Some of Glenn Reynolds/Instapundit's readers claim that there is a contradiction between his claim that Jack Goldsmith's new book on the War On Terror criticizes excessive legal constraints on presidential wartime authority, and Jonathan Adler and Orin Kerr's characterization of Goldsmith as criticizing the Bush Administration's assertions of virtually unlimited presidential power in time of war.
In reality, there is no contradiction here. Glenn is right to point out that Goldsmith believes that pre-9/11 law constrained presidential wartime authority too much, and that some of the Bush Administration's efforts were undercut by those constraints. But Orin and Jonathan are also correct in pointing out that Goldsmith disapproved of the Bush Administration's response to the problem. Instead of working with Congress and the courts to change overly restrictive laws (Goldsmith's preferred strategy), the Administration chose to claim that they already had the power to do almost anything the president might want to, so long as it has even a remote connection to waging the war. As Goldsmith argues, this approach is bad law because the Constitution does in fact allow congressional and judicial restriction of the president's warmaking powers, and in some cases even requires it (for my take on these issues in a debate with John Yoo and others, see here).
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. As Goldsmith himself puts it, “They [the Bush Administration] embraced this vision because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.”
In sum, Goldsmith believes that the War on Terror has been hobbled by excessive legal constraints, but also argues that the Bush Administration's response to the problem was both legally dubious and politically counterproductive. In my view, he is largely correct on both counts.
Related Posts (on one page):
- More from Jack Goldsmith:
- Resolving the Goldsmith Contradiction:
- The Conscience of Jack Goldsmith:
The Goldsmith conclusion, seen from a slightly broader perspective, is just another outcome of our current hyperpartisan times.
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.
This is ridiculous. Bush most certainly DID work with Congress early on, and Congress passed the USA Patriot Act, which was passed with overwhelming majorities in both houses. And did Bush's working with Congress prevent a backlash? Absolutely not - the Democrats demogogued the Patriot Act to death. In fact, I'd argue that the Democrats' horrific demagoguery proved the Administration's point - working with Congress is an absolute mistake.
For those who recall a similar one sided and intentionally misleading media spin on Ron Suskind's "One Percent Solution," all of this will be very familiar.
Believe anything the NYT has to say about the Bush Administration at the risk of looking foolish a couple days later.
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?
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.
Well I guess this is true if you believe the UCMJ constrains your hands too much and you want to torture people and suspend habeas in violation of the constitution. Otherwise, Goldsmith's argument is just that of someone who thinks the Constitution and our entire system of laws is just an inconvenience meant to be cast aside at upon the flimsiest pretense.
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.
David Sucher retains the ability to be shocked by the shocking; I had actually missed that little gem.
One sees dictatorship advocated so casually these days.
Oh, and Bart: we know what those "briefings" consisted of. Whom are you trying to kid?
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.
Slate quotes from the book (yes, another grasp at the elephant):
[Addington] had unshakable beliefs about executive power, about the correctness of his legal positions, about the nature and severity of the terrorist threat, and about what was necessary to defeat the threat. He thought that others had less information than the White House did about the threat, and were motivated by concerns other than what would best protect the American people.
Remember our discussion a few threads back about deference to the executive on matters of national security? Addington convinced himself, as people in his position are wont to do, that he knew best because he knew most.
Now, by way of counterexample, click through to this story about the Iraqi minister, Sabri, who became an informant and told us the goods on Saddam's WMD's -- namely, that there weren't any.
On the eve of Sabri’s appearance at the United Nations in September 2002 to present Saddam’s case, the officer in charge of this operation met in New York with a “cutout” who had debriefed Sabri for the CIA. Then the officer flew to Washington, where he met with CIA deputy director John McLaughlin, who was “excited” about the report. Nonetheless, McLaughlin expressed his reservations. He said that Sabri’s information was at odds with “our best source.” That source was code-named “Curveball,” later exposed as a fabricator, con man and former Iraqi taxi driver posing as a chemical engineer.
The next day, Sept. 18, Tenet briefed Bush on Sabri. “Tenet told me he briefed the president personally,” said one of the former CIA officers. According to Tenet, Bush’s response was to call the information “the same old thing.” Bush insisted it was simply what Saddam wanted him to think. “The president had no interest in the intelligence,” said the CIA officer. The other officer said, “Bush didn’t give a fuck about the intelligence. He had his mind made up.”
Superior knowledge, indeed. Never forget the grim truth behind Asquith's snark re: the Imperial War Council: "They kept 3 sets of casualty figures, one with which to deceive Parliament, one with which to deceive the Cabinet, and the third with which to deceive themselves."
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.
Best analogy of the week.
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.
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.
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.
Hand in the cookie jar?
The TSP briefings started when the TSP started.
The FISA reform request started immediately after the FISC reneged on a prior agreement to grant warrants to the TSP.
The intent to conduct trials of foreign unlawful enemy combatants by military commissions was well known and not secret.
The DTA and MCA were reactions to and corrections of aggressive court decisions extending habeas corpus for the first time in history to foreign enemy combatants challenging their wartime detention and holding that Congress somehow meant to extend military courts martials to foreign enemy combatants.
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.
In other words, we will agree to "work with you" only if you agree to every single detail of everything that we ask for, without debate. If you are unwilling to agree to our proposals without critical analysis it is in our best interest to avoid dealing with you at all and simply govern by fiat. Obviously all of those asking for things like judicial oversight of NSLs, for example, are partisan marketing people who are sacrificing the safety of Americans in order to win elections. How could any serious thinking person disagree with any word in the Patriot act? Thinking people don't disagree. Thinking people do what they are told by us. We know whats good for you.
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.
No fair bringing in facts, Steve.
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.
Best,
Ben
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.
Call me an administration stooge, but I really have to question the reliability of anyone who directly compares the current Administration to the Khmer Rouge.
How did the Democrats demagogue the Patriot Act to death? Congress passed it.
I don't support everything the Bush administration has done, but the oppostion has been completely feckless. 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. Halt funding Iraq, overturn the Detainee Treatment Act, grant habeas to the entire world. There's lots of possibilities. Do something other than continually bitch about big bad Bush.
Of course, if they actually did something, then they might be held to account for those decisions. I suppose its safer politically to just keep throwing bombs at the President...
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.
Just so you know, FISA did not apply to physical searches prior to 1995, when Clinton signed an amendment into law. The Aldrich Ames search occurred in 1993.
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?
If you purport to provide "an important consideration to add to the mix," it would be better if you told the truth.
Please provide citations, after the passage of FISA in 1978, from the Carter, Reagan, Bush 41 and Clinton administrations where those presidents expressly "refused to concede the constitutionality of FISA." I don't believe there are any.
Nor do I believe that any president before Bush 43 ever violated FISA.
As for the Aldrich Ames search, that occurred before FISA was amended to bring such physical searches into its scope, an amendment supported by the Clinton administration.
If the current administration wants to be the first to challenge the constitutionality of FISA, let it do so in court. But Bush's lawyers avoid judicial consideration of that very question, because they know they would lose overwhelmingly in the Supreme Court.
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.
About as close as saying that people who oppose social programs don't care about the poor is to the conclusion that people who disagree with social programs must be thrown in the Gulag.
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.
allmostly supported the Bush Adminstration positions. Youngstown, Keith, Truong, Re-Sealed Case all provided the Adminstration solid ground for its positions.However...
The Ames case nevertheless makes my point. The Clinton administration argued that its warrantless searches did not violate existing search and seizure law because (they argued) the Executive has inherent power to conduct warrantless national security searches. This is the position that all administrations have so far refused to concede, most recently in the run-up to the amendments to the FISA law. The administration essentially asked--nay, strongarmed--Congress to amend FISA while refusing to concede its constitutionality. Just as the Clinton administration supported amendments to FISA but refused to concede its constitutionality. This isn't about Dem v. GOP or liberal v. conservative. Edward Levi, under Carter, took the same position: we support FISA but we won't concede that it's constitutional in its entirety.
Because it's a useful summary, here is an article by Byron York on this history:
In a little-remembered debate from 1994, the Clinton administration argued that the president has "inherent authority" to order physical searches — including break-ins at the homes of U.S. citizens — for foreign intelligence purposes without any warrant or permission from any outside body. 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.
"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," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."
"It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."
Executive Order 12333, signed by Ronald Reagan in 1981, provides for such warrantless searches directed against "a foreign power or an agent of a foreign power."
Reporting the day after Gorelick's testimony, the Washington Post's headline — on page A-19 — read, "Administration Backing No-Warrant Spy Searches." The story began, "The Clinton administration, in a little-noticed facet of the debate on intelligence reforms, is seeking congressional authorization for U.S. spies to continue conducting clandestine searches at foreign embassies in Washington and other cities without a federal court order. The administration's quiet lobbying effort is aimed at modifying draft legislation that would require U.S. counterintelligence officials to get a court order before secretly snooping inside the homes or workplaces of suspected foreign agents or foreign powers."
In her testimony, Gorelick made clear that the president believed he had the power to order warrantless searches for the purpose of gathering intelligence, even if there was no reason to believe that the search might uncover evidence of a crime. "Intelligence is often long range, its exact targets are more difficult to identify, and its focus is less precise," Gorelick said. "Information gathering for policy making and prevention, rather than prosecution, are its primary focus."
The debate over warrantless searches came up after the case of CIA spy Aldrich Ames. Authorities had searched Ames's house without a warrant, and the Justice Department feared that Ames's lawyers would challenge the search in court. Meanwhile, Congress began discussing a measure under which the authorization for break-ins would be handled like the authorization for wiretaps, that is, by the FISA court. In her testimony, Gorelick signaled that the administration would go along a congressional decision to place such searches under the court — if, as she testified, it "does not restrict the president's ability to collect foreign intelligence necessary for the national security." In the end, Congress placed the searches under the FISA court, but the Clinton administration did not back down from its contention that the president had the authority to act when necessary.
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.
I don't care that Bush would veto the legislation at this point in time. There's going to be another election soon, lay down a marker. Passing legislation (even if vetoed) actually takes a stand and seizes the initiative. It shows the people where the Democrats intend to go which enables us (the voters) to make better informed decisions.
"Why does the left persist on questioning peoples' patriotism?"
*Blink* Was this person awake during the period from 9/12/2001 to the present, especially during the 2002 midterm elections and the 2004 presidential elections?
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.
No one disputes that presidents possess inherent authority to conduct foreign intelligence surveillance. Gorelick's testimony -- which actually supported the then-proposed amendment to FISA covering physical searches -- is consistent with that.
But "inherent" does not mean exclusive or indefeasible. It just means that the authority in question is not explicit in the Constitution or expressly authorized by Congress.
But Congress still can regulate the application of that authority, which in this field it did for the first time when it enacted FISA. There is a huge difference between what the president can do when Congress has been silent, and what he can do after Congress has prohibited something, in this case warrantless surveillance. Read Youngstown.
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?
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.
Perhaps you've made my point! Such an assumption about people who oppose social programs is just as wrongheaded as the assumption that those who criticize the Patriot Act don't care about national security! However, I don't think the situations are directly comparable. Generally speaking, we don't throw people in gulags for not caring about the poor. I'm not aware of any thing like that in history, with the possible exception of the French revolution. The "gulag" is where we throw people who undermine national security. At least, thats usually what gulags are used for.
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.)
I disagree strongly with you. The left is constantly comparing the right with Nazis, Facists, and all manner of American enemies. In just this thread we saw the current administration compared to the Khmer Rouge. This thread also brought up the Patriot Act which is laid at the feet of the right. Google shows 125,000 hits for ""patriot act" unamerican". Perhaps you can clarify how these don't qualify as the left questioning the right's patriotism?
I don't dispute that there are cases on the right as well (although some of the time what occurs is better described as "question[ing] the priorities and wisdom" of the left), but much of the left has been making its hay over last half dozen years through no end of ad hominems. Can you deny this?
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?
Even more specifically, the matter of the warrantless searches had to do with suspected violations of the Espionage Act, a criminal violation. The prosecutors/investigators could have gone to any available Federal Magistrate Judge in the relevant district to apply for the warrant(s), same as any other criminal case--with the proviso that they might have been required to find a Judge with the proper clearances to handle classified information.
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.
I would propose the repression of the Kulaks during the Great Purge would stand as another example. There are other events similar in focus (if not scope) to the Great Purge.
You're sure of that? I mean, you know for a fact that the FBI didn't already feel confident that it had enough on Ames to convict him for espionage, and that the search was instead intended to recover as much foreign intelligence as possible, even if it couldn't be used in a criminal prosecution -- perhaps because what the FBI was searching for was of a sensitive enough nature that they didn't want such classified matters addressed in open court? If the search weren't part of a criminal investigation, which court would have had jurisdiction to warrant the foreign intelligence search?
Gee, and I thought that was my point, too--for reasons given.
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:
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:
And again, in a very interesting discussion of AG Edward Levi's suggestions for a FISA type regime:
So, there's the Carter administration, too. I'm not going to bother with Reagan and Bush 1.
Finally:
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.
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.
The repression of the Kulaks was not caused by differences in wealth, but by the communists' desire to a abolish all private property, whether among the wealthy or not. Most of the kulaks were actually fairly poor.
Might want to use that Sword to solve your troll problem.
That's not the standard view.
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.
A little learning *is* a dangerous thing, isn't it?
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.
LOL!!
So this is an interrogation? Let's see:
Q &A #1:
Q &A #2:
My response was:
Perhaps that sounded brusque, so I'll spell it out. The Espionage Act is 18 USC 793. I won't paste it in, but if you read it you'll see why the FBI desperately wanted to search Ames' house: no matter what the take from the electronic FISA, the Espionage Act requires proof of the taking of documents and their delivery "with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation." That is not always an easy matter to prove--especially in the absence of actual documents. Any number of explanations can be made for what the Government might claim to be incriminating statements captured by the FISA, but a cache of sensitive documents at the suspect's house goes a long way toward proving the violation, since such documents would normally not be allowed to leave government premises. The government, in such circumstances, would NEVER feel confident that it had enough evidence until they had actual documents in their hot little hands. And since the only reason to show the suspect's actual possession of such documents would be for use in prosecuting the suspect, yes, I'm sure they entered his house SEVERAL TIMES because they were looking for evidence.
As to whether the searches might not have been part of a criminal investigation--THEY WERE. Get over it. I know this. The importance of the electronic FISA was that it confirmed to the FBI that they were on the right track and not barking up the wrong tree. Ames made suggestive statements on the phone, but he didn't make a confession and, even if he had the prosecutors would still need prove that the confession was true. In an Espionage case that means that you better be able to produce identifiable documents plus show the requisite intent. I can imagine situations in which the documents might be indirectly proven, but IMO that would be very dicey. This is why the FBI, even after 1) recovering from a Russian informant KGB materials with Hanssen's fingerprints on them and 2) a KGB recording of a contact with Hanssen, still waited to catch Hanssen in an actual delivery of real documents. They did this because, due to the nature of the Espionage Act, short of such circumstances they could never be sure that they had enough evidence. Prosecutors do not want to go to trial on espionage cases--they want guilty pleas. Why? Try to wrap your mind around these two names and the lessons every prosecutor has learned from them: Wen Ho Lee and Katrina Leung. Then reread what I just wrote about the need for documents in an espionage case.
Everything you say about the Ames case is quite irrelevant to the separation-of-powers question that underlies the constitutionality of FISA. You have already conceded that FISA did not purport to regulate such a physical search. And no other statute forbade it. After FISA was amended to require warrants for physical searches, then there was such as statute (expressly supported by the Clinton administration).
Repeating yourself at greater length does not make the irrelevant facts about the search relevant.
JaO, you are patience personified. I hope I grow up to be like you!
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.
Of course, this is all an historical tangent, since JaO's is correct in his observation as to relevance.
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,
In other words, they were looking for a safe resolution of a specific case, not to make new law:
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:
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:
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 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.
I also stated that warrantless searches such as in the Ames case arguably violated a long line of cases decided by the Supreme Court, and that that was a factor in the eagerness of the Government to accept a plea rather than go for the max. You don't address that. 4th amendment jurisprudence is largely based on constitutional interpretation, not statutory.
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.
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.
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.
Just for the record, I note that you have entirely given up on producing documentary support for your original, sweeping and falacious statement. So there is no need to argue that factual point any longer; you simply cannot marshall such facts because they don't exist.
Now, you shift ground to argue instead that the "political nature" of things trumps the law. I agree that there are political factors keeping congressional leaders from challenging Bush more forthrightly, and the Gang of 8 briefings are part of that. Not being a Democrat, I am entirely unmotivated to give Nancy Pelosi, et al, a pass for their complicity in lawbreaking.
If these political pressures prevail, Congress may well give Bush what he is seeking -- a legislative fix providing what he cannot possibly win in court. That is precisely my point about the administration's strategy. Bush, while evading judicial review, may get Congress to amend or repeal FISA retroactively. That is the proper result of such a political process in the political branches -- duly enacted legislation.
However, such political factors did not erase the legal force of statutes in place at the time FISA was violated. There is nothing in the Constitution that empowers eight legislators, meeting in secret with administration officials, to suspend the operation of a statute.
As for your continued spin on Gorelick, and Clinton's signature on the final bill, your opinion obviously is not amenable to facts. You persist in imagining, without evidence, that either Clinton or his subordinate silently asserted a power to violate FISA. Believe what you want; the rest of us can read the record and find no such imaginary intent.
On the Ames case, having failed to demonstrate any relevance to the separation-of-powers question underlying FISA's constitutionality, you shift ground again to "4th amendment jurisprudence." Irrelevant again. FISA's constitutionality has nothing to do with, and does not depend on, the Fourth Amendment.
Finally, In a bizarre effort to ignore your own factual error about Levi, you bizarrely and irrelevantly say, "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." LMAO.
More pertinently, in that signing statement, Carter declared:
No president until Bush 43 has ever backed down from that flat declaration of what FISA "requires" for "all" such surveillance, and no one else has ever violated FISA. Those are facts, which you simply cannot dispute. Enjoy your imaginary universe.
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.
Just an Observer is right that Clinton administration's warrantless entry into Ames home didn't violate FISA.
It also would not violate the 4th Amendment if it were for Foreign Intelligence gathering. It would violate the 4th Amendment if it were not, regardless of whether it was ultimately used in a criminal prosecution.
So the questions are how do we know why they entered Ames' residence and why should we trust the explanation of the FBI, DOJ, or President Clinton?
I don't believe the Clinton administration and I don't believe the Bush administration. I don't trust the President, the Congress, or the Courts. But that's just me.
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:
And Justice Kennedy's concurrence stated forthrightly:
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.
That's simply dishonest. I never said any such thing and you know it. The point of my initial post was that an important factor to be considered in the Terror Presidency debate is inter-branch disagreement over constitutional interpretation. How is this to be resolved? To think that such matters will or are resolved in court is simply naive.
That's a very expansive view of the legislative branch's role.
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.
Silently? I cited Gorelick's words.
Ames and the 4th amendment are not actually irrelevant to FISA. The Clinton administration argued that the Executive has inherent authority to conduct warrantless searches. That is a constitutional claim. While it may have been foolhardy to push that claim, there was certainly warrant for doing so in the case law. That case law was reviewed in In re Sealed Case:
In spite of the Truong case Congress chose to amend FISA to cover searches--and I won't claim that Congress was wrong in this regard. I'm open to argument that the Truong court was mistaken. The larger point that Judge Silberman is making is that if the President does in fact have an inherent authority of some sort, that authority cannot be taken away by statute. It may be regulated in various ways, but it cannot be taken away. The relevance of the 4th amendment in all this is the question whether national security searches, even in criminal cases, are inherently reasonable if supported by some bare minimum of reasonability. If that be the case, then FISA runs afoul of the 4th amendment. That's why Silberman chooses to view FISA as an enhancement of the President's inherent authority rather than as a contradiction of it.
Fine. I'll grant you that Carter is an idiot.
If Justice Jackson meant for his analysis to become an established "framework" he was probably disappointed that no other Justices joined in his concurrence, right? Or was he a prophet? My reading of the recent cases is that citations of Youngstown do not treat the tripartite framework as doctrine, but as a handy starting point for argumentation.
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.
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.
I doubt Bush is worried about a 'smackdown' in these cases. If Bush goes to court with a national security issue where it's Bush vs congress, I have little doubt the verdict will be 5-4. Which way I cannot say; it will depend on how Kennedy decides to go. But to believe that the conservative side of the court wouldn't back Bush in this scenario seems silly to me.
At the end of the day, the court is human. There are just some cases where you pull something out of your penumbra and call it good enough :)
Earth to Just an Observer, Earth to Just an Observer...
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.
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.
Earth to Just an Observer, Earth to Just an Observer...
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."
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.
Although Goldsmith agrees with much of the opinion, he finds the conclusion gratuitous and ill-founded. He told Gross:
Goldsmith, of course, is following precisely the distinction that Justice Jackson made in his bedrock Youngstown concurrence. That is the core of the constitutional difference between Yoo, who fundamentally dismisses Jackson's Youngstown framework, and mainstream conservatives like Goldsmith who embrace it.
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
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
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.
The warrantless Ames searches may not have required FISC approval at that time, but they were searches conducted in the course of a criminal investigation for the purpose of discovering evidence to be used for prosecutive purposes. I'm open to argument as to whether that was or should have been legal, but there were obviously a fair number of people who thought that 4th amendment jurisprudence had something to say about that--no matter whether FISA was silent.
To the contrary, it was Yoo's assertion that the president, when functioning as Commander in Chief, has a monopoly on war powers that shreds the Youngstown framework, in particular the analytical situation Justice Jackson described as Category 3.
Goldsmith's statement, by contrast, was entirely consistent with Jackson's clear statement that Congress may even impinge to some extent on command functions. Jackson's view on that point has been embraced by the judicial mainstream, including leading conservatives such as John Roberts.
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.
Possession on work premises of documents not related to his official duties was at most an administrative violation--it is in no way, shape or form proof of espionage. It does show laxity with regard to rules or even, perhaps, a thumb one's nose attitude toward authority.
Having an unknown source of income totalling $1.3 over an unknown number of years is suspicious and calls for explanation, but is not probative of espionage.
Again, this was suggestive and certainly a certain amount of smoke is developing, but it is not probative. In the Hanssen the FBI did a trash cover of a CIA officer named Brian Kelly, who was their prime suspect for several years. The trash cover yielded a map of a large park/forested area which had notations indicating distances and times between various points in that area--and area which contained bridges and culverts which, from past experience, the FBI knew were the types of spots that the KGB favored for priming and clearing dead drops to retrieve documents and make payments to agents. Moreover, it turned out that these were some of the precise sites that Hanssen and the KGB were in fact using. Further, it was well known that in such espionage operations the KGB ran tightly timed movements designed to discover counter surveillance.
It turned out that the map was Kelly's record of his regular jogging route. However, this map was used as part of the probable cause to deploy the full range of highly intrusive search and surveillance techniques against Kelly.
Once again, this was highly suggestive, and I have no doubt that the FBI was convinced that they were on to the right guy--as they, in fact, were. Nevertheless, to this point they have absolutely no case for espionage: passage of national defense related documents to a foreign power with the intent to harm the US and help the foreign power. This could be a drug operation or something weird but innocent.
Here again we have security violations, but not evidence of espionage. The key point is that Ames threw this material away in his trash rather than delivering it to the KGB. If he thought he was disposing of it as trash it couldn't possibly be espionage. He could have been subjected to administrative sanctions up to and including firing, but all the evidence combined up to this point could not convict him of espionage because there was no proof of delivery of the specified types of documents with the requisite intent.
Finally, having searched the residence, the FBI finds:
1) a note to the KGB identifying Caracas as a meet site--so the FBI knows the trip wasn't for drugs or any other reason;
2) a computer document identifying a signal site--distinctive espionage-related tradecraft; and
3) documents which constituted a virtual confession, detailing Ames' relationship with the KGB, describing tradecraft and identifying the KGB as the source of his unexplained income.
This is, unlike the earlier evidence, far more than circumstantial: it is highly probative of espionage. Which is why the official FBI website states:
But note how cautious the FBI is, even in retrospect. Even at this point they don't say: the searches revealed proof of Ames' espionage--only information linking Ames to the Russian foreign intelligence service. Why the caution? Because there are ways to be linked to a foreign intelligence service in a support capacity, but short of actual espionage: the passage of national defense related documents to a foreign power with the intent to harm the US and help the foreign power.
And so The FBI continues the investigation, deploying extraordinarily sophisticated techniques and huge amounts of resources with the focus on catching Ames in the act of passing documents. They are undoubtedly morally certain that they have a true spy, a mole, but to have the incontrovertible case they want they need to catch him redhanded, just as they later did with Hanssen. (They were unable to do that in the Leung case. They found classified documents in her house--the house of a private citizen--but still could not prove the elements of espionage.) As it turned out, they were unable to develop actual direct proof of Ames meeting with the KGB, but they had to terminate the investigation because they couldn't risk allowing Ames to travel overseas again:
By far the clearest evidence of Ames' espionage activities was the result of the warrantless search of his residence, which turned up the documents that were tantamount to a confession and shed light on every other aspect of his suspicious behavior.
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.
This was true when I said it 36 hours ago, and it is still true. You responded, in effect, that the Ames search still might not have violated the Fourth Amendment. So what? It probably did not violate the Establishment Clause or the Boy Scout Law, either.
As far as we know, neither John Yoo nor Jack Goldsmith ever argued over the Fourth Amendment, which has nothing to do with FISA! That statute is not dependant on, and does not purport to enforce, the Fourth Amendment. No one involved argues that the Fourth makes FISA constitutional or not.
Your blather remains irrelevant to their constitutional argument over separation-of-powers -- the relative powers of Congress and the presidency -- and irrelevant to this thread.
You've spun yourself onto your head.
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:
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:
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.
Congress and Clinton did not disagree. They agreed. Clinton signed the bill. He did not violate FISA or threaten to do so. Similarly, no one claims that the president lacked inherent authority to conduct warrantless surveillance for purposes of foreign intelligence -- not "national security" -- as a separation-of-powers matter. (Whether or not that conflicts with the Fourth Amendment is not settled by the Supreme Court, but that has nothing to do with FISA.)
The big problem with your spin is that you persist in claiming -- falsely -- that "inherent" powers mean the same thing as "exclusive" or "indefeasible" powers. "Inherent" just means without express grant of constitutional or statutory authority. But such powers still can be regulated if Congress chooses to act. As Justice Jackson said in introducing the Youngstown framework, "Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress."
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. ... 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.
From what I have seen, Goldsmith has never argued that Congress can "strip" the executive branch of any inherent authority. Nor has anyone else that I know of. I certainly have not. Rather, Congress can regulate the use of such authority by making rules, even rules that may impinge to some extent on command authority. That is what Jackson said in Youngstown as a general matter, and Yoo rejects that as a general matter. Goldsmith, just as mainstream jurists across the spectrum do, adheres to that Youngstown framework.
In that sense (after correcting for your gross misstatement), this is at the core of the constitutional dispute between Yoo and Goldsmith. The former was willing to disregard Youngstown; the latter was not. We actually have not seen Goldsmith expressly apply that argument to FISA in particular, only to war powers generally, but I think most knowledgeable observers suspect that was his constitutional view of that statute. Note: This still has zero to do with Aldrich Ames.
As for FISA being "played out" in a "purely political arena," it was. Congress passed a law overwhelmingly, after several years of bipartisan negotiation with the executive. President Carter signed it. That, in general, is what the political branches do -- enact legislation or not. Years later, Bush violated the law for the first time, making legalistic excuses but avoiding a test of them in court.
We already know from the sum of your comments that you have a profound disrespect for the judiciary as "political players." That says more about you than about the judiciary. I have huge respect for CJ Roberts, and virtually none for you. So like Goldsmith, I will take Roberts' reverential view of Jackson's Youngstown framework -- including a recognition that Congress can even impinge on CinC command authority -- over the opinion of you, or John Yoo.
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.
From Youngstown:
So, Justice Jackson viewed his own "framework" not as "bedrock gospel" but as "somewhat oversimplified." A future court may well agree with him. Your rhetoric about "reverence" is extreme: in future decisions the Supreme Court will proceed, not in lockstep with Justice Jackson's "somewhat over-simplified" framework but with an eye to the practical consequences. In other words they will proceed, as Justice Jackson suggested, "with caution."
This matter of "caution" is, I think, important. Justice Jackson does not state that in such a situation--that in which a President has taken "measures incompatible with the expressed or implied will of Congress"--the President's claims will be scrutinized strictly. In other words, there is no presumption that one or the other branch is correct--Justice Jackson recognizes that each of these Branches are equal Constitutional players and there views must be given equal weight. Rather, the Court's caution is exercised because "the equilibrium established by our constitutional system."
I do not argue that Congress can not regulate in the area of national security, nor with regard to matters that affect the President's core status as commander in chief. I can accept that these Article II Section 8 powers give ample support for such regulation:
However, in the case of FISA it appears to me that Congress is attempting to exercise not merely proper regulatory authority but is claiming an exclusive right to control these matters (intelligence gathering) that are central to the defense of the our constitutional system, and properly involve core Presidential authority. There comes a point where regulation destroys or strips away a power--a point at which the President is, in his core constitutional authorities, rendered a mere creature of Congress. This, I suggest, attacks the delicate "equilibrium" that Justice Jackson was concerned for; it runs counter to the idea of the branches' "separateness but interdependence, autonomy but reciprocity." I am confident that future Courts will recognize these concerns.
Moreover, the Congress has interjected the courts into areas that involve "decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry." (Chicago and Southern Air Lines). This has made the FISC in some instances a political player to an unacceptable degree--which occasioned the intervention of the FISA Court of Review. The close interaction of DoJ advisors with the FISA judges should be a matter of concern to all who are concerned to maintain the proper degree of separation among the branches.
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.
Whether DoJ will or will not generally pursue a criminal case parallel to the processing a FISA application of this sort is entirely beside my point that the establishment of probable cause of criminal action before obtaining a court order authorizing electronic surveillance for the purpose of gathering foreign intelligence information does not in any way necessitate that the electronic surveillance be any part of a criminal investigation or prosecution. Your assertion of such necessity or certitude is simply not warranted.
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.