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Relevant Signals?

My post on the letters responding to legal arguments on wiretapping, and some of the feedback to it, got me thinking about two signals beyond mere political pigeon-holing, at least one of which is of greater substantive relevance. First, the DOJ memo has a very strange attribute -- its lack of attribution. It is not on anyone's letterhead or signed by anyone. When I was at OLC (in the first Bush administration and in the Clinton administration), everybody recognized the importance of the name(s) of the people at the top of a document -- it told you who, exactly, was putting his or her name behind a given DOJ document. I haven't followed DOJ practice closely, but the lack of any name struck me as odd, and perhaps significant.

Second, and more obviously significant, is the fact that Curt Bradley, along with Jack Goldsmith, has written articles that have (to oversimplify matters greatly) articulated A) a broader vision of executive authority than most other academics would adopt, and B) a particularly broad construction of the September 18, 2001 Authorization for Use of Military Force statute on which the Administration attempts to rely. Jack Goldsmith probably feels constrained from joining the debate (given that he was at OLC for some of the period in question), but Bradley's joining of the letter criticizing the government's position seems quite significant. Bradley and Goldsmith considered the AUMF at great length and put forward a quite expansive interpretation of it. If Bradley nonetheless doesn't think that it provides a legal justification for the Administration's wiretapping, that tells us something -- and a good bit more than the fact that he's not on the political left

Traveler:
I have strong libertarian leanings, and sure-as-heck don't believe that the President can ignore the Fourth Amendment and wiretap domestic conversations without probable cause. But I sure hope you or Orin have a better argument than Marty Lederman, et al., as to why the AUMF, which apparently authorizes not only direct military force against al Qaeda, but authorizes detentions and the defense of American airspace by foreign/NATO aircraft doesn't authorize electronic intelligence-gathering directed at al Qaeda-linked individuals. "Curt Bradley" thinks so isn't a very good argument. And I can't see how, by specifying a wartime procedure, FISA has prevented the AUMF from authorizing electronic surveillance of "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 . . . in order to prevent any future acts of international terrorism against the United States" doesn't include the acquisition of signals intelligence, by NSA (a unit of the DOD), against al Qaeda, who planned and committed the 9/11 attacks and undoubtedly plans future acts of terrorism.

Civil liberties are important, but how did Congress not already concede this issue?
2.7.2006 10:15pm
ron (mail):
You're right in feeling that you are being told something. Watch and see. Rats are beginning to leave the ship. More and more, less and less professional people are going to want to be connected to Bushco's antics.
2.7.2006 10:46pm
Medis:
Traveler,

I believe that you have misstated the issue. FISA doesn't prohibit electronic surveillance of agents of Al Qaeda. It just--sometimes--requires certain procedures when doing so.
2.7.2006 10:57pm
minnie:
Very interesting, perceptive points, Stuart.

Here's an excerpt from today's news:

Cheney Dismisses Criticism of Spy Program

Vice President Dick Cheney shrugged off congressional criticism of the Bush administration's domestic eavesdropping program Tuesday, suggesting some in the know who previously raised no objections were changing their tune.

He also expressed little interest in working with Congress to settle legal disputes.

"We believe that we have all the legal authority we need," Cheney said in an interview on PBS' "NewsHour With Jim Lehrer."

Asked about calls from the day before from both Democratic and some Republican members of the Senate Judiciary Committee to work with Congress to sort out differences, Cheney said, "Well, I don't think it would necessarily be in the interests of the country especially if we get into a situation where the legislative process leads to the disclosure of sensitive operational matters with respect to this program."

Dr. Strangelove? I was thinking that Kennedy's position during the hearings was a little hard to read, in that it appeared that the Democrats and some of the Republicans seemed to be agreeable to an end result of merely changing existing laws to accomodate the government's warrantless program.

This statement of Cheney might suggest that the Democrats, at least, have some inside knowledge of other secret programs (after all, it's reasonable to think that at least one of the eight informed people might be freaking out, and passing along some info)and knew in advance that Cheney/Bush et al had no intention of asking for different legislation, as they want carte blanche to do whatever they want.

So the "we'll work with you" gambit might have been a clever ploy to expose the intransient government position. As a matter of fact, that's another place Gonzales chose his words carefully. He wasn't really open to the idea, but repeated that "we're always interested in listening to suggestions" mantra.

Traveler, please be serious. Nobody is talking about surveillance on Al Queda. Ya, you're right, go at 'em.

It's the few hundred million other people we are worried about.
2.7.2006 10:58pm
KMAJ (mail):
Prof. Benjamin,

Just three points:

1.) Why the continued use of the inaccurate and pejorative term 'wiretapping' ? I have seen no evidence that the NSA surveillance program is using 'warrantless' wiretapping, but warrantless surveillance.

2.) Why would one assume that if any 'wiretaps' were used, they were 'warrantless' ? When one considers that this president has used the FISA process more than any president since FISA's inception, it would seem to, at least, lend credence that he used FISA quite liberally and extensively, to the point the 9/11 Commission said the FISC was not efficiently handling the workload.

3.) Working in the OLC does not necessarily provide an insight into someone's political leanings. Nor would citing his writings, if one were to assume he was writing to represent the views of his client, the president. It is a fact, that as a whole, the legal profession leans left of the citizenry.
2.8.2006 12:15am
AlanDownunder (mail):
Just one point:

'Warrantless wiretapping' is no more pejorative than 'warrantless surveillance'

Leading to one observation:

The KMAJ defense is scraping the bottom of the barrel.
2.8.2006 12:49am
wb (mail):
Having listened to and read arguments on both sides, I conclude that there is a substantial body of knowledge lawyers (some even in the Congress) who believe that the Administration has broken the criminal law. Even the AG admits there is a plausible argument for that position.

My question is who has standing to bring this before the Courts? Does anyone except for those Americans who were surveiled illegally? And if that is so, how would the imjured parties ever know it as their identity is top secret?

Please explain.
2.8.2006 12:50am
ron (mail):
wb: it's an interesting question. ACLU is representing some prominent americans who suspect they may have been spyed on. Typically, the federal courts have been pretty strict on standing requirements, but have sometimes allowed NGOs (Sierra Club e.g.) to have standing. Here, a good argument can be made that just because the issue of damage cannot be determined without court intervention, standing should be provided. There are also the criminal cases where surveillance may have been the resulted of illegal searches--fruit of the poisonous tree. One is already pending before the SCt.
2.8.2006 1:15am
Wintermute (www):
Is it too early to "Murtha" the Republicans with an amendment to AUMF making explicit that it does not contravene FISA?

BTW, click this link to read up on Heather Wilson's now wanting to know details, in the NYT (ERIC LICHTBLAU)
2.8.2006 2:19am
anonymous22:
On to why I don't think the legal issues have any real substance: I don't think that the framers of the constitution, who lived in an age of legal formalism, would have perceived a great difference between eavesdropping with secret judicial authorization and eavesdropping without such authorization, nor is there any pragmatic reason for making a great distinction between the two. Honestly I don't see how the judges act as any sort of a principled check on this power if they are totally insulated from any sort of public input. The FISA "judges" are at best bureaucrats who make sure everything is on the up-and-up, a sort of internal inspector general; their "court" exists entirely within the executive branch. The idea of "secret judges" has no common-law pedigree; it is an ancient inquisitorial concept that has no history in this nation. I just mean to be suggestive here; like everyone else I don't know what the FISA judges have actually been up to.
2.8.2006 2:27am
KMAJ (mail):
AlanDownunder,

If you do not know the difference between surveillance and wiretapping, far be it for me to educate you. Suffice to say they are not synonymous, which makes your ad hominem response amusing.
2.8.2006 4:50am
minnie:
I decided to bone up a little on history, my short suit.

I found this quote:

The scientific concept, dictatorship, means neither more nor less than unlimited power resting directly on force, not limited by anything, not restrained by any laws or any absolute rules. Nothing else but that.

V.I. Lenin

I don't know yet if he was for it or against it, although obviously he practiced it. Doesn't this sound like Bush circa 2006?
2.8.2006 5:50am
Apodaca:
anon22 writes:
Honestly I don't see how the judges act as any sort of a principled check on this power if they are totally insulated from any sort of public input. The FISA "judges" are at best bureaucrats who make sure everything is on the up-and-up, a sort of internal inspector general....
Actually, "at best" -- and in fact -- they are independent Article III judges appointed for life tenure to the federal bench.

Second, it is inaccurate to claim that they are totally insulated from public input. Case in point: the FISA Court of Review accepted amicus briefs in the 2002 appeal from both ACLU/CDT/EPIC/EFF and from NACDL. (See the front matter on the Court's subsequent opinion.)
2.8.2006 6:58am
Medis:
a22,

I think we can indeed ask whether FISA is adequate in light of the 4th Amendment. But as Apodaca notes, the FISC is made up of Article III judges, people who cannot be commanded by the President. In contrast, as became clear in the Gonzales hearing, the Administration wants only people in the Executive branch involved in the process.

I think the Founders could tell the difference.
2.8.2006 8:17am
Apodaca:
Medis, I think the problem is that the Founders were victims of flawed pre-9/11 thinking. Clearly, their failed policies must be rejected in their entirety.
2.8.2006 8:26am
Traveler:
Wintermute:

It may be true that there would be the votes to pass legislation through Congress that repealed any authorization in the AUMF for electronic surveillance of Americans. Unfortunately, the Democrats are so interested in proving that the Bush administration "broke the law" that they are unwilling to frame the issue that way. And Republicans will never go along with a version that "clarified" the AUMF retroactively.

Of course, the legislation I hope to see someone propose would say something like: "Recognizing that the Fourth Amendment does not require 'probable cause' for electronic surveillance of international communications, the National Security Agency is authorized to monitor communications between Americans and persons outside the United States who are members of, or linked to al Qaeda or other Islamofascist organizations."

I tend to think most Americans would support this. Unfortunately, since Congress is determined to default on any constitutional responsibilities to share authority with the executive and judicial branches for the conduct of the war on terror (with the notable exception of the McCain interrogation-technique legislation -- a topic Congress waited nearly four years to take up), I doubt we'll see it any time soon. Much easier for the Judiciary Committee to extend their moment in the spotlight with these grandstanding hearings.
2.8.2006 9:28am
Medis:
Traveler,

Interestingly, four Republican Senators on the Judiciary Committee proposed something along those lines, and Gonzales rebuffed them. Cheney was similarly dismissive of this idea. And, of course, some of the other Republican Senators seemed willing to go along with the Administration's attempts to avoid any congressional action whatsoever.

So, I think if you are looking for people to blame if Congress fails to act, you should focus on the Administration and its watercarriers in Congress. Of course, this is one of the problems with political parties in general, and with the specific situation in which a single party controls both the Presidency and Congress--the separation of powers as envisioned by the Founders is undermined.
2.8.2006 9:40am
David Matthews (mail):
"at least one of which is of greater substantive relevance."

I'm not sure which point you believe is of "substantive relevance."

The identity or background or reputation of a signatory to an opinion is not "substantively relevant" to the worth of the opinion, at least not in logic, although many in academics seem to think it is.
2.8.2006 10:00am
eddie (mail):
Does anyone really think that this is about the "legal" arguments? This is purely a political maneuver. By dressing up such transparent power grab in 9-11/security/wartime president clothing, the administration thinks it can win the political battle (and even perhaps avoid any real legal battle).

What I find nauseating is that there is not more outrage at the speciousness of the arguments put forth. To this administration this is all the same as some hypothetical discussion in law school. The ramifications are truly serious here.
2.8.2006 10:37am
Medis:
eddie,

Interestingly, I think some Republican Senators on the Judiciary Committee basically share that view. But I think they are looking for a way to make it clear to the American people that this is not just business as usual.

Obviously, I am rooting for them to succeed. And I don't think their cause is hopeless.
2.8.2006 10:49am
Roger (mail):
I don't get it. Does this mean that Congress, after deciding that some lawbreakers deserve a break, should pass legislation declaring their conduct to be legal? There are a lot of people in jail at the moment who insist that it was very difficult, if not impossible to conform their needs to that of the statutes which were passed in a pre-911 era. Many drug addicts insist that they did not want to break the law, but their need to use drugs required them to possess them. Their possession of the drugs was not on an extended basis. They told very few people about their possession, and their status as "addict" was reviewed every 45 days, and ultimately continued because of its abject post-911 necessity. Many overtly legal institutions cooperated with their addict ventures. Telcom companies supported their suppliers, often giving them phones on credit. Large oil companies set up distribution points (often called "stop and gas" or "food marts") which provided them with the necessary material to ingest their drugs.

In a post-911 world, Congress can, should, and must legalize crack. This is what all these judges who have advised criminal defendants that their proper recourse was with the legislature were talking about.
2.8.2006 12:24pm
Justin (mail):
"What I find nauseating is that there is not more outrage at the speciousness of the arguments put forth. To this administration this is all the same as some hypothetical discussion in law school."

No. The hypothetical discussion in law school would have been prevented by the simple fact that really bad arguments get quickly shut down and the positer of that argument gets embarrassed (and a bad grade, if he is a student).

This lends to Stuart Benjamin's broader point. When Curt Bradley, the most conservative (liberal in the sense of interpretation, conservative in terms of casting lot with Bush and Co.) intellectual nonhack (i.e. not you, Yoo) on the issue of Article II and foreign powers finds the argument rediculous, it begs the question of how some of the commenters here (who may often give much deference to the correctness of the administration) can come to an opposite conclusion in an intellectually honest way.
2.8.2006 1:49pm
KMAJ (mail):
We are all still doing a lot of theorizing based upon assumptions. There are certain facts that are undeniable that make the NSA issue unique, the most critical one being that the US is part of the theater of war, this has not occurred in modern history (since the beginning of the 20th century). The question being should, or was it intended that, sleeper cells, the equivalent of an enemy military unit, be protected by the Constitution ? The illogic of a yes answer to this question would make the Constitution a suicide pact. It escapes the bounds of reason to afford the enemy such protection within the borders of the country they seek to strike, that they do not enjoy outside those borders. I proffer that it is necessary for security to abridge those sleeper cells rights. This does raise legitimate concerns, but can be addressed by a very comprehensive system of post oversight and review to identify abuses.

Second, communications technology has advanced beyond what even Patriot Act revisions deal with. I feel confident in assuming that any 'wiretaps' on domestic phone calls is being done within the FISA protocol, due to the number of warrants that have been applied for during this war. We enter a very grey area due to technology when we address pre-paid phone cards and pre-paid cell phones. Depending on the provider of these products, their access number could be in the US, but can be used any where in the world. On phone records, this would show a purely domestic call, when reality is that one end is outside the US. The only way to monitor such calls would be a cooperative intercept with the provider of the phone cards for calls coming in and out of the access number. This is further complicated when the phone card companies are using the lines/property of another for their service. The same would hold true for all pre-paid cell phones, which are routed through specific lines to monitor the minutes used. A similar procedure would be necessary to monitor those specific lines. Are these two applications covered under FISA with the blurring of the line of domestic and international/foreign ? Obviously, the surveillance/monitoring would have to be within the US at the source, the providers of the cell phones and phone cards.

Third, the technology and destructive capabilities of modern weaponry has to be considered in evaluating the threat level and need for security. We know the terrorists are trying to acquire a nuclear weapon as well as chemical and biological weapons. We also know they have succeeded in acquiring some, from their uses and discoveries of sarin.

We do the public a great disservice when we ignore the realities of the post-9/11 paradigm in favor of legal parsing of intent with a total disregard of the external forces at play and the consequences of being wrong in parsing, also known as risk assessment. Risk assessment is an area where the executive branch is best equipped to make a determination and the legislative and judicial branchs are at their weakest. That does not mean there is autonomy in that area, but does provide the executive branch a superior position in its constitutionally assigned role to protect and defend. The Founders expounded in support of this view numerous times, as we have seen cited in many posts on this issue.

The main point being that this is a new issue, one that has not been decided or governed by any specific precedent that encompasses all the different aspects in play on this one. I proffer that the formulaic analysis we are engaging in to try to divine is flawed, as most analysis that I have seen attempts to assess within a legal vacuum that denies any non-legal influences or shifts in the paradigm and constructs that the War on Terror presents and created by the events of 9/11. All the precedents, with the exception of Hamdi and Sealed Case, are relics of the pre-9/11 legal paradigm and construct. That does not mean they are irrelevant or minimized, but, it is my opinion, that the readings of those precedents most be adjusted to incorporate, or be influenced by, the realities and risk assessment the War on Terror presents. To do otherwise, our government would be acting irresponsibly and be derelict in carrying out their duty.
2.8.2006 2:19pm
Some Guy:
I'm intrigued by the anonymous22's notion that the FISA court is not in fact a court. It's just an executive committee--actually, if it isn't a court, I would argue it's some sort of legislative office, since it was set up by Congress. If so, then this would seem like a legitimate exercise by Congress of oversight.

General consensus? Is the FISA court a judicial body, or not?
2.8.2006 2:29pm
KMAJ (mail):
My non-legal opinion is that FISC is an Article III court created and governed by the legislative branch as oversight, and, rightly or wrongly, given its authority or purview by dictates of the legislative branch. Is it possible that the legislative branch can overreach in assigning authority ? Sealed Case raised that question of constitutionality without providing an answer and there has been no case argued that has decided that question, so we are left with divining how far the legislative branch can encroach.
2.8.2006 2:43pm
Medis:
Some Guy,

It seems to me the FISC is an Article III court with a limited subject matter jurisdiction, like the United States Court of International Trade. But I'd be happy to be be correct.

KMAJ,

Two points.

First, you write: "The question being should, or was it intended that, sleeper cells, the equivalent of an enemy military unit, be protected by the Constitution ?"

But I think that is the wrong question. The right question would be whether U.S. persons, including U.S. citizens, who are suspected or accused of being members of "sleeper cells" should be protected by the Constitution. In other words, merely because someone is suspected or accused of being an enemy agent doesn't mean that is true, and much of the Constitution is precisely about that difference.

Second, you write: "Risk assessment is an area where the executive branch is best equipped to make a determination and the legislative and judicial branchs are at their weakest."

I agree that the courts are not the best equipped to make such determinations on a general policy level, although they do it all the time on a case by case level (eg, think negligence law).

But where are you getting the idea that the legislative branch is somehow ill-equipped for such a job? That is what legislatures do: they investigate, find facts, consider various competing cost and benefits, assess risks, and ultimately make policies. To put this point another way--what do you think legislatures are supposed to be doing, if it is not doing things like make policies on the basis of cost-benefit analysis?

Frankly, I think you have bought into the Strong Man Myth, without thinking about whether it has anything to do with our system of government. The Myth is that by concentrating power into the hands of a single Strong Man, we can best protect our society from its enemies and other "risks". As an aside, one might note that those in line to become such Strong Men tend to be major proponents of the Myth.

But the Founders thought that was a load of nonsense, and they fought a war to create a nation that would not be governed by this Myth. And I think the Founders were quite wise on this issue: the Strong Man is not only likely to abuse his power, but ultimately he is also likely to be bad at doing his job.

And that is because when the Strong Man is unchecked, and need not go to any other power for review of his decisions, and indeed need not heed advice from any independent source, he will end up confusing whatever he wants with what he thinks the society would want. In other words, he stops seeing a difference between his personal will and the interests of the nation. And as a result, all of society will get what the Strong Man wants for the society, but not necessarily what the society thinks would be best for itself. And that is why we don't follow the Strong Man model.

In short, you are fond of noting that the Founders were concerned about the potential overreach of the legislature. But at some point, you might want to think about why despite those concerns, we actually DO have a legislature.
2.8.2006 3:09pm
Medis:
Some Guy,

That should read "to be corrected".
2.8.2006 3:10pm
Just an Observer:
One possible sign of political softening:

I note this post at NRO online by Rich Lowry, whose writing often is a good indicator of White House positioning. I don't have a subscription to the WSJ to see the whole op-ed he references. But the quoted matter comes close to describing the compromise Sen. DeWine floated at the hearing Monday.

While Cheney on PBS last night played Bad Cop, these surrogates are playing Good Cop.
2.8.2006 3:34pm
KMAJ (mail):
Medis,

You write:

First, you write: "The question being should, or was it intended that, sleeper cells, the equivalent of an enemy military unit, be protected by the Constitution ?"

But I think that is the wrong question. The right question would be whether U.S. persons, including U.S. citizens, who are suspected or accused of being members of "sleeper cells" should be protected by the Constitution. In other words, merely because someone is suspected or accused of being an enemy agent doesn't mean that is true, and much of the Constitution is precisely about that difference.


The context in which I raised my question could have been clearer, mea culpa. The question raised is within the parameters of a war footing, not peacetime. To offer constitutional protection from investigation to ascertain whether it is true is a very dangerous proposition when the US is part of the theater of the WoT. If proven untrue, there should definitely be some strict guidelines that ensure that information is destroyed and not saved for future use.


Second, you write: "Risk assessment is an area where the executive branch is best equipped to make a determination and the legislative and judicial branchs are at their weakest."

I agree that the courts are not the best equipped to make such determinations on a general policy level, although they do it all the time on a case by case level (eg, think negligence law).

But where are you getting the idea that the legislative branch is somehow ill-equipped for such a job? That is what legislatures do: they investigate, find facts, consider various competing cost and benefits, assess risks, and ultimately make policies. To put this point another way--what do you think legislatures are supposed to be doing, if it is not doing things like make policies on the basis of cost-benefit analysis?


I think you take too broad of a context in your argument. Once again, I am referring to wartime decision making, not to establishing cost effectiveness. There is no writings of the Founders that claim the legislative branch, due to their large numbers and deliberative nature, is equipped to act quickly and efficiently, in fact, their writings present a contrary argument and prop up the necessity for a vigorous executive branch in the prosecution of war and ability to protect and defend.
2.8.2006 3:36pm
steveh2:
What is the statute of limitations for criminal prosecution for engaging in wiretapping in violation of FISA, for aiding and abetting such wiretapping, or for conspiracy to engage in such wiretapping? Because I think the only way for the issue to really be adjudicated would be for members of the Bush Administration to be indicted for violating the law. Maybe on January 21, 2009?

(This wouldn't happen, of course. But if criminal prosecution were a real possibility, I bet we wouldn't see the intellectually dishonest and disingenuous legal defenses of the program we are seeing now.)
2.8.2006 4:27pm
Medis:
KMAJ,

On the first issue:

Exactly what the constitutional protections should be, and whether they should vary in light of war, is a different question from whether there should be constitutional protections at all. Of course, the Constitution is not stupid on these issues--it uses flexible phrases like "unreasonable searches and seizures" or "due process of law" precisely so that the rules can depend on the interests (individual and societal) at stake as well as the practical context in which the rules will be applied.

But that is why it is so misleading--and really, arguing in pure bad faith--to ask questions like whether the Constitution protects terrorists. The underlying slander in that question is that if the Constitution did apply to the issue, it must lead to an unreasonable result, and so we must avoid even asking the question. But the Constitution is not so unreasonable.

To bring the point closer to the issue, the Constitution may well allow certain anti-terrorism surveillance without a warrant, or probable cause, or even any individualized suspicion at all. But to reach that result we need not say that the 4th Amendment, and the Constitution in general, does not apply. Rather, we need only note that the 4th Amendment allows such surveillance if it is not unreasonable. And that is how we should proceed--not with dismissing the Constitution, but with understanding it.

On the second issue:

You say: "I am referring to wartime decision making, not to establishing cost effectiveness."

First, as an aside, I didn't say "cost effectiveness". I said "cost/benefit analysis", which is a much broader concept.

Anyway, the claim that the Founders intended to leave all "wartime decision making" to the President is clearly false. And we don't need to guess on this issue--as we have noted many times, the Constitution specifically delegates numerous wartime decisions to Congress (well beyond the spending power, of course).

That is precisely the textual with this view: we don't have a Constitution that grants special emergency or wartime powers to the President, and which cuts back on the role of Congress during war. Quite the opposite: the Constitution continues to lay out an active role for both the President and Congress during war, one which is largely consistent with their balance and separation of powers during peacetime. In short, we go to war with all three branches of government, not just one.

And for all the talk about how 9/11 changed everything, I don't think it changed that. Indeed, I really believe that people who think we are somehow facing a worse overall problem now than we did during the Revolutionary War, or the War of 1812, or the Civil War, or even the Cold War, are far too easily swayed by what amounts to an appeal to a childlike vanity--that our problems are so unique that all those old Founding Fathers just couldn't understand what we are going through.

No, they well understood what wars of national survival look like. And they also well understood the Strong Man Myth--indeed, it was always one of the rationales for Kings: that they were needed to lead a nation to war. But the Founders decided that even in war, America would not have a King, and they wrote a Constitution that did not give the President the powers of a King in war, and they instead gave many of the traditional war powers of the King to Congress.

Unfortunately, the Strong Man Myth has never died, and it probably never will as long as our species is anything like it is today. But fortunately, I think the vast majority of the American people have no real desire to change the system of government--in peace and war--that we have been given. So, the question is just whether the people of the United States can find a way to stop those in power from giving them a new system of government (whether they like it or not).
2.8.2006 4:58pm
farmer56 (mail):
Medis

You accuse KMAJ of asking the wrong question?

I do this to my wife all the time.

Wife; I have a question.

Me; the merganser.

Wife; thats not my question.

Me; Then you asked the wrong question.

I just hang around 'cause you make me laugh out loud.
2.8.2006 5:20pm
anonymous22:
The key question, which I hope others will respond to, is: Is there any precedent for Congress setting up a court which exists entirely within the executive branch and oversees exclusively a traditional executive function?

As an analogous situation, suppose Congress, upset with Nixon's impounding of federal funds, set up an Article III court to oversee the direct expenditure of federal money, complete with a cause of action for those who lost out on federal money. The SC has occasionally struck down these sorts of novel administrative-judicial bodies.
2.8.2006 6:21pm
Just an Observer:
anonymous22,

Thee FISA court does not exist within the executive branch, although for security reasons its chambers are inside the DOJ building. The judges are U.S. District Court judges assigned to fulfill that role.

They oversee a "traditional executive function," the application and execution of warrants, just as ordinary judges and magistrates oversee the same function with respect to criminal warrants.

There are two primary differences between the FISA courts and general Article III courts: limited subject jurisidiction and secrecy.
2.8.2006 6:30pm
Colin:
Out of curiousity, do you know if the FISA judges travel to sit together for most cases, or if they decided some or most cases on pleadings transmitted to their chambers?
2.8.2006 6:33pm
Just an Observer:
Colin,

I don't know the answer to your question.

anonymous22,

Some more speculative comments:

I wonder if part of the reason we got into this jam is that the FISC judges, when they are sitting as such, have too little authority. If they were presiding as District Court Judges, they might have better tools at their disposal.

For example, can anyone imagine if a U.S. attorney met with the chief judge of his district and told him the government had decided it no longer needed to apply for Title III warrants in terrorism cases, that warrantless wiretapping was going on, and that the attorney general had determined there was nothing the court could do about it? I am not sure of the form, but I think there would be consequences.

Obviously, some FISC judges -- used to a more robust authority in their District Courts -- are frustrated with the constraints of the secret court. At the time Judge Roberston resigned from FISC, once associate was quoted in the Washington Post that some judges thought FISC seemed like a "Potemkin court."

Interestingly, Sen. Specter has hinted that he might explore the role of the FISC courts at the next round of Judicary Committee hearings.
2.8.2006 6:50pm
anonymous22:
The distinction I am grasping for is whether there has ever been such a court that oversees only and exclusively a traditional executive function.
2.8.2006 7:48pm
anonymous22:
I agree with what Just an Observer has written, by the way, about the limited power of the FISA court. I'm just not sure what can be done as far as oversight unless the veil of secrecy is lifted from the FISA court. I can see readily the futility in the concept of a secret court that is supposed to exercise strong oversight-- a judge is traditionally not supposed to sit as whistle-blower at large.
2.8.2006 7:55pm
Medis:
a22,

I think it is very important to start with the observation that the FISC and FISCR are NOT Article I courts. I suspect that the cases you are thinking of dealt with Article I courts, and a large part of the problem with such courts is that they typically do not follow all the Article III rules for judges (eg, lifetime tenure), and may not have the same jurisdictional limits as Article III courts.

In contrast, the FISC and FISCR are Article III courts, made up of Article III judges with lifetime tenure. Actions in the FISC and FISCR also automatically fall within Article III jurisdiction, since the United States is always a party.

Offhand, I don't seen any problem with Congress sharply limiting the subject matter jurisdiction of a particular Article III court. I also don't see a particular problem if that subject matter happens to be one where a "traditional executive function" is implicated. And again, the "administrative" courts issues you might be thinking of usually involve Article I courts, and the precise problem in that context is usually how much jurisdiction can be given to non-Article III courts, as opposed to how little jurisdiction could be given to an Article III court.

As for precedents for such Article III courts, as I noted, the only other such Article III court with limited subject matter jurisdiction that I know of is the Court of International Trade. And although the Court of International Trade covers a broader range of laws and agencies, I think its cases almost always involve the United States, an agency, or an officer as a party (except perhaps for cross-claims). So, I think it would be fair to say the Court of International Trade also deals with a (set of) traditional executive function(s).

So, the FISC and FISCR are not entirely unique, although certainly the more normal practice is just to dump all Article III matters on the District Courts.
2.8.2006 9:08pm
Noah Klein (mail):
Good news everyone,

Senator Specter has proposed legislation that would require a judicial review by the FISC. Thus the issue of standing is no longer a question and the judiciary can take look at this issue and make a determination.

More good news,

The administration has agreed to inform the House Intelligence Committee about the program. They obviously have done this because the argument that while hundreds of administration officials know about this program informing less than 40 legislators about the program would lead to leaks is ridiculous on its face. They probably picked the House because they thought the House would be an easier forum than the Senate. I hope the House proves them wrong.

Both of these stories came from ABC News

Noah
2.8.2006 9:56pm