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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.
Fishbane (mail):
Great deal, +++AAA! I'd pay twice as much for half!
2.4.2006 6:41pm
Just an Observer:
From the Time article: "In accompanying testimony, the Attorney General plans to leave open the possibility that President Bush will ask the court to give blanket approval to the program, a step that some lawmakers and even some Administration officials contend would put it on more solid legal footing."

By what mechanism could the FISA court issue an advisory opinion?
2.4.2006 6:55pm
volokh watcher (mail):
Orin:

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.
2.4.2006 7:01pm
minnie:
I posted a comment on the wrong thread, and Orin suggested I post it here, so I'll repost:

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.
2.4.2006 7:03pm
Medis:
Can anyone explain this to me?

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.
2.4.2006 7:18pm
boonelsj (mail):
I really think the only reasons not to go through FISA are: (1) you don't think they'd approve a warrant, even retroactively, (2) you don't want the FISA court to know what you're doing, or (3) you simply can't be bothered. All the other justifications I've heard seem pretty dubious.
2.4.2006 7:26pm
Medis:
boonelsj,

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.
2.4.2006 7:30pm
EtSeq:
Thanks, Professor Kerr, for all the informative posts. It is appreciated.
2.4.2006 7:50pm
Just an Observer:
Medis,

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.
2.4.2006 7:54pm
Freder Frederson (mail):
I don't understand why (1) would be true if they really had the probable cause that Gonzales claims is a condition precedent.

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.
2.4.2006 8:08pm
Medis:
JaO,

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.
2.4.2006 8:19pm
John Lederer (mail):
Worth noting is this in depth letter from Sen. Pat Roberts, which, inter alaia, discusses the practice in "informing" the inteliigence committees:
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
2.4.2006 8:39pm
John Lederer (mail):
boonelsj:

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.
2.4.2006 8:43pm
Freder Frederson (mail):
Suppose you have only 30 minutes to make the interception in?

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.
2.4.2006 9:01pm
Freder Frederson (mail):
Worth noting is this in depth letter from Sen. Pat Roberts, which, inter alaia, discusses the practice in "informing" the inteliigence committees

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?
2.4.2006 9:11pm
Just an Observer:
Medis,

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:

The standard laid out by General Hayden - a "reasonable basis to believe" - is lower than "probable cause," the standard used by the special court created by Congress to handle surveillance involving foreign intelligence


(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.
2.4.2006 9:13pm
Medis:
Roberts's and Cunningham's letters are very similar in that they purport to analyze the case under the Youngstown Category 3 framework, and then pretty much ignore the rule in Category 3 and replace it with essentially the opposite analysis. In short, as I noted before with respect to Roberts, Cunningham seems to think 2-1=2, because he seems to think that when Congress's power is subtracted from the President's powers (the rule in Category 3), the President nonetheless retains all the same powers.

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.
2.4.2006 9:28pm
Medis:
John L.,

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.
2.4.2006 9:38pm
minnie:
Sorry I posted the time wrong for the CSPAN show tomorrow AM with Glenn Greenwald re: the warrentless eavesdropping. It starts at 7:45.
2.4.2006 9:53pm
Just an Observer:
John Lederer,

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.
2.4.2006 9:54pm
Rodger Lodger (mail):
From "Just an Observer", near the top: By what mechanism could the FISA court issue an advisory opinion?

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.)
2.4.2006 10:09pm
Medis:
JaO,

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.
2.4.2006 10:11pm
Lurkster (mail):
Obvious solution to this problem is to suspend the surveillance.

We can start again when a Democrat is elected President and all trust in government is restored.
2.4.2006 10:21pm
Just an Observer:
Rodger Lodger,

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.
2.4.2006 10:24pm
Bruce Hayden (mail) (www):
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."
Everyone here is jumping to the conclusion that the AG is lying, etc. But his statement makes sense (at least to me) if you start with the fact that as I read the statute, the 72 hour Emergency Orders provision starts when the AG (or apparently the NSA head) authorizes the surveilance - not when the call in incoming.

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.
2.4.2006 10:42pm
Just an Observer:
Medis,

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.")
2.4.2006 10:47pm
Bruce Hayden (mail) (www):
Lurkster said:
"Obvious solution to this problem is to suspend the surveillance.

We can start again when a Democrat is elected President and all trust in government is restored."
This was said either in jest, or without any connection with reality.

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.
2.4.2006 10:50pm
Just an Observer:
In addition to the problem that the AG must authorize the 72-hour emergency surveillance in advance, there is an additional practical problem with that FISA mechanism:

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.
2.4.2006 10:57pm
Medis:
Bruce,

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?
2.4.2006 11:03pm
Julian:
Bruce, your 10:42 reading is the first plausible argument I've ever seen for any actual need to ignore (at least some elements of) FISA. Very nice point. Haven't pulled up the statutory language myself, but your quotations suggest a pretty plausible argument.

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?
2.4.2006 11:05pm
Julian:
Ugh. I meant arrogate, not aggregate. Although perhaps aggregate works too.
2.4.2006 11:09pm
Medis:
JaO,

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.
2.4.2006 11:16pm
Lurkster (mail):
Bruce it was all said in jest. I was sarcastically implying if a Democrat was President this would just be one big yawner.

Or more likely not reported at all.

Lurkster
2.4.2006 11:29pm
Bruce Hayden (mail) (www):
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.
2.4.2006 11:33pm
Bruce Hayden (mail) (www):
"Contrary to the speculation reflected in some media reporting," Gonzales writes, "the terrorist surveillance program is not a dragnet that sucks in all conversations and uses computer searches to pick out calls of interest. 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 will admit that the above could easily be read that some real person is deciding whether there is reasonable grounds to believe that a party to the communications is a member or agent or Al-Qaeda, et. al before any recording is being done. But one alternative is that the conversation is recorded automatically, and then the real person decides whether to listen to the conversation based on the relevant circumstances.

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.
2.4.2006 11:42pm
Lurkster (mail):
Bruce, :)

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.
2.4.2006 11:43pm
A.S.:
"Probable cause" means one thing; "reasonable grounds to believe" means something else.

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.").
2.4.2006 11:50pm
Freder Frederson (mail):
I was sarcastically implying if a Democrat was President this would just be one big yawner.

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.
2.4.2006 11:51pm
Freder Frederson (mail):
There are some very dumb Democrats in the Senate, but none stupid enough to recommend cease and desist on the survelliance.

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.
2.4.2006 11:55pm
Just an Observer:
A.S.,

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.
2.5.2006 12:09am
Lurkster (mail):
This latest "Impeach Bush" ploy is, if I recall correctly, #42 or #43 since 2001.

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.
2.5.2006 12:11am
A.S.:
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.

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.
2.5.2006 12:17am
A.S.:
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.

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.
2.5.2006 12:23am
A.S.:
You think that the Congress would let a Democratic president get away with this?

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???)
2.5.2006 12:29am
Alan Meese (mail):
A few observations regarding the "emergency order" "exception" to FISA.

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).
2.5.2006 12:31am
Just an Observer:
A.S.,

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.
2.5.2006 12:33am
A.S.:
JaO: of course, we don't know what the FISC has ruled. Hell, for all we know, the FISC has already ruled half of FISA unconstitutional. So maybe all of the statutory provisions everone is interpretting have nothing to do with anything.

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.
2.5.2006 12:49am
Alan Meese (mail):
A.S. has hit the nail on the head. Some are reading Jackson's analysis as if he would allow Congress to delete the President's power to command the armed forces from the Constitution. But, Jackson said just the opposite in the opinion. He said, for instance, that Congress could NOT deprive the President of the authority to Command the army and the navy. See Youngstown at 644. He also said:

"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.
2.5.2006 12:50am
A.S.:
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)).

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.
2.5.2006 12:57am
A.S.:
I see that, while I was reading and typing, Prof. Meese also noted that our comments are in sync. Thanks, Prof!
2.5.2006 1:01am
KMAJ (mail):
I am not sure why some continue to assume this is a Category 3 case. Quite clearly, SCOTUS could also decide the AUMF would make it a Category 1. Simply put, people are guessing.

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.
2.5.2006 1:21am
Just an Observer:
Alan Meese,

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.
2.5.2006 1:42am
Mary Katherine Day-Petrano (mail):
I noticed a little article on msn this evening about the NSA spying. t discussed a lot of the stuff I posted on other NSA threads about the voice-recognition dictionary matching problem. One thng that really struck me in the article was the following statement:

"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?
2.5.2006 1:48am
minnie:
I had the same exact thought that Justin did, after reading Bruce's 10:42 post: that Bruce introduces facts that give the only plausible explanation for why the government could not get a warrent first. I believe Bruce is saying that all current laws do not provide any mechanism for retroactive approval. If you haven't yet contacted the AG, you cannot monitor the call, which obviously might well be over before you can reach the AG, even if that only takes minutes. Can this really be so?

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?
2.5.2006 2:23am
Just an Observer:
KMAJ: I think the second mistake is assuming SCOTUS will continue making left leaning rulings, when the court is shifting.

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.
2.5.2006 2:26am
minnie:
Below is from an article by Morton Kondracke about an interview he had with Chertoff:

"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"?
2.5.2006 2:55am
minnie:
What does IIRC mean?
2.5.2006 2:59am
Medis:
I also find the idea that FISA (or other laws regulating the conduct of war) would "delete" the Commander in Chief clause fascinating.

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.
2.5.2006 3:41am
Medis:
Incidentally, if we are predicting votes in the Supreme Court:

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.
2.5.2006 3:48am
Medis:
I read Hoekstra's letter, and the non sequitur should be obvious. Hoekstra criticizes some of the CRS's legal analysis in their second memo (on the National Security Act of 1947), which of course is his right. But then he implies that the source of their alleged errors was partisan bias.

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.
2.5.2006 4:06am
minnie:
I see in the letter that 14 lawyers, including Marty Lederman and former high government officials, wrote in response to the 42 page DOJ memo, that they say that a warrant can be obtained AFTER a wiretap has been put in place. That refutes what Bruce Haymden says above. I have to believe Marty is right on this point, as 13 other top lawyers wrote that letter, and they surely have analyzed the language in the FISA and are able to accurately understand its meaning.

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.
2.5.2006 4:14am
davod (mail):
Minnie:

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.
2.5.2006 5:15am
KMAJ (mail):
JaO,

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.
2.5.2006 5:53am
minnie:
davod, where did you read that? If true, it of course undermines their credibility. However, are they really the very "same issues"?
2.5.2006 5:57am
KMAJ (mail):
Medis,

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.
2.5.2006 6:35am
Lurkster (mail):
IIRC = If I Recall Correctly.
2.5.2006 7:12am
John Lederer (mail):
Let us imagine the following hypothetical.

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.
2.5.2006 8:53am
volokh watcher (mail):
For those defending the administration and Gonzales on the pretext that FISA is too cumbersome because it requires the AG's personal approval to eavesdrop, this too is a cannard.

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.
2.5.2006 9:13am
Freder Frederson (mail):
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.

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.
2.5.2006 9:30am
Just an Observer:
KMAJ: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.

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.
2.5.2006 10:26am
Medis:
KMAJ,

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.
2.5.2006 10:54am
Just an Observer:
Medis et al,

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.
2.5.2006 11:03am
Medis:
John L.,

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.
2.5.2006 11:12am
Medis:
JaO,

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.
2.5.2006 11:34am
volokh watcher (mail):
To those defending the NSA spying program on the pretext offered by Gonzales -- we need to be quick, nimble, flexible, [pick a word], etc. -- I ask the following:

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.
2.5.2006 11:35am
Just an Observer:
On the subject of whether the FISA courts somehow could be asked to rule on the legality of the NSA program, Sen. Specter said on Meet the Press today that he is very interested in that idea -- I think he called it "big, big, big" -- and had proposed it to the adminstration. He added that the DOJ had been noncommital.

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.
2.5.2006 12:01pm
Freder Frederson (mail):
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.

I think the administration is about as serious about capturing terrorists as Big Brother was capturing Goldstein.
2.5.2006 12:06pm
Defending the Indefensible:
Volokh Watcher,

Speaking of Arabic/Persian/etc. translators, what do you think of Sibel Edmonds?
2.5.2006 12:29pm
Defending the Indefensible:
Freder,

Ob 1984, I keep thinking of the movie Brazil.
2.5.2006 12:56pm
Julian:
Volokh Watcher at 9:13, thanks for the post re: AG's authority to delegate. That would seem to settle the necessity question. Certainly matches intuitions about how things would be structured.

And, man this is a great thread. VC should feel good about the community it's created.
2.5.2006 1:05pm
Michael B (mail):
"Oh come on, we impeached a Democratic president for lying about getting a blowjob." Freder Frederson

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.
2.5.2006 1:19pm
volokh watcher (mail):
My earlier comment that the administration "no doubt" wanted to capture terrorists was unintentionally overstated -- as correctly pointed out by Freder Frederson.

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.
2.5.2006 1:24pm
Medis:
Michael B,

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.
2.5.2006 1:27pm
Michael B (mail):
Medis,

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.
2.5.2006 1:33pm
Medis:
volokh watcher,

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.
2.5.2006 1:39pm
volokh watcher (mail):
Medis:

Hear, hear.
2.5.2006 1:44pm
Medis:
Michael B,

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.
2.5.2006 1:45pm
Michael B (mail):
Medis,

A snappy response which evades, rather than addresses, what was posed.
2.5.2006 1:53pm
Medis:
To be fair, Michael, you were hardly very specific yourself.

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.
2.5.2006 2:07pm
Medis:
Incidentally, I am reading some news reports about Specter's comments today, and I withdraw my cynical suggestion above. As far as I can tell, he expressed his doubts about the Administration's arguments quite frankly.
2.5.2006 2:19pm
Medis:
Some notable excerpts from the transcript (available at msnbc.com):

"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.
. . ."
2.5.2006 2:32pm
John Lederer (mail):
Medis,

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.
2.5.2006 2:46pm
Mary Katherine Day-Petrano (mail):
Volokh watcher --

1. '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.'"

It is easy to jump to the superficial conclusion the AG is authorized, without a critical analysis of the predicate issue -- whether the Congressional federal statutory delegation to the AG is (A) constitutional, and (B) even if it is, whether the AG has acted outsinde the permissible scope of the delegation. I don't think the conclusion the AG has acted lawfully can be answered without addressing these predicate issues. And it is my opinion, the NSA spying is unconsitutional and violates FISA. That'smy opinion; others disagree.

2. "To those defending the NSA spying program on the pretext offered by Gonzales -- we need to be quick, nimble, flexible, [pick a word], etc. -- I ask the following:

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?"

You are raising a very good point, for which myself and Bruc Hayden have previously debated. Terrorists do not have to speak in English, as I understand the NSA's use of voice-recognition technology, and the different Arabic dialects probably do not make a whole lot of difference in terms of "translations" per se. Rather, the really BIG problem is that voice-recognition technology (converts sounds heard into "words" said by matching the sounds against an internal computer dictionary to come up with the word assumed to be spoken) has a fairly susbtantial error rate until it is "trained" by a particular person's voice, dialect, rate, pitch, intonation and the "trained" sounds are logged (saved) into the computer by adding them to the dictionary the computer already has. In the case of dialects, it would be very easy for an "untrained" (not individualized) voice-recognition search to have HUGE error rates of exactly what word was spoken.

Which brings us to the application of this NSA technology to searching for keywords of Arabic speakers which are known to be "code words" for certain events -- e.g. "woman" might mean a particular terrorist strike is going down in a place designated by the code word "woman." If the voice-recognition technology were error-free, this methodology would work great. But, as you allude to the larger problem by addressing dialects, "untrained" voice-recognition is quite error-prone in picking up the exact words spoken; hence, the computer might erroneously convert Arabic dialect sounds by matching against a dictionary into the code word "woman," and BIG fiascos then result from faulty information.

Ah, but our Govenrment does the best it can. My only concern was the use of this error-prone technology to target disabled Americans, a passing comment I make without intending to hijack the thread into a whole different discussion.


Just an Observer -- "On the subject of whether the FISA courts somehow could be asked to rule on the legality of the NSA program, Sen. Specter said on Meet the Press today that he is very interested in that idea -- I think he called it "big, big, big" -- and had proposed it to the adminstration. He added that the DOJ had been noncommital."

On this very relevant subject, has anyone read Spector's latest of this afternoon on yahoo news? Spector is saying he thinks the NSA spying program is illegal as of this afternoon.

I was also wondering if anyone caught the latest msn news that now the Administration is preparing to make the claim the President has the authority to order a terrorism "suspect" (merely a person suspected, but not proven or known to be a terrorist, for which there could be error) killed on US soil?

... as I have been saying about the things I am prohibited from talking about on this thread (but not in the United States Supreme Court) about real existing cases on point.
2.5.2006 2:53pm
volokh watcher (mail):
Mary Katherine Day-Petrino:

Respectfully, you appear to have missed the point of my 9:13am post about 28 USC 510 (or maybe you didn't but your post above suggests it). [Julian, posting at 1:05 pm, got it.]

I cited the readers here to Sec. 510 to dispell the mythical argument some made above that appeared to presuppose that only the Atty General had the authority to authorize the kind of surveillance the NSA is now doing and, because only the AG did, it rendered current law insufficiently nimble.

Clearly, the AG can delegate his authority -- as Sec. 510 makes evident. So the "necessity" argument made by others doesn't hold up.

More of concern is how Arabic communications, likely in some sort of code, can be reviewed in real time. Frankly, I don't see how the NSA can. As a result, the administration's claims that warrantless surveillance is essential to ensure nimbleness becomes weightless.

My complaint with this administration, 4th Amendment concerns aside (big but aside for now), is the apparent attitude -- with no limiting principle -- that in defense of the US homeland, the President is a king/dictator. That's it in a nutshell, right?

What I would like to see is Congress get itself involved in oversight. That's its job after all. If a meaningful law could be put in place, then let's do it.

The problem is the rubber-stampers on Capitol Hill -- like Pat Roberts. Hasn't this administration misjudged (I'm being kind) enough major events in the past 5 years to merit oversight? Then throw in Cheney's patent misrepresentations in the run-up to Iraq and recent comments about NSA domestic spying savings 1000s of lives -- which if true would have been on the front page of every newspaper in real time, like when alleged "dirty bomber" Padilla was arrested, oops, detained -- as well as Bush's SOTU claim that NSA spying would have stopped 9/11 (maybe). [Bush forgot to mention Condi's trademark remark whenever events go badly for this administration that "who coulda antipated it" and the more meaningful fact that we had recorded calls of the 9/11 terrorists but no translators. Add that fact to the August '01 warning Bush got while on VACATION, and you have someone who needs oversight, IMHO.]

In any event, if I misunderstood your post, apologies in advance.
2.5.2006 3:25pm
Freder Frederson (mail):
if this were a Dem or Left/Dem president this would not be occurring.

Seriously, I don't know where you poor, put upon Republicans get this persecution complex. And frankly, it is getting pretty tiresome. After five years where this Administration has amply demonstrated its incompetence, duplicity, cronyism, cynicism, manipulation of the press and process for craven political purposes, deceptive practices, abuse of the Constitution, and outright lying to the American people and gotten away with the vast majority of it, how can you still cling to the claim that "they" (whoever "they" are) is treating this Administration more harshly than any other in the history of this country?

This Administration has gotten away with more crimes, both domestic and international, than any other in modern memory, including the Nixon administration. And we aren't talking about personality flaws and lying under oath. We are talking about war crimes, violating the constitution, possibly lying to congress, certainly lying to the American people, vast incompetence and downright disregard of inconvenient truths.

If you want one small example, I live in New Orleans. The president was here several weeks ago and touted how well the rebuilding was going. That was nothing but an outrageous lie and he knew it. Did anybody in the MSM report on the speech and follow up with a statement that the the president was full of shit? Of course not. But that would have been an accurate summary of his speech.
2.5.2006 3:29pm
Just an Observer:
Thanks to Medis for posting the transcript of Specter appearing on Meet the Press today. Specter's remarks generally on this issue, since the original story broke in mid-December, have been fairly forthrightly critical of a program dear to a President of his own party.

While not alone among Senate Republicans, Specter is bucking Bush and his own Intelligence Committee counterpart, Pat Roberts, in holding these oversight hearings. Majority Leader Bill Frist is loyally repeating the White House line that the NSA surveillance is lawful.

My own feeling is that concerned Senate Republicans are the key to any hope of Congress standing up to the President over what is increasingly becoming an open challenge over separation of powers. When they do speak out, Republicans obviously have more credibility than Democrats do. Lindsay Graham seems to want to broker a political compromise. John McCain, always a wild card, has not committed himself yet on the issue, AFAIK. Democrats seem fairly united, but are afraid of being labeled soft on terror.

Having reread Specter's remarks, it is clear to me that he is making a serious proposal that somehow the FISC courts could originate a test case to resolve the legal issues if the administration would cooperate. (I doubt that would ever happen.) However, I still do not understand at all the path such a case might take. If anyone has a clue, please offer it.
2.5.2006 3:36pm
John Lederer (mail):
Mary Katherine:

"WALLACE: But let me ask you about this, because I think it speaks to the larger issue, General, as to how wide a net you are casting. Just recently, you denied that the NSA puts out an electronic net that intercepts thousands of phone calls looking for key words.

But I want to put up what The Washington Post said in the article today. Take a look if you will, sir. "Computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, e-mails and telephone calls into and out of the United States before selecting the ones for scrutiny by human eyes and ears."

Without getting into the numbers, is there a broad, wide-scale electronic net that you put out that means that you intercept lots of phone calls or communications involving Americans, or is there not?

HAYDEN: Chris, I'm glad you asked, and I've tried to point this out in the past. Let me try to make this very, very clear. About the last third of the Post article is an excursion along the lines that you just described, that we somehow grab the content of communications and then use the content of the communications to determine which of the communications we really want to listen to. That is not true.

When NSA goes after the content of a communication under this authorization from the president, the NSA has already established its reasons for being interested in that specific communication. I've said in other places this isn't a drift net over Lackawanna or Freemont or Dearborn, grabbing all communications and then sifting them out.

This is very specific and very targeted when it comes to the collection of the content of communications entering or leaving the United States."
http://www.foxnews.com/story/0,2933,183844,00.html
2.5.2006 4:02pm
colts41 (mail):
John Lederer:

You assessment of Hayden's claim begs seems to me to beg the very questions raised by a warrantless domestic spying regime. For example, just exactly what information and from what souce did the NSA use to identify its suspects? Exactly how would the NSA know which phone numbers are hot?

I'm not a big proponent of trusting politicians -- particularly executive-branch types who claim to have inherent authority to do pretty well whatever he pleases domestically under his C-in-C powers.

For me, this president sees himself as a monarch -- his post-9/11 mindset. (Cheney's always had this mindset.)

I still prefer that post-1789 mindset.
2.5.2006 4:23pm
John Lederer (mail):
colts41:

I think we know that one source has been captured Al Qaeda computers (the phone numbers presumably being contained in them). In fact I seem to recall reading about the army setting up a special procedure so that a combat unit in the field could dump the contents of a captured hard disk to analysts in the states immediately for decryption/processing/translation

I suspect that other sources might be:
1. Captured cell phones
2. Signals intelligence analysis
3. Financial transactions
2.5.2006 4:39pm
John Lederer (mail):
colts41:

I made no assessment in my 4:02 post-- if my punctuation is not clear, all is a direct quote off the TV transcript.
2.5.2006 4:41pm
Kovarsky (mail):
so i've been searching for quite some time for a metaphor that accurately captures this strangely anti-scientific notion that the media is doing biased reporting just because it's doing negative reporting.

i think today i finally figured it out -

it's like someone listening to a radio broadcast of a sporting event and considering the sportscaster "biased" because he portrays a participant unfavorably.

thoughts on the metaphor?
2.5.2006 4:44pm
Freder Frederson (mail):
I think we know that one source has been captured Al Qaeda computers (the phone numbers presumably being contained in them). In fact I seem to recall reading about the army setting up a special procedure so that a combat unit in the field could dump the contents of a captured hard disk to analysts in the states immediately for decryption/processing/translation

Oh, come on. Do any of us really believe that terrorists are so stupid as to keep lists of phone numbers on hard disks and cell phones or that even if they were we are capturing significant numbers of either? Think about it people--terrorists are not so stupid. You are not that stupid, why would they be? Terrorists operate in cells. Any one cell only knows contacts in a few others. Any phone numbers, email addresses, etc., are committed to memory and are not going to be on the speed dial. Don't any of you watch or read spy movies or novels. Do you think our CIA agents have their contact numbers programmed into their cellphones--they damn well better not.

Sheesh, you people will believe anything this government tells you even if it doesn't make the least bit of sense.
2.5.2006 4:55pm
Michael B (mail):
"Seriously, I don't know where you poor, put upon Republicans get this persecution complex." Freder Frederson

This? Prefaced with a "seriously"?

Freder, the stultifying dullity and witlessness of your response is singularly prominent. I'm not even a Republican and your reply only gets worse as it proceeds from that initial point.

My original response to you is upthread, here (which, btw, references your own put-upon persecution complex). If you're going to respond using such grade-school level forms of dissolute sneers and incompetence and miscomprehensions in general, at least use the name of the person you're responding to in your post. That you're capable of adumbrating additional vapidity and disdain and contempt onto your initial dullity is no doubt an achievement you're proud of - so take full responsibility for it by applying the name of the person you're responding to.

As regards more substantial interests than you are seemingly capable of, pertinent to this discussion, my own views were expressed over a month ago, here at VC, in other words highly similar to Posner's nexus of practical/policy and legal considerations. Additionally, a couple of pdfs, which another commenter in this thread made available, Morgan and Cunningham constitutional, statutory and precedent bearing analysis and Robert's letter to Specter/Leahy, already much referred to herein. Both are of some modest length only.

Also, the third installment of the Posner/Heymann exchange, based upon Posner's original TNR article, is now available as well.

And no, none of that is intended to imply a view that the debate is somehow over in whole or in part, only that, from varied and sundry quarters (the first pdf is from a former Clinton administration official at the CIA and DOJ) the debate is exactly and precisely that: Very far indeed from settled.

A fundamental fact: Both sides are bringing warranted concerns to the fore - forms of surveillance commensurately balanced against the set of existential threats and the concern with civil liberties. And that is why it is very far indeed from settled.
2.5.2006 4:59pm
Medis:
John L.,

You write: "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."

I think "might" is a very important word in this passage. I would agree that the magnitude of the government's interest goes up the more damaging a potential attack could be. However, I would also suggest that the magnitude of the government's interest has to be discounted by the possibility that the United States citizen in San Francisco is not involved in any terrorist plot. In other words, the lower the probability that the United States citizen is involved in such a plot, the lower the interest of the United States government in conducting such surveillance. And so part of what is interesting about the Washington Post article is the suggestion that the probability left after the application of the program's filters is still very low.

Still, I am sympathetic to the notion that in light of the possible magnitude of terrorist attacks, the rational standard may be something less than probable cause (although it may take a constitutional amendment to get such a lower standard, depending on how one reads the 4th Amendment). But I don't think the standard can be negligible, in light of the legitimate interest in privacy shared by the people of the United States.

In any event, such balancing of competing interests is precisely the sort of thing legislatures are supposed to do (and courts insofar as such balancing is required by the 4th Amendment). Indeed, the idea that the Executive branch of the government should decide for itself, with no interference from any other branch of government, how to balance its needs against the rights of the citizens violates the basic constitutional separation of powers.

And in that vein, I can't really improve on the plurality opinion in Hamdi: "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. 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."
2.5.2006 5:05pm
John Lederer (mail):
Kovarsky,

Somehow what immediately came to my mind was the announcer giving the play by play for the Fighting Armadillos in "Necessary Roughness" :

Chuck Neiderman: I'm waiting for a flag.
Chuck Neiderman: There's no flag.
Chuck Neiderman: There should be.
2.5.2006 5:07pm
Medis:
Kovarsky,

One potentially useful thing about that metaphor is the common phenomenon of two fans who rooted for opposite teams both coming away with the conviction that the announcers were biased against them.
2.5.2006 5:12pm
Medis:
After comparing Hayden's statement with the Post story, I'm not really sure he is refuting it.

In his answer to Wallace, Hayden use the identical phrase "content of communications" four times in relatively quick succession. The Post article claims:

"NSA rules since the late 1970s, when machine filtering was far less capable, have said 'acquisition' of content does not take place until a conversation is intercepted and processed 'into an intelligible form intended for human inspection.'"

So, if the Post is right about how the NSA defines the acquisition of "content", then Hayden may be telling the truth insofar as the NSA definitions are concerned. But the program may nonetheless involve a great deal of machine processing of what we would ordinarily think of as content, provided that such content has not yet been put "into an intelligible form intended for human inspection."

In other words, as long as the communications are just being processed by machines as internal differences in electronic charges, and are not yet being turned into human-recognizable sounds or images, then the Post's description may be accurate. And yet Hayden's claim that the program has not yet grabbed the content of the communications may be truthful--once you understand how he is defining his terms.
2.5.2006 5:28pm
Kovarsky (mail):
Freder, the stultifying dullity and witlessness of your response is singularly prominent.

That you're capable of adumbrating additional vapidity and disdain and contempt onto your initial dullity is no doubt an achievement you're proud of...

wow, those are some sentences. bulwer-lytton, here we come.
2.5.2006 5:29pm
Michael B (mail):
Kovarsky,

Exactly. That they are entirely applicable, entirely apropos, is, however, the far more fundamental problem, which problem, among others still, you succeed in ignoring.
2.5.2006 5:36pm
Kovarsky (mail):
You are correct in observing that I am deliberately ignoring the their applicablity.

I'm too overwhelmed by their form.
2.5.2006 5:40pm
Michael B (mail):
As I am overwhelmed by the manifest contentless and evasive quality.
2.5.2006 5:46pm
Freder Frederson (mail):
Michael B.,

Although I am suitably impressed by your ability to use impressive and obscure language to insult me, a trick I am sure you picked up in law school or during the practice of law, your admiration of Posner does not. Posner, in his constant effort to reduce the law a results oriented outcome and his often unintentionally hilarious foray into economic explanations sociology and psychology (his attempt to explain lesbianism is one of the most bizarre things I have ever read) make it extremely difficult for me to take him seriously at all.

In trying to defend this program he is just dead wrong. He either does not understand datamining, databases, or telecommunications or assumes his audience doesn't and therefore is just being dishonest so that he can defend the indefensible. The entire concept that your privacy has not been invaded unless a real person looks at the information gathered is such a patently ridiculous position considering the technology being used that he either doesn't understand the technolgy or does, but hopes we don't and is being deliberately dishonest.

With his argument, he is either being stupid or condescending. A characteristic all too common in his fans.
2.5.2006 5:48pm
Medis:
To attempt a summary:

Here is the setup problem. The Administration claims the following steps are occuring in the following order:

(1) Probable cause that a certain party is an agent of Al Qaeda is established.

(2) The contents of a particular communication involving that party are acquired.

The basic question is how (2) could be occuring so fast after (1) that it would be inconvenient for the AG to issue an emergency roving wiretap order for that party in between steps (1) and (2).

Here is a possible answer. The actual sequence of events could be this (basically, what is reported in the Post):

(1) A communication is electronically captured and mechanically processed.

(2) The machines, acting without human participation, establish what the Administration is calling probable cause that a party to the communication is an agent of Al Qaeda.

(3) The content of the communication is finally "acquired" in the sense that the machines put it into a form that a human would find intelligible.

And if the Post is right about NSA terminology, Hayden may not be ruling out this scenario.
2.5.2006 5:52pm
Michael B (mail):
Freder Frederson,

Your continued miscomprehensions and assumptions continue to amuse. Additionally, as I was initially replying to your own condescension, the amusement is doubled. Now, for a better use of time, good day.
2.5.2006 6:01pm
Mary Katherine Day-Petrano (mail):
"From the Time article: "In accompanying testimony, the Attorney General plans to leave open the possibility that President Bush will ask the court to give blanket approval to the program,...."

WHAT Court will Bush ask?
2.5.2006 6:09pm
Mary Katherine Day-Petrano (mail):
KMaj --"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."

Do you know of any case SCOTUS is considering in which the issue has been raised? Hamdan and Padilla doe not raise this issue. Just curious.
2.5.2006 6:22pm
Medis:
JaO,

I've been thinking about the FISC/test-case issue. If the Administration wanted to play along, why not this? The Administration applies for a FISA order, citing as part of their statement for the basis of their certification evidence acquired through this program, with a description of how the evidence was obtained. As part of the consideration of their order application, they ask for a judgment that this evidence was lawfully obtained.

Of course, this might be assuming that there is some sort of applicable exclusionary rule in the FISC--but I don't see why there wouldn't be. Regardless, it seems to me that the judge could actually require a statement about whether the evidence was lawfully obtained under 1804(d), and could reach a holding on that subject under 1805(a)(5), as long as the lawfulness of the methods was probative in any way with respect to the overall determination.
2.5.2006 6:23pm
Mary Katherine Day-Petrano (mail):
John Lederer, I read what you quote. But I would not believe any such statements unless (1) a FISA production motion were granted and produced a lack of FISA authorization for known surveillance on someone, and (2)Mr. Hayden were put under Oath to answer some questions, such as in a depo or otehr hearing, and asked on the record to explain some of the research one can already obtain that suggests the surveillance is much greate than Hayden says. Another point is wasn't it Hayden (correct me if I got the wrong NSA spokesperson) who admitted shift supervisors have been allowed to sign off on this surveillance? How do we know Hayden knows what his shift supervisors have permitted? I do not think we have enough information to determine whether the quote you present has factual veracity. I am not apologetic for being a skeptic.
2.5.2006 6:28pm
Mary Katherine Day-Petrano (mail):
Volokh watcher, you make many points I agree with. My only disagreement was with your point, "Clearly, the AG can delegate his authority -- as Sec. 510 makes evident." The fact the AG made a delegation does not mean the authority given to him to make this particular delegation was (1) constitutional, or (2) that in making the delegation he did not exceed the authority actually delegated. I have learned over many years not to take a statutory delegation at face value as Gospel. One needs to analyze it critically.

"More of concern is how Arabic communications, likely in some sort of code, can be reviewed in real time. Frankly, I don't see how the NSA can. As a result, the administration's claims that warrantless surveillance is essential to ensure nimbleness becomes weightless."

It may take me a few hours, but let me see if I can go thru my research and come up with some figures for you on the internet about the extent of the surveillance vacuuming. In light of what I have seen, the Administration's argumetn is not weightless in their view. In my view, this does not justify circumventiing the law, and I think the extent of surveillance from all I have read is illegal.

As for how the Arabic communications can be keysearched for code words in real-time, I refer you to my comments on teh VC open thread. If you still don't see how, let me know and I will explain the pros and cons of how my research shows they are accomplishing this. But, as I have said, I see a real problem in the error rate and false positives.

"My complaint with this administration, 4th Amendment concerns aside (big but aside for now), is the apparent attitude -- with no limiting principle -- that in defense of the US homeland, the President is a king/dictator. That's it in a nutshell, right?"

I agree completely.

"What I would like to see is Congress get itself involved in oversight. That's its job after all. If a meaningful law could be put in place, then let's do it.

The problem is the rubber-stampers on Capitol Hill -- like Pat Roberts. Hasn't this administration misjudged (I'm being kind) enough major events in the past 5 years to merit oversight? Then throw in Cheney's patent misrepresentations in the run-up to Iraq and recent comments about NSA domestic spying savings 1000s of lives -- which if true would have been on the front page of every newspaper in real time, like when alleged "dirty bomber" Padilla was arrested, oops, detained -- as well as Bush's SOTU claim that NSA spying would have stopped 9/11 (maybe). [Bush forgot to mention Condi's trademark remark whenever events go badly for this administration that "who coulda antipated it" and the more meaningful fact that we had recorded calls of the 9/11 terrorists but no translators. Add that fact to the August '01 warning Bush got while on VACATION, and you have someone who needs oversight, IMHO.]"

As I said, I have the same problem with the error rate, false positives, and a certain amount of what is in my opinion deception on the American public by the Bush Administration about the NSA-JTTF spying and "use of force" against US citizens on US soil. I also think there are problems with the due process being accorded to non-US citizens. But that is another issue I have never addressed.

"In any event, if I misunderstood your post, apologies in advance." I understood your post, just made a few other points of my own. Apologies are accepted. At least some people are justifiably outraged about the Bush Administrations conduct in this important controversy, and yes, I agree Congress should open a REAL bi-partisan investigation.
2.5.2006 6:44pm
Just an Observer:
Medis,

One problem I see with such a test-case scenario in thee FISA courts is that there is only a one-way appellate path.

If the FISC court denies the warrant application, the case is appealed to the court of review, where there could be an amicus opponent such as the ACLU appointed as in Sealed Case. A ruling of the court of review, I believe, can be appealed to SCOTUS.

But if the lower court finds for the government there is no way to appeal, as far as I can tell. I think President Bush deserves a way to vindicate the merits of his legal claims in the Supreme Court no matter what.
2.5.2006 6:52pm
Mary Katherine Day-Petrano (mail):
"Bush's SOTU claim that NSA spying would have stopped 9/11 (maybe)" I think COngress should immediately open an investigation into whether this is true.

I have found some internet research that suggests several of the 9-11 hijackers were cruising on Jack Abramoff's SunCruz Casino vessels off Pinellas County, FL on about Sept 5th, BEFORE 9-11 occurred. I also found internet research indicating Abramoff's lobbying team has a LOT more contact with the Bush Administration than the President admits, for instance more than 200 contacts with the Dept. of Interior. Abramoff was a Greenberg Traurig partner, and another GT partner still with the firm (on leave) is the President's appointing authority for military commissions (Guantanamo). See, WASHINGTON, D.C. -- January 2, 2004 -- Greenberg Traurig LLP announced today that Secretary of Defense Donald Rumsfeld has named retired Army Gen. John D. Altenburg, Jr. to serve as the appointing authority of military commissions." GT Press Release archived on GT web site.

What I am getting at, is it seems from my extensive research like the President may have known about the 9-11 plans before it occurred, and used 9-11 to accommplish all the things Volokh watcher justfiably complains of.

I just think Congress needs to open a REAL investigation to see if Americans were hoodwinked as a reason to allow the NSA to illegally spy on Americans.
2.5.2006 7:00pm
Mary Katherine Day-Petrano (mail):
Just an Observer, "I think President Bush deserves a way to vindicate the merits of his legal claims in the Supreme Court no matter what." The President has this opportunity at this very moment. I am not allowed to say more about it on this blog.
2.5.2006 7:02pm
Freder Frederson (mail):
Michael B,

I went through this whole thread to see what you have contributed to the conversation other than snide comments and high falutin' insults. And I could find precious little other than to correct me that the Clinton impeachment was about more than just lying about a blowjob, it was also about other things that had nothing to do with the President's official duties and the original subject of the special prosecutor's investigation.

If I were on some other sites I would use more colorful language, but I will follow your lead.

Good day!
2.5.2006 7:06pm
Mary Katherine Day-Petrano (mail):
Volokh watcher, it will still take me some time to locate the figures on the amount of surveillance the computers are scopping up, but in the meantime, I found one of the slightly older NSA patents on the voice recognition that explains how it works a bit. I know it is a little comlicated, but the same works in any language, although Arabic is a slight bit trickier due to things like leaving off word ending in the different dialects of spoken Arabic (i.e., ordinary speakers don't all go around speaking perfect modern standard Arabic). See www.ussrback.com/crypto/nsa/nsa-patents/nsa4897878.htm
2.5.2006 7:20pm
Bruce Hayden (mail) (www):
After being away for a day, and finding some 100 or so posts in the meantime, I need to take a bit of time to try to counter some of the points.

But one quick one is that I have heard on multiple occasions that when the military is rolling up a terrorist network, which is done these days on a relatively routine basis, esp. in NW Iraq, one of the first things they do is to grab cell phones and feed the numbers on the cell phone to the NSA. Presumably, they are uploading both the call histories and the address books of the seized phones. Then, they use that information, plus any other that they have right there to race to the next site. They may do this a number of times trying to outrace word that certain terrorists have been neutralized and/or compromised.

One big problem is that once word gets out that certain portions of the terrorist network have been compromised, leads start to dry up very quickly. Phones are dumped, and people go underground. Apparently, this is usually within a matter of hours of the first raid.

I have no doubt that numbers called by phones seized when capturing or killing terrorists are fed to the NSA and used to try to track other terrorists. As noted, that is pretty old news. The big question I have is whether that has any relevance to the current NSA kerfuffle. It would seem to qualify under the AG's suggestion that time was of the essence in many of these cases. But, still, it is not clear whether or not anyone in the U.S. would be affected by this.
2.5.2006 7:51pm
Bruce Hayden (mail) (www):
One poster above suggested that my interpretation of the 72 hour FISA Emergency Orders provision was contradicted by the CRS report, and then went on to an appeal to authority - that these were all imminent attorneys, and thus, must be correct in their interpretation of 50 USC 1805(f).

I have reread the CRS report, and failed to find where my suggestion that surveilance can't start under 1805(f) until authorized by the AG or his delegate, and, thus, any surveilance done before then would not be covered. I am open to someone pointing out where in that report this is explicitly covered.

But I also note that the report suggests on page 24 that the AG can order electronic surveilance of up to a year without a warrant under 50 USC 1802 of "foreign powers", and then only mentions as an aside that it doesn't apply to terrorist organizations (i.e. Al Qaeda). But that is precisely part of the problem - FISA was designed to deal with Cold War espionage, such as of the Soviet Union (or, now, North Korea and Iran), and not stateless terrorist organizations like we are fighting right now. There, it is woefully inadequate, esp. given that FISA gives the government much more latitude when surveiling foreign states than stateless terrorist organizations.

Which brings us to another point brought out above. Someone asked why warrants weren't acquired for all these known terrorists. One answer is that this is another place where stateless terrorist organizations are treated differently than foreign states. It turns out that warrants to surveil the Soviet Union (back when FISA was passed), or North Korea (today), can be extended indefinately, given probable cause, etc. Not so with warrants to surveil stateless terrorist networks and their agents. They are limited to a maximum of one year of extensions. Thus, any warrants to surveil OBL or Al Qaeda are, by necessity, long expired.
2.5.2006 8:14pm
minnie:
Puzzle question: If "is" is "is", shouldn't "anytime" be "anytime"?


(Videotape, April 20, 2004)

President GEORGE W. BUSH: Now, by the way, anytime you hear the United States government talking about wire tap, it requires—a wire tap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.

(End videotape)


Seems like the reason that the "cover-ups" are where paydirt is hit is because people don't cover up unless they have something to hide.
2.5.2006 8:15pm
Bruce Hayden (mail) (www):
Another problem with the CRS report is that it is, to some extent, the view of one branch of the government, that another branch of the government is overstepping the limits that the first granted. But because it is the views of at least some in that one branch, I see no reason to give it deference over similar interpretations by the other branch.

In other words, when it comes to Separation of Powers, the CRS report is as obviously self-serving as any contrary determination by the Executive branch.
2.5.2006 8:25pm
minnie:
One poster above suggested that my interpretation of the 72 hour FISA Emergency Orders provision was contradicted by the CRS report, and then went on to an appeal to authority - that these were all imminent attorneys, and thus, must be correct in their interpretation of 50 USC 1805(f).

Bruce, yes, that was an "appeal to outside authority" and must be considered as such, but that "authority" seems to include everyone who has spoken to this issue thus far, except you. Can you cite one statement by anyone in the administration or press or legal community going back over a week that says what you are saying, i.e., not that getting warrants is cumbersome, but that a wiretap cannot be put in place until the AG or his deputy have authorized it, and thus the 72 hour window to get a warrant is not really retroactive, as the clock starts ticking only after the AG has given authorization?


Thank you.
2.5.2006 8:26pm
Bruce Hayden (mail) (www):
As to Mary Katherine's point about voice recognition of Arabic, I am currently reading "Empires of the Word: A Language History of the World" by Nicholas Ostler. It is a fascinating book, which, among other things, traces languages through history, and tries to answer questions such as why some languages die out while others spread. Pretty dense reading, but I still recommend it to anyone with interests in these areas.

In any case, at the end of the book, he looks at the present, and ranks languages by usage world wide. No surprise, but Mandarin Chinese is probably #1, with English #2, and Spanish #3 (this ranking is open to debate, esp. given how many Indians speak English - he skates around this by pointing out that for many Indians, English is a (close) second language). But interestingly, he doesn't list Arabic in the top 20. Why? Because, while it is uniform as written (esp. given its integral place in Islam), its many dialects are often not mutually understandable.

In other words, he treats spoken Arabic as multiple languages, given how different its many spoken dialects are to each other. While this is just the opinion of one linguist, it is also symptomatic of the problem of untrained voice recognition of spoken Arabic words.
2.5.2006 8:38pm
minnie:
Bruce, are you the attorney from Dillon, Colorado?
2.5.2006 8:43pm
minnie:
Medis, I would love to think you are right about Specter. It's easy to be seduced by his many positive qualities, as I myself often am.

However, after reading this on glenngreenwald.blogspot.com, I think you are being too optimistic. I post it in entirety (sorry for using up the bandwidth-- I am hoping Lurkster will teach me how to insert links):

"After I wrote what I wrote above regarding the Bush clip, I see that Tim Russert asked Arlen Specter about this today on Meet the Press:



MR. RUSSERT: As you well know, this program began shortly after September 11, 2001. The President, when he ran for re-election in 2004 was up in the great city of Buffalo, New York, on April 20. And this is exactly what he said. Let's watch.

(Videotape, April 20, 2004)

President GEORGE W. BUSH: Now, by the way, anytime you hear the United States government talking about wire tap, it requires—a wire tap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.

(End videotape)

MR. RUSSERT: Was that misleading?


Gee, was it misleading? Just because the President said that "anytime you hear the United States Government talking about a wire tap, it . . . requires a court order. Nothing has changed" -- even though the Government had been eavesdropping for years without a warrant when he said this? Here is what Specter said in response:


SEN. SPECTER: Well, it depends on what the President had in mind. I think it's a fair question for the President. If the President was talking about what goes on domestically in the United States, I think it is accurate. If he had in mind the entire program, including what goes on when one of the callers or recipients is overseas, it's incorrect.

Anyone with any hopes that Specter is going to act with integrity or objectivity at the hearings should go ahead and accept that that's a total delusion so that you're not disappointed. That is an absurd defense. The President clearly was not talking only "about what goes on domestically in the United States." To the contrary, he specifically said that the Government obtains a warrant "anytime you hear the United States Government talking about a wire tap."

The President said: "I always do X," and Specter, to defend him from charges of lying, is basically saying: "Maybe he meant that he sometimes does X." For Specter to defend the President this way conclusively reflects that Specter, as usual, will make some noises about being indepedent, get everyone's hopes up that he will exercise his own judgment, and then fall back into line slavishly behind the President.

I expect there to be some aggressive and effective questioning from Republican Senators Brownback and Graham, as well as Kennedy, Feingold, and Durbin. Anything else will (pleasantly) surprise me.

After I wrote what I wrote above regarding the Bush clip, I see that Tim Russert asked Arlen Specter about this today on Meet the Press:



MR. RUSSERT: As you well know, this program began shortly after September 11, 2001. The President, when he ran for re-election in 2004 was up in the great city of Buffalo, New York, on April 20. And this is exactly what he said. Let's watch.

(Videotape, April 20, 2004)

President GEORGE W. BUSH: Now, by the way, anytime you hear the United States government talking about wire tap, it requires—a wire tap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.

(End videotape)

MR. RUSSERT: Was that misleading?


Gee, was it misleading? Just because the President said that "anytime you hear the United States Government talking about a wire tap, it . . . requires a court order. Nothing has changed" -- even though the Government had been eavesdropping for years without a warrant when he said this? Here is what Specter said in response:


SEN. SPECTER: Well, it depends on what the President had in mind. I think it's a fair question for the President. If the President was talking about what goes on domestically in the United States, I think it is accurate. If he had in mind the entire program, including what goes on when one of the callers or recipients is overseas, it's incorrect.

Anyone with any hopes that Specter is going to act with integrity or objectivity at the hearings should go ahead and accept that that's a total delusion so that you're not disappointed. That is an absurd defense. The President clearly was not talking only "about what goes on domestically in the United States." To the contrary, he specifically said that the Government obtains a warrant "anytime you hear the United States Government talking about a wire tap."

The President said: "I always do X," and Specter, to defend him from charges of lying, is basically saying: "Maybe he meant that he sometimes does X." For Specter to defend the President this way conclusively reflects that Specter, as usual, will make some noises about being indepedent, get everyone's hopes up that he will exercise his own judgment, and then fall back into line slavishly behind the President.

I expect there to be some aggressive and effective questioning from Republican Senators Brownback and Graham, as well as Kennedy, Feingold, and Durbin. Anything else will (pleasantly) surprise me."
2.5.2006 9:15pm
minnie:
Yikes, sorry for that double excerpt! I promise to make a donation to this site this week, which I was meaning to do anyway :)
2.5.2006 9:37pm
Bruce Hayden (mail) (www):
Minnie:

Yes, much of the time. In reality, I bounce between Dillon and Golden (CO), with occasional sojourns to Phoenix and Las Vegas (no gambling, sorry). This time of year, I spend more time in Dillon than Golden, for obvious reasons (for anyone interested, there are four ski areas within maybe 20 miles of Dillon). But in a couple of months, during "mud season", I will be mostly skied out, and spend a couple of months away from Dillon, just checking my mail there maybe once a week.

Note though, most of my law practice is patent prosecution. One of the reasons that I like patent law is just that - that I can live pretty much where I want and work a fairly flexible schedule. In my case, this translates into living much of the year in a ski resort community (Dillon, CO).
2.5.2006 9:43pm
Freder Frederson (mail):
And how about Russert? Shouldn't the question have been, "wasn't the president lying with that statement?"
2.5.2006 9:46pm
Just an Observer:
minnie,

It did not surprise me or bother me one bit that Specter didn't take Russert's bait on the Bush sound bite.

Specter is a Republican, and it is not his objective to call the Republican President a liar, or even to embarrass him. We all can make up our own minds about Bush's credibility.

Rather, Specter's interest is in defending the rule of law and congressional relevance. Given that he is outnumbered within his own party, even on his own committee, and is bucking the White House and his majority leader, I think Specter deserves more admiration than scorn at this point.

The Judiciary hearings are the only oversight this matter is likely to get. A handful of principled Republican senators are the only thing frustrating the White House strategy of burying very serious legal issues under a cloud of partisan propaganda.
2.5.2006 9:57pm
Bruce Hayden (mail) (www):
Minnie:

In regards to Sen. Specter, it is not clear how much he knows about the NSA program. I note that he is on the Judiciary (chair), Appropriations, and Veteran's Affairs Committees, as well as chairing the Subcommittee on Labor, Health and Human Services, and Education. But notably lacking is membership on the Intelligence Committee, some of whose members presumably know the actual details of the NSA program.

My point here, and as to much of what has been said on both sides of the issue, is that there is a lot that we don't know about the NSA program at issue, and many of the relevant details are highly classified. Much of the Senate and the House is in the same situation as we are here.

So, we are relegated to almost reading tea leaves. Someone who is in the know says something cryptic, and everyone (including me, of course) interprets away, trying to piece together what is really going on. But those in the know who are trying to defend the program are often so cryptic because they are trying not to give away too much critical information. And, thus, it is quite conceivable to me that much of what we all suppose is going on isn't, and visa versa.

Sen. Specter seems to me to be speaking in generalities, giving the impression that he doesn't have much more information than the rest of us have.
2.5.2006 9:58pm
Bruce Hayden (mail) (www):
Russert has his own problems. His testimony seems central to the case against Scooter Libby, and that puts him in the cross hairs professionally. No doubt, he is going to have to testify under oath in that case, and will, thus, be part of the news, and not merely a news reporter.
2.5.2006 10:01pm
John Lederer (mail):
Minnie:

Include the paragraph before the excerpted quote from Pres. Bush and, yes, it is misleading, or at least the President's explanation of what wiretaps he was referring to is credible.

In any event, I you say A said X, and A responds -- "yes but it does not mean what it seems to say because I was referring to the prior statement" to then repeat X without including the prior sentence is not a reasonable effort to show the complete facts. It is just advocacy and not very convincing advocacy since it undermines the advocate's ethos.
2.5.2006 10:32pm
minnie:
Justin, you make good points. This is politics, after all. I'll watch, and hope for the best.

Kennedy's staff has released his line of questioning. They say he is going to take an "unexpected" approach, and their letter outlining it is posted over on the Glenn Greenwald site.

Essentially, it seems Kennedy is going to follow the approached developed over the last few days by the people over at the Huffington Post, which is, essentially, don't concentrate on legal technicalities that are too nuanced for the country at large to understand. Also, anti-terrorism is a big winner for Bush now. Instead, concentrate on the utter ineffectiveness of this practice of illegal, broad sweep domestic spying which invades the privacy of Americans while doing little to apprehend terrorists.

I don't know if this is a wise approach or not.

Bruce, appealing to outside authority is a valid technique when making a logical argument, and then the listeners have to weigh how much respect those outside authorities should be granted.

I'll stick with the 14 lawyers who wrote that letter, especially Marty Lederman, who, from what I've read, seems like a very smart, honorable person. You are completely discredited in my eyes by statements which you highlight on the front page of your website, such as:

-Arianna supposedly had a houseboy, probably illegal Mexican, whom she forced to blog (and have sex?).
- David Rees wants to meet Wonkette for the anal sex she often talks about.
2.5.2006 10:38pm
minnie:
John Lederman, I don't exactly follow your post, but if I misled anyone by the excerpt I posted, I am sorry. I wasn't aware I was doing that and it wasn't my intent to do so. I was just copying and pasteing something from another site, as I don't know how to do links yet.
2.5.2006 10:43pm
Medis:
Bruce,

I think a single extension of certain orders under FISA are limited either to their original duration or to one year, but I don't see anything in the statute limiting the number of extensions for a given target. But if you have a source for that claim I would be interested in seeing it.

minnie,

First, I agree with JaO that it is not Specter's job to say whether the President was lying in that statement, and indeed I am somewhat surprised that he went so far as to suggest the President might have been doing so.

Anyway, here is the quote in context:

"Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

But a roving wiretap means -- it was primarily used for drug lords. A guy, a pretty intelligence drug lord would have a phone, and in old days they could just get a tap on that phone. So guess what he'd do? He'd get him another phone, particularly with the advent of the cell phones. And so he'd start changing cell phones, which made it hard for our DEA types to listen, to run down these guys polluting our streets. And that changed, the law changed on -- roving wiretaps were available for chasing down drug lords. They weren't available for chasing down terrorists, see? And that didn't make any sense in the post-9/11 era. If we couldn't use a tool that we're using against mobsters on terrorists, something needed to happen.

The Patriot Act changed that. So with court order, law enforcement officials can now use what's called roving wiretaps, which will prevent a terrorist from switching cell phones in order to get a message out to one of his buddies."

To be clear, I do think this statement--and many other statements of the Administration about the USA-PATRIOT Act--was deceptive insofar as it implied that the Administration was actually rigorously following FISA as amended by the USA-PATRIOT Act. But given the context, it is remotely plausible that the President was merely talking about roving wiretaps throughout. I wouldn't say that was a natural reading, but because such an argument could be made, I don't see any point in Specter blowing his political capital on this particular issue.
2.5.2006 10:51pm
Bruce Hayden (mail) (www):
Medis:

Look at 50 USC 1805(e)(2) and note the special treatment for 1801(a)(4),(5), and (6) "Foreign power[s]" under 1805(e)(2)(A). Al Qaeda is I think best characterized as a "Foreign power" under 1801(a)(4) as "a group engaged in international terrorism or activities in preparation therefor".

50 USC 1805(e)(2)(B) limits "Agents of a foreign power" under 1801(b)(1)(a) to one year of extensions, and that subsection explicitly includes agents of 1801(a)(4) "Foreign powers", such as Al Qaeda.
2.5.2006 11:10pm
Medis:
Bruce,

1805(e)(2) states:

"Extensions of an order issued under this subchapter may be granted on the same basis as an original order upon an application for an extension and new findings made in the same manner as required for an original order, except that
(A) an extension of an order under this chapter for a surveillance targeted against a foreign power, as defined in section 1801 (a)(5) or (6) of this title, or against a foreign power as defined in section 1801 (a)(4) of this title that is not a United States person, may be for a period not to exceed one year if the judge finds probable cause to believe that no communication of any individual United States person will be acquired during the period, and
(B) an extension of an order under this chapter for a surveillance targeted against an agent of a foreign power as defined in section 1801 (b)(1)(A) of this title may be for a period not to exceed 1 year."

As an initial observation, (A) and (B) refer to "an extension". I don't see any reference to multiple extensions being prohibited. So, textually, it seems to me that 1805(e)(2)(B) just says that any given extension for agents under 1801(b)(1)(A) can be for one year, but it does not limit the number of such one-year extensions.

Now, you might ask what 1805(e)(2)(B) is actually doing. What it is doing is allowing extensions for a long period than the original orders. Under 1805(e)(1)(B), "an order under this chapter for a surveillance targeted against an agent of a foreign power, as defined in section 1801 (b)(1)(A) of this title may be for the period specified in the application or for 120 days, whichever is less." So, the original order can only be for up to 120 days. However, extensions can be for up to a year.

Again, I see no limit on the number of extensions, or the total time that the extensions can add up to. But if you have a source saying that I would be interested.
2.5.2006 11:36pm
minnie:
Medis, nice work. That clears that up in my mind at least.

JaO, it was your post about Specter I meant to agree with. Your points are logical. I'll put on my "optimist hat" again, and hope for the best tomorrow.

Volokh watcher and Mary: fascinating posts.

Early risers: don't forget the discussion about this issue tomorrow morning on Washington Journal on CSPAN at 7:45. We'll get to see two people on opposite sides, each very well briefed on all the legal issues, debate the matter.
2.5.2006 11:58pm
Alan Meese (mail):
To: Medis:

I am glad to hear that you agree that Congress cannot remove the President from "military command." (Some seem to think Congress can do just that or at least constrain his powers so much as to make such command meaningless.) But, doesn't military command include the power to, say, command military units to gather intelligence? When Kennedy ordered U-2s to fly over Cuba, he was issuing military commands. Assuming that Congress had authorized military force against Cuba, could they have nonetheless prohbited JFK from commanding U-2s to spy on Cuba? How would you define the authority to "command?"

What is the difference between ordering U-2s to surveille Cuba, and ordering the NSA to surveille phone calls from Cuba, for instance?

What else could Justice Jackson have meant when he said the President's power of command is "exclusive?"
2.6.2006 1:17am
Alan Meese (mail):
Medis:

I don't think that anyone is asserting that the Commander-in Chief clause authorizes the President to violate the law. Instead, people are asserting that Congressional imposition of civilian law enforcement standards on the Commander-in-Chief, after Congress has authorized war, violates Article II, given Justice Jackson's statement that the President's power of command over the armed forces directed at a foreign foe in wartime is "exclusive." Since the President must take care that the Constitution is faithfully executed, he need not follow a law that violates the Constitution. James Madison, T. Jefferson, Reagan, GHWBush, James Wilson, William Barr, Jimmy Carter, Woodrow Wilson, Walter Dellinger, etc. all agree with this vision of the President's take care obligation, particularly where Congress tries to diminish the President's authority.

By analogy, if Congress required the President to pardon all terrorists, he would not have to issue such pardons. He could instead decline to do so. This would not rest on an assertion that the pardon clause allows the President to break the law. It would instead rest on an assertion that the Take Care Clause requires the President to adhere to the Supreme Law --- the Constitution --- which vests the pardon power in the President.
2.6.2006 1:35am
Alan Meese (mail):
To Volokh Watcher:

Perhaps the AG can delegate his power. How many delegatees would you expect he would need? Would he have to post one at each listening post, 24 hours per day? Or is there only 1 NSA listening post? Could several people at various listening posts act as Attorney General at once? Does anyone know of any such regulations under which the AG authorizes several people to Act as AG at once? Or, any such regulations, period?
2.6.2006 1:39am
Alan Meese (mail):
To: Just an Observer:

1) Could Congress have used its powers to "make rules governing the armed forces" to criminalize FDR's decision to invade at Normandy instead of the Pas de Calais ? To ban Nimitz from intercepting Japanese Communications? The latter ban would simply be a general rule of the sort you seem to say is just fine. What, then, do you make of Justice Jackson's assertion that the President's power of Command is "exclusive?" What is left of the power of command if it does not include the power to decide where to invade or whether to listen in on the enemy?

2) Or, to put it another way, do you agree with Richard Epstein that Congress may, after creating a modern army, require the President to fight with Rubber Bullets? I don't want to put words in your mouth.

3) I do not see the source in the AUMF or the Constitution of the distinction you may be drawing between foreign and domestic actions. The "make rules to govern the armed forces" language makes no such distinction. Nor does the AUMF, which says that the Al Qaida attacks still present a threat to the USA. Nor does the Commander-in-Chief clause or the declare war clause. If Canadians invaded the US tomorrow, would Congress have more authority under the "make rules" clause than if we invaded Canada, after Congressional Authorization? Why is Congress's power greater when they regulate the Commander-in-Chief's actions domestically? It would seem that, if the country itself is threatened, the Commander-in-Chief would need even more flexibility. Perhaps I am misconstruing your statements. If so, I apologize. It's late.
2.6.2006 1:50am
minnie:
News excerpt:

Sen. Judiciary Committee Chairman Arlen Specter said Sunday that while President Bush's terrorist surveillance program is a "flat out violation" of the 1978 Foreign Intelligence Surveillance Act, it may be entirely legal because of powers granted the president by the Constitution.

"There is an involved question here . . . as to whether the president's powers under Article 2, his inherent powers, supersede a statute." Specter told NBC's "Meet the Press."

The Pennsylvania Republican said that if the FISA statute "is inconsistent with the Constitution, the Constitution governs and the constitutional powers predominate."
2.6.2006 4:15am
Bruce Hayden (mail) (www):
As I reread 1805(e), I am coming to agree. My problem I think was that it appears by this reading that the time limit on an original order against a terrorist organization is 90 days, but an extension can be for a year. On the other hand, for other types of surveilance targets, the extensions tended to mirror the original orders in potential length. As this is a strange result, I was reading into it that all extensions of 1801(a)(4-6) "Foreign power[s]" warrants were limited to the year, in 90 day segments.

I should add that some of this is in the PATRIOT Act, which means that it may not get renewed, or this part may get dropped, though I don't know if that would really hurt the govt. here, as they could already renew warrants indefinately.

Finally, as I dug into the legislative history of the various portions of FISA trying to understand this, I ran into the 72 hour Emergency Orders provision. This too appears to be part of the PATRIOT Act, upping the time limit from 24 to 72 hours. But interestingly, contradicting a point that I have made repeatedly, the explanation for this seems to indicate that the 72 hour provision CAN cover surveilance started before AG approval. I don't get this from the language of the statute itself, but rather, as noted, from the legislative summary.
2.6.2006 5:00am
Just an Observer:
Alan Meese:

1) Could Congress have used its powers to "make rules governing the armed forces" to criminalize FDR's decision to invade at Normandy instead of the Pas de Calais? ...

When I pointed out that you were making a strawman argument, you replied by inventing ever more ridiculous strawmen, which obviously are not rules but inteference with operational orders. You then ask, "What, then, do you make of Justice Jackson's assertion that the President's power of Command is 'exclusive?'"

Here is what Jackson said in the very next sentence of his opinion, immediately after the quote you plucked from its context in your original posting:

His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making branch [343 U.S. 579, 646] is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. What the power of command may include I do not try to envision, but I think it is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for the military and naval establishment.


Justice Jackson was articulating a rather different view of the "exclusive" executive war power than you would have us adopt by your highly selective a quotation from his opinion. In fact, he outlined a substantial role for Congress and the judiciary:.


When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [343 U.S. 579, 638] the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system


Of course, in Hamdi v Rumsfeld, we have a more recent application of the Youngstown precedent, applied to the very conflict at issue, the so-called war on terror authorized by the 2001 AUMF. In that case, the Bush administration made a distinct claim that the executive branch held exclusive dominion over an enemy combatant actually captured on a foreign battlefield. But that separation-of-powers claim was rejected by the court 8-1. Explaining its reasoning on that point, the plurality opinion said:


We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet &Tube, 343 U. S., at 587. 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.


2) Or, to put it another way, do you agree with Richard Epstein that Congress may, after creating a modern army, require the President to fight with Rubber Bullets? I don't want to put words in your mouth. Then please don't.

Congress does have power to authorize and fund weapons systems (which principle, I gather, you are not disputing). I will not engage another preposterous strawman argument, other than to note that we also could invent hypothetical orders issued by the President that would be just as preposterous, and have a rhetorical battle of strawman versus strawman. It would be irrelevant to the actual legal issues at hand.

3) I do not see the source in the AUMF or the Constitution of the distinction you may be drawing between foreign and domestic actions.

My point was about how the court interpreted the AUMF in Hamdi, which the Bush adminsitration claims as precedent for applying the AUMF to the question of surveillance of citizens within the United States. (As I write this, I am listening to the attorney general reiterate that very argument.)

In Hamdi, the court carefully grounded its opinion in the factual context of detention on a foreign battlefield. The court has yet to address whether this principle extends to domestic locations, or to wiretapping covered by existing statutes and judicial procedures. The first part of that question is raised in the Padilla case, of which the government is scrambling to avoid review in the Supreme Court despite a favorable ruling at the circuit level. Quite obviously, the government does not expect a favorable ruling in that case.
2.6.2006 10:38am
Bruce Hayden (mail) (www):
AG Gonzoles has an editorial in the WSJ today. Nothing really new there, except that he pointed out that Wilson in WWI and FDR in WWII authorized the interception of all communications to/from the U.S.
2.6.2006 10:53am
Medis:
Alan Meese,

You raise a lot of different questions and hypotheticals, and it may be worth going through them somewhat systematically.

(1) "But, doesn't military command include the power to, say, command military units to gather intelligence?"

A: Yes, but only in compliance with applicable military law. FISA, of course, does not take away the President's power to command the NSA, FBI, or any military surveillance unit. It just establishes certain substantive standards and procedures those organizations must follow--but ultimately the President (and those who answer to him) are still giving the orders.

Indeed, consider what is required for a given target to be surveilled by the NSA. FISA sets up standards and procedures for certain target/surveillance combinations (and says nothing about others). But FISA doesn't actually direct the NSA to target anyone for surveillance. In order for the NSA to actually surveil anyone, the President (or those answering to him) have to issue the relevant orders. That is what military command is: directing particular operations, which FISA does not do.

(2) "When Kennedy ordered U-2s to fly over Cuba, he was issuing military commands. Assuming that Congress had authorized military force against Cuba, could they have nonetheless prohbited JFK from commanding U-2s to spy on Cuba?"

A: I don't think Congress could make it generally lawful for the military to use U-2 spy planes, but then pass a law prohibiting JFK from using such tactics with respect to Cuba. That would be a specific order. But if Congress had generally prohibited the military use of such spy planes, then JFK could not issue a lawful order to that effect.

For example, consider if the United States had signed a treaty with a number of nations, including Cuba, prohibiting such use of spy planes even during times of war. Congress could pass a law making such use of spy planes a crime against the laws of nations. In such a case, all military commanders, including the President, would be bound by this treaty and law when issuing orders.

(3) "How would you define the authority to 'command?'"

A: Generally, it is the authority to order, direct, or instruct someone to do things. But having a military command does not imply that such a commander has the authority to issue unlawful orders. Again, think of any particular officer in the military--can they issue orders that would violate the UCMJ or any other military law? I'd say no. And even when the President is acting as the highest general/admiral in the armed forces--the Commander in Chief--neither can he.

(4) "What is the difference between ordering U-2s to surveille Cuba, and ordering the NSA to surveille phone calls from Cuba, for instance?"

A: There might be a number of relevant legal differences, but I assume you are talking about with respect to military command. I'd say there is no difference in that sense: Congress could not issue such orders itself, nor could it specifically prohibit the President from issuing such an order in a particular situation. But it could generally prohibit such military activities, in which case no military commander, including the President, could issue such an order.

(5) "What else could Justice Jackson have meant when he said the President's power of command is 'exclusive?'"

A: As I noted above, this is an easy question. Congress could not place some other military commander in a coequal position with the President, such as by carving out some part of the armed forces as not subject to the President's command, or making the President part of a committee of commanders. Again, the President is the top officer for the entire military command hierarchy, and he shares that power with no one. But, being in that position does not give him the authority to issue unlawful orders.

(6) "I don't think that anyone is asserting that the Commander-in Chief clause authorizes the President to violate the law. Instead, people are asserting that Congressional imposition of civilian law enforcement standards on the Commander-in-Chief, after Congress has authorized war, violates Article II, given Justice Jackson's statement that the President's power of command over the armed forces directed at a foreign foe in wartime is 'exclusive.' Since the President must take care that the Constitution is faithfully executed, he need not follow a law that violates the Constitution."

A: I agree that the President does not have to execute an unconstitutional law, but I do not think FISA is unconstitutional. Indeed, I think your argument to that effect is circular.

First, as an aside, I would note that FISA is explicitly NOT a civilian law enforcement statute (that would be Title III, not FISA), and it explicitly DOES apply during times of war. So, while FISA is not ONLY a military law, it certainly is a military law in part.

Anyway, as I explained in prior answers, I don't think FISA in any way removes the President from his exclusive role as Commander in Chief, just as the UCMJ or any other military law does not remove any other commander in the Armed Forces from his or her command. Again, what makes the President's command "exclusive" is that only he has this position in the military command structure. That it no way implies that as the exclusive commander, he can issue unlawful orders.

So, it is not enough to say that FISA is unconstitutional because it is a law that the President would have to obey when issuing military commands. Indeed, if FISA is unconstitutional for that reason, then of course you really are saying that the President can issue "unlawful" orders, because any law that in any way limited his orders would, on your analysis, be unconstitutional.

In other words, it seems to me your argument is circular: because FISA is unconstitutional, the President does not have to obey it. But FISA is unconstitutional precisely because it is a law that the President would have to obey. That only makes sense if all laws that the President would have to obey are unconstitutional--and I really hope Congress is paying attention to that idea.

(7) "By analogy, if Congress required the President to pardon all terrorists, he would not have to issue such pardons."

A: By now, why this hypo is disanalogous to FISA should be obvious. In this hypo, you have Congress directing the President to do something in particular. That Congress cannot do. Similarly, Congress could not direct that the President order the NSA to surveil some particular person. But FISA does not do that.

As an aside, I might note that each presidential power is a bit different, so one should be careful about overanalogizing between powers.

(8) "Could Congress have used its powers to 'make rules governing the armed forces' to criminalize FDR's decision to invade at Normandy instead of the Pas de Calais?"

A: Again, this would be a specific order. So, no.

(9) "To ban Nimitz from intercepting Japanese Communications? The latter ban would simply be a general rule of the sort you seem to say is just fine."

A: I find it interesting that you see this as a "general rule" in light of the fact that it names both a particular Admiral and a particular country, all presumably during a particular military campaign. Obviously, that isn't a general rule at all--it is a specific order.

(10) "What, then, do you make of Justice Jackson's assertion that the President's power of Command is 'exclusive?' What is left of the power of command if it does not include the power to decide where to invade or whether to listen in on the enemy?"

A: This is an interesting mix of different hypos. As discussed above, making particular decisions about where to invade on a particular occasion is a command issue. Similarly, deciding whether to listen in on a particular enemy unit on any particular occasion, providing such surveillance was lawful, would also be a command issue. Of course, FISA makes no such decisions.

But whether in general we should be listening in on "enemy communications" is not a commmand issue. That is a basic policy issue, and therefore suitable for resolution by law. Indeed, we can again imagine a treaty banning such surveillance and a law enforcing that treaty, in which case US military commanders, including the President, would be bound to follow this law.

(11) "Or, to put it another way, do you agree with Richard Epstein that Congress may, after creating a modern army, require the President to fight with Rubber Bullets?"

A: Again, Congress could not direct the President, or directly order the military, to use rubber bullets on any particular occasion. But it could generally prohibit the use of real bullets if it wanted to. Of course, that would be foolish. In that sense, this hypo is sort of like noting that the President has the lawful authority to order our armed forces in the Middle East to surrender to Bin Laden. That is true, but it isn't going to happen.

(12) "Why is Congress's power greater when they regulate the Commander-in-Chief's actions domestically?"

A: I know this wasn't directed to me, but I wanted to note that I don't think Congress does have less power to regulate foreign military actions, in light of the constitutional provision allowing them to define offenses against the "laws of nations."

But historically, it is true that Congress has shown more regard for the rights of United States persons. Indeed, the Revolutionary War Articles of War contained several provisions designed to protect the people of the States from abuse at the hands of the Continental Army. In many ways, FISA is just like that: it is a law regulating the government, including the military, which is designed to protect the people of the United States from abuses of power.

(13) "It would seem that, if the country itself is threatened, the Commander-in-Chief would need even more flexibility."

As I noted above, that is not how the Founders saw it, and for an obvious reason. When military action is going on inside the United States (as in the Revolutionary War), that is all the more reason to fear that the people of the United States will suffer abuses at the hands of the Armed Forces. So, the Founders placed special restrictions on domestic military actions precisely to protect against such abuses.

General summary:

You may not like this definition of the Commander in Chief power, but it is simply wrong to say that it "deletes" the Commander in Chief power, or renders it in any way less "exclusive". Rather, what it does is give the President no more power to issue unlawful orders than any lower-ranked military commander, but it still protects his exclusive position at the top of the military command hierarchy.

And I think the evidence is very strong that the Founders saw themselves as creating exactly that sort of system: one where the President would issue specific orders, but Congress would establish military law whicn even the President had to faithfully execute and obey. And, as noted above, the Founders saw protecting the people of the United States from abuses of military power as one of the valid purposes of military law--and that is what FISA is all about.
2.6.2006 11:11am
srg (mail):
Medis,
You said, in response to Alan Meese,

"Again, Congress could not direct the President, or directly order the military, to use rubber bullets on any particular occasion. But it could generally prohibit the use of real bullets if it wanted to. Of course, that would be foolish."

Here I think you are back to the question you and I discussed a week or so ago: what should the President do if he determines that fighting a war declared or implicitly declared by Congress is made impossible or nearly so by a law passed by Congress (no use of bullets, restrictions under FISA). You argued, if I remember correctly, that the contradiction was factual but not legal and that the President was bound by the laws, but you did not amplify on this. I hope you will. If the President really feels that obeying the law would lead to a disaster which would make it impossible for him to fulfill the desires of Congress as embodied in the declaration of war, then it is not clear to me that you are right. As the beginning of an answer to this dilemma, I would agree that if Congress passed an explicit law AFTER the declaration of war saying there could be no use of rubber bullets, or that there would be no money for rubber bullets, the President could not legally direct the armed forces to buy and use them anyway. (Of course, he could do so illegally, and hope that retroactively Congress would realize that he had been right. He would risk impeachment by doing so.) Similarly, if the Congress were now to pass a law banning the type of wiretaps the President has ordered. But we are not there now and the situation may be ambiguous enough (I am far from sure) to justify the administration's position. (All this assumes that FISA has not been followed, which has by no means been definitively proved.)
2.6.2006 11:43am
Bruce Hayden (mail) (www):
Medis argues essentially that the Administration is taking too broad of a defintion of the President's Commander in Chief power and role - which at least was evident in AG Gonzoles' WSJ article today. But I see his definition of FISA impacting operational decisions of the President, et al. Can he or can he not do signals interception of potential enemy signals coming into this country?

I find this far different than Congress' traditional role, such as in enacting the UCMJ. There, conduct, per se, of a war is not really impacted, but rather, just the oversight of the troops.

Instead, I see this more as equivalent to Congress mandating the use of rubber bullets, as suggested above. Strict adherance to the wording of FISA would seem to do just that - restrict the type of weapons the President can order used.

I was going to backtrack a bit, remembering that at some point, there was a move to ban "cop killer" bullets for the military. But that is clearly not the case currently. Obviously, the depleted uranium rounds from an A-10 and the .50 caliber rounds of the M-2 are armor piercing, and, indeed, special armor piercing rounds (I think very similar to the banned Teflon coated "cop killer" bullets) are apparently routinely issued in Iraq and Afghanistan for perimiter defense to prevent another Lebannon Barracks type attack.

So, maybe a better scenerio would be for Congress to have banned military use of Teflon coated "cop killer" bullets. The military has real need for these - for lighter machine guns to be able to take out suicide bombers trying to ram their explosive laden lightly armored vehicles into American and Iraqi positions. Yet, as I noted, awhile back, there was a move to ban these bullets even for the military.
2.6.2006 12:01pm
Freder Frederson (mail):
So, maybe a better scenerio would be for Congress to have banned military use of Teflon coated "cop killer" bullets. The military has real need for these - for lighter machine guns to be able to take out suicide bombers trying to ram their explosive laden lightly armored vehicles into American and Iraqi positions. Yet, as I noted, awhile back, there was a move to ban these bullets even for the military.

Well, you're just wrong about that. The president is bound by the various conventions of war just like the lowliest private, and presumeably, in his role as commander in chief, be held responsible for actions in the field. The question of what weapons are legal are certainly within the realm of both the Congress and the President through their duties in negotiating and ratifying treaties. And I suppose Congress could also pass laws to ban or limit the use of entire classes of weapons (there is a current debate about whether napalm is a chemical weapon and whether it is legitimate to use White Phosphorus as an anti-personnel weapon).

The type of rounds you refer to raise all kinds of interesting questions since after World War I all kinds of weapons that are routinely used today by law enforcement were banned under the first Geneva Conventions. Almost all non-lethal chemical weapons, even tear gases, are prohibited, as are exploding and hollow point bullets. And it is always interesting to ask a soldier whether it is legal to use a .50 cal machine gun against people--there is great confusion about that one. Generally, it is technically illegal to use a weapon designed to destroy vehicles against people.
2.6.2006 12:16pm
Medis:
srg,

I think we basically agree that ultimately Congress has the final say on matters of general policy, but there might be emergency circumstances in which the President could lawfully assume that Congress had not prohibited an action despite some apparently contradictory statute.

I'd say a few conditions have to be met for that notion to apply. First, the emergency in question would have to be unanticipated. In other words, if Congress had already specified what should be done in that particular kind of emergency (a war, say), then there would be no grounds for claiming Congress had not prohibited the action.

Second, the President could only take such an action if he could not first use his power to recommend a change in the statute, giving Congress an opportunity to address the alleged problem in the law. Of course, in a true emergency that could be the case, but as soon as Congress could act, the President would need to seek retroactive authorization.

I don't think this case meets either of these conditions. First, Congress explicitly provided for wars in FISA, and even more explicitly provided for dealing with international terrorism with full knowledge of 9/11 in FISA as amended by the USA-PATRIOT Act. Second, as the USA-PATRIOT Act proves, Congress has long since had enough time to pass legislation in light of this threat.

So, I think the President really has no continuing justification for bypassing FISA. But he may well have had such a justification for some limited period of time--perhaps from 9/11 until 15 days after the 2001 AUMF, or perhaps until the passage of the USA-PATRIOT Act at the latest. In other words, to use your analogy: perhaps the President had the lawful authority to order the use of "non-rubber bullets" for some time after 9/11, but once Congress amended the "rubber bullet" law, that authority has ceased.

Although I might note that I don't think FISA is really a "rubber bullet" law, because it does not actually ban anything. Rather, it simply requires certain procedures to be followed when doing certain things.
2.6.2006 1:02pm
Medis:
Bruce,

You say: "But I see his definition of FISA impacting operational decisions of the President, et al. Can he or can he not do signals interception of potential enemy signals coming into this country?"

A: Sure, he can do such surveillance provided that he complies with any applicable law, including FISA. Of course, FISA "impacts" his actions in that he might not be able to do everything that he wants to do. But all laws "impact" decisions in that sense. Indeed, that is why to say FISA is an unconstitutional limitation because it "impacts" his decisions implies that ALL laws must be unconstitutional limitations because ALL laws "impact" our decisions in some way.

You say: "I find this far different than Congress' traditional role, such as in enacting the UCMJ. There, conduct, per se, of a war is not really impacted, but rather, just the oversight of the troops."

A: With all due respect, I don't think you are familiar with the UCMJ and its predecessor, the Articles of War, if you believe this. I won't belabor the point, but I have repeatedly quoted passages from the Founders' own Articles of War which regulate conduct during war in the name of protecting the people of the United States from abuses of military power. I might note that the Constitution also explicitly authorizes Congress to pass all sorts of specific laws about conduct during war, including defining offenses against the laws of nations. That is why I note hypothetical treaties in many answers above--there should be note doubt that under the Constitution, Congress can pass laws requiring the military to obey our treaty obligations.

You say: "Strict adherance to the wording of FISA would seem to do just that - restrict the type of weapons the President can order used."

A: Again, I'll just note that this seems wrong--FISA doesn't prohibit any form of electronic surveillance. Rather, it just establishes certain procedures that must be followed.

But in any event, I think Congress could lawfully ban all electronic surveillance if it wanted to. But it won't, no more than the President will order the military to surrender to Bin Laden.
2.6.2006 1:13pm
srg (mail):
Medis,

Of course, the AG is denying that they have bypassed FISA and he is using the AUMF to justify their policies, especially by reference to the Hamdi decision. I think you have already dealt with this at length. I still think Professor Kerr's arguments against using the Hamdi precedent are the weakest part of his argument, but I can see a possibly stronger argument being that while detaining someone requires actual force, surveillance does not, so that Hamdi flows from the AUMF more easily than warrnatless wiretapping does.
2.6.2006 1:15pm
srg (mail):
I have to qualify my last post; Professor Kerr does use this argument against the Hamdi precedent as one of his three arguments. It is the other two that I find weaker.
2.6.2006 1:29pm
Medis:
srg,

While I think it is possible to distinguish battlefield detentions from non-battlefield surveillance, I actually think that question is irrelevant. The detention in Hamdi was not contrary to any specific statute--the only question was whether the 2001 AUMF satisfied the condition that such detention be authorized by statute.

In contrast, here 18 USC 2511(2)(f) provides that the PROCEDURES in Title III and FISA are the "exclusive means" by which this surveillance could be conducted. So, even if the 2001 AUMF authorized such surveillance, unless the 2001 AUMF also repealed this provision, conducting such surveillance outside the PROCEDURES in FISA was unlawful.

In short, AG AG is conflating the open-ended authorization question in Hamdi with the different question here, which is whether the 2001 AUMF actually repealed or amended a prior statute.
2.6.2006 1:30pm
Michael B (mail):
Freder Frederson, wrong again, e.g., upthread here and here.
2.6.2006 3:48pm
Mary Katherine Day-Petrano (mail):
Bruce -- "But interestingly, he doesn't list Arabic in the top 20. Why? Because, while it is uniform as written (esp. given its integral place in Islam), its many dialects are often not mutually understandable.

In other words, he treats spoken Arabic as multiple languages, given how different its many spoken dialects are to each other. While this is just the opinion of one linguist, it is also symptomatic of the problem of untrained voice recognition of spoken Arabic words."

Arabic is very interesting. I can remember when I was an undergrad many years ago, sitting in the latte-baklava coffe shop on campus. Several Arabic speakers in a number of my international business classes were sitting at a table next to me having a rather uncomplimentary conversation about Americans. They didn't know I was taking Arabic and could understand much of what they said. It took me awhile to get that far, because while it was much easier to read the written modern standard Arablic, following conversations between Saudis, Moroccans, Lebanese, Jordanians, Iraqis, Palestinians, and Egyptians, all of whom leave off different little wor endings in the spoken dialects was more difficult. As they left their table, I annonced in Arabic that one of them had forgotten his pen. I can still see the shcked looks when they realized an American could understand their Arabic.

On another note, it is very interesting how some words sound almost the same in several very different languages although spelled much differently (what springs to mind at the moment is the word "sugar" in Arabic, Spanish, and Russian), and that would have a huge impact on developing the voice-recogition to the point of 0-error rate. And, of course, sometimes words that sound alike across languages may mean entirely different things. Another difficulty.

I have a sincere question for you -- is there a security flaw in the voice-recognition involving encryption per interest of the NSA? Just curious.
2.6.2006 6:46pm
Mary Katherine Day-Petrano (mail):
Bruce -- voice-recognition is a dual technology, No? (military and commercial use). So, I am windering why voice-recognition is singled out as the one technology ALL federal web sites are not making accessible per Rehab Act Sec. 508. There is a unified front of opposition across federal agency, federal courts, and the States to making this particular technology accessible. 1 in 166 people born in America have autism, = appx. 1.5 milliona Americans with autism. Majority use voice-recognition technology. (An unknown number of learning disabled, paraplegics/quadraplegics, &others). NSA is big on not wanting people it wants to spy on to have fool proof encryption, but DOES want fool proof encryption for its (and certain other fed agencies' own secured data). Voice-recognition works by converting the sounds to binary/digital, which affects encryption. My question is, does the commercial use of voice-recognition pose a security flaw to NSA's spying efforts such that its accessibility for the disabled is being across-the-board denied?
2.6.2006 7:10pm