Tuesday, March 14, 2006

A Response to the Hysterical Sen. Feingold et al

Look, I'm not a lawyer and I don't pretend to play one on TV. Furthermore, I don't care about this issue. Maybe I am a naive citizen and am sticking my head in the sand, but I can't get upset by this issue. Maybe I'll learn something 50 yrs from now to show me how wrong I am, but I doubt it. I haven't spent a lot of time reading about this issue because it doesn't upset me. One clue to me that this isn't a big deal is that after the program was revealed, the members of congress that got briefed all said it was a good program and should continue.

That being said, from what I did read the controlling case law seems to be United States v. Truong in 1980.

Cribbed from powerline, a righty blog that is a good summary of a lot of what I read:

The case involved a criminal prosecution arising out of the defendant’s spying on behalf of the Socialist Republic of Vietnam. The case presented the issue of the executive branch’s inherent power to conduct warrantless surveillance for national security purposes:

The defendants raise a substantial challenge to their convictions by arguing that the surveillance conducted by the FBI violated the Fourth Amendment and that all the evidence uncovered through that surveillance must consequently be suppressed. As has been stated, the government did not seek a warrant for the eavesdropping on Truong’s phone conversations or the bugging of his apartment. Instead, it relied upon a “foreign intelligence” exception to the Fourth Amendment’s warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.
The court agreed with the government’s position:

For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.
The court held that warrantless searches for foreign intelligence purposes are constitutional, as long as the “object of the search or the surveillance is a foreign power, its agent or collaborators,” and the search is conducted “primarily” for foreign intelligence reasons.


Cass Sunstein, a liberal law professor, also believes the president has the authority.

This is enough for me to believe that if Bush isn't on solid legal ground, it is at worst a gray area. If congress really thinks Bush overstepped his authority, why hasn't it filed with the supreme court to shut the program down, instead of having one preening wannabe presidential candidate senator grandstanding?.

As far as too the question of why to ignore FISA, Attorney General Alberto Gonzales addressed this in remarks at the Georgtown Law Center in January. Some key excerpts:

[F]rom the outset, the Justice Department thoroughly examined this program against al Qaeda, and concluded that the President is acting within his power in authorizing it. These activities are lawful. The Justice Department is not alone in reaching that conclusion. Career lawyers at the NSA and the NSA’s Inspector General have been intimately involved in reviewing the program and ensuring its legality.
The terrorist surveillance program is firmly grounded in the President’s constitutional authorities. *** It has long been recognized that the President’s constitutional powers include the authority to conduct warrantless surveillance aimed at detecting and preventing armed attacks on the United States. Presidents have uniformly relied on their inherent power to gather foreign intelligence for reasons both diplomatic and military, and the federal courts have consistently upheld this longstanding practice.

If this is the case in ordinary times, it is even more so in the present circumstances of our armed conflict with al Qaeda and its allies.


...The President’s authority to take military action—including the use of communications intelligence targeted at the enemy—does not come merely from his inherent constitutional powers. It comes directly from Congress as well.

...[A]s long as electronic communications have existed, the United States has conducted surveillance of those communications during wartime—all without judicial warrant. In the Civil War, for example, telegraph wiretapping was common, and provided important intelligence for both sides. In World War I, President Wilson ordered the interception of all cable communications between the United States and Europe; he inferred the authority to do so from the Constitution and from a general congressional authorization to use military force that did not mention anything about such surveillance. So too in World War II; the day after the attack on Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the United States. The terrorist surveillance program, of course, is far more focused, since it involves only the interception of international communications that are linked to al Qaeda or its allies.

...The FISA Court of Review, the special court of appeals charged with hearing appeals of decisions by the FISA court, stated in 2002 that, quote, “[w]e take for granted that the President does have that [inherent] authority” and, “assuming that is so, FISA could not encroach on the President’s constitutional power.” We do not have to decide whether, when we are at war and there is a vital need for the terrorist surveillance program, FISA unconstitutionally encroaches – or places an unconstitutional constraint upon – the President's Article II powers. We can avoid that tough question because Congress gave the President the Force Resolution, and that statute removes any possible tension between what Congress said in 1978 in FISA and the President's constitutional authority today.

....You may have heard about the provision of FISA that allows the President to conduct warrantless surveillance for 15 days following a declaration of war. That provision shows that Congress knew that warrantless surveillance would be essential in wartime. But no one could reasonably suggest that all such critical military surveillance in a time of war would end after only 15 days.
Instead, the legislative history of this provision makes it clear that Congress elected NOT TO DECIDE how surveillance might need to be conducted in the event of a particular armed conflict. Congress expected that it would revisit the issue in light of events and likely would enact a special authorization during that 15-day period. That is exactly what happened three days after the attacks of 9/11, when Congress passed the Force Resolution, permitting the President to exercise “all necessary and appropriate” incidents of military force.

Thus, it is simply not the case that Congress in 1978 anticipated all the ways that the President might need to act in times of armed conflict to protect the United States. FISA, by its own terms, was not intended to be the last word on these critical issues.


So Congress may need to pass new laws, but that doesn't mean current law is being broken.

The question of not getting retroactive warrents comes down to resources. Why waste tons of time. Here is the process as described by Gonzales:

Some have pointed to the provision in FISA that allows for so-called “emergency authorizations” of surveillance for 72 hours without a court order. There’s a serious misconception about these emergency authorizations. People should know that we do not approve emergency authorizations without knowing that we will receive court approval within 72 hours. FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted. That review process can take precious time.
Thus, to initiate surveillance under a FISA emergency authorization, it is not enough to rely on the best judgment of our intelligence officers alone. Those intelligence officers would have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied, then lawyers in the Department of Justice would have to be similarly satisfied, and finally as Attorney General, I would have to be satisfied that the search meets the requirements of FISA. And we would have to be prepared to follow up with a full FISA application within the 72 hours.

A typical FISA application involves a substantial process in its own right: The work of several lawyers; the preparation of a legal brief and supporting declarations; the approval of a Cabinet-level officer; a certification from the National Security Adviser, the Director of the FBI, or another designated Senate-confirmed officer; and, finally, of course, the approval of an Article III judge.


The point of the surveillance is to prevent attacks, not to bring court cases. This is a national security issue, not a law enforcement question. Again, difference in perspective.

This is an extremely long post, but I think it shows that there is a lot of room for interpretation into the law. I bet that a lot of you could find opinions that have different conclusions to what I have poste. That just proves the point that it is not cut and dried that FISA is the governing law in this program.

3 Comments:

Blogger Jeff said...

"Furthermore, I don't care about this issue. Maybe I am a naive citizen and am sticking my head in the sand, but I can't get upset by this issue. Maybe I'll learn something 50 yrs from now to show me how wrong I am, but I doubt it."

I guess you don't consider the power to order warrantless wiretaps to be all that important to the success of the war on terror if your attitude is one of such profound lack of concern. If only the President shared your sense of proportion, we might have avoided this mess.

"That being said, from what I did read the controlling case law seems to be United States v. Truong in 1980."

In the words of a 2002 decision by the FISA appeals court, "Truong dealt with a pre-FISA surveillance... it had no occasion to consider the application of the statute..." What better to be controlling case law than a decision made before the adoption of the Act that the president has violated? In other words, this 2002 decision that the right keeps citing (minus the extract above, for the sake of brevity, I assume) refers to a case that concerned the exercise of presidential power in the absence of explicit prohibitions enacted by Congress, which is exactly what FISA later established. To sum up: the law changed, and Bush broke the new law.

Contrary to your assertion that "This is a national security issue, not a law enforcement question," FISA explicitly states: "...notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." Notwithstanding our different notions of "cut and dried," it appears to me that Congress not only specifically envisioned the circumstances affecting FISA compliance during a declared state of war (which doesn't currently exist), but that they considered 4th Amendment civil liberties to be so important that the Executive was only entitled to two weeks worth of warrantless wiretapping, after which time the standard FISA provisions took effect again.

Of course, you might argue that the laws need to be changed, which is what Gonzales and the administration started to plead at the beginning of all this, before they decided on an ex post facto rationale: "We have had discussions with Congress in the past—certain members of Congress—as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible." Which is it, Al? Did Congress implicitly grant the President this power via what they said in the AUMF, and what they didn't say in FISA, or is it obvious (as it clearly was to him) that they would reject this interpretation?

"The question of not getting retroactive warrents comes down to resources. Why waste tons of time."

I'm sure if they were here today, the Founding Fathers would sincerely apologize to you, Powerline, and Alberto Gonzales that lots of paperwork is required to bypass a civil liberty they considered to be one of the top five. But since the issue of resource allocation and efficiency is apparently paramount, here's a proposal: As you yourself have noted before, we continue to hold elections during wartime. Couldn't the millions of dollars and man-hours wasted during those dog-and-poney shows be put to better use fighting the enemy? Just a thought.

What your argument really comes down to is one for the imperial presidency, while the other side is arguing separation of powers and the rule of law. You may have noticed that many supporters of the war share those concerns, so you should at least recognize that even though the all-purpose justification of "everything changed after 9/11" is still good sloganeering, it doesn't really explain the differing perspectives in this case.

9:01 PM  
Blogger Germanicu$ said...

Not sure how you gleaned from the posted link that liberal Law Professor Cass Sunstein believes the President has the authority.

His words: "This is meant as an exceedingly tentative analysis, with the purposes of disaggregating the issues and of suggesting that there are several unresolved questions here."

Powerline and the U of Chicago law dept. blog are pretty good sources of information, especially if words like "disaggregating" mean something to you. You may want to consider broadening your reading horizons, though, as there are scads of comments from dozens of law professors, attorneys, Republican legislators, and even Wall Street Journal editorial writers decrying the clandestine nature of this program, and questioning its legality.

You've made clear that this is not a big deal to you. But despite the length of your post (which was far from onerous), I remain unconvinced that it shouldn't be a big deal to me.

9:13 AM  
Blogger hurtleg said...

I never made the argument that it shouldn't be a big deal for you. I was just saying that at the gut level this issue doesn't move me. Everyone reacts to different stories at different levels.

I obviously am much more passionate about Iraq and Iran than a lot of people. Gut reaction can't be dictated by logic.

For the record, my reading list is much larger than powerline, its just who I grabbed to summarize the opposite argument in the surveillence case. I have read many of the summaries that FISA is applicable, and admit there are valid points. I am not a lawyer or judge, so I don't know who is right.

I guess in my gut it is a national security issue and I give the president the benefit of the doubt.

10:11 AM  

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