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January 26, 2006

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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.
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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?
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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?
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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.
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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">http://www.weeklystandard.com/Content/Public/Articles/000/000/001/529jnivf.asp?pg=2">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.
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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.
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kim

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

kim

Well, I certainly trust this President with the program, where I might not trust some other President.
=========================================

eli

Kim,
This is exactly the point. These legal issues of interpreting AUF, the 4th amd, and Art. 2 are not confined to this president at all. That's why oversight and accountability are necessary.

kim

Your standard is Clinton? It is clear that oversight is necessary for some. However, it is not beaming through to you that you are in the presence of people who understand that if they misuse the power, it will be taken from them.
===============================

maryrose

Whatever keeps us the safest is what should be decided upon. It should be set up so whoever is president will use it carefully and wisely. I trust the current president to do that and I hope I can trust future presidents as well. After all isn't that essentially what their oath of office is all about?

eli

Yeah... the whole, "trust the government" argument just doesn't do it for me. I think they should get broad latitude in wartime, but not without oversight- some Congressional and some Judicial.
If the next adminstration (or the one after that) is not fully on the up and up... wee need to have something to do about it.
Nixon should have taught us that oaths mean different things to different people...
Trust but verify.
What's missing right now is the verify part.

David Walser

eli - You are not seeing the distinction I am trying to make between surveillance that is an is not covered by FISA. That's most likely my fault. Let me try a different approach:

Before 1978, pre-FISA, the government had the legal authority to engage in warrantless surveillance for foreign intelligence purposes. The only limitation on this authority was the 4th Amendment's limitation on unreasonable searches. Because it was thought President Nixon (and others before him) abused this authority, FISA was enacted to require warrants and to impose other standards of due process above and beyond those required by the Constitution. However, despite what you may have read to the contrary, FISA does not "cover the waterfront" and require warrants for any and all wiretaps. The focus of FISA is on the electronic surveillance of US persons. Anytime a US person is a "target" of the surveillance, a warrant is required by FISA (even if prior to FISA no warrant would have been required). However, this leaves open the category of the electronic surveillance non-US persons. The government does not need a warrant under FISA to surveil non-US persons (unless a warrant would be required by the 4th Amendment). In the case of the targeting of non-US persons, we are in the pre-FISA state.

Thus, a very important question is who is the target of the surveillance? If it is a non-US person, FISA does not apply. Under FISA, this is not always an easy question to answer. However, the essence of the issue can understood by examining the hypothetical wiretap of Tony Soprano. Tony is a US citizen and the wiretap is not for foreign intelligence purposes, so FISA does not even apply. However, the 4th Amendment (and statutes other than FISA) do require a warrant to tap Tony's phone. Since the purpose of the wiretap is to learn more about Tony, the police can listen in to ALL his conversations. The police need not get a warrant to listen in to the non-Tony side of a conversation. However, at some point, the police may become interested in one of Tony's callers -- not for what they might learn about Tony but about the caller. At that time, the police need a new warrant to wiretap the new target of their surveillance. Substantially similar rules apply under FISA. It's only after a US person becomes the target of the wiretap that a warrant is needed.

In addition to the exception for surveillance of non-US persons, FISA also grants an exception for surveillance permitted by another statute. This is where, the Administration argues, the AUMF comes in and relieves them of FISA's warrant and other requirements. This does NOT permit the government to ignore the 4th Amendment (or any other non-FISA statutory requirements). Again, we are in the pre-FISA state.

So, where does your slippery slope take us? At worst, back to the pre-FISA state. This is not a world of unlimited executive power, unless that world existed before 1978.

eli

This just doesn't make any sense... on the last round we agreed that there are US persons under NSA surveillance right now- with no warrants because of this program. Right? So this just like the abuse that created FISA... pre-FISA world.
Foreign intelligence services spying on americans (who it believes to be a risk). Not the end of the world, but risky.
Except... this time FISA exists, and people are ok with the president violating FISA because of AUF... THAT is the slip slope... If a pres can use that resolution, combined with Art 2, to overrule the people's mandate (embodied in Federal Law).
Since there are no checks on the open-ended use of AUF, except that it be (in the president's judgment) relted to the safety of americans in the WOT... there is no check.
Two issues:
1. Warrantless taps (risky)
2. Balance of power (extremely risky)

David Walser

"on the last round we agreed that there are US persons under NSA surveillance right now- with no warrants because of this program. Right?" eli

No, eli, we did not agree to that. The Administration has said time and again that once a US person is a target of the surveillance they use FISA to obtain a warrant. It's only the Administration's critics who are claiming that NSA might be spying on US citizens absent a warrant. The AG and the head of NSA both made it clear that this was never part of the program.

As for your concerns about abuse, the potential clearly exists. So, too, does the potential for some local cop to abuse his authority and blow your brains out instead of giving you a traffic ticket. Whenever power is granted the potential to abuse that power is created. In this case, the NSA program has had (and continues to have) several layers of review: The DOJ's attorneys, NSA's attorneys, the head of NSA, and the AG all look at the program. When issues have arisen, the program has been shut down until any legal concerns have been addressed. In addition, the Administration has also regularly briefed members of Congress on the program. This seems, to me, a very reasonable compromise over the need for secrecy and flexibility when fighting a war and protecting our civil liberties.

As for the balance of power, Congress knows about the program. If they don't like it, they can defund NSA. The power of the purse, that's the traditional way for Congress to check the President.

eli

Do you have a citation or two on this... Google is failing me.
I can't find anything like that.

eli

And surely we want a check that's less severe than completely defunding our national security. If that's the only check, it's no check at all.

They can also passs laws, which are the law of the land, unless they encroach on Art 2. This is the whole purpose behind using the AUMF as a defense... if you were right, and the only check were funding- they wouldn't need to bother with the legal nicities.

boris

Good point that the histrionics about the NSA program being unchecked and unlimited is really just about AUMF dropping the system into pre-FISA mode wrt foreign intelligence.

boris

surely we want a check that's less severe

Who is "we"?

FISA has a 15 day warrantless surveillance exemption after AUMF with the expectation that if congress wanted to formulate a check it would do so in that time. That implies the executive order was acceptable.

Cecil Turner

Except... this time FISA exists, and people are ok with the president violating FISA because of AUF... THAT is the slip slope... If a pres can use that resolution, combined with Art 2, to overrule the people's mandate (embodied in Federal Law).

Seems to me the only on-point precedent is In re: Sealed Case No. 02-001. And that specifically holds that the President has Constitutional authority to conduct warrantless surveillance:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. [emphasis added]
The further contention, from the presumably well-informed FISA review court is:
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.
Now, I'm willing to allow that's not a SCOTUS precedent, and that it wasn't exactly the focus of the sealed case . . . but to blithely assert the opposite is true seems a bit presumptuous.

BurkettHead

eli said: "on the last round we agreed that there are US persons under NSA surveillance right now- with no warrants because of this program"

We don't know enough about The Program to agree to this. And what do you mean by "NSA surveillance?" Some NSA operative with headphones in a panel truck listening in on Christiane Amanpour's telephone conversations? NSA operatives watching the lights on the equipment blink as algorithms sift through pre-recorded calls without human intervention? Are we talking packet sniffing, data mining or good old fashioned eavesdropping? Or did you have something else in mind?

Bill Arnold

BurkettHead, (not speaking for eli), in this context I use "surveillance" as a proxy for non-traditional wiretapping: a person (a human working for the US government) listening to telephone conversations or even reading speech-to-text transcripts (recorded, realtime, doesn't matter). This may not be the current legal standard but it's a decent mapping from standards related to traditional wiretapping to the technologies currently available to the NSA.

So:
Some NSA operative with headphones in a panel truck listening in on Christiane Amanpour's telephone conversations? "wiretapping"
NSA operatives watching the lights on the equipment blink as algorithms sift through pre-recorded calls without human intervention? Not "wiretapping"
packet sniffing, Not "wiretapping"
data mining Not "wiretapping"
good old fashioned eavesdropping?"wiretapping"
[Some of these are problematic as well; they are just out of scope.]

David Walser - The Administration has said time and again that once a US person is a target of the surveillance they use FISA to obtain a warrant.
Citation please?

clarice

Judge Posner has written a refreshingly honest piece on the question-- http://www.tnr.com/doc.mhtml?i=20060206&s=posner020606

Bill Arnold

Clarice, this left-of-centery mostly agrees in tone (though not all the details) with Posner. Posner's bottom line is:
But, since the principal fear most people have of eavesdropping is what the government might do with the information, maybe we can have our cake and eat it, too: Permit surveillance intended to detect and prevent terrorist activity but flatly forbid the use of information gleaned by such surveillance for any purpose other than to protect national security.
I'd be ok with this if we had a clear legal standard for the meaning of "protect national security". Unfortunately, we don't have such a standard, and the AuMF (it is argued) authorizes special executive branch powers for a very long time.

Posner: The statute was enacted in 1978, when apocalyptic terrorists scrambling to obtain weapons of mass destruction were not on the horizon.
Says him. It was starting to be a staple of SciFi by that time, e.g. John Varley, "Bagatelle", (1976) ""I am rated at fifty kilotons," the bomb said with a trace of pride." (Quote stolen from google groups. The bomb in question had a human brain) Of course, the main threat in the 70s was the existential threat of the Russian thermonuclear arsenal, so normal people didn't worry about the (non-existential) threat of nuclear terrorism very much.

eli

boris:
- Okay... maybe "We". But I think a lot of us... including you want a check bedies de-funding. You wanted yours with 15 days, David was asserting that purse strings should be the (only) balance to the executive, which is just very extreme.
- But I still can't agree... the point was that even the 15 day requirement in FISA is irrelevent if the AUMF trumps all congressional mandates. That's why I'm concerned about oversight... because there's literally no constitutional federal law that couldn't be trumped along these lines in the name of the WOT, if we interpret the AUMF this broadly... including gun law and everything else.

eli

Cecil-
That precedent may even be controlling... my argument is not descriptive, but normative... I'm arguing how we shoudl interpret the Sep of Powers.
BUt still-
1. Those quotes don't seem relevant to US citizens.
2. The FISA court quote may be the fulcrum of the legal debate... If nondenominated Art 2 powers really do include domestic surveillance of citizens, there's literally no check whatsoever on Prez power... With that standard, I don't even know what would prevent tapping purely domestic calls with no warrant (so long as there was some possibility of foreign intelligence being involved... think 2 Qaeda suspects on cell phones in NY).

This is a very radical view, not even pushed in public by the adminstration.

eli

Burketthead is just right...
We simply don't know much about this program...
My premise was simply that we were going outside FISA for a reason... and there'd be no reason to at all if none of the targets were domestic (and if David's right that FISA only covers targets).
My guess is that we're talking about the actual monitoring of communications, once we've done the data mining to target some groups. I don't think many of these legal issues put much pressure on data mining.

clarice

Bill, I read Posner as saying that the program is okay for detecting terrorist activities in the US (wartime intel) and that if it's to be used for law enforcement, the Administration must go thru FISA and get a warrant based on probable cause to get any material it intends to use at trial. This, BTW, AJ Strata has been arguing for some time (based on the Administration's explanations) is precisely what we are doing.

Cecil Turner

My premise was simply that we were going outside FISA for a reason...

I'm not sure FISA applied in these cases . . . there are clearly some gaps in it. But I also tend to side with Posner: it's a matter of practicality as well as law. And if the program is to be effective, publicity is not the ticket. So a public reaffirmation of the "probable cause" standard (legally required by the Fourth Amendment in any event, IMHO) is perfectly sensible . . . and promotes confusion among our enemies. The tactic supports the strategy--good stuff.

eli

Posner is not convincing to me:
1. It makes a strict constructionist shudder. Law is simply a flexible framework for coming up with the policy goals one wants? Eh...
2. The real serious point made by serious (not hysterical) lefties is that this could be done within an adapted law. The only real answer to this I've seen is McClellan/Bush saying they don't want to tip our hand... But we tipped our hand on the Patriot act with some very specific provisions... and if the Prez was authorized by the AUMF, we never should have done that either.

Over all he seems to dodge the legal question by saying it's worth it, which begs the question of whether it's better to do it under uestionable legal authority, or solid legal authority.

eli

Yeah... I don't know if I buy Cecil's 'head fake' argument.

What are the gaps?
Didn't he fake out all of Congress that didn't get the briefings too?
And the American public? Personally, this seems like more of a post hoc rationalization than a realistic reconstruction of what they were doing. I think they thought Congress wouldn't go for it... some in the adminstration have said as much.

eli

The head fake argument also makes legislative intent for all future laws deeeeeeeeeeply problematic.
And also executive signing statements.
And it onpens the possibility of voting the Patriot Act down, so that executive orders can secretly do all the same stuff, as a head fake.

And on and on.

boris

15 day requirement in FISA is irrelevent if the AUMF trumps all congressional mandates.

Not the point and untrue. The 15 days is a grace period to allow congress to make alternative measures. It's a built in transition period. here's the sequence:

Attack on 911 ... AUMF ... 15 days for congress to act ... executive order takes effect.

Since congress did not act the executive order goes into effect by default. The 15 days simply demonstrates the anticipation IN FISA that wartime circumstances would require special treatment.

The AUMF trumps everything argument is just lame and stale. Enemy surveillance is a fundamental aspect of war which AUMF authorizes.

eli

Not lame... not stale.
Disarming the opponent is a fundamental part of war.
President Obama bans gun shows, and points to the AUMF.
I don't see why your 15 days argument doesn't apply.

I thought you were talking about a similar provision of FISA... but this argument doesn't help either.

The right way would be to establish a bright line of what is in and what is out of the authorization... the S Ct couldn't do it in Hamdi... and I've yet to see anyone try.

If it's going to be able to supercede all other acts of congress... this isn't stale at all, it's crucial.

eli

Not to mention that there's exactly no review of whether the enemy is who's getting surveilled. That's exactly the point of FISA... Hamdi made clear that review of enemy combatant status was essential, so the executive wouldn't be the sole arbiter of whether detention was a part of the WOT, or something else.

That's the review that's being skirted, so saying "enemy surveillance" begs the question.

boris

no review of whether the enemy is who's getting surveilled

Kinda silly. The enemy does not get due process. We can shoot them, capture them and surveil them without permission, oversight, or judicial review. It's called war.

If they're talking to someone in the US who might also be the enemy, well that's the breaks.

eli

Come come Boris... read Hamdi...
Your argument is a perfect circle.
You've got not right to a review of your status...
why not?
because you're linked with al qaeda. prove it!
I don't have to because you're linked with Qaeda.

It's not silly, it's called the Rule of Law. I believe it's central to what we're fighting for.

You can't say I'm an enemy combatant without a review (that's the law of the land). Why? Because we don't know if you're the enemy or not until there's a review. Your version would leave no substantive due process to an innocent citizen who was mistakenly surveilled. Because the whole fantasy of their collusion is what the review would be about.

Your argument seems based more on emotion than reason.

boris

Your argument seems based more on emotion

Shark jump.

eli

shark jump... I don't know what you mean... I just don't think "It's called war" is a very well thought-out reason. I wasn't trying to get personal. You can't throw up your hands at the Rule of Law in a battle for civilization, and then defends yourself with either:
- it's war
or
- shark jump.

I was maybe being too frank.
My bad.

eli

And I do think it's relevant.
Lots of public policy mistakes are made because emotion outpaces reason.
Brady Bill anyone?
How 'bout the welfare state?

dblaiseb

I love checks. And balances.

But someone's got to show me to the body of water that will allow a judge or legislator to make like a pedestrian in the natatorium before I agree that s/he gets to dictate (on a relatively tactical level) to the executive the prosecution of a war that the people, through Congress, have said exists.

I thought it was both reasonable and clever that the administration points up the AUMF. If Congress, expressing the will of the people, decides to amend the AUMF to take into account popular sensibilites concerning this policy, well...then we have a bona fide constitutional crisis on our hands.

If a brightline rule is what's needed, how about no criminal prosecutions except in compliance with FISA, or an updated and improved version of the statute? And I agree that this is an open question through February of 2006.

Cecil Turner

Didn't he fake out all of Congress that didn't get the briefings too?

Yep. How many congressmen were read into "Magic"?

The head fake argument also makes legislative intent for all future laws deeeeeeeeeeply problematic.

Not if the Executive had the authority under Article II.

You can't say I'm an enemy combatant without a review (that's the law of the land).

Citizens get a review (and obviously can be held in the interim). And that's a relatively recent wrinkle, brought on in part by the nebulous nature of the WOT. Up to that point it was an executive determination per Quirin.

President Obama bans gun shows, and points to the AUMF.

If opponents have a Second Amendment argument, fine. If they're relying on legislation, it's a question.

It's not silly, it's called the Rule of Law. I believe it's central to what we're fighting for.

As long as you don't make it impossible to win, fine. But don't get carried away . . .

eli

That's a decent brightline... although the poison tree problem probably makes it unnaceptable.

For several terrorists we're ONLY prosecuting them for insubstantial crimes, BECAUSE we were less than solid in how we collected evidence.
Why not just amend FISA, and make it all legal. Then we can use it for whatever we want.

dblaiseb

Better make that 2/07 and the next Congress. My check book entries are a mess until at least March of any given year with respect to dates, too.

eli

This:
"Citizens get a review (and obviously can be held in the interim). And that's a relatively recent wrinkle, brought on in part by the nebulous nature of the WOT. Up to that point it was an executive determination per Quirin."

Is not true after Hamdi... even the jerk we pick up in Afghanistan get a review for his status.

eli

I still think we can do all of this through a FISA revision...
This is a debate about the Law, not about our tactics.

dblaiseb

eli,

If you have a "fruit of the poison tree" situation where someone is deprived of liberty because of what the NSA is doing, you really must present this person as an example of the abuses resulting from this policy.

You might win a whole bunch of seats in '08 as a result. I would be very interested to hear all about it.

Got one?

eli

If Obama can reenact restrictions on guns that Congress abandoned... we've gone too far with this use of AUMF. Period.

eli

dbliseb.

Not a fair trick... it's all of course very secret... so an appeal to ignorance isn't logically valid.

I'm more talking about avoiding the difficulty these situations present to our annihilation of Qaeda...
Like if we can't present our evidence on Moussaui, for example, because we got it from the non FISA route... Why not just fix FISA, and use the tapes to nail the SOBs in court (excuse my inelegant language).

I'm not making a civil rights argument here, but a law enforcement argument.

eli

We shouldn't over-zealous ourselves right out of victory.
We've chosen legal frameworks for stopping some of these folks... SO let's nail 'em good.

Tom Maguire

President Obama bans gun shows, and points to the AUMF.

Well, I am so pleased with my earlier point that I will repeat it - Obama can't do that covertly. And if there is a resultant hue and cry as Congress and the courts get involved, he won't be able to do it at all.

I can't read the Posner piece, but based on the comments here, he is making a point similar to one I made in the post (disrupting plots versus making criminal cases).

He also alludes to something I have been thinking on this oversight question. Suppose, in extreme circumstances (such as 9/11) the President decides to go beyond the Constitution. He manages to find sympathizers at the NSA, so together, they willfully break the law and wiretap away, listening to Howard Dean, MAureen Dowd, at al.

As long as they simply keep whatever they learn to themselves, there is no opportunity for any kind of formal oversight; a whistleblower could rat them out, but otherwise, who would know?

It is only if they tried to, for example, use the courts - e.g., arrest Dowd for being insane, based on their wiretap evidence - that oversight would occur, when a court threw the case out.

So in one sense, if the Pres and the NSA are committed to spying without bringing cases, we are pretty much left to whistleblowers to tell us about it. But I doubt amending the law would solve anything in that sort of lawless environment.

eli

Okay... then a national gun resgustry, and personal tracking of gun owners... or a production ban with non-discolsure agreements... etc.

eli

Tom.
Youza!
This reasoning is scary... but perhaps doesn't much guide legal theory or policy. They could kill Dowd, fake her suicide... etc. but they are forbidden from doing so... even though we might never know.
It's a regulative ideal.
We build the best world we can in law... not a perfect one, but the best we can.

dblaiseb

eli,

Not to resurrect a pathetic chickenhawk argument, but are you serving warrants of arrest in a Yemeni souk or a Moluccan madrassa? Do you have a Brooklyn mosque on Atlantic Ave. in your repetoire? Otherwise, I'm not predisposed to speak with you of sneaking and peeking into calls or chats between AQ and US persons in a "law enforcement" context.

However, I'm all ears if the next congress in opposition to the policy decides to make a move that goes beyond handwritten letters leavening the darkness of an office safe.

kim

Inevitably, power misused is lost. Who'd want to do that. Apparently(?) not this administration.
========================================

Cecil Turner

Is not true after Hamdi... even the jerk we pick up in Afghanistan get a review for his status.

Are you saying an enemy combatant who is not a US citizen is also entitled to a review? Because I don't think you can get that from Hamdi:

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. [emphasis added]
If Obama can reenact restrictions on guns that Congress abandoned... we've gone too far with this use of AUMF. Period.

Oh nonsense. If it's a matter that requires legislation, Congress is in charge. If it's a warfighting issue, the President leads. Because you picked an interstate commerce scenario, Congress would clearly be in charge. The same does not hold true for enemy comm intercepts in wartime.

kim

For all the folderol, eli, you are seriously full of something. First all the phony concern that a power like this not fall into the hands of a lefty president. Now you emote ersatz needs to put our enemies under our criminal justice system. What? Is that because they are inadequately protected under the Geneva Conventions?
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