January 30, 2006

Sane talk on the NSA controversy.

Texas Lawprof Philip Bobbitt has a NYT op-ed on the NSA spying controversy:
IN the debate over whether the National Security Agency's eavesdropping violated the Foreign Intelligence Surveillance Act, we must not lose sight of the fact that the world we entered on 9/11 will require rewriting that statute and other laws. The tiresome pas de deux between rigid civil libertarians in denial of reality and an overaggressive executive branch seemingly heedless of the law, while comforting to partisans of both groups, is not in the national interest....

This is not to play down the damage done to our war aims by the executive branch's repeated appearance of an indifference to law. A president does have an obligation to assess the constitutionality of statutes, but when he secretly decides a measure is unconstitutional and neglects to say so (much less why), he undermines the very system of public consent for which we are fighting. Having said that, we also must not be so absorbed by questions of statutory construction that we ignore the revolutionary political and technological events that are transforming the world in which our laws must function.
Well said.


Bruce Hayden said...

Good article. In particular, I liked that he pointed out some of the FISA problems inherant in our current technology and why we are presumably evesdropping on calls in the U.S.

My one small criticism is that he is just a little misleading about the definition of "U.S. Person" in FISA under 50 USC 1801(i), which is relevant under 1801(f) in defining “Electronic surveillance”. He points out correctly that it includes U.S. citizens, but also includes U.S. corporations abroad. While this later is true, it is probably more important to note that it also includes legal aliens. But this is a minor quibble, given my overriding agreement with the article.

In any case, his main point I think is that technology has changed dramatically, and FISA hasn't.

Bruce Hayden said...

Let me rephrase myself. It is not that the way the author defined U.S. Person is misleading, but rather that I would have put different emphasis on who or what was so defined.

And that has got me thinking that he might be on to something. If the NSA is monitoring foreign calls, and someone calls a U.S. Corporation overseas, how are they going to know that it is a U.S. Corp., and thus U.S. Person?

This restriction made a lot more sense when those tapping phones had to go out to the physical facility. Then, if they saw that it said GM, Ford, or IBM, they wouldn't tap. But now? When all they have is a phone number? Halfway around the world?

Let me point out something else the author noted. A lot of international traffic is routed through the U.S. and monitored in the U.S. This monitoring in the U.S. moves things from 1801(f)(1) to (f)(2), which is a lot tougher to conform to.

As I have noted repeatedly here and elsewhere, part of why FISA is so scary here is that 1801(f)(2) requires a warrant if either person in the conversation is located in the U.S., regardless of whether that person should be here or not. If he swam the Rio Grande, that is fine. FISA would seem to protect him.

Restating this. If the evesdropping is done outside the U.S., only U.S. persons (essentially those here legally) in the U.S. are protected by FISA and that is only if they are the target of the surveilance. Not if they target (like OBL) calls them. But if done in the U.S., it is done in the U.S., then if either party to the conversation is in the U.S. regardless of their legality here, and regardless of who the target was, FISA would ostensibly apply.

Bruce Hayden said...

Sorry about the last post. I note some problems with it that probably would have been eliminated if I had previewed before posting.

amn said...

"... we also must not be so absorbed by questions of statutory construction that we ignore the revolutionary political and technological events that are transforming the world in which our laws must function."

I am troubled by this waving away of "repeated apperance of an indifference to law." This post-Septemeber-11th-thinking rationale is thrown around a lot, but it does not make a very good legal argument. FISA is probably inadequate and overly demanding in the war on terrorism, but that is not justificaction for secretly choosing to disregard it. If the law does not work, change it.

Jacques Cuze said...

The tiresome pas de deux between rigid civil libertarians in denial of reality and an overaggressive executive branch seemingly heedless of the law

Fallacy of the excluded middle. As a law professor, I expect a more rigorous argument from you than this muddle. D-. Redo. Please see me.

Jacques Cuze said...

Ann, I think you should do your credibility a favor and recuse yourself from this debate. You cite only sources and arguments that you agree with, purposefully never addressing the arguments and evidence from many that think differently, regardless of who writes those arguments or who points them out to you.

There is one word for your behavior, and you know it well. It's unbecoming of a moderate non-partisan such as yourself. Frankly, it's weird!

verification word: denial.

Sloanasaurus said...

The point about FISA vs. what Bush is doing that is rarely discussed is the issue about probable cause in the first place.

Bush is not using FISA for these international calls because he doesn't have probable cause. You need probable cause to get a warrant, whether the warrant is issued before or 72 hours later after the search.

What is probable cause. Is it a 50% likeliness threshhold? Maybe its 30%. Most would agree that probable cause is NOT 10% and definatley NOT 1%.

Bush, however, wants to search the 10% and the 1%. If you compute the odds and search 100 suspects and find one terrorist, which prevents an attack, that is good odds considering the damage that has been preventing when weighed against the privacy rights violation with the other 99 people who were innocent.

Probable cause would not allow you to search the 1%. This is why FISA is a worthless statute during a real war. Failure to search during war leads to nasty consequences, which is why probable cause is a bad threshhold...which is why an President should disregard it.

DaveG said...

but when he secretly decides a measure is unconstitutional and neglects to say so

Secretly? Weren't Congressional leaders repeatedly briefed?

amn said...

Sloan: You're right that if listening to 100 phone calls would lead to catching a terrorist it would be a good idea. But where does that logic end? If the laws are irrelevant during a "real war", what wouldn't we do to catch a terrorist?

Bruce Hayden said...

Sloanasaurus makes a good case about probable cause. But it is worse.

First, apparently, one of the things that is done is to phone numbers to the NSA when cell phones are seized when rolling up terrorist networks in Afganistan and, in particular, Iraq. They often have a very short time frame here, on the order of hours at best before the phones are dumped.

FISA has a 72 hour emergency provision, where surveilance can be done (assuming probable cause) AFTER approval by the AG. But this requires pretty much the same standards as normal FISA warrants. Note, of course, that Iraq and Afganistan are on the other side of the world, and, thus, much of this is probably happening when the AG is asleep.

Another problem with FISA here. Any warrants for OBL and his seconds are long expired. They would have been limited to a maximum of one year in extensions. So, even if there were probable cause (as there is there), tough. FISA warrants for them are out of the question.

Abraham said...

quxxo - re: fallacy

You do realize Ann is quoting somebody else, right? Furthermore, you might want to bone up on your reading comprehension skills, as the author is clearly pointing out that such a dichotomous view is fallacious.

Bruce Hayden said...

Also note one thing that the author pointed out, that is often gotten wrong on the left when discussing FISA. The 72 hour emergency period starts when the AG approves an emergency warrant. I noted earlier that the application for such has to pass essentially the same hurdles as normal FISA warrants.

But this means that any conversations that are automatically recorded between, say, OBL and someone here in the U.S., would not be saved by the emergency warrant provisions - because, by necessity, the recording was done before the AG could approve such.

Bruce Hayden said...


I don't know where the line should be drawn as far as giving rights to potential terrorists. But I do believe that FISA is a long way from where it should be drawn.

stealthlawprof said...

The problem here of course is that the issue ultimately is not what rights are given to terrorists. The issue is what right the President has to ignore an ill-conceived law rather than persuade Congress to amend or repeal it.

Unless the very general language of the authorization to pursue the war on terror can be viewed as overriding the very detailed (foolishly overly detailed) FISA provisions, we have a clear case of the President acting contrary to the expressed will of Congress. Applying Justice Jackson's Steel Seizure analysis, such a move by the President must fail unless the President has authority to act and Congress clearly has none. Such cases exist, see Padelford and Klein (which address a Congressional attempt to interfere with the pardon power) and Meyers (Congressional interference with the power to remove executive officials). This case appears not to fit those precedents.

The President's broad powers with relation to foreign affairs and as commander in chief do not give him power independent of Congress to deal with domestic affairs. This case is a virtual carbon copy of Steel Seizure.

What is doubly troubling about this scenario is that the administration views opposition to its position as disloyal. Many voters have turned to the Republican Party because the Democratic Party has rejected democracy -- preferring instead to impose its wisdom on the masses by whatever means are available (presently the courts). (In another era and another hemisphere, the current Democratic Party position was referred to as Democratic Centralism.)

If the Republican Party takes the position that the President can ignore the law, it has lowered itself to the Democrats' position. An all-powerful executive is just as much a rejection of our Constitution as an all-powerful judiciary. Will the American electorate no longer have any major party that honors our Constitutional democracy?

wildaboutharrie said...

"The tiresome pas de deux between rigid civil libertarians in denial of reality and an overaggressive executive branch seemingly heedless of the law, while comforting to partisans of both groups, is not in the national interest...."

Shouldn't it be "civil libertarians SEEMINGLY in denial of reality" if this piece is to be nonpartisan, as it appears to be straining to be? Why are the CLs in denial, but the Executive is only SEEMINGLY heedless?

Anyway, most of the debate I've heard elsewhere is from folks in the middle - wanting to go after terrorists, but within the law (and supporting changes to the law if necessary).

Hearings soon, thank God, I'm tired of all the speculation.

Jacques Cuze said...

He is not really offering an alternative. By citing the importance of the ends he is justifying the means, the President going around the law. Here is the key sentence that summarizes his entire paperparagraph:

we also must not be so absorbed by questions of statutory construction that we ignore the revolutionary political and technological events that are transforming the world in which our laws must function.

The outlaws of the administration had many alternatives to meeting the needs of the NSA. In four years, they chose not to a) amend FISA when they had the chance, b) ask Congress for a more suitable law, c) fully inform the FISA courts and the Congress of their actions.

Bobbitt's claim that civil libertarians are unduly rigid, and focused on statutory construction is insulting. In fact, surveys show that most Americans oppose this program. I wouldn't think it is fair or accurate to claim that most americans are unduly rigid civil libertarians. And apart from examining this program in the light of the pre-existing laws, what other way would Bobbitt have for concerned citizens and gov't officials and yes, even law prof blogerians to examine and criticize the program?

abraham, you may wish to bone yourself up on your reading.

Bobbitt's argument certainly uses the fallacy of the excluded middle. He says most people think it's either A or B, but it's not, it'c C, my way! In fact, it's not A, or b, or even C, it's just little ole me, invasion of privacy.

verification word: underd0g

Stiles said...

In addition to readig this post, I also came across Jon Adler's Corner post, which referenced this Newsweek Story. Most of the names in this story are unfamiliar to me, but Patrick Philbin is somebody I knew in the past. Certainly, I knew his politics as an undergraduate and he was very conservative with a substantial respect for executive power. If he opposed the NSA program going forward without warrants, that is very sobering indeed.

Analysis from the outside is all well and good, but when you see a story that someone you know, whose integrity is sound, who you know to be strong on national security and pro-executive power, who is close to the issue, had reservations, well, that speaks more strongly. I've tried to give the Administration the benefit of the doubt, but if Philbin couldn't support the program...

paulfrommpls said...

Has anyone ever heard a hint of any reason the 8 Congress members were told the administration didn't want to seek a change in the law? The subject must have come up. Did it possibly convey some surveillance advantage to engage in a technique - quick warrantless eavesdropping - that al Q might have thought was not allowed?

I'm not sure what the context would be: the use of frequently-overturned, frequently-discarded cell numbers maybe.

paulfrommpls said...

stiles -

That kind of post is why the Corner is such an indispensable site. Amy well-defended opinion from anywhere is treated respectfully. There is disagreement among the posters. The writers frequently post thoughtful e-mails opposing something they've said. It's sort of the anti-Kos.

Sloanasaurus said...

Quxxo, the problem with your argument that Bush "broke the law" is who decides whether Bush has broken the law? The answer is not the law is what it is. There is no underlying truth to this law. Someone has to decide that it has been broken.

Congress could say so by passing a resolution, and then impeachment. Or the Supreme Court could rule.

The problem with the first route, is that the public overwhelmingly supports what the Administration is doing. Thus, Congress will not touch it.

The problem with the Court is that precedence falls Bush's way. It is very unlikely that the Court would rule that the President is violating the law (especially with Alito).

Thus you are left with only your opinion that Bush "broke the law" Its a similar opinion to those who claim Roosevelt broke the law prior to World War II in his aid to the allies (contrary to the wishes of Congress), or to Truman going to war in Korea without a Congressional Resolution.

Bruce Hayden said...

I have pursued this Balance of Power issue ad naseum in a long thread over at Polipunit.com (In particular, see my comments ## 256, 259, 264, and in particular, 280, 282, and 284).

The short version though is that the Judiciary depends on "soft" power, whereas the Legislative, and, in particular, the Executive, have access to both "soft" and "hard" power. In the end, this means that the Judicary cannot afford to be seen losing a contest of wills with the Executive, because this would result in a significant loss of their "soft" power. Nixon had to back down because of the real threat of impeachment. Bush won't have to. So, in the end, I don't see this evolving into a Separation of Powers decision by the Supreme Court. Rather, I believe that they will find some way (IMHO, most likely finding that the AUMF effectively expanded FISA) to side step the issue, if they are forced to intervene. They can't take the chance of calling the President's bluff here, as he may not be bluffing, and has the support of enough of the American people that he is safe from impeachment.

stealthlawprof said...

Bruce --

Heaven help us if we are to the point that the President can ignore the Supreme Court as brazenly as you suggest he might. The President is not above the law and cannot be if our Constitution retains any meaning.