February 10, 2006

One, two, three, war, what the hell’s impeachment for?—the sequel

As a follow-up to their Thursday editorial calling for the abolition of FISA (which I commented on at length, then later updated to counter a charge characterizing my position on the NSA controversy as “separtation of powers is stupid”—the precise opposite of what I’ve been arguing), today’s WSJ once again gets right to the crux of the issue.  From “President Kollar-Kotelly”:

We’d like to thank the Washington Post for publishing a story yesterday that so quickly proved our editorial point of the same day about the folly of putting judges in control of national security decisions. That’s what we call service.

The front-page story reported that on rare occasion the Bush Administration has used information from the NSA’s warrantless foreign-linked wiretaps to seek domestic wiretapping authority from the Foreign Intelligence Surveillance Court. This was said to have upset chief FISA judge Colleen Kollar-Kotelly, and the tenor of the story is that this is one more example of how the warrantless wiretaps are an abuse of power. But the better question is, Who elected Ms. Kollar-Kotelly?

The story’s real news is that Judge Kollar-Kotelly, and her predecessor Judge Royce Lamberth, took it upon themselves to erect a new “wall” concerning how intelligence is to be used to protect America. They decided that pertinent information gleaned from a warrantless wiretap should never be used later to justify a domestic warrant. But why not? If a tip gathered from an email from Pakistan leads to suspicion about an American-based contact, what’s wrong with using that news to get a legal warrant to track that suspect in the U.S.? It might even prevent a domestic attack.

In any event, why is an unelected judge such as Ms. Kollar-Kotelly making these decisions? Under the Constitution, those calls ought to be made by the President, who swears to defend the U.S. and can be held accountable by the voters if he fails. Under the current FISA court process, Judge Kollar-Kotelly answers essentially to no one.

GOP Senator Arlen Specter is saying he wants to write legislation putting even more power in the hands of FISA judges. This isn’t merely unconstitutional. As the Post story shows, in a world of WMD and fast-moving transnational terrorists, it’s dangerous.

[my emphases]

Current foreign-intel gathering procedure by the NSA allows the NSA to “lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agents, and then provide summaries of these messages to the Federal Bureau of Investigation.” Once these summaries are provided to the FBI, domestic law enforcement can then decide to use the information to proceed with the legal process—which includes the application for warrants, due process, fourth amendment protections, etc., on US citizens.

If, as the administration says, the program is being used narrowly and is proceeding from the phones, emails, contacts, etc, of captured or pilfered from al-Qaeda (or other Islamic terrorist- related subjects or sites)—a perfectly legitimate use of the NSA’s foreign intel surveillance power—why would a judge then find trouble in handing out warrants based on the fruit of these intercepts, substantive leads?

The answer, it seems to me, is that even these FISA judges, who, one would hope, are familiar enough with the military aspects of foreign intel gathering to know differently, continue to view the war against foreign agents embedded in US cells and who are using our system of legal protections to insulate themselves from detection and prosecution, as a domestic law enforcement issue.  Under such a paradigm, then, the NSA’s original intercept looks to these judges like an illegal search, which, if it turns out the illegal search is revealed as the source for netting enough evidence to collect a subsequent warrant under probable cause, then they seem to be concluding that all of the evidence is tainted, and all the post-warrant activity is to be thrown out.

But if this is the case, what possible reason could we have for allowing for generalized NSA foreign surveillance in the first place (it is meant to act as an early warning system), or for allowing that surveillance to be provided in summary form to federal law enforcement officials, who can then make criminal cases in the US under established law enforcement procedures.  That is, how is the NSA different from a reliable tip in the obtaining of a warrant in the first place?

Such procedural dilemmas as judges seem to wish to create are yet another reason why the Constitution, presumably, didn’t call on the judiciary to prosecute wars—and was loathe to give the process over to a lumbering bureaucracy.  As Daniel Henninger notes:

[…] let us here consider something that tends to fall outside legal considerations—effective management. On Tuesday, Vice President Cheney said, “You can’t take 535 members of Congress and tell them everything and protect the nation’s secrets.” Mr. Cheney was reflecting the view, which arose at the time of the Founding Fathers, that foreign policy was disorganized under the Articles of Confederation and belonged under a strong executive. A primary reason for calling the Constitutional Convention of 1787 was the mess Congress had made of managing foreign policy.

[My emphasis]

To some modern-day proponents of a “living” Constitution, such thinking is outmoded; the legislative branch and the judiciary need to provide more checks on the “imperial” “plenary” “unitary” power of the President than the Constitution provided for, which is why we have (constitutionally dubious) legislation like FISA to begin with.

But such a view is meant to disrupt the balance of power as set up by our founders—and even those FISA court judges who believe the NSA program illegal based on their consideration of the program through a law enforcement paradigm admit they have no authority to rule on the President’s Article II powers.  From the WaPo story (thank Karl Maher):

Both judges expressed concern to senior officials that the president’s program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions. Yet the judges believed they did not have the authority to rule on the president’s power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process.

[my emphasis]

What this suggests is not, as critics of the administration would have it, that the President is overstepping his bounds as CiC; in fact, it suggests just the opposite—the tacit acknowledgment that the FISA is not able to constrain the constitutional powers of the President under Article II (and, in a related coup of tacit admission, that AUMF does in fact act as a statutory exemption under FISA).

And this turns out to be a good thing, or else we’d have wars being fought by a coalition of Congress and the superlegislature that today’s courts have become, rather than being run by a CiC and his war cabinet, having been properly authorized to run the war.  Congress is free to file articles of impeachment if they believe the President to be acting illegally—or else cut the purse strings to the programs they find dubious.  They’ve done neither. 

Similarly, courts are able to rule on the legality of certain program, but they are loathe to interfere with what has long been assumed is the President’s broad inherent authority under Article II to wage war and protect the homeland—which, in this case, includes making use of warrantless military signals intel at home in specific and narrowly defined circumstances.

(h/t Terry Hastings; track latest news/opinion on the “domestic spying scandal” here)

Posted by Jeff G. @ 4:37pm
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Comments (22)

  1. Similarly, courts are able to rule on the legality of certain programs, but they are loathe to interfere with what has long been assumed is the President’s broad

    SEXIST!!!

  2. I cannot understand this religious faith in judges, that a judge is the only non-venal, incorruptible link in the government chain. If they did nothing else, William O. Douglas and John Sericca proved that wrong.

    I believe that Bush should just tell critics of the monitoring of foreign messages to put up or shut up – cut off the money or impeach, but in the mean time get out of the way.

    This government truly needs a Department of Fuck Off.

  3. In any event, why is an unelected judge such as Ms. Kollar-Kotelly making these decisions? Under the Constitution, those calls ought to be made by the President, who swears to defend the U.S. and can be held accountable by the voters if he fails. Under the current FISA court process, Judge Kollar-Kotelly answers essentially to no one

    Well, dubya doesn’t really answer to voters. And everyone does keep talking about the magical FISA court of review. I wonder if they, you know, can review a FISA judge.  Just like congress can defund the NSA, so can it wipe out the FISA court. So ‘answer to no one’ is just more hackery. But its the WSJ op-ed. Its their free articles. You get what you pay for with these guys.

  4. Jeff:

    Current foreign-intel gathering procedure by the NSA allows the NSA to “lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agents, and then provide summaries of these messages to the Federal Bureau of Investigation.”

    Sorry, but this is untrue.  The link you use to back up this statement is screwy (you meant this, I think), but I believe you are referring to the 1982 opinion of the 6th Circuit in Jabara.  This case does not support your position, because Jabara did not even challenge the legitimacy of the NSA’s intercepts of his one-end-foreign communications.  Thus, the Court took for granted that the NSA was in lawful possession of the communications, and held only that the NSA’s turning over of those communications to the FBI did not violate Jabara’s Fourth Amendment rights.

    Of course, Jeff, both you and the dishonest website you linked to failed to point out that the NSA intercepts of Jabara’s communications at issue in that case were made between 1967 (when the FBI’s investigation of Jabara began) and 1972 (when he filed the suit).  That was well before the Church hearings and the subsequent passage of FISA, which thereafter regulated—and required a warrant for—the NSA interceptions at issue.

    Furthermore, it is not clear from the opinion that the NSA was actually “targeting” Jabara, anyway.  It seems it was using some sort of data-filtering technique.  (Although the opinion does state that the FBI specifically asked for his communications, it is not clear that they were intercepted by the NSA in the first instance through “targeting.”) I should point out that this is precisely the opposite of what the current secret NSA program—at least according to the officials who have publicly spoken about it—which is target the international communications of Americans with known links to Al Qaeda.

    I don’t think I’m remiss to say that your misstatement of the law in the above-quoted sentence seriously undermines your argument for the remainder of that paragraph and the following three paragraphs.  That’s a substantial portion of your post.  I think you should retract or attempt to rebut.

    One last thing:

    If, as the administration says, the program is being used narrowly and is proceeding from the phones, emails, contacts, etc, of captured or pilfered from al-Qaeda (or other Islamic terrorist- related subjects or sites)—a perfectly legitimate use of the NSA’s foreign intel surveillance power—why would a judge then find trouble in handing out warrants based on the fruit of these intercepts, substantive leads?

    She wouldn’t—which begs the whole question of why they felt the need to bypass the FISA court anyway.

  5. Hmmm.

    Well, dubya doesn’t really answer to voters.

    Absurdity gone turgid.

  6. Absurdity gone turgid.

    Not in the sense that he faces electoral pressure. He’s not running again.

  7. Well then, actus, maybe we need a new constitutional amendment that requires a second-term president to run for a third term even if he cannot legally serve a third term.

    Ed’s got you nailed.

  8. Well then, actus, maybe we need a new constitutional amendment that requires a second-term president to run for a third term even if he cannot legally serve a third term.

    Why? I mean, he’ll still not want to be seen as an incompetent idiot. Just like judges. And the two term limit has other benefits too. But its not all benefit.

  9. Checks and balances are not instant. Look how long it took California to get rid of Rose Bird, or Jerry’s revenge.”

    Presumably a president in the second term still wants his party to thrive.

  10. MF, it comes to the same point Jeff’s been making all along: the Administration is taking the position, well accepted before now, that the Executive alone, in his role as Commander-in-Chief, is charged with the nation’s defense, which includes intelligence-gathering. He doesn’t have to have that authority even rubber-stamped by the Court, which appears to be what Specter is advocating; it’s inherent in his position. Unless and until the Administration’s theory is tested – by the Supremes, it seems to me, rather than the FISC – it’s no more nor less than a power struggle, no matter how many hearings Congress holds.

    Congressional hearings: not so much information-gathering sessions as opportunities to try to intimidate the witnesses and get some nice soundbytes in. Half star chamber, half grandstand.

  11. Congress is free to file articles of impeachment if they believe the President to be acting illegally—or else cut the purse strings to the programs they find dubious.  They’ve done neither.

    That, of course, is because they don’t really object to what he’s doing. They’re just demogoging, secure in the knowledge that they won’t do any real damage because Bush will continue to do the right thing (much like France feels free to oppose the US whenever it’s electorially convenient–they know the US will do what needs doing anyway).

  12. Kinda like when the GOP called for up or down on immediate withdrawal. The sole discernable policy of the democrats is the turd in the punchbowl.

  13. Presumably a president in the second term still wants his party to thrive.

    And presumably a FISA judge doesn’t want the FISA court to be destroyed.

  14. And presumably a FISA judge doesn’t want the FISA court to be destroyed.

    Well, duh. There goes their power, if that happens. So much for line that judges aren’t self-serving. They want to maintain what power they have and expand it if they can.

  15. Well, duh. There goes their power, if that happens. So much for line that judges aren’t self-serving. They want to maintain what power they have and expand it if they can.

    Right. So are they likely to not abuse their power, because it will be taken away.

  16. Pardon, but I can’t get my head around the thinking here. If Ms. Kollar-Kotelly is not questioning the President’s executive powers to be able to collect foreign intelligence under the context of waging war, but does contest it under the context of obtaining a domestic warrant for the purposes of halting an act of that war, then does she also expect that any such acts be prosecuted via some process other than the court system?

    This doesn’t seem to make sense, especially since it has been shown (John Walker Lindh) that American citizens can constitute part of the foe’s combative force. Is she expecting the Army to show up and take into custody whatever nutbar was planning to go after the Liberty (Library) Tower? I’d like to see that play out on the left.

  17. Ok, let me see if I get this right… when the critics are saying: ‘The President ordered this…’ or ‘The President had this done…’

    What they are really saying: ‘The President told the director of an Agency, to order his Department Heads, Section Chiefs, Line bosses, analysts, and assorted staff to totally forget their ethics training, ignore all the statutes that they have been trained on, forget their Oath to uphold the Constitution, forget their security training, NOT tell the Inspector General what they are doing and to generally forget that if they are caught they will spend a lifetime turning big rocks into small rocks.’

    So thats a minimum of, what?  20-50 people… and when you add in translation staff, clerical support, data support, etc., etc. somewhere around 500 or so, not counting support from other Agencies…

    And not a one of them has spoken up?

    Uh-huh.  I don’t know about you, but I have problems when I am out with two friends ordering a pizza and deciding on toppings.  Trying to tell me that so many are so bad and corrupt… well… might as well try to sell me on the Illuminati plot, instead.  That I might just believe.

    And then many of these same people turn around and want the Government to give out health insurance?  If you want to see warehouses full of vital information on citizens (and I am talking Raiders of the Lost Ark warehouses… as well as data warehouses) that a President could more easily get to and use via a couple of trusted confidantes placed in the Government…

    I, for one, smell yet another French Pig Party!

  18. This doesn’t seem to make sense, especially since it has been shown (John Walker Lindh) that American citizens can constitute part of the foe’s combative force.

    Its also been shown that they end up charged with crimes and put into jail.

    But you ignore that Kollar-Kotelly is just doing her rule as a FISA judge.

  19. ..and now, for a twist, you have law Profs. Erwin Chemerinsky and Jonathan Adler arguing that Judges Kollar-Kotelly and Lamberth exceeded their authority in acting as they did.

    What would have been interesting to know, but the WaPo does not report, is whether the judges expressed their concerns before or after the FIS Court of Review rejected the FISA court’s restrictive approace to intell collection in In re Sealed Case.

  20. The Senate loves to put more power in the hands of judges, and then it loves to hate any judicial nominee that seems not to agree with their personal view of how a judge should wield that power.

    Imagine Teddy Kennedy grilling a judge that could potentially “run” the intelligence machine.

  21. But you ignore that Kollar-Kotelly is just doing her rule as a FISA judge.

    Yes, by defending that Gorelick “wall” against the nation’s interest during a war.

  22. Its also been shown that they end up charged with crimes and put into jail.

    But you ignore that Kollar-Kotelly is just doing her rule as a FISA judge.

    Actually, I hadn’t ignored that. Note earlier in my post:

    for the purposes of halting an act of that war

    I was specifically speaking about proactive measures vice reactive measures. Without information transfer between the ‘war’ jurisdiction and the ‘non-war’ jurisdiction we’re back at the same place we were with the Gorelick Wall. My point being that knowledge gathered under one fully Constitutional circumstance should not be proscribed from use under another fully Constitutional circumstance. After the terrorist act has taken place is a bit too late to try and prevent it. If foreign intelligence points to someone in America acting on the behalf of a foreign combatant, then only transferring that knowledge to the American justice system allows that system to act in the manner you seem to be promoting. Otherwise we can only try said terrorist after they’ve accomplished their objective.

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