The NSA Surveillance Program and Judicial Review:
Over at Balkinization, Marty Lederman has a post considering how the legality of the NSA surveillance program might get before the courts. My own pet theory is to watch the FISA Court: the FISA court judges have been briefed on the program, and I wouldn't be surprised if they issue an opinion at some point giving their take on the legal issues presented. There are some procedural barriers to doing that -- for example, it's not clear to me that the FISA statutory suppression remedy applies to FISA application submissions -- but a decision akin to the FISA court's 2002 opinion isn't out of the question. I'm not sure it's likely, but it's at least a possibility.
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
I'm not going to be satisfied with this suggestion, and I hope Congress and the American people won't be either. I'm updating my "Who's Watching the Watchers?" post regularly as the push for more oversight develops under the National Security Act of 1947.
Cheers.
regarding an advisory opinion (of sorts) by the FISA court, such an opinion would have no teeth if it would be constitutional at all. if you have no jurisdiction, personal, that is, no plaintiff, no aggrieved party, then i can't imagine the courts just ruling on something as being illegal in a vacuum. that's akin to a federal court issuing a ruling on unfair police practices prior to any complaint having been filed, even though the act already allegedly occurred.
Why would the Commander-in-Chief want to deal with an "enemy agent" whose CCC intercepts indicates is a member of a "5th column" in this country plotting acts of sabotage as a "terrorism/criminal matter" during the time of war? I believe recent data from Pakistan indicates that the CiC has elected to deal (most effectively) with "non-uniformed enemy combatants" with Hellfire Missiles fired from Praetor Drones. Why would he decide to change this most effective combat tactic just at the time when it is appears to be beginning to work?
Query: If the President relinquishes his "authority" to determine and execute the most effective combat tactics at the time of war to the Courts, does that make the Chief Justice of the Supreme Court the de facto Commander-in-Chief?
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.
As Prof. Kerr points out, this controversy right now is being litigated in "the court of public opinion." I claim standing there, so I will make this observation:
It also would be much easier to get a viable test case if the government would voluntarily waive procedural objections, possibly stipulating for purposes of standing that some plaintiffs were surveilled. Such cooperation is not unheard of when both parties have an interest in getting the merits of a case resolved.
If Bush had the courage of his legal convictions and his actions have been legal, he could move to let the courts vindicate his claims.
Anyone who thinks that would happen, raise your hand.
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.
Regarding congressional action, I have some speculation of my own:
Congress could act to clarify its intent that the AUMF did not authorize this surveillance. If Bush defied that, we would have the constitutional crisis some seem to desire, but few really have the stomach for. Bush could back down under protest, with the face-saving story that this was all just a good-faith disagreement between lawyers for the two branches.
I think the more likely scenario is that there will be some sort of compromise in Congress, that actually does authorize some degree of augmented surveillance. I don't know what the shape of that would be, or even what would be constitutionally permissable.
I noted that Sen. Graham hinted broadly during the Alito hearings that some such compromise is desirable. I would watch him closely during the upcoming Judiciary Committee hearings. He and other concerned Republicans may try to broker such a deal. I hope and expect that the hearings will not break down purely along party lines.
In additon to the hearings themselves, the other important congressional venue is the looming deadline to renew the Patriot Act.
This legislation is the natural vehicle for taking action on this matter, I think. Senators from both parties indicated in late December that it will be reconsidered in light of the NSA revelations. The way the Patriot Act deadline is now, the sunsetted provisions will expire before the NSA hearings are even finished. Watch that space.
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.
The war in Iraq was authorized by a different resolution, which came much later than the 2001 AUMF. The AUMF was specifically directed at terrorists groups responsible for the 9/11 attacks.
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.
"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?"
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.
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.
I for one hope that Congress is willing to confront the President over signing statments. If the President thinks a law is unconstitutional he should veto it or challenge it in court, not try and circumvent it.
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.
A variation on that theme is already is being advanced, as this post by A.S. in the other thread demonstrates:
I expect this off-the-record assertion to be restated on-the-record by some adminstration allies in Congress.
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)
With respect, your policy criteria fails to address the core issue that surveillance itself fundamentally infringes the rights of the surveilled, no matter what use is made of the information.
It is not true that I am not harmed if you spy on me and just don't charge me with a crime, maintain a growing dossier or tell many people about it.
Then there is that annoying language in the Fourth Amendment, and its subsequent interpretation by the courts. I think honoring that intent is also an important policy criterion.
There is a compelling interest, and constitutional requirement, to ensure that the surveillance at least is not "unreasonable."
Whether or not such surveillance always requires a warrant is legally arguable, perhaps. It certainly is not a simple question. But what does seem pretty clear is that if a warrant is required, the Constitution requires "probable cause" of something.
So even if we were all happy to say Congress should authorize some very sweeping surveillance, it would be hard to accomplish constitutionally.
Nor would I want the courts out of the picture. When civil liberties are in play, giving the executive unchecked authority is inherently a bad idea. This administration in particular adopts a very aggressive legal stance in defining its own powers. A future administration could be even worse, even without the second coming of Richard Nixon or J. Edgar Hoover.
To the extent that the problem with FISA warrants is that the paperwork is too burdensome, and cannot be accomplished within 72 hours, I think those problems can be addressed by such practical cures as extending the time, applying better automation or hiring more lawyers. They are in plentiful supply.
If the problem is purely technical -- NSA can't intercept the same set of international calls it has historically been able to do from satcom links because that set of calls is now carried on fiber cables -- there may be some cure for that by tweaking the FISA definitions.
My surmise is that these are not the core problem, which probably is that the surveillance being done cannot meet a probable cause standard.
Bush and his spokesmen keep saying today that the only people being surveilled are those bad people who are talking to known terrorists overseas. I think if they really knew that, getting warrants would be no problem. Rather, the NSA seems to have been conducting a dragnet, a fishing expedition.
I am as interested as anyone with making changes as appropriate, but I do not buy the proposition that the post-9/11 is so radically different from the rest of our recent history that we must jettison most of FISA. The Cold War was real, too. There were real spies among us. People died. All of us were threatened with annihilation. FISA worked.
BTW, I rather suspect you might have a different perspective if you had an Arabic name and family, professional or non-violent political contacts abroad.
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.
DOJ narrowed the focus very narrowly. You should have read the brief:
Apparently you and many others are concerned about the "freedom" to surrepticiously contact al Qaeda, declared enemies who've vowed to kill Americans and destroy the nation. As both a legal and political matter, there isn't a leg to stand on.
You left out of my quote "even if just in error." And as it turns out, the government is not infallible.
Courts don't issue warrants for wiretapping (criminal domestic) saying 'You can listen to conversations about crime, but not about pizza orders' The argument is specious.
Conversations with al Qaeda 'even just in error' are not protected. It doesn't matter if WWII German or current al Qaeda agents are telemarketing for donations to an orphan's fund; they are operating as enemy agents, the communications are part of an enemy action.
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.
Your hypothetical does not measure up to the reasonable standard. Because it could be wrong, you don't surveil any calls ? The problem with such hypotheticals, of which there is no substantiated accusation of ANYONE being harmed in such a situation, is you make protecting this country that much harder. It is a throw out the baby with the bathwater reading that you put forward.
There are enough laws in place that should such an abuse occur, where the executive branch exceeded its authority and surveilled for reasons that had nothing to do with terrorism, you would have remedy through the courts.
It appears the legal community, for the most part, has left history, common sense and reason at the door in favor of parsing legalese and semantic manipulation. They disavow the 'fundamental' role of intelligence gathering in fighting a war. Every war has encompassed this fundamental, and never has it been subject to the rules of a committee, the Founders understood this, the need for quick action and the ability to do so resides in control by one hand, not many.
The legal argument against is propped up by a fraudulent claim of 'unprecedented' expansion of executive branch powers. There is no historical documentation to back up such a claim, in fact, there is a much stronger argument to be made for FISA being an unprecedented expansion of legislative branch powers and an unconstitutional encroachment of the executive branch powers in war time. So many are willing to dismiss or minimize Sealed Case, yet it is the ONLY case where FISA has been singularly been brought before the Courts and been challenged and had their authority rebuked. As such, its ruling, which was unchallenged and unappealed, will carry much weight as precedence, regardless of the claims of unclear dicta.
Some seek to downplay the AUMF for not specifically enumerating executive authority authorized, but if one reads past authorizations and declarations of war, the wording in the AUMF goes much further in delegating authority.
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When you compare the language of the above to the AUMF (below), claims of lack of specificity in the delegation of authority to the executive branch do not hold a solid legal foundation.
The inclusion of 'he determines' is a delegation of authority. The argument against also hinges heavily on not accepting the different type of conflict the War on Terrorism is and the tactics used by terrorists. The fact that some of legal academia can so divorce itself from the application of reality in the name of idealistic or politically motivated interpretation is astounding.
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.
I think it is a delegation of authority to determine which "nations, organizations, or persons ... planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001," just like the resolution says.
The operative authority to "determine" is the authority to decide which nations, organizations or persons fit that description. It says and implies nothing about expanding existing authorities to gather information, or bypass existing criminal and civil law.
It is common for laws and regulations to delegate such authority to "determine" various questions to some officer in the government. In no way does that language by itself expand that officer's authority to issue subpoenas, compel testimony, execute searches or perform surveillance just because that officer thinks the information might be relevant to their decision.
That authority must be explicit, and in fact was already explicitly defined in laws such as FISA. That law was enacted precisely to govern the means of acquiring intelligence about foreign powers (including terrorist organizations) and their agents in the United States.
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.
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
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.
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.
Trust, but verify.
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:
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.
And, of course, one of the absurdities in KMAJ's line of argument is that the Republican-controlled Senate is going to be conducting hearings on this matter (perhaps in two different committees) as a result of bipartisan requests.
Of course, those hearings may yet determine that the President was acting legally. But the idea that merely investigating is "partisan political gamesmanship" is absurd.
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:
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:
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:
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.
I thank you for the clarification, and accept your apology about the use of the word "irresponsible."
On the question you continue to raise of whether in general this is a partisan issue, I disagree that is so.
It is true that there have been more Democratic voices than Republican voices questioning the legality of the NSA program and seeking an investigation. But it is not only Democrats who have done so. Judiciary Chairman Specter, for example, is a notable exception to your generalization. Citing "grave doubts" about the program's legality, he rightfully said he will hold oversight hearings.
It is certainly true that the White House political line last week from Scott McClellan and Karl Rove showed a palpable eagerness to frame this issue as one of "Democrats are soft on terrorism" (my paraphrase).
One related area where I do decry Democratic partisanship is how the general controversy of Bush's reach for executive power and the the specific controversy of his NSA surveillance program have been used in an attempt to tar Samuel Alito as sympathetic to either.
I favor Alito's confirmation, and I do not believe he is inclined to acquiesce to the general or specific positions advanced by Bush.
I thought Alito fairly convincingly disassociated himself at his hearings from the radical theories Bush and his advisers have advanced to support their assertion of executive power in general. On the NSA matter, while Alito scrupulously avoided saying what he would decide, he laid out an analytical framework that I think is a roadmap for rejecting Bush's case.
Put more succintly, I think the President's positions are weak on the merits, and I trust the courts to see that. I stop short of a firm conclusion today on the factual and statutory issues. On the constitutional issues raised by the President's assertion of exclusive powers, I expect that Alito and an overhelming majority of the justices will reject that assertion if it is ever presented squarely before them.
When you say, "Personally, I think this should be decided by SCOTUS," I agree.
Now would be a good time to write the President, asking him to direct the attorney general to waive all procedural issues in pending civil litigation -- if possible stipulating that some plaintiffs were surveilled and thus have standing to sue -- so that the merits can be vindicated.
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.
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?
I believe the President who signed the Foreign Intelligence Surveillance Act of 1978 was President Jimmy Carter. Highlights of President Carter's outstanding contributions to the National Security of the United States included:
1. Insuring that the mullahs took over control of Iran from our closest ally in the region, the Shah.
2. After assuring that Ayatollah Khomeiniwould would lead Iran, allowed the capture of the US Embassy and hostage taking of US Staff that didn't end until Ronald Reagan took office.
3. The Rescue Operation - "Desert One" - run directly from the White House that ended in disaster in the Iranian desert in 1980, has been renamed by US Special Forces types: "The Jimming Carer Desert Classic" in honor of the CinC's contributions to the outcome of that mission.
4. Canceled B-1 &neutron bomb programs.
5. Assured the Communist Sandanista takeover of Nicaragua from long-time US ally, Anastasio Somoza, by refusing to ship the Nicaraguan National Guard the "bought and paid for" weapons and ammunitions purchased from the US.
6. Despite popular opposition from the American people, promoted having America's Canal in Panama turned over to Panamanian dictator and drug dealer, Manuel Noriega.
7. Sold out our long-time Asian ally, the Nationalist Chinese government on Taiwan, in order provide full diplomatic relations with the Communist People’s Republic of China in 1979.
8. Ineffectually attempted to stymy Soviet invasion of Afghanistan by embargoing wheat sales to Russia (bankrupting many US wheat farmers) and boycotting the Summer Olympics (frustrating the careers of many US athletes who had spent their lives preparing to "go for the gold").
9. After leaving office, Carter maintained his active roll in US National Security by negotiating the deal with North Korea for the Clinton Administration that allowed NK to continue clandestine work on their Nuclear Weapons Program while receiving billions in fuel and food aid from the US, SK, and Japan - to insure that the NK Army could run its tanks and that its soldiers didn't strave to death, as millions of North Korean civilians did.
Personally, I believe Carter's National Security team most likely wrote the FISA. It was, after all, the Democrats revenge for the Nixon White House's spying on Democrats at the DNC's Watergate HQ.
There are many reasons suggested for the Watergate break-in. Of the two most likely, one has a "electronic foreign intelligence" nexus - the tapping of DNC HQ phones to intercept calls from illegal foreign DNC contributors, like the People’s Republic of China; Manuel Noriega; Nicaragua's Communist Sandanista; and Angola's Cuban supported Communist regime.
Personally, I believe the other popular reason is most likely. That is that "Watergate" was "cooked up" by John Dean, whose wife "to be" apparently had worked as a "call girl" for entertaining DNC "high-roller" out of town contributors, when they visited DC. Dean wanted the "Plumbers" to steal records of his future wife's DNC financed "dates" to protect his standing in the Nixon Administration. After discovery, Dean turned "whistle-blower", selling out Nixon, covering up his own involvement. He would have had a great future in covert ops at the CIA, had his career path taken him that direction!
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"!
The legal landscape in WWII was quite different because Congress had not yet legislated in the field of foreign intelligence surveillance. FISA did not yet exist. If FISA had been in place at that time, Roosevelt would have been bound by it.
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.
Really? It was not decided until Katz in 60s that "Wire-tapping", and "Electronic Surveillance" were a "breach" of the newly discovered "right of privacy", and thus not falling under the "probable clause warrant" requirement of the 4th. During WWII, the Constitution, per the Supremes in Olmstead, did not consider "wire taps" or "electronic eavesdropping" to be "unreasonable searches and seizures".
Is it your position that Congress can modify the Constitution by merely passing an Act, thus ignoring the Amendment requirements of Article V?
If so, is Article V really necessary anymore, seeing how everyone but the President can amend the Constitution by mere majority vote in Congress and a 5 of 9 vote of the Supremes?
If the Framers anticipated they were thusly empowering the Judiciary and Congress, why did they even put Article V in the Constitution at all?
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.
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.
Actually, as with "privacy", nowhere does the Constitution provide a "freedom of association". What it does provide is the "right of the people peaceably to assemble, and to petition the Government for a redress of grievances", to wit:
I doubt the Framers envisioned "enemy agents" conspiring with their controls in the Hindu Kush to murder and destroy "the People's" property to fit into the definition of "peaceable assemble". The purpose of this section of the 1st Amendment is strictly political, as it applies the assembly right to the right of petitioning the government "redress of grievances".
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.
Another poster has helpfully pointed out that not only was FISA not enacted at the time of WWII, but landmark rulings such as Katz v United States had not yet been handed down. Which only buttresses my point that the legal landscape at the time of WWII was quite different than it is today.
Of course, the Youngstown case also had not been decided. Since that case, jurisprudence is more clearly informed that executive power in wartime is far from exclusive.
Hence it is quite misleading to suggest that because Roosevelt didn't have to get warrants in practice, Bush doesn't have to get them as a matter of law.
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
The threat is more serious because of the technological advances in weaponry that can be employed. Ergo, the 'enemy within' is a more serious threat. To not consider that very relevant factor results in a skewed answer.
As far as stateless actors, can you cite even one war where the stateless actor was the primary adversary ? That is the very real and very relevant difference.
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.
New technology notwithstanding, I still think it is absurd to claim that our nation as a whole faces a greater threat to its survival than it did during the Revolutionary War or the Civil War (or the War of 1812, I might add).
Weapons of mass destruction do in fact multiply the destructive abilities of small groups, making them more dangerous than they would have been in the past. But actual armies can wreak "mass destruction" the "old fashioned" way--through sheer numbers (think of the burning of the capital in the War of 1812, Sherman's March, and so on). So, while it is plausible that modern technology has made small groups potentially as dangerous as conventional armies operating on US soil, the idea that they are somehow fundamentally MORE dangerous than entire armies is pretty outlandish.
In contrast, if you combine both factors--weapons of mass destruction with mass numbers--you arguably do get a truly unique threat, one which is potentially greater than anything else the United States has ever faced. That, of course, describes the threat we faced in the Cold War.
On stateless actors: I'm not sure what you mean by a "war" against stateless actors (in some sense that term is an oxymoron, or at least merely a metaphor). But the most notable example of stateless actors against whom we conducted extended military operations over time would probably be pirates.
Interestingly, there is also a pretty good parallel between our efforts in Afghanistan and Iraq, at least insofar as they are anti-terrorism efforts, and our early 19th Century operations on the Barbary Coast. We even began an operation to bring about "regime change" in Tripoli, with some initial success, but it was terminated when we resoled the matter through diplomacy.
On case law:
A couple minor observations. First, FISA was not "challenged" in Sealed Case. Indeed, the Court applied FISA in Sealed Case. I suspect what you are referring to is the infamous dictum, but as we have frequently noted, that line was unrelated to anything actually going on in that case (indeed, it was a complete non sequitur).
Second, as usual, it is important to distinguish between "inherent" powers and exclusive powers. Many cases have upheld the President's inherent power to conduct surveillance for foreign intelligence purposes. But none of those cases--besides, perhaps, the dicta in Sealed Case--addressed whether that power was exclusive.
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:
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:
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:
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:
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 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."
For the most part, she obviously sets up a false dichotomy: one can both criticize the President for violating the law and recognize that FISA may need to be amended in light of new developments. So, the actual key part of her argument is her the supposedly "valid" reasons for the Administration not going to Congress to amend the law.
One reason she cites is that notion that Congress may not have given the Administration what it wanted. It is hard to take that argument seriously--the "danger" that Congress will not entirely agree with the President is obviously not a reason for the President refusing to obey the law and refusing to seek changes in the law.
A second reason she cites is that it might have taken a long time to get a change. Of course, that is hard to reconcile with the USA-PATRIOT Act (which, contrary to her implication, did a lot more than change two words in FISA).
A third reason she cites is that having public debates about the law might provide useful information to terrorists. But, of course, public debate about the law is fundamental to the parliamentary and democratic process, and in our system of government the citizens have a right to know their legal rights and to petition their government for changes to the laws as they see fit. So, this gets back to the general issue: whether this threat is somehow so grave and so different that it requires us to abandon the fundamental system of government that has served us so well.
Finally, she reasons that asking for amendments to FISA would undermine the President's exclusive authority argument. She is probably right about that, although by no means is it clear that would be a bad result for our nation. But in any event, given that the President did in fact ask for amendments to FISA in the USA-PATRIOT Act, that damage was already done.
But I do think Toensing's argument is useful in the sense that like the White Paper, it eventually lays bare exactly what is at stake in this issue. In other words, although she initially tries to present the false dichotomy, she ends up implicitly conceding that what is really going on here is an attempt to cut Congress out of the relevant lawmaking process entirely. And hopefully Congress understands that is what is really at stake.
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.
Sorry, I missed this detail in my earlier reply.
I think you misunderstood my suggestion. I was not talking about a lawsuit between Congress and the executive, but the private lawsuits that recently have been filed, most prominently by the ACLU and various co-plaintiffs, or some future variant.
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.
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.
If Bush were serious about seeking vindication in court, the administration could help facilitate such a test case. I predict they will do no such thing, because they really don't have much faith in the merits of their case.
Doesn't standing require real damages?
Even if telecoms of the plantiffs were surveillanced, in the absence of any real injury, there would be standing due lack of damages.
Exactly! Maybe they can bring "Slick Willie" out of retirement, along with his band of merry men, including AG Janet Reno (the Waco "buck stops here" CiC with the blood of over 80 KIA on the strength of a "search &seizure warrant based on perjured "probable cause" affidavits). Of course, the "Slickmeister" signed an Executive Order that allowed AG Reno to determine if a court warrant was really necessary for B&E "search and seizure" of US citizens domicile, as well as "electronic surveillance", to wit:
Hmmm! Is having one's cell phone number found the harddrive of an al Qaeda Director of Operations' Note Book Computer or their Blackberry Speed-Dial Directory sufficient "probable cause" that the target might be "a foreign power or an agent of a foreign power"?
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".