This is a real case study in how total falsehoods are disseminated by a single right-wing blogger who is then linked to and approvingly cited by large, highly partisan bloggers, which then cause the outright falsehoods to be bestowed with credibility and take on the status of a conventionally accepted talking point in defense of the Administration.
A blogger named Al Maviva wrote a staggeringly dishonest post which he said was based upon what he called a "little legal research" concerning FISA. He then proceeded to deliberately mis-quote the statute in order to reach the patently false conclusion that "the President probably does have the power to order NSA to monitor suspects, without a warrant, in terrorism cases."
This post was then cited and linked to, in some cases with approval, by several large conservative bloggers, and thereafter wormed its way up to the conservative motherload of Internet traffic, Instapundit, who approvingly linked to it. I have no doubt that -- thanks to law professor Instapundit and these others Administration defenders -- tens of thousands of people (at least) have now read this "legal analysis" defending the legality of the Administration’s conduct which is based on a glaringly unethical distortion of the language of FISA.
We’re not talking here about an unconvincing or erroneous legal argument. This is something different entirely – it is an argument based upon a fundamental misquoting of the law in question designed to make illegal behavior look legal.
FISA is a relatively straightforward statute and the issue here is a simple one. The statute begins with § 1801, which in Section(a) defines various types of "foreign powers" on whom the Government can eavesdrop.
Under Section(a), subsections (1)-(3) essentially refer to foreign governments or groups expressly controlled by a foreign government.
Subsections (1)-(3) do not include non-governmental terrorist organizations, such as Al Qaeda. Such groups – i.e., terrorists organizations – are referenced in subsection (4) only.
The next section of FISA -- § 1802 -- allows warrantless eavesdropping for up to one year (provided other procedures are complied with). But it does so only for "electronic surveillance [that] is solely directed at communications" among foreign powers referred to by subsections (1)-(3) -- but not subsection (4). Thus, this authorization to conduct warrantless searches is expressly limited to communications among subsection (1)-(3) foreign governments but does not even arguably extend to subsection (4) terrorist groups.
But that does not stop Al Maviva from arguing that the Administration was allowed to engage in warrantless eavesdropping on terrorist groups pursuant to this section. To argue this, he purports to quote the authorization language of § 1802, but omits from his quotation the part of the statute which entirely negates his argument -- namely, the part which limits this authorization to subsections (1)-(3), but excludes subsection (4).
Compare Al Maviva’s quotation of the statute with what the statute actually says. Here is Al Maviva, setting forth his "legal analysis" and pretending to quote from the statute:
So you read that "legal analysis" and you are supposed to think: "Oh, wow - under FISA, the Administration is allowed to engage in warrantless surveillance for up to one year of anyone referenced in section 1801, which includes terrorist organizations. So Bush really did nothing wrong after all. I can’t believe how the Bush-hating MSM is making it seem like he broke the law when he clearly obeyed the law." And that is exactly what Bush worshiping bloggers said when passing on this "legal analysis," along with others who misleadingly and partially quote section 1802 to make it seem as though it renders the Administration's conduct legal.In addition to existing restrictions under Executive Order 12333 and other internal limits, FISA states in 50 U.S.C. 1802 that, "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 . . ." (emphasis added).
But here is what that section of the statute actually says, when quoted correctly and fully:
(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;
When pretending to quote the statute, Al Maviva simply omitted the language making clear that the warrantless authorization applies only to foreign powers referenced in subsections (A)(1)-(3), and not to terrorist organizations, referenced in (A)(4).
Thus, contrary to the only point made in Al Maviva’s "legal analysis" to defend the Bush Administration, there is no basis whatsoever for asserting that FISA authorizes the Administration to eavesdrop on individuals suspected of working with terrorist organizations. Such eavesdropping unquestionably requires a warrant or compliance with the 72-hour emergency procedures of section 1805.
The only way to argue that the Bush Administration’s warrantless eavesdropping on suspected terrorists, including U.S. citizens, complied with the law is by misquoting the law in order to change its requirements.
That’s exactly what Al Maviva did, and his patently dishonest argument was then given wide circulation by Instapundit and others, and the "substance" of the argument is now undoubtedly being used by those who don’t know any better, and by those who do, to absurdly claim that there is a reasonable argument to make that the Administration complied with the law. There is no such argument to make -- at least not when the law is quoted accurately.
If the Defend-Bush-No-Matter-What crowd needs to defend Bush here, that's fine, but at least they ought to be intellectually honest about what they are defending. The Administration most plainly did not comply with FISA. It deliberately chose to violate FISA based on the Administration's view, grounded in John Yoo's Memorandum, that it has the right to exert unchecked Executive power in times of even undeclared war, meaning that it has the right to violate Congressional statutes.
It is not in reasonable dispute that the Administration violated FISA. It plainly did. The statute explicitly requires judicial warrants for eavesdropping on alleged terrorist suspects except where there is an emergency need to eavesdrop before one can be obtained, in which case the Government is authorized to eavesdrop for up to 72 hours without a warrant.
Here, the Administration decided that, notwithstanding those statutory requirements, it would eavesdrop on terrorist suspects (at least) without obtaining warrants, and the President thus issued an order "authorizing" such warrantless surveillance. Put simply, then, the Administration engaged in surveillance in clear and deliberate violation of FISA.
Thus, those who want to defend the Administration therefore have to argue -- as the Administration itself has done -- that the Administration has the right to violate Congressional statutes. There is no good faith basis for arguing that the Administration complied with FISA, which is why those who are trying to do so have to distort the law when pretending to quote from it.
UPDATE: Glenn Reynolds, to his credit, appended an update to his original post which linked to the Al Maviva "legal analysis." In his update, Reynolds included a link to my post here and noted my argument that Al Maviva "misquotes the statute." (John Cole at Balloon-Juice has done the same).
But Reynolds also then asserts, with no analysis whatsoever (other than a meaninglessly unspecific notation that "people fail to appreciate how limited their protection against government surveillance" is) that it is "not so clear" that the Administration's warrantless surveillance violated FISA. But FISA, at least in this regard, is not complicated and, as demonstrated here, it is crystal clear that the Administration's warrantless eavesdropping violated its mandates. That is the only reason an Executive Order was needed from Bush to the NSA. To believe that it's "not so clear" that the Administration violated FISA is simply to allow one's pro-Administration desires to overwhelm one's judgment.
UPDATE II: The notion advanced by Bush defenders that the Administration's warrantless surveillance on American citizens complied with FISA is so plainly wrong that not even the Administration is claiming this to be the case. Instead, the Administration is acknowledging that this surveillance was not authorized by FISA but is insisting that it has the power to eavesdrop on American citizens without a warrant even though this Congressional statute bars it from doing so.
You mean they are lying in order to make illegal behavior seem legal?
ReplyDeleteGod, I can't believe that. It's so unlike them. Just ask Lewis Libby.
It's been going on for years. Too bad Dubya's gotten so out-of-control he thinks he can make his own rules up. Remember guys; Absolute Power currupts absolutely and Dubya is consumed by it. His impeachment should be a big hoot if it happens. We'll see who sings like a Canary and who screams like a banshee when all is said and done.
ReplyDeleteThis claim that 1802 authorized the Administration to conduct warrantless wiretaps is everywhere throughout Right Blogistan, even those who don't know they are mouthing this original liar. They can't defend illegal conduct so they lie and say it was legal.
ReplyDeleteThis is going to be like the torture argument for the Defend-Bush-no-matter what crowd, as you call them!
ReplyDeleteFirst they said we didn't torture so there is no basis for criticize teh Administration.
Then, when all of the evidence came out showing they did, they had to switch their defense and say Torture is Good.
That will happen here. As soon as these drones realize that Bush violated the law, they will switch to "he SHOULD violate the law.'
What whores.
So Bush supporters deliberately advance an untruthful argument for political gain?
ReplyDeleteShocker...
Thanks for your great work on this.
ReplyDeleteThe simple fact that Reynolds had to post a grudging admission that Al Maviva misquoted the statute speaks volumes. Your argument pretty much demolishes this talking point.
ReplyDeleteNice work.
I believe ou're misinterpreting the statutory text
ReplyDeleteYes! We can't have that! Interpret it our way or we will go back to misquoting it!
Bush couldn't care less about stopping terrorism. If he did, he would have secured our borders and nuclear plant areas. If he cared about it, a drunk wouldn't be able to wander onto an airfield and take a plane out for a joy ride (as has happened). Our aircraft truly would be secure if he cared about terrorism, and he would have concentrated on capturing bin Laden, instead of aiding and abetting terrorists by creating unimpeded access to terror training camps via his war against Iraq, where our soldiers are used as targets for TITs (Terrorists in Training).
ReplyDeleteThe only "real" enemies to Bush are the Americans who have the audacity to disagree with him on any issue. They've already targeted and spied on private American citizens who have simply expressed their disagreement with his war.
Although this is a giant legal issue, to me it seems more like a very large mental health issue, involving Bush and his followers who demand that everyone else fall into step with their very narrow views, kneel down and kiss the feet of King George.
Think about it. Every single thing involving Bush has been a piece of fiction, bought and paid for by US taxpayers, starting with the lies regarding his war against Iraq; the buying of the "free press" to espouse Bush's views, both here with Armstrong Williams, et al. and in Iraqi newspapers; the possible purchase of his 2004 Presidential "win," under investigation now, etc., etc., etc. The last 5 years have been nothing but a badly-written, carefully crafted piece of FICTION, and we'd all be a lot better off if this Texan was Bobby Ewing instead of George W. Bush.
We've seen firsthand how he personally destroys ANYONE who dares to challenge him on any issue. Ask Valerie Plame how her job is going. Ask John McCain and John Kerry how their heroic war records were denigrated by this coward who was too busy pursuing his own personal "mushroom cloud" to have either the time or the courage to put one boot on the ground in Vietnam.
If Bush and Dobson, et al. had the ability to surgically implant a chip into each American citizen that would result effectively in a "character/belief transplant" and effectively force each American to believe identically to Bush followers -- worshipping Bush as a King, controlling when and how we're born, who we love, which God we worship, and when and how we die -- do any of you think for one moment that Bush and Bushies wouldn't DO THAT?
Sounds science-fictionish, no? Well, nobody knows what this administration is REALLY doing because it is so secretive. With the advent of a possible avian flu "pandemic" and Bush's prior statement involving quaranting and the use of the military throughout American neighborhoods, I can promise you that NOBODY on the government's behalf is going to inject THIS OLD BROAD with anything. That's just how much I DO NOT trust this man and evidence that maybe mental illness can be contagious because I'm now suffering from a "paranoia" I've never felt during my entire 53 years on earth.
Bush has made it clear that unquestioning, undying, unfaltering, total and absolute DEVOTION to him is the minimum allowable standard for a US citizen.
If you are anything else, to him, you are a terrorist.
He makes Eugene McCarthy look like TED KENNEDY!
To me, this a mental health issue (Bush's). The fact that it's now a legal one is merely a side effect of his disease.
He needs to be impeached and quickly before the personal lives of more innocent Americans are unjustly targeted or before he singlehandedly annihilates the entire planet.
Big Brother ain't only watching -- he's part of a gang.
I believe ou're misinterpreting the statutory text in 50 U.S.C. § 1802(a)(1)(A)(ii), which provides:
ReplyDeleteHonestly, I'm a bit hesitant to engage in statutory debates here because the issue is so clear and these debates give the appearance that there is a reasonable ground for arguing the legality of the Administration's position, which there is not, and which, ironically, I doubt even the Administration will argue (opting instead for the Yoo Theory that the President Is the law).
Nonetheless, your errors are clear enough that I think they can be pointed out without clouding the issue:
FIRST - FISA itself specifically states that the authorization it provides is the EXCLUSIVE legal basis for eavesdropping in the United States:
FISA “shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” [18 U.S.C. § 2518(f)].
Thus, by definition, anyone who eavesdrops in violation of its requirements has committed a criminal offense.
SECOND - No matter what else you want to say about Section 1802, it allows surveillance ONLY where "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." 1802(a)(1)(B).
Thus, where the Administration knows that it is eavesdropping on the communications of a U.S. citizen and does it without a warrant, it is violating FISA and cannot reasonably claim that Section 1802 provides it the authorization to do so.
THIRD Section 1802 is nothing more than an exemption to the general FISA prohibition on eavesdropping without a warrant. On its face it applies only to agents of foreign states, and not to suspected non-governmental terrorists, no matter where the communications originated.
If you think that what the Administration did comported with FISA, why did the President have to issue a secret Executive Order to allow the NSA to do this, and why did Bush brag about these authorizations in his radio address yesterday as some sort of great extra new protection he gave to all of us, if all they were doing is invoking the procedures already in FISA?
What's the answer to that?
jj-
ReplyDeleteYou're quoting a passage that allows surveiling "technical intelligence... that originates from a foreign embassy or consulate" to argue that it allows eavesdropping on terrorist organizations. Your argument doesn't make sense. Furthermore, not every administration since Roosevelt has argued that the President can disobey the law in wartime. You just pulled that out of your ass.
This comment has been removed by a blog administrator.
ReplyDeletejj --
ReplyDeleteRather than Greenwald "misinterpreting" the statute, it looks to me like you're making a huge assumption: that the survellience in question was only of non-spoken communications originating from employees or entities of foreign governments.
I can practically guarantee you that this isn't what we're talking about, since monitoring of such communication is indeed routine and, in fact, expected. I would be extremely surprised if this had been what was done here, and the administration had not simply quoted the statute in its defense. The NSA does that sort of signals intelligence all the time, and is supposed to.
In other words, everyone knows and expects that communications originating from foreign governments to non-citizens here are monitored -- this is the "Russia was telling its agents here what to do" sort of stuff. I am deeply skeptical that the administration would not have defended such routine monitoring with FISA itself.
I can't believe the tempest in a teapot! As far as I am concerned, to do other than Bush has done, is potential cultural suicide! This is not to mention the innocent AMERICAN lives that would be lost through terrorist events occuring in our country. I AM NOT a total Bush supporter, but in this case, I think "Dubbyah" is in the right! The best way to defend our shores is to keep our enemies OFF our shores! This is simple common sense! Fight the guy in HIS country rather than ours, and to do that effectively, we need intelligence data! At the core, I agree with the privacy issues, but I also agree with the need for information to protect OUR citizens. The fact of the matter is that the government has always been able to wiretap or surveil without warrants as long as they are willing to forgo use of the information aqquired as procecutorial evidence.
ReplyDeleteSo in other words, you're saying if Instapundit has an honest bone in his body, he'll print a retraction?
ReplyDeleteI'd love to see that.
Stormcrowe,
ReplyDeleteFind me the statute that allows government agencies to "wiretap or surveil without warrants as long as they are willing to forgo use of the information aqquired as procecutorial evidence."
The fact is, it simply doesn't exist. FISA is the law on this, and there is no "not used in court" exemption.
I'd also like an explanation as to why the administration had to ignore FISA to protect us from terrorists. It specifically allows for survellience with a warrant from a court that pretty much always grants them, and without one for emergencies.
There's literally no way around this. FISA is more that sufficient and flexible enough to allow the administration to protect us. The beauty is that it also protects us from a government run amok.
This isn't about terrorism. It's about disregard for the law.
t stormcrow: What is your legal basis for claiming: The fact of the matter is that the government has always been able to wiretap or surveil without warrants as long as they are willing to forgo use of the information aqquired as procecutorial evidence.
ReplyDeleteAre you seriously arguing that the federal govt may constitutionally, and without contravening FISA, search your home, car, tap your fone, or plant a chip in your computer at will -- with no warrant -- as long as it doesn't employ any fruit of such searches in prosecuting you?
Absolutely amazing.
Glenn
ReplyDeleteExcellent post. For the record, Balloon Juice has updated his post with a link to yours.
Thank you for noting this blatant dishonesty.
ReplyDeleteIt is bad enough that the President has decided he is above the law. Then wingnuts misstate what the law says in an attempt to legitimize the president's activity.
We have a clear crisis here. The president set aside federal statute and the Constitution in the interest of fighting the war on terror. As Glenn Greenwald says, if you think it is ok for the president to treat the Constitution as just a piece of paper, at least be honest about your willingness to tear the guts out of our democracy.
1801;(2) "a faction of a foreign nation or nations, not substantially composed of United States persons;"
ReplyDeleteTHIS COVERS AL QAEDA.
BTW: as you note in the comments section, FISA ONLY and EXCLUSIVELY deals with DOMESTIC surveilance, NOT international.
ReplyDeleteYou wrote:
FISA “shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” [18 U.S.C. § 2518(f)].
This surveilance was of international communication and communication between foreign powers and persons unknown to be foreign powers or not. After all, unless and until you surveil, how do you know if the caller (or receiver of the call) is foreign or a US citizen!?
Besides, "... FISA permits the government to monitor foreign communications, even if they are with U.S. citizens.
A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power."
Since the communications surveiled were international FISA doesn't apply.
(B) an order under this chapter for a surveillance targeted against an agent of a foreign power, as defined in section
ReplyDelete****1801
****(b)(1)(A)****
of this title may be for the period specified in the application or for 120 days, whichever is less.
HERE IS SECTION 1801 (b) (1) (A):
"§ 1801. Definitions
Release date: 2005-03-17
As used in this subchapter:
(b) “Agent of a foreign power” means—
(1) any person other than a United States person, who—
(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power *****as defined in subsection (a)(4) of this section;****
HERE IS SECTION (a) (4):
"(4) a group engaged in international terrorism or activities in preparation therefor;"
THEN THERE IS THIS SECTION:
"[1805 -] (f) Emergency orders
Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;
he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest. In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person. A denial of the application made under this subsection may be reviewed as provided in section 1803 of this title. "
Some blogger named Glen Greenwald wrote a staggeringly dishonest post which he said was based upon a post by Al Maviva concerning FISA. He then proceeded to deliberately mis-quote Al’s post in order to reach the patently false conclusion that Greenwald had the faintest idea how and to whom the White House had applied USC Sections 1801 and 1802.
ReplyDeleteAfter wading through nine paragraphs to reach the first actual argument with Al’s post, Greenwald … you guessed it … misquotes Al completely.
Greenwald: But that does not stop Al Maviva from arguing that the Administration was allowed to engage in warrantless eavesdropping on terrorist groups pursuant to this section. To argue this, he purports to quote the authorization language of § 1802, but omits from his quotation the part of the statute which entirely negates his argument—namely, the part which limits this authorization to subsections (1)-(3), but excludes subsection (4).
Al’s actual statement: Well, yes, it seems the President probably does have the power to order NSA to monitor suspects, without a warrant, in terrorism cases, where the communications are between controller/co-conspirator, and target, and the terrorist group is tied to foreign countries or particular factions in foreign countries. It’s tied to particular circumstances though, so it’s worth knowing more about the details if you wish to comment intelligibly on the issue.
Advice I’m sure Greenwald wishes he had heeded.
Greenwald again: When pretending to quote the statute, Al Maviva simply omitted the language making clear that the warrantless authorization applies only to foreign powers referenced in subsections (A)(1)-(3), and not to terrorist organizations, referenced in (A)(4).
Look at Al’s quote again, Greenwald. See the highlighted portion? Yeah, I do think “foreign countries” means the same as “foreign powers”, and no, I don’t see any need to peruse your … offering any further.
And dammit, Glenn really should know better than to listen to chumps like, uh, Glenn.
[cross-posted by Joe at Cold Fury]
Let's face it, the President's instincts are all dictatorial, bordering on thuggish. He and his supporters claim that the normal constitutional protections are no longer operative for all kinds of hysterical reasons including, they're gonna nuke the Brooklyn Bridge (i.e. the Rohrabacher defense).
ReplyDeleteIt's important for us to repeat time and time again that the machinery of justice is flexible enough to accomodate these challenges -- if there's a willingness on the part of the Administration to bother using them.
To show how pathetically unnecessary this particular grab at power is, there's the following line from an editorial in the Kansas City Star:
In one Keystone Kops episode, the FBI, which had a warrant, and the National Security Agency, which didn’t, were both monitoring the same individual.
If the proper channels were so ineffective and time was of the essence, how is it that the FBI -- presumably using a plain vanilla warrant -- was already on the scene?
This is but one of several times that I have been disheartened -- disgusted, really -- by partisans of a President for whom I voted to defend him when what he is doing is clearly wrong, and in this case almost certainly illegal. A bit ago, some pro-Bush talking head on Fox claimed that if the NSA goes before the FIS Court and the Court turns them down on a request for a warrant, they are free to disagree with and ignore the Judge, and eavesdrop anyway!
ReplyDeleteWhatever that kind of argument is, it is not one based on the rule of American law.
The warrantless interceptions under discussion are illegal per FISA. Period. Full stop.That is why, as Glenn has noted, Bush has not relied on FISA to justify this operation; rather, he is claiming that as Commander in Chief and President of the United States, and per an Executive Order (not FISA), he is entitled to authorize warrantless intercepts. This is what the NYT article said (my emphasis):
"Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States - including American citizens, permanent legal residents, tourists and other foreigners - is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation... President Bush did not ask Congress to include provisions for the N.S.A. domestic surveillance program as part of the Patriot Act and has not sought any other laws to authorize the operation. Bush administration lawyers argued that such new laws were unnecessary, because they believed that the Congressional resolution on the campaign against terrorism provided ample authorization, officials said."
Now, one could certainly understand such a position in the terrifying months after 9/11. But at some point well before 2005, it certainly became possible to resort to FIS Court, where expedited approval from that Court is available, and not difficult to secure. The NYT piece again:
"The standard of proof required to obtain a warrant from the Foreign Intelligence Surveillance Court is generally considered lower than that required for a criminal warrant - intelligence officials only have to show probable cause that someone may be "an agent of a foreign power," which includes international terrorist groups - and the secret court has turned down only a small number of requests over the years. In 2004, according to the Justice Department, 1,754 warrants were approved. And the Foreign Intelligence Surveillance Court can grant emergency approval for wiretaps within hours, officials say."
If Bush wanted FISA amended so that intelligence agencies may intercept the foreign communications of U.S. citizens in the U.S., he has had ample opportunity when the Patriot Act was first passed, and again now that its sunset provisions place it up for possible renewal. But he has chosen instead to simply rely on an Executive Order that is now quite remote from 9/11. The WOT is, as Bush has said, going to continue for a decade or more; does that mean the President -- any President? -- may henceforth, at will and with no Court approval, intercept the communications of U.S. citizens with persons outside the nation?
Please. Bush & Co. knew that to ask for Congressional authorization of this operation would ignite a controversy, and they wished to avoid that. They might have lost that one on civil liberties grounds and the accurate suspicion that such a policy is unconstitutional. And they don't need such approval anyway, not with the FIS Court available to them to issue warrants.
Let's be honest about what Bush has done and is arguing for. It is a huge expansion of Executive power, and one that all true patriots and civil libertarians should be concerned about.
hypatia, we are known by the company we keep.
ReplyDeleteI don't much like the company Bush keeps, and apparently neither do you. Why continue to support him?
Actions speak louder than words. Bush's actions speak for him far more accurately than his words.
Just wonderin'.
Jake
To the anonymous person above who claims that I mischaracterized Al's argument, all anyone has to do is click on the link I provided and read what he says. The post is entitled "Much ado about Nothing."
ReplyDeleteHe chose that title because he believes there is ground to claim that Bush violated FISA here, as he makes clear:
It’s not surprising Bush is angry – it sounds to me like he followed the letter of the law, only to be hit by the NY Times, . . .
And his conclusion that Bush "followed the letter of the law,” meaning FISA, is based on exactly the misquoting statutory rationale which was the subject of my post. Here’s Al explaining his “legal theory”:
"Got that? The definitions portion of FISA (sec. 1801) defines an agent of a foreign power to include people believed to be involved in terrorist operations, regardless of U.S. person status – a broader classification than the traditional pure intel definition of agent of a foreign power. The Act then goes on to provide for a presidential and AG certification / approval process for monitoring the communications of such persons – which sounds a lot like what Bush was describing in his speech today."
Contrary to Al's claim, section 1802 does NOT refer to the terrorist category in the definition section of 1801, and can be said to have done so ONLY IF one falsely claims, as Al did multiple times, that 1802 applies to all of 1801, rather than only subsections (1)-(3). Al was able to exonerate Bush's actions by claiming that 1802 allows warrantless surveillance “of people believed to be involved in terrorist operations,“ -- a conclusion he was able to reach only by deleting the subsections (1)-(3) limitation when pretending to quote from 1802.
It's hard to believe that someone could fail to see that unless they wanted not to.
jake asks: I don't much like the company Bush keeps, and apparently neither do you. Why continue to support him?
ReplyDeleteWe are a de facto two party system. I would not vote for a scumbag, Communist-supporting, waffling jerk like John Kerry to sit on my local planning commission, much less to be CiC charged with waging a war against our enemies.
On domestic issues I have a history of savaging Bush and the GOP. But not on foreign policy, which was my paramount concern in '04.
Finally, I do not want to derail this thread, and wish it to remain focused on the points in Glenn's post. So, Jake, you asked, I answered, but I won't defend my answer or my views of John Kerry. This isn't the time or place.
Glenn, warmest regards.
ReplyDeleteFor what it's worth, I considered your argument before writing the post, it's the weakness I cite in my blog entry, and since I didn't really care to get into all the minutae, and I don't think the portion of FISA you cite is dispositive of the *legal* question or the overall question of whether the Administration position is reasonable under the law, I left it out.
The question you identify appears to be an open question - "is a 'group engaged in international terrorism or activities in preparation therefore' a sui generis classification, or can such a group concurrently fit under one of warrantless monitoring definitions in subsections 1-3?"
It struck me that this is probably a question of fact, which is why I stated expressly that the warrantless monitoring authority is tied to particular circumstances. . . so it’s worth knowing more about the details if you wish to comment intelligibly on the issue.
In other words, simply knowing that 500 people may have been monitored over 4 years is irrelevant. What matters, is whether the group members located in foreign countries were working for groups falling within the definitions 1-3, thereby moving them into the category of groups whose US agents are subject to warrantless monitoring.
Sub sec. 1801 defines such groups to include:
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
It seems to me that subsection 2 could encompass a terrorist organization claiming to be a national government, or to possess a fraction of the national sovereignty of a particular nation. The Tamil Tigers (pre-peace settlement) come to mind. Insofar as Al Qaida makes claims to govern Afghanistan or parts of it, or did so in the recent past, or insofar as AQ's warlords comprise a "national faction" then this at least arguably would bring AQ operatives abroad communicating with their domestic agents within the warrantless monitoring exception.
Subsection 3 could bring operatives of state-sponsored terrorist groups within the warrantless monitoring exception - Syria and Iran are fairly open in their support of Hezbollah, for instance. I don't think this would be very controversial, given the openness of support of those two nations of the terrorist group that has killed more Americans than anybody else except Al Qaida. And RJR, but I digress.
There are ambiguities here in interpretation that bother me, and were I at DOJ or the WH counsel's office, I would ask Congress to clarify - can a foreign power group engaged in terrorist activities (subsection 4) simultaneously fall within any of subsections 1 through 3? Until the courts construe the terms, I submit there is considerable play in the joints, and that it isn't unreasonable for the Administration to treat AQ or Hezbollah suspects as belonging to both terrorist, and state sponsored / factional foreign power organizations.
I will gladly concede that if one applies a strict constructionist approach, one could resolve the question in the other direction, but I believe that it is a question on which reasonable minds could disagree. At least in the FISA court's classified proceedings, the Administration is likely to roll out its most hair raising tales of terrorist mayhem and claims of national sovereignty to support its claims; if that court decides the issue is a factual question the Administration probably wins. Similarly, the constitutionality of this type of monitoring where it involves people with U.S. itizenship or immigration status is far from a settled question, but that's a whole 'nother argument for another day.
BTW, I caught Senator Reid's interview this morning. I don't have a transcript, and am hoping to find one. He seemed to believe that the program was legal, aware that Congress was briefed, and then he made it quite clear he hoped that the leakers could be caught and "prosecuted to the fullest extent of the law", due to the damage the leak caused to national security activities. If I'm way out there on this one, I'm standing with your minority leader.
Finally, sorry about the long windedness but you accused me of some pretty serious ethical misconduct here. Glenn, do me a favor and drop the name calling, and feel free to stop by and comment at Cold Fury any time - though be warned a lot of our posts tend towards tools, motorcycles, booze, music, or bicycles. I don't agree with your take on this particular issue but you are doing your homework and most of our commenters / posters are susceptible to reasonable, well-backed up arguments, and one area where most conservatives could use some well backed up argumentation where it relates to civil liberties - most of the dialogue in this area is people talking past each other because folks are hardened into reflexive positions, and it's an area where the politicians will use the ongoing terrorist threat take advantage of us if there isn't an effort to develop left-right consensus on a lot of issues - like the elephant in the room issue I raised in my post, which is the expansive definition of terrorism under the FISA.
Section 1801 and 1802 are very clear--warrantless wiretap powers are limited to observing communications of people suspected to be acting on behalf of foreign *governments*. 1802 is very clear on this point by limiting the wiretap powers to persons defined in 1801 a 1, 2, and 3--4, 5, and 6 are not included. Yep--there are two more definitions in 1801(a) after 4, and it helps to keep this in mind when considering the inclusions in 1802.
ReplyDeleteTo me, it appears to authorize espionage on foreign governments, which is nothing new. It does *not* appear to authorize espionage on non-governmental individuals. Individuals who are not suspected to be acting on behalf of governments are to be treated like any other individual *suspected* of involvement in criminal acts--which means warrants, even the retroactive ones FISA allows for within 72 hours.
I can't believe the tempest in a teapot! As far as I am concerned, to do other than Bush has done, is potential cultural suicide!
ReplyDeleteThe Constitution is the culture.
Never forget that the Bush administration thought America's security would be at risk if
ReplyDeleteKerry were elected. They wanted this warrantless eavesdropping authority because no judge would ever issue a warrant for the people they wanted to monitor, like George Soros, Michael Moore, Jimmy Carter, John McCain, Move-On, and the Democratic National Committee.
Bush has relied on his own brand of ignorsion-ist history since he took office. If something doesn't fit in with what he wants, he just ignores it as if it were not real. It comes as no surprise that now, his supporters in his defense will also ignore anything that doesn't fit in with their view of how things should be.
ReplyDeleteFortunately, the American people seem to finally be waking up to the real facts about this administration and it's die hard defenders
FISA doesn't apply to non-US persons. See Captain's Quarters for a post on this.
ReplyDeleteThere are many other reasons (other than FISA) why the Presidents order to conduct warrantless surveillance was perfectly proper and legal.
Just one of the thoughts presented below. This one from Alan Meese posted at Professorbainbridge.com:
Can anyone name one other war in which the FBI had to get a warrant to monitor a US citizen calling the enemy in a foreign country? If a German spy in Chicago was calling Himmler in 1943, do you think J. Edgar Hoover would have sought a warrant? Would evidence have been excluded? No --- and the spy would have been caught and executed after a secret trial in a military court. See EX PARTE QUIRIN, 317 US 1 (1942)(unanimous).
Please look at this research below which I originally posted at professorbrainbridge.com
To Alan Meese's excellent posts and questions I would point readers to the Supreme Court's many decisions in the "Special Needs" category where various kinds of warrantless searches are approved as perfectly constitutional because they are reasonable in balancing the special needs of government with the constitutional protections for individual privacy and 4th amendment protections. These special needs cases were summarized by the US Foreign Intelligence Surveillance Court Of Review in its 11/18/02 Opinion as follows:
<<<<<<<<<<<<<<<<<<<<<<<<
Supreme Court's Special Needs Cases
The distinction between ordinary criminal prosecutions and extraordinary situations underlies the Supreme Court's approval of entirely warrantless and even suspicion less searches that are designed to serve the government's “special needs, beyond the normal need for law enforcement.” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (internal quotation marks omitted)) (random drug-testing of student athletes).32 Apprehending drunk drivers and securing the border constitute such unique interests beyond ordinary, general law enforcement. Id. at 654 (citing Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990), and United States v. Martinez- Fuerte, 428 U.S. 543 (1976)).
A recent case, City of Indianapolis v. Edmond, 531 U.S. 32 (2000), is relied on by both the government and amici. In that case, the Court held that a highway check point designed to catch drug dealers did not fit within its special needs exception because the government's “primary purpose” was merely “to uncover evidence of ordinary criminal wrongdoing.” Id. at 41-42. The Court rejected the government's argument that the “severe and intractable nature of the drug problem” was sufficient justification for such a dragnet seizure lacking any individualized suspicion. Id. at 42. Amici particularly rely on the Court's statement that “the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.” Id.
But by “purpose” the Court makes clear it was referring not to a subjective intent, which is not relevant in ordinary Fourth Amendment probable cause analysis, but rather to a programmatic purpose. The Court distinguished the prior check point cases Martinez-Fuerte (involving checkpoints less than 100 miles from the Mexican border) and Sitz (checkpoints to detect intoxicated motorists) on the ground that the former involved the government's “longstanding concern for the protection of the integrity of the border,” id. at 38 (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985)), and the latter was “aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways.” Id. at 39. The Court emphasized that it was decidedly not drawing a distinction between suspicion less seizures with a “non-law-enforcement primary purpose” and those designed for law enforcement. Id. at 44 n.1. Rather, the Court distinguished general crime control programs and those that have another particular purpose, such as protection of citizens against special hazards or protection of our borders. The Court specifically acknowledged that an appropriately tailored road block could be used “to thwart an imminent terrorist attack.” Id. at 44. The nature of the “emergency,” which is simply another word for threat, takes the matter out of the realm of ordinary crime control.
>>>>>>>>>>>>>>>>>>>>>>>>>>
Besides erroneously quoting non-supported dicta some of the commentators above have referenced the 1967 Supreme Court Decision in Katz, but Katz is by its own words completely inapplicable to the instant situation involving President Bush authorizing the NSA to conduct certain warrantless/Non-FISA Ordered searches for foreign intelligence information gathering.
In Katz: the Supreme Court acknowledged that the President had claimed special authority for warrantless surveillance in national security investigations, and explicitly declined to extend its holding to cases "involving the national security." Id. at 358 n. 23.
Similarly, Congress in the Title III (wire tapping statutes) stated that "nothing in Title III shall . . . be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government."
In fact every federal appellate case that decided the issue recognized the President's inherent constitutional authority to conduct warrantless surveillance for national security purposes. Again quoting from the USFIS Court Of Review 11/18/02 Opinion:
>>>>>>>>>>>>>>>>>>
The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power. The question before us is the reverse, does FISA amplify the President's power
<<<<<<<<<<<<<<<<<<<<<<
So to close, I'd just like to say that as a 4th amendment constitutional scholar, Professor B is a really good corporate scholar ;-)), and to those who complain about conservatives instinctively approving of President Bush's actions which were so clearly to them, at least, unlawful, I would ask: Why is it that you lefties jump like chicken littles shouting the sky is falling and flailing about with your arms and legs if the President seeks to lawfully protect our national security interests (or for that matter if a small child opens a prayer book in the public school cafeteria and silently gives thanks to the lord for providing that 1st class government supported meal).
Gary Britt (I'm sorry but I don't have any great literary quotes from the founding fathers, because to be quite frank they would have thought all you chicken littles were nuts to be against the President protecting the country from foreign enemies by conducting warrantless surveillance of the communications made between the enemy and people in this country at a time of war.)
Next Judge consider these posts from Alan Meese at professorbainbridge.com
Justice Powell's dicta contravenes the actual language of the 4th Amendment, precendent, historical and current practice. And, Powell himself ignored it numerous times.
1) The language of the 4th Amendment simply forbids "unreasonable searches" and says that, if you want a warrant you need probable cause. It does not require a warrant or probable cause before a search or seizure. Is there new language out there I am not aware of?
2) The Supreme Court has described 2 dozen situations in which no warrant is required for a search or seizure including very large categories like arrests for felonies and searches of automobiles. So far as I know, Justice Powell supported all of these decisions. These searches and seizures are valid even if it is practical/easy for the officer to obtain a warrant.
3) In 1789, the same Congress that wrote and proposed the Bill of Rights authorized warrantless searches of ships. James Madison signed legislation in 1815 that authorized warrantless searches of vessels, beasts, and persons.
Since the beginning, police have arrested and searched suspected felons without a warrant. Today the police can arrest a suspected felon, search his effects and put him in jail for 48 hours without seeking a probable cause determination from a magistrate. This is a very large intrusion, and no warrant is required, even if the police could easily get one. Ditto for searches of your car, boat, or mobil home.
4) The state interest in detecting terrorist activities BEFORE they come to fruition is much stronger than the interest in, say, detecting illegal drugs, the latter of which Justice Powell called "compelling" in US v. Mendenhall. Plus, the intrusion of, say, a wiretap may be far less than the intrusion of an arrest and search incident to it, plus the 48 hour incarceration that the law allows. A fortiori, then, a warrantless wiretap of someone suspected of conspiring with Al Qaeda seems quite reasonable.
5) The preference for a warrant may be alive and well in Law School Classrooms. But, Akhil Amar debunked it as a historical matter long ago, as have others. Plus there is the pesky constitutional text, which militates against such a presumption. Ivory tower fulminations against warrantless this or that, even in opinions by Justice Powell, are not up to the task of determining what is reasonable and thus Constitutional when agents of foreign adversaries are in your country plotting to kill your fellow citizens.
6) If there really is a warrant requirement, I guess we'll have to get rid of metal detectors at airports.
1) Why should it matter that the intercepts are admissible in court? The notion of excluding evidence that was "unlawfully seized" was rejected by most courts in the US until 1965. There is no basis in the constitution for such exclusion.
2) Second, what "rule" is being "bent?" Can anyone name one other war in which the FBI had to get a warrant to monitor a US citizen calling the enemy in a foreign country? If a German spy in Chicago was calling Himmler in 1943, do you think J. Edgar Hoover would have sought a warrant? Would evidence have been excluded? No --- and the spy would have been caught and executed after a secret trial in a military court. See EX PARTE QUIRIN, 317 US 1 (1942)(unanimous).
Sorry, folks, but for all the rhetoric, we're not in a war. No war has been formally declared.
ReplyDeleteSo any special powers the president might be able to claim in that situation are not valid at this time.
If rhetorical usage were sufficient, then Bush would be locking up Americans without trial as part of the War on Christmas.
To the anonymous legal blowhard above, I say we Chicken Littles disagree with you Chickenhawks that the President's purpose is to "protect" anyone against foreign enemies, period.
ReplyDeleteAs must be eminently clear by now, the President's purpose is to exploit the fears of gulllible folks like you in order to grab and consolidate as much power as possible over what used to be known as "the electorate".
American citizens -- not just 'terrorists', not just Muslims, AMERICAN CITIZENS -- can now be arrested, jailed, tortured, all without trial, without charge, without legal recourse. You think it's just funny-talkin' brown people -- but that means ANYONE. You can be wiretapped without any legal authority being consulted, all that's required is that a man who was a silver-spoon draft dodger, a C legacy student at Yale who can't even pronounce "nuclear" -- decide that he thinks you're suspicious.
You APPROVE of this?
Your hysterical line about "children opening prayer books" marks you as the kind of partisan stooge who masks his willing ignorance in a blizzard of statutory references that are typically WRONG -- I have total faith that someone in this thread will totally disprove all the crap you've flung up here. I've seen it time and time again: you spend millions of our money on Whitewater, you caled it a national crisis when Clinton got a blowjob or when Al Gore held a fundraiser at a Buddhist temple --
-- but Bush subverts the fucking Constitution itself and you DEFEND HIM! Conservatives are full of shit and they all know it.
Go ahead, get angry and indignant -- but we're not letting you or your wannabe monarch get away with it any more. You've been wrong about everything since Vietnam and guess what? You're wrong now, and you should be ashamed of what you're fighting for.
mercury
I responded to Jeff (Protein Wisdom)'s comment here in the Comments section of his site, where he also posted briefly about this issue.
ReplyDelete"That will happen here. As soon as these drones realize that Bush violated the law, they will switch to "he SHOULD violate the law.'"
ReplyDeleteIt already has. I don't know about you, but I was really struck by Bush's radio address yesterday. This is a sea change-and-a-half for administration m.o.
I mean, the guy basically came on the airwaves and announced, "Yes, I broke the law. Yes, I violated the Constitution. I will break the law again. And what the hell, exactly, are YOU going to do about it?"
"You" being Congress, and the American people.
He then procedes, from the bully pulpit, to declare the exposition of this crime a crime in itself.
Please correct me if I'm wrong, but this both mirrors Nixon's Constitutional crisis with the Saturday Night Massacre... and surpasses it, in that he's not merely openly defying Congress and the Constitution... he's announcing it to the world, with middle finger extended.
I hear that a presidential address is forthcoming. Am I tinfoil hat to suggest that draconian penalties for the press will be ordered... at best... and at worst, that the neocons may now make their Hail Mary play for total rule by executive decree?
p.s.. Mr. Greenwald, thank you for truth-squadding this whole affair, before CW took over and Mr. Maviva's disingenous propaganda became as accepted a reality as "kerning". This is exactly how you fight this crap.
All Things Beautiful TrackBack 'The President's Week From Hell (OPEN THREAD)':
ReplyDeleteAnd from the left, my good friend Glenn Greenwald has a very persuasively argued point of view. Enter the comments at your own peril. LOL....
anonymous repeatedly quotes someone named Alan Meese, asking: Can anyone name one other war in which the FBI had to get a warrant to monitor a US citizen calling the enemy in a foreign country? If a German spy in Chicago was calling Himmler in 1943, do you think J. Edgar Hoover would have sought a warrant? Would evidence have been excluded? No --- and the spy would have been caught and executed after a secret trial in a military court. See EX PARTE QUIRIN, 317 US 1 (1942)(unanimous).
ReplyDeleteThis is simply ignorant. At the time, Hoover would have been able to rely on OLMSTEAD v. U.S., 277 U.S. 438 (1928), which per KATZ v. UNITED STATES 389 U.S.347 (1967), is now no longer good law.
Indeed, dissening in KATZ, Justice Black writes: "But until today this Court has refused to say that eavesdropping comes within the ambit of Fourth Amendment restrictions. See, e. g., Olmstead v. United States, 277 U.S. 438 (1928), and Goldman v. United States, 316 U.S. 129 (1942)."
The national security exception and the President's inherent authority to conduct warrantless searches will take a bit more time to investigate, but I wanted to settle that Hoover-Hitler point at once, as it is so easy to do. At least we seem to have moved beyond the idea that Bush has been within FISA; he has not.
Mercury's bloviations included:
ReplyDelete"I have total faith that someone in this thread will totally disprove all the crap you've flung up here. "
Mercury do you think they will use the same quality of dispassionate, iron clad reasoning as you when they do?
So far no one is even trying to tackle the obvious, which is that what I posted complete with case cites is quite accurate.
As upset as my post made you and a few others I would have thought Mr. Greenwald would have jumped all over, seeing as how you say its just crap. So far he's not going anywhere near it. Wonder why?
For your next post Mercury maybe you could just use some form of "Oh Yeah, well I'm a rubber and your glue and everything you say...."
I didn't realize this was a whacko hangout for refugees from the democratic underground. I thought this was a place of discussion and exchange of ideas in a civil and logical manner.
glb
hypatia, you need to go back and re-read my original post in its entirety, but this time more slowly and for greater comprehension.
ReplyDeleteHypatia said:
"This is simply ignorant. At the time, Hoover would have been able to rely on OLMSTEAD v. U.S., 277 U.S. 438 (1928), which per KATZ v. UNITED STATES 389 U.S.347 (1967), is now no longer good law."
The problem with your statement above is that as clearly pointed out in my original post KATZ, by its own words DOES NOT APPLY TO THE PRESIDENT'S INHERENT CONSTITUTIONAL AUTHORITY TO CONDUCT
In Katz: the Supreme Court acknowledged that the President had claimed special authority for warrantless surveillance in national security investigations, and explicitly declined to extend its holding to cases "involving the national security." Id. at 358 n. 23.
So there you have it. The Supreme Court said KATZ does NOT apply to cases involving national security.
If you go back and re-read my original post as I suggest above you'll note there every court that has considered and ruled upon the issue has recognized the President's inherent constitutional authority to conduct warrantless foreign intelligence surveillance.
g
Mr. Barry Chaplain,
ReplyDeleteThe reason you're analysis fails about the President violating the FISA statute is that as noted in my original post quoting from an opinion of the US Foreign Intelligence Surveillance Court of Review opinion of 11/18/02
FISA can NOT restrict or impinge upon the President's inherent constitutional power to conduct warrantless surveillance for national security/foregin intelligence purposes. FISA can only ADD to that power.
To explain it in a non-legal way. Congress as a separate and co-equal branch of government can not pass a law that says the President can not exercise the constitutional powers granted to him under the constitution itself. Such a law is void and invalid and unenforceable because congress can't pass a law that abridge's the constitution itself.
Congress can't pass a law that says the President can't be Commander in Chief and if he acts as Commander in Chief then he is guilty of a crime.
Hence, I'm afraid you are just going to be disappointed about your impeachment/criminal prosecution dreams.
G
Why must a " foreign power" be interpreted only a sovereign nation-state when international law accords certain non-state actors - typically guerilla movements - rights of belligerency ?
ReplyDeleteAnonymous, with all due respect, the deficit in reading comprehension is not mine.
ReplyDeleteIn Footnote 23 of Justice Stewart's Opinion, the KATZ Court said: "Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case."
In his *concurrence* Justice White refers to that footnote, and says: "We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable." But that was not the holding in KATZ because it was not a question presented.
Moreover, and more saliently, Justices Douglas and Brennan, also concurring, take strong exception to White's dicta: " While I join the opinion of the Court, I feel compelled to reply to the separate concurring opinion of my Brother WHITE, which I view as a wholly unwarranted green light for the Executive Branch to resort to electronic eaves-dropping without a warrant in cases which the Executive Branch itself labels 'national security' matters."
And again -- J. Edgar Hoover would not have had to worry about any of this one way or the other during WWII, because per OLMSTEAD, law enforcement, for any reason in that era could tap a telephone without a warrant. KATZ overruled OLMSTEAD essentially sub silencio, but did not reach the issue of national security in its holding.
I find it almost laughable that there are those in the blogosphere that are trying to make Bush's conduct seem legal. Bush himself admitted his wrongdoing, except he promised to keep on doing it.
ReplyDeleteThis comment has been removed by a blog administrator.
ReplyDeleteHypatia said:
ReplyDelete"but did not reach the issue of national security in its holding."
That's true and we agree then KATZ does NOT apply to national security matters. The reason it doesn't apply is because the court specifically stated in its holding that it was not extending KATZ to matters of national security.
The dual footnotes and concurrence dicta are irrelevant and do not support your point. They don't represent anything the court ruled, but they do imply differing possible standards and opinions among the justices.
Also KATZ was before many of the Supreme Court's special needs rulings where the Supreme Court has allowed for several types of warrantless and sometimes even suspicion less searches. Many of these were in my original post.
G
At the risk of sounding as though I agree with the lame, baseless standalone argument "if the Constitution doesn't have the words 'right to privacy' you don't have it" (which I don't; I happen to think it is an implicit right, subject to reasonable restriction), where in the Constitution does it say "warrantless surveillance"?
ReplyDeleteIf it doesn't, then the government's power to conduct searches without warrant is interpretable, and certainly can be restricted or modified by the legislative and judicial branches.
Anonymous "G" at 7:43PM, your argument makes no sense legally or historically. Congress can pass, and the President can sign, unconstitutional laws, and they have, no matter the party, even when a law's intent was to abide by the Constitution.
The text of FISA clearly restricts the executive branch from conducting warrantless search upon that (4) classification, even despite the 72-hour window of reporting such an act to courts. The courts. Judicial review is the issue here, and Bush thinks he can avoid it. He can't.
Why in the hell did the colonies secede from the UK if, among other intrustions, they wanted their own government to be granted the unlimited power of warrantless searches? If they wanted the judicial branch to become meaningless or a tool of either branch, why did they allow for the possibility of judicial review of warrants at all in the 4th Amendment?
Why?
Also, it always cracks me up to see people defending President Bush using arguments the Bush Administration never makes.
ReplyDeleteWe could rely on FISA warrants, yes. Except it can take up to SIX MONTHS to get one.
ReplyDeleteJust minor deeeetail.
The bureaucratic paper work necessary is what takes so long. Once the request is actually filed, the warrant can come within a couple of days.
So the surveillance is done without the warrant and the oversight is done AFTER the fact by Justice dept AND Congress.
It's bureaucracy that is the enemy, not Bush.
Furthermore we are NOT targetting individual US citizens or anyone else within our borders. They just happen to be surveilled because we are watching communications with specific FOREIGN numbers and connections are sometimes made to numbers within the U.S. And these communications are time-sensitive.
ReplyDeleteIt has oversight. Ask Congress! They're involved in it.
We could rely on FISA warrants, yes. Except it can take up to SIX MONTHS to get one.
ReplyDeleteDo you have a citation for this? Everything I know about how the FISA court operates suggests that when the Government needs a warrant quickly and says so, it gets one immediately. The whole point of the FISA court - its entire structure - is to ensure there is no delay. Do you have any citation at all supporting your assertion that the Government has experienced undue delay in obtaining time-urgent surveillance warrants? I highly doubt it.
Moreover, we have this thing in the United States called the "rule of law." When a certain law isn't working well, the solution isn't to go and break it. If what you claim were true, and the Administration thought that FISA was impractical because it entailed too much delay, its political party happens to control both houses of Congress and it could have easily enacted changes to the law to accommodate those needs. It never tried to do so.
Instead, it just went and whimsically violated the law and now it has citizens like you - lots and lots of them, apparently - who are actually willing to defend the right of the Government to ignore and break the law as long as they come up with a decent reason afterwards why the law wasn't such a good idea.
At the risk of sounding melodramatic, that is seriously fucking scary.
Mr. Champlain, I'll try to answer your questions in the order they were presented:
ReplyDeleteSeveral federal courts, in fact every single one of them that has ruled on the issue, have found the President does have inherent constitutional authority to conduct warrantless searches for national security matters. This includes the supreme court. I cited several of these cases in my original post. You may want to relook at that.
Also, the concept of warrantless or even suspicion less searches are not new. There are many categories of Supreme Court approved warrantless and even suspicion less searches. The 4th amendment doesn't say there is to never be a warrantless search. It says we shall be free from unreasonable searches. Some warrantless and even suspicion less searches have been declared quite reasonable by the Supreme Court.
Here are some additionals citations:
See United States v. United States District Court (Keith ), 407 U.S. 297, 321- 22 (1972). Circuit courts applying Keith to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the United States which target foreign powers or their agents. See United States v. Clay, 430 F.2d 165, 171 (5th Cir.1970); United States v. Brown, 484 F.2d 418, 426 (5th Cir.1973); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.1974);
For examples of some of the other kinds of warrantless or even suspicion less searches allowed by the Constitution:
1. Boating in coastal waters;
2. Stopping traffic and looking for illegals within 100 miles of the Border;
3. Searches incident to arrest or what's called a "Terry" search where a person is stopped and searched without any probable cause and without being placed under arrest for the safety of the officer; Various kinds of searches of automobiles, RV's, etc. where the court has ruled such searches are reasonable and therefore no warrant required. There are in fact many more. Over 20 kinds of constitutional warrantless / suspicion less searches.
The constitutional authority for the national security warrantless searches is written in quill on the line that says the President is the Commander in Chief. That's not what I say. That's what the court's have recognized, in effect.
Its the courts that have said Congress can't impinge on the President's inherent constitutional authority to conduct warrantless searches in national security matters. I cited the cases and quoted therefrom in my original post that state this fact. You should look at my original post again.
G
I agree with Mr. Greenwald there is some seriously fucking scary stuff going on here.
ReplyDeleteIt certainly does appear that some current and former members of the CIA and State Department are making war on the democratic process and the elected sovereign government of the USA.
They are conducting this war by breaking the law and leaking various kinds of classified information, without any thought whatsoever to how leaking secret war information damages national security and puts the citizens of the USA in grave danger.
These traitors and their co-conspirators in the media should be investigated by a special prosecutor. These leaks of classifed information regarding our surveillance methods and practices, prison locations for various leaders of the enemies command and control, etc. are far more serious and of *real* injury to the safety of this country. Unlike the completely harmless Plame affair that has captivated so much of the co-conspirators attention in the MSM.
G
Prior practice by all administrations. Some got burned for it, some didn't. I am a cynic, I'm afraid. I didn't say it was legal, just not often prosecuted. If it was prosecuted, the legal loophole of inadmissable evidence would no longer be needed very often because the DA or Officer who illegally aqquired the evidence would also be jailed. Failure to prosecute = tacit use to develop legal evidence, and tacit use= unofficial approval unless the powers that be need a scapegoat.
ReplyDeleteanonymous "G" said,
ReplyDelete"Its the courts that have said Congress can't impinge on the President's inherent constitutional authority to conduct warrantless searches in national security matters...."
That is fundamentally incorrect. The restrictive power of the courts goes both ways. The power given the President comes from the law that is passed by Congress, signed by the President, and validated by the courts as constitutional. If the courts invalidate the law as unconstitutional, the President doesn't have that power.
Courts have frequently stated that the President/executive branch doesn't have unlimited search power, not even in times of war (nor the "national security" vagueness (which neither Bush nor you have seemed willing to define, by the way)), as this ruling, striking down a particular section of the law, indicates when discussing pertinent 4th Amendment issues (PDF format):
"http://www.nysd.uscourts.gov/rulings/04CV2614_Opinion_092904.pdf"
See Page 7.
(link found through Billmon's "Kissing the 4th Amendment Goodbye", "http://billmon.org/archives/002049.html"
There's little purpose to the United States' existing as it has if courts either are denied or deny themselves this fundamental right to review search warrants. It's that serious of a right.
Aaron g, I'm afraid you have several misunderstandings of things.
ReplyDeleteYour interpretation would be almost correct if the argument were that the President's power to conduct warrantless searches in national security matters came from a law passed by congress. However, this is one of the errors you are making. The President's power to conduct warrantless searches in national security matters comes from the Constitution itself, and does NOT come from a law passed by congress. Congress can pass laws that give the President even more power in this area than he has straight from the constitution, but congress can NOT pass a law that impugnes authority granted the President directly from the constitution itself.
The courts can determine the boundaries of the exercise of such powers that come directly from the constitution. They do this all the time. So far the courts have not proscribed any limits on the President's powers in this area that derive directly from the constitution.
glb
I think the most telling point is the one Glenn last addressed above - the FISA is not an impediment. If it is not an impediment, why circumvent it?
ReplyDeleteDoesn't it seem wholly crazy to circumvent a law that provides no impediment, only requires supervision by the Judicial branch? Why go around it? Even if you believe you have the authority, why exercise the authority if following the law presents no difficulties?
Unless, of course, it DOES present difficulties. Those come in two kinds, I think. The kinds that would interfere with a timely legal investigation, and the kind that would interfere with an illegal investigation.
I kind of wonder which one was the issue.
hypatia, I know this is a very interesting thread, but the meta issue laid bare for all to see is not the FISA - it is support for Bushco in the face of apparently illegal acts. I respect your opinion about Kerry, though I considered him to be by far the lesser evil.
Let's take a look at non-terrorist related deaths to give some perspective on this whole war thing. Here in the US about 17k people per year die in automobile accidents where alcohol was a contributing factor. If Bush really wanted to make a difference, he could get serious about drunk drivers. Why, if he cut the rate in half, which seems doable to me, he could have saved 50k people so far in his term. Instead, we have a GWOT that has killed more thann 30k people in Iraq and another 4k or 5k - maybe more - in Afghanistan, and no one thinks we are safer now than when Bush announced this war.
Why don't we have a war on drunk driving? I suspect Bush has personal experience with the subject. He could at least bring his own viewpoint to the task. Instead we have Iraq. And Osama is still a free man.
If this is the Bush foreign policy you desired, hypatia, well, all I can say is, I hope this isn't a dream come true.
'Cause I'm thinkin' nightmare.
Jake
FISA WARRANT application requirements.
ReplyDeleteTechnology has outpaced bureacracy. In this case time-sensitive communications are monitored, and the oversight comes after the fact.
Technology has outpaced bureacracy. In this case time-sensitive communications are monitored, and the oversight comes after the fact.
ReplyDeleteJust as I anticipated, you have no basis whatsoever for your facially ludicrous claim that FISA bureaucracy results in a 6 month delay for obtaining warrants.
When I asked you for a citation to support that wild assertion, you come and link to FISA itself. Did you think that was supposed to fool anyone into thinking that your that it takes 6 months to obtain a FISA warrant was anything other than a total fabrication?
As Jake said, given that FISA warrants are almost always approved, and approved immediately, there is no reason for the Administration not to comply with FISA, except:
(1) The Administration wanted to eavesdrop on the conversations of U.S. citizens who have nothing to do with Al Qaeda and therefore couldn't take those surveillance requests to the FISA court; or
(2) The Administration wanted to institutionalize the Yoo Principle that there are no cognizable limits on Executive power even in times of an undeclared, infinite war like this one, and it thus refused to acknowledge any such limitations (such as FISA limitations on its eavesdropping power) even though the restriction was more symbolic than anything else.
I'm not sure which of those two options is worse. Then again, both could be true.
You try getting all the necessary people to fill out all those forms in a timely manner. And, btw, put the terrorist on the other end of the line on hold while you do so.
ReplyDeleteIt's just silly to assume you can get a FISA warrant BEFORE you capture the phone call.
Here is something I'm sure you're interested in:
U.S. Constitution Amendment IV:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
And if you think talking to a number seized from a captured terrorist's computer is not probable cause, there's no hope left for us as a nation.
Glenn, thank you for this post and for putting up for the morally-impaired people who are contesting your interpretation of FISA.
ReplyDeletePeople might want to look up the legislative history of FISA. More broadly, what event was it that triggered the passage of FISA?
The answer, of course, was that at the height of the Cold War, when nuclear war was a daily and distinct possibility, we discovered that the Administration had taken exactly the position that the right-wing bloggers have taken: that the president can do no wrong. FISA was written to remind presidents that they are not kings nor dictators.
A good link for people who want to know what they are talking about is this one.
Right-wingers, that's a link you'll want to avoid. The Supreme Court, while acknowledging the President's powers to protect the American people, told Congress it could regulate that power. Congress did. So the power to wiretap is *not* unlimited.
Now, the fact is that FISA can be (and probably often has been) massively abused. Bush&Co. could have used FISA to obtain the authority. But they could also have set up an unofficial deal with the Brits or the Australians to monitor an American and report the results through back channels.
There are also significant holes in the way the law is implemented. Jason Vest had an excellent story in the Village Voice on pre-9/11Echelon
The facts drawn out by these sources reveal ECHELON as a powerful electronic net--a net that snags from the millions of phone, fax, and modem signals traversing the globe at any moment selected communications of interest to a five-nation intelligence alliance. Once intercepted (based on the use of key words in exchanges), those communiqués are sent in real time to a central computer system run by the NSA; round-the-clock shifts of American, British, Australian, Canadian, and New Zealand analysts pour over them in search of . . . what?
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"
ReplyDeleteThe fact that Republicans such as Sununu and Barr are truly shocked should give all,regardless of political persuasion, pause. Whether there is legal wiggle room to 'interpret' avoids the real issue- Given FISA's allowance for warrantless searches while an application for warrant is in process, why on earth was the White House not simply following that simple proceedure?
Glenn,
ReplyDeleteI'll ask again:
Why must a " foreign power" be interpreted only a sovereign nation-state when international law accords certain non-state actors in some circumstances - typically armed guerilla movements - rights of belligerency ?
I'll have to add, for those here who believe that captured terrorists should be granted P.O.W. status, how are they then *not* part of a foreign power at war with the United States ?
The right wing attempts to justify this brazen violation of federal law are as predictable as they are pathetic. Whatever authority the executive branch may have to conduct warrantless searches in the absence of a specific controlling federal statute is completely irrelevant to this situation, where there is such a statute. Thus the Bush administration's only argument is that the FISA is unconstitutional to the extent that it interferes with the president's supposed plenary power to prosecute a war -- an undeclared war mind you -- in his role as commander and chief. That's why they're not making an explicit legal argument on the matter: because explicit fascism doesn't sell too well in America. Not yet anyway.
ReplyDeleteWhy doesn't Bush get a FISA warrant? According to FISA a warrant is only required if BOTH ends of the conversation are on US soil.
ReplyDeleteAnd, um, that predates Bush.
Glen, question for you. The 1802 exception reads as follows:
ReplyDelete(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
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title;
My question is with respect to this requirement to satisfy the exception:
"(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;"
Correct me if I am wrong, but does this not mean that wiretapping U.S. citizens is automatically outside of the 1802 exception?
I read (A), (B) and (C) as all required to meet the 1802 exception, is that not the case?
If so, you don't actually need to worry about 1802(a)(1) - (4)to knock down this silly argument.
Syl and Glen
ReplyDeleteIn addition to the things like naming in advance the place or places to be used by the agent of the foreign power or foreign power, which is a bit difficult for roving cell phones and constantly changing cell phones, ip addresses in the case of email, computer locations in the case of terrorists moving from library to library, etc etc.
The FISA statute provides that BEFORE the request for a FISA order can go to the court it has to go through a specially created office in the Justice Department. the OFIR something or other. This office was created by the FISA statute and the Attorney General can't make the people their speed up. Depending on who in this special office gets assigned the paperwork, the request can take up to 6 months to get processed and sent to the court for approval.
Some people familiar with how it works for criminal warrants, are falsely assuming that it works just that easily and quickly for a FISA warrant. It doesn't.
G
Mr. Champlain,
ReplyDeleteThe patriot act isn't widely reviled. At least not in the country as a whole. It is supported by a majority of the people in this country. Just not a majority of democrats.
G
Is someone making a list of all the howlers the conservatives have supported in order to prop up their masters in Washington?
ReplyDeleteHaving a crib sheet like that might be helpful when the Dems get back in power either next year or in '08.
On the one hand the ease with which Bush invokes his status as commander in chief for everything he does and how everything now happens because of extraordinary circumstances is stunning. On the other hand, the level of "interpretation" needed to justify his actions re: FISA is laughable.
ReplyDeleteIt'a pathetic state of affairs when the executive branch doesn't even have the patience to go through the rigors of getting FISA warrants which are so regularly waved through. No application was turned down in 2003.
This administration won't submit to review by anyone else. That is the essence of things here. The level of presumption is stunning. Oy.
Glenn,
ReplyDeleteThis whole issue distills nicely into a political power ploy no more and no less.
We may be overlooking that the NYT sat on this news for a year.....which means, that a simple cross referencing of cases brought forward against individuals in the US by the DOJ could reveal just who was spied upon. But considering the failure rate of these cases, I would have to question how effective the whole tomfool illegal nonsense really was.
Unless! Unless the issue was the use of this spying to get political information. This charade was quite possibly known to the former attorney general, the poor performing John Ashcroft.
If a crack can be found showing that this spying was for internal political uses and that anti-terrorism was simply a C.Y.A. device to ceal the real purpose of the spying, then we have Watergate all over again.
Chimpy screwed up badly this time, and I doubt Karl and Daddy can bail him out of this mess.
As for the wingnut contingent, you have to admit that having to lie and distort in order to prop up Chimpy has to be a drag....These creeps have to be wondering "when and where will it end with this goofy Bush?"
Mr. Champlain:
ReplyDeleteI guess in your 5th grade film strip, they didn't cover anything about filibusters and how a minority of just a few can gum up the works.
Republicans don't have 60 votes in their majority, and that's what it takes to bust the filibuster. A majority wanted to pass the Patriot Act. 52 as a matter of fact.
And as to what I was talking about was I thought fairly clearly stated. A majority of citizens in this country support the Patriot Act, they support its passage, and they support the President protecting the country. Your statement that it is reviled is untrue, unless you are only speaking of the self-hating democrat types only.
People talk about how awful the Patriot Act is and how threatening, but they can never name even one single real life example of a real, it happened, problem with its use.
G
Boilerman10,
ReplyDeleteI'm curious. You speak with such derision about the President. Calling him chimpy, etc., and conspiracy theories roll off your tongue faster than a principal speaker at a UFO convention.
So if Chimpy is so chimpy, and he keeps beating your side all the time, then where does that put you on the Chimpy scale of things?
G
Thank you for doing the homework. I've been spreading the word so you should get plenty of hits.
ReplyDeleteZoomie, since syl, G and glb haven't said you're wrong, let me pick up their slack: you're wrong, your commanders were wrong. You could have intercepted any damn signal you wanted.... OK, not really, I'm messing with you. Hmmm, why aren't they challenging you, anyway?
ReplyDeleteAnonymous "G" and Anonymous "glb",
Wait, are you both talking about the President's ability to spy on US citizens here? Because that's what many who say Bush broke the law, and proudly admitted it on radio, are discussing.
Your saying "The Constitution says this" isn't enough to convince me anymore. Show me what you mean. You already think I miss the point, perhaps you have made it clearly, but if you're feeling charitable, break it down.
"Congress can pass laws that give the President even more power in this area than he has straight from the constitution, but congress can NOT pass a law that impugnes authority granted the President directly from the constitution itself."
No, Congress can and has done both, and the Supreme Court has both upheld and struck down both kinds of laws, depending on their constitutionality.
I'll defer to the multiple Supreme Court minds who agree with me. As US District judge Victor Marrero's opinion below cites: "Recently [in 2004 -ed.], for example, in addressing the reach of the President's authority to combat terrorism, the Supreme Court declared: 'We have long... made clear that a state of war is not a blank check for the President when it comes to the rights of the nation's citizens.' ...In another prominent case in point [in 1934 -ed.] the Court remarked: '[E]ven the war power does not remove constitutional limitations safeguarding essential liberties.'"
Congress can certainly pass a bill on the President's power to spy on US citizens, and if it did, and it has (and a President signed it into law), the courts won't necessarily strike it down, and there are laws they haven't, after review.
I'm a little confused as to, if the Constitution explicitly states (and syl has graciously provided the text above) that "no Warrants shall be issued, but upon probable cause...", how this constitutes inherent search power that can't be limited. It says right there that it's limited; in fact, a search is not allowed until it's limited! How do you read it? Article II is rather limited in scope and doesn't say anything about surveillance.
(my link above was cut off, though you could have reached it via the Billmon article:
http://www.nysd.uscourts.gov/rulings/
04CV2614_Opinion_092904.pdf
Simply remove the line return.)
1801;(2) "a faction of a foreign nation or nations, not substantially composed of United States persons;"
ReplyDeleteTHIS COVERS AL QAEDA.
No, in fact, it doesn't. That's why there's an 1801 (4).
If your interpretation were correct, the inclusion of 1801 (4) would be absurd.
Interesting, the bogus legal arguments made above that the President can ignore the Bill of Rights, and apparently any other law he wishes, when using national security as the grounds to do so.
ReplyDeleteEvidently, to some, the existence of some exceptions to the rule means that the rule simply doesn't apply. Honestly, the crap posted here in defense of the indefensible reminds me of nothing so much as the bogus legal arguments put forth by tax evaders.
I would imagine that a few folks are in for some seriously shaken world views when this whole thing plays out. And all I can say is, thank God nutcase Federalist Society types are actually few and far between.
Aaron,
ReplyDeleteWell said. Basically, under the "legal theory" being promulgated here, the President, and by extension the entire Executive Branch is immune to the Fourth Amendment's stipulations against unreasonable searches and seizures and requirements for warrants.
Now, I'll admit I'm no legal scholar. But as the Fourth Amendment applies specifically to law enforcement functions (which, at the federal level, are found under the Executive), I don't think you have to be a legal scholar to see that the argument is patently absurd. Which makes me wonder just how close to the bottom of your class you have to be to be a modern-day right wing legal eagle.
Mr. Champlain (and Johnathan)
ReplyDeleteMr. Champlain Says:
No, Congress can and has done both, and the Supreme Court has both upheld and struck down both kinds of laws, depending on their constitutionality.
I'm afraid you are wrong. Since you say congress does this, please provide an example of a law that reduces or attempts to take away a power of another branch of government that is granted directly in the constitution itself? But it isn't me you're arguing with. I've already provided the quotes from Federal Appellate Court cases complete with citations to where those quotes can be verified, and every single Appellate Court that has considered the issued has ruled the president has an inherent constitutional power to conduct warrantless surveillance both inside and outside the USA, and congress may not limit that power. This is what the Federal Appellate Courts have said. Check it out. Take the cites and look them up, then read the quotes I've given for yourself. You only cite in return a district court case (Appellate Courts Overrule District Courts) that doesn't even deal with the specific issue of the President's constitutional power to conduct warrantless searches in national security matters. Yet there are as I have already cited in my original post numerous federal Appellate Court cases that specifically identify that this power of the President exists, and explicitly state that this power can not be limited by Congress.
The power of the President to conduct warrantless searches in national security matters may someday in an appropriate case more clearly defined by the Supreme Court in a kind of balancing test that the Supreme Court does all the time when balancing constitutional powers of government against constitutional rights of citizens. However, to date the Supreme Court nor any other federal court has done this, and there are no proscribed limits from the courts that yet exist.
As I've previously posted again complete with case citations so you can look them up yourself, the Supreme Court has conducted balancing tests in many other areas of the law with regard to the government's right to conduct searches without any warrant at all and searches not only without a warrant but without even a suspicion of wrong doing (much less no probable cause to believe there was wrong doing), and in well over 20 areas the Supreme Court has upheld the right of government to conduct warrantless and even suspicion less searches.
You can be stopped in your boat on coastal waters and searched, your persons searched and the boat itself. No warrant, no probable cause, not even an suspicion of wrong doing. Police can setup traffic stops and pull people over and check drivers licenses and check for drunk drivers, these searches are legal and done without a warrant and without even a suspicion that the law has been violated. Regulatory agencies can come into a business and search its premises, confiscate its books and records, etc. all without a warrant of any kind whatsoever. People can be arrested without a warrant for any felony the officer believes he saw the arrestee commit without a warrant, and that person can be searched and anything illegal found on his person can be used as evidence even though there was no warrant to search the person (this is true even if the officer was wrong in believing he saw a felony committed by that person). That same person who has now been arrested and searched without a warrant can be held in jail for up to 48 hours before having to appear before any judge. All this is done without a warrant of any kind. Many of these things I just described (and there are plenty more) are done without warrants and they are far greater intrusions on a person's liberty than is a wiretap. All of them are constitutional and do not violated the 4th amendment.
Thare aren't any Supreme Court minds or even Appellate Court minds that agree with you, and neither does the judge in the district court case you cite because that case doesn't deal with national security based surveillance powers or FISA.
Your reading of the 4th amendment is incorrect. I'll give you the correct reading, not that your likely to pay attention.
The 4th amendment is in two parts. The first part says that people are protected from unreasonable searches and seizures. It does NOT say the government has to have a warrant to conduct a search that is reasonable in the circumstances. The second part says that if the government is going to rely on a warrant to justify or prove its actions are reasonable then that warrant must be based on probable cause.
I'l close with this. Mr. Greenwald is a lawyer, if he found the definitions I've given you and the case cites to be wrong or lies or the above is incorrect, certainly he would jump in and correct me. He hasn't. There is a reason for this. Mr. Greenwald knows I'm correct. He just doesn't want to admit it.
Gary
Did National Review Online also commit this error?
ReplyDeletehttp://corner.nationalreview.com/05_12_11_corner-archive.asp#084896
"The Foreign Intelligence Security Act permits the government to monitor foreign communications, even if they are with U.S. citizens -- 50 USC 1801, et seq. A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power."
Anonymous said...
ReplyDeleteThe power of the President to conduct warrantless searches in national security matters may someday in an appropriate case more clearly defined by the Supreme Court in a kind of balancing test that the Supreme Court does all the time when balancing constitutional powers of government against constitutional rights of citizens.
You don't have to wait.
U.S. v. U.S. District Court, 407 US 297
Game, set, match.
I find it utterly fascinating that "Anonymous" thinks that Congress has the power to limit, not just expand, the rights the Constitution affords private citizens, but only the power to expand the power of the President.
Truly a novel (and convenient) legal theory.
CathieFromCanada said:
ReplyDelete"They wanted this warrantless eavesdropping authority because no judge would ever issue a warrant for the people they wanted to monitor, like ...."
That is the key to this entire exercise, that is the sole reason for going around the law.
It has nothing to do with whether we are at war or not.
This is simply because the Bush cabal wants to monitor certain people that they would not otherwise get a warrant for. That is it! Period. All the other stuff is BS.
Gary,
ReplyDeleteEven though my name isn't Mr. Champlain (nor is it "Johnathan"), I'll reply to your reply to me.
Concessions! Two off-topic concessions (and 1/2 of a topical), but they're here and hot off the press!
First, you're calling my bluff: it's just a gut feeling of mine that Congress has passed laws restricting the executive branch on 4th amendment issues. The PATRIOT Act is certainly a case where Congress felt a need to expand the executive branch's powers. But if you say the power is inherently unrestricted, then why pass the PATRIOT Act?
Second, OK, I see your point regarding reasonable searching. No matter my opinion regarding courts' definition of public display required for searching, or definition of what constitutes consent to search, I agree that these searches are warrantless. They're defined as reasonable searches and seizures.
However! All of the cases you cite, where police were searching cars, etc., were instances (however negatively one may feel about the practices) of searches involving either probable cause, public display, consent to search, or searches approved via warrant. I might be missing something, but even a quick look at "fourthamendment.com" tells me I'm close to the mark. You mention arrests without warrant, which actually technically fall under detention. However one may feel about the practice, eventually the police need to bring charges and an arrest warrant against the detainee.
But it's not what we're talking about here, because Bush's are cases where he authorized interception of private communications from the US, from (likely) at least a few US citizens. You haven't mentioned US citizens.
Further, admittedly, the case I cited was talking about 1st Amendment issues within the context of the 4th Amendment, as best I can tell. But it was also one that specifically cited at least 2 Supreme Court rulings on the subject of warrantless searches under national security issues. I'm not sure why you say those rulings are not about what they explicitly state they are about. That makes no sense to me.
And you're telling me "your not likely to pay attention." Thanks. At least I hope we can agree you're wrong about that!
USC 1801.a.1-2 & 4-6 clearly describe Al Qaeda to a "T", AQ is a foreign power. USC1801.b.2.a-e would clearly define a US person making phone calls and emails to and from AQ persons an "agent of a foreign power" and USC 1811 allows for the warrantless surveillance in 15 day increments in circumstances you have not shown to be unmet.
ReplyDeleteYou write:
"Under Section(a), subsections (1)-(3) essentially refer to foreign governments or groups expressly controlled by a foreign government."
Well yes, if you ignore what the actual statue says:
"(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments; "
Granted the once cogovernemntal status AQ held in Afghanistan with the Taliban, and to which it continues to pretend through is insurgency there, what part of this description do imagine they do not satisfy?
Yours, TDP, ml, msl, & pfpp
Mr. Anonymous says:
ReplyDeleteMr. Champlain Says:
No, Congress can and has done both, and the Supreme Court has both upheld and struck down both kinds of laws, depending on their constitutionality.
Not that it's a big deal, but Mr. Champlain did not say that (thus negating the need for Mr. Champlain to meet Mr. Anonymous' subsequent challenges).
It just makes Mr. Champlain ponder what other "facts" Mr. Anonymous might have spaced, in his Yoo/Gonzalez-like interpretation of American jurisprudence.
Isn't this argument now OVER given that even George Bush himself admits that they had to go OUTSIDE of FISA and look for authority elsewhere to do these warrantless searches precisely becasue FISA so plainly bars them?
ReplyDeleteFor those of you wanting to argue that this surveillance can be fit into the parameters of FISA, feel free to use the comments section here for the next month if you want arguing that, but isn't it a bit embarrassing to continue with this line of reasoning now that even your own leader and person whose actions you`re defending has said that it's not true?
Mr. Greenwald, I'm not sure anyone is arguing that FISA justifies all the warrantless searches. Mostly the discussion has been about the President's inherent constitutional powers outside of FISA to conduct these searches.
ReplyDeleteGary
glenn: Isn't this argument now OVER given that even George Bush himself admits that they had to go OUTSIDE of FISA and look for authority elsewhere to do these warrantless searches precisely becasue FISA so plainly bars them?
ReplyDeleteExactly! It was nothing but trash-talk. You can see them moving the goal-posts in this very thread. I mean, check out "Gary" at 7:20 PM...
Mr. Greenwald, I'm not sure anyone is arguing that FISA justifies all the warrantless searches. Mostly the discussion has been about the President's inherent constitutional powers outside of FISA to conduct these searches.
ReplyDeleteThe vast majority of the last 10-15 comments or so concerned whether FISA authorized this warrantless surveillance.
Having just looked at those comments, I do want to say that between blogging here, doing the research behind the posts I've been writing, answering other people's posts on their blogs which reply to my posts here, and various e-mail correspondence on this topic, I haven't been able to follow carefully the last 50 comments or so in this thread.
I've seen you suggest that because I haven't responded to particular arguments it must mean that I agree with them or have no answer to them, and I just want you to realize that that is not a fair inference to draw.
There is a new post from this morning about the Constitutional/inherent authority argument, and the Comments section there is much more manageable than this one. If you think there is an argument that is unanswerable on that topic, please post it in Comments in that thread and I'll be happy to reply.
Mr. Greenwald:
ReplyDeleteYes fair enough. It is easy to get to busy to respond to everything. That's been happening to me today, and will likely continue for a couple of days.
I'll look at your new post and I'm sure I'll have a comment of some kind in the next day or two. That post will likely take care of responses to the last couple of messages here to me and to which I have not yet responded. Apologies to Aaron, Johnathan, et al for getting some names confused in my last message.
I re-looked at the posts after reading your last post and I hadn't realized how much recent FISA statute activity there was.
Gary
Brilliant analysis. The Bush administration has too long behaved like the Zionists who control the legislature, executive and the press.
ReplyDelete"[The Bush Administration] is insisting that it has the power to eavesdrop on American citizens without a warrant even though this Congressional statute bars it from doing so."
ReplyDeleteQuick question, not having had time to completely read FISA. Maybe someone can answer this question for me. Does FISA expressly bar the president from warrantless eavesdropping on foreign communications except as permitted by FISA? I ask, because in the absence of express statutory language prohibiting all warrantless surveillance not permitted by FISA, such warrantless wire-taps could arguably fall within one of the jurisprudential exceptions to the Fourth Amendment's warrant requirement. In other words, government agents do not have to be given statutory authority to conduct warrantless searches--in the absence of an EXPRESS statutory prohibition against a warrantless search in a particular, specific circumstance, such power could arguably exist under Fourth Amendment jurisprudence. Restated again, the Fourth Amendment delineates the outer boundary of the government's power of intrusion into our lives. If a statute doesn't prohibit a specific type of warrantless-intrusion, then we have to look to the Fourth Amendment. If the Fourth Amendment doesn't prohibit the warrantless-intrusion, then the warrantless-intrusion is permissible.
JJ - when you say:
ReplyDelete"Technical intelligence gathered from an organization defined in 18 U.S.C. § 1801(a)(4) is entirely permissible unless it is spoken communication coming from the property of a § 1801(a)(1)-(3) organization"
I think you're pretty badly parsing 50 U.S.C. § 1802(a)(1)(A)(ii).
The phrase "other than the spoken communications of individuals" seems clearly separated by commas from the remainder of the clause--the phrase in the commas is the exception, not everything following the first comma! Otherwise there would be no comma following "individuals". But there is, which tells you something.
There still remains the question of how much power the executive does have independent of any specific authorization. That is contained in the rulings of the various courts, and I haven't seen one yet which agrees the president has unlimited power. Sure, they're not granting him such power, but that doesn't mean we can assume it's unlimited. Indeed, that Court of Review passage you cited said:
"It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it."
So, the president's authority does turn out to have boundaries, which need to be determined. You can claim FISA violates those boundaries, but on what specific grounds would you make that claim?
You can try to use the Wiretapping Act to make a claim for expansive powers, but you haven't addressed the relevant 1972 ruling which seems to take care of that issue. (U.S. vs. U.S. etc.)
The only other avenue is the one Gonzalez seems to be taking, that is, trying to use the Hamdi decision to prove the president has expansive powers and can now use them. That seems unlikely to either be correct or to succeed. I guess time will tell.
Hard to believe that Bush couldn't find some Judge he has in his pockets to ok the wiretaps after approval, which despite all arguments is the get out of jail card the Congress gave the asshole-and he didn't take it?
ReplyDeleteIt had to be so egregious that no one could bring himeself or herself to belly up to the bar and take the heat for it.
I wonder if it was prosecutor Fitzgerald he and Dick were listening in on.
Does FISA expressly bar the president from warrantless eavesdropping on foreign communications except as permitted by FISA?
ReplyDeleteYes - section 1809 provides: "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute."
As far as I can see, this whole thread simply illustrates what a polarizing issue this is! I am not a lawyer or a legal scholar, instead, I'm a nursing student. In the medical field, fortunately, we don't often need to worry about getting warrants to get the information needed to treat the problem! If al Queada were a cancer, it would simply be surgically excised and then follow up with radiation and/or chemotherapy to treat the cancer! Terrorism is a social cancer in the body of the whole worlds society, not just ours, or the Islamofascists(**Note, I am NOT lumping all Muslims with the Islamofascists, by the way, they are merely a small % of the followers of Islam) It doesn't matter if they are Islamic terrorists, ELF, Red Army Faction, Bader-Meinhoff, UNITA or even the OLD term for terrorists from the late 19th century, Anarchists. They are a cancer on all of our societies and they need to becised. Unfortunately to combat them we need accurate information, and that is the reality of the situation. That said, I don't care if the Federal Government monitors any overseas calls or emails I make or send, I have no secrets or skeletons in MY closet.
ReplyDeleteI hate it when I think faster than my fingers can type! That should be excised, not becised($%@# dislexic fingers!)
ReplyDeleteAnthony, John Kerry and many other Yale-es are members of Skull and Bones.
ReplyDeleteGary
The U.S. Foreign Intelligence Surveillance Court -- the secretive judicial system that handles classified intelligence cases -- wrote in a declassified opinion that the court has long held "that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." This includes NSA's program to intercept communications between al Qaeda suspects and persons in this country. In a 2002 opinion about the constitutionality of the Foreign Intelligence Surveillance Act (FISA) and the USA Patriot Act, the court wrote: "We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."
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