Balkinization  

Thursday, July 10, 2008

The New FISA Law and the Construction of the National Surveillance State

JB

We have been covering the features of the new FISA act (here, here, here, and here), and I won't repeat that analysis here. I continue to think that the new procedures in Title I are far more worrisome than Title II, the immunity for telecom companies. But in this post I want to say a few words about the larger meaning of what has happened.

First, its worth watching to see if President Bush issues a signing statement to the legislation that reserves the right to disregard any provisions requiring accountability and reporting to Congress and the courts. He has done so before with other legislation, for example, regarding national security letters. If President Bush does issue such a signing statement, even after having repeatedly pressed for this bill, Democrats will look particularly foolish; for it is these provisions (and the FISA exclusivity provision) they have pointed to as the major reason why it is acceptable to vote for the bill. Of course, Bush will only be in office for about 200 more days, so he will have comparatively few opportunities to act on his threat to disregard the accountability and reporting provisions. Thus the real issue is whether the next Administration will continue to hold the same views as Bush/Cheney/Addington on the President's Article II powers to disregard legislation. If the next Administration does hold such views, even the FISA exclusivity provision won't mean much, because the next President will simply disregard it, much as Bush disregarded FISA's already existing exclusivity provision.

Second, the passage of this bill looks very much like a repeat of 2002, when the Democrats, eager not to be cast as weak on national security, caved on supporting an authorization for the war in Iraq, or 2006, when they caved on the Military Commissions Act. You might think that they had learned their lessons by now. When you give George Bush what he wants, people don't think you are strong on national security. They think you are weak because you are a pushover. If you can't stand up to a lame duck President with 30 percent approval ratings, who are you ever going to stand up to?

I note that one of the great architects of the give-Bush-whatever-he-wants-so-he-won't-call-us-weak strategy in 2002 was Tom Daschle, then the Democrats' leader in the Senate. As you may recall, Daschle's wisdom was rewarded by the loss of is own own Senate seat. These days, he is one of Barack Obama's closest advisors. Perhaps it is only a coincidence that Obama has taken the positions he has taken. Indeed, as the presumptive head of his party Obama effectively signaled by his support that the Democrats should not try to block this bill.

Third, you may still be wondering how George Bush triumphed, given that he has almost no credibility or clout remaining. My answer to this question is that quite apart from the natural cowardice of substantial segments of the Democratic party in the House and Senate, there is a far larger development going on. Let me say a few words about what that is.

Sandy Levinson and I have noted previously that we are in the midst of the creation of a National Surveillance State, which is the logical successor to the National Security State. And we have noted that, like the National Security State before it, the construction of this new form of governance will be a joint effort by the two major parties. It so happens that in 1947, when the National Security Act was passed, the Democrats controlled the Presidency while the Republicans controlled Congress. In this case it is the reverse. But the larger point is that both major political parties are committed to the build up of surveillance programs and technologies for purposes of security and the delivery of government services. We are going to get some form of National Surveillance State. The only question is what kind of state we will get. As of right now, it looks like we will get one that is far less protective of civil liberties than we could have gotten. Some of the new features of the surveillance bill have sunset provisions, and others may be altered through amendment if and when the Democrats take the White House. Still the fact that Barack Obama ended up supporting this bill is not particularly good news.

Indeed, the fact that Congress is now giving the President the authority to do much of what he was probably doing (illegally) before suggests that Bush's illegal program has to a large degree been ratified by Congress. If you want a historical example, although not a perfect one, it is Lincoln's decision to (illegally) suspend habeas corpus, which was later followed by Congress's ratification of Lincoln's suspension. It is true as a formal matter that Congress has not officially approved of what Bush has done, and it has granted immunity only to the telecom companies, and not to those Administration officials who, in effect, conspired to violate FISA. But at this point I am doubtful that the next Administration will try to prosecute former officials for violating FISA, especially now that Congress has effectively blessed the formerly illegal programs. If this is not a ratification in form, it is surely one in substance.

The lesson is that there are at least two different ways for the executive to increase his power. One is when the President seizes power through unilateral action. The second is when Congress gives it to him. In 2001 Bush chose the first path. In 2008 Congress (controlled by the other party no less!) is offering the second path. In both cases, the executive becomes more powerful. To be sure, the new bill does impose new reporting and accountability requirements. But, as noted before, let's see if the current Administration-- and the next one-- tries to wriggle out of them. The larger point is that two parties are not in fact dividing over the issue of Executive power. Both parties seem to like more and more executive power just fine. They just have adopted different ways of achieving it. One can expect far more Congressional cooperation if a Democratic Congress is teamed with a Democratic President. The effective result may not be less Presidential power to run the National Surveillance State. It may be in fact be more.

I repeat. If you are worried about the future of civil liberties in the emerging National Surveillance State, you should not try to console yourself with the fact that the next President will be a Democrat and not George W. Bush. It's worth remembering that the last Democratic President we had, Bill Clinton, was not a great supporter of civil liberties. (I was therefore amused to see that his wife, Hillary Clinton decided at the last minute to vote against the bill. Good for her, but I have difficulty believing that the choice was a purely principled one). The mere fact that the next President will be a Democrat-- even a liberal Democrat-- is no guarantee that he will work hard to protect civil liberties in the emerging National Surveillance State. It is not enough to say that Obama has taught constitutional law before he became a United States Senator; so did Bill Clinton before he ran for governor of Arkansas.

Democrats (and Republicans) who care about civil liberties should put as much pressure as they can on the next President-- especially if he is a liberal Democrat-- to make sure that he truly respects civil liberties, and that he builds adequate protections into the emerging National Surveillance State. Making a campaign commitment to amend the worst features of the new surveillance bill in the next Administration would be a good start.

Comments:

This comment has been removed by the author.
 

Presidents with 30% approval ratings do not bully Congress into retrenching their own exercises of power. The super majority of the Congress which supported gutting FISA to ratify the TSP must have personally thought it a good idea and/or believed their constituents thought it was a good idea.

There is evidence that even liberal Dems disagreed with many of their constituents and personally thought the TSP to be a good idea. I would note that the Dem members of the Gang of Eight ratified the TSP in private from the outset through active support or inaction without the prospect of facing the voters over the issue.

In fact, the FISA idea to treat military intelligence gathering like a civilian criminal investigation and to turn it over from the elected branches to the judiciary proved to be unworkable and was soundly rejected by Congress when it proved to be so and placed the country in danger.

It is very unfortunate that the recent Boumediene decision is going down that same mistaken path, but cannot be so easily reversed when it proves to be an unworkable mess and a danger to the country.
 


It is very unfortunate that the recent Boumediene decision is going down that same mistaken path, but cannot be so easily reversed when it proves to be an unworkable mess and a danger to the country.


the real unfortunate part is that yet another liberty this country was created to protect is now completely in the hands of Justice Kennedy, who will have to once again bravely stand up for the Constitution and the rule of law. Those who eviscerated the Fourth Amendment yesterday have violated their oath to support and defend the Constitution, and should be removed from office. Let's just hope Justice Kennedy has not forgotten what he swore.
 

yes ..yes a supermajority of congress ... but meanwhile ..back in reality land .. a super-super-majority of the congress' constituents have shown they
disapprove of congress itself ..with only 9% approving .. regardless of what the congress might think was a good idea ..

congress didn't get their idea this version of FISA was a good bill from listening to their constituents ..

they got the idea while opening and cashing checks from the telecoms ...

feckless wonders ... aye ..
 

nerpzillicus said...

Those who eviscerated the Fourth Amendment yesterday have violated their oath to support and defend the Constitution...

4th Amendment does not require the President to obtain warrants to conduct surveillance of the agents of foreign groups in or outside of the United States for the primary purpose of intelligence gathering. See, e.g., United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), cert. denied, 454 U.S. 1144 (1982); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc), cert. denied, 419 U.S. 881 (1974); United States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S. 916 (1974). See also In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002); United States v. Buck, 548 F.2d 871 (9th Cir.), cert. denied, 434 U.S. 890 (1977).

I expect that your next retort will be that the TSP is targeting innocent Americans. Please restrain yourself unless you can provide a single scintilla of evidence of this claim.
 

The Democrats are certainly responsible for contributing to the creation of a less-good National Surveillance State, but I'm not sure they realize that they are doing it, or that their motivation is to shift the balance of power to the executive. Rather, I think the creation of an NSS is a byproduct of the Democratic party's ambition to recapture the White House.

I don't think it makes sense to think of this in terms of what a majority wants--Democrats think that they can neutralize the GOP on this issue without losing voters (because the GOP offers less than nothing to voters who would care about this). It's purely a political gambit, coldly calculated to appeal not to a majority, but to the thin wedge of voters who might be persuaded to change their votes because of this issue.

Professor Balkin, it seems to me that the most effective way for the populace to deal with, and shape, the emergent surveillance state is to accept it, and start our own. While the example of YouTube may seem facile, it may be that the only way to de-fang governmental surveillance is to constantly monitor and document things ourselves, so as to have a competing record to which we can refer. It may be fruitless to hope that we can prevent an insidious NSS from growing merely through participation in our broken political process.
 

I expect that your next retort will be that the TSP is targeting innocent Americans. Please restrain yourself unless you can provide a single scintilla of evidence of this claim.

Thanks to the Congress and the President, such information is sparse. Luckily for you, the incompetence of the administration has provided to us the Al-Haramain Islamic Foundation, Inc v Bush case, in which an accidentally disclosed classified document that showed the government, without following FISA or the Fourth Amendment, spied on an Oregon non-profit's directors and their US citizen attorney's communications. Therefore, I feel quite confident in saying, yes, in at least one case, American citizens have been targeted without respecting their rights. So I assume you will concede now that your ridiculous defense of this act is improper.

Furthermore, Title one allows collection of communications, en masse, without regards to the citizenship of the illegally spied upon persons. So, there will be communications swept up that will be solely between US citizens. The law is despicable, and if the Court can find a way to have enough information to review the executive and telecom's actions, hopefully will be held as a violation of the Fourth Amendment.

After Justice Scalia read the Second Amendment's first clause as not to limit the right to bear arms to militia purposes, one would hope he will read the Fourth's command that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" just as strongly.
 

I continue to think that the new procedures in Title I are far more worrisome than Title II, the immunity for telecom companies.

While I agree that the potential for future wrong via Title 1 is great, the present wrong done by Title 2 to the rule of law and the principle of equal justice seem more serious to me.
 

I'm trying to recall any occasion where Congress was effectively protective of civil liberties.
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Congress follows the executive, and punts decisions either to administrative agencies or to courts. The "ideal" for a Congressman is to be unaccountable, yet elected.
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On the matter of government surveillance, I think legislation is completely and totally ineffective. Legislation could not have prevented the snooping that precipitated the Church Committee, and FISA, passed in its wake, couldn't prevent it either.
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The people are roughly indifferent. It's not intrusive when the victim is unaware.
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This isn't a "free" country. It's a "domesticated" country.
 

Well I'm with Sen. Feingold on this one: the real issue now is what the 111th Congress will do about it.
 

nerpzillicus said...

BD: I expect that your next retort will be that the TSP is targeting innocent Americans. Please restrain yourself unless you can provide a single scintilla of evidence of this claim.

N: Thanks to the Congress and the President, such information is sparse. Luckily for you, the incompetence of the administration has provided to us the Al-Haramain Islamic Foundation, Inc v Bush case, in which an accidentally disclosed classified document that showed the government, without following FISA or the Fourth Amendment, spied on an Oregon non-profit's directors and their US citizen attorney's communications.


The Al-Haramain Islamic Foundation are not "innocent Americans" and have been internationally identified as an al Qaeda fundraising front group. As agents of al Qaeda, the Al-Haramain Islamic Foundation qualifies as an agent of a foreign group and the alleged surveillance performed was not offered in their criminal trial which means that it was properly meant to gather intelligence against al Qaeda. Consequently, the 4th Amendment never required a warrant to conduct intelligence gathering against the Al-Haramain Islamic Foundation.
 

The Al-Haramain Islamic Foundation are not "innocent Americans" and have been internationally identified as an al Qaeda fundraising front group. As agents of al Qaeda, the Al-Haramain Islamic Foundation qualifies as an agent of a foreign group and the alleged surveillance performed was not offered in their criminal trial which means that it was properly meant to gather intelligence against al Qaeda. Consequently, the 4th Amendment never required a warrant to conduct intelligence gathering against the Al-Haramain Islamic Foundation.

I guess you're right - I failed to read the Fourth properly: "The right of the innocent [ed:BDP] people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"

I apologize. I thought it was the liberals who don't follow the plain text of the constitution.
 

PS, and FISA, the exclusive means (at least until yesterday's debacle) for surveillance, was not complied with either.
 

nerpzillicus:

The text of the 4th Amendment only requires a warrant for unreasonable searches where the person has a privacy interest, not for all surveillance. To date, the federal courts have unanimously held that intelligence gathering against foreign groups is not an unreasonable search under the 4th Amendment requiring a warrant. al Qeada has no constitutional privacy interest which the 4th Amendment protects...unless, of course, the Boumediene Five decide to create one.
 

To date, the federal courts have unanimously held that intelligence gathering against foreign groups is not an unreasonable search under the 4th Amendment requiring a warrant.

Maybe so, but deciding a priori that a group is guilty of association with a foreign group seems more like a witchhunt than a legal process.
 

pms:

This is a military operation, not a legal process. The Republic has conducted military intelligence gathering against foreign groups in the United States since the Revolution without sacrificing the People's liberties.

If anyone can provide me evidence that the President is engaged in spying on innocent Americans ala Nixon and Clinton's FBI file perusal, then I will join Rep. Kucinich's impeachment drive.

However, IMHO, if the President declined to conduct intelligence gathering against groups like the Al-Haramain Islamic Foundation, he should be impeached for gross dereliction of duty.
 

Mr. DePalma,

The particular people the spying was done upon were US citizens, in US citizen to US citizen phone calls. Please stick to that fact in your further analysis.

And these people are innocent - until proven guilty. Another one of those quaint American principles that seems to be disappearing...
 

nerpzillicus:

The citizenship of the agent of a foreign group is irrelevant.
 

To date, the federal courts have unanimously held that intelligence gathering against foreign groups is not an unreasonable search under the 4th Amendment requiring a warrant.

FISA, however, does impose a statutory requirement (or at least did at the time).

The Al-Haramain Islamic Foundation are not "innocent Americans" and have been internationally identified as an al Qaeda fundraising front group. As agents of al Qaeda, the Al-Haramain Islamic Foundation qualifies as an agent of a foreign group

Good, then, the NSA should have been able to get a FISA warrant for them. Why wasn't it done?
 

-- If anyone can provide me evidence that the President is engaged in spying on innocent Americans ala Nixon and Clinton's FBI file perusal --
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What's the evidence of Nixon or Clinton spying on innocent Americans? AFAIK, all of the searching was done with suspicion. See, e.g., minority views in the Church Committee reports.
 

-- the NSA should have been able to get a FISA warrant for [al Haramain]. Why wasn't it done? --
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There's no evidence on the record either way - it's entirely possible that there was a FISA warrant. The plaintiff aims to find out from the government, one way or the other, and if the surveillance was without a warrant, then plaintiff will/would have had a 50 USC 1810 case.
 

-- To date, the federal courts have unanimously held that intelligence gathering against foreign groups is not an unreasonable search under the 4th Amendment requiring a warrant. --
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You've obviously read, and are familiar with the Truong and Keith cases, so I'm perfectly comfortable with accusing you of engaging in deliberate deception and intellectual dishonesty, because you purposely avoid mentioning that some of the warrantless evidence in each of those cases was suppressed, because parts of the warrantless searches and surveillance were in violation of the 4th amendment, and were NOT inside the president's Article II power.
 

Thanks cboldt.

The Keith case favor my position, Mr. DePalma, as an American citizen, engaged in what can only be rightfully called terrorism, had those charges thrown out because of a wiretap without a warrant, in violation of the Fourth Amendment.

As with your Boumediene analysis, you simply assume the person is an agent of a foreign power (or unlawful enemy combatant) but never address the situation if he/she is not. As you demanded of me previously, cite one piece of evidence supporting the notion that a US citizen can be spied on based on the administration's say so that he is an agent of a foreign power, and nothing else.
 

To date, the federal courts have unanimously held that intelligence gathering against foreign groups is not an unreasonable search under the 4th Amendment requiring a warrant. al Qeada has no constitutional privacy interest which the 4th Amendment protects...unless, of course, the Boumediene Five decide to create one.

The reality is as follows: it is possible that Bart's construction of the Fourth Amendment will turn out to be adopted (some lower courts have certainly adopted it), but the Supreme Court has actually been very careful NOT to expressly adopt it, instead reserving the issue in every case that touched upon it (most notably the Keith case).
 

cboldt:

As I stated, the holding in all of the cases which I cited was that the 4th Amendment does not require a warrant for surveillance of agents of foreign groups so long as the primary purpose is intelligence gathering. However, the 4th Amendment requires a warrant for conduct a search for the primary purpose of gathering evidence for a criminal prosecution.

The Truong court held that evidence gathered during warrantless intelligence gathering was admissible in the defendant's criminal trial (something with which I disagree and which DOJ does no follow [see Padilla]), but when DOJ became involved in the Truong surveillance, the purpose transitioned to gathering criminal evidence and that evidence was suppressed.

None of these cases held that the intelligence gathering violated the 4th Amendment.
 

Mr. DePalma,

The surveillance on Truong did not violate the Fourth Amendment because of the agent of a foreign power exception, but Truong was not a US citizen. The case is inapposite to the situation we are discussing.

This was why FISA was created - by using FISA, an administration could obtain a warrant for US citizen surveillance, after a demonstration that he or she is an agent of a foreign power. Thus FISA gave the President a mechanism to comply with the Fourth Amendment vis-a-vis national security surveillance directed at US persons. Without complying with FISA, the surveillance of a citizen violates the Fourth Amendment.

Further, while the exclusionary rule is one method of enforcing Fourth Amendment rights, there is no reason why it would be the exclusive manner. Keepoing the surveillance out of a criminal proceeding does not erase the constitutional violation.
 

Prof. Balkin:

Second, the passage of this bill looks very much like a repeat of 2002, when the Democrats, eager not to be cast as weak on national security, caved on supporting an authorization for the war in Iraq, or 2006, when they caved on the Military Commissions Act. You might think that they had learned their lessons by now. When you give George Bush what he wants, people don't think you are strong on national security. They think you are weak because you are a pushover. If you can't stand up to a lame duck President with 30 percent approval ratings, who are you ever going to stand up to?

Glenn Greenwald addresses this cogently here.

Cheers,
 

Nerpzillicus:

After Justice Scalia read the Second Amendment's first clause as not to limit the right to bear arms to militia purposes, one would hope he will read the Fourth's command that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" just as strongly.

Don't count on it. Scalia sees things that no one else can see. Such as how the Eleventh Amendment says precisely what it does not say, namely that citizens of a state may not sue their own state in federal court.

Cheers,
 

["Bart" DeDicta]: I expect that your next retort will be that the TSP is targeting innocent Americans. Please restrain yourself unless you can provide a single scintilla of evidence of this claim.

[Nerpzillicus]: Thanks to the Congress and the President, such information is sparse. Luckily for you, the incompetence of the administration has provided to us the Al-Haramain Islamic Foundation, Inc v Bush case, in which an accidentally disclosed classified document that showed the government, without following FISA or the Fourth Amendment, spied on an Oregon non-profit's directors and their US citizen attorney's communications.

["Bart'}: The Al-Haramain Islamic Foundation are not "innocent Americans" and have been internationally identified as an al Qaeda fundraising front group.


Yes, pretty much like all the Guantanamo detainees have been determined to be "enemy combatants". Because the preznit said so. And heck, that's good enough for me, should be good enough for them.....

Cheers,
 

I think I get your point now, Bart. You're saying:

1. If you are just trying to gather intelligence on Americans, you don't have to get a warrant because they're obviously agents of a foreign power.

2. You /would/ have to get a warrant to investigate Americans if the purpose of your investigation was to get evidence to use in a criminal trial--at least if you wanted the evidence to be admissible--, but since Americans are the enemy, and the enemy can be detained and punished outside of the criminal system, you don't have to bother with that.

Did I get that right?
 

-- Without complying with FISA, the surveillance of a citizen violates the Fourth Amendment. --

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Truong's co-conspirator, Humphrey, was a US citizen, and he too was subjected to warrantless surveillance.

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I think all we can say is that non-compliance with FISA is non-compliance with FISA. That non-compliance may be within Article II power, but that'd be a fact specific inquiry. I don't see any scenario where "blanket" or broad surveillance (conducted in the US) can be inside Article II. There has to be some reason to have suspicion of foreign intelligence information first.

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The Fourth amendment rears its head -ONLY IF- an intrusion is outside of Article II. The Truong case describes this boundary pretty well. Some evidence came in, other evidence was suppressed. The suppression had no effect on the outcome.
 

"Bart" DeDicta:

The text of the 4th Amendment only requires a warrant for unreasonable searches.....

Stop right there. I've explained this to you once before: the Fourth Amendment requires warrants, and warrantless searches are per se illegal -- at least in most circumstances; the "exigent circumstances" exceptions being an [in my mind, unwarranted, so to speak] anomaly -- the hallmark of a "reasonable" search being one justified by a warrant describing in particular the person(s) or places to be searches or seized, supported by oath or affirmation, etc.).

Please take the time and effort to learn from what other people post here. Stating that "unreasonable" searches are the only ones that require warrants just betrays your ignorance. Rather, such are prohibited by the plain text of the Constitution, period. Thanks.

Cheers,
 

"If anyone can provide me evidence that the President is engaged in spying on innocent Americans ala Nixon and Clinton's FBI file perusal, then I will join Rep. Kucinich's impeachment drive...."

"... but you're not entitled to any access to evidence to show this to be so. Heads I win, tails you lose. Be thankful I grant you at least that opportunity...."

Cheers,
 

A hypothetical fact-specific scenario of "outside FISA, but inside Article II."

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Play the equivalent of the Aldrich Ames investigation today, where the administration has NO contact with FISC at any point during its investigation. The target of the investigation is a person in the US, and uses communications means that don't fit the 1802 requirements, yet the government does not (obviously, no contact with FISC) get a warrant.

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As long as there was independent cause to suspect foreign intelligence information is at play, the Courts would NOT suppress the evidence. Yet, it would be inescapable that a FISA violation had occurred.
 

"Bart" DeDicta:

As I stated, the holding in all of the cases which I cited was that the 4th Amendment does not require a warrant for surveillance of agents of foreign groups so long as the primary purpose is intelligence gathering....

But you cite In re: Sealed Case, which actually goes on at length to criticise what they see as the false distinction between cases "primar[ily for] intelligence gathering" and those involving criminal prosecution, rightly noting that many if not most foreign intelligence surveillances involve suspected activities that are criminal under U.S. law (and if they aren't, the need for surveillance seems to be less and less necessary, particlarly when weighed against privacy interests). The FIS Court of Appeals, in this case, made much of the parallel between the FISA provisions (violated by the maladministration in the TSP) and those involved in traditional Fourth Amendment warrants in declining to strike down FISA as unconstitutional. If the protections of FISA were not followed, it's not clear this court would have accepted the surveillance as acceptable. This has been pointed out to you repeatedly over the last couple of years. You have yet to acknowledge it.

Cheers,
 

-- If the protections of FISA were not followed, it's not clear this court would have accepted the surveillance as acceptable. --

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In re: Sealed Case is about the conditions that FISC would put on a warrant. FISC thought the warrant was well-justified as a exercise in obtaining foreign intelligence information, and was trying to protect/prevent the possibility of a District Court finding that the warrant was insufficient to support a criminal prosecution, should one be mounted.

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IOW, the surveillance was fine as a matter of obtaining foreign intelligence information - no question there. The issue was whether or not a criminal investigator should be permitted to drive the foreign intelligence surveillance bus.

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That said, In Re: Sealed case also covers ground where the FISCR would have held an ostensibly foreign intelligence surveillance to be in violation of the fourth amendment.
 

cboldt:

The Fourth amendment rears its head -ONLY IF- an intrusion is outside of Article II.

Where does it say that "Article II powers" trump the Fourth Amendment? Or alternatively, that the Fourth Amendment doesn't encompass "Article II powers".....

Or is it only some "Article II powers" that have this characteristic? If so, then where are these more specific powers enumerated?

Thanks in advance.

Cheers,
 

This comment has been removed by the author.
 

cboldt:

[Arne]: -- If the protections of FISA were not followed, it's not clear this court would have accepted the surveillance as acceptable.

[cboldt]: In re: Sealed Case is about the conditions that FISC would put on a warrant.


Read the last part. It also involved a facial challenge to FISA on Fourth Amendment grounds. This challenge was rejected, on the basis primarily of the reasoning I described above.

Cheers,
 

-- Where does it say that "Article II powers" trump the Fourth Amendment? --

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It's not a matter of "trumping." It's a matter of "different," albeit there is a almost inevitable overlap.

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-- Or alternatively, that the Fourth Amendment doesn't encompass "Article II powers" --

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Some (probably most), but not all, Article II surveillance activities are in the sphere of the Fourth Amendment.

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-- Or is it only some "Article II powers" that have this [trump the 4th Amendment] characteristic? --

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It's not the power that trumps. A given surveillance activity and follow-on action can be completely in an Article II realm, or can be a little of both, "foreign intelligence" and "criminal," or can be solely "criminal." A court will decide the propriety of introducing evidence (or conducting the activity, if THAT can be caught) depending on the basis for snooping in the first place. A warrantless "foreign intelligence" snoop has to be justified, and then, at some point, the court has to decide if a warrant is required in order to support a criminal case and conviction. The function of FISA and FISC is to form that bridge.

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I can't think of an example, and this is probably an inartful way of stating it (meaning I am trying to simplify a thought - not make a statement of fact), but "foreign intelligence information" is by itself useless in a criminal prosecution. If the government tried to being a criminal case with ONLY warrantless foreign intelligence evidence obtained in the US, it would lose on 4th amendment grounds.

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-- If so, then where are these more specific powers enumerated? --

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Court cases that apply the 4th amendment, where there is also an element of foreign intelligence surveillance.
 

-- Read the last part. It also involved a facial challenge to FISA on Fourth Amendment grounds. This challenge was rejected, on the basis primarily of the reasoning I described above. --
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I have, many several of times. That's why I say that even In Re: Sealed Case draws a line that indicates crossing a 4th amendment boundary.
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Some people imply that In re: Sealed case implies that "foreign intelligence" is some sort of all powerful "get out a warrant requirement" card, but even that case is far from that.
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The concise shorthand for In re: Sealed Case is a moving from "the primary purpose" to "a significant purpose" when importing evidence from a snoop from foreign intelligence to criminal court. That's very much an open issue, and it's a mistake to think In re: Sealed Case is the last word. That shift (to "a significant purpose") is currently on appeal (by the government, who lost below) in a different case.
 

An ever so slight addition may clarify my "The Fourth amendment rears its head -ONLY IF- an intrusion is outside of Article II."
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The Fourth amendment rears its head -ONLY IF- an intrusion is partly outside of Article II.
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Obviously, my posts often omit substantial assumptions - resulting in expressions that are highly ambiguous, and sometimes naturally taken for the opposite of what I'm thinking. So goes the war.
 

-- If the protections of FISA were not followed, it's not clear this court would have accepted the surveillance as acceptable. --

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The FISC has been quite protective that it's jurisdictional grant NOT be violated. It made affirmative efforts to prevent contact with TSP-related surveillance.

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That's not to say that TSP is outside of Article II (I think it is, but set that aside for a bit) - what FISC was protecting was criminal prosecutions that were strengthened by adherence to the FISA provisions. If cases bootstrapped by the extra-statutory TSP activity were to contaminate FISC, it would taint the FISC itself (as operating outside of its jurisdictional grant), and any cases where FISA warrants were material to sustain a criminal case.

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So, rejection of surveillance by FISC cannot be taken as "the surveillance is outside of Article II." FISC is only empowered to decide "in or out of FISA."
 

For other reasons, I'm re-reading 50 USC 1806 - Use of information [obtained under FISA], and I'm thinking that a Court would be hard pressed to admit evidence that was "in" an Article II snoop, but outside the structure of FISA.
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The language of 50 USC 1806 directs the criminal courts "If the United States district court pursuant to subsection (f) of this section determines that the surveillance was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained."
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In this context, "lawful" means withing statutory bounds, although I'm sure the government would argue otherwise.
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In any event, this provision reminds me of my sentiment back in Dec 2005, wondering how the government intended to USE the evidence obtained by skirting FISA. It strikes me as reckless, to risk suppression of evidence over a long term. What the heck is to be done with the evidence?
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I think all reasonable people excuse a term of "surveillance gone wild" in the wake of 9/11, but 3 years worth of secret surveillance is more than pushing it.
 

Truong's co-conspirator, Humphrey, was a US citizen, and he too was subjected to warrantless surveillance.

Humphrey was only surveilled in his office at the US Information Agency, on videotape, not in his home or personal phone. I think you would agree this type of surveillance is inapposite to what we're talking about.

I believe this is an open question (wiretapping US citizen with no warrant, FISA or otherwise). I would have to say Keith would see it as a domestic surveillance action. Using FISA, you can get a probable cause warrant that the US person is an agent of a foreign power, but without this warrant, I'm betting surveillance is unconstitutional.
 

-- I believe this is an open question (wiretapping US citizen with no warrant, FISA or otherwise) --
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I'll stick by "it depends." In US v. bin Laden, a US citizen overseas was subjected to surveillance and physical entry w/o a warrant, no evidence was suppressed. And granted, Ames was tapped after FISA was passed; but I doubt the same case would result in acquittal if FISA wasn't followed.
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But as I noted recently here (not sure if it's on this post) 50 USC 1806 would be put at risk by reckless disregard of FISA. The statute requires courts to suppress evidence not obtained "lawfully," which likely means "in accordance with the statute."
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The argument keeps looping back to FISA being a house of mirrors as representing some sort of statutory limit.
 

I am troubled by this assumption by both Bart and Cboldt that the government can surveille to its heart's content and so long as it doesn't prosecute, no harm is done.

One of the most important revelations in the Church hearings was the amount of surveillance taking place outside of any sort of control or requirement of probable cause precisely because it was not being used to prosecute and hence the exclusionary evidence rule did not come into play. Without a statute such as FISA, surveillance done without the intent to prosecute is, in effect, unregulated surveillance.

I reject the argument that the government can listen to all my telephone conversation and so long as it does not prosecute me, no harm is done. The violation of privacy is, in itself, harm. And such information can be abused in more secret, non-prosecutorial forms, such as blackmail.

Nor am I convinced by the argument that so far there has been no proof of abuse by the Bush Administration. Another important revelation of the Church hearings was that it wasn't just the work of a few bad Presidential apples. Given unregulated wiretap power, anyone will abuse it. Maybe George Bush is a rare exception to this rule, but the rule remains sound.
 

-- I am troubled by this assumption by both Bart and Cboldt that the government can surveille to its heart's content and so long as it doesn't prosecute, no harm is done. --
.

There is an oh-so subtle difference between our points of view. Some readers catch it, others don't.
 

I think the government DOES surveil to its heart's content, and lies its ass off about it. I characterize those who think a mere Congressional statute can restrain determined snoopers as naive boobs. The secret snooper is free to operate, as long as he avoids court. I think the FISA statute works fine for the times the secret snooper decides to take a case to court, but there is no way on God's green earth that FISA restrains snooping. FISA is one-sided in practice.
 

cboldt:

I note you didn't address my question, which is what should happen if and when "Article II powers" activities collide with the Fourth Amendment.

It's not the power that trumps. A given surveillance activity and follow-on action can be completely in an Article II realm, or can be a little of both, "foreign intelligence" and "criminal," or can be solely "criminal."...

As I said, one of the latest courts to deal with this (In re: Sealed Case) looked rather sceptically on such a distinction and "line-drawing".

... A court will decide the propriety of introducing evidence (or conducting the activity, if THAT can be caught) depending on the basis for snooping in the first place. A warrantless "foreign intelligence" snoop has to be justified,...

How?!?!? To whom?!?!?

... and then, at some point, the court has to decide if a warrant is required in order to support a criminal case and conviction. The function of FISA and FISC is to form that bridge.

Oh, piffle. FISA was passed to put limits and oversight on -- well ... you know ... things like ... foreign intelligence surveillance.

It wasn't to facilitate any criminal prosecutions; that's what the Fourth Amendment is for (amongst other things, IMNSHO).

It applies whether or not a criminal prosecution is ever sought. To suggets otherwise is disingenuous.

Cheers,
 

cboldt:

I have, many several of times. That's why I say that even In Re: Sealed Case draws a line that indicates crossing a 4th amendment boundary.

Some people imply that In re: Sealed case implies that "foreign intelligence" is some sort of all powerful "get out a warrant requirement" card, but even that case is far from that.


That's not what I either said or implied. What I said is that the court thought the procedural requirements of the FISA law sufficiently similar to those developed for traditional criminal court Fourth Amendment implementation so as to not violate the Fourth Amendment (perhaps in the way that "adequate alternatives" might have sufficed to rectify the loss of nominal habeas proceedings prior to Boumediene).

The concise shorthand for In re: Sealed Case is a moving from "the primary purpose" to "a significant purpose" when importing evidence from a snoop from foreign intelligence to criminal court.

No. This was just a pragmatic and realistic assessment of the sitation; the court thought that such lines as "primary" and "significant" were not particularly seful given the very intertwined nature of counterintelligence and law enforcement efforts.

As long as FISA was being followed, and FISA looked "enough" like traditional Fourth Amendment procedures (given the particular requirements and exigencies of counterintelligence), they said this was "close enough".

That's very much an open issue, and it's a mistake to think In re: Sealed Case is the last word. That shift (to "a significant purpose") is currently on appeal (by the government, who lost below) in a different case.

Do you have a cite?

Cheers,
 

-- I note you didn't address my question, which is what should happen if and when "Article II powers" activities collide with the Fourth Amendment. --

.

It'll be a fact-specific collision, and the Court will decide.

.

If the case can be kept out of court, the collision and decision will be avoided. See Judge Walker's recent al Haramain decision for one mechanism for the collision avoidance path.
 

A warrantless "foreign intelligence" snoop has to be justified,...
-- How?!?!? To whom?!?!? --
.
The government has to show the court evidence that demonstrates how it became suspicious that the target was a source of foreign intelligence information.
 

cboldt:

That's not to say that TSP is outside of Article II (I think it is, but set that aside for a bit) - what FISC was protecting was criminal prosecutions that were strengthened by adherence to the FISA provisions. If cases bootstrapped by the extra-statutory TSP activity were to contaminate FISC, it would taint the FISC itself (as operating outside of its jurisdictional grant), and any cases where FISA warrants were material to sustain a criminal case.

So say some. I disagree. Others say that the FISC was up in arms that teh gummint was breaking the law and could not allow themselves to be part of it (much less sign off on it).

It is true that the gummint can go break the law and tap w/o a court order, and they don't have to go to the FISA Court before they do so (obviously). And it is true that in such a case, the FISC has little to say about what they're doing; it would be up to an honest AG and/or a civil plaintiff to haul the perps into a federal court for their transgressions. The FISC doesn't act as a gateway for the admission of surveillance evidence into criminal court; the district court does (see, e.g., 50 USC § 1806(g)).

Cheers,
 

-- Do you have a cite? --
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Mayfield v. US - prominently mentioned in Judge Walker's decision of July 2. I'm surprised you have to ask.
 

-- Others say that the FISC was up in arms that teh gummint was breaking the law and could not allow themselves to be part of it (much less sign off on it). --
.
Same thing, different words. FISC, for whatever reason, didn't want to be associated with TSP. Out of it's sandbox, illegal, taints cases in it's sphere ... all indicators that TSP was not in conformity with FISA.
.
And one of the ramifications of that are that any evidence obtained was at risk of being suppressed as a matter of statute ... but that doesn't mean the acquisition was per se outside of Article II - a court could decide as between the evidence and FISA, that the evidence and Article II wins. Without a decision, we don't know, and without a fact pattern, it's hard to judge a decision.
 

-- [FISA] applies whether or not a criminal prosecution is ever sought. To suggets otherwise is disingenuous. --
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The Constitution sets the limits, and the Courts make the call as to whether and where a statute conflicts with the constitution. There are open issues on both ends of FISA. It can encroach both on a president's Article II power, and on the rights retained by the people as expressed in the 4th amendment.
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To suggest otherwise is disingenuous.
 

cboldt:

Mayfield v. US - prominently mentioned in Judge Walker's decision of July 2. I'm surprised you have to ask.

Thanks. Sorry I had to ask. I've been out-of-radio-contact for a while, and am just catching up with the latest goings-on....

Cheers,
 

cboldt:

[cboldt]: A warrantless "foreign intelligence" snoop has to be justified,...

[Arne]: How?!?!? To whom?!?!?

The government has to show the court evidence that demonstrates how it became suspicious that the target was a source of foreign intelligence information.


See bolded (was this a typo?)

If no warrant is sought or needed, then why does the court have to do this?
 

-- If no warrant is sought or needed, then why does the court have to do this? --
.

To insure there hasn't been a 4th amendment violation. If the snoop starts off with foreign intelligence suspicion, a warrant may or may not be required under FISA. The government could argue that a warrant isn't needed period, but there sits FISA.

.

Even under a warrantless 1802 snoop, the government, if it follows FISA, will submit information to FISC, but under seal, not to be opened unless needed. It might be needed to obtain a FISA warrant, or it might be needed to show a District Court judge (in camera and ex parte) why the criminal evidence is not tainted as being the product of a snoop w/o prior suspicion.

.

I think justification for a foreign intelligence snoop is expected to be created, whether the snoop is warrantless or with a warrant. The government is expected to anticipate the possibility of bringing a criminal charge - and/or acting as though it doesn't snoop w/o suspicion.
 

cboldt:

[cboldt]: ... and then, at some point, the court has to decide if a warrant is required in order to support a criminal case and conviction. The function of FISA and FISC is to form that bridge.

[Arne]: Oh, piffle. FISA was passed to put limits and oversight on -- well ... you know ... things like ... foreign intelligence surveillance.

[Arne]: It wasn't to facilitate any criminal prosecutions; that's what the Fourth Amendment is for (amongst other things, IMNSHO).

[Arne]: It applies whether or not a criminal prosecution is ever sought. To suggets otherwise is disingenuous.

[cboldt]: The Constitution sets the limits, and the Courts make the call as to whether and where a statute conflicts with the constitution....


What's that got to do with the price of tea in Sri Lanka?

... There are open issues on both ends of FISA. It can encroach both on a president's Article II power, and on the rights retained by the people as expressed in the 4th amendment.

To suggest otherwise is disingenuous.


When you find someone that has suggested such, be sure to tell them.

But you ignore my statement that FISA applies whether or not a criminal prosecution ensues (or is even intended or contemplated). In fact, there are some that would say (disingenuously, as the In re: Sealed Case opinion points out) that national intelligence and criminal prosecution are two different spheres (which might need -- or militate for -- a "bridge" to span the two spheres as necessary). I reject that analysis, and that "history" of the impetus and genesis of the FISA laws (see, e.g., "Church Committee"; FISA wasn't passed to facilitate criminal prosecutions in the appropriate situations to avoid Fourth Amendment prolems resulting from "Article II" snooping, it was intended to stop such snooping unless actally warranted (so to speak).

As I pointed out, FISA applies to such intelligence activities regardless (as does the Fourth Amendment, under the appropriate circumstances), something that you suggest happens only at the intersection (or the "bridge") between the two spheres, leaving any "national intelligence" activities not intended for criminal prosecution outside the "function of FISA and FISC" (your words), and thus by implication from your statement, not subject to the FISA laws. This is simply not true.

Cheers,
 

-- But you ignore my statement that FISA applies whether or not a criminal prosecution ensues --
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I know it's there - foreign intelligence snooping that never gets into a criminal case.
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While you seem to have inferred my belief, I don't think FISA operates ONLY when there is a foreign intelligence/criminal nexus - that's a point of view I do not hold, never held, and didn't mean to imply.
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But if 100% of the foreign intelligence never gets to a criminal trial, then FISA is unnecessary - or large swaths of it are.
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The government managed to conduct both, foreign intelligence and criminal investigations, without FISA. The government likes cases to be predictable, and it also like to get other branches to sign on to unconstitutional encroachments against the public. The rubber meets the road in court.
 

the Al-Haramain Islamic Foundation are not "innocent Americans"

Very good; then go convince a judge of that, and get a warrant. That's how the Fourth Amendment works.

Oh wait, that's how it used to work, when we had a Fourth Amendment. Now we have a piece of paper.
 

cboldt:

But if 100% of the foreign intelligence never gets to a criminal trial, then FISA is unnecessary - or large swaths of it are.

Nonsense. Perhaps § 1806, paragraphs (c), (d), and (e) ... although arguably these parts apply to such as deportation hearings, job actions, etc., as well. But not much more.

Cheers,
 

cboldt:

The government is expected to [...] act[] as though it doesn't snoop w/o suspicion.

I'd shorten that: "The government is expected to not snoop w/o suspicion."

That's pretty much the impetus of FISA; to take away the "nash'null securitah" 'exception', following the brilliant demonstration of the perils of such 'exceptions' by the Nixon maladministration. I don't think much of 'exceptions', to be honest; I think they are pernicious, creeping incursions on our liberties. I address that here.

Cheers,
 

This is my first visit to your blog and I learn a lot about law. I'll visit this blog regularly. Thanks.
 

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