U of Chicago law professor Cass Sunstein, on Bush’s NSA program:
The discussion of wiretapping by the President, without court approval, raises a number of important and interesting legal issues. According to CNN, Attorney General Gonzales recently said, “There were many people, many lawyers within the administration who advised the president that he had an inherent authority as commander in chief under the Constitution to engage in” this kind of “signal intelligence of our enemy.” The Attorney General added, “We also believe that the authorization to use force, which was passed by the Congress in the days following the attacks of September 11, constituted additional authorization for the president to engage in this kind of signal intelligence.”
I want to suggest here that this last statement is more plausible than it might seem at first glance. If the statement is indeed correct, some legal questions certainly remain, but at least we will have made progress.
The authorization for the use of military force (AUMF) says, “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 September 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.”
This authorization clearly supported the war in Afghanistan. It also clearly justifies the use of force against Al Qaeda. In the Hamdi case, the Supreme Court added that the AUMF authorizes the detention of enemy combatants—notwithstanding 18 USC 4001(a), which requires an Act of Congress to support executive detention. In the Court’s view, the AUMF stands as the relevant Act of Congress, authorizing detention. It is therefore reasonable to say that the AUMF, by authorizing the use of “all necessary and appropriate force,” also authorizes surveillance of those associated with Al Qaeda or any other organizations that “planned, authorized, committed, or aided the terrorist attacks” of September 11.
The reason is that surveillance, including wiretapping, is reasonably believed to be an incident of the use of force. It standardly occurs during war. If the President’s wiretapping has been limited to those reasonably believed to be associated with Al Qaeda and its affiliates—as indeed he has said—then the Attorney General’s argument is entirely plausible. (The AUMF would not permit wiretapping of those without any connection to nations, organizations, and persons associated with the September 11 attacks.)
This brief statement does not answer several other questions, including (a) whether, as the Attorney General also contends, the President has inherent constitutional authority to engage in this kind of wiretapping (authority he does not need if the AUMF is sufficient), (b) whether specific statutes negate the authority that the AUMF appears to give (as Senator Feingold has argued—an argument that in some tension with Hamdi), and (c) whether there might be a possible Fourth Amendment barrier to these wiretaps (a barrier that might remain even if the AUMF provides authorization, see Hamdi on due process limits on the power to detain).
A few observations: first, that we’re collecting this data outside the country, if Bush is to be believed, means that FISA and fourth amendment protections may not even obtain [regarding FISA, Concurring Opinions, for one, doesn’t see any scenario under which the program could pass statutory muster; the Duke Law Journal article I linked yesterday notes, however, that “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”]—but beyond that, there are several reasons to believe that the President is on solid constitutional ground with regard to fourth amendment protections (see for instance, Orin Kerr and Dale Franks; see also, Andrew McCarthy). All of which would seem to suggest that the authorized use of military force—for it to have any meaning whatsoever—would have to include the gathering of signal intel, particularly if the source was international transmissions, and the targets carefully chosen. Otherwise, we’d be arguing a scenario under which the President can protect the homeland with “all necessary and appropriate force”—unless that force involved headphones instead of Hellfire missiles.
We still don’t know enough about the specifics of who was monitored or what technology was used—certain technologies, given the sheer volume of the data collected, could conceivably make aquiring warrants in a timely fashion (via the FISA emergency measure of 72 hours, which has proven a sticking point for some, though Byron York has tried to address the point) impossible. The truth is, we simply don’t know.
But if we take into account that the courts have always tacitly agreed to the President’s presumption of power to authorize foreign intelligence gathering—and couple that with the (AUMF) plain text and Bush’s own suggestion that the intercepts were done outside the US—I would suggest, yet again, that the President seems to be on fairly solid legal ground. I don’t believe that Congress can strip the President of his power as CiC by statute (and again, I’m not certain the FISA statutes 1) apply to the logistical scheme for data collection, and 2) don’t allow for petitioned exceptions for foreign agents under certain readings that appeal to 1801 f, via Hamdi [opposing view from Bench Memo’s Matt Francke)—nor should the President lose his power as CiC simply because the enemy was clever enough to position cells in the US.
The FISA review court (2002) stated, clearly, that the President, as CiC, has the inherent authority to conduct warrantless searches—a power that FISA cannot abridge. SCOTUS has never ruled on this, true enough. But again, the legal presumption for those counseling Bush was most certainly based on continued deference from a series of courts (as evidenced here, yesterday). All of which leads me to believe that we are not seeing a violation of civil rights, nor are we seeing the shredding of the Constitution, or an imperial executive power grab (unless we wish to see those same impulses in just about every president—certainly from Carter forward).
Sure, saying such brands me a “radical” “wingnut” who is hates freedom and plays at being a “libertarian” (which I don’t, in fact; I find the libertarian position on national security dangerously naive and prefer to call myself a classical liberal)—but at least it brands me as a radical wingnut whose admittedly tentative forays into legal analysis haven’t left him wandering alone in the statutory wilderness.
And for what it’s worth (and my detractors’ protestations to the contrary), I’ve tried very hard to represent all viewpoints and give fair airing to those arguments at odds with my own, some of which I’ve found more persuasive than others. Which is why I’ve been surprised at the number of rejoinders that have so baldly begged the question, noting that I support “superconstitional presidential powers” or the end to civil liberties, when in fact these are the very questions (is the President expanding executive power beyond what’s constitutionally permissable and warranted given the circumstances? Is the civil liberties trade off that comes with increased security in an open society something we are willing to live with?) that are at issue.
The bottom line is this: do you or do you not think we are really at war, even if it’s only in the way we’ve taken to declaring over the last 50 plus years…? Tell me that, and there’s a strong likelihood that I can tell you what your position will be on the NSA “spy” question.
****
Here’s more from Sunstein; for an opposing view, see Geoffrey Stone, “King George’s Constitution”; and Jacob Sullum, “King George”
(h/t Patterico, who has more here; h/t also, Pej, who disagrees with me on this one; see also, Two Conways)
****
update WaPo: “Judges on Surveillance Court To Be Briefed on Spy Program” (h/t Confederate Yankee, who provides some analysis); and see also, Max Boot, “‘Plame Platoon’ is AWOL on new leaks” (h/t Neptunus Lex)
Also, SCOTUSblog’s Lyle Denniston has a nice entry on “inherent power”
Dude. Get some sleep.
“Ripley! You’re just grinding metal. Ease up.”
(Nothing personal; haven’t read the post yet.)
I saw this earlier Wednesday. Sunstein’s no righty, so his comments make me take notice.
I can’t get enough of this topic, but I must drop off for the night, and hope you have already Jeff. Thanks for the great info.
No, I do not think we are really (Constitutionally) at war.
We will really (Constitutionally) be at war when Congress (per the Constitution) declares war.
To the best of my recollection, Congress has not really (Constitutionally) declared war on any of the far-flung peoples, whose ire at (unwaranted and Unconstitutional and decades-long) American military presence motivated the aggression against the Battleship Cole, and the 1993 attack in NYC, and the 911 attack.
So we ruffled a lot of feathers when we freed the Kuwaitis? I feel so ashamed.
Poor Widdow Saddam. And then, years later, we beat him up after flushing him from his spider hole.
I have to go now and cry into my pillow.
Here’s a mind-bender… What does it mean when Congress funds the “unwarranted” “unconsitutional” “decades-long” military presence?
BTW, just between you and me, we didn’t attack Iraq, it was merely the US lashing out with agression against Saddam and his decades-long record of invading his neighbors and dissin’ the UN.
TW: “evening” – as in, “It is time for my evening constitutional.”
Jeff – Thanks for the coverage and analysis you’ve provided here. In-depth, incisive, and for those of us who are not lawyers, informative to a degree not found in many other venues.
It’s my understanding—and I should have been paying closer attention, but my son has learned to take off his diapers and fling his poo about, which distracted me—that there is a special panel of DoD folk who are deciding on the targets. Though I won’t be quoted on that.
What I do know is it is not George Bush sitting around in his cowboy boots stroking George Jr while he conjures him up some brown folk to spy on.
Meanwhile, folks like miracle whip (who, unsurprisingly, are always going by such names) continue to hurt their own cause by showing themselves to be such blinkered historical martyrs who believe they have some special insight into the especial evil of the US imperialist juggernaut. Which makes rational people like me and most of my readers want to giggle and sob all at once.
(1)A little bit off-topic, but the 6-month extension of the USA PATRIOT Act changes the whole surveillance picture on that front. There is very good reason to suspect that in the new version of PATRIOT to be drawn up next year, many of the legal issues of the ‘Authorization to Use Force’ and the NSA will also be addressed. Just a speculation.
(2)Also, as you can see, the Democrats did NOT seek to leave the country “blind” w/o the PATRIOT Act, but in fact (much to my surprise) won the battle to have the act only temporarily renewed, in order to hammer out the issues fully. This was because the Bush Admin and its allies,who had hoped to put (Gonzales in the WaPo, Guiliani in the NY Times) the blame on the Democrats while refusing to temporarily renew PATRIOT, found that strategy for whatever reasons unfeasible, and blinked.
(3)The notion that “we are at war”—especially in an age of ‘permanent war’, such as the “Cold War”, where the same logic was employed—is of only limited cogency for some. We need to do what is necessary to go after Al Qaeda, but it is never wise, in my and in many others’ opinion, to give the executive unaccountable and unreviewed powers.
There is also the question of effectiveness. It is not at all clear that these other powers are truly needed (although it has been argued here), or that the civil liberties protections proposed would, despite the protestations of the Bush Administration, seriously hamper the legitimate work of investigating terrorists.
Finally, cloudy, a comment that doesn’t whine, gets to the points quickly and cogently, and engages the post on a level that I can respect.
I believe you are wrong—Presidents have always had expanded authorities during war time, and while this war is like the Cold War in some respects (duration, ideologically driven), it is unlike the Cold War in other respects (attack on the homeland, no state actors on the enemy side)—so the analogy of a perpetual state of war under which the Bushies are seeking a power grab doesn’t fly.
This enemy embeds cells here for the purpose of killing us, not simply spying on us; and so while the need for vigilance (by way of new paradigms to battle those who are taught to act in the spaces between our laws) may indeed be perpetual, the vigilance is directed toward a very narrow and specific group/class of foe.
HUZZA!!!!!
I would only add to Jeff’s comment that I think Cloudy is giving too much credit to the Democrats and their arguments against the iffy sections of the Patriot Act. These provisions have various requirments of review and oversight, and many of them haven’t even been used.
This isn’t enlightened politics. It’s base political calculating.
Sunstein? He and his ilk have been summarily dismissed from the debate.
Go, Barry! Who knew it could be that easy?
Curse you Jeffgoldstein-san!
How can i spread anarchy and subversive meme plagues when you are doing such a spectacular, fair and unbiased analysis of all of the issues?
Here’s my problem with those who take the position Cloudy and Miraclewhip take. They are willing to completely believe everything the Democrats say on this issue and completely distrust what the President has to say on the matter. You might not have voted for the man, but believe it or not he is OUR CinC in this time of war. I truly find it amazing that so many people believe the President would come out on a couple of occasions now and boldly proclaim he is guilty of a crime. I’ve been scratching my head on this one.
Jeff, you’ve done a fantastic job at hitting all the high points on this issue and I think you’ve been incredibly fair with everybody who has provided comment, on one side or the other. For those of us who work in this profession, I’m glad more people are looking into how things work in the intelligence field. There are many issues I believe that are black and white, but I can safely say there are so many shades of grey involved when dealing with intelligence, it’s sometimes difficult to make a decision.
And I believe you are spot on with your question concerning whether we are at war or not. It really is that simple and I think you can see by the arguments people are making where people stand. My only hope is they wake up before we’re hit again and it will happen. It’s just a matter of when and where.
TW: hard, it’s really hard to believe people have forgotten not when we were attacked, but how many times we’ve been attacked.
In some cultures, poo-flinging may be construed as an act of war. Just a heads-up.
Especially if “…there is a special panel of DoD folk who are deciding on the targets…”
A very thorough, and link heavy post. I figure about two hours of reading and thought if I work through it all.
But if we do not hear from Leif Garrett, Peter Fonda, or Shannon Elizabeth on the issue, it will all be for nought. Civil liberties are at stake, man! Their voices must be heard!
Close your eyes and imagine that it is President Hillary Clinton in place of President Bush. Can you look at yourself in a mirror and tell yourself that your position or your rhetoric would not change even one little bit? If you can not, then I suggest you are a partisian hypocrit, regardless of which side you are on.
Cloudy? Miraclewhip? Bueller? Anyone?
Remembering A Time To Kill
You’ll have to go back farther than that, miraclewhip.
“…that it was founded on the Laws of their Prophet, that it was written in their Koran, that all nations who should not have acknowledged their authority were sinners, that it was their right and duty to make war upon them wherever they could be found, and to make slaves of all they could take as Prisoners, and that every Musselman who should be slain in Battle was sure to go to Paradise.”–Sidi Haji Abdul Rahman Adja, the Tripolitan ambassador to Britain, explaining to Thomas Jefferson and John Adams “why his government was so hostile to the new American republic even though America had done nothing to provoke any such animosity.”–Joshua E. London
This quote is from some schmoe who calls himself “Karl the Idiot” over at Pandagon. (I have to post this here, because they require SiteKey registration over there, and you know, fuck that noise, ‘cause totally anonymous is just the way I roll.)
Anyhoo, Jeff, I’m sure you have a crystal clear recollection of this choad, who has apparently been gnashing his teeth for the last 18 months as he falls asleep at night, punching his pillow on which he’s silk-screened a picture of your mug.
I’m just absolutely fucking positive that the memory of your epic battle with Karl of the Nitwitterati burns brightly in your mind.
Right.
In any event, the “smaller tits” thing? Fucking excellent. Mandy was pwn3d on her own blog … that’s gotta hurt.
We – well, I – linked to this over at RedState. I’d trackback, but that’s not an option… for reasons which still escape me.
Moe
Moe, I thought you gave up political commentary for Lent, or something.
Those are some very angry, very disturbed pillow biters over at Pandagon.
Jeff wrote:
“It’s my understandingâ€â€and I should have been paying closer attention, but my son has learned to take off his diapers and fling his poo about, which distracted meâ€â€that there is a special panel of DoD folk who are deciding on the targets. Though I won’t be quoted on that.”
Sorry to quote you on that Jeff, but this is a very serious development indeed. It’s one thing for your son to be hurling his poo about indiscriminately. But I think we’re getting into a whole other level of atrocity here once we start talking about there being targets for that stuff! Aside from stinking the whole place to high heaven, it raises the awful spectre of human shields, suicide poo raids, general wall/latrine insanity and all manner of ghastly – not to mention very smelly – entanglements that could tie up our resources for decades to come. Isn’t there something we can do?
How about using wire taps on people in people going about their everyday business in Milwaukee to see if they’ve had a shit in the last month? It might not help us to prevent innocent civilians becoming embroiled in a god-awful crap/diaper fight with a clearly temperamental, ideologically driven young manchild, but it would make very interesting reading for the rest of us…
Now, will you take a look at this?
I tried to get out, Slartibartfast – but they kept sucking me back in!
Seriously, (shrug) it’s a hobby. I have access to a political site; I use it.
Moe
PS: To answer the question that you’re about to ask: No. And I decline to say why.
My effort at at an answer to coralhead above:
One of the characteristics of serious people, and especially serious people about foreign/military policy, is that they can, in fact, see the other side of the divide.
Therefore, I state unequivocally that if a Democrat were President now–I’d say that in a time of war that he or she would deserve the benefit of the doubt in regard to motive in this instance. The shrieking that inhabits the left side of the debate has now reached such high pitch that even dogs are having trouble hearing it.
Real attempts at red scares, enemies lists, and federal skullduggery eventually fail. And fail miserably because they are what they are–clear attempts at subverting our rights. The President says that the NSA program was necessary and I’ll believe him until someone can point to intercept transcripts on illegitimate targets showing up on Karl Rove’s desk. That outcome is apparently what the left thinks is the real purpose of the program…and that claim just does not hold up to scrutiny.
And my return question is as follows to those who question the President’s motives: If the Democrats win the 2008 election and President Bush quietly observes the oath on January 20, 2009 and returns to Crawford…what will that do to all this…well, silly conspiratorial prattle? I don’t want to be pejorative (this time anyway), but I can think of no other term that captures what passes for intelligent thought on these very serious subjects in some quarters.
Rather long and posted already. An overview of the administrations policy thoughts on the WOT. Good starting point for ‘Is this a war?’.
From Link starting on page 15.
PS: To answer the question that you’re about to ask: No. And I decline to say why.
Objection: mindreading. Inept mindreading, at that.
Actually, I wanted to discuss a few things with you in private, just between us’ns. If that’s the question you were answering, on the other hand, disregard the above inept mindread.
“And my return question is as follows to those who question the President’s motives: If the Democrats win the 2008 election and President Bush quietly observes the oath on January 20, 2009 and returns to Crawford…what will that do to all this…well, silly conspiratorial prattle?”
Based on my recollections of the Reagan and Bush 41 years, it’ll all go into a box and kept in storage until the next time a Republican is elected President. Why do you ask?
Jeff, could you be more specific? Are we talking about carpet-bombing or surgical-strikes?
I liken Satchel to Bloom County’s Rosebud the X-15 Cruise Basselope. Both are adorable, yet lethal.
Go ahead and email, Slart.
Serious question.
In the above, the President is authorized to use any force against those who committed the September 11 attacks and “such organizations or persons.”
Does that mean “Authorized to use any force against organizations similar to those which carried out those attacks,” or “only those organizations which carried out those attacks?”
Re the issue of whether we would support this power if a Democrat were running things.
Well, that’s what happened – albeit on a much smaller level – during the 1990s under President Clinton.
As Jeff has amply documented, the Clinton Administration claimed this inherent power (to conduct warrantless surveillance of foreign agents) on a number of occasions (e.g., Gorelick during hearings on FISA changes, Clinton Justice Department in a trial of those involved in the Kenyan embassy bombing).
And when Assistant A.G. Gorelick made this claim to a Republican controlled House, nothing happened. The Republicans didn’t run from the room screaming “Dictator, dictator”.
And when the Justice Department made the same claim against al-Qaeda in United States of America v. Usama bin Laden, the right didn’t characterize the move as a sundering of the check and balances.
And when they actually engaged in a warrantless physical search of an American (living in Kenya), there was no yelling and screaming from the Republicans over the act.
In other words, no poo flinging took place.
So, that reindeer won’t fly (er, you get the idea).
BTW, Jeff, didn’t you find that piece by former Clinton Assistant A.G. Schmidt interesting? My guess is not only, as has been documented, did the Clinton W.H. claim this power, but they used it much more often than was reported. Just a hunch but Schmidt’s piece intimates (in my reading) that that administration did more than just state they had the right to conduct warrantless searches; they engaged in this type of intelligence gathering.
SMG
All this wailing and gnashing of the teeth!
Both sides of this issue spin their webs from a
central and, apparently, immutable position.
Right-wingers demur to the “Churchillian†view
of Bush and left-wingers to the “Orwellianâ€Â
There will be no consensus until more erosion
of moderate to mid-right Republicans hear
the Bell of their careers begin to toll for them.
Much discussion of Carter and Clinton’s Executive privilege practices deflects from the other two
presidents who precipitated more congressional
oversight in these matters because of egregious
abuses. You know who they are.
Nixon’s wiretaps were excused by his apologists
because we were at war. The congressional response was FISA in 1978. Not so directly
to these matters, but connected nevertheless is;
Iran-Contra.
Reagans pardoned-before-trial heros ;Poindexter,
North and Weinberger were the genius behind all
the intel restrictions and rollbacks for
Executive privilege that were largely responsible for the intel failures prior to 9/11.
So when you talk about Clinton and Carter, make sure your contextual integrity includes Reagan
and Nixon.
The repeated claim by some that we are not “constitutionally” at war is just completely ignorant. The AUMF we’ve been discussing is legally and constitutionally a declaration of war. There is zero doubt about that. None. Nada.
Semantico, since the restrictions on intelligence came during the late ‘70’s via the Church committee etc., trying to blame Reagan is itself Orwellian.
So when you talk about Clinton and Carter, make sure your contextual integrity includes Reagan and Nixon.
Why?
Their actions in Iran-Contra and/or Watergate is completely irrelevant to the issue of whether a president has the power to engage in warrantless searches.
The point in discussing Carter and Clinton is to show that they also claimed this right, that Congress did nothing to take away that right (they couldn’t anyway unless through the Amendment process since it’s a Constitutional power), and that the courts (lower admittedly and not SCOTUS) repeatedly supported or upheld (implicitly and explicitly) this authority.
Anyway, if we’re going to list presidents who engaged in questionable (and illegal) actions, why limit it to Reagan and Nixon?
How about FDR’s internment of Americans? (Japanese, German, Italian). Or his complete censorship of the press during the war? Or Wilson’s “Red Scare” policies?
Spitting contests over which Administration was more derelict in carrying out its lawfully permitted authority may be fun; but it contributes nothing to the topic at hand.
Except muddy things up.
SMG
And how about some warrantless phone taps on known or suspected terrorist sympathizers who are leaking classified information to the NYT and other unauthorized entities?
and you ain’t gonna know.
I pointed this out before, this legal wrangling is a siily waste of time since you actually know nothing about the circumstances of the collection!
The only laws that we can be sure have been broken are the laws protecting classified intel.
Those “citizens” violated their security oaths. Let’s fry the fuckers publically.
Semanticleo:
Let’s try to keep issues that belong together, together and those that don’t apart, deal?
If you look at my post above, you’ll see where I delineate between actions like Nixon’s (enemies lists and using executive power to beat down those enemies) and legitimate surveillance of bad guys. I’ll note that in all the legalese going around that Howard Dean’s cellphone seems to be doing fine and the NSA isn’t sending his late night primal screams to a central clearinghouse for processing.
As for the Reagan years–I’m having trouble seeing where Ollie North’s adventures in creative finance have to do with intelligence gathering. SPQR hits the nail on the head–Frank Church and his associated chicken littles cut the intelligence community off at the knees.
And if you are counting on this “issue” to lead the Democrats back to the promised land–I’d search around for something with a little more adhesive power. Thing is, those things are in short supply at the moment, hence the need to manufactre crap issues like this.
Steve;
You won’t find me defending FDR on the issue of internment camps in WWII.
Include anything you wish in the discussion if it’s germane.
I mention Nixon and Reagan in connection with Bush
because they made it necessary (through abuses)
for Congress to further refine and restrict Executive privilege. The more the President is hemmed in, the slower the military response will
be in a real emergency. All this would be unnecessary if there were more respect for the spirit of the law, much less the letter of the
law.
I’d just like to point out that the Cole is a destroyer and not a battleship.
Miraclewhip,
I have not read every comment, so maybe someone has already asked you this: How many times in our country’s history has Congress declared war? After you answer that, can you then tell me how many times we have gone to war?
The answers may surprise you and will demonstrate that the country can be at war w/o a declaration from Congress. The declaration has nothing to do with whether or not we are at war, and is meant to provide the U.S. with certain expectations and rights under interntaional laws. Congress also has the power of the purse to fund the war, a power the Prez does not have. It’s how the Vietnam war was terminated, by Congress pulling the funding.
Prior to our country’s founding, were wars “declared” in the way you seem to think they should be? It was not something our Founders were used to, and did not expect of the new republic they were forming. We are at war, I can assure you of that. Tell our troops in Iraq that they aren’t in a war, if you bring yourself to do so. We had war declared against us in ‘98, and we only woke up to this fact somewhere in October 2001.
Jeff’s right. Knowing a person’s answer to the question “are we, or are we not, at war?” will inform anyone in this debate as to which side that person stands. It is the question I was asking over on Cole’s site earlier this week, and received the same head-in-the-sand response as you provided here.
More specifically, the USS Cole is an Arleigh Burke-class missile destroyer. A pretty fearsome piece of weaponry, and a pretty damned expensive one too.
Jeff,
I appreciate all the the hard work, but I have a hard time getting past your first sentence: “we’re collecting this data outside the country, if Bush is to be believed.” There are problems with the meaning, correctness, and relevance of that assertion.
I think you’re saying “we’re collecting this data outside the country,” and we know this because Bush said so. But that’s not exactly what he said. He said this: “these calls are not intercepted within the country. They are from outside the country to in the country, or vice versa. So in other words, this is not a—if you’re calling from Houston to L.A., that call is not monitored.”
In his usual awkward and misleading style, he said “these calls are not intercepted within the country,” when a clearer statement (of what I think he meant) would have been “this program does not go near communications which are purely domestic.”
You quote an article which says “when the surveillance occurs outside of the United States, FISA is not applicable.” That article is plainly talking about the location of the target[s]. Here’s the more complete passage: “the procedures to be followed when conducting electronic surveillance vary depending upon the identity of the target and his geographic location. All electronic surveillance that takes place in the United States must be conducted in accordance with FISA, whose primary requirement is prior judicial authorization from FISC. However, when the surveillance occurs outside of the United States, FISA is not applicable, and there is no requirement of prior judicial authorization.”
You use that last sentence, connected with Bush’s confusing words, to suggest that FISA doesn’t apply to what Bush is doing. But the scenario in question (a US person in the US communicating with someone outside the US) is plainly covered by FISA, and the Duke article does not suggest otherwise (although it does not explicitly mention the instant hybrid case, where one party is inside the US and the other party is outside the US). I think you’re making a mistake by suggesting otherwise.
Further, I think your words (“collecting this data outside the country”) muddy the waters in a very unhelpful way, because I think the implication is that it matters where the NSA technician is sitting (i.e., inside or outside the US). I see no legal or logical reason why that is relevant. What’s relevant (legally and logically) is the location of the target[s].
Interesting bit of futility here:
In the days before Blog, two sides disagreed, occasionally debated, often with a lack of supporting info, and usually parted ways still in disagreement. We now have so much info, so many resources, so many minds “on the job”, as it were, that often both sides of a debate can call up a reference, a proof, or a supporting testamonial. The result? We debate, and part ways still in disagreement. Now, however, we think the other guy is an idiot.
I have seen good debate on this issue (in a very few places, but still), and find an irony: There are “experts” that cite documentation for Bush’s correct actions. There are “experts” that cite documentation regarding Bush’s illegal activity. Seeing how both sides have some facts to back up their claim, why aren’t we giving the alleged perp the benefit of the doubt? Isn’t that the American – dare I say “Progressive” thing to do?
Thanks, as always, for wading through the muck on this, Jeff. The biggest problem with the ‘net is the vastness. You seem to cull out the crap (unless it is mock-worthy, bless you), and will link to the saner arguments of the opposition.
tw:help yes, you do. Thanks again.
<style, he said “these calls are not intercepted within the country,†when a clearer statement (of what I think he meant) would have been “this program does not go near communications which are purely domestic.†</blockquote>
Which would be a valid criticism, unless what he really wanted to communicate was a) these are not domestic calls, they’re overseas, and b) these are intercepted overseas and not domestically. I don’t normally quibble with critiques of Bush’s speaking skills, but this seemed pretty clear to me. OTOH he may have been saying something completely different.
Dunno what happened to the fargan blockquotes, but the rest ought to be clear.
TomM;
Good points made, but have you heard the tome;
“Fool me once, shame on you. Fool me twice,
shame on me.”?
And, sparks, inasmuch as you might think where the data is collected is meaningless, there are definitions in FISA that do discriminate on that basis. FISA might have nothing to do with your point, though, so you might want to expound further.
Can someone please answer:
Where is the historical precedent for a commander-in-chief, especially during war, being required to ask permission from a court to spy on the enemy, including intercepting communications?
Did JFK/LBJ/Richard Nixon (Vietnam War) use probable cause as the basis for intercepting enemy communications?
Was it only after the creation of the FISC in 1978 that intercepting enemy communications became lawful?
If no, then please explain how the President “broke the law”
Tom,
Thanks for articulating what’s been on my mind this week. I spent two days having a “debate” on this topic over at Cole’s site, with the result being me receiving slurs and epithets, and getting so frustrated at times that I would respond with unwarranted sarcasm. It went nowhere, mostly because the tone of the conversation could not escape the “Kossacks vs RedStaters” distance and perspective.
I find that some sites, like PW, can stay above that fray, but they are few and far between. Another site I would recommend is Volokh Conspiracy and Professor Bainbridge, at least for this subject. In general, there’s something about the anonymity of the Net that allows people to say things that no sane or decent person would say to their opponent’s face.
“Where is the historical precedent for a commander-in-chief, especially during war, being required to ask permission from a court to spy on the enemy, including intercepting communications?”
Ace;
The ‘enemy’ should also include the terrorist
group known as Greenpeace?
Semanticleo, 12:51 :
Yes, but I am not sure how that is germane(sp?) here.
Is that what a tome is? I thought they were supposed to be longer. Thanks for the reply.
The ‘enemy’ should also include the terrorist
group known as Greenpeace?
That’s a pretty piss poor attempt at an answer.
Which is what I expected.
However, there is no evidence greenpeace was “spied” on without authorization.
Otherwise, great “response”
TomM;
Your grammer(sic)oversight is your strength. Stay with it.
Thanks for the non-denial-denial.
Semanticleo,
for the record, the President could round up every single member of Greenpeace and detain them for investigative purposes without a warrant.
Otherwise, I anxiously await your reply to the direct questions posed
Semantico,
the reference to Greenpeace is irrelevant here, obviously your introduction of it is a distraction.
Although I’m tempted to know why if having Greenpeace as an enemy of the state is good enough for France, its not good enough for the US?
However, there is no evidence greenpeace was “spied†on without authorization.
Ace;
I assume your wiggle-room is the lawyerly
“without authorization’.
Would the lawyers argue what the meaning of
‘without’ is?
If I give myself permission to steal a day-old
wiener from the local convenience store; did I have ‘authorization’?
slart,
“these are not domestic calls, they’re overseas”
It depends what you mean by “overseas.” If the implication is that both parties are “overseas,” that’s inconsistent with other statements, such as this one by Bush: “We know that a two-minute phone conversation between somebody linked to al Qaeda here and an operative overseas …”
Clearly what we’re talking about is a call where one party is in the US and one party is not. It’s fine with me if you call that an “overseas” call, as long as it’s understood that only one of the two parties is “overseas.”
“these are intercepted overseas and not domestically”
What is that supposed to mean? Does it mean the NSA techinician is sitting in Europe, instead of in Maryland? I fail to understand why this matters. What matters is where the target[s] are sitting.
“there are definitions in FISA that do discriminate on that basis [where the data is collected]”
I believe you are wrong (and I think a variety of other people, including Jeff, are confused in the same way you are confused). FISA cares where the target[s] is sitting, not where the NSA technician is sitting. See the FISA definitions: “(f) “Electronic surveillance†means (1) the acquisition by an electronic, mechanical, or other surveillance device 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”
Please indicate where FISA cares about the geographical location of anyone other than the target[s].
Semanticleo,
I never claimed to have a special insight, oversight, or foresight regarding grammar. I’m barely adequate, in fact, but thanks. “Non-denial-denial”? I answered your question with “yes”. I am not making the connection with regards your statement to my point, however. Could you explain it?
There is no, as in zero:
Evidence
Greenpeace
Was
Investigated
Without
A
Warrant
Nor
Is
There
Any
Evidence
They
Were
“Spied”
On (as in warrantless, eavsdropping, etc).
I put each word on 1 line as you don’t seem that bright.
Is this an attempt to answer my questions by the way?
Ace,
I am not sure if your questions are meant to be rhetorical or not, meant only to poke the opposition and get them to stay on-topic, but I will offer a perspective of my own.
I am no lawyer, and with all of the Constitutional scholars out there on blogs claiming to know for certain that BUSH BROKE THE LAW!, I’d best comment as an average joe.
The legality of this program is debatable, but the president seems only slightly less constrained in using surveillance under FISA than in pre-FISA days. Technological advances since FISA’s passage have led our population to the point where today the U.S. population has an average of 6.4 unique devices or addresses usable for communication. This includes cell phones, land lines, work emai, personal email, pagers, etc. Multiply this times the relevant population, and you have up to a billion “devices”. Then, take this formula and apply it globally, and you have an idea what we’re dealing with in terms of the volume of communications.
Given this understanding of technology, should FISA have been updated? Did the administration attempt to do this with Congress? If they did attempt this, how did Congress respond, and was it in a more substantive and responsible manner than Rockefeller’s little letter? Did Bush and the NSA, obviously believing we are at war, make a good-faith effort at protecting our security from an amorphous enemy using the best technology and math geeks at hand? Did he use take advantage of civil liberties in doing so?
Lots of questions, but I don’t think anyone has clear answers to them yet. There’s plenty of certainty from the ConLaw wannabes, but it sure seems like Bush was doing his job, as did all of his predecessors.
Brian,
Thanks for responding.
My questions are pointed mainly to the “Bush broke the law” crowd.
But you make a good point about the volume of communications worldwide.
Which is why Echelon was automated for example.
Grab everything, do an analysis later (and this may in fact be how the NSA program is running and in some instances has to be).
My main point is this:
If the President had the authority to do this pre-FISA, he does now. Congress and the Judiciary can’t restrain him because they don’t like his politics.
Sparks,
Since you’re in the business of claering up confusion for us, riddle me this:
Where are the cell phone signals captured from? Is it at the handsets? Just near the handset transmit/receive? Is it in space, near the satellite? Where is that satellite, over the U.S. or, say, India? Does it matter? Do borders extend 22,000-plus miles into the sky to a satellite’s geosyncronous orbit, and can we breach thos borders with our snooping there? If GE owns the satellite, can the military work out something with GE to get access to the signals being piped through it, trumping your rights altogether?
Please clear these up for me. You seem to be the expert in these things. Thanks.
That’s good, because that’s the common usage, unless one is discussing calls from here to Mexico or Canada. Overseas, in the context of statements made in this country, means exactly what it says.
Your failure to understand isn’t all that salient a point. Where the NSA technician sits isn’t all that important, either. The word relevant to FISA, though, is “acquisition”.
Sorry, it’s you that is wrong. FISA doesn’t say anything at all where the “NSA technician” is sitting. And that bit about particular, known United States person is a great deal of MY point, thank you very much, unless it’s your contention that people in the US were identified and surveilled by name, as opposed to what’s been described in the media.
Brian,
This may be relevant to that discussion:
From: Treaty on Principles Governing The Activities Of States In The Exploration And Use Of Outer Space, Including The Moon And Other Celestial Bodies – January 27, 1967
Oh, and I guess we should all be glad we don’t live in the UK
Ace,
To continue on my riff about communications, and picking up on your comment about sifting those communiques, compueters are handling all of this sifting. It’s clearly an impossibly large amount of information for humans to monitor, and, as law professor/judge Richard Posner has stated (not sure if Jeff linked to him or not), “computers are not sentient beings”, and therfore are not subject to the laws being discussed here so furiously. The computers are filtering the information down to what needs to be monitored by a human being, who then judges whether to toss it or pursue it further.
We can’t jail or impeach a computer, although the Left could probably make good political theater out of the whole thing by putting a Bush mask on it and screaming YOU ARE HEREBY IMPEACHED!.
The computers are filtering the information down to what needs to be monitored by a human being, who then judges whether to toss it or pursue it further.
Yep.
And:
1. This collection is being down without a warrant on US Persons (and has been that way for over a decade)
2. The human monitoring & review is also done per #1 above.
LOL, Bush mask, nice!
why aren’t we giving the alleged perp the benefit of the doubt? Isn’t that the American – dare I say “Progressive†thing to do?
TomM;
I was merely pointing out that IMHO, this admin has used secrecy as a mainspring for absolute control long before 9/11 (see governorship) and it is predisposed toward fewer civil liberties for the sake of that control. I am not ready to give them the benefit of the doubt, except in a court of law,
which may never be reached.
There’s actually a treaty governing outer space! Who f**king knew!? (You did, apparently.) Thanks!
Is it just me who doesn’t get all aflutter with fear knowing that cars in the U.K. are going to be monitored, or that the NSA might be curious if I send a daily emails to Pakistan about a custom hookah pipe I’m trying to buy (not really)? This just does not get my dander up or give me nightmares that Bush/Cheney are lighting cigars with burning copy of the Constitution and laughing “Who’s your Big Brother now, biatch?!”.
There’s no slippery slope. There’s not even a slope.
Sparks, its a shame you can’t read english competently as 1801(f)(2) definition of “electronic surveillance” which follows the part you quoted specifies that the interception defined in (f)(2) is surveillance “…if such acquisition occurs in the United States…”
Its OK, we are used to such incompetence among critics. Although the fact that the line occurs in the very next paragraph is quite informative.
Brian,
I’m partially with you on the slope comments.
Wake me up when they “come for” Group X,Y,Z, or even D…
Ace;
You didn’t do so well on the answer to my
question about the meaning of the expression;
‘without authorization’
What is your definition of the word ‘evidence’?
At what point(assuming we can continue this
at some future date) would you stipulate there was
‘evidence’ to support the view that the FBI surveilled domestic political activists with no connection to terorism?
here
SPQR, that’s OR with part 1. Full deal is:
(f) “Electronic surveillance†meansâ€â€
(1) the acquisition by an electronic, mechanical, or other surveillance device 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;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States;
or (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring
It goes without saying that there are some intercepts that could satisfy none of those conditions.
Ace;
You didn’t do so well on the answer to my
question about the meaning of the expression;
‘without authorization’
Do you mean the part where I said without a warrant?
As in authorization from a court.
Is that good enough?
At what point(assuming we can continue this
at some future date) would you stipulate there was ‘evidence’ to support the view that the FBI surveilled domestic political activists with no connection to terorism?
Evidence:
as in the dictionary term would be fine.
Further, domestic eco-terrorism has cost the US over $100 million over the last decade.
Investigating greenpeace for possible ties should not be alarming or controversial.
ps-I couldn’t get to your article because it’s asking for authentication and I’m not going to bother.
Semanticleo,
Point me to the relevant statute or case law that prevents the government from conducting surveillance on you.
thanks in advance.
Semanticleo, 2:06:
In the words of Rick from the Young Ones:
“Well, you see, that’s me out, see…”
As we had no CITIZEN JOURNALISTS through much of the previous administration(s), between secret meetings regarding hostage releases, and FBI files moving around, I don’t exactly buy your premise that Bush is using these “powers” for nefarious purposes. This may be a point that makes it impossible for us to conclude the discussion. Pity that.
As for your other observations:
If their attempt was for “absolute control”, they truly are hacks, as they have none. They only recently gained control of their own bully pulpit.
I agree that it results in fewer civil liberties, but in benefit to other civil liberties, such as the right to be free in our choices of religion, our ability to excercise our right to speak out (including, as the President noted, the right to dissent and debate about the administratuion’s policies), etc. A fair trade, as far as I am concerned.
You also seem to think the reason for such actions by the administration is to get that control you referenced earlier. I just don’t buy it.
tw:justice
we see it through two sets of glasses, my friend.
Let’s look at this a different way, shall we?
Suppose the FBI or any domestic law-enforcement operation wishes to wiretap a suspect. They obtain a warrant, and tap the suspect’s telephone. Are the Fourth Amendment rights of the people on the other end of all of those recorded conversations automatically violated by recording in that way? Why or why not?
Miracle Whip:
Joe Biden:
So, looks like there was a declaration of war.
I just can’t even believe this is even in question. There is nothing in the constitution that says that congress must ritually invoke the words “declare war” before we’re at war!
I’ll break this down into small bits:
Congress granted Bush the authority to use force (or an armed conflict in other words) to remove the governments in Iraq and Afghanistan if it was needed.
The definition of war is a state of armed conflict between two nations.
What they passed was a declaration that was authorizing the President to take us to war.
Now, I’m no legal expert, but it seems to me that “a declaration authorizing war” pretty much qualifies as a “declaration of war”.
Jesus! I feel like I’m taking CRAZY PILLS or something!!1! (/Mugatu)
SeanH,
Joe Biden, self described Con-Law professors says we declared war.
Should end the debate.
Loose Schrödinger’s cat poo. Excuse the spelling, and lack of clarification in the first paragraph, above. I meant to use the previous administrations as a comparison to this one. Sorry.
Damn. Charlie beat me to it and with a much smarter rebuttal. I don’t feel too bad though. There are a (very) few folks that comment here that I suspect can’t get through Jeff’s posts without moving thier lips as they read so my dumber version still has a purpose.
Ace;
really good at asking questions, not so; answering.
I only saought to narrow the discussion down to the simple word ‘surveillance’ so that we could move on to the operative word ‘authorizatiion’
I assume you stipulate ‘surveillance’of domestic
political groups by the FBI is a given, and you have no problem with that. Correct? Or no?
Sparks wrote:
If you don’t see the relevance, you should read the materials at the links I already posted here and here.
Slartibartfast, we are on the same page ol’ buddy.
You need a warrant to surveil? I had no idea.
Check, SPQR.
I assume you stipulate ‘surveillance’of domestic political groups by the FBI is a given, and you have no problem with that. Correct? Or no?
Wow.
To be clear:
I have no problem with that.
It’s not illegal
Nor is it intended to be.
I don’t know what you’re missing about my comments, they are very clear.
You seem to think surveillance=warrantless listening to phone calls.
It does not.
Again,
point me to a statute or relevant case which says the government can not conduct surveillance on you (warrantless)
Under 1801(f), one can stay completely outside of FISA and require no warrant by not intentionally targeting a US person, intercepting international calls and doing the interception outside the US.
I am personally of the opinion that the reason the administration isn’t trying to use this justification is merely that the program may have automatically grabbed some communications that fell outside this definition and it doesn’t want to argue the meaning of “intentionally”. But I’m speculating.
TomM;
Apparently “East is East and…….” You say
Churchillian, I say Orwellian. It is this impasse
that most threatens the political future of america
and it saddens me as well.
However, you have made an honest attempt to read
my words and assess their merit. I can do no less for you.
“Suppose the FBI or any domestic law-enforcement operation wishes to wiretap a suspect. They obtain a warrant, and tap the suspect’s telephone. Are the Fourth Amendment rights of the people on the other end of all of those recorded conversations automatically violated by recording in that way? Why or why not?”
I assume your quesion is broad and outside FISA.
The answer from my perspective is; Did the
indirect party receive independent wiretaps
as a result of that communique’ which arose
out of conversations with the direct party?
If so, was it the result of transcribed conversations which indicated some complicity
in the illegal activities of the direct party?
Or, was there merely guilt assigned to indirect
party due to silence or failing to verbalize
distance from such activities?
You see, much is left to the interpretation
when assessing these matters. I do not have
the confidence of some, who are willing to
subjugate themselves to the secret and often
unknown activities of those who have limited
oversight of their acitvities. “Absolute power
corrupst absolutely”.
No, you misunderstand the question. The question is a matter of application of law: if one obtains a warrant to wiretap a suspect’s residence, for example, how are the Fourth Amendment rights of the people on the other end of the multiple conversations protected? Does the agency have to get a warrant for all of those that it listens to?
Ace;
Makin’ real progress here.
Surveillance is legal, therefore OK with you
Can I assume that surveillance (semantics aside,
wiretaps, video, whatever) that is illegal,
is NOT OK with you?
Can I assume that surveillance (semantics aside,wiretaps, video, whatever) that is illegal,
is NOT OK with you?
Wiretaps, yes
Video, more of a grey area depending what you’re doing exactly.
Otherwise, yes I’m not for warrantless wiretaps that would be illegal per evidentiary standards.
In all its pure, uncut glory, Semanticleo–this is why we cannot possibly take any more of what you say as an even halfway attempt at an honest argument:
Emphasis added is mine.
What the hell?
And your evidence for this is…the French blowing the crap out the Rainbow Warrior so long ago that MTV still played videos?
Yes, we all know you think Bush is angling for a new Mt. Rushmore engraving with himself first among Stalin, Mao, and Hitler in the dictator pantheon…give it a rest. It’s just tiresome.
What does absolute paranoia do?
I do not have the confidence of some, who are willing to subjugate themselves to the secret and often unknown activities of those who have limited oversight of their acitvities. “Absolute power corrupst absolutelyâ€Â.
So you were in hysterics over Echelon then, correct?
Or this?
Why did none of this stuff get a rise out of you when a Democratic President was in the White House arguing he could counduct warrantless searches??
At what point does ‘positive’ thinking
become delusion? I mean it is just sooooo
crazy to suggest the danger of the extinction
of civil liberties. Best of luck.
Unhinged, ludicrous, asinine, silly…
But, yeah crazy pretty much fits.
Is Semantico writing in blank verse?