Glenn Greenwald has authored another long post arguing that Bush broke the law in authorizing the NSA warrantless surveillance program:
(1) There is not a single bit of authority in any [the Hinderaker / DoJ arguments] for the absurd and dangerous proposition that the President has the right to violate a criminal law passed by Congress. Period. The Administration is trotting out lawyers to make legalistic arguments designed to cloud this extremely clear issue, but none of that can change the fact that Bush defenders are arguing that he has the right to enage in conduct which Congress made it a crime to engage in, and there is nothing in the law which gives a President that right. To the contrary, as one would expect, it has been repeatedly made clear that under our system of Government, the President does not possess the authoritarian right to engage in behavior which Congress expressly prohibits under the law.
Bush defenders are primarily relying upon cases which said that the Executive has authority inherently under the Constitution to order warrantless eavesdropping on Americans. But that is not the issue, and they have to know that. The issue is not whether the President has this authority to eavesdrop without a warrant but whether it is legal for him to do so in the face of a Congressional law which makes it a crime to engage in such conduct. And none of the authorities they cite conclude that the President has such a royal power. Not one.
Marty Lederman has a superb and crystal clear post on precisely this issue. Even if one assumes to be true the dubious proposition that the President possesses inherent constitutional authority to order warrantless surveillance on American citizens, that does not mean that it is legal for him to do so in violation of a criminal statute enacted by Congress. But that is what Bush did here, and there is just nothing which even arguably gives that behavior the color of legality. That’s because we live under the rule of law where not even Presidents are bestowed with the right to engage in conduct which Congressional criminal law expressly prohibits.
(2) The Supreme Court has already addressed this issue fully and completely, in the case of Youngstown Co. v. Sawyer, 343 U.S. 579 (1952)—a case that I have yet to hear a single Bush defender even acknowledge. And understandably so, since that case expressly said that the President does not have the right to exercise his “inherent executive authority” in contravention of Congressional law.
Anyone who wants to see just how clear the legal issues really are here—just how plain it is that, as most people likely know intuitively, the President does not have the right to engage in conduct which the Congress prohibits under the criminal law—should read the Supreme Court’s opinion in Youngstown. It is a clear, straightforward, and easy to understand opinion because the Justices evidently realized that they were articulating the basic principles of how the rule of law—rather than Executive lawlessness—is what governs our country and keeps it stable and just. And it literally obliterates every argument head-on which is being advanced now by Bush defenders who are trying to bestow him with the power of law-breaking.
The facts are simple. During the Korean War, American steel workers decided they would go on a nationwide strike, which President Truman believed (accurately) would result in a steel shortage that would seriously impede U.S. national security. To avert that problem, Truman wanted to use the force of the Federal Government to seize the steel factories and use them to continue to produce steel. Truman had previously asked Congress to enact legislation giving him this seizure power, but Congress refused, instead enacting legislation that gave the President some new powers to deal with such problems, but it refused to include the power of seizure.
Unlike George Bush—who simply violates laws in secret that he does not think he should have to comply with—the Truman Administration argued its position in the Federal courts and asked the Supreme Court to rule that he had the “inherent authority” under the Constitution to seize the steel factories despite the fact that the Congress did not want him to do so and thus refused to give him this power.
The Supreme Court said that even though the President may have a claim to some “inherent authority” to seize these factories, once Congress has enacted laws making clear that he cannot do so, the President under our system of Government does not have the right to act outside of the law by violating Congress’ intent. In so ruling, the Court said that the where Congress has the power to legislate in a certain area (as it plainly does with regard to regulating eavesdropping on American citizens), the President is no more permitted to violate that law than anyone else is, even if he claims that doing so is necessary for him to carry out his Executive duties to protect the nation. It really does not get any clearer or more dispositive than this.
I have excerpted the relevant portions of the opinion in the post below, and the rationale of the Court is breathtaking in how applicable it is to the current Presidential law-breaking scandal. It literally takes every argument which is being advanced by the President’s defenders now and rejects them as the by-products of unconstitutional lawlessness which they so plainly are.
The particular excerpts in the post below are highly worth reading, but Justice Jackson’s summary in his Concurring Opinion of the fundamental principle of the rule of law is particularly compelling and important here:
The essence of our free Government is “leave to live by no man’s leave, underneath the law” - to be governed by those impersonal forces which we call law. Our Government [343 U.S. 579, 655] is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law.
No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.
No principle emerges more clearly from the Constitution, all other founding documents, and the Federalist Papers than the principle that the people, through their Congress, make the law and nobody, including the President, is above it or has the right to violate it. Pro-Bush lawyers can write endless justifications from now until he leaves office, and that principle will still, by itself, resolve all of the issues relating to the Bush Administration’s eavesdropping in violation of the criminal law.
(3) As I have noted before, the Supreme Court, in the 1972 case of United States v. United States District Court for the Eastern District of Michigan et al, 407 U.S. 297 (1972), rejected the Nixon Administration’s claim that it had the authority to eavesdrop on American citizens without a warrant in order to investigate dangerous terrorist groups, and concluded that the Fourth Amendment protects American citizens against exactly such intrusions. Bush defenders object that this case involved the Government’s investigation of domestic terrorist groups, not international terrorist groups like Al Qaeda, and they therefore assert that this case is irrelevant to the current scandal, because it involves international, not domestic, terrorist groups.
But that is not how legal reasoning – or basic logic – works. Merely finding a difference between the case which led to a judicial decision and the current situation does not mean that the reasoning of the judicial decision can be ignored. The difference has to be a meaningful one – it has to be a difference that one can show would prevent the reasoning used in the court case from applying to the present situation.
No Bush defender attempts to do that when shooing away this Supreme Court case which held that the Fourth Amendment bars the Federal Government from eavesdropping on the communications of American citizens. “Oh, this is obviously different,” they say, “because here we are talking about international terrorist groups, not domestic ones like were involved there.”
So what? It can hardly be said that these Fourth Amendment proections [sic] disappear because the Government happens to be investigating an international terrorist group rather than a domestic terrorist group. Domestic terrorists can inflict harm to the country as grave as international terrorists can. Timothy McVeigh blew up a federal courthouse and slaughtered hundreds of Americans. The U.S. has a history of facing down dangerous subversive domestic groups. Domestic terrorist groups can do every bit as much damage to the U.S. as international terrorist groups can. Their bombs blow things up just as effectively. And they are arguably more dangerous, not less, because, by definition, they wield the obvious advantage of working from within the country and being able to blend into its population and institutions.
The focus of the Supreme Court’s opinion is on the rights of U.S. citizens to be free of warrantless monitoring and invasion by their Government under the Fourth Amendment. How can it possibly be said that we give up that right just because the Government is investigating a foreign group rather than a domestic group? That makes no sense. The Court held that the crux of the Fourth Amendment is that the Government is barred from eavesdropping on American citizens without prior judicial approval. To breezily wave away that holding of the Supreme Court simply because the Government there was investigating a domestic group rather than an international group—without even pretending to explain why that matters—is intellectual dishonesty of the worst sort.
(4) Yesterday’s Department of Justice Memorandum claims that the President complied with FISA because FISA specifically allows the Government to eavesdrop in contravention of its provisions as long as Congress enacts a new law allowing the Government to do so. And Congress did exactly that, claims the DoJ, when it authorized the Administration to use force in Afghanistan and against Al Qaeda, because that law (“AMUF”)—which everyone quite obviously thought at the time was about whether the U.S. could invade Afghanistan and use military force to stop Al Qaeda, not whether the Government could eavesdrop on American citizens at home in violation of FISA—implicitly (i.e., without any saying or realizing it) allowed the Administration to eavesdrop on American citizens without obtaining the judicial approval required by FISA.
That is not even a serious argument, and the fact that the Administration is touting it shows its contempt for the rule of law. Every fact demonstrates that the Congress did not intend to give authority to the President to violate FISA when enacting that resolution, and did not believe it was doing it.
First, at the same time that the AMUF was enacted, the Patriot Act was also enacted, a primary purpose of which was to liberalize FISA with regard to the use of electronic surveillance. The assumption of liberalizing FISA was obviously that it would be the framework for the Governments’ eavesdropping. If Congress were giving the Administration authority under the AMUF to eavesdrop outside of FISA, nobody would have needed the Patriot Act to liberalize FISA standards.That the Congress bothered to alter FISA standards under the Patriot Act illustrates how insultingly frivolous it is to claim that Congress intended to authorize the President to eavesdrop outside of FISA.
Secondly, it was revealed yesterday that when the AMUF was being drafted, the Administration wanted Congress to grant it the authority to use its war powers inside the U.S., and Congress refused to give that authority. For the Administration to now claim that it had the authority from Congress which Congress actually expressly refused to give it is about as dishonest as it gets. As Justice Frankfurter said in his Concurring Opinion in Youngstown:
It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between President and Congress.
Finally, not a single Senator has said that they discussed at the time that the AMUF was enacted that they were giving the President an exemption from FISA, and scores of Senators have said that this is the opposite of what they understood they were doing when they enacted AMUF. On its face, that law allows the President to use military force against Afghanistan and Al Qaeda, and does not “amend” FISA to allow the President to eavesdrop on American citizens without bothering to comply with it.
(5) Even if the President believes that a particular Congressional law is invalid because it seeks to regulate an area which the President should control, this does not mean that the President is justified in secretly breaking that law because he decided he does not need to abide by it.
If the President really believed that the Executive has full constitutional power in the area of surveillance on American citizens and that Congress has no power, he could have gone to a Federal Court and asked it to declare FISA unconstitutional on the ground that it usurps executive authority, or he could have publicly declared his right to violate FISA – just as Harry Truman did when he wanted to seize the steel factories and thus allowed the federal courts to rule on its legality. Bush did not do that. Instead, he just broke the law, hoped nobody would find out, and even tried to prevent newspapers from reporting it when they did find out.
Constitutional disputes are for the judiciary to resolve, and they resolve these sorts of separation-of-power issue all the time. If the President decides that a law is unconstitutional, the solution is to seek a judicial declaration that this is the case – not to secretly break the law, and then, when he is caught, claim that he was allowed to break the law because it’s not a valid law anyway. That is what criminals do who break the law—they secretly break the law, try not to get caught, get caught, and then hire lawyers to find a way to keep them out of jail. Lawyers then argue that the law is unconstitutional and the defendant therefore can’t be punished even if he broke the law.
Lawyers can find arguments for anything. If a President can secretly violate the law and do so with impunity – as long as he can get some lawyers somewhere to come up with a retroactive legalistic justification in order to give the appearance that there is at least a “legal dispute” over this authority – then the rule of law really does not exist. Lawyers can always create legal disputes, literally with regard to anything.
The self-evident strategy of the Bush defenders is to cloud the extremely clear fact of Bush’s illegal conduct with so many legalistic justifications that people will throw up their hands and decided that this is nothing more than an esoteric lawyer game, not a serious threat to the founding principles of the nation and to the rule of law. But the principle that the President does not have the right to engage in conduct which the Congress prohibits under our criminal laws is one that is as clear as it is critical to our system of government, and it is urgent that this clarity be maintained and the rule of law enforced.
[bolding mine]
I’m going to keep my responses short, again with the caveat that I am not a lawyer and Greenwald is. But I do have some experience with close reading and assessing argument, so I’m not completely out of my depth here I hope.
In the bolded passages above, you’ll notice a pattern that has been consistent throughout all of Glenn’s post—namely, that his arguments always proceed from the conclusion that the law has been broken. Which is why much of his argument is simply an extended and sourced begging of the very question it sets out to answer: was there a law broken?
Glenn characterizes the DoJ’s position as maintaining the President has the right to break a criminal law, which is not, in fact, the DoJ’s position. Instead, in the course of asserting the President’s constitutional authority to protect the nation, the DoJ similarly asserts an exemption under FISA—one that, as I pointed out yesterday and as Glenn dismisses entirely, may in fact be moot, if, as the President says, the surveillance is happening outside the US.
The point being, that we don’t know enough about the program itself to state with any kind of certainty that FISA law (or fourth amendment protections, for that matter) has been violated, and from what we do know from official statements is that the collection of information is happening outside of the US [“when the surveillance occurs outside of the United States, FISA is not applicable, and there is no requirement of prior judicial authorization. In these cases, Executive Order 12,333 is the primary source of regulation”—Duke Law Journal, in an analysis of the Echelon program; much more here.]
Second, Greenwald makes much of Youngstown,and even goes so far as to call it “a case that I have yet to hear a single Bush defender even acknowledge.” But in fact the DoJ memo does acknowledge Youngstown (as did Dale Franks), and in fact cites it in part of its justification:
Communications in intelligence targeted at the enemy is a fundamental incident of the use of military force. Indeed, hroughout history, signals intelligence has formed a critical part of waging war. In the Civil War, each side tapped the telegraph lines of the other. In the World Wars, the United States intercepted telegrams into and out of the country. The AUMF cannot be read to exclude this ong-recognized and essential authority to conduct communications intelligence targeted at the enemy. We cannot fight a war blind. Because communications intelligence activities constitute, to use the language of Hamdi, a fundamental incident of waging war, the AUMF clearly und unmistakably authorizes such activities directed against the communications of our enemy. Accordingly, the President’s “authority is at its maximum.” Youngsrown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,635 (1952) (Jackson, J., concurring); see Dames & Moore v. Regan, 453 U.S. 654, 668 (1981); cf: Youngstown 343W UI.IS,. at 585 (noting the absence of a statute “from which [the asserted authority] c[ould] be fairly implied”).
Greenwald’s argument seems to be that, because Daschle and other lawmakers purportedly refused to give the President explicit authority to use force in the US, the gathering of signal intelligence of US citizens undermines an important aspect of the DoJ argument—namely, that the FISA exemption they cite, which allows for the AUMF statute to trigger the FISA exemption, is not valid under the given circumstances. Writes Greenwald: “For the Administration to now claim that it had the authority from Congress which Congress actually expressly refused to give it is about as dishonest as it gets.”
Here’s the relevant bit of the WaPo piece Glenn references:
Daschle’s article reveals an important new episode in the resolution’s legislative history.
As drafted, and as finally passed, the resolution authorized the president “to use all necessary and appropriate force against those nations, organizations or persons” who “planned, authorized, committed or aided” the Sept. 11 attacks.
“Literally minutes before the Senate cast its vote, the administration sought to add the words ‘in the United States and’ after ‘appropriate force’ in the agreed-upon text,” Daschle wrote. “This last-minute change would have given the president broad authority to exercise expansive powers not just overseas—where we all understood he wanted authority to act—but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.”
Setting aside Daschle’s preening new-found civil libertarianism, look at what the omission does: it simply makes the President responsible for moving signal intel outside of the US to avoid running afoul of FISA.
Now look again at how the NSA is describing the program, and couple that with Bush’s revelation that the aquiring of the surveillance is happening extraterritorily:
[…] officials who have been granted anonymity in describing the program because it is classified say the agency’s recent domestic eavesdropping is focused on a limited group of people. 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.
Nobody is seriously disputing the President’s authority to gather foreign signal intel. And those being contacted by Al Qaeda can of course assert no reasonable expectation of privacy, nor is a warrantless surveillance of such persons “unreasonable”. And the AUMF is not a law. It is a resolution that gives the President expansive powers to fight the war as he deems necessary, without having to run everything he does by the Congress. That the administration is able to offer a cogent legal case for its actions makes the criticism of those actions under the circumstances even more dubious. Do Democrats really want to be on the record as saying they tried expressly to refuse to give the President legal authority to defend the US at home after attacks hit the homeland, and were perpetrated by those operating from within the US?
Finally, Greenwald seem flummoxed at how “Bush defenders” can be so dismissive of United States v. United States District Court for the Eastern District of Michigan et al, which held that Nixon can’t wiretap without a warrant domestic terrorists. Writes Greenwald:
Merely finding a difference between the case which led to a judicial decision and the current situation does not mean that the reasoning of the judicial decision can be ignored. The difference has to be a meaningful one – it has to be a difference that one can show would prevent the reasoning used in the court case from applying to the present situation.
No Bush defender attempts to do that when shooing away this Supreme Court case which held that the Fourth Amendment bars the Federal Government from eavesdropping on the communications of American citizens. “Oh, this is obviously different,†they say, “because here we are talking about international terrorist groups, not domestic ones like were involved there.â€Â
So what? It can hardly be said that these Fourth Amendment proections [sic] disappear because the Government happens to be investigating an international terrorist group rather than a domestic terrorist group.
Well, except that members of the “international terrorist group,” after Hamdi, are now “foreign agents.” And foreign agents found through foreign intelligence gathering, one assumes, are now subject to warrantless foreign intelligence surveillance, so long as at least one end of the communication happens outside the US.
And again, look at the FISA definition of electronic surveillance:
“(1) the acquisition … of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes…”
[update: an expansion of this point here]
Again, I am not a lawyer, and I could be way off base on many of these points—so I welcome your corrections. But the bottom line seems to me this: Greenwald, et al, are asserting via Youngstown that FISA, coupled with notes taken from the AUMF authorization deliberation, combine to limit the President’s inherent authority to protect the homeland, that they in effect take away his Article II powers.
I don’t find this argument very convincing—and I suspect SCOTUS would find that the President acted well within the window left open for an assertion of inherent authority in Youngstown—but beyond that, the logistics of the program, from what we know, seem to make many of these arguments moot. Greenwald is arguing for a theoretical application of the program that does not seem, from what we know, to have occurred at all.
And as I’ve been arguing all along, without knowing the specifics of the methodology, or how the program exactly works —on which the DoJ memo notes Congressional leaders were briefed a dozen times—we cannot say that any fourth amendment violations took place. And so we cannot say any laws were broken.
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related: Powerline, on the leaks themselves (h/t Boss429); see also, Leon H
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update: Some advice: if the extent of your criticism of my position is summed up thusly
I have seen the Clinton meme all over the Rightsphere, and Jeff Goldstein has went into spin overdrive on justifying the snooping, all under the guise of… “Gee I really don’t know, but I suspect this is much ado about nothing.” Hehe… Truth is, the Clinton thing is just another smokescreen…
…it is probably best just to sit this one out.
Else you risk looking like quite a disingenuous buffoon.
Joe Conason, while accusing “Bush defenders” (like the notorious Bushies Cass Sunstein, Richard Posner, Joe Schmidt, et al) of “leaving out” important information in their analyses, continue themselves to ignore the most important bit of information of all: that US citizens only came to the attention of the NSA by way of the legal warrantless collection of foreign intel; and that consequently, their international communications, following along the chain, could be monitored legally without a warrant. Domestic to domestic communications among those found this way were pursued by way of warrant, according to the Gen Hayden.
Posts like David’s—which make no specific claims while seeking to dismiss honest investigation as partisan defensiveness—is itself the height of partisan defensiveness.
If David wants anyone to take him seriously as a thinker, he might begin by, y’know, actually thinking, instead of sitting back and accusing others of not doing so.
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update 2: TalkLeft has more. Jeralyn seems hung up on why the
Administration didn’t use the 72 hour emergency provision for warrants. Two quick answers: 1) we don’t know that in cases where warrants were necessary this didn’t occur; and 2) following the electronic surveillance description noted above, there would have been no reason even to apply for a warrant to aquire intelligence if one end of the communication was international and the US person was not the target of the surveillance.
See also, firegodlake
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more: see Media Lies, who points out, among other things, that the legislative hitory of FISA makes it clear that “he act was directed at surveillance done by the FBI and other domestic agencies that could potentially lead to the prosecution of a US citizen, not foreign surveillance done by the NSA that captures a US citizen in its net.”
Jeff, you may not be a lawyer but I am. And I can tell you that you do a fine job of rebuting this pompous twit.
But more interesting is that he pretends to be rebuting the administration’s arguments but he subtly misstates the administration’s arguments repeatedly to make what are nearly strawmen for him to beat.
Greenwald’s piece is dishonest.
I thought this was the Friday armadillo post.
Apparently the little guy has been too busy digging through the briefs.
Key passage:
If this issue is “clear” then Greenwald is the second coming of John Marshall. Let’s back up a bit to something that has bugged me (yikes…sorry for the pun).
If an Al Qaeda person of interest residing outside the US instigates regular contact with an American citizen and those communications are caught in the net, does the President have warrantless search authority? It seems to me that the resounding answer is “Yes.”
Now, let’s flip the scenario–American to AQ…are we in murky water or no? Is this still collection of foreign intelligence?
Like Jeff, I’m not a lawyer, so whatever precedents exist, I’d be happy to hear.
P.S.: Can we please hear something from the Democratic Senators briefed on this program other than extremely awkward silence? When Tom Daschle is wearing an emeritus hat as the water carrier, the message must be kinda thin…but that of course is,
.
While the president is certainly not above laws enacted by congress, it is also perfectly clear that congress can not enact laws encroaching on the president’s Article II powers.
How is government seizure of steel mills equitable with this situation? That was an entirely domestic situation (with an impact on national security). Sure – go to the courts. It is already public knowledge that the workers are striking and that has an impact on production.
Taking this to court for some kind of pre-emptive blessing would make it even more public than it is now. I’m assuming they would have had to divulge even more detail than we now know. What then would be the point? That argument is insane on its face. Asking Congress to make changes to FISA would have blown it just as quickly.
And I think you are spot on pointing out that everything he wrote assumes a law has been broken. The entire mission of the NSA is to monitor international communications to cull intelligence. Now I do think it gets trickier when the bad guy in Pakistan calls citizen A in NY, who then calls citizen B in LA. You obviously want the conversation between A and B and whoever else A talks to. That is where the 72 hour retroactive warrant comes in though.
He pretty clearly wants to extend 4th Amendment protections to the entire world.
Greenwald’s meal ticket?
Hale’s former attorney Glenn Greenwald
It was buried in my link. Sorry.
1) There is not a single bit of authority in any [the Hinderaker / DoJ arguments] for the absurd and dangerous proposition that the President has the right to violate a criminal law passed by Congress. Period
Um, there is not a single bit of evidence the President intended, directed, or broke the law.
Which makes this simpleton’s hysterical screed completely absurd.
Only someone making an argument based on a false premise, as Jeff notes, would ignore the 4 relevant court cases and invoke Youngstown.
Gee, wonder why he did that?
OT but related. This morning Powerline had a post dealing with laws broken by the leaks and applicable punishents. http://powerlineblog.com/archives/012635.php
After reading their post, I’m left wondering if the Times and it’s employees can be charged with the same violations at those who leaked the info? Assuming the information was still classified when they published the story, wouldn’t the publication be considered distributing classified information?
Bingo.
I’ll add, that at this point we should all be thanking idiots like Greenwald for trying to keep this issue alive.
The more people in this nation hear about how Bush has acted to thwart attacks, the better for the administration, and the better for the war against the islamo-fascists. This is a losing issue for them. Let’s hope the dems continue to listen to the Greenwalds of the world.
(Of course, it would be optimal for the nation if the democrats could become a serious party and an ally with the republicans in this battle, but since that seems unlikely to happen in the near future, it’s best that their noses get rubbed in the crap that they’ve been spewing continuously since 2002.)
This doesn’t go far enough to distinguish (and thus dismiss) the “Keith” case. Al Qaeda has been described by government officials as a multi-celled, dispersed “hydra” with no discernable decision-making hierarchy whose members share only a specific set of radical beliefs and tactics. Given this, how is an independent Al Qaeda cell composed of U.S. citizens operating in the U.S. any different from the “domestic terrorist group” in Keith that was granted 4th Amendment protections against the President’s asserted Article II authority to gather “foreign intelligence” without a warrant?
Also, certainly, the President cannot, in his own discretion only, determine that a U.S. citizen is an agent of Al Qaeda, and then strip that person of his 4th Amendment right that he not be spied upon without a warrant, can he?
This doesn’t go far enough to distinguish (and thus dismiss) the “Keith†case. Al Qaeda has been described by government officials as a multi-celled, dispersed “hydra†with no discernable decision-making hierarchy whose members share only a specific set of radical beliefs and tactics. Given this, how is an independent Al Qaeda cell composed of U.S. citizens operating in the U.S. any different from the “domestic terrorist group†in Keith that was granted 4th Amendment protections against the President’s asserted Article II authority to gather “foreign intelligence†without a warrant?
1. An agent of a foreign power is any person who engages in international terrorism or sabatoge.
2. Aides, abets, or collaborates with an agent of a foreign power, or an agent of a foreign power.
3. It is patently absurd to assume or insinuate an AQ cell operating domestically will be comprised only of US citizens.
4. Having a visa and entering the US under false pretenses – e.g. the 9/11 hijackers – makes you an agent of a foreign power and you have no 4th Amendment rights in that scenario.
Ok, but can’t this person also be a U.S. citizen? And, a propos my previous question, does the President have the unilateral authority to make the determination that a U.S. citizen no longer has Constitutional rights because their an agent of a foreign power? If so, what checks are there to prevent him from abusing that authority?
Why? It’s my understanding that the guys who blew up the London tube were born and raised in London and did not necessarily have contact with radical Islamists outside of England. It’s certainly possible, right? And if it’s possible, then how would such a group be treated under your theory?
I’m somewhat more sympathetic to this view—I don’t think non-citizen lawful residents should get as much protection as American citizens. But, again, the President is unilaterally making the Al Qaeda agent determination—are there checks in place to prevent abuses?
Haven’t the three branches of government always squabbled over the boundaries of their respective jurisdictions? In an adversarial system such as ours, it seems like the best approach is for each branch to assert their inherent authorities forcefully so that we will continue to have 3 strong branches of government. It’s no surprise that the congressional branch would use political gamesmanship (threats to impeach, leaks to the press, smears) to stymie the executive’s article 2 powers, but it doesn’t make it less unseemly. I’m glad that Bush is fighting forcefully for the executive and that Congress is fighting back, but given the stakes it would be nice that if Congress truly believes that boundaries have been crossed that they use language and processes that don’t undermine our national security efforts for cheap partisan gain. If the facts our on your side, argue the facts.
MF, it appears from USA v bin Laden that Sands concluded al Qaeda is in itself a “foreign power” under 1801(a).
Consider the Aldrich Ames case as a useful comparison: Ames was a US citizen; however, as soon as he started acting as an agent of the Soviet Union — certainly a “foreign power” under 1801(a)(1) — he would be an “agent of a foreign power” unde 1801(b). The Clinton Administration asserted exactly this, and performed searches without warrants on his house and office; Gorelick asserted the Presidental power under Article II as a justification, and I think you’ll find that Ames is still in prison.
As we know, similar assertions of Presidential prerogative were made starting with Carter, immediately after FISA was passed.
What you’re suggesting is an unprecedented (literally!) restriction on the Article II powers.
Well, we were ostensibly talking about the “Keith” case and the 4th Amendment, so I’m not sure that FISA definitions are applicable. Assuming that they are, however, certainly under FISA (and the Constitution) a person can be both a foreign agent (Al Qaeda) and a U.S. citizen, right? I posed this question earlier. You didn’t answer it directly, but you implied that the President does have the authority to unilaterally declare someone Al Qaeda and then remove their 4th Amendment protections. Do you believe that?
As far as the Clinton/Ames issue goes, it’s my understanding that at the time FISA did not prohibit warrantless physical searches for foreign intellidence purposes. (After that episode, Congress changed to law to cover searches.) As commenter “constitution” noted above, Presidents always assert maximum Constitutional authority; it doesn’t mean they have it. Congress will have to assert itself it it wants to reel Bush in.
And, contra “constitution,” above, there are people on both sides of the aisle making reasonable, non-invective-laced arguments that Bush ought not be allowed to assert such sweeping Presidential power. FISA was passed precisely to prevent abusive domestic spying by the Executive. Although most on this site trust Bush not to be abusive—I’m not sure I do—a successful assertion of this power by him would legitimize this power for future Presidents, who might be abusive. That’s the real issue.
Ok, but can’t this person also be a U.S. citizen? And, a propos my previous question, does the President have the unilateral authority to make the determination that a U.S. citizen no longer has Constitutional rights because their an agent of a foreign power?
1. Yes, it’s possible (under the statute) to be a US citizen and an ‘agent of a foreign power’
2. As to your question, I don’t think the President or anyone here is asserting that authority (though it certainly is possible he could assert it).
3. Per #2, the President has said, as has been reported in the NYT, they are targeting international communications which whether one is a US citizen or not, the 4th Amendment does not apply.
—
Why? It’s my understanding that the guys who blew up the London tube were born and raised in London and did not necessarily have contact with radical Islamists outside of England. It’s certainly possible, right? And if it’s possible, then how would such a group be treated under your theory?
I’d say it’s unlikely given the events of 9/11. Possible yes, but probable, no way.
But if it were the case, depending on the method of gathering the communications it would depend on the 4th Amendment application.
Hayden:
I wasn’t quite as polite to Greenwald as you are Jeff. This incompetent boob is now blinking at the receding tail-lights, wondering what just flattened him. Twice, now.
I pity his clients.
M.F.: From the Joint Resolution Authorizing The Use Of Force Against Terrorists of Sept 14, 2001.
“Whereas the president has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.”
“Section 2. Authorization for Use of United States Armed Forces
(a) That the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” (emph. mine)
It’s not quite as cut and dried as I would like, but it’s certainly the beginning. From this the President himself is the one who will determine who is a member of whatever group found responsible and he is “authorized to use all necessary and appropriate force…in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.†So that answers part of your question. As to the rest of it. No one is asserting that the kind of strictly domestic spying you’ve hypothesized has occured outside the covering of a warrent. No one who knew what they were talking about anyway.
Jeff, well done. Excellent analysis today.
Ace:
Well, I don’t think it’s this clear-cut at all. I agree with Orin Kerr that the 4th Amendment might not apply because of some judicially recognized exception; but it might apply.
Jeff:
Okay, but I’m talking about what your theory would allow, not what Administration spokespersons say they are doing. If the President has inherent authority under Article II to conduct warrantless surveillance of Al Qaeda agents, and the AUMF is the “other” statute that gives him authority to do so outside of FISA, how can it possibly make a difference if those U.S. citizens/Al Qaeda agents are making international or domestic phone calls? The AUMF is clear as crystal: President has authority to go after anyone
supporting Al Qaeda. What difference does it make that they’re U.S. citizens?
FISA makes no distinction between domestic and international calls when a U.S. citizen is involved. We agree on that, right? And, if I take your argument correctly, FISA is unconstitutional and inoperable insofar as it encroaches upon the President’s Article II war powers, as the In re Sealed Case dictum states. So what is your basis for making a distinction between domestic and international calls? What is the limiting principle that dictates that the President has inherent authority to surveil U.S. citizens when they make international calls, but not domestic ones?
Wait a second, the Clinton Administration (Gorelick in 1994 and Schmidt today) never distinguished between warrantless physical searches and warrantless non-physical or electronic searches.
When was this distinction made?
When Gorelick testified during hearing on FISA changes, she argued that the inherent powers of the executive permitted warrantless searches qua warrantless searches. She didn’t qualify as to what type of search could be undertaken.
Schmidt’s piece in the Tribune argued similarly.
SMG
What is the limiting principle that dictates that the President has inherent authority to surveil U.S. citizens when they make international calls, but not domestic ones?
Don’t know for sure but it might be more difficult to surveil domestic communications from OUTSIDE THE COUNTRY !!!
Tried to wrap my head around tLederman’s alien mindset but probably failed unless the following is a fair summary:
Given the litany wrt torture, UCMJ, Gitmo etc. one suspects this result was also Lederman’s starting position. OTOH if the technology used by the NSA is incompatible with FISA, as written, for technical reasons (it’s what? 30 yrs old?) which congress refused to address in the AUMF, then executive order with committee notification seems eminently more reasonable than Lederman’s cute little circular logic construct.
“Even if one assumes to be true the dubious proposition that the President possesses inherent constitutional authority to order warrantless surveillance on American citizens, that does not mean that it is legal for him to do so in violation of a criminal statute enacted by Congress. But that is what Bush did here, and there is just nothing which even arguably gives that behavior the color of legality.”
I was a little confused with Greenwald’s reasoning here (which Jeff highlighted). I’m not a lawyer but if one assumes the President has constitutional authority to order warrantless surveillance, then doesn’t that mean that Congress cannot prevent the President from said surveillance? The Constitution is the supreme law of the land and the only way to change it would be an amendment. As far as I know, Congress cannot limit the powers given to the President by the Constitution through the simple passage of law. Whatever, I’ll leave this one to the lawyers.
Even if one assumes to be true the dubious proposition that the President possesses inherent constitutional authority to order warrantless surveillance on American citizens
Dubious?
Um, it’s not dubius at all.
Well, I don’t think it’s this clear-cut at all. I agree with Orin Kerr that the 4th Amendment might not apply because of some judicially recognized exception; but it might apply.
Please then tell me how the 4th Amendment applies outside the US?
Remember, this is nowhere near the automated all-encompassing collection under Echelon….
Josh:
Actually, this isn’t the case. I’d suggest reading <a href=”http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=343&invol=579″ target=”_blank”>Youngstown</a>, the steel seizure case, as it deals with this issue head-on and is easy to understand for non-lawyers. It’s a good starting point for this whole debate.
Ace:
“The Supreme Court cases on point suggest that the Fourth Amendment applies to United States
citizens abroad.” United States v. Bin Laden, 2000 WL 1858492 (S.D.N.Y. 2000). However, I don’t think that even matters for our purposes. If a U.S. citizen is in their home in the U.S., I’d argue warrantless surveillance is unconstitutional regardless of where the calls are going or coming from, or where the interceptions are taking place (although, where the interceptions are taking place might affect the program’s legality under FISA).
Sorry about the bad link above.
I’ll try <a href=”http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=343&invol=579″ target=”_blank”>again</a>.
oh well. my bad for the repeats. here’s the clean link to c+p, if desired.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=343&invol=579
This entire line of argument misses the point entirely. The courts have distinguished, repeatedly, between surveillance for the purpose of criminal prosecution and surveillance for the purpose of defending the nation against enemies both foreign and domestic.
It seems silly to point out, but so many have missed it – the NSA is a military operation, not a law enforcement agency. As such, they are not only not required to get a warrant to perform surveillance, they are not even required to inform the FISA court. In fact, under certain circumstances, per USSID 18, authorized by President Clinton in 1993, NSA isn’t even required to get the Attorney General’s permission before performing surveillance.
This right has been asserted by every US President since Jimmy Carter, who, just seven months after FISA became Public Law 95-511, signed an order authorizing warrantless surveillance by the NSA.
One last point. US citizens have been convicted of crimes due to warrantless NSA surveillance. All the law requires is that the NSA cannot provide the raw data obtained – only a summary. That summary provides the probable cause which the FBI (or other domestic law enforcement agencies) can use to go before the FISA court and request a warrant.
Only then does a domestic investigation that requires FISA approval and oversight begin.
I wrote about this at great length on my blog – http://www.antimedia.us/posts/1135225834.shtml
The law is quite clear, and the administration is and has been acting lawfully.
M.F.
Nothing in FISA requires a 4th Amendment protection for the instance of targeting foreigners with equiptment installed outside the US.
US citizens abroad has nothing to with this.
Again, in FISA it’s targeting of known US Persons.
Targeting AQ in [insert foreign country here] does not provide for a 4th Amendment warrant.
Charlie, Ames had a clearance. He signed on to warrantless searches if the agency holding his billets deemed it neccessary. No analogy.
Although I am not convinced overall, THIS posting is indeed what I mean by seriously engaging opposition argument.
It makes the issues all the sharper.
Well, that settles it, Jeff. You have the Cloudy seal of approval now.
“Sharper” … now that’s a term I don’t associate with Cloudy.
GG quotes at length from Youngstown Sheet & Tube—a case that he has “yet to hear a single Bush defender even acknowledge.” But GG somehow fails to quote the passage most relevant to the issues here:
In other words, just because the Korean War was happening doesn’t mean seizing private property and settling labor disputes suddenly fell within the CinC power of Art. II
In this case, do you think that maybe—just maybe—that collecting intell on phone numbers found in al Qaeda computers might—just might—be viewed by a court as falling within the CinC power in a way that settling a labor dispute does not? Maybe? And do you think that 9/11 might cause a court to consider just how expanded the “theater of war” is? Maybe?
Jeebus.
I just posted a long, relevant post, but wrongly placed it in a previous thread. Sorry.
First, two links about eavesdropping that goes well beyond the usually cited hypotheticals of known Al Qaeda members and Osama’s ‘black book’ numbers, etc.
Already, I have provided on previous threads, links to articles about the FBI labelling groups like Greenpeace and Raging Grannies ‘terrorist’ and then spying on them extensively since 9/11; also I provided a link to extensive spying by the Pentagon on political groups.
Now we have reports of a similarly wide net of surveillance, going well beyond the scope of presumptions laid in defense of the “legality” of NSA snooping. Of course, they are found in Commie rags like The New York Times and The Boston Globe, so why not wait until they are reliably reported in The Washington Times (the folk who actually leaked the info about Osama’s satellite phone, FYI)?
New York Times article link
Boston Globe article link
Now the question is, after all the protestations about the executive being prevented from spying on al Qaeda (for which not a single example has been adduced, unless I missed it somewhere), is the idea that ‘we are at war’ (I won’t quibble about the definition of “war” as the notion is that we face a perilous “security threat”) mean that we DON’T CARE or RATHER LIKE the idea of Greenpeace being labelled terrorist and spied on, or the systematic mining of ALL international calls originating in the US, or all these things going on under the unilateral authority of the executive branch without any meaningful judicial oversight?
One view is that RWers don’t really care about civil liberties, but only are concerned with the right to own guns, to pollute without regulation, and of course excess government spending on things like health care for the poor. The idea of big government infringing on civil liberties (especially of pinkos) is, in this view which I think has much merit, not a problem at all, but only something used in a bait-and-switch operation to promote “more guns and less butter”.
Well, some at this site have made clear they APPROVE of snooping on Greenpeace or monitoring ALL international calls. Is that the basis of the argument about the “legality” of all this, or is one set of goalposts used to determine legality, and then, once ‘legality’ is presumably “established”, it’s “PLAY BALL” as far as unrestricted snooping by the executive as it pleases, especially if the executive is in the hands of the RW.
Cloudy,
I bit the bullet and read the NYT link. And I’m amazed that you make the giant leap to “unrestricted snooping”.
The article:
Officials in the government and the telecommunications industry who have knowledge of parts of the program say the N.S.A. has sought to analyze communications patterns to glean clues from details like who is calling whom, how long a phone call lasts and what time of day it is made, and the origins and destinations of phone calls and e-mail messages. Calls to and from Afghanistan, for instance, are known to have been of particular interest to the N.S.A. since the Sept. 11 attacks, the officials said.
This is the same kind of blatant “eavesdropping” that helps generate your phone bill every month. You had better sue immediately.
I compare it to your county considering whether to put up a traffic light at an intersection. They will monitor traffic: how much, what time of day, where is the traffic coming from, etc.
My God!! The highway dept. is spying on me!
OUR CIVIL LIBERTIES ARE ERODING FASTER THAN ROBERT REDFORD’S FACE!!!
The democrats have found a way to further delay Alito’s nomination to the SCOTUS. Extended hearings into these matters. They were looking for a hat to hang the delay on and they have found it.
Look for what cases are due to be adjudicated by the court.
It is a pity that Spectre is going along with this.
Cloudy,
CNN and TIME reported on Osama’s sat phone before The Washington Times. FYI.
YOUR CREDIBILITY IS ERODING FASTER THAN TIM ROBBINS’ CAREER!!
It’s my understanding that the guys who blew up the London tube were born and raised in London and did not necessarily have contact with radical Islamists outside of England. It’s certainly possible, right? And if it’s possible, then how would such a group be treated under your theory?
Skipping down, so apologies if this has been addressed.
MF
I’d like to make the analogy to gang statutes in the criminal code. One doesn’t have to be an “official” member of a gang to be charged under gang statutes… specifically CA PC186.22(b)(1) states
When CHP Officer Thomas J. Steiner was gunned down by a 16 y/o outside of a Pomona courtroom, among the reasons of bumping to to adult court was the fact that this kid did it to impress the 12th Street gang that he wanted to join. This made him chargeable under the statute I just cited.
EVEN if an Islamist cell in the UK or US were “home grown” with only nebulous direct connections to foreign Islamists and al Qaeda, the fact they are engaged in activities designed to promote or benefit the aims of foreign Islamists would make them foreign agents.
cloudy, I fully understand your concern. You are more afraid that the government might find out something about you that you didn’t want them to know than you are of being killed by terrorists. That’s an easy fear to have if you don’t believe that terrorists threaten the life of this nation, but that fear is based on ignorance of the threat we face.
Many Americans have lived in peace and freedom for so long that they cannot imagine a day when America is ruled by a dictatorship. Fortunately, enough of us are aware of history that we’ve willingly put our lives on the line (and many have made the ultimate sacrifice) for those of you who cannot imagine such a day.
You just need to go on a trip. Travel to a few places in the world were death lurks around every corner. It will help you appreciate the greatness of America and realize that it’s worth saving and that having the government do surveillance to defeat the enemies of America is a good thing, not a bad one.
Ben Franklin’s famous phrase, “They who would give up an essential liberty for temporary security, deserve neither liberty or security” is being thrown around a great deal these days. Many times the temporary is left off and liberty is exchanged with freedom.
Many do not understand that Franklin’s statement is rooted in social contract theory. The important part of the statement is temporary. When you enter a society (either by birth or immigration) you agree to give up certain liberties for the security that society provides. (Speed limits, for example.)
What Franklin was not saying is that any liberty you give up for security is bad, which is how many misuse his statement. The very fact that you obey stop signs and speed limits indicates your willingness to give up essential liberty for security. Logically, if you give up essential liberty for permanent security, then Franklin’s warning does not apply.
As citizens we have the right to decide if we want to give up what we perceive to be an essential liberty for what we perceive to be permanent security. In the vastly interconnected world we live in today, refusing to allow the government to monitor any communications may well reduce your liberty as the criminal elements will have free reign. Or even terrorists who seek to murder thousands for no better reason than they aren’t the right kind of Muslim.
Some of us aren’t willing to make that exchange.
Amamiya Chizuki wrote
Do you have a cite for this? Because I seriously doubt this is the case. I know that I did not sign away my Constitutional rights when I signed an oath of secrecy before I began my intelligence work. I seriously doubt Ames did either.
Furthermore, were this true, it begs the question, why would the Clinton administration have to sign an order authorizing warrantless searches of Ames’ home if he already agreed to it?
I’m calling bs on this one unless you can provide a believable cite.
Charlie, Ames had a clearance. He signed on to warrantless searches if the agency holding his billets deemed it neccessary. No analogy.
Nope, sorry. First, I’ve signed the same papers, and they don’t do any such thing. Second, if they did that, there wouldn’t have needed to be an executive order authorizing the searches.
yeah, what he said.
Karl, on your point about the steel case not being applicable because that didn’t fall under Art 2’s CinC role. I apologize to anyone if this is sort of changing the subject, but wouldn’t using this logic mean that the President is free to disregard Congressional legislation in his CinC role mean that he could decide to disregard the McCain Amendment? Hope springs eternal
Don’t care what Franklin says, or the law: Happy to die for liberty…don’t need no stinkin’ govt. protecting me, thank you. And I don’t need it spying on me either. Or taking away my right to a trial should I ever be arrested. Or lying to me.
Bunch of wimps living & running this country who would never dream of of saying “live free or die” or “give me liberty or give me death”.
Today, it’s all about protecting life & property and that drives us to excuse all manner of activity by the spooks in DC.
Bring the fight here. AQ will meet its match in my backyard.