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We're Getting Warrants Now, But That's the President's Call, DNI Says:
The NSA domestic surveillace program has been out of the news ever since it was announced in January that the Bush Administration had agreed to seek FISA warrants for such surveillance rather that try to conduct it outside of FISA. In a hearing earlier this week on amending FISA, Director of National Intelligence Michael McConnell made clear that in the Bush Administration's view, this is completely at the President's discretion. According to McConnell, the Administration still takes the view that FISA is unconstitutional and that it has Article II authority to ignore FISA, but it just has decided not to exercise that particular authority at this particular time. According to McConnell: "Article II is Article II, so in a different circumstance, I can't speak for the president what he might decide." (Hat tip: Balkin)
Anderson (mail) (www):
And we should believe, even, that they're *not* exercising that power, because ... why should we believe that, exactly?
5.3.2007 2:58pm
Kazinski:
What is the benefit of getting warrants if they don't have to? The cleanest resolution of the controversy is that the adminstration not get warrants, someone with standing sues, and the courts make a determination of whether the Article II give the President authority to do Foreign-Domestic surveillace.

Orin, I think the term "NSA domestic surveillace program" is misleading, unless you are talking about strictly domestic-domestic surveillace. If someone calls me from Tokyo I'd never refer to it as a domestic phone call, even if they called me at home.
5.3.2007 3:18pm
Steve:
But I was assured by so many blog commenters that it would be completely impractical to fill out all those warrant applications and that was the perfectly innocent reason for ignoring FISA. They made this assertion with such confidence! It's all so confusing.
5.3.2007 3:27pm
Realist Liberal:

The cleanest resolution of the controversy is that the adminstration not get warrants, someone with standing sues, and the courts make a determination of whether the Article II give the President authority to do Foreign-Domestic surveillace.

Obviously this is pure speculation but I think the President is afraid of a clear ruling against him because that may affect other programs that he is using. The cases that had started dealing with some aspects of various surveillance programs were not going so well. For example Chief Judge Vaughn Walker of San Francisco (a moderate conservative) had either rejected or was going to reject (I don't remember which) the President's argument that no one should be able to sue the phone companies for helping because of the state secret doctrine.

The other problem is that it is hard to find someone with standing. Presumably no one knows that their phone is being monitored. Unless the court relaxes standing to allow people who make frequent calls to the Middle East or something along those lines I don't see where standing would come from.


Orin, I think the term "NSA domestic surveillace program" is misleading, unless you are talking about strictly domestic-domestic surveillace. If someone calls me from Tokyo I'd never refer to it as a domestic phone call, even if they called me at home.

I don't think that it is a domestic surveillance program in the sense that it is a domestic call but rather the surveillance is targeted at people here in the US rather than someone in a foreign country.
5.3.2007 3:30pm
Steve P. (mail):
(I like how Steve is posting a comment, on a blog, to direct snark at blog commenters.)
5.3.2007 3:35pm
Anderson (mail) (www):
(I like how Steve is posting a comment, on a blog, to direct snark at blog commenters.)

Where else?
5.3.2007 3:55pm
Just an Observer:
I really do think there is little or nothing new in this story. (Which does not render it unimportant.)

Several months ago, when AG Gonzales announced the novel FISA warrant procedure that he said supplanted the so-called Terrorist Surveillance Program, he told Congress the President still claimed constitutional authority to disregard FISA if he chooses.

Of course, President Bush and his lawyers are still quite afraid to test that claim in court.
5.3.2007 4:31pm
OrinKerr:
Kazinski,

As I have in the past, I'm following the usual convention of classifying surveillance based on where the actual acquisition occurs, not where the people are all located.
5.3.2007 4:35pm
Steve:
I like how Steve is posting a comment, on a blog, to direct snark at blog commenters.

I don't mean any disrespect at your ironic observation, which was actually kind of cute, but I was directing my snark not at the class of blog commentors in general, but at a particular subclass of commentors who made a particular dumbass assertion.

To be clear, this was not only a common assertion in the comment sections, but on the blogs of real, live Bush defenders - the notion that gosh, even though the FISA court approves 99% of all warrant applications, the NSA program has to go around FISA because it's just too much paperwork to apply for all those warrants, particularly when time is of the essence.

And now we learn that, as it happens, voluntary compliance with the warrant requirement is entirely feasible. Will these people realize they were hoodwinked by a bullshit talking point? I can only hope.
5.3.2007 4:44pm
Le Messurier (mail):
Orin

As I have in the past, I'm following the usual convention of classifying surveillance based on where the actual acquisition occurs, not where the people are all located.


I'd be interested to know where this became a "convention". The MSM perhaps? Characterizing a terrorist survelience program as domestic when it involves both domestic and foriegn participants is quite misleading. It leads to overwrought accusations (often heard) that spying on people in the United States is taking away our liberties when in fact we are listening in on an overseas call. I believe great misunderstandings have arisen because of this "convention". It's a nice way of distorting the essence of the program for political purposes, and clarity of language is particularly important in response to criticisms of it.
5.3.2007 5:09pm
OrinKerr:
Le Messurier,

Well, I guess I started using the convention around 1998.

I'm curious, though: What do you think my political purposes are?

Orin
5.3.2007 5:23pm
OrinKerr:
Oh, and I should be clear: I mean "usual convention" in the sense of "common among surveillance law experts," not "whatever the press happens to pick up on in the latest political dispurte." In the case of Internet surveillance, you often don't know where the person is located; you couldn't refer to surveillance based on the location of the individual monitored because you generally don't know where s/he is. So in my experience, at least, the convention is to focus on where the surveillance is occurring, not where the people are.

Orin
5.3.2007 5:27pm
LM (mail):
[...] According to McConnell, the Administration still takes the view that FISA is unconstitutional and that it has Article II authority to ignore FISA, but it just has decided not to exercise that particular authority at this particular time. According to McConnell: "Article II is Article II, so in a different circumstance, I can't speak for the president what he might decide."

Orin: Has the Administration actually taken the position somewhere that FISA is unconstitutional, or is that just your inference? If the latter, from what do you draw the inference, or am I wrong that it doesn't necessarily follow from McConnell's quoted statement?

Please enlighten me.

Thanks.
5.3.2007 5:35pm
Le Messurier (mail):



I'm curious, though: What do you think my political purposes are?


I wouldn't presume to characterize your political purposes, and am not suggesting that you have one. My point is that the "convention" is and has been misleading, misused and open to more than one meaning. I'm suggesting that clarity is important and this convention does not bring it to the discussion. I, for one, hope you will use another descriptor.
5.3.2007 5:40pm
ajftoo:

Well, I guess I started using the convention around 1998.


Conventionally, when someone posts a comment like that it includes a link.
5.3.2007 5:40pm
OrinKerr:
LM,

I've understood that to be the Administration's Article II argument. FISA is binding if it is constitutional; the only way it could not be binding is that if it has a constitutional defect. Thus, if Article II "trumps" FISA, it must mean that FISA's effort to "trump" Article II is unconstitutional. That's been my understanding, at least. Is your understanding different?
5.3.2007 5:46pm
Mark Field (mail):

Has the Administration actually taken the position somewhere that FISA is unconstitutional, or is that just your inference?


I'm not Prof. Kerr, but the DOJ Memo of January 2006 took this position. It argued that Art. II gave the President authority to conduct the war which FISA could not restrict.
5.3.2007 5:47pm
OrinKerr:
Le Messurier,

What should we call Internet surveillance that occurs in the United States of an unknown person who can be physically located anywhere? World surveillance? Global surveillance? Solar system surveillance? Milky Way surveillance?
5.3.2007 5:50pm
Mark Field (mail):
5.3.2007 5:50pm
Steve P. (mail):
I don't mean any disrespect at your ironic observation, which was actually kind of cute, but I was directing my snark not at the class of blog commentors in general, but at a particular subclass of commentors who made a particular dumbass assertion.

Oh no, I get it. I bet almost everyone did. But observations cease to be funny if you get too interested in the details.
5.3.2007 5:55pm
Brian K (mail):

Characterizing a terrorist survelience program as domestic when it involves both domestic and foriegn participants is quite misleading.


I don't quite see how it is misleading. The surveillance is carried out in the US and one party of the call is based in the US. hence "domestic". I can see how it can lead to think that both parties are located in the US, however "NSA" almost always appears in front "domestic surveillance program" which differentiates this use of "domestic" from the FBI's use of "domestic".

I also can't think of another simple concise word to describe the program. "foreign" doesn't work. nor does "international". "NSA surveillance of communication between a US citizen and a foreign national" may be more accurate but it is not likely to stick because it is way to long to use repeatedly.
5.3.2007 5:59pm
ajftoo:

What should we call Internet surveillance that occurs in the United States of an unknown person who can be physically located anywhere? World surveillance? Global surveillance? Solar system surveillance? Milky Way surveillance?


Wow. Orin, that's why your convention talk is nonsense. By your logic all surveillance is domestic. So, the FBIs surveillance of the mafia becomes what, New Jersey Surveillance Program?
5.3.2007 6:03pm
KeithK (mail):

What should we call Internet surveillance that occurs in the United States of an unknown person who can be physically located anywhere? World surveillance? Global surveillance? Solar system surveillance? Milky Way surveillance?


What's wrong with calling it "Internet surveillance"? I'm not sure why it should matter (whether or not it does as a matter of law) that the actual packet reading is conducted on US soil or not. What should matter is who the target is and what status he has (US citizen, foreign national.
5.3.2007 6:06pm
Kelvin McCabe:
On word play:

Bush and company have argued that FISA is unconstitutional, because its the only argument they had when it was leaked that the administration was conducting domestic surveillance for foreign intelligence purposes without complying with FISA. Bush admitted as much himself,(i believe when he coined the term "terrorist surveillance program" and then, Gonzalez during the hearings on the topic chimed in as well that indeed such surviellance was going on, with the caveat that it was legal to do so under their alleged theory of the unitary executive, the AUMF, etc....

The problem with terminology arises because "terrorist surveillance program" (where terrorists could be in the u.s., overseas, or one is overseas and is talking to someone domestic) is just as misleading because qualifications to be considered a "terrorist" for the "terrorist surveillance program" is so ridicously overbroad and lax. You could be a mere person of interest, or a person with a name similar to a real terrorist, or "someone who associates with a group that associates with suspected terrorists." (think of someone in the u.s. calling a u.s. based muslim charity, where said muslim charity is thought to provide money to overseas muslim groups/charities/ who are suspected, based on unknown intelligence, of supporting hezbollah or al-quaida or any other possible terrorist organization)

Notice the last example, because it is significant. The reason you cant apply for a warrant for this type of domestic surveillance is not because the physical burden of applying is too high, its because the probable cause or the lower "reasonable suspicion" standard is too high. Is it reasonable to conclude that every member of a muslim church is a possible terrorist suspect because the church is a member of a larger congregation, with overseas affiliates, that is linked (however strong or weak) to someone or something that is linked to a terrorist organization? How many links removed from the actual terrorist would this lax standard cover?

In other words, word play over "domestic" and "international" surveillance isn't the only misleading going on here. According to many of the administration's staunch supporters, if taking their words literally, it would appear the traitors of the NYT, Sen Democrat Leader Harry Reid (emboldening terrorists) would also qualify to be surveilled.

Lastly, as to the last sentence in Orin's post, i think the statement with regard to "different circumstances" where FISA would be ignored because it is unconstitutional isnt talking about circumstances where FISA could not be used because of time constraints, etc..., but rather, for different surveillance methods not heretofore acknowledged being conducted outside of FISA's framework and which would likely violate FISA unless FISA were unconstitutional. Such as the de-funded Total Information Awareness project that some allege has resurfaced under a new name. Or canrivore or any of the other so called mass data accumulation projects.
5.3.2007 6:43pm
LM (mail):
Orin,

I don't have anything well enough informed to call an understanding, only inchoate impressions. I think that although the FISA language seems incompatible with an Article II exclusion, the Administration has never been pinned down on this question. Under the circumstances, they're content to reserve all the alternative arguments. If FISA can somehow be read in harmony with expansive Article II powers, that's fine with them. If it fails Constitutional muster, of course that's OK too.

But in the end, provided it's clear that they concede nothing on the scope of Article II, I think the Administration prefers to leave the statute intact, its Constitutional validity unresolved. Again I have no basis to cite for this, but I got the impression they decided to start complying with FISA precisely to forstall litigating this issue. That would be mainly to avoid a possible defeat, but also to preserve the ambiguity, however unlikely its reasoning.

I trust that if I've missed some relevant pronouncement by the Administration, which might have spared us all this uninformed speculation, someone will point it out.
5.3.2007 7:07pm
Le Messurier (mail):

What should we call Internet surveillance that occurs in the United States of an unknown person who can be physically located anywhere? World surveillance? Global surveillance? Solar system surveillance? Milky Way surveillance?


How about FDCS? Acronyms are pretty useful. This one would mean "foreign/domestic communication surveillance". It's a lot clearer than "domestic surveillance". Any good, commonly understood, acronym would do. As we can see from the posts here there is NOT a commonly agreed upon understanding of "domestic surveillance". In the meantime specific wording would be helpful. I'm done for this thread now. Thanks.
5.3.2007 7:20pm
Just an Observer:
By all means, rather than focus on the constitutional and legal issues, let's change the subject to what words the White House talking points say should be used to label the surveillance regulated by FISA.

It is the legal definitions in the statute that require such surveillance to be covered by the law if either the target or the intercept is within the United States.

And this administration continues to claim in public that it can disregard the law whenever it chooses, and continues to avoid judicial review of that radical, extra-constitutional claim.

But forget the Constitution. The talking points are what really matter.
5.3.2007 7:59pm
Bruce Hayden (mail) (www):
I hate to suggest this, but my view is that Orrin's use of the term "domestic" is deliberately misleading. The Administration has from Day 1 made it clear that it applied to "international" calls, calls where at least one party is not located in the U.S.

And, indeed, there is every reason to believe that FISA would not apply in the case of purely "domestic" calls. Rather, standard 4th Amdt. warrants would be required, etc. and would need to comply with Federal Wiretap laws. Add to that that FISA is not termed "Domestic Intelligence Surveilance" but "Foreign Intelligence Surveilance", for a reason.

I would further suggest that the reason to change terminology here is to confuse matters and make people think that we are talking about the type of wiretapping that the FBI and local police do. But the Federal Wiretap laws do not appear to apply, and FISA does because the communications are "international" meaning that one party is located here, and the other not.

As has been repeatedly pointed out here, the reason that the surveilance is being done in the U.S., to the extent that it is, is technological. It cannot be done elsewhere effectively. When FISA was written, it could be. It can't be any more (or at least the bulk of traffic, over fiber optics cannot effectively be surveiled outside the U.S. for traffic here).

Another note - some of the traffic being surveiled is purely foreign, only routed through this country thanks to the complicity of AT&T, but with both ends of the conversation outside the country. It doesn't even fall under FISA, yet, by Orin's definition, it too would be considered "domestic" spying.

Finally, I would argue that another reason to confuse everyone by calling it "domestic" instead of the more accurate "international" is that that deliberately downgrades and tries to undercut the President's Article II arguments.
5.4.2007 4:18am
Just an Observer:
Bruce Hayden,

The statute is called the Foreign Intelligence Surveillance Act not because it doesn't involve domestic surveillance, but because the purpose act is to regulate surveillance of foreign powers and their agents in this country.

The statute excludes surveillance that involves no domestic target and no domestic intercepts. But if either of those elements obtains, the statute does apply. You may not like where the statute draws the line, but there it is.

The publicly announced parameters of the "Terrorist Surveillance Program" were limited to communications where one party was out of the country, but that surveillance still was covered by the statute. (If you want to discuss "deliberately misleading" labels, remember that the program was not actually limited to "terrorists." But that is another issue.)

In any event, what this post concerns is the administration's continuing assertion -- in political venues, but not in a real court where the assertion could be tested -- that the President has constitutional authority to disregard FISA in general. Michael McConnell's assertion about Article II was really quite broad.

If the President's lawyers want to articulate some new constitutional theory that is narrowly limited to "international" calls, let them do so. But they would have to show up in court and make the argument.
5.4.2007 10:43am