Andrew McCarthy, from the Jan 30 2006 issue of National Review:
Washington’s scandal du jour involves a wartime surveillance program President Bush directed the National Security Agency to carry out after al-Qaeda killed nearly 3,000 Americans on September 11, 2001. The idea that there is anything truly scandalous about this program is absurd. But the outcry against it is valuable, highlighting as it does the mistaken assumption that criminal-justice solutions are applicable to national-security challenges.
The intelligence community has identified thousands of al-Qaeda operatives and sympathizers throughout the world. After Congress overwhelmingly authorized the use of military force immediately following the 9/11 attacks, the president, as part of the war effort, ordered the NSA to intercept the enemy’s international communications, even if those communications went into and out of the United States and thus potentially involved American citizens. According to reports from the New York Times, which shamefully publicized leaks of the program’s existence in mid-December 2005, as many as 7,000 suspected terrorists overseas are monitored at any one time, as are up to 500 suspects inside the U.S.
As is typical of such wartime operations, the NSA program was classified at the highest level of secret information. It was, nevertheless, completely different from the kind of rogue intelligence operations of which the Nixon era is emblematic (though by no means the only case). The Bush administration internally vetted the program, including at the Justice Department, to confirm its legal footing. It reviewed (and continues to review) the program every 45 days. It briefed the bipartisan leadership of Congress (including the intelligence committees) at least a dozen times. It informed the chief judge of the federal Foreign Intelligence Surveillance Court (FISC), the tribunal that oversees domestic national-security wiretapping. And it modified the program in mid-2004 in reaction to concerns raised by the chief judge, national-security officials, and government lawyers.
Far from being a pretextual use of war powers to spy on political opponents and policy dissenters, the NSA program has been dedicated to national security. More to the point, it has saved lives, helping break up at least one al-Qaeda conspiracy to attack New York City and Washington, D.C., in connection with which a plotter named Iyman Faris was sentenced to 20 years’ imprisonment.
As potential scandal fodder, so unremarkable did the NSA program seem that the Times sat on the story for a year  and a year, it is worth noting, during which it transparently and assiduously sought to exploit any opportunity to discredit the administration and cast it as a mortal threat to civil liberties […]
Much of this article covers ground that I and others have gone over time and again, so the real reason I reintroduce the subject today is that it seems to me to provide quite a necessary gloss on stories such as these, which are beginning to find their ways—however quietly—into the mainstream press. From ABC News:
Federal agents have launched an investigation into a surge in the purchase of large quantities of disposable cell phones by individuals from the Middle East and Pakistan, ABC News has learned.
The phones– which do not require purchasers to sign a contract or have a credit card—have many legitimate uses, and are popular with people who have bad credit or for use as emergency phones tucked away in glove compartments or tackle boxes. But since they can be difficult or impossible to track, law enforcement officials say the phones are widely used by criminal gangs and terrorists.
“There’s very little audit trail assigned to this phone. One can walk in, purchase it in cash, you don’t have to put down a credit card, buy any amount of minutes to it, and you don’t, frankly, know who bought this,” said Jack Cloonan, a former FBI official who is now an ABC News consultant.
Law enforcement officials say the phones were used to detonate the bombs terrorists used in the Madrid train attacks in March 2004.
“The application of prepaid phones for nefarious reasons, is really widespread. For example, the terrorists in Madrid used prepaid phones to detonate the bombs in the subway trains that killed more than 200 people,” said Roger Entner, a communications consultant.
150 Phones in One Sale, 60 Phones in Another.
The FBI is closely monitoring the potentially dangerous development, which came to light following recent large-quantity purchases in California and Texas, officials confirmed.
In one New Year’s Eve transaction at a Target store in Hemet, Calif., 150 disposable tracfones were purchased. Suspicious store employees notified police, who called in the FBI, law enforcement sources said.
In an earlier incident, at a Wal-mart store in Midland, Texas, on December 18, six individuals attempted to buy about 60 of the phones until store clerks became suspicious and notified the police. A Wal-mart spokesperson confirmed the incident.
The Midland, Texas, police report dated December 18 and obtained by ABC News states: “Information obtained by MPD [Midland Police Department] dispatch personnel indicated that approximately six individuals of Middle-Eastern origin were attempting to purchase an unusually large quantity of tracfones (disposable cell phones with prepaid minutes attached).” At least one of the suspects was identified as being from Iraq and another from Pakistan, officials said.
“Upon the arrival of officers, suspects were observed moving away from the registers appearing to evade detection while ridding themselves of the merchandise.”
Other reports have come in from other cities, including Dallas, and from authorities in other states. Authorities in Pennsylvania, New York and other parts of Texas confirmed that they were alerted to the cases, and sources say other jurisdictions were also notified.
The growing use of the throwaway cell phones has been cited by President Bush as an important justification for expanding the wiretap laws under the Patriot Act.
“Law enforcement officials can now use what’s now called roving wiretaps, which will prevent a terrorist from switching cell phones to get a message out to one of his buddies,” Bush said on April 20, 2004.
Predictably, we will soon start to hear concerned civil libertarians “questioning” the “targeting” of Muslims who were observed by Wal-Mart redneck jingoists making large purchases of such phones—a gambit by the ACLU that will play on our fear of being labeled racists or bigots and pretend that ethnicity alone (and not, as was more properly the case, the confluence of the ethnicity, the technology, the size of the sale, and the vigilance expected of all of us in the context of both a war and a battle over the legality of how our extant laws allow us to monitor enemies within the country) is the driving force behind the violation of the rights of potential persons of interest (if not suspected terrorists).
But in advance of that, I’d like to point out that one of the problems with FISA warrants, as I’ve come to understand it (and correct me if I’m wrong here, because I can’t remember precisely where I heard this), is that when they are requested, particularly in bulk (generally after a foreign intel grab), the warrants themselves pertain to individual phone numbers —and not persons—making the use of disposable cell phones particularly effective when it comes to circumventing the potential force of FISA law enforcment statutes. That is, law enforcement officials applying for FISA warrants would need to reapply for each new phone number (each new disposable phone) even though they are attempting to monitor a single individual or group of individuals. And in each new case, they’d be expected to show probable cause (which, thankfully, can come from the NSA summaries of foreign intercepts wherein one side of the conversation took place internationally—though several civil libertarian absolutists dispute the legality even of that). Unsurprisingly, these attempts at large-scale purchases for disposible cellphones came shortly after the NYT’s Dec 15 leak of the NSA “domestic spying “ program. Which suggests—at least potentially—that embedded al Qaeda operatives with US person status are on the lookout for ways to circumvent our laws and operate within the loopholes created because our law enforcement system didn’t adequately anticipate an enemy that would seek to exploit protections given to US persons, nor a legal ethos in which we would seriously be having debates about whether or not the provisional legal classifications of foreign agents gave them the rights not to be surveilled or “harrassed” in their “privacy.”
Somewhere, Harry Callahan weeps.
For what it’s worth, the roving wiretap provision of the PATRIOT Act, seen in this light, is an attempt to correct that loophole in domestic-to-domestic transmission monitoring—the idea being that it makes sense to monitor the person and not the disposable phone. Otherwise, to use a silly analogy, you’d be asking law enforcement officials to monitor jaywalkers by demanding they concentrate solely on a particular brand of shoe (rather than who is wearing them, or where the lawbreaking is physically occurring). And yet many US citizens and lawmakers more concerned with sanctimony—and content to play the odds—engage daily in an effort to take away the very tools that give us our advantage over the terrorists. The argument being that if we violate (an unsettled and legally contentious conception of) the terrorist’s rights simply in order to stop, say, a chemical weapons attack or a Mall of America truck bombing, the terrorists will have won.
Similarly, such attempts to prevent such attacks are more illegal than are the clearly illegal attempts to make sure our enemies know we are making such attempts. Black is white, up is down, Joannie is Chachi…
Fortunately (or perhaps unfortunately, depending upon your particular legal and constitutional sensibilities), according to the DoJ, the NSA, the DoD, and a series of lower court rulings backing the President (as well as the pronouncement of the FISA Review Court, which proceeds from the assumption that the President has always had inherent authority to authorize the acquisition of foreign intel, even when he has not been give AUMF, which in this case he was), this scenario of law enforcement confounded by legal, technologically-determined loopholes, is not a factor for international communications monitoring—which falls under military jurisdiction, and so is unencumbered by FISA restrictions under the definition for electronic surveillance (unless the target is a particular US person, or the gathered intel is used in a criminal proceeding and/or violates fourth amendment protections).
Still, these stories should prove alarming, and should give pause to those looking to bury the President with dubious legal claims or the absolutist dogma of civil libertarianism (which, under my brand of fidelity to civil liberties, must, by Constitutional decree, be forced to cede to the protection of the nation in a time of war, especially when the means can be argued persuasively as being both legally and constitutionally permissable; this position doesn’t make me a fascist, I don’t think—though the irony of being called such by progressive leftists who believe banning smoking or taxing the consumption of Twinkies or taking private property to build malls in order to increase municiple tax revenue and expand local government is the height of civil libertarianism, is not lost on me. Instead, my position, as I see it, makes me a civil libertarian who is respectful and protective of natural sovereignty –from which our individual liberties first proceed—and of the President’s Article II authorities in war time, which are respectful of the separation of powers as the framers envisioned them.)
Michelle Malkin has much more on this, as do Daily Pundit, The Strata-Sphere, Reliapundit, Bryan Preston, The Anchoress, and Chris Christner.
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(My previous posts on the subject are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here—and contain all applicable legal links; I simply don’t feel like digging up the sourcing yet again, though if I have time later, I will go back and do so)
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related: this ironic Truthout press release (h/t Confederate Yankee and Ray Smith). I haven’t looked at it myself—I’m busy getting drunk and depressed—but there you have it.
This is, of course, no surprise. “Whistleblowers,” my ass.
I wonder if the left, in their excess of fury about the Plame “outing” saved any outrage for acts that demonstrably damaged national security?
Probably not.
Been trying to make the case (disposable cell phones) all afternoon over at John’s place. As you might imagine – getting very little traction.
As I’ve asked before, is it only a coincidence that these two incidents took place on the heels of the NYTimes NSA article (12/15/05)? Is it only a coincidence that neither the NYTimes nor Wapo are covering this?
And what we get, instead, from the NYTimes is but yet another sobsister story about how we bad old Americanos make it soooooo hard for honorable, noble, suffering
illegal…er…migrants.Let’s honor the sharp-eyed store clerks and frog-march the NYTimes editors.
The fact that the first occurrence happened 3 days after the NYT article ran makes it pretty damn clear to me. That leak alerted terrorists already in-country to a threat they either where not aware of, or not treating seriously.
Screw you Atrios – you want your one example of how it endangered national security – this is it. I look forward to your spin the next few days (or not as the MSM buries the story).
pshaw, OCSteve
Asstrios is too busy contemplating the size of Republican penises*
Give the guy a break…afterall, we all have our priorities.
The Clarke thing, the Plame thing, now this…
It’s all much more pedestrian than most of us think. It’s all about selling books.
:peter
The Left has consistently, going back to Clinton, addressed terrorism as a law enforcement issue, not a military issue. “We will bring the perp’s to justice” was the refrain after any terrorist event.
Stunningly, the Left insists on maintaining this approach to the problem. I have given up commenting on liberal blogs about why the president should not be criticized for this monitoring. To the other commenters, he’s the annointed-power hungry-chimp willing to persistently defy the Constitution and the Rule of Law (!!!) in order to nab a few troublemakers.
To them, we are not at war, and we should not be afraid of terrorists because they’re a figment of Bush’s neocon brain. Now, I can deal with the latter, but if someone doesn’t believe we are at war, and must therefore use military practices against our enemy, then I don’t know what to say to convince them otherwise.
The question of “are we at war?” seems to be the largest disconnect I have with the Left lately.
The Patriot Act has corrected the past problem with FISA warrants and specific phone numbers. It’s actually a good example of the legislature making changes to FISA (look, a congressional statute!) in order to address its deficiencies.
From this post…
I doubt that these people were purchasing cell phones to exploit a loophole that doesn’t exist anymore.
The concern I have is that the left not only doesn’t think we are war, they want to even up whatever techncial advantages we might have so that the terrorists have a fair fight. Tough interrogations—leak enough so that our navel gazing Congressmen/women disrupt any questioning of captured foreigners that have killed (or would like to kill) American troops. Secret programs—no problem, sit on the story until it can disrupt the Patriot Act vote, then give out information that might change the technical balance. Have a problem with detaining captured enemy combatants–release a fake story about flushing a book so that the nutcase radicals on the other side have yet another piece of slander to throw at the US.
I just can’t wait to see how they really feel about the Iranians having nukes. I’m afraid they’ll only think it fair and balanced.
From my post:
So we don’t disagree on that point. But buying the disposable phones and handing them out to persons who are as not yet targeted means no probable cause, and getting probable cause based on a one-time disposable phone call that can’t be monitored is a problem, I’d say.
It is a question / concern of adaptability; and your attempts to use my inability to say with absolute certainty how al Qaeda feels it can exploit certain loopholes using disposable technology is just another example of your desire pretend that FISA (intended for domestic use)—when combined with PATRIOT Act relaxations—is the one-stop cure all for combatting terrorism here at home.
But those are law enforcement provisions. They are, for the most part, reactive. And that doesn’t work against enemies trying to work and exploit us from within our system.
Llama,
Good catch. At least it suggests that they were only able to exploit pragmatic, rather than legal problems, and fortunately the logistical problems are much easier to address.
BRD
No, it’s not a “good catch,” BRD. Because I mentioned it in my intitial post. It is a pretend catch.
If you want to engage your ideological opponents by appealing to your sense of fair play, try doing so by not alienating those who are also trying to do real thinking on the matter.
Sometimes I get the sense that you think yourself the only genuine right-leaning thinker amid a sea of partisan mouthpieces for the Bushies.
No offense, but there you have it.
Jeff,
It depends in very large part to the extent to which the information can be effectively data-mined. For my money, I don’t think that we’re anywhere near the point that we can jump that particular gap in anything like realtime. However, I am also not certain that AQ has sufficient tradecraft to maximally exploit such an opportunity.
BRD
Sorry, Jeff. I haven’t been following this as closely as you have, and just flat out didn’t see it when you caught it the first time.
As far as the “right-thinking” business, I look at it two fold. I don’t like the idea of being rude on someone elses blog. Of course I’m want to screw it up all different manner of ways.
As far as giving credit where credit is due, well there’s not a lot I can say about this. I guess on the rare occasion that we get folks over here that are trying to engage, I try to give benefit of the doubt, as I would rather debate them here than wade through the muck at a place like Cole’s.
As far as being overly pedantic, I work very closely with the policy/security/arena. I get picky about the jargon. And I imagine it does make me an ass from time to time. I don’t think I’m the only guy who pays attention to this stuff. For some things, I just graze or don’t comment on – one big case in point being that I know I’m nowhere near up to speed on the language of the law in this discussion. That I leave to other folks.
Well, I don’t see it that way, but yeah, here I have it.
At any rate, have a good weekend.
Where’s the fucking armored rodent?
Perhaps you strapped a GPS targeting unit to his shell and sent him to Pakistan to pinpoint al-Zawahiri’s position for the our missile strike. We can only hope he made it out in one piece – he is armored (has any one told Hillary this?) after all.
But it doesn’t matter if YOUR are not certain. Potentially, at least, terrorists are attempting to buy up disposable phones for some reason or other—one that perhaps you and I haven’t thought about. Maybe they are counting on aMcCain-like congressional compromise to weaken, in important ways, certain Executive powers as a way to “compromise” or strike a “civil liberties” balance. And once that happens, perhaps they’ve anticipated what those compromises are likely to be and how to exploit them.
Similarly, the PATRIOT Act could expire, without a compromise, leaving the roving wiretap allowance illegal for several weeks in the interim. That is a window of opportunity.
The rest of this is a separation of powers pissing contest, as I’ve said all along.
The point being—again—that simply because the Exec branch is not tipping its hand, and is making ALL possible arguments (Constitutional, statutory) on behalf of its case—tells us NOTHING other than they are asserting certain rights and continuing to protect the classified nature of the program.
Personally, I don’t give a flying fuck if llama school thinks he is more clever than al Qaeda and the government both, and so can state with such assurance that this is a non-story, because we are already adequately protected under FISA and its post 911 review.
FISA is a law enforcement measure. We are in a military battle. And so most of these discussions are simply academic.
And you too, BRD.
I very much appreciate your input here—I’m having a particular rough time with my drugs today, so forgive me if I came off too harsh—but watching you act graciously to Phoenician, for instance, after that turd has called me all manner of names and imputed to me the most vile of motives, well, it takes much for me to bite my tongue.
I apologize for my strong reaction. My body is still not ready to handle the rather large doses of this drug, I don’t think.
Jeff,
No worries – I myself am about to head off to work on that sullen drunk you mentioned at the bottom of the post.
As for being gracious to feckless crapweasels, it has a great deal more to do with trying to fix them in place so I can assault through their position. Otherwise the slipperly little bastards sometimes get away. Maybe a bit like leaving Fallujah alone for a few months before the November offensive.
But I hope you’re feeling better soon – I know it can take a good while before the body cooperates. So I’ll drink an extra 3-4 for you, and wish you a good weekend.
Cheers,
BRD
Maybe I completely read the post wrong, but it seemed like your point was that the roving wiretap issue is a current problem with FISA warrants (as you use the present tense when referring to it, and then go directly from discussing the lack of a roving wiretap provision to discussing the pay-as-you-go cellphone story and the NYT story…as if there was some possible cause and effect between the two).
As for me, I don’t think that I’m more clever than the government or Al Qaeda or whatever. I was simply pointing out something that didn’t make any sense to me in the post. As for whether this is a non-story or not, who knows. I think a lot of bloggers are jumping the gun on this, as we have no idea why these people bought these phones, if the purchases are related to things such as resale overseas or non-terrorism related crime, if there is any causal relationship between the large phone purchases and the NYT story, etc. One detail in the original ABC News story (that the individuals were “linked to a terror cell”) have already been denied by a government official. So far, there isn’t enough evidence to say whether this is a non-story or not.
I do think, however, that the question of “whether we’re already adequately protected under FISA and its post 911 review” is an extremely important one that should be openly discussed, along with whether the once-secret executive order is legal or not under current law.
I think it’s completely possible that some sleeper cells decided to get disposable cell phones after learning about the NSA program via the NYT. Whether that is true or not, I hope the authorities are aggressively investigating the lives of the phone purchasers. We need to make the best of this situation.
I am sorry, but I love this. Wasn’t Atrios just calling for some example on how the NYT leak effected national security since all others put forth weren’t sufficient enough for </i>him? Her?</i>
Even when faced with fresh, just after the leak evidence, they still don’t like it. It isn’t funny though. They have no capacity to imagine dirty nuc juice sprayed across their face.
Anyhoo. I am sure their are many reason to buy 150 disposable phones (ho many hijackers were there?), right?
But seems to me that using each phone just a couple of time and then tossing it for another one would pretty much render our scary NSA program useless.
Anybody ever heard of a one-time pad?
Conceptually similar–the enemy now knows enough about this program to know to use a cell phone once and toss it. So yeah, they might go through a lot of phones.
And I’ve said that FISA + Patriot Act restrictions are the perfect security panacea where? I have no idea if it’s perfect or not.
Now to address some of your points:
1) FISA is not a law enforcement measure. I’m pretty sure Anonymous Liberal has made this point before, but Title III governs domestic law enforcement. FISA “facilitates domestic intelligence gathering related to foreign powers by allowing the collection of such information without the legal restrictions associated with domestic law enforcement.”
2) Addressing the “We are in a military battle” point, FISA has a provision just for that. “Assuming that the AUMF is a declaration of war, FISA allows for warrantless wiretapping for only ”fifteen calendar days” after declaration of war.
3) PATRIOT Act relaxations of FISA is a clear example of changes in allowed electronic surveillance ”authorized by statute”. As I’m sure someone’s argued before, the fact that Congress made these PATRIOT Act changes to FISA w/o also making other changes (i.e. allowing warrantless wiretapping) hurts the argument that Congress gave the executive the go-ahead to ignore FISA restrictions wrt warrantless wiretapping (if Congress intended the AUMF to allow warrantless wiretapping, they could have changed FISA as was done in the PATRIOT Act).
topsecretk9,
The cell phone story constitutes “evidence” of the NYT story affecting national security? Do you really want to make that claim?
If he’s referring to requests that FISA be adhered to, he’s wrong in that this means criminal-justice. FISA is not part of the criminal justice system.
Llama
So far we have the FBI saying
in specific regards to Midland, Tx.
So, after that hedge, wassup with Hemet, CA?
You say ‘in time of war’ and link to the AUMF. is that normal here in rightwingland?
Darleen,
The ABC News article doesn’t say anything about links to terrorism with regards to what happened in Hemet, CA. All the article says about the Hemet incident is, “In one New Year’s Eve transaction at a Target store in Hemet, Calif., 150 disposable tracfones were purchased. Suspicious store employees notified police, who called in the FBI, law enforcement sources said.”
Actually, Actus Joe Biden said, to paraphrase, “I wrote it and it was a declaration of war.”
Llama,
I realize that; however, a 150 phone purchase is highly suspicious from the git-go. I don’t believe it was members of the Chamber of Commerce preparing for the next Ramona Pageant that bought ‘em.
There seem to be a lot of people at this blog and elsewhere who are asserting quite confidently that the ABC story today proves that the NY Times story damaged national security. The only problem is, that conclusion doesn’t make much sense.
A couple points worth considering:
1) As the ABC story makes clear, disposable cell phones were already the favorite tool of terrorists and criminals before the NSA story even surfaced. The al Qaeda members who planned and executed the Madrid bombings, for instance, used these kind of phones. It seems likely that any hardcore criminal or terrorist types would already be using these phones, regardless of what is printed in the New York Times.
2) The New York Times story said nothing about disposable cell phones, and no one has explained why calls made to or from disposable phones would not be caught up in the same data-mining net as every other call. Plus, as Llama School points out, under FISA the government has the authority to conduct roving wiretaps, meaning wiretaps tied to a person, not a specific phone.
3) The story doesn’t actually say that sales of disposable cell phones have increased: it merely cites a few anecdotal reports of recent “large” purchases by Middle-Eastern looking men. It’s entirely possible that such purchases have been happening all the time but that they are only being noticed now because of the publicity surrounding the NSA controversy. Would anyone have thought twice if they saw some guy buying a bunch of cell phones a few months ago?
4) Even assuming there is a connection between the NSA story and these purchases, there might well be a totally benign explanation. I would not be surprised if average Americans (particularly those of Middle-Eastern origin) who regularly place calls overseas are looking for ways to do so without the government eavesdropping on them. While terrorists likely expect the government to try to listen in on their conversations (and therefore long ago took protective measures), average law-abiding citizens likely do not. The revelation that the government is engaged in warrantless wiretapping may have caused people who never before worried about their privacy being invaded to seek ways of avoiding that invasion. People may have all sorts of reasons totally unrelated to terrorist activity to want to minimize the likelihood of being spied on.
Since I can already picture people taking this last argument out of context, let me be extra clear about what I’m saying. Terrorists surely know that the government is attempting to surveil them and indeed that it has a duty to do so. So their behavior is not likely to be affected by knowing whether or not warrants are being used. Either way, they have a strong incentive to communicate via the safest, least traceable method possible. But ordinary citizens do not expect to be surveilled, and therefore do not normally take any precautions to prevent such surveillance. At least until recently, they expected that our laws and warrant procedures would protect them from groundless government snooping. So the revelation that the NSA is engaged in warrantless domestic spying, with no judicial oversight, might well affect their behavior. Now they may fear (whether justifiably or not) that anyone, not just terrorists, can potentially be spied upon. That might well cause regular people, particularly those who value their privacy, to seek alternative methods of communication.
Jeff, what does this mean? How is handing a disposable cell phone to someone who is net yet targeted any different than handing a normal cell phone to someone who is not yet targeted? Or for that matter a land line? If they are not on the government’s radar screen, then they are not on the government’s radar screen. The type of phone wouldn’t matter.
Jeff, just about every contention you make in this paragraph is wholly incorrect as a matter of law. The court cases you cite here do NOT say what you suggest. Yes, they state that the president has inherent power to engage in national security related surveillance. But inherent authority is not the same thing as exclusive authority. Inherent authority simply means that, in the absense of a statute, the president can act. It doesn’t mean that in the presence of statute, the president can act contrary to it. This is basic constitutional law. The president does NOT have exclusive authority in this area. FISA is clearly constitutional, and even the Bush administration is not suggesting that is isn’t.
And there is no such thing as “military jurisdiction” in the sense you are using it. Yes, the military is free to do whatever surveillance it wants on foriegn soil. But FISA is clearly and unambiguously intended to be the sole method for spying on U.S. citizens within the U.S. That’s why it says that its procedures “shall be the exclusive means by which electronic surveillance” of U.S. citizens is to be conducted (at least for non-law enforcement purposes). FISA is intended to cover both peacetime and wartime. In other words, there is no residual authority under FISA for the president to conduct any other kind of surveillance involving U.S. citizens.
Jeff, what does this mean? How is handing a disposable cell phone to someone who is net yet targeted any different than handing a normal cell phone to someone who is not yet targeted? Or for that matter a land line? If they are not on the government’s radar screen, then they are not on the government’s radar screen. The type of phone wouldn’t matter.
The difference is you lose a lot of info for traffic analysis if you use a one-time phone. You gain alot by being able to track back other phone traffic once a number is identified as being “interesting”.
TW: pattern (traffic), which can be almost as interesting as content sometimes.
BRD:
The Washington Post:
BRD may be thinking of other types of data mining, but it would have to be shown that such are much more intense computationally than the intercept of conversations in realtime.
AL:
As the distinction between “inherent” authority and “exclusive” authority is “basic constitutional law,” I’m sure you have a slew of case law to back you up. So how ‘bout a few citations?
Citations for this, too, please. After all, you’re apparently an expert, so please enlighten the rest of us with actual citations to case law, rather than relying on mere assertions.
The most widely cited cases on this subject are Youngstown Steel and its progeny. For a quick rundown of the facts and various concurring and dissenting opinions in Youngstown, see this post.
This is easy because there are exactly ZERO cases which even so much as hint that FISA is an unconstitutional excercise of Congressional authority. None. Zero. No one has ever seriously questioned FISA’s constitutionality. If you read the DOJ letter closely, it’s clear that even the Bush administration isn’t claiming FISA is unconstitutional.
Okay, Kevin, let’s assume you’re correct here. How is this fact relevant to the NY Times story? What about that story caused terrorists to start buying disposable cell phones? I don’t get it.
First of all, the disposable phones used in the Madrid bombings were used in the bombs themselves. And one reason disposable phones are used in bombs (besides any signal interception) is that if the bomb fails to go off, you want it to be disposable because it’s hard to track who bought it. (And 3 bombs failed to go off in that attack.) What I have not seen is any reports of what types of phones the bombers used normally or in the planning stages. Considering the long planning times of major al-Qaeda attacks, 2 years is a long time to constantly use disposable phones and learn new phone numbers. It’s certainly possible that they might have been lax on phone security.
They might be of the same class of terrorist as the one from the first WTC attack that tried to get his deposit refunded, or maybe they just have tradecraft as bad as our own CIA agents. The Wal-Mart/Target stories (if true!) suggest they’re less James Bond and more Maxwell Smart If they’re al-Qaeda and they’re doing something slightly suspicious like buying 150 phones at a time, they’re probably also not familiar with the intricacies of FISA legislation. But I think when the fact that 500 suspects in the US are being monitored is plastered all over the news, that even the dumbest terrorist is going to be extra cautious in using phones.
AL:
I’ve read ‘em, not just your selective quotations of them. In fact, Justice Jackson’s concurrence actually criticizes throwing around terms like “inherent” and “exclusive.”
I’ve also read Dames & Moore v. Regan, where Rehnquist wrote that Jackson’s analysis was helpful but an oversimplification.
I’m also aware that neither dealt with the President’s authority as Commander in Chief; that argument was expressly rejected in Youngstown; the facts of the current situation are easily distinguishable on this point. Conducting warrant foreign surveillance has been consistently held to be within that authority, whereas seizing factories to settle a labor dispute never was.
Again, if you have cases that specifically analyze things in terms of “inherent” or “exclusive” authority, please cite them.
Nice try at dodging the question. How many cases hold that FISA is constitutional? Please cite them. You’re a graduate of Columbia Law School, so it should be easy.
I don’t think there’s much to that truthout link. The declassified document referenced sounds pretty unremarkable when you read through it, and continually stresses adhering to the law and avoiding 4th amendment violations. (Not to mention that it’s dated Dec. 2000, before Bush was sworn in.)
AL, every error you make—and the reason you accuse me of being wrong on every point of law—is because you seem to believe FISA can constrain executive powers. But FISA is, in my opinion, unconstitutional, especially where it attempts to curtail the Executive’s Article II powers. Your insistence that “FISA is clearly constitutional” is untrue. I know of no constitutional challenges to FISA. I do, however, know of FISA courts acknowledging that the President has the presumed inherent authority to gather foreign intel, and I do know the specific characteristics of what is considered foreign intel. I also don’t buy the differentiation you are trying to make between inherent and exclusive authority.
This entire NSA argument, as I’ve said time and again, is over separation of powers—and your assertion that the legislature is clearly allowed “checks” on the CiC beyond those prescribed by their constitutional role (funding, articles of impeachment, etc) is a matter of wishful thinking, the kind you generally hear from liberal legal scholars and proponents of a living Constitution who are unhappy with the “imperial powers” the founders left to the President.
But wishing it so doesn’t make it so. And a fair and complete reading of Youngstown makes that obvious.
Read the legislative history of FISA and it’s clear the statutes were erected to prevent against domestic abuses by groups like the FBI. It does not apply to the NSA except under very specific circumstances. Military jurisdiction, as I’m using it, refers to AUMF—under which the NSA’s activities operate—and your raising the point about “spying on US citizens within the US is a red herring,” because “spying” is different than gathering intel when the US person is one part of a chain, and is not the specific target of the acquisition.
Finally, I wrote:
I specifically mentioned the size of the sale as part of the suspicion raised. Which makes the rest of your argument moot.
I have argued all of these points before; and I have said here that I have NO idea why al Qaeda or any terrorist organization would be interested in buying disposable one-time cell phones in bulk; but that doesn’t mean THEY don’t, and your glib dismissal that they could want these phones for any untoward or dangerous reasons (if in fact terrorists are who we are talking with here) is particularly unpersuasive.
That this attempted large buys happened close to the NSA leak is interesting. Does it prove anything? I have no idea. But I’m glad it’s being looked into, and I’m glad we’re having this discussion.
Having said that, I’m done. Playoff time. See you all on Monday.
But you would be surprised if the terrorists are? I don’t blame you for remaining anonymous, I wouldn’t want my name associated with that horseshit either.
Whereas, I’m sure AL doesn’t need me to get his back, here, and —
Whereas, Goldstein’s gone for the weekend and I hate to rag on him when he’s not around to defend himself —
But, whereas, his above comment is so egregious it needs a response:
Goldstein, showing why he needs to stop engaging in bogus legal analysis, writes:
A) FISA’s only goddamn point IS TO CONSTRAIN EXECUTIVE POWERS. This point could not be more clear. FISA was passed as a response to the President’s abuse of those Executive powers. It’s point is to constrain their use in such a way as to prevent future abuses. There is no way around this.
B) Jeff’s opinion as to whether FISA is unconstitutional is just that, his opinion, and it’s wrong. Again, Jeff’s burning desire to absolve the President of any wrongdoing is simply a result of his political sympathies and has nothing to do with the law or legitimate legal analysis.
3) FISA is not unconstitutional in any way, shape, or form. First, Jeff keeps pointing out that the NSA is an arm of the US military. In fact, he wrote that “NSA activities operate” “under” “military jurisdiction.” I agree. And—lookie here!—the Constitution, Art. I, s. 9, gives Congress the authority to “make rules for the government and regulation of the land and naval forces.” So Congress, under a plain reading of the Constitution, can make rules governing the NSA, including what rules it has to follow when it eavesdrops domestically. Second, even if Congress couldn’t make rules for how the “NSA as military arm” operates, it certainly can regulate the electronic interception of communications within the US under the commerce power. Any argument to the contrary would require overturning any number of laws regulating interstate/international wire and radio transmissions—the FCC, wire fraud criminal statutes, do not call, internet regulations, etc.—laws which no one really disputes Congress can pass.
So the long and short of it is that Jeff’s bold statement that the assertion “FISA is clearly constitutional” is untrue is, in fact, itself untrue.
Jeff is right about one thing: that this is a separation of powers issue. But the fact that the President, as an autonomous person wit freedom of choice, can decide he doesn’t want to follow a law Congress passed specifically to constrain him in the exercise of his Executive powers does not mean that he has the legal authority to do so. This is no different than if I decide to grow marijuana in my basement. I can do it, but I have no legal authority to do so (as opposed to, say, institute a law suit in a court, which a citizen has legal authority to do).
And just like the putative police/prosecutor who can, once they become aware of my transgression, bust my ass, Congress, if it determines that the President has violated the law, bust his ass. The fact it currently lacks the balls to do so only suggests that it lacks the balls to do so; it doesn’t suggest that the President’s actions are legitimate as a matter of law.
The difference between Youngstown and NSA is that the steel mill was not part of the Executive branch of government. Denial of authority in that case was sufficient to thwart the action. The claim that SCOTUS deciding that case proves judicial authority OVER the Executive branch is BS. It Does Not.
There is no mechanism for courts or congress to take control of NSA or remove control from the president without also removing the president’s ability to protect the country or wage war. That’s the distinction.
Oh, and one more thing.
The dichotomy that Jeff and others of you rely on regarding the President’s “inherent authority” to gather foreign intelligence (even if means eavesdropping on Americans in America without a warrant) and his lack of authority to do so when we’re talking domestic intelligence gathering (as the Keith court undeniably held) doesn’t make any sense.
We all agree that the Keith court said the President could not gather domestic intelligence for national security purposes by surveilling American citizens without a warrant, right?
So what about the hypothetical (but clearly plausible) Al Qaeda cell composed entirely of US citizens that engages in no international communications whatsoever?
(I’ve raised this hypo before, but didn’t get a satisfactory answer.)
The President clearly has the authority to make war on AQ, see AUMF, so what difference does it make if the AQ cell in question is making international calls or not? And please don’t respond that the President has said that they are getting warrants for purely domestic calls. I’m looking for a cognizable, limiting legal principle under which such a disctinction can be made, not simply a Presidential assertion of such a distinction.
And further, if the President is making such a distinction—and he is, as Jeff loves to point out—isn’t that a silly and arbitrary distinction to make? Doesn’t such a distinction massively hamper our ability to protect ourselves? This is a war, right? So how can we possibly argue that the President’s war powers extend to warrantless surveillance of American AQ agents when they make internatonal calls but not when they make purely domestic ones?
Let’s hear it.
(Sorry if my tone is nasty this morning. I’m hung over.)
Hah.
A)
B)
3)
Booze is evil.
what about the hypothetical
What about it? This is like claiming that if invading Iraq is ok then we should be invading North Korea, Iran, Saudi Arabia, … whatever.
Congress cannot deny NSA access to the switches for reasons of national security FISA notwithstanding. Once NSA has access their obligation to comply with FISA is purely self imposed. Congress can piss and moan till the cows come home.
There is a practical distinction. In principle the Executive could round up the group and treat them as enemy combatants. In practice they might prefer to use the criminal justice system to deal with the threat, in which case going outside FISA risks judicial cooperation.
Is this your opinion? Or are you like some kind of legal Pope speaking the word of God?
But the fact that they’re lax on security doesn’t change the fact that they already, before the NYT story, knew how to be good on security but didn’t do it.
Trying to link purchases of phones that have been around for years to a dec 16,2005 article is tenuous.
B Moe:
You can pretend to score silly rhetorical points like this. Or you can present a colorable argument that FISA is unconstitutional. My guess is that since you can’t do the latter, you’ll just stick to the former. In any event, it doesn’t get us anywhere.
boris:
But they’re US citizens. Surely, they can’t just be rounded up and incarcerated indefinitely, can they? Is that what you’re arguing?
The administration is trying to avoid a ruling on this. Most people agree that post-Hamdan they’re going to lose.
The issue has acquired so much mumbo jumbo to hide behind there is a failure to communicate.
Arguendo,…
If Congress passes some mandatory sentencing bill …
but a judge disregards and issues a lesser sentence .
Liberals would not rise up in outrage claiming the judge “BROKE THE LAW†and “IMPEACH THE BASTARD†would they?
No, never ever. But to continue …
It goes to the Supreme Court and SCOTUS declares the mandatory sentencing bill unconstitutional. In the eyes of liberals does that make them “FASCIST DICTATORS� Of course not.
In effect the highest judicial authority instructed the rest of the judicial branch to disregard the will of congress using a formality everyone is familiar with. No biggy.
The Executive has equal authority within it’s branch to instruct it’s instruments of national force to disregard the will of congress in areas specific to the exercise of constitutional power. The fact that a familiar formality is not used is simply irrelevant
Most people agree that post-Hamdan they’re going to lose.
Had one group of the 911 hijackers been apprehended (successful retake of flight 93) would “most people” give a flying frak about their “citizenship” rights?
boris:
Your inability to move beyond this point is amazing. You’re incorrect. The Executive has discretion to to instruct its instruments to act in violation of law. But it does not have authority to do so. There is a difference.
If it had authority to do what you’re saying it has authority to do, then we live in a country where the only way to check the Executive is to impeach him. But even then, why couldn’t he just “instruct instruments of national force to disregard the will of congress” and prevent his removal from office?
You’re theory of executive power is unsupportable under our Constitution.
B Moe, thank you for validating my concern that someone moron would take that quote entirely out of context. Did you even read the rest of that comment? My point, which I made abundantly clear, is that terrorists ALREADY had all the incentive in the world to use the safest, least traceable method of communication possible. All indications are that terrorists and even ordinary criminals have been relying on disposable phones for years. Moreover, they already knew the government was trying to listen in on them; they are not retarded. So it’s unlikely the NY Times article would have affected their behavior.
But prior to the NY Times article, ordinary law-abiding citizens had no reason whatsoever to suspect that the government was listening in on their conversations. But now that they know that warrant procedures are not being followed, many regular people may be worried (justifiably or not) that they will now be spied on. Believe it or not, many people who are not terrorists don’t like the idea of the government eavesdropping on their private conversations.
I know you’re smart enough to understand this distinction, so stop being deliberately obtuse.
what about the hypothetical
A reasonable attempt to respond to your hypothetical:
In case you missed the point, the preference to use the criminal justice system to deal with the threat provides an incentive to comply with FISA for your hypothetical.
The citizen as enemy combatant issue may not be settled by law as yet and there is likely to be some disagreement on both sides over the right time to do that. Right after 911 the odds changed relative to just before 911.
The existing historical record supports the enemy combatant POV.
The Executive has discretion to to instruct its instruments to act in violation of law. But it does not have authority to do so.
The Executive has the authority to instruct NSA to disregard certain elements of FISA. Just as SCOUTS has the authority to instruct judges to disregard an unconstitutional sentencing bill.
Using words like “violation” are just histrionic appeals to judgemental emotional reaction. Assertions about legal issues from rabid partisans carry no weight. Try making an argument based on reason instead of pretend authority.
boris, who is becoming more obtuse with each comment, writes:
So you’re telling me that the rights of American citizens under the 4th, 5th, and 6th Amendments are protected simply by a political “preference” to use the criminal justice system? This cannot be the law.
Also, I specifically asked for a limiting legal principle, and not an arbitrary assertion of “we don’t do it” or a statement of “preference.” I still haven’t gotten one.
And when you say the “existing historical record record supports the enemy combatant POV,” that’s just inaccurate. Bush got the Supreme Court to sign off on the detention of an American citizen captured on the field of battle in Afghanistan. That’s it. They have assiduously avoided a SCOTUS Padilla decision, re American citizens arrested in the US, because they know they’ll lose.
And, except for suspension of habeus during the civil war, and Korematsu during WWII, the indefinite detention of American citizens without charges, etc., is decidely not supported by the historical record. And those two instances have, in hindsight, been widely accepted as mistakes. (Maybe less so the civil war example—it’s debatable—but the point still stands. We have way way less of a security problem with terrorism now than we did when nearly half the country rebelled.)
Boris, your understanding of the interplay of the various branches of our government is truly bizarre and more than a little scary. And your analogy is terrible. First, in the above scenario, the Supreme Court is not simply disregarding the will of Congress. They are holding that the law passed by Congress (in this case the sentencing guidelines) is not consistent with the Constitution, which is the higher law. That’s the judiciary’s job. They are the ultimate arbiters of the Constitution and the law. When the legislative or executive branches exceed their constitutional authority, the Court’s job is to say so.
The executive branch, however, is not tasked under the Constitution with the job of deciding whether or not Congress has exceeded its authority. If the president thinks a law is unconstitional, he can veto it. But he can’t simply disregard it once passed. The executive branch’s role is to execute the laws Congress passes. If it chooses not to do so, it renders Congress impotent and undermines our entire system of government.
You’re right that Congress physically lacks the power to see that their laws are enforced. They have no independent enforcement wing (indeed this is why we have the executive branch). If the executive branch chooses not to obey the laws Congress passes, Congress has little recourse. But this isn’t legal. It isn’t how the system is supposed to work. It is, essentially, a coup.
You seem to think that whatever is physically possible is also legally acceptable. But just because the President can, physically, defy Congress and frustrate their will doesn’t mean that such action is legal or constitutionally justifiable behavior.
Your are confusing a descriptive argument with a normative one.
boris:
I notice a lack of engagement on the issues. Seems mocking derision along with lack of imagination are now considered substitutes for reasonable argument. Whatever …
The example above implies the president has the authority to instruct the NSA to disregard certain elements of FISA. Just as SCOUTS has the authority to instruct judges to disregard an unconstitutional sentencing bill. Nobody seriously questions that if SCOTUS declared FISA, or the relevant portion unconstitutional, that the NSA program would be legal. But that would imply that SCOTUS had more authority over the entire government than the president has within the executive branch.
That is a gross misunderstanding of the separation of powers. The formality of declaring a law unconstitutional is an exercise of authority within the judicial branch. That it has the effect of apparently applying to the entire government is the source of the confusion. In almost all cases the SCOTUS is the final authority on enforcement of law regarding citizens and criminals. Extrapolating that authority to the executive branch is a mistake. The steel mill case did not illustrate judicial authority over the executive branch, it illustrated judicial authority OVER THE MILL.
boris:
I realize you will not be convinced that your view is incorrect, so I’m more or less done trying, plus I’m hungry.
Again, you misunderstand the issue. The judicial branch only has authority over the executive branch insofar as members of that branch are under court order to do or not do something. If they violate the court order, they can be held in contempt. That’s it.
The judicial branch does, however, have authority to say what the laws, passed by Congress, mean. That’s its power.
Congress is the branch with authority over the Executive branch, insofar as it can pass laws that direct that branch to do or not do something. The Executive, of course, as a practical matter, does not have to do what those laws say. But Congress retains the power to remove such Executive when he does so in a way that Congress will not accept.
In the steel mill case, the judicial branch was not exercising any authority over the steel mill or the Executive branch. It was only exercising its authority to read the Constitution and laws passed by Congress pursuant to the Constitution to determine whether the President had the authority to act in the way he said he did. It decided that Congress—not itself—had proscribed the course of conduct the President took. And that Congress had the power to do so. That’s it.
Argument by incongruity …
the judiciary’s job. They [SCOTUS] are the ultimate arbiters of the Constitution and the law.
The framers clearly made Congress the strongest of the three branches
Congress can also regulate the judiciary, including the Supreme Court.
So whichever branch is set against the Executive, it magically becomes the strongest or the ultimate. Hmmm … how convenient. The founders were quite familiar with fighting war and they made it clear that protecting the country requires power unsuited to congress or judges. The notion that executive war power is subject to meddling and interference from the other branches is not just revisionism unglued, it’s suicidal nonsense.
I am not a legal scholar, you are correct. But I grew up on a farm and I know horseshit when I smell it. But I am sorry if I am keeping you from going somewhere, I sure as Hell didn’t mean to do that.
Whoa, slow down little puppies.
FISA cannot limit railroad regulations, it cannot upend FCC rules, it cannot institute policy in the military, and it cannot do umpteen myriad other things. It has a specific regime of what it can and cannot do within the Foreign Intelligence Surveillance Act.
In other words, FISA may not apply. And if it doesn’t apply, ooops, better luck next time. Americans, specifically the American military under which NSA falls, can detain, capture, kill, and collect information on Americans overseas that associate with, say, Al Qaeda, or other groups [John Walker Lindh, anyone?]. Once those electrons go whizzing around the globe, you ain’t in Kansas anymore, Judy Garland. Normal protections might not apply.
FISA’s constitutionality also has not been tested by a higher court, nor the Supreme Court, and so it is as reasonable to question FISA as it has been to question the Patriot Act. It is not out of bounds.
Also Atrios et. al. of the anarcho-communist-idiotarian fringe should remember that the once you break the law, nobody has to be injured for you to go straight to jail. The law is quirky like that. If you shoot an AK straight into the air at a bank, you don’t have to actually kill anyone to be frog-marched to jail.
Leak classified stuff to the press, rather than through proper channels, you go to federal-pound-you-in-the-a$$-prison. Got it?
Boris, your confusion here could be easily remedied by simply reading the Constitution. It is abundantly clear from the text of that document that the Framers intended Congress to be the pre-eminent branch of government. The powers given to Congress are FAR broader than those given to the other branches. Among those powers are the powers to declare war and to regulate the military.
Your conception of presidential authority is both novel and extreme. FISA was validity passed by Congress and signed into law by President Carter. It is the law, and no one has ever challenged it. If Bush thought that FISA impermissibly encroached on his authority as CiC (which, by the way, he is not even arguing that it does), he has two choices: He can either go to Congress and seek to have it repealed/amended, or he go to federal court and seek a ruling declaring the law unconstitutional (this is more or less what Truman did in Youngstown). That’s how our system works. It’s how it was designed to work. The executive branch cannot simply disregard, at its own discretion, a duly enacted Congressional statute. The Framers would have had an aneurism if they saw a president try to exert such a power.
This statement is misleading. First, FISA was passed in 1978, the Patriot Act in 2001. So it’s a helluva lot more significant that FISA has never been challenged. There’s been plenty of time to challenge its constitutionality– especially on such a central point–and no one has. That’s significant.
Second, FISA and the Patriot Act aren’t really separate things. Some of the most important elements of the Patriot Acts were amendments to FISA. So the very fact that the Bush administration sought to amend FISA through the Patriot Act underscores the fact that even they believe that FISA is constitutional.
This is absolutely right, and no one thinks otherwise. If Bush’s NSA program is not covered by FISA’s terms, then there’s no problem here. But that possibility seems highly unlikely in light of the fact that the administration has conceded that the type of surveillance being done is the type that would normally require a FISA warrant. So the only reasonable conclusion is that whatever surveillance is being done, it does implicate FISA.
The powers given to Congress are FAR broader than those given to the other branches
And congress bestowed them on the executive with the AUMF. To argue against the claim:
… on the basis of reading the constitution is simple desperation. My claim is obviously true and you know it.
Crap about the framers having an aneurism is pretentious and silly. You don’t speak for them. I do not argue my points using quote bombs of legal rulings barely understood even by experts. I use simple obvious facts and reasonable argument.
The judge granting a lesser sentence in my example would not be accused of “breaking the law”. The president has the authority to instruct the NSA to disregard certain elements of FISA, just as SCOTUS has the authority to instruct judges to disregard an unconstitutional sentencing bill. If SCOTUS declared FISA, or the relevant portion unconstitutional nobody seriously questions that the NSA program would be legal. But that implies SCOTUS has more authority over the entire government than the president has within the executive branch. That is a gross misunderstanding of the separation of powers. The formality of declaring a law unconstitutional is an exercise of authority within the judicial branch. That it has the effect of apparently applying to the entire government is the source of your confusion. In almost all cases the SCOTUS is the final authority on enforcement of law regarding citizens and criminals. Extrapolating that authority to the executive branch is a mistake.
Yeah Boris, it’s real simple and straight forward. That is why there is hardly ever any controversy over it.
Like how Jefferson and Madison created a shadow army, covertly funded and sent it after the Libyan pirates. The framers would have had a fucking hissy fit over that.
Ladies and gentlemen, please welcome our next guest, MF, whose latest book “Congress is King of the World” has just been published. MF, everybody!
FISA and the Patriot Act aren’t really separate things. Some of the most important elements of the Patriot Acts were amendments to FISA. So the very fact that the Bush administration sought to amend FISA through the Patriot Act underscores the fact that even they believe that FISA is constitutional.
This doesn’t really help a self-described liberal, whose party phalanxes question the Patriot act so. [Liberals] [T]rumpeting FISA while denigrating the Patriot Act doesn’t exactly inspire a whole lot of confidence in your side. But I’ll give you the benefit of the doubt.
The last part is close to a tautology: the Bush admin uses a tool therefore he (they/we) must believe it to constitutional, rather than expedient. FISA constitutionality, after 911, is on the short list of top 10,000 things to worry about.
But that possibility seems highly unlikely in light of the fact that the administration has conceded that the type of surveillance being done is the type that would normally require a FISA warrant. So the only reasonable conclusion is that whatever surveillance is being done, it does implicate FISA.
The administration’s point is that FISA does NOT apply, and if it did, it would be a BAD thing (too slow). So FISA has no power over that particular executive power, it is not reasonable to make any assumptions over classified information, and if it could legally be twisted to include a role for FISA, that would be harmful.
Like how Jefferson and Madison created a shadow army, covertly funded and sent it after the Libyan pirates. The framers would have had a fucking hissy fit over that.
Oh, my word. I haven’t laughed so hard in forever.
I don’t see how it can get any clearer than Article I, Sec. 8 of the Constitution, listing among the powers of Congress this:
and
I think it’s bizarre to argue that, in essence, Congress has the power to make rules for military forces, except in times of war, in which case the President can just through the Rules out the window.
To make Rules for the Government
So then you must therefore claim that the judge and the Supreme Court in my example are actually criminals. After all congress made a rule and the judicial branch decided UNILATERALLY to disregard it. How can this be ???
Boris
I’m not following. They weren’t US citizens. They certainly were not aprehended under the AUMF. They would certainly be facing a long time in jail, if not the death penalty.
Forget it. Dorkafork has plainly explained the Constitutional separation of powers and how they are supposed to work. We don’t have a king, after all. We have a figurehead in a flight suit who is maneuvered by Congress like their personal little hegemonic puppet. His “inherent authority”? Illusory. Or rather, it can be constrained at any time by the Congress, who—as Dorkafork points out—is responsible for making “rules concerning Captures on Land and Water.”
Is information picked out of the air “capture” in the sense the Constitution meant it? CERTAINLY! Can they make rules that take away other Constituional powers granted to the President? CERTAINLY! THEY CAN MAKE RULES THAT MAKE OTHER RULES NON-RULES!
Talk about absolute authority!
Similarly, they can get together and, as a committee, move around ships and land force in any way they see fit. The President is just there to nod approval and send the military off to do the Congresses’ bidding.
It’s as plain as day. I can’t fathom how it could be otherwise!
JOE BIDEN IS MY GOD!
Fuck it. Going to watch the playoffs. Argue this newfound republic among yourselves—one in which Congress is simply showing gentlemanly deference, because, let’s face it, they can simply make any rule they want to override whatever other rules they don’t like.
somebody hold me…
Jeff is scary
I’m not following.
Of course not. Lack of imagination is considered a good substitute for reasonable argument on your planet.
On planet Earth we can imagine that the successful retake of flight 93, the apprehension of hijackers who were legal residents or even citizens, their detention and interrogation by federal agencies treated as enemy combatants rather than mere criminals would not in fact cause “most people†the slightest sympathy or the mildest of outrage.
Liberals seem to assert that the three supposedly equal branches of government are like a blinkered game of rock-paper-scissors where the executive branch always loses (unless there’s a Clinton co-presidency).
The nub apparently is the claim that since everybody knows SCOTUS can disregard the will of congress when it conflicts with the constitution that they are the ONLY branch that can. If the executive branch is faced with a constitutional conflict it must go a calling on the judicial branch for an official ruling. It’s easy to see where the misunderstanding comes from, but it don’t make it any less wrong.
Where is the article of the constitution that grants the judicial branch EXCLUSIVE authority to declare constitutionality?
Boris,
Where is the article of the constitution that grants the judicial branch EXCLUSIVE authority to declare constitutionality?
In the Bridges of Madison County…or somewhere…Marbury…hmmm…damnit, somewhere.
Boris, your capacity for unintentional irony is apparently limitless. You style of argument is to IGNORE ‘simple obvious facts’ and offer instead arguments which are so outlandish that not even the people you are trying to defend would stoop to argue them. And you NEVER cite any evidence, any cases, anything. You just offer strangle, non-analogous analogies while ignoring the arguments that destroy your position. Here’s a perfect example:
First, your hypothetical judge would not be accused of breaking the law because he did not, in fact, break law. He is exercising the discretion given to him under the law. This in no way analogous to the president instructing a federal agency to ignore a duly enacted law. How is possible that you don’t understand how different these situations are?
No. No. No. This does not imply that SCOTUS has “more authority over the entire government.” But the judicial branch does have the authority to declare duly encacted laws unconstitutional. The president does NOT have this power. This is how our system works. This has been clear ever since Marbury v. Madison, which you could stand to read Boris.
The president most certainly does not have the power to declare duly enacted statutes unconstitutional and refuse to abide by them, much less to do so in secret. There is a world of difference between a statute “declared” unconstitutional by the president, and a statute declared unconstitutional by a federal court.
your hypothetical judge would not be accused of breaking the law because he did not, in fact, break law. He is exercising the discretion given to him under the law.
As is the president. The ability of the judge to disregard a mandatory sentencing law is no less “breaking the law” than the executive disregarding an unconstitutional requirement for warrents to collect foreign intelligence during war.
This does not imply that SCOTUS has “more authority over the entire government.†But the judicial branch does have the authority to declare duly encacted laws unconstitutional.
Of course it implies SCOTUS has more authority over the entire government than the president has within the executive branch. Don’t play dumb. Declaring a law unconstitutional is formal exercise of judicial authority within it’s own branch by instructing judges and law enforcement to disregard the will of congress. It does not in fact have the power to exercise that authority within the executive branch. The president does.
First, I’m not one of those liberals. Second, those positions aren’t really inconsistent. Those who oppose to the Patriot Act do so on policy grounds. They think it goes too far. But they will readily concede that the Patriot Act is a duly enacted statute. It’s not inconsistent to say that, whatever the law is, the president has to stay within its mandates.
Respectfully, if this was the administration’s point, I would be far less critic than I am. But it’s not. You want us to believe that the administration is essentially saying “we don’t think FISA applies to what we’re doing, but if by some stretch of the imagination it does, we don’t think it would be constitutional.” That we be a more or less reasonable position.
But instead, the administration has stated unequivocally that the type of surveillance they are doing is the type that requires a FISA court order. Here’s Alberto Gonzales at his press conference:
This quote is not taken out of context. It has been confirmed by everything the DOJ, the president, and the vice president, have said since them in describing the program. There is simply no avoiding the fact that the plain and unambiguous language of FISA forbids warrantless surveillance involving U.S. citizens in the U.S.
The president most certainly does not have the power to declare duly enacted statutes unconstitutional
This is just more of the dorky semantics and word games moonbats are so fond of. The AUMF isn’t a formal “Declaration of WAR” and the neither the president nor the DOJ can “Declare a law unconstitutional”. Yadda yadda … blah blah blah
So over and over they claim that since everybody knows SCOTUS can disregard the will of congress when it conflicts with the constitution that they are the ONLY branch that can. If the executive branch is faced with a constitutional conflict it must go a calling on the judicial branch for an official ruling. It’s easy to see where the misunderstanding comes from, but it don’t make it any less wrong.
Boris, I’m getting tired of arguing with a brick wall here. This paragraph is jibberish. Total nonsense. Are you saying that judicial pronouncements are only binding on the judicial branch? If so, that would render the judicial branch totally impotent. Under your understanding of the separation of powers, Boris, neither Congress nor the judiciary has the ability to check the president. The president can unilaterally decide which laws he will follow. That’s absurd. Ever since Marbury v. Madison, it has been clear that the judicial branch is the ultimate arbiter of what the law says. Their word is final. It trumps the president. And, at least until Congress amends the law or amends the constitution, it trumps Congress. This is the only power the judiciary has, but it’s an important one.
If you want to pretend that we live in some sort of monarchy where the judicial and legislative branches lack the ability to check the executive, so be it, but that does not make it so.
Boris, you’re right to suggest that the executive branch has some power to opine on the constitutionaly of statutes, but this power is clearly limited by both logic and long-standing precedent. The president can, for example, choose to veto a bill because he thinks it’s unconstitutional. The executive branch can also issue signing statements or interpretations of laws when they are ambiguous and one possible reading of them they consider unconstitutional. (Such interpretions are, of course, only relevant to the extent they don’t conflict with judicial interpretations of the law).
But the executive branch can’t just decide (much less secretly decide) that a long-standing and unambiguous law is unconstitutional and refuse to abide by it. I cannot stress enough how absolutely looney this position is, and how alone you are in advocating it.
First this …
This does not imply that SCOTUS has “more authority over the entire government.â€Â
then this …
Their word is final. It trumps the president. And, at least until Congress amends the law or amends the constitution, it trumps Congress.
Make up your mind. BTW in which article of the constitution is Marbury v. Madison ??? There is nothing in that case relevant to executive authority exercised within the executive branch. As you continue to claim that SCOTUS authority within the executive branch is greater than the president, you display a moonbat agenda.
And you know he did this, how?
I think we’re all pissing in the wind. There is no one here that knows what the hell the NSA program consists of – the technique, the mechanics, who or what has been targeted, when who or what was targeted and what further surveillance consisted of and what authority (warrant?) that authorized the further surveillance. It’s all a big what if built upon a whole bunch of other if’s.
The President has publicly stated that the program complies with applicable law and is necessary. He certainly isn’t walking back from this position when he says it will continue.
How MF, acthole and AL can, with the certainty they are positing here, proclaim that the President has blatently and willfully performed an illegal act is beyond me. They may be able to argue their interpretation of the law and cite portions of cases supporting their assumptions of these acts, but they are a loooooong way from being the final arbiters. They would have everyone here believe that they have more legal knowledge and judicial insight than the many attorneys at DOJ, NSA, DIA, DoD, CIA and all the other alphabets that make up the IC.
I don’t know about the rest of you but they have a hell of a long way to go to convince me of their omniscience. I particularly like this quip from AL:
Does anyone else see the irony in this. Since almost every operation the NSA undertakes is secret, I would readily agree that this was done in secret. Yet AL denigrates that word and would have you believe that since the President broke the law he should have done so openly, revealing the program. Or perhaps he is insinuating that briefing Congressional leaders on the program on an ongoing basis somehow was not overt enough.
So, AL & MF you guys go ahead and tilt at your windmills. For any portion of your arguements to have any credibility you will need to show that the President performed an illegal act. Unless you can effectively do that, then you are indeed basing arguements, as Jeff has said repeatedly, on hypotheticals.
I’m no attorney, just a physicist, but even I know, MF, that Congress cannot by Congressional action strip the Executive of its Constitutional powers. Congress is not some super legislative body that trumps the other branches of Government. Your concept that Congress may enact any legislation and the Executive is bound by such legislation is laughable.
The president can, for example, choose to veto a bill because he thinks it’s unconstitutional.
Logical fallacies to claim …
(1) The president needs to claim a law is “unconstitutionsl” to veto it.
(2) The president can veto a law passed in a previous administration.
(3) The only constutional authority the president has wrt the EXECUTIVE BRANCH of government is the veto.
And just how many SCOTUS vetos (laws declared unconstitutional) have been OVERRIDEN by congress ???
Not The Same Thing. Is it. Not by a frakkin long shot it aint.
Boris, I’m getting tired of arguing with a brick wall here.
Talk about self parody !!! Combine with …
your capacity for unintentional irony is apparently limitless
Now that’s bust the meter self parody. If you had ever exibited the slightest hint of a sense of humor I would suspect you were trying to make a joke.
Your concept that Congress may enact any legislation and the Executive is bound by such legislation is laughable.
Exactamundo. There is no article of the constitution that gives congress the authority to “regulate” the executive branch and subject it to their will. Just as SCOTUS has the authority to instruct judges to disregard an unconstitutional sentencing bill the president has authority to instruct NSA to disregard certain elements of FISA in conflict with his constitutional duty to protect the country.
You gotta admit, they are kinda cute when they are young enough to still know everything.
If you want to pretend that we live in some sort of monarchy where the judicial and legislative branches lack the ability to check the executive, so be it, but that does not make it so.
The power of the executive is rather sweeping within it’s own branch, just as the power of the SCOTUS is rather sweeping within the judicial branch. So what?
I claim that in my own house I can butter my toast any way I like and drink orange juice any time I want. That sweeping power does not empower me to tell you how to butter your toast or when you can drink your orange juice. So drop the stupid “absolute king” BS.
RLS, you are not a very careful reader. The quotes you pulled out of my previous post where not descriptions of what I think the administration did. They were rebuttals to what Boris claims the president has the authority to do.
And neither MF nor myself were arguing that Congress can simply pass any law and the executive is bound by it. First, in order for a law to become law, it almost always has to be signed into law by the president. Second, if Congress oversteps their authority and encroaches on the executives powers, their remedy is to go to court and seek an injunction stating that the law is unconstitutional. They cannot simply declare that the law is null and void. This is a basic principle constituional government.
They cannot simply declare that the law is null and void.
Did that happen ??? Frak no.
You claim if the executive branch is faced with a constitutional conflict it must go a calling on the judicial branch for an official ruling. IOW judicial authority within the executive branch is greater than the president. That’s just so wrong. Congress could thereby subject the president to their will by simply passing laws that the court refuses to hear. Clearly illogical. Obviously incorrect.
The founders were quite familiar with fighting war and they made it clear that protecting the country requires power unsuited to congress or judges. The notion that executive war power is subject to meddling and interference from the other branches is not just revisionism unglued, it’s suicidal nonsense.
The delusion employed here is that everybody knows the Supreme Court has the power to protect it’s own constitutional authority, as illustrated in my example. Then the assertion is that same Supreme Court has EXCLUSIVE power to protect the executive branch’s constituional authority.
Non sequitor. Marbury irrelevant. The branch responsible for protecting executive constituional authority is the EXECUTIVE BRANCH. They are the experts, the final authority, the last word.
Boris, you truly have the memory of a goldfish. I never said that the Bush administration did in fact declare FISA null and void. You were the one who asserted that they could. I was simply taking issue with your assertion. As I’ve said about a hundred times now, the Bush administration did not do this nor are they arguing that they have the power to do this. They are arguing that the AUMF granted them authority to disregard FISA. So even under their theory, the source of that power is statutory.
You were the one who asserted that they could.
Did that happen ??? Frak no.
This is just a variation of the dorky semantics and word games moonbats are so fond of. The AUMF isn’t a formal “Declaration of WAR†and the neither the president nor the DOJ can “Declare a law unconstitutionalâ€Â. Yadda yadda … blah blah blah
So over and over they claim that since everybody knows SCOTUS can disregard the will of congress when it conflicts with the constitution that they are the ONLY branch that can. If the executive branch is faced with a constitutional conflict it must go a calling on the judicial branch for an official ruling. It’s easy to see where the misunderstanding comes from, but it don’t make it any less wrong.
What of Lincoln’s 1863 assertion that “…the Constitution is not in its application in all respects the same in cases of rebellion or invasion involving the public safety, as it is in times of profound peace and public security…” in light of the case MF and Anonymous Liberal outline above? How does the contention that the Founders would suffer an aneurism at the notion of Executive authority rejected by MF and Anonymous Liberal et al hold up in comparison to Hamilton’s assertion in Federalist 23 that:
These powers ought to exist without limitations, because it is impossible to be foreseen or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite and for this reason, no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense.
. . . the means ought to be proportional to the end; the persons from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained.
I notice as well a careful avoidance of the positions outlined by Jefferson and Madison in regard to Marbury, not to mention Andrew Jackson’s celebrated response to a directive from the Supreme Court.
They cannot simply declare that the law is null and void
From my earlier example here are my exact words:
Does anybody read anything there about Declaring The Law NULL and VOID ??? Didn’t think so.