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A Possible Way to Get a Supreme Court Ruling on the Constitutionality of FISA:
One frustrating aspect of debates on Presidential power and Article II is that it's so hard to get such questions squarely answered by the courts. The executive is normally in the position of choosing whether to make an Article II argument, and it can simply decline to make the argument. But I wonder — does the Protect America Act change that? I may be way off, but it seems to me that the Protect America act just might give private parties a way to raise the constitutionality of FISA all the way up to the Supreme Court.

  Imagine a telecommunications provider really doesn't like the new Protect America Act and decides he won't comply with it. Under the Act, the provider can challenge whether the government's effort to ensure compliance with the Act is unlawful. So the provider brings such a challenge, and makes the following argument: the government's directive is "unlawful," the provider argues, because FISA and the Protect America Act it modifies is an unconstitutional infringement of executive power that violates Article II. Thus a directive that is part of this unconstitutional statute has no force of law.

  Oddly, this argument would put the Executive in the position of defending the constitutionality of FISA and the Protect America Act. The Executive would need the statute to be constitutional because it's the only reason the directive would be enforceable by the FISA court through contempt sanctions.

  Now the case comes to the FISA court, which has two choices. If it rules that FISA and the Protect America Act are constitutional, then the provider can appeal to the FISA Court of Review; if the FISA Court of Review agrees that FISA is constitutional, the provider can take the case directly to the Supreme Court. At that point, the Supreme Court must squarely address whether FISA and the Protect America Act exceed article II or whether they are constitutional statutes to which the Executive is bound.

  Alternatively, if the FISA court or FISA court of review conclude that FISA as modified by the Protect Act exceed article II, then they would have to strike down the very statute under which they are operating. But because all the FISA orders go through that court, that presumably means the whole FISA process would come to halt. At that point the Justice Department would need to decide whether to defend the statute: the government could either not appeal the decision and go without the enforcement of the Protect America directive (which seems a difficult position to take politically, but is at least possible legally), or else it could appeal the case and itself bring the constitutionality of FISA to the Supreme Court.

  Am I right that this mechanism is a way to settle the Article II question, most likely through a U.S. Supreme Court ruling? One possible wrinkle is severability: I gather the government would try to make a narrow argument that the directive portion of the Protect America Act is constitutional, and would not try to defend the constitutionality of FISA as a whole. But the provider would be in the driver's seat as to what arguments were made: the provide could argue that you have to take all of FISA at once, and at the very least it would force the Supreme Court to look squarely at the question. And it would only take one provider who refuses to comply with the directive and is willing to litigate the issue all the way to the Supreme Court.

  That's my thought, at least. What am I missing? (Thanks to "cbolt" for the comment that made me think of this. Also, I altered the title of the post to make it more accurate.)
Mark Field (mail):
I'm not sure I follow this. It seems to me that the Administration's response would be that it has power to issue the order either way, whether under PAA or under Art. II. Thus, the provider must comply.
8.21.2007 4:17pm
OrinKerr:
Mark,

So the provider says "no, you don't," and waits for the government to move for contempt sanctions. A court has to resolve the issue, right?
8.21.2007 4:20pm
Just an Observer:
Orin,

The problem I see with your scenario is that it does not implicate the "exclusive means" provision of 18 USC 2511(f). It is that provision, which makes FISA and Title III binding on the executive (except for the carve-out for foreign stuff not covered within FISA's scope) that the Article-II-trumps-all theory purports to challenge.

In your scenario, the government would be defending the new section 105B, which is an affirmative grant of new authority by Congress. There is nothing that says that can't overlap with inherent presidential authority. It would clearly fall under Youngstown Category 1.

However, I think a provider challenging such a directive might test some of the unsettled Fourth Amendment questions.
8.21.2007 4:24pm
cboldt (mail):
If there is such a challenge, it will be conduced in secret, under seal, etc.
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The challenge will be fact specific, reflecting the demands in the DOJ order for surveillance. The DOJ will always have the option of quietly dropping the order, if it senses a risk of rejection at the FISC, or even after being rejected by both FISC and FISCR.
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I think the government can prevent escalating the challenge up to SCOTUS, regardless of how badly an ISP or telco wants to push it.
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105C will play too. Once FISC determines that a general process for determining that a surveillance regime does do not constitute electronic surveillance, certain plaintiff ISPs will have no non-frivolous grounds of argument. FISA could, in that sense, overtake the Constitution -- or at least overtake it compared with the sort of protection naive people think the fourth amendment provides.
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P.S. Glad my earlier comment was thought provoking ;-) Thanks for the pat on the back.
8.21.2007 4:28pm
OrinKerr:
JaO,

It seems to me you're getting at the severability issue: what parts of the statutory regime can you break off and say are different from the others? I don't think we have an answer to this, though; your approach is possible, but I don't think it's the only one.
8.21.2007 4:31pm
DWAnderson:
I agree with Mark Field, the exective could just issue an executive order giving the same powers to the government agents issuing the order to the telecom company.

AS long as either the executive power or legislative power were valid sources of authority the order to the telecom company would be enforceable.

Why would the court have to decide if either source was valid if it knows that at least one of them is valid?
8.21.2007 4:33pm
Bruce Hayden (mail) (www):
One way around the argument is the theory that Executive power is something that only the President can assert, and thus, the FISA amdt. would be viewed under normal rules and found supported by the Commerce Clause.

I just don't see the courts biting into this, as it opens up a can of worms that they can easily avoid.
8.21.2007 4:36pm
Justin (mail):
There are other ways of addressing the constitutionality of FISA, but they would require admitting that there are no "technical" ways of so doing. Courts have found many ways of finding exceptions to standing/ripeness/mootness doctrine to answer key questions involving other issues, such as abortion or subsidisation of religion.
8.21.2007 4:40pm
cboldt (mail):
I'm drawing a blank on a statute ever having been ruled unconstitutional on fourth amendment grounds. Any example cases we might draw on for comparison?
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No fourth amendment scholar, I. But a quick scour of my first impression is that the cases find certain, specific evidence gathering activities to be outside the protection of the fourth amendment - where the evidence gathering was pursuant to the general activity of law enforcement.
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IOW, evidence gatherer limits are set by court decisions, not by statutes.
8.21.2007 4:41pm
Apodaca:
cboldt:
I'm drawing a blank on a statute ever having been ruled unconstitutional on fourth amendment grounds.
Berger
8.21.2007 4:45pm
cboldt (mail):
Thanks for the link to Berger ... reading it.
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As I was, a thought struck me that "foreign intelligence information" is outside the fourth anyway, so how could a statute aimed at foreign intelligence possibly be unconstitutional on fourth amendment grounds? "In re: Sealed Case" holds that surveillance primarily for criminal purposes may be conducted under FISA, provided a significant purpose of the surveillance is foreign intelligence.
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Just thinking out loud. If I was determined to surveil broadly, without a warrant, yet wanting the court to admit the evidence so obtained, what is the best argument? I think it is something on the order of "I was looking for foreign intelligence, and of all the good fortune, this evidence of criminal activity happened to be there too."
8.21.2007 4:59pm
Bruce Hayden (mail) (www):
I think that the big problem with the idea is that the portion of the old law that the Administration was asserting it could override through Article II Executive power was really the nsurveillance itself. And this is really a different portion of the new law/amendment.

So, I think that the Administration could argue with a straight face that the portion of the PAA that the telecom provider is contesting is within the power of Congress to regulate, without getting to the question of whether or not they had the power to surveil international and foriegn calls for national security reasons w/o a warrant (and, of course, they often won't need the warrant now anyway because of the portion of the PAA that directly addresses whether or not something is Electronic Surveilance under FISA).

In other words, the two portions of the PAA are likley severable, and the portion that the Administration would base an Article II claim is not the portion that the telcom carrier would contest.
8.21.2007 5:13pm
Mark Field (mail):

So the provider says "no, you don't," and waits for the government to move for contempt sanctions. A court has to resolve the issue, right?


Ok, but this argument presupposes a challenge to the PAA on the ground that neither Congress nor the President could authorize it. Your original suggestion was that the challenge be made on the ground that the PAA conflicted with the President's Art. II authority. IOW, your original suggestion was that the provider affirm the President's Art. II power, now you suggest that it should contest that power.

I do agree, though, that a provider would be the natural locus for a court challenge and I agree with JaO's comments about that. I doubt that in the real world we're likely to see such a challenge. "Don't be evil" strikes me more as a slogan than a vocation.
8.21.2007 5:22pm
cboldt (mail):
This, in Justice Douglas's concurring opinion in Berger, is quaint ;-)

If a statute were to authorize placing a policeman in every home or office where it was shown that there was probable cause to believe that evidence of crime would be obtained, there is little doubt that it would be struck down as a bald invasion of privacy, far worse than the general warrants prohibited by the Fourth Amendment. I can see no difference between such a statute and one authorizing electronic surveillance, which, in effect, places an invisible policeman in the home. If anything, the latter is more offensive because the homeowner is completely unaware of the invasion of privacy.


And this one in Part VI of the controlling opinion ... holy misdirection, Batman!!

We are also advised by the Solicitor General of the United States that the Federal Government has abandoned the use of electronic eavesdropping for "prosecutorial purposes."


Berger was closely decided. The dissents make for good reading, and Stewart's concurrence in the judgment would find the law constitutional, but its application to the facts of this case not within the boundaries of the fourth amendment.
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Thanks again for the tip. I doubt I would have found this otherwise. Do you have a summary of how this opinion has been treated since it was issued?
8.21.2007 5:24pm
Anonymous Liberal (mail) (www):
Three points:

1) I highly doubt that any litigant would make this argument because there is nothing at all to cite in support of it. Where is the constitutional language or case law that suggests that Congress lacks the authority to pass laws governing the surveillance of Americans within America? This argument is borderline frivolous, which is why the Bush administration refuses to assert it in court. Private litigants would not waste their money on it.

2) Clearly someone has the power to authorize this type of domestic intelligence gathering, whether it's Congress, the President, or both (assuming the 4th amendment doesn't bar it). So I don't see why any judge would feel compelled to reach the FISA/article II question under these circumstances. Either way the acquisition would be lawful.

3) I think JaO is right on the money. 105B's provisions only apply when the acquisition at issue is not "electronic surveillance." Because FISA only purports to provide the exclusive means of conducting electronic surveillance, under 2511(f), the president retains his concurrent authority in this area. With respect to the procedures under 105B, we would seem to be, in Justice Jackson's words, in "a zone of twilight in which [the president] and Congress may have concurrent authority." So the Article II question doesn't even squarely present itself under 105B.
8.21.2007 5:29pm
Laura S.:

Am I right that this mechanism is a way to settle the Article II question, most likely through a U.S. Supreme Court ruling?


Surely though there would be a risk of strategic rather than tactical action. The right move by the government is to not defend (or weakly defend) the statute.

Once the statute is ruled a unconstitutional intrusion upon the president's Article II powers, the game is up--and not just on this issue but on many others.

Second, I have to wonder whether a court wouldn't be quite right to declare this a political question. There is something quite fishy about the court "settling this question". That is, the court's opinion surely cannot in itself overturn the president's personal responsibility to uphold the constitution. Given that there is no plain language in the constitution to support the idea that the president must uphold the constitution as defined by the courts, the president need merely believe: he has an obligation to uphold the constitution--relying on his own determinations as to its meaning.

It is hard of course for the president to ignore the literal injunction of the due process clause. But in the literal sense due process merely circumscribes how the government may impinge upon individuals--"liberty" is not the same thing as "free will".
8.21.2007 5:34pm
cboldt (mail):
-- Because FISA only purports to provide the exclusive means of conducting electronic surveillance, under 2511(f), the president retains his concurrent authority in this area. --
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I think I understand what you mean here, but I want to amplify that in addition to providing the authority for conducting electronic surveillance, FISA also draws a box around which activities comprise this "electronic surveillance." Make that box small enough, and the snooper won't care that FISA is his sole authority for snooping "in the box."
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Similarly, 18 USC 2511 uses the legal term of art "electronic surveillance as defined in FISA," and whatever size box is drawn in FISA plays here, in the law that prohibits "electronic surveillance."
8.21.2007 5:40pm
Anonymous Liberal (mail) (www):
One other point. It's difficult to imagine a worse scenario under which to litigate this important issue. Who exactly will be standing up for Congress in this context? The DOJ attorneys? They'd be rooting for the private litigants. And the whole proceeding would be secret. That's not exactly a recipe for quality litigation.
8.21.2007 5:45pm
Just an Observer:
Another reason that this scenario does not present an Article II test is that section 105B is entirely optional for the executive. It describes an "additional procedure" that the DNI and AG "may" employ. Pursuant to that optional procedure, they "may direct" a provider or other person to facilitate the government's acquisition of information.

Further, there is nothing in the PAA that requires 105B's procedure to be invoked in support of the reasonable belief upon which section 105A relies.

So it is hard to see how anyone could argue, as Orin suggests, that this new grant of optional authority "is an unconstitutional infringement of executive power that violates Article II."
8.21.2007 5:50pm
Mark Field (mail):

That is, the court's opinion surely cannot in itself overturn the president's personal responsibility to uphold the constitution.


I think it's rather late in the day to make this argument.
8.21.2007 5:51pm
Anonymous Liberal (mail) (www):

Similarly, 18 USC 2511 uses the legal term of art "electronic surveillance as defined in FISA," and whatever size box is drawn in FISA plays here, in the law that prohibits "electronic surveillance."


Right. The procedures laid out in 105B only apply to activities that do not include "electronic surveillance." But FISA--through its exclusivity clause--only purports to be the "exclusive means by which "electronic surveillance . . . may be conducted." Therefore, at least arguably, 105B's grant of authority is not exclusive. The president retains the concurrent authority to authorize such surveillance on his own.
8.21.2007 5:55pm
Dilan Esper (mail) (www):
I think Professor Kerr is right. If Congress has the power to regulate foreign surveillance (which is the correct position, given all the express powers in Article I and the necessary and proper clause), there's no Article II problem with this law. But if the foreign surveillance power is an exclusive Article II power, as the Bush Administration contends, then the law is unconstitutional and the contempt procedure goes along with it.

A nice way of expressing this is that if the surveillance power is exclusively executive, Congress can't ban it, but Congress can't facilitate it either. This is something that executive power fetishists haven't thought a lot about when they advocate expansive readings of Article II.
8.21.2007 6:00pm
cboldt (mail):
-- section 105B is entirely optional for the executive --
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Not if a telco or ISP challenges the DOJ/NSA surveillance directive. Well, I suppose, technically, the NSA can drop the surveillance directive right there; but 105A, on it's own, does not provide for the issuance of a surveillance directive to a telco. 105A defines "not electronic surveillance," and that is the only thing that it does.
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It's the telco's prerogative to file a petition with the FISC to challenge the legality of that surveillance directive.
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-- it is hard to see how anyone could argue, as Orin suggests, that this new grant of optional authority "is an unconstitutional infringement of executive power that violates Article II." --
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If the government has probable cause to conclude that two people (two citizens even), on US soil, are involved in an activity that represents foreign intelligence information, then ANY statute that imposes a requirement for court or congressional approval is an encroachment on an Article II power.
8.21.2007 6:02pm
Just an Observer:
cboldt,

But nothing in the PAA requires or forbids any action by the executive unless he chooses to invoke section 105B for a given surveillance activity in the first place.

The statement you make here --

If the government has probable cause to conclude that two people (two citizens even), on US soil, are involved in an activity that represents foreign intelligence information, then ANY statute that imposes a requirement for court or congressional approval is an encroachment on an Article II power.


is a good proxy for the Cheney/Addington/Yoo theory, and would almost certainly lose in court. (If you are right, the FISA is unconstitutional. But that is the very theory the administration avoids testing in court.) However, section 105B does not even bump up against that theory, because the president and his subordinates are free not to invoke it at all.

As you correctly note, section 105A is entirely disconnected from 105B. So under the whole of the PAA, if surveillance is "reasonably believed" by the president or his team to be "directed at" a person abroad, that surveillance is beyond the scope of FISA and Title III because it cannot be construed to be "electronic surveillance." They are free to employ whatever method they choose to form that reasonable belief.

The president would thus be unconstrained by the statutes, and could undertake whatever surveillance of "foreign intelligence information" for which he possesses inherent constitutional authority.
8.21.2007 6:31pm
Anonymous Liberal (mail) (www):

If the government has probable cause to conclude that two people (two citizens even), on US soil, are involved in an activity that represents foreign intelligence information, then ANY statute that imposes a requirement for court or congressional approval is an encroachment on an Article II power.


Cboldt, is this really your position? Because there's really no support for this position anywhere in the constitutional case law (or the constitution). For this to be true, it would have to be the case that the President's Article II authority in this area is exclusive, that Congress has no concurrent power at all. But assuming that's not the case (which is a very safe assumption given the language of the constitution and prior case law), then Congress has the power to limit, via statute, the powers the president would otherwise have in the absence of any statute. That's what every case from Youngstown to Hamdan has held.
8.21.2007 6:51pm
cboldt (mail):
-- nothing in the PAA requires or forbids any action by the executive unless he chooses to invoke section 105B for a given surveillance activity in the first place. --
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As in a black bag job, not involving the cooperation of a non-government, third party actor such as a communications carrier or message repository?
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Or more generally, when the acquisition is obtained without a certification from the AG/DNI.
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In which case we'd have to look for laws that forbid surveillance (because otherwise, anybody who feels like it can undertake it), rather than those that authorize it.
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Back to my "two people in the US trading foreign intelligence," my sense is that the absence of a warrant here would not be determinative of the evidence coming in or being precluded. The determination would be a fact-intensive analysis, and if the facts supporting probable cause (of foreign intelligence content), then the Article II power would prevail over the statute; without invalidating the statute.
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See, e.g., President Clinton physical entry of Ames place, absent an authorizing statute. The entry did not result in invalidating FISA - it eventually resulted in adding a physical entry section to FISA.
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Too lazy to look it up at the moment ... isn't there is a catch-all clause in FISA, that nothing therein will be construed to limit Article II power.
8.21.2007 6:52pm
cboldt (mail):
-- Cboldt, is this really your position? --
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Not exactly ... or at least not exactly as literally stated. What I meant was that if a statute was construed in such a way so as to require court/congressional authorization to acquire foreign intelligence, regardless of where that foreign intelligence was acquired, to that extent the statute encroaches on an Article II power.
8.21.2007 6:55pm
Anonymous Liberal (mail) (www):

Too lazy to look it up at the moment ... isn't there is a catch-all clause in FISA, that nothing therein will be construed to limit Article II power.


You're referring to 18 USC 2511(2)(f):

Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.


This is the same section I was referring to in my previous comments. It's quite convoluted but it says, in essence, that FISA (along with Title III) do not purport to restrict the president's foreign intelligence gathering powers except with respect to "electronic surveillance." With respect to "electronic surveillance," however, FISA's provisions are intended to be exclusive and the President does not retain any residual Article II authority.
8.21.2007 7:03pm
Morat (mail):
There's also the question of "What telecommunications company would say 'No'"?

It appears at least some of the Protect America act (or whatever it was called) was denied to cover the legal butts of Telecommunications firms who were happily handing over records without having to be asked.
8.21.2007 7:08pm
OrinKerr:
Thanks for the comments, all. Just to be clear, my thought is that Congress either has the power to legislate in the area of foreign intelligence surveillance law or it doesn't. Thus a provider could raise a facial challenge to the FISA statute as a whole, challenging Congress's powers to legislate here. Some counter that Article II is more specific than that, and that the statute is divisible: that is, the statutes are only unconstitutional in application, or the power of the executive to use the statute to compel compliance is distinct from the power of the statute to limit the executive. Perhaps that's true, but I don't think that's so clear. Finally, it may be true that no provider wants to make the argument. That may be true; it depends on what kind of providers and how many the NSA is trying to contact. All you need is one "Library Connection" to raise the claim. Plus, I don't think it matters whether the client raised the claim because he really believed in it or he just wanted a test case.
8.21.2007 7:08pm
cboldt (mail):
And even my restatement is ambiguous -- or can certainly be taken the wrong way.
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I don't imagine a statute cast as "We (Congress) hereby authorize the president to obtain foreign intelligence." My point is that a statute that forbids the obtaining of foreign intelligence encroaches on an Article II power.
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At some point there will be a balance, as (maybe) the fourth amendment prohibits a broad sweep of all communications, under the justification that there is some foreign intelligence therein.
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The two-person example that I gave skipped past "how" the executive reached the conclusion that one of these two characters was passing foreign intelligence. But one that determination exists, it's not the place of congress or the courts to stand between the president and acquisition of the communications.
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I think there are some sticky, difficult and troubling issues where "foreign intelligence" and "criminal activity" intersect, and as a practical matter, I think the fourth amendment, at least regarding electronic communications, is hollow.
8.21.2007 7:09pm
cboldt (mail):
-- With respect to "electronic surveillance," however, FISA's provisions are intended to be exclusive and the President does not retain any residual Article II authority. --
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That's the part where I think there is a fair counter-argument. The counter-argument could be academic, because the fact pattern can't be produced, but ... if the executive could, as a matter of fact, obtain targeted communications containing foreign intelligence, by viewing communications on a US-based switch (see 1801(f)(2)), then this aspect of FISA-1978 would be interfering with something that most everybody agrees is a rightful Article II power.
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Under FISA-2007, communications that start or end outside of the US (if obtained by directing attention to the "outside US" part, but listening to both sides) are "not electronic communications," or said another way, are presumed to contain foreign intelligence information.
8.21.2007 7:20pm
cboldt (mail):
OrinKerr -- All you need is one "Library Connection" to raise the claim. --
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It also takes the DOJ willing to contest it. If the stakes are low enough (e.g., DOJ is on a fishing expedition), the "test case" may go just about nowhere.
8.21.2007 7:23pm
Anonymous Liberal (mail) (www):

if the executive could, as a matter of fact, obtain targeted communications containing foreign intelligence, by viewing communications on a US-based switch (see 1801(f)(2)), then this aspect of FISA-1978 would be interfering with something that most everybody agrees is a rightful Article II power


But FISA doesn't prevent the acquisition of such information. It just requires that a warrant be obtained. FISA exists in order to prevent the government from obtaining information unrelated to foreign intelligence information under the guise of obtaining foreign intelligence information. If Congress lacks the power to establish procedures and oversight mechanisms for the collection of this kind of information, then it is powerless to protect the constitutional rights of Americans from executive abuse.
8.21.2007 7:32pm
Anonymous Liberal (mail) (www):

All you need is one "Library Connection" to raise the claim.


But why on earth would a litigant do that? Talk about a pyrrhic victory. The consequences of having FISA ruled unconstitutional would be a return to the pre-1978 era of no executive accountability and no civil liberties protections. It would be disastrous.
8.21.2007 7:37pm
cboldt (mail):
-- my thought is that Congress either has the power to legislate in the area of foreign intelligence surveillance law or it doesn't --
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I think that depends on the nature of the legislation. I don't think the executive would be offended by having certain types of communications "authorized" to be acquired, by statute, because that authorization greases the skids (but is not determinative) as to the use of the acquired information in criminal or military prosecution.
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But the country got along fine without FISA until 1978, so clearly, it isn't required in order to "authorize" the surveillance.
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In general, I don't think it's possible to craft any statute to mirror exactly the line between "reasonable" and "unreasonable," of "foreign intelligence" and "not foreign intelligence," or to hew exactly the line between Congressional and Executive powers (see War Powers Act, for example); or between a government power (regardless of being exercised by statue, or executive without a statute) and the Bill of Rights. But the mere fact of there being a gap, one way or the other, does not make a statute unconstitutional. There's a reason that Courts hang-fire until a case or controversy is presented.
8.21.2007 7:39pm
cboldt (mail):
-- But FISA doesn't prevent the acquisition of such information. It just requires that a warrant be obtained. --
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Right. And there are other circumstance where it doesn't require a warrant, generally where the probability of something other than foreign intelligence being present is low.
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The point of FISA (if you believe it on its face) was to maximize privacy for people in the US, by interposing a court between the executive and the acquisition of a communication. If you're a cynic like I am, the point of FISA was to fool the public into THINKING it had privacy, so it would speak freely in front of unseen snoopers.
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But, back to its ostensible purpose, by providing a certain amount of statutory privacy, it also has the inevitable effect of making some impingement -- hopefully trivially small -- on the ability of the executive to obtain foreign intelligence information without having to obtain court approval.
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It's plain wrong to require a court's permission to obtain foreign intelligence information, and as far as I can see, FISA-1978 did not do that. The warrant requirement arises where there is a certain amount of probability of acquiring what Congress thought should be "private" communications. The court's concern at the court order stage is less on the foreign intelligence side, and more on keeping the private and criminal acquisitions within constitutional boundaries.
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At any rate, there is some tension between what a FISA statute can do in practice, and what the "pure principles" of "foreign intelligence is the executive's playground vs. fourth amendment" produce.
8.21.2007 7:53pm
cboldt (mail):
One last try at cleaning up a mess I made ...
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If the government has probable cause to conclude that two people (two citizens even), on US soil, are involved in an activity that represents foreign intelligence information, then ANY statute that imposes a requirement for court or congressional approval for acquiring the contents of THAT particular communication is an encroachment on an Article II power.
8.21.2007 8:03pm
OrinKerr:
But why on earth would a litigant do that? Talk about a pyrrhic victory. The consequences of having FISA ruled unconstitutional would be a return to the pre-1978 era of no executive accountability and no civil liberties protections. It would be disastrous.
Maybe because the litigant knows he won't win. But by losing, he'll get a precedent on the books that makes it impossible for the Executive to raise the argument in the future.
8.21.2007 8:06pm
Just an Observer:
Orin,

What do you consider "the statute?" Are you suggesting that "the statute" might be considered indivisible purely by some rule of construction, such as the legislative history of what was in the 1978 FISA "act" and what was in the 2007 PAA "act" that amended the 1978 "act?"

If so, does the codified form affect such a rule? The key "exclusive means" clause was enacted as part of the legislation called the Foreign Intelligence Surveillance Act of 1978. But that clause of FISA amended Title III and is codified under Title III in 18 USC 2511, and refers both to Title III and FISA, while the bulk of FISA is codified under 50 USC 1801 et seq. Of course, that is also where the stuff enacted in 2007 as the Protect America Act is codified.

Or are you suggesting that some higher constitutional principle, based on substance rather than construction, might require such a reading of indivisibility?
8.21.2007 8:11pm
OrinKerr:
JaO,

It's just not clear what "the statute" is this context. I'm not making any claims of grand constitutional theory, and I'm not suggesting that there is a correct answer. But I suspect a lot of judges would be eager to write an opinion in a way that gets to the constitutionality of FISA on a pretty large scale. My point is just that I think this is the most likely way to get a ruling on this question.
8.21.2007 8:17pm
cboldt (mail):
Thinking about the practical limits of "secrecy" in enforcement -- would it be hard to keep an incarceration secret, say for contempt of court? I guess, in that case, the incarcerated person can be ordered to not divulge the substance that led to the finding of contempt.
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Not that I think there will be civil disobedients ;-) If the amount of leakage regarding National Security Letters is any guide, most people who receive the orders are "appropriately" intimidated into compliance with all aspects of the orders, including the secrecy aspect.
8.21.2007 8:22pm
cboldt (mail):
There's another part of the statute that the government wants to have "binding," and that is the authority to bribe, errrrr, pay for forking over the communications. Make the carrot big enough, and providers will be competing for the right to sell your privacy, in secret of course.
8.21.2007 8:27pm
Just an Observer:
Orin,

In that case, I would join cboldt in guessing that DOJ most likely would abandon the challenged directive rather than allow the court to reach the generalized merits. No one would ever find out, AFAIK.
8.21.2007 8:31pm
OrinKerr:
JaO,

Perhaps. Depending on how it was done, though, it may or may not be easy to abandon the directive. If DOJ asks the FISA court to impose sanctions, it's then up to the FISA court: I'm not sure DOJ would have unilarteral authority to stop the court from imposing sanctions once it's clear that the provider will raise the Article II defense.
8.21.2007 8:42pm
Laura S.:

I think it's rather late in the day to make this argument.


Hardly, you're blinded by your policy position. What you would have the court do is as dangerous as the wrong you seek to fix.

Consider for instance if the 18th amendment had omitted section two but congress proceeded to institute a federal death penalty for trafficking. The president refuses to enforce the law under his determination that it is unconstitutional. The Supreme Court rules, however, the ability to enforce "section one" is implicit.

Do you still think the President MUST yield?
8.21.2007 9:02pm
cboldt (mail):
-- I'm not sure DOJ would have unilarteral authority to stop the court from imposing sanctions once it's clear that the provider will raise the Article II defense. --
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Trying to put some flesh to the provider's statutory defense (as opposed to a defense that says, "hey, this surveillance directive isn't authorized by the statute") ... the statute was followed, and the resulting directive, if implemented, will produce acquisitions that are protected by the fourth amendment as construed by [list of contemporary cases].
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FISA-2007 refers to 1801(h) minimization for qualifying a surveillance directive that involves a mixture of foreign intelligence and "other" acquisition; and as far as I know, the last word on 1801(h) minimization in light of the fourth amendment is "In re: Sealed Case 02-002."
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I believe that if a surveillance directive is modified or withdrawn to satisfy a recalcitrant provider, the case goes away. The right to modify or withdraw is entirely under the control of the authority that is promulgating the surveillance directive.
8.21.2007 9:09pm
Anonymous Liberal (mail) (www):

Maybe because the litigant knows he won't win. But by losing, he'll get a precedent on the books that makes it impossible for the Executive to raise the argument in the future.


That would truly be a bizarre case. On one side, you would have a private litigant asserting half-assed arguments that it hopes to lose. And on the other side, you would have the government responding with half-assed arguments that it hopes to lose. It would be like a boxing match where both fighters are simultaneously trying to tank the match. And it would all be happening in secret. God help us if that's how important constitutional issues are decided.
8.21.2007 10:09pm
Mark Field (mail):

Consider for instance if the 18th amendment had omitted section two but congress proceeded to institute a federal death penalty for trafficking. The president refuses to enforce the law under his determination that it is unconstitutional. The Supreme Court rules, however, the ability to enforce "section one" is implicit.

Do you still think the President MUST yield?


I don't want to divert this thread, but I think the President is obligated to enforce laws on the books. He does, of course, have prosecutorial discretion, and he can pardon or commute offenses. But otherwise he has an express Constitutional duty to execute the laws. Faithfully.
8.21.2007 10:52pm
markm (mail):

If the government has probable cause to conclude that two people (two citizens even), on US soil, are involved in an activity that represents foreign intelligence information, then ANY statute that imposes a requirement for court or congressional approval for acquiring the contents of THAT particular communication is an encroachment on an Article II power.

But where does the President get the power to require any individual or corporation to assist in acquiring the contents of that particular communication, or even to allow government agents to enter their premises and try to retrieve it from the computers themselves?
8.22.2007 10:37am
Just an Observer:
cboldt:


If the government has probable cause to conclude that two people (two citizens even), on US soil, are involved in an activity that represents foreign intelligence information, then ANY statute that imposes a requirement for court or congressional approval for acquiring the contents of THAT particular communication is an encroachment on an Article II power.


That simply begs the question about whether there is probable cause. The executive might think so, but a court might disagree. Under FISA, for anything defined as "electronic surveillance," the court must be satisfied that probable cause exists, and no such surveillance is supposed to occur without a court order (or AG certification in the case of a special target such as a foreign embassy).

That is the core of what FISA does. It "imposes a requirement for court or congressional approval for acquiring the contents of THAT particular communication."

cboldt, it seems to me that you believe FISA is unconstitutional, and just did not realize it. You do not explain the basis for your belief, but it is what it is.

However, please be aware that the proposition you assert is essentially the same proposition for which the Bush administration is avoiding judicial review. If you and Bush are right, a forthright test case could have resolved this matter in your favor years ago.
8.22.2007 11:20am
cboldt (mail):
-- But where does the President get the power to require any individual or corporation to assist in acquiring the contents of that particular communication, or even to allow government agents to enter their premises and try to retrieve it from the computers themselves? --
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As for compelling private parties, the authority (and countervailing prohibition) is found in a combination of statutory and judge-made law.
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See, e.g., USA PATRIOT Act and FISA-1978, FISA-2007 (PAA)
8.22.2007 12:08pm
Just an Observer:
cboldt,

Actually, the probable cause requirement in FISA is even more restrictive than your statement above. The court must find probable cause that the target is a "foreign power" or an "agent of a foreign power." In the case of U.S. persons, that latter category is restricted to persons who "knowingly" do one or more enumerated bad acts.

So yes, FISA does bind and regulate executive surveillance of foreign intelligence information. That is what Congress intended to do, and did so for the first time in 1978. Prior to that, Congress had expressly deferred to presidential authority in this area.

There was a minority view at the time that such binding regulations were not constitutional, but that view did not prevail. Proponents of the Article-II-trumps-all school are reopening that public debate today.

But the constitutional question never has been adjudicated. The Bush administration lawyers, however much they believe in the strong Article II theory, do everything they can to avoid judicial review of that theory because they expect it to lose in today's court. (I think their argument, if squarely presented such that it could not be ducked, would fail 8-1 or 9-0. I have seen similar prognostications from other observers, including our learned host.)

The whole point of Orin's post above is to speculate on one possible route to a court test of those merits.
8.22.2007 12:13pm
cboldt (mail):
-- cboldt, it seems to me that you believe FISA is unconstitutional, and just did not realize it. You do not explain the basis for your belief, but it is what it is. --
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No master of nuance here. I have tried to say that there is no way to test "constitutional" without a fact pattern; and that a determination of "unconstitutional" as in that test case can swing between polar opposites. One polar opposite being that the statute is construed to impinge on an executive power, and the other polar opposite being that the statute impinges on the people's right to privacy.
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The test of my hypothetical conversation between two people exchanging foreign intelligence, and being surveilled "illegally" (i.e., against the text of FISA-1978) would naturally happen in court, but only if the government tried to introduce evidence so obtained. t which point the court would decide whether that evidence comes in or not - and it could reach the conclusion of letting the evidence in without wholesale invalidation of FISA-1978.
8.22.2007 12:17pm
cboldt (mail):
-- The court must find probable cause that the target is a "foreign power" or an "agent of a foreign power." --
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I don't disagree with that. The debate is over whether Congress can compel the executive to obtain that court finding BEFORE the surveillance. My point is that, ASSUMING there is probable cause, the court will find it, whether the probable cause (or foreign intelligence, not of criminal activity) was obtained without court advance participation and concurrence.
8.22.2007 12:25pm
Just an Observer:
cboldt,

That really is not what "the debate is over" at all.

FISA does require advance approval, with certain exceptions. The primary exception is for "emergency" surveillance when the AG believes there is probable cause but cannot wait due to exigent circumstances. However, he still must submit the warrant application retroactively, and if the court finds no probable cause after all there are unpleasant consequences for the government. AFAIK, this procedure is seldom used for that reason.

The general procedure, however, is for court approval or disapproval in advance.

The constitutional debate is over the core question of whether Congress can require court approval of probable cause at all.
8.22.2007 12:40pm
cboldt (mail):
-- The Bush administration lawyers, however much they believe in the strong Article II theory, do everything they can to avoid judicial review of that theory because they expect it to lose in today's court. --
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I think they are avoiding court because the fact pattern, if it becomes known, is likely to be found a gross violation of the fourth amendment.
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Not just on the grounds of the surveillance, but on the combination of the surveillance and the secrecy. The government ran an open censorship program in WWII, and that was within 4th amendment. Arguably, today, the public is on notice that all foreign communications are subject to warrantless surveillance, and therefore cannot have a reasonable expectation of privacy in foreign communications conducted electronically. I don't buy that argument, BTW, because the government is insisting that international communications are private. I think the government is lying, and I expect the courts to engage in outcome-oriented jurisprudence that results in the fourth amendment being further hollowed.
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Just calling it like I see it -- not saying I like it or agree with it.
8.22.2007 12:42pm
cboldt (mail):
-- That really is not what "the debate is over" at all. FISA does require advance approval, with certain exceptions. --
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If the debate is merely over what FISA says, then Article II doesn't enter at all. If all you are pointing out is what FISA says, thanks, I got it, and we agree. And the surveillance in my hypothetical is clearly outside of FISA, and we are in complete agreement on that part.
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I was trying to get to the "so what" part that follows that. In fact, I did get to that part.
8.22.2007 12:46pm
cboldt (mail):
-- The constitutional debate is over the core question of whether Congress can require court approval of probable cause at all. --
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I'm not seeing the distinction you're making here. If the issue of probable cause is before a court, the court rules on it. Period.
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In the abstract, if the probable cause question relates to solely to matters of foreign intelligence, then the matter never comes before a court, because foreign intelligence is outside the courts' bailiwick.
8.22.2007 12:58pm
Just an Observer:
cboldt: The test of my hypothetical conversation between two people exchanging foreign intelligence, and being surveilled "illegally" (i.e., against the text of FISA-1978) would naturally happen in court, but only if the government tried to introduce evidence so obtained. t which point the court would decide whether that evidence comes in or not - and it could reach the conclusion of letting the evidence in without wholesale invalidation of FISA-1978.

No, a criminal case of a surveilled defendant is not the only way such illegal surveillance is signficant. Not at all.

As a matter of policy, Congress declared in that no such surveillance is allowed outside the "exclusive means" of FISA and Title III. Period. That is a pure separation-of-powers matter.

Further, Congress criminalized such surveillance. Violating FISA and Title III can be a felony. There also are civil remedies.

The practical problem is one of enforcement and threshold barriers: There is no special counsel, and DOJ will not prosecute the administration; victims of illegal surveillance, almost by definition, cannot prove they are victims, so they have a hard time establishing standing; state secrets privilege presents yet another bar.

The administration's public defense is based on statutory interpretations of FISA (the AUMF argument) or Article II. But the merits of those legal arguments have never been reached in court, except in a single case overturned on standing grounds. If the merits are ever reached in SCOTUS, the administration almost surely loses.

There are lots of ways a test case might occur with the cooperation of the administration. But Bush has adopted the strategy of a fugitive, avoiding the merits in court, which may just work for him.
8.22.2007 1:02pm
Just an Observer:
cboldt: I think they are avoiding court because the fact pattern, if it becomes known, is likely to be found a gross violation of the fourth amendment.

The Fourth Amendment has nothing to do with the core Article II question, which is all about separation of powers -- the relative powers of the president, Congress and the courts.

There also are unsettled Fourth Amendment questions relating to foreign intelligence surveillance. But these are entirely different from the separation-of-powers issue. (Actually, I think, handicappers give the administration a much better chance on the Fourth Amendment questions.)
8.22.2007 1:08pm
cboldt (mail):
-- No, a criminal case of a surveilled defendant is not the only way such illegal surveillance is signficant. Not at all. --
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You took my statement about the test of a narrow hypothetical case as representing a statement that this is the only way to test the statute.
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I meant for the statement to describe the unfolding of the narrow hypothetical.
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You raise some interesting points. I hope somebody engages you on them. It won't be me.
8.22.2007 1:09pm
Just an Observer:
Me: The constitutional debate is over the core question of whether Congress can require court approval of probable cause at all.

cboldt: I'm not seeing the distinction you're making here. If the issue of probable cause is before a court, the court rules on it. Period.

But the only way it gets before the court is that Congress, by enacting FISA, created the court's jurisdiction, and required the executive to submit proposed surveillance to that court for approval of probable cause.

The constitutional issue about FISA is one of separation-of-powers -- whether Congress could require the executive to submit to such a process, or whether the president can ignore the binding requirements of the statute.
8.22.2007 1:20pm
Philippe (mail):
Seems to me that the argument here is over subject-matter jurisdiction, since the FISA court would have no jurisdiction at all if the underlying law creating it were unconstitutional. And as such, is non-waivable and is also unavoidable, meaning it could be raised at any time, including, for the first time, in the Supreme Court. Meaning also, even if neither party raised it directly, the Supremes might be forced to look at it square in the face anyway.
8.22.2007 1:23pm
Philippe (mail):
Funny, I actually bothered to read the comments, and am more convinced than ever that Orin's "plan" is a sound one, at least from the point of view of establishing limits of the Article II power.
8.22.2007 1:30pm
cboldt (mail):
This is on my "The debate is over whether Congress can compel the executive to obtain that court finding BEFORE the surveillance," which point you you disagreed with.
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Your comment, blockquoted below, seems to be expressing the same thing in different words.

The constitutional issue about FISA is one of separation-of-powers -- whether Congress could [require the executive to submit proposed surveillance to that court for approval of probable cause.]


I do think there is an additional constitutional dimension, inevitably entwined, that being whether the act of congress and the surveillance are within fourth amendment boundaries.
8.22.2007 1:34pm
Philippe (mail):
So, some more thinking on the subject. The provider refused to observe the terms of the presidential directive. Administration goes to the FISA court and asks for provider to be held in contempt. Provider says you have no jurisdiction because of Article II. Maybe Administration anticipates this argument and goes to a regularly constituted Article III court, which ought to have jurisdiction, except provider says you this there is no jurisdiction because of FISA law, and the case should be properly before the FISA court. Now administration, in order to have court order, needs to make the Article II argument. I feel less confident about this scenario due to whether the FISA court is the exclusive means for enforcing FISA. issue. Could the administration claim a state secret privilege and still get the court order? Now that would be Alice in Wonderland.
8.22.2007 1:42pm
Just an Observer:
cboldt,

I agree there are some unsettled Fourth Amendment questions out there. I said so in comments above, here and here.

However, I am certain that when Orin is talking about "A Possible Way to Get a Supreme Court Ruling on the Constitutionality of FISA," he is talking about Article II and the separation-of-powers issue, not the Fourth Amendment.

Your own comment above with which I took issue also are about Article II, not the Fourth.
8.22.2007 2:01pm
Laura S.:

But where does the President get the power to require any individual or corporation to assist in acquiring the contents of that particular communication, or even to allow government agents to enter their premises and try to retrieve it from the computers themselves?

Simple: He does not. Any attempts at compulsion would be unenforceable without a statute--as to do otherwise would violate the plain language of the due process clause.


I don't want to divert this thread, but I think the President is obligated to enforce laws on the books. He does, of course, have prosecutorial discretion, and he can pardon or commute offenses. But otherwise he has an express Constitutional duty to execute the laws. Faithfully.

But this isn't a diversion. You still haven't come to grips with my allegation that a right minded court would refuse to hear this case under the political questions doctrine.

I have to say: I draw a strong distinction between the government listening in on my telephone calls and the government using either those calls directly or the fruit thereof in a criminal prosecution. The former is "rude" but the illegality their of comes from the wiretap act, the pen register statute, etc. As you concede earlier, the president posses discretion on the enforcement of statutes. Conversely, the latter is facially repugnant to the constitution.
8.22.2007 2:46pm
markm (mail):
cboldt (mail):

As for compelling private parties, the authority (and countervailing prohibition) is found in a combination of statutory and judge-made law.
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See, e.g., USA PATRIOT Act and FISA-1978, FISA-2007 (PAA)

But we were considering the hypothetical that the legislation is overturned...
8.23.2007 11:51am