, especially California who directly denied my bar admission based on my father's drug-enhanced childhood sexual abuse and never gave me any final order enabling me to obtain review. It is beyond me how any lawyer can advocate the injustice of this position.

I guess it was hoped I would just eventually die off due to my disabilities, like tobacco plaintiffs, and these issues would go away.

If my petition for cert was denied in Docket No. 05-7287, and Justice Scalia's son works for Greenberg Traurig, as does IBMs former legal counsel, would Justice Scalia have had to disqualify? (Actually, I always admired Justice Scalia, but I am horrified at the array of governmental power against me in my cases and do not understand why there is no remedy for the injustices).

No remedy for 16 years.
1.9.2006 3:40pm
Just an Observer:
This development may get more prominent play elsewhere on this blog. But for now the current thread is the best place to note this open letter challenging the legality of the NSA surveillance.
1.9.2006 10:46pm
jukeboxgrad (mail):
Andrew,

"You guys absolutely boggle my mind. If you'd like to read a bit about how FISA makes adequate surveillance IMPOSSIBLE, take a look at Power Line today."

You absolutely boggle my mind. If you'd like to read a bit about how the Power Line article you cited is composed of foolishness and outright dishonesty, take a look at this.

"I do believe that we can have both civil liberties plus security plus adequate controls on an NSA program like this"

That sort of balancing is supposed to be achieved in our society via a quaint process known as "making laws." Why in this instance, is that process suddenly considered dispensable?

Bruce,

"The assumption seems to be that this recording is usable if the AG gets a surveilance warrant w/i 72 hours."

No. You'll believe this if you read Power Line instead of reading the statute. I explain this here.

"I don't see anything in the statute that would allow that automatically recorded conversation to be utilized - because it happened BEFORE the AG's authorization."

That's a separate issue.

Just to be clear about the two different issues. Power Line claims that if a judge doesn't say yes within 72 hours, you have to throw the tape away. That's not what the statute says.

However, it's true that the statute says you mustn't start taping until the AG says go. So to the extent that we're doing the automatic recording and voice recognition you're talking about, it seems to me that's a gray area where the statute needs updating.

But that's no excuse for Power Line to mislead people, and it appears that both you and Andrew have been misled.
1.9.2006 11:23pm
Medis:
JaO,

It is interesting, but not surprising, that the Open Letter and the CRS memo essentially contain the same reasoning (although I thought the Open Letter's discussion of the Fourth Amendment was quite useful). Our group efforts here at Volokh have pretty much brought out the same basic argument as well. That doesn't necessarily prove this argument is correct, but it does suggest that there must be some objective basis to this argument.

Incidentally, I am always amused by touches like "Affiliations are noted for identification purposes only." Yeah, right. Anyway, it is a pretty heavy-hitting list of signatories (at least if my "identifications" are correct).
1.9.2006 11:42pm
Bruce Hayden (mail) (www):
jukeboxgrad

I do tend to agree that there doesn't appear to be a requirement that electronic surveilance during the 72 hour period when a warrant does not ultimately issue be destroyed. However, it does appear that the U.S. Person so surveiled should be notified of the surveilance (see 50 USC 1806 (j) - though that section refers to 1805(e) and not (f), as it appears it should.

The destruction provision appears to be 50 USC 1806(i), and only appears to apply if the acquitision was unintentional, and all parties to it are located in the U.S. (note though, that this is broader than if it were limited to U.S. Persons). In any case, the acquisition pursuant to a 72 hour order is clearly intentional, so this shouldn't apply.
1.10.2006 1:07am
Bruce Hayden (mail) (www):
jukeboxgrad

I will admit to having read the Powerline article. But I had (now I believe mistakenly) come to the same conclusion they had independently (and a couple of days earlier). So, I can't use them as my excuse - but rather misread the statute all on my own, and only went back and reread it more carefully when you objected.

Medis:
On your second post: I am not sure I understand your setup. If we are, for example, monitoring all voice communications in the United States, looking for OBL's voice, then that might be illegal under FISA to begin with. But if we did capture this call in some way which was legal, then FISA does not automatically prevent using that information, even though it was done without a warrant.
I think that this all may be connected with ECHELON. But I don't see the administration claiming the right to monitor all voice communications in the United States, but rather, just incoming and outgoing calls to the U.S., as well as the traditional monitoring of foreign calls.

And I don't think the program actually listens to all such calls, but rather, as I understand it, a number (maybe a couple of thousand) calls will be sampled at one time, and then another batch say 20 seconds later. Only when something sets off a trigger is a conversation actually recorded. The trigger is presumably either voice recognition or phone number recognition - though the later probably doesn't require sampling, but rather, I suspect, all calls to/from specified targetted phone numbers are triggered for recording.

I don't know where I read about this, but remember doing so a week or so ago. It could have been the ECHELON law review article I read recently (I think it was posted here at volokh,com) - but now I can't find the link to it. So, it could be a figment of my imagination now. However, it does appear to be more consistent with the Administration's stated position here than most others I have seen or heard.

Let me add that I see one problem being that we pretty much have to surveil fiber optic cables at the switches, and the best switches to tap are those right before the cables go overseas. But that means that, contrary to previous technology, the surveiling is probably mostly being done today (at least for fiber optic transmissions) on U.S. soil. The problem is that this brings everything under 50 USC 101(f)(2) instead of (f)(1).

Thus, if an international conversation is via satellite, microwave, or copper cable, it can, and usually is/was, intercepted outside the U.S. As a result, it falls under 1801(f)(1), and is only considered "Electronic Surveilance" if the party targeted is a U.S. Person located in the U.S. But as long as one party is in the U.S. (legally or not) and the call was intercepted in the U.S., then it is considered "Electronic Surveilance" under 1081(f)(2).
All of which is not to say that there is going to be no marginal effectiveness cost at all to something like a probable cause requirement--that is practically inevitable. But the policy question is whether that marginal effectiveness cost is or is not outweighed by countervailing interests (eg, erroneous invasions of privacy and abuses of this power). So, the mere fact that in some conceivable scenario the government could not move as fast as we would ideally like does not imply that we have struck the wrong balance overall.
But that is just it. I am taking the President at his word - because that is really the most definitive statement that I have heard yet, that the issue is tracing external calls from known or suspected foreign terrorists abroad to people here in the U.S. And as I read FISA, and look at the problems with fiber optic survielance, I see the problem that I referenced above.

Yes, there is a possibility that someone here in the U.S. might have their privacy interferred with. And maybe there is a possibility of abuses of power. But I think the answer there is to make sure the two intelligence committees are properly briefed.

I guess the Administration and I strike a different balance than you appear to. I see us at war right now, though technically probably undeclared. And if this can prevent another 9/11, I think that it is well worth the cost.
1.10.2006 2:19am
Medis:
Bruce,

As an aside, both Gonzales and the Moschella letter also said we are monitoring calls from the US (not just calls to the US).

Anyway, you say:

"Yes, there is a possibility that someone here in the U.S. might have their privacy interferred with. And maybe there is a possibility of abuses of power. But I think the answer there is to make sure the two intelligence committees are properly briefed.

I guess the Administration and I strike a different balance than you appear to. I see us at war right now, though technically probably undeclared. And if this can prevent another 9/11, I think that it is well worth the cost."

But that is not how our Constitution works. It contemplates that Congress will not just be "briefed", but will in fact actually make laws about these matters--laws that will be binding even during times of war.

And so the issue is not really where the Administration thinks the balance should be struck--although the President does have the constitutional power to recommend laws to Congress. Rather, it is a matter of where Congress thinks the balance should be struck (at least within the limits of the Fourth Amendment). And, of course, if the President has a legitimate argument for a change in the law, and if enough people like you support the change, and if it is constitutional, then we can expect Congress to make that change.

Of course, if enough people think the Administration's proposal would be striking the wrong balance, then Congress might not go along. Which is appropriate--after all, we are fighting this war for democracy.
1.10.2006 8:39am
Medis:
Incidentally, I should note that I am not necessarily opposed to changing FISA. But I am opposed to the President making his own secret laws to replace the laws actually passed by Congress.
1.10.2006 8:45am
Mary Katherine Day-Petrano (mail):
I don't know how to make links, but the law review article aout ECHELON was: Lawrence D. Sloan, ECHELON and the Legal Restraints on Signals Intelligence: A Need for Reevaluation, 50 Duke L. J. 1467 (2001). A lot of other info comes up on an ECHELON Internet search.
1.10.2006 9:34am
jukeboxgrad (mail):
Medis,

"the Open Letter and the CRS memo"

Speaking of detailed analyses, I wonder if folks have seen this: "Congressional Authorization and the War on Terrorism" (Harvard Law Review, 5/05, pdf). It seems to be a very detailed historical perspective on the AUMF. (I have to admit I only know about this because Power Line mentioned it a while back, very much in passing.)

I imagine there might helpful material in there, but I think I'm not the best person to plow through the 87 pages.
---
Bruce,

"I can't use them as my excuse"

Thanks for that candid admission. Anyone can make a mistake. My hunch is that you made an honest mistake, whereas Power Line is in the business of intentional propaganda. Big difference.

Here's one way to tell the difference: you came clean. They won't.

"I don't see the administration claiming the right to monitor all voice communications in the United States"

What they are "claiming the right" to do is almost certainly not a complete description of what they are actually doing. In other words, I wouldn't be the least bit surprised to discover that they are indeed doing something like snooping on "all voice communications in the United States."

"I suspect, all calls to/from specified targetted phone numbers are triggered for recording"

I suspect the same thing, and I suspect that there isn't much consideration given to distinguishing between international calls as compared with purely domestic calls.

I also think it's reasonable to speculate about how numbers end up on that list. Note that you can apparently end up on a terrorist no-fly list for purely political reasons (link). There's no reason to assume that the monitor-this-number list is managed very differently.

I like this: "a tech buddy said there's no one in government smart enough to write a search algorithm that will find actual terrorists, so they end up with authors of books criticizing the Bush White House."

"we pretty much have to surveil fiber optic cables at the switches, and the best switches to tap are those right before the cables go overseas. But that means that, contrary to previous technology, the surveiling is probably mostly being done today (at least for fiber optic transmissions) on U.S. soil. The problem is that this brings everything under 50 USC 101(f)(2) instead of (f)(1)."

I think your analysis on this point is very helpful and correct. By the way, I am more than slightly technical myself; I think your technical observations are consistently astute and clear.

"satellite ... it falls under 1801(f)(1), and is only considered 'Electronic Surveilance' if the party targeted is a U.S. Person located in the U.S."

Elsewhere I've explained why I think we have enough information to believe that (f)(1) is also being violated (i.e., I think it's sufficiently clear that part of what we're doing is intentionally targeting known US persons).

"the issue is tracing external calls from known or suspected foreign terrorists abroad to people here in the U.S."

Gonzales made it clear that it goes in both directions, not just with regard to who put the dime in the phone, but with regard to where the "terrorist" is located (those are two separate issues which are often blurred together). Gonzales made it clear the "terrorist" might be the US person (who is talking with someone overseas who is not necessarily identified as a "terrorist," at least not yet). This is widely glossed-over.

"I think the answer there is to make sure the two intelligence committees are properly briefed."

Finding selected congressional accomplices who are willing to look the other way while you break the law is not an alibi.
1.10.2006 11:43am
srg (mail):
Medis,

In a separate section you answered very accurately my question about the Truong case.

Would you please also deal with the 2002 FISC case which referred to Truong and seemed to imply a government right not to be interfered with in obtaining foreign intelligence. Many thanks.
1.13.2006 11:58am