Thanks for all your work on this Orin. Notice that the DOJ does not even intimate that the surveillance program is consistent with FISA (except by virtue of the AUMF argument). I know you think they might have national-security reasons for not doing so, but don't you think the debate should focus on the arguments the administration is making, rather than assuming they might have other arguments they are not making?

Anderson twists the DOJ letter's wording to say "We couldn't ask Congress to legalize what we did...."

Congress, specifically those in Congress delegated responsible to their fellows for intelligence matters, is already aware of the the surveillance methods. It is their (Congressional Intelligence Committee) call whether to suggest changes to any law, not the President's. They have not done so.

Partisanship hate is ugly. Partisanship that could reduce national security is dangerous, and needs to be rooted out like any other deliberate attempt to reduce national security.

subpatre: Anderson twists the DOJ letter's wording to say "We couldn't ask Congress to legalize what we did...."

Here is the un-twisted wording:

In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence
limitations and capabilities.

Shall I get you carbons for your written apology, subpatre?

Congress was not aware of this program. Four or so members were told of it &ordered to keep quiet. Thus, the body which enacted FISA was not apprised of what was being done, or given the opportunity to approve or reject the program.

Too much partisanship? Close thy NATIONAL REVIEW; open thy FEDERALIST PAPERS. We have had too *little* partisanship, or else (for ex.) Sen. Rockefeller would've taken his concerns to the full Senate, not handwritten a letter and kept it locked up for CYA purposes.

A vigorous Democratic opposition, and a really "partisan" media, would help keep the Republican-controlled government on its toes. We are just starting to see a bit of that, after 3+ years of being sadly lacking in partisanship.

(Leaving aside the revoltingly partisan nature of this Administration, as too obvious to anyone with eyes.)

Okay, just *one* little example of "revoltingly partisan nature", from yesterday's White House briefing:

Q You suggested that those who are seeking an extension are putting politics above security. That now includes eight Republicans. Are you including them in that accusation?

MR. McCLELLAN: No, it's the Senate Democrats.

Oh. That explains it all.

Alas, dk35, not in so many words, though to those of us used to reading appellate opinions, that certainly came through loud &clear.

Back to "invective," subpatre; you falsely accused me of "twisting" the DOJ letter.

Moving right along, you said: The members were told of the surveillance. They were not "ordered to keep quiet", nor can they be. The suggestion is ridiculous.... and contrived.

Here's Sen. Rockefeller on his letter to Cheney:

The limited members who were told of the program were prohibited by the Administration from sharing any information about it with our colleagues, including other members of the Intelligence Committees.

So, we're not supposed to be "partisan," but a Democratic Senator's report that he was told to keep quiet is "ridiculous ... and contrived."

Apparently I am not trying to make the U.S. a better place by calling b.s. where I see it? I guess we have different concepts of the Good, subpatre ... it's like a paragraph out of Isaiah Berlin or something.

Right on, Unenumerated.

When you think about it, the "Republicans In Name Only" are those who want to sacrifice the Bill of Rights on the altar of National Security. That's how every dictatorship in the book justifies its tyrannies ... "national security." Conservatives, back when they existed, understood this. But power corrupts, etc.

Sorry, Orin, I don't buy it. This administration loves playing the "We wish we could tell you why this is so vital, but we can't so just trust us" card.* Luttig's anger notwithstanding, they'd play it if they had it.

*Especially because it leads to the "if you suggest we're not being 100% truthful about what we're not telling you then you're sending the wrong message to the troops" card.

Facts are stubborn things, and there are two facts that have not been refuted:

1. Every President in the powtwar era has asserted a right of warrantless electronic surveilance for foreign intelligence purposes.

2. No court has ever ruled (that they don't have that authority, despite plenty of opportunity to do so.

In fact the Courts have gone out of their way to make sure that the Presidents inherent authority to counter external threats has stayed intact.

I've heard a lot of blathering here about why AUMF doesn't do what the President claims, why FISA trumps the constitution. There has been an awful lot of construing of statutes, but the one thing I haven't heard from anyone (Orin included) is a single decision from any court that says the President needs a warrant for foreign intelligence gathering, or for that matter contradicts anything in the DOJ memo. On the other hand there have been quite a few citations from both SCOTUS and FISA court of review that say pretty much the same thing as the DOJ memo.

Educate me here.

First, the DOJ letter certainly does not strike me as weak, but rather a fairly normal way to read statutes. Certainly, no one on this thread has attempted to differ with the axioms of statutory construction applied in the letter.

Second, the fourth amendment argument is facially skeletal, and I think for a simple reason: administration critics are not arguing that FISA is unconstitutional, nor are they arguing that electronic communications that at involve, in part, communications from or to a foreign country are somehow inherently protected-- absent FISA-- from warrantless searches, at least as far as I have seen. (I take it that readers of this blog are sophisticated enough to know that warrantless searches are unconstitutional only if they are unreasonable.) In other words, the critics have not made a Constitutional argument that is deserving of more of a response. If FISA can be construed together with the AUMF to provide a colorable basis for the administrations position, why debate the 4th Amendment? Just assume that both FISA and the AUMF are constitutional, that they can be construed in harmony, and move on.

Third, the practical point that the letter rests on, authorization to use military force implies a power (expectation?) to gather intelligence, seems rather unremarkable. Again, that seems like something that should be uncontroversial, unless it is because Bush did it.

What is emerging is not a classic wiretap program, but some kind of signals gathering and analysis program that surveys a massive number of circuits and isolates a relative few for further analysis. That point of analysis, as I have been given to understand some of these techniques, is likely the first time a human being ever hears the communication or sees the email, and it might be well after the 72 hour period provided by FISA. Hardly grounds for the fear of grandiose claims of immunity from Congressional or judicial oversight that the critics have used to keep the pot boiling, and claims that the adminstration is in fact not making. Calm down.

How would one draft a statute that provides oversight to an ongoing "fast and agile" surveillance operation that involves automatic filtering of a huge volume of non-suspect communications looking for those of interest?

Anderson, I don't know about blathering but assuredly uneducated. Here is Jimmy Carter in 1979 (post FISA) asserting a right to Warrantless surveillence:

1-101. 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, but only if the Attorney General makes the certifications required by that Section.

And in the Clinton Administration:

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," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."

And Reagan:

Executive Order 12333, signed by Ronald Reagan in 1981, provides for such warrantless searches directed against "a foreign power or an agent of a foreign power."

Both are cited here.


Not to mentions the Op-ed from Clinton's Associate Attorney General John Schmidt:

President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

Whether or not the subject of the warrentless surveillence is a U.S. citizen is irrelevent if they are agents of, or associated with a foreign power. No where in these previous presidential assertions (one of which involved Aldrich Ames) was there any caveat about no US citizens being involved.

And you may not like the "Silberman Dicta" (or Keith, or others) but you have yet to quote a single decision supporting your own position.

One defense of the President I've read argues that FISA is an unconstitutional interference with the President's Art. II powers.

Who would have standing to assert such a theory? Given the President's obligation to faithfully uphold the laws, it's hard to believe that the DOJ could legitimately take that position.

Any help from the cognoscenti? May the DOJ argue that a statute is unconstitutional? Who's to stop it if it does?

Daniellee,

Of course, one also has to include 18 USC 2511 in the "harmonizing" project, and the way that the letter proposes "harmonizing" 18 USC 2511 makes no sense in light of the plain language of that statute and 50 USC 1809. Additionally, even considering just FISA, it is difficult to harmonize the letter's proposed reading of the 2001 AUMF with the emergency and declaration of war provisions in FISA (as opposed to just 1809). Finally, it is difficult to harmonize the letter's proposed reading of the 2001 AUMF with the USA-PATRIOT Act, which amended FISA for the purposes of dealing with the precise problems the Administration is citing.

But there is another easy way to "harmonize" all of the 2001 AUMF, 18 USC 2511, and FISA as amended by the USA-PATRIOT Act. That would be to simply interpret the "necessary and appropriate" clause in the 2001 AUMF as being consistent with the statutory structure laid out in 18 USC 2511 and FISA as amended.

Of course, there is one notable problem with this obvious way of harmonizing all these statutes: apparently it would mean the President was ordering people to do something illegal.

Andrew,

The problem is that 1809 does not by its plain language incorporate anything. It doesn't even say that "surveillance can be done as authorized by statute". Rather, it merely provides that surveillance authorized by some other statute is not a crime under FISA.

Going from FISA not making something a crime to saying that any procedures FISA does not make criminal are actually FISA procedures is really a legal non sequitur.

Just for everyone's information, this is the clause the letter is claiming turns any procedure authorized by law into a FISA procedure:

"(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."

I note that 18 USC 2511 distinguishes between procedures in FISA and procedures in Title 18:

"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."

I guess whoever drafted this language somehow overlooked that the procedures in Title 18 were already procedures in FISA because of 1809.

Andrew,

I'm not sure I even understand that claim. A statute can authorize something without providing any procedures someone needs to follow. Alternatively, a statute can authorize nothing on its own but provide procedures someone needs to follow in order to exercise powers authorized by other statutes.

In any event, that claim is irrelevant because 1809 does not "authorize" anything.

Andrew,

No, I am not saying #1. What I am saying is that 1809 does not "authorize" anything. Rather, 1809 defines a crime: conducting electronic surveillance without statutory authorization. But 1809 does not itself authorize electronic surveillance. Indeed, as far as 1809 is concerned, at any given time there could be no statutes authorizing electronic surveillance, or hundreds of such statutes, or anything in between.

and I actually think this point is completely obvious. Indeed, the plain language of 1809 assumes that authorization must occur elsewhere, and that 1809 itself does not provide authorization.

Can someone explain to me how the NSA's surveillance program fits the definition of "electronic surveillance" in Section 1801(f) of FISA? As I read it, even in peacetime, to fall within the FISA, the commuication must be acquired in the United States and/or under circumstances in which a warrant would be required for law enforcement purposes. The Supreme Court has ruled that warrantless searches are constitutional in the context of border crossings, and it doesn't seem implausable to me to treat international telephone calls or e-mails as a type of border crossing. So, intercepting international calls outside of the US doesn't constitute "electronic sureillance," even if a US citizen is on one end of the line. In short, regardless of whether we are at war, the NSA program has always been legal. How am I wrong?

Kaz, the warrantless search of Ames was legal under FISA. Only later was the statute amended to extend to such physical searches.

I suppose there is an Article II argument that FISA is unconstitutional, though it seems weak under Youngstown. But even the Administration is not making that currently. And do you have any evidence that is textual or drawn from original intent to support the Article II argument?

To begin with the Sealed case never once held that the President has the inherent authority to conduct warrantless surveillance. It merely, to use its phrase, "assumed" this to be the case and did so by relying on a Fourth Circuit opinion that addressed the topic pre-FISA. Dicta, which is what assuming something to be the case is, is neither a holding nor binding on any court, even the FISA Court of Review. Thus, to extrapolate from an assumption to a binding holding from a court is completly mistaken.

What is interesting, and which no one discusses, is what the Fourth Circuit itself said about warrantless surveillance for foriegn info. (By the way the Supreme Court in Keith held that the President does not have the inherent authority to conduct warrantless surveillance for purposes of domesitic info. — given that the NYT has reported that some of the intercepts by the NSA were purely domestic in nature this raises the spectre that there may have been a violation of the Supreme Court's holding in Keith in how this program was conducted; I take no sides on that question because it would require determining when something that begins as a search for foreign info turns into one for domestic info).

Back to the Fourth Circuit opinion. First that opinion did hold that the President does not have the inherent power to conduct warrantless surveillance once the purpose for that surveillance is to build a criminal case against the individual but does so with respect to simply collecting foriegn info.. This raises the question of whether the info collected under the President's program was used in criminal proceedings. If so, then he exceeded his constutional powers per the Fourth Circuit. (The Sealed Case, rightfully I believe, found this distinction between the purpose for the collection to be untenable thus in effect rejecting the Fourth Circuit's constitutional analysis concerning what limits, if any, do exist againt the executive branch's warrantless surveillance of Americans for the purpose of collecting foreign info.).

Here's the kicker, in the course of making this finding the Fourth Circuit questioned even its own holding in light of the recent passage of FISA. It noted that FISA's ability to impose a warrant-requirement of sorts on the collection of foreign info. vitated its own belief that no such warrant could be imposed because of the complexity of the matters and the judiciary's inexperience in dealing with them. Here is the money quote:

"The elaborate structure of the statute demonstrates that the political branches need great flexibility to reach the compromises and formulate the standards which will govern foreign intelligence surveillance. Thus, the Act teaches that it would be unwise for the judiciary . . . to attempt to enunciate an equally elaborate structure for core foreign intelligence surveillance under the guise of a constitutional decision."

This strongly suggests to me that the Fourth Circuit felt that the extent of Presidential powers in the collection of foreign information was co-terminous with the limits placed in FISA. That is, if you violate FISA you also exceed the scope of your powers.

Philamark, I assume that some international calls were intercepted inside the U.S. and therefore that qualifies as "electronic surveillance."

Andrew:

Why would you presume the NSA would deliberately violate the FISA by intercepting calls inside the US, when they could just as easily do it outside the country, and stay legal? By the way, Powerline blog has an excellent analysis of the legality of the NSA program that you would find interesting.

I have read the DOJ's letter and I have to agree with Medis that is legally bogus. As I read the letter, the Congressional resolution authorizing force passed in the days after 9/11 authorizes warrantless surveillance of US citizens even though the resolution itself simply allowed the President to use all necessary "force." Far be for me to quibble with such esteemed lawyers, but surveillance is not force just look up the word's meaning in the dictionary. But the letter then goes on to opine that FISA -- in setting forth the elements of a crime -- somehow also makes an exception to its requirements "except as authorized by statute" the statute in our case being the Congressional resolution. As any lawyer knows the use of the phrase "except as authorized by statute" is commonly used in criminal statute to incorporate the particular statute's provisions into defining the elements of the crime. That is to say when FISA "except as authorized by statute" what it was saying is that it is a crime to engage in surveillance not allowed by the procedures contained in FISA. That's it.

For starters, they've tied their authority directly to the wording of the AUMF.

No, they tied it to past FISC decisions, the Prize Cases, the precedents referenced in the preamble of the AUMF, Hamdi's interpretation of AUMF, and the realities of how the War on Terror is waged. It is erroneous to state that DOJ has sketched a mere textual argument.

Andrew,

I'm not sure you answered this question in the other thread--you were heading off as I recall--but I wanted to get your thoughts (or you can redirect me if you did answer this already).

Hypothetically, suppose a court was trying to interpret the "necessary and appropriate" clause in the 2001 AUMF with respect to surveillance (for the sake of argument, I'm assuming surveillance is force). Where do you think the court should look for a definition of what surveillance is necessary and appropriate within the meaning of the 2001 AUMF?

The obvious reading is that when 2511 refers to procedures in FISA, it means procedures actually in FISA. And when 1809 says it is a crime to conduct surveillance except as authorized by statute, it is defining a crime, not incorporating other statutes into FISA.

Just to avoid bickering down the line, this is a matter of statutory construction. Now, were this a case of statutory construction, and these statutory provisions were being read in isolation, then perhaps what you say would make great sense. But that is not how legal reasonaing works. I can point to many a statutory provision that was obviously intended to be read one way but was misinterpreted by the courts and now means something else. Often that happens in light of a decision interpreting a different statute that for some reason is adjudged, perhaps improperly, to be similar. Securities regulation is rife with these kinds of problems. It happens not only under statutory authority, but also with doctrine under the Contracts Clause and doctrine under the Eleventh Amendment. So simply reading the text of the statutes and construing them in a plausible way consistent with their plain meaning won't get you very far.

That said, the DOJ letter does a good job of dealing with the countervailing arguments that, taken together, outweigh your plain reading of the statutes.

subpatre,

I'm not sure I understand. What AQ would know is that we could conduct surveillance without a warrant for 72 hours, and then continue to conduct surveillance if we got a warrant within 72 hours.

How would using a method of communication for less than 72 hours avoid such surveillance?

subpatre:

Although the rest may be ignorant, Al Qaeda knew it takes a minimum of [some amount of time] to get a warrant

The AG can start a wiretap as soon as it is desired. They then have 72 hours to get a warrant from FISC, so there is no [some amount of time] delay.

§ 1805. Issuance of order
(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.

Medis, you inquire where a court should look for a definition of what unwarranted surveillance is "necessary and appropriate" within the meaning of the 2001 AUMF. Well, the first place is the Fourth Amendment. If the reasonableness standard of that Amendment is violated, then unwarranted surveillance is not "necessary and appropriate."

Other than that, I'd think a court would try to respect the President's own determination about what unwarranted surveillance is required in order to achieve the goal of using "all necessary and appropriate force." However, if a court determines that the President very clearly could have achieved that goal by following all of the FISA procedures, then a court would be obliged to say that the President has violated the statutory scheme set up by FISA as modified by the AUMF. Then the only remaining issue would be whether that scheme is constitutional (i.e. whether it infringes on the President's inherent powers). I think it would be held constitutional.

And there is simply nothing like 18 USC 2511 in Hamdi. So, Hamdi is easily distinguishable on that ground alone.

No, that argument is entirely non-responsive. DOJ's argument, as I said above, is that Hamdi determined the scope of AUMF to be large enough to encompass both 4001 and 2511. You, again, are trying to trim Hamdi down and narrow it to only statutes substantially similar to 4001. Why should the court do that?

And, Kyle dealt with the "surveillance-does-not-equal-force" argument above.

Jack John,

On "force"--I'm actually not sure what a court might say on this subject. Detaining people captured on a battlefield is certainly an easier case than conducting surveillance far from the battlefield. But, you may be right that force is still broad enough to encompass surveillance.

So, since the statutes are different, the outcome could be different.

1. Not if AUMF is broad enough to encompass both statutes. I'm asking you why AUMF isn't broad enough to encompass both statutes, even though they have some textual differences. Rulings, on the day they are handed down, have application greater than simply to the facts of the case before the court. They also reach all similar cases pending or on direct review and affect any new cases brought before the court. You are arguing, years after Hamdi was handed down, that the ruling should now be narrowed to its facts. You are in fact arguing that Hamdi's scope should retroactively be narrowed, which would require overruling it, or as I put it, trimming it.

2. That 4001 dealt with detention makes DOJ's interpretation of Hamdi's breadth more plausible than yours. The civil liberty at issue in the case of detention has more constitutional grounding and historical pedigree than the civil liberty at issue in the case of electronic surveillance. We know for a fact that the word 'liberty' was intended to apply to physical restraint; by contrast, protection from data-mining requires a higher level of generality. If Hamdi encompasses 4001, which deals with detention, it necessarily encompasses 2511, which deals with electronic surveillance, because the civil liberty interest is of less weight. This tracks with Andrew's argument.) Mere textual differences are insufficient, so pointing them out is non-responsive.

if it had the permutations Kyle believes it does then it would be odd that just moments before the resolution was scheduled for a vote the administration would seek to make edits

That is from an op-ed by ex-con Tom Daschle. So we're supposed to believe ex-con Tom Daschle? Why is he the paragon of credibility? And does ex-con Tom Daschle's opinion beat the Hamdi ruling?

Jack John, here's an excerpt from Hamdi:

[W]e conclude that the .... AUMF satisfied §4001(a)'s requirement that a detention be "pursuant to an Act of Congress..."

But suppose 4001(a) had said that a detention must be "pursuant to certain acts of Congress that do not include the AUMF." In that case, the holding of Hamdi would have made no sense. And that is the kind of case Medis argued is present with the NSA controversy.

Jack John,

Another definitional point: I would only say I have "limited a case to its facts" if I claimed it only applies to the facts of that case, and NO other facts. But if I merely distinguish a later case, I am not claiming that NO other cases might be controlled by the first case.

So, the precise issue is why I think one can distinguish 2511(2)(f) from 4001(a).

Your point, I believe, is that the subject matter of the statutes (surveillance versus detention) is not a valid ground for distinguishing them. As I expressed before, I'm actually not sure how that would play out--I could see it going either way.

However, I did not distinguish the statutes on the basis of subject matter. Rather, I distinguished them on the basis of the language--in particular, 2511(2)(f) provides for Title 18 and FISA being the exclusive means for surveillance, whereas 4001(a) allows authorization by any Act of Congress.

Again, I'm not sure why this distinction is unclear. But maybe a hypo would help. Suppose 18 USC XXX provided that "the procedures in 50 USC YYY are the exclusive means by which the government may detain battlefield prisoners." In that case, the Court might have held in Hamdi that the President had to follow the procedures in 50 USC YYY, even though it held that he was authorized to detain battlefield prisoners by the 2001 AUMF.

Of course, there is no 18 USC XXX and 50 USC YYY. But there is an 18 USC 2511 and FISA. Which might make all the difference in this case, as opposed to Hamdi.

an assumption is not a holding as it was not necessary to the case. to cull together assumptions strikes me as a bizzare method of legal reasoning. perhaps a better phrase would be to cull together dicta from prior cases, but again as I explained above the Sealed Case did not even provide dicta but merely assumed. Moreover, you also forget that in the same passage where that court assumed this to be the case it also effectively undercut the very reasoning of a case that it relied upon for making that assumption.

to cull together assumptions strikes me as a bizzare method of legal reasoning.

So is construing an explicit statute contrary to its plain meaning. It happens all the time. It happened just this term. See Lockhart v. United States, or our Contracts Clause jurisprudence, or our Eleventh Amendment jurisprudence, etc.

the precise issue is why I think one can distinguish

No, I have been quite clear. Dsitinguishing gets you nowhere. I accept that the statutes are textually different. The argument is that Hamdi encompassed them both, anyway, at the time Hamdi was decided. Trying to narrow that holding is an implicit overruling.

This has less to do with how to read AUMF than with how to read FISA.

Only if you presume that Hamdi did not encompass 2511 as well as 4001. Why would a court presume that when DOJ is arguing to the contrary? That would not be impartial adjudication.

We are not talking about how the Supreme Court interpreted or misinterpreted the Contracts Clause we are talking about how to construe FISA. It does seem bizarre that as a method of construing a statute we should take into consideration that courts regularly misinterpret statute and then proceed to use this "method" to interpret (or perhaps misinterpret) another one whose meaning is clear on its face.

Jack John,

Of course that part is relevant. Given the language of 18 USC 2511, the 2001 AUMF would have to implicitly repeal 18 USC 2511. So the rules for implied repeal are highly relevant.

Jack John, I'm on your side regarding the bottom line, and I'm also on the side of DOJ's bottom line. I just think that you and they get there via an incorrect path.

Anyway, I did take a look at Lockhart. The statutory provision Scalia was talking about said: "No other provision of law, enacted ... after April 20, 1983, may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section." In other words, Congress was attempting to thwart the will of future congresses, and Scalia was simply pointing out that such a provision is invalid. Scalia was correct; such a provision is no more valid than a provision saying that a statute may never be amended. But I don't see anything comparable happening with Hamdi or FISA.

Kyle,
Okay, you're right, if one takes the reasoning at that level of generality. It sounds fine to me.

Andrew,
Kyle is right at that level of generality, you're right at yours (though I would argue that is too narrow a reading). My point in citing to it was that Scalia made a realist point about the futility of Congressional means to limit legislation as if it operates within a legal vaccuum at the end of his concurrence (which is not law, anyhow): "I think it does no favor to the Members of Congress, and to those who assist in drafting their legislation, to keep secret the fact that such express-reference provisions are ineffective." In other words, we'll just disregard those textual differences.

My apologies, I see your point now, Jack John, regarding Lockhart, thanks to Kyle's comment. Maybe we're on the same page after all. The AUMF superceded FISA despite 2511. Yes, that's what I've been saying.

And there is nothing in the 2001 AUMF that indicates it was intended to susbtitute for 2511 and FISA, nor to my knowledge anything in the legislative history.

But there is Hamdi.

Incidentally, although I don't actually think this is an express-reference case, I might note that we are just talking about a concurrence in Lockhart (O'Connor wrote for the other 8 Justices).

Yes, and Congress passed AUMF, which was interpreted in Hamdi to include incidents of war.

First, the letter pads its arguments with quotations from concurrences. These statements are not statements of law; they're just the opinions of the individual justices who join in the concurrence, serving at most as tipoffs of how those justices would frame the opinion of the Court if they had five votes for those statements in that case.

Look, terrorist attacks do not endanger national security, in the sense that they will cause the overthrow of our government and the installation of Islamic rule. Thus, the letter's recitation that security is the most important thing is misleading. Liberty is more precious than security, else why do men walk into a hail of bullets that may cause their death, to secure liberty? The American Revolution certainly endangered the security of the colonies, yet they sorely endangered it to achieve more liberty.

The fact that there will be another terrorist attack sometime, somewhere, that also will not bring this great country down, does not justify a perpetual state of emergency which in turn is alleged to justify any measures the executive wants.

Eventually, in cycles like these, the scared American public relaxes and wants its liberty back. It may be necessary to beef up the statutes or even pass an amendment to deal with terrorism and our own government's tendency to overreact to same; but such will be impossible with the current President and Congressional lineups. That doesn't mean stringent objections should not be made. One that can be registered without a veto-proof majority is refusing to make some or all of the Big Brother Act permanent until we can get a government that is not run by a fear and smear campaign.

terrorist attacks do not endanger national security

This argument is self-refuting and destroys its author's credibility.

The Commader-in-Chief clause. so how would this clause operate in real terms to limit the abuse i have described. If by commander-in-chief you mean only in times of war, there are a number of problems with this limitation. The most notable being who decides when a war is over? I would assume it is the commander-in-chief, the one who has all this unfettered power you are willing to give to him. Do you honestly believe a dictator will give up his powers. I do not have much faith that there are many, if any, Cinncinatus out there.

Medis, why do you think that the AUMF only sought to protect the War Powers Resolution from being superceded, without seeking to protect FISA (including FISA's 15-day wartime limit on unwarranted surveillance)?

But the president's plan goes well beyond FISA's 15 day limit. So if Congress sought to protect this limit through passage of AUMF, this does not held the administration's cause as the program in question clearly exceeded this limit.

There are many here that would have you believe that FISA could trump the Presidents power under Article II to conduct warrantless searches, but that is quite a stretch. That would be like saying that Congress could pass a law requiring Senate approval to fire a Cabinet officer. Or modify the conditions of the President's veto. The Courts have always been very skeptical of legislative attempts to enhance the Constitution, such as the line item veto, term limits, the religious freedom restoration act.

But most ridiculous argument I've heard is that Congress one week after 19 embedded moles launched a foreign conceived and directed attack against the US from within the US, had no intention of conferring intelligence gathering authority on the President when they declared war:

[R]ender it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad

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.

Some in Congress may well regret this re-affirmation of the Presidents Article II powers, but they haven't used their reference to the War Powers act to revoke them either.

MMK, I asked Medis why the language of the AUMF failed "to protect FISA" and I did not (as you suggest) ask Medis why the language of the AUMF failed "to protect the 15-day wartime limit of FISA."

The last sentence of the AUMF is: "Nothing in this resolution supercedes any requirement of the War Powers Resolution." The last five words are not suplusage, and they considerably narrow the meaning of the sentence. Congress obviously wanted to avoid the implication that the AUMF would supercede nothing.

There are many here that would have you believe that FISA could trump the Presidents power under Article II to conduct warrantless searches, but that is quite a stretch. That would be like saying that Congress could pass a law requiring Senate approval to fire a Cabinet officer. Or modify the conditions of the President's veto.

The obvious distinction, of course, is that the veto is an explicitly named power, whereas the "power to conduct warrantless searches," if such a thing exists, is at best the implied correlate of a more general shared warmaking power. As for removing cabinet officers, a plausible original-meaning argument could be made that the Constitution doesn't determine anything about it one way or the other. I don't think this argument is right (i.e. I think Myers was rightly decided), but it's not silly or incoherent.

Medis, Congress obviously believed that the AUMF was necessary and appropriate, or they wouldn't have passed it. The purpose of the words "necessary and appropriate" in the AUMF was to delegate discretion to the President (and also possibly to the courts).

Moreover, I never suggested that FISA as amended provides "a rule that did not apply in the situation as described in the 2001 AUMF." I believe that FISA as amended does provide a rule that generally applies in the situation as described in the 2001 AUMF, except in particular, exceptional real-world instances where such application would prevent the President from using "all necessary and appropriate force" to defeat Al Qaeda.

And finally, the last sentence of the AUMF is: "Nothing in this resolution supercedes any requirement of the War Powers Resolution." If Congress believed that the AUMF superceded no requirement at all (as you apparently believe), then there was no reason to qualify the sentence by adding the last five words.

Well, I guess we'll just agree to disagree. Thanks again for the conversation.

Just a question for someone with knowledge of federal procedure: is there any plausible way that the FISA Court could try to bring surveillance in violation of the FISA statute to an end, either through its contempt power or through mandamus? (I presume that the All Writs Act applies to the FISA Court?)

I qam glad to see that Cass Sunstein, who no one has ever said is in the tank for Bush, agrees with the points I made in my 8:41 PM post last night re: the overwrought claims of usurpation of all that is holy to a free society:

"...I think the reason is we're seeing a kind of libertarian panic a little bit, where what seems at first glance...this might be proved wrong...but where what seems at first glance a pretty modest program is being described as a kind of universal wiretapping, and also being described as depending on a wild claim of presidential authority, which the president, to his credit, has not made any such wild claim. The claims are actually fairly modest, and not unconventional. So the problem with what we've seen from the media is treating this as much more peculiar, and much larger than it actually is...."

His whole analysis can be found at:
http://www.radioblogger.com/#001248

In other words, plain vanilla intelligence gathering, supported by plain vanilla axioms of statutory construction and no power grabbing constitutional claims.

I'm not convinced by anything I've seen above that the Supreme Court would for a moment entertain the notion that Hamdi does anything other than make the AUMF the equivalent of a declaration of war for purposes of FISA. Congress authorized war -- and war it is, with all the legal restrictions that apply to war.

As to Keith, Truong etc., we're in pure Youngstown territory, and I don't think, based on his confirmation testimony, anyone ought to be betting on the CJ voting to overturn it.

So here we go again.

Let me start out by saying that all these arguments are necessary and appropriate, and that the liberty vs. security debate is one we need to have. However, just by looking at the fact that this 1 blog has 4 posts with more than 300 comments arguing the legal specifics tell me one thing.....this is a non-starter for the Democrat party. Sure sure, there will be hearings, and much wailing and gnashing of teeth, perhaps even some Feats of Strength by the usual suspects, but in the end this is so completely arguable, that the Administration and the RNC will end up bludgeoning the Democrats with this come election time.

BTW, can someone link me to something that said this was done on U.S. citizens, cause the limited amount I have read has been very non-specific about that.

Darth Rovius has done it again.

When I practiced law (I'm retired) I always thought that my job before an appellate court and particulalry the Supreme Court was two fold. First I needed to show why the result I wanted was good policy --it was the right result. Second I needed to show the court a way to get there -- by logic, rule of construction, or the constitution.

The discussion here, and on other blogs has been illuminating. It certainly has clarified things for me. I think we all recogize that one can "get there" via something like the DOJ's reasoning. I think we all also recognize that it is a somewhat twisty tortured path. If the issue were just statutory construction, it is possible that it is not the best path.

But, as is usually the case it isn't just a matter of statutory construction. There are grave policy issues present.

There it seems to me. the administration has a very compelling case. A number of figures, and not just those politically biased for the administration, are saying that this program is important. Moreover, our own common sense says it is important. Events say that it likely is important. We are uncertain whether the apprehension of Faris was the result of this program and was an operation FISA's procedures would not have worked for. It is not certain that an examination of Moussaoui's computer pre 9/11 , which the FBI concluded they could not meet the FISA standard for, would have revealed details of the plot. But we can easily picture how these and other similar things we do not know about could make important the ability to conduct this kind of program. We do know that a 3-star non political Director of the NSA said:

Q Have you identified armed enemy combatants, through this program, in the United States?

GENERAL HAYDEN: This program has been successful in detecting and preventing attacks inside the United States.

Q General Hayden, I know you're not going to talk about specifics about that, and you say it's been successful. But would it have been as successful -- can you unequivocally say that something has been stopped or there was an imminent attack or you got information through this that you could not have gotten through going to the court?

GENERAL HAYDEN: I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available.

Q Through the court? Because of the speed that you got it?

GENERAL HAYDEN: Yes, because of the speed, because of the procedures, because of the processes and requirements set up in the FISA process, I can say unequivocally that we have used this program in lieu of that and this program has been successful.

Those are pretty compelling policy reasons to find a way to uphold the action.

Moreover, if the statutory construction path is not followed, the court will have to deal with the consitutional question of the President's authority as commander in chief, and whether Congress can impinge on that authority. Those are nasty questions that most courts will go a long way to avoid.


What are the policy arguments the other way? The principal one it seems to me is the argument that this is unbridled power -- that only the executive knows what is being done, and that only the executive decides whether it is reasonable. In this instance , it seems to me the administration has pretty good counterarguments. It informed 13 members of congress. It gave 12 briefings to the pertinent majority and minority ranking members in the intelligence subcommittees. It told the head of the FISA court what was being done. It put down the parameters of what was being done in a written executive order. It allowed operational non-political people, not politicians, to make the hour by hour decisions. Moreover, it appears to have limited the program to what was necessary.

So it seems to me that this program is going to pass muster with a court if it ever comes before one. Only the most rabid partisans are willing to say "But we know the President's motives are bad, and he lies, and he got the A.G. to lie, and a 3 star, and he sucked the ranking house democrat member of the committee into the conspiracy, and he made those other 12 congressmen be quiet by threatening them with jail, and he even made the New York Times falsely hold back parts of its story".

Being a bit sceptical of human nature, and cognizant of a history where power allowed for good ends eventually ends up being used for bad, I would like congress to fairly and theoretically address and legislate how programs like this should be conducted -- require for instance the disclosure to the intelligence committees rather than relying on the president's good sense to do so. I think, knowing what we do now, Congress could put something good together without needing more details of the program.

Nonetheless, on balance, it seems to me that this program makes sense, is legal, and would be found legal by a court. Had it not been distorted by the newspapers and by politicians trying to score points, I suspect the overwhelming majority of the citizens would also agree.

Assuming it is agreed that Justice Jackson's Categories I,II and III in Youngstown apply to the issues at hand, and further assuming agreement that Bush's NSA surveillance, as with Truman's wish to seize the steel mills, falls under the Category III rubric in which any Article II presidential "inherent authority" is at its lowest (but not extinguished) ebb -- by virtue of flouting a congressional statute -- does not Jackson's language:

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence.

establish the (merely) plausible wiggle room Bush needs?

CharleyCarp,

I think you are probably right in that the AUMF is correctly interpreted as a declaration of war. That is implicitly consistent with Hamdi and explicitly with what AUMF's author, Sen. Biden, has stated (long before the current controversy surfaced).

The obvious problem with that for the Bush administration is that FISA's section 1811 anticipated such a declared state of war, and prescribed in advance what that would mean for the surveillance activities governed by FISA:

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.

The fifteen days lapsed a long time ago.

Notably, the administration's letter failed to address this obvious point.

Since we have NO technical details on how this "surveillance" was carried out, I'd like to offer some points for consideration:

-The Administration DID obtain FISA warrants for thousands of wiretaps,
so why not these?

-Is an IP address or webmail account a "known U.S. person"?

-Similarly, is a pre-paid cell phone a "known U.S. person"?

If not, how is it even possible to get a FISA warrant?
And, if unwarrantable, how to legally surveil?

But even if the Alito court would give Bush a pass on this, Congress can still bring articles of impeachment. So what should the charges look like?

While much of the commentary here has focused on the issues of statutory interpretation, it is important to realize that the administration's claim of statutory authority (under AUMF) is advanced only as a secondary argument. The DOJ letter is constructed as follows:

Under Article 11 of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty. ...

This constitutional authority includes the authority to order warrantless foreign intelligence surveillance within the United States, as all federal appellate courts, including at least four circuits, to have addressed the issue have concluded. ...

The President's constitutional authority to direct the NSA to conduct the activities he described is supplemented by statutory authority under the AUMF. ...

Of the two forks of the administration's case, the statutory reasoning is easier to attack. They don't even claim that the surveillance was legal within the four corners if FISA, and their claim that AUMF trumps that is weak. (I believe it is wrong.)

But ultimately, Bush argues that Congress can't stop him.

What is troubling is that his constitutional claim is so sweeping, and that it does not seem amenable to resolution by the courts. It is too early to call this matter a consitutional crisis, but it is getting closer.

Medis,

You asked whether I believe the 2001 AUMF gives the President the authority to order people to violate any provision in the UCMJ, provided that he believes doing so would be necessary and appropriate to carrying out his task under the 2001 AUMF. No, for several reasons.

First of all, if the President were to attempt to circumvent your hypothetical provision of the UCMJ, then the courts would probably have the final say about whether that UCMJ provision prevents the President from taking “all necessary and appropriate force” against Al Qaeda. Surely, there would be no difficulty in getting a party with standing to bring suit.

Second, I have difficulty perceiving any provision of the UCMJ that arguably deprives the President of his traditional ability to run a war successfully, or that impinges on power to conduct activites that are clearly incidental to the use of force.

You also ask whether I really think that Congress intended the 2001 AUMF to make the UCMJ “advisory.” No, I don’t think Congress intended that or did that, nor do I think Congress made or intended to make FISA “advisory.”

To paraphrase John Marshall, the AUMF allows the Executive Branch to select its means for using force against the enemy. But, those means must be plainly adapted to the end, must not be prohibited by any controlling authority, and must be consistent with, e.g., the letter and spirit of the constitution and of the AUMF and of subsequent valid legislation. Courts can enforce all of these requirements, if a case or controversy arises. And such a case or controvery could easily arise if a disgruntled federal employee involved in the surveillance program goes public or is apprehended.

John Lederer,

While I disagree with many of your thoughts, my congratulations on a thoughtful post. I'll skip over the legality of the President's actions (though I have extremely grave doubts that it is legal) and concentrate on the other aspects of your post.

I think you're correct to separate the legal issue from the policy issue. There are, however, a couple of dimensions you're missing out on.

There is no objectively correct answer to to the proper balance between security and civil liberties. It's a matter of the subjective preferences of the American People. You cannot, therefore, say that some particular security measure is "necessary." To use an extreme example, body cavity searches on all passengers may marginally increase the safety of air travel. But I, for one, do not believe that the increased security justifies that particular imposition on my civil liberties.

The point here is that we need -- and are now having -- a debate on how to properly balance safety and security in America. That is one reason why I find super secret invasions of civil liberties to be extremely troublesome. We need to decide, as a people, how much is too much. The President may have enormous Article II powers but they do not extend to determining the basic contours of American civil society. There was, just yesterday, for example, an article in the NY Times about New York City authorizing a secret program in which the NY City police infiltrated purely domestic peaceful demonstrations. This sort of thing may be acceptable at some level but it is not acceptable that these programs be kept secret. Deciding whether these programs are a warranted intrusion on civil liberties ought to be a matter of public debate even if they are Constitutional.

Second, there is a political issue here that cannot be ignored. You are willing to place great faith in the word of the Adminstration. Some people, even some of us who are conservatives, are less willing. Strong leadership is an excellent thing but only when coupled with a track record of sagacity and success. The Bush administration, unfortunately, has far more cock-ups than successes to its credit. It has been just flat-out wrong about many things, many important things.

Now we live in complex times and mistakes will happen. But the record of the administration makes it impossible to accept "Trust us. We know what we're doing" as dispositive. We have a right to ask questions and debate the answers. More, we have a duty to ask questions and debate the answers.

All this is to say that, from a policy standpoint, it is not at all clear that things like the NSA wiretaps are a good idea, just as it is not at all clear that allowing torture is a good idea. We need to have a public debate about it to determine whether it is a good idea. It is most not definitely something the President can decide for us by executive fiat.

I recommend Lyle Denniston's recent piece at SCOTUSblog: ANALYSIS: Collison Course on Inherent Power?. It was written before release of the DOJ letter, but is still timely.

My expectation is that Congress will move to reinforce the statutory language, and soon. But if Bush stubbornly rejects any attempt to rein in the NSA program, I still wonder how this can ever be resolved in court.

The catch-22, it seems, is that no one can ever prove he was a victim of the surveillance, so no one can assert standing to bring an action.

Anderson,

You are right. PDF cut-and-paste left egg on my face.

Let's stick with Article II, instead of Article 11. :-)

Another way it can come up is if someone subjected to surveillance that does not comply with FISA brings an action for damages.

More directly, the FISA court is going to be asking the government whether any of the warrants it issued were based on this program (and based on misleading statements to the FISA court). If the answer is yes, and if criminal prosecutions came from those resulting FISA warrants, then this fact should be made known to the criminal defense lawyers.

I would imagine that Padilla's lawyers are all over this, for example.

CharleyCarp,

I, too, have wondered whether Padilla ever was surveilled under this program. That may or may not be true. In any event, Padilla's criminal case is still over the horizon. The case in the 4th Circuit is still about his erstwhile-and-possibly-still-true status as a non-criminal military prisoner, involving charges unconnected to the criminal case.

Very few targets of such NSA surveillance are likely to come under the purview of the criminal justice system. The government's preferred tactic is to keep them outside. Accused criminals have rights, which presumably would include discovery of such surveillance.

There is a remedy availabe for accused crimnals. What is the remedy for innocent persons caught in the surveillance net?

JaO, the criminal wiretap statute expressly requires that notice of the surveillance be given (after the fact, obviously) to the targets named in the order, and also to other persons insofar as the court determines it to be "in the interest of justice." The notice can be delayed "for good cause," but it must be given eventually. See 18 USC 2518(8)(d).

Andrew,

We have argued over the hypothetical language "Nothing in this resolution supercedes any requirement" before. Personally, I think that is completely unclear, and if I encountered it in any statute (the 2001 AUMF or otherwise), I would have no idea what the drafters intended. So, I think it was obviously reasonable for the drafters to include that additional language if their sole purpose was to make sure that people reading the statute did not interpret it as waiving any requirements of the War Powers Resolution.

Moreover, I really must object to your repeated claim that I am reading the 2001 AUMF in that hypothetical way (as if it said, "Nothing in this resolution supercedes any requirement"). My reading of that sentence is that it is ONLY about the requirements in the War Powers Resolution, and ONLY says that those requirements are not superceded. On my reading, the sentence says NOTHING about any other requirements. It doesn't say some other requirements ARE superceded, it doesn't say some other requirements ARE NOT superceded, it just says flat out nothing about any other requirements.

And I think that is what is fundamentally wrong about this particular argument of yours. That sentence does not have to take an implicit stand on the requirements in FISA (or the UCMJ, or any other federal law) one way or another. Rather, it could be completely neutral with respect to anything other than the requirements of the War Powers Resolution.

So, I thinkthat sentence tell us absolutely nothing about the issue at hand. Which is completely unsurprising--we need not, and should not, expect a sentence specifically about the intersection of the 2001 AUMF and the War Powers Resolution to provide us with a Rosetta Stone applicable to all other intersections between the 2001 AUMF and federal law. And I think you are making a mistake by assuming that sentence does more than what it explicitly purports to do.

I think Cass Sunstein has it correct here

As Horace put it, "Quandoque bonus dormitat Homerus."

On the other question, we have 50 USC 1810:

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 . . . 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.

It's just a matter of finding out whether one fits into the category.

The Original TS wrote: "That's it. The President does not have unfettered authority to do anything he likes as Commander-in-Chief. Rather, he has unfettered authority to do anything legal he likes as Commander-in-Chief."

"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." " --US Constitution, Art II Sect 1

Art II Sect 3 states the President "… shall take Care that the Laws be faithfully executed". Both an instruction and an admonition, it's a far cry from the blind, slavish submission advocated.

As long as the President's action is in defense of the nation --the Executive's primary, most fundamental task-- the Courts have backed them; and judging by Orin's cites, will continue. They understand the government isn't a suicide pact.

The Original TS wrote: "None of these laws, in turn, can violate the Constitution, e.g., Congress can't make a law allowing the military to move soldiers into people's houses in peace time."

Agreed. Nor can these laws violate the Constitution, e.g., Congress can't make a law that interferes with or thwarts the President's ability to defend the nation.

John Lederer wrote: "So which is surveillance of the enemy more like? "

Yes!
Kidding aside, it will depend on the circumstances. If FISA clearly interferes with national defense, it's clearly unconstitutional; if FISA's clearly not interfering with national security it's clearly constitutional.

It's apparent there's fuzzy areas, and if asked the Courts may give a rule for the gray proportions. Based on Congressional statements it's also a good chance (probable) that Congress and the President are in accord; that FISA will be used when feasible, Presidential powers otherwise, and neither will contest.

FISA's decent law most of the time and shouldn't be discarded merely because it doesn't fit some particular circumstances.

"If that is a power of the president as CinC can FISA stand at all?"

No, not if it's totally a power of the President; but that's not the claim by anyone (of standing) at this time.

If the President's inherent CinC power always prevails in wartime and thus allows unfettered surveillance activity otherwise regulated by FISA, does that not imply that the 15-day limit imposed by 50 USC 1811 is unconstitutional on its face? And perhaps all other regulations imposed by the FISA?

Just an Observer:

I've not been making the "inherent CinC power" argument, although it may be a legitimate argument. I've just tried to focus on the statutes. And, no, I don't think the 15-day requirement or any other part of FISA has been repealed. They all still apply with full force to electronic surveillance unrelated to Al Qaeda, for example. Also, regarding surveillance related to Al Qaeda, Bush had a 15-day period aftre passage of the AUMF, during which his surveillance was not subject to any judiciall enforceable "necessary and appropriate" requirement. That's my opinion, to which I'm sticking.

Andrew,

I realize that you have not been making the "inherent CinC power" argument. My question was not directed at you, but to the blog in general. It was not just rhetorical, however.

President Bush has been making that argument. And although he and the DOJ have not argued explicitly that the FISA provisions are unconstitutional, they do assert that the president is free to ignore them.

Meanwhile, I would quibble with your statement that "the wiretaps were from suspected Al Qaeda to people inside the U.S." I don't think we know that. We have few details about how the NSA surveillance was carried out.

According to what has been reported, attributed to background sources, the activity may have resembled a large, automated fishing expedition. From the Washington Post story about the FISA court's internal effort to get at the facts:

Bush administration officials believe it is not possible, in a large-scale eavesdropping effort, to provide the kind of evidence the court requires to approve a warrant. Sources knowledgeable about the program said there is no way to secure a FISA warrant when the goal is to listen in on a vast array of communications in the hopes of finding something that sounds suspicious. Attorney General Alberto R. Gonzales said the White House had tried but failed to find a way.

One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.

"For FISA, they had to put down a written justification for the wiretap," said the official. "They couldn't dream one up."

It seems that the FISA law could have been modified when the original Patriot Act was being written, to set a lower standard for court approval of such a large-scale surveillance program.

Gonzales said at his briefing this week that the administration could not get support in Congress for such a proposal. If the support wasn't there in September 2001, what kind of support will there be now?

When the administration couldn't get legislation it favored, it opted unilaterally to ignore Congress. When it couldn't satisfy the requirements of the FISA court, it opted unilaterally to ignore the judiciary.

Since you deeply respect Harmon, would you please explain how "critical intelligence capabilities" have been damaged by the story's going public?

1) Let them know that there were active intercept programs going on. (No, they don't always think of this: cf. when the fact that we could listen to bin Laden's satphone calls was blown, only then did the satphone calls stop.)

2) Let them know how quickly we could respond to the capture of a cell phone or laptop. They may well have believed that they had days to respond; knowing it isn't true will change their operational security "tradecraft".

3) Let them know they weren't protected by being "US persons". Operational security is always a tradeoff between security and maintaining communications; their calculation of that trade off very probably changed.

4) Let them know that some members of their group may have been compromised by us exploiting capabilities they hadn't accounted for.

5) Let them know that there may be changes in their favor in operational methods. We're actually winning this war pretty dramatically; that kind of improvement in morale can be very important.

Those are the things that occur to me offhand (I am an old intelligence guy.) With knowledge of our OPSEC and their OPSEC procedures that I don't have, I could probably think of more.

I am intrigued by this. You have mentioned it before as a hypothetical "United States v Leaker" case.

How would a prosecution of such a leaker, and his defense, squarely raise the secondary issue of presidential power? I don't get it.

In fact, since the prosecution would be on the Espionage Act, I'm not sure how you'd even raise the issue in court. On 60 Minutes, maybe.

Just an Observer, the text of the Fourth Amendment requires that any warrant be supported by "probable cause." So, it's really hard to imagine how the Bush Administration could agree to judicial oversight of a large-scale surveillance program without triggering a standard of review that would defeat the program. The "probable cause" requirement doesn't mean that it's "probable" a crime is being committed somewhere in the U.S. and therefore the government can barge into every house in the U.S. It's a case-by-case requirement. So, the Bush administration may not be so much concerned about avoiding Congress as avoiding the "probbale cause"requirement of the Fourth Amendment. And, the only way to legally avoid the probable cause requirement may be to avoid warrants.

Judge Posner had a recentcolumn in the Washington Post suggesting a possible way out of this dilemma. He inquired whether it's really a Fourth Amendment issue when some automated search engine scours phone calls for suspicious comments. Posner suggested that the privacy concerns may only arise when a human surveillance person actually finds out about the few suspicious comments that are automatically detected. It's an interesting idea, which may lead to improved legislation.

Kaz,

I've been following Sunstein's comments on the Chicago Faculty blog, and I stick by my claim.

Andrew,

I don't think the President would have been impeached if he had needed to devote a lot of resources to comply with FISA procedures. I also think that if he thought that was a wasteful use of resources, the correct remedy would be to go to Congress for a change in either FISA or the DOJ's budget, which I am sure he would have gotten if the only issue was the cumbersome nature of the process.

In general, that is really the fundamental problem here: if the legal structure created in the USA-PATRIOT Act was not working well enough, then the correct (and constitutional) response would be for the President to ask Congress for a change. Indeed, if the President had temporarily authorized violations of the FISA procedures while seeking this change, I think the argument for legality under the 2001 AUMF would be a lot stronger. And even if such a temporary suspension of FISA while he sought Congressional action was in fact illegal, I certainly doubt it would be considered grounds for impeachment. And if Congress had actually refused such a request, maybe we would have an opportunity to reassess the Youngstown framework entirely.

But I really think his apparent decision to bypass the legal structure as established by the USA-PATRIOT Act, without ever seeking a change in Congress, is clearly illegal (in the statutory sense). And I also think that even if he does have an Article II power to violate duly passed laws like the USA-PATRIOT Act (a proposition that I find questionable at best), it is a clear abuse of such power to do so without seeking to resolve the conflict by asking Congress to amend the law.

And yes, I think such abuses of power, even assuming the President has such powers, are potentially impeachable offenses.

The NSA's interception of electronic communications to and from foreign countries was known during the Vietnam War and the subject of litigation then. Here is the cite to a 1978 D.C. Circuit Court opinion from a district court action filed in 1975 concerning its interception of the citizen plaintiffs' communications originating in the U.S.:

Halkin v. Helms, 598 F.2d 1 (D.C. Cir. 1978).

The appeal concerned the "state secrets" immunity to discovery.

Medis, I'll ask you point blank. Can you please name any requirement of law that was superceded by the AUMF?

If not, then I believe you are treating the last five words of the AUMF as if they didn't exist.

Medis,

Do you think that the AUMF supercedes any other legal requirements, or not? That seems like a fairly straightforward question.

Medis,

If Congress hadn't added the last five words of the AUMF, then it would have been pretty clear that the AUMF did not supercede any other legal requirement. Right?

Medis,

Many people here are still as shocked! as Captain Renault to discover something blindingly obvious which has been going on since 1967, the subject of numerous federal cases as far back as 1972-75, been written about in the press for 33 years, and has been the subject of, or a plot device in, innumerable television news stories, generally horrible fiction, movies and television shows.

While many Americans view anything that happened before they were born as ancient history and of no possible effect on their lives, the breathless indignation on this legal board merits constant reminders that last week's NY Times story was phony news.

Tom,

You are overlooking a rather crucial historical development: the actual passage of FISA.

subpatre,

Do you actually have a link to the decision?

subpatre,

Thank you very much ... I hadn't been able to find it anywhere myself.

So, it turns out that the NSA surveillance in question occurred prior to November 1, 1971. And Jabara also did not contend that the NSA had violated his Fourth Amendment rights when doing the surveillance, but rather that his Fourth Amendment rights were violated when the FBI obtained the information from the NSA without a warrant.

So, that case addresses neither whether the current surveillance is legal under FISA nor whether the Fourth Amendment is violated by the current surveillance.

subpare,

From the case you linked to:

"Jabara, however, does not even contend on this appeal that the interception by the NSA violated his fourth amendment rights; we may therefore take as a given that the information was legally in the hands of the NSA."

Medis is correct, the surveillance occurred pre-FISA. Just an Observer is wrong however, or at least his understanding based on Holsinger's is wrong.

It's true the court stated

Jabara, however, does not even contend on this appeal that the interception by the NSA violated his fourth amendment rights; we may therefore take as a given that the information was legally in the hands of the NSA.

Yet the Court goes ahead and does it (opines on the warrantless surveillance) anyway. They had to do this in order to establish a warranted chain or a warrantless chain:

First, the simple fact remains that the NSA lawfully acquired Jabara's messages, and these are all that it delivered to the FBI.

must also be read as

First, the simple fact remains that the NSA lawfully acquired Jabara's messages, and these are all that it delivered to the FBI.

subparte,

I think it must be read as what is obviously is: a dicta. As such, it has little or no precedential value, and it certainly is misleading to portray such a dicta out of context as a holding of the court.

Tom Holsinger writes:

This is all partisan tripe by the terminally clueless.

Logician, heal thyself.

As for removing cabinet officers, a plausible original-meaning argument could be made that the Constitution doesn't determine anything about it one way or the other. I don't think this argument is right (i.e. I think Myers was rightly decided), but it's not silly or incoherent.

So did President Andrew Johnson, first when he vetoed the bill forcing the Congress to "over-ride", and then when he defended himself in Congress against the impeachment that was based his violation of the Tenure of Office Act by firing his Secretary of War.

Article II. Section 2.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting commissions which shall expire at the End of their next Session.

You are overlooking a rather crucial historical development: the actual passage of FISA.

So an act of Congress makes an activity that didn't violate someones 4th Amendment rights before its passage, suddenly a violation afterwards? Such a concept is itself is unconstitutional, to wit:

Article. V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

I had thought Congress by simply passing a law could not change the Constitution. Apparently I was mistaken.

Charlie,

It is starting to look like the NSA did intentional warrantless interceptions and examinations of purely domestic communications too, at the orders of persons the President had delegated authority to. This is way, way, outside the foreign communications exception to FISA.

There might be some foreign national exception to the warrant requirement here, but I doubt that covers all of them.

Phony howls of mendacious outrage from the usual suspects are one thing. I shot those down above.

There may be some real wrong-doing here.

"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." " --US Constitution, Art II Sect 1

Art II Sect 3 states the President "… shall take Care that the Laws be faithfully executed". Both an instruction and an admonition, it's a far cry from the blind, slavish submission advocated.

As long as the President's action is in defense of the nation --the Executive's primary, most fundamental task-- the Courts have backed them; and judging by Orin's cites, will continue. They understand the government isn't a suicide pact.

It is really sad that so many obvious intelligent (and from the nature of the postings legally trained) individuals have such a limited grasp of a true understanding of the Constitution.

The above quote seems to suggest that a President's oath to fulfill the duites of his office supercede any obligation he may have (after all he is only committed to doing "to the best of his ability) to safeguarding the entire Constitution itself, the very document that gives rise to the goverment over which he sits as the chief executive. If just reading this does not cause to pause and fear how far people are willing to go to defend a person (or to be charitable, an institution) then I don't know what will. Our country comes first not our devotion to party or political personalities. In reading much of the posts here there are times I could not help but feel that this misguided devotion was pushing the debate.

Similarly, messages from Kazinski (I suppose a play on the noted jurist Kozinski's name), Jack John, Tom Holsinger, and others that are so willing to either read Article II to give the President plenary (meaning without limit) powers during times of war or who seem to be non-plussed by the wiretaps themselves, should cause us all concern. No man (and for purposes of this post no branch of government) is above the law. The rejoinder, of course, is that how can the President be violating the law if all he is doing is fulfilling his obligations under Article II? This argument supposes that if a power is conferred under the Constitution, then that power is not checked or balanced by other provisions in the Constitution. Any lawyer can tell you this is simply not so. So, for example, say a President believes he can, and in fact, does start conducting warrantless electonric surveillance of American citizens as part of his Commander-in-Chief duties. Does this mean that ends the discussion. No!!! The courts under Article III when presented with a real-life case and controversy can adjudge the constitutional validity of the President's assertion of power. The Congress under Article I can conduct oversight of the President's assertion of power, begin impeachment proceedings if they believe it to exceed his powers (not that I believe there is a snow ball's chance of that happening), etc.,. My point is just because you can find a power under Article II does not mean that a President's power is not without limits with respect to that power.

Finally, many times through this post commentators have suggested that nothing is wrong with the President's assertion of power in this instance because he was only going after people linked to terrorists and/or Al Quidea. This is not an argument, this is an assumption. We do not know who was electronically surveilled nor do we know the circumstances that triggered such surveillence. While one would hope that there was something there to prompt such surveillence in the first place, the fact that the administration would not even seek to obtain a FISA warrant with its water-downed standard for probable cause suggests that the "there" there was not that much. Nor do we know how many people who were surveilled turned out to be truly linked to terrorists. I strongly suspect that after some surveillence some of people were found to have no link whatsoever to terrorists. While many on this post it would appear would have no problem with another citizen having to endure having their phone calls, e-mails, etc. (with all the personal info that come with such communciation broadcast to government agents), montiored for a period of time to clear them of having any connection with terrorists, I suspect that such a carefree attitude is perhaps driven by the commentator's belief that they would never have been so subjected to such surveillence, so why bother if others are so "inconvienced." Let us not forget that while one never think of themselves being surveilled (after all, I know I'm no terrorist), the government does not know that before the fact and may either through incompetence, inadvertence, or mistake only come to that realization after having electronically surveilled such an innocent person.

Not a single person has brought a case to court. Why? A court would refuse to hear it.

This is simply not true. A court's ability to hear a case depends on whether a live case and controversy before it. That means a party must have standing to be in court to obtain a ruling re: the President's wiretaps. The court would have to hear the legality of such a wiretap if, for instance, a criminal defendant can make a case that some of the evidence being used to prosecute him was obtained through these warrantless wiretaps and he/she seeks to have that evidence surpressed.

As for whether this is a political versus legal debate as is most things with respect to the law both are true. Nor do I think that one has to go call their elected representative before being able to voice their opinion and concerns regarding the topics of the day. Kudos to those that go the extra step and petition their reps, but I don't believe just because you haven't that you should keep your opinion to yourself.

THE DOJs stautory argument is not tenable. Here is why I believe so. The DOJ relies on the ATUF as superceding FISA's requirements. What statutory authority do they cite to for this proposition? The DOJ points to a section in FISA that says it is a crime to perform a warrantless wiretap on US citizens "except as authorized by statute." DOJ then points to the Hamdi case as an example where the Supremes said that ATUF had indeed superceded a statute. In Hamdi the statute in question prohibited the detention without court process of US citizens except "by Act of Congress." The Supremes held the ATUF was such an Act of Congress.

Here is the problem with the statutory argument -- FISA says its requirements can only be superceded by "statute." Tell me if I'm missing something but ATUF is not a statute. It was a joint resolution of Congress. It was not codified into the United States Code (the place one would normally find said "statutes") and interestingly enough it was not signed into law by the President. It didn't need to because again it was only a joint resolution of Congress.

Some may say that such a result does not square with Hamdi but that is not true. In Hamdi the anti-detention statute in question provided an exception for "Act of Congress." A joint resolution of Congress like the ATUF satifies the bill as an Act of Congress. Congress after all acted by passing a joint resolution demonstrating its sense on the matter. The same requirements however were not met for FISA's exception. FISA says only other statutes can supercede its requirements. Perhaps Congress felt that to supercede the wiretap restricitions required a more deliberative effort on the part of Congress than the anti-detention statute in Hamdi required. At least that would be a sound policy reason for the difference in language. Nonetheless because ATUF does not satify FISA's statute requirement it could not have acted to supercede FISA's requirements.