In June, 2002, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA. Specifically, DeWine's legislation proposed:
to amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion. . . .
In other words, DeWine's bill, had it become law, would have eliminated the "probable cause" barrier (at least for non-U.S. persons) which the Administration is now pointing to as the reason why it had to circumvent FISA.
During that time, the Administration was asked to advise Congress as to its position on this proposed amendment to loosen the standard for obtaining FISA warrants, and in response, they submitted a Statement from James A. Baker, the Justice Department lawyer who oversees that DoJ's Office of Intelligence Policy and Review, which is the group that "prepares and presents all applications for electronic surveillance and physical search under the Act to the Foreign Intelligence Surveillance Court (FISA Court or Court)." If anyone would be familiar with problems in obtaining FISA warrants, it would be Baker.
And yet, look at what Baker said in his Statement. He began by effusively praising the Patriot Act on the ground that the 72-hour window provided by the Patriot Act had given the Administration the speed and flexibility it needed in order to engage in eavesdropping:
The reforms in those measures (the PATRIOT Act) have affected every single application made by the Department for electronic surveillance or physical search of suspected terrorists and have enabled the government to become quicker, more flexible, and more focused in going "up" on those suspected terrorists in the United States.
One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISA's pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats. Again, we are grateful for the tools Congress provided us last fall for the fight against terrorism. Thank you.
And then, regarding DeWine's specific proposal to lower the evidentiary standard required for a FISA warrant, Baker said that:
The Department of Justice has been studying Sen. DeWine's proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it.
So, in June, 2002, the Administration refused to support elimination of the very barrier ("probable cause") which Gen. Hayden claimed yesterday necessitated the circumvention of FISA. In doing so, the Administration identified two independent reasons for opposing this amendment. One reason was that the Justice Department was not aware of any problems which the Administration was having in getting the warrants it needed under FISA:
The practical concern involves an assessment of whether the current "probable cause" standard has hamstrung our ability to use FISA surveillance to protect our nation. We have been aggressive in seeking FISA warrants and, thanks to Congress's passage of the USA PATRIOT Act, we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require, and we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations. If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.
So as of June, 2002 -- many months after the FISA bypass program was ordered -- the DoJ official who was responsible for overseeing the FISA warrant program was not aware (at least when he submitted this Statement) of any difficulties in obtaining warrants under the FISA "probable cause" standard, and for that reason, the Administration would not even support DeWine's amendment. If - as the Administration is now claiming - they had such significant difficulties obtaining the warrants they wanted for eavesdropping that they had to go outside of FISA, surely Baker - who was in charge of obtaining those warrants - would have been aware of them. And, if the Administration was really having the problems under FISA, they would have supported DeWine's Amendment. But they didn't.
The second concern the Administration expressed with DeWine's amendment was that it was quite possibly unconstitutional:
The Department's Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a "reasonable suspicion" standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a "reasonable suspicion" standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions.
By that time, the Administration had already been engaging in eavesdropping outside of the parameters of FISA, and yet the DoJ itself was expressing serious doubts about the constitutionality of that eavesdropping and even warned that engaging in it might harm national security because it would jeopardize prosecutions against terrorists. Put another way, the DoJ was concerned that it might be unconstitutional to eavesdrop with a lower standard than probable cause even as the Administration was doing exactly that.
Two other points to note about this failed DeWine Amendment that are extremely important:
(1) Congress refused to enact the DeWine Amendment and thus refused to lower the FISA standard from "probable cause" to "reasonable suspicion." It is the height of absurdity for the Administration to now suggest that Congress actually approved of this change and gave it authorization to do just that -- when Congress obviously had no idea it was being done and refused to pass that change into law when it had the chance.
(2) DeWine's amendment would have lowered the standard for obtaining a FISA warrant only for non-U.S. persons -- whereas for "U.S. persons," the standard would have continued to be "probable cause." And, DeWine's amendment would not have eliminated judicial oversight, since the Administration still would have needed approval of the FISA court for these warrants.
That means that, in 2 different respects, DeWine's FISA amendment was much, much less draconian than what the Administration was already secretly doing (i.e., lowering the evidentiary standard but (i) eliminating judicial oversight, and (ii) applying these changes not just to non-U.S. persons but also to U.S. persons). Thus, Congress refused to approve -- and the DoJ even refused to endorse -- a program much less extreme and draconian than the Administration's secret FISA bypass program.
This has extremely significant implications for the Administration's claims made yesterday through Gen. Hayden as to why it was necessary to bypass FISA. The Administration's claim that the "probable cause" component of FISA was preventing it from engaging in the eavesdropping it needed is the opposite of what it told Congress when refusing to support the DeWine Amendment. And its claim that Congress knew of and approved of its FISA-bypassing eavesdrop program is plainly negated by the fact that the same Congress was debating whether such changes should be effectuated and then refused to approve much less extreme changes to FISA than what the Administration secretly implemented on its own (and which it now claims Congress authorized).
The Administration is stuck with the excuse given by Gen. Hayden yesterday as to why it had to eavesdrop outside of FISA, but that excuse is plainly contradicted by these events and by the Administration's own statements at the time.
Well there is a *conservative commentator* who claimed he was not suitably convinced by some of the legal reasoning I put forth regarding the statutory construction questions of FISA - But my reply was: "How could I make the arguments MORE Convincing than Bush Adminitration has already done so for me!"
ReplyDeleteThey have argued, on behalf of the bAmin, against the *implied statutory construction* to permit a broad interpretation absent a clear statutory language change.
And here you point how they specifically were denied a change to amend that provision of *Probable cause* - that very language - and argued about it's problemactic Consitutionality months after they were already subverting it.
Thanks for the update!!
Damn. Just damn.
ReplyDeleteAmazing work.
That the Administration broke the law, and is now lying, is crystal clear. The only question remaining for me is the Administration's motive. While motive is irrelevant to the program's legality, it's still important to find out the last piece of the puzzle.
ReplyDeleteGlenn suggests in this, and the previous, post that the Administration must have done this specifically because it wanted to spy on non-GWOT related communications. Perhaps. It might also be a case of hubris. This would be the very same hubris that led to ignoring the State Dep't's post-invasion Iraq reconstruction plan or the unnecessary belittling of our European allies, etc.
The fact that Rove & Co. are actually using the NSA issue as a WEAPON against the Democrats politically, rather than taking a defensive posture, leads one to believe that it's hubris. If it was the former motive, as Glenn implies, then Rove wins the prize for having the biggest set of balls in the solar system. He's risking an all-out collapse of the GOP if it's subsequently uncovered that the program was purposely carried out for spying on non-GWOT communications.
This is an incredible scoop! Kudos for the find and the great analysis!
ReplyDeleteThis is just mind bending in its implications. How long until our lazy media picks up on this?
I have nothing to add, other than thanks for doing more substanative reporting on this than every major news outlet combined.
ReplyDeleteGreat catch, Glen. Is this James Baker III - Bush family consigliere? Probably so. I remember him signing off on other Justice Department doings early on in W's first term. I can't imagine he's of any use at this point, though. It'll be interesting to see if any reporters can get him to comment.
ReplyDeleteDoubt it.
I thought the NSA could listen in on any international communication it wanted to without warrant. Doesn't FISA only apply when a citizen is involved? Therefore, the change in the law proposed by DeWine wouldn't matter since it did not lower the standard for citizens. Or am I remembering this incorrectly?
ReplyDeleteNevermind, I forgot FISA applies to intelligence gathered on foreign entities domestically.
ReplyDeleteAh, to still live in a country where mere pointwise factual refutation of an argument were enough to change policy.
ReplyDeleteBut we're now in an age of truthiness....
And the odds of seeing anyone in the traditional media connect these dots? The only thing more frustrating than seeing what we've known all along confirmed, is seeing it go unnoticed as the issue is inexorably morphed from Bush's "Illegal Domestic Spying" to his "Terrorist Surveillance Program."
ReplyDeleteactually, I'm with first-Mike. I'm not sure if this only affects non-citizens that it's such a big deal. It's the intruding on full-on citizens' rights that are the problem.
ReplyDeleteI think.
kevin.
I'm not sure if this only affects non-citizens that it's such a big deal. It's the intruding on full-on citizens' rights that are the problem.
ReplyDeleteYou're missing the point. The Administration said it did not support DeWine's Amendment to eliminate "probable cause" as a requirement for getting a FISA warrant and replace it with "reasonable suspicion", and they refused to support it for two reasons:
(1) The Administration said it was not aware of any problems it was having meeting the "probable cause" standard, and that fact - combined with the 72-hour window provided by the Patriot Act - meant that it saw no need for FISA to be changed because they were able to get all the eavesdropping warrants they wanted under FISA; and,
(2) The Administration said the DeWine Amendment was quite possibly unconstitutional because the Fourth Amendment bars eavesdropping in the absence of "probable cause."
Point (1) -- which the Administration argued in 2002 -- is the exact opposite of what Gen. Hayden said yesterday when explaining why the Administration had to eavesdrop outside of FISA (i.e., he said that they couldn't do all the eavesdropping they wanted under FISA because they can't always prove "probable cause" to get the warrants they want).
As for point (2) - if it's unconstitutional to eavesdrop with no probable cause on non-citizens, then it's obviously unconstitutional to eavesdrop with no probable cause on citizens. The point here is that the Administration had serious doubts about the constitutionality of DeWine's much less draconian eavesdropping proposal (less draconian because it at least still had judicial oversight), and yet they went and did their more draconian eavesdropping anyway.
This also gives the lie to the Administration's claim that Congress approved of their warrantless eavesdropping program, since Congress refused to pass the DeWine Amendment which would have watered down FISA far, far less than the Administration's secret program did.
The important point is that the Administration, FOR THE FIRST TIME YESTERDAY, gave an explanation as to why it couldn't eavesdrop within the FISA structure, and yet, that explanation is squarely, directly, irreconcilably at odds with what they said in 2002.
Marc - I agree those numbers are odd and we have no explanation for them, though we should.
ReplyDeleteBut, as has been pointed out before, the rejections and modifications by the FISA court in 2003 and 2004 weren't the reason for the Administration's decision to bypass FISA, since that decision was made in 2001 when the FISA court was rubber-stamping everything in sight.
I read Hayden's remarks and I picked up a hint of an argument that he did not really make explicitly. It was his use of the words "hot pursuit" and his discussion of FISA's 72-hour provision that prompted this thought. ("Hot pursuit" is a term used by courts to make exceptions to the 4th Amendment's warrant requirement in circumstances where a warrant can't be obtained because the police are chasing a suspect).
ReplyDeleteI think what Hayden was suggesting is that there is something about this particluar NSA program that requires that the phone line be tapped immediately after NSA receives whatever info it is that they use to decide there is a "reasonable basis" to believe that the line is associated with a terrorist. Hayden seemed to be saying that the 72-hour window provided by FISA doesn't help them because they have to get AG approval before they can take advantage of that, and to get AG approval they have to put together a package of information and the AG has to review it. I think he was implying that they don't even have time to go to the AG because the intelligence they have is only good for a short time.
That's what I read him to be suggesting, but it's cleary a lame point. FISA could easily be amended to deal with this.
That's what I read him to be suggesting, but it's cleary a lame point. FISA could easily be amended to deal with this.
ReplyDeleteGood point. It's lame for the reason that you said; and because if this were the case, they could have confined their FISA bypass only to that circumstance, rather than bypassing FISA generally for all international calls; and they could have easily explained this once the scandal was disclosed, but they didn't.
I think you're right that Hayden was alluding to that, but I don't believe that's the reason they bypassed FISA.
There are some absolutely fabulous fourth amendment quotes in Boyd v. U.S., 116 U.S. 616 (1886), cited in Weeks v. U.S., 232 U.S. 383 (1914).
ReplyDeleteI really have to wonder what reality these so-called "originalists" come from if they think their state-authoritarian vision is supported by Charles de Secondat, James Madison or Gouvernor Morris.
It's the strongest evidence for the "multiple universe" theory I've yet seen.
Glenn,
ReplyDeleteI suspect that the main dodge of the fourth amendment, as seemed to be crystal clear from Hayden's remarks, was that the administration simply decided what it would deem "unreasonable."
It's as simple as that.
If the administration says the search isn't unreasonable, then they wouldn't need a warrant, ever.
Do you disagree?
Remember, I picked up on it first, or at least, independently.
Damn good job, Mr. Greenwald. I've posted excerpts of your piece on my blog and put a link to your piece.
ReplyDeleteWell done.
Very very nice work!
ReplyDeleteIf the administration says the search isn't unreasonable, then they wouldn't need a warrant, ever.
ReplyDeleteDo you disagree?
I don't think the constitutional/Fourth Amendment issues mattersmuch (at least not as much as the fact that the Administration violated the law). Although I think the 4th Amendment clearly requires warrants for eavesdropping of this sort, the question is a little murky because the Sup. Ct. in 1972 (in Keith) expressly refused to say if it would be constitutional to eavesdrop on international terrorist groups without a warrant (as opposed to domestic groups, where the Gov't needs a warrant). Thus, whether such eavesdropping would be constitutional IF it had been legal is a question where a viable dispute can be created (not terribly viable, but barely so), and the implications even if it is unconstitutional are not that significant (likely all that would happen is that no prosecutions would be permitted based on information obtained that way).
But the issue of law-breaking is not murky or complicated - and entails great consequences. It doesn't matter if the eavesdropping would have been constitutionally permissible because it was, in any event, illegal. And the Administration's explanation for why it engaged in eavesdropping outside of FISA is clearly false.
Having said that, it is important to note that the DoJ itself thought that the eavesdropping proposed by DeWine was of questionable constitutionality. Thus, that would have to mean that the DoJ had at least equal (and actually greater) concerns about the constitutionality of the Administration's secret eavesdropping program (which raises far more significant constitutional questions than DeWine's would have), and yet they went and did it anyway and are now pretending that they clearly had the legal authority to do so.
Glen, you got'em! They're dead in the water based on their own record.
ReplyDeleteInterestingly, they knew all this before the current round of lies, and they told us the lies anyway. What kinds of things must they be trying to cover-up?
Wow! How in the world is this the first time we're hearing about this? Do the reporters at the major news outlets have their heads up their asses?
ReplyDeleteGreat work. This is a very important find.
thanks for this and previous educational posts.
ReplyDeletemy question:
could we infer from this that the unauthorized intercepts (spying) began after june, 2002?
pushing further, might it have been involved with the iraq war,
including domestic and international opposition to the war?
would the united nations, german government, or french government be happy to learn their communications were intercepted prior to the march on baghdad in spring, 2003? or would they have expected this of the u.s. in any event?
and what about democratic politicians in the u.s.?
or the substantila number of americans who actively opposed the war in 2002-2003?
or american or coalition soldiers in iraq?
in any event, if the spying began after june,2002 it certainly was not in immediate presponse to the 9/11 attack in new york.
no one knows about these possibilities yet, i presume. but the opportunites would have been enticing to an authoritarian regime like bush's.
Could the need for a fillibuster of Alito possibly be more apparent? I don't want his first opinion to read:
ReplyDelete"The Fourth Amendment? Fuhgeddaboutit!"
Apparently there IS a difference between Gonzales and Ashcroft.
ReplyDeleteI am stopping my subscription to TIME and the NYT....and I am becoming a subscriber to your BLOG! This is BIG news!! How did they miss this.
ReplyDeleteAlthough the "librul medyea" will never report this because it would require some reading and thinking...how can we get this "out there" so perhaps someone...even if it's Jon Stewart or Steven Colbert reports it???
ReplyDeleteThere never seems to be any trolls on this site. I would like to what the right has to say about this. I can't for the life of me think of anything they could say.
ReplyDeleteYou could watch TV for a year and never hear anything like this.
Awesome work just awesome.
ReplyDeleteI think you're failing to see the Administration's real reason for being against the DeWine ammendment, that if it passed, it would clearly nullify any ability to interpret the post-9-11 Afghanistan authorization as including implicit approval for the new "Terrorism Survaillance Program".
ReplyDeleteIt's pure Bush Admin legal speak - it would certainly cause legal problems for tham were it to pass, but not legal problems defending the expanded use of FISA, but legal use in defending their illegal wiretapping.
would the united nations, german government, or french government be happy to learn their communications were intercepted prior to the march on baghdad in spring, 2003? or would they have expected this of the u.s. in any event?
ReplyDeleteThe Guardian had a story in the run-up to the Iraq invasion about the US spying on foreign diplomats at the UN in NYC.
Curiously this story was never repeated in the US media.
And there's the NSA intercepts that came up during the Bolton confirmation hearings.
I suspect we have a few more bombshells to come. As Josh Marshall has said, check the sprinklers at the Reichstag.....
I just want to say, thank you!
ReplyDeleteWhy didn't the NYT cover the failed senate bill and DOJ opinion in their original reporting on the subject? They had more than a year to investigate the reason the administration sidestepped FISA.
ReplyDeleteThey were either sloppy or the facts the NYT was aware of didn't allow them to predict Hayden's defense.
I think the dodge here that Hayden was alluding too and josh narins picked up on is that none of these warrantless searches were subject to the FISA and are permissible under a good faith interpretation of existing fourth amendment jurisprudence as either being conducted under exigent circumstances or because there was no reasonable expectation of privacy in the communications. I would agree with Glenn that this does not excuse violating the FISA, but actually FISA, by definition, only applies to "electronic survellience" which would otherwise require a warrant under the fourth amendment. So the argument is we oppose the DeWine amendment because we do not think it is constituional to lower the standard for issuing warrants, and we don't have a problem with getting warrants under FISA. The warrantless survellience does not fall under FISA because the fourth amendment does not require warrants for all searches in particular not those conducted under exigent circumstances in for communications in which there is no reasonable expectation of privacy.
ReplyDeleteHere is the defintion of electronic survellience from FISA:
Electronic surveillance” means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
let me persist in my comment above about timing.
ReplyDeleteglenn greenwald says the extra-legal surveillance began in 2001.
glenn's article says that the dewine ammendment was offered to the white house in june, 2002 but the white house declined (opposed it in the congress).
news reports, as i recall, said that when the white house/bush administration went to get the department of justice's approval for the program, it was during a time when attorney general ashcroft was having gall bladder surgery which was march of 2004.
does that mean that the administration waited from 2001 to 2004 to get an authorization from doj?
of an illegal program?
why bother with getting doj approval in 2004?
why not just keep on keeping on?
so what's going on?
what would the administation begin the spying in 2001, turn down a chance to make it "more legal" in summer, 2002 and then wait until spring, 2004 to get the doj to sign off on it?
Great "cutting edge" post!
ReplyDeleteCheck mate
ReplyDeleteIf the next terrorist attack in the USA is the work of an angry McViegh like former Iraq War vet... will the president have the authority to listen in on the conversations of all servicemen and their families in order to prevent other attacks by likeminded individuals?
ReplyDeleteIf the next terrorist attack in the USA is the work of an angry McViegh like former Iraq War vet... will the president have the authority to listen in on the conversations of all servicemen and their families in order to prevent other attacks by likeminded individuals?
ReplyDeleteAren't we rushing to euphoria here? As I understand this story, it only confirms what we already knew - Bush's own DOJ was against this. Not that this fact isn't hugely significant - I wish the dems and MSM would hammer this message whenever TurdBlossom trots out his "some Democrats" strawmen.
ReplyDeleteNevertheless, great work Glenn!
It's a loverly whirrled to live in, these days.
ReplyDeleteWelcome to the Fourth Reich
Thanks for your work. Sent here by firedoglake and glad I came!
ReplyDeleteNow, how do we get this printed on the front page of the NYT or one of the other major rags?
My understanding of Gen Hayden was that he thought the 4th Amendment's "probably cause" barrier was only there for "unreasonable searches". He thinks the domestic spying program was an issue of "reasonable" searches" so the 4th Amendment doesn't apply ...
ReplyDeletehere is more from Gen. Hayden:
ReplyDeletehttp://www.machination.org/2006/01/general_hayden_at_npc.php
Thank you Glenn for this post.
ReplyDeleteThis is what investigative journalism is supposed to look like...
Hey Glenn -- great work, but you know it's never done. Here's Gonzales' speech from today (the same one at which the kids at GWU turned their backs on, wore hoods and held up the Franklin quote):
ReplyDeletehttp://www.fas.org/irp/news/2006/01/ag012406.html
Is he confusing not only the issue of probable cause and reasonableness, but administrative and particular searches?
Imagine, if yu will, that US citizens begin to receive unsolicited overseas calls of ME origin. Thousands of calls , millions of 'em.....omigod.
ReplyDeleteAnonymous asked:
ReplyDeleteGreat catch, Glen. Is this James Baker III - Bush family consigliere? Probably so. I remember him signing off on other Justice Department doings early on in W's first term.
Glenn was not confused, although other bloggers have been. James A. Baker of the Office of Intelligence Protocol and Review is no relation to James A. Baker III, as stated, "Bush family consigliere" -- who has held no formal position in government since 1992. He did argue Bush v. Gore as a private attorney.
This James A. Baker is a onetime career prosecutor for Justice who has been with the OIPR since 1996, and argued on behalf of the Clinton administration previously. He's been a point man on FISA for ten whole years, in other words. There could hardly be a better expert in the executive branch.
Great work Glenn. Keep it up.
ReplyDeleteNow THIS is the kind of stuff that makes blogs so kick ass -- an investigation of the truth that coporate media refuses to do.
ReplyDeleteNow, whether or not it grows legs and proves that, once again, the arguments for spying are patenly false remains to be seen. But you've done your part.
Nicely done ... very, very nicely done.
Where FISA applies, it calls for the executive branch to get court permission before it may listen — permission which can be withheld if a judge is not satisfied that the government has demonstrated "probable cause" that the target is an "agent of a foreign power" (a term of art that covers international terrorist organizations). The NSA, however, is conducting its surveillance on the authority of the president, not the federal judges of the Foreign Intelligence Surveillance Court established by FISA.
ReplyDeleteThe president reiterated two basic arguments in support of the NSA program which have been posited by the Justice Department and administration officials. The first relies on the inherent constitutional authority of the president under Article II of the Constitution. The president is commander-in-chief of the armed forces and the constitutional officer singularly obligated to conduct foreign affairs and protect the American people from external threats. Consequently, federal courts have long recognized the president's inherent authority to conduct monitoring to protect national security — at least when a foreign threat is involved.
Critics argue that the passage of FISA has altered the constitutional field. That contention, however, has two insuperable obstacles. First, the Constitution cannot be altered by a statute — it is the supreme law of the land. This is why (as I argued on Monday), acts of Congress have long been subject to being held invalid if they violate the Constitution or attempt to modify its structure. Presidents used national-security surveillance authority for many years before there ever was a FISA. If presidents had that power in the first place because of Article II, Congress can do nothing to take it away.
Second, in 2002 — even after nearly a quarter century of FISA's operation — the Foreign Intelligence Court of Review (the highest and most specialized court ever to review a FISA case) indicated that presidents maintain inherent constitutional authority despite the terms of FISA. Thus, administration critics are simply wrong when they argue that compliance with FISA is the sine qua non of lawful eavesdropping in the national-security arena.
The other point President Bush emphasized in his Kansas speech concerns the Authorization for the Use of Military Force (AUMF), passed by Congress right after 9/11 and reaffirmed a year later. That enactment is, for all intents and purposes, a declaration of war against al Qaeda, and is sweepingly general in its terms. The president contends that this generality was intentional. As he put it, "Congress gave me authority ... but it didn't prescribe tactics."
In a full-blown war, and against an enemy that is savage, stealthy, and stateless, this is prudent. It affords the executive branch maximum flexibility to counter and outmaneuver al Qaeda without the suggestion that it must return to Congress each time war-fighting innovations are called for by battlefield conditions. It also avoids the illogic of educating the enemy about our methods and our sources of information — an education that would be inexorable in any system that required seeking legislative approval for each individual incident of war-fighting.
Opponents contend that electronic surveillance does not come within the broad terms of the AUMF, which says nothing about eavesdropping. Signals intelligence, however, is a rudimentary component of military operations. Congress cannot tell the president he can deploy force but not monitor the enemy any more than it could tell a pitcher he can throw the ball as long as he doesn't wind up.
More to the point, as President Bush argued, his interpretation of the AUMF finds support in the Supreme Court's 2004 decision in Hamdi v. Rumsfeld. As is the case with electronic surveillance, the AUMF does not explicitly authorize the detention of American citizens as enemy combatants. Yet, in Hamdi, the Court read the AUMF to permit such detentions because they are a fundamental incident of waging war. Penetrating enemy communications — even if they involve Americans — are no less fundamental.
The president presented his defense with great confidence — and with good reason. Not only does he have strong arguments in his favor. It was also worth noting that, though he spent nearly an hour after the speech taking questions from the crowd of 9,000 students and other spectators, there was not a single question about the NSA program.
This "scandal" obviously piques the interest of the media. But what if they throw a scandal and nobody shows up?
Have you ever thought about how the illegal spying might be linked to Sibel Edmunds and what she was reading in her translations?
ReplyDeleteHigh governement officials involved in bad deeds? With Middle Eastern countries? Maybe these things were intercepted by the vast network that Bush Admin set up. Inadvertantly they outed themselves by sending stuff to the translator. Then the courts gagged her. I am still wondering why!!!
they didn't out themselves for christs sake, the NYTimes outed them with a disgruntled ex-employee that was mad he didn't get his 'due' promotion.
ReplyDeleteMr. Greenwald-
ReplyDeleteI enjoy your thoughtful and intelligent (albeit long-winded) insights, but am stunned that you are not seeing the obvious connections of your last three posts. As an admirer, I am compelled to enlighten you:
A person who is 'on the other side', a 'traitor', or 'giving comfort to the enemy', may very well qualify for the standard of 'reasonability' that governs our current monitoring program. Activities of those that administration officials accuse of 'treason' are 'fair game'. You following me?
So, keep working on your research into 'law' and 'precendent' and 'FISA' and 'probable cause' - we will continue enjoy your fruitless dissertations, typically a full day before the rest of your terrorist-comforting brethren. If you REALLY have us cornered, don't be surprised by a mysterious and immediate onset of word-processing difficulties.
I trust you are now adequately educated about this situation. If not, just listen carefully for clicking noises on your phone the next time you call Pizza Hut, or when you call the movie theater for 'Brokeback Mountain' tickets.
Yours,
J. KRL
I wrote an article on the rise in FISA court rejections/modifications in December (Was Bush upset that FISA Court Actually Wanted To Comply With Law?). Since the requests and subsequent orders are all classified, we will not be able to see what the objections from the FIS Court were. I *suspect* that the requests were overly braod without proper justification.
ReplyDeleteConsidering that, in the first 22 years of it's existance the FISA court let all but 2 of over 13,000 pass unmodified. SInce 2001 the FISA court modified 179 -- of which 173 were "substantial modifications."
I suspect that the strategists needed to keep up the flow of requests lest someone notice that the annual report to congress showing the request counts were down amid the W-O-T.
The modified requests could have been the result of sloppiness and arrogance, or they could have been for cases where the administration was already going the warrantless route, and the requests for warrants was a sop to retroactive legality.
Interesting to visit a site here in the liberal cocoon and check out the notes of the Captain’s Review Committee. The topic of “Has the Captain violated the Reasonable Wireless Transmission Act?” was analyzed beautifully. The law could not be clearer: more than 10 messages per hour is prohibited because it clogs the air and causes operators excess work. Although told not to communicate the information to passengers so as to limit panic, a noble wireless operator has informed the Committee that an SOS message has been ordered sent every 3 minutes around the clock in clear violation of the Act. Discussion of asking the Cunard Line to remove the Captain for this clear violation of an important Act passed by the International Atlantic Crossing Board led to the formation of a subcommittee to begin the steps toward removal of the Captain.
ReplyDeleteYes, there was an unfortunate incident with an iceberg on September 11th and yes, conservative passengers continue to bore you with extended discussions of lifeboat stocking and loading procedures. However, you are correct that shipboard life would be unbearable if the rules are not followed.
If one is to have a decent crossing it is important to hold the Captain accountable for any breach of the rules. It is clear that if the social schedule is to be reorganized and meals served on time we need a new Captain with different priorities. This Captain is spending too much time and resources on safety procedures and silly unilateral attempts to contact other ships; time that would be better spent getting passenger activities restored.
Keep up the good work, guys. A recent poll showed that 100% of the passengers were in favor of restoring normal shipboard life. This Captain must go.
Superb work. I have done a story about your story through the Federation of American Scientists' coverage of it.
ReplyDeleteGlenn,
ReplyDeleteI guess I wish I had a "Idiot's Guide to FISA" so I could see when it was supposed to apply. I would imagine it only applies when the Feds need a warrant.
As an "anonymous"(9:55PM) poster mis-said (the one who mentioned my name), what I believe the Gov't did was simply say to itself "We didn't even need a warrant, because these searches were not unreasonable, ergo, we didn't need to go before FISA" The aforementioned "anonymous" called this a "good faith" reading of the 4th Amendment, and emphasizes expectation of privacy and exigent circumstances (neither of which I find at all convincing), while I consider it an ahistorical, novel, and completely ungrounded one.
By the way, the transcript of Hayden's speech can be found at FAS, and if you scroll down to the part where Jonathon Landay of Knight Ridder asks a question (search for Landay) you will see what I mean about Hayden dodging "probable cause" and instead emphasizing "unreasonable".
Notherbob2,
ReplyDeleteIf only people who have something to hide need be afraid, why is that you are anonymous and Mr Greenwald is not?
Now I want you to completely forget that the top counter-terrorism expert in America QUIT IN DISGUST at the way "the Captain" backed off investigating al-Qaeda. He went to become head of Security at the WTC, and died on 9/11.
And whatever you do, don't read the Boyd link I made above. It will disgust you to find out what some people called "Americans" did in response to the Government's unlawful searches, and this anti-Captainic principle of a person being free from prying eyes.
Gee whiz, Mr. Narins, I guess your concern for the protection of the privacy of those who might be “spied upon” by NSA doesn’t extend to blog commenters. I’m just a concerned citizen whose political philosophy has migrated from the right to the center and has become stuck there because the Democrats are so feckless and offer no reasonable alternative to corrupt, overspending Republicans. They pander to their special interests to raise money (which I understand) , but then have no ideas appealing to other than their fundraising base. Oh well, politics was never perfect. Interested parties may email me at notherbob2@aol.com.
ReplyDeleteNorthbob2,
ReplyDeleteApparently you think that our Republic is a sinking ship? Considering what Bush is doing - shredding the constitution - I would tend to agree. But the analogy I would suggest should be as follows. When the captain of the ship is drilling a hole in the hull, its probably time for a new captain, at the very least.
Well...
ReplyDeleteMr. Baker never actually says FISA allows for "the speed and flexibility it (the NSA) needed in order to engage in eavesdropping", nor does he respond to the constitutional questions involved.
Under FISA the surveillance program would in all cases remain subject to the FISA court's discretion, an unknown variable that may or may not limit the president's inherent power. (A constitutional question)
Some methods and tactics used in 2002 might not apply in 2005, hence the ongoing need for the surveillance program and domestic law enforcement to evolve over time (with technology for example). A great example would be infrared equipment.
What is the difference between executive branch war powers and police powers? What is the difference between trying to put together a prosecution under criminal law and putting together signals intelligence in wartime to prosecute the destruction, not arrest and prosecution, of enemy combatants? In the case of al-Queda, we are speaking of definitively illegal combatants re the Geneva Convention. When will the authors of the above comments realize that waging war is not a criminal prosecution, but the use of all means to destroy the enemy and his will to fight?
ReplyDeleteMike,
ReplyDeleteYou bring up a great point. The NSA and FBI are now working together in ways that they were not on 9/10.
The foreign enemy in this case is attempting to blend in with U.S. citizens. For this reason, I would guess that the presidents inherent power allows him to aggregate military intelligence and federal law enforcement activity.
On the military level, we defeat terrorists and terror supporting states overseas. On the domestic level, we track terrorists down and arrest them.
It is also possible that the military may be called upon to engage terrorists within the U.S. at some point, such the post 9/11 plan to shoot down a hijacked airliner.
Well, Mr. Narins, I took your advice (albeit left-handed) and read your link to Boyd. I have to tell you that I really get tired of you right-wing conservatives quoting cases from not just the last century, but the one before that! 1854! They didn’t even have penumbras and emanations then. Or automobiles, jet planes or infra-red devices. You and Clarence Thomas are perhaps interested in such hoary decisions, but we modern progressives regard any SCOTUS decisions prior to the Warren court, when the SCOTUS assumed its full modern stature, as irrelevant. Needless to say, the Boyd case was prior to Miranda. Nuff sed. [sarcasm/humor alert]
ReplyDeleteWhen will the authors of the above comments realize that waging war is not a criminal prosecution, but the use of all means to destroy the enemy and his will to fight?
ReplyDeleteAs soon as Congress declares war, let us know.
Mike,
ReplyDeleteYou have drank the Koolaid. Do we have to get into another real war so that bedwetters know what a real danger to our nation looks like? The British seized D.C. and burned down the White House, the South rebelled against the Republic and divided brother from brother, the Axis powers threatened America on both Oceans, and the cold “war” threatened mutual assured destruction by nuclear weapons. But the bedwetters are ready to shred the constitution because Bush was too incompetent to stop the 9/11 terrorists and now wants absolute power.
My God, you are doing exactly what Usama Bin Laden wants you to do - trashing our constitution so that you can feel “safe.” To paraphrase Ben Franklin, "Those who would sacrifice liberty for a little security deserve neither.” You should renounce your citizenship and move to some “safe” country like China where big daddy government happily takes away it’s citizens freedom in the name of safety.
The Unitary Executive Theory, which all of the Bush apologists are now parroting, is essentially Bush's marching his legions across the Rubicon. Bush is formally declaring our constitution null and void and anointing himself as dictator. He is saying, unlike any other president in history, that he is above the law.
If you believe that this is the government envisioned by our founding fathers, then I expect not a peep from you when President Hillary Clinton decides that all right wingers are unlawful combatants, threats to national security, and traitors to boot, tracks them down through the internet, rounds all of them up, without charges, without access to lawyers, and tries and convicts them without a jury - or judge - after all, who needs judges? - and executes them. It will be fine because as Commander in Chief in a time of war, all means to destroy the “enemy” may be employed. Those in Congress who disagree with this interpretation of the constitution will be reminded that King George II pronounced it so - and they will disappear, never to be heard from again.
Our republic is in grave jeopardy when our own citizenry is too uninformed and gullible to realize their system of government is being flushed down the toilet.
In the case of al-Queda, we are speaking of definitively illegal combatants re the Geneva Convention.
ReplyDeleteAnd also the Taliban, aka the previous government of Afghanistan. And also members of the Iraqi military. And also US citizens initially detained by civilian authorities on US soil. Or anyone else the President declares an "enemy combatant" at his sole discretion. Glad that it's so cut-and-dried.
It is also possible that the military may be called upon to engage terrorists within the U.S. at some point, such the post 9/11 plan to shoot down a hijacked airliner.
Interestingly, there was authority and mechanism in place prior to 9/11 to shoot down a hijacked airliner. It would have required the approval of the President or the Secretary of Defense, neither of whom were available at the time of the crisis. Apparently, Mr. Cheney was willing to exercise the authority, but too late.
Interesting, though, that you so cheerfully rush to embrace the use of the military in general police actions within the US. So you've evolved from calling the 28-year-old FISA unconstitutional (which the DoJ never tried to argue until the adminstration got caught violating it) to calling the 128-year-old Posse Comitatus Act unconstitutional. Wow, who knew it was so easy to simply assert inherent Presidential powers? Maybe the President can come up with another signing statement pointing out that he is not bound by the legislative or judicial branches, like the one for the McCain amendment. Because that's how checks and balances work.
It's funny that people who still have conniptions over Marbury v. Madison have no problem with the President claiming that his executive powers are whatever he says they are, especially with use of the military. It's also somewhat disturbing to those of us who are familiar with what happened to the Roman Republic once magistrates started bringing troops inside the pomerium in order to "protect" the Republic.
But at least "the fly" is being much more open about the sort of thing he believes in as a "conservative": the President has the inherent power to deploy troops inside the US as he sees fit, for as long as he wishes, in order to protect us from threats that he alone gets to define. Oh, and Democrats are helping al Qaeda with its talking points, and giving comfort to the enemy. God bless America.
--mds
I can see only one logical reason the Administration bypassed the retroactive search warrants allowed by FISA
ReplyDeleteI think W & crew are monitoring purely domestic communications on as active a basis as possible
The fly,
ReplyDeleteI’m sorry, but you would “guess” that the president’s “inherent powers” to violate the constitution?!? Why do Bush apologists have so much disdain for our constitution? Are there no depths to which you will sink to defend this man?
A true patriot would never put party over country.
Anonymous,
ReplyDeleteDigby recently posted on his blog that he does not fear that the Bushistas will install a fascist state because, for one, we do not have a national police force to enforce the president's will. Well, Fly has found the solution to that little hurdle - the U.S. military acting internally as our national police force (forget the new "uniformed secret service" - these guys have tanks.)
kingcranky ii,
ReplyDeleteEverything you say is true, but fear not, big daddy Bush is only looking out for us. Trust him! Anyway, I'm okay if the constitution is shredded as long as the bedwetters sleep drier at night knowing that Bush is monitoring all of our communications and deciding which of us is an unlawful enemy combatant.
--mds
ReplyDeleteI take exception to you attributing remarks in this paragraph to me:
"But at least "the fly" is being much more open about the sort of thing he believes in as a "conservative": the President has the inherent power to deploy troops inside the US as he sees fit, for as long as he wishes, in order to protect us from threats that he alone gets to define. Oh, and Democrats are helping al Qaeda with its talking points, and giving comfort to the enemy. God bless America."
What I actually said was "It is also possible that the military may be called upon to engage terrorists within the U.S. at some point, such the post 9/11 plan to shoot down a hijacked airliner."
JTN,
You don't seem to understand the president's inherent powers. When a foreign power attacks the country, the president is required to fulfill his role as "Commander In Chief" and take action to defend the nation.
I obviously do not agree with your claim that the president is violating the Constitution.
"Fly has found the solution - forget the new "uniformed secret service" - these guys have tanks."
Please refer to my note to --mds above.
You don't seem to understand the president's inherent powers. When a foreign power attacks the country, the president is required to fulfill his role as "Commander In Chief" and take action to defend the nation.
ReplyDeleteOf course, the president is still restricted to his actual authority as delimited by the Constitution, even in wartime. This forbids, for example, the president giving orders to state police, as they are not members of the armed forces.
Futher, if the president misuses this position of authority and orders the military to take any illegal actions, he is responsible for those actions.
Finally, the actions taken in the FISA fiasco are clearly outside of the president's authority right now, and would still be illegal in nearly any similar state of affairs. They are simply, blatantly illegal.
What I actually said was "It is also possible that the military may be called upon to engage terrorists within the U.S. at some point, such the post 9/11 plan to shoot down a hijacked airliner."
ReplyDeleteOkay, I'll repeat myself:
"using the military to engage terrorists within the US at some point" would violate the Posse Comitatus Act, which no executive has gotten the SCOTUS to declare unconstitutional in 128 years. There is, of course, a loophole via the National Guard, but I didn't see you invoke it.
Or are you not approving of the proposed action, even though it is within your outrageously limitless inherent Presidential powers?
So take exception all you want. Until you point out to me where you draw the line in giving the President "inherent" powers to ignore the laws he is Constitutionally bound to see faithfully executed, I'll continue to point out that you wish this President to have unlimited powers while defending the nation against "terror." When will "terror" be defeated, fly? Who decides that? Our Commander-in-Chief alone? Seriously, does anyone other than George W. Bush get to draw the line?
Jeebus, I'm reminded of the Seinfeld version of Rock, Paper, Scissors. Rock punches right through paper! Nothing beats Rock! This is the interpretation of checks and balances with which we're being presented.
--mds
Fly, you said: "You don't seem to understand the president's inherent powers." Damn straight I don't. I also don't understand the role of fairies or leprechauns. Because they are all made up. You call it inherent authority because it has no basis or underpinning in the constitution - otherwise you would call it consitututional authority. You might just as well call it Bush's God given authority. Or better yet, the divine right of Kings.
ReplyDelete--mds
ReplyDeleteOr are you not approving of the proposed action, even though it is within your outrageously limitless inherent Presidential powers?
No, just pointing out the obvious fact that if the decision to shoot down an airliner actually happens, it would be the military, i.e. National Guard as you point out, pulling the trigger. Are you suggesting that only each individual state can use their own National Guard troops and only if attacked? As I understand the current situation, the president must ask a state to cede authority before taking command of the National Guard.
"the Posse Comitatus Act"
I'm not talking about using the military as a domestic law enforcement agency. Think "Pearl Harbor" somebody has to shoot back, right?
"When will "terror" be defeated, fly? Who decides that? Our Commander-in-Chief alone? Seriously, does anyone other than George W. Bush get to draw the line? "
Great questions. Yes, I would say during a "war" the president ultimately must make these three decisions. Of course Congress will have to get involved in a discussion of domestic military action.
JTN
Here is Al Gore in his recent speech: "Don't misunderstand me: the threat of additional terror strikes is real and the concerted efforts by terrorists to acquire weapons of mass destruction does indeed create a real imperative to exercise the powers of the Executive Branch with swiftness and agility. Moreover, there is in fact an inherent power conferred by the Constitution to the President to take unilateral action when necessary to protect the nation from a sudden and immediate threat. And it is simply not possible to precisely define in legalistic terms exactly when that power is appropriate and when it is not."
The Raw Story.
the fly,
ReplyDeleteI am just floored that you have read Al Gore's speech and all that you can take from it is that he uses the word "inherent." Through his eloquent words defending against the evils of executive overreach and imbalance of executive power over the judicial and legislative branches, that is what you took away? How sad.
Now, as to what he said, note that he said "Moreover, there is in fact an inherent power conferred by the Constitution to the any President to take unilateral action when necessary to protect the nation from a sudden and immediate threat. And it is simply not possible to precisely define in legalistic terms exactly when that power is appropriate and when it is not. But the existence of that inherent power cannot be used to justify a gross and excessive power grab lasting for many years and producing a serious imbalance in the relationship between the executive and the other two branches of government."
Notice, he says that the authority is conferred by the constitution - and therefore defined and constrained by the constitution, therefore not inherent at all, strictly speaking (i.e. "possessed without its being derived from another.") even Gore's idea of an "inherent authority" is a made up one, not enumerated by the constitution, but, he believes, somehow confered by the constitution. At least he believes that the constitution grants the power.
You said above that you would "guess" that the president's inherent power allows him to violate the constitution and the FISA. I and the DOJ (at least back in 2002) say bubkis. A power conferred by the constitution may not be read to allow the violation of the constitution. Proponents of the unitary executive theory like Professor Yoo want to blow up this so called "inherent" power to overwhelm the entire constitution, whenever the president feels like it. That is what makes your “inherent” power equivalent to the divine right of kings - “l’etat, c’est moi.”
The courts are said to have some inherent powers, but they do not include violations of the constitution or the law. Rather, they are those powers which are required for the court to do its job, but which have not otherwise been enumerated by the constitution or statute. Contempt proceedings are such a power.
When the word "inherent" is used in this context it is similarly describing the president's ability to perform powers as commander in chief which have not otherwise been enumerated by the constitution or by Congress, but have not been denied either. Hence, the president may order the military to ward off an attack on the U.S. without congressional approval. How this equates with four years of wiretapping with no legislative, judicial, or, apparently, DOJ, oversight in violation of the constitution and the FISA is just astonishing.
And truly, all of this is moot, since the constitution grants the power to declare war in Congress, and there has been no such declaration against this ephemeral "foreign power" called "terrorism." And, of course, this “war”, like the war on poverty and war on drugs, and war on Christmas, is another marketing gimmick to sell policy.
Even you must realize at some level that this is a naked power grab. Egypt has suspended liberties for decades now because it is in a “state of emergency” since the assassination of Anwar Sadat in 1981. Apparently you would buy that excuse here. Nevertheless, I expect that if a democratic president did it or does it in the future exercise this supposed “power”, you will fight it then. The difference between you and me is that I will fight it then too. I believe that this heresy is a threat to our nation, no matter what the party of the president who tries to exercise it.
JTN
ReplyDeleteLike --mds, you are attributing words to me that I did not write, namely: "You said above that you would "guess" that the president's inherent power allows him to violate the constitution and the FISA."
What I said was "I would guess that the presidents inherent power allows him to aggregate military intelligence and federal law enforcement activity." That would be the same "inherent power" that Al Gore speaks of.
"Egypt has suspended liberties for decades now because it is in a “state of emergency” since the assassination of Anwar Sadat in 1981. Apparently you would buy that excuse here."
No, I wouldn't.
"Hence, the president may order the military to ward off an attack on the U.S. without congressional approval. How this equates with four years of wiretapping with no legislative, judicial, or, apparently, DOJ, oversight in violation of the constitution and the FISA is just astonishing."
Yes, the president may order the military to ward off an attack. That's my point. He is using the NSA, which has been conducting military surveillance for 60 years, to gain information on terrorist activities so he can act on it.
I would say you are incorrect in claiming that this is "in violation of the constitution". By the way, I think FISA may in fact be unconstitutional because it interferes with the presidents war powers.
I'm struck that the essence of Gen. Hayden's argument is: Trust us.
ReplyDeleteFifty years ago, J. Edgar Hoover would have made the same arguments. Surely we want to know if any Americans are talking to the bosses in Moscow. Surely we all want to protect our country from the godless Commies in our Global War on Communism. And trust us that we'll protect your civil liberties, which we all treasure, as we wage this relentless war to protect the fatherland.
Of course, as the Church Committee and other investigators showed, that trust would have been misplaced. So the Congress designed a mechanism to give the Executive Branch the tools they needed, but in a way that introduced independent scrutiny and oversight while protecting secrecy.
But now, even that last shred of independent review is too much for the Administration.
Perhaps we need to remind more of our fellow citizens that this is not really new -- it's just a sad repeat of a regrettable tendency to abuse discretion and cover that abuse in secrecy.
NotherBob2,
ReplyDeleteBoyd is 1886, not the three decades earlier to which you try to date it.
In fact, Boyd contains numerous quotes from the Colonial era and eariler.
I've made the argument that, far from being originalists, people like Scalia and Alito are fools, picking and choosing what they like out of history to prove their point. They get away with it because the "other" side isn't engaging in the same exercise. They are, in fact, religiosos, whose main goal is to impose their religiosity upon the legal code of America.
Simply put, Boyd includes numerous eloquent expressions which indicate the true naure of the Fourth amendment as it meant to the revolutionaries who started this country.
No one should think "originalism" favors this group of monkeys in office now.
I'd be happy to discuss the people to read to prove this. Original sources only, please.
hey, abu gonzales says it's ok. you want fried balls?
ReplyDelete"The only question remaining for me is the Administration's motive."
ReplyDeletehere is what i posted at TPM Cafe yesterday:
What is missing is an openess to a belief, a recognition if you prefer, that men in these high positions really may be black-hearted criminals with so little respect for our laws that they have no compulsion to follow them when it appears to them that their transgressions are extremely unlikely to ever come back to haunt them. That they perceive this issue in this fashion makes sense if one assumes that they possess rock solid knowledge that due to black box voting and other unscrupulous means, they have zero likelihood of ever being called to account for their actions. Bush is literally above the law at this point. If the Iran /Contra pardons and the ability to conceal his pre jesus wrongdoings from the American public don't convince you, Florida in 2000, Georgia in 2002, and Ohio in 2004 should place any doubt beyond the bounds of reasonableness. They are simply gangsters with no fear of punishment, plain and simple. Don't over analyze this stuff. If he looks like a criminal acting without fear of reprisal thats very well what he may be. Now I am something of a tin foil hatter I will admit, but this isn't a 9/11 theory we are talking about here. It's not complicated. They just wanted a program that enables them to spy on their enemies whenever they wanted, so like the criminals they are, they devised this plan. What is so difficult to believe? Don't get bogged down in technology and debates over what the Congress would and wouldn't have approved. No Congressman can support politicallly motivated spying on American citizens. So they never bothered to try Congress because this was their aim all along. Just because it is obvious doesn't mean it isn't true.
Mr. Greenwald,
ReplyDeleteThank you very much for this great post. I got here from Atrios amd not only Knight-Ridder but also the WaPo and the LA Times have picked up on this.
http://atrios.blogspot.com/2006_01_22_atrios_archive.html#113824871546808069
That enactment is, for all intents and purposes, a declaration of war against al Qaeda, and is sweepingly general in its terms.
ReplyDeleteNo it isn't. It is limited to the armed forces.
"To authorize the use of United States Armed Forces against those
responsible for the recent attacks launched against the United States."
http://tinyurl.com/dsj5s
More to the point, as President Bush argued, his interpretation of the AUMF finds support in the Supreme Court's 2004 decision in Hamdi v. Rumsfeld.
ReplyDeleteNo it doesn't. In fact, it is just the opposite:
"In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen's core rights to challenge meaningfully the Government's case and to be heard by an impartial adjudicator."
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=03-6696
Glenn
ReplyDeleteThanks for this post. Thanks for exposing this. I was posting the Specter letter that I found on a blog linked to mine. Went in search of a news story and found the WaPo had credited you on this. Good job! Keep it coming!
http://blog.thedemocraticdaily.com/?p=1750
Oh, this is absolutely great. I hope this revelation gets the attention it deserves. Great work.
ReplyDeleteWhat is amazing is that major media, as a matter of course, does not perform a routine legislative histsory analysis when a certain law becomes a hot issue.
ReplyDeleteHe is using the NSA, which has been conducting military surveillance for 60 years, to gain information on terrorist activities so he can act on it.
ReplyDeleteGreat. And since it's military, Congress has the power "To make rules for the government and regulation of the land and naval forces" and "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Which they did with FISA, in accordance with their Constitutional authority. Whereupon the President "shall take care that the laws be faithfully executed", unless the Supreme Court decides otherwise. There is no power to set aside the law anywhere in Article II. Indeed, as whig notes above, the notion that our employee, the commander-in-chief of the armed forces, can completely and unilaterally nullify civilian law is soundly refuted by Ex parte Milligan, among others.
See, you can keep asserting over and over again that FISA is unconstitutional, and the President has all these unenumerated powers to unilaterally suspend laws and our rights as citizens, but neither you nor the Bush administration seems to understand that merely repeating something makes it actually true.
So, anyway, fly, where do you draw the line? Where does this unilateral power of the executive to make, execute, and interpret the law end? What limits do you think there are on presidential power?
--mds
Although I concur with reporting here, I doubt that the 42% or so Americans who still see the Prez as doing a"good" job would not grasp the comments posted.
ReplyDeleteThis administration is very adept at picking the audience and making it appear that most folks don't have an issue with these events.
Sadly, legalistic arguemnets cause most of the down home folks to just roll their eyes.
Until "the left" realizes that they need to present valuable information like this in much simpler terms and language, it is doomed to repeating the same failures of the past.
The most effective "Liberal" commentator appears to be Jon Stewart, and he is an admitted comedian. His blessing is that he can make more sense of a complicated issue for a broader range of people than the postings on here will ever reach. His curse is that he admits he is an entertainer, unlike folks such as Rush or the other vile pushers, who have been successful posing as preachers of the "truth".
Jimmy Carter and Bill Clinton both knew how to reach a broader public.
We need to consider how they presented complex issues such as this, and use it...
Excellent piece!
ReplyDeleteI just hope that Senators point this out forcefully at the upcoming hearings.
Congrats to you for staying on top of this! It is truly amazing what this administration is trying to do to this country and to think we've got 3 yrs yet to go!
Jon Husband,
ReplyDeleteIn response to your "Which foreign power": the term "foreign power" as I understand it, is not intended to refer only to specific countries, but any foreign force.
If the framers had intended to mean "country" why wouldn't they have used that term?
Anonymous,
According to Gen. Hayden, immediately after 9/11 the NSA, began more aggressive surveillance acting under it's own authority:
"These decisions were easily within my authorities as the director of NSA under and executive order; known as Executive Order 12333, that was signed in 1981, an executive order that has governed NSA for nearly a quarter century."
Hayden remarks.
There seems to be the perception out there that the NSA is just too intrusive. I understand and agree with some of these concerns, but how are we going to track down terror suspects within the U.S. without it?
Let's try these questions:
Should the NSA be completely separate from all domestic U.S. communications networks?
If so, should law enforcement (FBI) be allowed to "eavesdrop" using individually obtained judicial warrants?
The unitary executive theory which the Bush administration is now pushing - and their apologists are parroting - is truly an alarming assault on the preeminence of the constitution, the separation of powers, checks and balances, co-equal branches, and the rule of law.
ReplyDeleteAs one commentator above noted, the message is "trust us!" Well, I frankly would be much less concerned if the legislative or judicial branch were trying to grab power - because they have no way to execute their power. The power of the courts and congress is only effected when the president allows it. It is the president who commands the military and all of the federal forces (FBI, ATF, DEA, CIA, NSA, the "football". . .). And just as the Warren Court's Brown v. Bd of Ed. and progeny was a dead letter if the executive branch refused to enforce it, the greatest danger to our republic is a presidential power grab.
This is truly a constitutional crisis of epic proportions. And, since Bush and Co. had the opportunity to get Congress' approval for these actions (as evidenced by Mr. Greenwald's research), but instead thumbed their noses at Congress and the courts, it is an intentional constitutional crisis created by the administration. As fly so blithely argues, they believe that the FISA is itself unconstitutional as an usurpation of the president's pre-eminence over Congress and the Courts?!?
Republicans have embraced a take no prisoners, ends justifies the means, "all in" strategy. Frighteningly, this strategy only makes sense if their goal is a one party state. No party that believed they would ever be out of the white house would allow such neutering of the legislative and judicial branches.
I don't care how trustworthy, or honorable, or "compassionate" big brother is, he is still big brother.
Actually, the administration's excuses make perfect sense once you realize that they went ahead and implemented the Total Information Awareness program against the will of Congress. The key phrase in the relevations of warrantless spying is that the NSA has "tapped into the major arteries" of our telecommunications systems. This implies that they're spying on all of us, all the time. Obtaining warrants for spying on hundreds of millions of citizens every day would indeed be burdensome, even with a three-day delay.
ReplyDeleteIt seems unlikely that DeWine came up with this amendment on his own. Who do you suppose put the idea in his head, and why?
ReplyDeleteGeneral Hayden has claimed that this domestic surveilance program has nothing to do with the use of database technology to sort and search massive amounts of telephone calls, email (like the Total information awareness program). Of course, these liars are constantly changing their story, so who knows. It sure would explain why they would risk this crisis over a program which could have easily been approved by Congress and supervised by the courts.
ReplyDeleteThere is obviously more here than meets the eye. I suspect that it is either a program being used to spy on domestic "enemies" (i.e. democrats, Quakers, and other terrorists) or it is an enormous net, sweeping up all of our electronic communications, just as the Guardian has reported we already do to all calls outside of America.
When that comes out, the American people may just sit up and take notice.
In general, neither side is really understanding the version of the Unitary Executive concept that is being used here.
ReplyDeleteGo ahead and read the Wikipedia entry on it--the concept of the unitary executive is not about the limits (or lack thereof) of executive powers. It's about their location. To the liberal/libertarian critics, I would say that I think that it's not illegitimate to say that the chief executive does indeed have the right to all the powers that are granted to the executive branch.
The administration's arguments go beyond this; they are about the limits (or lack thereof) to the executive's power. For the liberal/libertarian critics, I think they should read Yoo's book. It does suggest that the President has inherent power to engage in limited military responses to foreign threats. (I think he gets the role of congressional assent wrong, but that's a different matter, though it may turn out to be not entirely irrelevant.) That's a part of the argument that I think the liberals/libertarians will lose. But this brings me to the conservative defenders of the administration; you also should read Yoo's book, because I think that (despite the administation's uses of his theories) it in fact demonstrates that the President does not have the authority to extend that power to domestic affairs. Instead, that is the domain of Congress (and the states.)
And so, Fly, you're right--the President does have certain powers to engage in military actions without the pre-approval of Congress or the courts. But this power is not unlimited. And the administration, depending on the facts of the case (which have not yet been entirely revealed) may well have exceeded those limits.
Some Guy writes:Go ahead and read the Wikipedia entry on it--the concept of the unitary executive is not about the limits (or lack thereof) of executive powers. It's about their location. To the liberal/libertarian critics, I would say that I think that it's not illegitimate to say that the chief executive does indeed have the right to all the powers that are granted to the executive branch.
ReplyDeleteThat's exactly right, and I've made the same point here once or twice, but decline to do so every time someone (ignorantly) comments about the purported horrors of the Unitary Executive theory, which I'm sure will continue to occur. Greenwald is too perceptive to have posted that error of conflation, but it does persist in his comments.
That's exactly right, and I've made the same point here once or twice, but decline to do so every time someone (ignorantly) comments about the purported horrors of the Unitary Executive theory, which I'm sure will continue to occur. Greenwald is too perceptive to have posted that error of conflation, but it does persist in his comments.
ReplyDeleteAs does the presence of people who (ignorantly) keep arguing for Unilateral Executive theory, which I'm sure will continue to occur. Greenwald is too perceptive to laugh off what many supposed proponents of the "Unitary Executive" are actually asserting, but it does persist in his comments. Remember, many of the people in this administration got their start in the Nixon administration. What was Nixon's view of the Executive, again? Oh, yes: "If the President does it, it isn't illegal." People who advance Unitary Executive theory from this premise, invoking the inherent power of the President to set aside laws, are not going by the Wikipedia entry. So Mr. Alito can assure us all he wants that the President isn't "above the law," when "Unitary" Executive proponents in the administration are arguing that the President isn't above the law; he decides what the law is.
Mr. Alito is on record as an advocate of "signing statements" such as the one President Bush appended to the McCain amendment, noting his authority to ignore the law, and asserting that the judiciary's authority is also limited. So forgive me if I doubt that Mr. Alito is following the Wikipedia entry, either. Mr. Roberts and Mr. Thomas have demonstrated that their "unitary executive" has unlimited powers to indefinitely detain citizens without trial; has someone sent them a copy of the Wikipedia entry?
In short, I don't give a good goddamn what "Wikipedia" says, when the most powerful proponents of the theory have demonstrated that they don't give a rat's ass about such "harmless" definition either.
--mds
This may be the weakest argument yet in opposition to the NSA intelligence gathering program...
ReplyDeleteJustice's job is to prosecute civilian criminal cases. With the exception of the the AG himself, it is doubtful that anyone at Justice would have had knowledge of this top secret NSA data mining program meant to gather foreign intelligence. Therefore, Justice was expressing no opinion as to the application of FISA to the NSA program when the proposal to amend FISA's standard for issuing warrants was made.
Given that they need to gather admissible evidence to prosecute civilian criminal cases, it is understandable that Justice would oppose lowering the standard for issuing FISA warrants below probable cause. Justice still needs to get past the probable cause standard under the 4th Amendment to introduce evidence in a criminal case no matter what FISA says.
However, three courts of appeal and the FISA court of review have held that Article II of the Constitution gives the President plenary power to gather intelligence on foreign powers and their agents in the US, whether native or foreign. Consequently, these courts have concluded that neither the 4th Amendment nor FISA bar such intelligence collection.
Given that Justice is not in the intelligence gathering business, their opinion concerning the amendment of FISA to lower standards for a search warrant concerned the gathering of criminal evidence and was irrelevant so far as intelligence gathering is concerned
The former NSA head was not commenting on whether FISA could constitutionally limit the power of the President to gather intelligence. Rather, he simply noted that, if FISA was applied to the NSA program, it would be nearly impossible to satisfy the criminal standards for obtaining a warrant.
Finally, all this entrail reading concerning Congress' "intent" in passing the use of force provisions for the war with al Qeada and then against Iraq is irrelevant. The TEXT of the authorizations is extremely broad and easily covers the gathering of electronic intelligence concerning the enemy. The fact that individual members of Congress may have has different ideas of what they were authorizing does not matter in the least. If the text can be fairly read to authorize the detention of enemy combatants as in the Hamdi case, then it can certainly be read to include intelligence gathering against the enemy. Intelligence gathering concerning an enemy is part and parcel of every military campaign since the beginning of time.
"'If the President does it, it isn't illegal.' People who advance Unitary Executive theory from this premise, invoking the inherent power of the President to set aside laws, are not going by the Wikipedia entry."
ReplyDeleteQuite right. That was my point. I was just using the Wikipedia as a convenient way to provide an accurate definition of the term. The definition certainly stands with or without the authority of Wikipedia! And you and I agree: those who define it otherwise are using the term incorrectly.
"So Mr. Alito can assure us all he wants that the President isn't 'above the law,' when 'Unitary' Executive proponents in the administration are arguing that the President isn't above the law; he decides what the law is."
Why would you assume that Alito's understanding of the Unitary Executive is identical to that of the administration? Especially when he in fact correctly described the term during his testimony?
"Mr. Alito is on record as an advocate of 'signing statements' such as the one President Bush appended to the McCain amendment, noting his authority to ignore the law, and asserting that the judiciary's authority is also limited."
And what I am saying is, that is *not* the Unitary Executive theory. That's something else. Now, it so happens that if you think the President has the authority to ignore the law, and can justify doing to by using signing statements, then you may also think that the Unitary Exectutive principle grants him absolute authority to do this. But the issues are separate. You could believe that the President has no such authority, and still be a proponent of the Unitary Executive.
"Mr. Roberts and Mr. Thomas have demonstrated that their 'unitary executive' has unlimited powers to indefinitely detain citizens without trial; has someone sent them a copy of the Wikipedia entry?"
I don't think either justice--or any justice--has used the Unitary Executive principle to justify such an action. Again, they may well have justified it for some other reason, and then granted the President that authority based on the Unitary Executive principle. But again, those are two separate issues.
"In short, I don't give a good goddamn what 'Wikipedia' says, when the most powerful proponents of the theory have demonstrated that they don't give a rat's ass about such 'harmless' definition either."
In your example, I would argue that even without the Unitary Executive theory, if a citizen can be detained without trial, then that is dangerous *all by itself*. Nevermind the Unitary Executive! Furthermore, if it's true that no citizen can be detained without trial, then the Unitary Executive theory is completely harmless in that regard. That's the difference.
Hi bart--
ReplyDelete"However, three courts of appeal and the FISA court of review have held that Article II of the Constitution gives the President plenary power to gather intelligence on foreign powers and their agents in the US, whether native or foreign. Consequently, these courts have concluded that neither the 4th Amendment nor FISA bar such intelligence collection."
This claim seems to me to be an exaggeration. As I understand it, the question is exactly whether or not the President can conduct warrantless surveillance on agents of foreign powers in the US. The President might have the power to conduct warrantless surveillance in general, but it may or may not extend to U.S. persons. Particularly without a declaration of war.
Some Guy,
ReplyDelete"And so, Fly, you're right--the President does have certain powers to engage in military actions without the pre-approval of Congress or the courts. But this power is not unlimited. And the administration, depending on the facts of the case (which have not yet been entirely revealed) may well have exceeded those limits."
Finally someone has made a comment here that accurately describes the current situation. War Powers apply, but they are not "unlimited". As a Bush supporter, I have been labeled here a number of times as supporting "unlimited" presidential powers as if the president were a "king". That's not the case. Some comments here suggest that the President has no authority at all.
Yes, it's true that we do not yet have all the facts, and yes it's possible that President Bush may have crossed some theoretical line using hyper-technical language as a standard. However, it is also possible that the President acted within his authority and did nothing "illegal".
The evidence you show, the argument you make is both logical and (from a layman's understanding of the Law) legally well grounded.
ReplyDeleteUnfortunately, at this time in our country, we operate in a mode whereby emotion overrides logic and legal argument in the minds of many.
Johnnie Cochran proved in the O. J. case that emotion can trump facts any day. You just have to repeat the magic phrase...in his case:
"If the glove don't fit, you must acquit."
With the Republican base, especially its Christian Right, so committed to emotion, faith, and an abhorence of factual discourse...we shouldn't be surprised when a shammer dressed in a general's uniform is able to sway the masses to his side of an argument. The general, the President, and all his minions are just required to repeat (often) a mantra such as "terrorist surveilance program" to quash any attack from people arguing the facts...already the Polls are leaning in favor of the "TSP" as described by the Administration.
In the minds of many in the public when confronted with the two phrases, illegal domestic wiretapping and terrorist surveilance program, the Law and the Constitution become moot...emotion takes over, thought goes out the window.
When Franklin said: (paraphrase) If you are willing to accept restricted freedom for added security, then you deserve neither. My friend, that seems to be the destiny of our democracy, our country...will the gulag be far behind?
Franklin, 1755:
ReplyDelete"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."
essential liberty.
Some Guy said...
ReplyDeleteHi bart--
"However, three courts of appeal and the FISA court of review have held that Article II of the Constitution gives the President plenary power to gather intelligence on foreign powers and their agents in the US, whether native or foreign. Consequently, these courts have concluded that neither the 4th Amendment nor FISA bar such intelligence collection."
This claim seems to me to be an exaggeration. As I understand it, the question is exactly whether or not the President can conduct warrantless surveillance on agents of foreign powers in the US. The President might have the power to conduct warrantless surveillance in general, but it may or may not extend to U.S. persons. Particularly without a declaration of war.
The Courts do not make an exception for agents which are US citizens and do not require a state of war.
I think the WH is making a mistake trying to dramatize this issue by continually referring to the fact that we are at war. The President's power to conduct foreign intelligence exists in peacetime as well as during war.
FYI, here are the cases the Administration is relying upon. There are actually more...
The courts uniformly have approved this longstanding Executive Branch practice.
Indeed, every federal appellate court to rule on the question has concluded that, even in
peacetime, the President has inherent constitutional authority, consistent with the Fourth
Amendment, to conduct searches for foreign intelligence purposes without securing a judicial
warrant. See In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002) (“[A]ll
the other courts to have decided the issue [have] held that the President did have inherent
authority to conduct warrantless searches to obtain foreign intelligence information . . . . 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.”) (emphasis added); accord, e.g., United
States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980); United States v. Butenko, 494 F.2d
593 (3d Cir. 1974) (en banc); United States v. Brown, 484 F.2d 418 (5th Cir. 1973).
> http://news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf
Well thought out and well stated, but you're aiming water at the top of the flame. If you'd like to put the fire out, aim at the base. Go to the origin.
ReplyDeleteWe're watching the rapid deterioration of what was not that long ago an admirable ( if not perfect) system of government. It has rapidly become "The Best Government Money Can Buy." And therein lies the problem. Corporations, wealthy individuals, even foreign countries routinely buy what they want from our noble public servants. Clean Elections. Now!
bart--
ReplyDeleteYep, I would agree he does have that authority. The problem is the meaning of "foreign surveillance"--particularly with reference to U.S. persons. Well, actually I think it really depends on the meaning of "primarily", as in, "'primarily' for foreign intelligence reasons" (from Truong) Indeed, Brown urges the courts to scrutinize such cases carefully to make sure they have "their origin in foreign intelligence".
I'm not saying the administration definitely violated the law, nor am I guaranteeing that FISA is constitutional. I'm just saying it's possible they violated the law. It will depend on the facts of the matter.
Though it's interesting...it's possible, I think, that FISA is just an exercise of the "necessary and proper" clause. I had previously discounted this argument, but now I think it might have some merit. Hm.
There appear to be some sensible, albeit misguided, bush supporters commenmting here, so bart and the fly, don't be taken in by the weak quality of the gonzalez defenses and precedents. The Congressional Research Service report is lengthy but quite compelling and thorough:
ReplyDeletehttp://www.fas.org/sgp/crs/intel/m010506.pdf (please forgive my techno-illitercy and inability to hot link). Because it's a PDF i can't copy and paste, but i assure you, it quite simply destroys the bush arguments for why what he's doing is legal.
To try and summarize, what we've got is a condition in which the courts invited Congress to write a law, Congress wrote a law, the law has been used for a quarter century with no problems, and now Bush is claiming the authority to override that law because of the widest reading imaginable of the AUMF.
As for the inherent powers, this is an irrelevancy. The president's inherent powers in this, as in other matters, are still circumscribed by congress and the courts and must still meet his constitutional mandate to see that the laws are faithfully executed.
The non-U.S. persons matter is a little tricky, though: as i read FISA (and, admittedly, it's a tricky law and there are some Executive Orders that relate to it and nso forth), you need to get the Attorney General's permission even to wiretap foreign agents in foreign countries, due to the Church committee's extensive documentation of the ease with which "national security" could be used to wiretap american citizens, and i think DeWine was offering an ammendment to lower the bar for the AG to provide that waiver (I do not believe FISA comes into play unless there is either an american or both parties are in the united states).
As for what's going on, i think what general haydon said is that he can't meet the probably cause bar even in 72 hours. This makes me think - especially in conjunction with the "turned on the spigot" explanation for why the FBI was flooded with pointless tips in the early days of the program - that what we're getting is a known AQ phone number leads to a sweep of everyone calling that number (which might meet "hot pursuit") but more important, everyone calling everyone calling that number, which isn't probable cause no matter how you slice it.
howard,
ReplyDeleteWith all due respect, I do not appreciate you're labeling myself and others here "misguided".
Last month we witnessed Ted Kennedy and company try to smear Judge Alito, under color of "the will of the people" and they ended up making complete buffoons of themselves.
We are seeing comments here that are not representative of the average American being made in a similar manner.
As usual a really excellent piece Glenn, you're a damn good writer...
ReplyDeleteBut I was wondering if this might pique your interest as well.
I was recently showing a DVD of a speech by Professor David Ray Griffin, who at this point has made some of the most credible arguments regarding Bush Administration involvement in 9/11 (his book on the 9/11 Commission cover-up alone is pretty damning). During the speech, Griffin reminded me that we've come across another odd FISA discrepancy in the paast.
Remember how the FISA order to search Zacarias Moussaoui's laptop was sabotaged? How the Bush Administration didn't want it searched?
In other words, they'll spy on Americans without discrimination under the aegis of keeping us safe from terrorists, but they won't even search the laptop of a man they suspect has info on the planning of 9/11?
What utter horseshit.
the fly, i used "misguided" because you don't seem like a propaganda robot, but you're still wrong. It isn't "possible" that Bush "may have crossed some theoretical line using hyper-technical language as a standard." Rather, it's a fact that he has broken the law using shoddy arguments as his basis.
ReplyDeleteand what any of this has to do with ted kennedy, sam alito (other than alito's likely willingness to live with this president breaking the law), and whoever an "average" amemrican is is beyond me.
Some Guy said...
ReplyDeletebart--
Yep, I would agree he does have that authority. The problem is the meaning of "foreign surveillance"--particularly with reference to U.S. persons. Well, actually I think it really depends on the meaning of "primarily", as in, "'primarily' for foreign intelligence reasons" (from Truong) Indeed, Brown urges the courts to scrutinize such cases carefully to make sure they have "their origin in foreign intelligence".
I think the courts will give the President wide latitude to define "foreign surveillance" so long as the WH can point to a foreign group, especially a declared enemy.
The dividing line will come when the executive attempts to use evidence gathered during "foreign surveillance" for a criminal trial. I think the courts will balk at admitting evidence gained in warrantless foreign surveillance, but will probably admit evidence gained under a warrant after the defendant was indentified during foreign surveillance.
This comment has been removed by a blog administrator.
ReplyDeletehoward said...
ReplyDeleteThere appear to be some sensible, albeit misguided, bush supporters commenmting here, so bart and the fly, don't be taken in by the weak quality of the gonzalez defenses and precedents. The Congressional Research Service report is lengthy but quite compelling and thorough:
I was less than impressed with the CRS' brief...
The CRS attorneys argued on behalf of Congress that Congress somehow shares constitutional authority over foreign intelligence gathering with the President. However, they couldn't cite any provision of the Constitution or any case precedent for this radical proposition.
To my mind, Congress can't regulate the gathering of foreign intelligence by passing FISA any more than the President can pass spending bills by signing an executive order.
The CRS attorneys completely hit the wall when they tried to argue that the FISA court of review holding that FISA did not abridge the President's intelligence gathering authority was not legitimate because it cited to pre FISA caselaw. I think CRS knew this was patently ridiculous when they limply concluded that there is a dispute over the meaning of the opinion of the FISA court of review...
Good points bart.
ReplyDeletehoward,
"it's a fact that he has broken the law"
Actually, no it's not a fact, it's an opinion. If you want to make that claim, then it's also a "fact" that Bush acted legally within his war powers under the Constitution or the AUMF, and FISA is unconstitutional, because that's the flip side of the argument.
I used Kennedy as an example because he was also trying to establish "facts" that would demonstrate that Judge Alito was some sort of closet racist. Ridiculous, but that didn't slow Kennedy down at all.
Here is an example of the general public rejecting the Democrat's foolhardy attacks. You can expect more of this type of backlash during the upcoming hearings on war powers. People are not going to stand for more of this crap, we all know Congress has more important work to do:
Sen. Robert Byrd (D-West Virginia): "Let me be clear. I mean no criticism of the chairman of the Senate Judiciary Committee or any particular member of that committee. I feel compelled to address this issue. Not to point fingers. Not to scold. Not to assign blame. But only to address specific, sincere, heartfelt concerns that have been brought to my attention by the people of West Virginia in particular."
"People of different faiths. Different views. Different opinions. (They) independently and respectively used the same two words to describe the hearings. They called them an outrage and a disgrace."
(It's interesting to note that nonetheless Senators Kerry and Kennedy are still calling for a filibuster on Alito)
Generally, what we see on liberal blogs is selective manipulation of published reports or remarks of individuals to support an outcome predetermined after Kerry lost the election "Bush lied / broke the law".
That is not fact finding, it's called political spin. Expressing opinions is great thing, but nothing written in newspapers or blogs, no matter how clever, constitutes a final determination of whether anything illegal or unconstitutional has occurred.
Sure, it's possible that President Bush made a wrong turn at some point, and I think it's great to analyze all of this stuff to our hearts content. But keep in mind that it's also possible that he did nothing wrong. I would like to add that stacking all of these shrill attacks on top of one another doesn't enhance the Democrat's credibility.
Do you really think the average person would still bother to stop and listen to all this stuff? The Supreme Court will ultimately decide all of this, that is if it ever gets that far.
brad, i expected better from you, truly i did.
ReplyDeletefirst, to clear something up, congressional research service is not "lawyers," it is just what its name say it is: a research service available to members of congress. its reputation for probity, depth, analytic clarity, and integrity is superb.
now, i considered and rejected a deeper demonstration of your, what shall we call it, oversimplification of what the CRS wrote (because i can't copy and paste the relevant material from a PDF), but i decided to cut to the chase.
The president's ability to obtain foreign intelligence isn't an expressed power of the president in the constitiution, either. Even when the presidient has expressed powers - such as, in this context, commander-in-chief - that power is not unbounded. If he wants a 50-division army and congress funds 20, congress wins, despite the president's authority as commander-in-chief.
so i don't see what your problem is with recognition of a very clear, well-understood principle of the constitution - that there are checks and balances to keep power hemmed in. A declaration of war is not a blank check, and i quote....
but the underlying premise you seem to be pursuing here is that FISA is, itself, unconstitutional. you can't really mean that, can you? and if it isn't unconstitutional, it's being broken by the president, who has no express power ever to break the law, since his constitutional mandate is to see that the law is "faithfully executed."
well, the fly, i'm really coming to conclude that i overestimated you. you do show signs of being a propaganda robot.
ReplyDeleteIt is a fact that Bush is breaking FISA. This is not contestable: there are procedures and he has, in select instances, waived them. This is precisely what General Haydon has now confirmed for us. I don't know how you can argue that.
it is your opinion that the AUMF trumps and/or implicitly modifies FISA, and it is your opinion that FISA isn't constitutional, but both of these would need to be tested in court. neither would change the reality that Bush is breaking FISA regardless of whether they are exculpatory as far as criminality goes.
these are two separate matters.
meanwhile, as for the rest of your rambles, i won't dignify them with a response as they are competely off-topic and non-germane, standard propaganda robot fare, inclusive of this condescension to the "average" American and what he or she cares about.
howard said...
ReplyDeletebrad, i expected better from you, truly i did.
first, to clear something up, congressional research service is not "lawyers," it is just what its name say it is: a research service available to members of congress. its reputation for probity, depth, analytic clarity, and integrity is superb.
CRS may have many functions, but one of them is to provide legal briefs to members of Congress to explain the law to them. The authors of this brief are both fine attorneys who are doing the best they can to argue the position of their client, Congress.
now, i considered and rejected a deeper demonstration of your, what shall we call it, oversimplification of what the CRS wrote (because i can't copy and paste the relevant material from a PDF), but i decided to cut to the chase.
I cut to the chase. CRS' entire legal argument is predicated on their theory that Congress shares with the President the constitutional power to conduct surveillance on foreign groups and their agents in the US. Because Congress shares this power, CRS' theorizes that FISA is controlling over the NSA data mining program. However, because Congress does not share this power, then CRS' entire argument fails.
I didn't see the need to review their arguments concerning FISA because they are irrelevant.
The president's ability to obtain foreign intelligence isn't an expressed power of the president in the constitiution, either. Even when the presidient has expressed powers - such as, in this context, commander-in-chief - that power is not unbounded. If he wants a 50-division army and congress funds 20, congress wins, despite the president's authority as commander-in-chief.
That is correct. However, once it funds those 20 divisions and provides the authority to go to war, Congress has no control over how the President as CiC chooses to use those divisions. It certainly cannot pass a bill requiring the President to go to a court to get permission to deploy those divisions.
Likewise, Congress could pass a bill to cut off the funding for this NSA program. However, once that funding is provided, Congress has no power to tell the President how to conduct the program.
so i don't see what your problem is with recognition of a very clear, well-understood principle of the constitution - that there are checks and balances to keep power hemmed in.
I completely agree. Congress' checks in this case are the power of the purse and its power of oversight. However, that is where Congress' powers end.
but the underlying premise you seem to be pursuing here is that FISA is, itself, unconstitutional. you can't really mean that, can you?
To the extent that it applies to the President's authority to direct foreign intelligence gathering, it is pretty clear that FISA is unconstitutional.
However, FISA is a perfectly legal method of issuing warrants for criminal case investigation.
Bart, you wrote:
ReplyDelete"Congress' checks in this case are the power of the purse and its power of oversight. However, that is where Congress' powers end.....To the extent that it applies to the President's authority to direct foreign intelligence gathering, it is pretty clear that FISA is unconstitutional."
But this is just what interests me--this "power of oversight". If Congress can oversee executive actions, then why couldn't the FISA court be constitutional? It would only be unconstitutional if it actually prevented the President from exercising his authority to gather foreign intelligence. But if FISA is merely a way for Congress to make sure the President is in fact acting within his capabilities, that seems (potentially) within the scope of Congress' power.
This is a tricky point, though I now think it's interesting. FISA does, it turns out, restrict the President's authority to gather foreign intelligence without a warrant. That warrant requirement may be the unconstitutional element. And yet, in a sense all the warrant represents is Congress' assent that the President's actions are within his authority. It all breaks down to what the warrant represents.
Let me put it this way. If the denial of a warrant request represents the statement "This is the gathering of foreign intelligence, and you can't do it in this case", then that's unconstitutional. But if instead it means "This is not the gathering of foreign intelligence at all", then it may be perfectly constitutional.
Some Guy said...
ReplyDeleteBart, you wrote:
"Congress' checks in this case are the power of the purse and its power of oversight. However, that is where Congress' powers end.....To the extent that it applies to the President's authority to direct foreign intelligence gathering, it is pretty clear that FISA is unconstitutional."
But this is just what interests me--this "power of oversight". If Congress can oversee executive actions, then why couldn't the FISA court be constitutional? It would only be unconstitutional if it actually prevented the President from exercising his authority to gather foreign intelligence. But if FISA is merely a way for Congress to make sure the President is in fact acting within his capabilities, that seems (potentially) within the scope of Congress' power.
Interesting angle...
However, under the doctrine of separation of powers, Congress cannot delegate its responsibility of oversight to the judicial branch. The judicial branch's responsibility is to hear cases in controversy between parties, not to perform the political function of monitoring the executive branch for Congress.
This is a tricky point, though I now think it's interesting. FISA does, it turns out, restrict the President's authority to gather foreign intelligence without a warrant. That warrant requirement may be the unconstitutional element.
Based on what little we know about the program at issue, I would not disagree so far...
And yet, in a sense all the warrant represents is Congress' assent that the President's actions are within his authority. It all breaks down to what the warrant represents.
No, a warrant is supposed to represent a court's finding that a normally unreasonable search is OK because there is probable cause to believe that a civilian crime has or is taking place.
Warrants have nothing to do with foreign intelligence collection.
Congress should not be bastardizing the judicial warrant process to perform its political function of executive oversight.
REALITY CHECK:
ReplyDeleteCongress created FISA under President Carter.
Need I say more?
FISA is unconstitutional because Congress is attempting to abridge the president's war powers by imposing a statutory requirement directing the president to submit military intelligence gathering decisions to federal judges for their approval.
This is clearly outside congressional authority. Congress is the branch of government attempting a "power grab" if you ask me. If you believe Congress has the authority to abridge the Constitutional framework itself, then what are the limits on Congress?
We are talking about a foreign enemy blending into the U.S. population. They are not entitled to an "expectation of privacy". Even in domestic criminal cases, obtaining warrants for physical searches is not always required so long as a search is "reasonable".
Show me the language in the Constitution that says Congress or federal judges were intended to act as a "check and balance" on military decisions made by the CIC under constitutional war powers.
"under the doctrine of separation of powers, Congress cannot delegate its responsibility of oversight to the judicial branch."
ReplyDeleteSure. I'll agree to that.
"a warrant is supposed to represent a court's finding that a normally unreasonable search is OK because there is probable cause to believe that a civilian crime has or is taking place."
Yeah, I'm really just trying to figure out how FISA could have been implimented in a Constitutional manner. If it hadn't required a court order to prevent crinimal prosecution in these cases (monitoring communications of U.S. persons with terrorist organizations), it might have been fine. (But then I'm also trying to make sense out of FISA--why *weren't* terrorist organizations granted an exception to the court order requirement?)
"Congress should not be bastardizing the judicial warrant process to perform its political function of executive oversight."
That sounds like a good principle.
the fly said:
"Show me the language in the Constitution that says Congress or federal judges were intended to act as a "check and balance" on military decisions made by the CIC under constitutional war powers."
Well, I'm suggesting the elastic clause might sneak it in, but it's the court order requirement that seems to torpedo it.
Consider Thomas Jefferson's concern with the judiciary, rather than the executive, in regard to constitutional authority:
ReplyDelete"The Constitution... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." - Thomas Jefferson to Abigail Adams, 1804.
You seem ... to consider the judges as the ultimate arbiters of all constitutional questions, a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy" - Thomas Jefferson to William C. Jarvis, 1820.
And the check on that, in my opinion, is the power of the representatives of the people to impeach any public official, including sitting justices.
ReplyDeleteBut I've been thinking it over, and I wonder if FISA could be constitutional in the following manner. Related to my previous notion that FISA court orders suggested that they were determinations of whether surveillance were the collection of foreign intelligence at all...couldn't FISA just be tantamount to a declaration by Congress that some activities are indeed the collection of foreign intelligence, and some are not? This would neatly explain (to me, anyway) why FISA did not exempt communications with terrorist groups from the court order requrement. It's because Congress didn't consider that sort of communication to be a part of foreign affairs. Instead...it suggests that Congress considered illicit cooperation with a terrorist group to be a *criminal* act, but *not* an act of foreign aggression.
Now, maybe Congress is right about this, or maybe they're wrong. Once again, it will take the courts to decide. But it would mean that it's not a clear-cut case of Congressional usurpation of Presidential powers. Instead, it's a conflict about what those powers in fact are.
The Fly said:
ReplyDeleteShow me the language in the Constitution that says Congress or federal judges were intended to act as a "check and balance" on military decisions made by the CIC under constitutional war powers.
I see: you really believe that spying on average Americans -- and/or on the Bush Administration's political opponents or anyone who dares to criticize that administration -- is a "war power?" Or that a putative "war on terror," which is equivalent to a "war on crime" in that goes on forever, is what the Founding Fathers envisioned as war and is an excuse for the White House to do anything it pleases?
Between the packing of the courts, the negation of checks and balances by political parties, and illegal actions by the White House, our form of government is very, very near to complete collapse. Why is the public not alarmed by this? Why is the press complacent?
The Fly said:
ReplyDeleteShow me the language in the Constitution that says Congress or federal judges were intended to act as a "check and balance" on military decisions made by the CIC under constitutional war powers.
I see: you really believe that spying on average Americans -- and/or on the Bush Administration's political opponents or anyone who dares to criticize that administration -- is a "war power?" Or that a putative "war on terror," which is equivalent to a "war on crime" in that goes on forever, is what the Founding Fathers envisioned as war and is an excuse for the White House to do anything it pleases?
Between the packing of the courts, the negation of checks and balances by political parties, and illegal actions by the White House, our form of government is very, very near to complete collapse. Why is the public not alarmed by this? Why is the press complacent?
Some Guy said...
ReplyDeleteAnd the check on that, in my opinion, is the power of the representatives of the people to impeach any public official, including sitting justices.
I agree. Impeachment is the only check there is on the judiciary and should be used whenever the judiciary makes up laws...
But I've been thinking it over, and I wonder if FISA could be constitutional in the following manner. Related to my previous notion that FISA court orders suggested that they were determinations of whether surveillance were the collection of foreign intelligence at all...couldn't FISA just be tantamount to a declaration by Congress that some activities are indeed the collection of foreign intelligence, and some are not?
Based on the post Watergate history of this act, I think Congress was attempting to assert control over the President's foreign policy powers.
In any case, even if Congress had the lesser intent that you suggest, it would be unconstitutional because Congress does not have the power to define the scope of the President's constitutional powers. To do so would usurp both the President's and the judiciary's function.
Congress simply overreached in enacting FISA when the presidency was at the lowest ebb of its modern power and you had the weakest president in the 20th century sitting in the WH.
"In any case, even if Congress had the lesser intent that you suggest, it would be unconstitutional because Congress does not have the power to define the scope of the President's constitutional powers."
ReplyDeleteYour historical analysis might be correct--I'm just saying that FISA may just be a statement of Congress' *opinion* as to the distinction between foreign intelligence and criminal investigation. I wouldn't disagree that a distinction exists regardless of Congress' opinion, and I wouldn't disagree that Congress might be wrong about that distinction. I'm just saying it could turn out that they were right.
"Congress simply overreached in enacting FISA when the presidency was at the lowest ebb of its modern power and you had the weakest president in the 20th century sitting in the WH."
If they are wrong about the difference between foreign intelligence and criminal investigation (i.e. terrorists as a foreign power vs. terrorists as a criminal organization), then yes, they overreached, and FISA is unconstitutional. I'm just saying that if they are right about the difference, then FISA may stand. And again, I'm sure we'll all find out sooner or later.
Someone asked earlier on about the possible motives - not because it would matter politically but because it might legally - but I think the political answer to the question trumps all legal considerations...
ReplyDeleteThis administration didn't want additional legal cover for the program because they wanted what they were doing to be EXTRA-LEGAL, by definition. Not illegal, which means against the law, but extra-legal, meaning outside the purview of the law, as befits actions the President may take in the face of a unique threat such as that posed by International Terrorism...they wish to have this argument in public - because they are sure they'll win in the court of public opinion and thereby add another brick to the wall of extra-legality that surrounds this President (or, by extention, the Presidency). This rationale for this wiretapping program and other outrageous acts by the Administration was as much as admitted to by VP Cheney and others a couple of weeks ago on the morning talk shows. That may be why they had last week's "rebuttal" campaign in the can and ready to go, no? Because they are Rove-ly confident this is another bogus argument they win and in doing so appear to strengthen their "mandate."
Glenn -- Thanks for "data mining" the inconsistencies in this on-going fiasco. i'm just a little curious as to what can be done with such information.
ReplyDeleteseems that the Rumsfeld intelligence coup will propagate itself through every aspect of American life with Congress's continued oversight.