Great Post, and Very Good Comments:
I was extremely impressed by Orin's post on the domestic surveillance issue -- and also by the general quality of the comments, which are mostly very substantive, thoughtful, and well-informed. Don't be distracted by the first comment, which is from a commenter whose comments often tend toward sarcasm and political point-scoring. Read past it and past the thank-you notes to Orin (which are much appreciated but which I can't claim are deeply substantive), and you'll see a generally excellent discussion.
All Related Posts (on one page) | Some Related Posts:
- Congressional Research Service Report on NSA Surveillance:
- Data-Mining, FISA, and the NSA Surveillance Program:
- New Risen Book Sheds Light on NSA Surveillance Program:...
- A Few Additional Thoughts on NSA Surveillance:
- Great Post, and Very Good Comments:
- Legal Analysis of the NSA Domestic Surveillance Program:
- Deputy Attorney General Stepping Down:
- Staffing the Justice Department:
Yes, but they're often also funny as hell.
Why didn't they use the FISA court? Everyone agrees that the standard for a warrant from FISA is very low. FISA is a secret court. FISA allows for a retroactive warrants up to 72 hours after monitoring begins.
Given those facts, is not the simplest solution that the warrants would not have been granted had the application been submitted? If we assume that is the case, it indicates these wiretaps were not legitimate. Either they were sometimes (always?) entirely domestic, or they sometimes targeted individuals that were not related to national security or terrorism or both. In light of the recent revelation of CIA monitoring of anti-war groups, its also difficult to say the federal government would not sink to using its powers to monitor political foes.
The President doesn't have unfettered power, even in wartime.
I think the most obvious answer is 1805(a)(3)(A), which requires the FISC to find that "there is probable cause to believe that . . . the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States."
FISA was written before cell phones, the internet, and other such technologies. It was also a by-product of the Church Committee and the generally anti-intelligence atmosphere that existed post-Watergate and post-Vietnam. That public support seems to be rising for the President, rather than falling, after the latest brouhaha suggests that now the public is more interested in security than privacy. Maybe the moral is that we need more PATRIOT Act-like changes to FISA to give US intelligence agencies more lattitude and discretion in their intelligence gathereing activities.
Here are the emergency procedures in 50 USC 1805(f):
"(f) Emergency orders
Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that— (1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and (2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists; he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. . . ."
So, I'm not sure what you mean by these emergency procedures only applying in "special circumstances"--they apply if the facts would otherwise support a FISA warrant, but the government could not get one in time by exercising due diligence. And if in practice getting approval within 72 hours was proving too "cumbersome", then the President could have asked Congress to change the statute. And yet he didn't even ask for such an amendment.
So, frankly, this entire line of reasoning actually makes no sense as a rationale for the President's program. Indeed, if the problem was really just that 72 hours was not long enough for administrative reasons, but the President was otherwise willing to faithfully execute the law by enforcing the FISA procedures, then the President could have temporarily authorized the government to take longer than 72 hours to get the warrant if necessary, while at the same time he sought an amendment of FISA. I'm not sure that is legal either, but at least that would make sense if it was really just an issue about whwther 72 hours was long enough.
Instead, the President authorized doing the surveillance without ever seeking a warrant. And he kept reauthorizing this program over the course of years without ever going to Congress. It is hard for me to see that as a reasonable response if the problem was just that the 72 hour limit was proving too cumbersome. Instead, that seems like a response to the substantive requirement of the emergency procedures: that the facts must be such that they could actually get a FISA warrant.
In other words, instituting an ongoing program in which they never seek a warrant at all really only makes sense if they want to avoid judicial review entirely (cumbersome or otherwise). And I strongly suspect they didn't go to Congress because they knew that they would not get authorization on those terms (indeed, AG AG basically said as much).
Which, incidentally, casts significant doubt on their claim that Congress intended to provide such authorization in the 2001 AUMF.
In other words, the claim that FISA is too antiquated to handle new technologies is not well founded.
http://everythingbetween.com/images/rockefeller.pdf
Although, honestly, he shouldn't. Minority parties should be frozen out of all decisionmaking in the Congress.
FISA assumes that first investigators find a person of interest, then start electronic surveillance of him.
I think the opposite is the case. Electronic surveillance of all occur and is used to identify persons of interest. Morever I suspect the actual human analysis is of historical communications as well as prospective.
There is nothing unusual in this from the viewpoint of electronic intelligence in wartime. How many times in WWII do you suppose a piece of intercepted information suddenly made sense when historical records were examined. One example is the determination that Midway was the destination of the Japanese main fleet and the Japanese operations in the Aleutians a feint. U.S. forces deliberately sent a message about Midway in the clear, then picked up a Japanese code name for Midway in a Japanese message about the intercept, and then could verify that a whole raft of previously intercepted messages dealt with Midway as a target.
You can't make it fit within FISA -- the frameworks are totally different- temporally and in scope. FISA assumes propsective surveillance. In reality you suck everything in, then attempt to determine what in it is significant by looking for patterns.
FISA assumes that first investigators find a person of interest, then start electronic surveillance of him.
I think the opposite is the case. Electronic surveillance of all occur and is used to identify persons of interest. Morever I suspect the actual human analysis is of historical communications as well as prospective.
There is nothing unusual in this from the viewpoint of electronic intelligence in wartime. How many times in WWII do you suppose a piece of intercepted information suddenly made sense when historical records were examined. One example is the determination that Midway was the destination of the Japanese main fleet and the Japanese operations in the Aleutians a feint. U.S. forces deliberately sent a message about Midway in the clear, then picked up a Japanese code name for Midway in a Japanese message about the intercept, and then could verify that a whole raft of previously intercepted messages dealt with Midway as a target.
You can't make it fit within FISA -- the frameworks are totally different- temporally and in scope. FISA assumes propsective surveillance. In reality you suck everything in, then attempt to determine what in it is significant by looking for patterns.
I have a couple theories about this:
1. The W. admin has some weird legal theories about presidential power, and they prefer to act on these theories until a court clearly says no, rather than looking for compromises that would avoid a constitutional or legal confrontation. Thus, if some admin lawyers thought they should go to FISA and others had a rationale for not going to FISA, the administration would choose not to go to FISA.
2. the facts involved actually do fit into a FISA exemption, but they don't can't reveal the exonerating facts without compromising national security. Thus, we get a political circus.
3. the facts do violate FISA, but the actual facts are so clear that W. thought he had to proceed (i.e. they are tapping calls between known Al Qaeda members rather than calls between Cindy Sheehan and Joe Wilson).
Right now, I think that one or some mix of these theories must be true, and that the Bush administration wouldn't be dumb enough to break FISA for a venal political reason.
But, so far, the Bush administration has been consistent in surprising me in how dumb, venal, and insensitive to public opinion they can be. I really hope I don't get surprised again.
I do not necessarily fall into that camp, however I am disturbed by that fact that after issuing the directive the president did not turn to congress and request changes to FISA. Especially considering we had already amended it with the original Patriot Act.
Is there some way to harmonize those positions? Is it that our enemies are so stupid that they wouldn't figure out that the President was likely doing something that the Constitution permits him to do? Is it some sort of pseudo-Straussian thing, where we need to let people believe that the Constitution and laws mean one thing, while the Executive secretly decides that they mean something else?
I really don't get it.
More precisly, various Democrats are claiming that they received briefings, but that the briefings left out key details. I'm not sure what else Rockefeller in particular has said, but in that letter he claims that he cannot make a proper assessment without more information.
You mean a bill like, say, FISA?
If the President ends up claiming that he can order people to violate federal laws like FISA based on his Article II powers, then another bill isn't going to help. At that point, the only remedy available to Congress might be impeachment.
The answer is when he can get away with it politically. vide, Andrew Jackson's dealing with the Cherokee nation and his contempt for orders of the U.S. Supreme Court in that matter.
The Executive branch of our government is doing its job. There is a debate on the FISA law. If...Levin, Feingold, Boxer, etc. dont like it. Introduce a law that spells out the specific violations taking place, and put that law up to a vote.
Problem?
Yes, anyone introducing such a bill would be out of a job on the next election cycle. Oh. I forgot. It is better for the above to have the battle than fix the problem.
Yes we are a nation built on checks and balences. Just Congress refuses to do its job.
Get a clue. SCOTUS does not govern the nation.
The war-time model is the inverse: you do lots of listening and use that information to pursue further invesigation.
Others have asserted above that the FISA has been updated periodically to adapt to technical changes. But when the technical changes include the ability scan (and link) large volumes of phone calls, do partial real-time phrase recognition and archiving, you can't use any of that technology under the 'identify first, listen later' model. In this case, you wouldn't be 'revising' the FISA, you would gut it. So the admin is actually saying it wants to preserve the FISA for normal COIN work; but that the pursuit of combatants on US soil falls under executive prerogative as CINC. Sounds reasonable to me.
This is war-time intel gathering, not preparation of evidence for criminal prosecution. In addition, many constitutional guarantees still exist (e.g., you can't be prosecuted with the evidence gathered) if a decision to arrest and prosecute is made anyway. So what's all the noise about?
Part of all the noise has to do with the culture wars: to which Constitution are you referring? What was actually written down prior to the Warren and subsequent courts? Or the post '60's left-wing civil libertinism of emanations of the penumbra (contraception, abortion, sodomy), 'freedom of expression' (pornography, sedition). As for me, I'm quite comfortable with the pre-1960's constitution, while the later innovations are an insult both to my intelligence as a matter of reasoning and to my rights as a citizen to make law through the legislature, and are not worth much loyalty.
The Executive can overturn the Judiciary at any time by simply NOT enforcing whatever judicial edict comes from SCOTUS. See Andrew Jackson and the Cherokee Indian case. (I think there's another case of that but my Conlaw memory is failing me). And to give you a Civics 101 class, the executive branch's job is to "enforce" the law. In this case, not only did he not enforce the law, the President probably violated it by not following the FISA.
Congress did not refuse to do the job. Congress passed the Patriot Act and frankly, the President could have asked Congress for more powers but did not. Instead, he usurped Congress by authorizing without seeking a formal law from Congress. To allow this to happen sets a dangerous precedent: whenever a President wants more power, he just authorizes it and *poof* it's his to have. That's not government for the people or by the people. It's government by dictatorship.
Nonsense. Where's the evidence of dictatorship? First, show me anyone who was harmed in any commonly accepted way. Second, where are the thousands of arrests? Where is the imprisoned opposition, the newspapers shut down? The spying on domestic opponents?
And don't respond, "We don't know who was spied on." Really? Then who was harmed? What good is an appartus of oppression if you can't, well, get it to oppress anyone?
Most of this discussion is taking place within a post-'60's haze of notions of civil liberties that are incompatible with both self-government and the war-time defense of the nation.
There's a reason why every President since Carter has had accusations of 'civil liberties' infringements or 'un-Constitutional' national security related activities: the ACLU conception of civil liberties is fundamentally at odds with the political powers granted the President under the real Constitution.
Christopher,
Here is a good perspective by Walid Phares about what the cost of the leak is.
I'm honestly not sure what you are suggesting. If the claim in Congress is that the President is ordering people to commit what are already crimes under FISA, I don't understand how you think Congress should legislate. Pass FISA again (maybe with an attached "And this time we really mean it!")? Pass a law accusing the NSA of breaking the law? That would actually be an unconstitutional bill of attainder.
So, I really don't get what you are proposing. If Congress finds that the President is ordering people to commit crimes, then they really only have one recourse--impeachment.
PierreM,
Why would anyone think FISA assumed a criminal law perspective? FISA was designed to deal with SPIES (eg, actual KGB agents, and US persons working for the KGB), not ordinary criminals (the surveillance provisions dealing with ordinary criminals are in Title 18, FYI).
And I actually find it a little amusing that people are implicitly asserting that the US agents of a group like Al Qaeda somehow pose a more sophisticated threat than the US agents of the KGB, or their modern equivalent. Sure, technology has changed since 1978, which is part of why it made sense for the USA-PATRIOT Act to modify parts of FISA. But the basic idea that a system designed to deal with agents of foreign governments like the Soviet Union is somehow completely inadequate for dealing with agents of terrorist organizations like Al Qaeda strikes me as laughable.
Once anyone travels down the "inherent authority" slope, then every constitutional provision is subject to the "suspension in time of war" argument. That includes presidential elections. And the 22nd Amendment limiting president's to two terms.
If the response is, "well, no one's suggesting a 'self-declared war-time president' has the power to ignore explicit limits in the Constitution regarding term of office," I suppose the question becomes, "explain the principled difference between why it is Bush must follow the 22nd Amendment in wartime but not Congress' Art I, Sec. 8 authority to regulate the armed forces (through limitations on wiretapping by the NSA, for example) and the 4th Amendment"?
What, exactly, under this inherent-authority argument stops the president from detaining American citizens on a claim of necessity as "enemy combatants," removing them from the US on a claim of necessity, moving them to God knows where, and then, again claiming necessity, leaving them incommunicado?
What limiting principle exists?
Congress at least has the express authority to enact laws "necessary and proper" to carryout its enumerated powers. No such language exists in Art II, however.
And imagine the next president (assuming we get one) deciding that American citizens who overtly dissent are giving aid-and-comfort to our enemies, so these citizens must be removed and secluded until the war's over.
Done under the president's inherent authority to ignore the 4th and 5th Amendments because it's wartime. And 4 Senators are told but with the qualifier that it's TOP SECRET, so they can't share the information or they'll be removed, too.
Again, where's the limiting principle.
Specifically, there are numerous citations to the "Supremacy Clause" as justifying the President's actions --- as I understand the position, the Supremacy Clause somehow makes the President "supreme." Second, I see numerous references to the President's power as Commander-in-Chief, which gives him the power to ignore duly enacted laws of Congress -- as I understand the position, this makes him "Commander in Chief of all laws." Third, there are various references to the post 9/11 authorization for the use of force as justifying this, in addtion to the preceding clauses (never mind that if this were true, the PATRIOT Act would have been unnecessary).
So, what Professor Volokh calls "sarcasm" is in fact the position of those defending the President's actions. To wit, the President, as Supreme President pursuant to the Supremacy Clause, has disregarded a duly enacted law because he is Commander-in-Chief of all laws, and moreover we are at war with a enemy that wants to kill us (like all our past enemies, but this enemy REALLY wants to kill us) so we must disregard little constitutional "procedures" like checks and balances. In any event, the AUMF authorizes the President to do anything he wants that could reasonably be viewed as fighting terrorism, and Congress gave him this power. So there. Sounds sarcastic yes, but it is in fact the position of the Executive Branch along with its enablers in the right-wing
mediaecho-chamber.US citizens killed by the KGB in the Unites States in 50 years: 0.
Americans killed by al Quaeda in the US in 1 morning: 3,000.
No, it's not laughable: it's any entirely different enemy fighting with entirely different means. The Soviets in the US were SPIES. Al Quaeda's people in the US are COMBATANTS. The Soviets were deterred by MAD, al Quaeda is not.
Got it yet?
The point is NOT to catch a spy or diplomat engaged in illegal activities (no matter how damaging). The point is to intercept combatants before they attack. The first is a law-enforcement COIN operation against a rational opponent using limited means (not unlike countering the Mafia), which is why these ops were left (largely) to the FBI. The second is a military intel operation to find and destroy an irrational opponent already inside your territory before they can strike and possibly destroy your country.
It's really amazing to see how many people simply cannot leave the Cold War paradigm behind.
"we are at war with a enemy that wants to kill us (like all our past enemies, but this enemy REALLY wants to kill us) . . ."
Yes, but Greedy Clerk, this enemy REALLY wants to kill us WITHOUT THE MEANS OR POWER OF A NATION STATE BEHIND IT — making this enemy more dangerous than, say, the Weathermen, the SLA starring Patty Hearst, and the Black Panthers.
I'd not put the Soviet Union, the Union Army or Confederate Army, or early 19th century England on a par with those organizations . . . or this enemy.
Why? Because George Bush wasn't president then. And Karl Rove and Dick Cheney weren't around to call the shots.
And, no, VC, this is not sarcasm. It is resignation.
But what if the surveillances were aimed at persons in the country on tourist or student visas or those here illegally? The hijackers would not have been protected under this reading, nor would grad students. Citizens and holders of Green Cards would have been. Do we know with any certainty who the targets were inside the U.S.? That could make considerable differences.
There's still much to be learned about the program and much may remain hidden, given the nature of intelligence work. As a personal matter, I can't see open Congressional hearings on this issue.
If a general in charge of, say, the Third Army, ordered his soldiers to do acts in violation of FISA (or any other law enacted by Congress), would he or his soldiers have some sort of immunity on the ground that he was acting in his role as commander of part of the Army?
If the top General of the Army (I don't know the title) did the same thing, would he have some immunity on the same ground, i.e., acting in his role as the commander of the entire Army of the United States?
If not, then why would the Commander-in-Chief of the Army and Navy of the United States have any such immunity?
There are lots of very thoughtful posts on why the President is well within his rights under the FISA law. So. it is a debate. Congress is the only branch of govt that writes laws. SCOTUS should not. Absent a constitutional precept, SCOTUS has no standing.
Want a solution, look to the congressional branch of govy, not the judicial.
Medis
No crimes have been committed under FISA. You may have a different opinion. You are welcome to you OPINION. lets not be in the middle of a sentencing hearing befor even a charge has been brought forth. See I do understand the constitution. I would love to Any congressman, ANY, bring impeachment charges against Bush. The would be out of office in two years along with the member that did the 2cnd.
I'm not saying the threat from KGB spies was identical--although I would suggest the potential stakes were as high or higher. Rather, I am suggesting the idea that Al Qaeda agents somehow pose a more sophisticated surveillance problem than agents of foreign powers is laughable. And the fact that Al Qaeda agents may eventually become "combatants" does not somehow render them more difficult to surveil.
And again, it is simply wrong to claim that FISA is about criminal enforcement. FISA is specifically NOT about criminal enforcement--the minimization procedures are designed to prevent law enforcement officers from using FISA as an alternative to ordinary criminal surveillance. Rather, FISA is explicitly about collecting "foreign intelligence information."
Perhaps it is worth quoting FISA's definition of "foreign intelligence information":
"'Foreign intelligence information' means— (1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against— (A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or (C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or (2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to— (A) the national defense or the security of the United States; or (B) the conduct of the foreign affairs of the United States."
So, this suggestion that somehow FISA is based on a criminal enforcement paradigm, and surveillance of agents of international terrorist organizations requires some new paradigm, is really just nonsense. FISA is about confronting exactly this sort of problem--how to authorize surveillance of suspected agents of foreign powers in order to protect against actual attacks, sabotage, and terrorism.
You say there is a "debate" about whether the Administration followed FISA. Interestingly, however, I have not seen anyone speaking for the Administration claim that FISA authorized all of this surveillance. Rather, they appear to be relying on the 2001 AUMF and the President's Article II powers for at least some of this surveillance. So, as much as some people in the blogosphere are trying to argue on their behalf that maybe it was all authorized by FISA, I would like to see someone in the Administration actually make that claim and explain their reasoning. Otherwise, I don't see how there is really a "debate".
In any event, I again just don't understand what you are proposing. Suppose someone in Congress thinks they are already violating federal law. What exactly do you think they should propose? A new law saying the same thing as FISA? What would be the point?
Finally, you keep referring to the Supreme Court, which has yet to play any role in this issue. So I'm not sure why you are attacking them--what in your opinion have they done?
This is a key point. Right now, we're dealing with rather murky and general news reports on the order of "NSA spied on people in the United States without getting a warrant." And it matters -- legally (both under FISA and under the constitution) and morally (a tourist, or even a student visitor who owes allegiance to a foreign power should not have the same expectation of privacy in his/her communications) -- what the status of the targets was/is.
Likewise, my comments in a previous thread pointed out that the temporal context matters, too. If we are talking about "surveillance outside of FISA" in the immediate days or weeks (or even months?) after 9/11, based on our immediate reaction to the attack on America, I think the President's Article II powers rationale is quite compelling.
If we are talking about surveillance in 2003 or even today, I'm not buying it.
Again, I think it's wrong to state a definitive opinion until we know more.
Right now, my tentative opinion, based on what I understand happened, is that the Executive has a pretty weak argument.
Personally, thinking about the "USA v bin Laden" case, I wonder if there isn't some precendent to think that al Qaeda is a "foreign power" under 1801(a)(1-3). If so, then the whole question is settled, no? At that point, as with Aldrich Ames, the people involved become agents of a foreign power as defined in the more restrictive sense, and the 1802 approach to intercepts without a court order applies.
Since it sounds like the Administration actually followed the 1802 procedure, it would seem very probable that's the underlying theory on which they proceeded, if only to have a fallback if the executive powers argument dfailed.
A) Yes, they do pose a more sophisticated intelligence problem. The purpose of KGB spying was to gather classified information regarding US defenses and to recruit Americans to do the same. This offers a very narrow band of activities and areas of interest, all of which were to a greater or lesser extent directed towards targets 'hardened' against such activities by classification itself, compartmentalization, active intra agency or firm security probes, clearance checking, etc.
In this case your COIN ops are rather small and narrowly focused, and if you fail here, you may lose important defense or national security info, but you don't lose the whole enchilada.
Al Quaeda's attacks are directed against the whole of the society (which is not hardened), and devoted not to information gathering but to the complete destruction of the economy and polity. You have no idea where these guys are hiding. You have no idea what specific targets they are acquiring for mass attack, nor what means they intend to use against them. They have a decentralized personnel and support network, as well as new, decentralized communications technology (calling cards, prepaid cell phones, the internet). Many of these combatants will carry the national identity (forged or real) of close allies to whom you have granted unrestricted access to your country. You have no effective means of responding after an attack takes place. If you fail (as we know) thousands of innocent people will die.
Going after KGB spying was already difficult; going after al Quaeda sleepers is a nightmare.
B) The law enforcement model:
i) as far as I know, all FISA activities in the past were run through the FBI and DOJ;
ii) you have to go to a judge to get a warrant (just like regular criminal cases, even if the procedures are eased);
iii) most cases involved foreign spies or Americans acting as foreign spies. In the cases of the Americans, these cases were referred for prosecution;
So it quacks like law enforcement, paddles around the warrant pond, and has feathers like criminal prosecutions.
But it's really a rhinoceros?
I know what FISA was directed at: what I'm saying is that the application of the law-enforcement model to al Quaeda is simply asinine.
You've said it best, I think.
You've joined a politically pragmatic and legally defensible argument on domestic tapping targeting people (to some degree I assume) on something passing for reasonable suspicion under the 4th Amendment. And you offered a temporal continum, maybe a more generous one than I would (but a very defensible one), to the date of the 9/11 attack. I think your position works better than FISA in the near term after an attack. Over time, transition to FISA is required.
(And, yes, my go-by is a nod to a Demon Deacon QB.)
>>>>
Anyone have a clue how many wiretaps have been used outside FISA? I 'heard' Monday that the number was less than thirty.
>>>
Where did you say this? The POTUS, NYT report and subsequent reports said 500 US persons at any given time.
>>>>
If the Judicial Branch can overturn the Executive Branch in this instince, when can the Executive Branch overturn the Judicial Branch???
>>>>
1- The Executive Branch is intended to be the weakest since it was deemed the most dangerous by the Founders.
2- When they nominate the members of the Judicial Branch.
>>>>>
The Executive branch of our government is doing its job. There is a debate on the FISA law
>>>>
No there is not. Locate one legal scholar that thinks this is covered under FISA. Bainbridge doesn't support you, the good people here at VC don't support you, the U of Chicago Law Blog does not support you, Jurist from Pitt doesn't support you, Senator Graham (Republican) noted legal scholar does not support you, Sen Specter (Republican) head of the Judicial Cmmt does not support you. It doesn't approach a reasonable argument.
>>>>
I Will repeat. And. Type reeeeal sloooowww. Any congressman can introduce a law limiting or defining in an exact language stopping the US gov from doing those things they object to.
>>>>>
Thaaaaattts whaaaaat FISA dooooessss. The President claims he can do whatever he wants because Congress authorized the use of military force in Afghanistan.
Most probably because the Administration believes, with pretty good cause that we are in a war whose final outcome might mean the end of Western culture should we be defeated. That said, no President, in a "life and death struggle" would want to turn his prerogatives up to a life tenored judge who, unlike the President, would never be held responsibile for his bad decisions.
I believe the "9/11 Commissions", flawed as it is, could be re-read to see why lawyers and judges make poor Commanders-in-Chief. The exception being perhaps Lincoln.
Neither the Courts (who have bent the 4th Amendment beyond all recognition), nor the Congress (who methodically gutted America's intelligence gathering capabilities for nearly 3 decades) were held acountable for the failures related to "9/11". All responsibility was laid on the Executive, whether this Administration or the last. The first rule of management - Authority and Responsibility must be balanced. Unless the FISA Court and the Congressional Oversight Committees want to step-up and take responsibility for the failures they largely contributed to, the Executive must "take" the authority necessary to balance the responsibility that "the People", the media, their political opposition, and the Congress will look to them to accept.
Never in our history has "Military tactical intelligence" been subject to whims of unaccountable judges. It is amazing that the enemies who would murder our citizens and destroy our society are accorded safe haven to plot and organize their nefarious deeds, protected by the very "civil rights" that they reject and wish to erase. If there were one example given of misuse of these "signals intelligence" collected since "9/11" (and perhaps even before, during the Clinton Administration), possibly the President's critics might have a case. If the President misuses the authority he took to secure all our "human rights" of "life, liberty, and the pursuit of happiness (property)", then "take him to the woodshed". But only in the "upside-down" - "MSM created Kafkaque World" is the terrorist innocent until proven guilty, and society's protectors, like President Bush and our great military, guilty until proven innocent. Truly amazing!
I don't believe any physical US "wiretaps" have been used without a proper FISA warrant. What we have here is "signals intelligence" - the only way a mobile cell-phone can be moitored properly. I also believe all these experts on using the courts to limit US "counterterrorist intelligence" capabilites will be total surprised when they find out that none of the "SIGINT" gathering took place in the US, so the FISA "huddlers" to the President's ability to defend this country don't even apply.
I have two questions. One is substantive. One is procedural. They are related. They might be preceived as being flame bait, or as "sarcasm and political point-scoring," but they are not so intended. At worst, they simply demonstrate my ignorance.
First, assuming the Article II "inherent authority" argument is accepted, could a President (and I don't mean to limit this to, or pick on, President Bush) simply order that someone be killed? Including a U.S. citizen who he concludes is an agent of a foreign power?
Secondly, who decides? Or more precisely, who has the final decision? Could the President do so without anyone other than the President determining probable cause, guilt, necessity, etc.? Would any post... termination review be possible? If someone tried to prosecute the President for murder, would any Court hear the case? If the deceased's spouse sued the President or the government for wrongful death, would any Court her the suit? Are there any limits? Would a court impose them?
I realize this appears to be over the top. Probably is. But, after reading Prof. Kerr's article, and all of the comments, I have a somewhat emotional, somewhat intellectual response of being unmoored.
I mean, why should Congress pass any legislation if the President has inherent authority to pretty much do any damn thing that he deems necessary?
In addition, Prof. Kerr stated his belief that "all of the monitoring involved in the NSA program involved international calls (and international e-mails)." I'm not sure his belief is warranted. More importantly, even if accurate, I'm not sure it is relevant. Surely, the President has "inherent authority" to monitor communicatons wholly within the U.S. soley between U.S. citizens (albeit alleged AFPs) if it will prevent another 911 or worse.
Apodaca is right. You can't use 1802 for warrantless surveillance of US persons who are suspected of being agents of foreign powers. Indeed, that is exactly the sort of situation FISA is designed to cover.
Neal,
No one in our system of government gets to "take" authority. And incidentally, are you seriously claiming that only the Executive is held responsible in the exact same post in which you hold Congress, the courts, the media, etc., responsible? Or do you think you are the first and only person to come up with those criticisms?
If I may, I believe that your point is that there is no apparent limiting principle to the Article II argument ... nor, for that matter, to the 2001 AUMF argument. Indeed, it seems like a few people commenting here are perfectly happy with that result--they wouldn't mind if the President "takes" absolute authority in the name of national security.
I would find that attitude somewhat baffling, except throughout history and around the world, various people have gone or are going for the idea that The Strong Man is the ideal form of government. So, I suppose it isn't that surprising that some Americans (I assume they are Americans) would also go for that idea. Fortunately, I am reasonably optimistic they are a minority.
I honestly wasn't trying to make a point. I was, and am, concerned, but I was asking... looking... "fishing" for a limiting principle.
Sorry, I shouldn't put words in your mouth.
But I might note that a lot of us have been asking for the relevant limiting principlez for several days now. And so far, all I have seen in reply is a quote from the President that he has no intention of becoming a dictator.
Which, I might note, actually isn't a limiting principle--it is an expression of his will, and doing whatever he wills is pretty much what defines a dictator.
It happens everyday in the real World - especially in "life and death situations". However, you typically won't see it in situations involving judges and lawyers.
I believe what I said was: "Unless the FISA Court and the Congressional Oversight Committees want to step-up and take responsibility for the failures they largely contributed to" - I held "Congress, the courts, the media, etc., responsible" ONLY for insisting that the Executive "take responsibility" for failures in areas that only the Congress and the Court have the authority to control - such as "intelligence failures" due to the lack of issuance of "FISA Warrants". For a "real life demo" please see the "9/11 Commission Report" and subsequent Report Card! Since the 1970's the courts and Congress have made intelligence gathering by the US a processed controlled by lawyers and judges, and the operators with technical qualifications to get the job done. The victims of "9/11" who had their "human rights" to life violated in the airliners, at the Pentagon, and in the WTC, could care less if a violation of Mohammed Atta's "civil rights" to plan and execute his attack free from Federal eavesdropping may have prevented this tragedy. I am not sure where the train went off the track, but I can assure that the Founders of this country never believed anyone had a "human or civil right" to do evil.
Failure of the Executive to stop another "9/11-like attack", because some FISC judge didn't think sufficient "probable cause" existed, and refused to issue a "FISA Warrant", will not affect the "life tenured" judge, but will definitely impact the dead victims, and the standing of CiC, because - "the People", the media, the political opposition, and the Congress - will blame the President, because it occurred on his watch. My point is that if the Executive is to be held responsible for the outcome, it should have ALL the authority necessary to effect that outcome. Anything less and you will have a Kafkaesque system where the party responsible lacks the appropriate authority, and those with the necessary authority lack any responsibility. It doesn't work in Business Management, anymore then it does in government or warfare.
That is exactly what President Abraham Lincoln did between his inauguration in April 1861 and the return of Congress some 81 days later, including "calling forth the militia; spending unappropriated funds for military supplies; and suspending habeas corpus. Of course, had he hesitated, I doubt today would have United States to worry about, thus we would never be having this discussion!
I find it interesting that "civil libertarians" do not approve of "prior restraint" when comes to the "freedom of the press" to print sensitive intelligence "sources and methods" that have major negative impacts on our National Security, but then insist on the application of all "revelant limiting principles" to constrain the Command-in-Chief in exercising his most important duty of assuring the Nations Security. I think the only "relevant limiting principle" should be "no harm - no foul". I believe the President should be allowed all the latitude necessary to get the job. If in "getting the job", the President should use the intelligence for nefarious purposes, beyond the scope of defending the National Security, than he should be subjected to any all sanctions applicable to abuse of office - including impeachment, imprisonment and fines. If it should extend to treason, then a capital punishment should be imposed. So far, any evidence of Presidential "foul play" involving the "foreign intelligence" collected without warrants has not been forthcoming.
Actually, I had more The Castle - "bureacratic nightmares" - in mind. Of course the term pretty well fits anyone insisting on a cure for a problem that doesn't exist, to wit:
The operative words being "surreal", "distortion", and "fantasies". As in "surreal""distortions" of the President motives in the warrantless collection of tactical foreign intelligence leding to "fantasies" of "impassive interrogation, the false trial, the confiscated passport". Of course, the terrorist theat is real, as we experience on 9/11, however, any "civil liberties" violations are merely Kafkaesque "wet dreams".
So, your view is that a world in which the President can take whatever authority he wills is not really Kafkaesque? In your view, any supposed problems with this scenario would just be a Kafkaesque "wet dream" (although I'm not sure that last phrase means what you think it means)?
Again, I think your words do a better job of refuting your views than I ever could. But for "fun", I will quote a little from The Trial.
The beginning:
"Someone must have been telling lies about Josef K., he knew he had done nothing wrong but, one morning, he was arrested."
From the middle:
"But K. should not forget that the trial would not be public, if the court deems it necessary it can be made public but there is no law that says it has to be. As a result, the accused and his defence don't have access even to the court records, and especially not to the indictment, and that means we generally don't know - or at least not precisely - what the first documents need to be about, which means that if they do contain anything of relevance to the case it's only by a lucky coincidence. If anything about the individual charges and the reasons
for them comes out clearly or can be guessed at while the accused is being questioned, then it's possible to work out and submit documents that really direct the issue and present proof, but not before.
Conditions like this, of course, place the defence in a very unfavourable and difficult position. But that is what they intend. In fact, defence is not really allowed under the law, it's only tolerated, and there is even some dispute about whether the relevant parts of the law imply even that."
And the end:
"Were there objections that had been forgotten? There must have been some. The logic cannot be refuted, but
someone who wants to live will not resist it. Where was the judge he'd never seen? Where was the high court he had never reached? He raised both hands and spread out all his fingers.
But the hands of one of the gentleman were laid on K.'s throat, while the other pushed the knife deep into his heart and twisted it there, twice. As his eyesight failed, K. saw the two gentlemen cheek by cheek, close in front of his face, watching the result. 'Like a dog!' he
said, it was as if the shame of it should outlive him."
(some interminably long post with little to no analysis or relevance to the question presented)
Fine. You want a president with no limits on his power? Move to Cuba. Me, Medis, and the Founding Fathers like it here just fine.
Actually what do you suppose was the intention of the April 1986 US Bombing of Tripoli, etc.? The F111 "smart bombing" of Moammar Ghadafi palaces and desert "hide-a-way" camp wasn't merely to send him a message.
Not if the Park Service Police were in charge of the investigation. Actually it depends on when the crime was committed. If during his term as President, and if there were probably cause and sufficient evidence, then the President could be guilty of a "high crime", and subject to impeachment. If the Congress decides to "impeach", the Senate would hear the case, with Chief Justice of the Supremes presiding. If impeached, possible criminal charges could be brought against.
Are you saying you don't know the difference between the dangers of speech and the dangers of almost unlimited executive authority? Seriously?
Considering this president, among many others, has given me no reason to believe a word that comes out of his mouth, I find it hard to believe that "Nations Security" is at stake whenever he says it is.
- Josh
(1) FISA only prohibits electornic surveillance if it is not "authorized by statute" 15 USC 1809
(2) The AUMF authorizes the president to wage war
Therefore the electronic surveillance of Al Qaeda and those linked to Al Qaeda is authorized by statute.
The place where there are arguments, it seems to me are:
(1) Is the AUMF ( a joint resolution) a statute for this purpose?
(2) If so, is an authorization to use force an authorization to use electronic surveillance.
The first objection seems weak to me. That it is a joint resolution rather than statute seems to be the result of historical precedent, and the resolution itself states that it is statutory authorization for purposes of the War Resolution Act.
The second is more debatable. I disagree with Prof. Kerr on this point. SIGINT and COMINT, the military acronyms for Signals Intelligence and Communications Intelligence are accepted parts of war. They have had important, possibly decisive, effects on campaigns,e.g. Battle of Midway (interception and decoding of Japanese radio signals allowed Nimitz to concentrate US assets against main Japanese effort), Battle of the North Atlantic (interception, HF/DF and decoding of German U-boat signals allowed detouring of convoys around U-boats and sinking of them), Chancellorsville ( Lee's orders for the next 4 days of Confederate movements, not decisive because of the ineptness of Union command).
I do not regard it as material whether the communications intercepted were by U.S. persons, or were intercepted inside or outside the US, whether an emergency authorization is possible, etc. . Those are considerations under FISA, and if there is another authorizing statute, FISA is, by its own terms, irrelevant. What is relevant is whether the actions fairly fit within the general authorization to wage war. They seem to do so.
Note also that under this analysis, a claim that Article II independently gives the President authority to wiretap is not necessary.
I think the precedent of Jones v. Clinton suggests that the President could be prosecuted for acts committed before he took office, but might not be prosecutable for acts committed while in office until and unless he were removed from office.
There are at least two problems with that argument. One is the problem I identified above--FISA and the 2001 AUMF are not the only relevant statutes. 18 USC 2511(2)(f) also provides that Title 18 and FISA are the "exclusive means" by which such surveillance can be conducted. So, you need a third question:
(3) Did the 2001 AUMF implicitly repeal the "exclusive means" provision of 18 USC 2511(2)(f)?
But I also think there is another problem with your line of argument. O'Connor's opinion in Hamdi was a typical O'Connor opinion--it was expressly dependent on the facts of the case. In particular, O'Connor wrote:
"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. . . . 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."
So, the "circumstances" mattered in Hamdi. Accordingly, I don't think you can dismiss the circumstances here--who was communicating, the form of the intercept, whether it was inside or outside the US, whether emergency authorization is possible, and so on--because Hamdi specifically depended on circumstances.
Of course, I agree that merely because FISA treats those circumstances in a certain way, does not necessarily mean that the Court would treat them in the same way. But it is worth remembering that this is an issue of statutory construction, and so two things could be noted about FISA.
First, by its express terms, FISA is intended to deal with the problem of US persons acting as foreign agents and the potential threat of actual attacks, sabotage, or terrorism. So if the Court is looking for a definition of what Congress would mean by "necessary and appropriate force" in such circumstances, FISA itself supplies such an answer.
Second, as members of Congress are noting, FISA itself was amended as part of the USA-PATRIOT Act, which was passed after the 2001 AUMF. If the Congress believed that the 2001 AUMF actually suspended FISA, that would be a rather odd thing to do. So, FISA as amended might reasonably be seen as the latest word from Congress on what is "necessary and appropriate" in the relevant circumstances.
So, I think this argument is in a lot of trouble. Unlike in Hamdi, there is another statute with actual limiting language--18 USC 2511. And also unlike in Hamdi, there is already a specific statute explaining what Congress believes is "necessary and appropriate" in these circumstances--FISA. And finally, by amending FISA in the USA-PATRIOT Act, FISA becomes the latest word--after the 2001 AUMF--from Congress on what is "necessary and appropriate" in these circumstances.
In light of all that, I would not be confident that the Court would be willing to interpret the 2001 AUMF as suspending FISA.
You raise good points.
The critical provision is 18 USC 2511 2(e):
"(e) Notwithstanding any other provision of this title or section 705 or 706 of the Communications Act of 1934, it shall not be unlawful for an officer, employee, or agent of the United States in the normal course of his official duty to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as authorized by that Act. "
This is electronic surveillance as "defined" by FISA. The key question involves whether it is "authorized by that Act". Consider the following provision of FISA:
"(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or"
Does that provsion mean that if a person is "authorized by (non-FISA) statute" he is also "authorized by" FISA" by virtue of FISA's exception?
In other words, assume the existence of a fictitious statute, that says "in cases of international dog nabbing, the FBI may use wiretaps without court approval". There would be no violation of FISA because our dog nabbing statute authorizes the wiretap, and FISA says statutorily authorized wiretaps are OK. Would this be legitimate under 2511 because it then would be a wiretap authorized by FISA? If the answer is yes, then the answer to the administration's argument would also be yes.
I think that might be a close question. I have not done any research to see what "authorized by" means in other instances of its use, though it strikes me that there likely is case law.
If one's analysis gets past that, FISA becomes thoroughly irrelevant. Was FISA amended after September 11th? Does it deal with sabotage? -- who cares because the only pertinent piece of FISA is that part which says "it's OK if otherwise authorized by statute". From here on the anlysis does not turn on FISA, it turns on that authorizing statute, AUMF.
I agree with that circumstances matter in regard to Hamdi and AUMF, but I think the key question there is simply "is this a part of waging war?". Perhaps my outlook is different, but the answer seems obvious to me. Of course SIGINT is part of war, and so are these intercepts so long as the intercepts are linked to the enemy --Al Qaeda and its ilk-- in some way.
I actually think 2511(2)(f), not (e), is the most important subsection. 2511(2)(f) provides that "[the] 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."
I don't think that is ambiguous. Regardless of how one interprets 1809, I don't think one can say that the procedures defined in an executive order citing the 2001 AUMF are "[the] procedures in . . . the Foreign Intelligence Surveillance Act of 1978." In other words, even if "as authorized" by FISA was ambiguous, the more specific reference to the "procedures in" FISA makes the limitation of 18 USC 2511(2)(f) quite clear.
Incidentally, I'm not sure I think the (2)(e) argument is close either. To think that this safe harbor provision applies to people following the executive order, one would have to conclude that 1809 "authorized" the executive order. But 1809 simply makes it a crime to conduct surveillance without statutory authorization. So, I don't see how one can interpret 1809 as providing authorization for any surveillance, simply because it does not make such surveillance a crime under FISA only on the condition that it was authorized by some other statute. Rather, the statutory authority comes from the 2001 AUMF, and while that may (or may not) be enough to satisfy 1809, that does not mean it is enough to satisfy 2511(2)(e).
Finally, I quoted at length from Hamdi because I wanted to emphasize that this is indeed a statutory interpretation problem. So, the exact question is not whether this surveillance was part of war in some general sense. Rather, the exact question is whether the precise language in the 2001 AUMF authorized this surveillance.
Specifically, Congress limited its authorization in the 2001 AUMF to "necessary and appropriate" force. And my point was that unlike in Hamdi, Congress has actually spoken directly on what sort of surveillance is "necessary and appropriate" in these circumstances--that is what they did in FISA. And they did so both before and after the 2001 AUMF (since they amended FISA in the USA-PATRIOT Act).
So, if the Court is interpreting the 2001 AUMF, I think it is likely they will not just consult their own intuition about what might be necessary and appropriate when it comes to surveillance during war. Rather, I think they will reasonably defer to Congress on this subject, and the latest word from Congress is contained in FISA as amended by the USA-PATRIOT Act.
Admittedly, a lot of us are relying on the descriptions in newspaper articles and the fact that the Administration has not really contested those descriptions, nor actually argued that all of the surveillance was authorized by FISA. And that does fall short of an actual authoritative description ... although I do think it is telling that the Administration just isn't making such claims.
In fact, given what VP Cheney in particular has said, it seems to me like there may have been a deliberate decision to go outside the bounds of FISA precisely in order to set a precedent expanding Presidential power. In other words, they are not making a FISA argument precisely because they wanted to be in a position to argue that FISA could not limit them, and so deliberately went outside of the FISA limits.
Certainly this could be a power grab attempt, and it would definitely NOT be unprecedented in light of recent Presidential history. (See posts relating to WJC above). My point is only that until the actual facts are known, and it is quite possible they never shall be public, this is all a planned 'tempest in a teapot' designed to further the notion that Democrats are weak and indecisive on National Security. I think we will find, that while perhaps debatable, the actions of the executive were not prosecutable, and therefore the Democrats will lose face....Just mho.
You could be right. Still, I actually think Cheney, at least, really means it when he complains about the developments following Watergate, of which FISA is arguably a part. And I think he also really means it when he argues for the need to have The Strong Man form of government in this dangerous world of ours. And so while this might just be a political ploy, it could also be an "honest" attempt to grab power (or, in Cheney's mind, an honest attempt to "grab back" the power taken away after Watergate).
Strong point, but 2511(f) regardless of the fact that other sections of FISA were modified later, predates AUMF. Under normal rules of statutory interpretation if Staute 1 says "this shall be the only way" and later enacted Statute 2 says "this is a way", Statute 2 governs.
But the later amendment of other sections is troubling. So is the 15 day hostility provision in FISA.
I agree that if the 2001 AUMF explicitly provided authority to conduct this surveillance without following FISA procedures, it would certainly trump 18 USC 2511(2)(f), whether the 2001 AUMF explicitly mentioned that provision or not.
But this is a more complicated case, because the specific question is whether the 2001 AUMF "implicitly" repealed this provision in 18 USC 2511, since the 2001 AUMF does not explicitly refer to surveillance. In other words, it is possible to read the 2001 AUMF as being consistent with both FISA and 18 USC 2511(2)(f), simply by construing "necessary and appropriate" in light of FISA and 18 USC 2511(2)(f).
And the usual rule in such cases is to allow the more specific prior statutes to continue to control without an explicit repeal in the subsequent statute--again, not necessarily "explicit" in the sense that the subsequent statute names the prior statutes, but "explicit" in the sense that the subsequent statute directly deals with the substance of the prior statutes.
Of course, as some have pointed out, such "canons of construction" are not binding in extraordinary circumstances. Still, the O'Connor opinion in Hamdi does not seem to treat this as an extraordinary circumstance. Rather, it treats the problem of interpreting the 2001 AUMF as just another statutory interpretation problem.
Anyway, to summarize, I'm certainly not sure how this would all play out. But at the least, there is a lot more going against the government in this case than was going on in Hamdi.
There was "tither" in all those other cases as well. But if your point is that all Presidents tend to argue for maximizing their own powers and minimizing the restraints on their own powers, then I agree--it is a systematic problem.
Incidentally, you might want to add something like, say, the Steel Seizures case and Watergate to your list.
The more I ponder this the more convinced I am that the key question is "are we at war" -- which of course is a political question.
If we cast the issue in military terms, "must SIGINT of an enemy force comply with wiretapping statutes" the answer is as obvious as whether Sgt. Bloss should have obtained a warrant before opening Lee's famous Order 191 discovered by union troops before the battle of Chancellorsville. The current kerfuffle is like arguing that Bush should have filed an Environmental Impact Statement before the invasion, or that close air support violates FAA regulations on altitude above an urban area.
On the other hand, if we cast the issue in purely peacetime law enforcment terms, what the administration is doing is wrong. Only the constitutional argument remains and that it seems to me, has the weakness of "who decides".
The reason why a declaration of war is desirable is because it is a clear cut statement of whether we are in condition A or condition B. The AUMF, which is a declaration of war for all save international treaty invoking purposes, should have settled that. I am not amenable to "but that was 4 years ago and things look better now" as an argument, because I don't think war making powers should ebb and flow with the ebb and flow of a war.
However, I do understand that many people do not believe that we are, or should be, at war and that makes a complicated political situation. And, in the end, this is probably a political, not a legal question.
Would it be illegal for the president to direct troops or other federal agents to go into a house in Anytown, USA, forcibly remove American citizen John Q. Public, take him to the town square, and hang him? What if the president signed an order saying that "I have determined that John Q. Public is an agent of those responsible for the 9-11 attacks, and that Mr. Public's continued survival is a threat to the security of the United States"?
If one believes that the AUMF plus article II and/or "inherent powers" supersedes federal statutes and the limitations of the Fourth or Fifth Amendment, then the actions I described above would have to be considered legal, wouldn't they? Is there any other authority that would make the President's actions illegal?
Sooo? Usurping power power is OK...If it's for the'right' reason?
Who said all of that was "OK"?
John,
But the precise problem is that FISA is not part of the the ordinary law enforcement scheme--that is detailed in Title 18. Rather, by its own terms, FISA is intended to deal with the surveillance of agents of foreign powers for the purpose of gathering foreing intelligence information, which specifically includes in its definition information relating to actual attacks on the US, sabotage, and terrorism.
So, I don't think applying FISA to the NSA is like applying FAA regulations respecting civilian air traffic to the Air Force. Rather, it would be like applying the UCMJ to the armed forces--because, just like the UCMJ and the armed forces, FISA was specifically intended to regulate the NSA. Indeed, as amended by the USA-PATRIOT Act, FISA was specifically intended to regulate the NSA in just these circumstances.
That may be true, but there's also a sizable contingent who confuse their own belief --that we should not be at war-- with reality.
As of this date Congress, the President, and the Supreme Court (minimum 7-to-2 in Hamdi v Rumsfeld) believe war is Constitutionally declared.*Louis Fisher is a Senior specialist in the separation of powers with the Congressional Research Service of the Library of the Congress; author of many books on separation of powers, including Nazi Saboteurs on Trial: A Military Tribunal and American Law, Constitutional Conflicts Between Congress and the President, Presidential War Power, and Military Tribunals and Presidential Power
May 2005 Harvard Law Review carried Curtis A. Bradley and Jack L. Goldsmith's Congressional Authorization and the War on Terrorism explaining (in legalese) the war declaration, and in June's edition Ryan Goodman and Derek Jinks nibble at some fringes of authorizations, but accept the declaration of war.
It's amazing, almost sad, how rabid partisanship can lead people to the delusional denial of reality, when it's so apparent to every authority involved.
Are you saying you don't know that Speech can deprive someone of their "Life, Liberty, and Pursuit of Happiness (Property)" as surely, an as "almost unlimited executive authority"?
One of the most important limits on Presidential power is the ballot. If you don't trust a President, don't vote for him. Fortunately a majority of voters didn't agree with you in 2004. Get over it!
Of course, I couched my assertion regarding the Commander-in-Chief's ability to take the authority necessary only to the extent of the requirements of National Security. Have you any idea why "governments are instituted among men"? No, the Kafkaesque "wet dream" is your irrational and unsubstantiated paranoia. As for the meaning of "Kafkaesque", well you have been wrong on many other matters, now, haven't you?
If you don't like the meaning, argue with The American Heritage® Dictionary of the English Language not me. Of course Kafka's works were fantasies, much like your idea of how US government is suppose to function.
Again, I never said there was "no limit" to Presidential Power. Merely that as Commander-in-Chief, the President can assert whatever authority he requires in order to insure the Nation's Security. I know it is a difficult concept for some of you, however, those are the facts. Reason is that the legislative branch of our government is "deliberative and rigid", while executive is "agile and responsive". To be an effective Commander-in-Chief one needs to be "agile and responsive". History and the Supremes bare this out. Had President Lincoln not taken the authority he did after his inauguration, this Nation would have failed. Thank God Lincoln understood the duties of his office. Obviously you are clueless as to why "governments are instituted among men". Maybe a quotation on point from one of key Framers of the Constitution and authors of the Federalists Papers may give you a clue:
I believe Hamilton had a much better handle on Presidential Power with regards to National Security than you obviously do!
Perhaps not drop a "smart bomb", but certainly fill a structure containing nearly 100 people, mostly innocent women and children with an inflamable chemical and ignite it with pyrotechnical ordinance murdering some 82 of them in Waco, TX. Of coure, having the authority is not quite the same as having the "right".
As I recall, the Feds dutifully obtained a court issued "search warrant" as a pretext for those murders. I am amazed how the issuance of a "search warrant" equates to a pacifier of "civil liberty" concerns for so many. As was demonstrated in the Congressional hearings on the incident, the Feds lied, under oath, on the "warrant application" in order to get the "no knock - focible entry" warrant that insured the wrongful death of so many, including Federal agents. Yet, no one was punished. No one was sanctioned. And no one had to pay the "butcher's bill", and the dead.
Personally, I would prefer less "prior restraint" and more and tougher sanction for abuse of Executive Power.
I am not sure other than it would be problematical. As a sitting President, he would have the power of Presidential pardon, which makes adjuication somewhat difficult. Hence impreachment first!
Again, he possibly could, but to what avail, unless he shed of his power to pardon through impeachment.
You have seemed to upset the apple cart by quoting the Constitution on a regular basis. You are a bad boy, and soon to be spanked.
"Don't you just love it when a plan comes together?
A better take on the real issues at stake might be "Dead American" vs. "Terrorist Privacy". Personally, I believe there is no contest. BTW, have you any idea why "governments are instituted among men"?
Then how do you explain this?
Where's the angst?
Geee! I do hate it when a plan comes together.
BTW The signer of the above document is 'the smartest man ever, and, has a degree in law,and passed the bar...OOPS, guess that ability to practice law was revoked for some reason. Not sure why the Bar did that?
Quoting the Constitution and the Founding Fathers is almost a bad as quoting Scripture.
Facts are terrible things!
Once accepted, the reality of the War on Terror makes this entire phoney "civil liberties" brouhaha appear to be exactly what it is - a partisan ploy to wound the President and his efforts to protect the truly important rights of the American people. When we start stacking up "the People's Rights", the most important are the "unalienable" human rights of "Life, Liberty, and the Pursuit of Happiness (Property)", the security of which is why "goverments are instituted among men". These are the very rights the President's "proactive strategy" against terrorists is designed to protect by disrupting terrorist networks and "sleeper cells" in our towns and cities. When the other "civil rights" are added, the so-called "right of privacy", which is suppose to be "license" to permit resident terrorists un-impaired "CCC" ("Command, Control, and Communications") for their nefarious deeds if one end of the ecom is from within the US and includes a "so-called" US Person. Requiring a court ordered warrant to read and disrupt these communications is rather low on the rights "priority list" in my book. Exactly what makes any communications between known al Qaeda resources overseas and any US resident sacrosanct totally alludes me. First, the plain language of the 4th Amendment does not even address speech or communications (not even intransit correspondnce such as mail), to wit:
It was obvious that the President would be held responsible for any failures, on his watch, to protect the "public safety". This concept of Presidential responsibility can be seen in Tucker's Blackstone, to wit:
It is just as obvious that the framers expected the President in the time of war, invasion, or insurrection to take the initative by exercising whatever authority might be necessary to discharge his prime duty of securing the "public safety". It is also plain that should the President abuse his authority (i.e. "whatever may be done amiss"), that he should be held accountable (i.e. "is likewise chargeable upon him") afterwards.
It was for this reason that Bush Administration was made to accept the "lion's share" of the blame for "9/11". That facts that Congress gutted and emasculated the US "intelligence apparatus", or that the prior Administration "built walls" between the police and the intelligence gathering functions, was no excuse for the tragic events that occurred on the President Bush's watch.
Unfortunately, when Executive Branch abuses occur in the name of "public safety", as what happened in Waco, TX in 1993 on President Clinton's watch, the requisite accountability, with sanctions to fit the crime were not meted out. In fact it appeared a successful cover-up was perpetrated, with evidence destroyed and "stonewalling". In my estimation, this is attributed to the lack of Mainstream Media interest in demanding accountability from the Clinton Administration.
I submit that the best system would be to not "handcuff" the President from properly protecting the "public safety" by limiting "arbitary prior restraint", but also insuring accountability, with commensurate sanctions for any willful abuse or violation of trust.
Seems that quoting real facts and real examples of 'The Clinton Administration' has dried up the parsing of arcane leagleese, and centered the debate and what the real issues are. No one cares to debate the issues, just parse the words of some bill. Yey, shipping a Cuban boy back to Cuba? Why? Legal authority? Torching women and children in Waco? Murduring a mother holding an infant in her arms, while standing at the front door of her house? Yeh! Great! Who is on a power grab? You all got my examples. I'll give you one more. 3000+ Americans murdered by some nebulus non organization. BTW The Constitution charges the federal government with protecting you, and me from being killed by foreign invaders. Not killing a mother holding her infant. Not torching women and children for no reason. not shipping a kid back to a country that has not left the 50's and imprisons thousands for not toeing the line. If in fact y'all think we should not be involved in foreign affairs, fine with me. But, that would mean all foreign aide. Hell, Germany don't like us. We will just remove our military bases from Germany. 'course the shrill squeal you hear would be from the left accusing the US of acting unilaterly, (not to mention the huge influx of US $'s to Germany that would evoporate). Please, Legal eagles stop parsing the word and focus on the intent.
Now, I have no specific knowledge of the program being discussed, other than what I have read in the papers. However, I can make a couple of 'informed guesses', since at one time I was in the SIGINT business.
First, and perhaps most importantly, I don't believe these interceptions (don't call them wiretaps) were made on US soil. To my thinking, they were made by a partner of the US. One hypothetical (gleaned from knowledge gained by reading The Puzzle Palace, so I'm not giving anything away here) would be that the President tasks the NSA, who then hands it off to the GCHQ (the UK's version of the NSA). There is no restriction on the GCHQ on monitoring US Persons, to the best of my knowledge. The results are then given back to the NSA, sidestepping the need to follow FISA.
Another hypothetical is that this is a monitoring of known or suspected foreign terrorists on foreign soil. I don't think FISA would require that we get a warrant to monitor if the foreign target contacts a person in the United States, as that is incidental to the target. My reading of it tells me that you can't intercept without a warrant where there is a 'substantial likelyhood' of intercepting the communications of a 'United States Person'. But who determines that?
Another unknown is whether actual 'United States Persons', as defined in FISA, are being intercepted. As was pointed out in previous comments, none of the 9/11 hijackers would have fallen under the definition of a 'United States Person', thus a warrant to intercept their communications wouldn't have been necessary under FISA. I wonder if this program is something similar?
I think it is particularly unfortunate that the NYT decided to publish this information without knowing enough specifics to decide whether this was in fact a violation of FISA. As it stands, there is no way to know.
Those of us lucky enough to be alive in 30 or 40 years will probably get enough details to decide.
But if the Administration is only conducting surveillance outside the scope of FISA on FISA's own terms, why aren't they making that claim? Why all these claims that the 2001 AUMF and the President's Article II power give him the authority to order this surveillance despite FISA?
Again, I have only seen people in the blogopshere claim that all the surveillance might be legal under FISA. Those in a position to know aren't making that claim.
Well, I'm not really able to say one way or the other.
I can think of a couple reasons the administration might claim coverage under the 2001 AUMF/Article II powers.
First, if the program is indeed limited to non-'United States Persons', revealing that fact publicly warns the very targets of the program that they are possibly being monitored. That would be a bad thing, from the perspective of the administration.
Second, if it is indeed monitoring overseas calls, from an overseas location, of 'United States Persons', even by a separate entity like GCHQ (who obviously are not bound by FISA, and share information with the NSA (see Bamford)), revealing that information is also likely to alert those being targeted.
So the safest thing the administration can do, to preserve the stream of intelligence, is to just claim they have the authority to do it, end of story. Going into specifics can give away too much information.
There is a history of incidents where the knowledge that eavesdropping has occured has caused the targets to change their behavior. The revelation that we were able to listen to, and track the location of Osama Bin Laden via his portable phone being one of the most recent. The British discovering, through their decryption of Naval Enigma signals, that the Germans had broken their BAMS code (used to route convoys worldwide) is a famous example from WWII. They subsequently changed it to a more secure code, cutting the Germans off from that information source.
The history of signals intelligence is full of similar examples.
I'm not saying that this is the reason for the administration to lean on the AUMF/Art. II argument, but it certainly is plausible, given what I know about the history of signals intelligence.
Are you saying you don't know that Speech can deprive someone of their "Life, Liberty, and Pursuit of Happiness (Property)" as surely, an as "almost unlimited executive authority"?
I honestly hope you don't believe that someone can be deprived by of their liberty as easily by private speech as by unlimited executive authority. I can't imagine anyone could honestly believe that.
Considering this president, among many others, has given me no reason to believe a word that comes out of his mouth, I find it hard to believe that "Nations Security" is at stake whenever he says it is.
One of the most important limits on Presidential power is the ballot.
Voting is worthless. You have a better chance of being attacked by flesh-eating bacteria on the way to the polls than having your vote do anything.
- Josh
What about from the "perspective of 'the People' who would be murdered in the next massive terrorist attack" should such "warning" be given to those "sleeper cells" in the US working on such? For example, the NY Transit strike was merely an inconvenience when compared to losing the Brooklyn Bridge during rush hour.
It happens everyday in the case of perjury. For an example, please see citizen William Clinton, rapist. That is unless you believe, as most Democrats seem to, that lying under oath in a civil sexual abse trial is part of some sort of weird "unlimited executive authority"!
Your concept of the "republic" seems to reflect the mindset of those living in the Deep South Slave States, whose unconstitutional secession started a Civil War that lead to the death of over 600,000 Americans.
It is totally amazing how these "so-called civil libertarians" can't find the time to complain about Federal abuse that has cause REAL harm. Elián González's "liberty" didn't mean anything. At Waco it was the innocent victims' fault. The unarmed Vicki Weaver, babe in arms, was such a threat to the concealed and well-armed rogue Federal snipers that she had to die. Apparently changing the "rules of engagement" to "shoot first and ask questions later" does not have import of adjusting the "electronic surveillance rules" to allow obtaining timely and perishable vital "war related" "foreign intelligence" on murderous terrorists in the US. This despite the FACT that the one case lead directly an innocent's death, while there is NO evidence of any REAL harm caused by the other. This isn't even "moral equivalence"! This is insanity!
Perhaps it demostrates how little they think of the "Right to Life". Of course, without life, Liberty and Property Rights are quite moot, and "privacy" has no meaning at all in the grave. Possibly this explains why, in their mind, the mystical "right of privacy" ALWAYS trumps the "right to life" - whether it be on the matter of abortion of the innocent unborn, or the facilitating the murder of "the People" by hindering the Commander-in-Chief in his efforts to carry out his PRIMARY duty to "the People", which is to protect the "public safety". Amazing!
President Andrew Jackson (a former Tennessee Supreme Court Justice) thought was anytime it made a decision with which he didn't agree.
In the Worcester v. Georgia (31 U.S. 515 - 1832) Case, the United States Supreme Court under Chief Justice John Marshall held that Cherokee Indians were entitled to federal protection from the actions of state governments. This reversed their 1831 decision Cherokee Nation v. Georgia, which really upset Jackson.
In reaction to this decision, President Jackson has often been quoted as defying the Supreme Court with the words: "John Marshall has made his decision; now let him enforce it!". As the Supremes do not have the requisite "executive" authority, enforcing any of its decisions to which the President objects might be impossible unless the President is committed to the rule of law.