Drawing on remarks from both the President and the Attorney General yesterday—and on the responses I was reading around the blogosphere—I began to suspect that the divisions we’re seeing in the debate over executive authority to authorize domestic surveillance is a function not merely of politics, but also of the paradigm through which one choses to view the authorization itself. Those who are committed to the civil / criminal paradigm—while in some cases conceding that the President probably has the Constitutional authority to authorize wiretaps —nevertheless seem to believe, with profs Jonathan Turley and Orin Kerr, that it is likely the President has admitted to committing a federal crime (which, to some particularly rabid partisans, rises to the level of an impeachable offense). Those, however, who are committed to the wartime / military paradigm believe, along with AG Gonzales and prof Paul Rothstein, that the President’s actions were both Constitutionally and statutorily permissible , that FISA was (theoretically, at least) inapposite, and that the bipartisan resolution authorizing the use of force against al Qaeda—tantamount to a declaration of war—gives the President the war time powers that allow him to circumvent certain FISA requirements (we know, too, that he did “follow requirements for legal review of his orders by consulting with the NSA Legal Counsel and the U.S. Attorney General”). Which is not to say that he did circumvent FISA, itself containing built-in exemptions, and—in at least some readings of the law¹—makes much of the criticism we’ve been reading to this point dubious, insofar as one’s status as a US Person changes to agent of foreign power once it becomes clear that citizenship was obtained or held for fraudulent purposes, including acting in the interests of a foreign power (which al Qaeda was classified in US v Bin Laden). Meaning the President never authorized spying on American citizens, because American citizens became agents of foreign powers under the law, and so fell under one of the FISA warrantless exemptions [update: opposing view here].
Even without this reading of the law, however, we would need to know the identity of those who were surveilled in order to know whether the President broke the law under FISA—a point allowed by Kerr in his analysis. Further, because we don’t know how the monitoring was actually done, there are several scenarios in which the technology itself might have forced the President’s hand, as the FISA provisions never foresaw the particular means of monitoring. From commenter MayBee:
[…] An ex-NSA agent on CNN speculated this program was most likely an automated system, generated from a communication from a known terrorist and branching out to collect all the numbers that communication reached, then the numbers those numbers called, and so on. Hundreds of communications (or maybe just telephone numbers) intercepted, not all listened to. But too high volume and too instantaneous to make warrants feasible for each.
Just as a warrant wasn’t issued for all emails in Echalon, a warrant wouldn’t be issued for all of the communications in the new program. Graham could easy see this as a new technology rather than a new policy.
Had this been presented as ‘survelliance of terrorists on American soil’, politicians would have no reason to CYA. But throw in the words “Spying on Americans” and the denials are going to crawl out of the woodwork.
(For additional hypotheses about operational reasons for avoiding the FISA process, former Navy Seal Matt Heidt offers an explanation here; see also, Defense Tech [update: more here], and Charles Martin, who spent a number of years doing operational intelligence collection and analysis systems, including classified intel analysis for the DoD).
Nevertheless, in the war time paradigm, the President is authorized to
use all necessary 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 […]
…and, as Leon H points out:
[…] it would seem rather strange that the use of wiretaps against known Al Qaeda agents would not fall under “all necessary force.” As AGAG pointed out in the presser, the SCOTUS has already construed that authorization of force very broadly, to the point that they read it to imply powers not explicitly contained in the authorization even when such a construction directly violated another Federal Statute, 18 U.S.C. 4001(a). (See Hamdi v. Rumsfeld, 542 U.S. 507). If the SCOTUS authorized the detention of a United States Citizen in direct contravention to the provisions of 18 U.S.C. 4001, they would certainly authorize the use of wiretaps in the gathering of foreign intelligence, when such authorization might questionably violate 50 U.S.C. 1802.
Orin Kerr is dubious about this argument; and while he is much more qualified than am I to make that determination, I’m at a loss to see how—because the information gathered was never meant to be used as evidence in a criminal prosecution—the courts would not allow that the gathering of the intel is in keeping with the President’s broad authority.
Behind the scenes, I’ve received several messages from intelligence folk who assure me that had the NSA had any concerns at all about the legality of the program, the President would not have been able to do what he did—and that the leak most assuredly did not come from that organization (not that it matters: the newly emerging spin from many on the left is that the Bushies shouldn’t “demonize” or “bully” the “truth tellers”; perhaps Russ Feingold, once he’s done whittling away at our free speech rights and damning the monarchy, can put in a spirited defense of Scooter Libby). And so the question becomes, what do the Dem partisans have to gain by making an issue out of this?
In my estimation, they have backed the wrong horse: sure, the idea the Republicans are “taking away our privacy” and “spying on our phone calls” seems, at first blush, to be a powerful cudgel with which to damage the President. But such an argument relies on citizens being too lazy to dig deeper—and on a President unwilling to step before the cameras and make his case forcefully. In other words—the President of the last few months, not of the last few weeks.
Bush has made it clear—and his administration is making sure to get the word out—that those “targeted” for monitoring had ties to actual al Qaeda terrorists, and that ordinary Americans weren’t being monitored; which argument is forcing the progressive Dems and civil libertarian purists to retreat to hypotheticals, and accusations of misuse that they can only charge, but cannot prove. It is likewise forcing Democratic leaders to claim, once again, that they were briefed (although some are arguing they were not), but that they came away from the briefings confused and unable to stop the evil Bushies from forcing their will on the hapless good guys—neither of which, I think, will sell to the American people.
As Tom Maguire has pointed out, the New York Times, who first broke the story (over a year ago—but hey, who’s counting?), is now helping the Dems massage the narrative by walking back some of its earlier revelations:
David Sanger of the NY Times wrote this on Sunday in paragraph eight:
Mr. Bush’s public confirmation on Saturday of the existence of one of the country’s most secret intelligence programs, which had been known to only a select number of his aides...
On Friday, the Times story included a much wider circle, including Congressional leaders and the judges who oversaw the FISA program. Now we are down to Bush and a few of his select aides. By Wednesday, I bet it will be George wearing the headphones while Laura transcribes the tapes.
But no matter: when all is said and done, I think the American people—particularly when they hear that the program has actually thwarted attacks—will conclude that of course the President acted appropriately, and that, because he went through the proper requirements for legal review—was acting in good faith and in the best interests of the country he was elected to defend.
As Bullmoose notes:
[…] as of yet, there is no clear evidence that [the Bushies] broke the law. Lawyers will endlessly debate the legitimacy of the Administration’s citing of the Al Quaeda force resolution for authorization. Moreover, there was a legitimate concern that an open debate about modifications in the FISA law could have alerted our enemies that their calls were detected. And does anyone seriously believe that the targets of these calls were anyone else than potential security threats? There is absolutely no evidence that this was a “Nixonian” enemies list witch hunt.
Now that the controversy is out in the open, Democrats and Republicans should work together to improve and clarify the law rather than seeking retribution for past misunderstandings. The bottom line should be strengthening our national security while maintaining our liberties to the fullest extent possible.
What we do know is that we have not suffered another attack on the Homeland since 9/11. That is a miraculous fact. And President Bush should be applauded for protecting the country rather than excoriated, to say nothing of impeachment which is on the lips of some Democrats.
We also know that, while there have been excesses here and there, our fundamental freedoms have not been infringed since the first massive assault on the homeland by foreign enemies since the War of 1812. Certainly, we have not suffered an abrogation of our liberties anything near the scale of Lincoln’s suspension of habeas corpus or FDR’s relocation camps.
We are at war with a Jihadist enemy who wants us and our families dead. It is not clear that some of our elites recognize that fact or care any more. And some on the left fear that President Bush is a greater threat to our nation’s security and liberties than the Jihadists.
If the ACLU is upset about the Patriot Act, fine, It is their job to push the outside of the envelope. But it is another thing when a Party almost unanimously obstructs its reauthorization over minor objections after significant compromises have been achieved. And it does not provide any solace that Larry Craig and John Sununu were on the Democrats’ side.
When it comes to the War Against Terror, there is no room for right wing or left wing libertarianism. Of course, we should guard our freedoms and be vigilant for excesses. But, our robust democracy is not endanger. If international phone calls by terrorist suspects were monitored, good and fine. What is in question is whether some of our elites continue to believe that we are actually at war with a devious foe. Memories of 9/11 are fading and many act as if the threat has gone away.
On the political front, in the past month, there has been a systematic effort at self-branding by the Democratic Party, and it is not good. From the defeatist Iraq talk to the obstruction on the Patriot Act, the donkey is effectively “rebranding’ and “framing” itself as weak on national security. George Lakoff should be proud! Rather than the 2006 election being about the GOP’ s weak ethics, it may be about the Democrat’s anemic defense credentials.
We live in a period that is similar to the Cold War in that there is an over-riding national security threat. The fundamental political and policy question is which party will the American people trust to defend the country and their families?
[My emphasis]
One of the concerns Americans have for the future of the country is the perception of an activist court taking away our democratic rights by judicial fiat. Tied to this is the idea that lawyers run the country, and that the most dangerous threat to our freedoms come not from elected politicians, who can be replaced, but rather by attorneys and judges.
The Dems are putting themselves in a position just now to argue that what will no doubt be seen as legal technicalities—and those points are in dispute, even!—should have prevented him from taking steps necessary to protect the homeland, steps that DID in fact protect us. And by extension, they will be arguing that as a group they would have worried more about a contentious legal battle over a now unworkable statute (getting warrants on automated phone chains—which it is not clear were even legally necessary, provided the AG gave notice—would have been impossible) than they would have about taking bold actions to protect the country, knowing that we are indeed at war.
I’ve said it before, but it bears repeating here: just because some Dem elites don’t believe we are actually “at war”—preferring instead to think of terrorism as essentially a law enforcement problem that can be well-handled within the purview of the criminal justice system—that doesn’t mean we are not, in fact, at war.² Otherwise, their authorization of the use of force against al Qaeda could be seen as cynical at best and disengenuous at worst.
As Dale Franks argues in his rebuttal of fellow QandA contributor Jon Henke:
Where the problem would come inâ€â€and I think it’s the only area that would be problematicâ€â€would be if the president was conducting the warrantless surveillance of citizens who could not, in fact, be shown to have contact with hostile foreign powers. Or, conversely, if these surveillance wiretaps were to be introduced as evicence in a criminal proceeding. In that case, I think the warrantless wiretaps would certainly have to be thrown out.
Absent that, it seems to me that the relevant case law, while not precisely on point, gives the president an excellent argument in support of his actions to conduct such surveillance, purely for intelligence-gathering purposes.
On several fronts, then, the legal question is murky (and the paradigm you choose will affect the degree of murkiness you see)—but there should be no doubt that, wherever you come down on that front, simply that there is a compelling legal argument to be made on the President’s behalf, coupled with the fact that he acted on the advise of counsel, engaged in 45 day oversight reviews with the FISA Court, and briefed congressional leaders, will be enough to militate in the President’s favor. When all the facts come out, the Dems will look either weak or confused—and worst of all, they will have tied themselves, in the public mind, to the leakers.
Which is why today we are seeing such a furious attempt to paint the leakers as “truth tellers” combatting the excesses of a rogue administration.
But it won’t fly. And once again, the Democratic leadership has painted itself into an undesireable corner. Should they press the issue, things will only get worse, I predict—unless, of course, the Administration truly was misusing the surveillance for unrelated domestic purposes, an idea that depends on a wide ranging conspiracy that only takes place in the minds of the most feverishly deluded anti-Bush progressives.
****
Great roundups on the subject from Michelle Malkin, Glenn Reynolds, and Tom Maguire.
More legal discussion from Marty Lederman and Ann Althouse.
See also, the American Thinker [which harkens back to the Carter EO for electronic surveillance I noted previously]; for additional background, refer back to this earlier post.
related: Dean Esmay (on Rockefeller); neo-neocon (on the intelligence “wall”).
And here’s Byron York, from “Clinton Claimed Authority to Order No-Warrant Searches”:
In a little-remembered debate from 1994, the Clinton administration argued that the president has “inherent authority” to order physical searches  including break-ins at the homes of U.S. citizens  for foreign intelligence purposes without any warrant or permission from any outside body. Even after the administration ultimately agreed with Congress’s decision to place the authority to pre-approve such searches in the Foreign Intelligence Surveillance Act (FISA) court, President Clinton still maintained that he had sufficient authority to order such searches on his own.
“The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes,” Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, “and that the President may, as has been done, delegate this authority to the Attorney General.”
“It is important to understand,” Gorelick continued, “that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities.”
Executive Order 12333, signed by Ronald Reagan in 1981, provides for such warrantless searches directed against “a foreign power or an agent of a foreign power.”
Reporting the day after Gorelick’s testimony, the Washington Post’s headline  on page A-19  read, “Administration Backing No-Warrant Spy Searches.” The story began, “The Clinton administration, in a little-noticed facet of the debate on intelligence reforms, is seeking congressional authorization for U.S. spies to continue conducting clandestine searches at foreign embassies in Washington and other cities without a federal court order. The administration’s quiet lobbying effort is aimed at modifying draft legislation that would require U.S. counterintelligence officials to get a court order before secretly snooping inside the homes or workplaces of suspected foreign agents or foreign powers.”
In her testimony, Gorelick made clear that the president believed he had the power to order warrantless searches for the purpose of gathering intelligence, even if there was no reason to believe that the search might uncover evidence of a crime. “Intelligence is often long range, its exact targets are more difficult to identify, and its focus is less precise,” Gorelick said. “Information gathering for policy making and prevention, rather than prosecution, are its primary focus.”
Think Progress responds. An implied response to Think Progress is offered here.
update: More, from INDC Journal
…and the WSJ, “Thank You for Wiretapping”
****
Follow-up post here.
Lots more here, from Cassandra at Tigerhawk; and Jay Reding has a very informative post, and in his comments, notes in response to the FISA 72 hour grace period cited by critics arguing the President didn’t need to circumvent FISA (if in fact he did, in certain case):
[…] at Hour 73, you’re screwed. The FISA process takes a lot longer than 72 hours just to get a filing into the FISA Court, which simply takes too long. Furthermore, a FISA warrant applies only to a number not a person. A terrorist who switches from one disposable cellphone to another (which al-Qaeda does) would then require a separate FISA warrant.
Jay also points to this Ars Technica piece discussing one potential program that may be troubling previous precedural requirements.
****
Hilzoy’s piece (noted above) was a critique of the James Robbins piece in NRO I’ve noted on several occasions as one possible way to read the FISA exemptions.
I emailed Mr. Robbins about his piece and Hilzoy’s post and received the following replies:
[…] I agree with the point that lacking specific knowledge of the activities in question, it is difficult to apply the law. I note that the WH is not trying to use section 1802 of FISA anyway, and from the information available (to the extent it is accurate) the NSA may have been engaging in activities covered by another part of the law (section 1843) which also has emergency provisions though not as broad as those to which I referred in my piece (only a 48 hour warrantless window instead of a year).
I think the debate over FISA sections 1801 ff. which I suppose my piece has generated (not to take credit) illustrates why the lawyers may want to use an Emergency Powers Doctrine argument—more room to maneuver. But I think personally it is wiser to peg actions to specifics. If you want to surveil without a warrant, use the law entitled “Electronic surveillance authorization without court order.” It’s a perfectly good tool in the war against terrorism.
And then the follow-up:
the 1995 Clinton Executive Order that Drudge posted authorizing warrantless physical searches—which is a little more invasive that just surveillance—cites 50 U.S.C. 1801 ff. Wish I had known that before I went to press, seems highly relevant and supportive.
Drudge also posts the Carter EO linked above and in my previous posts on this topic.
And one final email:
Another example of the firmly established precedent for warrantless surveillance against agents of a foreign power inside the US—Ronald Reagan’s landmark Executive Order 12333, which states in section 2.5, “The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order.” Carter ordered basically the same thing before Reagan, and Clinton after him.
All are based on 50 USC 1801 ff.
Also, just found this, an FY 2000 report to Congress by the NSA on “Legal Standards for the Intelligence Community in Conducting Electronic Surveillance”—highly relevant, wouldn’t you agree? Here is the operative section:
B. The Legal Standards for Intentional Targeting of the Communications to or from United States Persons.
(U) The legal standards governing the targeting of U.S. persons in the United States are set forth in FISA and in Attorney General minimization procedures mandated by FISA. With respect to U.S. persons outside the United States, section 2.5 of E.O. 12333 establishes the standards, and the Attorney General-approved procedures required under E.O. 12333¹4; provide the implementing guidelines. The requirements in both instances include a finding, by a Foreign Intelligence Surveillance Court judge in the former case and the Attorney General in the latter instance, that on the basis of the facts submitted there is probable cause to support a finding that an individual is an agent of a foreign power.
If all this doesn’t satisfy my detractors then I don’t know what will. It is all consistent with what I wrote. I will say this—if I’d found the above paragraph earlier I would probably have just posted that on the Corner rather than write an article because it not only is from the Clinton era (hence counters this “King George” nonsense) but is the NSA’s interpretation, the very agency in question.
¹ From Carter’s EO 12139 (1979), EXERCISE OF CERTAIN AUTHORITY RESPECTING ELECTRONIC SURVEILLANCE: “1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General – is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.” Because in US v Bin Laden, al Qaeda was classified as foreign agents, the re-classification of citizens as “foreign agents” for the purposes of warrantless surveillance is not so farfetched, though, to be fair, this point is not being argued by the Attorney General. Additionally, as I noted in my follow-up post, the FISA Court Review supported the President.
Beyond that, however, the ruling seems to back the position Mr Robbins and I have taken—that US personhood is not absolute, and can shift and fall under FISA exemption (even if the President chose to argue the case by asserting executive power):
After a careful review of the briefs filed by the government and amici, we conclude that FISA, as amended by the Patriot Act,2 supports the government’s position, and that the restrictions imposed by the FISA court are not required by FISA or the Constitution. We therefore remand for further proceedings in accordance with this opinion.
The court’s decision from which the government appeals imposed certain requirements and limitations accompanying an order authorizing electronic surveillance of an “agent of a foreign power†as defined in FISA. There is no disagreement between the government and the FISA court as to the propriety of the electronic surveillance; the court found that the government had shown probable cause to believe that the target is an agent of a foreign power and otherwise met the basic requirements of FISA. The government’s application for a surveillance order contains detailed information to support its contention that the target, who is a United States person, is aiding, abetting, or conspiring with others in international terrorism.
[My emphasis]; see 1801 (f)
² I linked to Biden’s position above; Darleen provides additional support here. For an opposing view, see Left Off Colfax, who examines the 1973 War Powers Resolution
Whatever the case may be, this “incident” could never be as bad as getting a blowjob in the Whitehouse!
Jeff,
Thank you, thank you, thank you.
While I have no doubt the usual suspects (Wadard, PIATOR, and cloudy) will come in and essentially say,”LALALALALALA BUSHITLER LAALALALALALA CHILLING EFFECT LALALALALA FASCIST LOSS OF FREEDOM LALALALALA!” your piece should convince everyone who reads it that there is a reasonable case to be made for the President, even if it doesn’t convince them the President didn’t commit a crime.
I’m constantly amazed at how far President Bush is wiling to go to keep Congress informed (advice and consent) and how few people understand the role of the three branches of government.
I also am amazed at Democrats’ and the media’s insistence on guilty until proven innocent for the administration while carrying water for known terrorists and madmen (Saddam, Ahmadinejad, etc.).
Or lying under oath about said blowjob. That was what bit Billy’s ass.
SB: eye
of the beholder
While the fever swamp of bushy mchitlerburton will no doubt consider this just awful, after the forceful statements of the President during the press conference, most people are going to hear “the dems don’t want us to listen in when people like Mohammed Atta calls Al-Qaida in Afghanistan.”
I don’t think that the average american really cares hows we get information if it saves lives, anymore than we get outraged that the cops beat up a child-molester. What plays in a ACLU fund-raiser dosen’t play in Peoria.
I find Kerr’s argument that the executive’s actions in this case fall under the border search exception persuasive. Anyone else?
I know. I hate it when people break the oaths they take.
This post in itself makes a strong point to no wrong doing. Thanks Jeff…..
TW:time: In I wish I had it………
Plus, look at the example Clinton set by his behavior. For a President to lie like that…
A truly excellant summation Jeff.
I’d just add two things about lacking some details ( necessarily so of course ) to really complete analysis. First, FISA itself defines electronic surveillance in such a way that who the target of the interception is makes a large difference in legality under FISA for interception w/o warrant.
Secondly, the collection of dialed numbers is a different thing under domestic Fourth Amendment law than the interception of the conversation itself.
Clearly we once again have a situation where technology has outstripped the law.
The front-page headline on Sunday from my local Daily Excuse for Murdering Innocent Trees:
BUSH INSISTS SPYING ON CITIZENS OK
The president made a quick, strong defense of his actions. However, the usual suspects are counter-spinning for all they’re worth. Given the MSM’s damn near autistic ability to repeat the same simplistic, wrongheaded thousands of times without even hearing any facts to the contrary, they may yet carry the day. This story is still very, very far from finished.
Errr… wrongheaded story. Yes, that makes a little more sense.
T/W: “always.” PIMF. Always.
I’m in agreement with monkeyboy and scotch‘s comments. The legality of this announcement can and will be debated. But it strikes me as highly unlikely that Bush would admit to federal crime on national TV, though BDS sufferers see this as their next best hope to bring him down. Whatever.
What I did hear Bush saying was that in the wake of 9/11 with 18 terrorists training and planning for years within the US, he’s aware and he’s serious about rooting out other terrorist cells operating here.
Anyone who believes those 18 were the only ones then or now, is seriously deluded. This type of intelligence gathering strikes me as not only common-sense, but absolutely necessary to protect US citizens from a known and immediate threat. So as you say, Jeff, the Dems are going to have to twist themselves into tendon-endangering poses to sell this as bad for the general public. Their only avenue is to say it was illegal, and thus we’re back to interpreting executive powers.
Jeff:
It’s interesting (and revealing) to note that the Clinton Administration also argued that the inherent powers of the president permitted warrantless searches (physical as well as electronic) for intelligence gathering purposes.
This was, of course, prior to 9/11 and before Congress had authorized the president to use military force against al-Qaeda and its agents.
See Judge Sands’ ruling in United States of America v. Usama bin Laden 2000. This was the trial against two Kenyans who were al-Qaeda agents involved in the African embassy bombings.
Granted this was a district court ruling on whether evidence acquired during a warrantless search could be excluded. But during the proceedings, the Clinton Justice Department argued that searches for intelligence gathering could be conducted without judicial approval.
Additionally, as Byron York has shown, assistant AG Gorelick argued (in 1994) that the inherent powers of the executive branch allowed these searches for intelligence gathering without warrants.
Why the NY Times didn’t include (anywhere) these interesting tidbit mystifies me (okay, not really; but I’m practicing up on my faux surprise for Christmas when I get another stupid shirt that I don’t need).
And third, Jonathan Alter has just gone over the edge (admittedly, it was a very short walk).
SMG
FITZMAS IS BACK!!!
Why DOES it always seem that the lefties come down on the side of enemies of the state?(stalin, ho chi min, pol pot, castro, ortega, etc., etc. come to mind right off the bat) Seems like they could throw a dart and pick the correct side occassionally…
We are continuing to pay the price for those in the 50s, 60s and 70s who abused intelligence-gathering actions. While checks and balances were put in place to help curb those abuses, many barriers were erected that seem to ensure some actions are never taken.
To paraphrase Jeff’s second sentence, should we act like it is 9/10 or after? Those that complain the loudest that dots weren’t connected seem to be the most determined to hamstring the current administration from even collecting the dots.
The President is not above the law, but I’m willing to grant him the gray areas if it keeps my ass from getting blown up while I’m at work.
A few points:
One, there is no reading of FISA that authorizes the Administration’s program. The article you linked to at NRO suffers from the same definitional problems that arguments forwarded by Al Maviva and this site do—that once someone is determined by the President to be an agent of a foreign power (like AQ), they no longer have “US person” status. The statute does not support that reading. Also, warrantless surveillance inside the US under the statute requires special authorization and reporting procedures by the AG. There is no evidence, or claim by the administration, that they have gone through that process. The fact that even AGAG has not argued that FISA, by its terms, allowed the surveillance at issue should warn you away from all defenses based on statutory technicalities.
Two, Hamdi is exceptionally weak support for reading the AUMF to authorize domestic surveillance. Hamdi was captured on the battlefield in a different country. Moreover, 8 judges ruled that though Hamdi could be detained at first blush, he was entitled to *judicial review* of the legitimacy of his detention. That ruling specifically rejected the Administration’s argument that it was sole arbiter of the legitimacy of the detention of American citizens. This NSA program is premised upon a similarly specious argument: that the Administration need not subject to judicial review its own, secret determinations of which US citizens have “clear ties” to AQ *or* whether the surveillance being conducted is “reasonable” under the 4th amendment. The Constitution is nothing if it does not prevent a unitary branch of government from making this decision without any oversight whatsoever.
Third, what about oversight? You claim that Congressional leaders were briefed on the program. They were also not legally allowed to divulge anything they heard to their staff, their lawyers, or their colleagues. At least one, Rockefeller, noted his contemporaneous objections to the program, citing in particular his personal inability to properly review it without the aid of experts and staff. This is not oversight. Also, putting a policy into place, and merely telling Congresspersons about it later on, is not oversight. “Oversight” implies the ability of some neutral person making sure that *each and every decision* to spy on a US person is justified. In the US surveillance arena, Congress determined—after pervasive abuse for many decades—that FISA would regulate the Executive’s ability to spy domestically by granting *oversight* to special FISA judges. Heck, Congress criminalized any spying not conducted according to FISA and the criminal code! The Administration’s program specifically avoids the required oversight.
Fourth, Bush defenders should be very careful about buying into the AGAG/Yoo theory of plenary Article II war-making powers. Under this theory, any President with an authorization of force against any country or enemy whatsoever could engage in unfettered domestic surveillance, without any oversight whatsoever. Under this theory, any war that potentially involved the presence of enemy agents within the US could be used to round up anybody and everybody by Presidential proclamation under his Article II powers. Plus, the Supreme Court has unequivocally rejected any such Article II argument; the steel seizure case makes clear that the President cannot invoke his war-making power to override duly-enacted Congressional statutes. Otherwise, Bush would be King, not President.
One last thing—so many Bush defenders seem to take it at face value that the NSA was only spying on persons with clear ties to AQ. How do you know this is true? Why do you trust Bush completely? Is it simply because you agree with his political agenda? Because he has taken a tough line against the terrorists? Isn’t some skepticism in order? If not, why not?
MF: Because he’s the President! And without him Saddam would be flying more planes into our buildings!!!!
One quick thought on the York piece – if Gorelick was arguing that Clinton had the right to authorize whatever warrantless searches he wanted, in the interests of national security, then it makes a lot more sense that she and Reno were thinking about a “wall,” and conservatives should be thinking about what kind of wall we need too.
As two hypos, let’s assume that the NSA, while listening in to a couple suspected associates of terrorists, finds out, through warrantless wiretaps, that (1) one of the suspected associates is guilty of a comparatively trivial crime (let’s say he’s a petty college drug dealer, or is trading movie bootlegs online); and (2) one of the suspected associates is guilty of a comparatively serious crime (e.g., she’s making child porn or planning a murder for hire). Does the NSA alert the FBI? If it doesn’t, does it just let the crimes happen? If it does, why don’t we just scrap the Fourth Amendment and be done with it (at least with regard to relatively unobtrusive searches, like wiretapping), as that would stop even more crimes?
MF —
Why do you take on face value Bush was spying on American citizens?
Again, you say the FISA analysis suffers from a defnitional problem; I’m not sold on this, but I say that point is moot anyway, because we don’t know who was targeted, or even how the monitoring was done. Competing pronouncements muddy things further(see Carter’s EO for electronic surveillance).
Second, yes, I believe, in a time of war, in broad Article II powers—and I find the case particularly compelling in a war where we know one of the primary tactics of the enemy is to embed enemy cells domestically to work between the lines of our criminal justice system. You say the case is weak for granting these powers(Orin Kerr might agree), but regardless, the President’s counsel did not.
The President reported to the FISA court every 45 days and briefed congressional leaders, as was required to meet legal review requirements; similarly, there are plenty of methods for disgruntled Congresspeople who were briefed to express outrage—including a closed session of Congress, or holding up legislation.
Third, Hamdi is only weak if you consider it in terms of criminal prosecution.
The point being, that the legal questions are certainly debatable, which means what we’re left with is a balance between action vs. solicitousness.
For reasons outlined in my post, I believe those arguing from the criminial justice paradigm are likely to lose this political fight.
Checkers,
Finish yourself off man. Wipe off the spunk and get out of Mom’s basement. All this wang-beating on your keyboard produces is a jumble of meaningless bullshit. Don’t forget to zip up.
Snide-ass bitch.
something is “building” inside ol’ Checkers
You know, Jeff, you had me until this sentence. “I’ve said it before, but it bears repeating here: just because some Dem elites don’t believe we are actually “at warâ€Ââ€â€preferring instead to think of terrorism as essentially a law enforcement problem that can be well-handled within the purview of the criminal justice systemâ€â€that doesn’t mean we are not, in fact, at war.”
Emotionally, we might be at war, but not legally.
Read the War Powers Resolution of 1973, or just read my post from the wee hours of the morning for the thumbnail sketch.
I’m not in your Mom’s basement, honest.
That’s called a secret.
That’s called incompetence, I would recommend finding a competent replacement for Rockefeller.
And that is called an opinion. A rather absurd and naive one in my opinion.
SteveMG:
Surely you’re not missing the delicious irony of York’s article. Indeed, it’s interesting that Jamie Gorelick, Clinton Deputy AG, argued—wrongly, it seems, insofar as the homes of US citizens are concerned—in 1994 that the President has “inherent authority to conduct warrantless physical searches for foreign intelligence purposes.”
But what’s more interesting is where York found that quote: from Gorelick’s testimony in front of the Senate Intelligence Committee! A body of Congress! Out in the open, under oath! For the purpose of—check this—getting FISA changed!
You’re going to have to do better than this.
Deer Congerss:
I wan 2spy on amurcans, do u luv me?
check one:
yes___
no___
kthx
Chimpy
Some questions for the Gallery:
1)Would you feel better if you found out that the President held off monitoring connections made to/from a KNOWN terrorist comm node for two weeks so his staff could prepare the paperwork for FISA to rubber stamp?
2) Do you believe in your heart that NSA is NOT routinely monitoring any and all the electronic communications they can get their hands on, from whatever source?
3) Why is it, in your opinion, that ten years after their major rollout worldwide you still can’t get a cell phone that accepts and uses your favorite hard encryption protocol to protect it’s communication channels?
4) How far up your ass IS your head?
Off Colfax —
Noted your objection in a footnote and also an opposing view from another commenter.
Note the close proximity in which this story came out to the following story: F.B.I. Watched Activist Groups, New Files Show
Look for a deliberate conflation of the two stories, so that the general sense becomes that the warrantless wiretaps were on domestic protest groups.
Hey, you can’t prove it didn’t happen!
Already happening, eakawie.
Cheezer-
If you were in MY mom’s basement, she’d have ripped off your little dauber and shoved it down your throat by now.
she’s “strong”.
Jeff —
Well, the NY Times article that blew the cover off this stated in the first sentence that “Americans” were being surveilled, and the administration has not once denied that they were indeed targeting US persons as defined in FISA. I think it’s clear that this would not be a controversy at all if none of the targets were American citizens. I don’t really think you’ll find anyone who is opposed to spying on non-US persons who are thought to have AQ connections.
With regard to the technical reading of FISA: you can try to gum this up and pretend there’s a legal question, but there’s just not. If there were, the administration would be arguing as much. When we get into the hearings next year, this will become quite clear.
Hamdi provides no support for reading the AUMF to provide implicit authority for the President to override FISA. Yet AGAG cited Hamdi for support on this point. Again, Hamdi doesn’t help or hurt my case that the President has broken the law. It does, however, NOT help your case that the AUMF somehow authorized an end run around FISA. That’s all Hamdi is relevant to in this conversation.
Lastly, you are not arguing for “broad” Article II powers. You are arguing for “unlimited” Article II powers. Make no mistake about it. There is no logical stopping point—if you have a war resolution, and you have a President who unilaterally declares that what he is doing will help win the war, then he can do whatever the hell he wants, including engage in activities that would “otherwise” violate citizens’ consitutional rights, say, e.g., warrantless surveillance.
You argue that the President is scot free because his lawyers said it was kosher. Who cares? I’m a lawyer, and I try to use the law as best I can to get my client what he wants. Doesn’t mean I’m “right” on the law. Also, this is still a recipe for absolute power. If you’re the President, you can surround yourself with lawyers who will tell you that you can anything you want under your Article II powers, and then when you do, you can say, “My lawyers told me it was OK!”
Also, I don’t know what you mean by “legal review requirements.” I’m talking about ongoing OVERSIGHT—the very point of FISA. I know I got poo-pooed by B Moe, above, but I’m pretty darn sure that every American citizen has a constitutional right to know that a judge stands between himself and an Executive who wants to tap their phone calls.
This is the law as it stands right now. You want to change it in this “age of terrorism”? Be my guest. But don’t try to do it in secret, by Presidential fiat. No President has the power to unilaterally abridge my constitutional rights. This is not, contrary to your assertions, a close legal question, on either the FISA or Constitutional front.
Jeff, your side needs to take a step back from your visceral attachment to Bush and decide where your arguments for plenary war-making power can—will?—lead. This is not about Bush. It is not about Democrats or Republicans. It is about whether this is a government of men, or laws.
Jeff,
Not sure if you linked the ed page from the WSJ’s take on this today- the title to the editorial says it all.
[url=”http://online.wsj.com/article/SB113503784784326861.html?mod=opinion_main_review_and_outlooks” target=”_blank”]”Thank You for Wiretapping
December 20, 2005; Page A14″[/url]
(subscription required I believe)
Here’s the relevant parts-
and
I’m with the WSJ eds on this.
According to the First Circuit Court of Appeals, we are legally at war in Iraq.
I’m not an attorney, but although the case wasn’t brought regarding Afghanistan, the Taliban or Al Queda, I’m willing to bet that the same arguments made by the court are applicable to the resolution authorizing use of force against Al Queda.
Yours/
peter.
According to Hayden formerly of the NSA the shift supervisors at NSA made decisions to monitor and the context of the decisions was recorded and reviewed by higher ups.
In my opinon, this should allay any fears that either the shift supervisors or political appointees are engaged in inappropriate spying on political opponents or ordinary citizens.
Pres. Bush would have been derelict had he not authorized the program. Its sad that members of Congress cannot summon the political will to modify FISA appropriately.
I want a judge protecting my phone as well. If, however, a terrorist who is being monitored calls me, then all bets are off as far as I am concerned, and that seems to me to be the situation we are discussing here.
One last post, to address Noah’s point:
That’s not oversight. All of those people reviewing the decisions of who to tap report to the President. “Shift supervisors” are not impartial, unfirable judges. And the record-keeping for review by “higher-ups”? Who cares? The whole program was secret, records can be destroyed, and the higher-ups still work for the President.
Just because you think that this President has appointed people who will do their job fairly and competently—and not spy on political opponents—it doesn’t mean that the program is legal, or good policy. The next President could be a crook, or worse.
And I find it hard to believe that if they had pressed hard enough, the Executive would have been unable to get the law changed in the aftermath of 9-11. The Patriot act passed with one dissenting vote in the Senate—and it included changes to FISA.
That tells me that there’s more going on here that meets the eye—and I don’t think its fair for folks to defend the program as “reasonable” or say that Bush would have been “derelict” if he hadn’t implemented it—when they know absolutely nothing about what it does, how it works, or who it targeted.
Then why is it fair to attack it?
The same thing can be said by those attacking the program and the Administration. We do not have the facts. Kerr, in his analisis (a good one I might add) admitted as much. So maybe let’s see where it shakes out.
One thing that should be done as soon as possible though is a DOJ investigation of who leaked this program. Let’s root out those with clearances that can’t keep their mouths shut.
Do you have some evidence, MF, that the surveillance in question was either 1) done on persons without ties to AQ or 2) US citizens who were not agents of [some] foreign power? Do you have some further evidence that this surveillance on US citizens was not court authorized?
Some skepticism is certainly in order – but it’s skepticism of the repeatedly disproven “Bush Lied!” mantra, of which this is merely the latest incarnation. You liberal twits have completely exhausted your credibility on a series of chicken-little arguments that have pretty much permanently given Bush the right to the benefit of the doubt – not you. But come up with some actual evidence – besides your let’s-throw-shit-on-the-wall-and-see-what-sticks approach, I mean – and maybe we’ll take another look.
But it’s perfectly OK to claim it’s “unreasonable” or “illegal” when you know absolutely nothing about what it does, how it works, or who it targeted, right?
What an ass.
The point is that the program is driven by intelligence gathering and that at some point that intelligence is acted on by non-political employees. The reviews by higher ups are to guard against those employees spying on ex-girl friends or some such. Its had to see where Bush has any thing to do with monitoring decisions at all.
Just kidding. One more, this time to B Moe.
Of course all bets are off if a terrorist calls you! In fact, the President can tap your phone immediately! I’m all for it. But, then he has to do is run it by a FISA judge within 72 hours and get a retroactive warrant. You’re a US citizen, and you have rights.
Yes, there’s paperwork involved, but nothing that can’t be completed within 3 days; and if the Executive wanted to, they could have asked Congress to eliminate some of the filing requirements to make it less onerous.
The point is—no one has adequately explained what was so special about the program that FISA wasn’t sufficient. Lots of web speculation that it involves data-mining techniques that are altogether outside the realm of “tapping” or the same legal world as that which requires warrants. If so, maybe it’s worth using, but the President does not have the legal authority to do so unilaterally. And until we know more about it, we can’t laud it as indispensable, simply ion Bush and Cheney’s say-so.
On the other hand, the Clinton administration reserved the right to conduct warrant-less searches for national security purposes without qualification! Bush has not claimed that right and has kept Congress informed.
So MF, you are saying that if Yoo’s outrageous opinion about the powers of the President during wartime were correct, then the Bush administration might start acting like … the FDR administration did?
MF: others have written that it can take weeks to get a ruling. Does invoking the 72 hour rule cut thru the bureacracy so that a ruling can be obtained within 72 hours? What if the process generates thousands of warrant requests in a short time?
Jeff: this is just a fan comment. What a superb post. Love the cyber equivalent of footnotes. Cheers! AE
I lied again. One last one to respond to the three of you who say I’m being hypocritical.
I can attack the program, despite not knowing everything about it, because it is ab initio illegal. The President has no authority to implement wide-ranging domestic spying programs outside the purview of Congress.
Look, I’m basing my critique on what is known about the program—through reports and the Administration’s own admissions. You’re defending the program based on its alleged efficacy and necessity—something that, since its secret, is unknown. That’s a big difference.
I base my arguments on the Times article and subsequent articles—which the Administration have not disputed as to the facts presented—and the legal justifications offered by AG Al Gonzales among others. Assuming that the times article describes the program accurately—and the Administration has not said otherwise—it seems like a clear violation of FISA. And although Prof Kerr, among others, has said that there might be technical aspects of the program which bring it outside of FISA, the administration has not made that argument either. So I’m assuming they don’t have one.
I’m also assuming FISA applies to the program because AGAG has specifically asserted that the AUMF was the “other” Congressional statute by which the program was authorized, thus satisfying FISA.
Because AGAG’s legal arguments are seriously flawed—and, taken to their logical extreme, even dangerous—I’m criticizing the notion, put forth by Jeff among others, that this is muddy legal terrain. I don’t think it is—heck, even the cautious Prof Kerr said he believed the program violated FISA.
I’ll stop now. Thanks for the responses.
And you expect them to explain how this program works?? Already enough damage done without revealing the mechanics of this operation.
It is your opinion that the President does not have the legal authority. That is now in dispute. Kerr says he does. All the high price legal talent in the employ of the alphabets (NSA, WH, CIA, DIA, etc.) also said he does. They disagree with you. My money is on them, because…..they do know how the program works and what the mechanics are.
I forgot to wear my tin-foil hat today, and was just wondering if maybe the leak problems and obvious antagonism POTUS has been facing from the intel community may have contributed to some of these extraordinary measures? And maybe they didn’t ask Congress to change the rules because they didn’t want it broadcast to the four-corners of the universe in the inevitable political grandstanding that would ensue?
Clinton also reserved the right to review the FBI background checks of people no longer serving in government and to perform IRS audits of critics.
That was done—with little or no notice by the press—yet I’m apparently expected to get screaming mad over the possibility that the NSA listened to a phone call not directly related to al’Qaeda. Now, this is not an attempt to excuse political spying because Clinton did it. It’s a full-armed finger-pointing at the hypocrisy of the people who think we should be outraged—outraged!—over the accusations against Bush, yet were silent or even satisfied with the excuses the Clintons gave.
That many—and particularly people like Alter—were apparently OK with political spying when it was against “Repuglicans” but are now upset over the eavesdropping on those associated with al’Qaeda says a lot to me about who those people consider dangers to the country.
But only if you’re a US citizen – again, MF, where’s your evidence?
No, the point is, no one has explained why the restrictions in FISA would apply in the first place. The President does have the unilateral legal authority to surveil foreign agents without court approval. It’s only under your bad faith scenario that he needs FISA approval in the first place. Again, some evidence of Bush’s alleged misconduct would help your argument – for instance, an actual wiretap on an actual US citizen not acting as a foreign agent. Failing that, your argument is quite simply wrong.
I’d rather have a judge standing between me and loss of property rights (talk about unreasonable seizure), but I’m afraid that judge is taking kickbacks from the developers.
Bmoe, your seemingly offhanded comment is actually very important in framing the discussion.
I want a judge protecting my phone as well.
And my 4th Amendment rights to protection from unreasonable search and seizure of evidence for use in a criminal proceeding.
If, however, a terrorist who is being monitored calls me, then all bets are off as far as I am concerned, and that seems to me to be the situation we are discussing here.
If a terrorist who is being monitored calls me, sounds like I’m a candidate for a reasonable and warrantless communications tap by the constitutional officer charged with protecting our borders if the intelligence obtained is to be used only for national security purposes and not in a criminal proceeding.
Those arguing the illegality of the program are making the implicit assumption that the intelligence gathering was being performed under a criminal justice model aimed at generating criminal indictments and convictions, a la the Clinton Administration, which would indeed generate 4th Amendment concerns. But those concerns are misplaced as the intelligence gathering is actually being performed by the Commander-in-Chief to track down declared enemies of the United States and, er, neutralize them, shall we say, in a time of war. There seems to be an awful lot of booksmart people, some who comment on this blog, who seem incapable of making such a distinction.
All I know is:
MF is an m-f’n lawyer and I want MF representing me when I sue Dairy Mart for video-taping my purchase of that bag of day-old white powdered doughnuts.
I gots rights.
Tim writes:
… Again, how? Because we haven’t been attacked on our soil since 9/11? Bear in mind that there was nearly a 200 year gap between foreign attacks on our soil of anything near that magnitude, and please tell me how you can conclude that the fact there’s been no attacks since is in any way the result of this particular policy.
So, for 200 years (notwithstanding Pearl Harbor and the War of 1812), we’ve had enemies that have declared war on us, and that have been actively trying to attack our cities?
Illustrative of where you stand at least, at least. Just don’t be surprised when you don’t get many people to stand there with you.
Of course in order to adopt the view that the program is constitutional one must adopt a view of Presidential power that liberals don’t like when a president they hate is in the WH.
So I am hoping that the issue gets to the Supreme Court so I can win a lot of sucker bets off of liberals!!
Tim,
you wrote-“How can a self-described conservative support removing checks and balances, allowing the executive branch to assume whatever power it wants, ignore (presumably) any law, without any oversight? This flies in the face of the Constitution Bush swore he’d uphold.”
First of all, as has been stated a gazillion times, Bush was simply carrying out what had begun under Clinton so to point fingers at Bush for “removing checks and balances” regardless if that is even true is disingenuous.
Second, Bush did have oversight, and repeatedly told members of congress what he was doing. If he was doing something wrong, then the members of congress who knew about this are responsible for not blowing the whistle sooner.
And third you ridiculous statement that “there was nearly a 200 year gap between foreign attacks on our soil of anything near that magnitude” ignores things like the first attempt to bring down the WTC in 1993, combined with multiple attacks outside our soil on Americans both civilian and military.(Pearl Harbor- hello?) Not to mention the rabid blood oaths sworn to kill americans wherever they stand by Al-qaeda and their cronies.
You think it’s a coincidence that there haven’t been anymore attacks since 9/11?
On the other hand, the Clinton administration reserved the right to conduct warrant-less searches for national security purposes without qualification! Bush has not claimed that right and has kept Congress informed.
Not only did the Clinton Administration – to no outrage from the press or Democrats – claim a right for warrantless searches, they actually conducted warrantless searches. Again, to no outrage or criticism from Congress or the press.
In 1999, the Clinton Administration searched the homes – without warrants – of two Kenyans who were suspected of involvement in the embassy bombings. This search was undertaken in Kenya but one of the two Kenyans, an American citizen, argued for suppression of evidence since the search was not approved beforehand by a judge.
The Justice Department argued that the searches were for intelligence purposes and because of the inherent powers of the presidency did not require warrants. They said:
[S]earches conducted for the purpose of
foreign intelligence collection which target persons who are agents of a foreign power do not require a warrant.
Additional information is available here:
http://www.law.syr.edu/faculty/banks/terrorism/dummyfl/binladen_12_19_00.pdf
The fact that Gorelick 5 years earlier testified during open hearings on the FISA law that the Administration had this inherent power is, of course, meaningless. After alleging such a power, Congress did nothing to prevent or limit this presidential prerogative.
Bush is simply following on what a previous administration, albeit a Demoratic one, claimed they had the power and authority to do.
SMG
The President made the point unartfully in my opinion…people criticized the govt for failing to “connect the dots”. So the govt sees thru intel findings a tenuous connection between two dots. Isn’t it reasonable as opposed to unreasonable to make that search in order to establish the link in order to protect the nation? I think the Clinton administration had a point. Shit happens.
tongueboy,
I recognize the distinction, but reject both it and its relevance here. What’s at hand is prima facie a 4th amendment issue (and certainly it’s important on its own), but above and beyond that it’s an issue of the President’s ability to ignore federal law, and furthermore whether such an ability is consistent with the framework of our government as provided in the constitution. I can’t conceive of how it is.
The gist of the argument is that the system is designed with oversight in mind, and the President can’t ignore laws just because he wants to.
Furthermore, I reject the idea that the right to privacy can be violated as long as nobody’s going to be prosecuted. A right to privacy is a right to privacy, it’s not as if the government’s got a carte blanche to snoop as long as they’re “just collecting information.”
Shahid Alam – I missed an important word there, what I meant was “foreign terrorist attacks.” My point was that Jeff is using the fact that there hasn’t yet been a successful attack to support his conclusion that the policy worked. This is a fallacy, unless there’s other evidence. That’s all.
Tman – Even if the policy did start in some form under Clinton (speculation at best), I’d still reject it. It’s bad either way. As I’ve said elsewhere, a lot of what Clinton did was indefensible. Anyway, Bush is not “simply” continuing a policy – the idea that the executive can ignore federal statute in this regard is new, so far as I can tell. Otherwise, please cite a source, or provide an example of Clinton doing something similar and attempting to keep it secret?
Second point: No, the fact that Congress did not blow the whistle sooner does not somehow justify the practice. It can still be unconstitutional and unjustifiable even if Congress never said anything. I’m still unclear about exactly what was said or done or told to Congress, as reports are pretty contradictory, but Congress’s tacit support does not constitutional policy make.
And on the third: again, I made a mistake with the “foreign attacks” comment, that’s obviously false. I meant “foreign terrorist attacks on the magnitude of 9/11.” Which is true. The WTC attack in ‘93, the Cole bombing, etc were not anything near as substantial in terms of loss of life as 9/11. And no, I don’t think it’s a coincidence that there haven’t been more attacks since 9/11 – I’m sure a combination of policy changes effected that, but to suggest that this particular snooping policy is responsible for that is unjustified at best, and dishonest at worst. It’s the textbook definition of a post hoc ergo propter hoc fallacy.
But what’s more interesting is where York found that quote: from Gorelick’s testimony in front of the Senate Intelligence Committee! A body of Congress! Out in the open, under oath! For the purpose ofâ€â€check thisâ€â€getting FISA changed!
Excellent, you made our point without realizing it.
Gorelick testified in open hearings on changes in the FISA law that the president had inherent powers to conduct warrantless searches for foreign intelligence purposes.
And Congress does nothing to prevent such an act. They acquiesce through their legislative silence.
And five years later, the Clinton Justice Department actually conducts warrantless searches of an American in Kenya.
And they again claim that the President has the inherent constitutional power to authorize such actions.
And the court approves of that act.
And Congress and the press and Democrats express no outrage.
And the FISA law is again not changed to stop such warrantless searches.
And no one says that our liberties are in danger or are threatened by such unfettered searches.
Until Bush does it.
During a war. Against terrorists. After he’s authorized by Congress to use military force against these same foreign agents.
Why now? Cui bono?
SMG
But if we are talking about cell phones or email communications, is there really a presumption of privacy to violate?
Go easy on Tim, guys. His fifth grade class load is a little light on American history. He’ll catch up, eventually. Maybe. Well, at least feel sorry for the guy. Poor retarded fuck…
Tim,
you wrote-
Even if the policy did start in some form under Clinton (speculation at best), I’d still reject it. It’s bad either way.
Why? Because it allows the intelligence services the ability to find out about possible terrorist attacks before they happen? This is bad why? SteveMG gives an example of Clinton doing much worse and no one said a damned thing at the time.
No, the fact that Congress did not blow the whistle sooner does not somehow justify the practice. It can still be unconstitutional and unjustifiable even if Congress never said anything.
So, if CONGRESS and the JUDICIAL BRANCH can’t even say it’s unconstitutional, I’m supposed to believe you then? What’s the freaking point of having the government anyways? Wait, don’t answer that.
ANd your third point belies the problem with the pre-9/11 mindset. You feel that since the 1993 terrorist attack (which by the way was heavily financed and supported by um, IRAQI INTELLIGENCE-but never mind that) was “unsuccessful” in the sense that the damn buildings didn’t fall down that we should forget about it?
That is simply asinine and dangerous.
Thank god people like you aren’t in charge.
B Moe,
I certainly see no reason to think that there’s not a presumption of privacy in such cases. Last I checked, my email records were private, and so were my cell phone conversations and records, unless they were required by a warrant. Why would they be any less private then US Mail or telephones? Of course, they may have been snooped and I may not have been aware, but that doesn’t mean I didn’t have an expectation of privacy – just that it was violated without my knowledge.
sympathetic ear – hey, care to address any of my 8 points above, aside from the rhetorical slip that I corrected above? Ad hominem attacks don’t prove much, and if you’ve got nothing else to add I’d appreciate it if you stayed quiet. The adults are talking, and everyone else has been civil.
post hoc ergo propter hoc…I agree that it is a fallacy to assume that no attacks means the policy is working unless one could point to a thwarted attack which for obvious reasons the administration is loath to do. But remember the 9/11 commission pointing to the need for this type of capability. Call it a failure of the political process…blame it on Bush if you like…”the constitution is not a suicide pact”.
MF, your whole argument fails if al Qaeda is a “foreign power” according to 1801(a)(1-3). USA v bin Laden appears to so hold, although it’s not absolutely clear.
Come to think of it, if the people being tapped were, say, also connected to the Taliban, the government of Iraq pre-war, or any other state, they’re going to fall under 1801(a)(1-3).
I think the whole argument falls apart on that point.
Why? Because it allows the intelligence services the ability to find out about possible terrorist attacks before they happen? This is bad why? SteveMG gives an example of Clinton doing much worse and no one said a damned thing at the time.
Ok, great. Nobody said anything. So what? That doesn’t justify it. It’s bad because it violates federal law. FISA already allowed for immediate searches (you can’t get any faster then that unless you go back in time), so why was it necessary to circumvent already existing policy? And why should we allow the President to ignore federal law?
You missed my next point. It wasn’t that if congress and the judicial branch can’t say it’s unconstitutional, it still is, it’s that if congress didn’t say it’s unconstitutional, that doesn’t mean it never was. There’s a subtle difference. And the case hasn’t been brought to court yet, so I don’t have a decision yet to back me, but I’m speculating that it’s not constitutional for the president to disregard federal law, and I’m arguing that it’s a dangerous and undesirable precedent.
And did you bother to look up post hoc ergo propter hoc? Regarding point 5, my point from the beginning, and I’ll repeat it again, is that Jeff’s suggestion that this particular policy of spying on Americans and ignoring federal law is somehow justified by the fact that there haven’t been any terrorist attacks is a fallacy. Absent of other evidence (which was not provided by Jeff G), you simply cannot conclude that because X did or did not happen after Y, Y prevented or caused X. That’s not because of the “pre-9/11 mindset,” that’s because of the nature of logic and causality.
Maybe tradesports will start a futures market on whether the SCOTUS will find this exercise of Presidential power unconstitutional.
I find it very hard to take people like MF seriously, and here’s why: this issue will swirl around for a few weeks, maybe even a couple of months (Bush lied, people… were listened to.) Polls will be taken. Some questions asked will inspire people like MF to carry on the good fight even when it become apparent that it’s going nowhere. (Do you feel safer now than you did before blahblahblah?—without, of course, asking WHY.) But eventually even the dimmest of dimwits will notice that a truly remarkable number of us really don’t mind if someone is listening in as long as the listening is being done in the name of national security. Then they’ll start looking for another bright shiney object to use as a take-down for Bush and the Republican party. And we’ll start all over again. Yawn.
We got it Tim…thanks for the tip.
But are you willing to put your money where your mouth is? Are you saying that Bush’s actions are unconstitutional? So far your arguments are unpersuasive.
I recognize the distinction, but reject both it and its relevance here. What’s at hand is prima facie a 4th amendment issue (and certainly it’s important on its own), but above and beyond that it’s an issue of the President’s ability to ignore federal law, and furthermore whether such an ability is consistent with the framework of our government as provided in the constitution.
No, what is at hand is your assertion of the relevant issues. As was mine when we you replied to my comment. Your assertion of the relevant issues does not trump mine just ‘cause you say so.
I can’t conceive of how it is.
Many other conceive otherwise. What’s your point, other than to tell me that your conception of the issues at hand trumps mine? And I care because…?
The gist of the argument is that the system is designed with oversight in mind, and the President can’t ignore laws just because he wants to.
And what evidence do you have that the President “ignored laws just because he wants to.”…other than your statement of such, of course?
Furthermore, I reject the idea that the right to privacy can be violated as long as nobody’s going to be prosecuted. A right to privacy is a right to privacy, it’s not as if the government’s got a carte blanche to snoop as long as they’re “just collecting information.â€Â
I suggest you use that argument with the U.S. Customs agent who searches your person and luggage next time you return from an overseas trip. Let me know how it goes.
Furthermore, unlike “right to privacy”, protections from unreasonable search and seizure are specifically delineated in the 4th amendment, to which you alluded. If you will concede that a random search of an American citizen’s person and luggage upon return from a foreign country is reasonable but warrantless, I am prepared to hear your argument that intercepting a communication between an agent of a foreign power (and there have been numerous discussions about this definition based on the murkiness in the relevant USC sections) and a U.S. citizen based upon a method that is not random but targeted, as the program under discussion appears to be, is both warrantless and unreasonable, thus distinguishing it from the random physical search.
JD,
I was pretty young and not very politically aware during majority of the Clinton administration, but being that I’m aware of the arguments now, I can safely say Clinton was just as wrongheaded then as Bush is now. Of course I’d be upset, otherwise I’d be inconsistent. Bad is bad, whether done by a democrat or a republican.
And on your second point, I’m not acting in bad faith, I’m taking the president at his word. Condi Rice, as I’ve mentioned again and again elsewhere, has already admitted that the president violated FISA. Being that FISA is a law, he is, therefore, acting outside of the law. Unless, of course, his radical reinterpretation of the powers of the executive branch succeed.
In general, I am distrustful of power attempting to consolidate power – whether Clinton or Nixon or FDR or Bush is responsible. Any lawyer can create a spurious argument – take a look at pretty much any case regarding the 4th amendment to see bad attempts by the gov’t to justify abridgment of personal liberty using what is usually pretty bad logic.
Noah,
I’m less concerned with creating a positive argument then with poking holes in what I see as bad logic. I’m not trying to be a wiseass in repeating myself, but trying to correct a misunderstanding (granted, above, because of my own slip). I’m not a constitutional scholar, but from what I’ve read in the last few days it seems pretty clear that SCOTUS has, in the past, not treated unwarranted searches very kindly, even when the government argued that national security was at stake. Furthermore, I reject the legal reasoning of Yoo et al, because it’s fundamentally dangerous and contradictory to how the government ought to work. SCOTUS has similarly rejected (oddly enough, in the original post, in a case cited to support the president) the ability of the executive branch to override the law of the land. So yes, in my interpretation what Bush did is unconstitutional. But even if it were not, I would reject it because I see the ability of one individual to circumvent law (as he ADMITTED he did with FISA) as contradictory to democratic society. Granted, I’m speculating, and using incomplete evidence and my own analysis. But so is everyone else – that’s what we do on blogs =)
Tim,
You’re right that because no one spoke about Clintons actions doesn’t mean that it’s OK that Bush did it. But I find it dubious that as far as the NYT and the MSM is concerned, it’s no big deal under Clinton when we weren’t at war, but under Bush when we are it IS a big deal. You’re right thouhg, it doesn’t accused any (supposed) wrongdoing.
The fact is the president DIDN’T ignore federal law. And you have zero evidence that he did. Not only that, but neither does congress or the judicial branch. You’re making accusations that the facts don’t support. This post has multiple examples of precedent on this issue, which entirely support the legal actions of our President during war time. I don’t fault you for being concerned about our civil liberties, but this to me seems like a bit of yelling fire in a crowded theater. You’re dubious speculation does not make me feel any safer for either my liberties or my personal safety.
Post hoc ergo propter hoc: Latin for “after this, therefore because of this” or the more refined version “If, then therefore, because.”
I already knew what it means, but thanks anyways for caring so deeply about my latin skills.
The fact that there have been no terrorist attacks since 9/11 is a result of many things, but it is my opinion that the removal of the barriers between intelligence agencies preventing them from sharing information has been the most powerful tool. There have been examples where wiretaps have indeed disrupted terrorist activities both here and abroad.
Now you are just being emotional not logical. If as Bush is asserting that he has this power and the supreme court agrees then it is lawful. That is the system we have agreed to.
The US Mail and land-based phones require deliberate, mechanical intrusion to violate. A cell phone can be intercepted with a common scanner, and emails are even more prone to mischief. I don’t know how the law stands, but I sure as hell don’t consider cell phones or emails private.
tongueboy,
No, what is at hand is your assertion of the relevant issues. As was mine when we you replied to my comment. Your assertion of the relevant
issues does not trump mine just ‘cause you say so.
Well, that’s kinda how argument works isn’t it? You assert, I respond with an assertion, we (hopefully) don’t talk past eachother and realize where the disagreement lies. I don’t think that it’s true because I say it, I think it’s true that the issue is about the President’s ability to ignore federal law because that’s how the Attorney General and Secretary of State and President himself have framed the issue. I also think the 4th amendment stuff is significant, though.
Anyhow, I misunderstood your distinction. It seemed to me you were arguing that the 4th amendment can be violated as long as the gov’t was just gathering intelligence.
My point re: the 4th amendment is (using the distinction between warrantless/warranted/reasonable/unreasonable) that without judicial review, we cannot know whether the searches were unreasonable, and that’s the problem.
Agh, comments are piling up. Slow down guys =P
I actually agree with Tim that Bush has probably evaded FISA restrictions but some legal scholars believe he has acted lawfully. Some don’t. I believe he is on much safer ground with the executive power argument. I firmly believe that he has an obligation to protect the nation that allows him to decide what is a reasonable search on national security grounds.
So I have become a Clintonista in that regard as this debate has unfolded.
Liar Liar !!
http://www.whitehouse.gov/news/releases/2004/04/20040420-2.html
President Bush: Information Sharing, Patriot Act Vital to Homeland Security
Remarks by the President in a Conversation on the USA Patriot Act
Kleinshans Music Hall
Buffalo, New York
9:49 A.M. EDT April 20, 2004
Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.
He is acting in violation of FISA, but does that mean he is acting outside the law? It is against the law to excede the speed limit, but a policeman can do so under exceptional circumstances. It is against the law to kick the door down and enter a private residence, but a policeman can do so under exceptional circumstance. I can think of few laws that don’t have exceptions. It stands to reason there may be exceptional circumstances in which violating FISA may be acceptable. I need to know more before I make up my mind, but given the necessity of secrecy in this case I think blind trust maybe the best we can do.
Tom —
Are you saying Bush should have leaked the program himself?
FISA Court review from 2002:
Combine with info here. Commence discussion.
I’m not a lawyer, and even less a logician, but can someone explain to me how the fact that Secretary Rice didn’t cite FISA as an argument in favor of wiretaps is somehow proof that the Administration violated FISA? Especially given the murkiness of the statutes in question, and the attendant difficulties in explaining them in a soundbite-driven format?
Tman,
Granted, I wish the media was equally as critical of everyone. It’d make decisions that much easier, and we’d be a healthier society as a whole.
I’m using the president’s and other senior member’s admission that they ignored FISA as my evidence that they violated federal law. They would not have made such an admission if they were not SURE they couldn’t have justified it under the existing statute – otherwise this move would make no political sense. Now, you might disagree and think that the president was justified in breaking the law because of the congressional authorization to use whatever force necessary, (and that’s a whole other issue), but you can’t think that they didn’t violate FISA when they said they did. And yes, I’m speculating – but what part of what I said made it dubious? Do you disagree with my characterization of either supreme court case, or something else? Also, I’m a bit behind with following up on these Clinton leads and whatnot – been pretty much absorbed with responding to the comments as they’ve been flying in.
And sorry for insulting your latin skills, I wasn’t trying to talk down to you – just make you address the point. Which you did. And while I agree that it’s entirely possible that the reorganization of intelligence agencies is at least in part responsible for the lack of attacks, that’s a far cry from justifying what Jeff G suggested originally, that this particular policy has resulted in decreased terrorist attacks. That’s more then speculative.
And by the by, do you have references for wiretaps and other reorganization thwarting particular attacks? (not an attack on you, honestly curious and willing to look into it).
Whew. Moving on…
B moe,
While cell phones or email may not be secure, it’s pretty well established that they’re private. At least so far as I know. And addressing your later point, yeah, it’s my contention that in violating FISA, he acted outside the law. Rather then attempt to change the law, or even express a need to change it, he chose to circumvent it. It’s my position that we cannot allow the executive branch to be given a blank check to ignore federal statute. Once it’s acknowledged that the president can do what he wants under wartime powers, where does that logic end? I realize that for many people here it’s a matter of trust, and I simply don’t trust the president (not just Bush, but any president) to not violate the civil liberties of citizens. Projects like COINTELPRO and other projects against civil dissenters demonstrate pretty clearly that the government has, in the past, preferred to glance over legal issues in favor of collecting intelligence and squashing dissent. And yeah, maybe we’d be a bit safer against potential attacks if the president can violate whatever laws he wants during wartime, and search citizens on his good word alone. But my response is pretty much Ben Franklin’s: “They who would give up an essential liberty for temporary security, deserve neither liberty or security.” By giving up liberties in favor of security, we weaken our society. The bill of rights and the seperation of powers are what have made this government so successful, abandoning that for temporary security is dangerous and foolish. The founding fathers were nervous about tyranny for a reason.
*steps off soapbox*
Ok, I realize I might have skipped a comment or two, but I need to get something to eat. I’ll be back in a few hours. And Jeff G, I’m not sure where you came up with that, since I didn’t even address the concept of leaking the program. Care to address, umm, anything I wrote? Or at least correct the reading of Hamdi v. Rumsfeld? Barring all my other criticism, that in particular is plainly indefensible if you actually read the opinion. I’ll respond to your comment more substantially when I return.
Border search exception. We’re talking about calls and emails originating abroad no? No judicial review needed.
Kerr covers this in the post Jeff cites.
Uh, you are “Tim,” not “Tom,” yes?
I came up with that in a post by “Tom.” Which is why I addressed it back to “Tom.” Not Tim. Who is you.
Care to address what I wrote, Tim?
Yep Jeff G as I understand your argument a court agreed with the government. But in the instant case no court is involved. How does that advance your argument?
Steve, you offered this quote: “[S]earches conducted for the purpose of foreign intelligence collection which target persons who are agents of a foreign power do not require a warrant.”
This seems to be essentially the argument that Bush is making. Today’s WP has George Will quoting Yoo: “The Constitution vests in the president inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority.”
Yoo seems to be saying that FISA is unconstitutional. In any case, what many Bush supporters seem to be saying is that Bush’s wartime powers give him the right to ignore FISA.
Here’s the part I don’t understand. If you and Yoo are right, presumably we should assume that Bush’s power to conduct warrantless surveillance also applies to purely domestic communications. After all, Mohammad in Detroit could be chatting with Abdul in Brooklyn. Bush could believe they are both “agents of a foreign power” (al-Qaeda), even if they are both US citizens.
Are you arguing that Bush has a right to conduct warrantless surveillance of that conversation?
I don’t understand your question, Noah.
More & More Lies…..Can’t wait for the twisted pathetic rationales the Bush groupies will come up with. How can this godly Christian lie so much, can anybody answer that? Here’s some more lies for your reading pleasure……….
President Bush—April 19, 2004:
For years, law enforcement used so-called roving wire taps to investigate organized crime. You see, what that meant is if you got a wire tap by court order—and, by the way, everything you hear about requires court order, requires there to be permission from a FISA court, for example.
President Bush—April 20, 2004:
Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.
President Bush—June 9, 2005:
One tool that has been especially important to law enforcement is called a roving wiretap. Roving wiretaps allow investigators to follow suspects who frequently change their means of communications. These wiretaps must be approved by a judge, and they have been used for years to catch drug dealers and other criminals. Yet, before the Patriot Act, agents investigating terrorists had to get a separate authorization for each phone they wanted to tap. That means terrorists could elude law enforcement by simply purchasing a new cell phone. The Patriot Act fixed the problem by allowing terrorism investigators to use the same wiretaps that were already being using against drug kingpins and mob bosses.
White House fact sheet – June 9, 2005:
The Patriot Act extended the use of roving wiretaps, which were already permitted against drug kingpins and mob bosses, to international terrorism investigations. They must be approved by a judge. Without roving wiretaps, terrorists could elude law enforcement by simply purchasing a new cell phone.
President Bush—July 20, 2005:
The Patriot Act helps us defeat our enemies while safeguarding civil liberties for all Americans. The judicial branch has a strong oversight role in the application of the Patriot Act. Law enforcement officers need a federal judge’s permission to wiretap a foreign terrorist’s phone, or to track his calls, or to search his property. Officers must meet strict standards to use any of the tools we’re talking about. And they are fully consistent with the Constitution of the United States.
White House fact sheet—July 20, 2005:
The judicial branch has a strong oversight role in the application of the Patriot Act. Law enforcement officers must seek a federal judge’s permission to wiretap a foreign terrorist’s phone, track his calls, or search his property. These strict standards are fully consistent with the Constitution. Congress also oversees the application of the Patriot Act, and in more than three years there has not been a single verified abuse.
President Bush—December 10, 2005:
The Patriot Act is helping America defeat our enemies while safeguarding civil liberties for all our people. The judicial branch has a strong oversight role in the application of the Patriot Act. Under the act, law enforcement officers need a federal judge’s permission to wiretap a foreign terrorist’s phone or search his property. Congress also oversees our use of the Patriot Act. Attorney General Gonzales delivers regular reports on the Patriot Act to the House and the Senate.
Tom —
If you have a point, make it. Cutting and pasting from ThinkProgress doesn’t impress me, nor am I swayed by it.
Noting that the Bushies didn’t advertise the fact that they were gathering intel via the NSA is not as remarkable as you seem to think it is. And note that the White House is consistently talking about Law Enforcement officers.
And roving wiretaps are a different animal entirely, I’m pretty sure.
Anybody got a spare clue they could loan tom?
Great post Tom!
Sounds like the police (law enforcement officers, mentioned about 30 times in your various citations) need to get a court order before they listen in on your phone conversations while you’re trying to sell that primo weed to those Talibaners you’ve been talking to.
But you’d better be careful when you set up your drop-off. We’re at war and there may be a program that for all intents and purposes does not exist and is monitoring your call.
Just sayin’
Gosh you guys, I was really hoping for some of that patented unfathomable logic that is routinely used to justify anything Bush does. Ya know the kind that says we don’t torture but don’t pass any new laws restricting it. I’ve come to believe that in your universe up is down, black is white, and Bush is God almighty!
Come on, put your tin foil hats on and get those twisted rationales going!
Maybe you’re just all too burnt out from your countless previous efforts. Come to think of it, given the amount of hypocrisy emanating from Bush and his accomplices, that’s easily believable.
Oh and by the way, I don’t care if you’re swayed or not. I just realize that this info will not appear on the Bush loyalist websites otherwise.
It’s kind of like watching Faux News (that’s Fox in case some can’t figure it out), unfair and unbalanced.
Ta ta…..
Sparks:
Are you arguing that Bush has a right to conduct warrantless surveillance of that conversation?
For intelligence gathering purposes only (and not for any criminal charges), it appears that the President (Bush, Clinton and future presidents) has the inherent constitutional power to authorize warrantless monitoring of foreign agents operating totally within the United States.
Briefer answer (gulp), I think so.
This is, to repeat, not a newly-found power only discovered by the Bush Administration. The Clinton Administration argued similarly (as mentioned elsewhere above).
Very troubling power, admittedly. Very. The fact that I think he has the right to do it doesn’t mean I think it’s the right thing to do (or to allow him to do).
The Framers were brilliantly prescient; but they couldn’t think of everything.
SMG
<I>“Oversight†implies the ability of some neutral person making sure that *each and every decision* to spy on a US person is justified.
Funny stuff man!
Thanks for the laugh…
I’m pretty sure they would have counted the ability to pursue would-be mass murderers sent from foreign lands as part of the executive’s powers.
I was really hoping for some of that patented unfathomable logic that is routinely used to justify anything Bush does. Ya know the kind that says we don’t torture but don’t pass any new laws restricting it.
Hate to point this out to you, but torture is already illegal.
Can’t wait for the twisted pathetic rationales the Bush groupies will come up with. How can this godly Christian lie so much,
1. Nobody is talking about the Patriot Act but you
2. I suppose you want the President to announce on National television our classified methods of intelligence gathering.
3. Your stupidity knows few limits
Well I’ve really enjoyed skimming some of these “Migranes in 10000 words or less” comments about a tree falling in the woods of Wyoming causing such a great noise in New York though no one was there to hear it.
It’s been a tremendous example of the litigious left, trying to manufacture a loss in a class action asking for punitive damages.
MF said it himself:
I’m a lawyer, and I try to use the law as best I can to get my client what he wants. Doesn’t mean I’m “right†on the law.