Balkinization  

Thursday, August 09, 2007

Are New FISA Sections 105A and 105B Mere Window Dressing? Are They Constitutional?

Marty Lederman

In comments to a post of mine below, "Just an Observer" begins a very interesting discussion, joined by "occasional observer," concerning whether the certification procedure in new FISA sections 105B and 105C of the Protect America Act is mandatory or merely optional. JaO and OO have asked me to weigh in.

I don't have that much to add. JaO is correct, I think, that the certification procedure of 105B and 105C is merely optional. [UPDATE: But see the Notice DOJ filed today in the CCR v. Bush case in the Northern District of California, more or less stating that the 105B procedures are required. Hat tip to "cboldt.")] The only incentive the government has to use the procedure is in order to compel cooperation from service providers (telecoms, ISPs, etc.), and to give such providers some legal cover when they give assistance (although as JaO points out, the legal cover might not be much more than they already enjoy).

I don't think the Administration ever contemplated not using the procedure -- it's very beneficial to them and imposes very minimal burdens -- but even if they don't, I am not sure it would be a big deal, for two reasons.

First, in order for a surveillance program to fall within section 105B in the first place, it has to consist purely of acquisitions that are not "electronic surveillance" -- i.e., something that either wasn't covered by FISA already, or that is now not covered by virtue of the new carve-out in section 105A. So 105B and 105C do not provide any additional authorization authority for stuff that would otherwise be FISA-covered.

Second, the certification burden on the government is virtually toothless -- the NSA should be able to obtain court sign-off on the program without much trouble. See the final three paragraphs of this post. And as Orin points out today, even in the unlikely even the FISA court rejects a certification, the program would remain in effect unless and until the Supreme Court affirms that FISA court decision.

There is, however, one potentially important ramification -- in addition to losng the ability to compel service providers for assistance -- if the NSA chooses not to use a "certified" program under 10B and 105C: In that case, the NSA presumably would not have to follow FISA's minimization requirements, which would be required in the case of a certified program. FISA minimization (50 USC 1801(h)) would require:
(1) specific procedures, . . . reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information (unless the information is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes);
and
(2) procedures that require that nonpublicly available information, which is not foreign intelligence information shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance (with a similar evidence-of-crime exception).
Such minimization procedures might be quite important, and valuable -- yet they could be avoided if the Administration opts out of the certification process (something I doubt they will do). [UPDATE: DOJ's filing today suggests that 105B is mandatory: "[T]he statute subjects such surveillance to certain procedures, minimization requirements, FISC review, and congressional oversight."]

All of which is to say -- and I think JaO and I agree here -- that the real action in the new law is in section 105A, which simply exempts a huge amount of international communications from FISA altogether (even if the minimization requirements would apparently come back into play under a certified program). Anonymous Liberal calls this a "major legal loophole," but I don't quite understand how it's a "loophole"; it is, rather, the very be-all and end-all of the Act.

One other thing -- there is a very serious question under Article III of the Constitution whether the FISA Court can issue the sort of "programmatic" order contemplated by section 105C, which is one further major step removed from the individual warrant analogy that was the original constitutional justification for the role of the FISA court when it comes to approving electronic surveillance.

Comments:

Not directly on the statutory analysis, but the power of 105A is being exercised in the consolidated cases (multi-district litigation) in the ND of California. The government filed a notice yesterday informing the court that even if the government's other arguments fail, the new statute produces the same result.
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Case M:06-cv-01791-VRW for the PACER enabled. (plaintext here)
 

I agree completely with your post, Marty. I think whether you consider this a "loophole" or not has a lot to do with your baseline expectations. Until today, I hadn't focused on the text of the act of itself, but based on what I'd read in the media and in blog posts, I had assumed that these oversight procedures that everyone had been discussing and debating were mandatory, i.e., that if the president wanted to use these new surveillance powers, he'd at least have to jump through a few hoops. But it doesn't appear that's the case.

This may be obvious to people who are very familiar with FISA and it may well have been the intention of those who proposed this legislation, but I'd be very surprised if the reporters covering this story (or even many members of Congress) were aware that these new procedures are basically optional and can be completely disregarded if the President so chooses. I think if that was explained to them, they'd consider this a legal loophole.

But whether we call it a loophole or not, I think we have to try to educate journalists (and Congress!) about this point, because I really don't think it's widely understood.
 

I'm still not completely clear on the interactions between the various statutory parts -- I think they are deliberately "dense."
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I don't take the notice to Judge Walker as conclusive that the DNI and AG find 105B (and 105C flowing from that) as mandatory for ALL "not electronic surveillance."
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But even if 105B surveillance IS undertaken (I assume it will be), that 105B "not electronic surveillance" doesn't necessarily represent the grand total of "not electronic surveillance" being undertaken. Some subset of the "not electronic surveillance" will easily fit in the contours of 105B, so there will be action there
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Or, said another way, some, but not all 105A surveillance is 105B surveillance. I may change my mind on that if I can ever untangle the function of 105B(a)(2).
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But on the point of 105B having some effect, 105B(f) is what provides the authority to pay the telco for the data/hardware and/or manpower. 105B(g) provides the compulsion widget, which might be necessary to get Qwest off the dime. 105B(l) is the carrot of immunity, and 105(m) is the "may scrub" license. Those provisions are helpful to obtain "cooperation."
 

Professor Lederman:

One other thing -- there is a very serious question under Article III of the Constitution whether the FISA Court can issue the sort of "programmatic" order contemplated by section 105C, which is one further major step removed from the individual warrant analogy that was the original constitutional justification for the role of the FISA court when it comes to approving electronic surveillance.

What is your reasoning here?

It is well established among the circuit courts (and is unlikely to be revisited by this Supreme Court) that the 4th Amendment does not require warrants for intelligence gathering against agents of foreign powers inside the US. Consequently, Congress cannot be said to be using its necessary and proper powers to enable the 4th Amendment when it enacted FISA. Instead, Congress allegedly used a heretofore unknown Article I power to direct foreign intelligence gathering and simply created a faux warrant system to enforce FISA's restrictions on the Executive's Article II powers.

That being the case, I see no reason why FISA "warrants" have to comport in any way to 4th Amendment requirements of form or substance unless Justice wants to use the evidence gained under such a warrant as evidence in a criminal trial.
 

First. Marty, thank you for your post and your kind remarks.

I am intrigued by the quote you cite from the filing in CCR v Bush:

Moreover, because the statute subjects such surveillance to certain procedures, minimization requirements, FISC review, and congressional oversight, Plaintiffs' allegations of a First Amendment chill are further negated.

Is the administration really asserting that literally all "such surveillance" -- the immediate antecedent for which clause being "any alleged surveillance directed at individuals outside the United States" -- is subject to minimization, FISC review and congressional oversight? I doubt this very much.

I do not believe that if the government surveils someone locally in Moscow or Islamabad, these conditions attach. I do not believe minimization occurs at all in cases like that, and certainly not any form of FISC review.

So the only fair reading of the quote above is "the statute subjects [at least some] such surveillance ..." But the administration, for political reasons, would like us to assume otherwise.
 

Bart: Read carefully. I didn't say anything about the Fourth Amendment here. I said there was an Article III issue.

In earlier posts, I have raised a difficult Fourth Amendment question. That question would not be nearly so difficult, nor interesting, if all of the surveillance covered by section 105A dealt exclusively with "agents of foreign powers inside the U.S." The problem is that the surveillance here will acquire communications of plenty of people inside and outside the U.S. who are *not* agents of foreign powers.
 

As for the minimization verbiage in 105B, it is worth remembering that one big requirement is missing there, relative to the minimization actually required under FISA court orders -- court review. The government must file its detailed minimization procedure in applying for a court order, and the court must approve it. But left to its own unchecked devices under 105B, the executive can easily bend the tradeoffs, stated in general terms in the 50 USC 1801(h) definitions, too far in its own favor.

Nevertheless, the skeletal definition of minimization is not nothing. If the government wants to build databases for reverse-targeting to avoid domestic FISA warrants, as well as various methods of data mining, it is hugely advantageous to be unfettered by minimization altogether.
 

I agree with JaO and Marty, seeing the error of my ways. But I'm troubled because I also see how I was snookered and, worse, why (H/T JaO). But that's irrelevant. What's truly awful here is that most of Congress and the informed public were also snookered and remain so.

In his discussion with the White House, Orin Kerr was given to assume that 105B is mandatory. The ACLU seems to be under the same impression. Yesterday it filed a motion before the FISA court seeking to unseal its January 10 order approving the then-TSP, any follow-up orders, and all government briefs. (See TPM Muckraker for the link.) Commenting on theact, the ACLU said "the law's implications are dramatic." As I said pointing to the link under the previous post, if JaO is right, they ain't seen nothin' yet -- and may never.

The act brims with drafting tricks. Words in 105B and C track those of 105A to suggest that B and C police the opening 105A creates. At the heart of it is the common phrase "directed at a person reasonably be1lieved to be located outside of the United States." 105B seems to flesh it out through DNI/AG certified guidelines that meet minimization standards and pass judicial muster. Even the caption "Additional Procedures" spans both A and B.

The PR campaign during the run-up to the enactment added to the confusion. It spoke of amending FISA, not cutting it off at the knees. 105A's carve-out is so broad that, unpoliced, it stands to eviscerate protections against domestic surveillance. Ergo .... (Yeah, right!) Earlier the DOJ filing in the multi-district litigation might have confused me. Now I see that it no more limits how the law will be used than does the pre-enactment or current politico-academic spin.

As for how toothless the "clearly erroneous" standard is, recall that Orin Kerr thought it had bite. The FISA court after all has said "No" to a program.

I'm still unsure that the volunteer telecoms would forego the law's going-forward immunity, which is awfully inviting. I think a lot will turn on the outcome of Hepting v. AT&T, which as I noted earlier is scheduled for oral argument before the 9th Circuit on August 15. That and the ACLU motion are where I pin my hopes within the judicial system, such as they are.

But what about a legislative fix? I'd liken the act -- though for reasons all its own (the administration's bag tricks being bottomless) -- to the amendment that was slipped into the USA PATRIOT Act, the one that would have enabled the White House to avoid Senate confirmation of its replacement US Attorneys. That is now history; this act deserves a fate no kinder.

I'd urge people to get the word out early and often. There's even less reason to stand for this law than before, and what's new can be readily framed so as to put the law in a nasty light, one that should gall most anyone (leaving aside the 28%ers and cynical savants). In fact the truth of the matter stands talking points about "terrorist loopholes" on their head. In short, I share Anonymous Liberal's ire, having come halfway through the maxim that starts "Fool me once ...."
 

Whatever else one may say about it, the administration has a flair for irony. Its "Notice of Statutory Amendments" filed with Judge Walker in California skips past 105A and opens a comforting summation of 105B with the words "In relevant part ...."
 

Professor Lederman:

Bart: Read carefully. I didn't say anything about the Fourth Amendment here. I said there was an Article III issue.

OK. I perhaps mistakenly understood you to be suggesting that the 4th Amendment enforced by an Article III court required certain standards for warrants which a 105C programmatic order may not meet. Absent the 4th Amendment, what provision of Article III do you contend applies here and why?

In earlier posts, I have raised a difficult Fourth Amendment question. That question would not be nearly so difficult, nor interesting, if all of the surveillance covered by section 105A dealt exclusively with "agents of foreign powers inside the U.S." The problem is that the surveillance here will acquire communications of plenty of people inside and outside the U.S. who are *not* agents of foreign powers.

All surveillance of telecommunications involves by necessity large numbers of perfectly innocent people who contact or are contacted by the targeted telephone number. I am unaware of any case law which holds that otherwise legal surveillance of the targeted telephone number becomes illegal if communications involving that number include innocent people. Therefore, the only real question is whether the 4th Amendment protects the targeted number.

Correct me if I am wrong, but it is my understanding that the 4th Amendment does not extend rights to foreign telephone numbers. If not, then the FISA reform allowing warrantless surveillance directed at foreign numbers does not violate the 4th Amendment.

Furthermore, people and property which cross our border also do not have a 4th Amendment expectation of privacy from search and seizure. I do not see the argument for extending such a right to international telecommunications. Consequently, even if the FISA warrant requirement did not apply to any international telecommunications at all, I do not see how anyone's constitutional rights would be left unprotected.
 

Absent the 4th Amendment, what provision of Article III [does Prof. Lederman] contend applies here and why?

Oh, I dunno. I'm guessing he was thinking about "advisory opinions" or, more to the point, "case or controversy"....

Cheers,
 

Prof. Lederman, forgive me.

I am unaware of any case law which holds that otherwise legal surveillance of the targeted telephone number becomes illegal if communications involving that number include innocent people. Therefore, the only real question is whether the 4th Amendment protects the targeted number.

It doesn't become illegal. Just as a Title III tap without a warrant would be illegal for both the "target" and any "associates" whose conversations are captured, such a tap absent a FISA court order is illegal under the explicit terms of 50 USC § 1809. But with such a court order in hand, there's no statutory problem with recording whatever the "associate" says (as well as the "target"), regardless of the applicability of §§ 1801(f)(1) and 1801(f)(2).

HTH.

Cheers,
 

Arne Langsetmo said...

BD: Absent the 4th Amendment, what provision of Article III [does Prof. Lederman] contend applies here and why?

Oh, I dunno. I'm guessing he was thinking about "advisory opinions" or, more to the point, "case or controversy"....


You could be correct. I am reluctant to hazard a guess as to Professor Lederman's reasoning.

Assuming that the case or controversy clause of Article III prohibits courts from issuing programatic warrants not required by the 4th Amendment because they would constitute unconstitutional advisory opinions, then this reasoning would render all FISA warrants for foreign intelligence gathering to be unconstitutional because none of them are required by the 4th Amendment.

Professor Lederman, would you care provide us with your Article III theory?

BD: I am unaware of any case law which holds that otherwise legal surveillance of the targeted telephone number becomes illegal if communications involving that number include innocent people. Therefore, the only real question is whether the 4th Amendment protects the targeted number.

It doesn't become illegal. Just as a Title III tap without a warrant would be illegal for both the "target" and any "associates" whose conversations are captured, such a tap absent a FISA court order is illegal under the explicit terms of 50 USC § 1809. But with such a court order in hand, there's no statutory problem with recording whatever the "associate" says (as well as the "target"), regardless of the applicability of §§ 1801(f)(1) and 1801(f)(2).


You appear to be arguing that surveillance under a warrant does not become illegal if it includes innocent conversations, but otherwise legal warrantless intelligence gathering does become illegal if it includes innocent conversations.

What is your reasoning for this distinction between equally legal surveillances for criminal evidence and foreign intelligence gathering?

None of the defendants in the Truong line of cases thought to make this argument concerning the foreign intelligence gathering against their telephone numbers which almost certainly included innocent conversations unrelated to their spying.
 

Bart said: You appear to be arguing that surveillance under a warrant does not become illegal if it includes innocent conversations, but otherwise legal warrantless intelligence gathering does become illegal if it includes innocent conversations.

What is your reasoning for this distinction between equally legal surveillances for criminal evidence and foreign intelligence gathering?

Bart,

I won't put words in Arne's mouth, but in my opinion, the distinction rests upon the reasonability of the search. We all agree that that non-US citizens outside the US have no 4th A interest. Therefore, surveillance of a conversation between two foreign ctizens outside the US need not be "resonable" under the 4th A. However, a US citizen within the US does not lose 4th A protections merely because he is conversing with someone who does not enjoy the protections of the 4th A. Surveillance involving that US citizen's conversations must be reasonable--i.e., the govt must prove some justification for violating his privacy. In the domestic criminal context, intercepting a conversation between the subject of a warrant and his associate does not violate the associate's 4th A rights--the search is reasonable b/c the govt has shown (by obtaining a warrant) that there is probable cause to believe that intercepting the target's phone calls will yield evidence of criminal activity. The new FISA bill eliminates the need for the govt to show even reasonable suspicion that intercepting a target's call will yield foreign intelligence information. In my view, that the other party is merely foreign is not sufficient justification to interecept private conversations.
 

Adam:

Bart,

I won't put words in Arne's mouth,...


And a very good suggestion that is. I said what I meant and I meant what I said. I don't think it necessary to add anything, particularly given the exemplary nature of the participants here. I will say no more.

Adam, you go on to address Fourth Amendment issues. I specifically limited myself to only the statutory considerations.

Cheers,
 

adam:

I won't put words in Arne's mouth, but in my opinion, the distinction rests upon the reasonability of the search.

In that case, I do not see the distinction. The courts have held that wiretaps for foreign intelligence gathering against agents of foreign groups is a reasonable search and does not require a warrant. In the criminal evidence gathering context, the wiretap is an unreasonable search made legal by the warrant.

In both cases, the surveillance on the target is legal under the 4th Amendment, thus I cannot see why the incidental interception of innocent conversations during such surveillance is legal in the criminal evidence gathering context but not under the foreign intelligence gathering context.

Let me put this a different way. You do not need to offer probable cause that all persons calling to and from a telephone number are engaged in criminal activity to get a warrant, just that there is probable cause that criminal activity will be discussed at some time by some one on that phone number. Therefore, why should you have to prove that all persons calling to and from a telephone number are having discussions related to terrorism in order to fall under the foreign intelligence gathering exception to the 4th Amendment warrant requirement?
 

Arne said: And a very good suggestion that is...Adam, you go on to address Fourth Amendment issues. I specifically limited myself to only the statutory considerations.

Ha! True enough, my apologies. I did not intend to imply that you would agree with me. Although the 4th A. implications of this new amendments are interesting questions to me, I see that these have been addressed on an earlier thread and, in any case, are not the subject of this post; so I will say no more.
 

On a general topic, I'd note that one of the principal ways that courts have sidestepped warrant requirements in recent years is though a careful parsing of what is a "search" (at least in the context of the Fourth Amendment).

Between defining what physical acts constitute "searches" narrowly, and the constant haggling over "reasonable expectation of privacy" (which then in turn is used to determine if a Fourth Amendment "search" has occurred), this is the lingua franca of Fourth Amendment law.

Once we determine there are no Fourth Amendment implications, what is determined to be a "search" (or, more specifically, "electronic surveillance") for statutory purposes, of course, is what the statute says it is. Some statutes do this better than others, as noted by Profs. Lederman and Kerr.

Cheers,
 

Bart:

I don't think the Article III argument has anything to do with whether the warrant requirement is part of the Fourth Amendment or purely statutory.

Rather, to have a case or controversy, you need to have the real parties in interest before the Court. In an ordinary warrant proceeding, even though it is conducted ex parte, you have them. The government is attempting to do something that will injure a particular individual (understand, I am using "injure" in the constitutional sense-- I understand the search may be permissible) and the Court evaluates the circumstances and decides whether the government is permitted to injure that person.

If Congress imposed a requirement in FISA that every specific act of eavesdropping required a warrant, you could make whatever constitutional arguments you think are applicable pursuant to the Fourth Amendment, Article I, and Article II (personally, I disagree with just about everything you say on this-- I think that all of the President's war powers are subject to congressional regulation under the broad grants of power to set rules for the armed forces under Article I, but that is neither here nor there). But under Article III, since you have an individual act of eavesdropping against an individual person who will suffer an injury, you have a case or controversy.

The problem comes when Congress purports to authorize the administration to come to court in advance of there being any specific target, and just say "we want to eavesdrop on all communications in category X". If "category X" is sufficiently broad that we don't know who the parties are going to be in any real sense, this would arguably not be a case or controversy under Article III and any judicial authorization would be purely advisory because it wouldn't go to the specific circumstances of the case.

Now, it is true that once a case or controversy is before a federal court, the Court can issue broad declaratory or injunctive relief to prevent injuries to others. But under Los Angeles v. Lyons, you need a party who has suffered or is about to suffer injury before the Court before the Court can do that.

So a broad system of "programmatic warrants" whether required or permitted or impermissble under other provisions of the Constitution, creates a huge Article III problem.
 

Professor Lederman:

We have some interesting guesses as to what your Article III objection may be. Care to tell us what it is?
 

Professor Lederman:

We have some interesting guesses as to what your Article III objection may be. Care to tell us what it is?


Bart, there's no need to guess. Marty was obviously referring to Article III's 'case or controversy' requirement, as other commenters have noted. Federal judges can't issue advisory opinions. They only have the authority to hear actual cases and controversies. This is the basis of standing doctrine.

For future reference, Bart, whenever any legal commentator refers to an "Article III issue", they are talking about the case or controversy requirement. Marty wasn't trying to be cryptic. He just assumed everyone knew this.
 

Mike:

There appears to be a consensus here that Professor Lederman is referring to the case or controversy requirement, but two different variations on how that provision may apply. I am simply curious what his argument is.

I do not see how your standard FISA warrant creates a case or controversy any more or less than a program wide warrant. Both requirements are creations of Congress, not the 4th Amendment.

Even if you can find a provision of Article I which empowers Congress to direct foreign intelligence gathering, FISA arguably represents an unconstitutional delegation of that legislative regulation authority to the Courts, which in turn would require them to make unconstitutional advisory opinions in violation of Article III.
 

"I do not see how your standard FISA warrant creates a case or controversy any more or less than a program wide warrant. Both requirements are creations of Congress, not the 4th Amendment."

Bart, I just explained it to you. Your standard FISA warrant creates a case or controversy because it is directed against a discrete individual. The real parties in interest-- the United States and the person under surveillance-- are "before" the Court (albeit in a metaphorical sense because it is an ex parte proceeding).

The Article III question is whether Congress can direct the federal courts to an issue an opinion that "in all cases involving X circumstances, the government is authorized to search". In this latter scenario, you don't have a target of the surveillance as a party to the proceeding. I.e., you don't have injury, causation, and redressibility. So, it is not a case or controversy under Article III.

"Even if you can find a provision of Article I which empowers Congress to direct foreign intelligence gathering...."

Since you seem to find it impossible to write without spinning, I must take issue with this. The President must take care that the laws be faithfully executed. That means the President must FOLLOW THE LAW.

The President IS commander in chief of the armed forces. However, Article II provides that CONGRESS has PLENARY power to make rules governing the armed forces, declare war, appropriate funds on terms and conditions it finds appropriate with respect to military activities and warfare, and make rules concerning captures on land and water.

In other words, the President is BOUND to duly-enacted laws of Congress that restrict the manner in which he conducts military affairs. Congress can refuse to fund foreign intelligence activity, condition funding of foreign intelligence activity on compliance with FISA, or simply bar the President from engaging in surveillance activities.

It is true that in the absence of such legislation, the President, as commander-in-chief, has the power to engage in foreign surveillance. But there's NO PROVISION IN THE CONSTITUTION that says that Congress' powers to regulate the military and to appropriate money are not applicable to foreign intelligence gathering.

Now, I should be clear-- there is an argument that the Authorization to Use Military Force authorizes the President to circumvent FISA. But that argument is consistent with the concept that Congress DOES have the power to regulate this activity, but can also choose not to regulate it or to suspend the regulations and restrictions through a declaration of war or an authorization to use force.

This is a good demonstration of a general problem with right wing interpretations of executive power these days. The President has lots of power in wartime, both because of the inherent powers of his office and because of delegations or acquiescence by Congress. But to say this is not the same as saying that Congress has no power to step in and stop the President. Article I is very clear, explicit, and specific in outlining that Congress sets the rules of warfare if it wishes to and the President must work within them.
 

Dilan said...

BD:"I do not see how your standard FISA warrant creates a case or controversy any more or less than a program wide warrant. Both requirements are creations of Congress, not the 4th Amendment."

Bart, I just explained it to you. Your standard FISA warrant creates a case or controversy because it is directed against a discrete individual. The real parties in interest-- the United States and the person under surveillance-- are "before" the Court (albeit in a metaphorical sense because it is an ex parte proceeding).

The Article III question is whether Congress can direct the federal courts to an issue an opinion that "in all cases involving X circumstances, the government is authorized to search". In this latter scenario, you don't have a target of the surveillance as a party to the proceeding. I.e., you don't have injury, causation, and redressibility. So, it is not a case or controversy under Article III.


I understood you the first time around.

Essentially, the difference between an individual warrant and a programmatic warrant is simply a difference of scale like the difference between a lawsuit against a single person and a class action suit. There is a case or controversy in both individual and class action suits so long as you have a legally redressable injury.

The alleged injury is the same regardless of whether the TSP is targeting one person or many - the loss of the privacy rights purportedly meant to be protected by FISA.

There is a genuine question of whether an individual may effectively bring suit for legal redress when it is nearly impossible to prove standing and damages against program protected by the state secrets privilege which is not using the gained intelligence against the target in court. However, this problem is common to both single and group targets of the TSP.

Thus, I still do not see how your standard individual FISA warrant creates a case or controversy any more or less than a program wide warrant.

BD: "Even if you can find a provision of Article I which empowers Congress to direct foreign intelligence gathering...."

The President must take care that the laws be faithfully executed. That means the President must FOLLOW THE LAW.


Agreed. However, the supreme law of the land is the Constitution and the President must follow the Constitution and ignore unconstitutional statutes or regulations. Absent an Article I provision which empowers congress to direct foreign intelligence gathering, FISA is unconstitutional to the extent that it attempts to do so.

The President IS commander in chief of the armed forces. However, Article II provides that CONGRESS has PLENARY power to make rules governing the armed forces, declare war, appropriate funds on terms and conditions it finds appropriate with respect to military activities and warfare, and make rules concerning captures on land and water.

Article II grants the President general executive and command authority over foreign relations and the military. Article I grants Congress specific powers over foreign policy and the military which are plenary and trump the President's general powers.

However, Congress' powers in this area are limited to those enumerated in Article I. Article I does not provide Congress with blanket Executive and CIC powers as Article II provides the President.

Consequently, in all other areas not enumerated in Article I, the President retains plenary authority over foreign policy and the military.

Thus, we once again return to the search for the elusive Article I provision which permits Congress to direct foreign intelligence gathering. Please cite an exact provision because your summary above is incorrect.

Congress can refuse to fund foreign intelligence activity, condition funding of foreign intelligence activity on compliance with FISA...

Congress can simply fund or defund the NSA. The power of the purse granted by Article I does not permit Congress to direct the actions of the agency as either the Executive or the CiC.

NO PROVISION IN THE CONSTITUTION that says that Congress' powers to regulate the military and to appropriate money are not applicable to foreign intelligence gathering.

Article I grants Congress the power to make "Rules for the Government and Regulation" of the military. Courts have always interpreted this provision to allow Congress to pass regulations for the good order and discipline of members of the uniformed armed forces such as the UCMJ.

There is a fundamental distinction between the President's executive and command powers to direct the actions of the civilian and military foreign policy departments and Congress' power to govern and regulate the individual conduct of the members of the military (but not civilian) branches.

JaO also hangs his FISA constitutionality argument the novel theory that this provision grants Congress executive and CIC powers to command and direct military units. However, neither he nor you have come up with a single court which agrees with this theory.

Now, I should be clear-- there is an argument that the Authorization to Use Military Force authorizes the President to circumvent FISA. But that argument is consistent with the concept that Congress DOES have the power to regulate this activity, but can also choose not to regulate it or to suspend the regulations and restrictions through a declaration of war or an authorization to use force.

Good point. I do not think much of the AUMF argument or the theory that the President's Article II Executive and CIC authority applies only during wartime. The better argument has always been the President has plenary power over foreign policy and the military in all areas where Article I does not enumerate a specific power to Congress such as the power to set rules for captures as they did in the DTA and MCA.
 

Bart:

A wide-ranging response isn't necessary, but the problem with your position is you are extending all sorts of penumbras and emanations to the Commander in Chief power but none to the Congressional war powers.

In other words, the words "commander in chief" say nothing about intelligence gathering at all. You could just read this to mean that the President has the power to give orders to the troops. Obviously, that is not a reasonable reading.

But while you adopt the broad reading of Commander in Chief as containing all sorts of implied powers, you refuse to imply any power to Congress that isn't specifically mentioned in Article I. Indeed, under your reading of Article I, one could argue that Congress has no power to raise and support an air force, because it isn't an army or a navy.

Article I contains implied powers just like Article II does. Just as a commander in chief power implies the power to conduct surveillance, the powers to regulate the armed forces, to raise and support armies, to spend money, and to regulate captures imply the power to put limits on surveillance activities. Indeed, UNLIKE the President, Congress has a necessary and proper clause. In other words, the TEXT of the Constitution says that the Congress gets implied powers and the President DOESN'T!

Further, nothing in Article II says that the President's commander in chief power OVERRIDES congressional legislation. It just says that the President is commander in chief. And since another provision says the President must follow the law, the logical reading is that the President has to live within congressional restrictions on his power.

One more thing. It doesn't make sense to say that the President is taking care that the law is faithfully executed by ignorning statutes that the President believes restrict his Article II powers. The "take care" clause is a LIMITATION on presidential power-- it says he must follow the law at all times. Even if a statute is unconstitional, AT MOST, that means that the "take care" clause has no application. But nobody believes that it is constitutionallly REQUIRED that the President refuse to obey congressional limitations on his power. Again, if the President obeys FISA, he is clearly taking care that the laws are faithfully executed, whether or not FISA validly limits his power. If he doesn't obey FISA, he is not taking care that the laws are faithfully executed unless FISA is actually unconstitutional.
 

Dilan said...

A wide-ranging response isn't necessary, but the problem with your position is you are extending all sorts of penumbras and emanations to the Commander in Chief power but none to the Congressional war powers.

I do not engage in penumbral legal fictions and leave that to the left. Nor am I proffering any implied powers.

Article II's text expressly makes the President the sole executive and CiC. Those terms are not used outside of Article II. The Supreme Court has called the President the sole organ of foreign policy for a reason.

In stark contrast, Article I provides Congress with specific enumerated powers over foreign policy and the military which nowhere mention executive or command authority to direct foreign and military policy.

In other words, the words "commander in chief" say nothing about intelligence gathering at all.

Are you actually contending that intelligence gathering is not an executive and military function? This is pretty basic.

UNLIKE the President, Congress has a necessary and proper clause.

The N&P clause allows Congress to enact legislation necessary and proper to allow the branches to exercise their enumerated powers. For example, Congress uses the N&P clause to create the NSA so that the President may use his executive and CiC powers to direct foreign intelligence gathering.

The N&P clause is not an independent source of substantive power allowing Congress to enact anything is thinks is "necessary and proper." For example, the N&P Clause does not allow the Congress to assume the President's CiC powers by enacting FISA to direct foreign intelligence gathering just because Congress might believe it necessary and proper to do so.

Further, nothing in Article II says that the President's commander in chief power OVERRIDES congressional legislation.

As I posted above, Congress' enumerated Article I powers are plenary and trump the President's general executive and CiC powers. However, Article I must first provide for such an enumerated power.

The "take care" clause is a LIMITATION on presidential power-- it says he must follow the law at all times. Even if a statute is unconstitutional...

The courts disagree with you. Go read the case law to which I linked above.

Do you really think that the President must faithfully execute a law which states that the Bill of Rights is suspended for Dems and instructs the FBI to arrest all Dems, water board them until they admit to treason and then hung them from the nearest light pole?

The Constitution is the supreme law of the land and the President is not required to respect unconstitutional acts of Congress any more than Congress must respect unconstitutional acts of the President.
 

I do not engage in penumbral legal fictions and leave that to the left. Nor am I proffering any implied powers.

Article II's text expressly makes the President the sole executive and CiC.


Don't flatter yourself, Bart. The word "executive" means "one who carries something out", in this case the law. And the word "commander" means "one who has the power to give orders", while "in chief" means "at the top of the hierarchy".

So all those words literally mean is that the President has to carry out the law and has the power to give orders to the military. When you say that inherent in these powers is the power to conduct surveillance, you ARE in the penumbra. You aren't honest enough to admit it, but conservatives, just like liberals, believe in penumbras, just different ones.

The Supreme Court has called the President the sole organ of foreign policy for a reason.

You constantly cite this and take it out of context. The President has the sole power to recognize foreign governments, appoint ambassadors, negotiate treaties, etc. Thus, the Supreme Court has, for instance, upheld executive travel bans to Cuba.

But you seem to infer from this that this means that Congress has no power in foreign affairs. That is clearly not true. For instance, the President is not the "sole organ" in treaties-- the Senate has a ratification power. Similarly, Congress' power of the purse includes the power to defund embassies, and thus to force the President to change foreign policy.

But also, the foreign affairs that the Supreme Court spoke of is intercourse with foreign GOVERNMENTS. It doesn't mean "everything that happens overseas". For instance, US citizens abroad have constitutional rights that the judiciary can vindicate. Congress has the power to regulate commerce with foreign nations (see Art. I Section 8) as well as to regulate conduct in other countries as long as it contains a nexus to the United States (see EEOC v. Aramco).

So you are overselling this language. Foreign surveillance doesn't have anything to do with the intercourse with other nations that the President has plenary power to conduct.

Are you actually contending that intelligence gathering is not an executive and military function?

It is not, in any sense, an executive function. The executive function is to do what Congress tells it to do, period.

As for a military function, of course it is. But like all military functions, it is subject to the valid limitations of Congress.

The N&P clause allows Congress to enact legislation necessary and proper to allow the branches to exercise their enumerated powers. For example, Congress uses the N&P clause to create the NSA so that the President may use his executive and CiC powers to direct foreign intelligence gathering.

The N&P clause is not an independent source of substantive power allowing Congress to enact anything is thinks is "necessary and proper."


McCulloch v. Maryland rejected this argument 200 years ago, Bart.

Do you really think that the President must faithfully execute a law which states that the Bill of Rights is suspended for Dems and instructs the FBI to arrest all Dems, water board them until they admit to treason and then hung them from the nearest light pole?

That is a separate argument from what we are talking about. There is a difference between arguments that the Congress violated THE PEOPLE'S rights and that the Congress violated THE PRESIDENT'S powers. One can very well conclude that the President has the power to ignore unconstitutional laws that impinge on the rights of individuals other than the President, although I would still argue his remedy is to take the issue to court and get a declaratory judgment that the law is unconstitutional.

But the President is not trustworthy (this President or any other) to refuse to enforce laws on the ground that they restrict the power of the Commander in Chief. This would make the President judge, jury, and executioner, and the President will always claim that the Congress is wrong and he is right. These disputes MUST be fought in court.

But in any event, this is neither here nor there. The point is that you read "Commander in Chief" and "Executive" to mean many things other than what those words actually mean, but you limit the numerous congressional powers in Article I to their precise language, despite the fact that the Congress has an express necessary and proper clause that the Supreme Court has definitively held to allow Congress to make any law, whether or not within an enumerated power, so long as the ultimate end is a legitimate end of Congress.
 

dilan:

The executive in a government not only enforces the laws of the legislature, but also directs the functions of the government. Article II reinforces the second command element of executive power by stating that the President and no other branch is the CiC of the military.

The professors and others here have recommended the book "America's Constitution, A Biography" by Akhil Amar as an excellent source for understanding the Constitution. In particular, I would recommend that you read the chapter on the President's CiC power as compared to the powers bestowed upon Congress starting on page 185.

Article I states that "all legislative powers herein granted shall be vested" in Congress. The plain intent here is to limit Congress to the powers enumerated in the remainder of Article I.

In contrast, Article II provides a much broader grant of power to the President, stating that "The executive power shall be vested in a President" and later that "The President shall be commander in chief."

The language of Article I can be read as limiting Congress to enumerated powers while the language of Article II can be read as granting the president not only those powers enumerated in Article II, but also a general residuum unenumerated powers which can be considered to be executive in nature.

Consequently, my argument that the President exercises plenary authority over all executive matters apart from that expressly granted to Congress in Article I is firmly rooted on the text of both articles.
 

Bart:

Whatever Professor Amar says, the drafting history of the Constitution involved the REJECTION of the plenary executive that you are talking about. In short, they didn't want a king.

You are hanging your argument on a pretty thin reed. In truth, ALL branches of the government are supposed to have limited power. The judiciary, as conservatives remind us, is supposed to have limited power. The Congress is supposed to have limited power (and by the way, you and I would probably agree about how the Commerce Clause has been abused over the years).

But your contention seems to be that the President is not supposed to have limited power. That is ridiculous. NO SUPREME COURT CASE has ever endorsed your theory that because the Constitution vests the executive power in the President, that power is not subject to limitation by Congress. Indeed, the Truman Administration made that exact argument in Youngstown Sheet & Tube and it was rejected. While Youngstown leaves some room for there to be inherent executive powers that can't be checked in Congress, it COMPLETELY REJECTS the idea that any power that has anything to do with wartime falls within that box. (Remember, the issue in Youngstown was whether Congress could stop the President from keeping steel mills open to fight the Korean War.)

But more broadly, you still don't realize that there is nothing magic about the word "executive". The executive branch does not direct the functions of the government. It does not direct the courts. It does not direct the Congress. And when Congress passes a law, it is bound by it-- as even you would agree-- except possibly in rare instances when the law is unconstitutional.

And the reason, simply, is because "executive" doesn't mean "director". There's a reason why corporations have "executives" and "directors" and they are different people. An executive EXECUTES-- i.e., implements the policies determined by others. The executive power is the power to CARRY OUT the laws of Congress. I.e., Congress passes criminal laws, and the executive branch decides when and whom to prosecute. Congress declares war, and the executive branch determines when to launch the invasion. Congress appropriates money to an agency, and the executive branch determines how to spend it.

The President DOES NOT direct the operations of the government. That is why he is the chief executive, not the chief director. He carries out Congress' will. He is subject to Congress' limitations. And the greatest danger to our system comes from those who ignore this.
 

dilan:

Youngstown and all cases which follow its precedent involved situations where Congress possessed an Article I power over the subject matter at issue. Thus, we once again get back to the snipe hunt of identifying an Article I provision which grants Congress the power to direct intelligence gathering.
 

Bart:

If you distinguish Youngstown that way, you completely lose the argument on surveillance. Just as the Congress had the power to regulate the steel mills as part of its commerce power, Congress has the power to regulate telecommunications with foreign nations as part of the foreign commerce power.

The important thing about Youngstown is that the President's war power doesn't trump Congress' authority.
 

dilan:

Congress' power over the seizure of property (ie the steel mills) in Youngstown can be best thought to be derived from enforcing the 5th Amendment through the N&P clause. If I remember correctly, the Court held that the President had no Article II power to conduct this seizure. FISA has nothing to do with seizure of property.
 

Bart:

The Court did rule that. But notably, the Court rejected the argument that this was inherent in the President's commander-in-chief power.

Now you must disagree with that. Isn't the production of necessary materials for armaments part and parcel of prosecuting a war? And yet the Court said that Congress could stop Truman from keeping the steel mills open.

Really, Youngstown blows a big hole into your argument, because it holds that Congress' action controls with respect to an important incident of warfare. You'd be more honest if you just said you think Youngstown was wrongly decided.
 

Dilan said...

The Court did rule that. But notably, the Court rejected the argument that this was inherent in the President's commander-in-chief power.

Now you must disagree with that. Isn't the production of necessary materials for armaments part and parcel of prosecuting a war? And yet the Court said that Congress could stop Truman from keeping the steel mills open.


Seizing domestic private property or waging war against your own countrymen who are not in rebellion are not incidents of the CiC power.

Really, Youngstown blows a big hole into your argument, because it holds that Congress' action controls with respect to an important incident of warfare. You'd be more honest if you just said you think Youngstown was wrongly decided.

No, Youngstown was correctly decided. The CiC does not have power to seize the private property of citizens who are not in rebellion and Congress has an Article I power to enforce the 5th Amendment.

And because the CIC does have the power to direct intelligence gathering and Congress has no concurrent Article I power to do so, Youngstown is inapposite to the FISA issue.
 

Bart, the Youngstown opinion states that Congress has all sorts of powers that relate to the seizure of the steel mill, including not only the takings clause and the necessary and proper clause, but its powers to legislate regarding all sorts of economic activity, which is otherwise known as the commerce power.

Congress also has a foreign commerce power. It can clearly regulate telecommunications going in and out of the United States, as well as foreign telecommunications that have some sort of nexus with the United States. Indeed, this is uncontroversial-- you wouldn't argue, for instance, that Congress doesn't have the power to prohibit wire fraud or criminal conspiracies that occur in such communications.

So that can't be the distinguishing factor of Youngstown. What you want to say is that foreign surveillance is so uniquely a military activity that it falls outside of Congress' powers. But foreign surveillance is just like seizing the steel mills; Congress has several Article I powers (remember, it has all of those military powers that you claim are so limited as well) that permit it to regulate communications between foreign entities and the US. Under your analysis of Youngstown, that should be enough to constrain the President if Congress acts.
 

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