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FISA and the DeWine Amendment:
Glenn Greenwald has an interesting post on a never-enacted 2002 amendment to FISA that was proposed by Senator DeWine. DeWine's amendment would have changed the law to be at least somewhat similar to the law that would justify the NSA domestic surveillance program. Greenwald's basic take is that DOJ refused to support DeWine's amendment in 2002, which suggests that the Administration could not have thought its NSA domestic surveillance program was necessary.

  I read less into the documents than does Greenwald, and wanted to explain why I'm not inclined at this point to share his conclusion. Greenwald's basic take is that DOJ's refusal to support the DeWine Amendment shows that the Administration did not need the NSA program. He writes:
[A]s of June, 2002 — many months after the FISA bypass program was ordered — the DoJ official who was responsible for overseeing the FISA warrant program was not aware (at least when he submitted this Statement) of any difficulties in obtaining warrants under the FISA "probable cause" standard, and for that reason, the Administration would not even support DeWine's amendment. If - as the Administration is now claiming - they had such significant difficulties obtaining the warrants they wanted for eavesdropping that they had to go outside of FISA, surely Baker - who was in charge of obtaining those warrants - would have been aware of them.
  There are three potential problems with this claim, I think. First, it's not obvious to me that the DOJ official in question, James Baker of the Office of Intelligence Policy and Review(OIPR), would have a complete picture of the NSA's needs. As I understand how the FISA process works, the OIPR is in charge of going to the FISA court. But individual intelligence agencies are not necessarily going to brief OIPR on their intelligence needs and whether they feel existing law is adequate. I would be happy to be corrected on this, but my understanding is that agencies don't give their intelligence to DOJ and ask DOJ to get warrants to do more monitoring; OIPR plays a much narrower role of obtaining warrants when the agencies believe that they have probable cause already. So whether Baker was in the loop about the NSA's broader needs is unclear to me. Perhaps he was, but that's not clear to me based on what we know.
UPDATE: In the comment thread, Marty Lederman (who would know much better than I) helpfully points out that James Baker's testimony to the Senate on the DeWine Amendment would have been internally reviewed and approved within the Executive Branch, including by the Office of the Vice President and the NSA. This doesn't answer whether the testimony showed a lack of need for the NSA surveillance, hints at a tactical decision not to reveal any cards on the issue, or something else, but I think it does indicate that Baker's statement is more than just DOJ's take on the Amendment. Thanks to Marty for the helpful point.
  Second, and relatedly, I don't read Baker's statement as a refusal to support the Amendment in the sense of a rejection of it. As I read Baker's statement, he doesn't take a position: he says that it raises a lot of difficult legal and practical questions, and that DOJ will contuinue to study those questions. If Baker was in fact out of the loop of the NSA's needs, that would make some sense: when he says that "we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations," that may be because having a practical picture of the effect in the standard is a bit beyond IPR's core mission. Greenwald seems to assume that Baker had the complete picture and was refusing to support the Amendment because he thought it wasn't needed, but it's not clear to me that this is accurate.

  I'm not sure about my third point, but I think it's at least worth flagging: the DeWine amendment was somewhat similar to the NSA program, but it wasn't precisely the same thing. For example, the DeWine amendment wouldn't have altered the rules for electronic surveillance under 18 U.S.C. 1801(f)(1), as that provision applies only when a U.S. person is target (and the DeWine amendment sets a different standard only when the person targeted is a non-U.S. person). Perhaps the FISA experts among VC readers can shed more light on this.

  UPDATE: For more on the controversy, see this article in the Washington Post.
Anonymous Liberal (mail) (www):
Professor Kerr,

Respectfully, I don't understand why the factual distinctions you raise in any way undermine Greenwald's basic point. First, your point about the DeWine amdendment not being co-extensive in scope with the current NSA program is something Greenwald dealt with at length in his post. The fact that the DoJ thought the DeWine amendment was constitutionally problematic eventhough it only changed the rules for non-U.S. citizens only underscores the dubious constitutionality of the current program, which applies to U.S. citizens as well. The same goes for the supposed practical necessity of the lower standard employed by the NSA program.

As for your suggestion that Baker might not have been "in the loop," doesn't that just beg the obvious question of why the administration would allow someone who was not "in the loop" speak on behalf of the administration regarding an important proposed amendment?

The bottomline is that the DeWine amendement presented the administration with an opportunity to bring FISA closer into line with the secret program that they had already initiated. But instead of supporting it, they allowed James Baker to issue a statement indicating that the amendment was of questionable necessity and questionable constitutionality. How can that be reconciled with the administration's argument for the necessity of this program? How can it be reconciled with their legal theory? This information strikes me a incredibly damning to the administration.
1.25.2006 6:50pm
Kovarsky (mail):
i just quickly looked up the amendment itself. i think it's surprising that greenwald would make this argument when, after looking at the amendment's specifics, it seems pretty clearly to cut AGAINST, not for, the president. i'll get into specifics below, but the purpose of the amendment seems pretty clear - to retain probable cause requirements for US Citizens and to lower the requirement to reasonable suspicion for surveillance targets that are not U.S. citizens. Look at S.2659 - this purpose is painfully obvious. Just skimming your summary of Greenwald's post (not his post itself), I'm inferring that somehow the DOJ's rejection of this program might amount to the belief that they already had this power with respect to U.S. citizens, so they didn't need to acquire it by statute (maybe I'm misunderstanding). That's an unintelligible reading of the statute - in every instance, the amendment toggles its requirements based on whether the surveillance target is a U.S. citizen or not. So, what the DOJ rejected was not an attempt to relax the requirement to "reasonable suspicion" for U.S. citizens, but to relax the requirement to "reasonable suspicion" for those that were NOT U.S. citizens. The DOJ's rejection of that amendment tells us nothing about the power the administration thought it had with respect to the former. Look at what I mean.

Section 1 of S.2659 (the amendment) does several things

first, it creates a 2 tiered submissions review for ELECTRONIC SURVEILLANCE: (a)(3)(A) continues to apply a probable cause requirement to U.S. citizens; (a)(3)(B) relaxes that requirement to "reasonable suspicion" for those that aren't.

although the text of the amendment says, for subsection (b), to insert "or reasonable suspicion" after "probable cause," that alteration is misleading when read in a vacuum. the subsequent language in subsection (b) incorporates the requirements in (a)(3) which, if you recall from above, as-amended would contain BOTH a probable cause AND a reasonable suspicion requirement, depending on the citizen status of the target. The phrase "probable cause or reasonable suspicion" is used to invoke whichever standard in the amended (a)(3) would be applicable. Of course this makes complete sense - why would a statute say that the applicant must show "reasonable suspicion or probable cause" unless the two standards referred to two different procedures - if they referred to the same one, the drafters would just leave out probable cause says the "reasonable suspicion" standard will always be satisfied with a smaller quantum of evidence.

subsection (e)(2) involves the duration of the order and, in the course of inserting the "reasonable suspicion" language, adheres to precisely the same U.S. citizen/non-U.S. citizen dichotomy as does (a)(3).



this might all sound complicated, but look at the statute as-written and as it would appear with the amendment. it's painfully obvious that all the amendment tried to do was relax the requirement for NON-US CITIZENS, retaining the "probable cause" standard for U.S. CITIZNES. What the Bush DOJ rejected, then, whatever their motives, had ABSOLUTELY NOTHING to do with the administration's authority to engage in the type of surveillance at issue in the present controversy.

I'm not sure what would motivate someone to make that argument - maybe they didn't read the statute (as I said, this is a very, very obvious reading) or maybe they were hoping other people didn't. The latter seems to be a pretty safe bet when it comes to these NSA arguments, though.
1.25.2006 6:58pm
Kovarsky (mail):
i said greenwald, i meant hayden...
1.25.2006 7:24pm
Just an Observer:
I don't think this legislation would have fully authorized what the NSA apparently has been doing de facto.

The bill would have lowered the standard from "probable cause" to "reasonable suspicion" only for non-U.S. persons. Nobody says the NSA, in the internal rules the executive branch now says it follows, does not apply that lower standard to citizens as well as to foreigners.
1.25.2006 7:40pm
David Sucher (mail) (www):
The interesting thing about this post is that if you get really, truly involved with an issue, and start getting into the details, and labor over every little comma, one can get 'analysis paralysis' and never be able to come to any conclusion except that you are flea on the back of an elephant.
1.25.2006 8:34pm
OrinKerr:
Anonymous Liberal writes:
As for your suggestion that Baker might not have been "in the loop," doesn't that just beg the obvious question of why the administration would allow someone who was not "in the loop" speak on behalf of the administration regarding an important proposed amendment?
No, I don't think so. I believe Baker is a career DOJ lawyer, not any kind of spokesperson for "the administration" as a whole. If you have information to the contrary, of course, I would be happy to hear of it.
1.25.2006 8:35pm
OrinKerr:
David,

I'm not sure what you're arguing. Can you explain your point a bit more?
1.25.2006 8:36pm
Anonymous Liberal (mail) (www):

I believe Baker is a career DOJ lawyer, not any kind of spokesperson for "the administration" as a whole.


This is what Baker said in his statement to Congress:


The Department of Justice has been studying Sen. DeWine's proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it. (emphasis added)
1.25.2006 8:59pm
OrinKerr:
Fair point. At the same time, to a DOJ career lawyer, "the administration" would presumably be a reference to DOJ as a whole rather than the entire executive branch.
1.25.2006 9:11pm
tokorode (mail):
Maybe I'm just being thick here, but hasn't it already been established that Bush's DOJ (namely, Ashcroft &Comey)was against this whole fiasco? To me, this is an obvious case (in a long list of such events) of Darth Cheney test driving his little experiment of absolute Presidential (read Cheney) power, even over the objections of the lower echelon of Bushies.
1.25.2006 9:14pm
TBryan (mail):
Professor Kerr,

I must confess that I'm an absolute layman to the legal intricacies of the FISA amendments, but on your last point you seem to indicate that a possible rejection by DOJ of the DeWine amendment was because it would only apply to non-US persons that were targets of FISA warrants. If that was the case, why would the DOJ not welcome any attempt by the Congress to lower the standard to "reasonable suspicions", even if it was related to non-US persons? Is the probable cause requirement applicable to both US and non-US persons?
1.25.2006 9:42pm
Anonymous Liberal (mail) (www):

Fair point. At the same time, to a DOJ career lawyer, "the administration" would presumably be a reference to DOJ as a whole rather than the entire executive branch.


But how is that any different? Surely the DOJ knew about the secret NSA program. So even if Baker was not "in the loop," why would John Ashcroft (and whoever else knew about program) have allowed Baker to say the things he said? And for that matter, why would they have opposed the DeWine amendment? And even if Baker is just "a DoJ career lawyer," isn't the fact that he was intimately familiar with how FISA worked and the related constitutional issues significant in and of itself? He clearly knows a lot about these issues and at the time--well after the secret program was implemented--he expressed doubt about both the necessity and consitutionality of the DeWine amendment, which didn't go nearly as far as the spying that was already underway.
1.25.2006 10:16pm
Apodaca:
In two separate comments, Orin writes:
I believe Baker is a career DOJ lawyer, not any kind of spokesperson for "the administration" as a whole.

[T]o a DOJ career lawyer, "the administration" would presumably be a reference to DOJ as a whole rather than the entire executive branch.
I think this is incorrect, or misses a crucial point, in two distinct respects.
First, "the Administration" doesn't mean "my agency." High-level federal officials (and Baker is in the elite Senior Executive Service) know the difference.

On this point, let's not forget that Baker's testimony -- like all testimony delivered by Executive Branch officials -- had to be reviewed and approved by an arm of the White House (OMB). You can be damn sure they don't let pass an alleged statement of "Administration" position unless it really has the White House imprimatur.

This brings me to my second point: Even assuming Baker was (as of 2002, anyway) ignorant of the NSA program, the White House wasn't. On the contrary, the White House vetted and approved Baker's testimony. Thus, if Baker was testifying blind, it's because the White House allowed him to do knowing exactly what he would say, and knowing it to be inconsistent with the truth.

Where I come from, that is not the stuff of exoneration.
1.25.2006 10:20pm
Wintermute (www):
I think the spokesman was in the dark, else the statement was really devious. The statement is nonetheless newsworthy, no matter how hedged.

The problem with non-judicially supervised eavesdropping is that there is no inter-branch oversight in making a determination of what searches (electronic eavesdropping) are "reasonable". Congress rejected that approach through FISA when it got out of hand under Nixon.

A lower standard might be tolerable for incoming foreign communications from those reasonably suspected to be plotting an unlawful act, whereby resulting communication by the US person on the receiving end is incidentally acquired and sufficient to target that US person under a probable cause standard; but the question still arises why 72 hours is not enough. Is not such an after-applied warrant retroactive? If not, what would be the problem making it so, both for surveillance and prosecution? I might even say that silence on the receiving end could be very suspicious; but then I suppose someone could send Orin an email from a foreign mail server saying "Tomorrow is the day" and get him on all sorts of watch lists and active surveillance. A warrant might still be issued under suspicious enough circumstances, but it should be required, even if after the fact of emergency surveillance.

I think the American people need to be sold both on what is to be allowed and who is providing effective oversight. The technology that permits invasion of privacy for domestic surveillance is so powerful now that we're going to have to deal with the new issues in enough of an above-board manner to satisfy a large majority of our citizenry, through their elected representatives, because these capacities will be abused in the course of time if they can be abused. Bush's claim that the details of method can't even be revealed to and examined by the standing committees of Congress, let alone packaged in a convincing way to the American people, creates distrust.

Frankly, I'm not scared enough of terrorism to surrender my liberty and privacy to this degree, especially to an executive branch that has done business the way this one has. Sorry for the long post.
1.25.2006 10:30pm
M. Lederman (mail):
Orin: Baker wasn't speaking for OIPR here, or on his own -- he was speaking for the Department ("I welcome the chance to provide the views of the Department"; "I thank the Committee for the opportunity to present the views of the Department"). And, as you and I know, his testimony would have been scrubbed inter-agency, through OMB, by all affected entities and agencies, including OVP and NSA. So, this was a careful, Administration-sanctioned delaying mechanism.

Moving on to the mystery: Why was DOJ so hestitant about embracing DeWine if it was already approving a program going far beyond DeWine? If I understand Greenwald correctly, he surmises that the Baker testimony reveals doubt by DOJ about whether "reasonable basis" searches of non-U.S. persons would be lawful, and he reads the reticence about supporting DeWine as evidence that DOJ did not think the authority already existed.

I have a different theory: It was a holding pattern -- a feint. The *last* thing DOJ wanted was a statute such as DeWine, because that would *undermine* the secret theory on which they were already relying for the NSA program. I think what the Baker "we're still looking at it" testimony shows is that:

(i) the Administration knew that it could not get Congress to actually *agree* to provide statutory authorization for the entirety of the new NSA program;

(ii) the Administration did not want Congress to enact half-a-loaf (the DeWine Amendment) -- both because such a request would undermine the absurd "AUMF has already authorized it" argument DOJ was holding in abeyance, and because then there would be no justification for the much more aggressive components of the NSA program, which DeWine would not authorize; and

(iii) above all else, the Administration did not want Congress's *previous* statutory amendment to FISA -- you know, the one Congress had already enacted in the AUMF -- to become publicly known and thus subject to debate and (worst of all) court review, because in that case they might actually be confronted with a court decision invalidating what NSA has been doing (or Congress denying that it had authorized any such program).

That is to say, it was essential that no one -- not even the legislators voting for the AUMF, and those considering the DeWine Amendment -- realize that Congress had already provided such authorization and that, unbeknownest to Congress, a huge hole had secretly been driven through the heart of FISA.

Hence, the "we'll get back to you after we've painstakingly examined your legislation" testimony.
1.25.2006 10:45pm
Kovarsky (mail):
who in the administration, do you think, made the tactical mistake of calling attention to this amendment? on the one hand, this is way too clumsy to be rove, on the other, could there possibly be anybody else in the administration orchestrating the spinning points on this?
1.25.2006 10:56pm
Just an Observer:
FYI, this story is getting play in tomorrow's Washington Post: White House Dismissed '02 Surveillance Proposal
1.25.2006 10:56pm
Kevin Murphy:
M Lederman is pretty close to it, I think. The worst thing that could happen, from the administration's POV, is for a high-profile bill to be defeated that intended to authorize what they were already doing. As long as the question did not come up again in Congress, they could point to the AUMF or to ambiguities in other law, etc. IF it did come up, they'd ahve to be damn sure it passed, and they probably didn't have the votes.
1.25.2006 11:07pm
Apodaca:
OK, here's one for the ages:
The FISA 'probable cause' standard is essentially the same as the 'reasonable basis' standard used in the terrorist surveillance program," said spokeswoman Tasia Scolinos, using the term for the NSA program the White House has adopted. "The 'reasonable suspicion' standard, which is lower than both of these, is not used in either program.
If Tasia Scolinos can point to a single court decision (or even a reputable, nonpartisan legal scholar) equating "probable cause" with "reasonable basis," I'll eat my hat, belt, and shoelaces.
1.25.2006 11:08pm
CrazyTrain (mail):
Marty hits the nail on the head.

Orin, one day I wish you would come out and say what I know you know deep down inside: this administration is an affront to all who love our constitution and the American values which we were all taught -- that no man is above the law, that all are innocent until proven guilty, that a government of the people by the people shall be a transparent government, and that the people have a right to be free from being sypied on by the government. Taking Bush's arguments to their logical extreme, you and Professor Volokh will be out of jobs soon, because the only law we need to know is the President is supreme interpreter of the law, and when he has unilateral discretion to break it if he believes it will protect us in war. Orin, you have given the administration the benefit of the doubt for too long -- it's time to come out and admit it: as their ever-changing and inconsistent justifications for the domestic spy program reveals, Bush, Cheney Gonzalez and company have given all free-thinking people the impression that they are up to no good. The burden is now on them to prove otherwise, as it is they that want to take away our hard-won freedoms.

I used to argue at length with my more left-leaning friends who insisted that the government is doing this and that covert, bad thing without our knowledge. Now I read from prominent conservatives that they always knew that the government was surveilling us all along and anyone who assumed otherwise was a naive schmoe. As Instapundit keeps trying to say, this is no big story in light of that. Well, to me it is a big story, because I was duped. I believed in all that stuff about the government abiding by the law; That the government -- whether Democrat or Republican -- would not lock up citizens and throw away the key, and lie to the courts about why it did it for four years, only to essentially say it was all a big mistake.

The Constitution has jumped the shark.
1.25.2006 11:15pm
Anonym (mail):
James Baker was in no way, shape, or form "out of the loop." For purposes of assessing NSA compliance with federal law, he is the loop. Here is his job description, from the DOJ website (http://www.usdoj.gov/oipr) (emphasis added):


The Office of Intelligence Policy and Review, under the direction of the Counsel for Intelligence Policy, is responsible for advising the Attorney General on all matters relating to the national security activities of the United States. The Office prepares and files all applications for electronic surveillance and physical search under the Foreign Intelligence Surveillance Act of 1978, assists Government agencies by providing legal advice on matters of national security law and policy, and represents the Department of Justice on variety of interagency committees such as the National Counterintelligence Policy Board. The Office also comments on and coordinates other agencies' views regarding proposed legislation affecting intelligence matters.

The Office serves as adviser to the Attorney General and various client agencies, including the Central Intelligence Agency, the Federal Bureau of Investigation, and the Defense and State Departments, concerning questions of law, regulation, and guidelines as well as the legality of domestic and overseas intelligence operations.


Any statement to Congress by Baker regarding the legality of US govt communications intercepts -- especially one in which he purports to speak for the "administration" (as noted in a prior post) -- is the definitive view of the US Executive Branch, unless and until a more senior official says otherwise.
1.25.2006 11:32pm
Anonymous Liberal (mail) (www):

the Administration did not want Congress to enact half-a-loaf (the DeWine Amendment) -- both because such a request would undermine the absurd "AUMF has already authorized it" argument DOJ was holding in abeyance, and because then there would be no justification for the much more aggressive components of the NSA program, which DeWine would not authorize


Mr. Lederman,
One question about your theory. The Patriot Act--which made a number of important amendments to FISA--was passed by Congress and signed into law by the president subsequent to the AUMF. So the DeWine amendment was not the first post-AUMF amendment to FISA. Why would passage of the DeWine amendment have undercut the AUMF authorization argument any more than the passage of the Patriot Act already had? In other words, the administration's AUMF argument already sucked by the time the DeWine amendment was proposed, so why not just let it through?

I suspect that the answer to this question is that the administration's real worry was not that the DeWine amendment would pass and undermine their argument; their real concern was that the amendment wouldn't pass, and Congress would be on the record slapping down a proposal that was far less drastic than what the administration was already secretly doing. That would have been bad.
1.25.2006 11:37pm
M. Lederman (mail):
Anon. Lib. — Yes, of course you're right that they may have been concerned about DeWine *not* passing. But even if it passed, it would have spoken much more *directly* to the standards for the things the NSA was already doing — something that's not true, as far as I know, about the PATRIOT Act.

In any event, they wanted the PATRIOT Act, it turns out, *not* in order to better fight Al Qaeda — the AUMF already gave them all the authority they needed for *that,* they assert — but in order to fight against *other* terrorist groups unconnected to 9/11. In other words, the PATRIOT Act was not really needed in order to respond to 9/11 — or that's how I read footnote 13 of the DOJ Memo, at any rate. See this story in the Boston Globe today:

http://makeashorterlink.com/?W2483288C
1.25.2006 11:48pm
Omar Bradley (mail):
I wonder where our good friend Sammy will come out on this if it ever reaches the SC?

Even with him, as long as Breyer, Ginsburg, Souter, Stevens, and Kennedy are on the bench the WH will lose any of the arguments in this matter. Even Nino seemed to have had his fill of it in the Hamdi case. The icing on the cake would be an 8-1 slapdown with Thomas in dissent, although I think the more likely outcome is a 5-4 defeat for the WH, perhaps 6-3 if Nino joins.
1.25.2006 11:56pm
KMAJ (mail):
Conspiracy theory is always interesting, good for conversation at a coffee klatsch, but after a while, the black helicopters whirring around one's head gives one a headache. Searching for bogeymen under one's bed or ruminating about smoke-filled backroom cabals makes for a good fiction novel. Other than that, it is worthless, except for fanning the flames of ideologues. Why is it necessary to try to crystal ball nefarious thought processes into something where it may have been determined it was simply a bad amendment or an unnecessary one.

Anyone who read the DoJ white paper would know the DeWine amendment was worthless and irrelevant to their position on which they had set up the NSA surveillance. As it was presented after the NSA program was started, it was, in all likelihood, seen as a hindrance and not a loosening, but a tightening of FISA standards. It is absurd to think that any executive branch would support any amendment that would curtail their ability to carry out their constitutional obligation to protect and defend.
1.26.2006 12:04am
Dodd (mail) (www):
He doesn't rule out the possibility that they will eventually support it. He just says they aren't ready to yet. The concern expressed by Baker is that if the statute was amended to allow for "reasonable suspicion" warrants, any prosecutions that resulted from those warrants would be put "at risk" if the court found the standard on which they were issued too low. As we all know, they sought record numbers of FISA warrants for ongoing surveillance of known persons.

Those are different concerns from detection and interdiction. The NSA program was much narrower and was not intended to lead to prosecutions, just identification in real time. As decribed by Gen. Hayden, the NSA program he ran was not intended to produce evidence for criminal prosecutions but, rather, to enable "hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda." Possible IDs (presumably from intra-US calls) were, as we've all been told over and over again, turned over the the FBI for follow-up (the "calls to Pizza Hut" data dumps). Hayden uses the phrase "hot pursuit", but that's not the only exception to the Warrant requirement that could apply here (hard to say for sure on any of this given how little we can know about how the program works).
1.26.2006 12:38am
OrinKerr:
Helpful comments, all; I'm writing an update now.
1.26.2006 12:49am
Omar Bradley (mail):
That to me is what the argument is about. I think in a law enforcement/legal setting the program is clearly illegal. If they were using it to gather evidence to prosecute someone or enact proceedings against them, the evidence would be thrown out.

However, to my knowledge that isn't what they're using it for. They're using at part of a war-fighting operation. And in war there's a whole different set of rules. For example, due process of law does not apply. Miranda does not apply. The President doesn't need a warrant or court approvaal to order a bombing run in Mosul or a missile strike in Pakistan or whatever.

So, the WH says this part of the war. That the Theater includes CONUS, and therefore the courts have no say and this is extrajudicial. This is somewhat new in that war that took place domestically was in 1861-1865 and before that 1812. There's not really a lot of precedent. Youngstiwn wolud seem to apply but CONUS was not part of the theater. If there were concerns that he North Koreans or the Chinese were operating in the US and threatening sabotage of the steel mill, I bet the decision would have come out the other way. As it was, it was 6-3, not exactly overwhelming.

If you read Korematsu, Jackson provides support for this position when he notes that the internment program was unconstitutional but the Judicial Branch has no real authority over the miltary in war time.

Here's what he says:

In the very nature of things military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint

and:

I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy. [323 U.S. 214, 248] Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.

IOW, things of military nature(as the ww2 detention order and the 2006 NSA program) really are military and occur outisde of the judicial system. The courts aren't equipped to handle them and it's not their business to do so. As long as the govt never uses the info from the program in a court and introduces it in to the judicial system, the courts should stay out.

In Korematsu, the govt made the mistake of taking the case to the district court and hence involving the judicial system. once that happened Jackson said that he courts must deal with it. If the govt had decided to merely bug all the japanese citizens phones and use it to aid in wartime intel and operations planning, and never prosecuted anyone in court, he probably would have upheld that.

Frankfurter's concurrence and Black's opinion are also on point here. Black, Douglas, and Frankfurter were no conservatives, they were all liberal new dealers and yet they still upheld the conviction. Of course, Korematsu has since been discredited so the WH would never use it, but I think the opinions expressed do apply to the current issue.
1.26.2006 1:43am
Omar Bradley (mail):
So, I don't think this would stand if the govt used evidence from it to convict Padilla in his upcoming trial in civil court. The proceeding in civil court I think is a key element in the constitutionality. If used that way it's highly questionable. If used as part of war-fighting with no introduction to the civil court/justice system, it'd be tougher to invalidate.

So, if they use it to aid in ops overseas like the recent strike in Pakistan or in going after other AQ leaders abroad, or build itel on AQ activities and members in a data-minig type deal, or they use it to say bust up an AQ cell or plot in the US, or have the FBI or some special ops team take someone out then it's a tougher question and one I think a judge would be hesitant in striking down.
1.26.2006 1:58am
Defending the Indefensible:
If I'm understanding the legal argument now, the administration holds that:
  • The US is at war;

  • The continental US is one theater of that war;

  • Congress has authorized the use of military force in every theater;

  • Espionage is a traditional and accepted incident of military force.

Therefore, the administration is within its authority to wiretap communications in the continental US.

Granting this argument as correct, what reason does the administration then have for trying to discriminate between calls which have a foreign connection, and wholly domestic calls between persons, one or more of whom may be suspected "enemy combatants."

How deep might this rabbit hole go?

It is also a traditional and accepted incident of war to use actual force, to capture or kill the enemy. Res ipsa loquitur. No warrants are necessary, and probable cause is not required. A reasonable belief is quite sufficient. If the continental US is a theater of war, then there is no legal constraint against military action against "US persons" (citizens or otherwise) suspected of being enemies of the state.

The administration's legal argument then boils down to martial law.
1.26.2006 2:16am
minnie:
CrazyTrain: Really GREAT post!

M. Lederman: In any event, they wanted the PATRIOT Act, it turns out, *not* in order to better fight Al Qaeda — the AUMF already gave them all the authority they needed for *that,* they assert — but in order to fight against *other* terrorist groups unconnected to 9/11.

Yeah. PETA is the real terrorist threat. Can't have people running around who undermine the Kansas Beef Industry, one of the main subjects of Bush's latest speech, can we? And don't forget those commie traitors, the CATHOLIC WORKERS.....
1.26.2006 2:37am
OrinKerr:
Minnie,

I have deleted your post, as I am sure you can find a better forum to attack me as an "apologist" who does not deliver "the real truth." The URL www.orinisanapologist.blogspot.com is available, I believe.
1.26.2006 2:40am
Omar Bradley (mail):
Defending,

To a great extent it does. However, there are checks. The Congress can cut funding at any time. The Congress can make laws concerning capture. There are congressional elections every two yrs. The people have a constitutional right to change their govt at any time(one of the reasons for the 2nd amendment). The military can refuse orders. There are other avenues the people have besides the judicial system.

However, during the Civil War, the last real domestic war, there was Martial Law to some extent. I'd be interested to find out more about what happened during the war of 1812.
1.26.2006 2:53am
minnie:
Since Orin deleted my last post, I will confine myself to saying that it is a little unnerving to read someone knowledgeable write that maybe James Baker was out of the loop. As someone pointed out, James Baker was the loop.

I hope Orin's "updates" will contain a revised outlook on this issue which, thankfully, Glen Greenwald brought out into the open and Crazy Train and M. Lederman spoke to eloquently.
1.26.2006 2:55am
OrinKerr:
Minnie,

If you reload the main page, you'll see that I already had added an update. The point you objected to has been crossed out.
1.26.2006 2:59am
Defending the Indefensible:
Omar,

I'm not sure whether I should be pleased or concerned you agree that the administration's argument comes down to martial law.

I think it really does, too.

While, as you point out, the Congress may have some options such as laws regarding capture and funding restraints, they are fairly limited and cannot properly interfere with the executive's prosecution of the usual incidents of war. Fundamentally, I don't think Congress is aware that martial law is being invoked (assuming that we're correct that it is).

I'm understating my concern quite a bit when I say that I don't much care for martial law, and I do not believe that the events of September 11, 2001, or anything prior or subsequent, justify domestic military rule.

I'm sure there are some who feel otherwise, but regardless of where we may each stand, I think we should get it out in the open where it belongs.
1.26.2006 4:22am
Defending the Indefensible:
Omar,

What do you think are the implications of Ex Parte Milligan 71 U.S. 2 (1866) to the administration?
1.26.2006 4:43am
Defending the Indefensible:
The Court in Ex Parte Milligan wrote:
Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.
If the administration's justification for its warrantless wiretapping authority is such as arises out of martial law powers in the theater of war, isn't this fatal to that justification?
1.26.2006 4:56am
Just Wondering:
M. and Anon. Lib.,

I don't think the Administration came up with its grand theory about the AUMF right away; that's something that evolved once it noticed its theory about plenary "war president" power wasn't attracting quite the deference it had hoped. The breadth of the authority granted was first argued (I think) as a rebuttal to the argument in the Padilla case that Congress had precluded the detention at issue when it passed the non-detention act. That argument worked in Hamdi (which is really a much different case from Padilla since it involved a person captured on an actual battlefield), so the government seeks to expand on it, primarily by ignoring any language in Hamdi that limits its scope.

Omar,

Korematsu only expressly upheld the curfew and a law passed by Congress to prosecute violators. It didn't reach the internment. That was shot down by Ex parte Endo, in which the Court found Congress had not authorized the internment program, despite its having declared war and voting to pay for the internment camps and their administration.
1.26.2006 6:53am
Defending the Indefensible:
Given the likelihood of Alito's confirmation to the Supreme Court, notwithstanding the concerns I have expressed, I think there was a very telling dialogue with Senator Graham regarding Milligan:
GRAHAM: For those who are watching who are not lawyers, generally speaking, in all of the wars that we've been involved in we don't let the people trying to kill us sue us. Right? And we're not going to let them go at an arbitrary time period if we think they're still dangerous because we don't want to go have to shoot at them again or let them shoot at us again. Is that a good summary of the law of armed conflict?

ALITO: I don't know whether I'd put it quite that broadly, Senator. The precedent that you -- the Johnson v. Eisentrager, of course, has been substantially modified, if not overruled. Ex Parte Quirin, of course, is still a precedent. There was a lower precedent involving someone who fought with the Italian army. And I can't remember the exact name of it. And that was the case that I thought you were referring to when you first framed the question. But those are the precedents in the area. Then, if you go back to the Civil War, there's Ex Parte Milligan and a few others.

GRAHAM: We don't have to go back that far.
(LAUGHTER)

ALITO: Well, in this area...

GRAHAM: Well...

ALITO: ... it's actually instructive to do it....
1.26.2006 9:45am
Preferred Customer:
Defending writes:

It is also a traditional and accepted incident of war to use actual force, to capture or kill the enemy. Res ipsa loquitur. No warrants are necessary, and probable cause is not required. A reasonable belief is quite sufficient. If the continental US is a theater of war, then there is no legal constraint against military action against "US persons" (citizens or otherwise) suspected of being enemies of the state.


This comes down to a line-drawing problem. I don't think anyone would doubt, on the morning of 9/11, that if an F-16 or F-15 had been able to get into position to shoot down the plane that crashed in Pennsylvania, the President and military would have been well within their rights to order that plane shot down, even though that certainly would have resulted in the deaths of American citizens.

At the same time, I (hope) that it would deeply trouble people if, instead of arresting the Oregon lawyer who was mistakenly implicated in the Madrid bombings, the military had sent a covert team to his home and either a) imprisoned him without trial, or b) simply killed him.

What's the principled legal line between those two situations? Where does the NSA surveillance fall on that spectrum? Are we necessarily left, given the difficulty of drawing these lines (as some posters suggest), with nothing more than trust in the restraint of the military and executive?

I don't pretend to have the answers--but I am very glad the questions are being discussed.
1.26.2006 9:53am
Preferred Customer:
Eh, on rereading I note that I unintentionally left a big difference between my two examples. Instead of the Oregon lawyer, imagine a situation where a tip from an informant suggests that John Smith, American citizen, might be very close to committing an act of terror. I assume that we would all be uncomfortable with the idea of going to his house and shooting him.
1.26.2006 9:57am
farmer56 (mail):
Hey!

This is not a Judacriscy.??

Every single point listed in the above posts can in a very simple process,,,can put a bill up for a vote. WHY? look to the juciciary for relief? When? Only Congress can make the law?
1.26.2006 10:04am
af -- other one:
your "third point" is actually the important one -- the Dewine amendment has nothing to do with international communications. Thus, the constitutional concerns are completely distinct, so there is nothing strange about questioning the amendment's constitutionality (given that it does actually attempt to lower the 4th amendment standard for communications wholly within the US plainly covered by the 4th). Additionally, one cannot say that opposing it is in any way inconsistent with supporting the NSA program.
1.26.2006 10:12am
Anderson (mail) (www):
The URL www.orinisanapologist.blogspot.com is available, I believe.

LOL! That's 3 for Prof. Kerr this week! At this rate, he can quit his day job &hit the legal comedy circuit.
1.26.2006 10:46am
A.S.:
"af -- other one" has it exactly right. The most important point is Orin's third. And that point - that the DeWine amendment is focussed on a distinction between US Persons and non-US persons, and that distinction has nothing at all to do with the NSA program.

Greenwald apparently believes that the DeWine amendment is more narrowly tailored the NSA program, and thus the rejection of amendment is significant with respect to NSA program. He writes: "DeWine's FISA amendment was much, much less draconian than what the Administration was already secretly doing (i.e., lowering the evidentiary standard but (i) eliminating judicial oversight, and (ii) applying these changes not just to non-U.S. persons but also to U.S. persons). Thus, Congress refused to approve -- and the DoJ even refused to endorse -- a program much less extreme and draconian than the Administration's secret FISA bypass program."

Greenwald is simply wrong.

The DeWine amendment applies a lower standard to non-US Persons, but not to US Persons. This is NOT more narrowly tailored than the NSA program. Applying a lower standard to US Persons for all purposes under FISA would lower the standard for surveilling purely domestic communication. And, of course, the NSA program does not surveil purely domestic communication - even if the communication is between two Non-US Persons.

THAT is the reason that the DeWine amendment was likely unconstitutional - because it would lower the FISA standard for a purely domestic communication between two Non-US Persons... which is a situation that I think is expressly covered by Keith's warrant and probable cause requirement.

Instead, the NSA program surveils ONLY INTERNATIONAL COMMUNICATION, and may not monitor purely domestic communication. This is the important limiting factor for the NSA program, not whether it was a US Person or a Non-US Person who made that international communication. Thus, the NSA is much, MUCH more narrowly tailored than the DeWine amendment was.

Accordingly, Greenwald's analysis is simply wrong.
1.26.2006 10:59am
Anonymous Liberal (mail) (www):
A.S.,

You seem to place a lot of significance (as does the Bush administration) on the supposed fact that the NSA program only intercepts international calls. So I want to echo a question that a commenter at my site has asked repeatedly:

What about the Bush administration's legal arguments requires that the program be limited to only international calls? The arguments they are advancing in support of the program would seem to allow purely domestic interceptions as well. I don't see the logical limiting principal. Under their theory of executive power, isn't the limitation to international calls simply a matter of executive discretion. Couldn't Bush or a future president decide to expand the program to cover purely domestic calls?
1.26.2006 11:26am
Defending the Indefensible:
Preferred Customer:

This comes down to a line-drawing problem. I don't think anyone would doubt, on the morning of 9/11, that if an F-16 or F-15 had been able to get into position to shoot down the plane that crashed in Pennsylvania, the President and military would have been well within their rights to order that plane shot down, even though that certainly would have resulted in the deaths of American citizens.
I think Milligan drew that line, and the immediacy of your example would be one meeting the standard that:
"...on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course."
However:
"As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power."
1.26.2006 11:31am
JunkYardLawDog (mail):
I've got several questions on this and related matters that I would love to have answered by those here more learned than I on these statutes and the constitution.

1. The DeWine amendment was to affect only NON-U.S. Persons. I thought FISA didn't cover NON-U.S. Persons at all. Does FISA cover surveillance on NON-U.S. Persons and to what extent, if so???


2. Section 1811 of FISA provides:

Authorization during time of war:
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.

Question: It strikes me that this sentence is rather inartfully worded. It seems from just a bare reading of the sentence that the sentence could have a couple of possible meanings as follows:

A. That the President has a single 15 day period that begins upon the declaration of war and ends 15 days later to authorize wiretaps without court order, and those wiretap authorizations are not limited as to time or specificity of the persons or places to be surveilled. In other words during that 15 day period the President could authorize surveillance of all suspected Al Qaeda communications anywhere in the world for the entire duration of the conflict.

Comments or explanations why this is not the proper meaning of section 1811??

B. Or, does 1811 mean that the president has the authority to conduct surveillance without warrants after a declaration of war and the President can issue such authorizations throughout the entire duration of the war, but each such authorization must be limited to a 15 day period.

Comments or explanations why this is not the proper meaning of section 1811??


3. Section 1801 of FISA provides:

Definitions
f) ''Electronic surveillance'' means - (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18; (3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.


Questions:

A. Can it be accurately alleged that the target of an Al Qaeda linked call to or from a U.S. Person is the Al Qaeda linked person(s) and therefore the surveillance of the U.S. Person is merely incidental and therefore the USA person is NOT a target of that specific surveillance and FISA doesn't apply (at least not until a decision is made from the incidental surveillance causes a decision to actually target such U.S. Person.)?

B. The requirement of reasonable expectation of privacy is an interesting one in this context. At a time of war can it be reasonably argued that any U.S. Person making contact with people outside the USA, who may be connected to the enemy, has no reasonable expectation that such conversation will NOT be monitored by the NSA?

C. A slight variation on question B. Given how the liberals in favor of the traitorous law breaking that took place in revealing this NSA surveillance program, by claiming loudly and often that the leak did no harm to the USA because the enemy and their affiliated/associated personnel already knew their conversations were being monitored, can it then be reasonably argued then that since such persons already knew (according to all liberals) from day one of the war that their phone calls, etc. were going to be monitored that these particular U.S. Persons therefore had no reasonable expectation of privacy and FISA doesn't apply? I mean if a U.S. Person knows their communications are going to be monitored or they have strong reason to believe that they may be monitored, can they really have any expectation of privacy, much less a reasonable one?

Thanking everyone in advance, expecially the law faculty here who may take the time to address the above questions.

Says the "Dog"
1.26.2006 12:07pm
Wonderland (mail):
With regard to points raised by A.S., AL, and others above, albeit tangentially:

I have been one of the people commenting on a number of blogs for the purpose of hammering home the following point:

If we accept the administration's legal arguments about the AUMF/Article II and their effects on the applicability of FISA, and allow this NSA program to continue as is, then domestic surveillance is a done deal. The administration has never advanced, let alone accepted, any legal principle that would limit its ability conduct surveillance of purely domestic communications.

It's my reading of FISA that so long as a US person inside the US is targeted, FISA does not contain any language distinguishing between communications that end in other countries and those that end in the US -- therefore, the legal limitation cannot come from that law.

Some have forwarded "border search" or "special circumstances" arguments that attempt to establish a limiting principle based on either (a) the 4th amendment's reasonableness standard or (b) FISA's language requiring targeting persons to have a reasonable expectation of privacy. But I am aware of no precedent that supports the view that person making an international call, say, from his home, has any lesser expectation of privacy or lesser 4th Amendment protections than a person making a domestic call.

In all, I think the best way for those of us who oppose the Administration's on the NSA issue should frame this debate as whether it should have the legal authority to conduct surveillance of purely domestic calls. Because no matter how you cut it, their legal arguments inevitably lead to that result. If the legal authority is there, as they say it is, then domestic surveillance will happen. It's only a matter of time.
1.26.2006 12:13pm
A.S.:
What about the Bush administration's legal arguments requires that the program be limited to only international calls? The arguments they are advancing in support of the program would seem to allow purely domestic interceptions as well. I don't see the logical limiting principal. Under their theory of executive power, isn't the limitation to international calls simply a matter of executive discretion. Couldn't Bush or a future president decide to expand the program to cover purely domestic calls?

Under the Keith decision, wouldn't that purely domestic surveillance require a warrant under the 4th Amendment?

I don't think there is anything FISA related (or AUMF related) that would prevent the NSA program from applied to purely domestic communication. The limitation is, rather, under the 4th Amendment.
1.26.2006 12:16pm
Anonymous Liberal (mail) (www):
A.S.,

I think your reliance on the Keith case is misplaced. Here's what the Court said in Keith:

Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." There is no evidence of any involvement, directly or indirectly, of a foreign power. (emphasis added)
1.26.2006 12:54pm
A.S.:
But isn't the point that we don't necessarily know that (i.e., have probable cause to believe), or at the very least it is too difficult (given time constraints or whatever) to show that, these are "the activities of foreign powers"?

As Hayden said, why do you think they are not using the FISA warrant process? To avoid paperwork?

To use the NSA program for purely domestic activities, you would need to be able to show that you had probable cause to believe that you are targetting solely "the activities of foreign powers". But if you could do that, you could go get the FISA warrant anyway.
1.26.2006 1:21pm
Just an Observer:
A.S.,

The "domestic" distinction in the Keith case did not refer just to the location of the surveillance, but to the type of crime being investigated -- domestic subversion, in this case a bombing by a U.S. radical group. The court rejected the Nixon adminstration's claim that because "national security" was involved, there was no warrant needed. The court said a warrant (an ordinary Article III warrant) was required.

In making the ruling, the court distinguished between such domestic subversion cases and other situations involving foreign powers and their agents. The court left that outside the scope of its ruling and suggested that Congress might choose to legislate in the field.

A few years later, Congress did so when it enacted FISA.
FISA repealed the 10-year-old provision deferring to the executive in foreign-intelligence surveillance, and substituted the regimen of FISA courts and special warrants.

FISA can apply to whether one side of the communication is outside the country or not.
1.26.2006 1:26pm
Just an Observer:
A.S.,

The "domestic" distinction in the Keith case did not refer just to the location of the surveillance, but to the type of crime being investigated -- domestic subversion, in this case a bombing by a U.S. radical group. The court rejected the Nixon adminstration's claim that because "national security" was involved, there was no warrant needed. The court said a warrant (an ordinary Article III warrant) was required.

In making the ruling, the court distinguished between such domestic subversion cases and other situations involving foreign powers and their agents. The court left that outside the scope of its ruling and suggested that Congress might choose to legislate in the field.

A few years later, Congress did so when it enacted FISA.
FISA repealed the 10-year-old provision deferring to the executive in foreign-intelligence surveillance cases, and substituted the regimen of FISA courts and special warrants.

FISA can apply to whether one side of the communication is outside the country or not.
1.26.2006 1:28pm
Preferred Customer:
Defending wrote:


I think Milligan drew that line, and the immediacy of your example would be one meeting the standard that:

"...on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course."

However:

"As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power."


I think that it is certainly true that, where military activities are so severe that civil authority has broken down, it is both the right and the responsibility of the executive (through the military) to safeguard and defend people, society and property against both foreign attack and disorder (e.g., looting).

But I don't think that can be the *only* place where we would tolerate military intervention. After all, the 9/11 attacks were vile, but they never really threatened a breakdown in civil authority, and future attacks (like the London or Madrid bombings) may be even less wide-reaching in scope.

It seems intuitively correct to me that where there is a clear threat to life and property *that the military is uniquely qualified to respond to*, it is the duty of the President and the military to take the action necessary to negate that threat. That encompasses things like shooting down airplanes that might not be encompassed by the Milligan line.

The question, though, is how attenuated does the threat have to be, especially knowing that an ounce of prevention is worth a pound of cure? And, perhaps more importantly, whatever line we draw, how do we hold the President and military to that line? Where is the oversight? This is the question that Korematsu wrestles with, I think unsuccessfully.
1.26.2006 1:43pm
KMAJ (mail):
There seems to be a want or desire in opinions to shape the issue, some deliberately, some subconsciously to fit with personal perceptions and beliefs.

I see those putting forward 'potential' future abuses that the NSA surbeillance 'might' create. For those arguing that line of reasoning, I say you are walking down a very dangerous path, one that will require a litany of legislation and regulation to cover any laws that lend an appearance to being able to be abused. Once shackled in such a manner, any government will cease to be effective, as more time will be spent evaluating what they can and cannot do, instead of doing the people's business.

I still see the 'hated' talking point about a 'a pre-9/11 mindset in a post 9/11 world' ignored. No matter how hard one may try, to ignore the effect on the legal paradigm and construct is to engage in faulty analysis. A heavier weight will be given to post 9/11 cases. Sometimes we get so caught up in delving through legal minutiae or furthering partisan positions to paint with the pejorative brush of evil intent, we lose sight of the simple picture. The president honestly believes this program is necessary to protect the citizens of this country and believes it is fully constitutional.

To the layman, they are not concerned with the heretofore and whereas of legal doctrine, they apply a common sense standard, does it make sense ? All the great legal scholars can pontificate, parse, play with the semantics, emanations and penumbras to their hearts content, the man on the street is going to shrug his shoulders and say "Do I want you talking to Al Qaeda or Al Qaeda talking to you?" and "Should those doing so be subject to surveillance?". In the court of public opinion, those staking out a contrary opinion are going to lose the argument because you do not have common sense on your side.

There really are simple points of debate that play to the heart of this issue:

- In the Jackson tripartite categorization, does the AUMF make this a Category 1 designation putting the executive branch at the zenith of its authority ? Using Hamdi as a precursor, it seems to be leaning that way.

- Is intelligence gathering a fundamental incidence of war, and necessary to the effective prosecution of the war? I do not think one can dismiss or delegitimize the importance to prevent, protect and defend against future attacks. Invoking martial law (ex parte Milligan) is a straw man, nothing approaching martial law or Korematsu is involved here.

- What is the significance of FISA, has it been used outside of its original historical intent? FISA's original intent was to create a wall between intelligence gathering and criminal enforcement due to abuses in the LBJ and Nixon administrations that crossed that line in a fashion that is not even closely approached by the NSA surveillance, nor are the surrounding circumstances and justifications similar. If that purpose was re-enforced and heightened by the Gorelick Wall in the mid 90s, it would be natural to assume that the powers of FISA were at their Zenith, with the Patriot Act's destruction of that wall, FISA's powers would now be at low ebb, in fact, without that wall to provide the 'domestic protection' aspect, FISA has been effectively neutered and renedered borderline unconstitutional, especially in wartime, where it can be argued that its role now violates the separation of powers.

- Last, but not least, the common sense necessary, but too often not addressed, the overlap between intelligence and law enforcement created by terrorism as intrinsic parts of detection and prevention. Does it make sense to say it is ok to gather intelligence on terrorists and terrorist organizations, but not use it in criminal prosecution, when that criminal prosecution can be used as a tool to remove them from the theater of war ?

While everyone has a right to express concerns, and should do so with vigor as a vital watchdog to prevent abuses, we do this country a disservice if we take those concerns to an extreme and relegate common sense to some dark corner because it does not help one's ideological position.

In summation, there is no law breaking in the NSA program, just competing interpretations of constitutionality that breaks down along ideological lines. There is no evil intent or back room cabal to declare the US a monarchy and make George the King. There will be an election in 2008 and all this will simply be political falderal. This is a battle between two branches of the federal government, not unprecedented in nature or scope. Framed honestly, it can legitimately be described as the executive branch seeking to gain back 'some' of its authority that the legislative branch usurped when it enacted FISA. The keyword is 'some'. The executive branch is not seeking unfettered authority to wiretap 'anyone', but is narrowly tailored to the needs of his constitutional obligation and responsibility of protecting from, defending against and preventing enemy attacks.

I have not seen anyone look into the legal implications and vulnerability of the NY Times and their reporters for revealing classified information about communications intel. Some cite the Pentagon Papers case of NY Times v. United States, but that decision did not got to the criminality of of revealing an ongoing program, it only addressed that the Times could not be stopped from printing it, but that ruling did not absolve the media felonious criminal liability, in fact, it seems to have enforced the ability to charge the media with a crime and be held accountable for 'knowingly' printing illegally obtained classified documents or information that harms the country.
1.26.2006 2:13pm
Just an Observer:
KMAJ: - In the Jackson tripartite categorization, does the AUMF make this a Category 1 designation putting the executive branch at the zenith of its authority ? Using Hamdi as a precursor, it seems to be leaning that way.

It does not seem that way to me. If the court is "leaning" anywhere, it is against the President's claims.

Hamdi basically determined two questions: 1) Could a U.S. citizen be held by military authorities as an "enemy combatant" 2) Does the executive branch have exclusive domain over such a prisoner, eliminating judicial authority to protect his due process rights. This was treated most directly as a separation-of-powers issue.

The case was fractured. O'Connor's plurality opinion (joined by Rehnquist, Kennedy and Breyer) was at the center.

There were 5 votes — the plurality plus Thomas — holding that Hamdi could be held as an enemy combatant. O'Connor's opinion on this point was narrowly crafted to limit the precedent to detention of a combatant captured on a foreign battefield. The opinion left untouched the government's assertion that the President had inherent power for such detention, deciding more narrowly on the basis that the statutory authority of the AUMF was sufficient:

... 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 conventional wisdom has been that the Padilla case would determine whether this principle also extends to an "enemy combatant" captured in the United States. That might give some hint if the doctrine of a "fundamental incident of waging war" extends within our country. But the government has been scrambling to avoid a Supreme Court ruling in that case. Quite obviously, the DOJ lawyers are not confident of success there, despite a favorable lower-court ruling.)

Of course, Hamdi is distinguishable because it involved detention, not surveillance. Probably no one would dispute the collection of "signals intelligence" on a foreign battlefield, but it is quite a stretch to apply that label to electronic surveillance within the United States that already is governed by legislation and established judicial procedures.

On the separation-of-powers question in Hamdi, the government did assert exclusive executive authority as a constitutional matter. But that position got only one vote. Thomas supported that claim rather forthrightly. Citing the principle of the "unitary executive," he said the judiciary had no authority in the matter.

But the plurality opinion on the separation-of-powers issue, now becoming famous, was much more broadly worded when it rejected the government's claim:

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.

Interestingly, Scalia (joined by Stevens) staked out a dissent most extremely disfavorable to the government on both issues. Scalia argued that Hamdi should not even be held as an enemy combatant at all, but should be charged in civilian criminal courts.

Hamdi v. Rumsfeld, in fact, offers little comfort to Bush's legal case. It is one thing to spin its meaning here in the blogosphere, where you can say, "In the court of public opinion, those staking out a contrary opinion are going to lose the argument. ..." It would be quite another thing actually to try to make that case in the Supreme Court. Spin counts for nothing there.
1.26.2006 2:52pm
K Ashford (mail):
KMAJ writes:

All the great legal scholars can pontificate, parse, play with the semantics, emanations and penumbras to their hearts content, the man on the street is going to shrug his shoulders and say "Do I want you talking to Al Qaeda or Al Qaeda talking to you?" and "Should those doing so be subject to surveillance?". In the court of public opinion, those staking out a contrary opinion are going to lose the argument because you do not have common sense on your side.

My "side" -- to the extent that we are unitary in our thinking and I speak for them -- believes that al Qaeda SHOULD be surveilled, but doesn't believe that the Constitutional process needs to be circumvented in order to so. (This, of course, leads to the constitutional question, and hence, the legal mumbo-jumbo).

Some look at the NSA wiretapping scandal and see it as an issue about how to defend ourselves. Others (people on my "side") look at it as an issue about WHAT we are defending.

It makes no sense to us that we chip away at our freedoms in the name of defending them. Even the "man on the street" can relate to that reasoning.

Put another way: If there was such a thing as a "Fourth Amendment bomb", bin Laden would deploy it on us in a heartbeat. After all, he "hates our freedoms" -- I'm sure I've heard that said by someone.

You further write:

Framed honestly, it can legitimately be described as the executive branch seeking to gain back 'some' of its authority that the legislative branch usurped when it enacted FISA. The keyword is 'some'. The executive branch is not seeking unfettered authority to wiretap 'anyone', but is narrowly tailored to the needs of his constitutional obligation and responsibility of protecting from, defending against and preventing enemy attacks.

Framed honestly, this is a question of the co-extensive constitutional obligation of Congress as well as the President to defend against and prevent enemy attacks. Both branches take similar oaths, and while the Executive is the C-in-C, Congress is the one who -- constitutionally -- declares war and regulates the armed forces.

Furthermore, while the Administration is (arguably) "not seeking unfettered authority to wiretap 'anyone'", it certainly has laid down the legal justification for such abuse, should it (or any future administration) choose to do so. Clearly, the Framer's did not intend that the Executive to wield so much power, and that should be a concern to Americans of any political stripe.

History has shown us that the true threats to freedom don't come from radicals on the outside, no matter how lethal they might become. True threats to freedom only come from those holding power on the inside. Pick whatever historical time period and place you want -- Salem (Mass), 1930's Germany, Stalinist Russia, Iraq under Saddam -- and it's true. On its best day, al Qaeda simply does not have the power to curtail our freedoms; only expansive government power can. This isn't a lefty sentiment either -- talk to a Second Amendment scholar about the rationale behind the Second Amendment, and he'll tell you the same thing.
1.26.2006 4:54pm
Kovarsky (mail):
KMAJ

you know that when you say things along the lines of "this just breaks along partisan lines" you come across as saying "you hippie liberals are coming up with all your crazy conspiracy theories?" as if somehow the partisan nature of the response is self-evidently a liberal reactionary phenomenon, rather than an equally reflexive conservative one (or more likely, a little of both).

despite your plea to common-sense, whether or not the AUMF authorized the taps is framed as a legal or linguitic question really shouldn't matter. the judicial means of interpreting conflicting statutes is a methodology that borrows from common-sense about conflicting rules. the more specifically worded rule that is more likely to have contemplated the specifically contested subject matter is to be favored. "get out of the car when it's on fire" trumps "always wear your seat belt." so whether you want to call the methods for sorting out the "tension" between the AUMF and FISA "legalese" or whether you want to call it "common sense," the two inquiries are going to be the same. i can't name a single thinker outside of the administration (I'm sure there are 1 or 2, though) that would read the AUMF on FISA in a way that suggests the AUMF authorized the taps. FISA spoke specifically to the circumstances under which electronic surveillance of u.s. citizens may be undertaken and the procedures that should govern it. the AUMF is a general authorization for the president to use his power to fight terrorists.

instead, i'd say the greater fraction of lawyers that support the program are going to let their support ride on the proposition that Bush had the Article II power irrespective of whether congress gave it to him. it's not my intention to deliver a separation of powers lesson to someone that plainly isn't interested, but this at least allows the administration to try to justify the program under Article II power even if the AUMF didn't authorize it. The problem here is that the president's inherent authority doesn't extend to violation of other constitutional provisions, which is where you run into 4th amendment and separation of powers problems.

before i address your specific questions, let me start by saying that your plea to run a government not by reference to carefully parsed laws but to common sense is disconcerting. i think the rejoinder is, "whose common sense," otherwise known as "the issue to which jefferson et al felt the need to address with the institutional decision-sharing-and-value-conflict-reconciling document we sometimes call 'the constitution'" this is law, not baseball. you don't manage from your gut.

sadly, i find this appeal to "common-sense" to be a recurring theme in this discussion. it might be a more appealing argument if it were not inevitably coupled with an attempt to re-frame the debate as "should we be collecting intelligence or not," which is, for the love of frank zappa, not the question.

it's utterly bizarre to me how you would rail against legalese and then argue that the issue comes - in part - down to youngstown. but since you asked.

- In the Jackson tripartite categorization, does the AUMF make this a Category 1 designation putting the executive branch at the zenith of its authority ? Using Hamdi as a precursor, it seems to be leaning that way.

well, for the reasons i explained above, nobody seriously thinks that the AUMF represented conscious congressional authorization for the taps. now to hamdi. i'm glad you brought this up, because the selective editing of the oft-parroted quote the "white paper" uses is breathtaking. the white paper quotes Hamdi as follows:


The detention of combatants who fought against the United States as part of an organization "known to have supported" al Qaeda 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."


now, here's the passage without all the language lifted from it:


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.


In the un-Orwelled version, the supreme court quite expressly limits their "incident to war" rationale to detention of members of the taliban fighting the united states in afghanistan. I'm sure there's some way to pretzel read your way into the administration's interpretation, but at the very least it's their reading that's strained, not mine (not that anybody cares about my reading of it). So, no KMAJ, Hamdi does NOT read that way.

- Is intelligence gathering a fundamental incidence of war, and necessary to the effective prosecution of the war? I do not think one can dismiss or delegitimize the importance to prevent, protect and defend against future attacks. Invoking martial law (ex parte Milligan) is a straw man, nothing approaching martial law or Korematsu is involved here.

yes, intelligence gathering is a fundamental incidence of [sic] war, and it is necessary to the effective prosecution of war. i am assuming, though, that you-who-derides-legalese is again asking the legal question involving "fundamental incidents." It's never been implied that such incidents override the constitutional protections of U.S. citizens. War might trigger relaxed constitutional standards involving certain incidents, but that's a different beast. War, for example, might, under the 4th amendment, lessen the quantum of evidence necessary to get a warrant or might eliminate the warrant requirement entirely, but nobody would suggest that the 4th amendment did not apply.

- What is the significance of FISA, has it been used outside of its original historical intent? FISA's original intent was to create a wall between intelligence gathering and criminal enforcement due to abuses in the LBJ and Nixon administrations that crossed that line in a fashion that is not even closely approached by the NSA surveillance, nor are the surrounding circumstances and justifications similar. If that purpose was re-enforced and heightened by the Gorelick Wall in the mid 90s, it would be natural to assume that the powers of FISA were at their Zenith, with the Patriot Act's destruction of that wall, FISA's powers would now be at low ebb, in fact, without that wall to provide the 'domestic protection' aspect, FISA has been effectively neutered and renedered borderline unconstitutional, especially in wartime, where it can be argued that its role now violates the separation of powers.

Yes, FISA has been used outside of the context of Nixon administration abuses. Yes, that was a very sarcastic response. I have no idea where this talking point is coming from, but it would certainly be odd to say - as FISA does - that all surveillance not conducted under it or Title III (applicable to run-of-the mill warrant requirments) is illegal if the legislation were aimed at a historically discrete phenomenon. This "powers of FISA" / "ebb and flow" stuff is an analytic framework lifted from analysis of the president's undefined, fluid "inherent" article II power, and that cannot (for obvious reasons) be grafted onto congressional expression objectively codified in a statute.

- Last, but not least, the common sense necessary, but too often not addressed, the overlap between intelligence and law enforcement created by terrorism as intrinsic parts of detection and prevention. Does it make sense to say it is ok to gather intelligence on terrorists and terrorist organizations, but not use it in criminal prosecution, when that criminal prosecution can be used as a tool to remove them from the theater of war ?

unfortunately, i think you are misunderstanding this issue. whether or not this stuff can come into evidence is not even contested here. so while you might be making a "common sense" point, it is not even one espoused by any party in the current debate. the answer to the 4th amendment question drives your answer here. if the evidence was obtained in violation of the 4th amendment, it can't be introduced into a criminal prosecution (with some very very limited exceptions that dont apply here). The issue here is whether the surveillance is legal, irrespective of the ultimate prosecutorial purposes to which it is put.

Please stop accusing people of partisanship.
1.26.2006 5:18pm
Lawstsoul:
KMAJ said:
"Sometimes we get so caught up in delving through legal minutiae or furthering partisan positions to paint with the pejorative brush of evil intent, we lose sight of the simple picture. The president honestly believes this program is necessary to protect the citizens of this country and believes it is fully constitutional."

Your argument seems premised on your own partisan position including the assertion, as fact, that "The president honestly believes this program is necessary to protect the citizens of this country and believes it is fully constitutional." While I won't claim to know what is truly in someone else's mind, this president's words and actions have given me little reason to agree with your assessment. And my common sense says that he is neither competent or trustworthy.
1.26.2006 5:53pm
Medis:
To answer a question above:

If I recall correctly, President James Madison (aka Father of the Constitution) famously refused to declare martial law during the War of 1812.
1.26.2006 6:26pm
KMAJ (mail):
Kovarsky,

Thank you for your analysis and opinion. Let me address your final point on partisanship. First, I would not use the word partisan because it infers a political context, instead I would use the word bias in the context that everyone, including myself, has their opinions and beliefs shaped by their personal life experiences and cultural influences. As such, my opinions are just as biased as anyone elses, and I do not seek to deny anyones right to their opinion or their validity. I did not offer my opinion as some paragon of unbiased thought or empirical truth. I respect, appreciate and read in full responses such as yours, and the others who responded, with their critiques and counter argumentation.

Where I, with my admitted bias, find the debate uninforming, is when it devolves into charges of 'evil intent' or some backroom cabal. Certainly reasonable people can agree this issue is about that very delicate balance between freedoms/civil liberties and the ability to detect, prevent and protect this country. It is not unreasonable for people to lean in favor of one or the other, to think that the scale should tip slightly in one direction versus another.

It is reasonable to debate whether one branch of the government is encroaching on another. My opinion is admittedly shaped by Madison's concern about the legislative branch's tendency to absorb all power into it's vortex and that the judicial and executive branches are no match for the legislative branch. That does not mean there should be no concern of either the executive or judicial branches overreaching. The NSA case does not represent an expansion of executive power to rival FDR, Lincoln or Jackson, who directly refused to follow a Supreme Court ruling. I choose to take at his word that the NSA surveillance is as narrow in scope as they claim, I have seen no evidence to the contrary, and find hypotheticals, while adding perspective, should not overweigh the known specifics. Sways in branch authority is governed by the political climates of the times in which they occur, hence my point about the effects of 9/11 and terrorism on the legal paradigm and construct.
1.26.2006 7:01pm
Just an Observer:
KMAJ at 2:13 pm:

... Sometimes we get so caught up in delving through legal minutiae or furthering partisan positions to paint with the pejorative brush of evil intent, we lose sight of the simple picture. The president honestly believes this program is necessary to protect the citizens of this country and believes it is fully constitutional.

KMAJ at 7:10 pm:

... Let me address your final point on partisanship. First, I would not use the word partisan because it infers a political context, instead I would use the word bias in the context that everyone, including myself, has their opinions and beliefs shaped by their personal life experiences and cultural influences. ...


Once again, as he has done several times in other threads, KMAJ makes an ad hominem charge against others and then ducks.
1.26.2006 7:39pm
Kovarsky (mail):
you are correct in that there is no malign intent. anybody painting bush as venomously evil either doesn't get or can't quite articulate what's going on.

but it doesn't follow from the fact that bush is not evil that what his administration is doing is not profoundly troublesome. i'm not a relativist or anything like that, but i do acknowledge that many contemporary MORAL controversies are a product competing visions of "common sense."

the constitution, by and large, does not favor one type of "common sense" over another (notable exceptions include the bill of rights), but instead sets forth an institutionally varied system to resolve these conflicts competently.

that is what is so interesting about the NSA issue. everyone actually agrees on the "common sense." of course the NSA should have access to the taps (if the program is as cognizant of civil rights concerns as the president says it is). the objection people like me have is the way the administration short-circuited the well-tested, constitutionally required method of institutional consideration. although we all agree that we need this surveillance in one form or another, the precise contours of it require delicate trade-offs with civil liberties that our constitution deems legislature the most institutionally competent to balance.

that's why the fight isn't, for the most part, about surveillance per se. the fight is instead about what happens when there are conflicting visions of "common sense," and the when the administration hews to one contested such vision. and here's the rub: it's not that bush intends ill, but it's rather that once he identifies HIS common sense then he doesn't see the constitution as a delicate balance of institutional specialties designed to test his hypothesis, but as red-tape.

this problem is so pronounced with the bush administration not only because it probably engages in this particular exercise more than have most administrations, but also because it is decidedly unapologetic about it.

that is, after all, what is so ironic about the alito hearings going on at the same time as the NSA story builds. the administration champions "strict constructionists," whose core beliefs generally involve a strict adherence to the the separation of powers - in other words, a diminished role of the countermajoritarian judiciary in our system of checks and balances.
1.26.2006 7:47pm
KMAJ (mail):
Thank you, Kovarsky. I am not sure it is accurate to say Bush sees the Constitution as red tape. He obviously has legal advisors, whom I would assume have some modicum of expertise in constitutional law, who shape his view. He is certainly a person of strong convictions and not easily swayed when he believes he is right. I think it is those strongly held convictions that create much of the animus and the perception of inflexibility. I think some of it results from a distrust of the opposition party, I think he was willing to try to reach out when he first got elected in 2001, but he got his hand bitten. Also, the polarization that exists does not help create an atmosphere conducive to cooperation, where anything that can be painted as a weakness or mistake is used as a political club to attack the person with.

I think he honestly believes the NSA program is important for him to be able to protect the country. Without any of us knowing the actual details, we are left playing a guessing game that breaks down to a trust issue. Were presidents before FISA more trustworthy than those since ? One obvious answer is that LBJ and Nixon weren't, thus the creation of the political climate in the country that led to the formation of FISA. Certainly FDR and Manzanar was as bad as the abuses of Nixon and LBJ, but the climate created by WWII did not support a creation at that time. I believe we are in a climate that falls between those two extremes, os it would be incumbent to look upon this situation through that looking glass, i.e. a different paradigm and construct.

My opinion is that, if this makes it to the Supreme Court, it will be a narrow ruling that restricts itself to the narrow parameters of the NSA surveillance, rather than a sweeping separation of powers ruling, unless both sides seek to make that case. It will thus hinge on their view of the AUMF creating a category 1, 2 or 3 situation for the executive branch, per Jackson, and to what degree the NSA surveillance program is a fundamental incidence of the use of force authorized. Whether it is a criminal enforcement tool or primarily intelligence gathering to protect and prevent, as Gen. Hayden alleges. The other issue to be decided is the one end of the conversation being surveilled being overseas and one in the US, does that fall under domestic coverage ? 9/11 and terrorism will play a role in whatever decision they arrive at.
1.27.2006 12:54am
KMAJ (mail):
JaO,

It appears you seek to create conflict and use two unrelated statements of position.

First, you cite:

KMAJ at 2:13 pm:


... Sometimes we get so caught up in delving through legal minutiae or furthering partisan positions to paint with the pejorative brush of evil intent, we lose sight of the simple picture. The president honestly believes this program is necessary to protect the citizens of this country and believes it is fully constitutional.


It was a specific representation to those who put forth pejorative arguments. Do you deny that putting forth arguments of evil intent are partisan positions ?


KMAJ at 7:10 pm:


... Let me address your final point on partisanship. First, I would not use the word partisan because it infers a political context, instead I would use the word bias in the context that everyone, including myself, has their opinions and beliefs shaped by their personal life experiences and cultural influences. ...


Here I used bias in a broadbrush, putting forth the position that EVERYONE is biased, including myself, there are just varying shades of grey. If you want to pick a fight or attack, please be accurate in your representation before your own ad hominem. If you were unlcear as to my point, I would have been happy to clarify it for you.
1.27.2006 1:45am
farmer56 (mail):
NSA Why does it exist? Why not just eliminate NSA? Congress can do that. Only Congress can eliminate the NSA! Hum? Ok, I give in, NSA is a spook house. They 'spy' for a living. Mister Senator, if you dont like spying shut up or offer a bill to defund NSA. Simple huh?

As an aside. why do the courts have more power in this spitting match than the President?
1.27.2006 9:21am
Just an Observer:
KMAJ,

My point was simply that you used the word "partisan," and then, when challenged, acted is if you hadn't used the word at all!

I do think the context of your use of the word "partisan" applied to many who challenge the President on this matter. Your generalization then was spun into an ad hominem argument. When you said "we" -- a somewhat condescending use of that pronoun -- are "furthering partisan positions to paint with the pejorative brush of evil intent," I am sure you did not actually mean "we" to include yourself. You have not uttered a peep of criticism of the President here.

Then, when Kovarsky implored you, "Please stop accusing people of partisanship," you ducked. You said, "I would not use the word partisan ..."

(BTW, I am still waiting for you to retract your contemptible suggestion that the non-partisan CRS professionals who wrote the report challenging Bush's legal case were actually being partisan, and your equally contemptible suggestion, based on no evidence except your own belief that it was "plausible," that Judge Roberston had leaked information from the FISC court. It is because of the pattern of such attacks in your other postings -- slinging mud and then ducking -- that I am sensitive to your ad hominem arguments in this thread.)

I am not aware of anyone on this blog who has accused Bush of "evil intent." There may be some odd trolls from all sides who say outrageous things here ocassionally, and there are other blogs that are quite partisan. But your description simply does not apply to the mostly serious discourse here.

Many doubt the good faith of Bush's behavior toward Congress, the courts and the public, and some believe he is seeking to aggrandize executive power illegitimately, but that is not the same thing as "evil intent."

And it most assuredly is not true that all such critics are partisan. I am no Democrat and no liberal, and I doubt Bush's good faith in the way he has handled this matter.
1.27.2006 9:57am
cathyf:
Something no one has addressed here is that the Administration talking points often use the phrase "hot pursuit."
Gonzalez: This is not about intercepting communications between people in America, it's about the "hot pursuit" of international communications involving someone we reasonably believe is associated with al Qaeda, where one of the parties to the communication is already in the United States.

Hayden: This is targeted and focused. This is not about intercepting conversations between people in the United States. This is hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda.
I'm not a lawyer, and so I'm struggling to understand the technical issues here... Isn't it true that the 4th Amendment has been interpreted to set up two different search regimes? There is the "hot pursuit --> warrantless --> not unreasonable" regime, and there is the "deliberative --> get a warrant --> probable cause" regime. That the courts have ruled that in situations where careful deliberation and in-depth investigation is impractical, the authorities can pursue suspects where the suspicion might or might not pass a probable cause test with more investigation.

If the Administration is really hanging this on a "hot pursuit" rationale, then it is certainly true that any domestic/foreign distinction is purely arbitrary -- the 4th amendment doesn't give anybody a right to be secure against any search without probable cause and never has.

cathy :-)
1.27.2006 10:20am
Just an Observer:
cathy,

The novel use of the "hot pursuit" in this week's PR talking points from the administration was discussed in this thread here the other day.

At this point I would not read too much into that. The phrase "hot pursuit" was not mentioned at all as a legal rationale in the DOJ "white paper" released last week.

Of course, on another level, the white paper itself is just talking points. Although it has 42 pages, footnotes and the veneer of legal argument, in some ways like a legal brief, it has not been filed with any court. The white paper is a political document intended for public consumption, and has not much more legal authority than the tooth fairy.
1.27.2006 11:08am
Just Wondering:
KMAJ wrote:

I think [Bush] honestly believes the NSA program is important for him to be able to protect the country. ... Were presidents before FISA more trustworthy than those since ? One obvious answer is that LBJ and Nixon weren't, thus the creation of the political climate in the country that led to the formation of FISA. ... I believe we are in a climate that falls between those two extremes, os it would be incumbent to look upon this situation through that looking glass, i.e. a different paradigm and construct.

I thought the whole idea was to create a system of procedures to be followed no matter who's in charge. I don't think courts operate in a different paradigm depending on the trustworthiness of the Executive. Congress shouldn't have to do that, either, ideally. A big reason for having rules is so that we don't have to rely on trust.

Cathyf,

The legal doctrine of hot pursuit is (according to nolo.com)

An exception to the general rule that a police officer needs an arrest warrant before he can enter a home to make an arrest. If a felony has just occurred and an officer has chased a suspect to a private house, the officer can forcefully enter the house in order to prevent the suspect from escaping or hiding or destroying evidence.

Or, (definition from law.com)

n. when a law enforcement officer is so close behind the alleged criminal that he/she may continue the chase into another jurisdiction without stopping or seeking a warrant for an arrest in the other county or state. It is equivalent to fresh pursuit.

This second definition has its international analog in the context of the Law of the Sea. Basically, the Coast Guard can continue chasing a suspected drug runner (or any boat that is suspected of involvement in criminal activity within the U.S. territorial sea) into international waters and board it there, even if it wouldn't have jurisdiction over the criminal activity if it occurred on the high seas.

What "hot pursuit of international communications" might mean in the context of an ""early warning system" or intelligence in general, well, I'm baffled. I've always thought it has to do with stopping fleeing criminals rather than conducting searches and that it would require a rather high standard of probable cause. But maybe somebody else has a better guess.
1.27.2006 11:44am
Kovarsky (mail):
The administration's "hot pursuit" language is probably setting up a potential defense that they haven't elected to trigger yet. Basically, the 4th amendment generally requires that you need a warrant to conduct a search or make unauthorized entry onto premises. There are certain exceptions to this rule. One such exception is "hot pursuit," whereby police may enter a building in "hot pursuit" of a suspect. They can also seize evidence while in "hot pursuit." Whether the "hot pursuit" defense can translate from real-space to cyber-pursuit is a problem i'm guessing courts have not considered. But, given the justifications for hot pursuit - you can't expect police to stop at a doorway and go back to the courthouse to get a warrant to enter the building the suspect entered 2 hours earlier - i doubt courts would buy it. It's not that the translation of the hot pursuit defense is inconcievable, though. If there is some evidence that Al Qaeda can cahnge phone numbers every couple of seconds or so, that may lend more credence to the position.
1.27.2006 12:35pm
Just Wondering:
Kovarsky wrote:
It's not that the translation of the hot pursuit defense is inconcievable, though. If there is some evidence that Al Qaeda can cahnge phone numbers every couple of seconds or so, that may lend more credence to the position.
1.27.2006 12:45pm
Just Wondering:
Oops, wrong button!
Kovarsky wrote:

It's not that the translation of the hot pursuit defense is inconcievable, though. If there is some evidence that Al Qaeda can cahnge phone numbers every couple of seconds or so, that may lend more credence to the position.

But a crime has to have occurred before a hot pursuit can proceed. Racketeers can change phone numbers frequently, too, but that doesn't make surveillance of their phone conversations "hot pursuit."
1.27.2006 12:47pm
Kovarsky (mail):
Agreed. I was trying to distance the "hot pursuit" discussion from the specifics here. Obviously it's inapplicable. My point was if you had an operative in the United States that had committed a crime and was switching phone numbers every 3 minutes, then maybe you could make the case. Not when the operative is overseas, and not even domestically if that operative is not a "suspect."
1.27.2006 1:46pm
KMAJ (mail):
JaO,

You simply prove my point, you were looking for conflict. You make assumptions you cannot support with your 'we' claim of my intent. I would not have used we if I did not intend to include myself and the word 'or' makes a clear delineation between two categories, engage in legal minutiae and partisan users of pejorative charges. You are free to disagree with the assessment and engage in distortions in your ad hominem, after all, it is a free country. Why would I criticize Bush on the NSA surveillance if I think it is legal and the legal case has been made, in my opinion, to support it ? You want me to criticize Bush, there are certainly many areas to criticize him on, handling of the War in Iraq after Saddam fell, the budget and spending, the prescription drug bill, the nomination of Miers and its appearance of cronyism, to name just a few. Your argument falls flat when you make such conjecture based on one issue.

Attribution or casting of aspersions 'evil intent' or deliberate unconstitutional motivations is not based on any legal analysis, but personal 'partisan' opinion. Partisan has to do with politics, not necessarily party, as such, your self-assignation of your leanings in ideology do not remove partisan effects. It is fine to analyze counter legal opinion to the advice one would hope the president gets from his legal advisors, which does entail interpreting legal minutiae differently than you do, but to claim some negative motivation is partisanship. You are free to engage in such rhetorical flourishes when espousing your opinion, but do not try to paint yourself in a veil of non-partisanship when you step outside the boundaries of legal analysis into the realm of divining personal motivation negatively. To whit, I was disgusted by republican attacks on Clinton and the 'wag the dog' accusations. I certainluy disagreed with Clinton on policy matters more than I do with Bush, Clinton's policies were much more socialistic, I am an averred capitalist, but I did not ascribe negative intent because his beliefs are different than mine.

I am freely willing to admit to my own biases and partisanship, I make no claim of perfection in abstaining from partisanship or it slipping into my opinions. Nor do I make any claim of being superior to anyone else, though I also reject anyone else claiming superiority, though willing to give deference to the disposition of wise expertise, even if I disagree. I bow to no man/woman and expect no man/woman to bow to me. We are all flawed human beings, it is interesting the hubris that can be brought to bear when those flaws are discussed, especially if it contradicts a self-image.

This issue still comes down to two conflicting interpretations of unsettled law, we would not be engaging in this discussion if it was settled. My contention is that the law does not operate in a vacuum, that it is subject to outside influences, such as 9/11 and the War on Terrorism. As such, the paradigm and constructs are not rigid, but fluid to enable it to effectively deal with new situations. It is human nature to fight that fluidity when it necessitates change. It is such a fight that is now being encountered and bolstered by hypotheticals as opposed to reality. We hear about 'loss of civil liberties', yet no one can sight any specific example of civil liberties being unjustly and adversely affected, except those of terrorists.
1.27.2006 2:03pm
Kovarsky (mail):
this exchange brought to you by the ministry of spartan debate.
1.27.2006 3:47pm
Mylar Thomson (mail):

If I recall correctly, President James Madison (aka Father of the Constitution) famously refused to declare martial law during the War of 1812.


That is because he knew Congress would authorize it in AUMF.
1.27.2006 8:08pm
John Lederer (mail):
"If I recall correctly, President James Madison (aka Father of the Constitution) famously refused to declare martial law during the War of "

I seem to recall a little vignette of history in which Pres. Madison in his carriage was about to mistakenly cross a bridge onto the other side held by the British. There was some doubt as to whether the American soldiers would choose to stop their Commander in Chief from making the error...
1.27.2006 11:41pm
Medis:
Incidentally, I think the President's news conference last week contained a lot of very useful information on his thinking--perhaps nothing that the white paper did not already suggest, but useful nonetheless if for no other reason than that the President himself was stating his views on these issues.

In particular, I would highlight this exchange, which was about the President's McCain Amendment signing statement, not FISA, but which I think also underscores his general views:

"Q Could you call on your Texas straight talk and make a clear and unambiguous statement today that no American will be allowed to torture another human being anywhere in the world at any time --

THE PRESIDENT: Yes. No American will be allowed to torture another human being anywhere in the world. And I signed the appropriations bill with the McCain amendment attached on because that's the way it is. I know some have said, well, why did he put a qualifier in there? And one reason why presidents put qualifiers in is to protect the prerogative of the executive branch. You see, what we're always doing is making sure that we make it clear that the executive branch has got certain responsibilities. Conducting war is a responsibility in the executive branch, not the legislative branch."

As I have suggested many times, I think this view (that Congress has no authority to regulate the conduct of war) is directly contradicted by the text and structure of the Constitution, particularly as augmented by contemporaneous events and sources. But again, the President's comments are useful precisely because they should make it very clear to Congress what is at stake.
1.28.2006 12:44pm
Just an Observer:
KMAJ,

So, by your definition, you do consider your own resolute defense of the President and his surveillance program to be partisan?
1.28.2006 6:32pm
KMAJ (mail):
JaO,

I consider it to be biased, there is no pejorative nor political personal opinion involved. Under these same circumstances, if the president were a democrat, I would still support it.
1.29.2006 3:32am
Just an Observer:
KMAJ,

Your definition of bias seems to mean that anyone who forms an opinion is biased. And if "political personal opinion" is involved, the person holding that opinion is partisan.

So I assume you would agree that the opinions of the President and his chief advocate, the attorney general, are both biased and partisan.
1.29.2006 10:08am
Medis:
KMAJ,

As an aside, in the interest of full disclosure, I'm happy to admit a "bias" in favor of the rule of law and constitutional checks and balances, if by that you simply mean I generally favor those principles. However, I'd personally say that is less a "bias" and more a series of combinations of philosophical conclusions and heuristics based on history and experience. In other words, not all general conclusions are the result of "bias" in the sense that one is pre-judging the relevant issues.

Anyway, you twice conflate two different things. First, you say:

"Attribution or casting of aspersions 'evil intent' or deliberate unconstitutional motivations is not based on any legal analysis, but personal 'partisan' opinion."

But of course "unconstitutional" intent is not the same thing as "evil" intent. Moreover, the analysis of whether an act is unconstitutional is necessarily a LEGAL analysis. So, your attempt to conflate the moral question of whether a person's acts are evil with the legal question of whether their acts are constitutional simply confuses the issue.

Second, you say:

"Partisan has to do with politics, not necessarily party, as such, your self-assignation of your leanings in ideology do not remove partisan effects."

Of course, "party" is the root of "partisan," and not all convictions that involve politics imply partisanship. Indeed, the very idea of accusing someone of being "partisan" is that they are putting their loyalty to something like their political party ahead of something like a consistent political ideology. So, a critique based on a consistent political ideology is not a "partisan" critique even though it involves politics.

In short, it is not "partisan" to suggest that someone is doing something unconstitutional, provided that such a conclusion is based on legal analysis and not loyalty to a particular party. Similarly, it is not "partisan" to suggest that someone is doing something that is unwise, impractical, or otherwise wrong as a matter of political ideology, again provided that such a conclusion is not based simply on loyalty to a particular party. Finally, to suggest that someone is doing something unconstitutional and unwise for these reasons is not the same thing as suggesting this person has an "evil intent".

And when you conflate all these things, you actually make it harder, not easier, to have a rational discussion about these issues.
1.29.2006 10:17am