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Legal Analysis of the NSA Domestic Surveillance Program:
Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act. My answer is extra-cautious for two reasons. First, there is some wiggle room in FISA, depending on technical details we don't know of how the surveillance was done. Second, there is at least a colorable argument — if, I think in the end, an unpersuasive one — that the surveillance was authorized by the Authorization to Use Miltary Force as construed in the Hamdi opinion.

  This is a really long post, so let me tell you where I'm going. I'm going to start with the Fourth Amendment; then turn to FISA; next look to the Authorization to Use Military Force; and conclude by looking at claim that the surveillance was justified by the inherent authority of Article II. And before I start, let me be clear that nothing in this post is intended to express or reflect a normative take of whether the surveillance program is a good idea or a bad idea. In other words, I'm just trying to answer what the law is, not say what the law should be. If you think my analysis is wrong, please let me know in the comment section; I'd be delighted to post a correction.

  The Fourth Amendment. On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent. There are a bunch of different arguments here, but let me focus on two: the border search exception and a national security exception. Neither is a slam dunk, by any means, but each are plausible arguments left open by the cases.

  The border search exception permits searches at the border of the United States "or its functional equivalent." United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.).

  As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad. I'm not aware of any cases applying the border search exception to raw data, as compared to the search of a physical device that stores data, so this is untested ground. At the same time, I don't know of a rationale in the caselaw for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the "functional equivalent of the border," much like airports are the functional equivalent of the border in the case of international airline travel. [UPDATE: A number of people have contacted me or left comments expressing skepticism about this argument. In response, let me point out the most persuasive case on point: United States v. Ramsey, holding that the border search exception applies to all international postal mail, permitting all international postal mail to be searched. Again, this isn't a slam dunk, but I think a plausible argument -- and with dicta that seems to say that mode of transportation is not relevant.]

  The government would have a second argument in case a court doesn't accept the border search exception: the open question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance. Footnote 23 of Katz v. United States left this open, and Justice White's conccurrence in Katz expanded on this point:
Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.
  The Supreme Court also left this question open in the so-called "Keith" case, United States v. United States District Court, in 1972. Justice Powell's opinion in the Keith case concluded that there was no national security exception to the Fourth Amendment for evidence collection involving domestic organizations, but expressly held open the possibility that such an exception existed for foreign intelligence collection:
Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." There is no evidence of any involvement, directly or indirectly, of a foreign power.
  The administration presumably takes the position that the President does have such power in cases involving foreign evidence collection, and that the NSA surveillance is such a case. The Supreme Court has never resolved the question, so it's an open constitutional issue. Nonetheless, between the border search exception and the open possibility of a national security exception, there are pretty decent arguments that the monitoring did not violate the Fourth Amendment. Maybe persuasive, maybe not, but certainly open and fair arguments under the case law.

  Foreign Intelligence Surveillance Act. Now let's turn to FISA, a 1978 law that Congress enacted in response to the Keith case. FISA goes beyond the Keith case, including foreign intelligence surveillance in its scope even though it was left open as a constututional question.

  Specifically, 50 U.S.C. 1809 prohibits "electronic surveillance" except as authorized by statutory law: "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute." "Electronic surveillance" is defined in 50 U.S.C. 1801(f) to mean, in relevant part:
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. . . .
  A "United States person" is defined in 50 U.S.C. 1801(i) as "a citizen of the United States [or] an alien lawfully admitted for permanent residence." A "wire communication" is defined as a communication that is traveling by a wire; I don't know if "radio communication" is a defined term, but I assume it refers primary to satellite communications.

  Putting aside the AUMF and statutory exceptions for now, let's consider whether the NSA surveillance program violates the basic prohibition of 50 U.S.C. 1809 — intentionally conducting electronic surveillance. I think the answer is probably yes. If the surveillance tapped wire communications under 1801(f)(2), the case is pretty clear: the surveillance involved people in the U.S. and survillance in the U.S., and that's all that is required. If the surveillance involved radio communications (satellite communications, I'm guessing), that's a bit trickier. There is at least a little wiggle room in Section 1801(f)(1). For example, you could say that the border search exception eliminates Fourth Amendment protection, such that there was no reasonable expectation of privacy and therefore there would be no warrant required in an analogous criminal case. In that case, the tapping of the radio communication wouldn't count as "electronic surveillance." I don't think we know the details of how the communucations were obtained, so I think it's fair to say that the surveillance probably violated the basic proibition but it at least arguably depends on some of the technical details we don't know.

  Now, on to the exceptions. 50 U.S.C. 1802(a)(1) provides in relevant part:
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that--

(A) the electronic surveillance is solely directed at--
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title; [and]

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.
  Does this exception permit the monitoring? Note that (i) and (ii) are both dealing with "foreign power, as defined in (a)(1), (2), or (3) of this title." FISA's definition of "foreign power" appears in 50 U.S.C. 1801:
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.
  So as I read the statutes, Congress was trying to give an exception for monitoring foreign governments (a1, a2, a3) but not terrorist groups (a4, a5, a6), so long as no citizens or lawful permanent resident aliens were being monitored. There are interesting questions of how that might have applied to Al Qaeda in Afghanistan, but I don't think we need to reach them. It's my understanding that the program monitored both citizens and non-citizens, so I don't see how the exception is applicable.

  (Aside: Remember back in 2003 when a copy of the Administration's "Domestic Security Enhancement Act" — sometimes dubbed "Patriot II" — was leaked to the press? Section 501 of that Act would have made "providing material support" to a terrorist group an automatic ground for terminating citizenship. This is just a guess, but I wonder if the thinking was that this would make the NSA warrantless monitoring program legal under FISA. An individual who made regular contact with Al Qaeda could be giving them material support, and the individual would then no longer be a United States person and could then be legally subject to monitoring. Just speculation, but it might explain the thinking behind the legislative proposal. Anyway, back to our regularly scheduled programming.)

  Authorization to Use Military Force. The next question is whether the Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, justified the monitoring. The authorizaton states in relevant part:
AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL.--That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
  I assume that the Administration's claim is that the AUMF counts as a "statute" that authorizes the surveillance: 50 U.S.C. 1809 states that "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute," so if the AUMF authorized the electronic surveillance, then the NSA program didn't violate FISA.

  The Supreme Court considered the legal effect of the AUMF in Hamdi v. Rumsfeld. Yaser Hamdi was being held as an enemy combatant, and claimed that his detention violated 18 U.S.C. 4001. Section 4001(a) states that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Given Justice Thomas's very broad reading of the AUMF in his dissent, I think the key interpretation is that of Justice O'Connor's plurality opinion, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer. Justice O'Connor concluded that the the AUMF was "an act of Congress" that authorized Hamdi's detention, such that the detention did not violate 4001(a):
  The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.
  The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin, 317 U. S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. . . .
   . . .
  In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.
   . . .
  Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.
  . . .
  The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF.
  So does the AUMF authorize the surveillance? As often happens when you're trying to draw guidance from an O'Connor opinion, it's not entirely clear. Under her opinion, the key question is whether the act is "so fundamental and accepted an incident to war" that it falls within the authorization. But that depends on the level of generality you chose to use to define "the act." Is "the act" spying on the enemy? In that case, perhaps it is a fundamental incident to war. Or is "the act" conducting U.S. domestic surveillance of U.S. citizens? In that case, the answer is no, it's not a fundamental incident to war.

  In the end, my best sense is that the AUMF doesn't extend to this. I have three reasons. First, O'Connor's opinion says the following about detention for interrogation: "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized." It seems to me that surveillance and wiretapping is pretty similar to interrogation: the point of both is getting information about your enemy. Second, it doesn't seem like wiretapping counts as a "use of force." If you read the text of the AUMF, it doesn't seem to me that it authorizes wiretapping. Finally, note that Congress passed the Patriot Act about a month after passing the AUMF; if Congress had intended the AUMF to give the president wide authority to conduct domestic surveillance against Al Qaeda, I don't think they would have spent so much time amending FISA for terrorism investigations. So at bottom, I think the AUMF probably didn't authorize this, although the Hamdi case gives some colorable (if ultimately unpersuasive) arguments that it might.

  Article II. The final argument is that Article II of the Constitution gives the President inherent authority to conduct such monitoring. The Administration introduced this theory in a supplemental brief filed in the FISA Court of Review:
  The President Has Inherent Authoritv to Conduct Warrantless Electronic Surveillance to Protect National Security from Foreign Threats.

  In considering the constitutionality of the amended FISA, it is important to understand that FISA is not required by the Constitution. Rather, the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority. Both before and after the enactment of FISA, courts have recognized the President's inherent authority to conduct foreign intelligence surveillance. See, e.g., Butenko, 494 F.2d at 608 (grounding exception to warrant requirement in the President's Commander-in-chief and foreign-affairs powers; noting that the country's self-defense needs weigh on the side of reasonableness); Truong, 629 F.2d at 914 (citing the President's foreign affairs power as justifying an exception to the warrant requirement); cf. United States v. United States District Court (Keith), 407 U.S. 297, 308 (1972)(reserving the question whether the President's foreign-affairs powers justify exception from warrant requirement).
  So the argument, as I understand it, is that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power, a judgment made, I suppose, by the President himself.

  I have been unable to find any caselaw in support of this argument. Further, the argument has no support from the cases cited in the government's brief. In all three of those cases — Butenko, Truong, and Keith - the Courts were talking about whether the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment. In other words, the issue in those case was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitons in this area cannot bind the Executive branch.

  Consider the citation to the Butenko case. Here is the relevant section, from 494 F.2d at 608:
  Both executive authority in the foreign affairs area and society's interest in privacy are of significance, and are equally worthy of judicial concern.
  . . .
  The importance of the President's responsibilities in the foreign affairs field requires the judicial branch to act with the utmost care when asked to place limitations on the President's powers in that area. As Commander-in-Chief, the President must guard the country from foreign aggression, sabotage, and espionage. Obligated to conduct this nation's foreign affairs, he must be aware of the posture of foreign nations toward the United States, the intelligence activities of foreign countries aimed at uncovering American secrets, and the policy positions of foreign states on a broad range of international issues.
  To be sure, in the course of such wiretapping conversations of alien officials and agents, and perhaps of American citizens, will be overheard and to that extent, their privacy infringed. But the Fourth Amendment proscribes only 'unreasonable' searches and seizures. And balanced against this country's self-defense needs, we cannot say that the district court erred in concluding that the electronic surveillance here did not trench upon Ivanov's Fourth Amendment rights.
  As I read this analysis, it is entirely focused on the Fourth Amendment, and specifically whether the President's Commander in Chief power should trigger a relaxed Fourth Amendment standard. That seems quite different from a claim that Article II makes Congressional regulation inoperative. The same goes for the citation to Truong, 629 F.2d at 914. In the course of discussing whether the Courts should require a warant for foreig intelligence surveillance, the court tried to balance the ability of courts to regulate intelligence surveillance with the strong governmentg interest:
  Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs. The President and his deputies are charged by the constitution with the conduct of the foreign policy of the United States in times of war and peace. Just as the separation of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic security surveillance, so the separation of powers requires us to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign intelligence surveillance.
In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance.
  While the Court was recognizing the President's constitutional role, it was in a very specific context: balancing reasonableness in the context of Fourth Amendment law to determine whether the surveillance required a warrant. Again, this doesn't seem to go to whether Congress can impose binding statutory prohibitions beyond the Fourth Amendment.

  Conclusion. Anyway, that's my tentative take; I hope it's helpful. It's entirely possible that I goofed the analysis somewhere along the way; FISA, the AUMF, and Article II aren't my area of expertise, so we should consider this post a work in progress. I look forward to comments — civil and respectful, please.

  UPDATE: A lawyer I know who works in this area e-mails in additional thoughts:
  Of course you're right that Keith and Katz reserved the question whether the President may engage in warrantless surveillance of foreign-based threats to the national security. While the Supreme Court has never addressed the issue, a number of federal appellate courts, some of which you cite at the end of your post, answered that question in the affirmative in the years immediately after Keith. See, e.g., United States v. Brown, 484 F.2d 418 (5th Cir. 1973); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc); United States v. Buck, 548 F.2d 871 (9th Cir. 1977); United States v. Truong, 629 F.2d 908 (4th Cir. 1980). But see Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975).
  The interesting question is whether FISA somehow extinguishes this inherent Presidential power to conduct foreign-intelligence surveillance. There's a respectable argument that it does. FISA repealed Title III's reservation clause (18 USC 2511(3)), in which Congress expressly had forsworn any intent to regulate the collection of foreign intelligence. Given that repeal, we might be in Category Three from Justice Jackson's Steel Seizure concurrence — "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 powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject."
  If you're in the mood for more, check out posts on this from Marty Lederman and Daniel Solove.
Greedy Clerk (mail):
So bottom line is that it's illegal. I bet that the President does not care however.

I stand by my comments in the prior post. The Prez has this power puruant to his authority as commander in chief of all laws supplemented by his power under the Supremacy Clause as supreme leader of the law of the land. Also remember we are at war and thus the President's authority is even greater. 9/11. Lots of people died. Can't happen again. 9/11.
12.19.2005 5:09pm
Markusha:
I just want to say a big "THANKS" to Professor Kerr for his detailed and thoughtful analysis of the issues. Incidentally, I tend to agree that while the program may not violate Constitution, it most likely violates the FISA Act. Thanks again for the analysis!
12.19.2005 5:10pm
Bobbie:
From reading your post, it seems like you’re coming from the point of view that we should have a strong presumption that the government’s actions are constitutional. Look at the language you use in the fourth amendment analysis: “On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent”; “each are plausible arguments left open by the cases”; “it seems at least plausible that a border search exception”; “The Supreme Court has never resolved the question, so it's an open constitutional issue”; and “there are pretty decent arguments that the monitoring did not violate the Fourth Amendment.” Despite the fact that your analysis goes no father than the governments arguments are “decent” and “plausible,” you conclude that the program is “probably” constitutional. Huh?
12.19.2005 5:14pm
MS Paper Clip (mail):
Thank you Mr. Kerr for writing this, I am rereading it to try to get a better grasp on the issue. Your hard work is furthering an important discussion.

Greedy Clerk, you're right that the administration will look for loopholes to fight the War on Terror, and that's probably partly why they have been so successful, but this policy is not a new one.

As everybody knows by now, Clinton misused Echelon, and Echelon stores virtually every phone call made.

If the Administration is really breaking the law, and it's too muddy an issue for anyone to seriously claim they are certain either way without a lot of homework, then they should advocate new laws (which they probably are), but also this effort should be seen in its historical context: Bush continued a program that sounds disturbing partly because of how its been misused in prior administrations.
12.19.2005 5:16pm
duh! (mail):
Yes its constitutional, as long as you don't take that damn thing to literally...
12.19.2005 5:19pm
Eric Muller (www):
Orin, why do you conclude that the program is "probably" constitutional if you conclude that it's "probably" not authorized by either the AUMF or Article II?

I suspect that you mean that the program probably does not violate the 4th Amendment, but that doesn't mean it's constitutional.
12.19.2005 5:24pm
A.S.:
So the argument, as I understand it, is that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power, a judgment made, I suppose, by the President himself.

I have been unable to find any caselaw in support of this argument.


Steel Seizure Case, no? I mean, when you are review the extent of the President's power under Article II vis-a-vis Congress's power, that's where you have to turn first.

As I commented on another thread, you could determine this is a Category 3 case under Steel Seizure (Jackson's case where the President's authority contradicts the express will of Congress), if you've determined that the President's exercise of his power contradicts Congress's express will under FISA. On the other hand, the Use of Force resolution could turn this into a Category 1 case, where the President in using the power to implement Congress's implied will.
12.19.2005 5:27pm
Anderson (mail) (www):
Thanks very much, Prof. Kerr!

Second Prof. Muller; Kerr was obviously working in haste, and I think "probably constitutional" means "probably not intrinsically unconstitutional."
12.19.2005 5:27pm
Ugh (mail):
Prepare to have this post used by the folks at redstate.org as the definitive proof that Bush did no wrong (despite what this post actually says).

And thanks, Professor.
12.19.2005 5:30pm
JohnAnnArbor:
Echelon stores virtually every phone call made

As a practical matter, I doubt that very much.
12.19.2005 5:32pm
Alan Meese (mail):
Thanks for the very lengthy analysis. I agree on the 4th Amendment point.

But I am not sure I understand the basis of the conclusion on the Article II point. The absence of cases supporting the President's argument does not mean the argument is wrong. One might just as well point to the absence of cases going the other way. In other words, when has the Supreme Court held that the Congress may interfere with/detract from the President's power as Commander-in-Chief? I know of no such cases . . . Nor do I know of any cases holding that Congress may detract from, say, the President's power to nominate Supreme Court Justices or Appoint Ambassadors. See Public Citizen v. United States (Kennedy, J. concurring)(explaining why regulation of the Appointments Power violates Article II).

Absent cases, we have to argue from first principles, something many have been trying to do in comments to the previous post. So far I have seen no convincing argument that Congress may ignore the Constitution and order the President to refrain from exercising his power as Commander in chief when engaged in authorized military operations against a foe Congress itself has identified as such. Nor have I seen any convincing argument that the President must enforce unconstitutional laws, contrary to the Supremacy and Take Care Clauses.

So, I respectfully disagree on this point with the Professor.
12.19.2005 5:32pm
Medis:
Orin,

On the subject of the intersection of the 2001 AUMF and 50 USC 1809, it seems to me 18 USC 2511 is also relevant. Specifically, 2511(2)(f) provides:

"... and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted."

So, it seems to me that while 50 USC 1809, taken alone, allows one to look for statutory authorization anywhere, 18 USC 2511 limits where one can look for authorization to three places: chapters 119 and 121 of Title 18, and FISA.

Accordingly, I think 18 USC 2511 provides an additional barrier to holding that the 2001 AUMF provided statutory authorization as per 50 USC 1809. Specifically, one would have to hold that the general language of the AUMF somehow amended the more explicit language of 18 USC 2511. And I am pretty sure that violates several canons of statutory construction.
12.19.2005 5:32pm
A.S.:
Following up on my Steel Seizure comment, let me add something with regard to this sentence of Orin's:

In other words, the issue in those case was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitons in this area cannot bind the Executive branch.


As I read it, what Orin is saying is that Butenko and Truong are both Steel Seizure Category 2 cases - where the court had to determine the extent of the Executive's power in absence of Congressional action. I take it, then, that Orin's objection to the citation of these cases is that we are now in Steel Seizure Category 3, not Category 2, so those cases are inapplicable.

True, as far as it goes. But I would think that an analysis of Category 3 would have to acknowledge that, under Category 2 circumstances, the courts have generally found the Executive to have the authority for warantless surveillance.
12.19.2005 5:34pm
NJR (www):
The devil may be in the (technincal) details. If the NSA was monitoring only where the communications were coming from and going to, but not monitoring the contents of the communication, would those communications even fall under FISA? The President made it clear in the press conference that we were "detecting" communications. That may mean that we are seeing where they go, not what they contain. If that is the case, the monitoring doesn't seem it would fall under the definitions of electronic surveillance in § 1801.

I'm not a lawyer, so a legal clarification would be appreciated.
12.19.2005 5:34pm
Eric Muller (www):
Anderson, this is not in insignificant point. If the program was "probably" not supported by either a congressional grant of power or by Article II itself, then the program is "intrinsically unconstitutional." Probably.
12.19.2005 5:35pm
OrinKerr:
Eric, Anderson,

Maybe I'm missing something, but it seems to me that an executive branch action can violate federal statutory law without violating the constitution. Eric, what constitutional provision do you think has been violated?
12.19.2005 5:35pm
Traveler:
In the early stages of Orin's analysis above, he concludes that 1801(f)(2) likely prohibits this program, because: "the case is pretty clear: the surveillance involved people in the U.S. and survillance in the U.S., and that's all that is required."

Note that 1801(f)(2) requires that "such acquisition occurs in the United States," as he quotes.

This seems like a major technical detail -- insofar as these are communications between the U.S. and foreigners, isn't it quite conceivable that the acquisition occurred *outside* the U.S., and therefore 1801(f)(2) does not apply at all?
12.19.2005 5:38pm
MAH (mail):
Echelon stores virtually every phone call made

No. Eschelon monitors calls in and outbound from the US, and only those using certain technologies. There is almost no long term storage capability in comparison to the volume of calls.
12.19.2005 5:39pm
AF -- other one:
So, my take from the definition of "electronic surveillance" is that they pretty much exclude any communications once they exit the U.S. - subsection (f)(1) does not apply where the 4th Amendment does not apply, and (f)(2) does not apply where the communication is acquired outside of the United States. So at most, we have a technical violation of a statute that clearly was not intended to cover communications leaving the United States, and the technical violation exists, if at all (as you say, we do not know the details) only because it may be technologically more feasible to aquire information just within the border rather than tapping an undersea cable. But, if the "airport" border exception applies in the 4th Amendment, why wouldnt that same border fiction apply in interpreting this act? It would seem reasonable to apply the same border fiction to both.
12.19.2005 5:42pm
FWD:
Isn't there also a question of the scope of the authorization made by the AUMF (presupposing the AUMF even authorizes surveilance)?

The AUMF is limited to "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons . . . ." So, what of the wiretapping of an individual (a U.S. citizen) who, as part of a Basque terror group (or pick another, more plausible group that uses terrorist tactics but that has not been linked to 9/11) is involved in plotting activities? Can there be any argument that the AUMF applies to that person?

Or, what happens with a somewhat tougher call--perhaps an individual who has been linked in some way to Hammas? Is the President's determination of a relationship to 9/11 subject to any later review by a tribunal? I'd assume the administration's answer would be "of course not" and that the President has discretion. But is the discretion boundless? Could the hypothetical Basque obtain review? Presumably, one argument would be that the discretion and judgment is unlimited and unreviewable because Congress did not explicitly build in any form of review. (Perhaps the detention opinions would support this?).
12.19.2005 5:45pm
Sully (mail):
I wish there were time to write a long response, but final exams will not allow it. In place of an argument, I'll just offer a few sources that Professor Kerr might use to supplement his thoughtful analysis:

(1) Check out the Whereas Clause to the September 18th, 2001 AUMF: "Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States … ." Presumably, Congress is referring to the same Article II powers that President Bush mentioned in his recent speech.

(2) On a related note, consider: “[U]nless Congress specifically has provided otherwise, courts have traditionally been reluctant to intrude upon the authority of the Executive in military and national security affairs.” Dept’ of Navy v. Egan; cf. Rostker v. Goldberg. On the issue of whether Congress has "provided otherwise," how does the AUMF relate to FISA?

(3) In general, see In re Neagle regarding the protective power of the President.

(4) Some commenters have been quick to accuse this President of being particularly prone to the aggrandizement of Article II power. Right or wrong, I think it's hard to justify such a stance without taking a look at OLC opinions from other administrations (including Clinton's, see, e.g., Somalia Opinion).

Sorry this is so disorganized -- I look forward to thinking about this more once finals are done, and to seeing what Kerr and the Commenters come up with!
12.19.2005 5:47pm
J..:
Wonderful analysis, Orin. (I'm not sure I agree with the 4th amendment analysis completely, but I'm no expert, haven't given it enough thought, and can't really comment beyond that. IOW, I can't add anything except to say that the exception is in danger of swallowing the rule.)

From a first read, this confirms the quick analysis by Marty over at Balkinization (wrt to FISA) and my (ill-informed) read of the Article II issue. The AUMF argument also can prove too much.

To clear up the terminology, the bottom line is that the actions are presumptively illegal -- and therefore a misuse/abuse of power -- though, if authorized (which it is not clear is the case), possibly constitutional.
12.19.2005 5:47pm
John Lederer (mail):
Pres. Bush at press conference today:

"So it's a program that's limited, and you brought up something that I want to stress, and that is, is that these calls are not intercepted within the country. They are from outside the country to in the country, or vice versa."


Just a slip of the tongue and he meant to say what the subsequent sentence says, or a fact that under your analysis would make the program legal?
12.19.2005 5:47pm
Anderson (mail) (www):
Prof. Kerr: Maybe I'm missing something, but it seems to me that an executive branch action can violate federal statutory law without violating the constitution.

I agree. I took you to mean that had Congress authorized such searches, they would be constitutional. On the facts as we have them thus far, this seems at least plausible. I'm assuming no purely domestic surveillance such as would fall under the Keith case.
12.19.2005 5:47pm
rbj:
Does the fact that we now have federal employees (TSA) searching our luggage/carryons at airports without warrants/reasonable suspicion etc., inform us at all? ISTM that that is a clear violation of the plain reading of the 4th Amendment, yet it hasn't been held unconstitutional. Not that I have a real problem with it (though I wish I could carry my Swiss Army Knife with me, I use it every day.)
12.19.2005 5:48pm
ech (mail):
IANAL, but here is where a loophole might be:
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;


What if the targeting is not by person, but by phone number or email address? Assume they know Osama's phone number and every call going to or originating from such number is intercepted. Same for email. The government wouldn't know in advance the person's identity, so no particular person is targetted. (If they did a normal FISA warrant would suffice, right?)

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. . . .

As others have said, such an intercept could be happening in other countries and by foeign nationals.
12.19.2005 5:48pm
Traveler:
John Lederer: Good catch. That would seem to confirm what I hinted at and "AF -- the other one" explained more fully.
12.19.2005 5:49pm
madisonian (mail):
Maybe I'm missing something, but it seems to me that an executive branch action can violate federal statutory law without violating the constitution. Eric, what constitutional provision do you think has been violated?

Indeed, we know from Dalton v. Specter, 511 U.S. 462, 472 (1994), that the Supreme Court most certainly does not accept "the proposition that every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution." On the contrary, the Court has "often distinguished between claims of constitutional violations and claims that an official has acted in excess of his statutory authority."
12.19.2005 5:50pm
Ken B:
Very thoughtful, thank you. I am not convinced on point in particular, that surveillance even of citizens who are agents of an enemy is not an inherent part of war. I do not think that history bears this out. Consider just the use of huffduff to track a transmitter during WWII.
12.19.2005 5:59pm
Anderson (mail) (www):
NJR: The devil may be in the (technincal) details. If the NSA was monitoring only where the communications were coming from and going to, but not monitoring the contents of the communication, would those communications even fall under FISA?

Sorry, but not relevant: Gonzalez:
The President has authorized a program to engage in electronic surveillance of a particular kind, and this would be the intercepts of contents of communications where one of the -- one party to the communication is outside the United States.
The whole thing is fascinating, in a depraved kind of way.
12.19.2005 6:03pm
Eric Muller (www):
If the President's actions lack a foundation either in statute or in Article II, then they are unconstitutional. Aren't they?

We'd have no trouble saying that government action was "unconstitutional" if it was congressional power that exceeded the scope of Article I.

We should have no trouble saying the same of this government action, even though it was undertaken by the executive in excess of his Article II powers.
12.19.2005 6:05pm
Jim Rhoads (mail):
I think ech has hit on the critical factual situation to which the NSA program may be directed.

With modern sattelite celphones, many carry such phones in this country which have phone numbers issued by non-US carriers.

A surveillance of calls coming, e.g., from a Bin Laden Lieutenant in Pakistan to such a celphone would not be properly reached by FISA unless the interceptor had knowledge that that phone was linked to a "US Person" located in the USA at the time the call's interception. The information in the intercepted call could be used for intelligence purposes until the receiver's identity were known to be a "US Person".

What in FISA prohibits interceptions under this fact situation?
12.19.2005 6:13pm
A.S.:
We should have no trouble saying the same of this government action, even though it was undertaken by the executive in excess of his Article II powers.

I think Eric Muller is mistaken. Truong and Butenko establish that conducting warrantless surveillance IS within the President's Article II powers in the absence of a statute prohibiting such conduct. That's not an issue.

Orin's question, as I understand it, is whether, even though conducting warrantless surveillance is within the President's Article II powers in the absence of a statute, the statute prohibiting such conduct (assuming that FISA does, in fact, prohibit such conduct) would override the President's power, thus prohibiting the President from engaging in such conduct.
12.19.2005 6:13pm
Anderson (mail) (www):
Eric Muller: If the President's actions lack a foundation either in statute or in Article II, then they are unconstitutional. Aren't they?

I thought Prof. Kerr addressed this with his discussion of the Keith case etc. They may be implied under Article II. What is an "unreasonable" search or seizure in the context of the GWOT? The SCOTUS seems to have left it open for there to be a broader sense of "reasonable" for extra-domestic surveillance in such a context.

The problem for the Prez is that FISA is meant to fill that gap, and he's kicked FISA to the curb.
12.19.2005 6:16pm
OrinKerr:
Eric,

I disagree. Beyond Madisonian's citation to Dalton v. Specter, 511 U.S. 462, 472 (1994), I think the case of Article I is different. Legislation is only valid under the constitution if it falls within the Article I power, so exceeding the Article I power renders a law unconstitutional. The President has a role in passing legislation -- signing it or vetoing it -- but complying with statutory rules after legislation had been enacted is a question of statutory law, not constitutional law.

To take a completely frivolous example -- hey, I just wrote the world's longest blog post, let me be frivolous -- imagine Congress authorizes the Department of the Interior to order 1,000 #2 pencils every year. The DOI doesn't follow the law on year, and instead orders 1,001 pencils. We would say that the pencil order violated the statutory authorization, not that it was "unconstitutional."
12.19.2005 6:17pm
Anomolous:
JohnAnnArbor wrote:
Echelon stores virtually every phone call made


As a practical matter, I doubt that very much.


I don't know if it is currently being done, but it is certainly possible to cheaply store a huge amount of voice traffic using commercial off the shelf equipment. Go to any computer electronics website. You'll see that you can get a 500GB hard drive for about $350 dollars. Let's round that up to $500 just to be safe. That turns out to be about $1 per gigabyte of storate. The digital vocoder in your cellphone operates at 8 kilobits/sec or 1 kilobyte/sec. Certainly cell phone sound quality should be good enough for most purposes. The costs to record one year's worth of continuous calling would be...

365 days/year x 24 hours/day x 60 minutes/hour x 60 seconds/minute x 1000 bytes/sec x 0.000000001 dollars/byte

...or $31.53. The average voice phone call lasts about 6 minutes, so that $31.53 buys you the equivalent of 87,600 individual calls. Finally, $31 million dollars buys you about 87 billion calls. It only gets more cost effective if you consider storing that data on tape instead of hard disks, and compress the data even further.
12.19.2005 6:21pm
A.S.:
So the argument, as I understand it, is that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power, a judgment made, I suppose, by the President himself.

I have been unable to find any caselaw in support of this argument.


Orin: there is at least dicta supporting this argument in the decision of the Foreign Intelligence Surveillance Court of Review case about the "wall" (In re Sealed Case No. 02-001):

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

(emphasis added) (Sorry, I couldn't readily find the citation - the quote is on p.48 and the link is here.)
12.19.2005 6:23pm
Dean Esmay (www):
Whether there's a technical violation of a particular statute, in this case FISA, strikes me as irrelevant. Sorry, it does.

Read strictly enough, FISA would pretty much make Project Echelon unConstutional much or most of the time. But clearly, Project Echelon has existed for decades, doing things FISA cleary says are illegal. The same project also technically violates several other laws and court decisions, yet it goes on unmolested.

It's pretty clear how: you have one of the other governments who's part of the project monitor the conversations you care about. That's the loophole they're almost certainly using here--and I fully applaud them for doing it.

The ultimate question comes down to what liberty or Constitutional rights of U.S. persons are being violated. The answer here is, of course, none. Echelon's been monitoring any out-of-the-country calls you've ever since at least the 1980s. Numerous examples of case law and other statues make it clear that the Feds cannot use data gathered from phone calls you made without a warrant, and the administration's made it abundantly clear that they do not use this to prosecute U.S. persons--they use it to locate and kill enemy combatants.

No problem.
12.19.2005 6:25pm
Karl (mail):
As Prof. Kerr found the USG brief before the US FIS Court of Review, I'm a little surprised he didn't find the court's opinion, which contains the following dicta:


It will be recalled that the case that set forth the primary purpose test as constitutionally required was Truong. The Fourth Circuit thought that Keith’s balancing standard implied the adoption of the primary purpose test. We reiterate that Truong dealt with a pre-FISA surveillance based on the President’s constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.


The Court of Review ultimately concluded:


The FISA court’s decision and order not only misinterpreted and misapplied minimization procedures it was entitled to impose, but as the government argues persuasively, the FISA court may well have exceeded the constitutional bounds that restrict an Article III court.


While it's dicta, the Court of Review's opinion suggests that it buys the administration's "inherent authority" argument. Which would explain why the FISA court largely went along with the "special collection program."
12.19.2005 6:25pm
Barry:
Professor Kerr:

You have three arguments why Congress' AUMF did not allow the Commander-in-Chief to eavesdrop on American jihadists.

i. "It seems to me that surveillance and wiretapping is pretty similar to interrogation: the point of both is getting information about your enemy."

Well both apples and oranges are fruits, but that doesn't mean they are the same. Indefinite interrogations in Guantanamo after you've caught the jihadists occur after the warrior has left the field of battle. That was not included in the AUMF. In contrast, the American Jihadists the NSA eavesdropped on are currently on the field of battle. Whether in Deerborn, Michigan, or Falls Church, Virginia, the jihadists are currently engaged in war. Yes, if we were to arrest an individual jihadist and then hold her indefinitely seeking information there would need to be other authorization. (For example, if the jihadist committed a crime the US attorney’s office may gamble with a criminal prosecution. Of course most of the jihadists are warriors, not criminals. The criminal prosecution option is usually not available with jihadists. See the al-Arian case.)

ii. “[I]t doesn't seem like wiretapping counts as a ‘use of force.’”

Come on, you can’t be serious. Does use of force only mean tanks, or horses. Does use of force only mean a particular machine gun, or a specific make of rifle. Clearly not. Just like there were signal corps during WWII intercepting messages—as an incident of war—so too the NSA intercepted messages of the jihadists – a well accepted accoutrement of war.


iii. “Congress passed the Patriot Act about a month after passing the AUMF”

Congress’ decision to enact a procedure that might be available under certain cases – where there is probable cause, for example – doesn’t diminish the broader grant in the AUMF—where there is no probable cause, for example.
12.19.2005 6:25pm
A.S.:
I beat you to the citation to the citation to the FIS Court of Review by TWO WHOLE MINUTES, KARL! :-)
12.19.2005 6:28pm
Mark Pickrell (mail):
I appreciate the Professor's work, but it looks like there needs to be more depth, from both a legal and a technical perspective.

Since I'm a lawyer, I'll leave the technical analysis to others. But the legal analysis is pretty easy — and probably a pretty good guide for the technical types of eavesdropping that Congress wants the President to engage in, in the first place.

Look at all for subsections of section 1809 and ask the question: based on the statutory language, what types of electronic surveillance are permitted? The statute proscribes electronic eavesdropping of: 1) wire or radio communications if they target "a particular, known U.S. person;" or 2) wire communications if the surveillance occurs in the United States; or 3) radio communication where there is a reasonable expectation of privacy (with other qualifiers that probably protect a myriad of eavesdropping techniques — not discussed here); or 4) a communication by neither wire nor radio.

So what's reasonably permissible, based only on the language and obvious structure of section 1809? 1) Wiretapping conducted physically outside the United States; and 2) radio interception of cell phone calls if the callers are not "particular, known U.S. persons."

I'll bet that these are the types of intercepts that we currently engage in. Remember: you have no reasonable expectation of privacy in your cell phone calls. (If you don't believe me, ask Charles and Camilla Parker-Bowles about Charles' envy for a particular feminine hygiene product — or certain Senators who have had their cell phone calls intercepted.) So long as our electronic surveillance is not targeting "particular, known" "U.S. persons," then sifting through cell phone calls (or targeting the calls of "particular, unknown" persons or "particular, known non-U.S. persons") is permitted (intentionally so, I would bet) under the plain language and structure of section 1809. That's probably the big enchilada. As for wiretapping outside the U.S., the Professor has covered that one thoroughly.

Therefore, because we know that the FISA court gets a lot of warrant requests for "particular, known U.S. persons," I'll bet that our current practices are confined to: 1) wiretaps outside the U.S. (say, along a trans-Atlantic cable in international waters), 2) domestic cell-phone "sifting," and 3) domestic cell-phone interceptions of "unknown" or "non-U.S." persons. Having "reverse engineered" from the blatant statutory loopholes, and having looked at public reports of the FISA-court warrants that have been sought to date by the United States, I am pretty confident that our current practices do not violate FISA (pace the Professor).

Maybe President Bush, and the many lawyers who have advised him on this subject, are right, after all. I say, "Shame on the New York Times." But the Times has no shame.

Mark
12.19.2005 6:38pm
Just an Observer:
Might someone suggest scenarios in which these legal questions might be decided in the courts?

Who has standing to bring an action? Only those persons who have been the targets of the NSA activity? If that is so, it is hard to see this matter being raised any time soon, let alone resolved.
12.19.2005 6:52pm
Daniellee (mail):
Re: the AUMF

Shouldn't authorization to use military force of necessity authorize gathering military intelligence? Communications from or to terrorists overseas or suspected terrorists or their supporters overseas would seem to me to be fair game intelligence information.

Are you saying that OBL, for example, can be wiretapped so long as he doesn't contact anyone in the US? Assume you are monitoring a phone in Afghanistan that he or Mullah Omar have been known to use. A call is made to country X. It is taped. They hang up and call the US. Call can't be taped? And we are supposed to use "military force" against that target wihtout that intelligence information?
12.19.2005 6:55pm
Dilan Esper (mail) (www):
Barry:

You shouldn't assume that just because the Bush Administration makes the argument that "the entire world is a battlefield" that it actually is one. Accepting that argument means junking well-established territorial restrictions on US power. Indeed, in its strongest iteration, it would mean that the President can basically assume the powers of a dictator-- imprisoning people without trial, confiscating guns, performing warrantless searches, torturing people, ordering summary executions, etc.-- even with respect to persons and actions on US soil. While it may be true that the AUMF applies to members of terrorist organizations responsible for 9/11 who are within the United States, that is very different-- and much more limited-- than assuming that the AUMF trumps all legal restrictions on the President's conduct within US territory or permits the same actions and policies that it would permit on a foreign battlefield.

Second-- and this goes beyond your post to something that I hear just about every defender of the Administration's policy say-- we have no idea WHO the targets of these wiretaps were. Indeed, the Bush Administration will fight tooth and nail to prevent us from ever knowing. And, of course, there is a very good reason, in general, for secrecy with respect to national security wiretaps. That said, however, I don't see how defenders of Bush can speak with certainty that these wiretaps were used against Al Qaeda members (or even "Jihadists"-- a category that includes may people who are not even covered by the AUMF). You guys have no idea who was being wiretapped-- neither do I, for that matter. And the possibility of the President ordering wiretaps against people who are NOT legitimate targets of surveillance is, of course, one of the main reasons we have a FISA court.
12.19.2005 6:57pm
PersonFromPorlock:
Just out of curiousity, do any of the laws being cited here contain penalties for their violation? I mean, fines or prison time? If not, then probably they will simply be ignored and ought to be ignored as empty pieties.
12.19.2005 7:03pm
Charlie:
I have to agree with Ken B. - most Americans are going to be just fine with surveillance of even citizens who are agents of an enemy during wartime - next issue?
12.19.2005 7:04pm
Anonymous1L:
Thanks for the great post Orin.

Two questions are still outstanding:
1. Why didn't the NSA just get warrants for these wiretaps?
2. Considering this was done domestically, why did the NSA do it instead of the FBI? Technical competence?
12.19.2005 7:06pm
Charlie:
Dilan Esper:

We certainly do "know" who the targets were - according to the President himself - those with "known al Qaeda ties and/or affiliates". Were you against Clinton's use of ESCHELON? FDR's spying on Americans during WWII?
12.19.2005 7:07pm
TWAndrews (mail):
No. Eschelon monitors calls in and outbound from the US, and only those using certain technologies. There is almost no long term storage capability in comparison to the volume of calls.

Uh. No. Echelon monitors communication globally.
12.19.2005 7:08pm
rayabacus:
What I haven't seen and would like some clarification on is this excerpt from Robbins at NRO
Congress wrote this law, they included reporting requirements. The attorney general must report to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence 30 days prior to the surveillance, except in cases of emergency, when he must report immediately. He must furthermore "fully inform" those committees on a semiannual basis thereafter, per section 1808 subsection (a). He must also send a copy of the surveillance authorization under seal to the so-called FISA Court as established in section 1803; not for a warrant, but to remain under seal unless certification is necessary under future court actions from aggrieved parties under section 1806 (f).

Appears that there are reporting requirements for Warrantless searches.
12.19.2005 7:09pm
Medis:
Anony1L,

The most obvious possible answer to #1 is that they didn't think they could meet the standard for getting FISA warrants.

Mark,

You seem to start with the assumption that all of the surveillance was allowed by FISA, and work back from there to what that surveillance must have been. But the Administration has not claimed that all of the surveillance was allowed by FISA. So, I'm not sure where you are getting that initial assumption.
12.19.2005 7:12pm
James Bell (mail):
To echo Just an Observer: assume for the sake of argument that the President's actions were illegal and/or unconstitutional. From a strictly legal perspective, exactly what can anyone do about it?
12.19.2005 7:13pm
Jay Louis (mail):
It is important to note that the Jackson concurrence in Youngstown Sheet &Tube v. Sawyer (343 U.S. 579; 1952) makes clear that:

"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 powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."

Therefore, if the President has committed statutory violations, the only way the President could win his case is if it is determined that Congress has no authority on these questions of domestic surveillance. It is patently clear that Congress can act when it comes to domestic surveillance of terrorists. Therefore, if the President has committed statutory violations, then the President's actions went beyond the bounds of his Article II power, and consequently his actions would be unconstitutional.

This NSA surveillance program is a very important constitutional issue because the vitality of the Constitution's separation of powers hangs in the balance. To quote Justice Jackson, "what is at stake is the equilibrium established by our constitutional system."
12.19.2005 7:17pm
Marvin (mail):
I can now see why the President, bypassed the court, and acted to protect---We can not wait for the tedious months of bickering over these points.
If the US govt was not monitoring a US Person, or if they immediately stopped monitoring once they learned they were monitoring a US person .. This program appears legal.
If they monitored a US person, intentionally without a warrant then the President might have broken the law..might.
I would rather have international calls monitored, instead of another 3000 dead.
the FISA Court did comment on this program, it declined to accept some evidence gathered, which caused the program to modified.
12.19.2005 7:17pm
mls (mail):
Prof. Kerr, I very much appreciate your thoughtful analysis. But I think the 4th amendment case is much weaker than you seem to. I agree that we need to look to whether national security searches are reasonable in the absence of a warrant or probable cause, and that that is still an open question in U.S. law. But I don't think even a broad reading of the border search cases will work here. If international telephone calls and emails happen at the functional equivalent of a border, then each home is a border! Revealing the contents of a conversation that happened in a home, simply because it will eventually cross a border, is an astoundingly broad reading of reasonableness, isn't it? Given that border searches are suspicionless as well as warrantless, you're essentially arguing that the 4th amendment does not apply to any international call placed in America. Would a Justice Scalia who wrote Kyllo buy that argument?
12.19.2005 7:17pm
Charlie:
Medis:

Another possible answer to #1 is that they could meet the standard for getting an FISA warrant, but did not want to to chance that becoming public.
12.19.2005 7:18pm
Barry:
Dilan Esper:

You and I clearly agree on more than we disagree on. Surely, Article II and the AUMF did not give the President absolute power to do whatever he wants. You listed specific things that allegedly he can't do. Let's analyze them:

i. Imprison[] people without trial.

Well, assuming the magistrate judge is okay with it, presumably he can hold people before trial. But I assume you mean we can't imprison people without probable cause? You're right, even with the AUMF he probably cannot. This is really the crux of the matter. The constitution says even though there are warriors in the United States, we need probable cause for an arrest. I agree with you. Another few attacks, though, and you can look forward to an amendment.

ii. Confiscat[e] guns.

Well, there is the Second Amendment, and the possible chilling effect on lawful gun ownership. Can the president create a "do not fly"-style "do not carry gun" list? Not so sure, he probably can.

iii. Perform[] warrantless searches.

Absolutely. The only remedy is at a suppression hearing, but this is not a criminal prosecution, this is a war. And even at the suppression hearing, the attorney general would argue (i) a warrantless search was reasonable notwithstanding the absence of probable cause; (ii) "reasonable suspicion" was present; (iii) Weeks doesn't attach in the national security context.

iv. Torturing people.

It depends on what you mean by torture, but the president probably cannot do that.

v. Ordering summary executions.

Absolutely he can. Look at the incident at the airport earlier this month. What do you think a war is? Boom, boom and the enemy or apparent enemy is dead. No judge, no jury, no appeal -- and all perfectly lawful.
12.19.2005 7:19pm
Charlie:
Marvin:

I would rather have international calls monitored, instead of another 3000 dead.


Agreed.
12.19.2005 7:20pm
Eric Muller (www):
Orin, there's a difference between a President's exceeding the power granted him under a statute (buying 1001 pencils when he's been authorized to buy 1000) and a President's disgregarding the congressional system and setting up a system to his liking (setting up his own pencil procurement program).

Isn't this case much more like the latter than the former? I would think that a President would need a much greater anchor in Article II to do the latter than he would to do the former. And he lacks it here.

So this is not at all a case of a President misapplying or overreading or pushing out past the limits of congressional policy. This is a case of a President rejecting congressional policy wholesale in favor of a system of his own creation. That's why, to my eyes, it's a bit underwhelming to describe this as a case about "complying with statutory rules after legislation has been enacted," as you do. It does not capture the essence of what the President has done here, which is to set up his own shadow program entirely within the executive branch.
12.19.2005 7:22pm
Anthony Leonson (mail):
If one accepts the premise that the President's actions were constitutional, doesn't that bring up the question as to whether Congress has the ability to limit executive power via statute (In this case FISA) without an amendment?
12.19.2005 7:26pm
Charlie (Colorado) (mail):
I did out the whole scenario on the previous post, but as someone who has operational knowledge of intercepts, I can tell you one reason you wouldn't pursue a FISA warrant is that time is of the essence in this kind of thing. if we captured, say, a phone number, we have at best a few days, and more likely only a few hours, before the compromise of the phone number is known. The probability of getting good intelligence obviously goes up the longer we can intercept; it follows inexorably that quick response is vital, and even a few days of FISA process could make the difference between useful intelligence and no intelligence.
12.19.2005 7:28pm
Barry:
All:

Here's a question.

Tomorrow morning the New York Times -- in violation of federal law -- is going to reveal more about our government's anti-jihadist surveillance. (See the Drudge Report). That crime is going to cause me damage because it will put me at greater risk of being murdered. Can I seek an injunction tonight to prevent Mssrs. Keller and Sulzberger from committing this crime?
12.19.2005 7:29pm
Eric Muller (www):

Charlie:


Marvin:

I would rather have international calls monitored, instead of another 3000 dead.


Agreed.

This may be the most pernicious meme that is circulating right about now. What is it that leads people to think that one must choose between these two things? Certainly not experience. International calls were fully monitorable under FISA before 9/11, and warrants were never refused. Yet 9/11 happened. Before buying into any sort of argument grounded in necessity, we should ask for a clear showing of how the limitations in FISA contributed to the inability to detect the planning of the 9/11 attacks.
12.19.2005 7:30pm
matty (mail) (www):
Is it significant that there is already a procedure in place to allow warrants for just these searches, even retroactively? Is there any review of the reasonableness of the President's belief, or is that completely a matter of Executive discretion?

The strong Yoo formulation of inherent executive in war time troubles me a great deal. I don't think we're ruled by evil would-be dictators, but I don't think that is a remotely safe assertion of power. Even if I myself got to make all of these decisions, I shouldn't have that authority.

Also, in Hamdi, O'Connor held that some sort of habeas was necessary to challenge the EC determination, right? Is there any limiting principle to the wiretapping at all?

I'm a law student, and I've studied some of these issues, but I would appreciate it if someone could direct me to any legal scholarship explaining: if the "War on Terror," once authorized as a War by the AUMF, gives inherent unreviewable plenary Executive authority to conduct "the war", and the Executive has unreviewable authority to determine what constitutes conducting that war, then is there anything other than repealing the AUMF that can limit it in any way?

I'd much appreciate any insight. While I don't agree with a lot of what this administration does, I think this formulation is unacceptable for whoever sits in the White House (and I think the "what if Hillary did this?" hypothetical is useful as well - I wouldn't want her to have this power, either). Maybe I'm too much of a Madisonian, but I don't think that the War On Terror as is will ever end. If 9/11 perpetrators = AQ, and the executive decides who's AQ, and any terrorist who ever acts is evidence that AQ is still around, when will the war ever end? One donation from a Colombian drug lord to bib Laden in 1998 would mean the War on Drugs is covered by the AUMF as well no? Terror is a tactic, not an enemy.

Anyway, sorry for the longest comment ever. I've been thinking about this a lot for class, and it freaks me out. I'm sort of attached to the checks, balances, and separation of powers, and I think that once you pick up a hammer, everything starts to look like a nail.

Thanks for the analysis, Professor. It is a rare pleasure to read a legal analysis which is not completely corrupted by complete hatred of Bush or the NYT.
12.19.2005 7:33pm
Jay Louis (mail):
Here's another key quote from Justice Jackson in his concurrence in the Youngstown decision (cf. my above comment):

"In view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction."

Justice Jackson was speaking of Harry Truman's seizure of the steel mills in order to avert a strike during the Korean War. I am inclined to believe that Jackson's language equally applies to President Bush's NSA surveillance program.
12.19.2005 7:35pm
Medis:
Charlie,

As an aside, as noted elsewhere, FISA allows emergency surveillance provided you get a warrant within 72 hours.

Anyway, you say, "Another possible answer to #1 is that they could meet the standard for getting an FISA warrant, but did not want to to chance that becoming public."

Are you suggesting that the FISC (the special court which issues FISA warrants) might leak the information? If so, do you have any knowledge that such a thing has ever happened?
12.19.2005 7:35pm
Charlie:
Eric Muller:

It has been reported that 8 FISA warrants have been turned down.

Medis:

An actual "leak" was not the only concern.
12.19.2005 7:39pm
Bob Van Burkleo (mail):
Charlie
Another possible answer to #1 is that they could meet the standard for getting an FISA warrant, but did not want to to chance that becoming public.

I think you are more correct here - in the history of the secret warrant court only one request had ever been turned down. What the Bush Administration wanted to avoid was an easy to access record of who was being tapped. It was done for the purpose of obfuscation and is being presented same: note Bush talking as if they couldn't get this information previously. Shoot, the Act even allows for surveillance to start before asking for a warrant. They could be doing exactly what they did do legally, but that would mean having a warrant trail.

This is about keeping secrets from the American people and eroding the system of checks and balances that protect them from excesses of government, not 'protecting' them from terrorists.
12.19.2005 7:42pm
Hugh59 (mail) (www):
I think there is a good deal of information that we do not have. Apparently, the Administration consulted with Congress about the monitoring program...so the revelation should not be a surprise to SOME of those in Congress who are complaining.

Also, as for the reasons why the Administration may not have sought FISA warrants, here is a quote from Byron York's column at NRO:

People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check." And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things.

Lawmakers of both parties recognized the problem in the months after the September 11 terrorist attacks. They pointed to the case of Coleen Rowley, the FBI agent who ran up against a number roadblocks in her effort to secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda operative who had taken flight training in preparation for the hijackings. Investigators wanted to study the contents of Moussaoui's laptop computer, but the FBI bureaucracy involved in applying for a FISA warrant was stifling, and there were real questions about whether investigators could meet the FISA court's probable-cause standard for granting a warrant. FBI agents became so frustrated that they considered flying Moussaoui to France, where his computer could be examined. But then the attacks came, and it was too late.

Rowley wrote up her concerns in a famous 13-page memo to FBI Director Robert Mueller, and then elaborated on them in testimony to Congress. "Rowley depicted the legal mechanism for security warrants under the Foreign Intelligence Surveillance Act, or FISA, as burdensome and restrictive, a virtual roadblock to effective law enforcement," Legal Times reported in September 2002.


Again, we don't know the details of this program. We don't know the procedures that were followed as far as how the communications to be monitored were selected, how they were monitored, and any post-monitoring oversight and supervision (as well as reporting to Congress).

Ultimately, if I were a law enforcement official chasing down terrorists, I might be willing to violate the law and risk the consequences in order to prevent another 9/11 and hope that I could rely on the "necessity" defense.
12.19.2005 7:43pm
Charlie:
All:

Bottom line - NSA is intercepting communication overseas involving members of an enemy military force with which the United States is at War. What exactly is the constitutional basis for a court warrant to be required before any military action, combat or intelligence?! Exactly where does Article III grant any court the right to approve or disapprove of military action, let alone establish a requirement for pre-approval. That is within the perview of the Commander-in-Chief, and Congress is free to cut off the purse strings any time it wishes to take that kind of political hit.

The only action that Courts supervise is the legal process. Thus any information gathered without a warrant cannot be used in any legal proceedings. Fine by me. The courts should use their right to exclude any evidence that is gathered though unapproved means.

Meanwhile, the President is free to gather military intelligence in order to more effectively direct military action in time of war. I don't remember any Court that issued a Warrant to the British when they cracked the Enigma code and listened in on the Germans. I don't remember any Court that issued a warrant to the US codebreakers that cracked the Japanese naval codes and led to the victory at Midway.

This is not an example of a President overstepping the bounds of his authority. This is an example of another group so ideologically focused on an argument that they fail to realize when they have long passed the point of reductio ad absurdum.
12.19.2005 7:43pm
Medis:
Charlie,

Then I am not sure what you mean. Can you explain?
12.19.2005 7:43pm
Christopher M. (mail):
Barry--

Here's a question....Can I seek an injunction tonight to prevent Mssrs. Keller and Sulzberger from committing this crime?

Here's the answer: No.
12.19.2005 7:44pm
Barry:
Matty:

You ask a great question. As it turns out there is a little known clause in the constitution that provides an out.

The obscure "election" clause is at Art. II, Sec. 1:

"The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected . . . "

Pretty crazy, huh?

As it turns out the Constitution leaves running the country up to an elected President (and an elected Congress). It sounds a little off the wall, I know, but according to the Constitution the media is not in charge. Neither is the Judiciary, for that matter. (The judiciary has a eensy, weensy, little, tiny role to play in the unusual situation where there is some confusion about what the Constitution means, and there is a case or controversy, and there is standing and all the rest of it. Aside from that extreme and unusual circumstance the only people who decide how this Republic works is the elected President and the Congress.)
12.19.2005 7:47pm
22state (mail):
What part of 72 hours don't you get? You can start the wire-tap and get permission later. If 72 hours is not enough if we really need weeks, months, even a year, ask for a change in the law. But, wait, we don't need no stinking law.

I'm shocked, shocked that so-called conservatives want unchecked uncontrolled executive power. What's next, blank search warrants, selling blank arrest/detention warrants to political supporters?
12.19.2005 7:47pm
Charlie:
Bob:

I don't think it is necessarily some nefarious plot - during World War II, the Allies would go to great lengths to make sure the Germans never realized that their codes were broken. The Allies would learn about U-boat positions, but wouldn't bomb the U-boats until they spotted the U-boat by some other means . . . otherwise the Nazis might get suspicious. Can you at least understand the rationale behind that?

There's a story about Winston Churchill and the bombing of Coventry: supposedly he knew the city would be bombed but could not warn its citizens and many perished. The story is apocryphal, but is a good indication of the extreme measures countries take to protect the secret that they can read an enemy's secrets.
12.19.2005 7:47pm
Barry:
Christopher M:

I'm not the government. I'm asking for civil relief. i.e. Judge, tell Mr. Sulzberger not to punch me.
12.19.2005 7:49pm
Charlie:
Medis:

Read my last 2 posts and let me know antyhing you don't understand.
12.19.2005 7:50pm
A.S.:
Jay Louis: as I posted above at 5:27 and 5:43, I agree with you that the Steel Seizure Case is relevant.

However, why do you think that Congress's power here should override the President's power? Jackson himself wrote only that the action "must be scrutinized with caution." Jackson did NOT say that Congress's act automatically overrides the President's power.

As I posted above, I am not so certain that this is a Category 3 case. I think that there is a good argument that the AUMF makes this actually a Category ONE case:

"When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate"

At the very least, Congress has acted ambiguously, by passing FISA but also passing the AUMF.
12.19.2005 7:54pm
Kangming:
"So the argument, as I understand it, is that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power, a judgment made, I suppose, by the President himself.
I have been unable to find any caselaw in support of this argument."

In United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), the Court struck down legislation precluding the introduction of a pardon (by former Confederates) in the Court of Claims (seeking to reclaim property seized by Yankee military units) in part because it impaired the Executive power to grant pardons. Likewise, legislation telling the President where to place military units would probably violate the separation of powers because placement of military units is the president's job by virtue of the Commander-in-Chief clause.

Wire-tapping of U.S. citizens, however, probably is not permissible without judicial oversight. As the Court said in response to Nixon's domestic wiretapping in 1972, "The Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government." In other words, like the detention of U.S. citizens seized on foreign battlefields, the wiretapping of U.S. citizens' communications likely cannot occur legally without oversight by the judiciary. Even in the context of a new "war on terror." As the Hamdi plurality explained, "Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake." So, the administration's claim to unilateral authority by virtue of Article II would likely be rejected (hence the SG's effort to punt the Padilla case?).
12.19.2005 7:59pm
Charlie:
Kangming:

I would be very surprised if Hamdi gets the same treatment from those sitting on the SCOTUS now - if he does, I would expect Bush to do his best to ignore that particular ruling.
12.19.2005 8:02pm
Bob Van Burkleo (mail):
Charlie:

That the goverment can keep secrets temporarily? Sure agree 100%. That's why the warrants are issued by a secret court. That it should avoid the process that would document what they did historically by avoiding the court entirely? The hallmark of 'nefarious' as far as governments are concerned.

Yes the government has the right to keep temporary secrets, but it don't have the right to avoid the systems designed to document what it does do. How many founding father quotes do we need know that relinquishing our rights to a secretive, overly powerful central government leaving us dependent on its operatives' 'good will' is an incredibly bad idea?
12.19.2005 8:02pm
Medis:
Charlie,

We cross-posted. I was specifically asking about this statement: "An actual 'leak' was not the only concern." My question is: if the FISC does not leak, what would be their additional concern?

A.S.,

I'm not sure I see the ambiguity. Did the 2001 AUMF implicity repeal or amend every federal law as the President deems necessary? If not, then why think it repealed or amended FISA and 18 USC 2511?
12.19.2005 8:02pm
Mike S.:
Note: The FISA court has turned down wire taps. I recall from researching a story I researched but never wrote about Judge Royce Lamberth, who heads up the FISA court, that he turned several down, irking those who thought he — who had proved a thorn in the Clinton Admin.'s side — would roll over for the Bush Admin.

He's an interesting judge. It's interesting how he has handled the Indian Trust case, but this is neither here nor there.

(Thanks, Prof. Kerr for the commentary in your post.)
12.19.2005 8:08pm
Charlie:
Bob:

There are STILL secrets classified from WWII - eventually it will all come out, though, so it is all "temporary" from a certain point of view. Did you see above that 8 FISA warrants have been turned down?

Medis:

The FISA Court is not the only party involved in said warrants - that's all I am hypothesizing.
12.19.2005 8:11pm
Kangming:
Charlie--
Hamdi is safely in Saudi Arabia attending college, but if he weren't, the addition of Chief Justice Roberts and possibly Judge Alito doesn't add up to five votes for Justice Thomas' view that no judicial review is warranted. Kennedy, Breyer, Ginsburg, and Souter all voted in favor of judicial review, and Scalia and Stevens said the government didn't have the power to detain a U.S. citizen as an enemy combatant at all.
12.19.2005 8:11pm
Jonakait (mail):
A few more wrinkles for the analysis. Hamdi did indicate that an American citizen could be held as an enemy combatant, but it also held that that citizen’s due process rights entitled him to have a meaningful opportunity to contest the designation as an enemy combatant. Does a citizen who has calls intercepted because the executive determines that he has links to al Qaeda have some sort of comparable right of review to the determination that those links exist even if wiretapping were somehow granted by the Joint Authorization? Hamdi seems to indicate that the President unilaterally and finally cannot make such a decision. The due process right recognized in Hamdi was a “flexible” one, but it exists.

The border search analogy is creative, but it has a major problem. In the Chinese Exclusion cases and elsewhere the Supreme Court has indicated that control of the borders is a fundamental aspect of sovereignty, but those cases stressed the congressional laws that had limited entrance into the country. Control over the borders ultimately depends upon congressional authorization. If Congress passed a law allowing free entry into the country, the executive would not be able to constitutionally conduct border searches. It is not an inherent power of the President to control the borders, but one that rests with Congress.
12.19.2005 8:14pm
Charlie:
Sorry, I meant Jose Padilla - just wait until Stevens and Ginsburg get replaced and THAT case gets ruled on ; )
12.19.2005 8:14pm
Medis:
Charlie,

The list of participants would be something like the FISC, the Federal Officer seeking the order, and the Attorney General. So, I am still not clear--what is your hypothetical concern?
12.19.2005 8:16pm
Charlie:
Jonakait:

Do you think the President's powers as Commander-in-Chief rest with Congress as well?
12.19.2005 8:17pm
Charlie:
Medis:

Congressional oversight of FISA, primarily.
12.19.2005 8:19pm
Wintermute (www):
Orin, I appreciate what you're trying to do. Even if we were writing on a clean slate what the law ought to be, we'd have some tough hairs to split; but we'll either go through another War Powers/Church era or we won't. I may comment on your next revision, or I may do it in email, because we're picking up some serious troll action in here. I will share something that stood out in the Wiki page I have open on Nineteen Eighty-Four in preparation for a blog piece of my own. Everyone can steal this; it needs to be spread around:

“Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the peacemakers for lack of patriotism and exposing the country to danger. It works the same in any country.” - Nazi Reich Marshal Hermann Goering, before committing suicide at the Nuremberg Trials
12.19.2005 8:21pm
Medis:
Charlie,

FISA only requires a report on the number of orders or extensions sought, and the number denied, modified, or granted. So, what is the concern?
12.19.2005 8:22pm
David Pittelli (mail) (www):
If Echelon was/is already monitoring international calls from or to the US, then what need was there for this "new" monitoring program? In what sense was it new at all? Something must be missing or incorrect in the accepted history of these programs.

On another note, I'd argue that even after the NSA finds out who holds a given phone, if they are tracking phone numbers chosen based on previous calls, then they are NOT tracking "communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person."
12.19.2005 8:23pm
Mona (mail):
Mr. Kerr, well done. But I would point out wrt White's discussion of Footnote 23 in Katz, that Justice Douglas w/ Justice Brennan joining in the concurrence, stated:

While I join the opinion of the Court, I feel compelled to reply to the separate concurring opinion of my Brother WHITE, which I view as a wholly unwarranted green light for the Executive Branch to resort to electronic eaves-dropping without a warrant in cases which the Executive Branch itself labels "national security" matters.

Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved they are not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate [389 U.S. 347, 360] and prevent breaches of national security and prosecute those who violate the pertinent federal laws. The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate.

12.19.2005 8:24pm
matty (mail) (www):
Barry,

Thanks. Very enlightening. An election is not a license to ignore the Constitution. If it were, we would have a much shorter and more easily interpreted document saying elections happen and not much else. And if the Executive can hide what it does, it makes it much harder to vote accordingly. If the President wants to do something the Constitution may permit but the law doesn't allow, there's a pretty easy remedy: getting Congress to pass a law. And if the courts force the Executive to go get one, that makes Congress all the more accountable as well. If they can get away with vague statutes like the AUMF that let them take credit when they like the results, or cast blame when they don't, and just worry about making sure they don't face competitive elections, I'd feel better knowing that pesky third branch is at least attempting to hold their feet to the fire.

And at least right now, absent a change, I'm pretty sure that the Court has reserved the authority to have final say over what the Constitution means (like the S5 Amd14 cases). They have the authority to hear cases and challenges alleging that the way the elected branches choose to run this country aren't in keeping with the Constitution and laws.

I know its a lot easier to just fight strawmen, but there really are a lot of people who honestly believe that we can protect our citizens using the means which have managed to preserve our Constitution so far. I very much don't want to die in a subway explosion, and I want our government to do everything it can LEGALLY to prevent that from happening, but I'm more concerned that the values we enshrine in our Constitution are more going to be harmed by ourselves than by terrorists.
12.19.2005 8:29pm
Dilan Esper (mail) (www):
Charlie:

1. How do we know that President Bush is telling the truth? He has had a tendency to generalize about who has been targeted in the War on Terror (for instance, saying that everyone in Guantanamo is dangerous and was a "bad person", when it turned out there were people who were there because they were in the wrong place at the wrong time). I don't trust him particularly-- why do you?

2. As for Clinton and FDR, I don't think that is really relevant. It seems to me that just about every modern President has claimed that the Commander in Chief clause allows him or her to do things that are plainly allocated to other branches or flatly prohibited in the Constitution, or things that Congress has plainly regulated through legislation. That doesn't mean that this is good constitutional interpretation. Rather, it just means that because of the political question doctrine and other reasons, they don't get the opportunity to get slapped down by the courts so they continue to assert them. Presidents assert lots of legal arguments that have no foundation in the Constitution-- remember Nixon's tapes? Clinton's "protective function" Secret Service privilege?

In any event, the current issue is not Clinton's use of ECHELON. It is Bush's current program. Changing the subject is not a defense to the current allegations.
12.19.2005 8:32pm
Sisyphus:
Eric Muller,

You seem to be repeatedly making a mistake which is quite common in understanding the separation of powers between the branches, which is treating their Constitutional grants of powers to be identical.

However, note that Article I begins "All legislative Powers herein granted shall be vested in a Congress of the United States." In contrast, Article II begins "The executive Power shall be vested in a President of the United States of America." Article III similarly begins "The judicial Power of the United States, shall be vested in one supreme Court." The legislative powers are limited to the enumerated powers of Article I, but the legislative and judicial powers are fully granted, with limits applied to those powers subsequent to the grant. This difference is quite important, it seems to me, as it implies that the President (and the Supreme Court) have all traditional powers of their respective portion of the government, unless the Constitution specifically limits them.

Executives are, to my knowledge, thought to have quite broad powers involving foreign intelligence gathering (dating from at least the time of Queen Elizabeth I). While I have little doubt that Congress can limit at least some of these executive powers under their control of spending and their power to regulate our land and naval forces (Art I, Sec 8), it strikes me as opposite of the broad granting of executive power in the Constitution to consider such acts unconstitutional even if they are statutorily prohibited.

Now it is true that the 4th Amendment could trump the grant of executive power in Article II in circumstances such as these, but in light of the Court's border search jurisprudence, this seems unlikely. Nor does it make much sense to think of the "people" referred to in the 4th Amendment as people outside the jurisdiction of the United States. That would essentially prohibit nearly all intelligence gathering and indeed, even much military action. I have little doubt that the Framers did not intend the 4th Amendment to apply to foreign nationals not in U.S. jurisdiction. Unless there is some reason to think otherwise, I think the broad grant of executive power in Article II makes this kind of intelligence gathering Constitutional, even if it may not be legal under statutory law.
12.19.2005 8:32pm
Bob Van Burkleo (mail):
Charlie:

8 warrant out of thousands - you aren't trying to present that every single one of the government warrants are presumptively 'correct'? that a few % of those they want to wiretap possibly shouldn't be? A handful of rejections show the system IS working, their working around those few so that they have carte blanche shows it is not.

If we weren't in a voluntarily initiated war in Iraq sold on false premises and using it to rationalize subsequent abuses of executive power, if because of this voluntary war massive amounts of money weren't being funnelled into corporations intimately associated with the current administration, and if tactics of obfuscation, propoganda and spin were the exceptions rather than the rule I might give them the benefit of the doubt.

But THIS executive branch administration working without input or oversight from the other two? "Danger Will Robinson Danger"
12.19.2005 8:42pm
AppSocREs (mail):
Thanks to all for an enlightening discussion of a complicated topic. It's amusing/thought-provoking to remember that FISA was intended as a major restraint on US intelligence and counter-intelligence activities. Prior to FISA, regulation of intelligence gathering was a lot looser. Now that FISA has been around for three decades, the more civil-liberties-oriented segment of the population seems to regard FISA as a potential threat rather than a protection.
12.19.2005 8:45pm
The Ace:
Congress was trying to give an exception for monitoring foreign governments (a1, a2, a3) but not terrorist groups (a4, a5, a6), so long as no citizens or lawful permanent resident aliens were being monitored. There are interesting questions of how that might have applied to Al Qaeda in Afghanistan, but I don't think we need to reach them. It's my understanding that the program monitored both citizens and non-citizens, so I don't see how the exception is applicable.


-You lost me here as I think you have read this exactly backwards.

Look at:
"a group engaged in international terrorism or activities in preparation therefore"

It's pretty clear that if someone is speaking to AQ, they are indeed an "agent of a foreign power" as defined as defined under subsection (b)(2)(C). Anyone who "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefore, for or on behalf of a foreign power"

Further, section 1801, subsection (i):
"United States person," (which includes citizens, legal aliens, and businesses, explicitly) "does not include a corporation or an association which is a foreign power."

Not sure how you arrived at the opposite conclusion.
12.19.2005 8:51pm
David Pittelli (mail) (www):
Wintermute,
When has Bush or a high official in his Administration "denounce[d] the peacemakers for lack of patriotism"?

In fact, it has been the other way around, whether you are counting explicit or implicit attacks on "lack of patriotism," as James Taranto covered extensively in 2004. For example:

"He went in before all the diplomatic solutions were extinguished," Gen. Clark, the former supreme commander of allied NATO forces, told more than 400 supporters gathered Monday night at the Westin Galleria in Dallas for a fund-raiser. "That is not patriotic. That is sheer, bad leadership.

"I'm tired of Karl Rove and Dick Cheney and a bunch of people who went out of their way to avoid their chance to serve [in the military] when they had the chance," Mr. Kerry declared in April [2004].

And Howard Dean flatly stated: "John Ashcroft is not a patriot."

Wintermute, I call you out as the Godwin's law-challenged troll of this thread, and I challenge you to find any similarly explicit and high-ranking patriotism-questioning from the other side.
12.19.2005 8:53pm
Josh Valiant (www):
I personally believe Bush is an intelligent man, but there is no way that he could truly have a mastery of what the law says, and thus he has to rely on his advisors for legal expertise for some of the decisions he makes. I swear his advisors are trying to put him in an early grave. However if I was in his position, I can't promise that I wouldn't have done the same thing. On one hand I could propose a revision to FISA but then there's the possibility Congress would shoot it down or even void the entire act altogether. I can't go through the normal process because the terrorists aren't going to spend 6 months twiddling their thumbs while I'm waiting for a warrant to be approved. The only thing would be to continually file emergency wiretap requests so I could go ahead with the surveillance while the judicial review takes place afterwards. This to me would have been the most reasonable course of action, but if that wasn't a feasible option either, the only option left is to launch out into the grey void and authorize the wiretaps without a warrant, then take the flack for it. I'm in the position that if I don't do so, and an attack ensues that could have been prevented as a direct result of using these wiretaps, I'll bet nobody is going to be commending my virtuous adherence to the federal statutes then.

Why anybody would want the job of the Presidency is beyond me.
12.19.2005 9:05pm
Nat Echols (mail):
Charlie:

I don't remember any Court that issued a Warrant to the British when they cracked the Enigma code and listened in on the Germans. I don't remember any Court that issued a warrant to the US codebreakers that cracked the Japanese naval codes and led to the victory at Midway.

Both of these were surveillance of foreign powers, and were well within the powers of existing intelligence agencies. Bush's orders explicitly permit surveillance of US citizens. I understand the reasoning for this, but the legal distinction is still important.

I would be very surprised if [Padilla] gets the same treatment from those sitting on the SCOTUS now - if he does, I would expect Bush to do his best to ignore that particular ruling.

I agree, although I suspect we differ in our opinions on whether this is either constitutional or a good idea in general.

I'm asking for civil relief. i.e. Judge, tell Mr. Sulzberger not to punch me.

That's still prior restraint. I suspect there's also a fairly explicit legal doctrine regarding civil suits, e.g. you probably have to demonstrate direct personal harm. You're asking to sue them on the basis that their release of this information might indirectly hurt you. By that reasoning, I should be able to sue gun vendors because someone might buy a gun and kill me with it.

I found Orin's post very enlightening as well. I'm more-or-less convinced that what happened *could* be legal, but I'm very concerned by the lack of oversight, considering the administration's continued attempts to deny any sort of oversight whatsoever. I'm also very troubled by their incessant attempts to set a precedent for expansive presidential power, and their behavior strongly suggests that the motivation for this wasn't a dire need for secrecy but rather a perceived need to gut judicial and congressional oversight.
12.19.2005 9:05pm
Mark Buehner (mail):
I contend it is the wiretapping nature of this that is illogically getting people's backs up. If a letter from a OBL to the local Imam was intercepted at the border, does anybody doubt the governments perogative in seizing it without a warrant? Signals intelligence is even more compelling, as it is a minute to minute thing. Taking that a step further, if Congress mandated that no mail should ever be seized at the border, would it still not fall within the Presidents Article II powers to intercept it? What if instead it was a letter from Joseph Goebbels to a German immigrant? Or Bobby Lee to a souther sympathizer?
12.19.2005 9:17pm
anonymouslawyer (mail):
Professor Kerr, let me add my thanks to your considered and thoughtful post.

Following up on the comments of some others here, I'm curious whether you think the Foreign Intelligence Court of Review's decision provides supports to the Administration's view that the President may, indeed, have the Article II authority to act in derogation of the FISA. See In re Sealed Case, 310 F.3d 717, 742 (FICR 2002) ("The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.").

Thanks again for providing such a enlightening discussion of these issues.
12.19.2005 9:25pm
John Herbison (mail):
There is a basic Fourth Amendment principle which has not been given appropriate emphasis here: a search or seizure which is effected without a warrant is presumed to be unconstitutional, and the burden of justification is on the governmental actor who proceeds without a warrant. In addition, the Congress here (in response to abuses occurring in administrations of both political parties) has codified a warrant requirement, subject to an emergency exception requiring that a warrant be applied for--not necessarily obtained--in a Star Chamber tribunal within 72 hours after a surrepetitious interception is begun based upon an alleged emergency.

In light of the above, who is willing to accept as justification for disregarding the warrant requirement the ipse dixit assertions of one who claims that his favorite philosopher is Jesus the Christ, but who has nonetheless spent his career sucking up to the kind of folks whom that favorite philosopher drove out of the temple?

What if the next commander/cheerleader-in-chief unilaterally announces a war on firearms?
12.19.2005 9:28pm
David Pittelli (mail) (www):
A "war on firearms" is a metaphor. The AUMF was not.
12.19.2005 9:36pm
MarkW (mail):
On the issue of denials of warrants by the FISA court, the Electronic Privacy Information Center maintains data on this very issue. During the four years of President Bush's first term, the government sought over 5600 warrants, of which a total of 4 were not granted by the court. That's an approval rate of over 99.9%.

Here's a link to the relevant data:

http://www.epic.org/privacy/wiretap/stats/fisa_stats.html
12.19.2005 9:37pm
Eric Muller (www):
Sisyphus, you prove way too much. If the President has the robust Article II power that you describe, then I have a hard time seeing how Congress can constitutionally constrain it through FISA. Is your argument that FISA is an unconstitutional restraint of the President's power to engage in warrantless eavesdropping?
12.19.2005 9:43pm
The Ace:
There is a basic Fourth Amendment principle which has not been given appropriate emphasis here: a search or seizure which is effected without a warrant is presumed to be unconstitutional, and the burden of justification is on the governmental actor who proceeds without a warrant

Not the case.
"Unreasonable"

You go through a warrantless search at the airport.

Also, look at what the SCOTUS has said in the post regarding the difference between criminal investigations and national security.
12.19.2005 9:49pm
mls (mail):
The border search issue seems a complete red herring. Border searches are allowed because of sovereign power to control who and what crosses the border. The idea is that we can BLOCK things from crossing our borders, so we have to search for those things to block. Now we're using it as justification to search for thing we have no intention of blocking, and in fact things (conversations) that we hope will continue for so long as we monitor them!? Whatever dicta might be found in any border case about illegal substances, smuggling, illegal aliens, etc., is just completely inapposite. We're missing the forest for the trees here. Border searches are kind of a species of "special needs" search, and have to be limited by what justifies them, no? And what justifies them is preventing our borders from being crossed with contraband, dutiable goods smuggled to avoid payment of duty, entry of undocumented persons, etc., right? If border searches are justified as general crime control, we run afoul of Edmunds, Ferguson, etc., which justify special needs searches.

And with all due respect, Professor Kerr, if Ramsey is the most persuasive case on the border search issue here, then we have to junk the border search justification -- Ramsey just cannot support it in my opinion. There, we were dealing with a fairly conventional border search issue -- smuggling of contraband. The court simply held that you can't mail over the borders what you can't carry over the borders, so we can check mailed packages for contraband merchandise to make sure you aren't circumventing border restrictions.(Though this case involved a "letter-sized" package, it seems pretty clear that the reasonableness of the search keys off the federal statute that allows search of packages, but doesn't allow for the reading of letters. Here we saw small quantities of illegal drugs smuggled in through "letters," and no one claimed any authority to read content).

In "searching" the phone conversations here, isn't it more like reading the contents of private international letters than it is opening private international letters that seem to have merchandise in them?

The Ramsey court quoted with approval from United States v. Thirty-seven Photographs, 402 U.S. 363, 376 (1971):

"But a port of entry is not a traveler's home. His right to be let alone neither prevents the search of his luggage nor the seizure of unprotected, but illegal, materials when his possession of them is discovered during such a search. Customs officials characteristically inspect luggage and their power to do so is not questioned in this case; it is an old practice and is intimately associated with excluding illegal articles from the country."

Indeed, this is what border searches are about. And when you claim that a person's home is a port of entry, that the border includes a person's home where a private telephone call is made, you turn the border search doctrine completely on its head.
12.19.2005 9:54pm
The Drill SGT (mail):
I'd like to support NJR and Traveler. e.g. This could be traffic rather than content analysis, or alternatively under FISA it isn't defined as:

(f) “Electronic surveillance” means— (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

As I read the FISA section above, we never did any “Electronic surveillance”

1. we targeted foreign phones, that called US locations. We never knew if the receiving phone was operated by a US Person, therefore we NEVER did (intentionally targeting that United States person,)

2. The intercepts were likely by satellite of other satellite down or up links and then sent to the UK. Hence we NEVER did (acquisition occurs in the United States)

3. we only intercepted international calls, hence we NEVER did (if both the sender and all intended recipients are located within the United States)

4. we NEVER Bugged any computers.

I can't prove it, but I could construct a useful operation and stay out of range of the FISA prohibitions and do either traffic analysis or perhaps content analysis if I did the intercept and analysis offshore.
12.19.2005 9:59pm
Kent (mail):
Why do so many commenters still refer to 9/11 as somehow changing the rules? A few thousand nuclear warheads launched by the Soviet Union would have, in all likelihood, ended the American experiment with democracy along with millions of lives. Now THAT was a threat.

The very fact that the president and his advisors felt they could -- and, more importantly, should -- hide the true nature of this program (perpetual warrantless eavesdropping without objective oversight or review) should send a shiver down the spine of any conservative.
12.19.2005 10:04pm
matty (mail) (www):
"A "war on firearms" is a metaphor. The AUMF was not."

No, but the "War on Terror" is. There has been terrorism around since the Spartafascists burned Troy. (Ok, that was probably an actual war.) Terror is a tactic. War powers are supposed to be used in emergencies, and the founders were very nervous about their use. Yes, September 11 was an emergency. Yes, we went to war with the Taliban government in Afghanistan. I'm not comfortable with the War on Terror being used as justification now because I don't see why or how it will ever necessarily end.

And Orwell's probably no better than Nazis in terms of nuace, but shouldn't we all be worried about a state of declared perpetual war as well as worried about terrorists? The executive is ultimately responsible for defending the country. It was assumed it would be overzealous in this, so there are a number of checks, such as requiring war to limit it to emergencies. And these tools are slippery slopes - once you have a tool, you want to use it.

If the Exec can listen to the calls of Americans without Congressional authorization because it believes it necessary, it is all the more likely that we'll see mission creep into areas where people are less comfortable, like the War on Drugs. Its likely true that some lefties want to use anything and everything possible only to try and damage the administration. Instead of refliexively accusing them of hating America and defending any and everything the President might do, maybe it would be more useful to point out that while their cries of "impeachment!" are partisan and extreme, that they may have some valid concerns. That managed to get rid of Harriet Miers. Civilization won't crumble just because the administration doesn't get to do every single thing it wants.

Prof. Kerr, sorry to be partly responsible for going off-topic. I really do appreciate this site, as I don't find all that many places to read arguments I often disagree with, but am always challenged by.
12.19.2005 10:07pm
Mark Buehner (mail):
"What if the next commander/cheerleader-in-chief unilaterally announces a war on firearms?"

Now we come to the political problem and in my opinion the reason this is even an issue. The bulk of the out of power political party doesnt believe the war against Al Qaeda (GWOT) as a war in the same manner as WW2 or even the Cold War. Politically they can never admit that, but it shows through in their arguments. I find it hard to believe anyone would be making this an issue if the intercepts were from Hitler or Ho Chi Mihn. Regardless, the United States was attacked by an international organization, and we are intecepting messages originating over seas from that organization to individuals on US soil.

Riddle me this: if a Russian sub unloaded a commando team into Alaska, would the administration need a search warrant to intercept messages between the Soviet Union and the sabeteurs? What if they had work visas, would it matter?
12.19.2005 10:09pm
The Ace:
The very fact that the president and his advisors felt they could -- and, more importantly, should -- hide the true nature of this program (perpetual warrantless eavesdropping without objective oversight or review) should send a shiver down the spine of any conservative.


They certainly didn't hide it from Sen's Levin, Daschle and Rockefeller.

???
12.19.2005 10:12pm
PantsB (mail):
I do not think the Hamdi case can reasonably be applied here. The NYT reported:
"In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said."

I don't think a reasonable case can be made that spying not only on those who may have spoken to members of our enemy but people who may have spoken to those who may have spoken to people who may have spoken to our enemy can be called an act that is "fundamental and accepted an incident to war." Indeed, to do so would certainly be neither fundamental nor accepted nor an incident to war. Capturing the enemy can certainly be called that. Spying on one's own people because there's some slight chance that possibly they may be working with the enemy does not seem to fit into that category.
12.19.2005 10:19pm
Mark Buehner (mail):
Border searches are allowed because of sovereign power to control who and what crosses the border. The idea is that we can BLOCK things from crossing our borders, so we have to search for those things to block.

Including information I take it? Now if someone sends me via Fed-Ex a laptop from Pakistan and the correspondence directed at me is subject to search even though i never stirrid from my house, in what way does that differ from taking the same guys cell phone call?
12.19.2005 10:19pm
Robert Romano (www):
I can't really approach with much legal clarity, not being a lawyer, so I'd state that philosophically and what little I know of the law, I'd apply this sort of standard to this issue (from my own blog): a "very specifically enumerated principle of security, wherein privacy of an individual ought not be protected by the government if that individual either poses or possesses information about a clear and present danger to the peace and security of our society, whether it be through foreign arms and influence, or like dangers arising from domestic causes. It is therefore unreasonable to expect the Federal government not to intercept communications between domestic terrorists or those connected to such individuals and international terrorists, their sponsors, and those connected to both in the same capacity as they would if those communications were based solely overseas. Just because these activities were not conducted with written warrants issued by a court, per se, does not mean they were not based on probable cause nor that they were without warrant. To use an analogy, if a police officer witnesses a crime being committed, it would not be necessary for that officer to run to a court to obtain a written warrant in order to make an arrest. He would need to act quickly and decisively to capture the perpetrator based on probable cause. Similarly, if the government can obtain intelligence to do with a potential attack, or those who have perpetrated or would commit attacks against the United States, it is reasonable to gather that information based on such a clear link. According to the President, 'Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks...' This is probable cause."

In addition, to do with whether the AUMF would authorize the surveilance, I wrote, "One vital aspect of waging war is gathering intelligence on potential targets, and that is precisely what this program was doing, and should continue doing. The information being gathered by the National Security Agency under this program creates actionable intelligence which is being used in the war effort. There is no reason its functions should have been disclosed to the public, when secrecy is precisely what intelligence gathering depends on. Whether or not an attack is imminent, in our war effort against transnational terrorism, gathering intelligence on potential attacks, those who would perpetrate such attacks, and those individuals connected to both is an activity which must and will continue in spite of disclosures of those activities."

Are these good standards, though? I certainly think they'd help fight just about any war and to gather information on targets... But that's my view. The President has an inherent power to wage wars which have been authorized, declared or undeclared. I think they would fall in with the standard you cited whereby the act was "so fundamental and accepted an incident to war..."

What war is without intelligence gathering?

Also, I don't think the FISA can pre-empt the Constitution itself, and the President's inherent powers as Commander-in-Chief. The NSA is a part of the DoD, and therefore under the President's direction, and the FISA cannot prohibit him to authorize these sorts of actions when they are made under the authorization to use force. As Commander-in-Chief, the President must make the ultimate determination, consistent with his powers as the sole executive (we only get one), to determine what is necessary and appropriate in accordance with the statute. Therefore, the AUMF would have to be an exception under the FISA, or else the FISA would be unconstitutional.
12.19.2005 10:26pm
Ginko Bilboa (mail):
The legal analysis is probably correct, although my political prediction is the President easily skates on this provided there were no dirty tricks or abuse and the facts play out as the President has described them. Many people would be upset if they were being spied on by the NSA (or if the President were using the NSA to spy on opponents), but would welcome the NSA monitoring emails between known al Qaeda operatives in Pakistan into the United States. Hey if someone was exchanging emails with someone in Pakistan discussing bombs or potential targets, I would hope a NSA computer would raise a flag. Heck--Yahoo and Google do a lot more intrusive monitoring and spying on all of us than that--and I doubt the NSA has ever sold my email address to some internet spammer. If the list of enemies is based off suspects reasonably related to al Qaeda/terrorism and their links in the U.S.--the President is fine.
12.19.2005 10:30pm
Nat Echols (mail):
Mark:

The bulk of the out of power political party doesnt believe the war against Al Qaeda (GWOT) as a war in the same manner as WW2 or even the Cold War.

Well, it's certainly not a war in the manner of WW2, because there hasn't been an actual declaration, and I'd argue that it isn't even close to the amorphous Cold War, because the president's definition of the GWOT is so flexible (Iraq). I'll even admit that I think this is essentially a law enforcement operation, not a war. That doesn't mean I don't like the idea of dead terrorists any less than you do, but I have a different idea of what rules we should be using.

Does anyone actually think we're going to be personally living under Islamofascism, or have our territory directly invaded by an Islamic army? I don't. They're dangerous and need to be killed, but it's not the same as Nazism or Communism.

I find it hard to believe anyone would be making this an issue if the intercepts were from Hitler or Ho Chi Mihn.

Discarding the latter example (because I think Vietnam was a mistake), I would have no problem with this if a) the war was better defined, b) the administration hadn't shown a consistent disregard for (or at least, a very novel interpretation of) separation of powers, c) the administration hadn't shown a consistent disregard for existing rules on treatment of US citizens/prisoners, and d) the administration didn't seem hellbent on getting judicial precedents established for this kind of behavior. The US system of government is not based on trust.

Even by a reasonable definition I don't think the GWOT ever be over in our lifetimes; in an open society we'll always have to deal with these lunatics at some level. Good to think about when we debate what are the proper restraints on executive power.
12.19.2005 10:31pm
Ginko Bilboa (mail):
Plus, given all the stuff past presidents have done during war (and been given pretty much a free hand by both Congress and the Supreme Court)--it seems unlikely merely monitoring traffic between potential citizens and known al Qaeda operatives is going to be held to be a serious infraction--provided the intent was pure. If the Administration engaged in any dirty tricks (and there is no evidence whatsoever yet to suggest that is the case) then all bets are off.
12.19.2005 10:35pm
The Ace:
From the Washington Post:

high-ranking intelligence official with firsthand knowledge said in an interview yesterday that Vice President Cheney, then-Director of Central Intelligence George J. Tenet and Michael V. Hayden, then a lieutenant general and director of the National Security Agency, briefed four key members of Congress about the NSA's new domestic surveillance on Oct. 25, 2001, and Nov. 14, 2001, shortly after Bush signed a highly classified directive that eliminated some restrictions on eavesdropping against U.S. citizens and permanent residents.


Some "secret" huh?
12.19.2005 10:38pm
Ramon:
This whole discussion reminds me of the question I receive as a criminal defense lawyer: "Is it legal for cops to do ___???" The answer is normally "no", but that doesn't end the calculus. EVERY lawyer and police officer knows that law enforcement wire taps well beyond any warrant. The only issue for them is: when can they get a wiretap for a particular discussion they believe will become admissible evidence against a defendant? If they didn't get the warrant, it was unconstitutional and........ inadmissible. So, if the DOJ/CIA/DOHS was wiretapping people in the United States - citizens - without a warrant, the end effect is, they can't get that information into evidence against that person in court (most likely, depending on the judge).
Unfortunately I don't believe there's any recourse beyond the shock(!!!) and outrage (!!!1) by the usual suspects.
12.19.2005 10:45pm
Mark Buehner (mail):
Well, it's certainly not a war in the manner of WW2, because there hasn't been an actual declaration,

“That the President is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any further acts of international terrorism against the United States by such nations, organizations or persons.”


I'll even admit that I think this is essentially a law enforcement operation, not a war.

I certainly dont begrudge you your opinion, but we are in a Congressionally authorized state of war, and hence it is the President's opinion on how to prosecute the war that matters under Article II.
12.19.2005 10:47pm
mls (mail):
I wrote in part: Border searches are allowed because of sovereign power to control who and what crosses the border. The idea is that we can BLOCK things from crossing our borders, so we have to search for those things to block.

Mark Buehner responded : Including information I take it? Now if someone sends me via Fed-Ex a laptop from Pakistan and the correspondence directed at me is subject to search even though i never stirrid from my house, in what way does that differ from taking the same guys cell phone call?

I'm not sure it would include "information." [And I'll ignore the Fed Ex issue for now!] The closest we've got is the Ickes case Prof. Kerr cites -- which is a 4th Cir. case, not a supreme court case. And in that case the search actually happened at the actual border between the U.S. and Canada. And the Customs officials in searching Ickes' van had already run across child porn and placed him under arrest before looking through 75 disks and the hard drive of his computer. So they weren't searching the computer for information, but for contraband. [The court rejects a first amendment argument, and I'll leave it to others to weigh in on any first amendment distinction between information and contraband.]

No doubt stopping the importation of child porn into the U.S. is a pretty typical border search case. I don't think Ramsey or Ickes stands for the proposition that the government can open international letters and read them, consistent with the 4th amendment. Whether it is reasonable in 4th amendment terms to search that laptop from Pakistan for information related to terrorism isn't answered by the border search authority -- we then have to talk about the only real justification possible for the NSA spying, and that is the national security exception.

I kind of feel like I'm reading bad student exams -- who cares if I properly justify this search as an auto exception case when the police would get it all via inventory anyway?! But trying to rely on border searches here distracts from the necessary argument about whether there is a national security exception to the usual 4th PC/warrant rubric, what the scope of the national security exception would be if it existed, and whether these NSA searches would fall within that exception.
12.19.2005 10:51pm
Brett Butler:
jonakait, Buehner, mls—DOJ (Orin in previous years?) would seem to agree with you that he is overreaching with the border search argument here. While the border search cases may authorize scanning everything off of a laptop transported physically (Orin's article on electronic searches and seizures got me thinking whether a copy of such devices would even be a "search"), the issue in the current matter appears to be classic Title III or FISA interceptions. Assuming that's correct, here's what DOJ Computer Crimes says about using the border search exception in such cases:

"Importantly, agents and prosecutors should not interpret Roberts as permitting the interception of data transmitted electronically to and from the United States. Any real-time interception of electronically transmitted data in the United States must comply strictly with the requirements of Title III, 18 U.S.C. §§ 2510-2522, or the Pen/Trap statute, 18 U.S.C. §§ 3121-3127. See generally Chapter 4. Further, once electronically transferred data from outside the United States arrives at its destination within the United States, the government ordinarily cannot rely on the border search exception to search for and seize the data because the data is no longer at the border or its functional equivalent. Cf. Almeida-Sanchez v. United States, 413 U.S. 266, 273-74 (1973) (concluding that a search that occurred 25 miles from the United States border did not qualify for the border search exception, even though the search occurred on a highway known as a common route for illegal aliens, because it did not occur at the border or its functional equivalent)."

12.19.2005 10:59pm
Mark Buehner (mail):
Hmm, i'll bow to the two of you on the border crossings argument. That being said, it takes us back to the governments interest in monitoring communications between enemy organizations and individuals on US soil during a declared state of war. Any insight?
12.19.2005 11:06pm
OrinKerr:
Brett,

The author of that DOJ computer crimes discussion is obviously a total idiot. Oh wait, that was me. Hmm.... Fortunately, I don't think that paragraph is inconsistent with the argument I made today. It all depends on how the surveillance is done, and I think the United States v. Ramsey case I link to in my update is pretty close here. In any event, as I wrote in the original post, it's not a slam dunk, but I do think it's a pretty plausible argument.
12.19.2005 11:17pm
Hugh59 (mail) (www):
Well, the liberals are doing their best to convert the NSA monitoring program, a program reviewed by the Office of Legal Counsel and by Congress, into a scandal. Take a look at what Jonathan Alter at NEWSWEEK has to say:

Finally we have a Washington scandal that goes beyond sex, corruption and political intrigue to big issues like security versus liberty and the reasonable bounds of presidential power. President Bush came out swinging on Snoopgate—he made it seem as if those who didn’t agree with him wanted to leave us vulnerable to Al Qaeda—but it will not work. We’re seeing clearly now that Bush thought 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War.

Yes. A President focused on protecting the American public from attacks by terrorists from overseas has run afoul of the liberal mainstream media's sense of morality. The media will try to present this monitoring program in a light that will trigger a sense of outrage in Americans, who generally don't like the idea of the government snooping around in their private dealings.

We don't know the procedures followed by the agents carrying out this program. We don't know how specific communications were chosen for monitoring. But that does not matter. The MSM is going to howl about the very fact of the monitoring...and if it turns out that it was highly constrained and Congress was briefed...who cares...they want to bring Bush down.

And just look at how Alter is fantasizing:
This will all play out eventually in congressional committees and in the United States Supreme Court. If the Democrats regain control of Congress, there may even be articles of impeachment introduced. Similar abuse of power was part of the impeachment charge brought against Richard Nixon in 1974.

Alter has already convicted this President, even though he has no idea of what actually happened.

Odd thing is, American may not respond the way the liberals want. A peek over at the Volokh Conspiracy shows a split. Some people are angry; others wonder what the big deal is. I suspect that there were appropriate procedural safeguards and that these warrantless "searches" will turn out to be legal and justified. But that will not be the end of the analysis. The liberals will do their best to create negative political fallout from this program, regardless of its legality. No doubt, blogs and websites will be filled with all kinds of fantasies about what this program entails.

3,000 American died on 9/11 because the Justice Department would not allow the FBI to search the computer hard drive of Zacarias Moussaoui. What do the liberals want? "Search warrants" before each and every bombing run by the US Air Force? Reading "Miranda" rights with loud speakers during battle to enemy soldiers?

The liberal argue that the FISA was good enough and that there was no excuse for avoiding its warrant requirement.
So, we had a monitoring program that was closely monitored by the Attorney General or the President...a program that members of Congress were briefed about.

There is a real scandal here...somebody at the CIA or the NSA is leaking copious amounts of highly classified information to the NY Times and the Washington Post. This needs to end. It is high time that a full investigation be conducted to identify the leakers and have them face criminal charges.
12.19.2005 11:20pm
The Original TS (mail):
Ramon has an excellent point.

Let's suppose this program is illegal and unconstitutional. What's the remedy? Who's the plaintiff? In theory, there'd be a civil remedy available but first a plaintiff would have to find out he or she was being monitored. Since the this is "one of the most classified programs undertaken by the government" there's not much chance of that.

To the extent they get good leads on foreign "terrorists," the tip can be passed along or used and no one will ask where it came from.

The only time this will become an issue is in a criminal trial in the U.S. But, once again, to the extent the program was secret, the government could easily obfuscate the source of its original tip and no defendant would ever know. Indeed, to the extent that someone else's conversation provided the original tip, the defendant wouldn't even have standing to move to exclude.

It's a different story now, however. Even as we speak, Padilla's attorneys are preparing a motion to force the government to reveal whether any of Padilla's conversations were discovered this way. One of the reasons the Feds didn't want to use FISA for this is that FISA has express provisions covering supression and supression hearings.

As for whether it's actually constitutional, I think you have to start with U.S. v. U.S. District Court 407 U.S. 297. This deals with warrantless wiretapping of purely "domestic terrorists" but it's going to be the framework you have to start with. For me, the real killer is the Court's holding that judges are perfectly capable of evaluating issues regarding national security and they are perfectly capable of keeping a secret. Couple this with FISA, which provides for retroactive warrants, and the government has an uphill battle to convince a court that a regular program of warrantless wiretapping even of international traffic is legal.
12.19.2005 11:29pm
Martin Bento (mail) (www):
"As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad."

How did you come to this understanding? The question seems important, as it doesn't appear that either of your constitutional arguments hold any water at all unless this is the case, but the NSA under Echelon and through allies can and does surveil any international communication it wants - FISA isn't even necessary. True, the actual listening would have to be off US soil, but we have listening stations in several countries explicitly for this purpose, and, by some accounts, we can even have material forwarded to US without its being exposed to the host government. I don't think this whole discussion would even be taking place were not wholly domestic communications involved.
12.19.2005 11:35pm
The Original TS (mail):
Do you all realize that we're holding up The FISA, The FISA!, as a great bulwark of American Liberty? Secret proceedings held after the fact to issue secret retroactive warrants? Has it really come to this?
12.19.2005 11:39pm
H Barton Thomas (mail):
nice post. i don't have access to this site from my office, and was looking forward to your take on this important issue.

assuming a fisa violation, the question then becomes the proper remedy. A50 usc 1810 provides a substantial civil penalty:

An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover— (a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater; (b) punitive damages; and (c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred.
12.19.2005 11:39pm
Fishbane (mail):
it seems unlikely merely monitoring traffic between potential citizens and known al Qaeda operatives is going to be held to be a serious infraction--provided the intent was pure.

Legal analysis aside, I find that to be a frightening statement.

Similarly,

EVERY lawyer and police officer knows that law enforcement wire taps well beyond any warrant. [...]
Unfortunately I don't believe there's any recourse beyond the shock(!!!) and outrage (!!!1) by the usual suspects.


Emphatic punctuation and tone aside, I do believe this should change. I would like to see at least somewhat reasonable civil recourse for LEAand, intelligence overreach. If we are to be a free society, those working for us should be held accountable when they go astray. Even in times of war (...and wouldn't it be nice if we had good, old fashioned declarations of war, where we could at least agree that we were at war?).
12.19.2005 11:40pm
Jack John (mail):
Specifically, one would have to hold that the general language of the AUMF somehow amended the more explicit language of 18 USC 2511. And I am pretty sure that violates several canons of statutory construction.

Except SCOTUS already did that precise thing in Hamdi -- see the post at www.redstate.org, canons of construction bedamned. I would note that canons of construction are not canons of law; they are prudentially-exercised interpretive guidelines. Judges can discard them outright in exceptional cases or decide that competing values, or canons of construction, outweigh them in any kind of case, or that legal issues are so sharply presented that tie-breaking canons of construction are unnecessary or insufficient.
12.19.2005 11:53pm
ROA:
The Times story says that “the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches.”

Do people opposed to the eavesdropping think Farris should be released?
12.19.2005 11:55pm
tiefel & lester student (mail):
Orin,

I may have missed something, but it looked to me like the search in Ramsey was done pursuant to statuory authorization:


Congress and the applicable postal regulations authorized the actions undertaken in this case. Title 19 U.S.C. 482...explicitly deals with the search of an "envelope":


"Any of the officers or persons authorized to board or search vessels may . . . search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law . . . ."


I think this makes your analogy problematic for three reasons. First, it provides support for mls/Brett Butler/your former life position by emphasizing envelopes and trunks--focusing on concrete objects, not information. Secondly, the lowering of the required suspicion ("reasonable cause to suspect") was specific to the statute. This also gets to the third, and I think most serious, problem: in Ramsey, the search was done pursuant to legislative authorization. Here, there was no specific statutory authority--the closest law on the books is FISA, which as you pointed out, doesn't exactly authorize these searches.

It just occurred to me that you might mean 19 U.S.C.A. 482 is the statutory authority. If so, I'd re-emphasize the points made by mls/Brett Butler, and toss in the current language of the statute:


Any of the officers or persons authorized to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise which is subject to duty


I think the plain language of the statute limits its applicability to tangible things. There's case law that the purpose of the statute was to permit seizure of contraband. U.S. v. One Black Horse (129 F. 167).

Despite this disagreement with you, fantastic post, I think it's becoming the gold standard for discussion of the wiretaps in the blogosphere.
12.19.2005 11:59pm
AnonymouslyYours (mail):
It perhaps might be better rather than strictly relying on the border exception to broaden the term to be called the "special needs" doctrine, of which the border exception is a special need.
12.19.2005 11:59pm
A.S.:
3,000 American died on 9/11 because the Justice Department would not allow the FBI to search the computer hard drive of Zacarias Moussaoui.

This, of course, is the answer to all those who've posted that the FISA court hardly ever turns down a request for a warrant. That's only true because the Justice Department doesn't permit an application for a warrant to go to the Court unless they are 110% sure they will get the warrant. Which means that, in cases like Moussaoui's, the Court never even had a chance to turn down the application for a FISA warrant, since there was never anything presented to the Court.

And we know what the reluctance to even seek a FISA warrant in Moussaoui's case led to: 3000 deaths.

IMO, FISA is a deeply flawed law which cannot be fixed (even if Congress had the will to fix it - and, with the Democrats filibustering a law containing even the most minor changes to FISA, it's clear that Congress does NOT have the will to fix it). If it cannot be repealed, then the President was right to bypass to the fullest extent of his Article II Constitutional authority.
12.20.2005 12:00am
Ed in PA:
There's lots of debate here about whether the actions of the administration are legal or not - a better question at this point might be "Why, with the apparent flexibility that FISA gives you, did the administration follow this plan instead?"

My 2 cents: Look at all the leaks out of the administration these days. Clearly the CIA and BushCo are at odds here. Is this some sort of end-run around an internal beauracracy? Is the issue one that Bush and company feel they can't trust the information coming out of the agency (i.e. WMD)? Do they feel that there's a compromise somewhere, someone feeding this information back?

Sorry, IANAL, can't discuss with any real insight the fine legal points you guys are into.
12.20.2005 12:06am
Eric (mail):
Nat:
Well, it's certainly not a war in the manner of WW2, because there hasn't been an actual declaration,

OBL declared Jihad (war) in 98, openly spoke and acted on it, while we did not acknoledge his declaration of war; until, of course, he had a major offensive. This same entity and many others like it continue to declare war and openly speak of attacks on the US to this very day. I can understand disliking the political implications and maneuvering behind the phrase 'War on Terror,' but to not take our enemies words seriously is not only naive, it's dangerous. Many in this country don't think we are at war with terror groups, but if you those who seek to attack us, they'd vehemently disagree.
12.20.2005 12:07am
tiefel & lester student (mail):
Hmmm, for some reason in my previous post there are strikes through "vehicle, beast or person"--language I meant to italicize.

Reckon that Preview button is good for something after all.
12.20.2005 12:08am
Jack John (mail):
Look at all the leaks out of the administration these days.

I want to see some executions for treason. No, I am not kidding. These leaks are treasonous.
12.20.2005 12:12am
alf (mail):
If the 4th Amendment does not bar the President from authorizing warrantless wiretaps of US citizens, is the only check on the President's discretion a political check? Given that the program is designed to be secret, the political check is really nonexistent, unless the program is leaked, as it has been here. But absent such a leak, the President can spy on any citizen he thinks to be a threat to national security, and there is no check whatsoever? That seems astonishing to me. I know the Constitution isn't supposed to be a "suicide pact" and all that, but the potential for abuse just seems like more than our Constitution would allow. But perhaps not.
12.20.2005 12:13am
Bruce Wilder (www):
The point of controversy would seem to be, not what the President has done, regarding surveillance, but the claim of extensive Article II powers. We do not know the exact nature of the surveillance program, and its technical characteristics may be relevant to its substantive merit; we just don't know anything much about the program. We do not even know, it is clear from the discussion in this thread, whether the program conflicts with FISA. What we do know is that President Bush claims Constitutional power to authorize the program.

The political, if not the legal context, for this claim is particularly obnoxious. The President has previously defied the courts on Habeas Corpus, claimed the power to establish military tribunals, etc., etc. Coming in this sequence, what might very well be relatively minor, looms as a potential Constitutional crisis.

At the very least, the Alito nomination has become a lot more interesting. Alito is an undisguised authoritarian. Alito, on pattern, would almost certainly find all manner of Presidential power in Article II. The Alito nomination is likely to become a referendum on the President's overreaching.
12.20.2005 12:18am
Jack John (mail):
The Alito nomination is likely to become a referendum on the President's overreaching.

I would rephrase this: The Alito nomination is likely to become a referendum on the Democratic Party's overreaching. Schumer, anyone?
12.20.2005 12:26am
Ed in PA:
Let's look at the timing of this story, and some of the details as well - The Senate Intelligence (HAH!) committee gets briefed on this every 45 days. Clearly this wasn't being done in a vacuum. I believe that the committee is headed up by a Democrat, so it's not like this was news to either side.

Now a story about it breaks in the news and presto! a book release to co-incide! I'm not one for tinfoil fashion, but this looks a lot like a political manuever for the 2006 elections. Who has the most to gain from a stunt like this?

I assume (again, I'm not a lawyer) that if the Senate Intelligence committee disagreed with the president when he started doing this that there's some sort of congressional or legal venue that they could have taken to stop this behavior, and since we haven't seen any such thing, this looks a lot like the Democrats trying to give the GOP all the rope they needed to hang themselves. They've been looking for Articles of Impeachment fodder for some time and now maybe they think they've got it.

I don't mind the Democrats working to keep the GOP in line, the GOP is no bunch of saints, but they're playing a foul game here with our security and safety. I saw a poll a while back that showed trust in the GOP was down in the 30% range - but in smaller text was that trust with the Democrats was in the 20's. This is not gonna win them an election. Libertarians, anyone?
12.20.2005 12:27am
CharleyCarp (mail):
FISA provides a civil remedy, and has a specific criminal penalty for violations. It's primary purpose is the restrict conduct by the Executive.

As to whether this is constitutional, I'm not seeing the inherent power argument. I think it's clear enough that Congress can direct a great many things with respect to war and warmaking, from funding or defunding bases, weapons systems, aid to foreign governments or factions to amending the UCMJ to make particular conduct illegal. People who think the CinC clause is a blank check need to take another look at Article I section 8. Here's an easy example: does the President have the inherent authority to employ the Army in domestic law enforcement activities? Sure, why not. Has Congress made it illegal? Broadly speaking, yes. What madness it is to suggest that the Framers, who were worried about aggregation of Executive power above all, would have created the executive that Yoo/Gonzales/Miers envision.

I think Ramsey is readily distinguishable, btw. Two features stand out: first, interfering with stuff is very different from interfering with words, especially if the wards are not themselves part of a crime. ("Have you seen Osama lately?" "Yeah, he was down at the bowling alley yesterday.") Second, the Court presumed that the searches were limited to instances where the government had a reasonable suspicion that contraband was being imported. I suspect that when the dust clears here, we're going to see interception well beyond reasonable suspicion of lawbreaking. Here's a simple hypothetical: immigrant from Pakistan (now a US citizen) works at the WTC, as a soup vendor. Never been affiliated with any radical groups, never had so much as a parking ticket. No reason to suspect him of anything at all. He has his usual day off on 9/11. No reason to think it's anything other than the luckiest day the guy's had in his life. So what does he do? He calls his mother (a housewife, no radical ties) in Peshawar to tell her that he was home, and that he's alright. Tells her his friends didn't make it, including a gal he was going to bring home to introduce to the family. They have 3 more conversations over the next week, as she helps him with his grief. Can NSA listen in to these conversations without a warrant? Does the answer change if you can establish that a suspected radical lives within 500 yards of the mother (along with 15,000 other people)? What if the girl's uncle fought with the mujahadeen in Afghanistan in the 1980s?
12.20.2005 12:32am
Jack John (mail):
I assume (again, I'm not a lawyer) that if the Senate Intelligence committee disagreed with the president when he started doing this that there's some sort of congressional or legal venue that they could have taken to stop this behavior,

Sure, any Senator on that committee could put a hold on all Executive calendar events in the Congress that he had the ability to put holds on. Other Democrats likely to win re-election, or in safe states, could do the same thing and grind down Executive business in the Senate. Legislative business would proceed unmolested. They could also start subpoenaing people for hearings and trap them into perjury-probable impeachements. Oh, and they could put very, very minor stuff in bills that polls well and that the President doesn't want.
12.20.2005 12:36am
Brett Butler:
I was a little surprised to see the border search argument front and center here considering the type of "search" (?) or "interception" probably at issue. I'll just note briefly, as perhaps some other comments have, that Ramsey did not deal with correspondence, and explicitly so, which seems to me to be the main weakness in relying on border search doctrine for much here. The Customs regulations at issue in Ramsey called for different treatment of correspondence and continue to do so (19 CFR Pt. 145). This undermines the analogy with phone calls, e-mail, or other communicative conduct across borders.

Even in recent years, Congress has been reluctant to grant authority for anything even resembling correspondence (see weight limits within 19 USC 1583), and the State Dept would not allow exams of foreign mail transiting the US, even if it is not correspondence (68 FR 61713) when Congress authorized it.

Heidy v. US, 681 F. Supp. 1445 (CDCal. 1988) (holding a program recording non-violative material passed FBI by Customs to be unconstitutional) points the way to a possible limit on government action here, which may be the First Amendment, not the Fourth--as the Ramsey court distinguished by reference to the Customs regulations in rejecting the "chilling" argument presented there.

The program may yet be justified as constitutional, but if we're talking about intercepting content or something that resembles correspondence, I suspect Ramsey could be distinguished.
12.20.2005 12:37am
CharleyCarp (mail):
They could also start subpoenaing people for hearings and trap them into perjury-probable impeachements. Oh, and they could put very, very minor stuff in bills that polls well and that the President doesn't want.

Minority members can't issue subpoenas. Nor can they put stuff in bills. Not without the connivance of the Majority.

Ed, the chairman of Senate Intelligence is Pat Roberts, Republican of Kansas. Call him an anti-Bush conspirator if you like, but I think you'll find it a tough sell.
12.20.2005 12:44am
A.S.:
But who was the chairman of the Senate Intelligence Committee in 2001 and 2002 when this program began? Hint: it wasn't Pat Roberts.
12.20.2005 12:55am
Ed in PA:
Correction noted, thank you. I knew that Rockefeller was/is on the committee, but I didn't know who actually ran the thing. You're right, not exactly a bastion of bush hatred there. Just looked it up, should have checked first.
12.20.2005 12:59am
Mark Gilbert (mail) (www):
Given the position the President has taken, the most pressing argument would seem to be the one given here by Sysiphus (channeling John Yoo). The Sysiphian idea that the constitution's executive and judicial powers are "broader" than the legislative is backwards. The framers thought of Congress as the most powerful branch.

Sysiphus assigns to the executive, "all traditional powers of their respective portion of the government, unless the Constitution specifically limits them." He even calls upon the example of Queen Elizabeth I to define the traditional powers of the executive. But, obviously, our framers envisioned a much different executive than those that had gone before, in England and elsewhere.

Most basically, the power of the executive is to execute the laws. That's what the word means, and we get the most sensible reading if we let the word mean what it means. We have 200+ years of presidential experience to look at and deconstruct, but the framers didn't. When they wrote the first words of Article II, "The executive Power shall be vested in a President," they meant that the president should execute the laws.

Reading the other powers in Article II as a license for the president to act towards US citizens in ways contrary to the law he is meant to execute is truly tortured.

Thank you to this blog, Dr. Kerr, and the many informed and thoughtful commenters.
12.20.2005 1:05am
Justin (mail):
Jeez, Jack John. Executions? What did Scooter Libby and Karl Rove ever do to you?
12.20.2005 1:06am
Jack John (mail):
What madness it is to suggest that the Framers, who were worried about aggregation of Executive power above all, would have created the executive that Yoo/Gonzales/Miers envision.

This is untrue. The Framers have the President the veto to guard against the tyrannical legislature, which was so tyrannical in Britain because the Constitution was unwritten and they made it up as they went along. Limited unmerated powers, anyone? The First Amendment does not say "The Presiden shall authorize no wiretaps," it says "Congress shall pass no law".
12.20.2005 1:06am
Jack John (mail):
Minority members can't issue subpoenas. Nor can they put stuff in bills. Not without the connivance of the Majority.

That is because the Republicans have changed the rules. This sort of stuff was possible before.
12.20.2005 1:07am
Jack John (mail):
Make no law, rather
12.20.2005 1:10am
Jack John (mail):
Jeez, Jack John. Executions? What did Scooter Libby and Karl Rove ever do to you?
I don't think their leaks are treasonous, as they didn't put national security at risk. All they did was promote Joe Wilson's book.
12.20.2005 1:16am
Justin (mail):
LOL, out a CIA agent (and politically damage Democrats) = ok
out an illegal program in violation of Article II (and politically damage George Bush) = execution

At what point is Godwin's law pre-empted?
12.20.2005 1:19am
Jack John (mail):
When they wrote the first words of Article II, "The executive Power shall be vested in a President," they meant that the president should execute the laws.

That is wrong. The Take Care clause specifically tells the President to take care that the laws are executed faithfully. The vesting of Executive Power, by contrast, vests him with the whole of the Executive Power, which is undefined. The Executive Power includes faithful execution of the law, but it is not the whole of it. What the vesting clause also does is make the executive power exclusive; much as the legislative power is exclusively in the legislature -- art. 1, sec. 1. So there is some quantum of Executive power that is exclusive to the President (beyond legislative restriction) above and beyond mere execution of the law. We need not theorize on the whole of this quantum's content to recognize that the Commander-in-Chief clause is right there in the text of the Constitution!
12.20.2005 1:22am
Jack John (mail):
out an illegal program in violation of Article II (and politically damage George Bush) = execution

The program isn't illegal. So:

Violate your confindentiality contract and oath to the President and put national security at risk = treason
12.20.2005 1:24am
ficus:
IANAL, but with respect to the Jackson categories that have been cited, isn't it relevant that Jackson's third category had to do with an emergency power that was not the war power itself? In prosecuting a war, the president, even by the provisions of the constitution, is in a uniquely powerful position. Can his judgment of what is required be checked by an act of Congress prohibiting certain actions?

Beyond that, how scrupulous should a president be about legalities when fighting a war? Like most people, I think the legal order is of the utmost importance, and the constitution a great asset to us as a people, but first we must live. The president is there, above all, to take care of that latter point. If preventing a 9/11 is difficult to do without violating FISA, or the constitution itself, he should at least consider violating both. It is better not to codify that -- how could you? -- but don't we tacitly rely on it?
12.20.2005 1:37am
Jamesaust (mail):
On the narrow subject of the fourth amendment, there has been some implication that the amendment's requirement of a warrant might not be triggered as the amendment places this requirement in the context of "unreasonable" searches - the implication being that the searches in question are, by their national security nature, reasonable.

I believe reference directly to Justice Powell in the Katz case is prudent. There, Powell noted that in deciding whether a search is in fact reasonable is inseparable from the warrant clause of the fourth amendment itself. With only the most narrow exceptions, searches without a warrant are virtually identical to unreasonable searches. Whatever national security powers there are inherent in Article II, they are amended by the fourth amendment (not the other way around).

Powell further noted, in discussion of a potential lesser standard to probable cause for the issuance of warrants in national security cases, the authority of *Congress* to set alternative standards for such cases (p. 322).

As such, the suggestion by the Professor that via FISA Congress exercised its authority to restrict searches by establishing a different-than vehicle as an alternative to probable cause for the issuance of warrants in the FISA court itself would seem to carry much weight. Warrants exist for the sole purpose of restricting the executive, which is the only 'active' branch of government.

That seems to be the crux of the situation: the Administration has failed to meet either the probable cause standard set by the judiciary or the FISA alternative provided by the legislature. It is unclear why so, but as an attempt to avoid the checks and balances inherent within the Constitution. The executive's "exclusive" Constitutional power is not without practical limitation (witness the Boland Amendment's restriction on otherwise exclusive-to the executive branch's foreign affairs powers). Does Congress have to create a statute under its budgetary authority to forbid the use of treasury dollars to fund warrantless searches?
12.20.2005 1:55am
alf (mail):
Reading some of the above comments, it seems to me that what is underlying people's positions about executive power is their view of the threat posed by radical Islamic terrorism and the lengths we need to go in order to prevent future attacks. It's fairly clear that Lincoln acted extra-constitutionally during the Civil War. Am I glad that he did so, in order to keep the Union together and end slavery? Absolutely. That was probably the most dire threat this nation has ever faced. The current threat is very serious, but I am not sure it requires all of this extra-constitutional, extra-legal action. Perhaps I am naive, but after reading the 9/11 Commission Report I got the sense that there was at least a fair chance that the attack could have been prevented if only those in government had realized the seriousness of the threat and had been more imaginative in their thinking. The attack was less a product of us not having the legal means to deal with the situation and more a result of just not taking seriously enough the possibility that we could be attacked on our home soil.
12.20.2005 1:58am
Hawaii Guy (mail):
Would anyone care to take a crack at the previous comment regarding the 72 hours notification? Much is being made of this on the talk shows, and it seems to be avoided after the question is asked. So I'll ask it here:

If FISA allows immediate monitoring of communications as long as it is reported in 72 hours, why was it necessary for the President to circumvent FISA?
12.20.2005 2:08am
Dale Franks (mail) (www):
A "United States person" is defined in 50 U.S.C. 1801(i) as "a citizen of the United States [or] an alien lawfully admitted for permanent residence."


Ah, but the full text of the section reads:

(i) ''United States person'' means a citizen of the United
States, an alien lawfully admitted for permanent residence (as
defined in section 1101(a)(20) of title 8), an unincorporated
association a substantial number of members of which are citizens
of the United States or aliens lawfully admitted for permanent
residence, or a corporation which is incorporated in the United
States, but does not include a corporation or an association
which is a foreign power, as defined in subsection (a)(1), (2),
or (3) of this section.

So, then, the question, in my mind is, if a citizen is an active part of an association (Al Qaeda) that is identified as a "fopreign power" remains a "United States Person" under the meaning of the act, since membership is such an association is ecxepted under the section cited.
12.20.2005 2:16am
Davod (mail):
Wonderfull analysis! Possibly. It demonstrates yet again that the worst thing to do is have lawyers writing laws. Give me a practical person with a knowledge of plain English anyday.
12.20.2005 2:33am
Davod (mail):
I read an article on the FISA yesterday (No I cannot remember where I read it.) It was explained that the problem was not with the FISA Court but the process required to get an application before the court.

The court acts quickly, but it takes weeks to get the paperwork prepared to place before the court. The suggestion was that those in FBI/justice who have responsibility for doing this work do not yet understand the need for a speedier process.
12.20.2005 2:47am
The Original TS (mail):
I read an article on the FISA yesterday (No I cannot remember where I read it.) It was explained that the problem was not with the FISA Court but the process required to get an application before the court.

I've seen various incarnations of this excuse and I just want to observe that it is the lamest possible justification imaginable.

First of all, domestic law enforcement have to get warrants in advance and they, somehow, manage. Sometimes it means rousting a magistrate out of bed in the middle of the night but if that what needs to be done, that's what they do.

The idea that the President has to violate the Constitution because the judges appointed to the FISA court are just too darn lazy to do their jobs efficiently is risible. "We tried to get warrants, we really did! But it takes weeks and weeks! The judges are always at charity golf tournaments and the their clerks keep losing the papers. We've begged and pleaded and threatened but there's no improvement! We blame lifetime appointments."

If there really is an administrative problem with getting timely warrants -- which means warrants three days after the fact -- then make administrative changes. Get the Chief Justice to crack the whip. I'm sure some sort of expedited procedure could be worked out if necessary. If you have to, ask Congress to amend the law to appoint more judges to the FISA court. But you can't just ignore the law because you don't think your papers are getting processed fast enough.
12.20.2005 3:17am
Hawaii Guy:

"I read an article on the FISA yesterday (No I cannot remember where I read it.) It was explained that the problem was not with the FISA Court but the process required to get an application before the court.

The court acts quickly, but it takes weeks to get the paperwork prepared to place before the court. The suggestion was that those in FBI/justice who have responsibility for doing this work do not yet understand the need for a speedier process."



But critics are saying monitoring may commence without a warrant as long as the FISA court is informed within 72 hours. In essence, they are saying the President and his supporters' comments about the need to be speedier and take immediate action is BS since FISA already allows it.

I would love to have this either debunked or verified.
12.20.2005 3:18am
ConfusedQuestioner (mail):
Two quick questions:

1. If the problem with FISA is that the Justice Department holds up paperwork and makes the process take too long, isn't the answer to, you know, replace the people at Justice who hold up the paperwork. Or just to tell them not to? It's not like the Bush Administration has had trouble telling Justice staffers when their opinions clash with the opinions of top brass (e.g. the Texas Voting rights act situation).

2. I understand the large amount of New York Times hate among some of the posters, but is anyone really annoyed that they a) broke this story; b) waited a year to reveal it in order to protect american intelligence sources and corroborate their sources? It seems to me that, regardless of the legality (I'm on the fence, leaning towards the fact that it is a violation of FISA, but unsure and definitely happy about some of the results), this is the kind of thing about which there should be a clear and open debate. And no one -- to my knowledge -- has found anything wrong in their reporting. (If someone has, kindly tell me). So what's with the hate here?
12.20.2005 3:20am
jgshapiro (mail):
The point of controversy would seem to be, not what the President has done, regarding surveillance, but the claim of extensive Article II powers.

The program actually raises two distinct issues, (1) whether Bush has the inherent authority to direct this w/o Congessional authorization; and (2) whether the program violates legal or cultural norms regarding warrantless searches.

For my own part, I am much more concerned about the first issue than the second, but I don't think it is accurate to say that there is no controversy about the second. I think many people on this blog would object just as strenuously if Congress had specifically authorized this surveillance in the Patriot Act or the AUMF or FISA itself, and Bush was able to clearly rely on the Category I analysis of the Steel Seizure case (i.e., when Congress and the president are on the same page).

There is some overlap, however, between the two issues: had Congress gotten involved, even if they had green-lighted this program, they would almost certainly have put some limits on this power that Bush himself might not have agreed to -- or at least, could not subsequently waive on his own.
12.20.2005 3:26am
jgshapiro (mail):
Well, it's certainly not a war in the manner of WW2, because there hasn't been an actual declaration

Is there any material legal difference between an AUMF and a declaration of war? I thought the point of an AUMF was to allow us to preserve some element of credibility regarding the likelihood, and surprise regarding the timing, of an attack: a president could get authorization to attack first, then try some last minute negotiating/sabre rattling, and if that failed, he could attack without a subsequent vote.

If the war on terror was just a law enforcement action, why would you need the AUMF at all? Terrorism was already against the law before 9/11/2001. Moreover, how do you square that view of the AUMF with the discussion in Hamdi, debating whether an AUMF was sufficient in and of itself to suspend habeus corpus (which can only be done in time of war)?

I agree (along with O'Connor, et. al.) that a state of war is not a blank check for the president, but pretending we are not at war seems to blink reality.
12.20.2005 3:58am
Medis:
Jack John,

Orin already discussed Hamdi and its treatment of 18 USC 4001. As an aside, my own sense is that this might be a close issue if we only had FISA, specifically 50 USC 1809, to go with.

But in my post you quoted, I was actually referring to 18 USC 2511. I won't repeat my entire argument here, but the important point is that 18 USC 2511 makes FISA the "exclusive means" by which electronic surveillance within the definitions of FISA can be conducted. To my knowledge, there was no such statute at issue in Hamdi. And I don't think Hamdi addresses the effect of the 2001 AUMF on a statute like 18 USC 2511 (as opposed to 18 USC 4001 or (at least aruably) 50 USC 1809).

Incidentally, I might note that this is not exactly an idle argument--I actually saw Senators Levin and Feingold on C-SPAN tonight make exactly this argument (that FISA not only requires statutory authorization, but that FISA is also the "exclusive means" for authorizing such surveillance under federal law).
12.20.2005 4:09am
Medis:
Dale,

Something like an association or a corporation can be a legal "person". See 1801(m) ("'Person' means any individual, including any officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power.").

So when 1801(i) says the definition of a US person "does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section," it means just that--certain corporations or associations are not included.

But that does not mean that people who are members of those associations or corporations are not US persons. Those individuals are US persons in their own right if they fit the definition, and since the exception you note only apples to corporations and associations, it does not apply to those individuals.
12.20.2005 4:18am
Medis:
Dale,

Oh, and as others have noted, Al Qaeda is not a foreign power under subsection (a)(1), (2), or (3). It is a foreign power under (a)(4) ("a group engaged in international terrorism or activities in preparation therefor").
12.20.2005 4:31am
Medis:
Finally, for those who are citing Congressional notification and approval: various members of Congress are claiming that while they received briefings, key details about the program were withheld.
12.20.2005 4:35am
RIch (mail):


Let's suppose this program is illegal and unconstitutional. What's the remedy? Who's the plaintiff? In theory, there'd be a civil remedy available but first a plaintiff would have to find out he or she was being monitored. Since the this is "one of the most classified programs undertaken by the government" there's not much chance of that.






The remedy, quite clearly is Impeachment. This is the precedure that the Constitution provides for determining if the President violated the law.
12.20.2005 5:37am
snead16 (mail):
Orin:

Your 4th Amendment argument seems tied to the communications crossing the border. But I think reasonable suspicion to intercept those calls is required to make the NSA domestic-spying program 4th A-compliant.

SCOTUS addressed random searches/seizures at the border pursuant to staute in U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975).

The bottom line was (if I've read this case right), even at the border, govt agents in the executive branch need "reasonable articulable suspicion" to interfere without violating the 4th Amendment.

SCOTUS assumed Congress's exercise of its "plenary" immigration authority was at its zenith when passing a statute authorizing random stops. And that plenary authority had been delegated to the Executive Branch by statute.

But the Court held, nonetheless, that the 4th Amendment required reasonable suspicion before a search/seizure could be made -- even though it was the border.

In other words, Congress could not authorize random stops under its authority over the admission of aliens -- even though SCOTUS calls that authority "plenary", just as the President here considers his CIC powers to be plenary.

And it shouldn't seem to matter that Congress passed the AUMF or that a President is exercising CIC power. Because under Brignoni-Ponce, the 4th Amendment trumps even plenary Constitutional authority.

So the question regarding NSA spying on calls originating domestically is one of "reasonable suspicion."

We don't have enough facts at this point.

On the other hand, has it ever been reasonable suspicion to execute a search based on nothing more than -- for example -- finding a phone number on a piece of paper in pocket of a suspected criminal.
12.20.2005 6:42am
Mark Buehner (mail) (www):
Here are some things we do know that are often ignored in this thread and elsewhere:

1. GWB is the Commander in Chief with the authority to wage war.
2. Congress declared war against Al Qaeda and all their allies and enablers in 2001 via the AUMF.
3. This program was used to intercept communications originating or terminating outside the United States, with enemy operatives.

Communicating with enemy combatants may or may not be treasonous, may or may not be an act of war in itself. But the communications (ie the information) involved is most certainly a direct component to the war. It is intelligence. Enemy intelligence (particularly) originating outside our borders falls under the purview of the CIC, does it not? Isnt this an arguement that routing communications through a US citizen on US soil will provide due process protection?
12.20.2005 9:23am
Tom Myers (www):
Is there an appropriate definition of "faction" here? When I
look at the Wordnet definition and others, it seems to me that the groups in question can reasonably be described either as terrorist groups (excluded from this surveillance) or as "(2) a faction of a foreign nation or nations, not substantially composed of United States persons". Since no one seems to have raised this issue, I presume that there's a specific legal definition of "faction" to be applied (or, of course, that I'm missing something that makes this irrelevant.)

Can somebody help me out?
12.20.2005 9:26am
Mel (www):
One big question that is unanswered(able) is where the surveillance is occurring. If it is originating from operations oversees and monitoring cell phone calls (for example) in that country I would think this would change the arguments considerably.

I think it’s important to distinguish that this program does not monitor Americans. Instead, it monitors terrorist communication on their home turf, some of which happens to be with Americans.
12.20.2005 10:12am
nc_litigator (mail):
i know this isn't legal authority, but ol' partisan atrios has dug up an interesting bush quote from 2004:

Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.
12.20.2005 10:14am
Henry Bowman:
It seems clear to me that contributors to the VC, many of whom are self-described libertarians, are anything but. I'm quite convinced that if the U. S. Constitution had an article in it specifically prohibiting electronic eavesdropping on U. S. citizens, the folks at the VC would always find that the "state's interest" always trumped such a provision. In other words, the Bill of Rights, insofar as the VC folks are concerned, is a really big nuisance that one can always argue doesn't really apply to this case or that case. This is as much nonsense as Pres. Bush claiming that Article II of the U. S. Constitution gives him authority to perform whatever he deems is justified to fight the current undeclared War (which still is undeclared, despite what others have stated in this thread). I suspect Karl Rove never told him about those silly Amendments.

In other words, the folks at the VC would appear to be quite happy to live in a dictatorship; all one needs to do is declare (not with Congressional authority, of course -- that's yet another nuisance!) a "war on (fill in the blank)" to justify whatever the current dictator wants to do.

A truly sorry bunch.
12.20.2005 10:20am
Justin (mail):
The absolute nonsense from Jack John aside, I have thought about Orin Kerr's post last night and I have decided that I do support impeachment on this issue (in theory), but not directly. Let me explain my reasoning.

As a policy matter, I think it may be that liberals are somewhat overreacting. As far as we know (more on this later), the President has only used this on incoming phone calls from out-of-the-country numbers that are attached to people who we have at least a good faith belief in that they are either terrorists or assisting with terrorism. I'm also fine with the choice Congress made - NOT giving the President this power, especcially in the light of Nixon abuses. But if the President had this power, I wouldn't lose too much sleep.

I am VERY concerned, though not principally concerned, with the secrecy of this. Without government oversight, the executive has a tendancy to, shall I say, overreach, often in dangerous ways. Indeed, how many of you will be shocked if along with Zarquari and Bin Ladin if the list of names that are being targeted include members of ANSWR, ISO, GreenPeace, and other international lefties (not to mention Great Britain, France, Germany, and/or Russia, which shockingly I'd have less concern over).

What concerns me principally, however, is the outright disregard for Congress. Andrew Jackson was impeached during reconstruction for disobeying Congress. The impeachment was generally regarded as politically motivated - BUT NOT BECAUSE OF THE TECHNICAL REASON. Instead, it was because Congress passed the law preventing Jackson from firing members of cabinet precisely because they wanted to fight, and the law itself was a legitimate challenge to Article II (whereas the argument that FISA is a legitimate threat to Article II is specious to Republicans and obviously false to Democrats).

Here, we have Congress passing a law in the Nixon era PRECISELY to stop executive corruption, and the President not flaunting that law in order to challenge it or Congress, but secretly (remember, Rockefeller couldn't even tell Harry Reid about this) in a way that prevented both detection and oversight. For Congress's legislative authority to be treated with such contempt, to steal Jack John's bloodlust language, for the PRESIDENT to "violate [his] oath . . . and put national security at risk," that is the heart of behavior that indicates the need for Congress to assert its power of removal.

One last concern about impeachment generally. Assuming the defense that seems to be the most obvious (in the political arena, defenses rarely come in red briefs) is "official immunity", i.e., because Bush (arguably) did not "clearly" violate the law, he gets a pass this time, creates a somewhat odd and unintended consequence. As that defense does not exist for a President acting in his private capacity (can anyone imagine Bill Clinton arguing that he didn't commit perjury because it is not perjorous to lie about something irrelevant and he believed his relationship with Monica Lewinsky was legally classified as such?), it appears that impeachment is a threat to Presidential power only in a private, rather than public, manner. This is probably the exact opposite of its original intent.
12.20.2005 10:26am
Medis:
Tom,

I searched the US Code, and found a few references to factions you might find helpful: 10 USC 906a, 18 USC 11, 18 USC 756, 18 USC 793, 18 USC 794, 18 USC 798, and 22 USC 611.

Probably the most on point are 10 USC 906a (which defines espionage under the UCMJ) and 18 USC 793, 794, and 798 (which define espionage under civilian criminal law).

10 USC 906a refers to communicating with: "(A) a foreign government;(B) a faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States; or (C) a representative, officer, agent, employee, subject, or citizen of such a government, faction, party, or force." I'm not sure how helpful that is, although it implies that a "faction" is somehow similar to a party or military force.

18 USC 794 might be a little more helpful. It states, "The term 'foreign government' includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States." So, again, factions are on a list with parties and military forces, and also departments, agencies, and bureaus. All this suggests to me that factions are elements of governing political systems--at least broadly speaking, in the sense that a political party can be an element in a governing system even when it is in the minority.

Although less directly on point, the most informative discussion I found was in 22 USC 611. This subchapter deals with the registration of foreign propagandists. It provides: "The term 'government of a foreign country' includes any person or group of persons exercising sovereign de facto or de jure political jurisdiction over any country, other than the United States, or over any part of such country, and includes any subdivision of any such group and any group or agency to which such sovereign de facto or de jure authority or functions are directly or indirectly delegated. Such term shall include any faction or body of insurgents within a country assuming to exercise governmental authority whether such faction or body of insurgents has or has not been recognized by the United States." So, again, factions are connected to the notion of exercising governmental authority.

Accordingly, my sense is that a foreign group (terrorist or otherwise) is not a "faction" unless it is somehow a component of a governing system of a foreign nation (like a political party or part thereof), or otherwise execises governmental authority over some territory within a foreign nation.

For example, the Congressional Black Caucus probably counts as a "faction" in the United States. But the American Red Cross probably does not. And that is because the former directly participates in our governing system, whereas the latter does not (lobbying alone would not, I would think, transform a group into a faction).

As for terrorist groups, I think they probably could be parts of factions insofar as they are something like the extremist "action" wings of political parties. So, at one time the Provosional IRA was plausibly part of a "faction" in Ireland because of its relationship with Sinn Fein. But I don't think a terrorist organization is automatically a faction of a foreign nation, unless it participates in the governing system. In that sense, despite claiming the name "Red Army Faction" (actually, "Fraction", but I think the idea is the same), that group was probably more properly just a terrorist gang, and not an actual "faction" within Germany.

And so I suspect the nature of terrorist groups can cahnge over time. Indeed, the Provisional IRA might have been part of a fraction at one time, but perhaps no longer after the 1992 split with Sinn Fein. Similarly, perhaps the ETA was part of a faction when it was associated with Basque separatist parties, but perhaps no longer after those parties were banned.
12.20.2005 10:41am
The Ace:
Why do you people continually say there is no oversight?

It is getting absurd and you're only revealing your ignorance in doing so.

----------------------
Anyway here is why what Bush is doing is legal under FISA:

1. A terrorist group is a foreign power under the statute:
§ 1801 a) (4) a group engaged in international terrorism or activities in preparation therefor;

2. International terrorism defined by the statute:
© “International terrorism” means activities that— (1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;

So, if you are engaged in international terrorism you are an agent of a foreign power:
Per § 1801 (b)(2)©:
“Agent of a foreign power” means—
knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;

(b)(2)© covers everybody not just foreigners.

3. FISA is wholly intended to collect “foreign intelligence information,” which is defined under section 1801 subsection (e)(1)(B) as “information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against sabotage or international terrorism by a foreign power or an agent of a foreign power.”
12.20.2005 10:46am
Dale Gribble (mail) (www):
Very good responses to the meaning of 2001 congressional resolution to take out alqueda; If congress has the guts to do it, it may rewrite its resolution i think and tie one of the president's hands.
12.20.2005 10:47am
The Ace:
More:

Court Says U.S. Spy Agency Can Tap Overseas Messages
By David Burnham, The New York Times, 1982

Washington, Nov 6 — A Federal appeals court has ruled that the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe they Americans are foreign agents, and then provide summaries of these messages to the Federal Bureau of Investigation.


----------------
And:
President Carter issued an executive order on May 23, 1979, stating:
“Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order.”


---------------------
The Professor's post leaves out way, way too much information to be taken as all that persuasive or definitive.
12.20.2005 10:58am
mls (mail):
The Ace -- your last post argues that what Bush did was legal under FISA because it allows spying on terrorists like AlQuaeda members. Granted. But FISA requires certain procedures to be followed before that spying is legal. Remember that pesky warrant requirement? Did the NSA spying program operate legally under FISA? Doesn't seem so, since the entire program was designed, apparently, to circumvent the FISA warrant requirement. So in what way was Bush acting legally under FISA?

I'm assuming you're not making the argument that what Bush did would have been legal if he had followed FISA, so it is still legal when he didn't follow FISA! The court pretty soundly rejected that kind of argument in Katz, when it complimented law enforcement for conducting their illegal bugging operation in a way that would have been allowed under a warrant -- but nevertheless holding that they violated the Constitution by failing to get a warrant.
12.20.2005 11:04am
Charlie (Colorado) (mail):
Hmmm. On the penalty issue, as I think TS cited, the statute says:

An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, ....

Notice that this doesn't have the restriction to 1801(a)(1-3). It would appear that "a foreign power or an agent of a foreign power" has no civil remedy.
12.20.2005 11:59am
A. Friend:
The ungodly attacks of September 11 changed everything. It marked the beginning of a new kind of war. The War on Terrorism has no clear end, and no definite boundaries. The old laws, including constitutional safeguards, only help The Terrorists. Questioning the administration and its beliefs about the constitutional and law only help The Terrorists. We cannot surrender to terror. We cannot surrender to questioning the administation. The very fact that we are having this discussion on this blog helps The Terrorists by demonstrating to them our cowardly lack of resolve in fully supporting the administration in its pursuit of The Terrorists. There are a lot of Americans who would undermine the War against Terror by giving encouragement to The Terrorists. Yesterday, for example, I saw an "American" stub his toe on a step. His cowardly display of timidity and weakness encouraged The Terrorists by showing American weakness in the face of this new kind of war. God bless America, and may we prevail against The Terrorists and Charles Darwin.
12.20.2005 12:52pm
Adam Sullivan (mail) (www):
Is this not a question of restraint of Executive power in wartime?

SCOTUS has a history of defference to executive authority in times of war. The O'Connor opinion in the Hamdi case is but a small example.

Post Watergate / Post Vietnam congress took it upon itself to restrain executive power - not only did they give us FISA but we got the War Powers Act too. Neither, IMO, would survive a direct challenge by the executive before the SCOTUS in time of war.

The Commander in Chief (CINC) is named such in the Constitution for a reason. It is for that same reason that only the congress may declare war. When Congress gives the green light, the Constitution sees to it that the CINC has the unfettered opportunity to win that war. The only significant power that congress has to derail a war it has authorized is to deny funding to such a war.

Our revisionist congress is what we are dealing with - one that checks the political winds and decides to change course accordingly. The Patriot Act is now anathema while it was broadly supported (and co-sponsored) by many of its opponents today. The congress hates to be pinned down, and goes out of its way to claim it has reserved authority to "check" executive power. So after 9/11, it did not "declare war" but authorized "force." Fortunately, SCOTUS sees through such charades, as the O'Connor opinion in Hamdi equates that declaration to one of war.

The framers of the Constitution never intended for war to be fought by committee. I hope that FISA goes to the courts on these facts, because SCOTUS will eviscerate it as an unconstitutional restraint of Executive power in wartime.
12.20.2005 1:10pm
Adam Sullivan (mail) (www):
Is this not a question of restraint of Executive power in wartime?

SCOTUS has a history of defference to executive authority in times of war. The O'Connor opinion in the Hamdi case is but a small example.

Post Watergate / Post Vietnam congress took it upon itself to restrain executive power - not only did they give us FISA but we got the War Powers Act too. Neither, IMO, would survive a direct challenge by the executive before the SCOTUS in time of war.

The Commander in Chief (CINC) is named such in the Constitution for a reason. It is for that same reason that only the congress may declare war. When Congress gives the green light, the Constitution sees to it that the CINC has the unfettered opportunity to win that war. The only significant power that congress has to derail a war it has authorized is to deny funding to such a war.

Our revisionist congress is what we are dealing with - one that checks the political winds and decides to change course accordingly. The Patriot Act is now anathema while it was broadly supported (and co-sponsored) by many of its opponents today. The congress hates to be pinned down, and goes out of its way to claim it has reserved authority to "check" executive power. So after 9/11, it did not "declare war" but authorized "force." Fortunately, SCOTUS sees through such charades, as the O'Connor opinion in Hamdi equates that declaration to one of war.

The framers of the Constitution never intended for war to be fought by committee. I hope that FISA goes to the courts on these facts, because SCOTUS will eviscerate it as an unconstitutional restraint of Executive power in wartime.
12.20.2005 1:10pm
Adam Sullivan (mail) (www):
pardon the double post - slow connection today ....
12.20.2005 1:11pm
The Ace:
The Ace -- your last post argues that what Bush did was legal under FISA because it allows spying on terrorists like AlQuaeda members. Granted. But FISA requires certain procedures to be followed before that spying is legal. Remember that pesky warrant requirement? Did the NSA spying program operate legally under FISA?

MLS, § 1802. "Electronic surveillance authorization without court order"

There isn't a "pesky warrant requirement"

I laid out how one isn't needed. The relevant case law agrees, and the courts have expressed the difference between law enforcement &national security.

So did the Clinton Admin:

“The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the President may, as has been done, delegate this authority to the Attorney General.”

“It is important to understand, that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities.”


- Jamie Gorelick testifying before the Senate Intelligence Committee on July 14, 1994
12.20.2005 1:19pm
SteveW:
If the NSA office, personnel and equipment involved in the warrantless searches were all locate entirely outside the U.S., would that affect the analysis? How likely is it that the operation was outside the U.S.?
12.20.2005 1:49pm
Sisyphus:
Eric Muller wrote:


Sisyphus, you prove way too much. If the President has the robust Article II power that you describe, then I have a hard time seeing how Congress can constitutionally constrain it through FISA. Is your argument that FISA is an unconstitutional restraint of the President's power to engage in warrantless eavesdropping?


As others have pointed out, I think rightly, this is a situation where the Executive is granted the power to do something by the Constitution, but that power can be limited by Congress through statute (a Steel Seizure category III situation). As I pointed out in my previous post, Congress at least arguably has the power to control survelliance activities like this one through its powers of the purse and its ability to regulate the armed forces and commerce with foreign nations granted in Article I, Sec. 8. While the NSA isn't exactly running around the battlefield, intelligence was a historically military and diplomatic endeavor. I don't think there's much question that Congress can both establish and regulate the NSA by statute, though it might not be able to authorize it to do some things that the President could authorize it to do under the Constitutional grant of executive power, because of the Legislative branch's more limited grant of power.

I personally don't know enough about the technical aspects of the survelliance at issue, or the legal aspects of FISA, to make a judgment there as to whether or not this survelliance was contrary to statute. But on Constitutional issues, it does seem to me that the President at the very least was acting Constitutionally, contrary to the assertions of Eric Muller and others.
12.20.2005 1:50pm
The Original TS (mail):
2. Congress declared war against Al Qaeda and all their allies and enablers in 2001 via the AUMF.

This keeps coming up in thread after thread and it's simply incorrect.

Mere use of force is not a "war." If the United States is going to be "at war" then the Congress has to declare war.

Now, for most purposes, you may argue that there's no difference between Congress authorizing the President to use military force and a declaration of war. But if you want to use being "at war" as an excuse to suspend parts of the Constitution, then there is a very big difference between Congress "declaring war" and Congress "authorizing the use of force."

You simply cannot say, "Well, Congressional authorization to use force is, as a practical matter, authorizaton to wage war. If Congress had actually declared war, then the President could curtail civil liberties. Therefore, a Congressional authorization to use force authorizes the President to curtail civil liberties." That is pure bootstrapping.

The Congress authorized the President to use force to invade Panama and depose Manuel Noriega. Does anyone seriously contend that this Congressional Authorization to Use Military Force also empowered the President to suspend parts of the Constitution?

Authorizing the President to use force is a step short of declaring war and for good reason. The U.S. regularly uses force around the world. It's absurd to suggest that the U.S. has to go on a full war footing every time it needs to use force.

The bottom line here is that if you want to use war as an excuse for curtailing civil liberties, then the Congress has to actually declare war. Moreover, it needs to declare war with full knowledge of the impact actually declaring war will have on both Presidential power and the exercise of civil liberties. You cannot use a Congressional authorization to use force as a de-facto declaration of war on the grounds that Congress failed to read the fine print.
12.20.2005 1:55pm
Lawbot2000:
Im in agreement with The Original TS. It's not a legitimate argument for Bush et. al. to say that this was constitutional because we are war. Congress has had years to declare war if they wanted to, and they haven't.
12.20.2005 2:09pm
Shannon Love (mail) (www):
If I might offer a technical note relevant to the legal discussion.

Almost all information transmitted internationally is sent in the form of digital packets. Regardless of whether the communication is a voice conversation, an email or a webpage, the information is chopped up into smaller pieces called packets and each packet travels independently to the destination. Unlike, analog technology, the same wire or radio frequency carries packets from many different individual communications at the same time. It is not necessary or even desirable that the packets travel over the same physical path.

Intercepting digital packets is nothing like analog wiretaps. You can't tap a physical wire and feel safe that your not exceeding your legal authority. In order to learn anything about a packet based communication, including its point of origin, packets must be captured and read. In most cases, they must be decrypted first. Practically, this means you cannot know whether or not you have the legal authority to read the communication until after you have actually read the communication.

So, the very fact that the NSA has the legal power to monitor ANY digital communications at all means that the NSA has the legal power to read ALL digital communications. I believe the law resolves this problem by requiring that all information related to US persons must be purged with 72 hrs of being captured but the fact remains that the NSA is inherently monitoring all international communications whether a US person is involved or not. We must simply trust that they are forgetting information that they legally do not have access to.

All of our intuitions based on analogies to tapping analog phones or opening letters don't apply to packet based communications
12.20.2005 2:16pm
reliapundit (mail) (www):
the whole controversy might be solved by answering the CORE question:

why did the Buish Admn. NOT seekk to get a court order which they almost certainly could have gotten?

the answer is simple: the intel gathered by this means was intended for use by black ops: renditions and assassinations.

do we want our governemtn doing balck ops, renditoins and assassinations?

i think most people do want our govt doing these things during wartime.

even vehement iraq war critic michael scheuer has repeatedly said that renditions are essential. powell recently said that they've been done fopr decades and with the knowledge and cooperation oif ALL outr allies - even the EU.

and targeted assasinations of al qaeda in iraq or afghanistan or thailand or indonesia or the ohillipines or morrocco or turkey or jordan or ANYHWRE ELSE is also a good thing - a great way to counter-attack against this enemy.

the process which the bush admin. used - getting a concurrence from the USA AG and infroming the Congress and th FISA judge - was intended to deonmctarte that the prez -as CinC was obeying the law as it is spelled out in 1802 and 1801 - which SPECIFICALLY say that the prez can order suveillance wthout a court order if he is surveilling foriegn powers, and previous fed distrioct courts have ruled al Qaeda a fporiweng powers as does the AUMF.

therefore the survellance was legal and constitutional.
and even though the evidence might not be admissable in a court of law, itr was never intended for a court of law, but for the battlefield --- which, as we ALL know, -- in the GWOT is EVERYWHERE!

Goid Bless Bush.
He is doing what needs to be done.
and nothing different from what reagan and clinton BOTH did.
12.20.2005 2:41pm
Medis:
The Ace,

As we have discussed several times now, 1802 does not allow electronic surveillance of a US person without a warrant, even if that US person is suspected of being an agent of a foreign power.

SteveW,

Location matters in different ways depending on the type of surveillance.

If they intentionally targeted the contents of a radio or wire communication of a particular, known US person, then it doesn't matter how they intercepted it--FISA is applicable if that US person is in the United States, provided that the person "has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes."

If they intercept the contents of a wire communication of a person in the United States (not necessarily a particular, known US person), then FISA is triggered if the acquisition occurs in the United States--which makes sense, since one can presumably pin down the territorial location of a wire intercept. It also makes sense that for wire communications, there is no reasonable expectation of privacy requirement, since they aren't broadcast.

If they intercept the contents of a radio communication (again, not necessarily involving a known, particular US person), then FISA is triggered if the sender and all the intended recipients are in the US, but it doesn't matter where it is acquired--which again makes sense, since radio waves aren't tied to territory like wire communications. Also, since radio could be broadcast, this category also has the reasonable expectation of privacy requirement.

Finally, any installation or use of a device for intercepting anything other than radio or wire communications triggers FISA if that occurs in the United States. Again, for this category there is a reasonable expectation of privacy requirement.
12.20.2005 2:45pm
subpatre (mail):
The United States is at War.

In the opinion by Justice O'Connor on Hamdi v. Rumsfeld, joined by The Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer,

"We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use."


Justice Scalia, joined by Justice Stevens, dissents but says,

"The relevant question, then, is whether .... by aiding the enemy in wartime."


Justice Thomas dissents, but says

".... detention falls squarely within the Federal Government's war powers."



Justice Souter, joined by Justice Ginsburg, doesn't address the issue in his concurring, dissenting concurrence.

At minimum (7 to 2), the United States is at war matching the legal burden of Congress' power under the Constitution's Art I Sect 8 "To declare War, ...". The 'remedy' for those numerous objections is for the Executive to declare the war over, probably by winning; or by Congress' undeclaring.

Until it's ended though, the SCOTUS has reviewed the facts and found the nation to be at war.
12.20.2005 2:50pm
mls (mail):
The Ace -- Now I get it. You're arguing that 1802 allows "unwarranted" eavesdropping of suspected al Quaeda members because they are 1801(a)(4) foreign powers. But 1802 doesn't create a warrant exception for (a)(4) foreign powers (terrorists), only for (a)(1)-(3) foreign powers. AND the 1802 exception only applies IF "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." I think Prof. Kerr has the better argument here: "So as I read the statutes, Congress was trying to give an exception for monitoring foreign governments (a1, a2, a3) but not terrorist groups (a4, a5, a6), so long as no citizens or lawful permanent resident aliens were being monitored. There are interesting questions of how that might have applied to Al Qaeda in Afghanistan, but I don't think we need to reach them. It's my understanding that the program monitored both citizens and non-citizens, so I don't see how the exception is applicable."

And this doesn't have anything to do with the "relevant case law" that distinguishes between law enforcement searches and national security intelligence searches. [That's a very important issue, but it isn't the one at hand right now.] FISA is about intelligence gathering, not about law enforcement -- hence the name Foreign Intelligence Surveillance Act! -- and what we know of the NSA program tells us they have violated FISA. FISA was trying to draw a distinction in 1802 between *domestic* intelligence spying (involving "United States persons" as defined by the statute) and planting a bug in the Pick-Your-Foreign-Country Embassy or the Country-Enemy-Number-One Trade Delegation. It wasn't a distinction between law enforcement and intelligence gathering.

Perhaps Congress should have made a warrant exception for spying on terrorists. Then at least there could have been a public debate about the proper weights to be given to privacy on the one hand and security on the other. Perhaps Bush should have asked for an amendment of the statute. Again, we could have had that very important policy debate. But Congress didn't and Bush didn't. So it appears that the warrantless spying by NSA that we've learned about does not in fact comport with FISA. Bush broke the law. And he says he plans to do it again. So the only real issue on the table is whether Article II allows Bush to break the law.
12.20.2005 2:58pm
Jack John (mail):
Medis:

I don't think Hamdi addresses the effect of the 2001 AUMF on a statute like 18 USC 2511 (as opposed to 18 USC 4001 or (at least aruably) 50 USC 1809).


I disagree. You are narrowly interpreting Hamdi based on:
1. Carl Levin's opinion, which is a partisan one.
2. Canons of construction. I already addressed this, above: "I would note that canons of construction are not canons of law; they are prudentially-exercised interpretive guidelines. Judges can discard them outright in exceptional cases or decide that competing values, or canons of construction, outweigh them in any kind of case, or that legal issues are so sharply presented that tie-breaking canons of construction are unnecessary or insufficient."

But I will also add this: If the President has C-in-C power to authorize these taps, then FISA is invalid.
12.20.2005 3:12pm
El Capitan (mail):
I could entirely be missing the boat, and if so I apologize. But isn't there a large body of academic work on the constitutionality of the War Powers Act? It strikes me as an analogous issue.
12.20.2005 3:31pm
Rod Thompson (mail):
The Original TS - your argument about

'Authorizing the President to use force is a step short of declaring war and for good reason. '

is a red herring. Any use of force by one nation to impose its will on another is an act of war whether you call it 'war','blitzkrieg', 'police action' or 'intervention'. The Fourth Cicuit decision in Hamdi frequently cites and acknowledges the President's war powers in the current conflict. Were there a de jure or de facto difference between the two, then logically the President's war powers would not apply.



In regard to the NSA activities.
(1) everyone is jumping to conclusions, the only way to determine if FISA has been violated is by the disclosure of the technical details of every intercepted communication.
(2) the technical details are why this program is classified and they won't (and in my view shouldn't) be disclosed.
(3) Bonus prediction - the courts will rule that this a political issue between Congress and the Executive and that if Congress doesn't like it, they'll have to defund the program.
(4) on a historical note, this program is equivalent to the interception and systemic reading of mail bound for Europe that the US and UK did on Bermuda during WWII.

For conservatives: The Administration may have violated the law, albeit only in that they didn't apply for retro-active warrants.

For liberals: "These aren't the driods you're looking for." This issue will not lead to the impeachment of the president.
12.20.2005 3:37pm
NickM (mail) (www):
The Supreme Court has ruled for 2 centuries, dating back to the Barbary Pirates, that a Congressional authorization for the use of large-scale force counts as a LEGAL declaration of war. The "magic words" argument has no merit, and has been rather clearly rejected in the Hamdi case by the Supreme Court as to this war.

Nick
12.20.2005 3:48pm
Paul Virkler (mail):
As to the war/aurthorize to use force issue it seems a bit disingenerous to say that the C-in-C has less authority to engage in counter espionage when authorized to use force. Here the troops are at risk against a secretive enemy. We know less about the enemy, his goals and resources than enemies in the past. If Congress had wanted to restrict the grant of authority to use force it should have said so. Saying this, we know that Congress would never had sone so.
12.20.2005 3:54pm
jgshapiro (mail):
At minimum (7 to 2), the United States is at war matching the legal burden of Congress' power under the Constitution's Art I Sect 8 "To declare War, ...".

Subpatre is correct and the Original T.S. is not: it is impossible to read Hamdi without coming to the conclusion that SCOTUS has determined that the AUMF was a declaration of war for constitutional purposes.

It is also impossible to listen to the statements of various members of Congress on the "war" without coming to the same conclusion. To my knowledge, no member of Congress has ever objected to any of Bush's actions as CIC with respect to the war on terror on the ground that we are not in a (formal) state of war or that such actions would require a formal declaration of war separate and apart from the AUMF.

Members of Congress, you would think, would be the *first* to make this objection if they thought it was legitimate, since it is Congress's shoes the president would be stepping on by using war powers in
the absence of a war.
12.20.2005 4:03pm
subpatre (mail):
Jack John wrote: If the President has C-in-C power to authorize these taps, then FISA is invalid.

Executive Power in peacetime and executive Power during war aren't the same. [Please nobody say they think the Founders were that short-sighted] The President is given deference in many areas when the office is fulfilling it's primary constitutional role as protector and defender.

FISA may be valid some of the time but not all. Certainly at it's writing, the concept of "a real, declared war" was remote.

Since Congress has been briefed all along on the current surveillances, an analogy may be the past non-enforcement of adultery laws. Once war is over, the balance shifts again. Rather than re-write, to re-write again later, tacit consent may work.

If FISA is invalid under executive War Powers, but valid under peacetime; must it be declared? Many here will obviously be uncomfortable with a 'law in limbo', but I'm unaware of anything preventing that situation when Congress and the President agree to it.
12.20.2005 4:07pm
Uncle Fester (mail):
These are very interesting comments, and the legal issues are fascinating. My purely subjective sense is that the government spent some time looking into this beforehand, and a) it will eventually be found to be perfectly legal and b) that the true test will be whether or not the communications/taps in question had this feature: "Was there a reasonable expectation that the communication would or could lead to the use of (military?) force against a non-United States person?"

One might rephrase that sentence- it's fairly rough- but it sort of demonstrates the split between the statutory and the constitutional. I think all they have to show is the reasonable connection to a foreign threat and all other objections fall aside, rightly or wrongly.

It will be legal if the show they are looking for actionable intelligence more than convictions. Remember, it's easier and faster for governments (including ours) to kill people than to convict them. Particularly foreigners.
12.20.2005 4:18pm
The Original TS (mail):
Subpatre,

You're kind of proving my point. Take a close look at the O'Connor quote you provided except with different emphasis.

"We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use."

So Congress authorized the President to use "necessary and appropriate force." Is semi-indiscriminate wiretapping a use of "force?" No, it is not, so you never reach whether it was "necessary and appropriate." Congress did not authorize the President to "do everything imaginable including suspending habeas if he feels like it," Congress authorized the use of "necessary and appropriate" force.

This does not, by the way, reach the question of whether even Congress can waive its legislative wand and make the Fourth Amendment disappear in a puff of smoke. There is a certain thread in Supreme Court jurisprudence that suggests federal statutes, let alone Congressional resolutions may not, strictly speaking, override the actual Constitution.

Perhaps we ought to make a distinction between a "war" which is large groups of people shooting at each other whatever the legal underpinnings, and a "War," which Congress officially declares and authorizes the President a great deal more leeway.
12.20.2005 4:18pm
jgshapiro (mail):
The Commander in Chief (CINC) is named such in the Constitution for a reason. It is for that same reason that only the congress may declare war. When Congress gives the green light, the Constitution sees to it that the CINC has the unfettered opportunity to win that war. The only significant power that congress has to derail a war it has authorized is to deny funding to such a war.

The interesting part of the argument that the president can do nearly whatever he wants in a time of war is that it gives Congress a disincentive to ever declare war (or pass an AUMF). The denial of funding cannot really happen for practical reasons (soldiers would die), so this is an ineffective way for Congress to object to the way in which the war is being fought -- particularly if you assume that Congress cannot (without violating the CINC clause) tie the funds to a requirement that certain tactics not be employed .

I think the constitutional language regarding the president's CINC powers does not preclude Congress from making broader policy decisions on how the war is fought (e.g., no torture, no warrantless wiretaps on U.S. soil or of U.S. persons, etc.). But I have no basis for this belief other than a common sense reading of the entire constitution, including Congress's authority to make rules concerning captures on land and water and to make rules for the government and regulation of the land and naval forces.

Is there any case law (apart from the Steel Seizure case and Hamdi) delineating what does and does not fall within the president's powers as CINC?
12.20.2005 4:37pm
The Original TS (mail):
The "magic words" argument has no merit, and has been rather clearly rejected in the Hamdi case by the Supreme Court as to this war.

It's not a "magic words" argument at all. It's a matter of Constitutional authority and Congressional intent. You make think that a Congressional authorization to use force is a Declaration of War but neither the President nor Congress think so.

The War Powers Act, under which these resolutions are passed, makes it crystal clear that a resolution under the Act is not a Declaration of War. The President, and not this President, EVERY President, asks Congress to pass a joint resolution authorizing the use of force while simultaneously declaring that he DOES NOT need Congressional authorization to use the military force he intends to use because the he claims the Executive is authorized to use military force even when there is no War. The War Powers Act itself, IIRC, authorizes the President to use military force for up to 60 days before he needs to ask for Congressional authorization.

How do you get from that clash of Constitutional claims to "Everybody agrees that passing a resolution pursuant to the War Powers Act is a formal Declaration of War?"
12.20.2005 4:38pm
Charlie (Colorado) (mail):
Shannon, that point about packet-switched communication is a lovely one; I hadn't thought of that but it's got lots of lovely implications.

On the suggestion that the AUMF was not a "declaration of war", I'll just note that Joe Biden disagrees with you:

I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever.
12.20.2005 4:41pm
Some Guy:
Yes, everything depends on Hamdi. The administration realizes this. And it will probably take a court case to settle it.

The fall-back position is the "foreign power" ambiguity. The administration could take this--and claim that al-Qaeda, for example, is a faction of a foreign power...but I suspect they would immediately be in trouble regarding the treatment of terrorist detainees. I don't know why FISA doesn't extend itself to collaborators with terrorist organizations, but that seems to be the case, doesn't it?
12.20.2005 4:54pm
subpatre (mail):
The majority Hamdi decision uses the standard of "War" in their determination of Hamdi's circumstances. The cite given was an example, not a farfetched attempt to make a predetermined case whole-cloth from a single quotation.

Some more examples:
"The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war."

"Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here."

"If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, ..."

"Nor is the weight on this side of the Mathews scale offset by the circumstances of war or the accusation of treasonous behavior,...."

"On the other side of the scale are the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States."

"This focus meddles little, if at all, in the strategy or conduct of war, inquiring only into the appropriateness of continuing to detain an individual claimed to have taken up arms against the United States."

"While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, ..."

For those bothered by the AUMF's wording --lack of the magic words "hereby formally declared"-- they should try working up the World War I Joint Resolution, or the WWII Declarations against Germany and Japan to fit AlQeada; a network of shifting alliances and allegiances among organizations located throughout the world.

The President says we are, so does Congress and the Supreme Court. The United States is at War. Deal with it.
12.20.2005 5:10pm
The Original TS (mail):
Some Guy, thanks for reminding me about something I wanted to mention.

There's a suggestion in Fourth Amendment jurisprudence that the Fourth Amendment only applies to "persons who are part of a national coummunity or who have otherwise developed sufficient connection with this community to be considered part of that community." That language is from a plurality opinion in Verdugo-Urquidez 494 US 259. This suggests that people who have come here specifically to harm the U.S. are not covered by the protections of the 4th Amendment. I mention this only in passing as 1) I don't believe the NSA monitoring was restricted to this class of people and 2) Verdugo-Urquidez is not a case I would take to the bank.
12.20.2005 5:16pm
Wince and Nod (mail) (www):
Well, if there has been a Declaration of War, look at § 1811:
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.
Iread this as allowing up to fifteen days worth of surveillance on any given target, because we aren't in the habit of fighting fifteen day wars.

Yours,
Wince
12.20.2005 5:27pm
Justin (mail):
Wince, you're incorrect (and that interpretation would be unconstitutional regardless). The plain meaning of the rule indicates that the law is designed to allow wiretapping in an emergency situation after Congress has declared war. The 15 days is in case the outbreak of war itself has created exigent circumstances.
12.20.2005 5:47pm
Justin (mail):
I hope the warbirds realize there's a difference between "commander in chief" and "military dictatorship" where one gives the administration civilian control over the ARMED FORCES subject to Article I (in times of peace and the times of war), and the other gives the administration absolute control over the civilian population as well, plus pretty much disbands Congress (more like what they seem to be arguing).
12.20.2005 5:49pm
Justin (mail):
PS I hope you people are aware that your construction of the President's wartime powers will prevent Congress from ever authorizing the use of force again, ever. Good thing those framers weren't short sighted!
12.20.2005 5:52pm
Wince and Nod (mail) (www):
Justin,

It's not plain to me. You are telling me that Congress created an exception which covered only the first fifteen days of the war? That doesn't make any sense. So either make your plain meaning plain, or give me some legislative history. Futhermore, why would my interpretation be unconstitutional?

In other words, show your work, so the other members of the class can follow along. Some of us haven't done the remedial reading.

Yours,
Wince
12.20.2005 5:54pm
Jack John (mail):
Subpatre: FISA may be valid some of the time but not all.

I did say "THESE" taps. Not any taps.

Justine: I hope the warbirds realize there's a difference between "commander in chief" and "military dictatorship"

From the WashPost: To a Washington Post reporter who asked about "unchecked" power, Bush retorted: "To say 'unchecked power' basically is ascribing some kind of dictatorial position to the president, which I strongly reject."
12.20.2005 5:55pm
The Original TS (mail):
Let me just try and wrap this up as billing calls.

The reason I'm drawing this distinction between Congress Declaring War and Congress "Authorizing the Use of Force" is that many people are trying to justify allowing the President to abrogate Constitutional protections because we are "at war." As Wince points out above, even certain provisions in The FISA are triggered by a Declartion of War.

I'm saying that it is both reasonable and necessary for Congress to have some intermediate speed between "Peace" and "War." Not only do I think it's necessary, I think it already exists. Hands up everyone who thinks the U.S. was "at war" with Lebanon when it sent troops in an (ultimately futile) effort to stabilize the country.

Let me put it another way. I'm all in favor of the U.S. stepping in to help out in places around the world, even if it's necessary to use military force to do so. But if sending troops to some place like Bosnia or Somalia (neither of which did) is going to require Congressional authorization to use force and Congressional authorization is an ipso facto Declaration of War that hands the Executive unilateral power to suspend the Constitution, Bosnia and Somalia can go hang.

I think you'll find I'm not alone in thinking this way. I also think that, should the Congress ever come to believe that passing a resolution under The War Powers Act gives the Executive the authority to ignore the Constitution, it'll be damn difficult for the President to ever get such a resolution passed.
12.20.2005 6:03pm
mls (mail):
For that matter, Wince, could you show YOUR work, too? I'm not sure how you got from the language "for a period not to exceed fifteen calendar days following a declaration of war by the Congress," to 15 days worth of surveillance on each target. It looks to me like it says that for the first 15 days following a declaration of war, Katie bar the door! Just surveille and surveille to your heart's content. And on day 16, go back to following the other provisions of FISA.

I don't find persuasive the argument that we don't usually fight 15-day wars as the justification for a new 15 days against each target. Of course we COULD fight 15-day wars. Day 1 declare war. Day 2 drop a nuclear bomb. Day 3 accept the enemy's surrender. Day 4 war over.
12.20.2005 6:49pm
Provincial Congress (mail) (www):
I agree with Barry's comment above. Ultimately, Prof. Kerr's entire conclusion regarding legality is resting precariously on a speculative interpretation of a single line of unsupported dicta from the minority opinion in a marginally related case before a different Court.
12.20.2005 6:49pm
Robert Romano (www):

It's not a "magic words" argument at all. It's a matter of Constitutional authority and Congressional intent. You make think that a Congressional authorization to use force is a Declaration of War but neither the President nor Congress think so.


Then your argument would have to be that Congress was not using its power to declare war when it authorized the use of force.

Please then cite the section of the Federal Constitution wherein Congress has the power to authorize the use of force which is distinct from the power to declare war.

Under what section is Congress acting when it "merely" authorizes the use of force?

I'll save you the trouble; it's not in there.

Congress only has one power by which to authorize the use of force, and that is the power to declare war, and that's exactly what it was doing.

Additionally, the President has the power, as Commander-in-Chief, and the sole executive of our government - there is only one precisely for these reasons - to make the determination what is necessary and appropriate force precisely consistent with that authorization.

In other words, this is a political question with which the President has discretion.

This is a separation of powers issue.

Finally, if the FISA does not have an exception for another statute, such as an authorization to use force such as was passed in September, 2001, then the FISA is unconstitutional precisely because it would pre-empt the President's role as Commander-in-Chief of our nation's military. The NSA is a part of the DoD and operates at the President's direction to gather intelligence in this case on enemy targets.

Congress cannot grant the President the authority to do what he determines to be necessary and appropriate to execute the war effort, and then claim that his hands are tied by the FISA to do just that. The legislative branch cannot have it both ways. If the AUMF is not an exception to the FISA under the FISA, then the FISA is unconstitutional.
12.20.2005 6:58pm
NickM (mail) (www):
This form of Congressional resolution long predates the War Powers Act. We have literally 2 centuries of precedent that an authorization in this manner by Congress to use force is, under the Constitution, a declaration of war. As to the question of Somalia, Bosnia, or anywhere else the U.S. government might wish to send small numbers of troops, Dellums v. Bush sets forward guidelines as to what triggers the constitutional requirement for a declaration of war and what falls within the President's inherent powers.

This isn't a blank slate.

Nick
12.20.2005 7:05pm
David H (mail):
The Constitution does not limit the President to being Commander in Chief only when Congress declares War, so whether AUMF was or was not an Artical I declaration of war is irrelevant to the scope of the President's Article II powers (which, as has been noted, are not limited like Art. I limits Congressional power).

Congress clearly does not have the power to revoke the President's Article II power. That can only be done by amendment. The President's executive power may be limited by Congress in some areas in that Congress must pass the laws that the President is charged with executing. Conducting war, however, is not one of these areas. That is, Congress doesn't conduct the war by passing laws that the president must execute. The Constitution gives the President all power to conduct a war (or to use force pursuant to Congressional authorization) once authorized - Congress is in fact limited to defunding the war (admittedly political suicide as a practical matter, but it is what it is).

The remedy is a big issue. Remember, if police conduct a warrantless search, the police are not thrown into jail. Instead, the evidence is merely excluded from trial.

Also, I saw Paul Rothstein on TV last night saying that FISA was written to preserve intact the full extent of the President's Article II power. Any validity to this comment?

The use of terminology is telling: If you just want to over-simplify and call it merely "domestic surveillance," then we pretty much know where you stand on this issue.

Bottom line: The President is immune from criminal prosecution of action taken in his capacity as President. Either it's an impeachable offense or it isn't anything. And since we all know that the President isn't going to be impeached by this Congress, all we're going to get is a lot of hot air, political grandstanding and similar "sound and fury, signifying nothing."
12.20.2005 7:08pm
Wince and Nod (mail) (www):
mls,

I can think of three scenarios. Two of them do not make sense. One does.

1. The Attorney General has a free-for-all during the first fifteen days of a war. This makes no sense to me. Why should the Attorney General get to do any surveillance he wants during the first days of the war, and not later? Do we think that our enemies will stop trying to spy after fifteen days? Do we think that it only takes fifteen days for the intelligence agencies to ramp up, even though the size of the FISA court is limited and the Attorney General is not allowed to delegate the task of applying? So, can someone explain this? There may be a perfectly good rationale under which this interpretation makes perfect sense and I haven't the imagination to think of it.

Your argument that Congress thought all our wars should be nuclear doesn't make any sense to me either.

I'm not asking that I agree with the rationale. Only that it make sense.

2. The Attorney General has fifteen days to authorize electronic surveillance without a court order for the remainder of the conflict. That doesn't make any sense to me either, but it is more sensible than number one.

3. The Attorney General has fifteen days to gather intelligence on any given FISA target. This would be useful, and makes sense.

There may be other scenarios. I'd be very interested in hearing them.

Yours,
Wince
12.20.2005 7:16pm
Tom Holsinger (mail):
IMO it would help to define some terms in light of technical information which may have escaped some people.

Various long-standing programs of the National Security Agency AUTOMATICALLY MONITOR all, or as much as possible, electronic communications to and from the United States and foreign countries. "Automatically monitor" here means that machines listen to audible communications and record, albeit briefly, digital ones, and subject all of those to computerized "traffic analysis" looking for recognizable patterns of interest, such as "key word" searches. Only when the automatic systems kick such patterns up to the level of human operators can there even be any investigation of the "contents" of the communications within the meaning of this discussion.

I.e., almost all of what these NSA programs have done to date lies below the threshold of interest of this legal discussion. But the software technology ("search engines") here is rapidly improving, and at some point the automatic systems will probably be sufficiently sophisticated to become pertinent to this legal discussion. At that point we will probably encounter a need for some technological (software) sophistication by those taking part in the discussion.

Given the problems Congress has had regulating digital piracy, I suspect we, and they, will have an interesting experience evaluating the privacy issues with national security-related electronic eavestropping of digital communications.

Next is the issue of where the monitoring takes place. It is definitely legal when done outside the borders of the United States. The NSA monitoring here can take place from outside the United States, and probably does to a large extent, though I suspect some takes place within the U.S. This may be a distinction without a difference already, and will probably be so in the not too distant future.

IMO we should focus on the issue of communications which take place entirely within the United States. In addition to the technological issues mentioned above, there is one with the reasonable expectation of privacy in international communications. Ours is not the only government which monitors those, and the technology permitting this is rapidally decreasing in price while improving in sophistication and ease of implementation.
12.20.2005 7:34pm
karen:
Anomolous, I don't know if anyone else has responded (it will take too long to read all comments - but I wanted to make sure this point was brought up.

It's not the *storage* of every phone call ever made that is the limitation, but the *capture*. At 8 kbps per call, a T1 line would be overloaded trying to relay less than 200 concurrent calls. Even an OC-3 pipe could only handle between 10000 and 20000 concurrent calls. If you assume that a phone company services a million people who have a 1% chance of being on the phone at any given moment (one 15 minute call per day) that would take an OC-3 pipe or 50 T1 lines dedicated to transferring calls from the phone companies to the government storage facilities.

That is what makes the claim that Eschelon captures every voice call made not only wrong, but absurd.
12.20.2005 8:33pm
Charlie (Colorado) (mail):
TS:

The reason I'm drawing this distinction between Congress Declaring War and Congress "Authorizing the Use of Force" is that many people are trying to justify allowing the President to abrogate Constitutional protections because we are "at war." As Wince points out above, even certain provisions in The FISA are triggered by a Declartion of War.


TS, given that the (Democrat, attorney) Congressional author of the resolution says it most certainly was a declaration of war, is this anything but an academic point?

Beyond any other case law etc, it would seem that this, on its face, establishes Congressional intent.
12.20.2005 9:16pm
Medis:
Wince,

15 days is plenty of time for Congress to amend FISA, or to temporarily suspend FISA again. I think that is the obvious answer to your question: after a declaration of war, the government is free from FISA for 15 days, and if by then Congress has not granted an extension or amended FISA, FISA kicks back on.

Jack John,

For what it is worth, I'm not relying on Levin. I'm relying on the actual text of 18 USC 2511. Indeed, if you wanted to, you could go back to Orin's original post on last Thursday evening and see my first comment on this subject.

Anyway, this isn't some hypertechnical point about canons of construction. My point is simple: the statute at issue in Hamdi and 50 USC 1809 are both open-ended about what could provide authorization. But 18 USC 2511 is different: it makes Title 18 and FISA the "exclusive means" for conducting such surveillance.

And the claim that the 2001 AUMF implicitly authorized detentions and the claim that the 2001 AUMF implicitly repealed the relevant language in 18 USC 2511 are fundamentally different, because only the latter proposition involves an actual change to the clear text of a preexisting law. And once again, this is a claim (that the 2001 AMUF repealed prior laws as the President sees fit) without a clear limiting principle.
12.20.2005 9:24pm
The Original TS (mail):
Then your argument would have to be that Congress was not using its power to declare war when it authorized the use of force.

Please then cite the section of the Federal Constitution wherein Congress has the power to authorize the use of force which is distinct from the power to declare war.

Under what section is Congress acting when it "merely" authorizes the use of force?


How about the Commerce Clause? It authorizes Congress to do everything else.

Seriously, though, there are two responses to your question. First, the Executive consistently maintains that these "uses of force" are not actual wars and do not require Congressional approval.

Second, you're not reading Section 8 very closely. Congress has all kinds of powers to regulate the military and the "use of force" under the Constitution short of actually declaring war. Apart from issuing Letters of marque and Reprisal (something I've always wanted to get) and making rules concerning captures on land and water, Congress can make rules for the government of land and naval forces. You don't have to stretch this very far for Congress to have the authority to make rules about when the land and naval forces can shoot at people.
12.20.2005 9:34pm
Anomolous:
Karen,

I really don't think bandwith is a problem. With the advent of DWDM (dense wave division multiplexing) and 0C-192 (10 GB/s) chipsets becoming increasingly popular in metro area netwoks there is much more dark fiber laid than is currently being used. And don't forget progress continues quite rapidly. OC-768 (40 GB/s) is becomming commercially viable and OC-3072 (160 GB/s) is already working in the lab. An agency with almost unlimited resources wouldn't have any issues with cutting edge technology.
12.20.2005 9:36pm
Medis:
TOTS,

I personally think the Necessary and Proper Clause also gives Congress the authority to make laws about war. It says:

"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

What is interesting about this clause is that it is NOT limited to Congress's own powers ... it also applies to ALL other powers vested by the Constitution, so presumably it applies to the President's Commander in Chief powers.

So, the idea that the President's CiC power, or his Executive power in general, somehow implies the existence of a law-free zone simply does not accord with with plain language of the NPC.
12.20.2005 9:52pm
Robert Romano (www):

First, the Executive consistently maintains that these "uses of force" are not actual wars and do not require Congressional approval.


Not this President. According to him, consistently, we are at war. And that doesn't wash. Besides, I'm approaching this textually. So a claim made is merely that, and it doesn't hold with this President, since he has consistently stated we are at war.


Apart from issuing Letters of marque and Reprisal (something I've always wanted to get) and making rules concerning captures on land and water, Congress can make rules for the government of land and naval forces. You don't have to stretch this very far for Congress to have the authority to make rules about when the land and naval forces can shoot at people.


Generally, it appears you're talking about rules of engagement, which are conditional, and similarly, you are dodging the point. The AUMF was unconditional.

Was the AUMF a letter of marque or reprisal? No.

Was it a rule for captures on land or water? No.

Was it a rule for the government and regulation of the armed forces? No.

Was it a declaration of war? If not, then Congress had no power to do it. If so, and that's my case, then we are at war.

If the AUMF's constitutional authority is not derived from the power to declare war, then which section, specifically, was it derived from? You're being general.

You said you can stretch it, so start stretching. Are you saying that the authority doesn't come from the power to declare war? If it doesn't, then which section does it come from?
12.20.2005 10:09pm
Tarheel (mail):
Medis, The Necessary and Proper Clause does not give Congress the authority to decrease the powers the Constitution gives other branches. If Congress passes a law that limits the CIC more than he is limited by the Constitution, that law has no force.
12.20.2005 10:16pm
mls (mail):
Robert Romano says that the Use of Force resolution must have been a declaration of war because the constitution only gives congress the power to declare war, not something less than war:

Under what section is Congress acting when it "merely" authorizes the use of force?

I'll save you the trouble; it's not in there.


Hmmmm. Is it possible that Congress gave the President what he asked for? I don't seem to recall him asking for a declaration of war, and having to settle for the "use of force" mumbo-jumbo. Asking Congress for this resolution was basic CYA on Bush's part, not a desire for a declaration of war. It may well be that Congress had no constitutional authority to do what it did. Kinda like they lack the constitutional authority to issue a "sense of the House" resolution that there is a war on Christmas.

Oops! Maybe that one was under the congressional power to declare war!
12.20.2005 10:41pm
Tom Holsinger (mail):
John Yoo has an excellent analysis of the war-making power in his book, The Powers of War and Peace, though he mistakenly (IMO) concentrated solely on the Constitutional issues and omitted any reference to the vast statutory powers granted a President upon a formal declaration of war. I feel the latter would have better highlighted the constitutional issues.

Yoo's basic argument is that a President's power to MAKE war is inherent in his commander-in-chief power, and that the only limitation on it is Congress's budgetary power. The chapter on this in his book shows how that was in fact the late 18th Century concept of the differences between the legislative and executive powers, and how that has been the way the process has worked for us ever since. President Clinton's use of force in Kosovo was without any Congressional sanction whatever, and well illustrated Yoo's theme. In particular see the distinction between the war-making powers of state governors under the last paragraph of Article I, section 10, and that of the president under Article II, section 2.

For purposes of this discussion, though, the key point is that a President's authority to conduct electronic and other surveillance of American citizens at home and do many other things, is far, far, greater, upon a formal declaration of war by Congress than its (empty according to Yoo) "authorization to use force". The reason is purely statutory - there are scads of statutes which give him this additional authority.

I.e., trust me, there is an enormous difference in a President's domestic authority during hostilities with and without a formal declaration of war. Which means that Congress could, if it wanted, create statutory degrees of war dependent on its approval by the precise wording of resolutions.

Getting back to the subject at hand again, I suggest that a President has certain minimum Constitutional war-making powers which Congress may not abrogate, which seems to include some degree of surveillance of American citizens greater than in peacetime, and that Congress may by statute regulate a greater degree. I.e., FISA may have more bite here than some suspect.
12.20.2005 10:47pm
mls (mail):
The posts about technology are really interesting. I very much appreciate the information, because I can't even pretend to understand the technological side of this NSA business. But does it really matter? I keep wanting to go back to the basics -- think Scalia's opinion in Kyllo (thermal imaging). For him, the issue was not about the technology, it was about what the technology revealed. It was key to him that the technology revealed what was going on in the home, and using his typical originalism argument he concluded that the framers wanted the 4th amendment to protect the privacy of the home.

So lets start with the home. If this spying technology reveals a conversation an American citizen has in his home, it wouldn't much matter HOW it was done, would it? Does it make a difference if that citizen-placed phone call from home crosses international boundaries? So long as it wasn't the person at the other end of the phone who revealed the contents of the conversation, then the technology that revealed what happened in the home would be a problem for Scalia just like the thermal imager was, wouldn't it? Why does the spying technology make a difference here?
12.20.2005 10:55pm
The Original TS (mail):
Tarheel, Actually, the War Powers Act does indeed cite the necessary and proper clause as a source of its authority.

Was it a rule for the government and regulation of the armed forces? No.

Of course it is. It's a rule about the when it is proper or improper to deploy them. Here's the language from The War Powers Act itself.

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
-
-
-
Within sixty calendar days . . . the President shall terminate any use of United States Armed Forces . . . unless the Congress (1) has declared war
or has enacted a specific authorization for such use of United States Armed Forces . . .

Resolutions under The War Powers Act are "specific statutory authorizations." They are not, therefore, Declarations of War. Now you can argue that this is all unconstitutional tosh and The War Powers Act is invalid but you can't argue that Congress thinks it's Declaring War when it passes resolutions under The War Powers Act.

Not this President.

Yes, this President, too. Even this White House has consistently maintained, even in the invasion of Iraq, that the President needed no Congressional authority to act. If this is true, and the President did have authority to invade Iraq without Congressional authorization, then invading Iraq couldn't have been a War, could it?

Presidential/Congressional rhetoric makes handy sound bites but is no substitute for legal analysis.

Coincidentally enough, Cheney's just given an interview where he says,

[M]any people believe" the War Powers Act, enhancing the power of Congress to share in executive branch decision-making on war, is unconstitutional and said "it will be tested at some point. I am one of those who believe that was an infringement on the authority of the president.

So yes, no President has ever accepted The War Powers Act as constitutional and every President has maintained that he had full authority to make "war" (but not "War") even absent a joint resolution under The Act.
12.20.2005 11:21pm
The Original TS (mail):
Tom, while I haven't seen Yoo's book, I'd be willing to buy the analysis -- which is also being advanced by mls -- that these resolutions have no legal impact. (Parenthetically, I don't necessarily agree that Congress can't pass any laws governing the use of force except for spending bills. But that's not critical here.)

The point I've been trying to make all along is that if you're going to use "War" as an excuse to curtail civil liberties, then Congress needs to declare one. The President's inherent war-making powers don't include making war on the Constitution, no matter how good an excuse he thinks he has. As a practical matter, the U.S. will pretty much always be needing to use some level of military force somewhere in the world all the time. I'm perfectly happy to concede that the President can use his inherent powers as Commander-in-Chief to enforce a no-fly zone over Iraq. It does not follow, however, that this "state of war" (small w) somehow authorizes him abrogate the Fourth Amendment.
12.20.2005 11:41pm
Medis:
Tarheel,

You seem to think FISA, if applied to the armed forces, would somehow take something away from the President's authority as Commander in Chief. But I actually think that is a false setup, because I think you are assuming something false about what it means to be a military commander.

A military commander does not have the authority to issue unlawful orders. So, passing laws affecting the military does not "limit" the authority of military commanders, because military commanders never had the authority to issue unlawful orders.

So, this notion that somehow the Congress "limits" the President's Commander in Chief authority when it passes laws like FISA is based on a false assumption. Like any other military commander, the Commander in Chief has no authority to issue unlawful orders. So FISA does not take any authority away from the President, because he never had such authority.

I think people make this mistake because they confuse the President's desire to do whatever he wills with his constitutional authority. But being Commander in Chief does not mean the President gets to do whatever he wills with the armed forces. Rather, it means exactly what it says: he is the highest-ranking commander in the military hierarchy. But like all such commanders, he has no authority to issue unlawful orders. And he never did.
12.20.2005 11:42pm
Tom Holsinger (mail):
mls,

A telephone call placed from an American citizen in his home in America to his mother doing tourist stuff overseas WILL be monitored by the National Security Agency, most likely from an overseas listening post, and that has been quite legal for a long time. It is a communication which crosses into international territory, and it is quite irrelevant who originated the call.

"Monitoring" does not, however, rise to the level of anyone beyond the participants paying any attention to the contents of the conversation. The contents are subjected to automatic analysis, and only after several layers of computerized analysis might a human employee of the government pay any attention to it. That is where "monitoring" turns into "surveillance".

It is my opinion, however, that any part of this discussion devoted to communications of which either end is outside the U.S. is an utter waste of time. The laws permitting this go back 30-40 years.

I'd rather we focused only on communications where all the participants physically reside within the borders of the United States.

The Original TS:

President Clinton thoroughly violated the War Powers Act during his intervention over Kosovo. That is pretty good evidence that the Act has no force and effect.

I encourage those who feel the War Powers Act has any meaning to devote their full attention to this, to the legality of interception &surveillance of electronic commmunications from the U.S. to any foreign country, and to the Constitutionality of the income tax.
12.20.2005 11:56pm
Aaron:
Can't argue with TS's logic.

No one is arguing that the President does not possess the power to order the armed forces into armed conflict with other nations pursuant to his CINC powers; that, however, is de facto war.

What TS has brilliantly articulated is the de jure state of war that triggers the extra-ordinary plenary power of the executive to direct the conduct of military affairs, AND keep the peace at home. A declaration of a state of war between the United States and some foreign power must be done by CONGRESS.
12.21.2005 12:01am
Jack John (mail):

this isn't some hypertechnical point about canons of construction. My point is simple: the statute at issue in Hamdi and 50 USC 1809 are both open-ended about what could provide authorization. But 18 USC 2511 is different: it makes Title 18 and FISA the "exclusive means" for conducting such surveillance.

And the claim that the 2001 AUMF implicitly authorized detentions and the claim that the 2001 AUMF implicitly repealed the relevant language in 18 USC 2511 are fundamentally different, because only the latter proposition involves an actual change to the clear text of a preexisting law.



This is just a rehash of your original argument that any reading but yours violates canons of construction. Canons of construction aren't law, as I have addressed more than once. Your argument has no legal basis.
12.21.2005 12:02am
Tom Holsinger (mail):
Original TS again,

Yoo limited his subject to the powers of the three branches of government in foreign affairs, and ignored the domestic side save as to their power struggles with each other.

At this point I agree that we cannot so limit our focus. The domestic powers of a President in war are disputed. Congress has given Presidents vast statutory powers in formally declared wars, but there have been only five of those in our history compared to at least ten times that many undeclared ones.

As a practical matter a President needs more domestic power during any conflict than in peacetime, and the more serious the conflict, the more power he needs. Yoo made a useful point concerning presidential exercise of war power abroad - that this is necessarily subject to a political struggle between the branches of government as well as the political factions of the time. I suggest that this extends to domestic power in wartime too.

Being Americans, we tend to cloak such political struggles with claims of pre-existing Constitutional and legal sanction, but it is really hardball politics. Short form of this:

"It's about power, not the Constitution."
12.21.2005 12:18am
Medis:
Jack John,

You seem fixated on the term "canon of construction". But again, the important point is just that there was no equivalent to 18 USC 2511 involved in Hamdi.
12.21.2005 12:42am
Justin (mail):
I guess those of us who believe that John Yoo should be tried for war crimes and jailed aren't really part of the mainstream of this discussion if we're suppoesd to go by his work, which seems to completely ignore the text, the intent, and the structure of the constitution at every term so that a document designed to never have a king again gives us a dictator instead. ::sigh::
12.21.2005 12:56am
Tom Holsinger (mail):
Aaron,

Presidents have been charged with keeping the peace at home, and directing the conduct of military powers abroad, for several hundred years now. Your pronouncement that they can't do this without Congressional approval won't change several hundred years of history or the Constitution.

Furthermore the Supreme Court has repeatedly held that Presidential use of war powers at home as well as abroad shall receive a degree of judicial deference. If you disagree with that too, I suggest you take it up with Chief Justice Roberts.

There is certainly room for debate as to what additional domestic national security powers a President should have during a military conflict:

(a) inherently under the Constitution (i.e., cannnot be abrogated by Congress aka the Supremes say the President can do it despite a Congressional challenge short of impeachment, or the President up and defies both Congress and the Supremes, then dares Congress to impeach him for it and they don't because he has The People on his side), and

(b) inherently by Congressional authorization of the conflict (or perhaps really "recognition" that a conflict exists) - inherently here means that which the Supreme Court finds Congress "intended" the President have in the face of a legal challenge by a body other than Congress, and

(c) by express Congressional authorization, i.e., the many additional statutory powers given a President when Congress makes a formal, full-bore, Declaration Of War.
12.21.2005 12:57am
Tom Holsinger (mail):
hmmm, change (b) to:

(b) impliedly (not inherently) by Congressional authorization of the conflict (or perhaps really "recognition" that a conflict exists) - impliedly here means that which the Supreme Court finds Congress "intended" the President have in the face of a legal challenge by a body other than Congress, and
12.21.2005 1:00am
mls (mail):
Tom, you say that international calls originating in the U.S. "WILL be monitored by the National Security Agency, most likely from an overseas listening post, and that has been quite legal for a long time."

Legal in what sense? Is there statutory authority that allows federal monitoring of my mom's every-Sunday calls to her father in France? It would be really helpful if you could cite to the statutes, or at least point the way . . . . And is there case law that says those statutes do not contravene the 4th Amendment?

Or are these "monitorings" legal in the sense that since there is no confidential communication revealed there is no expectation of privacy? Kind of like the distinction between a pen register read-out and a wiretap transcript?

But at some point some combination of sounds will be "heard"/understood to require closer attention, and someone will listen to the conversation -- a violation of a reasonable expectation of privacy, yes? Or do we no longer have a reasonable expectation of privacy in the content of international calls? And why is the crossing of international boundaries what removes the expectation of privacy? Why would it be any different in all-domestic calls?

Admittedly, Scalia noted in Kyllo that if certain technology becomes in frequent use by the public (when Wal-Mart starts selling thermal imaging devices, for instance), the expectation of privacy calculus changes. But he didn't buy that the frequency of use by the government would change expectations of privacy. So whatever super-duper technology NSA has been/is using can't change the calculus, either -- right? Unless they're using the same spyware Yahoo! does. . . .

I'd think we'd like to figure out the legality of this in peacetime, before we can even weigh those privacy interests against the government's interests in "w"artime (that's war with a lower case "w", in light of the discussion of whether we are at War or only at war! Boy, "No More W" is taking on a whole new meaning!).
12.21.2005 1:06am
AK_Dude (mail) (www):

I would rather have international calls monitored, instead of another 3000 dead.


Marvin,

I want to agree with you--I really do--but I can't. 9/11 was a horrific event, but that doesn't give the President carte blanche to do whatever he wishes.

What about the ~2100 dead in Iraq trying to a) protect our Constitution and b) provide the opportunity for the same liberties in the Middle East...or the soldiers fallen in Afghanistan after 9/11?

Sorry--erosion of due process of law and jeopardizing the balance of power set in place by the Constitution *cannot* be ignored at the President's whim, no matter how plausible the reason for the executive order.
12.21.2005 1:18am
ficus:
TS, you talk about a declartion of war, but such a thing would not have been appropriate, would it?

The deadliest war we have fought was the Civil War, and there was no declaration of war, because it would not have made sense: the United States did not recognize the Confederacy as a state. Yet a great deal of what Lincoln did, including the Emancipation Proclamation, he based on his power as president in time of war. Even the people who say that he exceeded his power do not say that he was wrong about being at war. The lack of a declaration was irrelevant.

How would the AUMF have been couched, if one had wanted to make it a declaration of war? Against whom? Would it make sense, any more than a declaration against the Confederacy would have made sense? How can a "state of war" (in international law) exist between us and a rag-tag, amorphous network of terrorists? We don't recognize them as a state; no one does.

IANAL, so help me here: can a declaration of war have an effect, or change anything, in the international arena, if it is made against a non-state? Has any such thing ever been heard of?
12.21.2005 1:19am
Robert Romano (www):

Was it a rule for the government and regulation of the armed forces? No.

Of course it is. It's a rule about the when it is proper or improper to deploy them.


Well, that is a stretch! That clause is for the structure of the military, its hierarchy, rules for promotion, and also the military justice system. Nice try, though. Besides, that clause clearly applies to the regulation of the military, not the regulation of the Commander-in-Chief.


Resolutions under The War Powers Act are "specific statutory authorizations." They are not, therefore, Declarations of War.


That's under the War Powers Resolution, not the Constitution. My question to you was under what section of the Constitution may Congress pass an AUMF. You already wrote it was the government and regulation of the armed forces clause. Congress' distinction between statutory authorizations and declarations of war in the War Powers Resolution is not based on the idea that statutory authorizations derive their authority from the government and regulation of the armed forces clause of the Constitution, it is based on the types of war powers which there are, and the different circumstances under which hostilities could commence, and its purpose is clearly defined:


SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations.


No where in the resolution is the government and regulation of the armed forces clause cited. Find me one source or case or anything where that is indicated. To me, it's fallacious. And the resolution also clearly claims that it does nothing to alter the constitutional authorities of Congress or the President:


Sec. 8 (d) Nothing in this joint resolution--
(1) is intended to alter the constitutional authority of the Congress or of the President, or the provision of existing treaties...


Now, that doesn't make it so, but I digress.

Again, on this count, the clause you cited regulates the armed forces, not the Commander-in-Chief. The AUMF applied to the President, not to the government or regulation of the armed forces, and therefore any resolution authorizing the President to use military force cannot derive from the clause you cited. If Congress does not derive its power to AUMF from the power to declare war, then it has no power to do so. None of the other clauses apply.


Resolutions under The War Powers Act are "specific statutory authorizations." They are not, therefore, Declarations of War. Now you can argue that this is all unconstitutional tosh and The War Powers Act is invalid but you can't argue that Congress thinks it's Declaring War when it passes resolutions under The War Powers Act.


I wrote nothing about Congressional intent to declare war pursuant to its constitutional powers. I wrote about where Congress derives its authority to pass an AUMF, and my contention is that it is derived from its power to declare war, and that it thus results in a state of war. The effect is the same.
12.21.2005 1:41am
Robert Romano (www):
The clause in the Constitution I refer to, and which is being claimed gives Congress the power to pass an AUMF is from Article I, Section 8:


The Congress shall have power, ... To make rules for the government and regulation of the land and naval forces:


This is really fallacy, though.
12.21.2005 1:50am
Tom Holsinger (mail):
mls,

I haven't paid attention to the statutes involved. This has been going on for a long time. The technology was developed during (I think) the Johnson or Ford administrations, and the law was enacted, I believe, during the Carter administration. The Drudge Report has, at the momement, links to Executive Orders by President Carter in 1979, and President Clinton in 1995, authorizing the Attorney General to "to approve electronic surveillance to acquire foreign intelligence information without a court order". Here are the links:

1979 Carter: http://www.fas.org/irp/offdocs/eo12139.htm

1995 Clinton: http://www.fas.org/irp/offdocs/eo/eo-12949.htm

Both refer to "sections 302 and 303 of the Foreign Intelligence Surveillance Act of 1978 ("Act") (50 U.S.C. 1801,et seq.)", so it is probably that statute which authorizes monitoring &surveillance of all electronic communications to and from foreign countries.

Here is the link to the same Drudge special report which has the two Executive Order links above:

http://www.drudgereport.com/flash8.htm

This special report also says:

"WASH POST, July 15, 1994: [link is really to Byron York's quote in National Review from the Wash.Post 07/15/94 issue at page A-19) Extend not only to searches of the homes of U.S. citizens but also -- in the delicate words of a Justice Department official -- to "places where you wouldn't find or would be unlikely to find information involving a U.S. citizen... would allow the government to use classified electronic surveillance techniques, such as infrared sensors to observe people inside their homes, without a court order."

Deputy Attorney General Jamie S. Gorelick, the Clinton administration believes the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes."

Secret searches and wiretaps of Aldrich Ames's office and home in June and October 1993, both without a federal warrant."


I could not agree with you more that the really scary part of all this is that the rapidly improving commercial search engine technology is making hash of traditional expectations of privacy, privacy laws and the implied Constitutional rights to privacy. We really should consider what kind of privacy rights we can reasonably expect to enforce legally in peacetime, given these technological trends, before we start in on how that should change in wartime.
12.21.2005 1:52am
mls (mail):
Original TS writes: ". . . while I haven't seen Yoo's book, I'd be willing to buy the analysis -- which is also being advanced by mls -- that these resolutions have no legal impact. . . ."

Yowzaaa! I never expected to see my timid nom de plume together with John Yoo's. Not having read his book, I don't know that we do agree [I haven't agreed with much else that he's written, so I'm not holding out high hopes!] -- I did "advance" the argument that the use of force resolution isn't necessarily a declaration of war. And I have to admit that I think a president can constitutionally commit our armed forces to combat without a declaration of war from congress -- and that was what the use of force resolution was about, political CYA for a commitment of troops, not a declaration of war.

And I also think there are "wars" and there are "Wars," and what kind of war we're talking about does make a difference in whether the president can spy domestically without restraint by FISA, or can engage in other restraints on civil liberties of American citizens wherever found, or restraints on civil liberties in the U.S. I'd be lots more comfortable if we had a formal declaration of war before we did ANY domestic spying without judicial oversight. But I don't think a formal declaration of war would necessarily justify the NSA spying we've recently learned about. We just put the fact that we are actually AT WAR into the basic cost/benefit balancing the court is accustomed to doing under the 4th amendment. (That's right, I'm not accepting the argument that Article II CinC powers allows effective repeal of the 4th amendment -- it's just that the balance is struck differently in real-war time).

Everyone agrees that the war on terror (or WAR on TERROR if you prefer) is a new creature. It's not quite World War II (committing all-out use of U.S. troops against aggressor nations), nor is it quite War on Drugs (allowing some U.S. use of force against criminals [yes, we have actually committed U.S. Armed Forces to the war on drugs). But we need to stop pretending that the war on terror is either WW III or the War on Christmas (meaningless rhetoric), and nothing in between. Those comfortable with what the president is doing in the war on terror tend to see it as WW III. The president himself seems to think it is WW III. There needs to be some recognition there that it is a different kind of war. I'm not arguing that the war on terror is only a rhetorical flourish, but it's going to have to look a lot more like WW III than it does now before we can talk about suspending civil liberties . . .

OK, so for those of you who need to know where someone is coming from before you can assess their technical (some might call mine hypertechnical! or given my insistence that technology doesn't matter, I guess we'd have to say hypotechnical) arguments, here you go. Have at it.
12.21.2005 1:55am
mls (mail):
Tom, Thanks for the sources, I'll check them out (tomorrow!). But to the extent the monitoring is allowed for foreign intelligence collection, and FISA is mentioned in there, I don't see how it grants statutory authority to listen to my mom ask Papy to send more pate, or Coca-Cola discuss whether ingredient X is palatable to Norwegians, or Wal-Mart talking price-fixing with Carrefours (often called the French Wal-Mart). None of these are suspected agents of foreign powers, and all are U.S. persons under the act. So you can't "listen in" to all of it and then winnow out what applies to foreign intelligence collection, can you?

And whatever one could say about the legality in 1994 of "infrared sensors to observe people inside their homes, without a court order," is obviated by Kyllo.

Unless we go back to that national security warrant exception. We haven't discussed that in a while!
12.21.2005 2:09am
AST (mail):
Why is it considered domestic surveillance if you're checking to see what a particular phone number in the U.S. is doing on a computer seized from Al Qaeda members overseas? If the law says that's illegal, the law is an ass.

Suppose we had recovered documents during WWII which listed NAZI contacts in the U.S.? Would we be prohibited from intercepting communications between Hitler's government with these contacts? I'm sorry, but I don't see that as "domestic."

Considering that not even this operation was kept secret, what makes us think going through a FISA court would be any more secure?

I keep wondering who has standing to complain about this operation. If your communications with Al Qaeda have been monitored, and your plot to blow up a building or an airliner was thwarted, go ahead and file suit. Otherwise, how have your rights been violated here?

Sometimes I think we lawyers overthink things like this. We get buffaloed by that phrase "spying on American citizens." But when you think about it, you have to wonder where that gets you. Hoover had files on John Dilinger, too. The outrageoous part was when he kept them on Senators, candidates, media people, celebtrities, etc. with no probable cause or even reasonable suspicion that they had committed crimes or conspired to do so.

During the McCarthy era, Hoover's reign at the FBI and Watergate, government was blamed for paranoia about people who were political enemies. So was Bill Clinton. But I would submit that the paranoia today goes the other way. People who aren't being harmed in any way are interfering with the government doing what we expect it to do.
12.21.2005 3:05am
Josh Valiant (mail) (www):
In reading the FISA law, I noted this segment:

In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest.

Just to make sure that I'm reading this correctly, does this mean any emergency wiretap filed with the court can only be done for 72 hours at the most? I noticed that this doesn't necessarily preclude the wiretap from being ongoing, only that it can't be used as evidence in court. I think. Using a hypothetical, the wiretap can determine where an attack will be taking place and you can thus take measures to prevent it, but then you can't use it to charge the party, which was the subject of such surveillance of any crimes discovered as a result of the wiretap.
12.21.2005 9:54am
Medis:
Josh,

The key condition is "in the absence of a judicial order. . . ." If you get a FISA warrant within 72 hours, you can continue to conduct the surveillance.

Robert,

Why wouldn't the Commander in Chief of the armed forces be subject to the rules applicable to the armed forces? It is perhaps worth quoting the relevant clause: "The President shall be commander in chief of the Army and Navy of the United States." This language doesn't place the President outside of the armed forces--just the opposite, it places him inside the command hierarchy of the armed forces, albeit at the top.

I might note, incidentally, that General Washington, and later President Washington, specifically asked the Continental Congress, and later the First Congress, for Articles of War (the predecessor to the UCMJ). To my knowledge, he never asserted that when acting as Commander in Chief, he would not be subject to the Articles of War.

That said, I agree with you that something like an Act authorizing the use of military force in a particular circumstance isn't plausibly just a use of Congress's power to makes rules for the armed forces, including the Commander in Chief. Rather, I think it is a more comprehensive use of the Necessary and Proper Clause--such an Act is a law executing the power of the United States government itself, including both the relevant powers of Congress and the relevant powers of the President, to use military force.
12.21.2005 10:55am
Mark Buehner (mail) (www):
Lets have a look at what the author of the AUMF has to say on whether it was a declaration of war, Democrat Joe Biden:


M: (Inaudible) Talbot(?). Senator, thank you for this broad gauged approach to the problems we face. My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom? (Scattered Laughter)

JB: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what ... against whom we were moving, and what authority was granted to the President.
12.21.2005 11:40am
Provincial Congress (mail) (www):
Wince,

The early days of a war typically involve a lot of movement and uncertainty, especially by foreigners and agents of foreign powers. That was the case after 9/11, when thousands of suspects were rounded up. In wars against conventional countries, this is even more the case, because embassies and consulates and their staffs need to be evacuated, and normal relations between the countries terminated abruptly. Acts of sabotage during large-scale mobilizations can be particularly damaging to the national cause. You can read a compelling history of the early days of a war in Tuchman's The Guns of August.
12.21.2005 11:51am
Medis:
Provincial Congress,

And I might note that Wince's burden on this issue is quite high. The plain language of the relevant provision states that the window exists for 15 days from the declaration of war. Unless this is an "absurd" construction of the statute, the plain language governs. And any plausible sense in which the period immediately after a declaration might be different renders this construction not absurd.
12.21.2005 12:05pm
Wince and Nod (mail) (www):
Medis and Provincial Congress,

Actually, I don't think my burden is too high, since both of you have made sensible arguments which meet it. Congress can give itself fifteen days to revisit the issue, and that could be a reasonable period of tiem to make sure all the "diplomats" had actually left. The nuclear comment was not plausible.

Yours,
Wince
12.21.2005 12:52pm
The Original TS (mail):
mls,

We're largely in agreement here. What I find most disturbing about this is not so much that they're monitoring traffic. It's that they're unwilling to comply with even the absurdly loose standards of FISA. This administration has decided to make a philosophical point of refusing even the most cursory judicial oversight. "We know best. How dare you question us!" is not my all-time favorite presidential motto. I'd really like to have faith in the great and good of the executive branch. Unfortunately, I've got this picture of G. Gordon Liddy stuck in my head.

Checks and balances are as American as apple pie. Being able to justify yourself to a neutral magistrate not only helps prevent you from trampling on Constitutional rights, it makes you do a better job all around. Knowing that someone is looking over your shoulder keeps you from getting sloppy and constantly forces you to separate your subjective wishes from objective fact. It's a good thing for the investigator, it's a good thing for the investigated and it's the single best way to ensure that an elephantine bureaucracy does not trample us all in a vigorous pursuit of narrow goals.
12.21.2005 1:10pm
The Original TS (mail):
Robert,

You seemto be mixing two different questions here. The first question is "Under what Constitutional provisions could the Congress authorize or prohibit the use of military force?" The second is, "What provisions does the War Powers Act specifically rely on?"

Well, that is a stretch! That clause is for the structure of the military, its hierarchy, rules for promotion, and also the military justice system. Nice try, though. Besides, that clause clearly applies to the regulation of the military, not the regulation of the Commander-in-Chief.

Come now. Congress can pass laws ordaining what is legal and illegal for the military to do. The Commander-in-Chief can only give legal orders. For example, Congress could amend the UCMJ to make it a felony for any member of the military to "threaten, attack, injure or kill any member of the armed forces of any nation unless the President is authorized to use force against that nation under the terms of The War Powers Act."

The point here is that, as someone has pointed out above, the President as Commander-in-Chief can make any lawful order he wishes. Congress, however, can make laws defining what constitutes a lawful order. The President cannot, for example, lawfully order the Second Airborne to loot, pillage, rape and torture just because he's the Commander-in-Chief. That's clearly an unlawful order and, if the President gave such an order, every single soldier in the chain of command from the Chairman of the Joint Chiefs to the Private in the field would be duty bound to disobey it.

As for the second question, I've already pointed out that The War Powers Act specifically derives its authority from the necessary and proper clause, your assertion that it is a "fallacy" notwithstanding. But if the Supreme Court didn't buy that but found some other clause supported the exercise of Congressional authority, it would still uphold The War Powers Act.

I wrote nothing about Congressional intent to declare war pursuant to its constitutional powers. I wrote about where Congress derives its authority to pass an AUMF, and my contention is that it is derived from its power to declare war, and that it thus results in a state of war. The effect is the same.

I guess we'll have to call this the "fine print" argument. What you're suggesting is that Congress didn't actually intend to Declare War but did so accidentally. Thereby accidentally triggering all sorts of sweeping Executive powers and accidentally giving the President authority to abrogate the Constitution. Color me sceptical.

It is certainly Constitutionally possible that a Congressional resolution authorizing the use of force under The War Powers Act is without legal affect and neither enhances nor diminishes the President's inherent authority to deploy the armed forces. It is not Constitutionally possible that Congress unintentionally Declared War when passing a resolution under The War Powers Act.
12.21.2005 1:45pm
Charlie (Colorado) (mail):
TS, two of us now have asked how you can hold that there has been no declaration of war in the face of the Congressional author of the AUMF resolutions' flat assertion that it was just that, in fact and under the Constitution.

I'm really very curious about this.
12.21.2005 2:01pm
The Original TS (mail):
Charlie,

With all due respect to the Senator, he's mistaken. It is, after all, assertion and not analysis. As I've pointed out, The War Powers Act itself draws a distinction between a Declaration of War and a Congressional authorization. Even the Hamdi decision while talking about "war" (small w) ties the powers granted to the President to the specific language of the Congresional resolution.

By the way, if you were to ask Senator Biden if he intended the resolution authorizing the use of force to give the President authority to suspend the Fourth Amendment, I'll bet he'd say, "Not a chance!"
12.21.2005 2:38pm
Jack John (mail):
this is a claim (that the 2001 AMUF repealed prior laws as the President sees fit) without a clear limiting principle.

Ah, but there is a clear limiting principle. It's called the Commander-in-Chief clause. It's right there in the text of the Constitution.
12.21.2005 2:48pm
Jack John (mail):

Jack John,

You seem fixated on the term "canon of construction". But again, the important point is just that there was no equivalent to 18 USC 2511 involved in Hamdi.


Only if you interpret Hamdi narrowly, and only if you interpret 2511 not to be functionally equivalent in regard to AUMF. Both of those steps necessarily require reliance on a particular canon of construction. Back to my original point, no one has to use the canon of construction you prefer. Thus, you have no legal basis for the argument; it's just your gut preference. No offense intended, but no one cares how you would prefer to decide the case were you the judge; we're discussing the contours of the legal issue.
12.21.2005 2:52pm
Robert Romano (www):

As for the second question, I've already pointed out that The War Powers Act specifically derives its authority from the necessary and proper clause, your assertion that it is a "fallacy" notwithstanding.


I never wrote that the War Powers Resolution does not derive its authority from the necessary and proper clause. Nor did I call the resolution's citing the necessary and proper clause a fallacy. I agree that the resolution cites it authority quite specifically from the necessary and proper clause.

The necessary and proper clause is for bringing into execution the foregoing powers specifically enumerated in the Constitution. So, if Congress' ability to pass an AUMF does not derive its authority from the foregoing power to declare war, then it has no authority to pass an AUMF.

Unless there is another foregoing power enumerated which we have not cited. The necessary and proper clause does not enumerate powers unto itself. When citing the necessary and proper clause in law, it has to be based on a foregoing power.

I barely addressed my opinion of the War Powers Resolution, except to question whether it significantly altered the powers already enumerated in the Constitution. That's an entirely separate discussion.

To those topics germane to the question, my view is that an AUMF is not a type of law which has anything to do the government and regulation of the armed forces, rather it is a type of law which is necessary and proper to bring into execution the power to declare war.
12.21.2005 2:56pm
Tom Holsinger (mail):
I agree that an AUMF is a legal nullity concerning presidential use of military force against armed enemies. No President needs Congressional authorization for that - his power there is inherent in the Constitution and cannot be degraded by the legislative or judicial branches.

AUMF's in this context are merely Congressional attempts to pretend that its War Powers Act still has some meaning, which it hasn't since President Clinton ignored it during his intervention in Kosovo.

I contend that an AUMF does have real legal meaning, however, in a domestic context. This is probably unintentional.

It is absolutely clear that an AUMF does not give any President full war powers. He already has full war powers concerning his actions against armed enemies, but he does not have them domestically. Congress has over the years enacted many statutes which by their express terms take effect only upon a formal Congressional declaration of war, which hasn't happened since December 1941.

No President since 1945 has contended that an AUMF gives him those statutory powers, i.e., there has been a de facto admission that AUMF's don't do that.

The Supreme Court has repeatedly held that Presidential actions in use of his war powers are entitled to judicial deference. There have been disputes both as to what judicial deference means in specific cases, and whether a given action uses a President's war powers (such as Truman's attempt to seize &operate steel plants during the Korean War).

It is my opinion that an AUMF has meaning, if has any at all, in the degree of judicial deference given to Presidential use of war powers domestically. An AUMF is at least Congressional recognition that a President is properly using his war powers such that only a formal Congressional legal challenge (i.e., by both houses of Congress) to such use in a particular instance would not be entitled to a heightened degree of judicial deference. Legal challenges by individuals, groups, or just one house of Congress without the other, would merit a heightened degree of judicial deference to the Executive.

And Congress may by statute provide a President with additional domestic authority subject to its approval, during any given conflict, by resolution aka AUMF.

As I see it, we already have several distinct degrees of Presidential war powers.

a) Inherent in his Constitutional power as commander-in-chief. This may not be reduced by action of the legislative or judicial branches. Such inherent Constitutional power seems to be absolute in use of military force against armed enemies (if massive use of nuclear weapons isn't absolute, nothing is), excepting only funding. The Courts give some judicial deference to Presidential use of his war powers in domestic matters.

b) Implied by a Congressional authorization to use military force (AUMF). This merits considerable, as opposed to some, judicial defererence to Presidential use of war powers in domestic matters.

c) Express by a Congressional declaration of war (all domestic powers granted by statute to a President conditional upon a DOW).

d) Express by individual statutes which a given Congressional resolution aka AUMF grants a President for a given period, or until Congress by resolution declares the conflict to be terminated.

There haven't been any instances of (d) yet. I'm saying that Congress can do this.

Congress can't take away a President's inherent constitutional war powers, but it can enhance his inherent war powers in any fashion it chooses by resolution and statute for each individual conflict.

And a President's inherent constitutional war powers are much less domestically than against armed enemies.
12.21.2005 4:41pm
Charlie (Colorado) (mail):
TS, if I'm following this, you're sayiong that in the absence of any judicial guidance to the contrary (as I'm following this dicussion, all of the case law that's been mentioned seems to be on the side of the AUMF having been a declaration of war), in the absence of any specific language in the Constitution as to what a "declaration of war" has to say, and in the face of his specific statement of intent, the author of the resolution is mistaken in what he believes the resolution to have said.


Right.
12.21.2005 5:03pm
Robert Romano (www):

No President since 1945 has contended that an AUMF gives him those statutory powers, i.e., there has been a de facto admission that AUMF's don't do that.


I'm not certain that is true, at least in the sense that presidents haven't considered such authorizations to be declarations of war. President Johnson appears to have thought that the Gulf of Tonkin Resolution was indeed a declaration of war:


In 1964, when President Lyndon Johnson asked Congress to enact the Gulf of Tonkin Resolution - permitting him to use U.S. armed forces in retaliation for North Vietnam's alleged assaults on U.S. ships - only two senators dissented. Congress adopted the Gulf of Tonkin Resolution, which Johnson considered a declaration of war.
(Patrick, 550)

Another source which says the same thing:


...he got Congress to pass the Gulf of Tonkin Resolution, which he cited as equivalent to a declaration of war.


So, I would just take exception to that point. This appears to be an ongoing controversy, predating the enactment of the War Powers Resolution.

Now, I don't know that Johnson invoked the statutes applicable under a formal declaration, so I cannot address that. But it does appear that he considered the Gulf of Tonkin Resoluton to be a declaration of war.

Bibliography:
Patrick, John J. Pious, Richard M. Ritchie, Donald A. The Oxford Essential Guide to the U.S. Government. Berkley Books. New York. 2000.
12.21.2005 5:26pm
Tom Holsinger (mail):
Robert,

I make a distinction between (a) a President's war powers in using military force against armed enemies and (b), a President's war powers in using non-military, non-violent, means domestically against persons other than armed enemies. President Truman used his inherent, constitutional, war powers to conduct military operations in Korea, but his attempt to use his purported war powers domestically to seize steel mills was rejected by the Supreme Court as not being within those inherent war powers.

Had Congress made a formal declaration of war on North Korea, Truman would have had express legislative authority to seize the steel mills. But there was no formal declaration of war.

An AUMF, by itself, does not give a President any additional express powers in domestic matters. No President has contended it does, though there are dozens of statutory domestic powers given a President which become effective only upon a declaration of war by Congress.
12.21.2005 5:44pm
Robert Romano (www):

Had Congress made a formal declaration of war on North Korea, Truman would have had express legislative authority to seize the steel mills. But there was no formal declaration of war.


But that was not the decision of the court. The controversy we are discussing was not addressed at all by the court. It had nothing to do with there being a formal declaration of war. It had to do with the President's powers in a time of war. The ruling was that even with the state of national emergency, the President did not have the power to seize private property:


The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.


The ruling was that private property cannot be seized even in a time of war, not that the President could have done so, only if there was a formal declaration of war.

Unless you can cite the portion of the decision wherein the issue was a formal declaration of war vs. the UN authorization, the distinction between the two, and why one results in a state of war, and the other does not. I can't find anything in the decision that states or implies that if only for a formal declaration, the seizures would have been constitution.
12.21.2005 6:23pm
Tom Holsinger (mail):
Robert,

The difference is statutory, not Constitutional. A President does not have the inherent Constitutional war power to seize private property absent military exigency, and a declaration of war by Congress does not by itself give him such additional Constitutional authority. But Congress can permit it by statute, upon payment of just compensation, and such statutes are only effective after Congress has issued a formal declaration of war.

My recollection is that the steel decision did not mention those statutes because none applied - no war had been declared, nor even an AUMF.

This issue came up twice in World War Two. The first instance concerned coal mines where strikes were on-going. President Franklin Roosevelt was urged to seize some, and it was accepted that he had the authority to do so (AG opinion, private advice from Justice Frankfurter, etc.). The Army really, really, wanted to seize those mines, but FDR vetoed it as doing so would have been a domestic political disaster.

This issue also came up concerning the Ford Motor Company, both as to the entire company because of Henry Ford's anti-labor looniness in general (Ford would have been put under a trusteeship, and its forced sale at auction was discussed), and when one of its major aircraft plants had its productivity drastically reduced after Henry Ford ordered a layout change to avoid the plant crossing into a county with a pro-labor government.

The Ford Motor Company escaped a government takeover because Henry Ford's female relatives, holding a majority of its shares, finally told him to take a hike and hired his grandson as President.
12.21.2005 7:13pm
Robert Romano (www):
Thanks for your comments, Tom. I see what you are saying about the lack of statutory authorization to seize the steel mills. And I agree that if Congress had authorized the President to take the mills, it would have been constitutional, and I'd add with or without a declaration of war. The reason I believe that is this portion of the decision's summary:


2.(f) The power here sought to be exercised is the lawmaking power, which the Constitution vests in the Congress alone, in both good and bad times.


And from the majority opinion itself:


The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times.


My point in citing these is that the court was making no distinction between the President's powers to make law in a time of war or peace. Also, the court was acknowledging that while these were bad times, the Constitution had no less weight, and the President could only act in a manner prescribed by the law.

That means that even with a formal declaration of war or an AUMF, the President still would not have been authorized to seize the steel mills, unless that was expressly enumerated in the authorization. The power to make war of the President does not extend to seizures of private property. The court, however, was not ruling that we were not at that time at a state of war.

The court was drawing a line in the sand pursuant to the idea that we were.

However that line is far afield from the question of the President's authorization of the NSA's program. Pursuant to the AUMF of September 18th, 2001, the President's authorization of the program to gather signals intelligence through the program is directly in line with his role as Commander-in-Chief.

The program is akin to the use of radar to identify targets.

It is, to quote the AUMF, "necessary and appropriate" to use the program's signal intelligence to intercept international communications of al Qaeda terrorists, leaders, and contacts both here and abroad. It's a political question with which the President has discretion.

I doubt that the question of the program's constitutionality will be decided either way on the basis that we are not at a state of war with transnational terrorism. Rather, it will be decided on the basis that we are.

Though I also don't disagree with you on any of the points you raised in the last post. In particular, I agree with this:


A President does not have the inherent Constitutional war power to seize private property absent military exigency, and a declaration of war by Congress does not by itself give him such additional Constitutional authority.


I don't see anything, though, in the Youngstown decision to suggest that we were not at war. The court appeared to be implying that we were. As we are today.
12.21.2005 11:36pm
Medis:
Robert,

You wrote, "The necessary and proper clause is for bringing into execution the foregoing powers specifically enumerated in the Constitution. So, if Congress' ability to pass an AUMF does not derive its authority from the foregoing power to declare war, then it has no authority to pass an AUMF."

I just wanted to note this is not necessarily correct. The full NPC states, "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

So, Congress could also be deriving its authorization to pass the AUMF from any of the other powers vested in the government of the United States, not just its own enumerated powers. And I personally think the obvious interpretation of an AUMF is that it carries into execution a large cross-section of the powers of the United States, including but not limited to all of the various Congressional powers with respect to the armed forces.
12.22.2005 12:10am
mls (mail):
Query: Could Bush authorize drilling in ANWR as CinC? A bit off topic of NSA spying, but still within the area of the CinC's power in war-time or War-time. Ted Stevens added ANWR drilling to the DOD spending bill on the theory that DOD used lots of gas (!). Could a CinC make an argument that either for war-fighting reasons or strategic reasons of reliance on foreign oil?

Distinguishable from Youngstown, since not private property, right? But will of congress in refusing to authorize the drilling pretty clear, yes? And it (refusal to allow drilling) predates the use of force resolution, so it couldn't possibly be used as justification, right?

I'm just trying to figure what limits, if any, the CinC absolutists would find . . . .
12.22.2005 12:22am
Robert Romano (www):

So, Congress could also be deriving its authorization to pass the AUMF from any of the other powers vested in the government of the United States, not just its own enumerated powers.


Fair enough, in which case you would be referring to the war-making powers of the President. That would be plausible, but then that would when such a statutory authorization is used, that it is not necessary in order for the President to act. Therefore, the AUMF was unnecessary?

How can that be, if one is citing the necessary and proper clause?


And I personally think the obvious interpretation of an AUMF is that it carries into execution a large cross-section of the powers of the United States, including but not limited to all of the various Congressional powers with respect to the armed forces.


But besides the power to declare war, under what power can the Congress authorize the use of military force? If you're writing about the President's powers as Commander-in-Chief, the AUMF is not a law which describes the chain of command or anything like that. The AUMF is not necessary to make the President the Commander-in-Chief.

Also, on your previous point, which I had failed to respond to:


Why wouldn't the Commander in Chief of the armed forces be subject to the rules applicable to the armed forces?


You make an interesting point here, in a context I hadn't thought of. But the reason I wrote that, was because the specific clause regulates the land and naval forces specifically. So, by that, I thought it meant soldiers and sailors and Marines. We can add to that airmen by implication, since flight wasn't envisioned by the Founders. But the President, generally speaking, is none of the above.

So I still think that clause doesn't apply to the President per se, because it does not specifically state that. The President is the Commander-in-Chief of the armed forces in his civilian capacity. The clause does limit the President's ability to organize the military as he would see fit, but not his ability to order the military so organized to take necessary and appropriate measures in the war effort, consistent with the rules of war.
12.22.2005 1:07am
West (mail):
I want to address a specific point:

The FISA electronic surveillance definition, part 1:

" Specifically, 50 U.S.C. 1809 prohibits "electronic surveillance" except as authorized by statutory law: "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute." "Electronic surveillance" is defined in 50 U.S.C. 1801(f) to mean, in relevant part:

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;"

The surveillance being carried out here is almost certainly a screening methodology, looking for keywords in conversations &other communications - meaning that at the time of interception and analysis, no one specific person is targeted - the communication itself is being targeted, with the person(s) who originated/received the transmission only being identified and specifically targeted at some later time using other methodologies such as old fashioned wiretapping or cell phone number tracing - perhaps even with warrants duly aquired.

So if this is how the technology id being aquired - a la 'Echelon' style, then part 1 does not apply.

I think. Not a lawyer.
12.22.2005 1:08am
Scott McGee (mail):
Uh, just one comment re: Justin's post. It was Andrew JOHNSON who was impeached, not Old Hickory, Andrew Jackson.
12.22.2005 9:23am
Medis:
Robert,

On the Necessary and Proper Clause--it covers all laws necessary and proper for "carrying into execution" any of the powers granted in the Constitution. So, suppose we are talking about the Commander in Chief clause. The President's authority to be Commander in Chief is already granted in the Constitution, and an AUMF under the NPC clause does not create that authority (although interestingly, if the CiC clause did not exist, I think the Congress could probably pass a law to that effect under the NPC--but I digress). However, what it does do is "carry into execution" the President's CiC authority by giving the military a particular task to accomplish.

For the same reason, it also "carries into execution" all the various war powers of Congress--defining offenses against the laws of nations, rules for governing and regulating the armed forces, raising and supporting the military, and so on. In short, the Constitution creates a military force for the government of the United States--one governed by the laws of Congress and commanded by the President--and an AUMF carries the military power of the United States government into execution by setting this military to a task.

Incidentally, although I do not think it is strictly necessary to do this, if one had to identify the key clause which gave Congress the "authority" to pass the 2001 AUMF, I would actually pick out "To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." By attacking us on 9/11, Al Qaeda certainly committed an offense against the law of nations (although Al Qaeda is not a nation per se, I think that phrase in a modern context covers all international law, including as applied to foreign groups). So, the 2001 AUMF almost literally defines that offense and authorizes the President to use the armed forces to punish it.

On the Commander in Chief--I don't think it matters that the President is not in a particular service. Congress could define a single officer who commanded all the armed forces, and who was subject to command only by the President. This officer might not be in any particular service, and he might even be called something very similar to commander in chief of the amred forces (how about "Executive Commander in Chief of the Armed Forces"?). But this officer would still be subject to the UCMJ, and I think the President when acting as the Commander in Chief is in an identical role. Again, the Commander in Chief clause places the President IN the military hierarchy, not outside it.

In any event, I don't think it matters--whether you want to call him a civilian or an officer, the President as Commander in Chief has no more authority as a military commander than any other military commander. And that means he simply cannot issue unlawful orders. I think you might agree with that proposition to the extent that you noted the President as Commander in Chief is bound to obey the "rules of war".

So, for example, I don't think the President could order the military to commit an offense against the laws of nations as defined by Congress, because that would be an unlawful order. Similarly, the President could not order someone in the military to commit an offense under the UCMJ (eg, rape, murder, or torture), because those would also be an unlawful order. Nor could he order someone in the military to punish someone else in the military in violation of the procedures in the UCMJ and the Manual for Courts-Martial. And so on.

And my basic point is just that FISA is no different than any of these other laws. It does not attempt to direct the operations of the NSA, but it does provide general rules for governing the operations of the NSA, and defines offenses when those rules are violated. And the President no more has the authority as Commander in Chief to order someone in the NSA to violate those rules and commit a crime under FISA than he has the authority to order someone in the armed forces to commit a crime under the UCMJ.

West,

I think the crucial part of your post is "perhaps even with warrants duly acquired." Based on the descriptions in the papers, and the lack of denials by the Administration, it seems like they may not have been acquiring warrants for things like roving wiretaps of known US persons once they were suspected of being agents or associates of Al Qaeda. That would be a straightforward case arising under 1801(f)(1), even if those US persons were communicating internationally.
12.22.2005 10:21am
factcheck:
I know I should probably let this go, but.....

To David Pittelli:
For you to suggest that the notion that Republicans have questioned the Democrats' patriotism during this "War on Terror" is false is, in my opinion, quite a disingenuous position to take. Maybe Republicans have been careful to rarely use that exact phrase (" [so and so] is unpatriotic") against Democrats, but they've STRONGLY implied as much 100's of times. You don't think they've used that tactic successfully? And let's not play semantic games here, because if you were to say that I had (for example) " a horrible looking nose, and buckteeth, and a ridiculous looking giant forehead, and bad hair, and unattractive eyes, and a very fat stomach, a bizarre looking limbs," and then I accused you of "calling me ugly," would you complain that you "never said such a thing" ??? Just because you never used the exact word "ugly" ?? I would hope not.
What is the definition of "unpatriotic?" It is "not loving or supporting your country." So if you suggest that someone gives "aid or comfort to the ENEMY" of your country, or that someone "emboldens" the enemy of your country, or that someone "doesn’t care about the security" of your country, or that a vote for someone is a vote for terrorism or a vote for your country’s ARCHENEMY, or that someone is part of a party that is the "surrender party", then guess what?? You are calling that someone, by definition, UNPATRIOTIC and traitorous. What could be more unpatriotic than "aiding and comforting" the ENEMY of your country. So either you agree with Republicans that Democrats are being unpatriotic in their actions and comments or you don’t. But don’t pretend that Republicans have not strongly implied that Dems are unpatriotic, because they have (and Dems have done the same back. But I think it is clear that Repubs felt more comfortable and confident in "going down that road," and that Dems were mostly just trying to respond in kind)

Here is just a smattering of examples of high ranking Republicans making such comments:
Tom Davis, R-Va., who leads the National Republican Congressional Committee, said that Senator Daschle's comments gave "aid and comfort to the enemy."

Appearing in the Rose Garden yesterday with Iraq's interim prime minister, Ayad Allawi, Bush said Kerry's statements about Iraq "can embolden an enemy."

Sen. Orrin G. Hatch (R-Utah), chairman of the Judiciary Committee, said terrorists "are going to throw everything they can between now and the election to try and elect Kerry." On Fox News, Hatch said Democrats are "consistently saying things that I think undermine our young men and women who are serving over there."

GOP Senate candidate John Thune of South Dakota said of his opponent, Senate Minority Leader Thomas A. Daschle: "His words embolden the enemy." Thune, on NBC's "Meet the Press," declined to disavow a statement by the Republican Party chairman in his state saying Daschle had brought "comfort to America's enemies."
Attorney General John D. Ashcroft said tactics used by critics of the USA Patriot Act "only aid terrorists" and "give ammunition to America's enemies." In 2002, Bush charged that opponents of his version of homeland security legislation are "not interested in the security of the American people." In 2003, Defense Secretary Donald H. Rumsfeld said that if terrorists think Bush's opponents might prevail, "they take heart in that, and that leads to more money going into these activities or that leads to more recruits or that leads to more encouragement."

This year, the accusations began at lower levels. In March, Rep. Tom Cole (R-Okla.) told a group of Republicans: "If George Bush loses the election, Osama bin Laden wins the election."
12.22.2005 12:40pm
unenumerated (mail) (www):
I disagree with Orin Kerr when he says "[the executive] complying with statutory rules after legislation had been enacted is a question of statutory law, not constitutional law." Article II commands the executive to "take care that the laws be faithfully executed." "[T]he laws" include statutes like FISA. If President Bush has not faithfully executed FISA he has committed an offense against the Constitution.

If per your hypo the Pentagon bought more pencils than was lawful under statute, that would be a de minimis (and thus not impeachable) Constitutional violation by the executive as well as a statutory violation.

Here's my own take on the warrantless spying issue.
12.22.2005 3:25pm
Rick Derrig (mail):
I found your analysis to be excellent and right on target. You did a great deal more research/analysis than I had time to do on my own, and I thank you for that depth of analysis. The review of the Truong case hs been misconstrued by some as support that Bush's action in side-stepping FISA court was legal, and your analysis of that review/decision agrees with mine in finding such representation as erroneous. Again, kudos and thank you!

Rick
12.22.2005 5:57pm
Beck:
"take care that the laws be faithfully executed." "[T]he laws" include statutes like FISA. If President Bush has not faithfully executed FISA he has committed an offense against the Constitution."

Being rather ignorant on the matter, how do we resolve your argument with what the FISA Court of Review held in 2002,

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

That is to say, FISA is not the only way by which foreign intelligence surveillance may be authorized?
12.22.2005 10:01pm
logicnazi (mail) (www):
Well if someone has already posted this I'm sorry but I was appalled to see how this post was misleadingly quoted in Krauthammer's washington post op-ed twisting your statement that it probably didn't violate the 4th ammendment to sound like you thought the whole thing was A ok.
12.23.2005 7:04am
Neal Lang (mail):
What is the definition of "unpatriotic?" It is "not loving or supporting your country." So if you suggest that someone gives "aid or comfort to the ENEMY" of your country, or that someone "emboldens" the enemy of your country, or that someone "doesn’t care about the security" of your country, or that a vote for someone is a vote for terrorism or a vote for your country’s ARCHENEMY, or that someone is part of a party that is the "surrender party", then guess what?? You are calling that someone, by definition, UNPATRIOTIC and traitorous. What could be more unpatriotic than "aiding and comforting" the ENEMY of your country. So either you agree with Republicans that Democrats are being unpatriotic in their actions and comments or you don’t. But don’t pretend that Republicans have not strongly implied that Dems are unpatriotic, because they have (and Dems have done the same back. But I think it is clear that Repubs felt more comfortable and confident in "going down that road," and that Dems were mostly just trying to respond in kind)

But what are you going to do if the "shoe fit". In the case of most Democrats they put partisan politics ahead of the obvious National Interest, which is of course the "Public Safety". You may not call that "unpatriotic", but I would. Unfortunately most Democrats don't think "words matter" - perhaps that is what explains Democrat Rep. Jim McDermott of Washington State, who, along with another senior Democrat, Rep. David Bonior (Mich.) journeyed to Baghdad in order to verbally (physically) support the tyrannt, Saddam Hussein, immediately before America's best went in harm's way to depose him. Of course, these behavior goes beyond "unpatriotic", as this type of "aid and comfort to the enemy" is truly treason.
12.23.2005 3:29pm
Neal Lang (mail):
In order to fully comprehend the Article II the extent of "war powers" of the President one might first look at the various oaths of offices to get an impression of how the Framers viewed the shift of powers once war has been declared.
Article II. Section 1.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: -- "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Only the President has such a specified Oath of Office including the Duty to "preserve, protect and defend the Constitution of the United States". Other officials, either State or Federal merely must swear to "support the Constitution", to wit:
Article VI.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The First Congress in 1789 established this simple for the Congress:
"I do solemnly swear (or affirm) that I will support the Constitution of the United States."

After the Civil War it was expanded to:
"I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."

Unlike the POTUS, apparently the Legistrative Branch was charged with "perserving" the Constitution, merely to "support and defend" it.

Other oaths are also interesting, for example:
Military Oaths
Enlisted:
"I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God." (Title 10, US Code; Act of 5 May 1960 replacing the wording first adopted in 1789, with amendment effective 5 October 1962).

Commissioned Officer:
"I, _____ (SSAN), having been appointed an officer in the Army of the United States, as indicated above in the grade of _____ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservations or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God." (DA Form 71, 1 August 1959, for officers.)

The "rank and file" military are also not charged with "perserving" the Constitution they are to "support and defend". Note that the President is specifically named in the enlisted's oath but not the officer's. Also, only the enlisted are sworn to follow the UCMJ, while the officers aren't.

The State Oaths of Office seem to follow the Federal, as the the Governor of most States seem to swear an oath similar to the President, except the State Constitution precedes the Federal in the constitutiona that the governor has the sworn duty to "preserve, protect and defend". The State Legislators and other officers take an similar to their Federal counterparts, except the State Constitution would also be "supported and defended".

By definition "preserve" means - "To maintain in safety from injury, peril, or harm; protect." This choice of words by the framers for ONLY the Presidential Oath might provide hw they view the office and the true meaning of what is expected from the President at the time of greatesr "peril" to the Constitution when the POTUS must become the Commander-in-Chief at the time of war, invasion or insurrecion.

Especially when contrasted to the Congress' sworn duty to "support" which means "To provide for or maintain, by supplying with money or necessities." Interestingly, these are the very tasks assigned the Congress at the time of war.
12.23.2005 5:02pm
Neal Lang (mail):
I find the following discuss interesting in understanding of the powers of the President, and how they differ at times of peril, when he wears the hat of Commander-in-Chief.
Section 2. Powers and Duties of the President

Clause 1. Commander-in-Chiefship; Presidential Advisers; Pardons

COMMANDER-IN-CHIEF

Development of the Concept Presidential Theory of the Commander-in-Chiefship in World War II--And Beyond

In his message of September 7, 1942, to Congress, in which he demanded that Congress forthwith repeal certain provisions of the Emergency Price Control Act of the previous January 30th, 119 President Roosevelt formulated his conception of his powers as ''Commander in Chief in wartime'' as follows:

''I ask the Congress to take this action by the first of October. Inaction on your part by that date will leave me with an inescap able responsibility to the people of this country to see to it that the war effort is no longer imperiled by threat of economic chaos.

''In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.

''At the same time that farm prices are stabilized, wages can and will be stabilized also. This I will do.

''The President has the powers, under the Constitution and under Congressional acts, to take measures necessary to avert a disaster which would interfere with the winning of the war.

''I have given the most thoughtful consideration to meeting this issue without further reference to the Congress. I have determined, however, on this vital matter to consult with the Congress. . . .

''The American people can be sure that I will use my powers with a full sense of my responsibility to the Constitution and to my country. The American people can also be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such defeat.

''When the war is won, the powers under which I act automatically revert to the people--to whom they belong.'' 120 From: Cases and Codes : U.S. Constitution : Article II

While no FDR fan, I must admit that his service to the country as CiC in WWII was great. It is from his willingness to take the authority necessary to properly prosecute the war that is the foundation of the modern concept of the American Commander-in-Chief.

Of course, the state of war affects more than the normal balance of power between the competing branches of government, as can be seen in this analysis:
CONSTITUTIONAL RIGHTS IN WARTIME

Constitution and the Advance of the Flag

Theater of Military Operations.--Military law to the exclusion of constitutional limitations otherwise applicable is the rule in the areas in which military operations are taking place. This view was assumed by all members of the Court in Ex parte Milligan,1529 in which the trial by a military commission of a civilian charged with disloyalty in a part of the country remote from the theater of military operations was held invalid. Although unanimous in the result, the Court divided five-to-four on the ground of decision. The point of disagreement was over which department of the Government had authority to say with finality what regions lie within the theater of military operations. The majority claimed this function for the courts and asserted that an area in which the civil courts were open and functioning does not;1530 the minority argued that the question was for Congress' determination.1531 The entire Court rejected the Government's contention that the President's determination was conclusive in the absence of restraining legislation.1532

Similarly, in Duncan v. Kahanamoku,1533 the Court declared that the authority granted by Congress to the territorial governor of Hawaii to declare marital law under certain circumstances, which he exercised in the aftermath of the attack on Pearl Harbor, did not warrant the supplanting of civil courts with military tribunals and the trial of civilians for civilian crimes in these military tribunals at a time when no obstacle stood in the way of the operation of the civil courts, except, of course, the governor's order.

Enemy Country.--It has seemed reasonably clear that the Constitution does not follow the advancing troops into conquered territory. Persons in such territory have been held entirely beyond the reach of constitutional limitations and subject to the laws of war as interpreted and applied by the Congress and the President.1534 ''What is the law which governs an army invading an enemy's country?'' the Court asked in Dow v. Johnson.1535 ''It is not the civil law of the invaded country; it is not the civil law of the conquering country; it is military law--the law of war--and its su premacy for the protection of the officers and soldiers of the army, when in service in the field in the enemy's country, is as essential to the efficiency of the army as the supremacy of the civil law at home, and, in time of peace, is essential to the preservation of liberty.''

These conclusions follow not only from the usual necessities of war but as well from the Court's doctrine that the Constitution is not automatically applicable in all territories acquired by the United States, the question turning upon whether Congress has made the area ''incorporated'' or ''unincorporated'' territory,1536 but in Reid v. Covert,1537 Justice Black in a plurality opinion of the Court asserted that wherever the United States acts it must do so only ''in accordance with all the limitation imposed by the Constitution. . . . [C]onstitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as at home.''1538 The case, however, involved the trial of a United States citizen abroad and the language quoted was not subscribed to by a majority of the Court; thus, it must be regarded as a questionable rejection of the previous line of cases.1539

The Constitution at Home in Wartime

Personal Liberty.--''The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.''1545

Ex parte Milligan, from which these words are quoted, is justly deemed one of the great cases undergirding civil liberty in this country in times of war or other great crisis, holding that except in areas in which armed hostilities have made enforcement of civil law impossible constitutional rights may not be suspended and civilians subjected to the vagaries of military justice. Yet, the words were uttered after the cessation of hostilities, and the Justices themselves recognized that with the end of the shooting there arose the greater likelihood that constitutional rights could be and would be observed and that the Court would require the observance.1546 This pattern recurs with each critical period.

That the power of Congress to punish seditious utterances in wartime is limited by the First Amendment was assumed by the Court in a series of cases,1547 in which it nonetheless affirmed conviction for violations of the Espionage Act of 1917.1548 The Court also upheld a state law making it an offense for persons to advocate that citizens of the State should refuse to assist in prosecuting war against enemies of the United States.1549 Justice Holmes matter-of-factly stated the essence of the pattern that we have mentioned. ''When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.''1550 By far, the most dramatic restraint of personal liberty imposed during World War II was the detention and relocation of the Japanese residents of the Western States, including those who were native-born citizens of the United States. When various phases of this program were challenged, the Court held that in order to prevent espionage and sabotage, the authorities could restrict the movement of these persons by a curfew order,1551 even by a regulation excluding them from defined areas,1552 but that a citizen of Japanese ances try whose loyalty was conceded could not be detained in a relocation camp.1553

A mixed pattern emerges from an examination of the Cold War period. Legislation designed to regulate and punish the organizational activities of the Communist Party and its adherents was at first upheld1554 and then in a series of cases was practically vitiated.1555 Against a contention that Congress' war powers had been utilized to achieve the result, the Court struck down for the second time in history a congressional statute as an infringement of the First Amendment.1556 It voided a law making it illegal for any member of a ''communist-action organization'' to work in a defense facility.1557 The majority reasoned that the law overbroadly required a person to choose between his First Amendment-protected right of association and his right to hold a job, without attempting to distinguish between those persons who constituted a threat and those who did not.1558

On the other hand, in New York Times Co. v. United States,1559 a majority of the Court agreed that in appropriate circumstances the First Amendment would not preclude a prior restraint of publication of information that might result in a sufficient degree of harm to the national interest, although a different majority concurred in denying the Government's request for an injunction in that case.1560

Enemy Aliens.--The Alien Enemy Act of 1798 authorized the President to deport any alien or to license him to reside within the United States at any place to be designated by the President.1561 Though critical of the measure, many persons conceded its con stitutionality on the theory that Congress' power to declare war carried with it the power to treat the citizens of a foreign power against which war has been declared as enemies entitled to summary justice.1562 A similar statute was enacted during World War I1563 and was held valid in Ludecke v. Watkins.1564

During World War II, the Court unanimously upheld the power of the President to order to trial before a military tribunal German saboteurs captured within this Country.1565 Enemy combatants, said Chief Justice Stone, who without uniforms come secretly through the lines during time of war, for the purpose of committing hostile acts, are not entitled to the status of prisoners of war but are unlawful combatants punishable by military tribunals.

Eminent Domain.--An often-cited dictum uttered shortly after the Mexican War asserted the right of an owner to compensation for property destroyed to prevent its falling into the hands of the enemy, or for that taken for public use.1566 In United States v. Russell,1567 decided following the Civil War, a similar conclusion was based squarely on the Fifth Amendment, although the case did not necessarily involve the point. Finally, in United States v. Pacific Railroad,1568 also a Civil War case, the Court held that the United States was not responsible for the injury or destruction of private property by military operations, but added that it did not have in mind claims for property of loyal citizens taken for the use of the national forces. ''In such cases,'' the Court said, ''it has been the practice of the government to make compensation for the property taken. . . . although the seizure and appropriation of private property under such circumstances by the military authorities may not be within the terms of the constitutional clauses.''1569

Meantime, however, in 1874, a committee of the House of Representatives, in an elaborate report on war claims growing out of the Civil War, had voiced the opinion that the Fifth Amendment embodies the distinction between a taking of property in the course of military operations or other urgent military necessity, and other takings for war purposes, and required compensation of owners in the latter class of cases.1570 In determining what constitutes just compensation for property requisitioned for war purposes during World War II, the Court has assumed that the Fifth Amendment is applicable to such takings.1571 But as to property seized and destroyed to prevent its use by the enemy, it has relied on the principle enunciated in United States v. Pacific Railroad as justification for the conclusion that owners thereof are not entitled to compensation.1572 From: Cases and Code: U.S. Constitution: Article I

With regards to the issues being discussed here, the section on the impact to Contitutional Rights by War is interesting. When you consider that the 4th Amendments right of the people to be "secure in their persons, houses, papers, and effects", is connected to the concept of the 5th Amendment's "Eminent Domain". It would seem that if "Eminent Domain" loses its some of its force, during a time of war, the 4th Amendments idea of being secure in one's home does not seem as strong. Of course, since the Kelo decision, it is not certain that a majority of the current Supreme can even find the 5th Amendment "takings clause"!
12.23.2005 5:46pm
Neal Lang (mail):
I disagree with Orin Kerr when he says "[the executive] complying with statutory rules after legislation had been enacted is a question of statutory law, not constitutional law." Article II commands the executive to "take care that the laws be faithfully executed." "[T]he laws" include statutes like FISA. If President Bush has not faithfully executed FISA he has committed an offense against the Constitution.

Consider the unique Presidential Oath to "preserve and protect", as well as "defend" the Constitution. What happens when the President and his advisors belief that a law (FISA) conflicts with another law (the 2001 AUMF) to the point where complying with the one may imperil the Constitution? Is the President, in a time danger, responsible and bound by sworn duty to ignore the offending law (FISA) in order to "preserve and protect" the Constitution by properly executing the other law (the 2001 AUMF)? What happens if there is a conflict between statutes? Normally, in the silence of legislation, the most recent takes precedence.
12.23.2005 6:02pm
Professor Michael Angelo (mail):
Although George Bush would not agree, the president of the United States is bound by laws passed by Congress. This is true even in times of war. In a long line of cases spanning more than 200 years, the Supreme Court has squarely held that the Constitution gives legislative power to Congress and that the President is required to comply with acts of Congress. See Little v. Bareme (1804), Brown v. United States (1814), and the Steel Seizure case from the Korean War. But the war on terrorism should not be considered a real war. Wars are waged against an enemy, whereas terrorism is a tactic, not an enemy. Terrorism has been used by many groups, including the French resistance against the Germans in World War II, Basque separatists in Spain, the IRA in Great Britain, right wing extremists in Oaklahoma City, and various Arab terrorists in Iraq and elsewhere. A war against terrorism has no end because it has no identified enemy. Lets stop talking about a war against terrorism and instead identify the enemy so that the war can have a beginning and an end.
12.24.2005 12:23pm
murky (mail) (www):
There's both the letter and the spirit of the Constitution to consider here, because (so far as I know) Congress can reasonably impeach a president on either ground. If Congress passes a law that a prior president signs which strictly regulates exactly the governmental activity the president wishes to authorize, then by flouting that statute he or she violates the spirit of the Constitutional prescribed balance of powers. By "flout" I mean, in secret, without consulting a congressional committee, without effort to distinguish the present circumstances from those that the statute addressed, without providing credible evidence that doing things by the book would have come at any cost beyond president PR control and Republican campaigning.
12.24.2005 4:25pm
Professor Michael Angelo (mail):
The Supreme Court has not decided the issue of whether a Fourth Amendment search warrant is required for foreign intelligence surveillance. In the Keith case, they specifically stated that they were not deciding the issue. Following Keith, Congress passed FISA. The Fisa procedures are the only legal procedures for electonic surveillance of comunications between US persons and foreign sources. Geoge Bush's violation of FISA is a criminal violation and an impeachable offence. But with the Republicans in control, Bush will not be impeached or prosecuted.
12.24.2005 4:46pm
rich (mail):
In thinking about the powers of the executive please remember Shay's rebellion. It is relevant to the discussion.

Should terrorism in the homeland be considered either "invasion" or "insurrection?"

Why don't other 4th amendment exceptions apply? Like exigent circumstances and special needs?
12.26.2005 8:20pm