The Volokh Conspiracy

Because the President is the head of a co-equal branch of government while the Commander-in-Chief merely heads a component of government whose regulation is subject to Congress's Article I powers, I maintain that CinC is a separate position from the Presidency whose only qualification is that the CinC be President.

Mr. Bush has never grasped that when he puts on the Brass Hat he subordinates himself to Congress rather than increases his autonomy. The Presidency gains no power when the President functions as CinC.

As someone who was working on security-related issues in Washington post-9/11 and who observed from the periphery during the drafting and enactment of the PATRIOT ACT, I can honestly affirm that there was a very large contingent of liberal Democrats in Congress who fought all the significant enhancements of national security in the PATRIOT ACT and would have sabotaged any attempt of the President to work with Congress and the Courts in the manner that Goldsmith suggests was a possibility. It may have been a strategic mistake on the part of President Bush's administration to take the path they did. It was definitely not a tactical error and in the heat of battle sometimes tactical neccessity must temporarily trump strategic designs. Goldsmith appears to have amde this point from what little I have gleaned about his book's contents.

Gotta agree with Prof. Somin.

Temp Guest: "Very large"? How large was this contingent of the minority party? Which provisions of the Patriot Act, etc., were filibustered? "Would have sabotaged" how, exactly?

"...working with Congress is an absolute mistake."

And you are an American? That anyone can seriously say such a thing shows how far Bush-mind has succeeded in corroding the outlook of otherwise decent people.

Bush failed to work with Congress? Are you kidding?

Do the AUMFs against al Qaeda and Iraq, briefings to Congress on the TSA, Patriot Acts, DTA, MCA, and FISA reform ring any bells?

Perhaps, the complaint is really not that Bush did not work with Congress, but rather that he had his way in Congress without many concessions to the Dem anti military left.

Bart,

The Detainee Treatment Act, The Military Commissions Act, TSA briefings, and FISA reform actually prove the point that Bush failed to work with Congress. They were responses to secret executive programs that resulted in the administration being caught with their hands in the cookie jar. Quoting that is like saying that Nature Boy Ric Flair is honestly Hulk Hogan's buddy when he's begging for mercy, even after pulling dirty tricks on the Hulkster for most of the match.

You can't decide you're going to go it alone, get caught, and then quote the conciliatory measures you use to save face as evidence that you were willing to collaborate all along.

And you are an American?

Why does the left persist on questioning peoples' patriotism?

The President has inherent powers under the Constitution. I simply advocate using those inherent powers to the extent possible.

As I pointed out above, the Patriot Act shows the folly of trying to work with Congress on everything. Goldsmith's book, from what I gather so far without having read it, seems to me to be a Rodney King-like "Can't we all get along" plea. I mentioned on Adler's post the other day, seems an Ivory Tower reponse to what is, at heart, a political struggle.

Bush tried to extend a hand to work with the Democrats in Congress with the Patriot Act. He got his hand bitten in response. Once bitten, twice shy.

A.S.:seems an Ivory Tower reponse to what is, at heart, a political struggle.

Call Goldsmith wrong or naive if that is what he is. But his book is certainly not a product of isolation in an Ivory Tower.

As someone who was working on security-related issues in Washington post-9/11 and who observed from the periphery during the drafting and enactment of the PATRIOT ACT, I can honestly affirm that there was a very large contingent of liberal Democrats in Congress who fought all the significant enhancements of national security in the PATRIOT ACT and would have sabotaged any attempt of the President to work with Congress and the Courts in the manner that Goldsmith suggests was a possibility.

I am playing Monday morning quarterback, but I think that the Bush administration should have taken them head on.

There were (and are) too many on the Left who are willing to take positions that they don't even believe to simply score points against the Administration. Consider the Swift payments system for example. There were many on the Left who (at least initially) implied that there was an absurdly broad right to privacy in financial transactions (e.g., many IRS programs to catch tax cheats would trample on this right). In situations such as these, the Administration should have directly called their opponents into account for their cynical positions.

Goldsmith also argues that the Bush Administration's approach was politically counterproductive and led to an actual diminution of the executive authority that the administration sought to enhance. Bush's overreaching generated a backlash in Congress and the courts that eventually led to stronger curbs on executive power than would have existed had the Administration tried to work with Congress early on and made less sweeping (but still broad) claims of inherent presidential power.

I'm still having trouble with this concept. It seems to me that Bush has succeeded in thumbing his nose at Congress and the courts, and has done so with impunity.

In some cases, such as the "Terrorist Surveillance Program," he has blatantly violated the law and escaped judicial review or even political censure in Congress. In the matter of detainee treatment and trial, Bush has lost some cases in the Supreme Court (Rasul, Hamdan) on statutory grounds, but belatedly got about all he asked for from Congress to overturn those decisions in the MCA -- including habeas-stripping and a retroactive rewrite of the War Crimes Act to legalize past violations by the executive branch.

Even on FISA, Bush recently has obtained much of what he demanded from a Democratic Congress. He failed to get a more ambitious gutting of FISA passed last year, but the play is not over.

As for the courts, once it became apparent that the Addington/Yoo Article II theory cannot prevail in SCOTUS, the administration has successfully pursued a strategy of avoiding review of that theory, while continuing to proclaim it in public.

(The administration and its allies in Congress do seem destined to lose on another constitutional issue -- habeas review for Guantanamo detainees. Technically, if that happens, it is Congress that will be reined in for violating the Suspension Clause via the MCA as applied to Guantanamo.)

The USA-PATRIOT Act, a substantial toolkit of additional authority granted to the President, was passed and later reauthorized. (BTW, does A.S. in his comments above mean to argue that Bush should simply have assumed those additional powers by fiat, without legislation?)

In general, where are the "stronger curbs on executive power?" I can't find them. Bush will run out the clock without meaningful rebuke, leaving his successors with historical (if not legal) precedents for defying the rule of law by fait accompli.

Bush tried to extend a hand to work with the Democrats in Congress with the Patriot Act. He got his hand bitten in response. Once bitten, twice shy.

He got a 99-1 vote in favor, for the love of God.

The fact that later, some people starting having problems with antics like the rampant abuses of NSLs is hardly a reason to point the finger at Congress. They were the ones who, perhaps foolishly, believed the Executive Branch would use their new powers in good faith.

The administration had every chance to get Congressional approval for amendments to FISA, long before the warrantless wiretapping program became an issue. They chose not to because they wanted to set a precedent regarding presidential powers, not because they were afraid the Democrats would demagogue the issues. Indeed, anyone who remembers the 2006 campaign ("Democrats don't want to listen in on the terrorists!") would laugh at the notion that the White House was afraid of Democratic demagoguery on the issue.

A.S: "Why does the Left persist on questioning peoples' patriotism?"

Oh, that's a good one. Which side has been calling opponents of the current administration traitors?

Seriously, tell another one. I need to split my other side laughing.

An important consideration to add to the mix: the Bush administration--in common with all previous administrations, Democratic and Republican alike--has refused to concede the constitutionality of FISA as it impinges on the President's national security responsibilities. Dicta in federal District and Appellate cases have supported that interpretation, most notably in Judge Silberman's Patriot Act decision In re Sealed Case. Moreover, the Bush administration is not the only administration to have violated provisions of FISA for what have been considered to be good reasons. The Clinton administration knowingly brushed FISA aside by conducting multiple warrantless searches of Aldrich Ames--yes, that's multiple, as in: the first search might have been an emergency, but the second and third and...

From a national security standpoint the entire history of FISA is a narrative of the Executive Branch seeking to safeguard its powers against the encroachments of an increasingly imperialistic Legislative Branch, while avoiding provoking a Constitutional showdown. Why avoid such a showdown? Because it would have been played out in a superheated public forum, in which the usual civil liberties rhetoric (displayed so inappropriately by Judge Marrero in his latest opinion) would be deployed to force the Executive Branch to buckle. In such an event an appeal to the Judicial Branch might well result in a far reaching political defeat with Constitutional consequences, no matter what the Judicial Branch might rule. These are important considerations that are sadly missing from this forum's discussion. While Bush has been able to win some of these political struggles, it has not been easy and opposing arguments emanating from Congress have typically not been based on principled Constitutional analysis; rather, they have been presented for short term political advantage to the detriment (and it appears Professor Goldsmith would agree) of national security.

Not having access to Professor Goldsmith's book, I can't say how he addresses these issues. From what I've read on the internet, it appears that he may not take this bull by the horns. And that would be unfortunate.

A.S.,

How did the Democrats demagogue the Patriot Act to death? Congress passed it.

How did the Democrats demagogue the Patriot Act to death? Congress passed it.

Well, there are some Democrats that voted for it and now say that they would have voted against it "had they had known" about some unspecified ramification. It is not unheard of for politicians to take both sides of an issue.

The case is now similar to us, where the Bush Administration is creating "Pineapple Organization.""

Well, thats obviously not true, but there seem to be many who would eagerly sign up for such an organization if it were. How far is it from "opposing arguments... have been presented for short term political advantage to the detriment of national security" to the conclusion that people who disagree with us must be prosecuted because they are enemies of the state?

SG:

I wish the Democrats (who do now control both branches of Congress) would actually do something about these horrible abuses they continually decry, like say, pass some legislation.

There have been numerous Democratic proposals to amend the Patriot act. If you're wondering why they aren't busy right now passing laws that Bush would veto, the answer is because Bush would veto them.

srg:

A.S., How did the Democrats demagogue the Patriot Act to death? Congress passed it.

Nothing prevents a Congressional Representative or Senator from demagoging a piece of legislation and then voting for it anyway. These are not mutually exclusive events.

Rather, it is merely yet another demonstration of the hypocrisy in which the modern Dem politician has to engage to satisfy his anti military base (a majority of his or her party, but a minority of the electorate) while not offending everyone else he or she needs to get reelected.

I guess what Goldsmith misses, is that the precedent of previous wars, and Supreme Court precedent all mostly supported the Bush Adminstration positions. Youngstown, Keith, Truong, Re-Sealed Case all provided the Adminstration solid ground for its positions.

srg: A.S., How did the Democrats demagogue the Patriot Act to death? Congress passed it.

Bart: Nothing prevents a Congressional Representative or Senator from demagoging a piece of legislation and then voting for it anyway.

Did you miss "to death," Bart?

But really, I just came back to remark that The Goldsmith Contradiction is a great Robert Ludlum title.

"To Death" is usually used to demonstrate excessiveness and not generally meant literally.

Even after the administration ultimately agreed with Congress's decision to place the authority to pre-approve such searches in the Foreign Intelligence Surveillance Act (FISA) court, President Clinton still maintained that he had sufficient authority to order such searches on his own.

This sentence by York makes no sense. Clinton took the position in 1994 that he had the inherent authority to conduct physical searches. The statute wasn't amended until 1995.

Yes, Clinton tried to persuade Congress not to amend the statute, but there's no evidence to support the proposition that he felt he was entitled to disregard FISA even after it was amended. The "inherent authority" under discussion here is inherent authority in the ABSENCE of legislative action on the subject.

Just An Observer, my immediately preceding post answers your most substantive criticisms. It's important to note that, while the warrantless Ames searches did not violate FISA at that time, they did violate what was considered to be existing and well established search and seizure law in criminal investigations. While the Ames case was a national security matter, of course, it was also a criminal case--as evidenced by his conviction using evidence that was seized pursuant to the warrantless searches. The only reason that flew was because President Clinton claimed "inherent authority" to conduct warrantless searches in national security matters--even when the product of those searches would be used in a prosecution. So, let's be real here: does anyone doubt that the administration intended all along to prosecute Ames? Of course not.

Again, not to be too pompouse, but I'll quote myself: This isn't about Dem v. GOP or liberal v. conservative. It's about separation of powers and preservation of an effective Executive Branch in a dangerous world. And that's what Professor Goldsmith is attempting to address, from what I've read.

Is that honest enough for you?

Just an Observer, Congress may have been silent about warrantless searches, but neither the Constitution nor the Courts were/had been silent. I will state flatly that NO court would have refused a warrant in the circumstances of the Ames case, had the administration bothered to apply for one. They could have had a warrant virtually within minutes of even a verbal request and commitment to send paper ASAP.

"There is no contradiction between saying the left questions peoples' patriotism and the right questioning peoples' patriotism. Both assertions can be true, and the truth of one has no bearing on the truth of the other. There is no contradiction nor any irony."

Of course. I pointed out no logical contradiction and there was none. I'm merely drawing contextual attention to the fact that in today's political climate, and perhaps in most of modern American history, the right is usually the side that questions the patriotism of others, often without any credible justification (from Red Scares to Swiftboating). The left of course, tends to question the priorities and wisdom of the right, including the subordination of other values to military might and America Firstism. It's just a bit rich to accuse the left writ large of questioning patriotism.

anduril,

You apparently have convinced yourself that FISA is unconstitutional, and I disagree. Since you subscribe to Byron York as a constitutional authority in the matter of inherent war powers, and I (along with every sitting member of the Supreme Court) favor Justice Jackson's framework from Youngstown, neither of us is going to convince the other on the merits.

My practical point, in the context of the Bush administration's history, is that Bush will not test this question in court, where it could be settled.

Meanwhile, I interjected originally because I just wanted to get certain facts straight. And I note that when challenged you failed to support your original statement that all presidents since Carter have "refused to concede the constitutionality of FISA." I didn't think you could, because, in fact, no president before Bush 43 has done so. Nor has any other president violated FISA, AFAIK.

(And as a footnote, just to correct your most recent factual error, the fruits of the Ames search were not, in fact, used in a prosecution. He pleaded guilty so the question of Fourth Amendment admissibility did not arise. Not that this is even relevant to the question at hand. As you now concede, FISA did not yet prohibit such a physical search without a warrant, so the search in no way implicated the statute's constitutionality as a separation-of-powers matter. It's really pretty simple: As far as FISA was concerned, the warrantless physical search was lawful when it was conducted, but would be unlawful today. Similarly, before 1978, warrantless electronic surveillance for foreign intelligence purposes was lawful; since FISA was enacted, it generally is not.)

Congress may have been silent about warrantless searches, but neither the Constitution nor the Courts were/had been silent. I will state flatly that NO court would have refused a warrant in the circumstances of the Ames case, had the administration bothered to apply for one. They could have had a warrant virtually within minutes of even a verbal request and commitment to send paper ASAP.

Of course, the issue is not warrantless searches in the abstract, but the specific matter of warrantless searches directed against a foreign power or an agent of a foreign power for intelligence gathering purposes.

Which court are you presuming had jurisdiction to grant warrants for such searches and why?

What I found funny about A.S. plaintiff question ""Why does the left persist on questioning peoples' patriotism?" is that he would assume that I am part of "the left."

What's is happening, A.S., is that vast numbers of people who do not think of themselves and objectively are not part of "the left" (e.g. moi) are fed up with Bush's incompetent defense of the nation and his attacks on the Constitution.

Btw, I wasn't attacking your "patriotism" but questioning literally whether you understand the magic of America -- that its foundation is an attempt to be a nation of laws, as in for example that the President must work with Congress -- it's not optional.

Montie: Thanks for that. I'd never read about Kulaks.

My practical point, in the context of the Bush administration's history, is that Bush will not test this question in court, where it could be settled.

Gee, and I thought that was my point, too--for reasons given.

...when challenged you failed to support your original statement that all presidents since Carter have "refused to concede the constitutionality of FISA." I didn't think you could, because, in fact, no president before Bush 43 has done so.

One step at a time.

1. The constitutionality of FISA is not an all or nothing proposition.

2. You neglect to quote my original statement in its full relevant part:

the Bush administration--in common with all previous administrations, Democratic and Republican alike--has refused to concede the constitutionality of FISA as it impinges on the President's national security responsibilities.

I understand that selective quotation may bolster your argument, but that's not telling the truth, is it?

3. As for conceding the constitutionality of FISA as it impinges on the President's inherent national security responsibilities, I did in fact provide a concrete example from the Clinton administration, in which Deputy AG Gorelick drew distinctions between criminal investigations and intelligence gathering. In fact, the terms of the FISA statute make no such distinction. Gorelick's testimony put Congress on notice that the administration did not concede the reach of FISA to all the President's inherent authority.

A former Associate AG in the Clinton administration, John Schmidt, has also addressed that issue:

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

FISA contains a provision making it illegal to "engage in electronic surveillance under color of law except as authorized by statute." The term "electronic surveillance" is defined to exclude interception outside the U.S., as done by the NSA, unless there is interception of a communication "sent by or intended to be received by a particular, known United States person" (a U.S. citizen or permanent resident) and the communication is intercepted by "intentionally targeting that United States person." The cryptic descriptions of the NSA program leave unclear whether it involves targeting of identified U.S. citizens. If the surveillance is based upon other kinds of evidence, it would fall outside what a FISA court could authorize and also outside the act's prohibition on electronic surveillance.

And again, in a very interesting discussion of AG Edward Levi's suggestions for a FISA type regime:

Although Levi supported legislation in the foreign intelligence area, he rejected the position of Bush critics that the president's authority to order warrantless foreign intelligence surveillance can be limited by Congress to a statutory procedure. Levi told the Church Committee that the president has inherent constitutional authority to conduct such surveillance. Asked by Sen. Frank Church "if the constitutional powers in the area of foreign intelligence are exclusive to the executive or whether they are concurrent with the legislative branch," Levi replied:

"They are sufficiently concurrent so that legislation by the Congress would be influential . . . You are asking me whether I think there is presidential power beyond that, and my answer is `Yes.'"

So, there's the Carter administration, too. I'm not going to bother with Reagan and Bush 1.

Finally:

And as a footnote, just to correct your most recent factual error, the fruits of the Ames search were not, in fact, used in a prosecution. He pleaded guilty so the question of Fourth Amendment admissibility did not arise.

I'm sure Ames, currently still imprisoned in Allentown Federal Pen, would be surprised to learn that he was never "prosecuted." He would no doubt be equally surprised to learn that the threatened use at trial of evidence seized pursuant to the warrantless searches had no influence on his guilty plea. The fact is, it was that evidence that persuaded Ames to plead rather than go to trial, and it was the threat of a constitutional challenge to the warrantless searches of the residence of a US citizen being investigated for a criminal violation that persuaded the government not to seek the death penalty. As in most plea bargains, there was something in the Ames plea for both sides. That unfortunate precedent probably saved Hanssen from the death penalty, as well, on the claim that it was unfair to execute him when Ames had received life.

Regarding Youngstown, Justice Jackson's concurring opinion, in which no other Justices joined, is of questionable value as precedent. I would like to extend a Just an Observer style challenge. Just an Observer asserts that all sitting justices buy into Justice Jackson's reasoning. I would be interested in some documentation. as that might not be totally reassuring to those who are concerned about a rogue Executive Branch. I say that based on Professor John Eastman's testimony re Youngstown:

Justice Jackson famously described a three-tiered system for assessing the separation of powers issues that lie at the intersection of presidential and congressional power. Obviously, the President’s authority is at its peak when he acts both pursuant to his own authority under the Constitution and by virtue of additional statutory authority given to him by Congress—Justice Jackson’s Category 1. Less strong, but no less certain, is when the President acts by virtue of his own constitutional powers, in the face of congressional silence—Category 2. Finally, Justice Jackson even conceded that, at times, the President could act pursuant to his Article II constitutional powers despite an explicit act of Congress to the contrary—Category 3. Congress cannot pass a law that curtails powers the President has directly from the Constitution itself. The problem for Truman, according to Justice Jackson, was not that he exceeded statutory authority, but that his constitutional war powers did not, under the circumstances, permit him to trump the mechanisms of the relevant congressional statute. Congress had not authorized the war, and the nation’s steel mills were too far removed from the “theater of war” to fall under the President’s power as Commander- in-Chief.

From this it would follow that, if Congress gave a President, oh, let's say an AUMF, all bets might be off as to what his actions could be.

Justice Jackson's concurring opinion, in which no other Justices joined, is of questionable value as precedent.

Might want to use that Sword to solve your troll problem.

MacGuffin, go read accounts of the Ames investigation.

I have. They indicate that the physical search was conducted after considerable evidence against Ames had already been collected, including via wiretaps conducted under FISA court order.

Please answer the questions I put to you.

Me: My practical point, in the context of the Bush administration's history, is that Bush will not test this question in court, where it could be settled.

anduril: Gee, and I thought that was my point, too--for reasons given.

And as I understand your "reasons given," they are essentially the same as mine: The administration will not test this question in court because it fears that the theory you propound would lose there!

anduril: Regarding Youngstown, Justice Jackson's concurring opinion, in which no other Justices joined, is of questionable value as precedent.

Its precedential value lies in the fact that it is cited as precedent by subsequent court decisions and opinions, notably forming the foundation of the court's holding in Dames &Moore v. Regan, written by Rehnquist.

Additionally, Jackson's Youngstown concurrence was cited by the plurality and dissents in Hamdi, as well as almost every justice writing in Hamdan (even by Thomas, who expressly placed his dissent within Jackson's framework). Jackson's Youngstown framework is cited by every sitting justice on the court today. Roberts fairly worships the opinion, as evidenced by his confirmation-hearing remarks. Alito even said during his own hearing that if he had to consider the FISA controversy, he would do so within Jackson's framework from Youngstown.

So if you don't mind, I'll take these justices' respect for this precedent above your own conclusory statement. (Notably, John Yoo essentially dismisses the Youngstown framework as you do, which only shows how far from the conservative mainstream his radical constitutional theories are.)

From this it would follow that, if Congress gave a President, oh, let's say an AUMF, all bets might be off as to what his actions could be.

That is a very different question, one of statutory interpretation. As Alito explained at his hearing, that statutory analysis would be the first step in a general analysis under Youngstown.

If the courts should find that the 2001 AUMF was an implied repeal of FISA, then the constitutional question would not be reached. (The compatible way of viewing that scenario under Youngstown is that such a statutory holding would place the case under Category 1, where the president acts in accord with congressional action. The president's actions would be upheld based on the threshold reading of the statutes.)

But there has been no such statutory holding.

From what most observers surmise about Goldsmith, he is believed to have rejected Yoo's constitutional view that Article II trumped FISA, but rather formed a more limited opinion based on an expansive statutory reading of the AUMF. (A theory which also lacks judicial and congressional support, to put it mildly.)

But in any event, this theory is hugely different than your original assertion that FISA is unconstitutional.

If the AUMF theory fails, then the case of violating FISA is analyzed squarely in Youngstown Category 3, which is a roadmap to ruling against the administration. In order to prevail in that situation, DOJ would have to prove either that Congress lacked authority to regulate surveillance in the first place, or did actually impinge on an indefeasible power of the president. But that is precisely the constitutional argument the administration is afraid to tee up for SCOTUS review, because is would likely lose by at least 8-1.

Elsewhere, you persist in mischaracterizing Gorelick's testimony by placing your own false interpretation on the word "inherent." No one -- not me, not Deputy AG Gorelick -- argues that absent congressional action the president lacks such "inherent" power. But "inherent" does not mean "exclusive" or "indefeasible." (As Jackson said in Youngstown, the president's powers vary, depending on what Congress has done.) In fact, Gorelick testified in favor of bringing physical searches under FISA's binding requirements.

You make a similar error in your cut-and-past of Schmidt's testimony -- all of which involved pre-FISA cases.

As for Schmidt's personal opinion today about the constitutional scope of FISA, he is not president and never has been, and was not speaking for his former administration. (BTW, Levi was speaking before FISA was finally enacted, and he was in the Ford administration, not Carter's. Carter spoke for himself in signing FISA, declaring that the legislation resolved the matter.) So, once again, please show where President Clinton (or Carter, or Reagan or Bush 41, has taken a position that FISA is unconstitutional. I will also accept an OLC opinion issued under their administrations making such a claim. Hint: There are no such statements.

There certainly was a minority view when FISA was being considered that it could not bind the president, and a minority reasserts that view today in political venues. If the president wants to assert that minority view, he is free to do so in court, but will not because he knows he would lose. His entire strategy has been to avoid judicial review of that question, while seeking a legislative fix. Congress is free to repeal or amend FISA, and that is where Bush has placed his marbles.

I find it singularly striking that NO ONE refers to the powers exercised by past Presidents in such situations. FDR and Truman would be appalled at the legalezz of today's society. which seems to have a goal of neutering the country's ability to respond to enemies. Roosevelt put some extreme antagonists and security risks in mental institutions for the duration. He used the FBI prior to the entry into the war for terminations.

Dick -- can I call you that? -- did you consider maybe that the actions you fondly reminisce of, are *precisely* what we *don't* want presidents doing today?

JaO, you are patience personified. I hope I grow up to be like you!

Just an Observer:

I think you're placing too much weight on Youngstown. It's one thing for the Court to cite Jackson's unsupported concurrence in a situation in which Congress and the Executive are on the same side and in which the Executive Orders in question were issued in response to what were clear Acts of War by a foreign nation. There would be no such clarity or unanimity if FISA came before the Court on a constitutional challenge--which is precisely why (as I said) no president, not just Bush, is eager to challenge FISA in court. On the other hand, the fact of the presidential briefings of the Congressional leadership and the leaderships acquiescence in the Executive's actions (OK, Rockefeller wrote a memo to himself) illustrate that it isn't just the Executive who has doubts about the full reach of FISA. Congress isn't eager to take this to the Court either. In other words, this is a political controversy as much or more than a legal one.

Why then do so many justices give as much deference to Youngstown as they do? Probably because, as Rehnquist noted in Regan,

The questions presented by this case touch fundamentally upon the manner in which our Republic is to be governed. Throughout the nearly two centuries of our Nation's existence under the Constitution, this subject has generated considerable debate. We have had the benefit of commentators such as John Jay, Alexander Hamilton, and James Madison writing in The Federalist Papers at the Nation's very inception, the benefit of astute foreign observers of our system such as [453 U.S. 654, 660] Alexis de Tocqueville and James Bryce writing during the first century of the Nation's existence, and the benefit of many other treatises as well as more than 400 volumes of reports of decisions of this Court. As these writings reveal it is doubtless both futile and perhaps dangerous to find any epigrammatical explanation of how this country has been governed. Indeed, as Justice Jackson noted, "[a] judge . . . may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves." Youngstown Sheet &Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (concurring opinion).

In other words, they were looking for a safe resolution of a specific case, not to make new law:

Our decision today will not dramatically alter this situation, for the Framers "did not make the judiciary the overseer of our government." Id., at 594 (Frankfurter, J., concurring).

Below, we will see J. Thomas using Regan to argue against a mechanical interpretation of Youngstown.

Regarding Hamdan, I think you overstate your case. The Court's opinion was highly divided. Youngstown was referred to in a footnote by Souter--the other two concurring opinions don't cite Youngstown so, in the circumstances, it's difficult to say how much weight to place on that. Thomas also cites Youngstown--in dissent. The other two dissenting Justices, Scalia and Alito, make no reference to Youngstown.

In Hamdi the Court's opinion only cites Youngstown for the general proposition that the Executive has no "blank check" when it comes to war powers (the phrase "blank check" however is not used in Youngstown). Justice Thomas' dissent, on the other hand, in citing Youngstown, uses Regan to argue against any mechanical reading of Youngstown:

...because "Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act," it should come as no surprise that "[s]uch failure of Congress ... does not, 'especially ... in the areas of foreign policy and national security,' imply 'congressional disapproval' of action taken by the Executive." Dames &Moore v. Regan, 453 U. S. 654, 678 (1981)(quoting Agee, 453 U. S., at 291). Rather, in these domains, the fact that Congress has provided the President with broad authorities does not imply--and the Judicial Branch should not infer--that Congress intended to deprive him of particular powers not specifically enumerated. See Dames &Moore, 453 U. S., at 678. As far as the courts are concerned, "the enactment of legislation closely related to the question of the President's authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to 'invite' 'measures on independent presidential responsibility.' " Ibid. (quoting Youngstown, 343 U. S., at 637 (Jackson, J., concurring)).

Clearly the precedent of Youngstown cannot be taken too far. Especially, as Professor Eastman notes, it must be closely considered just what Youngstown stands for. While it is commonly considered to be a limit on the Executive, due to its outcome, the actual language of Justice Jackson is now used to support expansive Executive powers. Respect for Youngstown is very much of a two edged sword, and for that reason I again assert that it's value as precedent is overrated--it can be made to mean what the Court wants it to mean to justify rather various outcomes.

You accuse me of mischaracterizing Gorelick's testimony:

Elsewhere, you persist in mischaracterizing Gorelick's testimony by placing your own false interpretation on the word "inherent." No one -- not me, not Deputy AG Gorelick -- argues that absent congressional action the president lacks such "inherent" power. But "inherent" does not mean "exclusive" or "indefeasible." (As Jackson said in Youngstown, the president's powers vary, depending on what Congress has done.) In fact, Gorelick testified in favor of bringing physical searches under FISA's binding requirements.

Here again you're trying to box me in to an all or nothing approach to FISA. Gorelick was trying to establish a principled approach to FISA. She had no objection to physical searches within the US being controlled by FISA, but she also made it clear that intelligence gathering was another matter entirely because it would "restrict the president's ability to collect foreign intelligence necessary for the national security." What more was she supposed to do--throw down the gauntlet? No, just as Bush has done with his signing statements the Clinton administration was signaling what it could accept and what it couldn't. A Congressional hearing is not a legal opinion--it's political give and take between the two Branches, who are also looking to establish a position in the event of legal challenges.

The entire intent of my initial post was that this matter should be placed within a political context. Thus, when you state:

You make a similar error in your cut-and-past of Schmidt's testimony -- all of which involved pre-FISA cases.

As for Schmidt's personal opinion today about the constitutional scope of FISA, he is not president and never has been, and was not speaking for his former administration. (BTW, Levi was speaking before FISA was finally enacted, and he was in the Ford administration, not Carter's. Carter spoke for himself in signing FISA, declaring that the legislation resolved the matter.) So, once again, please show where President Clinton (or Carter, or Reagan or Bush 41, has taken a position that FISA is unconstitutional. I will also accept an OLC opinion issued under their administrations making such a claim. Hint: There are no such statements.

you are ignoring the political nature of our constitutional system. Thus, I will not accept your hierarchy of authorities. In this context no one should expect any President to make a speech challenging the constitutionality of FISA or certain aspects of it. Nor should one expect OLC to issue a written opinion on such a subject. On the other hand, Congress, or the Gang of Eight Leaders, knew what the administration was doing and kept their mouths shut. Why? Because they didn't want to be tarred as soft on terror--with good reason, as we saw this summer. The result is a political tug of war, which you want to transform into a judiciable case. Ain't gonna happen, most likely. In safe times Congress will push FISA and the Executive will be conciliatory, but in times of danger the Executive will take courage and Congress will dissemble--that's why they built in the escape clause to FISA. Nobody wants to be left holding the bag.

As to Levi, yes, he was AG under Ford. However, President Carter did, in his signing statement, specifically note Levi's fine work on FISA--something he needn't have done.

Further clarification re Ames:

My posts re Ames (after the initial reference) were largely responses to MacGuff's interest in that case. I never claimed that Ames had anything to do with the constitutionality of FISA. While I was mistaken in asserting that the Clinton administration had ignored FISA in the Ames case, I am correct in asserting that the warrantless searches of Ames' residence very arguably violated what was considered settled 4th amendment jurisprudence. The administration's argument, that they had "inherent authority" to conduct warrantless searches if the underlying matter involves national security does, in fact, involve separation of power issues.

MacGuffin
Actually, anduril, by the time the FBI searched Ames' house in October of 1993, the CIA and FBI had already accumulated a huge amount of information and evidence against Ames. This included numerous documents that Ames had taken without authorization, as well as his written and wiretapped indications of intent to deliver those materials.

The FISA take was not enough to get a conviction. They could have searched the house after the arrest, so why were they prolonging the investigation and endangering the materials in the house--Ames could have given them the slip, as he did on many occasions, and delivered the high value documents. Besides, you're simply wrong.

MacGuffin
Despite your strident, though unsupported, assertions of knowledge that the FBI search of Ames' house was intended to collect criminal evidence, it is entirely conceivable that the search was conducted for its high foreign intelligence value even if the fruit of the search could not be used in a criminal court. Speculations on intent aside, we do know that the results of the search of Ames' house were not, in fact, used in criminal court. There was no need for a court order allowing for such a foreign intelligence search, nor was there a court with the jurisdiction to make such an order.

1. The congressional reaction to the Ames searches--revision of FISA to cover such searches--illustrates clearly how ill-advised the warrantless searches were.

2. Since when is there no court with jurisdiction to issue a search warrant in an espionage investigation? You state that the FBI had already collected valuable information both from FISA wiretaps and (probably) trash covers--enough, in your expert opinion, to convict Ames. Ergo: plenty of probably cause to get a warrant to search his house and seize even more evidence that could be used without serious challenge. No, they were looking for more evidence.

Clever, Anderson. I think I just "got" the drift of your inquiry while I was away taking a leak.

I almost overlooked this hilarious whopper from anduril:

I think you're placing too much weight on Youngstown. It's one thing for the Court to cite Jackson's unsupported concurrence in a situation in which Congress and the Executive are on the same side and in which the Executive Orders in question were issued in response to what were clear Acts of War by a foreign nation. There would be no such clarity or unanimity if FISA came before the Court on a constitutional challenge--which is precisely why (as I said) no president, not just Bush, is eager to challenge FISA in court.

Gee, I guess Justice Jackson included Categories 2 and 3 just for laughs, not to be taken seriously as part of the framework. LMAO again. The reason the framework exists is to span the range from cases where the president acts in accord with Congress to those where they are at loggerheads.

It is not a lack of "clarity" that prevents Bush from challenging FISA -- which almost certainly would be analyzed under Category 3 after the AUMF theory was disposed of -- but rather an overwhelming clarity. If Yoo's radical constitutional theory were presented squarely, it would lose 8-1 or 9-0, and both Paul Clement and Jack Goldsmith knew it.

Regarding Hamdan, I think you overstate your case. The Court's opinion was highly divided. Youngstown was referred to in a footnote by Souter--the other two concurring opinions don't cite Youngstown so, in the circumstances, it's difficult to say how much weight to place on that. Thomas also cites Youngstown--in dissent. The other two dissenting Justices, Scalia and Alito, make no reference to Youngstown

Sheesh, I can't keep up. There is simply no end to this guy's misstatement of the law and the facts. (Scalia, BTW, joined Thomas' dissent, which expressly was grounded in the Youngstown framework. It is just that those dissenters, disagreeing with the majority's statutory reading of the AUMF and UCMJ, believed Hamdan to fall in Category 1 within the framework.)

anduril (deliberately?) overlooks Stevens writing for the court in Hamdan, which opinion stated in footnote 23, clearly referring to Jackson's Category 3:

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet &Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

And Justice Kennedy's concurrence stated forthrightly:

The proper framework for assessing whether Executive actions are authorized is the three-part scheme used by Justice Jackson in his opinion in Youngstown Sheet &Tube Co. v. Sawyer, 343 U. S. 579 (1952). [The three categories are then summarized.]

The only justice participating in Hamdan not to join in citing to Jackson in Youngstown was Alito, who confined himself to a narrow and technical dissent. And we know that he would apply the Youngstown framework to FISA, because he told us so in his confirmation hearing.

anduril remains in deep denial about Youngstown. Citations he cannot risibly rationalize away (who cares if Youngstown didn't say "blank check?") he simply pretends not to exist.

The plain truth is that Jackson's Youngstown framework is unanimously accepted as such by the members of the current Supreme Court. It is bedrock gospel, held across the ideological spectrum.

Thanks for the clarification, nunzio.

anduril (still in Youngstown denial),

Ah, yes, the disembodied dicta from In re: Sealed Case. We are all still waiting for Bush to try getting the Supreme Court to rule on that as an actual holding. Waiting, waiting, waiting ...

And, of course, Truong was a pre-FISA case, so it does not address the question of what the president can do in the face of FISA's prohibition. And the Fourth Amendment remains irrelevant to the separation-of-powers question about FISA.

Are you planning to cut and paste all the administration's talking points from 18 months ago? You really can be replaced by a recording.

What is the legal force of a statute that is in whole or in part unconstitutional? What is the Executive's duty as to such a statute? Is it illegitimate to play it out politically rather than defying it to stage a test case? Might it not be the better course for the Executive to avoid a showdown in the interests of fulfilling his constitutional duties--if the Executive deems that the proper time for a challenge is not at hand? After all, the reality is that all three branches are political players.

Good question. The president does not have the final word on constitutionality; nor does Congress; the judiciary does. There was a case called Marbury v Madison that established that a couple of centuries ago. This role for the judiciary is also mainstream, conservative gospel on the Supreme Court.

BTW, only the first two branches are supposed to be "political players."

There actually is an excellent opinion on the books at OLC on very questions you raise: PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES

In a nutshell, the opinion generarlly affirms the president's power not to enforce a statute he deems unconstitutional -- but counsels this in the context of a deference to the courts, recommending that he facilitate judicial review with a test case. It even goes so far as to say that the president should enforce a statute he thinks is unconstitutional if he expects the Supreme Court to disagree with his own opinion.

Bush, obviously afraid to submit the core constitutional issue to the courts for fear of an 8-1 or 9-0 smackdown, has done the opposite: He hides from judicial review of the constitutional merits at all costs, effectively adopting the legal strategy of a fugitive.

[Just an Observer:] BTW, only the first two branches are supposed to be "political players."

Earth to Just an Observer, Earth to Just an Observer...

[Just an Observer:] There actually is an excellent opinion on the books at OLC on very questions you raise: PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES

And what is the legal force of an OLC opinion? Is it greater or less than its political force? Jack Goldsmith knows about that.

For the rest, I'll simply note that you're still avoiding the substance of my remarks.

anduril,

If there was any "substance" to you remarks that I have not engaged, I cannot imagine what it is.

Meanwhile, I note that you have abandoned your original, unsupported assertions of fact about presidents refusing to accept FISA as constitutional, and shifted ground continually. It was all I could do to keep up with these shotgunned, cut-and-pasted talking points to rebut your many misstatements of law and fact.

So good night. Interested readers -- there cannot be many -- can form their own opinions about whether your comments contained gems of "substance" unrebutted. I will sleep soundly without worrying about that.

anduril,

Oh, I see now that you consider your most recent vague remarks about Youngstown to have contained the mysterious "substance." You really should flag attempts at "substance" more clearly, so the rest of us can distinguish it from your other BS.

Yes, the Youngstown framework is not the end of the analysis, but the beginning. (That's why it is called a framework.) If that is the extent of your "substance," we can stop there. Applying the framework does not mean the executive always wins or always loses. The ultimate analysis depends on what happens within the framework.

Since you never really engaged the Youngstown framework beyond this obvious wisdom, I was still addressing your original whopper: "Regarding Youngstown, Justice Jackson's concurring opinion, in which no other Justices joined, is of questionable value as precedent." You obviously still needed an education in the many significant citations it has received in subsequent cases, notably including landmark cases in the war on terror. Then, after you misstated those citations, I was still correcting the factual record to clean up your, uh, let's charitably call them errors of omission.

So since it turns out that Youngstown has been cited so ubiquitously, despite your misstatements of the cases, you now shift ground and claim that it barely matters! LMAO.

The only "substance" that I can see you mentioning within the Youngstown framework is that the theory of AUMF-repeals-FISA might mean the president would prevail. I readily conceded that possibility far above -- if the statutory AUMF theory is accepted by the courts, that would place the case in Youngstown Category 1. Great! Let's go to court and settle that issue. Oops, the administration avoids testing the merits of that one, too.

Whether the AUMF does or does not authorize X depends on what X is, and the other statutes that govern X. It turns out, for examaple, from the Supreme Court's rulings that the AUMF did authorize battlefield detention (Hamdi) but did not authorize military commissions (Hamdan).

Does it authorize warrantless surveillance otherwise prohibited by FISA? I think some conservatives on the court would strain hard to interpret the statutes that way, as they did in Hamdan, but I doubt that a majority would reach such a holding. In terms of handicapping votes, this one might be a closer loss for the administration, but a loss nevertheless.

As I explained in a comment far above -- a bit of substance you completely ignored -- the AUMF statutory issue is absolutely a different matter from your original assertion that FISA is unconstitutional. That question would only be reached if the AUMF theory fails and the Youngstown posture is analyzed in Category 3.

If that question is reached -- as a related separation-of-powers question was reached in Hamdi as a constitutional matter, distinct from the AUMF -- the administration surely would lose overwhelmingly. In Hamdi, it lost that question 8-1. Only Thomas agreed with the adminstration's claim that the courts must defer absolutely, and his dissent said they should defer to the "political departments of the government, Executive and Legislative."

The FISA take was not enough to get a conviction. They could have searched the house after the arrest, so why were they prolonging the investigation and endangering the materials in the house--Ames could have given them the slip, as he did on many occasions, and delivered the high value documents. Besides, you're simply wrong.

No, I'm not. By the time of the house search, the CIA and FBI had already discovered nearly 200 documents in Ames' possession that he was not authorized to have, as well as typewriter ribbons recording other documents that he had prepared for the Russians. The investigation did not rely exclusively on electronic surveillance before the house search. Physical searches of Ames' workplace and trash, as well as physical tails, background checks, financial records, and testimony of his co-workers all pointed in the same direction as the wiretap evidence leading up to the house search.

As to why the delay in arresting Ames, it is common practice for the FBI to put off arresting an espionage suspect long after they have collected sufficient criminal evidence, in order to uncover as much of the suspect's activities and as many of his contacts as possible -- for national security reasons, not to further a criminal prosecution. The FBI didn't arrest Ames until he was about to leave for Moscow and the risks became greater than the rewards of continuing to watch his operation.

MacGuffin:

[anduril:]The FISA take was not enough to get a conviction. They could have searched the house after the arrest, so why were they prolonging the investigation and endangering the materials in the house--Ames could have given them the slip, as he did on many occasions, and delivered the high value documents. Besides, you're simply wrong.


[MacGuffin:]No, I'm not. By the time of the house search, the CIA and FBI had already discovered nearly 200 documents in Ames' possession that he was not authorized to have, as well as typewriter ribbons recording other documents that he had prepared for the Russians. The investigation did not rely exclusively on electronic surveillance before the house search. Physical searches of Ames' workplace and trash, as well as physical tails, background checks, financial records, and testimony of his co-workers all pointed in the same direction as the wiretap evidence leading up to the house search.

As to why the delay in arresting Ames, it is common practice for the FBI to put off arresting an espionage suspect long after they have collected sufficient criminal evidence, in order to uncover as much of the suspect's activities and as many of his contacts as possible -- for national security reasons, not to further a criminal prosecution. The FBI didn't arrest Ames until he was about to leave for Moscow and the risks became greater than the rewards of continuing to watch his operation.

MacGuffin, what you're now saying doesn't contradict my statement that the FISA was not enough. I'm well aware that there was other evidence, including the extraordinary surveillances during Ames' trips abroad, which was highly probative. But you're quite mistaken regarding the FBI's tactics, their reasons for delaying the arrest. The FBI is very much aware that the KGB (at that time) often has exfiltration plans in place for top agents, and has put them into operation. The Edward Lee Howard escape to the USSR in 1985--while under active FBI surveillance to prevent escape while agents tried to assemble a case--was still raw in their memories by the time of the Ames case. Plus, they would know that old-fashioned spy "networks" were not at work in this case--rather, they would know that the odds were that Ames was a singleton, a mole. Yes, they would be seeking through surveillance to identify Soviets (especially illegals) who might be servicing Ames.

Now, because this was an interesting case, let's go over the facts. First, the FBI's thumbnail version:

FBI History

Following analytical reviews and receipt of information about Ames's unexplained wealth, the FBI opened an investigation in May, 1993.

FBI Special Agents and Investigative Specialists conducted intensive physical and electronic surveillance of Ames during a ten-month investigation. Searches of Ames's residence revealed documents and other information linking Ames to the Russian foreign intelligence service. On October 13, 1993, Investigative Specialists observed a chalk mark Ames made on a mailbox confirming to the Russians his intention to meet them in Bogota, Colombia. On November 1st, Special Agents observed him and, separately, his Russian handler in Bogota. When Ames planned foreign travel, including a trip to Moscow, as part of his official duties, a plan to arrest him was approved.

This account correctly identifies the significance of the residential searches: they connected Ames to the KGB--essential evidence for a successful prosecution. However, let's take a look at a more detailed timeline of the investigation. I will intersperse my comments in brackets. I skip the runup to the actual investigation, which details how Ames became a suspect:

Ames Timeline

At that point, in October 1992, the joint unit was relatively certain that Ames was the spy they were looking for, although others remained under suspicion. In January 1993, the joint unit began briefing the FBI and other appropriate officials on its work, and began to contemplate turning the investigation over to the FBI.

In March 1993, the joint unit issued its final report, known as the PLAYACTOR/SKYLIGHT report. The report did not describe the specific information developed about Ames or any other CIA employee on the list of possible suspects, but it did provide a compelling analysis of the 1985 1986 compromises and of the subsequent efforts by the KGB to divert attention away from the presence of a "mole" within the CIA. It stated that as many as 30 CIA and FBI Soviet operations had been compromised or discontinued under unusual or suspicious circumstances between 1985 and 1986. The report reached several conclusions which were to prove very close to the mark:

We are virtually certain there was a KGB penetration of CIA who followed closely on the heels of CIA defector Edward Lee Howard. This subject probably began to disclose CIA/FBI operations to the KGB by July 1985, if not earlier. The KGB then proceeded to roll up our agents throughout 1985-86.

The subject was assigned to CIAHQ in 1985 and was in a position to compromise Soviet operations virtually 'across the board.' The subject was employed in SE Division or one of a few slots in CI staff.

(The PLAYACTOR/SKYLIGHT report included, as an appendix, a list of approximately 40 people with access. Ames was on the list.)

The FBI Opens an Intensive Counterintelligence Investigation of Ames:

On the basis of the work done by the joint task force, the FBI put an investigative team together in March 1993, and tasked the team members to acquaint themselves with the facts.

This effort led the FBI to begin an intensive investigation of Ames. Under applicable Attorney General guidelines, this meant that the FBI was able to seek authority under pertinent laws and Justice Department guidelines to employ a full array of investigative techniques against Ames. For instance, the Foreign Intelligence Surveillance Court issued orders authorizing electronic surveillance of Ames's office and residence. Other surveillance techniques used against Ames included mail cover (i.e., deriving information from envelopes addressed to and from Ames), and a clandestine monitor installed in his car to track his movements.

On June 25, 1993, the FBI conducted a search of Ames's office at the CIA. Approximately 144 classified documents were located in his work area, most of which did not relate to his official duties. [The first big step, but his possession of docs not related to his official duties doesn't begin to establish intent to pass docs to a foreign power with intent to harm the US and help the foreign power.]

According to the CIA IG report, by mid 1993, significant information had been obtained from the relevant financial institutions, which further implicated Ames. The completed financial analysis showed that Ames had a total income of $1,326,310 that could not be accounted for through salary and other known sources. [Again, suggestive of criminal activity, but no link to espionage: Ames and Rosario could have been drug dealers through her Columbian connection.]

On September 15,1993, a search of Ames's trash disclosed a torn note in Ames's handwriting which appeared to relate to a clandestine meeting planned for Bogota, Colombia on October 1, 1993. [Suggestive, but not necessarily of espionage--once again, a clandestine meet in Columbia could well relate to drug trafficking. Bear in mind that Ames at some point in his career did work on drug related matters.]

On September 29, 1993, in a telephone conversation with his wife, Ames said that "my visit was canceled." His wife responded, "Does that mean you retrieve something?" Ames replied, "Yeah," presumably referring to new KGB instructions setting up a an alternate meeting. The following day Ames canceled his airline reservation to Bogota.

On October 6, 1993, a search of Ames's trash turned up a typewriter or printer ribbon which contained two documents which Ames appeared to have prepared in 1992. Among other things, these documents discussed CIA personnel, access to classified information, and classified operational matters. [Now we're getting much warmer. Drugs can't be totally ruled out as a source of his funds, but the trash came from the house and there just might be evidence in house that would be even more probative. But still no intent, no indication of delivery.]

On October 9, 1993, FBI agents conducted a search of Ames's residence in Arlington. Among other things, this search yielded (1) a typewriter ribbon which contained a note Ames had written to his KGB contact regarding a meeting in Caracas, Venezuela in October 1992; (2) a computer document which identified a mailbox at 37th and R Streets in Washington, D.C. as a signal site, and (3) a series of computer documents regarding Ames's relationship with the KGB. These computer documents included information on clandestine communications, classified CIA operations, classified CIA human assets, and information regarding the payments previously made to Ames. [OK, now the FBI is in the house and they come up with evidence of espionage tradecraft (the signal site) for transfers of docs and a connection to a foreign power--essential elements of proof for an espionage conviction. This is a quantum jump of progress in the investigation, and it comes from looking for evidence--not recovering documents. In fact, they would most likely have photographed this evidence and left in place, so as not to tip Ames to the investigation. But where is the stash of docs that MacGuffin says they were looking for?]

On October 12, 1993, Ames spoke to his wife about leaving for work early the next morning to "put a signal down...confirming that I am coming." FBI agents followed Ames to the mailbox, and, while not observing him making a mark, they found a horizontal mark on the side of the mailbox at 7:00 a.m. the same day. Later in the afternoon, the chalk mark had been erased. [Excellent--it's Ames, not Rosaria making the signals. Wonderful showing of intent for a jury, capture it on video.]

Later in October, Ames and his wife had several discussions picked up by the wiretap on his telephone related to his trip to Bogota. In particular, his wife was concerned that border officials would detect the large sums of money he traveled with. [This evidence is indeterminate in itself, but in combination with the evidence from the residential search is probative of intent--and also implicates his wife strongly as a conscious player.]

On November 1, 1993, Ames traveled to Bogota, Colombia to meet his KGB contact. Transcripts of telephone conversations between Ames and his wife established that Ames and his handler had, in fact, managed to meet twice while he was there; on the evening of November 1 and the afternoon of November 2. [Notice: the FBI--no doubt in consultation with DoJ attorneys--wanted actual physical evidence, not just the overhears. This is an indication of just how difficult espionage convictions are: they are delaying, more than for any other reason, because they want to catch him redhanded.]

From November 1993 until the time of his arrest, Ames was kept under virtually constant physical surveillance by FBI officers anticipating yet another passage of classified information. The investigation to date, while producing clear evidence of Ames's espionage activities, had not succeeded in producing tangible evidence of meetings between Ames and his KGB handlers. But when the FBI, working with the CIA, learned in early 1994 that Ames, as part of his CIA duties, was scheduled to attend a conference in Moscow in late February, the FBI believed they could not postpone his travel yet again without alerting him, and, thus could wait no longer to make the arrest.

On the morning of February 21, 1994, FBI agents arrested Ames in his car outside his residence. His wife, Rosario, was arrested minutes later in their residence.

So, as you can see, I was completely correct. The residential searches turned up crucial evidence, and were conducted for the express purpose of gathering evidence for a criminal case.

Interesting. Goldsmith believes, apparently, that if Congress forbade the President to defend the country against terrorists his hands would be tied. Where would we be without legal scholars like that? So, Congress trumps the Constitution and the Commander in Chief turns out to be, in effect, a creature of the Legislative Branch.

It appears that Goldsmith's views may actually shred the hallowed Youngstown framework--that "bedrock gospel, held across the ideological spectrum." This guy is clearly a dangerous extremist--makes Yoo look like a shrinking violet.

ROFLMAO

Try to spin the facts as you like, anduril, but there is nothing in the above account that indicates conclusively whether the FBI did or did not have sufficient evidence to convict Ames of espionage before the house search, whether they believed they had enough or not, or whether they intended to present in a criminal court the evidence collected in the Ames' house. There is an interesting Fourth Amendment question as to whether any or all of the evidence collected after the house search is inadmissible fruit of a poisoned tree. The tree was definitely not poisoned as far as its production of foreign intelligence information, and the evidence gathered in the house likely could not be used in criminal court, but whether evidence that the FBI was led to by the foreign intelligence evidence collected in the house would also have been inadmissible is an open question.

However, I am completely correct that the CIA and FBI had collected a great deal of evidence indicating Ames' espionage before the house search. I am completely correct that it is entirely conceivable that the house search was conducted for its foreign intelligence value regardless of whether any evidence gathered could be used in criminal court. And as the last two sentences you chose to highlight indicate, I am completely correct that the FBI, after they already had "clear evidence of Ames's espionage activities," chose to delay arresting Ames in order to pursue the foreign intelligence ends of Ames' KGB handlers.

You are simply wrong in asserting with certainty that the FBI searched Ames' house to collect criminal evidence. You are simply wrong in claiming that the FBI delayed arresting Ames because they did not have sufficient evidence to charge him with espionage.

anduril, you're hopeless; but for anyone else who's interested I'll spell this out in even more detail: Even though you can spin up an account that is consistent with the SSCI synopsis of the Ames case, that synoptic account in no way conclusively indicates whether the FBI did or did not have sufficient evidence to convict Ames of espionage before the house search, whether they believed they had enough or not, or whether they intended to present in a criminal court the evidence collected in the Ames' house. The SSCI account simply does not indicate the exact legal nature and extent of the evidence in the Ames case, nor does it indicate the FBI's exact intent in searching Ames' house. That was never the aim of the SSCI report.

Just because you can come up with a consistent tale that supports your claim that the Ames' house search was intended to be part of a criminal investigation and prosecution, that doesn't me that your tale is what actually took place. All we know for certain about the nature of the Ames' house evidence with regard to criminal prosecution is that that evidence never was actually used in any criminal prosecution.

You are simply wrong in asserting with certainty that the FBI searched Ames' house to collect criminal evidence. You are simply wrong in claiming that the FBI delayed arresting Ames because they did not have sufficient evidence to charge him with espionage. You don't know any of that for a fact, and the available facts are entirely consistent with another interpretation.

The relevance is easily explained. The Clinton administration claimed, in the wake of the Ames case (an investigation predicated upon a violation of criminal law which, however, impacted national security), that the Executive has an inherent Constitutional authority to order warrantless searches for national security reasons. Congress disagreed and amended FISA to include national security searches. Proponents of FISA, including Professor Goldsmith, argue that the Legislative Branch has an inherent authority to strip the Executive Branch of inherent Constitutional authority by means of statutory enactments. Judge Silberman, in In re Sealed Case, tried to finesse this disagreement by interpreting FISA as actually enhancing the President's authority. He adopted that interpretation because, he stated, he took it for granted that the Legislative cannot by statutory enactment strip the Executive of inherent Constitutional authority. These controversies are at the heart of Professor Goldsmith's new book. These are issues of basic (i.e., constitutional) law that are being played out both in the courts as well as in the purely political arena. The courts, of course, are also political players.

[MacGuffin:]The Ames investigation was first and foremost a national security/foreign intelligence matter that secondarily impacted on a criminal case. What mattered most was discovering exactly what was leaked, how, and to whom so that the leaks could be stopped and the mole denied the opportunity to ever again compromise U.S. national security. If a criminal case against Ames had to be compromised, potentially leaving Ames fired from the CIA but not imprisoned, in order to satisfy the primary goals, then the FBI and the Clinton administration would have taken that trade-off in a heartbeat. Your nsistance on viewing the Ames investigation as principally about building a criminal prosecution is absurd and upside-down.

Since you've placed so much emphasis on the information that the FBI gathered against Ames using FISA wiretaps, the actual provisions of FISA may interest you:

1801
(b) “Agent of a foreign power” means—
(1) any person other than a United States person, who— [etc., etc.]
(2) any person who—
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
[(C) (D) (E) don't apply to Ames.]

Here's what this means. FISA defines two groups of people who can be considered agents of a foreign power. Group #1 is explicitly restricted to non-US Persons--so it doesn't apply to Ames. Group #2 includes "any person," i.e., it could be a U.S. Person--that means this is the section that would apply to Ames. If Ames was to be considered an agent of a foreign power he had to be treated as such according to the definition in 1801(b)(2). Furthermore, to be considered an agent of a foreign power he had to have been engaging in activities that involved or might have involved a violation of the criminal statutes of the United States.

Why is this important? Here's why:

1805. Issuance of order
(a) Necessary findings
Upon an application made pursuant to section 1804 of this title, the judge shall enter an ex parte order as requested or as modified approving the electronic surveillance if he finds that—
(3) on the basis of the facts submitted by the applicant there is probable cause to believe that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power...

In other words, since Ames was not himself a "foreign power," in order to initiate the FISA coverage of Ames the FBI had to show probable cause that Ames was an "agent of a foreign power." And to show that Ames was an agent of a foreign power the FBI had to show that his activities "involve or may involve a violation of the criminal statutes of the United States."

That's right: no putative criminal violation, no FISA on a US Person. There is no provision in FISA for gathering "foreign intelligence" against a US Person unless there is probable cause to show that that person is engaged in potential criminal activity.

As a practical matter, the FBI had to go to a FISC judge and say, judge, we've initiated a criminal investigation of a violation of the Espionage Act by Aldrich Ames. Here's our probable cause; we'd like you to issues thus and such type of an order. This was a criminal investigation, start to finish. What kind of "national security/foreign intelligence" investigation could have been conducted without the FISA order that they got? Not much. They could have followed him forever without ever catching him in the act and would have gathered zero foreign intelligence information in the process.

Since you've placed so much emphasis on the information that the FBI gathered against Ames using FISA wiretaps, the actual provisions of FISA may interest you:

Sigh, understanding of FISA seems not to be conjoined to your interest in it.

No, I have not "placed so much emphasis on the information that the FBI gathered against Ames using FISA wiretaps." Furthermore, a showing of probable cause of criminal activity before initiating a wiretap to gather foreign intelligence information does not make the investigation in which that wiretap plays a role a "criminal investigation, start to finish." It doesn't even make the wiretap itself necessarily part of a criminal investigation: It is entirely possible that the foreign intelligence information targeted and gathered in the course of the wiretap is not intended to and does not in fact contribute anything to the furtherance of any criminal case. But most relevantly, such a finding of probable cause before obtaining a FISA court order implies exactly nothing about the physical search of the Ames' residence that was conducted entirely outside of FISA.

It doesn't even make the wiretap itself necessarily part of a criminal investigation: It is entirely possible that the foreign intelligence information targeted and gathered in the course of the wiretap is not intended to and does not in fact contribute anything to the furtherance of any criminal case.

I'm going to guarantee you that DoJ's OIPR will not process a FISA application of this sort--one in which the wiretap is obtained under FISA without any intention of pursuing a criminal case. That will be one of their first concerns, to determine that there is in fact a criminal case that is being pursued in good faith. You're talking about matters that you don't know anything about.

MacGuffin, I belief we've been arguing at cross purposes, and for that I take the blame, since I'm pretty sure I was/am in a better position to have figured that out sooner.

Basically, your understanding of FISA was the state of the law--although not of practice--prior to the Patriot Act revision of FISA. This was due to OIPR's interpretation of the "purpose" clause, an interpretation which they pushed (in my belief) in an intra-DoJ turf war with the the Criminal Division. As Judge Silberman noted: "the Justice Department, at some point during the 1980s, began to read the statute as limiting the Department’s ability to obtain FISA orders if it intended to prosecute the targeted agents–even for foreign intelligence crimes." (All quotes from In re Sealed Case) This was a gradual process, however, as can be seen from Judge Silberman's vague reference to a ten-year period of time. Both the FBI and the Criminal Division strenuously opposed OIPR's interpretation.

What is certain is that after 1995 DoJ adopted guidelines that settled the argument in favor of OIPR. This was the origin of the famous "wall" that was a major factor in the failure of the CIA and the FBI to prevent 9/11. Again, the FBI and Criminal Division (including Mary Jo White's famouse memo) continued to strenuously oppose this interpretation, but things got to the point that the entire FISA process virtually ground to a halt: as you may recall, a FISA application was even denied in the Wen Ho Lee case.

Why should this have been so? This is where I was coming from, and the problem was pointed out by Judge Silberman. In order to get a FISA order on a US Person the FBI has to show that the subject is or may be involved in criminal activity. Having demonstrated criminal activity, it became virtually impossible for the FBI to claim in good faith that the "purpose" of the FISA was to gather "foreign intelligence" rather than to prosecute the subject. Anyone who has had some experience with law enforcement in general and the FBI in particular knows that the FBI always focuses on prosecution--indeed, that prosecutorial focus has been a major criticism of the FBI by writers such as Judge Posner, who argue that national security matters should be taken from the FBI and given to a new "MI-5 style" agency.

Now, with regard to Ames, it's important to remember that that case went down in 1994--just before the new DoJ guidelines were established (whether there was a connection between Ames and the new guidelines I don't know, but I wouldn't be surprised). What was the focus of the Ames investigation? Unquestionably the focus was to develop a prosecutable--in fact, an open and shut--case against Ames. Why that was so is easy enough to see. Not only was Ames a traitor, but he was (with an unwitting assist from Hanssen, as it turned out) responsible for the executions of several Russians who were working for the US, including at least two whom the FBI itself had recruited in Washington. The FBI and CIA wanted payback for the murder of their agents. In the circumstances, the entire national security apparatus of the US would have regarded anything short of a conviction of Ames on espionage charges to be a total failure. And yet, only a few years later things had gotten to the point that the DoJ was denying a FISA application on Wen Ho Lee.

It was this state of affairs that the Patriot Act was intended to remedy, by inserting the "significant purpose" in FISA. Thereafter, if "foreign intelligence" gathering was "a significant purpose," the FISA order should be granted. This was in opposition to the previous language which had read: "the purpose." Moreover, the Patriot expressly added language to the effect that the fact that law enforcement was consulting with prosecutors should not preclude issuance of a FISA order--foreign intelligence gathering might be "a" significant purpose, but that did not preclude other significant purposes, such as prosecution. Yet in spite of the clear Congressional intent in this matter (clearly seen in the legislative history) OIPR and the FISC attempted to thwart these amendments--a situation I referred to elsewhere with regard to improper lowering of separation between the branches--and this led to In re Sealed Case. Anyway, the practical result is that any time a FISA order is issued with regard to a US Person you can count on it that prosecution is very much in the minds of the FBI--simply because they had to demonstrate probable cause of criminal activity to get the order in the first place. And it's no longer necessary to choose one overriding purpose for the order, since there can now be several significant purposes.