March 30, 2006

NSA / FISA follow-up follow up

From Powerline, who posts more of the transcript, and AJ Strata, who concludes that

It was not actually the fact that NSA bypassed FISA—it was actually that Bush was opening the NSA leads to FBI investigation which were making their way to the FIS Court—where these leads were being rejected by the head judges as ‘illegal’ leads! The so called ‘tainting’ of FISA some of the FIS Court judges complained about.

As I’ve noted on several occasions now (most recently, yesterday), it is becoming increasingly clear that some of the FISA court dissenters (Judges Kollar-Kotelly and Lamberth) refused to view the NSA warrantless “leads” (as pertains to US persons) as legal, considering the very existence of these leads, which are presented in summary form to the FBI, as a violation of the criminal law process. 

That is, because the NSA is secretive in its methods and obtains its info by casting a broad net before passing it on to the FBI (in summary form), the chain of custody could not be said to be pristine, and the NSA could not be called to testify on its collection methods (though some civil liberties absolutists are angling for just such a thing; to them, there can be no classified information, even if it is being used to protect the country).  Therefore, some dissenting FISA judges, working under the criminal law paradigm, were refusing to issue warrants based on the NSA leads.

This seems to mesh with the arguments made by several prominent law professors, appearing on Hugh Hewitt’s radio show, who expressed concern that Judges Kollar-Kotelly and Lamberth exceeded their authority and were bottling up the system—in effect, forcing the President into asserting Article II powers—something I wrote about back in February.

And if this all is indeed the case, a number of pundits, media outlets, and politicians who had the story completely wrong and accused the President of acting illegally (including those who called for “censure” and floated the “impeachment” trial balloon over this) owe the Bush Administration, the Justice Department, and the NSA a rather public apology.  Not that I expect we’ll see such a thing.

Of course, if I’ve been wrong all this time—which, without a SCOTUS ruling, I don’t see how I can be, honestly, given the extent of the President’s Article II powers during war, and the NSA’s standing as a part of the military—I will admit my mistake(s).

But nothing so far has convinced me this illegally leaked story has been anything more than an opportunity for those who distrust Bush to accuse him of wrongdoing in advance of the facts—and for those who wish to see the Executive better constrained by the Judiciary and the Legislature (the Constitution doesn’t go far enough, or provide the “right” kinds of checks, is the implicit argument) to try to gin up outrage and force a power grab that would give the Legislative branch a say in micromanaging the CinC’s war-time decisions.

If anyone can find the link to the C-SPAN judges’ testimony, or the complete transcript, please pass it along and I’ll post it here.

Posted by Jeff G. @ 5:40pm
102 comments | Trackback

Comments (102)

  1. It looks to me like there are two very separate parts to this issue…

    The first is whether or not Congress’ resolution (and Article II in general) allow the President to authorize spying on citizens suspected of being Bad Guys. That’s a debate for people far more legally-inclined than I, but personally the idea leaves me cold. How can we be in a state or “war”, at least to the Constitutional definition, against a random group of small organizations that may or may not work together on any given day, and don’t actually share any particular philosophy, nationality, location, tactics, uniform, language, or culture? If yuo define “war” down to the point where any anti-US violence anywhere in the world counts, we’ve just gone down a one-way street, IMHO.

    The second part is a little easier to wrap my brain around. The legal arcument seems to be that we can either (a) treat suspected terrorists as foreign agents and spy on them or (b) treat them like criminals and take them to court, but not both. If you want to bust them for espionage, use the NSA. If you want to convict them of more ‘mundane’ crimes, use the FBI.

    The final answer to issue 1 will tell whether or not Bush can/should be censured, impeached, whatever. But the answer to 2 will determine whether damn near any of our ‘terror arrests’ ever result in convictions…

  2. Legion,

    I think you missed the point.  NSA is authorized to spy on our enemies.  If in the process of monitoring their communications they contact someone in the US that is as legal as anyone in the US coming into contact with target under FBI surveillance.

    These roles and acts are not being questioned.  The question is when the NSA finds a person in the US communicating with a terrorist under their surveillance (and let’s make it easy and say it is bin laden and he is making open plans for an attack here) the Judges are saying the FBI cannot open an a surveillance of the US person because the lead came from the NSA.

    Not the quality of the lead, the content or the players.  None of that matters to them.  Which is theoretical stupidity.  The FBI investigates the leads and makes an initial determination the lead cannot be deemed ‘innocent’ – a benign person caught up accidentally.  The example I like to use is the terrorist calls a US hotel for a reservation.  The FBI can determine that that communication is highly unlikely to warrant a warrant.

    But when they cannot clear the person they request a warrant to probe deeper.  Now a warrant can provide the necessary information to clear as well as indict a person.  These judges should simply be erring on the side of American lives and give domestic law enforcement 60 days to make their case for a continued surveillance effort.

    But they are not thinking real world, so they reject on the theory the person cannot be a threat because the lead is from the NSA.  Idiocy.

    All this time the NSA continues to monitor the enemy terrorist.  And everytime that US person is on contact with the terrorist the NSA knows about it and should be able to alert the court that the communications are continuing and becoming more damning.

    But that is common sense.  And people who look to theory to deal with the real world never seem to use a lot of common sense.  They use a lot of assumptions to simplify realities complexities to the point they can connive a one-size-fits-all, and totally useless, theory.

    Ugh.

  3. I think the clincher here, for both sides, is the NSA’s standing as a military agency.  I don’t think the majority of Americans know what the NSA really does, or where they fall in the overall scheme of government (dis)organization.  It’s often times reffered to as “No Such Agency”, and they like it that way!

    For people who think that Bush acted properly, it is easy to use the NSA’s standing as a military intelligence agency to justify themselves.

    For people who think he did not act properly, invoking a shadowy military agency that has the power to act outside the bounds of law enforcement can be just as powerful, especially when the people don’t know what the role of the NSA is.

  4. especially when the people don’t know what the role of the NSA is.

    Believe me, I certainly have faith in the ignorance of the Public.

  5. 1) If foreign surveillance is considered a part of the President’s CinC power, FISA is unconstitutional on the grounds that Congress effectively amended the Constitution without going through the amendment process.

    and

    2) The NSA wiretap information is useful, then, for putting a bullet in someone and dumping them in the St. Lawrence seaway. 

    “Chloe, get Jack on the line.”

  6. Let me put on my pedant hat:

    That is, because the NSA is secretive in its methods and obtains its info by casting a broad net before passing it on to the FBI (in summary form), the chain of custody could not be said to be pristine, and the NSA could not be called to testify on its collection methods (though some civil liberties absolutists are angling for just such a thing; to them, there can be no classified information, even if it is being used to protect the country).

    Small quibble:  Chain-of-custody is a question of authentication, not legality.  Example:  If a cop finds a bag of heroin (on which he can’t, say, mark his initials) and the government wants to introduce it at trial, they have to authenticate it (i.e., show it to be the same substance removed by police) by demonstrating the “chain of custody” between the initial seizure and its presentation in court.  So you’ll see an occasional witness say “I kept it on my person until I checked it into the evidence locker, it was placed in locker 14, and the records show that it was not moved from that locker until I picked it up to bring it to court today.” No one but a lawyer should be expected to know that, but I’ll pass it on. 

    Second quibble:  What motivates this worry about testimony jeopardizing national security?  The FISA court has secret meetings and only the government gets to make an appearance in its hearings.  That is, in fact, the very point of FISA—to allow the government to obtain warrants (and thus preserve the constitutionality of continued investigations) without divulging classified information.  Unless I’m missing something, your comment doesn’t follow.

    Somewhat larger point:  If there’s any rule of law that’s pretty much uncontroversial, it’s the idea that you can’t be convicted on secret evidence.  Does this idea obstruct the government from pursuing its many interests, including preservation of the peace and national security?  Surely.  But just as surely is the decision made by pretty much all of western civilization that the sacrifice is worth it.  There’s simply too much revulsion at the long history of government abuses, going back to Star Chamber and probably further, that we simply won’t accept a prosecuting government that has no greater public justification than “Trust us, we did it right but we can’t tell you how.”

  7. Jack, I’m curious by the inclusion of your “Somewhat larger point” in your post.  Who exactly is being convicted and what are they being convicted of?

  8. Hugh, is that material?  I don’t understand your point.

  9. No, Jack, it is effing fundamental.

    Our Constitutional rights are rights in the face of criminal prosecution. If no criminal prosecution is initiated or contemplated, the concept of “rights” is empty. It’s not that you (or I) don’t have any. It’s that the whole idea simply does not apply to the situation.

    …we simply won’t accept a prosecuting government that has no greater public justification than “Trust us, we did it right but we can’t tell you how.”

    Well, no s*t sherlock. The NSA can’t prosecute anybody. They aren’t a law enforcement agency. They don’t have prosecutors on staff. They are not sheriffs. They are not cops. They’re spies. There is no way in Hell anybody could get prosecuted and convicted under rule of Law in the United States based on NSA testimony, and if it happens everybody concerned should be shot at sunrise—perpetrators for doing it, observers for not shooting the bastards and forcing the rest of us to take care of it.

    What set all this off was a moonbat judge with a grudge and a desire to aggrandize her position. The standing of NSA as regards “reports” to the FBI is exactly the same as the standing of any other person in the effing world. If you, or I, or some vacationing Russian, sees somebody here in the United States who is breaking the law—or appears to be—we can pick up the phone and call the cops. The police then take up the investigation, with the full force of Constitutional rights applying to their efforts.

    I knew the name looked familiar, so I googled “Kotar-Kotelly”. She’s the one who presided over the Microsoft Monopoly trial, and muddled the whole thing to the point of being utterly unsatisfactory to everybody involved. This is a “judge” who needs impeachment. Or possibly a firing squad. Anybody can report people they think are malefactors to the FBI. Would Dear Colleen have been happier if the NSA had sent one of their guys out to find a pay phone and make the same “reports” anonymously?

    Bah. Keep your eye on the damn ball.

    Regards,

    Ric

  10. Your “larger point” appears to be about secret evidence and trials.  Are you worried about Star Chamberesque prosecutions arising out of those cases where the FISA court has been bypassed?  If so do you know of any such happenings or are you speculating?

  11. FISA is a relatively new construct,courtesy Jimmy Carter,suddenly it is set in stone.

    It is also interesting that its defenders have a childlike faith in judges.

  12. I suspect this knot relates to two separate aspects of probable cause.  In the usual case, police seek a warrant, which only issues on probable cause.  If a defendent subsequently successfully attacks the warrant, all the evidence flowing from that now improper search is excluded.  The purpose of this exclusionary rule is to discourage police misconduct–phony informants, false or coerced statements, etc.  We’ve all watched enough Law and Order to have this draconian remedy seem entirely natural and ordinary, but in fact it’s highly unusual.  Most legal systems manage to discourage or punish law officers who overreach without the grave impairment of the state’s ability to prosecute an accused that flows from the “fruit of the poisonous tree” exclusion.

    It would appear that most of what NSA picks up and passes on to the FBI would not constitute probable cause.  One of the complaints about the program was that few of these referrals panned out.  Still, in a few cases (and we never know what’s been avoided) the FBI has found corroborating evidence, sought warrants, and brought charges.  It seems that some, at least, of the FISA judges, want to deny FISA warrants where the evidence for probable cause was found because of an NSA referral.  The origin of the investigation in NSA intel renders everything that follows poisoned fruit.

    If this description of the objections to this program is accurate,cut down that tree!

    And we’re in deep trouble

  13. The truly fascinating part is the idea that we must preserve the integrity of the investigation process so as not to violate due process for folks who aren’t really all that concerned about being prosecuted, because they will be dead, along with all of their victims.

    The thing that the prosecute Bush crowd needs to understand is that while the American people might not understand the ins and outs of FISA law or even constitutional powers, most often they do get the idea that you can’t prosecute someone who has flown an airplane into a skyscraper. Even if all your t’s are crossed and your i’s dotted.

    The other thing is that there are excellent arguments to be made that the law has not been broken.

  14. If no criminal prosecution is initiated or contemplated, the concept of “rights” is empty.

    To what end would the FBI be seeking a warrant, if no criminal prosecution were contemplated?

    It seems like if the goal were simply to catch our enemies, outside the track that leads to criminal prosecution, then the whole process would stay under the umbrella of the NSA.  There would be no need to get an FBI warrant based on the NSA information.

  15. The thing that the prosecute Bush crowd needs to understand…

    It just occured to me that none of them seem overly concerned with how the evidence they want to use for impeachment was obtained.

  16. Bush is quite open about bypassing FISA.  It’s not like this info was obtained by tapping his phone calls under the pretense that he “might” be a terrorist.

  17. Good point, B Moe. As they were result of illegal leaks by faceless government officials, the charges against Bush are ‘fruit of the poisonous tree’ and must be inadmissible. (Actually, Congress knew because Bush briefed them. And these leaks came from those briefings, probably from Sen. Rockefeller’s office, already famous for their reckless partisan hackery during wartime.)

  18. As for the admissibility of evidence gathered under the NSA program, it seems irrelevant. The program is one of espionage undertaken to enhance security, not one of law enforcement for the purpose of putting criminals away.

  19. This seems to mesh with the arguments made by several prominent law professors, appearing on Hugh Hewitt’s radio show, who expressed concern that Judges Kollar-Kotelly and Lamberth exceeded their authority and were bottling up the system—in effect, forcing the President into asserting Article II powers—something I wrote about back in February.

    Even assuming such an argument would justify Bush’s violating FISA, it won’t work as a matter of chronology. Bush’s Order to engage in warrantless surveillance—in violation of FISA—well precedes any of these few wranglings over warrants with the FISA court.

  20. Justice Jackson: “We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence.”

    Bush’s program meets either and both of Justice Jackson’s tests. The foreign terrorist placing the call is an outside enemy. The American collaborator receiving the call is in rebellion.

    Any evidence obtained by such a Constitutional act is by definition constitutional. Let’s say Congress authorized force against Cuba. We get to Havana and discover proof that Oliver Stone did in fact kill JFK on Castro’s orders. Is he immune because there was no warrant?

  21. 1) If foreign surveillance is considered a part of the President’s CinC power, FISA is unconstitutional on the grounds that Congress effectively amended the Constitution without going through the amendment process.

    That is flatly false. Justice Jackson’s Opinion in Youngstown makes that abundantly clear, as does the recent ruling in Hamdi. The president’s inherent powers flowing from his role as CiC where national security is concerned are largely shared with Congress; think of it as a Venn diagram.

    People have this bizarre notion that if we are at war, or using military force, a president can do anything he wants if he invokes national security. That simply is not true. He is still bound by laws of Congress, as well as by constitutional guarantees of due process. The Supremes have made this clear over and over.

  22. Bush’s program meets either and both of Justice Jackson’s tests. The foreign terrorist placing the call is an outside enemy. The American collaborator receiving the call is in rebellion.

    No it doesn’t and nobody in the legal world thinks that—which is why the Administration has tried to make the case that the AUMF supersedes FISA, because it knows that if FISA is in play, they are hosed. John Hinderaker, who hates—HATES—that Opinion, has called it sloppy and silly, because he knows it dooms Bush. I excerpted from that Opinion heavily in the thread below, and the language makes it very clear why Bush would lose, and why Hinderaker therefore hates this Opinion.

  23. 1) Take it up with Hinderaker

    2) Nobody in the legal thinks “that” where that = “a foreign terrorist is an outside enemy”?  Or did you mean something else?

  24. I’m posting some remarks recently written by Russ Feingold. Now, I know he is considered a moonbat, raving leftist anti-Christ around here, but I have never seen him that way. He was a state senator in WI when I lived there, and had an earned reputation for being a maverick operating outisde of mere party interests, in the service of ethics and good govt; he was in the Wm Proxmire tradition of the Democratic Party. He was too liberal for me, but I respected his integrity.

    He just wrote this:

    Their [GOP Congressman who aren’t demanding accountability on the NSA matter]actions are not just short-sighted, they are a departure from one of the Republican Party’s defining goals: limiting government power.

    The President has claimed an inherent authority to wiretap Americans on American soil without a warrant that he thinks allows him to break this law. So why would anyone think the President will comply with any new proposal [to amend FISA and give him more latitude]?

    One of the best ways to limit government power is to ensure that each branch provides a check on the other two, but most Republicans in Congress today aren’t checking the President’s power or defending the judicial branch’s right to do so – they are giving him a blank check to ignore the rule of law.

    By supporting the President now, Republicans are making it tougher for members of their own party to challenge the power of future presidents and departing from their own values in the process.

    What would serve the nation, and support the rule of law, is for a few courageous Republicans to follow the example set during the Watergate scandal by standing up to a President of their own party, asking tough questions, and holding the President accountable for his abuse of power.

    During the Clinton Admin, the right properly decried the abuses of Waco and such, and many lamented the existence of FISA and the “secret court” where Clinton was getting warrants to surveille people. It is, therefore, bizarre to see the right now happily conceding that a president need not even abide by FISA and seek judicial review from even a secret court.

    And the legal argument Bush is making means it does not matter how FISA is amended, or what many different statutes provide—Bush’s radical theories of his Executive authority moot law, many laws, and so amending FISA, as Specter proposes to do, is an exercise in futility.

    What has happened to the right, the right that did not trust Big Brother and demanded limited govt? Do you all think a presidsent you like will always be in power? Imagine these legal theories—which exempt the president from law—in the hands of, say, Hillary.

  25. As far as we know the Branch Davidians at Waco, TX, were US citizens.

    Do you, Mona, know who was surveilled by the NSA?

    Not by name, but do you know with any certainty their standing in terms of citizenship or nationality?  I sure don’t.

  26. Someone catch me up a bit.  Do we have proof that Americans not involved in overseas communications were being wiretapped without warrent?

  27. Someone catch me up a bit.  Do we have proof that Americans not involved in overseas communications were being wiretapped without warrent?

    Gonzalez, in his written remarks submitted to the Judiciary Committe to “clarify” his testimony, strongly suggested the warrantless surveillance may also apply to purely domestic communications. He is clearly worried that any implication he might have made that Bush’s legal theories about not being bound by FISA—that they obtained only to the known NSA program— would leave him at risk for charges of lying to the Committee.

    In any event, the issue here is not simply the warrantless spying on Americans who are engaged in overseas communications. The legal theories Bush is setting forth for that one program would cover all kinds of claimed authority to violate the law. These theories flow from John Yoo and his 2002 memorandum that actually says the president can do whatever he wants, if he invokes national security.

    This stuff is radical, and dangerous. I didn’t think the Adminstration took it that seriously until this NSA scandal erupted, and it became totally clear that it fully embraces the Yoo theories.

    George Bush will not always be president, and even if he is operating purely and like Mother Teresa would if she decided to violate FISA, that isn’t the issue. Terrorism will be with us for decades to come, and there will always be some foe we must fight. In the meantime, we must retain our national character and system of govt. What Bush is arguing for is monarchical powers that no president should have, and that no American should agree to.

  28. I understand the concern Mona, but what also worries me is that it is possible to be overcareful on this.  The communications wall that existed between our intelligence agencies and the FBI is a good example of this.

    So I suppose my main concern is to find a way to maximize our due process rights while ensuring that our intelligence agencies and police agencies can protect our lives from those who still very much want to kill us.  The problem is doing both without setting up loopholes that our enemies will very much exploit.  We know that they know our system, and we know that they are seeking to exploit it’s weaknesses.

    So, there are no easy answers, from either a legal or national security standpoint.

  29. I’m not sure why the NSA court concerns itself with chain of custody issues anyway, in issuing a warrant.  Chain of custody is a concept that applies to the admission of evidence—not an issue at the warrant stage—and it goes only to the weight of the evidence—it doesn’t usually (or really, ever) function to exclude evidence.  It also generally applies only to non-unique items, such as for example a kilo of drugs, as opposed to unique items such as a document, although that doesn’t keep defense lawyers from trying.  For example, a cop seizes a kilo of heroin in a raid.  He must maintain a strict chain of custody because one kilo of white powder looks much like any other, and a defendant might argue that the kilo wasn’t the same one seized in his house, which in fact was a container of talcum powder.  But suppose the cop seizes a passport in the course of a raid.  Normally he would maintain a strict chain of custody on it to prevent it from getting lost, but even if it was out of his constructive possession for a while he could always later testify that it was indeed the passport he seized, because it is a specific item that he can recognize.  In that case, cross examination on chain of custody is fairly pointless, althought sometimes done to try to show the cop’s general untrustworthiness or incompetence.

    Why does the NSA court care about chain of custody issues when deciding to issue warrants?  Unless their procedures and rules are wildly different from that followed by regular district courts, that specific question shouldn’t even arise at that stage.  If the NSA judges have other reasons to deny a warrant—the evidence presented in support is contradictory or insufficient – then fine.  But chain of custody?

  30. Sim-simmer, Ric Locke.  Try the decaf.

    Hugh, you keep asking questions that don’t make sense to me.  No doubt that’s largely due to my own daftness, but I’d appreciate some context.  No, I’m not aware of any such prosecutions. The point is that you can’t have any prosecutions when the government can’t attest that the investigation was kosher.

    So let’s try this again for the benefit of Ric:  You want to think that every person who dares to use law-enforcement rhetoric is ipsi dixit in a pre-9/11 state of mind or objectively on the other side?  Hey, it’s a free country; gobble your talking points all you like.  But be aware it’s asinine.  So the NSA are spies; so what?  Supposing an agent discovers a foreign agent in America—wouldn’t you think it would be nice to be able to do something about it?  Like, you know, arrest and prosecute him? 

    Because it’s precisely that remedy being jeopardized here.  There is nothing controversial about the exclusionary rule; it’s as well-settled as law gets.  And your hypothetical about spotting an unsavory Russian in Brighton Beach ignores a rather critical aspect, wouldn’t you say?  That is, if you make a tip to the police based on what you’ve seen on the street, you haven’t obtained that evidence by violating the Constitution and hence that information is admissible.  But where the government obtains evidence illegally, that evidence and all discoveries that follow from that evidence are excluded.  None of this is controversial; this is kind of basic stuff (well, kind of basic for a 1L).

  31. Oh, and the judge you’re thinking of is Thomas Penfield Jackson.  Leave the calls for impeachment to Bill O’Reilly, please.

  32. Defense Guy writes: I understand the concern Mona, but what also worries me is that it is possible to be overcareful on this.  The communications wall that existed between our intelligence agencies and the FBI is a good example of this.

    Well, Bush asked for, and received, a repeal of that wall as part of The Patriot Act. His popularity was near 90% in the wake of 9/11 and Congress gave him virtually everything he said he needed. Repeatedly then, Bush announced that FISA was now fine for his needs, and that all surveillance of Americans was being done with warrants. But that wasn’t true—he rejected FISA amendments offered to him that might have encompassed and accommodated this NSA program, i.e., the proposed DeWine amendments,and then proceded to operate as if they were the law based on Yoo theories of unchecked Executive power in the national security context. He surveilled without warrants, in violation of FISA.

    The Yoo theories were also offered in support of the detentions of Hamdi and Jose Padilla. In the former case, the SCOTUS said no. In the latter, the Admin dropped all claims of national security risks and terorism allegations wrt Padilla, just before the SCOTUS was set to take their arguments—the Bush DoJ doesn’t seem too confident the SCOTUS would affirm their legal theories. So the issue went back to the 4th Circuit 6-8 weeks ago.

    Michael Luttig—on the 4th Cir bench and a staunch conservative on Bush’s short list of SCOTUS nominees—then ripped the Adminstration a new one in a scathing Opinion saying the Admin was playing games with the courts. He’s no lefty moonbat; he is pissed at the Bush DoJ and for good reason. (And I’ll bet he isn’t on that short list any longer.)

    We fought a Cold War—in which American citizens actually infested our govt and defense industries to spy for Stalin—without abandoning the rule of law. Some spies had to walk, because altho they were removed from sensitive positions, for a variety of reason it would have been imprudent to produce the evidence that would have been necessary to convict them. Filthy scum like Ted Hall gave very impt data about the atmoic bomb to Stalin—Hall died a few years ago, a free man and completely unrepentent.

    Harry Truman did not invoke some notion of “inherent authority” to just throw Hall in a cell with no lawyer allowed and no charges brought. It is a cosmic injustice that Hall never had to answer for his crimes, but it is also an overriding testament to our nation that he didn’t. We are not the Soviet Union, and we do let people go free rather than resort to unAmerican procedures that throw due proces and other rights to the dogs.

    The rule of law and an Executive that submits to it is essential to our way of life and government.  Permitting jihadists to send us into such a panic that we lose sight of that, and altering the fundamental balance of power between the Executive and Legislative branches, is to give them a victory indeed. We beat the Communists while adhering to the rule of law, and I’m not willing to abandon it in the face of Muslim nutjobs. They should not be given such power.

  33. Supposing an agent discovers a foreign agent in America—wouldn’t you think it would be nice to be able to do something about it?  Like, you know, arrest and prosecute him? 

    That’s fantastic Jack, really.  Now why don’t you speak to the other part of the issue, the one that you just cannot bring yourself to comment on.  You know, the part where this is no longer just about prosecution, that we must concern ourselves with prevention.

    In all of your many words you have yet to even concede that this is an issue.  Why is that?

  34. We beat the Communists while adhering to the rule of law.

    So then it is your contention that the Venona project was strictly legal?

    Please understand that I am NOT for giving the executive unfetted power at the expense of our liberty, and I am generally for having this conversation for the explicit reason of not letting it get out of control.

  35. Defense Guy: Everybody wants the govt to have the necessary tools to thwart terrorists. But as testimony in the Moussaui sentencing trial shows, the FBI had the 9/11 terrorist plot in its sights in August, and just didn’t DO ANYTHING:

    http://www.reason.com/links/links033006.shtml

    And that was before the wall was taken down or FISA was amended, and before any surveillance in violation of FISA. That story makes me sick; it was incompetence that let 9/11 happen. Certainly we needed to get more serious about preventing terrorist attacks, but there hardly seems reason to think we need to abandon the laws we have in place to do that.

  36. Mona

    We have been busily abandoning our laws for a while now.  At some point this trend may lead us to the point of no return where the only way to return to a constitutional form of government is through armed conflict.  The problem that I have with attempts at reversing the trend now, is that we are involved in a very serious conflict in waters that are essentially uncharted.  IMO, we must make every effort to ensure that attempts to undo the damage done by our past and present failures to adhere to the constitution does not cause more harm than it fixes.

    BTW – I agree with being sickened by the fact that the FBI was asleep at the wheel.  I’m also fairly discouraged at the level of animosity that seems to exist between the two political camps.

  37. So then it is your contention that the Venona project was strictly legal?

    Please understand that I am NOT for giving the executive unfetted power at the expense of our liberty, and I am generally for having this conversation for the explicit reason of not letting it get out of control.

    Sure, Venona was legal. FISA was not enacted, and at that point the SCOTUS was holding that eavesdropping on telecommunications was not a search requiring a warrant for 4th Am purposes(that decision would be reversed a few decades later).

    The Venona interceptions were way cool. The govt targeted cables of Soviet diplomatic personnel thinking they might catch a hint that Stalin was pursuing a separate peace with Hitler (he wasn’t) and instead picked up all this evidence of domestic spying at the highest levels. There were no legal prohibitions on this surveillance.

  38. True Venona was cool.  Although I think the legality of it is not so cut and dried.  From Wiki:

    The decision to not inform the President about the Project was made by unelected bureaucrats and military personnel, not by elected office holders or political appointees, and will be debated for years. This decision had domestic political consequences which reverberate to this day.

    The truth is the program was started by the military without ever getting permission or even notifying the elected representitives of the people.  Which, as it turns out, was a good thing.

  39. That’s fantastic Jack, really.  Now why don’t you speak to the other part of the issue, the one that you just cannot bring yourself to comment on.  You know, the part where this is no longer just about prosecution, that we must concern ourselves with prevention.

    In all of your many words you have yet to even concede that this is an issue.  Why is that?

    Defense Guy, don’t be daft.  What is with you people and the insistence that everyone concede this isn’t about law enforcement?  It’s the bizarrest fetish I’ve encountered in a while. 

    Let me ask a clarification:  What exactly do you propose to do, what do you mean when you say you want to prevent future attacks?  Do you mean you’d like to arrest the people plotting them?  Detain them somehow?  Remove from them their means and wherewithal to commit acts of terrorism?

    Because you understand, I’m sure, that all these involve the use of the coercive force of the state.  And in this country, you can’t use the coercive force of the state without complying with the Constitution. 

    You ask me why I won’t concede that this discussion ought to be about prevention; you fail to understand that this discussion already is about prevention.  You simply haven’t thought things through.  Do you get it now?

    (Forgive me for talking down to you, but if I were to take you at your word, you’d be suggesting that the NSA should obtain information it can’t constitutionally act on.  So I thought perhaps talking down to you would be better than presuming you were insane.)

  40. The truth is the program was started by the military without ever getting permission or even notifying the elected representitives of the people.  Which, as it turns out, was a good thing.

    Well, yes and no. FDR was fully aware of and approved the decision to monitor the diplomatic cables. What historians argue about is whether after the decryption program got underway, and the spying came out, they told Truman what the cables revealed. (The codes were not broken until after WWII was over.) Some say Hoover decided not to even tell the Executive, others say Truman was told.

    Wiki isn’t the best source for a lot of things. As it happens, I’m sort of a devotee of all things Venona, and the best work on it is by the historians John Earl Haynes and Harvey Klehr. As one reviewer of their work has written:

    While Haynes and Klehr acknowledge that there were “sensible [security] reasons” for keeping Venona secret (so secret that even President Truman lacked direct knowledge of it), they argue that “This decision denied the public the incontestable evidence afforded by the messages of the Soviet Union’s own spies.” Proof of Soviet espionage and “American Communist participation” based on the testimony of defectors was “inherently more ambiguous than the hard evidence of the Venona messages.” If Venona had been made public, they maintain, government investigations and prosecutions of Communist party members would have been more defensible. The guilt of the Rosenbergs would have been indisputable and the innocence of secretaries of state Dean Acheson and George C. Marshall would have been clearly established. Manhattan Project director J. Robert Oppenheimer’s Communist background and indifference to possible Soviet infiltration of Los Alamos (until 1943) would have been verified, but so would Moscow’s failure to recruit him as an agent.

    Hindsight is 20/20, but I think on the whole it would have been better to release this info. All the left-wing carping about McCarthyism and allegations that the existence of Communist spies were a paranoid delusion, could have been laid to rest. The national conversation would have been so different, and McCarthy’s excesses might not have taken place to give anti-Communism a bad name.

  41. Defense Guy, don’t be daft. 

    All right then.  No more daftness.

  42. Mona

    If you are trying to tell me that all of the facts I have learned on the Internet(s) are not, strictly speaking, true, then frankly I am not sure if I can go on. 

    I’ve never heard that FDR knew.  I guess I’ll see if I can’t verify your internet based claim with some rectangular paper based information transfer systems of finite mass.

  43. Mona should read Andy McCarthy’s post on The Corner at NRO today where he quotes from a law passed in 1968 which codified the previously understood position that Congress could not limit the President’s power in the manner of FISA. When they passed FISA, Congress simply repealed that section of federal law!!

  44. The Democrat Congress of that era have a lot of blood on their hands. First they turned their back on the prior committment to military aid to S. Vietnam and millions died. The passage of FISA set the stage for 9/11. WTG guys.

  45. Mona should read Andy McCarthy’s post on The Corner at NRO today where he quotes from a law passed in 1968 which codified the previously understood position that Congress could not limit the President’s power in the manner of FISA. When they passed FISA, Congress simply repealed that section of federal law!!

    Haven’t read it, but I’m horrified by Andy McCarthy. Last month or so he opined that if the courts ruled against Bush on the matter of his warrantless NSA surveillance program, Bush should ignore the ruling.

    That is anarchy and lawlessness, whether it comes from the left, right or anything inbetween. I get off that bus no matter who is driving it.

  46. Well Mona you are 2 clicks away from having your bullshit blown out the water.

  47. Mona retreats because her characterization of “our” sides position has been rendered inoperative by the revelation that even the Congress adopted essentially Bush’s position in 1968.

  48. Actually Congress adopted an even “more radical” version of Bush’s position.

  49. Of course the Executive should ignore the courts when they violate the Constitution. Why assume that it is only one branch that can violate the Constitution and the others are always as pure as driven snow?

    btw, Venona also revealed that FDR’s right-hand man Harry Hopkins was a Soviet mole. While some Americans supported an alliance with Stalin to defeat Hitler, Hopkins and his ilk supported war with Hitler in order to ally with Stalin. For them, the Iron Curtain wasn’t a regrettable outcome, but the desired goal.

    And speaking of Communist plots, that’s exactly what FISA was–a Soviet scheme to cripple our intelligence capability, dutifully enacted by Democrats. They just can’t help it.

    Gonzalez, in his written remarks submitted to the Judiciary Committe to “clarify” his testimony, strongly suggested the warrantless surveillance may also apply to purely domestic communications.

    If two Americans were engaged in an illegal war against America, the Executive would have not just the right, but the duty to surveil them. Without a warrant, if he so chose. Period.

  50. Mona will have a hard time salvaging her position that we simply cannot understand the legal nuances. LOL.

    Same thing goes for “don’t know Jack the supercilious”.

  51. … if I were to take you at your word, you’d be suggesting that the NSA should obtain information it can’t constitutionally act on.

    Oh. My. God.

    Talk about the point zinging by. Jack Roy, whether you and Mona are intelligent or not, you are certainly so focused as to be oblivious.

    “…obtain[ing] information it can’t constitutionally act on” is what the NSA does. It’s what it’s set up to do!

    The NSA doesn’t “act” in the sense you’re talking about. It won’t, because it can’t, because it isn’t designed or constituted to do so. The whole point behind its existence is that it collects information it does not, will not, and cannot act on, Constitutionally or otherwise.

    Similarly, the data the NSA collects is Constitutionally useless as information for law enforcement to act upon. They know that and cheerfully accept the restriction, because from their point of view it isn’t a restriction at all: that is not their purpose or reason for being.

    You and Mona and Greenwald and the rest of your cabal are doing exactly the same thing NSA does: presenting a complaint to law enforcement in the hope that the cops will act to suppress a nuisance. The difference is that NSA does not pass the information it collects, only the bare suggestion that this or that person is worthy of investigation. You are compiling huge compendia of data about American citizens, and not only passing them to law enforcement but exposing them to the public in general. If the NSA is violating anybody’s Constitutional rights, you are ten times as dirty in that respect as they ever will be.

    Regards,

    Ric

  52. noah: Andy McCarthy is a dishonest sack of shit. That statue he quotes from has been interpreted by the Supreme Court to require warrants in the matter of domestic national security surveillance, and to leave open the question of whether the 4th Am requires it in the foreign intelligence context. And Justice Powell referred to the statutory language McCarthy cites rather disapprovingly, thus: it would have been incongruous for Congress to have legislated with respect to the important and complex area of national security in a single brief and nebulous paragraph. And then proceeded to hold that notwithstanding that paragraph, the President had to get a warrant:

    Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2520, authorizes the use of electronic surveillance for classes of crimes carefully [p302] specified in 18 U.S.C. § 2516. Such surveillance is subject to prior court order. Section 2518 sets forth the detailed and particularized application necessary to obtain such an order, as well as carefully circumscribed conditions for its use. The Act represents a comprehensive attempt by Congress to promote more effective control of crime while protecting the privacy of individual thought and expression. Much of Title III was drawn to meet the constitutional requirements for electronic surveillance enunciated by this Court in Berger v. New York, 388 U.S. 41″]388 U.S. 41 (1967), and 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967).

    Together with the elaborate surveillance requirements in Title III, there is the following proviso, 18 U.S.C. § 2511(3):

    Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, [p303] or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.

    (Emphasis supplied.)

    The Government relies on § 2511(3). It argues that,

    in excepting national security surveillances from the Act’s warrant requirement, Congress recognized the President’s authority to conduct such surveillances without prior judicial approval.

    Brief for United States 7, 28. The section thus is viewed as a recognition or affirmance of a constitutional authority in the President to conduct warrantless domestic security surveillance such as that involved in this case.

    We think the language of § 2511(3), as well as the legislative history of the statute, refutes this interpretation. The relevant language is that:

    Nothing contained in this chapter . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect . . .

    against the dangers specified. At most, this is an implicit recognition that the President does have certain powers in the specified areas. Few would doubt this, as the section refers—among other things—to protection “against actual or potential attack or other hostile acts of a foreign power.” But so far as the use of the President’s electronic surveillance power is concerned, the language is essentially neutral.

    Section 2511(3) certainly confers no power, as the language is wholly inappropriate for such a purpose. It merely provides that the Act shall not be interpreted to limit or disturb such power as the President may have under the Constitution. In short, Congress simply left presidential powers where it found them. This view is reinforced by the general context of Title III. Section 2511(1) broadly prohibits the use of electronic [p304] surveillance “[e]xcept as otherwise specifically provided in this chapter.” Subsection (2) thereof contains four specific exceptions. In each of the specified exceptions, the statutory language is as follows: “It shall not be unlawful . . . to intercept” the particular type of communication described. [n4]

    The language of subsection (3), here involved, is to be contrasted with the language of the exceptions set forth in the preceding subsection. Rather than stating that warrantless presidential uses of electronic surveillance “shall not be unlawful,” and thus employing the standard language of exception, subsection (3) merely disclaims any intention to “limit the constitutional power of the President.”

    The express grant of authority to conduct surveillances is found in § 2516, which authorizes the Attorney General to make application to a federal judge when surveillance may provide evidence of certain offenses. These offenses are described with meticulous care and specificity.

    Where the Act authorizes surveillance, the procedure to be followed is specified in § 2518. Subsection (1) thereof requires application to a judge of competent jurisdiction for a prior order of approval, and states in detail the information required in such application. [n5] [p305] Subsection (3) prescribes the necessary elements of probable cause which the judge must find before issuing an order authorizing an interception. Subsection (4) sets forth the required contents of such an order. [p306] Subsection (5) sets strict time limits on an order. Provision is made in subsection (7) for “an emergency situation” found to exist by the Attorney General (or by the principal prosecuting attorney of a State) “with respect to conspiratorial activities threatening the national security interest.” In such a situation, emergency surveillance may be conducted “if an application for an order approving the interception is made . . . within forty-eight hours.” If such an order is not obtained, or the application therefor is denied, the interception is deemed to be a violation of the Act.

    In view of these and other interrelated provisions delineating permissible interceptions of particular criminal activity upon carefully specified conditions, it would have been incongruous for Congress to have legislated with respect to the important and complex area of national security in a single brief and nebulous paragraph. This would not comport with the sensitivity of the problem involved, or with the extraordinary care Congress exercised in drafting other sections of the Act. We therefore think the conclusion inescapable that Congress only intended to make clear that the Act simply did not legislate with respect to national security surveillances. [n6]

    Got that? The Good Justice is saying quite regardless of what Congress might set forth, when it comes to what authority the president has, and whether it trumps the 4th Am, we the Court decides. And in this instance, we say to hell with the claimed authority. Today we decide that in the area of domestic security, he has to get a warrant.

    I would add—and you can read the Opinion and see for yourself—that Powell invites Congress to pass more legislation in this area. You know, kinda like it did w/ FISA.

    You cannot trust anything McCarthy argues in this area; he won’t tell you the complete truth if it is bad for Bush.

    Whole SCOTUS holding here: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0407_0297_ZO.html

  53. Got that? The Good Justice is saying quite regardless of what Congress might set forth, when it comes to what authority the president has, and whether it trumps the 4th Am, we the Court decides. And in this instance, we say to hell with the claimed authority. Today we decide that in the area of domestic security, he has to get a warrant.

    Well gee whiz Mona, if the court says they get to decide, then well, I guess it’s settled then, huh?

    Further, why are you citing a case regading domestic security when that isn’t an issue here?

  54. Haven’t read it, but I’m horrified by Andy McCarthy. Last month or so he opined that if the courts ruled against Bush on the matter of his warrantless NSA surveillance program, Bush should ignore the ruling.

    You obviously know very, very little about the history of the United States.

    Let’s help you out here:

    Lincoln responded to Taney’s opinion by essentially ignoring it: he delivered an address on July 4 that made no explicit reference to Taney but asked whether “all the laws but one” were to go unexecuted, “and the government itself go to pieces, lest that one be violated?”

    Oh, and you may want to check out these “radical” theories put forth by Clinton’s DOJ:

    Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.

    And:

    Where the President’s authority concerning national security or foreign relations is in tension with a statutory rather than a constitutional rule, the statute cannot displace the President’s constitutional authority and should be read to be “subject to an implied exception in deference to such presidential powers.” Rainbow Navigation, Inc. v. Department of the Navy, 783 F.2d 1072, 1078 (D.C. Cir. 1986) (Scalia, J.). We believe that, if Title III limited the access of the President and his aides to information critical to national security or foreign relations, it would be unconstitutional as applied in those circumstances.

  55. Not the point Mona. (You lying sack of shit). If you would put your “reasoning” hat for a second.

    The point is that Congress passed a law saying that the President’s powers re foreign intelligence could not be contrained by Congress. So, circa 1968, that was what Congress thought. But, circa 1978, they thought otherwise. You have spent much effort demonizing the thought processes of anyone who disagrees with you on this issue. But hey bitch in 1968 a majority in Congress agreed with ME.

  56. noah, it’s quite clear to everyone with basic reading skills Mona poorly attempted to change the subject.

  57. Ace: Clinton obeyed FISA. And his lawyers told him in no uncertain terms that he had better. They carved out one very narrow exception, which they fit into Youngstown.

    Clinton’s lawyers said that in extremely rare circumstances involving national security, Clinton could breach the wall that then existed between the FBI and the CIA. But only in dire emergencies, and not remotely on an ongoing basis. That is a good faith and respectable position vis-a-vis Youngstown.

    As for Lincoln, if you think the SCOTUS is going to accept that George Bush—or any president—is free to ignore statutes and court rulings, you are deranged. If you further think a president’s doing so, and thereby initiating a severe crisis of government, is a good thing, you are unAmerican.

    We are not in a situation like the American Civil War, and only the most feverish minds think otherwise.

  58. As for Lincoln, if you think the SCOTUS is going to accept that George Bush—or any president—is free to ignore statutes and court rulings, you are deranged

    What are they going to do, arrest him?

    We are not in a situation like the American Civil War

    Nice backpedal and strawman.

    Oh, we’re not in situation of combatting domestic threats either, but you’re talking about that.

    Funny, huh?

    Clinton’s lawyers said that in extremely rare circumstances involving national security, Clinton could breach the wall that then existed between the FBI and the CIA. But only in dire emergencies, and not remotely on an ongoing basis.

    Really?

    You mean like where (as in wherever) a statute is in tension with the President’s constitutional powers, right?

    Laughable.

    Try again, you lose.

  59. Mona hasn’t changed from the old days at L2R where she was a DV groupie for nonsensical legal reasoning by leftist non-lawyers. No reasoning with her.

  60. If you further think a president’s doing so, and thereby initiating a severe crisis of government, is a good thing, you are unAmerican.

    The only “crisis” is in your head.

    See, one branch acting in a manner that is extra-constitutional to allow you to score political points isn’t a “crisis”

    It’s a usurpation of power.

  61. Mona hasn’t changed from the old days at L2R where she was a DV groupie for nonsensical legal reasoning by leftist non-lawyers. No reasoning with her

    Figures.

    I read some of her comments in the other thread.

    Grossly incongruous.

    By shouting “John Yoo” and “Youngstown” she is apparently “winning.”

  62. The point is that Congress passed a law saying that the President’s powers re foreign intelligence could not be contrained by Congress. So, circa 1968, that was what Congress thought. But, circa 1978, they thought otherwise. You have spent much effort demonizing the thought processes of anyone who disagrees with you on this issue. But hey bitch in 1968 a majority in Congress agreed with ME.

    No they didn’t as Powell’s opinion makes clear. It is true that there is, as Powell writes, some presidential authority that Congress acknowledges it cannot encroach upon. As Powell says, that is merely a neutral statement, but not a definition of what that authority is, and when Congress may cabin it.

    Everyone agrees that there are things the Congress could not legislate that would encroach on presidential authority. But Congress did not opine as to what those were, and for good reason: that’s for courts to decide. And Powell (for the Court) said the president has to get a warrant in the national security context before him, thus filling in some of the neutral blanks in Congress’s statement.

    And there is zero reason to believe the SCOTUS would agree that Congress encroached impermissably in enacting FISA. Further, arch-consevative, Reagan-era DoJ member, Con Law scholar Bruce Fein testified yesterday—during the Feingold censure hearings— that Bush knows he’d lose in the courts.

    You see, all they’d have to do is seek prosecutions or warrants based on their data obtained from the warrantless surveillance, but then they’d have to tell the FISA (or other) court how and where they got it from, and risk a ruling as to whether that is legal. They have studiously avoided doing that, as Fein—who is to the right of Attila the Hun— noted repeatedly.

    Bush would lose, and he knows it.

  63. if you think the SCOTUS is going to accept that George Bush—or any president—is free to ignore statutes

    Whoops!

    “in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has “the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional.” Id. at 906 (Scalia, J., concurring)

    Ok, just one more because we know Greenwald didn’t tell you about this Mona

    “The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States.’ U.S. Const., Art. II., § 2. His authority to . . . control access to information bearing on national security . . . flows primarily from this constitutional investment of power . . . and exists quite apart from any explicit congressional grant. . . . The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.”);

    -Department of the Navy v. Egan, 484 U.S. 518, 527 (1988)

  64. You see, all they’d have to do is seek prosecutions or warrants based on their data obtained from the warrantless surveillance, but then they’d have to tell the FISA (or other) court how and where they got it from, and risk a ruling as to whether that is legal. They have studiously avoided doing that, as Fein—who is to the right of Attila the Hun— noted repeatedly.

    Nothing like a lefty to characterize the political views of others!

    It is beyond hilarious the left, the party of handgun and smoking bans, sees themselves as libertarians.

    Too funny

  65. Mona are you dense? I don’t give a fuck what Powell said or didn’t say. That is not the point!! The point, once again for dunces, is that Congress passed that language! So it was their collective understanding of the traditions of American law at that particular point in time!!

    And you claim to be a lawyer?

  66. Bush would lose, and he knows it.

    You say this with the same vehemence that Bush stole the 2000 election, right?

  67. I listened to the hearings. Fein was one of five who testified. He was not persuasive. John Dean also testified. He is the author of a book in which he lays out a case for impeaching the President. Hells Bells Congress could impeach Bush for anything they care to characterize as “high crimes and misdemeanors”.

    Take a midal or something Mona.

  68. Further, why are you citing a case regading domestic security when that isn’t an issue here?

    (1) Because it construes the statutory language McCarthy and Noah think constitutes some sort of slam dunk defense of Bush, when it in fact does no such thing (and McCarthy knows that), and

    (2) The legal reasoning strongly supports the wide-ranging belief of many lawyers—left, right and center—that Bush is in violation of a constitutional, criminal law, and

    (3) AG Gonzalez has left a strong implication in his written remarks following his statements to the Senate Judiciary Committee that Bush is relying on his notions of inherent authority also in purely domestic matters.

  69. Nothing like a lefty to characterize the political views of others!

    It is beyond hilarious the left, the party of handgun and smoking bans, sees themselves as libertarians.

    And nothing like a Bush cultist to spew out ad hominem red herrings when confronted with compelling evidence that Dear Leader is behaving illegally.

    I ardently oppose both gun contrrol and smoking bans. Not that either position holds any relevance to the issue of Bush’s criminal behavior.

  70. Mona, you said (in this thread);

    … there was no act of Congress in conflict with the president’s treatment of Hamdi.

    Is there a reason you are studiously ignoring all any references to the Non-Detention Act of 1971?

    In 1971, Congress passed legislation which requires specific congressional authorization for the detention of U.S. citizens. Codified in 18 U.S.C. § 4001(a), the Non-Detention Act expressly states: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”

    The legislative history of the Non-Detention Act suggests that Congress clearly saw it as a statutory check on the detention of U.S. citizens, even during times of military conflict. The Non-Detention Act was enacted as part of larger legislation that repealed the Emergency Detention Act of 1950 — a blanket authorization for the attorney general to detain suspected enemy agents, including Americans, during times of war. During the waning years of the Vietnam War, Congress acted to replace this open-ended authority with a limitation of executive power to protect Americans from unilateral action by the executive branch. Under the law, the president may only hold U.S. citizens if an act of Congress specifically authorizes the detentions. Many members of Congress in speaking in support of the Non-Detention Act were mindful of the nation’s still-fresh detention of Japanese Americans during World War II. Congress viewed rolling back that precedent as an opportunity to chart a new course.

    The plain language of the Non-Detention Act has led some to point to the recent Senate Joint Resolution 23, known as the Authorization of the Use of Military Force (AUMF). For example, in Hamdi v. Rumsfeld, the Fourth Circuit upheld the Administration’s claim that even if the Non-Detention Act precluded the executive detention of U.S. citizens without congressional authorization, the AUMF provided that authorization.However, given the legislative history of the AUMF and its lack of explicit language to that effect, this holding is extremely questionable.

    The AUMF was passed in the weeks after September 11, 2001 to give the president authority to use military force specifically against those who planned, committed, or aided the terrorist attacks on the World Trade Center and the Pentagon. Nowhere in its language does the AUMF authorize indefinite detentions of U.S. citizens, as required by the Non-Detention Act.

    This is a major part of the amicus brief submitted by the PFAW to the Supreme Court. It is the exact same argument you are making here with regard to the Terrorist Surveillance Program; that the lack of an explicit mention of FISA (that the AUMF supercedes it) in the AUMF means that the AUMF has no effect on FISA.

    Needless to say, that argument was rejected by the Fourth Circuit and the Supreme Court.

    According to the plurality (written by O’Connor) and Thomas, it simply does not matter that the AUMF did not explicitly mention the Non-Detention Act in its text. By authorizing the President to deploy military force against Al Qaeda, the AUMF is the “Act of Congress” that satisfies the Non-Detention Act’s requirement that would enable the President to detain American citizens – provided the citizens concerned are among the set of people the Congress authorized the President to use military force against.

    This precedent easily applies to FISA and the Terrorist Surveillance Program. That the AUMF did not make mention of FISA does not mean that the AUMF is not the statute that allows the President to order eavesdropping without applying for a FISA warrant in the United States – provided the targets are, of course, carefully limited to those the AUMF authorized the President to use military force against.

    The key here is that the detention of enemy combatants is part and parcel of military force. So is the gathering of intelligence through surveillance and many other methods.

  71. Ace says:

    Whoops!

    “in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has “the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional.” Id. at 906 (Scalia, J., concurring)

    Ok, just one more because we know Greenwald didn’t tell you about this Mona

    “The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States.’ U.S. Const., Art. II., § 2. His authority to . . . control access to information bearing on national security . . . flows primarily from this constitutional investment of power . . . and exists quite apart from any explicit congressional grant. . . . The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.”);

    -Department of the Navy v. Egan, 484 U.S. 518, 527 (1988)

    Uh huh. And none of that contradicts anything I’ve said, or would help Bush in defending himself in court —something he has avoided doing at all costs wrt the NSA program.

    And noah—you are in no position to know whether Fein was persuasive, because you have no clue what constitutes a solid legal argument.

    Orin Kerr over at Volkh is not a lefty. He has analyzed the same case law Greenwald, Fein and I have, and concluded Bush would lose in the SCOTUS by 8-1. I believe, after examining the jurisprudential posture of his possible holdout, Thomas, that it would be 9-0.

    Other non-lefties who have also made this abundantly clear are former FBI Director William Sessions (Reagan appointee and former federal judge) and U of Chicago Con Law professor Richard Epstein. I think, noah and Ace, these gentlemen have a better grasp of the law than you two do.

    Finally, the Hamdan case just now coming under review by the SCOTUS. Do expect some extremly pointed language addressing these inherent authority claims from the Bush DoJ. The case does not reach the NSA program, but it does reach the legal theories the DoJ offers in defense of it. Prepare for judicial smackdown.

  72. Don’t worry Mr. Knight reasoning doesn’t work with Mona. To her the fact that Congress once thought that they could not constrain the President does not give her any pause whatsoever to assert that the SCOTUS would without question fail to consider US history, prior legislative enactments, etc in their consideration of the issue and rule against the administration. Just like many similar looney tuners who thought they would win in FAIR v. Rumsfeld.

  73. Mona, you are a lying sack of shit. Andy McCarthy was not making a legal argument when he quoted from the law passed in 1968. He was merely making, as I have repeatedly tried to get you to concede, the perfectly obvious point that at that time a majority in Congress considered laws like FISA to be improper.

    But you won’t even concede the obvious so one must question whether you arguing in good faith.

  74. Mr Knight: amicus briefs filed by PFAW or anyone else are irrelevant. What matters is what O’Connor, writing for the Court, held, which was this (in relevant part):

    The Government again presses two alternative positions. First, it argues that §4001(a), in light of its legislative history and its location in Title 18, applies only to “the control of civilian prisons and related detentions,” not to military detentions. Brief for Respondents 21. Second, it maintains that §4001(a) is satisfied, because Hamdi is being detained “pursuant to an Act of Congress”–the AUMF. Id., at 21—22. Again, because we conclude that the Government’s second assertion is correct, we do not address the first. In other words, for the reasons that follow, we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe (assuming, without deciding, that such authorization is required), and that the AUMF satisfied §4001(a)’s requirement that a detention be “pursuant to an Act of Congress” (assuming, without deciding, that §4001(a) applies to military detentions).

    In other words, the AUMF was found to specifically trigger 4001(a) of the Non-Detention Act, and thus, Bush’s detention was within the statute, and legal. That is, Bush is found to be in compliance with the Non-Detention Act.

    FISA, on its face, applies in peacetime and time of war, and does not have any exception akin to 4001(a) of the Non-Detention Act that the AUMF could trigger. The Adminstration has sought to argue otherwise, but not very strongly, and has largely abandoned that argument to prefer the Article II “inherent authority” argument. David Kris who was the FISA expert with the Bush DoJ from ‘00-’03, just testified to the Judiciary Committee that there is no reasonable basis for arguing that the AUMF moots FISA. (He had sent very alarmed emails to his former colleagues when news of this illegal program was leaked, because he immediately and clearly saw how specious were their legal arguments.)

  75. Most of the legal analysis I have seen does not even consider the question of whether FISA itself is unconstitutional.

    Aside from that, FISA, it seems, placed the nation in great peril and continues to do so.

  76. noah again claims: Mona, you are a lying sack of shit. Andy McCarthy was not making a legal argument when he quoted from the law passed in 1968. He was merely making, as I have repeatedly tried to get you to concede, the perfectly obvious point that at that time a majority in Congress considered laws like FISA to be improper.

    But you won’t even concede the obvious so one must question whether you arguing in good faith.

    First, how amusing that someone who was calling me a “moonbat” before I even began particiapting in this week’s round of the discussion, and who has advised me to take some Midal[sic], presumes to suggest I am arguing in bad faith.

    The language McCarthy posted does not mean what he implied it does, and what you want it to. Justice Powell made that more than clear. It does not, in any way, mean that FISA is unconstitional.

    And that is how the SCOTUS would rule.

  77. noah claims: Aside from that, FISA, it seems, placed the nation in great peril and continues to do so.

    I think that was true when it placed a wall between the intelligence agencies. The Patriot Act repealed that wall, which is a good thing.

    Subsequent to the AUMF, Congress has several times amended FISA, in consultation with the Executive branch. (Which is among—but not the only— reasons why the AUMF would not be ruled to preempt FISA; FISA now comes subsequent to the AUMF.)

    George Bush is going to be hard-pressed to argue that he worked with Congress to pass legislation, which he signed, and which he has publicly praised as sound, that is actually unconstitutional.

  78. So,when Congress passes a law it does not mean what it says until the SCOTUS has ruled? What were the people in Congress thinking by their language? That was McCarthy’s only point. But it seems to beyond your ken. Your reasoning is horseshit. You should really be embarassed.

  79. So,when Congress passes a law it does not mean what it says until the SCOTUS has ruled? What were the people in Congress thinking by their language?

    And Justice Powell— with resort to among other things, the legislative history of the relevant act—explained what Congress was thinking. Congress was not making any substantive claims as to what legislation would be unconstitutional.

    And Andy McCarthy knows that.

  80. And nothing like a Bush cultist to spew out ad hominem red herrings when confronted with compelling evidence that Dear Leader is behaving illegally.

    Yes, yes, yes, of course points you can not refute are “red herrings!”

    You have no “compelling” evidence.

    Nor do you have any

    Uh huh. And none of that contradicts anything I’ve said

    Um, moron, I cited your quote and refuted with a court ruling in the next paragraph.

    You obviously can not read.

  81. The legal reasoning strongly supports the wide-ranging belief of many lawyers—left, right and center—that Bush is in violation of a constitutional, criminal law, and

    Um, the “legal reasoning” you’re citing is regarding the domestic actions of the President.

    It isn’t terribly relevant, esp. when it’s been wholly rejected by four federal appellate rulings.

    He has analyzed the same case law Greenwald, Fein and I have, and concluded Bush would lose in the SCOTUS by 8-1.

    Well, there you have it!

    A freakin’ leftist goon who can’t even read has “anaylzed” the “case law” and made a sweeping pronouncement.

    It may as well be fact!

  82. Um, moron, I cited your quote and refuted with a court ruling in the next paragraph.

    You obviously can not read.

    Look, a 1986 District Court (lowest on the totem poll) Opinion would be all but irrelevant to this discussion, even if it stood for what you want it to, which it doesn’t.

    Nothing you have posted stands for the proposition that FISA is unconstitutional or that Bush is acting legally. There are reasons why gazilions of lawyers, including many Republicans and/or conservatives, do not even consider or address such nonsense as you post when parsing the legal issues and concluding that Bush is behaving illegally.

    You might want to consider why that is.

  83. Mona says:

    Uh huh. And none of that contradicts anything I’ve said

    Ok,let’s make this clearer for you:

    Mona says:

    if you think the SCOTUS is going to accept that George Bush—or any president—is free to ignore statutes

    Ace says:

    Whoops!

    “in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has “the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional.” Id. at 906 (Scalia, J., concurring)

    Get it now?

  84. Look, a 1986 District Court (lowest on the totem poll) Opinion would be all but irrelevant to this discussion, even if it stood for what you want it to, which it doesn’t.

    Who is citing that?

    Nothing you have posted stands for the proposition that FISA is unconstitutional or that Bush is acting legally.

    Um, nothing you have posted demonstrates Bush is acting illegally.

    Nothing.

    Say it again:

    Nothing.

  85. There are reasons why gazilions of lawyers, including many Republicans and/or conservatives, do not even consider or address such nonsense as you post

    “gazilions” ?

    How many is that exactly?

    Er, because of course Greenwald has no agenda Mona, none at all.

    Um, is it maybe because it will reduce their points to utter nonthingness perhaps?

    Just maybe?

  86. and U of Chicago Con Law professor Richard Epstein.

    Speaking of him, he said:

    “FISA only applies to “situations where the target of the surveillance is a U.S. person or where that surveillance is “acquired in the United States.” The debate over the legality of president’s action covers only those last two categories of cases, not everything done by the NSA.”

    Now can you please tell me the “compelling evidence” you have which demonstrates Bush is targeting US persons on US soil?

    Esp. per this:

    Americans come to the program’s attention only if they have received a call or e-mail message from a person overseas who is already suspected to be a member of certain terrorist groups or linked somehow to a member of such groups. And the agency still gets a warrant to intercept their calls or e-mail messages to other people in the United States

    .

    Thanks in advance.

  87. Hey Mona, how did legal academia fare in

    Rumsfeld v. Forum for Academic and Institutional Rights, 04-1152?

  88. Yes Ace, I get it, and Bush didn’t veto FISA; he has repeatedly signed its amended version into law, and lavished praise on it in public—before this illegal program made the news.

    Scalia is right, and I agree with him in the Opinion you cite. No one doubts that if Congress passed a law such as the FASA hypo Mr. Knight proffered in the below thread, that the president could ignore it. But Bush has adopted a theory of Executive power that he purports means he can ignore any and every law he likes, as long as he invokes national security. No court is going to uphold that, and that is what I meant when I said no court would hold that.

    Moreover, when a president does ignore a statute in good faith, he does not seek to avoid judicial review, so certain is he that the SCOTUS would agree with him. Bush is doing everything in his might to keep his warrantless surveillance from being ruled on in any court. Why do you suppose that is?

  89. First, how amusing that someone who was calling me a “moonbat” before I even began particiapting in this week’s round of the discussion,

    uhhuh. You more than established your moonbat credentials in the thread on teh Iraq war several weeks ago.

  90. Ace asks: Now can you please tell me the “compelling evidence” you have which demonstrates Bush is targeting US persons on US soil?

    They admit it. Gonzalez admitted it when he testified to the Senate Judiciary Committee that what the NSA surveillance does falls within FISA. The Adminstration is not arguing that its acts fall outside of FISA’s language; they argue, for every-shifting reasons, that they are free to ignore FISA.

    BTW, I will concede that my sentence about “no court ruling that a president may ignore the law” was too literal, and is not true in the very case Scalia cited. If, for example, Congress passed a law purporting that it was appointing all the heads of the president’s cabinet, that would be manifestly unconstitutional and could and should be ignored.

    But rather obviously, neither Scalia, nor any other judge or justice, thinks this would be a common thing, and it would be outrageous for a president to just go around ignoring laws based on weak and even frivolous claims that laws are unconstitutional. That would be lawlessness.

    And Bush’s arguments in defense of his warrantless surveillance border on frivolous, and are certainly very, very weak.

  91. And (a) exactly how is Bush doing everything to keep courts from rulng?

  92. Greenwald has a book to sell so we know why he’s spinning so wildly. It’ll no doubt get a prominent display with all the other “bush is hitler” books at Border’s, but will likely join Kos’ craptacular failure in the remainder bins in short order.

    What’s your excuse tho Mona.

    Aside: I wonder what Greenwald’s position on the Solomon amendment case was?

  93. Yes Jim in Chicago, Bill Buckley and I, moonbats to the max (myself, I think I’m in intelligent and sound company):

    Buckley Says Bush Will Be Judged on Iraq War, Now a `Failure’

    March 31 (Bloomberg)—William F. Buckley Jr., the longtime conservative writer and leader, said George W. Bush’s presidency will be judged entirely by the outcome of a war in Iraq that is now a failure.

    “Mr. Bush is in the hands of a fortune that will be unremitting on the point of Iraq,’’ Buckley said in an interview that will air on Bloomberg Television this weekend. “If he’d invented the Bill of Rights it wouldn’t get him out of his jam.’’

    Buckley said he doesn’t have a formula for getting out of Iraq, though he said “it’s important that we acknowledge in the inner councils of state that it (the war) has failed, so that we should look for opportunities to cope with that failure.’’ … “The neoconservative hubris, which sort of assigns to America some kind of geo-strategic responsibility for maximizing democracy, overstretches the resources of a free country,’’ Buckley said.

    Rest here:

    http://www.bloomberg.com/apps/news?pid=10000103&sid=anN._IfoJo1M&refer=us

  94. Mona, can you refer me to the case/language you keep referring to re: the McCarthy issue & Justice Powell?

    Did you already post it?

  95. Buckley Says Bush Will Be Judged on Iraq War, Now a `Failure’

    Yeah, pronouncing that from you Manhattan office takes guts and a lot of intellectual honesty.

  96. And given the nature of your argumentation both here and on L2R no ruling in a court of law or event in Iraq will ever change your position one iota…thats because its seamless nonfalsifiable bullshit.

    Predicting a smackdown in Hamdan? The DC circuit supported the gov. unanimously. Unfortunately Roberts was forced to recuse himself, so you may be right. But the nation would be better off if they kept enemy combatants out of US courts. Scalia is right.

  97. Jim in Chicago asks:Greenwald has a book to sell so we know why he’s spinning so wildly. It’ll no doubt get a prominent display with all the other “bush is hitler” books at Border’s, but will likely join Kos’ craptacular failure in the remainder bins in short order.

    What’s your excuse tho Mona.

    Aside: I wonder what Greenwald’s position on the Solomon amendment case was?

    My “excuse” is a devotion to truth and the rule of law, and the form of govt bequeathed us by the Founders. Moreover, Greenwald’s book will not even once liken Bush to Hitler, I am certain of that. Nothing he has written at his blog evinces any ChimpyMcHitler type language, and he has even ridiculed that sort of thing.

    I don’t know what his position on the Solomon Am case is, you’d have to ask him. I can tell you that I agreed with what the SCOTUS held.

  98. Ace, the Powell language and link to the whole Opinion was in my comment here:

    http://www.proteinwisdom.com/index.php/weblog/entry/20081/#149569

  99. Nothing he has written at his blog evinces any ChimpyMcHitler type language, and he has even ridiculed that sort of thing.

    Too funny:

    UPDATE (by Glenn): As I point out in my Comment here, the claims by The Washington Times, predictably parroted by Powerline and company, are based on several transparent myths that one can believe only if one has a complete lack of understanding as to how our system of government works.

    Intellectually bankrupt Bush apologists have long been propagating the myth

  100. Thanks Mona, I’m reading it now.

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