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The FISA Court and the NSA Surveillance Program:
The Thursday Washington Post has a must-read story on how the FISA court has dealt with the NSA domestic surveillance program. The whole story is worth reading, but here are the key excerpts:
  Both [chief judges of the FISA Court, Colleen Kollar-Kotelly and her predecessor Royce C. Lamberth,] expressed concern to senior officials that the president's program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions. Yet the judges believed they did not have the authority to rule on the president's power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process.
  . . . Both presiding judges agreed not to disclose the secret program to the 10 other FISA judges, who routinely handled some of the government's most highly classified secrets.
  So early in 2002, the wary court and government lawyers developed a compromise. Any case in which the government listened to someone's calls without a warrant, and later developed information to seek a FISA warrant for that same suspect, was to be carefully "tagged" as having involved some NSA information. Generally, there were fewer than 10 cases each year, the sources said.
  According to government officials familiar with the program, the presiding FISA judges insisted that information obtained through NSA surveillance not form the basis for obtaining a warrant and that, instead, independently gathered information provide the justification for FISA monitoring in such cases. They also insisted that these cases be presented only to the presiding judge.
  Lamberth and Kollar-Kotelly derived significant comfort from the trust they had in Baker, the government's liaison to the FISA court. He was a stickler-for-rules career lawyer steeped in foreign intelligence law, and had served as deputy director of the office before becoming the chief in 2001.
  Baker also had privately expressed hesitation to his bosses about whether the domestic spying program conflicted with the FISA law, a government official said. Justice higher-ups viewed him as suspect, but they also recognized that he had the judges' confidence and kept him in the pivotal position of obtaining warrants to spy on possible terrorists.
  Very interesting stuff. Incidentally, the question of the FISA Court's authority under existing law to address the legality of the NSA program turns out to be a very interesting issue. I hope to blog more about it soon.

  The tail end of the Post story suggests sourcing from judges on the FISA Court itself, and strongly hints that none of the FISA judges are likely to invite Alberto Gonzales to dinner any time soon. An excerpt:
  Shortly after the warrantless eavesdropping program began, then-NSA Director Michael V. Hayden and Ashcroft made clear in private meetings that the president wanted to detect possible terrorist activity before another attack. They also made clear that, in such a broad hunt for suspicious patterns and activities, the government could never meet the FISA court's probable-cause requirement, government officials said.
  So it confused the FISA court judges when, in their recent public defense of the program, Hayden and Attorney General Alberto R. Gonzales insisted that NSA analysts do not listen to calls unless they have a reasonable belief that someone with a known link to terrorism is on one end of the call. At a hearing Monday, Gonzales told the Senate Judiciary Committee that the "reasonable belief" standard is merely the "probable cause" standard by another name.
  Several FISA judges said they also remain puzzled by Bush's assertion that the court was not "agile" or "nimble" enough to help catch terrorists. The court had routinely approved emergency wiretaps 72 hours after they had begun, as FISA allows, and the court's actions in the days after the Sept. 11 attacks suggested that its judges were hardly unsympathetic to the needs of their nation at war.
  Ouch.
Tom Holsinger (mail):
Professor Kerr,

If you believe what the Post prints because the Post printed it, I will take out an ad there telling you to give me all your money.

The FISA court was rebuked by its reviewing court on appeal by the government precisely because it put up unnecessary obstacles, in particular by being picky about its standards for issuing warrants.

The FISA court lost the confidence of the Executive.

The probable cause requirement simply cannot work when America is a combat zone. FISA is fatally flawed in concept as well as being obsoleted by technology.

Judicial persistence in infringing on the executive's core responsibilities will result in more than resistance - the judicial branch risks its independence. Which is a good thing IMO. If they want to be legislators and executives, they should run for election.
2.9.2006 12:33am
Medis:
I'll look forward to Orin's comments on the FISC's authority, and I would suggest any speculation about possible legislative modifications would be welcome.

Anyway, I also remain puzzled about the probable cause issue, but there might be a simple explanation: if probable cause for "this program" is established using evidence derived from some other, unconfirmed program which would itself violate FISA, then the Administration would run into the problems getting FISC orders as discussed in the main part of this article.
2.9.2006 12:33am
John (mail):
72 hours--threee DAYS!--for an "emergency"? Yeah, that would have stopped the guys getting on the planes on September 11.

Sheesh.
2.9.2006 12:38am
Justice Fuller:
Tom Holsinger,

Brilliant parody of a right-wing nut who can't keep his arguments straight! Attack the press, attack the law, attack the judges, assume your conclusion -- genius, man, genius.
2.9.2006 12:42am
Steve:
72 hours—threee DAYS!—for an "emergency"? Yeah, that would have stopped the guys getting on the planes on September 11.

Sheesh.


You misread the article. It does not say the court approved wiretaps 72 hours after an application was made. It says, consistent with FISA, that the court approved wiretaps within 72 hours after the wiretaps began. In other words, FISA allows the government, in an emergency situation, to start wiretapping without a warrant and seek FISA review within 72 hours.
2.9.2006 12:49am
Defending the Indefensible:
Justice Fuller,

Especially classic is the part where he says that the court has better not exercise any judicial authority if it wants judicial independence in the future.

We have some good comedians writing for the VC comment forum.
2.9.2006 12:54am
ron (mail):
If that is the "compromise" the judges made, they need to resign right now. They put trust entirely in the DOJ's hands to use the warrantless searches to not create "independent source" evidence. With such a compromise, they compromised themselves, the constitution and the legal process. Unbelieveable.
2.9.2006 1:01am
Medis:
We need a FISA FAQ.
2.9.2006 1:02am
Julian:
(1) Wow.

(2) Who is leaking this stuff?
2.9.2006 1:04am
Defending the Indefensible:
Ron,

I think courts routinely have to trust prosecutors not to deceive them when seeking warrants. There is no judicial bureau of investigations to check out whether the specific facts articulated in the warrant application are truthful. It seems they tried to make the best of a bad situation, putting DoJ on honor not to corrupt its warrant applications with fruit from the poisoned tree.
2.9.2006 1:04am
Noah Klein (mail):
Ron,

I don't see what your objection to the compromise is. They told the administration that in their opinion it was unconstitutional, but they did have the power to do anything without a case being brought in front of them. Furthermore, they upheld the sanctity of their court, by saying that no warrant request brought before them could include this tainted evidence.

Medis,

I wholeheartingly agree. This would eliminate a whole lot of arguments that go on on this blog.

Noah
2.9.2006 1:08am
Kovarsky (mail):
Tom, do you love the smell of napalmb in the morning?
2.9.2006 1:15am
Kovarsky (mail):
Under what doctrine would the law governing the jurisdiction granting mechanism even reside? Would some of it perhaps be in any doctrine governing the expedited review provisions in things like McCain-Feingold?
2.9.2006 1:17am
ron (mail):
DTI: Not about seeking warrants, but using warrantless searches to obtain ultimately "independent source" evidence. Ease of creating independent source once you have information obtained illegally. Court thinks this is an antidote to the poisonous tree. I don't.
2.9.2006 1:18am
Medis:
Kovarsky,

I'm not sure I understand your question, but the only general limit on granting jurisdiction to the federal courts is Article III of the Constitution.
2.9.2006 1:33am
Kovarsky (mail):
Medis

It's a Liars Paradox question that I inadvertantly left half the post off of -

I don't understand how FISC could adjudicate the constitutionality of the statute that creates its authority in the first place.

Is there any precedent for that? If FISC can indeed adjudicate constitutional issues, and it adjudicates FISA to be unconstitutional, then it seems there has to be some alternate jurisdictional grant, no?
2.9.2006 1:44am
Medis:
Kovarsky,

I have this vague recollection that some court--I want to say a colonial court in Virginia, but I could be completely off--once met for the express purpose of holding that they were not legally constituted, and they then disbanded themselves.

Anyway, I don't think the issue would arise, because I don't think the President would actually push a facial challenge to all of FISA (although who knows?). Rather, I think it would be an "as applied" challenge, in which case the portion of FISA creating the FISC would remain intact.
2.9.2006 1:53am
anonymous22:
I am trying in my posts to make a case for the uniqueness of this FISA court and argue that it is a constitutional monstrosity with no precedent and should be afforded no legitimacy.

The idea of a secret court is troubling to me, even if Congress has deemed it an "Article III court." From what I read the FISA court was impotent, invested with minimal power and checked by minimal oversight. I have emphasized over and over again that did not function as we expect courts to function; it had no interaction at all with the public and was operated out of the executive branch. It did not try "cases and controversies," it merely checked whether the warrants were kosher and whether the President was complying with Congress's will. I can understand why the President thought it was so useless as to bypass it. Furthermore, there is no precedent in Anglo-American law that I am aware of for secret judges operating a secret court.

Frankly I think the FISA court is a constitutional monstrosity that threatens the reputation of the judiciary. These judges are tasked with the sole function of carrying out Congress's will, but they are given no oversight so their power is arbitrary. It is, as one other poster put it, a Potemkin court, a sham. It is an internal administrative branch dressed up as a court.
2.9.2006 1:54am
Defending the Indefensible:
Ron,

See how much more difficult things become when first you eat the fruit from the tree of knowledge of good and evil? For having improper knowledge, warrants are tainted and prosecutions become impossible.

Only the president of the FISA court had any idea what was going on, so to demand the entire FISA court resign is a little bit much to ask. I think however that the compromise they tried to make was for DOJ and NSA to establish a firewall that could salvage the warrant process. It may have been a fool's errand and impossible to achieve. But what alternative did they have? Disclosure was impossible, even to the rest of the FISA court. If the presiding judge had merely recused it would have let the administration work a fraud on the rest of their court. It was a classic catch-22.

Sure, in hindsight we might be able to think of something, but judges are human and they make mistakes, that's why we have appeals after all. Unfortunately the poison has worked its way into the system in ways we don't fully know yet, even if it was incidentally part of the Iyman Faris case he might get evidence suppressed leading to a reversal, and how many other prosecutions have been rendered impossible we don't know. So the net effect is that maybe we have a little bit more information about what some people might be up to, but can't do anything to them unless we lock them up in military custody as enemy combatants and deny them habeas corpus. Which, frighteningly enough, is precisely the alternative the administration has asserted in the Padilla case until recently.

It's a bad situation and it gets worse until it gets better. The poison can kill the body unless it gets sucked out in time or an antidote administered. FISC was trying to do the first, it didn't work, so now we have to figure out how to do the second.
2.9.2006 1:59am
Noah Klein (mail):
A22,

I don't see what your objection to the court is. It's not part of the executive. Its members are judges appointed by the Chief Justice and are thus independent of the executive branch. Medis has pointed out numerous times that this court is not without precedent.

It is not completely impotent and useless. It approves the warrants the administration offers for foreign intelligence and it performs a very important role of check on the executive ability to surveil U.S. persons.

And finally, it performs the function that courts have performed in this country for centuries. This is very important function, because without such a check the government could go carte blanche. As to the Potemkin court reference, it was quoted from the judge who resigned from the court, because the administration ignored the law and the court. It would not be a Potemkin court, if the administration would follow the law.

Noah
2.9.2006 2:08am
Kovarsky (mail):
A22,

You are confusing the concept of a secret court with the concept of a court whose proceedings are classified.

Everybody knows that FISC exists, so it's not an objection grounded in a "secret court" whose jurisdiction is unknown. But once you acknowledge that, what you're talking about is relatively mundane and hardly outrageous. Article III courts consider materials under seal all the time.
2.9.2006 2:09am
Medis:
a22,

I think if you break down your objections one by one, they end up not being a significant problem.

First, you note the FISC has "minimal power". But it does have the power to enforce a federal law, and that is all it needs to have Article III jurisdiction (in addition to the fact that the United States was a party).

Second, you say the FISC is checked by "minimal oversight". That is actually somewhat false: the FISC could be reviewed by the FISCR, which in turn could be reviewed by the Supreme Court.

Third, you note it does not interact with the public and was secret. First, it is not true that the existence of the court and its judges was secret. But it does have closed proceedings. However, Article III courts do the same thing in certain circumstances. The difference is therefore not that the FISC has closed proceedings, but rather that it doesn't do anything else. But that is really just an organizational chart issue, since the FISC judges also sit as normal District Court judges.

Fourth, you say the FISC is operated out of the executive branch. Actually, that is just false--again, these are Article III judges, and they don't take commands from the President.

Fifth, you say they do not try "cases and controversies", but just adjudicate warrants. But again, adjudicating warrants is part of the normal business of courts. And although such proceedings are ex parte, I believe the idea is that the target of the warrant is considered adverse to the government.

Finally, you say their sole function is "carrying out Congress's will." That is also false. Their function is to apply a federal law, but they don't take commands from Congress. And once again, this is just what District Courts do when applying federal law.

Generally, I think you are simply misstating the role of the FISC. They don't work for Congress and they don't work in the Executive Branch. Rather, the FISC is part of the judicial branch, and it carries out the sorts of tasks the federal courts have always carried out. Indeed, the only real distinction between the FISC and the District Courts is that the FISC doesn't do as much as the District Courts--and even that isn't true on a judge by judge basis.
2.9.2006 2:13am
Just an Observer:
A22,

I don't go so far as to agree with your characterization that the FISA courts are a "constitutional monstrosity with no precedent and should be afforded no legitimacy." The warrants they issue are valid.

But, as you know from our previous exchange, I do think it may be dangerously bad policy to configure the courts the way they are, because the judges are crippled. As the Post narrative shows, that is part of the reason we got into the current mess: "Yet the judges believed they did not have the authority to rule on the president's power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process."

I would be more comfortable if the same judges were assigned to sit in camera, and with clearance to read each other's secret cases, but in their full capacity as District Court judges.
2.9.2006 2:20am
Just an Observer:
Remember the thread a few days ago when we wondered how much James Baker really knew about the warrantless surveillance program when he testified in Congress about the DeWine bill to amend FISA?

One fact that comes through this Washington Post story is that Baker apparently knew all about the family jewels.
2.9.2006 2:35am
Tom Holsinger (mail):
Just An Observer is correct that one of FISA's many problems is over-compartmentalization. No one of the its judges is allowed to see all of the elephant.

But, IMO, there are no solutions due to FISA's underlying assumptions being outright false. We're at war at home. The probable cause requirement for warrants CAN'T be made to work in this situation - the only threat the probable cause requirement can cope with is peacetime espionage.

Not to mention FISA being obsolete just due to technological changes. Its distinction between the locations of intercepts, and the distinction between domestic and foreign communications, are utterly inane given digital as opposed to analog communications. It is necessary to open a given digital message just to find out its points of origin and destination.

The only functions FISA serves today are to impede national security and provide partisan grandstanding opportunities. It does not protect the freedom of Americans because its probable cause procedures are so cumbersome that the Executive branch is driven to bypassing it in favor of its inherent constitutional authority.

FISA needs a complete rewrite. Anything less is just rearranging deck chairs on the Titanic.
2.9.2006 2:49am
minnie:
I am baffled at how calm everyone is about these new revelations. Am I reading this article wrong? Essentially I interpret it to mean that there could have been millions of domestic to domestic communications intercepted by the NSA, and EVERY ONE OF THOSE EXCEPT TEN yielded nothing to do with national security (but they sure must have yielded a whole lot of other stuff that went into who knows who's hands for who knows what reason) and it was such a secret program that very top officials in the intelligence community were kept out of the loop?

Then step two is, okay, some "suspects" hit the radar screen, but OUR GOVERNMENT cannot get a warrant from OUR GOVERNMENT because the fruit is poisoned, so additional nefarious, unauthorized either by law or the Constitution means have to be devised to get more information on these "suspects" (search their homes without warrants? Open up all their mail? What?)to get more information.

What if those means include merely snatching them and shipping them off to some secret detainee camp and torturing them? What if they are in fact innocent? What if they are guilty of nothing more than being someone young and non-dangerous with some time on his hands who has an active imagination and is looking for a cause?

If the people on this blog were spirited off never to be heard from again, someone would miss them, someone would call the police, the press would be notified, it wouldn't pass unnoticed. But a lonely immigrant who doesn't speak the language and has no circle of support wouldn't be missed, would he? And if he is Islamic, opinion in this country has been so poisoned against Islamics that few would care.

What if they torture an innocent person by mistake? And don't want to then let him go, because the last thing they want is for him to go blabbing to some sympathetic investigative reporter? What do they do then? Kill him?

I am shocked at the complacency of some of the posters on this site whom I really respect and whose posts I always read with interest.

PS. I made my $50 donation (the most permittable on Amazon) to this site today, and encourage every one to do the same. It really is invaluable. I intend to donate frequently.

Finally, are you the Tom Holsinger whose father was an assistant to someone in government on an intelligence committee? The one who wrote the article in 2002 "The War in Iraq has already begun"? Please respond to that question.
2.9.2006 2:58am
anonymous22:
I am exagerrating somewhat, but I do think there is a real problem with the FISA court. The FISA court could open its proceedings to the public, or at least reveal to the public something other than its mere existence-- but it doesn't. It could do things other than enforce FISA (a law which reflects the wishes of Congress)-- but it doesn't. It could try actual cases-- but it doesn't. It could operate somewhere besides the executive branch-- but it doesn't. Its rulings could be checked/reviewed by other courts-- but they aren't. It could be given power to enforce its judgments-- but it hasn't been given any. And on and on.
2.9.2006 3:17am
Kovarsky (mail):
Anonymous,

You have been told several time sthat FISA is an article III court and that, while it frequently deals with the administration, it does not "work for the executive granch."

Also, I don't think FISA's secrecy protocols are elective.
2.9.2006 3:23am
Charlie (Colorado) (mail):

I am baffled at how calm everyone is about these new revelations. Am I reading this article wrong? Essentially I interpret it to mean that there could have been millions of domestic to domestic communications intercepted by the NSA, and EVERY ONE OF THOSE EXCEPT TEN yielded nothing to do with national security (but they sure must have yielded a whole lot of other stuff that went into who knows who's hands for who knows what reason) and it was such a secret program that very top officials in the intelligence community were kept out of the loop?


Golly, Minnie, if you're going to set your hair on fire, why stop with "millions"? How about billions? Not to mention how they could be intercepting all mail and reading it. Oh, and they could be making all the banks pay them their roundoff errors to finance the program off the books. In order to provide the information to the Bilderbergers, who in turn convey it to their alien overlords who live inside the hollow Earth?

Obvious hyperbole (God, I hope it's obvious hyperbole!) but once you start assuming things you don't know, why stop with one?

Oh, and it's standard practice that large numbers of top officials don't know about particular programs. It's called "special compartmented intelligence" (SCI) because there are "compartments" for people who know parts of the details. That makes it harder for whole programs to be blown.
2.9.2006 3:34am
Charlie (Colorado) (mail):
Orin, I'm not getting the "ouch". Gonzales already says they were sending stuff up to FISA when they thought it was appropriate, and I don't know that I've heard anyone with knowledge of the program suggest that FISA court delays were the problem --- but that preparing the materials to go to the court was lengthy and complicated, which was a problem.
2.9.2006 3:41am
Noah Klein (mail):
Charlie,

That is a pretty pathetic reason to go around a court designed to check the executive, which in the past showed that it could not be trusted to conduct warrantless wiretaps for foreign intelligence purposes. Congress already extended the time that the administration needed to get a retroactive warrant from 24 hours to 72 hours. I am sure that if the administration needed more time on top of that then Congress would gladly have extended the time. Gonzales answer to the Senators that the program followed a probable cause standard but avoided the FISA was not only pathetic, but also insulting. This is why we see in the Washington Post reporting that the presiding judges were informed that the administration was applying a lesser standard.

Noah
2.9.2006 3:53am
Apodaca:
Tom Holsinger endlessly claims that
The probable cause requirement simply cannot work when America is a combat zone.
[...]
We're at war at home. The probable cause requirement for warrants CAN'T be made to work in this situation
What's worse, nobody seems to understand this. I see children playing in the parks; shops selling plentiful goods; planes, trucks, trains, and ships plying the usual routes of commerce; a diverse press, and a working communications infrastructure to support it; and a court system open and functioning at every level of government. Parlous times, indeed, when all these fools -- millions of them! -- can go about their daily business so blind to the carnage that surrounds them.
2.9.2006 5:45am
George Gregg (mail):
Apodaca, I was going to make a similar comment.

If "the probable cause requirement simply cannot work when America is a combat zone"

...and...

"We're at war at home. The probable cause requirement for warrants CAN'T be made to work in this situation."

...and...

Considering that Al Qaeda has metamorphosed and splintered into several other terrorist cells which couldn't really ever be completely extinguished, we can probably assume that we will always have SOME degree of terrorist threat on our own soil.

Then:

We're pretty much in an eternal war against the forces of darkness, justifying the Executive to perpetually ignore probable cause for issuance of warrants, aren't we? Isnt' that the obvious conclusion of apologists for Executive plenary powers during wartime?

On that note, I'm wondering why I'm not hearing the nine church burnings in Alabama being called "Terrorism", so much. Plenty of "arson" and "hate crime", though. Perhaps if the Feds called it terrorism, they could apply this NSA surveillance program to the citizens of Al Abama to track down those evildoers.

I'm sure those folks who have nothing to hide won't mind us bugging their homes and tapping their phone conversations without probable cause and without a warrant. After all, "the Constitution is only a piece of paper".
2.9.2006 6:19am
Eric Muller (www):
Orin, when the President speaks of the FISA judges as not being "agile" or "nimble" enough, he's speaking with the authority on agility and nimbleness of a man who regularly falls off his bicycle.
2.9.2006 7:10am
Eric Muller (www):
Tom Holsinger, you say that "the probable cause requirement simply cannot work when America is a combat zone."

If this is true for probable cause to support a search, is it also true for probable cause to arrest?

Was the arrest of an American citizen of Japanese ancestry in Los Angeles or Seattle or San Francisco in March of 1942--without probable cause--justified?
2.9.2006 7:29am
davod (mail):
It is my understanding that the 72 hour rule is so that Justice (The Attorney General) can approve the action then he has 72 hours to get the paperwork before the FISA Court. If the court decides the application does not meet its standards then the process stops and all information gathered cannot be used moving forward.
2.9.2006 7:36am
Medis:
a22,

With all due respect, you keep basing your argument on premises that we have already explained are false.

The bottomline is that the FISC doesn't really do anything that the District Courts don't already do. And, in fact, the FISC judges are also District Court judges. So, really, the FISC is actually just a different "hat" that these judges sometimes wear.

Of course, there may be problems with the substantive law in question--it may be too deferential to the government, or vice-versa. But objections to the law should be kept separate from objections to the existence of a court applying that law--and again, that court is really just a certain role being played by District Court judges.

davod,

Correct, but according to the Attorney General's testimony that should not be a problem, because they do in fact have probable cause before they start surveillance. So, the Attorney General can give the order, and then their application should be approved by the FISC.

The AG's explanation of this discrepancy--that we need to be more "agile"--is empty of actual content. I think a good bet is that the real explanation would involve other, unconfirmed, programs without probable cause that might occur prior to this program, but honestly we don't know. What we do know is that what we have been told does not add up.
2.9.2006 8:28am
Huggy (mail):
The problem is that FUD is being spread. FISA, NSA, WH are all hunkering down. This is a political battle.
The Democratic party and its minions have mistakenly aligned themselves with groups that want to lessen or destroy the influence of the US. By being unreasonable the Democrats and their supporters are marginalizing themselves.
2006 is going to be like 1994. The Democrats are going to lose big. They have forgotten the fundamentals of winning elections.
2.9.2006 8:31am
Medis:
Huggy,

I assume you are including among the Democrat's "minions" at least four Republican Senators on the Judiciary Committee.
2.9.2006 9:06am
alkali (mail) (www):
Baker also had privately expressed hesitation to his bosses about whether the domestic spying program conflicted with the FISA law, a government official said.

"Mr. Simpson also had privately expressed hesitation to his friend Mr. Cowlings about whether his recent interactions with his ex-wife conflicted with certain provisions of the California penal code."
2.9.2006 9:09am
Just an Observer:
Medis,

You say, "And, in fact, the FISC judges are also District Court judges. So, really, the FISC is actually just a different 'hat' that these judges sometimes wear." That much I certainly agree with.

Are you sure that when they put on the FISC hat they retain all the authority they have when wearing the District Court hat? My impression from reading the Post stories is that the chief judges have not construed it that way. I could be wrong.

Let me pose the question this way: The chief FISC judge was informed -- "briefed," we are told -- by the government that warrantless surveillance was going on by the President's order despite the "exclusive means" provision of the statute, and the judge reportedly thought that might be unlawful. Compare this to a hypothetical where a District Court chief judge is informed by the U.S. attorney that warrantless wiretapping in Title III cases is going on in terrorism cases by the President's order, and the attorney general had determined that such warrants were no longer required.

Are these two judges equally powerless to stop the practice or rule on its legality? My impression was that the FISC judges felt they were authorized to perform only the functions assigned to them by the FISA statute, which duties are narrowly circumscribed.
2.9.2006 9:54am
Some Guy:
Tom Holsinger--

FISA might need amendment, but is this really the way to go about it? The administration would then be making a big gamble--betting that FISA is so antiquated as to not even apply meaningfully to their actions. Just seems like awfully risky behavior to me. Protests that amending FISA would reveal secrets to the enemy seem a bit empty--it just means that this is an argument they never wanted to have, because they didn't want to go head-to-head with Congress about constitutional jurisdiction.

a22--

I still tend to think that the FISA court is simply there in order to judge the constitutionality (it turns out) of the executive's actions. It's not about the constitutionality of FISA itself. The legislative requirement is that the administration needs to submit a case for review by the court whenever it's surveillance involving domestic persons and terrorist organizations. The court order is just the court's determination that the administration is acting correctly, i.e. within its powers. I think this might need some clarification, and it's admittedly a funny way of exercising oversight, but I think substantially it's in order.
2.9.2006 10:14am
A.S.:
I think Charlie (Colorado) gets it exactly right. The problem is not with the FISA judges themselves, nor with the length of the 72-hour limit. The clock could be 72 hours or 72 days; that doesn't matter. The problem is all the work needed before the clock even starts ticking.

I'm not sure why people can't understand this.

The procedure for obtaining a FISA warrant is the following:
1) Figure out that you want to surveil someone. (Note: the NSA CANNOT BEGIN SURVEILLANCE at this stage.)
2) Get all the paperwork together necessary for the Attorney General to make a decision that the FISA court would likely grant the warrant
3) The Attorney General reads that paperwork and makes his decision
4) THEN AND ONLY THEN does the surveillance begin.
5) The paperwork is presented to the FISA court
6) The FISA court reviews the paperwork and, within 72 hours of stage 5, grants the warrant.

It is stage 2 than causes the delay, not stage 6. And the problem is that stage 2 requires sufficient paperwork so that the Attorney General, at stage 3, believes that the FISA court will (in stage 6) grant the warrant.
2.9.2006 10:22am
A.S.:
Orin, when the President speaks of the FISA judges as not being "agile" or "nimble" enough, he's speaking with the authority on agility and nimbleness of a man who regularly falls off his bicycle.

Wow, that's some brilliant legal analysis by noted law professor Eric Muller.

Is it too much to ask from law profesors to avoid ad hominem attacks? Apparently not.

How pathetic.
2.9.2006 10:25am
Medis:
JaO,

I actually don't really know enough about how District Courts deal with warrants to answer your question. But offhand, I'm not sure what power a District Court would have in a similar case that the FISC does not. The District Court could exclude the evidence and deny the warrant application, which the FISC apparently has done. If an AUSA lied to the Court about the source of the evidence, I suppose they would be subject to contempt, but for all I know the FISC could do that too.

But I don't think the District Court would have, say, a sua sponte power to enjoin the program. For that sort of action, I would think they would need some party with standing to bring a facial challenge under some applicable law. And although the FISC probably doesn't have the jurisdiction to hear such a case, I don't see why the District Courts would not as it stands.

Of course, in practice, AUSAs make a point of not angering their local District Court judges, which is a good idea since those judges may end up trying their cases. That is indeed an informal difference between the District Courts and the FISC. Still, the FISC has a similar, if more limited, informal position insofar as it will also hear future FISA applications. And indeed, it seems to me part of the dynamic in this case involved the FISC reminding the Administration of this fact.

So, I'm not sure that within the limits of the subject matter, the FISC is really in a much worse position than a District Court would be. But perhaps someone with greater familiarity with this topic can correct my assumptions.
2.9.2006 10:36am
Medis:
A.S.,

Why do you think steps (2) and (3) necessarily involve paperwork? I don't see anything in FISA which says an officer in the NSA can't get the AG on the phone, state his evidence verbally, and then get a verbal order from the AG. In fact, all FISA says is that the AG has to "reasonably determine[] that . . . the factual basis for issuance of an order under this subchapter to approve such surveillance exists." So, I don't see why a verbal exchange could not satisfy this condition.
2.9.2006 10:41am
Apodaca:
A.S. claims:
And the problem is that stage 2 requires sufficient paperwork
So you are certain that such requests are never made or approved orally? Interesting.

Also interesting is Jim Baker's 2002 testimony that the emergency provision of FISA works just fine.

Can you please explain why your knowledge of the process is superior to that of the government's chief advocate before the FISA Court?
2.9.2006 10:45am
Just an Observer:
Medis,

In the hypothetical, which I am trying to make as parallel as possible to the FISC scenario, there is no warrant application before the District Court. Rather, the chief judge is informed ex parte that the government is conducting warrantless Title III wiretapping agaistn suspected terrorists on an ongoing basis.

I honestly don't know enough to be sure, either, but it is hard to believe the District Court judge must suborn such practices, which on their face seem to violate criminal law, just because there is no case before him.
2.9.2006 10:48am
Medis:
JaO,

In some sense, actually, that already happened, since the FISC Chief Judges are also District Court judges. I strongly suspect the Article III standing requirements prevent a federal judge from doing anything in such a situation.
2.9.2006 10:59am
Tom Holsinger (mail):
Some Guy,

IMO we need a complete replacement for FISA because I don't trust the feds (executive branch overall, not merely whoever comprises the current administration) not to abuse the power provided by warrantless surveillance. I remain familiar with the abuses which brought on FISA, in particular the Nixonian abuses. The feds will always abuse their power if they can.

I am not saying that the Bush administration wants an amended FISA. I said earlier that the current lack of effective oversight created by FISA being unworkable is just fine with them - that maximizes their discretion in performing warrantless domestic surveillance under the President's inherent constitutional power.

Those who do not understand how the probable cause requirement is incompatible with the needs created by America being a zone of operations don't want to, and never will. It's a paradigm issue - they do not understand the concept of "war".
2.9.2006 11:07am
A.S.:
Medis and Apodaca:

Well, I am no expert in the the process - I just know what I've read from the same sources available to everyone else. I read somewhere (don't recall where) that the info that goes to the AG for his decision must be all the information that would be required for the FISA court to make its decision. I would be quite surprised if that could all be done orally; I would likewsie be surprised if proper administrative procedures would allow a decision like that to be made on oral adivce.

I'm not sure what Baker's 2002 testimony said, can you link to it?
2.9.2006 11:15am
Just an Observer:
Medis,

I am not sure the criminal sanctions are the only avenue of redress in the hypothetical, but I don't see how they pose an issue of standing.

It may be that the criminalization of unauthorized wiretapping in both FISA and Title III is quite hollow as applied to federal prosecutors, who quite obviously cannot be expected to prosecute themselves or their superiors voluntarily. If law-enforcement officials can order facially illegal acts and brazenly inform the court of such acts with impunity, the system seems broken.
2.9.2006 11:19am
eddie (mail):
The probable cause requirement simply cannot work when America is a combat zone.

Let's get this straight: for the rest of the life of this country we are to completely abandon our system of government.

And you say that it is others who don't understand what a war is.

George Orwell was more than prescient. Once the "War on Terrorism" was accepted as a "war", peace ceased to exist as a concept: we shall always be at war with someone if the measure of a war is absolute certainty of no terrorist acts.

If we survived the Cold War, where the U.S. was no less a "field of action" without the trashing of the Constitution's checks and balances, why now, when the enemy is so diffuse as to be impossible to plainly delineate in any quantifiably significant manner (wait a minute is the enemy a state, a tribe, a religion? . . . oh no, its a technique) and victory (do we even want to win this war) can never be obtained (there will always be someone who doesn't like us and if they are crazy enough might pose a security risk), must we abandon the very prinicple the Founders were willing to die for.
2.9.2006 11:23am
Colin:
"Those who do not understand how the probable cause requirement is incompatible with the needs created by America being a zone of operations don't want to, and never will. It's a paradigm issue - they do not understand the concept of 'war'."

Perhaps they simply see more value in the ideal of liberty than you do?

It seems that there are some important question underlying your assumption that we are at "war," and that "war" trumps liberties. Where are we on that scale? Do we lose all our liberties, or only some? And when do we get them back? When terrorism is defeated? I haven't seen you attempt to answer those questions; do you know? Do you care? Are the questions themselves inappropriate in a time of war?

Assuming that people who disagree with you don't understand the issues is facile. It's more simple than that - many people simply don't take it on faith that the War on Terror requires the sacrifice of essential liberties. In fact, many people believe that the surest sign of defeat is to surrender those liberties. It's a different calculation of values, not a failure to understand the terms.
2.9.2006 11:33am
Eric Muller (www):
Tom Holsinger,
I asked you a question: "Was the arrest of an American citizen of Japanese ancestry in Los Angeles or Seattle or San Francisco in March of 1942--without probable cause--justified?"

You did not reply, but somewhat vaguely wrote this, which might be a kind of response: "Those who do not understand how the probable cause requirement is incompatible with the needs created by America being a zone of operations don't want to, and never will. It's a paradigm issue - they do not understand the concept of 'war'."

The West Coast was a zone of operations in March 1942. It was the Western Defense Command, led by Gen. John L. DeWitt.

So I ask you again: was General DeWitt's order requiring the arrest and deportation of 70,000 U.S. citizens without probable cause a justified order?
2.9.2006 11:44am
Jack John (mail):
Eric,

In what sense are you using the term "justified"?
2.9.2006 11:46am
DHBerger (mail):
I'm glad Professor Kerr noticed that Gonzales stated the program used a "probable cause" standard of proof, as this was for me the most interesting part of his testimony. As other commenters have noted, and Gonzales himself admitted, if this were the case (and the fact that Gonzales's testimony was not under oath leads me to question its credibility), then the only reason for the program is that FISA is too cumbersome. Then wouldn't the correct remedy be to AMEND FISA! It seems rather obvious that either this program or some other unknown program is using a far lower standard than probable cause. And keep in mind- and this is something that the MSM rarely mentions- the standard is probable cause to believe someone is associated with Al Qaeda, not that he is actively plotting a terrorist attack, which is not that high of a standard. Even so, it might be necessary to lower the standard to "reasonable suspicion"- but again this should be done through an amendment to FISA, not through some unaccountable secret program which is overseen not by apolitical judges, but by the President, Gonzales, and various other Executive Branch vested parties.

And I second eddie's concern about the open-ended nature of this "war", a very serious concern which I've seen no conservative commentator address. People on both sides must recognize that this is neither a law enforcement matter nor a conventional war, it is something in between, and therefore we need a new approach which takes this reality into account.
2.9.2006 11:56am
Eric Muller (www):
Jack John,
Let's start with this: was it legal?
2.9.2006 12:04pm
Charlie (Colorado) (mail):

That is a pretty pathetic reason to go around a court designed to check the executive, which in the past showed that it could not be trusted to conduct warrantless wiretaps for foreign intelligence purposes.


I think gravity is a pretty pathetic reason to keep me from leaving my place via the balcony, but I can't fly anyway.
2.9.2006 12:04pm
just wondering:
Eric asked:

Was the arrest of an American citizen of Japanese ancestry in Los Angeles or Seattle or San Francisco in March of 1942--without probable cause--justified?

General Dewitt imposed first a curfew affecting persons of Japanese ancestry, and then created an exclusion zone encompassing most of the west coast. I'm not sure which restriction was effective in March of 1942, but I suspect there was probable cause to believe that a Japanese person found in one of those cities was violating the restriction, a crime punishable pursuant to statute, simply by being there. So, justified? No. But probably on equal protection grounds rather than for lack of probable cause. FWIW.
2.9.2006 12:12pm
Medis:
JaO,

But the court could not initiate a criminal case against an AUSA. It is, of course, a serious problem if the prosecutors themselves are breaking the law, but the courts don't have a general remedy for that problem. Of course, this is the opposite side of the coin when it comes to the separation of powers--initiating criminal prosecutions is an executive power, and giving the power to the courts to sua sponte bring criminal prosecutions may be a cure worse than the disease.

A.S.,

As an aside--why would you be surprised that an emergency provision actually made sense as an emergency provision?

Anyway, the law creates a pretty weak requirement: the AG just has to "reasonably determine" that the "factual basis" for an order exists. You are basically assuming an unreasonable requirement into the law (that all the paperwork must be prepared first). Indeed, on that reading, what is the point of giving them another 72 hours to file the paperwork? Lots of spell-checking?
2.9.2006 12:13pm
Charlie (Colorado) (mail):
Eric, as I recall, Fred Korematsu's conviction was upheld, and only finally vacated for prosecutorial misconduct. So isn't the answer "yes, even if it was ill advised and wrong"?
2.9.2006 12:20pm
Jack John:
Eric,
Am I to take it that you think "legality" and "justification" are exactly the same thing?
2.9.2006 12:23pm
Charlie (Colorado) (mail):
Medis, I believe I recall an earlier thread where you and others were complaining that the known process wasn't followed. Are you now suggesting that it would be better if Gonzales didn't follow the known process?
2.9.2006 12:29pm
Kovarsky (mail):
Charlie,

No.

What makes you think that.
2.9.2006 12:43pm
Just an Observer:
Medis,

I see your point about a danger in sua sponte prosecutions. I guess the textbook remedy in that situation is a special counsel, just as the textbook remedy for the President might seem to be impeachment. In either case, the court does not initiate anything.

If there is really nothing a judge can do when informed in an ex parte briefing about potentially illegal acts, perhaps the judge should not be having the ex parte briefing in the first place. To an outside observer, this would appear to be a situation where the law and lawyers have failed.

Prof. Kerr indicated that he was researching the general issue of what authority FISC judges possess. I look forward to reading his conclusions, which I expect will be much more informed than my own speculation.
2.9.2006 12:45pm
Eric Muller (www):
Jack John,
No.
2.9.2006 12:58pm
Jack John (mail):
Eric,
Then I repeat my question: in what sense are you using the term "justifiable"?
2.9.2006 1:02pm
Eric Muller (www):
Just Wondering,
That's a dodge. The military never maintained that it had probable cause to believe that any specific Japanese American posed a security risk.
So the question comes back to Tom Holsinger: was it legal for the military in the Western Defense Command to arrest a U.S. citizen without probable cause to believe that he had committed a crime or posed a risk to security?
2.9.2006 1:04pm
Eric Muller (www):
Jack John, I am now asking about "legality," as I indicated earlier.
2.9.2006 1:05pm
Eric Muller (www):
The Supreme Court in Korematsu did not address any legal claim like the one Tom Holsinger appears to be advancing, and that I am trying to test, namely, that in a zone of operations the military may effect arrests of U.S. citizens without probable cause.

(In fairness to Mr. Holsinger, I note that he's actually maintaining this proposition only as to probable cause to search; I am the one extending it to arrest.)
2.9.2006 1:10pm
Apodaca:
A.S., here's the relevant bit of Baker's testimony, with added emphasis:
One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISA's pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats. Again, we are grateful for the tools Congress provided us last fall for the fight against terrorism. Thank you.
(Courtesy of Glenn Greenwald's blog.)
2.9.2006 1:13pm
Just an Observer:
The interesting position of the FISC chief judges is coming under scrutiny from all sides. Hugh Hewitt, who generally has published defenses of Bush's NSA surveillance progam, had this to say on his blog today:

A necessary caution: The Post's account may be flawed or incomplete, but in the absence of additional details, here are the questions:

Does the appointment as Chief Judge carry with it the right to make deals with the DOJ regarding surveillance applications?

... The "deal" seems to me to asume that the president lacks the authority to order the NSA surveillance his government put into place, and also seems to arbitrarily burden the FISA process with a new procedural hurdle, one developed by one or two judges, never communicated to their colleagues on the FISC, and never reviewed by an appeals court.

... This is a very odd situation, and one which will be the focus of today's show. District Court Judges are not legislators, and they are not to fashion "compromises" that escape appellate review. While DOJ may have rightly feared angering the Chief Judge, the Department's acquiesence undermines its arguments concerning the NSA program that the president has the authority to conduct the program by hinting at a reluctance to test that authority via an appeal of a denied FISA application that rested on intelligence obtained by warrantless surveillance.


Which appeal, I would add, the DOJ desperately wanted to avoid and still does.
2.9.2006 1:27pm
Medis:
Charlie,

I'm not sure I understand your question. But if this helps: I think the Administration should be following the FISA procedures. And given what the AG has claimed about having probable cause, it is somewhat puzzling why they did not follow those procedures--although there are some obvious possibilities, including with respect to how they go about establishing probable cause for "this program" (the confirmed one) in the first place.

JaO,

It may be worth remebering that these FISC Chief Judges were selected by Chief Judge Rehnquist, and probably were not a series of anti-government firebrands. So, I suspect if they did err in this case, it was on the side of the government. That said, it is not outside of the normal practice of judges to craft evidentiary rules. And if the government was content to follow those rules and not challenge them on review, then it is not really the job of the court to force them into doing so.
2.9.2006 1:53pm
Tom Holsinger (mail):
My issue with a President's inherent constitutional power to conduct warrantless domestic surveillance in this war is the absence of oversight. That creates a temptation to use the information gatherered for domestic political purposes, and even private purposes. Furthermore the warrantless surveillance can be used as an instrument of intimidation for private and domestic political purposes. These abuses were present during the Nixon administration and were one of the driving factors behind FISA.

FISA's problem here is, as Andrew McCarthy at National Review noted, warrant requirements envisage criminal prosecution as opposed to pubblic safety. He made a proper analogy to warrantless traffic stops for vehicle safety checks, where the police do not have to ignore any criminal violations in plain sight (open containers of alcoholic beverages, etc.).

Ultimate criminal prosecution is not the purpose of conducting electronic surveillance for national security purposes in this war. Public safety is the purpose. This makes the probable cause requirement for issuing warrants inane.

"... the presiding FISA judges insisted that information obtained through NSA surveillance not form the basis for obtaining a warrant and that, instead, independently gathered information provide the justification for FISA monitoring in such cases ..."


FISA's requirement that warrants be obtained for domestic surveillance is not merely irrelevant to public safety, but operates as a hindrance given the need for speed.

I will say this only once - the issue here is the time and effort required to prepare a warrant application, not the time for a FISA judge to review it. The FISA review court decision showed how the FISA judges were being so unlawfully picky in their demands for supporting information that they delayed and eterred warrant applications.

This reveiw court decision (the link was posted in another thread but I don't have it anymore - Medis correctly states that we need a FISA FAQ on this board, which IMO should include this link) shows what a ludicrous puff piece the Washington Post article above is, and how Professor Kerr erred in believing it.

The Executive branch genuinely needs the inherent constitutional power it has to conduct warrantless surveillance of domestic electronic communications for national security purposes given that America is a battlefield. I'd outright ditch FISA and its warrant requirement. But the Executive branch's use of this power should be subject to effective oversight.

That to me means that records of all its domestic surveillance should be created and held in repository beyond the Executive branch's control (so it can't disappear inconvenient records). I propose that this repository be under the Judicial branch's control, and that the Judicial branch be charged both with ensuring that it does receive those records, and also of ongoing analysis and organization of the records for use by Congress. This limited, albeit active, role would preserve the impartiality of the Judicial branch.

It would be up to Congress to periodically review the records of warrantless searches for abuses. IMO this is the real problem. Congress plain runs screaming from responsibility. That is a major reason why they want to shove all oversight responsibility onto the Judicial branch. And the Judicial branch simply can't do that without compromising its impartiality - the judicial system is fundamentally adversarial.

IMO we will be stuck for the forseeable future with the status quo, which is lots and lots of seeming compliance with FISA as it presently exists, while the Executive branch uses its inherent power to conduct secret warrantless domestic surveillance on anything it doesn't want the FISA judges, or anyone else, to know about.

This is a prescription for Nixonian abuse.
2.9.2006 1:54pm
just wondering:
Eric,
What am I dodging? Korematsu was arrested for violating a curfew that applied to all persons of Japanese ancestry within a specified military zone. The Court deferred to the military's judgment that all such persons should be presumed security risks since it was though too difficult to try to sort out the loyal from the disloyal (or so the government said). Anyway, elements of his "crime" were 1) being Japanese (or Japanese-American) and 2) being in an exclusion zone. I would suggest that the probable cause burden would not be too terribly difficult to meet. I suspect that's not your point, though. Sorry to be so obtuse.
2.9.2006 1:54pm
Tom Holsinger (mail):
Just An Obsever,

Given the Rasul decision, the Bush administration's desire not to submit national security disputes to judicial review is understandable. Wrong, but understandable.

The Bush administration has a major tendency to shy away from avoidable confrontations even when a more aggressive attitude is appropriate, or even necessary. IMO this is due to President Bush being a big government conservative. He and his senior political types clearly feel that political power is something finite, as opposed to something which is renewed by use. They do not understand that presidential power is rooted in a president's relationship with the public, IMO because the concept of the American people as an entity is foreign to them. This is THE major weakness of the Bush administration.
2.9.2006 2:05pm
A.S.:
Apodaca: thanks. But I'm not sure I see your point. Are you claiming that because Baker said the extension from 24-hours to 72 hours allowed them to "make full and effective use" of the emergency provision, that somehow shows that warrantless NSA program is unnecessary? I fail to see how you make that leap.
2.9.2006 2:18pm
Charlie (Colorado) (mail):
Eric, I'll grant that Fred Korematsu didn't raise a probable cause issue, but as "just wondering" points out, if it had been asked, I don't think esblishing probable cause to think Fred was of Japanese ancestry would be that tough. In any case, however, the notion that it could be legal to arrest Fred for being Japanese, in the OA, and out past curfew, but that people couldn't establish probable cause to think Fred was of Japanese ancestry by looking at him is what we non-lawyers call "looney."

Now, I'm not defending the internment --- I attend a Buddhist temple with those people, and was aware of the internment as a Bad Thing before, I suspect, you were born. (I certainly was hearing about it as a terible thing before 1960.) But you ask "is it legal?", and given the original Korematsu decision, and Hirabayashi, I don't think it's hard even for a nonlawyer to figure out that it apparently was.
2.9.2006 2:22pm
Tom Holsinger (mail):
Here is a link to the Findlaw version of the FISA review court decision. I found it on Hugh Hewitt's blog.

Professor Kerr, please add this link to the site as the first of a FISA FAQ.
2.9.2006 2:23pm
just wondering:
Actually, Charlie, Korematsu and Hirabayashi did not technically reach the legality of the internment program, instead upholding the convictions on the curfew/exclusion violations. Ex parte Endo invalidated the internment of "concededly loyal" U.S. citizens of Japanese descent.
2.9.2006 2:32pm
Jack John (mail):
To be legal, something need not be evaluated by the courts first. If the program was operating with the consent of two branches of government, and the program was never challenged in court, then the program was legal.
2.9.2006 2:40pm
Just an Observer:
Medis,

I see your point in defending the FISC judges against Hewitt's attack.

What interested me was the irony that Hewitt, in his zeal to skewer the judges, stumbled into the obvious fact that everybody -- neither the judges nor DOJ -- seemed to lack faith that the warrantless wiretaps were lawful.
2.9.2006 2:55pm
Just an Observer:
Oops. Make that read "everybody -- both the judges and DOJ" ...
2.9.2006 2:58pm
Jack John (mail):
JaO,
Where can I find Hewitt's attack? I assume we mean Hugh Hewitt. But I don't see it on his website.
2.9.2006 2:58pm
Jack John (mail):
Oh, nevermind!
2.9.2006 3:01pm
Tom Holsinger (mail):
JJ,

It's a two-parter.

Part One.

Part Two.
2.9.2006 3:02pm
Jack John (mail):
Ok...I don't see any irony in Hewitt's post. He makes a very simple point: the judge who has been hostile to the administration has:
1. Operated without any appellate review.
2. Crafted ad hoc rules without conferring with the whole court.
3. And handed down opinions in other controversial gray areas of the law in sharp contrast to her colleagues' opinions on the judiciary.

In sum, we have a nut on FISC, and we need to get the nut off of FISC.
2.9.2006 3:13pm
fred (mail):
A Question: Wasn't In Re Sealed Case about the fact that the FISA judges were getting needlessly upset about using informtion from NSA warrantless surveillance to get subsequent FISA Warrants?

Didn't the court in In Re Sealed Case say that this was not really a problem, and that the FISA court (and the Clinton administration) were making a bid deal about very little?

If so, what was today's Washington Post article about?
2.9.2006 3:44pm
Just an Observer:
fred,

In re Sealed Case had nothing to do with warrantless NSA surveillance. Presumably, the appelate judges in that case did not even know such surveillance was going on.

Rather, the case involved the question of how information derived from court-ordered FISA surveillance could also be used for criminal investigations.
2.9.2006 3:56pm
K Ashford (mail):
Let me ask a question to those who think the President's Commander-in-Chief powers give him the legal and constitutional ability to do end-runs around the Fourth Amendment.

My question is: Do those same powers allow him to circumvent the Second Amendment?

In other words, if Bush, as Commander-in-Chief and pursuant to the AUMF, ordered -- in the interests of national security -- the confiscation of all handguns in the United States, would you argue that he was legally and constitutionally on solid ground? (I understand you would object politically, but I'm asking about the constitutional issue).
2.9.2006 4:03pm
Jack John (mail):
K Ashford: No one here thinks the President has violated the Fourth Amendment. This is about violation, or lack thereof, of FISA.
2.9.2006 4:08pm
Jack John (mail):
But to answer your real question, K Ashford, the facts of this situation are nothing like the Steel Seizure Case.
2.9.2006 4:10pm
Tom Holsinger (mail):
Fred,

FISCR decision one was an appeal by the government from a ruling imposing conditions on the issuance of a FISA warrant. The government contended the conditions were improper, and the FISCR agreed.
2.9.2006 4:13pm
K Ashford (mail):
Jack John: I don't think I got an answer to my question.

Setting aside the issue of whether the Fourth Amendment OR FISA was violated, circumvented, whatever -- the rationale for the Bush's actions is that he was justified either as a result of his inherent powers as C-in-C and/or by virtue of the AUMF. Have I stated that correctly?

If that is the position, then I ask again: Doesn't that rationale allow this President, or any other sitting President fighting this "war", to remove all the handguns from the face of America (which would obviously run up against the 2nd Amendment)?
2.9.2006 4:20pm
Jack John (mail):

Doesn't that rationale allow this President, or any other sitting President fighting this "war", to remove all the handguns from the face of America (which would obviously run up against the 2nd Amendment)?



No. You seem to be ignoring the facts of this case which distinguish it from the Steel Seizure Case. The program -- a foreign intelligence-gathering program -- applies not to all Americans, but to foreign powers and agents of foreign powers or persons designated by the President under authority granted by AUMF as affiliates of Al-Qaeda. Were we talking about domestic wiretapping of ordinary Americans or indiscriminate seizing of all handguns, then that would be equivalent to trying to seize a steel mill. But that isn't what we're talking about here. Again, we're talking about FISA and a specific data-collection program, not any and all possible programs under any and all possible constitutional provisions in any and all possible worlds.
2.9.2006 4:25pm
Tom Holsinger (mail):
Fred,

I goofed. My memory was nagging at me so I reread the FISCR decision. The appeal was from the FISA court's ruling on a procedural rule the government wished to adopt, not a warrant.
2.9.2006 4:27pm
jrose:
Fred,

The conditions Tom H alludes to - and which the FISCR found to be improper, concerned the so-called "wall" between intelligence officals and law enforcement.
2.9.2006 4:34pm
jrose:
Ashford,

The President is not arguing he can violate the 2nd, 4th or any other part of the Constitution. He is arguing that he 1) either has exclusive inherent C-I-C authority or Congressional authority through AUMF+1809 (AUMF meeting 1809's authorizing statute requirement) and 2) he is not violating any part of the Constitution.
2.9.2006 4:41pm
Some Guy:
Tom--

"Those who do not understand how the probable cause requirement is incompatible with the needs created by America being a zone of operations don't want to, and never will. It's a paradigm issue - they do not understand the concept of 'war'."

Or maybe they understand it all too well. But havaing said that, in principle I'm happy to review and amend past legislation in order to provide for current needs and technologies. (Let's just agree that both the admin and Congress are behaving irresponsibly here, though in different ways)

"The Executive branch genuinely needs the inherent constitutional power it has to conduct warrantless surveillance of domestic electronic communications for national security purposes given that America is a battlefield."

Yes, but...

"I'd outright ditch FISA and its warrant requirement. But the Executive branch's use of this power should be subject to effective oversight."

Exactly. Oversight is needed. You've pretty much hit the nail on the head with this post!

"That to me means that records of all its domestic surveillance should be created and held in repository beyond the Executive branch's control (so it can't disappear inconvenient records). I propose that this repository be under the Judicial branch's control, and that the Judicial branch be charged both with ensuring that it does receive those records, and also of ongoing analysis and organization of the records for use by Congress. This limited, albeit active, role would preserve the impartiality of the Judicial branch."

Sounds good to me! It seems like this must have been a part of the original intent of FISA, though it may have been carried out inappropriately (i.e. the warrant requirement). If so, maybe it's because Congress at the time didn't imagine terrorist organizations or plots on the scale of al Qaida and 9/11 (lack of imagination? Whatever.) It seems like FISA intended to treat terrorist organizations more like crimial organizations--however, I admit I could be reading that wrong.

"It would be up to Congress to periodically review the records of warrantless searches for abuses. IMO this is the real problem. Congress plain runs screaming from responsibility. That is a major reason why they want to shove all oversight responsibility onto the Judicial branch."

Yeah, so true--I definitely think you're dealing with the real issues here.

This mabye brings up an interesting question: let's say the executive applied for a warrant in a case like these, didn't get one, and went ahead and performed the surveillance. Then what?

And the real issue might be illustrated by this example: let's say FISA never existed. The executive performs a warrantless surveillance (again, in a case like these--claiming it's for foreign intelligence purposes). Congress gets wind of it and claims the executive overstepped its bounds. Then what? Should it go to the courts? Is impeachment the only option?
2.9.2006 4:46pm
jrose:
Jack John,
The program -- a foreign intelligence-gathering program -- applies not to all Americans, but to foreign powers and agents of foreign powers or persons designated by the President under authority granted by AUMF as affiliates of Al-Qaeda.
It is not an established fact that this program is limited to communications that involve foreign powers, agents of foreign powers or affiliates of al-Qaeda.
2.9.2006 4:49pm
Jack John (mail):

It is not an established fact that this program is limited to communications that involve foreign powers, agents of foreign powers or affiliates of al-Qaeda.




It is not an established fact that reality is not a figment of Zeus' imagination.
2.9.2006 5:22pm
Tom Holsinger (mail):
Some Guy,

Congress has many ways to force its will on a President - it can slash budgets (and not just for the agencies in question), hold up appointments even more than it does now, drag Executive branch officials before interminable hearings to answer pointed questions by knowledgeable staffers and attended by only a few rotating Congressmen/Senators, subpena lots and lots of sensitive documents, hold officials in contempt, etc.

All this requires a reasonably cohesive majority in Congress in favor of such tactics, but not the 2/3 majority in the Senate required for impeachment.
2.9.2006 5:29pm
Medis:
I see the slander campaign against Judge Kollar-Kotelly is beginning. I guess that particular well never goes dry.
2.9.2006 5:34pm
Jack John (mail):
I see the slander campaign against President Bush is continuing. I guess that particular well never goes dry.
2.9.2006 5:35pm
jrose:
Jack John,

If it were true that this program is limited to communications that involve foreign powers, agents of foreign powers or affiliates of al-Qaeda, then why doesn't Bush get a warrant from the FISC?
2.9.2006 6:09pm
Noah Klein (mail):
JJ,

Slander is the "defamation of a person by unprivileged oral communication made to a third party" (findlaw dictionary). When the president provides so much evidence of wrongdoing and horrible policies it is not slander it is reality. I know it is a concept far from you're understanding, but the rest of us live in it. Also Medis and you are both wrong it would be libel.

Noah
2.9.2006 6:16pm
Medis:
Et tu, Noah?
2.9.2006 6:24pm
Noah Klein (mail):
Medis,

It needed to be done.

Noah
2.9.2006 6:34pm
Jack John (mail):
Jrose:

1. Bush doesn't need a warrant. It only targets people we are in hot pursuit of who have evanescent evidence. That is an exception to the Fourth Amendment.

Noah:

2. "When the president provides so much evidence of wrongdoing and horrible policies it is not slander it is reality." Really? Horrible is an objective determination and not a normative one? Wrongdoing is an objective determination and not a normative one? While you might be able to say that it isn't slander or libel because the President is a public official and criticizing public officials is a core First Amendment right, the idea that horribleness and wrongness are facts is idiotic.
2.9.2006 6:47pm
Noah Klein (mail):
JJ,

We have evidence in front of us that the president willfully violated the law. He may feel he has a good reason for it, but it is a violation of the law and most criminals feel that have a good reason for it. Please don't misunderstand me. I do not think that the president is a evil or a horrible person. I just think he is a horrible president. This is what I meant by horrible and the public appears to agree. Perhaps I could have stated it more calmly and with greater deference and for not doing that I am sorry. I was struck with emotion, because what people are trying to do to the presiding judge of the FISC is far from what people are doing to Bush. As Medis said, a campaign to malign a dedicated public is beginning. People's statements against GWB, while many times are ridiculous, does have some backing. This is a subject we will disagree on, but believe I have done a full 360 with this president. From being angry at how elected, to cautiously expecting a good president, to fully backing the man who I thought would lead the country through a difficult time, to once being angry at his disregard for the Congress and the judiciary and the people.

Noah
2.9.2006 7:34pm
Charlie (Colorado) (mail):
It is not an established fact that this program is limited to communications that involve foreign powers, agents of foreign powers or affiliates of al-Qaeda.

That is, however, the way it's been characterized by everyone who has actual knowledge of the program, including folks like Harman and Rockefeller, so assuming it's something else seems kind of counterfactual.
2.9.2006 7:42pm
Jack John (mail):

I just think he is a horrible president.



Yes, and that is not a fact. (Nor is it an argument.) Horrible is a normative conclusion. Plenty of people think he is a wonderful President.
2.9.2006 7:46pm
jrose:
Jack John,
Bush doesn't need a warrant. It only targets people we are in hot pursuit of who have evanescent evidence. That is an exception to the Fourth Amendment.
Do you have a citation for your claim that the evidence is evanescent? Has the Administration made such an argument?
2.9.2006 7:57pm
Tom Holsinger (mail):
Noah,

There is no evidence that President Bush, or anyone in the Executive branch, have violated FISA. I certainly believe that some warrantless domestic surveillance has taken place which would constitute a FISA violation under the most common interpretations of FISA, but there isn't any evidence of this that I am aware of.

Now if you are aware of any, please let us know. Right now. Or admit that you are not aware of any and just made this up:
"We have evidence in front of us that the president willfully violated the law."

And, as I have said many times, the most common interpretations of FISA's domestic surveillance warrant requirement make it unconstitutional as applied.
2.9.2006 7:59pm
Charlie (Colorado) (mail):
We have evidence in front of us that the president willfully violated the law.

No, Noah, you've got a bunch of arguments from a bunch of ill-informed people who think the President violated the law, if the facts are what they're assumed even when their assumptions contradict what's been reported, and their legal interpretations are what eventually are agreed on, even though at this point the very people most determined to push the "violated the law" interpretation in Congress are determinedly saying "if the law doesn't match what's needed, let's change the law."
2.9.2006 8:03pm
Charlie (Colorado) (mail):
K Ashford, since no one else seems to have answered you directly, I'll essay a try: yes, I do think that it would be, and is, constitutional for the president to order people in a similar situation to turn over their weapons. The difficulty is that you're assuming that the NSA program is being used to make a general attack on the rights of every US citizen, while the program as described is only applied to people who appear to be engaged in armed hostilities against the US.

So yeah, not only can the President order those people to turn over any arms they may have, he can order them to be killed by the military in the course of hostilities, without so much as a Miranda warning.

So can we dispose of that particular straw man now?
2.9.2006 8:09pm
Jack John (mail):

Jack John: Bush doesn't need a warrant. It only targets people we are in hot pursuit of who have evanescent evidence. That is an exception to the Fourth Amendment.

jrose: Do you have a citation for your claim that the evidence is evanescent? Has the Administration made such an argument?




Yes, General Hayden (who run the program) explained that the program fit within the "hot pursuit/evanescent evidence" exception to the Fourth Amendment mutliple times on an appearance on Fox News Sunday with Chris Wallace. The appearance was on Superbowl Sunday. Check the transcript.
2.9.2006 8:10pm
te (mail):
I am continually dumbfounded by the fact that so may people who self-identify as conservatives (including several in this thread) have a knee-jerk reaction to justify whatever absurd justifications the administration offers for its apparent violation of law.

This is all so very short-sighted. Yes, we can all wave around the "nation at war" rhetoric but all this does is build the foundation for future administrations (some of which will probably not be conservative, republican ones) to justify THEIR trampling of our rights.

Okay - a number of people have brought up the "proof question." Fair enough. However, I think that Gonzanez tap dance makes it clear that improper searches have taken place. Gonzalez refused to answer yes or no whether 1) the mail of Americans had been searched without a warrant and 2) whether any telephone conversations between Americans entirely in America had taken place.

What happens in 2010 when a nutjob like Hillary gets in office and decides that the militia movement, or survivalists, or NRA members (take your pick) are operating as "domestic terrorists"?

These important issues are not some sort of debating game where you pick a side and do everything possible to justify that's side's actions. The stakes are too high for that.
2.9.2006 8:18pm
jrose:
Jack John,

Hayden said hot pursuit justified warrantless surveillance because the FISA process was too slow. He made no mention of an evanescent evidence problem. If the FISA process is too slow, why doesn't the President ask Congress to modify it?
2.9.2006 8:26pm
Noah Klein (mail):
JJ, Tom, and Charlie,

The president, the AG, the DOJ, the people in Congress who were briefed on the program all say that it would be covered by FISA. When asked why they did not follow FISA, the AG said that it would be too cumbersome. He did not say that FISA would not apply to this program. Nor did he say that they need follow a standard that would be lower than probable cause. He said the paperwork was too much of a hassle. This is a violation of the law. Congress did not authorize and a majority on the Judiciary committee, a majority on the intelligence committee, a majority in Congress have consistently said that the AUMF did not mean what the administration has read into it. This is why it is a willful violation of the law.

Does that mean it is appropriate to prosecute the president? Probably not. It does mean it is a violation of the law. Just as much as LBJ's and Nixon's actions were violations of the law. I will my mind if you show me how FISA is different than the UCMJ or Posse Comitatus. I will change my mind if you show me where in the legislative history Congress gave Bush the authority he is claiming. I will bow down and call you all the masters of all these legal if you can show me where in the Constitution the president is give complete control of all things in the government during wartime.

Noah
2.9.2006 8:32pm
o' connuh j.:
"Gonzalez refused to answer yes or no whether 1) the mail of Americans had been searched without a warrant..."

??

United States v. Ramsey?
2.9.2006 8:34pm
Jack John (mail):
Noah,
Are you a law student?
Have you ever been a law student?
Do you have a law degree?
Have you taken the bar?
Have you passed the bar?
Are you a working attorney?
Do you work for DOJ?
The Executive branch?
Have you read every provision of FISA?
What especial expertise or credentials do you have to make your argument, exactly, other than your admission that "I just think he is a horrible president"?
2.9.2006 8:51pm
Noah Klein (mail):
JJ,

Yes, Yes, No, No, No, No, No, No and Yes. What makes me thinkg that I have credentials to make an argument? Aside from the fact that I am American, a law student have read and the history and am well acquainted with politics and government, nothing. What especial expertise and credentials do you have to make your arguments? The fact is that while been making substantive arguments (the horrible president reference aside, you will remember that I apologized for bringing in too much), you have failed to address them, but instead consistently address side issues, which you feel you can use to defeat my arguments. I guess you learned too well the old adage, "when the law on your side, argue the law. When the facts are on your side, argue the facts. And when neither are on your side, bang your shoe against the table." I am waiting for next your next shoe bang.

Noah
2.9.2006 9:01pm
fred (mail):
te:

The reason Gonzales refused to answer questions having to do with other activities that may or may not be taking place is that any revelation of the scope or nature of any of those programs helps terrorists figure out how to safely communicate.

It may even have been a crime to disclose any covert program that the president has not already disclosed - that is why Gonzales was so careful. He repeatedly told Senators that he could only discuss things so far as they touched on the program that the President disclosed.

There is an enemy out there. He does want to kill a lot of people. So this is not just some political gotcha game. Gonzales was not just trying to avoid answering questions. Would you prefer that our public officials just blabbed everything they knew?

You are right, though, about the potential for abuse. Some future president will abuse this power. (but domestic terrorists are a domestic matter, and governed by stricter rules) Some sort of oversight needs to be established so that we are sure the President is surveilling who he says he is surveilling. My guess is that ulitmately the Congress will settle for a crew very close to those the President told about this NSA program.
2.9.2006 9:01pm
te (mail):
"The reason Gonzales refused to answer questions having to do with other activities that may or may not be taking place is that any revelation of the scope or nature of any of those programs helps terrorists figure out how to safely communicate."
I have heard this reasoning before and I submit to you that it just does not make any sense. Nobody was asking for disclosure of sensitive operational details.
2.9.2006 9:13pm
minnie:

Obi-Wan: Your anger and your lust for power have already done that... You have allowed this dark lord to twist your mind until now you have become the very thing you swore to destroy.


------------------
Senator Amidala: What if the democracy we thought we were serving no longer exists, and the Republic has become the very evil we have been fighting to destroy?

Neither impeachement nor tweaking the laws is the answer. Either the people of America care enough about this monumental divergence from the principles which have guided our country for the past 200+ years or they don't. If they don't, nothing is going to change things, and we are headed toward the dark side.

Hillary Clinton would no doubt authorize the very same policies and programs which horrify certain posters on this site, including me. So would most of the possible Republican candidates.

The people have to understand the issues, speak up, and make their voices heard so loudly in the halls of power that denying the outcry becomes impossible.

It's not a partisan thing. It's a question of preserving the nation. Otherwise, Padme's words become prophetic:

So this is how liberty dies, to a thunderous applause.
2.9.2006 9:17pm
fred (mail):
Noah Klein:

I think you are just wrong on a couple of points.

If the president's inherent powers enable him to perform warrantless survellance of terrorists, he has not broken the law. If that is the case, Congress has "broken the law" by trying to limit his constitutional power.

The AG did not merely say it would be too cumbersome, he said it would be ineffective, making the same point Haydem has made about the difference between detecting plots and long term collection of information on those plots. The detection is done by the NSA program, and the long term surveillance of suspects is done via FISA. It's not that they are ignoring FISA, it's that they think the president has constitutioinal power untouched by FISA to DETECT the existence of plots. Once they move into a longer term monitoring of the people involved in those plots, they get FISA warrants.

As you may know, emails have header information which is separate and apart from the actual contents of the email. From what Hayden has said, it appears they examine the header information,(sometimes called Metadata) and then if there is a reasonable belief that something is going on, they get a FISA warrant to examine the actual ocntents of the message.

I suspect they believe that there is a lesser expectation of privacy in the header data, especially since each computer routing the message reads that header data in order to route the message to its destination. It is in the open, much as the address on a physical letter is. Anyone can read the outside of a letter without a warrant.

Now, this may be wrong to some degree, but that is what I detected from watching Hayden interviewed on Fox on Superbowl sunday, and from my knowledge of how email systems work. Of course, none of this applies to phone calls, etc. Which may have a different regimen.
2.9.2006 9:17pm
Jack John (mail):
Noah,

The fact that you are a law student who has read all of FISA says it all. Instead of learning the law, you are hanging out on Volokh Conspiracy chatterbuggin' it up and poring over FISA. Perhaps if you went to class, you would know something about the law. I hope the arguments you make here aren't what you put down in your exam booklets, and I especially hope you don't put "I just think he is a horrible president" in your booklets when you take the bar for the sixth time. By then you will have, I hope, learned your lesson.
2.9.2006 9:32pm
Just an Observer:
fred: If the president's inherent powers enable him to perform warrantless survellance of terrorists, he has not broken the law. If that is the case, Congress has "broken the law" by trying to limit his constitutional power.

How would you resolve the question of which proposition is correct? Sen. Specter asked the administration to submit that legal question to the courts, but the suggestion was not accepted.
2.9.2006 9:33pm
Jack John (mail):
Jrose: Hot Pursuit and Evanescent Evidence are the SAME exception to the Fourth Amendment.

WALLACE: One other question on that before we move on to other subjects. You've used the phrase hot pursuit, that this helps...

HAYDEN: Right.

WALLACE: ... in the question of hot pursuit of intelligence leads involving terrorism. Can you help us understand what that means?

HAYDEN: Sure. Again, the purpose of the program is to detect and prevent. Speed is very important. You may have heard Director Mueller in open session last Thursday in front of the Senate Intel Committee talk about the slowness of the FISA process and the complexity of the FISA process. I'll refer you to his remarks as to how he has to work through that as head of the FBI.
2.9.2006 9:35pm
Noah Klein (mail):
JJ,

I don't make a legal argument that Bush is a horrible president I make a political argument that Bush is horrible president. And I thus responded to dumb comment about the slander of the president. Not only that, but I apologized for bring emotion into a legal debate. The one place emotion does not belong. Even so, I'm doing pretty well in law school and thank you for the advice, but I read the law and go to classes. Did you?

Fred,

The president does have inherent powers over the military, but he does not have exclusive powers over the military. The regulations of the military are made by Congress. When Congress does not have rules regarding the military, such as prior to FISA, the president has more leeway, but after makes a rule regulating the military the president like the whole executive branch must follow or appeal to the judiciary and say it is unconstitutional. No president is simply able to violate the law.

Noah
2.9.2006 9:44pm
Jack John (mail):
Thanks for calling me dumb, Noah. I suppose Noah won't receive a warning.
2.9.2006 10:06pm
Noah Klein (mail):
JJ,

You said far worse and you have called me dumb too. I just responded.

Noah
2.9.2006 10:08pm
Jack John (mail):
Ha! That isn't true. You called me names first. I called you dumb only after you had insulted me more than once.
2.9.2006 10:16pm
Noah Klein (mail):
JJ,

This is ridiculous. I promise to never call you dumb again. Your arguments I will insult, but not yourself. I have to admit I became extremely angry when you said I was coming on to you. I believe it is this that Prof. Kerr was talking about. I forgive you and I hope you forgive me.

Noah
2.9.2006 10:19pm
Jack John (mail):
Oh, that? Hmm. But that post was substantive. Oh well. No, I don't forgive.
2.9.2006 10:27pm
Noah Klein (mail):
JJ,

OK. Have a good night.

Noah
2.9.2006 10:31pm
jrose:
Jack John,

Our Hayden sidebar has obscured the main point. Let me first get back to the main point - and then bring Hayden back into the discussion when he is relevant.

You and the Administration have claimed the program applies only when one end of the communication is an al-Qaeda member (or other enemy of the U.S.). If that claim is true, then I agree the President is probably acting within the law. On the other hand, do you agree that if the surveillance includes foreign communications in which neither party is an al-Qaeda member, the President has broken the law?

Assuming you agree, how do we know which situation we are in? Isn't that oversight the whole purpose of the warrant process? Even if we assume the President is only surveilling communications in which one party is an al-Qaeda member - and he can legally avoid the warrant - why would he want to? He is going to get the warrant anyway and in the process quash any suspicion of wrong-doing.

And that's where Hayden comes in. He made an argument that getting the warrant would allow the enemy to slip away. To which I replied, why doesn't the President ask Congress to amend FISA so that the warrant process doesn't allow the enemy to slip away. One answer might be that FISA can't be so amended because the evidence required to support the warrant is sufficiently evanescent that it would be impossible to gather it for submission.

You chose to read Hayden's comments as a legal argument for why the program does not violate the Fourth Amendment. That observation may very well be true, but it is off-point. I want to know if Hayden's comments support the notion that it is impossible to amend FISA so the enemy cannot slip away. I do not see his comments supporting that notion, nor do I see the Administration arguing it.

All I see is an Administration that claims it does not need a warrant strangely enough because it is acting in a manner in which it can easily get a warrant anyway (i.e., trust us - we don't don't need a warrant).
2.9.2006 11:44pm
John Lederer (mail):
Is there some other statute granting the FISA court jurisdiction beyond this phrase in section 1803:

"..who shall constitute a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States under the procedures set forth in this chapter.."


Is the NSA surveillance "under the procedures set forth in this chapter"?
2.10.2006 12:06am
Lev:
Re: 2.9.2006 11:44pm

It seems to me, oversight is the whole purpose of the Congressional "Intelligence" committees.

The purpose of the FISA court is to authorize, or not, warrants for activities that might produce information that may


be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof


Thus, regarding information produced by activities that are not authorized by warrant according to the statute:


In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof


The FISA court authorization does not quite relate to intelligence gathering and terrorist act prevention as for those activities the primary objective is not introduction in:


any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof


Perhaps there is a defect intentionally built in to the statute, or perhaps the statute was drafted wearing blinders focused only on Law Enforcement Procedures, else what does this mean:


when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest. In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence


The AG is not required even to apply for a warrant - so long as the surveillance was notified to, say, the FISA chief judge, and is terminated no later than 72 hours later...unless renotified. The Government does not seem to be prohibited from using the information gained for intelligence purposes, only Law Enforcement Purposes, in


any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof
2.10.2006 12:45am
Noah Klein (mail):
John,

Yes.
2.10.2006 1:36am
Medis:
John L.,

It appears that this particular NSA program (the confirmed one) involves, at least in part, electronic surveillance within the meaning of FISA, but without following the FISA (or Title III) procedures. I think your point is that unless the government actually submits an application under FISA which somehow involves this program, the FISC has no jurisdiction to do anything about it. I think that is correct. The only caveat is that if the government tries to use evidence from this program in a FISA application, then the FISC could evaluate that program as part of determining the merits of this application.

Lev,

You are confusing the minimization sections of FISA with what is supposed to be the "significant purpose: of surveillance under a FISA order: gathering foreign intelligence information.

50 USC 1804(a) specifies the contents of FISA applications. 1804(a)(7) requires the application to include:

"(7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate—
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801 (e) of this title; and
(E) including a statement of the basis for the certification that—
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques."

So, again, gathering foreign intelligence information is supposed to be the purpose of surveillance under a FISA order. What you are looking at is procedures that apply only when an order is sought and denied.

Incidentally, it may be useful to look at how FISA defines "foreign intelligence information", in light of the common claim that FISA is a "law enforcement" statute, or built on that model. 1801(e) provides:

"(e) 'Foreign intelligence information' means—
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to—
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States."

So, that is what FISA is designed to regulate: the government's use of electronic surveillance within the meaning of FISA when a signficant purpose of that surveillance is gathering foreign intelligence information as defined above.
2.10.2006 8:27am
Just an Observer:
Hugh Hewitt yesterday interviewed three other law professors on the subject of the FISC chief judges' role in the warrantless NSA surveillance matter.

There were two interviews, the first with Erwin Chemerinsky and John Eastman, and the second with Jonathan Adler.

Their opinions were diverse, depending in part about how they view the legality of the NSA program itself. But all expressed reservations about the form of the judges' actions.

For example, Hewitt and Adler are sympathetic to the legality of the warrantless wiretaps, and question whether Judge Kollar-Kotelly should have invented extra procedural restrictions on using information derived from it to justify subsequent FISA warrants. Those restrictions included sworn certifications from senior officials that the justification for such warrants did not depend on information from prior unwarranted surveillance.

ADLER: Well, I have a lot of problems with that sort of ex parte communication between a judge...

HEWITT: Exactly.

ADLER: ...and an executive department official outside the context of a given case. Now if in a given case there's reason to worry about the completeness of certain information, that's one thing. But kind of this...what appears to be kind of ad hoc communication and decision making is to me, troubling.


Hewitt does make the point that by avoiding review of the question within an actual case, and thus avoiding appellate review, the DOJ weakens its own argument that the warrantless surveillance was lawful. Chemerinsky, who does not think the wiretapping has been legal, of course agrees.

Chemerinsky says he also is bothered by the judges' actions:


And of course, to me, that was the problem with what President Bush was doing. By engaging in wiretapping that clearly did not meet the 4th Amendment or FISA, even if he had the power as commander-in-chief, the evidence would have to be excluded. That's the cost of doing what the president was doing. That's why there should have been a legislative fix consistent with the 4th Amendment, not unilateral action by the president or these judges.
2.10.2006 11:06am
Jack John (mail):

jrose: I want to know if Hayden's comments support the notion that it is impossible to amend FISA so the enemy cannot slip away.


1. Your argument is irrelevant. The program does not violate the Fourth Amendment because it fits within an exception to the Fourth Amendment. A warrant is not constitutionally necessary.
2. The question, then, is can Congress impose a warrant requirement on the President when the Fourth Amendment does not? This is a problem for those making your argument:

a. The Fourth Amendment does not have a "necessary and proper" clause that grants Congress power. Indeed, the Bill of Rights is a check on power on Congress, not a grant of power. The First Amendment makes this clear: "Congress shall make no law ..."

b. Traditionally, state legislatures have been free to grant greater protections than the Bill of Rights, especially with regard to the Fourth Amendment. If such powers have been reserved to the States, then Congress does not have them. See the Tenth Amendment and the Ninth Amendment.

c. So: What is the authority that Congress relies on to impose a warrant procedure on the President when he has not violated the Fourth Amendment? Note that congressional intent an dlegislative history are irrelevant to answering this question; I'm just interested in your understanding of the Fourth Amendment, the President's inherent powers, and Congress' relationship to state legislatures in your interpretation of the Ninth and Tenth Amendments of the Constitution.

d. This is not a nasty attack meant to draw the ire of Orin Kerr.
2.10.2006 12:59pm
minnie:
1) Figure out that you want to surveil someone. (Note: the NSA CANNOT BEGIN SURVEILLANCE at this stage.)

A.S.: I assume everyone just scrolls by your posts which is why nobody bothers to point out that although you keep making this absurd assertion, it is false. They can begin the surveillance the second they choose to, and the 72 hours is retroactive.

Tom Holsinger: I asked you a question three times. Will you please answer it?

QUICK! There's a paintball tournamnet about to start in Outer Mongolia. Maybe JJ, Tom, A.S., Noah, o'connuh, Charlie, etc. should be getting ready for departure?
2.10.2006 1:02pm
Noah Klein (mail):
minnie,

You're right. JJ and my argument got out of hand and I promised not to be brought into such a shouting match again.

Noah
2.10.2006 3:50pm
Lawstsoul:
"Noah,
The fact that you are a law student who has read all of FISA says it all. Instead of learning the law, you are hanging out on Volokh Conspiracy chatterbuggin' it up and poring over FISA. Perhaps if you went to class, you would know something about the law. I hope the arguments you make here aren't what you put down in your exam booklets, and I especially hope you don't put "I just think he is a horrible president" in your booklets when you take the bar for the sixth time. By then you will have, I hope, learned your lesson."

John Jack:
I can answer yes to most of your questions, however neither the questions nor the answers are relevant to one's ability to participate in this discussion. On the otherhand, IMHO, young Noah makes some pretty persuasive arguments, both in substance and style, and he is clearly holding his own here. If there's any lesson to be learned, I would be somewhat hesitant to call attention to the fact that an adversary who is giving me a run for my money is merely a law student, let alone be condescendingly dismissive of his arguments and right to make them. It is so embarrassing everytime a judge suggests that additional CLE would be helpful.
Regards
2.10.2006 4:17pm
jrose:
Jack John,

The purpose of my original comment was to question why the President refuses to comply with FISA when his rationale for not complying implies he'd have no trouble getting the warrant.

It is noted that you do not wish to address that topic and instead have offered a new topic: is FISA unconstitutional?

What case law supports your theory? Given that your theory implies Congress is prohibited from establishing a warrant requirement with a higher standard than the Fourth in domestic criminal cases, is there case law which contradicts your theory?
2.10.2006 4:49pm
Brutus:
Obi-Wan: Your anger and your lust for power have already done that... You have allowed this dark lord to twist your mind until now you have become the very thing you swore to destroy.
------------------
Senator Amidala: What if the democracy we thought we were serving no longer exists, and the Republic has become the very evil we have been fighting to destroy?

Otherwise, Padme's words become prophetic:

So this is how liberty dies, to a thunderous applause.


It's bad enough I paid $9 to sit through George Lucas' crude political allegories the first time, but to see them recycled in the service of a ponderous diatribe against the administration... oy.
2.10.2006 6:08pm
Charlie (Colorado) (mail):

A.S.: I assume everyone just scrolls by your posts which is why nobody bothers to point out that although you keep making this absurd assertion, it is false. They can begin the surveillance the second they choose to, and the 72 hours is retroactive.


Minnie, as it's been described, the AG can't or won't authorize the surveillance to start until the paperwork to be presented to the FISA court is more or less finished, at least in part because the paperwork takes much more than 72 hours to complete.

Does it make sense that it takes this long? I dunno, I just know what I read in the papers.


QUICK! There's a paintball tournament about to start in Outer Mongolia. Maybe JJ, Tom, A.S., Noah, o'connuh, Charlie, etc. should be getting ready for departure?


Huh?
2.10.2006 8:55pm
Charlie (Colorado) (mail):

I am continually dumbfounded by the fact that so may people who self-identify as conservatives (including several in this thread) have a knee-jerk reaction to justify whatever absurd justifications the administration offers for its apparent violation of law.


Well, I'm continually dumbfounded by people who assume as truth the very proposition at issue, ie, did the actual program violate the actual law?
2.10.2006 8:59pm
Charlie (Colorado) (mail):

The president, the AG, the DOJ, the people in Congress who were briefed on the program all say that it would be covered by FISA.


They also all have said that it was covered by either long-standing precedential exceptions used by presidents back to Carter, by the AUMF, or by their Article II powers of the president.

Since you're asserting these people as authorities on the issue, you probably ought to include that point.
2.10.2006 9:02pm
Charlie (Colorado) (mail):

I have heard this reasoning before and I submit to you that it just does not make any sense. Nobody was asking for disclosure of sensitive operational details.


The fact that you don't have sufficient knowledge or experience to see how that might happen doesn't constitute an argument.

Having at one time been cleared for this kind of stuff, and having done a lot of theoretical work on the issue since, I don't have any trouble seeing the possibility.

An example that I know I can talk about (because I learned everything I know from open sources) is SIGINT operations from submarines. While these operations were secret, it would be damned difficult to say anything about them that wouldn't risk "sources and methods". It might be that the AG is being too cautious, but better too cautious than not cautious enough.

In World War II, a Navy man went down with his ship (literally!) rather than risk a possible disclosure to the japanese.

You may not take this that seriously, but a lot of us do.
2.10.2006 9:09pm
Medis:
Charlie,

How would a statement like, "Whenever we do electronic surveillance within the meaning of FISA, we follow either the Title III or FISA procedures," reveal operational details?
2.10.2006 11:33pm
Lev:
re: Medis 2.10.2006 8:27am

You are confusing the minimization sections of FISA with what is supposed to be the "significant purpose: of surveillance under a FISA order: gathering foreign intelligence information.


Not at all. The "minimization" sections of FISA as defined in the definition section 1801h relate to the requirements of the substantive sections to

minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons
.

among other similar things. Even if a warrant is obtained, even if the AG makes his special findings, the surveillance is required to, among other similar things

minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons
.

That is irrelevant to whether FISA is directly primarily to Law Enforcement Procedures and introduction of the material before any proceedings in the US.

50 USC 1804(a) specifies the contents of FISA applications. 1804(a)(7) requires the application to include:...So, again, gathering foreign intelligence information is supposed to be the purpose of surveillance under a FISA order. What you are looking at is procedures that apply only when an order is sought and denied.


You appear to have failed to read all of the the statute. What I am looking at is procedures that apply if an order is not applied for at all. I refer you to 1805f. If an application is not made, your point about 1804 is irrelevant. And an application not being made is specifically contemplated by the statute, by the consequences I pointed out, which were from 1805f. The case being addressed in the post I responded to was the emergency case.

So, that is what FISA is designed to regulate: the government's use of electronic surveillance within the meaning of FISA when a signficant purpose of that surveillance is gathering foreign intelligence information as defined above.


FISA is, by its terms, designed to regulate what information produced by the government's use of foreign electronic surveillance is allowed to be used in

any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof


You are focused on Law Enforcement Procedures. To be fair, that is what the FISA statute appears primarily focused on, intentionally or unintentionally - what information produced by surveillance may be introduced as evidence in court.

But it does not require that an application be made to the FISA court, nor does it appear to prohibit information obtained by surveillance for which an order was not applied for from being used for intelligence purposes.
2.11.2006 12:41am
Medis:
Lev,

Actually, you are right that nothing in FISA itself makes following the procedures in FISA mandatory. Rather, that is done in 18 USC 2511, which you might want to take a look at (specifically focusing on 2511(2)(f)).
2.11.2006 1:25am
John Herbison (mail):
Kudos to Charlie (Colorado) for addressing K Ashford's Second Amendment hypothetical straightforwardly and on the merits, while others squirmed like worms on a hot brick. I note, however, that Charlie offers no justification apart from an ipse dixit legal conclusion. Does any intrepid defender of the J. Edgar W. Bush administration have balls and brains enough to address the merits and offer authority? The hypothetical bears repeating:

Let me ask a question to those who think the President's Commander-in-Chief powers give him the legal and constitutional ability to do end-runs around the Fourth Amendment.

My question is: Do those same powers allow him to circumvent the Second Amendment?

In other words, if Bush, as Commander-in-Chief and pursuant to the AUMF, ordered -- in the interests of national security -- the confiscation of all handguns in the United States, would you argue that he was legally and constitutionally on solid ground? (I understand you would object politically, but I'm asking about the constitutional issue).




To those who would answer in the affirmative, would the same reasoning apply to a President Hillary Clinton? Or is a foolish consistency indeed, as Emerson observed, the hobgoblin of little minds?
2.11.2006 2:58am
jrose:
Lev,

In additon to 18 USC 2511, 50 USC 1805(f) says (my emphasis):
In the event that such application for approval is denied [...] no information [...] shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees...
Wouldn't any other manner cover intelligence?
2.11.2006 10:46am
Medis:
John H.,

I think it is a shame people aren't taking that question more seriously. One of the necessary steps in the "constitutional" argument in question (although I hesistate to dignify it with that name) is a reversal of a normal canon of constitutional construction: that a more specific provision of the Constitution trumps a more general provision. They need to reverse this canon because the Constitution specifically enumerates all sorts of congressional power to make military laws and laws for war, and they want to argue that the general grants of Executive and Commander in Chief power somehow trump these more specific grants of legislative power, rather than the other way around.

So, why not give the same treatment to the Bill of Rights? It has long been held that Congress, for example, cannot use its more general powers under Article I to trump the more specific limitations in the Bill of Rights. But if we are reversing this canon, then it would seem that Congress could do that--and so too could the President use his Article II powers to trump the Bill of Rights. For that matter, why not the judiciary, with its general Article III powers?

Of course, this is all going to end up with a mess of a Constitution. There is a good reason for adopting this canon of construction--without it, you will end up with an incoherent set of general powers constantly in conflict, and with no means of resolving these conflicts.

Which is why it is clear to me this is not an attempt to actually interpret the Constitution. Rather, they are starting with the end point--what they want to be true--and simply declaring that because what they want represents the Form of the Good, the Constitution surely must conform.
2.11.2006 12:19pm
John Lederer (mail):
Medis,

When I was practicing I kept a particular text on statutory construction in my office. It was a very handy reference source because in a table it listed twenty or thrity of the most common rules of stautory construction --and the opposing rule of statutory contruction. It also provided a caution to me for my appeals -- I always made it a point when arguing a rule of statutory construction to also argue why it should be the rule applied in my case.

The steps to analyzing the AUMF and FISA it seems to me would be:

(1) Is there a conflict? (There is a canon of construction to construe to avoid conflict)

Likely the answer here is "no", there need not be a conflict. FISA has an express allowance for other authorizing statutes. AUMF, at least for purposes of this part of the analysis, is such a statute. Where is the conflict?

(2) Assuming that there is a conflict then the question is which law of statutory construction to apply.

You suggest that the answer is that the specific ought control over the general, and that FISA is more specific in this instance.

I would suggest that this is not correct because of what the AUMF is. Yes it is an authorization, but it is also the announcement of a changed status. We are at war and we are going to substitue the laws of war for civilian law where necessary, We can kill people because they are "over there" on a battlefield, and we need not ask them to drop their weapon and come out with their hands up so we can read them their Miranda rights. We can bomb a ministry building in a city, even though there will be loss of "innocent" life if the rules of war of necessity, discrimination, and proportionality allow it.

As a consequence it overrides or activates a host of specific statutes over a wide range of fields. It would be silly to attempt to list those, i.e.:

"(a) You may violate 49 USC 46502(a)(1)(a) (Air Piracy) by threatening to shoot down an airliner that doesn't follow your instruictions
(b) You need not file an Environmental Impact statement for large movements o f troops
(c) You may violate 40 USC 5104(e)(1) by placing stinger missiles on the roof of the Capitol even though there are no security regulations allowing them.
(d) You can violate procurement law by telling a small sniper rifle barrel maker in Wisconsin by telephone " Make'em. FEDEX'em. We'll fly them to Afghanistan from here. We'll get paperwork to you later."
(c) You can violate the post regulation at Ft. Hood prohibiting tracked vehicles on paved roads..."
etc. , etc."


I suspect you might argue that the AUMF in that case is essentially lawless. We have no way of knowing what it overrides or doesn't override. Can we shoot suspected terrorists in the streets of New York? Drop a JADAM on a terrorist house in Buffalo?

There are limits. The key one is military necessity (not meant in the pejorative sense, but as a limit). It allows one to threaten to shoot down airliners when that is necessary. It does not allow one to threaten to sink a ship 30 miles off the coast that is not an immediate threat. It allows one to douse one's navigation lights when flying into Bagram, but requires them to be on when making an intermediate stop at Rhein-Main.

This is why I think the key divide on most of these legal questions is a simple one. Does one believe we are at war or not?.
2.11.2006 1:47pm
jrose:
John L,

How can AUMF be an authorizing statue per 50 USC 1809 in light of 50 USC 1811: Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.

Even if we ignore 50 USC 1811, don't we need to follow Hamdi and require that AUMF is authorizing an action which is a fundamental incident of war? Under what circumstances would the surveillance be a fundamental incident of war but the FISC would refuse to issue a warrant?
2.11.2006 2:03pm
Medis:
John L.,

As an aside, I was talking about the Constitution, not statutes. Still, even then I would agree that canons of construction cannot be applied mechanically. However, I would suggest that in this case, the application of the canon I mentioned is backed by the entire structure of the Constitution, the contemporaneous writings of the Founders, the general history leading up to the inclusion of the relevant provisions into the Constitution, and the Founders own application of these provisions in the early Congresses.

But on your points:

(1) As another aside, there also isn't even a potential conflict between the 2001 AUMF and 18 USC 1809 if one does not imply authorization for electronic surveillance without following the FISA procedures into the 2001 AUMF. Again, the simple way to avoid this entire issue is to not assume "necessary and appropriate force" includes electronic surveillance outside of the FISA procedures. Of course, the obvious problem with this simple way to avoid the conflict is that the President would not get what he wants.

But anyway, the conflict between that interpretation of the 2001 AUMF and existing law is actually created by 18 USC 2511(2)(f), not 50 USC 1809. As I have often noted, the Administration would have a much better argument if 1809 was the only applicable statute. Unfortunately for their legal argument, it is not. And that is as Congress intended, as the CRS memo explained.

(2) As always with these hypos, I'm not sure that existing law does not provide for the necessary exceptions. In other words, you are throwing a lot of "mays" in there, and I don't know it to be the case that in any of those situations, the law does not provide an adequate exception.

Moreover, as jrose notes, FISA does in fact provide for an exception after a declaration of war--but it is temporary. In general, FISA by its own terms is about dealing with violent attacks on the United States and other grave threats to national security. So, once a statute clearly is intended to apply even in war, and to situations that arise in war, I don't think you can argue any longer for an implied exception during times of war.
2.11.2006 3:26pm
Lev:
Re: Medis 2.11.2006 1:25am

Actually, you are right that nothing in FISA itself makes following the procedures in FISA mandatory. Rather, that is done in 18 USC 2511, which you might want to take a look at (specifically focusing on 2511(2)(f)).


Presumably you are referring to this part of 2511(2)(f):

...and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.


That is irrelevant to the point. The point is that under 1805f, the government is specifically authorized to use electronic surveillance without a warrant so long as a judge of the FISA court is notified, and is not prohibited from using the results of that surveillance in intelligence matters so long as it is not used in

any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof


"Electronic surveillance, as defined in section 101 of such Act" is specifically authorized to be used by that Act, without a warrant and without application for a warrant, and the results of that surveillance are not prohibited from being used in intelligence matters.
2.12.2006 12:11am
Lev:
Re: jrose 2.11.2006 10:46am

In additon to 18 USC 2511, 50 USC 1805(f) says (my emphasis): In the event that such application for approval is denied [...] no information [...] shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees... Wouldn't any other manner cover intelligence?

An excellent point. "...used...in any other manner...", with respect to a "US person" would appear to apply to use in intelligence. That language, including the part you omitted, tracks

1801 Definitions...(h) ''Minimization procedures'', with respect to electronic surveillance, means.... -4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802(a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.


I point out that the case I was originally responding to was the case in which an Al Queda link in the US appeared and was in danger of disappearing before a FISA warrant could be obtained. One might pose the question as to whether any Al Queda contact in the US might reasonably allow the AG to make the required determination to allow the information with respect to a "US person" to be disseminated and used for purposes other than evidence in

any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof


Again I point out, the information may be collected and used without even applying for a warrant. True, it requires notification to a FISA judge, it requires a specific AG "determination," and it must be discontinued after 72 hours if a a FISA warrant is not obtained, but a FISA warrant does not appear to be required, nor does it appear it need even be applied for in order for the information to be used for intelligence purposes.

Of course, the AG could likely not reasonably make the required "determination" in all cases. But FISA itself recognizes that even FISA court authorized surveillance will go astray and inadvertently pick up unrelated conversations. That is why the minimization procedures definition, and others, contains language like this:

reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;


"...minimize the acquisition..." contemplates that "prevents the acquisition" is not possible.
2.12.2006 12:13am
Lev:
There is no link, at least no intentional one, in my 2.12.2006 12:13am

In typing the first carat blockquote, I typed carat a blockquote.
2.12.2006 12:16am
Lev:
Re: John Lederer 2.11.2006 1:47pm

One thing I don't understand is this:

the AUMF authorizes the use of the full power and capabilities of the US Armed Forces and of the US government, which include intelligence gathering, against the entity(ies) responsible for the Sept 11 attack; al Queda has claimed, and is acknowledged as having, responsibility for the attack; and the only actual reporting, at least that I have seen, is that the NSA program is directed at al Queda communications.

Yet, for some reason, the AUMF is not specific enough, or broad enough, to trigger a FISA exemption from its requirements.
2.12.2006 12:17am
jrose:
Lev,

Are you making the point that the emergency procedures of 50 US 1805(f) are a loophole in FISA that allow the AG to collect surveillance information for intelligence purposes without a warrant, and that loophole in some way undermines FISA or the role of the FISC?
2.12.2006 9:51am