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Judge Lynch Hears Arguments in NSA Case:
Judge Gerard Lynch of the Southern District of New York is an extremely bright and thoughtful guy, and as luck would have it he happens to have been assigned one of the NSA domestic surveillance program cases. He held a long hearing on the case earlier today, and Adam Liptak has a very interesting report on the hearing in the Wednesday New York Times.
A.S.:
the Thursday New York Times

Um, losing track of days? :-)

The most interesting thing about the article was the following:


In a move that surprised Judge Lynch and lawyers who have been following the debate over the surveillance program, a government lawyer seemed to shift tactics to bring one more legal question within the scope of the privilege.

It has been widely assumed that the government has acknowledged that the surveillance program violates the Foreign Intelligence Surveillance Act, a 1978 law that requires the government to obtain a warrant from a secret court before wiretapping the international communications of Americans for national security purposes.

"We don't agree," the lawyer, Anthony J. Coppolino, said, "that the government has specifically conceded that point."


It may have surprised some of the lawyers following the case, but it accords with EXACTLY what I argued in some of the prior threads (e.g., here).

The government has NOT conceded that the NSA program constitutes "electronic surveillance", as defined in FISA. And, to my knowledge, none of the plaintiffs in any of these suits have provided any evidence WHATSOEVER that it does.

Anyway, just tooting my own horn! :-)
9.6.2006 1:02am
OrinKerr:
Thanks for the date check; I fixed it.
9.6.2006 1:06am
Medis:
In reading around, it looks like Judge Lynch may be inclined to hold the plaintiffs need to show their communications were in fact surveilled in order to establish standing, which may be tough.

It also looks like Judge Lynch was not at all impressed by the government's argument that the President had the inherent power to conduct surveillance of communications involving United States citizens if Congress told him he couldn't. And apparently he said this: "Even Julius Caesar didn't get to bring his armies back into Rome — although he did."

A.S.,

I don't see anything in what you quoted about the government denying that the Program involves electronic surveillance within the meaning of FISA. Indeed, what the government has always argued is that they didn't actually "violate" FISA, but they based that claim on the theory that Section 1809 provides a loophole in FISA for electronic surveillance authorized by other statutes, and they have claimed that authorization was provided by the 2001 AUMF.

So, a claim by the government that they are not violating FISA is not, as you seem to be suggesting, the same thing as a claim by the government that the Program does not involve electronic surveillance within the meaning of FISA.
9.6.2006 9:35am
Medis:
Oh, and apparently Judge Lynch was not impressed by the government's 2001 AUMF argument, literally saying according to the NYT, "I'm not too impressed by that one."
9.6.2006 9:55am
Just an Observer:
While the NYT story is useful, it would also be helpful to follow this high-profile case in more detail contemporaneously so observers do not have to piece together the record in the heat of reactive controversy when Judge Lynch takes some action.

Perhaps that record could be made available at Volokh, as the record in ACLU v NSA was here?

Apparently this is the first hearing Judge Lynch has held on this matter. Did he take any procedural action, or take the motions before him under advisement? Has he ruled yet on the government's motion to stay consideration of summary judgment?

This summary page at the CCR site has links to some of the filings in this case. But there is no copy of the plaintiffs' motion for summary judgment, or any supporting material filed along with it. Did the CCR plaintiffs provide some detailed record, as the ACLU plaintiffs did, of undisputed facts to support summary judgment?

The government filings in CCR v Bush seem roughly to parallel those it made in ACLU v NSA. DOJ apparently still has not briefed the merits directly. The hearing dialogue reported by the NYT is the most we have to go on. Apparently the judge did draw the DOJ attorney into more explicit oral assertions about the Article II issue than DOJ has been willing to commit to in its briefs, and the judge seemed to indicate he is interested in grappling with those merits if he gets past the standing and privilege issues.

Judge Lynch obviously seems concerned about standing. As I recall from news reports of the similar hearings in Judge Taylor's court, that is where she put all her emphasis in her questions at those hearings.
9.6.2006 11:25am
Bruce Hayden (mail) (www):
Originally, when I read the NYT article, I questioned this:
It has been widely assumed that the government has acknowledged that the surveillance program violates the Foreign Intelligence Surveillance Act, a 1978 law that requires the government to obtain a warrant from a secret court before wiretapping the international communications of Americans for national security purposes.

"We don't agree," the lawyer, Anthony J. Coppolino, said, "that the government has specifically conceded that point." He added that the question could not be answered without endangering national security.
based on my reading of the government's briefs in the Michigan ACLU case. But I went and reread them, and what they actually seem to say in the section on standing and chilling is that the plaintiffs don't have a reasonable expectation of privacy, etc. because their conversations with known or suspected al Qaeda are potentially surveiled under FISA or Title III wiretaps.

I note that in those briefs, the government never really did admit that the TSP violated FISA, but rather argued as if it did violate the letter of FISA, but that FISA wasn't controlling for any number of reasons. Assuming that the Manhattan pleadings parallel the Michigan ones, this may be where the government attorney is coming from. The TSP probably does violate the letter of FISA, and, thus, the government can't ethically deny that in its pleadings. Rather, they just seem to slide around the point.

And they may just get away with it - ultimately arguing that they can't confirm or deny that without the specifics of the TSP, which are protected by the State Secret privilege, as suggested by the government attorney.

It will be interesting.
9.6.2006 12:30pm
Bruce Hayden (mail) (www):
Actually, I like A.S.'s point here better than my own. I need to reread the thread before posting. Sorry.
9.6.2006 12:34pm
Medis:
Bruce,

You wrote: "But I went and reread them, and what they actually seem to say in the section on standing and chilling is that the plaintiffs don't have a reasonable expectation of privacy, etc. because their conversations with known or suspected al Qaeda are potentially surveiled under FISA or Title III wiretaps."

Can you point us to what you have in mind?
9.6.2006 12:39pm
Just an Observer:
A copy of the plaintiffs' motion for summary judgment can be found here. (There is just no link to it on the CCR's summary web page.)

This brief includes the specific references to public statements by senior administration officials on which the CCR relies.
9.6.2006 1:03pm
Medis:
By the way, having reread the government's brief for its omnibus motion, I can see where they argue that being subject to FISA orders or Title III warrants would defeat a First Amendment chilling argument. But I don't see them arguing it would defeat a reasonable expectation of privacy.
9.6.2006 1:11pm
Just an Observer:
Given that Judge Lynch said he would "devote little time to the First and Fourth Amendments," it is interesting to contemplate what that does for the standing issue.

While the alleged chilling under the First would bolster standing, I am not certain it is vital. If the plaintiffs can demonstrate tangible harm sufficient to establish Article III standing, they arguably fall within the "zone of interests" of FISA itself to establish jurisprudential standing. That doctrine originated in a case brought under the Administrative Procedure Act, as this case and ACLU v NSA are.

As in the parallel ACLU case, that may ultimately be the crux of the standing question. I continue to feel that standing will prove determinative in both.
9.6.2006 1:39pm
Medis:
JaO,

That sounds right to me. And I have little doubt that they have Article III standing, but I think they are unlikely to be able to prove they were in fact surveilled without discovery of privileged material. So, I think the "zone of interests" issue likely will become determinative (assuming the "chilling" argument under the First Amendment is ruled out).
9.6.2006 2:48pm
Bruce Hayden (mail) (www):
JaO,

What harm are they going to prove, other than the type of 1st Amdt. chilling found by Judge Taylor? As I read her opinion, it sure seemed to me that she looked around to find some harm, found it in the indirect chilling, thus found Standing, and was then able to on to everything else. Do you really believe that this judge will be able to find concrete harm to identifiable plaintiffs elsewhere?
9.6.2006 2:56pm
Bruce Hayden (mail) (www):
I should add that whatever Judge Lynch does decide, I have little doubt that his decision will be better reasoned and supported than the opinion by Judge Taylor. My main problem with her opinion was that it cut too many corners and left us guessing at what went into it. I don't expect this here.
9.6.2006 3:00pm
Medis:
By the way, at least under the APA, this is one prominent statement of the applicable test:

"In cases where the plaintiff is not itself the subject of the contested regulatory action, the test denies a right of review if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit. The test is not meant to be especially demanding; in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff."

Clarke v. Securities Industry Assn., 479 US 388, 399-400 (1987).

As I understand it, it would expressly not be required that the plaintiffs be given a right of action under FISA, and it is very likely they would pass the "zone of interests" test if they were in the same class of people the statute was intended to protect. Which means they might in fact have a pretty good argument.
9.6.2006 3:04pm
Medis:
Bruce,

I think the chilling argument alone is almost surely sufficient to establish Article III standing, since that is exactly the same sort of harm as has been recognized in certain First Amendment cases. Of course, that doesn't mean they have prudential standing, which is where I think the action really lies in this case.
9.6.2006 3:07pm
Just an Observer:
Bruce Hayden,

The plaintiff's brief alleges that the harm is concrete because it necessitates expensive travel, etc., to ensure secure communications. That goes to the question of Article III standing.

One could say that is the result of a chilling, but that chilling need not implicate violation of the First Amendment. Arguably the plaintiffs rely on the government to follow FISA, and if FISA is violated they are within the "zone of interests" related to the statute itself. That goes to the question of jurisprudential standing. I think the overall standing question will turn on how narrowly (or broadly) the courts interpet this zone of interests.
9.6.2006 3:13pm
Medis:
JaO,

Good point--the "chilling" effects don't have to be about limiting free expression, but just about additional costs, in order to establish Article III standing.
9.6.2006 3:46pm
Howard Gilbert (mail):
Communication between the US and Pakistan (to choose one destination with a large Al Qaeda contingent) first go to England, where even before the London subway bombings MI-5 wanted to know if anyone was talking to Al Qaeda, and then they got a copy of the same database that Pakistan and the coalition gave to the NSA. The English people expect the Secret Service to use signals intelligence to capture enemy spies today just as they did so successfully during WWII. So MI-6 should certainly have set up a monitoring facility in the C&W switching facility in Land's End, through which all US communication also by luck happens to travel. Next stop may be the south of Spain where the Guardia Civil was interested in tracking terrorists even before the Madrid train bombings, and then they got a copy of the same numbers. Next stop is definately Palermo, comm hub of the Med, where the Italian government has been fighting terrorists since before UBL could find Afghanistan on a map, and they got a copy of all the numbers. Next stop is Alexandria Egypt which has been fighting the Muslim Brotherhood for decades and had a president assinated by them. They are not part of the coalition, so maybe they got a copy of the numbers from someone who is. Of course when the call gets to Pakistan the ISI will be monitoring the traffic, because they didn't go to all the trouble to collect these numbers from captured Al Qaeda operatives just so they could put them in a spreadsheet. However, in telecommunications a call will often overshoot to the next big switch and come back, so there is a chance that Pakistan traffic actually switches in India where it gets monitored by the IB. Personally, I would expect that the Italians in Palermo copy the traffic to the Turkish MIT and Mossad, while the IB would certainly give copies to Russia (Al Qaeda is active in Chechnia) and China (Urgurs). So with the call recorded by MI-6, GC (Spain), SISMI (Italy), MIT (Turkey), Mossad (Israel), GDSSI (Egypt), ISI (Pakistan), IB (India), and maybe Russia and China, can you please explain to me the "chilling effect" of the possibility that the NSA recorded it directly rather than standing in line for one of the copies from one of the other sources? Who exactly has a reasonable expectation of privacy when the only country that probably wasn't listining is is Japan, and I am not sure about them.
9.6.2006 5:00pm
Medis:
Howard,

As Orin and others have frequently tried to make clear, "reasonable expectation of privacy" is a term of art in U.S. law and doesn't literally mean that one can be reasonably certain that no one else is listening.

Incidentally, you seem to be assuming the entire program is based on some widely-distributed list of phone numbers. I don't think we know that.
9.6.2006 5:05pm
Howard Gilbert (mail):
Coalition forces in Afghanistan and the Pakistani ISI went through the personal effects of killed or captured Al Qaeda members, and they obtained phone records for every captured cell phone. Phone numbers and email addresses were put in a database that was shared with the entire coalition. Most of the numbers probably came from the ISI since they captured most of the high value targets. If you get a bunch of numbers in Pakistan, they will probably be mostly local calls (isn't than how everyone uses their phone). Furthermore, there were a bunch of Al Qaeda in Pakistan to start, and then everyone who escaped from Afghanistan after Tora Bora joined them. The largest part of the monitoring probably consists of internal Pakistani local calls monitored by the ISI, and if they do that then occasionally some international call involving a US person might happen to also be recorded. What we don't know, because there is no direct evidence in the record, that the program consists of more than that: recordings made in Pakistan by the ISI sent to the NSA for processing. That would have explained everything the NYT sources actually saw or knew and everything the government has admitted about "the program".
As was pointed out by the original story and by a previous post, people have assumed about this case many things that are not actually in the record if you go back and read carefully. So yes, everything I say is speculation. The point is that we have no more evidence that the NSA recorded anything in the US than the zero evidence we have that Italy recorded the same thing. It is all unsupported speculation. [And "reasonable expectation" was a joke, not a real argument, although I think that "chilling effect" could actually be argued in these terms.]
9.6.2006 5:32pm
Don Miller (mail):
I am not a lawyer, but I still have questions.

I don't believe we have enough information to decide how the NSA program works.

If the NSA receives copies of the conversations, as intercepted by other governments, like Howard suggested, would it be a violation of FISA since the NSA didn't do the wiretap.

Would a copy of the conversation or phone record be legal?

What if the NSA intercepted the phone call in Pakistan itself and not in the US, is that a violation?

I know there is a 4th amendment principle regarding 'fruit of the poisonous tree', but if the government's goal is to prevent a terrorist attack and not to gather information that might be used in a criminal prosecution, would they care?

Pretend for a moment that the NSA is using US based equipment for these phone intercepts and the US Supreme Court says they have to stop, could they retool the program by just having foreign intelligence services provide the information to them?
9.6.2006 5:48pm
Just an Observer:
While the speculation raised by Howard Gilbert and Don Miller is interesting, it really has little to do with the CCR v Bush and ACLU v NSA cases. Both those cases are based upon public statements by senior administration officials describing the "Terrorist Surveillance Program," and showing that it does, in fact, include surveillance that falls under the scope of FISA's warrant requirement.
9.6.2006 6:17pm
Medis:
Howard,

Actually, what you described ("The largest part of the monitoring probably consists of internal Pakistani local calls monitored by the ISI, and if they do that then occasionally some international call involving a US person might happen to also be recorded.") wouldn't explain much, since that wouldn't have anything to do with FISA in the first place.

Don,

To figure out if various scenarios would be covered by FISA, you basically have to go to 50 USC 1801(f) and see if that definition fits. Generally, though, either the acquisition has to happen in the U.S., or both the sender and receiver have to be in the U.S., or a known U.S. person inside the U.S. has to be intentionally targeted. If one of those three scenarios doesn't fit, it won't be covered by FISA.

By the way, the exclusionary rule you mention is a remedy for Fourth Amendment violations in the criminal context, but it doesn't define what is or is not legal for the government to do, and is not the only remedy available for Fourth Amendment violations.
9.6.2006 6:30pm
Gerard Lynch (mail):
You mean Gerard, not Gerald.

[OK Comments: Sorry about that! I just fixed it.]
9.6.2006 6:40pm
Howard Gilbert (mail):
The only hard fact that we know, and the only thing the government has admitted, is that NSA computers processed intercepted communications including an unspecified number of international communications involving a US party. No domestic communication was intercepted, although the DOJ insists that the President has just as much right to intercept domestic as international calls. No warrant was obtained. The NSA has boxes connected to major international communications switches in the US (which it needs for intercepts authorized under FISA) but while there has been wild speculation by the NYT that they may have been used, there has not even been a report of a statement by any person with direct knowlege of such use. Because the point of intercept is a "source and method of intelligence" it has been the absolute policy of this as all previous administrations to not comment, either to confirm or deny, any speculation about where and how the intercept was done. So yes the government has not contested such speculation, but neither has it confirmed it. In every case there is a formula that 'to avoid discussing national secrets we will argue as if the program is covered by FISA' but if you read carefully you will see that they never, ever admit that the program falls under FISA jurisdiction. However, it may be true that today was the first moment in any of the litigation where the government came out and actually pointed to the fact that they had never admitted this.

Of course I may be wrong. This is really simple. Find the quote. There is one place where the AJ discusses "electronic surveillance" in the program without saying that he is using the FISA definition rather that plain English language. Other than that, cite the testimony, brief, or white paper. Cite a story whose source is someone in the NSA who might actually know and not, as the NYT cites, "current or former government employees" who from the text of the article might just as well have come from the Agriculture Department.
9.6.2006 7:26pm
Bruce Hayden (mail) (www):
I know we don't know the specifics, but I think a lot of people have been operating under the assumption that the reason that the TSP potentially falls under FISA is 50 USC 1801(f)(2) - requiring that the intercept be made in the U.S. and that one party be here. I would suggest that is far more likely than (f)(1) where interception location is irrelevant, but rather, that the person intercepted in the U.S. is a U.S. Person in the U.S. and be the targeted individual. Partly this suggestion is based on the fact that the NSA has acquired a number of FISA warrants since the TSP was set up, and I think it likely that many of these were when the targeted person was in the U.S. Rather, I suspect that the issue is that conversations are potentially being intercepted where the targeted person is not in the U.S.

This is not to rebut Medis' point, but rather to possibly point out that we got to this point because it is unlikely that the NSA could intercept all of the desired communications anywhere except at the switches as the cables come ashore. From a fiber map of the world, it looks like only about 1/4 of the fiber coming into this country routes through an ECHELON partner country. And because of that necessity of intercepting communications within the U.S., 1801(f)(2) applies.
9.6.2006 7:38pm
Just an Observer:
Howard Gilbert,

This becomes tiresome in repetition, but so is your red-herring question.

AG Gonzales, Dec. 19, 2005 White House briefing:

Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress.


The only "kind of surveillance" that possibly meets that criteria is surveillance under FISA's definition of "electronic surveillance."

Gonzales' admission is key evidence in the case in question here, and also in the ACLU v NSA case already decided against the administration. AFAIK, this fact still has not been disputed by the government in either case, or even on the record outside of court.
9.6.2006 8:03pm
Just an Observer:
Bruce Hayden,

Your last comment is certainly germane to policy issues now before Congress as it considers amendments to FISA, and quite irrelevant to the legal case before Judge Lynch. This case involves the statute as it is, not as you think it ought to be.

Of course, if Congress does amend FISA in a way that legalizes the current NSA program, that likely would render this case moot.
9.6.2006 8:31pm
Howard Gilbert (mail):
I don't want anyone to say I am making fun of someone, but you have to put the AG quote in context. First, the program is described "The President has authorized a program to engage in electronic surveillance of a particular kind, and this would be the intercepts of contents of communications where one of the -- one party to the communication is outside the United States." Then there are some disclaimers. Then there is the "the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed". "unless there is somehow -- there is -- unless otherwise" is not a carefully prepared remark on policy. Nor does it make much sense to say, as the remark appears to say, that FISA requires a court order to intercept where the only stated criteria is that "one party to the communication is outside the United States".

The only reasonable conclusion that you can draw from reading the entire transcript is that George Bush chose an AG who is no better at public speaking than his boss. If you think that you can build an entire case based on this one confused, inarticulate, and largely incoherent remark then knock yourself out.

Other highlights from the same AJ transcript: "Again, this is not a situation where -- of domestic spying. To the extent that there is a moderate and heavy communication involving an American citizen, it would be a communication where the other end of the call is outside the United States and where we believe that either the American citizen or the person outside the United States is somehow affiliated with al Qaeda."

"If we -- but there are standards that have to be met, obviously, and you're right, there is a procedure where we -- an emergency procedure that allows us to make a decision to authorize -- to utilize FISA, and then we go to the court and get confirmation of that authority."

And if you want a clear statement on the 4th Amendment question: "The touchstone of the 4th Amendment is reasonableness, and the Supreme Court has long held that there are exceptions to the warrant requirement in -- when special needs outside the law enforcement arena. And we think that that standard has been met here. When you're talking about communications involving al Qaeda, when you -- obviously there are significant privacy interests implicated here, but we think that those privacy interests have been addressed; when you think about the fact that this is an authorization that's ongoing, it's not a permanent authorization, it has to be reevaluated from time to time. There are additional safeguards that have been in place -- that have been imposed out at NSA, and we believe that it is a reasonable application of these authorities."

Why in the middle of this mess should you take one confusing utterance (though not outstanding in its confusion) and regard it as the definitive answer to a question that the government has, in a few hundred other places, stated clearly that it was never, ever going to answer.
9.6.2006 8:43pm
Mark Field (mail):
Please, Howard. If the program complied with FISA, the Administration would have said so and there would be no controversy. The sole reason this is an issue is that the Administration has NOT made this simple statement despite repeated opportunities to do so.
9.6.2006 8:49pm
Just an Observer:
Howard Gilbert,

I find myself unimpressed by your sarcastic belittling of the Gonzales quote.

That quote -- along with several other on-the-record statements by Bush and senior officials -- was enough for a federal judge to hold this program illegal on summary judgment. A second judge now has almost identical factual issues before him, and we are still waiting for DOJ to deny in court that the program is outside the scope of FISA.
9.6.2006 8:54pm
Howard Gilbert (mail):
Today the DOJ did deny in court that the government had ever admitted that it fell within the scope of FISA. That is all you are going to get, and all you should need on summary judgement. To actually deny that the program is covered by FISA is to comment on the sources and methods of intelligence, and that is a decades old rule that must never be broken.

However, if we do have a source from other governments, our agreement with them is to not disclose their covert operations. We have to say nothing, and take whatever heat arises from our inability to keep covert information secret.
9.6.2006 9:26pm
Rodger Lodger (mail):
Aside from any fact-finding, of what significance is a district judge's opinion in a case sure to be appealed? Judge Lynch is highly regarded, and rightfully so in my opinion, but what's the diff what he writes? He could write so well as to furnish a persuasive "brief" himself on appeal, but that could be said about a law review article or anything else in print.
9.6.2006 10:23pm
Howard Gilbert (mail):
If a judge holds a trial and makes a decision on the facts based on evidence, that holds a lot of weight. However, if a judge issues a summary judgement, there is an objective verifiable issue. Summary judgement is only permitted if there are no disputed facts material to the legal question. Obviously the question of whether FISA applies to the program is material to a finding by Taylor that FISA was violated. So if this question was not agreed to by both parties, then the summary judgement was in error. QED.

It is plausible to argue that the DOJ didn't make this point clearly. However, there is a fine distinction when you refuse to dispute the allegations (because of policy and state secrets) but only dispute that these questions have been stipulated. The government clearly stated over and over that the only way to resolve this question would be to disclose state secrets, but the judge in her decision refused to acknowlege that the government was implicitly claiming that there was a question of fact to be resolved. It looks in this case like the DOJ learned a lesson.
9.6.2006 11:07pm
Mark Field (mail):

Today the DOJ did deny in court that the government had ever admitted that it fell within the scope of FISA. That is all you are going to get, and all you should need on summary judgement.


This is doubly wrong. As pointed out by Medis at 8:35 a.m., all the government really said was that the AUMF met the "otherwise authorized by statute" provision of FISA. Nor would any such denial by the government satisfy the requirements of Rule 56.

I'll say it again: if the government truly denies that this program constitutes surveillance under FISA, or claims that it has complied with FISA, then it would have said so last December. That silence speaks even louder than Gonzales's admission.
9.6.2006 11:13pm
Mark Field (mail):

Obviously the question of whether FISA applies to the program is material to a finding by Taylor that FISA was violated. So if this question was not agreed to by both parties, then the summary judgement was in error.


Wrong again. Under Rule 56, the parties do NOT have to agree on the facts. Once one side introduces evidence in support, the other side has the burden of either (a) objecting to that evidence, or (b) controverting it with admissible evidence of its own. The government did neither in the case before Judge Taylor; it's "lack of agreement" was thus irrelevant.
9.6.2006 11:17pm
Medis:
I'm continually amazed that some people in the blogosphere insist on making arguments on the government's behalf that the government apparently has never made itself, and which contradict what the government has in fact stated in public. I particularly like the idea that we should go with random uninformed speculation over what the Attorney General stated to the American public because his grammar wasn't perfect.

And it is not like the government hasn't made its reasoning perfectly clear: from the very beginning, they have argued that the 2001 AUMF allowed them to bypass the FISA procedures pursuant to Section 1809. The fact that this argument effectively has been shot down by the Supreme Court and apparently isn't going anywhere with any federal judge hearing one of these cases doesn't actually change the fact that it has been the government's argument all along.
9.7.2006 12:31am
Medis:
By the way, this statement provides an easy explanation: "To the extent that there is a moderate and heavy communication involving an American citizen, it would be a communication where the other end of the call is outside the United States and where we believe that EITHER THE AMERICAN CITIZEN or the person outside the United States is somehow affiliated with al Qaeda." (emphasis added)

If the target is sometimes the American citizen in the United States, then such surveillance likely falls within 50 USC 1801(f)(1). And I've never seen them deny this.
9.7.2006 12:43am
Bruce Hayden (mail) (www):
Medis,

But I haven't seen them allege that U.S. Persons in the U.S. have ever been targetted w/o a FISA warrant. Rather, the point that the government seems to have been making is that the party outside the U.S. is the one typically being targetted. It is a big jump, IMHO, from the statements made by the Administration and 1801(f)(1) Electronic Surveilance w/o a FISA warrant. The MI ACLU case filings by the govt. imply that they are using FISA warrants, and there is indication that their usage has gone up significantly since 9/11. The problem is that there is apparently a lot more surveilance going on than warrants being issued.

Note, I am not suggesting that there is no unwarranted "Electronic Surveilance" being performed, but rather that it is more likely under 1801(f)(2) than (f)(1). IMHO, that would fit the Administration statements better.
9.7.2006 2:13am
Bruce Hayden (mail) (www):
Let me add to the above from page 30 from the brief in the government's motion to dismiss in the MI ACLU case:
Thus, at bottom, Plaintiffs' argument is that, before the President may seek to detect and prevent another terrorist attack by al Qaeda on the U.S. homeland by seeking to surveil the enemy through the interception of their international calls to and from the United States, he is required to follow a Congressionally-devised process and obtain advance judicial approval for such interception. From Plaintiffs' perspective, the essential facts necessary to decide this issue are that surveillance under the TSP occurs in the United States and is undertaken outside of the "exclusive" FISA process for seeking a court order and demonstrating probable cause to a court.
This would seem to bolster my suggestion that we are talking 50 U.S.C. 1801(f)(2) instead of (f)(1).
9.7.2006 3:04am
Medis:
Bruce,

There is no reason it can't be both--it could both involve surveillance in the United States and also involve targeting U.S. persons. In fact, 1801(f)(1) requires that the targetted U.S. person in question be inside the United States, so that could be what "surveillance under the TSP occurs in the United States" means. And I think your claim ("Rather, the point that the government seems to have been making is that the party outside the U.S. is the one typically being targetted.") was directly contradicted by the quote I highlighted, which suggested the target is sometimes the American citizen.

In general, I have never seen the government claim the target is always the person outside the U.S., as you seem to be suggesting. And certainly the claim that they sometimes get FISA orders doesn't amount to such a statement, because their general explanation for why they are bypassing FISA (sometimes the judicial process is just too cumbersome) could apply to any sort of electronic surveillance, including targeted surveillance of U.S. persons.

Anyway, my point is not that I know better than you, or anyone else in the public, about what the Program involves. But I think the converse is true as well: lots of people seem to be generating pet theories about what the Program involves, but that is just idle speculation on their part.

In fact, all we really know is what the government has consistently maintained: (1) the Program involves electronic surveillance within the meaning of FISA; (2) nonetheless, the government isn't following the FISA procedures; (3) the Program involves communications where one end is inside the United States and one end is outside the United States; and (4) the government suspects that one of the parties to the communication (and apparently it could be any of the parties) is a terrorist, a member of a terrorist organization, or somehow "affiliated" with a terrorist organization.

And that is really all we know.
9.7.2006 11:18am
Just an Observer:
Meanwhile, Judge Garr King in Oregon has ruled that a unique case, in which plaintiffs say the government accidently gave them a copy of a wiretap log of their calls, may go forward in spite of the government's state-secrets claim.

See NYT story: Judge Allows Islamic Group to Challenge Wiretapping
9.8.2006 11:42am
Just an Observer:
Here is a link to Judge King's opinion, courtesy of How Appealing.
9.8.2006 11:59am
Medis:
That's a very interesting opinion and order. As I understand it, the District Court is going to allow the plaintiffs to make in camera arguments relating to standing on the basis of what they remember being in the documents, and will consider allowing redacted versions of the documents into the record.

If all that holds up on appeal, and the plaintiffs have a good memory, this case may avoid all the standing issues we have discussed.
9.8.2006 3:06pm
Just an Observer:
It does look like the Oregon plaintiffs still have a hurdle to prove that their particular surveillance was, in fact, warrantless. It does not seem clear that the accidently disclosed wiretap log states that for certain; the plaintiffs still will try to establish that by in camera argument. See Footnote 5.

I have not seen the complaint, but from the summary of the case in the opinion I gather that this lawsuit is structured quite differently than the general cases brought by the ACLU and CCR. In those cases, the plaintiffs are seeking to enjoin the entire program, and their cause of action is brought under the Administrative Procedure Act, based indirectly on FISA and other laws being violated. I surmise that in the Oregon case, where the plaintiffs allege that they were, in fact, surveilled illegally, they are suing directly under the civil remedies section of FISA. They seek damages and an injunction only against surveillance of themselves.

If that is the case, it may be that the damages claim for the prior surveillance might not be rendered moot if Congress authorizes warrantless surveillance going forward.
9.8.2006 3:51pm
Just an Observer:
It is interesting to contemplate the next steps in the case before Judge King. The government continues to claim state-secrets privilege with regard to the specific detail of whether the surveillance in this case was, in fact, warrantless. And the judge has not yet ruled on that particular application of the state-secrets privilege.

However, he did reject DOJ's statutory interpretation of FISA, favoring instead the plaintiffs' argument that, because this suit is brought directly under FISA, specific language there trumps the privilege.

But DOJ also asserts -- in what I think would be a groundbreaking expansion of the state-secrets docrine -- that the privilege is rooted in the Constitution, so FISA cannot override it. Existing precedent establishes the doctrine as judge-made, federal common law, which can be trumped by statute.

King does not have to go there yet. "I decline to reach this very difficult question at this time, which involves whether Congress preempted what the government asserts is a constitutionally-based privilege," he said. But he may in the next round when deciding details of allowable discovery.

On that question, it is the administration that would have an uphill burden to elevate the state-secrets privilege to an exalted constitutional status.
9.8.2006 6:09pm
Medis:
JaO,

I agree that is a fascinating aspect of this particular case. And while I don't have a read on Judge King yet, I'd be somewhat surprised if a federal judge found that the government had a privilege that Congress could not waive on the government's behalf. Indeed, if a federal judge thought that, then I doubt the plaintiffs would have much luck on the merits.
9.8.2006 6:37pm