The Volokh Conspiracy

President Kollar-Kotelly?:
The Wall Street Journal has a very puzzling op-ed today criticizing the Chief Judge of the FISA Court, Judge Colleen Kollar-Kotelly, for not permitting DOJ to include evidence obtained from the NSA domestic surveillance program in applications for FISA warrants. The Journal's editors are apparently outraged by a judge taking on this role, and ask "Who elected Ms. Kollar-Kotelly?"
[W]hy is an unelected judge such as Ms. Kollar-Kotelly making these decisions? Under the Constitution, those calls ought to be made by the President, who swears to defend the U.S. and can be held accountable by the voters if he fails. Under the current FISA court process, Judge Kollar-Kotelly answers essentially to no one.
  I don't understand. Judge Kollar-Kotelly "answers essentially" to the Foreign Intelligence Court of Review, the appellate court that has statutory authority to review denials of FISA warrant applications. If DOJ didn't like Kollar-Kotelly's interpretation of her legal obligation under FISA, then presumably the proper course of action under the law was to invite Kollar-Kotelly to deny an application and then to seek review in the Foreign Intelligence Court of Review — and, if necessary, in the United States Supreme Court. That's the process designed by the "elected" Congress that enacted FISA, at least.
J. Slaker (www):
This certainly does seem like an odd complaint to make. Then again, it seems to be rather fashionable to bash the authority of the judiciary these days.

Wasn't Kollar-Kotelly the judge that presided over the latter part of the Microsoft antitrust trial?
2.10.2006 10:21am
Public_Defender:
There may be thoughtful arguments for Bush's warrantless wiretapping, but they are not in this editorial. The accountability argument is just plain stupid.

As professor Kerr pointed out, Bush can appeal the judge's decisions, so she's accountable to a higher court (picked largely by Republicans).

But saying Bush (who can't run for reelection) "can be held accountable by the voters if he fails" is just plain false.

Didn't the Wall Street Journal Op-Ed page used to be a place to find strident but thoughtful conservative arguments?
2.10.2006 10:26am
J..:
Wasn't Kollar-Kotelly the judge that presided over the latter part of the Microsoft antitrust trial?


Yes. She also handeled the Redskins Trademark litigation, among other cases. Disclosure: While I was in law school, I interned for her. Great person, smart judge. I suppose that is a cliche.

Anyway, the Journal's editorial page appears to have grown in its vitriol recently. I used to like reading them. I've mainly stopped. That said, I don't think I read many editorials at all anymore.
2.10.2006 10:28am
WB:
Op-eds like this are frustrating to me.

I tend to think of the NYTimes as concerned only with liberal social policy ignorant of the role that judges actually play in the government.

This sort of thing shows that the WSJ suffers from the same flaw, but with different politics.
2.10.2006 10:31am
ron (mail):
Yes, WSJ seems confused. I have a problem with the compromise reached between the CJ and the DOJ, for the exact reason (a) it prevented a constitutional challenge and (b) was a sort of re-writing (re-legislating, not interpreting) of FISA inappropriate for the CJ to do. WSJ seems to be alluding to the latter, but reaching a confused conclusion: that it would be legal for the tainted evidence to be used. Actually, it appears it would have had the opposite result: a denial of all warrants tainted by warrantless searches--and likely an appeal. I personally think that is what the FISC/CJ should have done and perhaps, then, we would have avoided this mess. Does this seem plausible?
2.10.2006 10:33am
anonymous coward:
J.: The WSJ editorial page has grown in its vitriol? You mean since the rabid Clinton years, or more recently? (The WSJ during the Clinton years was awesome, like a daily dose of Ed Wood or Mystery Science Theater.)
2.10.2006 10:43am
Just an Observer:
There are some nuanced issues to think about in the matter of the FISC judge's actions. Some of them have been explored by Hugh Hewitt and other law professors, as I posted here.

Prof. Kerr is correct in pointing out that a straightforward solution of the legal issues would be to present the issues in a case for the judge to review. (I point out that the administration continues to avoid doing so.)

Prof. Hewitt, who generally seems sympathetic to the unwarranted surveillance, agrees on that point. He says on his blog: "While DOJ may have rightly feared angering the Chief Judge, the Department's acquiesence undermines its arguments concerning the NSA program that the president has the authority to conduct the program by hinting at a reluctance to test that authority via an appeal of a denied FISA application that rested on intelligence obtained by warrantless surveillance."

It is the Bush administration that is afraid to test the merits of the question in court. If Judge Kollar-Kotelly made a well-intentioned error, I think, it was in being a bit too ready to accommodate the administration's tactic of avoiding such court review.

The WSJ editorial writer apparently read Hewitt's blog, and jumped to the off-the-wall position that judges should have no role at all in matters before their courts. Bizarre.
2.10.2006 10:56am
byomtov (mail):
The WSJ editorial page would be comic if it weren't so widely read. Instead it's tragic.
2.10.2006 10:59am
Justin (mail):
Activist Judging = Decisions I don't like. Pass it on.
2.10.2006 11:00am
Kazinski:
The Justice Department and Kollar-Kotelly reached a secret agreement that cases based on the NSA could not use evidence obtained from the surveilence to get a warrant. First of all this secret agreement required an unethical steering of cases to a specific Judge. And this secret agreement was not in an opinion or a ruling or anywhere it could be appealed. Either the program was legal and the evidence it develops is valid, or it is illegal and Congress needs to make it legal. I don't see any grey area there. I think it is legal, but if it was illegal, I can't see how making a backdoor deal to try to sanitize the warrant reflect well on either party.

Erwin Chemerinsky on Hugh Hewitt:

Well, I think it's very troubling. What they've basically done is act instead of the legislature to create a whole new set of rules. And while I think they were acting out of noble motives, I think what it points to is we need the legislature to be doing this, not judges on their own doing this.


When Hewitt, John Eastman and Chemerinsky all agree on a topic, even if the reasons are different, then there has to be some valid concerns there.
2.10.2006 11:05am
Medis:
As an aside, I will note again that I find it highly amusing that certain parties seem to regularly drop the words "the Constitution of" from the President's Oath of Office.

Anyway, it seems to be that "judicial power" obviously includes adopting evidentiary rules and procedures. So, I think that when the WSJ uses the phrase "under the Constitution", they must not mean the Constitution of the United States.
2.10.2006 11:17am
burnspbesq (mail):
@Kazinsky: I agree that a consensus among those three is unlikely to occur often, and that the existence of such a consensus should certainly cause one to take seriously the argument that what Judge Kollar-Kotelly did was questionable.

Reading further, however, one cannot help but be appalled by Eastman's position on what is the appropriate balance to be struck between what he supposes to be the President's Article II authority and the Fourth Amendment. Eastman has apparently drunk deeply of the toxic Yoo Kool-Aid, and suffered irreparable brain damage as a result.
2.10.2006 11:23am
The Original TS (mail):
I'm fairly conservative but stupidity like this makes me want to join PETA just to give myself some philosophical plausible deniability.

People who have no clue as to how the court system works and who don't understand the separation of powers probably should not be writing editorials on the Judiciary and the Constitution. The problem is that now millions of people who rely on the WSJ for financial information and analysis will have this stupid political meme stuck in their heads.

When babbling lunatics spout silliniess, we can freely ignore them. But when otherwise reputable and trusted opinion makers do so, it's incumbent on the rational to apeak up. I hope Orin will write an Op-Ed for the WSJ or at least a Letter to the Editor to set the record straight on the concept of appellate review and the role of the courts v. the role of the executive.
2.10.2006 11:27am
Bob Bobstein (mail):
This was an instant classic of WSJ editorial shamelessness in defense of whatever the Republican Party wants to do at the moment. It's only become more absurd with time. In early 2001, they argued that former Treasury Secretary Robert Rubin was urging the government to pay down the debt, rather than pass the Bush tax cuts, because he was in bed with "very large [foreign] banks." When it suits them at a given moment, there's no lie too nativist, populist, or just plain abusurd to be printed.

Trying to respond to WSJ arguments with facts and legal arguments is an exercise in futility. That's not the game they're playing.
2.10.2006 11:31am
Medis:
Incidentally, I think the last bit of the op/ed indicates what this is really all about. I think that the WSJ is betting that if Specter gets his way and the courts address the legality of this program, the program will not fare well.

Accordingly, this is a little attempt at inoculation: they are introducing this little bit of court-bashing now in the hope that we will tolerate a lot more of it when they end up needing to inject us with a full dose.
2.10.2006 11:36am
Jack John (mail):

Anyway, it seems to be that "judicial power" obviously includes adopting evidentiary rules and procedures.



Not to beat a dead horse, but you might do well to look at Klein. Congress shares that power to craft rules of evidence and procedure, but even Congress lacks such power where the power involved is exclusively executive, e.g., the pardon power. Congress tried to do just that in Klein, by reversing the evidentiary value of a presidential pardon, and got rejected, hard. I hope this reference to Klein is not perceived as a nasty attack that draws the ire of Orin Kerr.
2.10.2006 11:36am
Jack John (mail):

As an aside, I will note again that I find it highly amusing that certain parties seem to regularly drop the words "the Constitution of" from the President's Oath of Office.



I think it funny that Article II is not in Medis' Constitution, but the words "legislative history" and "congressional intent" are. I hope this is not perceived as a nasty attack that draws the ire of Orin Kerr.
2.10.2006 11:39am
llamasex (mail) (www):
Didn't the Wall Street Journal Op-Ed page used to be a place to find strident but thoughtful conservative arguments?


As long as I can remember the WSJ Op-Ed page was always a horrid black mark on an amazing paper.

In fact I've always seen Opinion Journal and more recently the failed TV show as weaking the strong brand identity the Journal has/had.
2.10.2006 11:39am
John Lederer (mail):
I disagree, and I think that you all are using a slightly different defintion of accountable than is common.

Federal judges are "accountable" to the Senate (which can impeach them) and to a much lesser degree to Congress (which can raise, but not lower their salary, or limit their jurisdiction).

The fact that an appellate court can reverse does not make the trial judge "accountable" to it. It means that an error can be fixed. To use synonyms, the district judge is not "liable", "responsible", or "answerable to" the reviewing court.

Having once, long ago, been law clerk for a judge asked to resolve the problem of a once fine district judge who became mentally disturned after the death of his wife, and whom not the Court of Appeals in his circuit nor the Suprem Court Justice whose circuit it was, nor the Chief Justice could control, the problem is very real -- since impeachment is long, drawn out, and difficult.

For some time I have been uncomfortable about the FISA court. Warrants are, I suppose, an exception to the "case or controversy" requirment, but the FISA court has seemed to moved well into an area that not only lacks parties, but which has the flavor of advisory opinions, and a whiff of a court acting in an executive manner. That is not good, in my opinion.

I appreciate that when one looks for a disinterested referee, courts automatically come to mind, but the FISA setup, I think, is one that exacerbates the problems of using judges out of the normal role.
2.10.2006 11:50am
Kovarsky (mail):
Kazinski,

The agreement did not involve "steering" cases to the judge secretly. It was a secret agreement for tainted warrants to be marked when they came before any FISA court(a secrecy that was desired by all parties, including the president - and i don't see how it could be a viable not-secret agreement without outing the NSA program itself).

by the way, this is the section of klein that "supports" the proposition that the president has inherent, unenumerated power that congress cannot override. you will notice that the pardon power is in fact granted in Article II, Section 2, and that the word inherent does not appear in the passage (or the opinion at all). You can all make up your minds whether Klein says that the president possesses unenumerated inherent power that trumps congressional legislation:


It is true that the section of the act of Congress which purported to authorize the proclamation of pardon and amnesty by the President was repealed on the 21st of January, 1867; but this was after the close of the war, when the act had ceased to be important as an expression of the legislative disposition to carry into effect the clemency of the Executive, and after the decision of this court that the President's power of pardon ‘is not subject to legislation;’ that ‘Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.'FN18 It is not important, therefore, to refer to this repealing act further than to say that it is impossible to believe, while the repealed provision was in full force, and the faith of the legislature *142 as well as the Executive was engaged to the restoration of the rights of property promised by the latter, that the proceeds of property of persons pardoned, which had been paid into the treasury, were to be withheld from them. The repeal of the section in no respect changes the national obligation, for it does not alter at all the operation of the pardon, or reduce in any degree the obligations of Congress under the Constitution to give full effect to it, if necessary, by legislation.
2.10.2006 11:54am
Kazinski:
burnspbesq:
I think Eastman has drunk deeply of the SCOTUS (and FISA Court of Review) Kool-aid. He is citing cases that buttress his opinion. Where is a case that contradicts him? I think it is interesting, but hardly definitive, that Eastman and Hewitt are ready to cite cases, but Chemerinsky chooses not to reference any opinions that might help him make his arguement.

There is evidence presented in court (and accepted) hundreds of times a day in this country based on warrantless searches. As long as the search is reasonable then their is no taint to the evidence.
2.10.2006 12:00pm
Kovarsky (mail):
Kazinski,

I have to admit that I am getting very troubled by the increasingly frequent selective editing of texts here. Your post is extraordinarily misleading, as you imply Chemerinsky agrees with the other two, but he says:

I very much disagree with John. I think he's confusing here what the president has the power to do as commander-in-chief, and what may be introduced as evidence into a court. Just because the president has the power to do it doesn't mean it's lawfully obtained evidence, and can be used against a criminal defendant. And what these judges were saying is look, if it's not gained in compliance with the 4th Amendment, and it's not gained in compliance with the FISA statute, it has to be excluded.

And I'm not going to stop just by pointing out that the excerpt from Chemerinsky was completely misleading. I also happen to agree with the substance of Chemerinsky's reasoning.

His point is that well, the notion that the executive has authority to conduct a program is different from the proposition that anything from that program could be introduced in court. This is hornbook 4th amendment law. The exclusionary rule is REMEDIAL device, and it doesn't check what officers can do, it checks what they can bring into court.

Chemerinsky explains that he thinks this is a shame, because the evidence can be quite useful, but courts dont consider evidence taken in violation of the 4th amendment. District courts make that determination all the time, regularly in light of higher court authority that the particular practice in question - the one that captured the evidence in the first place - is under the authority of the entity doing the capturing.
2.10.2006 12:05pm
Just an Observer:
John Lederer,

I don't think FISC judges are "out of the normal role" when they are approving/disapproving warrants. That's what judges and magistrates are supposed to do.

What was remarkable about this situation was something occurring in ex parte meetings and contacts between the judge and DOJ officials -- none of whom had very much faith that the warrantless surveillance could withstand scrutiny in an actual case. The ex parte "compromise" described by the Washington Post article was apparently designed to avoid such judicial review.

When Judge Robertson resigned from his FISC assignment in December, an associate was quoted by the Post as saying some judges complained that FISC was a "Potemkin court." This procedure apparently was part of the source of the complaint.

What I find stunning about the WSJ editorial is that instead of criticizing the distortion of normal judicial review, the editorialist thinks there should be no judicial review at all!
2.10.2006 12:08pm
Jack John (mail):

In turn, [DOJ] may be using information from these other programs to establish their probable cause under "this program"--and that, as we now know, the FISC was not allowing.


Ok, I agree with Medis on this point. But the ad hoc FISC is using sounds an awful lot like "Fruit of the Poisonous Tree" doctrine, which applies in the Fourth Amendment context. This is troubling because a warrant is not constitutionally necessary here. "This program" does not violate the Fourth Amendment: it fits within an exception to the Fourth Amendment ("hot pursuit"). See General Hayden's remarks on Fox News Sunday on Superbowl Sunday.


The question, then, is can Congress impose a warrant requirement on the President when the Fourth Amendment does not? This is a problem for those making Medis' brand of argument:

The Fourth Amendment does not have a "necessary and proper" clause that grants Congress power. Indeed, the Bill of Rights is a check on power of Congress, not a grant of power. The First Amendment makes this clear: "Congress shall make no law ..."

Traditionally, state legislatures have been free to grant greater protections than the Bill of Rights, especially with regard to the Fourth Amendment. If such powers have been reserved to the States, then Congress does not have them. See the Tenth Amendment and the Ninth Amendment.

So: What is the authority that Congress relies on to impose a warrant procedure on the President when he has not violated the Fourth Amendment? And if the Foruth Amendment does not apply, by what authority is the Court applying Fourth Amendment evidentiary doctrine? This seems clearly erroneous and highly improper.

Note: This is not a nasty attack meant to draw the ire of Orin Kerr.
2.10.2006 12:10pm
Jack John (mail):

Just because the president has the power to do it doesn't mean it's lawfully obtained evidence, and can be used against a criminal defendant. And what these judges were saying is look, if it's not gained in compliance with the 4th Amendment, and it's not gained in compliance with the FISA statute, it has to be excluded.



1. See my last post.
2. Please read Klein. (That was not a nasty attack meant to draw the ire of Orin Kerr.) In it, it is clear that if the constitutional power at-issue is exclusively Executive, Congress and the Courts cannot set evidentiary rules that limit its exercise. In Klein, the Executive power at-issue was the pardon power.
2.10.2006 12:12pm
Kovarsky (mail):
The hot pursuit requirement has been doctrinally applied only to fleeing suspects, giving authorities the right to enter private premises without a warrant. That is not debatable.

It may "fit" within that requirement, but it would require a dramatic doctrinal extension, because as we all know and have been through a million times, no federal court has ever held warrantless taps to be admissible under the 4th amendment.
2.10.2006 12:14pm
Jack John (mail):

The hot pursuit requirement has been doctrinally applied only to fleeing suspects, giving authorities the right to enter private premises without a warrant. That is not debatable.


It isn't debatable, but not for the reasons you suggest: the hot pursuit/evanescent evidence exception applies when there is a fleeing suspect that may not be caught again or a suspect who has evidence that may be destroyed soon. In other words, the purpose of the exception is to prevent evidence from getting away, whether it be an obviously guilty person or drugs about to be flushed down the toilet that will be used as proof at trial. Since the doctrine sees no difference between physical invasions of the home and searches of private data, one can certainly be in hot pursuit of foreign intel that will be gone in hours because the target is on the move and will have dumped his $5 cell phone in the Euphrates.
2.10.2006 12:20pm
Kazinski:
Kovarsky:
There is nothing selective about my choice of quotes, and I didn't edit the quote, it was a whole paragraph. I said:

When Hewitt, John Eastman and Chemerinsky all agree on a topic, even if the reasons are different, then there has to be some valid concerns there.

My point was simply this: all three agree that it was wrong for Lambert and Kollar-Kotelley to reach a secret agreement on the NSA related cases with the Justice department. They disagree on the reasoning and I noted that. The disagreement is based mostly on the fact that 2 of them believe the NSA program was legal and there was no taint on the product of that surveilence, and Chemerinsky's belief that is was tainted and violates the 4th amendment.
2.10.2006 12:28pm
eddie (mail):
Kazinski and Cherminsky both have it correct. Let's not argue two separate point simultaneously.

Does the President have the authority to issue these types of searches?

I don't think so, based on the fact that the Congress specifically chose to regulate the particular action that the President is claiming to have "inherent" powers to execute.

But let's say that it is not "illegal" for the President to authorize these as an executive decision (sort of like a cop doing the same).

Does that mean that the evidence obtained from such warrantless operation can be used against an individual in any criminal proceeding?

Please cite some relevant precedent that addresses this.
2.10.2006 12:32pm
Kovarsky (mail):
I've read klein, and I have from the first time you posted it. You're flat out misrepresenting what it says, and I do believe that every other person who's read it at your behest has agreed with that assertion. I didn't feel it necesary to repeat what 8 other people had pretty conclusively established. Klein reverses the evidentiary ruling on the grounds that it effectively nullified the president's enumerated pardon power.

If you think congressional oversight of signals intelligence "effectively nullifies" the president's authority of commander in chief - which is the level of generality at which you have to state the power in order to have it function analogously to the pardon power in klein - then, as every other person that has taken their time with you on this tired issue has explained, we have nothing to talk about. you are not capable of being convinced.

And I'm not really sure what you mean by the idea that "the doctrine" (what doctrine) doesn't distinguish between physical and electronic searches? I quite plainly does. That's why there are all sorts of warrant exceptions for physical encroachments, but the Court has quite emphatically said that a wiretap requires a warrant. Now you might THINK that there shouldn't be a difference, and if you put the case to the court that the purpose of the hot pursuit requiremetn should apply here, you might get some votes (you might even win!).

But your position, that the president had all authority to evade judicial and congressional checks on this issue, requires that you think the issue to be crystal clear. In light of the very clear rule that all tapping requires a warrant requirement, if you continue to make the claim that it is "clear" that you can tap without a warrant well then we are at a similar impasse.
2.10.2006 12:34pm
Kovarsky (mail):
Eddie,

Every 4th amendment case the supreme court has ever adjudicated will explain the exclusionary rule to be a remedial measure. It is not a controversial point.
2.10.2006 12:35pm
Jack John (mail):

I don't think so, based on the fact that the Congress specifically chose to regulate the particular action that the President is claiming to have "inherent" powers to execute.



You're missing the main point here: what is the authority upon which Congress is mandating that the President have a warrant?
2.10.2006 12:38pm
Jack John (mail):
Kovarksy,

Your last post neither responds substantively to any of the points made in my last three posts, nor does it advance your case. What it does is attempt to insult me and demonstrate how incivil you are. I would suggest that you refrain from such personal attacks.
2.10.2006 12:40pm
Jack John (mail):
"This program" does not involve the tapping of any wires.
2.10.2006 12:42pm
Kovarsky (mail):
Kazinski,

At this point it's not quite clear what you are saying. Chemerinsky was making the point that this illustratese how the executive needed to go to the legislature in the first place, quite contrary to what you seemed to imply in your post.

The point is that there should be no need for a "secret agreemeent" because the government should have been flagging the "tainted" evidence so FISC could adjudicate it and the appellate courts could review its admission. But everybody knew the administration wasn't doing that (that was the concession secured in the compromise, for goodness sakes!). Stuck between a rock and a hard place, because the administration was not identifying the sources of its evidence voluntarily, so that it could be adjudicated in court (in flagrant violation of the law), they did the best they could by reaching an agreement with baker.

It's surely a "shame" that it had to go down that way, but the Journal's implication that somehow the blame is to be laid at FISC's door betrays, as most people on the thread recognize, a pretty pathetic understanding of legal issues.
2.10.2006 12:43pm
Jack John (mail):

If you think congressional oversight of signals intelligence "effectively nullifies" the president's authority of commander in chief - which is the level of generality at which



If you go back and respond to one of my latest posts, I explicitly ask what authority Congress is relying on. Either Congress has authority, or it doesn't. You're making the case it has authority, please cite the authority it has.
2.10.2006 12:43pm
Kovarsky (mail):
OK, JJ. Gave you another chance. Done for the day.
2.10.2006 12:48pm
Jack John (mail):

Kovarksy: And I'm not really sure what you mean by the idea that "the doctrine" (what doctrine) doesn't distinguish between physical and electronic searches? I quite plainly does. That's why there are all sorts of warrant exceptions for physical encroachments, but the Court has quite emphatically said that a wiretap requires a warrant. Now you might THINK that there shouldn't be a difference, and if you put the case to the court that the purpose of the hot pursuit requiremetn should apply here, you might get some votes (you might even win!).



"[F]or Fourth Amendment analysis purposes, courts have made no distinction between electronic surveillances and physical searches."

--- STATEMENT OF JAMIE S. GORELICK, DEPUTY ATTORNEY GENERAL, BEFORE THE PERMANENT SELECT COMMITTEE ON INTELLIGENCE, U.S. HOUSE OF REPRESENTATIVES, CONCERNING WARRANTLESS PHYSICAL SEARCHES CONDUCTED IN THE U. S. FOR FOREIGN INTELLIGENCE, PRESENTED ON JULY 14, 1994, available at http://thinkprogress.org/gorelick-testimony/
2.10.2006 12:51pm
Jack John (mail):
At this point, I would note that not only has Kovarsky made contentions that are false, he has attempted to defend demonstrably false contentions by insulting others. There is no substantive value to his last few posts, none whatsoever. They offer no facts for others to rely upon, no arguments that withstand the test of reason, and serve no purpose other than to draw debate away from rational consideration of alternative positions and instead divert them into the realm of nasty personal attacks. The tone of his posts alone should be enough to deserve a warning.
2.10.2006 12:55pm
KMAJ (mail):
While I find the WSJ editorial lacking persuasion, those seeking to extend criticism beyond this specific one to a blanket condemnation of WSJ editorials are revealing political leanings and not relevant discussion. If blanket condemnations were relevant, why not extend it to the NY Times, Washington Post or my hometown paper, the St. Louis Post-Dispatch, all have a propensity for left leaning screeds that exceeds the right leaning screeds of the WSJ.

The specific WSJ editorial loses me when it decries Kollar-Kotelly for applying FISA evidentiary standards. If there is something to be addressed it would be the evidentiary standards that currently exist. If, as the WSJ editorial puts forth, these judges are really resurrecting 'the Gorelick Wall', the DoJ certainly has precedent to appeal to the FISC Court of Review or the President can approach Congress to amend that section of the law.

But WSJ editorial is not the only part of this deserving criticism, the Washington Post article's attempt to play politics and sway public opinion with a slanted presentation is equally, if not more disturbing. With an editorial, you expect opinion, with a news story, you don't. Washington Post clearly used this story to try to cast a negative light on the NSA surveillance program.

The old media tends to be the source of many discussions, with many almost worshipping or holding them up as gospel. If you are bombarded with the same slant on news day after day, you slowly become indoctrinated, and find outrage when another publication presents something that does not follow what you have been told repeatedly. This WSJ editorial is certainly not one of their finest efforts, but when put in the perspective of editorials from all newspapers, in general, it probably ranks as average or par for the course.
2.10.2006 1:01pm
Kazinski:
Kovarsky:
What do you mean it is not clear what I said? I said that Cherminsky found it "very troubling", (that means wrong) that Kollar-Kotelly reached an undisclosed secret under the table (that means they didn't tell anybody) agreement with DOJ. And I also mentioned that Hugh Hewitt and John Eastman agreed with him. And Jonathan Adler too for that matter.
2.10.2006 1:04pm
Justin (mail):
Kazinski, you are completely conflating the problem of "discretionary deference" that Kollar-Kotelly is receiving from the left in allowing the program to continue, and the absurd argument made by the WSJ and HH that the deference not only was proper, but was absolute and should have gone significantly further. It's like saying that a liberterian and a communist agree that the current welfare system in America is flawed, and thus the liberterian's criticism should be strong evidence of the validity of the communist's criticism.
2.10.2006 1:12pm
Kovarsky (mail):
Kazinski,

The implication that you gave to Chemerinsky finding it "troubling" was somehow that the judges were at all to blame for making the deal. Yes, he found it "troubling," but he plainly acknowledged that they were forced into that position by the administration, because the alternative would be to admit evidence that was tainted - and have that evidence admitted in a manner that was also unreviewable.
2.10.2006 1:20pm
Tom Holsinger (mail):
Here is an exchange on this point between Hugh Hewitt and law professor Jonathan Adler:
"HH: Are you also alarmed by what appears to be the manipulation of the docket, so that a class of cases only comes to Kollar-Kotelly, and that she avoided review by the Foreign Intelligence Surveillance Court appeals court on this matter?

JA: Oh, certainly. And unfortunately, there is a history of at least the appearance of the manipulation of the docket of cases in federal district court in the District of Columbia. And given that history, the appearance is very bad. I mean, I don't like to make accusations about what judges' intentions are and the like, but that's one of the reasons why we have rules about how cases go through the process, and which judges they come before. And anytime a judge manipulates that, it undermines our faith that judges are neutrally applying the law, and faithfully executing their obligation. So that's another ground on which this is troubling to me, because it raises the possibility of accusations that we don't want judges to be subject to.

HH: How about the paragraph that reads, "Kollar-Kotelly complained to then-Attorney General John Ashcroft, and her concerns led to a temporary suspension of the program. The judge required that high level Justice officials certify the information was complete or face possible perjury charges."

JA: Well, I have a lot of problems with that sort of ex parte communication between a judge...

HH: Exactly.

JA: ...and an executive department official outside the context of a given case. Now if in a given case there's reason to worry about the completeness of certain information, that's one thing. But kind of this...what appears to be kind of ad hoc communication and decision making is to me, troubling. And now, some people have suggested that this sort of thing has happened for a long time in the FISA court. And if that's true, then I think we've had a problem for a long time. I mean, we don't want judges making these sorts of calls in these sorts of contexts."

Judge Kollar-Kotelly's conduct as a FISA presiding judge has created major impartiality and appearance of impropriety issues.

Point of information:

These matters involve intelligence issues - it's all about electronic intelligence. There are applicable intellligence practices of "dirtying", "misdirection", etc., which are most definitely pertinent to the actions of the Bush administration vs. a vs. the FISA court. Those familiar with such practices recognize them in operation.

Also involved is a concept called "information war" which applies in particular to Attorney General Gonzales' testimony to the Judiciary Committee. Those who find his statements apparently contradictory to some interpretations of FISA have not considered the many different and often overlapping purposes his testimony served. There was a reason he was not under oath.

Welcome to the "black world" and spookdom.
2.10.2006 1:21pm
Kazinski:
Jack John:
I don't think you are being fair trying to construe Kovarsky's posts as personal attacks, or that he is trying to intentionaly divert the discussion. I think a much charitible interpretation is that he is struggling to understand the issues and the points being made. It isn't that he disagrees, but it is obvious he is having trouble following the arguement.
2.10.2006 1:21pm
Duncan Frissell (mail):

The Journal's editors are apparently outraged by a judge taking on this role, and ask "Who elected Ms. Kollar-Kotelly?

Here's the easy explanation. The WSJ opposes the existence of FISA and thus any actions by a FISA judge. That's what this phrase means: "the folly of putting judges in control of national security decisions." There's nothing unusual about that position. Lots of people share it.

In fact civil libertarians (particularly cyber-libertarians) opposed it before anyone in the general public had heard of FISA because they were opposed to secret courts. Remember when FISA was secret? Remember when NSA was secret? [Created at midnight on election night 1952 by Truman's executive order.]

The WSJ and George wouldn't mind if there was no FISA. They don't think national security wiretaps need a court order.

Just like FDR didn't think he needed a warrant to have Western Union keep copies of all overseas cables for government examination at
this building in lower Manhattan a few blocks north of Ground Zero.
2.10.2006 1:30pm
Houston Lawyer:
There seems to be a general consensus here that nothing is good or valid unless a judge has passed upon it in some form or function. The main point of the WSJ articles, of which this latest editorial is a part, is that gathering foreign intelligence is an executive, not a judicial function.

I am agnostic about whether the President had the legal authority to put this program into place. It is possible that he has exceeded his Constitutional authority. But then again, since the Supreme Court seems fit to re-write the constitution from time to time, I'm not going to get overly upset if the President stretches the limits of his authority.

I believe we need a different set of evidentiary rules for national security related cases than the ones developed for domestic criminal law enforcement. In these cases, the costs of the exclusionary rule need to be weighed against the benefits. The exclusionary rule is judge-made and can be re-written like any other rule.
2.10.2006 1:32pm
Just an Observer:
KMAJ,

Of course, you spin this development as an example of bias on the part of the Washington Post. And of course, you do not dispute the facts reported there, you merely attack the paper that reported them. You really could be replaced by a recording when you do this. Perhaps in the interest of brevity we can develop a shorthand symbol KMAJAHA to mean, "Insert ad hominem attack by KAMJ here."

On a related note, I clearly recall you saying in an earlier exchange that you personally favor resolution of the legal merits of the NSA controversy in the courts. All week I have been awaiting your endorsement of Sen. Specter's plea to AG Gonzales that the government submit the question to the courts for such determination. Have I missed the post where you made such an endorsement?
2.10.2006 1:36pm
KMAJ (mail):
Reading the back and forth in this string, I notice an absence of recognition of the unique overlap that the WoT and terrorism presnt between intelligence gathering and criminal prosecution. This overlap goes to the foundation of civillian criminal court versus military tribunal argument. If intelligence gathering provides solid evidence of criminal conduct (terrorism is a crime), are we not shooting ourselves in the foot if we extend civil liberty protection to an enemy/terrorist ? I do not pretend to have the answer, but it seems to me that this is a very delicate question where a very careful balance needs to be created, where going to far in either direction causes more harm than good.
2.10.2006 1:48pm
Tom Holsinger (mail):
KMAJ,

California has had a policy for scores of years of stopping traffic coming into the state periodically to check for pests like the Medfly which would harm California's agriculture. The Highway Patrolmen doing the stops occasionally arrest people at such stops for obvious crimes such as carrying open containers of alcoholic beverage. The stop is for a non-criminal purpose, but they don't have to ignore evidence of crimes. They just can't use the stop as an excuse to look inside vehicles' trunks.
2.10.2006 2:04pm
Kazinski:
Just an Observer:
How do you suppose Gonzales would go about submitting the question to the courts to resolve? I wasn't aware that the courts had a legal advisory service.

The only mechanism I can think of for the DOJ to get an opinion on the legality of the NSA surveilence is to file conspiricy to violate civil rights charges against Rockefeller, Roberts, Harman, Hoekstra, Gonzales, Ashcroft and Kollar-Kotelly, et al. And of course Cheney and Bush would be unindicted co-conspiritors. Somehow I don't think that is going to happen.
2.10.2006 2:08pm
KMAJ (mail):
JaO,

I would love for you to post your credentials on journalistic expertise. Do you deny the WaPo article casts a negative light on the NSA surveillance ? I have stated before, simply posting some facts does not go to the core of journalistic integrity. Any news story can claim factual presentations, that does not mean they have presented ALL the facts. Any news story is subject to slanted presentation in the facts they choose to present, the choice of words within the story to shape perception and the position these facts, quotes, etc. are presented in a story. The WaPo story clearly framed its presentation that created the perception of the NSA surveillance as a bogeyman. This 'ad hominem' charge is a typical non sequitur when rebuttal is weak. Defending the 'old media' is not arguing from a position of strength but from a position of maintaining the status quo and fighting change.

The 'old media' has not adjusted to the shift in societal perceptions and attitudes, neither has the legal profession. Both, in general, share an elitist view that they know what is best for the people and forget that the Constitution and federal government is of, by and for the people, not just lawyers or journalists. Both of those segments of society wield great power and influence, they do not always wield it wisely and responsibly or in the best interests of the people. Instead, these unelected segments sometimes abuse their power and influence by seeking to protect their own interest at the expense of the people.
2.10.2006 2:11pm
Bob Bobstein (mail):
KMAJ: "The 'old media' has not adjusted to the shift in societal perceptions and attitudes, neither has the legal profession. Both, in general, share an elitist view that they know what is best for the people and forget that the Constitution and federal government is of, by and for the people, not just lawyers or journalists."

Y'know, I'd rather the courts take a look at this issue, rather than leaving it to the commentors at LGF and DemocraticUnderground. Or even Volokh.com.

I could be misunderstanding you, but if you are arguing that the Internet makes judicial review obsolete, I'm unpersuaded.

See Tushnet, Taking the Constitution Away from the Courts, for some robust theorizing that might take your argument further.
2.10.2006 2:17pm
Just an Observer:
KMAJ: How do you suppose Gonzales would go about submitting the question to the courts to resolve?

I don't know specifically what Specter had in mind, but the contours of such a test case are readily apparent from the facts in the Post story. The government could have applied for a warrant for a person previously surveilled without a warrant, justifying the warrant with information gleaned from such surveillance.

The FISC court then would have the question of the legality of the warrantless surveillance before it, and could rule on the matter. If the FISC ruling went against the government, the case would be appealed to the FISCR, whose rulings are reviewable by SCOTUS. (In that scenario, the government may even have had a built-in advantage, because FISC rulings in their favor may not be reviewable by FISCR. Even with such an advantage, DOJ did not seek vindication of its legal claims.)

At least Hugh Hewitt, who is quite sympathetic to the administration's legal claims, has the courage of his convictions. He says the government should have sought such a ruling.

Predictably, you exhibit no such courage.
2.10.2006 2:20pm
Medis:
As noted, I don't think a court adopting an evidentiary rule is problematic. At least initially, I'm also not disturbed by the Chief Judge consulting with the government "ex parte" on that issue (I may be wrong, but I think the Supreme Court solicits advice from all sorts of sources when adopting or amending Rules).

The docket control, however, does sound a little fishy. But I don't really know enough about how that is supposed to work.
2.10.2006 2:23pm
PersonFromPorlock:
Jack John:

what is the authority upon which Congress is mandating that the President have a warrant?

If the President is acting as Commander in Chief of the armed forces, then the authority is implicit in Congress' Article I Section 8 power "To make Rules for the Government and Regulation of the land and naval Forces."
2.10.2006 2:23pm
Just an Observer:
KMAJ: Do you deny the WaPo article casts a negative light on the NSA surveillance ?

I agree that the facts reported by the Post, particularly the fact that a pivotal DOJ official and the chief FISC judge doubted the legality of the surveillance, might be said to "cast a negative light" on the program.

Reporting those facts is certainly not evidence of bias on the part of the Post, but of enterprising reporting. As usual, you seek to obscure facts with ad hominem attacks. The premise is many of your posts here is that facts and legal arguments are not real, but mere artifacts of someone's bias or partisanship.

Can we agree that instead of cluttering up the blog repeatedly with such ad hominem attacks in the future, you will just use the symbol KMAJAHA?
2.10.2006 2:29pm
OrinKerr:
FYI,

I have blocked Jack John's IP address. I may unblock it if Jack John can assure me that he can post without repeated nasty attacks on other commenters, but for now that's the call I'm making.

-The Management
2.10.2006 2:45pm
Noah Klein (mail):
Orin,

I understand that this is your forum and I would not presume to tell you how to run it, but I do very humbly request that you unblock Jack John's IP address and allow him to post here. I appreciate the gesture, since most of Jack John's invective was thrown in my direction, but I think his own style of argument and lack of respect hurts his argument more than it insults another person. I feel that I am obligated to make this request, since I did not like it when Prof. Volokh ousted George Gregg whose opinions I agree with but not his methods. I hope that you will reconsider. Thank you,

Noah
2.10.2006 2:56pm
Richard Aubrey (mail):
The question is not, as is generally the case, whether George Bush is a poopyhead.
The question is whether the judges acted properly.

In addition, the supposed rejection of NSA material in authorizing a warrant seems strange. Does the Fourth Amendment come into play in the accumulation of evidence for a warrant request? In other words, can poisoned fruit be used to get a warrant?
If so, what's the problem?
2.10.2006 3:03pm
KMAJ (mail):
Bob Bobstein,

I do not make the case that the internet makes judicial review obsolete. The judiciary and journalism have an important and pivotal role to play. My point was that both the journalism and legal professions are subject to imperfections and self-interest. From a socoiological standpoint, both institutions tend to be monolithic and slow to adjust to changes in society. Personally, I think that slowness is, for the most part, a good thing, as it curtails massive leaps and foments smoother, and thus less jarring, shifts, to the consternation of those on the far right.
2.10.2006 3:04pm
Noah Klein (mail):
Richard,

I am pretty sure that preventing "posioned fruit" from being used to get a warrant was precisely what the presiding judges were attempting to prevent. The presiding judges, when learning of the program, thought it violated FISA and thus sought to ensure that all FISA warrants would not include evidence gathered in a way that violated FISA. I do not see what the great objection to this is.

Noah
2.10.2006 3:10pm
Dilan Esper (mail) (www):
One more thing about JackJohn's pardon argument. Everyone has pointed out a million times that the war power is shared unlike the pardon power. But it's worth noting that even with respect to the pardon power, he's dead wrong. Congress CAN make rules of procedure in that area.

For instance, suppose you have a petition for habeas corpus brought on the ground that the President pardoned the prisoner. Can Congress not mandate, for instance, that the Court receive a certified copy of the pardon as proof that it exists?

Klein says that Congress and the courts make rules that can't change the EFFECT of a pardon, because it is a power (unlike the war power) that is granted exclusively to the President. So, Congress couldn't make the pardon itself inadmissible in the habeas proceeding. But so long as Congress does not impinge on the effect of the pardon, Congress retains its full power to make rules of practice and procedure for Article III courts.
2.10.2006 3:18pm
KMAJ (mail):
JaO,

I find it interesting that you decry 'ad hominem', and then engage in personal demeaning attacks yourself. Could this be a lack of ethics in your strength of conviction ? No where in my postings did I make a personal attack on you. I am awaiting your presentation of journalistic credentials. It has been my experience that those who need to engage in ridicule as a tactic come from a position of weakness to lamely claim a position of higher moral authority. Your pusillanimous argumentation style, the need to demean and ridicule, provides evidence of the elitism I have alluded to. But, you are free to engage in such tactics, it's no skin off my back.
2.10.2006 3:21pm
Bob Bobstein (mail):
Thanks, KMAJ.

I agree with you on the general point that "both the journalism and legal professions are subject to imperfections and self-interest."

I think that we'd also both agree that this general idea does not necessarily tell us where to come out on any given issue-- ie, whether the warantless wiretapping program should be subject to judicial review, or whether the Post should alster its tone in the presentation of a given story. In fact, there's a possibility that we might disagree on the merits of those issues.
2.10.2006 3:22pm
Tom Holsinger (mail):
Point of information:

I have in the past made unfavorable comments about "feds", indicating that there was a characteristic unpleasant form of behavior by some federal employees. You have recently seen examples of such behavior and, later on in other venues, may do so again. But we won't see it here for a while. At least not from him.

Professor Kerr,

Thank you.
2.10.2006 3:22pm
Just an Observer:
I honestly am trying to understand the duty of a judge in such a matter. As part of that inquiry, I find it interesting to wonder if there is a difference between the duty of a judge sitting as a FISC judge and the same judge sitting in their District Court. (Please excuse the repetition, as I have posted a variant of the conundrum before. But I remain unsatisfied intellectually.)

A hypothetical: Suppose a U.S. attorney meets with the chief judge of his district and informs the judge that the President has determined that warrants will no longer be required in Title III terrorism cases, but sometimes the government may find it useful to seek warrants in matters that turn out to be related. Further, the USA "briefs the judge into the program," and confides that such warrantless wiretapping routinely goes on, and the attorney general has issued a secret opinion approving it.

1) Would it be okay for the judge and the U.S. attorney to construct procedures to ensure that when warrants are sought, the attorney general certifies that they are not based on the fruit of the warrantless wiretaps?

2) Since warrantless wiretapping is a crime under Title III, what duty -- if any -- does the judge have to see that the activities are investigated and prosecuted? Are there any conspiracy crimes that might derive from the underlying offense of wiretapping?

3) Substitute "torture, sometimes resulting in death" for warrantless wiretapping in the hypothetical. Does that change the result of the analysis?
2.10.2006 3:22pm
Medis:
I'm also interested in JaO's questions. I took a first cut at some of them elsewhere, but I'd be interested in other opinions.
2.10.2006 3:26pm
srg (mail):
Noah,

You wrote:
"I am pretty sure that preventing "posioned fruit" from being used to get a warrant was precisely what the presiding judges were attempting to prevent. The presiding judges, when learning of the program, thought it violated FISA and thus sought to ensure that all FISA warrants would not include evidence gathered in a way that violated FISA. I do not see what the great objection to this is."

Are you serious? If evidence of a terrorist plot was gathered contrary to the FISA rules, you wuld simply throw it out? Surely there has to be a middle way between this policy, which would be throwing out the baby with the bathwater, and simply allowing the government to do whatever it wants.
2.10.2006 3:27pm
Noah Klein (mail):
Srg,

I wouldn't throw it out, because I am not a FISC judge, but the presiding judge said that he and she would. They stated clearly that they thought this violated FISA and they did wish to have this "poisoned fruit" taint the warrants that the government wished to seek. This is a judicial determination far above my head. I just defended the court's authority to make such a determination and the reasons behind it. Also, this is not throwing the "baby out with the bathwater." Information is still in the government's hands and they can still use it prevent a terrorist attack. They just can't use it to get a FISA warrant.

Noah
2.10.2006 3:39pm
KMAJ (mail):
Bob Bobstein,

Thanks, and, yes, I agree, it does not tell us where to come out on an issue. When I offer opinions, they are no more than that, with no expectation or demand of agreement. The NSA issue has valid arguments on both sides, which creates a vigorous discussion. My critique of the 'old media' was not a demand that they alter their presentation style, freedom of the press is essential, the marketplace will be what ultimately influences them, if their subscription rates continue to decline, they will, at some point, have to make a decision. There are very few journalists that I would hold up as examples of objectivity, Jim Lehrer would be near the top of my list.
2.10.2006 3:39pm
Tom Holsinger (mail):
JAO,

I believe then Attorney General John Marshall wrote an opinion during the first Adams administration justifying the warrantless opening of international mail by suspected French agents. My recollection was that the justification was something like, "If we deliver it, we can also refuse to deliver it, so submission of mail to our delivery service is implied permission to read it". I might have that confused with an opinion by a later Attorney General.

The Executive branch has at almost all times, AFAIK (not all times - there was a great line by then Secretary of State Stimson during the Hoover administration that "Gentlemen do not open each other's mail"), freely inspected the mail, and then the telegrams, and then the phone calls, of suspected enemy agents in peace and war when those cross the U.S. border.

There is a total failure of agreement on dominant underlying assumptions in this discussion. A common characteristic by those on one side is outright refusal to read authoritative public record sources impeaching their assumptions.
2.10.2006 3:40pm
Just an Observer:
KMAJ: I find it interesting that you decry 'ad hominem', and then engage in personal demeaning attacks yourself. Could this be a lack of ethics in your strength of conviction ? No where in my postings did I make a personal attack on you. I am awaiting your presentation of journalistic credentials.

My journalistic credentials, if any, are irrelevant. As are yours, if any. The Post article speaks for itself, and any of us is competent to discern the difference between fact and opinion.

If you have knowledge -- actual knowledge, not just something you speculate might be "plausible" as you have done on some occasions -- of material facts about the internal workings of FISC that the Post deliberately omitted, please state those facts and their attribution.

I am not attacking you personally. Rather I am attacking your style of argument, which on this blog has exhibited a pattern of ad hominem attacks.

On some occasions your ad hominems have crossed another line, actually impugning the ethics of third parties -- the CRS legal analysts and Judge Robertson. (I am still waiting for your retraction of those sleazy and unsupported charges.) Your attack on the Post in this case approaches that line, but that is not my main point. It is sufficient in this case to note that you do not challenge the factual content of the Post article, but merely attack the Post.

Your mission on this blog seems to be to blow smoke however you can, in an effort to divert attention from factual and legal matters. I will continue to decry such tactics when I see them. Please don't take it personally.
2.10.2006 3:50pm
Noah Klein (mail):
Tom,

First, what is AFAIK?

Second, I believe that the people who think this program is incongruent with FISA have admitted many times that the practice of prior administrations was allowed both by the constitution and Congress's failure to proscribe those actions (in fact, I think Title III expressly gave the executive permission to take such actions). What many others and I have said is that once FISA was passed by Congress and signed by the president that power limited to demonstrating that such surveillance had a probable cause standard. We have said that Congress is authorized to do this by Article I Section 8. I think Medis has very clearly demonstrated that FISA is no different than the UCMJ with his espionage example. The actions of past presidents are irrelevant, because prior to FISA those actions were implicitly permitted, but after FISA those actions were expressly proscribed.

Noah
2.10.2006 3:58pm
Just an Observer:
Tom Holsinger,

I find the postal story interesting, but I am primarily interested here in the role of judges.

Noah,

AFAIK = "as far as I know"
2.10.2006 4:03pm
Kovarsky (mail):
Kazinski,

While I appreciate your charitable point about how I'm not personally attacking someone but rather that I just don't understand the issues, I find that sort of condescending remark to be lacking in precisely the civility that Jack John attributes to me. I think it's exactly that ilk of backhanded charity that ends up making people stop listening to your arguments. What separates people like Tom and KMAJ from people like you and JJ is the tendency of you two to dismiss people as "stupid" or "slow" when they do not agree with you. It's as if you are daring people to compare resumes with you, and then you proclaim some sort of "victory" when people don't fall for your childish credential-baiting. It's one of the hazards of pseudonymous posting, but it on the other hand very quickly reveals whose civility and even-handedness is a product of earnest commitment to constructive debate, and who possesses those qualities merely because they are in a real-space forum that can hold them accountable for their absence.

I think Tom, incidentally, makes a good point. I have a big problem if cases were being diverted on the docket. A big one. I am going to go back through the thread and try to figure out how many and why the cases were diverted, who would be in a position to divert them, etc.

I, however,I don't have that much of a problem with the back-room compromise that made an evidentiary procedure unreviewable, when the alternative was a no-room compromise that would make the evidentiary admissibility itself unreviewable. That is precisely what I have been saying the whole time, that is precisely what Chemerinsky was saying, and that is precisely at odds with the insinuation that Kazinski's post made.

Whoever made the point about the WSJ not being dismissed out of hand because of one editorial - absolutely correct. I don't think that this article is any more silly and uninformed than some of the things we read in other newspapers all the time, and all exhibit differing ideological valences.
2.10.2006 4:05pm
Noah Klein (mail):
JAO,

Thank you.

Noah
2.10.2006 4:08pm
Tom Holsinger (mail):
Kovarsky,

The real problem with the KK resolution of the procedural issue was its lack of transparency - a secret deal secretly arrived at. It and the decision-making process underlying it were not made known to the other FISA judges. THAT creates the appearance of impropriety in spades. Results should not be dependent on which judge hears a certain matter.

Worse, KK let herself be "compromised" here - she gave the Bush administration a means of tacitly blackmailing her. IMO she should immediately resign from the FISC.

IMO the Bush administration is gradually "compromising" and "co-opting" the FISA bench using known intelligence techniques. This is one of the possible explanations for Judge Robertson's resignation from the FISC.

It may be that such activity is fostered, or even de facto mandated, by structural weaknesses in FISA.

I'd rather not wait for some disaster to ditch FISA. I'd rather do it now so the Executive branch will have sole responsibility for any disasters, and so try harder to avoid those Right now they can, quite possibly correctly, evade responsibility by claiming that FISA's weaknesses made it happen. Evasion of responsiblity is a classic game and bad statutes like FISA foster them. Only here the consequences of failure could be catastrophic.
2.10.2006 4:20pm
Noah Klein (mail):
The funny thing is that I remember about a month ago, when the letters from Pelosi, Harman and Rockfellar came out, the people defending the administration said well the presiding judge didn't object to the NSA program so can it be a violation of FISA (paraphrasing). Now that evidence has come out that two presiding judges appointed by CJ Rehnquist has come out, the defenders of the program can't stop lampooning those judges for trying to exclude tainted from their courts.

Noah
2.10.2006 4:29pm
KMAJ (mail):
JaO,

First, trust me, I do not take any of your condescension or demeaning attempts to ridicule personally, to do so would actually be lending you power and authority.

Re: The WaPo article, as the reporter does not have access to what went on in the meeting, nor does he have access to facts of the actual NSA cases involved, the reporter DOES NOT have all the facts to present. Instead, he relies on an anonynous source's second hand recitation and engages in conjecture. Not having access to all the facts means your presentation is slanted, not matter how objective a reporter attempts to be. In this case, I question how objective the reporter attempted to be as this appears to be a prime example of gotcha journalism, rushing a story to print without knowledge of how accurate the second hand information is.

What I find really glaring is how the 'old media' refuses to cover the leak aspect of this issue with the same vehemence that they covered Plamegate. Do you defend such stilted coverage ? The lead paragraph says this has only happened TWICE in four years. It is a non-story, and once again we have anonymous senior officials leaking without any presntation of motivation. You are free to open and swallow as much as you like, I know the profession and how it operates, in my opinion, one is wise to question these types of stories, especially when the media has an iron in the fire, criminal liability from publishing classified information.
2.10.2006 4:43pm
Kovarsky (mail):
Noah,

I think the point of pro-inherent power camp is that inherent power is not residual in the sense that it derives from the absence of congressional action, but that it derives from article II of the constitution irrespective of congressional action. So, I think they are right in that congressional action doesn't really affect the president's inherent authority under their theory.

Where I think many of us disagree is not with the notion that if their theory is correct, the absence or presence of legislation is material, but with the idea that this formulation of inherent power is somewhat opportunistic, since nobody until john yoo has ever really understood it in anything other than this residual sense.

In defense of the John Yoo theory, it's never really been tested. But it's never really been tested in part because nobody's really considered it a viable enough theory upon which to base executive action, so it's never come up. Now, the theory goes, we have to test that legal understanding for the first time, because we're in a "post-9/11 world."

Then the Yoo camp sort of splinters, I think, into two sub-camps. The first is that all legal precedent is out the window, because the calculus is different. This is the argument that I think most of us just sigh at, because there's just no common plane of argumentation.

The second camp is one that thinks that the constitution contemplates and provides for this sort of paradigm shift in the form of the non-residual understanding of inherent authority granted to the president. Yoo's thoery of executive power, while almost universally lauded as an important piece of scholarly work, has been pretty much exposed as an exercise in federalist paper cherry picking.

Klein somewhat buttresses the argument, as it held that Congress could not require courts to functionally override the president's pardon by excluding certain evidence. It's hard to see the analogy, though, because the pardon power is an enumerated one, and the only enumerated power associated with the issue here is the power as commander in chief. So Klein makes it seem as though you would have to argue that the FISA courts effectively null the president's enumerated power as commander in chief. I don't see how that argument is made, but it might be there somewhere. I just can't seem to figure out precisely what it is because the response to the point I just made is always a slew of "you're stupid's" or "you just don't get it's," etc.

But I think the beef with the second subset of Yoo camp is this. If you think that is what the constitution means, and you have that authority, why does it seem as though the administration is so methodically avoiding an Article III determination that such is the case? Surely everybody would benefit from knowing whether or not the executive is correct in its interpretation. The reply is, of course, that the Supreme Court's interpretation of constitutional power is no more legitimate than that of the executive, so the executive can make the determination itself. I read that as a head-on affront to Marbury, but there are arguments to the contrary.

That is, however, a long-winded explanation for why I think proponents of the president's position really don't care about the presence or absence of legislation addressing the matter.
2.10.2006 4:44pm
srg (mail):
Noah,

Your answer to me was, "this is not throwing the "baby out with the bathwater." Information is still in the government's hands and they can still use it prevent a terrorist attack. They just can't use it to get a FISA warrant."

This is small consolation. If there is a terrorist threat, we want the information to be used to obtain more information, which may require a FISA warrant. Otherwise, the options are to forgo necessary infomration which might prevent an attack or to go around FISA a second time. Hardly a good choice.
2.10.2006 4:50pm
Kovarsky (mail):
KMAJ,

Are you equally infuriated that the 'old media' has also placed the valerie plame intel leak on the backburner, even when it is now clear that cheney is involved, while it investigates the far more institutionally important matter of what on earth is going on here?

I mean I agree with you - it is absolutely crucial that this country figure out who is and why they are leaking classified information!
2.10.2006 4:59pm
Noah Klein (mail):
Srg,

As I read the article, all the FISC presiding judges wanted was to make sure that they know if the government wants to use evidence obtained through this program. The article says that the executive failed to do this and it was this failure to notify the court of how the information was obtained that angered both presiding judges and Robertson.

Furthermore, this move by the FISC does not prevent the government from continuing to surveil the suspects. According to the theory laid out by the administration, they are able to pursue foreign intelligence without the FISC approval and thus they can continue to surveil these people without any participation by the FISC, if they deem it "necessary and appropriate" to the prosecution of this war.

Finally, a FISA warrant is not a necessity to preventing a terrorist attack. If the administration gains information about a cell or the location of an attack they can place more security at that location or detain the cell. Now the suspects will get off if they are tried, because of the warrantless wiretaps, but that's not an issue in defending the country, is it? That's an issue of prosecuting a crime, which is not important during a war, right? The Bush administration in their opinion can lock these guys up forever, including American citizens (Padilla). Do you see how these actions are counter to our ocnstitution and our beliefs or are these acts fine for prosecuting this new assymetrical warfare?

Noah
2.10.2006 5:13pm
Just an Observer:
KMAJ: Re: The WaPo article, as the reporter does not have access to what went on in the meeting, nor does he have access to facts of the actual NSA cases involved, the reporter DOES NOT have all the facts to present. Instead, he relies on an anonynous source's second hand recitation and engages in conjecture.

This is not evidence of bias, but rather the imperfect tautology that all the facts are not known. However, the Post was able to report some central and material facts, attributed to multiple sources. Which facts you have not disputed.

You call this "a non-story." I suggest that the serious attention given to the report by several law professors and by many posters here is evidence that your own news judgment is quite flawed.

Obviously, you will continue to repeat ad hominem attacks. Just by repetition you are able divert attention from substantive matters. Which, of course, is pleasing to White House operatives as that is the core of their political strategy of blowing smoke.

Meanwhile, I note that you now ignore my original question: Since you are on record here favoring a resolution of the legal merits in court, why do you not endorse Sen. Specter's request that the government submit those issues for judicial review?
2.10.2006 5:18pm
KMAJ (mail):
Kovarsky,

There are many issues about Plamegate that concern me, including the lack of investigation into the other side of the issue, i.e. nepotism, lack of Wilson signing a standard non-disclosure form, etc. I think the recent alleged Cheney revelation of authorizing Libby to 'leak' classified information (by the way the info he authorized Libby to leak in the story was NIE info, not Plame) is somewhat of a strawman, when recognizing the executive branch has the authority to declassify information, and authorizing such a leak essentially performs that function. My concern also goes to the fact that no violation of the original charge has been brought forth. I think it is dangerous when elements in the intelligence sector insert themselves in the political arena, regardless of which party is in power.

As far as Plame being on the backburner, it is still getting more coverage than the leak aspect of the NSA program and it dominated the front pages for months, the NSA leak case has not made the front page for more than a day, and they play up Tice as some sort of victim or heroic whistleblower. To use the same coverage standard, shouldn't Libby be portrayed as a heroic whistleblower exposing nepotism and failure in the CIA to adhere to normal standards ? I find it frustrating to have to read and listen to news from more than one source to attempt to get to a sound factual basis. Let me cite a new example, recently one of Saddam's generals has come out and stated the WMDs were sent to Syria and now audio tapes are beginning to bring secondary verification, that would seem to me to be a big story, but where is the coverage ? I blame Bush as much as the media for this, these documents and tapes should have been a top priority to get translated and disseminated, instead, if reports are true, only 50,000 out of over 2 million have been translated, that is simply ridiculous.
2.10.2006 5:43pm
Tom Holsinger (mail):
Kovarsky,

The essence of Yoo's war powers argument is that a President's inherent constitutional powers are whatever he can successfully exert despite opposition by one or both of the other branches. History has shown that to be correct.
"Why is it that treason never prospers? Because if it prospers, none dare call it treason!"
2.10.2006 5:54pm
Noah Klein (mail):
KMAJ:

On the Saddam issue, this the same argument that is made by Stephen Hayes with regards to the Saddam-OBL link. You both say well look at all this evidence that has been collected to demonstrate that there was a Saddam-OBL link or that Saddam did have weapons of mass destruction. Do you really think that Bush would suppress this information or not mention it if it gave greater credibility to the reasons to go to war? You have to be kidding. The Bush administration knows how to spread a message. If these examples of "evidence" that adds credibility to their case for war were true, we wouldn't be hearing of them from Stephen Hayes or you. Bush would call for a press conference or a speech in primetime and proudly demonstrate the proof. And not only that, but we would hear about this from Bush officials non-stop (remember the Libby leak to the New York Times about the nuclear program that was backed up by four administration officials including Cheney). This evidence most likely is not true and is being presented by people whose sole aim is to reinforce their own biases.

Noah
2.10.2006 5:54pm
Kovarsky (mail):
Presumably the president does not agree with your theory of "declassification," as he pledged to clean house of "whomever was involved." I doubt he would say that if he thought the declassification was legal.

I actually DID see the Syrian story that you are talking about; they asked the guy who his sources were, and he essentially said "some buddies of mine in the military." I think it's odd that you would equate a story with the level of source attribution to the NSA story, which has, o, one thousand sources.

I don't want the thread to spin off into some exchange about the media though, so I'll stop. I do want to address one thing though - the idea of equating the Plame leak with the Tice is revolting. Tice leaked classified information involved with a program the legality of which is at the very least dubious. Libby et. al "outed" nothing of similarly questionable legality.
2.10.2006 6:01pm
Kovarsky (mail):
Tom,

I understand that is Yoo's position. It is precisely that claim with which we disagree. I was just explaining why the presence or absence of legislation doesn't matter under Yoo's framework.
2.10.2006 6:03pm
Just an Observer:
Hugh Hewitt now takes his argument to the next level:

To be blunt: There may be domestic agents of al Qaeda in the U.S. who are evading comprehensive surveillance because Judge Kollar-Kotelly refuses to accept applications for FISA warrants based on intelligence garnered from warrantless NSA surveillance.


Hewitt may well be right.

I am compelled to add that the keys to solving this problem are in the hands of President Bush and AG Gonzales. All they need to do is file warrant applications with FISC that present the question of the legality of warrantless surveillance, as Hewitt says they should have done to begin with. Then, after their legal theory is vindicated in the courts, the government will be in a position to seek more legitimate warrants to surveil Al Qaeda agents domestically,

So long as the government remains a fugitive from the federal courts on this matter, our security may be the worse for it. We are in danger.

Hewitt's blog actually encourages readers to call FISA judges' chambers to lobby the issue. I find this a strange suggestion for a law professor to make, and suggest instead a lobbying campaign directed at the elected President.

Mr. President, tell it to the judge!
2.10.2006 8:23pm
Tom Holsinger (mail):
Professor Kerr,

No one here understands the implications of my posts. I address this to you.

It seems to me that the Bush adminstration is treating the judicial branch as it would a potentially dangerous foreign leader such as President Musharaf of Pakistan, i.e., it is playing spooky games on them. Among those are divide &rule (the deal with KK secret from the rest of the FISA bench), "compromising" aka "dirtying" judges by enticing them to engage in arguably improper behavior (KK's deal again) so it can improperly influence their behavior (Judge Robertson's resignation looks more like that to me now than it did earlier), and in general creating an atmosphere in which it has discretion to operate secretly (hidden from all oversight) in matters it deems important.

The judicial branch is not equipped to deal with such conduct outside the customary adversarial system.

All this flows from the Rasul decision. The judicial branch has overreached in encroaching on the executive's core functions, while lacking the usual protection of an adversarial system. I repeat that the executive branch's counterattack has begun, and the judicial branch has no idea what is coming.

Only judicial self-restraint can save it, and that is something which the judicial branch has thrown aside "in pursuit of the Devil". And the Devil has turned on it.
2.10.2006 8:43pm
Kovarsky (mail):
Orin,

Nobody UNDERSTANDS the implications of my posts, so I address this only to you.

Every night I am visited by a champagne-colored bunny rabbit. It always speaks in reverse so that I have to record the conversation then play it back in reverse on my tape recorder.

When I play it backwards on my tape recorder, it tells me that the Beatles were trying to implant subliminal messages on their albums, particularly towards the end of their ouevre, and particularly in the song "Tomorrow Never Knows" at the end of Revolver, which coincidentally also contains a looped backwards track of Lennon screaming into a microphone.

The champagne colored bunny rabbit says that he's warning me about it because he feels guilty about giving Lennon the idea. He says his name is Hazel, and that he is the brave leader of the rabbits of Watership Down, and that he needs me to tell you, Threarah, of the impending apocalypse.

You are our only hope.
2.10.2006 9:19pm
Kovarsky (mail):
tom-

sorry, i was just poking fun, honestly. i agree that secret docket-shifting, even done to correct the opacity of the executive branch, is probably inimical to the interests the court seeks to secure.

i was really just playing around. i do think that people should give others more credit for understanding what everyone is saying, though.
2.10.2006 9:28pm
Medis:
I agree with Tom to the extent that he notes the courts are ill-equipped to deal with governmental misconduct outside of the narrow confines of a case falling within their jurisdiction. I disagree about Rasul, but I don't think that is actually material to his point. However, I also think that it is a very good thing that judges are pretty much powerless outside of their jurisdictional limits--otherwise, all the rhetoric about judges as tyrants would perhaps approach the truth.

So, the bottomline is that judges cannot be asked to deal sua sponte with illegal actions by the government. Of course, they can play a role in these issues insofar as a statute, treaty, or the Constitution grants a cause of action and a party with standing can bring a case (or, alternatively, such an issue arises as a defense). But the power of judges in such circumstances is still dependant on a combination of that source of law and this third party with standing to assert the claim against the government--and that, I think, is how it ought to be.
2.10.2006 10:29pm
KMAJ (mail):
Kovarsky,

I have to respectfully disagree with your assessment of the legal question in Plame. She did not fall under the identities act, she had not been overseas in 5 years. She had been a desk jockey analyst for 6 years.

The law is the law when it comes to classified information, leaking it to the media is a violation of the law, period. There is no grey area. If one has a question/complaint, they take it to an intelligence committee member or they take it to the inspector general of the intelligence agency. Those are their only options and still be able to maintain whistleblower protection. So it is actually the reverse in effect, clear illegality with the NSA leak versus no violation with the Plame leak.

JaO,

I am have not read up on Specter's proposal, so I would not make a specific judgement on it. I will say this, I think when you get to branch power arguments, as opposed to policy arguments, party membership becomes less relevant and the motivation can be branch loyalty driven. Certainly the legislative branch would want to hold onto power it had gained through FISA, even though it was reassigned to the judicial branch, and, naturally, the executive branch is going to fight for what it believes are its constitutional power. Which is as it should be. No branch should automatically cede to the other. If accepting the Specter proposal would be ceding executive branch power to the legislative branch, they would be foolhardy to endorse it and provide the legislative branch with ammunition to use in the legal argument.
2.10.2006 11:23pm
Kovarsky (mail):
Let's take it for granted that (at least some of) the FISC judges were going to have to rubber-stamp warrant apps, the underlying evidentiary admissibility of which they knew would not only would be unreviewable (it still is unreviewable, there was only a "gentleman's agreement), but unascertainable. Assume, as you many people here seem to believe, that the compromise is unacceptable. These are the options, as I see them:

(1) Resign.

(2) Go to a third party (I'm guessing that would constitute a leak and that the administration would go absolutely apeshit if they went to congress or the press).

(3) Issue a warning that is not legally enforceable.

(4) Strike a "secret" deal with the most sympathetic person on the other side.

(5) Just let it happen.


I would be fine with (2), but I think that if the people that consider any procedural discussion to constitute a national security risk want to be at all consistent, they have to abandon (2).

I am taking for granted that the answer is not just to let it happen, so that eliminates (5). (4) is gone because that's the call of the question - assuming that you don't want (4).

(3) sounds nice, but I think everybody on all sides would agree that it's not plausible.

So, it strikes me that if you don't want secret bargains, the only formalistic way around it, without "leaks", you've got to rely on judges resigning and resigning until some entity with some more appropriate measure of jurisdiction starts asking questions.
2.10.2006 11:32pm
Kovarsky (mail):
KMAJ,

I don't understand the implication of her being a desk jockey. Her identity as a CIA operative/analyst/whatever was classified. Unless the President authorized the leak (which nobody will argue, because it's political suicide), if anybody other than the president leaked the information, they are not "declassifying" the information by leaking it. Whatever the legality involved, I don't know anybody seriously disputing that it was out of a desire to discredit Joseph Wilson, whether or not that discrediting was warranted or not.

Please enlighten.
2.10.2006 11:42pm
Medis:
This is just an aside, but disclosing classified information is not per se illegal. Rather, US law makes certain kinds of disclosures under certain circumstances illegal.
2.10.2006 11:48pm
Kovarsky (mail):
Yes, I believe there are 4 provisions in the subchapter that define the types of classified information whose disclosure is forbidden. I do believe the "Tice" leak falls under the one dealing with communications infrastructure. I think it's (c). I'd look it up but I can't remember the statute cite right now.

I can't remember what the other 3 provisions in that subchapter are, but i'm guessing that the identity of a CIA agent falls into one of them. I could be wrong.
2.10.2006 11:52pm
KMAJ (mail):
Kovarsky,

Her name was not classified, Wilson himself had used her name and she had made political contributions using the Brewster cover business. In order for any crime to have occurred, she had to have served overseas within 5 years. There was no crime, though her nepotism was clearly against CIA protocol. This was politics and nothing more. She had been brought back because they thought Aldritch Ames had compromised her cover to the Russians, the agency also let her name slip to the Cubans. There is enough info out there if you want to search that has totally debunked Wilson.
2.11.2006 1:30am
Tom Holsinger (mail):
Kovarsky,

There is also JAO's point about no one FISA judge being able to see all of the elephant.

This aspect of the discussion illustrates my comment about the FISC's structural problems being such that FISA can't work as intended given this particular conflict. The drafters never envisaged America being an active zone of operations. They wrote FISA to deal with espionage in peacetime while protecting citizens from Executive over-reaching in surveillance of spies.

We need a new statute, but Congress doesn't want to have any responsibility for oversight (or responsibility most anything else). That significantly limits options in replacement legislation.

This is why I proposed that the Judicial branch be given the responsibility, and sufficient authority, to require that the Executive branch disclose to it all electronic surveillance of citizens, with or without warrants, and act as an independent repository for this information. That way the evidence of Executive abuses will be available to Congress on those rare occasions when it feels brave enough to do something about them.
2.11.2006 2:01am
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