Balkinization  

Sunday, December 25, 2005

If You're Going to Read Only One Thing About the NSA Spying Program

Marty Lederman

. . . it probably ought to be this piece by Suzanne Spaulding, former assistant general counsel at the CIA, general counsel for the Senate and House Intelligence committees, and executive director of the National Terrorism Commission (1999-2000).

Excerpt:

The objectives of the surveillance program, as described in news reports, seem laudable. The government should be running to ground the contacts listed in a suspected terrorist's cell phone, for example. What is troubling is that this domestic spying is being done in apparent contravention of FISA, for reasons that still are not clear. . . .

Perhaps the administration did not believe that these wiretaps would meet the FISA standard, which requires the government to have probable cause to believe that the target of the surveillance is an agent of a foreign power, which includes terrorists and spies. . . .

[I]f administration officials believed they faced a scenario in which the FISA standard could not be met, they could have sought to amend the statute, as they have done several times since the law's enactment in 1978. Several such amendments, for example, were contained in the 2001 Patriot Act.

The administration reportedly did not think it could get an amendment without exposing details of the program. But this is not the first time the intelligence community has needed a change in the law to allow it to undertake sensitive intelligence activities that could not be disclosed. In the past, Congress and the administration have worked together to find a way to accomplish what was needed. It was never previously considered an option to simply decide that finding a legislative solution was too hard and that the executive branch could just ignore the law rather than fix it.

Moreover, the administration has yet to make the case for keeping this significant policy change secret for four years. It's hard to imagine that the terrorists do not already assume that we try to listen to their cell phone conversations (after all, it is well known that FISA allows such wiretaps) or that we have technology to help us search through reams of signals. (Check out the Wikipedia definition of Echelon on the Internet.) So what do the terrorists learn from a general public discussion about the legal authority being relied upon to target their conversations? Presumably very little. What does the American public lose by not having the public discussion? We lose the opportunity to hold our elected leaders accountable for what they do on our behalf.

Attorney General Alberto Gonzales claims that the NSA program did not violate the law because FISA only requires a warrant "unless otherwise authorized by statute" and that the congressional resolution authorizing the use of force after the attacks of Sept. 11, 2001, somehow authorized this circumvention of FISA's rules. FISA does provide for criminal penalties if surveillance is conducted under color of law "except as authorized by statute." This is a reference to either FISA or the criminal wiretap statute. A resolution, such as the Use of Force resolution, does not provide statutory authority. Moreover, FISA specifically provides for warrantless surveillance for up to 15 days after a declaration of war. Why would Congress include that provision if a mere Use of Force resolution could render FISA inapplicable?

The law clearly states that the criminal wiretap statute and FISA are "the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance.

Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.

The administration's ultimate argument is that "the president has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity." This is the same argument outlined in the infamous torture memo, which concluded that the president can effectively ignore any statute that appears to infringe on this broad authority. That memo was withdrawn after it became public and was roundly criticized. The legal reasoning behind the arguments, however, has never been repudiated and appears to have resurfaced here.

We cannot know for certain how the Supreme Court would rule on the legitimacy of the spying program. However, the court rejected President Harry Truman's similar claim of broad presidential power in seizing control of the nation's steel mills to avert a strike during the Korean War. The court, in a 6-to-3 ruling , stated that the president's inherent authority is at its weakest in areas where Congress has already legislated. It ruled that to find inherent presidential authority when Congress has explicitly withheld that authority -- as it has in FISA -- "is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between president and Congress."

The administration may be counting on fear of another terrorist attack in asserting this unprecedented authority. But if President Bush can simply ignore laws that he thinks are unconstitutional, without getting a court ruling or having genuine consultations with Congress, then why bother to work so hard at getting the Patriot Act provisions right, or the McCain torture amendment, or any other laws related to terrorism? And where does it stop? Justice Sandra Day O'Connor rejected the administration's claim of unchecked power in the 2004 Hamdi case, in which the government argued that the courts could not review the legality of enemy combatant detentions. She wrote, "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens. . . . Whatever power the United States Constitution envisions for the Executive in its exchanges with . . . enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

Comments:

I think what we have here are multiple concatenated threads: soon to be Attorney General Gonzales and his then associates counseling the president a long time ago that the Geneva Conventions seem quaint when compared to the reality of the twin towers disaster. Next there appears to be a Gonzales opinion after the congressional authorization of use of force, interpreting this as a new kind of AUMF. So we get secret mistreatment of prisoners, then we get a secret interpretation of the conflict as justifying exclusion of the judiciary as FISC as well as much of congress by delimiting how much information is told to the congressional intelligence committee leadership. It seems to me a pyramiding of problems; and some of the first missteps were based on a few laissez faire policies which cast a negative light upon Arab politics, igniting even further the then as yet to be coalesced terror faction in the Afghan camps. Admittedly, this blogsite serves its highest purpose to serve the isolated and perhaps worried executive, by reintroducing a balanced consideration of the sense in which the political fray remains a vital forum only when resting on a substrate of law. By one report, an executive opinion recently proffered depicted the legal underpinnings as only paper. While foreign policy and even sociology are outside the purview of this website and its discussions, and appropriately so, in order to focus solely on how to examine the law which binds us in as national entity, there needs to be a redefinition, in congress, of to what extent this is a state of martial law; to what extent in such an imperiled state law becomes as the executive official purportedly stated, merely paper at that point. Although historicizing the sequence of executive decisions helps add a modicum of impartiality for the purpose of improving understanding, it seems to me there arrives a point at which the aggregate of problems accentuates the urgency of reassessment. The legal community needs to be heard loudly on the privacy concerns here which are fast becoming as quaint as prisoner dignity was for a brief four years though the latter now reportedly is receding to a more natural condition resembling the respect afforded detainees in prior decades.
It is very interesting the cyberlaw is attempting to view what is robotic, what is fuzzy logic, what is a human designed datamining filter, and why FISC's incredibly slow 48-72 hours delay is obsolete in times when instantaneous communications are fairly omnipresent. The CALEA and E911 debates were fierce in congress, but both laws passed. It seems that in addition to policy and sociology obstacles, we are facing an increment of new problems engendered by the incompleteness and perhaps shortsightedness of those measures.
The lawlessness of terrorism, like guerilla warfare has long been a problem, as these entities thrive in the ill defined zones outside society and outside of nations, and precisely by that consciously anarchical context in which those movements opt to put down their roots, they invite a commensurately lawless response, even from strong law-based nations such as ours. Perhaps a differently populated executive branch would have led in a different manner and these confrontations, disasters, and clearly illegal bypassing efforts to minimize our laws would not have occurred. There needs to be a civic context in which a rein is placed on lawlessness at the very top of government and in our foreign affairs. It seems quixotic to hold this view, given the lawlessness of the terrorist guerilla substrate and consciencelessness with respect to ordinary humanity. But that is exactly the message which the law community needs to develop, to inform congress, to support the courts, and maybe to remake a fractured executive, though the officials themselves contend all is well. It seems from this past week, it was time for the president to have released two news organizations from keeping the eavesdropping program secret; they held the story for a full year. Now is time for us to develop a timely and, as the president is saying, 'nimble' kind of legal infrastructure so that the full diversity of our system of government remains intact, and that we are not faced with five more years of what increasingly sounds like tantamount to martial law.
 

OFF SUBJECT: Happy Holidays and Best Wishes for the New Year
 

From The Federalist Papers No. 69, in which Hamilton contrasts the president's constitutional authority as commander in chief with that of the British monarch:

"The President is to be commander-in-chief of the army and navy of the United States. . . . It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature."

Federalist No. 69 debunks the Bush administration's myth of unlimited authority under the C-in-C clause.

He's no more than general in chief, subject to ALL regulations on the military's operations passed by Congress. See Art. I, Sec. 8.

Congress passed FISA. FISA covers the NSA. The NSA is part of the DOD.

Ergo, Bush has no more authority to order wiretapping as C-i-C than FISA allowed.
 

In his September 25, 2001 Memorandum, in discussing what he asserted were the unbridled power of the Commander-in-Chief under Article II, Section 2, John Yoo drops a citation in footnote 5 that seems to acknowledge this power is subject to at least some degree of congressional limitation: Ex parte Vallandigham, 28 F. Cas. 874, 922 (C.C.S.D. Ohio 1863)(No. 16,816)(in acting "under this power where there is no express legislative declaration, the president is guided solely by his own judgment and discretion). FISA is arguably an express legislative declaration that would at least to some extent guide the president's judgment and discretion.
 

No group should be more troubled by President Bush’s apparent violations of federal law than the Republicans who sanctimoniously impeached and tried President Clinton on perjury and obstruction of justice charges for allegedly lying under oath about and trying to cover up his private sexual conduct. The Republicans insisted that the impeachment and trial of President Clinton was not about sex, but rather about upholding the Rule of Law. Their lofty and eloquent arguments about the Rule of Law are instructive in considering President Bush’s conduct.

During the Senate trial of President Clinton on the Articles of Impeachment, then-House Judiciary Committee Chairman Henry Hyde (R.-Ill.) vehemently argued:


Let us be clear: The vote that you are asked to cast is, in the final analysis,
a vote about the rule of law. The rule of law is one of the great achievements
of our civilization. For the alternative to the rule of law is the rule of raw
power... The ‘rule of law’ is no pious aspiration from a civics textbook, The
rule of law is what stands between all of us and the arbitrary exercise of power
by the state. The rule of law is the safeguard of our liberties. The rule of law
is what allows us to live our freedom in ways that honor the freedom of others
while strengthening the common good.


House Judiciary Committee member Rep. Ed Bryant (R.-Tenn.) argued to the Senate:


As the head of the Executive Branch, the president has the constitutional duty
to ‘take care that the laws be faithfully executed.’… In view of the enormous
trust and responsibility attendant to his high office, the president has the
manifest duty to ensure that his conduct at all times complies with the law of
the land.


In the House debate resulting in the impeachment of President Clinton, House Judiciary Committee member Rep. James Rogan (R.-Calif.) made this particularly pertinent argument:


There is no business of government more important than upholding the rule of
law. A sound economy amounts to nothing beside it, because without the rule of
law, all contracts are placed in doubt and all rights to property become
conditional. National security is not more important than the rule
of law, because without it, there can be no security and there is little left defending.... (emphasis supplied).


Equally relevant to President Bush’s authorization of warrantless domestic spying, and his administration’s justifications for it, is the argument presented to the Senate during President Clinton’s impeachment trial by House Judiciary Committee member Rep. Steve Buyer (R.-Ind.):


The president has a constitutional role of Commander in Chief.…[A]s the ‘single
hand’ that guides the actions of the armed services, it is incumbent that the
president exhibit sound, responsible leadership and set a proper example... In
order to be an effective...effective military leader, the president must exhibit
the traits that inspire those who must risk their lives at his command. These
traits include honor, integrity, and accountability…. America, again, is a
Government of laws, not of men. What protects us from that knock on the door in
the middle of the night is the law.


President Bush may believe FISA is unconstitutional. He may believe FISA’s procedures too cumbersome to adequately protect the American people. Nevertheless, FISA is the law of the land. Nothing in the U.S. Constitution authorizes the president to simply disregard, violate, or circumvent provisions of federal law he or she deems unconstitutional or impracticable. As long as FISA is the law of the land, President Bush must comply with it. If President Bush believes FISA must be changed in light of the exigencies of the “War on Terror,” our system of government mandates that he should try to get Congress to amend the law. Simply ignoring the law and violating the law are not permissible options for the president.

The righteous and high-minded members of Congress who sat in judgment of and prosecuted President Clinton believed they were articulating the standards by which all presidents should be judged. In assessing President Bush’s authorization of warrantless domestic spying in violation of FISA, the arguments leveled by the Republicans who impeached and tried President Clinton should not be overlooked or forgotten.
 

The law clearly states that the criminal wiretap statute and FISA are "the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance.

That's all very well and good, but can someone please educate me as to who would have standing to call the President on his unlawful activity? If only congress can enforce the law at this level, we all know there is zero chance of that happening under the current adminstration. So all this pontificating and discussion of what is or is not lawful is about as useful as counting the angels dancing on the head of a pin.
 

FISA at 50 U.S.C. sec. 1810 provides that a person, other than an agent of a foreign power, has standing to bring a civil cause of action against any person who violates FISA:

An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover—
(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred.

Under Section 1809, the same conduct can result in criminal sanctions.

So, to answer your questions, not only Congress has standing to call the President on his unlawful activity.
 

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