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December 22, 2005


But the leaks we have been hearing tend to involve attempting to track the network of terrorists by linking known terrorists to other people by their calls.

Er...we have?

LizardBreath is so going to be all over you, Sebastian.

the administration's argument here does not state that the program was in compliance with FISA. This is consistent with the NY Times story that the administration is deliberately targeting US persons.

It appears that the administration continues to commit a straightforward violation of (f)(1).

So, you have it on authority that the intercepted communications were intended to be received by particular, known United States person[s]? Cite, please.

"This is consistent with the NY Times story that the administration is deliberately targeting US persons."

Remember "in the United States". US person isn't enough. And I'm not sure about 'compliant with the FISA' either.

And I see that this topic has been broached in another thread. Lizardbreath's objections to "Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications."

seem fully covered above. As for some of her other quotes they seem to be covered by "if both the sender and all intended recipients are located within the United States"

the administration's argument here does not state that the program was in compliance with FISA.

putting it mildly...

IANAL, but as i read it, they're saying FISA itself says we don't have to follow FISA even though it does, and we can ignore it anyway because it doesn't do wht we want and AUWF says that's ok.

While you're around, Sebastian, I was wondering how you'd answer this question.

Hey, maybe the President's activities are actually outside the scope of FISA, and thus legitimate. I'll spot you that. Anything's possible.

What's your take on the "the President has plenary power to do whatever the hell he wants during wartime" argument?

How do you square that claim with Article I, section 8 of the US Constitution?

I'm open to the claim that FISA warrants take too long to get, that some other vehicle is needed, etc etc etc.

To grossly understate, I'm not open to the claim that the President's authority during wartime trumps all US law.

Whether you support the specific surveillance program in question or not, if you support the justification for it, you're supporting the end of the US as a constitutional republic.

The White House's legal strategy is clear: this is new technology not covered by existing laws; debating laws covering the technology would expose the technology; we couldn't take that chance with so much at stake, so; in the absence of laws, we make the laws, and we always adhere to the spirit of existing laws in safeguarding the civil liberties of law-abiding Americans.

But Mr. President, how do we know you always safeguard the liberties of law-abiding Americans?

Well, you'll just have to trust me.

But if we define the whole war on terror as something that has to get pushed through the criminal system that is going to be problematic.

Well, let's look at one alternative: US citizens monitored and 'disappeared' if they're suspected of crimes. After all, it'd be a shame to get the criminal justice system involved...

This is probably a naive question but I'll ask it just the same: does it really matter that the technology is different? Doesn't the principle of the law remain the same? Doesn't the law, as stated under "4" in Sebastian's post, give the general principle that a warrant is needed to intercept communications and doesn't that principle apply to newly invented means of communication?
And if there was any doubt about this in the minds of the administration shouldn't they have gone to the judges for clarification?

Russell has it: the scary thing here isn't so much the wiretapping, as the argument that this is legal regardless of FISA because either:

1) any statute that the President deems to interfere with national security during wartime is unconstitutional, and therefore it is legal for him to disobey that statute, tell his subordinates to disobey it, and classify the evidence that he is disobeying it


2) the AUMF, and presumably any similar use of force resolution, overrides all other laws that the President deems to interfere with national security during wartime. Therefore it is legal for him to disobey those laws, tell his subordinates to disobey them, and classify the evidence that he is disobeying them.

The first of these arguments was in the torture memo, and given repeated opportunities they never backed off it. The Democrats on the Senate Judiciary committee grilled Gonzales on this. He dodged, and dodged, and dodged. He would not back off. He merely said that the argument that the commander-in-chief power makes the torture statute unconstitutional was "unnecessary". But he wouldn't say it wasn't there position.

There are rumors that more than Yoo, it was David Addington who wrote that section of the torture memo. Yoo is off warping the minds of Berkeley undergrads now. But Addington has been promoted--he's Cheney's chief of staff. And we all now how powerful Cheney is.

And now they're making essentially the same argument about why FISA doesn't matter.

I am not screwing around when I say they are claiming unlimited power. It is past time for people on the right to take that seriously. Way, way, way past time.


It doesn't make sense to me either. Being able to get retroactive warrants should cover things nicely, for today's technology, and hypothetical future communication technology.

No, it doesn't really make sense why FISA would be circumvented unless we start bringing in the subject of volume, where the amount of communication under surveillance is such that individual warrants do not make sense. It's the only theory that makes sense to me, but it's speculation of course.

Perhaps someone with relevant technical knowledge about what may be going on is better at discussing the reasons why this is likely a very bad idea rather than lawyers discussing how many wiretaps can dance on the head of a pin.

A Greek religious text from antiquity tells of a king who got word that a potential usurper to his throne had been born somewhere in his kingdom. He wanted to find this baby and kill it, but the unwitting human assets that he was using to lead him to the child's location got wind of his intentions and managed to slip away. So all the king knew was the sex of the child (male), the city where the child was born, and a rough estimate of the child's birth date. Targeted human intelligence having failed him, he decided to try the brute force approach. He had all the male children in that city that were two years of age or under killed.

After the slaughter of all of those infants, the king sat back in relief. The child could never have escaped that massacre! His kindgom was safe. But unbeknownst to the king, his plan hadn't worked. In spite of the fact that the king had narrowed his search using perfectly sound criteria, the boy and his parents still managed to escape to Egypt, and all of those other children died for nothing. And to top it all off, the boy Jesus wasn't even a real threat to Herod's throne. It was a false alarm! Herod, in his paranoia, had misinterpreted the original intelligence data as pointing to a threat, but in reality it signified no such thing... which brings me to my final point: it's not just enough to have sound intelligence; you also need political leaders who have the wisdom to use that intelligence appropriately.

Via Crooked Timber...

Hal, thanks for the link.

Maybe this is not the right forum, and of course we don't really know the exact details of the NSA's capabilities, but a practical problem really stands out in my mind.

Suppose we can record all telephone calls and scan them with voice recognition technology. Suppose we can devise clever pattern recognition to select calls to monitor. Aren't most of the important calls likely to be in Arabic rather than English?

We already have too few Arabic speakers to cope with known relevant information -- the army in Iraq is short of Arabic speakers, there's a backlog of documents to translate, etc. How will we get enough of them to listen in to large numbers of mostly irrelevant telephone calls?

The "technological quick fix" always appeals to managers who don't really understand a problem. It almost always fails.

I doubt that the system the NSA is using is so beneficial as to justify the costs to our civil liberties. In fact, I wonder whether it even is really justified in terms of lost opportunities to apply the resources to a more productive security program.

Obviously we'll have to wait until more facts are in before anyone can tell that something is wrong, but the facile arguments against the contention that there was lawbreaking -- the calls are purely international, the monitoring is done offshore, for example -- are belied by two points. First, the story is derived from leaks by people who know what is going on, know what the law is, and are leaking because they think what's happening is illegal. Second, the FISA court knows what the law is, and is seeing enough in the descriptions of what's being leaked to think there's a real issue.

In these circumstances, the chances that any blogger, or official from a former administration, can find a ststutory fix to the legal problem seems fairly remote.

It seems to me that where the government is going here is nothing less than calling for the reversal of Youngstown. Good luck with that.

First, the story is derived from leaks by people who know what is going on, know what the law is, and are leaking because they think what's happening is illegal. Second, the FISA court knows what the law is, and is seeing enough in the descriptions of what's being leaked to think there's a real issue.

To this I would add a third, the administration is arguing that its surveillance is legal under FISA not because it complies with its requirements, or becuase its conducting surveillance not covered by FISA, it's arguing that (a) the AUMF is the "unless otherwise authorized by statute" statute and allows the surveillance; and/or (b) the President can do this no matter what FISA says.

If they thought the surveillance met the technical requirements of FISA, they would be arguing that too, but they're not.

"But Mr. President, how do we know you always safeguard the liberties of law-abiding Americans?"

Because if he doesn't, someone will know about it, as they properly did in this case. Or they will leak it, as they improperly did in this case. And then we will know about it.

"Well, you'll just have to trust me."

Or, as in 2004, re-elect me; or in 2008 re-elect my party - or someone else you think you might trust. As opposed to, say, Gore, or Kerry.

If they thought the surveillance met the technical requirements of FISA, they would be arguing that too, but they're not.

This might not follow if, for example, the surveillance violated some law other than FISA. Suppose the monitoring is being done from Ireland, and suppose (a) Irish law forbids it and (b) Sec. Rice has specifically told the Irish government that we're not monitoring from Ireland.

I make no claim that (a) or (b) are true -- I simply made them up. Neither is in 'moon is made of green cheese' territory, though.

You can see, of course, why the Attorney General would avoid making the claim.

If this is the case, one would hope they're quickly moving the whole operation to Morocco, which seems willing to cooperate with even the most questionable of practices. (Indeed, I think it would be a good idea if those folks who seem quite comfortable with tyranny went ahead and moved to Morocco too. They'd get the authority figure they seem to need, and not be bothered by pesky opposition figures).

Blogbudsman, are you saying it's okay for the president to ignore (or make up) whatever laws he likes as long as any people who know about it are sufficiently intimidated by the threat of prosecution for leaking that the public doesn't find out? And that even if the public finds out, we just have to let the president continue to be a dictator until the next election? It seems to me that a president with such unchecked authority could do quite a bit to affect the outcome of the next election.

CharleyCarp -

Don't necessarily disagree, though it seems that they could argue around that without implicating Ireland. My other thought was that they couldn't get into technical details because it would compromise "sources and methods," (e.g., they actually are not conducting surveillance covered by FISA, but to explain how/why would ruin the program; I don't buy this though).

LizardBreath is so going to be all over you, Sebastian.

Well, 'all over' is an overstatement, but I would like to make the same point that I made when Slart brought up similar issues: Just because you can conceive of interesting sorts of electronic surveillance that might not violate FISA does not mean that the program we're talking about didn't violate FISA. The administration has not taken the position that its actions were not in violation of FISA -- it has been fairly clear that it considers itself entitled to override and ignore the restrictions of FISA (and, arguably, the Fourth Amendment), and that it has done so and intends to continue doing so.

Technical discussions of what exactly this surveillance entails are fascinating, although largely speculative. Suggestions that the law should be modified by Congress to harmonize with the technical realities are probably something that should be considered. Neither has any particular application to the fact that the Administration has claimed that the state of emergency, or war, or whatever it is we are in entitles it to disregard the laws of the United States.


"Or, as in 2004, reelect me; .. or in 2008 reelect my Party ..

Well, at least we have some idea now of when terror alerts might start up again. I miss them. They are my favorite part of election years.

I should say that all my points were made by CharleyCarp and Ugh above -- I saw my name being taken in vain and responded before reading the rest of the thread.

Or they will leak it, as they improperly did in this case. And then we will know about it.

and then you will defend it and complain about the leak.

And the grand Yoo-nified theory of Presidential power makes an appearance in the NYTimes today, complete with a pic of Prof. Yoo himself:


Sebastian, the NSA has already admitted to wiretapping domestic calls, albeit they say it was only by mistake.
And given that the FBI and DOD have been monitoring gay-rights groups, vegan conferences and nonviolent animal-rights activists (on the theory that maybe they'll find a lead to some of the violent extremists) I think their concept of a "link" to terrorism is a lot broader than mine.
I'm also reminded that federal prosecutors have admitted they're using Patriot Act powers in non-terrorist investigations because it would be just plain wrong not to use everything in the toolbox to catch murderers and rapists. It wouldn't be much of a stretch to see the same argument made for warrantless eavesdropping.

Don't forget using the Department of Homeland Security to track fleeing Democratic legislators in the Texas reredistricting affair. Has anyone suffered any consequences for that? DHS hadn't been in existence long before it was already being used for political purposes.

The parable upthread sums the situation up perfectly.
And there's this: according to a series of articles in WaPo, as summarized on Mahablog, the Department of Homeland Security is FEMA times ten. No policy, just cronyism and spin. They have logos, their very own font, and no clue how to get aything done. For example, someone thought it would be a good idea to increase security on chemical plants located near urban centers. Good idea, no? Well, some chemical company CEO's bitched to Karl Rove about the expense and incovenience, so the idea was squashed. If we do get another terrorist attack it will be directly Bush's fault for his incompetence. I am so sick of people making excuses for him.

I speculate on technical matters because it's my area of expertise. A more legally-oriented thought occurred to me, though: doesn't much of this justification for the President's actions boil down to the "necessity defense?" That is, it's so important to fight the war on terror that we should execuse any overstepping of legal bounds?

I ask this because I imagine many of those holding this position would usually be found on the other side of that argument.

One other technical matter: even if the NSA's system works, all someone has to do to evade it is to use strong encryption. Probably Louis Freeh would reply that this is why strong encryption should be outlawed.

ral -

If they want to use the necessity defense, that's fine, but they need to be put on trial and have a jury accept it first. They want to be able to use it to avoid the trial altogether, it seems to me.

ral, strong encryption would evade targeted wiretapping, but for the broad-based keyword scanning that some people are speculating about even use of simple code words would work. Surely only the very stupidest plotters would use words like "bomb" or "FBI" or "bin Laden" in their e-mail or phone calls.

William Arkin:

"So what would the NSA need to do that isn't covered by the provisions of FISA?

My guess is the government decided after 9/11 to monitor everyone."

KCinDC, I agree. I think even just the use of Arabic amounts to a limited code. I don't have much faith in this (speculative) technology.

My guess is the government decided after 9/11 to monitor everyone.

Ah, yes. And Bush, in his role as Col. Nathan R. Jessep, has made a command decision and that's the end of it.

Worrying about whether this particular surveillance program fits the letter of the FISA law or not is a parlor game compared to what I think is the more important issue here.

Gonzales, Yoo, Addington, and at their advice Bush and Cheney argue that, during wartime, laws passed by Congress are not binding on the President. That's the argument.

Article II section 2 of the Constitution enumerates exactly the following powers for the President regarding war:

"The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States"

Article I section 8 of the Constitution enumerates the following powers for Congress regarding war:

"To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water..."

"To make rules for the government and regulation of the land and naval forces..."

"To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions..."

"To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States..."

There are others that I've left out because they primarily touch on funding and not on oversight.

The conditions for suspending habeus are also discussed in Article I, indicating that suspension of habeus is within the purview of Congress and not the President.

As I read this, the Constitution explicitly and unambiguously gives Congress the power to make rules concerning captures, and for the governing of land and naval forces. Congress, not the President, has the duty to declare war. Congress, not the President, may call the "militia", by which we normally now mean the national guard, into active national service, and Congress, not the President, has the power to make rules concerning the governing of that militia when so called. Congress, not the President, has the power to suspend habeus, and that only under very specific circumstances.

The President's power during wartime extends to his role as operational leader of the armed forces. Full stop. In practice, Congress has often given the President fairly free rein when acting as Commander in Chief during wartime, but the privilege remains with Congress to do so or not.

I cannot conceive of a way to read these passages that supports the claim that the President is not bound by laws passed by Congress during wartime. If you can, feel free to share.

I object to the President's authorization of surveillance of US citizens and persons. The assertion of plenary, unassailable Presidential power during wartime, however, I find, to put it extremely mildly, disturbing, and a serious threat to our form of government. This is no joke.

We need to take these claims seriously. It's already too late to nip them in the bud, they need to be beaten back, shouted down, and defeated, ASAP.


Russell has it right. In the background, are relevant issues about cutting edge spy technology, keeping the law in pace with technology, balancing liberties and security issues, and Presidential powers to act in an emergency to address a problem. But none of this is really what this dispute is about, and that is the result of the decisions and posture by Bush, et al.

Instead, the issues are about an imperial presidency acting to intentionally violate law, patently bogus arguments to attempt to legitimize raw assertion of illegal power, violations of Americans civil liberties (very likely, though we still don't know much of the nature or extent of the illegal spying), secrecy in effectuating these practices (which knocks out the emergency issue -- nothing like reauthorizing an "emergency" program over four years), refusal to bring the issues to Congress for amending laws or clarifying the rules, and other endless forms of wankery ("Clinton did it," etc.).

More fun here.

A graf:

the federal government since 9/11 has run a far-reaching, top secret program to monitor radiation levels at over a hundred Muslim sites in the Washington, D.C., area, including mosques, homes, businesses, and warehouses, plus similar sites in at least five other cities, U.S. News has learned. In numerous cases, the monitoring required investigators to go on to the property under surveillance, although no search warrants or court orders were ever obtained, according to those with knowledge of the program. Some participants were threatened with loss of their jobs when they questioned the legality of the operation, according to these accounts.

Man, when it rains it pours:

The National Security Agency, in carrying out President Bush's order to intercept the international phone calls and e-mails of Americans suspected of links to Al Qaeda, has probably been using computers to monitor all other Americans' international communications as well, according to specialists familiar with the workings of the NSA.

Nothing like the Friday before Christmas for interesting information to reveal itself.

KC -- Surely only the very stupidest plotters would use words like "bomb" or "FBI" or "bin Laden" in their e-mail or phone calls.

We have plenty of evidence that even before 9/11 AQ was aware of this and working to cover themselves in their electronic communications. According to the testimony in USA v. Usama Bin Laden (S(7) 98 Cr. 1023) in May of 2001, operatives were writing to each other using "food and beverage industry" as a substitute for "FBI" and speaking of "red" and "green" instead of "riyals" and "dollars" and referring to Usama as "Mr. Sam." You can read the trial transcript at cryptome.org.

If the NSA were using something like echelon or super echelon, then we can rest assured that they would be searching on that string as well, and that this thread is now in someones inbox to be analyzed and our IP addresses in someone's database and it could very well be that anytime one mentions both "Sam" and "Food and Beverage Industry" in a phone call that they are going to be flagged for analysis. Meanwhile, AQ has doubtless moved on to using something else like "the Fred and Barney Incident" in order to avoid detection.

My guess is the government decided after 9/11 to monitor everyone.

Even when I'm guessing, I try to at least make it a good guess.

Not to be a nag, but would one of the apologists for the President's actions and/or position please make a reply to the Constitutional issues that I've raised upthread?


Russell, without self-identifying as an "apologist," I would proffer the following as a possible answer:

Look at the Prize Cases, dealing with capture of foreign shipping pursuant to enforcing the blockade of ports of states in rebellion during the Civil War, in the context of Hamdi.

The Prize Cases essentially say that when the United States has been "invaded" or attacked by domestic belligerents (rebels), the President has the power to use military force to repel the threat. They also say it's within the President's discretion to make the factual determination of whether a party is a "belligerent," i.e. a foreign invader or a domestic rebel. The Supreme Court reasons that the Constitution permits the President to act in response swiftly without securing prior authorization to invoke war powers from Congress. (Notably, the Prize Cases also find that Congress authorized President Lincoln's actions ex post facto.)

Add that to Justice O'Connor's discussion of the "incidents of war" in Hamdi and you can plausibly come up with "invasion" (i.e. a warlike attack on US territory) + incidents of war (use of DOD assets to identify targets) + retroactive Congressional authorization in the form of the AUMF = all the authority required by the Constitution for the President to order the NSA to do whatever it's done.

Obviously, this raises all kinds of thorny issues about invasions, limits of the use of military/warfighting assets within the United States against "belligerents" who are "US persons," how do you decide that someone is a belligerent, in light of new technology, are you even talking about targeting identifiable individual "belligerents" or are you rather dragnetting the populace, etc. etc. etc.

But that's probably where the administration's defense would start from.

Travis, I still think you run up against the fact that FISA has a specific provision for how authorization of surveillance is to be handled in wartime. In my view, all Hamdi gets you is the right to act according to the laws that govern war. One of these is section 1811.

Even when I'm guessing, I try to at least make it a good guess.

This isn't clear. Are you implying it isn't a "good" guess?

Just wonderin'


That was meant in humour, btw.

I'm a bit worried that Slarti is feeling left out concerning HoCB, so if you'd like to start up a Slartiwatch there, I'll put in a good word with the management ;^)

Travis -

Thanks for the thoughtful reply, I appreciate it. You make a good argument, however I think you've failed to address what IMO is the crucial issue here.

You've made a good analysis of why the President's actions may, in fact, comply with the law. What I'm hearing from Bush's legal advisors, and from many of his supporters, is that it doesn't matter if the President's actions comply with the law or not. Because he is the President and we're in a war, the President *is not bound* by the law. Congress has no Constitutional power to limit the actions the President can take during wartime.

If I'm misunderstanding the claim, please advise.

As far as I'm concerned, we're on the verge of crossing the Rubicon as a nation, and the metaphor is chosen deliberately. Either the President is bound by law, during wartime or anytime, or he is not.

If we decide he is not, as far as I can tell we have just, fundamentally, changed the nature of our form of government, and have established an enormous exception to one of our most central political principles. We are either a nation of laws, with noone above the law, or we are not.

Personally, this is where I draw a line in the sand. I don't care if you are conservative, liberal, or whether you support the war in Iraq or not. As far as I can tell, to claim that the President is not and cannot be bound by laws passed by Congress when acting as Commander in Chief is to do violence to the Constitution, and to the most fundamental principles of this nation.

Bush seems determined to have his way on this issue. It's all well and good for me to blab about this on an online blog, but in fact there's damned little I can do directly to affect the outcome. I sincerely hope somebody with the authority to do something has the stones to stand up to him. Otherwise, I'm not sure where we end up.

This is a big deal.

Travis, I still think you run up against the fact that FISA has a specific provision for how authorization of surveillance is to be handled in wartime. In my view, all Hamdi gets you is the right to act according to the laws that govern war. One of these is section 1811.

Indeed, and this was also a key point in Youngstown -- that the Congress has a specific statutory scheme for dealing with labor controversies (Taft-Hartley) and had specifically rejected giving the President power of seizure as a remedy.

The "emergency" argument from the Prize cases works only when there are exigent circumstances and a lack of existing Congressional law on the subject. The President cannot act to make law nor act contrary to existing law -- this is Bush's argument, and the Prize cases do not provide any support for it.

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