The New York Times reports on Judge Walker’s new decision in Al-Haramain Islamic Foundation v. Obama with the following opening:
A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal, rejecting the Obama administration’s effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush.In a 45-page opinion, Judge Vaughn R. Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon, and of two lawyers representing it in 2004. Declaring that the plaintiffs had been “subjected to unlawful surveillance,” the judge said the government was liable to pay them damages.
The ruling delivered a blow to the Bush administration’s claims that its surveillance program, which Mr. Bush secretly authorized shortly after the terrorist attacks of Sept. 11, 2001, was lawful. Under the program, the National Security Agency monitored Americans’ international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.
I’ve seen some similar reports online, so I thought I would register a somewhat technical objection to this characterization of the opinion. The Obama Administration wasn’t arguing that the surveillance program was lawful. As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim.
As I said, this is sort of a technical objection: It’s quite right that the plaintiffs prevailed in their legal claim that they were illegally subject to surveillance. And as I have written many times before, I happen to agree that the Bush Administration’s arguments were quite weak. But the opinion isn’t quite what the Times is reporting: The decision today wasn’t actually about the lawfulness of the warrantless surveillance program.
To be fair, if you read on in the Times story, it later adds some caveats that recognize the problem. It states:
Judge Walker did not directly address the legal arguments made by the Bush administration in defense of the N.S.A. program after The New York Times disclosed its existence in December 2005: that the president’s wartime powers enabled him to override the FISA statute. But lawyers for Al Haramain were quick to argue that the ruling undermined the legal underpinnings of the war against terrorism.One of them, Jon Eisenberg, said Judge Walker’s ruling was an “implicit repudiation of the Bush-Cheney theory of executive power.”
“Judge Walker is saying that FISA and federal statutes like it are not optional,” Mr. Eisenberg said. “The president, just like any other citizen of the United States, is bound by the law. Obeying Congressional legislation shouldn’t be optional with the president of the U.S.”
I greatly appreciate the Times‘ acknowledgment that this is the lawyer’s spin. And I certainly recognize the practical difficulty of accurately characterizing a complicated and technical 45-page opinion within minutes after the opinion is released. At the same time, I think it’s pretty clear that the lawyer’s spin isn’t accurate here. DOJ wasn’t arguing that FISA was not binding. That was the Bush Administration’s position in the past, but not the position the Obama Administration was taking.
Rather, the part about FISA not being “optional” is from a part of the opinion in which Judge Walker was contemplating how a strong states secrets privilege would weaken the Executive’s incentive to follow the FISA statute. If the government knows it can’t be sued for breaking the law, Walker reasoned, it can essentially treat the statute as optional. (See page 27 of the slip opinion). Judge Walker didn’t want to interpret the states secrets privilege in a way that would let an Executive branch do that, so he interpreted the privilege narrowly to help the civil lawsuit parts of FISA provide a stronger incentive to follow the law.
Put another way, Judge Walker rejected a broad view of the states secrets privilege because he though it would not give the government enough of an incentive to follow the law. He did not reject the position that the Government was free to ignore the law, as that was not a position either side was arguing in the case.
Allan says:
When one is blogging about something one has spoken on the radio about, perhaps a link is in order?
Even if it just a two sentence quote that includes the words “fireworks” and “whimper”
April 1, 2010, 12:59 amJohnF says:
You are being too charitable to the Times. The lead reporter, Mr. Savage, is well versed in the law, having a masters from Yale Law for starters, and easily could have read the decision before trying to mislead his readers.
A bio is here: http://www.charliesavage.com/bio.htm
I would make the customary MSM/NYT trashy remark here, but, as we lawyers say, res ipsa loquitur.
April 1, 2010, 1:08 amjellis58 says:
Whats with Judge Vaughn Walker getting all the high media profile cases? Isnt he also doing the same sex marriage equal protection case? He has got to be the most paid attention to federal district court judge in the county this year.
April 1, 2010, 1:12 amneimoller says:
So, has the merry band of seven now become the Al Qaeda 8?
April 1, 2010, 1:42 amMidlantan says:
Orin – A similar theme I’ve seen in stories on the case is that Walker rejected the administration’s argument that the state secrets privilege “trumps” FISA. The ubiquity of this phrasing (in a couple different print media stories, commenting blog posts, and two TV news/pundit stories this evening) suggests that it may originally have been used in an early AP/Reuters/wire story about it. Unfortunately, while this framing of the issue may actually be technically correct because, as you point out, Walker didn’t really rule on the merits of the FISA and related claims, it makes it sound as though Al-Haramain somehow turned on this issue (state secrets vs. FISA) from the beginning, rather than the (Bush) administration’s arguments that warrantless surveillance was necessary/proper/not illegal (which they never really made in this case because they staked their claim on privilege issues) vs. FISA and associated surveillance laws.
I’m thinking that this is actually a win of sorts — or at least not much of a loss — for the government. Sure, they may have to pay some money, but neither administration ever had to fully describe its conduct or defend the conduct on the merits, so the Bush administration officials involved can still maintain whatever it is they would have maintained about how the program was indispensable, valuable, etc; the Obama administration officials have done their duty to defend the state secrets privilege, and even though this opinion suggests it’s more limited than they argued, they can continue to withhold info without serious consequences.
Perhaps that’s too cynical a reading. But I look forward to a future post in which you explain why this take is all wrong. ;->
April 1, 2010, 2:25 amTatil says:
I’d say “close enough”. :) It is a newspaper after all.
April 1, 2010, 3:20 amWilliam Wallace says:
So much for the media claim that the homosexual judge Walker is some kind of conservative.
April 1, 2010, 6:55 amcboldt says:
– the Obama administration officials have done their duty to defend the state secrets privilege, and even though this opinion suggests it’s more limited than they argued, they can continue to withhold info without serious consequences. –
April 1, 2010, 7:05 amAccording to this case, the limitation on the power of state secret is the ability of the government to keep a particular secret. Al Haramain obtained standing via non-classified public disclosures by the government. But for those disclosures (in essence, the government “divulged the secret”), al Haramain would have been dismissed for want of being able to show government surveillance.
Once the government divulges what it had been keeping secret, the onus shifts to the government to show the court (an in camera showing is sufficient, under FISA) its justification for undertaking surveillance. If the government does not produce that evidence, the plaintiff wins.
Howard Gilbert says:
One issue that I don’t see covered is that Congress “clarified” in subsequent legislation the definition of electronic surveillance in FISA to make it clear that no warrant was required if the target of the surveillance was a party to the conversation believed to be associated with al Qaeda who was outside the US. To require a warrant, the Foundation had to be the target of the surveillance and not the other party. The evidence presented may indicate that communications of the Foundation were intercepted, but there does not appear to be evidence which party was the target.
The judge is wrong that once evidence of an intercept is established, the only defense is to produce a warrant. It is not clear if the government argued that the identity of the target was important and that this could not be determined from the non-classified information and access to the classified information would disclose state secrets. However, in those cases where a specific conversation involving two parties could reasonably be found to have been intercepted, then the additional disclosure of which of the two parties was the target is not much of a secret.
April 1, 2010, 8:29 amOrenWithAnE says:
This is a charitable view of the DOJ, then.
By defaulting on the claim that the monitoring was lawful (by refusing to argue that it was lawful) hasn’t the DOJ effectively conceded that it was unlawful? If a party to a suit fails to argue a legal theory, it’s usually understood that they concede it. Walker didn’t rule that the monitoring was unlawful, he accepted it (as he had to) form the DOJs concession — there was no ruling because there was no dispute over the matter.
April 1, 2010, 9:00 amTweets that mention The Volokh Conspiracy » Blog Archive » What Al-Haramain Says, And What It Doesn’t Say -- Topsy.com says:
[...] This post was mentioned on Twitter by Healthcare Bill. Healthcare Bill said: Blog Post What Al-Haramain Says, And What It Doesn’t Say http://bit.ly/aovPPW [...]
April 1, 2010, 9:41 amt nims says:
That last paragraph is confusing. Seems to me that “the reject[ion]of the position that the Govt was free to ignore [FISA]” is implicit in the rejection of an interpretation of state secrets that would incentivize the executive to ignore FISA.
April 1, 2010, 9:42 amneimoller says:
so, conservatives are for arbitrary expansion of government power then? and homosexuals – which i am sure is very relevant to this discussion – are not allowed into conservative circles without tests of loyalty?
April 1, 2010, 10:17 amAnti-Terrorism and US Courts | Crossroads Arabia says:
[...] An interesting sidelight to the issue is this piece from Volokh Conspiracy. In it law professor Orin Kerr is commenting on a report in The New York Times that is essentially similar to the Associated Press story which The Post ran. What Al-Haramain Says, And What It Doesn’t Say [...]
April 1, 2010, 10:19 amSteve says:
I disagree with the technical objection. If a law is challenged, and the government declines to argue that it’s lawful, the result is a judgment on the merits. It’s not like the question of the statute’s lawfulness remains open just because the government concedes the point.
April 1, 2010, 10:42 amnone says:
‘MIDLANTAN’ said:
LOL – UNTIL THE 9th CIRCUIT UPHOLDS AND SCOTUS GRANTS CERT! Then we’ll hear more about the case on the merits. Which is awesome. Maybe we can even get the undoubtedly lulzy OLC opinion Yoo wrote on this issue.
I also can’t wait to see Roberts contort himself into finding a lack of standing here.
The truth will out my friend. Your optimism that we’ve exhausted the public scrutiny of this issue (“Nothing to see here, move on”) is hilarious. There will be more revelations about what was done, thru investigative reporting and FOIA requests going forward. Maybe we’ll find out if that whistleblower was telling the truth when he said the Bush admin targeted American journalists in purely domestic operations (contra the “official” story, given under oath in Congressional testimony, about only communications involving “one party outside US” being at issue).
Church Committee REDUX.
Please appeal.
Please.
April 1, 2010, 10:46 amFrancis says:
Did the plaintiffs successfully pull a spy trap on the feds? It sure seems that way. In the opinion, there’s a somewhat elliptical discussion about a series of conversations between the attorney plaintiffs and individuals in Saudi Arabia in which OBL’s name is used, and the feds later refer to these conversations (and the use of OBL’s name) in support of their designation of the charity as a terrorist organization.
Shades of the US breaking Japanese codes and using a spy trap to figure out that the June 1944 attack was aimed at Midway.
April 1, 2010, 10:47 amA.L. says:
Orin, I think you’re being a little hyper-technical here. First, I think that the arguments the Bush admininstration originally put forth to justify its warrantless surveillance program (that the president has the “inherent authority” to disregard FISA or that the AUMF trumps FISA) are implicit rejected in several parts of this opinion. Second, as I suspect you concur, the reason the government didn’t even try to defend the legal merits of the program itself is because those arguments are frivilous. Indeed, they were largely rejected (belatedly) by even Bush’s DOJ, which is why FISA had to be amended. The contention that Bush’s program was legal under the then-existing version of FISA is just not defensible.
April 1, 2010, 10:54 amCan President Bush Or President Obama Hear Us Now? « Around The Sphere says:
[...] Orin Kerr: The Obama Administration wasn’t arguing that the surveillance program was lawful. As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim. [...]
April 1, 2010, 10:57 amLarry Reilly says:
I think A.L. is spot on.
April 1, 2010, 11:46 amProfessor Kerr, would you rebut in detail the detailed calling out of yourself on this by Glenn Greenwald? Just the facts.
http://www.salon.com/news/opinion/glenn_greenwald/2010/04/01/nsa/index.html
What really should delight Bush apologists is that the Obama administration is so fearful of permitting any criminal investigation of high-level members of the Bush administration that its DOJ lawyers morphed into contortionists, for which the judge has called them out. It’s not like anyone was fellated by an intern or anything.
Jon Chinn says:
You sir, are so wrong it is not funny. If this is the quality of your work, your students should sue you for malpractice.
More apologia for illegal activity from a discredited neo-con and Bushie.
Three judges have ruled you are wrong.
April 1, 2010, 12:07 pmjerry says:
Where else but the law can someone be required to defend an argument, pro-actively decide NOT to defend that argument but to attack the judge saying he has no right to judge the argument, have the judge decide against him, and then have Orin Kerr agree and say, the argument wasn’t actually decided.
Oh, yeah, the Black Knight Scene.
April 1, 2010, 12:23 pmzuch says:
Prof. Kerr:
While technically you’re right, the opposing view that the “state secrets” ‘privilege’ can be used to hide from responsibility for a multitude of sins (see, e.g., the Reynolds case itself) is essentially that FISA is not “binding”. If the gummint can choose to ignore the law (as they did here) and then decide not to allow any legal action to stop them, then the law is effectively dead (after all, who but the gummint was the law intended to proscribe the conduct of?).
Cheers,
April 1, 2010, 12:25 pmSoronel Haetir says:
Wow, somebody had better check on the residents of Hell, I agree with Zuch.
April 1, 2010, 12:28 pmnone says:
Gonna have to disagree with you there. I don’t share Kerr’s policy preferences, but the guy ain’t no partisan hack.
April 1, 2010, 12:33 pmjosh says:
Can I be the lone librul voice telling the Greenwald followers to tone it the F down? Seriously, in what mock trial seminar, law school class or litigation experience did you people learn that the best way to persuade someone of your argument is by attacking them personally? (Yes, you, John Chinn).
Perhaps the issue is cut-and-dried and Prof. Kerr is just wrong. I can’t say because I honestly haven’t followed the merits that closely. What I have followed seems to indicate that the Bush practices in some cases (phone surveillance) were illegal, and in others (depending on facts still not public) may have been illegal.
But, in any event, Kerr has proven one of the more intellectually honest posters here, even when his posts lean far more conservative than I would like. But, it seems to me, calling someone with whom you disagree “ignorant,” an “apologist,” etc. only serves to show the lack of merit in your argument. It may be a valid technique with the likes of other conservatives who show no level of intellectual honesty. But for those who do, we libruls should approach the debate a little more civilly, I think.
April 1, 2010, 12:36 pmA little more comes out: The NSA eavesdropping program was illegal, pure and simple « Later On says:
[...] why I find it darkly amusing that, today, the same Orin Kerr is solemnly lecturing The New York Times that Judge Walker here did not consider the merits of the claims about the program’s legality [...]
April 1, 2010, 12:39 pmOrin Kerr says:
Josh:
To be fair, Josh, I doubt the Greenwald readers who are finding their way here for the first time have any sort of legal background. I also doubt they realize that I have long agreed the program was illegal, so I gather they see themselves as “speaking truth to power” on that point. That’s my guess, at least.
April 1, 2010, 12:52 pmbenjoya says:
conservatives are for arbitrary expansion of government power then?
by all appearances, yes. how else to explain the sympathy for obama’s DOJ?
April 1, 2010, 12:57 pmbenjoya says:
from the decision:
“Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the [State Secrets Privilege] to evade FISA, a statute enacted specifically to rein in and create a judicial check for the executive branch abuses of surveillance authority.”
like most of the greenwaldian rabble, IANAL, but by dismissing this argument, isn’t the court declaring the program illegal? IIRC, FISA is supposed to be the exclusive means to wiretap americans.
April 1, 2010, 1:04 pmPLR says:
I’m not here for the first time.
Is it your view that Greenwald is so far out of bounds in suggesting that your view of Judge Walker is different from your view of Judge Taylor that no explanation is necessary?
Regardless of his past comments in your direction and whether they were accurate, I’d be interested in a response.
April 1, 2010, 1:17 pmOrin Kerr says:
PLR,
Yes, that is correct.
April 1, 2010, 1:23 pmOrin Kerr says:
like most of the greenwaldian rabble, IANAL, but by dismissing this argument, isn’t the court declaring the program illegal?
Ben, not quite: The last 2 paragraphs of my post addresses this.
April 1, 2010, 1:24 pmOrenWithAnE says:
This is true, the DOJ can revisit that argument in a later case (unlikely, perhaps).
There is this other branch called Congress where testimony is taken under oath and the SSD only applies sometimes.
The TSP (or whatever you want to call it) was primarily an affront to Congress, after all.
April 1, 2010, 1:33 pmcboldt says:
Haramain: The government surveilled me without a warrant. Here is my evidence that I was surveilled.
April 1, 2010, 1:35 pmCourt: The government says your evidence is a state secret, and we agree. Since you can’t show you were surveilled, you can’t sue for having been surveilled.
Haramain: The government surveilled me without a warrant. Here is different evidence, it’s unclassified material of the government describing what the government did.
Court [to the government]: Did you obtain a warrant or lodge the proper FISA paperwork?
Government: We aren’t going to say. We think Haramain’s evidence doesn’t prove surveillance, and it certainly doesn’t (and can’t) prove absence of FISA paperwork.
Court: The Court is not persuaded by the government’s analysis of the evidence pertaining to the occurrence of surveillance. Further, since the government won’t share its FISA paperwork with the Court (ex parte and in camera), the Court deems that the government did not prepare the paperwork required under FISA. Statutory FISA judgment for the plaintiff.
Howard Gilbert says:
The key to FISA is the definition of the term “electronic surveillance”. Originally FISA defined the term to include international communication where the target of the investigation was in the US or, in the case that the target was outside the US, where the communication was intercepted at a point inside the US. Congress later “clarified” (or if you prefer retroactively amended the definition) to exclude international communication where the target was outside the US no matter where the communication was intercepted.
The disclosed Bush program (the TSP) may have only involved targets outside the US, and because the exact location of the intercept was not disclosed but is suspected to be in the US, it might have required a warrant based on the original definition. If so, the change in the law retroactively legalized it. Currently, you cannot claim an intercept was illegal unless you can prove that the target was the individual in the US.
It appears in the current case that this question was not raised and therefore is not addressed by the Judge’s decision. Thus the program might have been legal, but was not defended by the government in this case. That may have been because disclosing the identity of targets is still regarded as a violation of intelligence secrecy. In a civil case the government can choose to remain silent, but no crime can be even charged unless this matter is conclusively proven.
If one insists on talking about Judge Taylor, her argument runs something like this: Although National Security communications intercepts did not require a warrant before FISA, FISA created this requirement and added a procedure to obtain the warrant. In modern Fourth Amendment jurisprudence, a warrantless search is presumptively unconstitutional when there is an opportunity to obtain a warrant. Therefore, once FISA created the opportunity to get a warrant, warrantless National Security searches that were previously legal became unconstitutional.
Judge Taylor never explained how passing a statute somehow amended the Constitution. The problem with her logic is that the warrant created by FISA in the 1970s is not the warrant mentioned by the Fourth Amendment in the 1780s. Like a lot of lawyers, she is able to do word association but is not good at logical analysis. Of course, her ruling was overturned on standing ground, so the higher court never got to address the implied logical paradox of laws supposedly changing the constitution.
April 1, 2010, 1:57 pmSteve says:
This is true, the DOJ can revisit that argument in a later case (unlikely, perhaps).
I don’t know that I agree that they can revisit it once they’ve conceded it. Wouldn’t it be res judicata?
April 1, 2010, 2:19 pmjosh says:
PLR (and others)
Discussion on the merits is fine, but Greenwald goes way beyond this, and what pisses me off is that he and I are most generally on the same side! I want persuade. I want to win! I don’t find it to be a winning strategy to attack your (ideological) opponents by repeatedly affixing adjectives to their names and thus impugning their motives.
There are times for that I suppose, when your (ideological) opponent has proven so inflexible that reasoned argument is fruitless. There are posters on this site even who I think that applies to (i.e., certain folks who never have comments). But even in that case, the correct outcome, I think, is to leave the battlefield altogether because there’s no point in engaging in the (unreasonable) argument. If I think X is a partisan hack, his partisanship (ism?) is going to be evidenced on its faced, not by me affixing adjective to his name.
The point is, does Greenwald want to win, or does he want to call someone a name?
April 1, 2010, 2:20 pmLarry Reilly says:
Josh, how about just looking at the substance of what Glenn Greenwald wrote and simply set aside anything he added that you might consider ad hominem?
I gather from the pithy response above to PLR — “Yes, that is correct” — that Prof. Kerr beleives Greenwald is wholly wrong on the outcome based on the facts and the law.
April 1, 2010, 2:53 pmzuch says:
The problem here is that the evidence was turned over (inadvertently) to the plaintiffs. They were forced to return it and to “forget” (legally) that they’d ever seen such a thing. That’s the dishonesty inherent in the gummint position that the case would reveal “state secrets”.
Cheers,
April 1, 2010, 2:58 pmJoseph Slater says:
I don’t know enough about the substance to have an intelligent opinion, but as to style in general and OK in particular, I agree with Josh. And I’m on the same “side,” politically, as Josh.
April 1, 2010, 3:11 pmzuch says:
Thanks for the compliment (as it is), but why would you assume that everything that I say on a legal blog should be diametrically opposed to your views? It is sad to discover that my insidious “reverse psychology” ploys won’t work for all participants here; maybe I’ll have to start using actual reasoning…. ;-)
Cheers,
April 1, 2010, 3:21 pmcboldt says:
– The problem here is that the evidence was turned over (inadvertently) to the plaintiffs. They were forced to return it and to “forget” (legally) that they’d ever seen such a thing. –
April 1, 2010, 3:34 pmYes, that’s the first two lines of the summary: “We have evidence.” “You can’t use that evidence, it’s state secret.”
This case turns on the government’s ability to keep a secret. If the government hadn’t put independent evidence (of surveillance) out, then the case is back to square one – SSP trumps FISA, by creating lack of standing.
And this case might end up there if the Circuit disagrees with Walker’s take on the independent evidence of surveillance.
zuch says:
They can in fact assert the same or the even the opposite later even had they asserted the legality here and it had been rejected (within the far-reaching bounds of Rule 11, of course). There is no rule that says they have to be consistent from case to case in their arguments, nor forbidding them from pushing their previous views again, or even contrary ones, in a different venue. They would have to argue that there was a good faith basis for overturning any previous contrary opinion, but that’s not hard to find for an enterprising lawyer.
It is true that, due to a lack of dispute on the “legality” question, there’s not much discussion of the [lack of] argument on this. That this merits little space in the opinion doesn’t mean there is no holding there, though. This holding can subsequently be disputed in a different case, but that’s true of any holding. It may be easier to do so when specific arguments haven’t been shot down by a judge and are unlikely to be persuasive to the next, but lawyers are permitted a fair amount of flexibility in their legal positions (which is as it should be, probably, or nothing would ever change).
Cheers,
April 1, 2010, 3:39 pmAnonsters says:
Setting everything else aside, it’s pretty clear that Walker was pissed off at how the government litigated this case. They repeatedly ignored court orders issued by him, made the same arguments over and over again, even after Walker had rejected them, etc. Antagonizing the judge doesn’t seem like the wisest course they could’ve chosen.
April 1, 2010, 3:40 pmOrin Kerr says:
I gather from the pithy response above to PLR — “Yes, that is correct” — that Prof. Kerr beleives Greenwald is wholly wrong on the outcome based on the facts and the law.
April 1, 2010, 3:44 pmThat is incorrect.
Anonsters says:
The thing I don’t understand about the original post is its characterization of what Walker was doing in this opinion. Several times O.K. talks about Walker “interpret[ing]” the state secrets privilege. But this decision isn’t really about the SSP at all, except to the extent that Walker repeats what he had previously held: that FISA preempts the SSP. Thus, the government can’t use the SSP to shield whether they complied with or violated FISA. But that just follows from the holding that FISA preempts the SSP, not from a broad or narrow construction of the SSP itself.
Someone explain.
April 1, 2010, 4:06 pmStephen Green says:
I’m old enough to remember when conservatives in this country believed in limiting the power of the Federal Government.
Oh, wait a minute, that’s the current tea-party mantra, isn’t it?
April 1, 2010, 4:43 pmOrenWithAnE says:
NH v. Maine, anyone?
April 1, 2010, 5:28 pmLarry Reilly says:
That was easy.
April 1, 2010, 8:31 pmThe Criminal NSA Eavesdropping Program | Amauta says:
[...] why I find it darkly amusing that, today, the same Orin Kerr is solemnly lecturing The New York Times that Judge Walker here did not consider the merits of the claims about the program’s legality [...]
April 2, 2010, 12:31 amfalse seriousness says:
I’m a lawyer, and I think Kerr is a classic case of someone floundering.
He’s not remotely persuasive, that’s for sure. I believe he’s afraid of the ramifications of where intellectual honesty takes him, so he’s futzing around on the margins.
Greenwald is of course right.
April 2, 2010, 12:10 pmnone says:
well this whole argument strikes me as soon-to-be moot anyway. more will be said about this by reviewing courts hopefully. and hopefully the Times’ investigative desk will get off their asses and feed new, contextually important facts to the legal debate.
glen greenwald is little bitch, always having a conniption about some narrow point. i hope he gets the help he needs.
April 2, 2010, 4:50 pmHoward Gilbert says:
This judge simply did not understand FISA. From the decision:
What he calls a “quibble” is the core question of whether the intercept is covered by FISA at all. If the target of the intercept is not in the US, then the intercept is not covered by FISA as it was amended. If the intercept did not occur in the US, then it was not covered by FISA as it was originally written. The judge misinterprets this as a question about whether the people in the US were aggrieved persons, when it is an essential question of fact that must be determined in order to prove the activity was illegal in the first place.
The judge cites the defense argument while clearly not understanding the significance of it:
The judge then goes on to dismiss the the defense arguments that the required elements of the law have not been proved as “nitpicking”
Again he does not appear to understand the text of FISA. The claim that an intercept may be legal under FISA does not require that a warrant be obtained. It can be legal because it does not meet the definition of “electronic surveillance” that determines which intercepts require a warrant. The judge does not understand that and therefore misinterprets the claim that the intercept was allowed by FISA as an unsubstantiated claim that a warrant was obtained.
It may be that government lawyers did a poor job in their legal argument of pointing out to the judge what the law actually says and what elements have to be established in order to find that an activity requires a FISA warrant. While they should have made the case clearly enough that that judge would not make these mistakes, in the end it is the job of the judge to understand the law as written and not depend on the lawyers to explain it to him.
April 2, 2010, 5:24 pmOrenWithAnE says:
The government provided no evidence of either of these claims.
That’s not to say they aren’t true, perhaps they are. If they are, then it behooves the DOJ to assert and prove them.
April 2, 2010, 7:01 pmHoward Gilbert says:
This I think precisely defines the legal question.
It appears that the judge believes that the plaintiff has to present evidence that he has been the subject of surveillance. If that is proved, then according to the judge it is then the burden of the government, based on cited cases, to submit evidence that the surveillance is illegal. In criminal cases he is almost certainly right.
The alternative is that the plaintiff in a National Security case has to establish that he as been the subject of illegal surveillance. The government argument was that this burden had not been met.
Now in an ordinary Fourth Amendment case, a warrantless search is regarded as presumptively unconstitutional unless the government can claim one of the exceptions. However, FISA only covers communications intercepts where the target of the intercept is in the US. So if you establish that a particular conversation was intercepted, and one party is in the US and the other is in Saudi Arabia (as is the case here), then the question before us is whether the plaintiff must present evidence that the target was the US person (which is a practical impossibility given secrecy) or whether the government is forced to declare that the target of the surveillance was the Saudi, even though the long standing position of all administrations has been to neither confirm nor deny any claims about intelligence operations.
This is a conflict between the normal court procedure in criminal cases and the universal executive stance on Intelligence matters. In the special case of a civil suit about intelligence, it is not clear which should control. This is the question that should go to the Circuit and maybe to the Supreme Court.
April 2, 2010, 7:46 pmfalse seriousness says:
Dude, the judge KNOWS that these lawyers were surveilled.
Furthermore, you sound like a total pretender. FISA is not that complicated. It actually covered “US persons” and provided a pretty clear definition – one that you don’t even describe correctly.
Some people need to actually read it rather than talk loudly and pretend they’ve read it.
April 3, 2010, 1:14 amOrenWithAnE says:
Publicly, yes. I don’t see any problem with submitting evidence in camera to that end though.
April 3, 2010, 7:12 amHoward Gilbert says:
The two parts of the original definition in FISA that matter are:
Under FISA, any intercept that did not fall under the definition (when the target of the communication was the overseas person and the conversation was intercepted outside the US) is defined to not be “electronic surveillance” under the act, even though it is clearly electronic surveillance in plain English, and therefore it is not covered by FISA and does not require a warrant.
This meant that the NSA could not legally acquire a conversation between an untargeted US person and a targeted Saudi if the location of the intercept was the East Coast international switching station in New Jersey , but could intercept it if the conversation was acquired in the fiber optic cable 12 miles off the NJ coast. The NYT and Bush critics assumed that the point of acquisition was the US switching stations that route international calls, but it would have been just as easy for the NSA to wait and do the intercept legally outside US territory.
In any event, this issue was eliminated by the Protect America Act:
If the definition had been so clear, then Congress in 2007 would not have felt it important to “clarify” it. This change to the definition eliminates the 12 mile problem and (retroactively) permits the intercept of communications where the target is not in the US even if the point of intercept is in the US. This had the effect of making the disclosed TSP legal, even if the speculation of the NYT was originally correct.
April 3, 2010, 8:18 amHoward Gilbert says:
It is an unalterable policy of every administration going back to FDR to not discuss or comment on speculation about the sources and methods of intelligence. Not with the press, not with lawyers, not with judges who have no need to know. If the consequence is that some stupid judge gives a few thousand dollars to support a terrorist organization, well that is a small matter compared to the defense of the US.
So getting back to the original post, just because the current administration follows the universal policy of every administration in recent history and does not offer evidence to prove that a program is legal, and a judge enters a default judgment against the government for not offering evidence he has no right to demand, this does not mean that there is even a shred of evidence to prove that the program was illegal. There were two parties to the conversations, but who was the target of the intercept? We simply do not know. The judge does not know. Probably the government lawyers arguing the case do not know, because they have no “need to know”. All they can do is point out that the matter has not been resolved, and then the judge enters whatever decision he feels appropriate under the law. Then the Circuit reverses him, or not. The point is the decision is about who has the burden of proof in this case, not about whether the underlying program was legal or not.
As for the extremists, while there may be an issue about burden of proof in a civil case, there is no doubt about the burden if you want to accuse anyone of a crime. So those who throw around criminal charges don’t understand anything about the law.
April 3, 2010, 9:06 amAnderson says:
Howard, (1) this was a Rule 56 summary judgment, not a Rule 55 default judgment; (2) the district court held as a matter of law that Plaintiffs had met their burden of proof, shifting the burden to the feds to show a FISA warrant was obtained; and (3) judging from the decision, the feds refused to say whether a warrant was had (which the court properly took as a “no”), and didn’t argue a warrant wasn’t necessary.
Hence, the plaintiffs (1) met their burden of production and (2) met their burden of proof, so that judgment was entered for them.
You can’t say “our program is lawful,” get challenged on it, refuse to defend the program in court, and then, when you lose, say, “ah, but the merits went unaddressed!”
… I think Prof. Kerr would have done better to say “the Bush-era arguments that FISA could be ignored were not directly addressed” rather than “the court did not hold the program was unlawful.”
April 3, 2010, 12:11 pmHoward Gilbert says:
Anderson, consider selected sections from the decision all showing the same mistake:
If you read the entire decision, you find Judge Walker concentrates almost exclusively on the question of standing which was the key question in the prior litigation. He addresses the section 1810 definition of “aggrieved person”.
He never mentions section 1801 where “electronic surveillance” is defined as a term. Nor could this just be a misstatement, because as I cite above you cannot discuss the definition of “electronic surveillance” without discussing the changes made by the Protect America Act which went into and then expired out of section 1805 between the time of the alleged intercept and this decision. It is simply not possible to confront the question legally without a long discussion about what happened with those paragraphs.
No administration has or ever will comment on, confirm, or deny a speculation about the sources and methods of intelligence. I am not a fan of State Secrets, but if the court can insist that the government disclose sources and methods to defend itself against any civil suit filed by any private party, then I think you have made a case for the necessity of some sort of State Secrets defense.
However, while in this case the plaintiff made a prima facie case that under section 1810 they could be an aggrieved party if electronic surveillance occurred, they only alleged that electronic surveillance as defined in section 1801 might have occurred. At that point they did not actually meet their burden. The judge was wrong because he did not understand the rather convoluted statutory definition of what should have been a simple term. The government has no obligation to prove that the program was lawful simply because a private citizen alleges otherwise. I would even suggest that the government has no obligation to state why the program was lawful, but need only point out that the plaintiff had not established that it wasn’t. If the court will not allow such a position, then the sledge hammer of State Secret is all that is left to keep the courts from an unconstitutional intrusion into Article II matters.
April 3, 2010, 1:38 pmAnderson says:
Howard, their burden was to argue it was more likely than not that electronic surveillance occurred. The feds did not offer any reason to doubt their assertion.
Possibly the feds did not want to dispute whether ES occurred because they did not want to get into exactly what kind of ES they were performing. Be that as it may, if the plaintiffs meet their burden — which as you know is merely a preponderance — and the feds offer zilch, then under Liberty Lobby etc., the plaintiffs are entitled to SJ.
April 3, 2010, 3:07 pmVanversive.net: Break the chains that bind us » Archive » The criminal NSA eavesdropping program says:
[...] why I find it darkly amusing that, today, the same Orin Kerr is solemnly lecturing The New York Times that Judge Walker here did not consider the merits of the claims about the program’s legality [...]
April 3, 2010, 4:16 pmOrenWithAnE says:
The consequence as measured against revealing operational intelligence data that was stale years ago (and is beyond worthless now) to a Federal Court in camera? Fine, so be it — it’s Holder’s DOJ and he can do as he please. What he cannot do is prevent the Courts (or the public) from drawing rational inferences from his refusal to defend the surveillance — to wit, that it was unauthorized by law.
Supposing arguendo that the surveillance was, in fact, unlawful, What other evidence could AH possibly bring? They cannot prove the absence of a FISC warrant, nor can they establish where the intercept took place or who was targeted.
Your procedural stance requires the impossible of the plaintiff.
April 3, 2010, 5:57 pmHoward Gilbert says:
“Your procedural stance requires the impossible of the plaintiff.”
A few posts ago I stated that there are only two possibilities, each with unacceptable consequences. Either the government is forced to compromise vital US intelligence secrets in order to defend itself against a private civil charge, or else the plaintiff is confronted with an impossible burden of proof. There is no acceptable solution, so we are forced to choose.
The NSA is composed of very smart people who, if they can crack the most secure Soviet communications systems, can certainly read the basic law that governs their operation and realize its obvious loopholes. Even before the Protect America Act, one obvious way to intercept calls to Saudi targets legally is to exploit the special relationship. Let the calls leave the US following their normal route, then ask GCHQ to intercept them in Cornwall, England and send them back to the US. The communication is acquired outside the US and therefore is not “electronic surveillance” under FISA 1801(b). So the effect of the law is to require the US to involve a second intelligence service. However, we would have to agree to never disclose the involvement of GCHQ to anyone, not even to judges in camera.
At this point the NSA in order to comply with the law would have created a situation where the AG is not able to explain why the program is being done legally. The mechanism that made it legal in turn made it non-disclosable. Not to anyone, for any reason, under any circumstances. It is absolute, not subject to any discretion, not a matter for negotiation. If we go back on the deal, no foreign intelligence service will ever trust us again.
Compared to this, I see no absolute right of anyone to sue anyone any time for anything and force them to provide our nations most carefully guarded secrets just so they can have their day in court. That right does not exist. The public does not have a right to know. The government does not have an obligation to disclose.
I disagree with the idea that the government can simply claim State Secret and get a case dismissed. The plaintiff should always be given an opportunity to, as was done in this case, prove the elements of their claim with public information. They came pretty close in this case, but if it turns out to be impossible to prove the case with just public information, that is essentially what the government has been arguing all along, so it shouldn’t surprise anyone.
If there was no way to intercept the communications legally, then the case would be easy to make. However, since there were literally dozens of obvious ways for the NSA to conduct the intercept legally, there is no particular reason why the government should be forced to disclose exactly which legal means was used.
April 3, 2010, 7:33 pmDrasties - Dutch on the World - World on the Dutch says:
[...] why I find it darkly amusing that, today, the same Orin Kerr is solemnly lecturing The New York Times that Judge Walker here did not consider the merits of the claims about the program’s legality [...]
April 3, 2010, 7:40 pmOrenWithAnE says:
Except that this gives them carte blanche to acquire information illegally. This is a plain affront to the intent of Congress when they passed FISA (and, ironically in the AH case, Congress would have gladly amended FISA had the administration proposed it). Unless you want to argue that FISA was unconstitutional, it remains binding law — one whose provisions are not negotiable under any circumstances.
And therein lies the crux of the problem — those carefully guarded secrets have more likely than not been acquired in a manner not consistent with our more carefully guarded constitutional structure. In my analysis, that carefully guarded constitutional structure is worth all the secrets and then some.
That is, your phrasing that the only thing at stake here is the citizen’s day in court strikes me as sheepish. What is at stake is a system of government in which the Executive is bound to the will of the people. The TSP (as originally constituted) was not primarily an affront to the plaintiffs here, it was an affront to the rightful authority of Congress.
[ Of course, and I hasten to repeat, the TSP was good policy and I approve of the fact that Congress amended FISA to bring the TSP into compliance. That policy argument is irrelevant here. Dura lex sed lex. ]
April 3, 2010, 8:41 pmHoward Gilbert says:
When Congress wrote FISA most international communication used satellite technology. They buried the scope of the law in the definition of electronic surveillance, but the bottom line was that the NSA could legally intercept without a warrant any communication between anyone in the US and any targeted individual or organization outside the US. It could also legally intercept any communication between US citizens as long as both were outside the US at the time. I am not going to argue whether this was good policy or not, but that was the explicit intended consequence of the wording of the law.
When international communication started to use fiber optic cable, conforming with the law became a bit more complicated, but not particularly difficult. You just have to acquire the conversation 12 miles offshore. If the NSA could intercept Soviet internal communication to their missile and bomber bases in Siberia, they can certainly deal with this little problem. Then the Protect America Act got rid of even this small problem.
I agree that these programs have to be conducted in accordance with FISA. So far I have not seen any evidence that FISA was ever actually violated. Yes there has been speculation that it might have been violated, but it was intentionally written by Congress to be so lax that it almost makes no sense for anyone to want to violate it, at least not for the programs involved in this case.
The evidence cited and the facts listed in the decision are completely consistent with the hypothesis that Al-Haramain communications were intercepted during a legal warrantless operation targeting individuals or organizations outside the US, a type of program that FISA specifically excludes from its scope.
When people in the government violate the law, they should have to answer for it. It is primarily the job of the various branches of government to check each other. The members of the House and Senate Intelligence committees know whether any laws were violated, and none of them, Republican or Democrat, have ever seemed to be particularly concerned about it. The idea that civil suits by private individuals should be the way to police intelligence operations is plain nonsense. In may have been written as an option in section 1810, but operational security renders that option unworkable in practice (or at least it only becomes possible after all operational security has collapsed completely).
April 3, 2010, 9:48 pmAnderson says:
It may have been written as an option in section 1810, but operational security renders that option unworkable in practice
Is it not possible, sir, that Congress considered the value of “operational security,” and chose to value individual privacy above it?
It is Congress that determines whether or not we even need armed forces, whether we go to war, how any armed forces are to be regulated. The executive is the commander-in-chief of such armed forces as Congress deems to supply. These facts suggest that Congress, even moreso than the executive, is entrusted with making national-security determinations and weighing them in the balance against American liberties.
If it’s bad policy — see Oren’s comment above — that doesn’t make it somehow not the law.
April 3, 2010, 10:13 pmState Secrets, Courts, and NSA’s Illegal Wiretapping | Same Old Change says:
[...] you read over the actual opinion, however it may seem a little anticlimactic—as though something is missing. The ruling concludes that there’s prima facie evidence that Al-Haramain and their lawyers were [...]
April 4, 2010, 2:41 amOrenWithAnE says:
In this respect you are at variance with just about everyone on this point (unless by ‘evidence’, you mean ‘evidence beyond a reasonable doubt’). Comey and Goldsmith were convinced the program (as originally constituted) was unlawful, as does our own Orin Kerr (“I thought and think the TSP is illegal because it violated FISA”).
Perhaps this doesn’t meet your test because it does not pinpoint a specific act but, for my money anyway, a government program authorizing the violation of the law is itself illegal absent the (easily inferred anyway) evidence of individual acts. Gonzales would not rush to the hospital to save a program that wasn’t doing anything with the authorization given.
The burden of a defendant to justify his actions is not met by simply hypothesizing some factual situation under which the conduct was lawful, he must prove that it was lawful-in-fact, not lawful-in-fancy.
Entirely irrelevant. The committee has no power to suspend the law.
If Congresses passes (constitutional) nonsense, the Executive is bound to faithfully execute nonsense and the courts bound to enforce nonsense. There is no nonsense exception to the rule of law.
April 4, 2010, 9:57 amHoward Gilbert says:
Oren,
A lot of people have said a lot of things, but none of them have actually claimed to be in a position to know whether FISA was violated. You don’t know. Orin Kerr doesn’t know. The Comey, Goldsmith, Gonzales thing involved an authorization for some program that was suspended until it could be reauthorized, but we don’t really know the details, and besides none of them have ever claimed to have direct knowledge of the details of the program beyond the parameters of its authorization.
The only people outside NSA who had a direct responsibility for oversight of an intelligence operation were the members of the House and Senate Intelligence committee. None of them have ever claimed that any law was violated. Maybe, just maybe, the reason is that FISA was not violated during the implementation of the TSP.
I had been under the impression that the burden was on the other side. One cannot simply allege that someone may or may not have committed a crime and then shift the burden to the defendant.
Generally if you charge someone with bank robbery you have to have some facts, like the name and location of the bank that was robbed and the date of the robbery. Not some article in the New York Times saying that this person could have robbed a bank. Not some statement from a guy who knows a guy whose sister heard that this guy was a bank robber. Not even something from a guy who says he told the defendant that it would be a good idea to rob a bank. Evidence, real evidence, would be actual first hand knowledge that some specific bank was robbed.
According to the decision, Belew in Washington, DC called al-Buthi in Riyadh, Saudi Arabia on March 10, 2004. Assuming that the conversation was actually intercepted (as the decision seems to believe), a FISA warrant would have been required if Belew was the target of the intercept but would not have been required if al-Buthi was the target. Show me any evidence among the large body of items included in the decision that shows that Belew was the target. Show how a preponderance of the evidence here tends to favor the idea that Belew rather and al-Buthi was the target. Then show me how the defendant acquires a burden to prove that Belew was not the target. Or if not this conversation, then any other conversation in this case. If not this case, then any other case (but then please provide some facts and indicate specifically which of the four paragraphs of 1801(f) were involved).
April 4, 2010, 2:00 pmOrenWithAnE says:
A program that authorizes violation of the law (besides itself being repugnant) is itself ample grounds to infer violation of the law.
It’s possible but it’s not more likely than the alternative scenario.
Only contested facts need to be decided by preponderance of evidence. An uncontested fact (here the government does not contest that Belew was targeted) must be accepted as true unless it is unreasonable.
The plaintiff is entitled to every undisputed fact alleged in the complaint. In fact, this is the entire purpose of the pretrial procedure — to identify which factual matters are genuinely disputed matters to be resolved by trial. If the government refuses to contest the plaintiff’s assertions they cannot turn around and start to cast doubt as to whether they are true. The government must either accept the assertion that Belew was targeted or dispute it.
April 5, 2010, 1:11 amHoward Gilbert says:
If the plaintiff presented no evidence but only alleged that the US party might have been targeted, why does the defendant have to do more than point out that there is no actual evidence of targeting, which is an essential element of a claim that FISA was violated. Remember, the judge even admitted that targeting had been contested, but misunderstood its legal significance. Repeating the previously cited section from the opinion:
Again, the judge focuses exclusively on the 1801(k)/1810 question of standing and does not understand that while targeting does not affect that question, it is key to establish under 1801(f)(1) that the intercept falls within the scope of FISA. I think it should have been enough for the defendant to point out that an essential element of the case had not been proved to establish that there were material facts in dispute. The judiciary should not insist that the executive break its rule about neither confirming nor denying speculation about the sources and methods of intelligence. If the judiciary cannot protect US intelligence based on an inflexible application of one of its rules, then the State Secrets doctrine is the appropriate over-response to an overreaching judiciary.
April 5, 2010, 8:07 amOrenWithAnE says:
You are right, it was not proven. It was stipulated to by assertion of the plaintiff and refusal of the defendant to dispute it. It then entered in to the realm of ‘undisputed facts’ that are assumed to be true for the purposes of summary judgment.
Perhaps you misunderstand the concept of rules. The Executive plays by the same FCP that everyone else does — including FCP56(e)(2). That is indeed the entire point of rules, to provide a uniform procedure for the resolution of disputes under the law.
[ Of course, you can lobby Congress to amend the FCP, as they did in '73 when they didn't accept the Court's FRE. The authority for the FCP derives directly from Congress, which is constitutionally empowered to make such rules under whatever balance of interests they see fit. Your statements about the overreaching judiciary ought to be directed at Congress who wrote the private cause of action into FISA, who enabled (and do not amend) the FCPs to which you object and who apparently do not defer as much to operational security as you would prefer. ]
The court did what was required by the SSD — it allowed the plaintiff to make a case based on the unclassified evidence. Your issue seems to be with the sufficiency of that evidence, not the fact that it was admissible (insofar as I read your arguments correctly).
April 5, 2010, 10:49 amfalse seriousness says:
Howard, you need to read the Constitution in addition to FISA.
You have a problem with the 4th amendment.
This must be John Yoo posting trying to salvage his legacy from the dustpin through sockpuppetry. I thought the bad guys hated us for our freedoms?
Not so much according to Howard.
April 5, 2010, 10:57 amHoward Gilbert says:
However, the other half of the SSD says that the case must be dismissed if the government cannot defend itself without disclosing state secret material. You cannot claim that the plaintiff made its case based on unclassified material if it left unproven a material fact and a judicial rule requires the government to compromise a state secret matter in order to satisfy the formality of contesting the unproven fact. To satisfy SSD the case must be made and the government must be able to respond without compromising operational security.
The problem could be avoided if judicial notice was taken of the government’s constraint neither to confirm nor deny speculation on intelligence sources and methods, and therefore to deem the government’s noted objection that a fact has not been proven to be, by itself, sufficient to meet the requirements of FCP56(e)(2) in this matter. If you insist that the government issue the prohibited words “we deny” with regard to the unproven fact, then you prevent the government from defending itself and then trigger the SSD requirement that the case be dismissed outright.
April 5, 2010, 1:13 pmOrenWithAnE says:
The TSP most certainly complies with the 4A, the offense was statutory, not constitutional.
Yes, that would avoid the problem in the alternate universe where FCP56(e) was not written as it is. The Supreme Court or Congress may yet amend the FCP to your liking in this one as well.
In this case, however, the FCP is as written and does not “deem” government objection to a fact without setting out specific facts showing a genuine issue to meet the requirement. No amount of saying that it should do so changes the fact (not that I’m even unsympathetic to amending the rule, of course, in the proper fashion) that it is the operative rule. While it remains the rule, the courts are not at liberty to simply invent a new rule just for this case.
Perhaps we are never going to get anywhere without acknowledging the fundamental gulf between procedural justice and outcome-oriented justice. My position is that the FCP must be followed or, if necessary amended, irrespective of any preference for the outcome for any case. It is for Congress to balance the requirements of FCP56(e)(2) with operational security and the courts (and certainly not a district court) simply may not substitute an alternative procedure, period. The law is the law, it must be respected while it stands and amended by the proper procedure if it is faulty.
This is a misstatement of Reynolds. The SSD only requires dismissal when the matter cannot at all be litigated without resort to privileged sources.
Normally, as here, the SSD only serves as an evidentiary bar on what the plaintiff may bring/subpoena when trying to make his case. He is still fully entitled to make the case without resort to classified or otherwise privileged evidence.
April 5, 2010, 1:46 pmfalse seriousness says:
Of course the 4th is implicated. FISA is devised to be the most minimal check on search and seizure possible, while providing constitutional “cover”; that’s the point of the statute. To bring historic executive branch illegality into some form of constitutional compliance.
Howard objects to any actual check at all. In his view, the executive branch has no accountability, period. It can just say “Secret!”, and there’s no ability for anyone else to do anything about it – whatever is alleged, and whether or not the government responds to normal rules of civil procedure.
April 5, 2010, 2:40 pmOrenWithAnE says:
You might want to look into rulings from directly before FISA. Here’s a list to get you started:
United States v. Brown, 484 F.2d 418
United States v. Butenko, 494 F.2d 593
FISA directly overturned this state of affairs and thus was a statutory enactment granting protection in excess of the 4A.
April 5, 2010, 3:18 pmOrenWithAnE says:
I should add that attempts since to find FISA unconstitutional have failed as well. United States v. Duggan, for example.
April 5, 2010, 3:22 pmOrenWithAnE says:
Here’s another one [PDF] for you.
Barring some significant change in existing doctrine, the constitutionality of FISA (as applied to foreign intelligence gathering and not as a cover for domestic law enforcement, anyway) is on very solid ground.
April 5, 2010, 3:24 pmfalse seriousness says:
I guess you need to read a little more history. Start with Frank Church.
You are as bad as Howard, bloviating around but missing the key point.
FISA is a statutory figleaf to provide a system to address systemic, and unconstitutional, searches by the executive branch. It’s an attempt to house “reasonable” searches by providing no real constitutional protection, but at least something. Howard doesn’t even want that much.
April 5, 2010, 5:06 pmfalse seriousness says:
Just in case it’s not clear, I did not say that FISA was unconstitutional. It’s designed to try to avoid a constitutional problem while addressing actual security concerns.
Of course, as a judicial process, in reality it’s a joke and it has been vastly and unforgivably misrepresented.
April 5, 2010, 5:15 pmOrenWithAnE says:
Indeed, the drafters of FISA had just come off the Church Committee. I think they knew exactly what they were doing when drafting the statute.
Except that it provides a statutory protection that has been upheld as constitutional by every single court that has ever examined the issue.
You fooled me. You said it provides ‘no real constitutional protection’ which sounds an awful lot like “insufficient protection for constitutional rights”.
What constitutional problem? The fact that the courts upheld the warrantless wiretapping of Brown and Butenko without any statutory or judicial involvement at all? It’s hard to see the constitutional problem at all when the courts have clearly said that the fourth amendment does not require a warrant when the matter genuinely concerns with foreign intelligence.
So now Congress creates more statutory protection than the fourth amendment strictly requires, and your position is that it’s a fig leaf? A fig leaf over the absence of a warrant requirement?
April 5, 2010, 7:02 pmfalse seriousness says:
If I say something is ineffective, you leap to judgment that I’m saying it’s unconstitutional? You get fooled a lot by a lot of things I’d say.
Do you believe the abuses the Church commission encountered were constitutional? Heck, do you believe massive, warrantless surveillance is unconstitutional?
You believe that FISA is a bonus to the 4th, rather than a mechanism to actually make the 4th real? I applaud the Church commission for trying, but the subsequent reforms obviously did not work in a meaningful way, and even those pitiful mechanisms have been systematically violated – and regarded with great hysteria by those who appear to believe as Howard does.
And what of the criminal penalties involved for clear statutory violations? Are those to be ignored? So convenient for one legalism to warp view from other, less convenient legalisms.
I think you look at the result and ignore the cause in favor of, well, legalisms. So much that you sound like a cargo cultist, worshiping a structure without any understanding.
And no, I do not believe that in reality the FISA courts provide any meaningful constitutional purpose or protection. Last I read, something like 6 warrants had ever been denied, although of course no one knows, because no one knows what is going on, which is sort of the problem I have in the first place. Secrecy begets corruption and abuse by governments.
There are an awful lot of problems with this comment, not the least of which is pretending there is unanimity of opinion on this. Maybe you needed more adverbs?
April 5, 2010, 9:03 pmOrenWithAnE says:
Ineffective at what then?
Warrantless surveillance narrowly barricaded for the purpose of foreign intelligence gathering is constitutional, that much is well settled law. The abuses of the Nixon administration in applying that rationale to domestic criminals (or worse still, political enemies) was never accepted by any court as constitutional.
So you are playing games with me, talking about FISA, which regulates only surveillance for the purposes of foreign intelligence, in which the warrant requirement never enters and then switching gears to Nixon, which involved domestic matters and which FISA changes nothing at all. That is, what Nixon did was illegal before FISA and is not one whit effected by a statute on foreign intelligence gathering because it was not ever (drumroll) foreign intelligence gathering.
Going forward, let’s be clear about whether we are talking about:
(1) Foreign intelligence:
(2) Domestic law enforcement:
Hope that helps.
It follows plainly from the conclusion in Brown and Betenko. You have avoided confronting the fact that those cases say as plainly as words can possibly say that the warrant requirement of the fourth amendment does not apply to foreign intelligence gathering. Read the cases.
I really don’t know what more I can say. That’s settled law. Any requirement that FISA places on bona-fide foreign intelligence gathering is beyond what is required by the 4A, which is nothing.
Ask Eric Holder.
What result? What cause?
As to the accusation of legalism, that’s the entire purpose of the constitution: to provide a formal legal framework for a system of governance. The fourth amendment is part of that framework and it’s operation is one of law.
Maybe you need to read cases even when they establish precedent contrary to your own personal wishes. Brown and Betenko are well-settled law, and you can’t avoid that conclusion by ignoring them or conjuring up a legal dispute where none exist. Show me a single case holding otherwise, I’ll eat my hat.
Hint: When you are done with Brown and Betenko, try United States v. Buck, 548 F.2d 871 and United States v. Truong, 629 F.2d 908.
For an interesting case in which a plaintiff won against the government, see Zweibon v. Mitchell, 516 F.2d 594, in which the court concluded that despite the fact that “(n)o prior authorization from a Court is necessary where, as in this case, electronic surveillances relate to the foreign aspects of our national security”, in this instance the relation to foreign intelligence was minimal and the defendant neither agent nor collaborator with a foreign power.
April 5, 2010, 11:05 pmfalse seriousness says:
There was systemic violation of 4th. It was a scandal. Congress conducted an investigation, and saw a problem. It wanted to address that problem. FISA was a result of Congress’s effort to address that problem.
My appearance in this thread was around the point where you were asserting the 4th had nothing do with this. Or maybe it was Howard, who was clearly talking nonsense.
That’s wrong, FISA is a tool to bring meaning to the 4th.
As a tool, it’s still ineffective, because systemic abuses and surveillance continue to occur – ones that I believe violate the 4th.
At this point, the courts that have actually looked at these issues have also concluded there are violations.
Including Walker.
And the “coral reef” on this jurisprudence certainly has a long way to go. your comment failed because you have to qualify it to meaninglessness – when the real issues involve surveillance of US persons.
April 6, 2010, 11:02 amOrenWithAnE says:
Indeed, so far so good.
The 4A has nothing to say about warrantless surveillance for the purpose of gathering foreign intelligence. I’ve cited 5 cases now that have explicitly held just that.
Except that by its very terms, FISA applies to foreign intelligence gathering — an action that does not in any way impinge on the 4A (see Brown, Butkeno, Truong ….). It doesn’t “bring meaning” to the 4th, it ensure that, internally, the Executive branch confine foreign intelligence gathering to matters of foreign intelligence.
Well, I can’t argue with what you believe besides noting that every court to reach the 4A issue has rejected it.
Violations of the STATUTE — no court has ever found a violation of the 4A. This is an important distinction.
I have already agreed (upthread and in the archives) that the TSP was most certainly a violation of FISA. That much is more or less uncontested (including by many conservative lawprofs and jurists).
Meanwhile, there are post-FISA cases rejecting fourth amendment challenges, all coming to the conclusion that the searches conducted under FISA comport with the 4A. See:
United States v. Megahey, 553 F. Supp. 1180 (E.D.N.Y. 1982),
United States v. Johnson, 952 F.2d 565 (1st Cir. 1991).
United States v. Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982).
United States v. Sarkissian, 841 F.2d 959 (9th Cir. 1988).
For the purposes of the 4A, the distinction is not whether the target is a US person but whether the matter genuinely concerns foreign intelligence gathering. Again, read the cases cited above — in all those instance the target was a US person and yet the surveillance held to comport with the 4A.
April 6, 2010, 12:08 pmOrenWithAnE says:
Also, I don’t know what the coral reef of a jurisprudence is.
April 6, 2010, 12:11 pmfalse seriousness says:
The Bramble Brush.
My observation that you are a cargo cultist was dead on.
FISA provides for certain penalties for violations. What are those violations and why are they in the statute?
I think you need to read what I wrote again, but it’s pretty clear there has been massive noncompliance. But you keep chasing those red herrings.
April 6, 2010, 2:25 pmOrenWithAnE says:
In order for wronged defendants like Al-Haramain here to get redress for being improperly targeted. Seems to work well enough, as far as I can see.
There was massive statutory noncompliance and constitutional noncompliance. I don’t know how many times I have to point out that I’ve long agreed that FISA, the statute, was without a doubt broken by the TSP
Maybe this my lucky try and it will stick this time.
Why don’t you point out specifically with which of my positions you disagree with, I feel like this might go a lot smoother.
April 6, 2010, 2:50 pmOrenWithAnE says:
Sorry, I meant “statutory noncompliance and not constitutional noncompliance”.
My mistake.
April 6, 2010, 4:34 pmJon Eisenberg says:
I am not in the habit of responding to bloggers, but I feel compelled to respond to Professor Kerr, if for no other reason than to call his attention to some key passages in Judge Walker’s Al-Haramain opinion of July 2, 2008, in which Judge Walker ruled that FISA preempts the state secrets privilege.
Professor Kerr dismisses as “lawyer’s spin” my assertion that Judge Walker implicitly repudiated the Bush-Cheney theory of executive power. Professor Kerr also says: “DOJ wasn’t arguing that FISA was not binding. That was the Bush Administration’s position in the past, but not the position the Obama administration was taking.” Actually, Judge Walker expressly repudiated the Bush-Cheney theory of executive power in his 2008 opinion. I called the March 31, 2010 repudiation “implicit” because, while it’s not there expressly, the foundation for the 2010 opinion is the 2008 opinion, where the repudiation is express.
Specifically, in the 2008 opinion, Judge Walker ruled not only that FISA preempts the state secrets privilege, but also that, applying the third prong of Justice Jackson’s concurring opinion in Youngstown Sheet and Tube, FISA limits the President’s authority to assert the state secrets privilege, and the federal courts must give effect to FISA’s preemption of the state secrets privilege. Thus, in the 2008 opinion, Judge Walker rejected the theory that the President may disregard FISA’s preemption of the state secrets privilege, concluding that FISA is binding.
In the government’s fourth motion for dismissal and summary judgment filed August 20, 2009, the Obama administration stated, at page 16: “The Government, of course, continues to disagree with the Court’s [2008] holding that FISA preempts the state secrets privilege . . . .” That is where the Obama administration adopted the Bush administration’s position that FISA is not binding: in expressing disagreement with Judge Walker’s 2008 holding that FISA limits the President’s authority to assert the state secrets privilege and that FISA is binding.
Here are the pertinent excerpts from Judge Walker’s 2008 opinion, In re National Security Agency Telecommunications Records Litigation, 564 F.Supp.2d 1109, 1116, 1121-1122 (N.D. Cal. 2008):
The Report of the Senate Select Committee on Intelligence stated that the FISA bill’s “exclusive means” statement “puts to rest the notion that Congress recognizes an inherent Presidential power to conduct such surveillances in the United States outside of the procedures contained in chapters 119 and 120.” Foreign Intelligence Surveillance Act, S Rep No 95-701, 95th Cong 2d Sess 71, reprinted in 1978 USCCAN 3973, 4040. That report cited Congress’s authority over FISA’s subject matter in Article I section 8 of the Constitution and the power to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” US Const cl 1, 18. The report also both discussed Justice Jackson’s concurring opinion in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) and included the following passage from the opinion:
“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional power of Congress over the matter.”
See also Foreign Intelligence Surveillance Act,
H Conf Rep No 95-1720, 95th Cong 2d Sess 35, reprinted in 1978 USCCAN 4048, 4064. (“The intent of the conferees is to apply the standard set forth in Justice Jackson’s concurring opinion in [Youngstown Sheet & Tube].”)
* * * * *
Even the Court’s comparative weighing of the imperatives of confidentiality for “undifferentiated” presidential discussions and “military, diplomatic or sensitive national security secrets” affords defendants little help in this case. Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), upon which defendants rely, confirms that power over national security information does not rest solely with the president. Egan recognized the president’s constitutional power to “control access to information bearing on national security,” stating that this power “falls on the President as head of the Executive Branch and as Commander in Chief” and “exists quite apart from any explicit congressional grant.” Id. at 527, 108 S.Ct. 818. But Egan also discussed the other side of the coin, stating that “ unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.” Id. at 530, 108 S.Ct. 818 (emphasis added). Egan recognizes that the authority to protect national security information is neither exclusive nor absolute in the executive branch. When Congress acts to contravene the president’s authority, federal courts must give effect to what Congress has required. Egan’s formulation is, therefore, a specific application of Justice Jackson’s more general statement in Youngstown Sheet & Tube.
It is not entirely clear whether defendants acknowledge Congress’s authority to enact FISA as the exclusive means by which the executive branch may undertake foreign intelligence surveillance in the domestic context. While their papers do not explicitly assert otherwise, defendants’ attorney in this matter stated in open court during the hearing herein held on April 23, 2008 that, while he conceded that “Congress sought to take over the field” of foreign intelligence surveillance (Doc # 452 at 29:2-3), whether the president actually had constitutional authority under Article II to order such surveillance in disregard of FISA remained an open question: “[D]oes the president have constitutional authority under Article II to authorize foreign intelligence surveillance? Several courts said that he did. Congress passed the FISA, and the issue has never really been resolved. That goes to the issue of the authority to authorize surveillance.” Id. at 33:7-12. Counsel repeatedly asserted that this issue was entirely separate from the preemption inquiry relevant to the state secrets privilege and urged the court not to “conflate” the two inquiries. E.g., id. at 32:8-10.
To the contrary, the court believes that the two areas of executive branch activity pertaining to foreign intelligence surveillance are not distinct for purposes of this analysis as defendants’ counsel asserts. Congress appears clearly to have intended to-and did-establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.
April 8, 2010, 9:09 pm