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.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:
"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.
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.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.
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."
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.
Posts
64 comments:
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.
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.
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.
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.
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.
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: 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.
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,
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.
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.
Anyone who has practiced criminal law knows that obtaining a warrant is almost as easy as indicting a ham sandwich and much quicker.
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.
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.
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.
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?
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!
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.
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.
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.
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."
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!
>>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.
--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......
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.
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.
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.
"Comfortable" should be "uncomfortable," of course. The rest of typos etc. I'll let be.
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!
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.
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.
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).
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.
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.
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.
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/
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.
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: Sorry I came down so hard on you. I just hate overstatements about law, especially when they seem aimed at skewing political opinion.
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.
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.
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.
Thanks, Mark. I appreciate your contributions to this forum, which I really want to be a place where intelligent, decent people can talk rationally.
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.
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.
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.
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.
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.
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.
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.
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.
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
just a friendly incitation.. i mean invitation... (since i'm not really posting covertly)
"...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.
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: "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.
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,
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.
"....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.
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.
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.
"...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,
"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."
"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
Post a Comment