January 20, 2006

Defending the NSA surveillance program.

The Department of Justice has a 42-page legal analysis of the much-criticized NSA surveillance program (PDF):
The [Authorization for Use of Military Force] places the President at the zenith of his powers in authorizing the NSA activities. Under the tripartite framework set forth by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring), Presidential authority is analyzed to determine whether the President is acting in accordance with congressional authorization (category I), whether he acts in the absence of a grant or denial of authority by Congress (category II), or whether he uses his own authority under the Constitution to take actions incompatible with congressional measures (category III). Because of the broad authorization provided in the AUMF, the President’s action here falls within category I of Justice Jackson’s framework. Accordingly, the President’s power in authorizing the NSA activities is at its height because he acted “pursuant to an express or implied authorization of Congress,” and his power “includes all that he possesses in his own right plus all that Congress can delegate.” Id. at 635.

The NSA activities are consistent with the preexisting statutory framework generally applicable to the interception of communications in the United States—the Foreign Intelligence Surveillance Act (“FISA”), as amended, 50 U.S.C. §§ 1801-1862 (2000 & Supp. II 2002), and relevant related provisions in chapter 119 of title 18.1 Although FISA generally requires judicial approval of electronic surveillance, FISA also contemplates that Congress may authorize such surveillance by a statute other than FISA. See 50 U.S.C. § 1809(a) (prohibiting any person from intentionally “engag[ing] . . . in electronic surveillance under color of law except as authorized 1 Chapter 119 of title 18, which was enacted by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510-2521 (2000 & West Supp. 2005), is often referred to as “Title III.” by statute”). The AUMF, as construed by the Supreme Court in Hamdi and as confirmed by the history and tradition of armed conflict, is just such a statute. Accordingly, electronic surveillance conducted by the President pursuant to the AUMF, including the NSA activities, is fully consistent with FISA and falls within category I of Justice Jackson’s framework.

Even if there were ambiguity about whether FISA, read together with the AUMF, permits the President to authorize the NSA activities, the canon of constitutional avoidance requires reading these statutes in harmony to overcome any restrictions in FISA and Title III, at least as they might otherwise apply to the congressionally authorized armed conflict with al Qaeda. Indeed, were FISA and Title III interpreted to impede the President’s ability to use the traditional tool of electronic surveillance to detect and prevent future attacks by a declared enemy that has already struck at the homeland and is engaged in ongoing operations against the United States, the constitutionality of FISA, as applied to that situation, would be called into very serious doubt. In fact, if this difficult constitutional question had to be addressed, FISA would be unconstitutional as applied to this narrow context. Importantly, the FISA Court of Review itself recognized just three years ago that the President retains constitutional authority to conduct foreign surveillance apart from the FISA framework, and the President is certainly entitled, at a minimum, to rely on that judicial interpretation of the Constitution and FISA.
We've already heard this argument, but the new document makes the structure of the argument very clear: the activities should be seen as not violating FISA (because of the AUMF), but if a conflict with FISA is seen, the President still has the power (because FISA would be unconstitutional as an infringement of his Article II powers). The latter argument is also held up as a reason to interpret FISA not to see a conflict (because statutes should be interpreted to avoid difficult questions of constitutional law). That is, any ambiguities in coordinating FISA and AUMF should be resolved in favor of presidential power.

The document also deals with the question whether the Fourth Amendment is violated.

Here is the NYT article about this new document.

Orin Kerr says: "The new document is basically an appellate brief filed in the Court of Public Opinion." Well, Public, what do you think?


Steve Donohue said...

I'm not so sure the court of public opinion is ready for appellate briefs. Sound bytes yes; appellate briefs, no.

EddieP said...

I may or may not understand a legal brief, but if NSA flags my phone or my neighbor's for calls to Afganistan, I want the feds to look over our shoulders and try to interrupt terrorist activities. However, domestic call information subsequently used to prosecute either of us should be obtained via warranted search.

Unknown said...

I think that the Justice Department's analysis effectively indemnifies the President against impeachment on the grounds of FISA violations (even if such a thing were possible with the Republican House majority). If a future Democratic Congress decides to pursue such a course, the image of a president, acting in good faith on the basis of advice from the Justice Department, should give them pause.

David said...

The President, as Commander-In-Chief has the authority under Use Of Force to monitor information related to SIGINT, COMINT, HUMNIT, and ELINT.

One may assume correctly that certain key words will get flagged when used in any form.

I believe the latest is the use of Google search records for a specified week to track down child pornographers who may have crossed national and international borders for illegal purposes.

For our own protection we are under constant surveillance as a matter of course. The following is a partial list of surveillance techniques we, as citizens, face everyday;

A. video at the Bank and ATM's;
B. Video at high risk intersections;
C. Radio frequency monitoring gear available at Radio Shack, etc.;
D. Satellite surveillance for land use which can read your license plate;
E. Various databases available for a fee;
F. GPS tracking devices available for asset protection;
G. Telephone/cell phone/computer,Blackberry, Pager use tracking;
H. Private monitoring to protect property and provide security.

and the list goes on!

This situation is not about surveillance which has been ongoing for decades. It also ignores the surveillance foreign governments and business use on the U.S. to cut down on foreign Research and Devlopment costs.

The timing of this lawsuit is suspect and undoubtedly is meant to weaken the Bush Presidency and the war on terror.

It is no coincidence that we just took out some high echelon al qaeda types and UBL comes out of hiding for a statement.

Timing is everything!

Uncle Jimbo said...

This defense will resonate with the public only if they can understand the distinction between statutory and Constitutional authority.

I think it has the element of simplicity in it's favor. But it leaves open the charge that effectively then there is no oversight or check on this power.


Uncle J

Anonymous said...

Well, Public, what do you think?

What a cop-out!

As a conservative law professor, what do you think?

This is a teaching moment. You could help elucidate the issues for both conservatives as well as liberals. You could help move people off the fence. You could help people understand why this is important, or why it is not.

One of the biggest constitutional law conflicts of your career, of our time, and perhaps a turning point for the entire country and you refuse to offer your educated experience with a post that cowers instead behind your echo chamber.

Turn off the TV. Devote an evening to this. Take a stand. Show your stones.

Sloanasaurus said...

That is an easy question. Those who hate Bush and the war will oppose the wire tapping. Those who don't necessarily hate Bush will support it because the wire tapping is reasonable, which is why Bush is getting 66% support on the wire tapping (he is getting all the independent vote).

Being a traitor for partisan reasons in America is nothing new. Federalists who opposed the war of 1812 tried to circumvent the government from raising militias to fight the British (who were landing troops on American soil).

Dustin said...

Wouldn't she have to offer an opinion to echo, in the echo chamber, before she has somewhere to 'cower' behind?

Maybe she just sees the brief as self-explanatory for anyone with a bit of sense (of both reality and history). Cower!

Ann Althouse said...

Quxxo: You don't seem to realize that you're asking me essentially to "vote" for a side and exploit my appearance of authority. That is exactly what I'm not doing. Too bad if you don't see the reason to respect that.

The question "well, public what do you think?" is not me asking the public to decide for me, it's me recognizing the importance of the political debate about the issue, which really is up to the public.

I think the actual legal question is a difficult one and the President's argument is at least plausible. The point about resolving ambiguity in favor of not seeing a conflict to avoid the constitutional question is very strong. I'm sure that's not what you want to hear. As I've said before, if Congress doesn't want the President doing this, let it take an explicit stand on this precise matter.

john(classic) said...

Offhand comments:

(1) I thought the memo was very strong -- close to dispositive- on whether the surveillance was , a la Hamdi-- and incident of waging war.

(2) Footnotes (5) and (6) fascinate me

(3) The brief was weakest in regard to the 15 day "after declaration of war" provision. I found the logical argument here unconvincing.

In the end, I think the public's (and the legal) response is determined by a simple question: "Are we at war or not?". If the answer is yes, then there is little doubt we ought be doing this. If the answer is no, then it is unwarranted.

That this is determinative is easily seen by asking "would there be an issue about this on Octber 1st, 2001?", "If the Golden Gate bridge is dropped into San Francisco Bay with great loss of life tomorrow would there be an issue day after tomorrow?"

Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...

Thank you for your response. I am asking you to be a blogger and a professor.

Honestly, why would a debate from your commenters, myself included, be meaningful of anything? Why would it be considered a public debate? As far as I can tell, they, we are all dogs. What public debate can take place in a blog's comments? Public debates take place, face to face, in public.

Your value add is in being a *con law* prof blogger. Plenty of legal bloggers pro and con have weighed in on this. We have now all heard of these arguments laid out.

But we are not law students ourselves well studied in the case, or in the procedures, able to argue out the case in class and learn from each other. We are educated readers with our biases but ignorant of the legal issues. The public will debate, but the public debate can only be aided by having *con law* prof bloggers helping the public understand all of the issues.

Here is where the *con law* prof blogger adds value. What are the issues? What is in the constitution and how did that develop? What did the founders think? How will the courts look at this? How will they weigh the arguments? What path will it take to reach the Supreme Court and what will they do?

Is Orin Kerr, and Bob Barr, and Newt Gingrich and Arlen Specter right? Are Lederman's and Greenwald's dissections correct? Or is Yoo and Gonzalez and Hindraker and Hewitt more correct in their views?

As I've said before, if Congress doesn't want the President doing this, let it take an explicit stand on this precise matter. Lederman and Greenwald say that Congress has done exactly this, on several occasions, both when FISA was amended, as well as when FISA and PATRIOT were not amended. And they say that FISA was controlling. What am I to make of that?

I frankly would like to see a credentialed professor's opinion taking them down, the better for them to hone their arguments with. I haven't seen this yet anywhere, I've only heard the mob jump up and down saying "inherent authority as commander in chief".

And am I asking you to "vote" on it? Yes I am. But I am not asking for a blind vote yay or nay. I can get that from Glenn Reynolds. I am asking for a vote and an opinion and an education that I and your other readers can benefit from.

Would I prefer you to say the wiretapping was illegal? Of course. Am I asking you to say the wiretappping was illegal? Heavens no!

Many times the best educational experiences come from people that disagree with you. Experiments that fail are the ones that make you rethink your theories.

By refusing to take on Lederman's and Greenwald's and Gore's and Barr's and Kerr's rebuttal you fail as *con law* professor as well as blogger.

You can do better.

Anonymous said...

To summarize Sloanasaurus:

That is an easy question. Those who unquestioningly support Bush and the war will call anyone who wants to debate this matter traitors. Those who don't slavishly support Bush will want a full debate because the FISA warrant requirements are apparently reasonable and there isn't a good reason to sidestep them. As Americans we like our checks and balances and distrust an executive who operates without oversight, which is why Bush is stuck in the low 40's of popular approval (he is getting very little of the independent vote).

But then, being a traitor to American values and the Bill of Rights for partisan reasons is nothing new. Just read some back issues of the National Review during the Civil Rights movement in the 50s and 60s and you'll understand the core values that American conservatives have consistently espoused.

Luckily some leading conservatives are willing to question the Bush administration's obsession with doing whatever it wants however it wants without answering to anyone. Does anyone really believe that Grover Norquist, David Keene, Paul Weyrich, and Bob Barr fundamentally hate George Bush and hate our country, and that there really isn't anything to talk about?

Ann Althouse said...

Quxxo: Think harder. Reread my comment. Think again. Step back from you policized emotional state. Think again. Read again. Then comment again, with much more brevity and much less posturing. I'm not reading your overlong, overheated repetitions. You're a politico. Prove that you're not or I will ignore you. Taunting me by trying to "fail" me and so forth is not going to work.

clint said...

"The new document is basically an appellate brief filed in the Court of Public Opinion."

Sadly, that's exactly right.

Uncle Jimbo responded: "This defense will resonate with the public only if they can understand the distinction between statutory and Constitutional authority."

Quite the opposite -- the public is already strongly in favor of wiretapping. All they need from this brief is the impression that reasonable legal experts can disagree on whether or not it was legally justified.

The Court of Public Opinion might condemn politicians doing something the public thinks is wrong. They might even condemn a politician doing something that they think is right, if it's clearly illegal. They're never going to punish behavior that they think was right just because some legal experts think it might have been illegal.

fmodo said...

I find Volokh's post compelling reasoning to think that FISA applies and was violated, because it specifically excluded stateless international terrorist organizations from the list of potential definitions of 'foreign powers'.

Whether we are at war or not does not seem relevant to the legal issue--an authorization to use military force is both in spirit and in letter very different from an authorization to engage in signals intelligence on US citizens distinct from existing statutes.

I'm no legal expert, but the statutory violation seems clear to me, and straightforward enough for general public understanding and acceptance. Am I missing something?

Ross said...


And accusing people of treason for partisan reasons is nothing new in America. It goes back to the Sedition Act. I'm sure you're glad to know your thinking fits in an all-American vein.

KN said...

This argument surprises me. The President has the power to order missile strikes in peacetime (Sudan, Afghanistan, now Pakistan). No one seems to argue that point so I assume it is settled. The President can, apparently, launch nuclear missiles on some sort of very short timetable in the case of a perceived attack.

As eddiep notes, if a NSA wiretap reveals evidence of a crime not related to national security (income tax evasion, illegal betting, conspiracy) then the evidence is not admissible anyway is it? so I don't understand the harm. Just pure privacy? I grew up in a small town, had a party line and have a hard time understanding that.

If it's not legal it should be.

MadisonMan said...

Quite the opposite -- the public is already strongly in favor of wiretapping.

I suspect for many this support would vanish when they are wiretapped without knowledge or court order. Who, when asked about it, isn't going to think "I'm not doing anything wrong and this might catch terrorists! What's wrong with that?"

Secret government programs are bad.

Dustin said...

If FISA does apply, then it seems to contradict constitutional authority given to the President.

ChrisO said...


I don't know if you're being wilfully misleading or just fooling yourself, but 66 percent of the public does not support Bush on this. I take it you're referring to the flawed Rasmussen poll, which asked respondents if they support wiretapping terrorists. Since wiretapping is allowed under FISA,and since wiretapping terrorists as a general principal is likely to be supported by most Americans, including me, the poll does not provide any illumination into public opinion on the NSA situation.

And quite frankly, I'm getting pretty sick of you and your ilk accusing me of treason. That used to be a serious charge. You and your friends have turned it into a parlor game. I'm not sure when you decided that limiting dissent was one of the great American principles, you scumbag.

Sloanasaurus said...

"...And accusing people of treason for partisan reasons is nothing new in America. It goes back to the Sedition Act. I'm sure you're glad to know your thinking fits in an all-American vein...."

Very true! Well said!

Anonymous said...

Even Al Gore has admitted:
Don't misunderstand me: the threat of additional terror strikes is all too real and their concerted efforts to acquire weapons of mass destruction does create a real imperative to exercise the powers of the Executive Branch with swiftness and agility. Moreover, there is in fact an inherent power that is conferred by the Constitution to the President to take unilateral action to protect the nation from a sudden and immediate threat, but it is simply not possible to precisely define in legalistic terms exactly when that power is appropriate and when it is not.

And if it is indeed not possible to “precisely define in legalistic terms” the president’s “appropriate power” then the President’s opposition will seek to define it in political terms for the purpose of impeachment.

Sloanasaurus said...

"...And quite frankly, I'm getting pretty sick of you and your ilk accusing me of treason. That used to be a serious charge..."

I don't recall accusing you of treason?

My point is that there are some in this country who would be willing to go down with the ship just to be victorious over their political enemies.

People who support revolution are also traitors (as the Americans were traitors to the Crown!).

Sloanasaurus said...

"...I suspect for many this support would vanish when they are wiretapped without knowledge or court order...."

I disagree. Support would most certainly vanish if the Administration intentionally spied on Americans for Non national secutiry reasons without a warrant. That is clearly wrong.

However, support will remain high if it is clear that the government is spying on suspected terrorists and will support wire tapping without warrants for international calls made to or from the United States, which are to or from suspected terrorists.

If the government was unable to have these additional powers, our civil rights would be in greater danger because 1) we would have more attacks, which would 2) result in a greater clamp down on civil rights.

I would prefer taking one step back now so as not to risk having to take 5 steps back later.

Cold Pillow said...


Is it really your contention that you can't express an opinion on an issue of constitutional law because it would be seen as a 'vote'? Haven't you expressed opinions on countless numbers of cases on your blog? Why not this one?

You are a constitutional law professor asking the public to share their opinion on constitutional law but keeping your opinion to yourself in this case?

Call quxxo a partisan all you want, it doesn't make this argument any more sensible.

clint said...

Madison Man-

"I suspect for many this support would vanish when they are wiretapped without knowledge or court order. Who, when asked about it, isn't going to think "I'm not doing anything wrong and this might catch terrorists! What's wrong with that?""

Polls don't support this.

See, especially: "Would you personally mind having the National Security Agency monitor an international telephone call of yours?

Yes 33%
No 60%

Especially, notice that these numbers are indistinguishable from those when the question is asked impersonally, and from that when warrants or their absence are mentioned (in the context of international calls).

In other words, people are considerably more consistent in their views on this than you might think.

jeff said...

I look at it this way - having your phone number associated with a known Al-Qaida phone number is probable cause.

And probable cause doesn't require a warrant, right?

Richard Dolan said...

As a political argument, the Administration's case works and I think is likely to persuade the Public (at least that portion that is open to persuasion). The key argument is that the President ought to have the authority in times of conflict to monitor the classes of international communications that the NSA has been "data mining." As the Administration has argued here and elsewhere, and Chertoff said powerfully yesterday, the criticism about the preparedness before 9/11 was all about finding and connecting seemingly unrelated "dots" of information. Well, you can't find them if you aren't looking for them wherever they might be -- which is basically what the NSA is doing here, trying to identify the dots relating to terrorist activities that may be hidden away in a vast ocean of data. And those dots don't come with handy little red flags saying "look at me" - quite the opposite.

The Administation makes the case that warrants, with the requirement of a particularized showing of probable cause, just don't work in this context: first you need to find the dots, then try to connect them to each other, and only then can you reach a conclusion about whether they amount to anything. And, as Chertoff pointed out, the typical FISA warrant application is a hefty, lengthy document, that takes time to put together and assumes a state of knowledge that often doesn't exist. The main point of the NSA program is to get the knowledge that will let you form a particularized and focused response to a possible threat. The bottom line is that, if getting a warrant and making that showing are necessary, then the process of identifying and connecting the "dots" has just become much harder, due to our insistence on tying one hand behind our back.

I can't speak for the Public, but as far as I'm concerned, the Administration has more than made its case to me.

For those who disagree, put aside the legalisms and ask yourself what is the political argument for saying that (a) the President shouldn't be doing everything he can to find and connect those dots, and (b) if he should, why should anyone be reaching for a conclusion that he doesn't have the constitutional authority to do what most of the Public is quite likely to agree obviously needs doing? I seriously doubt whether rhetoric about "King George" or Nixon and the enemies list, or the like, will cut it with the Public, particularly as this issue plays out during the 2006 elections.

Ann says that the Administration's legal arguments are plausible and the statutory and constitutional issues are difficult. Both judgments strike me as legally right, but the fine points of the legal debate -- and it's all about fine points -- are largely beside the larger political case for the Administration's position. The Dems, the ACLU and the many lawprofs supporting their view, want the issue to reduce to hairsplitting arguments under FISA, AUMF and the 4th Amendment. It's all too reminicent of the Clintonian approach to fighting terrorism in the '90s -- let the SDNY serve 'em with a subpoena, or better yet, indict the bad guys. That'll surely show 'em.

In retrospect, that was a ridiculous response to international terrorism then -- Mary Jo White, the US Atty for the SDNY when all those terrorism cases were being tried in the 1990s, has been giving speeches for quite some time saying that --just as the legalisms attacking the NSA program are politically self defeating now. In the face of a deadly enemy -- think of 9/11, Madrid, Bali, the London bombings, etc. -- I suspect that the Public will be slow to sign on to the notion that impotence in the face of foreign dangers is a constitutional value.

IMO, what this comes down to is whether the Public accepts the claim by the Administration that the NSA program was restricted to international communications, and was designed to identify some subset of calls having some connection, however vague, that might be related to terrorist activities; or the implicit contrary claim by the Dems, the ACLU and their supporters that this is some nefarious exercise in domestic spying for illegitimate and probably partisan reasons. In this document, the Administration makes its case for the authority to do what the NSA has been directed to do. TO make its political case, it's enough that the Administration's legal case be plausible, and it surely meets that test. The President, the Vice President, the Attorney General, and Sec. Chertoff have made, and undoubtedly will continue to make, the political case that (a) the President has the constitutional authority to do this, as the FISA and other courts have recognzied; (b) Bush's claim in that regard is nothing new, as analogous claims by the Clinton Administration (among others) show; and (c) the gathering dangers from implacable enemies makes it essential that the President use his authority. The recent statement by UBL, about possible new attacks being planned in the US, just underscores the President's point.

When the Senate hearings happen, expect to see a lot of push-back from the Administration to the line that Kennedy-Leahy et al. will be pushing. I hope the Administration plays it for all it's worth, since they clearly have the winning political argument. And in the end, don't expect to see Congress do anything to try to shut the NSA program down.

Sloanasaurus said...

jeff: you need probable cause to get a warrant. Opponents of the warrantless program use your situation to support their position....i.e. why not get a warrant after the fact, it will surely be issued if you know a terrorist is calling. However, consider this scenario:

If you found Al Zawahari's note book and it contained a telephone number with the last digit illegible, you really should listen to all 10 possible numbers immediatly. However, you would not have probable cause to listen to all ten numbers, even though you are sure 1 out of the 10 is a possible associate of Zawahari's living in the U.S. We need warrantless wire tapping for situations like this where you don't have probable cause.

knox said...

"Secret government programs are bad."

I know, we really need to just come clean already and tell al qaeda the methods we're using to catch them.


37383938393839383938383 said...

I have read the document. I think the legal analysis is sound. Some moves I particularly like are:
1. Characterizing the Article II power as that to gather intelligence for military or diplomatic purposes;
2. The thorough analysis of legislative history to rebut the many hasty interpretations of FISA; and
3. Citations fo Robert Jackson's opinions as a member of the OLC and as Attorney General, to shed light on the proper interpretation of Youngstown (and by implication, Hamdi).

I also thought it was brilliant to respond to arguments made in the public sphere by legal scholars and to refer to informal legal materials like letters between legal scholars and congressmen, memoranda from Presidents to officials in the executive branch, and testimony from hearings.

To rebut the legal claims made in this brief, one would have to do as thorough a job of sourcing materials for a contrary argument; I do not think there is enough evidence to do so, because such evidence simply does not exist. I think the brief puts forth more than a plausible case; it puts forth convincingly the only coherent argument that can be made.

From a political standpoint, this is body armor arriving in the nick of time. It forcefully shifts the burden to anyone claiming the President's claims are crazy and imperialistic by illustrating that someone who opposes the President now must necessarily rely on an argument that would have prevented the United States from going to war with Germany in World War II, which is obvious inconsistent with our constitutional history and thus reality.

MadisonMan said...
This comment has been removed by a blog administrator.
MadisonMan said...

Clint, thanks for the link. Interesting reading.

sloanasaurus -- the warrants are there in FISA, as I understand it, to prevent the exact thing you say is wrong. If you can circumvent the warrants, what good are they and the protection they are to afford as written into the bill? 'Suspected terrorist' is a little too broad to be used to define who the government will secretly watch. Especially when it's just one branch of government that is deciding who is who.

john(classic) said...

I think that absent some revelation this battle is about over.

I conclude that because of the tenor of the arguments in blogs, newpapers and elsewhere. Those opposed to what is being done almost always mischaracterize or overstate what is being done. That usually is a sign of losing.

So I expect a little face saving in Congress but no real opposition.

That is not really surprising. One of the rare events that would lead to a turnover of a majority of Congress would be for Congress to override the President ("No funds shall be spent..."). Were there then to be a major act of terrorism in the US, there would be political blood in the polling places. It would be the end of the Democratic Party.

I suspect that many Democrats thought that they would end up with gain by raising doubts about whether the President is abusing his power. Normally, that would be true. I think, however, that the public is starting to regard Democrats as the boy who cried "wolf!". There have been too many overwrought claims over too many things --Roberts is the end of privacy--no-no-Alito is--no-no its Bush--the racist who killed Bl;acks during Katrina--no-no --its Ashcroft who wants to be under the covers with a flashlight when you have sex--no,no--its..." At some point people notice that nothing has happened to them, and the Democrats' credibility disappears.

That is a shame,because when the Republicans go too far, as they surely will, the Democrats will have already shot their wad. The moral of the fable is not just that the boy should not have cried wolf, but that the villagers should not have always discounted his cry.

Anonymous said...

Quxxo: You can ask someone if they would be willing to venture an opinion on a particular matter, but what gives you the right to repeatedly make obnoxious demands?

If I had to render a medical opinion I would say you suffer from a variant of BDS, namely Althouse Derangement Syndrome. Read the part about "previously compromised intellectual immune systems."

Anonymous said...

As for my opinion, I think Professor Althouse is right. Congress should address the issue.

Senate Judiciary Committee Chairman Arlen Spector has scheduled hearings next month.

Anonymous said...

Sorry, that's "Specter."

Sloanasaurus said...

"...the warrants are there in FISA, as I understand it, to prevent the exact thing you say is wrong...."

Madisonman- yes, but you also don't want the standard of a warrant to prevent spying that should be taking place.

FBI agents should have been looking at Mossoui's computer. They didn't because they didn't think they had the probable cause to do so, even though they were pretty suspicious about him being a terrorist etc...

Here is another situation. Say you had a tip that Ayman Al Zawahiri had been to a store in Karachi Pakistan recently to visit the owner. Say this tip does not jive with other intelligence and conventional wisdom that shows Zawahiri is no where near Karachi, and is in fact hiding in caves ner the Afghan border..... Suddenly, your phone tap lights up - the Karachi store owner is phoning his cousin Abdul Al Salut, a cousin and American citizen who lives in Chicago. You have to make a quick choice.... should you listen... or not. You certainly don't have enough probable cause to listen, so you will definately be slapped down by the FISA court when you apply for a warrant after the fact.... what should you do?

MadisonMan said...

You certainly don't have enough probable cause to listen, so you will definately be slapped down by the FISA court when you apply for a warrant after the fact.... what should you do?

It was my understanding that the FISA courts are really pretty forgiving -- how many warrants have been turned down? I recall it's less than 10. I'm not sure there isn't probable cause, or that a FISA judge wouldn't find it.

Confidential to knoxgirl: I live on Planet Earth. Please do not put moronic words in my mouth, i.e. "we really need to just come clean already and tell al qaeda the methods we're using to catch them" and then call me a moron. I don't need to know what's going on in the government, but I'd like more than one branch of the government to be involved.

Dustin said...

Imagine if the arguments the Democrats are making today would have been made in the days of the Civil Rights movement.

You know, when we went to Mississippi and broke any number of federal and state laws to quell the racial hatred through illegal searches and seizures, wiretaps, and outright intimidation.

Surely, surely they have a memory longer than the 2000 election.

FISA is not set up to handle the type and quantity of warrants that this program is obviously designed to need. They are not scooping up one or two people at a time, but ten, twenty, thirty all at once. Phone numbers are correlated against other phone numbers called, patterns are looked for, matched, moved on - etc. Much of this is for naught, but in a game where the stakes are so high - it's difficult to imagine limiting our possibilities because someone is upset that they are being monitored without a warrant.

Again, if this 'intelligence' were to lead to prosecutions in realms not associated with terrorism or national security, then yes, we surely should fight back. But have we seen any evidence that this has taken place? Or are we really witnessing yet more appeasment from the left? You be the judge.

Brando said...

Quxxo and cold pillow, i agree with you both. Ann's blog on this issue is a cop out. I have not been reading this blog in general because time and time again Ann fails to articulate and thoughtful position on much of anything. When you call her on this goes on "blah blah blah but if you really read what i said you would see that i am really saying something." If she does make a point, it is weak and wishy washy and basically regurgitate of the Bush agenda and talking points. (I know, I know: Ann once criticized Bush for the tie he was wearing!) Then she accuses you of being a left wing “politico.” Typical.

I am sorry this is the case; for i came back to this blog this time thinking there might be something of substance regarding all this spying business. But no. No substance. It’s disappointing. You would think that as a law professor and a citizen that Ann would be concerned about and have and informed opinion about whether or not she thinks the president broke the law or otherwise had the authority to do what he did. Ann’s response: “Yeah, they [Bush] might have a point.” Or: “It’s up for [Republican controlled] congress to 'vote' on.” Real convincing arguments.

Aspasia M. said...

Here's another situation:

Reporters like Christiane Amanpour and Christpher Hitchens are wiretapped without probable cause or a warrant. Their phones, computers and mail are monitored by the NSA.

"It's a Republic if you can keep it, John."

Sloanasaurus said...

Another way to think about warrantless wire taps is the prercent chance that a tap will bear fruit. Generally probable cause means at least nearly 50%...or that "probable" that someone is doing something you suspect them to be doing.

What should the percent be when fighting a war against Al Qaeda. I would say that the percent is closer to 5% or perhaps lower because the stakes are so hight. If there is a 5% chance (1 out of 20) that someone is doing something you suspect them to be doing, their phones should be tapped. But 5% is not probable cause and you would not be able to get a warrant for it. Maybe 5% is still too high, maybe it should be 1% or 1 out of 100).

I don't think the suspicion of Amanpour or Christopher Hitchens would reach even 1/10th of a percent.

bearbee said...

Speaking of Christopher Hitchens....
ACLU Sues to Stop Illegal Spying on Americans, Saying President Is Not Above the Law

knox said...

sorry, mm, I guess I don't know what the words "secret" or "bad" mean when you use them.

D.E. Cloutier said...

This is a debate about toilets on battleships. The United States may lose this war. After dealing with the Muslim world for 30 years, I wouldn't bet more than $100 on a U.S. victory. The U.S. Constitution may well be the Koran in a hundred years.

Radical Islamists are like the Borg. Prepare to be assimilated.

Anonymous said...

DEC you may be right about the Borg analogy. The irony is that Quxxo, Cold Pillow, Brando, Bearbee and Geoduck2 will be the ones who are most impacted by the Islamic tide.

Anonymous said...

brylin said...
DEC you may be right about the Borg analogy. The irony is that Quxxo, Cold Pillow, Brando, Bearbee and Geoduck2 will be the ones who are most impacted by the Islamic tide.

brylin, I think you're surprisingly perceptive there. When the American Taliban are established, whether that comes from Mecca or from the Christian Rightists in America, I think it is true that Americans that loved their country, its values, its constitution and weren't afraid to stand up and defend it and her people will be most at risk. Jews, gays, liberals will all be severely repressed. I do worry for my kids, as well as Cold Pillow, Brando, Bearbee and Geoduck2.

Now I expect XWL, Palladian to prosper. The Sloanbot will do well as long as the electrical grid remains stable.

Folks like you that can give up a few liberties for security, and keep neutral and argue the ruler's position will be okay. You'll get by much like today. WAL*MART today will look like WAL*MART tomorrow, with always low wages.

I am more worried about Ann, but seeing as how she can convincingly avoid taking positions or even explaining her positions, I think she'll be just fine. I think she'll be great!

Dustin said...

I wonder when people use terms like "rulers" when describing a duly elected official. Do they live in the really real world or the made up conspiracy one that lives in their head?

For me, it isn't too hard accepting that during war we are forced to make sacrafices. But could you point out the freedom we're losing? Could you point out -one- thing you yourself are no longer allowed to do because of the security measures put in place post-9/11 that hampers your ability to pursue life, liberty, and the pursuit of happiness?

Some of us that have put on the uniform to defend this country (yes, even under a Democratic "ruler") take umbrage to your psychotic remarks. I've been shot at so you can make them so please try to not respond with some 'crushing of free speech' nonsense that seems so common a refrain. That said, these same people who you don't believe we're at war with - hate everything we as a people stand for.

Maybe you'll realize it. But we are actually on the same side.

ChrisO said...


You said "Being a traitor for partisan reasons in America is nothing new," as a follow-on to your comments about people who oppose the NSA wiretaps. Go ahead and weasel out if you want to, but it's clear that you were connecting the two. Calling someone a traitor is akin to accusing him of treason. Words like "traitor" get thrown around a lot by the right, and I don't believe in taking it quietly, or feeling like I suddenly have to defend myself. I prefer to tell you to go screw yourself.

And tidalpoet, I reject the way you frame your questions. "Could you point out -one- thing you yourself are no longer allowed to do because of the security measures put in place post-9/11 that hampers your ability to pursue life, liberty, and the pursuit of happiness?" Well, if they did away with freedom of the press, and we only had state-sponsored media, I'm not sure that I would be able to point to one thing I could no longer do. I'm not suggesting you're advocating that, but I think it's simplistic to frame it that way. It's akin to the argument that the people who object to their rights being violated must have something to hide.

Aspasia M. said...


The Islamic hordes are going to sweep across the Midwest?

And those who don't agree with you will be the most "affected" by the Borg like invasion?

Really? What an odd point of view. But humorous.

D.E. Cloutier said...

You underestimate the patience and the intelligence of radical Islamists, geoduck2.

In the view of Muslim extremists, religious war is a sacred duty whenever there is a chance of success against the infidel (you).

Your only option is to convince them they have NO CHANCE of success.

Unfortunately, Democratic and Republican politicians in the U.S. think about the next election, not the next generation.

Look at the pictures of the Great Depression.

Imagine riding a mule because you have no gasoline.

People during the Great Depression would have done almost anything to end their misery.

Aspasia M. said...


Well, having a lot less gasoline would be a bummer, but that still doesn't mean Radical Islamists would be able to take over the USA.

Last I checked, we have a pretty good nuclear arsenal. How, precisely, do you imagine that Radical Islamists could defeat the American military? How, do you imagine, that a foreign force could successfully hold US territory?

I find this argument strange.

D.E. Cloutier said...

Geoduck2, you are thinking in old European military terms.

The North Vietnamese lost every battle but won the Vietnam War.

The radical Islamists paralyzed the U.S. economy for more than a year by knocking down two buildings and damaging another.

The radical Islamists won't occupy the U.S. Instead, Americans will pick the easiest path to retain the "good life."

The U.S. is much weaker economically than most Americans realize. The U.S. has exported most of its manufacturing plants. The country has no way to bootstrap its way to economic prosperity quickly after a major setback. One company--Boeing--produces roughly 10 percent of all American exports today, and Airbus is eating way at Boeing's market share.

You said: "Last I checked, we have a pretty good nuclear arsenal."

What are you going to do--nuke the whole Muslim world? The U.S. doesn't have the guts to do it. And it wouldn't work anyway. Who would you nuke in Iraq today? Or in Afganistan? Or in Thailand? Or in Indonesia? Or in the Philippines? Or in Pakistan?

The Iranians have already calculated that roughly half their population would survive an all-out nuclear attack. To some in the country, that is a reasonable trade-off for victory over the Great Satan

As I said in an earlier post, your enemy is like the Borg.

vnjagvet said...


Your point about Vietnam misses the mark. That war was fought in Vietnam. The "victory" meant that North Vietnam took over the responsibility for governing the whole country. But thirty years after "victory" Vietnam is essentially a capitalist country whose economy is not aligned either with China or with Russia.

I suspect that much of the business done now in Vietnam with foreign countries is with the US or its allies.

North Vietnam never came close to imposing its will or influence on the US even in its best days.

Using that as an example of the potential of Al Queda or its minions to take over the US and Europe is specious.

Sloanasaurus said...

"...The radical Islamists paralyzed the U.S. economy for more than a year by knocking down two buildings and damaging another...."

Don't you think this is an overstatement. Certainly we had low growth for a year (a trend which stared in 2000. But, we still managed to produce $12 trillion in goods and services despite 9/11. Perhaps paralyze is the wrong word to use

Sloanasaurus said...

Chriso, I think your missing tidalpoet's point. Security and civil rights need to be balanced in this country. You can't have "absolute" rights. if we don't have aggressive programs that try to specifically target the obvious then we will end up with totality programs that target everyone (i.e. the police state).

I am willing to trade warrantless wiretaps on international calls for having my bag searched everytime I get on the Bus.

Aspasia M. said...

Personally I'm much more concerned about the debt to China. However, I agree that chaos in oil producing countries is not a good thing for our economy.

But what's up with the rhetoric about the Constitution transforming into the Koran or the "Islamist tide" that will assimilate Americans?

Terrorists are not a threat to our territorial integrity. Likewise, over the long term, China will be a far bigger economic player in the 21st century then al qaeda.

D.E. Cloutier said...

Sloanasaurus: "Perhaps paralyze is the wrong word to use."

Pick any word you like. It wasn't until a few days ago that the Dow hit (briefly) the level it was at immediately before 9/11.

D.E. Cloutier said...

Vnjagvet, my point about Vietnam was that you can achieve victory with other than old European (von Clausewitz) military tactics.

By your name, I presumed you were a lawyer in Vietnam during the war. I was in the U.S. Army during the war. (The country is still essentially Communist, not capitalist, by the way.)

Islamic radicals are following the advice of Sun Tzu (The Art of War)--the same tactics the North Vietnamese and the Viet Cong used:

When the enemy attacks, retreat. When the enemy stops, harass. When the enemy retreats, attack.

D.E. Cloutier said...

Geoduck2: "But what's up with the rhetoric about the Constitution transforming into the Koran or the 'Islamist tide' that will assimilate Americans?"

Believe what you want. I already know how to prosper in Islamic societies. I've been doing it for years.

Geoduck2: "Personally I'm much more concerned about the debt to China."

I also know how to prosper in China. I've been doing that for years, too.

RogerA said...

I am curious as to why folks who object to the way Professor Althouse manages this blog, continue to frequent it? Can someone enlighten me?

Bruce Hayden said...

I keep rereading 50 USC 1805(f), which is the "Emergency Orders" section of FISA, and still read it requiring that the AG authorize the surveilance before it happens, instead of afterwards, as is so commonly assumed. Reiterating, I read the section to require that the AG authorize the survielance before it can be done, and then get the emergency order w/i 72 hours thereafter, instead of having 72 hours from the time of the intercept to get the order. And, again, as far as I understand, that is the issue - the interception has already occurred before the AG (or any other human) is involved. It is done pretty much automatically, and the question then is whether it can be legally listened to, or, more optimisitically, utilized in court (which is more debatable).

But for the most part, it is moot. All the people I have heard talk about FISA warrant requirements point out that it would be hard, if not impossible, to get the required information together w/i the 72 hours. Rather, it usually takes weeks to put one together. In particular, look at the requirements for an application under 50 USC 1804(a), which are pointedly still required by the "Emergency Orders" section 1805(f).

wv - WSMW - 98.7 FM out of Greensboro, North Carolina OR, more locally to Ann, the "Wisconsin & Midwestern" (WSMW) is a fictious railraod that operates on a former Milwaukee Road line between Ontonogan, MI and Milwaukee, WI.