Balkinization   |
Balkinization
Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts More Tales from the "Unitary" Executive (or, What's Going On with the FISA Fix/Mess?)
|
Friday, August 03, 2007
More Tales from the "Unitary" Executive (or, What's Going On with the FISA Fix/Mess?)
Marty Lederman
Very hard to keep up, things are moving so fast. To the best of my very imperfect knowledge, here's the state of play:
Comments:
Bush also threatened to keep Congress in session if they don't get him a bill today.
(Thanks for turning comments back on : )
Bush also threatened to keep Congress in session
Is the Congress now also a part of the Unitary Executive?
Mark:
No, but see U.S. Constitution, Art. II, Sec. 3: ". . . he [Bush] may, on extraordinary Occasions, convene both Houses, or either of them . . ."
NAL, is that your own interesting speculation, or do you have a source?
I had heard that the White House wanted the AG, not the FISA court, to approve the surveillance. Is that still on the table?
Bush could in theory reconvene Congress until it does what he wants, but I would think that if you mess with enough senators' trips to Disney World, impeachment could become an option.
The grounds, Charles, would be abuse of his Constitutional prerogative for the purpose of bullying Congress into passing legislation it declines to enact.
Do you seriously think that would not be grounds for impeachment? Bush recalls Congress; Congress votes to adjourn; Bush recalls 'em the next day; they vote to adjourn; etc., etc., etc.?
No, I don't (but, then again, if a majority in the House thought the President jaywalking was sufficient grounds, there's nothing I could do about that). Since the first Congress, 27 special sessions have been convened. The last was called by President Truman in 1948.
I believe this is still too opaque (as hinted at in the post).
As Arne stated in a previous post, reducing FISA needs when foreign (endpoint and person) to foreign (endpoint and person) communication just happens to route through a US node/server/what have you does have a certain amount of sense in it, given the interconnectedness of today's communications web. This may include reasonable (please define in the bill, not up to DOJ) belief that the endpoints are foreign in nature. However, keeping audit/judicial functioning outside of DOJ, of whatever political stripe, is becoming a necessity in order to maintain a balance of security vs. liberty, especially under the already generous FISA rules and approval rate (approaching Six Sigma, I believe, which is rare in any government function). As to the political gamesmanship, so long as it is honestly reported, and the President aborts his own vacation to show his concern with what is happening, I much prefer politicians at each others throats than silently acquiescing to each other's positions.
And, as I stated in a previous post: I'm just grateful these Dems were not in charge during WWII -- can you imagine, Bart, the damage they would have done? They would have prevented Yamamoto from being killed because no warrants were issued in that case either!!!
How much "oversight" did Congress have over the broken Japanese codes during WWII? You people have no idea how to defend a country, do you?
I don't understand Charles. He "thanks" the posters for opening comments, and then proceeds to repeat the exact same partisan drivel that got comments closed on the previous posts. It's like a child not understanding why his toys keep getting taken away.
The general administration objection is apparently one of executive hubris -- refusal to accept the principle that a generalized FISA court order is required to authorize such surveillance.
Yet, according to what we know from press reports in Newsweek, the LA Times and the Washington Post, that was precisely the status quo before the FISA court ruled a few months ago rejecting such a generalized court order. Prior to that decision, the administration was willing to live with that status quo. I suspect that the court's objection was that it lacked juridiction for such an order, which this legislation would provide. However, the White House seems to have decided to make this a political issue rather than a pragmatic one.
And, as I stated in a previous post: I'm just grateful these Dems were not in charge during WWII -- can you imagine, Bart, the damage they would have done? They would have prevented Yamamoto from being killed because no warrants were issued in that case either!!!
How much "oversight" did Congress have over the broken Japanese codes during WWII? You people have no idea how to defend a country, do you? Charles, are you *trying* to get comments turned off again with this nonsense? Please stop.
It's like a child not understanding why his toys keep getting taken away.
# posted by Steve : 5:10 PM He knows exactly what he is doing.
Anderson:
I believe mine was a relevant counter-point to: "reducing FISA needs when foreign (endpoint and person) to foreign (endpoint and person) communication just happens to route through a US node/server/what have you does have a certain amount of sense in it, given the interconnectedness of today's communications web. This may include reasonable (please define in the bill, not up to DOJ) belief that the endpoints are foreign in nature. However, keeping audit/judicial functioning outside of DOJ, of whatever political stripe, is becoming a necessity in order to maintain a balance of security vs. liberty . . ."
Actually, Bartbuster, I would be glad to knock off early and we both take the next two days to recoup -- deal?
Fraud Guy:
As Arne stated in a previous post, reducing FISA needs when foreign (endpoint and person) to foreign (endpoint and person) communication just happens to route through a US node/server/what have you does have a certain amount of sense in it, given the interconnectedness of today's communications web. This may include reasonable (please define in the bill, not up to DOJ) belief that the endpoints are foreign in nature. I perhaps should have been more explicit. There is currently no need for a FISA court order when none of the parties to a communication is within the Unites States and the interception is done domestically: 50 USC § 1801(f)(2): (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18; It is only when the intercepted communication is "to or from" a person in the U.S. that FISA applies. The rub is that if you "target" all communications of a foreign party, you might pick up communications between them and someone in the U.S. CALEA interception equipment is generally "target"-oriented, and thus will pick up all communications of that target, regardless of the other party's location. To make sure you're getting only foreign-to-foreign (and foreign-to-foreign exclusively), you might need better filtering of the call setup than available with the CALEA equipment I'm familiar with. Of course, NSA might have different equipment; CALEA equipment was built specifically for U.S. CALEA (and Title III) compliance, not for FISA purposes. That all beign said, I don't think there's a reason that foreign-to-U.S. calls should be treated differently based on the locus of interception. Cheers,
Hey, all. I inadvertently left the comments on, and now I'm curious to see how it goes. Let's try to keep the comments strictly on-topic, so that they *actually inform* readers about relevant developments, arguments, and possible explanations of what's happening with the FISA stuff. (Sorry if that sounds snarky.)
Just a tip for those of you who would really like us to resume a regular comments section: Do not respond to comments that are intended to provoke. Simply *do not respond.* Period. Let them go. Thanks
Arne,
If there were a simple technical solution, such as the CALEA technology you mention, there would be no problem. However, from what we know that is not the case. As Orin Kerr's post here explains, and an LA Times story reports about the actual situation at hand, there is not an immediate factual answer to the question about whether the persons on both sides of a communication are inside the country or not. So it is not objectively known whether 1801(f)(2) applies. So the basic issue is what the procedure is for determining that fact -- who decides, under what oversight, rules, guidelines and minimization procedures. Congressional Democrats are insisting on a robust role for the FISA courts and oversight by Congress; the administration is insisting on more unilateral authority. Additionally, there are issues about what happens when it turns out that the intercepted calls do involve a U.S. person after all.
JaO:
If there were a simple technical solution, such as the CALEA technology you mention, there would be no problem. However, from what we know that is not the case. Sorry if I'm still not clear. Because of the nature of "targeting" in the CALEA environment, all calls to or from the subject of a warrant are subject to interception, and it's just your tough luck if your calls are monitored when you call that person (should have picked better "friends", I guess). Of necessity, both directions of a call are monitored (it would be ridiculous trying to figure out what was going on otherwise, kind of like eavesdroppping on someone's cell call in a restaurant). So CALEA-compliant equipment is designed to do that. But this differs from the FISA 50 USC § 1801(f)(2) subparagraph, which requires a court order if some international "target" is calling a person in the U.S. (and the snoop is done here) ... but not if they call someone else. Not a real big problem, because you can get a FISA court order for appropriate international "targets". But if you want a "free bite at the apple" on less suspicion than would get you a FISA court order, you'll have to be selective. But, as I said, the CALEA equipment is (usually, and for most of the stuff I've seen) not set up for that. (As an aside, it may be that some CALEA equipment may give the LEA more than they're entitled to; I explained a little of this is an e-mail to the profs while comments were off; one such example is that I could program a CALEA box to give me a stream of all traffic for a raw IP; this is generally used for "targets" with fixed, known IPs, but I could set it for a DHCP that gets reused and I'd get some other poor schmuck's data once the DHCP lease expires and gets reused, or I could set it to the Google IP, and get everyone's queries...) I'd note that minimisation procedures apply to information obtained under FISA court orders; but for stuff that doesn't need that court order, there are no such legally required procedures. If you happen to inadvertently catch a call to a domestic person and you don't have a court order, there's nothing saying what you should do with the intercept content. But you're on the hook for an illegal snoop. As Orin Kerr's post here explains, and an LA Times story reports about the actual situation at hand, there is not an immediate factual answer to the question about whether the persons on both sides of a communication are inside the country or not. So it is not objectively known whether 1801(f)(2) applies. There is a factual answer to that questions, of course. However, it may not be reasonably possible for the snoops to determine this (with 100% accuracym at least) in advance. Whether technical impossibilities ought to become "best effort" loopholes is a policy question. So the basic issue is what the procedure is for determining that fact -- who decides, under what oversight, rules, guidelines and minimization procedures. Congressional Democrats are insisting on a robust role for the FISA courts and oversight by Congress; the administration is insisting on more unilateral authority. Agreed. Additionally, there are issues about what happens when it turns out that the intercepted calls do involve a U.S. person after all. Yes. See above. FWIW, I understand that if for some reason LEAs discover they're listening to stuff they should not be listening to (ferinstance, the guy calls his lawyer), they're supposed to turn of the equipment (AFAIK). Don't have a cite for that tidbit, though. Cheers,
A POSSIBLE EXPLANATION FOR THE CONFUSING SECTION.
The new bill deals with new sections 105A and 105B. They cover the calls between foreigners that pass through the US. For calls that involve US person, the Attorney General must still file a request with the FISA court under the old rules, section 104. (50 USC 1804?) The Attorney General has 15 days to find a way to make that happen.
It seems to me that this is just another step toward the change from us being a Democracy to a Dictatorship. If the government can't control everyone's voice, how can you stop people from dissenting? If this path continues, I'm afraid that we'll be under martial law soon; all because of a threat that was always there... and the more that we try to 'deal' with it, the worse it gets. Its a child - attention thing. Don't let them know they got to you so they don't get the satisfaction of seeing the 'benefits' of their terror.
Post a Comment
|
Books by Balkinization Bloggers ![]() Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) ![]() Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |