pageok
pageok
pageok
FISA Court of Review To Issue Opinion Upholding Protect America Act Surveillance:
The New York Times has the scoop. This is a very interesting development; stay tuned for lots of blogging on the opinion when it is released. Thanks to reader Ross Evans for the link.

Related Posts (on one page):

  1. Some Comments on the FISA Court of Review Decision:
  2. FISA Court of Review To Issue Opinion Upholding Protect America Act Surveillance:
Kazinski:
Even if the report is true, this may not be the last word on the subject. The FISA court, and FISA court of review are applying existing precedent and law. The Supreme Court, as they have in several other GWOT cases, may decide that the law has evolved.
1.15.2009 12:37pm
Bill N:
Does anyone else think something is wrong with an impending decision of THE super-secret, hush-hush, close the doors and cover the windows, [REDACTED], national security [REDACTED] court being leaked to the press?!? If the Supremes and their clerks, etc., can keep quiet until a decision is handed down, shouldn't the same be expected of FISA?
1.15.2009 1:00pm
Ugh (mail):

If the Supremes and their clerks, etc., can keep quiet until a decision is handed down, shouldn't the same be expected of FISA?


Uhhh...the decision was handed down in December, according to the article, which means (presumably) that the parties are aware of it. And, gosh, which one of those parties might have a motive to leak details about the decision?
1.15.2009 1:27pm
Bart (mail):
This appears to be simply a reaffirmation of the Truong line of cases from sister courts of appeal that unanimously held that the 4th Amendment does not require warrants for foreign intelligence gathering.
1.15.2009 1:36pm
Jim Tyre (mail):
The FISCR decision is now online.
1.15.2009 2:01pm
Just an Observer:
A PDF of the redacted opinion can be found here:
1.15.2009 2:12pm
Dilan Esper (mail) (www):
This appears to be simply a reaffirmation of the Truong line of cases from sister courts of appeal that unanimously held that the 4th Amendment does not require warrants for foreign intelligence gathering.

Doubtful. I suspect, rather, that it will hold that there is a strong presumption that where such surveillance is Congressionally authorized (and, perhaps, is subject to significant minimization protocols), it is constitutional.
1.15.2009 2:18pm
Dilan Esper (mail) (www):
And I am right. While the Court cites Truong, it holds that even foreign intelligence gathering is governed by the Fourth Amendment reasonableness analysis, and holds that the minimization protocols (and other aspects of the surveillance) render it reasonable.
1.15.2009 2:24pm
Zaggs (mail):

And I am right. While the Court cites Truong, it holds that even foreign intelligence gathering is governed by the Fourth Amendment reasonableness analysis, and holds that the minimization protocols (and other aspects of the surveillance) render it reasonable.


Not exactly. Bart states that the 4th amend would not apply to foreign intelligence gathering. The FISA court did hold that gathering foreign intel for the purpose of national security against foreign powers did qualify as a special needs exception to the 4th amendment's warrant requirement.
They then seem to back up to explain that not all foreign intelligence gathering would meet the same exemption. But that in this case it did. So if you're trying to save american lives and have a decent idea that someone within the US is helping terrorists, go for it. If on the other hand you have some vague notion that some act might happen some time in the future and maybe this dude could know something about it get a warrant.
At least thats the idea I got.
1.15.2009 4:04pm
Richard Aubrey (mail):
Woops.

What's the best topping for humble pie?

I'll post this before I start the HAHA thing.
1.15.2009 4:13pm
Richard Aubrey (mail):
It was pretty obvious, watching the arguments here and elsewhere that the primary ingredient was BDS. Had Clinton done it--did he?--or if Obama does it, no problema.
1.15.2009 4:34pm
Richard Aubrey (mail):
Crap. What is it with this thing?
Same as with rendition. Clinton started it, Bush ended it. Bush gets the blame.
1.15.2009 4:35pm
Michael B (mail):
Dog bites man; Eric Lichtblau reports with embedded sneers in the NYT. Can Dahlia Lithwick be far behind? Inquiring Incurious minds want to know.
1.15.2009 4:48pm
Occasional Lurker:
Let's be clear about what the opinion actually says about the "foreign intelligence exception," from page 17 of the PDF:

"we hold that a foreign intelligence exception to the Fourth Amendment's warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed at foreign powers or agents of foreign powers reasonably believed to be located outside the United States." (emphasis added)

It's not an exception from the Fourth Amendment itself and it's not for all foreign intelligence gathering for national security purposes; it doesn't cover surveillance directed at non-foreign powers/agents of, or at persons not reasonably believed to be located outside the US.
1.15.2009 5:00pm
Bart (mail):
The FISA Court of Review just published a redacted public opinion affirming a classified FISC ruling that the FISA Amendments Act of 2008 ratifying the Terrorist Surveillance Program (for which Mr. Obama voted as a Senator) did not violate the 4th Amendment.

Specifically, the FISCR held that a foreign intelligence gathering exception to the 4th Amendment warrant requirement exists for surveillance that is in part intended to obtain gather foreign intelligence and targets foreign powers or agents of foreign powers reasonably believed to be located overseas even if a US person may be on the other end of the telecommunication. This is simply an application of the Truong line of Circuit cases and the Supreme Court's special exceptions case to the facts of the TSP in an "as applied" ruling. The ruling does not narrow the broader scope of the Truong precedent extending to foreign intelligence gathering inside the US.

More interestingly, the FISCR held that the TSP was a reasonable search under the 4th Amendment even without individualized findings of probable cause based upon targeting and minimization rules established by statute, executive order and NSA rules.

In commentary very likely intended for the courts considering the lawsuits against the telecoms, the FISCR rejected the petitioners' facial 4th Amendment challenge to the FISA Amendments and TSP based upon a hypothetical "parade of horribles" for which there was no evidence.

The FISCR provided no commentary on the balance of powers issues of whether Congress had the Article I authority to direct and limit the President's CiC power to conduct foreign intelligence through the original FISA. However, this opinion does eliminate the argument that Congress was enforcing the 4th Amendment by enacting FISA.
1.15.2009 6:28pm
Bart (mail):
I assume that the new AG will now prosecute Tamm, Rosen, Lichblau and the NYT for disclosing a perfectly legal top secret intelligence program to al Qaeda.
1.15.2009 6:37pm
OrinKerr:
Bart,

Given that Congress changed the law to make this legal, and that this was a constitutional challenge to a statutory proceeding, I don't know why you are suggesting that this opinion indicates that the program was "perfectly legal" when it was revealed before the law was changed. (Unless you are just a troll.)
1.15.2009 6:44pm
njc (mail):
(Unless you are just a troll.)

Opinions vary over at Balkinization as to Mr. DePalma's status:

1.15.2009 7:33pm
njc (mail):
Bart posting the same comment at Balkinization.
1.15.2009 7:35pm
Jack Black (mail):
Bart,

Given that Congress changed the law to make this legal, and that this was a constitutional challenge to a statutory proceeding, I don't know why you are suggesting that this opinion indicates that the program was "perfectly legal" when it was revealed before the law was changed.


Depends on what you mean by "changed the law". My understanding -- and feel free to correct me -- is that the President had inherent authority to conduct foreign intelligence, FISA circumscribed it, and PAA scaled back FISA, restoring the President's inherent authority to its full scope. In other words, one could easily read the case to hold that the President's inherent authority to conduct foreign intelligence is consistent with the foreign intelligence exception to the Warrant Clause of the Fourth Amendment. It necessarily follows that, as a constitutional matter, the Warrant Clause of the Fourth Amendment cannot bar the President's inherent constitutional authority to conduct (purely) foreign intelligence. That is why hard-line conservatives are rejoicing.
1.15.2009 7:40pm
OrinKerr:
Jack Black: "My understanding -- and feel free to correct me --"

OK: Your understanding is incorrect. The scope of the Fourth Amendment and the scope of permissible legislative interference on the Executive branch are generally understood as two distinct issues. While you think that they "necessarily" are the same, I think you would need to make that argument.
1.15.2009 8:37pm
Michael B (mail):
"It's not an exception from the Fourth Amendment itself and it's not for all foreign intelligence gathering for national security purposes; it doesn't cover surveillance directed at non-foreign powers/agents of, or at persons not reasonably believed to be located outside the US."

And there were never any serious/substantiated charges of domestic surveillance, properly conceived.

Fact remains, aspects of this reflected unchartered territory, a decidedly grey territory between traditional conceptions of enemy combatants vs. law enforcement concerns that would be handled by police agencies, the FBI, etc. With that in mind, the Pres. and others, acting as executives - not legislators - within the executive branch and assuming the responsibilities entailed in that office acted appropriately, within the law and within the purview demanded by the circumstances and unchartered territory.
1.15.2009 9:27pm
Jack Black (mail):
OK: Your understanding is incorrect. The scope of the Fourth Amendment and the scope of permissible legislative interference on the Executive branch are generally understood as two distinct issues. While you think that they "necessarily" are the same, I think you would need to make that argument.

I think they are perfectly coexistent, as proven by this ruling. You are free to disagree, but I do not see any argument on your behalf other than what unknown or anonymous persons "generally underst[an]d".
1.15.2009 9:51pm
Occasional Lurker:
Michael B. wrote:

And there were never any serious/substantiated charges of domestic surveillance, properly conceived.

Not my point. Merely that the FISCR did not, as some seemed to say earlier, hold that all foreign intelligence gathering is exempt from the 4th A's warrant requirement. In any case the opinion is only binding on the FISC..
1.15.2009 10:50pm
Moneyrunner43 (www):
This has to have been one of the stupidest arguments since (probably apocryphal) medieval scholars argued over the number of angels that could dance on the point of a pin.

Computers make it possible to do data mining and can be used to detect patterns which may point to terrorist activity. Great weapon in a war, right? Especially since we have gotten past Henry Stimson's belief that "Gentlemen don't read each other's mail" when he closed the State Department's code breaking office in 1929.

Along come law profs who argue that domestic wiretap laws apply to wartime intelligence gathering. Well, guess what folks, the data mining being done is not like the wiretaps that were used to record Blago's conversations with Team Obama and his confederates in Washington, Springfield and Chicago.

I could, however, be persuaded to change my mind if I could get some assurance from those on Jihad duty that they would only aim their bombs at laws schools. It would tough, but it's a sacrifice I would be willing to make.
1.15.2009 11:12pm
Bart (mail):
OrinKerr:

Given that Congress changed the law to make this legal, and that this was a constitutional challenge to a statutory proceeding, I don't know why you are suggesting that this opinion indicates that the program was "perfectly legal" when it was revealed before the law was changed.

As my preceding analysis discussed, the FISCR did not rule upon whether Congress had the power to enact the original FISA, but rather whether the TSP were constitutional under the 4th Amendment. By finding that warrant-less foreign intelligence gathering does not violate the 4th Amendment, the FISCR decision does close off a claimed source of power for Congress to have enacted FISA.

Article I nowhere grants Congress the power to direct or limit the CiC's foreign intelligence gathering as it attempted to do by enacting FISA. The only viable source of power for Congress to enact FISA was to enforce the 4th Amendment. Indeed, FISA created an alternate court and warrant system as if it were enforcing the 4th Amendment.

The FISCR decision that the 4th Amendment does not require the Executive to obtain a warrant for foreign intelligence gathering pretty much closes off the only reasonable source of power for Congress to enact FISA. In short, the President was acting constitutionally in creating the TSP while Congress acted unconstitutionally back in the 70s when it enacted FISA. It was FISA and not the TSP which was illegal.

Congress did not make the TSP lawful by gutting FISA to ratify the TSP, but rather made FISA lawful by reducing the FISC's role from unconstitutionally requiring the NSA to obtain warrants to conduct foreign intelligence gathering to simply ensuring that the TSP was not abused in a way that violated the 4th Amendment.

The evidence is overwhelming that Tamm, Risen, Lichtblau and the NYT feloniously violated the statutes prohibiting the disclosure of classified information. Their only affirmative defense was that the TSP was illegal and illegal acts could not be legally classified. This defense has vanished. There is no reason why these felons should not be prosecuted for providing aid and comfort to a wartime enemy by disclosing the TSP.
1.15.2009 11:14pm
Michael B (mail):
O.L., agreed. (And in general, I also agree that better tempered and more responsibly grounded concerns are, in principle, warranted.)
1.16.2009 12:01am
Jack Black (mail):
The evidence is overwhelming that Tamm, Risen, Lichtblau and the NYT feloniously violated the statutes prohibiting the disclosure of classified information. Their only affirmative defense was that the TSP was illegal and illegal acts could not be legally classified. This defense has vanished. There is no reason why these felons should not be prosecuted for providing aid and comfort to a wartime enemy by disclosing the TSP.

I don't know about "overwhelming" and I would not say the defense has "vanished" or that it was "affirmative" in the technical legal sense and I usually think Bart is a troll, but I would say he has a point that a prosecution of Tamm might be successful and a prosecution of Lichtblau and Risen might be tenable.
1.16.2009 12:04am
jpe (mail):
That is why hard-line conservatives are rejoicing.

The reading you gave of the procedural history is totally bizarre.
1.16.2009 12:10am
Jack Black (mail):
Jpe,

That might be because I did not discuss the procedural history.
1.16.2009 12:11am
Just an Observer:
A more serious report on the ruling can be found at SCOTUSblog, which speculates that the telecom might appeal it to the Supreme Court under seal.
1.16.2009 12:24am
OrinKerr:
Jack Black,

It seems that I am not the Fourth Amendment expert that you are, so I will defer to your greater wisdom. Sorry to have bothered you.
1.16.2009 12:32am
OrinKerr:
Bart,

Your understanding of how the constitution works is highly unusual. If I understand you correctly, you seem to be thinking that the Fourth Amendment is a potential source of congressional power instead of a limitation on the government. As far as I know, though, no one (other than you, perhaps) is arguing that Congress lacks the Article I power to regulate the U.S. government that Congress itself created. If Congress has no ability to legislate in this area, then the agencies themselves are unconstitutional.
1.16.2009 12:40am
NotMyRealName:
Anyone wanna take a guess at who was the company that appealed the ruling? (My wild guess is Qwest.)
1.16.2009 12:47am
Jack Black (mail):
It seems that I am not the Fourth Amendment expert that you are, so I will defer to your greater wisdom. Sorry to have bothered you.

Of course you are the only Fourth Amendment expert (as far as I know) in this thread. I meant to make a few inoffensive points by trading on the obviousness of your specialized knowledge in the area:

1. You are an expert in the area, but your view appears to diverge from the view promoted by Glen Greenwald on his blog and through him disseminated to numerous left-wing blogs. Greenwald's view is now the prevailing left-wing read of the case (not Lichtblau's reporting) and he is trading off his credibility as a lawyer to push his view.

2. You understand the argument I am making and do not appear find it unreasonable or incomprehensible or bizarre, though it may rest on a generally unrecognized premise that may or may not have been implicit in this ruling.

3. This ruling post-dates any Fourth Amendment scholarship on the issue. The ruling may invalidate such scholarship in part, or that previous scholarship may require further rationalization to absorb it.

Given 1, 2 &3, even if you are precisely correct that the scholarly way to harmonize this ruling with the prevailing academic scholarship would treat my argument as arguable and plausible but requiring further argumentation to meet its burden of persuasion, (a) its validity still cuts against the growing left-wing blogger faith in the Greenwaldian argument that simply dismisses any non-Greenwaldian read of the case as "mythical" and (b) a furture Court -- namely SCOTUS -- may indeed adopt my view of Selya's opinion, thereby deciding the open-question that you say should tip the other way without further substantiation. All I meant to establish is that Bart's view is not as extremist and trollish as it seems and that there are plausible alternatives to the Greenwaldian argument that an expert in the Fourth Amendment might accept as conceptually plausible and persuasive if presented with sufficient argumentation. I have no intention of arguing further, by the way, I just wanted to establish that one could reasonably conclude that Greenwald's totalistic view is myopic, biased and erroneous.

I sincerely apologize if I appeared to question your credentials.
1.16.2009 12:57am
Jack Black (mail):
If I understand you correctly, you seem to be thinking that the Fourth Amendment is a potential source of congressional power instead of a limitation on the government. As far as I know, though, no one (other than you, perhaps) is arguing that Congress lacks the Article I power to regulate the U.S. government that Congress itself created.

I took Bart to mean that Congress cannot create a substitute warranting process that overrides the Fourth Amendment's Warrant Clause via statute, because if it did so, it could likewise replace the Fourth Amendment's reasonableness standard with a higher standard that impaired the Executive and shifted reasonableness calculations from the Judiciary to the Congress. The Fourth Amendment wouldn't serve as a limitation on Congress, then, implicating separation of powers concerns.
1.16.2009 1:03am
OrinKerr:
Jack Black,

I don't generally read Greenwald, so I don't know what he's saying: But if he is trading off his credibility as a lawyer to spread something incorrect, I am quite sure there is nothing I can say that would change his mind or the mind of his readers.
1.16.2009 1:18am
Jack Black (mail):
I don't generally read Greenwald, so I don't know what he's saying: But if he is trading off his credibility as a lawyer to spread something incorrect, I am quite sure there is nothing I can say that would change his mind or the mind of his readers.

Fair enough, Prof. Kerr.
1.16.2009 1:20am
Surveillance Lawyer:
I'm having a very hard time following you guys, despite the fact that I practice in this area of law. The court in this case did not find that all warrantless surveillance conducted by the Executive branch is legal if its for the purpose of foreign intelligence gathering. Quite the opposite -- in finding that the particular warrantless surveillance at issue in the case was legal, it seemed to rely heavily on mostly classified Executive Branch procedures and safeguards built into the certifications and directives required by the PAA, as well as the text of Executive Order 12333, as support for its finding that these things amounted to "serviceable safeguards" such that the surveillance was reasonable under the totality of the circumstances.

In the absence of these safeguards, its doubtful that the court would have reached the same conclusion.

If the TSP was conducted without the safeguards that the executive branch was required to put into place under the PAA, I don't see how the opinion possibly supports the conclusion that such surveillance would also be constitutional.

Put another way, this opinion appears to do nothing to support the idea that the President has inherent power to conduct surveillance for foreign intelligence purposes that need not comport with the reasonableness required by the Fourth Amendment. Or that Congress doesn't have the power to circumscribe the exercise of surveillance. Rather, it suggests that the basics tenets of Fourth Amendment jurisprudence always apply, but that there need not be prior review by the judicial branch where the procedures adopted by the executive branch are sufficient.
1.16.2009 1:33am
Jack Black (mail):
but that there need not be prior review by the judicial branch where the procedures adopted by the executive branch are sufficient.

So the President has inherent (and independent) authority to conduct foreign intelligence gathering that is reasonable.
1.16.2009 1:39am
Kazinski:
Orin,
According to the last decision from the FISA court of review then:

"Given that Congress changed the law to make this legal[er]..."

From re: Sealed Case:

We reiterate that Truong dealt with a pre-FISA surveillance based on the President's constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power. The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable.


Of course technically you are right when you go on to say:

I don't know why you are suggesting that this opinion indicates that the program was "perfectly legal" when it was revealed before the law was changed.


But I don't know of any operative ruling that says it was illegal either. Unless of course you want to cite Judge Taylors "opinion". Now I agree that the President, acting on his own, did not have the authority to compel the unnamed telecommunications provider to co-operate with him, but I hope you are not trying to leave the impression that the President was breaking the law before Congress passed the PAA, assuming voluntary compliance by the telecommunications providers.
1.16.2009 2:13am
Surveillance Lawyer:
No. There's nothing in this opinion at all about any inherent authority to conduct foreign intelligence gathering. The intelligence gathering here was authorized by statute. The court didn't suggest in any way that the President didn't need to follow the provisions of the PAA, or that he could have conducted surveillance beyond that authorized by the PAA. It could have, I suppose, but it doesn't appear to have done so.
1.16.2009 2:14am
OrinKerr:
What Surveillance Lawyer said. Thanks for commenting, SL.
1.16.2009 2:20am
Jack Black (mail):

The court didn't suggest in any way that the President didn't need to follow the provisions of the PAA, or that he could have conducted surveillance beyond that authorized by the PAA.



I think you're ignoring the argument that the PAA is perfectly coextensive with the President's inherent authority to conduct foreign surveillance that was claimed by the Bush administration, and the PAA repealed precisely that portion of FISA that the Bush administration claimed was an unconstitutional infringement on the President's inherent authority to conduct foreign surveillance. It's not greater than or less than, it's equal to.

You can pretend that's not what the PAA is, but that's what it is.
1.16.2009 2:20am
Jack Black (mail):

There's nothing in this opinion at all about any inherent authority to conduct foreign intelligence gathering.


Just to be clear, the above statement is false. One pages 13, 15-16 of the opinion, in the Fourth Amendment analysis section, Judge Selya cites to In re Sealed Case. In In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002) the special court stated "[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."
1.16.2009 2:42am
Alix Cavanaugh (mail):
Jack Black:

A citation to a case for one proposition is not generally taken to be an endorsement of dictum in that case asserting an entirely different proposition.
1.16.2009 6:08am
Richard Aubrey (mail):
Money runner:
I could, however, be persuaded to change my mind if I could get some assurance from those on Jihad duty that they would only aim their bombs at laws schools. It would tough, but it's a sacrifice I would be willing to make.
Fabulous idea. Terrific. I suppose you've noticed that when stupid,hamfisted, repressive, restrictive, confiscatory, liberty-opposing laws are passed, lawyers are always the least affected?

Maybe we should have a probationary period wrt new laws. They apply only to lawyers and elected officials for one year. We'll see how they work out.
1.16.2009 8:50am
Bart (mail):
OrinKerr:

Bart, Your understanding of how the constitution works is highly unusual. If I understand you correctly, you seem to be thinking that the Fourth Amendment is a potential source of congressional power instead of a limitation on the government.

The 4th Amendment requirement for the government to obtain warrants from the judiciary confers an implied power to the judiciary to determine whether such warrants are granted. The N&P Clause grants Congress the power to enact legislation to enable the other branches to exercise their powers. If the 4th Amendment required the NSA to go to the judiciary to obtain a warrant to conduct foreign intelligence gathering, then Congress would have the power to create the FISC to hear and rule on such warrant requests.

As far as I know, though, no one (other than you, perhaps) is arguing that Congress lacks the Article I power to regulate the U.S. government that Congress itself created. If Congress has no ability to legislate in this area, then the agencies themselves are unconstitutional.

There were a number of amicus briefs advancing my contention that Article I does not grant the Congress the power to direct or limit the President's CiC power to conduct foreign intelligence gathering. Indeed, a number of former FISC judges testified to their similar belief before the Senate Judiciary Committee a couple years back.

The N&P Clause is simply an enabling provision allowing Congress to enact legislation to enable it and the other branches to exercise their enumerated powers. The mere fact that Congress used the N&P Clause to create the NSA so the President can exercise his CiC power to direct foreign intelligence gathering does not mean that Congress may assume this presidential command power for itself. If this were so, then Congress would also have the power to order Gen. Petreaus where to deploy his forces in the Middle East and who to attack because it enacted legislation creating those units.

Rather, Article I expressly states that Congress' powers are limited to those enumerated in that Article. Article I does not grant the Congress any operational command power over the military. Article I only permits Congress to form, arm, fund and enact rules to discipline ("regulate") the military, as well as to declare war.
1.16.2009 9:41am
Crust (mail):
OrinKerr:
I don't generally read Greenwald, so I don't know what he's saying: But if he is trading off his credibility as a lawyer to spread something incorrect, I am quite sure there is nothing I can say that would change his mind or the mind of his readers.
As best I can tell, Greenwald's position on the ruling is identical to yours. (His writing style is very different of course, as is his desire to use this to skewer various right-wing blogs for getting it wrong. But those are other matters.)
1.16.2009 10:08am
Alix Cavanaugh (mail) (www):
Bart et al.,

The only extensive attempt that I know of to defend FISA as an exercise of Congressional necessary-and-proper-clause power to enforce the Fourth Amendment is W.R. Huhn, "Congress Has the Power to Enforce the Bill of Rights against the Federal Government, Therefore FISA is Constitutional and the President's Terrorist Surveillance Program is Illegal", 16 Wm. &Mary Bill Rts. L. J. 537 (2007). It's an interesting article, and I recommend it, but I'm ultimately not convinced by the argument. I think the Fourth Amendment issues and the separation-of-powers issues are, and should be kept, completely independent.

For what it's worth, my view is basically the following: I think there are at least six other clauses in Article I that could justify FISA (and are better at it than the necessary-and-proper clause applied to the Fourth Amendment) but the clearest one is the commerce clause. That is, after all, how the Federal Communications Act and a great many other pieces of telecommunications legislation are justified. You may argue that the movement of electrons across borders is not foreign commerce, but that commits you to getting rid of a lot more than FISA.

So the quick and dirty argument to FISA's constitutionality goes as follows: the Constitution is very explicit about foreign commerce power: Congress has all of it and the President has none. There is no obligation at all on Congress to use its commerce clause powers in a manner convenient for the President qua Commander-in-Chief of the armed forces: just as Congress can license trading with the enemy in wartime (and has), it can provide any procedure it wants (consistent with the First and Fourth Amendments, which give citizens rights against the government, not organs of government rights against each other) for government wiretapping. (Or, if it wanted, just ban it entirely.)
1.16.2009 10:52am
Bart (mail):
Alix:

The Commerce Clause has been distorted beyond all recognition, but even the most expansive interpretation of that term does not reach classified foreign intelligence gathering.

How can passive secret surveillance of the telecommunications possibly be considered commerce?

Even assuming that the communications of the agents of foreign powers are themselves commerce, how can passive secret surveillance of which the agents are unaware affect that commerce?
1.16.2009 11:02am
Alix Cavanaugh (mail) (www):
Part of the purpose (and the commercial value) of private communications is that they be kept private. If Congress wants to regulate in such a way as to protect that, that's it's prerogative.

Consider the simple case of the ordinary domestic wiretapping statute: the one that keeps me from listening in on my neighbour's phone calls through non-trespassory means. How is that justified? Interstate commerce.

Foreign commerce is surely as much or even more within Congress's ambit as domestic interstate commerce.
1.16.2009 11:10am
Alix Cavanaugh (mail) (www):
Correction to previous message:

that's it's prerogative ] that's its prerogative

How embarrassing!
1.16.2009 11:12am
Alix Cavanaugh (mail) (www):
Oh, to clarify:

Communications of foreign powers among themselves aren't regulable by Congress under the foreign commerce clause: only those communications which are to or from American persons, or pass through American territory, are. (Just as Congress can't regulate France's decision to ship steel to England, but can regulate an American person or corporation's export of steel to and import of steel from France.)
1.16.2009 11:16am
Bart (mail):
Alix Cavanaugh:

Part of the purpose (and the commercial value) of private communications is that they be kept private. If Congress wants to regulate in such a way as to protect that, that's it's prerogative.

The FISCR just held that agents of foreign powers do not have a privacy right protected by the 4th Amendment. Moreover, Congress itself never claimed that agents of foreign powers enjoyed a privacy right to communicate under statute or common law. There cannot be a commercial value arising from a right when the right itself does not exist.

Consider the simple case of the ordinary domestic wiretapping statute: the one that keeps me from listening in on my neighbour's phone calls through non-trespassory means. How is that justified? Interstate commerce.

You are equating agents of foreign powers with the People protected by the 4th Amendment, statute and common law.
1.16.2009 11:20am
OrinKerr:
Bart,

If I'm not mistaken, it seems your argument at this stage is *really* rooted in a one-way ratchet concerning the Article II power: Congress can empower the Executive by statute, but it cannot limit the Executive by statute. That's very different from what I had understood it to be (but then to be candid I'm not really sure I understand your argument now. )
1.16.2009 12:24pm
OrinKerr:
Crust,

Yikes, that is disturbing news.
1.16.2009 12:25pm
Kazinski:
SL:


No. There's nothing in this opinion at all about any inherent authority to conduct foreign intelligence gathering. The intelligence gathering here was authorized by statute. The court didn't suggest in any way that the President didn't need to follow the provisions of the PAA, or that he could have conducted surveillance beyond that authorized by the PAA. It could have, I suppose, but it doesn't appear to have done so.

Absolutly true. However you could have said almost the opposite just as truthfully:

No. There's nothing in this opinion at all about any inherent authority to conduct foreign intelligence gathering. The intelligence gathering here was authorized by statute. The court didn't suggest in any way that the President needed to follow the provisions of the PAA, or that he couldn't have conducted surveillance beyond that authorized by the PAA. It could have, I suppose, but it doesn't appear to have done so.
1.16.2009 12:52pm
Kazinski:
OK:

If I'm not mistaken, it seems your argument at this stage is *really* rooted in a one-way ratchet concerning the Article II power: Congress can empower the Executive by statute, but it cannot limit the Executive by statute. That's very different from what I had understood it to be (but then to be candid I'm not really sure I understand your argument now. )


Since that is almost exactly what the FISA CR said in re: Sealed Case, I think Bart is on solid ground:

We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power. The question before us is the reverse, does FISA amplify the President's power...
1.16.2009 12:57pm
Bart (mail):
OrinKerr:

If I'm not mistaken, it seems your argument at this stage is *really* rooted in a one-way ratchet concerning the Article II power: Congress can empower the Executive by statute, but it cannot limit the Executive by statute.

Not quite.

The President's powers are derived entirely from Article II and may not be increased or abridged by an act or failure to act by Congress unless Congress in acting pursuant to an concurrent enumerated Article I power. (Ex. Congress may enact the regulations to maintain the good order and discipline of the uniformed services through the UCMJ).

The N&P Clause allows Congress to enact legislation creating the means (i.e. the NSA) for the President to exercise his Article II power to conduct foreign intelligence gathering. Without the NSA, the President still retains his full power to conduct intelligence gathering, but he will not have the NSA to perform that task.

The N&P Clause power allowing Congress to create a means by which the President may exercise his Article II power to conduct foreign intelligence gathering does not include the ability for Congress to assume that Article II power.
1.16.2009 1:02pm
Dilan Esper (mail) (www):
I just have to say that I am enjoying seeing Professor Kerr eviscerate Bart DePalma.
1.16.2009 6:27pm
Just an Observer:
The original NYT story online was somewhat misleading in its analyis of this ruling. Just for the record, to show that the Gray Lady can do better, here is the version that later appeared in print.
1.17.2009 1:46pm
Michael B (mail):
The NYT has indeed edited and, post-publication, redacted material from the original version. Problem is, "doing better," for the NYT, elides the necessity of any indication of errata or, more generally, any indication of what more specifically was changed. For example, I don't recall any of the following being in the original version:

"... But the ruling is still the first by an appeals court that says the Fourth Amendment's requirement for warrants does not apply to the foreign collection of intelligence involving Americans. That finding could have broad implications for United States national security law. [It not only "could have," it positively does have such implications, especially so when gauged against what the NYT and other MSM outlets had intimated, against the Bush administration.]

"The court ruled that eavesdropping on Americans believed to be agents of a foreign power "possesses characteristics that qualify it for such an exception."

"Bruce M. Selya, the chief judge of the review court, wrote in the opinion that "our decision recognizes that where the government has instituted several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts.""

All of that reflects positively - and decidedly so - for the Bush admin. and is in stark contrast to the editorializing cum reporting that took place in the NYT and elsewhere previously.
1.18.2009 4:43pm
Just an Observer:
What I was referring to was the second and third paragraphs of the later NYT article:

The ruling came in a case involving an unidentified company's challenge to 2007 legislation that expanded the president's legal power to conduct wiretapping without warrants for intelligence purposes.

But the ruling, handed down in August 2008 by the Foreign Intelligence Surveillance Court of Review and made public Thursday, did not directly address whether President Bush was within his constitutional powers in ordering domestic wiretapping without warrants, without first getting Congressional approval, after the terrorist attacks of 2001.


That is a correct analysis of the case, but the explanation had been buried in the original NYT version.
1.19.2009 11:21am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.