Balkinization  

Saturday, August 19, 2006

The Bloggerati response to Judge Taylor's ruling in the NSA Case

Guest Blogger

Laurence Tribe

[This posting was based on an e-mail addressed to Adam Liptak at the New York Times]

Dear Adam,

Good story on this morning's front page about Judge Taylor's unusually casual and surprisingly breezy way of dispatching the Bush administration's legal defense of its NSA warrantless surveillance program,. However, I have a reaction that may not be exactly what the "doctor" ordered -- or what you might have anticipated -- that I wanted to share with you and with some of those you quoted, as well as with a couple of other friends and that you should feel free to use as you wish.

It's altogether too easy to make disparaging remarks about the quality of the Taylor opinion, which seems almost to have been written more to poke a finger in the President's eye than to please the legal commentariat or even, alas, to impress an appellate panel, although I certainly agree with the many who predict that, while her reasoning is bound not to be embraced, her bottom line is very likely to survive appellate review.

Had I been in her place, I never would have reached the difficult First and Fourth Amendment issues that she disposed of so summarily when a powerful, and indeed all but impregnable, statutory path to decision at least appeared to be available under the FISA. I also would have been less ready to find standing on the part of the complainants without much more meticulous analysis than Judge Taylor undertook; I would obviously have grappled with the "special needs" exception if I had reached the Fourth Amendment claim; and I can't imagine not addressing the 2002 decision by the FSIA Court of Review. But as legal academics many of us -- and I don't exclude myself from this observation -- sometimes miss the forest for the trees and act as though making an argument water-tight is more important than steering the legal boat in the right direction, much less reaching the correct shore.

When a presidential program that wouldn't have been exposed at all but for leaks that the administration is trying not just to plug but to prosecute is manifestly lawless in the most fundamental respects; when that program challenges constitutional as well as statutory constraints on executive authority; when it is promulgated by an executive branch in the hands of characters who care little about the rule of law, much less about legal nuance; and when the lawmakers who are posturing as the program's critics have in fact engineered a statutory "fix" that amounts to little more than a whitewash in the offing -- when all these things are true, it's not costless to harp on the details of a basically correct legal denunciation of that program to the point of ridiculing the motives and capacities of the judge delivering the blow. Taking that tack is likely to play into the hands of the administration that was caught red-handed.

My point isn't that judges who play the role Judge Taylor did should never be held to account for the shoddy quality of their legal analysis; of course they should, especially in the context of sober second thoughts offered in law reviews and other scholarly venues. But It's those with constitutional blood on their hands who deserve to be chastized most insistently in the public press, and it seems to me something of an indulgence to spend so much time complaining in the media that the judge who called foul used some ill-chosen rhetoric, and that she stuttered and sputtered a bit more than necessary, when the principal effects might well be to underscore one's own professional credentials and one's cleverness and even-handedness and fair-mindedness at the expense of distracting the general public from the far more important conclusion that the nation's chief executive has been guilty of a shamelessly unlawful power grab.

Even at the level of legal analysis, it's a bit much to treat Judge Taylor as though she idiotically and gratuitously injected the Constitution into her argument when all she needed to do was rely on the FISA. Even the FISA, after all, is subject to constitutional restictions to the degree that a particular presidential maneuver that it purports to forbid is arguably immune under Article II from the particular exercise of Article I power on which the FISA prohibition rests. And although Judge Taylor's opinion doesn't do a good job of explaining just why the administration was wrong in arguing that FISA would be unconstitutional to the degree it has the effect claimed by the critics of the NSA program, it remains the case that no explanation of that conclusion would be possible without undertaking a constitutional rather than entirely statutory dissection of the relevant materials.

Moreover, it seems to me misguided to say that Judge Taylor's reliance on the chilling effects of the government's eavesdropping program represents poor legal argument simply because it isn't deeply rooted in settled precedent or entails what Jack Balkin described as a "rather innovative" line of argument. Before many of us grew accustomed to the Rehnquist Court's unfortunately dismissive reaction to "chilling effect" arguments of the sort that were routine in Justice Brennan's day and that came to seem adventuresome only in an era that could take decisions like Laird v. Tatum more or less for granted, the argument that struck Judge Taylor as compelling would have been regarded as altogether routine.

Finally, it's something of a cheap shot to chide Judge Taylor for her failure to exploit Justice Stevens' more than mild hint, in his Hamdan v. Rumsfeld opinion, that the administration's reading of the AUMF was too sweeping by a country mile. Of course Hamdan offered a major crutch that Judge Taylor failed to grab. But, by all accounts, she is no fool. My immediate assumption -- an assumption that explains why I praised her opinion and not just her result in my remarks to Charlie Savage of the Boston Globe the other day -- was that Judge Taylor was being rather clever in her seemingly deliberate and rather daring decision to reject the administration's far-fetched construction of the AUMF without relying on the Supreme Court's June 2006 pronouncement on the subject.

Although my good friend Cass Sunstein, whom I admire in more ways than I can count, seems to remain of the view that the administration's invocation of the AUMF was at least a plausible way around the prohibitive effect of the FISA prior to the rejection of that reading in Hamdan, I was among those -- including some of those whom you quote as critical of the Taylor opinion -- who had no doubt whatsoever, long before Hamdan was handed down a couple of months ago, that the administration was reading the AUMF for vastly more than it could conceivably have been worth and, in the bargain, was twisting Justice O'Connor's words and the Court's conclusions from Hamdi v. Rumsfeld in treating that earlier decision's analysis of the AUMF as support for the far-reaching use the administration sought to make of it. I took the view, in talking with the Boston Globe, that the principal effect of Judge Taylor's admittedly risky decision to go after the government's reading of the AUMF without relying on Hamdan was to make the point, none too subtly, that the administration had been not just skating on thin legal ice all along but had been skating well below the surface of the water, and that it didn't take any hint from Justice Stevens this June to establish the point.

That's a matter of more than academic interest, for it bears on the bedrock question whether the President and his advisors were merely failing to anticipate an invariably controversial recent ruling of a closely divided Supreme Court or were instead, as I believe, betraying a contemptuous disregard for law and a willingness to grasp at legal straws in order to mask a naked assertion of boundless power.

Comments:

Thank you for saying what so many of us have been thinking. I read the opinion and, while it was not the best I have ever read, it was not bad either. I found it logical, analytical, and one-sided only to the extent that there is no viable argument available to excuse the NSA program in question.

www.intel-dump.com
 

Professor Tribe, suppose that the President can prove the surveillance program is a fundamental incident of war, and he can demonstrate that the Fourth Amendment was not violated, and he can also prove that not having the surveillance program would prevent the United States from taking necessary and appropriate action against Al Qaeda. Wouldn't you --- and most other legal scholars and security experts --- agree that the administration might be able to establish these three things?

So, if the President can establish these three things, wouldn't it follow that the surveillance program is authorized by the 2001 Authorization for Use of Military Force (AUMF)? To me, the answer seems obvious: yes.

When the AUMF was enacted in 2001, Congress was concerned that it would pre-empt the War Powers Resolution, and therefore the last sentence of the AUMF is a savings clause to protect the War Powers Resolution. In contrast, there is no savings clause in the AUMF that protects the Foreign Intelligence Surveillance Act (FISA). In the words of the Hamdan decision, houldn't Congress have been "just as concerned" about protecting FISA?

In my opinion, the key here will be for Congress and the administration to work together cooperatively to fashion legislation that clarifies what’s legal and what isn’t. A judicial solution is not the way to go, and most certainly not a judicial solution like the one that was just handed down in Detroit.
 

Andrew,

I'd agree that if pigs had wings they *might* be able to fly, but considering that ostriches do have wings and can't fly, I wouldn't make any big assumptions about it being "necessary and appropriate".

Suppose for example that the President "determinied" that it was "necessary and appropriate" to gang-rape a two-year-old girl and then eat her for dinner.

Q: How would you go about proving that?

A: The same way you'd go about "proving" what you say here.

We have a Consititution and laws for reason, and it isn't because anyone who wrote the Constitution thought the President should break the law any time he thought it was a good idea...
 

Charles, suppose it's 1943. US Intelligence detects a telephone communication from Berlin to New York City. Personally, I think it would be "necessary and appropriate" to place a tap on that call without getting a warrant (by which time the call would have ended). Spying is a "fundamental incident of war" and it is certainly "reasonable" within the meaning of the Fourth Amendment.
 

andrew,
FISA allows you to tap and get the warrant later. Your example is specious.
 

And one wonders how this administration gets away with murder, literally. Pundits and journalists contort themselves around the illogical trashing of our laws in order for this administration "to fight" terrorism. Well, the arrogance of their assertion that they do not need to follow laws, but can't disclose why because of national security reasons, is outrageous. Cheney claims that Lamont's win is good news for al queda. Then, pray tell, how must they react to the Bush administration's degradation of our system of government and freedoms?
 

There are real problems with applying FISA procedures and warrant procedures to incoming calls from Al Qaeda. These problems are not solved by the FISA provision that allows for subsequent warrants.

First of all, if the administration acknowledges the need for warrants, then probable cause must be demonstrated. Thus, in the World War II context, it would not be good enough that there's a 10% or 15% chance that Joseph Goebels is calling someone in Detroit. That's one reason why --- historically --- it has always been deemed "reasonable" to forgo a warrant requirement for wartime spying on transnational communications.

But even putting aside that issue of probable cause, here's what General Hayden has said about the other very real hassles that FISA could cause if applied to Al Qaeda:

"GENERAL HAYDEN: FISA involves the process — FISA involves marshaling arguments; FISA involves looping paperwork around, even in the case of emergency authorizations from the Attorney General. And beyond that, it's a little — it's difficult for me to get into further discussions as to why this is more optimized under this process without, frankly, revealing too much about what it is we do and why and how we do it."

So, obviously, the public does not have all the facts here. But the point is that applying FISA to Al Qaeda has very real drawbacks. As I said in my first comment, that's why the administration and Congress should work together to come up with a better system. But for the time being, the 2001 AUMF is ample authority for what the administration is doing.
 

This comment has been removed by a blog administrator.
 

The question is, what should a president do when the situation changes fundamentally, and he needs to go beyond present law? Bush might be forgiven if he had implemented the procedures immediately, then went to the Intelligence Committee, which would gladly amend the present law to fit new technologies or necessities. The problem is, this president insists he has no obligation to go to Congress, he doesn't have to justify these powers to anyone, ever, and that the program can be kept completely secret ad infinitum. In fact, the whole disagreement is far less about the eavesdropping, and much more about the executive overreach involved in the warrantless part.
 

James, the 2001 AUMF is part of the "present law." Please keep in mind that the 2001 AUMF was enacted LATER than the FISA, and therefore the 2001 AUMF is controlling to the extent that the two laws conflict with each other.

The 2001 AUMF instructed the president to take "necessary and approriate" action to defeat a specific entity: Al Qaeda. Spying is a "necessary and appropriate" action that has always been considered a fundamental incident of war, and spying has always been considered a "reasonable" measure under the 4th Amendment. Bush would have been violating the law if he didn't take such necessary and appropriate action. It's also undiputed that Bush kept congressional leaders informed, on a confidential basis.

People who think that the confidentiality of this program was to fool the American people are not being realistic. The purpose of the confidentiality was to prevent the enemy from knowing that the U.S. was listening.
 

Andrew

"The purpose of the confidentiality was to prevent the enemy from knowing that the U.S. was listening"

Perhaps they might have guessed?
 

Why is it that posters like Andrew always end up with the "Al Qaeda didn't know we listen..." argument?

The bungling of the PRE-9/11 intelligence might have offered some sense of immunity; however, if "Spying is a "necessary and appropriate" action that has always been considered a fundamental incident of war..." how could a rational person reason that the terrorists would not presume that their communications COULD BE COMPRIMISED?

Nobody thinks it's a bad idea to monitor potential terrorist communication. But given the gross mismanagement of the "war" effort here and abroad, there is precious little political capital to expend on such an obvious violation of Executive Constitutional powers.
 

Anyway, back to what Prof. Tribe was saying...

I think the Judge woke up and figured out that there is no reason to take the Administration seriously. They don't believe any of their own arguments anyway, they just shovel shit out there. Arguing for or against the shit is exactly what they want everyone to do.

The Administration is lying about what they are doing, why they are doing it, and even about why they think all of this is okay.

Thanks to Judge Taylor, the more we treat the Admin like grown-ups, the more we empower them to continue their misbehavior.

Slap the child, hard.
 

AltonDarwin, you suggest that, even before the leaking of this surveillance program, terrorists would "presume that their communications could be compromised" and therefore would refrain from communicating across the U.S. border. Has the risk of being intercepted ever stopped an enemy power from trying to communicate? Even now, when they know the risk of interception is higher, there will doubtless be communication attempts, just like there will doubtless be hijacking attempts.

"GENERAL HAYDEN: This program has been successful in detecting and preventing attacks inside the United States."

www.whitehouse.gov/news/releases/2005/12/20051219-1.html
 

I keep hearing from friends I respect that it is alright for their civil liberties(warantless wiretaps) to be stepped upon in this fight against terrorism. As far as I am concerned, the terrorists have already won when our government starts operating with the same tatics as repressive countries.

My friends answers are always the same: "This is the Greatest threat America has ever encountered and we have to do things today that we normally wouldn't do in time of war"

OK. If we had lost WWII, Germany would have had us running around as Nazi servants, and if Hitler had his vision correct, we would have been in year 60+ of being a German Colony.

If we had lost the Cold War, that means that the Communists would have destroyed more of America than we destroyed in the Soviet sphere, and what was left of the Earth would be in Communist hands, and we would be Communist slaves, or just all dead.

I just don't get how today's terrorists can do more damage to America than the last 2 world battles of "good v. evil" that our delusional puppet keeps phrasing this war as.

Somebody, please tell me how terrorism by extreme Muslims( a vocal and lethal Minority of all Muslims) is going to bring down the United States. Are we talking about enough chemical warfare, nuclear warfare, or some other form of aggression that I am not aware of? How long will this" most serious threat in U.S. history" take to manifest itself with multiple battle successes or terrorist attacks?

Is current Terrorism threat the greatest in U.S. history and such a strong threat that it is worth giving up the Constitution and the Bill of Rights
 

General Hayden's remarks were made at a press briefing held by Att'y General Gonzales. Why would anyone still believe anything Gonzales (and by extension General Hayden, since he was up for confirmation to DCI at the time, I think) says regarding the White House's interest in the rule of law?

I mean, honestly, Gonzales is much more White House Counsel than he is the chief law enforcement officer of the United States and its citizens, don't you think?
 

Barkleyq, no one that I know of is suggesting that we give up the Constitution and the Bill of Rights. Even Professor Tribe acknowledges in his blog post above that "I never would have reached the difficult First and Fourth Amendment issues." He has difficulty seeing how this surveillance program violates the Bill of Rights, and so do I. The issue that Professor Tribe emphasizes --- and that people like me disagree with him about --- is an issue of statutory interpretation.

As for what damage a bunch of terrorists could do, well, let's just say we're all very fortunate that they didn't crash those two planes into a nuclear reactor. Also, my understanding is that the plane that went down in Pennsylvania was headed for the US Capitol, and I would not consider the US Congress to be expendible. A so-called "dirty bomb" could quickly kill hundreds of thousands of people, and render Manhattan uninhabitable for decades. Let's not pretend that the U.S. is invulnerable. Technology has its ups, and (alas) its downs.
 

Being this "war" will probably never end, does this mean the prez gets to do whatever the f%^k he wants forever?
 

Judge Taylor is the face of Al Qaeda in our midst. She needs to be taken out and blown away on national television for betraying her country in the moment it needed her to assert the Commander in Chief's power to protect America from its infinite enemies at home, abroad, in the press and the private and government sectors.
 

Anyway, it's been nice chatting. G'night.
 

Andrew: People who think that the confidentiality of this program was to fool the American people are not being realistic. The purpose of the confidentiality was to prevent the enemy from knowing that the U.S. was listening.

DOJ motion to dismiss ACLU v NSA: Instead, any reasonable person who communicates with individuals associated with al Qaeda or affiliated terrorist groups must assume that his or her communications with such individuals could be subject to surveillance by other means or entities, including an order of the Foreign Intelligence Surveillance Court, a Title III law enforcement warrant, or by other governments or law enforcement authorities.

The only secret was that the United States government would break the law.
 

I guess I really blew my analysis. I have been under the impression that this and the other cases were about "warrantless" wiretaps. Nobody doesn't want terrorists being wiretapped; it's when it is without warrants and unsupervised and at the whim of our puppet leader that I and others object.

Also, from what I have read previously, you have asserted as a fact that the AUMF was enacted with wiretaps included. I'm wondering why so many Congressman would state that your interpretation wasn't the same as theirs. So who do I believe, someone who Voted on the act or the interpretation of a Bush
supporter? On this thread, Bush has done No wrong in your posts; it's everyone else who is missing it that we have a great leader who does not make mistakes(Bush's own words)!

One final question Andrew: When will we have won the war on terror and have back the rights taken away in the name of war. Is it ther defeat of Al Queda, Iran, the group in Spain, white supremacist in America, Columbian drug lords reigning terror in their country, or when?

This war on terror is just like the war in Iraq. A lot of hype, rah rah Americanism, and most importantly, with no realistic definition of when success is achieved and thw "war" is over?

As an addendum, I just read Roberto Sumatra-Bosch's post. This is one sickie and should be reported to the federal authorities. I know people who feel the same way about our current puppet leader, but you do not spew this crap on a public thread and expect no recriminations. Yes, you post is free speach, but it is also a call to assasinate a federal official and as such, should be treated as a "terrorist threat and you should be locked up with no rights to a public or timely hearing. You are the worst type of terrorist because here in America posting this crap.
 

Professor Tribe: Very well said, in both substance and style.

barkleyq: Also well said. All sense of proportion seems to have gone out the window with regard to exactly the level of threat embodied by radical Islam. It is simply not anywhere near what this country faced in either the Cold War or World War II.

andrew: The president has been accruing power he has not been given by the Constitution, and it would be prudent to keep in mind that "no emergency can create power." Your statement that "no one that (you) know of is suggesting that we give up the Constitution and the Bill of Rights" is directly contradicted by your attempts to bolster weasel arguments for the Bush Administration.

roberto sumatra-bosch: Here's hoping that you earn the prosecution you so richly deserve for threatening a federal judge. Stupidity should be painful, and if the degree of such pain were determined by the level of stupidity, you would be in line for something truly excruciating. Both your hysteria and your ignorance are pathetic.

PBI
Sensen No Sen
 

P.S. PBI and Barkleyq, don't be so gullible. Roberto Sumatra-Bosch is a liberal troll pretending to be a far-right nutcase.

JaO, the DOJ motion to dismiss ACLU v NSA is entireley correct.
Any fool should know that his communications with Al Qaeda "COULD BE subject to surveillance." But up until disclosure of this program, the misfits didn't understand the likelihood.

Barkleyq, the 2001 AUMF did not explicitly mention wiretapping. Likewise, the FISA did not explicitly mention Al Qaeda. And, the Constitution doesn't explicitly mention either wiretapping or Al Qaeda. Therefore, we must use our powers of deduction.

However, the 2001 AUMF does explicitly address those responsible for the attacks in NYC in 2001. I am not aware that white supremacists in America, or Columbian drug lords, or other assorted goons on various continents were responsible. Probably a good measure of success would be when Bin Laden, Zawahiri, Omar, and the rest of that gang are no longer at large.
 

andrew: Regarding Roberto Sumatra-Bosch, after a search for other comments posted under that name, I think you're correct. Having seen similar comments by others posted in seriousness elsewhere, I'm not sure I'd characterize my response as gullible, but point taken.

PBI
Sensen No Sen
 

How breathtakingly paternalistic. Thank god for people like Larry Tribe who can substitute his own superior judgement for we the ignorant masses. Stalinism lives!
 

Andrew,
The "AUMF implicitly supersedes prior legislation" argument was floated by the Bush administration in Hamdan, and was clearly shot down. Hamdan certianly treated the AUMF/prior law issue, and it did not come out your way at all. How can you convince us to believe your argument (that the AUMF implicitly overruled FISA) when the SCOTUS very recently demolished that very argument regarding another prior congressional enactment?
Another question: Let's assume Hilary (ugh) is elected in '08. Do we really want to allow her to do absolutely anything she wants, ignoring and violating any and all prior laws, flippantly justifying it with the Andrew Mantra: "AUMF supersedes all earlier laws that, in MY interpretation, relate somehow to the War on Terror, so bug off, I can do this".
I'm a 28-year Republican, and I'm quite sure that's an America I do not want to live in.
 

Ok...now that all of this is 'so clear' to all of us........where are the arrests from all of this eavesdropping? And, just where does this information go to? Who has the information from all of this eavesdropping? Who knows of the conversations YOU might have had with your lawyer, doctor, financial advisor, therapist, priest, minister,rabbi, dear friend, parent, chld, etc.,etc. Where does all of this get put? Who might be using this information and to what means? What is wrong with you people.......we are being violated......wake up!
 

Andrew,
The "AUMF implicitly supersedes prior law" argument was trotted out by the Bush administration, and unceremoniously shot down in Hamdan. How are we to adopt your reasoning, when the SCOTUS very recently rejected it regarding another prior enactment of Congress that the administration claimed was AUMF superseded?

Let me ask you another, and actually more important question. Let's assume that Hilary (ugh) is elected in '08. Do we want to give her the ability to violate any laws she chooses, using the Andrew Mantra: "AUMF supersedes prior law that I DETERMINE relates to the War on Terror, so bug off--I can do as I please"?
I am a 28-year Republican, and that's an America I surely don't want to live in.
 

JohnL2006, please be more specific. What prior law did the administration say was superceded by an AUMF, in the Hamdan case? Are you referring to the Detainee Treatment Act (DTA)? I'm not aware that anyone argued that the DTA was superceded by an AUMF.

Also, you say that this is the Andrew Mantra: "AUMF supersedes prior law that I DETERMINE relates to the War on Terror, so bug off--I can do as I please."

That's not my mantra at all. Are you saying that the 2001 AUMF didn't authorize the President to do anything at all? If you admit that the AUMF authorized the president to use force against Al Qaeda, do you really think that the AUMF intended to grant no power to listen in on Al Qaeda communications? Geez.
 

Andrew,
You said,"JaO, the DOJ motion to dismiss ACLU v NSA is entireley correct.
Any fool should know that his communications with Al Qaeda "COULD BE subject to surveillance."
I agree, any body communicating with elements overseas that could be even REMOTELY considered possible terrorists or terrorist elements, should EXPECT to be monitored by at LEAST the US, not to mention any of the other intelligence services in the "Coalition of the Willing". Your argument though, I respectfully feel is a strawman, and one that has been run up the flagpole by not only the administration and it's supporters, but horribly misinformed media "pundits".
Back in the 1980's there was a well liked President that use to like to say "Trust, but VERIFY!". According to the Constitution of the United States, The Bill of Rights is what gives the People a means to trust. The Seperation of Powers, (checks and balances as illustrated in this instance in Judicial Review to grant the Governments Actions with Warrants)is what gives the people Verification of that Trust.
In other words, any argument that the government makes that this is a program that listens to Terrorists and Terrorists only is completely unverifiable without warrants. Without Judicial Review, I have NO IDEA that what the Government is saying is true or not. For all I know, the vast NSA machine is being used to manipulate international corporations, spying on political enemies, getting insider trading information, blackmail, etc. Without the Judicial Review Process as displayed through the issuance of Warrants in the FISA Courts, I have no choice but to assume the worst. This shakes the people's social contract with their government to the core. Since this is a Government By the People, For the People, and Of the People, this lawlessness destroys the Government and therefore destroys the people.
This can not stand. If it is allowed to stand, then 5 years, 10 years, 20 years down the road, this precident WILL be used against the People. As far as I am concerned, this is ALREADY being used against the people.
The botom line is this; The Government says this is a "Terrorist Surveillance Program". My answer to that is......Prove it. If the Government had been following the FISA Statute, I would have that proof, the fact that the Government IS IN CONTRADICTION with the FISA Statute prooves the opposite to me. The Fact that the Government insists on NOT following the statute prooves to me that this is NOT what the Government says it is.
 

Andrew,
You said,"JaO, the DOJ motion to dismiss ACLU v NSA is entireley correct.
Any fool should know that his communications with Al Qaeda "COULD BE subject to surveillance."
I agree, any body communicating with elements overseas that could be even REMOTELY considered possible terrorists or terrorist elements, should EXPECT to be monitored by at LEAST the US, not to mention any of the other intelligence services in the "Coalition of the Willing". Your argument though, I respectfully feel is a strawman, and one that has been run up the flagpole by not only the administration and it's supporters, but horribly misinformed media "pundits".
Back in the 1980's there was a well liked President that use to like to say "Trust, but VERIFY!". According to the Constitution of the United States, The Bill of Rights is what gives the People a means to trust. The Seperation of Powers, (checks and balances as illustrated in this instance in Judicial Review to grant the Governments Actions with Warrants)is what gives the people Verification of that Trust.
In other words, any argument that the government makes that this is a program that listens to Terrorists and Terrorists only is completely unverifiable without warrants. Without Judicial Review, I have NO IDEA that what the Government is saying is true or not. For all I know, the vast NSA machine is being used to manipulate international corporations, spying on political enemies, getting insider trading information, blackmail, etc. Without the Judicial Review Process as displayed through the issuance of Warrants in the FISA Courts, I have no choice but to assume the worst. This shakes the people's social contract with their government to the core. Since this is a Government By the People, For the People, and Of the People, this lawlessness destroys the Government and therefore destroys the people.
This can not stand. If it is allowed to stand, then 5 years, 10 years, 20 years down the road, this precident WILL be used against the People. As far as I am concerned, this is ALREADY being used against the people.
The botom line is this; The Government says this is a "Terrorist Surveillance Program". My answer to that is......Prove it. If the Government had been following the FISA Statute, I would have that proof, the fact that the Government IS IN CONTRADICTION with the FISA Statute prooves the opposite to me. The Fact that the Government insists on NOT following the statute prooves to me that this is NOT what the Government says it is.

smcguire27
 

Why this continual need to emphasize how "unusually casual and surprisingly breezy" etc. the opinion was? Even Prof. Tribe has to go this route. So tiring.

Anyway, how could the judge ignore the First Amendment issue when it seems that the plaintiffs brought the case especially because their expression/association rights were being violated? The suit by academics, reporters, and advocates clearly has a 1A component. It clearly went to standing.

The special needs issue could have been dealt with, but some have noted that the gov't really didn't do a great job defending themselves on the merits. Thus, was this even necessary to bring up? Anyway, she covered a lot of ground. And, the SN area actually opens up a can of worms -- it suggests the administration has a leg to stand on.

Finally, is the opinion really "unusually" breezy etc? It is over 40 pages, covers close to ten different subject areas, and clearly is going to be tossed aside when the appellate court covers it. Remember that tome the appellate panel gave on the McCain/Feingold legislation ruling? How useful was that?

Are district court rulings in generally really so superior to this one? Those law professors can find a lot to fault SC rulings too. Finally, I agree on the Hamdi point -- it underlines the administration was wrong based on law handed down years before last June.

Good pt.
 

This is rather broadly phrased: "do you really think that the AUMF intended to grant no power to listen in on Al Qaeda communications?"

With a FISA warrant, obviously they have this even when the communication involves domestic chatter. Let's not even go into battlefield conditions.

Where is the stopping point? Al Qaeda cells possibly exist in the U.S. apparently. So, via the resolution, on the sayso of the executive, can someone possibly friendly with them in some fashion (even solely to interview them on legit topics) have their phones tapped w/o a warrant?

"anything at all" is a strawman that is rather unproductive. per Hamdan, AUMF did not even justify the military tribunals set up. Does it justify overriding a law protecting domestic citizens from warrantless surveillance ala FISA?

I'd be rather wary to assume that.
 

I suppose that Joe and JohnL2006 are referring to the Court’s language in Hamdan denying that the 2001 AUMF superceded the UCMJ in any way. The Court in Hamdan criticized the President for failing "to satisfy the most basic precondition--at least in the absence of specific congressional authorization--for establishment of military commissions: military necessity." I don’t think that the administration will have any trouble proving the necessity of the present surveillance program, which narrowly targets transnational Al Qaeda communications.

Smcguire27, I sympathize with you, but it's a sad fact that the government must do some things in secret. The CIA, for example, would not be very effective if all its activities were reported in the NY Times. Even if the FISA courts were to micromanage this surveillance program, you still wouldn't know if the FISA court's doing a good job or not, because the FISA court itself operates in secret.

The President informed congressional leaders about this secret program from day one. It was their duty to find out enough about the program to feel comfortable with it. We have to trust our elected representatives to some extent.

If you're correct that the vast NSA machine is possibly being used to manipulate international corporations, spying on political enemies, getting insider trading information, blackmail, et cetera, then maybe we should just get rid of the NSA, and surrender to Bin Laden. Opening the NSA up to complete public scrutiny would be tantamount to getting rid of it.

If Congress wants to go along with your plan to have the FISA courts review every wiretap that we put on Al Qaeda, then Congress can go ahead and try. All I'm saying is that Congress hasn't done so yet.

I disagree with you that the President has not been obeying FISA. The 2001 AUMF came after FISA, and the 2001 AUMF impliedly granted the President at least some authority to surveille the enemy.
 

as Judge Taylor wrote, there are no inherent powers that do not arise from the Constitution.

Moreover, Pres Bush was acting here against direct Congressional intent set down after WWII, after Vietnam. FISA was passed in response to late 70's Congressional Committee hearings that indicated Presidents had been making illegal wiretaps. Congress passed FISA and thereby did not take away the legality of Executive orders to wiretap as much as set down a specific program in order to have a check and balance on Executive power.

this ruling doesn't make wiretapping illegal, it simply tells this administration that in order to undertake wiretaps it must comply with the law, nothing more, nothingless.

Judge Taylor took an opportunity with this decision to explain some basic civics 101 lessons to an administration that has constitutional blood on its hand and that has been making a power grab without basis.

Judge Taylor told Pres Bush that his words to the American People are promises. He told us that the NSA program was consistent with the US laws and Constitution, and Judge Taylor let us all know that when the President was given the opportunity to prove this, he failed.

As Prof Tribe explains, it is more appropriate to reach a decision based upon statutory interpretation if possible, rather than on a Constitutional argument. However, as this President continued to tell the American People that all of his powers are inherent and based in the Constitution, i am extremely thankful that some excellent lawyers argued well and one courageous Judge listened.
 

Andrew, Tribe, et al.: One good reason the AUMF might not come up is that the Judge wrote that the TSP program has been in effect "for more than five years." (pp. 38, 31) That would predate both the AUMF & 9/11, so the AUMF doesn't make a good defense then. I'm not clear, though, on whether the ruling would be just on the program as it now exists, or as it has been used over its course.
 

Andrew,
The prior enactments that the Govt in Hamdan argued were superseded by AUMF were: part of the UCMJ (10 USC 821), and the four Geneva Conventions adopted in 1949.
The SC held that the AUMF granted a general authorization to act, but such action would be "under the Copnstitution and laws, including the laws of war." The justices threw out the window the Govt's argument that those prior laws were silently eclipsed by the AUMF; they demolished what is most certainly your current argument. But hey, who are THEY to say what the law is--Andrew knows it better!

As for your quite lame straw argument, OF COURSE al Qaeda phone calls should be wiretapped, and OF COURSE the Congress expects that to happen. We've now been told by congressmen who voted for it, and most of the justices of the SCOTUS, that that very desirable wiretapping must take place under current law--FISA. And the FISA Court will certainly approve any application for same--they've denied only a handful out of thousands.
The bottom line is: if FISA doesn't match the modern needs of the President, have Congress change it. Don't just ignore and violate the law, because its easier, or more convenient, or the President feels like it. Allowing THAT cat out of the bag is ultimately a bigger threat to the Republic than any we face overseas. That's why the SC decided Hamdan the way they did, making a point that takes willful ignorance to miss.
 

JohnL2006, thanks for the clarification of your previous comment. Contrary to what you said in your most recent comment, I have never expressed a viewpoint one way or the other about whether the 2001 AUMF "eclipsed" any aspect of the UCMJ. If I ever do form an opinion on that question, and my opinion differs from that of the Supreme Court, perhaps that would be a better time for you to ridicule my opinion by saying that my argument was demolished.

The Court's test in Hamdan for whether the AUMF superceded some aspect of a prior statute was whether the President can "satisfy the most basic precondition ... military necessity." You admit that there may be a military necessity when you say in your most recent comment that perhaps "FISA doesn't match the modern needs of the President...." Sounds to me like you're singing the President's tune, whether you realize it or not. :-)
 

Wow Andrew. You demonstrate that you are unable to even parse and quote the statements of the commenter *immediately above you* honestly and competently: JohnL clearly admitted nothing about whether *he* thinks FISA is adequate or not for current needs, but rather that if someone out there does--especially if they have a lot of influence over Congress, like, say, a Republican President--*then* they should ask Congress to change it.

If you can't understand an if/then statement, it's no wonder why you are incapable of properly analyzing why a very terse and broad statutory enactment like AUMF is unable to impliedly repeal or amend very specific and clear statutory provisions such as FISA. (Or that you cannot see why the most plausible interpretation of the AUMF that is consistent with existing statutes is that it authorizes the President to use military force in foreign lands against the persons who perpetrated the Sept. 11th attacks without breaking any existing laws.)
 

Eric, give me a break. You say I'm "unable to ... quote the statements" of other people. I didn't misquote anyone. Why don't you actually look at the words I put in quotes, and compare them with the words as originally written? You won't find any difference.

You say that "JohnL clearly admitted nothing about whether *he* thinks FISA is adequate or not for current needs...." What JohnL2006 said was, "if FISA doesn't match the modern needs of the President, have Congress change it..." Thus, JohnL2006 acknowledged the possibility that *perhaps* FISA doesn't match the needs of the President. That's why I said to JohnL that, "You admit that there may be a military necessity..." Note the word *MAY*.

I still have yet to hear you or anyone else explain why the 2001 AUMF has a savings clause at the end, preventing the War Powers Resolution from being superceded. Wouldn't Congress have been "just as concerned" about doing the same for FISA, if Congress really wanted FISA to fully govern every military activity authorized by the AUMF?
 

Again, "every military action" is rather broad. What does this mean? Is this relevant to the current case, involving members of the academy etc.? Does this mean any targeting of domestic individuals, even American citizens who are not shown to be 'foreign agents' w/o even a FISA warrant?

Anyway, since 9/11, Congress passed various laws, including the Patriot Act. Sen. DeWine, a conservative Republican, suggested legislation that would have amended FISA to weaken the guidelines. The administration said that wouldn't be necessary.

They want to have their cake and eat it too. Should we operate the fork for them?
 

Laurence Tribe is a hypocrite. He criticizes law professors who comment on topical issues outside of law reviews, but he himself wrote God Save This Honorable Court, advises Democrats how to Bork judicial nominees, appears on Charlie Rose to debate controversial topics, and fails to criticize Erwin Chemerinsky's championing of Judge Taylor's poorly reasoned opinion in Slate magazine, which, last I checked, is not a scholarly publication. In this letter to Adam Liptak, Tribe sounds like he is writing for the benefit of the Democratic base, i.e., it reads like one of those op-eds written by Richard Holbrooke that is clearly just an application essay for the job he wants if Democrats gain power in 2008. Clearly Richard Holbrooke writes op-eds to appease the Democratic base because he wants to be Secretary of State and clearly Laurence Tribe wrote this letter because he wants to be appointed to the Supreme Court if Democrats are in power when there is another vacancy. It's probably also why he stopped penning his treatise -- without any deep-level analysis of present cases, he can honestly say he hasn't really delved into them and avoid answering questions about his judicial philosophy at a future hearing before the Senate Judiciary Committee. Which would be hypocritical.
 

Pretty lame, it seems to me.

Tribe all but concedes the opinion is poorly reasoned and incomplete, but it doesn't matter because he likes the result.

I would think that if he likes the result and thinks it's important, all the more reason to want a competent judicial effort.

That's what comes of sniffing too many penumbras.
 

Andrew,

I notice that your position seems to have evolved over the past months. As I recall, you once expressed a hope that there would be a judicial resolution to NSA controversy. (I don't mean to imply that there is anything wrong with such evolution.)

But since you hold to the position that the AUMF does legalize what FISA forbids, why do you not favor an expeditious declaration of that by the courts? If what is going on really is lawful, lets get on with a forthright test case of the merits.

Rather, you now propose some legislative remedy. (While I think the current program is unlawful, I am willing to consider careful revisions to legislated policy. I do think FISA could be improved by prudent amendment. And I have long argued that what Bush should have done in 2001 was to seek enhanced legislative authority.)

But the devil is in the details. I am curious about what sort of new policy you would favor. I cannot see any justification for the Bush/Specter bill, which would completely gut FISA. That is obviously the administration goal. Is that what you now lobby for?
 

May his Tribe decrease.
 

Andrew opens with some speculations, which if stipulated might support a certain conclusion. But here are some things that are not speculative: what conclusions should we draw from them?

1.) When the framers wrote "war" into our Constitution they meant "armed struggle between nations," rather than "campaign to end an injurious condition."

2.) Terror is not a nation, but rather an injurious condition.

3.) The phrase "War on Terror" fails to fit the meaning of war written into the Constitution.

The clear conclusion is that AUMF is unconstitutional on its face; the Constitution in no way allows for the granting of vast war powers to the exectutive merely to campaign against an injurious condition. By the logic used on September 18, 2001, to pass AUMF, we could have as easily given the same powers to Lyndon Johnson to fight the "war" on poverty (which kills many more than terror.) It was a deriliction of duty that Congress passed AUMF in the first place, and it is a travesty that it has taken so long for the judiciary to begin the process of undoing this mistake. Judge Taylor should be lauded for courage rather than nitpicked for form. The minions of PNAC will see that all such nitpicking is done in a higher court; meanwhile true patriots should be standing and cheering and rallying to defend Taylor's bravery against the coming onslaught.

Thank you, Professor Tribe, for helping keep eyes on the ball, on those with "constiutional blood on their hands."
 

Ever since bits of this program have become public (Thank you NYT), I have been struck by the inconsistency of the opposition. They seem to hold two conflicting opinions at once.
1) Al Queda already knew they were being listened to when they called the US, therefore the NYT did nothing wrong in revealing specific details of this classified government program.
2) This program is a horrible affront to our civil liberties and needs to be shut down right now, so people in the US have the ability to communicate with foreign terrorists without the danger of being overheard by the US government, UNLESS the government can provide probable cause and fill out the right legal forms.
Roughly stated, this means when a foreign Al Queda operative on a disposable cell phone calls another disposable cell phone in the US, only non-US governments can legally be listening. Wow, this makes me feel so safe. Not.
 

JaO,

I have no objection to the courts overturning Judge Taylor, and affirming that Congress and the President have power to authorize the current program, or to fashion a different program. What would be inappropriate would be for the courts to grab this power from the political branches, and create a judicial solution.

You're right that the devil is in the details, many of which the public does not know about. Therefore, I'd leave it to Congress to negotiate quietly with the President. If they can't agree, then of course the Presdient has the veto power.

I really don't know enough about the Bush/Specter bill to comment.
 

pubilus at "Legal Fiction" has a diffent take on why the ruling was inappropriate.

http://haloscan.com/tb/publius/115596089539257981

His argument is that proper proceedure was ntot followed. The case was in its "pleadings" stage, and had not gone to "discovery" so the facts are not there to support ANY ruling as yet.

I think I have to agree with his conclusion.
 

Wow, this makes me feel so safe. Not.

A trip to see the wizard might help you.

I long for the good old days of "give me liberty or give me death". The current slogan of the right -- "take my liberties, just please, please, please don't let those nasty terrorists get me" -- lacks the same panache.

Andrew, your suggestion about the AUMF is inconsistent with a number of public statements about the domestic spying program:

1. On December 19, 2005, Attorney General Gonzales gave a press conference after the surveillance was revealed by the New York Times. He was asked, “If FISA didn’t work, why didn’t you seek a new statute that allowed something like this legally?” He responded that they had discussed that with certain members of Congress and were advised, “that was not something we could likely get.” http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html

2. At the same press conference (December 19, 2005), Attorney General Gonzales stated that the authorization for the use of force against Al Qaeda on September 12, 2001, satisfied the FISA requirements. It obviously makes no sense to claim that Congress actually did authorize the surveillance while also saying that Congress would not amend the law to authorize it.

3. On January 23, 2006, General Michael Hayden, the director of the NSA from March 1999 until the Spring of 2005, gave a speech in which he said that President Bush approved the warrantless surveillance because the NSA needed a “softer” standard (“softer” than the probable cause required by FISA) such as “reasonable basis to believe”. http://www.dni.gov/release_letter_012306.html.

However, on July 31, 2002, James A. Baker, the Justice Department’s Counsel for Intelligence Policy, testified before Congress on a bill that would have amended FISA to change the standard for certain warrants under FISA from “probable cause” to “reasonable suspicion”. This change would have permitted some, but not all, of the illegal surveillance. He told Congress that the Bush Administration was not prepared to support the change because it “might not pass constitutional muster”. Mr. Baker warned that if the change were not constitutional, it might cause problems with later prosecutions. http://www.fas.org/irp/congress/2002_hr/073102baker.html.

Thus, Hayden's statement contradicts what the Administration itself told Congress.

4. The AUMF authorizes "all necessary and appropriate force against those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided" the attacks of September 11, 2001. Senator Daschle wrote in the Washington Post (December 23, 2005) that the Bush Administration twice suggested alternative language for the AUMF:

A. On September 12, 2001, to add a clause expanding the scope to allow the use of force to "deter and preempt any future acts of terrorism or aggression against the United States."

B. Just before the Senate vote, to add the words "in the United States and" after "appropriate force" in the text.

Congress rejected both of these proposed changes.

The rejection of this language demonstrates beyond any doubt that Congress did not intend the AUMF to authorize surveillance of US citizens.

I can only conclude that the Administration is being disingenuous or even dishonest in asserting the AUMF as a justification.
 

Andrew,

Of all the scenarios I have ever seen, I don't think anyone has ever suggested that the courts somehow "fashion" a solution.

All the real or hypothetical cases I have seen discussed involve some up-or-down ruling on the legality of what the President is doing.

I'm sure you would like to see the higher courts overrule Judge Taylor, as you said. I am asking you more than that: Do you favor the President proceeding in some straightforward test case to the the merits of the program, or do you think Bush should continue to take refuge on procedural questions such as standing and privilege? Quite obviously, to date his whole strategy has been to avoid reaching the merits in court.
 

JaO, if someone has standing, and the questions are properly before a court, I have no problem with a court addressing the merits, assuming that the court is reasonable, and fairly applies the law.

Mark Field, I never said anything inconsistent with the fact that the administration didn't think they could get Congress to improve upon the existing laws regarding surveillance of Al Qaeda.

You say that it "obviously makes no sense to claim that Congress actually did authorize the surveillance while also saying that Congress would not amend the law to authorize it." On the contrary, laws are often passed that contain tit-for-tat provisions that could never be passed individually. Likewise, laws are often passed in circumstances that eventually become less favorable (i.e. Congress was willing to grant more in the wake of 9/11 than they would be willing to grant later on, when memories fade).

Regarding probable cause, I already said above that one problem with a warrant requirement for wartime surveillance is the probable cause requirement. The speech you cite by General Hayden merely confirms what I said. Believe it or not, there are sometimes exceptions to the warrant requirement, primarily because a probable cause standard is not always "reasonable." It sounds from your quote of Mr. Baker that the Justice Department was saying that a probable cause standard is necessary IF a warrant is required. That sounds correct to me.

You find significance in the fact that the AUMF was modified in certain ways before being enacted. Even if such modifications are given great weight, those changes are not in any way inconsistent with the idea that the 2001 AUMF targets Al Qaeda --- the changes arguably excluded other unrelated terrorist organizations from the sweep of the AUMF, but did not remove Al Qaeda from its sweep. The surveillance program at issue is directed at Al Qaeda, as I understand it, so I don't understand your point. Also, I have no problem acknowledging that the AUMF did not authorize the use of additional force in the U.S., and that's why I would not support using the AUMF to justify tapping purely domestic calls (i.e. both ends in the U.S.).

In sum, I don't see any inconsistency between what I've said in this thread, and the sources you cite. You haven't described anything that shows the Administration is being disingenuous or even dishonest in asserting the AUMF as a justification.
 

Andrew, you said, "Any fool should know that his communications with Al Qaeda "COULD BE subject to surveillance." But up until disclosure of this program, the misfits didn't understand the likelihood."

That statement is patently false, yet conservatives still preach it as a lame excuse. The president himself told the whole world that we would be monitoring their conversations. I don't have a link handy, but it was posted on the White House web site from one of Bush's speeches. He made that statement specifically well before this illegal program surfaced (some time in late 2001 or 2002, I believe). If anyone remembers this link, please post it. When someone later pointed that out when the White House tried to claim the same thing, they had the even more lame reply that "the terrorists would have forgotten about that." Or something to that effect. The point is, Bush himself put the world on notice that the US would be monitoring Al Qaeda communications. So to now claim that this program was kept confidential to keep Al Qaeda from knowing that the US was listening to their conversations is more than a little hard to swallow unless you assume that Al Qaeda is as incompetent as the Bush administration.
 

Andrew: JaO, if someone has standing, and the questions are properly before a court, I have no problem with a court addressing the merits, assuming that the court is reasonable, and fairly applies the law.

Well, DOJ has has standing all along to initiate a test case in the FISA courts. Even with a home-court advantage there, the administration has shrunk from doing so.

I am not saying standing should be granted illegitimately. But it would be much easier to get a test case even in the District Courts if the government would facilitate it. If necessary, Congress can always provide a statutory assist to granting standing, and the President's party controls there.

So we have determined that if the President is compelled to go to court, you acknowledge that he should show up. Do you also think he has a good-faith duty to facilitate such a test? After all, if his theory proves to be wrong, and there is no legal excuse for violating FISA, there apparently are ongoing felonies being committed by Bush and his subordinates. Does not his constitutional duty "to see that the laws be faithfully executed" obligate him affirmatively to seek expeditious resolution of the merits?
 

Found the links in a Glenn Greenwald post from December 2005. Glenn provides specific instances that Bush himself boasted of his efforts and Glenn has links back to the White House speeches. Please stop passing on this meme that talking about this is helping the terrorists unless you really don't care about the truth.
 

You say that it "obviously makes no sense to claim that Congress actually did authorize the surveillance while also saying that Congress would not amend the law to authorize it." On the contrary, laws are often passed that contain tit-for-tat provisions that could never be passed individually.

This makes no sense to me in the context of my quotes from Gonzales. Gonzales asserted two inconsistent facts: (1) that Congress DID (implicitly) amend FISA to authorize the domestic spying program when it passed the AUMF; (2) that Congress REFUSED to amend FISA to permit the domestic spying program. These statements can't both be true; the issue of political bargains is a red herring.

Believe it or not, there are sometimes exceptions to the warrant requirement, primarily because a probable cause standard is not always "reasonable." It sounds from your quote of Mr. Baker that the Justice Department was saying that a probable cause standard is necessary IF a warrant is required. That sounds correct to me.

I'm aware of the exceptions to the warrant requirements. Section 1801(f)(1) already is limited to "cases in which a warrant is required".

That leaves Hayden with nowhere to go. If it's necessary to violate the 4A in order to spy, then it can't be done. Period. If it's not necessary, reference to warrants is a red herring in light of the Administration's rejection of the proposed amendments to FISA and the existing language of Section 1801.

You find significance in the fact that the AUMF was modified in certain ways before being enacted.

No, I found significance in the fact that the AUMF was NOT modified.

The surveillance program at issue is directed at Al Qaeda, as I understand it

That is not my understanding. You are the only person I've ever seen suggest that the domestic spying program is so limited. If that were the Administration's position, it has never said so publicly.

In any case, except in the (hopefully) rare case in which the Al Qaeda member is also a "US person" who is targeted intentionally, then FISA would not prevent intercepting Al Qaeda calls. Even in such limited cases, warrants could still be issued when necessary, since the FISA court is unlikely -- to put it mildly -- to refuse a warrant in such a case.
 

have not yet heard this angle on the right-wing unified response to the "quality" of Judge Taylor's decision: isn't it grossly hypocritical of the lap-dog media Bush cheerleaders to use this line of attack, when they celebrate (almost to the point of gloating) George Bush's lack of intellectual curiosity (or acuity)? And Mr. Bush himself apparently doesn't put legal scholarship high on the list of qualifications for the bench, having nominated a woman who never sat on the bench in her life to the Supreme Court less than a year ago....
 

More ammo for you Mark:

From Glenn Greenwald:

"Secondly, it was revealed yesterday that when the AUMF was being drafted, the Administration wanted Congress to grant it the authority to use its war powers inside the U.S., and Congress refused to give that authority. For the Administration to now claim that it had the authority from Congress which Congress actually expressly refused to give it is about as dishonest as it gets. As Justice Frankfurter said in his Concurring Opinion in Youngstown:


It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld 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.


Finally, not a single Senator has said that they discussed at the time that the AUMF was enacted that they were giving the President an exemption from FISA, and scores of Senators have said that this is the opposite of what they understood they were doing when they enacted AUMF. On its face, that law allows the President to use military force against Afghanistan and Al Qaeda, and does not "amend" FISA to allow the President to eavesdrop on American citizens without bothering to comply with it."
 

Thanks dilireus. As usual, Glenn says it much more forcefully and elegantly than I can.
 

Dilireus, the Glenn Greenwald blog post to which you refer cites multiple instances in which President Bush publicly discussed the provisions of the Patriot Act. If that makes Bush guilty of helping terrorists, then Congress is also guilty, because Congress put those details about law enforcement techniques into the Patriot Act. In contrast to those remarks Bush made about the Patriot Act, Greenwald does not cite any instance in which Bush publicly discussed the details of a program that was secret and classified at the time Bush described those details. Thus, you’re comparing apples to oranges. Discussing the provisions of a publicly available statute does not in any way compare to discussing the provisions of a top secret program.

Mark Field, here’s the full quote from the Gonzales press conference that you cite: “QUESTION: If FISA didn't work, why didn't you seek a new statute that allowed something like this legally? ATTORNEY GENERAL GONZALES: That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.” It’s not clear to me whether Gonzales meant the changes would not be approved by Congress, or instead that the changes would not be approved by Congress without jeopardizing the secrecy of the program. Even if Gonzales meant that Congress wouldn’t approve the changes, then it’s still unclear if he was referring to the view of Congress in September of 2001, or in December of 2005, or at some point between.

By the way, I entirely agree with you that, "If it's necessary to violate the 4A in order to spy, then it can't be done." You’ll get no argument from me about that.

Mark you say that it’s not your understanding that this surveillance program is directed at Al Qaeda. You add that
I am "the only person ... [to]suggest that the domestic spying program is so limited. If that were the Administration's position, it has never said so publicly." You are being silly. In fact, the administration has said over and over again that this program is directed only at Al Qaeda. Just in that one press conference in December of 2005, we have these statements:

"The President has not authorized -- has not authorized blanket surveillance of communications here in the United States. He's been very clear about the kind of surveillance that we're going to engage in. And that surveillance is tied with our conflict with al Qaeda." --- Gonzales

"Again, I make the point, what we are talking about here are communications we have every reason to believe are al Qaeda communications, one end of which is in the United States." --- Hayden

"Very, very important to understand that one party to the communication has to be outside the United States. Another very important point to remember is that we have to have a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." --- Gonzales

"What we're trying to do is learn of communications, back and forth, from within the United States to overseas with members of al Qaeda. And that's what this program is about." --- Gonzales

"And, again, the authorization by the President is only to engage in surveillance of communications where one party is outside the United States, and where we have a reasonable basis to conclude that one of the parties of the communication is either a member of al Qaeda or affiliated with al Qaeda." --- Gonzales

"Again, this is not a situation where -- of domestic spying. To the extent that there is a moderate and heavy communication involving an American citizen, it would be a communication where the other end of the call is outside the United States and where we believe that either the American citizen or the person outside the United States is somehow affiliated with al Qaeda." --- Gonzales

That's just from a single press conference! The 2001 AUMF does not authorize general authority to combat people unrelated to Al Qaeda, and the administration has repeatedly said that the program in question does not involve general surveillance unrelated to Al Qaeda. I would think that if anything is crystal clear in this matter, it is that the program targets Al Qaeda.
 

the administration has repeatedly said that the program in question does not involve general surveillance unrelated to Al Qaeda. I would think that if anything is crystal clear in this matter, it is that the program targets Al Qaeda.

In his radio address of December 17, 2005, President Bush said that, "...I authorized the National Security Agency ... to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations."

In the press conference on December 19, Gonzales said warrantless surveillance was employed "where there was a reasonable basis to conclude [!] that one party is a member of Al Qaeda, affiliated with Al Qaeda, or a member of an organization affiliated with Al Qaeda."

The DOJ's whitepaper of January 2006 acknowledges that "the NSA intercept[ed] international communications into and out of the United States of persons linked to Al Qaeda or related terrorist organizations."

My emphasis in all cases.

While the Administration has subsequently used weasel words in an effort to suggest that ONLY Al Qaeda has been targeted, its original statements make it clear that this is not true. Exactly how far beyond Al Qaeda itself the program extends, we don't know. What we do know is that it is NOT limited to Al Qaeda.
 

It looks like all those AG actions noted by Andrew could have been handled under FISA. That is, there is nothing in FISA that would have prevented any of those actions.

The administration could and can perform this surveilance legally and constitutionally (under FISA and conforming to the 4th Amendment), but it chose not to.

And the "necessary and appropriate" clause should be read as "those actions required" (necessary), that are constitutional/legal (appropriate).

There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations. - James Madison, speech to the Virginia Ratifying Convention, June 16, 1788

Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings — give us that precious jewel, and you may take every things else! Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. - Patrick Henry, speech in the Virginia Convention, June 5, 1788

If we suffer tamely a lawless attack upon our liberty, we encourage it, and involve others in our doom. - Samuel Adams
 

Al Qaeda, and people affiliated with Al Qaeda, and related groups that work with Al Qaeda, are a significant threat to liberty. It is not reasonable to demand probable cause before tapping their phone calls into the United States, in order to stop them from realizing that threat. A reasonable suspicion should be enough.

Nor is it reasonable to demand that arguments for a warrant be marshalled, and to demand that paperwork loop around to the Attorney General and the FISA court, every time that a suspected Al Qaeda operative is calling into the United States --- even if all the paperwork and arguments can be assembled after-the-fact.

People should not allow their partisanship and paranoia blind them to the fact that dedicated public servants are involved in this surveillance program. The program is meant to PROTECT the lives and liberty of innocent people.
 

Andrew, you're now making an entirely different argument.

I don't necessarily disagree with your points. They are points which the Administration could and should have properly raised before Congress. Instead, it simply violated existing law and Constitutional procedure. That's utterly unacceptable.
 

Most of the scenery has been thoroughly masticated in these comments. I just have a few points I feel compelled to add.

1) Secret surveillance programs on Americans by the executive branch without the benefit of oversight by the judicial branch in the form of warrants, even post facto, are always and invariably abused for political ends. It is the nature of unaccountable power to be abused.

2) What is almost certainly the most intrusive aspect of the NSA program, the data mining operation that is certainly going on, is not touched by this ruling. This operation continues unabated, unaccountable and undisclosed. The informational theory logic which compels the existence of such a program is inescapable, though I will not reproduce it here. At most, this decision stuck a finger in the dyke that is our eroding Constitution, as the floodwaters overtop the edifice.

3) At base the Administration's argument rests only and solely upon the premise that he has powers that the Constitution does not grant, and which no legislation can authorize, being unconstitutional. The President must not be allowed to lay claim to a right to violate Americans' Constitutional rights based on the phrase "Commander in Chief". That becomes the exception that swallows the rule of law. All else is simply sophistry, pettifoggery, and red herring stew.
 

Mark, no one in this thread has bothered to answer this simple question: why did Congress write into the 2001 AUMF that the War Powers Resolution was not being supereceded in any way? Shouldn't Congress have been just as concerned about FISA, if indeed Congress did not want any aspect of FISA to be overridden?
 

Mark, no one in this thread has bothered to answer this simple question: why did Congress write into the 2001 AUMF that the War Powers Resolution was not being supereceded in any way?

Because under existing law there's no reason for Congress to have done so. Courts almost always reject the argument that Congress implicitly overruled a prior statute. In J.E.M. Ag. Supply Inc. v. Pioneer Hybrid Int'l Inc., 534 U.S. 124, 137 (2001), the Supreme Court rejected such claims absent "overwhelming evidence" of Congressional intent to do so. It went on to say that the only justification for implicit repeal is when the two statutes are "irreconcilable".

The AUMF and FISA certainly are not "irreconcilable". There is no evidence that Congress intended to repeal FISA in this case, but there is a good deal of evidence it did not intend to do so. In addition to the quotes I provided earlier from Senator Daschle, consider that,

1. FISA has always provided for its own suspension in case of war (a more formal statement than the AUMF). That suspension, however, is limited to 15 days. This provision is pretty strong evidence that Congress did not intend the AUMF to supercede FISA.

2. The Patriot Act actually did amend FISA in certain respects. In one of the drafts, the Administration proposed an extension of the 15 day period in cases where Congress authorized the use of military force. If the Administration thought that Congress had already superceded FISA in the AUMF, it would hardly have drafted such language.

3. FISA is not the only statute involved. There is also the domestic wiretap law, which expressly states that it and FISA are the "exclusive means" for conducting electronic surveillance. 18 U.S.C. Section 2511. The AUMF would have to supercede this statute as well, despite the lack of any evidence of Congressional intent to do so.

4. Finally, consider that the AUMF might be argued to implicitly repeal many statutes. The Supreme Court rejected just such an argument in Hamdan. The argument that the AUMF implicitly repealed "many" statutes puts more weight on that resolution than it will bear.
 

So, are you saying that the clause in the 2001 AUMF regarding the War Powers Resolution is superfluous?
 

Andrew, are you saying the 4th amendment is superfluous?

Congress cannot write a law that violates the Constitution.

{ANDREW: Al Qaeda, and people affiliated with Al Qaeda, and related groups that work with Al Qaeda, are a significant threat to liberty. It is not reasonable to demand probable cause before tapping their phone calls into the United States, in order to stop them from realizing that threat. A reasonable suspicion should be enough.}

B.S. You are flat wrong unless you think this is superfluous:

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

"Not reasonable to demand probable cause?" Not only is it infinitely "reasonable," it is constitutionally required - period. What Andrew is claiming runs 180 degrees counter to the 4th Amendment. All FISA requires is that these warrants (some made after the fact - a stretch of the 4th as it is) be reviewed by a judge as per the 4th Amendment. That's basically it. This allows plenty of flexibility for law enforcement to get its job done.

I've see and spoken with others like this before and they inevitably have either: never read the Constitution and thus have no understanding of it; or they have no respect for it. They harbor greater fear for their own hide that for protecting the Constitution.

And "significant threat?" More significant than the British burning the Capital? More significant than the armies of Hitler, Mussolini, and Tojo? More significant than the Soviet Union with thousands of nuclear missiles pointed at the US? Complete and utter crap! Home of the brave? These chicken-spits bring nothing but shame and dishonor to our country. If Patrick Henry were to come back to life today he'd throw up in their faces Exorcist-style.

Pathetic.

Such anti-Constitutionalists are who our forefathers warned us about.

The liberties of our country, the freedom of our civil Constitution, are worth defending at all hazards; and it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors: they purchased them for us with toil and danger and expense of treasure and blood, and transmitted them to us with care and diligence. It will bring an everlasting mark of infamy on the present generation, enlightened as it is, if we should suffer them to be wrested from us by violence without a struggle, or to be cheated out of them by the artifices of false and designing men. - Samuel Adams
 

http://caselaw.lp.findlaw.com/data/constitution/amendment04/03.html#1
 

"Dilireus, the Glenn Greenwald blog post to which you refer cites multiple instances in which President Bush publicly discussed the provisions of the Patriot Act. If that makes Bush guilty of helping terrorists, then Congress is also guilty, because Congress put those details about law enforcement techniques into the Patriot Act. In contrast to those remarks Bush made about the Patriot Act, Greenwald does not cite any instance in which Bush publicly discussed the details of a program that was secret and classified at the time Bush described those details. Thus, you’re comparing apples to oranges. Discussing the provisions of a publicly available statute does not in any way compare to discussing the provisions of a top secret program.
"


Apples to oranges, Andrew? Malarkey. Nobody has discussed or provided details about this secret program. Nobody outside the Bush administration, the NSA, and a select group of congressmen knows anything about this program. Exposing that it is secret is not a detail. You're trying to change your argument on the fly. Exposing that this particular program exists in no way tells Al Qaeda anything our Saviour hasn't already said repeatedly in public.

This program was secret for exactly the same reason the secret torture program was secret: because it is illegal. The fact that Al Qaeda is a threat to our liberty is irrelevant. We have faced threats to our liberty infinitely greater than a rag-tag group of misfits living in caves in Afghanistan without shredding the constitution. Of course there are programs that should be kept secret. But in America, those programs must conform to the letter of the law. We are not some banana republic.

You really don't seem understand the goal of terrorism, so let me lay it out for you. Despite all of their bravado, terrorists are not out to destroy us. They aren't capable of destroying this country. The goal of terrorism is to terrorize people to the point that they destroy themselves. There is absolutely no way that any loosely organized external group can possibly overthrow any country. Name a single instance in the history of the modern world that this has happened. Coups are carried out by citizens of the country they overthrow and the only reason they happen in that there are internal relationships between those seeking to overthrow the government and the military.

All Al Qaeda has done is knock down a couple of buildings. This is totally insignificant to the country as a whole beyond the scare factor. This took them years to plan and it was the best they could do. We did orders of magnitude more damage in single bombing raids during WW2. Do you seriously believe that tens or hundreds of thousands of Muslim extremists can organize via the Internet and cell phones enough to invade and overthrow the US government when all of the might of the Japanese, German, and Soviet armies could not?

I believe you've mentioned that this program is only used to spy on Al Qaeda. Let's examine that for a moment, shall we? Assuming that the NSA has figured out how to only tap the phones of Al Qaeda sympathizers in this country, why in the hell are we just listening to them and not arresting them? You know damn good and well that if that were happening, Bush would be bragging it up daily. He can't help himself. How many terror arrests have we seen in this country? Jose Padilla? The Brooklyn Bridge blow torchers? Puh-lease.

Try to use some basic logic, for Christ sake. You and all of the other bedwetting Bush supporters out there are so scared that you aren't capable of rational thought. Bush and Al Qaeda have a symbiotic relationships: neither could survive without the other. Bush's approval rating was in the toilet on September 10, 2001. On September 12, 2001 it was at 90%. What exactly did he do in those two days except fail to prevent the most devastating attack against this country in modern history despite being specifically warned about it?
 

OK, I'll be bowing out of this conversation now. Evidently, there are no moderators. Trolls an insults seem to be the rule here. It's kind of difficult to have an intelligent discussion when the responses are that I'm a pathetic bed-wetter. Cheers to any reasonable people who happen across this comment.
 

Andrew, I'm not sure if you're still here, but for the sake of completeness I'll respond to your last question to me.

So, are you saying that the clause in the 2001 AUMF regarding the War Powers Resolution is superfluous?

It probably wasn't essential from a strictly legal standpoint. The relevant clause of the War Powers Resolution reads as follows:

"The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

The AUMF probably was not inconsistent with the WPR. However, this happens to be a subject on which Congress is very sensitive about its Constitutional powers, and rightly so in light of past experience. It's more a case of gilding the lily and reinforcing Congressional claims to authority than about statutory construction.

The rule of statutory construction I quoted is a good one. Congress can't be expected to anticipate all the potential claims of implicit overruling. Lawyers are too inventive when it comes to seeing "inconsistencies". As we've seen just with the AUMF, arguments have been made that it overruled not just FISA, but also Title III of the Omnibus Crime Control Act and certain passages in the UCMJ. I'm sure many others could be suggested as well -- the annotated codes on my shelf take up 45 lineal feet. The courts are right to limit such claims and establish a general rule against them. The specific mention of the WPR occurred only because Congress is especially sensitive about such an important Constitutional issue.
 

Mark, I disagree with you that the War Powers Clause in the AUMF has no legal significance. I could quote to you a hundred cases that stand for the principle that statutes should not be read in a way that renders any part legally superfluous. In any event, the Supreme Court has already indicated that "military necessity" will justify reading the AUMF as superceding FISA in particular situations. That seems like a somewhat different standard from "irreconcilability."

I do agree with you that the standard for implied repeals should generally be irreconcilability, but I'm sure you would agree that Congress has power to alter that standard whenever it pleases.

Incidentally, there's irony in the fact that some are now clamoring for an irreconcilability standard in this NSA case. Alexander Hamilton wrote that the same standard should be used for determining whether a later statute supercedes an earlier statute as is used to determine whether the Constitution supercedes a statute; Hamilton wrote in Federalist 78 that the standard should be "irreconcilable variance." The Court has long since abandoned that standard for determining constitutionality. I hope they don't abandon that standard for determining whether a later statute supercedes an earlier statute, UNLESS the later statute indicates that Congress intended a different standard.

Regarding the doctine of implied repeal, and the rule that the latest statute should govern, and the rule that the more specific statute should govern, you might be interested in the dissent by Justice Stevens in RADZANOWER v. TOUCHE ROSS & CO., 426 U.S. 148 (1976).

"[W]ith equal logic we might describe either statute as creating an exception from the somewhat more general provisions of the other. The rule that the legislature presumably intended to give effect to the more specific statute could therefore be applied to support the petitioner, as well as the respondent bank, in this case. Similarly, without pausing to consider the reason why each statute was enacted, we might simply apply the rule that the more recent of two conflicting statutes shall prevail, rather than the rule that the special statute takes precedence over the general....Preoccupation with the ancient doctrine of implied repeal should not foreclose this simple construction of the plain language of the 1934 Act. The rule that repeals by implication are not favored, like all other canons of statutory construction, is merely one of the guidelines to observe in the search for a construction which will best reflect the real intent of the legislature…. Specifically, in this case…. the canon of construction strikes me as an unreliable guide for ascertaining the true intent of Congress….It may therefore be accurate to describe the omission of any reference to the earlier statute in the legislative history of the later one as inadvertent."
 

I disagree with you that the War Powers Clause in the AUMF has no legal significance. I could quote to you a hundred cases that stand for the principle that statutes should not be read in a way that renders any part legally superfluous.

When I said that the clause was not, strictly speaking, necessary, I didn't mean that it was therefore "superfluous". Those aren't quite equivalent. The clause still has meaning because it reinforces the authority claimed in the WPR.

In any case, it would be wrong to draw the inference that because Congress took care to state that one particular statute was NOT superceded, other statutes by implication WERE. That doesn't follow at all.

I'm sure you would agree that Congress has power to alter that standard whenever it pleases.

Absolutely. Note the irony here, however: Congress can change the rule regarding implicit repeal only if it does so explicitly.

Regarding the doctine of implied repeal, and the rule that the latest statute should govern, and the rule that the more specific statute should govern, you might be interested in the dissent by Justice Stevens in RADZANOWER v. TOUCHE ROSS & CO., 426 U.S. 148 (1976).

I hadn't seen that particular quote before. Thanks for bringing it to my attention. The rules of statutory construction are often contradictory -- at common law criminal statutes were to be strictly construed, remedial statutes liberally construed; what if a statute fell into both categories?

Putting aside these theoretical concerns, the AUMF argument doesn't seem to have persuaded many commentators or courts. It certainly doesn't persuade me.
 

Professor Tribe mentioned above that the AUMF argument has persuaded people like Professor Sunstein on the liberal side, and I'm not aware of many conservative professors who have derided it.

As the Court said repeatedly in Hamdan, Congress should have been "just as concerned" about FISA as the War Powers Resolution. Even putting aside the War Powers issue (which has not been mentioned by DOJ as far as I know), declarations of war have traditionally been broadly phrased, without going into minute detail about every statute that might be modified or affected.

The First and Fourth Amendment arguments are very weak here. Hardly anyone beyond Judge Taylor believes that Congress is powerless to authorize a sureveillance program such as this one. That means the primary remaining constitutional issue is whether Congress could intrude on presidential power by denying him the ability to surveille the enemy during wartime. That constitutional issue can be conveniently avoided by construing the 2001 AUMF in the way I've described, and avoidance of constitutional issues is a longstanding rule of statutory construction.
 

As the Court said repeatedly in Hamdan, Congress should have been "just as concerned" about FISA as the War Powers Resolution.

I don't understand how reference to Hamdan strengthens your point. The Court there rejected the Administration claim that the AUMF gave it authority to set up non-statutory tribunals. That favors my side, not yours.

The First and Fourth Amendment arguments are very weak here.

I wouldn't characterize them as "very weak", but I agree that the statutory argument is stronger.

That means the primary remaining constitutional issue is whether Congress could intrude on presidential power by denying him the ability to surveille the enemy during wartime.

I don't consider this a serious issue. If the Administration is so confident of prevailing on this issue, I'm puzzled why it so frantically avoids any judicial ruling on it.

That aside, the case clearly falls into Youngstown category 3. That means there is no unrestricted Presidential power and thus no need to invoke any doctrine of "avoidance".
 

The Youngstown category of this NSA case depends upon whether you interpret the FISA and AUMF as banning the surveillance program. Even if you assume that the President's power here is at its "lowest ebb," that doesn't mean it's nil. Congress can't forbid the President from intercepting battlefield communications during a declared war. Such interception is a fundamental incident of war, and tapping transnational communications from suspected Al Qaeda terrorists to cohorts in the U.S. seems very much analogous to that. So it's not a cut and dreid constitutional issue. That issue can be avoided be interpreting the AUMF as impliedly granting some surveillance authority.

As to the Hamdan decision, some parts support what I've said, and some parts support what you've said. The Court in Hamdan said that the AUMF didn't supercede the UCMJ, because the President hadn't shown a "military necessity." The case of military necessity is stronger regarding the surveillance program.

Hamdan also involved the Court's interpretation of the detainee Treatment Act (DTA), and that's
where the "just as concerned" language is from. That was a separate matter from the discussion in Hamdan of the UCMJ and the Geneva Conventions.
 

I meant to add two points.

First, the Court isn't going to avoid a constitutional issue by making a bad statutory construction argument. It will avoid a constitutional issue only to make a good argument on other grounds. Since, as I've pointed out above, the AUMF argument has no merit, the Court won't avoid the Article II issue on that basis.

Second, in support of my comment about Youngstown, I meant to refer above to footnote 23 of Hamdan, which reads:

"Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may notdisregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise."
 

So the conversation is clear, I posted 80 before I saw 79.

The Youngstown category of this NSA case depends upon whether you interpret the FISA and AUMF as banning the surveillance program.

FISA indisputably does ban it. The Administration has admitted that.

Congress can't forbid the President from intercepting battlefield communications during a declared war.

I'm not at all sure this is correct. Congress has broad power to regulate the armed forces under Art. I, Sec. 8:

"To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces..."

And see Federalist 69, where Hamilton compares the President's CinC power to that of a general.

In any case, we're agreed that Congress has NOT placed any such restriction on the military. Certainly FISA does no such thing. Just as certainly, however, Congress had clear Constitutional authority to enact FISA, so the Youngstown framework applies.

The case of military necessity is stronger regarding the surveillance program.

I don't really know how to compare necessities like this, but if you forced me to make the comparison I wouldn't agree.

In any case, if the military necessity really is that important, nothing has stopped the Administration from seeking amendments to FISA to account for that. I see no reason whatsoever why a Congress controlled by his own party would refuse to make such an amendment upon any reasonable showing of necessity. That is how to avoid a constitutional issue.

Your arguments about the merits of the domestic spying program don't reach the real issue. The crisis we face has not been caused by any dispute over the merits, but by the Administration's arrogant refusal to abide by existing law and Constitutional procedures.
 

I don't disagree with footnote 23 from Hamdan.

As far as I know, the government has not conceded that FISA bans the surveillance program, although I tend to think it probably does. However, the Youngstown category of this NSA case depends upon whether we interpret the FISA IN COMBINATION with the AUMF as banning the surveillance program. Whether FISA alone bans it is not dispositive.

You say that you "see no reason whatsoever why a Congress controlled by his own party would refuse to make such an amendment upon any reasonable showing of necessity." Perhaps you've never heard of the following word: "filibuster."

If you're so sure of the Administration's "arrogant refusal to abide by existing law and Constitutional procedures," then I'm sure you'll have no problem condemning Cass Sunstein in the same terms.

I'm curious how far you would go, Mark. Suppose that FISA said the President may not engage in any retreats during a declared war. Would you say that Congress has such authority to intrude on executive power?

Regarding the AUMF, suppose that it not only explicitly protected the WPR from being superceded, but also explicitly protected the UCMJ too. How many statutes would the AUMF have to explicitly protect before you'd conclude that there's some significance in the fact that it didn't explicitly protect FISA?

Let's consider FISA and the AUMF as they are currently written. Suppose a CIA agent in Waziristan hears an unconfirmed rumor that Ayman Zawahiri will be telephoning Louis Farakhan at 10PM the same day, so an international tap is placed on Farakhan from 10PM until 11PM. No judge would ever say there was "probable cause," even though there was "reasonable suspicion" (these two standards are very different from each other). Do you really think that such a tap is not "necessary and appropriate" within the meaning of the 2001 AUMF? You may disagree with such an interpretation of the AUMF, but to call it meritless is quite a stretch.
 

"Let's consider FISA and the AUMF as they are currently written. Suppose a CIA agent in Waziristan hears an unconfirmed rumor that Ayman Zawahiri will be telephoning Louis Farakhan at 10PM the same day, so an international tap is placed on Farakhan from 10PM until 11PM. No judge would ever say there was "probable cause," even though there was "reasonable suspicion" (these two standards are very different from each other). "

That is incorrect. The probable cause standard, as per existing Sup Ct precedent and discussion, differs primarily from the reasonable standard only in that it is rendered by a neutral magistrate. It is not based on some wildly different analysis.

The FISA probable cause standard, operating in a national security setting and not a criminal investigation setting, is probable cause that the person will be in contact with a statutorily defined group of persons or entities (which include terrorists and Zawahiri). Again, as per the limited FISA case law, all the analogous Sup Ct case law, and the unanimous testimony of the retired FISA judges, there just isn't a great difference in "reasonable" and "probable cause" other than the check and balance of who is making the determination.

Now when you say "a rumor" I think you would have to be a bit more specific on how the rumor originated. For example, if the clerk at the Istanbul Dog and SUds said she read in the Ethiopian Enquirer that Madame Faye read the stars and forecast that the call would happen --- well, whatever.

But here's the worst thing that happens in your scenario. Under the 72 hour provision they listen in anyway. If they are wrong, they make the report of the outcome and maybe get slapped a bit (that was a stupid approach) but they are statutorily exempt from recourse as long as they make that report and belated request.

If they were not wrong, they can present what they have found (it wasn't in violation - it was within the limits of FISA) and they get their warrant.

If they were wrong, get a little slapped, go back and on a continuing and abusive basis use the Ethiopian Enquirer's articles on Madame Faye's examination of the stars to initiate warrantless taps under the 72 hour provision, always to no avail, eventually the judicial smack may get a little more foreceful

****************

"Do you really think that such a tap is not "necessary and appropriate" within the meaning of the 2001 AUMF?"

I think it has nothing whatsoever to do with the AUMF, which did not address revisions to national security wiretap laws that are quite broad as it is; and I think that Judge Taylor's citation to Keith and Milligan are pretty much on point in that regard. Even an actual declared war on our own soil and in a state that was operating under martial law, was not a grounds, per the Sup Ct, for suspension of the 4th, 5th and 6th amendments.

It doesn't take any stretch at all to shoot down the AUMF claim as completely baseless, pre and post Hamdi (which dealt only with Habeas btw, the only right that Mulligan did agree could be temporarily suspended) and pre and post Hamdan.

Where is the merit? I think if you can find merit in the AUMF claim, they need to turn you loose looking for Hoffa.
 

Mary, the courts have NOT said that "probable cause" and "reasonable suspicion" are anything remotely like each other.

The courts have said that probable cause exists when "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U. S. 213, 238 (1983).

The courts may be prone to twist words, but so far as I know they have not gone so far as to take the word "probable" and decide that it means LESS than a 50% possibility.

If you want to quantify things, let's suppose the CIA agent has between a 5% and 10% belief that Zawahiri will be calling Farakhan. No way does that qualify as "probable cause." This is one reason why, generally speaking, the greater number of searches, as well as the vast number of arrests, take place without warrants in the United States.

You say that "Even an actual declared war on our own soil and in a state that was operating under martial law, was not a grounds, per the Sup Ct, for suspension of the 4th, 5th and 6th amendments." But I'm only saying that an old statute was partially superceded by a new one. I am NOT saying that any statute to supercedes the 4th, 5th and 6th amendments. The Fourth Amendment only says that IF there's a warrant then there must be probable cause; it does NOT say that there must be a warrant for every search and seizure. The Fourth Amendment only imposes a warrant requirement when it is REASONABLE to do so.
 

GW Law Professor Orin Kerr on probbale cause: "In my experience, probable cause exists when the police have some pretty strong signals that there is really something unusual going on in the place to be searched." That's a pretty high hurdle, in the context of wartime surveillance.
 

As far as I know, the government has not conceded that FISA bans the surveillance program

Gonzales did in the December 19, 2005 press conference:

"Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance ...."

However, the Youngstown category of this NSA case depends upon whether we interpret the FISA IN COMBINATION with the AUMF as banning the surveillance program. Whether FISA alone bans it is not dispositive.

I agree that that's the issue you've raised. I disagree on the merits, as set forth at length above.

You say that you "see no reason whatsoever why a Congress controlled by his own party would refuse to make such an amendment upon any reasonable showing of necessity." Perhaps you've never heard of the following word: "filibuster."

This is really a stretch. If you are seriously suggesting that the President has no Constitutional obligation to obey a law because he thinks it possible -- possible! -- that Senators might filibuster an amendment which the President has described as a matter of military necessity, then I'll simply say I think that's absurd. Nor do I think it at all likely that anyone, much less 41 Senators, would filibuster in such circumstances.

I'm curious how far you would go, Mark. Suppose that FISA said the President may not engage in any retreats during a declared war. Would you say that Congress has such authority to intrude on executive power?

I don't think much is gained by speculation on issues like this. It's like Rick said when asked if he could imagine the Germans in London: "When you get there, ask me."

Regarding the AUMF, suppose that it not only explicitly protected the WPR from being superceded, but also explicitly protected the UCMJ too. How many statutes would the AUMF have to explicitly protect before you'd conclude that there's some significance in the fact that it didn't explicitly protect FISA?

The simple answer of the courts is this: when the intent of Congress appears clear.

I'll let you and Mary discuss the intercept issue.
 

Mark, you've taken Gonzales out of context, (as usual):

"Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, UNLESS there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."

In other words, DOJ's argument is that FISA has been satisfied. Section 109 of FISA says that a FISA warrant is not required for the electronic surveillance if another statute authorizes such surveillance. According to DOJ, that other statute is the AUMF. So Gonzales and DOJ are saying that FISA hasn't been violated even if one assumes that the AUMF didn't modify FISA in any way. (In the alternative, DOJ argues for implied repeal.) I've always thought that implied repeal is the stronger argument, especially in view of the otherwise superfluous nature of the AUMF clause that mentions the War Powers Resolution. You say that Congress was merely trying to underscore or reiterate its support of the War Powers Resolution. However, any competent lawmaker knows that it's ridiculous to pass a law merely to say that the courts and the president had better darned well obey some previous law that they should be obeying anyway.
 

The main DOJ arguments are here:

http://www.globalsecurity.org/intell/library/reports/2006/nsa-authorities_doj060119.htm
 

Mark, you've taken Gonzales out of context, (as usual)

No I didn't, and I don't know what you mean by "as usual". The specific comment I made was that the domestic spying program violated FISA per se. Gonzales admitted that it does. He went on to say that FISA+AUMF permits the spying, but that's the same ground we previously covered.

I think we've previously covered the rest of your last post.
 

any competent lawmaker knows that it's ridiculous to pass a law merely to say that the courts and the president had better darned well obey some previous law that they should be obeying anyway.

Congress put the same clause into the resolution authorizing troops in Lebanon, the AUMF for the first Iraq War, and the AUMF for the second Iraq War. To my knowledge, nobody has ever suggested that any of these clauses overruled FISA.
 

I don't know whether previous presidents undertook electronic surveillance outside the FISA regime, in the context of military actions in Lebanon or Iraq. Certainly the NY Times did not publicize any such surveillance as they did in this case.

I'm not the only one pointing to the clause of the AUMF that mentions the War Powers Resolution. For example, see Robert Alt's analysis, here:

http://www.ashbrook.org/publicat/dialogue/alt_judiciary.html

Professor Alt also quotes the 911 Commission:

"Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act, or FISA, the application process nonetheless continues to be long and slow. Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance."
 

Andrew: In other words, DOJ's argument is that FISA has been satisfied. Section 109 of FISA says that a FISA warrant is not required for the electronic surveillance if another statute authorizes such surveillance. According to DOJ, that other statute is the AUMF. So Gonzales and DOJ are saying that FISA hasn't been violated even if one assumes that the AUMF didn't modify FISA in any way. (In the alternative, DOJ argues for implied repeal.)

The argument about Section 109 (codified as 50 USC 1809) doesn't cut it. Because that section is only about criminal sanctions under FISA. Even if that section did not exist, the core provision of FISA (codified within Title III, 18 USC 2511) is that FISA's procedures "shall be the exclusive means" for conducting foreign-intelligence surveillance.

So to win the point that the AUMF trumps FISA, the administration must argue and win it as an implied repeal.

I do note that the particular theory of statutory construction you advance -- based upon how you interpret the War Powers Resolution section -- is not precisely the same theory that DOJ advances. It did not include your theory in its "white paper," and it certainly did not include any such thing in the barebones way it briefed the AUMF issue in ACLU v NSA.

Now, if the administration does make a fuller case on appeal, it could yet incorporate your "War Powers Resolution" theory, which is at least intellectually interesting.

You and I went around and around on your theory some months ago in other quarters, and essentially agreed to disagree over whether there was an implied repeal. At this point, I care much less about you or I convincing the other than I care about the courts actually deciding the matter.

Which brings me back to the question of judicial review. I'm sorry that you did not get back to my follow-up question to you above, relating to whether the President has an affirmative duty actually to facilitate judicial review.

Before this thread was hijacked, it started off to be about Judge Taylor's decision in ACLU v NSA. The administration has been fighting hammer-and-tong in that case to avoid review of the AUMF and Article II merits, relying on its discretionary state-secrets privilege to try killing the case. If the case falls on that basis, or on the more fundamental but still procedural question of standing, in no way will this vindicate the President's theory that he has acted lawfully.

Will you now join in urging the President to instruct his lawyers affirmatively to seek judicial review of those merits in some test case, the sooner the better?
 

JaO, if the Sixth Circuit thinks the plaintiffs have standing and the state secrets privilege doesn't apply, then they'll address the merits. I'm not going to urge the administration to drop the standing and state secrets arguments, at least not until I know that the administration will present the argument that Professor Alt and I have been making (Judge Taylor didn't mention it). Not that the administration listens to me anyway.

P.S. You don't think I hijacked this thread, do you?
 

Thanks, Andrew.

Your original comment included two principal points:

1) You think the AUMF authorizes the warrantless surveillance outlawed by FISA.

2) You think Congress and the president should get together to authorize it under some new statute.

On 1) you seem to lack conviction to have the President test the AUMF theory -- whether his own or your variant -- in a real court so that it can be adjudicated expeditiously.

On 2) you say you have no informed opinion on what the new statute should say.

With respect, if that as far as you are willing to go, I find both of those points quite unserious.
 

JaO, if testing some legal theory in court would jeopardize state secrets, or violate the "cases or controversies" provision of the Constitution, then those are not trivial concerns. The legal theory could be tested instead in Congress, which is free to overturn what the President has done (perhaps over a veto). If the courts can resolve the issue fairly without violating state secrets, and without ignoring the standing requirement, then I have no problem at all with that, as long as the court squarely addresses the War Powers Clause in the AUMF. This seems like a perfectly serious position.

Even if Congress wants to ratify rather than overturn what the President has done, perhaps a statute would be useful to accomplish that. But since so many details of the program are secret, it's hard for me to know what such a statute should say, exactly. Perhaps it could specifically allow warrantless transnational wiretaps if there is reasonable suspicion that Al Qaeda or an affiliated person is calling the United States, provided that all such wiretaps shall be fully disclosed to the chairs of the Senate and House Intelligence Committees.
 

I think we've reached the stage of disagreement. I'm just going to summarize my points regarding the AUMF.

On September 10, 2001, the government had authority to conduct electronic surveillance of Al Qaeda overseas without any restriction whatsoever. It could conduct that surveillance in the US subject to FISA. The argument now being made is that the AUMF implicitly overruled FISA to permit the domestic spying program. I reject this argument for several reasons.

The AUMF authorizes force against those who committed, aided, etc. the attacks of September 11. The Administration attributes those attacks to Al Qaeda, and we all accept that attribution. However, the domestic spying program goes beyond Al Qaeda itself to include "affiliates" and those "linked" to Al Qaeda or "related" terrorist organizations. Unless those "affiliates", etc. were somehow involved in 9/11, as opposed to, say, affiliating with Al Qaeda after the fact, the AUMF on its own terms could not authorize any action against them. Because the government refuses to seek warrants, we have no way to determine if this essential predicate has been met.

The Supreme Court has held that statutes will not be treated as implicitly overruled unless the later statute is "irreconcilable" and evidence of the intent of Congress to overrule is "overwhelming". The AUMF does not meet this test. Among other problems, FISA itself already includes a provision for what to do in time of war. That's powerful evidence that Congress already provided for this circumstance and didn't need the AUMF to do so.

Andrew's argument is that we should infer such intent in Congress because of the clause in the AUMF stating that the War Powers Resolution has not been "superseded" by the AUMF. He gives two separate reasons for making such an inference.

One is based on the rule of statutory construction that courts must give effect to all parts of a statute; they may not treat portions as superfluous.

There is no reason to believe that the clause is superfluous. Congress has included the same clause in EVERY authorization it has given for the use of military force since FISA was passed in 1978. No one has ever before suggested that any of these prior authorizations overruled FISA.

This behavior by Congress is consistent with its actual reason for including the WPR clause: to make absolutely certain that it preserves its claim to the power asserted in the WPR (a power which all Presidents have contested since the WPR was enacted). Because the clause has this purpose, it can't be considered superfluous.

Andrew also seems to be using some form of the rule of construction known as "inclusio unius".* I infer this from his repeated question why the WPR was mentioned but not FISA (or, for that matter, any other statute).

The basic conditions for this rule don't exist -- Congress was not making any list. The clause has a different purpose, as I showed above. More importantly, the argument proves far too much. By Andrew's logic, Congress excluded EVERY other statute; the President could claim the right to violate the Endangered Species Act or federal contracting rules if he said that was necessary. The Supreme Court in Hamdan already rejected the claim that the AUMF overruled other statutes.

Finally, Andrew's arguments ignore the evidence that both Congress and the Administration acted inconsistent with his interpretation of the AUMF. That evidence includes the rejection of proposed amendments to the AUMF to include domestic actions. It also includes the amendments to FISA contained in the Patriot Act and Gonzales's admission that the Administration didn't ask for changes to FISA to permit the surveillance because they were told "that was not something we could get".

For the non-lawyers, that is part of a Latin phrase "inclusio unius est exclusio alterius": the inclusion of one is the exclusion of others. Courts apply this rule usually in cases where Congress makes a list. If a statute says that it covers A, B, and C, but says nothing about D and E, even though they would ordinarily be included in the group, then courts will assume that Congress deliberately omitted D and E.
 

Andrew,

I do not propose violation of the case-or-controvery requirement. The state-secrets privilege is just that, and it can be waived by the President with no serious prospect of a leak from in camera review.

In fact, as I have pointed out before, the government has long had the standing to initiate a test case in the ultra-secret FISA courts, where it enjoys a huge home-court advantage. Yet DOJ has shrunk from doing so.

In the District Courts, if the President wanted a forthright test case it would be infinitely easier to get one if he directed his lawyers to do so, perfectly consistent with Article III. Test cases, with real facts and real controversies, can be found easily if the government cooperates rather than hides. Civil plaintiffs, or even criminal defendants, can be found. Facts can be stipulated. Privileges can be waived.

If you deny that the President and DOJ have much legitimate discretion that could be applied toward the end of reaching the legal merits in some test case, then I think you are so blinded by partisan advocacy that your position just becomes silly.

My more fundamental point to you is this: The President is not just any party to lawsuits. He has a constitutional duty to "see that the laws be faithfully executed," which is a very different standard than just going to court if someone drags him there kicking and screaming, or continuing to do whatever he can get away with. I believe that constitutional duty creates an affirmative obligation on his part to take all steps feasible to test the merits of his very controversial legal theories, and such test is long overdue. After all, if those theories are wrong, he and his subordinates are committing ongoing felonies.
 

There should have been an asterisk before the last paragraph in my last post to indicate a footnote.
 

JaO, I do not deny that the President has legitimate discretion that could be applied toward the end of reaching the legal merits in some test case. But even so, can't decisions of the FISA Court be appealed to the Supreme Court? Has the Supreme Court ever rendered a secret opinion?

Mark, you raise a good point about exclusio unius: it does usually involve a "list". I have not mentioned exclusio unius in this thread. Instead, I have emphasized the superfluousness argument, which you ought to agree is stronger than the exclusio unius argument (re. the WPR clause in the AUMF). I may urge Professor Alt to pursue the former argument instead of the latter.

In regards to the FISA and the WPR, presidents have contested BOTH. For example, while FISA was being debated, Attorney General Griffin Bell testified that “the current bill recognizes no inherent power of the President to conduct electronic surveillance, and I want to interpolate here to say that this does not take away the power [of] the President under the Constitution.” When writing the AUMF, Congress should have been “just as concerned” about FISA as about the WPR, if Congress wanted the President to be fully bound by FISA. That last quote is from Hamdan.
 

Andrew: But even so, can't decisions of the FISA Court be appealed to the Supreme Court?

Decisons by the trial-level court, the Foreign Intelligence Surveillance Court, are appealable to the higher level Foreign Intelligence Surveillance Court of Review only when the decisions are adverse to the government. (That is part of what I meant by a home-court advantage.) The Court of Review can publish an opinion on the issues of law; it is is facts that are secret. See In Re: Sealed Case as a unique example. In that case the court invited the ACLU and similar parties to brief in opposition to the government. Decisions of the Court of Review are reviewable by the Supreme Court. That has not happened so far.
 

Andrew,

A clarification. It was probably a poor choice of words for me to call the FISC a "trial-level" court, since there are no trials. It is, however, the court that does the fact-finding and approves/diapproves FISA warrant applications, which is its only jurisdiction. This task is analagous to that of a District Court approving/disapproving Title III warrants.
 

Thanks for the clarification.
 

First of all most of the discussions foster an environment to forward think the resolution of an inherently difficult dichotomy: we all want continued surveillance - we all want constitutional protection. I believe we can have both! Legal doctrine stipulates specificity of statutes trumps generalizations. (FISA v AUMF). Patriot Acts I, II etc.. have tried to inject more specificity. (Obviously some part of our "3-pronged sysytem" is trying!) Hamden and now ACLU et al have tried to further the discourse into a more specific realm.(Part 2 of our "3-pronged system" is working) We all need the third part of our "3-prong system" to engage in a realistic "mature" manner so we may resolve our dichotomous dilemma!
 

You could just as easily say that AUMF is specific to Al Qaeda, wheras FISA applies more generally.
 

It's easy to judge people who are legal judges. They have to make choices and sometimes it's not the best decision. It's there call though. Can you imagine how stressful it most be when your a judge and you have self doubt about sentencing someone. How does a judge truly know if the sentence he gave fits the crime? What if the judge feel strongly that the person is innocent but the proof says otherwise. We need to have more compassion for judges.

-Zane of ontario honey
 

It's easy to judge people who are legal judges. They have to make choices and sometimes it's not the best decision. It's there call though. Can you imagine how stressful it most be when your a judge and you have self doubt about sentencing someone. How does a judge truly know if the sentence he gave fits the crime? What if the judge feel strongly that the person is innocent but the proof says otherwise. We need to have more compassion for judges.

-Zane of ontario honey
 

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