From the New York Times, “Defense Lawyers in Terror Cases Plan Challenges Over Spy Efforts”:
Defense lawyers in some of the country’s biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.
The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out.
The expected legal challenges, in cases from Florida, Ohio, Oregon and Virginia, add another dimension to the growing controversy over the agency’s domestic surveillance program and could jeopardize some of the Bush administration’s most important courtroom victories in terror cases, legal analysts say.
The question of whether the N.S.A. program was used in criminal prosecutions and whether it improperly influenced them raises “fascinating and difficult questions,” said Carl W. Tobias, a law professor at the University of Richmond who has studied terrorism prosecutions.
“It seems to me that it would be relevant to a person’s case,” Professor Tobias said. “I would expect the government to say that it is highly sensitive material, but we have legal mechanisms to balance the national security needs with the rights of defendants. I think judges are very conscientious about trying to sort out these issues and balance civil liberties and national security.”
[…] At the same time, defense lawyers in terrorism cases around the country say they are preparing letters and legal briefs to challenge the N.S.A. program on behalf of their clients, many of them American citizens, and to find out more about how it might have been used. They acknowledge legal hurdles, including the fact that many defendants waived some rights to appeal as part of their plea deals.
Government officials, in defending the value of the security agency’s surveillance program, have said in interviews that it played a critical part in at least two cases that led to the convictions of Qaeda associates, Iyman Faris of Ohio, who admitted taking part in a failed plot to bring down the Brooklyn Bridge, and Mohammed Junaid Babar of Queens, who was implicated in a failed plot to bomb British targets.
David B. Smith, a lawyer for Mr. Faris, said he planned to file a motion in part to determine whether information about the surveillance program should have been turned over. Lawyers said they were also considering a civil case against the president, saying that Mr. Faris was the target of an illegal wiretap ordered by Mr. Bush. A lawyer for Mr. Babar declined to comment.
In the case of criminal prosecutions of the kind that will soon to be thrown into the crucible of manufactured “controversy” (thanks to the New York Times leaking of highly classified information), the warrant process and its attendant factual revelations—which together assemble the kind of evidence permissible in a criminal proceeding—would have already been vetted by defense attorneys. The only remaining question would be how did the accused come to be the target of warrants in the first place?—a question that brings us back to the legality of NSA captures of foreign intel. And that question, if decided against the administration, introduces the “fruit of the poisonous tree” argument, which will be the staple of defense attorneys for those accused or convicted.
As Bush has noted on several occasions since the Times leaked the story, however, the information was gleaned legally and within the scope of FISA exemptions. Beyond that, we don’t know the particulars as pertained to individual US targets.
Legally, these arguments are dubious. Politically, this entire story is turning into a remarkable gaffe by the newly-minted “civil libertarians” on the left. The imminent threat posed by al Qaeda cells within the US requires the kind of bold action the President has taken, asserting his consitutional authority and his AUMF authority, granted by Congress, as a controlling constraint on certain FISA restrictions.
My guess is, defense attorneys will attempt to leverage the government’s refusal to reveal methodology with respect to intercepts as a means of appealing on behalf of their clients—a ploy that could, ultimately, bring these terrorist cases to a legal head that will result in the dissolution of FISA altogether, at least as an attempted legislative check on the President’s war time powers.
In so doing, the rebuke to FISA legislation will reassert executive power, and have the twofold political effect of showing that those who are braying loudest about the President’s illegal actions will appear weak on national security and averse to the separation of powers as set out by the Constitution. That is, that the legislative branch has the power to micromanage the war by undermining executive constitutional authorities.
In fact, Robert Turner, co-founder of the Center for National Security Law at the University of Virginia School of Law, and former counsel to the President’s Intelligence Oversight Board, 1982-84, authors a defense of the program in today’s WSJ that touches on this very point. From “FISA vs. the Constitution”:
In the continuing saga of the surveillance “scandal,” with some congressional Democrats denouncing President Bush as a lawbreaker and even suggesting that impeachment hearings may be in order, it is important to step back and put things in historical context. First of all, the Founding Fathers knew from experience that Congress could not keep secrets. In 1776, Benjamin Franklin and his four colleagues on the Committee of Secret Correspondence unanimously concluded that they could not tell the Continental Congress about covert assistance being provided by France to the American Revolution, because “we find by fatal experience that Congress consists of too many members to keep secrets.”
When the Constitution was being ratified, John Jay–America’s most experienced diplomat and George Washington’s first choice to be secretary of state–wrote in Federalist No. 64 that there would be cases in which “the most useful intelligence” may be obtained if foreign sources could be “relieved from apprehensions of discovery,” and noted there were many “who would rely on the secrecy of the president, but who would not confide in that of the Senate.” He then praised the new Constitution for so distributing foreign-affairs powers that the president would be able “to manage the business of intelligence in such manner as prudence may suggest.”
In 1790, when the first session of the First Congress appropriated money for foreign intercourse, the statute expressly required that the president “account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify.” They made no demand that President Washington share intelligence secrets with them. And in 1818, when a dispute arose over a reported diplomatic mission to South America, the legendary Henry Clay told his House colleagues that if the mission had been provided for from the president’s contingent fund, it would not be “a proper subject for inquiry” by Congress.
For nearly 200 years it was understood by all three branches that intelligence collection–especially in wartime–was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of “executive power” to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947.
Space does not permit a discussion here of the congressional lawbreaking that took place in the wake of the Vietnam War. It is enough to observe that the Constitution is the highest law of the land, and when Congress attempts to usurp powers granted to the president, its members betray their oath of office. In certain cases, such as the War Powers Resolution and the Foreign Intelligence Surveillance Act, it might well have crossed that line.
Keep in mind that while the Carter administration asked Congress to enact the FISA statute in 1978, Attorney General Griffin Bell emphasized that the law “does not take away the power of the president under the Constitution.” And in 1994, when the Clinton administration invited Congress to expand FISA to cover physical as well as electronic searches, the associate attorney general testified: “Our seeking legislation in no way should suggest that we do not believe we have inherent authority” under the Constitution. “We do,” she concluded.
I’m not saying that what the president authorized was unquestionably lawful. The Supreme Court in the 1972 “Keith case” held that a warrant was required for national security wiretaps involving purely domestic targets, but expressly distinguished the case from one involving wiretapping “foreign powers” or their agents in this country. In the 1980 Truong case, the Fourth U.S. Circuit Court of Appeals upheld the warrantless surveillance of a foreign power, its agent or collaborators (including U.S. citizens) when the “primary purpose” of the intercepts was for “foreign intelligence” rather than law enforcement purposes. Every court of appeals that has considered the issue has upheld an inherent presidential power to conduct warrantless foreign intelligence searches; and in 2002 the U.S. Foreign Intelligence Surveillance Court of Review, created by the FISA statute, accepted that “the president does have that authority” and noted “FISA could not encroach on the president’s constitutional power.”
For constitutional purposes, the joint resolution passed with but a single dissenting vote by Congress on Sept. 14, 2001, was the equivalent of a formal declaration of war. The Supreme Court held in 1800 (Bas v. Tingy), and again in 1801 (Talbot v. Seamen), that Congress could formally authorize war by joint resolution without passing a formal declaration of war; and in the post-U.N. Charter era no state has issued a formal declaration of war. Such declarations, in fact, have become as much an anachronism as the power of Congress to issue letters of marque and reprisal (outlawed by treaty in 1856). Formal declarations were historically only required when a state was initiating an aggressive war, which today is unlawful.
Section 1811 of the FISA statute recognizes that during a period of authorized war the president must have some authority to engage in electronic surveillance “without a court order.” The question is whether Congress had the power to limit such authorizations to a 15-day period, which I think highly doubtful. It would be akin to Congress telling the president during wartime that he could attack a particular enemy stronghold for a maximum of 15 days.
America is at war with a dangerous enemy. Since 9/11, the president, our intelligence services and our military forces have done a truly extraordinary job–taking the war to our enemies and keeping them from conducting a single attack within this country (so far). But we are still very much at risk, and those who seek partisan political advantage by portraying efforts to monitor communications between suspected foreign terrorists and (often unknown) Americans as being akin to Nixon’s “enemies lists” are serving neither their party nor their country. The leakers of this sensitive national security activity and their Capitol Hill supporters seem determined to guarantee al Qaeda a secure communications channel into this country so long as they remember to include one sympathetic permanent resident alien not previously identified by NSA or the FBI as a foreign agent on their distribution list.
Ultimately, as the courts have noted, the test is whether the legitimate government interest involved–in this instance, discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives–outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists. And just as those of us who fly on airplanes have accepted intrusive government searches of our luggage and person without the slightest showing of probable cause, those of us who communicate (knowingly or otherwise) with foreign terrorists will have to accept the fact that Uncle Sam may be listening.
Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation’s declared enemies, even when they elect to communicate with people within our country.
As I’ve noted before—and as Turner makes abundantly clear here—FISA was never intended to constrain a President’s war time powers for gathering intelligence. Which is why from the beginning, every “concern” raised by these Times leaks redounds to one simple question: are we at war.
And the answer most certainly is yes—as Congress authorized in a joint resolution on the use of force.
To my mind, there is absolutely no question, then, as to the legality of the warrantless intel gathering—at least to the degree we know about its particulars. And the FISA court itself has held as much, noting that the President has always been assumed to have the inherent authority to authorize such intelligence gathering.
Those who rallied to uncover the Plame “leaker” are now falling back on the “whistle blower” defense as a way to suggest that the leaker in this case need not be uncovered—that is, they are using a clear begging of the question (the President is presumed to have broken the law) to justify a stalwart defense of the leaker(s).
But if we truly are at war—and I believe we are—these leaks are quite serious, and there needs to be consequences for the kind of arrogance borne of political self-righteousness.
****
(h/t Confederate Yankee and Terry Hastings)
I sometimes (OK, all the time) wonder if we’re ever going to stop thinking of the NYT as being anything other than our enemies’ intelligence agency.
If someone will go get the feathers, I’ll start the tar to boiling.
TW: got… nuthin’.
Even the defense lawyers mentioned in the NYT note that their plea deals and questions of standing to challenge the surveillance are among the obstacles that they will face—and most likely be unable to overcome.
This—along with the ridiculous “second guessing by the FISA court” story posted in a prior thread—is the press trying to stick legs on a story without them.
We all knew it was coming, the defense attorney’s equivalant of the “Hail Mary” pass. It muddies the water a bit, but I think we can still see the bottom.
More ado about nothing.
Sloppy reading on my part. I missed this on the first perusal, but this is something that I whole heartedly support. We all need to keep beating this drum. If there are no consequences for this type of action, then this type of behavior will only be encouraged.
“Enlightened One” = “Self-Promotional One.”
Yeah, a big shocker that the Admin. didn’t want the media illegally printing foreign intell info. If only Bush had made up new legal privileges to claim secrecy, a la Clinton, maybe they would have shown more self-restraint.
And I guess Alter knows a lot more about the law than former Assoc. AG John Schmidt, liberal UC law Prof. Cass Sunstein, etc.
And what’s the political impact of the story?
“Which is why from the beginning, every “concern†raised by these Times leaks redounds to one simple question: are we at war?”
This is the question that the Republicans need to push in the faces of people braying words like “illegal” and “lies” and “imperialism”.
The fact is that half the country believes this war is a construction of lies for the profit of the President and his friends – as though it wouldn’t have been more profitable to just play the oil-for-fraud game and outbid the French, Germans, and Russians prior to the war. Their greed has led, I think, to quite a few more deaths than even the Lancet’s discredited 100,000 – because their activities provided the support Hussein needed to stay in power.
It would have been easy to fake WMD’s after the war. It would have been easy to shrug off 9/11 the way we did the Cole and our embassies. What is hard is doing what’s necessary in the face of dishonest and unrelenting political opposition, knowing that a few lies would make everything a lot easier.
Jeff:
Premises:
1) President has unilateral authority to determine which US citizens are linked to Al Qaeda;
2) President has unilateral authority to order that such persons be surveilled without court order;
3) (1) and (2) above are done in secret.
Question:
What checks—outside of the Executive branch —
are there to ensure that President won’t abuse his authority?
Question:
What checksâ€â€outside of the Executive branch—
are there to ensure that President won’t abuse his authority?
Answer: Congressional and Judicial oversight, albeit after the fact. There is no immediate check to ensure that the president doesn’t abuse this authority, but the reason for this authority is to be able to gather intelligence about our enemies without the gathering of said intelligence being broadcasted on the cover of the New York Times. Which well, thanks for nothing dear Grey Lady. The implicit authority was granted to the executive branch when Congress declared war.
Do you think Atta would have kept calling back and forth to specific people in Europe and eslewhere if he knew his phone was tapped? For that matter, do we have to broadcast the names of the people we are investigating, thus rendering any intelligence gathering practically useless?
2) President has unilateral authority to order that such persons be surveilled without court order;
Since the Bush Justice Department has used the AUMF as part of its rationale for the authority (and, according to Orin Kerr, not the inherent powers argument), Congress may rescind the AUMF.
They rescind AUMF and then the statutory exception in FISA allowing for the warrantless monitoring is removed (if I understand the Bush J.D.’s arguments).
Or, they may cut off funding for the program.
I thought we answered this question before?
Anyway, Carter and Clinton alleged the same powers without the need for the force authorization.
And before Bush became president, the executive could unilaterally identify US persons as al-Qaeda operatives (or foreign agents) in order to spy on them. This is not new.
Spy on them, to repeat, for intelligence gathering purposes. None of the information may be used in any criminal proceedings.
All this yelling and screaming about “unchecked powers” is puzzling.
SMG
MF,
Number One is the lie. The rest of the bullshit naturally follows from that lie.
If a telephone number is known to be “dirty” by virtue of its discovery among the lares and penates of a terrorist or supporter of same, and that number is used to call, or receive calls from, another number, that second number needs to be checked—and the characteristics of the cell phone system are such that the only way to check it is to examine the content. It is impossible, even in principle, to issue a warrant for such examination because the data required for a warrant are not available; not difficult to access, they simply do not exist. The President claims the right to examine such calls to determine if the new number is or isn’t suspicious.
Blowing it up into more than that is stupid and irresponsible.
Regards,
Ric
I wonder what Walid Phares is going to have to say about this turn. Forcing the Terror War back into the courts has always been the main objective for the Fifth Column in the US.
Can you imagine fighting a war where every prisoner of war could tie up immense resources with motions in a civil court?
No sane person can imagine that. But the complete nuts suffering from BDS are able to not merely contemplate such complete lunacy but force the rest of us to live in their asylum.
Steve:
I think your understanding is incorrect. Not your fault, as they have been throwing out every legal theory and the kitchen sink, but here’s the crux of the argument in the article quoted above:
“Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant.”
That’s pretty clear, right? No AUMF needed. If it’s the collection of “foreign intelligence”—i.e., Al Qaeda-related intelligence—the President has always had “independent power” to do it “without a warrant.”
Now, I submit that the above argument is dead wrong; that it cannot possibly be an accurate statement of the law; and that no court has had occasion to ratify Executive surveillance of American citizens without a warrant [and, depending on your opinion, in violation of a duly enacted criminal statute]; and that to say that all courts agree with this view is disingenuous at best and a lie at worst.
But the argument is right there for all to see, and it doesn’t truly rely on the AUMF.
Yeah, but I found then, as now, that your answer was unsatisfactory. First, if Congress has the power to prevent the Executive from doing something by simply not funding it, then surely it has the power to prevent the Executive from doing something via alternative means, e.g., criminalizing the conduct. Second, the whole point of this program was that it was secret! If Bush had his way, Congress—beyond those 8 persons sworn to secrecy—would never have found out about it. Hard to imagine how it could have dried up funding for a program that didn’t technically exist.
This talking point is unavailing, because (a) all Presidents are going to declare that there powers are at a maximum, even if their legal arguments are meritless; (b) neither Carter nor Clinton authorized domestic surveillance outside of FISA (in fact, their directives required adherence to FISA, including various certification procedures that allowed for warrantless taps); and (c) there is no legal authority that I know of that backs up your second sentence above.
This seems irrelevant to the abuse-of-power hypothetical. Surely you would agree that there are ways to abuse electronic surveillance that do not result—or, really, have anything to do with—criminal prosecution, right?
“Unchecked power” to a Democrat is when a Republican holds office.
MF:
I think the explanation above from Mr. Turner is not what the White House is arguing (at least recently).
Kerr noted (I’m sure you saw it) that the letter sent by Justice referred to the AUMF and the statutory exemption in FISA. They didn’t argue, if I read Kerr correctly, the inherent powers doctrine.
I.e., FISA has a statutory exemption, AUMF is the statutory exemption, therefore the President has the authority.
neither Carter nor Clinton authorized domestic surveillance outside of FISA (in fact, their directives required adherence to FISA, including various certification procedures that allowed for warrantless taps);
Clinton authorized domestic surveillance outside of FISA in the Aldrich Ames case. Admittedly, for example, as the Yiddish saying goes, is not proof, but it’s the best I can come up with on short notice.
Oy.
Third, re the funding. I think it was Jackson in the Steel Seizure case who pointed out (paraphrasing) that only the President can command the Army and Navy but that only Congress can make it possible for the President to have an Army and Navy.
If the President is misusing those forces (i.e., NSA), Congress simply takes the NSA away from him.
Re the 8 members of Congress. I’m sure that there are lots of secret programs that have very limited disclosure (the Venona program was only known to a small handful of officials).
Look, I’m not jumping up and down in glee over this action. I understand the inherent (speaking of inherent) dangers of allowing the president (any one) to have this authority. I’d like more checks to ensure that it’s not abused.
But I’m viewing the President as Commander-in-Chief during war. As such, I’m willing to grant him a little more leeway than if he was acting as Chief Law Enforcement Officer during peace times.
SMG
MF,
(1) Since the President has unilateral authority to determine that a particular location is under the control of hostiles
(2) Since the president has unilateral authority to order military attacks on hostile forces
(3) Since such attacks can be made in secret
what checks and balances exist on the President’s power there?
Correction:
The Ames search by the Clinton Administration was a warrantless physical search and not an electronic one.
So, it’s a bad analogy on my part.
However, the Clinton Administration, as I understand it, argued that the president had the inherent authority to conduct warrantless searches – physical and electronic – for intelligence gathering.
But they only, as far as we know (well, I know), they only conducted physical warrantless searches.
And really, I’m wayy out of my league discussing this stuff. We all know that simply reading parts of statutes can lead to gross misunderstanding of what the law permits or proscribes.
SMG
It looks more and more like the NYTimes-MSM/Democratic Party/left-wing partisan axis believes that Americans have NO right to defend themselves against the Islamists who’ve declared war on the US and infidels.
In Bill Clinton’s and John Kerry’s world it was a law enforcement and intelligence problem. Now we observe conscious efforts to undermine intelligence gathering.
This is not an issue of civil liberties or civil rights, these are terrorists collaborating for the purpose of bringing destruction to America.
In order to perpetuate the charade that the US is not at war with Islamists, the left insists that any charges or convictions are merely trumped up falsifications obtained by trampling constitutional rights, while at the same time insisting that said foreign enemies and/or foreign agents/spies are entitled to constitutional protections. Such folks are not merely anti-American, they’ve joined the enemy by asserting rights heretofore never been granted to such enemies so as to disrupt the US war effort.
Question their patriotism? Hardly, they’re emphaticly rooting for the enemy–they’re part of Michael Moore’s patriotic minutemen. They’re just not US patriots.
But it is a good discussion because it causes these folks to self-identify their allegiance.
I wonder if the reason actus hasn’t spoken on this is he’s too busy working on a challenge. If I’ve got the right guy, he’s the only commenter I know (my apologies if I’ve overlooked someone) who has some experience representing one of these guys.
Tuesday, April 13, 2004
Ok so nobody reads this blog but i’ll post an update for myself. This summer I’ll be doing human rights litigation with The World Organization Against Torture:USA. I’ll be doing asylum work, some Alien Tort Claims Act stuff, and working to get Habeas Corpus for this enemy combatant. I got a grant from the school to subsidize this work. Yay. Thanks J.B. and Maurice C. Shapiro.
From Turner’s article,
Those in the democrat/MSM coalition who stoop to the basest political partisanship and will stop at nothing in a time of war in their Ahab like derangement for this administration, should stop and remember that our enemies are not here trying to gather intelligence for economic gain or even military advantage.
The terrorists that we are fighting and their allies within this country have only one cause. That cause is to destroy us. Meanwhile the democrat/MSM coalition are doing everything within their power to thwart their own country in time of war.
Fortunately, most Americans see this sad farce for what it is. I only hope that come November 2006, the disgust many feel is translated into votes.
Its a cool..
Excellent post! And good comments too.
It’s been frustrating to watch the Democrats and it just seems to get worse. They will stop at nothing to get their power back, even if it hurts our national security and military. Unbelievable.
Steve:
Thanks for the thoughtful responses and the unsolicited correction.
As far as the AUMF issue goes, I think you’re right—the administration is, to some degree, relying on that as the “other” statutory authorization for domestic surveillance. They have to, because the Article II argument is exceedingly weak. That much is clear from the DOJ memo to the Senate that was publicized a few days ago.
My response is that that AUMF legal argument, while “colorable,” is, as I put it in a previous comment, truly meritless. (Prof. Kerr agrees with me on that point; Prof. Sunstein does not as of today, but I think you’ll see Sunstein shift his position over the next weeks and months on this specific statutory issue.) “Colorable” implies that you could walk into court and make this argument without getting reprimanded by a judge—i.e., it’s not clearly frivolous—but “colorable” doesn’t mean “correct” or “ultimately successful.” I just think there are too many factors—from basic rules of statutory interpretation to the legislative history of both the AUMF and FISA—that make it abundantly clear that the AUMF by its terms does not, and was not intended, to to provide an exception to FISA.
If you’re not convinced, I can elaborate, but the arguments are clear and out there in the blogosphere and in previous comment threads on this site.
And as far as the Clinton Administration’s actions go, I’ll make just some quick points. One, the warrantless physical search of Ames’ home was, at the time it was conducted, not covered by FISA. In subsequent Congressional hearings spawned by that incident, Clinton appointees argued that the President should, and did, have inherent authority to conduct such warrantless searches for “foreign intelligence” purposes. Congress clearly didn’t buy that argument, but it did agree that the President should be able to conduct those types of searches. So it amended FISA to allow them so long as certain procedures were followed.
Again, no one is arguing that the President shouldn’t be spying on American citizens with links to Al Qaeda. We’re just arguing that he can’t do it outside of the established legal framework under FISA or a future amended version of FISA. The potential for abuse it too great.
“Legally, these arguments are dubious.”
No need to worry then.
MF, again you refer to “basic rules of statutory construction” and yet ignore Federal appellate cases that reject your “basic rules” with respect to AUMF and other administration acts under it.
It is your argument that is losing “color”.
its cool
its a cool thanx
They will stop at nothing to get their power back, even if it hurts our national security and military.
Thanks, excellent..
thank you