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NSA Chief on Legal Issues:
Via Reuters:
  The head of the National Security Agency told employees last month that NSA officials had not violated U.S. law by participating in an agency program that eavesdrops on U.S. citizens without judicial oversight, newly released documents show.
  "Media coverage surmises that administration and agency officials may have acted unlawfully — notions I reject, categorically!" NSA Director Lt. Gen. Keith Alexander assured agency employees in a December 22 message.
  He acknowledged that Congress may schedule hearings on the domestic spying program, which President George W. Bush authorized in 2002 to eavesdrop on Americans' telephone calls and e-mails without first obtaining warrants.
  "Overall, we are not concerned," the NSA director said. "Our operations are carefully deliberated and measured; they are within the law; and they are nobly executed with strict oversight."
  UPDATE: The message itself is available here, via EPIC. Thanks to Marcia Hofmann for the link.
Noah Klein (mail):
This opinion offered by Lt. Gen. Alexander may be a reason why people like Polaris have supported this position.

Professor Kerr:

Do we have any information from this article has to why the General felt that this program was congruent with law?

Noah
1.8.2006 12:11pm
ron (mail):
now all he has to do is prove it.
1.8.2006 12:54pm
Ross Levatter (mail):
Is there any alternative position the General could, post-Neurenberg, credibly claimed to have believed? One is no longer allowed, after all, to say, "Of course I knew this program I oversaw violated the law and the Constitution, but my superiors told me to do it anyway."
1.8.2006 1:06pm
Roger (mail):
All of it seems quite conclusory, and not really the kind of legal analysis that America needs in a post-9/11 world.
1.8.2006 1:12pm
Fishbane (mail):
All of it seems quite conclusory, and not really the kind of legal analysis that America needs in a post-9/11 world.

Ah, but that's the trick. In a post-9/11 world, all one has to say is "trust the president". We're beyond any silly things like facts and reasoning - that's all partisan chatter than hurts America.
1.8.2006 1:45pm
Dave:
Did anyone else notice that he didn't just reject it categorically, he rejected it "categorically!"

On a more serious note, I think someone (congress?) really needs to start applying Nuremberg-style scrutiny to the highest levels of the executive branch, given everything we now know about torture and lawbreaking. This is getting ridiculous.

Dave
1.8.2006 1:49pm
Charlie (Colorado) (mail):

This opinion offered by Lt. Gen. Alexander may be a reason why people like Polaris have supported this position.


... because, of course, we're mindless automata who couldn't arrive at an independent opinion.
1.8.2006 1:50pm
Mark Brady:
In the immortal words of Ms. Mandy Rice-Davis, "He would say that, wouldn't he?"
1.8.2006 1:53pm
Charlie (Colorado) (mail):

now all he has to do is prove it.


... because, of course, "innocent until proven guilty" only applies during Democrat administrations.
1.8.2006 1:59pm
Medis:
"Nobly"?
1.8.2006 2:05pm
Mark Brady:
Oops! Mandy Rice-Davies. Go here for the context:

1.8.2006 2:06pm
Defending the Indefensible:
Charlie,

because, of course, we're mindless automata

I wouldn't say mindless, but predictable.
1.8.2006 2:06pm
Mark Brady:
Oops (again)! Go here: http://en.wikipedia.org/wiki/Mandy_Rice-Davies
1.8.2006 2:07pm
Medis:
Come to think of it, I guess there is in fact something in the manner of the hereditary aristocracy involved in all this.
1.8.2006 2:10pm
Defending the Indefensible:
Medis:

Well, yes. Some families were just born to rule, you know?
1.8.2006 2:22pm
Kazinski:
Maybe Alexander knows something we don't, like say:


1. The exact details and extent of the surveilence.
2. How this differs from NSA programs in the past.
3. Exactly what Congress and the Chief FISA judge were briefed on.
4. The concerns Comey and then Ashcroft had that caused the program to be suspended and reworked for a couple of months until those concerns where allayed.


This blog and its many comment threads are pretty useful for kicking around the issues and discussing how the law would bear under all the various scenarios. But I hope know one thinks we really have near enough information to actually say one way or another whethere the program is illegal or not. I'm one of those who would say that if the program was monitoring Al Qaeda agents during a time of war it was legal. But I will admit I don;t even know that, and neither does anyone else opining here.
1.8.2006 2:22pm
Defending the Indefensible:
Kazinsky,
Well, this particular thread is rather contentless, we have a plain assertion of legality by a non-lawyer who has criminal liability if the law was violated. So we can safely disregard his opinion as being without weight.
1.8.2006 2:26pm
Medis:
Kaz,

But nothing Alexander said contradicts what Gonzales said, or what the Moschella Letter said.

Incidentally, I saw some quotes from Brownback, who appeared on This Week (I didn't see the actual show). It sounds like he is skeptical about the 2001 AUMF argument. Apparently he said, "There was no discussion in anything that I was around that gave the president a broad surveillance authority with that resolution."
1.8.2006 2:28pm
Medis:
DtI,

And in fact he would also be putting his employees in a terrible position if he said anything less.
1.8.2006 2:29pm
Pooh (www):
Not to draw comparisons, but: "I have always acted in an ethical manner." Of COURSE the guy with his ass furthest in the breeze is going to say it was legal. Doesn't mean it's not true, but not exactly the best evidence that it is.
1.8.2006 2:32pm
Noah Klein (mail):
Charlie:

I was actually thinking that if Polaris is a NSA agent and the NSA director was telling them many times over that what they do is legal. They would probably trust them. Unless you are an NSA agent, I don't know how this affects you at all.


Noah
1.8.2006 2:33pm
Defending the Indefensible:
Noah,

Polaris doesn't even pretend to have been an NSA agent for over five years.
1.8.2006 2:37pm
John Lederer (mail):
So let's see:

Option A trust a Lt. General who is a non-lawyer (but presumably has sought the advice of lawyers) who knows the facts, but might be in a sticky poosition legally (though note the lawyers would have the gov't. as a client, not the General).

Option B. Trust a bunch of largely academic lawyers who don't know the facts.

Option C trust members of Congress who aren't lawyers, have political aims, and might be embarassed poltically

Option D trust the NYT.


May I have a redeal?
1.8.2006 2:40pm
Noah Klein (mail):
DTI:

That's a point. I was just trying to determine a reason why he was so adamant in his belief.

John:

Option C is misstated. The members of Congress are lawyers, as were the people who wrote the CRS report.

But you know who I'm going to trust on whether this program violated FISA, Gonzales.

Noah
1.8.2006 2:52pm
Medis:
John L. and Noah,

I'm going to "trust" no one. But until I have evidence to the contrary, I am going to assume that Gonzales and the Moschella Letter gave an accurate description of the program.

And, of course, Alexander did not actually contradict that description--unless, of course, you assume that he believes that the argument made by Gonzales and the Moschella Letter are wrong. But I see no reason to assume that.
1.8.2006 3:06pm
Kazinski:
We all pick and choose who we think we can trust on this issue. But the one person who has been briefed since the beginning (actually two people in one role) that I think would bring the greatest credibility, is the Presiding FISA Judge. I don't think anybody who thinks the NSA program is illegal has addressed one of the big holes in the illegality arguement. If the Presiding FISA judge has been briefed from the beginning of the program and it was a clear violation of FISA, why have they remained silent? No hint of even a weak "Rockefeller Letter". That seems significant to me.
1.8.2006 3:18pm
ron (mail):
Charlie (Colorado) (mail):


now all he has to do is prove it.



... because, of course, "innocent until proven guilty" only applies during Democrat administrations.

Are you saying he should be charged and we should begin legal proceedings, or are you saying that public officials can make whatever absurd statements they like and not have to back them up with facts?
1.8.2006 3:29pm
Noah Klein (mail):
Kaz:

I have answered your question about the FISC judge numerous times. Here is one of them.

As I said in that post, the FISC judge can not making any ruling on the legality of the program unless brought in a suit before her court. This is impossible because of various things that I laid out in my post which is linked above. She may written a letter and may not have. If she did, it would classified like the Rockefeller and Pelosi letter. Maybe she just hasn't tried to get the letter unclassified. Maybe she didn't write a letter. Whether or not she wrote a letter is not the issue. The issue is was the president's action able to be checked by one of the other branches. As far as I know it couldn't and I haven't seen any reason to see why it could. Will you provide me with a reason to dismiss my understanding of the law?

Noah
1.8.2006 3:39pm
Wendy:
Brownback: 9/11 Resolution Did Not Give Bush Authority for Warrantless Wiretapping

This morning, Sen. Sam Brownback (R-KS) added his name to the growing list of conservatives who have expressed disapproval of Bush’s illegal warrantless wiretapping program, further undermining the right-wing spin that the only critics of the program are liberals. On ABC’s This Week:

STEPHANOPOULOS: Are you confident that the administration has acted lawfully in this case?

BROWNBACK: I think we need to hold hearings on it and we’re going to. Both in the intelligence committee, there will be closed hearings and then the judiciary committee will have open hearings.

I think we need to look at this case and this issue. I am troubled by what the basis for the grounds that the administration says that they did these on, the legal basis, and I think we need to look at that far more broadly and understand it a great deal.

I think this is something that bears looking into and us to be able to establish a policy within constitutional frameworks of what a president can or cannot do.

STEPHANOPOULOS: You don’t think the 9/11 resolution gave the president the authority for this program?

BROWNBACK: It didn’t, in my vote. I voted for that resolution. That was a week after 9/11. There was nothing you were going to do to stop us from going to war in Afghanistan, but there was no discussion in anything that I was around that that gave the president a broad surveillance authority with that resolution.

Via Thinkprogress.org
1.8.2006 3:41pm
PersonFromPorlock:
John Lederer:

Option A trust a Lt. General...

Just a quick note: all veterans know that the Generals' Selection Board is where they separate the soldiers from the politicians and promote the politicians. A general's word is no better than any senior bureaucrat's, and may be worse.
1.8.2006 3:48pm
Just an Observer:
Kazinski:

I, too, remain very curious about what was said when the chief judge was "briefed," and what, if any, legal standing that event had.

In Article III courts, government attorneys typical don't "brief" a judge or a magistrate. They make motions. Judges issue orders.

In the FISC court, we know little about what the rules are. We do know from the FISA statute that the jurisdiction is narrowly circumscribed.

There also is no indication that this was in any way a consultation in which the chief judge had anything to say or any authority to approve anything. The concept of a briefing to me implies notice, not consultation. And there is no indication that judge issued any sort of ruling, opinion or order.

Indeed, under the narrow procedures definend in the FISA statute that sets up the FISC courts, there does not seem to be any authority for any such briefing. (Similarly, one has to wonder about the "briefing" reportedly scheduled for the other FISC judges this week. It reportedly is focused on the narrow question of whether FISA court orders were tainted by unlawful surveillance.)

I can find nothing in the law indicating that the chief judge was empowered to approve or disapprove anything other than an application for a FISA court order authorizing surveillance -- which we know this was not. Similarly, the current FISA judges do not seem to be empowered to effect any remedies, even if they believe after their new "briefing" that the whole program has been extralegal.

This is all very murky. Out of that murk, we cannot infer that this program was lawfully approved in advance by a judge.
1.8.2006 3:50pm
Kazinski:
Noah.
It is one thing for a spineless Senator to write a weak CYA letter expressing a fuzzy unease with the surveilence. But when the Presiding Judge is briefed repeatedly, and to this day there is not even a hint that an eyebrow was raised by the Judge. And while these briefings were not a venue for Judge Kotar-Kotelly to issue a ruling, they were a venue for her to form an opinion, a particularly well infromed opinion, at that. An opinion that Lt. Gen. Alexander, as head of the briefng agency would be aware of.
1.8.2006 4:06pm
Craig Oren (mail):
I think the most interesting aspect is that the director feels the need to reassure the agency's employees. Perhaps that's a indication that not all NAS employees are particularly comfortable with the program.
1.8.2006 4:08pm
Anonymous Reader:
I have been following this situation for the last few weeks and I've been very surprised about a lot of the comments on this subject. There have been some very big brained legal eagles debating the legality/constitutionality of the NSA program and even they are not conclusive one way or another. I'm thinking conclusive beyond a reasonable doubt.

Then on this thread, I read comments saying that so and so's obviously lying because he'd be implicating himself and the organization if he wasn't. I mean, I'm just a nonlawyer who watches "Law and Order" every once in a while, but wouldn't a lawyer tell the General to NOT make a statement one way or another? Wouldn't that be the prudent thing if you believed or thought you might be involved in an illegal operation?

There have been some good analysis and questions through these discussions and I greatly appreciate learning about this stuff. But please, let's stop with the accusations and attacks on the reputations of these people, regardless if they're military/politico's/etc. Let the facts set us free!!

As an aside, those comments dealing with what power Congress, FISA courts, and other personnel who were briefed and what authority they have to start or stop this program is a nonstarter with me. You don't get to that level in government without SOME situational awareness and intelligence. These people could easily have exercised the proper channels to bring these "charges" to light without jeopardizing (or possibly jeopardizing, depending on your world view) national security.

That letter by Rockafeller and Pelosi.... hmmm... can someone say... CYA?? If they weren't willing to exercise the proper channels to ensure that what the country was doing was proper, then should we trust them with the power that comes from being a congressman? Every day, young men and women in the armed services make life or death situations for themselves and their fellow Marines or soldiers. They make decisions and live with the consequences. It sounds to me like we've got some leadership in the Congress who are unwilling to make the tough decisions and live with their consequences

Anonymous Reader
1.8.2006 4:09pm
Noah Klein (mail):
Kaz:

Firstly, we don't know who briefed the judge. Secondly, it is more likely that Gen. Alexander would believe in the position stated by the DOJ than somebody from another branch of government. Every poli sci professor will tell that you stand where you sit. Third, we don't know what her opinions were or are. As far as I know, she has never expressed anything publicly beyond the statement that she organized a briefing for the rest of the court. Finally, this wasn't merely a CYA letter, because Rockfellar had no reasonable expectation that this program would become known before the outcome of the war was decided. Also, what else could he have done? You have still not answered that.

Noah
1.8.2006 4:14pm
Noah Klein (mail):
AR:

HOW?

I have asked this many, many times and never been answered but with a vague: Well, they have power and must have some way. How? They can't conduct hearings, because that involves talking to the other committee members who are not allowed to know. They can't cut money, because that would once again involve the other committee members. How?

Noah
1.8.2006 4:20pm
Defending the Indefensible:
Kaz,

From the December 15 NYT article:

"A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said."

Sounds like eyebrows were raised.
1.8.2006 4:21pm
Anonymous Reader:
Noah,

There is a deliberate process that has been established by Congress when dealing with possible intelligence violations. I do not know the process (I am not a lawyer, but I'm sure some of these folks here know what it is or have the resources to find out), but there is a distinct process set aside just for these types of situations. That is why a lot of people are upset that this information went straight to the NYT and not through the appropriate channels.

Therefore, I believe that whomever leaked this information to the NYT is not a "whistleblower" in the true sense of the word.

Anonymous Reader
1.8.2006 4:26pm
Noah Klein (mail):
AR:

The requirements for consultation with Congress are laid out in the National Security Act of 1947. I have cited before either read those cites or find it yourself. A committee can conduct oversight. A single congressperson or senator can't. I'm still waiting.

Noah
1.8.2006 4:30pm
Defending the Indefensible:
AR,

I don't think anyone accused the Lt. General of lying.
1.8.2006 4:36pm
Anonymous Reader:
Noah,

Actually, I think we're talking apples and oranges. You're talking about what a committee member can or cannot do. I am talking about what individuals can do if they feel that there is an intelligence violation. If I remember it correctly (I'm sure someone will correct me if I'm wrong or way off base), but when Congress drafted the "whistleblower" protections, they crafted a separate process for intelligence related "whistleblowings" so that the appropriate level of security could be maintained AND still allow someone who felt that intelligence has been abused to be able to come forward.

So, if someone in the NSA or anyone associated with any intelligence program felt that something or some issue was amiss (with regards to intelligence), they could have used the appropriate process to air their grievances. Like I said, I do not know the process itself, but I know that one exists.

And just to pre-empt, just because I don't know the process doesn't excuse an intelligence worker, congressmen, etc from knowing it. Intelligence is their job, not mine.

Anonymous Reader
1.8.2006 4:37pm
colt41 (mail):
Anonymous Reader: "There have been some very big brained legal eagles debating the legality/constitutionality of the NSA program and even they are not conclusive one way or another. I'm thinking conclusive beyond a reasonable doubt."

Proof beyond a reasonable doubt is a standard criminal-law practitioners associate with a quantum of factual proof of at least 95% or more (to give the jury some sense compared to preponderance and clear and convincing).

Does compliance with the Constitution, in terms of the underlying legal theory in play, require proof beyond a reasonable doubt that this theory is right?

Who should bear that burden? The particular branch of government whose actions are in question? The person challenging the particular government actor's action?

Regardless, where a three-judge circuit panel splits 2-1, does that mean the winning party proved its legal theory by 66%?

When SCOTUS splits 5-4, did winning party proved its legal theory by 55% -- the bare minimum?

So shouldn't 55% then be the minimum standard in this discussion?

Has the administration showed that they're right under any theory posited so far by the DOJ (and not Polaris's technical FISA arguments [which may or may not be correct], unless he's speaking as a member of the administration, because the DOJ letter to Congress did not rely on FISA except insofar as the AUMF is concerned), to a degree of certainty of 55%?

By the way, a recent AP-Ipsos poll says 56% of Americans believe the executive branch should be required to obtain a court-issued warrant before spying on an American, even if terrorism is the point of the monitoring/search. [A prior poll asked only if eavesdropping/tapping/etc. was a good idea -- the question of whether a warrant should be required was not covered.]

Here's a link to the ChiSunTimes story on the AP poll:
http://www.suntimes.com/output/news/cst-nws-spy08.html
1.8.2006 4:39pm
Anonymous Reader:
DTI,

You're right. It was insinuated in the posts around 2:25 or so, that of course he's going to say/believe that....

My point is, is that there is a lot of "chatter" going around about this subject and a lot of people have come to some pretty solid conclusions about this program without knowing all the details. I'm sorry but if you (not necessarily you DTI, but to the entire thread in general) were a judge and I was in your court, and you came to a decision without weighing all of the relevant facts, I would think I would have a pretty good reason to be afraid of the outcome.

Anonymous Reader
1.8.2006 4:43pm
Riccardo (mail) (www):
John Lederer:


Option C trust members of Congress who aren't lawyers, have political aims, and might be embarassed poltically


Are only those (very few) members of Congress who aren't lawyers involved?

Seriously: the place is lousy with lawyers... whether that makes them more or less competent to comment on this is another matter.
1.8.2006 4:43pm
Robert Schwartz (mail):
I'll take Option A, unless I can have the option of trusting 500 names chosen at random from the Denver phone directory.
1.8.2006 4:49pm
Anonymous Reader:
Colt41,

Very interesting take.

Does compliance with the Constitution, in terms of the underlying legal theory in play, require proof beyond a reasonable doubt that this theory is right?

In a word, no. The Supreme Court only requires a 5 to 4 majority to determine whether something is constitutional or not. But they look at ALL the arguements before making that determination.

What I meant by that, is that I do not think we have even "95%" of the facts about this program. We're guesstimating about something that we don't know a lot about, depending on who you talk to. So, it would be prudent to reserve judgment until all the facts are on the table. And if for security reasons all the facts CAN'T be put on the table, we will just have to take the word of the people in the "know". I know that's hard for some people to swallow, but that's how the law is formulated. I'm not saying don't be skeptical, but also don't attribute impure motives on people just because you think you KNOW. Everyone can't know everything.

Anonymous Reader
1.8.2006 4:55pm
ROA:
Colt41:

Wouldn’t the poll have been more believable if it had included questions asking how many people want to release Aldrich Ames and Iyman Faris? Faris is an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches? Both of them were convicted as a result of warrentless searches, and I really doubt if 56 percent of the people really want them released.
1.8.2006 4:56pm
Jutblogger (www):
A thought just occurred to me as to why the FISA, as being argued by opponents of the program, might be unconstitutional. It would not be because the Act is an usurpation of Congress over an Article II power, but rather, by its drafting, an usurpation of the Judiciary over an Article II power. If read the way the opponents would have it, the Administration could not conduct certain Article II powers without the consent of the Judiciary branch. I wonder if this line of thought will be raised to the courts at any point.
1.8.2006 5:06pm
jukeboxgrad (mail):
John,

"the lawyers would have the gov't. as a client, not the General"

It would not be surprising to discover that the General (also) has his own lawyer. After all, so did Bush, in connection with dicussing Plame with Fitzgerald.
---
Kaz,

"If the Presiding FISA judge has been briefed from the beginning of the program and it was a clear violation of FISA, why have they remained silent?"

Apparently she did complain, but maybe she didn't complain enough. If so, maybe it was for the same reasons that various people have gone along with all sorts of "extra-legal" activities from time-to-time (throughout this administration and throughout history). Or for the same reasons that a Harvard professor of government has told us that: "the rule of law is not enough to run a government ... we need both the rule of law and the power to escape it ... A strong executive is one that is not confined to executing the laws but has extra-legal powers."

By the way, there's an alternate explanation, that the judge was not fully or honestly briefed (and this same concern applies with regard to the congressional briefings). What knowledge do you have of these briefings, aside from what the administration has said?
1.8.2006 5:17pm
AF:
Option E: Trust the Attorney General.

But Options A and E are not mutually exclusive (both the general and the AG say the program was legal, but the AG gives a (spurious) reason and the general gives none), so we have:

Option F: Trust both the AG and the general.

and

Option G:
a) Trust the general;
b) impute to him factual assertions that he never made or implied and that contradict those made by the AG, and
c) believe those imputed facts rather than the explicit statements of the AG

Only Option G leads to the conclusion that the program is legal for reasons other than those stated publicly by the administration.
1.8.2006 5:22pm
Noah Klein (mail):
AR:

The Whistleblower Protection Act of 1989 particularly exempts people in the field of national security. I would suggest you read this interesting by a lawyer in the DOJ who suffered consequences because of the information she released about the violation of John Walker Lindh's civil liberties. I am trying to find the specific provision or lack there of in the law.

Noah
1.8.2006 5:31pm
Evelyn Blaine:
I assume that, in theory, if the FISA court really believed that the administration were acting in a grossly illegal fashion and entangling the court in a miscarriage of justice, it could use either its contempt power or mandamus to try to bring a stop to it. As far as I can tell, the All Writs Act applies to FISC (in fact, I think the government argued as much in its appeal brief in In re Sealed Case). I assume it is at least conceivable for a mandamus to issue sua sponte - can anyone who knows federal procedure tell me if there is any caselaw on this? In any case, the contempt power is certainly inherent in the court.
1.8.2006 5:39pm
Medis:
ROA,

That is a separate question. The Exclusionary Rule is certainly controversial, but just because a lot of people don't like the Exclusionary Rule as a remedy does not mean they favor using illegal methods to gain evidence.

Jutblogger,

That issue was actually raised in Hamdi--basically, only Justice Thomas took the view that the courts should have a limited role to play in military matters during war. And courts adjudicating warrant applications is, of course, a long-standing part of judicial practice. Accordingly, since Article III grants the judicial power of the United States to the courts, there is no obvious consitutional problem with Congress asking the courts to play this purely judicial role in this area.

In general, FISA neatly tracks our general constitutional structure: Congress sets the general rules and regulations in FISA, the executive branch decides for which particular communications it will seek FISA warrants, the courts ensure that the government has satisifed the rules as set by Congress, and the executive branch then carries out the lawful surveillance. That is each branch of government playing its traditional and constitutional role.
1.8.2006 5:41pm
John Lederer (mail):
"By the way, a recent AP-Ipsos poll says 56% of Americans believe the executive branch should be required to obtain a court-issued warrant before spying on an American, even if terrorism is the point of the monitoring/search. [A prior poll asked only if eavesdropping/tapping/etc. was a good idea -- the question of whether a warrant should be required was not covered.] "

Just as an aside, that is not a correct statement of the poll. The Ap-Ipsos poll said "Bush administration" rather than "executive branch".

The Rassmussen Poll found "December 28, 2005--Sixty-four percent (64%) of Americans believe the National Security Agency (NSA) should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States. A Rasmussen Reports survey found that just 23% disagree."

The difference between the polls might be the passage of time, but is likely the difference in the framing of the questions.

It is not a minor difference -- I think past history indicates that people are sensitive to political uses of supposed intelligence operations -- I know General Hayden was carefult to emphasize that the operational people were making the decision as to whom to intercept rather than political appointees.
1.8.2006 5:43pm
Anonymous Reader:
Noah, I think this might be the answer:

From this site: http://www.osc.gov/wbdisc.htm

The Referral Process under 5 U.S.C. § 1213(j)
For disclosures of information involving counterintelligence and foreign intelligence information the statute sets forth a different procedure under 5 U.S.C. § 1213(j). If the Special Counsel determines that a disclosure involves counterintelligence or foreign intelligence information, which is prohibited from disclosure by law or Executive order, the disclosure will be transmitted to the National Security Advisor, the Permanent Select Committee on Intelligence in the House and Select Committee on Intelligence in the Senate. 5 U.S.C. § 1213(j). The referral ends the Special Counsel’s involvement with the disclosure and the National Security Advisor and the Congressional intelligence committees decide how to proceed with the information. The disclosure will not be referred to the head of the agency involved for an investigation.


I think this might answer the question as to what a intelligence "whistleblower" is supposed to do.

Anonymous Reader
1.8.2006 5:46pm
Noah Klein (mail):
AR:

I have not found the specific provision in the Whistleblower Protection Act (WPA), but I have found a proposed bill that would have closed this loophole that excludes the national security professionals. I include the link here.

Noah
1.8.2006 5:54pm
John Lederer (mail):
My recollection, easily faulty, is that Judge Lambeth was the head of the court on 10/11 and was briefed. Judge Collar-Kelly became head in 2002, was briefed, and later raised an objection to a particular part of the program about the same time Comey did. The program was modified to meet their objection(s)
1.8.2006 5:55pm
John Lederer (mail):
From the HYT article:

"A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said. The judge questioned whether information obtained under the N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap warrant requests from the Justice Department, according to senior government officials."
1.8.2006 5:59pm
John Lederer (mail):
Uhhh.. NYT as in New York Times, not HYT as in the Hiram York Tattler.
1.8.2006 6:00pm
ROA:
Medis:

I disagree that it is a separate question. If warrentless searches had not been used neither Ames nor Faris would have been arrested, or at least not arrested as soon as they were. Opponents of warrentless searches are saying that it is more important to obtain a warrant than it is to arrest one of the most successful spies in the last 50 years or to arrest someone attempting to destroy the Brooklyn Bridge.
1.8.2006 6:06pm
Noah Klein (mail):
AR:

As I read this Section of the WPA it says that if the disclosure of the information, that is the act of disclosing the informaiton, violates the law or executive order then a report will be sent from the DOJ's office of Special Counsel to the NSA and the intel committees in Congress. This will only happen after the illegal disclosure of information and thus when it went it is heard by someone without clearance. I do not see how this protects whistleblowers in national security cases. Furthermore, I don't see how this would help an individual member of the committees or the presiding judge of the FISC, if they objected to the program. How does this get the president to stop?

Noah
1.8.2006 6:20pm
Just an Observer:
ROA,

I would point out that as far as we know, Faris did not have any communications intercepted under the warrantless surveillance at issue. His lawyer says he is trying to find out, but we don't know the answer, and his lawyer may not succeed in getting the answer.
1.8.2006 6:52pm
frankcross (mail):
What reason is there to think that the Administration couldn't have gotten a quick warrant for Ames or Faris? You have to prove that before they justify the need for warrantless searches.
1.8.2006 7:05pm
John Lederer (mail):
"One aim was to take swift advantage of fresh leads collected by the CIA overseas, especially in cases when an agency raid led to the seizure of a laptop computer or cellular telephone containing logs of phone numbers.

Much of the NSA's activity was driven by CIA operations.

"We would say, any call from this number — whether it goes to Brooklyn or Tashkent — listen in on it," a former senior intelligence official said. "The freedom was needed to follow the traffic, the phone traffic, wherever it went." The former official, who defended the program, added: "You have to remember that up until the Patriot Act, (NSA eavesdropping experts) had to hang up even if they had Osama bin Laden talking to an American." A second former official said the program contributed to the apprehension of Lyman Faris, an Ohio truck driver who pleaded guilty in 2003 to charges of collaborating with al-Qaida on a plot to blow up the Brooklyn Bridge."

Detroit News


Press Conference:
Q Sir, can you explain, please, the specific inadequacies in FISA that have prevented you from sort of going through the normal channels?

GENERAL HAYDEN: One, the whole key here is agility. And let me re-trace some grounds I tried to suggest earlier. FISA was built for persistence. FISA was built for long-term coverage against known agents of an enemy power. And the purpose involved in each of those — in those cases was either for a long-term law enforcement purpose or a long-term intelligence purpose.

This program isn't for that. This is to detect and prevent. And here the key is not so much persistence as it is agility. It's a quicker trigger. It's a subtly softer trigger. And the intrusion into privacy — the intrusion into privacy is significantly less. It's only international calls. The period of time in which we do this is, in most cases, far less than that which would be gained by getting a court order. And our purpose here, our sole purpose is to detect and prevent.

Again, I make the point, what we are talking about here are communications we have every reason to believe are al Qaeda communications, one end of which is in the United States. And I don't think any of us would want any inefficiencies in our coverage of those kinds of communications, above all. And that's what this program allows us to do — it allows us to be as agile as operationally required to cover these targets.

Q But how does FISA —

GENERAL HAYDEN: FISA involves the process — FISA involves marshaling arguments; FISA involves looping paperwork around, even in the case of emergency authorizations from the Attorney General. And beyond that, it's a little — it's difficult for me to get into further discussions as to why this is more optimized under this process without, frankly, revealing too much about what it is we do and why and how we do it.
1.8.2006 7:36pm
ROA:
Just an Observer:

We don't know definately, but the December 16, Risen artcile on the program stated that "Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris."
1.8.2006 7:43pm
Jamesaust (mail):
There has been some discussion of Whistleblower Disclosures for Congress and Judges. I believe insufficient information exists in public to be worth speculating on the judicial aspects of this. However, I believe I agree largely with Noah Klein, this provision does not address the situation of an executive/legislative face off but rather includes Congress in oversight of executive internal action. In short, its about protecting garden variety employees.

There has been much reference to "CYA" objections by members of Congress, especially to Senator Rockefeller's now infamous handwritten letter. Also a reference to "the appropriate process to air their grievances." The is no such "process."

It is hardly in my nature to defend some of these Congressional persons, Pelosi especially. But in all fairness, it is important to remember that it is a crime to reveal information about this program outside of the executive's discretion. Whomever - Reid, Hastert, etc. - could no more talk about this with the other 96% of Congress than they could with al-Qaeda. Short of a quorum, Congressmen (and women) are no more powerful in the Constitutional scheme then a kitten. Heck, even the handwritten nature of Rockefeller's letter gives truth to this - he couldn't even delegate typing the letter to staff.

Congress operates with staff, many of whom have security clearances. Congress holds hearings (in 'executive session' if need be). Witnesses - perhaps some of these law professors - are called to advise. Debate occurs. NONE of this can happen without revelation of the substance held in secret. Reid can no more call for Bill XYZ to be passed "for reasons I cannot disclose" then he could wish into existence a few extra Democrat Senators. While Congress deserves some criticism over multiple sessions during several Administrations for not asserting its rightful oversight responsiblities, it doesn't deserve criticism for not ignoring the criminal penalty for talking candidly about the elephant in the room.
1.8.2006 8:00pm
Just an Observer:
ROA,

Thanks, I had somehow missed that detail. For purposes of discussion it seems reasonable to assume that the press report about surveillance of Faris is correct.
1.8.2006 8:09pm
Anonymous Reader:
Jamesaust,

That seems to make sense. So what you're saying is that the statute I linked to earlier only provides a process for individuals not in Congress or the judicial branch? I don't know enough about this to argue one way or another, but with all this talk about power struggles between the executive and legislative branches, I find it hard to believe that their hands were so tied as to not be able to either 1, ask for more clarifying information from the NSA or WH regarding the program since they couldn't or didn't understand it as it was briefed, or 2, put the screws to the executive as to the nature of this "violation" since it's (sarcasm/) such an egregious violation of the US Constitution and FISA (/sarcasm).

I still feel that to just throw your hands up and say, "well... I don't know enough about the program and I can't talk to anyone about it, I guess i'm just up the creek..." just doesn't cut the mustard with me. There may not be an explicit process that covers this situation (which I would find hard to believe, or maybe the normal process is supposed to cover these situations?), but there's gotta be a way. If you get periodic briefings about this program and you're still confused about it, I think we may have the wrong people sitting in those chairs representing us. Also, if the WH lawyers or NSA lawyers or whomever is responsible for examining the legalities of this operation say that it's "legal" then why is their explanation not good for Congress? Is this situation THAT complex that a Congressman who's also a lawyer couldn't look at the arguments and make a decision?

On the flip side, if they saw something fishy or a stretching of the AUMF by the administration, couldn't they make a statute to effectively limit the scope or narrow the reach of the AUMF?

I'm just throwing stuff out, but with all the lawyers and professional politicians involved in this, I find it hard to believe that their hands were tied such that they couldn't object to the program.

Anonymous Reader
1.8.2006 9:15pm
Apodaca:
ROA says:
"Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris."
Two comments:
1) Note the word "helped." That covers a lot of territory, including gathering information that is cumulative of info gathered by other means.

2) As an aside, does it occur to anybody just how lame it is that an investigation into the leak was recently initiated more than a year after the NYT told the White House it was working up the story? If disclosure of the NSA program was really going to hurt intelligence efforts by disclosing sources/methods, why wasn't the leak investigated immediately? (The answer is left as an exercise for the reader.)

Bonus comment: Kazinski claims that FISC didn't "raise an eyebrow," but the NYT has reported consistently that FISC demanded repeated assurances that nothing collected under the program was being used in applications for FISA orders. That is not the way a court behaves if it views a given activity as legally kosher.
1.8.2006 9:30pm
Noah Klein (mail):
AR:

Maybe there was some method beyond writing a letter of protest that a Congressional official could employ to demonstrate his anger over the program. But I don't know of any means they could use to stop the program.

Noah
1.8.2006 9:56pm
Medis:
ROA,

You originally said:

"Wouldn’t the poll have been more believable if it had included questions asking how many people want to release Aldrich Ames and Iyman Faris?"

You later said:

"If warrentless searches had not been used neither Ames nor Faris would have been arrested, or at least not arrested as soon as they were."

So, you have gradually moved from release to merely slowing the government down. And even that isn't true, since FISA also provides for retroactive warrants in emergency situations.

The real issue is whether the government can conduct electronic surveillance of US citizens without probable cause and without having to go to a court with their information, at least within 72 hours. I think if you frame that issue accurately, the people in this poll are not likely to change their mind--indeed, I wonder how many of the 42% who thought warrants should not be required were stating that in light of the 72-hour emergency provision.
1.8.2006 10:00pm
Stormwarning (www):
Anyone else read the CRS Report on the subject?



The conclusions include:

"... While courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information. Given such uncertainty, the Administration's legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests."

Anyone wish to read and interpret the report for me? I've read it twice and still come out wondering.
1.8.2006 10:04pm
Stormwarning (www):
Previous post somehow left out the link.

Anyone else read the CRS Report on the subject?

http://www.fas.org/sgp/crs/intel/m010506.pdf

The conclusions include:

"... While courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information. Given such uncertainty, the Administration's legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests."

Anyone wish to read and interpret the report for me? I've read it twice and still come out wondering.
1.8.2006 10:06pm
jukeboxgrad (mail):
ROA,

"If warrentless searches had not been used neither Ames nor Faris would have been arrested"

Folks who get all their information from Power Line definitely don't know this (I am only mentioning this in passing, and not assuming that you are in that category), but there is a 72-hour provision. This means that emergency surveillance can begin without a warrant, as long as an application for a warrant is submitted within 72 hours. Note that a warrant doesn't need to be obtained within 72 hours. It is only necessary to apply within 72 hours. The law explaining this is here.

Please explain how this system, if respected, would have prevented tapping in the Faris case or in any other relevant case.
---
anon,

"there's gotta be a way"

Our system does provide another way. When all else fails, one can leak to the press (which might then spend a year considering the matter). Of course some folks are suggesting that the leakers should be hanged by the neck until "dead, dead, dead."
1.8.2006 10:07pm
ROA:
Medis:

I put the statement about delayed arrest in because if I hadn’t, you, or someone like you would have brought it up. It seems likely that Ames would have eventually been caught, less likely that Faris would have been. Who knows how much extra damage they would have done. As far as the poll is concerned, the government seems to be at a disadvantage because they don’t want to reveal all of the reasons they avoided getting a warrant.
1.8.2006 10:12pm
Noah Klein (mail):
Stormwarning:

As I understand the report, it basically said that we can't make a definitive conclusion on the legality of the NSA program. But saying that the executive's justification of the program (that it violated FISA, but the 2001 AUMF overrode FISA) is pretty weak.

Noah
1.8.2006 10:21pm
Medis:
ROA,

And the reason why "someone like me" will bring up things like that--and things like the 72-hour emergency provision--is that those things are the truth. Which one would hope is still relevant.

Stormwarning,

I don't know if this helps, but there is an underlying distinction that is worth remembering: between "inherent" powers and "exclusive" powers. If the President has "inherent powers", he can use those powers even when not specifically authorized by Congress. But that does not necessarily mean that he can violate regulations passed by Congress.

In contrast, if the President's inherent powers are also "exclusive powers", then he not only does not need authorization from Congress, but Congress is also disabled from regulating the topic. Hence, the President need not comply with such regulations when his power is not just inherent, but also exclusive.

The first part of the first line of that CRS quote ("courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment") is a statement about the inherent powers of the President in this area. That statement is not controversial and is well-supported.

The middle part of the quote, in contrast, is about whether this power is exclusive, meaning that Congress cannot pass laws regulating this subject. As the CRS explains, there is no actual court holding which says that (although there is the infamous Sealed Case dicta, which may or may not imply that).

The CRS is drawing this distinction because some (including, perhaps, the court in Sealed Case) seem to slip between the inherent powers issue and the exclusive powers issue without noting that while there is plenty of authoritative caselaw supporting the inherent powers proposition, there is no authoritative caselaw supporting the exclusive powers proposition.

Hence, insofar as the Administration's argument also did not note this distinction, it is not "as well-grounded as the tenor of that letter suggests."
1.8.2006 11:00pm
John Lederer (mail):
"Folks who get all their information from Power Line definitely don't know this (I am only mentioning this in passing, and not assuming that you are in that category), but there is a 72-hour provision. This means that emergency surveillance can begin without a warrant, as long as an application for a warrant is submitted within 72 hours. Note that a warrant doesn't need to be obtained within 72 hours. It is only necessary to apply within 72 hours. The law explaining this is here.

Please explain how this system, if respected, would have prevented tapping in the Faris case or in any other relevant case."


General Hayden appears to have answered that or at least hinted at the answer in his press briefing.

Directly he said that even the AG's emergnecy authrotiy does not provide sufficient "speed" and "agility" because of the necessity of aperwork befoire commencing the tap (the law does require that the Ag satisfy himself of some things).

Indirectly I think he gave a very strong clue when he said that the shift supervisor, following guidelines, is the one who actually makes the decision to surveil. I infer from this that the decision is being made real time or near real time,
1.8.2006 11:01pm
John Lederer (mail):
This is very intersting as it suggests a long held power of Customs to open mail coming into the US:
http://www.msnbc.msn.com/id/10740935/
1.8.2006 11:03pm
Stormwarning (www):
Thanks to both. What I hope to see is a reading by a legal or FISA expert on the entire 44 page CRS report. Clearly, the CRS report will end up on the desks or computers of Congressional staffers, and form opinions. No?

I've read it (twice) and I came away with the same conclusion as Noah Klein (thanks). I guess I am wondering if I missed something or mis-read it.

I will always go to the original information/documents rather than a newspaper analysis if I have the choice.

FWIW: http://tinyurl.com/a7xu4 (sorry my earlier attemp to post a URL didn't work for some html reason that I don't yet understand).
1.8.2006 11:10pm
Medis:
John L.,

They can now also do certain examinations of outgoing mail, some without a warrant. The procedures are laid out in Section 583 of the Trade Act of 2002.
1.8.2006 11:18pm
John Lederer (mail):
Medis,

About 1972 I ordered a bagpipe chanter reed from Scotland. The envelope it came in had been opened and taped shut. Though I do not recall a seal, I do seem to remember a rubber stamp that said "inspected" or something similar.

I remember it very well. I sent the order by air mail Sunday. I received the reed on Wednesday -- a truly astounding turnaround time compared to what I was used to in the US.

Interesting about the outgoing.
1.8.2006 11:32pm
Medis:
If I am not mistaken, the long-standing rationale for why incoming mail could be inspected without a warrant was the "border exception"--meaning the US could inspect incoming mail to prevent it from being used to transport contraband or to avoid duties. It is not obvious how that exception should be extended (if at all) to outgoing mail. Indeed, if I recall correctly, in addition to the "usual suspects" (eg, the ACLU), the US Postal Service also objected to allowing for warrantless searches of outgoing mail.
1.8.2006 11:44pm