Dear Professor Kerr,

For a memorandum opinion to have effect as a legal ruling does it have to be made by the entire court, a majority or can one judge make a memorandum opinion?

Noah

Orin: Let's take your strongest-case scenario: The FISA court (of appeals?) rules that the new NSA program is unlawful, and thus excludes fruit of that poisonous tree from any applications for FISA court orders in which such evidence is introduced -- *and* this prevents the Administration from obtaining FISA orders in a handful of cases. I think that's a pretty far stretch, but let's assume it happens that way. Do you think that would stop the Administration from continuing with the NSA program, or would they instead simply either (i) swallow their losses in that handful of FISA applications; and/or (ii) use the NSA program in those cases rather than FISA itself?

Jutblogger, I think Orin is positing a case in which the FISC denies a warrant application from the Government on the grounds that the information forming the basis for the warrant was obtained through the disputed NSA surveillance, and issues an opinion holding that that surveillance is illegal.

Somewhat off topic, but what would happen if Congress passed a resolution "repealing" any authority for warrantless wiretapping that may have been conferred in the AUMF? Wouldn't that make it much more difficult for the President to justify continuation of the program? As I read the white paper, mooting the statutory arguments based on AUMF would leave the Administration resting on its inherent authority argument alone. The Administration would be forced to argue that FISA is unconstitutional, a blunt and aggressive position that even many Republicans would find unpalatable.

Professor Kerr,

I hope in your upcoming analysis you will deal with the 2002

FISA court's ruling that the President does have the right to practice warrantless

wiretapping for intelligence purposes.

srg,

Back in the beginning of discussions, Professor Kerr did in fact discuss the dicta in In re Sealed Case. The CRS memo also has an extended discussion of that dicta.

Proposing that this case makes it all the way up to SCOTUS and that they will want any decision to be as narrow as possible.

Since the "War on Terror/War on Extremism" has no clearly defined end; can a legal argument be made that the AMUF expired with the fall of Iraq and/or President Bush's anouncement of Mission Accomplished?

Looking back at WWII the war with Germany was over even though we were still occupying it.

No source has ever stated FISA violations. The NY Times and other press with primary sources have never claimed that. The articles imply, suggest, hint, insinuate, and even implicate violations; but never close the gap to claim breach.

The Jan 19th paper provides new information, not just scrutiny or justification. The facts are narrowed from ‘foreign communications’ (FISA) to “a reasonable basis to conclude that one party … is a member … [is] affiliated with … [or] an organization affiliated with al Qaeda.” This limiting factor is repeatedly emphasized in the paper, and AQ, not 'foreign', puts it squarely within AUMF.

A pitfall legitimate critics have fallen into, and probably yourself as well, is disallowing the potential that the administration is correct and the huge scope alleged in the media is also correct. We recoil at the thought.

Evidence from past domestic terrorist organizations shows, repellant to the mind's eye as it may be, an enormous quantity of peripheral support is needed for a covert organization to operate. Sanctuary, transportation, false papers, weapons, and cover employment or financial support are direct facilitation of the principals. In turn, the organization requires an immense amount of information and money.

The SLA, a handful of 1970’s counter-culture radicals, had up to a thousand knowing contributors of cash or intelligence information. Estimates on the leftist Weather/PrairieFire and the rightist Christian Identity movements are thousands such supporters. These groups' aims were as broad, but tactics fell short of AQ's; and never had enough membership for suicidal acts.

With 3.5 million Muslims, if one-half percent are willing to contribute money or pass information, there's a potential 17 thousand AQ supporters in the US.

Not a single commenter here has allowed the possibility of such a massive amount. In WWI sentiment was so high that anything German was suspect; in WWII the feeling was against Japan. For better or worse, the reaction reduced the number, or effectiveness, of internal enemy agents.

If the NY Times is substantially correct, and the administration correct on the targets; then the analyses about FISA are moot.

John Lederer: "The Democratic Party would no longer exist as a viable force in American politics."

And how would that be different from the status quo?

Kidding aside, your point is well taken about the political risk to Democrats in getting too far out in front of this as a political issue. To the extent that this issue can be spun as "Democrats are soft on terrorism" -- which is quite a large extent indeed -- the White House is excited.

I was less than thrilled to see Al Gore step up as a spokesman on this, however much I might agree with part of his message. His endorsement by Bob Barr, a former Republican congressman and now Libertian, did not go very far to sell the rally to the media as "transpartisan."

However, there is a significant body of Republicans in the Senate who are really not happy about this. Defections among some of them prevented the filibuster against Patriot Act renewal a month ago from being a party-line manuever, and the concerns over the NSA controversy have ballooned since then. Recall also the 90-9 vote in the Senate for the McCain torture amendment, if only as a barometer of how willing Congress is to rein in excesses in the war on terror.

I think ultimately Bush will seek accommodation with a centrist group in the Senate, with a statutory compromise of some sort. He then will issue a signing statement that makes everyone wonder if he will abide by the new law.

The venue the administration fears most, I believe, is the judiciary. They are much more confident submitting their 42-page brief to the blogosphere than to a real court.

Personally, I wonder if the Administration actually wants some sort of favorable precedent on this issue, as opposed to merely avoiding it with some sort of compromise. Perhaps not in an Article III court, but perhaps in the form of an actual capitulation in Congress--eg, the President openly defies Congress, and Congress refuses to act to protect its laws. Indeed, the first step is essentially in place already.

So, Congress could do some version of "FISA--this time we mean it!", and I think it is possible the President will simply refuse to comply. And if they then do nothing to stop him, the President gets a very powerful precedent.

Putting everything aside, what would we want to govern surveillance?

I would want:
(1) Whatever assurance I could get that the surveillance could not become politically motivated.
(2) Assurance that intercepts that do not become the basis of a kill/capture are kept confidential, and eventually, destroyed (I recognize that the need for keeping may be long to build a history of communications for analysis purposes)
(3) Assurance that this program does not become a normal crime fighting mechanism

Within that I would want maximum freedonm for the administration. I also would like to see the courts out of the business of supervision (not sure of the substitute mechanism, but courts are, by their nature, free of responsibility)

John L.,

Noticeably absent from your list is a simple concern--shared by many, I suspect--about the government listening into private conversations when such surveillance is not actually relevant to any legitimate purpose, even if just in error and not for some illicit (eg, political) purpose.

Incidentally, you might not like courts being in the business of applying the law to specific cases, but that is in fact their business. And I think there are good reasons for wanting the people playing that role to be as politically-neutral as possible.

subpatre,

You left out of my quote "even if just in error." And as it turns out, the government is not infallible.

subpatre,

I think you missed my point. The government could actually be wrong about whether the communication in question involves a party who is linked to Al Qaeda.

KMAJ,

You write: "Your hypothetical does not measure up to the reasonable standard. Because it could be wrong, you don't surveil any calls ?"

No, of course not--the mere possibility of error does not suggest that there should be no surveillance at all. Indeed, in practice it is essentially impossible to guarantee a zero error rate. But the possibility of error is one of many reasons to adopt procedures (namely, procedures that could help reduce the government's error rate.) And I might note that one such possible procedure is to have the government present its evidence to a neutral third-party for an independent assessment. Indeed, this is a commonsense procedure for reducing error.

And keep in mind that I was responding to John L's question about what factors we should be considering when designing the legal framework. I was merely pointing out that one of the traditional factors to consider in these discussions is the possibility of error. But there is no fixed answer to which error-reducing procedures are the right procedures, nor for that matter what counts as an acceptable level of error, although the Fourth Amendment does provide some guidance. In any event, the possibility of error is simply one of several notable considerations we should keep in mind.

Incidentally, although this had nothing to do with my post, I think you need to review your history. The Continental Congress was heavily involved in intelligence matters during the Revolutionary War, and indeed had an active role in actually directing intelligence operations. I think that last bit would in fact be unconstitutional today, but the notion that somehow Congress has never before now been involved in matters of wartime intelligence is simply untrue.

In general, I think it is a red herring to argue that intelligence and surveillance are important aspects of war. Of course they are. But that doesn't somehow disable Congress from passing laws on those subjects, nor for that matter does it mean the Constitution is suspended. The bottomline is that under our Constitution, war is not a law-free or Congress-free zone, so pointing out that we are dealing with matters of war doesn't really answer the relevant questions.

That authority must be explicit, and in fact was already explicitly defined in laws such as FISA.

No, yours is a bad argument. The white paper makes clear that specific language is not needed for these kinds of authorizations, e.g., the authorization for war against Germany in World War II. The mere fact that wiretapping or other forms of intelligence gathering were not explicitly mentioned in that authorization does not mean the authorization failed to provide the President the authority to do so as a necessary and appropriate means of waging war against Nazi Germany. Therefore, the fact that this authorization is specific to the President -- the fact that determining when and where the authorization applies is a matter under his sole discretion -- it means that any and all powers the President has can be applied to someone he determines falls within the scope of AUMF. That is an extraordinary grant of power from Congress, an extraordinary reinforcement of the President's constitutional power under Article II. Because the President HAS the power to gather intelligence for military purposes under Article II and because AUMF is a war authorization that grants wiretapping as an incident to war, all the President has to do is determine that a particular person, organization, or nation should be wiretapped.

Medis and JaO,

This all comes down to an elevated level of distrust that permeates this politically polarized country. Would anyone have questioned FDR ordering surveillance to detect Nazi infiltrators within the country during WWII ? My point is that it is irresponsible. There is no evidence or reason to suspect this program goes beyond what has been stated, communications from or to known or suspected terrorists or terrorist organizations. As such, that surveillance is reasonable and would fall under executive branch authority to defend and protect, and any attempt by FISA to encroach on that authority would be unconstitutional. If you have any solid evidence to the contrary, I would like to see it. I simply do not buy into any illegality when no voices of concern have been raised by thsoe informed in Congress or by the head of the FISC Court, except where the Head of FISC and DOJ officials aired concerns that caused a restriction on the surveillance until those concerns were addressed.

If anyone had solid evidence of abuse, I would join with you in calling for an investigation, but that is simply not the case. At some point, common sense has to rule over partisan political gamesmanship. If you converse with a terrorist or terrorist organization, I want to know about it, and I want to know what you discussed to know if you are innocent or an accomplice.

During the Revolutionary War, George Washington ordered espionage without consulting the Continental Congress. That the CC engaged themselves in intelligence, prior to the Constitution, is not reflective of the Constitution. It is a clumsy way to engage in intelligence gathering, the more people that know about it, the harder it is to keep it secret.

This is not about the law, it is about how polarization in this country has elevated politics above the security of this country. And while it is the democrats that are endangering this country for political gamesmanship and power, I am under no delusion that if the roles were reversed, republicans would be doing the same, and it would be just as wrong. The democrat memo in the Senate Intelligence Committee laid bare how badly politics is serving the poeple of this country. Debates like this among the legal community only add fuel to the fire.

I really would not be surprised to see the SCOTUS strike down, or severely curtail FISA, if this is brought to them as a full frontal assault on executive authority. The NSA surveillance does not even come close to the executive branch authority used by Andrew Jackson, Lincoln, and FDR, nor does it reach the level that LBJ and Nixon used and abused during Vietnam. This is no 'unprecedented' tyrannical expansion of executive power as propagandized by those on the left. On the other hand, FISA could be charged with being the exact opposite, a 'unprecedented' expansion of power by the legislative branch.

You really should read The Debates in the Federal Convention of 1787
by James Madison

WILSON moved as an amendment to Resoln. 10. 1 that the supreme Natl. Judiciary should be associated with the Executive in the Revisionary power."
--
ELSEWORTH approved heartily of the motion. The aid of the Judges will give more wisdom &firmness to the Executive. They will possess a systematic and accurate knowledge of the Laws, which the Executive can not be expected always to possess.
--
MADISON considered the object of the motion as of great importance to the meditated Constitution. It would be useful to the Judiciary departmt. by giving it an additional opportunity of defending itself agst. Legislative encroachments; It would be useful to the Executive, by inspiring additional confidence &firmness in exerting the revisionary power ... If any solid objection could be urged agst. the motion, it must be on the supposition that it tended to give too much strength either to the Executive or Judiciary. He did not think there was the least ground for this apprehension. It was much more to be apprehended that notwithstanding this co-operation of the two departments, the Legislature would still be an overmatch for them. Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitutions; &suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles.
--
Mr. MASON said he had always been a friend to this provision. It would give a confidence to the Executive, which he would not otherwise have, and without which the Revisionary power would be of little avail.
--
GOVr. MORRIS. Some check being necessary on the Legislature, the question is in what hands it should be lodged. ... The interest of our Executive is so inconsiderable &so transitory, and his means of defending it so feeble, that there is the justest ground to fear his want of firmness in resisting incroachments. He was extremely apprehensive that the auxiliary firmness &weight of the Judiciary would not supply the deficiency. He concurred in thinking the public liberty in greater danger from Legislative usurpations than from any other source.

Clearly, the Founders were more concerned about legislative branch encroachments and usurpations, of which FISA could justifiably be characterized. They also envisioned some form of alignment between the executive and judicial branch to prevent legislative branch encroachments. That legal minds have not gathered on to this aspect of the Constitution is troubling, as they help propigate the very thing the Founders feared.

KMAJ,

It is absolutely true that the Founders recognized that in a nation ruled by laws, the legislature would inevitably be the most powerful, and thus most dangerous, branch. Accordingly, to counteract potential abuses of that power they created a number of different mechanisms.

First, they divided Congress into two different houses, with very different methods of selecting the members of each house, and required the assent of both before a measure could become law. Then, they gave the President a veto, which would require a supermajority in each house to overrule. Finally, they made the legislative power one of enumerated powers, and further wrote specific limitations on the use of those powers (both in the main text and the Bill of Rights).

But what they did not do is give the President the right to ignore the law when he thought those laws had become unreasonable. In other words, the one principle they would not sacrifice, even in the name of hedging in the legislature, was the Rule of Law itself. And that is why when you claim this:

"As such, that surveillance is reasonable and would fall under executive branch authority to defend and protect, and any attempt by FISA to encroach on that authority would be unconstitutional."

. . . you are in fact supporting an extraordinary and indeed unconstitutional proposition about executive power.

And it is too bad that you see this through a partisan lens. I'm tempted to ask you to imagine how you would indeed feel if a very "liberal" Democrat President was claiming that the laws passed by a very "conservative" Republican Congress were unreasonable and thus unconstitutional, but I aqctually think that is the wrong approach. This is not about political parties. This is about preserving the fundamental nature of our government, and it is a shame you are unwilling to believe that people can have such concerns for non-partisan reasons.

KMAJ:

Medis and JaO,

This all comes down to an elevated level of distrust that permeates this politically polarized country. Would anyone have questioned FDR ordering surveillance to detect Nazi infiltrators within the country during WWII ? My point is that it is irresponsible.

Your clear inference is that I and others who question the legality of unwarranted surveillance are "irresponsible." I emphatically reject that slur, which approaches some of the low attacks you have made in other threads here on persons whose views are in opposition to your own.

(I am still waiting for you to retract your completely unsubstantiated suggestions that the non-partisan CRS professionals who critcised Bush's legal assertions were actually being partisan, and that Judge Robertson violated his oath by leaking information from the FISA court.)

When you sling mud at me, I will not allow you to duck as you did in those instances.

It is not "irresponsible" to insist upon the rule of law.

KMAJ:

If anyone had solid evidence of abuse, I would join with you in calling for an investigation, but that is simply not the case. At some point, common sense has to rule over partisan political gamesmanship.

Once again, you assume incorrectly that I am a political opponent of the President and his pary, so my legal concerns must be motivated by partisanship. Once again, you are wrong. I consider my own views to be rather conservative, and I certainly am not a Democrat.

There are conservatives and moderates within the Republican party who are seriously concerned about the legality of the President's actions. In general, your accusations of partisanship are a red herring.

Medis,

I was supporting a very narrow interpretation of executive power, one that is necessary in war time to protect and make the country secure. You ignore the reality that this War on Terror is unlike any other war ever fought, the enemy is within (sleeper cells) and without. It has no government to negotiate with, nor is their actions restricted by international treaties and there is no uniformed military. The Founders no more envisioned this type of war than they envisioned the destructive potential of weapons created today.

You talk about checks and balances, but even Madison expressed fear that would not be enough:

"It was much more to be apprehended that notwithstanding this co-operation of the two departments, the Legislature would still be an overmatch for them."

Clearly, Madison believed even cooperation between the Judicial and Execuitve Branches would not be enough to rein in the Legislative Branch, and he was a Federalist.

Because one does not see legislative branch encroachment with FISA, does not necessarily make it so. Sealed Case certainly presents a compelling case for foundational argument, and it is the only case that deals directly with FISA.

JaO,

I am sorry you saw personal affront in general statements. The first quote you cite, I stated:

"This all comes down to an elevated level of distrust that permeates this politically polarized country. Would anyone have questioned FDR ordering surveillance to detect Nazi infiltrators within the country during WWII ? My point is that it is irresponsible."

Though not expressed with proper clarity, as I should have fleshed out the last sentence with "to not surveil". The 'irresponsible' comment was not an assessment of, or directed towards, you, but an assessment of government declining to surveil or impeding the ability to effectively do so.

The rest of your response is generated by your misinterpretation of what I said. I have clearly stated that were the shoe on the other foot, the Republicans would be engaging in these same destructive tactics. The evidence is there in how they reacted to Kosovo (not to be confused with Bosnia), another war based on faulty intelligence, where the sole reason, genocide, there was no national interest at stake, turned out to be false, and we allied ourselves with the KLA, it was discovered (we don't know when this was known) the group had ties to Bin Laden. Back then, I supported Clinton's decision and thought the republicans were wrong to create the division they did for political purposes.

This is about a very narrow surveillance program dealing strictly with terrorism. If someone wants to associate or communicate with terrorists or pro-terrorist organizations, that is their choice and their responsibility to accept the consequences for their own actions, which might make them fall under the surveillance net. The Constitution provides a right to freedom of association, but not a freedom from consequences because of that association.

Whether one is willing to admit it or not, those very same political forces are at play here. You also misinterpret a general statement as personally attributable, again, when I made no reference to your political affiliation when I said:

"If anyone had solid evidence of abuse, I would join with you in calling for an investigation, but that is simply not the case. At some point, common sense has to rule over partisan political gamesmanship."

It was a statement directed at what is going on in our capitol. You are free to disagree. As far as 'bi-partisan' investigations, the tone and intentions are blatantly partisan, there is no comparison between the rhetoric being put forward by the two political parties. Also, any 'bi-partisan' consensus could be attributed to 'Legislative Branch' loyalty to expand that Branch's power in our tripartite federal system of government.

Personally, I think this should be decided by SCOTUS. There is too much self-interest in having the Legislative or Executive branches decide when the result would be to expand one branches power, and the Legislative Branch has too much power in a one on one confrontation. FISA was enacted at a weak point in the Executive Branch history, fresh off Vietnam, Watergate and the abuses of executive power by LBJ and Nixon, their ability fight off such encroachment was curtailed by the public sentiment at the time and by a weak president in Jimmy Carter.

I have yet to see anyone address this 'talking point' of 'unprecedented' tyrannical expansion of Executive Branch powers in comparison to the Executive Branch authority exercised by past presidents, starting with Andrew Jackson to Abraham Lincoln, FDR, LBJ and Nixon. If this NSA program does not approach the level of authority past presidents exercised, than any claim of 'unprecedented' and 'tyrannical' is fraudulent on its face and blatantly political in its intent.

Once again, I apologize that you saw personal inference where none was intended.

Ans: If Congress did that, the President stopped, and there were a further act of terrorism in the United States, half of Congress would not be re-elected. The Democratic Party would no longer exist as a viable force in American politics.

I believe the empirical data (9/11 Commission Report, for one) indicates that the President gets the blame for all "National Security Failures", while Congress gets a pass.

Can you think of one National Security debacle where Congress took the rap?

subpatre, by hindsight DOJ's new 42 page letter would likely "justify" placing me on the surveill list, given the fact when I monitor my attorney husband's client's thread entitled "Bin Laden is Moses Reborn" on arianna.com, I respond to very offensive al Qaeda stuff posted by interlopers by voicing strong objections. In sum, how would one know the difference between one of those guys and the NSA who may be on it to entrap other bloggers by masquerading as pro- al Qaeda posters? "Bin Laden Is Moses Reborn" has an incredible 16,000 + readers.

Please, say it isn't so! US "secret agent" actually posing as "pro- al Qaeda posters" to entrap innocent al Qaeda recruiters. "The horror! The horror!"

The next thing you know these "flaming" militarist violaters of "privacy" will be using Armed Predator Drones to murder innocent senior al Qaeda planners as sit down to eat a little "ram on the rug"!

KMAJ,

Do you really believe that our national survival is somehow more at peril now than it was during the Revolutionary War or the Civil War? And obviously the "enemy within" was a far more serious problem in those wars as well. Nor are stateless actors a recent invention. And so on. In general, I find it hard to take seriously the idea that this particular threat somehow requires a fundamental reordering of the constitutional structure that has made us the most successful country in the history of the world.

But in any event, you are right that this President is hardly the first President to assert similar claims, although few Presidents have actually put those claims to a serious test. Of course, some have, and as a result there are some other precedents dealing with what can happen when a President resolutely defies Congress . . . but it is too early yet to know if those precedents will apply.

Do you really believe that our national survival is somehow more at peril now than it was during the Revolutionary War or the Civil War?

Much of the peril during the Revolution and the Civil War were directly related to the lack of or a "weak" President (James Buchanan).

During the Revolutionary War there was no President (Congress ran the War). As a result many Continental Soldiers spent the Winter at Valley Forge without shoe, sufficient cloths and food. We nearly lost that war - in fact you can count on the fingers of one hand the number of major engagement won by the Continental Army. Recognizing these short comings, the Constitutional Convention fixed this problem by Creating an Executive Branch, with a President as head, who would filled the monarch's function as Commander-in-Chief of the Military at times of crisis and war.

In 1861 this improved design worked, when newly inaugurated President Abraham Lincoln took it upon himself to suspend the Writs of Habeas Corpus issued by Supreme Court Chief Justice Taney to release John Merryman, Maryland "Copperhead" and others, who was trying to foment insurrection in the State of Maryland. Additionally, the President called forth the militia to defend Washington, and instituted a Naval Blockade of the Secessionist States.

Without warrant and without any sworn statement, but merely upon an order of the Secretary of State or the Secretary of War, hundreds of men were arrested for the expression of words construed as tending to inflame party spirit or as sympathetic with the Southern cause, and hurried away to Forts Lafayette, Warren, McHenry, Delaware, Mifflin, Old Capitol Prison, penitentiaries and military camps in the different parts of the country. So many arrests were being made that an attempt was made to test the validity of the President's action. In 1861 one John Merryman was held in detention at Fort McHenry by General George Cadwalader, under one of these orders of Secretary Seward, on a charge of treason. An application was made to Judge Taney, Chief Justice of the United States Supreme Court, for a writ of habeas corpus requiring the production of the prisoner before the judge on the ground that he was wrongfully detained. Chief Justice Taney signed the writ commanding General Cadwalader to produce Merryman before him and show cause for his detention. When the marshal of the United States Court presented the writ to General Cadwalader at the fort, Cadwalader refused to obey it, and when Taney issued a body attachment against him the general shut the marshal out of the fort. Thereupon the chief justice wrote an opinion as to the law, which was sent to the President, holding that the prisoner was entitled to his liberty and should be discharged and that Congress alone had the right to suspend the writ of habeas corpus. Lincoln ignored this, but later, in a message to Congress, asserted his right to suspend the writ of habeas corpus without limitation or interference.

Arguably Lincoln's prompt action as Commander-in-Chief saved Union. Had the President not acted as he did, your arguments would all be moot, as "the most successful country in the history of the world" would have ceased to exist somewhere around June, 1861.

Alternatively, Bush could straightforwardly accept calls for a special counsel to investigate the matter, with full authority to contractict Alberto Gonzales on points of law if the counsel's opinion so dictates.

I do not believe the President will do any such thing. I think his lawyers are quite afraid to argue the merits of their case before a court. The blogosphere and media are a much less rigorous venue.

The long-awaited final report by independent counsel David Barrett, to be released today, was severely censored by court order but not enough to sufficiently obscure its importance. As long forecast, it alleges serious corruption in the Clinton administration’s Justice Department and Internal Revenue Service. The question is what was contained in 120 pages removed by the judges.

These allegations explain why Barrett finally has closed down after 10 years the last prosecution under the lapsed independent counsel statute. Its target, Henry Cisneros, long ago resigned as secretary of Housing and Urban Development in a plea bargain after admitting he lied to FBI interrogators to gain Senate confirmation. What kept Barrett in business was what he and his prosecutors contend is a Clinton administration cover-up of income tax evasion charges against Cisneros.

Not only Barrett’s stubbornness but also a tip from an IRS whistle-blower in San Antonio meant the case did not end with Cisneros’ personal disgrace. But for now, the cover-up has succeeded. No tax prosecution was brought against Cisneros, and IRS conduct has not been questioned.

Friends describe Barrett, a Republican lawyer from Washington, as feeling at age 68 that he has failed fully to uncover the scandal and that it is now up to Congress to get out the truth.

This probably would have been just another undiscovered scandal had the whistle not been blown by John J. Filan, chief of the IRS’s Criminal Investigation Division in the South Texas District. In a March 31, 1997, memo, Filan expressed outrage that the IRS chief counsel’s office in Washington on Jan. 15 had pulled a tax evasion case out of San Antonio because it required “centralized review.”

Told to “box up” his evidence and send it to Washington, Filan wrote: “I am not aware of any other criminal tax cases that have been pulled from experienced District Counsel attorneys.”

With the case now in Washington, the IRS declined to prosecute. In a second memo on April 25, Filan said IRS Assistant Chief Counsel Barry Finkelstein’s conclusions “are just plain wrong.”

Payments to Cisneros’ former mistress and money spent for other purposes exceeded declared income, said the whistle-blower, and “clearly proves Cisneros knowingly and willingly signed and filed false and fraudulent income tax returns” for 1991, 1992 and 1993.

That launched Barrett on four frustrating years of attempting tax evasion prosecution in the face of Attorney General Janet Reno’s obstructions. Permitted by Reno to focus on only one year, the independent counsel could not make the case of extended tax evasion.

According to people with access to Barrett’s draft, it goes into intense detail about this obstruction and on the unprecedented seizure of the Cisneros tax case by the IRS in Washington. That much in the 400-page report has survived the three senior federal appellate judges with supervising authority over the independent counsel.

Nevertheless, the question remains what three judges — David Sentelle (D.C.), Thomas Reavley (Texas) and Peter Fay (Florida) — blacked out in 120 pages worth of redactions. Even after the report is released, Barrett and his lawyers would face judicial sanctions if they disclosed anything that was redacted. The Barrett Report

That's really what's needed another "special counsel to investigate the matter". One wonders if the MSM and "Bush is Hitler Crowd" would accept a report of the like the one into true corruption, intimidation, cover-up, and abuse Presidential power in the Clinton recently released by independent counsel David Barrett. The Federal Judiciary insured the necessary "full disclosure" to air out the Clinton Administration stink by redacting nearly 1/3 of the Special Counsel's report and threatening Barrett with contempt should any details the "secret" Clinton abuses be leaked.

On hand, we have the President of the United States fulfilling his duties as Commander-in-Chief and his OATH "to the best of my Ability, preserve, protect and defend the Constitution of the United States" by trying to locate "enemy agents" in the US plotting murder in mayhem.

On the we have the Clinton Administration neck-deep in corruption using the full powers of the Executive Branch, especially those of Justice Department, FBI, and IRS to lie, cheat, steal, threaten, intimidate, obfuscate, and cover up.

Which of these two abuses of governmental power do the bloggers on this site believe is the end of liberty in the US as we know it? Why the President trying to do his job as he sees it, of course. Corruption and coverup is okay as an excuse for abusing Presidential power, while National Security just don't cut it.

Yes, leaving it up to the courts is really the way to go. However, only the case of honest President.

JaO,

Partisanship has always been a factor in politics, my reference is to the extreme polarization that exists today. Simply referring to voices, democrat and republican, does not address the tone or rhetorical flourishes those voices exhibit.

I think a special counsel would be a very large mistake that would only add more fuel to the polarized rhetoric and would be used for political gamesmanship.

As far as SCOTUS involvement, I do not know if there is a vehicle by which Legislative Branch v. Executive Branch could be brought before them, that would examine the constitutional limits of FISA. Your avenue ceding standing is fraught with peril by setting a precedence for standing that could be detrimental and abused. Clearly, we have two biased, not partisan, white papers out there, the CRS report, requested by Senate democrats, representing the legislative branch and the DoJ white paper representing the executive branch. I think it is flawed reasoning to give one more weight than the other.

Victoria Toensing writes a very insightful piece in the Wall Street Journal on FISA, and the problems it creates, from the perspective of someone who had to deal with FISA.

Terrorists on Tap

Do Al Gore and other Democrats really want to keep the government from finding al Qaeda agents in the U.S.?

BY VICTORIA TOENSING
Sunday, January 22, 2006 12:01 a.m. EST

In a speech last week, Al Gore took another swing at the National Security Agency's electronic surveillance program, which monitors international communications when one party is affiliated with terrorists. Specifically, Mr. Gore argued that George Bush "has been breaking the law repeatedly and persistently," and that such actions might constitute an impeachable offense. The question he raises is whether the president illegally bypassed the Foreign Intelligence Surveillance Act (FISA). But the real issue is national security: FISA is as adept at detecting--and, thus, preventing--a terrorist attack as a horse-and-buggy is at getting us from New York to Paris.

I have extensive experience with the consequences of government bungling due to overstrict interpretations of FISA. As chief counsel for the Senate Intelligence Committee from 1981 to 1984, I participated in oversight of FISA in the first years after its passage. When I subsequently became deputy assistant attorney general in the Reagan administration, one of my responsibilities was the terrorism portfolio, which included working with FISA.

In 1985, I experienced the pain of terminating a FISA wiretap when to do so defied common sense and thwarted the possibility of gaining information about American hostages. During the TWA 847 hijacking, American serviceman Robert Stethem was murdered and the remaining American male passengers taken hostage. We had a previously placed tap in the U.S. and thought there was a possibility we could learn the hostages' location. But Justice Department career lawyers told me that the FISA statute defined its "primary purpose" as foreign intelligence gathering. Because crimes were taking place, the FBI had to shut down the wire.

FISA's "primary purpose" became the basis for the "wall" in 1995, when the Clinton-Gore Justice Department prohibited those on the intelligence side from even communicating with those doing law enforcement. The Patriot Act corrected this problem and the FISA appeals court upheld the constitutionality of that amendment, characterizing the rigid interpretation as "puzzling." The court cited an FBI agent's testimony that efforts to investigate two of the Sept. 11 hijackers were blocked by senior FBI officials, concerned about the FISA rule requiring separation.

Today, FISA remains ill-equipped to deal with ever-changing terrorist threats. It was never envisioned to be a speedy collector of information to prevent an imminent attack on our soil. And the reasons the president might decide to bypass FISA courts are readily understandable, as it is easy to conjure up scenarios like the TWA hijacking, in which strict adherence to FISA would jeopardize American lives.
The overarching problem is that FISA, written in 1978, is technologically antediluvian. It was drafted by legislators who had no concept of how terrorists could communicate in the 21st century or the technology that would be invented to intercept those communications. The rules regulating the acquisition of foreign intelligence communications were drafted when the targets to be monitored had one telephone number per residence and all the phones were plugged into the wall. Critics like Al Gore and especially critics in Congress, rather than carp, should address the gaps created by a law that governs peacetime communications-monitoring but does not address computers, cell phones or fiber optics in the midst of war.

The NSA undoubtedly has identified many foreign phone numbers associated with al Qaeda. If these numbers are monitored only from outside the U.S., as consistent with FISA requirements, the agency cannot determine with certainty the location of the persons who are calling them, including whether they are in the U.S. New technology enables the president, via NSA, to establish an early-warning system to alert us immediately when any person located in the U.S. places a call to, or receives a call from, one of the al Qaeda numbers. Do Mr. Gore and congressional critics want the NSA to be unable to locate a secret al Qaeda operative in the U.S.?

If we had used this ability before 9/11, as the vice president has noted, we could have detected the presence of Khalid al-Mihdhar and Nawaf al-Hazmi in San Diego, more than a year before they crashed American Airlines Flight 77 into the Pentagon.

And to correct an oft-cited misconception, there are no five-minute "emergency" taps. FISA still requires extensive time-consuming procedures. To prepare the two- to three-inch thick applications for nonemergency warrants takes months. The so-called emergency procedure cannot be done in a few hours, let alone minutes. The attorney general is not going to approve even an emergency FISA intercept based on a breathless call from NSA.

For example, al Qaeda Agent X, having a phone under FISA foreign surveillance, travels from Pakistan to New York. The FBI checks airline records and determines he is returning to Pakistan in three hours. Background information must be prepared and the document delivered to the attorney general. By that time, Agent X has done his business and is back on the plane to Pakistan, where NSA can resume its warrantless foreign surveillance. Because of the antiquated requirements of FISA, the surveillance of Agent X has to cease only during the critical hours he is on U.S. soil, presumably planning the next attack.

Even if time were not an issue, any emergency FISA application must still establish the required probable cause within 72 hours of placing the tap. So al Qaeda Agent A is captured in Afghanistan and has Agent B's number in his cell phone, which is monitored by NSA overseas. Agent B makes two or three calls every day to Agent C, who flies to New York. That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism. Yet, post 9/11, do the critics want NSA to cease monitoring Agent C just because he landed on U.S. soil?

Why did the president not ask Congress in 2001 to amend FISA to address these problems? My experience is instructive. After the TWA incident, I suggested asking the Hill to change the law. A career Justice Department official responded, "Congress will make it a political issue and we may come away with less ability to monitor." The political posturing by Democrats who suddenly found problems with the NSA program after four years of supporting it during classified briefings only confirms that concern.

It took 9/11 for Congress to pass the amendment breaking down the "wall," which had been on the Justice Department's wish list for 16 years. And that was just the simple tweak of changing two words. The issues are vastly more complicated now, requiring an entirely new technical paradigm, which could itself become obsolete with the next communications innovation.

There are other valid reasons for the president not to ask Congress for a legislative fix. To have public debate informs terrorists how we monitor them, harming our intelligence-gathering to an even greater extent than the New York Times revelation about the NSA program. Asking Congress for legislation would also weaken the legal argument, cited by every administration since 1978, that the president has constitutional authority beyond FISA to conduct warrantless wiretaps to acquire foreign intelligence information.

The courts may ultimately decide the legality of the NSA program. Meanwhile, the public should decide whether it wants NSA to monitor terrorists, or wait while congressional critics and Al Gore fiddle.

-- Ms. Toensing, a Washington lawyer, was chief counsel for the Senate Intelligence Committee and deputy assistant attorney general in the Reagan administration.

JaO,

Katz sidestepped the foreign intelligence question, Youngstown, in the Jackson Concurrence, only set up a framework of determination. FISA is an act created in a time that did not envision a War on Terror and has only been challenged directly once, in Sealed Case.

There are four appeals court decisions that side with the inherent powers argument, and none against, and all were decided during peace time. In Hamdi, the court recognized the authorization in the AUMF, but did not go toward addressing surveillance. We can cite past cases all we want, and interpret them in ways that meet our own personal biases. The fact remains, this case has never been before SCOTUS and we are trying to engage in crystal balling. In my opinion, if we do not admit and consider the different paradigm the War on Terror and weapons technology adds to this case, then any result you seek to crystal ball will be flawed.

KMAJ:

Katz sidestepped the foreign intelligence question ...

It is true that Katz did not address foreign-intelligence surveillance. But it did establish the important precedent that electronic surveillance is a search within the meaning of the Fourth Amendment. Thus Katz was the root of a series of cases in that area.

After Katz and consistent with its holding, Congress criminalized unauthorized wiretapping and eavesdropping generally in the Uniform Crime Control and Safe Streets Act of 1968 (Title III). That legislation explicitly carved out an exception for foreign-intelligence surveillance by deferring to the executive branch.

A subsequent milestone was the so-called Keith case in 1972, in which the Supreme Court decisively rejected the Nixon administration's assertion that surveillance in domestic subversion cases -- here a bombing by a radical group -- did not require a warrant. While that case also left undecided the area of surveillance involving foreign powers and their agents in the United States, the court suggested that Congress might choose to legislate in that area.

In 1978, Congress did so by enacting FISA. That legislation repealed the 1968 provision from Title III in which Congress had deferred to the executive in the field of foreign-intelligence surveillance. In place of this provision, FISA created a new regimen of regulating such surveillance.

The law established detailed definitions of foreign intelligence surveillance, foreign powers and their agents. It established the dedicated, secret FISC courts, the requirements for FISA warrants, and defined the required basis for the special warrants. Notably, that basis was not probable cause that a crime had been committed (as in ordinary Title III warrants) but just probable cause that those being surveilled were foreign powers or agents of foreign powers. Finally, FISA and Title III were declared to be the "exclusive means" by which any electronic surveillance in the United States is authorized.

My point to you earlier is that because none of this legal framework was in place during WWII, rhetorical arguments to the effect that "Roosevelt didn't need warrants" are quite misleading. If these statutes and precedents had been in place at the time, he would have been bound by them.

KMAJ:

Youngstown, in the Jackson Concurrence, only set up a framework of determination.

Well, it did set up a framework of determination, which famously is still cited today. Consistent with that framework, the court held that Truman's assertion of wartime executive power in that case was illegitimate because it contravened congressional intent.

KMAJ:

FISA is an act created in a time that did not envision a War on Terror ...

International terrorism did not begin Sept. 11, 2001. Although those attacks obviously had not occurred, terrorism in the world was quite evident.

In fact, FISA explictly covered terrorism. Its definition of "foreign power" included the 50 USC 1801(a)(4): "a group engaged in international terrorism or activities in preparation therefor."

KMAJ:

... [FISA] has only been challenged directly once, in Sealed Case.

Sealed Case did not challenge the constitutionality of FISA. The case involved the narrow issue of the extent to which foreign intelligence collected under FISA could be used in criminal investigations.

KMAJ:

There are four appeals court decisions that side with the inherent powers argument, and none against, and all were decided during peace time.

Inherent is not the same thing as exclusive. And the cases did not address the issue of executive power after FISA.

None of those four cases were based on facts from the time after FISA was enacted. Before FISA was passed, Congress did defer to the "inherent" (not "exclusive" executive powers. FISA repealed that provision, and replaced it with the FISA procedures (see above), which the President is bound to follow.

KMAJ:

... In Hamdi, the court recognized the authorization in the AUMF ...

In Hamdi, the a majority of the court agreed with the government that the AUMF authorized detention of a U.S. citizen captured on a foreign battlefield as an enemy combatant, which is rather a different matter from surveilling U.S. citizens in the United States.

On the separation-of-powers issue, the court emphatically rejected (8-1) the government's further assertion that the executive branch had exclusive domain over that citizen in detention.

In rejecting that claim, which is the closest thing the court has yet addressed related to Bush's sweeping claims of exclusive Article II war powers, the Hamdi plurality said: "Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

The Toensing piece, of course, is relevant to the policy issue of how FISA might be amended. It is no justification for breaking the law just because it was not amended. Having reminded ourselves of this elementary distinction once again, consider the policy issue.

My own feeling is that when addressing such practical problems as Toensing raises, it is best to consider practical solutions. We are not required to scrap the whole notion of legal standards and checks-and-balances.

What is most problematical is the standard of "probable cause," which happens to be hard-wired into the Fourth Amendment. I do not accept the argument that technology requires us to abandon such principles.

Going forward, if it is not possible to write down language articulating substantive limits and judicial review, then we are in trouble. A FISA amendment should be able minimally to do three things: 1) achieve the security objective; 2) pass constitutional muster; 2) be enactable politically.

Just trying to legitimize the de facto status quo -- as described by the administration -- would require language that said something like this: For the duration of the war on terror referenced by the 2001 AUMF, the President shall have authority to conduct foreign-intelligence surveillance without a warrant whenever, at the sole discretion of the President or his designees, there is a reasonable basis to believe a person in the United States is communicating with a foreign terrorist group outside the United States.

That is sweeping language indeed. I doubt that such a provision could pass the three tests above. I am not at all ready to endorse it myself, because it contains absolutely no check on the operation of executive power. It also is completely open-ended, as there will never be a ceremony on a battleship marking the end of this war on terror.

However, I do expect that Congress will seek a compromise that grants some form of augmented authority to the President, while making clear that the 2001 AUMF itself was not the blank check Bush claims. It will not be an easy matter to resolve.

The biggest hurdle these lawsuits face is on the procedural question of standing, because of the Catch-22 that no plaintiff can even prove he was surveilled because the government won't say. So matter how many innocent parties had their communications intercepted without warrants, they can't prove standing to sue.

Doesn't standing require real damages?

In law, standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged. For example, a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that the plaintiff is (or will be) harmed by the law. Otherwise, the court will rule that the plaintiff "lacks standing" to bring the suit, and will dismiss the case without considering the merits of the claim of unconstitutionality.

The Supreme Court of the United States has stated, “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975).

There are a number of requirements that a plaintiff must establish in order to have standing before a federal court. Some are based on the case and controversy requirement of the judicial power of Article Three of the United States Constitution, § 2, cl.1. As stated there, “The Judicial Power shall extend to all Cases . . .[and] to Controversies . . .” The requirement that a plaintiff have standing to sue is a limit on the role of the judiciary and the law of Article III standing is built on the idea of separation of powers. Allen v. Wright, 468 U.S. 737, 752 (1984). Federal courts may exercise power only “in the last resort, and as a necessity.” Id. at 752.

Constitutional requirements

There are three constitutional standing requirements:

1. Injury: The plaintiff must have suffered or imminently will suffer injury - an invasion of a legally protected interest which is concrete and particularized. The injury must be actual, imminent, distinct, and palpable, not abstract.
2. Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court.
3. Redressability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

Prudential limitations

Additionally, there are three major prudential (judicially created) standing principles. Congress can override these principles via statute, but Congress cannot change the three constitutional standing requirements.

1. Prohibition of Third Party Standing: A party may only assert his or her own rights and cannot raise the claims of a third party who is not before the court; exceptions exist where the third party has interchangeable economic interests with the injured party, or a person unprotected by a particular law sues to challenge the oversweeping of the law into the rights of others.
2. Prohibition of Generalized Grievances: A plaintiff cannot sue if the injury is widely shared in an undifferentiated way with many people. For example, there is no federal taxpayer standing, as complaints about the spending of federal funds are too remote from the process of acquiring them. Such grievances are more appropriately addressed in the representative branches
3. Zone of Interest Test: There are in fact two tests used by the United States Supreme Court for the Zone of Interest
1. Zone of Injury - The injury is the kind of injury that Congress expected might be addressed under the statute. Federal Election Commission v. Akins, 524 U.S. 11 (1998)
2. Zone of Interests - The party is within the zone of interest protected by the statute or constitutional provision. Allen v. Wright, 468 U.S. 737 (1984).

Recent development of the doctrine

In 1984, the Supreme Court reviewed and further outlined the standing requirements in Allen v. Wright, a major ruling concerning the meaning of the three constitutional standing requirements of injury, causation, and redressability. Allen, 468 U.S. at 752.

In the suit, parents of black public school children alleged that the Internal Revenue Service was not enforcing standards and procedures that would deny tax-exempt status to racially discriminatory private schools. The Court found that the plaintiffs did not have the standing necessary to bring suit. Id. at 755. Although the Court established a significant injury for one of the claims, it found the causation of the injury (the nexus between the defendant’s actions and the plaintiff’s injuries) to be too attenuated. Id. “The injury alleged was not fairly traceable to the Government conduct respondents challenge as unlawful.” Id. at 757.

In another major standing case, Lujan v. Defenders of Wildlife, the Supreme Court elaborated on the redressability requirement for standing. 504 U.S. 555 (1992). The case involved a challenge to a rule promulgated by the Secretary of the Interior interpreting §7 of the Endangered Species Act of 1973 (ESA). The rule rendered §7 of the ESA applicable only to actions within the United States or on the high seas. The Court found that the plaintiffs did not have the standing necessary to bring suit, because no injury had been established. Id. at 562. The injury claimed by the plaintiffs was that damage would be caused to certain species of animals and that this in turn injures the plaintiffs by the reduced likelihood that the plaintiffs would see the species in the future. The court insisted though that the plaintiffs showed how damage to the species would produce imminent injury to the plaintiffs. Id. at 564. The Court found that the plaintiffs did not sustain this burden of proof. “The ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Id. at 563.

Beyond failing to show injury, the Court found that the plaintiffs failed to demonstrate the standing requirement of redressability. Id. at 568. The Court pointed out that the respondents chose to challenge a more generalized level of Government action, “the invalidation of which would affect all overseas projects.” Id. This programmatic approach has “obvious difficulties insofar as proof of causation or redressability is concerned.” Id. From: Standing (law)

Even if telecoms of the plantiffs were surveillanced, in the absence of any real injury, there would be standing due lack of damages.

My suggestion was that, if Bush seriously believes in the merits of his legal arguments, DOJ can cooperate in getting past the barrier of standing by stipulating that one or more plaintiffs were surveilled. Gonzales has essentially conceded that much anyway in his briefings -- some citizens were surveilled without warrants -- without referencing anyone in particular. The DOJ white paper makes essentially the same arguendo assumption for purposes of presenting its arguments on the legal merits.

It is not unheard of for two parties to settle procedural matters by stipulation, when both parties have an interest in getting the merits decided by the court.

And NSA'a "interest" is exactly what? "Full disclosure" of "combat intelligence" gathering "sources and methods", perhaps?

So in a criminal case, your advise to your "innocent client" would be to give the police a complete and full closure, and unfettered access to all his "houses, papers, and effects" in the "interest" of getting a objective, fully infomed court hearing of his claim of innocence. The police and prosecutors would love you.

As Forrest Gump's mom said: "Stupid is as stupid does!"

Of course, without "warrant" is not the same as "unreasonable and lacking probable cause", is it?

Only the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures - is Constitutionally guaranteed. Even that great civil libertarian, Janet Reno, had no problem with reasonable "warrantless searches".