The link is to a New Republic article by Ryan Lizza, who goes on to talk about Senator Feingold's censure effort. Read the details. Here's the conclusion:
[T]he partisans on the left cheering Feingold appear to have both the policy and the politics wrong. Censure is meaningless. Changing the FISA law is the way to address Bush's overreach. And the only way for Democrats to change FISA is for them to take back the Senate. This week, Feingold's censure petition has made that goal just a little bit more difficult to achieve. What an ass.Via Scott Lemieux, who thinks Lizza is expressing "TNR center-right contrarianism at its most vacuous." Why? Because if you think it's politically damaging to censure the President -- per Lemieux -- you ought also to be afraid to put stronger, more explicit limits in th FISA law. But I think Lizza's point is that censure is just blowing off steam, incurring political damage without changing anything. Playing it carefully now, in Lizza's view, would help the Democrats win over Congress in the '06 elections, at which point they could amend the statute and have a real effect. Lemieux, nevertheless, asks "And if the Democrats believe that he was breaking the law, why on earth shouldn't he be censured?" I don't quite think he's the best person to be deciding who's "vacuous."
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Well, I don't disagree that a censure resolution would be in some sense "blowing off steam," but he's part of the minority party; one can say the same thing about virtually anything proposed by a Democratic Senator. And I'm open to be persuaded that Feingold's resolution was bad politics , but Lizza simply doesn't provide any evidence for it.
But more importantly, I used the word "vacuous" because of his suggestion that the solution for those who believe that the President did not have the constitutional authority to engage in wiretapping contrary to a Congressional statute is...to change the FISA statute. The adminsitration is inferring unreguable, arbitrary executive authority over virtually all aspects of foreign policy from Article II. I certainly stand by my claim that these arguments are unserious, but whatever one thinks of the Yoo/Gonzales view it's self-evident that amending the content of a statute that the administration claims Congress doesn't have the authority to pass at all is beside the point. Or, if you prefer, "blowing off steam," except that to the extent that it endorses the President's actions it makes the situation worse. (You may disagree with Feingold on the merits, but as far as I can tell Lizza doesn't.) Which is why I think his argument is vacuous.
I think that you have to look at it as whether or not the NSA program is a good thing or a bad thing, on its own merits, and whether it violates our Constitution on its own (i.e. without recourse to any statutory law).
I haven't seen very many arguments of late that the NSA program violates, for example, the 4th Amdt. And those that do, typically boot-strap in FISA, which legally doesn't work.
So, you are left with the first problem: the merits of the NSA program. It provides some safety from terrorist attacks, while potentially infringing on some (non-Constitutional) right to privacy. How to make the trade-offs?
Well, a majority of the American people seem willing to give up the expectation of privacy in international calls to/from suspected terrorists in foreign countries in trade for the increased security. And all those Democratic Senators know this.
This isn't Nixon bugging the DNC. (There, the program didn't come close to standing on its own merits). Rather, most who have looked at the program seriously think that it does provide benefits.
And that is the problem with censure. Any Senator who voted for it would either be saying that national security is of a minor concern, or be a hypocrite - trying to weaken a president during a time of war for totally political advantage.
I think it would very bad if the Congress retroactively changes the law to justify the President's behavior. Such retroactive re-writings are Orwellian.
As for Feingold's censure idea, I don't disagree with it on principle, but I do think that it is bad politics. Being in the majority counts for a lot. The Republicans had a majority of Congress in 1998, and they were able to use far lesser offenses to justify a $60 million dollar investigation that hamstrung the Clinton administration for more than a year. If the Democrats were in the majority now,they could do the same thing, but they're not, so if they want to censure the president I think they should spend their time figuring out a way to get the congress back.
Terry... re-writing the law to adapt it to the president's behavior is not Orwellian. Under that reasoning the 21st Amendment was Orwellian since it adapted to those who were drinking gin ("imported" and bathtub).
Perhaps some Dems (though I think Feingold is living a pipe dream) think the President's act was otherwise legitimate and the law should be changed to endorse it more explicitly and in limited circumstances or made to explicitly outlaw it.
Thought it was just me, but Random House Unabridged, Webster's, and a net search don't have any idea what "unreguable" means either. "Unreviewable?" "Unregulated" "Unregulatable?" If this is a term of art, I'd appreciate a definition from whoever's art it is.
"....But this Administration seems to have contempt for collegiality and lawfulness, plus a problem with full disclosure..."
Your partly correct, The full disclosure of Iraqi documents now clearly show that Iraqs connection with terrorism was substantially greater than any claim made by any official prior to the war.
Oh..wait... I guess this wasn't the full disclosure that you were talking about.
By the way
Johnny Nobody
"I think that you have to look at it as whether or not the NSA program is a good thing or a bad thing, on its own merits, and whether it violates our Constitution on its own (i.e. without recourse to any statutory law).
Why do you think that? FISA explicitly prohibits electronic surveillance for foreign intelligence purposes if it is undertaken outside the judicial process created by FISA. That is, the President, in authorizing this program, broke the law. Can the President break any extraconstitutional law?"
Not quite sure what you are saying here, but your analysis is a bit simplistic and conclusory. You haven't addressed such mundane subjects as whether FISA, as you interpret it would violate the President's Article II powers, whether the AUMF effectively amended FISA, whether courts would be constrained to interpret these statutes so that FISA isn't violated in order to preserve the President's Article II powers, etc.
I haven't seen very many arguments of late that the NSA program violates, for example, the 4th Amdt. And those that do, typically boot-strap in FISA, which legally doesn't work.
An electronic wiretap constitutes a search. US persons cannot be searched without a specific warrant or probable cause to believe the person is breaking the law. The fact that this program was put into place secretly and outside the purview of the FISA courts suggests that this standard was not met. Since Congress will not be investigating seriously anytime soon, we're left to sit on our thumbs and trust the President.
I think that you give away some of the prolems with your analysis. For starters, you are using the term "US Persons" with the 4th Amdt. Not surprisingly, it doesn't appear there, but, not coincidentally, does appear in FISA. In short, you are mixing up the two. Part of the reason that that won't work is that they have to be viewed under very different standards. For example, the President can assert his Article II power against FISA, but not the 4th Amdt. Warrant requirements are also different.
You assert that "An electronic wiretap constitutes a search" under the 4th Amdt., but ignore that that isn't in the text of the Amdt., nor do you address that different types of conversations have different levels of expectations of privacy, (and that domestic calls have a higher expectation of such than internatational calls) nor that the NSA intercepts are arguably akin to the type of exigent circumstances found in hot persuit exceptions to the 4th Amdt. warrant requirements.
So, you are left with the first problem: the merits of the NSA program. It provides some safety from terrorist attacks, while potentially infringing on some (non-Constitutional) right to privacy. How to make the trade-offs?
You don't know that the program provides safety. You have been told this, and you choose to believe it. We do know that the program could quite easily have infringed Constitutional rights to be secure in their persons, houses, papers, and effects.
Of course, you don't know the contrary either. Nevertheless, the program hasn't been conducted in a vacuum, as you seem to be suggesting. Rather, at a minimum, the top Republican and top Democrat of both intelligence committees have been kept informed all along about the program.
I should also note that your partial quote of the 4th Amdt. points out how you have to stretch it to make it applicable here. Historically, it was limited to the state (usually in the form of the police) physically coming into your house. It was only later expanded to cover domestic telephone conversations.
Back to my original point. If you want to argue 4th Amdt., then fine, we will talk about reasonsable expectations of privacy and exigent circumstances. And if you want to talk about FISA, then we can talk about separation of powers, AUMF, Hamdi, Jackson's Youngstown concurrence, etc. But you can't mix the two.
dsh askes:
"Bruce Hayden's analysis is perspicuous. This affair is not Nixon wiretapping the DNC, but it's still illegal. If this incident were the only problem with the Administration, I'd probably look the other way. But this Administration seems to have contempt for collegiality and lawfulness, plus a problem with full disclosure and the truth. And I unaware that obeying the law would cause a burden. Maybe an inconvenience, but FISA seems flexible enough to handle most contingencies. "
I think that the reason that the NSA program details weren't made public, until leaked, is obvious. It is for the same reasons that operational plans of coming operations are not disclosed to the press prior to implementation. Not only do the American people watch CNN, but so do our enemies. Not surpisingly, when it came out that we were tapping satellite phone calls from al Qaeda, they dried up almost immediately. And, there is some indication that this has happened here too.
That FISA wouldn't be a burden here is an oft repeated carard, but lacks evidence. The AG has repeatedly stated that it does, and he is the one in the position to know. It is he who has to authorize those 72 hour Emergency Orders that so many assume would provide the needed flexibility. But he has repeatedly stated that the procedural and proofs required are onerous enough that he invariably cannot authorize them. Again, he is the one in the know, and all those supposing to the contrary are just guessing.
In what is no doubt a doomed effort at rebuttal, my own nickel in italics.
--"I think that you have to look at it as whether or not the NSA program is a good thing or a bad thing, on its own merits, and whether it violates our Constitution on its own (i.e. without recourse to any statutory law).
Why do you think that? FISA explicitly prohibits electronic surveillance for foreign intelligence purposes if it is undertaken outside the judicial process created by FISA. That is, the President, in authorizing this program, broke the law. Can the President break any extraconstitutional law?"
Not quite sure what you are saying here, but your analysis is a bit simplistic and conclusory. You haven't addressed such mundane subjects as whether FISA, as you interpret it would violate the President's Article II powers, whether the AUMF effectively amended FISA, whether courts would be constrained to interpret these statutes so that FISA isn't violated in order to preserve the President's Article II powers, etc.
Your argument turns the question on its head: the issue is not whether statutes should always be interpreted to as to minimize Presidential power, but rather whether the exercise of that power and Congressional legislation may coexist. Under your argument, any President could simply ignore any statute passed by Congress regarding (for example) the armed services on the ground that it would “violate the President’s Article II powers.” Stating that proposition demonstrates its wrongheadedness.
As to whether the AUMF amended FISA, the answer is “no.” There is no evidence to support that assertion, and there is no conflict between the two statutes. So any sub-silentio overruling claim is without any evidentiary basis.
I haven't seen very many arguments of late that the NSA program violates, for example, the 4th Amdt. And those that do, typically boot-strap in FISA, which legally doesn't work.
Perhaps you missed this one:
http://www.nybooks.com/articles/18650
A rather clear exposition of exactly why this program violates the Constitution. As this document is signed by both Ronald Dworkin and Richard Epstein, it would be difficult to claim it is a partisan gambit.
An electronic wiretap constitutes a search. US persons cannot be searched without a specific warrant or probable cause to believe the person is breaking the law. The fact that this program was put into place secretly and outside the purview of the FISA courts suggests that this standard was not met. Since Congress will not be investigating seriously anytime soon, we're left to sit on our thumbs and trust the President.
I think that you give away some of the prolems with your analysis. For starters, you are using the term "US Persons" with the 4th Amdt. Not surprisingly, it doesn't appear there, but, not coincidentally, does appear in FISA. In short, you are mixing up the two. Part of the reason that that won't work is that they have to be viewed under very different standards. For example, the President can assert his Article II power against FISA, but not the 4th Amdt. Warrant requirements are also different.
They do not have to be viewed under different standards; rather, there are two different questions. A wiretap that is illegal under the Fourth Amendment is illegal under FISA. The FISA question is not whether the wiretap is valid but rather whether, in the face of Congress’s determination to make FISA exclusive, the administration may validly claim that its understanding of Article II somehow permits it to evade the strictures of that statute. The attempt in Congress to rewrite the statute suggests that the lawmakers know the Article II argument cannot withstand scrutiny on this point.
You assert that "An electronic wiretap constitutes a search" under the 4th Amdt., but ignore that that isn't in the text of the Amdt., nor do you address that different types of conversations have different levels of expectations of privacy, (and that domestic calls have a higher expectation of such than internatational calls) nor that the NSA intercepts are arguably akin to the type of exigent circumstances found in hot persuit exceptions to the 4th Amdt. warrant requirements.
The argument that a wiretap is not covered by the Fourth Amendment because it’s not in the text is a rather disingenuous argument to make. But if you want to play that way, so be it:
The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth, and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.
The question remaining for decision, then, is whether the search and seizure conducted in this case complied with constitutional standards.
Katz v. United States, 389 U.S. 347, 353-4 (1967).
Strictly speaking domestic calls are protected by the Fourth Amendment, while the applicability of the Fourth Amendment to international calls is as of this writing, unclear. See United States v. United States District Court, 407 U.S. 297 (1972).
Please provide authority for the proposition that “different types of conversations have different levels of expectations of privacy” and how that proposition can support the argument that certain domestic wiretaps are not protected by the Fourth Amendment.
The NSA/hot pursuit argument is inapt for two reasons. First, there IS an exception in FISA for warrentless monitoring. So the argument is irrelevant. But, even if there was no exception, that doctrine would not apply. Your argument conflates a fishing expedition (the possibility that something useful might turn up as a consequence of wiretapping [note that apparently it hasn’t]) with an actual pursuit. See, e.g., United States v. Santana, 427 U.S. 38, 42 (1976).
So, you are left with the first problem: the merits of the NSA program. It provides some safety from terrorist attacks, while potentially infringing on some (non-Constitutional) right to privacy. How to make the trade-offs?
It’s not possible to answer a question correctly (or at all) when the question relies on inaccurate premises.
You don't know that the program provides safety. You have been told this, and you choose to believe it. We do know that the program could quite easily have infringed Constitutional rights to be secure in their persons, houses, papers, and effects.
Of course, you don't know the contrary either. Nevertheless, the program hasn't been conducted in a vacuum, as you seem to be suggesting. Rather, at a minimum, the top Republican and top Democrat of both intelligence committees have been kept informed all along about the program.
Not exactly. See Rockefeller’s letter. Being informed of a program’s existence is hardly evidence of its efficacy. Given the administration’s failure to point out A SINGLE useful result of that program and its apparent inutility, it is more plausible at this point to assume there’s been no benefit. I don’t doubt that should something positive come to pass as a result we will all be promptly informed, ala Jose Padilla’s arrest.
I should also note that your partial quote of the 4th Amdt. points out how you have to stretch it to make it applicable here. Historically, it was limited to the state (usually in the form of the police) physically coming into your house. It was only later expanded to cover domestic telephone conversations.
There’s no relevance to your point unless you are suggesting that the Fourth Amendment only applies to the physical building known as one’s residence. Or perhaps you are arguing that non-state actors {who might they be?} are at liberty to enter?
Correction: I misspoke when I referred to the NYRB letter. I should have said that the letter "raises questions" about the constitutionality of the NSA program, as that document itself does not expressly come to that conclusion. I think the conclusion is not difficult to draw but the mistake is mine. Sorry.
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