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Campaign to Defend the NSA Surveillance Program:
The New York Times has the details.
Anderson (mail) (www):
Don't miss Kevin Drum on the subject, as the article does little to point out the obvious half-truths.

Looking forward to some crim-pro types' comments on the innovative distinction between "reasonable" and "probable cause."
1.23.2006 5:38pm
Just an Observer:
The PR offensive will gain polling points. PR offensive almost always do. That is why the case is being made in the Court of Public Opinion.

However, the comments do nothing but damage to Bush's legal case if it ever gets into a real court.

Gen. Hyden's remarks confirm what was common speculation here. That is, the principal reason the FISA courts were bypassed was that the program failed to meet the legal standard of probable cause.
1.23.2006 6:43pm
volokh watcher (mail):
Orin,

I don't know if you caught Scott McClellan's remark during today's press gaggle (on the WH website in the news section) invoking the "hot pursuit" principle -- another of the many exceptions to the 4th Amendment's warrant requirement (along with "special needs", which the administration has claimed here):

Q: Scott, yesterday on the talk shows several -- the lawmakers suggested that the President should ask Congress for any fixes that he might see in the FISA law. Is the President inclined to ask Congress for any changes?

MR. McCLELLAN: Well, a couple of things. This goes to the terrorist surveillance program we were just talking about. It is -- again, this is a targeted effort aimed at al Qaeda communications coming into or out of the United States. It is a limited, *hot pursuit effort* to prevent and detect attacks inside America. . . . (astericks added).

Sounds like Bush &Co are trying out a new sound bite to see if it sells.

Well, Orin, are you buying the "hot pursuit" angle?
1.23.2006 6:47pm
Anderson (mail) (www):
"Hot pursuit"? Are they letting the President tamper with Scotty's script?
1.23.2006 6:54pm
Just an Observer:
volokh watcher,

The "hot pursuit" metaphor was also used by Gen. Hayden. From the NYT story linked above:

"It is not a driftnet over Dearborn or Lackawanna" or other areas with many Arab-American residents, [Hayden] said. "This is hot pursuit of communications entering or leaving America involving someone we believe is associated with Al Qaeda."


I don't think that phrase was used in the DOJ white paper.
1.23.2006 7:19pm
Medis:
There is an interesting tension in all this. Insofar as this was a "limited" program (eg, to the extent it was based just on something like a reduction of the applicable standard from probable cause to reasonable cause), it likely would be relatively easy to adjust FISA accordingly--if, of course, Congress could be persuaded to do it. Conversely, if this was a truly new, widespread program, it might require a greater change in FISA--but apparently that would make the program scarier to the public.
1.23.2006 8:43pm
volokh watcher (mail):
Just an Observer:

Scott McClellan used the phrase *hot pursuit* during his morning press briefing with the WH press corp. Go to WH.gov and then to the press room. You'll see the transcript.

All I'm saying is that the President's designated press secretary has now invoked "hot pursuit" as a justification. Whether Hayden did, per the NYT, I don't know or really care -- as Hayden does not speak for the WH, technically. (Of course, he has his WH-generated talking points, no question about that.)

As for the White Paper, I agree that a hot-pursuit angle was never offered. I don't think I suggested it was (and certainly didn't mean to if I did).

I'm just wondering if someone in the WH polling dept hasn't come up with the idea that, rather than stand by the arguments in the White Paper -- which are uber-boring for regular grass-roots type folks -- why not use the "hot pursuit" imagery.

Just imagine. George Bush and General Hayden saddling up to chase down those terrorists with a cell phone in one hand, a Colt revolver in the other, a lariat on the saddle along with a Japanese-made Winchester rifle.

I'm poking fun.

But "hot pursuit" resonates because it's just the opposite of eavesdropping -- a terribly passive act.

I'll be interested to see if McClellan et al. keep up their hot pursuit of the "hot pursuit" line because it makes it sound as though Bush is actively doing something.
1.23.2006 8:52pm
JamesB:
The President still has given no reason for why he bypassed any Congressional or Judicial oversight. Internal oversight is not sufficiant. Until he explains that, no mater how necessary this program is, he is using it as a means to expand Presidental power.
1.23.2006 8:58pm
Wonderland:
I've noticed that the Administration has insisted that one end of all intercepted calls under the NSA program is outside of the U.S. What I'm curious about is the legal principle behind such a distinction.

I mean, if FISA can be bypassed under the AUMF/Article II authority of the President, then what legal principle limits such interceptions to international calls? In fact, under the Administration's rationale, isn't limiting the NSA program to only international calls seemingly arbitrary and, indeed, dangerous? I mean, does it make any sense that the AUMF/Article II authorizes the President to make war on Al Qaeda by, e.g., eavesdropping on calls between Boston and Tehran, but not on calls between Boston and New York? Can anyone think of a legal distinction here?
1.23.2006 9:08pm
Anderson (mail) (www):
if FISA can be bypassed under the AUMF/Article II authority of the President

I appreciate the serious nature of your question, but "if" the AUMF/Article II can be successfully invoked, then discussing any limits on the presidential power is academic at best.

No matter what he's doing, the courts won't be able to review it, because it's A Matter of National Security.
1.23.2006 9:14pm
volokh watcher (mail):
Wonderland wonders if the President's 1-in-and-1-out (international caller on one end and domestic caller on the other) distinction actually creates a danger?

Answer: not if the President is in "hot pursuit" of those Al Qaeda suspects here in America.

So long as the administration's in hot pursuit of electronic impulses moving over the phone lines or through the air -- and I assume that would be FBI agents doing the electronic chasing -- there's no need for a warrant domestically. See Warden v. Hayden, 387 U.S. 294 (1967).

It's like that book about the bouncy, bouncy ball . . . that I used to read to my kids when they were 2 years-old.
1.23.2006 9:19pm
Apodaca:
So long as the administration's in hot pursuit of electronic impulses
For some reason, this conjures up images of Dick Cheney -- clad in glowing integrated-circuit clothing -- roaring along on his light-cycle, with the diabolical Master Control Program ominously intoning "END OF LINE!"
1.23.2006 10:57pm
Justin (mail):
I'm glad we're having fun with the absurdity of an administration that has clearly and knowingly broken the law and failed to conform to the oaths of office.

No, really. I'm Jewish. If we didn't have humor, we'd be nowhere :).
1.23.2006 11:18pm
Anderson (mail) (www):
Exactly right, Justin. We laugh, that we may not weep.
1.24.2006 9:18am
srg (mail):
Medis (and Professor Kerr),

If I may return to the question of the legality and constitutionality of Bush's NSA actions, since this seems like as good a place as any, I find that your arguments and Professor Kerr's are quite similar and that for me the weakest part of his argument concerns the AUMF and FISA. Professor Kerr wrote:

"So does the AUMF authorize the surveillance? As often happens when you're trying to draw guidance from an O'Connor opinion, it's not entirely clear. Under her opinion, the key question is whether the act is "so fundamental and accepted an incident to war" that it falls within the authorization. But that depends on the level of generality you chose to use to define "the act." Is "the act" spying on the enemy? In that case, perhaps it is a fundamental incident to war. Or is "the act" conducting U.S. domestic surveillance of U.S. citizens? In that case, the answer is no, it's not a fundamental incident to war.

"In the end, my best sense is that the AUMF doesn't extend to this. I have three reasons. First, O'Connor's opinion says the following about detention for interrogation: 'Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized.' It seems to me that surveillance and wiretapping is pretty similar to interrogation: the point of both is getting information about your enemy. Second, it doesn't seem like wiretapping counts as a "use of force." If you read the text of the AUMF, it doesn't seem to me that it authorizes wiretapping. Finally, note that Congress passed the Patriot Act about a month after passing the AUMF; if Congress had intended the AUMF to give the president wide authority to conduct domestic surveillance against Al Qaeda, I don't think they would have spent so much time amending FISA for terrorism investigations. So at bottom, I think the AUMF probably didn't authorize this, although the Hamdi case gives some colorable (if ultimately unpersuasive) arguments that it might."

I believe there is a flaw in at least two of Professor Kerr's three arguments. First, O'Connor only said that INDEFINITE detention for interrogation was not justified, not detention for interrogation itself. Second, while wiretapping is indeed not a use of force, it is an incident of the use of force, which is all it needs to be to fit into the Hamdi decision. Third, while the text of the AUMF may not seem to authorize wiretapping, the AUMF doesn't seem to authorize the type of detention upheld in Hamdi either. As for Professor Kerr's third argument, concerning the Patriot Act, I have no opinion.
1.24.2006 10:38am
volokh watcher (mail):
SRG:

Respectfully, Hamdi's plurality is predicated on the existence of and geographic relationship between "active hostilities" and the president's action in question. Hamdi v. Rumsfeld, 542 U.S. 507, 520 (2004) ("It is a clearly established principle of the law of war that detention may last no longer than active hostilities."); id. at 521 ("If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF.")

It seems to me then that domestic spying, as a justifiable incident to the "necessary and appropriate" use of force, may be tied to the existence of active hostilities in the United States.

Congress refused the president's entreaty to include the U.S., as a theatre of operation, in the AUMF.

Wouldn't that seem to foreclose the administration's argument under Hamdi then, at least insofar as the AUMF is concerned?
1.24.2006 11:07am
srg (mail):
Volokh watcher:

"It seems to me then that domestic spying, as a justifiable incident to the 'necessary and appropriate' use of force, may be tied to the existence of active hostilities in the United States."

I doubt that the distinction between "active hostilities in the United States" and active hostilities abroad is relevant in the context of 9/11 and the threat of more terrorism. Fighting is still going on in Afghanstan as well as Iraq, and there is still a terrorist threat here. If it is still acceptable to detain Hamdi, then you haven't shown a reason that there should be no fallout on the NSA spying from the Hamdi decision. I'm not sure I fully understand your third paragraph; precisely what did Bush ask for and Congress refuse? Certainly the AUMF must apply to terrorist threats within the U.S.
1.24.2006 11:36am
Apodaca:
srg writes:
Certainly the AUMF must apply to terrorist threats within the U.S.
See "ipse dixit."
1.24.2006 11:42am
srg (mail):
Apodaca,

Orin Kerr wrote:

"The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224."

If you are using "ipse dixit" pejoratively, why do you think the above quote does not apply to actions in the U.S. as well as abroad?
1.24.2006 11:50am
Medis:
srg,

I think Professor Kerr and I have somewhat different takes on this issue, although I often have agreed with much of what he has said.

Speaking just for myself, I'm not sure whether the surveillance as described by the Administration would fall within the scope of the reasoning in the plurality opinion in Hamdi. Like many O'Connor opinions, the holding in Hamdi is explicitly tied to a number of specific facts, and so once you vary those facts, it is not clear if the same holding would apply. In general, I think non-battlefield (in the literal, not metaphorical, sense) surveillance is obviously a closer issue than battlefield detention, given the reasoning in Hamdi, but I would not be comfortable predicting the outcome of such an evaluation.

So, my argument has for the most part assumed that the 2001 AUMF would indeed authorize such surveillance. But for me, the relevant question is not whether the 2001 AUMF authorized electronic surveillance, but rather whether that means such surveillance could be conducted outside the procedures of FISA. That second claim does not, of course, follow from the first, and it was not presented in Hamdi because the relevant statutes were very different.

And in a nutshell, it seems to me that there was no clear congressional intent in the 2001 AUMF to amend or repeal the necessary provisions of FISA and Title III, and there was in fact a clear congressional intent to have FISA as amended by the USA-PATRIOT Act apply to such surveillance. So, in my view there is a very strong case for interpreting the general grant of authority in the 2001 AUMF in accord with the proposition that FISA as amended still applies to such surveillance, even as authorized by the 2001 AUMF.
1.24.2006 11:54am
Apodaca:
srg:
why do you think the above quote does not apply to actions in the U.S. as well as abroad?
Oh, I don't know -- maybe because the Senate Majority Leader for the relevant period has this to say:
Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.
1.24.2006 12:04pm
srg (mail):
The statement of the Senate Majoriy Leader would, if a case reached the courts, be relevant, but not conclusive. For example, the words not added, "in the United States," might have only reinforced what was already there rather than adding something new. Or his opinion might be contradicted by that of other senators. Etc.
1.24.2006 12:15pm
Medis:
srg,

I think that is part of why the legal determination might depend on the burden of proof. Specifically, if the claim is that a later, more general, statute (in this case the 2001 AUMF) implicitly amended or repealed an earlier, more specific, statute (in this case FISA and Title III), the claimant usually has the burden of showing that either the two statutes are irreconcilable, or that Congress actually intended to amend or repeal the earlier statute.

In that sense, what Daschle describes could be very damaging, because even if it is not definitive, it would make it much harder for the claimants (in this case, the Administration) to meet their burden of proof on this issue.
1.24.2006 1:02pm
Just an Observer:
The plurality opinion in Hamdi was deliberately focused on an "enemy combatant" captured on a foreign battefield:

The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. 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.

Elsewhere, the opinion faulted Scalia's dissent because he had not taken account of the fact that a foreign battefield was involved: "Further, Justice Scalia largely ignores the context of this case: a United States citizen captured in a foreign combat zone...." (emphasis in original)

A closer analog might be found in the Padilla case, if the Supreme Court decides it. That case, involving the original detention of a citizen captured in the United States as an "enemy comabatant," might yield a better indication of how far the court would extent to U.S. soil its "incident of war" standard in a detention case. Notably, the government has sought to avoid resolution of that case by the Supreme Court, despite a sympathetic ruling in the 4th Circuit.

The Hamdi case, of course, is also differentiable because it involves detention, not surveillance. I don't think anyone would dispute the collection of "signals intelligence" on a foreign battlefield. But it is quite a leap to extend that concept to unwarranted domestic surveillance of U.S. citizens by relabeling it as "signals intelligence." The surveillance in the NSA program clearly falls within the definition of surveillance of agents of foreign powers covered by FISA.

There is more to the question of interpreting the AUMF in this case than just the AUMF. It is necessary to analyze FISA and the AUMF together, as well as other legislation such as the USA-PATRIOT act, to evaluate congressional intent. In contrast to the expansive reading of the AUMF based on implication alone, FISA itself explicitly contemplated the continued operation of its provisions in wartime situations (see Section 1811, "Authorization during time of war"). The fact that AUMF came after FISA thus is no indication that it was intended as an implied wartime exception.

And closely contemporaneous with the AUMF was the passage of the USA-PATRIOT Act, which included several amendments to FISA for the purpose of augmenting specific executive authority in the war on terror. If Congress had intended to grant authority for warrantless surveillance, such authorization obviously could have been made there.

As others have mentioned, we also should consider the recollection of both senators and the attorney general that congressional leaders rebuffed administration suggestions that the AUMF be expanded to include the United States as a theater, and that some explicit amendment of FISA be made to authorize the warrantless surveillance contemplated by the administration. It obviously has come as a great surprise to members of Congress this past month to learn that they voted to "authorize" such surveillance.
1.24.2006 1:10pm
srg (mail):
Medis and Just and Observer,

I think many of your points are well taken, and I think the Bush administration might have an easier time arguing that, presumably for technological reasons, FISA and AUMF are incompatible, rather than arguing that Congress actually intended to repeal FISA when it passed AUMF. This argument may present serious problems too, but it would make irrelevant Daschle's statements.
1.24.2006 1:48pm
Medis:
srg,

I think that gets back to the tension between two potentially incompatible accounts of the program.

One possibility is that this program was very limited and did not require a major change in the law, in which case it is at least arguably more plausible that Congress intended the 2001 AUMF to give the President the discretion to use such a program. Of course, one notable problem with this argument is that if the requisite legal changes were minor, then they could have been accomplished through the USA-PATRIOT Act, which seems to be Congress's latest and most definitive word on the subject.

The other possibility is that this program was so sweeping and so novel that Congress could not plausibly authorize it with just the sort of "technical" fixes of FISA in the USA-PATRIOT Act, and that any attempt to do so would tip off the terrorists about something they would not otherwise suspect. Of course, one notable problem with this argument is that the more sweeping and novel the program, the less plausible it is that Congress specifically intended to authorize such a program.

To be fair, the Administration seems to claim that in the second case, Congress need not have specifically intended to authorize such a program. As you suggest, they claim that once the President determined the program was necessary and appropriate, the 2001 AUMF became fundamentally incompatible with FISA in fact, even if in theory they could be read so as not to conflict.

Again, though, the problem with this line of reasoning is that when reading statutes it is the intent of Congress that governs, not the factual determinations of the President. So, it seems to me that this argument depends on a category mistake--FISA and the 2001 AUMF are not LEGALLY incompatible simply because in the President's view FISA is FACTUALLY incompatible with his authority under the 2001 AUMF.
1.24.2006 2:17pm
Just an Observer:
On a related matter, Sen. Graham made an interesting comment today at the Judiciary Committee meeting to vote out the Alito nomination:

I look forward to working with my colleagues on the other side and my chairman and ranking member to find a way to collaborate with the White House on the NSA issue. I am sympathetic to your concerns. I am very concerned that the war resolution is being interpreted overly broad. I think that is a legitimate concern for the Congress to have and I look forward to working with you.


This reinforces my expectation that the whole NSA controversy is headed toward some political compromise in the Senate. However strongly Democrats argue the charge that Bush broke the law, they are shy of being labeled soft on 9/11. Who wants to be against the President's "Terrorist Surveillance Program?"

Another reason I continue to expect a political compromise is that while Bush is happy to make his case in the Court of Public Opinion, the last place his lawyers want to make it is in the Supreme Court of the United States, where they know they would be spanked.
1.24.2006 2:21pm
srg (mail):
For a fascinating discussion of these issues, I recommend (in addition to Professor Kerr's original post)
http://www.fed-soc.org/pdf/domesticsurveillance.pdf
in which "two Federalist Society members (David B. Rivkin, Jr., partner in the
Washington, D.C. office of Baker &Hostetler LLP, Contributing Editor to
the National Interest and National Review magazines, and Member of the
UN Subcommission on the Promotion and Protection of Human Rights and
Robert Levy, Senior Fellow in Constitutional Studies at the Cato Institute)
pose and then answer questions about the administration's policy on
domestic surveillance."
1.24.2006 2:53pm
Apodaca:
VC commenters dissected the Rivkin-Levy debate last month, FYI.
1.24.2006 3:14pm
Medis:
JaO,

I'd also bet on some version of the "FISA--this time we mean it!" scenario being the next step in this process. And that may be enough to kill the issue, provided that the President (at least in public) goes along with such a compromise.

What could be interesting is if the President either does not go along with this compromise in public, or gets caught not doing so in private (a similar issue could arise out of the McCain Amendment--and arguably already did with the President's signing statement). Sadly, I have no great confidence that the next step would not be "FISA--no seriously, we mean it, we really really mean it!," and so on.

Still, one would think that at some point Congress would draw the line--but who knows? Maybe they would be just as happy playing out the clock.
1.24.2006 4:33pm
Just an Observer:
Medis,

I think the compromise would have two elements:

1) Some legislative language affirming that the 2001 AUMF cannot be construed to authorize such surveillance.

2) Some newly augmented authority and updating of FISA -- details to be determined. That is the hard part.
1.24.2006 5:51pm
Neal Lang (mail):
The PR offensive will gain polling points. PR offensive almost always do. That is why the case is being made in the Court of Public Opinion.

And just what "PR offensive" at that? The one sponsored by the "moonbat" Democrats?
However, the comments do nothing but damage to Bush's legal case if it ever gets into a real court.

Your point being what? That a any "judicial" result would be contrary to the "Court of Public Opinion" results. In affect - the judicary doesn't reflect the will of "the People". Just why do you consider "Court of Public Opinion" (the People's will) not to be a "real court"? In a democratic republic, the "Court of Public Opinion" is the only court that matters.
1.25.2006 2:33pm
Neal Lang (mail):
Gen. Hyden's remarks confirm what was common speculation here. That is, the principal reason the FISA courts were bypassed was that the program failed to meet the legal standard of probable cause.

Isn't that the very reason for the "Electronic Surveillance" - to develop the information required to establish "probable cause" to obtain a warrant?

Just what is the standard of "probable cause"? Isn't the true 4th Amendment purpose the "reasonableness" of the search? If your "legal standard" is that "reasonable" searches may not be made under FISA, then its "legal standard" would exceed that of 4th Amendment.

Now what is reasonable, with regards to "electronic surveillance" of "enemy agents"? Well say Marines in Mosel "liberate" the Blackberry of Abu Musab Al Zarqawi, and in its phone directory, the NSA discovers a US cell phone number on the "Speed Dial". (Raw combat intel.) Does the NSA have a reasonable cause to "surveil" the US phone number to determine if the "suspect cell phone" is used by a US terrorist cell leader or simply a "Used Camel" salesman from whom Al Zarqawi always purchases his camels.

Aside from "electronically surveillance" of the subspect cell phone number, there would be no possible way to develop sufficient "probable cause" to permit a FISA "search and seizure warrant" or "phone tap", etc. because the information available - the cell phone number from Al Zarqawi's Blackberry would permit completing a "probable cause warrant" application "particularly describing the place to be searched, and the persons or things to be seized".

Is it an "unreasonable search" to surveil the phone calls made from a cell phone whose number was on Al Zarqawi's "Speed Dial"? If so, why? Does an "enemy agent", during the time of war have a "reasonable expectation of privacy" for his "communications" involving his "mulitary operations"? If so, why?

The only other conclusion is that you would have the US do nothing with US cell number intel and suffer the consequences.
1.25.2006 3:36pm