Operational necessity, FISA and the NSA
[Phillip Carter,
Wednesday December 28, 2005 at 4:27am ]
In yesterday's New York Times, David Rivkin and Lee Casey opine that the President has done no wrong in ordering the National Security Agency to gather signals intelligence since Sept. 11. Such an order falls clearly within the President's powers, they argue, both as granted by the Constitution and as granted by Congress in its authorization for the use of military force. Furthermore, the two senior Reagan Administration alumni argue that such surveillance is necessary for operational reasons. Here's the key section from their op-ed:
1. ". . . the government can get a warrant from the FISA court when there is probable cause to believe the target of surveillance is a foreign power or its agent." This is basically true, but it's also incomplete. There are those who would FISA as an anachronistic institution better suited to the Cold War, and its battles between state-sponsored spies. In fact, the FISA statute's definition of "foreign power" is anything but anachronistic — FISA's definitional section explicitly includes groups like Al Qaeda within its scope as "a group engaged in international terrorism or activities in preparation therefor." So the whole foreign power thing is a canard; FISA can, in fact, be used to target Al Qaeda and its affiliates.
2. "The procedures under the surveillance act are streamlined, but nevertheless involve a number of bureaucratic steps." True enough, the FISA statute contains a number of requirements that certain executive branch officials approve FISA applications before they go forward. Some might call these bureaucratic steps; I like to think of them as institutional safeguards. Regardless, the point is that these bureaucratic actors all work for the President, save the Art. III judges who sit on the FISA court. The president has plenary power to fire any leader in this bureaucratic chain (for the most part), save the judge with the final decision, should he or she move too slowly on a FISA application. This is not an argument against FISA; this is an argument about the inefficiencies and inadequacies of the Justice Department. And if you think about it, this is a really silly argument. The authors are saying that the Justice Department is too larded down to work right, so let's fix the statute. That doesn't add up. DOJ is the issue here, not the statute. I guarantee you that a bloated Justice Department would find a way to muck up even the most well-drafted of statutes; this is a constant of bureaucracies. If the problem is truly bureaucracy, let's look at how to make that process work better, not how to short-circuit it with extra-legal measures.
3. "Furthermore, the FISA court is not a rubber stamp..." While I wouldn’t insult the FISA court by calling it a rubber stamp, I would say that it goes along with the Justice Department in an overwhelming number of cases. Until the FISA Court of Review decision a couple of years ago, it was thought that the FISA court had approved every single application that came before it. Rubber stamp? You be the judge. Personally, I believe there's a more nuanced dynamic at work; that all the Justice Department's "bureaucratic steps" were working to only send forward FISA applications that deserved to be approved. And so the DOJ batting average is high at the FISA Court for the same reason that prosecutors have a high batting average: they dismiss or dispose of the cases they don't want to take to court. Unfortunately, given the classified nature of these proceedings, we may never know the truth.
Update: A colleague just e-mailed me the link to this UPI story about the Bush administration's batting average before the FISA Court:
4. "[The FISA court] may well decline to issue warrants even when wartime necessity compels surveillance." Well, yes, those darn courts sometimes get in the way, don't they? I'll bet that Harry Truman felt that way when the Supreme Court told him to hand back the steel mills during the Korean War. And the current administration probably felt pretty frustrated when the Supreme Court rebuked its wartime detention policies in 2004. This argument only begs the question: do the authors believe that the President can unilaterally disregard the law when he believes it is necessary to do so? If the answer is yes, and this is what the President seeks, that is a stunningly broad and dangerous assertion of power.
5. "[FISA] was designed for the intricate 'spy versus spy' world of the cold war, where move and countermove could be counted in days and hours, rather than minutes and seconds." Really? I thought FISA was drafted during the Cold War, when the U.S. and Soviet Union lived with thousands of nuclear warheads pointed at each other. There was a day when spies' movements could be traced in days and hours; I think that day was sometime around when Nathan Hale operated, or perhaps the U.S. Civil War at the latest. By the time FISA was written, ours was a world of satellites, nuclear weapons and global communications. Global transnational terror networks like Al Qaeda would come later, but even in 1978, the world knew about terrorism because of attacks like that at the 1972 Munich Olympics.
[Update: Furthermore, Al Qaeda doesn't typically act in hours or minutes. From what we know of Al Qaeda's recent spectacular operations (i.e. the 1998 embassy bombings, the 2000 USS Cole attack, the 2001 attacks on the Pentagon and WTC), they have taken months or years to move through the planning, preparation, reconnaissance and execution phases. If anything, the threat was more immediate during the Cold War when our enemy really did have the ability to go from decision to nuclear strike within a matter of minutes. Today's enemy has a much longer operational timeline than Mr. Rivkin and Mr. Casey would like to acknowledge.]
6. "It was not drafted to deal with the collection of intelligence involving the enemy's military operations in wartime, when information must be put to immediate use." FISA was intended to be a wartime law — it was a creature of the Cold War. But the framers of FISA had quite a different conception of wartime than Messrs. Rivkin and Casey. They did not see wartime as a blank check for the suspension of civil liberties, nor a blank check for the aggrandizement of executive power. Rather, FISA's creators saw wartime during the Cold War as a constant state when liberty would have to be balanced with security in a way that furthered both. Congress and the President appreciated the operational necessities of that world, but they sought to impose FISA as the least restrictive regime which would enable the President to gather intelligence while also safeguarding the 4th Amendment rights of Americans. It was not (and is not) a perfect compromise, but it's what we've got.
Operational necessity may well dictate that we reform the FISA regime; it may also require that we streamline the Justice Department and its internal FISA processes. But operational necessity should never be a justification for the wholesale abandonment of the law. There are few slopes more slippery than that from small legal breaches justified by necessity to large ones. Any wartime action, no matter how unlawful heinous, can always be justified by some battlefield exigency. If we replace the rule of law with the rule of necessity for one emergency, it is difficult to see where that will stop.
[But Phil, what about a serious crisis that threatens the very existence of the nation? Surely then you could agree with a little unlawfulness? I approach this question with great trepidation. There may well come a day when the president must break the law in order to save the republic. If that day comes, I hope the president will act. However, I agree with Michael Walzer's argument that the proper post-crisis response should not be to bootstrap a legal justification onto such an extra-legal emergency measure. Rather, I believe that a leader should accept responsibility for the action by standing before the nation with "dirty hands" (to use Walzer's term), accepting responsibility for both the measure and its unlawfulness.]
In an effort to control counterintelligence activities in the United States during the cold war, the surveillance act established a special court, known as the FISA court, with authority to issue wiretapping warrants. Instead of having to show that it has "probable cause" to believe criminal activity is taking place (which is required to obtain a warrant in an ordinary investigation), the government can get a warrant from the FISA court when there is probable cause to believe the target of surveillance is a foreign power or its agent.Riposte: I'm all for making operations-based arguments about the law; I have done it myself on occasion. However, in this case, I think the two gentlemen badly mischaracterize the operational environment — thus arriving at a false conclusion. Let's take this paragraph piece-by-piece:
Although the administration could have sought such warrants, it chose not to for good reasons. The procedures under the surveillance act are streamlined, but nevertheless involve a number of bureaucratic steps. Furthermore, the FISA court is not a rubber stamp and may well decline to issue warrants even when wartime necessity compels surveillance. More to the point, the surveillance act was designed for the intricate "spy versus spy" world of the cold war, where move and countermove could be counted in days and hours, rather than minutes and seconds. It was not drafted to deal with the collection of intelligence involving the enemy's military operations in wartime, when information must be put to immediate use.
1. ". . . the government can get a warrant from the FISA court when there is probable cause to believe the target of surveillance is a foreign power or its agent." This is basically true, but it's also incomplete. There are those who would FISA as an anachronistic institution better suited to the Cold War, and its battles between state-sponsored spies. In fact, the FISA statute's definition of "foreign power" is anything but anachronistic — FISA's definitional section explicitly includes groups like Al Qaeda within its scope as "a group engaged in international terrorism or activities in preparation therefor." So the whole foreign power thing is a canard; FISA can, in fact, be used to target Al Qaeda and its affiliates.
2. "The procedures under the surveillance act are streamlined, but nevertheless involve a number of bureaucratic steps." True enough, the FISA statute contains a number of requirements that certain executive branch officials approve FISA applications before they go forward. Some might call these bureaucratic steps; I like to think of them as institutional safeguards. Regardless, the point is that these bureaucratic actors all work for the President, save the Art. III judges who sit on the FISA court. The president has plenary power to fire any leader in this bureaucratic chain (for the most part), save the judge with the final decision, should he or she move too slowly on a FISA application. This is not an argument against FISA; this is an argument about the inefficiencies and inadequacies of the Justice Department. And if you think about it, this is a really silly argument. The authors are saying that the Justice Department is too larded down to work right, so let's fix the statute. That doesn't add up. DOJ is the issue here, not the statute. I guarantee you that a bloated Justice Department would find a way to muck up even the most well-drafted of statutes; this is a constant of bureaucracies. If the problem is truly bureaucracy, let's look at how to make that process work better, not how to short-circuit it with extra-legal measures.
3. "Furthermore, the FISA court is not a rubber stamp..." While I wouldn’t insult the FISA court by calling it a rubber stamp, I would say that it goes along with the Justice Department in an overwhelming number of cases. Until the FISA Court of Review decision a couple of years ago, it was thought that the FISA court had approved every single application that came before it. Rubber stamp? You be the judge. Personally, I believe there's a more nuanced dynamic at work; that all the Justice Department's "bureaucratic steps" were working to only send forward FISA applications that deserved to be approved. And so the DOJ batting average is high at the FISA Court for the same reason that prosecutors have a high batting average: they dismiss or dispose of the cases they don't want to take to court. Unfortunately, given the classified nature of these proceedings, we may never know the truth.
Update: A colleague just e-mailed me the link to this UPI story about the Bush administration's batting average before the FISA Court:
The 11-judge court that authorizes FISA wiretaps modified only two search warrant orders out of the 13,102 applications approved over the first 22 years of the court's operation.Given these stats, it's entirely plausible that the administration chose to make an end run around the FISA court, because of the pushback it was getting from that court. You don't typically get to ignore a court (or devise an end-run around it) when it tells you something you don't like. Some have tried that course of action in our nation's history; the results have been ugly.
But since 2001, the judges have modified 179 of the 5,645 requests for surveillance by the Bush administration, the report said. A total of 173 of those court-ordered "substantive modifications" took place in 2003 and 2004. And, the judges also rejected or deferred at least six requests for warrants during those two years — the first outright rejection of a wiretap request in the court's history.
4. "[The FISA court] may well decline to issue warrants even when wartime necessity compels surveillance." Well, yes, those darn courts sometimes get in the way, don't they? I'll bet that Harry Truman felt that way when the Supreme Court told him to hand back the steel mills during the Korean War. And the current administration probably felt pretty frustrated when the Supreme Court rebuked its wartime detention policies in 2004. This argument only begs the question: do the authors believe that the President can unilaterally disregard the law when he believes it is necessary to do so? If the answer is yes, and this is what the President seeks, that is a stunningly broad and dangerous assertion of power.
5. "[FISA] was designed for the intricate 'spy versus spy' world of the cold war, where move and countermove could be counted in days and hours, rather than minutes and seconds." Really? I thought FISA was drafted during the Cold War, when the U.S. and Soviet Union lived with thousands of nuclear warheads pointed at each other. There was a day when spies' movements could be traced in days and hours; I think that day was sometime around when Nathan Hale operated, or perhaps the U.S. Civil War at the latest. By the time FISA was written, ours was a world of satellites, nuclear weapons and global communications. Global transnational terror networks like Al Qaeda would come later, but even in 1978, the world knew about terrorism because of attacks like that at the 1972 Munich Olympics.
[Update: Furthermore, Al Qaeda doesn't typically act in hours or minutes. From what we know of Al Qaeda's recent spectacular operations (i.e. the 1998 embassy bombings, the 2000 USS Cole attack, the 2001 attacks on the Pentagon and WTC), they have taken months or years to move through the planning, preparation, reconnaissance and execution phases. If anything, the threat was more immediate during the Cold War when our enemy really did have the ability to go from decision to nuclear strike within a matter of minutes. Today's enemy has a much longer operational timeline than Mr. Rivkin and Mr. Casey would like to acknowledge.]
6. "It was not drafted to deal with the collection of intelligence involving the enemy's military operations in wartime, when information must be put to immediate use." FISA was intended to be a wartime law — it was a creature of the Cold War. But the framers of FISA had quite a different conception of wartime than Messrs. Rivkin and Casey. They did not see wartime as a blank check for the suspension of civil liberties, nor a blank check for the aggrandizement of executive power. Rather, FISA's creators saw wartime during the Cold War as a constant state when liberty would have to be balanced with security in a way that furthered both. Congress and the President appreciated the operational necessities of that world, but they sought to impose FISA as the least restrictive regime which would enable the President to gather intelligence while also safeguarding the 4th Amendment rights of Americans. It was not (and is not) a perfect compromise, but it's what we've got.
Operational necessity may well dictate that we reform the FISA regime; it may also require that we streamline the Justice Department and its internal FISA processes. But operational necessity should never be a justification for the wholesale abandonment of the law. There are few slopes more slippery than that from small legal breaches justified by necessity to large ones. Any wartime action, no matter how unlawful heinous, can always be justified by some battlefield exigency. If we replace the rule of law with the rule of necessity for one emergency, it is difficult to see where that will stop.
[But Phil, what about a serious crisis that threatens the very existence of the nation? Surely then you could agree with a little unlawfulness? I approach this question with great trepidation. There may well come a day when the president must break the law in order to save the republic. If that day comes, I hope the president will act. However, I agree with Michael Walzer's argument that the proper post-crisis response should not be to bootstrap a legal justification onto such an extra-legal emergency measure. Rather, I believe that a leader should accept responsibility for the action by standing before the nation with "dirty hands" (to use Walzer's term), accepting responsibility for both the measure and its unlawfulness.]
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The bottom line, it seems to me, is that even if the authors are right about every point, it doesn't matter. The president could have asked for FISA to be changed at any time during the several YEARS since 9/11. He just decided the law was obsolete and ignored it. No "emergency" excuses suffice when your "emergency" lasts for month after month after month, with Congress in session. Thus the only thing that appears clear is that he thinks he can do that if he wants to. As you put it, that is a stunningly broad and dangerous assertion of power. It is also exactly what the president has done.
Patrick Henry said "give me liberty, or give me death." I think we can have liberty and security, but if forced to make a choice I side with our Founders, and it frightens me that this president does not.
- The Justice Memo outlining the adminstration's case that was sent to Congess last Thursday. Particularly:
--The last para where it makes the claim that narrowly crafting an amendment to FISA to suit what's going on would broadcast our capabilities and limitations to the enemy which taken with the subsequent article in the NYT regarding NSA datamining implies that what's going on is a technology use that FISA doesn't cover, (with all that implies).
And also:
-The argument most recently put forward by Kissinger, (and M. Rifkin in an interview) that Congress authorized POTUS to go to war against AQ, and SIGINT is a wartime activity and the sole power to conduct it rests with POTUS as Commander and Chief, (this is also argued in the Justice Memo when they cite the interception of telegraphs and radio signals into and out of the country in both WWI's and II).
Furthermore while it's implied, again without evidence, that it was the adminstrations fault its warrants weren't being approved as often or modified more often because of questions of their legality under FISA there is nothing in the article to prove it beyond the implication and it is just as possible that it had to do with a personality who happened to be appointed to the court around the same time, (as cited in a follow-on article). However in both cases everything is speculation. There's no proof one has anything to do with the other.
The bottom line is that there's a whole lot of speculation going on which because of the classified nature of the program is likely to remain speculation until there are real hearings into the matter. In the meantime I'd like to see arguments about what we know has been going on, (as oppsoed to what we think) confined to the ENACTED law, and the Justice memo I cited above would be a good starting point.
The US is involved in a war. No I am not talking about Iraq. I am talking about the large number of people who have been brainwashed (religiously conditioned) to see the US and Europe as the devils. Conditioned by people who want to move back to 400AD and conquer everyone who is not Muslim.
You can pontificate all you want but your disussions are meaningless because nothing you say or do will change the attitude of the Jihadists.
In the meantime I'd like to see arguments about what we know has been going on, (as oppsoed to what we think) confined to the ENACTED law, and the Justice memo I cited above would be a good starting point.
If you confine the discussion to ENACTED law, the President and the the Department of Justice admit to have broken the law and ordered the NSA to engage in criminal actions outlawed by the FISA statute.
Arguments by the DOJ that the Force authorization or that the President has the authoritiy to ignore the FISA statute are theoretical and merely what people "think." If you eliminate that as a basis of discussion and only to clearly enacted law, then you only have left FISA, which no one denies, on its own terms, criminalizes exactly what the President has done.
If you truly want to eliminate speculation, then you should likewise criticize anyone who says the President's actions were necessary, or saved lives or is permitted under the Constitution.
We know that the President authorized actions made illegal under the terms of FISA since the President and DOJ admits as much. The defense of that action is theoretical, if you eliminate the theoretical you eliminate discussion of their alleged justification.
> Iraq. I am talking about the large number of people who
> have been brainwashed (religiously conditioned) to see the
> US and Europe as the devils. Conditioned by people who
> want to move back to 400AD and conquer everyone who is not
> Muslim.
Stolen from comments on another blog:
"Then, if we have a war, an ongoing even forever war, against an enemy that knows no constitutional limits, does this mean we are forever through with Constitutional safeguards?"
To which I add, if your statement is correct, shouldn' the President make a nationally-televised speech describing this situation in detail and explaining (in general terms of course) the plan of action? And shouldn't we be seeing some fairly substantial tax increases to pay for this "war"?
Cranky
Then we should pick apart what the administration thinks. After all, judging from the Memo they're asserting that Congress authorized the POTUS to go to war against AQ, SIGNINT is a wartime power the POTUS's power as C&C is war trumps FISA. Where are they and Kissinger wrong?
2) The administration argument seems to be that the President has the authority to conduct electronic surveillance without any oversight even if the methods used mean some of the conversations captured don't include anyone with ties to foreign powers. So long as the purpose is the collection of "military" intelligence it is legal.
Given modern communication technology, there really is no limit on how broadly one can cast the fishing net if one chooses. By this argument, so long as the President decides it is military useful, he can monitor any or all electronic communication within the United States. And I suppose so long as the monitoring captures some foreign intelligence, it would be legal no matter how much other information was obtained. The only limit is the President's self-restraint.
3) The argument regarding the congressional authorization is just plain dangerous. If the assumption is that the President will take any simple resolution and interpret it to give himself sweeping powers, the logical response in congress is not to pass such a resolution without micro-managing how it will be implemented. That's what eventually happened after the Gulf of Tonkin resolution. And I suspect we are going to see the same thing happen again.
No, the argument that amending the law would "reveal" anything to our enemies is false, unless what we "reveal" is that we are a nation of laws, not men, and that we hold true to the Constitution and the Bill of Rights. I guess we wouldn't want to "reveal" that information, would we?
The argument that the authorization for the use of force covered "sigint" is also false. We use military assets and capabilities against our enemies, not our citizens. That does not mean we are defenseless against enemies who hide here in the US plotting to strike. It means the US is not a battlefield, and the way we fight them here is and must be balanced by the rights of citizens to be free from unreasonable search and seizure. What is "unreasonable" is to be defined by the People, not the president. The People speak in Congress through their elected representatives, and the president can't overrule the will of the people for "their own good." Period, end of discussion. Anything else is tyranny.
Finally, the bit in the cited article about the Authorization didn't authorize the use of artillery and air power, but it was implied - suggesting that the authorization also allowed the president to ignore ISA and order the NSA program - is precisely the point. No, the Authorization didn't imply that artillery and air power could be used IN CHICAGO or anywhere else in the US, and the argument that the 9/11 authorization applied here at home with respect to US citizens also means that Bush can bomb LA if he wants - he is "authorized" to do so. Ridiculous? So is the notion that the 9/11 authorization overrides FISA. If Congress had wanted to override FISA they would have spoken clearly on the matter and there would be no need to "imply" anything. If they didn't, then the president can not.
Your suggestion that my comments were stolen from another blog is interesting. I do not steal other peoples comments.
Why is it so difficult to understand that someone else may have the same ideas that I have.
I would suggest to you that my thoughts are far more reflective of reasonable people than the theoretical arguments put forth by the elitists on some blogs.
I should have been more clear that the memo asserts that SIGINT is a wartime duty that the Pres has sole authority over as C&C and in war it trumps FISA.
My point is that assertion is both speculative and theoretical.
In your comment that I was responding too you indicated that you didnt want speculative or theoretical discusssion and want the discussion limited to ENACTED law until a "real hearing on the matter." The theory assserted in the memo is both theoretical and speculative. In support it cites pre-FISA decisions that do not address the fundamental issue of contention - whether the President can unilaterally disregard laws passed by Congress that expressly prohibit the President's determined action?
As for enacted law:
Actually, there are many very conservative people who vigorously oppose the program. For example, constitutional scholar Robert Levy — who is a board member at the right-wing Federalist Society — is an outspoken critic. The Federalist Society recently posted a Q&A with Levy on their website. Here are some highlights:
– The text of FISA §1809 is unambiguous: “A person is guilty of an offense if he intentionally engages in electronic surveillance … except as authorized by statute.”
– I know of no court case that has denied there is a reasonable expectation of privacy by U.S. citizens and permanent resident aliens in the types of wire communications that are reportedly monitored by the NSA’s electronic surveillance program.
– [I]n FISA §1811, Congress expressly contemplated warrantless wiretaps during wartime, and limited them to the first 15 days after war is declared.
JD Henderson raises some of the numerous problems with the theory that the Commander in Chief power trumps FISA and that the President has sole discretion on the matter. What are the limits of this theory and who decides the limits? Absent what the President alleges was "shameful" disclosure by the NYT how would we of ever had a real hearing on the issue? When and how will we get a "real hearing" now that we know about it? How will we know when this "state of war" is over and how long should we expect it to last? Is the President the sole determiner of these questions?
> another blog is interesting. I do not steal other
> peoples comments.
Sorry if I was unclear. I stole the comments in the quotations marks from another blog's comments section. Figuring out links on this site has defeated me and I was not able to cite the author.
I would think that was fairly clear from the context though.
Cranky
To throw in another thing Kissinger pointed out(see my earlier comment on the final para of the Memo) if SIGINT is a wartime power the President couldn't bargain it away with Congress. He could, but no President would voluntarily bargain away their power at a time of war and to do so would be irresponsible because it would hamstring future presidents.
And what was the thing in the Memo about intercepting telgraphs and radio transmissions dinto and out of the country in WWI and II? Anyone have a case they'd discuss?
Am I the only one that read the Memo?
Finally, the bit in the cited article about the Authorization didn't authorize the use of artillery and air power, but it was implied - suggesting that the authorization also allowed the president to ignore (F)ISA and order the NSA program - is precisely the point.
But we're talking about SIGINT. What we're left without it is a war where the President can authorise killing a terrorist but cannot tap his cell phone without knowing how he''ll use it before the fact. Ridiculous?
I know, I know, he should have changed it...
Nope, that isn't an accurate statement. We can kill a "terrorist" but not a US citizen in the United States - or are you saying the president has the power to determine who is and who is not a "terrorist" and to order them killed, even if they are a US citizen here in the United States? Because that is Padilla, my friend. No, Padilla wasn't killed, but he has been denied due process solely on the order of the executive. Am I Padilla's "buddy?" No. But I am no "buddy" of anyone who would suggest in our nation that a president can just declare a US citizen's rights are meaningless - on his say-so and nothing more, with no way to challenge that determination.
Under FISA we can listen in to every conversation that was recorded without a warrant - all that is needed is a warrant. And if FISA needs updating, then yes, you know, you know, he should have changed it... But that is NOT a throw-away line. It is critical. Regardless of the threat a president must see that our laws - not HIS, but OUR laws - are well and faithfully executed. It is better to seek forgiveness than ask permission, true, but he isn't even seeking that - he is declaring, unilterarlly and in the face of very clear precedent otherwise, that he has the authority to issue himself the permission he needs. He is declaring the ability to make, or ignore, law.
How anybody thinks that this is justified because we have enemies who want to harm us is puzzling. We have always had, and always will have, enemies. The Constitution wasn't set up in a vacuum - we had just fought the world's most powerful military, and expected to have to fight them again - and we did, and they burned the damn White House down. And yet, we still held true to the Constitution. But 19 guys with box-cutters and whoa-boy, all bets are off because now we are really in danger? More danger than that posed by any other enemy in our history? Naah, I don't buy it. The threat is very real, but the ways to deal with do not include a wartime dictator. Anyone who suggests the threat justified the FISA violations is suggesting the threat justifies wartime dictatorship. I think we fought the civil war without one, we fought the 3rd Reich and the Empire of Japan without one, we fought anarchists in the early 1900s without one (terrorists that actually assasinated a president, mind you, and blew up buildings in strikes on civilians), so AQ's very real threat does not require a wartime dictatorship.
Yes, he should have asked to change it. He didn't, and now he should be impeached and go to jail. And I don't say this as a partisan "anti-Bush leftie." I don't look forward to President Cheney, and an impeachment might even help the republican party in the next election or in 2008. I don't care. This is about the survival of our republic, and right now the greatest threat does not come from AQ.
Are you talking about the letter from DOJ to Congress? (A link would help).
The Department of Justice letter is found here:
The comments about radio signals during WWI and WWII appear to be mostly irrelevant since I have seen no assertion that Congress expressly outlawed such actions during WWI or WWII. Much more relevant is policy on torture of prisoners. Some people seem to confuse the issue as to whether the President has power to take an action where Congress has not expressly authorized that action, versus the very different position as to whether the President has the Power to take an action that Congress has duly passed a law that makes such an action criminal. The legal decisions cited by the Department of Justice almost all refer to the former situation, while this case involves the later. One example is when Truman seized the steel mills and the Supreme Court found that action unconstitional.
The arguments put forward here are similar to those put forward to justify Administration policy with respect to torture.
Justice Roberts during his confirmation hearings spoke directly on this issue:
When you examine enacted law there is really no contest unless you assume FISA is unconstitutional. On the one hand you have FISA which expressly outlaws the conduct pursued by the President. On the other hand you have an authorization to use force, which the President wishes to construe to mean whatever he wishes it means. Especially doubtful in this case where more expansive language sought by the President was rejected by Congress.
The argument that that authorization to use force, trumps FISA is even less compelling than it allowed the President to ignore restrictions on the use of torture. If one accepts the DOJ argument that Presidential power trumps FISA then it would likewise trump any restrictions on intelligence gathering from prisoners caputured as well. Roberts expressly rejected that position in his testimony as he rightfully should.
Actually the dlaim isn't that it "trumps" FISA. The claim is that the authorizaion of the use of force is statuatory authority and therefore consistent with FISA which only prohibits surveillance without statuatory authority.
While I of course appreciate your commentary on the pragmatic considerations at issue, your bottom-line analysis -- "But operational necessity should never be a justification for the wholesale abandonment of the law" -- simply begs the question. There's a difference between "the law" and "this statute." "The law" includes, first and foremost, the Constitution. And it's never been a settled that FISA circumscribes the President's authority to engage in foreign-intel surveillance without a warrant, JD's hysterics notwithstanding.
This should be obvious even from the briefest skimming of the essay: Constitutional considerations make up the vast majority of the analysis. The gut of the essay begins right away with "The president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing." It ends with "The Constitution's framers did not vest absolute power in any branch of the federal government, including the courts, but they did create a strong executive and equipped the office with sufficient authority to act energetically to defend the national interest in wartime. That is what President Bush has done, and nothing more." In the middle, it focuses almost exclusively on legal questions. Only one paragraph -- Paragraph 5, "Although the administration could have sought such warrants, it chose not to for good reasons ... ." -- raises pragmatic concerns.
In other words, you're glaringly wrong when you describe that section as "the key section" of the essay. If anything, it's the least important part of their essay. I do look forward to your analysis of their actual argument -- the legal questions at issue -- because you'll surely have interesting thoughts on that. But this post doesn't really respond to their argument in any substantial manner.
The claim is that the authorization to use force gave the president authority to wiretap - that is, the authorization to use force was statutory authority to spy on Americans, without a warrant, within the united states, with no limits on the use of such force against fellow Americans other than executive whim. What happened to limited government, or "We the People?"
Clearly such an argument is, well, "weak" at best. If the president is allowed to interpret an authorization to use force as authority to use it against our fellow Americans without Congressional oversight - in fact, in defiance of Congress - then we have a wartime dictatorship. Even the declaration of war in December 1941 was not considered an authorization for FDR to ignore prior laws, but simply the authorization to commit military resources against the enemy and put the nation on a war footing. Congress met throughout the second world war, and passed laws, changed others, etc, and nobody thought this was superfluous. It must not be.
Here we don't even have a declaration of war, and the president wants greater power than any president ever in the history of our republic - greater even than that of Abraham Lincoln, who faced down the greatest threat we ever faced, a threat among our own people. He is claiming he has the authority to ignore laws that limit executive power based on the authorization to use force - and worse, also claiming he has the authority to ignore FISA based on his inherent authority as commander in chief even without any wartime power through an authorization to use force.
Yes, the authorization to use force is statutory authority - but to use force, and it simply does not apply to FISA, but to the use of force against the enemy. If that is taken to mean that the use of sigint against our own people - as a military measure - is permitted despite laws clearly making such behavior illegal, then there is nothing - NOTHING - to prevent other military measures being used against Americans. If they can spy, they can pry, they can detain, they can imprison (ooops, already done in Padilla), they can shoot, they can kill. Without any authority other than the authorization to use force against the enemy. Americans are per se not the enemy, and thus we have a Justice Department that is, and must be, separate from the military. The military fights the enemy, the police serves and protects the people. Combine them and the enemy quickly (and ALWAYS) becomes the people. Thus the president's claim that it was okay to ignore the law and use the NSA against American citizens in order to "protect" them is doubly dangerous.
The use of American military resources against American citizens, in the United States, in direct violation of prior laws outlawing such behavior based on past misuse of such power by the executive, is not what the authorization to use force was intended for - and the president damn well knows it. FISA was always intended to prevent the executive listening in on Americans without Congressional oversight, and whether we are at war or peace is irrelevant. All Congress required was oversight, and the president didn't even give them that. He didn't give US that. And we - the People - ordered him to. Whether you are right or left wing, like or hate Bush, Republican or Democrat, that has to rub you the wrong way or you can't honestly claim to love democracy. The People are sovereign, they issued a clear and unambiguous order, and the president ignored it, for years, and when caught claimed the order was invalid and that he has the authority to ignore it.
This case is about whether we are a nation that governs itself, or a nation of the governed. And terrorism has nothing to do with it at all. We can govern ourselves and fight Hitler and Tojo, we can govern ourselves and fight the insidious threat of the confederacy, but we can't govern ourselves and effectively fight Osama? That's BS, and every patriot of every political persuasion has to know that.
It is true that the President has authority to gather foriegn intelligence without a warrant. But your point is that he can gather this intelligence within the US, by spying on US persons. How is this "foriegn?"
The argument that the president is authorized to gather foriegn intelligence by wiretapping US persons within the United States negates the meaning of the word "foriegn." It means that the president's foreign policy authority, which is by necessity considerably broad, is authority that can be used against the sovereign - the People of the United States - and within the borders of the United States. Where does the president's foriegn policy authority end? The argument you, and the president, are making is that it never ends - hence my hopefully understandable "hysterics."
We've discussed this earlier. "Foreign," in terms of FISA, is not limited to persons outside of the United States. To simply assert a priori, otherwise shows a disconcertingly shallow understanding of the issue -- this blog certainly deserves better! Unless you actually care to advance your case by reference to the statutes (and, let's call a spade a spade, you can't), you do your readers a disservice by ignoring the statutes.
My argument most certainly is not that "it never ends." It's that where (as here) it is not limited by U.S. law, it ends when the American people vote to elect a new Executive. Pretending that the law proscribes things that it does not proscribe -- or, even more bizarrely, that FISA can trump the Constitution -- is no worthy defense of liberty.
JD later argued that a US citizen or legal resident who is part of such a corporation or association would still be exempt from surveillance. Such a provision simply is not supported by the statute: After all, "U.S. person" is defined with reference to "foreign power" -- not the other way around.
I'm not sure about what "legislative history" you're talking about, but the face of the statutory text says plenty. "Foreign intelligence" can very well include U.S. persons -- either when they are part of a "foreign power" or where they are "U.S. persons" and satisfy particular circumstances.
I agree it is weak. But it is important to acknowledge that the President is not making the case with this argument that he can defy congress, he is arguing that they gave him the authority when they passed the authorization for military action.
The problem with this argument is that FISA anticipates wartime conditions and allows the Preident 15 days after a declaration of war to collect intelligence outside its provisisons. FISA was signed into law by the President and has been the law through several congressionally authorized military actions. No other president has taken it upon himself to violate it. No claim has been made, even now, that it is unconstitutional.
The claim seems to give the President the authority to conduct electronic surveillance without regard to any act of congress simply by declaring its purpose to be military or to assist him in conducting foreign policy. Neither congress nor the courts have any right to review those decisions.
Since it appears that some of the people whose communications were monitored turned out not to have anything to do with Al Qaeda or terrorism, there is really no limit on the President at all. For instance, if the President or his aides decided it might be useful to the conduct of foreign policy to know what a congressional aide was telling his boss, he could tap into that conversation. That may sound extreme, but essentially the only constraint on a President preventing it is self-restraint. There is no review of the decisions he makes.
Adam makes the 1L mistake of defining US person by what it is NOT (a US person is not an association or corporation which is a foreign power) and then concludes that, because spying on foreign powers does not require a warrant, any US persons who belong to such associations or corporations also have no rights and may be spied upon without a warrant. He then suggests I advance my case by reference to statutes.
Well, here goes (from FISA):
There seems to be a lot of attention paid to whether or not these "foreign powers" include US persons, and if they contain a substantial number of US persons, the president can't conduct warrantless surveillance within the US even of a foreign power. That may be going too far, and the president might have the authority to spy on a foreign power even if it is composed substantially of US persons because Congress can't forbid it - but Adam, that isn't what is alleged (and admitted) to have happened. He spied on US persons, and admitted doing so.
Well, what about terrorism - perhaps international terrorist includes terrorists who operate internationally and are in the US? Adam says that as agents of a foriegn power they can be spied upon without a warrant. Can they? Well, the STATUTE says:
So US persons can't be spied upon without a warrant even if they are terrorists.
Adam then says that "U.S. person is defined with reference to foreign power, not the other way around." Leaving aside the clear definitions of foreign power defined with reference to US persons (above), how is US person defined by statute?
Thus, Adam, the STATUTE defines US persons as citizens of the US or lawful aliens or US corporations, and excludes only corporations or associations of foriegn powers. And, foriegn powers are defined by reference to US persons, and vice versa - in short, they are by definition not the same thing.
The president is not accused (and has never denied) spying on foriegn powers. If he isn't he should be impeached for THAT. He damn well better be spying on them, we are at war.
The president has admitted, Adam, to spying on US persons - not because they are agents of foriegn powers, which is permitted, but because he says he needs to do so. He does not justify his behavior by claiming his actions were lawful according to FISA (and thus neither should you) but because he says he can ignore FISA, either because of the authorization for the use of force (discussed above) or as inherent in his authority as commander in chief even without such authorization. In short, in wartime the president claims he can spy on US persons, FISA be damned.
The government's authority under the Foreign Intelligence Surveillance Act (FISA) to conduct surveillance of a "United States person," as opposed to a foreign national or foreign power, in order to obtain information necessary to the ability of the United States to protect against international terrorism, pertains to class of information that is manifestly broader than that comprising information necessary for the United States to protect itself against such dangers. U.S. v. Johnson, 952 F.2d 565 (1991), rehearing denied, certiorari denied 506 U.S. 816.
By the way, FISA is part of Title 50 of the US Code. Title 50 is entitled "War and National Defense." For the president to claim FISA does not apply in war, when the law itself is part of the US Code for "War and National Defense" is a travesty.
I hope this helps, Adam. Generally I tend toward discussion big picture issues and assume readers have done their "homework" on these issues, but you were not the first, or the fourth, to suggest what you did, and thus your interpretation of what took place was reasonable, but wrong (again, you were not alone). Thanks for your comments.
From the available descriptions of the warrantless surveillance
program, it seems 99% certain that it involved monitoring of
communications involving many US persons (and very probably
US citizens) who had only very tenuous and indirect links to
terrorist organizations. If thousands of people were
monitored, as has been reported, but the number of those
arrested and/or prosecuted is very much less (perhaps
10-50 ?) then the program is illegal. The constitution,
as it has been interpreted for many years, doesn't allow you
to engage in a fishing expedition without providing
evidence of probable cause that satisfies a judge.
An "agent of a foreign power" is defined at 50 U.S.C. 1801(b). The definition has two parts, (1) and (2). They are written in the disjunctive; a person need satisfy only one of the two definitions in order to be an "agent ...". The first definition, Section 1801(b)(1) excludes "U.S. persons". But the second definition, Section 1801(b)(2), does not:
I think that all of the foregoing should make pretty clear that (1) JD is correct, he and I do have very different definitions of "foreign intelligence", and (2) that mine -- not his -- is rooted in FISA. His definition certainly makes sense in a non-technical sense, but if we're going to discuss whether or not certain surveillance was "illegal" we need to take technical definitions with the utmost seriousness. Glib off-handisms add no value to this crucial national debate.
Also, your italicized definitions further reinforce my point: They note that "foreign powers" can be composed of U.S. persons, but that surveillance of such entitities requires a warrant when the foreign power is substantially composed of U.S. persons. Therefore, surveillance of foreign powers composed of, inter alia, U.S. persons yet not substantially composed of U.S. persons requires no warrant.
Also, while you refer to the STATUTE's definition of (at Section 1801(b)(1)) "agent of a foreign power," you quote only the first half of that definition and ignore the fact that that provision is written in the disjunctive (Section 1801(b)(1) ends with an "or". Someone who qualifies under Section 1801(b)(2) is an "agent ...", and 1801(b)(2) applies to all persons; it does not exclude "U.S. persons".
I think it is obvious that sometimes US persons are going to have information useful to foreign intelligence. However, the provisions of FISA makes warrantless surveillance illegal unless the Attorney General certifies that the surveillance does not include US Persons. If it does, they need to get a warrant.
Thus international terrorists are foreign powers.
“Agents of a foreign power” is defined as not including US persons even when they engage in international terrorism, but Adam is right that it is in the disjunctive, and agents of a foreign power is also defined as:
These two articles appear to be directly in conflict, but as any attorney can tell you, laws are interpreted to avoid negating any part of them, and if a reasonable interpretation can be arrived at that does not negate the law or make it unconstitutional, that is the interpretation used.
Given that the definition of “agent of a foreign power” specifically excludes US persons even when engaged in international terrorism, and then immediately defined “agent of a foreign power” as including “any person who… engages in international terrorism” we are left with two options. One is to interpret the language that excludes US persons as nugatory – short for “ignore it as meaningless” because the word "any" means "any," and the other option is to interpret the language as first defining what an agent of a foreign power is NOT, and then defining what an agent of a foreign power IS. Thus an agent of a foreign power does not include US persons involved in international terrorism, but does include any people involved in international terrorism - that is, any OTHER people.
Why is this language there? To allow NON-US persons who engage in international terrorism to be defined as “agents of a foreign power” even when we can’t tell you who that “foreign power” actually is – which makes a great deal of sense given the nature of stateless actors who ignore international boundaries and don’t act on behalf of any recognized nation state, which was the older definition of a foreign power.
So, unless we strike as nugatory the language that specifically defines “agent of a foreign power” as NOT INCLUDING US PERSONS, the statute specifically excludes them. Because we can interpret the law to make sense without negating the language excluding US persons, there is no ambiguity in the language. US persons, even when engaged in international terrorism, are not agents of foriegn powers. They aren't our friends, we need to hunt them down and kill them too, but within the US a wiretap is needed to spy on US persons, while spying on non-US persons engaged in international terrorism does not require a warrant.
This is the part of the law that apparently was so "crippling" to our war on terror that the president simply ignored it.
And, again, we are counting how many angels fit on the head of a pin. The president has not asserted that his actions were within FISA. He has asserted that FISA does not apply to his actions because he is the commander in chief. He is not asserting surveillance of agents of a foreign power, he has admitted to spying in US persons who were NOT agents of a foreign power, but who might be involved in terrorism. Whether FISA would allow such spying is not the issue – many have puzzled why the president simply didn’t either follow FISA’s very loose procedures, or why he didn’t simply ask for clarification, or why he didn’t ask for a change in the law.
The bottom line is he simply didn’t. That was against the law, and our chief executive asserting he is above the law is pretty scary stuff – hence my “hysteria.”
True. Never said it wasn't. And AQ is certainly not composed substantially of US persons, thus we can bug a room that has AQ members in it, inside the US, without a warrant, even if the owner of the house where the meeting is taking place is a US citizen - even if the meeting includes US citizens. That shows you how broadly the surveillance power already was. But again, that is not the controversy. As I said, if the president is not spying on foreign powers he should get off his ass and start doing so - right now! Spying on foreign powers is allowed, legal, and pretty much mandatory for any commander in chief who wants to do his duty.
The controversy, however, is not about foreign powers. The problem is that he spied on US persons - not because they were part of a foriegn power composed of mostly foreigners, because they weren't. He spied on US persons whom he was NOT permitted to spy upon under FISA. He has admitted it. His defense is not that a few Americans were included in surveillance because they were members of foreign powers composed mostly of non-US persons. His defense is that he can ignore FISA as commander in chief.
He has admitted to spying on US persons - in violation of FISA - and all of these discussions of whether FISA was violated miss the point. He ADMITS it. He also says, so what, FISA doesn't apply to me. That is the problem, not whether he lawfully spied on foreign powers and that included a few US persons who were part of a terrorist organization - such actions are lawful and not in violation of FISA. The problem is his unlawful behavior, and his defense is not "I didn't violate FISA." His defense is "FISA sucks and I needed to ignore it in order to protect the American people."
No one sensible disputes the need for surveillance of foreign powers or foreign terrorist organizations, and FISA does not hinder this. Nor does anyone sensible dispute the need for surveillance of persons within the United States - with the appropriate and legally required review and permissions.
And stop it with the silly arguments about whether spying on our enemies is allowed. It is. It is even approved of with enthusiasm - which is why the NSA and other groups get lots of money.
But there are a few rules - not that hard to follow - that are required in specific circumstances.
What the administration is disputing is those areas, defined by FISA, in which a warrant is called for AND NORMALLY EASILY GOTTEN.
The only reasons I can see for the Administration to attempt to circumvent FISA are:
1) They are using overly broad data mining techniques already rejected by Congress, that even the FISA courts would not approve.
2) They know that the techniques they are using are so obtrusive and over the top that even a Republican dominated Congress that has been extremely deferential to the Administration on everything related to the "GWOT" wouldn't swallow them - even in closed session. Apparently they couldn't even consider approaching just the (whole) House and Senate Intelligence committees in closed session.
Alternate based on the fact that the FBI brass couldn't be bothered to seek a FISA warrant to go after the 9/11 conspirators before 9/11 despite urgent requests from field agents:
3) They are too lazy and arrogant to be bothered to meet even the absurdly easy requirements of the FISA courts or actually attempt to build support in Congress for changes to FISA. That might be hard work.
Now - which is it? Or is there another explanation? Like that the data mining generates lots of information that, in hands not having to worry about minimal oversight, could be turned to internal politica advantage? That is why the original and amended FISA laws were created.
And the claim taht asking for an exception to FISA revealing something critical? That's bull - no specific techniques would have to be revealed outside of closed session and any foreign power or terrorist organization assuming that warrants would prevent them from being listened to is probably not someone we really need to worry about.
No. He hasn't admitted it. You are simply ignoring the claim that the surveillance was authorized by congress when they authorized military action against Al Qaeda. If that is true then what he is doing does not violate FISA. So he has not admitted to a violation of FISA, he is claiming that he was authorized by statute outside FISA. I think that argument is pretty weak if it has any substance at all, but that is still the defense he is making.
As far as I can tell, no one in the administration has actually claimed FISA is unconstitutional. Although that is pretty clearly their fallback position if the nonsense about congressional authorization falls through.
Ross, you are right - in a way. I wasn't ignoring that claim, but you are right that if the spying was statutorily authorized, then FISA permits it. The statutory authorization need not come from FISA itself. My point is that this spying was not legal based on FISA alone, and now we are into the heart of the matter - does the authority of the commander in chief allow him to ignore FISA?
But you are right, if he does have that authority then yes, FISA was not violated. Why? Because if he has that authority due to the authorization to use force, he has the authority to anything he wants to anybody anywhere under any circumstances, all existing laws notwithstanding. He would be, as I have said, a wartime dictator in an undeclared war with no way to determine when the war ends.
If the president has the legal authority to wiretap despite FISA's clear language to the contrary, that authority is the ultimate blank check. It need not (and lets face it, will not) stop at wiretaps. The next thing you know he can arrest a US citizen and hold him in military custody without access to a lawyer, for years, without even being CHARGED, all based on the president's unilateral determination that this citizen is a terrorist.
But I suppose I am taking this "slippery slope" argument too far....
I thought he already claimed that authority. But I think the administration has realized that a claim relying solely on his constitutional authority in direct contradiction of a law passed by congress and signed by the President is unlikely to pass court muster. Or at least much less likely than an interpretation that the congress gave him broad powers when it passed the authorization for use of military force against Al Qaeda.
If the President has the power to conduct warrantless electronic surveillance, I would assume that legal theory would extend to warrantless physical searches, opening mail, etc. Its not even clear why this authority would be limited by who was the target. While there is no evidence he has used that authority, it appears he could have.
What is disturbing about this claim is that it was done essentially in secret with the individual members of congress who were informed legally prevented from sharing the information either with their colleagues or the public. We have no way of knowing if there are other equally intrusive activities that the President believes were authorized. The recent revelations that the military had been conducting surveillance of Greenpeace and Quaker meetings would indicate the net being cast could be very wide indeed.
For the category b people like the comment upthread ("Given modern communication technology, there really is no limit on how broadly one can cast the fishing net if one chooses"), don't worry. Actually, the opposite is true. The limitation is the capacity to monitor--and it only gets more impossible every day. 2M communications an hour/48M a day is not even a rounding error in communications traffic. By googling, I provide the following (dated) examples:
In December 2004, NEW YORK--The world's largest Internet service provider believes spammers are starting to give up--at least when it comes to sending junk to its subscribers. The total number of e-mail messages destined for America Online Inc. members averaged 1.6 billion in November a day, down from 2.1 billion daily a year earlier, the company said Monday. The drop was almost entirely in spam, AOL said.
Verizon Wireless has 31.5 million customers.
Cingular Wireless has 52.3 million customers.
Two years ago, the number of cell phones subscribers in the US was 159 million. And then there is this from 2003:
Table 7.1: United States Fixed Telephone Line Usage (in billions)
Year
Local Minutes
Intrastate Minutes
Interstate Minutes
Total Dial Equipment Minutes
1999
3,378
452
585
4,414 billion (74 billion hours)
2000
3,909
472
616
4,998 billion (83 billion hours)
2001
3,784
420
615
4,819 billion (80 billion hours)
Source: Federal Communications Commission Trends in Telephone Service, August 2003
1. I was wrong about one big aspect of my argument last night. Although 1801(i)'s definition of "U.S. person" excludes "foreign powers" as defined by 1801(a), it only excludes foreign powers defined by 1801(a)(1), (2), and (3). Therefore, although persons otherwise meeting the qualifications of "U.S. person" are not covered by the statute where they are monitored as part of an association or corporation which is a foreign power under (a)(1)-(3), persons affiliated with "terrorist" groups are not "foreign powers."
2. On a point that is now mooted by the first point, JD is completely wrong when he suggests that 1801(b)(2), defining "agent of a foreign power" as "any person who ...", should be read out of the statute because it semeingly conflicts with 1801(b)(1), which defines "agent of a foreign power" as "any person other than a United States person." The provisions were written in the alternative; therefore, Congress's obvious decision was to allow U.S. persons to qualify as an "agent of a foreign power" under 1801(b)(2). If a U.S. person satisfies 1801(b)(2), information relating to and necessary to the ability of the U.S. to protect against attack or terrorism or clandestine activities qualifies as "foreign intelligence information" under 1801(e)(1). Therefore, such information is subject to the electronic surveillance provision of 1802.
But, again, given my first point, the second point is largely moot.
As for
That is correct, and I totally agree with those decisions (not that anyone cares). That is not what happened here, though. As I have repeatedly said, I WANT him to spy on pretty much everybody, including Canada and Canadian corporations. That is fine because it might help the US and won't harm US Citizens or violate their rights.
But, as I have said, that is not what happened here. Nobody is challenging the president's right to spy as authorized by FISA, including spying on foreign powers. That is not what happened here.
The president is being criticized for spying on US persons without a warrant. Spying by the US government on its own citizens is regulated by the Constitution, which forbids "unreasonable search," and by FISA and the courts, which define what "unreasonable" means. FISA lays out the law on when searches can be conducted on US citizens when foreign intelligence is involved - thus conversations on "it was ok because foreign intelligence or foreign powers were involved" miss the very point of the law. Yes, the law on Foreign Intelligence and Surveillance, titled, surprisingly enough, the Foreign Intelligence and Surveillance Act (FISA), involves collecting foreign intelligence inside the US. What FISA did was limit the power of the president to spy on US citizens even when international terrorism is involved. The president has no inherent authority to spy on US citizens without a warrant, or we would negate the "unreasonable search" prohibition in the US Constitution.
Thus the president's argument is actually facile.
If the Constitution originally gave presidents the inherent authority to spy on US citizens (an argument Mr. Bush is making) the amendments to the US Constitution in the Bill of Rights took it back from him by forbidding unreasonable searches, and no, the president does NOT get to decide what is reasonable and what is unreasonable any more than he gets to determine what "due process" really means.
If the president has the authority to spy on US citizens because of Congress's grant of authority in the Authorization to Use Force (which he claims) then Title 50 of the US Code, entitled "War and National Defense," is made void whenever we go to war or when matters of national defense are at stake. If this sounds strange, that is because it is strange - and wrong, and pretty dangerous. It also seems to have been a great surprise to Congress, the very body that authorized force but did not appear to think it included any authorization to spy on US citizens without a warrant.
Thus there is no getting around it. The president either violated FISA, and should be impeached for repeatedly breaking the law for years, or the president has the authority to do anything whenever Congress authorizes the use of force - a wartime dictatorship.
Some call this "liberal paranoia." Well, to quote a not-very-liberal Barry Goldwater: "I would remind you that extremism in the defense of liberty is no vice."
Another quote by the conservative Mr. Goldwater, who by the way served 37 years in the military, including active duty and reserve duty:
What I don't understand is why you think the monitoring of that volume of communication is beyond the capability of modern technology. Could someone read every message? No. But that is hardly necessary as google demonstrates.
I think this goes to the heart of the argument. Can we rely on the self-restraint of those in power to protect our rights? Our founders didn't think so and history supports them in that view.
I have assumed the reason for allowing comments here is to foster discussion. And discussion often leads to disagreement which leads to arguements.
To me, this issue means the following:
a) The President (Executive branch) decided who to spy on (Al-Qaeda operatives in the US, suspicious US persons, anti-war protesters, my grandmother (who I do not believe is a terrorist) among all those persons who made an international phone call. If you made an international phone call in the last few years, they could have listened to you. For the record, there is no evidence this power was abused because there is no evidence of who was tapped.
b) Because this activity was not subject to Judicial (FISA) or Legislative oversight (a broad statement about what you're doing does not approximate oversight), even retroactively as FISA allows, then any party to an international communication could be spied upon, regardless of ties to "Foreign Powers". An argument against this is naive - if unchecked power is possessed, we must assume it could be or will be used. Unchecked power is what Our Constitution is designed to prevent, remember.
c) This boils down to how much you "trust" the President (Executive branch). Before anyone says "completely", let me ask - Did you trust Bill Clinton? Will you trust Hillary Clinton, if she became president? I didn't think so. So don't sit back and allow one President to have powers that you wouldn't want the following Chief Executives to have as well.
d) It's not about trust anyway. Our Constitution exists so that We shouldn't need to trust the President.
e) No one is really arguing that the President doesn't have the power to conduct surveillance. It is surveillance without oversight that is the problem. What does the Executive have to fear by giving a list of tapped communications retroactively to the FISA court, if all those targets, US persons or not, can be justified?
I just hope my Grandmother isn't on that list
I just have one nit-picky thing (I am a lawyer, after all, and there is a reason for some of the jokes about us):
You say "It is surveillance without oversight that is the problem." Well, it is A problem, but not THE problem. My problem is not with unchecked surveillance powers, it is with unchecked executive powers, period. If the president has the power to decide what powers he was given by the authorization to use force, there is nothing to prevent him from deciding to do anything he wants. As Nixon said, it is legal if the president says it is legal. Well, Nixon at least had the grace to resign rather than be impeached when the People told him his interpretation of our Constitution was as wrong as it could be. I am sure that Mr. Bush would fight to the end regardless of the damage it would do our nation.
The problem is simply this: the president has decided that the Authorization for the Use of Force conferred all of Congress's powers to him. He is now a legislating executive, able to amend or ignore laws at will in the name of fighting terrorism. I imagine he is reading up on Andrew Jackson at this moment, because the next stop (if we the People don't prevent it) is a fight with the judicial branch.
Osama scares me, but I should never have to be afraid of my own president. Sadly, I am.
And he hit on a key issue. Are we talking about the Office of the President, or the person occupying that office? Ollie North confused the two, and ran amok.
Those of you who hold or have held commissions in the military should reread the part that stipulates that the commission requires your obedience to the lwaful orders of each and every president who is in office while you serve. There is a reason for this. The orders come from the President as an official, not Joe Schmuck the Rag Man who happened to get elected. It doesn't matter if it's the guy I voted for, the guy I voted against, be that person the Pope, the Dali Llama or Rabbi Moishe.
I want no one, liberal, conservative, Christian, Muslim, Jew, athiest, or flower worshipper invading my privacy without checks and balances. Why? Because I will never know the motives. What is publicly stated and privately held by the eavsedropper can be two completely different things, and no one can convince me they can determine accurately the latter. We therefore have Constitutional protections to provide, at least to the extent humanly possible, a modest protection from ill intentioned public officials.
While we will never be able to know accurately, my gut tells me that little or no earthshaking intel arose from these questionable wire taps. And while I cannot truly claim to know what all this secret skulking around is motivated by, my gut says it is the simple quest for power. Pure, raw and unchecked power.
Al
This President doesn't scare me (in this respect), but the possibility that anyone who comes after could expand and further abuse the precedent of the Executive branch being above (or not requiring) oversight does.
Your persistent assertion that the President's inherent authority to conduct foreign intelligence surveillance does not include the power to monitor U.S. citizens is puzzles me, because you do it without citing to any authority -- and for good reason! No authority backs it up; if anything, the authorities run the other way.
Contrary to your assertion that "The president has no inherent authority to spy on US citizens without a warrant," courts of appeals have held otherwise. U.S. v. Brown, 484 F.2d 418, 426 (5th Cir. 1973) (defendant convicted of firearms trafficking); U.S. v. Buck, 548 F.2d 871, 875-76 (9th Cir. 1977) (firearms violations). That these three cases precede FISA is of no import; they were decided on constitutional grounds, and a statute cannot modify the Constitution.
In another case, the Court affirmed a warrantless wiretap of a foreign agent's phone and affirmed the convictions of both the foreigner and a U.S. citizen, although both defendants challenged the search. U.S. v. Truong, 629 F.2d 908, 912-16 (4th Cir. 1980) ("executive can proceed without a warrant only if it is attempting primarily to obtain foreign intelligence from foreign powers or their assistants"). Note that both parties to a phone call have standing to challenge an illegal wiretap. United States v. Williams, 580 F.2d 578,583 (D.C. Cir. 1978) (noting that “it is legally irrelevant that the surveillance was unlawful”unless defendant can “show that it was directed at Him, that the Government intercepted Hisconversations or that the wiretapped communications occurred at least partly on His premises”). Therefore, Truong adjudicated both the foreigner's and citizen's rights; the opinion was not mistaken when it said "the defendants raise a substantial challenge ... by urging that the surveillance ... violated the Fourth Amendment."
Other cases involving non-citizens have states their holdings in absolute terms, with qualifying their holdings to note that they apply only non-citizens. In re Sealed Case, quoted extensively this week, is such a case. See also U.S. v. Butenko, 494 F.2d 593, 605 (3d Cir. 1974) (en banc).
Also note that in United States v. United States District Court, 407 U.S. 297, 309 &n.8 (1972), the Supreme Court noted that because "there is no evidence of any involvement, directly or indirectly, of a foreign power," that case involved "a group or organization ... composed of citizens of the United AStates and which has no significant connection with a foreign power," and that the Court would not extend its holding to a case "where it will be difficult to distinguish between 'domestic' and 'foreign' unlawful activities directed against the Government of the United States, where there is collaboration in varying degrees between domestic groups or organizations and agents or agencies of foreign powers." In other words, the Court expressly reserved the question of whether prior approval would be required in cases where domestic actors worked in conjunction with foreign powers.
In sum: Your bright-line distinction is unsupported by the case law. A numbers of courts of appeals have held directly contrary to your rule. Other courts, including the FIS Court of Review, have stated their "inherent authority" holdings without any qualification that their holdings were limited to non-citizen application. And the U.S. Supreme Court explicitly distinguished purely domestic cases from mixed domestic-foreign cases. In each of these cases, its occurrence before FISA's enactment is of no import, as the FISA statute cannot cut back on a Constitutional power. Cf. City of Boerne.
The weight of the law leans strongly in favor of my conclusion, and your a priori arguments do nothing to further your cause.