The FISA Court Is Upset

by hilzoy

From the Washington Post:

"The presiding judge of a secret court that oversees government surveillance in espionage and terrorism cases is arranging a classified briefing for her fellow judges to address their concerns about the legality of President Bush's domestic spying program, according to several intelligence and government sources.

Several members of the Foreign Intelligence Surveillance Court said in interviews that they want to know why the administration believed secretly listening in on telephone calls and reading e-mails of U.S. citizens without court authorization was legal. Some of the judges said they are particularly concerned that information gleaned from the president's eavesdropping program may have been improperly used to gain authorized wiretaps from their court.

"The questions are obvious," said U.S. District Judge Dee Benson of Utah. "What have you been doing, and how might it affect the reliability and credibility of the information we're getting in our court?" (...)

Two intelligence sources familiar with the plan said Kollar-Kotelly expects top-ranking officials from the National Security Agency and the Justice Department to outline the classified program to the members.

The judges could, depending on their level of satisfaction with the answers, demand that the Justice Department produce proof that previous wiretaps were not tainted, according to government officials knowledgeable about the FISA court. Warrants obtained through secret surveillance could be thrown into question. One judge, speaking on the condition of anonymity, also said members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass the court. (...)

Benson said it is too soon for him to judge whether the surveillance program was legal until he hears directly from the government.

"I need to know more about it to decide whether it was so distasteful," Benson said. "But I wonder: If you've got us here, why didn't you go through us? They've said it's faster [to bypass FISA], but they have emergency authority under FISA, so I don't know.""

If any of the judges are talking about disbanding the FISA court in protest, they must be seriously annoyed.

As it happens, though, the article contains an explanation of the government's reasons for bypassing the FISA court (out of order; the following quote appears between the second and third excerpts above):

"One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.

"For FISA, they had to put down a written justification for the wiretap," said the official. "They couldn't dream one up.""

Gosh: they needed to have an actual reason to place citizens under surveillance? Talk about onerous requirements! This might be an even more pitiful explanation for not using FISA's emergency provisions than the one offered on Monday by General Michael Hayden, the Principal Deputy Director for National Intelligence:

"GENERAL HAYDEN: FISA involves the process -- FISA involves marshaling arguments; FISA involves looping paperwork around, even in the case of emergency authorizations from the Attorney General. And beyond that, it's a little -- it's difficult for me to get into further discussions as to why this is more optimized under this process without, frankly, revealing too much about what it is we do and why and how we do it."

FISA involves not just actual paperwork but marshaling arguments! What a concept! Still, I suppose I should cut them some slack: after all, it has been obvious for some time that marshaling arguments is something this administration finds difficult. At least now they're admitting it.

***

While I'm being snarky, I have to note this gem from Bush's press conference on Monday:

"Q Thank you, Mr. President. I wonder if you can tell us today, sir, what, if any, limits you believe there are or should be on the powers of a President during a war, at wartime? And if the global war on terror is going to last for decades, as has been forecast, does that mean that we're going to see, therefore, a more or less permanent expansion of the unchecked power of the executive in American society?

THE PRESIDENT: First of all, I disagree with your assertion of "unchecked power."

Q Well --

THE PRESIDENT: Hold on a second, please. There is the check of people being sworn to uphold the law, for starters. There is oversight. We're talking to Congress all the time, and on this program, to suggest there's unchecked power is not listening to what I'm telling you. I'm telling you, we have briefed the United States Congress on this program a dozen times."

A 'check' is something that is capable of stopping you from doing whatever you want. Telling several members of Congress what you are doing is not a 'check', especially not when those members are sworn to secrecy about everything you tell them. This is like saying that the fact that your parents could have stopped you from joining the Marines, since, after all, you did call them from boot camp to tell them that you had enlisted.

As for the President's word of honor operating as a 'check', the less said about that, the better.

Comments

[bob mcmanus]

Not snarky enough, because you left this out:

"To say "unchecked power" basically is ascribing some kind of dictatorial position to the President, which I strongly reject." ...Bush

Nixon's famous soundbite:"I am not a crook."

Bush:"I am not a dictator."

[Meteor Blades]

Couldn't they just have said the proposed target of "eavesdropping" knew where Saddam's WMDs were hidden? Wouldn't that be reason enough. I mean, what's a few lies when national security is at stake?

[etc.]

I don't know if this is quite on topic, but from 1775-83 this country fought a war with England over several issues.

Among them was the use of what were called "writs of assistance." In effect, they allowed warrantless searches. In practice, a judge was persuaded to issue search warrants that left the place to be searched blank, and the officer of the crown would fill in the particulars on the spot. These had the virtue of fufilling the letter of the law, if not the spirit.

In the current imbroglio, it would appear that the Bush administration is less scrupulous about following the letter and spirit of the laws than were the agents of King George III.

[felixrayman]

All talk.

What are you going to DO about it?

[Jesurgislac]

Felix, as I understand it, the only people who can "do" anything about Bush breaking the law and getting away with it, are the Republican majority in Congress.

Prior to November 2004, the US public had at least in theory the power to elect a different President, but enough of them preferred the criminal incompetent with an (R) after his name to anyone better with a (D).

I've no idea what the odds are of a majority Democratic win in Congress in the midterm elections: but that would be the only possibility of getting Bush impeached.

Bush has acted illegally, and plainly knows perfectly well that he can continue to do so without any let or hindrance. The only chance of stopping him was in November 2004.

[CharleyCarp]

FRM, talk's not nothing. If the story has legs, and it seems as if it might, Congress will have to have hearings, and the cards will get onto the table. That's one track. Without talk, Congress does nothing.

I'm not sure how much good talk does with the FISA judges, but they seem fairly heated up as it is. I would guess, though, that even they will feel less deferential if they find that society is less deferential.

I don't know what you think you can do besides talk. More precisely, I don't know what you think you can do that would be more effective than talk.

[Slartibartfast]

I'm sort of torn on this one: although hilzoy can hand me my head, so to speak, where talk is concerned, I think I can probably take her in personal combat. Maybe her and Katherine, together.

Ok, stop thinking that. THAT, that thing you're thinking: knock it off.

[Will]

It is refreshing to see conservatives like Judge Luttig take a stand against this administration:

"For, as the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake –- an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror –- an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be."

[Slartibartfast]

So, this guy thinks the worst thing that we've done is perhaps leaving a bad impression? I could live with that, but PR isn't really my gig.

[Will]

It is actually a fairly stinging rebuke to the White House. translation: "Your actions now make it seem like you lied to us the first time."

[Ugh]

"One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.

One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the conviction process demanded too much: proof beyond a reasonable doubt and due process.

[blogbudsman]

There is no controlling legal authority that says this was in violation of law. You'll be right, not my words.

[Ginger Yellow]

Screw Luttig. Either the evidence (and the constitution of course) supported Padilla's indefinite detention or it didn't. That was Luttig's job to decide. The legality of his (in my opinion unconstitutional) detention doesn't depend on the charges ultimately brought.

[CharleyCarp]

BBM, yeah, statutes aren't controlling legal authority. Wait, is there controlling legal authority that statutes are controlling legal authority? And isn't that just advisory anyway?

What we're left with, in the view of the Pres, is his oath of office, enforceable only by the Divinity.

I do see your point though. It is absolutely more important, in the grand scheme, that we know whether fundraising calls can be made from specific phones than it is that we know whether unambiguous criminal statutes -- with specific provisions dealing with time of war -- are binding on the President.

[Will]

Ginger Yellow:
I agree that his detention was not constitutional. However, I think Luttig did the correct thing in this decision.

[lily]

There are some Republicans that are upset about this: Olympia Snowe and that California Congressman, (Bark? Barb? ), for example.

Talk does help. So does griping to your Congressperson and your neighbors and the Letters to the Editor. Call radio talk shows and argue there. What doesn't help is to give up.

My greatest fear isn't that Bush will get away with this stuff; it's that the Republican party will get away with it under the illusion that the rot is particular to this administration and not endemic to the party itself. Bush reflects accurately the values and attitudes of the power players of the party. He isn't a fluke. This is the party of the Johnson County War, Teapot Dome, the Red Scare of the early part of the last century, the McCarthy Era, Watergate and Irancontra. It's the Olympia Snowe-type Republicans who are the oddballs. Another action us ordinary citizens can take: get involved in the Congressional races, even the ones outside your district. DailyKos and MyDD have contact information regularly.

[Slartibartfast]

It is actually a fairly stinging rebuke to the White House.

Ah, but it gives the impression of agreeing with what the WH is doing, while making style commentary. And impressions are important!

[CharleyCarp]

Slart, I assume you haven't read the whole thing. The government's request was denied, and not just denied, but denied because if news reports are true -- and the court does say one way or the other -- the government's action brings the judicial system into disrepute.

That's about as stinging as it could get under the rule at issue. Judge Luttig doesn't have to worry about reporters camping out in his front yard next time there's a Supreme Court vacancy.

[CharleyCarp]

Doesn't say!

[Slartibartfast]

Read which whole thing?

[CharleyCarp]

Hey I just got the 'bot detector for the first time. And noticed that I'd misspelled 'doesn't.'

[CharleyCarp]

The Fourth Circuit opinion from which Will quoted at 8:48.

[cleek]

Another action us ordinary citizens can take: get involved in the Congressional races

i've already vowed to work against E. Dole, after her support of Rove's "them librulz is workin for the other side" remarks. a few years to wait on that, though.

[Slartibartfast]

But which he didn't link to, so I'm kind of left out in the cold, so to speak.

Sorry I'm not as much up on where to look for the latest in legal commentary; it's probably obvious to most of you lawyers.

[Ginger Yellow]

Will, it doesn't really matter (for the purposes of this discussion) whether the detention was constitutional. The point is that before this, Luttig accepted the government's argument that Padilla's military detention was justifiable because of the national security risk. This judgement either was or should have been made on the basis of evidence the government provided, not on the basis of what charges the government might in future have made. Someone doesn't become a security risk because you call them a terrorist. They become a security risk because you have evidence they are a terrorist.

[hilzoy]

Slart: link here.

I have read it, and it was stinging. The 'impressions' part: I read it as saying something like: well, the government has done this, and while it might have some conceivable reason for doing what it did, it certainly seems to be completely awful. Sort of the way I sometimes write to trolls: well, you might have an argument that I'm unaware of, but you certainly seem to be making no sense at all.

Polite, and I cover my bases, but it's not meant to be just about appearances.

[Barry]

Slart, the way that I saw Luttig's decision explained was that it was clear that the administration was trying to game the judiciary. The administration held Padilla as an enemy combatant, under military control, until it was clear that the Supreme Court would hear the case (and wasn't a sure thing to uphold the administration's power). At that point the administration wanted to transfer Padilla to the civilian criminal justice sytem, and charge him under other charges.

This was clearly an attempt to keep the Supreme Court from ruling on this, when they would probably rule against the administration, and follows a pattern that the Bush administration has followed every since 9/11, with these detentions. Whenever a real test comes, they slime out of the matter - such as with Hamdi, who was sent to Saudi Arabia.

Some people really hate this sort of slimy greasy dishonesty, even when they should, due to partisan reasons. The past few years have show how 'right-wing libertarian' really means 'right-winger', and how 'libertarian' has too often meant 'right-winger'; it's refreshing to see somebody stand up against his own party in rejecting this sort of slimy, greasy dishonesty.

[Ugh]

I think Luttig was saying to the government: you either (a) lied to us or (b) based your arguments on inadmissible evidence, either way, you'll now have to explain your actions to the Supreme Court, have fun.

[CharleyCarp]

Slart, I did not intend my remark to you to be a rebuke of any kind. It was clear that you hadn't read the decision, and no one expects you to go looking for 4th circuit decisions whenever someone mentions one. (11th Circuit decisions, of course, are a completely different matter!)

I agree with others above that Luutig's original opinion was wrong. It's worth noting, though, that it was an appeal from a grant of summary judgment, and that the case was sent back for hearing on the evidence. I think the government was trying hard to avoid cert, but that avoiding the evidentiary hearing in the D.S.C. may have been as important to them. The evidence they have of the apartment bombing plot is quite likely inadmissible. So even if cert is denied, they'd still have to face trying to get that evidence in -- either way, the Fourth Circuit would've gotten the case back, and the reaction, once the facts of how the evidence was obtained were solidly in the record, would likely have been even worse than this. This has been a no-win case for the government from day one, it's just taken them this long to see it. The courts are going to give a lot of leeway in allowing protective measures, but are not going to pervert the laws of evidence.

[Slartibartfast]

OK, thanks for the link, hilzoy. I did a cursory reading, and although the part Will actually quoted above still seems rather innocuous presented out of context of the rest as it was, the rest is, I agree, pretty scathing.

Maybe scathing isn't the right word, but I couldn't come up with a better one.

[Slartibartfast]

There's a line from a movie that does a decent job of describing the government's handling of this case (as well as quite a few other things), but the language of it keeps me from quoting it here.

Days of Thunder. Something about a monkey, a football, and unnatural acts.

[Anderson]

Slart, don't let the lawyerspeak fool you. I would just about cry if a federal circuit court wrote like that about me.

I've suggested elsewhere that this stately prose,

The indictment of Padilla in Florida, unsealed the same day as announcement of that indictment, made no mention of the acts upon which the government purported to base its military detention of Padilla and upon which we had concluded only several weeks before that the President possessed the authority to detain Padilla, namely, that Padilla had taken up arms against United States forces in Afghanistan and had thereafter entered into this country for the purpose of blowing up buildings in American cities, in continued prosecution of al Qaeda’s war of terrorism against the United States.

translates into everyday speech as "Thanks for setting us up, you lying bastards!" Think of it that way and you'll see why lawyers are making much of this.

[Confederate Yankee]

The two current presiding judges of the FISA court have been "in the loop" on the NSA executive order issued by Bush from the very beginning, as has the Justice Department, which helped craft the language.

Based upon reading relevant court briefings and case law (a great way to get to bed, FWIW) the upcoming FISA court briefing will likely be reviewing overzealous congressional activism at least as much, if not moreso, than any executive overreach. It is this possibility of congressional activism that as one of the judges already wondering if the FISA court should be disbanded.

Many people right, left, and center still have the wrong-headed image of guys in a cramped-smoky room listening to conversations via headphones. That is not how things work at NSA.

The NSA uses complex mathematics, including pattern matching, to conduct scans of data mechanically without human eyes ever seeing it, unless certain classified (and therefore unknown) triggers are set off. This is how Echelon, a program that scans every single overseas call (something like 3 billion a day, isn't it?), has worked since the Clinton years without any significant public outcry or infringement.

The Bush executive order, it seems, more finely targets these mechanical scans using today’s more advanced technology, which is far more capable and precise than anything dreamed of in 1978, or during the Clinton years when Echelon was born to filter out the 99.99+% of information that is non-terror related.

It seems highly likely that the Bush executive order would make your personal calls, emails and faxes therefore less likely to come under human review where your rights could be violated.

Somehow, I doubt that tidbit will make it to your weekly “impeach Bush now” rally.

[CharleyCarp]

Overzealous congressional activism?

You mean saying that eavesdropping on a US person's conversation is a crime, right? Or do you mean passing the FISA amendments the Admin asked for in the Patriot Act?

I'm not sure what other "overzealous" congressional action you could be talking about. OK, I suppose you could say that the AUMF was overbroad. Somehow I doubt the DOJ and NSA will be presenting that view to the FISC.

[Francis / BRGORD]

CY: i would appreciate a shred of evidence regarding Congressional activism. Last I checked, NSA doesn't take direction from the Speaker of the House.

[Jay Severin Has A Small Pen1s]

Congress should move to dissolve the FISA court and the act itself.

Republican's would be for it since they feel that the President has the power to do it without them

Democrats can oppose it since they feel that it's important to have.

I think it would be a politically bold move on the part of the Dems.

[Anderson]

Why do arguments for federal power, made by people who name themselves after traitors against the federal government, have a hollow sound to me?

[machinemess]

But, Confederate, even given your technical explanation with apologist overtones, the question remains: if this was such a great idea, why didn't Bush just do it LEGALLY (as in making sure no one would ever question whether he broke any laws by doing it if it ever came to light that he did it)???

The answer, IMHO, is that Bush doesn't want to be bothered with the rule of law when it comes to "fighting the war on terror" (whatever that means today). And lawbending scandal after lawbreaking scandal passes unpunished because of bizarre claims of expediency and other justifications-after-the-fact.

If the "war on terror" is to last for many years to come, should our federal government not get its act together, slow down a little and take some time to figure out a coherent strategy to prosecute said war in such a way that every single captured and accused terrorist can be tried in a recognized court of law in such a way that his or her hoped-for conviction will hold up to careful legal scrutiny. All this "Wild West", make things up as we go along stuff makes me furious because it bears the stamp of (at best) lack of careful thinking or (at worst) conspiratorially careful thinking with designs to keep American citizens scared and chained to our TV sets and credit cards.

[Confederate Yankee]

CharleyCarp, Francis,

I am saying - actually, the Justice Department has said, and will likely say so again in their briefing with the FISA court - that FISA itself was a kneejerk response from Congress that violates Articles II and III of the Constitution and the Doctrine of Constitutional Avoidance.

Anderson, I'm impressed that you have such a concrete grasp of the really important issues.

[Will]

Ginger:

The case wasnt in a posture for Luttig to reconsider his original decision. Ugh describes how I interprete the current opinion as well.

I should also give credit to Anderson for the highlighted provision from my quote. He has an excellent blog, but for some reason I am never able to comment on his posts.

[Jeff]

Hilzoy, you ommitted this part of the article after your snarky comment

[quote]The NSA program, and the technology on which it is based, makes it impossible to meet that criterion because the program is designed to intercept selected conversations in real time from among an enormous number relayed at any moment through satellites.

"There is a difference between detecting, so we can prevent, and monitoring. And it's important to note the distinction between the two," Bush said Monday. But he added: "If there is a need based upon evidence, we will take that evidence to a court in order to be able to monitor calls within the United States."[/quote]

This helps put into context the quote before which you criticized.

I'm a bit disappointed in you lately. You've been making some statements like this was illegal as if it was factually obvious, when after reading analysis from various lawyers I can't see how you can say it's obvious in the slightest. You might be right. But I think we need a congressional hearing to determine the necessity and legality of this, and shouldn't be jumping to conclusions at this point.

[Confederate Yankee]

if this was such a great idea, why didn't Bush just do it LEGALLY?

That is just the point. The contention of the Justice Department, the NSA, and the executive branch is that it is FISA that is unconstitutional, becuase Congress overstepped its bounds when it wrote the law.

Apparently, the presiding FISA judge who heard the arguments originally thinks that the Justice Dpeartment arguments have enough merit to justify a full-scale formal briefing.

We'll know soon enough.

[cleek]

It seems highly likely that the Bush executive order would make your personal calls, emails and faxes therefore less likely to come under human review where your rights could be violated.

hey that's great. now about that supposed authority to monitor my calls in the first place...

when will this country not be in a state of war. specifics, please.

[Jake - but not the one]

Does anybody else think it odd that the NSA is gathering all this info, yet the FBI couldn't be bothered to read memo's written by human beings prior to 9/11+ Does anyone believe that our surveillance agencies have improved in their ability to accept the data stream? Somehow, I doubt it. For the most part, all this info is another kind of smoke and morrors. It's DOING something as cover for whateve terrorist acts actually happen, and without any corroborating evidence, an argument for how effective the administration is wrt to thwarting attacks.

I could be surprised, but gathering data is easy. Making sense out of it, now that's hard work.

Jake

[Confederate Yankee]

hey that's great. now about that supposed authority to monitor my calls in the first place...

Are you making calls to, or taking calls from suspected terrorists overseas? If you are, then the executive authority to monitor such communications comes from Article II of the United States Constitution.

If you are not making calls to, or taking calls from suspected terrorists overseas, then you are just as boring and uninteresting as the rest of us, and the NSA could care less about you.

No that you aren't a perfectly nice individual, and all...

[Will]

"That is just the point. The contention of the Justice Department, the NSA, and the executive branch is that it is FISA that is unconstitutional, becuase Congress overstepped its bounds when it wrote the law."

I suspect that you can divide the Justice Department in two. The political appointees might publically say that the FISA is unconstitutional, but I doubt that is the position of the career Justice Department attorneys.

Confederate Yankee: Do you believe that the President has unlimited, unreviewable power under the Constitution to protect national security? Why cant he simply detain anyone who has been to the middle east since that would certainly result in the detention of some bad guys?

Where does this end, except "trust my good intentions"?

[Slartibartfast]

I could be surprised, but gathering data is easy. Making sense out of it, now that's hard work.

Likewise, recording communications is easy. Not-so-likewise, finding the recordings that might be of interest, that's a bit of a challenge. As Gary Farber has suggested somewhere hereabouts, it's the mining of the data that's the problem (apologies to GF if I've mischaracterized; if so, attribute the foregoing to me). So I'd suggest as a follow-on to that thought, imagine how one might examine the conversations of interest after having discovered a list of telephone numbers in an interesting place. You now have a search criterion. Really, you may only have the one.

[cleek]

Are you making calls to, or taking calls from suspected terrorists overseas? If you are, then the executive authority to monitor such communications comes from Article II of the United States Constitution.

you just told us all it didn't matter that the NSA was monitoring everybody's overseas calls.

now, back to my question: if this wholesale monitoring is necessary because of a "state of war", when will that war be over ? when can i go back to expecting that the president and the security organizations will no longer claim wartime powers, and i can go back to believing in the 4th amendment. again, specifics would be appreciated.

[Will]

As a not-so-aside, what happened to the President's desire to strictly construe the Constitution?

[machinemess]

Confederate, can you consider the deeper implications of a president who breaks a law - any law? (but especially one of such significance to national security)

If Bush thought FISA was unconstitutional, why didn't he get a bill into congress to dissolve it for that very reason many years ago (he's been in office for quite a while now)?

Nope, didn't do that. Just broke the law, maybe. Now what do we do in this country to people who break the law, maybe. We arrest them and give them a fair trial.

Sometimes people do break laws they think are unconstitutional as a form of activism with the hope of getting said laws overturned. I hardly think Bush was taking this course of deliberate activist action in this case - unless he confirms such a scenario either personally in a speech, press conference, or interview; or through his press secretary.

The question remains: why does Bush seem to have such a careless disregard for abiding by existing laws, especially concerning "fighting the war on terror"?

[Ugh]

Man, even Tucker Carlson's going all wobbly on this one.

Reading through the grievances against King George in the Declaration of Independence today, it seems to me that a decent case can be made that 10 of the 27 can be leveled at GWB.

[Slartibartfast]

you just told us all it didn't matter that the NSA was monitoring everybody's overseas calls.

Probably recording would have been a better choice of words.

[Anarch]

Are you making calls to, or taking calls from suspected terrorists overseas? If you are, then the executive authority to monitor such communications comes from Article II of the United States Constitution.

Let's talk turkey here: which specific language in Article II, under what auspices (or interpretations, if you prefer to tackle it that way), supported by which precedents?

Furthermore, if it were unconstitutional, a) why did previous Presidents not attempt to overturn it -- in particular, why should this obviously new method of Constitutional interpretation be given credence -- and b) why did Bush not sue (or seek means of redress other than flagrant, yet secret, violation of FISA) to have it overturned?

Added in proof: Also, what Will said.

[matttbastard]

From the Tucker Carlson op-ed Ugh linked to:

Do we really want to empower the president to ignore Congress, our most democratic institution? Bush's defenders aren't bothered by the idea because they trust Bush. But Bush won't be in office forever.

Will they feel the same way when Hillary is president?

[Confederate Yankee]

Do you believe that the President has unlimited, unreviewable power under the Constitution to protect national security? Why cant he simply detain anyone who has been to the middle east since that would certainly result in the detention of some bad guys?

No, I do not. I beleive his has the powers goven to him in Article II of the Constitution. You could try reading it, you know. teh answer to your second questions is clearly spelled out in constitutional law as well.

you just told us all it didn't matter that the NSA was monitoring everybody's overseas calls.

No I did not, but now I understand at least part of why you don't know what is going on.

Under Echelon, the NSA scans a wide of overseas calls for certain triggers (which remain classifed, but the calls themselves are not individually monitored. therefore, you comment that there is "monitoring" is false. You don't apprently understand the terminology nor the technology nor the constitutionality of this dicssion, which is part of the reason you can't seem to form a rational argument.

when can i go back to expecting that the president and the security organizations will no longer claim wartime powers, and i can go back to believing in the 4th amendment. again, specifics would be appreciated.

Teh fourth amendment is kinda like a bus, cleek: whether you believe in it or not, it is there.

The fact is that it exists, and that the executive responsibility teh constitution mandates to the executive position to conduct foriegn surveillance exists independently of the fourth amendment.

The fourth amendment specifically does not apply to these intercepts, as they are acquired offshore as inbound and outbound traffic, which falls under the president's Article II authority of foreign surveillance and the fourth's border search exemption.

Wartime powers, to the best of my knowledge, expire as soon as Congress says it does.

[Slartibartfast]

CY, please read the posting rules and make sure you comply.

I'm not sure that you broke them, but you came pretty close. Guideline: keep it from being personal.

[will]

Confederate Yankee:

The problem is that I have read Article II many times, but I cannot seem to find anything close to what the President seems to be arguing. Perhaps you could be so kind as to quote the provisions in Article II that give him such expansive powers.

[Francis]

For those not inclined to read CY's cite, it unsurprisingly does NOT stand for the principle that the admin. believes that FISA is unconstitutional. [another conservative mis-reading source material? shocker.]

the admin. argues that FISA is not required by the Constitution.

well, ok. not a very profound argument. But since Congress wrote and the President(s) signed FISA (and its amendments), FISA is the law of the land.

question for the other lawyers: since the President has the obligation to faithfully uphold the laws of the land, may the DOJ legimitately argue that a law is unconstitutional? Can anyone think of a case in which the DOJ publicly argued to a Article III court that a federal law was unconstitutional?

[crcb]

THe 4th Amendment, states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The only question is whether or not these actions are unreasonable.

It is my opinion that the those who already oppose this administration will deem these searches as unreasonable, while the majority of the American people will not.

This is a dead issue for the left.

[will]

crcb:

So you want to simply ignore the entire section about probable cause?

[Ugh]

crcb -

I think that the Supreme Court has collapsed the reasonableness and warrant requirements such that any search without a warrant is unreasonable, except in exigent circumstances and searches incident to arrest.

Generally the question is, was there a warrant? If not, the search is unreasonable unless there is an exception to the warrant requirement. The Bush administration's actions, were they applied to the domestic arena as opposed to international communications (though I note the NYTimes has reported that solely domestic communications have been swept up in this), would clearly be unconstitutional as, IIRC, they don't fall under any of the exceptions.

[cleek]

Under Echelon, the NSA scans a wide of overseas calls for certain triggers

monitor:
2. To check by means of an electronic receiver for significant content, such as military, political, or illegal activity
3. To keep track of systematically with a view to collecting information

both of those are also reasonable definitions of "scan", as you've used it above. but, if you are using special definitions of words, i think it's up to you to tell people about it, otherwise, they'll just go on using the commonly-accepted definitions.

Teh fourth amendment is kinda like a bus, cleek: whether you believe in it or not, it is there.

thankfully, slarti responded before i did...

The fourth amendment specifically does not apply to these intercepts, as they are acquired offshore as inbound and outbound traffic

got a cite that says this issue is about offshore calls only ? from what i've read, it's not.

Wartime powers, to the best of my knowledge, expire as soon as Congress says it does.

well yes. but what will cause that to happen ? and yes, of course it's a trick question. the idea that "terrorism" will sign a cease-fire within any of our lifetimes is ludicrous.

[Slartibartfast]

Actually, cleek, the part I objected to was which is part of the reason you can't seem to form a rational argument. The over-use of personal attacks is annoying me quite a bit these days.

[hilzoy]

I, too, would be interested to learn what part of the Constitution the President's alleged power to set aside laws duly enacted by Congress is supposedly derived from.

Jeff: sorry to disappoint. I do think that it is obviously in violation of FISA (and, having read a lot of the opposing views, I find them at best unconvincing and at worst (Robbins, et al) disingenuous. FISA being the law of the land and all, I think it's illegal. I do not think, for reasons I've explained in earlier posts, that the AUMF trumps FISA here, nor that the President has the power, under the Constitution, to set aside statutes at will. So I think it's illegal.

I also think it's profoundly dangerous to our political system to maintain that the President has the power to ignore the law. He could have asked for the authority to do whatever it is he has been doing in the PATRIOT act. He could have sought to amend the law at a later time. He could have used the retroactive warrant provisions in FISA. Instead, he chose to ignore it. I think this is wrong, and I would think the same if a Democrat did it.

[Ugh]

I take back my comment about the reasonableness and warrant requirement being collapsed, it does not appear to be so.

[matttbastard]

The over-use of personal attacks is annoying me quite a bit these days.

Kiss my grits!

(note: I'm tempted to lobby the Kitty to exempt from the posting rules any putdown derived from a '70s-era sitcom - 'sit on it', 'stifle', 'up your nose with a rubber hose', etc.)

[machinemess]

"those who already oppose this administration will deem these searches as unreasonable, while the majority of the American people will not."

crcb, you imply, against the evidence of several months of public opinion polling, that the majority of US citizens approve of the Bush administration. What force does an argument have when it does not rely on evidence?

[crcb]

Will,

So you want to simply ignore the entire section about probable cause?

I'm fairly confident most Americans will accept 9/11 as probably cause. I don't think that point matters to most.

Ughh,

Maybe. Maybe not.

More recently, the U.S. Foreign Intelligence Surveillance Court -- the secretive judicial system that handles classified intelligence cases -- wrote in a declassified opinion that the court has long held "that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information."

Everyone is going to interpret according to their previous opinions. Immediately both sides jumped as soon as this came out. Everyone had already staked their claim as to what was legal.

Again, this is going to play out to be a losing issue for the Democrats and the Left.

Post 9/11 you just aren't going to get the majority of Americans fired up over an issue like this. It might ignite the extremes, but that's it.

Bush won't stop and he would be irresponsible to do so. He knows that and the rest of us are going to accept it whether we support him or not.

[Jake - but not the one]

Then again, Bush says this is all done under the Afghanistan authorization. Spying on Americans seems to be the only active front in Afghanistan. Weird that. If congress ends the Afghanistan authorization, does anyone think for a moment that Bush will stop?

I don't.

Jake

[Morat]

Hilzoy: Ignoring partisan sources, my understanding here is that the President's actions were a clear violation of valid law (FISA) and perhaps a violation of the 4th Amendment.

FISA was written, in fact, to clarify a grey area. The Bill of Rights establishes a "bare minimum" level of rights -- Congress may not restrict those rights further, but they can -- like with FISA -- expand those rights.

I believe FISA was written because Supreme Court cases left it open as to whether such searches would be constitutional, and Congress felt that even IF they were Constitutional, they should bloody well not be legal.

From what I can tell, Bush openly admitted to ordering violations of the law. He might have ordered violations of the Constitution.

How far we've fallen that he hasn't resigned already.

[crcb]

machinemess,

My faith in polling is suspect to say the least. The 2004 election is a good example. Didn't Kerry win according to polling?

Bush got beaten to death over Iraq and still in the end had a pretty good victory.

This issue is a political dead end. For the Democrats and the Left.

[Jake - but not the one]

9/11 as probable cause for a SPECIFIC wire tap? Did I miss something? Did the world suddenly tip right into a paranoid nightmare?

Doesn't it depend upon the facts of the specific tap? Because if it doesn't, then we have already sold ourselves up the river.

Jake

[Slartibartfast]

Do conversations legally obtained constitute an illegal search for the party on the other end? If you've got a wiretap warrant, for example, do you have to ignore the guy on the other end of the line?

[DaveM]

crcb--

I disagree with your take on public opinion; here's why. The ability to boil your argument down to just a few words is vital. If those few words resonate with the public, you'll probably win the day.

In many cases, the administration has chosen issues where the better "sound bite" argument is theirs. The Democrats are left arguing, "but when you look at all the complex details, we're right."

In this case, I think the tables are turned. The Dems (and some conscientious R's) can state the issue simply -- "warrantless searches," or "eavesdropping on American citizens," or "domestic spying," etc. The concept that warrantless searches are a bad thing resonates, in my opinion.

To counter this simple, resonating message, the Administration is left defending itself by pointing to details, variously: "it's OK if done from offshore," "there is a complex new technology and the warrant process doesn't work well," etc.

Another way of putting it is that this time Dems have the talking point that speaks more to "America."

By the way, my comment is just on the message part of the issue; on substance I'm with those who think the President's actions are illegal and immoral.

[Pooh]

Slart,

That's an interesting question, I would tend to think "no" if the communication itself discusses criminal behavior (no reasonable expectation of privacy which society is prepared to accept), but both Con Law and Crim Law were a long time ago for me.

ccrb,

9/11 as probable cause is, from a legal standpoint, ludicrous. On the order of 'the Mafia kills people. Therefore, we have probable cause to tap anyone with an Italian surname'. 9/11 certainly informs what would constitute probable cause - I think less evidence is probably neccesary in terrorism cases now than 5 years ago. But you need more, you know, evidence.

[matttbastard]

crbc/creek/credence/zzz: This issue is a political dead end. For the Democrats and the Left

How about conservative Republicans?

In an email to IPS, Bob Barr, a former conservative Republican congressman from Georgia, quoted Gen. Michael Hayden, then the head of the NSA and now the deputy director of national intelligence, telling a congressional hearing regarding wiretap targets in 2000, "If that American person is in the United States of America, I must have a court order before I initiate any collection against him or her."

Barr added, "If the president doesn't like the law, the solution should be to amend, not violate it."

crbc/creek/credence/zzz: You have repeatedly framed any dissatisfaction for the current direction the Bush administration has taken the country as being simply partisan sniping (if not outright treason) on the part of 'Democrats' and 'The Left'.

However, a number of prominent conservatives have expressed dismay at the erosion of civil liberties post-9/11, including William Saffire, Dick Armey, Phyllis Schlafley, Pat Buchannon, and the aforementioned Bob Barr.

With regards to the US-led invasion and subsequent occupation of Iraq, I recall a certain Chicago-Sun Times columnist who made his opposition to the war quite apparent.

Yes, I'm talking about Robert Novacks.

All this leads me to ask: Why do you continue to insist on viewing this solely along partisan lines? I suspect you are being deliberately disingenuous, but I feel it's only fair to allow you the chance to qualify and/or provide evidence to support your sweeping generalizations.

In other words: Put up or shut up.

[crcb]

Jake,

9/11 as probable cause for a SPECIFIC wire tap? Did I miss something? Did the world suddenly tip right into a paranoid nightmare?

Do you really think its paranoid to believe there are terrrorists right now that are trying to figure out how they can attack America?

If for one believe that there are. If that makes me paranoid in your book then so be it. It is my judgment that someone who does not is naive to the extreme.

Its part of our sacrifice for the WOT. I can understand that it is not a sacrifice you might want to make, but that's why its called a sacrifice. It hurts a little. And in this instance if you don't happen to believe that Bush is the most evil president ever, then it hurts very very very little.

[cleek]

Actually, cleek, the part I objected to was 'which is part of the reason you can't seem to form a rational argument.'

sigh... i know. i was responding to your mention of the posting rules.

[Slartibartfast]

I have to tell you, crcb, as the one of the Rightmost (as well as Hindmost, maybe) of the crew here at OW: I don't buy 9/11 as probable cause for anything at all. You can't do anything you please because of 9/11.

[Slartibartfast]

Just noting which personal attack on YOU I was objecting to, cleek. Probably not worthy of further exchange, though.

[will]

9/11 as probable cause? Wow. We must be reading different Constitutions.

However, since that is not the first time I have heard such a comment, let's discuss it.

What has 9/11 changed about our laws and Constitution? Should we now simply allow our government to do anything it wants to do in the name of security? Has there ever been a time when we were not concerned about people causing harm to our country? Was nuclear annihilation fundamentally less of a threat than 9/11?

Personally, I think we need to have a discussion of how we can best spend our money on security. The 9/11 Commission's recommendations seem like a bargain compared to Bush's approach.

[Jake - but not the one]

Parania, according to Merriam Webster -

Main Entry: para·noia
Pronunciation: "par-&-'noi-&
Function: noun
Etymology: New Latin, from Greek, madness, from paranous demented, from para- + nous mind
1 : a psychosis characterized by systematized delusions of persecution or grandeur usually without hallucinations
2 : a tendency on the part of an individual or group toward excessive or irrational suspiciousness and distrustfulness of others

The first fits Bush like a glove. The second part, at least the bit about "irrational", fits those who believe that terrorists are the most pressing issue facing America today. Frankly, the way things are going, I think Bush's delusions of grandeur are the most pressing issue facing America today.

Jake

[Pooh]

But slart, 9/11 changed everything

[Ugh]

Its part of our sacrifice for the WOT. I can understand that it is not a sacrifice you might want to make, but that's why its called a sacrifice. It hurts a little. And in this instance if you don't happen to believe that Bush is the most evil president ever, then it hurts very very very little.

Well geez, why can't he just be up front about it then? And while were at it, we might as well dispense with the warrant requirement for purely domestic communications too, after all, if one terrorist is speaking to another terrorist and they're both in the US, that seems much more problematic than if one of them is overseas.

[cleek]

if one terrorist is speaking to another terrorist and they're both in the US, that seems much more problematic than if one of them is overseas.

give me one reason to think they're not already doing that.

[Confederate Yankee]

I think when I left folks were asking about Article II powers. The United States Department of Justice answers you in a just released PDF document here.

The cite Article II itself and supporting case law, as well as the AUMF, the War Powers Resolution, in RE Sealed Case, United States v. United States District Court, Katz v. United States, and other evidence I don't have time to cite.

I don't have time to read it, but it looks like DOJ is arguing that the executive branch has both Constitutional and statutory authority, and instead of running afoul of FISA, it legally satisfies statuatory exemption provisions. They also claim they satisfy Fourth Amendment statutes, which I think proves wrong my understanding that the 4th doesn't apply. Or maybe it doesn't.

In any event, Justice has made it's play, and it appears to be a strong one. It will be interesting to see how things develop.

[Francis]

The administration's public written response is here

my preliminary thoughts: the govt's defense is pretty thin.

the cases which found that the executive had the power to order warrantless foreign intelligence surveillance inside the US all pre-date FISA.

the argument that the president's authority is at a maximum is simply wrong. FISA explicitly contemplates a declaration of war and gives the President additional powers for a 15-day period. The AUMF cannot override FISA any more than the AUMF can override the UCMJ.

there is no discussion of the Congress's Article I power to make rules "for the Government and Regulation of the land and naval Forces."

I cannot take seriously any discussion of the President's C-in-C power which does not address the Congress's rule-making power.

Nor can I take seriously any AUMF override argument which does not address the fact that FISA explicitly contemplates FISA's ongoing applicability during wartime.

[Pooh]

Confed, In re Sealed case is both an outlier and the relevant portion is dicta. See here.

Cleek, that's discomforting. But hey, I know that I'm not a terrorist so they couldn't be listening to me, right?

Right, they would never do that. And even if they did, that's part of my sacrifice. Because the Truth is out there.

Francis,

excellent points.

[CharleyCarp]

'Bush Is Not Above The Law'

I agree with crcb that this is a losing issue among a great many people. Not a majority, even in the reddest of states, but a fairly substantial number of people nonetheless. 'He may be a crook, but he's a member of our tribe' is an appeal that is always going to have some adherents.

I also agree with crcb that this is a losing issue for 'the Left.' Every issue is a losing issue for 'the Left.' 'The Left' has never won national office in the United states, and is never going to win national office in the United States.

[crcb]

Slart,

I don't buy 9/11 as probable cause for anything at all. You can't do anything you please because of 9/11.

I don't disagree. My only point is that I don't think "this" is that big of a deal. I can undertand that others do. When "I" feel that AQ and others are plotting so actively then maybe something like this will bother me.

Not today and most likely not for a few years.

I want my President to do he thinks it takes to wrap up these cells as quickly as possible. I don't think he is doing anything different than what I would do in his place. Hit them quick. Hit them hard. Hit them often. Do what it takes now to prevent another 9/11.

[crcb]

"When "I" feel that AQ and others are plotting so actively then maybe something like this will bother me."

Should have said AREN't plotting so actively.

[cleek]

give me one reason to think they're not already doing that.

just want to point out that i'm referring to the possibility of the govt monitoring calls in the US. (i think Pooh knew that)

[radish]

will, Ugh, et al, say what you will about the rest of crcb's argument, s/he was right the first time when s/he suggested that the notion of "probable cause" is a red herring. the crux of the admin's position is to tear open the question of whether searches of the type they have been doing are "reasonable" absent a warrant. they got caught in flagrante delicto (I gather that Youngstown doesn't leave much wriggle room for arguing that the president is above the law during wartime) so one way or another they will have to present an argument does not recognize the "collapse" to which Ugh refers.

that's independent of whether anybody violated FISA, or how FISA intersects with AUMF or the Constitution; none of that holds up unless the warrantless surveillance in question is indeed rendered "reasonable" by virtue of xxx (where xxx is one or more of several possible defenses for which trial balloons are being floated even as we speak).

most of those defenses are based on transparently wrong readings of the AUMF, the Constitution, or FISA, and will never in a million years survive contact with an actual court. thus, I submit that the WH has no choice but to go for broke and suggest that its warrantless searches were "reasonable" if not quite legal in other respects.

which also means -- mark my words -- that the white house will eventually be reduced to what amounts to a "civil disobedience" defense. within six months, all the hairsplitting about FISA and AUMF will have disappeared and the fundamental talking point will be that the powers granted to the executive by the Constitution are inadequate for the War on Terra.

you can already see the first glimmerings of this and I swear to you that I won't be surprised to hear some GOP hack quoting Letter from Birmingham Jail about the Nazis and the Hungarians before all this is over. no, I'm not joking. I've learned that you can't joke about these people.

[Ugh]

give me one reason to think they're not already doing that.

The only one I can possibly think of is that if it were happening, someone would have leaked it along with the current stuff that only applies to "international" communications (which General Hadley seems to think is goverened by physics, despite the fact that purely domestic communications were caught, according to the NYTimes). That said, maybe only the truest of the true believers are allowed to know this.

And I don't get a part of the DOJ's letter, it refers to the AUMF as "statutory authority under the AUMF," is the AUMF a statute? I think Orin Kerr glossed over this point in his initial volokh.com analysis and just assumed that it was (though I haven't gone back to check, and I don't think any of the Balkinazation posts cover it either). I don't recall the President signing it. Is there a cite to the USC section where it resides?

[CharleyCarp]

AUMF is a statute. The heart of the Hamdi decision is that it's an "other statute" that permits citizens to be detained. Not all statutes are in the US Code, and this one is in the Statutes at Large. 115 Stat. 224.

[Ugh]

The letter also states this, which I'm at a loss over:

Some might suggest that FISA could be read to require that a subsequent statutory authorization must come in the form of an amendment to FISA itself. But under established principles of statutory construction, AUMF and FISA must be construed in harmony to avoid any potential conflict between FISA and the President's Article II authority as Commander in Chief.... Accordingly, any ambiguity as to whether AUMF is a statute that satisfies the requirements of FISA and allows electronic surveillance in the conflict with al Qaeda without complying with FISA procedures must be resolved in favor of an interpretation that is consistent with the President's long-recognized authority.

I agree that Congress doesn't have to amend FISA itself to override FISA, but the statutory construction argument makes no sense. If the President has the authority under the constitution, Congress can't take it away, so construing FISA and the AUMF "in harmony" has no meaning.

Just weird.

[Ugh]

Not all statutes are in the US Code, and this one is in the Statutes at Large. 115 Stat. 224.

Well sh*t. Thanks CharleyCarp, I should have inferred that from Hamdi as you note. Was it signed by the Pres?

[CharleyCarp]

Yes. On Sept 18, 2001. It's Pub. L. 107-40.

[Francis]

Ugh: whenever you read "some might argue", you can be virtually certain that whatever follows is irrelevant or a misconstruction. After all, with 300 million americans, some of them are bound to be raving idiots.

So what if the AUMF is a declaration of war (and i believe that arguing against that position is a waste of time)? Do declarations of war trump the UCMJ? duh, no. the UCMJ expressly contemplates its use during wartime, AS DOES FISA!

there is no ambiguity to reconcile. i simply don't understand Cass Sunstein's argument. FISA remains good law.

[Ugh]

Francis -

I totally agree with you, but apparently the administration's argument is that the President's inherent constitutional power, combined with the AUMF (or maybe even if not so combined), trumps not only FISA, but the UCMJ, the War Powers Act, and the Tax Code (which makes me wonder why they spend so much time enacting all these tax cuts, memo to George: Just decree them!!).