To answer AL and MF, who continue to raise NSA “domestic spying” questions in the comments here—including the charge that no one who supports the program has addressed Lawrence Tribes’ (evidently, to their way of thinking) dispositive proof that the administration, by way of AG Gonzales press conference “slip ups,” has admitted to breaking the law (a position shared by Jonathan Turley, among others).
But this is a false and disingenuous suggestion. Because not only did I address the issue yesterday, but I have yet to receive a reply to my rebuttal of the Tribe / MF / AL charges. In short, I see this entire dustup as a political battle that touches on three crucial questions: 1) separation of powers (the Executive under Bush has made it quite clear it wishes to reassert eroding executive authority); 2) a desire to protect what’s left of the program’s secrecy by floating hypotheticals, and then battling those hypotheticals from the adminstrations’ reading of applicable law and statute (they claim both Constitutional and statutory authority for the program as the press and administrtion critics have framed it); and 3) are we or are we not at war, and what is the proper way to fight a war on terrorists who embed themselves in our country in order to assume certain legal protections they believe will aid them in carrying out their sabotage; the administration, under AUMF, is treating the al Qaeda threat as a war; civil libertarian absolutists and the Dem leadership are treating it as a law enforcement issue domestically, complete with attendant vigorous defenses of fourth amendment protections for would-be terrorists, including demands for FISA warrants (which were intended as a law enforcement tool, and are in fact, if I’m correct, still be used as such), and spirited attacks on our foreign intel gathering capabilities. In fact, Tom Daschle and those who followed his lead were even baited into publically bragging that they never intended to give the President the authority to guard the homeland—this despite the fact that the 911 attackers acted from within.
In short, I have been arguing that Tribe, et al, are walking into a trap; as lawyers and legal scholars, they are so caught up in their own “powers,” in a nation of laws, to proscribe the actions of everyone—including, it now seems, the CiC in a time of war (see the continued egregious misreadings of Youngstown)—that they have become blind to their own arrogant and showy circumspections. They treat the terror threat as a legal debate and a procedural game, and not with the immediacy it requires.
And so yes—I have addressed what AG Gonzales said; the administration has “admitted†the “right†to perform certain contested legal actions â€â€BUT THEY HAVE NOT, THAT I AM AWARE OF, ADMITTED TO HAVING DONE ANY OF THEM (Hayden and the Prez, in fact, have noted tine and again that domestic scenarios requiring FISA warrant have used FISA warrants); AGG Gonzales, then, is (from my admittedly political reading of the situation) helping to stoke the controversy and draw out the conversation, flushing into the open lawyers representing a congressional / law enforcement view of this war for the inevitable separations of powers battle.
The political benefit for doing this now is multifold:
liberal/civil libertarian absolutists are beginning to look soft on terror, and they appear, in the public mind (though the partisan divide on the question is huge in polling) more concerned with the dubious technical legal protections of embedded foreign agents playing the role of American citizens (with the express purpose of operating within our definitional loopholes) than they are with fulfilling the first mandate of the executive branch during warâ€â€which, under AUMF—granted by Congress—means using all means at our disposal within the law to protect the country from attack. Signals Intel gathering is an established military technique; it has been upheld (or, at least, acknowledged as understood) by every court to be so, and is similarly understood as being under the discretion of the President.
Misstatements of Youngstown aside (as antimedia keeps pointing out), legal statutes cannot take away the CiCs primary mandate. And FISA, as Griffin Bell noted during its legislative history, was intended as a check on domestic law enforcement abuses â€â€not constitutional oversight of foreign intel gathering for purposes of national security.
Similarly, so long as one side of the intercept taes place with in a foreign country, what is happening is considered, under FISA, foreign electronic surveillance; the NSA can make the intercept and provide the FBI a summary of the info. All is proper and legal.
From there, if necessary, the FBI can develop probable cause and apply for a FISA warrant.
The Dems have now effectively tethered themselves legally to the position that protecting US citizens in the US was never authorized by Tom Daschle, et al (a stunning and politically tonedeaf admission), and so the Presidentâ€â€despite counsel of the DoJ, DoD, and NSA legal apparatiâ€â€is criminally culpable for protecting us against embedded enemies hoping to attack from within; conversely, the leaker of this highly classified information is an heroic whistleblowers for placing his questions and his suspicions above his or her official duties to the country (there are proper procedures for “whistleblowing,” and leaks to the NYT are not among them). Up is down, black is white, Bush is J Edgar HooverNixon.
Anti-war leftists and civil libertarian absolutists, too, keep offering the non sequitur that, regardless of whether or not there was a “leak,” it is patently disingenuous to suggest that national security has been compromised (see, for instance, Glenn Greenwald or Atrios; and while you do so, try to imagine them making the same argument for the beating of a prisoner in custody that didn’t result in any broken bones). “PROVE IT,” they say—knowing full well that to do so would mean revealing what is still highly classified and protected about the program, putting the administration and the intelligence community in a catch 22 situation.
However, one frequently speculated upon bit of proof (such as it applies, and we don’t know for certain that it does), is that the leaking of the program alerted our enemies to certain technical aspects of the program (should they be capable of reading between the lines), the most damaging of which being that an automated keyword database that is intstantly triggered may now need to be redeveloped, as enemy communication will simply adjust its substitution word code.
Remember, the Germans and Japanese knew we were listening to them, as well; they just didnt’ thing we could break the code, and so were unconcerned with our technical gadgetry.
Note, too, that much of what I’ve written here is enirely speculative, and that the technology being exploited by the NSA likely problematizes all such questions and conclusions. Ditto the question over point of acquisition, and the nature of the “targets†themselves (FISA warrants are given for “numbers”; disposible phones, therefore, necessitate the need for new warrants each time a phone is changed; and I very much doubt that our lawmakers intended for such a dodge to thwart law enforcement.)
Bottom line: if we are at war—and AUMF says we are—signals intel is perfectly legal and expected (and its underuse would be considered negligent); further, hysterical suggestions of its abuses remain hypothetical and unproven (and, in fact, assurances have been given that FISA is being used in legal situations wherein the statute require it).
The admninistration is not interested in giving away any more of the program’s detail; and so they have offered defenses of the program that apply to all possible scenariosâ€â€constitutional and statutory—and which take into account the legal status of particular US Persons (after Hamdi and bin Laden), and the way these persons (who can become, under certain conditions, redefined as enemy actors) are targeted, including when and how (Pen registries? phone chains? Warranted taps?).
The lawyers pontificating here and elsewhere (MF, Tribe, Turley, Greenwald, et al) that the admnistration has “clearly†broken the law seem to have forgotten how clever legal dodges can be in making perfectly legal what seems, it a slightly altered context, prima facie, illegal. That is, these lawyers—who believe themselves capable of making the kind of fine distinctions necessary to sink the administration’s legal claims—are unaable to accept that the adminstration’s legal teams are equally capable of making such fine legal distinctions in order to protect themselves against legal challenges and appeals.
— But why do we trust Lawrence Tribe or Jonathan Turley or Glenn Greenwald moreso than we do the collective legal minds whose sole purpose it is to vet the legality of operations that fall under their direct legal purview (justices from the NSA, the DoJ, the DoD, and the FISA Court of Appeals?)—who have the added advantage of being in receipt of all the facts.
Which is to say, who, exactly, is being arrogant here?
Again, I believe the legal opportunists on the left and in the civil libertarian camp have been baited into betting big on a lousy hand. I could be wrong, but at least I’m laying my cards on the table.
The truth is, I don’t know enough to say whether or not the administration has operated legally I can only surmise, based on what we has been so far revealed of the program. On the the other hand, my opponents continue to insist that the case for law breaking is settled—even while they accuse me of blindly following my “leader.”
The ironies abound for those who wish to see them; but unfortunately, some folks consider themselves to erudite to be taken in by Bush morons, and their fidelity to law—particularly the kind that pertains to domestic law enforcement and an overbroad reading of the fourth amendment—will, I believe, prove to be their political and legal downfall on this matter.
****
****
(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)
Keep up the good work man.
<blockquote>But why do we trust Lawrence Tribe or Jonathan Turley or Glenn Greenwald moreso than we do the collective legal minds whose sole purpose it is to vet the legality of operations that fall under their direct legal purview<blockquote>
This is the gist of my point of view. Stamping one’s feet and shouting, “Because Larry Tribe said so…” in the face of REAL (not imaginary) threats from people who fly airplances into buildings carries as much weight as Lindsey Lohan after a purge.
Keep manning the battlements, Jeff.
zzzzzzzz…
Good write up, Jeff. I’m with wishbone—throwing a fit is no way to conduct a legal argument.
The interesting thing here is that your cards are indeed on the table. If the legal opportunists can’t consider this possibility, and adjust their strategy accordingly, they have to be as stupid as some lefties portray President “Chimpire” Bush.
Hey, Jeff, not that it has to do with the NSA, but you must visit this link – some people are simply incapable of not being funny. Thank God this one didn’t win in Ohio in 2004.
Just to add a note Jeff in regards to the “whistleblower” Mr Doughnut boy,
When receiving a Secret Clearance and above, you agree not to reveal Classified Information for Life, unless the Information has been declassified.
This poor slob has just made the biggest mistake of his life, and there is no whistleblower protection on this one to protect his fat ass…..
I hear Levenworth has great donuts.
And bagels too…
Jeff, proposition for you:
Since we agree, at least in part, that there are unknown details about the NSA program that may take the surveillance being conducted out of the “electronic surveillance” regulated/proscribed by FISA;
and since we agree, at least in part, that this argument revolves, in part, around whether Article II war-time executive and CiC powers allow the President to ignore/circumvent/waive/break the laws of Congress that might “hamper” his war-making ability;
let’s have the following discussion, which is directly relevant to the NSA issue:
Do you believe, Jeff et al., that the President’s signing statement regarding the McCain torture bill is an accurate statement of his authority?
The statement reads:
“The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.”
Well?
I being the “et al” say that it makes no difference whether I believe that it is “an accurate statement of Presidential authority”. I think it is important to note that the President and his legal advisors believe it is an accurate statement.
It is very possible that the final determination will be made by SCOTUS. The President could be wrong as he was on the McCain/Feingold bill. He may very well regret signing this one as he did that one.
oops – forgot the link (I feel so silly…):
http://today.reuters.com/news/newsarticle.aspx?type=politicsNews&storyid=2006-01-12T133844Z_01_DIT249104_RTRUKOC_0_US-KERRY-IRAN.xml&rpc=22
One other thing, Jeff:
You’ve misstated my position on the NSA issue in the body of this post. I do not think the administration “clearly” broke the law.
I’ve long maintained that (a) the nature of the interceptions might be such that they are not implicated by the definition of “electronic surveillance” under FISA section 1801(f) and thus FISA does not apply; (b) I cannot for the life of me understand why, if (a) were true, Gonzales would say “The Foreign Intelligence Surveillance Act provides–requires a court order before engaging in this kind of surveillance that I’ve just discussed and the President announced on Saturday” OR why he wouldn’t have just said something to the effect of “For technical reasons, FISA does not apply to the interceptions at issue” (which doesn’t give one damn thing away); and (c) if the interceptions at issue do fit within FISA’s definitions under 1801(f), then the legal arguments (re Article II and AUMF) forwarded by the Administration and persons on this and other righty websites are incorrect and meritless, would be rejected by any court, and should be the object of much scrutiny and ire within Congress, whose institutional prerogatives under the Constitution are the main victims here (besides for decent legal analysis on blogs)(and absent future evidence of abusive spying on innocent people for political or other non-security related reasons).
Hopefully that clarifies things a bit.
However, one frequently speculated upon bit of proof (such as it applies, and we don’t know for certain that it does), is that the leaking of the program alerted our enemies to certain technical aspects of the program (should they be capable of reading between the lines), the most damaging of which being that an automated keyword database that is intstantly triggered may now need to be redeveloped, as enemy communication will simply adjust its substitution word code.
Don’t want to hog bandwidth but didn’t remember seeing a link to this discussion by Tom Maguire, adding additional firepower to the destruction of Atrios’ non-sequitor.
Hmmm.
Mobius strip meet baseball bat.
Jeff you’re going to have to club them over and over again, until the end of time. You’ll be 90 years old, and still blogging, when this will come back up again.
Better you than me pal.
(My apologies if some of the points I make have been covered in the 90-post Protein Wisdom epic on FISA…I’ve read most of these points, but may have missed something. Maybe you might want to put together a FISA FAQ for people to reference.)
I’ll take a shot at addressing part of your rebuttal of the MF/AL arguments. Your comments from an earlier post:
First of all, it’s not at all clear that setting aside current FISA regulations “serve(s) the national interest”. One needs to examine if/how the administration is being hindered in intelligence gathering by FISA, and then weigh it against potential losses in American civil liberties.
From what I can see (and if there are other advantages, feel free to comment), putting aside the FISA regulations provided the administration with four potential advantages: less time needed to initiate wiretapping, less legwork necessary by lawyers and others involved in presenting cases to FISA, no need to deal with a judge in case the judge disagrees with the case made for wiretapping, and (related to the last point) the ability to legally listen to any conversations between a US citizen and someone outside of the country (either via targeted listening or through some sort of massive collection/filtering system).
The argument for time and legwork is in some ways combined: it supposedly takes “days, sometimes weeks, to get the application for FISA together”, and because of that, it’s too burdensome to go through the FISA application process. However, this is something that can be worked around without having to ditch the FISA standards. The government can hire more lawyers if the staff preparing FISA applications is overworked, and there’s always the 72-hour retroactive time period for eavesdropping. So the national interest question here is this: Should we allow the executive the ability to listen in on the conversations of American citizens without judicial oversight because it would take more lawyers/legwork to follow FISA regulations? Most would say no, as the executive’s ability to monitor enemy communications is hardly restricted by this limitation.
The third potential advantage is a cruicial one: If a FISA judge decided that a warrant was without merit, then the administration couldn’t monitor that person. If I am gathering this correctly, your argument is that the executive has the right to decide who it wants to listen to, unfettered by the judiciary, as part of the war-making powers of the Constitution (see AUMF). Opponents of your position would say that U.S. citizens have a 4th amendment right to privacy that can’t be crossed solely at whim of the executive. Hence there’s one major reason for the FISA court; to decide whether the executive is acting within its role as one waging war when listening to citizens, and not as one breaking the 4th amendment.
So based on this “advantage” of putting aside FISA regulations, the national security question is the following: Should we allow the executive the ability to listen in on the conversations of American citizens without judicial oversight because a judge might say no? Unless there is some reason to think that the FISA court is operating in bad faith, this would be an absurd argument. If the government can’t make the case that monitoring a citizen is for gathering enemy intelligence, then it shouldn’t be able to listen to that citizen. (And again, this is a clear reason for a FISA court: to make sure that the executive is acting in good faith when it listens to American citizens.)
The fourth potential advantage of getting rid of FISA is that the government can use some sort of system that casts a wide net, via some sort of massive wiretapping/data collection/filtering system for tons of calls between American citizens and those overseas. It’s unclear how such a system would work, as it could involve some sort of keyword search or maybe involve listening to all calls from certain geographical areas. Because it’s unclear what systems are being utilized, it’s a bit more difficult to formulate what the national security question is. But in any case, it is clear that the bar for “probable cause” that would be involved in bringing a case to FISA would be substantially lower (e.g. we can listen because they said “bomb”, or we can listen because they called someone in Riyadh). So here, the national security question is this: Should we allow the executive the ability to listen in on the conversations of American citizens without judicial oversight based on a standard substantially lower than “probable cause” in the FISA courts. Or more directly, can the government set aside our 4th amendment rights based on things like keyword searches, where someone is calling, x-degrees of separation from Al Qaeda members, etc.
So it’s not at all clear that ignoring FISA regulations is for the national interest. The administration is still able to monitor enemy communcations within the bounds of FISA. The government is only limited by FISA when it can’t make a case that its monitoring is involved in the war on terror (see advantage #3) or when the standard for allowing eavesdropping (and impinging on citizens’ 4th amendment rights) is minimal.
First, if the classified program is ok by the FISA review courts, then why would a FISA judge resign after finding out about the secret executive order? Second, you have no evidence that by leaking the program, the leakers have “destroy(ed) its efficacy as a way to protect us”. Third, if the secret executive order is found to be illegal, this won’t be considered as a case of an illegal and arrogant leak; the leakers will rightly be considered as whistleblowers (see my comments here).
Because he’s a partisan Democrat?
Jeff wrote:
And it comes from the mouths of people usually quite strident (and rightly so) in asserting that people are presumed innocent until proven guilty. The burden of proof is on those making the charge. In the ensuing probes of the program, the Admin. may have the burden of producing certain infor within its control, but highly-classified infor would probably be disclosed and examined in camera, not in the press—which is as it should be.
In the meantime, those claiming the law was broken without knowing all of the facts are proving themselves bad lawyers—quite apart from misreading Youngstown and Art. II.
“First, if the classified program is ok by the FISA review courts, then why would a FISA judge resign after finding out about the secret executive order? “
Easy question. The judge has forgotten his proper role in government and decided to resign in a fit of pique based on his arrogant belief that he was in charge of the entire intelligence apparatus of the United States.
What is the over/under on how long before his book comes out?
tw: early-> before the elections, yeah.
Whats the over/under that it’s his prison diaries?
Jeff, this is really frustrating me, because I’ve already explained this several times. Your characterization of the purpose of FISA could not possibly be more wrong. FISA has nothing whatsoever to do with law enforcement surveillance. We have an entirely different statute (Title III) which governs that. In fact, under the original language of FISA, to get a warrant you had to demonstrate that “the primary purpose of the surveillance is to obtain foreign intelligence information†(The Patriot Act amended this to say “significant purpose”). The entire point of this requirement is so that FISA is used ONLY for foreign intel gathering and NEVER for mere law enforcement. That’s FISA’s entire reason for being. Otherwise it would be unnecessary, superfluous, and it would violate the 4th amendment. FISA warrant standards are much less rigorous that those under Title III, and the ONLY reason for that is because FISA is all about foreign intel gathering, not law enforcement. Look it up please. You’ve stated this incorrectly a handful of times just today.
I’m sorry, Jeff, but your interpretation of Gonzalez’ words is truly bizarre. There is no indication whatsoever, either textually or logically, that he is speaking hypothetically here. He said that FISA requires a court order for the type of surveillance that the president has “announced” and that he (Gonzales) has “discussed.” He said this in the context of describing a program that began in 2002. Why call a press conference to discuss a hypothetical program? Plus, the president himself has described on several occasions now practices which he claims are ongoing that clearly implicate FISA (i.e. surveillance to which a U.S. citizen is a party).
I suppose that both Bush and Gonzales could be lying to us in some Machievellian scheme to draw Bush’s critics into some sort of trap, but that suggestion seems more than a little nuts. Why claim that you are not complying with a statute if, in fact, you are? Why feed a scandal if you could put it to rest entirely? Plus, it’s not as if only crazy lefties have taken the bait. There are a lot of right-leaning folks (Brownback, Specter, Thomas Kean, etc.) who have openly expressed concern.
And if this is some devilishly clever ploy to lure critics out onto a branch before chopping it off, it doesn’t make much sense. What’s the punchline? It’s not much a “gotcha†moment to reveal that–despite what you said earlier–you are in fact complying with the law. The response of every single critic would be “so why did you tell us you weren’t following FISA in the first place?†I can just picture Bush and Gonzales blinking weirdly into the camera as they try to explain that one.
Respectfully, you need to be more selective about your arguments if you want to remain credible on this issue. There are some arguments over which there is genuine disagreement among serious people (e.g. whether the AUMF authorizes this program) and others which there is not (whether FISA is being complied with, whether the president has exclusive authority in this area, etc.). A good way of separating the colorable arguments from the baseless ones is to look at what the administration itself is arguing. They are not claiming (or even hinting) that the program complies with FISA procedures. They are also not claiming that FISA is unconstitutional, that Congress somehow lacks the power to regulate the surveillance of U.S. citizens within the U.S. Indeed, the ONLY argument they are making is that the AUMF somehow authorized the President to disregard FISA’s prohibitions. That’s it. So when you offer up arguments that have already been conceded by the Bush administration, you’re on pretty shaky ground.
Respectfully, you need to be more selective about your arguments if you want to remain credible on this issue.
*snicker*
Two words: Blog books. Seriously, Pajamas Media should have an imprint and publish this stuff.
Is it so hard to use TinyUrl.com to shorten links so they don’t blow the page formatting?
First, if the classified program is ok by the FISA review courts, then why would a FISA judge resign after finding out about the secret executive order?
Don’t you mean, why would only one judge resign?
Public officials fighting a war never put out a little disinformation to keep the enemy confused about strategies, projects and tactics. Never. Especially not when it comes to spying. It’s never happened in the entirety of recorded history.
And a public official has never made one statement for political consumption while planning on making arguments in the alternative if they get into court. That’s never happened either.
TW: naive.
Public officials fighting a war never put out a little disinformation to keep the enemy confused about strategies, projects and tactics. Never. Especially not when it comes to spying. It’s never happened in the entirety of recorded history.
Don’t worry, Karl, it’s not that I don’t think Bush is capable of public deception. He certainly is, as he has demonstrated over and over again. My point was that this particular alleged deception doesn’t make any sense. How are national security interests (or his political interests) served by asserting that they have not been following the law, if in fact they have been following the law? That doesn’t make any sense. If the program is good for the country and doesn’t violate FISA, why not just say so? Why jeopardize the program by making it appear to be illegal?
This is a classic Ockam’s Razor situation, where the simplest answer is almost surely the correct one. The reason Bush and Gonzales have indicated that this program does not comply with FISA is precisely because it, in fact, does not comply with FISA. That explanation is roughly a million times more plausible than the strange complicated deception that you and Jeff are postulating.
I have a big problem with taking what appear to be misstatements or over-generalizations on the part of Alberto Gonzales as if they were immutable mathematical symbols. When looking at public statements in general, it is often necessarily to accept the reality of misstatements and treat them as incorrect information rather than as some massive Freudian slip. This form of argumentation in which you grab a misstatement and attempt to construe it as factual may work well with the True Believers or in a B- courtroom drama, but frankly I find it totally lacking in any probative value.
How in general, you might ask, to we determine which statements were factual and which were either errantly made or at least overreach in the scope of their implications? I would say in a manner similar to that which is advocated by Jeff: Namely consider the comments in the context of the remaining statements made by the administration.
If the conclusions you are drawing from a limited set of statements seem at odds with the preponderance of the remaining body of statements made by the administration in this case, then chances are you have overstepped the domain of applicability intended by the original speaker. This certainly seems to be the case to me with respect to your interpretation of Gonzales’s remarks.
This remark:
lacks any credibility for similar reasons. You are equivalencing “not argued” with “conceded”, which is a serious stretch of the facts.
Finally you are still falling into a pre-9/11 mindset when you try and separate Title III from FISA. As the administration has argued, and the FISA court have concurred this represents a false “dichotomy between foreign intelligence and law enforcement efforts to protect national security”. This false dichotomy is regarded as one of the causative agents of the law enforcement failure to prevent the 9/11 attacks.
Carrick, are you deliberately being obtuse? The whole point here is that Gonzales’s (and Bush’s) statements do NOT seem at odds the remaining body of statements. In fact, every single statement made by the administration is consistent only with the notion that they have not been complying with FISA. This kind of up-is-downism is really starting to get weird.
You’re conflating totally different issues, Carrick. My point before was that FISA was created solely as a instrument of foreign intel gathering, not law inforcement, as Jeff claims. Since 9/11, there has indeed been an effort to break down the wall, so to speak, between intelligence agencies and law enforcement agencies. But this in no way supports the contention that the president has the power to work outside of FISA. FISA states that it is to be the “exclusive” method of surveillance for national security purposes.
AL:
That’s exactly what their AUMF argument is about—the Admin. is claiming the program complies with FISA because FISA has the “except as provided by statute” language. You don’t have to accept that argument, but you do have to accept that it is their argument.
As for the razor, I guess you must be one of that exceedingly tiny minority of liberals who thinks that the Admin. is super-competent and—in the mold of its leader—never makes an unintentional misstatement. That they are better at parsing words than the Clinton Admin.
Speaking of which, perhaps libs would have been happier had the Admin just sent Cheney out to say there was no controlling legal authority.
Anonymous Liberal:
I mistook what you were saying there. Sorry. (So many players in this game, I lose track of who is saying what.) I agree that they say that they are not complying with FISA (though it would probably require a new court decision to make a determination of compliance with FISA of course).
However:
Anonymous Liberal:
Foreign intelligence, the court has ruled, can be properly construed as a form of law enforcement:
“The main purpose of ordinary criminal law is twofold: to punish the wrongdoer and to deter other persons in society from embarking on the same course. The governments concern with respect to foreign intelligence crimes, on the other hand, is overwhelmingly to stop or frustrate the immediate criminal activity. As we discussed in the first section of this opinion, the criminal process is often used as part of an integrated effort to counter the malign efforts of a foreign power. Punishment of the terrorist or espionage agent is really a secondary objective, indeed, punishment of a terrorist is often a moot point.”
(blockquotes were producing some nasty truncated text here…sorry)
When you say “FISA was created solely as a instrument of foreign intel gathering”, you are drawing a distinction without a difference. Simple as that.
AL, especially:
ISTM that you’re continuing to disregard one of Jeff’s primary arguments: that the Bush administration is acting, in part, to re-exert the power of the Executive Branch in wartime. They came out swinging rather than hunkering down, which – given the players – is suggestive that they’re confident that they hold a strong and defensible position; they continue to hold their original line, which suggests that they’re not shaken by Tribe or his ilk. The Legislature is attempting to exert its power to constrain the Executive’s actions at this time, I think (with Jeff) because they aren’t convinced that we’re at war; if they did think we were at war, I believe, giving them the benefit of the doubt, that they’d be more willing to let the CiC do his job.
I understand that “some” FISC judges, speaking anonymously but nonetheless speaking to the press, have expressed concern about whether warrants they signed were “tainted” by the NSA program (http://www.washingtonpost.com/wp-dyn/content/article/2006/01/04/AR2006010401864.html). Seems to me that this fact alone suggests one more reason for the Bush administration to bypass the FISC, if it did – because the Bush administration didn’t want to gamble on the tightness of judges’ lips.
And finally… any comments on Echelon? I come across it here and there, but it doesn’t seem to enter the discussion at large.
The NSA is part of the executive branch. 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. There is no constitutional power giving congress the authority to “regulate” the president’s exercise of executive constitutional authority, just as there is no constitutional power giving congress the authority to “regulate” SCOTUS exercise of it’s constitutional authority. SCOTUS would simply declare congressional meddling in it’s affairs as “unconstitutional” and disregard. The president can simply disregard.
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. Defunding NSA would be political suicide, and impeaching the president would not prevent Dick Cheney from continuing the program.
I absolutely accept that this is their argument. In fact, I’ve said a number of times already that I think this is the ONLY argument that is not entirely meritless. But Jeff and others aren’t just arguing that the NSA program complies with FISA in this limited sense. They are questioning whether the type of searching being done even implicates FISA. That’s what I’m taking issue with. Gonzales and Bush have both made it clear that the type of surveillance being done is the type that would ordinarily require a FISA warrant. They just think the AUMF has excused them from any obligation to seek such a warrant.
I think you’re right that the Bush administration is trying to exert a robust theory of executive power. What I don’t accept is Jeff’s suggestion that the Bush Administration is purposely giving the false impression that they are not complying with FISA in an effort to advance their more ambitious theories of presidential power. That’s crazy. No one would rely on the legal theories currently being advanced by the administration unless they absolutely had to; they were expecting this program to stay secret, and now that word of it has gotten out, they have no choice but to rely on what are, at best, relatively weak legal theories.
Secondly, while they may outwardly exude confidence, the Bush administration is not at all confident that their legal theories will hold up to judicial scrutiny. Their argument in Hamdi was shot down 8-1. The other cases out there are not shaping up well for them. either. Many conservative judges (Scalia, Luttig) seem hostile to the administration’s arguments. Telllingly, the Bush administration has been frantically trying to get the Padilla case mooted over the last few months because they’re convinced they are going to lose. And relative to the other important cases in the pipeline, the legal theory being put forward to justify the NSA program is easily the weakest.
The Bush administration is acting tough now because the scandal is still only in the political realm. You don’t need strong legal theories to dodge the political fall out, particularly when you can just demonize your critics as rule-of-law obsessed sissies. But it’s a bluff. They’re hoping they will never have to defend this program in court. If they ever do, expect them to back down and seek to have some sort of legislation pushed through Congress to provide legal cover for the program and moot the legal case.
Ah, Boris, where to begin. Your understanding of the powers of Congress and the constitution in general is a little shaky. You don’t seem to have a very good sense of how our government operates. Congress absolutely has the power to regulate the President’s excercise of power. Nearly every single statute is such a regulation. Congress can also regulate the judiciary, including the Supreme Court. Who do you think writes the statutes that govern federal jurisdiction? Congress has wide latitude to determine what cases the courts get to hear.
It is true that Congress may not usurp an area of exclusive executive or judicial authority, but that’s a very limited realm. The framers clearly made Congress the strongest of the three branches, and for good reason. No one has ever seriously suggested that Congress lacks the power to regulate the surveillance of U.S. citizens within the U.S., which is what FISA does. Notably, even the Bush administration is not suggesting that FISA is unconstitutional.
So long story short, your theory of the separation of powers in no way corresponds to the action system we live under or our Constitution.
Congress can also regulate the judiciary, including the Supreme Court.
Congress can regulate whatever it wants.
ie “The Supreme Court shall rule that any law passed by Congress is constitutional”
SCOTUS can decide for itself what can be overriden, as can the Executive. You claim there is some hard and fast rule only you understand but that is in fact BS.
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. You seem to claim (falsely) that SCOTUS deciding that case proves judicial authority OVER the Executive branch. It Did 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, not your mumbo jumbo.
No one has ever seriously suggested that Congress lacks the power to regulate the surveillance of U.S. citizens within the U.S.
WRT foreign intelligence Executive authority empowers NSA to override statute. Anywhere. Anybody.
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.
made Congress the strongest of the three branches
The flaw in your logic is simply this, if congress can regulate the exercise of executive constitutional authority, then the executive branch is SUBJECT to the legislative branch.
If P then Q
Not Q therefore not P.
First of all, about Tribe.
I saw various swipes at Tribe that avoided engaging his arguments, before I made my own comment calling for some kind of direct, argument by argument response.
I saw Jeff Goldstein’s recent comments, where he says he responded to Tribe yesterday, and went through the entire thread of his responses, and never found anything approaching a direct response to Tribe’s arguments. One argument I did see in various spots, including a reference to “dispositive proof” by Goldstein, is the idea that somehow (’arrogant’
liberals think that their opinions are definitive and superior, which is what is “meant” (ie read into) someone pointing out that he is one of the leading Constitutional scholars in the country. This is also reflected in the silly argument about “trusting” Laurence Tribe. It isn’t a matter of trust; it is a matter of arguments and evidence marshalled. RWers “trust” their leaders, (as do some on the Left) without accountability. I don’t think Tribe himself would expect people to “trust” his judgement as opposed to evaluating his arguments.
Not in the least. Constitutional law is not hard science. It is a matter of interpretation to some extent, and therefore we look at arguments that are advanced. Tribe has come down strongly arguing that the NSA program is clearly unConstitutional and is one of the leading Constitutional scholars in the country. So far, only potshots and one reference to “seventeen[!]” prior postings by Jeff Goldstein have been adduced. This notion of the issue having been addressed “before” is a total dodge. At the very least, provide a link, as has been done with other postings, to where in particular a particular argument has been addressed. Instead, what I see is that RWers feel that when they address an argument, or feel that they have addressed it, that when the argument comes from the center or left, the RW answer, not from a leading Constitutional scholar, but from someone more RW and thus somehow higher in some sort of social hierarchy, is definitive. Surely if what Tribe says is not absolute end-of-discussion proof positive—and neither I nor, in my suspicion, others who have cited his views, so hold—surely ‘prior discussion’ of an issue, or the self-impression of prior “refutation” of an argument on this blog should be considered any more definitive. At the very least, when you claim that an argument has been addressed before, especially one as SIGNIFICANT even if not proof-positive as Tribe’s, it would make sense to specify what the argument is and where (by a link) that specific argument has been addressed. Even better is a blockquote, so we can see the passage together with the argument to which it corresponds. I have followed Goldstein’s original posts at least since the NSA thing broke, (some only skimmed, I confess), and many of his others. Some of Tribe’s arguments are new to me. Others have not been adequately addressed at all.
In particular, I have not yet seen a single example of what kinds of issues are both legitimate and for which FISA courts are inadequate. One issue raised are throwaway telephones. I am sure that the courts, and, if necessary, new legislation to address that particular problem are hardly insurmountable. After all, contrary to RW hype, courts DO make law, including RW courts, all the time. They make law when they face a situation not adequately addressed in legislation—as in the formulation of strict liability by Justice Traynor. If throwaway phones are a problem, where are the legal briefs ON THIS ISSUE, and where has an attempt been made to address the issue WITHIN the existing legal frameworks, and been found wanting? After all, having cited possible problems with FISA, the next step is to test the waters, as the legal system functions.
Here is the most DIRECT confrontation with Tribe that I have seen (citing Tribe “et al”):
This seems to me to be the essence of the “legal” critique of Tribe’s position: that, especially in the ‘court of public opinion’, all these legalisms and procedural concerns are mere arrogant and showy circumspections, regardless of their particulars. All the discussion or presumption that Tribe has, among others, misread Youngstown (and remember, as I said above, applying a case to new circumstances is interpretative, so there are different possible “readings” of how a case is applied), is really beside the point. That is the true reason why actually summarizing Tribe’s reading of the case and a polemic of why his reading is wrong are irrelevant. Since we are at war, the executive should be able to do whatever it pleases without review, and the public will buy that, and all these legalisms are simply beside the point. Since there is obviously no set of particular arguments or cases that could make a difference, this is the “refutation” of Tribe.
Incidentally, the public might not be outraged over civil liberties violations (they rarely are) enough to vote out the Reps, but I do not think that on balance that polls have shown that extraordinary rendition or the snooping on libraries under the Patriot Act or other issues have been big winners for them either. Rather, where the Reps control all three branches of government, and have Diebold machines (as in Votergate Ohio 2005 as well as the other issues in 2004), they can sustain themselves in power even when they are unpopular—largely, I would admit, for other reasons. But really, these issues are not decided in the court of public opinion, but in the “court” of power, where all politics is decided, without much accountability in this day and age.
In fact, under the original language of FISA, to get a warrant you had to demonstrate that “the primary purpose of the surveillance is to obtain foreign intelligence informationâ€Â
Never has been and, hopefully, never will be. I know.