Preview of Gonzales Testimony:
Time Magazine has a preview of the Attorney General's Senate testimony on the NSA domestic surveillance program. I'm planning a couple of NSA-related posts for next week, and hope to respond to the Gonzales testimony on Monday, as well. All yours for one great price.
By what mechanism could the FISA court issue an advisory opinion?
Your coverage of this, along with Marty Lederman, has been great.
With all that Gonzales plan on saying, I'll be very interested to see if he deals with his prior responses to Feingold's questions about warrantless surveillance. Your view on Gonzales's prior testimony would also be welcomed.
I urge everyone to visit the site of Glenn Greenwald (glenngreenwald.blogspot.com),a lawyer who is working with Senate Judiciary staff members to develop a list of questions to pose to our AG during the hearings. As some may know, Glenn Greenwald was the blogger who first wrote about the 1992 NSA/Baker matter, which has now reached the MSM (today's opinion page in the NY Post) and which spread like wildfire across the blogosphere. No doubt it will be mentioned at the hearings. As Orin was one of the first, if not the first, to provide a detailed analysis of the legality of the warrentless spying matter, I hope Orin will have time to look over and comment on the ten questions Glenn has developed which he lists on his site.
As an aside, this seems, to my limited knowledge, to be the first time that an important story which originated totally outside of the MSM has come to such prominence. A big victory for the blogosphere!
Glen Greenwald will be on CSpan tomorrow morning from 7 to 8:45 AM debating a lawyer from the Bush administration on Washington Journal, a good opportunity to get a preview of both sides of the argument.
The article quotes Gonzales at one point:
"No communications are intercepted unless first it is determined that one end of the call is outside of the country and professional intelligence experts have probable cause (that is, 'reasonable grounds to believe') that a party to the communication is a member or agent of al-Qaeda or an affiliated terrorist organization."
Later, the article states:
"Lawmakers in both parties have asked why the Administration could not use a FISA provision allowing petitions to the court after monitoring has begun. Gonzales says there 'is a serious misconception' about those provisions, and that the administration could not begin surveillance 'without knowing that we meet FISA's normal requirements.' He said a FISA application 'involves a substantial process' that 'consumes valuable resources and results in significant delay,' when what is needed is 'the maximum in speed and agility.'"
I can't figure out how to reconcile these statements. If they have probable cause that a party to the communication is an agent of a foreign power like Al Qaeda, then they should already know that they could get a FISA order, and so the AG could issue an emergency order.
So, like Harman I am puzzled about why the Administration couldn't use FISA ... unless, of course, they were afraid the FISC would disagree about whether or not they had probable cause.
Using your framework, it seems like Gonzales is providing a mix of rationales (1) and (3). But to reframe my question, I don't understand why (1) would be true if they really had the probable cause that Gonzales claims is a condition precedent.
It seems to me that the phrase "probable cause (that is, 'reasonable grounds to believe') that a party to the communication is a member or agent of al-Qaeda or an affiliated terrorist organization" confuses two different standards. "Probable cause" means one thing; "reasonable grounds to believe" means something else.
I think it's pretty obvious what is happening. Gonzales is lying to cover for George Bush's illegal activities. They (the adminitstration) has done nothing but lie about this program since its inception. Why should they stop now? If you believe that they are telling the truth about the scope or the extent of the program then you are just hopelessly naive.
Why were you so willing to believe that Clinton was lying when he said he didn't have sex with that woman but when this administration has already been caught in several bald-faced lies about this program you believe that they are being honest about it now or that Gonzales will be honest under oath? He will either stonewall, be deceptive, or lie outright when confronted with questions from Congress and will probably get away with it.
I may be wrong, but I thought one of the standard definitions of "probable cause" in the criminal context was "reasonable grounds to believe" (eg, probable cause for an arrest might be "reasonable grounds to believe the suspect has committed a crime", and probable cause for a search could be "reasonable grounds to believe the place to be searched contains contraband or evidence", and so on).
This is distinct, I think, from the lower standard of "reasonable suspicion", which would require "reasonable grounds to suspect" rather than a "reasonable grounds to believe". However, I invite someone with more expertise in this area to correct me.
http://www.nationalreview.com/pdf/specterleahy.pdf
Also this letter from Bryan Cunningham who worked for the CIA, NSA, and Justice Dpartment under Bush I and Clinton:
http://www.morgancunningham.net/downloads/article_18.pdf
Suppose you have only 30 minutes to make the interception in?
How do you get a piece of paer up through NSA and zDOJ to Gonzales for approval in that time?
Remember that Gen. Hayden said the actual decisions were being made by the shift supervisors implying a need for considerable speed.
Then they have 72 hours to get the warrant. The only obvious conclusion is they don't have "reasonable suspicion" or "reasonable cause" or reasonable anything. They are just monitoring, most likely with the help of sophisticated datamining technologies that they have explicitly told not to use, calls for phrases or keywords. Any other explanation just doesn't make sense.
The administration just assumes we were all born yesterday. If your kids made up these stories, would you believe them? The story doesn't even pass the laugh test. It makes no sense at all.
Speaking of Pat Roberts, whatever happened to the 2nd half of the report on the 9/11 intelligence failures he promised us several months ago? Remember how shutting down the Senate was a partisan stunt since the report was going to come out "very soon" anyway?
The "probable cause" definition you cite does seem to be common in the criminal-law context. (I am not a criminal law expert, either, so I claim no final authority on the matter.)
I had the impression, which I believe I got from the 1/23/06 NYT article, in which Gen. Hayden was quoted, that the definitions in the FISA context are different:
(I do not rule out the possibility that the NYT was wrong.)
Since the "probable cause" under FISA is a special context -- not of criminal activity but of someone being an agent of a foreign power -- I think what matters directly is how the term has been defined in FISC case law. AFAIK, we do not know anything about those cases.
So at this point I remain confused, and slightly suspicious, when officials who parse their words carefully use such terms.
But Cunningham seems aware of this problem on some level, and consequently at least provides some arguments in favor of essentially relitigating the rule in Category 3. He basically wants to claim that if Congress could make laws about electronic surveillance, and if the President had to obey those laws, then the separation of powers would be extinguished.
People here have offered such arguments before, and I always find them very interesting. I wonder what they think "separation of powers" means outside the war context? In other words, in other contexts, does saying that Congress can make the laws and the President has to obey those laws extinguish the separation of powers?
Of course, the answer is no. What is really going on is the exact opposite: in certain areas, the President wants to exclude the other two branches of government, rather than allowing them to play their traditional roles. So, he is the one who wants to alter the conventional separation of powers in those areas, not Congress. But somehow, in their heads, it makes sense to them to say that the separation of powers can only be protected if all the powers--legislative, executive, and judicial--are concentrated in the President's hands.
One more specific irony in Cunningham's letter: in what I take is his attempt to present a parade of horribles that would result if Congress could actually pass laws about military matters (you know: what the Constitution says Congress can do), he includes an odd hypothetical about Congress foreclosing the President from holding court martials.
Of course, FISA does not foreclose the President from conducting electronic surveillance, but it does require him to follow certain procedures. Interestingly, mandatory procedures for courts martial have always been a part of the UCMJ and its predecessor, the Articles of War.
So, I think Cunningham is right to raise this issue, but I think he has unintentionally rendered his own argument, and not the opposite argument, absurd. On his view, it would seem that Congress could not even constitutionally establish mandatory procedures for courts martial, for to do so would be to impair the ability of the President to conduct military affairs. And yet there is essentially no doubt that the Founders believed that they were giving Congress the power to establish such laws.
In general, if taken seriously, the Roberts/Cunningham(/Yoo/Gonzales/Bush/etc.) view should indeed apply to the UCMJ, the McCain Amendment, international treaties, and just about any other law that the President deemed inconvenient to the performance of the armed forces. Again, I can only hope that the (rest) of Congress is paying attention to these arguments--although my count of the members of Congress who might care to protect the actual separation of powers in the Constitution is down by one already.
But that is precisely what I find puzzling. Gonzales apparently wrote: "No communications are intercepted unless first it is determined that one end of the call is outside of the country and professional intelligence experts have probable cause (that is, 'reasonable grounds to believe') that a party to the communication is a member or agent of al-Qaeda or an affiliated terrorist organization."
I take it you are suggesting the problem is that it may be an intelligence officer in the NSA, and not the AG himself, who is making that determination. Plausibly, FISA would in fact require that officer to pick up the phone and call the AG. I don't think paper has to immediately change hands, but I do think the AG would have to give the order. He would also then have to inform a FISC judge.
So, is this really all about the AG (and maybe some FISC judges) getting too many late night phonecalls? And why exactly--if this was really the problem--couldn't it be fixed with some minor change to FISA? Was a better night's rest for the AG really the grand secret that needed to be kept from Congress in the name of keeping the terrorists in the dark?
Maybe it is that trivial, but I somewhat doubt it.
You mentioned Sen. Pat Roberts' remarkable letter that essentially declared FISA unconstitutional.
I thought the letter's reasoning on the constitutional issue was both thin and flawed. My own reaction was posted here.
If memory serves, wasn't the Fisa Review Court dealing with an advisory opinion below, issued in response to some sort of request to change protocol? (Yeah, I am too lazy to check.)
I agree that some of the other things that the Administration has said--including, in fact, the second of the two passages I noted above--imply that the problem leading to the need for this program was meeting the standard for getting a FISA warrant before starting surveillance. And yet, that seems to be contradicted in substance by Gonzales' claim.
So, I might offer one purely hypothetical explanation for all this. You note that the FISC likely has some secret precedents it is following, including on what counts as probable cause under FISA. Suppose that the Administration did not like some of those precedents, and viewed them as overly restrictive. In such a circumstance, they might state that they believed they had probable cause within the meaning of FISA (notwithstanding the applicable precedents), but nonetheless they could not expect to get retroactive approval from the FISC (precisely because of those precedents). So, perhaps that is what Gonzales is actually hinting it.
That would actually make this an interesting three-way separation of powers situation. Given this hypothesis, the initial problem may have been simply that the Administration disagreed with the FISC's interpretation of FISA. So, initially they may just have wanted to disable the courts from performing their classic judicial role (saying what the law is--see Marbury v. Madison).
But, inconveniently, Congress had given them no way to avoid interacting with the courts. So, they ended up having to disable Congress from performing its classic legislative role (making the laws).
And, conveniently, they had a few turks in the DOJ that were ready to tell them FISA was unconstitutional anyway. Of course, Congress might not go along easily with that conclusion, and at the time there was a little matter of reelection--but what Congress and the people don't know can't hurt them, right? And if they ever found out, surely it would be enough to wrap the whole issue in the American flag--enough, at least, to keep a GOP-controlled Congress in line, regardless of the legal niceties involved.
But, as I noted, this is just a hypothetical.
We can start again when a Democrat is elected President and all trust in government is restored.
In Re Sealed Case was an actual appeal of a court order issued by the lower FISC court, which had imposed restrictions on the government. The government appealed, and the ACLU and another amicus were invited to argue in opposition.
I don't see how a case that actually presents the issues of warrantless surveillance ever can ever get started in the first place, since the only thing FISC courts do is to rule on warrant applications.
Is there some mechanism to allow the courts at either level to act sua sponte on warrantless wiretaps? Can the government somehow initiate such a case if it wants to, as the Time article implies?
The FISC judges reportedly were "briefed" a couple of weeks ago on the matter, but I have never seen an explanation of what that meant or what power the judges have if they didn't like what they heard.
In other words, there is an incoming call from a foreign number that is suspect and the NSA wants to listen to it. If they ask the AG to authorize surveilance, and start the 72 hour clock, by then the call will be over.
For those of you who believe that the 72 hour emergency provision would be of help here, please explain how you interpret the relevant statute (50 USC 1805(f)) to allow recording of those incoming foreign calls before the AG authorizes it.
I read the statute specifying that the AG "may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance" to mean that he (or his designate - apparently the NSA director) can authorize starting surveilance before a warrant is issued. But "authoriz[ing] the emergency employment of electronic surveillance" would not seem to me to cover previously acquired information. In other words, it works prospectively, not retrospectively, of the AG's authorization.
Plus note his comment that 'a FISA application "involves a substantial process" that "consumes valuable resources and results in significant delay," when what is needed is "the maximum in speed and agility."' Those who have sought FISA warrants seem to indicate that they take a long time to put together, normally a month or so. Yet, the Emergency Orders provisions (again, 50 USC 1805(f)) appears to require the same paperwork - just within the 72 hours.
In your hypothetical, if the government disagreed with a FISC ruling, they had a lawful course of action, which would have been to appeal the case. AFAIK, there has only been one appealed case, which the government won.
My gut tells me that Hayden was telling the truth when he conceded that the standard for the program was lower than FISA courts allow. We haven't yet seen all of Gonzales' testimony, which I'll bet has some closely parsed gotchas.
When someone parses their words to the point of dissembling, although staying short of perjury, they have lost my trust. I remain suspicious of their words. ("But Sen. Feingold, at my confirmation hearing you didn't mention 'Simon Says' or the AUMF in your question. As you now know, we think the AUMF prevented us from contravening criminal law.")
The program isn't going to be suspended just because it is being run right now by a Republican administration. It is also silly (or said in jest) that a Democrat president would be any more reputable in this matter. Better than half the voters believed this man over the Democratic alternative, and most of them would vote the same way tomorrow.
The program isn't going to be suspended if the Administration has any say in the matter because it appears to believe quite strongly that that program is helping to prevent another 9/11 type terrorist attack. Add to that that the Administration believes that its primary job is to protect the American people in this way. So, they are not going to voluntarily abandon it.
There are consequences if the court, upon consideration of the retroactive warrant applicaton, disapproves it. Not only do the contents of the surveillance have to be destroyed and not used for any purpose, but the court then has a duty to notify the surveilled persons unless the government can show cause not to.
So it seems more than possible that some Dearborn soccer moms would have gotten certified letters notifying them they had been wiretapped.
You'll have to clarify some key details in your hypothetical and explain how they match up with what Gonzales wrote.
For example, you say: "there is an incoming call from a foreign number that is suspect and the NSA wants to listen to it."
But Gonzales apparently wrote: "No communications are intercepted unless first it is determined that one end of the call is outside of the country and professional intelligence experts have probable cause (that is, 'reasonable grounds to believe') that a party to the communication is a member or agent of al-Qaeda or an affiliated terrorist organization."
I'm not sure what you mean by "a foreign number that is suspect", but Gonzales is claiming that we know more than that the number is foreign, and that the number is "suspicious". Rather, he claims that we have reasonable grounds to believe that at least one party to the communication is a member or agent of al-Qaeda.
As you incorporate that description into your hypothetical, keep in mind that FISA as amended by the USA-PATRIOT Act allows for "roving" wiretaps, meaning we can electronically surveil communications to or from an intelligence target subject to a FISA order without first specifying the means or path of such communications and surveillance (eg, a particular phone line, computer, facility, etc.).
So, now what do you think Gonzales is describing?
Having said, that, I'm left with the following question.
Let's say your reading is right, and only the AG or the NSA Director could authorize a wiretap, creating unacceptable delay in the free flowing world of surveillance. That left the administration with two legal avenues to do that surveillance anyway: either (1) push (some would say rend) the envelope of constitutional law to aggregate total unreviewable power to themselves in this area, or (2) push the envelope of statutory construction to find that the AG had at least implicit authority to delegate authority to subordinates to start wiretapping. They chose (1), ignoring the statute ENTIRELY and basically giving Congress the figo.
I find that almost as troubling as my previous sense that they've been telling bald-faced lies about the 72 hour thing all along.
Do you have thoughts about that? Am I missing something?
True, if one really believed in the merits of one's legal views, then one would invite appellate review.
But (hypothetically, of course) suppose this Administration has a more "nuanced" view of their legal position. For example, suppose that they took a Posneresque view of the law and they believed that their policy arguments should push the law in their direction. But suppose that they also had little confidence that two out of three judges on a FISCR panel would be similarly pragmatic.
Further, suppose that they reasoned that an adverse FISCR decision could be more damaging, and certainly more public, than the adverse decisions of the FISC. For example, again, suppose that some young turks in the DOJ were willing to argue that the courts had no business being involved in this matter anyway. Going to the FISCR would make it sound like the Administration thought that the courts should be involved, but bypassing them entirely would be consistent with this exclusive powers view.
And again, perhaps they would reason at this point that what the FISC and FISCR didn't know wouldn't hurt them either. Again, hypothetically speaking of course.
Or more likely not reported at all.
Lurkster
That is why I was careful to leave that as an out. It sounded like it was said in jest, but occasionally, you do hear something like this said in all seriousness.
So, I appologize if I was a little to quick to question the humor, because in my first reading, I did find it humorous.
The problem I have with a person determining whether or not to record a given conversation depending on FISA probable cause is that many of these conversations would be complete before a human could be involved. Indeed, the two 9/10 or so conversations that could not be followed up becausd of Jamie Gorelick's Wall were apparently so short that any human intervention would have missed recording them.
Yet, I will agree, that argument that the AG is suggesting that a human approve surveillance before any recording is done is an easier interpretation of that statement by him.
I really should have posted a :-) afterwards but I was really looking for someone to strongly agree.
Just a bit of humor to lighten up the thread. There are some very dumb Democrats in the Senate, but none stupid enough to recommend cease and desist on the survelliance.
Hmmmm..... I don't think so.
No, I think you are wrong about that. The Supreme Court said that the phrases mean the same thing, at least in a case where the phrase "reasonable grounds to believe" was used in a criminal statute. Draper v. United States, 358 U.S. 307, fn. 3 (1959) ("The terms "probable cause" as used in the Fourth Amendment and "reasonable grounds" as used in 104 (a) of the Narcotic Control Act, 70 Stat. 570, are substantial equivalents of the same meaning.").
Oh come on, we impeached a Democratic president for lying about getting a blowjob. You think that the Congress would let a Democratic president get away with this? (And please don't repeat the Administration lie--including the president in the SOTU address--that Clinton and other presidents did do this.) It's just incredible that the right, that is traditionally so suspicious of the government, is so willing to believe this administration, that not only has proved so untrustworthy, but has managed to screw up almost every endeavor they have embarked upon.
If demanding that the president follow the law is your idea of "stupidity", then I only wish that we had a few more stupid Democrats in the Senate.
As you can see from my subsequent posts, I don't think it is clear that the meaning of "probable cause" in a criminal context is the same as in the FISA context. If you can quote from a FISC case, that might enlighten us on that point.
Why don't you guys just give it up? Bush has been hit more times than Sonny Liston by these trumped up "Impeach Bush" ploys and he's still standing.
If he's breaking the law I'm sure someone will be smart enough to prove it. Nobody comes to mind though I would suspect Lawrence Tribe & a cast of several hundred would wet themselves if they could prove it. Not likely.
I think "relitigating" overstates the case significantly.
I would phrase it thusly: Cunningham provides some argument in favor of seeing whether any other judge agrees with Justice Jackson that when analyzing a situation in which the Executive and Legislative branches are in opposition, you subtrace Congress's power from the President's powers" to see what the President has left.
As far as I am aware, no other court has EVER held that interpretation to be correct.
That's not to say, mind you, that no other court has found the tri-partite analysis useful. Surely they have. But has any other court ever said, "yes, when the two branches are in opposition, the correct analysis is to subtract Congress's power from the President's"? Not that I'm aware of (although I'd be very pleased to have someone inform me of a case!). Heck, under Dames &Moore v. Regan, we aren't even really supposed to use the three categories - instead, we are supposed to use a sliding scale.
As I've said before on these threads, the problem I have with much of the analysis - such as the Cole/Heymann/Lederman/et al analysis - is that it essentially deletes the "Commander in Chief clause from the Constitution. What I'd like to understand from the likes of Cole/Heymann/Lederman/et al is to know if there is ANYTHING AT ALL that Congress cannot regulate with respect to the military? And if there isn't, what is the Commander in Chief clause supposed to mean? Is it completely superfluous? Because if there is nothing that Congress cannot regulate, then Congress never loses in a Category 3 situation, right?
It seems to me that if the Commander in Chief clause has any meaning whatsoever, there must be some independent source of power associated with it - something that Congress cannot intrude on. But the likes of Cole/Heymann/Lederman/et al don't seem to accept that.
Well, I would think that "probable cause" is the same standard in both contexts, it is just the thing the government has to have probable cause for that differs - they have to have probable cause to believe someone is an agent of a foreign power. Moreover, even if the standard is different, I don't see that as any reason to think that "probable cause" and "reasonable grounds" have different meanings in the FISA context when they mean the same thing in the criminal context.
Why not? After all, Congress didn't do a single thing when Clinton flagrantly broke the War Powers Act. But I don't recall any impeachment proceedings over Kosovo.
So I really don't get it - why should Clinton have been permitted to get away with breaking a statute and Bush shouldn't be permitted to get away with this? (Well, I certainly believe that the War Powers Act is unconstitutional, as an infringement on the President's powers as Commander in Chief, just as I believe that FISA would be unconstitutional as an infringement on the President's powers as Commander in Chief if it were interpretted as preventing the NSA program. So I wouldn't advocate impeachment in either case. But what about people who think the WPA is constitutional???)
1) Such a requirement is unprecedented in war. By this logic, Congress could have required the Navy to get the Attorney General's approval before each and every intercept of Japanese communications in the Pacific in WWII. After such approval, the AG would have to go get a warrant within 72 hours. While this sounds like a strange analogy, it is not. Whatever power Congress purports to be exercising here applies as much abroad as at home. If Congress can require such AG preclearance and ex post judicial scrutiny of surveillance of an enemy's communications "captured" in the US, they can also require such preclearance and ex post judicial approval of surveillance of communications captured outside the US. This seems inconsistent with Justice Jackson's statement in Youngstown that Congress cannot deprive the President of command of the Army and the Navy. "Command" of the Navy includes the ability to order the Navy to intercept communications, launch recon. planes, etc., without first asking the AG to make a probable cause determination. See also 40 Op. A.G. 58, 61 (Jackson, AG) (Congress cannot interfere with certain functions of the commander-in-chief, including peacetime troop movements)(quoting Black, Handbook of American Constitutional Law (3d Ed. 1910)).
2) As some have noted, Section 1805(f) requires the Attorney General himself to approve the surveillance, and there has to be an "emergency" which prevents him from obtaining a warrant with due diligence. I see no provision allowing the Attorney General to delegate the power to make such a determination. Indeed, the provision would not even allow the President himself to make such a determination. Only the AG will do. This raises two problems:
A) First, any Attorney General acting in Good Faith would have to take steps to inform himself before making the relevant certification. Unless the Attorney General is awake 24 hours per day, and actually present when, say, the NSA determines that a previously unknown phone in the US may be about to receive a call, it's not clear how the Attorney General will, in fact, be able to make such determinations in time. It would be a felony, under the Statute, for the NSA to listen to the call in question BEFORE the AG actually made his certification. Ex post approval would NOT validate such a decision to listen before the AG makes the certification.
In real life, of course, the AG sleeps. He also travels. Sometimes he has meetings on issues other than national security. So, such a requirement is cumbersome to say the very least. If the enemy is making several calls per day to new numbers, compliance would be well nigh impossible, and not just "burdensome." I believe General Hayden when he says we are in "hot pursuit." No one has offered any proof to the contrary.
B) Second, this Section excludes the President, as Commander-in-Chief, from ordering the surveillance in question without first going to the AG and saying "mother may I." It also prevents the President from delegating this authority to, say, a four star general. Even if Congresss has the power to require probable cause before conducting military operations, it does not also have the power to bypass the Commander-in-Chief and vest this power in the AG, against the President's wishes.
3) But, again, we are missing the bigger picture. As Jackson said, Congress cannot deprive the President of the power to command the army and navy. The power to command includes the power to order military operations in time of war. Listening to the enemy's communications, even those that occur in the US, is a "military operation" just like sending a U-2 over Cuba or dropping spies behind enemy lines.
Thus, I agree with Laurence Tribe who said that, in wartime, the Commander-in-Chief's power "swells," and he may make "unilateral amendments" to otherwise valid rules that Congress has passed to regulate the armed forces. While FISA is otherwise valid, we are at war, and the President can thus make the sort of unilateral amendments to which Professor Tribe refers. See Tribe, American Constitutional Law, 238 (1988).
You can think that, and you may be right. But since the FISC precedents are secret and you and I know of no authority we can consult, that opinion remains speculation.
But if you are right, and the standard being applied is precisely the standard that would satisfy the FISC court in all cases, then there seems no substantive reason that FISA -- perhaps with some tweaking amendments -- could not have been used.
All I'm saying is that in other contexts, the Supreme Court has held the two phrases to be substantially equivalent, and that there is no reason to think that there'd be a different result in this context.
then there seems no substantive reason that FISA -- perhaps with some tweaking amendments -- could not have been used.
Except for all of the practical reasons described by the AG and discussed above.
"We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander-in-Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence."
This paragraph seems to contradict the claims made by the President's detractors. That is, the paragraph says that in cases like the present the President's power of command is "exclusive." Congress, by contrast, has no power of command. Subtract all the power that Congress has from that of the President --- if that's the right metaphor --- and the President still retains the exclusive power of command. Maybe this is what Laurence Tribe said that the President can make "unilateral amendments" to Congressional regulations of the Armed Forces in time of war. See Tribe, American Constitutional Law, 238 (1988).
Here we have a foe from the "outside world," not a "lawful economic struggle between industry and labor." Congress has authorized force against the foreign foe, without territorial limitation. The foe seeks to invade us, or direct its infiltrating agents in our midst to attack us. The President has ordered military operations to intercept communications between the foe and its agents. Purely domestic communications are exempt Some of the intercepted communications are captured in the US. Most are captured abroad. According to Jackson's formulation, the President has the exclusive power to command the military to conduct the operations.
This is, I think, further to my point above that the Commander in Chief clause implies that the President has some independent powers -- powers that Congress may not intrude upon.
Prof. Meese's comment was, I thought, quite helpful.
Everyone seems to be discussing Roberts and Cunningham, did anyone see the Hoekstra, chairman of the House Intelligence Committee, letter to the CRS chastising them for putting out partisan reports ? Apparently there were two, Powerline has a copy of the second one.
Blowing the Whistle on the CRS
The actual letter is three pages:
Page 1
Page 2
Page 3
Why hasn't this letter been in the old media ? Especially in light of how they played up the CRS memos.
What you have is a partisan congressional battle over security, when you have a split Congress over whether he has the authority, guess who wins ? Last I saw neither party had exclusive authority to say Congress did or did not give him that authority. I think the second mistake is assuming SCOTUS will continue making left leaning rulings, when the court is shifting. When a particular line of thinking holds sway over a long period of time (since FDR packed the court), if you do not at least pay cursory recognition to the shift in the court, any analysis is going to have a greater chance of being wrong.
On your enumerated points, and the next related post:
1) This point is a strawman. FISA would not have applied to intercepting Japanese theater communications during WWII, and it does not apply to such intercepts in Afghanistan, Iraq, Cuba or North Korea today. It is written to regulate foreign-intelligence surveillance occurring in the United States or targeting persons here. Of course, if FISA had been in place at the outset of WWII, it could have been amended if necessary, as section 1811 contemplates.
2) The way I read FISA, you are correct that the 72-hour emergency provision does seem to require the AG's personal approval. Now would be a good time for the President to ask Congress to amend the law so that more flexible delegation is allowed. (2001 would have been a better time, before the surveillance program began.)
In considering such policy proposals, it is relevant to know how many such intercepts we are talking about. If it is true that we have hundreds or thousands of Al Qaeda operatives being surveilled in the United States, that may be too much of a workload for a single AG.
3) Your assertion that there is no distinction between domestic and foreign "military operations" under the AUMF is little more than an unsupported metaphor. The administration has made some sweeping assertions in that regard, notably in the Padilla case it is afraid to argue before the Supreme Court, without notable success. In fact, the court has decisively rejected the executive's claim to exclusive power over a similar matter that first obtained on a foreign battlefield (Hamdi).
Of course, there also is a qualitative distinction between giving operational orders, which Congress has not done with FISA, and making general rules. Congress has the enumerated power "to make rules for the government and regulation of the land and naval forces." FISA and Title III together criminalize certain behavior -- unauthorized surveillance of the citizens. That prohibition applies to the military as well as everyone else.
"A published report for the Defense Advanced Research Projects Agency said machines can easily determine the sex, approximate age and social class of a speaker. They are also learning to look for clues to deceptive intent in the words and "paralinguistic" features of a conversation, such as pitch, tone, cadence and latency."
I am curious, how the profiling would be affected, say, by someone who, though from a much lower social class, was taken under the wing of a very high social class, and also regarding this reading meaning into "pitch, tone, cadence and latency" of speech, I am very curious how the results would be skewed by say, these defining characteristics of something like autism.
My concerns, as I said before regarding voice-recognition, and now these same concerns are present with the above, are with the error rate of mis-predictions.
Any thoughts on this?
Can Bruce answer Justin's post?
That still leaves a practical question, however. A call comes in or goes out. It's from or to a suspicious number. You want to monitor it because you know the number is suspicious, and the person on one end is a person of interest.
How do you know that? If the number is in and of itself suspicious, why haven't you already secured a warrant to monitor all calls from that number?
This would suggest the unimaginable, in terms of government competance. Certain numbers, in our country or abroad, are known to be suspicious. Yet we don't have a policy of monitoring those numbers? Why not? What is the WOT all about? If our government is not monitoring every call from every number known to be associated with an agent of Al Queda, what's it all about, Alfie?
It leads me to conclude, until I hear a satisfactory explanation otherwise, that something entirely different is operative here. What it sounds like, as a guess, is that they are monitoring a whole lot of calls, and only in listening do they hear something that is suspicious.
They then can't apply for a warrant to keep monitoring that or another number, because the AG might ask, "Why do you think it's a suspicious number?"
They can hardly say "Because when we were illegally eavesdropping on the Vegan Day Conference Call, we found out that one of the vegans is an agent of Al Queda", can they?
I don't see rulings such as Youngstown or Hamdi as a simplistic matter of left- or right-leaning. For example, the diverse opinions in Hamdi found Stevens joining Scalia in a dissent least favorable to the executive's claims.
In the context of our newest justices, I never have believed the Democratic spin that Samuel Alito is predisposed to favor Bush's positions on executive power in general or FISA in particular. He outlined a framework centered on Youngstown for analyzing constitutional questions, and endorsed O'Connor's opinion in Hamdi. IIRC, John Roberts also cited Youngstown as a touchstone on the issue of executive war powers. By contrast, John Yoo and Pat Roberts essentially reject Youngstown.
"It's hard to talk about classified stuff," he said, "but suffice it to say that if you have a large volume of data, a large number of (phone) numbers you're intercepting, the typical model for any kind of warrant requires you to establish probable cause (that one party is a foreign agent) on an individual number."
He said that getting an ordinary FISA warrant is "a voluminous, time-consuming process" and "if you're culling through literally thousands of phone numbers ... you could wind up with a huge problem managing the amount of paper you'd have to generate."
What I understood Chertoff to be saying is that when data-mining produces evidence of a terrorist contact, the government will then seek a FISA warrant to actually tap the person's phones or "undertake other kinds of activity in order to disrupt something."
Chertoff seems to be saying that the government data- mines, and then decides which calls to monitor.
Is "data mining" legal without a warrant? What is it, anyway? And also Chertoff is talking about the large number of calls that are intercepted, making getting FISA warrants impractical. What is "intercepting"?
The text of the clause only places the President at the top of the military command hierarchy. Similarly, in Federalist 69, Hamilton stated the President's role as Commander in Chief "would amount to nothing more than the supreme command and direction of the Military and naval forces, as first general and admiral of the confederacy."
Nonetheless, there are indeed things Congress could not do in light of this clause. Obviously, Congress could not remove the President from his military command. Similarly, Congress could not place some other officer above the President in the command structure. Finally, Congress could not carve out some portion of the armed forces over which the President does not have command.
That interpretation clearly gives meaning to this clause, and it clearly accords with the text and contemporaneous history of the clause. But what it does not do is authorize the President to violate the law, just as any other officer in the military hierarchy is not authorized to violate the law by their command.
So, I see no reason to think the Commander in Chief clause authorizes the President, unlike any other military commander, to violate the law. But it still has independent meaning if it is interpreted to do exactly what it says: place the President at the top of the military command structure. And so FISA, or any other similar law regulating the conduct of war, does not "delete" the Commander in Chief clause.
By the way, I do think it would be problematic if FISA was interpreted as prohibiting the President from directing the issuance or denial of emergency orders when the Attorney General disagreed. Rather, I think FISA must be interpreted as allowing the Attorney General to make that determination in the first instance, but the President could still countermand the Attorney General if he disagreed. This same principle, of course, is usually applied whenever a statute describes what a particular executive officer could do (the statute is interpreted to allow the President to direct that officer in the performance of his duties).
Incidentally, the general idea that Congress may require certain high level officers to personally authorize certain military actions is not unprecedented. Indeed, in the Articles of War for the Revolutionary War, one of the provisions stated:
"All officers and soldiers are to behave themselves orderly in quarters, and on their march; and whosoever shall commit any waste or spoil, either in walks of trees, parks, warrens, fish-ponds, houses or gardens, cornfields, enclosures or meadows, or shall maliciously destroy any property whatsoever belonging to the good people of the United States, unless by order of the then commander in chief of the forces of the said states, to annoy rebels or other enemies in arms against said states, he or they shall be found guilty of offending herein, shall (besides such penalties as they are liable to by law) be punished according to the nature and degree of the offense, by the judgment of a regimental or general court-martial."
The manifest purpose of this Article was to protect the property of innocent civilians from armies operating in the field. Accordingly, it required this procedure (needing a direct order from the commmander in chief) in order to effect this purpose.
So, in that sense FISA is not really new at all: Congress is still concerned about innocent civilians being subjected to military action, and FISA mandates procedures to prevent that from happening. The idea that this dynamic is unprecedented is thus quite mistaken--it has always been one of the purposes of the Articles of War and their successors.
I'm actually not sure if the Roberts/Yoo/Bush/etc. position has any votes at all. Even Justice Thomas, when discussing the separation of powers issue in Hamdi, distinguished the courts from Congress ("Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive."). Chief Justice Roberts specifically stated that Jackson's concurrence in Youngstown applied to these issues. And so on.
So, I doubt the vote would be close. And even it was, I think Kennedy at the very least would make the difference against this argument.
His proof? Apparently the author of the memo is a registered Democrat.
So, anything written by a Democrat must be the result of partisan bias? Does the same rule apply to anything written by a Republican? I suppose if anyone in the OLC was a registered Republican, that means everything they wrote on this subject was tainted by partisan bias too, right?
Sheesh.
Of course, I think it would be reasonable to wonder if the CRS might have a pro-Congress bias, just as the OLC might have a pro-Administration bias. But I guess that wouldn't play as well with the Powerline crowd.
I learned something else new which maybe you all know already, but those 14 lawyers assert the following: if the government is tapping a foreign number, and that number happens to call a person in the United States, or someone here happens to call that number, that's okay, and the FISA does not speak to that or require a warrant to continue monitoring that call.
The FISA only requires warrents for calls which are initiated by a person in this country, or for information that is acquired in this country.
I read that the same prominent people who wrote the letter critical of Bush, wrote defending Clinton on the same issues.
A 180 degree turnaround shows a level of bias not legal reasoning. The NYT should have made this clear when publishing the details of the latest letter.
I think some are interpreting Youngstown and the Jackson Concurrence in a left leaning way when they assume the NSA surveillance is a Category 3. Youngstown was not about surveillance for gathering foreign intelligence, in fact, there is not much relevance between the two cases. In fact, though a majority of the Court (6) concluded that Truman's action exceeded his authority under the Constitution, seven justices indicated that the power of the President is not limited to those powers expressly granted in Article II. Had the Congress not implied or expressed disapproval of Truman's seizure of the mills, the action would have been upheld. You do not have Congressional disapproval here, only partisan, this is not a solely domestic issue that the legislative branch can act upon in a timely manner. All cases that have dealt with inherent powers have upheld that the executive branch has them, including Sealed Case. Without congressional disapproval, which you clearly do not have (only democrats), you have no case for claiming Category 3 status.
Hamdi is not the slam dunk I see people interpreting it as. They admit to the powers authorized by the AUMF, and while stating it is not a blank check, they only specific check they delineated was that Hamdi could not be held indefinitely because the duration of the War on Terror had no easily verifiable end point. The more logical rationalization, is that that they upheld his right to detain as a necessary fundament to war, intelligence gathering also falls under that, and whereas, 9/11 occurred on our soil and there are sleeper cells here, the US is part of the theater of war. There is a reason executive branch authority is unenumerated, because in a crisis, it may need wide latitude to use discretion in dealing with that crisis.
That does not mean he has a blank check to surveil anyone he chooses, and he has never claimed that right. I swear sometimes people allow the media to sway their opinions. If I were a betting man, I would bet on SCOTUS upholding the NSA surveillance, if it is in the narrow scope stated by the NSA, if they consent to hear it at all.
If we ascribe executive and legislative bias which one has information on the details of the surveillance to make a more informed opinion ? The CRS forms opinions without a similar foundation. The OLC has far more details than the CRS and any blogs have for putting forth their opinion. Even Professor Kerr has put forth that stipulation on his opinions. You nor I know the details to make a judgement on the legality. Hoekstra and Roberts certainly have more information than you or I have, or the CRS for that matter. Hoekstra has every right to criticize and chastise the CRS. And the bias that you seem to try to dismiss is apparent when they try to claim it is a Category 3 in their first memo when there is no congressional disavowal of executive authority, only democrats. I thought the CRS was supposed to represent all members of Congress, not just one party. The second memo was written by not only a registered democrat, but one who made significant contributions to the Kerry campaign and Hoekstra pointed out blatant falsehoods in his opinion.
To me, it seems you argue for an unprecedented expansion of legislative branch power and a weak executive branch because I have seen no criticism or concern of legislative branch overreach. You solely seek to minimize or dismiss any arguments that may support executive branch authority. Let me state clearly, I do not think you do so for partisan reasons, but as a reflection of your own personal judicial philosophy. You argue with a dispassionate presentation rather than heated rhetoric, which I admire. I think the legal profession, as a whole, like academia, leans left, while the people of this country, as a whole, lean right.
A year previously when a person believed to possibly be an AL Qaeda agent travelled to the United States, 24 hours after arriving in New York he placed a call to a number in San Francisco which is listed as being that of an one man import firm of Pakistani textiles. Investigation indicates that the firm is run by a U.S. Citizen of Saudi Arabian extraction, who previously has had no contact with legal authorities. His cousin in Saudi Arabia, however, is a "person of interest" to Saudi officialks who believes he may have been involved in terrorist activities there.
At 3:00 am local time, the U.S. attacks by a drone firing a missile a gathering in a small rural town in Pakistan believed to be a gathering of Al Qaeda leaders. Sixty minutes later a phone call is placed from the town in Pakistan to the import firm in San Francisco. This call could be intercepted in the United States.
Query:
What specific steps under FISA --either emergency or not--are required to acquire the call to the U.S. citizen in San Francisco? Pay particular attention to the timing required.
Read 28 U.S.C. 510, entitled "Delegation of authority". Section 510 is in Chapter 31 of Title 28, called "Attorney General".
Section 510 says:
"The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General."
What this means is that by order of the AG (which would not have to be published), pretty much anyone in DOJ -- or the FBI, or DEA, or any other agency lodged in the DOJ -- could make the decision to spy.
Let's make the hypothetical more interesting. Instead of the gathering being in a small village in Pakistan, let's say it's in the man's home in a densely populated neighborhood of rowhouses in San Francisco. Can and should the CIA commander on the ground order the Predator strike knowing full well that there will be numerous innocent civilian killed in the attack. Oh and by the way there is only a "reasonable belief" that these are Al Qaeda operatives--they might be completely innocent, but hey it's a war--but we can always claim it was their number 3 guy, we've killed him several times already, why not again.
There is nothing "left-leaning" about this. It is simply breaking down the legal issues bottom-up, as Samuel Alito explained at his hearings: First one should analyze the facts and the statutes. If the statutory analysis -- in this case the claim involving the AUMF -- leads to a conclusion that the surveillance was lawful, then that is that. We would be in Category 1. There would be no separation-of-powers issue because the President and Congress would be in agreement. But if the statutory analysis leads to the conclusion that the AUMF did not authorize the program, then we find ourselves in Category 3.
That logical framework, I believe, is what I have employed in my postings here. If I understand it correctly, that is roughly how Prof. Kerr outlined the issues in his original postings, as well. None of these analyses has been at all "left-leaning."
(The administration's white paper does cause the statutory and constitutional issues to overlap, because one of their arguments for interpreting the statutes implicates their constitutional claim for its reasoning. The way I see it, that just raises the constitutional issue sooner than a pure statutory claim would do.)
The person who sees "left-leaning," ideological and partisan motives behind every tree in the forest is you.
KMAJ: Hamdi is not the slam dunk I see people interpreting it as. They admit to the powers authorized by the AUMF, and while stating it is not a blank check, they only specific check they delineated was that Hamdi could not be held indefinitely because the duration of the War on Terror had no easily verifiable end point.
You are misreading the case. The question of how long such detention might last was raised but not decided.
Howeever, a distinct separation-of-powers question was decided, in addition to the matter of whether Hamdi could be held as an enemy combatant. The administration claimed that because of its inherent powers, the judicial branch had no authority or role in protecting due process rights of such an enemy combatant. On that particular issue, the government lost 8-1, with the plurality opinion laying down the principle: "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 other important detail of Hamdi, related to the question of whether the AUMF authorized his detention, was the fact that the plurality opinion on that point as narrowly based on the factual context of a foreign battlefield.
I have explained these facts about the Hamdi case to you in prior exhanges here before, yet you continue to ignore them. I don't know if you simply have a poor memory, or if it is because the Powerline spin on the case, and the DOJ "white paper," omit these details because these facts don't support their arguments.
On the details of the program: the Administration has actually stipulated to a few facts, including that this program involves in part electronic surveillance within the meaning of FISA without following the FISA procedures. Those stipulations allow for a great deal of legal analysis to occur without any further details.
On whether it is Category 3: first, have you read the Roberts and Cunningham letters we were discussing? They actually purport to analyze the case under Category 3 (without necessarily deciding that is the case).
Anyway, the CRS has a very lengthy explanation for why they think this is a Category 3 case. As I understand it, your objection to this conclusion is that currently, only Democrats are objecting to the program. Factually, I'm not sure that is correct--as I recall, many Republicans have expressed some concerns. Moreover, it is premature: Congress is going to hold hearings on this issue, and we do not know yet what they will conclude on this issue.
But most importantly, I'm not sure why you think that is relevant. It is true that the Category 1 versus Category 3 issue is ultimately one of congressional intent, but it is congressional intent AS STATED BY LAW. And that means at least three things. First, the relevant congressional intent is the intent as of the time they passed the relevant laws, not what Congress would want now. Second, the relevant congressional intent is what they managed to pass into law, not whatever private aspirations or views they might have had--not even if a majority shared some particular private aspirations. Third, once the laws have been written, if a later Congress becomes concerned about those laws, then they have to follow the Article I legislative procedures in order to amend or repeal the laws. They can't do so simply by forming such an intent, or making public statements to that effect--again, not even if a majority of both houses makes such public statements.
So, frankly, I think you are just making up an issue for your own partisan purposes. The job of the CRS in a case like this is not to poll current members of Congress to see what they would want--THAT would be highly improper. Rather, their role is to analyze the laws AS WRITTEN, and to supplement that analysis with their extensive expertise in legislative HISTORY.
On my biases and the separation of powers: You seem to be accusing me of a pro-Congress bias, but I have frequently stated that I am by no means a fan of Congress. And I've noted before what I believe are the proper ways to limit congressional authority. Briefly, they include the difficult process of legislation, the Presidential veto, judicial review, specific constitutional limitations on congressional actions such as those in the Bill of Rights, and so on.
What I am objecting to is essentially the principle that if the President simply does not like what a law requires, he can decide not to faithfully execute it, and that his decision to do so somehow renders the law he did not like "unconstitutional". You claim that my reaction against that line of reasoning favors an unprecedented expansion of legislative power, but I would say I am trying to prevent an unprecedented concentration of the legislative power in the hands of a single branch.
In that sense, I think I am actually far more concerned about legislative power than you are. I'm so concerned about it that I want to make sure it remains divided in the way envisioned by the Constitution, where making laws require majorities in two different houses and the signature of the President, or supermajorities in the two houses. I see you wanting the process of legislation to take just the vote of one man--the President--and I very much fear a legislative power like that.
In sum, you seem concerned about legislative power encroaching on the PRESIDENT, but I am concerned about legislative power encroaching on the PEOPLE. I think that was the real concern of the Founders, and to prevent that from happening, they created a carefully structured, separated, and balanced system of legislation.
So, perhaps you can accuse me of having a pro-PEOPLE bias when I consider these issues. I'm happy to accept that accusation.
Today's Washington Post provides further indications that the surveillance has been broad, involving as many as 5,000 persons, most of whom do not prove to be Al Qaeda agents after all.
I am reminded about our previous discussions in this thread about the standards being applied. It occurs to me that another variable besides "probable cause" and "reasonable basis" is their predicate -- to what do these phrases apply?
For a warrant, the FISA statute requires probable cause that an individual is an "agent of a foreign power," for which there are detailed statutory definitions, which in turun lend themselves to interpretation by the secret FISC court. The de facto standards being applied within the NSA progam may be different. We simply have no way to know for sure.
Apart from the legal definitions, the layman's language employed in presidential rhetoric, strongly implying to the public that only Really Bad People actually talking to Al Qaeda terrorists have been surveilled, begs the question about how many innocent parties have actually been swept up in the surveillance.
Actually, given your hypo, I'm not convinced we should be surveilling that phone call. I don't think that there is probable cause that either end of the communication is an agent of a foreign power. Indeed, from your description it sounds like there is only a borderline case for the person in New York (and the cousin in Saudi Arabia), and you have presented little grounds for believing that whatever case there might be against these other parties could be transferred to this US citizens in San Francisco.
Of course, there may be good reason to believe the subject of the phone call will be the recent US attack in Pakistan, but so what? The government has no legitimate interest in surveilling conversations about their actions when neither party is an agent of a foreign power. There is also an entirely innocent reason why this US citizen might know people in Pakistan--he deals in Pakistani rugs.
In fact, I'm not sure the case you presented even arises to the level of reasonable suspicion. In any event, I think it falls well short of probable cause, and I would suggest that the US citizen has a legitimate privacy interest in this conversation and that the facts as you presented them do not provide a sufficient justification for overriding this interest.
That article is fascinating. Of course, it is completely at odds with some of the legal claims Gonzales is apparently making, but falls in line with other things Gonzales and Hayden have said.
I think the article also suggests an interesting point about John L.'s hypothetical. How many U.S. citizens might be similarly "linked" to this New York person in some way? How many might fit the same "patterns" of activity with respect to Pakistan? One of the interesting points in the article is that these are not entirely speculative questions: as you use certain filters over time, you can determine your "false positive" or "washout" rate. So, the amount of "cause" provided by such evidence becomes an empirical question.
Anyway, I suspect that the terms "false positive" and "washout rate" are about to gain new importance in the American political lexicon.
Is your premise that the NSA folks who monitor these calls and decide who to listen to in real time *ARE ALL FLUENT IN THE VARIOUS ARABIC DIALECTS USED BY THE TERRORISTS WHO COME FROM COUNTRIES LIKE SAUDI ARABIA, SYRIA, IRAN, TUNISIA*?
OR IS THE WORKING ASSUMPTION THAT TERRORISTS SPEAK IN ENGLISH?
I think both are pretty ridiculous premises, let's be honest.
So what does that mean?
To me it means the NSA must be recording for later translation scores upon scores of conversations.
How quickly is the administration, through the NSA, FBI, CIA, translating these conversations?
Because only on translation are they of any use.
Bottom line. If anyone posting here believes that a real-time intercept will translate into saving an imminent attack, I think the odds are beyond slim to none. [Save those times the NSA monitor is fluent in the Arabic dialect being used and knows the code being employed.]
That is, not unless these scores of calls are being decoded/translated/uncrypted in real time.
Something else is going on here, clearly.
I don't think it's anymore complicated than the NSA is gathering thousands of domestic and foreign calls to and from areas where terrorists of any stripe are assumed to be operating and analyzing them -- as the WWII cryptograhper Navy Commander Joe Rocheforte did to the Japanese Code before the critical battle of Midway -- to determine if a code exists [a safe assumption], what it is, and who's using it here in the United States.
That means no probable cause, no reasonable belief, no particularized suspicion.
If the administration is serious about capturing terrorists -- and there's no doubt they are -- I don't see any chance a sound program would limit surveillance to any of the foregoing legal standards.
Especially when the bad guys talk in a language few government employees understand.
I wish I had better quotes, but was unable to take notes where I was at the time of the broadcast. I will look for transcripts later.
Specter did not say anything that answered my questions in this thread about what legal form such a case could take.
I think the administration is about as serious about capturing terrorists as Big Brother was capturing Goldstein.
Speaking of Arabic/Persian/etc. translators, what do you think of Sibel Edmonds?
Ob 1984, I keep thinking of the movie Brazil.
And, man this is a great thread. VC should feel good about the community it's created.
In fact, it was about discovery issues (e.g., Juanita Broaddrick), lying under oath and related issues; the person you responded to is right, if this were a Dem or Left/Dem president this would not be occurring. (For the record, as regards Juanita Broaddrick discoveries, lying under oath and Clinton's impeachment trial in general, I favored impeachment w/o removal from office. That would have been condign, neither over-reacting nor merely dismissing it.)
Similarly, the misrepresentations (e.g., of Posner's policy analysis), would likewise not be occurring, in fact they'd often be lauded for their perspicacity, foresight and mediating qualities.
The notion you're forwarding, that this is some type of non-partisan, politically non-sectarian interest, is absolutely risible. Send in the clowns, don't bother, they're here.
What I should have said, and believe, is the adminstration talks as though they're serious about it.
As for Sibel Edmonds, the former FBI arabic translater a now-whistleblower, her allegations make perfect sense. And further show the ridiculousness of the administration's *factual/operative* descriptions of its NSA spying operation.
And Edmonds' complaints reinforce the general picture, for me at least, that this administration too interested in "assertion," rather than fact.
Also, the recent disclosure about the NASA climatologist whose complaints about administration indifference(?) to global warming won him retaliation further confirms a very unappealing picture about this administration's general lack of interest in real science and real facts.
Obviously, there are partisans on either "side" who would be willing to flip on these issues depending on the party of the President.
But I am reasonably hopeful that a good number of Republicans will take these issues seriously as a matter of principle. In any event, insofar as the Republicans in question are members of Congress who plan to be around for a while, they have to contemplate the possibility of a Democratic President using whatever precedents are set.
Indeed, the aforementioned Senator Specter seems to be taking this issue seriously so far--although the cynic in me might suggest that he appears to be someone who has doubts about the President's arguments, but would love for someone else (eg, the FISC) to say so.
I am not dismissing the issue. But what you're forwarding is a type of equivocation and leveling which I don't believe or accept in the least.
Have a very good day.
I think that in the long run, people will look back on the Bush Administration as the most "pomo" (postmodern) in American history (at least so far). The very idea of objective truth does seem to be consistently discredited, and the focus seems to be on promoting certain narratives instead. In other words, it is about "truthiness", not the truth.
Of course, the pomo approach has a certain sophomoric appeal, particularly in the arts and literature. But I always thought it was quite obvious that pomo theorists should never be given power in practical contexts. For example, would anyone want to drive over a bridge designed by a pomo enginee--someone who was more interested in the narrative of the bridge than in the objective truths of concrete, steel, and gravity?
And I might note that one of my favorite professors used to refer to lawyers as "institutional engineers". So, I think much the same thing about postmodernism and the law--just as I wouldn't want to drive over a bridge designed by a pomo engineer, I wouldn't want to live under a legal system designed by pomo lawyers.
Hear, hear.
Oh, I don't think the field is level. Quite to the contrary: because the Republicans control both houses of Congress, and indeed have appointed the majority of federal judges, the field is clearly tilted in this President's favor.
A snappy response which evades, rather than addresses, what was posed.
However, if your thesis is that I believe that most politicians are likely to place partisan interests over principle unless compelled to by an attentive public, then you are right. If you are further hypothesizing that I think politicians of all political affiliations are subject to this tendency, then you are right about that too. In that sense, I don't think there is a "good party" and a "bad party" when it comes to partisanship--rather, I do indeed think that they are both going to be equally "bad" unless the people demand better of them.
And frankly, I can't understand why anyone would think any different. It seems to me you would have to be pretty naive to think that politicians in one party are likely to be more principled than the politicians in another party without some sort of enforcement mechanism. And yet, lots of people do seem to think that the politicians "on their side" can be trusted, but the politicians "on the other side" can't.
Oh well. I take some comfort in the fact that I think partisans of all stripes are actually a minority when it comes to the general citizenry. The problem, of course, is figuring out how to turn the superior numbers of the non-partisans into an effective political force without the organizational benefits of a political party.
"MR. RUSSERT: The administration says that they didn’t need to, that they already had authority from Congress when, back in October 2002, Congress voted an authorization to go to war against Iraq, and this is part of that war.
SEN. SPECTER: I believe that contention is very strained and unrealistic. The authorization for the use of force doesn’t say anything about electronic surveillance, issue was never raised with the Congress. And there is a specific statute on the books, the Foreign Intelligence Surveillance Act, which says flatly that you can’t undertake that kind of surveillance without a court order.
MR. RUSSERT: The White House also says that they didn’t go to Congress because people in Congress told them that they would compromise this surveillance plan if they requested permission to conduct it.
SEN. SPECTER: Well, the administration also has said, Attorney General Gonzalez has been questioned, reported, and I asked this in a letter I sent to him, saying that if the administration went to Congress, they were likely to be denied the authority. So, it’s very hard in that kind of a context to claim that Congress intended to give the authority if the administration thought that Congress would turn it down.
. . .
MR. RUSSERT: You mentioned the Foreign Intelligence Surveillance Act of 1978, passed by Congress, signed by President Jimmy Carter. That law says that you can go forward with eavesdropping without a court warrant as long as you go back to the foreign—the FISA court, as it’s called, within 72 hours. What have you heard from the administration as to why they did not choose to take that path?
SEN. SPECTER: Well, that was one of the questions I posed in a detailed letter I sent some time ago to the attorney general, and he wasn’t entirely responsive, but the thrust of what he had to say was that it was too massive to undertake and too complicated and it would have resulted in delays. His answer wasn’t very clear, and that’s why we’re having the—the hearing to go into it.
I think this issue, Tim, of the Foreign Intelligence Surveillance Court is really big, big, big, because the President—the administration could take this entire program and lay it on the line to that court and go through what is involved in some detail, but they don’t want to deal with Congress because of leaks. That court has really an outstanding record of not leaking, out of being experts, and they would be preeminently well-qualified to evaluate this program and either say it’s OK or it’s not OK. And if they said it was OK, it would give the American people great reassurance; and if they said it wasn’t OK, knowing all the facts, then that ought to be changed.
. . .
MR. RUSSERT: When President Carter signed the Foreign Intelligence Surveillance Act into law, he had a presidential signing statement, and in that signing statement he said this, quote, 'It clarifies the executive’s authority to gather foreign intelligence by electric surveillance in the United States,' suggesting that any inherent powers in Article 2 of the Constitution, or other—other legislation, that this, this FISA law, was central and now would be controlling. Do you agree with that?
SEN. SPECTER: Well, I think that it’s a very powerful statement when the President—Carter at the time—signed it, and said that that was the way electronic surveillance ought to be conducted, and only with a warrant. And that was a presidential concession as to who had the authority. Congress exercised it by passing the law, and the President submitted to it.
Now, there is an involved question here, Tim, which we’re going to get into in some depth, as to whether the President’s powers under Article 2, his inherent powers, supercede a statute. If a statute is inconsistent with the Constitution, the Constitution governs and the constitutional powers predominate. But here you have the President signing on and saying this is it, and that’s why I’ve been so skeptical of the program because it is in flat violation of the Foreign Intelligence Surveillance Act, but that’s not the end of the discussion. There’s a lot more to follow, and we won’t be able to cover it all here this evening—today, this morning, but we’re going to have a hearing tomorrow and some more hearings after that because of the importance of this issue and because of its complexity and depth.
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I actually concur with your anlaysis from a legalistic point of view -- and to some degree the hypothetical was fashioned for that very grey "is this probable cause?"
From a military point of view, it is precisely the opposite. The person in San Francisco (or the role that the person in San Francisco "might" have) is of the highest interest because the most damaging attack possible from terrorists would be in the United States.
Which may neatly summarize the problem.