December 19, 2005

About those wiretaps and the constitutional separation of powers.

Condolezza Rice defends Bush's authorization of warrantless interception of telephone calls coming into the country from terrorists sources:
In Sunday talk show appearances, Ms. Rice said the program was intended to eliminate the "seam" between American intelligence operations overseas and law enforcement agencies at home.

"One of the most compelling outcomes of the 9/11 commission was that a seam had developed," Ms. Rice said on "Meet the Press" on NBC. "Our intelligence agencies looked out; our law enforcement agencies looked in. And people could - terrorists could - exploit the seam between them."...

Ms. Rice also said Mr. Bush decided to skirt the normal process of obtaining court-approved search warrants for the surveillance because it was too cumbersome for fast-paced counterterrorism investigations....

Under the Foreign Intelligence Surveillance Act of 1978, or FISA, the Federal Bureau of Investigation and the National Security Agency must obtain search warrants from a special court before conducting electronic surveillance of people suspected to be terrorists or spies. Ms. Rice said the administration believed that it needed greater agility in investigating terrorism suspects than was possible through that process.

"These are stateless networks of people who communicate, and communicate in much more fluid ways," she said.
Obviously, there is a tremendous amount of controversy about whether these justifications are sufficient. You can say the President ought to have had specific authorization from Congress for what he did, and you might imagine a court sorting through the problem, looking at the legislation that does exist and examining whether the President did things that go beyond that legislation and, if he did, whether he has freestanding executive powers to support his actions. However, what is needed now is for Congress to examine the problem and take a position in response. And, indeed, Congress will do that, with hearings beginning soon:
Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Senate Judiciary Committee, said he was not certain whether the eavesdropping program was legal. He said he expected to hold hearings on it early next year.

On CNN on Sunday, Mr. Specter struck a cautious tone. "Let's not jump to too many conclusions," he said. "Let's look at it analytically. Let's have oversight hearings, and let's find out exactly what went on."

"Whether it was legal, I think, is a matter that has to be examined," Mr. Specter said. "When you deal with issues as to legality, what advice the president got from the attorney general and others in the Department of Justice, that's a matter within the traditional purview of the Judiciary Committee."
Members of Congress were briefed about the program in the past and did not see fit to take a position about it one way or the other. They were content to let the President act and but feel pressured to do something now that the program is no longer secret. Let's see what they do.

We have a developing conflict between Congress and the Presidency. Congress can decide if it stands in opposition to intercepting these phone calls without a warrant. There is no need for courts to become involved in any asserted separation of powers problem until Congress takes a position. The legal question whether separation of powers has been violated at this point is complicated and interesting, but there is no reason for any court to answer it, when Congress is able to go on record about whether it wants the President to be able to do these things or not.

So, I look forward to the hearings, which I hope will cover the question of who blew the secret and why.

UPDATE: In a press conference today, President Bush defends what the NYT refers to as his "U.S. Spy Program."

ANOTHER UPDATE: Orin Kerr has a long post that tries to begin to untangle the difficult legal threads of constitutional and statutory law. He concludes that "the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act." I think that at the very least fair-minded observers should see that the problem is complex. Cries that the program is blatantly unconstitutional (or obviously constitutional) should be recognized as unhelpful.

184 comments:

EddieP said...

Will any US citizen injured by the President's FISA actions over the last four years please raise his or her hands? There is a multitude of reporters in the Bush hating MSM ready to write your story.

Anyone?

Crickets

37921 said...

I had to chuckle at the headline on one of the AP stories I saw last week: "Shocked Senate Demands Spy Probe".

Shocked, indeed. In the manner of Capt. Louie Renault.

Art said...

As far as the question of "who leaked" goes, from what I can tell from the NY Times story the NSA staff felt they were being asked to break the law. They tried to get congress to take action. When that failed, they went to the Times. The Times sat on the story. The staff apparently kept coming back saying, "Things are getting worse."

What I'm wondering is whether Bush didn't go to the intelligence court because he's lazy, thinks he's simply above it, or because he suspected the court would turn him down. The court is apparently pretty lenient in granting approvals.

As far as Eddiep's question: You're assuming people know they've been wiretapped.

Wonderland said...

Eddiep:

No one *can* raise their hand because the program is secret! That is, there are very few people outside of the NSA and White House who know who has been spied upon. I suggest that the Senate Intelligence Committee demand to see the list of persons who were surveilled. It might have some interesting names on it. Plus, it's important to verify whether the President's recent statement that only those with "clear ties to Al Qaeda" were targeted is true.

37921:

As far as I know, and I think reports bear this out (and please correct if I'm wrong), only the ranking members of the intelligence committee (Roberts and Rockefeller) and in each House (Hastert, Frist, Pelosi, and Reid) were briefed on the program. It is not public knowledge that they had any input or ability to affirmatively prevent operation of the program. And -- as is borne out by all these calls for investigation of the leaks -- it would have been illegal for them to divuge publicly their knowledge of the program.

me said...

This is just another distraction, which will be manipulated by the democrats.

What would be best for the country is if the democrats would use their tiny political capital to work with the republicans and put together a cohesive, responsible and feasible plan to combat potential terrorists. So far little has been done to stop a major terrorist attack in the U.S.

We need a single national I.D. system. We need a coheren plan to protect our water supply, bridges, airports, etc.

HaloJonesFan said...

Why is the Congress getting involved in this? I'd think it would go to the Supreme Court, because it seems more like a question of where the First Amendment stops and the Fourth Amendment starts. Does the Bill of Rights guarantee that speech is not only free but inherently private? It's true that wiretaps and such have traditionally required judicial approval, but is that Constitutionally-required doctrine or is it just accepted practice?

amn said...

After reading the coverage of this issue I'm left with two questions:

1) If warrantless wire taps in this situation are completely necessary and harmless, as eddiep and many others have asserted, why wasn't it built into the Patriot Act?

2) If the courts can't act until Congress has taken action, is there any limit to presidential powers when he is operating with a like-minded Congress? In this case, until Congress says otherwise, isn't the passage of FISA evidence that the President is acting against the will of Congress?

Ann Althouse said...

Halojones: Keep the Fourth Amendment question separate from the separation of powers question discussed in the linked article. The complaints that Congress didn't authorize it are about separation of powers. The Fourth Amendment problem would take a different analysis, and the President would argue that the situation falls within an exception to the warrant requirement (exigent circumstances).

AMN: I'm saying the separation of powers question isn't ripe to the extent it is raised by Congress, because Congress has powers of its own that it can and should use before running to the courts. They have the political power and, as a body, they've got to commit. Individual members of Congress can't complain that their power is being eroded by the President's assumption of power. We're free to talk about it, and politicians can talk about it too, but it's not something they can take to the courts. An individual harmed by a wiretap could bring a case, but that's much less likely to happen for various, rather obvious reasons, at least not unless someone is prosecuted.

Scipio said...

I'll bet anyone 20,000 francs that none of the Congressional leaders who were briefed on this want detailed hearings.

On second thought, better make that 10,000 francs; I'm just a poor corrupt official.

Mark said...

Of course, the elephant in the room is that this program is blatantly illegal, unless one thinks that FISA law is unconstitutional. FISA law expressly provides that the ONLY way to spy domestically is through FISA Court approval. I believe it uses the word "exclusively." So, this program was in obvious violation of FISA law, whatever you think of its merits.
The President's attempt to invoke Article II of the Constitution and the Congressional authorization of military force in Iraq is laughable; neither of those say a single word about wiretapping.

Now, if Bush went to Congress and proposed to change the law with regard to suspected Al Qaeda members, I would probably support it. But Bush feels so above the laws and the Constitution that he didn't feel it necessary to get Congressional approval. Principled conservatives, such as Professor Bainbridge, understand the dangers of unchecked executive. Unfortunately, some people are so enamored with Bush that they do not demand any accountability from him. Sad.

C.Y. said...

amn,

In response to your question "If warrantless wire taps in this situation are completely necessary and harmless, as eddiep and many others have asserted, why wasn't it built into the Patriot Act?
"
I would tender the simple explanation that by putting such information in a public forum, it would tip off the terrorists as to what kind of specific intelligence gathering our government was envisioning.

If you believe. Sec. State Rice's explanation yesterday (And some won't, but I find it quite logical) that terrorists were conducting their communications in the gaps they perceived between the borders of domestic and international surveillance efforts.

White House Counsel, two Attorney's General, a slew of Justice Department lawyers and the FISA judges who apparently knew of the program all apparently felt this executive order was legal and under Bush's constitutional authority.

If the courts can't act until Congress has taken action, is there any limit to presidential powers when he is operating with a like-minded Congress?

Obviously. Bush cannot exceed his Constitutional powers. This executive order does apparently exceed that authority according to many legal eagles cited above who are familiar with the specifics of the order, something I hasten to add that none of us pundits have access to.

In this case, until Congress says otherwise, isn't the passage of FISA evidence that the President is acting against the will of Congress?

No.

Al Maviva said...

Harry Reid's comments were interesting. He was apparently aware of the program. As a former prosecutor he is also no doubt aware of the existence of the federal Whistleblower Protection Act, which protects individuals who come forward with information relating to government wrongdoing.

Reid stated that he wanted to see the leakers "prosecuted, really prosecuted to the fullest extent of the law." If the program was illegal in his estimation, then the leakers were actually whistleblowers and should be entitled to statutory protections. He would be aware of this issue because the Dems have tried repeatedly this session to pass stronger and stronger versions of the WPA.

Take from that what you will.

vnjagvet said...

Mark, your analysis begs the question, although you present it as if there were no issues to be understood.

According to news reports, this was not "spying domestically", but spying on communications of foregn powers and their agents wherever found.

That is one of the key divides recognized by FISA. The precise line between the divide is not defined by Congress.

Often tough questions on interstices like this are left for another day.

Apparently, that day is upon us.

Ann Althouse said...

Al Malviva: You can't reveal national security secrets and just say you're a whistleblower. The leak is really outrageous, and people who don't care about it strike me as flat-out partisans who care more about politics than national security. It's quite sickening.

Several people here are forgetting about the President's powers as Commander in Chief. The idea that Congress wins in a standoff is NOT at all clear. And the question whether we've got a standoff is also NOT clear. Those who are saying what Bush did is "blatantly" unconstitutional are either just repeating what they've heard, not up on constitutional law, or big partisans spreading propanganda, or something else that I'm failing to think of. But they are NOT telling it straight. And it's only because of a reprehensible leak that the President is now in the position of having to counter all these free-swinging arguments that people have unwittingly bought way too early.

Wake up and do some thinking for yourself or at least have the decency to wait to hear the facts and argument developed properly.

Mark said...

Vnjagvet,
With respect, I don't think so. The FISA law is pretty clear. Here's the exact words from the statute:

Title 50, Chapter 36, par. 1809:

(a) Prohibited activities
A person is guilty of an offense if he intentionally— (1) engages in electronic surveillance under color of law except as authorized by statute


Clearly, Bush engaged in a) ordering electronis surveillance;
b) under color of law; 3) in a way which was not authorized by statute.
Case closed.

John(classic) said...

I think this is a very difficult problem for a representative democracy.


Let's assume an example that is "blown". Usama bin Laden used to use a staellite phone. Because of some technical properties of how a satellite call is handled it is possible to determine the location of the person using the phone. We used that. It was published in the press. Usama stopped calling home.

Now how would the administration have gone to Congress and said "We want a law that let's us require phone companies to give us data that allows us to pinpoint the location of satellite phone users?" without tipping Usama off?

Very difficult for Congress to act and preserve secrecy, particularly given the present make up and proclivities of individual members.


A second problem is that the technology has outstripped the ability of the courts (in a "warrant" situation) to respond.

A several decades old example might help here. Submarines used to be identifiable by certain electronic peculiarities of their radio transmissions. Because a soviet ballistic missile submarine had a ding in its antenna, a slightly off frequency transmitter, or a loose terminal conmnector, we could identify calls as belonging to the same boat and gradually obtain an idea of the area it could be found in. That was critical info to have in the event of war, as we would need to suppress or sink that sub before it launched a missile against Chicago. The soviets learned this, and would introduce deliberate anomalies in their signals. However, by analyzing a great deal of traffic we could reidentlfy the submarine by patterns in whom it talked to, when, and where, and once again tag its operating area. However, to do that involved computer analysis of all the traffic originating in a broad area.

Now let us suppose we do something similar with cell phones. We know that Terrorist A uses disposable cell phones. We know he used a particular phone at a particular time. We might identify the new phone he is using by analyzing the calls made on the old phone, and sifting through a huge amount of intercepted information to find the new cell phone, e.g. look on the old phone, he has a habit of calling the weather information number every morning, he calls Dry Cleaner X, and he calls this garage, -- can we look at who called these places and find his new phone?

Now how does that fit within a "need a warrant" situation? We are intercepting innocent calls in order to find the bad guy's phone.

Warrants don't really work very well when what one wants to do is feed a huge amount of info into a camputer and have it, by analyzing all the info, pinpoint something of interest. But that is how some of the technology works.

Speed is also a problem. If a squad leader in Iraq finds a lap top with a list of phone numbers on it, those phone numbers are only useful intelligence tools for intercepts for the length of time it takes someone to run, pantingly, to his leader and say "Anwar was killed, they got his laptop.". Maybe a FISA court can respond in hours with a warrant to tap that number-- but hours doesn't do it.

Maybe what we are really looking at consitutionally is a Terry v. Ohio situation. The cop needs to frisk the suspicious guy, right now.

I think we need to get out of our present rut, and think of some imaginative ways to create an ongoing system of balance that works.

Mark said...

Wow, Ann. I guess Arlen Specter who said this program is troublesome and improper, and promised hearings is some partisan Democrat, or is not up on constitutional law, or mindless repeating what others have said.
I submit that it's precisely the opposite: the people who are defending the way Bush implemented this program are undermining constitutional liberties and checks on presidential power.
How in the world it is not clear that the wiretapping violated FISA act? Or do you subsribe to the notion that the presidential authority as commander in chief knows no bounds?

Ann Althouse said...

Mark: You don't give enough text to understand the text that you give, so your "case closed" assertion is tendentious. Your tone undermines your credibility with me.

Ann Althouse said...

Mark, don't "wow Ann" me. Change your tone or risk deletion. Spector did not take a position that the President's actions were unconstitutional. He said ""Whether it was legal, I think, is a matter that has to be examined." So what you're saying doesn't even make sense. Shape up. Your last comment includes about five inaccurate statements and I'm not going to deal with them individually. I will just say that your writing here is subpar. Improve or risk deletion.

Mark said...

By the way, I applaud people who leaked this program; they care more about the law than the chief law enforcement officer of the United States who swore to uphold the constitution and the laws.

Also, the claim that revealing the existence of this program is somehow helping the enemies is also laughable: they operate under assumption that their conversations are being monitored. Do you think they don't know that a FISA warrant is basically a rubberstamp? They don't care a slightest bit whether or not there's a warrant allowing the monitoring of their conversations.
WE, on the contrary, should care, not because of them, but because of US. The potential for the abuse of the power to wiretap without court orders is just too big, especially with this President who demonstrated that he is willing to read virtual unlimited executive power into the laws (witness memos arguing that the President has legal authority to order torture).

Wow, I keep getting amazed how blindly some people trust this President.

John(classic) said...

mark,

It would have been blatantly illegal to shoot down Flight 93 on September 11th (as we were prepared to try to do. It was likely blatantly illegal for some swabbie on the deck of the Arizona in 1941 to start firing his anti-aircraft gun without congressional authorixation.

The point is a simple one -- legality is not merely compliance with the statutes Congress may have passed.

The trick is how one balances and controls.

Mark said...

Hmm...I guess it's interesting that one can say that:

" Those who are saying what Bush did is "blatantly" unconstitutional are either just repeating what they've heard, not up on constitutional law, or big partisans spreading propanganda, or something else that I'm failing to think of. But they are NOT telling it straight."

Since it was me who said in the comments that I thought the program was blatantly unconstitutional, I took it personally.

I personally watched Specter on the Senate floor on Friday, so please don't accuse me of misrepresenting his words. Again, on Friday, Specter said that this program was improper and troublesome. He qualified his comments somewhat on CNN yesterday, but nevertheless I accurately described his position on Friday.

And my comment does not include any inaccuracies. You are free to disregard it; I've lost hope that you would have any objectivity in evaluating this President's actions. If I cannot say "Wow", I am sorry.

Anyone who wants to read FISA Act, can do so at this link. I challenge anyone to demonstrate how the Act supports the program. I don't think even President alleges that.
http://www.law.cornell.edu/uscode/html/uscode50/usc_sup_01_50_10_36_20_I.html

AnechoicRoom said...

Those planning and currently attmepting the murder of human beings must be laughing a laugh the world has never known. Themselves, they have little chance of infiltrating the highest levels of U.S. domestic intelligence agencies. But obviously, there is no need. They get their U.S. intelligence for free.

Courtesy of some of it's members and the NYT's and WaPO. Stupidity isn't a crime. Fine. And I'm not sure I'd even make it one. Maybe we should just invite an Al Qaeda representative for a first class, behind the scenes tour of the NSA, and CIA. And simply cut out the middlemen?

That's at least a sixty billion dollar per annum (CIA) savings right there. The NYT's or the WaPO's, continued vertical drop in readership will still arouse a: 'who cares' from all and sundry. And, if we start getting people used to the concept of their little girls wearing head to toe coverings in public. It will make the future transition just that much easier. Of course, if a Dem were Prez/or had been? Then the little pink ponies we would have been riding around on, would have protected us.

Allahu Akhbar.

wildaboutharrie said...

What I want to know is

1. why the NSA did not seek warrents AFTER they set up their emergency taps? Or why the President did not require this? I don't know if anyone would object to setting up a fast intercept on a suspicious phone line with no warrant (I certainly wouldn't) but why NO warrent after the fact?

2. What does "links to al Qaeda" mean, exactly?

Is anyone else dissatisfied with Pelosi's explanation so far? She's not keeping her job, is my guess.

Mark said...

John,

Of course, I agree with you. But the situation with these wiretaps is absolutely different from, say, ordering to shut down the plane.
When the plane is hijacked and is bound to destroy some buiding or whatever else, there's no time to seek to amend the law.
With wiretaps, President had all the time in the world to seek to amend FISA law. Also, it is not clear that such amendments were needed at all. The law is clear that wiretapping can go on for 72 hours without court warrant, on the condition that the warrant is obtained after the fact. If the wiretapping was justified, there's no way in the world that the FISA court (which largely rubberstamps warrant requests) would have denied the warrant.
The problem is this President does not accept any checks on his power and is seeking virtually unlimited authority under the color of his title as Commander in Chief.

Mark said...

Here are some links to Senator Specter's comments on Friday:

"Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said he would call congressional hearings as soon as possible. Warrantless surveillance of U.S. citizens is "wrong, and it can't be condoned at all," he said."

http://www.afterdowningstreet.org/?q=node/5676

Or here:
Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said he will hold congressional hearings as soon as possible. Warrantless surveillance of U.S. citizens is "wrong, and it can't be condoned at all," he said.

In 2002, according to former officials familiar with the policy, Bush signed an executive order granting new surveillance powers to the National Security Agency -- the branch of the U.S. intelligence services responsible for international eavesdropping.

"I want to know precisely what they did: how NSA utilized their technical equipment, whose conversations they overheard, how many conversations they overheard, what they did with the material, what purported justification there was ... and we will go from there," Specter said.

http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2005/12/17/MNGN6G9NE51.DTL

WisJoe said...

Anyone who has practiced criminal law knows that obtaining a warrant is almost as easy as indicting a ham sandwich and much quicker.

Sloanasaurus said...

If you capture a bad guy in Pakistan, you probably have less than 12-24 hours to act on the bad guy's "phonelist" before word gets out that he is captured. In some case you may only have hours. Once the word is out, all the badguy's friends (including those living in the U.S. will know their cover is blown. Thus, you need to act immediatly and wire tap anyone on his phone list because it is the only opportunity to get good information.

Bush was right to wire tap and ahd the right under the powers granted to him to prosecute the war on terror. We can look after the fact to see if he abused his power.

Mark said...

Sloanasaurus:

Of course, you should be able to "act on the bad guy's phonelist." But after you act on it, you have 72 hours to explain your actions to a FISA court and get a warrant. Why is there any need to circumvent this requirement?

wildaboutharrie said...

Sloan, I agree absolutely, but why do you think the decision was made not to get warrants after the fact? This is what is troubling to me.

sparky said...
This comment has been removed by a blog administrator.
SWBarns said...

Wow, Mark; I think you ought to read statutes before you rely upon them. A resonable interpretation of 50 U.S.C. 1801 and 1802 justifies the actions of the preseident.

Under the law "Foriegn Power" does not get the rights of a "United States person" and if you are part of a group engaged in terrrorism or activities in preparation [for terrorism] your communications may be monitored lawfully.

The rest of this is a long and complicated thing called a statute, sometime lawyers read them before determining that laws have been broke.

50 USC 1802--(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

Where-

50 USC 1801(a) “Foreign power” means—(4) a group engaged in ***international terrorism or activities in preparation therefor;

50 USC 1801(i)“United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States,
***but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

Sorry if this sounds snippy but you really have been drinking the Koolaide.

Mark said...

You're right, your comment is pretty snippy. Also, it is wrong on the law. First, note that the President does not allege that FISA justifies his actions. Instead, he relies on Article II of the Constitution and the Congressional authorization of the war in Iraq. Why would he not justify it under FISA if FISA supports it, as you claim.
Well, the answer is, of course, that FISA does not allow it.

If you read the statute carefully, you'd notice that 50 USC 1802 (1)(B) requires that there is no "substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party". Of course, the Attorney General could not make such a certification since there was a substantial likelihood that one of the parties was a United States person (e.g., Al Qaeda sympathizer).
That is exactly why nobody in the Administration justifies the program as legal under FISA.


Next time you want to be snippy, make sure that at least you're right on the law.

Stiles said...

If this were an emergency, say much closer in time to 9/11, I'd be inclined to be deferential to extraordinary actions by the executive. However, more than four years later, it is difficult for me to justify why this shouldn't be authorized through the FISA Court. Especially as the government can initiate a wiretap/collection in anticipation of receiving a FISA warrant within 72 hours. From the President on down, there have been statements that the information is too hot to wait for a warrant, but I am having a hard time reconciling that assertion with the 72 hour provision. I'm not sold on the necessity argument.

However, there is much information about this program that we don't have and probably won't have publically for a long time. For better or for worse, there is probably much more to this than is apparent right now.

Yes, the President is the commander-in-chief, but it is Congress that makes rules to govern and regulate the military. The commander-in-chief power is not unlimited. As far as U.S. citizens are concerned, civil liberties safeguards are stronger when they involve more than one branch of government.

The further we get from the crisis days of late 2001, the more this becomes a Congressional responsibility. If this is a gray area in law, Congress can stipulate. If this program contradicts the legal framework for electronic surveillance, then there is a problem and Congress needs to assert itself. And if the program is within the law, the hearings will confirm that in whatever detail may reasonably made public. It is difficult to say when the struggle against terrorism will conclude, so many improvisations that were reasonable in the immediate aftermath of 9/11 need to examined for the long term.

My assumption, based on the NYT's delay in publishing and the Administration's strong defense, is that the NSA program is effective and valuable. Its operational aspects (what if electronic intercepts are being scooped relatively indiscriminately and then mined vs. being very specifically tied to individuals), may bring the law into new areas. But just because it's novel and valuable doesn't mean that it can't be placed in a procedural framework that relies on more than internal executive branch safeguards.

sparky said...

SW--sorry to be difficult, but I disagree. Let's look at what you posted.

Wow, Mark; I think you ought to read statutes before you rely upon them. A resonable interpretation of 50 U.S.C. 1801 and 1802 justifies the actions of the preseident.

Under the law "Foriegn Power" does not get the rights of a "United States person" and if you are part of a group engaged in terrrorism or activities in preparation [for terrorism] your communications may be monitored lawfully.

Correct but not relevant. (a)(1)(B) precludes monitoring of any US person. There is no exception for "agent of a foriegn power".




The rest of this is a long and complicated thing called a statute, sometime lawyers read them before determining that laws have been broke.

Not sure exactly what your point is here. Perhaps the Adminstration is sure that it broke the law? That would explain why the Administration has not attempted to argue that FISA permits this activity.

50 USC 1802--(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year

Well now, there's your first problem. Way more than a year.

if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or

Oops. That doesn't apply for two reasons. This section only applies to a(1-3) entities, not "any person" and this would not be communication between foriegn powers. 0 for 3 so far.

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

Gee, not applicable either.

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party;

Pesky plain language again. Guess we can just ignore that, too.


Sorry if this sounds snippy but you really have been drinking the Koolaide.

That would be the "reading the statute" Koolaide, no doubt?

Sloanasaurus said...

Some of the calls are probably set-ups. I.e. if you get information on a bad guy from Pakistan who is living in Chicago, you may try and set him up using fake calls, to see if they guy know anything.

We are in a war!

SWBarns said...

Mark, please read the entire post, I'm pretty sure my post covered this:

I don't know where you draw the line between a US Person "Al Qaeda sympathizer" and being a member of a group "engaged in international terrorism or activities in preparation therefor" but if someone is trading emails with Osama I think they probably fall into the latter category.

Since you have tried and convicted President Bush under FISA, I thought I would point out at least one obvious defense.

Ann is right about you being tendentious. "How in the world it is not clear that the wiretapping violated FISA act?" I think I made myself clear that there is at least one way that there was no violation.

I hereby withdraw my "sorry" comment.

sparky said...

stiles--
I agree with you. Let's assume there's some value to this program, and let's assume an exception for the circumstances around 9/11/01. It's hard to come up with a justification for why the WH couldn't have sought appropriate language in the PATRIOT act, or in FISA or somewhere else to permit this activity. The only suggestion I've seen so far is that this might be a different kind of spying. We'll see (maybe). In the meantime, I think it's just a casual disregard for legal niceties that seems endemic to this Administration.

jeff said...

As one who holds a clearance, and has signed many lifetime Non-Disclosure Statements, "whistleblowing" and "deliberately divulging classified information" to the press are definitely separate issues.

Words cannot describe my disgust at the betrayal of trust made by those NSA employees. They need to be tracked down and given a long period of rest in a concrete castle.

Mark said...

Swbarns:

Are you reading the statute carefully? As sparky noted, section 1802(1)(B) does not contain an exception to "United States person is a party."

50 USC 1801(i)“United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States,
***but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.


A US citizen or permanent resident who is an Al Qaeda sympathizer is still a Unites States person under the statute.

wildaboutharrie said...

I think we'll learn that "ties to al Qaeda" is being very broadly defined by the administration.

sparky said...

sloanasaurus--
an off point comment, but i get cranky when i see the "we're at war" comments as a justification for all kinds of activities. if we're really at war, then before we start giving the authorities all kinds of emergency powers, let's
--reinstate the draft
--begin gasoline rationing
--raise income taxes to pay for the war

i could come up with some others but you get the idea. if these seem too extreme to you, then i suggest you reconsider whether we are really "at war."

Sloanasaurus said...

Bush should be impeached for this!

At the same time we should dig up the dead bodies of Lincoln, Truman, Roosevelt, and Kennedy, and decapitate them to let our enemies abroad know that we mean business!

Al Maviva said...

>>Wake up and do some thinking for yourself or at least have the decency to wait to hear the facts and argument developed properly.

Gee whiz, Ann. I was citing to Harry Reid's comments there. I happen to think that there are decent grounds for declaring AQ a foreign power whose agents, when engaged in international communications, are subject to warrantless monitoring. That is before considering the President's Article II argument this morning. I was just trying to put some stuff out there concerning the minority leader's actions and words for people to consider, and let them think for themselves without spoon feeding.

Oh well, here's the spoon anyhow.

1) Harry Reid didn't have any problem with the program when he was briefed on it before, otherwise he could have said or done something to derail it, even if it was to just block conference reports and mess up funding for it;

2) He didn't exactly condemn the program when talking to Britt Hume on Sunday;

3) He talked about prosecuting the leakers to the full extent of the law and really damned them for leaking;

4) In fact, he talked about it as a really important national security project;

5) He has been cage rattling for stronger whistleblower protections;

5) Ergo he knows that if there was bonafide lawbreaking of the caliber that most in his party seem to be accusing the President of, the "leakers" ought to be treated as heroic whistleblowers, rather than the common criminals Reid suggested they are.

Thus I draw the conclusion that Harry Reid doesn't think the program is illegal, and that the calls for investigations into the program, based on the notion that there was some huge COINTELPRO style abuse, are stunningly, amazingly hypocritical and wrongheaded, and he knows it, but probably doesn't want to give voice to something that the left end of his party thinks will be an effective bludgeon against Bush.

Funny, I blogged about this over the weekend at cold fury. The one thing I never expected was to be accused of damning the Executive Branch's actions in this matter with unthinking criticism - here I was trying to just put some facts out there and let people draw their own conclusion. In fact, I've received some very, let's call them salty, nasty communications accusing me of being a paid Bush shill, staggeringly dishonest in thinking the President could order this under FISA, etc.

Sloanasaurus said...

--reinstate the draft
--begin gasoline rationing
--raise income taxes to pay for the war

Why would we do any of the above. We don't need a draft, we have plenty of soldiers. We don't have a shortage of gasoline, and income taxes are much higher as a percentage of GDP then they were in World War II and about the same as taxes were during Vietnam. Why would we raise them even higher?

What we do need is smart intelligence and the monitoring of possible terrorists. That's what the 9/11 commission said..... I don't rememember the commission saying we needed more military equipment, more soldiers, and more gasoline? Do You?

Wait, I have just uncovered your stupid point. Hmmm......

wildaboutharrie said...

Al, it's possible that it's just as you say, but I wonder if Reid is trying to cover his posterior as one who WAS briefed on the program.

Pooh said...

Legal analysis aside, I haven't seen a cogent explanation for why not to get a warrant. FISA courts are not public so the 'protecting sources and methodology' argument doesn't take me very far. Similarly, since you have a 72 hour 'grace period', it doesn't seem the 'need to move quicker than a FISA court could respond' does much either.

I don't think it's asking to much for the Executive to make a showing of a rational connection between terrorists and a phone/email account/whatever subject to interception. Is 3 days really not enough?

As far as the legal analysis goes, I'm dubious, but will wait for someone to put forth the best, honest case for legality before reaching a final opinion.

Ann Althouse said...

I can't keep track of all the many arguments being made here, but sparky: "You lost me with two disingenous moves. The first is the argument that this is a separation of powers problem. What is the source of the Congressional delegation of power here?"

How dare you label my points "disingenuous moves" when you quite obviously know very little about law, less than you could have learned from just reading my post accurately! The President has some very substantial powers without Congress writing any statutes, which isn't called "delegation" anyway. "Delegation," such as it is, violates separation of powers. Write more modestly to protect yourself from looking both ignorant and nasty.

"The second is your characterization of the people who disclosed this information. Your characterizations are a smear. No doubt the people who disclosed this information were aware of the possibility of prosecution. Suggesting that it helps terrorists is a GOP talking point that a person in your position shouldn't be stooping to use."

Ridiculous! The suggestion is apt! You should be glad I didn't "stoop" to calling it treason. People who commit crimes with awareness that they could be prosecuted aren't to be praised. That's the position of most criminals. Why don't you explain why disclosing an important national security secret isn't reprehensible? You think these people are heroes? Plenty of people will disagree, despite your attempt at PR for them.

reader_iam said...

I've gone through this comments more quickly than usual, so if this has been covered, sincere apologies.

On one small point made by Mark, I have to say I believe he's right. I too recall Specter saying it was "wrong," or certainly strong words to that effect while following the news and C-Span Friday. Which I was doing very closely indeed all day because I wrote a post about the wiretaps, the Pentagon's mismanagemetn of a database, and the Patriot Act debate and planned a possible followup.

As to the rest of what Mark said (don't know if he's a lawyer or not) or what other legal types are responding, I'm certainly not qualified to speak to that.

However, I do think I might represent the sort of lay person who tries to be informed and sort out the issues, and my reaction to the "warrantless interception" in conjunction with other issues and what appears me as increasingly sanguine attitude on the part of various parts of government leaves me feeling deeply troubled. It's the overall mindset that makes me comfortable.

One last thing: I too am interested watching the hearings play out. Too often, I think hearings end up be called for mostly or purely grandstanding and/or political purposes. While no doubt some of that is in play here, I think think these hearings are very legitimate indeed, and the situation is one into Congress must look. The point about Congress needing to determine and take its own stand is dead-on, in my view.

reader_iam said...

"Comfortable" should be "uncomfortable," of course. The rest of typos etc. I'll let be.

Mark said...

Thank you, reader_iam. The thing that upset me the most was that I personally watched Specter say it, and then I was accused of "making no sense" when I accurately reported what he said. By the way, I am a lawyer, although without any specific expertise in constitutional law.

wildaboutharrie said...

"Gonzales said that while FISA prohibits eavesdropping without court approval, it makes an exception where Congress 'otherwise authorizes.' That authorization, he said, was implicit in the authorization for the use of military force."

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/19/AR2005121900211.html

So there it is, the 2001 resolution, again.

Troy said...

Someone earlier asked about FISA and warrants...

I can't speak with authority on federal warrants, but having worked as an attorney for a large state police agency I can tell you that our narcs, etc. avoided wiretaps like the plague because the warrant requirements were onerous -- due to the rights being limited.

I would assume that the federal version is slightly more efficient -- and the FISA version even moreso. BUT -- If you know Osama is going to call someone in 45 minutes it would be IMPOSSIBLE to get a warrant. Getting the names, numbers, dates, times, agents' foreign agents info etc. into an affidavit, signed, sealed, delivered, and executed would be impossible for even the most basic search warrant -- and would the guys' attorney get the warrant eventually also?

The 45 day review fo the program seems more than enough to protect rights -- the fact we haven't seen House Minority Leader Bambi and Harry out in front on this speaks volumes to me.

Where were you guys when Clinton was using the IRS as his personal thugs? Use the power legitimately to protect citizens and Bush is evil.

And besides all that -- htough not an argument for its legitimacy, this stuff has been going on for years. ECHELON anyone?

And a side note... I don't know if my writing is quality -- I'm sure often it's par at best, but I now take pride that I at least haven't been publicly threatened with deletion. Digital Tookie!

nunzio said...

I don't trust the President, I don't trust the Attorney General, I don't trust Congress, I don't trust federal judges, and I don't trust the NY Times or Washington Post.

But will everyone relax a bit. Until the late 1960s, this type of surveillance wouldn't have been thought unconstitutional. Bobby Kennedy even authorized wiretaps of Rev. Martin Luther King, Jr., and now there's schools across the country named after both of them.

The U.S. will survive.

sparky said...

s-
gee, calling my point stupid is an effective retort.

let's see--
plenty of soldiers. so i guess all that news about the armed forces being stretched too thin is a fantasy. right. that would explain why the army has got so many more people than it knows what to do with.

i didn't say we had a shortage of gasoline. the reason for rationing it would be to lessen our dependence upon a product that we have to import, partially from people who are hostile. in a period of war that would seem to be a prudent thing to do. unless of course you'd prefer to keep giving dollars to people who want to blow us up. guess you do.

taxes. my point was that we could use the extra money--for example to buy equipment for our soldiers.

but let's look at the numbers, shall we?
you said "income taxes are much higher as a percentage of GDP then they were in World War II and about the same as taxes were during Vietnam."

% of gdp from individual income taxes in 1944--9.4
% of gdp from individual income taxes in 1965--7.1
% of gdp from individual income taxes in 2004--7.0

oh, and for the curious out there,
top marginal tax rate 1944--94%
top marginal tax rate 2003--35%

so gee, guess we can't raise taxes any higher. no siree.

and as to the 9/11 commission report, my suggestion is this: perhaps the administration should work on those items they got an "F" on before they ignore the law for extra credit.

sparky said...

Ann--
I thought you might have noticed that I deleted my comment that you responded to, as I decided it was a bit intemperate. But timing is everything.

John(classic) said...

I think we are all missing something here.

1. There have been several allusions to a new technology. e.g. Sen. Graham (who frankly seems a bit fuddled about what he knew when) "I came out of the room with the full sense that we were dealing with a change in technology but not policy,"

2. In the press conference, I am pretty sure I heard, at one point, Pres. Bush say the interceptions were taking place outside the U.S.. It could easily have been a bad phrase, it was in a context where he could have meant that calls were being placed internationally.

3. It seems pertinent to me that the head of the FISA court was one of the people informed.

In other words, we don't know what is going on. I would hate tot hink that congressional hearings to investigate would compromise something big (Gonzales referred to it as something that ranks very high among U.S. secrets).

Aspasia M. said...

This comment is also from a lay person's perspective:

It concerns me that warrants were not applied for after the fact.

I don't understand why the warrants weren't requested after the fact. From what I understand, isn't there a 72 hour emergency grace period to wiretap before applying for a warrant? And wasn't a special court set up to expedite warrant requests after 9-11?

Stiles said...

Ann,

Since we don't know much about the specific context of the NSA program, I'm not asking you to speak to these issues in regard to the current controversy. However, over on Volokh I'm seeing some assertion that the President's power as commander-in-chief, given the supremacy clause, trumps federal statutes like FISA. I am thinking that statute is one way Congress regulates the military, which is also privileged by the supremacy clause. What do you see as some of the key precendents in this area? Youngstown v. Sawyer was a long time ago. Your blog, so I'll understand if you don't choose to comment on this, but I'm interested to hear.

Sloanasaurus said...

GDP at 1/1/45 was about $230 billion. Fed Gov Receipts at the time was about $40 billion or approximately 17%. Today, the amounts roughly the same at approximately 17-18%. Check it out yourself at http://research.stlouisfed.org/fred2/

oh, and for the curious out there,
top marginal tax rate 1944--94%
top marginal tax rate 2003--35%

For anyone who knows anything about taxes, there were a lot more deductions allowed in 1944. Thus, the comparisons above are meaningless.

brylin said...

United States v. United States District Court, 407 U.S. 297 (1972).

Hat tip to Hugh Hewitt.

John(classic) said...

The President's slip:

"..you brought up something that I want to stress, and that is, is that these calls are not intercepted within the country. They are from outside the country to in the country, or vice versa. "


Did he mean what is in bold, or is it just a misstatement of the next sentence?

If he meant it, this sounds increasingly like an ECHELON type program. My speculation would be that when a phone number "of interest" is used,that call and any calls made from the opposite party, and so on will automatically be intercepted. I suspect that there might also be cached data storage so that all international calls are stored for some period of time so that it is possible to go back in time as well as forward.

All this would happen at computer speed, with possibly further filtering (was the call in Arabic, did it mention "xyz", can we match a voiceprint, etc.). The people operating the system would not know who had been subjected to electronic surveillance until after the fact.

How does one fit something like that within a court warrant system?

My specualtion is triggered by the fact that the head of the FISA court was informed, apparently made some objection that suspended use for a time until the objection was met, but was apparently not involved subsequently. This makes it seem to me that it was some sort of automated system, rather than being individually decided on interceptions.

mark d. said...

Hat tip to Mr Hewitt? did you read 407 US? here are the concluding paragraphs of sections II and III of the opinion:

Section II

The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.

Section III

Thus, we conclude that the Government's concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government's domestic surveillance powers will be impaired to any significant degree. A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review. By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur.

brylin said...

Mark D., Yes I did read it. I found it on Hewitt's website, therefore the hat tip.

Don't you think this Supreme Court case is relevant to this discussion?

EddieP said...

Art,
My plea was for any US citizen that has been injured, not anyone that may or may not have been tapped. None of us knows if any US citizens were illegally tapped, we only know the president ordered expedited taps in a few cases. As always from the left there's a giant assumption that if Bush ordered it, it MUST be illegal.

Far as I'm concerned, the fact that these taps have been on-going for four years and the Intelligence Committees haven't even raised an eyebrow proves that this is all another democrat tempest in a teapot. Remember, the dems controlled the Senate Intelligence Committee during the first three years of this activity.

Mary Mapes & Danny Boy and "Don't you know who I am?" Kerry would loved to have pulled this stinker out of the woodpile on say November 2nd last year. Instead they were stuck with a cowpie and the mysterious Lucy Ramierez. The NYT says they sat on this story for a year. Is that lame or not?

brylin said...

Did you see footnote 20 of the opinion?

wildaboutharrie said...

Eddie, my understanding is that these were not a "few" expedited taps but around 500 taps on Americans for which no warrants were ever sought. (Or do you mean "few" as a relative term and not literal?)

brylin said...

Attorney General Gonzales cites another basis for legality:

"Our position is that the authorization to use military force which was passed by the Congress shortly after Sept. 11 constitutes that authority."

wildaboutharrie said...

Yes, they're not using FISA to justify this.

So by that logic, what happens to the McCain anti-torture legislation?

Calvin Ross said...

What I find fascinating is an apparent disingenuous assertion that members of Congress could reveal their opinions concerning classified information brought to their attention by a classified briefing.

Then Ann also asserts that "The leak is really outrageous, and people who don't care about it strike me as flat-out partisans who care more about politics than national security. It's quite sickening."

Okay. To leak the information is outrageously partisan and endangering of national security. To not leak the information indicates that those briefed in Congress were content with the legal justifications underpinning the NSA warrantless wiretaps.

You can't have it both ways, Ann, and you should know it.

Follow my views at http://www.calvinross.com/newnormal/

Art said...

eddiep said:
"Mary Mapes & Danny Boy and "Don't you know who I am?" Kerry would loved to have pulled this stinker out of the woodpile on say November 2nd last year. Instead they were stuck with a cowpie and the mysterious Lucy Ramierez. The NYT says they sat on this story for a year. Is that lame or not?"

No, what's lame is pulling the name of someone on the conservative hit list out of nowhere and throwing that into the argument as if that proves the point.

But I guess I should admire your restraint. You didn't throw in Michael Moore.

Ann Althouse said...

Stiles: Youngstown and Dames & Moore are key cases. I tend to think the President is operating within an area of power that at the very least justifies the narrow construction of statutes that mean to limit him. But there are surely some areas of Presidential power where the President would win in a direct confrontation with Congress. He's the Commander in Chief, and there are powers, not often discussed by courts, that come with that.

EddieP said...

Sorry, Art, I think it proves my point exactly. If there were any meat on this bone, the NYT would have seen to it that the Kerry Campaign, DNC and CBS had access to it last year.

Wild,

I haven't seen the numbers that you quote, but 125 a year on people whose names were found in PC's and notebooks abroad is a relative few to me. Don't get me wrong, if we're wiretapping US citizens without warrants, there better be a good explanation.

And my BS detector still says why is this news now? Regards

Mark said...

Professor Kerr on Volokh Conspiracy just posted a detailed analysis of the legality/constitutionality of the program. His tentative opinion is that the program probably does not violate Constitution but probably violates the FISA. As many of you know, Professor Kerr is moderately conservative on issues of national security/surveillance.

wildaboutharrie said...

Eddie - the timing IS suspicious. What's changed in a year that caused the NYT to come out with this now and not then? Does "a year" mean before or after the election?

And the publishing of it one day after the elections in Iraq is suspect.

ChrisO said...

Ann

It's your blog, and you can certainly make any rules that you want. But the thing that attracted me here was that both sides of issues were discussed with relatively little name-calling. I'm a liberal who comments on both left and right wing sites, and I find it refreshing to have a civilized conversation.

That said, I found it a little off putting that you came down so hard on Mark for saying "Wow, Ann," and "case closed," going so far as to tell him to change his tone or risk deletion.

Meanwhile, I also read comments with statements like "Of course, if a Dem were Prez/or had been? Then the little pink ponies we would have been riding around on, would have protected us. Allahu Akhbar." or "The rest of this is a long and complicated thing called a statute, sometime lawyers read them before determining that laws have been broke(sic)." or "Wait, I have just uncovered your stupid point."

All of these comments are much nastier than anything Mark said. It really appears that which side one is taking in the argument is the determinant for how nasty their "tone" is perceived to be. Again, you can threaten to delete whomever you want. It just seems a bit inconsistent.

Mark said...

Just for the record, my position from the beginning was that the program violates FISA. Orin Kerr seems to agree (although tentatively), even though he thinks that the program does not violate Constitution.

One of the commenters here is exactly right; it's not the program per se which is especially troubling. It is the whole attitude this Administration takes to the law; the almost palpable arrogance that it can do whatever it wants to do under the color of "Commander-in-Chief" authority. It is the broad reading of this authority that led to the infamous Bybee memo that concluded that President could legally authorize torture despite laws prohibiting it. To me, that memo, this program, extreme positions in Hamdi and Padilla cases are all the rings of one chain which culminates in almost unbounded authority by the President. I think it should be troubling to many people.

Sure, we are in the war. But it does not justify taking the positions that the Executive branch takes. Maybe I am wrong, but I don't think it is all partisan to be on the side of protecting civil rights and the balance of power. For myself, I know with 100% certainty that were President Clinton or any other person to assert these powers, my position would be exactly the same.

Also, I think it significantly raises the stakes in Alito's confirmation battle. Alito's record strongly suggests that he would take an extremely expansive view of President's powers as Commander-in-Chief; probably very close to Justice Thomas' view. It surely will have at least some impact on undecided Senators.

Mark said...

Thanks, Chriso.
I too, was surprised by Ann's comment to me. I thought it was unfair but it's her blog and she can say or do whatever she wants.

My position from the beginning was that the program violates the FISA, not the Constitution. I did say "blatantly illegal" but I clearly referred to the FISA. In my reply, I mistakenly conceded that I had referred to the program as "blatantly unconstitutional", but after re-reading my original comment, all I said there that the program violates the FISA.

Also, I did not misrepresent Specter's comments as Ann implied.
I listened to him personally on Friday, so I referred to what he said on the Senate floor. Granted, he qualified his comments on CNN, but he did say on Friday that the program was obviously improper and worrisome.

So, my post did not contain any inaccuracies, as best as I can tell.

I apologize for wasting everyone's time, but I just wanted to clear the record. Overall, I enjoy this blog and the level of comments here.

Ann Althouse said...

Mark: Your comments were entirely unlike Kerr's. You were asserting the program was "blatantly" illegal and so forth, in overdone, unconvincing terms. You might note that I haven't taken a position. I don't consider myself knowledgable enough to do so, and I really dislike it when other people think they are. Look how modest Kerr was about his analysis. He's an expert, and he still refrained from making any strong assertions. Take a lesson from that. Asserting that you're like him is absurd. In style of argument, you've been the opposite.

ChrisO: I haven't read all the comments closely enough, especially the later ones. My application of a standard here is somewhat hit or miss, because I don't read everything. And I didn't delete anyone's comments, so what's the big deal? Chiding one person puts everyone on notice, anyway. I deleted one post today, on another thread, and it was not written by a liberal.

Mark said...

Ann,
I never meant to assert that I am like Orin Kerr. He's an expert in this area, and I am not. I don't believe I've ever compared myself to him. I just pointed out that he seems to agree with my conclusions. Obviously, his analysis is much deeper than mine.

I just stated my position that under clear reading of the pertinent part of the statute, the program is blatantly illegal. Maybe "blatantly" was overdone, but it's a debate and I never meant to offend anyone.

Ann Althouse said...

Mark: Sorry I came down so hard on you. I just hate overstatements about law, especially when they seem aimed at skewing political opinion.

Mark said...

Ann,

No problem. I understand your position and agree that strongly charged words are rarely helpful in the debate. Therefore, on my part, I'll try not to use strong words too much. I do enjoy the blog and intelligent dialogue here.

The Drill SGT said...

John (Classic),

Sounds like you may have been connected to the NSG at one point. Without violating any of my own NDA's, and W/O any knowledge of what is really going on here, I'd like to connect a couple of possible dots.

1. We have obtained numbers of overseas phones (from captured laptops, little black books, or just intercepts).

2. we put those on a computerized watch list.

3. watched phone calls the US. That is clearly an international call. (going down the path of analyzing the contents of the call, causes you potential US persons problems, however) I read the FISA stuff as prohibiting in some places the use of the contents of the call of US persons without court orders and affirmative minimization. What if we don't care about the contents? Just flag the new US number and then track the overseas calls it makes. connecting more dots and so forth. simple traffic analysis. You can get a lot of info on the chain of command, operational activities and members of the cells, W/O a content analysis and by my reading of FISA never get close to illegal activity.

The Drill SGT said...

I did a bit of FISA reading:

(f) “Electronic surveillance” means— (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.


As I read the FISA section above, we never did any “Electronic surveillance”

1. we targeted foreign phones, that called US locations. We never knew if the receiving phone was operated by a US Person, therefore we NEVER did (intentionally targeting that United States person,)

2. The intercepts were likely by satellite of other satellite down or up links and then sent to the UK. Hence we NEVER did (acquisition occurs in the United States)

3. we only intercepted international calls, hence we NEVER did (if both the sender and all intended recipients are located within the United States)

4. we NEVER Bugged any computers.

I can't prove it, but I could construct a useful operation and stay out of range of the FISA prohibitions and do either traffic analysis or perhaps content analysis if I did the intercept and analysis offshore.

matty said...

Ann,

I'm just a law student, so my knowledge of these issues is very spotty. But I'm troubled by the strong Yoo formulation of executive power.

When AUMF is sufficient authorization to invoke war powers, and when the President claims the power to have unreviewable authority to determine what actions are proper, I'm not sure why when there is an area that seems like the President exceeds his authority from Congress, we shouldn't want the courts to force him to go ask Congress for specific enumerations and clear statements, as in the Steel Seizure cases.

In this case the program was classified anyway, so the normal check of public opinion isn't present. And I haven't seen a convincing statement that the retrocative permit process already in place was in any way insufficient.

I would very much like Congress to be more active in its oversight role, but the fact that it hasn't revoked power yet does not seem sufficient reason to argue the courts shouldn't try and enforce proper separation of powers. Especially when the one party controls every elective branch, I'd be more comfortable with more oversight and review. But I'd like to hear more reasons why I may be wrong. I' no Constitutional expert.

Ann Althouse said...

Thanks, Mark. I appreciate your contributions to this forum, which I really want to be a place where intelligent, decent people can talk rationally.

Robert R. said...

I note that Attorney General Gonzales is arguing that the power to do these wiretaps is implicit in earlier authorizations. And there seems to be an explicit denial in these powers in FISA. I'm not a lawyer, but it looks like the legality will basically hinge on the explicit vs. the implicit debate.

downtownlad said...

Regardless of the Constitutionality of the law, the Bush Administration continues to show complete disrespect for the other branches of Congress.

The Executive Branch is allowed to wiretap phones 72 hours in advance, without approval from a court. And a special court was created to speed up the authorization of search warrants.

Why is it so complicated to comply with that law? And if it was - why didn't they try and get the law changed.

That's really not asking too much.

John(classic) said...

I think I see the AUMF argument as this:

(1) FISA only makes illegal electronic surveillance not authorized by statute.

(2) If AUMF authorizes electronic surveillance then it is authorized by staute.

(3) Therefore FISA does not make such electronic surveillance illegal.


Stumbling blocks, and counters:

(1) AUMF is not a statute but a joint resolution -- not sure how serious this is.

(2) AUMF does not explicitly authoize electronic survellance -- but it does authorize war and electronic surveillance of the enemy is certainly part and parcel of war today


Looked at that way, this really isn't a separation of powers dispute at all. Rather it is a classic "what did congress say, and if ambiguous, mean?" question.

Kurmudge said...

Going to FISA within 72 hours is still impractical given the steps if the process. The reason that FISA has sustained all but 5 requests is because they are not made often, and they are vetted over periods of weeks before being submitted, acording to Hewitt's explanation as the former DoJ atty in charge of the FISA requests. When you have time-sentitive material you jump on it, so the blanket authority was granted based on Counsel advice. As always, mens rea is key.

And you can't get broad, generic, and sweeping warrants under the 4th. So you have to either ignore the intel that is captured (phone numbers. etc.) or do nothing and let the info go cold. Bush got a legal opinion saying that it could be done, he shared the plan with Congress, and even modified the plan in response to Dem concerns. And then this all hits the front page just in time to hype Risen's book.

The hyperlibertarians and hyperpolitical are living in a different world. Politicians won't look too good when it becomes common knowledge that they accepted the program originally but now are trying to exploit it politically. Reid and Daschle sound like idiots.

The thing to do now is hold those classified hearings, put everyone under oath, and prosecute the leakers. I suggest Fitgerald as the Special Prosecutor; he has learned a lot about investigating leaks.

downtownlad said...

Prosecute the leakers? Why? Does anyone really think that the terrorists didn't realize that their phonecalls were being monitored by the government?

After all - the government can monitor any phonecall for 72 hours before they even have to tell a special secret court.

The leakers did not endanger our security one tiny bit. The Bush administration has already ignored the 1st amendment. Now they are going to ignore the 1st amendment by going after the NY Times for publishing the truth??? I doubt it.

wildaboutharrie said...

Drill, my understanding is the NSA has been monitoring calls (content included) made by people with links to al qaeda (I'm wondering what that means, I suppose we'll find out) from the US to other countries. Gonzales is not using FISA to justify this program but the broad powers to fight terrorism given the President by Congress after 9/11.

It's strange to me that they bothered to use FISA for domestic calls - why not shortcuts there, too?

duane, I agree about the politicizing by those in Congress who knew of this program. Pelosi noting that she expressed "concern" is just not doing it for me.

David Brooks had it right tonight I think when he said on The News Hour that if the administration had come before Congress (officially) and said that FISA had to be adapted, they would have gotten what they needed.

He also said that if we get hit again, this debate will be moot.

The Drill SGT said...

Ok, Wild----,

Then if the interception of an international call was done outside the US, you can look at the content all you want it seems to me because no “Electronic surveillance” took place as defeined by 1801.

I know I'm splitting legal hairs, but it seems to me the administration is doing the same thing and i'm trying to figure out where they are coming from on this.

Mark said...

As a side note, you know that the Administration is on shaky legal grounds when legal experts on Fox News (Judge Napolitano, Jonathan Turley (he's a moderate)) think the President acted illegally. Also, a lot of law professors believe the program is illegal (by violating the FISA): Orin Kerr, Jeff Balkin, Marty Lederman, Alan Dershowitz, etc.
Not to say that they are necessarily right just because they are law professors, but it seems like the consensus among most legal experts is that the program probably violates the law.

Ace said...

can someone tell me what is "illegal" about this:


It will be recalled that the case that set forth the primary purpose test as constitutionally required was Truong. The Fourth Circuit thought that Keith’s balancing standard implied the adoption of the primary purpose test. We reiterate that Truong dealt with a pre-FISA surveillance based on the President’s constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power

-----------

Note: Kerr doesn't even mention this which is absurd.

Ace said...

Does anyone really think that the terrorists didn't realize that their phonecalls were being monitored by the government?


Demonstrating your vast command of the GWOT

Good God...

Mark said...

Ace, first, that comment was a dicta. The very next sentence in that opinion says:

The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

So, the court simply stated what it thought the Truong court said and moved on. I don't think it holds much precedential value. However, it may be helpful to read the Truong opinion. I haven't done so. In any event, even if the President believed FISA was unconstitutional by encroaching on his inherent authority, he still should have abided by the law. It is the province of courts to decide whether a law is constitutional. We can't have a system where the Executive unilaterally decides which laws are constitutional and should be followed and which laws are unconstitutional and may be ignored.

Tom T. said...

Orin Kerr's analysis certainly seems to be thorough and fair, and I think Mark's right. At the very least, it appears barely possible to interpret existing law in such a way as to permit this program, but the chain of exceptions and assumptions required seems awfully implausible. Moreover, downtownlad's point seems cogent; there's a process in place, which should either be used or modified (or bolstered, with more DOJ attorneys assigned to that office), not ignored.

That said, the leak does trouble me, although I'm not sure what the proper avenue for challenge would be. Perhaps one of the Democratic congresspeople briefed on the program could have brought a sealed lawsuit seeking an injunction.

Sloanasaurus said...

If Bush's actions were constitutional it is \certainly possible that FISA unconstitutionally restricts the power of the President. FISA is a power grab by Congress. Congress has no constitutional right to be consulted about the foreign policy of the executive. On its face it seems outrageous that Congress could limit the President from spying on those assisting foreign powers even if they were within the United States. This includes spying on those Bush has a hunch are assiting the foriegn power. Any law Congress passed to try and limit this would be unconstitutional.

I am hoping that this issues stays in the news. I want democrats and republicans to take issues on this during the campaigns. I want democrats to come out and state that they will not support this program. Then let the votes fall where they may.

Mark said...

Sloan:

I think that's the strongest argument that Bush can raise (that the FISA is unconstitutional). His other arguments (that Congress authorized surveillance or that FISA doesn't prohibit it) are very weak, in my opinion. He'll have better chances by arguing that the FISA was unconstitutional, at least he has a colorable claim here. Of course, he still should have followed the law until it was found unconstitutional by the court. Also, the argument is ultimately going to lose. Just witness Scalia's dismissal of Bush's argument that his inherent authority as Commander-in-Chief included the power to detain US citizens as enemu combatants. As I recall, Scalia flatly said that it is reading too much into the inherent power of the president. In fact, surprisingly Scalia turned out to be pretty strong on protecting civil liberties in face of national security arguments (unlike Thomas or Rehnquist).

bookman said...

his justification is the Yoo doctrine. thats all. its a nonsensical interpretaion of the presidents 'wartime powers' which essentially grants him the ability to do anything he pleases despite legality of it.

Prof. Althouse, you and my UW polisci prof should get into a spat over this... it would be entertaining

bookman said...

just a friendly incitation.. i mean invitation... (since i'm not really posting covertly)

Sloanasaurus said...

"...Of course, he still should have followed the law until it was found unconstitutional by the court..."

This comment is absurd. You obviously do not grasp the consequences or the stakes of this war. This war is not a game. It is not something that we can lose and then just start over again. Losing this war would lead to centuries of human misery.

You remind me of the senators in the Carthage peace party who hated Hannibal so much they were willing to cut off his support (despite the fact that it lead to their loss and ultimately to the desctruction of Carthage civilization).

No doubt, however, after Bush spent a year going to Court, I am sure we would all be praising him for his decisive leadership in the war on terror.

Mark said...

Sloan:

Your comments are starting to slide beyond the line separating reasonableness from absurdity.

First, as the Supreme Court said, the war is not a blank check on Presidential powers. You probably want it to be a blank check, but it's not. There are limits as to what President can do, even in this war.

Second, going to a virtually rubberstamp FISA court within 72 hours after recording of some relevant conversation is not a significant burden on the President.

Third, by your logic, the President, as a King, may decide what statutes to follow and what statutes are too cumbersome to follow, and can be circumvented by assertion the talismanic CiC authority. As early as 2002, apparently the Justice Department of this President believed this authority included allowing torture.

Don't you see the dangers of your philosophy? Or do you trust Bush so blindly that you are willing to remove any checks on Executive power?

We can win this war on terror without eliminating all checks on the Presidential power. As Franklin said, and I am paraphrasing, those who choose security over liberty deserve neither. We'd all be smarter by heeding his advice.

Aspasia M. said...

I've been trying to figure out why Bush didn't direct the use of the FISA court for warrants after the fact, but within the 72 hour grace period.

It sounds like this program may be a computerized data-mining system. Some of the variables would probably seem random. An algorithm would determine which people to monitor.

(Jay Rockefeller has released a handwritten letter expressing reservations to Cheney about this program. He referred to TIA. TIA included a data-mining system.)

Perhaps Bush's administration was worried that the FISA court would reject this technology and its process of data collection as acceptable evidence.

So far, this is the only explanation I have found that explains why the administration wanted to bypass the FISA court.

TidalPoet said...

To those asking why didn't Bush & Co just get FISA amended, Gonzales answers you here. If any of you are familiar with the meaning of the word beadwindow, just apply it to Congress and almost all of its dealings - then ask yourself, is he wrong?

Question: If FISA didn't work, why didn't you seek a new statute that allowed something like this legally?

Gonzales: ... We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so the decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

Ace said...

Mark,
it didn't merely say Truong:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.

Further, everyone seems to think this isn't legal under FISA which I don't accept.

I'll add another post on this.

Ace said...

Courts are just not agreeing this is illegal

Court Says U.S. Spy Agency Can Tap Overseas Messages
By David Burnham, The New York Times, 1982

Washington, Nov 6 — A Federal appeals court has ruled that the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe they Americans are foreign agents, and then provide summaries of these messages to the Federal Bureau of Investigation.


----------------
And:
President Carter issued an executive order on May 23, 1979, stating:
“Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order.”

---------------------------

I'm sorry, but Kerr's post on the topic leaves out way, way too much to be taken as definitive.

Now that I have re-read mark's comments through the thread I can not believe anyone takes anything he says seriously.

Ace said...

For example, the silliness from mark:

you read the statute carefully, you'd notice that 50 USC 1802 (1)(B) requires that there is no "substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party". Of course, the Attorney General could not make such a certification since there was a substantial likelihood that one of the parties was a United States person

Well, first, a terrorist group is a foreign power under the statute:
§ 1801 a) (4) a group engaged in international terrorism or activities in preparation therefor;

Then what is international terrorism:
(c) “International terrorism” means activities that— (1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;

So, if you are engaged in international terrorism you are an agent of a foreign power.

Per § 1801 (b)(2)(C):
“Agent of a foreign power” means—
knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;

(b)(2)(C) covers everybody not just foreigners.

FISA is to collect "foreign intelligence information," which is defined under section 1801 subsection (e)(1)(B) as "information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against sabotage or international terrorism by a foreign power or an agent of a foreign power."


---You are simply flat wrong mark.

Mark said...

Ace,

See Kerr's analysis as to why you are wrong on the FISA. You're right, agent of a foreign power may be a US person. However, there's still a prohibition on wiretapping a US person, even if he's an agent of a foreign power. That section doesn't contain an exception "unless a US person is an agent of a foreign power."
The most logical reading is Kerr's, i.e. Congress intended to allow wiretapping without court order unless "US persons" were involved.

Ace said...

The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the President may, as has been done, delegate this authority to the Attorney General.”

“It is important to understand, that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities.”
- Jamie Gorelick testifying before the Senate Intelligence Committee on July 14, 1994

wildaboutharrie said...

Also, my understanding is the wiretapping involes people with "links" to al qaeda, not just members of al qaeda.

Gonzales and the President are not defending this under FISA because they know it isn't covered under it.

Ace said...

That section doesn't contain an exception "unless a US person is an agent of a foreign power."


Mark, I already laid out how the person is an agent of a foreign power

Per § 1801 (b)(2)(C):
“Agent of a foreign power” means—
knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;


--Kerr is flat wrong.
You are flat wrong.

Ace said...

To be clear, and I don't know how you or Kerr miss this:
§ 1801 (b)
“Agent of a foreign power” means—

(2) any person who—
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;

(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).

-----------------------

It's all right there for you...

wildaboutharrie said...

"In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said."

http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=2

So, if the NYT article is accurate, I don't see how this is authorized without a warrant...am I missing something?

Ann Althouse said...

Ace: "To be clear, and I don't know how you or Kerr miss this..."

How could I miss it? Simple: I've never even purported to analyze the statute. I can see it's complex, and I've never studied it. I've just chided people who are jumping ahead and saying what it means. I'm not myself doing the thing I'm chiding others for doing.

Ace said...

Ann, the "you" was not directed at you, it was at mark.

I apologize for the lack of clarity on that.

-----------------------
So, if the NYT article is accurate, I don't see how this is authorized without a warrant...am I missing something?


To be as simple as possible:

1. FISA Authorizes Warrantless Surveillance on "the contents of communications transmitted by means of communications used exclusively between or among foreign powers"

2. “Foreign power” means—
(4) a group engaged in international terrorism or activities in preparation therefor;

3. Anyone engaged in international terrorism is an “Agent of a foreign power”

This is all in FISA

wildaboutharrie said...

Right, but if I'm "linked", what does that mean? If my cousin is a terrorist and my number is in his computer, and I'm just living my life in Jersey City, and I sometimes call my aunt in Saudi Arabia, does the NSA need a warrant?

Mark said...

Ace,

I understand that US person can be an agent of foreign power. Nobody is arguing about it. However, the statute still prohibits eavesdropping on US persons, even if they are agents of foreign power. The section that prohibits eavesdropping on "US persons" does not contain exceptions for "US persons who are agents of foreign powers".
The statute does two things: a) allows eavesdropping on agents of foreign powers; b) prohibits eavesdropping on US persons. Even if a US person is an agent of foreign power, the statute still prohibits warrantless eavesdropping.

Mark said...

Ace,

In fact, it's even clearer than I thought. In part A (1), the statute broadly allows warrantless surveillance of agents of foreign powers. And you're right, in the definition of "agents of foreign powers" there's no exception for US persons. But then the following subsection of the statute (B)makes it clear that US persons are excluded from warrantless surveillance.

A1) warrantless surveillance is allowed against agents of foreign powers

B) there has to be substantial likelihood that the surveillance will not intercept communications by a US person.

I am sure if you re-read the statute, you'll come to the same conclusion. Otherwise, the subsection B is superfluous.

Sloanasaurus said...

Who cares what the statute says.

The Preseident has all the power regarding relations and activities with foreign powers. Congress cannot take away those rights (they can only "defund" them).

The 4th amendment prohibits "unreasonable" searches.

I want to hear someone argue that it is unreasonable to listen to a phone call made by someone in the U.S. to someone outside the U.S. when there is evidence that the someone in the U.S. is connected to foreign terrorists.

Mark said...

Sloan:

In your words "Who cares what the statute says," you pretty much sum up the attitude of this Administration to the law.

The answer is: we care and everyone should care since we are a nation of laws, not men.

TidalPoet said...

Mark,

Your answer sums up the lefts entire attack on our ability to fight the GWOT.

Effective.

Even in the face of blatant hypocrisy by your own party, you flail in the face of reason, law, and good old fashioned American 'get it done' spirit.

Usama is proud of you and your parties efforts. I'm sure the gold star is coming.

Mark said...

TidalPoet:

Your answer is not even intelligible and does not merit any response. Please try to formulate arguments before you launch your accusations.

wildaboutharrie said...

Sloan, maybe I'm the only one who cares about this aspect, but what do you think "connected to foreign terrorists" means? How "connected" should a US citizen have to be for the NSA to bypass getting a retroactive warrant?

Or does anyone have any input on this question here?

Ace said...

Ace,

I understand that US person can be an agent of foreign power. Nobody is arguing about it. However, the statute still prohibits eavesdropping on US persons, even if they are agents of foreign power. The section that prohibits eavesdropping on "US persons" does not contain exceptions for "US persons who are agents of foreign powers".


Mark,
once you become an agent of a foreign power, you are no longer a US Person per the statute.
Which is why is clearly says any person

I also redirect you to:

FISA was created with the express purpose to collect “foreign intelligence information,” which is defined under section 1801 subsection (e)(1)(B) as “information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against sabotage or international terrorism by a foreign power or an agent of a foreign power.”

-------------
Very clear.

Mark said...

wild:

The FISA plainly prohibits unwarrantless surveillances of US citizens or permanent residents, no matter how connected to Al Qaeda they are.

Marty Lederman at

http://balkin.blogspot.com/

explains the dangerousness of AG Gonzales' position:

This means at least three things:

1. Because it's not necessary that even one of the parties to the communication have been part of Al Qaeda, it explains why a FISA court would not have granted authority for these intercepts in the first place -- which is why the Administration could not work within the existing (very deferential, pro-government) authorities.

2. Obviously, the NSA protocol is simply not covered by the terms of the AUMF itself, because it reaches conduct by NSA against communications of persons who are not "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

3. It's also presumably not a "fundamental incident of war" for the Executive to wiretap a communication between two persons, neither of whom is suspected of being part of (or an agent of) the enemy (let alone the military arm of the enemy). This is not only another reason that the AUMF (and Hamdi) does not authorize these interceptions; it also means that not even the boldest assertion of Commander-in-Chief authority would support this program.

Mark said...

Ace,

Come on, you're better than that. The statute does not state that you cease to become a US person when you become an agent of foreign power. Otherwise, why would section (B) be there at all? It would be not needed, since section (A)(1) allows intercepts by agents of foreign powers.

Ace said...

I am sure if you re-read the statute, you'll come to the same conclusion. Otherwise, the subsection B is superfluous.


No, as noted "by a US person"

Does someone getting a call from a foreign power (or agent of) qualify to that?

Mark said...

I.e., subsection A(1) provides that ONLY communications between agents of foreign powers can be intercepted. Then, subsection B specifies that communications between US persons cannot be intercepted. You have to read the both subsections together.
Your interpretation will render subsection (B) meaningless since all section (A) allows is intercepts between agents of foreign powers. I.e., there would be no need for subsection (B) if subsection (A) allowed intercepts of US persons' communications.

Ace said...

The statute does not state that you cease to become a US person when you become an agent of foreign power. Otherwise, why would section (B) be there at all?

Mark, why does 1801 (b)(2)say any person who— ??

To me, it's plainly obvious why section 1801 (B)(2) is there:
To prevent domestic spying without the "as reasonable" standard per Justice White’s conccurrence in Katz.

Ace said...

Your interpretation will render subsection (B) meaningless since all section (A) allows is intercepts between agents of foreign powers. I.e., there would be no need for subsection (B) if subsection (A) allowed intercepts of US persons' communications.


Mark, think about what you're saying.

I'm arguing that once you either engage in international terrorism, or "knowingly aids or abets any person" 18021 (2)(E) you lose your US Person designation under the statute.

You are saying that anyone, without noting the above, doesn't have a US Person designation.

Mark said...

Ace,

"Mark, why does 1801 (b)(2)say any person who— ??

To me, it's plainly obvious why section 1801 (B)(2) is there:
To prevent domestic spying without the "as reasonable" standard per Justice White’s conccurrence in Katz."

No. OK, let's do it this way, maybe it'll be more clear.
Here's the text of the statute:

50 USC 1802--(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party;


First, it is clear that the statute is not about domestic spying. It says "to acquire foreign intelligence information."

The AG has to certify that:
A) the surveillance is solely directed at
i)communication b/w foreign powers

and

B) that there's no likelihood that the surveillance will capture any communications to which a US person was a party.

Do you see that (B) complements (A). The AG has to certify that both (A) and (B) are met, i.e. it has to be a) b/w foreign powers and b) not US persons.

It doesn't matter that it says "any person" in "A". "B" makes it clear that "US persons" are excluded from the section.
(B) can't be there to prevent domestic spying, because first (A) has to be met: i.e, it has to be between foreign powers.

Mark said...

Ace,

Again, if your intepretation is correct that a US Person ceases to be a US person once he engages in international terrorism, then section (B) is not needed. Section (A) still requires that communication be between foreign powers; so section (B) is not needed to prevent domestic spying.
Please read the statute again, you'll come to the same conclusion as Kerr and I (I am not saying I am like Kerr; just that we arrived at the same conclusion).

Ace said...

mark,
I think it's pretty clear that domestic spying is illegal, which is what I meant by that comment.

B) can't be there to prevent domestic spying, because first (A) has to be met: i.e, it has to be between foreign powers

Um, what is the opposite of "foreign"
Domestic, right?

What you can't explain to me if your interpretation is correct is why 1801 (b)(1) says:
b) “Agent of a foreign power” means—
(1) any person other than a United States person, who—

And then goes on in part in (b)(2) any person who—

----------------

If a US Person could clearly not be the subject of surveillance, why have the any defined?

Ace said...

Again, if your intepretation is correct that a US Person ceases to be a US person once he engages in international terrorism, then section (B) is not needed.

Yes it clearly is.

1. If I am not "knowingly and purposely" engaging in the defined activities, they can't subject me to warantless surveillance

2. Per #1 above, my communications with another US Person are protected as well.

Mark said...

Ace,

The statute is long, and other sections also use the term "agent of a foreign power.It's not uncommon for first articles of the statutes to have definitions.

"Um, what is the opposite of "foreign"
Domestic, right?"

Yeah. So what? I guess I don't see what you're getting at. (A) requires that the communications be between foreign powers. What's the point of (B)?

Again, for other parts of the statute, it may be that agent of a forein power may be a US person. But for the section we are discussing, (B) makes it clear that commmunications involving US persons are excluded.

Mark said...

Again, if your intepretation is correct that a US Person ceases to be a US person once he engages in international terrorism, then section (B) is not needed.
Ace,

"Yes it clearly is.

1. If I am not "knowingly and purposely" engaging in the defined activities, they can't subject me to warantless surveillance

2. Per #1 above, my communications with another US Person are protected as well. "


No, no, no.

Per (A), they can't subject you to a surveillance unless you're an agent of a foreign power. So, without (B), you'd still be protected if you did not "knowingly and purposely" engaged, simply because (A) would not be met.

Mark said...

By the way, Ace, I applaud you for at least trying to understand what the statute says, instead of dismissing it by saying "who cares what the statute says".

Mark said...

I think it's relevant to the discussion: (from http://www.thinkprogress.org/ )


Conservative Scholars Argue Bush’s Wiretapping Is An Impeachable Offense »

Conservative scholars Bruce Fein and Norm Ornstein argued yesterday on The Diane Rehm show that, should Bush remain defiant in defending his constitutionally-abusive wire-tapping of Americans (as he has indicated he will), Congress should consider impeaching him.

QUESTION: Is spying on the American people as impeachable an offense as lying about having sex with an intern?

BRUCE FEIN, constitutional scholar and former deputy attorney general in the Reagan Administration: I think the answer requires at least in part considering what the occupant of the presidency says in the aftermath of wrongdoing or rectification. On its face, if President Bush is totally unapologetic and says I continue to maintain that as a war-time President I can do anything I want – I don’t need to consult any other branches – that is an impeachable offense. It’s more dangerous than Clinton’s lying under oath because it jeopardizes our democratic dispensation and civil liberties for the ages. It would set a precedent that … would lie around like a loaded gun, able to be used indefinitely for any future occupant.

NORM ORNSTEIN, AEI scholar: I think if we’re going to be intellectually honest here, this really is the kind of thing that Alexander Hamilton was referring to when impeachment was discussed.

Sloanasaurus said...

"....In your words "Who cares what the statute says," you pretty much sum up the attitude of this Administration to the law...."

That is BS and you know it.

The statute unconstitutionally restricted the president.

Besides, I don't get what your beef is. Do you seriously think that the President should be required to get warrants to evesdrop on persons within the united states who the Administration believes is connected to foreign terror. You seem awfully concerned about the civil liberties of potential terrorists. More so than protecting this country.

Or are you just all excited because you think Bush may have violated a federal statute.

Ace said...

mark,
maybe the statute is sloppy.

As I've pointed out, if a US Person can't be the subject of surveillance soley because they are a US Person, then why can any person be an "agent of a foreign power" (thus subject to warrantless surveillance)?

I do see your point, I'm just thinking (B) is there to codify an additional safeguard to ensure this is reasonable for US National Security.

Ace said...

On its face, if President Bush is totally unapologetic and says I continue to maintain that as a war-time President I can do anything I want – I don’t need to consult any other branches – that is an impeachable offense.

totally dishonest.
When are people going to give up on the "didn't consult" nonsense?

It's also worth noting that Fein doesn't use the word "impeachment" here

Mark said...

Sloan:

"That is BS and you know it.

The statute unconstitutionally restricted the president."

No, it's not BS. Who gets to decide whether the statute is constitutional? If it's the president, then by your logic he can do whatever the hell he wants by claiming that any statute limiting his authority as CiC is unconstitutional. That's not how our system works; courts decide whether a statute is constitutional.

Mark said...

Ace,

Yes, I agree that the statute is not written in the best possible way. I also see your point, but at least we seem to agree that under your interpretation, section (B) is superfluous. Courts read the statutes to avoid having any sections being superfluous, which is why I believe, my interpretation is correct.

Whether or not the FISA is constitutional may be debatable; I believe it is, but in any case, it's a question for courts to decide, not for president.
I think any principled conservative should see the dangers of giving unlimited power to the Executive.

Sloanasaurus said...

Mark, everything the president does is a possible impeachable offense. Impeachment is all about politics, it is all about what the Congress decides.

Democracts are free to run on impeaching the president in the 2006 elections. They should argue that Bush's evesdropping on potential terrorists deserves impeachment and that if they are elected they will impeach Bush.
Democrats would lose another 30 seats in the house.

You compare Clinton to Bush. Rememeber that Clinton lied under oath (like Scotter Libby who unlike Clinton was indicted) to protect his own ass. His crime was intentional and had no moral justification.

Bush was trying to protect the country from terror attacks and apparently has been successful at protecting the country. Also 99.99% of the citizens civil rights have not been reduced one bit.

So which act do you think is more outrageous? Clinton's obviously illegal and selfish act to protect his own ass or Bush's may be legal or may not be legal act to protect the country from catastrophic attack.

I am sure some crazies believe that Bush is really evesdropping for his own personal power. I would like to hear ho Bush's personal power is improved by this evesdropping.

Mark said...

And Sloan, I care about civil liberties of all of us, not just suspected terrorists. Again, listen to Benjamin Franklin's words, "those who choose security over liberty deserve neither."
We can be both secure and have our civil liberties safeguarded.
It's sad that you don't see "what the beef is", the "beef" is making sure that the Executive's power has necessary safeguards and is not abused. We can't just "trust" that the Executive won't abuse its power; the Constitution and the laws set up checks and balances precisely to provide safeguards beyond the trust that the Executive won't abuse the power.

Mark said...

The potential for abuse of the Executive's power is always present, especially with this President who apparently doesn't believe in checks and balances.
There was a revelation reported just today about the FBI's surveillance of peaceful domestic organizations, such as PETA. We don't even know what the NSA is eavesdropping on.
Again, we can't just trust the President that he's doing everything for national security. Even if he said truth 100% of the time, it still would not be enough because of the potential for abuse; we are all humans and we all can abuse power. That's why we have checks and balances, specifically, warrant requirement for surveillance of US persons. That's not an onerous requirement at all, and it won't hinder the war in any way.
Fein is a conservative, serving as deputy AG in the "liberal" Reagan's administration. I am honestly perplexed by many current conservatives' disregard for civil liberties. They should listen to Benjamin Franklin and Pat O'Henry.

Sloanasaurus said...

I agree, let Congress review who Bush was spying on. If it was political opponents, then Congress can do its will and punish Bush or impeach him. If the spying was justified then everyone can feel good about it.

By the way, do you support conceal carry laws.... I do.

Ill bet all these crying liberals are opposed to conceal-carry. They are so concerned about our civil liberties.

Sloanasaurus said...

"...I am honestly perplexed by many current conservatives' disregard for civil liberties...."

I just don't think evesdropping on terrorist connected persons weakens our civil liberties.

Keeping me from owning a handgun. That is something else.

Mark said...

Sloan:

Funny how you change the subject to gun debate. This is not a proper place for that debate. I am not against concealed weapons at all. But the potential for the abuse of civil liberties of Americans by the eavesdropping of the "trust me" President is much greater than the restrictions on carrying of the concealed weapons.

Ace said...

but at least we seem to agree that under your interpretation, section (B) is superfluous. Courts read the statutes to avoid having any sections being superfluous, which is why I believe, my interpretation is correct.


Mark, to accept your premise, you must:

1. Throw out the statute's definitions. You can't believe some and not others

2. Believe Section 1801 (2)(A)-->(E) are superfluous, but 1802 (B) is not

3. Congress wrote a law saying any person can be an agent of a foreign power and thus subject to warrantless surveillance but didn't think a US Citizen or resident alien could possibly qualify under that scenario.

--Makes sense.

Mark said...

Ace,
Just drop it; you're wrong on the FISA and move on.
Under my interpretation, there's no need for any sections to be superfluous; section (B) complements section (A) to specifically exclude US persons. There's no need to throw out any definitions. Again, (A) says that foreign powers can be eavesdropped. The general definition of "foreign power" includes US citizens. The term "foreign power" is used throughout the statute. But in that section, subsection (B) specifically excludes US persons.
I am willing to bet $1 million (which I don't have) that my interpretation is correct. A lawprof who know much more in this area (Kerr, Muller, Dershowitz, Lederman) agree with me.
You're welcome to believe what you want, but my interpretation does not render any section superfluous, while your does.
I will not argue about the FISA again, I think we beat it to death.

Ace said...

Under my interpretation, there's no need for any sections to be superfluous

You mean except for those I outlined, correct?

The general definition of "foreign power" includes US citizens. The term "foreign power" is used throughout the statute. But in that section, subsection (B) specifically excludes US persons.


So which is it?
Are you saying US Persons can't be an agent of a foreign power?

It's comical to watch you avoid these questions, declare yourself a "winner" and run away.

Coward.

Ace said...

but my interpretation does not render any section superfluous, while your does.


No it does not.

I've already explained it to you.

You not accepting it to justify the silliness of your position doesn't make it so.

Remember, you said:
"Courts read the statutes to avoid having any sections being superfluous"

And under your interpretation an entire section in 1802 is thus superfluous.

Just run away coward, you're wrong.
Just drop it.

Mark said...

OK, Ace, you enticed me here again...For the last time.


By the way, your "coward" insult was not appreciated. I just thought that we've explained our positions the best we could and nothing could be gained from our back-and-forth. But if you insist, it's ok.


"Under my interpretation, there's no need for any sections to be superfluous

You mean except for those I outlined, correct?"

No. I explained how those sections are not superfluous in my previous posts. The definitions apply to the whole statute; in some parts of the statute, an agent of a foreign power may include a US person; however, section 1802(1)(a)(B) precludes this for the surveillance purposes.

"Remember, you said:
"Courts read the statutes to avoid having any sections being superfluous"

And under your interpretation an entire section in 1802 is thus superfluous."


No, nothing is superfluous, as I explained to you repeatedly. US persons can be agents of foreign powers. That's precisely why there's 1802(a)(1)(B): to exclude US persons (as agents of foreign powers) from the warrantless surveillance.

Again, try to understand that US persons can be agents of foreign power. They can. That's exactly why (B) excludes US persons; becaise they may be agents of foreign powers.


By the way, there's a very good discussion on the Volokh site; none of the commmenters there (and they are smart!) raised your interpretation. Are we all wrong and you're right?

And if you engage in personal insults again, I won't respond to your posts at all.

Mish said...

Maybe I'm missing something fundamental in all of this but isn't the requirement of obtaining a warrant merely to ensure the resulting evidence (if any) will be permissible for use in a prosecution in a court of law? It seems apparent to me that any information obtained by the wiretaps in question would be excluded in a criminal proceeding. So the administration is basically saying that gathering information is more important than prosecuting anyone and that they are willing to forego the possibility of using this information in court. Those being listened to in the US should almost be glad...it's like they get immunity for anything said while being tapped! Wouldn't it only be a violation if they actually arrested someone in the US based solely on the evidence obtained by one of these wiretaps? Sorry if that rambled...

Ace said...

mark,
I'm quite positive you see the incongruity in arguing an agent of a foreign power can be a US Citizen subject to warrantless surviellance, but US citizens can't be subjected to said surveillance.

Nothing you are posting is addressing that.

Further:
section 1801, subsection (i): "United States person," which includes citizens, legal aliens, and businesses, explicitly "does not include a corporation or an association which is a foreign power."


It is very clear that once you are an agent of a foreign power, you are not a US Person.

Ace said...

Again, try to understand that US persons can be agents of foreign power. They can. That's exactly why (B) excludes US persons; becaise they may be agents of foreign powers.


So you're left with the surveillance can be done on anyone but a US citizen despite the statue expressly saying otherwise.

wildaboutharrie said...

Actually, Mark, one poster did - The Ace!

BTW Ace I appreciated the reference to the 1982 ruling on warrantless tapping. I searched on it - I had never heard of the case.

Mark,, I'm inclined to side with you, as near as I can wade through, as surely the AG has had years to study this is not using FISA to argue this (quite the contrary).

But even if Ace were correct, I have $5 that says they are not tapping only terrorists or supporters of terrorist acts without warrants.

Mark said...

Ace,

No. Even Captain Quarter's (very conservative blog) accepts that warrantless wiretapping of US persons is illegal under FISA.

"I'm quite positive you see the incongruity in arguing an agent of a foreign power can be a US Citizen subject to warrantless surviellance, but US citizens can't be subjected to said surveillance."

Again, there's no incongruity whatsoever. As I explained countless times, the general definition section applies to the whole statute. Section 1802(a)(1)(A) is a specific section which doesn't contain any definitions. It refers to "foreign powers" (which are defined for the whole statute in the definitions sections). Precisely because US person can be an agent of foreign power (under the definition), there is a section 1802(a)(1)(B) which specifically excludes US persons from warrantless surveillance.
The statute is complicated but this is relatively clear: there's no warrantless surveillance of US persons, even when they are agents of foreign powers. There's no any incongruity. For some parts of the statute, it's relevant that US person can be an agent of foreign power; but the FISA has more safeguards for US persons: 1802(a)(1)(B) (no warrantless surveillances); etc. There are other sections in the FISA affording greater safeguards to US persons.

Mark said...

"So you're left with the surveillance can be done on anyone but a US citizen despite the statue expressly saying otherwise. "


Half-right. The first part is right: the warrantless surveillance can be done on anyone but a US person. The second part is wrong becuase the statute doesn't expressly say otherwise; in fact, it expressly says the first part.

Ace said...

well, to mark's question I don't know, but in my mind it's something that is fascinating to debate.
The Admin claims the inherent authority, but I think all of us would like to see these FISA arguments litigated.

wildaboutharry,
691 F.2d 272, Jabara v. Webster, (CA.6 (Mich.) 1982)

Mark,
well, I guess we are at the point we just have to agree to disagree.

I can only say you are throwing out definitions that don't fit your premise, and I am specifically defining the parts which you are talking about.

Again, revisit the definition of 'United States Person'

Mark said...

Ace,

Here's the definition of US Person:

i) “United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.


You're right, a corporation or an association which is a foreign power is not a US person. This is included because traditionally, under US law, a corporation or an association are often treated as persons (for standing requirements, criminal liabilities, etc). However, if I am a US citizen who's an agent of foreign power, I am still a US person because US persons includes US citizens. I am not a US person because I am an agent of foreign power, but I am a US person because I am a US citizen. Nowhere it says: "but doesn't include US citizens or permanent residents who became members of corporations or associations which are agents of foreign powers". It plainly states that it includes US citizens; it is irrelevant that it doesn't include corporations or associations which are members of foreign powers.

I see the point that you're trying to make; but your reading is untenable; demands that section (B) is superfluous; and is contrary to the intent of the FISA. Again, don't you think that the Administration would have argued your point if it were correct? Nobody seriously argues that the FISA allows warrantless wiretapping of US persons.

Mark said...

Ace,

Actually, your point falls apart completely upon closer reading of the relevant section. Notice how 1802(1)(a)(A) does NOT refer to AGENTS of foreign power (in contrast to, say, section 1804(a)(4)(A)). So, there's no way that a US citizen can be plausibly read to be a non US person. Your invocation of definition of "agent of foreign power" is irrelevant because it has to be:

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;


I.e., IT DOES NOT COVER AGENTS OF FOREIGN POWERS.

And it's not an oversight, because 1804 specifically covers BOTH foreign powers and agents of foreign powers.

I.e., the bottom line is that the intercepted communication can only be between foreign powers. The foreign powers are defined as:

1) a foreign government or any component thereof, whether or not recognized by the United States; (2) a faction of a foreign nation or nations, not substantially composed of United States persons; (3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments.


Therefore, a US person who's an agent of a foreign power is not covered. QED.

Ace said...

mark,
I was going to note earlier that I think the Admin is arguing the "inherent authority" because it's been argued by previous Administrations, and cited by the courts.

Anyway, assuming you are correct on FISA. Would you support corrections to the law so the Executive could use warrantless surveillance as I'm suggesting?

Also, are you in agreement with Kerr that it is likely a technical violation of FISA but constitutional?

Mark said...

Subsection 1801(a)(1)(4) defining foreign power to mean a group engaged in international terrorism is irrelevant because 1802(a)(1)(A) only applies to foreign power as defined in 1801(a)(1)-(3).

Hope it convinces you!

Ace said...

(2) a faction of a foreign nation or nations, not substantially composed of United States persons;

Clearly means you could be a US Person, or an agent of a foreign power, or they wouldn't have put the "substantially composed" language in.

That also covers 1802 (A)(i)

Mark said...

Ace,

I think I would support amending FISA to allow warrantless surveillances in cases of international terrorism; provided there are some safeguards: congressional oversight, frequent re-evaluations, etc.

I am all for national security; I just want it to be done in a proper way, without violating the laws.

Mark said...

"(2) a faction of a foreign nation or nations, not substantially composed of United States persons;

Clearly means you could be a US Person, or an agent of a foreign power, or they wouldn't have put the "substantially composed" language in.

That also covers 1802 (A)(i)"

Not quite. As I said, a US person can well be an agent of foreign power, under the FISA. But 1802(a)(1)(A) only applies to Foreign Powers. If I am an agent of foreign power, I am not "a faction of a foreign nation or nations, not substantially composed of United States persons."
I am specifically an agent of foreign power, as recognized by the statute; and 1802(a)(1)(A) doesn't apply to me.

Ace said...

See you in court then counselor!

Mark said...

About Kerr, he didn't say it's in technical violation but otherwise constitututional. He said it probably violates FISA but probably doesn't violate the Constitution. I agree, but I think violating the FISA is not a technical violation; if you commit a murder, you did not do anything unconstitutional but you nevertheless did an illegal act and my die for it in 38 states. I wouldn't characterize it as a technical violation. A statute is a law, whether one agrees with it or not.

Ace said...

mark,
but if you are a member of the faction you are then not a foreign power?
What is the definition of 'faction'?

You are right re: Kerr.
I read someones (mis)intrepretation of his post.

Ace said...

We're back to:

(2) information with respect to a foreign power or foreign
territory that relates to, and if concerning a United States
person is necessary to -
(A) the national defense or the security of the United
States; or
(B) the conduct of the foreign affairs of the United
States.


------------------
The more you read this the more it just doesn't fit into a a neat little box...

Mark said...

"but if you are a member of the faction you are then not a foreign power?
What is the definition of 'faction'?"


Ace, of course you are not then a foreign power. A foreign power is not defined as "member of the faction", it's defined as "a faction".
What's the definition of faction? I think it has to be more than one. In any case, if I am a US person, even if we assume that there can be a one person faction, I am still not a faction because my "faction" is substantially (in fact, exclusively) composed of US persons. :)

Mark said...

"(2) information with respect to a foreign power or foreign
territory that relates to, and if concerning a United States
person is necessary to -
(A) the national defense or the security of the United
States; or
(B) the conduct of the foreign affairs of the United
States."


We're not really back to it because 1802 (allowing warrantless surveillance) still requires the information to be of foreign powers. We established that US persons are not foreign powers. Ergo, warrantless surveillance of US persons is illegal under the FISA.

Do we want to amend the FISA? Perhaps. Let's hold hearings, weigh the evidence and do as we must. But let's not violate the law while it's still the law. It is an impeachable offense.

TidalPoet said...

Mark,

"Your answer is not even intelligible and does not merit any response."

Yet you did and with a snarky little insult.

My post was quite easy to understand. You are flailing around doing all you can to prove that Bush is using illegal means to persue the "War on Terror." Even when people present reasoned and thought out alternatives to your already finalized decision that Bush is a criminal, you dismiss it by repeating yourself, over and over again.

You, and those like you, are undermining the United State's ability to fight against enemies that don't stand up to be counted.

Don't tell me you haven't stooped to insults or that I'm not worth your time, "coward."

Ace said...

mark,
don't you find it odd FISA mentions US Persons in the context of "Foreign intelligence information" which may include information concerning a United States person that is necessary to "the national defense or the security of the United States" and "the conduct of the foreign affairs of the United States."

while holding your position?

Further, I direct you to U.S. Signals Intelligence Directive, dated July 27, 1993, which is the primary regulation governing NSA's operations.
Section 4 of USSID 18: communications which are known to be to or from U.S. persons can't be intentionally intercepted without: (a) the approval of the FISA court is obtained; OR (b) the approval of the Attorney General of the United States with respect to "communications to or from U.S. PERSONS outside the United States...international communications"

-----
I saw no mention of this by Kerr.

Funny, that huh?

Mark said...

"mark,
don't you find it odd FISA mentions US Persons in the context of "Foreign intelligence information" which may include information concerning a United States person that is necessary to "the national defense or the security of the United States" and "the conduct of the foreign affairs of the United States."

No, I don't find it odd at all. As I said, US persons can be agents of foreign powers and can have valuable foreign intelligence information. Nevertheless, Congress provided greater safeguards for snooping on US persons. All the FISA requires is a warrant from the FISA court (99.995% approval rate). That's not a lot to require by any stretch of imagination.

"Further, I direct you to U.S. Signals Intelligence Directive, dated July 27, 1993, which is the primary regulation governing NSA's operations.
Section 4 of USSID 18: communications which are known to be to or from U.S. persons can't be intentionally intercepted without: (a) the approval of the FISA court is obtained; OR (b) the approval of the Attorney General of the United States with respect to "communications to or from U.S. PERSONS outside the United States...international communications"

Can you provide a link to this information? Some thoughts: first, this Directive has no binding legal authority, and second, I know that FISA was amended in 1995. I am not sure if these amendments concerned relevant parts of the statute; they well may have. I have very strong suspicion that the Directive did not contradict the law, but obviously more legal research is required. I think the Administration would have trumpeted this Directive very loud if it really supported its position. In any case, the Directive does not supercede law.


Tidalpoet:
Why do you hate the United States?
That's about at a level of your argument.

bookman said...

"bookman said...

his justification is the Yoo doctrine. thats all. its a nonsensical interpretaion of the presidents 'wartime powers' which essentially grants him the ability to do anything he pleases despite legality of it.

Prof. Althouse, you and my UW polisci prof should get into a spat over this... it would be entertaining"


-alright fine.... i understand your arguments earlier in the comments... in order for the courts to take up the issue, Congress has to declare their position through a resolution or some legislation... the 'political questions' doctrine and such.... however, i still find the concept quite absurd... plus this doctrine was virtually nonexistent for the first 150 years of the country, esp. in the realm of foreing policy

Ace said...

Hey mark,
Actually USSID 18 wholly and completely validates everything I've been saying.

Example:
b. With the approval of the Attorney General of the United States, if:

(1) The COLLECTION is directed against the following:
(a) Communications to or from U.S. PERSONS outside of the UNITED STATES, or
(b) International communications to, from, [1 line redacted.]

(c) Communications which are not to or from but merely about U.S. PERSONS (wherever located).

(2) The person is an AGENT OF A FOREIGN POWER, and

(3) The purpose of the COLLECTION is to acquire significant FOREIGN INTELLIGENCE information

-----------------------------

Specifically note (2) above.

Ace said...

I think the Administration would have trumpeted this Directive very loud if it really supported its position. In any case, the Directive does not supercede law.


No, but as you are well aware, regulations are written (by the lawyers) to ensure the law is followed.

The Admin may not have wanted to discuss FISA because the 'Inherent Authority' argument is both well established and in case law and "an explanation of why the program may not violate FISA would require them to explain the technical details of how the program works" as Kerr says.

Mark said...

Ace, not so fast.

"b. With the approval of the Attorney General of the United States, if:

(1) The COLLECTION is directed against the following:
(a) Communications to or from U.S. PERSONS outside of the UNITED STATES, or
(b) International communications to, from, [1 line redacted.]

(c) Communications which are not to or from but merely about U.S. PERSONS (wherever located).

(2) The person is an AGENT OF A FOREIGN POWER, and

(3) The purpose of the COLLECTION is to acquire significant FOREIGN INTELLIGENCE information

-----------------------------


All (1), (2), and (3) have to be satisfied. Do you see "and" after (2)? In our hypo, to satisfy (1), you have to rely on (b), since (a) and (c) are clearly inapplicable. However (b) contains a redacted line and so it's not clear what it says. Therefore, the released Directive does not support your position. We have to know what (1)(b) says before we judge.

In any case, your interpretation of FISA was wrong as I explained in my previous posts. :)

Ace said...

All (1), (2), and (3) have to be satisfied. Do you see "and" after (2)?

I'm not disputing that.

In our hypo, to satisfy (1), you have to rely on (b), since (a) and (c) are clearly inapplicable.

Huh?

Relying on b makes my point and the one the Admin is making:
These are people communicating with al Qaeda abroad.

In any case, your interpretation of FISA was wrong as I explained in my previous posts. :)

No, as I've noted "agent of a foreign power" is indeed relevant.