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Congressional Reaction to NSA Briefing:
The Associated Press reports on some of the reactions from members of the House Intelligence Committee to their briefing on the NSA program. An excerpt:
  At least one Democrat left the four-hour House session saying he had a better understanding of legal and operational aspects of the anti-terrorist surveillance program, being conducted without warrants. But he said he still had a number of questions.
  "It's a different program than I was beginning to let myself believe," said Alabama Rep. Bud Cramer, the senior Democrat on the Intelligence Committee's oversight subcommittee.
  "This may be a valuable program," Cramer said, adding that he didn't know if it was legal. "My direction of thinking was changed tremendously."
Medis:
The stage seems set for some sort of legislative authorization of this program. But the Administration seems opposed, probably for the sensible reason that the 2001 AUMF argument would be really, really dead at that point.

Unfortunately, I fear this is all going to go the way of the McCain Amendment--Congress works out a compromise and passes a veto-proof bill, and the President signs it with a "I'll be happy to take this under advisement."
2.9.2006 1:13am
Just an Observer:
Medis,

Your expectation about the not-really-resolved results of a legislative compromise seems more than possible.

That is why I am still hoping Specter gains traction for his move to force a judicial test case originated in the FISA courts.

I think any "impeachment" talk is bluster. The real stick is getting judicial review of the merits. This prospect may be the stick that is moving the White House away from its cocky position of two days ago.
2.9.2006 1:58am
Fishbane (mail):
The real stick is getting judicial review of the merits.

Bingo. And I think this tactical backpeddle has a lot to do with why Gonzolez was pointedly not placed under oath (which seems to be a new pattern; we'll see if it lasts regime change in time). Sen. Spector cares about his seat, even if he likes being the "renegade" Republican. We'll see a narrow defense once this happens, which I'll wager has, at best, a pale resemblance to public administration comments about and descriptions of the program(s) that end up being considered in court.
2.9.2006 2:13am
Medis:
JaO,

I agree--I hope Specter can pull it off,
2.9.2006 2:17am
Bruce Hayden (mail) (www):
Moving over to this brand new thread, with the same perps.

I agree that the threat of impeachment is bluster. I mentioned in the previous thread that if President Bush is impeached, he would be replaced by President Cheney, who, with the retirement of John Ashcroft, is the biggest bogeyman of the left. If they were worried about having an oilman in the White House, then what about the former CEO of Halliburton?

But things would be worse. Who would he pick as his VP? The logical choice is Sec. of State Rice. Possibly Rumsfeld, but much more likely Rice. And where does that leave the Democrats? No way can they keep her from being confirmed. No Republican would dare vote against her, and any Democrat who did would be risking some of the African-American vote. So, where would the Democrats be in 2008? Who would they run against her as the sitting Vice President? And if Cheney could hang on through the 2006 election, then resign for health reasons, the Democrats could face almost ten years of President Rice.

No, deep down, the Democrats want to keep Cheney out of the Oval Office and Rice at Foggy Bottom much more than they would like to see the removal of George W. Bush.
2.9.2006 3:42am
Bruce Hayden (mail) (www):
I think that the comment above is indicative of what I have been saying all night - that every one here is operating on limited information in reaching all their dire conclusions (and, count me in there too). I think that this is one Democratic Congressman who might just buy into Intelligence Committee oversight as a way out of this entire mess.
2.9.2006 3:47am
Noah Klein (mail):
Bruce,

I think you are right. I just wish that the Bush administration would have thought enough of their co-equal branch of government to include them earlier.


Noah
2.9.2006 4:11am
volokh watcher (mail):
A judicial opinion would be valuable.

But let's not fool ourselves. Such an opinion would only cover "the program described by the President" (or words to that effect).

We'd be, to borrow Alito's proposed Roe strategy from his 1985 OLC memo, dealing with incremental (or granular, take your choice) movements on the continuum of Bush's asserted "war time" CIC power.

Furthermore, absent a leak, we'll never know what "new, untested program pursuant to the President's CIC power" is being used.

With rubber-stampers out there like Roberts, Sessions, Grassley, Kyl, Cronyn, Allen, etc., America is at the mercy of those in the Administration who decide what to tell the gang of 8.

I'm not nearly as sanguine as the earlier posters seem to be.

For all I know, someone in the OLC will spin-out a memo saying, in substance, "under the 'Unitary Executive' theory, no legislative or judicial act can interfere with the president's operational judgment during wartime; therefore, not even an Art III judge, resolving a 'case or controversy', has anything meaningful to say" except in regard to the particular facts of the particular program as applied to a particular individual. Any application of the ruling beyond those circumstances would admit a pre-9/11 mindset.

Cheney's already staked out the Administration's position. He (they) have all the legal authority they need to eavesdrop on Americans. That authority, logically and in spite of Gonzales's "we've not yet fully analyzed it" meme, extends to: (1) planting bugging devices without warrants, (2) physical searches, (3) warrantless, unlimited detentions without hearings, (4) torture [see President's Signing Statement on McCain Amendment], (5) termination with prejudice of persons for whom "reasonable belief" [Hayden's standard] exists to conclude they are terrorists.

Listen closely to Bush's political parry about dissent -- his nearly explicit subtext is those who disagree with me are criminally aiding the enemy. If Bush's OLC people -- and, more important Cheney and Addington -- don't believe the 4th Amendment limits a president's CIC power, why would anyone think that the 1st Amendment, which speaks only about Congress enacting no law . . . , limits Bush's CIC powers.

In fact, then-Judge John Harlan -- a favorite Justice of nominees from Souter to Roberts to Alito -- said in United States v. Flynn, 216 F.2d 354, 366 (2d Cir. 1954), that:

Where a conspiracy to destroy the Government by force or violence is involved, we think that the ‘clear and present danger’ concept . . . connotes no more than that the setting in which the defendants have conspired is such as to lead reasonably to the conclusion that their teachings may result in an attempt at overthrow.

It's not a leap, if you're an administration whose view of CIC power is plenary and whose view of Congress is as just another advisor, to borrow, modify, and extend the (overly) celebrated Harlan's "clear and present danger" test to stifle dissent by detaining "those liberal, anti-military, pre-9/11 mindset" dissenters whose public diatribes against the administration clearly aid, abet, and give comfort to our enemies.

Bush's rhetoric has tested this idea with the public. I'd not be surprised that it's been polled. And how can any (good, law-abiding) American be against the detention of those in our midst deadset on aiding the enemy -- especially those good American's who, if they've not done the same, have nothing to worry about.

Pretty chilling stuff. But this administration has all but said this week -- through Gonzales and Cheney -- they have unlimited CIC power to do for America what parents are obliged to do, and not do, for their very young children.
2.9.2006 4:11am
davod (mail):
In an ideal world there would be no secrets. We do not live in an ideal world.
2.9.2006 5:21am
davod (mail):
Everyone is complaining about secrecy of the NSA program. Does anyone have anything to say about the hypocrisy involved in thbe whining of the Senators.

Does the Senate divulge what goes on in its own committees. The public knows only if someone on the committee wants to make a political point.

How many hidden ways are there to put a hold on something without the public knowing who is doing it.
2.9.2006 5:34am
colts41 (mail):
davod:

The difference, IMO, between Senate Committee secrecy and the administration's secrecy is this.

The laws passed by the Senate (and House) are published for all to see.

Not so of the administration's secret spying program(s).

That's not to say that some Senators aren't hypocrites about different things. I agree entirely with that.
2.9.2006 5:40am
davod (mail):
Colt's 41:

You miss my point entirely. The legislation doesn't matter. It is how they get to it and what gets cancelled that we never here about. Something gets stopped or delayed and you never know why. The secret holds, the backroom deals, that is what you never see.

A simple example is judges. Some never come to the floor, why - no reason is given, they just have not come out of committee.
2.9.2006 5:51am
colts41 (mail):
davod:

I see your point better now, with the clarification. Thank you.

Still, I think it's apples and pears.
2.9.2006 5:54am
DRS:
NSA SURVEILLANCE:
Trust the Executive Branch, but (Digitally) Verify

First Blush Argument for an Independent Entity to Digitally Audit Executive Branch Surveillance Activity for Comport With the Constitution and Derivative Laws

The Intel briefing was an academic exercise, as are court challenges under any claim made by any party.

A systemic information asymmetry regarding the actual nature, scope and methodology of digital surveillance operations and programs exists between the Executive and the Legislative Branch. As a consequence, the People through their elected representatives, "...cannot know what they do not know..." about actual the depth and breadth of NSA type programs, regardless of the quality of briefings or hearings held and court cases won.

To remedy this imbalance, and for the same reasons underlying the creation by Congress in 1921 of the Auditor Generals Office/ Congressional Budget Office, Congress should draft and enact legislation to fold the functions of the NSA Inspector Generals Office into the Congressional Budget Office, thereby placing digital surveillance audit authority and capacity outside the purview and control of the Executive branch. The CBO "Digital Surveillance Audit Office" would provide ongoing reports of its findings to the "Gang of Eight."
———-
LEGISLATIVE BRANCH DEJA VU:
The Sept. 11 commission, in their final report, stated they were concerned that the expansion of Executive branch powers needed to fight terrorism might threaten fundamental Constitutional civil liberties. In response, the intelligence reform law of December 2004 included provision for creation of the "Privacy and Civil Liberties Oversight Board," which would be appointed by the President. The "Board" has yet to even hire staff. Only 1.5 million dollar has been provided as a start up budget. In light of the NSA surveillance issue, a substantially more robust approach to review the Executive branch is in order.

LEGISLATIVE BRANCH DEJA VU ALL OVER AGAIN:
In 1921, to regain Constitutional power it had ceded to the Executive branch and for the same reasons extant in the NSA issue, Congress created the Office of the Comptroller General. Because of systemic information asymmetry, Congress needed an an ongoing independent source of information in support of its Constitutional authority:

Under the present plan the Congress has no power or control over appropriations after they have once been made. It has no knowledge as to how expenditures are made under these appropriations, and inasmuch as the Comptroller of the Treasury and the six auditors owe their appointment to the President, they could not hope to hold their positions if they criticized wastefulness or extravagance or inefficiency in any of the departments.(Emphasis added.)
H.R. Rep. No. 67-14, at 7. [Also see Budget and Accounting Act, 1921, ch. 18, 42 Stat. 20 ("1921Act").

The 1921 Act eliminated the office of the Comptroller of the Treasury. It granted to the GAO powers previously held by the prior Executive branch Controller of the Treasury. Congress retained for itself the power of appointment of the Comptroller General."

TRADITIONAL SCOPE OF LEGISLATIVE OVERSIGHT &INVESTIGATIVE AUTHORITY OF EXECUTIVE BRANCH IS SWEEPING AND SUPPORTS CREATION OF SURVEILLANCE AUDIT OFFICE IN LEGISLATIVE BRANCH:
The Courts have long held that Congress may investigate any subject "on which legislation could be had," McGrain, 273 U.S. 135 at 177 (1927).
The oversight and investigative power of Congress has been held to be ".....as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution." Barenblatt v. United States, 360 U.S. 109, 111-12 (1959). The Appropriations Clause has been held as designed ".....to assure that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good and not according to the individual favor of Government agents." OPM v. Richmond, 496 U.S. 414, 428 (1990); "These difficult judgments involve "not only legislative specifications of money amounts, but also legislative specifications of the powers, activities, and purposes . . . for which appropriated funds may be used." See Kate Stith, "Congress’ Power of the Purse," 97 Yale L.J. (Citations taken from brief filed by Appellant Controller General in WALKER V CHENEY.)

CONGRESSIONAL OVERSIGHT AUTHORITY OF PRESIDENT'S NSA DECISION AND ORDER AS COMMANDER IN CHIEF:
The Executive branch asserts the President retains the authority to unilaterally decide and order that NSA conduct warrantless surveillance under independent authority granted him as Commander In Chief of the military through Article II. The President similarly claims Congress granted the Executive branch broad authority thorugh the "necessary and proper" clause of the Authorization to Use Military Force. Congress should agree with the premise supporting both claims: NSA surveillance is the modern weapon equivalent to the traditional army and navy, or a "fundamental incident of war." As so construed, the Constitution exexplicitlyrovides Congress with the authority to regulate and audit use of NSA "surveillance weapons."

Article I, section 8 of the Constitution explicitly grants Congress the authority to "....make Rules for the Government and Regulation of the land and naval Forces." By application and extention of the President's own argument that digital surveillance is a modern day equivalent to land and naval forces, Congress retains the power to conduct indepnedent onging audits of the National Security Administration digital surveillance programs.
———-
INFORMATION ASSYMETRY:
The digital surveillance information assymetry is both systemic as well as a function of characteristics inherent to digital surveillance. The Executive branch retains tautological control of all means of conducting digital surveillance collection and use or of auditing surveillance operations. Congress has no alternative source of information to independently determine the veracity or completeness of statements made by Executive branch officers at the hearings.

Characteristics inherent to computer based digital surveillance serve to worsen the co-equal branch information assymetry. Supercomputers operating continuously at teraflop speeds process, collect and generate quasi-infinate amounts of data. This presents an audit challenge that can only be overcome through ongoing digital audits and application of statistical sampling methodology.

CHALLENGES IN COURT AND TRADITIONAL OVERSIGHT MECHANISMS ARE PROBLEMATIC:
Because the Executive branch has tautological control over all information, Officers of this or future administrations retain the capcity to intentionally and selctively choose the extent to inform, or selctively misinform or selectively withold information from the Legislative as well as the Judicial co-equal branches. As a consequence, regardless of the outcome of Court challenges based on any claim, and no matter how probative and partcularlized the questions raised at hearings or at briefings, the information imbalance makes the effort as well as the oputcome Constitutional window dressing.

DIGITAL AUDIT CAPACITY EXISTS:
Presently, the Executive branch audits itself, primarily through the Inspectors General Offices resident in each surveillance agency. For example, the NSA IG's office conducts ongoing digital and phyical audits of Executive branch digital surveillance programs. Protoclos limiting computer based surveillance methods or limiting use and access of collected data as well as digital audit functions that report on digital activity outside defined parameters are in place in the NSA Inspector Generals Office.(See "Information Oversight: Practical Lessons from Foreign Intelligence," by Joel F. Brenner, Inspector General, National Security Agency/Central Security Service. Heritage Lecture #851, Sept. 2004)
——
WITH OR WITHOUT THE PRESIDENT:
As "First Branch," the Framers provided Congress the unilateral capcity to create an independent Surveillance Audit Office with or without the Prsedient's approval thorugh two thirds vote of both houses.
——
NSA type programs must go forward. Because "place is irrelevant" so as to make traditional kinetic deterrence or retaliation irrelevant, in this war with transnational terrorists set in a globalized telecommunications environment, information is king, and we MUST use "...all possible resources to monitor, listen to, analyze, and act against potential threats." NSA type programs are therefore a national security imperative. However, a Constitutional imperative is embedded in such programs.

Congress must be, and must believe it is, functionally capable of conducting Constitutionally mandatory oversight of national security imperatives such as the NSA surveillance programs. As it stands, that is a technical and human impossibility.

War or no war, Congress should not continue to entrust the integrity of the Constitution to the Constitutional altruism of this or any future pool of Executive branch officers and employees.

Comments/Suggestions Appreciated. Please give thought at any rate, to substance of the idea. Perhaps it will become an issue in 2006 elections, or 2008 Presidential Election. The People and the Constitution deserve nothing less.
2.9.2006 6:10am
minnie:


I just attempted to post a link, but I'm not sure how, so sorry if it doesn't come through.
2.9.2006 6:58am
minnie:
Well, I can't figure out how to put the "url" and "short description" in bold letters (is that necessary?) because it rejects that when I try, so I will separate it for now, and hope others will both to type it in instead of pasting it in.

http://obsidianwings.blogs.com/obsidian_wings/ 2006/02/ cry_the_beloved.html

I strongly urge everyone (not you davod) to please go to this link and read it, especially Volokh Watcher. I really think it says it all. It starts out a little slow, but is really worth reading in its entirety.

I am hoping that Orin and Eugene and the rest of the moderators on this site have open minds, and can see what is happening: the death of America as we know it.

I also direct people to the writings of Paul Craig Roberts on the lewrockwell.com site. This man was one of the most important economic architects of the supply side Reagan Revolution, and Reagan's assistant Secretary of the Treasury. He is no lefty partisan. He is still a supporter of Bush Sr., and isn't even sure our President himself realizes what is happening. Read his old articles to see his credentials as a true blue Republican conservative. Apparently, he began to see what was happening sooner than most, and wrote an article at the time we invaded Iraq called "What are we doing?" Prescient guy. If you read his recent articles on the lew rockwell site and that doesn't do it for you, then I guess nothing will. But I'll have tried.
2.9.2006 7:35am
Medis:
Bruce,

I doubt the Democrats are worried about the Gerald Ford scenario.

But I do agree that an actual impeachment would be bad for the country, regardless of whether it was good or bad for any given political party.
2.9.2006 8:12am
AppSocRes (mail):
Looks like this going to turn into another Democrat/MMM "Oh, never mind." moment. Anyone remember Valerie Pflem?
2.9.2006 8:23am
Medis:
AppSocRes,

I suspect Scooter Libby does. Well, at least now that his memory has been refreshed.

But anyway, this is not just a Democrat moment.
2.9.2006 8:32am
abb3w:
In an ideal world, I would think that the evidence that Bush distorted intelligence prior to the Iraq war, ordered a wiretapping program that appears to have exceeded defined statutory limitations, and the report that President Bush refered to the constitution as "a goddamned piece of paper" would be enough to at least get the House Judiciary committee to impanel a subcommittee to investigate impeachment... for, say, Lying to Congress, Felony Wiretapping, and Violation of the Oath Of Office. I wouldn't expect, given the Republicans in control of the House and Senate, necessarily to impeach or convict; but I'd expect at least an active committee looking at it.

In practice, and with Karl Rove riding herd, that isn't going to happen. The debate on Iraq is relatively moot, since we can't leave Iraq without risking making the situation much worse than it is now or when we started. Given the worries over terrorism, an expanded wiretapping law is a not unreasonable expectation; it may even allow for the capabilities Bush wants, while making another FISA-court style rubber-stamp token effort towards respecting the 4th amendment.

But it's that report about Bush's outburst that worries me the most. The Constitution is the highest law of the United States. His remark when taken together with the other two problems imply that he does not respect the essential principle of The Rule Of Law.

President Bush is an evangelical Christian fundamentalist, while those rioting over the Danish cartoons are Islamic. Is it too much of a reach to wonder if that fundamentalism may be a common contributor to that disrespect for the Rule Of Law?
2.9.2006 8:53am
Medis:
On the impeachment issue:

Just an aside, but I think it is important to recall that Republican Senators on the Judiciary Committee, most notably Senator Graham, are already making the case that this issue goes well beyond wiretapping, and specifically implicates the torture issue. So, if we are speculating about how impeachment could actually become politically viable, even for a Republican-controlled Congress, I think it may be useful to remember that the McCain Amendment had overwhelming bipartisan support, and overwhelming popular support.

That said, I doubt Senator Graham wants impeachment (and neither do I). But I think Congress may well be willing to threaten impeachment over these issues (broadly speaking) in order to protect measures like the McCain Amendment. I think what they would be looking for would essentially be a public withdrawal by the Administration of this entire line of reasoning, including as applied to the McCain Amendment.

And if the President gave them such assurances, and then got caught violating the deal ... then impeachment becomes, I think, a real possibility.
2.9.2006 9:04am
volokh watcher (mail):
AppSocRes:

Assume a democrat wins the next presidential election. Or, for that matter, let's say it's a republican.

Now let's further assume neither hypothetical president is as well-intentioned and restrained in the exercise of his C-in-C powers as George Bush.

Let's further assume this new president decides to indefinitely detain people who dissent too vociferously -- too much "aid and comfort" to the enemy. [Americans who don't dissent have nothing to worry about, as they're not giving "aid and comfort" to the enemy, right?]

Lock a few of those dissenters up, and who will dissent? You? For how long?

I mean, we're at war. The President's powers as C-in-C are plenary in these circumstances. Neither Congress nor the Court can tell the President what to do in wartime. That's the position of this administration and numerous posters on VC.

And America is the battlefield. Right? Posters insist that's the case.

No one could argue seriously, we're told, that on the battlefield, Congress can tell the President either how to fight the war. Or for which specific individuals in this country are or are not the enemy. That's the exclusive the job of the unitary executive, right?

Do you think this can't happen here? Do you think Jorge Padilla's indefinite detention is sui generis?

And with the recent Graham amendment, no one held at GitMo -- where these dissenters would be sent -- can use habeas to get before a US Court, at least not until a military commission finishes with him.

Like I said, maybe the next president won't be as restrained as Bush in the exercise of what too many people have insisted is plenary, untouchable C-in-C authority.

Do I sound alarmist? Damn straight.

And based entirely on, at least, a reasonable belief..
2.9.2006 9:04am
Apodaca:
For the record, I object strenuously to the statement attributed to the President. He should instead have referred to it as a "a goddamned piece of parchment."
2.9.2006 9:19am
CharleyCarp (mail):
The Admin is not, and has never been, afraid of Congress -- including members of the other party. It has sufficient means to blunt/survive anything that might come from that quarter. (This is what we're paying Mr. Rove for).

All talk of impeachment has been idle, from the beginning. (Or brought up by supporters of the President, as a taunt).

The Admin is, and has always been, afraid of the courts. Even with the current complement on the SC, it cannot count on getting its way in cases like Padilla, didn't get what it wanted in Hamdi, and if you read the SG's brief in Rasul -- no punches were pulled in describing the harm to the war effort that would come from ruling for petitioners -- and then the decision, you see that the fear is justified. And now, as Prof. Kerr suggests, the Court is likely to reject Congress' somewhat lame attempt to overturn Rasul.

Mr. Rove isn't powerless, of course, but most judges aren't afraid enough of the charge of judicial activism to shrink from following the law.

The Admin is and should be scared to death of the prospect of judicial review of its surveillance program(s). It will make any compromise it can to prevent this. I would guess that it will be able to derail Sen. Specter's current proposal. But it may not be able to prevent all review: convictions already had based on the surveillance program may get reviewed, and if anyone can find out that they were a target of improper surveillance -- and this may well come out, eventually -- the civil action provisions of FISA are there for a reason.
2.9.2006 9:21am
Stephen Iverson (mail):
Reading the comments is better than smoking dope. Where does ANYBODY think that there is the remotest chance of impeaching Bush? And why are the courts so important? Congress was briefed and gave their implicit consent. The law was followed period. And FISA should never have been passed and was signed by the WORST president of this century.

The Admin is doing what it was elected to do and this talk of exceeding authority is law school arcana. Sorry guys (and gals) but the SCOUSA and the courts are a CO-EQUAL branch of gov
2.9.2006 9:41am
farmer56 (mail):
I agree with Bruce. Same topic, same perps.

Medis spelled this out in his own words,

The president is ignoring the law as 'some' see the law. so quit quoting law that is already being ignored.

Change the law. Why? it will also be ignored.

Impeach the President.

Count my words. not very many. And they are authored by Medis.

And I repeat myself; This is legal masturbation.
2.9.2006 9:42am
Some Guy:
volokh watcher--

No, any SCOTUS ruling would be on a constitutional issue, so it'd one that the administration couldn't memo their way out of.

Impeachment is just idle talk right now--it would only get serious if there were a SCOTUS ruling against the legality of the program. Technically, though, it is a threat, however distant at this point.
2.9.2006 9:53am
George Gregg (mail):
I have a strange sense of being a witness to a grave injustice unfolding -- an injustice to my country -- while my representatives are generally busying themselves with wordsmithing their CYA excuses for why they did nothing to prevent it.

I now have an almost palpable dread of being enshrapneled by sundered bits of the US Constitution when it is irretrievably shattered by a "unitary executive", to the loud and approving chorus of his partisan supporters, for the sake of "security".

It sounds melodramatic, but this is the way governments, even long-lived ones, explicitly fail to uphold the original ideals of their founding inspiration and willingly step into the path of decay. And that this process has so many enablers is profoundly saddening.
2.9.2006 10:08am
Houston Lawyer:
What a fairy tale this string has become. President impeached for conducting wiretapping of suspected foreign enemies!!!!!!! Personally, I'd prefer Cheney as President. Just the thought of it makes me laugh.
2.9.2006 10:11am
John Lynch:
Thank you Houston, I also was thinking we have a problem here.
2.9.2006 10:20am
Medis:
I take it from the somewhat desperate tone of the pro-Admininstration commentators that they see the basic framing problem. If the discussion remains a pure policy question about whether warrantless surveillance of terror suspects is a good idea, the Administration is in fine shape. But if the issue gets expanded to whether the Administration can generally ignore the law in the name of its "inherent war powers," both Congessional and popular support for the President is likely to drop to Nixonian levels, at which point even impeachment is possible.
2.9.2006 10:20am
AnonLawStudent:
Both the right and the left, in their demands for legislative and/or judicial validation of their respective positions, put the nation at risk of getting what they ask for. As things stand, the President may dance dangerously close to, or even step over, the legal line, but not routinely for fear of the consequences. The option is there when absolutely necessary (press reports indicate relatively low numbers over the history of the wire-tap program), but not on a routine basis. If the President ends up on top, civil liberties may take a severe hit; if Congress and the left win, the nation's ability to effectively fight radical Islamicism will be severely hampered. I personally am quite happy with the status quo uncertainty - measures are available, but questions as to their legality keep their use limited.
2.9.2006 10:24am
Steve:
The problem with oversight of the administration's surveillance is a factual concern, not a legal one.

If the extent of the program is as the President currently describes it, and there is some legal or constitutional problem with it, the worst that will happen is that the program will have to be modified slightly or Congress will have to pass new enabling legislation. Congress does unconstitutional things all the time and no one gets impeached for it.

But an independent review will require the administration to lay all the facts on the table regarding the extent of surveillance. If it goes well beyond what we've been told, that's a problem that will not be easily avoided.
2.9.2006 10:42am
Jack John (mail):
a. I think the likeliest outcome is legislative approval that is not authorization, i.e., a non-binding resolution that affirms the wisdom of the President's program. If you do not like the word "wisdom," choose a less 'inflammatory' one. I'm not licking the President's boots here.

b. Medis' libertarian alarums to the contrary, most people are of mixed mind about every issue implicated by this scenario, and would like some closure, even a simple non-binding resolution and/or the promise of more Congressional oversight would do the trick. (Though I'm not sure why Congressional oversight is so valued these days; we have federal agencies precisely because politicians are horrible and non-partisan or independent oversight of important matters. The non-delegation doctrine has been eviscerated for precisely because of that pragmatic concern.)

c. I have a feeling that a thorough response to John Sensenbrenner's questionnaire should satisfy most critics and haters of the Executive branch, as it is a good compilation of all the criticisms thus far and answering it definitively would be rather easy. It would be a good position for the administration to say, "We answered all these questions before in our public reply to Sensenbrenner's questionnaire, you can find it online at www.stop-asking-pointless-questions-Medis.gov."
2.9.2006 10:52am
David Matthews (mail):
Folks have the impeachment scenario all wrong. The Democrats gain control of the House in 2006. Bush and Cheney are both impeached, since they are both complicit. They are both removed. Nancy Pelosi (now the Speaker of the House) becomes president, just like Geena Davis (our first female president has to get there by circumstance; America would never vote one in, right?)
2.9.2006 11:05am
Justin (mail):
I agree with those of us who say impeachment hurts Democratic chances at the White House. I simply don't care. The Constitution is more important than the 2008 election, and I cannot see any other way of preventing the unintentional leviathon that is the executive branch from respecting said legal document.
2.9.2006 11:10am
Bruce Hayden (mail) (www):
It does look like things calmed down a bit after I finally went to bed last night - maybe because I wasn't pouring gasoline on the flames any more.

To start with, I have never believed that the President is trying to make this a Separation of Powers issue, with either of the other two branches of government. But I am saying that he is playing a different game than anyone else is at the table. Some have suggested that he is playing chess while the Democrats in Congress are playing checkers. But I think a better analogy is that he is playing poker while they are playing bridge.

And another thing to keep in mind is that the Administration is being run by a bunch of businessmen, not lawyers. And while you all were learning about Marbury v. Madison in law school, the President was learning about game theory in business school. When someone mentions that case in front of a bunch of lawyers, there is a hush as we all give it a moment of silence in respect. When someone mentions the case in front of the President, he has to get the AG to explain it to him. Also, businessmen don't think of lawyers as gods, but rather as tools. Their job is not to tell him what he can and can't do, but rather to tell him how to make what he want to happen, happen, and then to expedite it. (I should add that Gonzoles understands this, which maybe one reason he is AG and Ashcroft is not. The later was a lawyer first, and an employee second).

What I have been trying to do for the last couple of weeks is try to point out the difference between how businessmen think and lawyers think. I really don't think that the Administration has any intent in turning this into a Constitutional crisis. On the other hand, I also am confident that the Administration isn't quaking in their shoes at the thought of impeachment. They have inevitably done what I have tried to do - game it, look at the what might happen if A does X, then B does or does not do Y. And if B does Y, what happens if C does Z or doesn't do it, etc.

I think you can see the Administration's prepositioning here. I have no doubt that the President's throw out line that when al Qaeda calls here, they want to know why, was well researched and scripted. That he started the meme, and the rest of the Administration has picked it up is significant. They also have the fig leaf of a colorable (though, highly debatable) legal argument in their defense.

What I see is much akin to whenever I have to write a noninfringement opinion. The clients don't usually really want to know if they infringe or not, but rather want, if they possibly can, to get legal cover against willfull infringement. So, if you want to get repeat business, you quickly learn to call up the clients after making your search, and give them the good or bad news over the phone. You then ask if they want it in writing. They invariably do if the opinion would show non-infringement, but the smarter ones don't if it would show infringement - since, of course, such opinions are discoverable (and would bolster the willful claim). I see the DoJ and AG doing just that for the President - giving him legal cover from a claim that he willfully broke the law.

I do appreciate Medis taking up some of these game theory issues and trying to point out where my calculations may be suspect. After all, I don't have any more information than anyone else does here (and often less), except, maybe having taken similar business school classes that teach game theory. Mostly, I am just trying to get everyone thinking out of the legal box that you enter when you start law school, and to understand a bit more about how this Administration thinks and operates. Remember, they approach issues like this as businessmen, not as lawyers. Lawyers are the employees. They are the CEOs who hired the lawyers.
2.9.2006 11:31am
colts41 (mail):
Bruce:

I appreciate your point about Bush: businessman vs. lawyer.

On the other hand, the CEO and CFO of Enron are being criminally prosecuted as we write, even though a bunch of accountants and lawyers apparently suggested what they did was okay.

Another case of businessmen vs. lawyers.

The problem, as I see it, is the Constitution is not a "business plan" that can scrapped and re-written when the quarterly results fall short of expectations.

It's a corporate charter written by lawyers because neutral principles matter in society.

Bush and Cheney come from the American corporate business culture that has little regard for employees and shareholders. It's all about the CEO (look at the salaries CEO receive now).

Look, I agree politics is all about game theory. And Bush may be engaged in it now. Just as Clinton was every day of his administration. And Bush I, and Reagan v. USSR, etc.

And, apparently, so were the Enron folks -- before the company went bankrupt.
2.9.2006 11:43am
Bruce Hayden (mail) (www):
Dave Matthews

Your scenerio doesn't work. First, it is unlikely that the Democrats can leverage this into control of the House. And, more importantly, there is no way they are going to get 67 Senators voting to put Nancy Pelosi in the White House. That would by necessity require at least some Republican votes, and even that assumes that the Democrats pick up most of the Republican Senatorial seats in the next election - highly unlikely given that many of them are running in dark Red states.

No, even if 67 Senators could be persuaded to vote to convict President Bush, the Republican controlled Senate is just not going to convict Cheney too before a Republican is confirmed as his VP. And, even if they lose control of the Senate this year (which I think is statistically unlikely), the remaining Republican Senators aren't going to hand the White House over to the other party. Esp. over this.
2.9.2006 11:43am
Bruce Hayden (mail) (www):
That is where the colorable arguments come in. At Enron, I don't think that they were colorable. They didn't have an AUMF that stated in the preamble:
Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,...
Yes, that is in the preamble, and not in the body of the resolution. And, yes, a lot of good arguments can be made that it doesn't implicitly amend or override FISA. But it is cover. IMHO, a lot more cover than the CEO and CFO at Enron had.
2.9.2006 11:54am
KeithK (mail):
Very good post, Bruce. I think you've got this right. The President knows what he wants to do - which in his mind is the best way to protect our country - and is looking for the legal cover to do it. This is very different from starting with the Constitution/law and seeing what it allows.

As for impeachment over the wiretap issue, aside from the fact that there's no chance in hell of it happening, I just don't see the argument. From what I see in the media, the general consensus is that the goal and results of the program are a good one. The argument is simply about process. I don't care how many Dems are in Congress, you don't impeach someone over process when the goal and motive is proper in the eyes of the public.

All this is is the age old battle between the Executive and Legislative branch for power and authority. It's been going on for two hundred years and god willing will go on for another two hundred and more. The battle and who wins matters. But we're not eviscerating the Constitution.
2.9.2006 11:55am
Richard Aubrey (mail):
If there is no "there" here, a good many folks are going to be disappointed.
This has been a beltway-lawschool argument for the purpose of bashing Bush. If we knew what actually happened, instead of pretending we know for certain it was "domestic eavesdropping", the situation would be different.
But the actual facts are not at hand.

What seems to be the case is that calls from overseas are in question. This strongly suggests it is not a "domestic" issue. The phone numbers flagged are taken from al Q Rolodexes and similar sources. This strongly suggests a reasonable or probable cause. Partly because the likely person on this end is not a U.S. Person, anyway.

Consider. It's said there are twenty million illegal immigrants in the country. If we figure the same legal immigrants who have not gotten permanent residence status, a random call has a thirteen percent chance of hitting a non-U.S. Person. That's about one in eight. So my numbers are wrong. Maybe one in ten. Is one in ten by itself enough to trigger probable cause? Likely not, but the point is that the folks at this end are not guaranteed to be U. S. Persons, especially if their numbers are in the al Q database.

Probable cause doesn't mean guaranteed every time. It means likely, with the clear admission that it might not be true in a given situation after the facts are in. Nevertheless, probable cause is allowed. So, while it's possible an al Q guy may be calling his, say, ex-mistress for some phone sex, it's not the way to bet. And the concept of probable cause does not require the court to bet that way.
2.9.2006 11:56am
Medis:
Bruce,

I wish the major figures in the Administration were in fact operating as businessmen. Business promotes efficiency because of the competitive pressures of the market. In other words, bad ideas lose out because they lead to inefficiencies, and good ideas win out for the opposite reason.

And for that reason, a good CEO has to avoid the dangers of groupthink, yes-men, and the like. In other words, a good CEO has to foster an internal competition of ideas, because otherwise the competitive pressures in the external market will create a competitor that will outcompete the CEO's business. And, of course, whenever possible a good CEO should appropriate any ideas in the market that seem to work.

Unfortunately, the Administration isn't working in a competitive environment--they have a monopoly on Executive power. Indeed, they also have little indirect competition from Congress because of their control of the GOP (although that appears to be weakening). Further, they have adopted a policy of promoting cronies and yes-men, and dismissing experienced experts and dissenters, which has stifled any internal dissent. And now they are trying to cut off all external checks as well, and seem uninterested in ideas from any other source.

This entire approach is antithetical to good business practice, and predictably will lead to bad decisions and inefficient government. It is a wonder that a self-made and highly successful business man like the President would not understand all this ... oh, right, he wasn't that sort of businessman at all.
2.9.2006 11:58am
Anderson (mail) (www):
Good people, there are all kinds of ways the Bushies could resolve this, if they've really been acting in good faith.

For ex, let's get the current &last 2 presiding FISC judges as a secret review panel of what's been done, &let's give them COMPLETE access to all details of covert programs. Let them see every name of everyone surveilled, etc. And then let them make recommendations about what's worthwhile and what can be done to fix the law, if need be.

We're not going to see this, or anything like it.

Because the Administration has been abusing its powers. Like it's abused everything else since 9/11.

These are not people you want to trust with your dog for the weekend, let alone with an unreviewable super-secret domestic spying program.
2.9.2006 12:05pm
Bruce Hayden (mail) (www):
Let me add to my last point that what we know of the NSA program is that it is explicitly aimed at "deter[ring] and prevent[ing] acts of international terrorism against the United States".
2.9.2006 12:06pm
David Matthews (mail):
Bruce:

"Dave Matthews

Your scenerio doesn't work."

I know. However, I do remember that there were some Democrats back in '73 who wanted to get rid of Nixon before Gerald Ford could be confirmed, in order to make Carl Albert the president. But that didn't work, either. And the Democrats controlled both houses of Congress. Both parties frown on legislative coups.
2.9.2006 12:07pm
Medis:
I'm pretty sure that if Bush and Cheney were facing removal, the Republicans would work out another Ford/Rockefeller combination to take over (in other words, generally acceptable people with a high reputation for integrity), and there would be a sequential resignation to effect this result.

But as noted, I hope none of this comes to pass.
2.9.2006 12:21pm
Just an Observer:
Bruce Hayden: I see the DoJ and AG doing just that for the President - giving him legal cover from a claim that he willfully broke the law.

I agree with this candid appraisal, and I think it is a shame. One of the great harms done to the system by Bush's overly aggressive attitude on the matter of executive power has not just been to separation of powers, but to the integrity of legal opinion within DOJ.

I have no experience dealing with the Office of Legal Counsel, but from what I have read lately the Bush administration seems to have eroded the ethos of objective professionalism that used to be there.

All administrations certainly influence the results of opinions at OLC. But there is a line, which I think you described in the sentence I quote above, and Bush has crossed it. Traditionally, that office has had the good-faith mission of explaining to the executive branch what the law is, not just what political officials can get away with.

A similar approach to legal aggressiveness on the general matter of war powers was exemplified in a quote by Gen. Hayden a couple of months ago in the Washington Post. Making a sports metaphor, he said "I will always have chalk on my spikes."

That attitude, by itself, might be considered admirable in a general. The systemic problem is that it is dangerous when there are no referees.
2.9.2006 12:23pm
Kovarsky (mail):
Bruce,

I would take Lawrence Tribe's command of constitutional law over the president's command of Nash equilibira.
2.9.2006 12:25pm
David Matthews (mail):
"generally acceptable people with a high reputation for integrity"

Even further afield, but can we still find two of them, in either party? (I'm exaggerating, but the folks with genuine integrity, like, say, Joe Lieberman, so easily get trampled under by the camera hogs trying for the appearance of integrity, like, say, Joe Biden. Or fill in your favorite pair from the other party.)
2.9.2006 12:28pm
Apodaca:
Bruce Hayden writes:
And while you all were learning about Marbury v. Madison in law school, the President was learning about game theory in business school.
That would be the same keen business acumen that served him so well as a captain of industry, yes?
2.9.2006 12:56pm
Jack John (mail):
I would take Lawrence Tribe's command of constitutional law over the president's command of Nash equilibira.

I wouldn't.
2.9.2006 1:01pm
Defending the Indefensible:
David Matthews,

How about Chuck Hagel and John Sununu for the Republicans?
2.9.2006 1:02pm
Medis:
David M.,

I agree that such politicians are an increasingly rare breed, but they also tend not to be the most famous politicians. So, while I can name some of my personal favorites among Republican politicians, I think they would be looking for some even less prominent folks.
2.9.2006 1:43pm
KMAJ (mail):
Bruce,

You give an excellent analysis of game theory and how this White House may be applying it. Some sought to dismiss it with flawed analogies to Enron, others sought to mischaracterize it as 'seeing what you can get away with' and one put forth the argument of needing varying opinions, claiming this administration does not engage in such practices, based on media talking points, and is thus inefficient.

The Enron analogy is so flawed it needs no rebuttal, the 'get away with' argument is an attempt to characterize what this administration is doing is a poor application of game theory. Game theory is never about what you can get away with, game theory is much more equivalent to a risk assessment strategy, after ascertaining what the objective or goal is, in this case, preventing another terrorist attack, they analyze the most effective strategy. The first parameter would be what are the options constitutionally available, further weeding out which are weak and which are strong options. The stronger options are then weighted for efficiency and effectiveness. The NSA surveillance program was decided upon because it satisfied both the efficiency and effectiveness requirements and, provided what we 'know' about the program is true, its narrow scope satisfied the legal requirements giving a colorable argument in its defense.

Those proffering the 'impeachment', 'dictatorship' or 'criminal intent' arguments are engaging in political flatulence, a malodorous pontification that obfuscates reality. It does not support one's argument, whether one likes Bush or not, to try to demean his character and, by insinuation, his intentions. This only reveals that the Bush haters are no different than the Clinton haters of the 90s, they are cut from the same cloth. I do not buy into the rhetoric of either, I think both love this country and are doing what 'they' believe is best. I may have disagreed with some of Clinton's policies, as I disagree with some of Bush's domestic policies, but I did not attribute them to 'evil intent', just as his inability to control his 'willy impulse' was not evil, just a character flaw, and not an impeachable one. He should have been censured, not impeached, for lying to a grand jury. Will the hate that has been promulgated by the polarization in this country ever abate ? I have serious concerns and think that this polarization could be an even greater threat than terrorism because it has invaded the body politic.
2.9.2006 2:10pm
Kovarsky (mail):
Jack John,

As you know, I normally ignore you, as do most other earnest and repeat participants who do not share your views here. But every once in a while, you say something new (but don't misread "new" to mean "insightful"), and in those limited cases, I'll respond.

So, I said:

I would take Lawrence Tribe's command of constitutional law over the president's command of Nash equilibira.

You said that you wouldn't. Was that a characteristically snide way of saying, "Yeah well, you know, that's just like your opinion man," or are you actually arguing that Bush's business smarts match Tribe's constitutional acumen? Try, for once, to separate the fact that you don't agree with Tribe's methodology from the more general question of his academic proficiency.

I know I'm going to regret acknowledging you, so to minimize that regret, you can forego responding if it's just the snide scenario, although I'm sure you won't.
2.9.2006 2:12pm
Kovarsky (mail):
Excuse me, I said "business smarts." I meant "game theory."
2.9.2006 2:14pm
colts41 (mail):
KMAJ:

I didn't mention Enron to make a point by "analogy" -- Lay/Skilling are indicted so Bush should be impeached then indicted.

I mentioned Enron to make the point that just because a businessman surrounds himself with a bevy of lawyers who give legal advice doesn't mean the business man is immune from prosecution in reliance on the attorneys' advice.

That's all.
2.9.2006 2:30pm
Jack John (mail):

Kovarksy: I said I would take Lawrence Tribe's command of constitutional law over the president's command of Nash equilibira. You said that you wouldn't. Was that a characteristically snide way of saying, "Yeah well, you know, that's just like your opinion man," or are you actually arguing that Bush's business smarts match Tribe's constitutional acumen? Try, for once, to separate the fact that you don't agree with Tribe's methodology from the more general question of his academic proficiency.



Yes, I think Bush has a better command of game theory, organizational behavior, and the theories of management of Peter Drucker than Laurence Tribe has command of constitutional law and theory. Yes, I think it is just your opinion. And, yes, I think Laurence Tribe's constitutional theories have been rejected in the courts repeatedly. He rarely wins cases, and when he gives oral arguments, he is pendantic and sophomoric at the same time. He is also a plagiarist.

Now, had you said Kathleeen Sullivan instead of Laurence Tribe, I might agree with you. But, then, she failed the California bar, and I have a feeling that Bush could pass it. After all, despite his dyslexia (or whatever it is), Bush has an 122 IQ, if I am not mistaken.
2.9.2006 2:32pm
Jack John (mail):

the more general question of his academic proficiency.



Just so we are clear, proficient academics need not plagiarize. Laurence Tribe is a plargiarist extraordinaire.
2.9.2006 2:34pm
Kovarsky (mail):
that was a smell test.
2.9.2006 2:40pm
farmer56 (mail):
Our nation is about to desolve. GWB is the reason. GWB is soooo stuuupid he is taking down the greatest nation on earth.

Bruce is making the most sense. He is saying the truth. being logical, thinking thru the process, looking at the big picture. Guess what? It dont involve a single lawyer.

First you decern a problem. Then, you formulate a way to fix the problem. Then, someone, our lots of someones have to get their hands dirty to implement the solution you formulated. And, like my son calling me to bitch about his car not working, I can talk about it for hours, but, nothing is getting fixed. So? Go to someone that has the power to put in a new intake gasket. Wow, imagine that the person that has the power to fix the problem, does!

Someone suggested that retrieve two ex judges to look at the intercepted data. Look people. These are not wire taps. Nobody is listening to phone calls. computers are being used to seek out key words and then dump the info into a file that is then reviewed by a person. 1000's of calls are done this way every day 1000's get dumped to get a look at by a real person. A tiny fraction get any attention. Of that tiny fraction a FISA warrent may be asked for several numbers to get 'tapped'. The frothing at the mouth about the end of our civilization, is proof that they have not a clue about what is going on.

But, why get a couple of judges to look at data? Why a judge? What elavates a judge to such a position? Dont have an answer do ya? Judges are just as coruptable. maybe more, than any person off the street.

Lawrence Tribe has more constitutional experience than a single person posting here. Hence he is smarter.
2.9.2006 2:45pm
Jack John (mail):
Not really, everything I said is in the factual record. Bush's IQ scores were reported in the AP, Bush's affinity for Peter Drucker was reported in the AP, Laurence Tribe's win/loss ratio in the Supreme Court is public record, Luarence Tribe's plagiarism is real and documented by Harvard University, if anyone doubts he is pednatic and sophomoric during oral argument, they can listen to his oral arguments on oyez, Kathleen Sullivan has a stronger win/loss ratio in the courts than Tribe does and that's public record, and she did fail the California bar. So I stated a number of facts against your opinion...how is that a smell test?

I argue with facts, you argue with opinions? It seems you're the stinky one, Kovarksy.
2.9.2006 2:45pm
KMAJ (mail):
colts41,

My point was that equating a businessman/CEO and legal advice on business practices is subject to far different legal constructs than government and legal advice on appropriate governance. It is easy to fall into the trap of using the 'bad big business' bogeyman to project a Nixonian 'bad governance' extension. Why is it necessary to try to insinuate the negative by offering up such examples ? I don't see the need or relevance to cast aspersions to influence debate. As I stated, the right was wrong when they did so with Clinton, I hold the same stance with regard to those who seek to do the same with this administration. To do so only further fans the flames of polarization in this country to the detriment of the country as a whole. Where once vitriol was the exception to the rule, it is now the rule, with civility being the exception.
2.9.2006 2:47pm
John Lederer (mail):
So on the relative scale of things how do the grounds for impeaching Bush compare to the grounds for expelling about 20 senators and maybe 80 house members for giving aid to the enemy during time of war?

Preposterous? Of course. Both are.

I would suggest that both the lefties and the righties stop fantasizing out loud. It just makes serious debate more difficult. Also, on the overall scale of things one would think that the lefties would realize that they are increasingly alienating the center -- you know, the part of the electorate that determines elections.
2.9.2006 2:50pm
Jack John (mail):
they are increasingly alienating the center -- you know, the part of the electorate that determines elections.

And the part of the electorate that prefers facts to opinions.
2.9.2006 2:52pm
farmer56 (mail):
Ya know.

It's a wounder the Nation has survived since the 60's When President Kennedy told his little brother Bobby, the AG, (didnt someone here accuse GWB of cronyism?)to wiretap the phones of Martin Luther King Jr.?

I bet someone has the name of the Judge that signed that warrent.
2.9.2006 2:56pm
Kovarsky (mail):
There was an extensive op-ed in either the Washinton Post in the last couple of days that explored the analogy between Enron and the Administration. I'm not saying whether the analogy's right or wrong, I'm just saying that it's there.

Although I am earnestly skeptical of the analogy, this was written before Bush "coincidentally" decided to reveal more information (by orders of magnitude) about the foiled 2002 terrorist on Los Angeles. And don't read too much political meaning into the term "coincidentally" - I don't mean to imply anything other than he happened to elect to reveal this previously secret information the day after the administration was forced to do a 180 degree about-face on their willingness to cooperate with a Congressional Inquiry into the NSA program.
2.9.2006 3:00pm
Jack John (mail):
I missed the 180 degree about-face.
2.9.2006 3:09pm
Jeek:
Bush has an 122 IQ, if I am not mistaken.

I hope this isn't a reference to this nonsense.
2.9.2006 3:10pm
Kovarsky (mail):
it's ok. you miss a lot of things.
2.9.2006 3:10pm
Kovarsky (mail):
Jeek,

I doubt he is referring to that, as that piece puts Bush's IQ at 91. It's always funny when fake studies like that get play.
2.9.2006 3:15pm
KMAJ (mail):
Kovarsky,

I think a '180 degree about face' is an exaggeration. While it may be an acquiessence, it certainly is not 180 degrees, or even a 90 degree shift. I do not think you will see a similar briefing given to judiciary committees. What will be interesting to see is if there are more leaks that result from these briefings. If that occurs, it will play into the executive branch's hands and reflect negatively on the legislative branch.
2.9.2006 3:18pm
Kovarsky (mail):
KMAJ,

Fair enough. I chose 180 degrees because it was the most succinct way of expressing the administration's apparent shift from Cheney's statements on Mon/Tues night and its cooperative towards the end of the week. My point wasn't really weather it was 90 degrees or 180 degrees, my point was that

(1) the administration was obviously shifting course

(2) it was likely in recognition that they were not "winning" along every dimension by as much as they thought they were, and

(3) the timing of today's revelation of classified materials is, in keeping with the thrust of the Enron article with which I do not totaly agree, seemingly an attempt to "keep the administration's stock up."

I don't want to quarrel about the angulature of the administration's shift. That wasn't my point, except to note there was a discernable shift. But your points about the Judiciary committee hearings are fair, as - unlike the briefing of the intel committees - they are not required by statute.
2.9.2006 3:25pm
Kovarsky (mail):
excuse me, "cooperation," not "cooperative,"

and "whether," not "weather."
2.9.2006 3:26pm
Le Messurier (mail):
Go to the WSJ at opinionjournal.com and click on "on the editorial page"

Sorry
2.9.2006 3:38pm
Neal Lang (mail):
I think you are right. I just wish that the Bush administration would have thought enough of their co-equal branch of government to include them earlier.

But they did! And none had a problem with it until the opportunity came along to score partisan political points during the Mid-term Election Season. Go figure!
2.9.2006 3:40pm
Tom Holsinger (mail):
DRS,

We're at least trying to deal with the same problem. Check out my related post in another thread here. But:
"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."
2.9.2006 3:43pm
Michael B (mail):
"I would take Lawrence Tribe's command of constitutional law over the president's command of Nash equilibira." Kovarsky

This immediately brings to mind the wiser-than-thou quality of so many of Reagan's detractors vis-a-vis the Soviet Union, from Albright to Kerry to Thurow to Samuelson to Galbraith and many, many, many others. And yet, after the fall and the velvet revolutions, with 20/20 hindsight, the standard line has become "we all knew" and "it was inevitable".

Different situation, obviously, but aspects pertinent to the wiser-than-thou crowd are analogous.
2.9.2006 3:44pm
Kovarsky (mail):
Michael B,

There's a great line in the Martin McDonagh play, the Pillowman, about how when people say "that reminds me," it actually doesn't remind them of something at all, and instead that person should be saying something to the effect of "on a completely unrelated note."

I think it's pretty obvious that wasn't suggesting that I thought Lawrence Tribe should run the country.

I'm really not sure how it follows from the fact that some critical scholars might have changed their stories, that we always disfavor critical scholarship. That sounds like an intelligent design argument in drag to me.

I think it follows even less logically that becauese we should be skeptical of legal scholarship, that Bush is necessarily right.
2.9.2006 3:56pm
Neal Lang (mail):
A judicial opinion would be valuable.

Exactly what expertise do judges have regarding the efficacy of of the "combat intelligence" collection value of one mether over any other.
Furthermore, absent a leak, we'll never know what "new, untested program pursuant to the President's CIC power" is being used.

Get out the "tinfoil"!
It's not a leap, if you're an administration whose view of CIC power is plenary and whose view of Congress is as just another advisor, to borrow, modify, and extend the (overly) celebrated Harlan's "clear and present danger" test to stifle dissent by detaining "those liberal, anti-military, pre-9/11 mindset" dissenters whose public diatribes against the administration clearly aid, abet, and give comfort to our enemies.

When did this happen?
Pretty chilling stuff. But this administration has all but said this week -- through Gonzales and Cheney -- they have unlimited CIC power to do for America what parents are obliged to do, and not do, for their very young children.

Thank God we have a Republican Administration in the White House who is capable of behaving like adults because all the Democrats in Congression have been behaving like very immature spoiled brats.
2.9.2006 3:56pm
Jack John (mail):

I think it follows even less logically that becauese we should be skeptical of legal scholarship, that Bush is necessarily right.


Whoa! No one ever said that. I noted that I would prefer Bush's managerial skills to Tribe's legal ones. Bush leads well, Tribe loses high-profile cases.
2.9.2006 3:59pm
Neal Lang (mail):
In an ideal world there would be no secrets. We do not live in an ideal world.

In an ideal World all the terrorists in the US would be forced to wear burquas. Then we wouldn't need to use "electronic surveillance" on their communications in order to determine who they are.
2.9.2006 4:02pm
Kovarsky (mail):
Neal,

Your insinuation of partisanship has been debunked here over and over and over and over again. There are a number of Congressional Republicans that have very serious concerns about what the administration is doing.

It is not worth anybody's time to vet issues we've already been through repeatedly.
2.9.2006 4:06pm
Neal Lang (mail):
Not so of the administration's secret spying program(s).

Do you think perhaps that is why they are called "secret"? BTW, the Stealth Program was in the US Defense budget since the late 1970s. I challenge you to point it out to me!
2.9.2006 4:06pm
Kovarsky (mail):
Jack,

Stop being so self-absorbed. My remark was addressed to Michael B.

My post was that Lawrence Tribe knew constitutional law better than Bush knew game theory. You disagree. At that point I don't think you and I have much to talk about.

Michael B. responded with a "this reminds me" comment about how skeptical academic prognosticators changed their tune after the velvet revolution. I first remarked that I had no idea what that posted-but-not-relevant-point had to do about the relative proficiency of Tribe in Conlaw versus Bush in Game Theory (I didn't come up with that asinine heuristic, someone else implied it without saying it). I nonetheless indulged the remark as though it were relevant, taking my best guess at the posted-but-not-relevant-point that Michael B. was trying to make. I then explained what the posted-but-not-relevant-point was not only posted-but-not-relevant, but also logically tortured.
2.9.2006 4:11pm
Jack John (mail):
I'm not sure why you think Bush is terrible at game theory. He seems very adept at framing reality in zero-sum terms and winning in zero-sum situations. He takes the dominant position all the time. Your problem with him seems to be that he won't commit to a low-cost compromise; but he doesn't do that because he doesn't trust the partisans on the other side. Why should he?

Laurence Tribe loses constitutional cases. His theories convince other liberal law professors, and that is all. So what is this command you speak of? He gave up writing his treatise because he admits he doesn't know where constitutional law is headed. That sounds like the lack of a command over the subject matter. Command over subject matter usually includes the ability to provide explanations and to make predictions.

In what world is Tribe better at constitutional law than Bush is at applying game theoretic principles or theories of management and organizational behavior to the political world? Bush has radically altered the world; has Tribe ever won a constitutional case?
2.9.2006 4:19pm
Noah Klein (mail):
Neal,

First, the administration did not brief the entire intelligence committees. They instread briefed the "Gang of Eight" who were allowed to speak about this issue with their colleagues or staff. This is why there was not oversight. We dealt with this before.

Second, what makes you think that GWB knows more about combat intelligence than judges do. This program, of course, does not deal with "combat" intel, but even if it did, when it applies to U.S. persons I don't trust the judges to be able to determine which targets to surveil, but I do trust them to ensure that the executive is not surveiling innocents. Heck, that's their job. It has been their job from the beginning of the country. They are well-acquainted with the probable cause standard and they can determine if the evidence meets. And apparently they can do it very quickly.

Noah
2.9.2006 4:21pm
Jack John (mail):

I don't trust the judges to be able to determine which targets to surveil, but I do trust them to ensure that the executive is not surveiling innocents.



Isn't that the Executive's job?
2.9.2006 4:31pm
Neal Lang (mail):
Comments/Suggestions Appreciated. Please give thought at any rate, to substance of the idea. Perhaps it will become an issue in 2006 elections, or 2008 Presidential Election. The People and the Constitution deserve nothing less.

Why not just get Ramsey Clark to monitor all US Intelligence Gathering? If anyone understands how to violate Americans "civil rights" its JFK's AAG and LBJ's AG - just ask Martin Luther King.
2.9.2006 4:32pm
farmer56 (mail):
God what a bunch of navel staring

No one has the stomach to cantrast the Kennedy admistration with that of Bush 43. I got it.

Give an attempt at a solution.

Medis laid out the the problem

one; get a court to declare the spook work unlawful

Two; change or ammend they law

Three; changing the law dont work the President is already breaking the law, this is a non starter.

Four'; Impeach the President

Five; stop staring at you navel
2.9.2006 4:35pm
Neal Lang (mail):
I agree with those of us who say impeachment hurts Democratic chances at the White House. I simply don't care. The Constitution is more important than the 2008 election, and I cannot see any other way of preventing the unintentional leviathon that is the executive branch from respecting said legal document.

Where were you when "Slick Willie" was committing perjury in Grand Jury Testimony?
2.9.2006 4:35pm
farmer56 (mail):
lying to a court is just, ahh like chewing gum, most do it. And besides doing it for the right reasons absolves all legal constraints. sexually abusing interns is just one of the perks of the office.

(BTW) Stop quoting facts, makes my head hurt and hurling softboiled opinions are much more entertaining.
2.9.2006 4:41pm
Neal Lang (mail):
What a fairy tale this string has become. President impeached for conducting wiretapping of suspected foreign enemies!!!!!!! Personally, I'd prefer Cheney as President. Just the thought of it makes me laugh.

Actually, I was thinking more like Karl Rove.
2.9.2006 4:47pm
Neal Lang (mail):
First, the administration did not brief the entire intelligence committees. They instread briefed the "Gang of Eight" who were allowed to speak about this issue with their colleagues or staff. This is why there was not oversight. We dealt with this before.

Thank God they didn't or the NSA Terrorist Surveillance Program would have been in the Media back in 2001 insteal of 2005.
Second, what makes you think that GWB knows more about combat intelligence than judges do. This program, of course, does not deal with "combat" intel, but even if it did, when it applies to U.S. persons I don't trust the judges to be able to determine which targets to surveil, but I do trust them to ensure that the executive is not surveiling innocents. Heck, that's their job. It has been their job from the beginning of the country. They are well-acquainted with the probable cause standard and they can determine if the evidence meets. And apparently they can do it very quickly.

Gen. Michael Hayden most certainly does. I miss the part in the Constitution that gives the Judicial Branch any part in the conduct of War, other than the part that says they have no jurisdiction over the active duty Military or the Militia, and the part that says their Writs of Habeas Corpus might just be worthless. Ask Chief Justice Roger Brooke Taney for an explanation!
2.9.2006 4:53pm
Michael B (mail):
"There's a great line in the Martin McDonagh play, the Pillowman, about how when people say 'that reminds me,' it actually doesn't remind them of something at all, and instead that person should be saying something to the effect of 'on a completely unrelated note.'" Kovarsky

Too smart, Kovarsky, by a half. Far too defensive as well.

You very much miss the point, or at least miss what was being emphasized. I specifically and pointedly noted it was simply reminiscent and roughly analogous only, not an equivocation or exact parallel. Too, the idea I need you to validate what some statement "brings to mind" is more than a little amusing.
2.9.2006 4:57pm
Noah Klein (mail):
Neal,

Rove is one fartherest people I can think of from becoming president. Is not the line of succession or anything else nor do I think he would want to be the frontman of the administration. He does his best work behind the scenes. Having said that, IF impeachment were to happen I doubt that Rove would be appointed to the VP spot and then rise to the presidency.

JJ,

NO. Its historically been the Judiciary's job to check on the searches conducted by the executive in this country.

Noah
2.9.2006 4:58pm
Neal Lang (mail):
Your insinuation of partisanship has been debunked here over and over and over and over again. There are a number of Congressional Republicans that have very serious concerns about what the administration is doing.

Funny, this whole NSA Terrorist Surveillance Program wasn't a problem until Mid-term Elections were coming up. Why if this necessary "intelligence gathering operation" was such a "civil rights" abuse, the Democrat leadership waited until 2005 to bring it up. Nothing has been debunked, except perhaps Democrat patriotism and sense of National Security.
2.9.2006 4:59pm
farmer56 (mail):
I see lots of people going down for a third time.

I know now. from the Roberts hearings, that precedent is the MOST important thing is the legal circle (read abortion) Thus a President spying on a US citizen authorized by his brother, the AG, sets precedent. Checkmate!
2.9.2006 5:10pm
Noah Klein (mail):
Everyone,

On the topic of impeachment, but not on this topic, Scotter Libby has admitted that Cheney authorized him to leak the name of Valerie Plame. And so we have a whole new path to impeachment. I did not think Libby would turn on his boss, but it looks like he did. I got this from MSNBC's Harball, which got this info from the National Journal.

Neal,

The Intel committees since their formation in the 1940's have handled the most sensitive information of the government. I have never heard of any president prior to this one at this time say that those two committees are leaking machines. If they were, we would know a whole lot of things that are currently not publicly known. You lack faith in the Legislature is very disturbing. Finally on this point, the leak of the NSA program came from the executive branch and from intel officials who were upset with the program.

I trust Gen. Michael Hayden to agressively pursue any means to achieve the intelligence needed to defeat terrorists. I do not trust him, as I do not trust any executive official in any administration, to stop before innocent people's civil liberties are violated. How many historical examples of the executive violating the rights of the people do you need before you realize that a check on the executive is necessary?

Noah
2.9.2006 5:11pm
Noah Klein (mail):
Neal,

We did not have the information before December 2005, which is why in December 2005 both Democrats and Republicans (Specter immediately called for hearings) began to investigate this. You have to be joking that this partisan. It is a battle between two branches of government, yes, but between two parties.

Noah
2.9.2006 5:14pm
Kovarsky (mail):
Michael B.,

For a guy who can't keep his thesaurus in his pants, you certainly just made poor use of the word "equivocate."

And I do think that we are all in agreement that I can't know subjectively what reminded you of what; the point is that generally when people say "that reminds me" the connection between the two associated things is generally extremely attenuated.

So more to the point, and as you conspicuously failed to do in your previous post, would you care to explain why the comparison of Tribe(conlaw) vs. Bush(game theory) made you think of the cold war theorists' change of tune after the velvet revolution. because it's not obviuos to me what "reminded" you of saying it, other than you wanted publicly to display your familiarity with a particular thread of academic history.
2.9.2006 5:15pm
Jack John (mail):

NO. Its historically been the Judiciary's job to check on the searches conducted by the executive in this country.



This is a totally different phrasing, and is not what I disagreed with. I take it you understood my point.
2.9.2006 5:19pm
John Lederer (mail):
"The Intel committees since their formation in the 1940's have handled the most sensitive information of the government. I have never heard of any president prior to this one at this time say that those two committees are leaking machines."

That's risible. Nexis "Intelligence Committee leak"

Or take this one:

"Sen. Patrick Leahy's admission that he resigned from the Intelligence Committee this year for 'carelessly' exposing the panel's draft report on the Iran-Contra investigation comes at a time of increased political tension over the issue of leaks to the news media." (George Lobsenz, UPI, 7/29/87)
2.9.2006 5:26pm
Medis:
I always find it amusing when people argue that they don't want the courts doing something as radical as interpreting the law.
2.9.2006 5:26pm
Jack John (mail):
I always find it amusing when people argue that they don't want the Executive doing something as radical as executing the law.
2.9.2006 5:29pm
KMAJ (mail):
I find the Wall Street Journal editorial to be quite relevant to what is actually going on in this NSA debate.

Abolish FISA
A Congressional power grab, using judges as a cudgel


It is one point I have made all along, and is avoided by critics, this is a legislative branch power grab when put in historical perspective. The executive branch is trying to fend off this attempt.

Releavnat poinst made:

Whatever happened to "impeachment"? Only two months ago, that was the word on leading Democratic lips as they assailed President Bush for "illegal" warrantless NSA wiretaps against al Qaeda suspects. But at Monday's Senate hearing on the issue, the idea never even made an appearance.

The reason isn't because liberal critics have come to some epiphany about the necessity of executive discretion in wartime. The reason is they can read the opinion polls.
---
In short, the larger political battle over wiretaps is over, and the President has won the argument among the American people.
---
Judging by Monday's hearing, Senators of both parties are still hoping to stage a Congressional raid on Presidential war powers. And they hope to do it not by accepting more responsibility themselves but by handing more power to unelected judges to do the job for them.
---
What FISA boils down to is an attempt to further put the executive under the thumb of the judiciary, and in unconstitutional fashion. The way FISA works is that it gives a single judge the ability to overrule the considered judgment of the entire executive branch. In the case of the NSA wiretaps, the Justice Department, NSA and White House are all involved in establishing and reviewing these wiretaps. Yet if a warrant were required, one judge would have the discretion to deny any request.
---
FISA is the intelligence equivalent of asking battlefield commanders in Iraq to get a court order before taking Fallujah. "We can't afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive al Qaeda operatives in real time,"...
---
Passed in the wake of the infamous Church hearings on the CIA, FISA is an artifact of post-Vietnam and post-Watergate hostility to executive power. But even as Jimmy Carter signed it for political reasons, his own Attorney General declared that it didn't supercede executive powers under Article II of the Constitution. Every President since has agreed with that view, and no court has contradicted it.
As federal judge and former Deputy Attorney General Laurence Silberman explained in his 1978 testimony on FISA, the President is accountable to the voters if he abuses surveillance power. Fear of exposure or political damage are powerful disincentives to going too far. But judges, who are not politically accountable, have no similar incentives to strike the right balance between intelligence needs and civilian privacy. This is one reason the Founders gave the judiciary no such plenary powers.

Far from being some rogue operation, the Bush Administration has taken enormous pains to make sure the NSA wiretaps are both legal and limited. The program is monitored by lawyers, reauthorized every 45 days by the President and has been discussed with both Congress and the FISA court itself. The Administration even decided against warrantless wiretaps on al Qaeda suspects communicating entirely within the U.S., though we'd argue that that too would be both constitutional and prudent.

Any attempt to expand FISA would be the largest assault on Presidential power since the 1970s. Congress has every right to scrutinize the NSA program and cut off funds if it wants to. But it shouldn't take the politically easy route of passing the buck to the judiciary and further limiting the President's ability to defend America. Far from expanding FISA, Congress could best serve the country by abolishing it.


I think this editorial nails the political game being played with this issue. This issue is not about expanding executive branch power, but a blatant power grab by the legislative branch.
2.9.2006 5:35pm
Kovarsky (mail):
I always find it amusing when people who claim to work at the department of justice post jokes about how the Court is going to side with the executive because either Ginsburg or Stevens is going to choke and die while eating dinner at Clarence Thomas's house.
2.9.2006 5:36pm
Apodaca:
JJ writes:
I always find it amusing when people argue that they don't want the Executive doing something as radical as executing the law.
An oddly ambiguous word, "executing."
2.9.2006 5:36pm
Jack John (mail):

An oddly ambiguous word, "executing."



It's as ambiguous as the law being executed, no?
2.9.2006 5:37pm
Noah Klein (mail):
JJ,

I said: I don't trust the judges to be able to determine which targets to surveil, but I do trust them to ensure that the executive is not surveiling innocents.


You said: Isn't that the Executive's job?

I said: NO. Its historically been the Judiciary's job to check on the searches conducted by the executive in this country.

You said: This is a totally different phrasing, and is not what I disagreed with. I take it you understood my point.

I thought that you said the executive's job was to ensure that innocents were not be surveiled. If you were not saying that I am sorry for confusing that issue. But either way I do not see why there is a disagreement here. The executive conducts intelligence, just like it conducts investigations into crimes. When the intelligence does not concern Americans in America, then the judiciary has no role. When the intelligence does concern Americans in America, the Congress has in 1978 given the judiciary a role. You may think the judiciary's role is inappropriate, but it is not unprecedented. I do not see why people object to the law on constitutional grounds. I can see why people would object to the law on operational grounds, but I don't think their fears are actually occuring and furthermore the executive cannot violate the law, because it disagrees with it.

Noah
2.9.2006 5:37pm
Jack John (mail):

I always find it amusing when people who claim to work at the department of justice post jokes about how the Court is going to side with the executive because either Ginsburg or Stevens is going to choke and die while eating dinner at Clarence Thomas's house.



I NEVER joked that Ginsburg or Stevens would choke and die while eating dinner at Clarence Thomas' house. Take it back.
2.9.2006 5:39pm
Michael B (mail):
Kovarsky, I don't use a thesaurus and very rarely a dictionary online, so congratulations and applause are due for catching an absentminded use of 'equivocation'. Also, it wasn't primarily the "change of tune" being emphasized, that was more an afterthought.

"... other than you wanted publicly to display your familiarity with a particular thread of academic history."

But of course, I wanted to display some type of esoteric historical knowledge. Good grief. Your miscomprehensions are manifest, and no, I don't care to explain. For a guy who can't keep his ready dismissiveness and scoffs in his pants, you miss a good deal.
2.9.2006 5:41pm
Medis:
Apodaca,

I'm not sure "executing" is so ambiguous as to include "ignoring" in its definition.
2.9.2006 5:43pm
Kovarsky (mail):
KMAJ,

What would lead you to believe even if impeachment IN THE HOUSE OF REPRESENTATIVES was a credible option, that the SENATE Judiciary committee would talk about that in a COMMITTEE hearing involving the attorney general, the scope of which was to determine what the program was and whether it was legal. They were undertaking a remedial hearing.

I don't want the president impeached over this. It's not good for the country. As a political maneuver for the Dem's, I think it's probably suicidal. I think that's a different matter from what constitutes an impeachable offense.

And the proposition that the frequency of the term "impeachment" at the Senate judiciary hearing has anything to do with the democrat's belief in the possibility of it is, well, poor logic.
2.9.2006 5:44pm
Jack John (mail):
I'm not sure "interpreting" is so ambiguous as to include "abortion" in its definition.
2.9.2006 5:45pm
Kovarsky (mail):
Excuse me: they were "not" undertaking a remedial hearing. I will do a better job of proofing my posts. This has happened 3 times today. I apologize.
2.9.2006 5:45pm
Medis:
KMAJ,

That's right, critics always ignore that issue.

Oh, except for the dozens, perhaps hundreds, of times you have raised it, and people have patiently responded to you.

Incidentally, I notice the WSJ op/ed also talks about FISA being unconstitutional without bothering to, say, look at the Constitution.
2.9.2006 5:46pm
Jack John (mail):

I thought that you said the executive's job was to ensure that innocents were not be surveiled.



Sure, I think the executive has the duty to take care that innocents are not surveiled.
2.9.2006 5:47pm
Apodaca:
Medis, "executing" may also be used in the Lubyanka sense.
2.9.2006 5:49pm
Jack John (mail):
I guess the executive consists of mindless robots, and executing the law does not require interpreting it, or reading it!!!
2.9.2006 5:50pm
Kovarsky (mail):
Jack John,

That was a bald faced lie. I could only wish this would shame you into not posting here anymore.

Here is your post, from Orin Kerr's "The GOP Congress and the NSA Surveillance Program," 2/8/06, 9:52


(link)Jack John (mail):

5-3-1 in favor of the administration. The case is brought after Stevens and Ginsburg die while eating dinner together at Clarence Thomas's house. Thomas, Roberts, and Alito join with their two new cohorts. Kennedy, Scalia, and Souter concur in part and dissent in part, with Kennedy writing. Breyer writes a scathing dissent, in which he discloses the deleterious ingredients of Thomas' pecan pie recipe. Thomas writes a book afterward for $3 million, entitled, "How Trans-Fats Saved The Union".
2.9.2006 11:42am
2.9.2006 5:57pm
Jack John (mail):

Kovarksy: I always find it amusing when people who claim to work at the department of justice post jokes about how the Court is going to side with the executive because either Ginsburg or Stevens is going to choke and die while eating dinner at Clarence Thomas's house.



1. Where does it say Ginsburg or Stevens die? It says Ginsburg AND Stevens die.
2. I NEVER say they choke. Any idiot can see that they die from the TRANS-FATS IN THE PECAN PIE!!!
2.9.2006 6:02pm
Jack John (mail):
So, no, I didn't lie, Kopvarksy, you DEMONSTRABLY misrepresented my statements. What you said is FALSE. You slandered me.
2.9.2006 6:03pm
Noah Klein (mail):
JJ,

Executing the law does mean that they can interpret the law. But they final judge of what the law says that the courts job. Furthermore, executing the law does not mean ignoring it. FISA is clear, as was said above (or in another thread, I'm not sure which) the executive cannot surveil U.S. persons in the U.S. without following the rules prescribed in FISA. As was said above (or in another thread, I'm not sure which), the president did what he wanted and then looked for legal cover (the game theory debate). This is not interpreting the law, it's breaking it and then looking for a defense. This is why the legal defense of this action is so ridiculous.

Second, so I was right you think it is the job of the execute to protect innocents from being surveiled. This is false. The executive should not surveil innocents, but they do sometimes. The nature of the executive is to be aggressive and zealous. Sometimes it's overzealous. Providing a check to the zealous nature of the executive is the judiciary's job and thus we have FISA. In the past the legislative branch thought it was appropriate to leave the decision of surveilance for foreign intelligence purposes to the executive solely because of the sensitive nature of intelligence. But the executive overstepped it bounds and so the legislative thought there should be a check. Where is the problem with this?

Noah
2.9.2006 6:06pm
Kovarsky (mail):
Michael,

I'll give you one last opportunity to explain your original point before I give up, which is what does Tribe(conlaw) vs. Bush(game theory) have to do with the phenomenon you discussed in your post.

I'm guessing you haven't done that because there really isn't one. I'm also guessing you are going to respond with "per chance, to wit, elementary my dear watson." So the most effective way to prove me incorrect and overly-dismissive would be to speak in short, concise sentences in your response.

I wasn't suggesting you literally use a thesaurus, bub. I was suggesting you like to use unnecessarily big words when you write, and your well-documented tendency is to do so most aggressively when addressing someone less verbally sophisticated than you are. People who do things like that generally do so to try to make the other person look stupid, as that other person cannot respond to the substance of your argument because they do not understand what you are saying. Most of the time, when you take the time to untangle the big words and nested latinate phrases, you are not saying much of anything.
2.9.2006 6:07pm
KMAJ (mail):
Kovarsky,

My point was not the focus on impeachment, per se, but that not one of the critics addresses the legislative branch power grab that is really at the heart of this issue. Unlike the editorial, I do not advocate for the abolition of FISA, but it needs to be restructured and limited in scope to prevent its being an obstacle to the prosecution of war, of which intelligence gathering is a critical, fundamental and essential part. To insert FISA into the operational aspect of war is the equivalent of micro-managing to the point of being a hindrance to success.
2.9.2006 6:07pm
David Matthews (mail):
"I'm not sure "executing" is so ambiguous as to include "ignoring" in its definition."

I believe he was thinking of "executing" having the meaning Bush would have been familiar with as governor of the state that's home to Huntsville Prison, but I could be wrong.
2.9.2006 6:08pm
Jack John (mail):

Executing the law does mean that they can interpret the law.
Noah Klein


Then that means interpreting ambiguous provisions of the law or conflicts between laws.


But they final judge of what the law says that the courts job.
Noah Klein

Then that means where the court has yet to rule, the Executive interpretation governs its execution of the ambiguous provision or the conflict between laws.


Furthermore, executing the law does not mean ignoring it.
Noah Klein


No, but i does entail discretion about how and when to apply the law when it is ambiguous or it is in conflict with other laws and the court has yet to rule.
2.9.2006 6:10pm
Kovarsky (mail):
John Jack,

I don't have a particular problem with your not-funny joke. I like irreverent jokes, just not not-funny ones. I just think perhaps its inappropriate that someone who claims to work in the justice department be making those particular kind of not-funny jokes.
2.9.2006 6:11pm
Kate1999 (mail):
Chill, people. Chill.
2.9.2006 6:12pm
Tom Holsinger (mail):
KMAJ,

The WSJ article does not describe a power grab by Congress - it explains how the Congressmen in question run away screaming from having to take responsibility themselves. They're trying to take national security power from the President and give it to unelected, unaccountable, judges. In particular they are trying to piggy-back on the Rasul decision hoping the Supreme Court will use this opportunity to further expand its violation of separation of powers.
2.9.2006 6:12pm
Jack John (mail):
Kovarksy: I don't have a particular problem with your not-funny joke. I like irreverent jokes, just not not-funny ones.

I think the relevant issue is that you slandered me in a malicious attempt to "shame" me. Anyone can scroll up to see that what you did was intentionally malicious and it caused me great emotional distress. I am crying right now and I do not think am I going to be able to come into work tomorrow. I know that such extreme distress was your intent because you said you hoped I was so ashamed that I never posted here before. Even worse, what you wrote was demonstrably false. I never, as you imply, wished a grisly death on either Justice Stevens or Justice Ginsburg, i.e., by choking to death. That would be a revolting and evil image. By contrast, passing because of a delicious piece of pie rich trans-fats is both whimsical and a very painless way to go! You distorted what was a whimsical tale about the fatty pies that Clarence Thomas is wont to prepare for his friends; you turned it into a morbid death-wish. You have exceeded the bounds of civilized society by what you have done, Kovarsky.
2.9.2006 6:19pm
Tom Holsinger (mail):
Noah,

Each branch of government is the sole judge of its core powers vs. vs. encroachment by other branches, and is charged with the duty of protecting those against such encroachment. Separation of powers disputes are political in nature no matter how many ill-fitting lawsuits they are dressed in.

It matters not if the Supreme Court grants a writ by Osama bin Laden commanding the President to surrender the United States to him, or grants my writ commanding Congress to appropriate me the funds to live the life of ease and luxury I deserve.
2.9.2006 6:21pm
Kovarsky (mail):
Kate 1999,

I imagine that that you are saying "chill" because you are reading this thread in a vacuum, but some of these exchanges have been going on for weeks and the pitched-character of my comments to 2 - and only 2 - people reflects not necessarily only the posts on this thread, but attributes that I have observed for quite some time.

For example, a number of VCers will not even acknowledge JJ, for reasons that are I think pretty obvious.

And I've watched Michael B repeatedly, and without provocation, attempt to humiliate people by sheer force of his vocabulary. The people he always picks on are people who tend to be asking honest, simple questions, and the condescension with which he posts in response to them is counterproductive to those of us that come here actually looking for an exchange of ideas, rather than a forum to scream at somebody else.

I've had it with these two and these two only. I disagree with a number of people on this site about a number of issues - KMAJ, Bruce, Tom, Neal to name a few. But those people are civilized and at least try to be constructive. But the possibility of civilized disagreement is often thwarted by the belligerance and petulance of certain participants.

If I am belligerant I hope it is clear that it is a product of repeated interactions with certain pseudonyms, and and not a disposition I want to project to others.
2.9.2006 6:24pm
Noah Klein (mail):
JJ,

"No, but i does entail discretion about how and when to apply the law when it is ambiguous or it is in conflict with other laws and the court has yet to rule."

The law states that it is the exclusive means to surveil U.S persons in the U.S. (and the DOJ and AG have admitted that the NSA program is covered under FISA). The new law (AUMF) says that the president should use "all necessary and appropriate force." Appropriate means follow the law. So where do you see this as merely interpreting conflicting statutes. There are no conflicting statutes. There are no real question about what FISA says and what the AUMF authorized. Both Republican and Democratic legislators have said that their AUMF had nothing to do with changing FISA. In fact, they changed FISA after they passed the AUMF. Where does the administration get off saying that they can tell the Congress what they meant to say when they pass laws. You guys get very angry when you think the branch government responsible for interpreting the law does that, but its okay for the branch that is supposed to execute the law does it. This hypocrisy I see position your position. Where am I wrong? Please prove it to me and I will vociferously join your side. Why can the executive do something that you scream at the judiciary for doing?

Noah
2.9.2006 6:25pm
Jack John (mail):
That is amusing, given that I only started interacting with Kovarsky two days ago.
2.9.2006 6:25pm
KMAJ (mail):
Medis,

Do you care to show me where in history, the legislative branch has conducted an equivalent assault on executive branch authority that FISA represents ? I would like to see just such an example of legislative excess. Can you cite any example that what the administration is claiming in the NSA surveillance exceeds the authority exercised by any presidents pre-FISA ? Can you cite any examples of interference in intelligence gathering during war time ? Woodrow Wilson authorized the interception of ALL incoming and outgoing communications during WWI, FDR did the same during WWII. Please note the emphasis on ALL. The NSA surveillance does not purport to come close to those declarations of executive branch power, but only to those incoming and outgoing to suspected or known terrorists, their organizations or collaborators.

So, while you claim reasoned address of the issue, it has fallen far short of providing substantiation. There is NO unprecedented power grab by the executive branch, merely an assertion of constitutional authority that is infringed upon by a legislative branch statute and an executive branch refusal to cede their belief of constitutional authority to protect and defend.

When there is a conflict between the Constitution and statute, which prevails ?
2.9.2006 6:26pm
Jack John (mail):

The new law (AUMF) says that the president should use "all necessary and appropriate force." Appropriate means follow the law



Hahahaha! That is a bizarre reading of an authorization to use military force! Why would such an authorization say, "Hey, do whatever you need to, but only if it doesn't conflict with FISA!" in such vague terms? If Congress meant that, they would have mentioned FISA in AUMF. They didn't.
2.9.2006 6:28pm
Michael B (mail):
Kovarsky,

Your Laurence Tribe/President Bush contrast caused me to comment as follows: "This immediately brings to mind the wiser-than-thou quality of so many of Reagan's detractors vis-a-vis the Soviet Union, from Albright to Kerry to Thurow to Samuelson to Galbraith and many, many, many others."

Simple as that. Why that needs any extended explanation I quite honestly cannot fathom. The recollection was further reinforced by the fact that Charlie Rose had the AG on for about 45 minutes followed by 15 minutes of Laurence Tribe last night; Tribe was indulgent in rhetoric and generalities and lacking in very much substantive content and specifics, glossing over details and being less than transparent about unknowns.

Your presumptive, accusative tone, your miscomprehensions and your scoffing disdain, "bub," are telling. I use the rhetoric I use (your thesaurus comment) for a variety of reasons, neither the least nor greatest of which is to allow presumptives to express their all too ready disdain and contempt.
2.9.2006 6:30pm
Jack John (mail):

Both Republican and Democratic legislators have said that their AUMF had nothing to do with changing FISA.



I guess we should always look to parole evidence to decide contracts, huh?
2.9.2006 6:30pm
Kovarsky (mail):
JJ,

Even you are observant enough to know that I wasn't suggesting that you actually wanted them to die.

Medis made a remark about how he was "amused."

You made a snide remark back about how you were "amused."

I made a snide remark about how I was amused that you, someone who works at the DOJ, would make a joke like that.

You then lied, saying you didn't make the joke.

What I thought was shameful was not that you made the joke, but that you sat here and lied when you said you didn't make it.

You then try to pass the lie off as a bit of "whimsicality" by saying that you didn't say "or," you said "and." You're now trying to make the issue out to be that I'm misrepresenting the initial joke itself. I'm not. I don't think you actually want them dead.

I don't think the initial joke is shameful. I think the claim (read: lie) that you didn't say it was.
2.9.2006 6:31pm
Jack John (mail):
I've found it out. I know why I disagree with Medis and Kovarsky so much. They are really Jimmy and Rosalynn Carter, posting under pseudonyms!
2.9.2006 6:32pm
Noah Klein (mail):
Tom,

You just came right left field there, didn't you? Where do you see me say that SCOTUS should grant a writ to Osama and what does it matter if separation of power issues are political (of course they are)? The Supreme Court, while often trying to avoid these issues, do rule on them (Bush v. Gore people). So it doesn't matter that the issue is political. It matters if 4 justices of the Supreme Court (if it gets there) are willing to take up the issue. I betting they will (if they get a chance). $20 anyone?

Noah
2.9.2006 6:33pm
Jack John (mail):
Kovarksy: You then lied, saying you didn't make the joke.
I never claimed I didn't make a joke. I claimed I never made a joke about where either Ginsburg or Stevens choke and die. I certainly made no such joke. There is no record in these posts of me making such a joke. You were lying when you stated that. I asked you to take back your lie. You are now simply slandering me, and if you continue, I will sue you.
2.9.2006 6:34pm
Kovarsky (mail):
Michael B.,

The "that was so obvious it didn't warrant explanation" explanations are always the the most tenuous ones.

I still don't see what the requested comparison of Tribe's proficiency in law to that of Bush in game theory has to do with the remark you made, other than the uselessly general point that academics are sometimes wrong. I guess your remark makes a little more sense in light of what was in your head because you were watching television last night, but that connection is far from "so obvious that it warrants no explanation."
2.9.2006 6:35pm
Jack John (mail):

Kovarksy: What I thought was shameful was not that you made the joke, but that you sat here and lied when you said you didn't make it.



I never claimed I didn't make a joke. I claimed I never made a joke about where either Ginsburg or Stevens choke and die. I certainly made no such joke, and yet you claimed that I did. There is no record in these posts of me making such a joke. You were lying when you stated that. I asked you to take back your lie. You are now simply slandering me, and if you continue, I will sue you.
2.9.2006 6:35pm
KMAJ (mail):
Tom Holsinger,

Thank you for the correction. You are right, but it still presents a case of the legislative branch attempting to take authority away from the executive branch and delegate it to the judicial branch. It's almost like a guerilla raid that takes property from one and delivers it to another. Then when accused, they show their empty hands and say "We don't have it." But that property is still gone and someone else possesses it.
2.9.2006 6:37pm
Kovarsky (mail):
JJ,

I'm done today. This exchange was almost as good as when you called Medis a Nazi yesterday.

Excuse me. You called him "Medis the Nazi." I wouldn't want to be misleading.
2.9.2006 6:37pm
Jack John (mail):
Medis implied that everyone who disagrees with him here is a part of an organized campaign by Dick Cheney. That does remind me of paranoia on par with the paranoia of Nazism, which is what I satirically noted yesterday.
2.9.2006 6:39pm
Kovarsky (mail):
Everyone,

I earnestly apologize for my role in these childish exchanges. They have very little to do with anything constructive that should be discussed here. I let my temper get the better of me.
2.9.2006 6:40pm
Jack John (mail):
Lee Kovarksy,

The simple fact is I never joked that Ginsburg or Stevens would choke and die. You made that up and then accused me of it, even after it was proven that you were intentionally lying. That is slander.
2.9.2006 6:41pm
Medis:
KMAJ,

I have posted many such examples of Congress regulating our conduct of war, including from the Articles of War and the UCMJ, dating back to the Revolutionary War. I could do that again, but I sense it is futile.

Anyway, you make what you call "constitutional" arguments--but you don't actually deal with the United States Constitution itself. If you read it, you might be surprised at what you find.

Indeed, in what I consider to be a nice little irony, here is the Constitution's actual use of the words "protect" and "defend":

"Before he [the President] enter on the Execution of his Office, he shall take the following Oath or Affirmation:

'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'"

So, I find it highly amusing that both literally and figuratively, you seem to be removing the words "the Constitution of" from this oath.

But I realize nothing I say will convince you to look to the actual Constitution, rather than the WSJ op/ed page and Powerline, for your ideas about what is constitutional. But it is more than a little silly for you to claim people never respond to your BIG IDEA--anyone who has ever said anything to you at all here cannot possibly have avoided it.
2.9.2006 6:44pm
Noah Klein (mail):
KMAJ:

The Tenure of Office Act. A much greater intrusion into executive power (and to my knowledge never overturned). Yet FISA is not an intrusion into executive power, because the legislative branch is able to make any Art. III court it wants and the legislative is supposed to proscribe the rules that the military operates in war. The NSA is in DOD. Where's the conflict?

JJ,

"Why would such an authorization say, "Hey, do whatever you need to, but only if it doesn't conflict with FISA!" in such vague terms? If Congress meant that, they would have mentioned FISA in AUMF. They didn't."

Why would they mention FISA in the AUMF? They didn't the National Security Act of 1947 or the Uniform Code of Military Justice or any of the other laws that govern the military and the executive branch. They didn't mention is because they didn't think the executive would make such a strange proposition that the president's C-I-C authority allows him to say which laws apply. Maybe in teh future, because the president made such an odd claim they will include it. But either way it is not "bizzare" to read the AUMF's "appropriate" as meaning lawful, because that is how it's meant. If I tell you that you should conduct your business appropriately, do you think this means only as you see fit or is it possible it means as you see fit, but following the law? I kinda think its the latter.

Noah
2.9.2006 6:45pm
Kovarsky (mail):
(link)Jack John (mail):

5-3-1 in favor of the administration. The case is brought after Stevens and Ginsburg die while eating dinner together at Clarence Thomas's house. Thomas, Roberts, and Alito join with their two new cohorts. Kennedy, Scalia, and Souter concur in part and dissent in part, with Kennedy writing. Breyer writes a scathing dissent, in which he discloses the deleterious ingredients of Thomas' pecan pie recipe. Thomas writes a book afterward for $3 million, entitled, "How Trans-Fats Saved The Union".
2.9.2006 11:42am
2.9.2006 6:46pm
Medis:
Kovarsky,

It is quite understandable, but really not worth your time or energy.
2.9.2006 6:46pm
Jack John (mail):

Noah: I kinda think its the latter.



You also think horrible and wrong are objective facts and not normative conclusions. So much for what you think.
2.9.2006 6:49pm
Jack John (mail):

Jack John: 5-3-1 in favor of the administration. The case is brought after Stevens and Ginsburg die while eating dinner together at Clarence Thomas's house. Thomas, Roberts, and Alito join with their two new cohorts. Kennedy, Scalia, and Souter concur in part and dissent in part, with Kennedy writing. Breyer writes a scathing dissent, in which he discloses the deleterious ingredients of Thomas' pecan pie recipe. Thomas writes a book afterward for $3 million, entitled, "How Trans-Fats Saved The Union".
2.9.2006 11:42am

Kovarksy: I always find it amusing when people who claim to work at the department of justice post jokes about how the Court is going to side with the executive because either Ginsburg or Stevens is going to choke and die while eating dinner at Clarence Thomas's house.



Where do I talk about choking to death? I'm talking about dying from eating pie with trans-fats in it! I never mention choking at all! You are LYING.
2.9.2006 6:52pm
Jack John (mail):
A trans fatty acid (commonly shortened to trans fat) is an unsaturated fatty acid whose molecules contain trans double bonds between carbon atoms, which makes the molecules less kinked compared with those of 'cis fat'. Research suggests a correlation between diets high in trans fats and diseases like atherosclerosis and coronary heart disease. The US National Academy of Sciences recommended in 2002 that dietary intake of trans fatty acids be minimized.
2.9.2006 6:53pm
Medis:
Kovarsky,

And the great thing is, your participation isn't really needed at this point. The other end of this "discussion" will now go on indefinitely with little or no involvement at all on your part.
2.9.2006 6:54pm
JunkYardLawDog (mail):
I wrote this to summarize the arguments of the legalistic and obsessively anal impeachment types so as to clarify for them how the country hears their arguments of angels dancing on pins:

<b><i>Warrantless Surveillance of Drug Czars OK; but if Osama is calling then we must DELAY.

Protecting our liberty the democrat way; means trading some lives for political hay.</b></i>




Someone said:

<I>Remember, they approach issues like this as businessmen, not as lawyers. Lawyers are the employees. They are the CEOs who hired the lawyers.</i>


This is exactly as it SHOULD be and as it works in real life. Law School is just a trade school. Lawyers are technocrats just like accountants, doctors, and statisticians. Lawyers are often unable to see the forest for the trees which explains perfectly how a majority of justices could fail to find the words "public use" in the constitution, but can find abortion written there.

Lawyers in the real world are paid to help their client's get what they want. Show me a lawyers who falsely thinks they are somehow endowed with greater insight and intelligence with regard to life, proper goals, policy matters, or you name it than their clients, and therefore sees their function as to make pronouncements to their clients instead of helping their clients achieve their lawful objectives, and I'll show you a lawyer who can't make it rain and works in the back room away from the public and clients. Any lawyer of merely average technical skills can assume the role of making pronouncements to their clients, but it takes more intelligence and creativity of thought to conceptualize and strategize a course for their clients that doesn't just dead end with a legal pronouncement to the effect "you can't get there from here".

<b>Says the "Dog"</b>
2.9.2006 6:54pm
Noah Klein (mail):
JJ,

I said: Both Republican and Democratic legislators have said that their AUMF had nothing to do with changing FISA.

You responded: I guess we should always look to parole evidence to decide contracts, huh?

I would think even you would recognize that what Congress says their legislation means is pretty important to understanding what their legislation means. But no, you go off and make an idiotic reference to the fact that this is like comparing apples to oranges (parole evidence to decide contracts). If Congress that their legislation did not even consider the action taken the executive, it is kind of a leap to say that that legislation authorized the executive to take the action, don't you think?

Noah
2.9.2006 6:55pm
Tom Holsinger (mail):
Noah,

You said (link): "... furthermore the executive cannot violate the law, because it disagrees with it."

I made the point that a President has a positive duty under the Constitution to resist encroachment by Congress and the judiciary on his core powers.

That is not "coming out of left field" (link).

And it applies with particular force to FISA, which is unconstitutional as applied to almost all of the interpretations of it advanced in these related discussions. IMO FISA is subject to a facial challenge too.
2.9.2006 6:57pm
Jack John (mail):

Noah: If Congress that their legislation did not even consider the action taken the executive, it is kind of a leap to say that that legislation authorized the executive to take the action, don't you think?



Well, your quote above makes no sense. Should I look to the intent of what you meant? Or simply ignore this sentence because it makes no sense? Or should I make up my own meaning for your sentence? Or should I ask you what you meant when you wrote this nonsensical sentence, assuming that you won't change your mind after the fact? Or should I ask someone who was in the room when you drafted the sentence, but who disagrees with you as to its meaning or your intent when you wrote it? Hmm. I need a bright line rule! I guess I'll just ignore this ungrammatical piece of nonsense and you can clarify it for me at a later date, if you choose. Otherwise, I'll just go back to doing what I was doing before you wrote the nonsense.
2.9.2006 7:02pm
Noah Klein (mail):
JJ,

You said: You also think horrible and wrong are objective facts and not normative conclusions. So much for what you think.

Where did I say that? Furthermore, how does this change the fact that the word "appropriate" in legislation means following the law? Finally, you have still failed to answer the question of whether the UCMJ, National Security Act of 1947 and all other legislation affecting the military is still in place. Is it? Did FISA not need to be followed during Gulf War I? You can't answer, because if you admit that these laws are still place then the whole AUMF authorizing this action falls apart. This is exactly why AG Gonzales could not answer, even though the questions were asked just as directly as I am asking. Answer, please.

Noah
2.9.2006 7:04pm
Jack John (mail):

Noah Klein: When the president provides so much evidence of wrongdoing and horrible policies it is not slander it is reality.



You wrote this in another thread. There is no proof that appropriate means "adhering strictly to Noah Klein's interpretation of FISA".
2.9.2006 7:07pm
Jack John (mail):

Did FISA not need to be followed during Gulf War I?



If someone believed that FISA was always unconstitutional, then, yes, it was unconstitutional in 1991.
2.9.2006 7:09pm
Tom Holsinger (mail):
Noah,

Separation of powers fights are different from political disputes. The former is between co-equal branches of government. Bush v. Gore did not involve that - it was a fed vs. state fight. Chief Justice Rehnquist put it pretty well - that it was a really a question of whether the U.S. or the Florida Supreme Court decided who would be President. And Florida's chief justice told his colleagues that their ruling as worded would be reversed.

The judiciary is the weakest branch - its power relies entirely on public respect for the law, and the Supremes have lost that. It's up to Roberts to salvage what he can.

KMAJ,

Almost like the Kelo case isn't it?
2.9.2006 7:21pm
Noah Klein (mail):
Tom,

I made the point that a President has a positive duty under the Constitution to resist encroachment by Congress and the judiciary on his core powers.

I would not say that the President has a "positive duty," but I would say he/she has an "institutional interest" in defending his power from the other two branches of government. Yet this defense does not allow the president to violate the law. There are various avenues the president has against the legislature. He can veto, he can ask a later legislature to change the law, he can go to the judiciary and assert that the law is unconstitutional and so on, but it can't just violate it. That would place him above the law and that is not system we have.

Please tell me how the UCMJ is unconstitutional. If you can, then you will prove to me that FISA is unconstitutional. Both are the same thing. They both are laws by Congress, signed by the president, which regulate the conduct of the military. Is Posse Comitatus unconsitutional? How about the National Security Act of 1947? These all are laws which regulate the military, how are they unconstitutional?

And you did come out of left field with the "writ" from OBL.

JJ,

You are right. That sentence may not make sense to you because of poor grammar. This is a mistake that I would point out that you and others have made many a time. I don't think it was such poor grammar so that you could not understand, but let me make it more clear.

If Congress says that their legislation did not even consider the NSA program, it is kind of a leap to say that that legislation authorized the executive to take the action, don't you think?

Or if that is too complicated for you, how about this?

Many members of Congress have said that their legislation did not authorize the president to violate FISA. Nothing in the legislative history even shows that they considered foreign intelligence. Don't you think it is quite a stretch for the administration to now say that that legislation allows for that action?

Or if that is too complicated:

Congress already made the NSA program a crime. The AUMF did not address FISA. How did the AUMF alter FISA to allow this program?

Noah
2.9.2006 7:23pm
minnie:
I am fairly confident Cramer and the others were not informed about what is really going on. Glenn Greenwald has on his site today a long article outlining the obvious conundrum of what Gonazales' testimony boils down to. In short, Gonazles said that our government is not monitoring without warrent domestic to domestic communications between known Al Queda members because to do so would have generated too much criticism from the public. We all know it would be insane if such monitoring is not being done, so let's agree to eliminate that possibility. He emphasized that the PRESIDENT had not authorized any warentless domestic to domestic surveillance. Below is my comment to Glenn, which I posted on his site:

Anonymous said...
Glenn, I can think of only one explanation to solve the puzzling either/or conundrum you (finally) highlight. Let's get real. It's inconceiveable that the government is letting known Al Queda members communicate with each other in this country without monitoring their calls. Yet the government has allowed (instructed) Gonzales to say that the President never authorized such domestic to domestic monitoring. I personally think it highly unlikely that Gonazles would be instructed to out and out lie, considering how carefully he chose his words and how thoroughly he was tutored prior to testifying. Therefore, the only expkantion which would eliminate the laughable suggestion that we are not eavesdropping when an Al Queda member talks to another in this country, but would make Gonzales' testimony literally, at least, truthful is that the monitoring is going on, but the President didn't authorize it. Or didn't OFFICIALLY authorize it, meaning another "friendly" government is doing it, or a rogue element, working with Cheney et al, is doing it, people outside our official intelligence community. Since Gonzales limited his denials to "The PRESIDENT didn't authorize it", that doesn't mean someone else high up in our government did not set up such a program, probably farming it out to an overseas location. Those familiar with technology would be able to comment on whether, because of switching devices, etc., a foreign group could intercept domestic to domestic calls, and if it is possible, I believe that is what is being done. If not, a rogue element in this country (Jack Bauer style) is doing it, under instructions from Cheney and Rumsfeld, deliberately bypassing Gonazales and Bush (who probably know, but not "officially") to keep their hands clean. It's more than reasonable to think that those in charge of secret intelligence would want to keep the President's hands clean. It's almost mandatory, in fact, when extra legal things like this are done, as anyone who watches "24" knows. So it's being done, all right, but it isn't technically "authorized" by the President himself, and maybe "our government" is not doing it. But they're behind it all right, and are sharing in the information gleaned. Maybe that's why some of those detainees are there so long, and nobody has been arrested.

Although FISA would give warrents for domestic to domestic calls with probable cause, the reason this secret rogue program was no doubt developed is that most of these domestic to domestic calls would not qualify for probable cause. They are broad sweep snooping, of the type that WOULD upset most Americans, and that's why he said there would be criticism. Yes, there would be.



And is.
2.9.2006 7:26pm
Kovarsky (mail):
Tom,

There's a great line from the Coen Brother's Movie "Miller's Crossing" about this. I don't know if you've seen it, but this is the mob boss's right hand man addressing the boss:

You don't hold elected office
in this town. You run it
because people think you run it.

Once they stop thinking it,
you stop running it.



I've always loved that quote. Anyways, my question to you is how the "you run it because people think you run it" logic actually applies to the SC less than the other branches.

Also, let me clarify. I don't dispute that fewer people think the Court "runs this town" than people think the other branches do. But it's not clear to me why the SC is uniquely dependant on people thinking it versus the other branches.
2.9.2006 7:29pm
Tom Holsinger (mail):
Noah,

It was decided 138 years ago, during the first Johnson administration, that Presidents can lawfully violate duly enacted statutes of Congress, even those passed over his veto. The statute in question is commonly called the Tenure in Office Act.

You should show more respect for precedent.
2.9.2006 7:33pm
Michael B (mail):
Kovarsky,

Suffice to say your and my perceptions of what is offered up as "honest, simple questions" or "without provocation," etc. differs hugely, differs a great deal indeed. You weren't simply seeking clarification, it was more of a power play; you're the one who raised the temperature and then wanted to take on the role of the high-minded head-master. If it had simply been clarification (of this benign post upthread) you were seeking you would have emailed or responded without the put-down, which you initiated, not I.

The notion these are always simple, high-minded discussions without power-plays, put-downs, displays of contempt and blanket dismissiveness, subtle and otherwise, etc. is amusing at best.
2.9.2006 7:33pm
Tom Holsinger (mail):
Kovarsky,

Congress controls the power of the purse. The President controls the power of violence. The judicial branch controls nothing - it is utterly reliant on the other branches.
2.9.2006 7:37pm
Jack John (mail):
Noah,

Because you have stated your argument in so many different ways, much like a sprawling legislative history, I think I would do best to simply refer back to the text of your original statement. Oh, but that was ungrammatical nonsense. I guess I'll just have to ignore you and do whatever I want instead. Is Noah the only one not getting it?
2.9.2006 7:39pm
Jack John (mail):

Many members of Congress have said that their legislation did not authorize the president to violate FISA.

If Congress says that their legislation did not even consider the NSA program,




Well, whose intent governs, the intent of individual members, or the intent of the whole body?
2.9.2006 7:41pm
minnie:
Orin! What are you thinking of? Either you eliminate the Jack John (Polaris) and his playmates from this site at once, and take steps to check out their email addresses so they don't just reappear in alternate equally intolerable guises, or you are going to lose every reasonable poster on this site. Do you really think anyone has the patience to keep scrolling by these long posts by a bunch of children wanting to play games on your site?

Please take note of when you have been hi-jacked, Orin, and do what's necessary to restore order.
2.9.2006 7:51pm
Noah Klein (mail):
JJ,

First, I am sorry, I forgot that I said that. Perhaps I went too far and in that thread I explained my reasoning. But I am not asking you to believe that appropriate means what I say it means. I am asking to believe that appropriate means what historically has meant and what Congress has said it meant.

I am not asking the president to follow the law as I see it, because he won't. The president has never asked for my legal opinion. He is supposed to follow the law though. There is no question that the law says FISA is the "exclusive means" for wiretapping in the U.S. on U.S. persons for foreign intelligence purposes. I have asked you many times to address whether other laws can be violated by the executive during war. You have not said one way or other and thus I think you do not want to address substantive issues, but rather are just trying to attack for the sake of attacking. Good plan, it does dismiss me as a legitimate voice. But it dismisses you too. Please my points or I'm going to just ignore you.

Tom,

You said that this is a political matter and SCOTUS won't address for that reason. I said waht about Bush v. Gore, but how about I give you another one. What about Clinton v. NY? That separations of powers issue. The fact is that while reticent to deal with this issues, they will if 4 justices think they must.

And the Judiciary is not the weakest branch, but a co-equal branch. All branches rely on public respect for the law. The president is not commander-in-chief, but for the constitution and if the military feels so strongly that a president does not deserve that power that do a coup. The same legislative branch. If the executive or the military do feel that they need to follow the laws passed by Congress, they can say they won't. The Judiciary is co-equal and branches requre that the citizens and the military respect the law. That fact does not mean that judiciary will not deal with an issue. Just because something is controversial does not mean they will ignore.

Noah
2.9.2006 7:51pm
Kovarsky (mail):
Tom,

It seems that the judiciary is no more dependent on the executive is to enforce its judgment than the executive is on the judiciary's approval of the constitutionality of its interpretations.
2.9.2006 7:51pm
o' connuh j.:
I thoroughly enjoy reading Jack John's posts. I can also tell Medis is itching to reply but feigns disinterest, all the while contorting to issue oblique ripostes to JJ. What a comical charade.
2.9.2006 7:55pm
Jack John (mail):

Noah: Please my points or I'm going to just ignore you.



Are you coming on to me? Intent is so hard to divine when you have multiple provisions that might or might not contradict each other! I guess I'll just use my discretion and operate on the assumption that you are. No, Noah, I will not please your points, even if that is the "exclusive means" to get you to pay attention to me. I just don't think that would be "appropriate" as I interpret the term.
2.9.2006 8:04pm
Jack John (mail):
Noah: And the Judiciary is not the weakest branch, but a co-equal branch.

Actually, I think Federalist paper No. 78 out-and-out states that the judiciary is the weakest branch.
2.9.2006 8:05pm
o' connuh j.:
Minnie, you are admittedly ignorant of both the law and the technological aspects of this surveillance program. Instead of posting drivel in threads asking for persons to be 'eliminated' from posting while toadying up to Orin why don't you sit back and enjoy the show instead.

Like Jack John I was amused by the paranoia evinced by Medis, who thinks there is some kind of "organized campaign" on VC! I wasn't going to comment on this apparent retardation until Minnie joined the tinfoil brigade, alleging that Jack John is Polaris! Good grief, get a grip.
2.9.2006 8:11pm
Noah Klein (mail):
JJ,

By the way, please show me where "[I] have stated [my] argument in so many different ways, much like a sprawling legislative history." I have said consistently, as so many others have said consistently, that the president can't violate the law. The law is clear. The AUMF did not change that law. Nothing in legislative history shows that Congress wished to change the law.

It is you guys who go back and forth on different issues. First, you guys say that FISA doesn't apply to the program. Then you say that AUMF changed FISA. Then you say FISA is unconstitutional. Each time we demonstrate over and over and over again that you are wrong. Tom brought up the "reasonable expectation of privacy" issue over a month ago. At that time, many people demonstrated that this is just an incorrect reading of the law and a month later he has come back to bring up the same issue. Don't try to malign me.

The reason I cite the statements of individual members is because WE all see a majority of legislators saying that they did not mean what the president says they meant. But having said that the intent of the whole body is the important thing. Show me in the legislative history where the Congress discussed FISA or foreign intelligence and I will shut up. But you can't because they didn't. Thus that means that the laws currently on the board are still the law of the land.

Tom,

First, Johnson was impeached for violating the law. Second, I don't remember the case being adjudicated by SCOTUS. I remember the case being tried in the Senate. Please give me a cite. Either way though, I was simply trying to show KMAJ that this was not unprecedented for the Congress to try to encroach on the executive. But even it was unprecedented I still have not heard from people defending the president why FISA is an unconstitutional encroachment on executive power, but the UCMJ is not.

Noah
2.9.2006 8:17pm
jahoulih:
Jack John wrote,

"Now, had you said Kathleeen [sic] Sullivan instead of Laurence Tribe, I might agree with you. But, then, she failed the California bar, and I have a feeling that Bush could pass it. After all, despite his dyslexia (or whatever it is), Bush has an [sic] 122 IQ, if I am not mistaken."

I think it quite possible that George Bush has a 122 IQ. But I find it odd that anyone would (a) suppose that a 122 IQ is all that impressive, (b) presume that George Bush's IQ is higher than Kathleen Sullivan's, or (c) think that an American with a 122 IQ but no legal traning (except perhaps for cursory review of tendentious DOJ memos) could pass the California bar.
2.9.2006 8:21pm
Jack John (mail):

Noah: First, Johnson was impeached for violating the law. Second, I don't remember the case being adjudicated by SCOTUS.


SCOTUS held that Johnson was right in Myers v. United States.


First, you guys say that FISA doesn't apply to the program. Then you say that AUMF changed FISA. Then you say FISA is unconstitutional.


1. Are you insulting me because I am quarter-Italian? What is with this "you guys" stuff? No need for that, Noah.
2. None of the arguments you limn are inconsistent. One can argue that: The program is outside of FISA, AUMF supercedes FISA anyway, and to the extent that the program is withing FISA and AUMF does not supercede FISA, FISA is unconstitutional as applied to that narrow context. One could also separately argue that FISC is unconstitutional, but no one seems to be making that argument.


Noah: Each time we demonstrate over and over and over again that you are wrong.



I don't know about that! I have seen some pretty weak arguments in here. Some people hae cobbled together arguments from dissents and concurrences in unrelated cases! And you even admitted, Noah Klein, "I just think he is a horrible president."


Noah: "The intent of the whole body is the important thing... Nothing in legislative history shows that Congress wished to change the law."



If you're concerned with the whole body's pronouncement, then you look to the text. You only go back to look at individual intent in the legislative history if you think individual members' interpretations govern. So, even if it is true that "nothing in the legislative history blah blah blah...", legislative history is utterly irrelevant to what the text of the law is. And whether a past Congress intended to change the law is irrelevant to whether the law was changed. You can accidentally crash a car into the egg section of a supermarket, but you don't get to say that the crash did not happen just because you didn't intend it, because everyone can see you have egg on your face. (And you ran over a baby.)
2.9.2006 8:29pm
Jack John (mail):

But I find it odd that anyone would (a) suppose that a 122 IQ is all that impressive, (b) presume that George Bush's IQ is higher than Kathleen Sullivan's, or (c) think that an American with a 122 IQ but no legal traning (except perhaps for cursory review of tendentious DOJ memos) could pass the California bar.



1. A 120 IQ is higher than most people who pass the bar. It is also higher than average. I never said it was impressive.
2. I never presumed Bush was smarter than Sullivan.
3. I never presumed that Bush would take the bar without legal training; you did.
4. At most, I implied that Bush is smart enough to pass the California bar if he studied for it. Kathleen Sullivan, unless she didn't study for the California bar before taking it, is not. And if she didn't study for it, then it is reasonable to infer she has less than a 120 IQ.
2.9.2006 8:33pm
jahoulih:
I beg your pardon for not reading "I have a feeling that Bush could pass it" to mean "I have a feeling that Bush could pass it if he spent three years in law school and took a bar review course."
2.9.2006 8:37pm
Noah Klein (mail):
JJ,

I meant please address my points. I am sorry I missed a word. I am so glad that you are childish. It makes it so easy lampoon you. Do you really have no brain? Can you not recognize legitimate argument from childish responses? Perhaps you can't. I'm going to try it one more time.

Is the UCMJ different from FISA? If so, how? If the UCMJ is still in place after the AUMF, then why not FISA?

Noah
2.9.2006 8:37pm
Mary Katherine Day-Petrano (mail):
I don't know firsthand about the President's IQ, and maybe Bruce Hayden can help me here -- but it would appear my disability speech recognition reasonable accommodations are being denied because they have been classified by the Admnistration as "an incident of war" seeing as all the research I have been doing, reading unclassified military budgets and reports and such, basically indicates the miltary is using this technology not only to data mine vast amounts of information (see my earlier posts on other NSA threads), but to operate all manner of military aircraft and battle field equipment via speech recognition. The speech recognition is also at the core of the biometrics, i.e., my prevous posts on the REAL ID Act Natonal driver's license 'smart cards' and RFID spy chips. If am not mistaken, a person who has mastered this technology could conceivably (if a hacker, which I am not) master the knowledge how to comandeer operation of military equipment.

THAT's the basis of the disability speech recognition denals at issue in Sup Ct. Dockets Nos. 05-7287 (rehearing) &05-7771. A head-on conflict between disability rights and national security.
2.9.2006 8:38pm
Michael B (mail):
"I would not say that the President has a "positive duty," ... There are various avenues the president has against the legislature ..., but [the President] can't just violate it. That would place him above the law and that is not system we have."

In fact, "positive duty" is, constitutionally and as supported with case law, more to point; aspects of the discussion reflect Separation of Powers concerns and within that scope reflect concerns with Congressional power grabs (Checks and Balances work in all directions, not solely to check the executive, but to Constitutionally check Congress and the Judiciary as well). In drawing upon Clinton's Asst. AG for the Office of Legal Counsel, Walter Dellinger, this is one of the things the Cunningham brief (see pg. 5 and pgs. 14 thru 17) brings out directly.

E.g., Cunningham cites Myers vs. United States, 272 US 52 (1926), Freytag vs. Commissioner, 501 US 868 (1991), Youngstown, among others still.
2.9.2006 8:39pm
Jack John (mail):
Well, you can't sit for the bar without 3 years of law school...and why wouldn't he take BAR/BRI after doing 3 years of law school? Of course that is implied!
2.9.2006 8:40pm
Jack John (mail):

I beg your pardon for not reading "I have a feeling that Bush could pass it" to mean "I have a feeling that Bush could pass it if he spent three years in law school and took a bar review course."



Well, you can't sit for the bar without 3 years of law school...and why wouldn't he take BAR/BRI after doing 3 years of law school? Of course that is implied! Your reading of that phrase makes no sense.
2.9.2006 8:42pm
Jack John (mail):

Is the UCMJ different from FISA? If so, how?



I actually answered this. One could easily distinguish them this way: UCMJ is constitutional. FISA is unconstitutional. FISA was unconstitutional prior to the passage of AUMF.
2.9.2006 8:43pm
Jack John (mail):

I meant please address my points. I am sorry I missed a word.



I actually did address your points. What you interpret as me makig fun of your grammar is really me exploiting your grammatical mistakes to make meta-points about an approach to interpretation that can easily dismiss your arguments. That approach to interpretation is a hurdle you have yet to clear. And it is why your side of the debate is losing and will keep losing.
2.9.2006 8:45pm
Noah Klein (mail):
JJ,

Are you insulting me because I'm Jewish? Are you too slow to read? Did you have a potty accident? It can go both ways. You have failed to demonstrate that you anything other than child. No wonder the DOJ is stupid arguments, they have you as a lawyer there. Honestly, have you guys even won a case in front of the Supreme Court in the past couple years. (Gonzales v. Oregon - lost, Hamdi v. U.S. - lost, Rasul v. U.S. - lost). Perhaps you read the section underneath the Post window.

The legislative history of a piece of legislation is pretty important to understand what it intending to do. What you do described (running into the egg section) was negligence. This does not apply to legislative acts. The legislature does not pass laws that negligently changes other laws. And to quote Justice Kennedy "they do not hide elephants in mouseholes." You can't show that the intent of the AUMF was to change FISA or the UCMJ or any other law. It was only authorize force. Thus how could it change FISA? I know that you to childish to address this point, so I don't see why I keep making except to try to show that you are completely ridiculous.
2.9.2006 8:51pm
jahoulih:
In California, you can also have


(b) Studied law diligently and in good faith for at least four years in any of the following manners:

(1) In a law school that is authorized by the State of California to confer professional degrees; is registered with the Committee; and which requires classroom attendance of its students for a minimum of 270 hours a year; or

(2) In a law office in this State and under the personal supervision of a member of The State Bar of California who is, and who has been continuously, an active member of The State Bar of California for at least the last past five years; or

(3) In the chambers and under the personal supervision of a judge of a court of record of this State; or

(4) By instruction in law from a correspondence law school requiring 864 hours of preparation and study per year and which is registered with the Committee; or

(5) By any combination of the methods referred to in this subsection (b).


And I'm willing to bet that Kathleen Sullivan didn't do California Bar/Bri (much to her regret, no doubt) - so why would I assume that about Bush?

If Bush's application to UT Law had not been rejected, and he had taken whatever appropriate bar review course was available in those days, I think it quite likely that he could have passed the California bar. If he were to embark on the same educational program today, I have my doubts. Age and the bottle extract their price.
2.9.2006 8:54pm
Noah Klein (mail):
JJ,

How are we losing? Have you yet address the issue of the UCMJ? No. Because you can't. I am not sure if it is because you lack intelligence or if you just plain have nothing to argue with, but either way I keep on making substantive points and you keep on addressing side issues. Such as saying, "Are you coming on to me?" Where are you going to next? Let's see. Am I using conjunctions when I shouldn't? Does that have anything to do with my interpretation? Let's see your next shoe bang.

Noah
2.9.2006 9:05pm
Noah Klein (mail):
JJ,

Sorry we cross-posted. It would be great if you explained the differences between the two laws. One regulates the military and other regulates the military. Where's the difference?

Noah
2.9.2006 9:10pm
Jack John (mail):
Wow, thanks for playing the Jew-card, Noah, though I never made any comments about your religion. You are correct that "The legislative history of a piece of legislation is pretty important to understand what it [sic] intending to do." Unfortunately "understanding what it [sic] intending to do" only matters if legislative intent is relevant. It isn't. The text is what matters.

That common law tort principles could be applied to the imagery I used is likewise irrelevant. No one cares whether "negligence applies to legislative acts." If you think that was the purpose of my example, you're dumber than even your grammar suggests. The point of the hypothetical was to show that claiming a lack of intent doesn't let you off the hook if an event happened in reality. Claiming that X didn't happen is meaningless if we all saw X happen. Claiming you lacked the intent to do X is meaningless if you did X. One of the reasons why we ignore politician's claims about their intent after the fact is that they often lie because polls change. They often intend to do X, and then when the fact that X was done becomes unpopular, they claim they never intended to do X. So, when it is popular to give the President imperial powers, they sign an over-broad authorization that includes whatever the President determines he needs. But then a little bit later, when it becomes clear that people don't like that so much, they claim they never intended the authorization to be so broad. Of course, they are lying. That is why we ignore them and focus on the text of the laws themselves.

Now, this is not categorical, Noah, because there are reasons to ignore the text of laws too. For instance, if a legislature attempts to do something it lacks the power to do, e.g., bind a later legislature. If the 98th Legislative Session were to say to the 111th Legislative Session, "You can't use your legislative powers to give the President powers of immensely broad scope," we would ignore that, because past legislatures can't bind future ones. A future legislature can always amend the law.

So the real question is whether AUMF was broad enough to amend FISA -- at least that's the argument you want to have, even though I don't have the corollary argument o yours for that to be our dialogue, but for the sake of argument, I'll pretend that we are arguing at the same level. That question cannot be resolved by running to politicians and asking them, "Hey, Mr. Up-For-Re-Election-In-A-Few-Months did you authorize the President to do X, which our polls say 90% of the people in your district oppose, now that they have read our mischaracterizations of it in the newspaper?" Of course Mr. Up-For-Re-Election-In-A-Few-Months is going to say, "I never intended to authorize that." Indeed, Bill Clinton never had sexual relations with that woman. The question has to be resolved by looking to the time at which the authorization was given and the language of it. Frankly, AUMF is breath-takingly broad and expansive. I was shocked when I read it, because it is an enormous grant of power. But such an enormous grant of power was given because we had just been struck by terrorists and Ground Zero, nay, the Pentagon was still billowing coils of black ash into the sky. Your cutesy interpretation of AUMF is to say -- "Well, it can't overrule FISA, because it isn't drafted narrowly enough." -- but that misses the point that AUMF was drafted so broadly because it was an unprecedentedly enormous grant of power. If you want to hold someone accountable for such an expansive delegation of power, hold Congress accountable. But you certainly aren't helping the American people hold Congress accountable for what you perceive as its dereliction of duty by claiming that the insincere posturing of Congressmen up for re-election should be the basis for our interpretation of the law. Not only did Congress authorize such an expansive grant of power, Congress is now avoiding responsibility for it, passing the buck along. And you're buying it, hook, line, and sinker.
2.9.2006 9:12pm
Jack John (mail):
jahoulih

Thanks for looking that up. I didn't know that when I posted. So I couldn't have meant that. I have a feeling you didn't know that either, until you just went and looked it up. So thanks for playing "Jahoulih is a liar."
2.9.2006 9:16pm
jahoulih:
I didn't know the specifics, but I did know that the requirements for sitting for the California bar are rather loose (which may or may not account for the high failure rate). So thanks for playing "Jack John is a schmuck."
2.9.2006 9:19pm
Jack John (mail):

So thanks for playing "Jack John is a schmuck."



Given that the original argument was whether I presumed Bush could pass the bas without legal training, you proved only that you're schmuck. There is no way Bush could take the California bar without years or legal training. Saying "I have a feeling that Bush could pass it" does not presume we wouldn't meet the prerequisites to sit for the bar (in fact, it assumes that he has met them). I thought that he would have to go to law school and take a prep course, but apparently there are other legal training options. Either way, your original criticism of me was wrong.
2.9.2006 9:24pm
Noah Klein (mail):
JJ,

I played the religion card, because you played the ethnicity card. Both were as random as the other.

But okay you finally a substantive argument. You say that, "Frankly, AUMF is breath-takingly broad and expansive." This is odd, because it is no more expansive than other authorizations for military force. But let's say you are right. This would mean that all laws, except for the War Powers Resolution, that affect the military are no longer on the books. I am guessing then that you think that McCain's legislation is overruled by the AUMF. Furthermore, I am guessing that you think that the UCMJ is overruled by the AUMF or many other acts of Congress. This is just plain stupid.

Of course, these laws were not amended or overruled by the AUMF, becaues the AUMF doesn't address them. You went to law school and you are also in the government. You know that judges do not read a later general law to conflict with an earlier specific law, unless the legislative history shows this is what Congress intended. Thus, unless the president can show that the Congress intended to amend FISA with the AUMF, it is quite a stretch to read it as such. Even if we were to read that there was a conflict and the later law (the AUMF) amended FISA, why would Congress less than a month later amend FISA with the Patriot Act (this is an example of the ridiculous arguments that were brought by you and others on this blog that we countered and you never showed we were wrong). Do have anything else or do want to keep on repeating the same arguments? If you want to repeat the same arguments, because I'm tired of you.

Noah
2.9.2006 9:34pm
Jack John (mail):

But let's say you are right. This would mean that all laws,



No, it does not. If that were true, the Court would have held that in Hamdi. It did not.
2.9.2006 9:38pm
Jack John (mail):

You know that judges do not read a later general law to conflict with an earlier specific law,



The Court did just that in Hamdi.
2.9.2006 9:39pm
Jack John (mail):

Even if we were to read that there was a conflict and the later law (the AUMF) amended FISA, why would Congress less than a month later amend FISA with the Patriot Act



Who cares about the intent of Congress? See my earlier point.
2.9.2006 9:39pm
Jack John (mail):

Of course, these laws were not amended or overruled by the AUMF, becaues the AUMF doesn't address them.


No, the point is it's an abstract hypothetical question that is unanswerable at the level of generality you have posed it. Your argument is utterly worthless. Put forth a concrete factual situation that could be litigated in a courtroom and I'll show you how legal reasoning would apply to it. Otherwise, you are just blowing smoke.
2.9.2006 9:42pm
jahoulih:
"There is no way Bush could take the California bar without years or [sic] legal training."

No doubt he could find a way, if national security depended on it. Cf., e.g., "Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way."
2.9.2006 9:42pm
Jack John (mail):

But okay you finally a substantive argument.



That your methodology is fundamentally flawed is a substantive argument.
2.9.2006 9:43pm
Jack John (mail):

I am guessing then that you think that McCain's legislation is overruled by the AUMF. Furthermore, I am guessing that you think that the UCMJ is overruled by the AUMF or many other acts of Congress. This is just plain stupid.



Yes, and it is YOUR argument. I have never made any of those claims.
2.9.2006 9:45pm
Jack John (mail):

Thus, unless the president can show that the Congress intended to amend FISA with the AUMF, it is quite a stretch to read it as such.



The Executive can interpret the conflict between FISA and AUMf itself, just as it can interpet them both in light of Hamdi. He doesn't have to look to Congressional intent.
2.9.2006 9:48pm
Jack John (mail):

No doubt he could find a way, if national security depended on it.



No, bar regulations are not an "incident of war."
2.9.2006 9:50pm
Tom Holsinger (mail):
Noah,

You demean yourself by pretending that I have made different arguments in contending (a) that FISA doesn't apply to foreign communications (one end in a foreign country) and, (b) that it would be unconstitutional as applied concerning its warrant requirement for some domestic communications (both ends in the U.S.) and, (c) that it is facially unconstitutional.

If you really, really, meant to say that, I'd love to litigate against you with a lot of money on the table.

(a) FISA has a clause which effectively exempts surveillance of foreign communications from its definition of electronic surveillance ("expectation of privacy"). I was there. I talked to one of the Congressmen who drafted FISA. They put that clause in there deliberately. You can read about this in the two books by James Bamford about the NSA. Surveillance of foreign communications is also an inherent Presidential power, and has been for several hundred years (the mail initially, then telegrams, then phone calls, etc.).

(b) Presidents have the inherent Constitutional authority to conduct domestic electronic surveillance of enemy agents- that was the authority used during World Wars One and Two, and 1946-78 (FISA was enacted in 1978). I don't believe there were any statutes on the subject at all during WWI, but there statutes prohibiting the practice enacted during the 1920's and/or 1930's - read David Kahn's books on electronic intelligence. Those statutes were deemed applicable to military intelligence and counter-intelligence in the period immediately prior to WWII, and then ignored thereafter.

(c) No statute can reduce a President's inherent Constitutional authority, so FISA is facially unconstitutional in its clause stating that it is the sole authority for domestic electronic surveillance. Presidents exerted their constitutional authority in conducting such surveillance despite the existence of prior statutes prohibiting such practices.

By any chance, are you not a lawyer?
2.9.2006 9:50pm
OrinKerr:
An Important Message for Jack John:

I just returned from dinner to find this most remarkable exchange -- it is nasty and ugly, and has absolutely no place at the Volokh Conspiracy. Jack John, if you post one more post with this kind of nasty personal attack -- a judgement I will make at my discretaion -- I am going to block your account and your IP address. That kind of post simply has no place on this blog, and absolutely no place in comments to a post I have authored.

Orin Kerr
2.9.2006 9:55pm
Jack John (mail):
He's a law student, Tom. And, apparently, a bad one.
2.9.2006 9:55pm
Noah Klein (mail):
JJ,

First, Hamdi did not rule that the later general law overruled the earlier specific law. It did rule that detaining people is a "fundamental incident of war" and thus the earlier specific law did not apply to the case at hand. The earlier specific law is still in place. If the earlier specific law would have specifically addressed the issue of detaining people on a battlefield, then the Court would have ruled otherwise.

Second, why is one law that governs the military amended by the AUMF, but the other law not? This doesn't make sense, especially considering that FISA addresses the issue of what is supposed to happen during wartime. How do you differentiate the UCMJ and FISA? Aside from the fact that you like one law and don't the other, why is one amended and the other not? Why is McCain's legislation bad, but Posse Comitatus okay? It is this hypocrisy that I was talking about earlier.

Noah
2.9.2006 9:55pm
Jack John (mail):
I actually answered your concerns. Why don't you explain where this canceling out of all these laws takes place? It doesn't happen in court-rooms, because courts decide cases narrowly. So your attempt to reveal hypocrisy makes no sense. If that is a nasty attack, then so be it.
2.9.2006 10:01pm
Noah Klein (mail):
Tom,

We dealt with this issue a month ago. Why are you coming back and making it again. At that I showed you the definition of "expectation of privacy." At that time, I showed the case involving Nader, where the fact that "expectation of privacy" was subjective was laid out. Finally, Medis and others demonstrated that what foreign government does, does not change the laws that regulate our government. All you have ever said is that I was there and I remember and also that Bamford laid this out in his book, yet you've never quoted or demonstrated beyond our having to take your word for it. SHOW US. The 1920's and 30's legislation would really help your point. What is it? I have never heard of it in this debate and I would love to see it. Finally, you and JJ and KMAJ and others have said that FISA does not apply, when we point out that the AG says it does, you say he's lying. You say that FISA is unconstitutional, yet you fail to address how FISA is different than others that apply to the military. These are the arguments that are different and jarbled and foolish.

Noah
2.9.2006 10:07pm
Tom Holsinger (mail):
Professor Kerr, I'd appreciate it if you would announce it when JJ is banned. I didn't say "if".
2.9.2006 10:08pm
Noah Klein (mail):
JJ,

You are saying that the AUMF cancels, overrules or amends FISA. You are saying this because 1) I guess you believe and 2) this the argument made by the administration. When I asked you to explain why the AUMF cancels, overrules or amends FISA, you said that "such a great grant of power" thus overrules FISA. I said okay, if that's so then why overrule other laws and I am still waiting for my answer. If its a "great grant of power" and it is very broad, then why wouldn't overrule every law affecting the military? You can't explain why, that is why your argument is ridiculous.

Noah
2.9.2006 10:15pm
Jack John (mail):
Noah,

There is no reason to believe that is an implication of anything I have stated. If you can tell me where this cancelling out or overruling would take place, then I suppose I will consider it a valid critique. But I do not think you can tell me, because there is no place where it would occur, because it would not happen.
2.9.2006 10:20pm
Jack John (mail):
You are also mischaracterizing our dialogue. I never made the straw-man that you would like me to have made. I made a very different argument about how your mode of interpretation is fundamentally flawed.
2.9.2006 10:21pm
Noah Klein (mail):
JJ,

Let's go back to the beginning. Why is it that FISA does not apply to the NSA program?

Noah
2.9.2006 10:23pm
Jack John (mail):
Let's not. I take it you realize you have reached a dead-end. Have a good night.
2.9.2006 10:24pm
Noah Klein (mail):
JJ,

I have not, but you seem to have forgotten that my argument is that FISA applies. Your argument as far as I can ascertain, because it keeps on changing, is that it does not because the AUMF amended it (This is the argument of the AG, so I am assuming its your argument.) But even if the AUMF applied, FISA is unconstitutional. If this wrong, tell me tomorrow. If it is right, then please tell me why FISA can be circumvented, but not the UCMJ? Have very good night.

Noah
2.9.2006 10:29pm
Noah Klein (mail):
JJ,

That should be "Have a very good night."

Noah
2.9.2006 10:31pm
John Lederer (mail):
As I understand the administration's argument it is not a question of AUMF "amending" FISA. Rather, FISA allows surveillance authorized by some other statute. AUMF, the administration argues, is such a statute. It authorizes surveillance because surveillance of the enemy is an "incident of war".
2.9.2006 11:52pm
KMAJ (mail):
Noah,

UCMJ and FISA are different statutes performing different functions. UCMJ is a code of conduct that would fall under regulations and is not a direct intrusion of the operation and prosecution of the war. FISA, on the other hand, directly intrudes and inserts itself into the operation and prosecution. There is a vast difference, the UCMJ does not create a process or body/court that presents an obstruction to military actions, FISA creates just such an obstruction the impedes timeliness, effectiveness and efficiency. When FISA steps outside the domestic realm, it is on shaky constitutional ground.

Alexander Hamilton in Federalist #74 stated: ""The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority." Intelligence gathering is a function of directing the war.

One should pay closer attention to the vesting clauses, Article II states the executive power 'shall be vested' but Article I states Congres has the powers 'herein granted'. The latter is definitive and enumerated, the former is unenumerated gving all executive functions not given to Congress to the executive branch. Intelligence gathering in wartime, an executive function as CIC, is NOT one of Congresses enumerated powers, as such, deference must be given to the executive branch if one wishes to adhere to the Constitution. Beyond that, in all foreign affairs, the executive branch has primacy.

Maybe it is over a half century of left leaning jurisprudence, since FDR packed the court, that has shaped the legal professions conceptual abilities in that direction because that is the perspective in which the majority of law schools curriculum is taught. It is documented law school professors are predominantly, by a wide margin, to the left of the political spectrum. What other reason is there for the legal profession being out of balance with the public ? It may also explain the willingness to dismiss out of hand those who approach law from a different perspective than the 'accepted' one taught in law school.

That observation is not intended to demean, because similar observations can can be applied to other fields, journalism, economics, it is a sociological viewpoint. It is human nature to adhere to that which we are taught, it is much harder to question authority, especially when ones grade depends upon that authority, and it is easier to go along with the majority.

When society shifts, those that adhere to the known or accepted path, find adapting to change harder, thus human nature kicks in and fights change. When societal attitudes and values shift, it is monolithic entities, like the judicial and journalistic professions, that have the hardest time adjusting, and thus lag behind the cultural shift. It is why you now see more contrary opinions appearing in the legal profession and has led to the rise of the new media. It may be too late for the old media to ever again enjoy the monopoly on information the public receives that it once did, feeding one flavor of news, thus controlling public opinion. The legal profession, while not subject to the same market forces, can find itself the object of low public approval if their perception becomes one of elitist intent that seeks to impose their views on the people. The rule of law does not exist in a vacuum, if it does not reflect the society it governs, it quickly becomes a dictatorship. A free society requires the laws reflect the people of that society.
2.10.2006 12:22am
Noah Klein (mail):
John,

You are right. I believe that the argument you lay out is one element of the administration's defense of the NSA program. The legislative history demonstrates that this is not a proper reading of that statute, as Prof. Kerr pointed out in an earlier thread. But I also believe that the Moschella letter and the DOJ white paper as saying that principle of the Hamdi decision says that the law prohibiting the detention of American citizens was found not to apply to battlefield detention because that is a fundamental incident of war. Therefore, the NSA program must be legal, because the AUMF said that the president should use "all necessary and appropriate force" and this surveillance is a fundamental incident of war. I think that this explanation is weak, because the law specifically proscribes the procedures to be followed when war is declared.

KMAJ,

First, while I agree that I think the legal community is to the left of the general public, I do not agree that this is due to the law schools and professors. Conservatives complain all the time that universities are full of liberal professors. This is probably true. Yet even though most universities are full of liberal professors, a majority of people with an undergraduate degree vote Republican. If you look at the demographics of every poll I have ever seen, you will see that a majority of people with undergraduate degrees vote Republican. I think the reason that a majority of lawyers are more liberal than the general public is because of the people who choose the law and not because of the influence on them from the law schools.

Now to the issue of the UCMJ and FISA. I think one problem we have in this debate is that I and I think the people who agree with me see FISA as a regulation of intelligence and the FISC as the body overseeing that regulation. I think you and the people who agree with you see the FISC as body trying to prosecute the intelligence-gathering or at least involved in the prosecution of that activity. If I am off-base, please tell me. If I am right, I hope there is a way we can find a meeting of the minds.

Thus given my understanding of FISA, it is a regulation for which FISC oversees that regulation in the same fashion that the UCMJ is a regulation for which courts martial oversees that regulation. FISA gives the judiciary power to oversee FISA and the UCMJ gives the executive authority to oversee UCMJ with the ultimate review at the Supreme Court. And to prevent any obstruction or an instrusion into the effectiveness or efficiency of foreign intelligence FISA allows for an emergency provision.

You are right about the vesting clauses of Article I and II. And thus Article II gives the executive more leeway, but the nature of the executive means that when the Congress makes a law which Article I gives them the power to make the executive must follow. I understand that you think that Congress overstepped its bounds here. Yet as I said above this is a regulation of the military, which Article I expressly authorizes Congress to make.

Noah
2.10.2006 1:18am
Michael B (mail):
Porter Goss, NYT today, Loose Lips Sink Spies.

v. 18 U.S.C. § 798, 5 U.S.C. § 1213. Make them accountable.

h/t A/F.
2.10.2006 2:10am
KMAJ (mail):
Noah,

I should be clearer, it is the law that you are taught in law school that shapes your opinions. If you are trained to refer to post FDR court decisions, your view of the law is going to be shaped by the slant the law took and was interpreted during that time. You have to admit that most precedent that is sited is post FDR due to being the most recent. That does not mean every decision leaned left, but a preponderance did and therefore their interpretations of the Constitution. Let me state clearly, I do not think, for the most part, it is a deliberate or intentional to accept left leaning interpretation. It is inherent in many professions, legal, journalism, economics to develop a self-view that they understand things better than the common man which leads them to believe they know what is best for the people. It is when that attitude or feeling innoculates itself in our way of thinking, we forget the Constitution and government are of, by and for the people, not of, by and for lawyers, journaists or any other small segment of society. That thought process leads to elevating oneself to a superior level of the shepherd guiding all the subservient sheep, regardless if that is where they want to go.

You miss the point I made on FISA vs UCMJ, FISA actually creates a body/court that is part of the decision making process, the UCMJ does not. That body/court intrudes and obstructs the timeliness, efficiency and effectiveness needed during time of war. Was it strictly an oversight function, rather than decision making function, it would be on more solid ground. The courts decisions effect the prosecution of the war, so it is intrusive and not benign.

Article I does not give Congress the authority to encroach on executive branch authority or to usurp it and give it to another branch. Especially in the area of the prosecution of war, legislative branch authority is at its weakest, while the executive branch powers are at their zenith. There are many cases that uphold that premise.
2.10.2006 2:38am
Kovarsky (mail):
Michael B,

Subchapter (a) of 18 USC 798 quite plainly does not prohibit disclosure of all classified information. It punishes disclosure of classified information that falls into 1 of 4 categories. I am asking this question earnestly - which of the 4 categories of classified information disclosure does this fall into:

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—
(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—


i would also encourage people - in the process of determining whether there exists liability for leaking the information - the provision of the subchapter that follows the above:

(c) Nothing in this section shall prohibit the furnishing, upon lawful demand, of information to any regularly constituted committee of the Senate or House of Representatives of the United States of America, or joint committee thereof.

also, would you mind summing up for me the list of people (without omitting response to the above) that the "leaker" is to go to in lieu of the press, in order of progression?
2.10.2006 2:38am
Kovarsky (mail):
Just to be clear,

I think we're talking about (a)(3) right - I only asked because I'm going to try to look up case law on it.
2.10.2006 2:41am
KMAJ (mail):
Kovarsky,

I'll give you a jump start. You might want to satrt with the Pentagon Papers case:

NEW YORK TIMES CO. v. UNITED STATES, 403 U.S. 713 (1971)

Justice Douglas' concurrence deals with the press aspect:

There is, moreover, no statute barring the publication by the press of the material which the Times and the Post seek to use. Title 18 U.S.C. 793 (e) provides that "[w]hoever having unauthorized possession of, access to, or control over any document, writing . . . or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates . . . the same to any person not entitled to receive it . . . [s]hall be fined [403 U.S. 713, 721] not more than $10,000 or imprisoned not more than ten years, or both."

The Government suggests that the word "communicates" is broad enough to encompass publication.

There are eight sections in the chapter on espionage and censorship, 792-799. In three of those eight "publish" is specifically mentioned: 794 (b) applies to "Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates . . . [the disposition of armed forces]."

Section 797 applies to whoever "reproduces, publishes, sells, or gives away" photographs of defense installations.

Section 798 relating to cryptography applies to whoever: "communicates, furnishes, transmits, or otherwise makes available . . . or publishes" the described material. 2 (Emphasis added.)


And Justice White's concurrence:

The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 5 makes it a crime to publish certain photographs or drawings of military installations. Section 798, 6 also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems [403 U.S. 713, 736] or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. 7 If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they [403 U.S. 713, 737] publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.


And this case:

BARTNICKI et al. v. VOPPER, aka WILLIAMS, et al.

The above is interesting in that it grants the press authority to publish illegally acquired wiretaps. Basically allowing the media to invade your privacy, provided they are not directly responsible for the illegal wiretap they acquire.

As far as Whistleblower cases, once someone goes to the media with classified information, they lose Whistleblower status and protection.

The Intelligence Community Whistleblower Protection Act of 1998 shields employees from retribution if they wish to set out evidence of wrongdoing. When classified information is at stake, the complaints must be leveled in camera, to authorized officials, like the inspectors general of the agencies in question, or to members of congressional intelligence committees, or both. Neither the New York Times nor any other newspaper or television station is listed as an authorized channel for airing such complaints. (Commentary Magazine / Has the New York Times Violated the Espionage Act? / Gabriel Schoenfeld / March 2006)
2.10.2006 4:02am
Noah Klein (mail):
KMAJ,

I understood what you said completely. As I pointed out above, I thought that you say the FISC as participatory in the decision-making process of choosing who to surveil and who not to surveil. I disagree with this assessment. I do not see the FISC as part of the decision-making process. I see it as oversight body. FISA requires that there be probable cause to surveil a U.S. person on U.S. soil. The FISC only ensures that the executive meets this standard. I see the FISC just like courts martial. Both ensure that the executive meets the standards laid out in the law. One does so before the action governed by the law is taken and sometimes after. The other tries those people who take actions that violate the law. Both have criminal penalties for not following the law. I do not see a difference. With the emergency provisions, how are courts martial different than the FISC.

FISA has an emergency provision, which allows the executive to upon the AG's certification begin surveiling a person and then later receive approval from the FISC. I do not see how this law impedes the executives efforts to surveil U.S. persons beyond requiring there be probable cause that this person is an agent of a foreign power. You may not agree with the standard, but Article I definately allows Congress to make such a standard, since it authorizes the legislature to make the rules and regulations governing the military. I completely understand how the AG, the president and you can feel that the bureaucracy can prevent the NSA moving quickly, but that is not the law's creation, but the executives creation. And the executive can eliminate all the impediments that prevents the NSA from acting as quickly as it thinks necessary.

Noah
2.10.2006 4:04am
KMAJ (mail):
Noah,

The National Commission on Terrorist Attacks Upon the United States - Monograph on Terrorist Financing after report stated that the FISA process was burdensome and slow and that they were overloaded. As such, that is intrusive and a negative influence on timeliness, efficiency and effectiveness. Any body/court that involves itself in before the fact decision making is a usurpation. Had such a court been in force for WWI and WWII, we would have been in serious trouble. The judicial branch is as much a deliberative body as the legislative branch, they are not equipped to make fast decisive decisions. Your 72 hour window does not provide nearly enough leeway, with reports it can take months sometimes to get warrants. I do not say this disparagingly, but I think it would besafe to say you have no experience in the area of prosecuting a war and the need for real time intelligence is critical to success.

AN FBI INSIDER’S GUIDE TO THE 9/11 COMMISSION REPORT By Mike German

The counter-intelligence technique creating the most problems for the FBI’s current counterterrorism effort is the reliance on Foreign Intelligence Surveillance Act warrants for terrorism investigations. FISA was originally developed as a technique to regulate FBI monitoring of foreign intelligence targets. All that needs to be shown to obtain a FISA warrant is that the target of the requested surveillance authorization is an “agent of a foreign power” and the intelligence is being gathered for a national security purpose. When terrorism was identified as a national security matter, FISA was amended to include international terrorist groups as “foreign powers,” allowing agents to seek FISA authorized warrants in terrorism cases. Commentators often speak of FISA authorization as something that is fairly easy to obtain, and civil libertarians worry that the FBI will use FISA as a dodge to get criminal evidence when they don’t have probable cause to get a criminal wiretap order, but this is far from true. Although I have never written a FISA request, I know from others who have that the process is as arduous, frustrating, and time consuming as writing a criminal wiretap request. A 9/11 Commission Staff Monograph on terrorist financing published after the final report was issued gives a detailed picture of the intractable FISA authorization process (the Monograph can be found on the 9/11 Commission web page).

But terrorism is a crime as well as a national security issue, so authorization for wiretaps and search warrants in terrorism cases can also be sought from criminal courts. Title III, which regulates electronic surveillance, and the 4th Amendment, which regulates search warrants, require a showing of probable cause to believe criminal activity is taking place. Clearly a different standard than a FISA warrant, and certainly no easier a standard to meet, but if you can prove a person is part of an international terrorist group, as required under FISA, you can probably use the same information to show probable cause of criminal activity in a Title III request. International terrorist groups only become terrorist groups by committing acts of terrorism, which is a violation of criminal law. So if you have a choice of which type of warrant to seek in a terrorism case, which should you choose?

First, think of this from a purely logistical standpoint: there is one FISA court in Washington, D.C.; there are 94 federal judicial districts spread throughout the U.S. and its territories. The Commission staff found two and a half years after 9/11 that the FISA process “continues to be long and slow” and that the increase in FISA requests after 9/11 is “overwhelming the ability of the system to process them and conduct surveillance.”

But using FISA instead of criminal warrants is also counter-productive to information sharing because information collected through FISA is highly classified. The Patriot Act removed many of the restrictions that limited sharing FISA information between FBI counter-intelligence agents and FBI criminal agents, but classification issues still restrict the way that intelligence is processed, stored, and transmitted between agents, and between agencies. Worse, it prevents any sharing at all with state and local law enforcement, and complicates admissibility in criminal courts.

Success on another front of the ‘Global War on Terror” is revealing even more shortcomings in the FBI’s reliance on FISA. With military victory in Afghanistan al Qaeda lost its state-sponsored base of operations. As a result an organized structure of command and control can’t be maintained, and the group has splintered into smaller, often nameless, less organized groups who share a militant Islamic fundamentalist ideology but whose connections back to al Qaeda, or any other named terrorist group, are murky at best. (I have heard terrorism experts suggest this evolution demonstrates an organizational genius behind al Qaeda, but it is really just a natural outgrowth of the need to operate clandestinely in a more hostile environment. Domestic terrorist groups, deprived of a safe haven in which to organize from the onset, have used leaderless resistance strategies, autonomous cell operations, and lone wolf techniques for decades. Nobody ever called them geniuses.) FISA warrants are becoming more difficult to get as a result of this evolution because the Act requires evidence that the target is an agent of a specific terrorist “group,” and the “group” is becoming harder to identify.

The Department of Justice is aware of this issue, and has advanced a solution in draft legislation to enhance the Patriot Act. Under the draft legislation, FISA’s definition of “foreign power” would be expanded to “include all persons, regardless of whether they are affiliated with an international terrorist group, who engage in international terrorism.” All persons? All persons could be considered a foreign power? The absurdity of this language just reinforces that terrorism is a square peg being shoved into FISA’s round hole. The operative part of this definition, of course, is “who engage in international terrorism.” But if I have evidence someone is engaged in international terrorism why wouldn’t I just get a criminal Title III warrant?


People need to stop playing politics and deal with reality. Can you name one innocent individual who has had their civil liberties infringed on and suffered any harm because of the NSA program ? There is the Ronald Reagan quote that is relevant, "Trust, but verify." Verify refers to after action, if it referred to before, than you wouldn't have trust would you ? The same applies to intelligence, you don't always have the certainty necessary to verify. Sometimes you have to act on reasonable hunches or possibilities borne of experience. Intelligence does not work effectively if it is chained by criminal warrant standards. And when the cost of being wrong and missing one clue could be the loss of hundreds of lives, or more, makes the risk assessment calculation a pretty simple formula.
2.10.2006 4:58am
Noah Klein (mail):
KMAJ,

You must remember why FISA was put in place. You say that we should follow Reagan's maxim "Trust, but verify." Do you think that Reagan would have given his trust to Gorbachev, if Gorbachev lied to him. I don't. The Nixon, LBJ and Kennedy administration abused this power of warrantless foreign intelligence surveillance on domestic targets. Thus we need system to prevent further abuses.

I cannot say that the NSA program has abused anybody, because I, like the rest of the country, do not who was surveiled. I doubt that more than 50 people even know how people were surveiled, let alone who was surveiled. But we do know of at least questionable activities if not outright abuses. Such as the sneak and peek warrant on the gentleman in Washington or the DOD investigate Quakers and other peace groups. It would not be a leap to think that this program was used improperly.

I know that you will respond that the Intel committees can and should provide the oversight necessary to prevent abuses, but remember that the administration did not inform the full committees and thus they were not able to provide oversight on this program. Furthermore, the more flagrant abuses of the 1960's and 70's also occurred while the committees were fully functioning and even when an opposition party controlled them. They did provide the oversight necessary.

We need the FISC to approve each surveillance on U.S persons in the U.S. to ensure that people's civil liberties are being protected. Should this hamper the executive in obtaining foreign intelligence? NO. If a direct line from the FBI agent or the NSA official is needed to the AG, I think it should be there. If a longer time is needed to do the paperwork, I think the time should be extended. If the paperwork is too cumbersome, it should be be cut down. But this court has existed for years and it has helped protect civil liberties, while allowing the government to obtain the necessary intelligence. We cannot give the executive carte blanche. We tried that before and it failed.

Yet our last two posts in the end are policy issues and not legal issues. FISA is still the law of the land and until it is repealed or amended it should still be followed.

Noah
2.10.2006 7:31am
Noah Klein (mail):
That should be "I cannot say that the NSA program has abused anybody, because I, like the rest of the country, do not know who was surveiled."

and "They did not provide the oversight necessary."
2.10.2006 7:35am
Medis:
KMAJ,

You write: "UCMJ and FISA are different statutes performing different functions. UCMJ is a code of conduct that would fall under regulations and is not a direct intrusion of the operation and prosecution of the war. FISA, on the other hand, directly intrudes and inserts itself into the operation and prosecution. There is a vast difference, the UCMJ does not create a process or body/court that presents an obstruction to military actions, FISA creates just such an obstruction the impedes timeliness, effectiveness and efficiency."

But that is just a flat out wrong description of the UCMJ. Take, for example, a relatively noncontroversial example, UCMJ Article 106a (Espionage). It defines in detail the offense of espionage, and then provides detailed procedures for the trial of espionage cases. It even provides particular procedures for sentencing a person convicted of espionage to death.

And, of course, identifying and executing spies has long been a traditional aspect of war. But here comes the UCMJ, directly intruding and inserting itself into the operation and prosecution of war by creating a process that presents an obstruction to this traditional military action.

This, of course, is Senator Graham's point. Suppose Captain X orders Lieutenant Y to execute Private Z for espionage. Lieutenant Y knows the UCMJ, and he tells Captain X that he can't do that with first conducting a court martial pursuant to Article 106a. Captain X says:

"Sure you can. Didn't you see the Attorney General on TV? Haven't you been reading that guy KMAJ on the Volokh Conspiracy? Executing spies is a fundamental incident of war, and any statute that interferes with a military action is unconstitutional. It would be really inconvenient to give Private Z a court martial, complete with an opportunity to put on a defense. So, shoot Private Z! And that's an order!"

What is Lieutenant Y supposed to do in this circumstance? Graham put essentially this same hypothetical (using, instead, torture as an example) to Gonzales--and Gonzales couldn't or wouldn't answer, saying he would need to analyze the issue some more. If the Attorney General of the United States can't give an answer without detailed analysis, then how the heck is poor Lieutenant Y supposed to know what to do on the spot?

But the bad news for Lieutenant Y is that if he makes a wrong decision, either way, he is subject to prosecution himself.

And that is precisely the position, KMAJ, you are going to put members of the armed forces into with your argument. Because although you claim offhand that the UCMJ does not "intrude on the operation and prosecution of war", of course it does--in many, many ways. And so everytime a commanding officer says "yes", but the UCMJ says "no", your rule makes it impossible for the person receiving the order to know what to do.

And that makes for a pretty darn bad system of military law.

I'll end with a provision from the Revolutionary War Articles of War. I've posted it many times before, but I urge you to actually read it, and think about what the Founders thought about military law. Seriously--think about it.

"Whenever any officer or soldier shall be accused of a capital crime, or of having used violence, or committed any offense against the persons or property of the good people of any of the United American States, such as is punishable by the known laws of the land, the commanding officer and officers of every regiment, troop, or party, to which the person or persons so accused shall belong, are hereby required, upon application duly made by or in behalf of the party or parties injured, to use his utmost endeavors to deliver over such accused person or persons to the civil magistrate; and likewise to be aiding and assisting to the officers of justice in apprehending and securing the person or persons so accused, in order to bring them to a trial. If any commanding officer or officers shall wilfully neglect or shall refuse, upon the application aforesaid, to deliver over such accused person or persons to the civil magistrates, or to be aiding and assisting to the officers of justice in apprehending such person or persons, the officer or officers so offending shall be cashiered."
2.10.2006 8:03am
Neal Lang (mail):
The Tory Act

Published by Order of the Continental Congress,
Philadelphia, Jan. 2, 1776.(1)


Whereas it has been represented to this Congress, that divers honest and well meaning, but uninformed people in these colonies, have by the art and address of ministerial agents, been deceived and drawn into erroneous opinions, respecting the American cause, and the probable issue of the present contest.

Resolved, That it be recommended to the several Committees, and other friends to American liberty in the said colonies, to treat all such persons with kindness and attention, to consider them as the inhabitants of a country determined to be free, and to view their errors as proceeding rather from want of information, than want of virtue or public spirit, to explain to them the origin, nature and extent of the present controversy, to acquaint them with the fate of the numerous petitions presented to his Majesty, as well by Assemblies as by Congresses for reconciliation and redress of grievances, and that the last from this Congress, humbly requesting the single favor of being heard, like all the others has proved unsuccessful; to unfold to them the various arts of administration to ensnare and enslave us, and the manner in which we have been cruelly driven to defend by arms those very rights, liberties and estates which we and our forefathers had so long enjoyed unmolested in the reigns of his present Majesty's predecessors. And it is hereby recommended to all Conventions and Assemblies in these colonies liberally to distribute among the people the Proceedings of this and the former Congress, the late speeches of the great patriots in both houses of parliament relative to American grievances, and such other pamphlets and papers as tend to elucidate the merits of the American cause. The Congress being fully persuaded that the more our right to the enjoyment of our ancient liberties and privileges is examined, the more just and necessary our present opposition to ministerial tyranny will appear.

And with respect to all such unworthy Americans, as regardless of their duty to their creator, their country, and their posterity, have taken part with our oppressors, and influenced by the hope or possession of ignominious rewards, strive to recommend themselves to the bounty of administration by misrepresenting and traducing the conduct and principles of the friends of American liberty, and opposing every measure formed for its preservation and security.

Resolved, That it be recommended to the different Assemblies, Conventions, and Committees or Councils of Safety in the United Colonies, by the most speedy and effectual measures to frustrate the mischievous machinations, and restrain the wicked practices of these men. And it is the opinion of this Congress that they ought to be disarmed, and the more dangerous among them either kept in safe custody, or bound with sufficient sureties to their good behavior.

And in order that the said Assemblies, Conventions, Committees or Councils of Safety may be enabled with greater ease and facility to carry this Resolution into execution, Resolved, That they be authorized to call to their aid whatever Continental troops stationed in or near their respective colonies, may be conveniently spared from their more immediate duty; and the commanding officers of such troops are hereby directed to afford the said Assemblies, Conventions, Committees or Councils of Safety, all such assistance in executing this resolution as they may require, and which, consistent with the good of the service, may be supplied.

Resolved, That all detachments of Continental troops which may be ordered on the business in the aforegoing resolution mentioned, be, while so employed, under the direction and control of the Assemblies Conventions, Committees, or Councils of Safety aforesaid.

Resolved, That it be recommended to all the United Colonies to aid each other (on request from their respective Assemblies, Conventions, Committees or Councils of Safety, and County Committees) on every emergency, and to cultivate, cherish and increase the present happy and necessary union, by a continual interchange of mutual good offices.

And whereas the execrable barbarity with which this unhappy war has been conducted on the part of our enemies, such as burning our defenseless towns and villages, exposing their inhabitants, without regard to sex or age, to all the miseries which loss of property, the rigor of the season, and inhuman devastation can inflict, exciting domestic insurrections and murders, bribing the Savages to desolate our frontiers, and casting such of us, as the fortune of war has put into their power, into gaols there to languish in irons and want; compelling the inhabitants of Boston, in violation of the treaty, to remain confined within the town, exposed to the insolence of the soldiery, and other enormities, as the mention of which decency and humanity will forever blush, may justly provoke the inhabitants of these colonies to retaliation.

Resolved, That it be recommended to them to continue mindful that humanity ought to distinguish the brave, that cruelty should find no admission among a free people, and to take care that no page in the annals of America be stained by a recital of any action which justice or christianity may condemn, and to rest assured that whenever retaliation may be necessary or tend to their security, this Congress will undertake the disagreeable task.

Resolved, That the Assemblies, Conventions, or Committees or Councils of safety be requested forthwith to transmit to this Congress copies of all the petitions, memorials, and remonstrances which have been by their respective Colonies presented to the Throne, or either house of Parliament, since the year 1762, and that they also inform this Congress whether any and what answers were given to them.

Extracts from the minutes, CHARLES THOMPSON, Secretary.
2.10.2006 11:10am
Neal Lang (mail):
On the topic of impeachment, but not on this topic, Scotter Libby has admitted that Cheney authorized him to leak the name of Valerie Plame. And so we have a whole new path to impeachment. I did not think Libby would turn on his boss, but it looks like he did. I got this from MSNBC's Harball, which got this info from the National Journal.

Wrong again! No partisanship here!
2.10.2006 11:11am
Just an Observer:
Since this thread in nominally about Congressional Reaction to NSA Briefing, I add this update from today's Washington Post:

In a related area yesterday, several Democrats said the administration must do more to explain and justify the domestic surveillance program conducted by the National Security Agency.

"If they came with the idea that this is going to stop an investigation on the part of the Senate intelligence committee, they were wrong," committee Vice Chairman John D. Rockefeller IV (D-W.Va.) told reporters after a closed briefing by two top administration officials. "There were certain kinds of questions which could easily have been answered but weren't. . . . Where we really wanted hard information that was important to us, that gave us the size and the scope and the reach and the depth" of the program," he said, "they were not forthcoming."
2.10.2006 11:29am
Neal Lang (mail):
First, the administration did not brief the entire intelligence committees. They instread briefed the "Gang of Eight" who were allowed to speak about this issue with their colleagues or staff. This is why there was not oversight. We dealt with this before.

Protection of Intelligence Sources and Methods

The executive branch may argue that it limited its briefing of the NSA program to the Gang of Eight, and further instructed those Members not to share information about the program with other members of the intelligence committees, in order to protect intelligence sources and methods. Limiting the sharing of intelligence information so as to protect intelligence sources and methods is an accepted Intelligence Community practice. Such practice is based upon the theory that as more individuals are informed about certain intelligence information, the greater is the risk that sources and methods will be disclosed, inadvertently or otherwise. Although limiting its briefing of the NSA program to the Gang of Eight may or may not be inconsistent with the legal requirement that the intelligence committees be kept fully and currently informed of intelligence activities, other than those involving covert action, the executive branch could assert that it also is legally required to pay “... due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive maters...”

Congress has recognized such a necessity and stated its intent that the executive branch, in extremely rare circumstances, may need “...to preserve essential secrecy..” and thus may decide “...not to impart certain sensitive aspects of operations or collection programs to the oversight committees in order to protect extremely sensitive intelligence sources and methods...” In acknowledging this narrow need, however, Congress did not explicitly recognize, in statute or report language, the executive branch’s right to withhold from the intelligence committees information about the existence of the intelligence operations and collection programs, but rather only its authority to hold back information pertaining to certain sensitive aspects of such operations and programs. [emphasis added]

The executive branch may assert that the mere discussion of the NSA program generally could expose certain intelligence sources and methods to disclosure, thus making it necessary to limit the number of those knowledgeable of the program in order to reduce the risk of such disclosure occurring.


Notification Precedent

The executive branch could point out that despite the current statutory obligation of keeping the intelligence committees fully and currently informed of intelligence activities, other than those involving covert action, the leadership of these two committees over time have accepted executive branch practice of limiting notification of intelligence activities in some cases to either the Gang of Eight, or to the chairmen and ranking members of the intelligence committees.
2.10.2006 12:06pm
Bruce Hayden (mail) (www):
I think that it was Noah (but maybe Medis) who suggested that Congress implemented the 72 hour Emergency Orders provision to FISA for this sort of thing. But AG Gonzales has complained that this provision is extremely burdonsome still, to the point that it is all but unusable, given the standards required and the the time allowed to meet those standards. In particular, when time is of the essence, when our guys are rolling up a terrorist network, grabbing cell phones and feeding their call histories to NSA, minutes are critical, since phones are dumped as soon as it is known to the terrorists that those other terrorists have been compromised.

Someone above pointed out something that reiterates my point, that FISA is obsolute. Back when it was enacted, we were engaged in a Cold War with the Soviet Union and the PRC. Their agents in this country were finite and not numerous enough that the CIA, et al. couldn't go through all the paper work to surveil them. Back then, my memory is that they often took years to track down foreign agents. But also, the harm that they might cause was not imminent, but rather long term, so spending months getting warrants was not really that much of a limitation on intelligence gathering.

Now, the foe is different, much more nimble, and much harder to identify. And, I probably don't need to reiterate the technology changes that moved surveilance of most international calls into this country from 50 USC 1801(f)(1) to (f)(2). So, the FISA court is swamped by paperwork that might have been appropriate in the 1970s, but is a major impediment today - not because the Administration wants to ignore it, but rather, because it is impossible for them to fully conform to the wording of FISA and do even a portion of what needs to be done.

The suggestion is made by many, including some here, that the Administration just needs to conform to FISA. They can't, as the Act is currently structured, without seriously interfering with this, and presumably other NSA, et al. intelligence gathering operations. And those, like the Democratic Congressman whose thoughts on the matter started this thread, who actually are given access to the details, tend to agree that it is valuable.

I agree with a poster above, that what is needed, instead of the FISC, is Congressional oversight, limited of course to a small enough number of such that their leaks can be investigated and plugged. This (without the classified information requirements) was done to some extent with the PATRIOT Act, with quarterly reports going to Congress, etc., and it seems to have worked.
2.10.2006 12:13pm
Neal Lang (mail):
Your insinuation of partisanship has been debunked here over and over and over and over again. There are a number of Congressional Republicans that have very serious concerns about what the administration is doing.

If it walks like a duck, swims like a duck, flies like a duck, sounds like a duck, acts like a duck and looks like a duck - it must be a duck!
2.10.2006 12:18pm
Medis:
Bruce,

You say: "But AG Gonzales has complained that this provision is extremely burdonsome still, to the point that it is all but unusable, given the standards required and the the time allowed to meet those standards."

But that is precisely what has a lot of us puzzled--Gonzales also said that they actually ARE meeting the standard before beginning surveillance under "this program", because he says they have the necessary probable cause.

So apparently the standard isn't the problem--if you believe Gonzales.
2.10.2006 12:26pm
Jack John (mail):

Take, for example, a relatively noncontroversial example, UCMJ Article 106a (Espionage). It defines in detail the offense of espionage, and then provides detailed procedures for the trial of espionage cases. It even provides particular procedures for sentencing a person convicted of espionage to death.


This only serves to reinforce KMAJ's point, which is that UMCJ sets standards that apply after the fact. In other words, the Executive can act and may be punished for it at a later date. FISA, on the other hand, gets in the way of the Executive taking action right now. It actually obstructs Executive action, which may cost us lives, or so the argument goes. I hope this post wasn't a nasty attack that draws the ire of Orin Kerr.
2.10.2006 12:29pm
Bruce Hayden (mail) (www):
Noah said:
We need the FISC to approve each surveillance on U.S persons in the U.S. to ensure that people's civil liberties are being protected. Should this hamper the executive in obtaining foreign intelligence? NO. If a direct line from the FBI agent or the NSA official is needed to the AG, I think it should be there. If a longer time is needed to do the paperwork, I think the time should be extended. If the paperwork is too cumbersome, it should be be cut down. But this court has existed for years and it has helped protect civil liberties, while allowing the government to obtain the necessary intelligence. We cannot give the executive carte blanche. We tried that before and it failed.
I think I have answered this to some extent in my previous post. But I think you are asking for much, too much, in a time of war, esp. when the war is so fast moving, and our intelligence target so elusive and hard to tie to known terrorist organizations.

I might be happier with your suggestion if you had also suggested eliminating from this requirement any communications between someone in the U.S. and a targeted individual outside of our country. As I keep pointing out, technology moved most international communications from 50 USC 1801(f)(1) to (f)(2), and one thing that I see really hampering the NSA in conforming with FISA is just that, FISA would now apply to that foreign terrorist who snuck into our country illegally and is calling home to OBL in Afganistan or Pakistan to let him know that he is ready to start work. This was not an issue when international communications could, and were, tapped outside the U.S. Back then, this call wouldn't have been subject to FISA for several reasons, including that the targeted person wasn't in the U.S., and the person in the U.S. wasn't there legally (and, hence, a U.S. Person). Now all that is relevant is that one party, regardless of his legality, is in the U.S.

As to your suggestion that the FISC has existed for years, I will agree. However, until 9/11, the requirements on that court were not all that great. Now, by all indications, it is absolutely swamped, and the guys putting together applications for FISA warrants are spending huge amounts of time doing it. In short, the process hasn't scaled up well at all. A system that worked well for dozens, or maybe a hundred or so, orders a year, is now facing thousands. And that is just for those that the Administration procures. It is possible that your suggestion would move that thousands a year to tens of thousands.

As to the suggestion that a phone line be run to wherever the AG is at any time, so he can be woken up in the middle of the night, that too is not really workable, given all the documentation that even Emergency Orders require. I don't think that he could legally issue such based on a mere phone call - rather I suspect that he really needs to see all that paperwork.
2.10.2006 12:33pm
Neal Lang (mail):
Bush v. Gore did not involve that - it was a fed vs. state fight. Chief Justice Rehnquist put it pretty well - that it was a really a question of whether the U.S. or the Florida Supreme Court decided who would be President. And Florida's chief justice told his colleagues that their ruling as worded would be reversed.

Actually, the issue in Bush v. Gore was both a Federal Constitutional and "separation of powers" one. The question before the Supremes was could the Supreme Court of Florida disenfranchise the millions of Floridian voters who took part in the 2000 Presidential Election by insisting on arbitrary marathone recounts, or could the Legislature of Florida mercifully put and end to the nonsense and insure that the votes of Florida were counted in the 2000 Election for President of the United States, as mandated by the Constitution of the United States of America, to wit:
Article. II. [Section 1.]

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The State of Florida Legislature had "directed", but the Supreme Court of Florida refused to listen, so the SCOTUS made them listen.
2.10.2006 12:38pm
Bruce Hayden (mail) (www):
Medis,

You are right. I think that there are two issues involved, probable cause and practical feasibility of conforming to the warrant in as timely a manner as is required. And, yes, my comment was to the later, whereas yours may be to the former.

I have no doubt that the debate is being framed as the later by the Administration because it is much easier to justify. A much better sound bite. My personal guess is that if the debate were about probable cause, it would open up the problem that the Administration is probably using a much lower standard than we see in our courts for regular warrants. Some have suggested that FISA sets a lower standard. I am not an expert on criminal warrants, so refuse to comment thereupon.

And this would open up the problem of what definition of probable cause should apply, and that might end up disclosing important operational details to the NSA program. (which is again one reason that I like the idea of Congressional oversight more than requring FISA warrants). After all, if our enemy were knowledgable about the level of probable cause necessary for our intelligence services to surveil people, then they would be in a position of staying below that level of scrutiny.
2.10.2006 12:45pm
Neal Lang (mail):
Many members of Congress have said that their legislation did not authorize the president to violate FISA.

If Congress says that their legislation did not even consider the NSA program,

Then it should a simple matter to pass a "Sense of the Congress" resolution forcing the President to "cease and desist" the NSA Terrorist Surveillance Program and go on record if another 9/11-like occurs as a result, they stand ready to accept the blame.
2.10.2006 12:45pm
Medis:
Bruce,

You say: "As to the suggestion that a phone line be run to wherever the AG is at any time, so he can be woken up in the middle of the night, that too is not really workable, given all the documentation that even Emergency Orders require. I don't think that he could legally issue such based on a mere phone call - rather I suspect that he really needs to see all that paperwork."

Why do you "suspect" that? FISA just requires that:

"the Attorney General reasonably determines that—
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists."

I don't see why making that determination on the basis of a phone call would be unreasonable. Indeed, as I asked to A.S. when he offered the same proposition, what would be the point of giving them 72 hours to file the paperwork, if all the paperwork had to be done before then?

So, it seems to me you are reading an unreasonable requirement into the statute just so that you can conclude that the statute is unreasonable. But as far as I can tell, your proposed requirement isn't in the statute, and indeed makes no sense.
2.10.2006 12:51pm
Neal Lang (mail):
Rove is one fartherest people I can think of from becoming president. Is not the line of succession or anything else nor do I think he would want to be the frontman of the administration. He does his best work behind the scenes. Having said that, IF impeachment were to happen I doubt that Rove would be appointed to the VP spot and then rise to the presidency.

Neither was Gerald Ford until Nixon Appointed him VP. With Cheney's bad "pump" making a Rove substitute wouldn't be a problem. You have your fantasies and I have mine!
2.10.2006 12:53pm
Medis:
Bruce,

On standards: again, recently Gonzales has discussed this in some detail, and he has suggest that it is the same standard as FISA would require: a reasonable basis to believe that the communication involves an agent of a foreign power.

Of course, he may just be BS'ing. But another possibility is that he is right about "this program"--the confirmed one--but other programs may not meet this standard. In turn, they may be using information from these other programs to establish their probable cause under "this program"--and that, as we now know, the FISC was not allowing.
2.10.2006 12:56pm
Neal Lang (mail):
The law states that it is the exclusive means to surveil U.S persons in the U.S. (and the DOJ and AG have admitted that the NSA program is covered under FISA).

If I am not mistaken, FISA also "states that it is the exclusive means to" execute a search warrant on "U.S persons in the U.S" for the purpose of gathering "foreign intelligence", as well. Yet, "Slick Willie" issued an "Executive Order" to circumvent FISA - and he didn't even have a "AUMF". Go figure!
2.10.2006 1:06pm
Jack John (mail):

In turn, they may be using information from these other programs to establish their probable cause under "this program"--and that, as we now know, the FISC was not allowing.


Ok, I agree with Medis on this point. But the ad hoc FISC is using sounds an awful lot like "Fruit of the Poisonous Tree" doctrine, which applies in the Fourth Amendment context. This is troubling because a warrant is not constitutionally necessary. The program does not violate the Fourth Amendment: it fits within an exception to the Fourth Amendment ("hot pursuit"). See General Hayden's remarks on Fox News Sunday on Superbowl Sunday.


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 Medis' brand of argument:

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 of Congress, not a grant of power. The First Amendment makes this clear: "Congress shall make no law ..."

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.

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? And if the Foruth Amendment does not apply, by what authority is the Court applying Fourth Amendment evidentiary doctrine? This seems clearly erroneous and highly improper.

Note: This is not a nasty attack meant to draw the ire of Orin Kerr.
2.10.2006 1:09pm
Bruce Hayden (mail) (www):
Medis

I concur in part and dissent in part. Let's work backwards, and assume that someone finally gets arrested and tried based on an Emergency FISA warrant. I would think that defense attorneys would most likely attack the validity of the Emergency Order, and, as one part of that, that the AG was truly informed about the emergency situation and the factual basis to approve such a warrant. So, how is the DoJ going to show that? Maybe recording all such conversations, but more likely, having the paper trail that lawyers so love.

Also, couldn't an agressive defense attorney bootstrap all the provisions of 1804(a) into the 1805(f)(2) you cited, complete with minimation procedures, etc.? If so, that would be a lot to get right and document over the phone.

Finally, 1805(f) seems to imply that this duty isn't delegatable, for a couple of reasons. First, later in the section, a mention is made of the AG or his delegate. But only the AG is mentioned as being able to approve the Emergency Order. And secondly, 1804(e) seems to imply that he can't delegate at least the approval of applications. (some one pointed me to rules that designate the NSA director for some of this, and I am not sure if this would override that).
2.10.2006 1:21pm
Bruce Hayden (mail) (www):
Orin,

Thanks for not banning John Jake. Yes, he may have stepped over the line a couple of times earlier in this thread, but seems sufficiently contrite. I find his input helpful as a counter to points made by, in particular, Noah and Medis. Having both sides well argued is IMHO beneficial to this forum and this debate.
2.10.2006 1:25pm
Bruce Hayden (mail) (www):
Sorry all, that was Jack John, not John Jake. Most appologies, of course, to Jack himself.
2.10.2006 1:27pm
Neal Lang (mail):
NO. Its historically been the Judiciary's job to check on the searches conducted by the executive in this country.

But not "military intelligence" gathering. During the Civil War the Union tapped the Telegraph lines throughout the Confederacy, and never went to the FISC for a warrant one time. The 4th Amendment mentions "searches and seizures" but not "surveillance"; "intelligence gathering", no "conversations". The Supremes Amended the 4th Amendment to include all those other things, without going through the bother of the Article V Constitutional mandate on Amending the Constitution. Interestingly, in Olmstead (1929), the Supremes initially stated that the 4th Amendment didn't apply to "telephone commnications" or "electronic surveillance" - a precedent that had lasted longer than Roe before they "changed their minds", in Katz (1967). Go figure!
2.10.2006 1:30pm
Neal Lang (mail):
The Intel committees since their formation in the 1940's have handled the most sensitive information of the government. I have never heard of any president prior to this one at this time say that those two committees are leaking machines. If they were, we would know a whole lot of things that are currently not publicly known. You lack faith in the Legislature is very disturbing. Finally on this point, the leak of the NSA program came from the executive branch and from intel officials who were upset with the program.

My but you are naive! If the Intelligence Committees of Congress are such "leak proof", why is there a "Gang of Eight" in the first place? If what you say is true, they wouldn't need "Gang of Eight" at all.
I trust Gen. Michael Hayden to agressively pursue any means to achieve the intelligence needed to defeat terrorists. I do not trust him, as I do not trust any executive official in any administration, to stop before innocent people's civil liberties are violated. How many historical examples of the executive violating the rights of the people do you need before you realize that a check on the executive is necessary?

Why? Exactly what makes you think Gen. Michael Hayden would violate anyone's "civil liberties", anymore than Abe Fortes or Alcee Hastings ("the best judge money can buy") would? Personally, I trust the military more than I trust any lawyer! As I recall, their were as many Judges and lawyers "in the dock" at Nuremberg as their were military officers:
Nazi lawyers and judges did not escape scrutiny. In the "Justice Case" that opened on January 4,1947, fourteen leading official of the judicial system of the Reich were accused of crimes against humanity by distorting the legal process to justify and support Hitler's programs of persecution and extermination. The trial judges came from benches in Ohio, Oregon and Texas. They found that "the dagger of the assassin was concealed beneath the robe of the jurist." The proceedings, which lasted less than a year, reinforced principles laid down by the IMT and became the subject of a popular Hollywood film "Judgment at Nuremberg".

I cannot understand how anyone could trust a lawyer's word over that of a soldier.
2.10.2006 1:57pm
Neal Lang (mail):
We did not have the information before December 2005, which is why in December 2005 both Democrats and Republicans (Specter immediately called for hearings) began to investigate this. You have to be joking that this partisan. It is a battle between two branches of government, yes, but between two parties.

Exactly what information do you have in December 2005? Was it the same information the "Gang of Eight" received on the Program? Exactly what makes you trust a "rouge" NSA who violated his oath and the law to leak "false" information regarding the "gathering of intelligence" of "foreign enemy agents" operating in our country. Specter is an ungrateful idiot. If George W. Bush didn't back him 2004 he would have never gotten the Republican nomination for Senator. He pays Bush back by stabbing him in the back. I suppose the "old saw" is right - "no good deed goes unpunished". Seeing how the matter involves "intelligence gathering", I believe Specter can is grandstanding by holding hearings in his committee in any event.
2.10.2006 2:11pm
KMAJ (mail):
Medis,

Jack John cogently and concisely counters your rebuttal of my point on the UCMJ vs FISA:

Medis: Take, for example, a relatively noncontroversial example, UCMJ Article 106a (Espionage). It defines in detail the offense of espionage, and then provides detailed procedures for the trial of espionage cases. It even provides particular procedures for sentencing a person convicted of espionage to death.
--
Jack John: This only serves to reinforce KMAJ's point, which is that UMCJ sets standards that apply after the fact. In other words, the Executive can act and may be punished for it at a later date. FISA, on the other hand, gets in the way of the Executive taking action right now. It actually obstructs Executive action, which may cost us lives, or so the argument goes.


Note, UCMJ is an after the fact application, FISA is not. That is a very clear and intrusive distinction. If a soldier refuses to follow or obeys an order, everything does not stop and go before a tribunal to determine if said action will continue. I do not think anyone would support such a system during the prosecution of a war, it would be chaos and it would cost lives.
2.10.2006 2:15pm
Neal Lang (mail):
I always find it amusing when people argue that they don't want the courts doing something as radical as interpreting the law.

Exactly where in the Constitution is the Judicial Branch delegated the "authority" of "interpreting the law". Just like "surveillance" and "communications", the term "interpreting" does not appear anywhere in my copy of the Constitution of the United States.
2.10.2006 2:19pm
KMAJ (mail):
Trusting the legislative branch, one only needs to look at the Leahy resignation from the Intelligence Committee in the 90s or Rockefeller's revelation to the Syrians, one would not be surprised if one of Risen's 12 sources was from the legislative branch.
2.10.2006 2:20pm
Apodaca:
Tom Holsinger once again makes the following claim:
FISA has a clause which effectively exempts surveillance of foreign communications from its definition of electronic surveillance ("expectation of privacy"). I was there. I talked to one of the Congressmen who drafted FISA.
Tom, nobody cares about your fundamentally unverifiable claim to have personal acquaintance with a former Congressman. What matters here is your persistent dishonesty in claiming that FISA "exempts surveillance of foreign communications" in a manner meant to imply that domestic-to-foreign comms are thus universally outside FISA. They are not, and you well know it because I and others have drawn your attention to section 1801(f)(2):
the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States...
No amount of handwaving on your part changes what FISA says (including your oft-repeated meme that it's trivial to circumvent (f)(2) by just intercepting outside the US).

Repeat after me, Tom: FISA applies to wireline interception that occurs in the US regardless of whether there is a "reasonable expectation of privacy" (a phrase conspicuously omitted from (f)(2)).

And as for this prattle:

Surveillance of foreign communications is also an inherent Presidential power, and has been for several hundred years (the mail initially, then telegrams, then phone calls, etc.).
Tell us, Tom: when did the Supreme Court first hold that telephone calls are protected under the Fourth Amendment? Right -- 1967. So spare me the foolish spin about 19th-century surveillance. It's irrelevant.
2.10.2006 2:38pm
JunkYardLawDog (mail):
It seems to me others started the name calling of Jack John first, and maybe I missed Jack John's offending post that got Orin so riled up or maybe it was deleted. However, I think in the circumstances blaming all the name calling on Jack John alone would certainly be inappropriate, as was warning ONLY Jack John.

Calls from the KOS crowd like minnie to the contrary notwithstanding. They hate hearing ideas to which they do not agree, and therefore seek to censor through whatever means might be available the purveyors of unapproved thinking. Its like in the name of diversity all diversity of thought and policy must be suppressed.

Says the "Dog"
2.10.2006 3:20pm
Neal Lang (mail):
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 of Congress, not a grant of power. The First Amendment makes this clear: "Congress shall make no law ..."

As does James Madison when he initially proposed the Bill of Rights to Congress and suggested they be placed in Article I Section 9.
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? And if the Foruth Amendment does not apply, by what authority is the Court applying Fourth Amendment evidentiary doctrine? This seems clearly erroneous and highly improper.

A better question might be - how can Congress (or the Courts for that matter) amend the Constitution of United States of America without following the prescribed methidology of Artical V.
2.10.2006 3:21pm
Neal Lang (mail):
Tell us, Tom: when did the Supreme Court first hold that telephone calls are protected under the Fourth Amendment? Right -- 1967. So spare me the foolish spin about 19th-century surveillance. It's irrelevant.

A more important matter is when did the Supreme Court first hold that telephone calls are NOT protected under the Fourth Amendment? Right -- 1929. As for 19th Century surveillance, the telephone was around for over 50 years before Olmstead. Of course, Olmstead had reach the mystical level of "Super Precedent" before it was overturned in Katz, as it was around for 6 years longer than Roe when it was tossed on the "dust bin" of former long standing judicial precedents. So spare me the "irrelevant" clap-trap!
2.10.2006 3:28pm
Neal Lang (mail):
Repeat after me, Tom: FISA applies to wireline interception that occurs in the US regardless of whether there is a "reasonable expectation of privacy" (a phrase conspicuously omitted from (f)(2)).

Hmmm! "Wireline interception" - but what about "cellphone" intercepts? So Congress can over-rule the Supremes' "interpretation" of the 4th AMendment by mere legislative fiat. Wasn't the "reasonable expectation of privacy" the "end-all and be-all" of the Katz decision? BTW, where exactly do we find "privacy" in the Constitution?
2.10.2006 3:36pm
Noah Klein (mail):
KMAJ:

I am very tired of this baseless bashing of Rockfeller and the legislative oversight function of the intel committees (something I might point out was suggested by those who think FISA is unconstitutional as a substitute for FISA). Risen has said who his sources were and one of those sources has come out in public. Risen said in his article and in several interviews afterwards that his sources were executive officials acquainted with the program. If it was Rockfeller, why did it take so long to come out. He has been vice-chair since 2003, when we know he wrote a letter objecting to the program. If he was so inclined to break his trust, why didn't he do it then?

Also for KMAJ and Neal and others, I am not so naive to think that legislative branch is the appropriate forum to conduct intelligence, but it is the appropriate forum for oversight. And to conduct oversight, you need information. I don't doubt there have been leaks from intel committees, but there have also been many leaks from the executive. Our government is bad at keeping secrets. I both happy and sad at this reality. I am happy, because I know that if the government is doing something truly horrendous, we will learn of it in time. I am sad, because it makes it harder to conduct clandestine operations. But if think the true offender is the legislative branch, you are truly mistaken. Human nature demonstrates that if more than one person knows a secret, it is just that much more likely that the secret will get out. Most secrets in our government are known by more executive branch officials than those in the legislative branch. This is why we see when classified material gets out it is often sourced to executive officials. Stop maligning people without any basis please.

Noah
2.10.2006 3:39pm
Medis:
Bruce,

There are all sorts of situations where the admission of evidence depends on undocumented facts. For example, a police officer might claim to have observed something giving him probable cause for a search. He doesn't need to have written that down on paper in order for the evidence he discovers to be admitted.

So, again, I don't think you can imply a documentation rule into the FISA Emergency Order provision--which indeed would make no sense in light of the 72 hours window.

KMAJ,

I don't see how that distinction applies. Remember my hypo: Captain X orders Lieutenant Y to execute Private Z for espionage. The action in question--Lieutenant Y executing Private Z--has not in fact occurred yet, so this would indeed require Lieutenant Y to apply Article 106a prospectively, not retrospectively. In other words, the question is whether Congress can constitutionally require Lieutenant Y to follow the procedures in Article 106a BEFORE he executes Private Z.

As anside, maybe your confusion is that Article 106a also addresses Private Z's alleged espionage. But I'm not asking about what Article 106a says about what Private Z was allowed to do in the past. I'm asking about what Article 106a says about what Lieutenant Y can do in the present--namely, can he execute Private Z without following the procedures in Article 106a?

So, seriously, what would you tell Lieutenant Y? He knows Article 106a mandates certain procedures BEFORE Private Z can be executed for espionage. But Captain X is telling him that because Article 106a is interfering with a very traditional military action--executing spies--it is unconstitutional. And, Captain X cites Gonzales's testimony and YOUR posts here. What should Lieutenant Y do, and how does he know that based on what YOU are saying?
2.10.2006 3:43pm
Apodaca:
Neal Lang muses discursively:
A more important matter is when did the Supreme Court first hold that telephone calls are NOT protected under the Fourth Amendment? Right -- 1929. As for 19th Century surveillance, the telephone was around for over 50 years before Olmstead. Of course, Olmstead had reach [sic] the mystical level of "Super Precedent" before it was overturned in Katz, as it was around for 6 years longer than Roe when it was tossed on the "dust bin" of former long standing judicial precedents.
Irrelevant, dear boy. We're talking about the state of the law today.

By the way, can you give me a citation for "the mystical level of 'Super Precedent'"? A page number in Stern's Supreme Court Practice (8th ed.) will suffice.
2.10.2006 3:46pm
Neal Lang (mail):
also, would you mind summing up for me the list of people (without omitting response to the above) that the "leaker" is to go to in lieu of the press, in order of progression?

If he is to be considered a "Whistleblower" and he works for US Intelligence Agency, the law say he can ONLY go to the agency's IG!
2.10.2006 3:59pm
Neal Lang (mail):
Irrelevant, dear boy. We're talking about the state of the law today.


Ah! But we talking a the Constitution of the United States, dear boy? Just how, pray tell, can we be a "government of laws", if our law is no more than a "moving target" being constantly reconfigured by 5 of 9 unelected black robed Platonic Guardians. If the 4th Amendment did not include telecoms in 1929, what exactly has changed, besides the "personalities" on the court, to warrant such a change. And why the hell did the Framers bother with putting Article V in the Constitution, if amending it requires a mere change of whim for 5 Justices.

By the way, can you give me a citation for "the mystical level of 'Super Precedent'"? A page number in Stern's Supreme Court Practice (8th ed.) will suffice.

I believ it was "Di Fi" in the Sam Alito Confirmation hearings!
2.10.2006 4:10pm
Noah Klein (mail):
Neal,

It was Specter in Robert's hearing. And it also did not apply to the fourth amendment. It is also super-duper precedent.

Noah
2.10.2006 4:13pm
KMAJ (mail):
Medis,

Your hypo is wrong. The soldier ordered to do something against UCMJ can refuse to follow orders. His commanding officer then has a choice to make, order someone else to do it or acknowledge the subordinate soldiers reference to the UCMJ. There is no on the spot tribunal. If he orders someone else to do it and he tries to discipline the one who refused an order, it will go to a tribunal 'after the fact'. And therein lies the flaw in your analogy. What your hypo does not use in your analogy is the possibility the subordinate might be interpreting the UCMJ wrongly. There is no time in the theater of war for deliberation. The same holds true in the high tech intelligence gathering theater of war. Once word is out that one source of the conversation is compromised, all contacts will probably change their avenues of communications. There is NO time for the FISA process in such a scenario, by the time FISA acts, the warrant will no longer be any good, because the item surveilled will have likely changed or be gone. Why go through the FISA process if that which you are apllying for a warrant for is no longer valid ? It is illogical and inefficient.
2.10.2006 11:37pm
KMAJ (mail):
Noah,

You may not like it, but unless Risen names names, his claims that they are 'senior officials' rings hollow. I stand by my statement that I would not be surprised if some of the leaks were from the legislative branch, have you so soon forgotten the democrat Senate Intelligence Committee memo ? Have you forgotten Rockefeller's slip of the tongue to the Syrians prior to the onset of the War in Iraq ? His writing a letter was strictly a CYA letter. He was free to discuss his concerns with any other democrat members of the intelligence committee. They could have asked for an audience with the president to address their concerns. Simple fact, they didn't. Stop making excuses and think.

Anonymous sources tell reporters how to refer to them. There is no guarantee that a senior official is not something totally different, in fact, it is quite likely they are totally different. Such designations are usually used to draw attention away from the source to protect their identity. You need to stop being so trusting with media, especially those for the NY Times who have shed any semblance of impartiality. But, far be it for me to try to abridge your freedom to believe what you want.
2.10.2006 11:48pm
Medis:
KMAJ,

It is not escaping my attention that you are refusing to answer my question--which, you may recall, is what the law requires Lieutenant Y to do in this situation.

And sure, if he refuses the order, he may have a chance to defend himself at a subsequent trial. Of course, his career could be over in any event, if he refused a lawful order.

Similarly, if he accepts the order, he may also be forced to defend himself at a subsequent trial. In either case, if he guesses wrong, he will be in a lot of trouble. And so far, you have been no help at all in explaining to him what he should do.

In fact, I note you have not simply said that he should follow the UCMJ. So, what happened to the UCMJ still being binding? If you really believe that, why not just say it?

And what happened to FISA being "unconstitutional"? Now you are talking about it being inefficient--is that the same thing as "unconstitutional"?

Incidentally, do you really need me to explain how Captain X could use all the same efficiency justifications for a summary execution of Private Z? Here is what Captain X would say:

"Have you read Article 106a, Lieutenant Y? The procedures before we can execute a spy under Article 106a are a real PITA.

First, we would have to convene a court martial. Then we would have to prove all the elements of espionage. Then Private Z would get a chance to put on a defense.

And even if they convicted him, he still might not be sentenced to death. Instead, we would have to prove one of the aggravating factors beyond a reasonable doubt, and he would get a chance to provide mitigating factors.

Jesus, Lieutenant Y, can't you see how that helps Al Qaeda? You think it doesn't help them recruit spies when they know we have to go through all this BS before we can execute them? And the whole time there is a chance he might dig an tunnel and escape, or communicate further secrets in code. And the bastard might even get off, or avoid execution because of this statutory burden of proof.

So, if we have to go through all this nonsense before executing him, and others like him, it might well help Al Qaeda recruit spies and get nuclear secrets, or find our vulnerabilities and pull off another 9/11. Is that what you want, Lieutenant Y? To help Al Qaeda blow up New York with a nuclear bomb? Are the rights of some Al Qaeda spy really more important than that?

Now, I say it again: I order you to shoot Private Z. And if you don't, your career is over."

All right, KMAJ: do you have an actual answer for Lieutenant Y or not? Or is your answer still, "Tough choice, Lieutenant. Good luck making your decision, and in your subsequent court martial."
2.11.2006 12:15am
KMAJ (mail):
Medis,

Your argumentative unrealistic hypo simply is asking for a non real world answer. Life presents choices, we cannot set up a system that prevents tough choices ocassionally occurring. Lt. Y has to make a choice and live with that choice. He does have one option you do not offer, he can follow an order with objection. And, as you refused to address, Lt. Y's interpretation of the UCMJ could be wrong, if instead of an extreme hypo, as you engage in, you present a more realistic hypo where there is actual conflict of interpretation. If I am in such a situation, and I strongly believe I am right, I will make that choice without hesitation and make my case at the appropriate time. You keep avoiding the after the fact versus before the fact difference. This game of hypos is merely a diversion.
2.11.2006 12:39am
Medis:
KMAJ,

I think it is very telling that you actually refuse to answer my question. Even if it is an "extreme hypo," you should be able to give a simple answer--if you actually believe that the UCMJ is constitutional. So, I take it you don't really believe that, even if you refuse to admit it.

Indeed, I note all pretense of constitutional analysis (not that you really had any to begin with) has been dropped. Instead, you are once again just arguing about policy. So, once again I would suggest that what you call "unconstitutional" is just shorthand for "policy I don't like".

Incidentally, of course this isn't really such an "extreme hypo" in the sense that a real issue like this could not arise under your theory of what is "unconstitutional". As I noted above, this is just a version of Senator Graham's hypo. He, of course, is specifically worried about torture, not summary executions--although I'm sure he would be worried about that too.

Anyway, as Senator Graham explained, the Bybee and Yoo torture memos (since withdrawn) actually used your arguments to reach the conclusion that conduct prohibited by the UCMJ could in fact be lawfully ordered. Whether you want to call that "torture" or not is semantics--the important point is just that the actions described in those memos would have violated several provisions of the UCMJ.

So, this is not just a legal exercise--it is also both a practical one and a political one. In practice, whether you want to grapple with this or not, telling people in the armed forces "I don't know--make your choice and we'll sort out later whether you can be prosecuted for a crime under the UCMJ" is not a valid option. And politically, people like Senator Graham--who know from personal experience about the need for coherent and reliable military laws--just aren't going to sign onto a principal that puts people in the armed forces into such a position.

And, of course, it flies in the face of the Constitution. But I have long since given up hope that you care about that.
2.11.2006 1:08am
Noah Klein (mail):
KMAJ,

Are you talking about the Democratic Senate Intel memo that was stolen and leaked to the public? The one reported on by Sean Hannity (that oh so reputable source). You know for someone who says that the media is not trustworthy you seem to believe wholeheartedly in the sources and stories that suit your political viewpoint.

Are you talking about how he told several heads of state in January 2002 that Bush was definately going to war? Bush says he hadn't even decided then. Even if he had decided I doubt that Rockefeller was made aware of this. Thirdly, this was not classified material. And finally, this was assumption made by many due to Bush's state of the union ("Axis of Evil") and the Bush family's past with Iraq. In fact, if I'm not mistaken, people thought when he came into office that he wanted to go to war with Iraq.

Also, you have said in the past that it was okay to inform only the Group of Eight, because the legislative branch leaks like sieve. In fact, you have many times claimed that the leak concerning this program and many others have come from Rockefeller, when all the evidence (Risen's statements and the information's details) points to a leak from the executive branch. And yet, you say "He was free to discuss his concerns with any other democrat members of the intelligence committee." Isn't that a little inconsistent? The fact is that the legislative branch has trusted with many secrets, no evidence points to them leaking the material and you claims against Rockefeller are futile means to attack a person who has served this nation well.

Noah
2.11.2006 4:11am
Michael B (mail):
Kovarsky,

Re., Porter Goss's recent NYT column and referencing 18 U.S.C. § 798 and 5 U.S.C. § 1213, I intended these specific statutory references only as something of a reminder, at this time. (Quite honestly I'm not sufficiently clear on the details yet, though perhaps I haven't studied the open source material sufficiently well. In a strictly tentative sense, re., 18 USC 798, A3 is seemingly the more likely applicable subsection. But again, there is much we do not know and that is why I was intending it as a couple of possible statutory references only. Additionally I'm not familiar with the case law and there may be other applicable statutes. And to be clear, if it is not obvious, am not advocating any overly zealous prosecution, to the contrary.)

"... would you mind summing up for me the list of people ... that the "leaker" is to go to in lieu of the press, in order of progression?"

Similarly, I would defer any specificity until we know the more complete set of details. So here too, at this time, I'd only reference 5 USC 1213 in a tentative and suggestive manner since the details, once they become better known, will determine 1) whether or not the disclosure is proscribed by statute and 2) if it is proscribed, any "order of progression".
2.11.2006 4:10pm
Neal Lang (mail):
It was Specter in Robert's hearing. And it also did not apply to the fourth amendment. It is also super-duper precedent.

Washington, D.C., January 11, 2006 – In his third day of intense questioning, Supreme Court nominee Samuel Alito continues what has proved to be a strong, thoughtful performance that has left Democrats little room for criticism of Bush’s newest candidate for the Supreme Court.

As in the nomination battle over justice Roberts last year, much attention has been given to Alito’s stance on abortion. And much like Roberts’ nomination battle, the last few days of questioning have seen Democrats grilling Alito on hypothetical situations which, as a judge who may very well face future court cases on the matter, he cannot responsibly answer.

Unlike Roberts, however, Alito has refused to cave and label the landmark 1973 abortion decision, Roe V. Wade, as “settled law”.

Pressed by Sen. Arlen Specter to state his opinion regarding Roe V. Wade Alito admitted that the decision bore a great deal of legal weight, especially considering it has been several times revisited and reaffirmed by the Supreme Court. However, he added “Sometimes changes in the situation in the real world can call for the overruling of a precedent.”

“I personally would not get into categorizing precedents as super-precedents or super-duper precedents,” he continued, saying “it sort of reminds me of the size of laundry detergent in the supermarket.”

“I don’t want to leave the impression that stare decisis is an inexorable command because the Supreme Court has said that it is not.” From: Alito Refuses to Acknowledge “Super-Duper Precedent” in Roe V. Wade

Like Roe v. Wade, Katz was also based on a Constitutional "right of privacy" that appears nowhere in the Constitution.
2.13.2006 11:20am
Noah Klein (mail):
Neal,

We discussed before and the expectation of privacy does not relate to the right of privacy. Those two different decisions on different issues. If you want on a law and a ruling, you should read the definitions of the terms that you use. The expectation of privacy relates to the subjective belief that a certain action is private. The right to privacy (whether you believe there is one or not) relates to an affirmative right that people inherently have to have a zone of privacy which the government cannot intrude upon. They distinct and do not have the association that you are trying to make.

Noah
2.13.2006 9:11pm
Neal Lang (mail):
We discussed before and the expectation of privacy does not relate to the right of privacy. Those two different decisions on different issues. If you want on a law and a ruling, you should read the definitions of the terms that you use. The expectation of privacy relates to the subjective belief that a certain action is private. The right to privacy (whether you believe there is one or not) relates to an affirmative right that people inherently have to have a zone of privacy which the government cannot intrude upon. They distinct and do not have the association that you are trying to make.

So you point is what? That the ficticious "right of privacy", in the ficticious "zone of privacy" does not include the ficticious "expectation of privacy".
MR. JUSTICE HARLAN, concurring.

I join the opinion of the Court, which I read to hold only (a) that an enclosed telephone booth is an area where, like a home, Weeks v. United States, 232 U.S. 383 , and unlike a field, Hester v. United States, 265 U.S. 57 , a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment; [389 U.S. 347, 361] and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant. KATZ v. UNITED STATES, 389 U.S. 347 (1967)

MR. JUSTICE BLACK, dissenting.

The Fourth Amendment protects privacy only to the extent that it prohibits unreasonable searches and seizures of "persons, houses, papers, and effects." No general right is created by the Amendment so as to give this Court the unlimited power to hold unconstitutional everything which affects privacy. Certainly the Framers, well acquainted as they were with the excesses of governmental power, did not intend to grant this Court such omnipotent lawmaking authority as that. The history of governments proves that it is dangerous to freedom to repose such powers in courts. KATZ v. UNITED STATES, 389 U.S. 347 (1967)

Mr. Justice BRANDEIS (dissenting).

The protection guaranteed by the amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence [277 U.S. 438, 479] in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth. OLMSTEAD v. U.S., 277 U.S. 438 (1928)

Hmmm! Apparently the same "association" was made by Justices Harlan and Black, in Katz, and Brandeis, in Olmstead.
2.14.2006 12:16pm