Balkinization  

Tuesday, June 10, 2008

What the FISA Debate is Not About

Marty Lederman

Come this August, some of the electronic surveillance orders that were approved pursuant to the 2007 Protect America Act will begin to expire. As of now, there is no consensus in Congress on a replacement statute; therefore, as the New York Times reports tomorrow, "Congressional and intelligence officials are bracing for the possibility that the government might have to revert to the old rules of terrorist surveillance, a situation that some officials predict could leave worrisome gaps in intelligence. . . . [O]fficials have been preparing classified briefings for Congress on the intelligence 'degradation' they say could occur if there is no deal in place by August."

What are these "old rules," anyway -- the ones that would be back in play if there is no amendment enacted by August, and that would cause such an intel "degradation"? That would be FISA, of course -- a statute that was amended at the behest of the Executive many times since its enactment in 1978, and used effectively by the NSA for more than two decades. The Attorney General is quoted as saying that a return to the FISA legal regime would be "unthinkable." But why? It is very difficult to figure out, either from the Times story or from other public sources, just what the big deal would be. Here's what the Times has to say about the possible "degradation" of intelligence capabilities:

A return to the old rules, [officials] said, would mean that government lawyers, analysts and linguists would once again have to prepare individual warrants, potentially thousands of them, for surveillance of terrorism targets overseas. Telecommunications companies would also have to spend considerable time shutting down existing wiretaps, and then start them up again if ordered under new warrants, officials said. In some instances, the broad orders given to the companies starting last August cover tens of thousands of overseas phone numbers and e-mail addresses at one time, people with knowledge of the orders said. A senior intelligence official, speaking on condition of anonymity, said the administration was concerned that reverting to the older standards and requiring individual warrants for each wiretap would create a severe gap in overseas intelligence by raising the bar for foreign surveillance collection. In some cases, the government might simply be unable to establish in court why it suspected that a foreign target was connected to terrorism. Part of the problem, officials said, is that communications going from one foreign country to another sometimes travel through a telephone switch on American soil and, under some interpretations of the older rules, could not be tapped without an individual warrant.
It is exceedingly difficult to make any sense of this debate without access to nonpublic information, but I think it is possible to clarify several things, which cumulatively render the "crisis" considerably less acute than Administration officials would have us believe.

1. First, the Times story suggests that "a return to the older surveillance rules" would "requir[e] individualized warrants for all wiretaps." That's simple not the case. FISA has never required individualized warrants or court orders for all wiretaps.

2. In particular, contrary to the dire warnings in the quote above (and as David Kris has been singularly resolute in emphasizing), FISA does not regulate phone communications "going from one foreign country to another," even if the calls "travel through a telephone switch on American soil." It is simply disingenuous of the Administration to suggest otherwise. Perhaps there are -- somewhere -- some "interpretations" of FISA that would support such a notion . . . but the Administration itself has (properly) rejected such interpretations. As the Washington Post reported in March:
Director of National Intelligence Mike McConnell . . . has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States. But in response to a question at [an ABA] meeting by David Kris, a former federal prosecutor and a FISA expert, [Assistant Attorney General Kenneth] Wainstein said FISA's current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States.

That is to say, NSA has always been free under FISA to surveille all foreign-to-foreign phone calls, even by intercepting such calls at U.S. switches, without the need for any judicial order.

Then what's the big deal? Principally two things, as far as I can tell:

3. Surveillance of foreign-to-foreign e-mails was arguably covered by FISA (as "electronic surveillance" under 1801(f)(4)), if acquired from storage on a server in the United States, because stored e-mail is neither a "wire communication" nor a "radio communication" under FISA. Thus, come this August, if there is no statutory amendment, U.S. law might once again require a court order for such interceptions.

The important thing to note about this possibility, however, is that there is absolutely no legislative resistance to amending this gap in FISA and treating foreign-to-foreign e-mails the same way that foreign-to-foreign phone calls are treated. If this is the big problem, it could be fixed tomorrow, likely by a 535-0 vote.

4. Which leads me to suspect that the main problem is not intercepts of communications that are known to be foreign-to-foreign, but instead the acquisition of numerous communications that might involve U.S. persons here in the United States. Perhaps, for example, certain types of surveillance of wire "switches" in the U.S. do not give the NSA the capability, at the outset, to tell if a particular communication involving a "target" in a foreign location has a terminus in the U.S. -- in which case at least some unknown number of the communications intercepted at the domestic switch would be "electronic surveillance" requiring a FISA court order.

Now, even if this is the case, FISA should not present much of a burden in the mine run of cases -- that is, in those instances where the NSA has evidence that the person being targeted overseas is an "agent of a foreign power," which includes (but is not limited to) someone who "engages in international terrorism or activities in preparation therefore." 50 U.S.C. 1801(b)(1)(C). In such cases, FISA court orders should be available as a matter of course. If, for example, NSA were able to show that the targeted foreign person is an al Qaeda agent (or other terrorist), as has been touted as the threshhold under the "Terrorist Surveillance Program," the agency should be able to readily obtain a FISA court order, even for a whole series of communications, some of which might be with U.S. persons.

Therefore, as I surmised last summer, it must be the case that the NSA's objective is not simply to surveille foreigners who it already suspects as being part of al Qaeda -- it can obtain a FISA order as to those folks. What the agency is seeking, instead, is to be able to intercept foreign communications (i) coming across domestic wires where (ii) NSA does not have probable cause to believe that any of the parties is a terrorist or agent of a foreign power; and (iii) there is a chance that some of the intercepted communications will be with persons in the U.S.

Under FISA, the NSA cannot engage in surveillance where all three of those conditions obtain. (Indeed, insofar as the surveillance would intercept communications of U.S. persons, without proof that either party is the agent of a foreign power, it would probably raise serious Fourth Amendment questions, as well, at least according to the pre-FISA cases in which courts of appeals considered the question.)

Without knowing more, I'd guess that this type of surveillance is the crux of the alleged "degradation" that might occur if the law reverts back to the FISA-based regime. And it's not immediately obvious how such cases should be treated under the law: What, if anything, should NSA be required to show in order to engage in undifferentiated, widescale surveillance in such cases? To whom should the agency make the requisite showing -- the FISA court? an Executive official? Most importantly, what minimization requirements should be mandated in such a case?: If the surveillance does uncover communications of U.S. persons, under what circumstances should NSA be permitted to preserve and use such U.S. person communications?

Those are, I think, the hard questions. However they are resolved, the Times story suggests that there might be some momentum toward two things that I stressed when I wrote about this last August:

1. Any new amendment should reinforce and strengthen FISA's "exclusive means" provision, to make sure that the Executive branch cannot so readily bypass FISA as it did from 2001-2007. Moreover, the statute could specify that telecom companies will not have immunity from liability, and will not be able to invoke any state secrets privilege, if they facilitate surveillance based upon some extra-FISA opinion of the Department of Justice (e.g., an OLC opinion based on Article II of the Constitution).

2. Congress should insist on timely and comprehensive legislative oversight, not limited to the "gang of eight," and permitting close review by those legislative aides and counsel -- not simply members -- who are most sophisticated in the ways of electronic surveillance, intelligence, and the law.

Comments:

This comment has been removed by the author.
 

prof. lederman ..

[1] since our plain old FISA already contained an exclusivity clause ..which has been/is vigorously ignored by the current administration.. what's the construct of the current legal shenanagin under which the executive is now operating ??

or ..eschewing surplusage: under what guise do their pretentions lie ??

[2] should we suppose that if faced with a hypothetical future willful full-blown executive-in-chief-war-commander-decider type in the oval office .. that the renewed freshly-polished exclusivity clause of an [all new]updated FISA would fare any better than did the original path of exclusivity dictated by the plain old FISA ??

[3] having observed on several occasions since the 1960's the tendency of the executive branch of our government to develop the idea it is entitled to an opinion separate from.. and enforcable over .. the will of the people as duly expressed by the enactment of laws by their elected body politic .. what do you envision as a cure for this irritating and seemingly unconstitutional habit??
 

In February, the CRS analyzed the Senate and House FISA reform bills under consideration today. Very likely, the bill which will be enacted before NSA goes partially blind in August will be some combination of these, more likely the Senate than the House bill. The Blue Dog Dems are not going into the election in Red and Purple districts without doing so.
 

This post is about what I've tried to point out for a long time. The language in FISA that allows for phone communications doesn't allow for email communications interception without amendment and that is pretty much the most of what is needed.

Not only that, but there is absolutely no support of any kind in case law or Constitution to allow for the rampant interception of all foreign correspondence (with no protections on corporate or private communications and no restraints on what the Executive can do vis a vis personal blackmail or providing information to competitors or governments who want to jail dissidents etc.) without any linking of the interceptions to agent of foreign power issues.

Not only is it not needed, it shouldn't be allowed and there is not Constitutional grant by the people to the Executive to engage in massive worldwide spying without checks or limits for the purposes of using US resources to for the benefit of corporate interests, friends of the Executive, destruction of political enemies etc.

Add on the mass interceptions of American communications (I'm thinking that they capture and store, to have available for later sift and sort) and there is no way you pass the Keith case standards.

But I don't think you need to limit this post to the realm of specualtion.

Listen to the discussion at the ABA panel from March 3.

Follow this link to the ABA Nat Sec page
http://www.abanet.org/natsecurity/
then scroll down to the March 3 event and they have links to both Cspan video and a podcast download.

The questioning was much better than in the Congressional hearings and the answers to the relatively sophisticated crowd were much more forthright.

I believe that Wainstein and Baker pretty much confirm exactly what is said in this post.

It's been awhile since I listened so I may be confusing this with something else, but I know some of the audience questions were very direct and IIRC some came from Kris.
 

mary:

Isn't an ABA section on National Security a little like Martha Stewart discussing law?

In any case, the 4th Amendment does not extend overseas to foreign citizens or to domestic surveillance of agents of foreign groups for intelligence gathering.

The argument over the FISA reform is to what extent Congress will bless intelligence gathering for which the Executive already has authority under Article II.
 

Aw, Bart, I didn't know you were a Martha Stewart fan. I don't watch her so I can't comment on your comparison. It's interesting that you find such appeal in doilies and casseroles.

I think the panel - Wainstein, Baker and Martin - was pretty solid.

YOUR argument is whatever you find convenient at the time, given the statements and desires of those who put that ring through your nose to lead you by. Given that you have already bought, hook, line and sinker, the alternative universe storyline whereby a London Chef making souffles in Mayfair can simultaneously be physically located in and leading a terrorist training camp - I can't always find my way through the "suspension of reality" weeds where your imagination machetes through.

My less imaginative formulation of the issues are:

a) What power is granted to the Executive. There is no support anywhere in the Constitution or case law for finding a grant of power in the Presidency or even the Presidency plus Congress to find a power to spy on non-"agents of foreign powers" and US citizens on US soil in communication iwth non-"agents of foreign powers."

Corporate espionage and political blackmail and degredation of liberty through a worldwide surveillance state approach are not "intelligence gathering" as used in any sound formulations anywhere.

b) To what extent US citizens on US soil can have their communications surveilled with no probable cause to believe that they are engaged in criminal activities and no probable cause to believe they are conversing with foreigners who may be implicated in national security issues.

The Keith case pretty much already answered those scenarios for you and if you think that the "foreign" issue wasn't raised there, go back and look at the propaganda put out by the then AG and at arguments.

They absolutely made the links of US groups with foreigners and foreign interests in trying their warrantless approach and it was shot down.

The main difference between the days of Watergate and the Keith case etc. is that back then you had, however ideologically adverse, real lawyers who complied with their professional obligations to respond truthfully to tribunals and not destroy evidence.

Today, we instead have a DOJ led for years and from different departments, by men and women who don't quibble over lies and misrepresentations to tribunals and destruction of evidence.

That's why we don't really have hopes of reformation. Lawyer after lawyer after lawyer throughout all parts of DOJ and the rest of the Executive branch (excepting only a chunk of JAG and a few civilian Pentagon lawyers, and probably Taft at State), found, on review, that it was easier and better to avoid the truth and facilitate the destruction of evidence than to have the actual debate.

I guess the wonderland of Martha Stewart and fantasy terrorist souffles attracts a wider fan club that just you, Bart.
 

In any case, the 4th Amendment does not extend overseas to foreign citizens or to domestic surveillance of agents of foreign groups for intelligence gathering.

Bart makes 2 claims here and bundles them, but in fact, while the first one is true, i.e., the 4th Amendment does not extend overseas to foreign citizens, US v. Verdugo-Urquidez, there is no controlling legal authority on the second proposition, and certainly in criminal prosecutions of agents of foreign powers, the courts have always treated the 4th Amendment as applying to searches in the US.

I might add something else-- this is not academic. If the Fourth Amendment does not apply to various classes of people within the US, then that means that effectively it also does not apply to Americans who come in contact with them.
 

Short answers to stoopid questions:

Isn't an ABA section on National Security a little like Martha Stewart discussing law?

No.

Cheers,
 

In any case, the 4th Amendment does not extend overseas to foreign citizens or to domestic surveillance of agents of foreign groups for intelligence gathering.

Not so obvious. In the (in)famous In re: Sealed Case opinion, the court made a fair bit about the similarities and parallels between traditional Fourth Amendment-compliant provisions for standard searches and the regulatory framework of FISA that was under challenge, in deciding that FISA did not violated the Fourth Amendment. If the Fourth Amendment didn't apply at all, such analysis would have been superfluous.

Cheers,
 

dilan:

A line of Circuit opinions culminating with United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980) unanimously holds that the 4th Amendment applies to surveillance of agents of foreign groups done primarily for criminal prosecution, but not for that done primarily for intelligence gathering. Indeed, Truong went further to hold that evidence obtained during warrantless intelligence gathering can be used in a criminal trial.
 

"Bart" DeDicta:

The argument over the FISA reform is to what extent Congress will bless intelligence gathering for which the Executive already has authority under Article II.

That would be like "Bart" blessikng me. That is to say, of no consequence and of only slight amusement. And that just goes to show that "Bart" shouldn't gave a rat's a$$ as to whether Congress reauthorises the PAA (or something like it), or even if it repeals FISA entirely.

But he does.

Res ipsa loquitur

Cheers,
 

Wow, I want Mary to be *my* lawyer.
 

Bart:

Those 4th Circuit opinions are quite controversial, and many scholars take a different view.

You can't simply say that the 4th Amendment does not apply to domestic searches of agents of a foreign power in a blithe manner like you did-- it isn't clearly established the way the Verdugo rule is, and it is very possible that if a case presents the issue squarely, the Supreme Court would go the other way.
 

dilan:

Actually, the line of cases culminating in Truong are from 3-4 circuits. I am not on my home computer with all the cites.

While some scholars may not like the rulings, that is the current federal law on the subject and a much more liberal Supreme Court declined cert to review them. It is very doubtful that this much more conservative lineup of Supremes would reverse.
 

mary:

How did you know about my love affair with potpourri and doilies? Don't you know, it's a good thing? (That is a Stewart-ism if you have not seen her show.)

In any case, my point is that lawyers generally know very little about the nuts and bolts of foreign policy and even less about war. I agree with Jack Goldsmith's lengthy observations in his book Terror Presidency that the post Vietnam attempts to enmesh the prosecution of war in a maze of laws and regulations to be administered by a gaggle of attorneys with no real experience in fighting wars is a recent and serious deviation from the status quo and is most definitely not a good thing.

Apart from the Article I powers to start and finance wars, regulate the good order and discipline of the troops and to set rules for captures, there are actually almost no limits on the plenary power of Presidents to direct wars. Most of Congress' post Vietnam efforts to assume the power to direct wars, including FISA to the extent that it attempts to direct intelligence gathering, are baldly unconstitutional.

To answer your questions...

1) Article II makes the President and not Congress the CiC. Part of the powers of a commander of troops is to direct intelligence gathering. That command function is as old as a tribal chief sending out scouts. There is absolutely no legal dispute over this power.

2) We agree that the government may not target innocent US citizens for surveillance. When you have any evidence of this, let me know. Reportedly, the TSP targets captured enemy telephone numbers and email addresses. This does not provide individualized probable cause sufficient for a warrant, which is why FISA is as unworkable as it is unconstitutional. However, it is not targeting innocent Americans. It is well reported that the NSA has minimization rules to stop surveillance when it becomes plain that the number is not used by the enemy.
 

"Bart":

Will you please stop? You keep insisting that someone wants to "direct" intelligence gathering:

1) Article II makes the President and not Congress the CiC. Part of the powers of a commander of troops is to direct intelligence gathering. That command function is as old as a tribal chief sending out scouts. There is absolutely no legal dispute over this power.

No one is suggesting that Congress do so. They may, however, regulate such, just as they may regulate that U.S. forces use ammunition that is interchangeable with that of its allies (which they did), and just as they could even -- were they stoopid enough to do so -- insist that the standard armamentarium of soldiers be sporks and sporks only.

Your "direct" dissembling is a 'straw man" and dishonest argument.

The whole of Title 10 is replete with laws that affect military operations, and only a small portion of that is the UCMJ. You have yet to acknoweldge that, or to state that it is your opinion that most of Title 10 is simply unconstitutional.

Cheers,
 

Reportedly, the TSP targets captured enemy telephone numbers and email addresses.

Cite for this "fact", "Bart"? Thanks in advance.

Cheers,
 

Article II makes the President and not Congress the CiC. Part of the powers of a commander of troops is to direct intelligence gathering. That command function is as old as a tribal chief sending out scouts. There is absolutely no legal dispute over this power.

Yes, Bart, you keep making the point that Congress may not "direct" intelligence gathering or other military operations or "tell the President
what targets to wiretap." But of course FISA does nothing of the kind. It tells the President what procedures to follow when he does intelligence gathering inside the United States.

Congress undoubtedly has the constitutional authority to regulate the military. You argue that this applies only to the UCMJ. When I asked you for a case to support this, you gave cases showing that Congress may not subject civilians associated with the military (such as military dependents or retired service members) to court martial. Hardly on point.

So please, Bart, offer some sort of case establishing the distinction between a proper "regulation" and an unconstitutional "direction" of the military, or at least some law that was struck down as unconstitutionally "directing" military operations. Until then I will go by US v. Duggan holding that FISA does not "unconstitutionally inject the courts into the making of foreign policy."
 

Thanks for your unique input Bart, but you ignored the answers I already provided.

The President is CIC. The President, in his role as CIC, is - as noted by Hamdan among other cases - constrained by laws, rules etc. promulgated by Congress and parameters of his role as CIC is interpreted by the Sup Ct.

Your interpretation of his role as CIC being the equivalent of an unlimited grant of a right to surveill all foreign persons for all reasons, personal and obtuse as well as national security related, is yours. Not one that is based on law, fact, need or reason.

The only carve out for warrantless intelligence surveillance that the Sup Ct has referenced, however, was the warrantless surveillance of non-US citizen agents of foreign powers for national security purposes. Not "all foreigners" and not for all reasons, including personal, corporate, donor, political party, etc.

So your answer that the President is CIC is lovely but lacking its own Martha Stewart-based relevance point. The existing FISA statutes at all relevant times covered agents of foreign powers (as per the Sup Ct references) and those were broadly defined to include pretty much all national security related reasons.

The Constitution does not grant to any of the three branches of govt unlimited power to use Govt resources to spy on foreign persons for personal pleasure and gain. Whether they wear a "CIC" hat or a Halliburton hat or an Exxon hat at the time.

Moreover, to the extent that this Govt wants to make the argument that the President has full and unfettered ability to broadly spy on all foreign persons for any unsuperivsed and unauthorized reasons and with no oversight or recourse, then I have to think that we will find that we've pretty much cut off our free market nose to spite our face. SWIFT facilities are moving out of country for a reason and that has been nothing but detrimental to the US and US security interests.

As foreign countries and foreign private persons realize that multinationals with any US base purport to follow a guideline that US private interests can, via Presidential directions, eavesdrop on all their communications without oversight or redress, then that will over time have a similar impact.

If I could find a way to print it on a doilie with "it's not a good thing" maybe the message would be more clear, but I'm just not that talented.

As to the evidence of interception communications of US citizens on US soil - umm, how are we supposed to provide that evidence to you when you are first saying that the President and his surrogates can lie, destroy evidence etc. all with no recourse and can run domestic surveillance programs so off the books that they never have to account for what they are doing?

Still - here's some evidence, which, in the absence of truth from DOJ or integrity from intel and NSA or a requirement for either from you and the imperial Presidency supporter, will at times be circumstantial.

First, the Al-Hariman case.

Second, Mark Klein's statements.

Third, the fact that Judge Lamberth ruled the program so illegal and tainted that specific firewalls had to be established to prevent any of it from touching FISA (which wouldn't be tainted by solely agent of foreign powers surveillance).

Fourth, Judge Kollar-Kotelly made a similar ruling and threatened action against DOJ at the highest levels when they were violating her ruling.

Fifth, Judge Diggs - the only Judge to review on the merits in a judicial proceedings - ruled the program illegal and referenced domestic surveillance aspects (the Sixth Circuit never touched the findings on the merits and stayed with a standing argument to dismiss).

Sixth, Judge Walker in CA who has had his own fair amount of exposure has made similar findings.

Seventh, DOJ is attempting to pull all references to agents of foreign powers and probable cause on that front in the legislation to now make it appear that Congress would have been back then ok with unsupervised, unlimited foreign surveillance without probable cause of foreign power association.

Eighth, Wainstein pretty much admits in the ABA discussion that, in order to cover themselves on "teh program" they need to be able to both conduct communications surveillance on any AND MANY foreign persons contemporaneously without probable cause to believe that they are an agent of a foreign power (and so they are wanting to surveil people who do not fall under any CIC powers) and Wainstein's admissions on emails that they want to look at all of them first, without having to worry about whether some of the email addresses belong to US persons on US soil.

Ninth, the false statements made over and over originally about there not being a data mining element to the program (from Bush and Hayden and others) coupled with later testimony summarized as dealing with the - - - data mining elements of "teh program" and the datamining/basket warrants requests that have been forthcoming.

Tenth, Intel Czar McConnell's revelations that telecoms would be liable for untold millions upon milliions for what they have done to date (no damage awards would exist for surveillance where there is probable cause to believe someone is an agent of a foreign power).

Eleventh, the Goldsmith/Comey showdown which IMO was probably vitally tied to the DOJ violations of FIS court orders but which indicate that there were substantial issues (IMO, probably not actually fixed in any way other than providing firewalls that better addressed the FISCt concerns of keeping the illegally obtained information distanced from the FISC)

Well, actually I can go on and on, but I think what you are waiting for is for one of the criminals involved in the felonious surveillance of US citizens on US soil to voluntarily cough up the evidence. Kind of like you expected the Kangaroo Courts conducting the combatant statuts review tribunals who found themselves looking at innocent civilians whose transport to GITMO was an Article 49 violation and war crime under the War Crimes Act, to certify those innocent civilians as innocent civilians and thereby certify the President who ordered the transport and all the soldiers who participated in the detention and transport as war criminals.

There's no real point since when you are given proof (for example, Errachidi's souffle making while he is claimed to have been an al-Qaeda General running a training camp) you then jump track to "well, gosh, he might have maybe been a bad person anyway." Evidence of US citizens being spied without warrants or oversight will get your "gee, maybe they were bad persons anyway" and "the President is CIC" rationalization/irrelevancies.

And as for the "prosecution of war" by lawyers and references to Goldmsith, ha. Or even "ha ha."

That's not at issue at all and you know that, so you avoid the real issues. The issue is that there are lots of people in the world who are civilians and not "at war" with anyone. And you are deliberately and very shamefully advocating the no-consequences ability of an out of control frat boy President to kidnap, buy, disappear, experiment on, abuse, terrify, bomb, torture and otherwise destroy any of those civilians he chooses on whim.

That is exactly what has happened, what has been proven, and what you continue to support by saying, "commander in chief, commander in chief."

The problem and issue isn't the involvement of lawyers prosecuting war (actually, it has been the lawyers who have over and over forced on the military standards they resisted and abhorred) as an impediment. The problem has been allowing the DOJ to promote the label of "war" as a coverall for kidnap and abuse of civilians who were not taken on any battlefield (as such is defined in Milligan). The problem has been declaring war on an enemy you can't identify and then saying that justifies any atrocity commited on anyone.

The problem is unsound idiots using talking point avoidance to justify the depraved.
 

Bart, one of the most well established propositions of all is that a cert denial isn't a comment on the merits.

Also, if your position really were clearly established federal law, prosecutors would rely on it regularly in prosecutions of foreign terrorist suspects. But they don't. They argue that their searches are within the 4th Amendment, and the courts assume that the 4th Amendment applies.
 

-- Wow, I want Mary to be *my* lawyer. --

.

I make no secret of being a "Goldwater radical," and assume that Mary and I come to issues with sharply conflicting political and social biases.

.

That being said, I am positively impressed by Mary's consistent preparation of well informed and intellectually honest posts. She's my favorite, too. And the contest isn't even close.
 

observation:

that's what we laymen call "having your ass handed to you on a platter" mr. depalma

:)
 

enlightened layperson said...

BD:Article II makes the President and not Congress the CiC. Part of the powers of a commander of troops is to direct intelligence gathering...

Bart, you keep making the point that Congress may not "direct" intelligence gathering or other military operations or "tell the President
what targets to wiretap." But of course FISA does nothing of the kind. It tells the President what procedures to follow when he does intelligence gathering inside the United States.


Directing intelligence consists of deciding who will or will not be a target and what methods will be used. Through FISA, Congress is attempting to direct what what targets may not be targeted and what types of surveillance may not be used.

FISA does not merely set forth procedures like reporting to Congress so it can perform its oversight functions. Rather, Congress is attempting to criminalize perfectly constitutional intelligence gathering.

Congress undoubtedly has the constitutional authority to regulate the military. You argue that this applies only to the UCMJ. When I asked you for a case to support this, you gave cases showing that Congress may not subject civilians associated with the military (such as military dependents or retired service members) to court martial. Hardly on point.

I have prevented two sets of cases - the first were examples of courts holding that the UCMj is authorized under Article I and the second were examples of how this Article I provision has been repeatedly held not to apply to civilians like the NSA.

In response, I have also challenged the professors, lawyers and anyone else who is up to the challenge to provide me with a single case which held that Congress may direct any military operation whatsoever under the guise of regulation. There have been no takers because all of the precedent holds that the power to regulate the military means to enact rules for the good order and discipline of the uniformed armed forces.

US v. Duggan addressed the issue of whether FISA failed to satisfy the 4th Amendment's probable cause standards for gathering criminal evidence. The court held it did. Congress' power to direct Executive intelligence gathering was not before the court. Indeed, the Executive in this case was using FISA to get around normal 4th Amendment requirements.

I find is fascinating that the alleged civil libertarians here are all bent out of shape that the Executive is ignoring FISA to spy on al Qaeda, but I have not heard a word challenging Congress' enacting legislation allowing the Executive to bypass 4th Amendment probable cause requirements to obtain FISA warrants against Americans which would not fly in a civilian court.
 

dilan said...

Bart, one of the most well established propositions of all is that a cert denial isn't a comment on the merits.

Officially no, but you and I know that the Burger Court had no trouble taking cases upon which it wanted to rule regardless of conflict in the lower circuits. The fact that this extremely activist court declined to in these cases is evidence (albeit not conclusive) that they were not upset with these rulings.

Also, if your position really were clearly established federal law, prosecutors would rely on it regularly in prosecutions of foreign terrorist suspects. But they don't. They argue that their searches are within the 4th Amendment, and the courts assume that the 4th Amendment applies.

Whether the 4th Amendment reaches intelligence gathering against agents of foreign groups and whether evidence discovered during such warrant-less surveillance should be admitted in a criminal trial are two different issues.

For what it is worth, I believe that evidence discovered during intelligence gathering should be used to gain a warrant, but not as evidence in a criminal trial.
 

"Bart" DeDicta:

Through FISA, Congress is attempting to direct what what targets may not be targeted and what types of surveillance may not be used.

I don't see a single sentence in 50 USC §§ 1801-1811 that names a single name of who can and who cannot be surveilled.

Your alternate proposition is that they cannot specify any restrictions on the classes of people surveilled (or even the reasons for, and evidentiary standards for, such). That means that Dubya can surveille you or me. If that's your position, be bold, and out with it. Of course, such a position would make you the laughing stock of not only the least gifted 1Ls, but even those laypersons just moderately acquainted with the Constitution and the Bill of Rights.

FISA does not merely set forth procedures like reporting to Congress so it can perform its oversight functions. Rather, Congress is attempting to criminalize perfectly constitutional intelligence gathering.

That's right. Congress doesn't legislate "reporting", nor is that their raison d'etre. It passes laws that others are required to follow. If they have no ability to legislate the conduct of surveillances, they wouldn't even have the power to insist on "reporting". Congress is not a "watchdog"; it is a legislative body, and the reporting requirements are there to insure that its legislation is proper and effective. This is pretty basic stuff, "Bart". Who'd you get to take your bar exam, just out of curiosity?

Cheers,
 

-- I have not heard a word challenging Congress' enacting legislation allowing the Executive to bypass 4th Amendment probable cause requirements to obtain FISA warrants against Americans which would not fly in a civilian court. --

.

My memory sucks, and I recall PAA-related complaints that amount to a charge of Congressional encroachment on the 4th.
 

"Bart" DeDicta:

[Enlightened Layperson]: Congress undoubtedly has the constitutional authority to regulate the military. You argue that this applies only to the UCMJ. When I asked you for a case to support this, you gave cases showing that Congress may not subject civilians associated with the military (such as military dependents or retired service members) to court martial. Hardly on point.

["Bart"]: I have prevented two sets of cases - the first were examples of courts holding that the UCMj is authorized under Article I and the second were examples of how this Article I provision has been repeatedly held not to apply to civilians like the NSA.


The first is not under dispute by anyone. Those cases are irrelevant.

The second is not true. There is no case you have provided that states that the NSA is not covered by the UCMJ. AAMOF, the head of the NSA is required by law to be a military officer. But aside from that, NSA employees (many of whom are military as well) may well be covered by provisions of the UCMJ that relate to those persons who are working with the military (which includes, for example, NOAA people and other such federal employees; see, e.g., 10 USC § 802(a)(8)).

That all aside, the issue of whether the UCMJ applies to NSA is irrelevant to whether Congress can regulate the NSA (and other federal agencies). The UCMJ is not the sole means for Congressional regulation of all things military, despite your imlicit claims that over half of Title 10 is un-Con-sti-too-shun-uhl [and ignoring of any comments by others to the contrary]).

Cheers,
 

-- Congress is attempting to criminalize perfectly constitutional intelligence gathering. --
.

That's a charge that the statute is offensive to the consitution. Explain the absence of a demand or request to repeal 50 USC 1809.
 

"Bart" DeDicta:

I find is fascinating that the alleged civil libertarians here are all bent out of shape that the Executive is ignoring FISA to spy on al Qaeda, ...

We're not complaining about spying on al Qaeda. That has been made plain to you from day 1. To pretend that anyone here is complaining about that is simply being dishonest.

... but I have not heard a word challenging Congress' enacting legislation allowing the Executive to bypass 4th Amendment probable cause requirements to obtain FISA warrants against Americans which would not fly in a civilian court.

You seem to be hard of reading then. But we all know that. You come here to talk, but not to listen. I suggest you cure that infirmity. It would be the polite thing to do.

Cheers,
 

"Bart" DeDicta:

Whether the 4th Amendment reaches intelligence gathering against agents of foreign groups and whether evidence discovered during such warrant-less surveillance should be admitted in a criminal trial are two different issues.

Does anyone here see an echo of Nino's tortured (so-to-speak) contention that the prohibition on "cruel and unusual punishment" only applies to that done to actual criminals post-conviction, and that the rest of us, not convicted of a single crime, ought to just suck it up and take it if they happen to torture us people prior to conviction (or even absent any evidence of wrongdoing) simply because the gummint (says it) "needs" the information?!?!?

I think, on sober reflection, the same dynamic is applying. I find it ... to use Mr. Spock's words: "illogical".

Cheers,
 

A simpler explanation of FOTPT has never been seen in a ConLaw class:

For what it is worth, I believe that evidence discovered during intelligence gathering should be used to gain a warrant, but not as evidence in a criminal trial.

For good reason.

Cheers,
 

This comment has been removed by the author.
 

Bart:

Directing intelligence consists of deciding who will or will not be a target and what methods will be used. Through FISA, Congress is attempting to direct what what targets may not be targeted and what types of surveillance may not be used.

Even granting your premise, Bart, that Congress may not directly regulate methods of surveillance, are you implying that there is no power of the purse check on the surveillance activities of the CIC? Is the Congress REQUIRED to sign blank checks funding ALL surveillance methods, to the extent that satisfies the whim of the CIC, or does it have Constitutional authority to refuse to fund some of them?
 

I have prevented two sets of cases - the first were examples of courts holding that the UCMj is authorized under Article I and the second were examples of how this Article I provision has been repeatedly held not to apply to civilians like the NSA.

You have presented cases that this Article I provision does not extend to trying civilians by court martial. If FISA provided that any civilian NSA employee accused of violating the Act would be tried by court martial instead of civilian court, I think we would all agree that provision was unconstitutional. But to say that Congress has no constitutional authority to regulate the conduct of civilian federal employees, including civilian employees of the military is, to put it mildly, an eccentric view.

In response, I have also challenged the professors, lawyers and anyone else who is up to the challenge to provide me with a single case which held that Congress may direct any military operation whatsoever under the guise of regulation.

I am perfectly willing to acknowledge that Congress may not direct military operations under the guise of regulation. But I do not acknowledge that FISA is a direction, rather than a regulation, of intelligence gathering. So allow me to repeat my challenge to you: [O]ffer some sort of case establishing the distinction between a proper "regulation" and an unconstitutional "direction" of the military, or at least some law that was struck down as unconstitutionally "directing" military operations. Obviously, the question of this distinction has never been decided in court WRT FISA. Offer me some other instance in which it has been decided and we will have a basis to see if FISA is comparable. Until you offer such a case, I intend to raise this question every time you claim that FISA unconstitutionally "directs" intelligence gathering.

US v. Duggan addressed the issue of whether FISA failed to satisfy the 4th Amendment's probable cause standards for gathering criminal evidence. The court held it did. Congress' power to direct Executive intelligence gathering was not before the court.

Duggan did, indeed address the issue of whether FISA met 4th Amendment standards, but it addressed other issues as well. In particular, it addressed the separation of powers question and held that FISA review was sufficiently limited that it did not "unduly inject" the courts into the executive realm of foreign policy.

I admit, this addresses foreign policy rather than military operations and whether the courts were overreaching, rather than whether Congress had the authority to pass FISA at all. But since no case has ever been decided on that issue, Duggan remains the only case I know of to address whether FISA infringes on the President's authority, and finds that it does not. I eagerly await whatever case you may have to offer on what constitutes an unconstitutional "direction" of military operations.
 

PS: I note with great interest that you do not respond to Mary's 8:17 PM post presenting evidence that the Administration intercepted the communications of US citizens on American soil.
 

tokyotom said...

BD: Directing intelligence consists of deciding who will or will not be a target and what methods will be used. Through FISA, Congress is attempting to direct what what targets may not be targeted and what types of surveillance may not be used.

Even granting your premise, Bart, that Congress may not directly regulate methods of surveillance, are you implying that there is no power of the purse check on the surveillance activities of the CIC?


Sure. Congress may defund the TSP. It simply may not direct the Executive's foreign intelligence gathering activities.
 

enlightened layperson said...

BD: I have prevented two sets of cases - the first were examples of courts holding that the UCMj is authorized under Article I and the second were examples of how this Article I provision has been repeatedly held not to apply to civilians like the NSA.

You have presented cases that this Article I provision does not extend to trying civilians by court martial. If FISA provided that any civilian NSA employee accused of violating the Act would be tried by court martial instead of civilian court, I think we would all agree that provision was unconstitutional. But to say that Congress has no constitutional authority to regulate the conduct of civilian federal employees, including civilian employees of the military is, to put it mildly, an eccentric view.


There is no precedent holding that the Article I power to regulate the Army and Navy empowers Congress to regulate civilian government employees. If you have another provision in mind, we can discuss it.

BD: In response, I have also challenged the professors, lawyers and anyone else who is up to the challenge to provide me with a single case which held that Congress may direct any military operation whatsoever under the guise of regulation.

I am perfectly willing to acknowledge that Congress may not direct military operations under the guise of regulation. But I do not acknowledge that FISA is a direction, rather than a regulation, of intelligence gathering. So allow me to repeat my challenge to you: [O]ffer some sort of case establishing the distinction between a proper "regulation" and an unconstitutional "direction" of the military, or at least some law that was struck down as unconstitutionally "directing" military operations.


Congress had never attempted such a thing prior to Vietnam and it is unclear whether Congress thought it was using this provision to enact FISA after Vietnam. Given that the President simply ignored FISA and Congress declined to enforce it in court, the courts have not had an opportunity to opine. So we are left with reading the Constitution for ourselves.

PS: I note with great interest that you do not respond to Mary's 8:17 PM post presenting evidence that the Administration intercepted the communications of US citizens on American soil.

Honestly, Mary lost me in that post after the first couple paragraphs.

In any case, I asked for evidence the TSP was targeting innocent Americans and Mary provided none.

The only actual evidence identifying a target of the TSP is the Al-Hariman case, where some fool at DOJ accidentally disclosed what is purported to be a document naming them. Al-Hariman has been identified internationally as an al Qaeda front fund raising group. As such, its members are agents of al Qaeda and the 4th Amendment does not require a warrant to conduct intelligence gathering against them. No evidence gathered through intelligence gathering has been used against them in a criminal prosecution. Thus, the 4th Amendment and the exclusionary rule are inapplicable.
 

"Congress may defund the TSP. It simply may not direct the Executive's foreign intelligence gathering activities."

"Bart" can spout the same trite panoply of bald assertions and "straw man" fallacies in the service of RW authoritarian government over and over again. He simply can't come out with an actual legal argument to support these assertions that would fool even a moderately intelligent twelve-year-old.

Cheers,
 

"Bart" DeDicta:

This is getting boring.

Congress had never attempted such a thing prior to Vietnam and it is unclear whether Congress thought it was using this provision to enact FISA after Vietnam....

So in the 30 years since Vietnam's denouement, how many times has the court overturned any such Congressional regulations?

... Given that the President simply ignored FISA and Congress declined to enforce it in court, the courts have not had an opportunity to opine.

Oh, they have. And they will. The maladministration's response is to avoid any litigation of the merits by trying to stifle any such through assertion of the abused "state secrets" prvilege (and "executive privilege" in other circumstances). The "state secrets" privilege is getting overused and being looked on askance bymore than one judge, as Mary pointed out.

But I'm curious, "Bart"? How does Congress go about "enforc[ing] it in court"? Wouldn't you then be running around screaming at the top of your lungs, "Political question! Political Question!!!"

Mind you, other Congressional actions against the lawlwssness of the maladministration are wending their way through court.

Cheers,
 

"Bart" DePalma:

In any case, I asked for evidence the TSP was targeting innocent Americans and Mary provided none.

What wonderful sleight-of-hand. If I selected one person and read his e-mails, I've "targeted" him and that's illegal. But if I collect the e-mails of millions of people and go digging through them all, I haven't "targeted" anyone and there's no harm, no foul....

The only actual evidence identifying a target of the TSP is the Al-Hariman case, where some fool at DOJ accidentally disclosed what is purported to be a document naming them....

The gummint doesn't deny it (as recounted in Molly Ivins's posthumous book, "Bill of Wrongs"). They just insisted that the lawyers return the document and then not remember what it said(!!!).

... Al-Hariman has been identified internationally.... <*blah-blah-blah....*>

Yeah, we know, if you've been listened too, you must be a terraist, because we only listen to terraists.

There's millions of "terraists" in the U.S. No wonder you keep crappng your pants, "Bart".

Cheers,
 

BTW:

["Bart"]: The only actual evidence identifying a target of the TSP is the Al-Hariman case, where some fool at DOJ accidentally disclosed what is purported to be a document naming them....

[Arne]: The gummint doesn't deny it (as recounted in Molly Ivins's posthumous book, "Bill of Wrongs"). They just insisted that the lawyers return the document and then not remember what it said(!!!).


One side note on this: One copy of the document was given to one of the clients in Saudi Arabia (IIRC) before the gummint came in and demanded that it be returned (and the reach of U.S. "state secrets" privilege and all that doesn't reach that far). But the gummint has insisted that the "state secrets" privilege applies nonetheless and that the plaintiffs here can't even "recall" any of the information in court. So ... assuming arguendo that this was a bunch of terraists ... that leaves us in the position where the actual 'terraists' have the document, but a U.S. court entrusted to uphold the laws of the United States cannot have it. So exactly what is the "state secrets" privilege being used to "protect" here?!?!?

Cheers,
 

Prof. Lederman quotes the N.Y. Times:

"[O]fficials have been preparing classified briefings for Congress on the intelligence 'degradation' they say could occur if there is no deal in place by August."

They also told them to keep plenty of plastic wrap and duct tape on hand.

I'm sure they also told them that they're going to hammer them over the head with this during the upcoming election season if they don't roll over an play dead for the maladministration.

Glenn Greenwald, indispensible source of much fine commentary, has more, of course. Best part about Glenn's blog is that he banned our resnit eedjit "Bart" a while back for making false accusations.

Cheers,
 

From the Times article:

elecommunications companies would also have to spend considerable time shutting down existing wiretaps, and then start them up again if ordered under new warrants, officials said.

Every piece of equipment I've dealt with has a mandatory expiration date for the surveillance, one that is supposed to expire when the warrrant expires. You fill it in from the warrant.

The idea of a warrant that has no limits, not expiration date, is anathema to Fourth Amendment law.

I don't know of a single person that thinks that following procedure is burdensome for instituting warrants .. that are legally required and obtained.

The maladministration may well rue the day they decided to bypass both Constitutional law and "procedure" that has stood the test of time WRT the Guantánamo detainees. They may well have poisoned the well for any Article III prosecutions, and their efforts to set up kangaroo courts may ultimately fall short before real justices.

Cheers,
 

Prof. Lederman:

3. Surveillance of foreign-to-foreign e-mails was arguably covered by FISA (as "electronic surveillance" under 1801(f)(4)), if acquired from storage on a server in the United States, because stored e-mail is neither a "wire communication" nor a "radio communication" under FISA.

I'm not sure I buy that interpretation. As I've stated elsewhere (and see here (in comments) and here), I think a better argument can be made that e-mail is functionally equivalent to the one-way communications of broadcast radio (covered in 50 USC § 1801(f)(3)), or at least if we need to amend the laws to clarify, should be treated the same.

As I pointed out, in broadcast radio, you can't determine the identity of the recipients, or even if they are actually listenting. You can infer the "intended" recipients (and even more so for e-mail than for radio), but you never know. The FISA law recognised this, and specified that a FISA warrant was required only if both sender and all intended recipients were within the United States.

Other similarities arise from the multicast and uni-directional character of both e-mail and broadcast radio.

Should the courts hold that e-mails are equivalent to broadcast radio transmissions, or should Congress amend the laws so that the essential nature of the communication, not the actual technology of the transport of the various legs (which really should be of no legal significance, and which can encompass both RF and "wire" [as well as optical] trasport for various legs nowadays even in a single communication), then there wouldn't be an issue concerning the e-mails. I suggest that here.

Prof. Lederman: I think the fourth clause [§ 1801(f)(4)] is a catch-all for such things as physical snoops, keystroke loggers, and bugging devices...

Cheers,
 

Prof. Lederman:

Perhaps, for example, certain types of surveillance of wire "switches" in the U.S. do not give the NSA the capability, at the outset, to tell if a particular communication involving a "target" in a foreign location has a terminus in the U.S. -- in which case at least some unknown number of the communications intercepted at the domestic switch would be "electronic surveillance" requiring a FISA court order.

For phone communication, it is possible with high (close to 100%) accuracy to determine the geographical locus of the participants.

And even for IP communications, snooped in real-time, you can tell with high certainty the location of the communicating entities as well (just note the location-specific ads that pop up on your screen when you're on the road, for instance). This must be the case, because routing wouldn't work otherwise....

See above comment WRT e-mail. I think a good proxy for the identity and the location of the recipients would be the account info and location of their SMTP server which does the final store-and-forward. And that server can be determined from the domain name (or IP), an essential poart of the recipient address....

Cheers,



Cheers,
 

When a government officer says it's easier to ignore the Constitution than to figure out a way to comply, only a fool would think that the government official is really concerned about saving the cost of hiring more staff, getting some Word template to automate the process, etc.
 

I asked for evidence the TSP was targeting innocent Americans and Mary provided none.

I can help you there. It's not the TSP that's targeting innocent Amerricans, it's the WWP. It's easier to look for evidence of something when the thing exists.
 

the idea of a warrant that has no limits

is a writ of assistance.

Not a search warrant.

There is nothing more American than remembering that, and insisting that the difference be clear, and respected, and that this Nation shall never subject the People to a writ or anything like a writ, ever again. Ever.
 

jpk:

I can help you there. It's not the TSP that's targeting innocent Amerricans, it's the WWP. It's easier to look for evidence of something when the thing exists.

Really?!?!? Now those animal rights activists have gone too far. Ummm.... Oh. "WWP". Nevermind ;-)

Cheers,
 

Arne:

As I pointed out, in broadcast radio, you can't determine the identity of the recipients, or even if they are actually listenting. You can infer the "intended" recipients (and even more so for e-mail than for radio), but you never know. The FISA law recognised this, and specified that a FISA warrant was required only if both sender and all intended recipients were within the United States.

Does this include e-mail exchanges between two individuals. Or are you referring only to bulk e-mails. Because I would not expect terrorists to send out bulk e-mails.

jpk: What is the WWP?
 

Bart,

Congress had never attempted such a thing prior to Vietnam and it is unclear whether Congress thought it was using this provision to enact FISA after Vietnam. Given that the President simply ignored FISA and Congress declined to enforce it in court, the courts have not had an opportunity to opine. So we are left with reading the Constitution for ourselves.

Very good. You and I would agree that Congress may "regulate" but not "direct" the military, but we vastly disagree on what constitutes a "regulation" versus a "direction." Professor Lederman disagrees and says that Congress may direct the military as well.

At present there are no cases that address Congressional "direction" of the miliary (including intelligence services). There is, therefore, no legal definition of Congressional "direction" of the military, or even ruling that such "direction" would be unconstitutional. The courts offer no guidance as to whether you, I, or Professor Lederman are right.

So please, Bart, stop pretending that your personal opinions are settled constitutional law when there is no settled constitutional law at all in this field.
 

Bart, isn't the fact that the Congress has the ability to direct that no funds be used for a particular activity tantamount to the ability to direct the CIC not to engage in such activity?
 

Enlightened Layperson:

Does this include e-mail exchanges between two individuals. Or are you referring only to bulk e-mails. Because I would not expect terrorists to send out bulk e-mails.

It includes 1, 2 or many, in my mind. As I pointed out, the other similarity with radio broadcast is the unidirectional nature of the communication. While you can have an e-mail conversation, it's not real time (and doesn't have to be two-way). But for telephony, there must be a call completion (although call forwarding and/or voicemail bllurs the line just a smidgen). If the called party (or a proxy) is not there, there is no call. And when there is a call completion (or even call attempt), you generally know where the recipient is.

Cheers,
 

TokyoTom:

Bart, isn't the fact that the Congress has the ability to direct that no funds be used for a particular activity tantamount to the ability to direct the CIC not to engage in such activity?

"Bart" insists that they use only the crudest sledgehammer because he wants them to have the wrong tool for the job so that they just give up and don'd do it. The founders weren't that stoopid; had they wanted to hobble Congress thusly (and why would they even do that?), they would have said so, in terms similar to the restrictions on the suspension of habeas.

Cheers,
 

TokyoTom:

Bart, isn't the fact that the Congress has the ability to direct that no funds be used for a particular activity tantamount to the ability to direct the CIC not to engage in such activity?

... in addition to my last comment, "Bart" wants to pretend (when it suits his rhetorical purposes) that the customary formulation that says that Congress has the "power of the purse" means that this is the only power within their means. Such a formulation of the common bromide is clearly wrong, as just a single glance at Title 18 indicates.

And as I've pointed out before, the vast mass of Title 10 is not the UCMJ ... but no one other than him seems to think that most if Title 10 is unconstitutional.

Cheers,
 

enlightened layperson said...

BD: Congress had never attempted such a thing prior to Vietnam and it is unclear whether Congress thought it was using this provision to enact FISA after Vietnam. Given that the President simply ignored FISA and Congress declined to enforce it in court, the courts have not had an opportunity to opine. So we are left with reading the Constitution for ourselves.

Very good. You and I would agree that Congress may "regulate" but not "direct" the military, but we vastly disagree on what constitutes a "regulation" versus a "direction." Professor Lederman disagrees and says that Congress may direct the military as well.

At present there are no cases that address Congressional "direction" of the miliary (including intelligence services). There is, therefore, no legal definition of Congressional "direction" of the military, or even ruling that such "direction" would be unconstitutional. The courts offer no guidance as to whether you, I, or Professor Lederman are right.


I would suggest that there is no need to define my term of "direct." We should instead determine the original meaning of the term "regulate" as it applied to the military when the Constitution was written.

We can start with Hamilton's Federalist 29, as it applied the term regulate to the militia:

It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS."

In sum, regulation of the Army and Navy simply meant that Congress had the power to organize, arm and discipline" the uniformed services.

You will note that there is not even a hint that the term "regulate" meant that Congress was being given the power to command the military to or to not engage in various operations.

In any case, this exercise is largely academic because NSA is not a uniformed service subject to military discipline under this Article I provision.
 

tokyotom said...

Bart, isn't the fact that the Congress has the ability to direct that no funds be used for a particular activity tantamount to the ability to direct the CIC not to engage in such activity?

Congress has the power to defund a unit of the Executive. That would indeed deny the President the ability to command a unit which no longer exists. I am doubtful that Congress' elimination of an Executive unit can be considered commanding that unit.
 

"Bart" DeDicta:

I would suggest that there is no need to define my term of "direct."

Shucks. We were sooooooooo looking forward to an "objective definition".

Cheers,
 

"Bart" DeDicta quotes Federalist #29:

This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS."

This, of course goes to the allocation of these functions between the state and federal gummint (and why the federal gummint should be accorded such functions), not that within the federal gummint.

In addition, the argument that some of these functions need be of expediency or necessity within the federal purview and therefore the federal regulation is warranted, is not to state that these are the only things that should be placed there (and not with the states). And of course, it is silent on the division of such within the federal authority.

IOW, "Bart"'s once again living up to the appellation I've bestowed on him.

Cheers,
 

This comment has been removed by the author.
 

"Bart" DeDicta:

You will note that there is not even a hint that the term "regulate" meant that Congress was being given the power to command the military to or to not engage in various operations.

Well, except for that minor issue of engaging in a war.

But, as has been repeatedly stated, Congress is not seeking to "direct" the military, but to regulate both military and non-military procedure (as well they may).

In addition:

In any case, this exercise is largely academic because NSA is not a uniformed service subject to military discipline under this Article I provision.

If "Bart" is correct here, and we'll assume arguendo he is, then his argument that the preznit, in the role of CinC of the military, has some plenary Article II powers galls to pieces. But "Bart" isn't very good about 'thinking' his 'arguments' through....

Cheers,
 

arne langsetmo said...

BD: This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS."

This...is not to state that these are the only things that should be placed there (and not with the states). And of course, it is silent on the division of such within the federal authority.


Division of Federal Authority - Hamilton is discussing the provisions of Article I. Therefore, it is safe to assume that he is referring to the powers of Congress.

Exclusivity Of This List - You assume that regulate can also mean command despite Hamilton's description to the contrary. However, the drafters had no problem using the term command when they meant to confer powers of command. Article II makes the President the CiC. That is the only allocation of military command power in the Constitution. Article I does not confer any command power to Congress.

Under your theory of implication, the President could likewise claim power over the purse to finance military operations under his CiC authority even though Article I expressly grants power over the purse to Congress and Article II makes no such express grant to the President.
 

arne:

The President as the sole Exective and CiC can command the entire Executive branch in the prosecution of a war. There is no distinction in Article II between uniformed and civilian departments.

In contrast, the Article I provision being discussed limited the Congress' power to regulate the Army and Navy (i.e. the uniformed services).

Read for content and not for cheap snarks and you can avoid playing the fool.
 

Congress has the power to defund a unit of the Executive. That would indeed deny the President the ability to command a unit which no longer exists. I am doubtful that Congress' elimination of an Executive unit can be considered commanding that unit.

It's directing it to disband.

Cheers,
 

Bart, what you are essentially saying is that the NSA is part of the military to the extent that it falls within the President's authority as CiC, but not part of the military in the sense of coming with Congress' authority to regulate the military. How strange! But then again, you have acknowledged that Congress has the authority to regulate the conduct of civilian federal employees. Perhaps, then, FISA is part of Congress' authority to regulate civilian federal agencies.

Arne is also quite correct that Hamilton was talking about the state militia, which would be under the command of state governments except under extraordinary circumstances. In fact, Article I, Section 8, Clause 16 gives Congress authority "To provide for organizing, arming and training the [state] Militia," the exact words Hamilton uses in defending federal authority over state militias. By contrast, Article I, Section 8, Clause 14 gives Congress authority "To make Rules for the Government and Regulation of the land and naval Forces." You are using a discussion of Clause 16 to define the meaning of Clause 14. I find your reasoning unpersuasive.
 

"Bart" DeDicta:

["Bart", quoting Fed. #29]: This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS."

[Arne]: This...is not to state that these are the only things that should be placed there (and not with the states). And of course, it is silent on the division of such within the federal authority.

["Bart"]: Division of Federal Authority - Hamilton is discussing the provisions of Article I. Therefore, it is safe to assume that he is referring to the powers of Congress.


If this be so, then this quote is irrelevant at best and no help to your so-called 'argument'.

["Bart"]: Exclusivity Of This List - You assume that regulate can also mean command despite Hamilton's description to the contrary.

No, I don't. That's your "straw man" that's a dead horse you keep flogging (just to mangle metaphors a bit....)

But I fail to see anywhere there "Hamilton's description to the contrary". Do you need to tritrate the Haldol up a notch?

Cheers,
 

The President as the sole Exective and CiC can command the entire Executive branch in the prosecution of a war. There is no distinction in Article II between uniformed and civilian departments.

That is not true. Article II, Section 2 clearly says that the President is "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." Sounds like a distinction between military and civilian to me. Your extremely broad reading of Article II, combined with a narrow reading of Article I is an odd approach for a purported "strict constructionist."
 

"Bart" DeDicta:

Under your theory of implication, the President could likewise claim power over the purse to finance military operations under his CiC authority even though Article I expressly grants power over the purse to Congress and Article II makes no such express grant to the President.

How do you get that from anything I wrote? Please explain and be clear.

But FWIW, on a more general note, it is an open question as to whether the preznit is compelled to spend money appropriated by Congress, and it's quite clear that Congress, by legislation, may specify procurement procedures, etc., but leave the actual procurement (including details as to vendors, price, etc.) with the executive. This is as it should be.

Cheers,
 

"Bart" DeDicta:

The President as the sole Exective and CiC can command the entire Executive branch in the prosecution of a war. There is no distinction in Article II between uniformed and civilian departments.

In contrast, the Article I provision being discussed limited the Congress' power to regulate the Army and Navy (i.e. the uniformed services).

Read for content and not for cheap snarks and you can avoid playing the fool.


OK (this is just too friggin' easy, folks, it's like shooting fish in a barrel):

"Bart": "The President as the sole Exective and CiC can command the entire Executive branch in the prosecution of a war."

U.S. Constitution, Article II:

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

"Bart": "[T]he Article I provision being discussed limited the Congress' power to regulate the Army and Navy (i.e. the uniformed services)."

U.S. Constitution, Article I, Section 8:

"[Congress shall have power...] To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

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

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

To provide and maintain a navy;

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

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;"

Gee, that was easy. "Bart" ought not start drinking so early in the week ... or in the morning. Anyone here want to give me some more rigourous mental calisthenics?

Cheers,
 

Honestly, Mary lost me in that post after the first couple paragraphs.

Bart, this is called "cognitive dissonance." It explains why you are so impervious to counter-argument.

Anytime someone makes a persuasive case against you, your brain switches to "tilt" mode.

So your 'confident manner' rests on a foundation of malfunction.
 

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