Here’s a facsimile [pdf] of the letter delivered by Arlen Specter to Attorney General Alberto Gonzales concerning the upcoming Congressional “wiretapping”/”domestic spying” show trial hearings. The complete text follows:
I write to let you know some of the subjects which I would like you to address in your opening statement on the Judiciary Committee hearing scheduled for February 6, 2006 on “Wartime Executive Power and the NSA’s Surveillance Authority.”
(1) In interpreting whether Congress intended to amend the Foreign Intelligence Surveillance Act (FISA) by the September 14,2001 Resolution (Resolution), would it be relevant on the issue of Congressional intent that the Administration did not specifically ask for an expansion for Executive powers under FISA? Was it because you thought you couldn’t get such an expansion as when you said: “That was not something that we could likely get?”
(2) If Congress had intended to amend FISA by the Resolution, wouldn’t Congress have specifically acted to as Congress did in passing the Patriot Act giving the Executive expanded powers and greater flexibility in using “roving” wiretaps?
(3) In interpreting statutory construction on whether Congress intended to amend FISA by the Resolution, what is the impact of the rule of statutory construction that repeals or changes by implication are disfavored?
(4) In interpreting statutory construction on whether Congress intended to amend FISA by the Resolution, what would be the impact of the rule of statutory construction that specific statutory language, like that in FISA, trumps or takes precedence over more general pronouncements like those of the Resolution?
(5) Why did the Executive not ask for the authority to conduct electronic surveillance when Congress passed the Patriot Act and was predisposed, to the maximum extent likely, to grant the Executive additional powers which the Executive thought necessary?
(6) Wasn’t President Carter’s signature on FISA in 1978, together with his signing statement, an explicit renunciation of any claim to inherent Executive authority under Article II of the Constitution to conduct warrantless domestic surveillance when the Act provided the exclusive procedures for such surveillance?
(7) Why didn’t the President seek a warrant from the Foreign Intelligence Surveillance Court authorizing in advance the electronic surveillance in issue? (The FISA Court has the experience and authority to issue such a warrant. The FISA Court has a record establishing its reliability for non-disclosure or leaking contrasted with concerns that disclosures to many members of Congress involved a high risk of disclosure or leaking. The FISA Court is at least as reliable, if not more so, than the Executive Branch on avoiding disclosure or leaks.)
(8) Why did the Executive Branch not seek after-the-fact authorization from the FISA Court within the 72 hours as provided by the Act? At a minimum, shouldn’t the Executive have sought authorization from the FISA Court for law enforcement individuals to listen to a reduced number of conversations which were selected out from a larger number of conversations from the mechanical surveillance?
(9) Was consideration given to the dichotomy between conversations by mechanical
surveillance from conversations listened to by law enforcement personnel with the contention that the former was non-invasive and only the latter was invasive? Would this distinction have made it practical to obtain Court approval before the conversations were subject to human surveillance or after-the-fact approval within 72 hours?(10) Would you consider seeking approval from the FISA Court at this time for the ongoing surveillance program at issue?
(11) How can the Executive justify disclosure to only the so-called “Gang of Eight”
instead of the full intelligence committees when Title V of the National Security
Act of 1947provides:SEC.501.[50 U.S.C. 413] (a)(1) The President shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity as required by this title.
(Emphasis added)(2)(e) Nothing in this Act shall be construed as authority to withhold information from the congressional intelligence committees on the grounds that providing the information to the congressional intelligence committees would constitute the unauthorized disclosure of classified information or information relating to intelligence sources and methods.
(Emphasis added)(12) To the extent that it can be disclosed in a public hearing (or to be provided in a closed executive session), what are the facts upon which the Executive relies to assert Article II wartime authority over Congress’ Article I authority to establish public policy on these issues especiallywhere legislation is approved by the President as contrasted to being enacted over a Presidential veto as was the case with the War Powers Act?
(13) What case law does the Executive rely upon in asserting Article II powers to conduct the electronic surveillance at issue?
(14) What academic or expert opinions does the Executive rely upon in asserting Article II powers to conduct the electronic surveillance at issue?
(15) When foreign calls (whether between the caller and the recipient both being on foreign soil or one of the callers or recipients being on foreign soil and the other in the U.S.) were routed through switches which were physically located on U.S. soil, would that constitute a violation of law or regulation restricting NSA from conducting surveillance inside the United States, absent a claim of unconstitutionality on encroaching on Executive powers under Article II?
This letter will further confirm our staffs’ discussions that the Committee will require, at a minimum, the full day on February 6th for your testimony.
Sincerely,
Arlen Specter
[my emphasis]
Quick observations: some well covered ground here—included within which are some opportunities for the DoJ to correct some well-publicized misconceptions about certain FISA provision they appear to be “working around” for no other reason, if you believe critics, other than that they just feel—y’know, kinda KINGLY.
I’ve highlighted question (10)—“Would you consider seeking approval from the FISA Court at this time for the ongoing surveillance program at issue?”—because this question seems to me to be the entire crux of the issue. In fact, one can fairly rephrase the question thus: “Would you be willing to trade your defiant standing on executive power and inherent authority for a Congressional admission of the rectitude and necessity of your actions. That is, would you be willing to sacrifice the appearance of a Presidency that is willing to sidestep the Congress during war when he feels it necessary for the (pragmatic) imprimatur of Congress, which could make this unpleasantness over questions of ‘legality’ disappear?”
My suspicion is the answer to this most key question will be no—and will ensure that these hearings accomplish either 1) very little toward a reconciliation of the separation of powers dispute that underlies this entire opportunistic scandal (and, in fact, increases the pressure, with more talk of articles of impeachment being floated by the more committed and unthinking Bush haters), or 2) a face-saving acquiescence by the program’s critics, which will still allow, at its fringes, the voices of certain liberal-Dem stalwarts important to the base to complain that they are unsatisfied as to the program’s legality.
What I DON’T anticipate happening—and I could be wrong, because at times Bush has caved where I thought it quite unlikely he’d do so (McCain – Feingold being first and foremost)—is the President or the DoJ granting that power of “approval” to the full Congress, because to do so would be to validate their purview over the executive power he is, at base, asserting.
It matters not, as some critics have argued in an earlier thread, that AUMF as the statutory override for FISA in effect means that the President wouldn’t, in theory, need FISA warrants anymore for domestic-to-domestic intercepts than he would foreign intel gathering. Because again, that fact doesn’t appear to have stopped him from intentionally keeping Congress and FISA in the loop where FISA didn’t impinge upon the ability of the NSA to do the kind of surveillance the President and his signals intel corp thought crucial to protecting the homeland. In other words, deference in one area is not, as critics would have it, necessary proof of wrongdoing. In fact, it is just as likely that it is a sign of courtesy and respect for the separation of powers.
In the Gonzales statement I linked and highlighted yesterday, the other issues are largely and thoroughly addressed in advance of the hearings. And again, a careful parsing of Specter’s key concerns/queries reveals a preoccupation with separation of powers questions.
Take, for instance, his first question:
In interpreting whether Congress intended to amend the Foreign Intelligence Surveillance Act (FISA) by the September 14, 2001 Resolution (Resolution), would it be relevant on the issue of Congressional intent that the Administration did not specifically ask for an expansion for Executive powers under FISA? Was it because you thought you couldn’t get such an expansion as when you said: “That was not something that we could likely get?”
The answers to this are manifold: first, no specific “expansion” of executive power is necessary when the original resolution passed by Congress gave the President “all necessary and appropriate force†to protect Americans “at home and abroad†and to take action to prevent further terrorist attacks “against the United States.â€Â
Additionally, the combined intention of Congress, as Justice O’Connor has noted, is implicit in the language of the AUMF Resolution itself—in which historically and traditionally (and for practical reasons too obvious to outline) Congress does not enumerate what can and cannot be done specifically in terms of making use of military assets. From Gonzales, noting O’Connor:
it does not matter that the Force Resolution nowhere specifically refers to the detention of U.S. citizens as enemy combatants. Nor does it matter that individual Members of Congress may not have specifically intended to authorize such detention. The same is true of electronic surveillance. It is a traditional incident of war and, thus, as Justice O’Connor said, it is “of no moment†that the Resolution does not explicitly mention this activity.
These omissions are not at all surprising. In enacting the Force Resolution, Congress made no attempt to catalog every aspect of the use of force it was authorizing.
Instead, following the model of past military force authorizations, Congressâ€â€in general, but broad, termsâ€â€confirmed the President’s authority to use all traditional and legitimate incidents of military force to identify and defeat the enemy. In doing so, Congress must be understood to have intended that the use of electronic surveillance against the enemy is a fundamental component of military operations.
When Gonzales said the expansion of executive power, “was not something that we could likely get,” all that means is Congress may have taken an earlier opportunity than this leak to press the separation of powers questions we’re now debating. What it doesn’t mean is that Congress had the authority to grant that power anyway, particularly under traditional readings of War Powers and Article II authorities for the executive. Hamdi just later made that even more clear.
I won’t go through each of these questions from Congress—they are mostly, as you’ll surely note, self-serving and, sadly, indicate a Congress that is trying to play the same game with AUMF that it did with its force authorization for Iraq: they are claiming now that they didn’t know that the powers they were granting would be used in the way they were, even though the usages will prove to be (and have always been held to be) constitutional under inherent presidential authority. The fact is, it doesn’t MATTER what Congress now says it “intended” under AUMF; the fact is, as Gonzales noted yesterday:
Just a few days after the events of September 11th, Congress enacted a joint resolution to support and authorize a military response to the attacks on American soil. In this resolution, the Authorization for Use of Military Force, Congress did two important things. First, it expressly recognized the President’s “authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.†Second, it supplemented that authority by authorizing the President to, quote, “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks†in order to prevent further attacks on the United States.
The Resolution means that the President’s authority to use military force against those terrorist groups is at its maximum because he is acting with the express authorization of Congress. Thus, were we to employ the three-part framework of Justice Jackson’s concurring opinion in the Youngstown Steel Seizure case, the President’s authority falls within Category One, and is at its highest. He is acting “pursuant to an express or implied authorization of Congress,†and the President’s authority “includes all that he possesses in his own right [under the Constitution] plus all that Congress can†confer on him.
Of all the questions outlined, however, number (6) is my favorite, not simply for its gall, but for its comedic value:
(6) Wasn’t President Carter’s signature on FISA in 1978, together with his signing statement, an explicit renunciation of any claim to inherent Executive authority under Article II of the Constitution to conduct warrantless domestic surveillance when the Act provided the exclusive procedures for such surveillance?
Now, while I don’t find it especially surprising that Carter might try to sign away the executive power in express breach of the Constitution, I do find it humorous that its irony appears lost on Specter: what power does one President have to surrender the his constitutionally mandated authority on to a congressional statute? And if he does indeed have that power, but what possible scenario would not another President simply point to the Constitution and demand that power back?
And in fact, that is, in effect, what is happening here: Bush is reasserting inherent Article II authority, and in the process, allowing those most invested in shifting the separation of powers to a parliamentary setup wherein Congress can control the President by means unprovided for in by the constitutional outlay of separations / checks and balances to hang themselves with the statutory paper rope they’ve spent years knotting together.
The legislative history of FISA shows that there was concern at the time that it may, in fact, be unconstitutional; Carter AG Griffin Bell, to beat back this argument, assured signers that FISA was never meant to constrain Article II powers.
Ironically, we’ve now reached the point where Congress, having had the ostensible upper hand under their own expansive reading of FISA’s reach for the past 27 years, is doing battle from a legislative highground that is built on constitutional quicksand.
At any rate, the legal trappings will be interesting to behold—but the real battles: 1) the separation of powers battle that the WH has been spoiling for for 5 years now, and 2) the political battle that will leave critics of the program looking either weak on security or more concerned with protecting their own dubiously held statutory turf than with protecting the homeland—shall be the most fun to watch playout, particularly when we can be assured in advance that the side that (to my mind) has clearly already lost both battles empirically and on the merits will be held up as the righteous side by our fearless advocates in the MSM.
I welcome any additional thoughts you may have.
*****
(My previous posts on the subject are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here, and they contain comprehensive sourcing).
****
update: NSA “domestic spy” critic and civil rights attorney Glenn Greenwald has posted twice now on the superficially significant defeat of the DeWine legislation
which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA. Specifically, DeWine’s legislation proposed:
to amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion. . . .
In other words, DeWine’s bill, had it become law, would have eliminated the “probable cause” barrier (at least for non-U.S. persons) which the Administration is now pointing to as the reason why it had to circumvent FISA.
Glenn cites (approvingly) exchanges with conservatives Mark Coffey and Marc Schulman on this issue.
Two things to consider: it is AG Gonzales, the DoJ, and the NSA counsel who deal with the legal specificities of the program—not Hayden, answering questions at a press conference—and Gonzales addressed these points in his prepared statements to Georgetown Law yesterday. Pace Greenwald (and Hayden, who was never in a position to speak comprehensively on the legal and logistical reasoning offered for the administration’s decision not to support the DeWine legislation [Baker’s statement here]), Gonzales raises other problems with FISA workings besides concerns about probable cause under the fourth amendment—namely, the speed with which FISA operates, even with the 72 hour emergency exemption. Again, we don’t know enough of the specifics of the program and how it operates to say with any certain why or why not such an answer is sufficient. Secondly, we’re not told what the “modifications” to probable cause were to be exactly, and so there is no telling that those modifications were helpful in the way either the administration or the NSA thought FISA needed modification under the program’s actual operational parameters. Third, Hamdi had not yet been decided, and so the primary early justification for authorization was most certainly a constitutional one, specifically pertaining to the President’s Article II and inherent authority powers (taken together with previous court rulings); it wasn’t until Hamdi (and the FISA Review Court) noted that AUMF provided clear statutory exemption that the administration saw the wisdom (if you buy the argument that political gamesmenship and separation of powers issues are at play here) to address the alleged FISA statutory limitations on their constitutionally-granted executive powers.
Here’s Gonzales yesterday on point:
We do not have to decide whether, when we are at war and there is a vital need for the terrorist surveillance program, FISA unconstitutionally encroaches – or places an unconstitutional constraint upon – the President’s Article II powers. We can avoid that tough question because Congress gave the President the Force Resolution, and that statute removes any possible tension between what Congress said in 1978 in FISA and the President’s constitutional authority today.
The secondary, statutory defense of the program expanded after Hamdi; the DeWine legislation, which would have modified the FISA standards, would have also, perhaps, suggested that FISA was THE RULING STANDARD on such issues—a concession the DoJ and White House weren’t then, and aren’t now, prepared to make. That is, to say that probable cause relaxation under FISA would work to make the program “legal” would be to say, indirectly, that without such relaxations, the program was not yet legal.
This is not the position of the Administration; and both Hayden’s and Gonzales’ invocation of probable cause being a problem under FISA is a truism, one that could have been “fixed” (from the perspective of FISA’s presumed authority), but one that needn’t have been fixed under Article II authority—making the exercise showy, academic, and moot.
The administration’s desire to appear to cover its legal bases under both inherent authority AND FISA—a question Glenn Greenwald raises as implied proof of potential wrongdoing—is a matter we can only speculate upon. But among the considerations Glenn hasn’t factored into his analysis are the leak itself and the opportunism it created for Congressmpersons and pundits of a certain bent; and that the attention now being focused on FISA could turn out to prove its unconstitutionality as it has sought to expand beyond its original legislative intent.
Or perhaps the adminstration simply wanted to meet any and all potential charges of illegality thrown at them—and the Hamdi decision, which solidified in this conflict the breadth of the AUMF’s authorization—allowed the DoJ to make the case within the FISA paradigm more forcefully.
Keep in mind, I am just now reading this (woke up late and have been playing catchup all day), so more later, perhaps—including even reconsiderations of these observations.
I did, however, notice some comments in the previous thread on this subject, so you might want to search there for some rebuttals to Greenwald’s latest gotcha.
****
Found this at Funmurphy’s:
[…] Look it’s really quite simple. If somebody sits in the comfort of his home in the US and sends something, including information, outside the US then what is sent is sent internationally. If that same person receives something in the same comfort of his home from abroad, including information, then what he recieves he recieves internationally. Now here is something that’s going to really blow some people’s minds: If you, a US citizen in the United States, provide anything, including information to a foreign national anywhere, even in the comfort of the United States, or even indirectly through another US citizen if you know it will be provided to a foreign national, even inside the borders of the United States, you have committed an export [PowerPoint file].
I had no idea.
Ain’t the blogosphere cool?
Tom Maguire has more. Here, too.
Lucky for the AG this isn’t all a bunch of course assignments, ‘cause given the bits referenced here and browsing the rest of the questions he could get away with reading verbatim the text of his Georgetown speech.
…and then rolling his eyes.
Jeff writes:
If I read this correctly, Jeff is saying that the President does have the power, under AUMF/Article II, to intercept purely domestic calls involving one person believed to be associated with AQ.
So there you have it. Jeff thinks that the fact that we’re at war with terrorists gives Bush the unitary authority to order wiretaps, within the US, on calls between two US locations, without the need for warrants or court orders and with no oversight outside of the Executive branch.
Of course, Jeff points out that our kind and trustworthy President, out of the goodness of his heart, kept Congress and FISA (I assume he means the FISA court) “in the loop”—if by in the loop, you mean secretly, occasionally, and in a still-unknown (but probably miniscule) level of detail briefing a few selected leaders who can’t consult with legal or technical experts or even take notes.
I credit Jeff for admitting that warrantless purely domestic surveillance is perfectly permittable under the legal theories espoused by the Adminsitration and on this site. This will sharpen the public debate over whether the President ought to have such power.
Don’t get out much, do you MF?
Sorry for the doublepost, but one more thing:
Gonzales’ and Jeff’s reliance on Hamdi is truly inapposite. I mean, if you can’t distinguish between the incidents of military force on a foreign battlefield against an armed enemy actively engaging US forces (i.e., detainment of Hamdi) and the incidents of military force when such incidents are turned inward, on US soil, against US citizens, in likely violation of 4th Amendment rights and in certain violation of statutory rights under FISA, then you’re incapable of parsing disparate facts in any meaningful way.
A.G. Gonzales should testify before the committee, dressed in a white hood (for Senator Byrd), hold up a banner that says “The Constitution Is Not A Suicide Pact,” and turn his back on the senators at the hearing. Those Georgetown Law School students had the kernel of a good idea.
I’ll grant that the level of diction is a little bit much, but I don’t think you’ve quite got it there, MF: Jeff’s not asserting that’s true, he’s noting that the counter-factual and hypothetical extension of the argument is moot. Since the AG and the Administration haven’t asserted this, or acted on it, it’s not justified to act as if they have.
Of course, being more of a Hemingway fan myself, I’d put it something like “Just because you can make shit up doesn’t mean it’s true.”
So monitoring AlQaeda to US would be ok with you if the legal justification was not so broad. IOW keep protecting the country, withdraw the overbroad legal arguments, maybe claim some implausible interpretation of FISA that allows the program and have congress fix it all up ex post facto.
If that isn’t your position then you have been deceptive in your argument so far. Here’s your chance to clarify.
incidents are turned inward
Like shooting down a domestic cargo plane filled with fuel and explosives commandeered by terrorists flying toward the superbowl ???
Sorry, I don’t see the distinction.
Two reasons for using FISA for in country surveillance:
Practical … can employ criminal justice system against threats
Theory … avoides 4th amendment expectation of privacy issue because there is none with international calls
Is there any doubt that everyone knows the surveillance is necessary?
Is there any doubt that everyone knows the surveillance is necessary?
I believe the position is that Bush should keep doing it and keep us safe, but his reward for doing so will be a firing squad 21 Jan 2009.
Regards,
Ric
–because taking out a four-color, double-truck insert in the New York Times would be cheaper and quicker, would not involve sitting still for insults from the Baronet of Chappaquiddick, and would result in less of the information being transmitted to our enemies, Senator.
Regards,
Ric
Not sure if it was you or AL who offered that hypothetical as a reason why AUMF/Art II couldn’t possibly be enough to allow this program; but to now cite my assessment of that hypothetical as irrelevant such that you declare it proof that I support an imperial presidency, is patently dishonest.
As I have noted elsewhere, there ARE other checks and balances (congress controls the purse strings, it can impeach), so my rejection of a hypothetical that is designed to show that should a particular (and questionably constitutional) check be removed must, by some critics’ lights, result necessarily in an IMERIALIST PRESIDENCY, is an admission, only, that I find the premise faulty and the point moot.
As for the Hamdi distinctions MF wishes to draw, he is free to take those up with Justice O’Connor and AG Gonzales and the host of others who a) don’t see it his way, and b) are not so daft as to miss the shoehorning in to his formulation the phrase “in likely violation of 4th Amendment rights”—which is of course contrary to the arguments being made by those overseeing the program, and without which, MF’s argument crumbles entirely.
Yes, there is doubt of that. Have you not seen the ‘this is about spying on dissenters’ commentary. Or the ‘George Bush is more dangerous than AlQaeda’ brigade?
Disagree with those who believe that, fine, but don’t pretend they don’t exist.
Charlie (CO):
My whole point is that they have asserted this, just not acted on it (or, at least, admitted to having acted on it). Hayden has twice stated, when asked why they don’t just listen to purely dometic calls, that it was a decision made by the White House and NSA for practical and security/liberty balancing reasons,but it’s clear that it’s a decision that they made. Also, the Administration has forwarded no legal limitation on their ability to do so—nor, under the arguments they espouse, could they. That’s my point. If they are allowed to do what they’re doing now, legally, there is nothing to stop them from extending the program to purely domestic communications after the next attack happens, or after an audit reveals that important US-to-US communications are being missed. If what they’re doing now is ratified, then purely domestic warrantless eavesdropping is a done deal.
Jeff:
Don’t call me dishonest. I apparently misread your post. Sometimes your diction is confusing. I simply thought that you were arguing that the fact that the administration said it could do it doesn’t matter because they aren’t doing it. I thought you had accepted the (inarguable) point that, as I just wrote to Charlie (CO), the legal arguments they espouse require one to accept purely domestic surveillance as well. Apparently, you don’t, athough no one has explained why that position makes sense. So, my bad for misconstruing your words.
As for this: “I find the premise faulty and the point moot.” —
Moot is the wrong word. Moot is defined as no longer relevant. This situation is better described as not yet relevant; in other words, the issue isn’t ripe. But my argument, again as outlined above to Charlie (CO), is that it is indeed ripe. If we don’t have this discussion now, we won’t ever have it, and purely domestic warrantless surveillance will occur.
As far Hamdi, I doubt O’Connor would sign on to such an assertion of Presidential power over citizens inside the US, and you missed the part where I mentioned statutory rights under FISA. Those are legit, and they can be enforced. Also, simply because they say it’s not a Fourth Amendment violation, doesn’t make it so. I think my argument has the better of the law. Crumble shmumble.
MF,
Of course the President has the power, in a time of war, to monitor enemy communications inside the US even if they are using our civilian communication network.
If we are invaded by Canada we are going to listen in on their signals even if their soldiers are on American soil and they are talking to each other on 7-11 payphones.
The idea that we can’t, won’t, or shouldn’t is stupid.
“As far Hamdi, I doubt O’Connor would sign on to such an assertion of Presidential power over citizens inside the US, and you missed the part where I mentioned statutory rights under FISA.”
yeah, well, unfortunately miss usually makes up her mind as she goes will not be on the court to back you up when this case is reviewed. undoubtedly an origionalist will view the constitution for what it says and not what you you think it should say in this instance.
regards
I think my argument has the better of the law.
Doesn’t everyone ???
So monitoring AlQaeda to US would be ok with you if the legal justification was not so broad.
If that isn’t your position then you have been deceptive in your argument so far. Here’s your chance to clarify.
MF—
No, I didn’t “miss” anything. Your assertion that FISA’s statutory authories “are legit, and they can be enforced,” is a) precisely at the heart of the separation of powers argument, and b) has not shown to be violated in any specific case. Ditto fourth amendment violations.
Your entire argument, again, can be reduced to fear of the misuse of power by men with malice in their hearts. I have simply given the benefit of the doubt to the the administration, the NSA, the DoJ, and the other oversight bodies who say that no such violations have taken place.
Sorry if I didn’t answer that the first time, but I just have too much on my plate to be your moot court parnter.
Also—If you don’t find my diction up to snuff, go read someone else. I post oftentimes without proofreading carefully, but I’m not concerned that I have troubles putting together cogent written arguments, your veiled suggestions about my deficiencies as a writer notwithstanding.
Now. Last time. You write:
First, I find it charming that you “doubt O’Connor would sign on to such an assertion of Presidential power over citizens inside the US.” But again, here’s Gonzales, referencing O’Connor:
This whole “debate” between the right and left wing hair-splitters is a laugh. Too bad it’s not funny. I’m reminded of Harvey’s challenge to Butch: “guns or knives”.
Butch Cassidy: No, no, not yet. Not until me and Harvey get the rules straightened out.
Harvey Logan: Rules? In a knife fight? No rules.
[Butch immediately kicks Harvey in the groin]
Butch Cassidy: Well, if there aint’ going to be any rules, let’s get the fight started. Someone count. 1,2,3 go.
Sundance Kid: [quickly] 1,2,3, go.
[Butch knocks Harvey out]
Flat Nose Curry: I was rooting for you all along, Butch
Butch Cassidy: Well, thank you, Flatnose. That’s what sustained me in my time of trouble.
Right now, we are engaged in a knife fight with dark-age fanatics and all of you sorry folks are arguing over the the f-ing rules.
Jeff: you are one bright and clever guy, however, you give credibility to the terrorist enablers when you dignify their squeeling prattle with reasoned argument.
Besides seconding everything MF has written, I thought I’d point out that the line of reasoning in the above-quoted paragraph makes no sense at all. First, this paragraph seems to imply that Hamdi was decided before the DeWine amendment was voted down. It wasn’t. Hamdi was decided in 2004. The DeWine amendment was brought before Congress in mid-2002.
Second, this explanation for the administration’s opposition the DeWine amendment can’t possibly be correct. Why? Because the DeWine amendment was not the only proposed amendment to FISA following the passage of the AUMF. The Patriot Act–which was passed subsequent to the AUMF–incorporated a number of important amendments to FISA. So the validity of FISA was affirmed by Congress subsequent to the AUMF. Passing the DeWine amendment would merely have been one more post-AUMF amendment to FISA. So the administration couldn’t possibly have been concerned about impliedly endorsing the legitimacy of FISA. They’d already done that, big time, when they pushed the Patriot Act through Congress and the President signed it into law.
Well, either that, or you are an attorney lobbying for the release of the captured EPW/IC’s held at Gitmo. Let’s not be closed minded here.
Actually, folks, we should be glad this debate’s happening.
It makes it clear that some people have no clue how the US government is supposed to be structured.
But none of those say we can’t spy on al-qaeda. Just that we can’t spy on dissenters, or do it lawlessly, etc…
Or the people captured at O’Hare and held at a navy brig. There’s a reason the admin doesn’t want the supreme court to rule on that case. They know they’re wrong on that.
See, MF, that’s what I mean by “making shit up.” The notion that Jeff et al are not distinguishing between violent force and intercepts is a straw man; the notion that they’re suggesting applying military force against US residents on US soil is doubly so; and in any case, the notion that these intercepts (or more likely, traffic analysis of “pen registers” or the like) are being done against US citizens, on US soil, in certain violation of statutory rights, is completely contrary to anything anyone has said about the program that’s in a position to know.
But other than being based on inflammatory phrasing of straw man using the covert assertion of the consquent you purport to be proving, I suppose it’s not a bad argument.
So you point is that because they obeyed their interpretation (or Counsel’s interpretation) or the law, and didn’t do something that you agree they shouldn’t have done, but chose not to do it because you don’t agree with a reason that you impute to them, its like the did the thing?
Honest to God, MF, the notion is so completely loopy it’s hard to make it make sense in a sentence.
One of the major bones of contention between the Right and Left on the NSA Al-Qaeda Surveillance Program (the Left refer to it as a “Domestic Spying”) is the limit and scope of the Authorization for the Use of Military Force (AUMF) given to the President by Congress on 09/14/2001.
I want to explore where both sides think the limits are with this hypothetical.
Let’s say a group of Al-Qaeda (or some other terrorist organization) terrorists (which included American citizens) set up a secret camp somewhere in the swamps of Louisiana. Let’s also assume that they have successfully produced a large quantity of a deadly chemical weapon that only the military posseses the type of ordnance necessary to destroy and neutralize i.e. ordinary bombs would only create a large deadly cloud.
Does the AUMF authorize the President to send an Air Force jet to drop a missile on this camp? What about a platoon of Navy SEALS?
No, Martin. I think all we’d be able to do is call Governor Blanco, and try to remind her that she has the National Guard at her disposal.
Well, if any Governor needs to be reminded about their their own National Guards and why they have their own National Guards and what purpose National Guards serve then that Govenor is a worthless idiot.
It seems patent to me that the Founders intended to create a nation, not a loose confederation of individuals. The other way would be a suicide pact, wouldn’t it? If a citizen’s (or, let’s be just as honest, a resident’s) right (or “general expectation,” in the case of a resident) to be free from even the threat of unreasonable search in wartime, for instance, trumped the Executive’s responsibility to wage war as effectively as possible? And if the only alternative is Congressional approval in advance of an Executive’s activity in his/her role as CiC, what on earth do we have a President for? Good heavens. Congress didn’t anticipate that electronic surveillance of enemy communications would be part of prosecuting this conflict – these are the people who think they ought to run the war? (Or, conversely, they did anticipate it but are disingenuously pretending now that they didn’t, so as to “advance” their claim that all war powers emanate from them – good heavens again.)
Sorry, lots of italics there.
MF, you seem to imply that entirely domestic electronic surveillance is The Line that, if crossed, would constitute an untenable breach of individual rights. Why? I can understand your concern if we weren’t at war – but why now? Or is your concern more that such surveillance performed in wartime would open the door to the same surveillance in peacetime? I’ve wondered for some time whether our problem here is that we haven’t faced a threat that was both existential and “hot” (as opposed to “cold” as in “Cold War”) for so long that we’ve forgotten what our accepted civic responsibilities to our nation have been during other conflicts, including ration cards, temporary limitations on free speech and movement, and conscription (which, BTW, I emphatically don’t support).
Jamie:
Of course they did—they just thought FISA (as amended by the Patriot Act) was satisfactory. And there’s no evidence that, outside of (maybe) the briefed Gang of Eight, at least, Congress ought to have known that FISA wasn’t working to the Administrations’ satisfaction, especially considering the DOJ’s statements re DeWine Admendment, which stated clearly that FISA was doing just fine. (Think Congress isn’t beginning to wonder whether the Administration was being downright duplicitous back then?)
Also:
Because, Jamie, the war on terrorism is never, ever going to end. There will always be radicals looking to blow up Americans. There is no ending point. In prior wars, when Presidents assumed extra-constitutional powers, there was a tacit guarantee that the war would end at a definite point in time. There will be no treaties in this one, no victory parades where we can all look at each other an say: “Nice, now let’s stop the warrantless domestic surveillance.” Once it’s here, it’s here to stay.
And while you may be an uber-hawk and trusting of George Bush, the vast majority of Americans would be opposed to purely domestic warrantless surveillance, fears of terrorism notwithstanding. That’s why the Administration has emphasized ad nauseum that all intercepted calls are international. But, as I’ve argued countless times, if we accept the current surveillance program and its legal justifications, purely domestic surveillance is a logical and inevitable next step. Considering this war will last well beyond our lifetimes, that’s something I will not accept, because it’s something our Constitutional system doesn’t countenance.
MF  They would be? They all called you?
Hey, Hugh Hewitt, tell me again how stupid all we conservatives were for questioning whether Specter should be given the Committee chairmanship.
CONGRESS UBER ALLES!!!
Yep, about right.
So obviously we must constrain ourselves so that no decisive conclusions would ever be possible, and protect our *VITAL* freedom to call whoever we want in a cave in Afghanistan, even if it is a mass-murdering goat-philanderer. There must be sunset provisions!!!
Gee, for the life of me I can’t seem to see why the Long, Dark Night of Conservative Fascist RETHUGLICANS CANNOT GET IT INTO YOUR HEADS THAT SOME THINGS ARE MORE IMPORTANT THAN SAFETY!
LIKE POLITICAL SPEECH CALLING FOR DEATH TO THE GREAT SATAN, CAN YOU IMAGINE AN AMERICA IN WHICH WE DIDN’T ROLL OVER TO DEFEND THAT!!!!, OR GETTING A GOOD FALLAFUL RECIPE FROM ZAWAHIRI!
BASTARDS!!!!!
Whoa, my last security word was king and now its george.
What the fuck is that about, Jeff, you dark Knight of International ROthschild Illuminati Jooooowry for the Smug, Evil Supergenius-Moron Chimperor and his Eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeevil minions of dark brooding evil, like CheneyBurton, He Who Listens To Every Conversation, Reads All Emails, and Punishes All Dissent, of evil?
MF:
Specter’s “If Congress had intended to amend FISA by the Resolution, wouldn’t Congress have specifically acted to as Congress did in passing the Patriot Act giving the Executive expanded powers and greater flexibility in using ‘roving’ wiretaps?” certainly makes it clear to me that Congress didn’t do a very adequate job of anticipating the requirements of a modern war. This is not a Congress-bash: the whole point the President seems to be trying to make is that it’s impossible to know ahead of time what measures will be necessary to defend the nation. But it’s instructive, I think, that Congress thinks it ought to try. (Or has the right to try.) (Or that war by Congressional committee has any prayer of success.)
It’s so cool that I get to be an uber-hawk.
Indeed so, a tacit guarantee. My husband and I were discussing this point recently. He tends to agree with you, though he acknowledged that if Reconstruction had gone differently (not that I’m saying it was an ideal postwar period), it’s not difficult to envision a hardened resistance of Rebel veterans that could have extended the de facto Civil War pretty well indefinitely. Look at the “War of Northern Aggression” references that persist even today. Sometimes you have to roll the dice. The checks on Executive power that have always existed are not abolished by anything Bush has done, as Jeff has repeatedly observed. Now, if Bush runs for reelection in 2008, well, he’ll be as reprehensible a potential dicatator as, say, FDR. (Yeah, yeah, I’ll give FDR credit for recognizing that the downsides of a change in leadership during a serious national crisis might outweigh almost 200 years of tradition.)
Can we agree that there’s a difference between Timothy McVeigh and al Qaeda? Namely, that one was acting essentially alone, while the other represents an international group united not only by aims but by strategy and operational cooperation? There will always be crazies (or “radicals looking to blow up Americans,” if you prefer), and there will always be asymmetric warfare, but it seems crystal-clear to me that the SLA is not al Qaeda, that disconnected groups of violent malcontents are not coordinated terror cells, and that we won’t lose our ability to spot that difference. I do agree with you that it’s harder to envision how this war will end, what the world will look like when it’s all over, than, say, WWII – but if WWII had ended differently, if we’d had to surrender territory in the Pacific to Japan and basically all of Europe to Hitler, is there any question that the abrogation of certain civil liberties would’ve been a lesser concern than our defeat?
I’m saying that victory is more important than this particular issue, which the administration in office seems to be approaching with great care in order to minimize the effects on the civil liberties of Americans. Until they actually make that grab for power you apparently believe they’re on the brink of, can’t you just cling to the top of your slippery slope? There’s a whoooooole lot of slope to slide down between here and fascism, ISTM.
the war on terrorism is never, ever going to end
Lame nonsense that discredits POV. The AUMF will expire soon enough.
Emphasis mine.
MF,
That is wrong in so many ways, I do not know where to begin. Your entire argument is based on Chimpy having malicious intent. Please tell me, how you have divined from history, that Lincoln’s actions at the outbreak of the Civil War demonstrated a tacit agreement of time limitation?
With the benfit of history we can give Abe the benefit of the doubt. How about you doing the same with the elected Commander-in-Chief whose term of office is time-limited?
We have more irony that we could offer to the left, but this example kind of takes the old irony-frosted cake.
Quick check of the Constitution (I would link to http://www.archives.gov/national-archives-experience/charters/constitution_transcript.html these folks if the preview would render what I want, as it doesn’t you get it messy) for addressing foreign affairs, lets see:
Congress – Article 1 – Regulate commerce with foreign nations, Set rules for immigration, Set tribunals inferior to the Supreme Court, Define and punish felonies on the High Seas, Declare War, Letters of Marque and Reprisal during Wartime.
Executive – Article 2 – CinC of US Armed Forces, Make Treaties with advice and consent of the Senate, Appoint Ambassadors.
Judicial – Article 3 – Enforce Treaties, be the sole Court where Ambassadors may be tried, sole Court of legal grievences of Another State against the US, and look at Treason.
Amendment IV – No warrantless searches and seizures against individuals.
Amendment V – Suspends normal proceedings for armed forces in time of War.
So, FISA court for judicial proceedings set up by Congress. Check.
Armed forces and needing to spy on threats to the nation outside the US by the Executive. Check.
Has Congress indicated that this is a breach of International Trade under its jurisdiction? No.
Has Congress made rules pursuant to its High Seas authority to cover communications? Presumably so. However, as this involves an Authorized Use of Military Force by Congress, it must defer to the Executive in its CinC powers. Unless Congress wants to start handing out Letters of Marque and Reprisal… now *that* I would love to see!
Has anyone been prosecuted by the proceedings going on? Not that I am aware of.
Do citizens have any right to expect communications not taking place between the States of the United States to be secure? No.
Note that any laws that are passed that would inherently limit the Constitutional powers of any of the branches of government cannot be applied. Constitution over law.
You talk to al Qaeda outside of the US, you can expect it to be tapped.
The Executive conducting espionage outside the confines of the United States and its Territories is a pretty well known fact of life. If it wants to prosecute Citizens in the US, it needs to go through FISA. If it does not intend that, then the only thing Congress can claim is via its commerce powers. AFAIK no treaties limiting the Executive in this area have been ratified.
I really fail to see a problem here. Not a commerce claim. Not a Treaty claim. Happens outside the US.
Where’s the beef?
ajacksonian:
Too right. But MF and AL seem (IMHO overly) concerned that one reason given by Hayden for not pursuing purely domestic eavesdropping is a practical one: there’s just too much traffic. Now, it’s entirely possible to conclude as MF particularly has done that if the only objection to intra-US eavesdropping is a practical one, then once technical advances remove that objection, we’re on our merry way to rampant disregard for the Fourth Amendment.
But MF’s opening assumption is flawed: even he acknowledges (1/25, 8:38PM) that Hayden also put forth a security/liberty balancing reason for the Administration’s not having pursued this course. Quite aside from Hayden’s statement and Hayden’s irrelevance to the legal framework of the Administration’s reasoning, there’s also the fact of the Administration’s extensive efforts to vet this program, its temporary shutdown of the program while a question about its legality was answered, its continuing to behave like a law-abiding body by reauthorizing the program every month and a half and briefing appropriate members of Congress on the program – these actions indicate an administration that actually cares about the Fourth Amendment rather than one slavering to violate it. Heck, even if these actions were hard-eyed cynicism on the part of the Administration, the effect would be the same.
Now, tell me if I’m wrong, but the FISA court is the one you go to if you want to *prosecute* someone inside the US if you are following patterns of communications, like the NSA does. For *that* you need a warrant. That is the *balance* set up INSIDE the Constitution. Congress inferior courts, Executive CinC activities.
Just listening to communications outside the US that happen to have one end inside the US?
While you might think that there is a right of privacy due to you, the Constitution only covers inside the US for those rights. Throw in territories, protectorates and Embassies to that. You have *no* right of privacy expectations outside of the lands and territories and waters governed by the United States. Yes, zero expectation. Amendments IX and X only count *inside* that Zone of Control.
Any ‘But this could lead to…’ is scenario spinning of the worst order. Wake me up when this is over, I don’t have time for people who don’t even bother to figure out the system of government they live under. Constitution *first*. Laws *second*. We are in Constitution land with this and each branch having their powers thoroughly scoped as given in the Constitution. Congress can claim commerce provisions, but not CinC activities. Unless they are prepared to issue letters of Marque and Reprisal (yes, please!) to help with their Authorization.
Espionage in the US I expect to be handed over to the FBI Counter-Espionage folks. A phone number can be thrown their way with a little tag saying, *interesting, you might want to see what’s going on*.
That is called ‘A Hot Tip’. The FBI gets those all the time. If NSA really suspects the individual US Citizen to be an agent of a foreign power, *then* is the time to seek a warrant as the idea of *prosecution* makes *sense*. They can point to a pattern of activity that indicates *something* might be going on.
Where is the Beef? Not scenarios. Not ‘what if…?’. Not *conjecture*.
No Gannon jokes, please.
The funny part about question 10 is that the FISA court has no authority to approve a program. It, like other federal courts, decides cases and controversies. But it should shock no one that Specter labors under the delusion that courts are policy-making bodies. Perhaps Gonzales should walk into the hearing and, invoking Scottish law, declare the case against the Admin. “not proved,” and walk out.