NSA Eavesdropping - Please Don't Pass DeWine

The WaPo picks up on Glenn Greenwald's DeWine amendment story:

The Bush administration rejected a 2002 Senate proposal that would have made it easier for FBI agents to obtain surveillance warrants in terrorism cases, concluding that the system was working well and that it would likely be unconstitutional to lower the legal standard.

The proposed legislation by Sen. Mike DeWine (R-Ohio) would have allowed the FBI to obtain surveillance warrants for non-U.S. citizens if they had a "reasonable suspicion" they were connected to terrorism -- a lower standard than the "probable cause" requirement in the statute that governs the warrants.

...

Democrats and national security law experts who oppose the NSA program say the Justice Department's opposition to the DeWine legislation seriously undermines arguments by Attorney General Alberto R. Gonzales and others, who have said the NSA spying is constitutional and that surveillance warrants are often too cumbersome to obtain.

"It's entirely inconsistent with their current position," said Philip B. Heymann, a deputy attorney general in the Clinton administration who teaches law at Harvard University. "The only reason to do what they've been doing is because they wanted a lower standard than 'probable cause.' A member of Congress offered that to them, but they turned it down."

Well, that is the Dem spin, anyway.  My long ramble is here; briefly, let me make these points:

(1)  The DeWine Amendment only lowered the threshold for non-US persons, which would not have solved the eavesdropping problem as it related to US persons.  Moreover, by re-emphasizing the protected status of US person with new legislation in 2002, the amendment might have undermined the Administration legal arguments supporting the NSA program.

(2)  The Administration might have felt comfortable that its current legal foundation was solid, and taken guidance from a familiar adage - if it ain't broke, don't pass legislation that muddies the waters.

(3)  General Hayden, in his appearance Monday, emphasized the difference between "reasonable" and "probable cause" as the basis for a search, and left us with the impression that the NSA program was operating on a "reasonable" standard.  However, the WaPo delivers a headscratcher on that point:

But Justice Department officials disagreed, saying the standard the department opposed in 2002 is legally different from the one used by the NSA.

"The FISA 'probable cause' standard is essentially the same as the 'reasonable basis' standard used in the terrorist surveillance program," said spokeswoman Tasia Scolinos, using the term for the NSA program the White House has adopted. "The 'reasonable suspicion' standard, which is lower than both of these, is not used in either program."

Really?  Legal eagles are encouraged to chime in.

My take - thinking up scenarios where this eavesdropping could be illegal is child's play.  However, the market niche for hysterical handwringing about Bush and Cheney spying on our calls to the hairdresser has been nicely filled by Maureen Dowd.  So my question is this - just what might the NSA be doing that the career lawyers and officers there are convinced is legal?

Now keep in mind - folks can argue all day that habeas corpus is covered by statute, as well as long legal tradition.  Yet in the cases of Hamdi and Padilla the courts found wartime circumstances where Bush really can modify it.  That being so, why are we so sure that a court will never countenance a wartime modification of FISA?

On this theme, Hayden mentioned "hot pursuit", as did AG Gonzalez in his on-line chat at the White House.  At what are they hinting?  From my study of various crime dramas, I have the idea that certain rules about obtaining evidence are relaxed in a hot pursuit scenario.  So one guess is that the NSA program is relying on a "reasonable" standard in a "hot pursuit" context, which would not consistently satisfy the FISA standard of "probable cause".

Let's note the precision in the talking points:

Gonzalez: This is not about intercepting communications between people in America, it's about the "hot pursuit" of international communications involving someone we reasonably believe is associated with al Qaeda, where one of the parties to the communication is already in the United States.

Hayden: This is targeted and focused. This is not about intercepting conversations between people in the United States. This is hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda. 

ONE MORE:  If the program was this simple, and the problem was this simple, why couldn't Sen. Rockefeller articulate his concerns without the aid of his staff?

OTHER VOICES:  Knight Ridder picks up the story; Mark Coffey has thoughts, as does Jeff Goldstein in an update.  We do seem to be coagulating around similar points - whether that is reassuring or unnerving is too soon to tell.

STILL MORE:  Here is AP coverage from 2002 of the DeWine proposal:

Senators propose easing standards for surveillance of foreigners

WASHINGTON – The FBI could face fewer legal obstacles to spying on foreign terrorist suspects in the United States under two Senate proposals.

Lawmakers say they are trying to eliminate barriers that may have prevented the FBI from aggressively investigating Zacarias Moussaoui after he was arrested a month before the Sept. 11 hijackings. Moussaoui has since been charged with conspiring in the attacks.

Civil libertarians and legal analysts question whether the proposals are constitutional.

Under a bill submitted last week by Sen. Mike DeWine, R-Ohio, authorities wouldn't have to offer as much proof that a foreigner was linked to terrorism in order to place wiretaps and conduct secret searches.

"It would be a major change," said Gregory Nojeim, associate director of the American Civil Liberties Union's national office in Washington.

...

FISA has received more attention in recent weeks because of revelations that FBI agents in Minnesota had been denied permission from headquarters to search Moussaoui's laptop computer after he was arrested on an immigration charge. Headquarters had determined there was insufficient evidence to show that Moussaoui was an agent of a foreign government or organization.

FBI Director Robert Mueller told lawmakers this month that the bureau is "looking at ways to tweak" FISA to address the problems in the Moussaoui case.

Sens. Jon Kyl, R-Ariz., and Charles Schumer, D-N.Y., have proposed eliminating the requirement that a foreign terrorism suspect be linked to a foreign power. The standard would remain place for U.S. citizens and permanent residents.

That change could be challenged in courts, said Stewart Baker, who was general counsel for the National Security Agency in the early 1990s. He said FISA was conceived after a Supreme Court ruling that suggested intelligence gathering aimed at foreign powers or organizations shouldn't be subjected to the same kind of constraints placed on regular domestic surveillance.

"There is a risk if you take group membership out of it, that it's a bridge too far for the courts."

Both bills have been referred to the Senate Intelligence Committee...

And here is a 2002 Weekly Standard article that does not appear to have stood up well.  The author makes the useful point that FISA relates to courts and evidence-gathering, not war-fighting.  But here is the excruciating bit:

In other words: The FBI might quite reasonably have pursued Zacarias Moussaoui last August, FISA notwithstanding, but did not. One year later, a mainstream, hardly crazy, civil-liberties-respecting Bush administration might at very least be asking Congress, also quite reasonably, to relax FISA's "probable cause" strictures--so that future Coleen Rowleys can snoop on future Zacarias Moussaouis without "violating" a law that likely isn't constitutional anyhow. But the Bush administration isn't doing that either. Republican senator Mike DeWine has proposed such an amendment to FISA, and even Democrats like Pat Leahy say they're open to the idea. Leahy's is too rough a constitutional sensibility for George W. Bush and John Ashcroft, though. At a hearing last Wednesday, CIA and Justice Department representatives told the Senate Select Intelligence Committee that DeWine's idea was inconsistent with the administration's vision of the Fourth Amendment.

News flash: Our president and his attorney general are, if anything, oversolicitous of the (imaginary) civil liberties of their war-on-terrorism POWS. But don't hold your breath waiting for the newspapers to notice.

Oh, well - I'm sure there is stuff in my archives that I would rather leave there.

 

Comments

[eli]

#1 looks like a reason to expand the DeWine amendment... not oppose it. It especially doesn't seem like a reason to oppose based on the position that probable cause is not a hinderance at all, or that the Patriot act had by itself made us plenty nimble to track terrorists.
#2 is nice... for minimalism. There certainly were/are folks in Justice saying there's plenty of legal justification for the program.
but:
a. That couldn't have been near unanimous in light of the difficulty they've had convincing legal scholars so far.
b. Some of the reasons for this hesitance are non-trivial... one example: if the War Authorization was really that broad, the justifications for the Patriot act (and renewal) seem forced. If the Prez has the power- he just does... he can even amend congressional law on the fly. Why all the debate?
c. CYA... get authorization to put him at the peak of his war powers... and eliminate confusion. There's nothing super secret about anything if this is really all targetted and not some super fancy net... the lowering of the legal standard won't tip Qaeda off any more than publicly passing the Patriot Act.
#3: I don't seee a check... someway to stop a slippery slope, if there's no Congressional or Judicial oversight. If we're going to strain the straightforward meaning of the 4th amd... should we at least allow for some check?

[clarice]

I'd like you to show me a single major legal issue in which their is unanimity among legal scholars.

[eli]

fair enough... but this one seems especially difficult... See: Congressional research Service Report, etc.

[clarice]

Read about the author--a Kerry contributor with substantial ties to the Dems. Recognize that CRS is not unbiased but is speaking for one branch in a dispute about the powers between two branches.

[eli]

to put a finer point on the risk... imagine (shudder) that Hillary wins in8 08, and al qaeda does a Beslan style rampage with small arms (automatic kits, and the like).

wouldn;t you want the precedent to be clear that the AUF Resolution didn't supercede all gun law, and previous interpretations of the 2nd amd.?

[clarice]

As for the rest, take your time and read all the way thru this and related threads. We've debated these issues at some length..and there are some very smart people who've discussed this here.

[eli]

Not all dems are all wrong all the time... and there are plenty of repub's who are uesy abou this... Bob Barr being the most vocal... but including some on the judiciary.

The point was just that this isn't a slam dunk... the other points were more meaty.

[Jonathan]

How could anyone seriously think one has to look hard to explain why the NSA surveillance is illegal. The above ramblings are fairly pointless. FISA is clear that warrants are required. The Bush administration, including Ashcroft, knew this. It is the Bush administration that is attempting to contrive reasons why warrantless eavesdropping is legal.

[eli]

I looked through the other posts....it looked mostly like political arguments. dem bashing and the like. While good fun, it doesn's sort the legal terrain too well.

[eli]

I doubt seriously they would do it if they didn't think it was defensible. Maybe they were wrong... but this is a grey areas at best. They violated FISA pretty clearly, the question is just how relevent FISA was after 9/11 and the AUF.
Which is very complciated.

[eli]

I also think the 4th amd questions are serious, and tricky. The AUF can't supercede the 4th... and as Americans we just have those rights.
I haven't seen much beyond statutory discussion.

The General asserts a reasonability standard... but I havent seen much of substance after that.

[clarice]

Well, I'm afraid it's about 3 a.m. here, and while I don't want to seem rude, I am too tired to repeat what has already been well argued by others.

[David Walser]

eli - Allow my to briefly summarize several of the points on why the NSA program as we currently understand may not clearly violate FISA or the constitution:

• FISA requires a warrant if a US person is the TARGET of the surveillance. If the target of the surveillance is the non-US person, a warrant is not required. For example, if we have the cell phone number of someone in Germany we believe is associated with terrorists, listening in on a conversation with that person and someone in San Diego is permissible without a warrant under FISA if the goal is to learn more about the person in Germany. It's not until we desire to know more about the person in San Diego that FISA would require a warrant to start monitoring that person's calls. This is similar to the situation where the FBI has a warrant to tap Tony Soprano's phone. The fact we don't have a warrant to tap the local butcher's phone does not mean we cannot listen in when Tony calls the butcher to place an order. If, however, something in that call causes the FBI to have an interest in the butcher, a new warrant would need to be issued before the FBI could tap the butcher's phone.

• Even if FISA would otherwise require a warrant to do what NSA is doing, the AUMF operates to remove FISA's requirement for a warrant. This exemption is within FISA itself and is activated whenever Congress authorizes the President to conduct warrantless surveillance. The Administration argues that AUMF gave him that authority, automatically suspending FISA's warrant requirements. Administration critics argue that FISA's exception cannot be activated without Congress specifically mentioning FISA in the statute granting the President the authority to conduct surveillance and/or specifically granting the authority to surveil. Since the AUMF said nothing specifically about wiretapping or FISA, the critics argue, the AUMF could not have triggered FISA's exception to its warrant requirement. However, on a very similar question, the Supreme Court in Hamdi ruled that Congress through the AUMF did grant the President to violate a specific federal statute even though the AUMF did not mention the statute or the topic of the statute in question. (A federal statute forbids the detaining of persons without Congress otherwise granting permission, by statute, to detain the person. In Hamdi, the Supreme Court said that AUMF granted the President the power to detain combatants since the AUMF granted the President the power to use military force and that the power to detain is a well understood subset of the power to use military force. The Administration argues that the ability to gather information about the enemy is a well understood subset of the ability to use military force.)

• The Administration could not have gotten warrants under FISA "just to be safe" even if it had wanted to waste its time and resources on what it did not believe was required by law. The reason for this, FISA requires probable cause and the named identity of the target before a warrant can be issued. If all NSA has was a Pakistan phone number found in the rubble of some cave in Afghanistan, NSA may not have either probable cause nor the identity of the target to obtain a warrant. Note, too, even if DeWine's amendment to FISA were to have passed, the FISA court could NOT have issued a warrant on the basis of "reasonable suspicion" without violating the Constitution's requirement that warrants ONLY be issued upon probable cause. The warrant would not have violated FISA (after amended by DeWine's proposition), just the Constitution.

• Even if FISA would have required a warrant (and that requirement was not waived by virtue of the AUMF), NSA's actions would still be lawful. This is because, according to the FISA Court of Review, FISA cannot "encroach" on the President's "inherent authority" under the Constitution to conduct warrantless surveillance for foreign intelligence purposes. To the extent FISA tries to encroach on the President's authority under Article II of the Constitution, FISA is unconstitutional.

• The NSA program does NOT violate anyone's 4th Amendment protections. The 4th Amendment does NOT require warrants for searches. It requires searches to be "reasonable". In time of war, it has long be felt "reasonable" for the government to spy on its enemies without first obtaining a warrant. So, too, has it been found reasonable by several courts for the government to conduct searches without obtaining a warrant if those searches were for foreign intelligence purposes (as opposed to law enforcement purposes). While these cases pre-date FISA, they don't predate the adoption of the 4th Amendment.

As I said, this is only a brief summary of only a few of the arguments for why many do not consider the NSA program to be "clearly" unlawful -- all without bashing a single Democrat.

[davod]

There is not a simple answere to every question in the universe. YOu cannot legislate for every possible circumstance. I bet there are terroists now working on codewords that they will use when calling someone in the US. Codewords the person in the US will use to call someone else already located in the US. All the while we will be waiting for a FISA warrant because we are now talking about in country communications.

If this wasn't so serious it would be laughable.

[kim]

Not complicated. DeWine oopening a loophole would have closed several others.
===============================================

[TM]

The AUF can't supercede the 4th... and as Americans we just have those rights.

Look, I am a big fan of the Bill of Rights, and I'm not rooting for an imperial Presidency (the Hillary-Beslan analogy is on my "To Steal" list", but the short answer to the 4th Amendment question is, ask Padilla or Hamdi.

Or as another obvious example - our troops are conducting warrantless searches all over Baghdad; the NSA may believe they have similar latitude when engaged in "hot pursuit" on the electronic battlefield.

Obvious example - a semi-hot phone in Kabul calls NYC (in Kabul, a phone booth was used to call the 9/11 terrorists, IIRC).

One minute later, before any tapes have been translated, the NY number dials Bonn.

Does the NSA have enough to go to the DoJ for a 72 hour pass with a "probable cause" standard? Based on what?

But don't you think they want to tape the call?

Well, my point is only partly responsive - one might still wonder why they did not seek a FISA amendment. However, given the intriguing wording of the 4th Amendment, it may be that the reasonable suspicion hot pursuit standard is not enough for a formal warrant.

The 4th:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[Dwilkers]

I think part of the dispute revolves around assumptions of what the program is and how it works. From the beginning we've been unclear about it and assumptions and guessing were rampant. We talked about huge data mining programs, voice recognition and keywords, etc. Hayden flatly said that was hooey.

What they keep pointing at and repeating are "hot pursuit" and "targeted". Hayden was quite clear about this in his talk. It isn't a broad program sifting through millions of phone calls using VR or data mining. It is focused specifically on known or suspected AQ communications directly into the US.

All the talk about FISA is missing the point of what they're saying I think. FISA lays out how the US government should approach espionage investigations - IE, how they can pursue people in the US suspected of acting on behalf of a foreign power illegally. It talks about "target(s)" of investigation in the US, and they've said repeatedly they aren't targeting people in the US with this program. They're saying it is only being used in hot pursuit of the enemy.

That would seem to create problems in any future prosecution of a US person who was charged with a crime as a result of being identified as AQ through the program but if I understand what they're saying they aren't concerned with that. They are trying to intervene to prevent attacks.

[Huggy]

The arguments boil down to:

1) The NSA program is reasonable but is/should be illegal. Not a winner for the Democrats. They have to find some way to negate the reasonable part.

2) Hillary might abuse it. Why would she need the NSA when she already knows how to corrupt the FBI?

[kim]

I'll go back to an old analogy, why is the cop on the beat not trespassing when he goes God knows where in hot pursuit?
====================================

[kim]

I am convinced, that 'reasonable' is the operative, in fact only necessary, part of the amendment, but I can see, also, that there is the implication that the garnering of the warrant requires that the reasonableness of the search be articulated. There is the rub: the articulation of the reasons. Must they be spoken, and if spoken destroy the effectiveness of the search? Where is Xeno when we need him?
========================================

[kim]

eli, 'reasonableness' is the catch on the slippery slope. That must be shown, perhaps retroactively in certain instances, like the instant one, for instance.
=======================================================

[TM]

I have modest hopes of putting these into the post, if/when TypePdad comes back:

STILL MORE:  Here is AP coverage from 2002 of the DeWine proposal:

Senators propose easing standards for surveillance of foreigners

WASHINGTON – The FBI could face fewer legal obstacles to spying on foreign terrorist suspects in the United States under two Senate proposals.

Lawmakers say they are trying to eliminate barriers that may have prevented the FBI from aggressively investigating Zacarias Moussaoui after he was arrested a month before the Sept. 11 hijackings. Moussaoui has since been charged with conspiring in the attacks.

Civil libertarians and legal analysts question whether the proposals are constitutional.

Under a bill submitted last week by Sen. Mike DeWine, R-Ohio, authorities wouldn't have to offer as much proof that a foreigner was linked to terrorism in order to place wiretaps and conduct secret searches.

"It would be a major change," said Gregory Nojeim, associate director of the American Civil Liberties Union's national office in Washington.

...

FISA has received more attention in recent weeks because of revelations that FBI agents in Minnesota had been denied permission from headquarters to search Moussaoui's laptop computer after he was arrested on an immigration charge. Headquarters had determined there was insufficient evidence to show that Moussaoui was an agent of a foreign government or organization.

FBI Director Robert Mueller told lawmakers this month that the bureau is "looking at ways to tweak" FISA to address the problems in the Moussaoui case.

Sens. Jon Kyl, R-Ariz., and Charles Schumer, D-N.Y., have proposed eliminating the requirement that a foreign terrorism suspect be linked to a foreign power. The standard would remain place for U.S. citizens and permanent residents.

That change could be challenged in courts, said Stewart Baker, who was general counsel for the National Security Agency in the early 1990s. He said FISA was conceived after a Supreme Court ruling that suggested intelligence gathering aimed at foreign powers or organizations shouldn't be subjected to the same kind of constraints placed on regular domestic surveillance.

"There is a risk if you take group membership out of it, that it's a bridge too far for the courts."

Both bills have been referred to the Senate Intelligence Committee...

And here is a 2002 Weekly Standard article that does not appear to have stood up well.  The author makes the useful point that FISA relates to courts and evidence-gathering, not war-fighting.  But here is the excruciating bit:

In other words: The FBI might quite reasonably have pursued Zacarias Moussaoui last August, FISA notwithstanding, but did not. One year later, a mainstream, hardly crazy, civil-liberties-respecting Bush administration might at very least be asking Congress, also quite reasonably, to relax FISA's "probable cause" strictures--so that future Coleen Rowleys can snoop on future Zacarias Moussaouis without "violating" a law that likely isn't constitutional anyhow. But the Bush administration isn't doing that either. Republican senator Mike DeWine has proposed such an amendment to FISA, and even Democrats like Pat Leahy say they're open to the idea. Leahy's is too rough a constitutional sensibility for George W. Bush and John Ashcroft, though. At a hearing last Wednesday, CIA and Justice Department representatives told the Senate Select Intelligence Committee that DeWine's idea was inconsistent with the administration's vision of the Fourth Amendment.

News flash: Our president and his attorney general are, if anything, oversolicitous of the (imaginary) civil liberties of their war-on-terrorism POWS. But don't hold your breath waiting for the newspapers to notice.

Oh, well - I'm sure there is stuff in my archives that I would rather leave there.

 

[kim]

Under siege, keep as many loopholes open as possible, and prudent. Oh yes, reasonable, too, for the pensant.
===========================================

[Wonderland]

Tom, your statement,

"Yet in the cases of Hamdi and Padilla the courts found wartime circumstances where Bush really can modify it,"

is questionable at best. The Hamdi case is the Hamdi case -- the guy was taking up arms against US forces in Afghanistan, was captured as enemy combatant, and the court ruled that the could be held without charges for the duration of hostilities.

You'll notice that the Administration has done backflips through hoops whiel spitting wooden nickels to avoid SCOTUS review of the (highly deferential and conservative) 4th Circuit's Padilla decision, which is astronomically different because, in that case, an American citizen was arrested in a civilian airport inside the US.

This is because they know they will lose the Padilla case -- maybe 9-0, but more likely 7-2 (with Thomas and Roberts on the Executiev power side -- remember uber-conservative Scalia dissented in Hamdi). And an overwhelming losing Padilla decision would cause, among other things, extremely serious problems for their reliance on Hamdi in support of the NSA program.

Moreover -- there is plenty of language in Hamdi that works against the Administration's position as well; notably, SCOTUS saw a clear role for the courts in determining, at the very least, whether the factual basis of his detention held water. In the NSA program, the courts have no "gatekeeping" role whatsoever.

Bottom line, it's highly speculative to rely on those cases as support for the NSA program, insofar, at least, as that program targets US Persons in the US.

[Confederate Yankee]

Glen Greenwald is much better versed in law, than most of us, but he still jumps the shark regarding DWeine.

The Adminstration clearly believes that they have the authority under the Executive's Article II Powers and the AUMF to carry out his executive order to the NSA.

The fact that the Adminstration rebuffed Dewine's bill does not weaken the President's position, it actually reinforces the consistancy of his position.

Only if they had supported Dewine's bill would they have weakened their case.

Once again, this appears to be a case of ideology driving interpretation to draw a 100% wrong conclusion.

[boris]

Bottom line, it's highly speculative to rely on those cases as support for the NSA program

At least there are cases to support the admin position. The "W is a scofflaw" position lacks cases, facts, logic, and credibility, yet off it goes balls to the wall 24-7 like BDS on drugs.

[TM]

Bottom line, it's highly speculative to rely on those cases as support for the NSA program, insofar, at least, as that program targets US Persons in the US.

Well - I'll accept your point that the cases may not hold up (did I link to the Dec ScotusBlog post where the 4th Circuit ripped the Admin for trying to keep the Padilla case away from the Supremes? I meant to defer that for now, since I am highly confident that I am not following this - the 4th Circuit upheld the designation of Padilla as an unlawful combatant, but the Supreme Court is expected to reverse that? Maybe I need a moratorium on late-night blogging.

Anyway, the Admin clearly *is* relying on Hamdi, although they could not have been in 2001/02 when they started doen this road.

Well - the court may need to see a lot more facts to decide just what constitutes a "reasonable" tap, or hot pursuit.

[Wonderland]

Yank:

"The fact that the Adminstration rebuffed Dewine's bill does not weaken the President's position, it actually reinforces the consistancy of his position.

I see what you're saying -- they didn't need Congress to lower the standard, because legally they had power to do it themselves -- but I can't see how this revelation helps the Adminstration.

One thing Tom and I agree on is that this is going to come down to a battle between Congress and the Executive. And there's no way that Congress could view the DeWine amendment episode as anything but duplicitous behavior on the part of the Administration. Stuff like this may reinforce the constistency of blogospheric legal arguments defending Bush, but it does nothing to help Bush's aides when they have to answer nasty questions from Arlen Specter and Pat Leahy. In the end, if Congress is spoiling for a fight with the President, it will always win.

[Kman]

Let me briefly address your two of your three points in reverse order:

(2) The Administration might have felt comfortable that its current legal foundation was solid, and taken guidance from a familiar adage - if it ain't broke, don't pass legislation that muddies the waters.

Fortuntaely, we don't have to guess about what the Administration "felt". Glenn Greenwald linked to the Statement offered by the DoJ as to why the Administration was rejecting the proposed Amendment. The reasons, in a nutshell, were:

(1) doubts about the constitutionality of a lower standard; and

(2) a belief that it would actually work to the detriment of capturing and prosecuting suspected terrorists

In other words, the Administration's position 3 years ago was that relaxed standard of "reasonable suspicion" was likely unconsitutional (from a legal standpoint) AND counterproductive (from a "war on terrorism" standpoint).

That's the direct opposite of what the Administration argues now -- that the relaxed standard is constitutional and absolutely vital.

Now, there's much more to discuss on this issue, but -- whether you support the NSA program or not -- can we at least agree that there is a huge and difficult-to-reconcile difference here?

(1) The DeWine Amendment only lowered the threshold for non-US persons, which would not have solved the eavesdropping problem as it related to US persons.

And the Bush Administration doubted the constitutionality of the DeWine Amendment.

Are you suggesting that the Bush Administration thinks there should be a higher "probable cause" burden when it comes to tapping conversations of non-US persons, but it's fine with a more relaxed legal standard when it comes to US persons?

That doesn't sound right to me.

[kim]

Kman, under (2), it was only the DeWine specific relaxed standard they objected to, not all. Important slurring there, by you, my man.
=========================================

[kim]

The loopholes. Look to the loopholes, before your whole argument caves in.
===========================================

[boris]

Currently with a legal wiretap on the local crime boss the FBI can monitor his call to the out of state hitman, alias Lefty Icepick, without also having a warrant on Lefty. Then the monitored content can be used to obtain a warrant on Lefty to monitor further communications with yet others.

That first call is the problem with FISA (and DeWine). Surveillance of overseas terror suspects IS ALREADY LEGAL. When they contact US parties the content of that communication is necessary information for obtaining FISA warrants. Lowering the standard for a warrent is irrelevant to the problem.

Every bit of admin press about the issue supports the contention that all further surveillance of the US party is done under FISA.

[Wonderland]

boris --

The Administration itself has on several occasions said that the NSA program is tapping international calls that are incoming and outgoing. Both. It's the outgoing tap that violates FISA.

[boris]

It's the outgoing tap that violates FISA

Since the example is meant to explain why FISA and DeWine are inadequate to the situation, your implausible correction is irrelevant. So it was Lefty Icepick who calls the crime boss. The content of the conversation is still fair game for acquiring a warrant on Lefty.

The notion that Atta has more 4th amendment rights calling OBL compared to Lefty Icepick calling the crime boss is preposterous. If that's how you interpret FISA then that's why FISA is frakked up.

[Anonymous Liberal]

Well - the court may need to see a lot more facts to decide just what constitutes a "reasonable" tap, or hot pursuit.

TM, I think your focus on the "hot pursuit" and reasonability questions is off the mark. It's puting the cart ahead of the horse. Those are interesting 4th amendment questions, but they are secondary questions. You don't even get to those questions unless you can find a way to get around the clear language of FISA. And the administration's arguments for getting around FISA are pathetically weak, particularly in light of this DeWine amendment story.

In other words, the administration must first demonstrate that FISA does not apply, which is an extraordinarily difficult argument to make. If, somehow, they manage to convince a judge that FISA doesn't apply, then (and only then) do we get to the question of whether this surveillance violated the 4th amendment, which is another very difficult argument for the administration.

[boris]

The 4th amendment does not apply to international calls.

[kim]

Someday, maybe, Boris.
=====================

[kim]

Don't misunderstand me, Boris, I'm not speaking of judicial activism; only a little matter of nation building. Someday ours mihght not be the only nation operating under our Constitution.
==========================================

[Sue]

For the last 3 days, I have heard, over and over, that FISA warrants were sought, and granted, when a US person became the target. When a US person called a number overseas that was being monitored, no FISA warrant was sought or needed to monitor the call. At least, that is the argument as I understand it. Whether a call from a person in the US to a suspect overseas needs a warrant. And FISA judges are issuing the warrants on persons in the US if and when they bomce the targets on the basis of these calls. The question becomes, was the probable cause obtained for the issuance of warrants obtained legally?

[Sue]

bomce=become

[TM]

In other words, the Administration's position 3 years ago was that relaxed standard of "reasonable suspicion" was likely unconsitutional (from a legal standpoint) AND counterproductive (from a "war on terrorism" standpoint).

...Now, there's much more to discuss on this issue, but -- whether you support the NSA program or not -- can we at least agree that there is a huge and difficult-to-reconcile difference here?

Well, we don't quite agree yet - it is the difference between making criminal cases and halting attacks. I interpet the Admin position as being, the DeWine amendment won't help us make cases *or* detect attacks.

One of the many things left unclear by Hayden is whether the intel generated by the NSA program is somehow cleansed and introduced into the criminal justice system, or whether they just use it to disrupt plots in other ways (and I don't know what that means - overseas arrests/kidnappings? Domestic surveillance and new evidence, which one might argue remains tainted?)

You don't even get to those questions unless you can find a way to get around the clear language of FISA. And the administration's arguments for getting around FISA are pathetically weak, particularly in light of this DeWine amendment story.

Fine, then Hayden needs to fire the three career NSA lawyers who OK'ed this. Who knew?

It's the outgoing tap that violates FISA...

It may be puzzling, but the idea is that the outgoing called targetted a US person (or resident, anyway), which makes it a no-no. The incoming call arguably targeted the foreigner, and the US person was incidental.

[eli]

David... good post.
A few notes:
On the statutory issue of FISA.
- there were clearly some target in the US, or they wouldn't have created a seperate non FISA track.
- if the AUMF authorizes everything that may happen in war, I don't know how to stop it. There's not even a reasonability standard in the authorization (that I know of) to stop the slippery slope. Scary. No joke, why wou;dn't it authorize reversing all congressional law on gun rights- of the Prez thinks the guns could be used by Qaeda.
- Why have the Patriot Act, if this is all inherent autohrity?
- They could have amended FISA easily to allow only phone numbers, and lessened the standard. No reason to go0 around a law instead of fixing it... except to undermine oversight... which is the one thing there is NOT in the status quo, but there would have been with an amended FISA. It would have likely had to go beyind the DeWine amd, but that's not a reason to oppose it, but to strengthen it.
- The inherent authority argument means the Patriot Act and everything else we've done are irrelevant for the same reason. If Congress can just be overtulled by executive fiat... then he can. If there are checks, there are checks. I prefer the checks version for the reasons I stated earlier.

On the 4th amendment:
- Reasonable standards are famously slippery and subjective. I don't know a ton about it... so I'll hold judgment for later.

[David Walser]

"In other words, the Administration's position 3 years ago was that relaxed standard of "reasonable suspicion" was likely unconstitutional (from a legal standpoint) AND counterproductive (from a "war on terrorism" standpoint).

That's the direct opposite of what the Administration argues now -- that the relaxed standard is constitutional and absolutely vital.

Now, there's much more to discuss on this issue, but -- whether you support the NSA program or not -- can we at least agree that there is a huge and difficult-to-reconcile difference here?" - Kman

No, Kaman, we cannot agree that there is a huge and difficult-to-reconcile difference. The DeWine amendment to FISA would have lowered the standard for obtaining a warrant under FISA to "reasonable suspicion" from "probable cause". The Administration argued at the time that the DeWine amendment would not have been Constitutional because the 4th Amendment requires probable cause before a warrant may be issued. This probable cause standard is required even if a warrant is NOT otherwise required by the Constitution itself but by a statute such as FISA. Since the Administration is bound by both statutory law and the Constitution, the fact that FISA said warrants may be issued under a reasonable suspicion standard should not have changed the behavior of the courts or the Administration in sticking to the higher standard mandated by the 4th Amendment.

Currently, the Administration is arguing that some of what NSA is doing does NOT require a warrant (under either FISA or the Constitution). The Administration claims they are seeking FISA warrants for all situations that the statute covers.

The earlier and current arguments are not inconsistent at all. If what NSA is doing does NOT require a warrant, there is no benefit from lowering the threshold for granting a warrant (even if that could be done under the Constitution). The Administration argues that FISA may cover more than it needs to, not that probable cause is too high a standard when a warrant is required by the 4th Amendment.

[Bill Arnold]

The other common part of the administration talking points all along is language like "believe is associated with al Qaeda" (italics mine)
The president has been a little sloppier with the language but that's his style. We still have no clarification (that I know of) from the administration on what exactly "associated with" means. Since automation is likely determining the interestingness of associations, revealing the details might be problematic, but not revealing the details is also problematic ... e.g. paranoia inducing.

[boris]

is whether the intel generated by the NSA program is somehow cleansed and introduced into the criminal justice system

Yes, there is support for this being the crux of the matter. Arguendo if a US party calls a targeted terrorist contact outside the country and get's monitored, they then become the subject of a FISA warrant based on the content of that initial call. The FISA warrant engages the criminal justice system in the US to deal with the threat.

[TM]

The Youngstown case would be relevant here - the arguement is that Congress has a hard time limiting the President's immediate war-making powers, such as intercepting enemy communications (or wiretapping). However, the President was not allowed to break a strike and open a steel to provide needed steel supplies - that was too far from normal war-making.

So, banning gun sales everywhere in the US? Never been done, doesn't look like a normal wartime activity, probably not allowable.

And there is *NO WAY* it could be done covertly, unlike the wiretap program, so public reaction would guide the final result.

(NOTE: *Maybe* it could be done covertly, for a little while, if the background check program was reset to reject all applicants. But lots of guns don't even require a check).

[boris]

However, the President was not allowed to break a strike and open a steel to provide needed steel supplies - that was too far from normal war-making.

And easy to thwart by simple denial of authority and refusal to cooperate. Less an illustration of SCOTUS control of the executive than judicial authority over the mill.

[David Walser]

eli - Thanks for the compliment. Allow me to try and respond to each of your points in turn.

"there were clearly some target in the US, or they wouldn't have created a seperate non FISA track."

Yes, from what the AG and the head of NSA have said, it appears that NSA sought FISA warrants whenever a US person of interest was identified and surveillance of that person was deemed necessary. The non-FISA track was NOT to get around FISA but the streamline the procedures for surveillance that was not covered by FISA.

"if the AUMF authorizes everything that may happen in war, I don't know how to stop it. There's not even a reasonability standard in the authorization (that I know of) to stop the slippery slope. Scary. No joke, why wou;dn't it authorize reversing all congressional law on gun rights- of the Prez thinks the guns could be used by Qaeda."

The Administration does NOT argue that the AUMF is a blank check. It's the Administration's critics that are making the claim that the Administration is treating the AUMF as if it were a blank check. However, if General Hayden's description of the NSA program is at all accurate, the NSA program is targeted and narrow in focus. Even the NYT's articles note elaborate legal reviews by DOJ every 45 days and other procedures to prevent abuse of civil liberties and make sure NSA stays within the law. These actions just are not compatible with the notion the Administration is operating as if it is not constrained by the law or Constitution.

Further, the Supreme Court has addressed the President's Article II power and the extent it may override Congressional power or oversight. For example, President Truman tried to take over steel production in this country using his power as Commander in Chief during the Korean war. This resulted in the Youngstown Steel case where the Supreme Court said the President's powers did not extend to purely domestic matters. Yes, steel production was important to the war effort, but that relationship was too tenuous to allow the President to take over an industry in order to manage a labor dispute in order to produce steel in order to make arms to ship to the military. In another case (the cite eludes me), the Supreme Court said the President's Article II authority did not allow him to spy without a warrant on US citizens for DOMESTIC security issues. (In this same case, the Court refused to opine on whether the President could or could not engage in such spying without a warrant for foreign intelligence purposes.)

So, while the AUMF gave the President broad powers with respect to the war, it did not give him the power to set the speed limit in the highways or to jail his political enemies -- and it's only his critics that claim the President thinks the AUMF does grant him such authority.

"Why have the Patriot Act, if this is all inherent autohrity?"

Because the Patriot Act covers domestic vs. international issues. As discussed above, the President's Article II authority does not cover domestic matters.

"They could have amended FISA easily to allow only phone numbers, and lessened the standard. No reason to go0 around a law instead of fixing it... except to undermine oversight... which is the one thing there is NOT in the status quo, but there would have been with an amended FISA. It would have likely had to go beyond the DeWine amd, but that's not a reason to oppose it, but to strengthen it."

Please see my prior posts. DeWine's amendment, to the extent it permitted warrants to be issued without probable cause, would have violated the 4th Amendment. Also, the Administration is claiming it is NOT going around FISA but that FISA does not apply for one reason or another. If the law says it's illegal for me to haul 2,000 pounds of cargo in my passenger car, I am not going around the law by carrying that same amount of cargo in a truck (that is rated to carry that large a load). If the Administration ALREADY has the authority to do what they are doing, they are under no moral or legal obligation to go to Congress for permission. This is not a game of "mother may I".

"The inherent authority argument means the Patriot Act and everything else we've done are irrelevant for the same reason..."

See above.

"On the 4th amendment:
- Reasonable standards are famously slippery and subjective..."

I've never said these are not complex issues. However, everything the Administration has done indicates a genuine desire to prevent abuses.

[eli]

Dave, (nice to have some substantive debate)
1.The first distinction you made, then, is out the window. It does violate FISA _if_ there are targets inside the US. We're back to probable cause, efficiency, and oversight as the reasons for the non FISA track. Everyone in the US os "covered by FISA." FISA prohibits their surveillance without a warrant.
2. I don't see any check in this interpretation of the AUMF... Of course they don't say "blank check." They are not drawing a line they can't cross though... not that I see. The only check would be the constitution... Any federal law could be circumvented by the AUMF and Art 2. What is the bright line I'm missing? The Youngstown stnadard, as you lay it out is no longer relevant, after 9/11. If terrorists can or could exploit some loophole in federal law (gun law e.g.)- that standards would no longer apply... even to US citizens. I don't know what would prevent him from jailing his political enemies, if he beleives them to be helping the enemy. Granted, the S Ct gave them a review of their status... but the admin. actually opposed that on roughly similar grounds as what we're discussing now. I think the S Ct will rule along similar grounds, if a case emerges that allows them to rule here. It's the same thing- sue process right to review of the grounds for their suspicion.
3. Is the partiot act about the international WOT or, no? I would be very surprised to see any evidence eof your distinction in the context of the legislative intent of this law.
4. "Please see my prior posts. DeWine's amendment, to the extent it permitted warrants to be issued without probable cause, would have violated the 4th Amendment."
If the DeWine (extended to include citizens) amd violates the 4th, I just don't see how the NSA program doesn't. Either it's a loose reasonable standard, or PC.
5. The distinction about what is and isn't covered by FISa is answered above... All citizens are covered by FISA... all of the reasons I saw in your first post have been answered (unless I'm missing something). I just don't see any evidence for this "gaps" understanding. Maybe that would be a good place to set me straight... then the rest may sort itslef out.

[eli]

The one fishy thing is avoiding any oversight. What oversight is there under the status quo? By courts? By Congress? Clearly our electoral power can be a check... but otherwise, I think the extremely broad interpr. of the AUF added to the use of Art 2 to authorize surveillance of US citizens is pretty sketchy. I don't think it's a well built program to prevent abuse... especially if you thin kabout the future precedents, and what could be done by an overzealous lefty Prez.