Whither The NSA Warrantless Surveillance?

The Anon Lib made a good point a few days back about the limited significance of the Lanny Davis endorsement of the NSA warrantless surveillance program.  His gist - even if it is well designed to protect our privacy, it is still not in compliance with FISA.  I push back in his comments, and now the WaPo has more on the likely fate of the program:

The Bush administration is unlikely to allow the incoming Democratic majority in Congress to learn details about its domestic spying program and interrogation policy, a Republican senator said on Thursday.

Senate Judiciary Committee Chairman Arlen Specter of Pennsylvania, who has criticized the Bush White House's secrecy about national security issues, said he would welcome detailed congressional oversight of the National Security Agency's warrantless eavesdropping.

"It would be ideal," said Specter, whose committee was blocked by the administration this year from conducting a full review of the program, despite an outcry among some lawmakers that the spying was illegal.

"We have to really get into the details as to what the program is, as to how many people they are tapping, what they're finding out," he told an American Bar Association conference on national security.

But he said he had "grave reservations" that Congress would end up getting the information from the administration.

...

Now, after victory in the November 7 election, Democrats will take control next year and are vowing to press the White House for greater cooperation on domestic spying as well as the CIA's detention and treatment of terrorism suspects.

"Only then, can we conduct thorough oversight of these programs and determine whether they are legal," Sen. John Rockefeller, incoming Democratic chairman of the Senate Intelligence Committee, said in a recent statement.

I am leaning on the fact that Rockefeller is unwilling to state that the program is not legal - doesn't he read the blogs?  [Or, one cup of coffee later, let's note that he may be shrewdly insulating himself from the charge that he has pre-judged any hearings.]

My Bold Prediction - the fate of the NSA program will mirror that of the detainee bill: look for Dem huffing and puffing and hiding.  Eventually, somethig will be passed that lets Dems pretend the program was then illegal and is now OK, and which lets Reps (and me!) pretend that the issue was never in doubt.

Comments

[Pofarmer]

By all means. Let's just post the entirety of this, and the SWIFT program in the NY Times. Then we can all judge for ourselves how fair it is. At the same time, we should open up NSA offices for "Bring the public for a tour" days. I think it would be great.

[Infin]

Apparently we can't comment and explain what is going to happen to the US, so it's okay Rockefeller doesn't.

I'm going to laugh very hard!

[Ranger]

The problem is that the Dems are holding FISA hostage. The executive branch likes FISA because it gives them a mechanism for entering FIS into evidence for domestic court cases. Without it, DOJ can't use anything that is collected for FIS purposes. Unfortunately, there are parts of FISA that are clearly unconstitutional because they attempt to limit the power of the executive in the field of foreign intel gathering, which is clearly the executives responsibility and authority. Most at issue is FISA's wartime restrictions, which the congress itself thought were probably unconstitutional when they wrote the bill, but they left in anyway figuring that they had a panzy ass in Carter who wouldn't defend executive authority who would sign it anyway, and if they were wrong, the courts could fix it later. So, the Dems have forced the Administration into the position of arguing that FISA is consitutional so they can keep using it (that is a big part of what the in res. sealed case was about) while at the same time coming up with legal justifications to get around the unconstitutional parts of FISA (such as the AUMF argument).

The problem the Dems have is that most of them know their arguments are bogus, but how do they gingerly back away from the legal crisis they have caused?

As a side note, if I were the White House, I would refuse to hand over anything to the Senate about this until Sen. Rockefeller can explain how a secret, hand writen document (of which there were only ever two copies), kept in his safe wound up in the NYT.

[Semanticleo]

"Bring the public for a tour"

A tad on the disingenuous isn't it, farmer?

Security issues that are 'need to know' should never be used as human shields against getting the truth out. For the scenario to work out like many here feel it should, (keep it under wraps so we can win) it would need to be administered by those who have earned our trust as protectors of the Constitution. Instead we have short-cutters whose reputation borders more on skirting the law and finding the loophole that gets us our way.

Then they protect their position by
classifying the lunch menu, or declaring executive privilege. Not a lot of trust
is inspired by this bunch.

[Pagar]

"Only then, can we conduct thorough oversight of these programs and determine whether they are legal," Sen. John Rockefeller, incoming Democratic chairman of the Senate Intelligence Committee, said in a recent statement."""""""

You can read this entire exchange here;

http://www.freerepublic.com/focus/f-news/1523090/posts

WALLACE: Now, the president never said that Saddam Hussein was an imminent threat. As you saw, you did say that. If anyone hyped the intelligence, isn't it Jay Rockefeller?

ROCKEFELLER: No. I mean, this question is asked a thousand times and I'll be happy to answer it a thousand times. I took a trip by myself in January of 2002 to Saudi Arabia, Jordan and Syria, and I told each of the heads of state that it was my view that George Bush had already made up his mind to go to war against Iraq, that that was a predetermined set course which had taken shape shortly after 9/11. """""""""""""

No wonder the Communist Party of America and terrorists thruout the world are overjoyed that the Democrats won the election.

[boris]

would need to be administered by those who have ...

... been elected to protect the country.

[Ric Locke]

Well, semi-ant, the problem there is that the "reputation" -- to the extent it exists -- has been generated solely by the hysterical bigoted shouts, multiply repeated, of you and your allies. Actual evidence that there's anything behind it is either questionable or entirely absent. More feeeeeeeeeeelings taken as absolute. It's as clear to you that a Republican from Texas who's also a "Christianist" cannot be trusted as it was to me in 1960 that a black person can't do anything but manual labor, and with precisely the same degree of objective justification, i.e. none.

In all the cases I've seen so far, anyone and everyone who examines the program at all closely and is willing to put their name on their opinions comes away saying that it's legal, Constitutional, and somewhere between "useful" and "necessary". All the objections come from those, like yourself, who don't know anything and will admit that if pressed, but are pleased and happy to create and inflate third-hand rumors based on speculation, which in turn is based on bigoted stereotypes of the individuals currently in charge and the overriding goal of damaging them in any way possible.

The exceptions consist of people who are so thoroughly partisan, so egotistically confident of their moral superiority, and so jingoistically secure in the nonexistence of significant forces outside the country, that they are willing to expose the program(s) or portions thereof, confident that they will damage a President they don't like without causing themselves any problems.

So what we can look forward to is a period in which Democrats toss you and the rest of the bigots a few lumps of red meat, followed by establishment of a Genuine, Democratic™ communications-intercept program identical to the existing one except that the person(s) running it have been permitted to kiss Teddy Kennedy's, ah, ring. Meet the new boss, same as the old boss except for the Imprimatur of Moral Authority™ graciously bestowed by the DNC and the Press.

Regards,
Ric

[Other Tom]

I seem to recall that Rockefeller was one of those who was briefed several years ago, and that his reaction was to send a rather vague letter expressing some unspecified reservations, but never asserting illegality. Ditto Jane Harman, although she did say that the law might require that more members be briefed.

[jpe]

Unfortunately, there are parts of FISA that are clearly unconstitutional

People are still pushing this farce?

[clarice]

And Jane Harman tries to hop aboard the Pelosi express AFTER it's left the station.
"12-02) 04:00 PST Washington -- Rep. Jane Harman, the ranking member of the House Intelligence Committee, told a gathering of the American Bar Association on Friday that the Bush administration's secret wiretapping program for suspected terrorists is illegal.

Harman, D-Venice (Los Angeles County), who has become increasingly critical of President Bush's policies in recent months after her initial support for the Iraq war and her defense of the Patriot Act, also blasted the administration for refusing to provide legal opinions and authorizations for its wiretap program, interrogations policy and detentions of accused terrorists.

"The administration has too often operated under vague legal guidelines, pursuant to secret legal opinions generated by few and vetted by almost none," she said Friday. "

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/12/02/MNGKFMO5VU1.DTL

[clarice]

Some palate cleansing sherbet--stolen straight from Roger L. Simon. (Was TM asleep at the switch? How could he have missed this?)
For those few of you interested, Ms. Gwenyth Paltrow has "ankled" Hollywood for the tonier atmosphere of Blighty. "I like living here because I don't fit into the bad side of American psychology. The British are much more intelligent and civilized than the Americans."

Her example: She said having US pop star Madonna, 48, who married British film director Guy Ritchie six years ago, nearby was another advantage to living in London.

[Sue]

Anyone miss Gwyneth living here?

I. Didn't. Think. So.

[Syl]

I suspect Congress is going to overhaul FISA especially because it's too cumbersome. It needs major streamlining.

It will be interesting to watch. I think the Left and the civil libertarian absolutists are going to be in for a bit of a surprise. We do not live in a vacuum and their utopian ideals will be exposed for what they are.

[Syl]

Gwenyth is a ditz, but she's fine actress. I frankly don't care what her views are.

[Syl]

Did anyone watch on C-SPAN the presentation by a counterterrorism consultant, lovely young Arabic woman, who specializes in monitoring and analysis of jihadi activity on the internet?

Lots of monitoring in Europe and Britain but she does none in the U.S. because of privacy concerns.

I'm still looking for that right to privacy in the Constitution.

[Jim Rockford]

So what happens if, say, Al Qaeda poisons lots of people fatally at a hospital or football stadium with Polonium? Or something else?

What happens if another plane flies into, say, the Sears Tower? OR the LA Library Towers?

What happens if another Beslan is done by more Muslim terrorists here in this country?

As noted, we do not live in a vacuum. Dems are caught between the Nutroots who want NO measures at all to defend this country and the VALID point that foregoing these measures means Al Qaeda succeeds in killing Americans.

Bush can simply DARE Congress to kill his wiretaps and let Al Qaeda kill Americans. Dems would on balance call, and then pay the price (be directly blamed) for any successful terrorist attacks.

[Patrick R. Sullivan]

'Anyone miss Gwyneth living here?'

By moving from here to there, she probably raised the average IQ of both countries.

[MayBee]

'Anyone miss Gwyneth living here?'

It's a silly thing to say because there is NOBODY that would consider themselves part of the 'bad' psychology of America. Didn't she grow up in a Hollywood family and attend boarding school in Switzerland and spend time as an exchange student in Spain (with a family that gave her land as a wedding gift)? How many "real" American dinners has she participated in?

[MayBee]

I meant what she said is silly, not what Patrick said was silly.

[narciso]

This was "Slow Joe" Biden's crowning achievement;the FISA bill, I mean.
It reversed every aspect of military
signals intelligence policy (including
Venona)how good could it be.

[mark c.]

i see the Dems want to give tax breaks so that the "middle class" can write off college tuition. if the situation is that bad, why not a national tuition program. It could be fashioned after the health plan they favor. the gov't could negotiate cheaper rates by regulating professors'and administrators' salaries and reducing the cost of their personally authored textbooks (12th edition)through bulk purchase. can you imagine college economics professors having to negotiate their pay scales with an indifferent government. Priceless.

[lurker]

I read an article about the hype over "cut and run" waning down. I suspect the same will happen for this NSA terrorist surveillance program.

I suspect that more and more with intimate details in this program as well as the security details will be telling the dems to leave this program alone.

Are the dems going to be willing to restore it back to the Gorelick wall situation and allow another 9/11 attack?

Time will tell. The Americans had better hold those dems responsible.

[billy missle]

Why Didn't you connect the dots?
Why Didn't you connect the dots?
Why Didn't you connect the dots?
Don't you dare try to connect any dot at any time..you might find me doing something illegal..Where the hell is my lawyers phone number?
Why Didn't you connect the dots?
Why Didn't you connect the dots?
Ad nauseum

[Walter]

Off-topic, but the Rumsfeld Iraq memo is out.

Apparently, he actually had the capability to recognize when a strategy was no longer working.

The memo also calls into question the resignation timeline--written two days before his resignation, it does not refer to him leaving. Of course, one of Rumsfeld's Rules* states: "Be able to resign. It will improve your value to the president and do wonders for your performance."

*Ironically, one of the epigrams is remarkably prescient:

It is easier to get into something than to get out of it.

[lurker]

Didn't Rummy offer to resign more than once in the last few years but Bush wouldn't accept his resignation?

Rummy didn't seem to have a problem resigning but he knows that he would be scrutinized by the MSM regardless of when he resigns.

[Walter]

Lurker,

You thought I was referring to Iraq as "easier to get into..."?

I was talking about accepting the SecDef job once but having to resign three times to be able to quit.

[lurker]

Oh, ok! Gotcha! Guess he finally found a way to resign this time, huh?

Sometimes I wonder how hard it is to retire.

[Pofarmer]

"Bring the public for a tour"

A tad on the disingenuous isn't it, farmer?

No, not really, considering the history of leaks we've got going. Excessive oversight = a nonsecure/ineffective program.

[Cecil Turner]

Excessive oversight = a nonsecure/ineffective program.

No kidding. Contrast the security on this one with the analogous WWII "Operation Magic." Makes you think we (or at least some of us) can't be taking this seriously.

[lurker]

I read that the details of the NSA terrorist surveillance program as well as the SWIFT will not be revealed to the democrats. Those dems will be rendered ineffective. They probably will have to go the court for subpoenas or something?

[Anonymous Liberal]

Tom,
Not to look a gift horse in the mouth, but the link in your post doesn't go to my post.

As for your suggestion that the NSA program will go the way of the MCA, I'm skeptical. The passage of the MCA was made possible only by the existance of a Republican majority and the need to create a perceived winning election issue in the runup to the midterms. If you privately polled Republicans and Democratics in Congress, I suspect that very few genuinely thought that was a good bill. Much of the Republican support for that bill was based on party loyalty. Republicans like Specter and Graham will no longer feel obligated to vote for legislation like that now that they are in the minority, and legislation like that just won't make it to the floor anyway (unless, of course, the Bush administration can manage to cram through something before the lame duck session ends)

The Democrats aren't going to legislate in the dark. If the Bush administration doesn't comply with its requests for information, there won't be any overhaul of FISA. It's that simple. The Democrats will just leave the law as it is and let the courts sort things out (a few more court rulings will greatly strengthen their hand). Plus, the administration (see Cheney, Dick) still argues that it doesn't need any additional legislation. Why give the administration something they claim they don't need?

[lurker]

Because they are within the law according to the US Constitution.

[Larry]

Pontificating as if any one of us knew exactly how the NSA program works is getting old. All official opinion has deemed it legal. It's been used by successive administrations without complaint. Apparently, we've gained some info useful in apprehending terrorists and/or stopping terrorist attacks. No, nary, zero, zip, nada, not a single U S citizen has had their rights trampled. Someone want to explain to me exactly what the problem is? Are you there Glenn?

[Semanticleo]

"Off-topic, but the Rumsfeld Iraq memo is out."

Stephen Hadley was on MTP today demonstrating,
once more, why so few good people want to enter public life. He had the honor of trying
to spin Bush intransigence.

[Semanticleo]

"No kidding."

Cecil;

All kidding aside. Do you lock your front door at night?

[Cecil Turner]

Do you lock your front door at night?

Like I said: unserious.

[Larry]

Leo, Rumsfeld is right. I was 26 years in the USAF. Not one iota was ever trained about nation building. It's not DOD's job. We owe a huge debt of gratitude to D R's long record of outstanding public service. Bush, rightly, has the bigger picture to account for, of which DOD is only a part. If any of this is too complicated for you......

[Semanticleo]

"Excessive oversight"

I am serious.

Can you honestly macro the focus on 'soft
terror measures' or 'payback'?

Is there perhaps some other reason for;

'excessive oversight'?

[boris]

a few more court rulings will greatly strengthen their hand

Still doubt that courts will intrude into foreign surveillance. The detainee situation was far less risky for them and their meddling can be interpreted as goading congress to do their job. Impeding or interferring in surveillance after 911 carries substantial risk of geting Americans killed. That doesn't worry the MSM who consider Republicans a greater threat than Bin Laden, but one hopes a modicum of reason and restraint remains in the judicial branch.

Preticiton: Courts will lay off and then when Hillary gets elected spying on Americans to protect the country will suddenly be ok.

[Larry]

Any oversight by Jay "the leaker" Rockefeller is excessive. After reading his memo, I wondered what his qualifications are for the position. He apparently can't tie his shoes or wipe his butt without his staff.

Where was the criticism of the NSA before the NYT leak? Ranking democrats were repeatedly briefed, but nary a squawk from them til it went public.

[Semanticleo]

"He apparently can't tie his shoes or wipe his butt without his staff."

I tend to agree. But is there some reasonable middle ground between over-reliance on staff,
and completely ignoring their recommendations?

[lurker]

a few more court rulings will greatly strengthen their hand

This would be a violation of the US Constitution.

Management and delegation are reliance on staff. No problem.

Management and delegation is also ignorance on some recommendation but honoring others. No problem.

[lurker]

Larry, funny how Jane Harmon said that the NSA program is legal before she lost to Reyes. Now she says it's illegal. What a hypocrite.

[boris]

Now she says it's illegal

The NSA program can be constitutional yet in violation of the letter of the law. Until a higher court decides otherwise, the sealed case ruling provides a valid interpretation of FISA for the administration to uphold.

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.

[lurker]

Then the law should have been ruled as unconstitutional.

[Cecil Turner]

Can you honestly macro the focus on 'soft
terror measures' or 'payback'?

Not sure if this is "unserious" or "incoherent."

We have active foes attempting to do us harm; and their preferred method of attack is by infiltration. Every day, thousands of aircraft fly in our airspace and tens of thousands of containers are transported along our coasts and waterways. Any of them could be used for mass mayhem. The only possible defense is to intercept enemy communications and interdict their operations, and that's obviously impossible if they're allowed to read about our techniques in the newspaper. Balanced against this is the hypothetical violation of a non-existent privacy right, or political abuse that hasn't even been alleged. Tough call.

Again, the historical equivalents (e.g., "Magic") weren't even widely briefed among those who had a legitimate need-to-know. (Adm Kimmel at Pearl Harbor, for example, wasn't on the Magic distribution list, and Gen Short, the Army commander, wasn't even cleared for it.) As a result, the Japanese didn't know we were reading their messages, which led to the decisive victory at Midway. The idea that we need more briefings and public hearings on our most sensitive national security information--so that it can be leaked more efficiently to the NY Times--is a bit hard to credit.

[clarice]

"Tough call"--Love you, Cecil.

[Semanticleo]

The idea that we need more briefings and public hearings on our most sensitive national security information-

Unresponsive.

Who is to blame for this situation?

[Pagar]

""""The Democrats aren't going to legislate in the dark.""""""
I don't think anyone thought they were.
The plan was all laid out and has been available to everyone since 24 Jun 2006. Who were going to be the new committee chairs, what they were going to do to insure the agenda was moved forward. In case anyone didn't get a copy, you can find it at this website.
http://www.cpusa.org/article/articleview/769/1/135/

[Larry]

Who is to blame for this situation?
Posted by: Semanticleo | December 03, 2006 at 11:41 AM
Simply put, the traitorous leakers.

[maryrose]

Dems need to look tough on terrorism now because their perceived weakness is on how tough they are in pursuing terrorists. They will do what politically expedient for them to do in order to enable them to win in 08. If Rockefeller is exposed as a leaker then he is off the committee. I don't value anything he says because I don't think he's going to be in a position of authority much longer.

[boris]

Then the law should have been ruled as unconstitutional.

The sealed case interpreted the law as a mechanism for transfering foreign intel to the criminal justice system as admissable evidence and probable cause. It allows the NSA to utilize the justice system resources and capabilities to protect the country.

[Ranger]

The sealed case interpreted the law as a mechanism for transfering foreign intel to the criminal justice system as admissable evidence and probable cause. It allows the NSA to utilize the justice system resources and capabilities to protect the country.

Posted by: boris | December 03, 2006 at 01:03 PM

Yes, what most people fail to understand was that the secondary issue in that case was that the ACLU argued that FISA was unconstitutional because FISA Warrants did not rise to the level required by the constitution, and there for no evidence gathered under FISA should be admisable in court. The court decided that FISA was constitutional because it enhanced the president's ability to conduct FIS by giving him the option of either using the information in court or not, as the executive deemes most effective in protecting the nation.

The parts of FISA that are unconstitutional are the ones that limit the president's powers in the conduct of FIS.

[gm]

It allows the NSA to utilize the justice system resources and capabilities to protect the country.

Let me just improve the syntax.

It allows information gained by the NSA in its FOREIGN SURVEILLANCE MISSION to be utilized by the justice system to protect the country.

Otherwise spot on Boris.

[lurker]

And the FOREIGN SURVEILLANCE MISSION includes the communications between foreigners and inside USA contacts, directly and indirectly.

NSA is a military operation.

[lurker]

What I am willing to bet is that the democrats will not make any changes, hoping for a presidential win in 08, then the dem president will make a very minor change, such as changing the title of something, then make a public announcement that NSA is "now" legal.

Instead of saying "NSA Domestic Surveillance Program", they will begin to say "NSA Foreign Surveillance Program". But in reality, the program, itself, remains unchanged.

Thanks, boris, gm, and ranger. It doesn't make sense for Jane Harmon say things out of both sides of her mouth.

[Larry]

...til it went... Posted by: Larry | December 03, 2006 at 10:57 AM

Till, 'til or until, Larry. Respectfully submitted by the SG (Spelling Gestapo).

[Crust]

Tom, the first link is off; it should point to: http://www.anonymousliberal.com/2006/11/who-needs-rule-of-law-when-youve-got.html.

Also, FYI, Anon Lib has replied to this post.

[Crust]

Ranger's assertion:

The parts of FISA that are unconstitutional are the ones that limit the president's powers in the conduct of FIS.

would be more credible if anyone had argued this in the first quarter century of FISA's existence before it was revealed that under Bush the NSA was violating FISA. Despite the fact that this is now passing for received wisdom in some quarters, it wasn't even a minority view.

Just to head off the two obvious objections: 1. Yes, some people did argue that FISA was unconstitutional, but only in the opposite direction, i.e. that it gave the President too much power.
2. Yes, the President does have inherent surveillance powers under the constitution; the point is that FISA does not impose unconstitutional limitations on those powers.

(Apologies for repeating a point I made in a previous thread.)

[cathyf]

...would be more credible if anyone had argued this in the first quarter century of FISA's existence before it was revealed that under Bush the NSA was violating FISA.

So Carter, Reagan, GHW Bush, and Clinton don't count as "anyone"? (Yep, that's right, even Carter claimed that FISA couldn't limit his Article II powers...)

[boris]

FISA does not impose unconstitutional limitations on those powers.

Becaue it can't (sealed case judge).

[cboldt]

O/T -- links to Iraq Study Group Report.

http://www.bakerinstitute.org/Pubs/iraqstudygroup_findings.pdf

http://www.usip.org/isg/iraq_study_group_report/report/1206/iraq_study_group_report.pdf

The USIP one is getting hammered hard - but the bakerinstitute one was getting very light traffic when I d/l'd the report.

[Crust]

Cathyf (or anyone else), can you find a pre-2005 quote of Carter, Reagan, GHW Bush or Clinton or for that matter any member of their administrations claiming that FISA was unconstitutional (in a way that purported to limit the President's powers)? I'll throw in George W Bush and his administration for good measure.

[boris]

claiming that FISA was unconstitutional

straw dummy

The claim is not that FISA is unconstitutional, but that it can not limit president constitutional authority to conduct warrentless surveillance in collecting foreign intel.

[Crust]

I was replying to Ranger who wrote:

The parts of FISA that are unconstitutional are the ones that limit the president's powers in the conduct of FIS.

Boris writes:

claiming that FISA was unconstitutional

straw dummy

The claim is not that FISA is unconstitutional.

I report, you decide.

[boris]

parts of FISA that are unconstitutional

notice the term "parts of"

It's just an imprecise way of paraphrasing the sealed court judge ...

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.

Sure reads like the judge believes any "part" of FISA that attempts to do that would not be "constitutional" .

[Ranger]

2. Yes, the President does have inherent surveillance powers under the constitution; the point is that FISA does not impose unconstitutional limitations on those powers.

(Apologies for repeating a point I made in a previous thread.)

Posted by: Crust | December 06, 2006 at 07:50 AM

Ok, let me give you a clear example of exactly how FISA claims to limit the president's Article II authority. In 1993 the US government searched Aldrich Ames' house (a US citizen living in the US) without a warrant (twice) because they suspected him of being an agent for a foreign power, but the did not have probable cause yet. The search was legal because it was done for FIS purposes, but no information gather in the search would be admissible in court because there was no warrant.

FISA claims that if the administration had tap Ames' phone without a FISA warrant, that the administration would have committed a crime. That statement can not be true if the search of Ames' house was legal because it would be a case of congress restricting the president's authority to conduct FIS. Congress can not criminalize the president's execution of his Article II powers.

So, if the warrantless search of Ames' home for FIS purposes was legal (which pretty much everyone agrees it was), then a warrantless wire tap on Ames' phone for FIS purposes would also have been legal, but FISA clames that it would have been a crime. Therefore, FISA is unconstitutional because congress can not pass such a law (well, it can, it just isn't constitutional).

The only penelty that can be visited on an administration that engages in warrantless FIS searches is the prohibision against using that information in court. Now, congress can pass laws about domestic law enforcement warrants and the administration must follow those, but that is not what we are talking about here.

[Crust]

Ranger,

Thank you for the detailed and thought-provoking -- though I believe ultimately unconvincing -- reply. I had not run into that argument before.

Note that the Clinton administration did obtain a FISA warrant for their electronic surveillance of Ames. I certainly see your point that a warrantless physical search of an American's home would seem to be closely analogous to a warrantless wiretap on him. But note that just because the President has an authority to do something in the absence of contrary legislation, it does not follow that Congress can't place limitations on that authority by passing legislation.

As your example and argument illustrates, FISA is placing limits on Presidential powers. But it doesn't follow that FISA is unconstitutional (or, boris, that parts of it are unconstitutional).

[Crust]

Just to be clear on the Ames example: In 1993, as Ranger points out, there was a somewhat bizarre situation that FISA applied to electronic surveillance but not physical searches. As it now stands, FISA applies to both. Indeed, FISA was amended -- with the support of the Clinton administration -- about a year after the Ames affair.

[Ranger]

As your example and argument illustrates, FISA is placing limits on Presidential powers. But it doesn't follow that FISA is unconstitutional (or, boris, that parts of it are unconstitutional).

Posted by: Crust | December 06, 2006 at 09:59 AM

Crust, what part of:

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... 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.

http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html

is unclear?

If the president has the inherent authority under Article II to "conduct warrantless searches to obtain foreign intelligence information", then congress can not consitutionally take that authority away by statue. It is inherent to the office of the president. FISA attempts to take that authority away by making crimial conduct that is consitutionally the president's. The president may seek a warrant for FIS searches, or he may not, as he deems nessesary (the Ames house search proves that). Congress can not criminalize one of those choices. All congress can do is enhance those powers by, for example, creating a FISA warrant system that will allow FIS information to be used in court. But, congress can not criminalize the president's decision not to use a FISA warrant for FIS searches. The president still has the "inherent authority to conduct warrantless searches to obtain foreign intelligence information." Nothing congress alone does can change that. That can only be done by ammending the constitution, which FISA doesn't do.

[lurker]

And I hope this sort of amendment never gets approved.

[lurker]

"As your example and argument illustrates, FISA is placing limits on Presidential powers. But it doesn't follow that FISA is unconstitutional (or, boris, that parts of it are unconstitutional)."

Someone earlier pointed out that the parts of FISA that was deemed unconstitutional was the fact that FISA encroached on the US President's inherent powers as defined under Article II of the US Constitution.

[lurker]

Foreign intel includes the communications between foreigners and those US contacts, directly and indirectly.

[lurker]

"Just to head off the two obvious objections: 1. Yes, some people did argue that FISA was unconstitutional, but only in the opposite direction, i.e. that it gave the President too much power."

How can it gave the US President too much power?

[Crust]

Ranger,

Surely it does not need to be said that just because the FISC said that "FISA could not encroach on the President's constitutional power", it does not follow that FISA is nonetheless doing that. Forgive the no doubt superfluous English lesson, but "encroach" means to "intrude beyond proper limits"; so this statement is close to a tautology. The idea that the FISC somehow covertly established that FISA is unconstitutional is just not correct. Indeed, to quote the DoJ responses to the House Judiciary Committee:

The Terrorist Surveillance Program would not have been relevant to the question before the court in that case [In re Sealed Case]

Re the Ames search: As I mentioned above, at the time of the search, FISA did not cover physical searches, so I'm not sure where you're going with that.

If FISA is unconstitutional isn't it a little strange that we can't seem to find anyone who publicly claimed this before 2005? (Not counting people who claimed FISA is unconstitutional on the grounds that it gave the President too much power.) And isn't it a little strange that the administration has resisted review of the TSP and domestic call-details database programs?

[Crust]

Lurker asks:

How can it gave the US President too much power?

It's decidedly a minority viewpoint anyway. We can go into it if you want, but I've just been mentioning it out of completeness to prevent gotchas, not because I think it's a good argument.

[Ranger]

Crust,

That is because, as I said before, the administration (and all previous administrations) like parts of FISA very much. The FISA warrant system makes it much easier to introduce FIS material into court.

Also, as you point out, the in re sealed case did not deal with that issue directly, which makes the FISA court of review's statements about presidential authority and FISA even more significant, because they were not specificly nessessary to decide the case. They were very much a warning shot to all parties that if they pushed this whole issue of FISA's constitutionality too far it would blow up in their face.

In re Sealed is also interesting because the FISA court of review basically found that the FISC had unconstitutionally ignored the law, taken upon itself to rewrite FIS law, use procedures not in the law to protect its unconstitutional power grab. So, in re Sealed did find that the FISC had unconstitutionally constrained the president in exectuting FISA warrants.

The FISA court of review did not explicitly find that FISA unconstitutionally constrained the president in all FIS searches, but they did strongly imply it by reminded everyone that the president does have "inherent authority to conduct warrantless searches to obtain foreign intelligence information." That is a pretty strong hint to throw out there.

What you have to do is explain how congress can constitutionally take away an "inherent authority to conduct warrantless searches to obtain foreign intelligence information" that every higher court that has look at the issue has found to exist without amemding the constitution.

[Ranger]

Re the Ames search: As I mentioned above, at the time of the search, FISA did not cover physical searches, so I'm not sure where you're going with that.

Posted by: Crust | December 06, 2006 at 11:49 AM

Ok, to illustraite where I am going, let's do some simple question and answer.

Q: Was the warrantless physical search of Ames' house legal?

A: Yes

Q: How could it be legal without a warrant?

A: Because the president has inherent authority to conduct warrantless searches to obtain foreign intelligence information under Article II of the constitution.

Q: Is a physical search of a house more instrusive than a phone tap?

A: Yes, numerous courts have held that a physical search of a personal home is more intrusive than a wire or phone tap.

Q: How can less instrusive search be illegal while a more intrusive search is legal when both are conducted under the same "inherent authority to conduct warrantless searches to obtain foreign intelligence information."

A: It can't be. Therefore, either, the Ames search was not legal, or FISA in unconstitutional when it attempts to criminalize the president's choice to use his "inherent authority to conduct warrantless searches to obtain foreign intelligence information."

So, question to you Crust:

Does the president have inherent authority to conduct warrantless searches to obtain foreign intelligence information?

A simple yes or no is all that is required.

[Crust]

Ranger, if the FISC was "very much" firing a "warning shot" with their discussion in Sealed, isn't it a little surprising that no one noticed their "pretty strong hint" at the time? Or can you find some law professor or blawger or anyone really who publicly commented on this supposed warning in the 3 years from this judgement to the time it became public that the Bush administration was violating FISA?

[Crust]

Does the president have inherent authority to conduct warrantless searches to obtain foreign intelligence information?

Yes the President has this power, certainly absent statutes to the contrary. However, Congress also has the power to impose limits on that power and like I've stressed, before the issue became specifically attached to the Bush administration, no one claimed that the limits imposed by FISA were unconstitutional.

It's really not that complicated: the President's powers are different when Congress is silent on an issue then when Congress has passed a relevant law. There are lots of things that the President can do by executive order that he would not be able to do if Congress passed a law to the contrary.

[Ranger]

Well, at the time the NSA program was still secret, and it is pretty clear that the FISC got the hint, because they complied with the FISA court of review and seem to have cleaned up their act after they got humiliated by the FISA court of review's decision.

Also, none of this is an issue until democrats start running around screaming that the president is breaking the law and should be impeached for not getting FISA warrants for every act of FIS he wants to do.

As I said in the begining, it is the democrats that are holding FISA hostage to make political points. This administration, like every previous administration likes the fact that the FISA warrant system lets them get FIS material into court pretty easily. But, if the democrats push too hard, the administration will be forced to defend itself by destroying FISA on constitutional grounds, and both sides will be left with nothing but going back to the Truong case and argue in every single case that the government wants to use FIS material that it was gathered withou a warrant but primarraly for FIS purposes and not with the intent of using the information in court.

It is kind of like the War Powers Act, which everyone agrees is unconstitutional, but every administration complied with (while at the same time arguing that they don't have to) until 1999 when Bill Clinton deliberately violated it to keep fighting the Kosovo war, because he decided it was in the national interst to do so.

[Crust]

Minor correction just in case anyone's confused: In a couple of comments above, I wrote "FISC" when in fact I meant the FISA Court of Review.

[Ranger]

Does the president have inherent authority to conduct warrantless searches to obtain foreign intelligence information?

Yes the President has this power, certainly absent statutes to the contrary. However, Congress also has the power to impose limits on that power and like I've stressed, before the issue became specifically attached to the Bush administration, no one claimed that the limits imposed by FISA were unconstitutional.

It's really not that complicated: the President's powers are different when Congress is silent on an issue then when Congress has passed a relevant law. There are lots of things that the President can do by executive order that he would not be able to do if Congress passed a law to the contrary.

Posted by: Crust | December 06, 2006 at 01:05 PM

This is where you get confused. If it is an inherent power, then congress can not take it away by statue. Period. End of argument.

Could congress constrain the president's power to pardon? No. Because the power to pardon is inherent to the office of president. Congress can not pass a law that changes the constituion, which is what FISA attempts to do.

Each branch has a few specified and implied inherent powers that can not be changed without amending the constitution. The Senate can't propose revinew bills. Why? because that is a power that only the House has. If the Senate does it, and the House passes it, and the President signs it it is still unconstitutional.

[Ranger]

sorry, "statute".

[Crust]

It is kind of like the War Powers Act

Except that it isn't. You write that "every administration complied with [it] (while at the same time arguing that they don't have to)". No administration argued that they didn't have to comply with FISA (prior to the TSA revelations). That includes the Bush administration (at least in public). After the Patriot Act amended FISA, the DoJ stated that were happy with it as giving them all the tools they needed to combat terrorism; they even argued against the DeWine amendment that would have reduced the standard of proof for obtaining a warrant.

President Bush himself stated in April, 2004:

Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

[Ranger]

Crust, that statement is true. Warrants are still required for domestic wire taps. The NSA program only deals with monitoring communications that go into or out of the US. If both ends of the conversation are within the US a warrent is still required and obtained before any wire tap is put in place. Even the original NYT story that broke the NSA program admitted that.

[Crust]

Ranger writes:

If it is an inherent power, then congress can not take it away by statute. Period. End of argument.

Uh, no. See Youngstown.

By the way, Ranger, I've got to run. I've enjoyed this discussion and I hope to continue it some time either here or in another thread.

[Ranger]

Crust, too bad you have to take off, because I think we are about to get to the bottom of your confusion. You have been under the mistaken belief that the administration has been monitoring domestic phone calls without warrants, when everyone agrees that they have not.

Also, in re Youngstown, the issue there wasn't if the president had inherent authority, but if he was arguing that it extended beyond its recognized limits, which is to say, the president clearly had the authority to conduct the war in Korea, the question was if that authority extended to siezing domestic econimic property "for the war effort".

[boris]

the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information... We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

Cruft is arguing dishonestly.

It is clear from the above that the judge considers constraining presidential authority to conduct warrantless searches would "encroach" on the President’s constitutional power.

Forgive the no doubt superfluous English lesson, but "encroach" means to "intrude beyond proper limits"; so this statement is close to a tautology.

Stuff your arrogant superfluous English lesson.