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

[dmbeaster]

"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?"

It's worth noting the parallel between the FISA court reaction and Luttig's reaction in Padilla. Both are trying to decide what to do in response to an apparent cynical disregard of law.

The secret wiretapping outside FISA basically tells the FISA judges that the Bush administration uses you when its expedient, and it doesn't use you when its not. In other words, the FISA court exists for reasons of expediency (as opposed to enforcing law), the primary one being political cover on the touchy issue of domestic spying. Bush can pretend that domestic spying is subject to some form of outside scrutiny rather than unfettered discretion by Bush.

What is the point of a law and a court to administer it if it is to be used only when the administration feels it expedient to do so? No judge wants to be someone's chump -- to provide window dressing for the alleged legitimacy of domestic spying.

The other point made in the quote -- that the FISA judges now wonder if they are making rulings based on illegally gathered evidence -- further emphasizes this issue. What is the point of a law and a court that is allegedly serving as a watchdog on the use of power if it authorizes conduct based on evidence obtained by abuse of the same power they are supposedly regulating?

Its a sham, and the FISA judges know it, and are not happy.

[hilzoy]

So: can any of the lawyers present tell me:

(a) what portion of the Constitution the President's supposedly unlimited powers during wartime are supposed to be derived from? I mean, it can't possibly be just the CinC provision, can it?

(b) why the argument about AUMF (leaving the Constitution aside for a moment) isn't settled by a combination of FISA, the fact that FISA was revised after the AUMF, and normal principles of statutory construction (e.g., that one is to read statutes as being consistent when possible; and that a later, more specific expression of Congressional intent trumps an earlier alleged implicit repeal of a statute)?

I'm really curious about how this is even supposed to work. I see how the argument that FISA couldn't trump the President's constitutional powers goes, but not how the argument about AUMF providing authorization goes, nor where the alleged absolute power of the President comes from.

Thanks in advance ;)

[Ugh]

(a) what portion of the Constitution the President's supposedly unlimited powers during wartime are supposed to be derived from? I mean, it can't possibly be just the CinC provision, can it?

It is the CinC provision, combined with case law on the President's powers in that area along with his powers in foreign affairs, negotiating treaties, etc. Unfortunately (though I am still waiting to buy Akhil Amar's book on the constitution) I think this departs from the whole point of the CinC provision, which is civilian control of the military, not "POTUS can do whatever he want in wartime". And Article II is very short compared to Article I.

Of course, I could be wrong about this (as I have been on this very thread).

As to your point in (b), I didn't know Congress amended FISA after the AUMF (or maybe I did and forgot), is there a link?

[hilzoy]

cleek: PATRIOT act.

[hilzoy]

oops, I meant ugh, not cleek.

[cleek]

just FYI, NewsMax says we shouldn't care about Judge Robertson or his little protest because he's "a Committed Clintonista".

[Francis]

hil: read the govt's response to Congress linked in my 3:52 post.

as to your (a), the answer is yup, coupled with the inherent powers of the "Executive". See, eg, the oath to be taken, pursuant to Art. II, Sec. 1: "I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States".

as to your (b), since I agree with you I'm hard-pressed to argue the contrary viewpoint. Try ProteinWisdom or Powerline, if you can stomach it. (To be fair, Powerline has the best pro-administration argument i've read. As usual, though, the Art I limitations on the Art II C-in-C power are not discussed.)

Ugh, the USA PATRIOT Act (which was adopted after the 2001 AUMF) contained amendments to FISA.

[CharleyCarp]

I mean, it can't possibly be just the CinC provision, can it?

Nope, that's it. It's pretty thin stuff compared to the power "[t]o declare War, grant Letters of marque and reprisal, and make Rules concerning Captures on Land and Water," the power "[t]o raise and support Armies," "[t]o provide and maintain a Navy, [t]o make Rules for the Government and regulation of the land and naval Forces, and "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

I think the President's power to run a war isn't all that different from his power to manage the national forests: Congress creates the Forest Service, the national forests, and specifies, generally, what they are supposed to do (multiple use/sustained yield, protection of engangered species, etc). The President hires rangers and others to implement the will of Congress. That is, Phe president is supposed "[t]o take care that the Laws be faithfully executed."

I can't help you on the AUMF argument. Looking at the AUMF today in responding to an inquiry above, I smiled to be reminded that it is based on the War Powers Act. If pressed, I suppose the President (and his friends) would contend that the AUMF is a nullity too.

[hilzoy]

Francis and CharleyCarp: I had this odd idea that there had to be something more than that. I mean, I keep reading all these breathless comments on right-wing blogs about how Article II vests the President with the inherent authority to do everything he has to do to keep this country safe, and I kept reading and rereading Article II (good thing it's so short) and wondering what I was missing.

Was this inherent authority hidden in the 'how we elect a President' part, which try as I might I had a hard time paying close attention to? Was there some stray clause lurking in some other article altogether, saying 'and by the way, the President has these powers'?

If it's just the CinC part, then I feel better about my reading comprehension skills, and about the Constitution, but worse about the state of discourse in the country.

[CharleyCarp]

Hil, you really ought to read http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=343&invol=579>Youngstown. Everyone talks about jackson's concurrence, and rightly so with its 3 categories. The other opinions are worth a read too.

[Cryptic Ned]

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.

Then why is the NSA monitoring people who are not making calls to, or taking calls from suspected terrorists overseas? Seems like a waste of time.

[dmbeaster]

I second CharleyCarp's recommendation re Youngstown.

As a law student, I remember reading the case, and trying to figure out what the heck Truman thought he was doing -- his whole posture legally seemed so far-fetched even if his purpose was expedient. However, in today's environment in which the Bushies have taken a position several times more exaggerated than Truman's failed position, the opinion in Youngstown is very relevant.

[CharleyCarp]

The other opinions are worth a read too.

I'd be interested to know if anyone can name a favorite opinion. (Other than ConYank picking CJ Vinson's dissent).

[DaveL]

I have to come back to the part of Bush's statement Bob cited at the very beginning of the thread:

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

Somehow that hits me as one of the scariest bits of the whole thing, because it's obvious Bush has no clue, and has given no thought, to what "dictatorial" means. He seems to be living in a world in which "dictator" means not just a leader with unchecked powers, but a bad leader with unchecked powers. Since he, George W. Bush, views himself as a good person, the idea that he could be "dictatorial" is not just wrong but incoherent. And centuries of Western political history and thought, Lord Acton, etc., all go out the window, or more accurately were never there in the first place, since he was busy getting drunk and chasing skirts while the boring, wonky sorts were learning about that stuff.

[liberal japonicus]

OT, (but that's all I do on lawyer threads)

Been at Volokh seeing what's up there on FISA, though most goes right over my head, this is (completely off topic) amazing

There's a meta thread on handles HoCB for all three of you non-lawyers

Finally, a lawyer joke.

A cruise ship in the Mallaca straits is taken over by pirates after fierce resistance by the crew. In order to show that they mean business, they take three of the passengers and make them ananchronistically walk the plank. They obviously want to keep people who may be of use to them, so they light on a businessman, a university professor and a lawyer as lacking any sorts of skills they might need. The first to go is the businessman and he is immediately devoured by the hungry sharks in the water below. The second is the university professor who again, meets his fate quite rapidly. The the third is the lawyer, but when he goes in, the sharks don't attack, but swim around the lawyer. The pirate leader looks and says 'ahh, professional courtesy'...

[Windle]

what portion of the Constitution the President's supposedly unlimited powers during wartime are supposed to be derived from?

You don't need a lawyer. It's your question that's bad. The POTUS doesn't have unlimited powers during ever.

For example, even in this instance Bush knew to notify Congressional leaders and make a legal argument. If someone out there is arguing that he has unlimited powers that's just no accurate.

Congress and the Supreme Court have power. Congress could impeach a president at any time and there is nothing that he can do.

Maybe you could rephrase the question to something that is applicable.

[hilzoy]

Favorites: Black for clarity, Frankfurter for eloquence, Jackson for bringing in my favorite amendment in a way that's actually apposite:

"That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. Time out of mind, and even now in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says, "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." Thus, even in war time, his seizure of needed military housing must be authorized by Congress."

Also for the sentence: "No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role."

So, maybe, no favorite.

I was amazed by how completely nn point it was, and how eerily familiar Vinson's arguments in his dissent seemed.

[hilzoy]

windle: thus the 'supposedly' and 'supposed'. People are saying this; I wanted to know what basis they claim to have for their conclusion.

[Ugh]

PATRIOT Act?!!? Who's ever heard of that?

Man, I'm going to have to turn in my lawyer cred.

[Jeremy Osner]

Do what it takes now to prevent another 9/11.

How does this relate to the delay in dealing with Al Qaeda imposed by the invasion and occupation of Iraq?

[Pooh]

Hilzoy,

The basis of the 'inherent power' argument comes from the different wording of Art I Sec. 1 and Art II Sec. 1.

Art I: "All legislative powers herein granted shall be vested in the Congress of the United States." (emphasis mine)

Art II: "The executive Power shall be vested in a President of the United States of America"

It's a non-risible argument that the absence of 'herein granted' in Art. II implies broader powers than those enumerated (because there aren't that many enumerated.) There's an argument to be made that these powers are based on what 'Executive Powers" was understood to mean at the time.

That all being said, the 'plenary power' over foreign affairs and/or war is a risible concept, based on not only Art III (Judicial power over "Cases . . . arising under the Consitution") but the Treaty Power being circumscribed by Senatorial advice and consent (Art II, Sec. II, Cl. 2) and the various Congressional powers over armies and navies (Art I., Sec. 8, cl. 11-16.)

As to your second question, I find the AUMF argument patently ridiculous, mainly for the reasons that you put forth. It was a colorable, perhaps even persuasive, argument in a situation such as Hamdi (my main problem in that case was the durational aspect in an undeclared war), but if applied here, it would be infinitely elastic, and effectively swallow the Constitution whole.

[hilzoy]

Pooh: thanks. That (the difference in wording) does make a certain amount of sense, though as you say not for a claim of unlimited power.

[hilzoy]

Sorry, that was unclear.

It makes sense to think that the difference in wording has some significance. As you say, it does not make sense to think that that difference involves the President's ability to do whatever he wants.

That's what I was trying to say, before earwigs ate my brain.

[cleek]

earwigs ate my brain

have you seen King Kong ?

[Katherine]

Yoo, Addington & pals tend to also just plain ignore the delegated powers of Congress when they don't like them.

[Pooh]

Further hilzoy, it's odd that the party typically calling for limiting the scope of the Constitution to 'enumerated rights' is making such an expansive claim. But that's just snarky on my part.

Earwigs...ick

[CaseyL]

Pardon me if this comes across as terribly reductionist, but there seems to be a paradox, or an oxymoron, or something in arguments that the President has unlimited powers in wartime thanks to Article II of the Constitution.

Because, if Article II is all a President needs to give him(her)self unlimited wartime power, and if a formal declaration of war isn't required for the President to give him(her)self unlimited wartime power, then:

A) Why would any President declare war, ever, when he(she) could get the same result by AUMF, or Executive Order or, for that matter, any old speech?

B) Why bother with the Patriot Act or FISA or any such instrumentality, when all the President needs is Article II?

[dmbeaster]

Further hilzoy, it's odd that the party typically calling for limiting the scope of the Constitution to 'enumerated rights' is making such an expansive claim. But that's just snarky on my part.

Snarky? Not really. The point is the lack of intellectual honesty in the Bush administration thinking. Its all about expediency -- what do I need to say so that at the moment, I can do whatever I want. It does not matter whether or not those remarks are consistent over time -- past remarks fade way or can be explained away by the time of the next news cycle. There are so many examples of this in right wing thinking. Or as some say, IOKIYAR.

[matttbastard]

Tom Daschle, from an op-ed published in today's Washington Post:

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

The shock and rage we all felt in the hours after the attack were still fresh. America was reeling from the first attack on our soil since Pearl Harbor. We suspected thousands had been killed, and many who worked in the World Trade Center and the Pentagon were not yet accounted for. Even so, a strong bipartisan majority could not agree to the administration's request for an unprecedented grant of authority.

The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress -- but at the time, the administration clearly felt they weren't or it wouldn't have tried to insert the additional language.

Link

[Barry]

DaveL:"I have to come back to the part of Bush's statement Bob cited at the very beginning of the thread:

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

Somehow that hits me as one of the scariest bits of the whole thing, because it's obvious Bush has no clue, and has given no thought, to what "dictatorial" means. He seems to be living in a world in which "dictator" means not just a leader with unchecked powers, but a bad leader with unchecked powers. Since he, George W. Bush, views himself as a good person, the idea that he could be "dictatorial" is not just wrong but incoherent. And centuries of Western political history and thought, Lord Acton, etc., all go out the window, or more accurately were never there in the first place, since he was busy getting drunk and chasing skirts while the boring, wonky sorts were learning about that stuff."

DaveL, this could be the classical right-wing evangelical antinomialism, but it could also be simply that Bush rejects the truth. His statement was almost a freudian slip.

[Anarch]

Congress and the Supreme Court have power. Congress could impeach a president at any time and there is nothing that he can do.

In all seriousness: why can't Bush simply declare that the impeachment interferes with his oath to defend the United States and that the inherent powers of the C-i-C trump Congress' power of impeachment during wartime? [And let's not even get into the craptacular question of whether we're actually "at war" pursuant to a "declaration of war" or not.] More specifically, where does the argument that Bush can overturn FISA et al. through his "inherent powers" break when extended to Bush overturning Congress' impeachment?

[Anarch]

He seems to be living in a world in which "dictator" means not just a leader with unchecked powers, but a bad leader with unchecked powers.

This strikes me as an excellent illustration of the false binarism I keep harping on about periodically.