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David Kris on NSA Surveillance Program:
David Kris, who served as Associate Deputy Attorney General at DOJ from 2000 to 2003 and was one of DOJ's top national security lawyers, has written a 23-page response to the 42-page DOJ memo on the NSA program. Kris, who is now in the private sector, is a terrific lawyer with a very deep knowledge of this area. His memo is (unsurprisingly) very strong. While Kris does not reach a definitive conclusion, the basic thrust of the memo is that the Administration's legal arguments aren't very good.

  For more on this, see Marty Lederman's post today at Balkinization.
Dave:
"the Administration's legal arguments aren't very good."

My understanding is that the torture memo didn't even mention, much less refute, the controlling precedent for partitioning executive and congressional authority during wartime. The administration doesn't care if its arguments are good. It cares if they get the job done. Given the recent performance of the Senate Intelligence committee, the administration appears to have played its cards right.

Dave
3.9.2006 11:18pm
Kovarsky (mail):
I read that response, and there's not one substantive legal argument Kris seems to think viable. Perhaps motivated by his status as former administration official, his acknowledgments of the administration's arguments are invariably legal platitudes. (e.g. where he says that the administration's arguments are bad but not "frivolous" - that's obviously negative, and after he's spent several paragraphs rejecting them, he doesn't provide a single reason why they're not frivolous; he just says it).

His ultimate conclusion - again not supported by any case law - is again a realpolitik assessment of the "importance of the information sought" and the degree to which FISA frustrates the government's attempt to seek it. Well, that assessment mercifully ignores the third important issue (not surprisingly, the one cutting most strongly against the government), the goodness of fit between the information sought and the means for seeking it. It doesn't matter how important the national security information is if the government has a program that doesn't effectively seek it. Kris is too smart to omit this very traditional analytic exercise by accident. He's being charitable.

Moreover, he (begrudgingly) notes that to the extent FISA would frustrate information collection, then it might be unconstitutional under Article II (if you also ignore Youngstown, he admits). He never explains why FISA might actually do that (in fact he seems to explain why it doesnt), but merely notes that if there were a terrorist that was going to blow up a building and was getting a call for the coordinates, FISA would be unconstitutional if it prevented the executive from intercepting it. Fine, but everybody knows, including Kris because he says it in the next paragraph, that FISA doesn't approach that level of frustration. I think his use of the terrorist with an imminent explosive hypothetical while descriptively accurate is contextually manipulative, because it assumes for the sake of illustration precisely what FISA corrects.

Kris is extraordinarily astute. But I do not know whether he has internalized or is deliberately seeking to effect the rhetoric that a negative assessment of the administration's position is a biased one. In every instance where he offers overwhelming legal and factual support that undermines the administration's position, he seeks to balance it out with a purely cosmetic comment about how the administration might be right. As I was reading it, it struck me a little like Einstein spending two hours presenting his proof of relativity, and then concluding by saying "and maybe not."

This report is damning of the administration in the extreme, but it provides just enough counterveiling quotables so that administration apologists can get just enough soundbites so that they can rely on their readers not to go read the memo itself. I'm guessing I'll see "the constitution is not a suicide pact" quote over and over again, completely robbed of context.
3.9.2006 11:26pm
Kovarsky (mail):
Also, for the record, I'm not real sure where Kris comes up with the idea that all of a sudden the justices are going to be constitutional pragmatists - you know, weighing the costs and benefits of national security policy against civil liberties, and come to an answer. The idea that this Court would decide a case this way baffles me - the court has moved inexorably AWAY from this methodology for years. Behind closed doors, the administration was practically having a block party over replacing a pragmatist with a textualist minimalist.

Why on earth would Kris think that the court would all of a sudden shed it's preference for rules in favor of a balancing test? Once again, my suspicion is that he knows in his heart of hearts that this program was unconstitutional to the bone from the start, but he's just too "nice" to say it categorically.
3.9.2006 11:44pm
A Blogger:
Kovarksy,

You're missing the audience for this memo: Kris is writing to his former colleagues at DOJ. He is a former Bush official, and wants to persuade people within DOJ that the arguments stink without giving their opponents a hammer. He apparently thinks that there are people at DOJ who might be persuaded to change course: we'll see if he's right.
3.9.2006 11:54pm
Wintermute (www):

It's been a long time comin',
It's going to be a long time gone.
But you know, the darkest hour,
Is always, always just before the dawn.
--David Crosby
3.10.2006 12:02am
Fishbane (mail):
As I was reading it, it struck me a little like Einstein spending two hours presenting his proof of relativity, and then concluding by saying "and maybe not."

Well, are you surprised? He isn't writing a judgement, or a prayer for relief. He's writing an opinion on a matter that will be decided by people. If he were doing physics, I'd expect an opinion on what was happening, or at least a supposition. As it is, he can observe, and argue and predict, but ultimately people determine law, whereas physics just is. Law is probably the most postmodern of all professions - one's viewpoint can, indeed, alter the rules under which the game is played.

(Before anyone starts, math is my higher power. One's choice of god doesn't impact it. Many things happen because of it, including certain interactions between particles.)
3.10.2006 12:04am
Dave Hardy (mail) (www):
I am not surprised that the DoJ position takes 43 pages to set out, and the rebuttal by a prior DoJ person takes 21. In my experience, DoJ took 4-5 pages just to say what the issue was, when any sane author would do it in a sentence or two.
But it must be a forgery unless it uses the word "quintessential" at least once.
3.10.2006 12:12am
Dave:
A Blogger,

I don't think that will help, for a couple of reasons. First, decisionmaking power has been skewed in the executive agencies. Yoo was only a mid-level official at Justice, yet he got to write many of the administration's most important policies regardless of what his colleagues thought and usually without their knowledge

My understanding is that much of the DOJ (not to mention the rest of the executive branch and Congress) has been cut out of the loop on a lot of Bush's activities because they're afraid of internal criticism shattering the plausibility of the argument that they didn't know they were breaking the law. See, for example, James Baker's statement to Congress in 2002 about wiretapping (after the NSA program started), or the way the torture memo was handled, or the way the Pentagon's Working Group report (which implemented Yoo's torture memo) was hidden from its ostensible authors.

As Mora's experiences (linked to above with the working group article) demonstrate, even when the vast majority of officials want a policy (in that case, a ban on torture), the administration won't give it to them if it conflicts with John Yoo's views of executive authority.

We live in interesting times.

Dave
3.10.2006 12:13am
Kovarsky (mail):
Law is probably the most postmodern of all professions - one's viewpoint can, indeed, alter the rules under which the game is played.

You've got it completely backwards. Law is MOST VULNERABLE of all disciplines to postmodern criticism, but it IS the LEAST postmodern discipline because it is the last discipline to come to grips with the implications of subjective interpretation. I mean you still have many of its academics and most of its practitioners running around talking about "the objective meaning of the constitution," as if the last 50 or so years of literary and cognitive theory haven't disproven that such a think could even exist.

P.S. - As a matter of practicality, I can concede that we might need to pretend that the constitutional "has" a "single meaning." But that's a radically different position, based on utility, not ontology.
3.10.2006 12:16am
Grand CRU (mail):
Kris says point-blank in his memo:


While I do not agree with the government, I appreciate the very high quality of its legal analysis.



In other words, unlike the tenor of Marty Lederman's post suggests, Kris is not claiming that the government's arguments are facetious, cynical, implausible hackwork.

Kris also notes that the answer to the Fourth Amendment and Article II questions depend on facts not presently available. In other words, Kris admits his memo is incoherent. Indeed, to the extent Kris's memo relies on the NY Times article by James Risen and Eric Litchblau (see footnote 1), it is faulty. Relevant officials have repeatedly noted that while the gist of that article was correct, i.e., there was a secret NSA program, much of it was incorrect, i.e., the particulars of the program's operational details as described in that article are inaccurate.

Lastly, Kris hypothesizes that if a terrorist awaiting instructions by phone to detonate a nuke in Georgetown, then the NSA program could opt out of FISA's procedural standards by satisfying its substantive ones, e.g., probably cause. Kris: "The Constitution is not a suicide pact." To the extent Marty Lederman disagrees with Kris' memo, Kris' memo tends to support the government's argument. In other words, I wouldn't go invading a country on the basis of this memo, so to speak, because it ain't a slam-dunk.
3.10.2006 12:33am
minnie:
I agree with Wintermute's implication. I had concluded that given the present state of lock-step, corrupt non-government being practiced in the House and Senate by both parties, if the burning issues which have haunted many of us, the illegal government actions, the acceptance of government sanctioned torture, the Orwellian assaults on privacy and the stripping away of constitutionally protected civil rights were going to be seriously addressed, it would have to be because of growing public pressure on government. The People vs. The Government of the United States of America.

That is obviously a David vs. Goliath type battle which could make one despair about the prospects of success.

In the last few days, it had occured to me that there might be a very powerful ally on the People's side: the intelligent, principled and articulate members of the legal community who really care about the Rule of Law and more than that, about justice.

The country may land up being saved by the judicial community. That would be sweet.

It was heartening to hear CJ John Roberts, speaking at the Reagan Library function, relate how Reagan, a hero of his, had talked to him about the role of a good judge requiring the "lonely courage of a patriot."

Here's hoping.
3.10.2006 12:42am
A Blogger:
Dave,

I reckon that David Kris knows DOJ's internal politics better than you do. DOJ is now in the loop because Gonzales is AG.

Grand CRU,

That is exactly what you are supposed to say. Thank you for playing to type.
3.10.2006 1:01am
Kovarsky (mail):
I would also like to point out that I called my shot above,

This report is damning of the administration in the extreme, but it provides just enough counterveiling quotables so that administration apologists can get just enough soundbites so that they can rely on their readers not to go read the memo itself. I'm guessing I'll see "the constitution is not a suicide pact" quote over and over again, completely robbed of context.

And I couldn't have asked for a person I would have been more pleased to have fulfill my prophecy:

Lastly, Kris hypothesizes that if a terrorist awaiting instructions by phone to detonate a nuke in Georgetown, then the NSA program could opt out of FISA's procedural standards by satisfying its substantive ones, e.g., probably cause. Kris: "The Constitution is not a suicide pact." To the extent Marty Lederman disagrees with Kris' memo, Kris' memo tends to support the government's argument.
3.10.2006 1:17am
Dave:
Kovarsky,

I agree with you on the substance, but your insults (both in this thread and the previous one) seem uncalled for.

Dave
3.10.2006 1:28am
Dave:
Revision:

I don't think this thread goes too far over the line, and you did make a nice catch with your prediction. The last thread did cross the line.

Dave
3.10.2006 1:30am
Thomasly (mail):
I think Orin has, not surprisingly, read his own conclusions back into David's piece.

David's piece is good, but has real weaknesses. Quickly, they include his all too brief discussion of Hamdi (in which he attempts to distinguish the NSA case, with less than complete success). As I've said before, if one's argument demonstrates that Hamdi was wrongly decided, one should state that plainly, so that readers can understand that any argument based in Hamdi would be unpersuasive.

The core distinction that David offers for the difference between Hamdi and the non-detention act and the NSA case is that the AUMF was passed at the same time as FISA was amended, and that AUMF then must be read in context (meaning historical/legislative context, as in one was passed and then another, perhaps related, was passed). No authority is offered for this proposition, which ends up doing most of the work in the AUMF section. I confess I don't find it very persuasive, in large part because the power claimed for the NSA program is more narrowly targeted than the powers provided by Patriot, and is targeted as described in AUMF.

What is most interesting is that David believes, sensibly, that we don't have enough information to evaluate the Article II arguments. Others haven't been nearly so cautious. This would be a promising development if some of the prominent opponents of the NSA program would take this opportunity to re-engage the arguments on the separation of powers.

Finally, despite suggestions made above, I don't think there's any reason to think of David Kris as a Republican. His service at DOJ, as I understand it, began during the Clinton administration and continued through the first couple of years of the Bush administration. There's no reason for a partisan taint to attach to his comments, one way or the other.
3.10.2006 1:44am
Dave:
kovarsky:

makes sense to me.
3.10.2006 1:58am
Dave:
whoops, I just realized that I put up the wrong link for the article on the Working Group report and Mora. It should be this

Sorry for any confusion.

Dave
3.10.2006 2:02am
Kovarsky (mail):
Thomasly,

Quickly, they include his all too brief discussion of Hamdi (in which he attempts to distinguish the NSA case, with less than complete success). As I've said before, if one's argument demonstrates that Hamdi was wrongly decided, one should state that plainly, so that readers can understand that any argument based in Hamdi would be unpersuasive.

And as Orin, Medis, and others have all explained to you before, the argument is NOT that Hamdi was wrongly decided. The argument is that it does not extend to this context by its own terms. You declined or were unable to answer a detailed, specific response, but if you want to go through the motions I will paste in the specific Hamdi passage that I know you read last time the last time you failed to respond.

The core distinction that David offers for the difference between Hamdi and the non-detention act and the NSA case is that the AUMF was passed at the same time as FISA was amended, and that AUMF then must be read in context (meaning historical/legislative context, as in one was passed and then another, perhaps related, was passed). No authority is offered for this proposition, which ends up doing most of the work in the AUMF section.

Actually no, the point was that the AUMF was passed before USPA was enacted and FISA thereby allegedly amended. Moreover, that is hardly Kris's only point, as he takes great pains - by exploring FISA's text, structure, and statutory history - to explain why the AUMF was neither a FISA-contemplated "exception" or an implied repeal of the exclusivity provision. And, in addition to those arguments, Kris quite correctly notes that construing the AUMF in this manner would fly in the face of traditional canons of statutory interpretations.

What is most interesting is that David believes, sensibly, that we don't have enough information to evaluate the Article II arguments. Others haven't been nearly so cautious. This would be a promising development if some of the prominent opponents of the NSA program would take this opportunity to re-engage the arguments on the separation of powers.

I suppose this is "interesting" to you, but as a number of commentators have pointed out and as I have explained at length above, it is likely incorrect in light of the court's current composition. Some might like to think that the court will suddenly depart from its 25 year trajectory and become pragmatists - and maybe it will - but that's a gambler's bet, not a lawyer's.

Finally, despite suggestions made above, I don't think there's any reason to think of David Kris as a Republican. His service at DOJ, as I understand it, began during the Clinton administration and continued through the first couple of years of the Bush administration. There's no reason for a partisan taint to attach to his comments, one way or the other.

I don't understand why some things have to be so hard. No, I don't think Kris's memo is "tainted." At the same time, what on earth are you doing suggesting the man is not a republican when he was the deputy AG under Bush? I don't have access to the man's voting records, but I'd love to see the basis for your reasoning.
3.10.2006 2:09am
Kovarsky (mail):
Orin,

I've see you've taken my "angry" post down. Fair enough. Sorry.
3.10.2006 2:18am
KMAJ (mail):
Kovarsky,

Why do you try to deny that David Kris is a democrat ? Was he not a Clinton appointee ? Just because he carried over under Bush does not make it less likely. With a majority of the legal profession being democrats and leaning left and the fact another Clinton democrat appointee, Marty Lederman, annoints him, it would probably be a safe bet to assume Kris is a democrat.

It is interesting that noone addresses that the legal profession being left of center would attach a left of center interpetation in their arguments. Congress cannot statutorily legislate away a fundamental incident of war that falls under the executive branch authority without entering a constitutional question that no one has any ruling to cite to uphold their opinion. Sealed Case broached the unconstitutional question without answering it, Hamdi invoked the fundamental incident of war, now while it did not extend their ruling to surveillance, as they was not a question presented in the case, there is no way anyone can read Hamdi to say it excludes surveillance as a fundamental incident of war. Hamdi does validate the AUMF as a war document, thus recognizing the war. Once you recognize the war, all the fundamental incidents of war, not just detention, that are within the scope of the executive branch that are necessary to fight a war come into play. That anyone even attempts to claim intelligence gathering is necessary is to be buried in theory and not reality. I do not think it would be a shock for the court to rule surveillance to be a fundamental incident, and thus the NSA surveillance is constitutional. It is not pragmatism, but realism, that would be the driving force behind such a decision.
3.10.2006 5:56am
Kovarsky (mail):
I did not deny Kris was a democrat. I googled him, looked at his resume, and I couldn't find any info indicating that he was a clinton appointee. He may well have been. I don't infer that hes a democrat on the basis of Lederman knowing him.

I think sometimes my emails are so excessively sarcastic that I obscure real inquiries - anyways, all i wanted was some info that he was a democrat, that's all. based on what i could find he swerved for 8 years in one of the DC divisions, then was appointed at the very end of clinton (2000) for security advice and served as deputy AG for Bush until 2003. I am just saying I have a hard time believing the Bush administration had a democratic deputy AG. I could be wrong, but i am admitting that
3.10.2006 6:20am
Kovarsky (mail):
KMAJ,

I noted that it would be pragmatism in the legalistic sense that the outcome is driven by a pragmatic balance of the security interest versus the liberty interest, not by doctrine or ideology.

Nobody really believes the AUMF argument anymore, really. Can we just stipulate that we're going to let that one go.
3.10.2006 6:23am
Medis:
A couple quick comments on substance:

I agree that with respect to the statutory issue, Kris's memo does a fine job of presenting what I now view as the "standard" argument. Probably most useful is the way in which he identifies and responds to the key arguments in the White Paper.

On the constitutional issue, I guess I see Kris's argument as an extended dodge. As I have noted in the past, I also think it is possible that in certain factual circumstances involving unanticipated emergencies, we might imply a temporary emergency exception into FISA. I actually don't think that requires an Article II argument, however.

In any event, supposing that such an unanticipated emergency existed immediately after 9/11, we know the very last date at which this period could have ended--the passage of the USA-Patriot Act. That, of course, is the inherent weakness of this line of thought: any implied authorization for activities contrary to statute in unanticipated emergencies does not somehow excuse the President from seeking amendments to the relevant statute as soon as possible.

That said, I think I just have a substantive disagreement with Kris over what Congress can do to regulate war. As I have also noted here, I think that if Congress wanted to do so, it could in fact do things like generally prohibit the use of tanks and airplanes. I see no reason to hash those arguments out again, however. Suffice it to say that none of these arguments actually apply to FISA, since FISA does not prohibit electronic surveillance. Rather, FISA falls squarely into the category implied by Kris's example of Congress providing rules for courts-martial.

On a more general point:

Of course, broadly speaking none of this is really new, and obviously the pro-Administration diehards are not going to give up defending the Administration just because yet another person has pointed out the fatal flaws in the Administration's statutory arguments. But I do think this memo is illuminating for the reasons stated by Lederman--it once again gives us some insight into how the "top officials" in the Administration side-stepped any sort of internal check on their exercises of power.

And in that sense, this is yet one more example of how when people talk about deferring to the Executive Branch, with this Administration that does not really mean deferring to the entire Executive Branch including all of the experienced military and legal officials in the Executive Branch with specific expertise related to the relevant issues. Rather, it means deferring to the intuition of a few "top officials" who first decide what they want to do, and who then ask the experts to either justify their decision or get out of the way (and preferably out of the government).

Personally, I think that the very idea of deferring to the Executive Branch loses any pragmatic appeal when that is how the Executive Branch is operating. I have no confidence that such a decision-making process will produce good results, and indeed I think all the historical and empirical work on decision-making suggests that this sort of process is doomed to produce many grave errors. And indeed, I think the track record of this Administration itself provides further confirmation of that proposition.
3.10.2006 8:32am
Just an Observer:
At this point, it seems surreal to devote much attention to the merits of the "legal arguments" advanced by the administration in December and January, or to Kris' contemporaneous critique of those arguments.

We now know:

1) The administration has consistently shrunk from making those arguments in court.

2) No one in Congress believes the AUMF rationalization.

3) The White House now embraces the DeWine approach of new statutory authorization without mandatory judicial review.

Since the administration continues to avoid the courts at all costs, the venue that matters most is Congress, especially the Senate. There, the White House lobbying now seems to be succeeding.

The only legislative proposal that includes any judicial teeth at all is the draft advanced by Specter, which itself embodies broad new authority for surveillance. But Specter seems to have been isolated and marginalized within the Senate GOP. Reportedly, even Graham is now associated with the DeWine/White House "compromise."
3.10.2006 10:07am
Medis:
JaO,

Unfortunately, my sense is that the Republicans in Congress have mostly bought into the notion that the public ties them together with the President, and that there is no way for them to faithfully perform their oversight duties without experiencing the same political fall out.
3.10.2006 10:47am
Houston Lawyer:
It may be my imagination, but I believe that the administration and congress have reached an agreement on how to settle this issue. I don't have an opinion on whether the surveilance program was "constitutional" or illegal, and I sense that the vast majority of the people don't care either. You'd think, from the tenor of the discussion, that all of the other laws and government actions to which we are currently subject are clearly allowed by the Constitution and that this was the first clear transgression thereof.

I think its clear to say that the Administration did not convince congress of the correctness of its position and that congress has exercised its authority accordingly. I think this is a better result than kicking the issue up to the supreme court.
3.10.2006 11:18am
byomtov (mail):
the administration and congress have reached an agreement on how to settle this issue.

To say that two parties have "reached an agreement" is to imply that they were on opposite sides. In fact, all along Republican legislators have simply been looking for a way to cave in to the White House. Roberts needed no excuse. The spineless "moderates" Snowe and Hagel, for all their posturing, just wanted some sort of fig leaf, which this "agreement" is. To avoid having to do something they have set up another committee which will in turn do nothing.

You don't negotiate with your toadies. You give them orders. That's what happened here.
3.10.2006 11:36am
Broncos:
byomtov:

To say that two parties have "reached an agreement" is to imply that they were on opposite sides. In fact, all along Republican legislators have simply been looking for a way to cave in to the White House.


Medis:

Unfortunately, my sense is that the Republicans in Congress have mostly bought into the notion that the public ties them together with the President, and that there is no way for them to faithfully perform their oversight duties without experiencing the same political fall out.


I think that this is correct, and would remain correct if it were a Democrat president and congress. A party's ability/necessity to consolidate power across institutions screws up institutional incentives.

(tangential rant: At best, we can hope for the institutions to be split betweeen parties; a hope most likely to be realized with a plurality of parties. Unfortunately, because the government has legally sufficient interests in a two-party system, this will probably not happen in the near future. So we have people continually thinking in party-v-party rather than institutional terms, and have to live with apologies for Congressional weakness versus the Executive (or strength versus the Judiciary) because it's best for the party - we'll support the party's "smaller" trangressions for its ideologically greater promises. What hooey.)
3.10.2006 12:17pm
Kovarsky (mail):
Houston Lawyer,

I don't think whether most americans "care" or not is a measure whether the program was remotely constitutional. Most americans don't "care" about a lot of things that are nonetheless extraordinarily important.

You'd think, from the tenor of the discussion, that all of the other laws and government actions to which we are currently subject are clearly allowed by the Constitution and that this was the first clear transgression thereof.

What would make you think that, other than the intensity of your disagreement?
3.10.2006 12:20pm
Medis:
Houston Lawyer,

If people don't care, why has the Administration been working so hard to avoid any further investigation?

Broncos,

I absolutely agree. I think the inevitable result of one-party control is always more expensive, more intrusive, more incompetent, more reckless, more abusive, and more corrupt government. Accordingly, I would not want to replace the current situation with a similar situation featuring Democrats. Of course, so far there has been little apparent danger of that, although I do worry that could happen in 2008.
3.10.2006 12:45pm
Bart (mail):
The Kris brief was a very good effort, but has two problems as a source for opponents of the NSA Program.

First, Kris acknowledges that:

The President has clear Article II authority to conduct intelligence gathering against foreign groups and their agents in the United States;

Congress expressly enacted FISA to limit or eliminate the President's constitutional power;

Congress based FISA on the Jackson concurrence to the Young case, but admitted that the Supreme Court may not agree with that citation;

The Jackson concurrence offered a test to resolve conflicts between concurrent constitutional powers to Congress and the President over the same subject matter.

However, Kris cannot cite a single provision of Article I which gives Congress concurrent power over directing and conducting intelligence gathering.

Indeed, assuming that Congress had such a power, Kris gives several examples of why courts are unlikely to hold that Congress may exercise such power to limit or eliminate the President's command authority to use and direct all tools of the military.

While Kris punts on giving an opinion as to whether FISA is unconstitutional as applied to the Presidential intelligence gathering power, he gives a pretty good set of reasons why it would be.

You don't even need to get to the issue of whether the AUMF properly amended FISA to allow warrantless electronic surveillance of al Qaeda and its agents in the US.

Given that he recognizes that FISA may very well be partially unconstitutional, that goes a long way toward explaining Kris also largely punts on Justice's constitutional avoidance argument.

To recap, Justice argues that the AUMF amended FISA to permit the NSA Program. To the extent that there are other interpretations of the AUMF and FISA (like Kris'), then Justice argues that a court should choose its interpretation to avoid having FISA declared totally or partially unconstitutional.

Kris admits that the Justice interpretation of FISA and the AUMF is "not frivilous" and would therefore be plausible, but argues that the Justice interpretation is not as plausible as his own interpretation. That is beside the point. When faced with finding FISA unconstitutional, a court will generally accept any plausible interpretation of the statute to make it constitutional. The constitutional avoidance doctrine would be self defeating if it chose the interpretation sure to find the statute unconstitutional just because that interpretation would be subjectively stronger.
3.10.2006 12:46pm
Steve:
I think Houston Lawyer has a point that this is far from the only controversial government action out there, but I do think this administration tries to avoid judicial review to a rather unprecedented degree.
3.10.2006 12:59pm
cathyf:
There seems to be some confusion about who Kris is advocating for with this memo. According to the emails at epic,
I haven't spoken to Senator Feinstein--she was supposed to call me but hasn't yet--but in the meantime I wrote the attached. It is a VERY rough cut--done quickly, without the facts, and in part while playing with [redacted]. If you or others inside DOJ want to clear up my muddled thinking on any issue, of course I'd be happy to hear your views."
This was prepared for Feinstein, and offered to the DOJ in case they wished to comment. He admits that he doesn't know what the NSA program does, so the only real conclusion that I can see is that if the program described in the NYT is what the government is doing, then the Administration's legal arguments aren't very good. Of course if what we read in the NYT's is merely a product of the NYT's fevered imagination, it's not really surprising that the Administration's legal arguments don't make a compelling case for it.

cathy :-)
3.10.2006 1:20pm
Medis:
Bart,

I think you are misstating the constitutional avoidance doctrine. Kris does a good job of analyzing this issue, but the bottomline is that this doctrine is based on the (somewhat dubious) proposition that Congress would not ordinarily intend to do some unconstitutional. Accordingly, when the intent of Congress is clear--and it is crystal clear that Congress intended FISA to limit the President's "inherent" Article II authority over electronic surveillance--then the doctrine simply has no application.

Incidentally, Kris only lays out hypothetical factual situations in which FISA might be unconstitutional, and then claims that this is a fact-specific inquiry. His first hypothetical is a "ticking time bomb" scenario of the nuclear variety. His second is a counterfactual in which FISA did not have an emergency clause.

It is obvious that the second hypothetical is inapplicable to FISA as written, and so this hypothetical does nothing to support his claim that we need to know more facts. The first hypothetical is a well-worn argument that can be used to justify pretty much anything, and in that sense it is completely unrelated to any specific facts of this case or any relevant legal authorities (including even the Constitution itself, as Kris notes).

So, Kris hasn't done anything to suggest why in the actual facts of this case we have any particular reason to believe that FISA would be unconstitutional. And notably, Kris did NOT endorse the Administration's implicit argument that ANY restriction on their exercise of their "inherent" surveillance powers is unconstitutional. Without endorsing that sweeping argument, it seems to me that Kris is presenting mere idle speculation about hypothetical facts which we know are false or which have no particular bearing on this case.

I don't see how that idle speculation creates a constitutional problem to avoid. And as noted, that is not how the doctrine works anyway.
3.10.2006 1:28pm
Medis:
cathyf,

Kris explains at the beginning of the memo that he is relying on the Administration's own statements (not the NYT) for his general description of the program.
3.10.2006 1:30pm
Broncos:
Sometimes, by myself, late at night, I almost wish that democratic legitimacy required the provision of facts sufficient for an electorate to make informed decision regarding government and liberty.
3.10.2006 1:32pm
Medis:
Bart,

Sorry, I forgot to respond to one point. You say:

"However, Kris cannot cite a single provision of Article I which gives Congress concurrent power over directing and conducting intelligence gathering.

Indeed, assuming that Congress had such a power, Kris gives several examples of why courts are unlikely to hold that Congress may exercise such power to limit or eliminate the President's command authority to use and direct all tools of the military."

To begin, I note your argument depends in part on lumping together "limit" and "eliminate". I have seen this lumping together a lot in pro-Administration arguments, but it should be obvious that those concepts are not identical.

Indeed, consider the passage in Kris's memo were he discussed courts-martial. He notes that the Court has held that the President has the inherent authority under the Commander in Chief clause to convene courts-martial. But he also notes that the Court has held that under the Government and Regulation clause, Congress can mandate standards and procedures for courts-martial, including with respect to the death penalty, and that these rules take precedence over the President's inherent powers.

So, in this example, the Court has allowed Congress to "limit" an inherent Commander in Chief power by providing for standards and procedures that must be followed when that power is exercised. Kris claims, however, that Congress may not be able to completely eliminate the President's power to convene courts-martial.

Similarly, the pro-Administration argument in this case has to go beyond saying that Congress could not "eliminate" the President's ability to conduct electronic surveillance, because obviously FISA does not do that. Rather, that argument has to claim that Congress cannot even "limit" the President's ability to conduct electronic surveillance through any standards or procedures.

As Kris notes, the Supreme Court's case law does not support that proposition. And as I observed, without such a general proposition, and without any specific facts suggesting that FISA as applied is unconstitutional, there is no constitutional problem to avoid.
3.10.2006 1:59pm
Bart (mail):
Medis:

I think you are misstating the constitutional avoidance doctrine. Kris does a good job of analyzing this issue, but the bottomline is that this doctrine is based on the (somewhat dubious) proposition that Congress would not ordinarily intend to do some unconstitutional. Accordingly, when the intent of Congress is clear--and it is crystal clear that Congress intended FISA to limit the President's "inherent" Article II authority over electronic surveillance--then the doctrine simply has no application.

I believe I correctly stated the doctrine as Mr. Kris understands it. Mr. Kris quotes Justice Scalia to say the constitutional avoidance doctrine "is a tool for choosing between competing plausible interpretations of statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts."

I completely agree with you and Mr. Kris that the post-Watergate congress expressly intended to limit or eliminate the President's Article II power to conduct warrantless intelligence collection against foreign groups and their agents in the US.

However, I believe the interpretation at issue is of the AUMF and whether it operates to amend and take off the leashes of FISA. Given the utter lack of congressional commentary on the issue of intelligence collection at the time the AUMF was debated and the results of the Hamdi case, Justice's interpretation is at the very least plausible, if not an outright winner.

So, Kris hasn't done anything to suggest why in the actual facts of this case we have any particular reason to believe that FISA would be unconstitutional.

Kris is ducking the issue. Thanks to the NYT blowing the program, we have a good idea of what is going on - The NSA is monitoring international communications which go through telephone line hubs in the US where one end is in the US and one end of the communication is a number captured from al Qaeda in the US or overseas.

And notably, Kris did NOT endorse the Administration's implicit argument that ANY restriction on their exercise of their "inherent" surveillance powers is unconstitutional. Without endorsing that sweeping argument, it seems to me that Kris is presenting mere idle speculation about hypothetical facts which we know are false or which have no particular bearing on this case.

Kris cited to the case law which was applicable to the facts as we know them in order to find that the President had Article II power to enact this program. Where Kris pulled back was on giving an opinion as to whether this power is plenary as Justice argues. However, by correctly observing that the Jackson test in Young requires finding a countervailing Congressional Article I power and by failing to offer such a power, the result is the same.

To begin, I note your argument depends in part on lumping together "limit" and "eliminate". I have seen this lumping together a lot in pro-Administration arguments, but it should be obvious that those concepts are not identical.

I agree. I use those terms intentionally.

If the NSA program is subject to FISA, at the very least the program is then limited to situations where the NSA can offer probable cause to believe one of the statute's requirements are present.

However, it is my understanding from the news leaks that the NSA usually starts off with just a telephone number captured from al Qaeda and nothing else. I do not believe mere possession of a telephone number by al Qaeda amounts to probable cause that the user of the number is an al Qaeda agent. It could be a number to a falafel maker. The NSA needs to listen to the number to develop the evidence to make that determination. Therefore, FISA would arguably eliminate the Presidents power to enact this program.

In either case, unless Congress can point to an Article I power which allows them to limit or eliminate the President's recognized Article II power, FISA is unconstitutional as applied to the NSA Program.
3.10.2006 3:51pm
KMAJ (mail):
Medis,

Just for arguments sake, doesn't a reasonableness standard apply ? If the executive makes the case that FISA does create a hindrance to carrying out its constitutional authority, to protect and defend ... against all enemies foreign and domestic, in an effective and efficient manner, especially in wartime, that constitutional limitations can also be applied to what Congress may or may not do by statutory imposition ?

The 'suicide pact' talking point, while overly theatrical, is a relevant factor in any decision/ruling to be arrived at. The only way for it not to have some weight, I don't seek to define how much weight it should have, would be to approach it from the law existing in a vacuum perspective and that law is to be interpreted in a fixed straight line way, with no pendular motion/deviation to the left or right.

Courts have, throughout history, reversed course and overturned precedence, why does that possibility seem to be a foreign concept to this issue ? The left leaning jurisprudence, that has ruled the judicial system since FDR, reversed and overturned many decisions that preceded it. It seems the case against relies heavily on the post FDR jurisprudence without acknowledging that a similar shift could result in reversing and/or overturning, even redefining, some of those rulings.
3.10.2006 3:54pm
Just an Observer:
KMAJ: Courts have, throughout history, reversed course and overturned precedence, why does that possibility seem to be a foreign concept to this issue ?

Again, you have no credibility hypothesizing about what the courts might do, since the President whose cause you champion refuses to submit his arguments to the courts!

If Bush's "legal" arguments have merit, all the President has to do is bring a test case and vindicate them. Since he refuses to do so, and you support that refusal, you are just blowing smoke. Again.
3.10.2006 4:08pm
Bart (mail):
Just an Observer:

If Bush's "legal" arguments have merit, all the President has to do is bring a test case and vindicate them. Since he refuses to do so, and you support that refusal, you are just blowing smoke. Again.

The federal courts do not offer advisory opinions when a politician wants a legal issue settled. Rather, there has to be a case in controversy brought by a party harmed by the NSA program.

This is possible on one of the appeals being filed on behalf of a variety of convicted terrorists or terrorist supporters.
3.10.2006 4:12pm
KMAJ (mail):
JaO,

Ad hominem again. Tsk, tsk. Your position of 'you have to satisfy me and submit to what I think is right' to have any credibility is a pretty lame argument. It is not the executive branches responsibility to 'create' a test case to satisfy you or any group of individuals. That is simply partisan political posturing and can not be found, nor is it required, anywhere in the Constitution.
3.10.2006 4:29pm
Just an Observer:
Bart,

The road to a potential test case in this matter has been well established. No "advisory opinion" is involved.

1) The DOJ, which has standing in the FISA courts, can simply apply for one or more FISA warrants based upon information derived from the prior warrantless surveillance purported to be lawful.

2) If the lower FISC court agrees with the government, that is all there is to it. The government would win.

3) But if the FISC court rejects the application(s) because it finds the prior surveillance unlawful, that rejection would be reviewable by the appellate FISCR court. The FISCR ruling, in turn would be reviewable by SCOTUS.

In fact, DOJ has shrunk from bringing such a case, even though such a set of circumstances arises several times a year, according to the Washington Post. Instead, Justice applies for such warrants only when it can certify to the chief judge of FISC that independent information untainted by prior warrantless surveillance supports the application.

The reason for such an ex parte end-run, according to the Post, has been that both the chief FISC judge and the line official from the DOJ administering FISA warrants have expected that the government likely would not succeed in an actual case.

If Alberto Gonzales is willing to make a legal case, all he has to do is bring the case and tell it to the judge. Instead, he issued a 42-page press release.
3.10.2006 4:38pm
Just an Observer:
KMAJ,

Again, while we are here in the Court of Public Opinion --the only court where Bush and his supporters will show up to play -- the President's credibility is impeached by his failure to make his "legal" arguments in a court of law. That is where such arguments get settled.

And when you again refuse to support judicial review of the merits, you undermine your own credibility in trying to raise such issues here. You forfeited that one.
3.10.2006 4:46pm
Bart (mail):
Just an Observer:

The FISA court does not have jurisdiction to rule on the constitutionality of the NSA Program. Their limited mandate under FISA is to grant warrants. They are not a normal Article III court.

This is why Specter is attempting to amend FISA to give them this power. This amendment is questionable because it arguably violates the cases in controversy requirement and asks for an advisory opinion.

Even if the FISA court were given this power and ruled in your favor, the FISA court of review has made it clear that they would hold that FISA does not extend to the President's Article II power.

Oversight is the role of Congress, not the courts. The courts resolve cases in controversy brought by citizens who have actually been harmed in some way.

Your problem is that almost no one in Congress believes that this program is illegal or should be stopped. Thus, you want to create some case in court where none exists in the hope of getting a favorable ruling.
3.10.2006 5:07pm
KMAJ (mail):
JaO,

Sorry, but I refuse to accede to your attempt to frame the parameters of the debate to your liking. Your petulant attitude that feeds your need for ad hominem does not elevate your own credibility. Your position elevates the judicial branch to superior status, something NEVER intended by the Founding Fathers and would require the populace to subvert their will to a left leaning legal profession. Pardon me if I take a pass on your generous offer to be ruled over by lawyers.
3.10.2006 5:11pm
Bart (mail):
Sorry, but I refuse to accede to your attempt to frame the parameters of the debate to your liking. Your petulant attitude that feeds your need for ad hominem does not elevate your own credibility. Your position elevates the judicial branch to superior status, something NEVER intended by the Founding Fathers and would require the populace to subvert their will to a left leaning legal profession. Pardon me if I take a pass on your generous offer to be ruled over by lawyers.

:::heh:::

Now you tell me after I spent the money to go to law school and join the ruling class...
3.10.2006 5:27pm
Broncos:

Your position elevates the judicial branch to superior status, something NEVER intended by the Founding Fathers and would require the populace to subvert their will to a left leaning legal profession. Pardon me if I take a pass on your generous offer to be ruled over by lawyers.


Agreed. The Framers NEVER intended the legality of Executive action to be determined by persons trained in law: To do so they would have had to create an open and transparent governmental institution dedicated to such work; and the submission of such questions to this institution would strike a serious blow at the theory of democracy to which they were committed. (Although I do seem to remember an early activist Supreme Court that asserted the authority to issue a writ of mandamus to the Executive in breach of its legal duty... Marbury v. Madison. But that activist judge certainly had no idea of what the Framers intended.)

Instead, the Framers depended upon the populace to constrain secret Executive surveillance, whilst depriving them of Legislative action that unduly encroaches upon the singular military authority they happily entrusted to the Executive's perogative.
3.10.2006 5:34pm
Just an Observer:
Bart: The FISA court does not have jurisdiction to rule on the constitutionality of the NSA Program. Their limited mandate under FISA is to grant warrants. They are not a normal Article III court.

You are quite wrong.

The FISA courts have limited jurisdiction, but they are Article III courts. The judges are lifetime-tenured U.S. District judges appointed to these roles by the Chief Justice of the United States. They have not only the right but the duty to interpret and apply the Constitution and applicable statutes. And they certainly have the power to govern their own procedures for granting FISA warrants.

The appellate procedure is outlined in FISA, and there is even precedent, In Re Sealed Case in 2002, for opposing briefs by third parties at the appellate level.

What Specter's legislation would do would be to require judicial review whether Bush likes it or not. Before he drafted that bill, he challenged Gonzales to submit to review voluntarily. In fact, such review could have been initiated voluntarily by DOJ at any time, and still could be.

But the administration lawyers are afraid to play in the courts. Alberto Gonzales can count to nine, and he knows he would lose.
3.10.2006 5:35pm
Broncos:
perogative oops.
3.10.2006 5:47pm
Kovarsky (mail):
Bart,

I keep seeing your bizarre interpretations of the law, I keep meaning to respond to them, but then I see that JAO quite succinctly responded to the most obvious problems.

The FISA court does not have jurisdiction to rule on the constitutionality of the NSA Program. Their limited mandate under FISA is to grant warrants. They are not a normal Article III court.

Wrong. It is an article III court with limited subject matter jurisdiction. Once it has jurisdiction over the subject matter, it can make any ruling it wants, including the unconstitutionality of a statute implicated in consideration of that subject matter. Nobody seriously disputes that FISC could declare FISA unconstitutional were it presented with that opportunity where, say, the DOJ sought a FISA warrant expressly relying on NSA "terrorist surveillance program" information. And, as JAO explains, that determination is reviewable by FISCR, and then by the Supreme Court.

This is why Specter is attempting to amend FISA to give them this power. This amendment is questionable because it arguably violates the cases in controversy requirement and asks for an advisory opinion.

Incorrect. Specter's amendment might well violate the C&C requirement, but it is not "because" FISC is not a "normal" article III court and could not adjudicate the constitutionality of FISA. The two propositions are completely unconnected. In fact, Specter's proposal is animated by the realization that although FISC can adjudicate FISA's constitutionality, it is unlikely to be able to do so given that the steps the DOJ may take to evade such review are part of standard operating procedure: don't use (or acknowledge use of) NSA information as the source of a FISA warrant application.

Even if the FISA court were given this power and ruled in your favor, the FISA court of review has made it clear that they would hold that FISA does not extend to the President's Article II power.

In re Sealed case is not "clear," no matter what you might think. I also think you are conveniently asserting that "even if review is to be had, FISCR precedent favors the government's position." Well, I'm not sure why you truncate your analysis to the FISCR court. The Supreme Court reviews that decision, and its precedent points quite markedly in the other direction.

Oversight is the role of Congress, not the courts. The courts resolve cases in controversy brought by citizens who have actually been harmed in some way.

Or a special prosecutor. Not to mention that there are plenty of people "actually harmed," they just don't know who they are because the administration does not reveal in what contexts it uses the information it acquires through the program. There is quite a difference between a controversy that is universally nonjusticiable because there is no localised injury, and a controversy that is nonjusticiable only so long as the government may conceal the identity of the injured parties.

Your problem is that almost no one in Congress believes that this program is illegal or should be stopped. Thus, you want to create some case in court where none exists in the hope of getting a favorable ruling.

This is absurd. A significant majority of Congress thought the program was illegal. I think you are sort of clumsily highlighting the "compromise" as evidence that the parties to it never thought the program was unconstitutional. You are confusing the issue of republican consensus on the congressional remedy with whether or not the administrated violated the right in the first place. Congress seems to have agreed to (1) approve the program going forward, and (2) not to be willing to aid judicial consideration of the program before it was authorized. To present this "compromise" as some sort of congressional conclusion that the program was constitutional the whole time is borderline delusional.
3.10.2006 6:16pm
Bart (mail):
Just an observer:

Bart: The FISA court does not have jurisdiction to rule on the constitutionality of the NSA Program. Their limited mandate under FISA is to grant warrants. They are not a normal Article III court.

You are quite wrong...They have not only the right but the duty to interpret and apply the Constitution and applicable statutes. And they certainly have the power to govern their own procedures for granting FISA warrants.


Have you even read the statute?


ยง 1803. Designation of judges

(a) Court to hear applications and grant orders; record of denial; transmittal to court of review

The Chief Justice of the United States shall publicly designate 11 district court judges from seven of the United States judicial circuits of whom no fewer than 3 shall reside within 20 miles of the District of Columbia who shall constitute a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States under the procedures set forth in this chapter...


The FISA Court may only determine whether a Justice application for a warrant meets the requirements of Title 50, Chapter 36. The Court has absolutely no authority under FISA to make rulings on the constitutionality of any action of the Executive.

If the FISA court cannot render such a ruling, the FISA court of review will never get the issue.

For example, let's say the FISA court denies a warrant application for the surveillance of a telephone number captured from al Qaeda because Justice lacks probable cause to believe that the user of that number is an al Qaeda agent and not just a falafel maker. They are not ruling on the constitutionality of such surveillance without a warrant. The court is only saying that the Justice application doesn't meet FISA requirements.

The constitutionality issue cannot come up on appeal if the lower court never ruled on it. The Court of Review can only decide whether or not the lower court properly denied the warrant under the rules FISA sets forth. The issue of whether FISA is constitutional never comes up.

Specter legislation will give the FISA court the ability to decide whether an intelligence program is constitutional. However, I do not see how Congress can enact a statute to give the FISA court advisory opinion powers which are not authorized by Article III of the Constitution.
3.10.2006 6:25pm
Just an Observer:
Bart,

You miss the point. If prior NSA surveillance is used as justification for a new FISA warrant, the legality of that surveillance then is fair game for the FISA court to consider. (Similarly, the court could reject a warrant application if it was based on information from illegal black-bag burglaries, perjury or torture.)

If the FISC court rejects such a warrant application on the grounds that the information on which it was based is determined to be illegally derived, that determination would be the question to be determined in the appeal.
3.10.2006 6:34pm
Tom Holsinger (mail):
cathyf hit on the main point - we don't know what this NSA surveillance program st issue really is. The whole discussion is hypothetical.

Worse, it is clear that there are many different NSA surveillance programs going on, some of which doubtless overlap.

Until we more or less agree with each other, and the writers cited, as to which NSA program we're talking about and what it consists of, I don't see this discussion having significant value.
3.10.2006 7:02pm
Bart (mail):
Just an observer:

You miss the point. If prior NSA surveillance is used as justification for a new FISA warrant, the legality of that surveillance then is fair game for the FISA court to consider.

Actually, this is a completely new and interesting argument.

Given that the FISA statute does not enforce purport to enforce the 4th Amendment nor authorize the FISA court to do anything other than decide whether an application comports with the FISA standards, I still don't see how the FISA court gets to rule on this issue. More likely, this issue would be decided before a federal district court in an exclusionary motion before a criminal trial.

If the FISC court rejects such a warrant application on the grounds that the information on which it was based is determined to be illegally derived, that determination would be the question to be determined in the appeal.

Actually, I would think the FISA court of review would simply reverse the FISA court opinion on the Constitution for lack of jurisdiction and remand the application for review under the FISA statute.
3.10.2006 7:05pm
Broncos:

Until we more or less agree with each other, and the writers cited, as to which NSA program we're talking about and what it consists of, I don't see this discussion having significant value.

I agree that an absence of knowledge regarding what the government does limits the ability to agree upon the legality of what the government does.

But when faced with secret governmental action, public discussion of hypotheticals is helpful to (1) draw out which facts citizens need to know; and (2) agree upon how the debate will be framed once the requisite facts are made public.
3.10.2006 7:18pm
minnie:
JAO and Medis: Did you see the headline today about Sandra Day O'Conner's comments in a recent speech at Georgetown, in which she focuses on the role of the judiciary, attacks the GOP attempts to pervert the process, and suggests that we are seeing the "beginnings of a dictatorship" in this country. Her main point? Resist the beginnings, which just happens to be one of my mottos.

The "swiftboating" of Justice O'Conner has already started on many sites and I imagine there will be a good deal of that at this site, but you should read the article at Huffington Post which covers SDO's amazing speech.
3.10.2006 7:22pm
Tom Holsinger (mail):
Broncos,

I tried to limit some NSA discussions to domestic surveillance, and exclude foreign aka international surveillance, as the latter is excluded by FISA and it is domestic surveilllance which has the most potential for abuse. The other posters would have none of it - they wanted to discuss foreign surveillance.

So I'm falling back on "Show Me The Money!" - I want them to define the surveillance they're talking about, and explain how that is what the legal writers are talking about too. I doubt they want to go there either, though.

At some point I will give up. I'm not there yet.
3.10.2006 7:27pm
Kovarsky (mail):
Bart,

Actually, this is a completely new and interesting argument.

It is not new. It was in several places on the thread before your last post:

from JaO, prior to your post:

The road to a potential test case in this matter has been well established. No "advisory opinion" is involved.

1) The DOJ, which has standing in the FISA courts, can simply apply for one or more FISA warrants based upon information derived from the prior warrantless surveillance purported to be lawful.

2) If the lower FISC court agrees with the government, that is all there is to it. The government would win.

3) But if the FISC court rejects the application(s) because it finds the prior surveillance unlawful, that rejection would be reviewable by the appellate FISCR court. The FISCR ruling, in turn would be reviewable by SCOTUS.


from me, prior to your post:

It is an article III court with limited subject matter jurisdiction. Once it has jurisdiction over the subject matter, it can make any ruling it wants, including the unconstitutionality of a statute implicated in consideration of that subject matter. Nobody seriously disputes that FISC could declare FISA unconstitutional were it presented with that opportunity where, say, the DOJ sought a FISA warrant expressly relying on NSA "terrorist surveillance program" information. And, as JAO explains, that determination is reviewable by FISCR, and then by the Supreme Court.

And on the substance of your response...

Given that the FISA statute does not enforce purport to enforce the 4th Amendment nor authorize the FISA court to do anything other than decide whether an application comports with the FISA standards, I still don't see how the FISA court gets to rule on this issue. More likely, this issue would be decided before a federal district court in an exclusionary motion before a criminal trial.

The case would not be dismissed before the FISA court and brought before the district court because the district court does not have jurisdiction over FISA warrants. Moreover, it doesn't matter whether FISA said "you have the jurisdiction to avoid violating constitutional rights." That's implicit in every grant of authority, to any government body. This issue is not subject to serious debate; it is a constitutional fact of article III jurisdiction.

Actually, I would think the FISA court of review would simply reverse the FISA court opinion on the Constitution for lack of jurisdiction and remand the application for review under the FISA statute.

This doesn't the make much sense in light of what you noted above, which is that FISCR has, in In re Sealed Case, ruled on several constitutional issues. But that's giving the argument too much credit. If your proposition above is incorrect, then it follows that this one is as well.
3.10.2006 7:32pm
Just an Observer:
Bart: Actually, this is a completely new and interesting argument.

Completely new to you, obviously -- but not to those who have followed the NSA controversy closely.

This legal scenario was explored pretty thoroughly about a month ago in prior threads here, and here. These threads were prompted by revelations in the Washington Post. See also posts by Hugh Hewitt on his blog.
3.10.2006 7:43pm
Just an Observer:
BTW, there are motions for partial summary judgment by the major civil plaintiffs, according to SCOTUSblog: Early ruling on spying?

I still think these plaintiffs are swimming uphill due to issues with standing, but the cases are worth watching.
3.10.2006 7:58pm
Bart (mail):
Kovarsky:


Bart: Actually, this is a completely new and interesting argument.

It is not new. It was in several places on the thread before your last post.



I am only responding to arguments posed to me. I was writing from work and not plowing through all the threads here. This was the first time this argument was posed to me.


And on the substance of your response...

Bart: Given that the FISA statute does not enforce purport to enforce the 4th Amendment nor authorize the FISA court to do anything other than decide whether an application comports with the FISA standards, I still don't see how the FISA court gets to rule on this issue. More likely, this issue would be decided before a federal district court in an exclusionary motion before a criminal trial.

Kovartny: The case would not be dismissed before the FISA court and brought before the district court because the district court does not have jurisdiction over FISA warrants.


You misunderstand. If the target of the surveillance whose rights were allegedly violated was charged with a crime before a district court, he or she would then properly raise this issue in a motion to suppress.


Moreover, it doesn't matter whether FISA said "you have the jurisdiction to avoid violating constitutional rights." That's implicit in every grant of authority, to any government body. This issue is not subject to serious debate; it is a constitutional fact of article III jurisdiction.


Show me the case law where the FISA court of admittedly limited jurisdiction has this power. It sure is not in the statute.


The... FISCR has, in In re Sealed Case, ruled on several constitutional issues. But that's giving the argument too much credit. If your proposition above is incorrect, then it follows that this one is as well.


In In re Sealed Case, the FISA court entered an limiting order against Justice without giving a reason why. The FISA Court of Review held that the limiting order was nor justified under FISA or the Patriot Act. The constitutional argument which the Court of Review considered was the Government's new claim that the FISA court itself exceeded its constitutional authority.

In re Sealed Case does not consider nor decide your claim that the FISA court has implied jurisdiction to rule on the constitutionality of FISA itself under Article I or of the intelligence gathering of the Executive under Article II and the 4th Amendment.
3.10.2006 8:13pm
Tom Holsinger (mail):
JAO,

As a summary judgment specialist, I assure you that the moving parties in your link have failed to show the absence of triable disputes. I gave the cite in another post for a pre-FISA surveillance case where the plaintiff did win summary judgment. I no longer have the cite, but I do recall that the Detroit attorney plaintiff in that case presented specific admissible evidence of specific instances of electronic surveillance of his communications to and from Syria.

The plaintiffs in the case you give a news story link to seem to have only speculative evidence. That does not meet the smj burden of showing the absence of triable disputes of material fact.
3.10.2006 8:15pm
Bart (mail):

BTW, there are motions for partial summary judgment by the major civil plaintiffs, according to SCOTUSblog: Early ruling on spying?


This is desperation to get a ruling before the Congress ratifies the program before the fall elections and the plaintiffs face both standing and mootness problems...
3.10.2006 8:15pm
Kovarsky (mail):
Bart,

You misunderstand. If the target of the surveillance whose rights were allegedly violated was charged with a crime before a district court, he or she would then properly raise this issue in a motion to suppress.

Of course, if the U.S. government were seeking to admit evidence in criminal proceedings against these people. But that's not what we're talking about. Your implied that if constitutionality became an issue, the FISA court might dismiss it and send it to district court. My point is that the district court cannot issue a FISA warrant, which is a completely different situation. And just as the district court could adjudicate the constitutionality of the evidence introduced in a criminal proceeding, the FISA court can adjudicate the constitutionality of admitting evidence for the purposes of securing a FISA warrant. I think perhaps you are misunderstanding about what the FISA court does. It issues warrants. It does not convict people of crimes. If the target of the surveillance were prosecuted, of course the constitutionality of evidence from the NSA program would be scrutinized. But we're not talking about prosecutions in district courts here.

Show me the case law where the FISA court of admittedly limited jurisdiction has this power. It sure is not in the statute.

I'm sorry, but you show me the case where it does, given the presumption (I'm being nice, it's a requirement) that an article 3 court can adjudicate the constitutionality of subject matter before it. There is simply no grant of jurisdictional authority that you hypothesize. Article III courts are not told "ok, you can adjudicate this subject matter, but you can't decide certain constitutional claims about it."

As for an example of where an Article III court decides issues ancillary to express jurisdictional authorization, look at the federal circuit which has, for example, adjudicated whether abandoned patent applications may constitutionally be the subject of compelled production under the Freedom information act. That's just one example; it happens all the time.

I think maybe I'm making your argument for you at this point, but your claim is better stated not in terms of whether FISC can consider the constitutionality of 4th amendment claims, but whether it can consider the constitutionality of the act that created it. But you seem to distinguish that claim from the one you are trying to make here:

the constitutional argument which the Court of Review considered was the Government's new claim that the FISA court itself exceeded its constitutional authority.

I guess I'm not really understanding what you're saying at this point. Are you saying

(1) FISC cannot consider the constitutionality of the NSA program - at least as applied - if the standing requiremetns were met? That is flat out incorrect, and you won't be able to find a legal source supporting that argument.

(2) FISC OR FISCR cannot consider FISA's constitutionality because standing requirements to make that claim cannot be met; or

(3) FISC or FISCR cannot consider FISA's constitutionality because there is no extant jurisdictionaly grant to do so.

Maybe I'm just confused on your point, but if you could identify which of these claims you're talking about, I could try to respond more effectively.
3.10.2006 8:54pm
Bart (mail):
Kovartny:


Bart: You misunderstand. If the target of the surveillance whose rights were allegedly violated was charged with a crime before a district court, he or she would then properly raise this issue in a motion to suppress.

Of course, if the U.S. government were seeking to admit evidence in criminal proceedings against these people. But that's not what we're talking about.


It is what I am talking about. Given that it is my statement that you are parsing to death, my intent is all that matters.


My point is that the district court cannot issue a FISA warrant, which is a completely different situation.


I agree. I never implied otherwise.


And just as the district court could adjudicate the constitutionality of the evidence introduced in a criminal proceeding, the FISA court can adjudicate the constitutionality of admitting evidence for the purposes of securing a FISA warrant.



OK, putting aside for the moment your subject matter jursidiction problems, exactly why would the FISA court apply the constitution?

The federal courts of appeal have already repeatedly held that the 4th Amendment does not apply to foreign surveillance. The Congress made it very clear that FISA is meant to apply to foreign surveillance. Therefore, the FISA court is never faced with a 4th Amendment issue. Exactly what other constitutional issues do you foresee coming up in a FISA warrant hearing. No other part of the Constitution deals with warrants.


I think perhaps you are misunderstanding about what the FISA court does. It issues warrants. It does not convict people of crimes. If the target of the surveillance were prosecuted, of course the constitutionality of evidence from the NSA program would be scrutinized. But we're not talking about prosecutions in district courts here.


I am because that is the only realistic venue for the constitutional power issues surrounding FISA and the NSA Program to come under judicial review.


Bart: Show me the case law where the FISA court of admittedly limited jurisdiction has this power. It sure is not in the statute.

I'm sorry, but you show me the case where it does...


You are making the assertion. Prove it or concede the point.


it's a requirement) that an article 3 court can adjudicate the constitutionality of subject matter before it.


First, for the sake of argument, exactly what Constitutional issue would come before the FISA court concerning a FISA warrant? As I pointed out above, the 4th Amendment is the only provision requiring warrants and it has an exception for the foreign surveillance covered by FISA.

The separation of powers issues raised by the application of FISA to the NSA program simply do not arise.

If the executive doesn't think FISA applies, it doesn't ask for a warrant and the FISA court never gets the case. Rather, the target of the warrantless search would either have to file for an injunction to stop the search or, if already charged with a crime, file a motion to suppress the illegally obtained evidence. At that point, the power issues can be litigated.

If the executive submits an application to FISA, it is conceding the jurisdiction of the FISA court and again there is no power issue. You can't file an application, then say you don't want to file the application and then ask the FISA court to rule on whether you have to file the application. You are asking of an advisory opinion which is not necessary to ruling on the warrant application.


Bart: the constitutional argument which the Court of Review considered was the Government's new claim that the FISA court itself exceeded its constitutional authority.

I guess I'm not really understanding what you're saying at this point. Are you saying


In deciding whether the FISA court properly instituted its order of limitation, the court of review can consider whether the FISA court exceeded its constitutional as well as statutory power. This does not mean that the FISA court of review and go further and rule on the separation of power issues between Congress and the President. In short, the In re Sealed Case is not authority for your argument as you stated.
3.10.2006 10:10pm
Kovarsky (mail):
Bart,

First, for the sake of argument, exactly what Constitutional issue would come before the FISA court concerning a FISA warrant? As I pointed out above, the 4th Amendment is the only provision requiring warrants and it has an exception for the foreign surveillance covered by FISA.

You have pointed that out above, and you were incorrect there too. The 4th amendment applies to any government action. The exclusionary rule is a remedy for violation of that Amendment. I think you are mixing up the issue of whether the 4th amendment applies at all with the issue of whether it always requires a warrant or always requires probable cause. Certain cases acknowledge that the 4th amendment might not require a warrant, or that some quantum of suspicion below probably cause may be enough to satisfy it's strictures, but you are simply misunderstanding the cases if you are reading them as saying the 4th amendment does not apply to US citizens. Of course to the extent those cases say the 4th amendment "doesn't apply to international communications," it means that it does not attach to the rights of noncitizens.

This is getting a little tiresome. You continue to speculate that the FISA court cannot rule onw whether certain surveillance may be excluded for the purposes of securing a warrant. In fact, auditing FISA warrants for their statutory and constitutional sufficiency is WHAT THE FISA COURT IS FOR.

I refuse to play this little game with where, after I point out that your assertion that the earth is flat is incorrect and you demand that I take the time to go hunt down evidence that it is round otherwise "I concede the point." Go to any treatise on article III jurisdiction or to constitutional law textbook, if you are a law student. I'm not going to take the time to disprove a your bizarre and idiosyncratic theory of article III authority.

By the way:

It is what I am talking about. Given that it is my statement that you are parsing to death, my intent is all that matters.

I don't get it. I'm supposed to have any idea what you "intended" beyond what you wrote?

finally:

If the executive submits an application to FISA, it is conceding the jurisdiction of the FISA court and again there is no power issue. You can't file an application, then say you don't want to file the application and then ask the FISA court to rule on whether you have to file the application. You are asking of an advisory opinion which is not necessary to ruling on the warrant application.

Dude, what power issue are you talking about? I would agree that its disingenuous for the DOJ to submit a warrant request to FISA and if it gets a disfavored outcome then proceeding to challenge the Act's constitutionality. I think it's dirty, but any party with standing to participate in the dispute can raise a constitutional claim. But I don't even know why we're talking about this, because I've never suggested that I thought FISC could adjudicate its own constitutionality. I said they could adjudicate the constitutionality of the NSA program if someone had standing to challenge it. In Re sealed case talk about whether national security could override statutorily imposed warrant requirements. It just doesn't say anything about FISC's JURISDICTION to rule. And this strange notion you have that a grant of article III subject matter jurisdiction over a set of case and controversies somehow not including a grant to adjudicate the constitutional questions in those controversies - well, you asked for an example, I gave you one, and you just ignored it.

I understand that you seem to feel really strongly about this issue. And it may be the case, although unlikely, that the NSA program is constitutional under either the AUMF or Article II, nobody, and I mean not even the administration, suggests that FISC doesn't have "jurisdiction" to apply the exclusionary rule to its warrants.

Since your "intent" is what matters here, I'm groping to try to figure out what argument you may have misinterpreted. I'm guessing that you are perhaps mixing up the idea that FISC itself might be an unconstitutionally constituted court. Under those circumstances, it would not be entitled to employ the exclusionary rule - or do anything else. But that argument says that the jurisdictional grant was unconstitutional, not that an otherwise constitutional grant of article III authority over limited subject matter must expressly include an authority to decide constitutioanl issues.

Forget for a minute that Congress can't say to an article III court - "Do this stuff, but don't consider constitutional issues." Even if we assume that the statutory grant of authority magically limits the authority to adjudicate constitutional issues, that wouldn't even be the case here because the statutory grant to "hear applications and grant orders" for warrants IS the operative statutory language for conferring authority to determine admissibility under the exclusionary rule.
3.10.2006 10:50pm
Kovarsky (mail):
The powers of editorialisation:

This is desperation to get a ruling before the Congress ratifies the program before the fall elections and the plaintiffs face both standing and mootness problems...

or

It's a heroic attempt to vindicate the rights of the American people before a partisan compromise slams the door on that possibility by legislating away standing requirements.
3.10.2006 11:43pm
Tom Holsinger (mail):
Bart,

The smj motion in ACLU v. NSA is a discovery vehicle, not a real attempt to win. The ACLU is just trying to get the government to submit opposing evidence that they might be able piggy-back on for discovery.
3.11.2006 12:10am
Medis:
Bart,

Getting back to an older point, again, I believe you and the DOJ are clearly misapplying the avoidance doctrine. The "exclusive means" language is in 18 USC 2511(2)(f). The congressional intent behind this provision, as Kris and others have observed, is clear: Congress intended to limit the President's power to conduct electronic surveillance.

Your argument seems to be that if 18 USC 2511(2)(f) was applied as Congress intended, then there would be a serious question about its constitutionality (although personally I think that premise is wrong). Accordingly, you seem to be saying, the 2001 AUMF should be interpreted as somehow amending 18 USC 2511(2)(f) in order to avoid this constitutional problem.

Again, that is not how the doctrine works. The courts will not interpret another statute as amending a previous statute simply because the previous statute might be unconstitutional. Rather, if Congress's intent in passing the first statute is clear, and if Congress did not have a clear intent to amend that statute in the later statute, then there is no application for the doctrine. That is because there is no reason to believe that the original intent of Congress as embodied in the original statute does not still apply.

As for the enumerated Article I power: the most obvious clause is the one Kris did in fact cite, the Government and Regulation clause. The NSA is part of the DOD, and FISA as applied to the NSA is a rule governing the NSA.
3.11.2006 1:17am
Kovarsky (mail):
Medis,

I would go even further than you are with the 2511(2)(f) argument. The presumption against implied repeal is a ordinarily a canon of construction, not a substantive rule. But 2511(2)(f) operates to transform what is traditionally just an interpretive rule into a substantive one that says not only does there have to be intent to alter FISA, but effectively that, "we don't intend this rule to be subject to the ordinary indicia of statutory meaning - in order to change FISA you have to expressly amend it by statute."

I think this is a particularly viable reading in light of the less stringent requirements for discharging criminal liability with subsequent statutes under 1809.
3.11.2006 2:07am
Kovarsky (mail):
By the way, re: my exchange with Bart, AEDPA is one area where Congress has simultaneously made a jurisdictional grant and restricted review of constitutional claims. And, for Bart's purposes, that should be very illustrative of what a jurisdictional grant would look like if it indeed attempted to restrict adjudication on the merits of constitutional claims.
3.11.2006 2:38am
Just an Observer:
A curious development from today's NYT: Judge Issues Secret Ruling in Case of 2 at Mosque

A federal judge issued a highly unusual classified ruling yesterday, denying a motion for dismissal of a case against two leaders of an Albany mosque who are accused of laundering money in a federal terrorism sting operation.

Because the ruling was classified, the defense lawyers were barred from reading why the judge decided that way.

The defense lawyers had asked the judge to dismiss the case, saying that they believed the government's evidence came from wiretaps obtained without a warrant by the National Security Agency.
3.11.2006 9:55am
Bart (mail):
Kovarsky:


Bart: If the executive submits an application to FISA, it is conceding the jurisdiction of the FISA court and again there is no power issue. You can't file an application, then say you don't want to file the application and then ask the FISA court to rule on whether you have to file the application. You are asking of an advisory opinion which is not necessary to ruling on the warrant application.

Dude, what power issue are you talking about?


The constitutional issue which Kris' memo addressed is a separation of powers matter - whether Congress has the Article I power to enact FISA for the purpose of limiting or eliminating the President's recognized Article II power as CiC to direct and conduct intelligence gathering against foreign groups and their agents in the United States.


I would agree that its disingenuous for the DOJ to submit a warrant request to FISA and if it gets a disfavored outcome then proceeding to challenge the Act's constitutionality. I think it's dirty, but any party with standing to participate in the dispute can raise a constitutional claim.

I've never suggested that I thought FISC could adjudicate its own constitutionality. I said they could adjudicate the constitutionality of the NSA program if someone had standing to challenge it.


Such a motion isn't "dirty," it is absurd on its face like your "heroic" and groundless ACLU summary judgment motion and should lead to Rule 11 sanctions against the attorneys.

The government has no standing to challenge the constitutionality of its own policies. That is nothing but a request for a advisory opinion.

As a prosecutor, I have attempted to admit evidence into a case which I all but invited the defendant to challenge with the intent of getting a pro defense judge to exclude it so we could get the judge reversed on appeal and chided by the appellate court. However, in that case, the defendant had standing to challenge the admission of the evidence. I had no standing to stroll into the court, offer the evidence and then ask the court to rule on its constitutionality without a challenge by the defense.
3.11.2006 10:02am
Just an Observer:
Bart: The government has no standing to challenge the constitutionality of its own policies. That is nothing but a request for a advisory opinion.

Again, you misunderstand the scenario. It would not be "advisory" at all, but a real case of a real FISA warrant application.

The government would not be challenging the constitutionality of its own powers, but presumably defending them along the lines of the Article II powers Bush claims to have. DOJ also could advance its theory of statutory interpretation claiming the 2001 AUMF authorized the warrantless surveillance.

It is the FISC court, in the first instance of considering a new FISA warrant based on fruits of the prior warrantless surveillance, that could reject the application because the prior surveillance waa unlawful on its face. (The court would similarly be empowered to reject the fruits of unlawful physical searches, torture or perjury in considering a warrant application.)

The government would be free to argue as a matter of law that the prior warrantless surveillance (or physical search, torture, etc.) was lawful after all. That would create the question on appeal.

The DOJ would be free to seek vindication of all the "legal" arguments described its 42-page press release. The difference is that DOJ lawyers would have to make those fanciful arguments in federal courts, not just the Court of Public Opinion.

Of course, if the government won its warrant at the FISC level, that would not be immediately reviewable; only FISC rulings against the government are reviewable by the FISCR. But even with that advantage, DOJ fears the prospect of judicial review. Almost certainly, the FISC court and ultimately SCOTUS would find the warrantless surveillance to have been unlawful.

I believe the administration almost certainly would lose on the merits. Apparently Gonzales does, too. That is why he is afraid to bring the case.
3.11.2006 10:58am
Medis:
Kovarsky,

Justice Scalia recently commented on exactly that issue in his concurrence in Lockhart. In a nutshell, he observed that the Court on occasion has disregarded express reference requirements for subsequent amendments. See Marcello v. Bonds (involving such a requirement in the APA). So, Justice Scalia concluded that one Congress cannot strictly impose such a requirement on a subsequent Congress.

More controversially, perhaps, Justice Scalia also seemed to think that such an express reference provision did not add much if anything to the general rule regarding implied repeals, even as a purely interpretative matter. Of course, that makes sense for Scalia because he sees the general rule as providing an "already-powerful presumption against implied repeals," so the marginal effect of an express reference provision may necessarily small.

Anyway, I'm not sure this is a settled area of law. In this case, however, the ordinary general rule regarding implied repeals is certainly enough to decide the issue, because there is no clear evidence of an intent by Congress to amend 18 USC 2511(2)(f)--or FISA generally--with the 2001 AUMF. Just the opposite, in fact: given the concurrent USA-PATRIOT Act, there is clear evidence that Congress did NOT see the 2001 AUMF as amending FISA et al.

Hence, although your claim may have some merit, I suspect that a court would not reach the issue in this case simply because there is at least some controversy involved in express reference cases. And since here even the general rule is decisive, there would be no need to go further.
3.11.2006 11:52am
Tom Holsinger (mail):
JAO,

That's a great one. Kafka at work. It's No. 637 in the list of why non-citizens should not be prosecuted for terrorism-related offenses in the regular criminal justice system.

I was on that years ago.
""This leaves, however, the unspeakable elephant of immigrant alien surveillance and control sitting in Homeland Security's waiting room. With rare exceptions, citizens aren't our foreign terrorism threat. Resident aliens - legal and illegal - are the threat and no one, not even General Odom, has addressed this defect in the Homeland Security Department's organization.

The Supreme Court long ago ruled that resident aliens are entitled to the same constitutional protections as citizens. This was done for expedient reasons - letting police and prosecutors deny constitutional protections to aliens imperiled the same protections for citizens. But "[t]he Constitution is not a suicide pact." The lives of citizens are now directly threatened by resident aliens, while the constitutional rights of citizens are imperiled by security measures created to protect against resident aliens. The law must change to reflect these developments.

The new Department of Homeland Security would be more effective, without harming citizen rights, if aliens lack full constitutional protection, for offenses committable only by aliens, which it has exclusive jurisdiction to prosecute. State and local police, the FBI, and state and Justice Department prosecutors, would have to give aliens full constitutional rights during investigation and prosecution of ordinary offenses, as citizens can be charged with those too. But Homeland Security law enforcement officers and prosecutors wouldn't have to do so for offenses under laws which apply only to aliens."
3.11.2006 12:47pm
Just an Observer:
Tom Holsinger,

I see that once again you find an excuse to quote yourself from that old blog entry. We understand that you think resident aliens should not have constitutional protection, but the courts don't agree with you. Big deal.
3.11.2006 2:22pm
Kovarsky (mail):
Bart,

Such a motion isn't "dirty," it is absurd on its face like your "heroic" and groundless ACLU summary judgment motion and should lead to Rule 11 sanctions against the attorneys.

Please stop. That "heroic" comment was quite evidently announced as what the liberal counterpoint to your inflammatory characterization would look like. It's not what I believe. As Tom explains, they're trying to get evidence, not make a claim. My real opinion on the subject lies somewhere between the two poles.

The government has no standing to challenge the constitutionality of its own policies. That is nothing but a request for a advisory opinion.

I respectfully request that our conversation end. This entire time you have been arguing that FISC doesn't have jurisdiction to consider the argument. Not that a party would not have standing to assert it. I am beginning to get the feeling your deliberately confusing these two issues in hopes of stringing out this dialogue. Please respond to the narrow point that you've been making the entire time, which is incorrect - that FISA does not have jurisdiction to adjudicate constitutional claims under the 4th amendment. And please quit shifting advocacy and changing the subject. It is getting very frustrating to conduct an exchange with you.
3.11.2006 2:22pm
Tom Holsinger (mail):
JAO,

I take you feel that refusing to let defense counsel see a decision denying their motion to dismiss is Constitutional.

I don't like that precedent at all as it can be applied to citizens.
3.11.2006 3:04pm
Just an Observer:
Tom Holsinger,

I don't think I like the precedent, either, although we don't know the full story about the Albany case. The law here has not been explained; perhaps it is not settled. I find the situation enigmatic at this point, and wonder about whether the defense claim that NSA surveillance was involved is correct.

My point is that your own self-quote about what you think the law should be toward resident aliens really does not seem relevant. Your own quote admits that the courts disagree with your position. I am really much less interested in your opinion than in the opinions of judges.
3.11.2006 3:18pm
Tom Holsinger (mail):
JAO,

I advocate changing the law here. I can see situations in which the court here acted properly, but I do not want to risk loss of our freedom to the solutions for dealing with resident alien terrorists.

You might want to discuss only the law as it is. There are lurkers here who might disagree.

I am trying to build opinion for such changes.
3.11.2006 4:19pm
Broncos:

...I do not want to risk loss of our freedom to the solutions for dealing with resident alien terrorists.

If you believe that "we" does not include my mother, who has lived here 30-plus years and raised a family of 5 patriots, then stripping "their" freedom might make sense. Though, I'm not sure that allowing the government to strip one person's freedom in the name of security usually provides momentum to stop it from stripping another's freedom in the name of security.
3.11.2006 4:30pm
Broncos:
does oops, again.
3.11.2006 4:31pm
Kovarsky (mail):
Tom,

I don't get it. What's the fraction of resident aliens that are terrorists? Even if its 100 times the fraction of citizens that are terrorists, if the number is still .000001%, you still can't strip rights based on that data. Sure, the average resident alien is considerably more likely to be a terrorist than an average citizen (i dont even know if that's true or not, i'm giving you the benefit of the doubt), but that doesn't mean that, given the chance that any given resident alien is a terrorist is still sufficientlly infintesmal, we can or more importantly should do anything meaningful constitutionally about it.

If all murderers were men but still only 1 in every 1,000,000 men was a murderer, you couldn't justify, for example, imposing a curfew on men on that basis.

Data?
Data?
Data?
3.11.2006 8:38pm
Grand CRU (mail):

If all murderers were men but still only 1 in every 1,000,000 men was a murderer, you couldn't justify, for example, imposing a curfew on men on that basis.



If all terrorists presently carrying suitcase-nukes into LAX were men, but still only 6 out of the 400,000 people there were terrorists, you couldn't justify, for example, shutting down the entire airport, canceling all outgoing flights, and diverting all incoming flights. But you could.
3.11.2006 8:57pm
Bruce Hayden (mail) (www):
Unbelievable. Dozens of posts about whether or not the Administration could get what is essentially an advisory opinion that their NSA program was illegal. I think the poster above who asked why they would want to do this in the first place is right on. About the only thing that it would do would be to add ammunition to the anti-NSA program contingent, which this Administration reasonably is most likely quite reluctant to do.
3.12.2006 12:09pm
Medis:
Bruce,

First, it obviously isn't asking for an "advisory opinion" if they bring it within the context of a FISA application. People are acting like "test cases" are something unusual or improper, but of course they are not.

Second, if the Administration won, one obvious effect would be that they could make greater use of this program for the sake of getting FISA orders. More broadly, such a ruling (particular if the case was taken all the way to the Supreme Court) could help them use material from this program in criminal prosecutions. More broadly than that, such a ruling could help end a distracting and divisive political issue. Even more broadly than that, such a ruling could generate a useful precedent for other FISA, other GWOT, and maybe even other general separation of powers, issues. And so on.

The idea that the Administration has nothing to gain from a favorable legal ruling is frankly ridiculous. Clearly, the reason they are not offering such a test case is that they have determined that their odds of winning, given the arguments they can muster, are too low. To use the language of rational choice theory, they must believe that the probability-discounted benefits of winning are lower than the probability-discounted harms of losing.
3.12.2006 12:48pm