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President Kollar-Kotelly?:
The Wall Street Journal has a very puzzling op-ed today criticizing the Chief Judge of the FISA Court, Judge Colleen Kollar-Kotelly, for not permitting DOJ to include evidence obtained from the NSA domestic surveillance program in applications for FISA warrants. The Journal's editors are apparently outraged by a judge taking on this role, and ask "Who elected Ms. Kollar-Kotelly?"
[W]hy is an unelected judge such as Ms. Kollar-Kotelly making these decisions? Under the Constitution, those calls ought to be made by the President, who swears to defend the U.S. and can be held accountable by the voters if he fails. Under the current FISA court process, Judge Kollar-Kotelly answers essentially to no one.
  I don't understand. Judge Kollar-Kotelly "answers essentially" to the Foreign Intelligence Court of Review, the appellate court that has statutory authority to review denials of FISA warrant applications. If DOJ didn't like Kollar-Kotelly's interpretation of her legal obligation under FISA, then presumably the proper course of action under the law was to invite Kollar-Kotelly to deny an application and then to seek review in the Foreign Intelligence Court of Review — and, if necessary, in the United States Supreme Court. That's the process designed by the "elected" Congress that enacted FISA, at least.
J. Slaker (www):
This certainly does seem like an odd complaint to make. Then again, it seems to be rather fashionable to bash the authority of the judiciary these days.

Wasn't Kollar-Kotelly the judge that presided over the latter part of the Microsoft antitrust trial?
2.10.2006 11:21am
Public_Defender:
There may be thoughtful arguments for Bush's warrantless wiretapping, but they are not in this editorial. The accountability argument is just plain stupid.

As professor Kerr pointed out, Bush can appeal the judge's decisions, so she's accountable to a higher court (picked largely by Republicans).

But saying Bush (who can't run for reelection) "can be held accountable by the voters if he fails" is just plain false.

Didn't the Wall Street Journal Op-Ed page used to be a place to find strident but thoughtful conservative arguments?
2.10.2006 11:26am
J..:
Wasn't Kollar-Kotelly the judge that presided over the latter part of the Microsoft antitrust trial?


Yes. She also handeled the Redskins Trademark litigation, among other cases. Disclosure: While I was in law school, I interned for her. Great person, smart judge. I suppose that is a cliche.

Anyway, the Journal's editorial page appears to have grown in its vitriol recently. I used to like reading them. I've mainly stopped. That said, I don't think I read many editorials at all anymore.
2.10.2006 11:28am
WB:
Op-eds like this are frustrating to me.

I tend to think of the NYTimes as concerned only with liberal social policy ignorant of the role that judges actually play in the government.

This sort of thing shows that the WSJ suffers from the same flaw, but with different politics.
2.10.2006 11:31am
ron (mail):
Yes, WSJ seems confused. I have a problem with the compromise reached between the CJ and the DOJ, for the exact reason (a) it prevented a constitutional challenge and (b) was a sort of re-writing (re-legislating, not interpreting) of FISA inappropriate for the CJ to do. WSJ seems to be alluding to the latter, but reaching a confused conclusion: that it would be legal for the tainted evidence to be used. Actually, it appears it would have had the opposite result: a denial of all warrants tainted by warrantless searches--and likely an appeal. I personally think that is what the FISC/CJ should have done and perhaps, then, we would have avoided this mess. Does this seem plausible?
2.10.2006 11:33am
anonymous coward:
J.: The WSJ editorial page has grown in its vitriol? You mean since the rabid Clinton years, or more recently? (The WSJ during the Clinton years was awesome, like a daily dose of Ed Wood or Mystery Science Theater.)
2.10.2006 11:43am
Just an Observer:
There are some nuanced issues to think about in the matter of the FISC judge's actions. Some of them have been explored by Hugh Hewitt and other law professors, as I posted here.

Prof. Kerr is correct in pointing out that a straightforward solution of the legal issues would be to present the issues in a case for the judge to review. (I point out that the administration continues to avoid doing so.)

Prof. Hewitt, who generally seems sympathetic to the unwarranted surveillance, agrees on that point. He says on his blog: "While DOJ may have rightly feared angering the Chief Judge, the Department's acquiesence undermines its arguments concerning the NSA program that the president has the authority to conduct the program by hinting at a reluctance to test that authority via an appeal of a denied FISA application that rested on intelligence obtained by warrantless surveillance."

It is the Bush administration that is afraid to test the merits of the question in court. If Judge Kollar-Kotelly made a well-intentioned error, I think, it was in being a bit too ready to accommodate the administration's tactic of avoiding such court review.

The WSJ editorial writer apparently read Hewitt's blog, and jumped to the off-the-wall position that judges should have no role at all in matters before their courts. Bizarre.
2.10.2006 11:56am
byomtov (mail):
The WSJ editorial page would be comic if it weren't so widely read. Instead it's tragic.
2.10.2006 11:59am
Justin (mail):
Activist Judging = Decisions I don't like. Pass it on.
2.10.2006 12:00pm
Kazinski:
The Justice Department and Kollar-Kotelly reached a secret agreement that cases based on the NSA could not use evidence obtained from the surveilence to get a warrant. First of all this secret agreement required an unethical steering of cases to a specific Judge. And this secret agreement was not in an opinion or a ruling or anywhere it could be appealed. Either the program was legal and the evidence it develops is valid, or it is illegal and Congress needs to make it legal. I don't see any grey area there. I think it is legal, but if it was illegal, I can't see how making a backdoor deal to try to sanitize the warrant reflect well on either party.

Erwin Chemerinsky on Hugh Hewitt:

Well, I think it's very troubling. What they've basically done is act instead of the legislature to create a whole new set of rules. And while I think they were acting out of noble motives, I think what it points to is we need the legislature to be doing this, not judges on their own doing this.


When Hewitt, John Eastman and Chemerinsky all agree on a topic, even if the reasons are different, then there has to be some valid concerns there.
2.10.2006 12:05pm
Medis:
As an aside, I will note again that I find it highly amusing that certain parties seem to regularly drop the words "the Constitution of" from the President's Oath of Office.

Anyway, it seems to be that "judicial power" obviously includes adopting evidentiary rules and procedures. So, I think that when the WSJ uses the phrase "under the Constitution", they must not mean the Constitution of the United States.
2.10.2006 12:17pm
burnspbesq (mail):
@Kazinsky: I agree that a consensus among those three is unlikely to occur often, and that the existence of such a consensus should certainly cause one to take seriously the argument that what Judge Kollar-Kotelly did was questionable.

Reading further, however, one cannot help but be appalled by Eastman's position on what is the appropriate balance to be struck between what he supposes to be the President's Article II authority and the Fourth Amendment. Eastman has apparently drunk deeply of the toxic Yoo Kool-Aid, and suffered irreparable brain damage as a result.
2.10.2006 12:23pm
The Original TS (mail):
I'm fairly conservative but stupidity like this makes me want to join PETA just to give myself some philosophical plausible deniability.

People who have no clue as to how the court system works and who don't understand the separation of powers probably should not be writing editorials on the Judiciary and the Constitution. The problem is that now millions of people who rely on the WSJ for financial information and analysis will have this stupid political meme stuck in their heads.

When babbling lunatics spout silliniess, we can freely ignore them. But when otherwise reputable and trusted opinion makers do so, it's incumbent on the rational to apeak up. I hope Orin will write an Op-Ed for the WSJ or at least a Letter to the Editor to set the record straight on the concept of appellate review and the role of the courts v. the role of the executive.
2.10.2006 12:27pm
Bob Bobstein (mail):
This was an instant classic of WSJ editorial shamelessness in defense of whatever the Republican Party wants to do at the moment. It's only become more absurd with time. In early 2001, they argued that former Treasury Secretary Robert Rubin was urging the government to pay down the debt, rather than pass the Bush tax cuts, because he was in bed with "very large [foreign] banks." When it suits them at a given moment, there's no lie too nativist, populist, or just plain abusurd to be printed.

Trying to respond to WSJ arguments with facts and legal arguments is an exercise in futility. That's not the game they're playing.
2.10.2006 12:31pm
Medis:
Incidentally, I think the last bit of the op/ed indicates what this is really all about. I think that the WSJ is betting that if Specter gets his way and the courts address the legality of this program, the program will not fare well.

Accordingly, this is a little attempt at inoculation: they are introducing this little bit of court-bashing now in the hope that we will tolerate a lot more of it when they end up needing to inject us with a full dose.
2.10.2006 12:36pm
Jack John (mail):

Anyway, it seems to be that "judicial power" obviously includes adopting evidentiary rules and procedures.



Not to beat a dead horse, but you might do well to look at Klein. Congress shares that power to craft rules of evidence and procedure, but even Congress lacks such power where the power involved is exclusively executive, e.g., the pardon power. Congress tried to do just that in Klein, by reversing the evidentiary value of a presidential pardon, and got rejected, hard. I hope this reference to Klein is not perceived as a nasty attack that draws the ire of Orin Kerr.
2.10.2006 12:36pm
Jack John (mail):

As an aside, I will note again that I find it highly amusing that certain parties seem to regularly drop the words "the Constitution of" from the President's Oath of Office.



I think it funny that Article II is not in Medis' Constitution, but the words "legislative history" and "congressional intent" are. I hope this is not perceived as a nasty attack that draws the ire of Orin Kerr.
2.10.2006 12:39pm
llamasex (mail) (www):
Didn't the Wall Street Journal Op-Ed page used to be a place to find strident but thoughtful conservative arguments?


As long as I can remember the WSJ Op-Ed page was always a horrid black mark on an amazing paper.

In fact I've always seen Opinion Journal and more recently the failed TV show as weaking the strong brand identity the Journal has/had.
2.10.2006 12:39pm
John Lederer (mail):
I disagree, and I think that you all are using a slightly different defintion of accountable than is common.

Federal judges are "accountable" to the Senate (which can impeach them) and to a much lesser degree to Congress (which can raise, but not lower their salary, or limit their jurisdiction).

The fact that an appellate court can reverse does not make the trial judge "accountable" to it. It means that an error can be fixed. To use synonyms, the district judge is not "liable", "responsible", or "answerable to" the reviewing court.

Having once, long ago, been law clerk for a judge asked to resolve the problem of a once fine district judge who became mentally disturned after the death of his wife, and whom not the Court of Appeals in his circuit nor the Suprem Court Justice whose circuit it was, nor the Chief Justice could control, the problem is very real -- since impeachment is long, drawn out, and difficult.

For some time I have been uncomfortable about the FISA court. Warrants are, I suppose, an exception to the "case or controversy" requirment, but the FISA court has seemed to moved well into an area that not only lacks parties, but which has the flavor of advisory opinions, and a whiff of a court acting in an executive manner. That is not good, in my opinion.

I appreciate that when one looks for a disinterested referee, courts automatically come to mind, but the FISA setup, I think, is one that exacerbates the problems of using judges out of the normal role.
2.10.2006 12:50pm
Kovarsky (mail):
Kazinski,

The agreement did not involve "steering" cases to the judge secretly. It was a secret agreement for tainted warrants to be marked when they came before any FISA court(a secrecy that was desired by all parties, including the president - and i don't see how it could be a viable not-secret agreement without outing the NSA program itself).

by the way, this is the section of klein that "supports" the proposition that the president has inherent, unenumerated power that congress cannot override. you will notice that the pardon power is in fact granted in Article II, Section 2, and that the word inherent does not appear in the passage (or the opinion at all). You can all make up your minds whether Klein says that the president possesses unenumerated inherent power that trumps congressional legislation:


It is true that the section of the act of Congress which purported to authorize the proclamation of pardon and amnesty by the President was repealed on the 21st of January, 1867; but this was after the close of the war, when the act had ceased to be important as an expression of the legislative disposition to carry into effect the clemency of the Executive, and after the decision of this court that the President's power of pardon ‘is not subject to legislation;’ that ‘Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.'FN18 It is not important, therefore, to refer to this repealing act further than to say that it is impossible to believe, while the repealed provision was in full force, and the faith of the legislature *142 as well as the Executive was engaged to the restoration of the rights of property promised by the latter, that the proceeds of property of persons pardoned, which had been paid into the treasury, were to be withheld from them. The repeal of the section in no respect changes the national obligation, for it does not alter at all the operation of the pardon, or reduce in any degree the obligations of Congress under the Constitution to give full effect to it, if necessary, by legislation.
2.10.2006 12:54pm
Kazinski:
burnspbesq:
I think Eastman has drunk deeply of the SCOTUS (and FISA Court of Review) Kool-aid. He is citing cases that buttress his opinion. Where is a case that contradicts him? I think it is interesting, but hardly definitive, that Eastman and Hewitt are ready to cite cases, but Chemerinsky chooses not to reference any opinions that might help him make his arguement.

There is evidence presented in court (and accepted) hundreds of times a day in this country based on warrantless searches. As long as the search is reasonable then their is no taint to the evidence.
2.10.2006 1:00pm
Kovarsky (mail):
Kazinski,

I have to admit that I am getting very troubled by the increasingly frequent selective editing of texts here. Your post is extraordinarily misleading, as you imply Chemerinsky agrees with the other two, but he says:

I very much disagree with John. I think he's confusing here what the president has the power to do as commander-in-chief, and what may be introduced as evidence into a court. Just because the president has the power to do it doesn't mean it's lawfully obtained evidence, and can be used against a criminal defendant. And what these judges were saying is look, if it's not gained in compliance with the 4th Amendment, and it's not gained in compliance with the FISA statute, it has to be excluded.

And I'm not going to stop just by pointing out that the excerpt from Chemerinsky was completely misleading. I also happen to agree with the substance of Chemerinsky's reasoning.

His point is that well, the notion that the executive has authority to conduct a program is different from the proposition that anything from that program could be introduced in court. This is hornbook 4th amendment law. The exclusionary rule is REMEDIAL device, and it doesn't check what officers can do, it checks what they can bring into court.

Chemerinsky explains that he thinks this is a shame, because the evidence can be quite useful, but courts dont consider evidence taken in violation of the 4th amendment. District courts make that determination all the time, regularly in light of higher court authority that the particular practice in question - the one that captured the evidence in the first place - is under the authority of the entity doing the capturing.
2.10.2006 1:05pm
Just an Observer:
John Lederer,

I don't think FISC judges are "out of the normal role" when they are approving/disapproving warrants. That's what judges and magistrates are supposed to do.

What was remarkable about this situation was something occurring in ex parte meetings and contacts between the judge and DOJ officials -- none of whom had very much faith that the warrantless surveillance could withstand scrutiny in an actual case. The ex parte "compromise" described by the Washington Post article was apparently designed to avoid such judicial review.

When Judge Robertson resigned from his FISC assignment in December, an associate was quoted by the Post as saying some judges complained that FISC was a "Potemkin court." This procedure apparently was part of the source of the complaint.

What I find stunning about the WSJ editorial is that instead of criticizing the distortion of normal judicial review, the editorialist thinks there should be no judicial review at all!
2.10.2006 1:08pm
Jack John (mail):

In turn, [DOJ] 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 here. "This 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 1:10pm
Jack John (mail):

Just because the president has the power to do it doesn't mean it's lawfully obtained evidence, and can be used against a criminal defendant. And what these judges were saying is look, if it's not gained in compliance with the 4th Amendment, and it's not gained in compliance with the FISA statute, it has to be excluded.



1. See my last post.
2. Please read Klein. (That was not a nasty attack meant to draw the ire of Orin Kerr.) In it, it is clear that if the constitutional power at-issue is exclusively Executive, Congress and the Courts cannot set evidentiary rules that limit its exercise. In Klein, the Executive power at-issue was the pardon power.
2.10.2006 1:12pm
Kovarsky (mail):
The hot pursuit requirement has been doctrinally applied only to fleeing suspects, giving authorities the right to enter private premises without a warrant. That is not debatable.

It may "fit" within that requirement, but it would require a dramatic doctrinal extension, because as we all know and have been through a million times, no federal court has ever held warrantless taps to be admissible under the 4th amendment.
2.10.2006 1:14pm
Jack John (mail):

The hot pursuit requirement has been doctrinally applied only to fleeing suspects, giving authorities the right to enter private premises without a warrant. That is not debatable.


It isn't debatable, but not for the reasons you suggest: the hot pursuit/evanescent evidence exception applies when there is a fleeing suspect that may not be caught again or a suspect who has evidence that may be destroyed soon. In other words, the purpose of the exception is to prevent evidence from getting away, whether it be an obviously guilty person or drugs about to be flushed down the toilet that will be used as proof at trial. Since the doctrine sees no difference between physical invasions of the home and searches of private data, one can certainly be in hot pursuit of foreign intel that will be gone in hours because the target is on the move and will have dumped his $5 cell phone in the Euphrates.
2.10.2006 1:20pm
Kazinski:
Kovarsky:
There is nothing selective about my choice of quotes, and I didn't edit the quote, it was a whole paragraph. I said:

When Hewitt, John Eastman and Chemerinsky all agree on a topic, even if the reasons are different, then there has to be some valid concerns there.

My point was simply this: all three agree that it was wrong for Lambert and Kollar-Kotelley to reach a secret agreement on the NSA related cases with the Justice department. They disagree on the reasoning and I noted that. The disagreement is based mostly on the fact that 2 of them believe the NSA program was legal and there was no taint on the product of that surveilence, and Chemerinsky's belief that is was tainted and violates the 4th amendment.
2.10.2006 1:28pm
eddie (mail):
Kazinski and Cherminsky both have it correct. Let's not argue two separate point simultaneously.

Does the President have the authority to issue these types of searches?

I don't think so, based on the fact that the Congress specifically chose to regulate the particular action that the President is claiming to have "inherent" powers to execute.

But let's say that it is not "illegal" for the President to authorize these as an executive decision (sort of like a cop doing the same).

Does that mean that the evidence obtained from such warrantless operation can be used against an individual in any criminal proceeding?

Please cite some relevant precedent that addresses this.
2.10.2006 1:32pm
Kovarsky (mail):
I've read klein, and I have from the first time you posted it. You're flat out misrepresenting what it says, and I do believe that every other person who's read it at your behest has agreed with that assertion. I didn't feel it necesary to repeat what 8 other people had pretty conclusively established. Klein reverses the evidentiary ruling on the grounds that it effectively nullified the president's enumerated pardon power.

If you think congressional oversight of signals intelligence "effectively nullifies" the president's authority of commander in chief - which is the level of generality at which you have to state the power in order to have it function analogously to the pardon power in klein - then, as every other person that has taken their time with you on this tired issue has explained, we have nothing to talk about. you are not capable of being convinced.

And I'm not really sure what you mean by the idea that "the doctrine" (what doctrine) doesn't distinguish between physical and electronic searches? I quite plainly does. That's why there are all sorts of warrant exceptions for physical encroachments, but the Court has quite emphatically said that a wiretap requires a warrant. Now you might THINK that there shouldn't be a difference, and if you put the case to the court that the purpose of the hot pursuit requiremetn should apply here, you might get some votes (you might even win!).

But your position, that the president had all authority to evade judicial and congressional checks on this issue, requires that you think the issue to be crystal clear. In light of the very clear rule that all tapping requires a warrant requirement, if you continue to make the claim that it is "clear" that you can tap without a warrant well then we are at a similar impasse.
2.10.2006 1:34pm
Kovarsky (mail):
Eddie,

Every 4th amendment case the supreme court has ever adjudicated will explain the exclusionary rule to be a remedial measure. It is not a controversial point.
2.10.2006 1:35pm
Jack John (mail):

I don't think so, based on the fact that the Congress specifically chose to regulate the particular action that the President is claiming to have "inherent" powers to execute.



You're missing the main point here: what is the authority upon which Congress is mandating that the President have a warrant?
2.10.2006 1:38pm
Jack John (mail):
Kovarksy,

Your last post neither responds substantively to any of the points made in my last three posts, nor does it advance your case. What it does is attempt to insult me and demonstrate how incivil you are. I would suggest that you refrain from such personal attacks.
2.10.2006 1:40pm
Jack John (mail):
"This program" does not involve the tapping of any wires.
2.10.2006 1:42pm
Kovarsky (mail):
Kazinski,

At this point it's not quite clear what you are saying. Chemerinsky was making the point that this illustratese how the executive needed to go to the legislature in the first place, quite contrary to what you seemed to imply in your post.

The point is that there should be no need for a "secret agreemeent" because the government should have been flagging the "tainted" evidence so FISC could adjudicate it and the appellate courts could review its admission. But everybody knew the administration wasn't doing that (that was the concession secured in the compromise, for goodness sakes!). Stuck between a rock and a hard place, because the administration was not identifying the sources of its evidence voluntarily, so that it could be adjudicated in court (in flagrant violation of the law), they did the best they could by reaching an agreement with baker.

It's surely a "shame" that it had to go down that way, but the Journal's implication that somehow the blame is to be laid at FISC's door betrays, as most people on the thread recognize, a pretty pathetic understanding of legal issues.
2.10.2006 1:43pm
Jack John (mail):

If you think congressional oversight of signals intelligence "effectively nullifies" the president's authority of commander in chief - which is the level of generality at which



If you go back and respond to one of my latest posts, I explicitly ask what authority Congress is relying on. Either Congress has authority, or it doesn't. You're making the case it has authority, please cite the authority it has.
2.10.2006 1:43pm
Kovarsky (mail):
OK, JJ. Gave you another chance. Done for the day.
2.10.2006 1:48pm
Jack John (mail):

Kovarksy: And I'm not really sure what you mean by the idea that "the doctrine" (what doctrine) doesn't distinguish between physical and electronic searches? I quite plainly does. That's why there are all sorts of warrant exceptions for physical encroachments, but the Court has quite emphatically said that a wiretap requires a warrant. Now you might THINK that there shouldn't be a difference, and if you put the case to the court that the purpose of the hot pursuit requiremetn should apply here, you might get some votes (you might even win!).



"[F]or Fourth Amendment analysis purposes, courts have made no distinction between electronic surveillances and physical searches."

--- STATEMENT OF JAMIE S. GORELICK, DEPUTY ATTORNEY GENERAL, BEFORE THE PERMANENT SELECT COMMITTEE ON INTELLIGENCE, U.S. HOUSE OF REPRESENTATIVES, CONCERNING WARRANTLESS PHYSICAL SEARCHES CONDUCTED IN THE U. S. FOR FOREIGN INTELLIGENCE, PRESENTED ON JULY 14, 1994, available at http://thinkprogress.org/gorelick-testimony/
2.10.2006 1:51pm
Jack John (mail):
At this point, I would note that not only has Kovarsky made contentions that are false, he has attempted to defend demonstrably false contentions by insulting others. There is no substantive value to his last few posts, none whatsoever. They offer no facts for others to rely upon, no arguments that withstand the test of reason, and serve no purpose other than to draw debate away from rational consideration of alternative positions and instead divert them into the realm of nasty personal attacks. The tone of his posts alone should be enough to deserve a warning.
2.10.2006 1:55pm
KMAJ (mail):
While I find the WSJ editorial lacking persuasion, those seeking to extend criticism beyond this specific one to a blanket condemnation of WSJ editorials are revealing political leanings and not relevant discussion. If blanket condemnations were relevant, why not extend it to the NY Times, Washington Post or my hometown paper, the St. Louis Post-Dispatch, all have a propensity for left leaning screeds that exceeds the right leaning screeds of the WSJ.

The specific WSJ editorial loses me when it decries Kollar-Kotelly for applying FISA evidentiary standards. If there is something to be addressed it would be the evidentiary standards that currently exist. If, as the WSJ editorial puts forth, these judges are really resurrecting 'the Gorelick Wall', the DoJ certainly has precedent to appeal to the FISC Court of Review or the President can approach Congress to amend that section of the law.

But WSJ editorial is not the only part of this deserving criticism, the Washington Post article's attempt to play politics and sway public opinion with a slanted presentation is equally, if not more disturbing. With an editorial, you expect opinion, with a news story, you don't. Washington Post clearly used this story to try to cast a negative light on the NSA surveillance program.

The old media tends to be the source of many discussions, with many almost worshipping or holding them up as gospel. If you are bombarded with the same slant on news day after day, you slowly become indoctrinated, and find outrage when another publication presents something that does not follow what you have been told repeatedly. This WSJ editorial is certainly not one of their finest efforts, but when put in the perspective of editorials from all newspapers, in general, it probably ranks as average or par for the course.
2.10.2006 2:01pm
Kazinski:
Kovarsky:
What do you mean it is not clear what I said? I said that Cherminsky found it "very troubling", (that means wrong) that Kollar-Kotelly reached an undisclosed secret under the table (that means they didn't tell anybody) agreement with DOJ. And I also mentioned that Hugh Hewitt and John Eastman agreed with him. And Jonathan Adler too for that matter.
2.10.2006 2:04pm
Justin (mail):
Kazinski, you are completely conflating the problem of "discretionary deference" that Kollar-Kotelly is receiving from the left in allowing the program to continue, and the absurd argument made by the WSJ and HH that the deference not only was proper, but was absolute and should have gone significantly further. It's like saying that a liberterian and a communist agree that the current welfare system in America is flawed, and thus the liberterian's criticism should be strong evidence of the validity of the communist's criticism.
2.10.2006 2:12pm
Kovarsky (mail):
Kazinski,

The implication that you gave to Chemerinsky finding it "troubling" was somehow that the judges were at all to blame for making the deal. Yes, he found it "troubling," but he plainly acknowledged that they were forced into that position by the administration, because the alternative would be to admit evidence that was tainted - and have that evidence admitted in a manner that was also unreviewable.
2.10.2006 2:20pm
Tom Holsinger (mail):
Here is an exchange on this point between Hugh Hewitt and law professor Jonathan Adler:
"HH: Are you also alarmed by what appears to be the manipulation of the docket, so that a class of cases only comes to Kollar-Kotelly, and that she avoided review by the Foreign Intelligence Surveillance Court appeals court on this matter?

JA: Oh, certainly. And unfortunately, there is a history of at least the appearance of the manipulation of the docket of cases in federal district court in the District of Columbia. And given that history, the appearance is very bad. I mean, I don't like to make accusations about what judges' intentions are and the like, but that's one of the reasons why we have rules about how cases go through the process, and which judges they come before. And anytime a judge manipulates that, it undermines our faith that judges are neutrally applying the law, and faithfully executing their obligation. So that's another ground on which this is troubling to me, because it raises the possibility of accusations that we don't want judges to be subject to.

HH: How about the paragraph that reads, "Kollar-Kotelly complained to then-Attorney General John Ashcroft, and her concerns led to a temporary suspension of the program. The judge required that high level Justice officials certify the information was complete or face possible perjury charges."

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

HH: Exactly.

JA: ...and an executive department official outside the context of a given case. Now if in a given case there's reason to worry about the completeness of certain information, that's one thing. But kind of this...what appears to be kind of ad hoc communication and decision making is to me, troubling. And now, some people have suggested that this sort of thing has happened for a long time in the FISA court. And if that's true, then I think we've had a problem for a long time. I mean, we don't want judges making these sorts of calls in these sorts of contexts."

Judge Kollar-Kotelly's conduct as a FISA presiding judge has created major impartiality and appearance of impropriety issues.

Point of information:

These matters involve intelligence issues - it's all about electronic intelligence. There are applicable intellligence practices of "dirtying", "misdirection", etc., which are most definitely pertinent to the actions of the Bush administration vs. a vs. the FISA court. Those familiar with such practices recognize them in operation.

Also involved is a concept called "information war" which applies in particular to Attorney General Gonzales' testimony to the Judiciary Committee. Those who find his statements apparently contradictory to some interpretations of FISA have not considered the many different and often overlapping purposes his testimony served. There was a reason he was not under oath.

Welcome to the "black world" and spookdom.
2.10.2006 2:21pm
Kazinski:
Jack John:
I don't think you are being fair trying to construe Kovarsky's posts as personal attacks, or that he is trying to intentionaly divert the discussion. I think a much charitible interpretation is that he is struggling to understand the issues and the points being made. It isn't that he disagrees, but it is obvious he is having trouble following the arguement.
2.10.2006 2:21pm
Duncan Frissell (mail):

The Journal's editors are apparently outraged by a judge taking on this role, and ask "Who elected Ms. Kollar-Kotelly?

Here's the easy explanation. The WSJ opposes the existence of FISA and thus any actions by a FISA judge. That's what this phrase means: "the folly of putting judges in control of national security decisions." There's nothing unusual about that position. Lots of people share it.

In fact civil libertarians (particularly cyber-libertarians) opposed it before anyone in the general public had heard of FISA because they were opposed to secret courts. Remember when FISA was secret? Remember when NSA was secret? [Created at midnight on election night 1952 by Truman's executive order.]

The WSJ and George wouldn't mind if there was no FISA. They don't think national security wiretaps need a court order.

Just like FDR didn't think he needed a warrant to have Western Union keep copies of all overseas cables for government examination at
this building in lower Manhattan a few blocks north of Ground Zero.
2.10.2006 2:30pm
Houston Lawyer:
There seems to be a general consensus here that nothing is good or valid unless a judge has passed upon it in some form or function. The main point of the WSJ articles, of which this latest editorial is a part, is that gathering foreign intelligence is an executive, not a judicial function.

I am agnostic about whether the President had the legal authority to put this program into place. It is possible that he has exceeded his Constitutional authority. But then again, since the Supreme Court seems fit to re-write the constitution from time to time, I'm not going to get overly upset if the President stretches the limits of his authority.

I believe we need a different set of evidentiary rules for national security related cases than the ones developed for domestic criminal law enforcement. In these cases, the costs of the exclusionary rule need to be weighed against the benefits. The exclusionary rule is judge-made and can be re-written like any other rule.
2.10.2006 2:32pm
Just an Observer:
KMAJ,

Of course, you spin this development as an example of bias on the part of the Washington Post. And of course, you do not dispute the facts reported there, you merely attack the paper that reported them. You really could be replaced by a recording when you do this. Perhaps in the interest of brevity we can develop a shorthand symbol KMAJAHA to mean, "Insert ad hominem attack by KAMJ here."

On a related note, I clearly recall you saying in an earlier exchange that you personally favor resolution of the legal merits of the NSA controversy in the courts. All week I have been awaiting your endorsement of Sen. Specter's plea to AG Gonzales that the government submit the question to the courts for such determination. Have I missed the post where you made such an endorsement?
2.10.2006 2:36pm
KMAJ (mail):
Reading the back and forth in this string, I notice an absence of recognition of the unique overlap that the WoT and terrorism presnt between intelligence gathering and criminal prosecution. This overlap goes to the foundation of civillian criminal court versus military tribunal argument. If intelligence gathering provides solid evidence of criminal conduct (terrorism is a crime), are we not shooting ourselves in the foot if we extend civil liberty protection to an enemy/terrorist ? I do not pretend to have the answer, but it seems to me that this is a very delicate question where a very careful balance needs to be created, where going to far in either direction causes more harm than good.
2.10.2006 2:48pm
Tom Holsinger (mail):
KMAJ,

California has had a policy for scores of years of stopping traffic coming into the state periodically to check for pests like the Medfly which would harm California's agriculture. The Highway Patrolmen doing the stops occasionally arrest people at such stops for obvious crimes such as carrying open containers of alcoholic beverage. The stop is for a non-criminal purpose, but they don't have to ignore evidence of crimes. They just can't use the stop as an excuse to look inside vehicles' trunks.
2.10.2006 3:04pm
Kazinski:
Just an Observer:
How do you suppose Gonzales would go about submitting the question to the courts to resolve? I wasn't aware that the courts had a legal advisory service.

The only mechanism I can think of for the DOJ to get an opinion on the legality of the NSA surveilence is to file conspiricy to violate civil rights charges against Rockefeller, Roberts, Harman, Hoekstra, Gonzales, Ashcroft and Kollar-Kotelly, et al. And of course Cheney and Bush would be unindicted co-conspiritors. Somehow I don't think that is going to happen.
2.10.2006 3:08pm
KMAJ (mail):
JaO,

I would love for you to post your credentials on journalistic expertise. Do you deny the WaPo article casts a negative light on the NSA surveillance ? I have stated before, simply posting some facts does not go to the core of journalistic integrity. Any news story can claim factual presentations, that does not mean they have presented ALL the facts. Any news story is subject to slanted presentation in the facts they choose to present, the choice of words within the story to shape perception and the position these facts, quotes, etc. are presented in a story. The WaPo story clearly framed its presentation that created the perception of the NSA surveillance as a bogeyman. This 'ad hominem' charge is a typical non sequitur when rebuttal is weak. Defending the 'old media' is not arguing from a position of strength but from a position of maintaining the status quo and fighting change.

The 'old media' has not adjusted to the shift in societal perceptions and attitudes, neither has the legal profession. Both, in general, share an elitist view that they know what is best for the people and forget that the Constitution and federal government is of, by and for the people, not just lawyers or journalists. Both of those segments of society wield great power and influence, they do not always wield it wisely and responsibly or in the best interests of the people. Instead, these unelected segments sometimes abuse their power and influence by seeking to protect their own interest at the expense of the people.
2.10.2006 3:11pm
Bob Bobstein (mail):
KMAJ: "The 'old media' has not adjusted to the shift in societal perceptions and attitudes, neither has the legal profession. Both, in general, share an elitist view that they know what is best for the people and forget that the Constitution and federal government is of, by and for the people, not just lawyers or journalists."

Y'know, I'd rather the courts take a look at this issue, rather than leaving it to the commentors at LGF and DemocraticUnderground. Or even Volokh.com.

I could be misunderstanding you, but if you are arguing that the Internet makes judicial review obsolete, I'm unpersuaded.

See Tushnet, Taking the Constitution Away from the Courts, for some robust theorizing that might take your argument further.
2.10.2006 3:17pm
Just an Observer:
KMAJ: How do you suppose Gonzales would go about submitting the question to the courts to resolve?

I don't know specifically what Specter had in mind, but the contours of such a test case are readily apparent from the facts in the Post story. The government could have applied for a warrant for a person previously surveilled without a warrant, justifying the warrant with information gleaned from such surveillance.

The FISC court then would have the question of the legality of the warrantless surveillance before it, and could rule on the matter. If the FISC ruling went against the government, the case would be appealed to the FISCR, whose rulings are reviewable by SCOTUS. (In that scenario, the government may even have had a built-in advantage, because FISC rulings in their favor may not be reviewable by FISCR. Even with such an advantage, DOJ did not seek vindication of its legal claims.)

At least Hugh Hewitt, who is quite sympathetic to the administration's legal claims, has the courage of his convictions. He says the government should have sought such a ruling.

Predictably, you exhibit no such courage.
2.10.2006 3:20pm
Medis:
As noted, I don't think a court adopting an evidentiary rule is problematic. At least initially, I'm also not disturbed by the Chief Judge consulting with the government "ex parte" on that issue (I may be wrong, but I think the Supreme Court solicits advice from all sorts of sources when adopting or amending Rules).

The docket control, however, does sound a little fishy. But I don't really know enough about how that is supposed to work.
2.10.2006 3:23pm
PersonFromPorlock:
Jack John:

what is the authority upon which Congress is mandating that the President have a warrant?

If the President is acting as Commander in Chief of the armed forces, then the authority is implicit in Congress' Article I Section 8 power "To make Rules for the Government and Regulation of the land and naval Forces."
2.10.2006 3:23pm
Just an Observer:
KMAJ: Do you deny the WaPo article casts a negative light on the NSA surveillance ?

I agree that the facts reported by the Post, particularly the fact that a pivotal DOJ official and the chief FISC judge doubted the legality of the surveillance, might be said to "cast a negative light" on the program.

Reporting those facts is certainly not evidence of bias on the part of the Post, but of enterprising reporting. As usual, you seek to obscure facts with ad hominem attacks. The premise is many of your posts here is that facts and legal arguments are not real, but mere artifacts of someone's bias or partisanship.

Can we agree that instead of cluttering up the blog repeatedly with such ad hominem attacks in the future, you will just use the symbol KMAJAHA?
2.10.2006 3:29pm
OrinKerr:
FYI,

I have blocked Jack John's IP address. I may unblock it if Jack John can assure me that he can post without repeated nasty attacks on other commenters, but for now that's the call I'm making.

-The Management
2.10.2006 3:45pm
Noah Klein (mail):
Orin,

I understand that this is your forum and I would not presume to tell you how to run it, but I do very humbly request that you unblock Jack John's IP address and allow him to post here. I appreciate the gesture, since most of Jack John's invective was thrown in my direction, but I think his own style of argument and lack of respect hurts his argument more than it insults another person. I feel that I am obligated to make this request, since I did not like it when Prof. Volokh ousted George Gregg whose opinions I agree with but not his methods. I hope that you will reconsider. Thank you,

Noah
2.10.2006 3:56pm
Richard Aubrey (mail):
The question is not, as is generally the case, whether George Bush is a poopyhead.
The question is whether the judges acted properly.

In addition, the supposed rejection of NSA material in authorizing a warrant seems strange. Does the Fourth Amendment come into play in the accumulation of evidence for a warrant request? In other words, can poisoned fruit be used to get a warrant?
If so, what's the problem?
2.10.2006 4:03pm
KMAJ (mail):
Bob Bobstein,

I do not make the case that the internet makes judicial review obsolete. The judiciary and journalism have an important and pivotal role to play. My point was that both the journalism and legal professions are subject to imperfections and self-interest. From a socoiological standpoint, both institutions tend to be monolithic and slow to adjust to changes in society. Personally, I think that slowness is, for the most part, a good thing, as it curtails massive leaps and foments smoother, and thus less jarring, shifts, to the consternation of those on the far right.
2.10.2006 4:04pm
Noah Klein (mail):
Richard,

I am pretty sure that preventing "posioned fruit" from being used to get a warrant was precisely what the presiding judges were attempting to prevent. The presiding judges, when learning of the program, thought it violated FISA and thus sought to ensure that all FISA warrants would not include evidence gathered in a way that violated FISA. I do not see what the great objection to this is.

Noah
2.10.2006 4:10pm
Dilan Esper (mail) (www):
One more thing about JackJohn's pardon argument. Everyone has pointed out a million times that the war power is shared unlike the pardon power. But it's worth noting that even with respect to the pardon power, he's dead wrong. Congress CAN make rules of procedure in that area.

For instance, suppose you have a petition for habeas corpus brought on the ground that the President pardoned the prisoner. Can Congress not mandate, for instance, that the Court receive a certified copy of the pardon as proof that it exists?

Klein says that Congress and the courts make rules that can't change the EFFECT of a pardon, because it is a power (unlike the war power) that is granted exclusively to the President. So, Congress couldn't make the pardon itself inadmissible in the habeas proceeding. But so long as Congress does not impinge on the effect of the pardon, Congress retains its full power to make rules of practice and procedure for Article III courts.
2.10.2006 4:18pm
KMAJ (mail):
JaO,

I find it interesting that you decry 'ad hominem', and then engage in personal demeaning attacks yourself. Could this be a lack of ethics in your strength of conviction ? No where in my postings did I make a personal attack on you. I am awaiting your presentation of journalistic credentials. It has been my experience that those who need to engage in ridicule as a tactic come from a position of weakness to lamely claim a position of higher moral authority. Your pusillanimous argumentation style, the need to demean and ridicule, provides evidence of the elitism I have alluded to. But, you are free to engage in such tactics, it's no skin off my back.
2.10.2006 4:21pm
Bob Bobstein (mail):
Thanks, KMAJ.

I agree with you on the general point that "both the journalism and legal professions are subject to imperfections and self-interest."

I think that we'd also both agree that this general idea does not necessarily tell us where to come out on any given issue-- ie, whether the warantless wiretapping program should be subject to judicial review, or whether the Post should alster its tone in the presentation of a given story. In fact, there's a possibility that we might disagree on the merits of those issues.
2.10.2006 4:22pm
Tom Holsinger (mail):
Point of information:

I have in the past made unfavorable comments about "feds", indicating that there was a characteristic unpleasant form of behavior by some federal employees. You have recently seen examples of such behavior and, later on in other venues, may do so again. But we won't see it here for a while. At least not from him.

Professor Kerr,

Thank you.
2.10.2006 4:22pm
Just an Observer:
I honestly am trying to understand the duty of a judge in such a matter. As part of that inquiry, I find it interesting to wonder if there is a difference between the duty of a judge sitting as a FISC judge and the same judge sitting in their District Court. (Please excuse the repetition, as I have posted a variant of the conundrum before. But I remain unsatisfied intellectually.)

A hypothetical: Suppose a U.S. attorney meets with the chief judge of his district and informs the judge that the President has determined that warrants will no longer be required in Title III terrorism cases, but sometimes the government may find it useful to seek warrants in matters that turn out to be related. Further, the USA "briefs the judge into the program," and confides that such warrantless wiretapping routinely goes on, and the attorney general has issued a secret opinion approving it.

1) Would it be okay for the judge and the U.S. attorney to construct procedures to ensure that when warrants are sought, the attorney general certifies that they are not based on the fruit of the warrantless wiretaps?

2) Since warrantless wiretapping is a crime under Title III, what duty -- if any -- does the judge have to see that the activities are investigated and prosecuted? Are there any conspiracy crimes that might derive from the underlying offense of wiretapping?

3) Substitute "torture, sometimes resulting in death" for warrantless wiretapping in the hypothetical. Does that change the result of the analysis?
2.10.2006 4:22pm
Medis:
I'm also interested in JaO's questions. I took a first cut at some of them elsewhere, but I'd be interested in other opinions.
2.10.2006 4:26pm
srg (mail):
Noah,

You wrote:
"I am pretty sure that preventing "posioned fruit" from being used to get a warrant was precisely what the presiding judges were attempting to prevent. The presiding judges, when learning of the program, thought it violated FISA and thus sought to ensure that all FISA warrants would not include evidence gathered in a way that violated FISA. I do not see what the great objection to this is."

Are you serious? If evidence of a terrorist plot was gathered contrary to the FISA rules, you wuld simply throw it out? Surely there has to be a middle way between this policy, which would be throwing out the baby with the bathwater, and simply allowing the government to do whatever it wants.
2.10.2006 4:27pm
Noah Klein (mail):
Srg,

I wouldn't throw it out, because I am not a FISC judge, but the presiding judge said that he and she would. They stated clearly that they thought this violated FISA and they did wish to have this "poisoned fruit" taint the warrants that the government wished to seek. This is a judicial determination far above my head. I just defended the court's authority to make such a determination and the reasons behind it. Also, this is not throwing the "baby out with the bathwater." Information is still in the government's hands and they can still use it prevent a terrorist attack. They just can't use it to get a FISA warrant.

Noah
2.10.2006 4:39pm
KMAJ (mail):
Bob Bobstein,

Thanks, and, yes, I agree, it does not tell us where to come out on an issue. When I offer opinions, they are no more than that, with no expectation or demand of agreement. The NSA issue has valid arguments on both sides, which creates a vigorous discussion. My critique of the 'old media' was not a demand that they alter their presentation style, freedom of the press is essential, the marketplace will be what ultimately influences them, if their subscription rates continue to decline, they will, at some point, have to make a decision. There are very few journalists that I would hold up as examples of objectivity, Jim Lehrer would be near the top of my list.
2.10.2006 4:39pm
Tom Holsinger (mail):
JAO,

I believe then Attorney General John Marshall wrote an opinion during the first Adams administration justifying the warrantless opening of international mail by suspected French agents. My recollection was that the justification was something like, "If we deliver it, we can also refuse to deliver it, so submission of mail to our delivery service is implied permission to read it". I might have that confused with an opinion by a later Attorney General.

The Executive branch has at almost all times, AFAIK (not all times - there was a great line by then Secretary of State Stimson during the Hoover administration that "Gentlemen do not open each other's mail"), freely inspected the mail, and then the telegrams, and then the phone calls, of suspected enemy agents in peace and war when those cross the U.S. border.

There is a total failure of agreement on dominant underlying assumptions in this discussion. A common characteristic by those on one side is outright refusal to read authoritative public record sources impeaching their assumptions.
2.10.2006 4:40pm
Just an Observer:
KMAJ: I find it interesting that you decry 'ad hominem', and then engage in personal demeaning attacks yourself. Could this be a lack of ethics in your strength of conviction ? No where in my postings did I make a personal attack on you. I am awaiting your presentation of journalistic credentials.

My journalistic credentials, if any, are irrelevant. As are yours, if any. The Post article speaks for itself, and any of us is competent to discern the difference between fact and opinion.

If you have knowledge -- actual knowledge, not just something you speculate might be "plausible" as you have done on some occasions -- of material facts about the internal workings of FISC that the Post deliberately omitted, please state those facts and their attribution.

I am not attacking you personally. Rather I am attacking your style of argument, which on this blog has exhibited a pattern of ad hominem attacks.

On some occasions your ad hominems have crossed another line, actually impugning the ethics of third parties -- the CRS legal analysts and Judge Robertson. (I am still waiting for your retraction of those sleazy and unsupported charges.) Your attack on the Post in this case approaches that line, but that is not my main point. It is sufficient in this case to note that you do not challenge the factual content of the Post article, but merely attack the Post.

Your mission on this blog seems to be to blow smoke however you can, in an effort to divert attention from factual and legal matters. I will continue to decry such tactics when I see them. Please don't take it personally.
2.10.2006 4:50pm
Noah Klein (mail):
Tom,

First, what is AFAIK?

Second, I believe that the people who think this program is incongruent with FISA have admitted many times that the practice of prior administrations was allowed both by the constitution and Congress's failure to proscribe those actions (in fact, I think Title III expressly gave the executive permission to take such actions). What many others and I have said is that once FISA was passed by Congress and signed by the president that power limited to demonstrating that such surveillance had a probable cause standard. We have said that Congress is authorized to do this by Article I Section 8. I think Medis has very clearly demonstrated that FISA is no different than the UCMJ with his espionage example. The actions of past presidents are irrelevant, because prior to FISA those actions were implicitly permitted, but after FISA those actions were expressly proscribed.

Noah
2.10.2006 4:58pm
Just an Observer:
Tom Holsinger,

I find the postal story interesting, but I am primarily interested here in the role of judges.

Noah,

AFAIK = "as far as I know"
2.10.2006 5:03pm
Kovarsky (mail):
Kazinski,

While I appreciate your charitable point about how I'm not personally attacking someone but rather that I just don't understand the issues, I find that sort of condescending remark to be lacking in precisely the civility that Jack John attributes to me. I think it's exactly that ilk of backhanded charity that ends up making people stop listening to your arguments. What separates people like Tom and KMAJ from people like you and JJ is the tendency of you two to dismiss people as "stupid" or "slow" when they do not agree with you. It's as if you are daring people to compare resumes with you, and then you proclaim some sort of "victory" when people don't fall for your childish credential-baiting. It's one of the hazards of pseudonymous posting, but it on the other hand very quickly reveals whose civility and even-handedness is a product of earnest commitment to constructive debate, and who possesses those qualities merely because they are in a real-space forum that can hold them accountable for their absence.

I think Tom, incidentally, makes a good point. I have a big problem if cases were being diverted on the docket. A big one. I am going to go back through the thread and try to figure out how many and why the cases were diverted, who would be in a position to divert them, etc.

I, however,I don't have that much of a problem with the back-room compromise that made an evidentiary procedure unreviewable, when the alternative was a no-room compromise that would make the evidentiary admissibility itself unreviewable. That is precisely what I have been saying the whole time, that is precisely what Chemerinsky was saying, and that is precisely at odds with the insinuation that Kazinski's post made.

Whoever made the point about the WSJ not being dismissed out of hand because of one editorial - absolutely correct. I don't think that this article is any more silly and uninformed than some of the things we read in other newspapers all the time, and all exhibit differing ideological valences.
2.10.2006 5:05pm
Noah Klein (mail):
JAO,

Thank you.

Noah
2.10.2006 5:08pm
Tom Holsinger (mail):
Kovarsky,

The real problem with the KK resolution of the procedural issue was its lack of transparency - a secret deal secretly arrived at. It and the decision-making process underlying it were not made known to the other FISA judges. THAT creates the appearance of impropriety in spades. Results should not be dependent on which judge hears a certain matter.

Worse, KK let herself be "compromised" here - she gave the Bush administration a means of tacitly blackmailing her. IMO she should immediately resign from the FISC.

IMO the Bush administration is gradually "compromising" and "co-opting" the FISA bench using known intelligence techniques. This is one of the possible explanations for Judge Robertson's resignation from the FISC.

It may be that such activity is fostered, or even de facto mandated, by structural weaknesses in FISA.

I'd rather not wait for some disaster to ditch FISA. I'd rather do it now so the Executive branch will have sole responsibility for any disasters, and so try harder to avoid those Right now they can, quite possibly correctly, evade responsibility by claiming that FISA's weaknesses made it happen. Evasion of responsiblity is a classic game and bad statutes like FISA foster them. Only here the consequences of failure could be catastrophic.
2.10.2006 5:20pm
Noah Klein (mail):
The funny thing is that I remember about a month ago, when the letters from Pelosi, Harman and Rockfellar came out, the people defending the administration said well the presiding judge didn't object to the NSA program so can it be a violation of FISA (paraphrasing). Now that evidence has come out that two presiding judges appointed by CJ Rehnquist has come out, the defenders of the program can't stop lampooning those judges for trying to exclude tainted from their courts.

Noah
2.10.2006 5:29pm
KMAJ (mail):
JaO,

First, trust me, I do not take any of your condescension or demeaning attempts to ridicule personally, to do so would actually be lending you power and authority.

Re: The WaPo article, as the reporter does not have access to what went on in the meeting, nor does he have access to facts of the actual NSA cases involved, the reporter DOES NOT have all the facts to present. Instead, he relies on an anonynous source's second hand recitation and engages in conjecture. Not having access to all the facts means your presentation is slanted, not matter how objective a reporter attempts to be. In this case, I question how objective the reporter attempted to be as this appears to be a prime example of gotcha journalism, rushing a story to print without knowledge of how accurate the second hand information is.

What I find really glaring is how the 'old media' refuses to cover the leak aspect of this issue with the same vehemence that they covered Plamegate. Do you defend such stilted coverage ? The lead paragraph says this has only happened TWICE in four years. It is a non-story, and once again we have anonymous senior officials leaking without any presntation of motivation. You are free to open and swallow as much as you like, I know the profession and how it operates, in my opinion, one is wise to question these types of stories, especially when the media has an iron in the fire, criminal liability from publishing classified information.
2.10.2006 5:43pm
Kovarsky (mail):
Noah,

I think the point of pro-inherent power camp is that inherent power is not residual in the sense that it derives from the absence of congressional action, but that it derives from article II of the constitution irrespective of congressional action. So, I think they are right in that congressional action doesn't really affect the president's inherent authority under their theory.

Where I think many of us disagree is not with the notion that if their theory is correct, the absence or presence of legislation is material, but with the idea that this formulation of inherent power is somewhat opportunistic, since nobody until john yoo has ever really understood it in anything other than this residual sense.

In defense of the John Yoo theory, it's never really been tested. But it's never really been tested in part because nobody's really considered it a viable enough theory upon which to base executive action, so it's never come up. Now, the theory goes, we have to test that legal understanding for the first time, because we're in a "post-9/11 world."

Then the Yoo camp sort of splinters, I think, into two sub-camps. The first is that all legal precedent is out the window, because the calculus is different. This is the argument that I think most of us just sigh at, because there's just no common plane of argumentation.

The second camp is one that thinks that the constitution contemplates and provides for this sort of paradigm shift in the form of the non-residual understanding of inherent authority granted to the president. Yoo's thoery of executive power, while almost universally lauded as an important piece of scholarly work, has been pretty much exposed as an exercise in federalist paper cherry picking.

Klein somewhat buttresses the argument, as it held that Congress could not require courts to functionally override the president's pardon by excluding certain evidence. It's hard to see the analogy, though, because the pardon power is an enumerated one, and the only enumerated power associated with the issue here is the power as commander in chief. So Klein makes it seem as though you would have to argue that the FISA courts effectively null the president's enumerated power as commander in chief. I don't see how that argument is made, but it might be there somewhere. I just can't seem to figure out precisely what it is because the response to the point I just made is always a slew of "you're stupid's" or "you just don't get it's," etc.

But I think the beef with the second subset of Yoo camp is this. If you think that is what the constitution means, and you have that authority, why does it seem as though the administration is so methodically avoiding an Article III determination that such is the case? Surely everybody would benefit from knowing whether or not the executive is correct in its interpretation. The reply is, of course, that the Supreme Court's interpretation of constitutional power is no more legitimate than that of the executive, so the executive can make the determination itself. I read that as a head-on affront to Marbury, but there are arguments to the contrary.

That is, however, a long-winded explanation for why I think proponents of the president's position really don't care about the presence or absence of legislation addressing the matter.
2.10.2006 5:44pm
srg (mail):
Noah,

Your answer to me was, "this is not throwing the "baby out with the bathwater." Information is still in the government's hands and they can still use it prevent a terrorist attack. They just can't use it to get a FISA warrant."

This is small consolation. If there is a terrorist threat, we want the information to be used to obtain more information, which may require a FISA warrant. Otherwise, the options are to forgo necessary infomration which might prevent an attack or to go around FISA a second time. Hardly a good choice.
2.10.2006 5:50pm
Kovarsky (mail):
KMAJ,

Are you equally infuriated that the 'old media' has also placed the valerie plame intel leak on the backburner, even when it is now clear that cheney is involved, while it investigates the far more institutionally important matter of what on earth is going on here?

I mean I agree with you - it is absolutely crucial that this country figure out who is and why they are leaking classified information!
2.10.2006 5:59pm
Noah Klein (mail):
Srg,

As I read the article, all the FISC presiding judges wanted was to make sure that they know if the government wants to use evidence obtained through this program. The article says that the executive failed to do this and it was this failure to notify the court of how the information was obtained that angered both presiding judges and Robertson.

Furthermore, this move by the FISC does not prevent the government from continuing to surveil the suspects. According to the theory laid out by the administration, they are able to pursue foreign intelligence without the FISC approval and thus they can continue to surveil these people without any participation by the FISC, if they deem it "necessary and appropriate" to the prosecution of this war.

Finally, a FISA warrant is not a necessity to preventing a terrorist attack. If the administration gains information about a cell or the location of an attack they can place more security at that location or detain the cell. Now the suspects will get off if they are tried, because of the warrantless wiretaps, but that's not an issue in defending the country, is it? That's an issue of prosecuting a crime, which is not important during a war, right? The Bush administration in their opinion can lock these guys up forever, including American citizens (Padilla). Do you see how these actions are counter to our ocnstitution and our beliefs or are these acts fine for prosecuting this new assymetrical warfare?

Noah
2.10.2006 6:13pm
Just an Observer:
KMAJ: Re: The WaPo article, as the reporter does not have access to what went on in the meeting, nor does he have access to facts of the actual NSA cases involved, the reporter DOES NOT have all the facts to present. Instead, he relies on an anonynous source's second hand recitation and engages in conjecture.

This is not evidence of bias, but rather the imperfect tautology that all the facts are not known. However, the Post was able to report some central and material facts, attributed to multiple sources. Which facts you have not disputed.

You call this "a non-story." I suggest that the serious attention given to the report by several law professors and by many posters here is evidence that your own news judgment is quite flawed.

Obviously, you will continue to repeat ad hominem attacks. Just by repetition you are able divert attention from substantive matters. Which, of course, is pleasing to White House operatives as that is the core of their political strategy of blowing smoke.

Meanwhile, I note that you now ignore my original question: Since you are on record here favoring a resolution of the legal merits in court, why do you not endorse Sen. Specter's request that the government submit those issues for judicial review?
2.10.2006 6:18pm
KMAJ (mail):
Kovarsky,

There are many issues about Plamegate that concern me, including the lack of investigation into the other side of the issue, i.e. nepotism, lack of Wilson signing a standard non-disclosure form, etc. I think the recent alleged Cheney revelation of authorizing Libby to 'leak' classified information (by the way the info he authorized Libby to leak in the story was NIE info, not Plame) is somewhat of a strawman, when recognizing the executive branch has the authority to declassify information, and authorizing such a leak essentially performs that function. My concern also goes to the fact that no violation of the original charge has been brought forth. I think it is dangerous when elements in the intelligence sector insert themselves in the political arena, regardless of which party is in power.

As far as Plame being on the backburner, it is still getting more coverage than the leak aspect of the NSA program and it dominated the front pages for months, the NSA leak case has not made the front page for more than a day, and they play up Tice as some sort of victim or heroic whistleblower. To use the same coverage standard, shouldn't Libby be portrayed as a heroic whistleblower exposing nepotism and failure in the CIA to adhere to normal standards ? I find it frustrating to have to read and listen to news from more than one source to attempt to get to a sound factual basis. Let me cite a new example, recently one of Saddam's generals has come out and stated the WMDs were sent to Syria and now audio tapes are beginning to bring secondary verification, that would seem to me to be a big story, but where is the coverage ? I blame Bush as much as the media for this, these documents and tapes should have been a top priority to get translated and disseminated, instead, if reports are true, only 50,000 out of over 2 million have been translated, that is simply ridiculous.
2.10.2006 6:43pm
Tom Holsinger (mail):
Kovarsky,

The essence of Yoo's war powers argument is that a President's inherent constitutional powers are whatever he can successfully exert despite opposition by one or both of the other branches. History has shown that to be correct.
"Why is it that treason never prospers? Because if it prospers, none dare call it treason!"
2.10.2006 6:54pm
Noah Klein (mail):
KMAJ:

On the Saddam issue, this the same argument that is made by Stephen Hayes with regards to the Saddam-OBL link. You both say well look at all this evidence that has been collected to demonstrate that there was a Saddam-OBL link or that Saddam did have weapons of mass destruction. Do you really think that Bush would suppress this information or not mention it if it gave greater credibility to the reasons to go to war? You have to be kidding. The Bush administration knows how to spread a message. If these examples of "evidence" that adds credibility to their case for war were true, we wouldn't be hearing of them from Stephen Hayes or you. Bush would call for a press conference or a speech in primetime and proudly demonstrate the proof. And not only that, but we would hear about this from Bush officials non-stop (remember the Libby leak to the New York Times about the nuclear program that was backed up by four administration officials including Cheney). This evidence most likely is not true and is being presented by people whose sole aim is to reinforce their own biases.

Noah
2.10.2006 6:54pm
Kovarsky (mail):
Presumably the president does not agree with your theory of "declassification," as he pledged to clean house of "whomever was involved." I doubt he would say that if he thought the declassification was legal.

I actually DID see the Syrian story that you are talking about; they asked the guy who his sources were, and he essentially said "some buddies of mine in the military." I think it's odd that you would equate a story with the level of source attribution to the NSA story, which has, o, one thousand sources.

I don't want the thread to spin off into some exchange about the media though, so I'll stop. I do want to address one thing though - the idea of equating the Plame leak with the Tice is revolting. Tice leaked classified information involved with a program the legality of which is at the very least dubious. Libby et. al "outed" nothing of similarly questionable legality.
2.10.2006 7:01pm
Kovarsky (mail):
Tom,

I understand that is Yoo's position. It is precisely that claim with which we disagree. I was just explaining why the presence or absence of legislation doesn't matter under Yoo's framework.
2.10.2006 7:03pm
Just an Observer:
Hugh Hewitt now takes his argument to the next level:

To be blunt: There may be domestic agents of al Qaeda in the U.S. who are evading comprehensive surveillance because Judge Kollar-Kotelly refuses to accept applications for FISA warrants based on intelligence garnered from warrantless NSA surveillance.


Hewitt may well be right.

I am compelled to add that the keys to solving this problem are in the hands of President Bush and AG Gonzales. All they need to do is file warrant applications with FISC that present the question of the legality of warrantless surveillance, as Hewitt says they should have done to begin with. Then, after their legal theory is vindicated in the courts, the government will be in a position to seek more legitimate warrants to surveil Al Qaeda agents domestically,

So long as the government remains a fugitive from the federal courts on this matter, our security may be the worse for it. We are in danger.

Hewitt's blog actually encourages readers to call FISA judges' chambers to lobby the issue. I find this a strange suggestion for a law professor to make, and suggest instead a lobbying campaign directed at the elected President.

Mr. President, tell it to the judge!
2.10.2006 9:23pm
Tom Holsinger (mail):
Professor Kerr,

No one here understands the implications of my posts. I address this to you.

It seems to me that the Bush adminstration is treating the judicial branch as it would a potentially dangerous foreign leader such as President Musharaf of Pakistan, i.e., it is playing spooky games on them. Among those are divide &rule (the deal with KK secret from the rest of the FISA bench), "compromising" aka "dirtying" judges by enticing them to engage in arguably improper behavior (KK's deal again) so it can improperly influence their behavior (Judge Robertson's resignation looks more like that to me now than it did earlier), and in general creating an atmosphere in which it has discretion to operate secretly (hidden from all oversight) in matters it deems important.

The judicial branch is not equipped to deal with such conduct outside the customary adversarial system.

All this flows from the Rasul decision. The judicial branch has overreached in encroaching on the executive's core functions, while lacking the usual protection of an adversarial system. I repeat that the executive branch's counterattack has begun, and the judicial branch has no idea what is coming.

Only judicial self-restraint can save it, and that is something which the judicial branch has thrown aside "in pursuit of the Devil". And the Devil has turned on it.
2.10.2006 9:43pm
Kovarsky (mail):
Orin,

Nobody UNDERSTANDS the implications of my posts, so I address this only to you.

Every night I am visited by a champagne-colored bunny rabbit. It always speaks in reverse so that I have to record the conversation then play it back in reverse on my tape recorder.

When I play it backwards on my tape recorder, it tells me that the Beatles were trying to implant subliminal messages on their albums, particularly towards the end of their ouevre, and particularly in the song "Tomorrow Never Knows" at the end of Revolver, which coincidentally also contains a looped backwards track of Lennon screaming into a microphone.

The champagne colored bunny rabbit says that he's warning me about it because he feels guilty about giving Lennon the idea. He says his name is Hazel, and that he is the brave leader of the rabbits of Watership Down, and that he needs me to tell you, Threarah, of the impending apocalypse.

You are our only hope.
2.10.2006 10:19pm
Kovarsky (mail):
tom-

sorry, i was just poking fun, honestly. i agree that secret docket-shifting, even done to correct the opacity of the executive branch, is probably inimical to the interests the court seeks to secure.

i was really just playing around. i do think that people should give others more credit for understanding what everyone is saying, though.
2.10.2006 10:28pm
Medis:
I agree with Tom to the extent that he notes the courts are ill-equipped to deal with governmental misconduct outside of the narrow confines of a case falling within their jurisdiction. I disagree about Rasul, but I don't think that is actually material to his point. However, I also think that it is a very good thing that judges are pretty much powerless outside of their jurisdictional limits--otherwise, all the rhetoric about judges as tyrants would perhaps approach the truth.

So, the bottomline is that judges cannot be asked to deal sua sponte with illegal actions by the government. Of course, they can play a role in these issues insofar as a statute, treaty, or the Constitution grants a cause of action and a party with standing can bring a case (or, alternatively, such an issue arises as a defense). But the power of judges in such circumstances is still dependant on a combination of that source of law and this third party with standing to assert the claim against the government--and that, I think, is how it ought to be.
2.10.2006 11:29pm
KMAJ (mail):
Kovarsky,

I have to respectfully disagree with your assessment of the legal question in Plame. She did not fall under the identities act, she had not been overseas in 5 years. She had been a desk jockey analyst for 6 years.

The law is the law when it comes to classified information, leaking it to the media is a violation of the law, period. There is no grey area. If one has a question/complaint, they take it to an intelligence committee member or they take it to the inspector general of the intelligence agency. Those are their only options and still be able to maintain whistleblower protection. So it is actually the reverse in effect, clear illegality with the NSA leak versus no violation with the Plame leak.

JaO,

I am have not read up on Specter's proposal, so I would not make a specific judgement on it. I will say this, I think when you get to branch power arguments, as opposed to policy arguments, party membership becomes less relevant and the motivation can be branch loyalty driven. Certainly the legislative branch would want to hold onto power it had gained through FISA, even though it was reassigned to the judicial branch, and, naturally, the executive branch is going to fight for what it believes are its constitutional power. Which is as it should be. No branch should automatically cede to the other. If accepting the Specter proposal would be ceding executive branch power to the legislative branch, they would be foolhardy to endorse it and provide the legislative branch with ammunition to use in the legal argument.
2.11.2006 12:23am
Kovarsky (mail):
Let's take it for granted that (at least some of) the FISC judges were going to have to rubber-stamp warrant apps, the underlying evidentiary admissibility of which they knew would not only would be unreviewable (it still is unreviewable, there was only a "gentleman's agreement), but unascertainable. Assume, as you many people here seem to believe, that the compromise is unacceptable. These are the options, as I see them:

(1) Resign.

(2) Go to a third party (I'm guessing that would constitute a leak and that the administration would go absolutely apeshit if they went to congress or the press).

(3) Issue a warning that is not legally enforceable.

(4) Strike a "secret" deal with the most sympathetic person on the other side.

(5) Just let it happen.


I would be fine with (2), but I think that if the people that consider any procedural discussion to constitute a national security risk want to be at all consistent, they have to abandon (2).

I am taking for granted that the answer is not just to let it happen, so that eliminates (5). (4) is gone because that's the call of the question - assuming that you don't want (4).

(3) sounds nice, but I think everybody on all sides would agree that it's not plausible.

So, it strikes me that if you don't want secret bargains, the only formalistic way around it, without "leaks", you've got to rely on judges resigning and resigning until some entity with some more appropriate measure of jurisdiction starts asking questions.
2.11.2006 12:32am
Kovarsky (mail):
KMAJ,

I don't understand the implication of her being a desk jockey. Her identity as a CIA operative/analyst/whatever was classified. Unless the President authorized the leak (which nobody will argue, because it's political suicide), if anybody other than the president leaked the information, they are not "declassifying" the information by leaking it. Whatever the legality involved, I don't know anybody seriously disputing that it was out of a desire to discredit Joseph Wilson, whether or not that discrediting was warranted or not.

Please enlighten.
2.11.2006 12:42am
Medis:
This is just an aside, but disclosing classified information is not per se illegal. Rather, US law makes certain kinds of disclosures under certain circumstances illegal.
2.11.2006 12:48am
Kovarsky (mail):
Yes, I believe there are 4 provisions in the subchapter that define the types of classified information whose disclosure is forbidden. I do believe the "Tice" leak falls under the one dealing with communications infrastructure. I think it's (c). I'd look it up but I can't remember the statute cite right now.

I can't remember what the other 3 provisions in that subchapter are, but i'm guessing that the identity of a CIA agent falls into one of them. I could be wrong.
2.11.2006 12:52am
KMAJ (mail):
Kovarsky,

Her name was not classified, Wilson himself had used her name and she had made political contributions using the Brewster cover business. In order for any crime to have occurred, she had to have served overseas within 5 years. There was no crime, though her nepotism was clearly against CIA protocol. This was politics and nothing more. She had been brought back because they thought Aldritch Ames had compromised her cover to the Russians, the agency also let her name slip to the Cubans. There is enough info out there if you want to search that has totally debunked Wilson.
2.11.2006 2:30am
Tom Holsinger (mail):
Kovarsky,

There is also JAO's point about no one FISA judge being able to see all of the elephant.

This aspect of the discussion illustrates my comment about the FISC's structural problems being such that FISA can't work as intended given this particular conflict. The drafters never envisaged America being an active zone of operations. They wrote FISA to deal with espionage in peacetime while protecting citizens from Executive over-reaching in surveillance of spies.

We need a new statute, but Congress doesn't want to have any responsibility for oversight (or responsibility most anything else). That significantly limits options in replacement legislation.

This is why I proposed that the Judicial branch be given the responsibility, and sufficient authority, to require that the Executive branch disclose to it all electronic surveillance of citizens, with or without warrants, and act as an independent repository for this information. That way the evidence of Executive abuses will be available to Congress on those rare occasions when it feels brave enough to do something about them.
2.11.2006 3:01am
Noah Klein (mail):
KMAJ,

Of course, he used her name. Her name was not classified, but her name in connection to her real occupation and employer was or the CIA wouldn't have made such a fuss. Secondly, this was not nepotism. Three things lead to Wilson's appointment.

1) Obviously, as you know, Plame suggested him, but this decision had to approved. Plame wasn't the head of her division. Also after she suggested him and her suggested was accepted, she washed her hands of the issue. This includes not briefing him after he came back.

2) He was a former state department official in both Niger and the surrounding region. If I am not mistaken, I think he was ambassador to Niger, but I wouldn't swear to it. Also he was a state department official in Iraq. Thus he had contacts in the area that he could use to gain information. Remember it was only a business trip. He did not have the time to develop relationships and know how reliable his sources were, if he didn't already have a good knowledge of the the officials in the Niger government.

3) He was already going to Niger on a business trip. Furthermore, he had friendship with important government officials that would shed light on whether the documents about a supposed yellowcake uranium deal with Iraq were true. This allowed the mission to remain a secret (always important to the CIA).

The fact that Wilson did not sign a non-diclosure agreement is not entirely rare as the Senate Intel committee's report lays out. I also I would think that on a non-legal basis you would be able to distinguish between the two leaks: one was of a potentially illegal program and the other was political payback, pure and simple. Although legally, both acts were crimes.
2.11.2006 3:14am
Kovarsky (mail):
I deliberately terminated this discussion after it veered from my point about how its difficult to see how one can complain about the absence of media focus on the NSA leak when the coverage of the Plame leak is also being under-covered. pun intended.

The point was never about the various legal strengths of the arguments, and it certainly wasn't about nepotism, it was a general point about media focus. KMAJ made a point about the length of Plame's desk duty that I didn't understand and was curious about (and genuinely appreciate him explaining), but I definitely didn't want to spin into a discussion on the merits of the investigation itself.
2.11.2006 5:12am
KMAJ (mail):
Noah,

There was no law broken, plain and simple. Why would a foggy bottom person be sent for gather intelliegence when he has absolutely no experience in the intelligence field? So he sat and sipped sweet green tea with some diplomats who also knew nothing about intelligence. He had no contacts in the intelligence community. He did not file a written report. The Intel Committee stated his report strengthened, not weakened, the case.

I have to laugh about the 'remain a secret being important', yet they don't have him sign a non-disclosure form. I find those defending Wilson, after how he has been discredited, to be slightly uninformed. While there is no doubt there may have been political payback involved, it was not criminal. Fitzgerald did not return any indictments for crimes. And what do you call Wilson's actions, if not political ? He flat out lied, and got caught in the process (i.e. he saw the forged documents).

When the two people who wrote the 1982 Intelligence Identities Protection Act say the law was not broken, I would say that is pretty good authority. Nor was there any violation of the Espionage Act of 1917 (Title 18, United States Code, Section 793). The only two applicable laws.
2.11.2006 6:01am
Just an Observer:
KMAJ: I am have not read up on Specter's proposal, so I would not make a specific judgement on it.

It is important to distinguish between what Specter is proposing now, and what he proposed to Gonzales on Monday.

Right now the senator is working on legislation that somehow would require the legal issues to be presented to the FISA courts. I don't know what mechanism that would entail, and I am withholding judgment on such legislation myself until I see it. That is not what I am asking you about.

Specter is doing this because Gonazales brushed off his plea that the government voluntarily submit a test case under existing law. That was what my question referred to.

We do know the contours of what such a case might be -- the scenario has been explained by Prof. Kerr at the top of this thread and by Hewitt on his linked site. I summarized it for you above. I will do so again:

The government could apply for a FISA warrant based explicitly on information derived from the unwarranted NSA surveillance program. The FISC court would rule on its legality, and if the government lost that ruling it would be appealed (like In Re Sealed Case was) to the FISCR court. Rulings of that appellate court, in turn, are reviewable by SCOTUS.

I think you ought to be able to comment on that scenario, since you are on record here favoring resolution of the legal merits in the courts. Have you abandoned your previous position, since it seems incompatible with current White House talking points?
2.11.2006 9:52am
Just an Observer:
Tom Holsinger: There is also JAO's point about no one FISA judge being able to see all of the elephant.

I don't think that was my point anywhere. I have assumed, perhaps incorrectly, that FISA judges are cleared to read each other's cases, just as District Court judges and everyone else can read each other's cases.

The situation with Judge Kollar-Kotelly's arrangement with the government was different. I was not in a case, but in an ex parte meeting. The procedures they agreed to ex parte were not disclosed to the other judges until recently, as I understand the reports.
2.11.2006 10:01am
Just an Observer:
Kovarsky, Noah:

I point out that when we engage KMAJ and other commenters on unrelated topics such as Valerie Plame, we are accommodating their tactic: changing the subject from the merits of the NSA surveillance, and generally blowing more smoke. You are, of course, free to comment as you wish.

I also allow myself to by distracted sometimes by KMAJ's other favorite tactic, which is the ad hominem attack. I do so because challenging that tactic directly exposes the attacker's lack of credibility. I do try to be brief, although I sometimes fail.

Generally, when a propagandist's comments are not germane, my personal preference is to ignore them if possible -- perhaps simply noting their irrelevance.

In all such matters, I respectfully observe -- as a guest here myself -- that the goal of regular commenters here should be to keep on topic as much as possible. I can see by some of your comments that you share this objective. I do not mean to lecture, and apologize in advance if these remarks seem out of line.

JaO
2.11.2006 10:39am
Bruce Hayden (mail) (www):
Jack asked how Congress could impose what appears to be a 4th Amdt. requirement on International surveilance by, for example, the NSA. A response was that it was procedural, akin in that way to the UCMJ. As many know here, this debate has been ongoing for while on this and other NSA related threads at Volokh.com. (and pardon, if I didn't phrase the argument correctly).

But one alternative might be that the UCMJ has a de minimis effect on the operation of the military. It is only really at the fringes, that it has any effect. FISA, on the other hand, if the Administration would strictly conform to its wording, would have, and already apparently does have, a major affect on international surveilance. The effect is two fold. First, it takes a lot of manpower to conform to the extent they are already conforming (and would arguably take much more if fully complied with), and second, it seriously slows down the intelligence community's ability to nimbly and rapidly respond to incoming intelligence.

So, maybe the argument should be (and maybe being made by the Administration) that Congress can impose procedural limits on the Executive's conduct of a war under the UCMJ because it has minimal effect, whereas Congress overstepped with FISA (or now, it would be overstepping), becase it doesn't have de minimis effect, but a major effect.
2.11.2006 10:40am
Medis:
Bruce,

The problem with your "de minimis" argument is that the "effect" of any procedure or substantive limit is not inherent, but rather relative. And what it is relative to is the will of those who wish to avoid that procedure or substantive limit. So, any provision in the UCMJ--or any provision in US law--could suddenly have a "major effect" on the actions of the Administration as soon as the Administration asserts as desire to regularly violate that provision of US law.

The bottomline is that this entire species of arguments--basically amounting to the proposition that Congress cannot constitutionally pass laws that the President does not like to follow--rests on the proposition that Congress can't actually pass laws that would bind the President in any way. Rather, on this view Congress basically can give its "ideas" to the President in the form of laws, but the President is free to ignore those "ideas"/laws if he think they are not good "ideas"/laws.

Indeed, this is precisely how Gonzales, Cheney, et al talk about the possibility of Congress amending FISA to deal with any problems in the process. They say they will be happy to listen to any "ideas" from Congress, with the clear subtext being that they will do whatever they want anyway.

And that, of course, is basically arguing that the President is indeed above the law. KMAJ and others resist this forumulation--likely because they know it makes for an unfavorable soundbite. But if they were being intellectually honest, they would admit that is really what they want, at least during war: a President with all the powers of a monarch, who need not take the advice of his Parliament.

Of course, there are at least two nagging problems with this vision. One is that "war" as they define it may well be a more or less permanent condition, at least for the conceivable future, and therefore this is a model of government that would apply for the indefinite future.

Second, this model of government flies directly in the face of the Constitution, and indeed the explicit intent of the Founders in writing the Constitution. So, they generally avoid talking about the actual Constitution of the United States, but instead use words like "unconstitutional" which mean merely "inconsistent with my vision of how our goverment should work."

And they definitely want to avoid having a court review their sense of "unconstitutional", for the simple reason that a court might actually think it is worth taking a look at the Constitution itself.
2.11.2006 12:02pm
Tom Holsinger (mail):
Consider that the criminal justice model simply cannot apply to war. FISA's underlying assumptions attempt to do that - this is more basic than the intent of Congress to protect uninvolved citizens from the abuses of warrantless searches.

FISA envisages ultimate criminal prosecution of some of the persons subject to electronic surveillance, and tries to square the government's need to conduct surveillance with the due process rights of those ultimately subject to criminal prosecution.

But enemies in war are not criminally prosecuted - they are supposed to be killed in the field or captured and held captive for the duration, then released. And in this war the enemies will persist in attacking us until they are dead - the war's duration will be as long as any of them are alive and in the field. Our choices with captives are to keep them captive until they die, or execute them.

There is just no way that FISA can work in this situation.
2.11.2006 12:45pm
Kovarsky (mail):
JaO,

I am certainly aware of the potential for the subject to be changed. You'll notice that I expressly cut off my discussion of the legality of the Plame investigation when it started to approach the underlying value of the merits rather than the point I was making - it seems inconsistent to demand a frenzied media focus on the NSA whistleblower without a corresponding demand in the Plame case.

As for the personal attacks, well, as I pointed out, it's a hazard of pseudonymous and geographically disbursed posting. I actually don't mind the personal attacks, because it quickly signals who is to be engaged constructively, and who isn't, and the attacks themselves generally amount to little more than "you're so demonstrably incapable of understanding because you don't agree with precisely what I say."

Even the other day, I had JJ threatening me with slander! I didn't point it out then, but it was libel, not slander (that's more my territory than national security law), and that it's impossible to slander a pseudonym that can't be connected with a real space identity. I didn't say anything then though, and JJ kept on, and eventually Orin just kicked him off. Online norms operate more slowly that real-space ones, but eventually the people that behave like that get their come uppin's.

Although I've never really had an issue with KMAJ specifically. For whatever reasons I particularly enjoy my exchanges with him/her.
2.11.2006 12:54pm
Kovarsky (mail):
JaO,

I'm not sure how your proposal would work out. The scenario you are talking about would just seem to me to confirm what everybody has already admitted - the evidence obtained from the NSA program is inadmissible in court because it does not satisfy the probable cause requirement. I'm not sure how, in your scenario, that court could rule on the authority of the President to conduct such a program.
2.11.2006 1:01pm
Just an Observer:
Kovarsky,

The test-case scenario does not involve just applying for a warrant instead of doing the warrantless surveillance in the first place, which is what I think you are referring to.

Rather, new warrant applications would be sought, justified on the basis of information admittedly derived from prior, warrantless surveillance under the NSA program. The subjects of the warrant applications might well be different from the parties surveilled in the first place.

The government would assert straightforwardly that such information had been properly obtained because the existing NSA program is completely lawful, as Bush and Gonzales claim publicly.

If the court disagreed -- as Judge Kollar-Kotelly apparently indicated she might if she had to rule on the matter -- then it would deny the new warrants. The government's theory that the prior surveillance was indeed lawful, based on all the arguments outlined in the "white paper," would become the basis for appeal of such denial.

The tricky part about that scenaro is that the game does seem rigged in the government's favor at the FISC level. According to me reading of FISA, it seems that if the FISC courts did rule in favor of the government, those approvals would not be reviewable by FISCR. Only rulings against the government are reviewed.

Even with that advantage, DOJ has been afraid to risk an adverse ruling on its theory -- hence the reason for the arrangement to avoid review in the first place.

Bush apologists frequently cite dicta from the 2002 Sealed Case opinion in the FISCR as support for the DOJ's legal theory. Obviously, DOJ lawyers don't believe such propaganda, and expect that the FISA courts would rule against them.

And, as Prof. Hewitt points out, there may actually be dangerous Al Qaeda operatives who ought to be legally surveilled, but cannot be without vindication of the President's theory in court. The same problem might taint criminal prosecutions of terrorists.

Mr. President, tell it to the judge!
2.11.2006 1:42pm
Kovarsky (mail):
JaO,

I understand. The impediment to your scenario, as you see it, is simply a failure of the administration to cooperate.

I think the scenario is ALSO problematic because it would allow the government to cherry-pick the test content, wheras I'm guessing Specter's legislation won't let them load the dice in quite the same way.

I don't want to pass judgment on the constitutionality of Specter's legislation without seeing it first.

L
2.11.2006 1:57pm
Just an Observer:
Kovarsky,

Yes, the government would also have the tactical advantage to pick one or more cases with facts most favorable to it. That home-field advantage, I think, just goes with the territory.

But from what we know, the controversy is not nearly so much fact-driven as it is law-driven. The DOJ has essentially stipulated the facts in its "white paper." It is the legal questions that we care about.

What is important, as far as getting resolution of our festering constitutional crisis, is that the significant questions of law are raised. If the administration does want vindication of its theory, it would have to pick one or more cases that raise those questions.

I don't want to pass judgment on Specter's legislation yet, either. That is why I am interested in the above scenario under existing law, which is what I think Specter suggested to Gonzales at the hearing.

As Prof. Hewitt points out, such a test case could also have happened a long time ago. Where he goes astray, I think, is his latest assertion that "Judge Kollar-Kotelly refuses to accept applications for FISA warrants based on intelligence garnered from warrantless NSA surveillance."

As far as we all know, no such applications have ever been denied -- because none were ever made. Nothing is stopping the DOJ lawyers from having their day in court. They just have to show up and make the case.
2.11.2006 2:30pm
Just an Observer:
Tom Holsinger: FISA envisages ultimate criminal prosecution of some of the persons subject to electronic surveillance, and tries to square the government's need to conduct surveillance with the due process rights of those ultimately subject to criminal prosecution.

That really distorts reality. FISA was written specifically to govern intelligence-gathering, not criminal prosecution. It was amended in the USA-PATRIOT act to allow greater application of intelligence to criminal cases -- breaking down the so-called wall -- but intelligence remains the primary purpose.
2.11.2006 2:45pm
Medis:
JaO,

I also find Tom's claims puzzling. I understand the perspective of those who note that FISA was written primarily to deal with Cold War needs for foreign intelligence procedures, and also with a certain model of electronic communications in mind. Of course, FISA has since been amended and updated, most notably in the USA-PATRIOT Act, but it might well require even more significant modifications going forward.

But this idea that FISA is about criminal law enforcement is exactly backward. Indeed, the point was always to create a two-track system with criminal enforcement surveillance under Title III and foreign intelligence surveillance under FISA, and with a "wall" between these two tracks.

I guess I understand the politics behind this claim--claiming FISA is about criminal enforcement provides a handy talking point in favor of the President completely bypassing FISA, rather than seeking to amend and update FISA. But it is yet one more example of how the people making these arguments essentially don't care about basing their arguments on the truth.

Again, to use my favorite new word, I guess the idea that FISA is about criminal enforcement is sufficiently "truthy" that it serves their purposes.
2.11.2006 3:06pm
KMAJ (mail):
JaO,

Please correct me if my thoughts on a test case would be wrong. Would applying for a test case be seen, under law, as agreeing that the program may be outside executive authority ? As such, would that not be disadvantageous to the executive branch in any future conflicts between branches, one that elevates the judicial branch and expands the legislative branch to challenge any executive branch action ? If that is the case, wouldn't it seem foolhardy for the executive branch to agree to such a test case ? Unless this was set up as a mechanism that could be used to challenge all co-equal branches, it would seem this avenue would be a constraint and create an imbalance, which 'might' raise questions on its constitutionality.

I have to address one of your constant insinuations about supporting moarchical / dictatorial powers. I can't speak for anyone else, my position in this case rests solely on the foreign affairs aspect of war time powers based upon the assumed truthfulness that one end of the communications is outside the US. I do not support warrantless surveillance of purely domestic communications, and I do not think that has ever been factual part of this debate, though the media has misled quite a bit in this regard with their constant misuse of the terms 'domestic' and 'wiretap'. Any claims of 'warrantless domestic wiretaps' are clearly speculation without evidentiary support. With the record number of FISA warrants applied for, why would one necessarily assume those warrants are using FISA as intended in the domestic arena ? So when you make such a point in your debating style, you are not dealing in factual representation, but presenting an emotional argument that basically boils down to "See, they support dictatorship' and the negative connotations that goes with it. If that is your choice of tactic, I have no problem with it, it is a common and frequent tactic in debate, and is usually persuasive with like-minded individuals, aka preaching to the choir.

I stand on the position that the legislative branch has extended its authority to unprecedented levels since the Vietnam and Watergate era by taking advantage of the fact that the executive branch was seriously weakened by the breach of trust due to the abuses of Kennedy, LBJ and Nixon on the domestic front. I have always taken Madison's concerns about the legislative branch seriously, this current issue, in my opinion, only bears out his admonition that the legislative branch will seek 'to absorb all power into its vortex'.

The executive authority Bush is expounding comes nowhere near that exhibited and used by past presidents, yet so many are willing to buy in to the exaggeration that his claim is unprecedented. Andrew Jackson outright ignored a Supreme Court decision, Lincoln suspended habeus corpus, Wilson and FDR ordered ALL incoming and outgoing communications be intercepted (not just enemy related), FDR ordered Japanese citizens imprisoned at Manzanar, etc. What is going on in this case does not even remotely approach the executive authority exercised in that list.

What is risked, without thorough investigation in to the implications, is to permanently alter the balance of power between the three branches. If Specter's proposed legislation would permanently alter that balance, then I contend it will be unconstitutional on its face and open to challenge on those grounds.
2.11.2006 3:09pm
Just an Observer:
KMAJ: Please correct me if my thoughts on a test case would be wrong. Would applying for a test case be seen, under law, as agreeing that the program may be outside executive authority ?I>

If your position is that the president is above the law and should never have to make his case in court, then I suppose it might be yielding some intellectual ground to show up there.

But is that actually the position you are now trying to defend?

I am confused, because in a prior exchange you said clearly that you personally hoped the legal issues would be resolved in SCOTUS. So again I ask if your position has changed.
2.11.2006 3:32pm
Just an Observer:
Sorry, those italics were supposed to end after the first quoted paragraph.
2.11.2006 3:33pm
Kovarsky (mail):
KMAJ,

I think that we've covered the domestic/international distinction ad nauseum. The focus on whether we call it "domestic" or "international" is misleading on both fronts.

This involves communications, generally speaking, from the united states to another country. Calling it "domestic" is misleading to the extent that it implies the program deals with calls with both initiating and terminal nodes in the states. Calling it "international" is also misleading because it implies that one node of the communique is not the states. Sure, calling the "call" international is more accurate than calling it domestic, because it is between two countries. But the term "domestic" or "international" is supposed to modify "program," not "call." And to the extent that - at least sometimes - the node being tapped is in the United States, the term "domestic" is entirely appropriate.

So to say that the term "domestic" is misleading is to ignore the point that the term "international" is equally misleading. Perhaps the solution would be for the media to use a very precise but cumbersome formulation of the modifier, but that's hardly in the media's nature.
2.11.2006 3:50pm
Just an Observer:



KMAJ: "I can't speak for anyone else, my position in this case rests solely on the foreign affairs aspect of war time powers based upon the assumed truthfulness that one end of the communications is outside the US. I do not support warrantless surveillance of purely domestic communications, and I do not think that has ever been factual part of this debate, though the media has misled quite a bit in this regard with their constant misuse of the terms 'domestic' and 'wiretap'. "

The distinction made between domestic-to-foreign and domestic-to-domestic communications is semantic and political, not legal. The definitions in FISA make no exceptions for domestic-to-foreign calls. (That is not to say such an exception could not be written.)

Interestingly, both Sens. Biden and Kyl observed at the hearing that there was nothing in the admistration's legal rationale making the distinction that only domestic-to-foreign communications might be intercepted without warrant. Biden thought that not such a good thing, Kyl apparently thought the opposite.

And FWIW, Gonzales several times refused to rule out whether unwarranted domestic-to-domestic surveillance might be going on. He did say it is not within the scope of the particular program that the president has confirmed, and indicated that decision was based on a political judgment about how the public might perceive it.
2.11.2006 3:59pm
KMAJ (mail):
JaO,

There you go again, insinuating my position with claims of 'above the law'. In fact, what you are doing is turning a foundational legal tenet on its head, that of innocent until proven guilty. Your premise is putting the executive branch in the position of having to prove they are innocent. The burden of proof lays on the those claiming guilt, it is their responsibility to bring forth and make the case. Therefor, it is not the executive branch's responsibility to bring the case to SCOTUS, thus there is no contradiction in my position on hoping SCOTUS will determine the case. The case reaching SCOTUS must be achieved through proper legal channels, not making up some contrivance to get it there.
2.11.2006 4:15pm
KMAJ (mail):
Kovarsky,

I agree, the domestic/international designation is open to debate. Technological advances have so blurred the distinction it is almost a futile argument. I also agree that the media will not adjust, hence we are stuck with trying to decipher actual fact from insinuation. I think, to the detriment of the public, this issue has devolved in to a jurisdictional dispute or separation of powers, if you will. While there are ideological/party politics still involved, it has now become embroiled in constitutional issues of branch authority. Until Sealed Case, FISA had never been directly challenged on constitutional grounds, and Sealed Case was limited in scope in its challenge. It had never come in conflict with the actual operational aspects of the prosecution of war. Sealed Case did open the question of constitutionality without providing an answer. FISC did not see fit to appeal the FISC Court of Review ruling, so the question of constitutionality was not fleshed out more. Whether SCOTUS would have addressed the constitutional issue, had it been appealed, is open to speculation.
2.11.2006 4:31pm
Kovarsky (mail):
<i>

KMAJ,

This is going to be a "what are you talking about" moment. The "innocent until proven guilty" argument applies to a defendant in criminal proceeding. I don't even really know where to start:

(1) that a defendant is inncoent until proven guilty does not mean that the government would bear the burden of proof on every issue (affirmative defense)

(2) i don't really know why i bothered talking about (1), becuase this is not a criminal proceeding, it is an executive inquiry into the legality of the administration's program. no legally binding "presumption" exists in favor of the administration.

(3) it is not the executive's duty to bring the case to scotus (although i think it odd that you seem to believe there's no obligation that the constitionality of the program be audited by a neutral body), but that has about 0 to do with the "innocent until proven guilty" bromide.

would you mind stating precisely again, what your position on the case is? I take as an implication from the above post, where you rebut the inconsistency, that you would be OK with the courts adjudicating the issue, should jurisdictional and standing requirements be satisfied. in other words, however far the "inherent authority" argument goes, the executive authority's inherency does not include evading and ignoring proper review by the courts....
2.11.2006 4:35pm
Kovarsky (mail):
excuse me, a congressional inquiry.
2.11.2006 4:36pm
Kovarsky (mail):
KMAJ,

Why is it to the public's detriment that this has "devolved" into a separation of powers dispute - particularly since I don't think there's all that much disagreement about the appropriate balance between liberty and counter-terrorism?

I'll be up front - I think people say it's a "shame" because that moves the administration away from it's most powerful rhetorical defense - "If someone's talking to a member of al qaeda, I think we should know why." And it would perhaps be a "shame" to move away from the strongest rhetorical defense if that defense presented ANYTHING APPROACHING the actual political fault lines, but I think we ALL agree that if someone is calling al qaeda, we should listen.
2.11.2006 4:41pm
KMAJ (mail):
JaO,

The reason the designation 'foreign' is important is because it shifts the balance in the argument over authority. Hence, it is advantageous to the legislative branch to minimize the 'foreign' aspect and emphasize the 'domestic'. Vice versa, maximizing the 'foreign' aspect is advantageous to the executive branch. Youngstown's decision was determined by the weight of the issue being 'domestic', which purview clearly favors the legislative branch, absent any legislation that would cede authority to the executive branch. When it comes to foreign affairs, the balance shifts to the primacy of the executive branch, and when war becomes part of the equation, that balance further shifts towards the executive branch, because the CIC powers are then enhanced and added to the peacetime executive branch powers.

If the legislative branch does not like the executive branch interpretation, it is their responsibility to pursue any constitutional legal options available to them or allow the checks and balances of electoral politics render a decision.
2.11.2006 4:49pm
Just an Observer:

KMAJ,

There is nothing improper about bringing such a test case, so long as the facts are true.

Is it your belief that, as a matter of fact, there never has been a situation where the warrantless NSA surveillance has produced information that could support a warrant useful for further investigation?

For example, the NSA surveillance of an OBL lieutentant overseas talking to John Doe reveals probable cause that he and Jane Smith -- both in the United States -- are agents of Al Qaeda and up to no good. Should we not wish to get warrants to surveil them both domestically?

You now seem to claim the President should not ever have to prove his legal theory in court unless he is charged with a crime.

I am not asking whether his theory can escape judicial scrutiny. I am asking if you think it should, when he can voluntarily instruct his lawyers to make the move in court to vindicate it.

The reason I ask this is that you clearly said here you personally hope the legal questions are resolved in SCOTUS. It now appears that what you really meant was that the issues should be resolved in SCOTUS only as a last resort, if the President somehow is compelled to submit his case there.
2.11.2006 4:51pm
Just an Observer:
KMAJ: Youngstown's decision was determined by the weight of the issue being 'domestic', which purview clearly favors the legislative branch, absent any legislation that would cede authority to the executive branch.

That is a very creative interpretation of Youngstown, not supported by the facts.

The effects in the Youngstown case were domestic (the seizure of steel mills producing materiel) in the same sense that the effects of the NSA program (surveillance of suspected citizens in this country) is domestic.

But Truman's claim was that such seizure was authorized under his CinC powers while the nation was involved in a far bloodier foreign war than we have now. Truman lost the case.
2.11.2006 5:07pm
KMAJ (mail):
Kovarksy,

My to the detriment comment refers more to the vitriol that the debate has created. That vitriol does not serve the public well and distracts needed attention from the WoT.

The claim of innocent until proven guilty was not intended as a criminal analogy, but a refernce on having to prove justification or not. It is the responsibility of, and incumbent on, those who believe such interpretation is incorrect to pursue it through proper legal channels and procedures, or allow the checks and balances of the electoral process and public opinion play their role. It appears that Specter may be trying to find a course that will allow the legislative branch to get the issue before SCOTUS. The question it leaves open is whether the executive branch will agree to such a course, and would they be required to ? I think it likely the answer to both is no, unless public opinion is brought to bear. And it is there that the legislative branch is at a disadvantage, because the executive branch enjoys the 'bully pulpit' of the presidency, and on the NSA issue, he currently has the public on his side.
2.11.2006 5:07pm
Just an Observer:
KMAJ: It appears that Specter may be trying to find a course that will allow the legislative branch to get the issue before SCOTUS. The question it leaves open is whether the executive branch will agree to such a course, and would they be required to ?

Yes those are open questions. But they are not the questions I asked you.

Rather, I am referring to the situation under existing law. The President has the opportunity there voluntarily to make his case in court and vindicate, as he has had all along.

There really is a very simple way to resolve all the arguments about what is legal. If the President does not think he is above the law and does think the law is on his side, he can tell it to the judge. He obviously is afraid to do that.
2.11.2006 5:17pm
Kovarsky (mail):
KMAJ,

I never estimated the constitutionality of Specter's legislation. If he formulates a piece of legislation that can constitutionally get the program in front of an article III, in light of article III's case and controversy requirements, whatever on earth inherent authority means anymore - whatever it means - I am assuming you are not implying that it entitles the executive to a right of "consent" once those justiciability requirements are met.

Also, if you are not making a criminal analogy, I don't see how your argumentative presumption really makes any practical sense - are you just saying that if a government body is "doing stuff," the evidentiary burden resides with the skeptical branch just because it happens to be the skeptic? In fact, we routinely toggle evidentiary burdens in other contexts in order to force the entity in control of the evidence to make the case - and I don't think you want to go down that road here.
2.11.2006 5:18pm
KMAJ (mail):
JaO,

I find your interpretation to be the creative one on Youngstown. That was a totally domestic case, there was no 'foreign' end to that dispute other than Truman claiming War Powers extending over domestic policy. Quite clearly there is a foreign angle in the NSA surveillance, Youngstown also did not deal with intelligence gathering. You distort when you deny the foreign aspect of the surveillance. You also presnt a slanted picture when you fail to note that Youngstown did not deal with possble North Korean sleeper cells. Other than the Jackson Concurrnce Tripartite categorization, the relevance of Youngstown is limited. Curtiss-Wright and Sealed Case are more directly relevant to the issues involved.
2.11.2006 5:19pm
KMAJ (mail):
Kovarsky,

What I am saying is the the executive branch, minus binding legal authority that forces them to a court, is free to decide to try their case in the court of public opinion. This is exactly what the Founding Fathers envisioned, it is empowerment of the people. All branches are subservient to the people. So the burden is on Specter and/or Congress to find some binding legal authority.

JaO,

I respectfully reject your argument of the court being the only way to resolve the legality question, and the assertion that refusal to do so is a sign of weakness. He can take it to the people, for the people are the real power, exactly as intended by the Founders. I think it is a sign of weakness on the legislative branch and on critics for not being willing to put this forth before the ultimate authority under our Constitution, the people. Make your case before the people, and in the next election, they will reveal their decision.
2.11.2006 5:33pm
Just an Observer:
KMAJ,

If the case ever does get to SCOTUS, the relevance of Youngstown to the current conflict will be what the court thinks it is. That relevance was stated quite clearly in the Hamdi plurality.

But then, that will only happen if and when a case gets there. Which is why the President (and his cheerleaders, such as yourself) are afraid to take the merits to court now.
2.11.2006 5:36pm
Just an Observer:
KMAJ: I respectfully reject your argument of the court being the only way to resolve the legality question, and the assertion that refusal to do so is a sign of weakness. He can take it to the people, for the people are the real power, exactly as intended by the Founders.

Finally, a straight answer. You actually don't favor resolution of the matter in court, as you once pretended here.

Rather, you believe the President may do whatever he can get away with politically.

It would be hard to write a better definition of "above the law."
2.11.2006 5:45pm
KMAJ (mail):
JaO,

Straw man argument when you claim 'afraid'. It would be no different than if I claim that you are afraid to take your case to the people. Who is supposed to be the ultimate authority in the country ? I agree, SCOTUS will decide the relevance of Youngstown, but if it gets to SCOTUS is the operative phrase. There are only two ways it gets there, finding binding legal authority or pressure from the court of public opinion, and right now the president has public opinion behind him.

You had to add your unfounded ad hominem 'cheerleader' to your reply, I wonder why ? I support executive branch authority on this issue, regardless of party in office, because intelligence gathering is a fundamental incidence of war and is critical to its prosecution, where time, speed, efficiency and effectiveness are crucial, any bureaucratic intrusion is detrimental and dangerous.
2.11.2006 5:46pm
KMAJ (mail):
JaO,

Nice twisting, obviously you assume the people should have no power, talk about dictatorship. If there is no binding legal authority to bring this to court, there is no above the law to claim. The ultimate law is the people themselves, not elitist lawyers and judges who want to lord over the people. If there is binding legal standing to bring this before SCOTUS, do so, if not, then it is not within the law, ergo, your assertion of above the law is fraudulent on its face. It is so easy to forget that the foundation of our Constitution, our system of government and our rule of law is 'we the people'.
2.11.2006 6:01pm
Kovarsky (mail):
KMAJ,

If your argument reduces that the constitution contemplates trial in the court of public opinion, I'm not sure why the request to the administration to have someone confidentially review the legality of their program, and have them refuse to do so creating the inference that the program is not legal, is somehow a violation of this fictitious evidentiary burden.
2.11.2006 6:04pm
Just an Observer:
KMAJ: I agree, SCOTUS will decide the relevance of Youngstown, but if it gets to SCOTUS is the operative phrase. There are only two ways it gets there, finding binding legal authority or pressure from the court of public opinion, and right now the president has public opinion behind him.

Enough said. We now know where you stand.

Mr. President, tell it to the judge.
2.11.2006 6:05pm
KMAJ (mail):
Kovarsky,

I am saying the executive branch 'may' have sound legal standing not to subject the program to confidential review, he has already subjected it to review of the OLC and DoJ. No where in the Constitution is there any other assertion for the executive must submit to or seek review elsewhere without binding legal authority requiring he do so. I am not saying that binding legal authority may not exist, but I have yet to see it presented in argument. What I have seen is it proferred as opinion by a segment of the people as the right thing to do. The people can decide if that review is legitimate or not. That is the ultimate check and final arbiter on the elected branches of our government.
2.11.2006 6:25pm
Bruce Hayden (mail) (www):
I can't help but get the feeling that the push for judicial review of this matter is somewhat akin to a number of other areas these days where the left (I am not saying that this suggestion for NSA program review is all on the left) utilizes the Judiciary to advance its agenda, after having lost both the Executive and Legislative branches to the Republicans.

I don't think then that it is surprising that the Administration seems happier to try its case in the court of public opinion than before a court of law. And, maybe one reason for this is the worry that the courts might lose track of any balancing here, as suggested by the responses to my suggestion that FISA is apparently (according to the Administration) currently significantly interfering with intelligence gathering, with the real possibility that it would drastically do this if the current plan didn't pass muster in the courts.
2.11.2006 8:18pm
Bruce Hayden (mail) (www):
The problem with your "de minimis" argument is that the "effect" of any procedure or substantive limit is not inherent, but rather relative. And what it is relative to is the will of those who wish to avoid that procedure or substantive limit. So, any provision in the UCMJ--or any provision in US law--could suddenly have a "major effect" on the actions of the Administration as soon as the Administration asserts as desire to regularly violate that provision of US law.

The bottomline is that this entire species of arguments--basically amounting to the proposition that Congress cannot constitutionally pass laws that the President does not like to follow--rests on the proposition that Congress can't actually pass laws that would bind the President in any way. Rather, on this view Congress basically can give its "ideas" to the President in the form of laws, but the President is free to ignore those "ideas"/laws if he think they are not good "ideas"/laws.
Actually, I would suggest just the opposite, that Congress can bind the President in his conduct as CinC, when its impact is relatively minor in comparision to its benefit, but that when its impact is major in comparison with its benefits, then it it does encroach on his power.

I have yet to hear any way in which the UCMJ is more than a minor inconvenience to the President in his conduct of a war. Yes, maybe it might in the future, but I think it hard to envision, and, as it doesn't right now, it is moot to my argument.

On the other hand, if you are to believe the Administration, FISA, as written, would seriously impact signals gathering and their attempt to prevent another 9/11 type terrorist attack, while, as yet, there is no documented harm from their actions. And even if there were, say, from using some of the information gathered by the NSA program to prosecute terrorists caught in the U.S., these are few and far between. I suspect that a mere handful of terrorists and alleged terrorists have any such claim.

So, back to my proposed balancing test - that legislation that would act to significantly impact the President's Constitutional powers with little benefit be overriden, but when the legislation has minor impact, but major benefit, then it not be. And, yes, that would mean that even the UCMJ might fall prey to this some day, but not, I suspect, in the near future.
2.11.2006 8:34pm
Just an Observer:
KMAJ,

Well, here in the Court of Public Opinion, I have standing to say there is a serious question of credibility.

Bush's credibility is obviously impaired because he won't voluntarily submit to objective judgment from the bench. His lawyers make pretended "legal" arguments everywhere except the place they might matter.

And your credibility is impaired because you once claimed to favor a decision in court. But now it turns out you mean ... only if something compels the President to go there.
2.11.2006 8:34pm
Tom Holsinger (mail):
JAO,

FISA's warrant requirement inhibits intelligence gathering. In no way does it facilitate intelligence gathering. Rather the warrant requirement exists to protect the rights of criminal accused and prevent abuses of warrantless searches. The manner in which FISA permits the issuance of warrants was intended to inhibit intelligence gathering far less reduce than the normal search warrant process on intelligence gathering.

Everyone,

Specter's proposal to force the Executive to litigate issues is unconsitutional on its face. There was a 9th Circuit ruling on a comparable issue, holding a statute requiring the Executive to negotiate some issue with foreign governments unconstitional as a breach of separation of powers.

Keep one thing foremost in mind with any legislative proposal by Senator Specter - it's always about him, especially when it originated with him as opposed to his introducing a bill on behalf of someone else. His objective is always re-election (his tendencies in this regard are an order of magnitude greater than for almost all the other Senators).

Specter is shameless about this. IMO he is "better in the rush" (towards the nearest camera) than anyone else in the current Senate.

P.S. - don't forget the campaign contributions.

JAO again,

You err in making facile assumptions such as:
"If the President does not think he is above the law and does think the law is on his side, he can tell it to the judge. He obviously is afraid to do that."

People in high office rarely act so as to serve a single purpose. AG Gonzales' recent testimony to the Senate Judiciary Committee clearly served many different, often overlapping purposes. You see one part of an elephant and think it is the whole elephant. You are not recognizing various cues, ranging from obvious to subtle, concerning such matters.

It may be emotionally convenient for you to make such assumptions, but consider that the more blatantly partisan they are, the more likely you are to be wrong.
2.11.2006 8:42pm
Just an Observer:
Bruce Hayden: I can't help but get the feeling that the push for judicial review of this matter is somewhat akin to a number of other areas these days where the left (I am not saying that this suggestion for NSA program review is all on the left) utilizes the Judiciary to advance its agenda, after having lost both the Executive and Legislative branches to the Republicans.

This ain't Roe v Wade or Lawrence v Texas. Not by a long shot.

The current controversy does not seem at all akin to such issues. In this case, Congress has acted. The question is whether its statutes have been violated, and possibly whether they might be unconstitutional as applied.

The only "agenda" being advanced is enforcement of existing law. That is hardly judicial activism or result-oriented jurisprudence. One might more easily apply those labels to the case for such surveillance as made by advocates such as Judge Posner.

The sides are not split between "left" and "right," or between Democrats and Republicans. Nor are the legal issues related to executive power catalogued easily on a jurisprudential spectrum such as liberal/conservative or activist/originalist. (Read the seminal Hamdi case. Scalia's dissent, joined by Stevens, was the least favorable to Bush.)

I am not on the "left," nor am I a Democrat. I strongly supported the nominations of Roberts and Alito, and opposed that of Miers. But I cannot support Bush on the general issue of executive power or the specific matter of warrantless NSA surveillance.

And as you may have noticed, I am a strong proponent of judicial review here. More than anything else, to me this is all about the rule of law.
2.11.2006 9:07pm
Just an Observer:
Tom Holsinger: FISA's warrant requirement inhibits intelligence gathering. In no way does it facilitate intelligence gathering. Rather the warrant requirement exists to protect the rights of criminal accused and prevent abuses of warrantless searches.

FISA's warrant requirements were written when FISA could not even be used readily in criminal cases. That was what the old "wall" was all about. The "wall" has largely been dismantled, but the warrant requirements were not rewritten to conform to the criminal model.

I do agree that the primary purpose of FISA warrants was to "prevent abuses of warrantless searches." Similarly, prohibitions against torture were written to prevent abuses in interrogations. Balancing such interests is part of what legislatures do, and approving warrants and adjudicating violations of anti-torture laws is part of what judges do.

Tom Holsinger: Specter's proposal to force the Executive to litigate issues is unconsitutional on its face.

I don't see how you could know this, since none of us have seen Specter's legislative proposal. It is still being drafted.

I will add that I am skeptical myself, since I have a hard time with a concept of Congress requiring a court to issue advisory opinions. But it may turn out that the actual legislation is not structured anything like that. I am in wait-and-see mode on the question.

Meanwhile, my remarks in this thread about Specter's challenge, rebuffed by Gonzales, to seek judicial review have nothing to do with the senator's legislative proposal. Rather, they relate to a potential case under existing law. The contours of such a case have been described in this thread by Professors Kerr and Hewitt.

Tom Holsinger: You err in making facile assumptions such as:

"If the President does not think he is above the law and does think the law is on his side, he can tell it to the judge. He obviously is afraid to do that."


It may be emotionally convenient for you to make such assumptions, but consider that the more blatantly partisan they are, the more likely you are to be wrong.


I will admit to a certain rhetorical flourish in that quote. But for me (not a Democrat) it is not about partisanship. It's about the rule of law and following the Constitution.
2.11.2006 9:40pm
Bruce Hayden (mail) (www):
Observer,

I agree that there are criticisms on both the right and the left concerning the NSA program. However, they do seem a lot more shrill on the left, and, not surprisingly, from Congress as opposed to the people (remember, at the bottom, this is a question of whether Congress can limit the Executive in this way - so, not surprisingly, many in Congress who are not known for their stand in this area are questioning the Administration).

But then you state that all you want is that the law be followed. But that begs the question of who gets to determine that. Yes, many believe that is the role of the Judiciary, hence this discussion. But, then, we get into the question we have debated ad nauseum, why should the Administration defer to the determination of such by 5 unelected Justices, or, worse, one unelected judge, esp. when they seem to have a majority of the people behind them.

As I keep pointing out, the Administration is faced with the choice of following the letter of FISA or protecting us from terrorism. The President has put the protection against another 9/11 type terrorist attack over strict compliance with the wording of FISA, and justified it based on added power from the AUMF plus his inherant Article II power.

What must be remembered is that the FISC, et al. don't have the ultimate responsibility to protect the American people from terrorism. The President does. And, because they don't have accountability here, and he does, I don't think that it is too surprising that he questions judicial review, possibly from a fear that they would get lost in the trees of totally hypothetical invasion of rights and lose track of the forest and that by all indications (so far), of the thousands and thousands of intercepts, only a handful, at best, most likely have had any potential impact on any innocent person's rights, while the program has thwarted multiple terrorist plots.
2.11.2006 9:54pm
Bruce Hayden (mail) (www):
Observer said:
I do agree that the primary purpose of FISA warrants was to "prevent abuses of warrantless searches." Similarly, prohibitions against torture were written to prevent abuses in interrogations. Balancing such interests is part of what legislatures do, and approving warrants and adjudicating violations of anti-torture laws is part of what judges do.
But that is part of the point - the balancing that was appropriate back when FISA was enacted is very different today. The threat is very different, and so is the technology. What was a very minor check on Executive power in the the 1970s when surveiling the Soviet Union, is now a major impediment in surveiling al Qaeda calls over fiber optic links.

Besides, that Congress enacts certain legislation that restricts the President's Article II power is not indicia that they balanced threats against costs, but rather, that, arguably, they saw a weakness in the Executive (in a presidency weakened by Watergate, etc.) and pounced, in order to increase their own power.
2.11.2006 10:01pm
Just an Observer:
Bruce Hayden: As I keep pointing out, the Administration is faced with the choice of following the letter of FISA or protecting us from terrorism.

Nice repetition of the Karl Rove line. Now who is being partisan?

Not only is it partisan, it happens not to be true.

Quite obviously, both sides in Congress are willing to amend FISA to accommodate such surveillance. And this is four years after 9/11, when Bush's popularity is much reduced. As another poster (John Lederer, IIRC) once observed, in 2001 Congress would have been willing to pass an anti-terrorism law requiring all citizens to walk down the street whistling Yankee Doodle.

But rather than secure legal approval, Bush opted to go extralegal. He made a unilateral power grab that I think violated his constitutional duty to execute the law.

Bruce Hayden: But, then, we get into the question we have debated ad nauseum, why should the Administration defer to the determination of such by 5 unelected Justices, or, worse, one unelected judge, esp. when they seem to have a majority of the people behind them.

Yet another way of saying the President is above the law. That point for me is not debatable at all. He is not.

If bush's legal theory is correct, let the court vindicate it. If the court decides against him, he must abide by its ruling.

Do you now claim Bush has the legal authority to defy such a ruling? Do you reject Marbury and the whole principle of judicial review? How far do you want to push this?
2.11.2006 10:21pm
Tom Holsinger (mail):
JAO,

I'm sure you are equally eager to enforce existing laws about all vehicles having buggy whips. We managed to get rid of all of those in California but I'm sure some state somewhere still has one.

This is NOT merely about "enforcing existing law". FISA simply cannot be literally enforced even if everyone agrees that it should be, and they don't. Furthermore some interpretations of FISA would make it unconstitutional as applied. IMO it is facially unconstitutional in at least one clause, and absent a severance clause someplace in FISA (comments invited), the whole thing is gone.
2.11.2006 10:23pm
Just an Observer:
Bruce Hayden: But that is part of the point - the balancing that was appropriate back when FISA was enacted is very different today. The threat is very different, and so is the technology.

Now would seem a good time to write your elected representatives and suggest amending the law. Most members of Congress seem amenable to such rebalancing and updating to fit current circumstances.
2.11.2006 10:26pm
Just an Observer:
Tom Holsinger: FISA simply cannot be literally enforced even if everyone agrees that it should be, and they don't. Furthermore some interpretations of FISA would make it unconstitutional as applied. IMO it is facially unconstitutional in at least one clause, and absent a severance clause someplace in FISA (comments invited), the whole thing is gone.

If and when those arguments are made to the Supreme Court, perhaps they will agree with you. I think not. But in any case, the court's opinion is what would govern -- not mine, not yours, not the President's.
2.11.2006 10:31pm
Noah Klein (mail):
KMAJ,

Intelligence is about the gathering of information. Wilson went to gather the information over whether the Niger government had a deal with Iraq to sell yellowcake uranium. He talked to the president and the people in the highest levels of the Nigerian government at the time and they told him what they did. The fact that he wasn't an intel officer does not change the fact that he was unique position to gather the information that he was sent to gather.

And no he provide some very important information about the potential of a Iraq-Niger uranium deal. Aside from the guarrantees of the top officials in the Nigerian government. He also discovered that the Nigerian uranium mines were controlled by the French, which made it completely unlikely that the Nigerian government made a deal with Iraq.

I don't see why this is so hard for you to differentiate.

Noah
2.11.2006 10:41pm
Medis:
Bruce,

I see no support in the Constitution for your "balancing" test, but anyway, who gets to apply your test? In other wordfs, who gets to decide if a law of Congress has appropriately balanced the benefits and negative impact of a law?

And if you say the President gets to decide, then that is once again putting the President above the law, because that renders laws nothing more than ideas he has to consider. Which, of course, is what he wants.

Tom,

I don't think Congress could require the government to initiate a case. But if it could give a third party standing to challenge the program (say, an expressive organization with substantial international communications), then the government would be in the position of a defendant, not plaintiff. Of course, it could refuse to defend the case, but then that would result in a default judgment. And I don't think that is unconstitutional.
2.11.2006 10:50pm
Bruce Hayden (mail) (www):

Yet another way of saying the President is above the law. That point for me is not debatable at all. He is not.
No. Not at all. Rather, he may be above the interpretation of the law by another, competing, branch of government.
If bush's legal theory is correct, let the court vindicate it. If the court decides against him, he must abide by its ruling.
In other words, defer to another branch of government in the interpretation of a statute, when that other branch of government has no obligation to protect the American people from terrorism, and the President does.
Do you now claim Bush has the legal authority to defy such a ruling? Do you reject Marbury and the whole principle of judicial review? How far do you want to push this?
I don't know if he does or does not. But he would not be the first president to object to the Judiciary assuming that they can interpret the Constitution for the Executive.

Marbury is a two edged sword here. Yes, it it some 200 years old, but it is also the base for a lot of the power wielded by the Judicary, and if it is effectively overturned (by the President defying the Judiciary, and getting away with it), the it would strike a major blow against Judicial power. And, this is one reason that I don't think that the Supreme Court would call his bluff in this matter - the chance that he would defy them and get away with it.

The check on the President's power is really what it has always been: public approval, elections, and impeachment. For reasons I have stated (and we have argued over) in previous threads here, I don't see him losing in any of those venues.
2.11.2006 11:09pm
Tom Holsinger (mail):
JAO,

You have much more faith in Congress than I do. I believe they run away screaming from responsibility, and can provide umpteen examples.

The Supreme Court's opinion concerning statutes and the Constitution are not binding on the other branches. The other branches almost always defer to the Court in such matters, but almost is not always, and particularly not concerning separation of powers disputes. You believe the legal world is the only one. It isn't.

Each branch is the judge of its core powers in separation of powers disputes with the other branches.

Medis,

That's it exactly.
"I don't think Congress could require the government to initiate a case. But if it could give a third party standing to challenge the program (say, an expressive organization with substantial international communications), then the government would be in the position of a defendant, not plaintiff. Of course, it could refuse to defend the case, but then that would result in a default judgment. And I don't think that is unconstitutional."

FISA is not adversarial. Doing what you and JAO seem to want requires that it be made adversarial. The subjects of searches should be given standing to quash warrantless searches as well as ones done pursuant to FISA warrants, which would of course require that they be notified of the searches and surveillance. I can even think of one expressive organization with substantial international communications immediately - it is commonly known as Al Qaeda.

I wish you two the best of luck in this endeavor.
2.11.2006 11:16pm
Bruce Hayden (mail) (www):
Medis,

I see nothing in the Constitution saying that he isn't above the law either. But then, I see nothing in it that mandates that he defer to the Judicary's definition of what is the law either. Of course, most, including almost all lawyers, of course, accept that the Judicary does define such. But the fact that most lawyers believe something doesn't necessarily make it so (after all, they have pretty much all taken the same Con law classes using pretty much the same or very similar Con law texts, and taken the same MBE, requiring the same answers on these issues).

The implied assumption of many of your posts is exactly that, that the Judiciary is the definitive definer of what the laws are, rather than just one more co-equal branch of government. That would, IMHO, put the Judiciary above the law, and not the Executive.
2.11.2006 11:16pm
Tom Holsinger (mail):
Bruce and Medis,

Check out the "Cunningham brief" here. The National Review Corner piece on it by Andrew McCarthy states (excerpt):
IS THE PRESIDENT “ABOVE THE LAW”? I GUESS IT DEPENDS ON WHO THE PRESIDENT IS [Andy McCarthy]

Several former Clinton administration officials are among the group of “scholars of constitutional law and former government officials” who last week submitted a letter to Congress – posted on the New York Review of Books website – asserting that the Bush administration had “fail[ed] to identify any plausible legal authority” for the NSA program that does not comply with the warrant procedure mandated by Congress in FISA (the Foreign Intelligence Surveillance Act of 1978). One of those former Clinton administration officials is Walter Dellinger.

But in 1994, Dellinger was singing a different tune. As the Assistant Attorney General in the Clinton Justice Department’s Office of Legal Counsel, Dellinger explained in a written opinion to the White House, that: “The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency.”

The opinion is excerpted at some length in a letter being submitted to the Judiciary Committee by my friend Bryan Cunningham, a terrific lawyer in Colorado who worked in both the Clinton and Bush administrations (in the NSA, CIA and DOJ). That letter is now available at the website of Bryan’s lawfirm, www.morgancunningham.net.

The letter demonstrates that settled legal principles, developed by the federal courts since the Nation’s founding and cited by administrations of both political parties, most assuredly including the Clinton administration, emphasize that the President of the United States has plenary authority in the matter of foreign intelligence collection (and foreign affairs generally). Bryan also illustrates that separation-of-powers principles obligate the President to decline to enforce (i.e., to ignore) congressional statutes that encroach on or purport to limit the executive’s constitutional powers – just as FISA does. This, too, is a position the Justice Department has aggressively defended under both Republican and Democrat administrations.
2.11.2006 11:24pm
Bruce Hayden (mail) (www):
Observer said:
Now would seem a good time to write your elected representatives and suggest amending the law. Most members of Congress seem amenable to such rebalancing and updating to fit current circumstances.
I somewhat agree here. I think the Administration's hesitation in this in the past has been that it might give away too many operational details about what it was doing to surveil international calls to/from terrorists. But that is pretty much a dead issue now, and it may be time to make the changes that, absent that concern, should have been made right after 9/11.

But then, I am not sure that the Administration truly understood that quickly after 9/11, how much strict compliance with the wording of FISA would obstruct its surveilance of international calls to/from foreign terrorism suspects.

I think what would satisfy me would be to essentially eliminate the distinction between 50 USC 1801(f)(1) and (f)(2), and protect against overreaching there through Congressional oversight limited to the Intelligence Committees of the two Houses. One way of doing the later might be to require that statistics be kept of how many foreign and international calls are intercepted, and in the case where the surveilance results in criminal prosecution, provide the details of those, presumably, few cases (similar, though limited to those Committees, to what is required by the PATRIOT Act). The former would still protect against purely domestic surveilance (i.e. both parties in the U.S.)
2.11.2006 11:27pm
Noah Klein (mail):
KMAJ, Tom and Bruce,

I don't see why you have such a problem with the constitution as its written. One branch legislates, one branch executes the law, and one branch interprets the law. This is the system we step up. There are checks and balances which prevents one branch overstepping, yet this does not mean that one brach can do the other' job. In one sentence, you decry the legislature for overstepping its bounds and then you say well the judiciary can't do its job to determine if that's so because who are they to say what the law says. You may not like the fact that judges are unelected and that's fine. If you want to change that fact, there's a process (constitutional amendment), but that does not mean that the executive should do the judiciary's job.

Noah
2.11.2006 11:38pm
Medis:
Tom,

As an aside, the Cunningham letter has been posted here before, and several of us, including me, have commented on it.

Anyway, I wasn't proposing that FISA order applications become adversarial. I was suggesting that Congress could make this orderless program subject to judicial review, and explaining one constitutional way to do so.

Bruce,

You say: "I see nothing in the Constitution saying that he isn't above the law either."

It is in Article II, Section 3: "he shall take care that the laws be faithfully executed."

You also say: "But then, I see nothing in it that mandates that he defer to the Judicary's definition of what is the law either. . . . The implied assumption of many of your posts is exactly that, that the Judiciary is the definitive definer of what the laws are, rather than just one more co-equal branch of government. That would, IMHO, put the Judiciary above the law, and not the Executive."

That is in Article III, Section 1: "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

Of course, the courts as the final authority on the meaning of law does not put it above the other branches. They still cannot make the laws, which is the job of Congress, nor can they execute the laws, which is the President's job.

What you want is for the President to be able to make his own laws if he doesn't like the laws of Congress, and to decide for himself what the laws means no matter what the Supreme Court says. That would not make him co-equal--it would make him the holder of all three kinds of power.
2.11.2006 11:44pm
Noah Klein (mail):
Bruce and Tom,

It is the judiciary that determines what the law is. The president does interpret the law to the extent that it helps him/her enforce the law, but he is not hte final arbitrator (That's for SCOTUS). I'm sorry you don't like the system the way it's set up and if you want to change it that's fine, but I think the rest of us like it. The president enforce the law the way the judiciary says, but the system is able to account for this by Congress checking the executive or the people rejecting that formula. But what you and KMAJ are advocating is completely anarchic.

There's a reason why we don't want the enforcer of the law determining what it is. This allows for the executive to change the law to what he or she thinks it should be and who's going to say that they are wrong if it is there job to make such an assessment. The people might, but that four or maybe less years later. This why we set up an independent body approved of by both branches to make this determination. I do not see why you this such a foreign concept to you. We learn it all. I accepted and I pretty sure that a vast majority of the U.S. accepts. Why don't you accept it? And if you do, why is judicial review bad then.

Noah
2.11.2006 11:53pm
Medis:
Noah,

What is odd to me is that they seem to think that if another branch could ever say "no" in any meaningful way to anything that the President wants to do, it means that other branch is acting unconstitutionally.

How they think that makes the President merely "coequal", rather than a supreme leader, is beyond me.
2.11.2006 11:53pm
Noah Klein (mail):
Medis,

I am in the same boat with you there. It is an odd way of interpreting our system of government.

Noah
2.11.2006 11:58pm
Bruce Hayden (mail) (www):
Medis,

Faithfully executing the laws does not necessarily mean executing them as defined by another branch. Rather, I would suggest, that it means executing them as the Executive branch determines them to be.

And the same argument essentially in response to your Article III point - your implied assumption that having the judical power means that the Judiciary has the final determination of the meanings of laws for the Executive.

I should note that Cunningham has a more nuanced approach here, in that he quotes Clinton era lawyers who suggest that the President is free to interpret laws until the Supreme Court makes a determination, and then it is bound by such.

Of course, the Supreme Court has not ruled here, and, more likely never will, and so, even under Cunningham's approach, the Executive is not bound, and may never be here. He also points out that these very same Clinton era lawyers who are opposing the NSA survielance suggested to Mr. Clinton that he had a Constitutional duty to essentially ignore laws that were unconstitutional through overreaching by the Legislature (until overruled by the Judiciary).
2.12.2006 12:07am
Bruce Hayden (mail) (www):
Cunningham did bring up something indirectly that I think bears discussion. The general assumption of those who believe that the NSA program is illegal because it presumably violates the wording of FISA, is that FISA would be ruled supreme here under Jackson't third zone in Youngstown (because Congress spoke on the issue). But is that really viable? Rather Jackson's third zone does not really take into account how much the Congressional action encroaches on the Executive, and blythly assumes that the fact that Congress has spoken is definitive. But that would, by necessity, put Congress above the President, even in places where he has been granted sole, or almost sole, power and responsibility by the Constitution. Rather, I would contend that the fact that the Constitution gave the President certain core powers and responsibilities should be of much greater concern in the balancing implicit in this category, than the mere fact that Congress spoke. Without that, what would be the limit on Congress' ability to seize power from the Executive?
2.12.2006 12:17am
Just an Observer:
I have to say it is disconcerting to see such sentiment here that the President could and would defy both Congress and the Supreme Court, and that key provisions of the Constitution are disposable. It is interesting to see how far the fringe extends.

I would worry more if didn't take a deep breath and remember this is just a blog, and that Scott McClellan dare not say anything like that from the White House podium. Not to mention the preposterous image of Paul Clement saying such things to Chief Justice Roberts and company.

And for all the hubris about how "the people" are behind the President, his standing is not so very high right now. His thin margin of support on this particular matter would evaporate quite quickly if the Supreme Court ruled against him.

If Bush weren't so afraid of the courts, his lawyers wouldn't spend so much effort avoiding them.
2.12.2006 12:17am
Noah Klein (mail):
Bruce,

If the executive can be the final source for the meaning of the law then... Why do we pay the Justices all that money then? Why do we give them such a nice and expensive office? Why did we give them so much staff?

We could have set up the same system as the British where the ultimate source for the determing the law is the aristocracy with the King at the top, but we didn't. We wanted to set up a system where the executive and judicial functions of our government would be independent of each other. You are advocating something different. That is fine, but that's not the construction that is currently established.

I do believe that the system is constituted the way the Clinton lawyers described. The executive does have to interpret the law to enforce it, but the judiciary is the final authority. Yet some in this thread, including yourself, have been opposed to the judiciary performing its job and conducting a review of this program. That is not the system described by the Clinton lawyers and if you are trying to compare your view of things to theirs you are way off.

Why is it a problem for the judiciary to do its job in this and say what the law is?

Noah
2.12.2006 12:20am
Tom Holsinger (mail):
Bruce,

But what happens when the over-reaching is done by Judicial branch violation of separation of powers concerning the Executive? Congress can stop the Judicial branch from infringing on its powers by removing the judges from office. A President can't do that.

A President has only two options when the Judicial branch infringes on his powers - acquiescence or defiance. Sure he can ask Congress to impeach the Supreme Court, but what happens when they don't? He tells the Congress to "Impeach them or impeach me", but Congress fails to do either.

IMO what we need here is retention elections for the Supreme Court. Let the People decide.

Cunningham makes a case that each branch has a duty to defend its core consitutitonal functions against encroachment by the other branches. That I agree with.
2.12.2006 12:20am
Tom Holsinger (mail):
JAO,

Looks to me like the Bush adminstration has successfully compromised the FISC and likes the status quo.

You assume without evidence that they have violated the law here. I certainly suspect they have violated some interpretations of FISA, but IMO those interpretations are unconstitutional as applied. I'm more concerned about things which haven't surfaced yet.
2.12.2006 12:24am
Bruce Hayden (mail) (www):
Let me add to my last point that Jackson didn't articulate that he was implicitly taking into account that the seizure of the steel mills was essentially domestic, and as such, does not fall directly under one of the core powers and responsibilities of the Executive. Rather, this was an area traditionally (and, still to this date), primarily controlled by the Legislature.

So, maybe a better way of looking at Jackson't third category would be to first look to see how central the area is to the Executive's central power, authority, and responsibility, and utilize that as the metric by which they viewed the potential encroachment by the Legislative branch. The seizure of the steel mills would fall nicely into that scheme, with little deference made to the Executive in this primarily domestic action, whereas the NSA surveilance program at issue would end up much closer to core Executive power and authority, and, thus, be subject to a much higher level of deference than was the seizure of the steel mills.
2.12.2006 12:26am
Medis:
Bruce,

You say: "Faithfully executing the laws does not necessarily mean executing them as defined by another branch. Rather, I would suggest, that it means executing them as the Executive branch determines them to be.

And the same argument essentially in response to your Article III point - your implied assumption that having the judical power means that the Judiciary has the final determination of the meanings of laws for the Executive."

Article III grants to the Supreme Court the judicial power OF THE UNITED STATES. So yes, the President has no power under the Constitution to reinterpret laws already interpreted by the Supreme Court, because the entire judicial power of the United States went to the Supreme Court.

You also say: "But that would, by necessity, put Congress above the President, even in places where he has been granted sole, or almost sole, power and responsibility by the Constitution."

If the Constitution did not grant the necessary power to Congress to pass the law, then the law in question would indeed be unconstitutional. But that is why this entire line of analysis should start with Article I, not Article II. In short, if Article I grants Congress the power to legislate in an area, then it has not granted the President "sole power".

And that is why these arguments are so disconnected from the Constitution. The Constitution does NOT grant sole power over military matters to the President, even in war. And we know that precisely because the Constitution enumerates the many ways in which Congress can make military laws and laws of war.

Finally, you say: "Without that, what would be the limit on Congress' ability to seize power from the Executive?"

Congress cannot remove the President from his position as first General and Admiral of the Armed Forces. But like any other commanding officer, the President cannot issue unlawful orders. And those are the limits of Congress's ability to seize power from the President--and the limits of the President's ability to seize power from the President.
2.12.2006 12:32am
Medis:
Bruce,

That is why Dames &Moore and Hamdi are important--they dispell the notion that Youngstown applies only to domestic affairs. But Cunningham inexplicably fails to discuss those cases.
2.12.2006 12:37am
Medis:
Sorry--the last word two posts up should be "Congress".
2.12.2006 12:38am
Just an Observer:
Tom Holsinger: You assume without evidence that they have violated the law here. I certainly suspect they have violated some interpretations of FISA, but IMO those interpretations are unconstitutional as applied.

And I remind you, once again, that it is ultimately for the courts to decide.

I don't begrudge the President the right to argue his interpretation, even though I disagree with it. I do deny that his interpretation trumps that of the Supreme Court.
2.12.2006 12:45am
Bruce Hayden (mail) (www):
Look, I am not really suggesting that the President ignore the Supreme Court. I don't think it that likely that it will ever get to that place. But to some extent, this is little different from when President Lincoln suspended Habeas Corpus.

The problem is, the Administration apparently believes that this program is essential to preventing another 9/11 type terrorist attack and they believe that security from foreign threats, like those it is trying to defend against with the NSA program, is probably the most important obligation of a president. The question that they would face if thwarted by the Supreme Court is whether to abide by that decision, opening the U.S. up to terrorist attacks, or to defy the Supreme Court, and do what they think is right in protecting the country.

And faced with that decision, it is not certain that they would be willing to endanger American lives in order to obey the Supreme Court. They probably would, but not necessarily, which is where I am coming from.

Note, I am not advocating that they ignore the Supreme Court.

In any case, one reason that their reluctance to guarantee conformity with Supreme Court decisions on this subject is tactical. Being seen as potentially willing to defy the Supreme Court, should that mean shutting down essential security programs (like the NSA program at issue), and, therefore, endangering the American people, is advantageous when dealing with the Judiciary. Why? On the one hand, it significantly increases the risk for the Judiciary, if they should find against the Administration. And, secondly, that such a position by the Administration may be beneficial if/when the Supreme Court finally does rule on the NSA program, to convincing that Court that this is a core Executive power and responsibility - and therefore either that FISA doesn't apply, that AUMF overrides it sufficiently, or that FISA, as written, impermissibly interferes with his Article II powers. After all, it is quite possible that if he doesn't back down, and the Court rules against him, and he then ignores the Court, that he will get away with it. And that would hurt the Judiciary more than it would hurt him.
2.12.2006 12:53am
Medis:
Tom,

The Constitution does not give the President and the Supreme Court a direct remedy for abuses against each other. As you note, the President cannot remove judges. Conversely, the Supreme Court cannot remove the President. In each case, they need the aid of Congress.

Personally, I think that structure is a good idea. But if you disagree, you'll need an Amendment.
2.12.2006 12:55am
Just an Observer:
Bruce Hayden: The seizure of the steel mills would fall nicely into that scheme, with little deference made to the Executive in this primarily domestic action, whereas the NSA surveilance program at issue would end up much closer to core Executive power and authority, and, thus, be subject to a much higher level of deference than was the seizure of the steel mills.

What makes surveillance of citizens in the United States a "core" executive power?
2.12.2006 12:56am
Medis:
Bruce,

When exactly has the Administration itself--rather than, say, pro-Administration partisans in the blogosophere--suggested it would defy the Supreme Court over this issue?
2.12.2006 12:58am
Bruce Hayden (mail) (www):
But in this case, it is more than merely being the Commander in Chief. It also impairs his ability to protect our national security, under his plenary responsibility to "preserve, protect, and defend the Constitution".

So, could he order that the UCMJ be ignored, if it became a substantial impediment in protecting our national security? Arguably yes. But, at present, it is a de minimis imposition on that responsibility of his, and, thus, in what I consider a more realistic balancing test than many suggest is required by Jackson's third category, the UCMJ is Constitutional.
2.12.2006 1:05am
Noah Klein (mail):
Bruce,

This is arguing for rule of the U.S. by presidential fiat. "Well, this constitutional provision saying that the president should only be in office for four years hurts our war effort, so I'm just going to ignore that." Come on. The president has to follow the law. He can challenge and say it violates his power, but he has to follow.

Noah
2.12.2006 1:10am
KMAJ (mail):
JaO,

You certainly have your right to your opinion as part of the court of public opinion, but your opinion carries no more weight than anyone elses. By whose standard is a judicial review objective ? By the public standard ? I would say you actually have to separate standards involved, but that the standard of the people is the higher one. Why is it you fear the people having the right to make that decision ? I find that an odd position to take. Isn't this a government of 'We the people' ?

You can twist my words all you want, but the people have the highest authority in our system of government, over all three branches. Are you saying they don't ? I put forward that you do not want the people to have any say because you don't think you will get the decision you desire from the highest authority, so you seek it elsewhere.
2.12.2006 1:10am
Bruce Hayden (mail) (www):
Medis,

I am unaware of any statements by the Administration to that effect. And I will be the first to admit that I have been one of the more vocal proponents of the possibility that the Administration might not obey the Supreme Court. I have never suggested (that I can remember) that it was probable, but merely that it was possible, and that the Supreme Court would be aware of that possibility (And, if it did appear that I did suggest that it was probable, I appologize - I don't think it likely).
2.12.2006 1:12am
Noah Klein (mail):
KMAJ,

The people made a determination on this already. They elected people to Congress. Those people in Congress passed a law. That law is still on the books. The president isn't following that law. He says he has justification from another law passed. Congress never mentioned any justification when they passed that later law. So now, there two choices. Congress can explicitly say that the president does not have this power or the president can justify that his reading of the law is correct by going to court and proving it. Why is it inappropriate for the judiciary to review this case?

Noah
2.12.2006 1:17am
Bruce Hayden (mail) (www):
This is arguing for rule of the U.S. by presidential fiat. "Well, this constitutional provision saying that the president should only be in office for four years hurts our war effort, so I'm just going to ignore that." Come on. The president has to follow the law. He can challenge and say it violates his power, but he has to follow.
Let's back off from my suggestion of the President possibly defying the Supreme Court, and instead look at the standard that Cunningham pointed out was expoused by those Clinton era attorneys, that until the Supreme Court has spoken, the Executive is free to interpret the laws as it essentially sees fit. And, indeed, is obligated to, if an alternative interpretation would work to increase the power of the Legislative branch at the expense of the Executive. The Supreme Court hasn't spoken on the issue of the NSA surveilance, and, thus, the Executive is free to utilize its own interpretation of the laws involved.
2.12.2006 1:18am
Just an Observer:
KMAJ,

Well, "the people" have power over Congress, which enacted FISA. We, the people, also can exert our will via Article V to amend the Constitution and grant exclusive powers to the President you wish he had. If the Supreme Court ruled against the President in this case, and "the people" didn't agree, the mechanism of Article V can be used to undo that decision, as well.

But just because every President is elected by "the people" does not grant him authority to defy the court's rulings as he sees fit.
2.12.2006 1:23am
Noah Klein (mail):
Bruce,

This is true. I do think that since this program was done with various attempts to shield it from judicial and congressional review that it was inappropriate to make such a new interpretation without telling Congress or trying to get the judiciary to affirm his interpretation. I also think, like the CRS, the president failed to fully inform the relevant committees in the manner prescribed by the law. It is precisely this attempt to make this decision, which departs greatly from what the Congress and the judiciary thought was still in place, in secret that most troubles me. The attitude of the executive appears like he feels the president should make, enforce and interpret the law.

Noah
2.12.2006 1:27am
Bruce Hayden (mail) (www):
The people made a determination on this already. They elected people to Congress. Those people in Congress passed a law. That law is still on the books. The president isn't following that law. He says he has justification from another law passed. Congress never mentioned any justification when they passed that later law. So now, there two choices. Congress can explicitly say that the president does not have this power or the president can justify that his reading of the law is correct by going to court and proving it. Why is it inappropriate for the judiciary to review this case?
I might agree that the dispute may need to be adjudicated in the courts, but strenuously disagree with your two choices. The law at issue was passed in view of a different enemy in a time of different technology. In view of that, it probably wasn't unconstitutional at that time. The problem is that the foe has changed, the type of warfare we are involved in (or then envisioned) has changed, and the technology has changed. Back then, it wasn't an impediment on the President's ability to protect the American people. Today it is.

Whatever Congress says on the matter is irrelevant. There is no provision anywhere that I know of for one Congress to explain what another Congress enacted, and that the President is violating that law. And, indeed, the only thing that a Congress can do to affect the interpretation of any law that it itself passes is through Congressional reports and preambles, such as found in the AUMF. For the most part, a law says what it says, and what Congress says it means after the fact is quite irrelevant.

Rather, the remedy, well established, is that someone with standing sue the President, et al., and establish that his interpretation is wrong. It is not his responsibility to prove that his interpretation is right, but theirs to prove that his is wrong.
2.12.2006 1:28am
Just an Observer:
Bruce Hayden: The Supreme Court hasn't spoken on the issue of the NSA surveilance, and, thus, the Executive is free to utilize its own interpretation of the laws involved.

As of today, that much seems to be the case de facto. The question is how to resolve the resulting crisis.

If you now acknowledge the ultimate supremacy of the court, and you have faith in the merits of the President's legal claims, why not move expeditiously to have the court vindicate them?
2.12.2006 1:30am
Medis:
Bruce,

You say: "Let's back off from my suggestion of the President possibly defying the Supreme Court, and instead look at the standard that Cunningham pointed out was expoused by those Clinton era attorneys, that until the Supreme Court has spoken, the Executive is free to interpret the laws as it essentially sees fit."

Actually, as Cunnigham notes on page 14, Walter Dellinger "wisely caution[ed] that the President should decline to enforce a statute he or she considers unconstitutional only where he or she believes the Supreme Court would agree."
2.12.2006 1:31am
Bruce Hayden (mail) (www):
I do think that since this program was done with various attempts to shield it from judicial and congressional review that it was inappropriate to make such a new interpretation without telling Congress or trying to get the judiciary to affirm his interpretation. I also think, like the CRS, the president failed to fully inform the relevant committees in the manner prescribed by the law. It is precisely this attempt to make this decision, which departs greatly from what the Congress and the judiciary thought was still in place, in secret that most troubles me. The attitude of the executive appears like he feels the president should make, enforce and interpret the law.
It isn't his job to get the judiciary to affirm his interpretation. And I think that your definition of informing Congress is almost misleading. He did inform Congress - just not the entire Judiciary Committee, because, apparently, of well founded worries about security. But members of both parties in both houses were apparently duly informed of it on a regular basis.

Getting back to the Judiciary. How the heck do you expect him to get a judicial determination all on his own? Where is the case or controversy? You are essentially asking for an advisory opinion, something that federal courts are pretty much forbidden from giving.

And yes, I do believe that the Executive has the power, and in this case, the obligation, to interpret the laws, absent a final adjudication of an actual case or controversy with parties with actual standing, to the contrary. Until the Judiciary has spoken with finality on this issue, the Executive's interpretation of the laws is the only one that matters.
2.12.2006 1:40am
Tom Holsinger (mail):
JAO asked,
"What makes surveillance of citizens in the United States a "core" executive power?"

Change "core" to "inherent" and you have United States of America, Appellee, v. Truong Dinh Hung, Appellant; United States of America, Appellee, v. Ronald Louis Humphrey, Appellant, 629 Fed.2d 908 (4th Cir. 1980):
"We hold that the warrantless searches and surveillance did not violate the Fourth Amendment, that the espionage statutes were properly and constitutionally applied to this case, that the defendants were not denied compulsory process, and that the district court did not err in any of its evidentiary rulings.
...
The defendants raise a substantial challenge to their convictions by urging that the surveillance conducted by the FBI violated the Fourth Amendment and that all the evidence uncovered through that surveillance must con-sequently be suppressed. As has been stated, the gov-ernment did not seek a warrant for the eavesdropping on Truong's phone conversations or the bugging of his apartment. Instead, it relied upon a "foreign intelligence" exception to the Fourth Amendment's warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs. On this basis, the FBI sought and received approval for the surveillance from the President's delegate, the Attorney General. This approval alone, according to the government, is constitutionally sufficient to authorize foreign intelligence surveillance such as the surveillance of Truong.
...
We agree with the district court that the Executive Branch need not always obtain a warrant for for-eign intelligence surveillance. Although the Supreme Court has never decided the issue which is presented to us, it formulated the analytical approach which we em-ploy here in an analogous case, United States v. United States District Court (Keith), 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972). In Keith, the executive had conducted warrantless domestic security surveillance. The Court posited two inquiries to guide the Fourth Amendment determination of whether a warrant is required:
If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. We must also ask whether a warrant would unduly frustrate the efforts of Government to protect itself from acts of sub-version and overthrow directed against it.

407 U.S. at 315, 92 S. Ct. at 2135. Balancing individual privacy and government needs, the Supreme Court con-cluded that the executive must seek a warrant before it undertakes domestic security surveillance.

For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant re-quirement would, following Keith, "unduly frustrate" the President in carrying out his foreign affairs responsibili-ties. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed, and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence initiatives, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.
...
Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs. See First National Bank v. Banco Nacional de Cuba, 406 U.S. 759, 765-68, 92 S. Ct. 1808, 1812-1814, 32 L. Ed. 2d 466 (1972); Oet-jen v. Central Leather Co., 246 U.S. 297, 302, 38 S. Ct. 309, 310, 62 L. Ed. 726 (1918). The President and his deputies are charged by the constitution with the conduct of the foreign policy of the United States in times of war and peace. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 57 S. Ct. 216, 81 L. Ed. 255 (1936). Just as the separation of powers in Keith forced the executive to recognize a judicial role when the Presi-dent conducts domestic security surveillance, 407 U.S. at 316-18, 92 S. Ct. at 2136-2137, so the separation of powers requires us to acknowledge the principal respon-sibility of the President for foreign affairs and concomi-tantly for foreign intelligence surveillance.

In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitu-tional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance."
2.12.2006 1:43am
Medis:
Bruce,

As we have noted, the President could get a judicial determination simply by submitting a FISA application using information from this program.
2.12.2006 1:43am
Bruce Hayden (mail) (www):
Observer,

Whether I accept the supremecy of the Judiciary or not is really not relevant. At present, as was pointed out by Medis (in his question to me), the Administration has not said, as far as I know, that it would defy the Judiciary if the later ruled against them in this matter, so, we can probably assume (but not guarantee) that they would comply.
2.12.2006 1:44am
Medis:
Tom,

Exactly--"inherent" does not mean "exclusive", and it is the latter that Cunningham et al would need to be true.
2.12.2006 1:45am
Noah Klein (mail):
Bruce,

"I might agree that the dispute may need to be adjudicated in the courts, but strenuously disagree with your two choices. The law at issue was passed in view of a different enemy in a time of different technology. In view of that, it probably wasn't unconstitutional at that time."

The constitutionality of law does not change. If it constitutional at one point, it is always constitutional. Even if the enemy changes and even if the president is authorized to go to war. The wisdom of the law may change with time, but not the authority to make such a law. Supreme Courts may differ on the constitutionality of certain laws, but a law that is constitutional even if the times have changed.

Also, Congress's opinion now should not affect the interpretation of a law, beyond the passing of a law which spells out specifically what this current Congress wishes. Yet the legislative history of a law does add to the understanding of that law. If it didn't, then none quote the founders and no Supreme Court would concern themselves with what anything beyond the law says. Yet knowing what the intention of the lawmakers was is very important. Nothing in the legislative history indicates that Congress wished to grant this power to the president. Furthermore, while it has no bearing on the legality of the program, the fact that many legislators today have said that this a stretch or beyond what authority they thought lay in the AUMF.

Finally, while I think the president has the authority to interpret the laws, he still has to interpret them in a manner that would accord with the Supreme Court's rulings in previous cases and according to the construction that most people use when they interpret laws. The DOJ's interpretation of a general law amending a specific law is rather odd, as has been pointed out my numerous scholars, many Congress members and the two presiding judges of the FISC.


Noah
2.12.2006 1:47am
Medis:
Noah,

And the bottomline is that if the President is actively ducking judicial review, he can't really believe the Supreme Court would agree with his interpretation.
2.12.2006 1:52am
Bruce Hayden (mail) (www):
As we have noted, the President could get a judicial determination simply by submitting a FISA application using information from this program.
Well, only if they were denied a warrant. But I am not aware that there was any real evidence that evidence from the NSA program was not being accepted by the FISC. Besides, most of the issue is not that at all, but rather whether a call from/to al Qaeda to/from someone (legally here or not) in the U.S. can be surveiled without a FISA warrant. They apparently are being. Your suggestion I think is that this information be used for subsequent searches, and, presumably when such a request is denied, the Administration sues to get the warrant.
2.12.2006 1:52am
KMAJ (mail):
The executive branch is the ONLY branch that is elected by ALL the people. It seems the critics are actually arguing for two co-equal branches (legislative and judicial) with one subservient branch (executive). They leave no mechanism for the executive to protect its constitutional authority without reliance on the other two to say ok, while those branches can simply make decisions. I think the highest legal authority comes from the people. They are the only real check on legislative overreach, if the people do not like what Congress does, they can vote them out of office.

Even Madison stated that were the judicial and executive branches to work in cooperation, they would be no match for the legislative branch. All the critics seem to take no heed of the warnings of Madison and other Founders, instead their position advocates for that to happen, and they seem to fear letting the people decide. I find that a very hard position to justify. That is not to say every single decision should go before the people, but when you have ones as critical as this, and the safety of the people is at stake, and the executive branch believes the other branches are or may inhibit his carrying out his constitutional obligation to protect the people, I can think of no more relevant issue to be brought before them. I really think it comes down to some people do not trust 'we the people' and want someone else to tell them what is best for them.
2.12.2006 1:52am
Just an Observer:
KMAJ,

By precisely what mechanism do you propose to present this controversy to "the people" for their determination?
2.12.2006 2:02am
Noah Klein (mail):
Tom,

'"In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitu-tional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance."'

As you can see here, the court decided that they could not impose a warrant requirement under the Fourth Amendment. I am not sure I agree, but I can buy that argument. The courts said nothing though that indicated that the Congress could not require a warrant. Furthermore, the courts did not make the leap that you wish them to make, which says that in the area of foreign intelligence the president has exclusive powers. This would be odd, because the Congress has made a lot of rules regarding the intelligence services. Aside from the basic structure, which was set up by the Congress, they also made many provisions limiting what these services could do. Many we don't know, because they are classified, but some we do. The CIA cannot operate in the United States. Many have argued that the U.S. needs an MI5-type organization that would conduct intelligence in the U.S. This may happen, but we don't have it now, because Congress has yet to create such an organization. Furthermore, it has specifically proscribed an acting intel agency from acting like an MI-5. This might be a determint to our war effort, but the president can't impound funds and create an organization like MI-5. Nor can he violate the law and allow the CIA to conduct operations in the U.S.

Do you see what I mean? Just because the courts can't, does not mean the Congress can't. Nor does it mean the president has exclusive powers in this area. No branch has exclusive powers.

Noah
2.12.2006 2:04am
Medis:
Bruce,

The FISC could rule either way on the admissibility of information from this program when considering an application--although it appears that the FISCR and Supreme Court could only get jurisdiction if the application was denied.

KMAJ,

Are you kidding? The judicial branch and Congress can't actually do anything without the Executive Branch, because they can't issue direct orders to put any government actions into motion.

In general, you seem to keep forgetting the actual role of the Executive--you know, executing the laws, rather than deciding to make up their own laws, or defy the judicial branch's interpretation of the laws. Although you refuse to acknowledge it, what you want for the Executive is MORE than just to be supreme with respect to executive power--you want them to be supreme in all three areas of power.

Incidentally, the idea that the Founders wanted the people to decide these issues by referendum is ridiculous. They didn't even provide for direct election of the Senate--nor for direct election of the President, for that matter (as in fact President Bush found out in 2000).

But again, I have given up hope that the actual Constitution means anything to you.
2.12.2006 2:08am
Bruce Hayden (mail) (www):
The constitutionality of law does not change. If it constitutional at one point, it is always constitutional. Even if the enemy changes and even if the president is authorized to go to war. The wisdom of the law may change with time, but not the authority to make such a law. Supreme Courts may differ on the constitutionality of certain laws, but a law that is constitutional even if the times have changed.
I would be interested in your basis for this statement. Personally, it doesn't make sense to me.
Also, Congress's opinion now should not affect the interpretation of a law, beyond the passing of a law which spells out specifically what this current Congress wishes. Yet the legislative history of a law does add to the understanding of that law. If it didn't, then none quote the founders and no Supreme Court would concern themselves with what anything beyond the law says. Yet knowing what the intention of the lawmakers was is very important. Nothing in the legislative history indicates that Congress wished to grant this power to the president. Furthermore, while it has no bearing on the legality of the program, the fact that many legislators today have said that this a stretch or beyond what authority they thought lay in the AUMF.
As I said before, what legislators say now is irrelevant, even if they voted on the law (as most didn't for FISA, but admittedly, many still serving did for the AUMF). I will agree though that legislative history has some bearing on interpretation of laws. But mostly, where they are ambiguous, and some Justices seem to discount much of it. And, as I pointed out before, times have changed, and the reasons for FISA may no longer be valid. So, I suspect that the legislative history for the Act may have some influence on the courts, it will be taken with a grain of salt. Everything else that you propose, will, by necessity, be ignored.
Finally, while I think the president has the authority to interpret the laws, he still has to interpret them in a manner that would accord with the Supreme Court's rulings in previous cases and according to the construction that most people use when they interpret laws. The DOJ's interpretation of a general law amending a specific law is rather odd, as has been pointed out my numerous scholars, many Congress members and the two presiding judges of the FISC.
BFD (sorry to be blunt). I am sure that I am as unimpressed by your list of "experts" as the Administration is. None of those is a final judicial determination on the merits. And, as is obvious from the Cunningham letter, it depends on which cases you choose to use.

What must be remembered, is that none of those you cite have either the responsibility or the authority for national security. The President does. And that makes all the difference in the world - his interpetation rules until overruled by a final adjudication by the Judiciary on the merits.
2.12.2006 2:11am
Medis:
Bruce,

I guess you have stopped relying on Walter Dillinger, now that you found out he wasn't saying what you wanted.
2.12.2006 2:15am
Medis:
Sorry--"Dellinger".
2.12.2006 2:17am
Just an Observer:
Bruce Hayden: Well, only if they were denied a warrant. But I am not aware that there was any real evidence that evidence from the NSA program was not being accepted by the FISC.

That is essentially what the Post reported Thursday. No such warrants have actually been denied, but only because no such warrants have been applied for.

The chief judge and the DOJ lawyer managing the program were afraid such warrant applications could not pass muster because the NSA surveillance would be deemed to be unlawful. (You really need to read the top of the thread and its predecessors.)

So no test case ever occurred, but it could have. Presumably, such a case could still be initiated today.
2.12.2006 2:17am
Noah Klein (mail):
Bruce,

"But I am not aware that there was any real evidence that evidence from the NSA program was not being accepted by the FISC."

How about the Washington post report that started this whole thread?

"Besides, most of the issue is not that at all, but rather whether a call from/to al Qaeda to/from someone (legally here or not) in the U.S. can be surveiled without a FISA warrant. "

That is for the Congress to decide not the president.

"Your suggestion I think is that this information be used for subsequent searches, and, presumably when such a request is denied, the Administration sues to get the warrant."

Yes. When the executive applies for a warrant from the FISC that uses information obtained from this NSA program, the FISC has an opportunity to rule on the legality of the program which garnered the first information. This is able to be appealed. Why isn't that an appropriate means to test the legality of this program?

KMAJ,

"The executive branch is the ONLY branch that is elected by ALL the people."

Aside from the fact that this is fundamentally untrue (the whole legislative branch is directly elected by the people), the fact that the president of the whole nation does not alter his job description. The president enforces the law. He/she interprets it so that he/she can enforce, but the Supreme Court can overrule his interpretation and he/she follow the law as laid out by the Congress. But he/she can still veto the law or refuse to enforce a positive law, such as if the Congress mandated that the president conduct a search of every home in America. Yet if he is going to conduct an action, such as intelligence, he must follow the procedures set out by Congress. This does not eliminate the president's power or make him/her a robot. Congress's laws are often vague and the gives the president leeway in how he/she enforces them. But when a law is specific, he/she must follow the provisions of that law or not enforce the law at all.

Noah
2.12.2006 2:20am
Bruce Hayden (mail) (www):
Medis,

Not even sure who Walter Dillinger is or was. Sorry.
2.12.2006 2:29am
KMAJ (mail):
JaO,

The processes are quite clear, he could call for a national referendum or he could choose to believe he has public support for the NSA program and continue as he is doing. Congress has the option if they think his actions are egregious enough, and that they have public support, they can impeach him. If we get attacked again and people die, on whose shoulders will the blame lie ? Not the judicial of legislative branches, but the executive branch. The public will not swallow any excuses of saying the other branches prevented him from doing his constitutional duty.

Medis,

I have given up hope that you will ever realize the Constitution is about 'We the people', not you the lawyer. Gee, isn't that a fun way to debate, let's demean and cast negative aspersions with rhetorical flourish. Incidentally, I support your right to your opinion, I just disagree with it.
2.12.2006 2:34am
Medis:
Bruce,

Remember when you wrote about "Clinton era attorneys" cited by Cunningham? That was Dellinger.
2.12.2006 2:34am
Bruce Hayden (mail) (www):
Some more thoughts on this:
The constitutionality of law does not change. If it constitutional at one point, it is always constitutional. Even if the enemy changes and even if the president is authorized to go to war. The wisdom of the law may change with time, but not the authority to make such a law. Supreme Courts may differ on the constitutionality of certain laws, but a law that is constitutional even if the times have changed.
I am not a Con law scholar by any means, but my memory of unconstitutionality is that there are essentially two types, laws unconstitutional on their face, and laws unconstitutional as applied. Assuming no changes in the underlying case law, it is likely that a law that was not unconstitutional on its face is still not unconstitutional on its face. But when you come to unconstitutional as applied, then the relevant circumstances are key, and, as they change, so can the constitutionality of the law at issue.
2.12.2006 2:34am
Tom Holsinger (mail):
Point of information:

The Supreme Court's death penalty rulings show that past rulings upholding the constitutionality of a statute are no bar to successful later challenges to the same statute on the same grounds as prior challenges.
2.12.2006 2:36am
Noah Klein (mail):
Bruce
"'The constitutionality of law does not change. If it constitutional at one point, it is always constitutional. Even if the enemy changes and even if the president is authorized to go to war. The wisdom of the law may change with time, but not the authority to make such a law. Supreme Courts may differ on the constitutionality of certain laws, but a law that is constitutional even if the times have changed.'

"I would be interested in your basis for this statement. Personally, it doesn't make sense to me."

Common sense. A law cannot be unconstitutional one day and the next constitutional or vice versa. Different will disagree as to the constitutionality of a law, thus the Plessy court thought "separate but equal" constitutional and the Brown cour disagreed, but the true nature of law did not change, just people's understanding of it. Whether the FISA law is constitutional does not change, even though I think it is and other think it isn't.

The wisdom of a law is different than its constitutionality. I think that the current immigration's laws are not wise, but that doesn't mean that they are unconstitutional. It merely means that it does not help our society.

"I will agree though that legislative history has some bearing on interpretation of laws. But mostly, where they are ambiguous, and some Justices seem to discount much of it."

Knowing what the legislature thought it was passing is very important to knowing what it passed. For example, it has been said many times, that the legislative history of the FISA law shows that the Section 1809 that is referred to by the AG and DOJ, meant Title III and FISA, not some later ambigious law. Furthermore, the legislative history of FISA shows that when war was declared the Congress thought the president would come to them to make any necessary amendments to FISA. Finally, the legislative history of the AUMF shows the never considered the issue of domestic or domestic to international surveillance. This all show that the president is misinterpreting Congress's intent.

"What must be remembered, is that none of those you cite have either the responsibility or the authority for national security. The President does. And that makes all the difference in the world - his interpetation rules until overruled by a final adjudication by the Judiciary on the merits."

Yes, this is true. Yet (and this is only personal observation and not an objective or legal one), the fact that the president was so unwilling to have his actions reviewed by Congress (not telling the full intel committees is contrary to the law according to the CRS) or the judiciary demosntrates he did not think those two branches would of his actions. Since he did not believe that the case he made would be approved, it is somewhat a stretch to say that he was interpreting the law correctly.

Noah
2.12.2006 2:39am
Medis:
KMAJ,

I think that is a very telling statement on your part. The Constitution is a written document. It is also the supreme law of the United States. And insofar as We the People want to change the Constitution, it provides for a process to do so.

So, when you imply that the text of the Constitution is not really important, and what matters is what the people want, I think you are abandoning the very idea of living under a written constitution.

Honestly, I think you would be better off just admitting that you don't really care about the written Constitution of the United States. You wouldn't need to bother anymore with "constitutional" arguments, and we would not have to waste our time repeatedly going through how what you want is not in fact constitutional.
2.12.2006 2:40am
Bruce Hayden (mail) (www):
Thanks about Dillenger. I note that he was the Clinton era attorney most cited by Cunningham, but I was stuck on Moss, who was cited last. But it appears (at least quick reading) that Cunningham does cite Dillenger 5 times, and Moss only that once. The Dillenger quotes all seem to indicate a belief that the President is obligated to ignore laws that would intrude on the Executive until overruled by the Judiciary.

I am sure though that the only reason that Cunningham was quoting Dellinger so much is that the later was a co-signer on the letter that Cunningham was responding to, and was trying to show hypocracy. That, of course, wasn't Cunningham's only source for that proposition, but rather, just the most inflamitory.
2.12.2006 2:45am
Just an Observer:
Bruce Hayden,

That Dellenger opinion is based on good-faith review within the OLC of what the law is, and a corresponding good-faith estimate of what the Supreme Court likely would decide.

But that does not describe the spirit of the legal opinions Bush has been getting, which you observed yourself two days ago. These opinions are all about how much the President can get away with, and giving him cover to do as he wants.
2.12.2006 2:46am
Medis:
Bruce,

I pointed this out before. On page 14, Cunningham notes that Dellinger "wisely caution[ed] that the President should decline to enforce a statute he or she considers unconstitutional only where he or she believes the Supreme Court would agree."
2.12.2006 2:48am
Noah Klein (mail):
KMAJ,

"The processes are quite clear, he could call for a national referendum or he could choose to believe he has public support for the NSA program and continue as he is doing."

This would be fine if we lived in a different system, but we don't. We live in America. If you want national referendums, then fine, there is a method to obtain that. I personally believe what the founders believed that such a system would far too unwieldy, but that stop you from pursuing such an option. But you can't request that this is way this issue should be handled since its part of the social contract that we adopted.

"I am not a Con law scholar by any means, but my memory of unconstitutionality is that there are essentially two types, laws unconstitutional on their face, and laws unconstitutional as applied. Assuming no changes in the underlying case law, it is likely that a law that was not unconstitutional on its face is still not unconstitutional on its face. But when you come to unconstitutional as applied, then the relevant circumstances are key, and, as they change, so can the constitutionality of the law at issue."

This is true, yet application is an executive function. Therefore while the law and Congress's authority to make such law remains the same, the way the executive applies that law may differ and thus may be unconstitutional. But that doesn't apply to this debate, because you are saying that the law and its authority to be made can differ through time. I diagree and do not think this is a appropriate means to judge Congress's authority to make a law. The law may stupid, but it is still the law until Congress changes it.

"The Supreme Court's death penalty rulings show that past rulings upholding the constitutionality of a statute are no bar to successful later challenges to the same statute on the same grounds as prior challenges."

True, but that was the same with Plessy and Brown. Plessy was overturned, because it was shown that "separate but equal" does not treat people equally under the law and thus violated the constitution. The same with the death penalty. A majority felt that the law was cruel and unusual when the judge decides the punishment of a defendent rather than the jury.

Noah
2.12.2006 2:55am
KMAJ (mail):
Medis,

Tsk, tsk, such condescension. You err when you proffer that your interpretation of the Constitution is the ONLY correct one. Obviously, in the NSA case, there is a difference in interpretation, one put forth by the DoJ and OLC and one put forth by critics like you. So, essentially, you carry an elitist view that only Constitutional interpretations you approve of support the Constitution and its text. I think it is you that implies, with your implicit ignoring of 'We the people', that the text does not matter, only what you think it means.

Honestly, wouldn't you be simply better off admitting you are an elitist who think you should be able to dictate to the people what they should think and what is correct ? Gee, these demeaning rhetorical flourishes must be intellectually stimulating for you, and oh, so much fun.

Actually, I find such exchanges poltroonish and the amusement of engaging in sarcasm wears off quickly, so I will leave you to play alone in further pejorative, puerile displays of your angst.
2.12.2006 3:00am
Bruce Hayden (mail) (www):
In response to my question about the source of his suggestion that once a law is constitutional, it always will be.
Common sense. A law cannot be unconstitutional one day and the next constitutional or vice versa. Different will disagree as to the constitutionality of a law, thus the Plessy court thought "separate but equal" constitutional and the Brown court disagreed, but the true nature of law did not change, just people's understanding of it. Whether the FISA law is constitutional does not change, even though I think it is and other think it isn't.
In other words, you are guessing (and, yes, I do that too here). But, as I point out both above and below, the changing circumstances changed a de minimis encroachment into a major encroachment on Executive power by the Legislature.

And, I think that when you say that our understanding of segregation changed between Plessey and Brown, that was because when Plessey was decided, we had no real experience with "Separate but Equal", and it sounded nice. But by the time of Brown, we knew that it didn't work.

In any case, showing that in one instance, where it appeared that circumstances changed, it was really our understandings that changed does not say anything about other instances where circumstances changed.
The wisdom of a law is different than its constitutionality. I think that the current immigration's laws are not wise, but that doesn't mean that they are unconstitutional. It merely means that it does not help our society.
If it were merely the wisdom I was concerned with, then this wouldn't be as much of an issue. But, I am suggesting that changing circumstances moved a law with minor affect on national security to one that had a major impact on it, and, thus, became a major encroachment by the Legislature. And this much increased encroachment is why I seriously the current constitutionality of the Act.
2.12.2006 3:01am
Just an Observer:
KMAJ,

It does not take an elite lawyer to figure out that the Constitution of the United States includes no provision for a national referendum.
2.12.2006 3:03am
Bruce Hayden (mail) (www):
Noah, I think that you can make almost identical arguments about FISA and the President's Article II powers. Initially, it didn't seem to infringe on his powers because it wasn't used very much, and it wasn't viewed as much of an imposition. Now though, the Administration views it as a major imposition because of how it slows up vital surveilance and causes major paperwork headaches.

I guess what I am saying is that it is easier to argue that Plessey / Brown is more similar to the FISA situation than not, and that it is easier to show how the two are similar than how they differ.
2.12.2006 3:07am
KMAJ (mail):
JaO,

What is a presidential election other than a national referendum on who will run the executive branch ? Any such referendum would be subject to the electoral college or it would be subject to a constitutional challenge. There is nothing in the Constitution that prevents such a referendum. If it is not prohibitied in the Constitution, then it is Constitutional to have one.
2.12.2006 3:09am
Noah Klein (mail):
Bruce,

"If it were merely the wisdom I was concerned with, then this wouldn't be as much of an issue. But, I am suggesting that changing circumstances moved a law with minor affect on national security to one that had a major impact on it, and, thus, became a major encroachment by the Legislature. And this much increased encroachment is why I seriously the current constitutionality of the Act."

"Noah, I think that you can make almost identical arguments about FISA and the President's Article II powers. Initially, it didn't seem to infringe on his powers because it wasn't used very much, and it wasn't viewed as much of an imposition. Now though, the Administration views it as a major imposition because of how it slows up vital surveilance and causes major paperwork headaches."

First, I don't agree that FISA is a major imposition on the president's powers. It is possible it is, but I don't see that. I do agree it may be a minor imposition and to alter that I think that we should change the law to allow for review, but not delay.

Second, the circumstances surrounding the creation of a law may change, but that does not mean that the Congress's authority to make such a law changes. That authority is granted by certain provisions of the Constitution. In this case, those provisions of the constitution are the ones that allows the Congress to make the rules and regulations for the military. Congress had this power in 1978 and it still has this power. The wisdom of their use of this power may have changed due the circumstances, but not their authority to make such a law.

Noah
2.12.2006 3:17am
Bruce Hayden (mail) (www):
You concentrate on how Dellinger only suggests that Mr. Clinton utilize his own definition when he believes that the Supreme Court will agree with him. I concentrated on his suggestion that the President had the power and necessity to interpret the laws, until overriden by the Supreme Court.

In other words, you seem to be suggesting that the Administration try to guess how the Supreme Court is going to rule. Well, it isn't clear. Many of the facts are not yet in the record. We really don't know all that is happening. So, your predictions there are probably as uninformed as mine are.

You also seem to want the President to accept the interpretation of a series of "experts". But why should he? Are they really that much more likely to predict what the Supreme Court decides here? In any case, you have picked your authorities, and so has the Administration. You like yours because they say what you want to hear, and, I suspect, the Administration does the same. But it still comes down to the fact that the President's ass is on the line, and not yours, and not that of all those "experts" you cited.

I should note that appeals to authority backfire with me, and that may be part of the reason for a lot of my posts over the last week or so. Many here have appealed to authority, these Con law scholars said X, or the CRS said X, etc. And my response for at least the last 40 years seems to be, that is relevent, how?
2.12.2006 3:19am
Medis:
KMAJ,

Actually, I make no claim that it takes an expert to read and apply the Constitution to this case. I think it is enough to simply read the actual text. My precise problem with your approach to the Constitution is that you refuse to actually do that.

That said, I do think the plain meaning of the Constitution is confirmed by a number of sources, including contemporaneous documents, the history leading up to the Constitution, the contemporaneous practices of the Founders, and so on. But I have cited all that mostly just to deal with the arguments of people who want to read things into the Constitution that are not there. In my view, a plain reading should indeed be enough.

And I am being honest when I say you would be better off simply embracing the fact that you don't like our Constitution as written. It is not such a horrible thing to believe--many people around the world don't like our Constitution, and many people in the United States do not like one part or another. But I honestly think that you are ill-served by your nominal allegiance to the Constitution when in fact you are basing your arguments almost entirely on your own views about what a constitution SHOULD say--regardless of what our Constititution does say.

Indeed, if you are calling for referendums, why not call for a Constitutional Convention? In such a Convention, we could eliminate the parts of Article I which give Congress such an active role in regulating the military and war, and transfer those powers to the President. That would give you the sort of Presidency you want during war, and relieve you of the burden of trying to argue for it despite the clear statements to the contrary in the Constitution as it stands.
2.12.2006 3:19am
Just an Observer:
KMAJ,

An election of officeholders is one thing. A referendum on a policy issue is another. And there is no way, without a constitutional amendment to authorize it, that a referendum could decide such an issue.
2.12.2006 3:22am
Noah Klein (mail):
"The processes are quite clear, he could call for a national referendum or he could choose to believe he has public support for the NSA program and continue as he is doing."

"What is a presidential election other than a national referendum on who will run the executive branch ? Any such referendum would be subject to the electoral college or it would be subject to a constitutional challenge. There is nothing in the Constitution that prevents such a referendum. If it is not prohibitied in the Constitution, then it is Constitutional to have one."

A presidential election is not anywhere close to like the referendum you were referring to. Furthermore, the nature of the system that was created prevents such a referendum. The people make the laws through their representives and they enforce the laws through their representative and they judge the law based on people appointed by their representative. We don't Athenian system. Maybe you think we should. I don't Athens turned out that well and I think the founders established a system that is better, but you change our system. You just have to pass an amendment to the constitution. If don't like the government we have, fine, but don't us who do like to just accept a means to judge this program that is not in accords with that system.

Noah
2.12.2006 3:23am
Medis:
Bruce,

I'm just pointing out that the rule proposed by Dellinger was not "Do whatever seems right to you until the Supreme Court stops you." Rather, it was "If you believe the Supreme Court would agree, you can refuse to execute an unconstitutional statute."

So, maybe the President does in fact believe that the Supreme Court would agree with his interpretation of the Constitution. I suspect not, however. In part, that is indeed because I think his arguments are terrible and have largely been rejected already in Hamdi, and I suspect the President knows that he would be unlikely to win. I also think his lack of belief that the Supreme Court would agree with his interpretation is evidenced by his reluctance to actually test this program in court.

And so I doubt he is really following that rule. Rather, I suspect he is indeed following your rule--that he can do what he wants at least until he is specifically told "no" by the Supreme Court.
2.12.2006 3:29am
Noah Klein (mail):
OK everyone,

It's been fun, but I'm tired.

Good Night,
Noah
2.12.2006 3:39am
KMAJ (mail):
Medis,

Obviously, the DoJ and OLC have legal scholars who disagree with you. So what makes you so right ? Because I think they make a sounder argument than you do means I do not believe in the text of the Constitution ? I do honestly believe you are an elitist, also, but I find such comments usually not conducive to discussion, but cheap, puerile debate tactics.

Seriously, I do defend your right to your opinion and hold no expectation of changing it.

JaO and Noah,

A constitutional amendment would not be the vehicle necessary to hold a national referendum, whether it would need a bill from Congress signed by the president or could be done by executive order, the former would be the more likely avenue. Only if it was expressly prohibited by the Constitution would an amendment be necessary to change the prohibition. Now if you can show me where in the Constitution national referendums are specifically and expressly prohibited, I will agree with you.
2.12.2006 3:39am
Bruce Hayden (mail) (www):
Noah said:

First, I don't agree that FISA is a major imposition on the president's powers. It is possible it is, but I don't see that. I do agree it may be a minor imposition and to alter that I think that we should change the law to allow for review, but not delay.
Well, the AG says it is, and you say it isn't. I find him more credible here, given that he is the one who has to approve all those applications, and it is his employees who are spending so much time getting them, etc.
Second, the circumstances surrounding the creation of a law may change, but that does not mean that the Congress's authority to make such a law changes. That authority is granted by certain provisions of the Constitution. In this case, those provisions of the constitution are the ones that allows the Congress to make the rules and regulations for the military. Congress had this power in 1978 and it still has this power. The wisdom of their use of this power may have changed due the circumstances, but not their authority to make such a law.
I agree that the clauses that granted Congress the authority to pass FISA didn't magically disappear in the 30 years since then. But that is not the only, or even the major, concern when discussing whether or not FISA today, as applied to the NSA program, is Constitutional. This is essentially arguing U.S. v. Lopez (gun free school law not supported by the Commerce Clause) when the argument should be more a Youngstown Steel type discussion (Separation of Powers).

Yes, a law has to pass the Lopez hurdle first. If Congress doesn't have an enumerated right under which it enacts a law, it is unconstitutional. But in disputes like this, where the law restricts the inherant power of the Executive, you have to go the next step and see if it overreaches. And this is where the changed circumstances come into play. Initially, its effects on the President's ability to protect the American People was de minimis. Currently though, the AG asserts that it no longer has a de minimis effect, but is rather a large impediment to that plenary power and responsibility of the Executive. It is not just that it impairs the President's ability to operate as CinC, but also his ability to protect and defend the Constitution of the U.S., through protecting us from foreign enemies.
2.12.2006 10:56am
Just an Observer:
KMAJ: There is nothing in the Constitution that prevents such a referendum. If it is not prohibitied in the Constitution, then it is Constitutional to have one.

Bruce Hayden: If Congress doesn't have an enumerated right under which it enacts a law, it is unconstitutional.

Bruce, would you please tutor KMAJ on civics? Be careful. He doesn't have much respect for lawyers and their "elitist view" of the Constitution.

But perhaps he will listen to you, since you two apparently agree that the President should not allow the courts to decide the legal issues unless he is compelled to do so.

I think the President, in the interest of settling the crisis and combatting terrorism, should instruct DOJ to inititate a test case so their legal theory can be vindicated or rejected in the Supreme Court.

So far, the President is afraid to do so.
2.12.2006 11:57am
Medis:
KMAJ,

I don't find appeals to authority useful either way. As frequently noted, I have grounded my arguments primarily in the text of the Constitution, as supplemented by contemporaneous documents, history, and practices. Those sources are open to all for their own examination. I have also pointed out where the Administration and its defenders seem to be ignoring relevant portions of the Constitution and these supporting sources. Again, people can compare those arguments to the relevant sources to decide for themselves if those arguments do indeed ignore crucial elements.

So, I don't expect people to accept my views because I said so. But I do think that people making "constitutional" arguments must deal with the actual text of the Constitution as supplemented by these supporting sources.

And KMAJ, seriously, you do not ground your "constitutional" arguments in the text and these sources. In all honesty, I think you are making policy arguments, and simply asserting that the Constitution supports your preferred policies without making any serious attempt at examining that question. I also think you are agreeing with the Administration and its defenders because you like their conclusions, without critically examining whether or not their arguments are well-grounded.

All of which would be fine if you were making arguments about what the Constitution SHOULD say, regardless of what it DOES say. And I don't quite understand your resistance to moving your arguments to that level--you have basically admitted that you are concerned about policy and not law, so why are you so concerned about the legal question of what the Constitution requires? Why not just stick to your policy arguments and suggest that if the Constitution does not allow your preferred outcome, the Constitution should be changed?

Incidentally, here is the reason we cannot have referendums under the Constitution. The Constitution vests all the legislative power granted by the Constitution of the United States in Congress. In order for Congress to make a law, the same bill must be passed by both Houses and presented to the President for his signature. As the Supreme Court has long held, by making this legislative process explicit, the Founders ruled out any other procedure for making laws. Congress, therefore, cannot delegate this lawmaking power--not to the President, and not to a referendum.

That said, I don't think Congress would be prohibited from conducting a non-binding referendum for advisory purposes--effectively, a formalized polling process. But a referendum could not be used to make law, because laws under the United States Constitution can only be made through the Article I process.

Again, though, it seems to me you could respond not by saying the Constitution DOES allow referendums, but rather that it SHOULD. This would not be so horrible--many state constitutions, for example, do indeed provide for the making of law through referendums. So, again, I don't quite understand your reluctance to treat this as a policy question, nor why you seem to be insisting that if something like a referendum would be a good idea, it must be authorized in some way by the Constitution as it currently stands.
2.12.2006 11:58am
Medis:
Bruce,

I will again note that I see no Constitutional authorization for your overreaching/balancing test, nor any support in any Supreme Court case.

But anyway--again, who in your view should have the final decision about whether Congress has "overreached" in using its enumerated powers?
2.12.2006 12:13pm
Tom Holsinger (mail):
Medis,

The flaw in your reasoning lies in your assumptions concerning the scope of Congressional authority. That leads you into error after error. Recall how I got you to assert that Congress could enact a constitutionaly valid prohibition against the President using tanks or aircraft in war, then thanked you for your candor.

The federal courts have held over and over that war and foreign policy are the President's core powers. Truong did not use the term "core", so you assert that Congress can prohibit a President from conducting warrantless searches of foreign spies.

No act of Congress can validly prohibit a President from having Executive officers open and read the sealed diplomatic pouches of foreign embassies. No act of Congress can validly prohibit a President from opening the mail of foreign spies, or from electronic surveillance of their phone calls, etc.

You say Congress can do that.

There is nothing further for the two of us to discuss on this point.
2.12.2006 12:24pm
Medis:
Tom,

Again, in Dames &Moore and Hamdi, the Supreme Court dispelled the idea that somehow "war and foreign policy" are areas in which the President has exclusive powers. Of course, the actual Constitution makes that clear as well, as do all the historical sources I have mentioned.

But I agree that if you are unwilling to accept the words of both the Constitution and the Supreme Court, as supported by these other sources, then we probably don't have anything further to discuss.
2.12.2006 12:34pm
Bruce Hayden (mail) (www):
I will again note that I see no Constitutional authorization for your overreaching/balancing test, nor any support in any Supreme Court case.
This is implicit in Separation of Powers issues. It is the Constitutional limit on how much the Legislature can interfere with the Executive's functions. I would suggest that without a balancing test, as you seem to be proposing, Congress is supreme, since there are no limits as to how much it can interfere with the Executive.

And note that Jackson's category III was a balancing test, though, arguably, coming to its conclusion by implicitly placing the connection of the steel mill seizures to Executive power far down on the scale, and, thus, resulting in the deference that many here have suggested courts should to show the Legislature when there is a conflict. But it was a balancing test, nevertheless. I should add, rereading the concurrence, that Jackson spends most of his time balancing Congressional and Executive power, and while he addresses the CinC power, he doesn't (apparently because it wasn't brought up) address defending the American people through the President's duty "to the best of [his] ability, preserve, protect and defend the Constitution of the United States." And note that this power and responsibility is plenary, as opposed to the shared power the Executive and Legislature have over the military.
2.12.2006 1:10pm
Medis:
Bruce,

Yes, if it is an issue of lawmaking, and Congress is acting within its enumerated powers and not contrary to an explicit limitation, then Congress IS supreme. That's how the separation of powers works--each branch holds the final say within its sphere of power, and legislation is the sphere of Congress.

And so if the issue is legislative, then Congress has the final say. To hold otherwise would be to say the President and Congress somehow share legislative power (beyond the explicit presidential power of the veto), and THAT would be a clear violation of the separation of powers.

And Jackson's test in Category III was explicitly NOT a balancing test. Again, the rule is:

"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."

So, it is not a "balancing test". Rather, it is a "subtraction test"--insofar as Congress has exercised a constitutional power, the President loses his inherent power.

Finally, you are quoting the President's Oath of Office, not a delegation of power. In any event, that obviously is not an exclusive power either. Article VI specifically provides, "The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution."

So, all three branches share the responsibility of protecting the Constitution of the United States. As the Founders clearly intended.
2.12.2006 1:41pm
Tom Holsinger (mail):
Attorney General Griffin Bell told Congress in 1978 that FISA would not impede a President from exercising his inherent Constitutional authority to conduct warrantless electronic surveillance of foreign spies in the U.S. "when such surveillance is conducted primarily for foreign intelligence reasons."

Some here contend that AG Bell was incorrectd, and that FISA's provision that it is the sole authority for domestic electronic surveillance supercedes a President's inherent Constitutional power in this regard.

The same people resolutely refuse to read James Bamford's readily available books on the National Security Agency as those refute their secular faith concerning such matters.

Because this faith is far more important than evidence, reason or logic. Anything contrary to their faith must be denied.

Which makes discussions with them pointless.
2.12.2006 2:38pm
KMAJ (mail):
Medis,

I find your textual argument unpersuasive. Obviously, there are lawyers in the DoJ and OLC who disagree with your textual analysis, thus come to a vastly different interpretation. What your argument is founded on is the premise that your opinion is the ONLY textual one. Hmmm, interesting elevation of your own opinion.

Let's put your textual interpretation to the test, do you think Everson is a textual interpretation of the Establishment Clause ? How do you view gun control legislation in light of the text of the Second Amendment ? How about Roe v. Wade ? One persons claims to textual high ground is another persons bastardization of the text. Maybe you agree with the radical shift SCOTUS took in interpreting the Constitution with the Hughes Court decision in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). Was that a textual interpretation ? Or was it political to accomodate the New Deal ? It is that radical shift that has been the foundation of many judicial decisions since. If, such a monumental shift in interpretation is the foundation for many rulings since, including FISA, doesn't that bring into question the textual adherence to the Constitution of many decisions since then ? It is on those grounds that I find your textual purity argument unpersuasive and self-serving.
2.12.2006 3:41pm
Bruce Hayden (mail) (www):
First note that the oath by Senators and Representatives is in Article VI, and not Article I, and the same requirement applies to the members of the various state legislatures. It also only requires that they swear or affirm to "support" the Constitution - there is not the requirement to "preserve, protect and defend" the Constitution, as required by the President in, notably, Article II. "Support" is a much weaker requirement than preserving, protecting, and defending the Constitution. Also, it is significant that the President's oath is in Article II, which lays out his powers and duties, whereas the Congressional requirement is in a catch-all Article VI. Also, the fact that an identical oath is required by state legislators, is indicia that it does not translated into an obligation to actively defend the U.S. against foreign enemies - since the states are precluded from international relations, etc. by that very same Constitution.

The courts, for at least the last century, have found that the President's authority to conduct foreign policy is plenary. It is not shared by the Legislature, except to the extent that the Senate must affirm all treaties. Note, in particular, Curtis-Wright Export, 299 U.S. 305 (1936). Also, of interest is J. O'Connor's concurrence in Webster v. Doe, note 6, 486 U.S. 592, 605-06 (1988) where she said:
The functions performed by the Central Intelligence Agency and the Director of Central Intelligence lie at the core off the "delicate, plenary and exclusive power of thee President as the sole organ of the federal government in the field of international relations".
Also of some interest is a concurrence by J. Kennedy, joined by the Chief Justice and J. O'Connor, in Public Citizen v. DoJ, 491 U.S. 440 (1989), where balancing in Separation of Powers issues, such as Jackson's Zone 3, is required, UNLESS IT IS A PLENARY POWER OF THE EXECUTIVE. In other words, combining Curtis-Wright, Webster v. Doe, and Public Citizen would lead to the result that there would not be any balancing whatsoever, since international surveilance is a part of national defense, which is a plenary power of the President, and FISA, to the extent that it interferes with that power, is unconstitutional. (I am not advocating this position, but pointing out that it probably has more validity than depending on the concurrence of a single Justice who was dealing with much different facts - in particular, domestic commerce versus international surveilance, and which concurrance for Zone 3 has not really been widely adopted in the 50+ years since).
2.12.2006 6:18pm
Bruce Hayden (mail) (www):
Medis,

Let me reiterate the last. You are interpreting a 53 year old concurrance by a single Justice for the proposition that Separation of Powers issues are to be resolved by a subtraction test favoring the Legislative branch, which is in contrast to a 16 year old concurrance by three Justices, one who is still sitting, that Separation of Powers issues are to be decided by a balancing test ('In some of our more recent cases involving the powers and prerogatives of the President, we have employed something of a balancing approach, asking whether the statute at issue prevents the President "from accomplishing [his] constitutionally assigned functions."Morrison v. Olson, 487 U.S. 654, 695 (1988), quoting Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977), and whether the extent of the intrusion on the President's powers "is justified by an overriding need to promote objectives within the constitutional authority of Congress." Ibid.'), unless the Executive power in plenary ("In a line of cases of equal weight and authority, however, where the Constitution by explicit text commits the power at issue to the exclusive control of the President, we have refused to tolerate any intrusion by the Legislative Branch.)".
2.12.2006 6:36pm
Medis:
KMAJ,

In light of the Founders' own Articles of War, exactly why do you find my interpretation of Article I, Section 8 unpersuasive?

Bruce,

First, three minor points:

Curtiss-Wright was a Category 1 case, although I agree the dicta was broader. Obviously, however, Youngstown, Dames &Moore, and Hamdi are all more recent and more on point.

You're actually quoting from the dissenting part of O'Connor's opinion in Webster.

The specific "prerogatives" to which a balancing approach has been applied are things like executive privilege (you can trace back the case citations you note to U.S. v. Nixon, in fact, currently being discussed elsewhere on this blog). If you look through many of those cases, you will find they also cite Youngstown. But that isn't inconsistent--the separation of powers issues raised by something like an assertion of executive privilege are different from the ones we are considering.

In general:

I agree that if the Constitution grants an exclusive power to the President--such as negotiating treaties or nominating judges--then Congress cannot interfere with the President's exercise of that specific power.

So, the question is whether making rules regarding the conduct of war is an exclusive power of the President. The Court has never held such a thing. To the contrary, it has held the opposite in Hamdi. And, of course, the text of the Constitution really admits no other interpretation in light of several enumerated powers in Article I, Section 8.

Incidentally, Cunningham et al have tried to take the language in cases like Curtiss-Wright to imply that all foreign matters are areas of exclusive power for the President, and therefore urge that Youngstown (which they treat as purely domestic) does not apply.

As I have noted many times now, this general proposition is dispelled by Dames &Moore and Hamdi, where the Court reaffirmed that the Youngstown framework does apply to foreign matters, including the conduct of war.

And again, when I say Cunningham ignored Hamdi and Dames &Moore, I mean that quite literally--as far as I can tell he simply omitted any citation or discussion of those cases. Which I guess is understandable, because they eviscerate that part of his argument.
2.12.2006 11:30pm
Medis:
It has been a while, so maybe it is worth concluding my participation in this thread with the following quote from Hamdi, which I think explains all one really needs to know about why the President would not want to test his claims in court:

"We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Sheet &Tube, 343 U.S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."
2.12.2006 11:35pm
Just an Observer:
Bruce Hayden,

I would add my own comments about the cases you cited:

The "plenary" power discussed in Curtiss-Wright (cited in O'Connor's Webster v Doe dissent) is not the Commander in Chief role, but rather the President's role as the "sole organ of the federal government in the field of international relations." That is, diplomacy and associated intelligence-gathering.

The agency and officer mentioned in Webster are the "Central Intelligence Agency and the Director of Central Intelligence." The CIA is not authorized to operate within the United States, but abroad. The NSA, whose traditional charter is limited to operations outside the country, is a military agency. It might arguably be considered analagous to the CIA under the same "plenary" power, but with the same geographic limitation.

When the NSA exceeded that traditional charter and began operating within the United States pursuant to Bush's post-9/11 order, surveilling U.S. citizens here, this activity cannot be considered part of its international "plenary" portfolio. Yes, the intercepted communications do have a foreign terminus. But they all also have a U.S. terminus, and thus are legally covered by FISA.

FISA applies to surveilling foreign powers and their agents in the United States or intercepting their communications here. Outside the country, FISA doesn't apply, so there is no infringement on the "plenary" sphere.

That "plenary" authority was interepreted quite broadly by OLC lawyers within the Reagan administration, but even that interpretation recognized limits. Beth Nolan, counsel to President Clinton, quoted from the Reagan-era OLC opinion during the Alito hearings:


To determine the boundaries of this requirement, OLC read the phrase "timely notification" against the background of its view of the President’s constitutional authority. OLC expressed the President’s authority in sweeping terms: "The President's authority to act in the field of international relations is plenary, exclusive, and subject to no legal limitations save those derived from the applicable provisions of the Constitution itself." The same opinion offered as limited a view of Congressional power as it did a broad view of Executive power, opining that "[t]he Constitution gave to Congress only those powers in the area of foreign affairs that directly involve the exercise of legal authority over American citizens." (my emphasis)


So it is quite a stretch to claim that "plenary" powers abroad transfer to exclusive powers to surveil citizens at home.
2.13.2006 12:15am
Bruce Hayden (mail) (www):
One problem, as I see it, with your analysis, is that you ignore the reason that there is now a "domestic" component to the surveilance. You have a program that would could have been easily exempt from FISA a decade or so ago. It wasn't just a whim on the part of the NSA that brought the tapping onshore, but rather, technology. They just can't effectively tap incoming international calls anywhere else. When FISA was passed, and for probably a couple of decades later, they could, and did. Today, they can't.

As to your repeated Hamdi cite, yes, the case cites Youngstown Steel. Indeed, every part of the opinion, whether it be the plurality, Scalia's dissent, Thomas' dissent, or Souter's concurrance in part/dissent in part, all cite Youngstown, for any number of mutually exclusive propositions. It is really only Souter, joined by Ginsburg, who views this at all as a Separation of Powers issue and cites Jackson't concurrance for the proposition that when when in Category III, the Executive's power is at its lowest ebb. And, guess what? Souter says: "Since the Government has given no reason either to deflect the application of §4001(a) or to hold it to be satisfied, I need to go no further", and then launches into his Jackson theme. It is dicta, pure and simple. Worse, this is essentially part of his dissent, since the majority found that the AUMF authorized the indefinite detention, while Souter got into Separation of Powers with a dissent to the contrary, and then, suggesting that the AUMF didn't authorize the indefinite detention, found a conflict between 18 USC 4001(a) and the President's claimed Executive power. So, what you have in support of Jackson's concurrance in the Youngstown Steel case and its Category III deference to Congress is dicta within a dissent by two of the most liberal members of the Court. (This just reinforces my prediction last week of 7:2 in favor of the Govt. if this should get to the Supreme Ct. - with Souter and Ginsburg in the dissent - note that Stevens and Breyer found that the AUMF authorized indefinite detention of an American determined to be an enemy combatant captured in a war zone).

Dames &Moore is also totally inapplicable. It is a Category I case, and Jackson's concurrence is cited as support for the proposition that when the Executive acts in concert with the Legislature, its power is at its highest - just the opposite of the Category III situation cited against the NSA. Note also this:
Although we have in the past found, and do today find, Justice Jackson's classification of executive actions into three general categories analytically useful, we should be mindful of Justice Holmes' admonition, quoted by Justice Frankfurter in Youngstown, supra, at 597 (concurring opinion), that "[t]he great ordinances of the Constitution do not establish and divide fields of black and white." Springer v. Philippine Islands, 277 U.S. 189, 209 (1928) (dissenting opinion). Justice Jackson himself recognized that his three categories represented "a somewhat over-simplified grouping," 343 U.S. at 635, and it is doubtless the case that executive action in any particular instance falls not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition.
2.13.2006 3:27am
Medis:
Bruce,

Right, a majority of the Justices in Hamdi did not see it as a Category III case. But the important point in this context is that they ALL thought that Youngstown applied. If Youngstown was actually just a domestic affairs case (the Cunningham theory), Youngstown should not have applied at all. But not a single Justice--not even Thomas--thought that was true.

That is the point of Dames &Moore as well. Again, the Court did not see it as a Category III case, but they DID apply Youngstown to a foreign affairs case. So, again, Cunningham's theory that Youngstown is just about domestic affairs is simply unsupportable in light of Dames &Moore.

And so, again, it is no mystery why Cunningham simply didn't talk about these cases--they make hash out of his claim that Youngstown applies only to domestic affairs.

Finally, look closely at that language from Dames &Moore. What the Court is rightly pointing out is that there is a spectrum with respect to how an Executive action might interact with a statutory scheme. But there is no hint in that language that insofar as Congress has in fact prohibited an action, that prohibition might be unconstitutional simply because of some sort of ad hoc balancing test involving the costs and benefits of that law.

By the way, have you explained yet who is supposed to be doing this balancing? Are you really suggesting the courts should perform such a balancing, as they do in the Executive privilege cases?

Anyway, under Dames &Moore and Hamdi, the Court would indeed have to decide if the "exclusive means" language in 2511(2)(f) had been implicitly repealed by the 2001 AUMF. But if not, then electronic surveillance within the meaning of FISA without going through the procedures of Title III or FISA would in fact be expressly prohibited by statute. And there is no hint in Dames &Moore, or in the opinion of any Justice in Hamdi, including Thomas, that Youngstown would not supply the applicable rule in such a case simply because military matters or foreign affairs were involved.
2.13.2006 10:25am
Just an Observer:
Bruce Hayden: As to your repeated Hamdi cite, yes, the case cites Youngstown Steel. Indeed, every part of the opinion, whether it be the plurality, Scalia's dissent, Thomas' dissent, or Souter's concurrance in part/dissent in part, all cite Youngstown, for any number of mutually exclusive propositions. It is really only Souter, joined by Ginsburg, who views this at all as a Separation of Powers issue and cites Jackson't concurrance for the proposition that when when in Category III, the Executive's power is at its lowest ebb

That is simply not true.

In O'Connor's plurality opinion, in the the introduction to the oft-quoted section citing Youngstown, she says: "In so holding, we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances." (my emphasis)

O'Conner's opinion went on to extend its own principles to all three branches, which was dicta with regard to Congress. But the holding itself was unquestionably on a separation-of-powers question.
2.13.2006 10:48am
Medis:
JaO,

Exactly. To accept the Cunningham view, one would have to believe that the Court thinks that the judicial branch can cite Youngstown in a foreign/military case involving the separation of powers, but Congress cannot.

Which is very, very unlikely. Indeed, as I have noted, even Thomas suggested that his vote depended on the fact that it was the judicial, not legislative branch, involved in the question. Which is why I think it looks more like 9-0 than 8-1.
2.13.2006 11:05am
Just an Observer:
Bruce Hayden: One problem, as I see it, with your analysis, is that you ignore the reason that there is now a "domestic" component to the surveilance. You have a program that would could have been easily exempt from FISA a decade or so ago. It wasn't just a whim on the part of the NSA that brought the tapping onshore, but rather, technology. They just can't effectively tap incoming international calls anywhere else. When FISA was passed, and for probably a couple of decades later, they could, and did. Today, they can't.

To the extent that is true, it is a policy question for Congress. I suggest that you write to your elected representatives and seek an update of the statute to accommodate new technology.
2.13.2006 11:20am
Medis:
JaO,

To be fair, one could also hope to get Judge Posner on one's panel.
2.13.2006 12:07pm