The Times Taps Out On Wiretapping

The Times reports on a court decision on wiretapping and becomes inexplicably swept up in some pro-Bush euphoria:

WASHINGTON — A federal intelligence court, in a rare public opinion, issued a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a specific court order, even when Americans’ private communications may be involved.

The court decision, made in August 2008 by the Foreign Intelligence Surveillance Court of Review, came in an unclassified, redacted form.

The decision marks the first time since the disclosure of the National Security Agency’s warrantless eavesdropping program three years ago that an appellate court has addressed the constitutionality of the federal government’s wiretapping powers. In validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has the power to act without specific court approval in ordering national security eavesdropping that may involve Americans.

Cool - Bush vindicated.  But wait:

The Aug. 22 appeals court decision upheld a secret ruling issued last year by the intelligence court that it oversees, known as the Foreign Intelligence Surveillance, or FISA, court. In that initial opinion, the secret court found that Congress had acted within its authority in August 2007 when it passed a hotly debated law known as the Protect America Act, which gave the executive branch broad power to eavesdrop on international communications.

“The Department of Justice is pleased with this important ruling by the Foreign Intelligence Surveillance Court of Review, which upholds the constitutionality of foreign intelligence surveillance conducted under the Protect America Act of 2007,” a Justice Department statement said.

Hmm - I am not a lawyer, but if the question before the court was the constitutionality of the 20-07 act, why would they have been also opining on the President's separate conduct?

Well - the Anon Lib is a lawyer and he hangs a No Sale sign on the Times reporting.  Here's the opinion (29 page .pdf).

Comments

[Lane Yarley]

My understanding -- and feel free to correct me -- is that the President had inherent authority to conduct foreign intelligence, FISA circumscribed it, and PAA scaled back FISA, restoring the President's inherent authority to its full scope. In other words, one could easily read the case to hold that the President's inherent authority to conduct foreign intelligence is consistent with the foreign intelligence exception to the Warrant Clause of the Fourth Amendment. It necessarily follows that, as a constitutional matter, the Warrant Clause of the Fourth Amendment cannot bar the President's inherent constitutional authority to conduct (purely) foreign intelligence. That is why hard-line conservatives are rejoicing.

[matt]

The NSA has been doing this regardless. These are international calls by definition, and the very programs NSA has used since inception utilize key words, locations, languages used, and other data points to determine the level of interest and whether to record particular conversations. This law has been established since the 1960's.

[Danube of Thought]

Allow me first to rejoice at what I assume is the intense displeasure of the Anon Lib, with whom I once engaged in spirited correspondence on the subject of the president's inherent power. Looks like I won, and therefore nyah nyah ni nyah nah to him.

Now I will go and actually read some of these materials--at my leisure, of course.

[Boatbuilder]

I (seriously) question the timing--and The Times' sudden change of heart about the Bush Administration's position. How come they are not declaring the decision an unconstitutional outrage?
Now they can just ignore Obama's likely continuation of the program, which would have been . . . uncomfortable for them to defend in light of their past clamorings against even the slightest level of possible infringement on the heretofore sacred right to make cell-phone calls to the Middle East. (Not that such discomfort ever prevented them from making a 180 before).

[PaulL]

Sounds like Anon Lib is a Bush-hater.

[tballou]

Unfortunately for Bush & Co., this ruling relates only to the PAA, not FISA. They may be off the hook for warrantless spying post 2007, but not so for all the years before then. Greenwald as usual spells it all out.

[E. Nigma]

Can Greenwald spell?

Imagine that.

[E. Nigma]

Can Greenwald spell?

Imagine that.

[Danube of Thought]

"Unfortunately for Bush & Co., this ruling relates only to the PAA, not FISA. They may be off the hook for warrantless spying post 2007, but not so for all the years before then."

Wow. What an attention-grabbing lead that is. I have no doubt that the nation will soon be gripped by debates about what is sauce for the PAA either being, or not being, sause for the FISA. As to all the years before 2007, I expect we'll ultimately see lots of tech types rolling through the streets in tudrils. Or maybe not...

[Danube of Thought]

*tundrils*

[E. Nigma]

Sorry about the double post.

[gus]

Obama will do the same things President Bush did with regard to spying.
Obama is the best Advert that TELEPROMPTER INC. has ever had. He is a useless empty suit that rose to power via the TELEPROMPTER and stupid lemmings.
But Obama will still try to govern wisely,.
Wisely as a Marxist can.
He'll try to shut down GITMO, because to NOT shut dowm GITMO will make him look like the lying hose bag he is. So Obie will try to find an ALTERNATIVE to GITMO for face saving reasons.
The man is not bright. I realize I'm swimming upstream, BUT, I've yet to see something BRIGHT about him.
I know I know, people can't believe that a guy who is NOT BRIGHT could go to Columbia and Harvard. Well, Al Gore went to Yale and Harvard. Bill Clinton is bright and self centered. Obie is not bright and is self centered AND Marxist.
Obie will govern in a manner that wins him praise and doesn't accomplish much. If kudo's and self agrandizing is your FIRST concern. you'll NEVER be a leader.
Obie has never lead anything. Nothing. Zero. Zilch, Nada. Michelle wears the pants in Obies own family.
Just my analysis of Obama, and I know people.

[jpe]

Lane: "inherent authority" is the ability of the President to operate in a vacuum, when Congress has neither forbade nor permitted particular conduct.

That said, the PAA was passed to permit the President to spy w/o warrants; the question for the court is simply whether that law is constitutional.

As AL notes, that is a completely distinct question from whether Bush had the Constitutional authority to violate a duly enacted law (FISA). The decision simply had nothing to do w/ Bush's program, the notable feature of which was its contravention of FISA.

[Lane Yarley]

Lane: "inherent authority" is the ability of the President to operate in a vacuum, when Congress has neither forbade nor permitted particular conduct.

You are not a close reader. PAA repealed part of FISA. This decision was decided under the PAA. The inherent authority of the President was restored by the PAA, which repealed that provision of FISA many considered an unconstitutional encroachment on the President's inherent authority.

The decision simply had nothing to do w/ Bush's program, the notable feature of which was its contravention of FISA.

That would be untrue if the portion of FISA repealed had been unconstitutional.

[Fols]

Plame complained. Dad was an NSA agent - why she got leaked as a CIA student in France. Sorry about Ames. I bet they were pals, like close.

[Topsecretk9]

Plame complained. Dad was an NSA agent - why she got leaked as a CIA student in France. Sorry about Ames. I bet they were pals, like close.

Sorry about Ames. I bet they were pals, like close.

Plame and Ames share similar names.

[jpe]

Lane: could you cite the part of the opinion that notes that FISA "restored the President's inherent authority"?

[Ranger]

"inherent authority" is the ability of the President to operate in a vacuum, when Congress has neither forbade nor permitted particular conduct.

Posted by: jpe | January 15, 2009 at 11:56 PM

Um... In a simple word, no. Congress can not constrain a president's inherent authority to do anything. To do so would be a "power grab" by the legislative branch and violation of the constitution.

As per the http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html>UNITED STATES FOREIGN INTELLIGENCE
SURVEILLANCE COURT OF REVIEW In re: Sealed Case No. 02-001

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.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

[kim]

Surely you didn't think that Obama was going to give up this power, now, did you?

Fundamentally this issue comes down to trusting the executive or not. The press has made the nation untrusting of Bush and trusting of Obama, despite all evidence to the contrary.
===========================================

[Extraneus]

Is this not the most boring, idiotic issue ever? Like kim says: Obama will be lionized by the MSM and all "liberals" for using as much authority as he can, in any way he can, regardless of constitutionality. (After all, it's a "deeply flawed" document, and "who really cares about it being unconstitutional" when social justice is being done?)

There will then arise an industry of commenters feeding FISA-related words back to hypocrites, but it'll just be time wasted. As they taught us, such time would be much better spent attacking Obama in all areas, regardless of national security, probity, etc. And unlike them, we won't have to be dishonest about it.

[Extraneus]

Heh, guess that wasn't exactly what kim says.

[narciso]

That's the irony isn't it, the GOP gave Clinton the line item veto, something Presidents would have given their eye teeth for, but he effectively lost it,through the courts because of applying it to Idaho potato farmers, and some NY Upstate dairy workers, or some ridiculous thing. Of course he will misuse this power, ironically take "Enemy of the State" as a guide and not make it a metaphor. Only question is if there will be enough people to challenge his authority when he abuses it.

[Thomas Collins]

I read the opinion. The court is very careful not to go into a discussion of POTUS's inherent powers (see the language in the last couple of paragraphs). However, it seems to me to be a strained interpretation of the US Constitution to argue that POTUS in no circumstances can order a warrantless search without Congressional authorization. As to whether Congress can circumscribe POTUS's powers to order warrantless searches, it seems to me that, just as in the case of Congressional attempts to circumscribe POTUS's ability to order military operations, POTUS should do what he or she has to do and let the second guessers then have their day. In this regard, no Dem or GOP POTUS has acquiesced to Congressional attempts at circumscribing POTUS's Commander in Chief authority (although I believe the POTUS has typically given Congress notification of military actions).

[Ranger]

(although I believe the POTUS has typically given Congress notification of military actions).

Posted by: Thomas Collins | January 16, 2009 at 10:40 AM

The only president to deliberately ignore the provisions of the War Powers Act was Clinton during the Kosovo War. Given that congress was already impeachment weary from taking him on once, there was little desire to re-impeach Clinton over it.

[kim]

Just a little to the side of this issue, but fundamental to it, is the question of just why the Founders gave Congress the authority to declare war and the Executive the authority to wage war. The answer is that it is a Hell of a lot easier to get into a war than to get out of one. Thus vigourous, partisan, discussion before the fact, and unitary command after the fact were the safest courses.
=========================================

[kim]

Heh, E, I couldn't have said it better.

Sadly, this society is 100% out of kilter on this and many other issues. Bush was eminently trustworthy, Obama, and Clinton, completely unso.
===========================

[Thomas Collins]

See LUN for an interesting article on POTUS and the so-called War Powers Act (I use "so-called" because I think the legislation, passed over President Nixon's veto, is an unreasonable Congressional attempt at emasculating the powers granted to POTUS under the US Constitution; I am aware that there are many, whose good faith I do not challenge, who strongly disagree with that position).

[jpe]

However, it seems to me to be a strained interpretation of the US Constitution to argue that POTUS in no circumstances can order a warrantless search without Congressional authorization.

Good thing no one is arguing that, then. The question isn't whether the President can wiretap in the absence of Congressional direction, but whether he can in the face of Congressional prohibition.

[Ranger]

The question isn't whether the President can wiretap in the absence of Congressional direction, but whether he can in the face of Congressional prohibition.

Posted by: jpe | January 16, 2009 at 01:20 PM

What part of:

"...the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information... ...FISA could not encroach on the President’s constitutional power."

is unclear to you?

[Danube of Thought]

And the answer to that question is "yes, by reason of the president's inherent authority."

Let us imagine that the congress enacts a law providing that "the president shall not make any appointments to fill vacancies during recesses of the Senate." The president proceeds to make such appointments. What result?

[Danube of Thought]

"'Inherent authority' is the ability of the President to operate in a vacuum, when Congress has neither forbade nor permitted particular conduct."

If one thus falsely defines the president's inherent authority, one will proceed inexorably to false conclusions.

[Thomas Collins]

Yes, jpe, folks have argued that, even if Congress hasn't prohibited a form of foreign surveillance wiretapping, POTUS doesn't have the inherent authority to do so. See LUN for a short summary of the issues and links to other discussions. There is clearly a "border search" exception to a warrantless search, and it has been argued by many, including Orin Kerr (whose discussion is linked in the LUN) that there is a national security exception. However, this is not necessarily considered a slam dunk (as indicated by Kerr's discussion).

[Daddy]

Well I've undergone Waterboarding and all I can say is this "Prev/Next" nonsense on the comments board is a close second to that disagreeable experience.