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The Wall Street Journal editorial page
argues today that the FISA opinion made public yesterday proves that Bush was right all along that the program was legal:
  Ever since the Bush Administration's warrantless wiretapping program was exposed in 2005, critics have denounced it as illegal and unconstitutional. Those allegations rested solely on the fact that the Administration did not first get permission from the special court created by the 1978 Foreign Intelligence Surveillance Act. Well, as it happens, the same FISA court would beg to differ.
  In a major August 2008 decision released yesterday in redacted form, the Foreign Intelligence Surveillance Court of Review, the FISA appellate panel, affirmed the government's Constitutional authority to collect national-security intelligence without judicial approval. . . . .
  For all the political hysteria and media dishonesty about George W. Bush "spying on Americans," this fight was never about anything other than staging an ideological raid on the President's war powers.
  This is a pretty lame effort to spin the FISA court decision. The most serious arguments against the TSP were statutory, and this new opinion decided a constitutional challenge after the statute was changed to allow the monitoring. The new FISA court decision is simply not about whether warrantless wiretapping is legal in some general sense, or whether the TSP program was legal at the time the program began. Rather, it was about whether a modified version of it violated one particular prohibition -- the Fourth Amendment -- based on the record before the court.
Crunchy Frog:
A purely academic response to an academic question.

Bottom line is, it doesn't matter. Bush is out, and Obama's in. The program will continue unabated, and any previous questions of illegality will vanish completely now that the current occupant of the White House has a (D) after his name.
1.16.2009 1:44pm
Steve H:
Dishonesty from the Wall Street Journal editorial page?

I'm shocked!
1.16.2009 1:53pm
Ugh (mail):
This is a pretty lame effort to spin the FISA court decision.

The first six words of that sentence can be applied to 99% of the WSJ's editorials.
1.16.2009 1:55pm
OrinKerr:
Crunchy Frog,

Actually, I expect the Wall Street Journal editorial page to become the program's chief critic! Given them a few weeks....
1.16.2009 1:56pm
huskerfan:
Thanks for pointing this out Professor. Lame attempt, indeed. WSJ isn't the only source of folks who have been doing this since the opinion was announced.
1.16.2009 1:56pm
My Middle Name Is Ralph:
What a shame. The WSJ had such an excellent reputation once upon a time.
1.16.2009 2:07pm
Bart (mail):

The most serious arguments against the TSP were statutory, and this new opinion decided a constitutional challenge after the statute was changed to allow the monitoring. The new FISA court decision is simply not about whether warrantless wiretapping is legal in some general sense, or whether the TSP program was legal at the time the program began. Rather, it was about whether a modified version of it violated one particular prohibition -- the Fourth Amendment -- based on the record before the court.

FISA was gutted to ratify the TSP, the TSP was not modified to conform with FISA. Indeed there is no indication that the TSP has been substantively modified since its creation. The so called DoJ rebellion concerned a different program entirely.

There is no evidence that the gutted FISA made the TSP constitutional by adding targeting and limitation rules since the TSP had these rules from the beginning. Rather, it appears that the gutted FISA simply mirrored the TSP's pre-existing rules.

Thus, the WSJ is completely correct that the FISCR decision is authority that the TSP was constitutional from the outset. This is not a minor point given that critics of the TSP continuously claimed it violated the 4th Amendment warrant requirement despite universal contrary precedent in the circuit courts that a warrant was not required for foreign intelligence gathering. The FISCR reaffirmed the prior precedent.

Orin notes correctly the FISCR decision was limited to the question of whether the TSP violated the 4th Amendment and not whether it violated the original FISA. However, given that Article I nowhere grants Congress the power to direct or limit the President's Article II power to conduct foreign intelligence gathering, the issue should perhaps instead be whether the original FISA was attempting to unconstitutionally block the TSP.
1.16.2009 2:22pm
Jagermeister:
The ad hominem stuff is all well and good, but would it strain any of you too much to actually post something to the substance of your critiques. So far, all I've read is a pretty lame attempt to spin the WSJ's editorial.

As a wise lady once said, "Where's the beef?"
1.16.2009 2:26pm
Jagermeister:
Bart's comment excepted.
1.16.2009 2:27pm
PaddyL (mail):
I presume that those above who criticize the WSJ are dedicated readers of the NYT. They must be in denial of the fact that NYT's current management has reduced the paper to a tabloid. NYT's legacy has evolved from one of greatness into making up news and treasonous actions intended to bring down the Bush Administration.
1.16.2009 2:31pm
Laura S.:
Orin,

You omit their key assumption, and thus your argument so far amounts to "I disagree with their conclusion so their argument is facile."


FISA established a process by which certain domestic wiretaps... could be approved, not a limit on what wiretaps were ever allowed.


If you wish to draw blood, strike directly not smugly. We can all walk away with more than platitudes then.

The three critical questions are:
1) Are the searches constitutional--the great weight of public perceptions rests on the belief that the wiretaps were illicit under the 4th amendment directly
2) Are wiretaps of overseas parties governed by FISA when the communications merely transit US territory in matters pertaining to national defense? Are wiretaps of overseas parties governed by FISA when one party is a US citizen in matters pertaining to national defense?
3) If FISA does govern in those cases, is FISA a constitutional exercise of power by Congress? In particular, does the establishment of warrant requirements in excess of the 4th amendment constitute an unconstitutional delegation of executive authority to the judiciary?
1.16.2009 2:32pm
wm13:
"The most serious arguments against the TSP were statutory."

On my journeys through the blogosphere and the opinion columns of the mainstream media, I have encountered the meme "Bush has shredded the Bill of Rights" at least a hundred times for every time I have encountered the meme "Bush at one time violated a statute regulating the gathering of foreign intelligence." I realize that Prof. Kerr lives on a higher intellectual plane, which is why it's kind of silly for him to expend mental energy on newspaper editorials. Think of the Wall Street Journal editorial as a response to some of the commenters at various blogs, or to a fund-raising letter from the ACLU, and it will seem perfectly appropriate.
1.16.2009 2:34pm
JB:
The problem with Bush's domestic spying activities was not his alleging that "this is legal" when it wasn't, but that he alleged "this is legal, and even if it's not we're going to do it anyway."

It's not the spying that's the problem, it's the disregard for law. Had he, in 2002, had a law enacted legalizing what he did, there would have been far less of an issue. Because he didn't, it became clear to his critics that he wanted not to take specific questionable actions to defend the country, but to do whatever he wanted.

That's the real issue. The specifics of what were done don't matter, because they didn't matter to the people who did them.
1.16.2009 2:41pm
Thales (mail) (www):
I remember when on 9/12 or 9/13, 2001, the WSJ editorial page "argued" that the terrorist attacks "demanded" that Congress immediately confirm the President's judicial nominees--the board's concern had nothing whatsoever to do with security, of course, but with the nominees' views on business statutes, the takings clause, etc. Many newspapers have disingenuous editorial boards, but the WSJ's takes the cake in my experience.
1.16.2009 2:42pm
Thales (mail) (www):
I am not, of course, criticizing the WSJ's reporting, which remains quite good, though there has been some falloff following the Murdoch takeover.
1.16.2009 2:43pm
A Law Dawg:
It's not the spying that's the problem, it's the disregard for law. Had he, in 2002, had a law enacted legalizing what he did, there would have been far less of an issue. Because he didn't, it became clear to his critics that he wanted not to take specific questionable actions to defend the country, but to do whatever he wanted.


And here I thought he did it that way because he didn't want the bad guys to know that he was doing it.
1.16.2009 2:51pm
NTB24601:
wm13:

On my journeys through the blogosphere and the opinion columns of the mainstream media, I have encountered the meme "Bush has shredded the Bill of Rights" at least a hundred times for every time I have encountered the meme "Bush at one time violated a statute regulating the gathering of foreign intelligence."

Perhaps you have seen a different meme than I have, but the one that I have seen is "Bush has shredded the Constitution." The concern expressed by this meme -- a concern that I share --- is that the Bush Administration has done violence to the basic structure of our government by asserting excessively broad authority to disregard laws duly enacted by Congress. In my mind, the great concern about the survellience program was always the Bush Administration's assertion that it could simply disregard FISA. I don't believe that I was alone, or unusual, in that.
1.16.2009 2:58pm
Anderson (mail):
It probably doesn't hurt for me to thank Prof. Kerr occasionally for keeping up on this issue -- I haven't followed it nearly as closely as the torture issues, and I am very happy to have a smart, trustworthy law professor blogging about it.

Thanks, Prof. Kerr!
1.16.2009 2:59pm
frankcross (mail):
The amazing thing is that Orin did have great substance, to which Jagermeister said nothing. The only response is Bart's which is not really a response in defense of the WSJ but a separate argument. Or really a separate assertion about the content about Article I.

It's pretty obvious that NYT editorials are absurdly biased (left) and WSJ editorials are absurdly biased (right). Those who like one and reject the other are simply declaring that they are absurdly biased.
1.16.2009 3:02pm
frankcross (mail):
But, a question for Bart.

What is the Article II authority to conduct foreign intelligence gathering? I presume it is that making the President commander in chief of the Army and Navy. Right?

Article I gives the legislature the authority to "regulate" the Army and Navy. What is your theory about how this does not give Congress authority over the President's power?
1.16.2009 3:08pm
Jagermeister:
My comments were directed at prior comments on the thread, and not at Prof. Kerr, who has expressed his critiques clearly and thoroughly, IMHO. My apologies if my missive went astray.
1.16.2009 3:12pm
Elliot123 (mail):
"The most serious arguments against the TSP were statutory, and this new opinion decided a constitutional challenge after the statute was changed to allow the monitoring."

Correct. However, we should note the much larger public discussion of the matter was not limited to "the most serious argumants." Those who choose to live in the world of the most serious argumants are certainly welcome to do so, and they make necessary and valuable contributions. However, the rest of us realize that our fates are more often determined by far less than those most serious arguments.

I'd suggest the less serious argumant that the wiretaps were unconstitutional was far more widspread than the most serious argument that they were illegal. I'd also suggest these less serious aguments had much more effect on our society than the more serious ones.

Want another example? How about global warming? Is public policy being driven by the most serious argumants or the less serious argumants?
1.16.2009 3:42pm
hawkins:

Want another example? How about global warming? Is public policy being driven by the most serious argumants or the less serious argumants?


Public policy is almost always driven by less serious arguments.
1.16.2009 3:45pm
Bart (mail):
frankcross:

But, a question for Bart.

What is the Article II authority to conduct foreign intelligence gathering? I presume it is that making the President commander in chief of the Army and Navy. Right?

The President is the CiC. Intelligence gathering is a fundamental duty of a military commander. As CiC, Mr. Bush may command both the uniformed services and civilian agencies like NSA and CIA to prosecute a war, including to perform intelligence gathering against foreign enemies.

BTW, a previously published FISCR opinion expressly recognized this Article II power.

Article I gives the legislature the authority to "regulate" the Army and Navy. What is your theory about how this does not give Congress authority over the President's power?

First, at the time the Constitution was enacted, the term "regulate" when applied to the military meant to discipline the members of the military. You will also see this term used the same way in the phrase "well-regulated militia" of the Second Amendment. Thus, the Article I power to regulate the uniformed services means Congress may enact statutes like the UCMJ to govern the good order and discipline of the service members. This provision has never been interpreted to allow Congress to command the employment of the military.

Second, Courts have limited UCMJ enacted pursuant to the regulation clause to discipline of the uniformed services alone and held it does not extend to civilians. The NSA and CIA are not uniformed services.
1.16.2009 4:01pm
frankcross (mail):
Bart, I can accept that intelligence gathering is within the commander in chief power. But the constitutional text applied this authority only to the uniformed services (Army and Navy). So if you are a textualist or an originalist, I see difficulty in your pursuit of this argument.

As for Article I, the UCMJ historically applied only to the uniformed services, but I don't think this was on constitutional grounds, which is relevant. I believe it was just statutory interpretation. Part of the reason I believe this is that the UCMJ was recently modified to apply to civilian contractors in Iraq.
1.16.2009 4:24pm
frankcross (mail):
I must retract, it does appear to be constitutionally based. But the basis seems to be one of whether the individual was "military" not strictly that of a uniformed member of the services, and DoD just extended jurisdiction on that basis.

In any event, if Army and Navy are limited in Article I to the uniformed services, the same should apply in Article II, I would think.
1.16.2009 4:30pm
NTB24601:
Bart:

The President is the CiC. Intelligence gathering is a fundamental duty of a military commander.

Few, if any, doubt that the President has some inherent power to gather intelligence. The debate is over whether the President has exclusive authority to regulate the methods of gathering foreign intelligence. For exclusivity, you need to argue that the authority inferred from the President's duties as "Commander in Chief of the Army and Navy of the United States" trumps Congress's explicit authority to "make Rules for the Government and Regulation of the land and naval Forces." That's always seemed like a weak argument to me.

First, at the time the Constitution was enacted, the term "regulate" when applied to the military meant to discipline the members of the military.

Accepting this limited definition arguendo, there are two obvious responses. First, Congress's authority to make rules for the military is not limited to "Regulation" but also includes "Government." That seems pretty broad to me. Second, even if Congress were limited to "Regulation," making general rules to delineate what methods are acceptable strikes me as falling within discipline.


The NSA and CIA are not uniformed services.

Indeed, they are not uniform services. They are civilian agencies created by Congress. If Congress has the authority to create these agencies, surely it has authority to limit their lawful behavior.

(Also note that your argument places NSA and CIA outside the President's Commander-in-Chief authority.)
1.16.2009 4:51pm
Bart (mail):
frankcross:

In any event, if Army and Navy are limited in Article I to the uniformed services, the same should apply in Article II, I would think.

I have to concede your well taken point. I am a firm proponent of applying the Constitution as it is written, not as I would like it to read.

We obviously need to look beyond the CiC power for the President's authority to conduct foreign intelligence gathering by civilian agencies like NSA and CIA. As luck would have it, Article II also makes the President the sole executive of Foreign policy under our system of government. This foreign policy power can easily encompass foreign intelligence gathering.

So it appears that the President's Article II power to conduct foreign intelligence gathering is really two powers depending upon the nature of the intelligence collector.
1.16.2009 4:57pm
NTB24601:
Bart:

As luck would have it, Article II also makes the President the sole executive of Foreign policy under our system of government. This foreign policy power can easily encompass foreign intelligence gathering.

Article II says nothing about "foreign policy power." It does enumerate specific powers of the President that are related to foreign policy (make treaties, appoint ambassadors, etc.), but I doubt that is the source of the President's authority over NSA or CIA. I think his authority over those agencies stems from the basic Article II declaration that: "The executive Power shall be vested in a President of the United States of America."
1.16.2009 5:07pm
frankcross (mail):
What language of Article II are you talking about regarding foreign policy? I don't see any language to the effect you are claiming.

And there's another argument, the NSA was created by Congress and funded by Congress, with the authority to place conditions thereon. So, even if the President had the inherent authority, if he chose to use the NSA to exercise that authority, he would have to play by its rules.
1.16.2009 5:08pm
Bart (mail):
NTB24601:

1) The verb government refers to government of individual conduct and is analogous to the term regulate in this context. Government is not the same as command. For example, it is proper to say "Congress enacted the UCMJ to govern the conduct of service members" It is nonsensical to say that "Congress enacted FISA to govern the NSA to spy on foreign terrorists but not United States persons." However, it does make sense to say "The President commanded the NSA to spy on foreign terrorists but not United States persons."

If Congress has the authority to create these agencies, surely it has authority to limit their lawful behavior.

2) The Article I power to "raise and support armies" is simply the power to create a military. This in no matter implies a power to expand or limit the President's Article II power to command those armies once created.
1.16.2009 5:19pm
Bart (mail):
NTB24601/frankcross:

Article II begins: "The executive Power shall be vested in a President of the United States of America."

This would include both domestic and foreign executive power. I referred to foreign executive power because domestic executive power is unlikely to encompass foreign intelligence gathering.
1.16.2009 5:22pm
NTB24601:
Bart:


It is nonsensical to say that "Congress enacted FISA to govern the NSA to spy on foreign terrorists but not United States persons."

Its only nonsense because you left out a couple words rendering the sentence grammatically incorrect. There's nothing nonsensical about saying that: "Congress enacted FISA to govern how the NSA is allowed to spy on foreign terrorists but not on United States persons." BTW: I think we both agree that NSA is a poor example here because its a civilian agency.


The Article I power to "raise and support armies" is simply the power to create a military.

I could be wrong, but I doubt that either NSA or CIA were created under Congress's authority to raise and support armies. Wouldn't they be military if that were the case? My guess is that it was done under the Commerce Clause or possibly the Necessary and Proper Clause. I have no idea though. Maybe I'll try to find out later.


Article II begins: "The executive Power shall be vested in a President of the United States of America."

We agree then that this is the source of the President's authority over the CIA and the NSA. We disgree, though, on whether this gives the President exclusive authority that prohibits Congress from passing general laws regulating the behavior of the agencies. I don't see why it would any more than any other civilian agencies. You don't dispute Congressional authority to do things like impose procurement procedures on the Department of Transportation, do you?

Granted, it may be bad policy for Congress to interfere with the President's use of CIA and NSA, but that's a very different argument.
1.16.2009 5:43pm
Laura S.:

The debate is over whether the President has exclusive authority to regulate the methods of gathering foreign intelligence. For exclusivity, you need to argue that the authority inferred from the President's duties as "Commander in Chief of the Army and Navy of the United States" trumps Congress's explicit authority to "make Rules for the Government and Regulation of the land and naval Forces."

That isn't really the argument. The question is what does it mean to say that the executive power is vested in the president. The constitutional question is whether congress can subordinate the executive to the judiciary by enactment. Obviously the executive is subordinated to the judiciary in particular structural ways laid out by the constitution, historical judicial powers, and congress's ability to direct the judiciary (e.g., through rules of evidence and procedure) as adjunct to its law-making.
1.16.2009 5:56pm
Steve H:
Bart, unless I am missing something, your arguments appear to be circular -- you are saying that the executive power includes the power to wiretap because it's part of the executive power, and that Congress can't regulate the army under the "raise and support" clause because Congress can't regulate the army.

By the way, do you have any citations to back up your assertion that the power to make rules for the "government and regulation" of the armed forces did not include the power to determine what members of the armed forces could or could not do in carrying out their jobs?
1.16.2009 6:01pm
frankcross (mail):
Bart, you're not a very good originalist. The "executive power" refers to the power to execute laws (or the Constitution). Thus, it can only be used as authority to administer a law passed by Congress or an independent part of the Constitution. It is not an independent grant of substantive authority, it is only a grant of procedural authority.
1.16.2009 6:30pm
NTB24601:
Laura S.

The constitutional question is whether congress can subordinate the executive to the judiciary by enactment.

Are you saying then that Congress can pass laws limiting the manner in which the President may gather foreign intelligence, but those laws cannot include any oversight role by the judiciary? I'm just trying to understand the argument.
1.16.2009 6:53pm
Jack Black (mail):
It is not an independent grant of substantive authority, it is only a grant of procedural authority.

I'm not making Bart's argument for him, but you are question-begging.
1.16.2009 7:41pm
einhverfr (mail) (www):
Well, I think the FISC's past holding was that the TSP was constitutional if and only if the wiretaps were not used for any domestic law-enforcement/counter-terrorism operations. The Washington Post had a number of good articles on this a while back. This is a reasonable line. Sure, monitor everything to prevent a foreign threat from infiltrating, but that invasion of privacy cannot be used to for activities which are restricted by 4A.

The fundamental question still remains what the government can do with such broad surveillance, and whether warrants issued on such evidence would be poisoned fruit.
1.16.2009 7:55pm
Laura S.:

Are you saying then that Congress can pass laws limiting the manner in which the President may gather foreign intelligence, but those laws cannot include any oversight role by the judiciary? I'm just trying to understand the argument.

Close. If the warrantless wiretapping for national security purposes does not run-afoul of the 4th amendment, then regulation of those activities by the judiciary would not be an inherent judicial function. Thus Following Muskrat (1911), placing the judiciary in that supervisory capacity would be improper as no case or controversy then exists.
1.16.2009 8:39pm
frankcross (mail):
I would say an assertion of question-begging without explanation is less than question-begging. I don't see how this is in any way question-begging.

The executive power gives the President the authority to execute <i>other</i> laws. It creates no law. Hence, you must find another substantive law to create the authority. That's what we can't seem to find.

Laura S. the judiciary enforces statutes as well as the Constitution. Judicial regulation of Executive authority under a statute would not be improper.
1.16.2009 9:04pm
NTB24601:
Laura S.

If the warrantless wiretapping for national security purposes does not run-afoul of the 4th amendment, then regulation of those activities by the judiciary would not be an inherent judicial function. Thus Following Muskrat (1911), placing the judiciary in that supervisory capacity would be improper as no case or controversy then exists.

Even if the cases recognize an exception to the warrant requirement, the 4th Amendment concerns still remain. I would think that would be enough for the court to conclude that a case or controversy remains as well.

Putting that aside, though, I don't see how this argument could lead to the conclusion that the Executive Branch may disregard FISA (as the Bush Administration apparently believed it could when it initially implemented the surveillance program). Even if the argument is correct, Congress hasn't encroached upon the authority of the Executive Branch. Instead, Congress has encroached upon the authority of the Judicial Branch by assigning it a function beyond Article III. If the Supreme Court agreed with this assessment, then the Supreme Court should have refused to appoint judges to the FISC, just as the Supreme Court refused to answer the questions that President Washington posed in 1793. See Muskrat v. United States, 219 U.S. 346, 354 (1911). The fact that the Court has instead made FISC appointments indicates that the Court does not feel that FISA encroaches upon its Article III powers. How could it be proper for the Executive Branch to refuse to comply with a law duly enacted by the Legislative Branch on the grounds that it encroaches on the authority of the Judicial Branch when the Judicial has indicated that it sees no encroachment on its authority? That makes little sense to me.
1.17.2009 12:02am
Laura S.:

Laura S. the judiciary enforces statutes as well as the Constitution. Judicial regulation of Executive authority under a statute would not be improper.

Your statement is true so much as it is out-of-context. You haven't addressed the case-and-controversy limitations. In this case, the court is being asked to perform an executive function. The court performs executive-like functions all the time in the context of traditional judicial powers, but that does not mean congress can extend the power arbitrarily.

You might also pursue the qualifiers in Morrison v. Olson--the majority opinion makes it pretty clear that the bars Congress must meet when blurring the separation of powers are substantial.
1.17.2009 12:43am
Laura S.:

If the Supreme Court agreed with this assessment, then the Supreme Court should have refused to appoint judges to the FISC,

I don't think you can infer that. FISA establishes a venue that inherently protects national secrecy. Surely this is necessary and useful in those situations wherein a 4th amendment warrant requirement exists but there are state-secrets at issue. These sorts of warrants occupy the bulk of the court's time.
1.17.2009 1:30am
Christopher Cooke (mail):
Laura S: your "case or controversy" argument has no application to FISC. The court only hears applications to conduct foreign intelligence surveillance, when presented to it by the executive branch. It is performing the same role as a US Magistrate Judge, every day performs, in being asked to issue a warrant authorizing a search, in aid of a criminal investigation.
1.17.2009 9:37am
frankcross (mail):
Laura, I misunderstood your original point, but I can't see where you are going. The case or controversy is whether the search can legally proceed. The congressional statute is a qualification on that. There is nothing unconstitutional (certainly nothing in Morrison) that says that Congress cannot condition searches. It has done so historically in administrative law. Congress does that everytime it defines a crime and the consequent scope of lawful searches.
1.17.2009 12:02pm
Laura S.:

Laura S: your "case or controversy" argument has no application to FISC. The court only hears applications to conduct foreign intelligence surveillance, when presented to it by the executive branch. It is performing the same role as a US Magistrate Judge, every day performs, in being asked to issue a warrant authorizing a search, in aid of a criminal investigation.

As I mentioned, there are judicial functions in excess of cases &controversies--such as you mention: granting warrants to authorize a search. But if certain types of foreign intelligence gathering are not subject to judicial supervision under the 4th amendment, then it is reasonable to wonder whether supervision in those cases is part of the traditional judicial power. If it is not, then it is not within the power of Congress to delegate those functions to the judiciary.


Congress does that everytime it defines a crime and the consequent scope of lawful searches.

But I think this is distinguished. In particular, in those situations a case or controversy does in fact exist or for instance the 4th amendment applies already.

Congress cannot backdoor compel the courts into issuing advisory opinions by conditioning a law on first acquiring such an opinion from the court. That is almost precisely the background of Muskrat.
1.17.2009 5:23pm
Just an Observer:
Laura S: But if certain types of foreign intelligence gathering are not subject to judicial supervision under the 4th amendment, then it is reasonable to wonder whether supervision in those cases is part of the traditional judicial power. If it is not, then it is not within the power of Congress to delegate those functions to the judiciary.

The entire judiciary and its jurisdiction, below the Supreme Court, is defined by act of Congress. FISA created this court and defined its limited jursidictiom. PAA expanded that juridiction somewhat when it authorized these surveillance "directives" to be issued to telecoms, and specifically provided a jurisdiction for limited review of that process in the FISA courts.
1.18.2009 10:54am
roan:
Marcy Wheeler has an important post up about the mysterious inclusion of Executive Order 12333 in the FISA Appeals Court opinion:

EO's Probable Cause used in lieu of the PAA's lack thereof

Until the Protect America Act was passed, EO 12333 governed Executive Branch-initiated spying abroad on U.S. Persons abroad deemed "foreign agents or agents of a foreign power" - spying which existed outside the purview of FISA (and which is a targeting definition much more limited than exists in the Protect America Act itself, yet that limited EO targeting language is a key part of the holdings of the FISA Appeals Court).

That EO remained in force after the PAA was enacted in 2007, but with a potentially-significant broadening: Because of the carve-out in the FISA definition of "electronic surveillance" in the PAA for "surveillance directed at a person reasonably believed to be located outside of the United States" (in other words, U.S.-based spying no longer covered by Classic FISA warrants) a previously FISA-warrants-triggering provision of EO 12333 could now be used without causing such a trigger in such a circumstance. That provision in Section 2.5 is highlighted here:

The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order.


[This broadening, as it relates to spying on U.S. Persons abroad from inside the U.S., was seemingly done away with by the FISA Amendments Act of 2008, because the FAA explicitly requires Classic FISA warrants for any such targeting inside the U.S. of U.S. Person foreign agents abroad, in addition to involving the FISA Court for the first time in surveillance abroad of such U.S. Persons located abroad.]

Based on the portions of the FISA Court of Appeals opinion we have available, some such broader use of Executive Order 12333 - apparently targeting U.S. Persons abroad [otherwise, as I think Marcy may have overlooked, Classic FISA appears to still be triggered due to the involvement of spying targeting U.S. Persons] from inside the U.S. - seems to have been made, in combination with a bulk (non-particularized) "concerning persons reasonably believed to be located outside of the United States" programmed spying order under the PAA.

The FISA Appeals Court says:

"[The challenged surveillance] involves the acquisition from overseas foreign agents of foreign intelligence to help protect national security."


And it was the temporary (until the FAA passed) limits (limits absent from the Protect America Act itself) of the now-superceded Executive Order and accompanying regulations (as to time-limit and probable cause and foreign agency) that seem to have been most of what swayed the FISA Appeals Court to rule this narrow, specific use of the PAA, as-applied in this case, to be Constitutional as a "reasonable" government invasion of privacy under the Fourth Amendment.

Which, as Marcy indicates, amounts to very slim pickings indeed. Not much to hang PAA/FAA domestic spying's hat on at all.
1.19.2009 12:06am
roan:
Or, to put it another way:

The very U.S.-based, U.S. Person abroad-targeted, individualized-warrant-free PAA spying that the FISA Court of Appeals seems to have just waved through as Constitutional (based mostly on "reasonable" limits not in the Protect America Act itself) was explicitly written out of the FISA Amendments Act that replaced the Protect America Act a month before this Appeals opinion was issued.
1.19.2009 12:50am
Just an Observer:
The ultimate irony of watching partisans distort the FISCR ruling to somehow validate the Bush administration's so-called "Terrorist Surveillance Program" as lawful is that the entire strategy of the outgoing administration has been to avoid judicial review of the merits of that proposition. While advancing legal "arguments" in public, the administration has obviously feared testing those arguments in court.

Perhaps there is still hope. Under the new administration, DOJ still might facilitate a test case. A good start would be to review the secret files of the historical TSP, identify any U.S. persons who were surveilled and who were not agents of a foreign power, and notify them of the surveillance. The government could also waive claims of privilege in already pending civil cases, make the requisite stipulations about the facts, and get on with the arguments over the legal merits.

Those actions, which seems morally required in their own right, would also enable the victims to seek civil redress straightforwardly under FISA's civil provisions. Prosecuting those responsible for violating FISA's criminal sanctions is another matter, which may or may not be legally feasible.

The difficult part would be in advancing the Bush administration's arguments on appeal, if the Obama/Holder DOJ lawyers do not think those arguments are colorable.
1.19.2009 10:01am

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