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More on the NSA Surveillance Program Inside the Bush Administration:
Today's WaPo has more details from Barton Gellman's new book, Angler. It's a must-read for those who followed the NSA surveillance story in 2005 and 2006.
cboldt (mail):
It's well written - riveting.
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The real bottom-line question remains, hidden behind "state secret," with the assistance of Congress. Just what sort of "suspicion" is necessary to trigger a "warrantless intrusion" into one's communication?
9.15.2008 12:59pm
Oren:

"We could have gone to Congress, hat in hand, the judicial branch and the executive together, and gotten any statutory change we wanted in those days, I felt like," he said in an interview. "But they wanted to demonstrate that the president's power was supreme."

Speaks for itself, really. The 108th Congress was heavily GOP and would have given a much better deal than the 110th did. So, in essence, Bush sold out the substantive policy in the GWOT for what? A symbolic statement about the declining executive that has now been repudiated?
9.15.2008 1:12pm
cboldt (mail):
-- "But they wanted to demonstrate that the president's power was supreme." --
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But if the legal rationale depended on the AUMF, then the "supremacy of the executive" argument is not about executive supremacy. It is more about being able to operate a government in the shadows.
9.15.2008 1:24pm
OrinKerr:
cboldt,

I believe the AUMF argument wasn't adopted until the post-hospital visit reauthorization.

Oren,

That quote from Judge Lamberth was the one major offnote of the piece, I thought: What is a federal district court judge doing talking about going hand in hand, executive and judiciary, seeking legislative change, as a "we"? Strange, I thought.
9.15.2008 1:32pm
Al Maviva (mail):
Orin, I don't think it's all that strange. If you start from the premise that the FISA scheme is a Congresional beast and not a constitutionally required warrant process, existing in that strange never-never land alongside "independent agencies," GAO audits recommending policy changes and Offices of Inspector General that report directly to Congress, then it doesn't seem out of place. Instead, it looks like what it is, one of the leaders of a jerkily-functioning hybrid entity that lacks strong constitutional basis trying to coordinate with the coordinate branches in an attempt to make the damn thing work properly.

Moreover it reminds me of how things actually function at those intersections of the branches, places where the branches have to cooperate to get things done - such as administrative processes that regularly involve courts and also implicate congressional interests, like immigration adjudication. The highly classified nature of the FISA court and the tight oversight applied by the four congressional leaders appears to cause a greater degree of intimate communication between the branches, but that is a question of the degree of coordination, not of type.
9.15.2008 1:48pm
Al Maviva (mail):
Orin, I don't think it's all that strange. If you start from the premise that the FISA scheme is a Congresional beast and not a constitutionally required warrant process, existing in that strange never-never land alongside "independent agencies," GAO audits recommending policy changes and Offices of Inspector General that report directly to Congress, then it doesn't seem out of place. Instead, it looks like what it is, one of the leaders of a jerkily-functioning hybrid entity that lacks strong constitutional basis trying to coordinate with the coordinate branches in an attempt to make the damn thing work properly.

Moreover it reminds me of how things actually function at those intersections of the branches, places where the branches have to cooperate to get things done - such as administrative processes that regularly involve courts and also implicate congressional interests, like immigration adjudication. The highly classified nature of the FISA court and the tight oversight applied by the four congressional leaders appears to cause a greater degree of intimate communication between the branches, but that is a question of the degree of coordination, not of type.
9.15.2008 1:48pm
Oren:

What is a federal district court judge doing talking about going hand in hand, executive and judiciary, seeking legislative change, as a "we"? Strange, I thought.

Strange, yes, but I think the point was that the judge could be a powerful witness to the unworkability of the current system.

In the (oft-cited) baseball analogy of the law, if the pitching coaches complained to the comish about how the balk rule was arbitrary, I think it would be highly informative for him to ask the umpires what they thought. If they admitted that they had trouble applying it uniformly and felt that, despite their best efforts, it was indeed arbitrary, that should weigh heavily on the comish's decision.
9.15.2008 1:48pm
Anderson (mail):
What is a federal district court judge doing talking about going hand in hand, executive and judiciary, seeking legislative change, as a "we"?

I can see where the chief of the FISA court would find himself compelled by the law to rule against the feds, while having valuable opinions as to whether the law should be changed.

To revive a popular metaphor, an umpire's opinion may be valuable as to whether a rule of baseball should be changed, even if he's duty-bound to apply the rule he thinks bad until such change is made.
9.15.2008 1:51pm
Anderson (mail):
-- Oy, should've hit refresh before posting. It's "great minds" that think alike, right?

N.b. this rare agreement b/t me, Oren, and Al Maviva.
9.15.2008 1:52pm
Dilan Esper (mail) (www):
That quote from Judge Lamberth was the one major offnote of the piece, I thought: What is a federal district court judge doing talking about going hand in hand, executive and judiciary, seeking legislative change, as a "we"?

I share Professor Kerr's reaction to this. It's not that Lamberth is wrong-- I think he is substantively correct that the President could have gotten amendments to FISA and the amendments would be upheld in court. He's also correct in a legal realist sense about how the FISA system works-- the FISA court, with only a few exceptions, has basically worked with administrations and has not been a particularly adversarial forum and is certainly different from most courts.

But nonetheless, you don't want judges saying this. The same quote coming from a powerful member of Congress would have been fine, but the courts are supposed to see themselves as impartial adjudicators of cases, not members of "the team".
9.15.2008 3:33pm
Oren:
Dilan, an impartial arbiter might still comment on the unworkability or irrationality of the rules while maintaining neutrality.
9.15.2008 4:20pm
PLR:
Dilan, an impartial arbiter might still comment on the unworkability or irrationality of the rules while maintaining neutrality.

And if the arbiter is holding hands with the one who appointed the arbiter, I would seriously question his neutrality.
9.15.2008 4:31pm
The Unbeliever:
So we're throwing out the whole "checks and balances" thing, where each branch is supposed to scrabble for power against the other, in favor of the legislative?

I suspect that'll last as long as it takes for a substantial question of social policy to come up before the courts. Then all of a sudden, legislative say-so will suddenly become insufficient again.
9.15.2008 5:06pm
Anderson (mail):
Judges are part of the government. Three co-equal branches, right?

If judges find themselves applying rules in *any* situation that they think lead to unjust results, then they are entitled to complain to Congress about that. Heck, I would've thought they had a *duty* to do so.

If judges disagree with the mandatory sentencing guidelines imposed by Congress, are they ethically required to keep quiet about it?
9.15.2008 5:11pm
OrinKerr:
Anderson,

Why does it matter if judges are part of the government? And who does a federal district judge represent when he lobbies for legislation? Himself? His district? The federal judiciary? The law as an abstract ideal?
9.15.2008 5:32pm
Al Maviva (mail):
Don't get me wrong. I think the notion of the FISA court is probably ultimately unconstitutional, at least in respect to wartime exercise of the CINC powers against those individuals from nations at war with the U.S. Snooping on civilians, not in wartime - okay, fine, I can see the FISA court as an inferior court, perfectly legit and with some powers over the Executive. Surveillance of declared enemies in wartime, at least when those under surveillance are citizens of a state at war with the U.S. and apparently doing business on behalf of that state? I think that may impermissibly encroach on the CINC power. Right now isn't a great time to have that discussion though, there are bigger problems afoot.

What I see as acceptable is that a judge acts within ethical bounds to speak out on how to improve the law, and in wartime-or-something-very-much-like-it, it is incumbent on the government as a whole to make the damn system work. The stakes are really high right now, and sometimes, legal formalism has to suffer in the interests of getting the right result - this isn't a social policy squabble when you're looking at possible immolation of U.S. cities. Sometimes the government needs to make a practical decision about how to dispose of a tough problem in a practical way. Sticking to a decent respect for the co-equal branches, and seeking to apply some form of process to surveillance of individuals who don't fit neatly into any legal category, strikes me as a good thing, maybe not expressly provided for in the Constitution but in keeping with the originalist structure of checks and balances. For the same reason I think ex parte Quirin was correctly decided, I think Lamberth's thought process is correct in this context - the context of 2004, 4 years nearer the 9/11 attacks than we are today.

Anderson - thus endeth the agreement, I suspect.
9.15.2008 5:35pm
Anderson (mail):
What is a federal district court judge doing talking about going hand in hand, executive and judiciary, seeking legislative change, as a "we"?

Is it the cooperation w/ the executive that bothers you?

Or is it "who does a federal district judge represent when he lobbies for legislation"?

I think that the judge represents the public, which chose the officials who nominated and confirmed his appointment to the bench, and which has an interest in justice.

As for the cooperation w/ the executive, you've seen enough of me to guess that cooperation with *this* White House is likely to alarm me. But even with that in mind, I just don't see the problem, in general terms.

Also, there's the specific nature of the present issue. The judge is by definition one of the very few people in the U.S. to be reasonably well-informed about the classified details. He is thus especially well-suited to provide Congress with advice about whether the laws governing the program in question need to be changed, and why he thinks so.
9.15.2008 5:39pm
Anderson (mail):
Anderson - thus endeth the agreement, I suspect.

Well, it was pretty while it lasted.

But y'know, if the judge thought like that -- re: the CINC powers &all -- then I would want Congress to hear that from him. We might even get hearings on the subject, and legislation enacted that would recognize the issue &stake out Congressional territory.

Right now, much of the problem is the lack of clear lines &legal precedents -- we're basically arguing about Youngstown, a 50-year-old case with no clear rationale for its holding. So I think Congress should be interested in clearing up those legal lines, and I think the advice of the judiciary -- as opposed to advisory opinions, natch -- is well worth having.

So, a *bit* more agreement than you might've thought.
9.15.2008 5:43pm
Ignatius (www):
The article makes President look good and bad. Bad for the fact that he allowed Cheney to have so much power and that he had such little control over his staff that he did not know of DOJ's objections until the last minute. But he looks good for the fact that he went along with Comey's proposed changes. Sure, it was March 2004 and part of that decision was to save himself politically, but I think he understood that DOJ had legitimate arguments. That he gave in to Comey shows that he knows when exercise the stubborness he's known for.
9.15.2008 6:05pm
Ignatius (www):
when not to exercise
9.15.2008 6:09pm
Anderson (mail):
But he looks good for the fact that he went along with Comey's proposed changes. Sure, it was March 2004 and part of that decision was to save himself politically, but I think he understood that DOJ had legitimate arguments.

I don't quite get that from the article:

And there it was, unfinessable. Bush was out of running room, all the way out. He had only just figured out that the brink was near, and now he stood upon it.

Not 24 hours earlier, the president had signed his name to an in-your-face rejection of the attorney general's ruling on the law. Now he had two bad choices. March on, with all the consequences. Or retreat.

The president stepped back from the precipice.


That's Gellman's spin, of course, but I don't see anything to contradict it. The way it's written, Bush doesn't show any sign of coming around until he's faced with Mueller's resignation as well as Comey's.

We have, on the one hand, likely Gellman spin to cast Bush in an unfavorable light, vs. OTOH a likely desire by Comey et al. to portray what might seem like breaches of confidence -- the details of private conversations come from them, obviously -- as a higher duty to the President and the country. (N.b. the theme of "the tsar has evil counselors.") So it behooves them not to dump on Bush.
9.15.2008 6:20pm
Oren:

And who does a federal district judge represent when he lobbies for legislation? Himself? His district? The federal judiciary? The law as an abstract ideal?

Therein lies the difference. I don't see the judge "lobbying" for legislation, I see him honestly reporting to the Congress (or the relevant committee) about his experience applying the law they wrote. That is to say, his words are testimonial not rhetorical.
9.15.2008 7:28pm
Oren:

Surveillance of declared enemies in wartime, at least when those under surveillance are citizens of a state at war with the U.S. and apparently doing business on behalf of that state?

This is a dishonest way to phrase the question. No one has ever (AFAIK) objected to surveillance of declared enemies. Some of us have problems with surveillance that does not have adequate control to ensure that the targets are, in fact, enemies.
The stakes are really high right now, and sometimes, legal formalism has to suffer in the interests of getting the right result
Absolutely. That's why I support President Obama's gun confiscation program which, despite some legal formalities, is essential for protecting us against terrorist gangs. Of course, such a program could easily be shown to be numerically more beneficial than than anything in the GWOT (since reducing gun-related deaths by 5% is the equivalent of reducing terrorism-related deaths by 100%, it follows that even if the GWOT were bulletproof, it would still be inferior to a 5% drop in murder).

The "right result" is the one where the President actually listens to his oath of office which commands him to protect, preserve and defend the Constitution -- not to take the most expedient method. Even more damning, as I said earlier, is the fact that nothing in the program needed to change if they just had Congress reword a few sections here and there. The 108th Congress just plain wouldn't turn them down.
9.15.2008 7:37pm
Randy R. (mail):
"The stakes are really high right now, and sometimes, legal formalism has to suffer in the interests of getting the right result.

And the right result is what? in a perfect world, the gov't would only listen in on actual terrorists, and leave everyone else alone. But we don't live in a perfect world, and inevitably, you are going to have the gov't listening in on your conversations and mine. When does it end? How are you ever going to be sure there will never ever be another terrorist attack, and to the program can be scrapped?

This is exactly how liberty ends -- not with a bang, but with a series of small minor cuts that always seem reasonable.
9.15.2008 7:49pm
Randy R. (mail):
You know, it's really interesting. People have this view that the gov't's primary job is to protect us all from terrorists, and they are willing to give up any and all liberties in order to do so. Safety first!

If the gov't's job is to protect us all from death, then we should be spending our billions not on war, but on traffic safety. Far more people die or are permanently injured due to car accidents than have ever died from a terrorist act or series of acts. Or how about giving us all free statins to protect us from heart attacks, another leading cause of death in America?

but no -- we are supposed to give up our liberties in the very unlikely chance we will die from a terrorist attack. So is the gov't supposed to protect us from death only from enemies, and not from natural causes, or accidents? If so, please direct us to the proper language in the constitution.
9.15.2008 7:54pm
gwinje:
I'm a solid Obama supporter, and after reading this article, I would like to see these lawyers at the top of anyone's justice department. I'm really impressed.
9.15.2008 8:02pm
Oren:

I'm a solid Obama rule of law supporter, and after reading this article, I would like to see these lawyers at the top of anyone's justice department.


Fixed it for you. Rule of law is not a partisan endeavor -- that's left for the legislature (at least under the quaint form of government I thought we had).
9.15.2008 8:16pm
Bruce Hayden (mail) (www):
And the right result is what? in a perfect world, the gov't would only listen in on actual terrorists, and leave everyone else alone. But we don't live in a perfect world, and inevitably, you are going to have the gov't listening in on your conversations and mine. When does it end? How are you ever going to be sure there will never ever be another terrorist attack, and to the program can be scrapped?
Except that there is no evidence that the government listened into either your calls or mine. None. I think the answer on where it will end is that we don't know. How to protect us? Best answer is what is happening right now - checks on and reviews of the process.
9.15.2008 9:48pm
Bruce Hayden (mail) (www):
Let me add to my last post concerning when things will end - I am worried a lot more about the TSA security procedures, that millions of us have to endure routinely every time we fly. When will that agency go back to realistic security precautions? Likely never, regardless of the real threat, as evidenced by their total disconnect between the precautions they enforce and any possible threat. At least the revisions to FISA, etc. are an attempt at reasonable oversight. There is nothing reasonable about TSA in view of actual threats.

On 9/11/01, hijackers hijacked four very large jets and flew three of them into buildings, collapsing two of them, and causing significant damage to the third. The fourth though crashed in a field in PA thanks to the heroism of its passengers, and thus wasn't flown into a fourth building.

So, the prohibitions on knives, box cutters, etc. make some sense, despite new flight crew procedures and hardened doors, in preventing hijackings. But what about the rules against liquids, shoes, etc.? They are in response to attempts, etc. at blowing up planes. But so what if terrorists blow up planes? They wouldn't be hitting buildings, but rather pretty much only killing those onboard, and even then, there is a decent chance that those foiled attempts wouldn't have brought down the respective planes.

So, the added TSA security measures are not designed to prevent another 9/11 type hijacking, but rather, a totally different, much lesser, threat. Yet, TSA routinely goes through my luggage, etc. and that of many other travelers, with far less justification than the NSA has for their much less intrusive electronic evesdropping.
9.15.2008 10:02pm
gwinje:
Oren,

Sorry for not making this clear: my point was that as a person who normally wouldn't agree with them on policy, their staunch support for the rule of law made me want them in charge of DOJ.
9.15.2008 11:24pm
Christopher Cooke (mail):
Professor Kerr: I am confused, what does this have to do with Sarah Palin's nomination? I am missing the connection.
9.15.2008 11:30pm
Milhouse (www):

"We could have gone to Congress, hat in hand, the judicial branch and the executive together, and gotten any statutory change we wanted in those days, I felt like," he said in an interview. "But they wanted to demonstrate that the president's power was supreme."

That's the motive he ascribes to them. But in the account of Cheney's meeting with the Congressional leaders we see a different motive:
Cheney asked the lawmakers a question that came close to answering itself. Could the House and Senate amend surveillance laws without raising suspicions that a new program had been launched? The obvious reply became a new rationale for keeping Congress out.

If it really was so obvious that this wasn't possible, then doesn't that make this a plausible motive?

Another problem I have with the article:
That was misleading at best. Cheney and Gonzales knew that Comey spoke for Ashcroft as well.

How did they know this? I don't recall anything in yesterday's excerpt that supports this. All they seem to have had was Comey's word, and they clearly didn't trust him.
9.16.2008 4:44am
Anderson (mail):
Except that there is no evidence that the government listened into either your calls or mine. None.

Bruce, that's because the government is keeping the evidence secret.

The "no evidence" tactic smacks of bad-faith argument, unless you were somehow unaware that the feds are in fact declaring that it's a "state secret" who's been spied upon.
9.16.2008 10:06am
Al Maviva (mail):
Likely never, regardless of the real threat, as evidenced by their total disconnect between the precautions they enforce and any possible threat.

Right on, Bruce. There's no relation between what TSA looks for, and what terrorists might actually do. Because nobody would ever attempt to take down airliners using bombs made from small containers of liquid explosives, improvised explosive devices built into shoes, or bombs made to look like commmon electronic devices. Stooooopid TSA...
9.16.2008 11:23am
Oren:
Al Maviva, virtually every credible explosives expert and chemist that has reviewed those plans has concluded that they would not work. So they aren't really liquid explosives, they are just regular liquids that some crazy terrorists things he can whip into explosives. Which he can't.
9.16.2008 11:52am
Voting for Batman:
So *this* is part of the VP's job, right? Good to know!
9.16.2008 2:14pm