Balkinization  

Thursday, May 17, 2007

You Do Want to Know What John Yoo Thinks About All This, Right?

Marty Lederman

Well, fortunately for us we have this recent interview conducted by Frontline, in which John paints a fairly clear picture about the sorts of programs that he authorized (including data mining that was prohibited by Congress), and the legal justifications, based on Article II, that were the underpinnings of the authorization. It's consistent with the story he tells in his recent book. The authorization was likely to be remarkably indiscriminate, and it was based on a theory that the Commander in Chief can disregard any laws that he thinks get in the way of how best to defeat the enemy: "There's a law greater than FISA, which is the Constitution . . . ."

Begin reading with the question about one-third the way down -- "Can the government pull out the communications it wants, or does it have to have access to the entire flow?"

See other interviews here, including with James Baker of the DOJ Office of Intelligence Policy and Review, perhaps the DOJ official most knowledgeable about the inner workings of FISA.

This is all ancillary to the broadcast that Frontline ran this week, which you can view in its entirety here.

Comments:

From the interview:

Q: "Can the government pull out the communications it wants, or does it have to have access to the entire flow?"

Yoo: "I think the government needs to have at least access to the flow; even if it was going to enforce a warrant, it has to [have] access to the flow. … There's not like a single wire you could get a warrant for and tap. In order to get Internet messages, you have to be able to dip into the flow of communications, because Internet communications are broken up."


This is true, and is an issue with IP taps (both Voice-over-IP [VoiP], like Vonage and some of the new cable/DSL offerings, and also Internet data snoops like web surfing, etc.). The data streams are not as determinate in their routing (unlike voice calls, and won't necessarily pass through known nodes. You really have to tap lots of places at once to be sure to get it all.

But (and it's a big "but"): While you need "access" to the "tubes" to get the data you want, there's a difference between the snoopers grabbing all the data, and just grabbign the data for a specific target. Most CALEA-compliant equipment, based on the concept of a targeted intercept, will deliver to the law enforcement agencies (LEAs) only the data/content specific to the targets that are provisioned. And the provisioning is in the hands of the carrier's legal department; the LEA has to come in with a warrant and ask the carrier to put in the tap.

What happened in San Francisco is that the big "tubes" were "T"ed off to a separate room with NSA approved or provided equipment, seemingly under NSA control, not AT&T's control. So in this case, the NSA (or whoever it was) could snoop on anyone and everyone they wanted without having to hand over any paperwork.

Cheers,
 

there is a law greater than FISA, which is the Constitution . . .

Sounds right to me. Do you somehow think the FISA trumps the Constitution?
 

Charles, that is what is known as a false choice, or the either-or fallacy. What makes you think that FISA is unconstitutional?
 

Luke:

If the FISA is used to infringe on the Commander-in-Chiefs wartime power to SPY ON THE ENEMY, I would argue that is unconstitutional (and stupid).
 

Charles:

If the FISA is used to infringe on the Commander-in-Chiefs wartime power to SPY ON THE ENEMY, I would argue that is unconstitutional (and stupid).

So where in the Constitution does it say that the preznit has a plenary power to spy on U.S. persons without warrants? Appropriate quotes and cites would be appreciated.

Cheers,
 

Article II, Section 1: "The executive power shall be vested in a President of the United States of America . . ."

Section 2: "The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States . . ."
 

Charles,

You are ignoring the fact that Congress ALSO has extensive wartime powers, specifically delineated in Article I, and that in enacting FISA, Congress exercised those powers to prevent the President from spying on his domestic opponents (which, if you recall, is exactly what happened under Nixon).

You are also ignoring citizens' rights under the Fourth Amendment (which limits the powers previously enumerated in the Constitution) not to be subject to searches without warrants.

Given both of these points, I think any argument that FISA is unconstitutional because of some theory about an unfettered President bears the burden of proving that point. The Constitution does not make the President king, even in wartime, and particularly when acting domestically (which FISA covers). If the subject of conflicting grants of power to both President and Congress interests you, I would recommend looking up the Supreme Court's Youngstown decision (analysis here: http://balkin.blogspot.com/2006/07/note-to-senator-specter-youngstown.html).

Further, your reference to "spying on the enemy" assumes way too much. There has been absolutely zero evidence that any iteration of the various warrantless wiretapping programs only spied on the "enemy."
 

"Spying on the enemy" necessary includes spying on anyone the enemy is in contact with, no? Since we've both read Youngstown (and all the concurring opinions, I presume), you will agree that Congress has, up until now at least, acquiesced to the Presidential power has been exercised, right? In return, I will agree that the Constitution does not make the President king, even in wartime. For instance, Bush leaves office on January 20, 2009 (barring some unforeseen circumstance). Until then, the limit of the President's power probably stops at interning every Arab-American. "Spying" therefore is simply a lesser-included "offense."
 

charles,
do you know jake007? just curious.

thanks
 

Charles, you asked: "you will agree that Congress has, up until now at least, acquiesced to the Presidential power has been exercised, right?"

No, I would not. Given that FISA was enacted, Congress has already spoken and made specifically illegal what the President is attempting to claim by implied power. At that point, per Youngstown, the President's power is at its "lowest ebb." Further, Congress (and the FISA courts) still don't know exactly what the so-called "Terrorist Surveillance Program" actually surveilled, mostly because it was kept secret from both. Certain Intelligence Committee members were informed about the program's existence (and such selective disclosure is itself a violation of the law), but they were given no details that would allow them to evaluate its legality under FISA.

As for your statement about the limits of the President's power, I am not really understanding your choice of words. You wrote:

"Until then [Bush leaving office], the limit of the President's power probably stops at interning every Arab-American. "Spying" therefore is simply a lesser-included "offense."" I take it that you are saying either that Bush can do anything up to and including interning every Arab-American, or anything except for interning every Arab American.
Either argument fails immediately, given that an "Arab American" is, by definition, an American, and entitled to the protections of the Constitution, including the right of due process (which would certainly prevent the President from unilaterally exercising the power to engage in mass internments of citizens, and would also prevent numerous "lesser included" offenses, such as spying domestically on U.S. persons in violation of federal law, ie FISA).
 

justwatching:

No.

Luke:

We'll have to agree to disagree then. Thanks for letting me know that Korematsu had been overruled.
 

Charles, re: "Thanks for letting me know that Korematsu had been overruled." Three points:

1) The factual background of Korematsu was an actual, declared, war.

2) Unlike the debate over the President's repeated and wilful violations of FISA, there was no specific law prohibiting the detentions at issue in Korematsu. The two cases do not involve the same "Youngstown" factors.

3) Even if relevant, the precedential value of Korematsu is very much in doubt, as it is widely viewed as a disgrace and a mistake. You also have to look at what the Supreme Court has done since then: I do not think the Supreme Court would have any trouble overruling Korematsu if it were presented with the opportunity (see, e.g. Rasul, Hamdi, or Hamdan).
 

I've read your side of the argument already: http://www.luc.edu/law/activities/publications/lljdocs/faclawsymp/norton.pdf

But, are you seriously claiming that the ROBERTS Supreme Court would have no trouble overruling Korematsu if a similar fact pattern presented itself?
 

I can't wait to hear the Administration take an official position that Korematsu is good law.

Reminds me of Voltaire: "I have never made but one prayer to God, a very short one: “O Lord, make my enemies ridiculous.” And God granted it."
 

Robert asks: "But, are you seriously claiming that the ROBERTS Supreme Court would have no trouble overruling Korematsu if a similar fact pattern presented itself?"

Yes, yes I am.
 

Sorry Charles, obviously I meant you, not "Robert." Just had C.J. Roberts on the brain.
 

Well, Luke, I guess we'll just have to wait and see. I recall Leaky Leahy trying to pin him down on that very case. While Roberts suggested that he would have a hard time imagining a modern-day argument for the imprisonment of Americans solely on the basis of ethnicity, he did NOT directly respond to Leahy's line of inquiry. Food for thought.
 

Folks, Korematsu did not technically uphold the internment program. Rather, it upheld the petitioner's conviction for violating a curfew, which was punishable pursuant to an explicit law passed by Congress. Ex parte Endo, on the other hand, found the internment of an American citizen (not suspected of disloyalty) to be unsupported by statute or by the Constitution. The President does not have the authority to intern Arab Americans without proving that they are "enemy combatants." (Hamdi v. Rumsfeld).
 

Not exactly. Yasui v. United States and Hirabayashi v. United States related to the curfew law. (1943). In Ex parte Endo, the court accepted a petition for a writ of habeas corpus and ruled that the WRA had no authority to subject a citizen whose loyalty was acknowledged to its procedures. That's not my fact pattern above. Korematsu indeed upheld the constitutionality of the ARMY's Civilian Exclusion Order No. 34 and the PRESIDENT's Executive Order 9066. I haven't read it in a while, but I don't believe any Congressional action was even implicated.
 

Charles, See Act of March 27, 1942, P.L. 77-503, codified at 18 U.S.C. 1383 (1970 ed.), repealed by P.L. 94-412, Title V, § 501(e) (1976). The law made disobeying such military orders a punishable offense, and the Korematsu Court found that it 'ratified' E.O. 9066 insofar as it excluded persons from designated areas. But Endo read the same combination as insufficient to support internment.
 

I will definitely try to re-read Korematsu if Bush starts interning all Arab Americans again.
 

Charles:

"Article II, Section 1: "The executive power shall be vested in a President of the United States of America..."

"Section 2: "The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States...."


I'm missing something. Where does it say he has plenary power to wiretap U.S. persons without a warrant?

Cheers,
 

Charles:

"Spying on the enemy" necessary includes spying on anyone the enemy is in contact with, no?

True. Wiretaps, of practical necessity, include both directions of a conversation. The distinction is who's the "target". The FISA law does not cover intercepts where the "target" is a foreign al Qaeda operative, even if some of the calls are made to U.S. persons. This is similar to there being no need for a wirtap warrant for me if I happen to call a Mafiosi who has a warrant out on him. My conversations with that Mafiosi may be recorded by dint of the Title III warrant on his phone, and no Constitutional foul will be called.

So you can tap calls of al Qaeda, even if they're made to "U.S. persons", without warrant or FISA court order. That wasn't what Dubya was doing.

HTH.

Cheers,
 

Charles: ...Commander-in-Chiefs wartime power...

Someone recently said, "That dog won't hunt." It is only a matter of time before the nation realizes it has been duped into going along with the Rove/Cheney vision of Presedential Uber-Powers under cover of a "war" that never once presented an existential threat to the nation...save that the un-American policies of the Rove/Cheney junta are in themselves destroying the fabric of the nation. At least Lincoln's allegedly extra-legal suspension of habeas was in response a bona fide threat to the actual existence of the Union. Bush and cronies can say no such thing of the nine-one-one attacks...or of Afghanistan...or of Iraq...or Iran...but you get the point.

I understand almost the entirety of present discourse assumes as you do that this "war" thing is legitimate and thus gives the C-in-C a blank check. But the reality is the wording of the original AUMF is so broad that any sane court would strike it down as void-for-vagueness.

Do I see that happening any time soon? Of course not. I never said this was a sane political milieu or that the court was untouched by the madness. We've known better than that since the court gave the Rove/Cheney puppet the White House despite the big battle being in a state run by his brother and the count being run by a rabid partisan.

It's a bit off topic, this comment, to be sure, but it seems a proper time to beat this particular drum. By the reasoning used to give your "C-in-C" his war powers we could have as well given them to Johnson. Shame on anyone who goes along with such deadly, dangerous nonsense.

The real point is whether or not the Comey testimony of itself gives sufficient evidence to impeach...or merely to turn on the subpoena machine. Either way, it's time to bring these miscreants to some semblance of justice under the rule of law...and maybe restore the values for which we were supposed to be fighting this "war".
 

Charles: ...are you seriously claiming that the ROBERTS Supreme Court would have no trouble overruling Korematsu if a similar fact pattern presented itself?

Wrong question, wrong emphasis. Just because the bench has recently been packed with ideologues doesn't mean that, say, going back to Plessy would be right. Hell, slavery was legal. Are you saying it only became wrong when the law changed?

Professor Tamanaha's book deals with this point at length, the way folks like you and Yoo and Roberts are willing to view law as an instrumentality to power rather than a safeguard of the ideals for which we're supposed to be fighting.

I like to think this Scott Horton post makes the point well, "In a proper society, the lawyers are the guardians of law, and in times of war, their role becomes solemn." So too of Judges and elected officials, if you think about it.
 

Charles: I will definitely try to re-read Korematsu if Bush starts interning all Arab Americans again.

Translated: "You've got me dead to rights but I'll be damned if you can make me say so". This is the kind of behavior that has branded your twin/clone/alter-ego a cowardly, lying cheat. For that matter your answer to Arne's request for text from the Constitution was predictably non-responsive. Keep it up, you'll be fixing DUI's in Colorado in no time.
 

Arne Langsetmo:

Think of it as a penumbra of warpowers, if you prefer. Actual "spying on the enemy" is not explictly in the Constitution either. Are you going to argue the President cannot do that?

Robert:

I'm not trying to be non-responsive. Just busy, that's all. Obviously, not as busy as Bush who is trying to act BEFORE we get to a nuclear, "bona fide threat" to our actual existence.

Also, I'm not the person to argue "wrong" or "right" with (see, i.e. Roe v. Wade -- even I have to admit it IS legal) -- BTW: since we are off-topic, do you think the Congress can LEGALLY, under separation of powers, subpoena the President?
 

Only 2/3rds of the way through the Yoo interview, I, no babe in the woods, am still utterly, utterly astonished.

Yoo, and Cheney and Addington and Bush effectively declared war on the United States itself--and unleashed the full war fighting capabilities of the United States on the United States.a
 

Charles:

Think of it as a penumbra of warpowers, if you prefer. Actual "spying on the enemy" is not explictly in the Constitution either. Are you going to argue the President cannot do that?

But you're ignoring the "plenary", "U.S. person", and "without a warrant", and the fact that Congress has "warpowers" (in fact "plenary warpopwers" to declare war, as well as the power to raise armies, regulate the troops, equip a navy, etc..

As people have pointed out here and previously, Congress also has a role in "war powers"; see, e.g., Youngstown and the early marine captures cases. The "CinC" power is not plenary. I've argued previously that Congress, consistent with the powers they're given in Article I, could if they wanted insist that armies go to war armed only with plastic knives (not that they'd be likely to do so, but it would be in their power).

Then you run into the problems of the Fourth Amendment. How can you argue a general "penumbral" power when there's a specific clause that forbids it?

In any case, if you want to defend this argument about "penumbras", you'll need to do better than just make the claim. Cites would be appreciated.

Cheers,
 

Ah, but Arne, if Youngstown mattered, Yoo would have discussed it in the torture memos!
 

The PBS interview with James Baker airs a remarkably candid analysis of the real intent behind administration proposals to "modernize" FISA.

The standard talking point is that such "modernization" amendments, which would rewrite the fundamental definitions of "electronic surveillance" that determine the scope of the statute, are meant harmlessly to make the law "technology neutral." But Baker indicates that the real intent is to "carve out" some communications so that the decision to intercept them could be made without going to the FISA court:

PBS: What's the heart of the difference between going through the FISA process and doing that National Security Agency eavesdropping program the way the president ordered?

BAKER: Let me try to answer your question in this way. When people talk about modernizing FISA and the need to modernize FISA, when you step back and think about it for a moment, what's really going on is an effort to try to change the definition of electronic surveillance under FISA. ...

The way FISA is constructed now, certain things, if they fall within the definition of electronic surveillance, have to be approved by the FISA court before you can start collection. If you change the definition of electronic surveillance so that you carve out certain types of communication, then somebody else other than the FISA court could approve that. It could be the president; it could be the attorney general; could be somebody down at the FBI field office or at the NSA -- wherever the determination is made that this is the appropriate official to do that. So what you're really talking about when you talk about modernization of FISA, at the end of the day, you're really talking about who's going to approve a particular type of collection on a particular type of communication stream. ...


Danger, Will Robinson!

This is another warning sign that rewriting FISA can have effects not readily apparent in the language, effectively crippling the statute's key safeguard -- independent judicial review. And since it all would be applied in secret, none of us would know for sure what the effect would be.
 

I know it is not popular with many legal scholars, but I always liked the ninth amendment:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

If the power isn't explicitly given to the president, then he's trampling my ninth amendment rights.
 

As I pointed out, actual "spying on the enemy" is not explictly in the Constitution either. Too bad Robert Hanssen didn't realize he could have used the "President violated my 9th Amendment Rights" defense -- LOL -- I'm not here to defend anything against your kind. I'm the devil's advocate, remember.
 

Charles,

For Mr. Hanson--how about providing aid and comfort for the enemy? And the 9th says nothing about an enemy, only the people.
 

Charles:

As I pointed out, actual "spying on the enemy" is not explictly in the Constitution either. Too bad Robert Hanssen didn't realize he could have used the "President violated my 9th Amendment Rights" defense -- LOL -- I'm not here to defend anything against your kind. I'm the devil's advocate, remember.

Nah. You're here to throw out "red herrings" and try and sow confoozion. Not a good tactic here; too many people are not easily snowed.

I didn't say that "spying on the enemy" wasn't within his powers. What I did say is that spying is not a plenary preznitdential power, and thus can be "regulated" (as are all things military; see, e.g., Title 10 of the U.S. code).

Nor does Hanssen have a valid 9th Amendment claim (dunno why you thought he did). Are you confoozed, or just trying to be confoozing?

Cheers,
 

Charles-
I will definitely try to re-read Korematsu if Bush starts interning all Arab Americans again.

I hope you'll re-read Korematsu before the next time you bring it up as establishing any executive right to intern American citizens. Then read 18 USC 4001(a), prohibiting the detention of U.S. citizens without an act of Congress, enacted specifically to prevent another Korematsu.
 

As I said, I'm not here to defend anything against your kind. I will note that habeas corpus can be suspended by an act of Congress too. The tough part is what can a President do if Congress won't? I'm the devil's advocate on these issues, remember.
 

Post a Comment

Home