Some interesting discussion spun off from my recent post on “The Wisdom of Wiretaps”—a few responses (in the form of an exchange) I’d like to highlight here.
First, here’s Tom Ault, who takes the tack of dividing the NSA “domestic spying” question into competing impulses / questions—one having to do with the program’s legality, the other having to do with the pragmatic nature of the program, from the standpoint of national security and public policy—with a concentration on the intersection between those two (competing?) impulses. Here’s Ault:
I think there are two closely-related issues to discuss in relation to the NSA surveilance of foreign terrorist suspects:
(1)Whether the program is legal.
(2)Whether the program constitutes good policyMost of the discussion so far has centered around whether the program is legal. However, enough legal experts have weighed in on this question that the NSA program cannot be said to be illegal or unconstitutional on its face, but neither can its legality be considered a slam-dunk. Furthermore, many arguments about the legality or illegality of the program depend on classified details that are not known to the public at large.
Consequently, I don’t think further discussion of the legality of the NSA surveilance program is productive. Like it or not, the legality of the program will be decided by a court, perhaps the FISA court or more likely the Supreme Court, which are the only bodies with the authority and competence to decide the question. (Whether their decision will be proper and wise is another question entirely, but can only be debated after the decision has been made, and such debates will only address whether the program should be legal or not, not whether it is legal or not.)
Thus, I think it would be more productive to focus on the second question: whether the NSA program constitutes good policy or not. Although like the first question, the answer to this second question depends on unknown classified details, we can still discuss whether and under what conditions the loss of privacy the program entails is worth the gains in security. We can also discuss what sorts of oversight should be present to prevent abuse from occuring, whether under the current administration or a future one. For example, much like the PATRIOT act, I believe the NSA program is needed to track down terrorists who are hiding in America and stop them from carrying out another attack, but I would not want to see it expanded to fight the war on drugs.
Of course, discussing whether the NSA program constitutes good policy means dropping the rhetoric about Bush the criminal fuhrer and impeachment and discussing the question in terms of the trade-offs it entails. If Presidents could be impeached for bad policy, then no President in American history would have every completed a four-year term. Opponents of the administration persist in focusing on the first question long after it can be usefully discussed precisely because it gives them the ability to spin the Bush administration as an out-of-control monster trampling on the rights of Americans in the name of fighting a boogeyman who, if he exists at all, is not quite as fearsome as the Administration would have the American people believe. They wish to have the legality of the program decided not by the courts or Congress, but by public opinion and outcry. While this may be another club for the Democrats to try to beat the administration with, it still doesn’t offset their primary weakness, which is a lack of good policy suggestions to fight the war on terror. Even if the NSA program is illegal, or if it is legal but bad policy, the Democrats have yet to offer a better means of ending the threat from Islamofascit terrorists, or even a coherent plan at all, and until they can do so, it will be difficult for them to make any gains towards recapturing the Congress or the White House.
[My emphases]
Mr Ault is, in my estimation, essentially correct—though I am more dubious than he is about the Courts’ ultimate role in deciding the legality of questions concerning the President’s power to authorize foreign intel surveillance done under wartime conditions (power I believe are undisputedly granted under Article II of the constitution and put into play by AUMF granted by congress); the reason for this reluctance, as I’ve pointed out on number of occasions now, is that what we are witnessing is a not really a legal battle (the DoJ’s position vs the position of civil libertarian and constitutional scholars hostile to the program are enough at odds to make claims of “clear” lawbreaking absurd on their face), but is rather the simulacrum of a legal battle—one with the ostensible trappings of concerns over civil rights and legal minutia, but one that is, at its core, a battle over separation of powers (an area in which the Courts are loathe to intrude). Question: Does / can FISA statutes constrain Presidential constitutional powers (Carter AG Griffin Bell, during the legislative history of FISA, insisted that it would and should not)? And secondly, does it matter in deciding this question whether or not we are in fact at war?
From what we know of the program thus far, there has been no ostensible evidence of law breaking (and in fact, the President in his speech today again reiterated the very narrow scope of the warrantless aspect of the program, as well as its legal and bi-partisan political oversight); which is why critics of the program are at great pains to argue the program’s “faults” in hypotheticals, using the worse-case scenarios of a slippery slope they are forced to ice and re-ice in order to convince the public that such a slippery slope even truly exists¹. And this is likewise why critics want the scope of the leaked classified information expanded (this is being phrased as giving it a “full airing” before the “entire congress”—not a wise or common procedure for the discussion of highly classified information), because—having convinced themselves that laws have indeed been broken, they are now compelled to find those instances of malfeasance to vindicate their lengthy hypothetical dissertation (each one of which proceeds from bad faith and lack of fact), or else be revealed for overreaching partisan opportunists disguised as civil libertarians.
In response to Mr Ault’s dichotomous characterization of the nature of the programs’ public debate to this point, anonymous liberal agrees in principle with the framing, but takes issue with several of the points that proceed from Ault’s understanding of how we should view that framing:
Tom Ault:
You’re right to say that this debate involves two separate and unrelated issues:
1)Whether this spying program is legal and
2)Whether the program is good policy
I’m perfectly willing to believe that the program is good policy, that it’s an effective way of fighting terror without encroaching unreasonably on civil liberties. But the fact is, none of us knows enough about the program to judge whether it’s good policy. All the specifics of the program are classified.
The reason the debate has so far focused on the legality of the program is obvious: 1) unlike the policy questions, we have enough information to make an informed judgment about the program’s legality, and 2) if the program is illegal, the policy question is irrelevant.
[Let me interject here to add that this first assertion is patently false, somthing that I have show again and again in my responses to Glenn Greenwald, et al; but more on that later. Consequently, the if/then statement that launches the rest of anonymous liberal’s response begs the question.] Anonymous liberal continues:
The administration itself has conceded that the program does not comply with FISA. The arguments proffered by the DOJ in support of the program are incredibly weak and fly in the face of well-established Supreme Court precedent. If this program is indeed good policy, there is no good reason for not seeking to have FISA amended to allow for it.
I’m continually amazed that so few people are capable of separating this issues out in their own minds. Conservative sites like this one offer endless speculative arguments as to why this spying program is a good idea. But this amounts to an argument about what the law SHOULD be, not an argument about what the law IS.
The cases cited by the WSJ are laughable in their lack of support for the administration’s legal theories. The line from Sealed Case is mere dicta and was clearly NOT intended to suggest that Congress lacks the authority to regulate the surveillance of U.S. citizens within the U.S. And the Troung case evaluated pre-FISA law. As anyone who knows anything about constitutional law is aware, there is a world of difference between the president’s authority absent a law and the president’s authority in the face of a congressional law directly on point. So Troung is totally irrelevant.
I’m getting pretty tired of arm-chair lawyers opining about things they clearly don’t understand.
If the program at issue is vital to national security, it’s well past time for the President to seek congressional approval of it. If he can’t secure approval for the program (in a Republican congress) then so be it; that’s the will of the people. But it’s high time to end this charade that the President can pick and choose which laws to follow so long as we are fighting terrorism somewhere in the world (i.e. forever). That is so clearly NOT what the Framers intended when they drafted the constitution that it’s stunning how many self-described “originalists†are willing to endorse it for clearly partisan reasons.
[all emphases mine]
Any response to such a litany of mischaracterizations, veiled ad hominems, and assertions of ignorance and bad faith on the part of one’s opponents needs begin with a preamble that it is obvious to me that anonymous liberal—his intimations to the contrary—has not read my posting on the matter (nor followed the detailed legal debates that followed in the comments), otherwise his claims that I and my commenters have been at pains to suggest that the program SHOULD be legal rather than that we believe it TO be legal make no sense whatsoever.
But be that as it may.
My response, in short, is thus: not surprisingly, anonymous liberal—like several of his ideological counterparts with whom I’ve discussed the matter—have things exactly backwards. As I have been at pains to point out in each post on the subject, from what we know of the actual program, not a single law has been provably broken. That the admnistration has chosen to engage the hypotheticalsâ€â€often hysterical and farfetched hypotheticals, I submit—of the programs’ critics seems to me to serve three purposes: 1) to assert Presidential war time powers as a way to have a debate on constitutional separation of powers (a goal this administration has been spoiling for since election); 2) to create a legal debate over the matter within the bounds of the very hypotheticals set up by civil libertarian and leftist critics (what better place than to do battle, if you believe in the righteousness of your position, than on the home turf of the opposition); and 3) to bait the left and civil libertarian absolutists into overplaying their hands by having them suggest forcefully and repeatedly that laws potentionally technically broken in an effort to serve the national interest (defending the homeland) are far more dangerous to the republic than the actions taken to prevent catastrophic attacks by an embedded enemy whose strategy is to manipulate the loopholes in our legal system; further, the have baited the left into arguing repeatedly that illegally and arrogantly leaking the classified nature of the program—and so destroying its efficacy as a way to protect us (without any concrete proof that laws have been broken)—is somehow more laudable than protecting state secrets that the DoJ, the NSA, the Administration, and the FISA review courts have all held to be within the purview of presidential authority.
It also bears noting yet again that the President DID seek congressional approval of the program when he appealed for (and had passed) the joint resolution authorizing the use of force against our enemies shortly after 911  which use of military force necessarily and commonsensically includes the use of gathering signals intel for purposes of monitoring foreign intel (though not, in all cases, for purpose of prosecution).
If anonymous liberal is really, as he says, tired of “armchair lawyers opining about things they clearly don’t understand,†he might begin by applying that standard to yourself. Because every one of the legal arguments I’ve read suggesting that something illegal has happened depends upon facts nowhere in evidence—and upon an understanding of the program that is at best highly speculative, and at worst completely wrong (given what anonymous liberal admits are the unknown details of the acquisition of the intel). And while it is perfectly fair to pronounce on the legality and rectitude of the policy based on what we do know, it is not, consequently, perfectly fair to condemn the policy based on what we do not know, but insist on positing as if such things were dispositive.
Finally—and AGAIN—the administration has NOT conceded that the program does not comply with FISA; instead, it has said the program does not run afoul of FISA because it meets one of the exemptions built into the FISA statutes â€â€statutes never meant to constrain the President’s war time power (and a conclusion backed up by any honest reading of the electronic surveillance definition or 18 [for a dissenting view, see here]).
So noâ€â€like Glenn Greenwald, et al, before you, you simply beg the question: we DO NOT have enough information to make an informed judgment about the program’s legality, as you erroneously assert, and upon which you build the entirety of your case against the administration; and 2) because we have no evidence the program is illegal, the policy question is perfectly relevant—and is the important question if we are to have, as you claim you wish us to have, a cultural “discussion” over the balance of security with civil liberties.
Is always, I welcome your responses.
Finally, the newest breathless bit of documentation upon which the progressive / legal left and civil libertarian absolutists are pinnin their hopes is Harvard legal scholar Laurence Tribe’s 6-page letter to John Conyers (PDF) [reprinted below the fold]
The Honorable John Conyers, Jr.
United States House of Representatives
2426 Rayburn House Office Bldg.
Washington, DC 20515-2214
Dear Congressman Conyers:
I appreciate your interest in my views as a constitutional scholar regarding the legality of the classified program of electronic surveillance by the National Security Agency (“NSAâ€Â) that the President authorized within months of the September 11, 2001, attacks by Al Qaeda, a program whose existence the President confirmed on December 17, 2005, following its disclosure by The New York Times several days earlier.
Some have defended the NSA program as though it involved nothing beyond computer-enhanced data mining used to trace the electronic paths followed by phone calls and e-mails either originating from or terminating at points overseas associated with terrorists or their affiliates or supporters. But that type of intelligence gathering, whose history long antedates September 11, 2001, typically entails little or no interception of communicative content that would make it a “search†or “seizure†as those terms are understood for Fourth Amendment purposes (see Smith v. Maryland, 442 U.S. 735 (1979) (the “pen register†case)), or “electronic surveillance†as that term is used in the Foreign Intelligence Surveillance Act (FISA)(see 50 U.S.C. § 1801 (f)(1)-(2)). Unfortunately, as Attorney General Gonzales candidly conceded in a press briefing on December 19, 2005, the program under discussion here authorized precisely such interception of “contents of communications.†See http://www.whitehouse.gov/news/releases/2005/12/print/20051219-1.html.
Although there may be room for debate about the boundary between content interception and mere traffic analysis in other contexts, the Attorney General eliminated speculation on the point when he said in that press briefing that the “surveillance that . . . the President announced on [December 17]†is the “kind†that “requires a court order before engaging in†it “unless otherwise authorized by statute or by Congress,†and it is undisputed that a court order is precisely what the Executive Branch chose to proceed without. The President was therefore being less than forthright when, two weeks after admitting that he had authorized what the FISA defines as “electronic surveillance†that would normally require a judicial warrant, he told reporters in Texas that the “NSA program is one that listens to a few numbers†because “the enemy is calling somebody and we want to know who they’re calling . . . .†See http://www.nytimes.com/aponline/national/AP-Bush.html?ei=5094&en=8b73b4903455b75... (1/3/2006). To be sure, the President did say “we want to know who they’re calling and why,†to “find out what the enemy’s thinking,†hopefully alerting the attentive listener to the possibility that the contents of individual messages are being intercepted. But by centering the discussion on what sounds more like number-crunching than content-trawling, the President encouraged the program’s other apologists to depict it as relatively innocuous by shifting attention away from precisely what makes this program of secret surveillance so legally controversial.
Equally diversionary is the frequently repeated suggestion that, whatever the program intercepts, the only messages it reaches are “communications, back and forth, from within the United States to overseas with members of Al Qaeda,†to quote the Attorney General’s December 19 press briefing. Again, however, the attentive listener might have caught the more precise account the Attorney General let slip at another point in that same briefing, when he noted that the surveillance that had been going on under presidential auspices for roughly four years in fact reaches all instances in which “we . . . have a reasonable basis to conclude that one party to the communication is a member of Al Qaeda, affiliated with Al Qaeda, or a member of an organization affiliated with Al Qaeda or working in support of Al Qaeda.†Given the breadth and elasticity of the notions of “affiliation†and “support,†coupled with the loosely-knit network of groups that Al Qaeda is thought to have become, that definition casts so wide a net that no-one can feel certain of escaping its grasp.
A strong case can be made that, even under the circumstances confronting the United States in the aftermath of the terrorist attacks launched by Al Qaeda on September 11, 2001, and even with assurance that conversations are being intercepted solely to aid in preventing future terrorist attacks rather than for use as evidence to prosecute past misdeeds, so indiscriminate and sweeping a scheme of domestic intrusion into the private communications of American citizens, predicated entirely on the unchecked judgment of the Executive Branch, violates the Fourth Amendment “right of the people to be secure . . . against unreasonable searches and seizures†even if it otherwise represents an exercise of constitutional power entrusted to the President by Article II or delegated to the President by Congress in exercising its powers under Article I.
The precise question of such a scheme’s consistency with the Fourth Amendment has never been judicially resolved  nor is it likely to be resolved in this situation. For the scheme in question, far from being authorized by Congress, flies in the face of an explicit congressional prohibition and is therefore unconstitutional without regard to the Fourth Amendment unless it belongs to that truly rare species of executive acts so central to and inherent in the power vested in the President by Article II that, like the power to propose or veto legislation or to issue pardons, its exercise cannot constitutionally be fettered in any way by the Legislative Branch.
Any such characterization would be hard to take seriously with respect to unchecked warrantless wiretapping. As the Supreme Court famously held in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), an emergency presidential takeover for a limited time of certain critical publicly held corporations like Bethlehem Steele Co. and the United States Steele Co., in order to avert the threat that would be posed to our national security by a stoppage of the steel production needed for weapons and other materials essential to the ongoing Korean War, falls outside that tiny category of congressionally illimitable executive acts and is indeed unconstitutional unless affirmatively authorized by Congress. If that is so, then certainly an unchecked presidential program of secretly recording the conversations of perhaps thousands of innocent private citizens in the United States in hopes of gathering intelligence potentially useful for the ongoing war on a global terrorist network not only falls outside that category but misses it by a mile.
The only escape from that conclusion would be to hold that inherent and illimitable presidential power to abridge individual liberty and erode personal privacy categorically exceeds presidential power to displace temporarily the corporate managers of entirely impersonal business property, without confiscating, transferring, or otherwise touching the property’s ultimate ownership by the holders of its shares. But our Constitution embodies no such perverse system of priorities.
The presidential power at issue in this case is therefore subject to the control of Congress. And that Congress has indeed forbidden this exercise of power is clear. The Foreign Intelligence Surveillance Act of 1978 unambiguously limits warrantless domestic electronic surveillance, even in a congressionally declared war, to the first 15 days of that war; criminalizes any such electronic surveillance not authorized by statute; and expressly establishes FISA and two chapters of the federal criminal code, governing wiretaps for intelligence purposes and for criminal investigation, respectively, as the “exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.†50 U.S.C. §§ 1811, 1809, 18 U.S.C. § 2511(2)(f). The House version of the bill would have authorized the President to engage in warrantless electronic surveillance for the first year of a war, but the Conference Committee rejected so long a period of judicially unchecked eavesdropping as unnecessary inasmuch as the 15-day period would “allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency.†H.R. Conf. Rep. No. 95-1720, at 34 (1978). If a year was deemed too long, one can just imagine what the Conferees would have said of four years.
Rather than reaching for the heaviest (and, in this context, least plausible and hence most ineffectual) artillery by claiming an inherent presidential power to spy on innocent American citizens within the United States even in the teeth of a clear and explicit congressional prohibition of that technique of intelligence-gathering beyond the first 15 days of a declared war, the administration points to the FISA’s own caveat that its prohibitions are inapplicable to electronic surveillance that is “otherwise authorized†by a congressional statute, which of course encompasses a joint resolution presented to and signed by the President.
The Authorization to Use Military Force (AUMF) against Al Qaeda, Pub.L. No. 107-40, 115 Stat. 224 §2 (a) (2001), is just such a resolution, the administration claims, for it authorizes the President to use “all necessary and appropriate force†against “nations, organizations, or persons†associated with the terrorist attacks of September 11, 2001, in order to protect the nation from the recurrence of such aggression. Although that resolution of course says nothing about electronic surveillance as such, neither does it say anything specifically about the detention of enemy combatants fighting for Al Qaeda in Afghanistan as part of the Taliban, the organization from within which the Al Qaeda terrorist network launched those infamous attacks. Yet, in the face of congressional legislation (the Non-Detention Act) expressly forbidding the executive detention of any United States citizen except “pursuant to an Act of Congress,†18 U.S.C. § 4001(a), the Supreme Court in Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004), held that such detention in the United States of individuals who are U.S. citizens captured while fighting against American forces in Afghanistan â€Âfor the duration of the particular conflict in which they were captured,†in order to prevent them “from returning to the field of battle and taking up arms once again,†escapes the prohibition of that anti-detention statute by virtue of its implied authorization by the AUMF as an exercise of the “necessary and appropriate force†Congress authorized the President to use, a conclusion supported by the fact that such detention for this limited purpose is a “fundamental and accepted . . . incident to war.†124 S.Ct. at 2640.
If Hamdi treated the AUMF as an “explicit congressional authorization,†124 S.Ct. at 2640-41, for imprisoning an enemy combatant despite AUMF’s failure to mention “detention†or “imprisonment†in so many words, the argument goes, the AUMF must be read to impliedly authorize the far less severe intrusion of merely eavesdropping on our terrorist enemies, and on members of organizations that indirectly support them. After all, the collection of “signals intelligence†about our enemies abroad is no less an accepted incident of war than detaining the captured enemy  just as signals intelligence of foreign agents (including some going to and from the United States) has been accepted as an inherent power of the President even in the absence of war. Surely, then, now that Al Qaeda has launched a war against us, and now that Congress has responded with the functional equivalent of a declaration of war in the AUMF, even the entirely innocent American citizen in Chicago or Cleveland whose phone conversation with a member of an Al Qaeda-supportive organization happens to be ensnared by the eavesdropping being undertaken by the NSA cannot be heard to complain that no statute specifically authorized the Executive to capture her telephone communications and e-mails as such. Invasion of that citizen’s privacy was, alas, but one of war’s sad side effects  a species of collateral damage.
The technical legal term for that, I believe, is poppycock. Hamdi obviously rested on the modest point that statutory authority to kill or gravely injure an enemy on the field of battle impliedly authorizes one to take the far less extreme step of detaining that enemy, solely for the duration of the battle, to prevent his return to fight against our troops. Power to engage in domestic electronic surveillance on a wide scale within the territorial United States  intercepting, recording and transcribing conversations of unsuspecting citizens who have committed no wrong, are not foreign agents traveling to and from the United States, and in fact pose no threat themselves but merely happen to have accepted a phone call or received an e-mail from, or sent an e-mail to, a member of an organization that is said to be supportive of the Al Qaeda network  is by no stretch of the legal imagination a “lesser included power†contained within the power to repel future terrorist attacks by Al Qaeda on the United States.
Thus the argument that the AUMF does not impliedly authorize this wide-ranging and indefinitely enduring program to extract potentially useful intelligence from ordinary citizens easily survives challenge based on Hamdi. More than that, Hamdi in fact yields added support for the conclusion that the AUMF cannot provide the requisite authorization. For the Hamdi plurality agreed “that indefinite detention for the purpose of interrogation,†even of conceded enemy combatants, “is not authorized†by the AUMF. 124 S.Ct. at 2641 (emphasis added). It follows a fortiori that indefinite subjection of American citizens who are not even alleged to be enemies, much less enemy combatants, to ongoing invasions of their privacy in the United States for purposes of obtaining valuable information is not authorized either.
Moreover, it makes a difference that the FISA’s specific regulation of all electronic surveillance in the United States deals with the subject at issue here in a far more comprehensive and elaborate way than the Anti-Detention Statute involved in Hamdi dealt with the military detentions at issue there  military detentions that the Court treated as falling within the Anti-Detention Statute merely for the sake of argument when it held only that, if that statute otherwise applied, then it was trumped by the more specifically relevant AUMF. Here, in contrast, there can be no serious doubt that it is the FISA, and not the AUMF, that deals more specifically with the activity in question.
Construing the AUMF, taken in conjunction with the President’s power as Commander in Chief under Article II, as implicitly conferring broad authority to engage in whatever warrantless surveillance the President might deem necessary in a war of indefinite duration against Al Qaeda-related terrorism even in the face of FISA’s prohibitions would entail interpreting the AUMF far more broadly than anyone could, in truth, have anticipated. If that AUMF authorization were indeed this broad, the President must simply have overlooked its continued existence when he recently chided Congress for failing to reenact the PATRIOT Act’s provisions. To be sure, the AUMF, even on the Justice Department’s extravagant reading, enacted no criminal proscriptions of the sort that parts of the PATRIOT Act included. Nor did it purport to authorize the President to enact such criminal laws, morphing into some sort of one-man legislature. But, on the government’s broad reading, the AUMF certainly had armed the President, as of September 18, 2001, with the authority to take most of the steps the PATRIOT Act expressly authorized  including all of the purely investigative and preventive actions it empowered the President to take  until the recent sunsetting of some of its provisions. And it had empowered him as well, again on the government’s reading, to override any statutory prohibitions that might otherwise have stood in his way.
On the government’s proposed reading of the AUMF, in other words, the PATRIOT Act, insofar as it confers the powers of investigation and prevention most fiercely sought by the President, becomes a needless and mostly redundant bauble. A statutory construction with such bizarre and altogether unanticipated consequences  and one that rests on so shaky a foundation  would be inadmissible even if accepting it would not leave us with serious questions under the Fourth Amendment, which it of course would.
Finally, it is telling that Attorney General Gonzales, when asked in his December 19 press briefing why the administration hadn’t simply proposed to Congress, in closed session if necessary, that it amend FISA to grant legislative permission for the kind of domestic surveillance program the President deemed essential to the nation’s security, replied that the administration had concluded such a request would probably have been futile because Congress would most likely have denied the authority sought! To argue that one couldn’t have gotten congressional authorization (in late 2001, when the NSA program was secretly launched) after arguing that, by the way, one did get congressional authorization (in late 2001, when the AUMF was enacted) takes some nerve. Apart from the obvious lapse in logic, it is axiomatic that legislative reluctance to relax or eliminate a prohibition is no defense to a charge of its violation.
The inescapable conclusion is that the AUMF did not implicitly authorize what the FISA expressly prohibited. It follows that the presidential program of surveillance at issue here is a violation of the separation of powers  as grave an abuse of executive authority as I can recall ever having studied.
Yours truly, Laurence H. Tribe
[all emphases mine]
What is immediately noticeable (and most striking) about this solicited letter is that it quite pointedly addresses pronouncements made by AG Gonzalez, while quite quietly avoids those made by the President, the FISA review court, and Gen Hayden) in order to conclude that some of the powers the AG is intimating by way of assertion could be unconstituional or illegal (a debate, I’ve noted, the Executive branch has been spoiling for); he also fails to address the possibility that AG Gonzales’s candid admission “in a press briefing on December 19, 2005 […] that “the program under discussion here authorized precisely such interception of “contents of communications†didn’t in fact use FISA warrants as a way to listen to that content (NSA is allowed to gather content and provide summaries of said content to the FBI).
The rest of Tribe’s legal analysis cleaves to the same set of hypotheticals that all of the legal critics of the program continue to cite—hypotheticals about which there are no actual and pertinent instances that have been revealed (and that regular reviews have likewise failed to turn up); that is, Tribe’s analysis uses those mentions of principles of executive authority the administration wishes to push as part of it’s hypothetical defense in order to prove that such principles were in fact in play practically and actually.
But there is no such proof. And in fact, supporters of the program have noted time and again that in the kinds of questionable instances Tribe suggests notes are “precisely what makes this program of secret surveillance so legally controversial,” but Bush, the DoJ, and General Hayden have said that warrants were in fact obtained.
Again, this legal wrangling is, in my very humble estimation, all a show—an attempt by the administration to bait critics of staunch homeland support into technical legal battles that rely on a fundamental misunderstanding of a program whose particulars remain mostly highly classified.
That Laurence Tribe believes, from reading the NYT or listening to the hypothetical speculations of critics (and the executive authority trial balloons floated by the AG), that he has proof that “the presidential program of surveillance at issue here is a violation of the separation of powers  as grave an abuse of executive authority as I can recall ever having studied”—is a testament to the power of legal presumtuousness and arrogance over a willingness to wait for the facts in evidence necessary to make such a pronouncement to present themselves clearly.
Finally, Tribe (and other critics) make a big deal over the fact that
Attorney General Gonzales, when asked in his December 19 press briefing why the administration hadn’t simply proposed to Congress, in closed session if necessary, that it amend FISA to grant legislative permission for the kind of domestic surveillance program the President deemed essential to the nation’s security, replied that the administration had concluded such a request would probably have been futile because Congress would most likely have denied the authority sought! To argue that one couldn’t have gotten congressional authorization (in late 2001, when the NSA program was secretly launched) after arguing that, by the way, one did get congressional authorization (in late 2001, when the AUMF was enacted) takes some nerve. Apart from the obvious lapse in logic, it is axiomatic that legislative reluctance to relax or eliminate a prohibition is no defense to a charge of its violation.
But such is not at all axiomatic—and in fact goes to the very heart of the controversy that is being played out here, specifically if one believes, as I do, that we are witnessing a separation of powers pissing contest and not a legal debate.
To wit: Had the President sought the authority of Congress, he would have been conceding that Congress indeed had the authority to constrain his actions under FISA; but it has been the administration’s contention that Congress has no such authority, and so what amounts, in effect, to asking their permission, is to surrender executive authority.
Secondly, the admnistration believed under its reading of the Constitution (one that has been held, despite certain strained readings of Youngstown to the contrary) that the President had already in fact been granted congressional approval by virtue of AUMF.
Again, it simply boggles the mind to argue that the Congress was granting the President powers to protect us in any military way possible—so long as that meant they agreed not to use signals intel, the most powerful military tool at our disposal. And yet this seems to be the position of Tribe, Daschle, and a host of others jockeying to make some sort of coherent legal argument to weaken the President and problematize the program.
None of the aquired information (and Tribe, like ever other critic before him ignores the logisitical questions raised by Echelen about where and how the intel is acquired as proscribing the legality of FISA with respect to foreign to domestic intel gathering involving content—a point I discussed earlier on a number of occasions, and a point on which the court found for the the NSA), was intended to be used in a criminal proceeding. In such cases (with certain acceptions involving those pre-designated as foreign agents), due process is required. And Bush has made clear—as has the NSA—that in those scenarios, all the legal protections provided for US citizens under the fourth amendment have been followed.
Finally, Tribe uses a cheap debating trick to try to present Bush’s motives in the worst possible light—citing his desire to bring Congress into the decision-making process (via the PATRIOT Act) as proof that he doesn’t believe he actually has the authority under AUMF to conduct the kind of signals intel gathering that he so clearly (given every available lower court precedent) does.
In short, Tribe’s entire piece is more of the same: an attempt to debate hypotheticals on hypothetical grounds—which, while such has been invited by the adminstration—I suspect will have no bearing on what has actually been done, though it will by design have a tremendous subsequent bearing on the political fallout over the separation of powers, particularly on legislative creep that insists aconstitutionally that the legislature has the right to checks that were never intended for it to be granted. From an electoral perspective, voters will get to decide if they want the President authorizing the surveillance of al-Qaeda connected (unspecified) US Persons, or whether they are willing to support, on tenuous principle alone, a rather dubious and contested statutory authority based on outdated technology (and a potentially unconstitutional attempt to abridge executive power) which would make it a crime for the president to try to protect the homeland from attack without first having evidence sufficient for a warrant (including probable cause) that the attack is about to be launched—even though that Presidential authority cannot, against US citizens, lead in most cases to a criminal prosecution without corroborative evidence (as the NSA doesn’t “arrest” anyone).
Whether or not making this the key issue in 2006 will be enough to save the GOP in midterm elections is another story, however (h/t Ray Smith for the Morris link).
****
(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, and here.)
*****
¹ And interesting examination of this phenomenom is evidenced in the series of polls I’ve discussed over the course of my examination of the NSA “domestic spying” story—including the Rasmussen v Zogby polls. Most recently, however, this ABC poll shows a fairly equal split, though a bit of digging into the internals shows that the results are skewed heavily by self-identified political affiliation. This argues to me not—as left-liberals would have us believe—that they are the clear champion of civil rights (one need look no further than their desire to expand the nanny-state powers of the federal government, from “sin taxes” on junk food to universal healthcare to the opposition of school choice to city-wide smoking bans, et al), but rather that they have come to see this issue as a viable political issue. I believe they are making a grave political miscalculation, but that is beside the point; the point is, this has become a political football disguised as a civil liberties battle—particularly in light of the history of executive assertion of the very powers under discussion here. Further, this political gambit is being hyped even further to distract from the clear violation of law (under Clinton) that occurred when the story was leaked.
I don’t get it.
Sincerely,
Hugh Hewitt
This is a pissing contest the left cannot win. The more it participates, the more it plays into the hands of those in the center and on the right who are not going to say to the executive branch, “Please don’t protect me so hard.” And the contest is over the moment the inevitable domestic attack happens.
We’ll look back and wonder why we spent so much time wringing our hands over this issue.
</i>
My only concern will be if Bush starts locking up people who were found to be trading in child porn as a result of these NSA searches.
(because you know, there’s nothing that says fundamentalist Islamic terrorists can’t be pedophiles, too.)
Some of us have been doing that since the story broke. The real story is government bureaucrats who think they have the right to leak to the NYT.
So, this is what you have been doing all day . . . .
Always heard that President Bush was a shrewd poker player, your comment (below) adds more evidence to that impression:
Guess this issue is part of the campaign strategy for the mid-term elections.
It’s interesting to see the plethora of hypotheticals floating about, but before my palms even touched to begin wringing, Bush did his televised Saturday morning radio address, the morning after and my hands have been unwrung ever since.
I’m going to have clenched fists though (they already are, over the leaking), if somehow they force the action to stop and Americans die because of it.
At this point I consider the discussion a battle of wills as opposed to a battle of facts. If Jeff and his ilk do not continue to hold the hard line of defending the program regardless of the legal proceedings outcome, the liberals will control the dialogue. I honestly don’t believe that liberals care about facts so much as they want to control the court of public opinion. Liberals left unchallenged will yell the loudest and hold the market share of the general public. The vast majority of US citizens are not sophisticated enough to weave through the facts and create an informed opinion.
Viva La Goldstein!
Jeff,
I appreciate the effort, but with clueless twits like anonymous liberal (poster child for deaf to irony in the armchair QB camp) stuck on “this is just like Himmler and the Gestapo,” careful, thoughtful reasoning is not going to carry the day.
Christopher Hitchens had it right, these guys truly believe Chimpy’s administration is a bigger threat than terrorism. I literally cannot understand how the neurons have to fire to create that vision of the world.
Never mind the ADDITIONAL boatload of information regarding the executive, legislative, and judicial branches’ individual perspectives on the issue, which have as much in common as me, the planet Neptune, and the average Kostard (discounting the orbits of the final two, anyway).
I am doing serious damage to my teeth’s enamel from the constant grinding.
Jeff, first of all, let me apologize for the tone of my comments last night (which you quote above). Though I stand by the substance, I was in a pissy mood for unrelated reasons, and I should have been more civil. I appreciate the fact that you are engaging critics such as myself because I think this type of dialogue can be very constructive.
I’ll have more to say later, but for now, if you don’t mind, I’m going to cut and paste my rebuttal from the previous thread (edited to reduce some of the unnecessary snarkiness).
—
So noâ€â€like Glenn Greenwald, et al, before you, you simply beg the question: we DO NOT have enough information to make an informed judgment about the program’s legality, and 2) because we have no evidence the program is illegal, the policy question is perfectly relevant.
You can’t have it both ways. If we don’t have enough information to judge the legality of the program, we certainly don’t have enough to judge its policy merits. If you insist on remaining agnostic about the former, you have to remain agnostic about the latter. Policy analysis is, after all, much more fact-intensive than legal analysis.
It also bears noting that the President DID seek congressional approval of the program when he appealed for (and had passed) the joing resolution on the use of forceâ€â€which includes the use of military intel for purposes of monitoring (though not, in all cases, of prosecution).
Rubbish. The topic of warrantless wiretapping was never even raised during the AUMF debate. No one in Congress thought they were giving the President permission to do warrantless wiretapping in controvention of FISA. Senators Brownback and Specter (among others) have made this clear. Plus, shortly after the AUMF, the White House sought and Congress passed the Patriot Act which amended FISA in a number of important respects to help fight terrorism. Those amendments would be both unnecessary and redundant if the AUMF authorized the circumvention of FISA. And, let’s be frank, there is no case law at all that supports the idea that a vague joint resolution supercedes a very specific statute, especially when the joint resolution in no way mentions the statute and it is clear that Congress did not intend to change it in any way. Moreover, FISA contemplates war, it has a whole section on it. So the wartime/peacetime distinction is empty as well.
You’re also wrong about what the president has conceded. On several occasions now he has conceded that U.S. citizens were wiretapped without a warrant. That plainly violates FISA. And tellingly, the administration has not even argued that the spying they’re doing complies with FISA procedures.
Finally, Jeff, your suggestion that the “other statutes†language in FISA is some kind of super loophole which justifies all this is silly. That line refers to Title III and the other pre-existing wiretapping statutues. It was included in order to make it clear that FISA did not supercede them. It does not refer to the AUMF, particularly when that resolution makes no mention of FISA and was never intended to authorize wiretapping of U.S. citizens.
Larry tribe just cannot stop auditioning for that ever elusive SCOTUS seat in the next Dem administration can he? Damned fool knows better too.
OMG! You can’t search without showing probable cause and a warrant!
Nobody did.
How can we know that! You must reveal teh secrets!
Why? You show probable cause that we need to.
OMG!!!11!! We can’t show porbable cause until you let us see secrets!!!!
You can’t get a warrant based on probable cause uncovered by the search, it doesn’t work like that. You have to show probable cause first.
OMG!!!!!!!!!!1111!!one!111eleven!!!! What r u hiding??!!!!11??? itz teh overthorw of goveernmentz!!!!!!
Is Laurence Tribe the guy with the eyebrows that look like a couple of squirrels perched on his head?
Wait, never mind, that was Kunstler. Carry on.
Aside from a few potshots at Laurence Tribe, I would be interested in a full-dress critique of his arguments. He is, after all, considered one of the leading Constitutional scholars in the country, in particular concerning issues of the presidency.
If his arguments are wrong, then let’s here them refuted one by one.
I also think we should debate the point raised by Natesnake:
Do the people here even care if some presumably misguided Court finds that the NSA program is in part or wholly illegal? Are the supposed benefits of the program (and anonymous liberal’s point that we don’t know enough about the program EITHER to provide the kind of specific examples of illegal applications OR to evaluate its usefulness) so enormous that even the procedures of law in a RW dominated system in all three branches are insufficient?
I still haven’t seen someone come up with a realistic example of where FISA’s generous provisions are insufficient. My main critique of the ‘Al Qaeda and its affiliates’ etc portion of Tribe’s argument is that it would seem that strong evidence of any of the criteria he mentions in that quote would get the feds an automatic warrant under FISA. Although the examples are kept secret—and then examples from this realm of secrecy are repeatedly demanded of critics—logic would suggest that the program, proceeding outside the framework of FISA, would involve most importantly snooping that would not readily gain approval under the frameworks already established.
It is speculation (as is almost all the argument on the subject in defense of the program and its legality) but it is logical speculation.
So noâ€â€like Glenn Greenwald, et al, before you, you simply beg the question: we DO NOT have enough information to make an informed judgment about the program’s legality, as you erroneously assert, and upon which you build the entirety of your case against the administration; and 2) because we have no evidence the program is illegal, the policy question is perfectly relevantâ€â€and is the important question if we are to have, as you claim you wish us to have, a cultural “discussion†over the balance of security with civil liberties.
Jeff, there’s a strange head-in-the-sand quality to your argument. I’ll be the first one to admit that we really don’t know a whole lot about this program, which makes an analysis of its policy merits impossible. But we do know some things. For instance, Alberto Gonzales has stated clearly that “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.” And the president himself has stated that the NSA is intercepting calls to which U.S. citizens are parties. From a legal standpoint, that’s the only fact we need to know. FISA unquestionably prohibits warrantless surveillance of U.S. citizens.
You can, of course, argue that FISA is unconsitutional, or that FISA was superceded by the AUMF, or that the AUMF is an “other statute” under FISA, but these are all legal arguments. They don’t depend on any facts we don’t already know. So unless Gonzales is lying, we have all the information necessary to assess the legality of the program (although perhaps not all 4th amendment-related issues).
But while the legal debate is ripe for discussion, the policy debate is most certainly not. We don’t know how the program works, what techonology it employs, what safeguards or oversight (if any) are in place, or if there has been any abuse. All of those questions are relevant to a policy analysis.
“Rubbish!”
Such an eloquant labeling of your own arguments Anonymous.
Windy’s back! I mean Cloudy!
There can be no full-dress critique of Tribe’s arguments, because they are, essentially, made up. As Jeff pointed out in the post itself, he assumes a number of things that are not known facts and bases his analysis upon those assumptions. GIGO.
That’s because it is secret. Here is a suggestion Einstein: put some Senators on the Intelligence Committee with some actual intelligence to oversee it.
This is one of the goddamdest things I think I have ever seen. Have more people ever had such a huge argument over something they all admit they don’t know shit about?
Oh, nonsense. These are the Democrats. If an attack happens, they will swing around right back to “the President didn’t do enough to protect us” without even breaking stride.
Two weeks later Kerry will joing them.
Spin and argue your way to the conclusion that unfettered spying on Americans by the unchecked Executive branch is just spiffy. But some day, and soon, a Democrat will occupy the White House again (Delay and his ilk’s fantasy of a permanent majority not withstanding) and then we shall see the Republicans once again revert to being suspicious of government power. It’s not illegal as long as its a Republican (kind of like lying to Congress with Clinton vs Bush).
I think we have to set the legality issue aside because we cannot definitively conclude it is or is not. I mean it can still be constitutional even if it isn’t legal.
And it’s possible it may never be decided if the courts skirt the separation of powers issue like they are wont to do.
The question of whether it is good policy is the one that’s important, I think. Even though we don’t know the specific details of the program, is it good policy to try to identify al Qaeda in the US even it means invading the privacy of some USPERS? As mentioned, NSA doesn’t arrest people.
Though I’m sure the answers to the policy question depend solely on how much of a threat people believe al Qaeda is. I mean what level of terrorism inside the US would some people accept? Conditions as they are in Iraq? I mean, there are just a few hundred actual terrorists in Iraq setting off car bombs.
A few major blackouts, a poisoned reservoir here and there, random shopping mall attacks, oil tanker crashes into buildings. Little stuff like that.
Would people accept that, presuming al Qaeda would never ever have the capabilities to do much more than that?
I don’t think so.
My fear is that people think they’re safe from al Qaeda because there hasn’t been an attack since 2001—without realizing that maybe, just maybe, this program is the reason why.
In fact, my feeling is that the program should simply continue as is WITH NO CHANGE IN THE LAW.
Because I’m not sure I would want to make this stuff actually legal according to statute.
Let it continue in all its unsettled legality glory. But bitch about it every year.
My two cents.
Yup, Adam. I’ve put no thought into this—I’m just a spinner who wants unfettered, unchecked (both falsehoods, incidentally—unless you consider regular FISA reviews, bi-partisan congressional committee oversight, and frequent bi-partisan attorney revisitation by the NSA, DOJ, and DOD being “unchecked” and “unfettered,” which does real damage to plain language) police powers given to the President.
Thankfully, though, we can rely on the vigilance of people like you to protect us against those of us DEMANDING a police state. Does it matter that you don’t know the particulars, or can not point to any actual abuses?
HELL NO!
YOU are against the program on PRINCIPLE!
Which, comes right down to it, is the strongest claim for the AUMF argument. If it were true that the AUMF doesn’t authorize the collection of SIGINT, then it would mean that we can shoot them, send the special operators to find them and capture or kill them, or shoot missles at them from a Predator … but we can’t listen to their phone calls.
This is an absurdity that I think even a liberal lawyer would have trouble expressing.
With a straight face, at least.
“Opponents of the administration persist in focusing on the first question long after it can be usefully discussed”
If the program is illegal, then the discussion is quite usefully continued till the criminals are being punished, good or bad policy.
Is it possible to put an entire political party on suicide watch?
I particularly like the assertion that Truong and the dicta from In re Sealed Case are not on point. Every court that has decided the issue has held that the POTUS has inherent authority to conduct warrantless foreign surveillance. The response from Anon. Lib. and others is that the Truong line of cases predated FISA, which they assert to be a valid Congressional curb on Presidential authority. But if there is inherent authority to conduct warrantless searches for foreign surveillance, what power does Congress have to remove that authority? The FIS Court of review wrote: “We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.” That’s a simple recognition that Art. II of the Constitution cannot be eliminated by a statute.
Karl writes:
I particularly like the assertion that Truong and the dicta from In re Sealed Case are not on point. Every court that has decided the issue has held that the POTUS has inherent authority to conduct warrantless foreign surveillance. The response from Anon. Lib. and others is that the Truong line of cases predated FISA, which they assert to be a valid Congressional curb on Presidential authority. But if there is inherent authority to conduct warrantless searches for foreign surveillance, what power does Congress have to remove that authority?
Karl, you’re confused. You’re conflating the concepts of “inherent authority” and “exclusive authority.” The Troung court simply held that the president doesn’t need statutory authorization to engage in warrantless wiretapping for national security purpose. The court did not even suggest, however, that the president has exclusive authority in this area (if it had concluded that, it would have had to declare FISA unconstitutional, which it clearly didn’t do). There are lots of areas where Congress and the President have concurrent authority, and therefore, in the absense of a statute, the president is free to act (this is what inherent authority means). But it’s a wholly different question whether the president has the authority to act when Congress has clearly expressed its will to the contrary through legislation. That’s the holding of Youngstown steel. In these situations, the president’s power is at it’s “lowest ebb.” No one has ever claimed that Congress lacks the authority to regulate the surveillance of U.S. citizens within the U.S., which is what FISA does. The argument that FISA somehow unconstitutionally encroaches on the president’s exclusive authority is radical to say the least. And if you read the DOJ letter closely, you’ll see that even the Bush administration isn’t making that argument. Rather, they’re claiming that the AUMF somehow superceded FISA or gave the president permission to ignore FISA. The exclusive authority argument just doesn’t have any legal support.
Not that Jeff needs any help, but this was too good to pass up.
Where to begin?
First of all, the NSA notified Congress of the program just days after 9/11, according to Nancy Pelosi. Therefore, Congress had to know about warrantless surveillance before the AUMF, rendering your point moot.
Secondly, saying “Senators Brownback and Specter (among others) have made this clear.” implies a profound lack of skepticism of some of the most polticial people on the planet. How you could ever take the word of any Senator at face value is, well, difficult to imagine.
Finally, to assert that the Patriot Act alleviates the need to do what NSA is doing (what little we know) is to display a profound ignorance of the vast difference between military information collection and law enforcement investigations. Why on earth do you suppose President Bush has stated that FISA warrants are sought when it’s appropriate?
No one seems to be listening, but I’ll keep saying it. The NSA is a military organization, not a law enforcement agency. They have no power to investigate, indict or prosecute anyone for “crimes”. They aren’t interested in crimes. They’re interested in foreign enemies.
There are only two actions I can imagine the NSA taking as a result of information collection; passing to the FBI a summary report (as allowed by law) or passing of to SOCOM the location of a target to be eliminated.
We know they’ve done the former, because they have credited the program with the capture of the Brooklyn Bridge bomber. I have no doubt they’ve done the latter and possibly more than once.
Being a vet, I particularly chuckled at this story. A Reuters reporter asked a Special Forces sniper in Afghanistan what he felt when he popped a Taliban. The sniper answered, “Recoil.”
This
Completely misrepresents the findings of Youngstown as well as Justice Jackson’s opinion on the matter.
Why does the left always fail, when quoting Jackson’s tripartite formula, to quote the rest of his opinion?
Note especially the qualifier, “not because of rebellion”. Here Jackson acknowledges not only the supremacy of the powers of the President as CinC, but also that, in the case of rebellion, those powers can turn inward (as in Lincoln’s suspension of habeas corpus.)
When a law scholar has a real basis for a claim about the law, he says “According to the case of A versus B, on page N, the holding is X”. When a law scholar uses the word “obviously X”, then one can reasonably translate to mean: “I want to claim X but have no authority to do so.”
Lawrence Tribe knows this. So when I count so many “obviously” in his purported letter to Conyers, I know that Tribe is pulling this crap out of his ass and Tribe knows that I and every lawyer in the nation know that he is pulling this crap out of his ass.
Tribe just thinks that this crap fools the proles.
Dude, that was some lengthy analysis. But I read the motherfucker. And that’s all you need to hear, Negro.
BTW, have you seen the “E-Ring”? I watched for the first time tonight, and I’m thinkin, who put this right-wing shit on the teevee? The terrorists are Ayrabs, the military stops their bio terror attack in the nick of time, thanks to not waitin for a warrant, the head honcho has to resign cause the media have a hissy fit, our hero has to stop doin the bitch cause she gets the head honcho job. Whassup with that????
Man, I could use a Big Kahuna burger. Or some fine gourmet coffee. Cause the world is spinnin out of control
My apologies for the previous post. Johnnie Walker just had to get that off his chest.
Antimedia:
Respectfully, you seem a bit confused. You write:
First of all, the NSA notified Congress of the program just days after 9/11, according to Nancy Pelosi. Therefore, Congress had to know about warrantless surveillance before the AUMF, rendering your point moot.
This is just incorrect. The program began in early 2002. Bush and Gonzales have stated this publicly. Whatever Pelosi was concered about pre-AUMF, it wasn’t this program.
Finally, to assert that the Patriot Act alleviates the need to do what NSA is doing (what little we know) is to display a profound ignorance of the vast difference between military information collection and law enforcement investigations. Why on earth do you suppose President Bush has stated that FISA warrants are sought when it’s appropriate?
This comment betrays a complete lack of understanding of what FISA is. FISA has nothing to do with law enforcement. If it did, it would violate the 4th Amendment. The reason FISA surveillence can be done without complying with traditional 4th amendment warrant requirements is precisely because, as FISA itself states, the “primary purpose of the surveillance is to obtain foreign intelligence information” (note: the Patriot Act amended FISA to say “significant purpose”). If FISA was used for law enforcement purposes, it would be unconstitutional. Title III is the statute that governs surveillance procedures for law enforcement purposes, and it provides for much stricter procedures. FISA is all about national security-related snooping, not law enforcement. So the distinction you’re trying to make here is a nonsensical one.
Completely misrepresents the findings of Youngstown as well as Justice Jackson’s opinion on the matter.
I knew someone would say this. This talking point has been circulating widely among Bush defenders. Contrary to what John Hinderaker and others might tell you, however, Youngstown is very much a problem for the Bush administration. While Justice Jackson’s opinion is only a concurring opinion, it has subsequently been quoted by Supreme Court majorities and is therefore good law. Second, as I explained in a post at my own site, Jackson’s opinion has endured because it represents a principle that all of the Justices in Youngstown (even the dissenters) seemed to accept. It’s a sort of ‘common denominator’ among the opinions. I’ve excerpted key passages from all the opinions at my site. Many of justices used language much stronger than Jackson’s. Even the passage you cite points out the difference between actions directed “inward” and those directed “outward”.
The bottomline is that your position rests on the premise that Congress does not have the authority to regulate the surveillance of U.S. citizens within the U.S., that this is the exclusive domain of the president. I’m quite confident that NONE of the justices in Youngstown would have endorsed that idea. Moreover, it would mean that FISA, which has been on the books for 25 years without being seriously questioned, is fundamentally unconstitutional. If you want to make that argument, by all means go for it, but understand that it’s weak, very weak, so weak that even the Bush administration isn’t making it (they are instead relying on the AUMF).
Apologies? None needed KM, that was quite the succinct review of this “E-Ring” episode.
I’ve been watching it all along, pretty good show all around (don’t worry, they slip in their obligatory slams at Bush / Rumsfeld / HaliWalMart too), though this episode seemed pretty clean.
By the way, I love how commenters at this site are willing to dismiss Lawrence Tribe’s legal analysis summarily and with no analysis whatsoever. Nevermind that he’s one of the top constitutional law professors in the country. Nevermind that his letter is quite long, very substantive, and thoroughly convincing. No, he can be dismissed off-hand because he is “liberal.” How weak.
Maybe I’m jumping the gun. Maybe some brave soul will rise to the occasion and actually address his arguments substantively. I hope so.
I have. And wou’re welcome to backtrack to my 17 or so posts on the subject to find out how I’ve addressed each of the issues he’s raised, none of which are new.
But don’t start disparaging my commenters because you feel like rehashing things we’ve discussed at great length and in great detail on a number of occasions, with threads running into the hundreds of comments.
Alternately, you’re welcome to peddle your unconvincing, question-begging pap elsewhere. Personally, I’m becoming bored with it.
Fair enough. Truth be told, I also hate it when new readers jump in on chapter 72 of a 90 part series and expect everyone to rehash every argument they’ve ever made. My previous comment wasn’t directed at you personally, Jeff, but I see your point. To the extent anyone wants to directly take on Tribe’s letter, though, I’d be interested in reading it.
Cheers.
Thanks for understanding. And forgive me tone. I’ve had a series of trolls here recently, and my fuse is rather short.
If you’re interested, there has been some really good debate in the threads between attorneys, intel analysts, professors, and those who’ve worked inside some of the agencies in question.
My kernel position is that this is a separation of powers battle that will be fought in the court of public opinion, and that the Democrats and civil libertarian absolutists will lose.
I’m more or less a free speech absolutist, and a libertarian within the framework of a sovereign power (that is, I believe very strongly that the government should be providing for our protection and defense, but that if I want to smoke a cigarette or eat a twinkie, they should leave me alone, etc); so for me, this is one of those issues that really defines me politically.
I appreciate your comments; please don’t take offense if I neglect to answer. Chances are, I’ve probably answered the question elsewhere 10 times already, and I’m just frustrated with tryint to come up with fresh ways to phrase things.
Best —
Jeff
DosTranslation: [insert appeal to authority here]
Afterall, experts *never* make mistakes.
Keep up the good work, Sparky. And allow me to begin your response with your standard insult: “Respectfully, you seem a bit confused.”
Speaking of “unconvincing, question-begging pap”, I’d have to confess that I completely zone out on these constitutional arguments once they cross over one small line….
If you’re trying to PROSECUTE someone in a COURT OF LAW, you have to follow judicial rules and protections in various constitutional amendments and statutes. (A citizen says, “Allahu Akbar” and the Feds are out to get her)
If you’re trying to KILL someone or BLOW THEM UP, you are subject to the laws of war and have separate restrictions on acts and policies. (Someone says, “kill them all, kill the unbelievers” and their parish church explodes).
If you’re going to try to port information from one to the other, you have the “tainted fruit of the poisoned tree” argument to get past. (Someone raids my pot farm because I said “Allahu akbar”—they can kill me, but they can’t prosecute for possession.)
Accordingly, it seems obvious that the use of the information determines the controls—if you want to shell Grand Junction, CO, you need only have military SIGINT—but if you want to extradite someone from Auckland, NZ you’d have to have “uncontaminated” evidence.
Note also that there has been a longstanding argument in American jurisprudence as to whether “commonly-known information” may be used in a judicial setting. Witness the stir over jury experimentation at <a href=”http://sfgate.com/cgi-bin/article.cgi?file=/c/a/2005/03/15/BAG73BPBTE1.DTL” target=”_blank”> where jurors went beyond the pale:—An experiment conducted by jurors on Peterson’s boat. During deliberations, two jurors got into the boat and rocked it back and forth. One of the jurors tried to simulate throwing a body overboard. Prosecutors believe that Peterson transported his wife’s body to the bay in the back of his boat and then dumped it overboard. Geragos said the jurors’ test on the boat is forbidden by the law.
To summarize, then—there can be an argument as to whether readily observable facts are admissable as evidence in a criminal jury trial for a citizen of the US. On the other hand, buildings and installations can be shelled (with loss of life) during insurrection or warfare based on any reasonable evidence. Evidence gathered for such targeting purposes may not be shared with domestic prosecutors.
Given such restrictions, it would seem that the CINC would have an inherent right to gather such SIGINT as considered necessary so long as it was not given over to an unconstitutional use.
Given that “the Constitution is not a suicide pact”, I have yet to see any grounds where this might be subject to debate. One pot grower ensnared in this program might have grounds for a suit, but there’s no evidence that there has been any misuse or mistargeting of this program to date.
I just don’t get it. TW: get.
I tried to get an answer to this question at Just One Minute but I got lost in the middle of an argument among the regulars. The same will probably happen here, but here goes. Cthulhu above gave a partial answer but perhaps someone else could elighten me.
Excuse my ignorance,but as a Brit my knowledge of the US justice system comes from watching Laura Norder and similar cop shows.
Let’s try another hypothetical
A cop is walking down the street and sees someone who looks a bit suspicious, follows him to his pad, busts in and finds illegal guns, bombs, stolen propery etc. and arrests the guy. The DA won’t even take the case to a judge because the cop didn’t have a warrant, wasn’t in hot pursuit and didn’t have probable cause.
But the cop is never arrested , charged with some felony and locked up. He just gets bawled out for not finding or inventing some justification for the bust.
So why are so many people talking about what the NSA and Bush have done as ‘illegal’. Surely the only problem is that any evidence found may not be admissable,
Indeed I read in a column sowewhere that the FISA judges are not concerned with what the NSA is doing per se, but whether evidence from unwarranted surveillance can be used to grant warrants for surveillance on US persons without being tainted.
The NSA is sniffing out leads, looking for patterns and just generally being a cop, and if it gets a lead it passes it on to the FBI to followup and go through the legal hoops.
So why all this talk of crimes and impeachment and the like.
Ok, I can see why NSA surveillance might be different, like CCTV and loyalty cards, but I still can’t see the indictable crime.
Incidentally, I think the reason for Atrios et al taking the ‘Leaks didn’t cause any national security problems ‘ line is that the pressure on the leakers is starting to grow.
Mind you, I think the extrordinary rendition of the two JRs is a tad excessive, (or is there some other reason we haven’t heard from Rocky and the Judge recently).
The lunatics running the Democratic party right now started screaming impeachment as soon as they got their breath back from sobbing over the election. It is a crime because they have to have a crime to impeach Bush, and they have to impeach Bush because they can’t beat him in an election.
They’re pretty sure he won’t win in 2008.
He won’t need to, the Monarchy should be firmly established by then. I guess I did forget to mention that.
It’s only because of the Daou Report that I happened to stumble up this post and all I can say is, wow. You all are a bunch of cowards! I tell you, these are hard times for us brave libertarians. I’ll keep my fourth amendment rights and take my chances with the terrorists. I thank God Almighty that people like you weren’t around during the revolution. Otherwise, I’d be saying, “Top of the mornin’ to ya govner and God save the Queen/King.” Why? Because you people would probably think, “only King George can protect us from them savage injuns terrorizing our towns and scalping the menfolkâ€Â.
Pathetic. Adults willing to give up all that has been fought for because they think a fanatical Muslim might hurt them.
Anonymous Liberal,
The bottom line on Tribe’s “letter” is that it doesn’t take the form of constitutional legal analysis, and in fact his attempt to distinguish Hamdi on the question of the scope of the AUMF is handwaving.
Blackshire,
Learn some history.
Libertarians didn’t win the Revolutionary War. They were hiding in the woods waiting for the Federalists to win battles so they could show their faces.
Jeff writes:
Look, Jeff, and Charlie (CO) —
This is a deliberate misstatement of the issue. No one has ever argued that the President cannot use signals intel to smoke out AQ inside the US. All we’ve said is that when that signals intel targets American citizens in the US, then the President must comply with a statute that regulates exactly that scenario, and which was and is undoubtedly within Congress’s power to enact.
Under your argument, if the President got conclusive intelligence that a particular safe house in, say, Detroit contained an AQ cell composed of US citizens, he could simply order some Army helicopters to rain hellfire missiles down upon it. I mean, if the AUMF authorized the President to make war on AQ, even US citizens who are AQ agents inside the US, then there’s nothing stopping him from killing them outright, is there?
But this seems to be what Charlie is saying when he writes:
There is no question that the President can do this in Afghanistan and Iraq, and little question that he could do it even in Iran or Somalia, under the AUMF and other constructs of Presidential CiC/foreign policy powers. But I doubt you’re arguing that he has the power to do this in Detroit. And when we argue that FISA need to be followed, we’re only talking about surveillance that targets American citizens inside the US. That’s a whole different ballgame.
By failing to make that distinction, you’re simply knocking down straw men.
— your favorite straight-faced liberal lawyer.
Laurence Tribe, The Fab Five, Robert Bork, Peter Tork, and Suck the Wonder Bat all have…wait for it…OPINIONS on the legality of the NSA program.
Note to Anonymous Liberal: When “legal scholars” construct an opinion to advance a specific viewpoint, it’s still just an opinion.
Call me back when the Supreme Court rules. Then you’ll have something to which the bullshit will adhere.
But the cop is never arrested , charged with some felony and locked up. He just gets bawled out for not finding or inventing some justification for the bust.
So why are so many people talking about what the NSA and Bush have done as ‘illegal’. Surely the only problem is that any evidence found may not be admissable.
The problem here is with the analogy. Yes, a cop would not be prosecuted for such an “offense.” He violated the Constitution, not a criminal statute. Not all illegality is punishable by prosecution. I’m guessing the cop would be reprimanded, however. And if he did this often enough, he’d be fired. He’d also open himself and the government up to civil suit for violating people’s constitutional rights.
But Bush is not a cop. He’s more analogous to the police chief. And if the police chief ordered his officers to disregard the rules of search and seizure, he’d probably get canned pretty quickly.
But comparing any of this to law enforcement activities is somewhat dubious. FISA is not a law enforcement statute. Title III is the statute that governs wiretapping for law enforcement purposes (i.e. investigating the mob, drug dealers, etc.) and it requires a much more robust showing of probable cause. In order to use FISA, your primary/significant purpose has to be protecting national security. It’s that distinction that allows FISA to constitutionally require a lower standard for issuing warrants.
Finally, no one is accusing the president of commiting a “crime” in the standard sense of the word. He’s being accused of overstepping his authority as president by ordering a federal agency to disregard Congressional mandates. So in a sense, he is being accused of acting “illegally” or “extra-legally.” The only real punishment for such an offense (if it is an offense) is impeachment or censure.
Fine.
Now here’s what you have to do. Find or found a political party that agrees with your position on this and get your representatives elected to congress, the senate and the presidency then enact the laws you think you need to bring this about.
TW nation: To change a democratic one you need politics not snark
Little did I know that “FISA” would be the acronym that caused me to itch uncontrollably. I always thought it would be “UN.”
Add MF to the AL section of my previous post.
P.S.: All the lawyers that work for DOJ, NSA, et al on this issue are equally passionate that they are right. I know! Let’s tie you together at the wrist, give you knives, and sell tickets.
All the lawyers that work for DOJ, NSA, et al on this issue are equally passionate that they are right. I know!
How do you know this? Do you know them all personally? Risen’s original story had upwards of a dozen sources, all of whom (he says) came forward because they had issues with the program. I’m guessing some of those sources were DOJ or NSA lawyers. Plus, we know that one of the top DOJ lawyers, James Comey (who, by the way, is no liberal) had some serious issues with this program.
Blackshire,
Have you ever watched “Diamonds Are Forever”? Blofeld is surprised to see Bond because, “Your pitiful little island hasn’t even been threatened.”
Get your ego under control and slowly back away from the gigantic C-O-N-S-P-I-R-A-C-Y against you.
He’s neither. He’s the President.
Once you grasp that fact, and go back to the definition of the President’s powers, then you’ll be enlightened.
MF:
One end of the conversation is in the US. The other end isn’t. The NSA is listening to the end that isn’t.
And, actually, I’d say the President doesn’t just have the right to use the military against terrorists who happen to be located in Detroit, but the duty. Their presence in the US makes them a greater danger than if they were in Pakistan. As a historical example, FDR didn’t send the FBI to arrest the Japanese on Atta and Kiska; he sent the US military to kill them. They were on US soil, but that didn’t entitle them to Constitutional rights.
Argh. PIMF:
One end of the conversation is in the US. The other end isn’t. The NSA is listening to the end that isn’t, if that makes you feel any better.
AL,
Yeah, I know a fair amount of USG lawyers in multiple agencies. They construct opinions for their “clients” (read: employer) in the same way that any attorney worth their salt does. That some may have “concerns” does not automatically validate their views.
Or are you unfamiliar with how that whole process works?
This entire debate is tiresome. You have every right to your opinion, but please don’t try to sell your legal views as definitive. They are not.
Kevin B, B Moe and Robert Crawford:
There is a difference between the cop, whose violation is of a constitutional prohibition, and the President, who (and in deference to those who think disagree) arguably has transgressed a specific statute.
The constitutional remedy “against” the cop is to prohibit the use of the illegally obtained information against the individual in any criminal prosecution.
The President may act unconstitutionally and the remedy is for a court to enjoin such action.
But the remedy for a Presidential violation of law . . .
Just a philosophical/ethical question:
There is much talk on this thread about separating the policy and legal issues. Then the legal issues are blithely dismissed either by loose common sense arguments (“Congress must have meant” or “How can the Commander-in-Chief make an illegal military order in war time”) without any real statutory analysis or by reason of the classified nature of all of the facts underlying any discussion of legality. It seems the policy issue is simple: Better to nuke them all, than to leave any suspect standing.
My problem with this is that like many of the arguments surrounding this impossible to end war against terrorism the policy is driving the legal debate and thus we have the ultimate ends justifying any means.
The “morality” of the policy of mutually assured destruction during the Cold War lay precisely in the unthinkableness (and blatant immorality) of a first strike. The “morality” of our current policies with respect to the WOT is bankrupt–no action is out of bounds.
Tell me I’m wrong, but underlying this mini-debate is the larger question of where any line should be drawn in this “struggle”. Personally I do not see any discernible line and even suggesting that there should be a line relegates me and those asking such questions to the sissyfied realm of treason.
Hiding behind the patina of all of this pseudo-lawyering or logic will not obscure these most basic questions:
What is a war against a word? What is a war against a tactic?
If such a struggle can be called a war, what are the parameters of morality? Can a moral state act as immorally as the “enemy” which by definition is immoral (i.e. terrorism is by definition immoral)?
Okay this has gone a little off topic but too often these discussion devolve into mere “rationalizations” to justify one’s own team. The political discourse in this country has become about being on the winning side and thus there can be no “cooperation” or “compromise” or dare I say “common good”.
So either the President acted legally or not.
However, if you explained to the ordinary American that any time they placed a call out of the country and used a word that had any connotation remotely related to the middle east, or islam or terrorism or war or violence or who knows what that call could be recorded by the government and possibly used to restrict such person liberty, there might be a different attitude.
And after all of this to jump directly into the fray:
Discussing the fine points of statutory construction is fine. But I have not seen anyone point to an express authorization for the president to do this sort of thing and yet there does appear to be an awful lot of legal ink regulating this kind of action.
One final question: If the targets were individuals with “known ties to al Qaeda” then getting a warrant would have been a slam dunk and could have been done after the fact.
Robert:
I don’t care where one end of the conversation is. If the surveillance targets a US citizen in the US, FISA applies. Nothing in FISA suggests that when a US citizen is targeted, but the conversation is international, FISA somehow doesn’t apply. If you could find language to that effect, I’d love to see it.
Well, it’s nice that you’d say that, but it’s not the law. Again, please read my post carefully. We’re talking about US citizens inside the US. Under no conception of war powers or the Bill of Rights can the President order the killing of American citizens in the US on the ground that he has determined they are agents of AQ. And I doubt anyone here would seriously argue as much.
Robin Roberts,
The federalists were in the towns in their big houses surronded by body guards, servants, and slaves. You are correct, the Libertarian-minded colonists and militias were in the woods, I.g. Francis Marion, learning from the natives how to fight a guirilla war. I think today they would be called insurgents. Regardless, they weren’t cowards and did not submit themselves to group think!
I would. Dp you honestly think that if a crew of US persons hijacked another commercial airliner full of US persons and were going to fly it into the Empire State Bldg, the Sears Tower, the WH or the Pentagon, that that plane, full of US persons would not be obliterated in the sky?
Not only would the AQ US persons be killed but all of the “innocent” US persons as “collateral damage”.
Or take the above sceanario to an airport, train station, subway stop, shopping mall or crowded urban area and strap homicide vests on the “US persons”.
No warrant. Summary execution before they can detonate. After all WE ARE AT WAR!!!
Okay, let’s take your argument to the extreme then. Are you saying if a hostile foreign power infiltrates the US and recruits an army of our own citizens for the purpose of insurrection, our only defense is to use the police to arrest and prosecute the rebels?
And MF: Have you come up with one example yet where a citizen was the target of a wiretap without a warrant? Or are you still rightously smiting your own imagination?
And, actually, I’d say the President doesn’t just have the right to use the military against terrorists who happen to be located in Detroit, but the duty. Their presence in the US makes them a greater danger than if they were in Pakistan. As a historical example, FDR didn’t send the FBI to arrest the Japanese on Atta and Kiska; he sent the US military to kill them. They were on US soil, but that didn’t entitle them to Constitutional rights.
MF already addressed this point well, but it’s worth repeating. The examples provided here do not involve U.S. citizens. The reason Bush’s spying is even an issue is because it involves U.S. citizens, making FISA applicable.
Take for example, Jose Padilla, a U.S. citizen arrested in the U.S. Even the Bush administration doesn’t claim that they have the power to summarily execute him. And their claim that they can hold him without charges is itself weak, which is why they eventually backed down and are trying to moot the case before it can be decided against them.
There’s no getting around some basic facts:
1) FISA does not permit warrantless wiretapping of U.S. citizens within the U.S.
2) The Bush administration has been conducting warrantless wiretapping of U.S. citizens within the U.S.
Those two facts are not even in dispute. So in order to justify Bush’s actions you have to argue one of two things:
1) The AUMF superceded FISA or somehow authorized the president to disregard FISA’s prohibitions
or
2) Congess does not have the authority to regulate the surveillance of U.S. citizens within the U.S. for national security purposes, that this is the exclusive power of the president. In other words, FISA is fundamentally unconstitutional.
That’s it. There are no other arguments. And notably, even the Bush administration isn’t making argument #2.
So really, the whole crux of the debate revolves around argument #1, which is a relatively discreet question of statutory interpretion that doesn’t even involve any significant separation of powers analysis. Moreover, there are no facts that we don’t already know that are relevant to deciding this discreet legal question. The question is ripe for review.
I’d encourage those of you who haven’t read it, to focus on the part of Larry Tribe’s letter that addresses the AUMF issue. It’s very thorough and quite persuasive.
If FISA doesn’t say it doesn’t apply, does it say it does? And, again, other administrations have maintained that FISA doesn’t apply to national security matters, even when both ends and both parties are within the US legally.
I was unaware the AUMF limited itself to overseas. I thought the president was authorized to go against AQ whereever it was.
You’re wrong.
Now, I’ll admit that using the military against enemies who have placed themselves within the US is not the ideal, and if possible law enforcement forces should be used, but I’m not going to confuse dealing with hostile forces with enforcing the law.
Well I believe the AUMF was against Al Quaeda and it’s affiliates.
When the questions of the morality come up, (rendition, aggressive interogation, surveillance), we argue them out amongst ourselves. Even before these topics become public, those involved in the decision making or operation thrash them out from the moral as well as practical and political viewpoints. Do our enemies ponder the moral implications of suicide bombing or crashing planeloads of innocents into office buildings?
Well lines in war tend to move. Currently some points on the line are drawn at rendition, aggressive interrogation, surveillance and the occasional hellfire missile, as well as the ongoing skirmishes with AQ in Iraq.
If a nuclear device goes off in a Western city, the line may well move.
For example, I would not want to be in Algiers if a nuke went off in Paris. France doesn’t have much in the way of force projection but it does have a force de frappe. (AQ can now plan this from the US without fear of NSA surveillance.) Of course if the bomb goes off in Moscow, anything could happen.
I appreciate that America is the main player on our side of this war but don’t forget the rest of us targets. AQ hasn’t.
(When I was a lurker I used to scoff at the perceived prescience of the Turing machine but here it is: moral)
Dp you honestly think that if a crew of US persons hijacked another commercial airliner full of US persons and were going to fly it into the Empire State Bldg, the Sears Tower, the WH or the Pentagon, that that plane, full of US persons would not be obliterated in the sky?
This is lazy reasoning. Police, for example, have the power to use lethal force under certain circumstances (to protect their own or someone else’s life, for example). That doesn’t imply that they also have the “lesser included power” to, as a matter of policy, search people without warrants. The former power does not imply the latter.
I have no doubt that in some situations military force, even lethal military force, can be used against even U.S. citizens within the U.S., but that doesn’t, by any means, suggest that the president has the authority to issue warrantless wiretaps of U.S. citizens in contravention of a Congressional statute. Moreover, that statute provides for exigent circumstances by allowing a 72 hour retroactive warrant and a 15 day allowance for warrantless taps in the case of war (to give the president enought time to go to Congress and get the law changed). So this entire line of reasoning is ridiculous.
This was what I was addressing directly, as posted by MF.
[emphasis mine]
I drew no correlation between the NSA program and the killing of these “hypothetical” US persons. Not lazy – just direct.
other administrations have maintained that FISA doesn’t apply to national security matters, even when both ends and both parties are within the US legally.
Rubbish. FISA only applies to national security matters. That its reason for being. It is NOT a law enforcement statute. There are other statutes which govern wiretapping for law enforcement purposes. In order to secure a FISA warrant, you must demonstrate that a “significant purpose of the surveillance is to obtain foreign intelligence information.” The language used to say “primary purpose” but it was amended by the Patriot Act to say “significant purpose.”
Under no conception of war powers or the Bill of Rights can the President order the killing of American citizens in the US on the ground that he has determined they are agents of AQ. And I doubt anyone here would seriously argue as much.
This is the statement that everyone seems to be taking issue with, but if you read what MF actually writes, it’s clearly correct.
He’s not saying (at least I don’t think he’s saying) that lethal force can never be used against Al Queda agents in the U.S. who happen to be U.S. citizens. He’s just saying that lethal force cannot be used MERELY because the president has determined that they are agents of Al Queda. That would certainly be grounds to detain or arrest them, but not to blow them up on the spot. He could only do that if they were actively threating others (e.g. by hijacking a plane). If they’re just in their apartments eating doritos, however, the president can’t just firebomb them. He has to arrest them and at least submit them to a military tribunal (Hamdi requires at least that much).
AL has defended me admirably against the “lazy” hypos of rls and B Moe, so I don’t need to add much.
When AL wrote:
He was precisely right. I had written “on the ground [singular]”—meaning, “merely because” or “only because.” Of course, if there is an imminent threat to national security, or an imminent threat to life and limb (in a law enforcement context), the naturally deadly force can be used.
I would never dispute that the President has authority to order a plane hijacked by and filled with US citizens shot down if it poses a threat to national security. And, in the “suicide bomber/shopping mall” hypo, as AL rightly pointed out, any law enforcement who is on the scene—indeed, any private citizen!—has the authority and would be correct to shoot the potential bomber before he detonated. Those are simple and broadly accepted law enforcement techniques.
And, as AL pointed out, the answer to this question from B Moe—”And MF: Have you come up with one example yet where a citizen was the target of a wiretap without a warrant?”—is that the Administration has admitted, numerous times, that this is exactly what it is doing, and if it weren’t doing this, then there would be no controversy.
Really glad to see a substantive discussion of these issues, as opposed to the unfortunately typical “You dang liberal!” “You dagnabbed conservative!” sorta noise.
And, again, when other administrations did the same—or more—there was no controversy.
And, again, when other administrations did the sameâ€â€or moreâ€â€there was no controversy.
This is just flat-out inaccurate. Since the passage of FISA in 1978, NO other administration has engaged in spying activity which is inconsistent with FISA (i.e. warrantless wiretapping of U.S. citizens within the U.S.). That’s just a false talking point.
Robert:
No administration has ever claimed to hav done this. If you’re relying on those Drudge-trumpeted Executive Orders under Carter and Clinton, you’ve been led astray, because none of those orders purported to authorize any actions not in compliance with FISA.
And if you’re talking about the physical search of the home of Aldridge Ames (US citizen/foreign agent) conducted by Reno’s DOJ, you’re also misunderstanding the issue. There, Ames’ house was physically searched without a warrant for “foreign intelligence” purposes—i.e., not to find evidence admissible in court against Ames—which Clinton claimed he had inherent authority to order. The controversy that ensued led Congress to hold hearings and amend FISA to include regulation of physical searches for foreign intelligence purposes. Although Congress may have agreed with Deputy AG Gorelick that, in the absence of a statute, the President has inherent authority to conduct an Ames-type foreign intelligence physical search, it most certainly did not believe that he had exclusive authority over such searches. Clearly, by changing the law, Congress asserted its primacy in deciding when and how such searches (i.e., physical searches of home of US citizen in US) could be conducted.
Other than those, I don’t know of any colorable claim of a situation when a post-FISA president asserted that he could conduct foreign intelligence surveillance targeting US persons inside the US without a FISA court order. It’s never happened, and that’s why this is controversial.
And you have added so much since you showed up here. Such as dismissing an argument you have no response to as lazy.
Where? Show me a quote that says exactly that, not one that you interpret as implying that.
There is nothing unlawful about unwarranted wire taps on Americans? His scope of spying was narrow? We don’t even know the facts yet, and probably wont’ for a long time.
The ‘told you so’s will be coming, but probably too late for any constructive purpose beyond the Left, once again, being be able to say that they were correct in the first place.
There is little solice in knowing the bush & co are liars. Liars that kill many thousands and do it in the name of their ‘god’. Everyone knows they are liars. It’s only a question of whether you support their lies… or not. Only a moron would think that Saddam had WMD’s and the war had nothing to do with oil fields.
The Republicowards prove again how naive they are with their faith-based politics. Wanna buy some beach-front property? I can give you some great deals.
At his press conference when the story first broke, Alberto Gonzales said the following:
How is that not clear to you? The president himself has admitted on several occasions now that the interceptions at issue involve conversations between U.S. citizens in the U.S. and people overseas. Gonzales admits that this type of surveillance requires a court order under FISA.
In other words, you’re arguing a point that even the administration isn’t arguing. They admit they are not complying with FISA, they’re just claiming they don’t have to.
AAAAAGGGAGAGAGGAHHHAHHAHHH!!!!!!!!!!!
Sorry, couldn’t hold it any more.
I really, really, really, really think you’re all really, really, really missing the point on this. And that particular this happens to be the technology.
“Wiretapping” and what’s going on here, I suspect, are radically different things.
For starters the NSA (which is the Signals Intelligence branch of the DoD) has been, by proxy the national agency responsible for monitoring communications for intelligence purposes.
And as it happens, they’re rather good at what they do, especially with respect to technology.
Really good.
Now imagine you could listen in on each and every phone call and read each and every e-mail communication. Pretty neat, huh?
Except for the fact that you need nearly 6 billion people to review, analyze, and utilize the communications created by 6 billion people. (It’s not quite a tautology, but does suggest something interesting about the nature of ‘intelligence’, but I digress).
So, we then end up with a problem – if it’s super neat to be able to peek in to anything, how do you decide what it is, exactly, that you’re going to be looking at.
Without getting in to a lot of specifics, we can that much of the process has been automated. Key word scans, call history, things like that.
Well, here’s the deal – is the simple automatic processing of the data does count as an interception (from a certain point of view). So basically, the Great Big Computer Program looks at all of this message traffic, and decides that messages #1, #435, #9,092,013 of the first 10 million are worth flagging for human notice. But how does it know that the other 9,999,997 messages aren’t worth tagging? Because it listens in. I.e. intercepts it.
Second REALLY BIG POINT is message traffic analysis. Often times, even when you might not be able to get the sense of the specific content of a message, you might note peaks in traffic (i.e. the famed “chatter”). Now if I note that there are a larger number of phone calls, and yours happens to be one of them, then I’m ‘intercepting’ your call and using to compile intelligence – even if I have no idea of the actual content of the conversation.
Ladies, gentlemen, boys and girls of all ages, this isn’t ANYTHING new! We have been creeping this way steadily since Alan Turing was blowing guys in bus stations in between bouts of inventing the modern computer. Now with the massive profusion of data transfer associated with the internet, cell phones, cheap satellite commnuications and the whole wad, there’s not only a lot more information to pick through, and the increasing computational tools allow this stuff to be automated – lest we otherwise drown.
So, no, this isn’t about guys sitting in the back of vans listening to your cordless phone – that kind of handcrafted bs has gone the way of the dinosaur. It bears as much resembelance to modern signals intelligence as the Battle of the Somme was like the Iraq War.
Apologies for the rant, but hey,
BRD
TW: My, I seem to be in rare form today.
By the way, here’s a link to that press conference if you don’t want to take my word for it.
B Moe:
AL noted AG Gonzales’ statement above, at 1/11 7:34 pm: “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.” You cannot get any clearer than that.
And if you’re upset I didn’t respond to this:
…it’s only because you haven’t read the actual Constitution recently, which provides for such instances in Article I, Section 9: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” So Congress could pass a law suspended habeus corpus—and then the President could throw any enemy suspects in jail he wanted, or, theoretically, blow them up, if there were some sort of armed warfare occurring; it could also pass other laws governing the President’s authority to deal with the rebels; and, of course, the President would have some semblance of Executive/CiC powers to use his discretion in fighting such rebels to the extent that the security emergency required it and Congress had not acted (see Lincoln, Presidency of).
But this argument gets us way off track, because we know there is no Al Qaeda Army of Northern Virginia marching towards Washington right now. And we do know that the President has asserted the authority not to follow a duly enacted law protecting the rights of 280 million Americans in their own homes and in their own country—the violation of which is criminal—because we have dozens/hundreds/thousands of potential enemy agents on our hands. So let’s talk about that instead.
BRD:
Your post about the technology, while interesting, is wholly beside the point. First, monitoring chatter and other information that does not involve “content” is not even covered by FISA, so there’s no issue or controversy with respect to that.
But the administration has admitted (see my previous comment) that the type of surveillance they are doing in this program is the sort that requires a FISA court order (at least prior to the AUMF). I’ve heard a lot of people argue that this new technology being employed is somehow outside of the purview of FISA, and therefore the program is legal. But if that’s the case, why on earth would the Bush administration ADMIT that the surveillance they’re doing falls within FISA? It just doesn’t make any sense. Whatever it is that they’re doing, it clearly implicates FISA, which is the only fact that is at all relevant from a legal standpoint.
Lars —
Fuck off. You’re a partisan moron, and because I’ve been doing considerable work on this topic, I have no time for people like you dropping your puerile Kossacks into my comments section.
To answer AL and MF —
I have addressed what AG Gonzales said; the administration hase “admitted” the “right” to do it—NOT THAT THEY HAVE DONE IT (Hayden and the Prez, conversely, have noted that domestic scenarios have included warrants); AGG Gonzales is helping to stoke the conversation and drawing out the lawyers for a separations of powers battle.
The political benefit is multifold: liberal/civil libertarian absolutists look soft on terror and appear 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 legal definitional loopholes than they do with fulfilling the first mandate of the executive during war—under AUMF, using all means at our disposal within the law. Signals Intel gathering is a military technique; it has been upheld (or, at least, acknowledged as understood) by every court.
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 law enforcement—not foreign intel gathering.
Similarly, so long as one side of the intercept is in a foreign country, what is happening is foreign electronic surveillance; the NSA can make the intercept and provide to the FBI a summary of the info.
From there, if necessary, the FBI can develop probable cause and apply for a FISA warrant.
The Dems have no effectively argued themselved legally to the position that protecting US citizens in the US was never authorized by Tom Daschle, and the President—despite counsel of the DoJ, DoD, and NSA legal apparati—is criminally culpable for protecting us against embedded enemies hoping to attack from within, while the leaker of the highly classified program is an heroic whistleblower for destroying what is most likely an authomated keyword database.
Note, too, that much of this is speculative, and that the technology being exploited is likely problematizes all such questions. Ditto the point of acquisition, and the nature of the “target” (FISA warrants are given for numbers; disposible phones, therefore, necessitate the need for a new warratnt each time; I very much doubt that our lawmakers intended for such a dodge to hamper law enforcement.)
Bottom line: if we are at war, and AUMF says we are, signals intel is perfectly legal and expected; hysterical suggestions of its abuses are unproven (and, in fact, assurance have been given that FISA is being used in legal situation wherein it is required).
The admninistration is not interested in giving away any more of the program; and so they have offered a defense that applies to all possible scenarios—constitutional, statutory, and regarding US Persons and the way “they” are targeted, including when and how (Pen registries?).
The lawyers pontificating here that the admnistration has “clearly” broken the law seen to have forgotten how clever legal dodges can make perfectly legal in fact what seems, with slightly different wording, illegal. That is, lawyers are able to make fine legal distinctions in order to protect themselves about legal challenges and appeals.
— Unless, of course, they are DoJ or NSA lawyers, who are evidently incapapable of acting like the kinds of lawyers favored by MF and AL.
JG and BRD already beat me to it, but the key words are:
You have come up with nothing in regards to that, paranoid imaginings and speculation don’t cut it.
Get back to work, “Lars”.
AL,
Thanks for the response to my rant. I guess there are two minor elements that, aside from whether or not they answer your immediate point, I would like to mention for the sake of completeness.
First is that this technology is not “new” in the sense I think you’re implying. It’s been around for years and had been refined constantly, but is not substantially new or unique in either capabilities or its application to the post-AUMF era.
The second point, is that the technology is something like browsing through books at a store. First one reads at the spine – if it sounds interesting, then pull it from the shelf and read the dustjacket. Still interested? Read a few pages. Still interested? Purchase it and read it at home.
The critical word in the above paragraph is read.
So the question becomes at what point an individual has “read” the book. Now, if you have a system like that employed by Amazon used to suggest books that may be of interest, based on current and previous purchases, then Amazon is performing a function not unlike that performed in the store. However, unlike the in-person browsing, in the Amazon scenario no single individual has “read” the book, yet the end result is indistinguishable, from an outside perspective, in generating a recommendation.
So, did some thing “read” the book and flag it for your notice? Yes. So the book has been read? Did you read the book? Well, no, you’ve not taken it home and read it cover to cover. However, you did “read” the title and recommendation.
So I don’t want to give anyone the impression that this somehow trumps legality, so much as to suggest that I think the conceptual models applied in this legal debate just flat out don’t work.
(BTW, for those putting up with my writing, in the above analogy “reading” is gather intel data, while “purchasing” is getting a warrant where needed.)
The other point that you make, AL, is well-taken regarding the coverage of traffic monitoring. I don’t know enough to agree or disagree with your point, but I can state with great certainty that a solid answer would involve a fair chunk of information theory, philosophy, law, to name a few. I would also submit that, absent a specific exemption (which may be in there), it’s not a straightforward problem.
Best regards,
BRD
B Moe,
I am suggesting that virtually all Americans (or at least those who have used the internet, traveled overseas, or have had an overseas telephone conversation) have been subject to intelligence gathering (at some level) without a warrant.
Regards,
BRD
Understood, but am I correct in thinking you can be the subject of intelligence gathering and still not be the target of a wiretap?
Jeff, respectfully, a couple of the key points you make in your previous comment are just flat-out factually incorrect.
For example, you write:
You’ve got this completely backwards. FISA has nothing whatsoever to do with law enforcement surveillance. We have Title III which governs that. 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 NOT law enforcement. That’s FISA’s entire reason for being. Otherwise it would be unnecessary, superfluous, and would violate the 4th amendment.
I’m sorry, Jeff, but I just don’t see how you can read Gonzales’ words to mean what you’re saying. There is no indication that he is speaking hypothetically. He said that FISA requires a court order for the type of surveillance that the president has authorized, past tense. He said this in the context of discussing a program that began in 2002, was revealed by the NY Times and confirmed by the president. The president himself has described practices which he claims are ongoing that clearly implicate FISA.
I suppose that both Bush and Gonzales could be lying to us in some Machievellian effort to draw the ire of his critics, but that seems a little nuts. Why advertise that you are not complying with a statute if, in fact, you are not? Plus, it’s not just crazy lefties who are expressing concern. 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. 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.
BMoe,
Not necessarily. In the case of traffic analysis, yes, but the case here is a bit fuzzier.
Here’s the question: let’s assume a wiretap involves listening in on a conversation with the intent of gaining information. If a computer is listening to determine if a given conversation merits review by a person to see if the lead is worth pursuing, then has the computer “wiretapped” the conversation? Or is the computer merely notifying the person that they may want to “wiretap” the conversation?
Regards,
BRD
BRD:
The process your are describing sounds interesting and useful. I am certainly not against using such technology to fight terror (assuming I understand it correctly). But I don’t like to see the president operating extra-legally and claiming he’s justified in doing so. If this sort of technology is useful and it is incompatible with FISA, then president should see to it that Congress amends FISA, like they did with the Patriot Act.
As far as how new or old this technology is, I can’t even speculate. But I do think it’s pretty clear that the Bush administration decided to use some technology or process in a way that it hadn’t been used before, a way that violated FISA. That’s what necessitated his Executive Order on this issue. If the Bush administration wasn’t using any new technology or doing anything any differently than their predecessors, there would have been no need for that Executive Order.
They might be blinking weirdly into the camera because they said no such thing, but I dunno, it is your fantasy after all.
AL,
I tend to think that Bush might have gone for a CYA on this, since it does appear to be out there on the legal frontier. I guess the point that’s been driving me to distraction, is that I’m not actually sure there is a way to achieve the desired results (nabbing terrorists in an effective and timely manner) that doesn’t get in to grey legal areas.
I think when folks (and I think we all agree) get very much in to the heavy duty surveillance, that FISA is necessary.
The problem is more one of the point at which the question becomes relevant. Or, to go back to the strained analogy, the only way I can find out if I want to read a book is by, in fact, reading some portion of that book.
The other thing that I guess might be relevant, in a more general sense, is the administration has been careful not to arbitarily limit the power of the executive. They may have simply included more expansive language than needed to avoid hemming themselves into a game of gotcha.
Or, on the other hand, I could be full of it.
Cheers,
BRD
Shorter (errr, equally long but snarkily paraphrased) Jeff Goldstein:
“When AG Gonzales says, “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,” he means the exact opposite.
“First, the “surveillance” the “President announced on Saturday” is not what they’re actually doing, it’s what they simply have the right to do. So they announced it simply to tell everyone that if they wanted to do it, they legally could. But when they “announced” and “discussed” surveillance, it was surveillance they weren’t actually doing. The purpose was more to, you know, get a conversation going to see what lawyers across the country would side with wimpy, rule-of-law obsessed Democrats and which would side with a robust, ballsy Executive not hampered by legalisms whose sole goal is to protect us from terror.
“Second, when Gonzales said that the type of surveillance he described required a court order under FISA, he meant that the type of surveillance didn’t require a court order under FISA because, let’s face it, disposable cell phones render warrants obsolete, and Congress couldn’t have possibly meant what it actually wrote when it enacted FISA in 1978 and amended it since. Plus, every law that is old or antiquated and doesn’t work correctly is automatically null and void if the President wants it to be in a time of endless war.
“Third, even though Youngstown is an incredibly bad case for the President’s legal position, the fact that antimedia keeps saying it isn’t means that it must not be. Plus, since some things Griffin Bell said in the ‘70s, when taken out of context, seem to support my position, the fact that FISA itself says it applies when a “significant purpose of the surveillance is to obtain foreign intelligence information,” as AL has pointed out at least twice in this thread, means nothing. Everyone knows it’s truly intended as a check on law enforcement because, well, it just is, man.
“Bottom line, we’re at war, so even though FISA expressly regulates domestic electronic surveillance of US persons, and even has an express provision for times of war, it is irrelevant because I don’t want Bush to face any political heat for protecting me, even if he is asserting Executive powers far beyond those which the Constitution provides. And even though the President could easily abuse this wide-ranging domestic spy program with no basis in law, a program for which oversight is conducted entirely within the Executive branch by people whose jobs depend on the pleasure of the President, I will not be convinced that this extra-legal program is bad until someone provides me with documentary proof that Bush has abused it, even though that would never happen because everything’s kept secret, and I would pillory anyone who leaked anything more about it as a treasonous bum-licker. Plus, despite that Gonzales has undeniably said they aren’t, they are using FISA procedures when it is legally required.
“Oh, and lawyers are wicked smart, and they would never write memoranda that put forth highly dodgy legal analysis because that’s what their client wants to hear; and because they can parse words so well, it makes perfect sense (as I noted in the first paragraph) that when Al Gonzales says one thing, he truly means the exact opposite. Because he’s a lawyer who’s capable of making fine legal distinctions.”
Perhaps that’s true with respect to the 4th Amendmentment. Courts have yet to grapple with the really difficult issues in this area.
But that is certainly not true with respect to statutory law. There is absolutely no reason that any program must operate in a gray area from a statutory standpoint. Congress, if it deems it appropriate, can pass a law which sets up a framework for the use of any kind of technology or any surveillance techinique.
AL,
I think even on a statutory level, it isn’t quite as clear cut. For example, the recent Violence Against Women Act contains provisions that may (or may not) make irritating someone online illegal.
Law, has as an underpinning, certain elements of logic and philosophy that inform the decision being made. The core question that this seems to drive to is if a non-sentient machine is listening to aconversation, is the conversation being eavesdropped upon. This in turn has some pretty significant implications for intellectual property, search engines, the internet and whole host of other things.
I would very much like to see a much clearer and crisper statutory definition put in place, but that would be difficult at the best of times, but given the current fracas, quite difficult to craft good legislation.
On the other hand, at least in raising the profile of the issue so throughly, I’ll bet that the NSA is gearing up it’s Legislative Affairs folks to tackle this within the next couple of years (if it’s not done to them first).
Cheers,
BRD
I’ve been watching this really high quaility discussion. Fantastic. Very educational.
On two side issues –
MF writes:”I don’t want Bush to face any political heat for protecting me, even if he is asserting Executive powers far beyond those which the Constitution provides.”
But Bush doesn’t have to go this route. He can go before Congress and ask for the necessary powers. He’s had over three years to do so. With both houses controlled by his party and a recognized threat, it is very unlikley he would be denied, especially if the powers included some sort of real oversight. The fact that he hasn’t is what is interesting and has been discussed here.
Regarding the discussions of domestic data mining – the use of automatic means to search large quanitities of information – mentioned by BRD, the problem is what to do with the discovered information.
IF the mining is used only to discover imminent threats to national security, there is probably no problem. The President can use his powers as CIC to alleviate this threat.
However, if the mining is used to detect possible future threats, say a cell of American citizens who are domestic terrorists, there’s a problem. This has to be pursued as a criminal matter. To pursue it you need probable cause to get a warrant. Assuming that the information mined is normallly not allowed to be examined without a warrant, it is not admissable for a criminal warrant. It would be similar to the police walking around peaking in doors and then getting a warrent when they detect an illegal activity.
PAH
But Bush doesn’t have to go this route. He can go before Congress and ask for the necessary powers. He’s had over three years to do so. With both houses controlled by his party and a recognized threat, it is very unlikley he would be denied, especially if the powers included some sort of real oversight. The fact that he hasn’t is what is interesting and has been discussed here.
This really gets at the heart of what is troubling here. In early 2002, when this program started, Congress would have rubber stamped any law that was even remotely reasonable in an effort to fight terror. Indeed, the White House asked for and received a number of key amendments to FISA in the Patriot Act. To think that the president was, at the same time, issuing a secret executive order allowing the NSA to disregard FISA is troubling to say the least. Why not simply ask for the necessary revisions to FISA? Why not seek some sort of authorization from Congress? The most logical answer (and the one Gonzales hints at) is that the Bush administration did not think, as a political matter, that Congress would go along with their plan. Which really makes you wonder what the program entails.
I know Jeff and others will argue that it was a matter of principle, that the White House did not want to seek Congressional authorization because, by doing so, they would be tacitly admitting that the president didn’t have the exclusive authority to do this on his own. The problem with this theory, however, is that the administration has already conceded on countless occasions that it doesn’t have exclusive authority in this regard. After all, they sought and succeeded in having FISA amended via the Patriot Act. And if you look at the DOJ letter and listen to Gonzales’ statements, you’ll see that even now, the president isn’t arguing that he as exclusive authority. That argument is only being offered by Bush’s overzealous defenders. The administration knows how silly it is and is therefore being careful not to make it.
From ABC News:
AL – GC of CIA? BFD.
AL – GC of CIA? BFD.
Jeff Goldstein of Pajama Media? Really really small FD.