Balkinization  

Friday, February 15, 2008

McConnell on FISA: The fox requests immunity for its previous guarding of the chicken coop

JB

Mike McConnell's call for immunity for telecom companies in today's Washington Post would be far more persuasive if we didn't recall why the issue arises in the first place. The Bush Administration repeatedly violated FISA and told telecom companies that it was ok to do so based on a crazy constitutional theory that the President couldn't be bound by the law.

Of course telecom companies will be less likely to cooperate in the future with an Administration whose legal advice has proven to be so unreliable. But giving them immunity whenever they recieve bad advice from the White House gives the White House no incentives to stay within the boundaries of the law. As I have pointed out before immunity provisions make it much easier for an untrustworthy White House to cover up its misconduct. In essence, the President wants legal assurances that nobody will have incentives to reveal what his subordinates did and what he asked the telecom companies to do. Retroactive immunity helps insure that these issues will never come to light in any court of law. After the experience of this Administration, do we really think this is a good idea?

Comments:

But giving them immunity whenever they recieve bad advice from the White House gives the White House no incentives to stay within the boundaries of the law.

Oversight of intelligence gathering is the job of Congress, not the ACLU filing frivolous suits on behalf of plaintiffs without standing.

Through its Intelligence Committees, Congress implicitly or expressly signed off on the TSP from the outset because 9/11 made it rather obvious that it was an exceedingly bad and dangerous idea for FISA to stop the NSA from intercepting international al Qaeda telecommunications routed in an out of this country.

Recent Senate and House passage of bills essentially gutting FISA indicates that a heavy majority of Congress agrees with its Intelligence Committees and the Executive.

There is no reason the telecoms should be harrassed and punished for agreeing with both the Executive and Congress to help their country win a war.

The fact that the House Dem leadership stopped this reform yesterday to hold a meaningless vote on a contempt resolution only shows the apparent contempt the Dem leadership has for our security.
 

So repeal the statutes that provide for a civil remedy.
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e.g., 50 USC 1810
 

Repeal 18 USC 2520 for good measure.
 

Just repeal the 4th amendment!
 

Bart;

Are you holding that the Courts have no role in overseeing activities of our intelligence services?
 

Through its Intelligence Committees, Congress implicitly or expressly signed off on the TSP from the outset...

<*sigh*>

here.

Incorrigible.

Cheers,
 

The fact that President Bush would veto a bill without retroactive immunity only shows the apparent contempt the president has for our security.
 

Oversight of intelligence gathering is the job of Congress, not the ACLU filing frivolous suits on behalf of plaintiffs without standing.

Bart, you might want to learn about what you are talking about before commenting. At least one of the suits is by a plaintiff who was told (inadvertently) by the government that he was subjected to surveillance under the program. And that person certainly DOES have standing.
 

Dilan:

Bart, you might want to learn about what you are talking about before commenting. At least one of the suits is by a plaintiff who was told (inadvertently) by the government that he was subjected to surveillance under the program. And that person certainly DOES have standing.

You don't understand. It's necessary for "Bart"'s 'argument' that the plaintiffs not have standing (despite all the evidence, and even moreso despite what everybody knows), so, of course they don't have standing. Even if they do. "Heads I win, tails you lose."

Who's going to argue with that?

Cheers,
 

NB: This is a comment on what Jack just posted, not a response to Bart, though I welcome information from anyone.

What gives the lie to the administration's wretched arguments is that the White House has no response (as best I can tell) to the bipartisan Specter/Whitehouse proposal to substitute the White House for the telecoms as defendant in the pending lawsuits. It would seat the legal exposure in a place appropriate to protecting the public interest (as would targeting OLC lawyers for authorizing torture) and would cost the telecoms nothing in damages and no more in legal costs than they'd bargained for to begin with.

I recall someone moaning about the proposal during a committee debate but nothing concrete. Has the White House seriously addressed it?
 

beau said...

Bart, Are you holding that the Courts have no role in overseeing activities of our intelligence services?

That is correct.

Foreign policy is primarily the purview of the Executive with enumerated exceptions for Congress. Article III does not provide the Courts any role in foreign policy.
 

nal said...

The fact that President Bush would veto a bill without retroactive immunity only shows the apparent contempt the president has for our security.

The telecoms are crucial to providing access to the NSA to protect our national security. Consequently, the largely frivolous law suits against the telecoms meant to eliminate that access harm national security.
 

dilan said...

BD: Oversight of intelligence gathering is the job of Congress, not the ACLU filing frivolous suits on behalf of plaintiffs without standing.

Bart, you might want to learn about what you are talking about before commenting. At least one of the suits is by a plaintiff who was told (inadvertently) by the government that he was subjected to surveillance under the program. And that person certainly DOES have standing.


I do not believe that ACLU represents the Oregon based al Qaeda front group to which you refer.
 

Baghdad, how long do you think it would take me to waterboard you into admitting you played a key role in the 9/11 attack?
 

occasional observer said...

What gives the lie to the administration's wretched arguments is that the White House has no response (as best I can tell) to the bipartisan Specter/Whitehouse proposal to substitute the White House for the telecoms as defendant in the pending lawsuits.

Why should you and I pay for ACLU's frivolous lawsuits any more than the telecoms?

Once again, the only proper constitutional venue of oversight of classified foreign intelligence gathering is the congressional intelligence committees.

There is not a chance in hell that the Supremes and nearly every other court are going to let ACLU troll through our most sensitive intelligence gathering programs. These are harassment suits, nothing more.
 

I don't want to chase off Bart but I really think he is offbased, and this is from someone who voted for W twice. There is a STATUTE that says the telecommunications companies cannot permit an eavesdrop w/o a warrant, and the government did not have a warrant when it spied on Americans for three years. That statute exists and it is not spin or rhetoric or judicial activism. And people whose conversations were listened in on have damages, and they are targeting the defendants (Verizon et al) who did the wrongdoing in violation of the statutes. Why does our security, going forward, have anything to do with whether Verizon violated the law and caused the plaintiffs damages BACK WHEN IT HAPPENED? i.e., why retroactive immunity?

Bart these enlarged, secretive powers of the executive will some day be in the hands of political opponents, keep in mind.

Now we know if we want to tell Bush that he sucks, the most effective way to do it is to call a friend in London and say "Bush sucks" because he will surely be listening in.
 

I do not believe that ACLU represents the Oregon based al Qaeda front group to which you refer.

Bart, you were wrong. Instead of babbling about the ACLU and "Al Qaeda front groups", be a man and admit it. One of the plaintiffs has standing even under the most restrictive theories.
 

There are a few "things" that make the administrations pleas appear tainted.
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There was no request for retroactive immunity until April 2007, but there were requests for modifications to FISA and other surveillance tools.
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Advocates dither between "there won't be any damages" to "there are billions of doallrs in claims."
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Even the Specter/Whitehouse proposal has Sepcter saying "the government can continue to assert state secret." That ought to be good enough to keep classified stuff out.
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Seriously, if civil suits are wrong headed, wehre is the serious call to repeal the statutes that provide a civil remedy?
 

beau:

Bart, Are you holding that the Courts have no role in overseeing activities of our intelligence services?

"Bart" doesn't get to "hold" anything, FWIW. But yes, "Bart" has consistently (and repeatedly ... one might even say ad nauseam) taken this stance. Of course, no one else agrees with him (not even the maladministration; they have not put forth any such argument in court).

Cheers,
 

Once again, the only proper constitutional venue of oversight of classified foreign intelligence gathering is the congressional intelligence committees.

Literalism run amok. Run! Hide!

Cheers,
 

abu hamza:

I don't want to chase off Bart...

Well, we want you to. Good luck and good hunting. The only way to get rid of him, though, is to ban him. That's what we found out at Glenn Greenwald's blog.

Cheers,
 

dilan said...

BD: I do not believe that ACLU represents the Oregon based al Qaeda front group to which you refer.

Bart, you were wrong. Instead of babbling about the ACLU and "Al Qaeda front groups", be a man and admit it. One of the plaintiffs has standing even under the most restrictive theories.


I was not referring to your al Qaeda front group, so I could not have been wrong about them.

I do not disagree with you. I have pointed out on several occasions here that your al Qaeda front group is the only plaintiff with any evidence of standing.

Of course, an al Qaeda front group is the last plaintiff who should have standing to sue the telecoms because they are exactly the kind of targets the TSP was designed to identify.
 

cboldt said...

Seriously, if civil suits are wrong headed, wehre is the serious call to repeal the statutes that provide a civil remedy?

These statutes should be limited to instances where the telecoms knowingly assisted the government in violating the 4th Amendment rights of the targets of government surveillance.

The 4th Amendment does not extend to surveillance targeting agents of foreign groups for intelligence purposes, so amending the statutes in this way would maintain a legal remedy to innocent citizens.
 

It seems to me congress can take a lesson from this fracas when it next has a nomination hearing for an AG and emerges doubtful of the candidate's independence, though it seems correct WH counsel likely has the president's most salient ear even when DoJ is issuing caveats from AG and olc on a preselected course of action. In sum, there were structural problems at the time the 'reassurances' were given, or the jawbone was wielded by the president.
 

But ANY civil suit creates a risk of exposing state secrets, and any suit against a telecom will make it leery of cooperating with orders, 4th amendment notwithstanding.
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If civil suits against telecoms for allegedly cooperating with warrantless orders to snoop on conversations where one side is in the US are per se "bad," based on putting good faith cooperation of telecoms at risk, and also introducing a risk of exposing secrets to terrorists, then wouldn't it be prudent to eliminate the statutory cause of action altogether?
 

These statutes should be limited to instances where the telecoms knowingly assisted the government in violating the 4th Amendment rights of the targets of government surveillance. - BDP

look here dumbass.

that's the allegation.

the telecoms did "knowingly assist the government in violating the fourth amendment rights" of AMERICANS.

you may disagree, but it's for the courts to decide.

not the malignant tumor that sits atop your neck.

An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover—

(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;

(b) punitive damages; and

(c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred.



Seems to me the court does have a role to play here.
 

Bart DePalma said...
Once again, the only proper constitutional venue of oversight of classified foreign intelligence gathering is the congressional intelligence committees.

That is not the case. The NSA room at AT&T in San Francisco was collecting everything, including all domestic phone, e-mail, and internet.
 

Bart, let me address your points in a civil tone:

Why should you and I pay for ACLU's frivolous lawsuits any more than the telecoms?

The concept of the private attorney general is well-entrenched. If there's been a cutback since Warth v. Seldin that approaches your precept, please update me. But good for you for not suggesting what Dick Cheney did on talk radio, that the plaintiffs are strike suiters out to make another bundle.

Once again, the only proper constitutional venue of oversight of classified foreign intelligence gathering is the congressional intelligence committees.

You forgot the FISA Court. Or did you? We know David Addington's view about that court. As for the intel committees, they've fallen down on the job. It's only because of the newspapers that they even began to function on the problem.

I don't see why the lawsuit would compromise intelligence. What's at issue is the legal basis for the data-gathering, not the data gathered. A court could cut things off before substance was aired or even trolled through. It strikes me that the White House is just trying to save its sorry ass. How hard is this to see?

There is not a chance in hell that the Supremes and nearly every other court are going to let ACLU troll through our most sensitive intelligence gathering programs. These are harassment suits, nothing more.

Well let the courts decide. If they shut the suits down, we can move to your preferred forum, this time with gusto. But I don't see why they should so rule. In fact I think the uncertainty is precisely why the suits have gotten as far as they have and why the White House is so scared. Just my guess, but not without a basis, and who can say otherwise?
 

Let us hope that the contempt vote on Miers and Bolton is a prelude to impeaching Mukasey.

He's the Attorney General of the United States, not of the President.

If he's not willing to enforce the laws, he should be impeached. If enforcing them angers his boss, let Bush fire him, like Nixon did.
 

Bart, Are you holding that the Courts have no role in overseeing activities of our intelligence services?

Bart:

That is correct.

Foreign policy is primarily the purview of the Executive with enumerated exceptions for Congress. Article III does not provide the Courts any role in foreign policy.


This issue was raised a few times in the early days of FISA. The courts in all cases held that FISA was not an unconstitutional intrusion by the courts into the realm of foreign policy. That is presumably why the Administration is not making this argument.
 

So how is this different from offering a suspect/witness immunity? Shouldn't immunity mean that the immunized party can give evidence without suffering?

If this is real immunity, why doesn't congress just immunize the telecoms to come before congress and tell them what happened?
 

*Sigh!* I know, I know, don't feed the troll, but this is just too ridiculous:

9/11 made it rather obvious that it was an exceedingly bad and dangerous idea for FISA to stop the NSA from intercepting international al Qaeda telecommunications

The Qwest case revealed that unrestrained, unlimited, no-oversight NSA wiretapping began, at the very minimum, seven months prior to 9-11. The NSA was not being prevented from doing anything and yet, the Bush Administration was still caught completely flat-footed!

What 9-11 demonstrated was incompetence, negligence and dereliction of duty by the Bush Administration. It demonstrated nothing about what the NSA should or should not have been able to do.
 

What's at issue is the legal basis for the data-gathering, not the data gathered
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The administration's argument in this regard is that disclosing the legal basis results in, or is similar to, disclosing methods and procedures for acquiring communications.
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The administration (with the help of the Republicans in Congress) aims to put policy decisions into the classified pigeonhole.
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They argue that if privacy statutes are to be believed at face value (or enforced by courts), the terrorists will gain an advantage.
 

-- The 4th Amendment does not extend to surveillance targeting agents of foreign groups for intelligence purposes, so amending the statutes in this way would maintain a legal remedy to innocent citizens. --

.

There is no need for the amendment you suggest, It is part of the statute already. Link repeated.

.

18 USC 1810

.

An aggrieved person, other than a foreign power or an agent of a foreign power ... shall have a cause of action ...

.

And still, the suits are going forward. The government doesn't want to have have the suit dismissed by asserting that they have labeled a plaintiff as a foreign power or agent of a foreign power. Litigating that element would itself disclose state secret.

.

So, I go back to my original (rhetorical) question. If civil suits are so risky to the people's safety, why isn't the administration making a case to eliminate the statutory cause of action altogether? Why isn't repeal of 50 USC 1810 part of FISA modernization?
 

-- the White House has no response (as best I can tell) to the bipartisan Specter/Whitehouse proposal to substitute the White House for the telecoms as defendant in the pending lawsuits. --

.

See Press Gaggle by Scott Stanzel for a recapitulation of old arguments, plus a relatively new one, "the companies become increasingly reluctant, out of a responsibility ... to their shareholders, to figure out if they want to be subject to these billion-dollar class-action lawsuits."

.

The generic response, "the private sector might be unwilling to cooperate with lawful government requests in the future without unnecessary court involvement and protracted litigation," addresses both the Specter/Whitehouse substitution proposal, and Feinstein's change in venue proposal (to litigate in the near-total secrecy of the FISC).
 

This comment has been removed by the author.
 

molly fuller & anne mccarten-gibbs said...

These statutes should be limited to instances where the telecoms knowingly assisted the government in violating the 4th Amendment rights of the targets of government surveillance. - BDP

look here dumbass.

that's the allegation.

the telecoms did "knowingly assist the government in violating the fourth amendment rights" of AMERICANS.


Pejorative allegations without evidence are slanders, not valid legal claims.

ACLU & Co do not allege that they have a scintilla of evidence to back up their allegations.

In contrast, over twenty members of Congress have been briefed on and shown the TSP in action. All have said that it is not targeting Americans.

If you wish to join rich in his baseless conspiracy theories, that is your privilege. However, do not even pretend that baseless conspiracy theories constitute valid legal claims.
 

occasional observer said...

Bart, let me address your points in a civil tone:

You always have.

BD: Why should you and I pay for ACLU's frivolous lawsuits any more than the telecoms?

The concept of the private attorney general is well-entrenched. If there's been a cutback since Warth v. Seldin that approaches your precept, please update me.


The Attorney General does not have the power of oversight over foreign intelligence gathering so there is no reason to believe that a private AG has any more power to do so.

But good for you for not suggesting what Dick Cheney did on talk radio, that the plaintiffs are strike suiters out to make another bundle.

Actually, settlements of ACLU's legal shakedowns often include the defendant paying ACLU's fees and costs to make them go away. Whether that constitutes "making a bundle" I will leave to others. It certainly constitutes a penalty to the folks paying the fees and costs.

BD: Once again, the only proper constitutional venue of oversight of classified foreign intelligence gathering is the congressional intelligence committees.

You forgot the FISA Court. Or did you?


Not at all.

I believe that you have read my many posts here arguing that Article I does not provide Congress with the authority to direct foreign intelligence gathering and Article III does not grant the courts any authority whatsoever in the realm of foreign policy. To the extent that Article I grants Congress the power of oversight over the Executive's exercise of his foreign policy powers, Congress may not constitutionally delegate its authority to the courts.

Thus, the FISA Court, like every other Article III court, has no constitutional power to oversee foreign intelligence gathering.

In order to avoid an ongoing fight with Congress, the President appears to be allowing the Congress to vacate its oversight powers to the FISA Court. However, this is an arrangement of political convenience rather than any arrangement sanctioned by the Constitution.

I don't see why the lawsuit would compromise intelligence. What's at issue is the legal basis for the data-gathering, not the data gathered.

The very existence, means and methods and products of foreign intelligence gathering are all properly classified. The enemy should be left to guess what you are up to. I believe every court which has applied the state secrets privilege acknowledges this.

BD: There is not a chance in hell that the Supremes and nearly every other court are going to let ACLU troll through our most sensitive intelligence gathering programs. These are harassment suits, nothing more.

Well let the courts decide. If they shut the suits down, we can move to your preferred forum, this time with gusto. But I don't see why they should so rule. In fact I think the uncertainty is precisely why the suits have gotten as far as they have and why the White House is so scared. Just my guess, but not without a basis, and who can say otherwise?


No court has ruled in favor of allowing discovery of the TSP. Indeed, the California Northern District, under which I believe these cases are being consolidated, has issued a very well reasoned opinion which will allow the plaintiffs to ask for discovery and then laid out all the precedent why those requests will be denied under the state secrets privilege.

The ACLU can read the tea leaves. That is why they asked Judge Taylor over in the Sixth Circuit to grant them summary judgment on the evidence in the public domain prior to here case being sent out west. In a very questionable opinion, Judge Taylor did just that and was promptly reversed by the 6th Circuit.

The point is that these legal proceedings and the costs incurred can run on for years, but the result is pretty much preordained. The only purpose for these suits is pure harassment to make the telecoms pay for cooperating in foreign intelligence gathering and to stop cooperating in the future.

If al Qaeda was filing these suits in an attempt to keep the telecoms from assisting the United States in spying on them, it would be called lawfare.

If ACLU is doing it for the same reasons as al Qaeda, should it still be called lawfare? There is a good argument that it should and it should be stopped now.
 

rich said...

*Sigh!* I know, I know, don't feed the troll, but this is just too ridiculous:

BD: 9/11 made it rather obvious that it was an exceedingly bad and dangerous idea for FISA to stop the NSA from intercepting international al Qaeda telecommunications

The Qwest case revealed that unrestrained, unlimited, no-oversight NSA wiretapping began, at the very minimum, seven months prior to 9-11. The NSA was not being prevented from doing anything and yet, the Bush Administration was still caught completely flat-footed!


Try reading for content.

1) The NSA intelligence gathering of phone records is not the same as the TSP electronic surveillance of live enemy telecommunications.

2) The program was set up under the Clinton Administration and implemented in the first month of the Bush Administration. After 7 years of al Qaeda attacks on the US, better late than never for the Clinton Administration.
 

cboldt said...

BD: -- The 4th Amendment does not extend to surveillance targeting agents of foreign groups for intelligence purposes, so amending the statutes in this way would maintain a legal remedy to innocent citizens. --

There is no need for the amendment you suggest, It is part of the statute already. Link repeated. 18 USC 1810: An aggrieved person, other than a foreign power or an agent of a foreign power ... shall have a cause of action ...

And still, the suits are going forward.


OK, you have a very good point here about the continuing ease of bringing frivolous suits even when the law substantively limits their scope.

Maybe Congress also needs to add a loser pays provision which would make both the attorneys and the parties for the losing side jointly and severally liable for the winner's legal fees and costs. I would dearly love to see ACLU and these bad faith plaintiffs bankrupted by having to pay for the telecom's fees and costs for filing these frivolous suits.

Any chance in hell the Dems would shaft their plaintiffs attorney sponsors in this manner?
 

The only purpose for these suits is pure harassment to make the telecoms pay for cooperating in foreign intelligence gathering and to stop cooperating in the future.

Bart, you do realize that if the administration had a warrant that the telecoms would have no choice but to comply, don't you?

There is no risk in the telecoms not cooperating. There is only a risk in the telecoms not cooperating if the Executive refuses to provide a warrant. And guess what. That's not a risk, that's due process. That's how things are supposed to work in this country.
 

I should "read for content" eh? Okay, Mr Nacchio's lawyer said:

Mr. Nacchio made inquiry as to whether a warrant or other legal process had been secured in support of that request. When he learned that no such authority had been granted and that there was a disinclination on the part of the authorities to use any legal process,...

It's an obvious truism that once a party has lied and shown that he is disinclined to utilize legal measures, then it is entirely reasonable to presume that everything he then says is probably just another lie. Does that justify our constructing "conspiracy theories" to explain the known facts of the case? Yup, sure does.
 

In contrast, over twenty members of Congress have been briefed on and shown the TSP in action. All have said that it is not targeting Americans.

As Bart would put it ::Sigh!:: You seem to be forgetting all about the Comey/Ashcroft revolt over some sort of program of warrentless surveillance they were not willing to countenance. The TSP is the scaled-back (but still warrantless) program that they were willing to sign onto. We still do not know what was going on before the Comey/Ashcroft revolt other than (1) it was much more extensive and (2) it was discontinued in favor of the TSP.

Discontinued means revealing what happened will not jeopardize any ongoing program. The fact that Ashcroft was ready to resign over it strongly implies that it was extremely illegal and intrusive. And, no, we do not know whether this pre-TSP targeted Americans without a warrant or not. The lawsuits are about finding out.
 

I believe that you have read my many posts here arguing that Article I does not provide Congress with the authority to direct foreign intelligence gathering and Article III does not grant the courts any authority whatsoever in the realm of foreign policy. To the extent that Article I grants Congress the power of oversight over the Executive's exercise of his foreign policy powers, Congress may not constitutionally delegate its authority to the courts.

Thus, the FISA Court, like every other Article III court, has no constitutional power to oversee foreign intelligence gathering.


OK, for the early FISA cases holding that FISA is not an unconstitutional intrusion by the courts on matters of foreign policy.

First, Truong, which you have cited many times does, indeed, decline to impose a warrant requirement in the absence of a statute. However, it a footnote noting that FISA had been passed sometime after the warrantless surveillance at issue and saying:

While the Act suggests that it is possible for the executive branch to conduct at least some types of foreign intelligence surveillance while being subject to a warrant requirement, the complexity of the statute also suggests that the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President."

Yes, I know, dictum. But it does make a distinction between the constitutionality of imposing a warrant requirement in the absence of a statute and the constitutionality of a statutory requirement.

In the early FISA case of US v. Falvey 540 F.Supp 1306 (EDNY 1982) the Defendant challenged the consitutionality of FISA under Articles I and III as well as the VI, V and VI Amendments. Alas, the decision does not address the Article I and III challenges, so I do not know what they were.

In US v. Megahey 553 F.Supp. 1180 (EDNY 1982), a case involving gun runners for the IRA, the defendants challenged the international terrorism provisions of FISA as unconstitutionally instruding the courts into foreign policy. Judge Sifton held:

Assuming the validity of defendants' assertion that a statute that called upon the judiciary to determine foreign policy woould be deemed unconstitutinal under the separation of powers doctrine, such concerns are not raised by this Act. . . [Discussion of the FISA definition of international terrorism]. These terms hardly call for delicate or sensitive political determinations fraught with foreign policy implications. Rather, they call for findings of objective fact not unlike those made in courtrooms every day.

Judge Sifton also found that the courts were not being unconstitutionally called on to make "political" decisions.
 

And finally, Megahey was upheld on appeal in the case of US v. Duggan 743 F.ed 59 (2nd Cir. 1984). The court held:

In any event, the FISA Court would not have been required to determine what is necessary to teh conduct of the nation's foreign affairs. Rather the federal offical's applicaton must include a certificaty by a member of the executive branch that the information sought is foreign intelligence information -- which could of course include information necessary to the conduct of the nation's foreign affairs -- and that the purpose of that surveillance is to obtain that type of information. [statutory cite]. But the FISA Judge's responsibility is not to make findings on this question. If the target of the requested surveillance is a United States person, the judge must merely find that the certification is not "clearly erroneous" on the basis of the stateemtns made in the application, id. Section 1805(a)(5); and if the target is not a United States person, the judge need only find that the application contains all statements and certifications required by Section 1804, id, Section 1805(a)(5). We agree with Judge Sifton that such limited review by the FISA court does not unduly inject the courts into the making of foreign policy.

It is because of these cases, and not "to avoid an ongoing fight with Congress" that has refrained from challenging the FISA as an unconstitutional intrusion of the courts into matters of foreign policy.

(Apologies for the length of the quotes: these cases are not on FindLaw, so I could not provide links).
 

The opening post said,
>>>>> The Bush Administration repeatedly violated FISA and told telecom companies that it was ok to do so based on a crazy constitutional theory that the President couldn't be bound by the law. <<<<<

Why were the telecom companies dependent on the Bush Administration for legal advice? Don't the telecom companies have their own attorneys?

And how is retroactive immunity going to help intelligence gathering in the future? There is no guarantee that retroactive immunity will be granted again.

If these telecom companies cooperated without warrants, then these companies need to be exposed for the fact that they did not hold the interests of their customers first.

And maybe the term "amnesty" could be used here as a substitute for the term "retroactive immunity." Though "amnesty" is generally just a term in criminal law, IMO it should be applicable to civil law as well.
 

tim said...

Bart, you do realize that if the administration had a warrant that the telecoms would have no choice but to comply, don't you?

Of course. Tim, you too realize that it is impossible under the old FISA to get a warrant to surveil captured al Qaeda telephone numbers because there is no individualized probably cause that the user of that number is actually a terrorist.

This is why large majorities of both houses of a Dem Congress are voting for "reforms" which essentially gutting FISA's ill conceived warrant provision.
 

enlightened layperson said...

BD: In contrast, over twenty members of Congress have been briefed on and shown the TSP in action. All have said that it is not targeting Americans.

You seem to be forgetting all about the Comey/Ashcroft revolt over some sort of program of warrentless surveillance they were not willing to countenance.


There is no allegation that the TSP was targeting innocent Americans prior to the so called "revolt."

BD: I believe that you have read my many posts here arguing that Article I does not provide Congress with the authority to direct foreign intelligence gathering and Article III does not grant the courts any authority whatsoever in the realm of foreign policy. To the extent that Article I grants Congress the power of oversight over the Executive's exercise of his foreign policy powers, Congress may not constitutionally delegate its authority to the courts. Thus, the FISA Court, like every other Article III court, has no constitutional power to oversee foreign intelligence gathering.

OK, for the early FISA cases holding that FISA is not an unconstitutional intrusion by the courts on matters of foreign policy.

First, Truong, which you have cited many times does, indeed, decline to impose a warrant requirement in the absence of a statute. However, it a footnote noting that FISA had been passed sometime after the warrantless surveillance at issue and saying:

While the Act suggests that it is possible for the executive branch to conduct at least some types of foreign intelligence surveillance while being subject to a warrant requirement, the complexity of the statute also suggests that the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President."

Yes, I know, dictum. But it does make a distinction between the constitutionality of imposing a warrant requirement in the absence of a statute and the constitutionality of a statutory requirement.


The dictum speaks of the kind of political accommodation which is going on right now. There is no discussion here about whether Congress has the Article I power to enforce an warrant requirement.

In the early FISA case of US v. Falvey 540 F.Supp 1306 (EDNY 1982) the Defendant challenged the consitutionality of FISA under Articles I and III as well as the VI, V and VI Amendments. Alas, the decision does not address the Article I and III challenges, so I do not know what they were.

Then the case is not addressing my argument, which is that Articles I and III do not grant the power to direct foreign intelligence gathering.. So far as I know from all the briefs filed on this issue, there is no court precedent taking on my power argument.
 

Tim, you too realize that it is impossible under the old FISA to get a warrant to surveil captured al Qaeda telephone numbers because there is no individualized probably cause that the user of that number is actually a terrorist.

Stated in a slightly more straight-forward manner (for those that are not so adept at statistics): "They were probably not surveilling al Qadea."

Cheers,
 

Then the case is not addressing my argument, which is that Articles I and III do not grant the power to direct foreign intelligence gathering.. So far as I know from all the briefs filed on this issue, there is no court precedent taking on my power argument.

Yes, Bart, care to address the other two cases, I cited, the ones expressly saying that FISA (or at least the international terrorism portions of FISA) are not an unconstitutional intrusion by the courts into the executive domain of foreign policy?
 

Cboldt: Here's what I make of these responses, which I don't assume you to be standing behind:

What's at issue is the legal basis for the data-gathering, not the data gathered.

The administration's argument in this regard is that disclosing the legal basis results in, or is similar to, disclosing methods and procedures for acquiring communications.


Any two things are "similar," so this part of the response is empty. As for "resulting in," we are asked to believe that threats to the national security would be increased by everyone's learning that US government officials broke the law. Excuse me if all I can infer is that is that in their minds the national security agenda depends on lawbreaking – which is actually not so far a stretch. Excuse me further if it calls to mind the Nazi rationale for keeping their genocidal crimes secret, something they did rather successfully.

-- the White House has no response (as best I can tell) to the bipartisan Specter/Whitehouse proposal to substitute the White House for the telecoms as defendant in the pending lawsuits. --

See Press Gaggle by Scott Stanzel for a recapitulation of old arguments, plus a relatively new one, "the companies become increasingly reluctant, out of a responsibility ... to their shareholders, to figure out if they want to be subject to these billion-dollar class-action lawsuits."

The generic response, "the private sector might be unwilling to cooperate with lawful government requests in the future without unnecessary court involvement and protracted litigation," addresses both the Specter/Whitehouse substitution proposal, and Feinstein's change in venue proposal (to litigate in the near-total secrecy of the FISC).


This is surely White House-driven. If Congress exculpated the telecoms and set the courts free to probe government wrongdoing, why should that hurt their bottom line? And don't customer relations count along with investor relations? As it is, rumors are aswirl about what they've done. Customers put no trust in them. An airing would give them all they need, including a basis for cooperation with the NSA going forward basis, without customer (or investor) suspicions of illegality.

I think talk like this, if any, from the business community, is emitted only because it's part of a deal with the executive branch: "We'll get you immunity but hold out against substitution."

That deal would fall apart if the House holds fast. At that point the telecoms would welcome substitution and let the administration rot in legal hell.
 

Bart said:

The Attorney General does not have the power of oversight over foreign intelligence gathering so there is no reason to believe that a private AG has any more power to do so.

I'll take your point further: The current AG doesn't consider it within his province to vet OLC memos on which government officials have relied to whosever detriment. The question is, Where does that leave us? (I think I know your answer, so you needn't give it.)

Actually, settlements of ACLU's legal shakedowns often include the defendant paying ACLU's fees and costs to make them go away. Whether that constitutes "making a bundle" I will leave to others. It certainly constitutes a penalty to the folks paying the fees and costs.

I think it's called being made whole, in this case to the tune of punk wages.

I believe that you have read my many posts here arguing that Article I does not provide Congress with the authority to direct foreign intelligence gathering and Article III does not grant the courts any authority whatsoever in the realm of foreign policy. To the extent that Article I grants Congress the power of oversight over the Executive's exercise of his foreign policy powers, Congress may not constitutionally delegate its authority to the courts.

Well, you've made yourself clear again. I don't know what you mean by "direct." How about "monitor"? Can you do "monitor"? And what's this about "foreign"? The problem is where foreign becomes "domestic." You'd throw the fourth amendment baby out with concerns about "direction" of foreign intelligence gathering. Foreign intelligence is an important thing. (Not that I've been peeing in my pants since midnight.) It's not everything.

And it's the "something" remaining that's for the courts. It's strange that courts have Marbury (right?) but none over a realm of governmental activities that implicate constitutional rights.

This carve-out may be the secret belief of the NSA crowd. I imagine it is for many of them. But tell me of another society whose secret police was its biggest secret and I'll grant the coherence of this position. Right now it sounds like sorry-ass cynicism. A secret police that can't stand the light of day is a pathetic bunch that should be sent out in the woods to play paint ball weekends.
 

-- we are asked to believe that threats to the national security would be increased by everyone's learning that US government officials broke the law. --

.

Sort of. But the actors are diligent is asserting "lawful orders" and "orders under color of law" (See the Senate Select Committee on Intelligence Report that accompanied sending S.2248 to the floor of the Senate).

.

My take on the stretching of the word "lawful" is literally that the words of privacy law are meant to be misleading -- terrorists, citizens and subjects alike -- because if the people know what the government is doing, then so will the terrorists.

.

Meanwhile, the snoopers honestly believe that as long as they utter "foreign intelligence information," any snoop is under an unchecked Article II power.
 

At that point the telecoms would welcome substitution and let the administration rot in legal hell.

.

I think the telecoms enjoy the revenue that accompanies cooperation with the government. So, maybe a little bit of legal hell, but not too much.

.

"Privacy" is a roughly empty promise, intended to comfort and mollify gullible customers. They only share information upon lawful orders -- all orders are lawful.

.

It's a symbiotic relationship.

.

But yeah, if the telecoms can employ fewer lawyers to file paperwork in response to uppity citizen lawsuits, I'm sure they'd jump at the opportunity.
 

cboldt:

I didn't mean to overstate the matter. I would put it this way: Some in the telecom industry would breathe a sigh of relief if liberal hawk Democrats replaced the cowboys now in charge; but by and large they all love the surveillance state.

Your demurral brings to mind a money question I've had that you may be able to help me on.

I can't imagine that FISA's "prevailing rate" makes facilitation of surveillance a profit center. Instead I've assumed the telecoms' "spirit of cooperation" traces to their "urge to merge" and thirst for government contracts (the recalcitrant Qwest being the exception that proves the rule). That is, cooperation maintains goodwill with the powers that be. (This is why I can't imagine a suit against the government would deter them from cooperating in the future.)

But do you know if surveillance activity serves other corporate ends, e.g., accumulates data that can be sold off commercially? I've heard this but can't get a clear picture of how.
 

enlightened layperson said...

BD: Then the case is not addressing my argument, which is that Articles I and III do not grant the power to direct foreign intelligence gathering.. So far as I know from all the briefs filed on this issue, there is no court precedent taking on my power argument.

Yes, Bart, care to address the other two cases, I cited, the ones expressly saying that FISA (or at least the international terrorism portions of FISA) are not an unconstitutional intrusion by the courts into the executive domain of foreign policy?


Once again, the issue of whether Articles I or III authorize Congress or the Courts to direct foreign intelligence gathering by requiring warrants was not before the courts. The 2d Circuit observed:

Defendants contend that FISA is unconstitutional principally on the grounds that (1) it is so broad as to deprive certain persons of due process of law, (2) it violates the probable cause requirement of the Fourth Amendment, and (3) it deprives nonresident aliens of the equal protection of the law. We find no merit in these contentions.

Indeed, there is no reason my issue should come before the court since the Executive had obtained a FISA warrant in this case and the government was obviously not challenging the authority of the court to issue the warrant.

The portion of the opinion which you quoted addressed whether the FISA warrant issued to the government was void under the political question doctrine. The 2d Circuit held that the FISA court was not involving itself in politics because issuing warrants was something courts commonly did. This was not a comment on whether Articles I or III granted the FISA court the power to issue such warrants in the first instance.
 

The portion of the opinion which you quoted addressed whether the FISA warrant issued to the government was void under the political question doctrine. The 2d Circuit held that the FISA court was not involving itself in politics because issuing warrants was something courts commonly did.

Well, not entirely. The court also held that the courts were not unconstitutionally intruding on matters of foreign policy by issuing warrants to wiretap international terrorists, as defined by FISA. It held that FISA gave a straightforward definition of international terrorism that was well within the competence of the courts to judge.

So far as I know from all the briefs filed on this issue, there is no court precedent taking on my power argument.

That's because no one has ever raised these issues with the courts. You are right, of course, that a criminal defendant has no incentive to raise these issues, so it is understandable that no one ever raised them pre-GWB.

But the fact remains that GWB has not raised these issues either, and not for any lack of opportunity. Instead of seeking to dismiss lawsuits for lack of standing, the Administration could easily have sought to dismiss on the grounds that FISA was unconstitutional. You yourself have admitted that the group that accidentally received evidence it was wiretapped does have standing. Why doesn't the Administration make this a test case on the constitutionality of FISA, rather than go out of its way to avoid the issue?
 

That is, cooperation maintains goodwill with the powers that be.

.

Plus it's mandatory under the law. See CALEA, warrants, compulsion under dint of contempt, etc.

.

To the question of "profit center," my hunch is that whatever the extent of cooperation, it can't harm the shareholders. "Prevailing rate," in aggregate, has to at least preserve ROI.

.

I view the major telecoms as quasi governmental companies. Their rates are regulated, they answer to shareholders for P&L, and in matters that touch on "privacy vs. the government," their cooperation with the government is so extensive that there isn't a practical way to separate their "snooping" action from government "snooping" action. "All orders are lawful." Let the courts/Congress sort it out, would be my attitude, if I was in their shoes.
 

enlightened layperson said...

But the fact remains that GWB has not raised these issues either...

DOJ raised the constitutional argument in its White paper and I believe in court filings. However, Justice is downplaying the argument because they do not want to lose FISA entirely. DOJ frequently uses FISA warrants in lieu of standard warrants to gather criminal evidence in cases just like the ones you cited. Thus, DOJ walks a tightrope here.
 

To the question of "profit center," my hunch is that whatever the extent of cooperation, it can't harm the shareholders. "Prevailing rate," in aggregate, has to at least preserve ROI.

This is an eye-opening comment. The right to a fair return is a linchpin of public utility law. An inadequate rate structure is seen as a 5th amendment taking. The concept does not apply in unregulated activities.

Put differently, spying is apparently part of the telecoms' public service function.

To deregulate this function from a civil liberties standpoint for the sake of the national security state is the equivalent of deregulating nuclear power so it can make more bomb fuel. Yet that's the argument that's going on.

Incredible. But I see no fundamental disagreement between us.
 

Bart,

The administration is "downplaying" the constitutionality of FISA because they "like it a little bit" (my words). First, that would be a violation of the executive's oath of office. Second, how would the judge miss it? That would be by far the easiest means for a judge to determine some of these cases and is it would resolve a great number of issues.

That argument doesn't pass the laugh or smell test and I can't believe that you actually think there is merit to it.
 

I don't think that claims that the DoJ

do not want to lose FISA entirely.

and

frequently uses FISA warrants in lieu of standard warrants

can be considered serious arguments. How would a fairly junior lawyer from Colorado know these things? Perhaps he's channeling Mukasey and speaking ex cathedra. If so, that would be interesting.

Otherwise, the assertions are merely his opinion, and of no consequence.
 

mike said...

Bart, The administration is "downplaying" the constitutionality of FISA because they "like it a little bit" (my words). First, that would be a violation of the executive's oath of office.

A reasonable argument can be made that the FISC can issue 4th Amendment warrants at the request of the Executive for gathering criminal evidence, but that Congress and the FISC do not have the power to require warrants for the gathering of foreign intelligence which does not fall under the 4th Amendment.

You civil libertarians are barking up the wrong tree worrying about foreign intelligence gathering when you have good cause to criticize the FISC's rubber stamp issuance of warrants for the gathering of criminal evidence against Americans. Real life Americans are subject to real life criminal punishment through evidence gathered under warrants which do not appear to meet the standards of standard 4th Amendment warrants.
 

c2h50h said...

BD: I don't think that claims that the DoJ...do not want to lose FISA entirely...and frequently uses FISA warrants in lieu of standard warrants

How would a fairly junior lawyer from Colorado know these things?

A reasonably intelligent lay person who is willing to put in the time reading the law rather than Daily Kos or the NYT can know these things. Enlightened Layperson does some very nice research for his posts here.

The dirty secret of law is that lawyers are not the only folks who can read the law and make common sense arguments. Indeed, it is expected that the average citizen is supposed to be able to read the law and know what is expected of them.

If you disagree with my arguments on a legal rather than a partisan basis, make a legal counter argument rather than the usual ad hominem attacks which substitute for argument with far too many posters.
 

Bart,

All I asked was how you got the insight into the inner workings of a secret court and the motivations of the upper levels of the DoJ.

So your final answer is that pulled it out of an orifice in your body?

OK, but your argument would have been stronger had you actually been able to give an authority other than your own intuition.
 

c2h50h:

There is a great deal of information in the public domain about the workings of the FISC. Go search for FISA in the legal internet data bases and google various combinations of FISA.

You will learn a great deal.
 

Bart,

Sending me off on a wild goose chase? Thanks, but no thanks.

If you've got evidence, cite it. If you don't, say nothing.
 

I have noted in the past that the Dem left does not have a governing majority because they ran center right candidates in Red districts and states to gain the majority. The recent FISA reform bill votes are a perfect illustration of this fact of life :

The bill passed the Senate 68 to 29, with 19 Democrats voting aye. They included Intelligence Committee Chairman Jay Rockefeller and three senators who defeated Republican incumbents in the 2006 Democratic takeover of Congress: Claire McCaskill of Missouri, Jim Webb of Virginia and Sheldon Whitehouse of Rhode Island.

That opened the door for Pelosi to pass the bill with minority Democratic support. A Jan. 28 letter to the speaker signed by 21 House Blue Dogs (moderate Democrats) urged passage of Rockefeller's bill containing immunity. Democrats supporting it could exceed 40 in a House vote, easy enough for passage.


However, rather than letting the functional center right majority in Congress vote, the Dem left leadership refused to submit the Senate FISA reform bill to a vote. Now this may be an ideological hostility to FISA reform or democracy itself, but it is also instructive to follow the money:

Big money is involved. Amanda Carpenter, a Townhall.com columnist, has prepared a spreadsheet showing that 66 trial lawyers representing plaintiffs in the telecommunications suits have contributed $1.5 million to Democratic senators and causes. Of the 29 Democratic senators who voted against the FISA bill last Tuesday, 24 took money from the trial lawyers (as did two absent senators, Hillary Clinton and Barack Obama). Eric A. Isaacson of San Diego, one of the telecommunications plaintiff's lawyers, contributed to the recent unsuccessful presidential campaign of Sen. Chris Dodd, who led the Senate fight against the bill containing immunity.

And that money seems to be flowing all one way:

Of course, people will claim that the Republicans supported telecom immunity for the same reasons -- for the contributions. Unfortunately, two arguments work against that. The Senate bill passed with bipartisan support, with Jay Rockefeller (D-WV) leading the way for immunity. Second, the telecom industry contributes almost equally to both parties. Open Secrets shows that 53% of all 2008 contributions from the telecoms go to Republicans, and 47% to Democrats.

In contrast, lawyers contribute a much larger amount of money overall, and direct much more of it to the Democrats. While the telecoms only have sent $3.1 million in overall contributions anywhere, lawyers have already contributed over $82 million. Just in their PAC funding, lawyers have spend almost twice as much as the telecoms, $6.1 million. Over 77% of that money went to Democrats.


Whether the Dem left congressional leadership is simply grossly negligent in blinding the NSA to al Qaeda telecommunications and/or is simply corrupt, the picture is not pretty.
 

Of course, people will claim that the Republicans supported telecom immunity for the same reasons -- for the contributions. Unfortunately, two arguments work against that. The Senate bill passed with bipartisan support, with Jay Rockefeller (D-WV) leading the way for immunity. Second, the telecom industry contributes almost equally to both parties. Open Secrets shows that 53% of all 2008 contributions from the telecoms go to Republicans, and 47% to Democrats."

First, you final sentence clearly contradicts your idea that the money is flowing all one way.

Second, please provide quotes from anyone who is making the argument that only Republicans are receiving telecom funds. That is an enormous strawman. The question is not whether Republicans are receiving more funds, the question is whether telecoms are outspending trial lawyers on the issue.

Your post is replete with straw men. The fact of the matter is that Democrats/liberals/progressives are MORE pissed at the Democrats than Republicans in regards to this issue. No one expected Republicans to actually buck their Stepford-wife voting trend. It was not unreasonable for Democrats to expect the Democrats in Congress to honor the Constitution and grow a spine.

The fact remains is that telco immunity has nothing to do with our security and everything to do with CYA for the admin and a quid pro quo from a major political contributor, regardless of whether such contribution went to Democrats or Republicans.
 

In addition, your article is conflating (accidentally I am sure), total campaign contributions with contributions related to telco immunity in particular, to say nothing of the fact that I am more than a little bit skeptical of the notion that huge telco companies have only contributed $3.1 million.

You need to try a bit harder...
 

It appears that there are not even four votes on the Supreme Court who think ACLU has a case against the telecoms.

In ACLU v. NSA, Judge Anna Diggs Taylor granted a very questionable summary judgment to ACLU based upon newspaper stories and public statements by Executive officials, holding not only that the plaintiffs had standing, but that the TSP (about which she had no discovery) violated FISA.

The 6th Circuit promptly reversed Judge Taylor, finding that the plaintiffs had not proven standing.

The Supremes just denied cert to the ACLU appeal from the 6th Circuit, meaning that even the four liberals on the Court were not buying ACLU's argument.
 

Even ACLU knows these cases will fail.

Steven R. Shapiro, Legal Director of the ACLU:

"Although we are deeply disappointed with the Supreme Court’s refusal to review this case, it is worth noting that today’s action says nothing about the case’s merits and does not suggest in any way an endorsement of the lower court’s decision. The court’s unwillingness to act makes it even more important that Congress insist on legislative safeguards that will protect civil liberties without jeopardizing national security."
 

"The Supremes just denied cert to the ACLU appeal from the 6th Circuit, meaning that even the four liberals on the Court were not buying ACLU's argument."

As a purported attoney, you know that denial of cert means nothing of the sort.
 

As a purported attoney, you know that denial of cert means nothing of the sort.

# posted by Mike : 2:47 PM


Actually, I suspect he doesn't.
 

Mike:

The liberals on the Court do not believe in waiting for a conflict in the lower courts like the conservatives, so I do not see a procedural reason for the liberals declining to take the case. The denial appears to have been on substantive grounds.

Either some or all of the four liberal justices necessary to grant cert are not buying ACLU's argument or they are avoiding having the five conservatives shut down this circus by giving a controlling ruling on standing and the state secrets privilege.

The former possibility is not at all unlikely because no court except for Taylor's has bought ACLU's arguments thus far.

Congress needs to do what the Supremes declined to do and shut this down.
 

How about because this particular case doesn't provide an adequate test case in that it does not get to the merits of the positions? Rather, it is a more "superficial" decision given the reliance on the gov'ts public statements. I think the Court would prefer to see a case that is more fleshed out, with both sides raising their positions and deciding accordingly, rather than issuing whether summary judgment was granted appropriately. Accepting this case would do little in terms of precedential effect.

In either event, the denial of cert cannot be used to read anything into the arguments. It means only that the Court has denied review.
 

Mike:

How about because this particular case doesn't provide an adequate test case in that it does not get to the merits of the positions? Rather, it is a more "superficial" decision given the reliance on the gov'ts public statements. I think the Court would prefer to see a case that is more fleshed out, with both sides raising their positions and deciding accordingly, rather than issuing whether summary judgment was granted appropriately. Accepting this case would do little in terms of precedential effect.

ACLU had one good point in its motion to grant cert. It is essentially impossible to flesh out the facts in discovery if the facts are classified and fall under the state secret privilege. This threshold issue is shared by every one of these TSP civil suits. There will be no better chance to resolve this issue than in this appeal.

The 6th Circuit did not merely kick this case back to Judge Taylor's court for discovery to flesh out the fact. Rather, it dismissed the suit entirely because none of the plaintiffs can prove standing under the state secrets doctrine.

The standing issue needs to be resolved before any of these cases can develop the facts necessary to resolve the underlying substantive claims. The Supremes had the opportunity to reverse the 6th Circuit, limit or reverse the state secrets privilege and allow these cases to proceed to discovery. They declined to do so and left the 6th Circuit precedent intact.
 

"Bart" DePalma:

In ACLU v. NSA, Judge Anna Diggs Taylor granted a very questionable summary judgment to ACLU based upon newspaper stories and public statements by Executive officials, holding not only that the plaintiffs had standing, but that the TSP (about which she had no discovery) violated FISA.

It's called "admissions against interest".

And she granted summary judgement in part because the gummint didn't deny the allegations. If you don't deny, there's no issue of fact for trial and summary judgement is appropriate (at leats on that issue).

Glenn Greenwald has more.

Cheers,
 

Congress needs to do what the Supremes declined to do and shut this down.

Why?

Cheers,
 

arne langsetmo said...

"Bart" DePalma: In ACLU v. NSA, Judge Anna Diggs Taylor granted a very questionable summary judgment to ACLU based upon newspaper stories and public statements by Executive officials, holding not only that the plaintiffs had standing, but that the TSP (about which she had no discovery) violated FISA.

It's called "admissions against interest".

And she granted summary judgement in part because the gummint didn't deny the allegations. If you don't deny, there's no issue of fact for trial and summary judgement is appropriate (at leats on that issue).


Only Judge Taylor bought the ACLU argument that the Government admitted the allegations simply because it could not comment confirm or deny information about a classified program.

If I tried that stunt out here in Colorado, the judges would ask me if I was serious.

The 6th Circuit did not even bother dignifying that cheap argument in its opinion reversing Judge Taylor. Indeed, I believe the judge writing for the court simply acknowledged in a single paragraph that the plaintiffs had no evidence that they were actually the targets of the TSP and could not gain any under the state secrets privilege.

Glenn Greenwald has more.

Glenn is up to his usual slanders without evidence.

After admitting that he has no evidence that Mr. Bush had the TSP target innocent Americans or that the so called DOJ rebellion had anything to do with the TSP targeting innocent Americans, Glenn compares the TSP to Putin spying on innocent Russians.

Typical Greenwald.
 

Bart, the fact nonetheless remains that the case is being dismissed for lack of standing (because the plaintiffs do not know if they were actually surveilled without a warrant), rather than on the merits (that the Administration was acting lawfully in doing so). Once again, you yourself acknowledge that at least the Oregon plaintiff actually does have standing. But the Administration is going out of its way to avoid making that a test case on the lawfulness of its actions.

I have to wonder why.
 

What, in the structure of the "TSP" would prevent the gov't from spying on innocent Americans? Other than the gov't's own self-restraint, of course. And if it is solely a function of self-restraint, how can one possibly trust the gov't with that type of unchecked authority?

How do you respond to the statement from Judge Vaughn Walker in one of the suits against ATT, in which he stated that ATT could not "seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal."

Note the use of the word "domestic."

I would also like to hear a credible argument that the charity in Portland, a domestic entity, does not have standing after receiving a classified document showing it had been surveiled. And please, do not simply dismiss it as an "al Qaeda front group", as that has no bearing on the standing analysis.
 

mike said...

What, in the structure of the "TSP" would prevent the gov't from spying on innocent Americans? Other than the gov't's own self-restraint, of course. And if it is solely a function of self-restraint, how can one possibly trust the gov't with that type of unchecked authority?

You can make that argument about any part of the government. A much more relevant question to most people's lives would be: What in the structure of the Army is preventing the government from establishing a dictatorship?

The checks on government power are three fold - elections, two elected branches checking each other and ultimately an armed citizenry.

How do you respond to the statement from Judge Vaughn Walker in one of the suits against ATT, in which he stated that ATT could not "seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal."

Give me a link so I can read the entire opinion or comment from which you cut and pasted this.

Note the use of the word "domestic."

The location of the enemy should be irrelevant. al Qaeda should not gain 4th Amendment rights from intelligence gathering by invading our country. This why the original FISA was so wrong headed and why the reforms are vital.

I would also like to hear a credible argument that the charity in Portland, a domestic entity, does not have standing after receiving a classified document showing it had been surveiled.

You mean the al Qaeda fund raising front group? To call this funding arm of mass murderers a charity is obscene.

In any case, the Government won the first round of the standing battle against the Al-Haramain Islamic Foundation before the Ninth Circuit of all courts. The Ninth Circuit held that the mistakenly disclosed document fell under the state secrets privilege and not even personal recollections of the content of the document was admissible to prove standing. However, the court of appeals remanded the case back to the district court on the remaining issue of whether FISA preempts the common law state secrets privilege. I will defer to the briefs on that issue because I am unaware what the arguments are.
 

"Bart" DePalma:

The 6th Circuit did not even bother dignifying that cheap argument in its opinion reversing Judge Taylor.

They reversed 2-1, and denied standing. They said nothing as to the merits of the case. Note, FWIW, that one appellate judge didn't vote for reversal.

As the dissenting judge pointed out, the majority opinion's idea of "not even bother[ing] [to] dignify[] that cheap argument" was to basically ignore it. A tactic that seems to be a favourite of yours, but which is somewhat lacking in intellectual rigour.

["Bart"]: Glenn is up to his usual slanders without evidence.

Righto. It was just that kind of slander that you just tossed at Glenn (above) again that got you booted from his blog in the first place.

["Bart"]: After admitting that he has no evidence that Mr. Bush had the TSP target innocent Americans or that the so called DOJ rebellion had anything to do with the TSP targeting innocent Americans, Glenn compares the TSP to Putin spying on innocent Russians.

As Hertz would say, "Not exactly". Go read what Glenn said and you'll see immediately that the comparison is to what the RW foamers would say IF Putin acted like the maladministration. This he explains, and he gives his reasoning and his evidence.

That you see no "evidence" doesn't mean we have to ignore our eyes, ears, and common sense.

Cheers,
 

enlightened layperson [to "Bart"]:

Once again, you yourself acknowledge that at least the Oregon plaintiff actually does have standing.

Not quite that easy. The Circuit Court of Appeals demanded that the plaintiffs forget the "evidence" they did have to prove standing; they aren't even allowed to use their recollections of it in court (see here for more).

Now if that ain't something straight out of Kafka (or "Catch-22"), I don't know....

Cheers,
 

al Qaeda should not gain 4th Amendment rights from intelligence gathering by invading our country.

If it's al Qaeda, then get the freakin' warrant. The whole point of requiring warrants is to make sure it is al Qaeda we're snooping on, and not Joe Blow down the street (or, say, just to pick a name out of the blue, Martin Luther King II...). It's the rights of these people we're trying to defend. What's so hard to understand about that?!?!?

Cheers,
 

Following on my last post: "If it's al Qaeda, then get the freakin' warrant."

Andrew Napolitano agrees with me (and others here). (I also have a post with the most relevant excerpts of his article on my blog).

Cheers,
 

Bart,

I find it interesting that the first of your links indicate that the charges against the group for being in league with al Qaeda were dropped. Regardless, whether they are a front for al Qaeda is irrelevant in regards to standing and their constitutional rights.

As for the argument re: gov'tal restraint, the difference in this case is that you have a President claiming that with regards to his role as commander-in-chief (an argument you yourself propound), he cannot be regulated by Congress or the judiciary. So again, where is the check outside of the Executive's own self-restraint? How does this comport with the idea of checks and balances?

And of course, you remain willfully obtuse in that the argument being raised isn't about activities related to foreigners, but rather, activities related to citizens. I don't know why I bother with this...
 

mike said...

Bart, As for the argument re: gov'tal restraint, the difference in this case is that you have a President claiming that with regards to his role as commander-in-chief (an argument you yourself propound), he cannot be regulated by Congress or the judiciary. So again, where is the check outside of the Executive's own self-restraint? How does this comport with the idea of checks and balances?

I never posted anything of the kind.

Once again, Article II makes a general grant of executive and CIC power to the President.

Article I grants certain enumerated powers which overlap the general CiC powers of the President.

Consequently, the President has plenary executive and CiC power in all areas not enumerated in Article I. Because specific law trumps general law, the President may only act in the areas enumerated in Article I when Congress has not acted. However, when Congress acts according to one of its enumerated powers, it prevails over the Executive.

Beyond the areas of overlap in powers over the military and foreign policy, the Congress has two very powerful tools. It controls the money which the Executive may spend and it can impeach the President.

In sum, Congress is actually the more powerful of the two branches. The Presidents main advantage is that he is one person and can operate with a unity of purpose while the Congress is often divided and speaks with hundreds of voices.
 

Once again, Article II makes a general grant of executive and CIC power to the President.

"General grants" (small "g") are like "general warrants"; the founders loved them.... In fact, as you see, you get one, you get the other for free.

Cheers,
 

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The Presidents main advantage is that he is one person and can ...

"... screw things up royally all by himself."

Which is why the founders thought a lot more of the collective deliberation and wisdom of an elected and representative Congress assembled than they did of a monarch.

Furthermore, the idea that a single solon might have more wisdom and better ability to run things "decisively" and "efficiently" than the rabble is just one facet of the Right-Wing Authoritarian personality (and of contemporary neocon 'thought').

Cheers,
 

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