pageok
pageok
pageok
Response to DOJ Brief:
I've been planning to take a close look at select parts of DOJ's 42-page brief in defense of the NSA surveillance program, but the posts turn out to be very time-consuming to write and get pushed to the backburner pretty easily. In the meantime, Marty Lederman has orchestrated a response that I think makes a number of persuasive points. I don't agree with all of it, but it's a notable response to the DOJ memo that deserves serious attention.
Nobody Special:
I like how this letter to the senators actually makes points and arguments, and then isn't followed by the clenched-fist-in-the-air and 850,000,000 signatures of clinical professors. It's a nice change from, say, letters regarding the various nominations put forward by the President.

Then I notice that Erwin Chemerinsky, the architect of such things, isn't listed.
2.7.2006 12:48pm
Jim T:
"...we concluded that the [AUMF] against al Quida could not reasonably be understood to unlimited warrantless electronic surveilance of persons within the United States..."

Isn't this a strawman argument? Who in the Administration has argued that they have "unlimited" ability to conduct warrantless surveilance inside the US?

Also, let's not forget that a number of the people who signed that letter, which purports to find no "plausible legal justification" for the NSA activities were responsible for Clinton era memos which go farther in defense of Presidential power in this area than any current Bush argument.
2.7.2006 1:29pm
Jim T:
Sorry, that should be "further", not "farther".
2.7.2006 1:30pm
Andrew Hyman (mail) (www):
The linked letter argues (e.g. at footnote 3) that collecting signals intelligence is not a fundamental incident of waging war, even if the signals are sent directly from an enemy headquarters overseas to a person located inside U.S. borders. This argument may prevail, but I doubt it. Signals intelligence may not be fundamental if one intends to lose a war, but not if one intends to win it.

The linked letter also says, "There is no evidence that Congress considered tactics violative of express statutory limitations 'appropriate force'" within the meaning of the AUMF. But the AUMF itself provides such evidence. The last sentence of the AUMF says that nothing in the AUMF supersedes the War Powers Resolution, and that last sentence of the AUMF would be surplusage if Congress believed "appropriate force" couldn't violate express statutory limitations. Doesn't Congress consider the War Powers Resolution to be an express statutory limitation?

I hope that we can get past allegations of criminality, and proceed with updating FISA to address current technologies and scenarios. The President is on reasonable legal ground, if he can prove that the NSA program was a fundamental incident of war, and that it was essential in order to use all necessary and appropriate force against Al Qaeda.
2.7.2006 1:41pm
Medis:
Andrew,

It should be clear by now that no one in the government is buying your "surplusage" argument--as far as I can tell, it appears nowhere in any of their legal rationales.

And with all due respect, besides the fact that I think you are simply misapplying the surplusage doctrine, I also think that the reason why no one is willing to make that argument is obvious. Since that argument is entirely nonspecific to FISA, or to any other statute for that matter, it would apply equally well to all statutes. And no one is going to believe that Congress intended that statement about the requirements of the War Powers Act to suggest that all other statutes were now advisory. To paraphrase Justice Kennedy, that would truly be hiding an elephant in a mouse hole.

Of course, we have discussed all this before, but I do have one new point to add. Since our last discussion, I reread Clinton v. City of New York. I think that case is relevant because the Court reasons that even Congress cannot delegate the authority to amend or repeal statutes which have been signed into law to the President. Rather, statutes can only be amended or repealed through the Article I legislative process.

So, I'd be interested in your thoughts on whether the 2001 AUMF, as you interpret it, would be constitutional under Clinton. In other words, if I recall correctly, you want to say that under the 2001 AUMF, whether FISA is still the "exclusive means" for conducting electronic surveillance depends on a presidential determination about whether bypassing FISA iss necessary and appropriate. To me, that sounds like a congressional delegation of authority to the President to repeal or amend the "exclusive means" language in 18 USC 2511(2)(f). So, doesn't that make the 2001 AUMF, on your reading, unconstitutional under Clinton?
2.7.2006 2:00pm
gbrown:
Note 5 of the DOJ brief states: "To avoid revealing details about the operation of the program, it is assumed for purposes of this paper that the activities described by the President constitute “electronic surveillance,” as defined by FISA, 50 U.S.C. § 1801(f)."

Electronic surveillance is defined in § 1801(f)as:
(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, United States Code;
(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.

Spokesmen for the administration have talked about intercepting communications from known terrorists abroad to persons in the U.S., actions that many persons consider to be prudent. Indeed, such activity is not likely ever to constitute a fourth amendment violation and would be covered by 50 U.S.C. § 1801(f) in few circumstances. Does DOJ's brief now make it clear that NSA, and perhaps others, are doing much more than what the administration has said it was doing?
2.7.2006 2:09pm
steveh2:
I'm curious -- is anyone here aware of a source addressing the argument that wiretapping is not "force," so that the AUMF did not authorize wiretapping when it authorized the President to use all "necessary and appropriate force" against those who committed the 9-11 attacks?

Also, has anyone seen anything addressing the argument that even if the AUMF was authorization as mentioned by FISA, wiretapping would only be allowed against those persons who "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons"?
2.7.2006 2:15pm
George (mail):
I second the sentiments expressed by the first commentator. Law professors writing a legal letter containing actual legal analysis... That's not something I had expected to see.
2.7.2006 2:18pm
Ditty:
Glad to see everyone is still snowed on this one (OK, that was a bit sarcastic).

There are ways to sidestep FISA. As far as I know, it is not illegal for a foreign nation on foreign soil to monitor the communications from or to the United States. UKUSA, anyone?
2.7.2006 2:26pm
M. Lederman (mail):
Thanks, Orin. For what it's worth, the letter is very much a joint endeavor among the signatories, and David Cole had at least as much of a role as I in "orchestrating" it.

Andrew: We do not argue "that collecting signals intelligence is not a fundamental incident of waging war, even if the signals are sent directly from an enemy headquarters overseas to a person located inside U.S. borders." What we *suggest* is that it's not very helpful to designate "signals intelligence of the enemy" writ large as a "fundamental incident" of war, thereby obscuring all the different techniques that might be used to gather such information, and eliding the question of whether it is a "fundamental incident" of war to (i) *target U.S. persons* to get such information, particularly when (ii) for 26 years (i.e., almost all of the years since anyone thought there were constitutional interests in the privacy of phone calls) there has been an elaborate statutory scheme in place -- one crafted with, and approved by, the Executive -- that has regulated the precise manner in which such surveillance may take place.

Which raises this point, more directly related to your post: If my understanding is correct, in a case where "the signals are sent directly from an enemy headquarters overseas to a person located inside U.S. borders," *it is not covered by FISA* unless the interception occurs in the U.S. -- and even then, a court order allowing it would be fairly routine if the signal is intercepted at the "switch."

That's almost certainly *not* what this NSA program -- *any* of their NSA programs -- is about. What appears to be going on here is the tapping of phones here in the U.S., without a showing of probable cause that the targeted U.S. person is an agent of a foreign power. Is *that* a "fundamental incident" of war? I'm not saying it's not -- I'm merely suggesting that, 28 years into FISA, the "fundamental incidents" question is not terribly illuminating when asked at that level of detail.

I should emphasize: Our letter *assumes* (without deciding) that the President *could* authorize this program in the absence of FISA, if (and it's a big "if") the program comports with Fourth Amendment standards. It doesn't follow that the President can ignore FISA.
2.7.2006 2:35pm
Andrew Hyman (mail) (www):
Medis,

The doctrine of implied repeal was only addressed in a footnote of the 42-page DOJ brief. If it turns out that DOJ has to rely more on the doctrine of implied repeal, then they may want to bring in the surplusage argument to buttress the case for implied repeal. Note that the doctrine of implied repeal is nonspecific to FISA, but that hasn't stopped DOJ from mentioning it.

Incidentally, I don't find the elephant and mousehole analogy particularly apt. A declaration of war (or its equivalent) is hardly a mousehole.

Medis, you wrote, "if I recall correctly, you want to say that under the 2001 AUMF, whether FISA is still the 'exclusive means' for conducting electronic surveillance depends on a presidential determination about whether bypassing FISA is necessary and appropriate." Actually, I don't think I've ever said such a thing (although DOJ has said it). In my opinion, the interpretation of the words "necessary and appropriate" in the AUMF is ultimately up to the judiciary (although the judiciary would probably defer as much as possible to the president).

Regarding Clinton v. New York (http://laws.findlaw.com/us/000/97-1374.html), that case involved the line item veto. No one is suggesting that the AUMF allows the president to willy-nilly draw a line through whatever statutes he dislikes. For example, FISA provisions governing surveillance of completely domestic communication would not implicate a fundamental incident of war, and it would therefore not be "necessary and appropriate" for the president to avoid those provisions.
2.7.2006 2:42pm
David Matthews (mail):
I'm not sure the relevance of "28 years into FISA" or "for 26 years...." when for none of the first 25 were we at war (never during this time was an "AUMF" issued.) That is, the number of years for which the statute is in place bears no relevance if, at no time during those years, did a comparable situation arise, in which case the inclusion of the "number of years" in the argument is purely rhetorical flourish.
2.7.2006 2:44pm
Steve:
Well, this brings us back to an issue from yesterday's hearings. Are you really contending that if two al-Qaeda members inside the US are communicating, the President does not have the inherent power to eavesdrop on them without a warrant? How is that any less, or more, akin to "signals intelligence" than communications where one party is outside the US?
2.7.2006 2:47pm
Aaron:
Steve:
If one of the Al-Qaeda members is a "United States Person" then yes, POTUS needs a warrant. After the fact. Within 72 hours. Why is this such a hardship?
2.7.2006 2:51pm
Andrew Hyman (mail) (www):
Thanks for the reply, Marty. In a case where signals are sent directly from an enemy headquarters overseas to a person located inside U.S. borders, and the interception occurs in the U.S., a court order allowing surveillance might be fairly routine. However, it would not be instant, nor would it be free of a significant bureaucratic burden, and it would also not be free of the "probable cause" requirement that the Fourth Amendment imposes for warrants ("reasonable cause" can often be shown even though "probable cause" cannot).
2.7.2006 2:54pm
Michael B (mail):
gbrown's point is certainly pivotal and seemingly convincing.
2.7.2006 2:54pm
Jack John (mail):

It should be clear by now that no one in the government is buying your "surplusage" argument--as far as I can tell, it appears nowhere in any of their legal rationales.



I remember Gonzalez explicitly slipping in the surplusage argument during the hearing.
2.7.2006 2:59pm
Jack John (mail):
Let me propose that we have a different balance in two situations:
1. a separation of powers argument by the Government versus an individual rights argument made by a person
2. a separation of powers argument by one branch of Government versus a separation of powers argument by another branch of Government

I don't think comments made or legal principles enshrined in context 1 travel well to context 2. And that is what results in much of the nonsense said in these posts. Libertarians tend to always want to make argument 1, because they care about people. But here we are talking about institutions, unless... is anyone aware of anyone who has standing to sue the Executive on these precise matters?
2.7.2006 2:59pm
Steve:
If one of the Al-Qaeda members is a "United States Person" then yes, POTUS needs a warrant. After the fact. Within 72 hours. Why is this such a hardship?

You're not following the argument. My question was why a communication between two al-Qaeda members inside the U.S. is constitutionally different from a communication between an al-Qaeda member abroad and someone in the U.S. It is apparently Mr. Hyman's contention that the latter is a fundamental incident of war but the former is not.
2.7.2006 3:00pm
JohnGalt47 (mail):
I am not a lawyer nor do I play one on TV, but I note the phrase "lacks any plausible legal justification." Is this standard Legal Brief hyperbole or do they truly believe that the DOJ brief was put together using evolving standards from around the world?
2.7.2006 3:05pm
Medis:
Andrew,

To be more clear, I would say the mousehole in this case is, as you like to put it, the last five words of the 2001 AUMF. As I have always maintained, if you could get your reading out of the actual authorization clauses, that would be more compelling.

Anyway, I don't think you addressed the argument I based on Clinton.

First, as an aside, the "line item veto" in Clinton (arguably a misnomer, since it occurred after the bill was signed into law) applied only to certain budgetary provisions. So, even if you could limit the scope of the mechanism you are imagining to some limited field of statutory provisions (eg, provisions impacting a "fundamental incident of war"), that would not address the constitutional problem identified in Clinton. Similarly, it doesn't matter if only parts of FISA, or even just the "exclusive means" language, were being affected, because that was true in Clinton as well (only parts of provisions within an Act were affected).

Second, I don't think you have grappled with the basic problem. To review the basic reasoning in Clinton:

(1) The Presidential actions at stake, which prevented a statutory provision signed into law within a larger Act from "from having legal force or effect", were legally and practically equivalent to an amendment of the Act because he effectively repealed those provisions.

(2) Such amendments and repeals have to go through the Article I process, and Congress cannot delegate that power to the President.

I'd also note that Justice Kennedy, who joined the Court's opinion, also wrote a concurrence with respect to the broader separation of powers issues (in response to a dissent by Breyer). He wrote in part:

"Separation of powers was designed to implement a fundamental insight: concentration of power in the hands of a single branch is a threat to liberty. The Federalist states the axiom in these explicit terms: 'The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.' The Federalist No. 47, p. 301 (C. Rossiter ed., 1961).
. . .
It is no answer, of course, to say that Congress surrendered its authority by its own hand; nor does it suffice to point out that a new statute, signed by the President or enacted over his veto, could restore to Congress the power it now seeks to relinquish. That a congressional cession of power is voluntary does not make it innocuous. The Constitution is a compact enduring for more than our time, and one Congress cannot yield up its own powers, much less those of other Congresses to follow. See Freytag v. Commissioner, 501 U.S. 868, 880 (1991); cf. Chadha, supra, at 942, n. 13. Abdication of responsibility is not part of the constitutional design.

Separation of powers helps to ensure the ability of each branch to be vigorous in asserting its proper authority. . . . By increasing the power of the President beyond what the Framers envisioned, the statute compromises the political liberty of our citizens, liberty which the separation of powers seeks to secure."

Personally, I think the potential application of these principles to your proposed reading of the 2001 AUMF is obvious. But to make the point more concretely, let me ask you this question:

When exactly, on your view, did the "exclusive means" language cease to have legal effect?

As I see it, there are two notable options. The first is that it ceased to have legal effect when the 2001 AUMF was signed into law. The problem with that view, as we have frequently discussed, is that such an implied repealed by an Act of Congress requires clear evidence of congressional intent. That evidence seems to be lacking--and indeed, even some Republican Senators are disclaiming that intention.

Alternatively, the "exclusive means" language could have ceased to have legal effect when the President determined that conducting electronic surveillance by some other means was necessary and appropriate. Indeed, I thought this was your view. But it seems to me that counts as the sort of amendment or repeal that would violate the rule in Clinton.

In short, it seems to me that on your reading, Congress has tried to delegate its power to amend statutes--perhaps just within a limited range--to the President. But I think this delegation would violate the constitutional separation of powers, at least according to the analysis in Clinton.
2.7.2006 3:15pm
Jack John (mail):

To me, that sounds like a congressional delegation of authority to the President to repeal or amend the "exclusive means" language in 18 USC 2511(2)(f). So, doesn't that make the 2001 AUMF, on your reading, unconstitutional under Clinton?



If such a broad reading is appropriate for Clinton, then an equally broad reading should be appropriate for Klein. In that case, any Executive power functionally equivalent to the pardon power as posited in Klein should likewise be free from Congressional dilution.
2.7.2006 3:17pm
tas:
If it is true that all presidents have gathered intelligence durings times of declared conflict, and I believe this to be the case - did they rely on the "inherent power" of the president during times of war?

If they did, can Congress pass laws that limit those "inherent powers"?
2.7.2006 3:17pm
Jack John (mail):
In other words, Medis, FISA still has legal effect, as Gonzalez has stated. It simply doesn't apply to situations ("the program I am here today to talk about") that fall directly within exclusively Executive powers, because they is beyond the reach of Congress (see, e.g., Klein).
2.7.2006 3:19pm
Jack John (mail):
they are, rather

editing error
2.7.2006 3:20pm
Kovarsky (mail):
Andrew,

I believe Medis's "elephant in a mousehole" remark refers to the granularity of the respective texts, not the importance of their subject matter.
2.7.2006 3:22pm
Steve:
In short, it seems to me that on your reading, Congress has tried to delegate its power to amend statutes--perhaps just within a limited range--to the President. But I think this delegation would violate the constitutional separation of powers, at least according to the analysis in Clinton.

I think the line-item veto analysis is extremely apt. The point is, at the time the AUMF was passed, we were dealing with an unknown enemy who would require unknown countermeasures. Assuming for the sake of argument that some statutes on the books in 2001 are incompatible with the President's authority to act under the AUMF, the list of such statutes was completely unknowable at the time the AUMF was passed, and thus Congress cannot have had the intend to "amend" such statutes.

Instead, the argument goes, Congress said to the President, "Do what you have to do, and if any of our pre-existing statutes are incompatible with whatever you have to do, then just consider them amended." That is, indeed, granting the President the power to amend statutes based upon his decisions regarding what is necessary to prosecute the war. Hence the line-item veto problem.
2.7.2006 3:24pm
Anderson (mail) (www):
Oh my god, Klein again.

Will someone (because JJ won't) explain how the expressly granted pardon power is "functionally equivalent" to some sort of implied power to wiretap U.S. persons for national security purposes and without FISA compliance?
2.7.2006 3:24pm
Michael B (mail):
"I'm not sure the relevance of "28 years into FISA" or "for 26 years...." when for none of the first 25 were we at war (never during this time was an "AUMF" issued.)"

Yes, very much so. And reflective of an over-indulgent rhetoric which seeks to level-out or eclipse critical differences. Those differences, those sui generis qualities, are perhaps numerous but, as noted in a nearby thread, include: 1) the unique quality of the assymetrical warfare involved, 2) the far greater liklihood of a domestic terrorist incident, 3) the very nature of intelligence gathering as compared to the production of steel and 4) evolving technologies (communications and weaponry and delivery mechanisms).
2.7.2006 3:32pm
Kovarsky (mail):
At least at the end of the hearings, Gonzales did not appear to be making an avoidance argument to preserve the constitutionality of FISA.

His argument instead involved FISIA's remedial reference to amendment by subsequent statutes.

There are two potential problems with what I'm saying:

either,

(1) i misunderstood him, in which case i'd appreciate if someone had a transcript of this exchange at the end of the day

(2) he had multiple positions over why FISA remained in effect, and i only heard the latter.

by the way, the notion that the president's inherent powers can alter the meaning of THIS TYPE OF statute to preserve its constitutionality is rejected by every recent decision I can think of, most recently booker.

if a statute as a whole is unconstitutional, you can only excise a portion to preserve its constitutionality if you think (stated generally) congress would have still passed the statute.

when congress stated that this is the exclusive means by which electronic surveillance is to be conducted, otherwise it's a crime, and when they passed that against the backdrop of nixon administration abuses in the name of inherent authority, i think the idea that congress would have approved of the proposition that "this is the exclusive means of this type of tapping unless trumped by the president's executive authority" is not a logically appealing one.

the upshot is if you're going to rely on the post-Yoo notion of inherent powers (not the kind that refers to the residual authority to act where congress has not legislated) - in other words the kind of inherent power that is BOTH unenumerated AND not subject to congressional limitation - you can't use that theory to save FISA's constitutionality.
2.7.2006 3:34pm
Medis:
tas,

Yes, prior to FISA, President's relied on their "inherent powers".

There is no case which directly addresses your second question. Personally, I think with the possible exception of the dicta in In re Sealed Case, all the relevant authorities support the proposition that Congress could regulate the President's use of such inherent powers, including during war. But like I said, this exact issue has never been decided.

Anderson,

The "best" argument you will get is that because both such powers are "executive" powers according to John Locke, the fact that the Constitution explicitly grants one of those powers means that it implicitly grants the other, and thus they have the same legal status under our Constitution. If you don't find that argument convincing, I think you can feel free to move on.
2.7.2006 3:36pm
Medis:
Steve,

And personally, I find Clinton v. City of New York helpful in part because I would love for the President (any President) to have something like a line item veto for spending bills. But I understand why the Court struck it down, and think that decision was right as a matter of law even though it went against my strong policy preferences.

Similarly, I hope people on both sides of the NSA issue can see why the scenario you lay out portrays Congress in a reasonable light, but that nonetheless such an approach to the law might be unconstitutional.
2.7.2006 3:51pm
Jack John (mail):

The "best" argument you will get is that because both such powers are "executive" powers according to John Locke, the fact that the Constitution explicitly grants one of those powers means that it implicitly grants the other, and thus they have the same legal status under our Constitution.


Wow, one can caricature just like Dworkin with "best" arguments. Actually, my argument is that the Framers relied on John Locke as a source for what "executive" means. There is no argument by implication. The word "executive" is explicitly in the Constitution; it's in the Vesting Clause. I also think that Taking Care that the Law is Faithfully Executed entails an obligation to honor the text of the Constitution, even in the face of Congressional statutes, because the Constitution is supreme to Congressional statute. This does not amount to a repeal or an amending of a statute; it is simply the Executive making the determination that there is a constitutional conflict that must be resolved on the fly and exercising ad hoc discretion to resolve it. I will agree with Medis that it is true that an argument in favor for such flexibility in the Executive is supported by the political philosophy of the time of the Framing, e.g., John Locke's Second Treatise of Government. But that does not make the argument implicit. The President need not read John Locke or treat John Locke as an authoritative interpretative source. But he must read the Constitution in order to fulfill his Constitutional obligations and unless we are proposing that the President be a robot, he must interpret its text to do his job. Not only is an interpretation of these clauses that is consistent with John Locke plausible, it is also constitutional, see, e.g., Klein, yet all you hear from Medis' side is that it would violate FISA on their idiosyncratic and narrow-reading if individual liberties were at stake, i.e., someone had standing. But we aren't faced with that question. The question that faces us is must Congress' interpretation of the Constitution and a statutory scheme override the Executive's interpretation in a case where there's a gap or open question in the legal landscape, and the answer is obviously NO.
2.7.2006 3:58pm
A.S.:
I found the Lederman et al letter quite unpersuasive.

Here are just a few of the points I noted as I read it (I wish I had time to write more, but, as Orin says, these things backburner readily):

1. "The AUMF says nothing whatsoever about wiretapping in the United States during wartime" (letter p.2)

Duh. It doesn't say anything about shooting bullets or dropping bombs or any of the other things the military also does in wartime. So Lederman is arguing that the military doesn't have authority to shoot guns, because the AUMF doesn't specifically state they do?

2. "Since Congress specifically provided that even a declaration of war ... would authorize only 15 days of warrantless surveillance, one cannot reasonably conclude that the AUMF provides the President with unlimited and indefintie warrantless wiretapping authority." (letter p. 3)

Strawman. Nobody is claiming "indefinite and unlimited" authority. The authority claimed is quite limited - to only international calls. Obviously the 15 day provision is MUCH BROADER, since it would allow warrantless wiretapping of purely domestic calls too. Hence, this argument is quite backward.

3. "An amendment to FISA of the sort that would presumably be required to authorize the NSA program... is decidedly not the sort of thing that Congress would enact inadvertantly."

Why that presumption? The AG argues, and I agree, that no amendment is necessary. All that is necessary is a statute of the sort that satisfies the exception language of Section 109. This is exactly the same as Hamdi - no "amendment" to 18 U.S.C. 4001(a) was required there either -- and one was not enacted in the AUMF, advertantly or inadvertantly.

4. "But in addition to the arguments made in our initial letter, a critical difference in Hamdi is that Congress had not specifically regualted detention of American citizens during wartime." (letter p.3)

This is just flat wrong. 18 USC 4001 applies both during peacetime AND during wartime. So detention IS and WAS regulated during wartime. In fact, FISA presents exactly the OPPOSITE case as what Lederman et al claim, since 18 USC 4001 purports to regulate detention throught the entire war, including the first 15 days, while FISA purports to regulate surveillance only during the period other than those 15 days.

5. "But what is properly considered an implied incident of conducting war is affected by the statutory landscape that exists at the time the war is authorized." (letter fn3).

There is no authority provided for this whatsoever. Are Lederman et al just making it up out of thin air? I think so.

6. "It would make no sense, after all, to declare war without authorizing the President to use military force in the conflict." (letter p.4)

But the issue is HOW MUCH force is authorized by the AUMF. So he mere fact that there is typically an authorization to use some force is not relevant.

7. "The DOJ conceds in a footnote that its reading of the AUMF would require finding this language from Section 2511 to have been impliedly repealed." (letter p.4)

No, that's a deliberate misrepresentation of DOJ's argument. DOJ only argues that it would be impliedly repealed IF the text of FISA were clear that nothing other than an amendment to FISA could authorize additional electronic surveillance. But the main argument DOJ makes is that FISA is NOT clear that nothing other than an amendment to FISA could authorize additional electronic surveillance; rather, the best reading is that an amendment is NOT required. Accordingly, the "implied repeal" argument only would apply in very limited circumstances.

8. "The argument that conduct undertaken by the Commander in Chief that has some relevance to "engaging the enemy" is immune from Congressional regulation finds no support in, and is directly contradicted by, both case law and historical precedent." (letter p.5)

False. It has support in several cases, including, e.g., Curtiss Wright.

9. Discussion of Youngstown on p.6.

Lederman et al ignore that the Court in Youngstown found that the President lacks the "inherent authority" to seize the steel mills, not that Congress may override his inherent authority (i.e., that he has not exclusive authority). This case presents a different question: everyone accepts that the President has the inherent authoirty... the only Q is whether there is EXCLUSIVE authority.

Wish I had time to post my additional comments...
2.7.2006 4:00pm
Kovarsky (mail):
Medis,

I would urge you not to respond to JJ, as you know that we've all been through this drill yesterday on another thread. It's past the point of constructive debate.

Your secret emergency powers post yesterday was hysterical.

L
2.7.2006 4:13pm
minnie:
I am still analyzing carefully Gonzales' testimony and have found some very interesting things. It may be days before I can post them.

As I know nothing about technology and little about law, could someone knowledgable here please tell me what the legal implications are of a rogue element in a foreign nation eavesdropping on or intercepting communications that are sent from one United States person to another, particularly emails?

What if it were a foreign government itself? I.E., if a foreign government had the capacity to intercept emails between United States citizens and did so, what are the implications if they shared that info with people in our own government? Suppose in so doing they uncovered an imminent threat against our nation. If they shared that with our government, would our government, knowing how the information was collected, be acting illegally if it used solely that information to take actions against the individuals plotting against us?
2.7.2006 4:16pm
ThomasL (mail):
Essentially this is a political document, not a legal document. The Gang continues to assert the arguments rejected (or not considered) by the plurality in Hamdi, and offers some not very persuasive attempts to distinguish Hamdi from the present case. The Gang may be right that Hamdi was wrongly decided, and it is surely the case that the plurality opinion is deeply flawed. But the Gang should own up to the force of the argument. And the Gang should straightforwardly address the plurality discussion of AUMF, on its own terms, and the implications for the arguments the Gang makes. Not liking the only case on AUMF isn't an excuse for misreading or ignoring it.

As with any political document pretending to be a legal document, we find some sloppiness (references to the "first fifteen days of the conflict" for example, when the statutory requirement is to the fifteen days following a declaration of war).

And there are the usual overstatements and non sequiturs, and some flatly misleading statements.

We're told that "No precedent holds that the President, when acting as Commander in Chief, is free to disregard an Act of Congress, much less a criminal statute enacted by Congress, that was designed specifically to restrain the President as such." Which is a complicated way of saying, many of us believe to the contrary, but don't want to accurately describe our personal views for fear of detracting from the rhetorical force of the argument. (And what are we supposed to make of the repeated references to "criminal statutes" throughout? Does anyone seriously believe that that changes the separation of powers analysis?)

We're told that there "is no evidence that Congress considered tactics violative of express statutory limitations 'appropriate force.'" A powerful argument that is entirely contrary to the holding of Hamdi. Again.

We're told by the Gang that President Bush "recently conceded that Congress may constitutionally bar him from engaging in torture." That's explictly contrary to what Marty Lederman, one of the authors, said after reviewing the president's signing statement. Lederman described the signing statement as follows: "First, with respect to several provisions of the bill, the President signaled his intention to reserve his authority, as Commander in Chief, to ignore statutory mandates. [...] Most importantly, as to the McCain Amendment, which would categorically prohibit cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world, the President wrote: The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. " Translation: I reserve the constitutional right to waterboard when it will "assist" in protecting the American people from terrorist attacks

(It seems to me that Lederman is lucky this is a political document and not a legal one, given his professional responsibilities.)

The Gang never considers the possibility that the facts might be difficult for their position, as any good legal or scholarly effort would. For example, the Gang, when discussing FISA, never wonders whether it might be the case that the only way for the executive to undertake surveillance of particular al qaeda members is to intercept their communications inside the US (perhaps because of the structure of the network, as alluded to in prior discussions here). Given that there's a significant amount that we don't know, and that it could, even on the Gang's analysis, make a difference, why not discuss it? Because it's a political document, not a legal one.
2.7.2006 4:19pm
Ditty:
M. Lederman:

If my understanding is correct, in a case where "the signals are sent directly from an enemy headquarters overseas to a person located inside U.S. borders," *it is not covered by FISA* unless the interception occurs in the U.S. -- and even then, a court order allowing it would be fairly routine if the signal is intercepted at the "switch."

That's almost certainly *not* what this NSA program -- *any* of their NSA programs -- is about. What appears to be going on here is the tapping of phones here in the U.S., without a showing of probable cause that the targeted U.S. person is an agent of a foreign power. Is *that* a "fundamental incident" of war? I'm not saying it's not -- I'm merely suggesting that, 28 years into FISA, the "fundamental incidents" question is not terribly illuminating when asked at that level of detail.



I think you fundamentally misunderstand the nature of international communications, and indeed the nature of signals intelligence in general.

Are you trying to assert that there are no NSA facilities that are overseas that could in fact listen to communications between Al Qaeda and a person in the United States (which isn't the same as a "United States Person)?

This isn't about the tapping of phones in the traditional law enforcement sense, where a physical device has to be placed on a physical line, limited to one particular phone number. Get rid of that mindset completely, as it does you no justice to assert that this program is like that.

Most overseas communications (phone calls, e-mails, etc.) go by undersea fiber optic cable. If you look at the map here:
http://www.cybergeography.org/atlas/alcatel_large.gif
you will see that most of them coming into the US come from the UK, with whom we have a very close signals intelligence relationship with. The others also come from mostly 'friendly' countries, such as Germany, Japan, Canada, and Australia.

Since this program only focuses on international communications, how hard do you think it would be to intercept this stuff at the FOREIGN switches? Not very. In fact, really all you need is some software. That's it.

The rest of the international communications are handled by satellite. Most are routed through the cables, though, as they have less of a delay. Now, if a geosynchronous satellite is visible from the United States, it is certainly visible from other countries, many of whom we have 'relationships' with.

Now, I'm not a lawyer, and certainly no constitutional scholar, but as I have said before I have been at the sharp end of FISA as an intercept operator in the past, and I have a good working knowledge of how FISA is to be applied. Yet I have heard nothing that convinces me that FISA is being violated. That, of course, isn't to say it *ISN'T* being violated, just that I have seen nothing about this particular program that leads me to believe that it is being violated.

You assert that if these calls are being intercepted overseas, it's legal, and FISA doesn't apply. I agree, and I am telling you that almost certainly the interception is done overseas. If you check out the list of facilities at the Wiki page for ECHELON (http://en.wikipedia.org/wiki/ECHELON) you will see that out of 36 stations listed only 8 are in the United States.

Now, the analysis might well be done at Ft. Meade, but the actual interception is almost certainly done closer to the international (ie., Al Qaeda) target as that means you have less traffic that you have to wade through to get to the good stuff.
2.7.2006 4:27pm
Kovarsky (mail):
Minnie, depending on the nature of the interception, the substance of the communication intercepted, and the fulfillment of jurisdictional requirements, they could be liable under:

The Computer Fraud and Abuse Act
The Federal Wiretap Act
The Stored Communications Act
The Electronic Communications Privacy Act (an email statute)
Common Law Privacy Tort (unreasonable intrusion into another's seclusion)
2.7.2006 4:28pm
Kovarsky (mail):
Ditty,

There is no debate that if the switch is is overseas then FISA does not apply.

If that were the only way communications were being intercepted, the administration would not have conceded that FISA applied and that there were domestic taps. The debate is over the frequency of the domestic taps, not whether they exist.
2.7.2006 4:31pm
Medis:
Kovarsky,

I almost never address JJ directly--I don't find it productive. But sometimes I do talk about issues he has raised insofar as others are discussing them.

A.S.,

As a general aside, I think the two letters have to be read together, since the second letter incorporates the first by reference.

Anyway, I wanted to address your second point. You say:

"Strawman. Nobody is claiming 'indefinite and unlimited' authority. The authority claimed is quite limited - to only international calls. Obviously the 15 day provision is MUCH BROADER, since it would allow warrantless wiretapping of purely domestic calls too. Hence, this argument is quite backward."

This issue was explored quite a bit in the Gonzales hearing--or at least several Senators in both parties tried. As it turns out, Gonzales was not willing to say what authority they have claimed outside this particular program, nor to answer any other questions about the extent of that authority as he saw it. So, there may be limits to their claimed authority, but so far Gonzales hasn't suggested any in particular.
2.7.2006 4:31pm
Steve:
There seems to be a problem with the argument that the President chose to disregard FISA in reliance on Hamdi, but I just can't seem to put my finger on it.

Strawman. Nobody is claiming "indefinite and unlimited" authority. The authority claimed is quite limited - to only international calls. Obviously the 15 day provision is MUCH BROADER, since it would allow warrantless wiretapping of purely domestic calls too. Hence, this argument is quite backward.

Whether the authority to wiretap international calls forever and ever is more or less broad than the authority to wiretap international and domestic calls for only 15 days seems like a bit of a semantic argument. In any event, it seems very unwise for any defenders of the administration to hang their hat on the point that the only authority being claimed relates to international calls, because Gonzales' testimony made it quite clear that domestic calls are being wiretapped as well.
2.7.2006 4:33pm
Just an Observer:
With apologies to ThomasL:

His summary, could almost exactly be applied to the 42-page DOJ "white paper:"

Essentially this is a political document, not a legal document. The Gang administration continues to assert the arguments rejected (or not considered) by the plurality in Hamdi, and offers some not very persuasive attempts to distinguish Hamdi from the present case. The Gang adminstration may be right that Hamdi was wrongly decided, and it is surely the case that the plurality opinion is deeply flawed. But the Gang administration should own up to the force of the argument. And the Gang administration should straightforwardly address the plurality discussion of AUMF, on its own terms, and the implications for the arguments the Gang administration makes. Not liking the only case on AUMF isn't an excuse for misreading or ignoring it.
2.7.2006 4:37pm
jrose:
Given the Administration's defense of the warrantless surveillance program [the AUMF satisfies 1809(a)] and their refusal to ask the FISA court for warrants, isn't it reasonable to conclude that the surveillance 1) falls within the scope of FISA (1801) and 2) the Administration believes it would be turned down by the FISA court. What surveillance would meet both of those criteria and still be considered a fundamental incident of waging war per Hamdi?
2.7.2006 4:46pm
laboringundertheyoke:
Thoughts at work so pardon the stream (trickle) of consciousness.

I suppose what is most troubling about some of the comments above is that they miss the obvious. (Please no comments about how complex this issue is - I know it is.) FISA exists to regulate electronic surveillance. It is by its own terms the exclusive means. The President violated the express provisions of FISA based on the Administration's interpretation of the AUMF put forth by the Supreme Court in Hamdi three years after the fact - an interpretation grounded on an inapt analogy. detention is not at all like collecting SIGINT. It is not force by any definition, whether or not a fundamental incident of war.

Of course, complex analysis is required in this instance, and that is the purpose of this blog and its comments, but it all becomes so terribly frustrating to watch it happening while, in my view, the President is getting away with a terrible abuse of power and committing a crime (a continuing crime, at that). In light of that, I have a hard time "getting past allegations of criminality."

(I note that, in addition to the flagrant and dangerous legal violation, which stands alone, this whole affair annoys many Democrats [including this one - a right-leaning dem if there is such a thing - and huge fan of the Conspiracy] on a political level when they recall with anger how Republicans failed to "get past allegations of criminality" in the case of Clinton's testimony about his White House peccadillo, which was immaterial to Paula Jones' case and, therefore, didn't even rise to the level of perjury.)
2.7.2006 5:00pm
minnie:
There seems to be a problem with the argument that the President chose to disregard FISA in reliance on Hamdi, but I just can't seem to put my finger on it.

Can someone please explain to me how the President could have relied on a 2004 SC decision in 1999 or 2000, which is about the time that Gonazles said in his testimony "this program" was initiated?
2.7.2006 5:10pm
David Matthews (mail):
"in 1999 or 2000, which is about the time that Gonazles said in his testimony "this program" was initiated?"

Gonzales said that this program was initiated by the Clinton Administration?
2.7.2006 5:12pm
Anderson (mail) (www):
The "reliance on Hamdi" thing is a red herring. The WH relied on the principle enunciated in Hamdi, which existed before Hamdi.

(Their reliance is bogus for the reasons so often stated in comments here, but let's not get distracted.)
2.7.2006 5:19pm
Kovarsky (mail):
Minnie,

I don't think the administration says they "relied" on it in the sense that they realized they had authority as a result of it.

I think they "rely" on it to the extent that at the time the program was initiated (late 2001, i think), they had a view of the relationship of executive to congressional power that was X. they argue that Hamdi just confirmed X.

so the more accurate way for people to phrase the "reliance point" is that the administration's current legal position relies on Hamdi, not that the administration relied on Hamdi when implementing the program.

Also, and I've posted this before but it never gets old - here is the passage the administration quotes in support of the proposition that Hamdi "proves" that the NSA surveillance program is a "necessary incident" contemplated by the AUMF. I'll let you be the judge of whether that's what the Supreme Court is saying here:

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.
The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by “universal agreement and practice,” are “important incident[s] of war.” Ex parte Quirin, 317 U.S., at 28, 63 S.Ct. 2.
2.7.2006 5:24pm
A.S.:
In any event, it seems very unwise for any defenders of the administration to hang their hat on the point that the only authority being claimed relates to international calls, because Gonzales' testimony made it quite clear that domestic calls are being wiretapped as well

He did? Can you point me to the transcript where he said this?
2.7.2006 5:25pm
Medis:
Anderson,

Although I suspect they were actually relying more on the arguments they made in Hamdi than the principles the Court actually accepted in Hamdi.
2.7.2006 5:26pm
Steve:
GONZALES: I want to repeat what I said earlier in the hearings in terms of I want to assure you that while domestic to domestic is not covered under the terrorist surveillance program, we are using all the tools available, including FISA, to get information regarding those kind of communications.

In other words, purely domestic surveillance doesn't take place under the specific program about which Gonzales testified, but it does take place under some other program, and not always pursuant to the exclusive methods prescribed by FISA. The existence of these additional programs was explored in Prof. Kerr's previous post.

We do not know the specific parameters of the domestic spying program, of course, nor the legal justification for it. I understand why purely domestic wiretapping might be tougher to defend in the court of public opinion than international wiretapping, but I really don't understand why there would be a constitutional distinction. Assuming, for the sake of argument, that it is a "fundamental incident of war" for the President to eavesdrop on a conversation involving an al-Qaeda member overseas, I don't get why it is not similarly a fundamental incident of war to eavesdrop on a conversation between two al-Qaeda members in the US.
2.7.2006 5:39pm
Kovarsky (mail):
steve, orin had an entire post on this "revelation" yesterday.
2.7.2006 5:52pm
Medis:
Steve,

To be "fair "to Gonzales, I don't think it was at all clear what he was saying about purely domestic warrantless wiretapping. I think that is a product in part of this tension between claims (that they are doing anything that would be effective, but also that their programs are limited), and they are having a hard time figuring out what to say that won't make one group of people or another angry/worried.

Of course, that isn't much of a defense, since it implies that the truth is more or less irrelevant to his decisions about what to say. But such is life in a post-modern Presidency.
2.7.2006 5:54pm
Kovarsky (mail):
Question/Hypo-

So let's say Congress wants to pass something that attempts to reject the administration's interpretation of the AUMF.

forget for now the distinction between a resolution and a statute. it strikes me that the text of that congressional attempt would look like one of two things:

(1) W, we didn't mean to give you THAT power, or

(2) W, whatever the grant in the AUMF, you don't have that power anymore

this is where the difference between a resolution and a statute come in. i don't think (1) is really a viable option because the composition of congress is different, so they can't say what a previous congress meant. so they have to say (2). if they have to say (2) i don't think it has all that much authority anymore as a mere resolution, i think it would have to be a statute. and if it has to be a statute, the president can veto.

So the president could effectively require a contemporary supermajority to affirm the proposition that "half our members had/have this understanding."

so, my question is, would the president really veto something like that?
2.7.2006 5:58pm
A.S.:
Oh, you are referring to the same stuff as Orin's earlier post? I thought that post was pure, Oliver Stone level conspiracy theory.

What makes anyone believe that he is referring to some super-secret illegal domestic electronic surveillance, as opposed to, say, FBI agents knocking on doors and asking people?

Sheesh.
2.7.2006 6:00pm
Bruce Hayden (mail) (www):
Ditty, et al.

We have hit the technology side of this a lot in the past, but I am repeating some of this because some may have missed our previous discussions here. First though note from your Alcatel fiber picture that a lot of fiber communications to Europe do not go through the UK. I note a lot running around the top of the UK into maybe Belguim. Just as importantly, none of the fiber optic communications running from the West coast to Asia run through the UK. Yes, it appears a small amount run down to Australia and New Zealand, both also partners in ECHELON. But the bulk appear to be to Japan and China (Hong Kong?). And, given that Afganistan and Pakistan are pretty much half way around the world, I would think it logical that a decent percentage of the fiber traffic from there here would be routed east instead of west, arriving on our West Coast (or Hawaii).

The basic problem I see is that it is technologically quite difficult to tap fiber optic communications other than at the switches. There are technological reasons for this, including that any tapping would most likely diminish signal strength, that they are transmitted utilizing Time Division Multiplexing (TDM), and, now, multiple frequencies of light are being utilized. One reason that TDM is important here, above and beyond the extremely high number of calls being multiplexed, is that the call identification information is transmitted "out of band", typically on another TDM channel. That means that the call identification information cannot be picked up during a call, and picking it up during call setup is technologically problematic, while it is most likely easily available at the switches, even during calls.

Note though that this is a fairly recent problem. Copper was much more easily tappable off-shore, and your typical communications satellites are in geosynchronous orbit - which are, by necessity, not located over the U.S., as they have to be located over the Equator (I say typical here, since Iridium utilizes a constellation of lower orbit satellites that are always moving relative to the Earth).

In any case, what this means under FISA is that in order to surveil calls coming into this country over fiber optic cables, some, if not most, of the calls have to, by necessity, be surveiled within this country. And that takes the surveilance, to the extent that FISA applies, from 50 USC 1801(f)(1) to (f)(2) (defining "Electronic Surveilance"). This is critical, since under 1801(f)(1), in order to be "Electronic Communications", it has to be the interception of communications of a "targetted" "U.S. Person" in the U.S. This excludes illegal aliens AND anyone not targetted - such as when OBL calls someone here, since he is the targetted person, not they. However, when the interception is in the U.S., 1801(f)(2) would apply, and the standard then becomes whether one party is in the U.S. Who is targetted is irrelevant, as is whether they are in this country legally.
2.7.2006 6:03pm
Steve:
some super-secret illegal domestic electronic surveillance

When it comes out in a week or two that there is, in fact, wholly domestic surveillance going on, the same people who currently dismiss it as a "super-secret illegal program" will be defending it as an "obvious" part of the President's warmaking powers. You can take that to the bank.

I'll ask for the umpteenth time: what is the constitutional distinction between a purely domestic conversation and an international conversation, if al-Qaeda members are involved either way? Why is eavedropping on one "obviously" an inherent power of the Presidency that cannot be restricted, and eavesdropping on the other is "obviously" illegal?
2.7.2006 6:06pm
Medis:
Kovarsky,

I think they could have something like a "Sense of the Senate/House" resolution on (1), although I agree that wouldn't really do anything.

A.S.,

And what makes you think he isn't? Of course, he would probably delete "illegal", because it wouldn't be illegal as long as the President thought it was necessary and appropriate.
2.7.2006 6:07pm
Jack John (mail):

I would urge you not to respond to JJ, as you know that we've all been through this drill yesterday on another thread.


This from someone who admitted discussing a case without having read it. What's more, this from someone who claimed I made an argument about institutional competence because I made an argument that institutions have a right to dignity from other institutions regardless of their competence.
2.7.2006 6:10pm
dk35 (mail):
I just thought I'd point out the impact that Marty Lederman et al. are already having in Congress. Senator Feingold referred to them today on the Senate floor in his statement denouncing Bush's actions.

(the reference is toward the end of Feingold's speech, about 13 paragraphs from the bottom).
2.7.2006 6:21pm
dk35 (mail):
Oops sorry, couldn't get the link to work. Anyway, you can find Feingold's statement easily by going to his website homepage at feingold.senate.gov.
2.7.2006 6:23pm
Kovarsky (mail):
A.S.,

I don't think that you are being quite true to the testimony. There were a number of times where the AG took great pains to clarify that he was testifying about "this particular NSA program" and when asked flat out whether there were other NSA programs doing the sorts of things that were the subject of yesterday's inquiry he refused to answer on the grounds that it was outside the scope of why he was called to testify.

I think there is a benign interpretation, but it certainly sounded like a Mark McGwire moment. The benign interpretation comes in light of the exchange about Goldsmith, Comey, and Ashcroft's dissent about the NSA program. Gonzales himself confirmed that these people had dissented, but "not about the program" under scrutiny yesterday.

That he made these comments is undeniable. The malign interpretation is that there are other contemporary domestic programs in operation. The benign interpretation is that, because comey and ashcroft ultimately signed off, their disagreement was not with the particular iteration of the program, uh, scrutinized yesterday.
2.7.2006 6:26pm
KMAJ (mail):
I am simply amazed at the willingness to obfuscate behind legal parlance. We would seriously be in trouble if lawyers fought wars. They would bog themselves down meandering the legalisms of actions before taking any action, and would probably be taking that action too late.

To whit, the most egregious issue, in my opinion being debated that somehow intelligence gathering is not a 'fundamental incident' of war. Only someone who wants to lose a war would proffer such an argument. The Lederman letter goes one step further in trying to water down the importance of intelligence, by changing the word 'fundamental to 'implied':

"But what is properly considered an implied incident of conducting war is affected by the statutory landscape that exists at the time the war is authorized."


To me, that is political pandering and semantic manipulation. Anyone with any knowledge of warfare understands the importance of timely and efficient intelligence gathering. Anyone, Constitutional expert or otherwise, who claims differently is merely posturing. That legal minds find room for debate on such an issue is a scary proposition. I challenge anyone to find a war, in modern history, where intelligence gathering did not play a critical role in the outcome of that war. Secondly, cite any war where courts were required to authorize intelligence gathering. Thirdly, Pearl Harbor is the only other time we were hit on our own soil, that can parallel 9/11, but unlike the aftermath of PH, the US remains a part of the theater of the WOT, bringing a different aspect into the equation. Fourthly, also unlike WWII, where spies were in our midst to gather intelligence, the sleeper cells are the equivalent of military units on our soil waiting to strike. Statute or referendum, the Constitution is preeminent when there is a conflict.

I have not seen cited in any debate, THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM issued September 25, 2001, after the AUMF except to dismiss it because it was written by John Yoo and ignoring the citations to focus and attack his unitary executive theory.

It cites many justifications for executive authority, the unitary executive was only a very small part of this memorandum:

The President's constitutional power to defend the United States and the lives of its people must be understood in light of the Founders' express intention to create a federal government "cloathed with all the powers requisite to [the] complete execution of its trust." The Federalist No. 23, at 122 (Alexander Hamilton) (Charles R. Kesler ed., 1999). Foremost among the objectives committed to that trust by the Constitution is the security of the Nation. (1) As Hamilton explained in arguing for the Constitution's adoption, because "the circumstances which may affect the public safety are [not] reducible within certain determinate limits, . . . it must be admitted, as a necessary consequence that there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficiency." Id. (2)

"It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981) (citation omitted). Within the limits that the Constitution itself imposes, the scope and distribution of the powers to protect national security must be construed to authorize the most efficacious defense of the Nation and its interests in accordance "with the realistic purposes of the entire instrument." Lichter v. United States, 334 U.S. 742, 782 (1948). Nor is the authority to protect national security limited to actions necessary for "victories in the field." Application of Yamashita, 327 U.S. 1, 12 (1946). The authority over national security "carries with it the inherent power to guard against the immediate renewal of the conflict." Id.


We are having this discussion today because, citing Dr. Christopher Kelley, "the faith and trust placed into the presidency was broken as a result of the lies of Vietnam and Watergate," by LBJ and Nixon, which resulted in a congressional assault on presidential prerogatives that culminated in FISA. Anyone who claims that FISA was not a deliberate incursion on executive branch authority is deceiving themselves. The legislative branch took advantage of a weak executive to expand their power in unprecedented fashion. The powers that Bush is claiming for the executive branch, within the narrow scope of the NSA surveillance program, do not even approach the level of executive branch authority employed by all presidents through Nixon. One can only conclude that critics desire a weak executive branch that is subservient to the other two branches, something that would have the Founding Fathers rolling over in their graves.

"Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number." The Federalist No. 70, at 392 (Alexander Hamilton).

"Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." Id. No. 74, at 415 (Alexander Hamilton).

Justice Joseph Story: "[i]t may be fit and proper for the government, in the exercise of the high discretion confided to the executive, for great public purposes, to act on a sudden emergency, or to prevent an irreparable mischief, by summary measures, which are not found in the text of the laws." The Apollon, 22 U.S. (9 Wheat.) 362, 366-67 (1824).


In another intersting legal opinion cited in the memorandum:

The Constitution entrusts the "power [to] the executive branch of the government to preserve order and insure the public safety in times of emergency, when other branches of the government are unable to function, or their functioning would itself threaten the public safety." Duncan v. Kahanamoku, 327 U.S. 304, 335 (1946) (Stone, C.J., concurring).


Could the Congress' actions/functioning be seen as threatening public safety ? The public certainly supports the NSA program.

Often the strawman rebuttal claims that this is an exposition for unlimited executive branch authority. Such claims are fraudulent on their face, as no one has claimed surveillance rights on purely domestic communications. In fact, there has not been any attempt to wholesale delegitimize FISA, instead, the FISA process has been used more by this executive than any president since its inception. The 9/11 Commission staff after report even stated that the FISC was overloaded and bottlenecked creating bureaucratic and burdensome logjam that subverted the ability to get warrants issued in a timely fashion and was a hindrance to carrying out the recommendations of the 9/11 Commission.

Clearly, no case like this has come before the court. Every case that has dealt with inherent powers has affirmed them. I find it a relevant analogy to equate the handling of this debate/issue to Nero fiddling as Rome burned.
2.7.2006 6:29pm
Kovarsky (mail):
KMAJ,

Actually, no case has ever affirmed inherent authority when it has come into conflict with a statute.

That's because the traditional understanding of inherent executive authority was that, whereas Congres was limited to its authority enumerated in the Constitution, the Executive could act on unenumerated power so long as Congress did not address it.

So while you are in one sense correct, the court has many times affirmed what it has called inherent authority, it has affirmed it only in the congressionally unaddressed sense I articulated in the previous paragraph.
2.7.2006 6:50pm
Jack John (mail):
KMAJ: Clearly, no case like this has come before the court. Every case that has dealt with inherent powers has affirmed them.

I made this point yesterday and was treated to a bouquet of ad hominems.

Given that no one has standing to sue, I wonder why “Medis and his Merry Gang of Anarchists for Youngstown” believe that a legal determination — other than the determination that the President has made in accordance with his constitutional obligation — is forthcoming?

The arguments we are trading back and forth here are arguments in favor of Congressional decision-making against arguments in favor of Executive decision-making; and Congress does not have standing to sue the President for his enforcement of a law; even if it did, it would constitute a "generalized greivance" that is not justiciable in any federal court, including the Supreme Court, under Article III of the Constitution. Why is it that they fail to recognize the legal distinction between:

1. a separation of powers argument by the Government versus an individual rights argument made by a person

and

2. a separation of powers argument by one branch of Government versus a separation of powers argument by another branch of Government

Specifically because Congress is not a person, legal principles enshrined in context 1 seem not to travel well to context 2. What is their argument to the contrary?

They do not have one, it seems.
2.7.2006 6:54pm
A.S.:
I knew there was a reason I didn't comment on that last thread!

There were a number of times where the AG took great pains to clarify that he was testifying about "this particular NSA program" and when asked flat out whether there were other NSA programs doing the sorts of things that were the subject of yesterday's inquiry he refused to answer on the grounds that it was outside the scope of why he was called to testify.

I'm curious... what do you think the NSA was doing before "this particular NSA program" commenced in 2002? Do you think they had tens of thousands of people sitting around twiddling their thumbs waiting for George Bush to be elected so that he could start "this particular NSA program"? Or do think maybe, just maybe, the NSA already HAD other programs that were started even before George Bush was elected?

I don't mean to be flip or sarcastic, but the allegations Orin implied on that thread, and which were made by the commenters there and here, seem to me to be pure Oliver Stone territory. Sorry.
2.7.2006 7:02pm
Justin (mail):
KMAJ and Jack John,

There is very much a remedy for the President violating a law of Congress, one supported by both the text and precedent. Impeachment.

While as a political reality, Bush won't be impeached - and the GOP probably won't pay a price for it, so the Constitution will - that doesn't provide Congress with the shield of criticism of whether Bush *should* be impeached, or whether the public *should* charge a price against Congress for abdicating its oversight responsibility.

After all, if a political remedy just meant no remedy, then why bother have a Constitution at all - the Courts lack their own army, remember. Of course, the same argument can be made for why the President should have to give up power just because of a silly thing such as losing an election - voters lack an army too.
2.7.2006 7:05pm
Kovarsky (mail):
A.S.,

Actually, and I think I made this clear in my post, that was a pretty obvious inference from Gonzales' concession that Goldsmith, Comey, and Ashcroft dissented on at least one NSA program, albeit not the one that was the subject of yesterday's hearings.

And obviously I'm aware that the NSA spied before 2000, but the program from which Goldsmith, Comey, and Ashcroft dissented was obviously after Bush took over, since none of them occupied a role in the administration before that. And I'd bet the farm that their dissent involved a program after 2002, since Goldsmith was not in the administration at that time, but a professor at the University of Virginia.

Could you please clarify what part of my point you disagree with, because it isn't very clear. I advanced an entirely benign explanation for Gonzales' remarks (that he was referring to a previous iteration of the administration's program), but the concession that those three people did in fact dissent from one of the administration's NSA programs is undeniably in the transcript.
2.7.2006 7:10pm
Steve:
Given that no one has standing to sue...

I see this point made a lot. But it isn't true, is it? Obviously, anyone who is being wiretapped has standing to go to court and argue that the wiretap is illegal and should be enjoined, at a minimum.

Of course, because this is a secret program, the people who have standing to challenge it don't know that they have standing. But that's purely a logistical challenge. If someone finds out that they were targeted - and where there is one leak concerning a program, there can always be more - they could surely bring a case.
2.7.2006 7:15pm
Jack John (mail):

Justin: There is very much a remedy for the President violating a law of Congress, one supported by both the text and precedent. Impeachment.



Justin,

I disagree with you. There is more than impeachment. There are also elections. I do not understand why you chose to direct this point at me, as I make it all the time and I agree with you. I think you are mischaracterizing, then, my comments that the Constitution is supreme to Congressional statute. I have yet even to use the word "remedy" in these threads.
2.7.2006 7:18pm
Jack John (mail):

Obviously, anyone who is being wiretapped has standing to go to court and argue that the wiretap is illegal and should be enjoined, at a minimum.



1. You are speculating that any such person exists. Note your use of the terms "obviously" and "anyone". Standing -- even pleading alone -- requires specificity.
2. You mean foreign aliens or nationals who are members of Al-Qaeda?
2.7.2006 7:20pm
Kovarsky (mail):
Justin,

I am not an expert in impeachment, but it is my understanding that the president would not be impeachable just because he violated FISA, even if it is a criminal offense.

But again, I'm an IP/habeas guy, so this isn't my wheelhouse.
2.7.2006 7:20pm
Justin (mail):
or whether the public *should* charge a price against Congress for abdicating its oversight responsibility.

And this was in response, in part, to your 6:54PM post.
2.7.2006 7:22pm
Jack John (mail):
Kovarsky,

I think he is assuming that the President's actions contravene the Fourth Amendment and the President knows so.
2.7.2006 7:23pm
Bruce Hayden (mail) (www):
I hate it when people (like Lederman) lock up their .pdf files so that you can't copy text from them. Responding means having to hand retype the sections one wishes to comment upon.
In considering the extent of the "intrusion" FISA imposes on the President, it is important first to note what FISA does and does not regulate. Administration defenders have repeatedly argued that if the President is wiretapping an al Qaeda member in Afghanistan, it should not have to turn off the wiretap simply because he happens to call someone within the United States. The simple answer is that nothing in FISA would compel that result. FISA does not regulate electronic surveillance acquired abroad and targeted at non-U.S. persons, even if the surveillance happens to collect information on a communication with a U.S. person. Thus, the hypothetical tap on the al Qaeda member abroad is not governed by FISA at all. FISA's requirements are triggered only when the surveillance is "targeting [a] United States person who is in the United States," or the surveillance "acquisition occurs in the United States." 50 U.S.C. § 1801(f)(1)-(2).
This, of course, ignores that the only realistic place to tap a call from al Qaeda to the United States is in the United States. Rather all these "Constitutional Scholars" seem to be operating in a bubble separated from reality. The reason that the calls are tapped in the United States is because that is where they have to be tapped. There is no other place to tap the vast majority of international calls that come into this country via fiber optic cables, except for those coming in from another UKUSA country, except at the switches in the U.S.

This, this is a classic strawman argument.
Second, even when the target of surveillance is a U.S. person, or the information is acquired here, FISA does not require that the wiretap be turned off, but merely that it be approved by a judge, based on a showing of probable cause that the target is a member of a terrorist organization or a "lone wolf" terrorist. See id. §§ 1801(a)-(b), 1805(a)-(b). Such judicial approval may be obtained after the wiretap is put in place, so long as it is approved within 72 hours. Id § 1805(f). Accordingly, the notion that FISA bars wiretapping of suspected al Qaeda members is a myth.
The idea that a wiretap is put in place and then the call is recorded is ludicrous. This is not domestic surveilance. The NSA doesn't find out that al Qaeda is calling someone, drive up to their house, and put a tap on their phone at the nearby box, or, indeed, at the local office of their phone company. Rather, it is done at the major international switches, and the actual "taps" are already long installed. Again, evidence that the Constitutional Law Scholars are living in a technological bubble.

They also minimize the requirements for Emergency Orders under 1805(f). The paperwork requirements are essentially the same for Emergency Orders as for regular orders, but the DoJ has less than 72 hours to provide such, instead of the weeks that they usually require. Also, it should be noted that there is a lot of winnowing going on. A huge number of calls are initially gathered, then a smaller number actually listened to, and a much smaller number actually listened to. If every call recorded had to be authorized by such an Emergency Order, the entire program plus the entire DoJ would come to a screaching halt. (apparently, the DoJ gets around part of this by not considering it survielance until at least when the calls are listened to by a real live person).

Finally, while an argument can be made that 1805(f) allows for retroactive orders, that is not clear from its wording. Rather, its plain wording would seem to mean just the opposite - which would be in line with the authors' misconception or mischaracterization of what is really going on. (I note though that the PATRIOT Act extension from 24 to 72 hours did seem to indicate that retroactive orders were covered).
Because FISA leaves unregulated electronic surveillance conducted outside the United States and not targeted at U.S. persons, it leaves to the President's unfettered discretion a wide swath of "signals intelligence". Moreover, it does not actually prohibit any signals intelligence regarding al Qaeda, but merely requires judical approval where the surveillance targets a U.S. person or is acquired here.
In other words, taking into account the relevant technology, since it is possible to tap some, most likely a minority, of the international traffic coming into this country from outside the U.S., they argue that the President's discretion is is unfettered.
2.7.2006 7:26pm
Jack John (mail):
Justin,

I still fail to see why you replied to me, as I haven't any argument with you, unless, as Kovarsky points out, your theory of grounds for impeachment is probably way off-base. My post at 6:54 relates to legal arguments. I never say there are no political remedies, or no remedies at all. I say that Article III courts cannot hear generalized greivances. I would advise you to re-read my post at 6:54, as your criticisms of KMAJ are, frankly, irrelevant to it.
2.7.2006 7:27pm
Steve:
1. You are speculating that any such person exists. Note your use of the terms "obviously" and "anyone". Standing -- even pleading alone -- requires specificity.

Speculating? Do you really think the Attorney General spent a day before Congress testifying about a program that has never wiretapped anyone?

2. You mean foreign aliens or nationals who are members of Al-Qaeda?

Of course not. If the Attorney General isn't going to contend that the only people who have been wiretapped are "foreign aliens" or nationals who are members of al-Qaeda, I hardly think you should waste your time attempting to make this a debating point.
2.7.2006 7:28pm
Kovarsky (mail):
Steve,

A more appropriate way of putting this is that "anybody who knows they have been tapped has standing to sue." The problem is that this is a null set. Unless you cannot personally allege a sufficient probability of injury "tapping," you run into the problem that you cannot bring a lawsuit because it is nonjusticiable.

There are two components to standing though - constitutional components and what i'll call "mere default" components, that congress can override. Congress cannot override the constitutional components, but it can override the "mere default" (also called "prudential") components.

Some people have suggested that Congress could override some of the jurisprudential requirements and attempt to confer standing on people with a heightened likelihood of being tapped (say, Muslims that frequently make calls to the middle east), but Congress cannot override the Constitutional standing requirements (which are less exacting than the jurisprudential ones).

There are two problems with this course of action (well, problems for people that think the constitutionality of the program should be adjudicated):

(1) It's not likely that Congress would actually do this, as it would subject every Congressperson in another "soft on terrorism" charge

(2) Even if you could get Congress to confer standing on a group like that, it still isn't clear that a member of such a group would satisfy the constitutional standing requirements, which Congress can't do anything about.

I don't know whether you're a lawyer or not, so I apologize if that sounded condescending....

Lee
2.7.2006 7:29pm
Bruce Hayden (mail) (www):
Whoops. The middle section should read "A huge number of calls are initially gathered, then a smaller number actually listened to, and a much smaller number actually acted upon."
2.7.2006 7:29pm
Jack John (mail):

Steve: Do you really think the Attorney General spent a day before Congress testifying about a program that has never wiretapped anyone?



1. This is not an answer. It is a question. It seems you have no answer to the question, "Why are you pretending that aimless speculation is an argument?"

2. Again, your reply is more speculation. Please name one of these people, if he or she exists. Pleading and standing require specificity, especially cognizable harm.

3. I think that those on your side of the debate would have a problem with information-gathering programs even if those programs had not gathered any information. For example, the Total Information Awareness program.

4. I think Congress, like any branch of government, has an interest in asserting power regardless of whether there is a sound basis for it. That Gonzalez was haled into a hearing does not establish that Congress had a sound basis for doing so.


Steve: If the Attorney General isn't going to contend that the only people who have been wiretapped are "foreign aliens" or nationals who are members of al-Qaeda


I am not limited by what the AG has said. But if the AG has refused to confirm or deny X, you are committing a fallacy to "deduce" from ignorance the truth-value of X.
2.7.2006 7:36pm
Tom Holsinger (mail):
Point of information:

Contentions as to when FISA does and doesn't "apply" can create confusion. FISA does not "apply" to "foreign electronic communications" - those with one end in a foreign country, as surveillance of such is defined as not being "electronic surveillance".

FISA "applies" to all "domestic electronic communications" - those with both ends in the U.S., whether or not the actual surveillance of those takes place outside the U.S., provided the U.S. govt. does the surveillance. If Canada does the surveillance and provides the intercepted communications to us for analysis, FISA does not apply. As a practical matter, though, the computer programs controlling the surveillance determine in very close to real time, i.e., almost instantaneously, whether to even begin analyzing a given communication. Only the U.S. govt. has this capability - it is just too expensive for others.

The critical point is IMO really whether FISA's warrant requirement applies to surveillance of a given domestic communication. This raises the issue of FISA's many exceptions to the warant requirement.

So please distinguish between whether FISA itself applies to surveillance of a given "domestic communication", and whether FISA's warrant requirement applies. The two are not the same.

The Bush administration is IMO trying very hard to confuse matters because it likes the unregulated status quo. The Democrats are trying hard to confuse matters because their objective is partisan advantage. Lefties are confusing things because their objective is America's defeat.

This makes it difficult enough to follow the discussion even if people here try to use common definitions. Many aren't trying.
2.7.2006 7:36pm
Bruce Hayden (mail) (www):
Impeachment is the remedy for the President overstepping his authority. The problem is that it won't happen. Period. The Republicans control both Houses of Congress, and, in particular, in regards to Impeachment, the House, and there is little likelyhood that enough of them are going to defect to impeach a Republican president, since they have to go back home and get reelected every two years, and most of Red State America is just fine with this program. Any of them who do defect and vote for impeachment here are likely to find themselves in a major fight in their own party for renomination. And this isn't going to change in the next election, given how well the Congressional seats have been Gerrymandered. Besides, few, if any, Republican Congressmen want George W. Bush to join Clinton and Johnson as the only impeached presidents.
2.7.2006 7:38pm
Jack John (mail):

Kovarksy: A more appropriate way of putting this is that "anybody who knows they have been tapped has standing to sue." The problem is that this is a null set.



I am not certain that "anybody who knows" is quite right.

a. For certain, nonresident aliens (let's leave ambassadors and consuls out of this) do not have standing to sue.

b. We are also assuming that sovereign immunity does not preclude suit.

c. Moreover, under what law can they sue?
2.7.2006 7:43pm
Bruce Hayden (mail) (www):
Let me note that because it is highly likely that the vast bulk of the wiretapping is being done on U.S. soil, according to the wording of FISA, it is irrevant who is targeted, or whether they are in this country illegally. They could have illegally snuck across the Rio Grande last week, and are calling home to report that they are now here and ready to commit another act of terrorism, and listening to that would presumably be “Electronic surveillance” under FISA (50 USC 1801(f)(2)).
2.7.2006 7:44pm
Jack John (mail):
Ok, Bruce, where is FISA's grant of the right to sue or repeal of sovereign immunity?
2.7.2006 7:48pm
Jack John (mail):
Am I missing a provision of FISA that furnishes the right to sue?
2.7.2006 7:49pm
Bruce Hayden (mail) (www):
As to elections, George W. Bush is probably not going to run for any office ever again in his life. As for Congress, it is possible that some Republican Senators might take a fall for supporting the President, but that is unlikely. Even more unlikely though is the Republicans losing the House, given how well it is now Gerrymandered, regardless of what happens. There just aren't enough swing districts left any more. Add to that, that a lot of the constituants for Republican Congressmen (and women) are in support of the NSA program. Voting against it would be much more likely to lose them their seats than voting for it or for the President.
2.7.2006 7:50pm
Jack John (mail):
I agree with your analysis of the remedies, Bruce, but why do you think FISA grants a right to sue?
2.7.2006 7:51pm
Bruce Hayden (mail) (www):
Jack,

I have looked back through the thread and have to conclude that I am the Bruce referenced in your last couple of posts. I am not sure where Sovereign Immunity or the Right to Sue has entered into anything I have said. As far as I can see, I haven't come close to addressing those issues, nor do I intend to. I will leave that to those want the NSA program stopped.
2.7.2006 7:54pm
Jack John (mail):
Hahahaha. Fine with me.
2.7.2006 7:58pm
Kovarsky (mail):
Steve,

And I also forgot to point out in my skeletal sketch that the following entities also do not have standing:

lions

spatulas

the dread pirate roberts.

I'm sorry if my summary therefore confused you.
2.7.2006 7:59pm
Bruce Hayden (mail) (www):
My position all along is that regardless of what all these Constitutional Scholars, et al. say about what they think the law is or isn't, the Administration, IMHO, is going to win, should it ever get to the Supreme Court.

Working backwards, and simplyfying arguments I have made before, the Supreme Court can't afford to stop this program because if they did, and there were another attack that might have been prevented by it, they would lose a lot of credibility. That leaves them two options, either find for the Administration on Article II, or on statutory grounds. Article II is unlikely because that is a Separation of Powers issue, and they try to stay out of those, esp. if there is any other way out. And, the Administration keeps pounding that there is - either that the AUMF effectively amends FISA in this circumstance or that FISA doesn't apply.
2.7.2006 8:00pm
Just an Observer:
Bruce Hayden:

This, of course, ignores that the only realistic place to tap a call from al Qaeda to the United States is in the United States. Rather all these "Constitutional Scholars" seem to be operating in a bubble separated from reality. The reason that the calls are tapped in the United States is because that is where they have to be tapped. There is no other place to tap the vast majority of international calls that come into this country via fiber optic cables, except for those coming in from another UKUSA country, except at the switches in the U.S.

This, this is a classic strawman argument.

I don't think this is a strawman at all, nor is it even hypothetical.

It may be an artifact of changing technology that the best place to tap international telecommunications is now in the United States, when it used to be easier to intercept from copper cable, satellite or microwave. But by the straightforward application of statutory definitions, these communications actually do fall within FISA's definitions.

It may be that if FISA were updated to reflect the state of technology, part of this problem would go away because NSA would have the same technical ability to intercept roughly the same set of calls it could in the older media. The proper venue for addressing such amendments would be Congress.

Even if that technical change were effected, however, the intent of FISA would remain if a U.S. person on one end of the communication were "targeted."
2.7.2006 8:08pm
Kovarsky (mail):
Bruce,

I doubt the Supreme Court would strike the program down on 4th amendmnet grounds.

If it strikes it down on separation of powers grounds I promise you Congress will get it back online within weeks.

Also, Bruce, you seem to be pretty well informed about this sort of stuff. The administration keeps claiming that this program might have allowed them to tap those two guys in San Francisco, and therefore stop 9/11. But I was under the impression that they had enough info to get warrants to tap on these two guys under any procedure - FISA, Title III - so it's not that the absence of the program stopped them from listening, because they didn't secure the tap from any other available channel.

I honestly don't know what to make of those claims, and I'd be interested in hearing an informed opinion.

L
2.7.2006 8:10pm
Steve:
A more appropriate way of putting this is that "anybody who knows they have been tapped has standing to sue." The problem is that this is a null set. Unless you cannot personally allege a sufficient probability of injury "tapping," you run into the problem that you cannot bring a lawsuit because it is nonjusticiable.


Let me respond in plain English, since a lot of people here seem to be trolling and playing word games.

If my uncle in the NSA calls me tomorrow and tells me that I am being wiretapped, then I have standing to sue and seek an injunction against what I allege to be illegal wiretapping. Agree?

If you accept this scenario as valid, then the problem is not that no one has standing, the problem is that the names of specific individuals have not been leaked as yet.
2.7.2006 8:15pm
Bruce Hayden (mail) (www):
Maybe I need to explain where I am coming from. FISA was enacted at a time when there was a much cleaner distinction between domestic and international surveilance, and when it was possible to tap a lot of our international traffic outside the U.S. Now, that is no longer the case. Add to that back then taps were pretty much for single lines. Today, the NSA can dynamically monitor thousands of calls at a time. This capability was not even on the horizen when FISA was enacted.

So, the entire paradigm has shifted, and FISA hasn't shifted with it. The President believes he has a job to do - in this case, to protect the American people against another 9/11 type terrorist attack, esp. on our own soil. I think he sees that as being even more important than conforming to a technologically obsolete law. Yes, maybe that means that he is acting above the law - which is where impeachment comes in - if Congress believes that he truly is acting above the law, they can impeach him, but if they do, they will face the consequences, and because of that, they won't.

I see the President having three alternatives: He can do what he thinks is right and best in protecting the American people; he can follow the letter of FISA, and, in his mind, opening us up to another 9/11 type attack; or he can have Congress amend FISA. The problem with the third alternative from the Administration's point of view is that putting everything they are doing to combat terrorism before Congress would compromise too many operational details, and, thus, compromise their effectiveness. This President appears to be taking the first alternative.

By most indications, the President is trying to stay within the letter of FISA, etc. as much as possible. But I think that the plain reality is that he can't, without seriously compromising the effectiveness of the NSA programs, and endangering the American people.
2.7.2006 8:23pm
Jack John (mail):

If my uncle in the NSA calls me tomorrow and tells me that I am being wiretapped, then I have standing to sue and seek an injunction against what I allege to be illegal wiretapping. Agree?



Under what law?
2.7.2006 8:24pm
Bruce Hayden (mail) (www):
Observer,

But that is the thing. At present, FISA would seem to prohibit tapping a phone call to/from an illegal immigrant to/from his handlers in the tribal areas of Afganistan or Pakistan if it were intercepted here (as it almost has to be) without a FISA warrant. Targetting is irrelevant. Legal status is irrelevant. As long as one party is in the U.S. and the interception is in the U.S. FISA would require a warrant.

It is a stawman because it is not possible to tap those calls elsewhere. Suggesting otherwise ignores present technology. The Administration has no choice - if it wants to listen to international calls coming into this country from known targets, it has to be done here in the U.S.
2.7.2006 8:32pm
Just an Observer:
Bruce Hayden,

I think I understand where you are coming from as far as the factual underpinning of FISA.

I do disagree about the remedies. Amending FISA in the way you and I have just been discussing would require just a few words changed in the definitions section, and no Al Qaeda observers would know any more than they have learned by reading the conversation we just had.

My other point was that I don't think making this technical change would render the NSA program completely lawful under the amended statute. From what has been disclosed, it seems like U.S. persons were targeted. So tapping their communications would still requiire a FISA warrant.
2.7.2006 8:33pm
Bruce Hayden (mail) (www):
And how are you going to prove that you were being surveiled, based on a tip from your uncle at the NSA? Are you going to drag him into court? I am sure that the Government would point out that that is classified information, and, then, promptly arrest him.

As I see it, really the only people who probably do have standing are those terrorists who have been arrested because of the NSA program. But if they can't be tried in civil court because of this, there are always those dreaded military courts.
2.7.2006 8:36pm
Tom Holsinger (mail):
Just an Observer,

FISA does not "apply" to "foreign" communications intercepted outside the U.S. even if the U.S. end of those is to a previously identified "person of interest" who is an American citizen who has never, ever, been outside the U.S. and is talking to his American-born mother on vacation at the Paris Disney World about her sore feet and how rude the French are.

FISA would "apply" if he is in San Diego and she is at the Disney World in Florida, even if the communication is intercepted on a satellite in orbit. Furthermore FISA would require a warrant for the surveillance.

FISA would "apply", but its warrant requirement might not, under umpteen possible scenarios dependent on fact situations.

FISA would "apply", but be unconstitutional as applied, if it required a warrant for a phone call between two known members of Al Qaeda, one in Brooklyn and one in Florida, whether or not they are American citizens, regardless of where the interception takes place. There the President's inherent constitutional authority, which cannot be abridged by statute, agreement or custom, trumps a mere statute. IMO such surveillance has been almost continuous since September 2001, and the right of Presidents to do it has been defended by every Attorney General since and including Griffin Bell in the Carter administration when FISA was enacted.
2.7.2006 8:37pm
Kovarsky (mail):
Steve,

I promise you I'm not trying to play word games about standing.

Where there is a criminal statute, the government does the "suing" (called prosecution). So generally, you do not have standing to "sue" under a criminal statute (as opposed to a civil one). You can litigate the constitutionality of that provision only if you are the one prosecuted by the government.

There is an exception - one I tried to describe before - in instances where you can prove that you are sufficiently likely to be the target of an unconstitutional law. In those instances you can sue for what is called a "declaratory judgment." For reasons that are WAY too complicated here, I'm skeptical that you could even get a declaratory judgment in that scenario.

It is complicated and sounds legalistic - because it is - the standing doctrines are controversial. But the central question here would be how much legally admissible evidence could you produce to establish that you were being tapped.

On the other hand, Congress could add a civil remedy to the criminal one in FISA (so now you can go to court not just as a defendant, but also as a plaintiff, and in circumstances beyond the declaratory judgment context). But that scenario has problems for the reasons I outlined in the previous post.

I'm sorry that sounds so complicated, but that's why Jack John keeps snidely asking you "under what law?" (even though he knows full well that you don't know what his implication is). He is, however, technically correct because as it stands normal citizens cannot sue under a criminal statute except under the very narrow declaratory judgment rules.
2.7.2006 8:39pm
Bruce Hayden (mail) (www):
At present we really don't know if U.S. Persons in the U.S. are being targeted without FISA warrants. Yes, some are probably being targeted, and more probably have in the past. But the Administration has procured an awful lot of FISA warrants since 9/11, and I suspect that most, if not all, targeted U.S. Persons in the U.S. have been surveiled under FISA warrants.

Obviously we shall see how this works out.
2.7.2006 8:40pm
Kovarsky (mail):
Bruce,

Again, I ask, can someone seemingly as well versed in the operational elements of signals intelligence as you appear to be, please explain to me what prevented the administration from tapping the two san fran terrorists with other tools before the attacks.
2.7.2006 8:44pm
Tom Holsinger (mail):
JAO,

And, for the record, I favor a pure oversight function for a revised FISA court - that its only function be to require that the executive branch disclose to it all warantless electronic surveillance of persons lawfully resident in the U.S. Such oversight would include an enforcement mechanism. This revised FISA court would have no authority to require, or authorize, anything but disclosure to it.

The purpose of such oversight would be to create a secret permanent record of warrantless surveillance for Congress to periodically review for abuses.
2.7.2006 8:46pm
Justin (mail):
Kovarski, as a legal response, you're not correct - what is impeachable is whatever 50.1% of the house says is impeachable.

As a precedential matter, you are also not correct. See Andrew Johnson.
2.7.2006 8:50pm
Just an Observer:
Tom Holsinger,

If I understand what you are saying, you are mistaken.

Assuming a wire or radio communications intercept is acquired outside the United States, the surveillance still is covered by FISA and a warrant is required if a U.S. person talkinig on their phone here is the target. See 50 USC 1801 (f)(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
2.7.2006 8:54pm
Bruce Hayden (mail) (www):
Observer,

Not precisely. A warrant is required under FISA for intercepts outside the U.S. if a particular, known, U.S. Person in the U.S. is targeted.
2.7.2006 9:01pm
Kovarsky (mail):
Justin,

I'm not sure how I could be incorrect about the impeachment and removal standards when I quite plainly posed a question and said although I had heard certain things, I wasn't sure.

That's a fascinating point about the math of majorities.
2.7.2006 9:01pm
Just an Observer:
Kovarsky,

Even if I can prove the NSA wiretapped me, isn't my next biggest hurdle to establish standing proving that I was actually injured in a way that was actual, imminent, distinct, and palpable, not abstract?
2.7.2006 9:02pm
Steve:
I don't understand at all why, if the state is doing something to me in violation of the law, I don't have the right to seek an injunction. We're not talking about a claim for damages.

Since when can the government not be enjoined from engaging in illegal conduct?

As for the prattle about whether my uncle would be arrested for tipping me off, etc., that has nothing to do with standing. If I have a good-faith basis to allege that I am being wiretapped in violation of the law, I have alleged standing, period.
2.7.2006 9:03pm
Just an Observer:
Bruce Hayden: Not precisely. A warrant is required under FISA for intercepts outside the U.S. if a particular, known, U.S. Person in the U.S. is targeted.

Suppose my phone number was harvested from the traffic of a suspected Al Qaeda operative. When I make subsequent calls to other, unknown phone numbers abroad, I and my phone are then the target. So a warrant would be required, right?

In the simpler case, if the Al Qaeda operative abroad is the target and he happens to be calling me, then I don't think a warrant is required to intercept that call.
2.7.2006 9:09pm
Bruce Hayden (mail) (www):
The problem with the uncle scenerio, as I see it, is that you have a serious proof problem. Yes, you might get through the initial pleadings based on information and belief. But at some point, you are going to have to prove that you indeed do have standing, and that is where you are going to have problems.

I will admit that my addition of getting your uncle arrested, while probably accurate, is irrelevant.
2.7.2006 9:11pm
Kovarsky (mail):
JoA,

I'm not clear whether you're asking me whether you would have standing to sue for a declaratory judgment or whether you are talking about standing to sue under a Congressionally-amended regime that includes a civil penalty.

The issue you point out, however, is the one to which I was alluding when I said


In those instances you can sue for what is called a "declaratory judgment." For reasons that are WAY too complicated here, I'm skeptical that you could even get a declaratory judgment in that scenario.


Generally, of course you know, the answer to your question is yes. That's why I'm skeptical that the constitutionality of this program is ever going to get adjudicated, no matter what Congress does. It seems pretty evident to me that the administration is not going to let FISC adjudge its constitutionality, per Specter's proposal.

Steve,
You are correct that the government can be enjoined for engaging in illegal conduct, but the person seeking the injunction still has to meet the injury and causation requirements of standing. It sounds odd, but them's the rules.
2.7.2006 9:11pm
Kovarsky (mail):
Bruce,

I'm not sure it's accurate either. I think there are some scenarios under which whistleblower statutes might protect him. I'm not really fluent in the whistleblower statute, though.
2.7.2006 9:14pm
Bruce Hayden (mail) (www):
Yes, I think that you probably would need a FISA warrant if the FBI or the NSA were targeting you and you were in the U.S. legally. But I also suspect that these are precisely the situations where the Administration is getting warrants.
2.7.2006 9:16pm
Bruce Hayden (mail) (www):
I think we went through the whistleblower stuff awhile ago, maybe over at Althouse. In any case, the NSA does have a procedure for whistle blowing, and it includes I believe (from memory) going first to the agency IG, and if that doesn't work, to the Senate (or Joint?) Intelligence Committee. Definately, not to your nephew.
2.7.2006 9:21pm
Just an Observer:
Kovarsky: It seems pretty evident to me that the administration is not going to let FISC adjudge its constitutionality, per Specter's proposal.

It seems pretty evident to me, too, because the administration obviously does not want the legal merits of its program to be decided in any court.

What I still don't understand is what Specter's proposal is.

How would a case be initiated, even with the cooperatioin of the government? AFAIK, the FISC court is not empowered to do anything except rule up or down on applications for warrants. In what kind of case would a FISC court decide the legality of warrantless surveillance, and how would such a case be reviewable?
2.7.2006 9:22pm
Just an Observer:
Bruce Hayden: But I also suspect that these are precisely the situations where the Administration is getting warrants.

I have no such confidence. All we have been told is that warrants are sought when both ends of the communication are domestic.
2.7.2006 9:26pm
Kovarsky (mail):
Bruce,

Ha! Thanks. Makes sense.

JaO,

I don't think FISC has any authority to rule on it, I think it's a political maneuver (not on Specter's part - I mean to say that although the FISC court doesn't have any authority, its un-binding approval would go a long ways towards settling Congress down).

Specter's the key here, and he holds a lot of cards, so I although I don't understand what legal authority FISC has either, I think the administration ought not to get in a face off with him, lest we start seeing Ashcroft, Comey, Goldsmith, and the Telecom companies in front of the Senate Judiciary Committee on C-Span.
2.7.2006 9:29pm
Steve:
You are correct that the government can be enjoined for engaging in illegal conduct, but the person seeking the injunction still has to meet the injury and causation requirements of standing. It sounds odd, but them's the rules.

No, I understand, and I agree that it's an element of the claim. However, it doesn't seem like you should need to prove actual damages to obtain an injunction, any more than you need to be damaged before you can enjoin a trespass.

As for the issues of proof involving my uncle scenario, I'd think that once I get past the pleading stage, the government is in a rather uncomfortable position of having to either admit or deny. If they want to falsely deny, someone may end up having to go to jail to prove my case, but they're going to face consequences at the end of the day.

Anyway, I continue to see the problem of finding a plaintiff with standing to be far more of a practical issue than a legal one.
2.7.2006 9:29pm
Just an Observer:
Kovarsky,

As to the details of Specter's proposal, he is actually a pretty smart lawyer and I have to believe he has some mechanism in mind. I am in no position to walk up to the chairman and ask him to explain, but I am surprised no reporter covering this has not done so. Specter obviously is dying to talk about it.

I am less sanguine than you are about the chairman's leverage to make anything happen. There are some tantalizing prospects for the next stage of the hearing. But I think Specter would have a tricky time getting such witnesses to talk.
2.7.2006 9:44pm
Kovarsky (mail):
JaO

Did you see the Meet the Press interview Sunday? He was much more explicit about what he wanted done than he was in the hearings, although I forget the details now.

Incidentally, I've heard rumors that one of the FISC judges resigned over the NSA policy. Any truth to that?
2.7.2006 9:53pm
Tom Holsinger (mail):
JAO,

There is no expectation of privacy in international communications because the foreign governments on the foreign end can listen to them.
"... under circumstances in which a person has a reasonable expectation of privacy ..."

Furthermore foreign governments can and often have delegated their sovereign right to do that to the United States government - the NSA employees involved act as agents of the foreign governments.

Bruce,

You do not seem aware that the private communications companies can and often do, at our request, transmit copies of their traffic to places where the NSA can lawfully intercept them.

A former NSA employee/Air Force enlisted man participated in earlier threads on FISA and told us about this. He had resigned in protest over what he regarded as unethical and possibly illegal NSA practices. I was aware that foreign governments had deputized NSA personnel as their agents for intercept purposes, but not that communications companies would transmit copies of signals to where the NSA could intercept them lawfully.
2.7.2006 9:54pm
Tom Holsinger (mail):
JAO,

The FISA Court does not decide the legality of warrantless surveillance. It decides whether to issue warrants. Only if an arrest is made might the legality of a given warrantless surveillance be justiceable.
2.7.2006 9:59pm
Kovarsky (mail):
Tom,

But I believe Congress could vest it with jurisdiction to adjudicate the constitutionality of classified surveillance programs, although I haven't thought through the way the advisory opinion rules would play out here.
2.7.2006 10:12pm
Just an Observer:
Tom Holsinger: There is no expectation of privacy in international communications because the foreign governments on the foreign end can listen to them.

This canard was floated here a month ago. No one, including yourself, was able to produce any citation or other authority to back it up. Can you do so now?
2.7.2006 10:18pm
Tom Holsinger (mail):
JAO,

I was there. I paid attention to the public debate over FISA in 1978. My father was the chief staffer for a Congressman who personally worked on FISA. This is how Congress protected the existing NSA surveillance of foreign communications. It was in the newspapers at the time.

And that former NSA staffer came here and confirmed everything I said on this point. He actually used the authority I describe.

You are free to dispute this. You are free to claim that you are Queen of the May. Do not expect, however, that such will be without consequences for your credibility.
2.7.2006 10:23pm
Tom Holsinger (mail):
Kovarsky,

Your proposal runs into the adversarial nature of our litigation system. Who would present a position adverse to the government? Forcing judges to decide constitutional questions by considering arguments not presented to them would compromise their impartiality.
2.7.2006 10:33pm
Tom Holsinger (mail):
Kovarsky,

We don't know why FISA Judge Robertson resigned. Lefties and Democrats spread a rumor that he disagreed with the NSA policy concerning warrantless surveillance. Others said that he resigned due to an investigation that he had leaked classified information, obtained in his capacity as a FISA judge, to either or both James Risen and Senator Jay Rockefeller.
2.7.2006 10:42pm
Kovarsky (mail):
Tom, I'm not proposing anything. I was taking a guess as to how Specter might have a plan for getting the constitutionality of the program in front of FISC. I wasn't saying I was advocating that plan.

I'm open to arguments as to why that type of special submission might be ok, but my initial reaction is to agree with you - that it would be outside their jurisdiction as an Article III court subject to the case and controversy requirement. That being said, it's difficult to say how deeply the rationale behind the adversary system would be implicated without knowing what Specter's plan would be.
2.7.2006 10:42pm
Just an Observer:
Kovarsky: Did you see the Meet the Press interview Sunday? He was much more explicit about what he wanted done than he was in the hearings, although I forget the details now.

I saw the interview and read the transcript. Specter did not provide any details. He did tout his idea as "big, big, big." (Transnlation: "Hint: This is the lead, all you second-stringers who got the assignment to write the Sunday talk-show story.") The press failed to follow up then, as well as yesterday when Specter opened and closed the hearings with a plug for his proposal.

Kovarsky: Incidentally, I've heard rumors that one of the FISC judges resigned over the NSA policy. Any truth to that?

Judge James Robertson resigned in December. I couldn't find the original Washington Post story, but here is a followup.

Tom Holsinger: We don't know why FISA Judge Robertson resigned. Lefties and Democrats spread a rumor that he disagreed with the NSA policy concerning warrantless surveillance. Others said that he resigned due to an investigation that he had leaked classified information, obtained in his capacity as a FISA judge, to either or both James Risen and Senator Jay Rockefeller.

Although Robertson did not speak on the record, the Post quoted associates as saying he resigned in protest. Your dismissal of such sources as "lefties and Democrats" is meaningless ad hominem drivel.

The sleazy web site you linked to provided no basis whatsoever for the scurrilous speculation that the judge might be under investigation, other than to speculate that it was conceivable. And you provided no basis for repeating the sleazy rumor. I find your tactics in doing so quite despicable.
2.7.2006 10:52pm
Bruce Hayden (mail) (www):
Tom,

Not that I am unaware of the fact that network traffic can be, and apparently is, siphoned off for evaluation elsewhere, but rather that it is irrelevant to my arguments. I have been concentrating on the switches, but the reality is, as far as I can tell technologically, that the siphoning off has to be at the switches too.

I have heard repeated stories that traffic is being siphoned from the major international switches to Ft. Meade on the East Coast, and another facility on the West Coast (Yakima?).

But that doesn't change the fact that it has to be mostly done in the United States for technological reasons.
2.7.2006 11:03pm
Evelyn Blaine:
Just because I'm feeling ornery and have been browsing around Westlaw ...

Would those who claim that Congress cannot regulate the "fundamental incidents" of war like to explain what to do about this ruling (other than just ignoring it):

1) "But hostilities may subsist between two nations more confined in its nature and extent; being limited as to places, persons, and things; and this is more properly termed imperfect war; because not solemn, and because those who are authorised to commit hostilities, act under special authority, and can go no farther than to the extent of their commission. Still, however, it is public war, because it is an external contention by force, between some of the members of the two nations, authorised by the legitimate powers. It is a war between the two nations, though all the members are not authorised to commit hostilities such as in a solemn war, where the government restrain the general power." Washington J. in Bas v. Tingy, 4 Dall. 37, 40-41.

2) "Congress is empowered to declare a general war, or congress may wage a limited war; limited in place, in objects, and in time. If a general war is declared, its extent and operations are only restricted and regulated by the jus belli, forming a part of the law of nations; but if a partial war is waged, its extent and operation depend on our municipal laws." Chase J., 4 Dall. 37, 43-44.

3) "My opinion shall be expressed in a few words. The United States and the French republic are in a qualified state of hostility. An imperfect war, or a war, as to certain objects, and to a certain extent, exists between the two nations; and this modified warfare is authorised by the constitutional authority of our country. It is a war quoad hoc. As far as congress tolerated and authorized the war on our part, so far may we proceed in hostile operations." Paterson J., 4 Dall. 37, 45.

That's three out of four of the reported opinions in Bas in favour of Congress's power to "modify" warfare any way it wants (Moore J.'s not mentioning the issue).

Of course, whether Congress has done so--or has rather, by the AUMF, authorized "total" or near-total war in spite of FISA--in this case is debatable.
2.7.2006 11:10pm
Just an Observer:
Tom Holsinger,

I am not disputing the proposition that traffic has been intercepted at allied facilities abroad, or that interception by foreign governments may occur. That seems to be an open secret.

I and others here doubt your assertion of the principle that, as a matter of law, U.S. citizens here have no expectation of privacy whenever they place international calls. Your relationship to your father does not constitute an authority to prove that legal assertion.
2.7.2006 11:17pm
Medis:
There is in fact a civil liability provision in FISA. 50 USC 1810 creates a private right of action for unauthorized electronic surveillance within the meaning of FISA. It also provides for liquidated damages. Additionally, if some electronic surveillance violated the 4th Amendment, a private party might have a Bivens claim.
2.7.2006 11:29pm
Tom Holsinger (mail):
Medis,

You still haven't read James Bamford's books. Anything contrary to your faith must be avoided.
2.7.2006 11:37pm
Anderson (mail) (www):
No fair actually reading the statutes, Medis!
2.7.2006 11:38pm
Kovarsky (mail):
I stand corrected on the absence of a civil remedy.

It still seems to me that Congress would still need to expressly override the prudential standing requirements if it wanted to maximise the likelihood that someone could bring a suit, no?
2.7.2006 11:40pm
Tom Holsinger (mail):
Evelyn,

President John Adams' Attorney General was John Marshall.
2.7.2006 11:40pm
Kovarsky (mail):
Anderson,

I hope that was not a swipe at me - I took at someone else's word that there wasn't a civil penalty. I was certainly not engaged in any attempt at deception or self-delusion.

I inferred from people screaming "under what statute" they were referring to the absence of a civil remedy.
2.7.2006 11:45pm
Jack John (mail):

50 USC 1810 creates a private right of action for unauthorized electronic surveillance within the meaning of FISA. It also provides for liquidated damages. Additionally, if some electronic surveillance violated the 4th Amendment, a private party might have a Bivens claim.



There is no proof of any unauthorized surveillance under FISA. All surveillance we are talking about has been authorized or falls outside of FISA. No one here has been making the argument that the 4th Amendment is violated -- certainly the public debate seems to accept that the 4th Amendment is not being violated. The General who runs the program noted it is only used for hot pursuit or evanescent evidence, which is a 4th Amendment exception.

In any event, in the best case scenario, assuming FISA does not apply, you have a Bivens claim. That is an implied right to sue. Given that you have been arguing that no one can ever make any arguments from implication, doesn't that make you a hypocrite, Medis?
2.8.2006 12:03am
Jack John (mail):
Oh, and what is the source of authority for 50 USC 1810? (None. Look in CFR.) And, can Bush be sued under 50 USC 1810 while he is still in office? (No.) And, if you are a foreign power or an agent of a foreign power, can you sue in 1810? (No.) And, after AUMF, if the President determines that you are an affiliate of al-Qaeda, can you sue under 1810? (No.)

So who can sue, exactly, if the only people being "targeted" are people who cannot sue?
2.8.2006 12:12am
Medis:
Kovarsky,

As an aside, I don't blame you, but in the future you might want to consider who is doing the screaming. In any event, I don't think Anderson was making a joke at anyone's expense in particular.

Anyway, I certainly think there are things Congress could do to make establishing standing a lot easier. For example, I think Congress could give a statutory right of action to organizations who claimed the expressive activities of their members were chilled by an unlawful surveillance program. Alternatively, Congress could set up some sort of qui tam (AKA "private attorney general") mechanism, which effectively relaxes the prudential rule against asserting the rights of third parties. And so on.

But the real problem on any theory will be getting the necessary evidence. The government could try asserting the state secrets privilege, and that might wipe out a case (as happened with the pre-FISA cases). Still, the state secrets privilege sometimes doesn't work (rarely, but still). And the bottomline is that this privilege is court-made, and it would be up to the individual district courts to make the necessary determinations. So, if enough cases could be brought, a few might make it through.
2.8.2006 12:15am
Jack John (mail):

I inferred from people screaming "under what statute" they were referring to the absence of a civil remedy.



There is no statute under which anyone targeted by this prgram could sue. 50 USC 1810 would not be available, for obvious reasons.
2.8.2006 12:16am
minnie:
First, I just LOVE Marty Lederman. Republicans like me are really glad to have people like Marty Lederman making the case with which we concur, because there are no Republicans who seem to be doing that. Thank you, Marty.

Evelyn Blaine, you do the best research. I always look for your posts.

Kovarsky, thank you for explaining that about Hamdi.

I think it is a big stretch to go from "A War on Terrorism" to "We are at war." Does the government have the right to eavesdrop without warrants on that other battle front, the War on Drugs?

It's possible immediately after 9/11 some members of Congress might have thought that was the beginning of a War. It wasn't. Congress should just make clear now that we are not at war, and go back to our former system of government. Unfortunately, it comes back to that maxim "possession is nine tenths of the law", so since Republicans are in possession, Congress is powerless. Can you believe that Karl Rove called a New York politician, Bruno, to chew him out for speaking against the war? What are these people? Hydras? They seem to have


And while eavesdropping on terrorists might be "an incident of war", eavesdropping on everyone else to see if they are terrorists is certainly not an "incident of war", and that's what is going on, or the government would just get warrants and be done with it.

Also, those posters who frequently use the term "Al Queda" and then make their argument fail to include that it's not just Al Queda, but any member of any group thought to be in support of Al Queda (and throw in a few vegans), and on and on. Eventually you get right back to Kevin Bacon.
2.8.2006 12:18am
Jack John (mail):
From the syllabus of Tenet v. Doe:

Held: Respondents’ suit is barred by the Totten rule. In Totten, this Court concluded with no difficulty that the President had the authority to bind the United States to contracts with secret agents, observed that the very essence of such a contract was that it was secret and had to remain so, and found that allowing a former spy to bring suit to enforce such a contract would be entirely incompatible with the contract’s nature. The Ninth Circuit was quite wrong in holding that Totten does not require dismissal of respondents’ claims. It reasoned that Totten developed merely a contract rule, prohibiting breach-of-contract claims seeking to enforce an espionage agreement’s terms but not barring due process or estoppel claims. However, Totten was not so limited. It precludes judicial review in cases such as respondents’ where success depends on the existence of their secret espionage relationship with the Government. Id., at 107. The Ninth Circuit also claimed that Totten had been recast simply as an early expression of the evidentiary “state secrets” privilege, rather than a categorical bar to respondents’ claims, relying mainly on United States v. Reynolds, 345 U.S. 1, in which widows of civilians killed in a military plane crash sought privileged military information in their wrongful death action against the Government. While the Reynolds Court looked to Totten in invoking the “well established” state secrets privilege, it in no way signaled a retreat from Totten’s broader holding that lawsuits premised on alleged espionage agreements are altogether forbidden. The Court later credited Totten’s more sweeping holding in Weinberger v. Catholic Action of Haw./Peace Ed. Project, 454 U.S. 139, 146—147, thus confirming its continued validity. Reynolds therefore cannot plausibly be read to have replaced Totten’s categorical bar in the distinct class of cases that depend upon clandestine spy relationships. Nor does Webster v. Doe, 486 U.S. 592, which addressed constitutional claims made by acknowledged (though covert) CIA employees, support respondents’ claim. Only in the case of an alleged former spy is Totten’s core concern implicated: preventing the existence of the plaintiff’s relationship with the Government from being revealed. The state secrets privilege and the use of in camera judicial proceedings simply cannot provide the absolute protection the Court found necessary in enunciating the Totten rule. The possibility that a suit may proceed and an espionage relationship may be revealed is unacceptable. Forcing the Government to litigate these claims would also make it vulnerable to “graymail,” i.e., individual lawsuits brought to induce the CIA to settle a case out of fear that litigation would reveal classified information that might undermine covert operations. And requiring the Government to invoke the privilege on a case-by-case basis risks the perception that it is either confirming or denying relationships with individual plaintiffs. Pp. 5—10.
2.8.2006 12:19am
Jack John (mail):
Indeed, our opinion in Reynolds refutes this very suggestion: Citing Totten as a case “where the very subject matter of the action, a contract to perform espionage, was a matter of state secret,” we declared that such a case was to be “dismissed on the pleadings without ever reaching the question of evidence, since it was so obvious that the action should never prevail over the privilege.” 345 U.S., at 11, n. 26 (emphasis added).
2.8.2006 12:21am
Medis:
Tom,

In a 1999 Washington Post article, "Loud and Clear", Bamford stated that to the best of his knowledge, the NSA was staying within the bounds of FISA. However, he predicted that might change--and it looks like he was right.

And with all due respect, we have gone through all this many times. What Bamford describes does not actually support your legal argument. Your legal argument depends on the ipse dixit that if a foreign government could lawfully surveil a communication without a warrant, so can the United States. But the relevant cases simply state that if a foreign government lawfully obtains the contents of a certain communication, it can pass that information to the government. They also state that the US government can provide aid to a foreign government which is doing so. But they don't state that the US government can conduct surveillance according to foreign laws on its own (without the participation of that foreign goverment).

And although you keep insisting these are the same principles, they aren't, and you have nothing to support your claim that they are.
2.8.2006 12:24am
Jack John (mail):
Sorry, I meant "And, if you are a foreign power or an agent of a foreign power, can you sue under 1810? (No.)"
2.8.2006 12:29am
Justice Fuller:
Bruce Hayden,

You seem convinced that the Supreme Court would find this program legal. Who are the five justices you think would say it is legal?
2.8.2006 12:41am
Tom Holsinger (mail):
Jack John,

I most definitely contend that some NSA warrantless domestic surveillance is prohibited by FISA - that is why the FISA bench was so upset at the NSA not seeking warrants. While I agree with the Bush administration that the interpretation of FISA which does this makes FISA unconstitutional as applied, I don't think there is any plausible way to interpret those clauses of FISA so as to make them constitutional. IMO FISA is subject to a facial challenge unless it has some sort of saving clause (mind blank on the term) saving the parts not subject to constitutional challenge.

FISA's underlying assumption is that we will only be subject to espionage at home. It breaks down when America is a battlefield. Its probable cause requirement cannot be squared with the speed requirements of counter-terrorism or combat operations.

Technological changes make FISA even more irrelevant. "He's dead, Jim."

Medis,

JJ has pointed out many times that the absence of case authority here means the government wins. You also overlook the body of law on loss of evidentiary privileges due to lack of confidentiality. If there is no expectation of confidentiality in an otherwise privileged communication, there is no privilege. The same principles control expectation of privacy.

There is no reasonable expectation of confidentiality or privacy in a note to one's attorney scribbled on the outside of an envelope carried in the mail. The note must be on the inside of the envelope, not the outside.

Telling your doctor in the examining room that you have a social disease is private and confidential. Yelling it to him through the receptionist's window in a crowded waiting rooom is not private or confidential.

Likewise there is no expectation of privacy in electronic communications which a reasonable person would know can be read by a foreign government. For that matter, there is no expectation of privacy if you have reasonable grounds to believe the person you are making the communication too always shows it to his friends, or his local police, or his local secret police.
2.8.2006 2:50am
Ditty:

Kovarsky
Ditty,

There is no debate that if the switch is is overseas then FISA does not apply.

If that were the only way communications were being intercepted, the administration would not have conceded that FISA applied and that there were domestic taps. The debate is over the frequency of the domestic taps, not whether they exist.


I have seen nothing in the papers or on the news about purely domestic surveillance.

Purely domestic surveillance is the responsibility of the FBI, not the NSA.
2.8.2006 7:36am
Ditty:
Bruce Hayden, I think you might not be looking at the evidence I layed out for you too closely. Did you not notice that the link to ECHELON listed Misawa, Japan as a station? Here is a summarized listing of the countries just for your edification:

United States
Australia
United Kingdom
Japan
New Zealand
Canada
Cyprus
Germany
Diego Garcia
Guam
Turkey (especially well placed for ME comms going West)
Malta
South Korea
Spain
South Africa

Further, you are almost stating that because we can't get EVERYTHING, that it isn't worth getting what we can, which of course is patently false. Now, the NSA may have a lot of resources at it's disposal, but it is by no means all-powerful.

I would also point out that since you are intercepting at the switch, really all you need is some software. You don't need a physical presence at that switch. How many companies make the kind of hardware and software needed to run those switches?

As for your understanding of the term "United States Person", I suggest you go back and read FISA again. My working knowledge of FISA is that a "United States Person" had to be one of these four things:
1. A US Citizen
2. A legal permanent resident of the US.
3. A US corporation
4. An organization that is predominently composed of "United States Persons"

Not only does that exclude illegal aliens, it excludes everyone in this country who is here on a tourist visa, a student visa, a work visa (their work comms are protected if they work for a "United States Person", but their personal comms aren't), or just visiting from Mexico or Canada.
2.8.2006 8:10am
Ditty:
Part of the issue here I think is that we have people well versed in law-speak trying to interpret spook-speak. It doesn't work very well, obviously (insert inane smiley here).
2.8.2006 8:16am
Ditty:
minnie

And while eavesdropping on terrorists might be "an incident of war", eavesdropping on everyone else to see if they are terrorists is certainly not an "incident of war", and that's what is going on, or the government would just get warrants and be done with it.


From AG Gonzales' testimony:

First, only international communications are authorized for interception under this program. That is communications between a foreign country and this country.

Second, the program is triggered only when a career professional at the NSA has reasonable grounds to believe that one of the parties to a communication is a member or agent of Al Qaida or an affiliated terrorist organization.


minnie, please reconcile your statement with the AG's.
2.8.2006 8:26am
jrose:
Ditty (quoting the AG),
First, only international communications are authorized for interception under this program. That is communications between a foreign country and this country.

Second, the program is triggered only when a career professional at the NSA has reasonable grounds to believe that one of the parties to a communication is a member or agent of Al Qaida or an affiliated terrorist organization.
If that is the scope of the surveillance, why didn't the Administration get a warrant from the FISA court?
2.8.2006 8:38am
Ditty:
jrose

If that is the scope of the surveillance, why didn't the Administration get a warrant from the FISA court?


Because it isn't necessary except under fairly narrow circumstances. It has been stated by the AG that FISA was used where appropriate.

Now, I haven't advocated for this particular program, nor have I advocated against it. I have however tried to show how it could be done legally without violating FISA, using information that is already public knowledge.

What I have laid out are intelligently informed guesses, based upon my prior experience in the field, and nothing more. I don't see a violation of FISA, based on what I know and what has been said.
2.8.2006 9:50am
Anderson (mail) (www):
I don't think Anderson was making a joke at anyone's expense in particular.

For once, correct. Kovarsky, I just found it amusing that we were all speculating &Medis looked it up. No swipe intended.
2.8.2006 9:55am
Medis:
Ditty,

The Administration has repeatedly stated that this program includes electronic surveillance within the meaning of FISA. I think you can stop speculating.

Tom,

No, the absence of prior caselaw does not mean the government wins in a 4th Amendment case. The history of 4th Amendment cases of first impression contains many contrary examples. Frankly, that is just a silly thing to assert.

Anyway, again, you have no support for your ipse dixit that "there is no expectation of privacy in electronic communications which a reasonable person would know can be read by a foreign government."

And I think your analysis helps to clarify the mistake in your reasoning. In the United States, it is also possible that the government is surveilling any particular communication (of course, they have to follow certain procedures first, but perhaps they have done so). Does that mere possibility defeat the expectation of privacy? No, of course not, because the mere possibility that the government is listening does not mean that they actually are doing so. Indeed, that would be obvious bootstrapping by the government (to use the mere possibility that they are listening to defeat the reasonable expectation of privacy which would then allow them to listen).

You are proposing the exact same bootstrapping fallacy. Sure, it is possible that a foreign government is surveilling my international communications (again, they will have their own legal procedures, but perhaps they have followed them). But the mere possibility they are doing so doesn't mean that they are actually doing so, and therefore does not defeat the reasonable expectation of privacy.

Indeed, what you are actually doing is basically arguing that the US government can adopt the legal procedures of foreign governments for its own use. There is, of course, no such principle: foreign governments are bound by their laws, but the US government is bound by our laws, and once you understand that basic principle of sovereignty you should understand why the US government can't just do whatever a foreign government could do.

With all due respect, this flaw in your reasoning has been pointed out to you many times. Obviously, you disagree that this is a flaw, but the only way for you to prove the law is on your side is to cite a case on point. And again, there is no rule that says in a 4th Amendment case of first impression, the government always wins.

So, I expect you will continue to claim this is what the law says, and we continue to disagree and ask for a citation, and you will continue to say you don't need one because you know you are right despite the absence of supporting caselaw, and we will continue to disagree. So, can we at least agree that is all that is ever going to happen in our discussions of this issue? Or do you really want to keep going through this cycle over and over?
2.8.2006 10:30am
srg (mail):
Medis,

Maybe I've missed it, but I haven't seen you answer Ditty's claim that the interceptions are, because of new technology, being done overseas and therefore do not violate FISA.
2.8.2006 10:40am
jrose:
Ditty,

I think you have argued (based on intelligently formed guesses) that FISA doesn't apply because this specific surveillance does not fall under the definitions provided in section 1801.

The problem I have with that argument is the AG doesn't make it. He instead argues that the surveillance is legal because the AUMF is an authorizing statute as specified in section 1809 of FISA. Taking the AG at face value, I conclude the surveillance is within the scope of 1801's definitions. Given that conclusion, I will slightly rephrase my question:

If that (communications between a foreign country and this country where a career professional at the NSA has reasonable grounds to believe that one of the parties to a communication is a member or agent of Al Qaeda or an affiliated terrorist organization) is the scope of the surveillance why didn't the Administration get a warrant from the FISA court instead of arguing that the AUMF exempts them from the warrant requirement?
2.8.2006 10:41am
Medis:
srg,

We actually had these same conversations quite a while ago (this is part of an odd pattern--a number of people who were around for early discussions of these issues are reappearing and making the same arguments as if we had never discussed them before).

Anyway, to summarize, I don't know the operational details of this program. Of course, neither does Ditty. Ditty's argument starts with the assumption that the program only involves things that the government has always been doing. He then argues that because the government always got FISA orders when necessary before, and not otherwise, then there must be no need for FISA orders in this program.

The obvious problem with Ditty's argument is that it is directly contradicted by how the Administration has described the program. In other words, they stipulate that it includes electronic surveillance within the meaning of FISA, but they are not always getting FISA orders.

So, what that must mean is that Ditty's assumptions are wrong. There are two (not mutually exclusive) possibilities: either the Administration is not just doing what it has always done, and/or the Administration is no longer getting FISA orders when it once used to.

In response to these arguments, Ditty has always just maintained that his assumptions must be true. I'm not sure what more we can say to Ditty at that point--he is basically assuming away the precise issue at hand, and doing so despite what the Administration itself has stipulated.
2.8.2006 11:04am
Tom Holsinger (mail):
Medis,

I don't have to prove anything here. You and others are the ones contending that surveillance of foreign communications is covered by FISA. You prove it.

I note for the record - this is my final word:

Those contending this:

a) Won't read the books of James Bamford confirming my point;

b) Refuse to believe a former NSA staffer that he was taught in training, and used in practice, the principle that foreign surveillance is not covered by FISA;

c) Refuse to read FISA's legislative history;

d) Refuse to read the Congressional Record on the subject;

e) Refuse to delve into the 1978 archives of the New York Times and Washington Post for articles written about FISA while it was being enacted;

f) Will not accept a plausible interpretation of the statute despite having no evidence whatever that this interpretation is incorrect.

It is clear that we are dealing with graduates of the Roseanne Roseannadana School of Law - the one where the rhetoric class teaches them to stick their fingers in their ears while screaming:

"LA LA LA LA LA! I CAN'T HEAR YOU!"

They equate faith with reason.
2.8.2006 11:08am
srg (mail):
Medis,

Don't you think it is possible that the AG is intentionally mis-describing the technical aspects of they are doing in the belief that describing it accurately would compromise national security?
2.8.2006 11:14am
jrose:
Holsinger,
I don't have to prove anything here. You and others are the ones contending that surveillance of foreign communications is covered by FISA. You prove it.
Why hasn't the Administration argued that the surveillance isn't covered by FISA?
2.8.2006 11:17am
jrose:
srg,
Don't you think it is possible that the AG is intentionally mis-describing the technical aspects of they are doing in the belief that describing it accurately would compromise national security?
Why can't the AG make the claim that the surveillance is not covered by FISA, argue revealing the details to prove it would compromise national security, and present the details to support the claim in closed sessions to the Intelligence committees? Moreover if I read Holsinger correctly, he argues that cross-boarder surveillance - broadly speaking - is not covered by FISA based on the existing public record. Why can't the AG make that argument?
2.8.2006 11:25am
srg (mail):
jrose,

My argument was purely hypothetical, so the hypothesis might be wrong. But if the hypothesis is right, then the answer to your question might be that the AG doesn't want to concede, even implicitly, that he must obey FISA or that Congress can limit what the President does. (I am not agreeing with this argument, just guessing what might be his motives.)
2.8.2006 11:31am
David Matthews (mail):
"why didn't the Administration get a warrant from the FISA court instead of arguing that the AUMF exempts them from the warrant requirement?"

I think you answer your own question, if you can accept that the Administration may actually believe their argument that the AUMF exempts them from the warrant requirement; i.e., if I don't believe I need a warrant, why on earth should I get one?

This also explains why the Administration "still refuses to request Congressional authorization," as so many others keep wondering, positing political posturing and many other devious reasons. Actually the explanation is simple. The Administration genuinely believes that it already has this power, under AUMF. They further believe that any new Congressional legislation will simply lead to future messes, since Congress can never hope to keep up with changes in technology, and that any Congressional action would be an intrusion into areas of Executive authority.

This is, first and foremost, a turf battle, having only secondarily to do with possible privacy violations, which also explains why many Republicans in the Senate are taking on the Administration. Party lines may run deep, but Senators have a very high opinion of their own power, place and authority. It may or may not be justified in this situation, but it should not be surprising, nor should it lead to any conclusions about the relative merits of either sides' arguments. ("Even some Republican Senators are concerned!" No kidding. That's because they're Senators. It doesn't make the Administration's position any more, or less, defensible.)
2.8.2006 11:34am
Ditty:
Medis

Ditty,

The Administration has repeatedly stated that this program includes electronic surveillance within the meaning of FISA. I think you can stop speculating.



I also heard AG Gonzales say that FISA warrants were used where appropriate in other programs. Is it inconceivable that this particular program is narrowly tailored to only target those for whom a FISA warrant isn't needed?

I'm leaving it at that.
2.8.2006 11:36am
Medis:
srg,

In answer to your specific question, the AG is not revealing any specific technical details, and would not be compelled to do so either way (by claiming either that they always are complying with FISA or that they are sometimes not).

But more broadly, I think you are asking if it is possible the Administration is not telling the truth about the nature of this program for some purpose-to-be-named. Sure, that is possible. But that is also purely speculative.

I think Tom does a good job of describing his attitude when he writes: "I don't have to prove anything here. You and others are the ones contending that surveillance of foreign communications is covered by FISA. You prove it."

But among the "others" is the Administration itself, and they are the only ones who know the operational details. So, I would suggest it is quite obvious the burden is on those who contend the Administration's description is wrong to prove otherwise, not on those of us who are willing to accept the Administration's stipulation in the absence of evidence to the contrary.

Again, we have gone through all this before. If someone is willing to assume that their personal assumptions are right and the Administration's description is wrong, and they think it is fair to ask the commentators here to prove that the Administration's description is right, I think there isn't much more to say. We simply don't have the information we would need to prove that the Administration is providing an accurate description, and if that is what it would take to shake their convictions, then we are in no position to do so.
2.8.2006 11:47am
Medis:
Ditty,

Of course it is "conceivable". But your "conception" of the program is directly contradicted by what the Administration has actually said. Still, I realize that if you won't be convinced by what the Administration has said, then there is nothing that I can add that would be likely to change your "conceptions".
2.8.2006 11:51am
Ditty:
jrose:

Ditty,

I think you have argued (based on intelligently formed guesses) that FISA doesn't apply because this specific surveillance does not fall under the definitions provided in section 1801.

The problem I have with that argument is the AG doesn't make it. He instead argues that the surveillance is legal because the AUMF is an authorizing statute as specified in section 1809 of FISA. Taking the AG at face value, I conclude the surveillance is within the scope of 1801's definitions. Given that conclusion, I will slightly rephrase my question:

If that (communications between a foreign country and this country where a career professional at the NSA has reasonable grounds to believe that one of the parties to a communication is a member or agent of Al Qaeda or an affiliated terrorist organization) is the scope of the surveillance why didn't the Administration get a warrant from the FISA court instead of arguing that the AUMF exempts them from the warrant requirement?


You don't seem to understand that the AG *CAN'T* make the same arguments I am making without disclosing operational details that will almost certainly reduce the effectiveness of the surveillance. You are thinking like a lawyer, which by the way isn't an insult, it's just that you aren't looking at this from an intelligence standpoint.

Now, it's one thing for me to speculate here. But to have it confirmed by the administration would allow the targets of the surveillance to devise methods and procedures to minimize their vulnerabilities to having their communications intercepted. As it stands now, they are likely trying to figure out ways to get around this now that the existence of the program has become public knowledge, but they will not know the exact parameters of the monitoring. That will hinder them somewhat, in that they will not know exactly what to do to remedy the situation.

A similar situation happened after the sinking of the Bismark in WWII. The British knew, thanks to their reading of German Naval Enigma signals, where the supply ships for the Bismark were, and decided to sink the majority of them to prevent them from being used to supply other surface raiders and U-Boats. The wanted to leave two of them unmolested, so that the Germans wouldn't get suspicious and think that the British were breaking Enigma.

As it turned out, British warships who hadn't been informed of the plan happened upon both of those ships that were to be left alone, and sank them. As the British feared, this caused the Germans to reevaluate the security of the Enigma. However, since the Germans didn't *KNOW* that the British actually broken the Enigma, they just changed some of the procedures without overhauling the whole system. This caused little problem for the British.

That is where we are now. The other side knows *SOMETHING* is happening, but doesn't know what exactly so they can't make informed choices about how to change their communications procedures to foil the monitoring.
The administration is using the AUMF argument to avoid giving them that information.
2.8.2006 12:00pm
Medis:
David M.,

I think it is useful to point out that four Republican Senators on the Judiciary Committee have expressed concerns for at least a couple reasons.

First, some people who comment here periodically suggest this is SOLELY about Democrats wanting to take down the President. Insofar as they see this issue in purely Democrat/Republican terms, it may be useful to point out to them that a significant number of Republicans are also expressing concerns. Obviously, that doesn't disprove their claims about the motivations of the Democrats, nor their broader claims about this being a primarily political issue, but it does rebut the notion that the only politics involved can be described in "Democrats v. Republicans" terms.

Second, I hope that at least some Republican partisans will take the time to consider the specific concerns of these Republican Senators, and effort they may not be willing to expend if it was "merely" Democrats expressing concerns. In fact, I disagree with you that the Republican Senators are only protecting their "turf", although I think that may be part of their motivation (and not improperly, since this is a separation of powers issue). Rather, if you look at some of the specific concerns of the Republican Senators, I think you will find some interesting arguments about issues like public confidence, the problems faced by those who must operate under the rules--and who are potentially subject to prosecution for breaking the law--and so on.

Of course, even after further review, one might still conclude that this is all posturing. But as I noted, my hope is that Republican partisans will at least take a longer look at these arguments before dismissing them.
2.8.2006 12:04pm
Ditty:
Medis:

Ditty,

Of course it is "conceivable". But your "conception" of the program is directly contradicted by what the Administration has actually said. Still, I realize that if you won't be convinced by what the Administration has said, then there is nothing that I can add that would be likely to change your "conceptions".


Please show me where what I have said is contradicted by the administration.
2.8.2006 12:04pm
Medis:
Ditty,

We did this all before. The Administration has stipulated that this program sometimes involves electronic surveillance for which FISA would require a court order, but that they have not always gotten such orders. This stipulation is in many places. By your own analysis, this cannot be right if you have correctly "conceived" the program.

I understand your reply. You think that if the Administration told the truth on this subject, they would have to reveal operational details. I think you already know my reply to your reply: either way, the Administration does not have to reveal operational details, and won't. And your reply to my reply to your reply is to ask: but isn't it conceivable they are not telling the truth anyway? And my reply to your reply to my reply to your reply is that it is conceivable, but that doesn't prove they are not telling the truth.

At which point you seem to forget how this all began, and ask me again to point out how the Administration has contradicted your claim. And the cycle begins again.

So, seeriously, do you really think continuing this cycle over and over again serves a purpose? We get your point: you think you know what is going on, and anything the Administration says to the contrary is just a smokescreen. But we don't think you are in a position to know what is going on, and we aren't willing to assume the Administration's description is wrong based on your speculation.

And I doubt either of us is going to budge.
2.8.2006 12:16pm
Bob from Ohio (mail):
The legal arguments are interesting of course. However, as has been pointed out from time to time, it is primarily a political issue. Congress can attempt a political remedy but it probably will not.

Impeachment and removal from office will not happen, period, no matter what happens in November. I suppose that a Dem majority in the House may attempt impeachment but at best they will have 225-230 seats. Slim advantage when at best 5-10 GOPers would go along and not all Dems would. Conviction in the Senate is hopeless of course, no way to get 2/3rd, no way at all that I see.

The alternative remedy is the one suggested by someone here (my apologies for not identifying whom, so many comments), a resolution that terminates the program as not authorized under AUMF. It might, might be possible to craft majorities of Dems and a few GOPers (filibuster proof?) but the President would veto, little chance of it being overridden. Since the President would paint this as being weak on terror, I see little chance of it even being passed. [It is notable that there have been few (any?) actual calls for the program's end in the Senate or House.]

There were continue to be hearings and such but the war is over. The program has colorable legality but that is enough to let the President win the political struggle.
2.8.2006 12:33pm
af -- other one:
The more I think about this case, the more I realize it is a perfect example of a legislatures avoiding accountability for politically tough decisions. It brings to mind nearly every circumstance where the legislature fails to address a difficult question -- thereby pushing it to the executive branch pursuant the Chevron -- in order to avoid the political heat of making a decision. An authorization for the use of force might be the quintessential example of this -- the legislature very broadly gives the President to fight a war using any necessary means, but does not wade further into the methods of fighting the war. Part of this is, of course, because the Legislature would be very inept at providing detailed guidance. But part is also because the legislature likes the system whereby the President takes the political heat for wartime decisions -- in Iraq, going in without sufficient body armor; not getting Turkey on board; dissolving the iraqi military. And in this case, aggressively surveiling the enemy in a manner that affects people living in the U.S. If Congress is going to authorize force to be used in such broad and limitless terms, it should anticipate this outcome. If it would like a different outcome, it should place limits in its authorization of the use of force and take the political heat for doing so. So long as force is going to be authorized in unlimited terms, the Congress has effectively transferred the political heat for decisionmaking like the decision made here to the President. Separation of powers types complaints therefore ring hollow to me -- Congress could have limited that force authorization; it could defund aspects of the war it is not happy with; it could repeal the use of force authorization entirely. But it should not be able to cite a prior law as occupying the field when it seems to me that the AUMF was intended to occupy the field when it comes to our actions with respect to al qaeda.
2.8.2006 12:39pm
Just an Observer:
Bob from Ohio,

Do not forget that often legislative provisions are attached to larger, "must-pass" pieces of legislation to render them more veto-proof.

A logical vehicle, based upon subject matter, to which a majority of senators might attach some amendment would be the renewal of the USA-PATRIOT Act. However, it may be that this legislation has gone too far in the legislative process to make such amendments feasible. If not, there are other possible vehicles.
2.8.2006 12:44pm
Kovarsky (mail):
ditty,

FISA addresses "international calls" in the sense that they originate in the united states and terminate elsewhere.

whether you want to call that international or domestic is the business of the media people.

but i'm a little confused about precisely what it is that your skeptical of - you don't believe the administration's admission that they did not get FISA warrants when FISA purports to require them? Such warrants would only be applicable to the types of calls I outlined above.

Quite frankly, it seems like you are a little confused about precisely what FISA covers and precisely what the administration has stipulated to. That's not to say that FISA is necessarily constitutional, or that the AUMF doesn't alter FISA, or any number of things. But to advance the idea that the administration doesn't tap calls leaving the united states for foreign destinations - quite frankly - flies in the face of every factual stipulation made on either side of this debate.
2.8.2006 12:59pm
Medis:
I have a "meta" observation.

For those of us who have been participating in these discussions since the beginning, it is obvious something odd is going on. After the newspaper stories broke, and after the Administration confirmed the existence of a new program, the Moschella Letter came out, which outlined the Administration's legal reasoning. A number of people here and elsewhere started pointing out the insufficiencies in that reasoning.

At that point, we started getting a series of these arguments to the effect that no matter what the Administration had stipulated, there was nothing new going on. At that time, I noted the odd coincidence of timing--just as the Administration's legal arguments were getting a cold reception, people started claiming there was no real need for those legal arguments anyway.

Gradually, these discussions died down, and in the meantime, the Administration came out with more detailed and comprehensive arguments. Once again, various commentators critically reviewed these arguments, and others responded to those criticisms, but for the most part our discussions focused on the legal issues.

But just now the Judiciary Committee hearings began, and one obvious fact was that a majority of the Committee, including several Republican Senators, just wasn't buying the Administration's legal arguments. And now we are suddenly seeing a flood of those same old arguments to the effect that the Administration doesn't need those legal arguments anyway.

Curious timing, that.
2.8.2006 1:06pm
Medis:
af,

I think that your analysis is part of why Clinton v. City of New York, the "line item veto" case (although arguably that is a misnomer), is relevant. In that case, the Court basically does not allow Congress to delegate its Article I legislative power to the President. As Justice Kennedy elaborates, the constitutional separation of powers is ultimately there for the benefit of the people, not Congress. So, the Constitution does not allow even a willing Congress to go along with a concentration of powers in the hands of the Executive.
2.8.2006 1:11pm
jrose:
srg,
the AG doesn't want to concede, even implicitly, that he must obey FISA or that Congress can limit what the President does
Firstly, I do not see how telling the truth (assuming it is the truth) that the surveillance is not within the scope of FISA, is a concession of any kind by the Administration. Secondly if we accept that it is somehow a concession, aren't we talking about a turf battle (see Dave M's post), rather than your original, more-noble hypothesis of the AG's motive (the belief that describing it accurately would compromise national security).
2.8.2006 1:17pm
Kovarsky (mail):
can we drop the "this is a political issue" vs. "this is a legal issue" rhetoric unless we clarify whether we are speaking in a descriptive versus a normative sense.

sure, as a descriptive matter, it's a political issue. sure, it's clear from the polls that the public doesn't seem to care whether the president went through the appropriate channels or not, they just want the program in place and don't care all too much about this minor incursion upon their civil liberties.

but the idea that because the public doesn't care about the legalities of it doesn't mean that, normatively, the legalities shouldn't matter. "o well the public doesn't care about the potential illegality" is not an answer to the question of whether the program was illegal or not.

a couple of other points:

(1) i think its very telling that lindsay graham, a former military man, lawyer in the jag corps, is the second most vocal reppublican detractor. so these claims that pit "legalese" at one pole versus "politics/reality/security" at the other seem to me to be a curious dichotomy.

(2) ditty, i actually think people are giving you too much credit for your argument, which is essentially that the administration has admitted to violating FISA in order to disclose operational details. not only do you lack any evidentiary basis for that conjecture, but it also flies in the face of a very obvious intuition based on observation of the administration's behavior - why, on earth, would they confess to violating FISA in order to avoid disclosing operational details when on almost every occasion they have avoided disclosing those details through assertions that don't involve breaking laws.

(3) i'm getting a little tired of this operational details point. i'm obviously in agreement that any details that would help terrorists should not be broadcast on C-SPAN, but it's not clear to me either why (1) they cannot be shared with other entities with strong records in not leaking information; and (2) why "is there anybody that has been falsely arrested on the basis of information obtained through this program" is an operational detail that could help the terrorists.
2.8.2006 1:17pm
Tom Holsinger (mail):
Final points of information:

Ditty said: "Purely domestic surveillance is the responsibility of the FBI, not the NSA."

This is useful in understanding how misleading Attorney Gonzales' testimony is, and how gullible the Senate Judiciary Committee is.

The same NSA staffer, sitting in the same cubicle in an NSA cube farm, wears many different invisible hats. When conducting domestic surveillance he wears his invisible FBI hat. When conducting foreign surveillance he might be wearing no hat (acting in his official NSA capacity), or invisible hats with the flags of various foreign countries on them while conducting surveillance as their duly appointed agent. All of these hats are legal fictions.

Ditty, the FBI does not have the budget, the personnel, the equipment or the institutional expertise for more than minor electronic surveillance. It must rely on personnel detailed from the NSA. As a practical matter, the NSA is it for electronic surveillance of any sort.

So Gonzales sits there assuring the Senate Judiciary Committee that the NSA is only doing foreign surveillance, with invisible fingers crossed behind his back because his definition of NSA at that point is of NSA personnel not wearing any of their invisible hats. And the Senators believe him.

Some people are catching on to this game.

Bruce,

The FISA provision creating a private right of action was written to specifically overrule a federal circuit court decision which I cited in a previous thread. I no longer recall the cite, but it was from the government's appeal/writ of a district court ruling granting summary judgment for the plaintiff in an illegal surveillance case. The plaintiff was a Detroit lawyer of Syrian extraction and the surveillance was of his telegrams and phone calls to and from Syria in the course of his legal practice. I think the district court ruling was in the early 1970's and the circuit court ruling was about 1975.
2.8.2006 1:20pm
jrose:
Dave M,
This is, first and foremost, a turf battle
That is a reasonable explanation as to why the Administration would not seek a FISA warrant even though they would have gotten one. IMO, the Administration is attempting to grab too much power (will torture be next).
2.8.2006 1:22pm
jrose:
Ditty,
You don't seem to understand that the AG *CAN'T* make the same arguments I am making without disclosing operational details that will almost certainly reduce the effectiveness of the surveillance.
Why can't the AG make the claim that the surveillance is not covered by FISA, argue revealing the details to prove it would compromise national security, and present the details to support the claim in closed sessions to the Intelligence committees?
2.8.2006 1:27pm
Ditty:
Medis, you are absolutely right in that I am not in a position to know what is going on. None of us are.

And I don't want you to think that I am defending the Administration. I'm not.

By the way, I just reviewed the transcript of Attorney General Gonzales' testimony from the other day, and nothing in that testimony contradicts what I have hypothesized.
2.8.2006 1:50pm
Ditty:
jrose:

Why can't the AG make the claim that the surveillance is not covered by FISA, argue revealing the details to prove it would compromise national security, and present the details to support the claim in closed sessions to the Intelligence committees?


Essentially, that has happened. The AG claimed that the surveillance under this program isn't covered by FISA. I don't necessarily agree with the AUMF rational (although it does have a strong basis in history), but that is the tack that was chosen. One thing about it is that it is a plausible reading that it allows the AG to say more than "I can't answer that for security reasons".

He argued numerous times during his testimony that revealing the details of the program would compromise national security.

The details of the program have already been presented to the respective Intelligence Subcommittees in both houses of Congress, along with select members of the leadership of the Senate and House of Representatives.
2.8.2006 2:16pm
Ditty:
I would also like to point out that the AG also said in his testimony that FISA is used where it is appropriate.
2.8.2006 2:23pm
jrose:
Ditty,
The AG claimed that the surveillance under this program isn't covered by FISA.
The AG made no such claim. He claimed it is covered by FISA, but the AUMF sastifies section 1809 of FISA. In contrast, you theorized the program is not covered by FISA. I again ask, why didn't the AG make an argument consistent with your theory?
2.8.2006 2:52pm
Just an Observer:
Kovarsky: ... can we drop the "this is a political issue" vs. "this is a legal issue" rhetoric ...

I'm afraid that plea will not be heeded.

It seems to be the deliberate intent of several posters repeatedly to obfuscate legal issues by pretending this is only a political dispute. Blurring that distinction, in fact, is the core strategy of the Bush administration and its operatives in this matter, and they view the blogoshere as a very useful tool.

Because the Volokh Conspiracy focuses first on legal issues, unlike the partisan cheerleading sites populated largely by "moonbats" or "wingnuts," such obfuscation itself counts as a PR victory for the White House.
2.8.2006 3:09pm
Medis:
JaO,

I also suspect that we are seeing the effects of some sort of organized or semi-organized campaign. I'm actually heartened by what I might call a renewed offensive on the Volokh Conspiracy, which seemed to start during or soon after the Gonzales hearing. I take it that means that certain people are not particularly confident that the hearings will go well for them.
2.8.2006 3:19pm
Tom Holsinger (mail):
Rich Lowry on NRO's Corner has a post indicating that David Rivkin and Lee Casey feel as I do that oversight in an amended FISA be done by Congress rather than a court. Here is the text of Lowry's quote of Rivkin &Casey, followed by a repeat of my post from yesterday:

A LEGISLATIVE OPTION ON NSA? [Rich Lowry ]
Rivkin and Casey float one at the end of their excellent op-ed on the NSA program in the Journal today:

In short, there is no obviously constitutional and practical means of subjecting NSA's al Qaeda surveillance program to regular judicial review. Instead, Congress must itself shoulder the responsibility. It might enact a new FISA that would fully bless the president's activities, but add enhanced oversight, involving more information sharing with more members of Congress, backed up by the threat to use its fiscal powers to de-fund the program if abuses arise.

Having thus secured a bigger seat at the table, Congress would also have to share fully in the political risks and rewards associated with the NSA terrorist surveillance program. This may well be politically difficult and bureaucratically cumbersome, but no one ever said that constitutional governance is easy. Despite much grumbling by the critics, the real constitutional problem we face today is not the administration's program. Rather, it is demands that the president's war powers be checked by the judiciary, which is not politically accountable, instead of by Congress, which is.

Posted at 03:07 PM


Me yesterday:
And, for the record, I favor a pure oversight function for a revised FISA court - that its only function be to require that the executive branch disclose to it all warantless electronic surveillance of persons lawfully resident in the U.S. Such oversight would include an enforcement mechanism. This revised FISA court would have no authority to require, or authorize, anything but disclosure to it.

The purpose of such oversight would be to create a secret permanent record of warrantless surveillance for Congress to periodically review for abuses.
2.7.2006 8:46pm

My post did not use the same definition of oversight as Rivkin &Casey. I defined FISA oversight as only receiving reports, albeit with an enforcement mechanism to require that the reports be made. It would be up to Congress to do something concerning the reports. Rivkin &Casey define oversight as doing something with the information.

But we have the same goal - Congress would have the responsibility concerning executive branch surveillance abuses. I'd just have a secret court collect the information, as there is a need for constant ongoing collection, and analysis, of the underlying data.
2.8.2006 5:21pm
Some Guy:
Very interesting--this is one possibly legitimate criticism of FISA. I do wonder if the FISA court is really to be considered as a judicial court. If so, then I'd be in favor of converting its purview into congressional authority. Though if not, then there may be no need (though maybe it shouldn't be called a "court" anymore.)
2.8.2006 5:33pm
Jack John (mail):
Medis the Nazi: I also suspect that we are seeing the effects of some sort of organized or semi-organized campaign.

So...anyone who disagress with you and finds your legal analysis to be weakly founded...is Dick Cheney's marionette. Riiiiight.
2.8.2006 5:58pm
minnie:
Medis the Nazi: I also suspect that we are seeing the effects of some sort of organized or semi-organized campaign.

This is the way they try to intimidate you. If you hit upon an obvious truth, they, yes THEY, try to mock and dismiss you as if you were a wingbat.

Well, Jack John, if Medis is a Nazi, then that makes me one too, since I noticed the very same thing, and was going to comment on it, but strangely enough, although this is called the Volokh Conspiracy, whenever someone expresses a minority view that displays a little more heightened awareness of what's going on that most have, someone else pops up to call him Oliver Stone.
2.8.2006 6:45pm
Ispe Dixit (mail):
From an operational capabilities standpoint the most interesting part of Gonzales’ testimony:

“Just as we can't demand that our soldiers bring lawyers onto the
battlefield, let alone get the permission of the attorney general or a
court before taking action, we can't afford to impose layers of
lawyers on top of career intelligence officers who are striving
valiantly to provide a first line of defense by tracking secretive Al
Qaida operatives in real time.”

This is, of course, cryptic. What does “tracking secretive Al
Qaida operatives in real time “ mean? Tracking communications? Physical location? Physical conversations? Allow me to wildly speculate….

Earlier, Gonzales made a statement about a vital aspect of the program as being able to find the location of Al-Qaeda members in the United States. On the surface this might be read as if locate means: “Identifying terror suspects for subsequent domestic-to-domestic surveillance.” The addition of the “real time” comment, though, has got me thinking….

There are many inadequately explained inconsistencies swirling around this program.

1) Why, if the president concluded he had the inherent authority to eavesdrop on al-Qaeda suspects inside the United States, did he not simply extend this to domestic to domestic calls? – there is nothing that is stopping him from a legal standpoint if he believes he has exclusive power in this regard and is targeting suspected terrorists.

2) The Washington Post seems to take this program as a massive program including AI based link analysis/pattern analysis/social network analysis, speech, voiceprint, image, video, and paralinguistic analysis of streaming TERABYTES of data. I find it hard to believe that such capabilities exist even at NSA, but let’s assume that they do. Such a program would no doubt be used to ID potential terrorists. The warrantless eavesdropping program in question, though, seems more oriented toward surveilling suspects that have already been identified as suspect individuals. It has repeatedly been described as narrowly focused. Furthermore, Gonzales’ pointed reference to other programs makes me think that if the program that the Washington Post described does in fact exist, then such a program is likely one of these other “capabilities” Gonzales referred to. Further complicating matters, most of what the Post used as source documents came from DARPA proposals -- not ARDA proposals, which is the NSA’s major conduit for advanced research.


3) If primary purpose of the program is to collect intelligence, why did the administration treat it as a covert action program for oversight purposes? In the world of intelligence, only covert action or “special activities” programs are allowed a waiver from the committee review process. Covert action is defined as “…an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly...” Was the administration illegally waiving the program, or does it perhaps contain some sort of COMINT related covert action component?

It may well be that the use of the term “wiretap” is misleading. From a legal standpoint, NSA would be concerned about electric surveillance, which is a bit more broad in some senses than the mental image of a wiretap. What about 50 USC 1801 (f) (4)? This covers monitoring devices in the United States that are placed simply to “acquire information, other than from a wire or radio communication…”

It could be that while one of the parties to these “wiretaps” is a suspected Al-Qaeda agent in the United States (or, more properly, his cell phone), at the other end of the line is a covert intelligence officer. In that case it really wouldn’t qualify as a wiretap – unless the purpose of the call was (unbeknownst to the Qaeda agent) to use the cell phone as a bug, tracking the location of the terrorist in the process and perhaps sampling audio at intervals as well. The covert action component could be to somehow impersonate Al Qaeda agents calling from overseas for the purpose of creating reactions for intelligence gathering purposes or for who knows what else.

Most cell phones have automatic answering modes and silent modes. Using the two in conjunction is a well-worn trick to bug a meeting – leave your phone in your bag at an important juncture, go to the bathroom and call the phone and listen in on what everyone is saying in your absence. But what if NSA has a way of remotely and secretly activating such a mode by calling the phone? Or, if they have found that terrorists prefer a certain type of, say, disposable cell phone, what’s to keep them from buying up those phones through a shell company, add a few features courtesy of Uncle Sam, and then put them on the market in select locations? Once a suspected terrorist has been ID’d in some other way, these special features could be activated and then you start tracking the terrorists in real time and sampling the audio in the vicinity. The international nature of the wiretaps could be the attempt of the administration to force the program to comport with FISA in light of 1801 (f) (4). If the covert agent is overseas, where is the “surveillance device?” – is it the recording device outside the US with the agent or is it the phone in the United States that the terrorist himself bought? This might be one way to make sense out of Hayden’s comment that the terrorists didn’t always behave as if they were being monitored.

The covert action part of the program could be to stimulate reactions to better facilitate tracking, or perhaps to draw sleeper cell agents away from their apartments at certain hours so the apartment could be bugged, etc.

Why not use FISA? Well, if the Washington Post’s program was used to ID a potential target, it might be hard to explain to the FISA court that we are basing the decision to bug Khalid’s cell phone on the results of an AI program that gets 99% false positives.

Very far fetched – I know – but not everything adds up so far in the public description of the program…..
What think ye – how far off the deep end have I gone?
2.8.2006 7:17pm
Medis:
I assume this was already obvious, but if it wasn't, I want to make it clear that there are many commentators here with whom I often disagree, but I would never suspect that they are personally involved in some sort of organized or semi-organized PR campaign. Indeed, my comments were in reference more to particular arguments than to particular commentators. And I don't have any particular problem with commentators bringing arguments over from partisan blogs, although I think it is a good idea if people note when they are doing so.

Again, though, I suspect this was already obvious.
2.8.2006 9:25pm
Kovarsky (mail):
minnie,

dont respond to JJ. when you don't pay attention to him, he just stops talking. he's like a 4th grader in that and other respects.
2.8.2006 9:39pm
Jack John (mail):
Unlike the rest of you, I have a job.
2.8.2006 10:41pm