Here is the complete transcript (including Q&A) of Principal Deputy Director of National Intelligence and former Director of the NSA General Michael Hayden, addressing the National Press Club yesterday.
(h/t Bob Owens—who believes the transcript hint that all speculation on the technical nature of the intercepts, by both critics in the press and Congress and pundits defending the program, has been way off base; I’m not so sure, but then, I haven’t done much in the way of speculation over technological capability, beyond a few mentions of automated phone chains and key word databases that trigger intelligence gathering instantly; also worth mentioning—much is being made by legal watchdogs of Hayden’s resistance to the phrase “probable cause” in the fourth amendment as it pertains to FISA requirements as they are currently understood (Hayden insisted on using “reasonable belief” to describe the baseline for action within the mandate of what constitutes a “reasonable search and seizure,” then averred to the AG for the legality of that characterization—so I don’t really see much there there. Nor do I believe that such a suggestion). I find no problem with this for two reasons: a) Hayden is not a lawyer—and the important portion of his statement is that the standard was examined by lawyers for the DoJ and NSA; and b) reasonable belief does, when examined through the prism both of “reasonable expectation of privacy” and the necessity to listen to intercepts from one overseas target to the respondent before probable cause can be established for a FISA warrant, is a peculiarity of the criminal justice paradigm (and pertains to information which may later be usable in court against US citizens; it also redounds to do process for certain searches and seizures that cannot be proven de facto unreasonable); but as has been well established here and elsewhere on a number of occasions, it is perfectly proper for the NSA to monitor foreign intel (defined as having one end of he communication outside of the country) and present the FBI on other law enforcement agencies with summaries, from which they can then work to get their FISA warrants—or, if the situation permits—circumvent that necessity by statutory or constitutional exemption.
(More, from Dave at The Waterglass)
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(My previous posts on the subject are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here, and they contain comprehensive sourcing).
When I read this earlier, (story in the WSJ) Hayden flat out says that had we been fully utilizing our wiretap capabilities, we may have been able to identify some of the 9/11 highjackers beforehand as terrorists.
Quoted thusly- “Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 operatives in the U.S., and we would have identified them as such,”.
Jeff:
Your post is hard to understand. I’d recommend editing it for clarity.
Also, you wrote:
So I’ll ask (again):
Why is it ok (under the AUMF, which, as you’ve argued, is a statutory authorization for domestic electronic surveillance other than through FISA) for the NSA to intercept calls that have one end outside of the US, but not ok for the NSA to intercept calls that have both ends inside the US?
What is the limiting legal principle under which the AUMF authorizes international signals intel to uncover terrorists, but does not authorize purely domestic signals intel to uncover terrorists?
(In other words, I know that NSA, DOJ, and White House say they don’t intercept purely domestic calls, but is there a legal principle that suggests they can’t do it?)
Can someone please try to answer this?
No legal eagle, but the simple answer appears to be that the AUMF touches upon the President’s Article II powers only, which only applies to foreign intelligence, not domestic surveillance.
More than that, Yankee, is that the statutory AUMF CANNOT impinge upon rights possessed by virtue of the Fourth Amendment (it’s a statute and therefore subject to Constitutional limitation).
IANAL, but the difference between listening to calls with one end overseas and purely domestic calls probably has something to do with Fourth Amendment protections.
Jeff
I don’t know if you caught the episode this morning on GMA where Mr. Gibson gave Paul Begala the first round. He stated that the President did break the law and because John Mcain has question on regards to the concept of the “wiretappings”, that this has become a non-partisan issue. Then Bay responded with the truth or substance of the surveilance in which outside calls from known Al Qaeda operatives were being listened to, because the calls were coming into the US, and once again, the Dems, and per her words, are “wimps, when it comes to National Security”. Begala’s response was to state that Mcain was a POW and was tortured for 5 years. And that statement automatically gives cred to Mcain’s concerns? Begala looked pretty much like an asshole…..
Todd,
Begala IS an asshole. That’s why he looks so much like one.
Yankee & Gabriel:
Ok—I have a couple follow up questions.
I suppose this is based upon the distinction made by SCOTUS in the Keith case, because clearly there’s no language actually in Article II that supports this view. But doesn’t this pose a number of potential legal problems? If we found a terrorist’s phone with an American number saved in it, we’d obviously want to listen to all calls emanating from that American number, right? You seem to be saying that the AUMF only authorizes the NSA to listen to calls (sans warrant) that travel back outside the US; but that the NSA would have to go through FISA’s rigorous application procedures, which use a higher burden of proof, if it wanted to listen to a call made by that American number to another American number. Right?
Professor Orin Kerr has suggested, tentatively, that their may be some sort of “border search” exemption for the warrant requirement, but I think it’s a stretch. The Administration, on the other hand, points out that the 4th Amendment only requires that “searches” not be “unreasonable,” and that the program’s surveillance of international communications is “reasonable.” But I’m skeptical that there’s any legal authority for the proposition that one has a lesser expectation of privacy when one makes calls abroad than when one makes calls to another US location. (I’m not saying these arguments couldn’t be made—I’m just saying there’s currently no legal authority for them that I know of.) Futhermore, if a US number is being “targeted” by the NSA program, then there’s no way of knowing beforehand whether the call it’s about to make will be “international” or “domestic.” It would be the height of absurdity if the NSA were forced to hang up on a call made by a terror suspect in Boston simply because he called New York, and not New Dehli, wouldn’t it?
Expectation of privacy exists within the US where the laws are the same for both parties. An international call lacks that certainty and so there is no reasonalble expectation of privacy.
In addition … Currently with a legal wiretap on the local crime boss the FBI can monitor a call to the out of state hitman, alias Lefty Icepick, without also having a warrant on Lefty. The monitored content of that call can be used to get a warrant on Lefty. So what happened to Lefty’s expectation of privacy ???
Communicating with other parties puts 4th amendment rights at risk. If both ends do not have joint expectation of privacy then neither party does.
Wrong.
This information would not be pursued by the NSA at all, though other non-domestic numbers found on that same terrorist’s phone might be. The domestic data would be under the jurisdiction of the FBI, and therefore any investigation would be subject to all applicable domestic surveillance laws.
boris —
Interesting arguments, but I don’t think they hold up. Under a slightly different crim law hypo, if there were an international money laundering scandal, the FBI would need warrant before it could listen in on phone calls made by Co-Conspirator A in NYC to Co-Conspirator B in Beijing, right?
Also, your invocation of some “joint expectation of privacy” has no legal support that I know of. The 4th amendment guards individual rights; not the rights of communicating “pairs.” Plus, in your hypo, the FBI has duly authorized warrants in both the first instance (tap on local crimeboss) and, theoretically, the second instance (any future taps on Lefty’s calls). That is, while Lefty may have an “expectation of privacy” in the initial conversation with crimeboss, the contents of that conversation are not protected by the 4th amendment because the FBI has legal authority to listen to that call, i.e., a warrant.
But certainly you’re not arguing that, once the FBI listens to that call and concludes that Lefty is in on the job, then it can listen to Lefty’s calls henceforth without a properly authorized warrant, right?
That’s the criminal equivalent to what I’m objecting to about the NSA program.
MF, you can go back and look at Orin Kerr’s comments on the border search exception here:
http://volokh.com/archives/
archive_2005_12_18-2005_12_24.shtml#1135029722
In short, the cases that lead to treating purely domestic calls direrently than calls with an international end:
Hernandez sets border searches apart from searches within the country. The usual Fourth amendment rules do not apply.
Ramsey held that international postal mail could be searched under the exception set out in Hernandez.
It has been recognized that digital data (on computer hard drives) is allowed to be searched under the border search exception.
From this, the argument is that international phone communication (like international postal mail) is subject to the border search exception (even though it is digital data on a hard drive) because the Fourth Amendment does not apply.
Also, as Kerr notes, Katz (the case that set up our modern Fourth Amendment protections (freedom from searches when we have a reasonable expectation of privacy) specifically left out of its new standard situations involving national security.
Yank:
So what, exactly, does the NSA program listen to? It can’t just be calls from known, abroad terrorist numbers to (theoretically unknown, or, at least, untargeted) persons in the US, because then FISA wouldn’t apply and there’d be no controversy. It has to target Americans in America in some way. What’s your take?
<objecting to</i>
And the admin claims that further targeting of US parties is done with FISA warrants. The original call between the crime boss and the hitman where there is no warrant on the hitman is the crime equivalent.
Since nobody is clamoring over Lefty’s 4th amendment civil rights, I call BS on that argument.
MF, I think you’ve just hit on what Jeff’s been talking about for weeks. You said:
My question: what makes you think this is not what is happening? Is there some proof that you can point to that the hypo you’ve created isn’t an accurate description of the system?
So MF, if I understand your point correctly, what you’re saying is that surveillance of the initial, al-Qaeda-extra-US-to-now-suspect-person in-US call is probably OK without a FISA warrant (because the al Qaeda person is rightly under surveillance as a foreign enemy), but thereafter, if the NSA/FBI/whoever want to survey the now-suspect-person-in-US’s calls to anybody else, not to seek a FISA warrant is probably not legal. Yes? No?
If I’ve correctly stated your argument, does the Administration’s claims that it has sought FISA warrants in all cases to which FISA warrants would correctly apply have any bearing?
Gabriel:
I’ve acknowledged the border search arguments, but I’m not pursuaded by them.
Let’s take it here, though. What in the Administration’s legal argument (not your view of it) as laid out most fully in the DOJ’s 42-pager, suggests that AUMF/Article II authority to authorize surveillance—which trumps FISA—operates only to the extent that the surveilled calls are international? If there are enemy agents in the US, doesn’t that severely hamstring the Pres in the conduct of the war?
I’m assuming you’ll argue that the Administration’s arguments imply that the President’s AUMF/Article II powers cannot be used to violate the 4th Amendment, itself which applies only to domestic, and not international, calls. Is that your argument?
boris, Gabriel, Jamie:
Wow. Your comments make me think that both sides of this controversy (at least on the blogospheric level) have been arguing in circles for this entire time, and have never agreed on exactly what we are arguing about.
It is my understanding that the FISA program is controversial—and remember, this controversy first erupted within the Administration, DOJ and NSA, and that’s how it got on front page of the NYT—precisely because, in Jamie’s words…
…this is what the NSA has admitted doing.
That is, using a lower evidentiary standard (not “probable cause,” but instead “reasonable belief”), applied by an NSA employee rather than a FISA judge, to target persons inside the US (Americans or not) who the Adminstration reasonably believes are linked to AQ.
If, indeed, my understanding is correct, you guys would admit that this is not legal?
MF, I’m sorry that you are not pursuaded by the border search exception. You are, of course, free to make your own conclusions.
I don’t have any argument to make regarding AUMF/Article 2 power. Nor do I have any knowledge on which to base an opinion of how the SCOTUS would resolve a conflict between Article 2 and the Fourth Amendment.
As I mentioned earlier, I do believe a conflict between AUMF and the Fourth Amendment would be resolved in favor of the Amendment. The point of the “border search argument” is that even if the Fourth Amendment applies in this case, an exception is recognized for cross-border exchanges.
Presumably, should a conflict between Article 2 and the Fourth Amendment be resolved in favor of the Amendment, the “border search argument” would again be invoked to justify the program. On the other hand, if the conflict is resolved in favor of presidential power, the program will be justified under that power (and possibly the AUMF from Congress). Either way, the program is legal.
Is that your argument?
What argument? The adminstration claims that all targeting of US parties is done with warrants. The debate over the international calls is the ONLY thing on the table. If you’re ok with that then what’s your beef? That the legal arguments seem to apply to internal US calls according to your interpretation of them?
Fine. Then come up with a better argument to use instead that doesn’t. Like, THERE’S NO FRAKKIN VIOLATION TO BEGIN WITH !!! In which case your arguing with the wrong group.
Not s’fast, MF: the quote from me that you used was my attempt to rephrase your argument.
MF, Please note, that under the border search exception, the evidentiary standard that you note NSA admits to using does not apply. Nor would I expect that it applies if the program is authorized as a presidential power (possibly with AUMF support).
Again, either way, the program is legal.
NOTE: I do not admit or deny that the NSA has admitted committing illegal acts. I base my answer solely on your contention that the NSA did admit to using a lesser standard.
MF, sorry gotta run now. Please take a look at my last few comments. I’ll be back later to see what you think.
I’ve got to go, too, and I’m sorry I can’t get into this more. But, I did find this quote from Hayden’s press conference linked by Jeff above.
It seems to suggest that the answer to the question I posed in my first post above is that the Administrations has chosen on its own accord—i.e., for pragmatic reaons—rather than because of a limiting legal principle, to restrict surveillance to international, and not domestic, calls.
Here:
Well, pragmatic reasons may be stemming from a number of legal complications that could not even be easily ironed out in blog form, as shown by the dancing to answer this.
Gen Hayden is not a lawyer, and likely also knows nothing about this history that shows he was sent out to lie for the Bush Admin
I voted for Bush. I want him to spy on suspected domestic terrorists. But I want him to do so within the law, and to not lie.
Mona,
We’ve been ridiculing Greenwald for literally weeks now.
Do try to catch up.
I’ve actually read the relevant portions of FISA. The warrantless wiretaps are perfectly legal as long as the procedures are followed.
AG certifies the program, Congressional committees are notified and the pres requests them. If you read the definitions of Citizens AND foreign agent definitions its clear that the taps are legal.
Kevin
AG Gonzales today
Well worth reading.
Seems like the libs, led by our friend Greenwald, are walking into a haymaker. Couldn’t happen to a nicer bunch.
Cheers Jeff.
OHNOES:
Your implication of “legal complications” advances my general point.
The point is, that (a) if you accept the administration’s legal argument that the AUMF, in combination with the President’s Article II powers, authorizes electronic surveillance outside of FISA, then (b) there is no legal principle that prevents the adminstration from intercepting calls (without warrants) from one US location to another US location if it, unilaterally (i.e., without FISA court approval) determines that AQ agents are involved. None at all. If the AUMF authorizes sig intel of AQ—in a war, then that sig intel can’t possibly be limited by the fact that a putative AQ agent in the US is making local calls, rather than calls to Tehran.
I will (re)iterate that most of you who comment here are, in good faith, defending a position that is the most anti-terrorist position you can support. And while there is a legitimate dispute about what the President’s legal leeway to confront terrorist threats should be, there can be no doubt that acceptance of the Administration’s official and public legal position—notwithstanding arguments based on hypothetical technicalities that Jeff et al. have been keen to employ—would, for all intents and purposes, allow the President to operate above the duly enacted and (let’s be honest) constitutional laws of Congress on the basis of some poorly defined, decidedly non-textual, amorphous, and, likely, ever-expanding notion of Article II war powers. However much you (a) trust/personally like/are in political agreement with Bush; (b) hate terrorists; and/or (c) want to prevent successful terrorist attacks, you have to at least acknowledge the (worrisome) ramifications of wholesale adoption of the Administration’s legal position.
That is my position. I’m not sure if I can lay it out more clearly than that.
MF,
Your position is tolerably clear, and has been from the beginning. It is simple: you have started with some ambiguous data and the postulate that George Bush Is Evil, and used that to erect a strawman, which you are belaboring with admirable vigor and a large stick.
The legality, or lack thereof, of the NSA program cannot be analyzed on the basis of a law enforcement paradigm. The program is being utilized and justified under the President’s powers as Commander in Chief, responsible for the defense of the United States. You may pound, pound, pound to your heart’s content against the legalistic, rules-of-evidence violations you perceive without once addressing any real venality or criminality which may or may not exist in the program.
And even from a law enforcement point of view, it isn’t clear any wrongdoing exists. If law enforcement has a warrant to tap A, and A calls B, law enforcement can listen to the conversation despite not having a warrant to tap B. The same is true if B calls A. A new warrant is needed if B calls C—but the calls between A and B may provide the probable cause necessary to issue that warrant.
Think of it this way: the President has a permanent, standing warrant to listen to foreigners’ telephone calls (the “border”). If a call is made between a known or presumed terrorist outside the U.S. and an “American person”, that call can be tapped—and both ends listened to. It is only in the case where the “American person” so involved calls another “American person” that a warrant is indicated, and that only if law enforcement is contemplated. If the only goal is assistance in inquiries, with no indictments or other legal penalties in view, there is no foul. (After all, what’s the punishment for invalid warrantless search? The evidence isn’t admissible in Court. If no court proceeding is contemplated, what penalty is available?) The President has said that FISA warrants were applied for when needed. The need is meager, and has been satisfied.
Well, yeah. The thought of wholesale abrogation of habeas corpus bothers me, too—but Lincoln did it when necessary, and other Presidents will do what they see as necessary when the need arises. It is inherent in the powers of the office. The President of the United States is not a Premier, not a mere party leader chosen to “head a government”. The President is a monarch with powers few Kings had even at the time the Constitution was written. It was the evolution of those powers that resulted in the formal limit of two terms, something I support. The only practical checks we have on the powers of a President are the ballot box and impeachment. That was as true when Clinton was spreading his political enemies’ IRS and FBI files around for the perusal of his hangers-on as it is now. That’s the way it is. Live with it.
At this point, with Bush on his second term and not subject to the ballot box, your only hope is impeachment. Watch out. Remember the principle of jury nullification—thanks to Clinton’s impeachment, it is now the law of the land that the President may lie to Congress if the matter is trivial enough. If an impeachment over wiretapping is not sustained and the President convicted and removed from office, it will forevermore be a Constitutional principle that the President may wiretap who he pleases.
Let it lie. All your choices are bad ones.
Regards,
Ric
Ric:
You’re making a practical argument; i.e., of course the President is going to do what he’s going to do, and the only way he can actually be stopped is via ballot box or impeachment, or defunding (which could be circumvented, theoretically, by pushing money around, and would eventually just get us back to impeachment). And while that may be how the whole checks and balances thing actually works in practice—i.e., at its logical extreme (e.g., A. Johnson impeachment)—it can’t be adopted as an accurate description of the law, the Constitutional separation of powers, or the “legal authority” of an Article II President.
Your system would invite President’s to snub the law whenever he disagreed with it, thus daring Congress to do something about it. It would hamstring the legislative process (i.e., passing or repealing laws so as to actually improve our lives) with one after another of battle royales between Congress and the Executive. When Congress and the President belong to different parties, you’d have endless impeachment battles, hampering the ability of the Executive to do his job, too, of enforcing the law and protecting national security. And when Congress and the President belong to the same party, your system of government would readily invite the President to violate well-established laws (ahem, laws against torture) on the knowledge that Congress may debate and denounce and pass newer, ever tighter laws, but will never get around to actually impeaching you. And it would also invite the President to “remedy” sitatuations in which Congress had passed laws the Prsident does not favor, perhaps over his own veto, by simply authorizing “shadow” or “alternative” “laws” by way of Executive Order (ahem, NSA program) or through mere inaction or counteraction (e.g., A. Johnson, Presidency of, viz. reconstruction).
In other words, you’re advocating a legal basis for one A. Johnson (never-ending one-upsmanship btw President and Congress until successful impeachment or end of term) or G.W. Bush Presidency (morbidly polarizing and controversial because President doesn’t think it’s necessary to follow the laws passed by a Congress controlled by his own party) after another.
I refuse to accept that’s how the system was set up and is supposed to work, and I’m surprised that you seemingly would.
So by rejecting the legal argument on the basis of US to US monitoring which IS NOT HAPPENING without FISA warrants, you would put the county at risk of ANOTHER 911 ??? YOU FRAKKIN BASTARD YOU !!!
Oh, that’s a stretch ? Ok we shouldn’t over exaggerate each others arguments for cheap rhetorical points.
Want to clarify? Monitoring AlQaeda to US would be ok with you if the legal justification was not so broad. Say a minor tweak to FISA to make just that ok, or add specific wording to AUMF or Patriot Act II.
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 come clean.
Yes the Article II with AUMF legal arguments would appear to cover collecting foreign intelligence within the US without warrants.
But why bother? If the international monitoring can be used to acquire FISA warrants once targets in the US have been identified, (the problem with FISA in the first place) working within FISA is not problematic. My take is the Art II coverage is there but responsible executive preocedure is only invoke Art II where there is A CONFLICT between statute and constitutional power. IOW requiring warrants for international calls puts the US at risk.
There isn’t that conflict with US to US surveillance. It’s a different ball game. PLUS using FISA makes it reasonable to utilize the criminal justice system to deal with in country threats.
But I suppose that’s just all too pragmatic.