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Some Comments on the FISA Court of Review Decision:
I was on a plane most of the day, delaying my promised blogging on the new FISA Court of Review case on foreign intelligence surveillance. Here are a few thoughts after reading the opinion.

  1. First, keep in mind that the opinion has only a very slight connection to the legal issues that we debated ad infinitum back in 2005-2006 on the legality of the Terrorist Surveillance Program. As you may recall, the major legal problem with the TSP as put in place in 2001 was statutory, not constitutional: The program appeared to violate the FISA statute. FISA was later amended to allow a modified version of the TSP, however, and the new opinion is a Fourth Amendment challenge to the procedures permitted by the amendment, the 2007 Protect America Act. So this opinion doesn't say anything at all about whether the TSP violated FISA.

  2. From the standpoint of precedent, it's a bit hard to know what to make of the case given that the facts are classified. I spent a lot of time trying to guess what the redacted parts might be, but didn't get very far.

  3. As for pure issues of law, I was struck by the court's careful reasonableness analysis. This was not a blank check by any means, and instead seemed to hold DOJ to a lot of procedures that it follows but that aren't written into the statute (effectively writing them in for the future). Of course, we don't know the details, as they are classified. But the Fourth Amendment was very much in play here: As I said, this was not a blank check.

  4. I was particularly intrigued by the "parting shot" (?) at the end in which the court tasks the Executive branch with a duty to notify the petitioner if what the court describes as "a specific privacy concern" arises. The specific concern might be a specific kind of overcollection problem; perhaps the petitioner was pointing out the possibility of overcollection given the surveilance tools being used. Whatever the specific problem, it's notable that the court didn't dismiss the hypothetical concern entirely: Rather, it ordered the government to disclose any evidence of that in the future if it occurs, which could then lead to a new challenge.

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:
Asher (mail):
This is a lame comment to start the thread off with, but why are dates classified? "Beginning in [redacted text] 2007"... "The FISC's decision was docketed on [redacted text]"..."on [redacted text], the government moved to compel compliance"... "on [redacted text], the petitioner moved for a stay," etc. I could just possibly see what might be sensitive about the dates of the surveillance itself, but the date on which the company moved for a stay?
1.16.2009 2:28am
OrinKerr:
Asher,

That's easy: [redacted text]. That's my understanding, at least.
1.16.2009 2:31am
Amplitudinous Exiguousness Beyond Peradventure:
Asher, the dates are classified because if they weren't, then terrorists would be able to [redacted text].
1.16.2009 2:35am
Jack Black (mail):
But the Fourth Amendment was very much in play here: As I said, this was not a blank check.

I raised this in the other thread, and I hope it is not considered trollish for me to post it here as well, as the discussion may move, but on 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.”

I concur that the decision does not constitute a blank check, but the reality is that the FISC is setting the scope of the President's inherent authority to conduct foreign surveillance. The PAA is perfectly coextensive with what the Bush administration claimed the President's inherent authority was in the absence of the PAA. The FISC has now found that exercise of power to be reasonable so long as the Executive follows its pre-existing procedures. The statute is less than a ratification and only takes precedence by luck of the constitutional avoidance doctrine.

I cannot imagine any court in the absence of the PAA finding unconstitutional an exercise of power demonstrated to have been necessary and completely reasonable. Formalism of such kind has been dead for centuries.
1.16.2009 2:58am
OrinKerr:
Jack,

As we have discussed here many (dozens?) of times, there are two different meanings of "inherent power." An "inherent power" could mean a power that exists absent statutory authorization, or it could mean a power unable to be limited by statute. Today's decision pretty clearly did not speak to the latter.
1.16.2009 3:08am
Jack Black (mail):

An "inherent power" could mean a power that exists absent statutory authorization, or it could mean a power unable to be limited by statute. Today's decision pretty clearly did not speak to the latter.



I made no argument in favor of the latter. The latter question was mooted by the PAA itself, which repealed the arguably unconstitutional section of FISA. I fully agree with your point 1.
1.16.2009 3:12am
poul (mail) (www):
actually, no - the major legal problem was mostly about president supposedly violating the 4th amendment.
1.16.2009 3:14am
Jack Black (mail):
actually, no - the major legal problem was mostly about president supposedly violating the 4th amendment.

Who is this in response to?
1.16.2009 3:17am
OrinKerr:
Jack,

My apologies if I misunderstood you.

Poul,

When you say that was the major legal problem, do you mean to you personally?
1.16.2009 3:18am
Jack Black (mail):

Jack,

My apologies if I misunderstood you.




No problem! Have a good night!
1.16.2009 3:20am
Alix Cavanaugh (mail):
Why do I think that the Bluebook does not have a section on how to cite cases with (partially) classified names?
1.16.2009 5:57am
Rodger Lodger (mail):
The telecom wanted to mount a facial challenge, which the court declines, limiting peititoner to an as applied challenge. I always thought it was the latter challenge that would be easier to prevail upon, because a facial challenge would argue (not talking 1st Amendment, which is a special case) that no plausible application of the statute would be constitutional. Apparently I'm wrong; court seems to agree that to win facial challenge (had such been permitted), petitioner would only have to such some -- some -- plausible instances of unconstitutionality as applied. If anybody wants to straighten me out on this (and save me hours of law review reading), I'd be much obliged, and guarantee them an early Spring.
1.16.2009 7:27am
jpe (mail):
None of the legal analysis was particularly surprising (Mr. Kerr: ya pretty much nailed the analysis way back when when the program was first revealed via the NY Times). What was surprising was the surfeit of folksy metaphors. For a second I thought Dan Rather took a break from election night coverage to draft it.
1.16.2009 9:16am
mls (www):
Professor Kerr- while I agree that the court's decision doesn't speak directly to the question whether the President has inherent authority to violate FISA, wouldn't the court's opinion provide some support for that proposition? For example, “there is a high degree of probability that requiring a warrant would hinder the government’s ability to collect time-sensitive information and, thus, would impede the vital national security interests that are at stake.” If the President has some inherent national security powers that cannot be limited by statute, and if FISA as written would impede "vital national security interests" the President was trying to protect, couldn't one argue that such an application of FISA would be unconstitutional?
1.16.2009 9:39am
Athos (mail):
I just finished reading the court opinion. I was surprised with how reasonable the Court's opinion is. Though, (please correct me if I am wrong) I thought the FISA courts were having a problem with the Attorney General signing off to conduct wiretaps without a Court's approval. (I had read this, but I cannot for the life of me remember where I read it. I am trying to locate it so that I may post it in the future). A
1.16.2009 9:42am
Anderson (mail):
Why do I think that the Bluebook does not have a section on how to cite cases with (partially) classified names?

That's the redacted part of the Bluebook.
1.16.2009 9:42am
Muskrat:
On p. 24, the court says "[t]he petitioner suggests that, by placing discretion entirely in the hands of the Executive Branch without prior judicial involvement, the procedures cede to that branch overly broad power that invites abuse. but this is little more than a lament about the risk that government officials will not operate i good faith That sort of risk exists when when a warrant is required...a presumption of regularity traditionally attaches to the obtaining of a warrant .... Here - where an exception affords relief from the warrant requirement - common sense suggests that we import the same presumption."

I find that troubling. The whole point of a warrant requirement is to put the decision on searches in the hands of a detached and neutral figure, precisely because the Executive cannot be trusted to safeguard citizen's rights without that oversight. Removal of that protection should be grounds for heightened concern and scrutiny, not complacency. The Court is in effect saying "Who needs oversight? If you can trust a system that has checks and balances built in, surely you can trust it when those checks and balances are removed, right?" Well, no.

The court's reasoning implies that the warrant requirement serves no purpose, and that its removal is no big deal. Shouldn't the attitude be that the warrant requirement IS a big deal, that it can be removed under exceptional circumstances, but that the over-riding justification for it remains, and needs to be addressed, or at least kept in mind and weighed in the balance, even where it cannot be applied?

Isn't pretty much the entire Fourth Amendment "a lament about the risk that government officials will not operate in good faith"? Wasn't that risk exactly what the founders were trying to avoid?
1.16.2009 9:55am
Oren:

I just finished reading the court opinion. I was surprised with how reasonable the Court's opinion is.

I second that notion, with the caveat that I hope that the actual program works in the manner that the government claims.

IMO, there are two functions of judicial overview: law and fact. The court very persuasively argues the former but it delves very little into the latter.
1.16.2009 10:10am
Anderson (mail):
Isn't pretty much the entire Fourth Amendment "a lament about the risk that government officials will not operate in good faith"? Wasn't that risk exactly what the founders were trying to avoid?

That is why we should see Justice Scalia penning the opinion reversing the FISA appeals court's decision.

Odds, anyone?
1.16.2009 10:14am
Anderson (mail):
Oh, wait, there weren't any telephones in 1789.
1.16.2009 10:15am
Just an Observer:
Jack Black: "The latter question [inherent executive power not regulable by statute] was mooted by the PAA itself, which repealed the arguably unconstitutional section of FISA."

I think it is more complex than that. The PAA did not "repeal" the exclusivity provision of FISA, but carved out a certain class of international communications from its scope. If the telecom had cooperated voluntarily, I believe, under PAA it would have been possible for the president to ignore FISA altogether on the basis of his own finding that the communications fit that carved-out class. Then the president would have been acting purely on his own inherent authority. (At least that was my reading of the PAA when it passed.)

However, that clearly was not what happened in this case. The telecom did not cooperate voluntarily. The government invoked the process established by the PAA statute and issued a statutorily authorized "directive" to the telecom. The process for such a directive was not generated pursuant to some inherent power, but pursuant to the provisions of that statute.

The telecom challenged that process on Fourth Amendment grounds, but the court upheld the statute as applied. The opinion rejected that analysis of the Fourth's warrant requirement, and did make the following significant holding:


For these reasons, 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 against foreign powers reasonably believed to be locate outside the United States.


But the court also went on to review the process that the government followed -- specifically pursuant to the PAA statute -- and found that the Fourth's reasonableness standard had not been violated:


Thus, the question here reduces to whether the PAA, as applied through the directives, constitutes a sufficiently reasonable excercise of govermental power to satisfy the Fourth Amendment.


Judge Selya's opinion upheld the Protect America Act as applied, and the issues before his court simply do not touch on the separatation-of-powers issue you raise. Yes, the opinion does cite to Sealed Case extensively on the Fourth Amendment issues -- but never to the fragmentary dicta from Sealed Case that you quote above relating to inherent executive power under FISA. So that verbiage, nothing more than a form of arguendo to begin with, remains fragmentary dicta, unrelated to anything here.

Far from being about executive power, this case is about the constitutionality, under the Fourth Amendment, of an act of Congress as applied. The opinion says so expressly.
1.16.2009 10:30am
Surveillance Lawyer:
The most troubling part of the opinion to me is exactly the dismissal of the value of a review of the executive branch by the judicial branch. Just because a formal warrant requirement is not imposed, does not mean the the jurisprudence of the warrant clause, especially particularity, shouldn't still be looked to as a measure of reasonableness. This opinion backs away both from the close reasonableness analysis employed in Sealed Case, and from the Supreme Court jurisprudence which has always at least acknowledged the danger of an "unchecked" executive branch. If you study the seminal Supreme Court decision in Berger v. New York from 1967, it wasn't that the executive branch did anything wrong in that case - in fact it was noted that the executive branch was more circumspect than perhaps it needed to be -- but it was the fact that no neutral and detached magistrate had reviewed its actions.
1.16.2009 10:38am
Guest3000:
Isn't it interesting that none of the Judges on the panel are active judges (Judge Selya took senior status quite a while ago)? My experience in the regular courts of appeals has been that almost never happens.
1.16.2009 10:41am
MJH21 (mail):
I think that most of the posts that have voiced their concern with the opinion are doing so because they have forgotten how many exceptions there are to the warrant requirement of the 4th Amendment.

It seems logical that because 1) this isn't really about criminal law and 2) courts have recognized exceptions to the warrant requirement in purely criminal law contexts for reasons far less substantial than national security, that this exception is on strong legal footing.

That’s the whole point: a warrant is not required because this is an area that is not criminal as much as national security related. Thus, its exempted from the warrant requirement – just like a Terry-frisk, the automobile exception, search incident to arrest, exigent circumstances, ect. – are exceptions to the warrant requirement. It doesn’t place the executive branch’s actions beyond judicial review, it just says they don’t need a warrant first.

Nothing new under the sun.
1.16.2009 11:08am
Dave N (mail):
Guest 3000,

I suspect that is quite deliberate. They are also all Senior Judges on different circuits.
1.16.2009 11:17am
Athos (mail):
Guest 3000: How are they not "active" Judges? I would assume that since they serve on a federal court (secret or not) that would give them an active status.

Oren:
I second that notion, with the caveat that I hope that the actual program works in the manner that the government claims.

IMO, there are two functions of judicial overview: law and fact. The court very persuasively argues the former but it delves very little into the latter.


Well, I don't think we'll ever know how it really works until we glance at the New York Times. Also, you're dead on with the "judicial overview" note. I wonder what the chances of success are if someone were to file a FOIA pertaining to this case?
1.16.2009 11:18am
paul lukasiak (mail):
But the Fourth Amendment was very much in play here: As I said, this was not a blank check.
_
it sure reads that way to me--or at least, it reads like they are sending the checks to the printer.

The court carves out a non-existent "national security exception" to the first amendment, and its reasoning is highly suspect. It relies upon the existence of "special needs" exceptions to the warrant clause of the fourth, but the nature of the 'special needs' are separate and distinct from those found in this case.

Two of the 'special needs' cases involve drug testing -- in both cases, the individual in question has the option of not taking the test, although they would lose other privileges (being on a school sports team, working for a railroad.) The third example cited is allowing police to frisk suspects for their own safety -- a perfectly reasonable exception because of the immediacy of a potential threat should a suspect be armed. In all three cases, the person who is subject to the 'special needs' exception is aware of what is happening.

None of these factors apply in the new "special needs" exception carved out by the court. The person who is being spied on is not aware of surveillance, there is no way for the person to opt out of the surveillance, and there is no reason to believe that we're looking at the kind of immediacy of a threat that police face when apprehending a suspect.
_
IMHO, this special needs language was completely unnecessary, and leave a wide open door for even worse violations of the fourth amendment.
_
But even more disturbing is the failure of the court to acknowledge the "primary purpose for the surveillance" argument. Instead, it found that national security meet only the "significant purpose" need to spy without a warrant. This opens up a huge can of worms that needed be opened -- it allows for warrantless surveillance for investigation of criminal acts as long as some kind of "national security" argument can be tacked onto it.
_
While the ruling appears to be restricted to "foreign powers and agents of foreign powers". and the latter means "non-Americans", this is not much help. Insofar as one suspects that the purpose of this surveillance was to spy on communications between the "object" and American citizens (this wouldn't be an issue if it was foreigner-to-foreigner communications), its clear that what we're looking at is the intention violation of the privacy of American citizens without their knowledge and consent -- with a very strong possibility that the primary reason for the surveillance is to catch those citizens in a criminal act.
_
The only bright spot is that the law in question has been repealed -- but given the way that this country panics and passes bad laws as a result, the threat of significant violations of personal privacy rights of Americans remains.
1.16.2009 11:23am
poul (mail) (www):
When you say that was the major legal problem, do you mean to you personally?


no, i mean the vast majority of people who expressed their objections to the program, talked about "bush shredding the constitution", not some obscure law cheerfully violated by every president.
1.16.2009 11:47am
Just an Observer:
I just noticed what I think is a significant element of the holding in the case that appears to go beyond the rigor required by the PAA itself. The holding says (and I apologize for my errors in typing the same quote in my earlier comments above):

For these reasons, 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 against foreign powers or agents of foreign powers reasonably believed to be located outside the United States. [boldface emphasis added]


The specific phrases "foreign powers" or "agents of foreign powers" do not occur in the language of the PAA, although they mirror language of FISA itself. PAA only required a finding that the surveillance be directed against "a person" or "persons" reasonably believed to be outside the United States. That generality was one criticism of the statute advanced by critics, including me.

But the court holding expressly limits itself to a more rigorous standard closer to that employed in the FISA statute (but absent a judicial warrant).
1.16.2009 12:03pm
Anderson (mail):
because they have forgotten how many exceptions there are to the warrant requirement of the 4th Amendment

In all fairness to us, the courts discover new exceptions every day.

It's starting to resemble the Cantor Set.
1.16.2009 12:23pm
Charlie (Colorado) (mail):
Okay, IANAL but I am an intelligence guy; the reason the specific dates are redacted is because in the opinion of the person making the edits, the dates are related to some event the Opposition knows about. If those dates were known, that connection might give the Opposition information about what we know and how we know it.

Consider, for example, if you know you were talking to Alice on April 1 2007, and further knew that Alice talked to Bob on April 1 as well. Assume, further, that you also know Alice and Bob were arrested on April 15. Then if you know that a FISA case was processed on 30 March, you might infer that you were likely being listened to.

(Also, just by the way: I'm sure someone in this bunch is now going to say "oh, that's stupid, you could never really do that." So, just as a warning: I don't care. That is the way it's done. This is why real intel work is so much less interesting than 007.)
1.16.2009 12:38pm
Gilbert (mail):
There were two things I found significant about the decision:

1. The use of the special needs exception instead of exigent circumstances or the boarder exceptions. Exigent circumstances (which the court mentions briefly) would be appropriate, but not for an established, perpetual, system of surveillance. More importantly however, the boarder exception would not permit the surveillance of people merely reasonably believed to be outside the country. Even the addition of the good faith exception wouldn't get you there because that only applies to good faith reliance on a warrant.

2. I think the court is wrong, to the degree of abusing its discretion, by suggesting (even assuming it used the correct standard when it held that the standard was the degree to which the procedures mirrored normal warrant procedure) that a probable cause review by the executive branch is in any way functionally or qualitatively equivalent to a probable cause review performed by an independent branch -- the independence of the branch performing the review is the whole point.
1.16.2009 12:45pm
Athos (mail):
To add on what you said Gilbert, the Court says, "it is worth noting that those procedures include provisions designed to prevent errors. [redacted text] Furthermore, a PAA provision codified at 50 U.S.C. § 1850b(d) requires the AG and the DNI to assess compliance with those procedures and to report to Congress semi-annually." (p. 26). Nothing the government can come up with is a better safeguard that what has already been grounded in the U.S. Constitution. Oh, and I wonder, when the Court said "foreign persons" or "agents," did they mean foreign government officials/citizens? Because so far, it has been my long understand that the U.S. Constitution only applied to U.S. citizens, with the exception of tourists coming onto U.S. soil and in Boumediene v. Bush.
1.16.2009 1:00pm
Connecticut Lawyer (mail):
Just an Observer: Suppose (1) there was no FISA or PAA and (2) the Government had conducted on its own a surveillance program identical to the one at issue here. Is there any doubt that this court would uphold that progam as constitutional? It's clear that no warrant would be required, whether or not a statute authorized the program. Is there anything in the opinion that limits the finding of reasonableness to the fact that Congress happened to authorize a program? I don't think so but I'm open to reasoned argument.
1.16.2009 1:17pm
Jack Black (mail):

Just an Observer: I think it is more complex than that[and share the left-wing blogger Glenn Greenwald view of the case].

Connecticut Lawyer: Suppose (1) there was no FISA or PAA and (2) the Government had conducted on its own a surveillance program identical to the one at issue here. Is there any doubt that this court would uphold that progam as constitutional? It's clear that no warrant would be required, whether or not a statute authorized the program. Is there anything in the opinion that limits the finding of reasonableness to the fact that Congress happened to authorize a program? I don't think so but I'm open to reasoned argument.


Rather than dealing in-depth with JaO's distortions and assumption-laden, tendentious analysis, I'll simply say that I agree with Connecticut Lawyer. I have already stated my position explicitly, and it is valid.
1.16.2009 1:55pm
Jack Black (mail):
But the court holding expressly limits itself to a more rigorous standard closer to that employed in the FISA statute (but absent a judicial warrant).

As should be quite obvious, the Executive Branch's inherent authority is at its apex when dealing with foreign agents on foreign soil. The lack of the warrant requirement as a constitutional matter is the whole point.
1.16.2009 2:01pm
Jack Black (mail):
This would appear to put two Circuits on board with not applying the Warrant Clause extraterritorially.
1.16.2009 2:08pm
Just an Observer:
Connecticut Lawyer: "Just an Observer: Suppose (1) there was no FISA or PAA and (2) the Government had conducted on its own a surveillance program identical to the one at issue here. Is there any doubt that this court would uphold that progam as constitutional?"

Well, there is no certainty based on this case, because the opinion and the government's own arguments about the key issue of reasonableness concerned the "matrix" of a "panoply" of both statutory and executive safeguards:

The government rejoins that the PAA, as applied here, constitutes reasonable governmental action. It emphasizes both the protections spelled out in the PAA itself and those mandated under the certifications and directives. This matrix of safeguards comprises at least five components: targeting procedures, minimization procedures, a procedure to ensure that a significant purpose of the surveillance is to obtain foreign intelligence information, procedures incorporated through Executive Order 12333 § 2.5, and [redacted text] procedures [redacted text] outlined in an affidavit supporting the certifications.

The record supports the government. Notwithstanding the parade of horribles trotted out by the petitioner, it has presented no evidence of any actual harm, any egregious risk of error, or any broad potential for abuse in the circumstances of the instant case. Thus, assessing the intrusions at issue in the light of the governmental interests at stake and the panoply of protections that are in place, we discern no principled basis for invalidating the PAA as applied here. [boldface emphasis added]


Further, I cannot guess what this court would decide in the general case you hypothesize, because neither you nor I know all the facts of the actual surveillance. And -- as Prof. Kerr reminds us at every opportunity -- Fourth Amendment cases are highly fact-specific.

That said, I have never been among those who have argued that any warrantless surveillance for foreign intelligence purposes -- whether sanctioned by legislation or not -- is inherently a violation of the Fourth Amendment. Even regarding the so-called Terrorist Surveillance Program -- a different program than the one this case considers -- I was never convinced that courts would hold it directly violated the Fourth. My own serious objections to that earlier Bush administration program concerned its violation of FISA, and the breathtakingly radical theories of executive power advanced to rationalize it. But none of that was under review here.
1.16.2009 2:36pm
NTB24601:
Connecticut Lawyer:

Is there anything in the opinion that limits the finding of reasonableness to the fact that Congress happened to authorize a program?

The Court repeatedly relies on the procedures required by the PAA in its reasonableness analysis, so there's certainly an argument to be made that the holding is limited to Congressionally authorized programs.

As many have said before, Justice Jackson provides a useful formulation in his well-known Youngstown concurrence. I'm sure that we are all familiar with that opinion, but just for sake of being thorough: (1) the President's power is at a maximum when he is acting pursuant to an explicit or implied authorization of Congress; (2) the President is in a "zone of twilight" when he acts in absence of a Congressional grant or denial of authority; and (3) the President's power is at the lowest ebb when his acts conflict with the express or implied will of Congress.

When the survellience program was first revealed, the President was acting in situation 3 (lowest ebb), and most of the criticism of the program was on that basis. This recent opinion dealt with situation 1 (maximum power), which means that the outcome isn't particularly surprising. You ask what the outcome would be if the President acted in situation 2 (zone of twilight).

You suggest the court would reach the same conclusion, and I am inclined to agree. Even though the court relies on the protections in the PAA, nothing suggests to me that the court wouldn't have reached the same conclusions if it had found those protections only in an executive order. I would strongly disagree, however, with any argument that this opinion suggests how a court would rule in situation 1.
1.16.2009 2:36pm
NTB24601:
Jack Black:

As should be quite obvious, the Executive Branch's inherent authority is at its apex when dealing with foreign agents on foreign soil.

Do you have any authority for this?
1.16.2009 2:40pm
Jack Black (mail):
Yes. The fact that two appellate courts have held the Warrant Clause of the Fourth Amendment not to apply to foreign intelligence gathering. The Executive, as a constitutional matter, need only be reasonable.
1.16.2009 2:48pm
Jack Black (mail):
As many have said before, Justice Jackson provides a useful formulation in his well-known Youngstown concurrence.

On what page does Selya's opinion cite to Youngstown?
1.16.2009 2:49pm
Jack Black (mail):
Well, there is no certainty based on this case

Ah, so you admit that there is reason to doubt your own interpretation of the case. I take your concession, sir!
1.16.2009 2:57pm
Just an Observer:
Jack Black,

Gosh, I guess if my reading of the case is similar to that of "left-wing blogger Glenn Greenwald," I must necessarily be wrong! It has been a while since I have been the target of such ad hominem, guilt-by-association name-calling in a serious legal forum.

I certainly do not consider myself a "left wing blogger" (or commenter). I admit that I voted for Obama, which may disqualify me in your eyes as anyone whose opinion matters. FWIW, I also strongly supported the nominations of John Roberts and Samuel Alito. (Harriet Miers, no.)

If I understand these threads correctly, I think my reading of this case in generally congruent with that of our host, Prof. Kerr. He may, of course, choose to disassociate himself from that comparison if I am in error.
1.16.2009 3:09pm
NTB24601:
Jack Black:

Yes. The fact that two appellate courts have held the Warrant Clause of the Fourth Amendment not to apply to foreign intelligence gathering. The Executive, as a constitutional matter, need only be reasonable.

That strikes me as rather dubious support for the proposition that "Executive Branch's inherent authority is at its apex when dealing with foreign agents on foreign soil." Especially so, given that neither opinion involved an exercise of the Executive Branch's inherent authority. In both cases, the Executive Branch was acting pursuant to authority delegated by Congress.


On what page does Selya's opinion cite to Youngstown?

Chief Judge Selya doesn't cite Youngstown, and nothing in my post suggests otherwise.
1.16.2009 3:32pm
Jack Black (mail):

In both cases, the Executive Branch was acting pursuant to authority delegated by Congress.



This, again, ignores that the PAA is perfectly coextensive with the Bush administration's claims of inherent authority. It is as if you are living in a bubble and ignoring the legislative history of the PAA, the Bush administration's litigation strategy, the joyous reaction of legal conservatives to both opinions I have cited, the fact that Judges Winter and Selya are known conservative stalwarts, and the arguments on at least three threads now made by Bart, Connecticut Lawyer, and myself. You are free to disagree, but to pretend that no other valid view is possible, plausible, or consistent with the Constitutional provisions at issue or the history of the relevant enactments or a sound preditive judgment of what the Supreme Court might do if deciding the case, is psychotic.

As I stated before, the strict formalist position your side is staking out relies on an outdated and obsolete formalism that no sitting federal appellate judge to hear the issue has endorsed in the context of nation security matters. Not to mention your partisans have a bad habit of poorly psychoanalyzing its "enemies," which, if anything, demonstrates the feebleness of your hive's powers of reason. For example:


I admit that I voted for Obama, which may disqualify me in your eyes as anyone whose opinion matters.



I voted for Obama as well. I think your voting history is irrelevant to this discussion. But you raised the issue, perhaps because for you law is politics by another name. I neither share your self-serving, question-begging formalism nor your cynical, critical realist attitude toward the content of the law. Perhaps that is the source of our disagreement.

In short, your position is taken on a matter of faith and is technically frivolous.
1.16.2009 4:45pm
NTB24601:
Jack Black:

This, again, ignores that the PAA is perfectly coextensive with the Bush administration's claims of inherent authority.

Ok, but how does that transform the cases into support for your proposition that: "The Executive Branch's inherent authority is at its apex when dealing with foreign agents on foreign soil."

I don't think I am pretending "that no other valid view is possible, plausible, or consistent with the Constitutional provisions..."

I just completely fail to understand your reasoning.


I voted for Obama as well. I think your voting history is irrelevant to this discussion. But you raised the issue, perhaps because for you law is politics by another name.

I never said that I voted for Obama. That was someone else.
1.16.2009 4:58pm
Jack Black (mail):
I never said that I voted for Obama. That was someone else.

I stated that. You are not reading carefully.
1.16.2009 4:59pm
NTB24601:
Jack Black:

I stated that. You are not reading carefully.

Let's not get sidetracked into interpretations of each other's posts. I would, however, recommend that you make more careful use of the pronouns "you" and "your" if you don't intend people to read your writing as directed at them personally.
1.16.2009 5:23pm
Jack Black (mail):
I would, however, recommend that you make more careful use of the pronouns "you" and "your" if you don't intend people to read your writing as directed at them personally.

Apparently, you don't know what "side" means.
1.16.2009 7:42pm
NTB24601:
So your argument is that, because someone other than me -- but whom you perceive as being on the same "side" as me -- once told you in the course of this discussion that he voted for Obama, therefore:

1. I "raised the issue" of voting history; and
2. for me "law is politics by another name;" and
3. I have a "self-serving, question-begging formalism;" and
4. I have a "cynical, critical realist attitude toward the content of the law."

I bow before your remarkable powers of generalization and retreat from this discussion with what little shreds of self identity I still keep intact.
1.17.2009 12:19am
Just an Observer:
Jack Black,

I will be pleased to set aside the political labels. I only mentioned them because it was you who applied the "left wing" label to me by association, as if that said something about my substantive reading of the instant case. I note that you now have promoted me to the status of "psychotic."

As for your accusation that I am a "formalist," I must admit that I am a fuddy-duddy who believes that the language of statutes and opinions actually means what it says, and that words matter. I gather that you follow some other gestalt method of free-association about "my side" and "your side" -- claiming, for example, that because so many "legal conservatives" are experiencing a "joyous reaction" to the ruling, that proves your belief to be correct -- a fuzziness in thinking that is archetypically sophomoric.

You mention "the arguments on at least three threads now made by Bart, Connecticut Lawyer, and myself." Forgive me, but I have not seen any of you articulate anything resembling a legal argument at all. Posing rhetorical questions, thowing out ad hominem labels, making ipse dixit assertions and stringing legalisms together does not pass for argument among us putative "formalists" who believe that words, even whole sentences organized as prose, have real meaning in the law.
1.17.2009 12:50am
Jack Black (mail):
I will be pleased to set aside the political labels. I only mentioned them because

So you admit you are a hypocrite! Hallelujah!

1. I "raised the issue" of voting history; and
2. for me "law is politics by another name;" and
3. I have a "self-serving, question-begging formalism;" and
4. I have a "cynical, critical realist attitude toward the content of the law."


I accept your concessions, sir!
1.17.2009 5:09am
Just an Observer:
Jack Black,

I suppose I could respond with "I'm rubber, you're glue ..." or something else on your level of discourse. But I think any serious reader can see who is trying to do serious analysis of this case, and who is just a troll. Alas, the legal blogsphere has been colonized with such commentary. You should stick to other venues.
1.17.2009 12:23pm
OrinKerr:
Jack Black,

If you would like to comment here, keep it civil. If you cannot be civil, you will be banned.
1.18.2009 2:33pm

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