March 29, 2006

NSA / FISA follow-up:  when narratives compete (UPDATED)

Both Powerline and AJ Strata are looking into an important NSA/FISA-related story that is (shockingly!) being interpreted differently by the NYT and the Washington Times

First, here’s John Hinderaker:

Yesterday, five former judges of the FISA court testified before the Senate Judiciary Committee on the National Security Agency’s international terrorist surveillance program. Some observers have alleged that the NSA program is illegal to the extent that it includes surveillance conducted without a FISA court order.

Here is how the Washington Times reported the judges’ testimony, in a story headlined “FISA Judges Say Bush Within Law”:

A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).

The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president’s constitutional authority to spy on suspected international agents under executive order.

“If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now,” said Judge Allan Kornblum, magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. “I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute.”

This is consistent with what we have written on the legality of the NSA program.

[My emphases]

This is consistent, too, with what I have also argued all along; and it seems to side with the argument that Congress cannot legislate over Article II authority to a panel of secret judges.  Or rather, they can—but the Constitution allows the President to ignore such legislation if it hinders his mandate to protect the country.

Here’s Hinderaker again:

Eric Lichtblau of the New York Times appears to have attended a different hearing. The Times’ story is headlined “Judges on Secretive Panel Speak Out on Spy Program.” Lichtblau reports:

Five former judges on the nation’s most secretive court, including one who resigned in apparent protest over President Bush’s domestic eavesdropping, urged Congress on Tuesday to give the court a formal role in overseeing the surveillance program.

In a rare glimpse into the inner workings of the secretive court, known as the Foreign Intelligence Surveillance Court, several former judges who served on the panel also voiced skepticism at a Senate hearing about the president’s constitutional authority to order wiretapping on Americans without a court order. They also suggested that the program could imperil criminal prosecutions that grew out of the wiretaps.

These reports can’t both be right. If what the Washington Times says is correct, the New York Times’ account is deeply misleading, if not outright false. As we noted here, Eric Lichtblau has a huge personal investment in the idea (wrong, I think) that the NSA program is “illegal.” Is Lichtblau’s commitment to that proposition causing him to report falsely on testimony that was given to a Senate committee? Or did the Washington Times go too far in characterizing the judges’ approval of the NSA program?

We are trying to track down a transcript of the judges’ testimony, which no doubt will answer these questions.

One thing about Lichtblau’s accounting of events that gives me pause is the suggestion that FISA judges suggested that criminal prosecutions growing out of wiretaps could be imperiled by the program—which I have argued seems to be the underlying objection certain dissenting judges have intimated in their criticism of the program.  But the NSA is allowed to summarize their findings and give them to the FBI, who is then responsible for making sure due process is followed.

Thinking about this from the perspective of criminal justice, the dissenting judges seem to view the NSA program as an extension of law enforcement and not military—and so they conclude that information obtained without a warrant would lead to a “fruit of the poisonous tree” dismissal in criminal cases.  But what other possible reason would it be legal for the NSA to share summaries with the FBI if not to put them on the track of, in this case, suspected terrorists (assuming that a criminal prosecution is even what we’re after in such cases).

In any event, the two accounts differ drastically, so I, too, would like to see the transcript made available.  In the meantime, AJ Strata looks closely at the Times version and finds some interesting suggestions.  Writes AJ:

It sounds like the Washington Times may be the more accurate representation since the NY Times [...] reporter made this interesting reference:

Judge Robertson made clear that he believed the FISA court should review the surveillance program. “Seeking judicial approval for government activities that implicate constitutional protections is, of course, the American way,” he wrote.

But Judge Robertson argued that the court should not conduct a “general review” of the surveillance operation, as Mr. Specter proposed. Instead, he said the court should rule on individual warrant applications for eavesdropping under the program lasting 45 or 90 days.

Emphasis mine. Even Judge Robertson, who was quoted in the original NY Times Leak article as having resigned in protest because the NSA was ‘tainting’ the FISA process, is clearly saying that the FIS Court should not review the program, but warrants for targets here in the US if they are deemed important leads. So what else is new? This is the way it works now, as the Washington Times reported.

There are 3 important stories about the NSA program that have grown out of all this controversy, Senator Feingold’s clammoring for “censure” notwithstanding (and notwithstanding that he himself was never briefed on the program; he just feels in his gut that there is something untoward about “spying” on “domestic” phone calls):  1) A highly-secretive program was leaked, after a year, by the NYT.  We don’t know who the leaker is, as yet, but that person circumvented the procedures for “whistleblower” status, which wouldn’t apply here anyway, I don’t think; 2) because the actual details of the program and its targets remain secret (and scenarios positing wrongdoing strictly hypothetical), there is no way to say for certain whether the President broke the law—unless, of course, you are one of those who has been briefed, or you have an intricate knowledge of the program from a judicial standpoint; and 3) this whole affair has been an attempt by the Executive to reassert Article II wartime authority, and a competing urge by the Legislative branch to retain some degree of control over what are Constitutionally CinC decisions by outsourcing their “approval” to a secret court comprised of unelected officials.

I’m interested to see how this shakes out—and I realize this raises the hackles of a lot of civil iberties absolutists and partisans hoping to score points with allegations of Presidential wrongdoing in the run-up to an election—but thus far, I haven’t seen a thing to suggest that any laws have been broken.  Instead, I’ve seen what I would describe as a turf war over who gets to decide the proper use of a military program during wartime when the program would seem, under growing encroachment, to be constrained by FISA legislation (which is itself of dubious constitutional stock, I’d argue).

****

See my previous posts here.

update: NRO’s Media Blog locates the transcript, which makes it clear that the NYT’s Lichtblau, well, let’s say he finessed his piece somewhat, and in the process misinformed his readers.

But of course, the truth is secondary to the support of the dominant narrative.  After all, we need to be taught the important lesson in all this—and sometimes, inconvenient facts get in the way of that narrative. 

But we can forgive this.  Given that it’s for the greater good and all…

Posted by Jeff G. @ 9:00pm
100 comments | Trackback

Comments (100)

  1. But the NSA is allowed to summarize their findings and give them to the FBI, who is then responsible for making sure due process is followed.

    You had a cite for this. What was it?

  2. I have the cite:

    GOOGLE

  3. BTW, that Howard TV ad is a real letdown

  4. . . . ignore actus ?

    TW old—actus’ act is old

  5. actus when have you offered to find anything for jeff? why don’t you do a little hunting for yourself and chrissakes get your fucking dick off jeff’s bandwidth. i mean shit you’re like in everyfrickin thread.

  6. The most telling past of this story is the fact that the NYT, WaPo and other “mainstream” media outlets have basically buried the story because it doesn’t jive with their “Bush Lied, Bush Spied” story line. If the esteemed jurists HAD

    testified that Bush HAD violated the FISA law or “abused his powers” does any reasonable person believe that their testimony wouldn’t have been front page news, the lead item on the nightly

    broadcasts and dominated the news cycle for days?

    I can just hear the glee emanating from Chris Matthews as he beat that horse to death over and over and over.

    Hell, Dick Cheney would have had to shoot another lawyer to get the media to talk about something else.

  7. The Washington Times article uses “quotes” where the NY Times generalizes.  That would (Preliminarily) make me think that the WT is the more accurate of the two.

    Oh, my obligatory “ignore acthole” comment.  Really, he will go away if we ignore him.

  8. “If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now,” said Judge Allan Kornblum, magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. “I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute.”

    Will Russ Feingold shut up now? Will the left apologize? Will we ever find a single soul who was violated by the ILLEGAL WIRETAPPING done by the imperial REICH WINGER BUSHCO!?!?

    Sadly, no.

  9. I have the cite:

    GOOGLE

    I tried. didn’t work. Reason I ask is because I remember hte case being unclear as to whether it assumed the proposition or actually held so. But I could be remember wrong. So I ask.

    actus when have you offered to find anything for jeff? why don’t you do a little hunting for yourself and chrissakes get your fucking dick off jeff’s bandwidth. i mean shit you’re like in everyfrickin thread.

    Once there was a question over a court’s power to review classified materials during FOIA litigation. I cleared it up for folks.

  10. Are the WaPo and NYT still in business? If so, the shareholders could not possibly be happy.

  11. I’ve got to find a place to hide!  I need to be really hunkered down when the heads start to explode. 

    What with the Iraq docs coming out now and nibbling away at the “No WMD” crowd, and now the “EVIL SPYING BUSHCO” bubble getting pricked, there are a lot of heads getting ready to burst.

    Run for cover.

  12. I cleared it up for folks.

    Yes, I can attest to that.

  13. Just so we’re clear, Jeff says:

    This is consistent, too, with what I have also argued all along; and it seems to side with the argument that Congress cannot legislate over Article II authority to a panel of secret judges.  Or rather, they can—but the Constitution allows the President to ignore such legislation if it hinders his mandate to protect the country.

    This formulation is so massively incorrect, it beggars belief that Jeff continues to cling to this many months removed from when these issues were first aired.

    At least, I’m glad we’ve dropped all pretense that the AUMF-authorized-the-NSA-program argument was in any way meritorious.

    But this Article II nonsense must end.  The notion that some unenumerated Article II authority to “protect the country” gives the President the ability, as Jeff puts it, “to ignore..legislation” is false.  There are many problems with this legal argument.  Perhaps the biggest problem, which is all I have time to point out here, is that Jeff has not, and cannot, draw any bright lines for where this “ignore legislation for the sake of national security” power ends. 

    What, exactly, is this “mandate to protect the country”?  Who defines it?  Who defines the enemy?  Who defines which laws are ignorable?  And if laws are ignorable, are provisions of the Constitution as well?  Article II doesn’t one damn thing about the scope of the President’s power to “protect the country.” Surely, the President himself doesn’t get to define the universe of “national security” issues that might require him to “ignore legislation,” does he?  If he did, he could theoretically enlarge that universe so as to be exempt from virtually every law.  Yes, as Jeff loves to point out, this is theoretical.  But you can’t make legal rules for the sake of political expediency—as Jeff has been trying to do since this story broke—without examining the potential results of those rules at the edges.

    So we’re back to where we started.  Congress is the only entity that can make this call, at least insofar as the exercise of inherent Article II powers might or does affect the rights (be they Constitutional or statutory) of American citizens.  (And, let’s face it, they’ve made this call—back in 1978—to restrict the President’s authority to intercept electronic communications when doing so targets U.S. citizens inside the U.S., unless he gets court approval beforehand or within 72 hours.)

    The bottom line is that Jeff is arguing for a system by which the President gets to define the universe of national security threats that justify ignoring the law, and then ignore the law accordingly.  Jeff would probably argue that the political processes will protect against clear Constitutional or statutory violations; if the President goes to far, he’d argue, he’d be impeached, or defunded, or censured.  But this leaves the validity of the Constitution and laws of the U.S. at the whim of political processes.  And the whole point of the Constitution is to insulate individual rights from such whims.  Jeff and the lot of you here may want such a system; the rest of us, I hope, do not.

  14. Sorry for the doublepost, but I want to address this contention:

    “If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now,” said Judge Allan Kornblum, magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. “I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute.”

    This is a remarkably incoherent statement by a sitting magistrate judge.  Under this standard, the Executive would have no incentive to actually put together a viable FISA application.

    Hypo: The NSA gets solid intelligence through foreign signals gathering that there is an AQ agent/US person in Chicago communicating with an AQ agent/US person in New York, and they’re plotting an attack for next week.  So there’s no doubt FISA applies, but time is also of the essence.  If the President has “constitutional authority” to “act unilaterally” if his application is denied, he would have no incentive to put together a viable case for a FISA warrant.  The AG could stroll in there and say to the FISA judge, “Dude, Mr. X in Chicago is one BAD DUDE.” And the judge would say, “Sorry, government, but that’s not enough for me to issue this FISA court order to tap his phone.” And the AG would run out there, and be like, “SWEET—since there’s no time to go to the Review Court, now we can go ahead and tap that phone unilaterally.  No need for FISA at all.”

    Judge Kornblum’s statement, unless taken out of context, makes no sense.  If the Pres can act unilaterally when an application is denied, what is point of FISA at all?  What good is requiring a court order in the first place if the President can act unilaterally when one is denied? 

    Anyone?  Bueller?

  15. What, exactly, is this “mandate to protect the country”?  Who defines it?  Who defines the enemy?  Who defines which laws are ignorable?

    In the face of a threat, the President. And if we think he’s overstepping his bounds we can 1) Agitate for impeachment and 2) fail to re-elect him.

    That’s why we have an elected Executive. We hope he’ll make the tough calls and get it right. If he doesn’t we have ways to fix it.

  16. The bottom line is that Jeff is arguing for a system by which the President gets to define the universe of national security threats that justify ignoring the law, and then ignore the law accordingly.

    I don’t know if that’s what Jeff is arguing for, but that is the position the administration takes, reiterated again in oral argument in the Hamdan case.

  17. One possible answer to your question, M.F., is that the President’s war powers are limited only by other provisions of the Constitution.  This may be the reason why (IIRC) the NSA information cannot be used in criminal prosecutions, because it arguably violates the 4th amendment, which, under the theory proffered here, Constrains the President where FISA does not.

  18. The Washington Times article uses “quotes” where the NY Times generalizes.  That would (Preliminarily) make me think that the WT is the more accurate of the two.

    B-b-b-but, the MOONIES!

  19. Instead, I’ve seen what I would describe as a turf war over who gets to decide the proper use of a military program during wartime when the program would seem, under growing encroachment, to be constrained by FISA legislation (which is itself of dubious constitutional stock, I’d argue).

    Spot. On.

  20. MF

    I saw an article which I don’t have time to find now, but it was by the former head of NSA under Clinton- he says that many times the situations are not as simple as you are making them out to be.  Sometimes they are monitoring a phone, not a person, and they don’t know who the calls will be to or from, or to what country they are calling.  They don’t really have enough information to get a warrant but sometimes it would still be important to monitor.  We are at war and if a phone in Pakistan is being used by terrorists I want them to listen to it, not have to satisfy some judge because they might call the US.

  21. Sheesh,

    You gotta be kidding me right? Who uses the New York Times for “information” anymore anyway?

    And, there’s a DEAD GIVEAWAY in the lede that nobody caught. Here it is:

    “… one who resigned in apparent protest …”

    This is clearly the reporter’s opinion. He can’t just ask the judge why he resigned, and let the facts speak for themselves?

    Loose shit. Same shit. Different day.

  22. B-b-b-but, the MOONIES!

    That has always amused me too Sean M. grin

    On the one hand we’re terrible imperialists that are abusing Islamists in Gitmo and we should be so ashamed of ourselves because everything they say is true, and we should do something like turn over land in “Big Sky” country to them so they can assimilate and come to love us one day.

    On the other hand we’re not to believe anything that’s in the Washington Times because it’s owned by a religious guy that already has land in “Big Sky” country…

  23. <a href=”http://media.nationalreview.com/093732.asp” target=”_blank”>Media Blog</a> tracked down the transcript and <b>shock!</b> Massively out of context.

    OT of NSA/FISA but on topic the media incessant use of convenient “quoting” Ramesh Ponnur reminded us of this gem today.

  24. Media Blog link fixed, sorry.

  25. C-SPAN has video on the hearing with a 3 judge panel. I have been unable to find video with the other 2. All 3 said that FISA cannot intrude on the President’s article 2 powers. One judge said the President might evade FISA at his peril if a court disagreed with him later.

    I have always felt that the SCOTUS would tend to side with the president if they had a chance to rule. If the statements of these judges are any indication then I think it is virtually certain.

  26. M.F. will find a way to spin it otherwise, in 3…2…1…

  27. Where is moonbat Mona?

  28. It is interesting that Feingold didn’t bother to show up and ask questions of the three judges.

  29. But the legal situation does seem incoherent. If FISA cannot constrain the president, then WTF is it for? The answer…more bureacracy and a fig leaf for those concerned about presidential power.

  30. FISA only kicks in if you are trying to use something from it for criminal prosecution – then it might make evidence inadmissable.  The point that the “domestic spying” crowd wants to avoid is that very little of this is FOR THAT PURPOSE.  AND WHEN IT HAS BEEN THE FEDS HAVE GOTTEN REVIEW. (sorry for the shouting – my patience has worn out)

    FISA was enacted to stop the Feds from using intel to go after American on criminal matters – not stop us from gathering intel in war.

  31. But the legal situation does seem incoherent. If FISA cannot constrain the president, then WTF is it for? The answer…more bureacracy and a fig leaf for those concerned about presidential power.

    well, I think the distinction of importance is the condition of war.  So long as there is a war (or authorization of force or police action or whatever the hell we want to call it today), then the president would be remiss in his duty to defend the country…and his ability to override FISA is still constrained to actions that he deems necessary to fighting the war.  However there are a host of other reasons one might want to override FISA for, say, domestic situations…and I don’t think Article 2 would automatically give the President right to ignore it.

  32. whether we are at war or not it is always the duty of the President to protect the nation.

  33. If his judgment is poor, he faces impeachment. The pernicious idea that Bush or Clinton for that matter would deliberately and conciously act against the nation’s interest is the basis for our polarized nation.

  34. whether we are at war or not it is always the duty of the President to protect the nation.

    well, this is true- and perhaps war was not the best way to define the general distinction (but it certainly serves as a way to define the current actions being discussed from a general case).  Perhaps, he has authority to ignore such protocols in the general interest of national security from international threats?  Is that a more palitable articulation?

    I think it’s also important to note that even though the President has the responsibility of defending the nation, there are still procedures which must be followed; the President cannot suspend the constitutional authorities of congress simply because of national security interests.  While FISA cannot constrain constitutional powers, it can constrain powers awarded by lesser legal codes.

    possible example: FISA would still make illegal the use of CIA or NSA surveillence by the IRS to monitor the banking practices of international firms w/o a warrant…unless the President could demonstrate that such intelligence sharing was necessary for International Security (such as the need to comprehend the full picture of how a state-side business may be collecting and moving money to international terrorists).

  35. I don’t think we really disagree. The president “should” have been monitoring international calls from terrorists prior to 911 but unfortunately the government since passage of the FISA law in 1978 had been slowly tying its own hands.

  36. MF:

    The President is bound only by the Constitution, as are all Americans.  The Constitution make explicit that, thus, all Americans are bound by the laws passed by Congress.  The Constitution also makes explicit that no un-constitutional law shall be passed or enforced.  There is no sole arbiter of constitutionality, except when such a dispute is settled by the Supreme Court.  Until then, the President can fail to enforce any law at all if he alone deems it unconstitutional, until the Supreme Court tells him otherwise.

    So, to help Jeff out (if I may be so bold), I think the “bright lines” you seek are Article II and the Supreme Court.  But, you know, that’s just nonsense.

  37. My grammer suks tonit.

  38. Responding to the thoughts of Pablo:

    And if we think he’s overstepping his bounds we can 1) Agitate for impeachment and 2) fail to re-elect him.  That’s why we have an elected Executive. We hope he’ll make the tough calls and get it right.

    and noah:

    If his judgment is poor, he faces impeachment.

    who echo my anticipation of their argument from an earlier comment:

    Jeff would probably argue that the political processes will protect against clear Constitutional or statutory violations; if the President goes to far, he’d argue, he’d be impeached, or defunded, or censured.

    This is a highly unsatisfactory resolution.  First, and most obviously, the details of exactly what Bush has been doing remain secret, and those “in the know” only truly know as much as the Administration has chosen to tell them.  Even Jeff acknowledges as much:

    because the actual details of the program and its targets remain strictly hypothetical, there is no way to say for certain whether the President broke the law

    So these political processes (censure, impeachment, no re-elect, defunding) cannot serve their corrective purpose because no one knows what is going on.  (FISA resolves that issue, ostensibly, because it allows a judge to make sure there’s no funny business.)

    Moreover, the political processes often do not protect people’s fundamental rights.  That’s why the Constitution exists—to protect the individual from the oppression of an impassioned majority. 

    This NSA scandal is a perfect example of this.  People are scared of terrorism.  They are willing to shrug off violations of the rights of “suspected terrorists” quite easily. (See, e.g., Jose Padilla—there wasn’t much of a public outcry in that case, was there?) They can’t imagine that its their calls that are being intercepted, so they don’t care.  There may not be the political will to censure or impeach the President who abuses the surveillance powers.  “So some innocent Muslims in Detroit got wiretapped without a court order.  Big deal.  I don’t want to get blown up.” But it is a big deal to the innocent people who got wrongly wiretapped.  That’s their rights.  And that’s why there’s a law and a court that exist to prevent such things from happening. 

    And that’s why it’s unacceptable to simply allow the President to decide how and when he’s going to follow the law and expect that the political processes will clean up any abuses.

  39. MF, secret things are always secret by definition until revealed. Bush briefed selected members of Congress but that does not satify you. Apparently Bush should publish all national security info for you and our enemies to scrutinize. If he did that he should be impeached. The secret of the Venona intercepts was kept for decades…was that wrong?

    Have you read my posts upthread? Three judges who sat on the FISA court agree that the FISA law cannot contrain a President’s article II powers. I think its game over for your argument.

  40. First, and most obviously, the details of exactly what Bush has been doing remain secret, and those “in the know” only truly know as much as the Administration has chosen to tell them…

    …So these political processes (censure, impeachment, no re-elect, defunding) cannot serve their corrective purpose because no one knows what is going on.  (FISA resolves that issue, ostensibly, because it allows a judge to make sure there’s no funny business.)

    So the judge is fucking psychic?  How does he know more than he is told?

    And that’s why it’s unacceptable to simply allow the President to decide how and when he’s going to follow the law and expect that the political processes will clean up any abuses.

    What the hell are you talking about?  Are your psychic judges going to pre-emptively impeach him for thinking about breaking the law?  Have you completely lost your mind?

  41. Some Guy in Chicago:

    possible example: FISA would still make illegal the use of CIA or NSA surveillence by the IRS to monitor the banking practices of international firms w/o a warrant…unless the President could demonstrate that such intelligence sharing was necessary for International Security

    Demonstrate to whom?  This is whole damn problem: the President doesn’t haven’t demonstrate jack to anybody.  The effect of the Administration’s decision to (Jeff’s term) “ignore” FISA is that they don’t have to demonstrate to any judge that the surveillance is necessary to national security. 

    And, again, the use of the term “international threats” is somewhat misleading as applied to this NSA issue.  Although this point has been made before, it bears repeating: There would be no controversy if the only communications intercepted were from foreign sources.  The issue is that, at the very least, calls to and from the United States have been intercepted.  We’re talking about the privacy rights of Americans in America under FISA and the 4th Amendment.  This is not some nebulous issue involving the President’s power to protect from foreign invasion.  This is about the President’s power to tap Americans’ phone calls without a warrant.

  42. Also MF since you are a constitutional absolutist where in the constitution does it say that the President’s contitutional duty to protect the nation is subject to supervision by the courts? We survived quite nicely for over 2 centuries without such oversight. FDR decided all on his own to montitor ALL communication with other nations during WW2. But he was an asshole.

  43. If the Pres can act unilaterally when an application is denied, what is point of FISA at all?  What good is requiring a court order in the first place if the President can act unilaterally when one is denied?

    To the extent FISA has any real merit, it purports to prevent the President from using random wiretaps to support criminal prosecutions within the U.S. The real point is (a) Congressional grandstanding (LOOK! WE DID SOMETHING!) and (b) one of the periodic attempts by one branch or the other to usurp another’s prerogatives.

    If there is, anywhere in your presentation regarding this “controversy”, a whiff of the concepts of criminal law and criminal justice, the entire essay is null and void because have just demonstrated that you don’t know what you’re talking about. The NSA doesn’t do that. It is not a law enforcement agency and has no law enforcement powers.

    I know it’s hard. The concept of criminal law and “rights” emanating from the precepts of it is so ingrained that it’s seemingly impossible for many people to get over it. As a rule, when I make that comment I get replies that suggest problems and hypotheticals relating to criminal prosecutions—people just draw a blank at anything else.

    What the Hell does a cite have to do with it, actus? Anybody can call the Feds and suggest that so-and-so might be a wrongdoer. The subsequent investigation may or may not uncover punishable wrongdoing—but it will conform to the strictures of the criminal justice system or any indictments fail, and the initial complaint, whether from John Q. Citizen or the National Security Agency, has no legal standing as either proof or indictment. The absolute most that any NSA “intercept” would ever be used for relating to any criminal prosecution would be a note from NSA’s chief to the FBI’s, saying, in effect, “you might want to take a look at this guy.” No “evidence” included, only a suggestion that the regularly consitituted law enforcement channels might profitably look for some.

    NSA isn’t going to prosecute anybody, and NSA’s products are inherently unsuitable as evidence for any prosecution because NSA is a secret agency and doesn’t publicize its methods. There is no way in Hell you’re ever going to get a clean chain of evidence out of anything NSA does.

    If a law enforcement agency—FBI, CIA, ABCDGoldfish—wants to listen to conversations between foreigners and Americans in order to build a case for prosecution, FISA applies in full force. In that case, the 45-day delay time is useful because the conversation may come up too quickly to apply beforehand, and the convenience of having people tied to a copper wire to converse is dead, Jim. So far as their statements run at present, the position of the Administration is that in those cases they have fully complied with the law—as they must if they hope to prosecute the evildoers.

    The whole business is children bawling because they didn’t get what they wanted for Fitzmas. It’s childish, stupid, and counterproductive. Check the punchline.

    Regards,

    Ric

  44. noah:

    Three judges who sat on the FISA court agree that the FISA law cannot contrain a President’s article II powers. I think its game over for your argument.

    Assuming this is what the judges said…I’ve only got that snippet on NRO to go by.  Until I see the entire transcript, I’m not going to try to divine what the judges did or didn’t say from a few carefully chosen paragraphs by a devoted administration supporter. 

    Additionally, your argument assumes that the President’s Article II powers extend to warrantless surveillance of Americans in America in (potential) violation of the Fourth Amendment, and when there is a(n otherwise valid) statute directly on point regulating the (allegedly Article II-based) practice.

    So, no, I don’t think anything’s settled yet.

  45. And as someone remarked months ago on this very topic of the President’s powers: “That is why we should be very careful about who we elect President”.

  46. MF, as I said if you bothered to read, the video of a three judge panel is available at the C-SPAN website. Go check it out for yourself.

  47. Hell, Dick Cheney would have had to shoot another lawyer….

    Be still my heart.

  48. Maybe you haven’t previously been involved in the internet debate on this topic. Maybe you think you are making an argument so compelling that its force cannot be refuted but trust me your arguments have been heard over and over. The proposition that the President should sit back and allow the enemy to plan attacks in this country with impunity is ludicrous.

  49. B Moe, politely as always, coughs up:

    So the judge is fucking psychic?  How does he know more than he is told?

    He doesn’t.  In our hypo, FISA is applicable, and it’s the law.  The government comes in and says, “Here’s reasons A, B, and C why the guy we want to wiretap is a terrorist agent.” The judge looks at the evidence, and 999 out of a 1000 times, says, “OK—you can tap.” And the government goes out and puts the wiretap in place. 

    Now the judge only knows what the government told him.  But what the government told him is memorialized in a file, kept under seal, so that later on, if there’s an allegation of an improper wiretap, the government can prove that it followed the law.  Of course, government lawyers could go in there and lie their asses off to a federal judge in order to get a wiretap that they wouldn’t get otherwise.  But that’s hard to do; it would threaten a career; it could result in sanctions and contempt; in short, unless you’ve ever gotten stared down by a federal judge, don’t suggest lying to one is easy.  My guess is, it doesn’t happen often.

    Of course, the other option is to not go to the FISA court and to jsut start wiretapping on your own.  In that case, the criminal provisions of the law control and if you’re caught, you’re screwed.

    That’s how FISA prevents funny business.  It’s not hard to understand, is it?

  50. noah:

    This is my last comment for tonight—hopefully I’ll get a chance to watch/read the entire hearing from today. 

    But this, I couldn’t let pass:

    The proposition that the President should sit back and allow the enemy to plan attacks in this country with impunity is ludicrous.

    It is indeed ludicrous, and there is no in the world who is forwarding it. 

    We are forwarding the following series of propositions, though: there is a law; it is facially constitutional and valid; it protects the rights of Americans; it requires court orders prior to government wiretapping inside the US for foreign intelligence purposes; it is not being followed; it is a crime not to follow it; and no one has demonstrated in any marginally convincing way why the law—which allows wiretaps for 72 hours prior to getting a warrant, and requires a minimal probable cause showing by the government, such that only a mere handful out of nearly 20,000 applications have ever been denied—cannot be followed.

    We all want the President to thwart terrorist attacks.  We just think he cannot decide which laws to follow and which laws not to follow when he does so.

  51. Noah:

    But the legal situation does seem incoherent. If FISA cannot constrain the president, then WTF is it for? The answer…more bureacracy and a fig leaf for those concerned about presidential power.

    Well, I think this is a demonstration that law isn’t a computer program.  (Much as I sometime wish it were.) What’s going on with FISA, as with the War Powers Resolution, the internment of the Japanese-Americans in WWII, Wilson’s Espionage Act and the imprisonment of Eugene Debs, Lincoln suspending habeas corpus, and Andrew (spit) Jackson’s treatment of the Indian Nations, is that there is a tension, a conflict, among the various branches of government.  I don’t beleive that any president has accepted the constraints of the War Powers Resolution, on the basis that Congress can’t restrict the President’s powers as Commander in Chief (Wikipedia agrees with me, for what that’s worth), and as we know, every president since FISA was passed has also rejected the notion that it can restrict the president’s power to collect foreign intelligence.

    So we end up with a situation in which Congress asserts a power, the President refuses to submit; then what?

    (MF: ) And that’s why it’s unacceptable to simply allow the President to decide how and when he’s going to follow the law and expect that the political processes will clean up any abuses.

    Contrary to what MF would have you believe, this isn’t “unacceptable” — since clearly it’s been accepted on numerous occasions — and it’s not unprecedented.

    It’s just one of those places where a question plays out in political processes instead of legal ones.

  52. Like I said you are not presenting anything I have not heard before. Today we have new info to chew over: former FISA court judges proferring their opinion as whether a statute FISA can constrain the President’s duty to protect the nation. They said it could not. Which is a pretty common sense notion…that you cannot amend the constitution by statute. All presidents since the passage of FISA have alledgedly said that it could not tie their hands. Unfortunately a body of practice developed that did constrain our ability to monitor our enemies. Hence 911.

  53. to Noah, who said:

    I don’t think we really disagree. The president “should” have been monitoring international calls from terrorists prior to 911 but unfortunately the government since passage of the FISA law in 1978 had been slowly tying its own hands.

    I certainly don’t disagree with that.  I was simply trying to construct a case in which FISA would still serve a purpose.  Not ideal, but I was in a hurry.

    To M.F., who said:

    Demonstrate to whom?  This is whole damn problem: the President doesn’t haven’t demonstrate jack to anybody.  The effect of the Administration’s decision to (Jeff’s term) “ignore” FISA is that they don’t have to demonstrate to any judge that the surveillance is necessary to national security. 

    Well, this is where we have to stop discussing Jeff’s narrative (as generally correct as it may be) and note the facts of the program.  As initially reported by the NY Times when the program was revealed, the program was regularly reviewed by administration officials, Congressional Intelligence chairs, and FISA judges. 

    That act of oversight suggests that the administration was not looking to simply “ignore” FISA for whatever reason dreamed up, but that they still expected FISA served some purpose, but that the particular design of FISA did not sqaure with progams deemed necessary to fight the GWoT. 

    This is generally where the Dewine amendment comes up as a “gotcha”…but I’ll simply cut that off before it is raised- the administration felt it had developed a sufficient compromise and saw little reason to go tooling around just for fun. 

    Dealing with the hypothetical of no FISA, the President and the agencies of the government are still checked in a number of different manners by the legislature.  To assume that FISA is all that stands between a beedy-eyed President and the 4th amendment in regards to this issue is absurd.

  54. MF,

    ‘…no one has demonstrated in any marginally convincing way why the law—which allows wiretaps for 72 hours prior to getting a warrant, and requires a minimal probable cause showing by the government, such that only a mere handful out of nearly 20,000 applications have ever been denied—cannot be followed.’

    Now you are being a moron.

    This is not law enforcement.

    This is WAR.

    There is a slight difference between the two.

    Sheesh.

  55. My last comment was directed at MF.

    Don’t worry Charlie, I am in no danger of being convinced of anything by MF.

  56. It’s absolutely astonishing that the hack at the NYT tried to spin the judges’ panel the way he did.

    I suspect that Glenn Greenwald will try and do the same thing.

    The judges totally blew the arguments of the “NSA scandal” crew out of the water.

    If any of them had any shame they’d either apologize for ginning up yet another bogus scandal, or at least stfu and slink away.

  57. I suspect that Glenn Greenwald will try and do the same thing.

    Yeah- is Greenwald going to have time to come down from the mountain where he’s writing his book about how evil the President is and how illegal things like the “wiretap scandal” are to let his faithful readers know that the judges are all Bush Kultists?

    Or should someone from Protein Wisdom pop over there and put their minds at ease?

  58. I see M.F. is back to demonstrating the logical fallacy of “begging the question” for us all.

  59. The judges totally blew the arguments of the “NSA scandal” crew out of the water.

    The only scandal here is the left’s cowardly reaction to sensible safety measures.  If they really support the country and the troops so much, then why are they so afraid to have the government listen to their conversations?  I honestly couldn’t care less if the government is reading my emails.  Truth is, they’d get bored pretty quickly.

  60. Begging the question? Hah. Having delivered ***THE TRVTH*** to the heathen, M.F. retires to the T. Koscinsky Memorial Retreat for Delusional Paranoids to feverishly leaf through the Creed for further material for pontification, “reality-based” in the same sense that the troops in Iraq are “based” in Orlando.

    Meanwhile—

    What we are looking at here is the reason NSA is not a law enforcement agency and the CIA (which is, sort of) is forbidden to operate within the United States. M.F. is correct to disdain the “there’s a war on” argument. It’s irrelevant in this case.

    Foreign intelligence is not evidentiary.

    The rights guaranteed by the Constitution are rights against criminal prosecution. They apply only in the case of criminal prosecution—try to assert your right to remain silent or to avoid self-incrimination in front of the IRS, for instance, or in a child-molestation or divorce case. We have developed a huge base of theory and procedure based on rights in criminal cases; much of it, in my opinion, wrongheaded, but, then, I’m the guy who thinks establishment of civil police in the Robert Peel mold was a fundamental mistake to start with.

    All those rights, all that corpus of theory and procedure, end up with the simple fact that evidence collected in secret is not evidence. The stupidest, most venal local magistrate will throw out a case where the purported evidence cannot be traced back to a clean origin. If there is a thirty-second gap in monitoring of the murder weapon, it might have been substituted (“planted”) and is useless in the case. We have a few stopgaps in place, in the shape of closed proceedings and the like, which in my opinion are worse violations of our rights than anything here, because people can be sent to jail, deprived of life, liberty, and/or the pursuit of happiness in full darkness.

    There is no way in law or justice to have an NSA intercept accepted as evidence, and any judge who does so deserves impeachment if not a firing squad. Because NSA’s methods and procedures are secret there is no way to establish a clean chain of evidence. Recordings? pah. There are a hundred sites on the Internet whose proprietors will cheerfully volunteer to produce a recording of anyone saying anything. If nobody who can testify in court monitors the recording from the time it is made to the time it is presented in court it is useless, non-evidentiary.

    It’s not that people’s rights are being violated, or that anyone is asserting that they don’t exist. Civil rights do not apply in this case; they don’t have anything to do with it, because nobody is going to face imprisonment or deprivation of property on account of conviction in court based on evidence collected by NSA. Civil rights aren’t being violated if nobody is trying to violate them.

    Right to privacy? Don’t I wish. The Tenth Amendment has been a dead letter since the day it was ratified.

    As for M.F.’s touching devotion to the Awful Power of the federal judge, do please recall that dear Willie stood before the Congress assembled, a selection of Supreme Court justices, and the American people as personified by the teevee cameras, and lied through his teeth. People will and do lie to Federal judges, Q.E.D.

    Regards,

    Ric

  61. There was an amusing comment by one judge on the three judge panel to the effect that worldwide communications occur in nanoseconds. Sorry judge but the speed of light still controls!

  62. I can’t believe I am still astonished, but I am.

    The NYT’s seems to be a perilous juncture, they continue to forsake truth for storyline in an age that truth is at the fingertips over every human with a computer an a internet connection. This case there is no refuting, no pesky blogger but a <i>transcript</i>.

    Teaching an old new tricks is hard, but this is a reality they need to face…the days of spinning and shaping the story are over…the days of T.V. news looking to you for the story are over, objective truth is king and if the Times doesn’t jump on soon, the moody is going to get worse.

  63. tsk9…I believe you left a dog out of your post, your offspring who suggested you nom de internet would be disappointed!

  64. B Moe, politely as always, coughs up:

    So the judge is fucking psychic?  How does he know more than he is told?

    He doesn’t.

    Then what does this mean:

    First, and most obviously, the details of exactly what Bush has been doing remain secret, and those “in the know” only truly know as much as the Administration has chosen to tell them…

    …(FISA resolves that issue, ostensibly, because it allows a judge to make sure there’s no funny business.)

    FISA doesn’t resolve anything, it just adds more bureaucracy.

  65. But MF, don’t worry, you won’t be booted for “incivility” which is cause for banishment at Obsidian Wings where basically all dissent from the dominant narrative is uncivil. And Hilzoy is the truth goddess. But ain’t nobody getting any as far as I can tell.

  66. I’m reminded of John Adams who said “Facts are stubborn things–except at the Times.” And Senator Moynihan, who said “”Everyone is entitled to his own opinion but not his own facts. Except Eric Lichtblau, who is entitled to both.” I quote from memory.

    1.) This is ManufacturedNews(tm), actually designed to leave the reader knowing less than when he began reading.

    2.) If the Times had any integrity, they would print a disclaimer before every NSA story ackowledging the ongoing leak investigation and their liability. I said “if”.

    3.) Courts have time and again upheld the president’s position, both pre-and post-FISA. Not that it matters–if it is Constitutional, it is Constitutional whether pre- or post-.

    4.) Why have a FISA in the first place? Because like the Nuclear Freeze “Movement”, it was a Soviet-sponsored attempt to damage America’s national security.

  67. where basically all dissent from the dominant narrative is uncivil

    I’m pretty sure that Jeff remains unbanned, and he dissented rather vigorously.  Rather more civilly than you did, though, which…hey, there may be a clue there.

  68. Fartfast, kiss my ass and your lunatic goddess for her after the fact argumentation and intellectual dishonesty.

  69. I’m having trouble sorting out that request, noah…you’re asking me to kiss hilzoy?  Kinda creepy, that.  If you’re still thinking that it was mere disagreement that got you banned, though, you’re displaying a deep, wide disinterest in reality.

    And when you’re pissing off the Right AND Left wings of OW, you’re probably just being rude.  Just a thought; dunno why I’m bothering.

  70. On second thought: Fartfast – why can’t I come up with zingers of this quality?  You simply must tell me your secret.

  71. “Failure to adjust the personal savings rate of the US is the cause of our current crisis” (loose quote)….I seem to recall that even you thought that was far-fetched. Hey, Hilzoy is an idiot. But you have posting rules. Even idiots cannot be called to account for their idiocy.

  72. Fart away Hilzoy “boy”.

  73. Of course Obsidian Wings does not dare to touch the subject of this post since no doubt Hilzoy has taken the position that Bush is an asshole and is recklessly spying on Americans!

  74. Thanks for the FISA link, Noel.  That’s the first I’ve heard FISA might have been created in part by Soviet agents.  Chalk that up as reason number 53 why it’s time to get read of FISA once and for all.

  75. You go Fart! Good boy!

  76. In case anyone is wondering about the apparent animosity between me and Fartfast, I was banned by Obsidian Wings for objecting to a Hilzoy post which basically accused the administration of deliberately sabotaging our position in the world by running an enormous trade deficit. Observations that we do not control the decisions of others were met with accusations of paid trollery and hysteria. Hilzoy trotted out her theory of administration malfeasance after publishing her original post. Hence the accusation of after the fact argumentation and intellectual dishonesty.

  77. <objecting to a Hilzoy post</i>

    NO!

    liberals don’t ban. Wash your mouth out this instant.

  78. Noah, I didn’t think you were being convinced by MF, I just thought I saw a way to transition to the other thing I wanted to say without writing a thousand words about it.

  79. Noah

    The attorneys fees out-way the truth. Another misguided investment I can’t quite understand.

  80. Um…I’m not a liberal, and I was getting ready to ban him.  We do have rules, and noah was having a very, very hard time understanding them.  Not being able to read and understand English is not an excuse for failing to comply with the rules, so banned he is and banned he will likely remain.  Given what he’s put into print here, we’re better off without him.

    Normally we like to just sit and gaze in awed wonder at our posting rules, but in noah’s case we made an exception.  It’s not because he was being an asshole or anything.

    That parting shot, though, that was downright psychotic.

  81. tsk9: of course liberals do ban. They absolutely cannot stand open disagreement with their horse-shit. Fartfast is superficially a reasonable interlocutor (he he). I suspect he is trying to get some. Somewhere.

  82. LOL…Fastfart…how about quoting the context where after I had announced that I was done with the discussion, all of your “civil” commenters gathered around to trash me? You lying asshole.

  83. I apologize to the thread for bringing up my personal interactions with the loony tune left that pretends rationality,

  84. Consider the upshot of all this consternation.

    The Executive, in a time of war, undertakes a clandestine information gathering scheme, with the intent of better defending the Nation from threats both foreign and domestic.  Out of concern for Constitutional and legal issues the Executive makes certain elements of the other two branches of government privy to this, presumably, ongoing activity.

    For which they are rewarded with leaks of classified details of the activity, blatant yellow journalism, a political firestorm, threats of Congressional censure and even the possibility of impeachment.

    Now ask yourself, the next administration (D, R, or otherwise) that is faced with the apparent need for a clandestine operation that may run afoul of some possibly unconstitutional restrictions on the Executive branch, are they really likely to go the extra mile and try to keep the other branches of government apprised, or will they be more likely to bury the operations well beyond the likelihood of any scrutiny?

    When some future historian writes Teh Deklyn and Fal of Teh Amerikkkan Republik I sure hope Russ Fiengold’s name gets at least a dishonorable mention.

  85. ThomasD: you are right of course. MF has been totally absurd. In theory the admin could always have unrevealed secrets, hidden diabolical secret operations. Nobody could make them reveal them. My God who is to stop them and call them to account? Nobody since those operations are SECRET! There is nothing in the constitution to stop them from keeping certain things secret as necessitated by national security.

  86. I don’t think MF was being absurd at all. His very valid concerns (surely you are aware that not all adminstrations are as honorable as this one appears to be – and the likelihood of dishonor rises as our vigilance slackens) could have been easily addressed by engaging him in good faith and making clear the distinction between military intelligence gathering on the one hand and gathering evidence for the purpose of criminal prosecution on the other.

    Instead much aduse was heaped upon his head for asking questions I would hope any citizen in a free society concerned with keeping it free would ask.

  87. That distinction was made, and it went right by MF. The reason for this is that he doesn’t want to believe it. He wants to be right, and he’s wrong.

    MF and his NYT-worshipping buddies spewed a lot of venom on this site regarding the NSA program, and now they have to eat crow.

    That’s why MF got spanked – if you dish it out, you’d better be able to take it – especially when you’re wrong.

  88. MF Sez:

    Of course, the other option is to not go to the FISA court and to jsut start wiretapping on your own.  In that case, the criminal provisions of the law control and if you’re caught, you’re screwed.

    That’s how FISA prevents funny business.  It’s not hard to understand, is it?

    Why do these FISA judges disagree with you? Perhaps they’re a bunch of rubes, along with those that populate the Administration.

    Is that the problem, M.F.? These FISA judges don’t understand FISA as well as you do?

  89. I wouldn’t hold my breath on the crow-eating. That’s apparently beyond the pathetically limited capacities of the current left we’ve been given. That said, I fail to see how it helps matters to fuel their paranoid delusions by denying the validity of the questions themselves.

  90. It’s not that the questions are invalid, Bezuhov. The problem is the inability to accept the correct answers to those questions.

  91. Pablo, Bezuhov, no. The problem is that they do not, will not, and cannot abide by what they claim are their own principles.

    The fundamental problem here is that George Bush is a member of a social group that they despise. Hay-chewing dullards from red states should not be allowed at the levers of power, and anyone who isn’t a member of their in-group counts as a “hay-chewing dullard”. The fixed pole of their policy is that Bush should be removed, preferably in such a way as to make it impossible for anyone not part of the Democratic or RINO establishment of Massachusetts, New York, and/or California to ever assume his position. IOW it is exactly the position I would have had on a black president circa. 1962, and with exactly the same moral basis.

    Bush is doing evil things: this is the postulate, assumed at all times regardless of actual behavior. Since the misbehavior isn’t obvious, it must be concealed, which is itself further villainy. The rest of it is grasping at excuses.

    Regards,

    Ric

  92. Once again Jeff hitches his wagon to Hinderaker.

    And once again, he’s made a fool of himself.

  93. Do tell, Davebo.

    Ric, you never disappoint. Your incisiveness is a big reason I spend so very, very, very much time here.

  94. I find it somewhat amusing that opponents of the NSA semi-domestic elint programs can’t seem to grasp that the Constitution only protects the individual from unreasonable search and seizure if the fruits of that search are to be used for law enforcement purposes.

    If the fruits of the search are used for military purposes, eg preventing or defeating acts of war against the US, then no Constitutional prohibition exists, and the powers of the President are limited only by what the voters are willing to accept at the next election.

    If NSA domestic elint leads us to find Osama Bin Laden working as a sales clerk at a 7-11 in Gary, Indiana, and we send in a black ops team to whack him, I find it hard to believe that the American voter would be outraged.  The ACLU, Harry Reid and Nancy Pelosi would be insane with indignation that we violated his civil rights, of course, but who cares about them?

  95. Perhaps the left would feel better if we called them undocumented wiretaps?

    Ric,

    The left does abide by its only principle: the ends justify the means.  They can say or do anything as long as it advances the cause.  Truth doesn’t matter; logic doesn’t matter; hypocrisy doesn’t matter; violence doesn’t matter…

  96. Liberals -> Just mad because they’re losing

  97. Yeah, that Hinderaker.

    Lawyer.  Blogs under his own name.  Puts his rep on the line with each post.

    Very much unlike Jeff’s anonymous lefty trolls who drop trou and leave a steaming pile and call that a contribution to the discussion.

    But thanks for not challenging my rapidly hardening preconceptions about the manifold intellectual deficits and rampant dishonesty of leftists, Davebo.

  98. Perhaps the left would feel better if we called them undocumented wiretaps?

    ZING! LOL

  99. undocumented wiretaps?

    BECAUSE OF THE TRIPLICATE!!!

  100. Must be a rough morning for Glenn Greenwald. All he could do is send one of his schtoopider bootlickers, Davebo, over here with absolutely nothing of substance to add and no defense of Greenwald’s argument that has just been shot to pieces by the judges.

    That popping sound you heard this morning was Greenwald’s head after his editor called and told him his book on Bush’s illegal junta had to be entirely rewritten. Or just, you know, abandoned.

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