-- That's true. Prior to 2007, FISA required a court order for interception of e-mails (not phone calls) from one foreign party to another foreign party if the interception occurred here in the U.S. And everyone agreed that such e-mail surveillance needed to be treated the same as foreign-to-foreign phone surveillance, which never required any such court order. --

.

I see no provision in FISA's 1801(f) definition of "electronic surveillance" (and that definition is the acquisition of contents of communications, not distinguishing between telephone and e-mail) that encompasses acquisition of a foreign-foreign communication.

.

Where do you find the provision in FISA that required a court order for interception of foreign-foreign e-mails?
 

Cboldt:
Impossible to know exactly what the court ruled, but there are two potential problems.

First, while in transit to a U.S. server (as a "wire communication"), that server may be the only known "recipient" of the e-mail, unless the government has advance knowledge of who owns the account and where they are likely to be be when they ultimately download and read it.

Second, while sitting on the server (and not, at that instant, a "wire communication"), the e-mail may be regarded as falling under FISA's fourth catch-all "other" definition of "electronic surveillance." This definition, covering the use of a surveillance "device" to acquire information other than wire or radio communications, is triggered if any "person"--not necessarily a U.S. person--has a reasonable expectation of privacy in the content acquired. From what DOJ has allowed to dribble out, it seems likely that this was at issue in the 2007 spring FISC ruling that kicked off this whole fiasco.
 

FISA could be reduced to this provision alone:

The FISA court can only approve the NSA's surveillance plan if it finds that the plan is consistent with the Fourth Amendment. Section 702(i)(3)(A). That is to say, the FISA Court must do its own constitutional, as well as statutory, analysis -- although on a systematic, rather than a search-by-search, basis, which might prove very challenging.

In essence, the TSP and any other such programs will be submitted to the FISC to determine whether they need warrants at all under the 4th Amendment.

Unlike the original FISA and what remains of the current FISA, there are no Article I power problems with this provision. Rather, Congress is properly using the N&P Clause to enforce the 4th Amendment.

The analysis should be relatively straight forward under current law. The Executive needs to demonstrate that any program is targeting agents of foreign groups or powers for intelligence gathering and not the gathering of evidence for criminal prosecutions.
 

Prof. Lederman:

-- The FISA court can only approve the NSA's surveillance plan if it finds that the plan is consistent with the Fourth Amendment. Section 702(i)(3)(A). That is to say, the FISA Court must do its own constitutional, as well as statutory, analysis -- although on a systematic, rather than a search-by-search, basis, which might prove very challenging.

How is this anything more than a "Post-It" note saying that the court is required to abide by the Constitution of the United States?

Is there some legal significance to this that I'm not getting?

Cheers,
 

Prof. Lederman:

-- Orin claims that the most important improvement is that it appears the FISA Court is suppose to conduct a de novo, rather than deferential, review of whether the NSA is complying with the statutory standards.

Being as the FISC is the court of first instance, all decisions are based on de novo review (there is no lower court decision whose rulings should be afforded deference). The only "deference" here might be to the actions of the executive, and why the exective decisions should be given deference by a court is beyond me; that's kind of like prejudging the case, particularly when the entire purpose of such judicial oversight is to act as a check on the executive, not to mention their duty to do so vigourously in a situation such as this where the proceedings are ex parteand the real party of interest is prevented from arguing their own case.

Why does this need to be said? Did someone think their duty was otherwise previously?

Cheers,
 

Prof. Lederman:

Orin says that's not fair, because everyone agreed that the pre-PAA FISA was out-of-date, and the new law fixes the gap in FISA that was uncontroversial.

That's true....

No, that's obviously not true. I can affirmatively state this, being myself a sufficient counter-example.

... Prior to 2007, FISA required a court order for interception of e-mails (not phone calls) from one foreign party to another foreign party if the interception occurred here in the U.S....

I disagree. It did not.

... And everyone agreed that such e-mail surveillance needed to be treated the same as foreign-to-foreign phone surveillance, which never required any such court order.

I disagree. The relevant portion of 50 USC § 1801(f) is this:

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18;

This covers intercepts of "wire communications" performed within the United States. The canard that some phone conversations can be intercepted within the United States by dint of being "radio communications" in which some party is not located within the United States is wrong (and wrong in particular for the probable modality of intercept, being access to the switches which use wire and/or optic technology internally). Phone conversations that are carried in part by "radio communications" are no less "wire communications" than any other; they are carried over many if not most legs of the connection by wire methods ... and are intercepted almost assuredly at a wire switch. If the intercept was truly done using radio technology (and if the relevant parameter for deciding whether the communication is a "wire" or "radio" one is the means of interception), that could be just as easily done off-shore (but I can tell you that technical considerations militate the intercept locus being wire-based switching equipment). Pretending that it is a "radio communication" and then intercepting at a wire switch is just nonsense.

Not to mention the absurdity of saying that your level of protection is dependent on the vagaries of internal telecommunications routing procedures, whether via satellite or via cable.....

The new law does, indeed, close that gap.

It addresses someone's desire to snoop more than they could before.

Cheers,
 

-- Second, while sitting on the server (and not, at that instant, a "wire communication"), the e-mail may be regarded as falling under FISA's fourth catch-all "other" definition of "electronic surveillance." This definition, covering the use of a surveillance "device" to acquire information other than wire or radio communications, is triggered if any "person"--not necessarily a U.S. person--has a reasonable expectation of privacy in the content acquired. --
.

That particular section [1801(f)(4)] wasn't amended.

.

The "big" change, as Senator Bond pointed out, is in Title VII, Section 702(c)(4)

.

"CONSTRUCTION- Nothing in title I shall be construed to require an application for a court order under such title for an acquisition that is targeted in accordance with this section at a person reasonably believed to be located outside the United States."

.

That's roughly the operative effect of PAA Section 105A, except H.R.6304 didn't redefine "electronic surveillance" as the PAA did.

.

I'm trying to think through how the CONSTRUCTION change might remedy the alleged inability to obtain foreign-foreign e-mails, but at first blush, I think the same 1801(f)(4) barrier (which I don't see in the first place) is still there.
 

-- Why does this need to be said? Did someone think their duty was otherwise previously? --
.
Orin Kerr is comparing the new law (HR6304) with the "clearly erroneous" standard that FISC was ordered to apply to its de novo review when it evaluated DOJ/DNI plans for surveillance of calls. FISC was to reject the plan only if the interception plan was clearly erroneous in its method of insuring acquisition was limited to international communications.
.
In practice, this showing could be trivial - the government could order the telecoms to cough up the full contents of cables/fibers that transit international boundaries. In that way, it is NOT clearly erroneous that the acquisitions would be international communications.
.
What Orin Kerr hasn't provided is a concise statement of the court review under EITHER of the laws. He's just making a conclusory statement that the review under the new law is more thorough, or substantive, than was the review under the PAA.
.
I haven't analyzed the new law - but did review the PAA to understand the extent of court review of the "TSP-like" surveillance.
 

jsanchez:

[@ Cboldt]:
Impossible to know exactly what the court ruled, but there are two potential problems.

First, while in transit to a U.S. server (as a "wire communication"), that server may be the only known "recipient" of the e-mail, unless the government has advance knowledge of who owns the account and where they are likely to be be when they ultimately download and read it.

The server is not the "recipient" (unless, arguably, it's the POP3 server for the recipient's ISP and is taken as a proxy for the actual recipient's location).

If the problem is determining location of the recipient, then all they have to do is wait for the recipient to retrieve it (or, alternatively, block or filter out all domestic retrieval).

It's a technological problem, not a legal one.

Second, while sitting on the server (and not, at that instant, a "wire communication"), the e-mail may be regarded as falling under FISA's fourth catch-all "other" definition of "electronic surveillance." This definition, covering the use of a surveillance "device" to acquire information other than wire or radio communications, is triggered if any "person"--not necessarily a U.S. person--has a reasonable expectation of privacy in the content acquired. From what DOJ has allowed to dribble out, it seems likely that this was at issue in the 2007 spring FISC ruling that kicked off this whole fiasco.

You omit the tail end of that: "...and a warrant would be required for law enforcement purposes.

Warrants aren't required for foreign snoops.

But I disagree that the "status" of sitting on a server makes it not a "wire communication". For instance, cables (well known through Operation Shamrock to the Church Committee) spend time "sitting" on telegraph operator's desks, hotel cubbyholes, etc. This makes them in no way less a "wire communication". And even phone conversations are "stored" in transit, in frame buffers, in IP packets queued for forwarding (for VoIIP), etc.

While perhaps some clarification of the nature of "wire", "radio", and "other" commmunications should be made, in particular if the courts and the gummint have gone off on the wrong foot in such interpretation, I don't think that is necessary; a simple read of the 1978 law's language, history, and intent, and application to the technological issues ought to be sufficient. Any statutory modification based on supposed technological changes is essentially Canute telling the tide to stay out, and fruitless even in today's heterogeneous and merging communications applications where even a single communication can encompass all kinds of mechanisms for implementation (voice, e-mail, SMS, HTTP/IP links, etc.). What needs to be taken into consideration is the nature of the communications (not the mechanics of such), and the relative privacy and security interests involved.

Cheers,
 

"Bart" DeDicta:

Unlike the original FISA and what remains of the current FISA, there are no Article I power problems with this provision.

"Bart", newsflash fer ya: Judge Vaugn Walker shot your stoopid "theories" about legislative powerlessness to regulate snooping (and other such things) to sh*t in the Al-Haramain decision (see, e.g., p. 13 et seq.).

You're free to spout yor ignerrence ad nauseam, but don't pretend that the actual law comports with your -- umm, "peculiar" -- understang (or lack thereof).

Cheers,
 

cboldt:

[Arne]: Why does this need to be said? Did someone think their duty was otherwise previously?

Orin Kerr is comparing the new law (HR6304) with the "clearly erroneous" standard that FISC was ordered to apply to its de novo review when it evaluated DOJ/DNI plans for surveillance of calls.

Thanks for the explanation. Is this "clearly erroneous" standard from the PAA somewhere?

I note that the sufficiency of the certifications is to be reviewed under a "clearly erroneous" standard in 50 USC § 1805(a)(5) for issuance of a court order (pursuant to a § 1804 application) for surveillance. But that is not the same as 'review' of the DOJ/DNI plans for snooping....

IC that PAA § 105C(b) has this language WRT the court 'review' of the "procedures". If this is a change from the PAA, well and fine, but, as pointed out by Prof. Lederman, the baseline for whether this is an improvement should be FISA, not the egregious PAA.

Cheers,
 

arne:

Judge Vaughn did not rule on whether Article I empowered Congress to direct foreign intelligence gathering through FISA. The issue was not before him. Rather, Judge Vaughn simply assumed the statute was legal for the purposes of determining whether it supplanted the State Secrets privilege.

I got a chuckle out of how the lefty blogs were actually celebrating the Al-Haramain decision based on this inconsequential dicta when Judge Vaughn effectively held that FISA did not permit the plaintiffs in these harassment suits the discovery they needed to provide standing.
 

the TSP and any other such programs

Last I checked, trisodium phosphate was legal and uncontroversial.

The program you refer to is the warrantless wiretapping program.
 

Judge Vaughn did not rule on whether Article I empowered Congress to direct foreign intelligence gathering through FISA. The issue was not before him.

That issue was not before him because the Administration went out of its way to avoid raising it. It the Administration truly believes that FISA is a unconstitutional "direction" of intelligence gathering, they need only move for dismissal on those grounds. The Administration keeps insisting that FISA unconstitutionally limits its power in its public pronouncements, but refuses to test this theory in court. Kind of makes me wonder why.
 

"Bart" DeDicta:

Judge Vaughn did not rule on whether Article I empowered Congress to direct foreign intelligence gathering through FISA. The issue was not before him. Rather, Judge Vaughn simply assumed the statute was legal for the purposes of determining whether it supplanted the State Secrets privilege.

If FISA was not legal or exceeded Constitutional authorisation, it could harldy supplant the federal common-law (which, FWIW, "Bart" claimed elsewhere doesn't exist) "state secrets privilege".

Yes, Walker assumed it was legal. That's because no one but numbnutz, nimrods, and disingenuous trools argues anything differently.

But "Bart" is wrong here: Walker specifically addressed the gummint's contention that the "state secrets privilege" arises from supposed Article II powers and thus is immune to supplantation by FISA. He rejected this claim (see the opinion at p. 20 et seq.). See particularly discussion of Egan and other such matters as to the power of Congress in intelligence matters on p. 22-26.

I got a chuckle out of how the lefty blogs were actually celebrating the Al-Haramain decision based on this inconsequential dicta when Judge Vaughn effectively held that FISA did not permit the plaintiffs in these harassment suits the discovery they needed to provide standing.

No. Walker did not so rule. What he did do is say that the 9th Circuit Court of Appeals had ruled that the "sealed document" could not be used, and thus he wasn't going to (and couldn't) change that.

Cheers,
 

"Judge Vaughn did not rule on whether Article I empowered Congress to direct foreign intelligence gathering through FISA. The issue was not before him.

"That issue was not before him because the Administration went out of its way to avoid raising it. It the Administration truly believes that FISA is a unconstitutional "direction" of intelligence gathering, they need only move for dismissal on those grounds. The Administration keeps insisting that FISA unconstitutionally limits its power in its public pronouncements, but refuses to test this theory in court. Kind of makes me wonder why.

"# posted by Enlightened Layperson"

As a Nixonite, Cheney has long held that presidents (so long as Republican, thus lapel flag-pin/trinket wearing patriots) can do anything, law notwithstanding. Thus he has always held that FISA is unconstitutional.

Note, of course, that he isn't a lawyer, and has a 100 per cent record of contempt for the law -- so why know anything about that which one totally rejects?

Thus there are two possible ways to defeat FISA. One is to challenge its constitutionality in court. Cheney knows that wouldn't work, because he knows it is more arguably constitutional than not.

The other is to expand it to such an extent that it in effect evaporates.
 

No. Walker did not so rule. What he did do is say that the 9th Circuit Court of Appeals had ruled that the "sealed document" could not be used, and thus he wasn't going to (and couldn't) change that.

Cheers,

# posted by Arne Langsetmo

I'm wondering if that document will eventually be "leaked" outside the reach of US legal jurisdiction.

I don't see Barfin' Bart defending the requirement of a "secret brief" written under the suppervision of the opposing party that is "responsive" to a "secret brief" the writers of the "responsive brief" are not allowed to read.

I suppose, though, that demolition of fundamental due process is acceptable to him -- so long as done by a criminal America-Hating/Republican gang of treasonuous rackteers.
 

In essence, the TSP and any other such programs will be submitted to the FISC to determine whether they need warrants at all under the 4th Amendment.
. . .

The analysis should be relatively straight forward under current law. The Executive needs to demonstrate that any program is targeting agents of foreign groups or powers for intelligence gathering and not the gathering of evidence for criminal prosecutions.

Not quite so simple. Although Truong, which Bart is fond of citing, holds that the 4th Amendment does not require a warrant for foreign intelligence surveillance, it also holds that such surveillance must be "reasonable." It does not explain in much detail what "reasonable" means, largely because in that case the government initiated surveillance when one of the conspirators tipped them off. That would have been more than ample grounds for a FISA warrant. "Vacuum cleaner" surveillance of all international calls may very well be deemed "unreasonable" and therefore disallowed by the 4th Amendment, even if the object is foreign intelligence.
 

el:

An interesting question is whether data mining (computer surveillance looking for certain words or symbols) of a wide spectrum of telecommunications (overwhelmingly innocent) should be considered a 4th Amendment search of all the communications or just those the computer flags and actual humans listen to or read?

If it is the former, then you obviously have 4th Amendment problems.

However, as is more likely, the search is judged by the criteria used to flag communications for actual human consumption, then such a system should be able to be tailored to pass 4th Amendment scrutiny.

I really like the potential of such a system to preserve privacy because one can pinpoint the few bad needles in a vast stack of billions of innocent needles without the invasive, not to mention the impossibly time consuming task, of having humans listen to all the calls to find the bad guys.

Essentially, this is a google search on steroids.
 

enlightened layperson said...

BD: Judge Vaughn did not rule on whether Article I empowered Congress to direct foreign intelligence gathering through FISA. The issue was not before him.

That issue was not before him because the Administration went out of its way to avoid raising it. It the Administration truly believes that FISA is a unconstitutional "direction" of intelligence gathering, they need only move for dismissal on those grounds. The Administration keeps insisting that FISA unconstitutionally limits its power in its public pronouncements, but refuses to test this theory in court. Kind of makes me wonder why.

The same reason I tell my clients to avoid trial when I can win what they want through negotiations. Even what ought to be slam dunk results are crapshoots when you put your issue in the hands of a judge or a jury.

The Boumediene Five's radical decision that completely ignored the actual text of the Constitution and the habeas corpus common law is Exhibit 1 as to the risks of litigation.

If I was confident that I could convince Congress through negotiations and political reality to back off its unconstitutional attempt to direct intelligence gathering, why on Heaven's Earth would I submit the issue to the courts and allow Justice Kennedy to further cripple the constitutional powers of my office?
 

A question for the legal experts:

Does the April 2007 decision that FISA can apply to foreign-to-foreign-communications mean that anyone who engaged in a foreign-to-foreign communication passing through the United States between 1978 and August 2007 and believes that they were listened in on would have standing to sue, in the absence of the telecom immunity provision?
 

JNagarya:

I'm wondering if that document will eventually be "leaked" outside the reach of US legal jurisdiction.

From the late Molly Ivins's book, I understand that the "sealed document" was transmitted to one of the clients in Saudi Arabia, and is, FWIW, "out there". May make no difference, though. The 9th Circuit Court of Appeals has ruled that even a recollection of what the document said cannot be used in court. This is bizarre, but that's what they said, and what Walker has to deal with.

Maybe this may make it back for en banc consideration, and some judges with an ounce of sense (or less fidelity to the Federalist Society and Dubya than to the rule of law) will hear it.

Cheers,
 

"Bart" DeDicta:

An interesting question is whether data mining (computer surveillance looking for certain words or symbols) of a wide spectrum of telecommunications (overwhelmingly innocent) should be considered a 4th Amendment search of all the communications or just those the computer flags and actual humans listen to or read?

If it is the former, then you obviously have 4th Amendment problems.

However, as is more likely, the search is judged by the criteria used to flag communications for actual human consumption, then such a system should be able to be tailored to pass 4th Amendment scrutiny.

A plausible question, but I think "Bart"'s answer is wrong.

The very fact that certain "flags" or keywords are being used to cull the information is itself an invasion of privacy. Absent probable cause (and the keywords are hardly that) supporting a warrant, the information gathered is still an illegal search even if not all the intercepted material is even looked at.

Bootstrapping "probable cause" through what is recovered by the search has obvious problems. Can we just search everyone (say, using passive means), and then just arrest and hold the folks that we find potentially incriminating material on? Why not? The only ones substantially inconvenienced are those that are actually guilty....

Cheers,
 

"Bart" DeDictaL

The same reason I tell my clients to avoid trial when I can win what they want through negotiations.

That's spelled "plea bargain". That's because your clients are DUIs dead to rights.

Cheers,
 

-- The very fact that certain "flags" or keywords are being used to cull the information is itself an invasion of privacy. Absent probable cause (and the keywords are hardly that) supporting a warrant, the information gathered is still an illegal search even if not all the intercepted material is even looked at. --
.
The Jabara case is a good study on that point.
 

arne:

The very fact that certain "flags" or keywords are being used to cull the information is itself an invasion of privacy. Absent probable cause (and the keywords are hardly that) supporting a warrant, the information gathered is still an illegal search even if not all the intercepted material is even looked at.

How do you figure that anyone - innocent American or enemy - has a reasonable privacy interest to mere key words in an an algorithm of identifiers common to terrorist communications?

For example, let us assume our intelligence services discover that al Qaeda uses the phrase "when Muhammad comes back to Mecca" as a term of art to mean "return to the safe house," the phrase "my brother is paying my way" to mean "we have received the transferred funds" and the phrase "the weather is cloudy today" to mean" cancel the meet because I may be under surveillance." How could a algorithm looking for combinations of these and other phrases be a violation of any innocent person's reasonable expectation of privacy?

Instead, because such logarithms identify the enemy and the 4th Amendment does not require a warrant to gather intelligence against the enemy, such algorithms arguably take the surveillance outside of the 4th Amendment.
 

Two observations:

1. One "challenge" facing the FISC in ruling on constitutionality is Article III's case or controversy requirement. Who is the potential victim in the proceedings? What alleged violations are to be weighed? In short, what judicial power is the FISC supposed to exercise? Is it a fifth branch (excuse me if I've lost count)?

This is more than an academic question. The ACLU lawsuit brings particular concerns of its various and sundry plaintiffs to the fore. How is the FISC supposed to weigh such interests, even if they somehow master the ins and outs of a surveillance program put before them?

It would be one thing if cases could be pursued in the district courts, but given standing barriers, the bizarre workings of the state secrets doctrine -- neither of which the statute addresses -- and the broad sweep of acquisition programs authorized under the new law, I don't see how any such court can give alleged victims a fair hearing.

But, to focus on the FISC as a court, what has it been asked to do?

2. The definition of "President's Surveillance Program" -- which ties to the telecom immunity provision -- is weasel-worded but seems to cover only what was authorized on and after 9/11.

It is rumored that the telecoms were approached as early as February 2001. It seems that if they broke any laws before 9/11, their conduct is still fair game.

I leave it to others to see if the words are such as to allow pre-9/11 warrantless surveillance to have been retroactively "cleansed."
 

Bart, spare me your constant harping on how FISA unconstitutionally "directs" intelligence gathering. It does nothing of the kind. You yourself have acknowledged that there is no case law whatever on the distinction between a proper "regulation" and unconstitutional "direction" of executive activities, or even whether there is such a constitutional distinction.

Second, although the Constitution never, not in Article I, Article II or anywhere else mentions espionage, Article II does expressly mention the President's law enforcement authority. ("he shall take Care that the Laws be faithfully executed.") Article I give no law enforcement authority to Congress. It would logically seem to follow (and I would not dispute) that it would therefore be unconstitutional for Congress to "direct" law enforcement activity or "tell the President which suspects to wiretap." Yet you have no objection to Title III setting forth the procedures the President is to follow in law enforcement wiretaps.

Well, FISA no more "directs" intelligence gathering than Title III "directs" law enforcement. Both simply establish procedures; who wiretap under these procedures remains entirely within the President's discretion.
 

For example, let us assume our intelligence services discover that al Qaeda uses the phrase "when Muhammad comes back to Mecca" as a term of art to mean "return to the safe house," the phrase "my brother is paying my way" to mean "we have received the transferred funds" and the phrase "the weather is cloudy today" to mean" cancel the meet because I may be under surveillance." How could a algorithm looking for combinations of these and other phrases be a violation of any innocent person's reasonable expectation of privacy?

Yes, and then suppose you start bringing in human listeners and find out that you are listening in on huge numbers of innocent calls from people with relatives named Muhammad making the Hajj, or brothers giving them financial assistance or cloudy weather? The whole point of these phrases is that they sound innocent and no doubt are used innocently all the time.

In that case, not only are you invading innocent people's privacy when you bring in human listeners, you are apt to overload the system with a vast number of false alarms. (I believe the FBI called them "calls to Pizza Hut.")
 

-- Well, FISA no more "directs" intelligence gathering than Title III "directs" law enforcement. Both simply establish procedures; who wiretap under these procedures remains entirely within the President's discretion. --

.

The difference is that Title III sets limits for investigation of criminal law, and making federal criminal law is under Congress's sole purview.

.

OTOH, foreign intelligence is OUTSIDE of Congress's purview.
 

-- ... let us assume our intelligence services discover that al Qaeda uses the phrase "when Muhammad comes back to Mecca" as a term of art to mean "return to the safe house," the phrase "my brother is paying my way" to mean "we have received the transferred funds" and the phrase "the weather is cloudy today" to mean" cancel the meet because I may be under surveillance." How could a algorithm looking for combinations of these and other phrases be a violation of any innocent person's reasonable expectation of privacy? --

.

Just change the example ever so slightly. "I love you" means "we're terrorists"; "I really like your tits" means "that's one heck of a bomb you have there"; and "I'm horny" means "ATTACK!"

.

-- How could a algorithm looking for combinations of these and other phrases be a violation of any innocent person's reasonable expectation of privacy? --

.

I'm not diminishing the terrorist threat, but the fact that the government endeavors to trap all of my communications for "keyword analysis" pisses me off. And then to say that somehow it is "respecting a reasonable expectation of privacy" just pisses me off even more.

.

The story line doesn't hold water, and your defense of it is just making bigger and bigger holes in the charade of "but we're respecting people's privacy."
 

"Barfin' Bart" barfs --

"Congress['] . . . unconstitutional attempt to direct intelligence gathering".

Does Congress have the Constitutional authority to enact privacy-protection legislation? Certainly. If that "contains" intelligence gathering within privacy-protecting bounds, it is not "directing intelligence gathering" -- it is limiting it.

Does Congress have the authority to enact legislation requested by the Executive which targets specific sorts of intelligence for "gathering"? Yes. That is "directing intelligence gathering".

No way around it but to LIE, "Barfin' Bart": the Constitution trumps ALL THREE branches of gov't. I provided that clue in brief description of the efforts by MA-Bay to adopt a constitution. The first effort, a legislative enactment (which some of the 1776-77 state constitutions were), was rejected in part because it raised these questions:

"Does that mean, then, that the legislature can amend it at whim?"

"Does that mean, then, that the legislature can repeal it at whim?"

Rather than risk having to actually answer those questions, the world's first Constitutional Convention was established and held in order to put the framed constitution beyond -- above -- the meddlings of the legislature.

And at the same time, of course, above the meddlings of Executive and Judiciary -- concerning which, in view of the history of MA-Bay vis-a-vis the Crown, the Founders/Framers had direct first-hand experience: Governors were appointed by the Crown, the "locals" having no say in the matter. And with the Judiciary Act, judges were appointed by the Crown/Royal Governor, the locals having no say in the matter.

That process -- Constitutional Convention -- was replicated with the US Constitution: thus the only way to amend the Constitution is by PROPOSED amendment submitted to the states for approval, three-fourths required to RATIFY.

That is why, of course, torture -- which is prohibited by the law of the land, which law of the land is the Constitution -- in the Bill of Rights itself, and in adopted treaties -- cannot be made legal either by Congress -- despite the effort to do so, even ex post facto, by the Republican-controlled Congress -- or the Executive -- despite the Bushit criminal enterprise endeavoring to have that Congress do so in order to cover its treasonous ass -- or by the Judiciary.

Or even by all three acting together in agreement.

All three branches -- including the Executive unconstitutionally occupied by the unconstitutionally APPOINTED Bushit criminal enterprise -- are (to be) UNDER the Constitution, and there is no LEGAL/NON-TREASONOUS way around that bedrock fact. There are only the unconstitutional fig-leaf efforts by your party-before-country-based-solely-upon-America/Rule of Law-Hating-and-the-wearing-of-Made-in-Communist-China-flag-lapel pins/trinkets -- when in control of Congress, and the unconstitutional claims -- worse, ACTIONS -- by the Bushit criminal enterprise, as in, for example, the Yoo, et al., Torture Memoes, which were NOT the product of, or made WITHIN the confines of, "academic freedom".

And what is "treason," "Barfin'," as defined in the Constitution? For one, "adherence to the enemy and giving them aid and comfort" -- which certainly implicates the taking of deliberate actions, against the most expert of advice, which will PREDICTABLY INCREASE the number of enemies of the US, and thus UNDERMINE national security, exactly as have such as the illegal invasion and illegal occupation of Iraq, the disgrace of the US by the Bushit criminal enterprise-administered Abu Ghraib, and the continuing and increasingly entrenched alienation of the Iraqi people as direct result of the indiscriminate torture -- and slaughter -- of the Iraqi people without such niceties as democratic due process.

All of which UNDERMINES -- which is the exact OPPOSITE of PROTECTING -- national security, which is in itself a violation of the Executive oath.

More finely, "Barfin'"? --

"[L]evying war against the United States" doesn't require armies and military materiale. As the US is "A system of laws, and not of men" (John Admas), an attack on that system of laws, which constitutes the United States -- upon the Constitution -- is itself not merely an impeachable High Crime, as in "felony," but also rises to TREASON. The "Unitary Executive" "theory," which in both intent and by means of "signing statements" deliberately subordinates the other two branches to mere "advisory" status, is a direct attack on that system of laws, which stipulates that the three branches are to be co-EQUAL, and that the Congress, not the Executive, makes the laws, and the Congress and Judiciary, not the Executive, have the final word on what is and is not the law.

The Congress is to have OVERSIGHT over ALL aspects and actions of the Executive -- none of which violates separation of powers. And the Congress has the authority AND DUTY to "preserve, protect, and defend the Constitution of the United States, from all enemies, foreign AND DOMESTIC". That INCLUDES preventing the Executive from violating the privacy rights of "US persons". If that means Congress "directs" "intelligence gathering" AWAY from the protected privacy rights of the PRESUMED INNOCENT/"US persons," then Congress CERTAINLY has the authority -- AND OBLIGATION -- to do so.

The Bushit criminal enterprise cannot CONSTITUIONALLY seize my "stuff" based upon the fact that he signed a "signing statement" which in appearance -- and intent -- NULLIFIES, in whole or in part, Constitutional provisions and Congressional enactments.

The argument between Congress and the Executive over which controls "foreign policy," and to what degree, has been going on since at least Jefferson. And it is a healthy argument. But none of that prohibits Congress either limiting, or "directing," or both, "intelligence gathering" by the Executive. Doing so is NOT presuming to "direct intelligence gathering," by the Executive specifically, specifically OUTSIDE the US, including that based solely upon the presumptive and preemptive use of hot-button and loaded terms, such as "terrorist" and "al Qaeda," which have so much appeal to ignorant bigots -- as do Bushit and his America/Rule of Law-Hating dead-enders -- as EXCUSE to ignore the Constitution and laws.

Simply put, ass: merely LABELING a person, hypothetical or actual, "terrorist" or the like, DOES NOT IPSO FACTO MAKE THAT PERSON A TERRORIST, nor is such lame, juvenile, and unevidenced name-calling sufficient to nullify that person's rights, either in US law or in international law.
 

making federal criminal law is under Congress's sole purview.

Which clause is that?
 

"Enlightened Layperson" --

"Barfin'" barfed --

For example, let us assume our intelligence services discover that al Qaeda uses the phrase "when Muhammad comes back to Mecca" as a term of art to mean "return to the safe house," the phrase "my brother is paying my way" to mean "we have received the transferred funds" and the phrase "the weather is cloudy today" to mean" cancel the meet because I may be under surveillance." How could a algorithm looking for combinations of these and other phrases be a violation of any innocent person's reasonable expectation of privacy?

"Yes, and then suppose you start bringing in human listeners and find out that you are listening in on huge numbers of innocent calls from people with relatives named Muhammad making the Hajj, or brothers giving them financial assistance or cloudy weather? The whole point of these phrases is that they sound innocent and no doubt are used innocently all the time.

"In that case, not only are you invading innocent people's privacy when you bring in human listeners, you are apt to overload the system with a vast number of false alarms. (I believe the FBI called them "calls to Pizza Hut.")"

Suppose Barfin' were to write an anti-"tourist" screed, or short story, in which he used those phrases, and then submitted it by email to a magazine published in London.

And as result he were flagged, labeled, and bagged as being a "tourist," arrested and thrown into "Country Club Guantanamo," uncharged, and refused legal counsel and contacts with the outside world, even down to that one phone call, because -- without question: "God talks to Georgie Bushit -- a "tourist".

And then waterboarded.

Would any of the horseshit he'd confess to -- "I voted for Goergie!" -- be believed, since NO ONE merely labeled "tourist" can possibly be telling the truth, and NO ONE merely labeled "tourist" can tell lie a under torture?

Well, we do know that we wouldn't be subjected -- "treated"? -- to his screeds against the Constitution and laws for an indefinite length of time.

The real question isn't whether Barfin' would be rewarded for the gibberish he "divulged" against his fellow "CommieIslamoFascists" with a trip to Pizza Hut.

The real question is: Would it be torture to no longer have Barfin' as entertainment?
 

cboldt: making federal criminal law is under Congress's sole purview.
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Mark Field: -- Which clause is that? --
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That would be Article I, Section 1, "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
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The United States Constitution
 

No, that's not it at all. That clause doesn't say what powers are actually granted; it simply says that all legislative power which is granted belongs to Congress (i.e., the President and SCOTUS have none). For the actual grant of power you need to look at Art. I, Sec. 8.
 

cboldt: Title III sets limits for investigation of criminal law, and making federal criminal law is under Congress's sole purview.
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Mark Field -- Which clause is that? --
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cboldt: That would be Article I, Section 1, "All legislative Powers ..."
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Mark Field -- That clause doesn't say what powers are actually granted; it simply says that all legislative power which is granted belongs to Congress (i.e., the President and SCOTUS have none) --
.
Either I'm missing your point, or you need to finish the train of logic so as to make my initial contention false. Some branch must have the authority to make federal criminal law, and you say it's not the President and it's not SCOTUS. I said "Title III sets limits for investigation of criminal law, and making federal criminal law is under Congress's sole purview," and you seem to have a disagreement with that.
 

enlightened layperson said...

BD: For example, let us assume our intelligence services discover that al Qaeda uses the phrase "when Muhammad comes back to Mecca" as a term of art to mean "return to the safe house," the phrase "my brother is paying my way" to mean "we have received the transferred funds" and the phrase "the weather is cloudy today" to mean" cancel the meet because I may be under surveillance." How could a algorithm looking for combinations of these and other phrases be a violation of any innocent person's reasonable expectation of privacy?

Yes, and then suppose you start bringing in human listeners and find out that you are listening in on huge numbers of innocent calls from people with relatives named Muhammad making the Hajj, or brothers giving them financial assistance or cloudy weather?

Then you refine the algorithms to make them more accurate. One the the elements the FISC will undoubtably consider in evaluating whether the TSP or similar program does not run afoul of the 4th Amendment is how often innocent calls are being intercepted.

The whole point of these phrases is that they sound innocent and no doubt are used innocently all the time.

Not in combination with other phrases and circumstances. The chances of innocent error decrease exponentially.

These searches are very sophisticated. The military set up far more rudimentary searches of public records and found the Atta 9/11 cell. We have learned far more about al Qaeda since that time and have undoubtably incorporated those patterns into our searches.

Second, although the Constitution never, not in Article I, Article II or anywhere else mentions espionage, Article II does expressly mention the President's law enforcement authority. ("he shall take Care that the Laws be faithfully executed.") Article I give no law enforcement authority to Congress. It would logically seem to follow (and I would not dispute) that it would therefore be unconstitutional for Congress to "direct" law enforcement activity or "tell the President which suspects to wiretap." Yet you have no objection to Title III setting forth the procedures the President is to follow in law enforcement wiretaps.

For wiretapping covered by the 4th Amendment, Congress is enforcing the 4th Amendment through the N&P clause. The critical difference with FISA is that foreign intelligence gathering falls outside of the 4th Amendment and thus Congress cannot be said to be enforcing that provision.
 

Either I'm missing your point, or you need to finish the train of logic so as to make my initial contention false. Some branch must have the authority to make federal criminal law, and you say it's not the President and it's not SCOTUS. I said "Title III sets limits for investigation of criminal law, and making federal criminal law is under Congress's sole purview," and you seem to have a disagreement with that.

Sorry, I don't mean to be obnoxious. There's an important point to be made here, and I don't want it to get lost.

The point is this: the Constitution doesn't give to any branch the power to pass criminal statutes. It's an implied power of Congress.

The reason I make such a big deal out of this is that the same process -- implication -- which gives Congress the power to punish crimes also gives Congress the power to control the conduct of the Executive in the methods and practices it uses to gather information. Contrary to your statement above, foreign intelligence gathering is NOT outside the purview of Congress, it's just as much within that purview as punishing crimes.
 

For wiretapping covered by the 4th Amendment, Congress is enforcing the 4th Amendment through the N&P clause. The critical difference with FISA is that foreign intelligence gathering falls outside of the 4th Amendment and thus Congress cannot be said to be enforcing that provision.

I would say that even if foreign intelligence is not covered by the 4th Amendment, FISA is still enforcement of the 4th Amendment thru the N&P Clause. The purpose of FISA is to make sure that when the President says he is engaged in foreign intelligence surveillance, he is actually conducting foreign intelligence surveillance and not merely using national security as a cover. The Church hearings revealed enough abuses of wiretapping, and not only by Nixon but by all Presidents from FDR onward, to establish that allowing any President unregulated powers of surveillance is an invitation to abuse.

Do tell me, though, whether you consider Title III to be "directing" law enforcement.
 

"Bart" DeClueless:

How do you figure that anyone - innocent American or enemy - has a reasonable privacy interest to mere key words in an an algorithm of identifiers common to terrorist communications?

For example, let us assume our intelligence services discover that al Qaeda uses the phrase "when Muhammad comes back to Mecca" as a term of art to mean "return to the safe house," the phrase "my brother is paying my way" to mean "we have received the transferred funds" and the phrase "the weather is cloudy today" to mean" cancel the meet because I may be under surveillance." How could a algorithm looking for combinations of these and other phrases be a violation of any innocent person's reasonable expectation of privacy?

Because when the keywords trip a human search, the contents are divulged, and for some, if not most, such intercepts, there's no probable cause, much less a warrant.

Instead, because such logarithms identify the enemy and the 4th Amendment does not require a warrant to gather intelligence against the enemy, such algorithms arguably take the surveillance outside of the 4th Amendment.

What makes you think these algorithms "identify the enemy" -- and only "the enemy"? (and of what significance is that, in any case? After all, we arrest "only criminals"....)

Cheers,
 

Enlightened Layperson:

Bart, spare me your constant harping on how FISA unconstitutionally "directs" intelligence gathering. It does nothing of the kind. You yourself have acknowledged that there is no case law whatever on the distinction between a proper "regulation" and unconstitutional "direction" of executive activities, or even whether there is such a constitutional distinction.

Actually, Judge Vaugh Walker shoots "Bart"'s pet "theories" to sh*te in his Al-Haramain opinion.

Cheers,
 

cboldt:

OTOH, foreign intelligence is OUTSIDE of Congress's purview.

False. Please explain why you have this silly idea.

Cheers,
 

"Bart" DeDoofus:

[Enlightened Layperson]: Yes, and then suppose you start bringing in human listeners and find out that you are listening in on huge numbers of innocent calls from people with relatives named Muhammad making the Hajj, or brothers giving them financial assistance or cloudy weather?

["Bart"]: Then you refine the algorithms to make them more accurate.

And invent an "electronic judge" to evaluate "probable cause" and issue a warrant....

Ask Weizenbaum; maybe he'll help ... a new "Eliza" perhaps....

Cheers,
 

"Bart" DeConstitutional:

One the the elements the FISC will undoubtably consider in evaluating whether the TSP or similar program does not run afoul of the 4th Amendment is how often innocent calls are being intercepted.

"Innocen[ce]" is not a necessary predicate for Fourth Amendment protection.

Cheers,
 

"Bart" becomes an AI expert, along with his Constitutional, climatological, and demographic scientist laurels....:

The whole point of these phrases is that they sound innocent and no doubt are used innocently all the time.

Not in combination with other phrases and circumstances. The chances of innocent error decrease exponentially.

These searches are very sophisticated.

Do tell. Really. Having worked in the MIT AI lab at one time, I do have a passing interest in current trends.

But WTFD difference would that fariy tale make, even if true?

Cheers,
 

cboldt: OTOH, foreign intelligence is OUTSIDE of Congress's purview.
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-- False. Please explain why you have this silly idea. --
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United States v. United States District Court (Keith), 407 U.S. 297 (1972)
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Granted, my statement is overbroad, because Congress has passed privacy statutes that aim to protect the 4th amendment (See Title III & FISA), but if push comes to shove as between an Article II ("foreign intelligence" snoop) and the 4th amendment, the inquiry would be fact specific, and I wouldn't assume that the statute would find the snoop outside of Article II. It might suppress the evidence as a remedy (pursuant to statute), but even that doesn't mean the exercise of Article II power could be enjoined by the Court.
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We can also look at what Congress itself once codified at 18 USC 2511:
.
"Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities." That language is since repealed - but it states the presence of a constitutional power of the President.
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I think the recent addition of "FISA shall be the exclusive means" would not enable an injunction against the president, although it probably would enable the remedies set forth in the statute, e.g., suppression of evidence and civil penalties.
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I understand that many people think the "exclusive means" language in FISA can step on an Article II power. I think it's an open issue, and it won't be resolved until and unless a fact-specific case makes it through the appellate process. Yes, I am aware of Judge Walker's finding in al Haramain - he accurately describes Congressional intent. But the full extent of remedy for this finding, in this case, is that Congress enabled a piercing of state secret so that a Court could determine the executive's basis for the foreign intelligence snoop under question.
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At any rate, I respectfully reject the contention that the subject matter of Title III (crim law) and FISA (foreign intelligence) are similar to the extent that Congressional power to limit executive action is equally powerful in those two areas. If the issue is ever settled, it''ll be done by people above my pay grade.
 

Anyone too naive to understand that a productivity multiplier becomes dangerous -- when used with ill intent -- directly in proportion to its power should not be taken seriously.
 

cboldt:

[cboldt]: OTOH, foreign intelligence is OUTSIDE of Congress's purview.

[Arne]: False. Please explain why you have this silly idea.

[cboldt]: United States v. United States District Court (Keith), 407 U.S. 297 (1972)

The Kieth case required a warrant. This holding hardly establishes your assertion.

If the Kieth court had accepted the gummint's position in Kieth, it would have been that Congress had authorised national security wiretaps w/o a warrant through 18 USC § 2511(3).

Please don't be like "Bart" DeDicta here. One is enough, thanks.

Cheers,
 

cboldt:

To emphasise:

We can also look at what Congress itself once codified at 18 USC 2511:

"Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities." That language is since repealed - but it states the presence of a constitutional power of the President.

You're using a law passed by Congress to argue that Congress has no say?!?!?

Cheers,
 

cboldt:

Yes, I am aware of Judge Walker's finding in al Haramain - he accurately describes Congressional intent. But the full extent of remedy for this finding, in this case, is that Congress enabled a piercing of state secret so that a Court could determine the executive's basis for the foreign intelligence snoop under question.

Walker pointed out that FISA was supplanting federal common law, and rejected the gummint's Article II argument.

Cheers,
 

-- Please don't be like "Bart" DeDicta here. --
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Buzz off.
 

cboldt:

I don't think we disagree as much as it appears. I think rather that you just are careless or inartful (and less than precise) in what you do say.

Let me bring you back to your assertion:

"OTOH, foreign intelligence is OUTSIDE of Congress's purview."

This is not that same as saying that the preznit has Article II powers (mindful, of course, of the Youngstown formulation, as Judge Walker was in the Al-Haramain opinion). It is saying that Congress has NO authority here. I think that's blatantly false (for reasons stated above and more).

I think you should simply acknowledge that what you stated was wrong, and say what it is that you really meant. To continue with your refusal to disavow what's obviously wrong is to emulate "Bart"'s intransigence to truth.

Cheers,
 

-- To continue with your refusal to disavow what's obviously wrong is to emulate "Bart"'s intransigence to truth. --


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I say "Granted, my statement is overbroad," go on to attempt to explain what I'm thinking, and you cherry pick one part of that for criticism.
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Then you insult me by saying I'm emulating Bart. What part of "Buzz off" is going over your head? BUZZ OFF. Bug somebody else.
 

cboldt:

I say "Granted, my statement is overbroad,"

I say, "your statement is wrong." Just say that, then say what you meant to say, and then we can proceed.

Cheers,
 

What part of "Buzz off" is going over your head?

cboldt,

Sure looks like you lost on the merits and bailed on an "indignation" excuse...
 

-- Sure looks like you lost on the merits and bailed on an "indignation" excuse... --
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That's rather superficial on the merits, of its own right.
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And even if my points and/or conclusions are in error, the point lost by not making substantive responses to Arne's mistakes is over whether the analysis and path to the conclusion "Congress can (or can't) prohibit THAT surveillance by the executive" is different, when THAT surveillance is of a criminal matter, vs. when THAT surveillance is for foreign intelligence purposes.
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Even though I made overbroad generalizations on the way, I say the analyses would be different, and the exec is more likely to prevail when the contest is over foreign intelligence, and less likely to prevail when the contest is over snooping for criminal prosecutions - others disagree. BFD.
 

"cboldt" --

-- Sure looks like you lost on the merits and bailed on an "indignation" excuse... --

"And even if my points and/or conclusions are in error, the point lost by not making substantive responses to Arne's mistakes is over whether the analysis and path to the conclusion "Congress can (or can't) prohibit THAT surveillance by the executive" is different, when THAT surveillance is of a criminal matter, vs. when THAT surveillance is for foreign intelligence purposes.

"Even though I made overbroad generalizations on the way, I say the analyses would be different, and the exec is more likely to prevail when the contest is over foreign intelligence, and less likely to prevail when the contest is over snooping for criminal prosecutions - others disagree. BFD"

Which branch defines, in law, "foreign" "intelligence"? Can that branch define it, but not oversee it? Can it define and oversee it but not limit it?

Certainly the Congress can both oversee and stipulate limits and prohibitions as to what the Executive can do outside US jurisdiction. An example is which branch gets to declare war -- which is a directive to the Executive -- or not.
 

cboldt:

And even if my points and/or conclusions are in error, the point lost by not making substantive responses to Arne's mistakes is over whether the analysis and path to the conclusion "Congress can (or can't) prohibit THAT surveillance by the executive" is different, when THAT surveillance is of a criminal matter, vs. when THAT surveillance is for foreign intelligence purposes.

What was my mistake (we know what yours was)?

Say what you're trying to say in plain English and coherent sentences (if possible; I will be charitable and try to read between the lines as best I can when the meaning is obscure).

You may find I agree with you. The phrase of yours that I disagreed with was the phrase I kept highlighting. And, to be honest, that phrase is the very same as our buddy "Bart"'s been flogging for a half century or so (give or take a few years). Thence my ire.

Cheers,
 

cboldt:

And even if my points and/or conclusions are in error, the point lost by not making substantive responses to Arne's mistakes is over whether the analysis and path to the conclusion "Congress can (or can't) prohibit THAT surveillance by the executive" is different, when THAT surveillance is of a criminal matter, vs. when THAT surveillance is for foreign intelligence purposes.

What was my mistake (we know what yours was)?

Say what you're trying to say in plain English and coherent sentences (if possible; I will be charitable and try to read between the lines as best I can when the meaning is obscure).

You may find I agree with you. The phrase of yours that I disagreed with was the phrase I kept highlighting. And, to be honest, that phrase is the very same as our buddy "Bart"'s been flogging for a half century or so (give or take a few years). Thence my ire.

Cheers,
 

enlightened layperson said...

BD: For wiretapping covered by the 4th Amendment, Congress is enforcing the 4th Amendment through the N&P clause. The critical difference with FISA is that foreign intelligence gathering falls outside of the 4th Amendment and thus Congress cannot be said to be enforcing that provision.

I would say that even if foreign intelligence is not covered by the 4th Amendment, FISA is still enforcement of the 4th Amendment thru the N&P Clause. The purpose of FISA is to make sure that when the President says he is engaged in foreign intelligence surveillance, he is actually conducting foreign intelligence surveillance and not merely using national security as a cover.

Actually, FISA went beyond what the 4th Amendment required, which is why I observed in my opening post that the new provision allowing the FISC to evaluate whether the TSP or similar programs comply with the 4th Amendment is all that is required. To the extent that the rest of FISA goes beyond the 4th Amendment to direct foreign intelligence gathering, it is beyond Congress' powers.
 

At any rate, I respectfully reject the contention that the subject matter of Title III (crim law) and FISA (foreign intelligence) are similar to the extent that Congressional power to limit executive action is equally powerful in those two areas.

You can take this position, of course, but the text of the Constitution doesn't lend you much support. As I noted above, Congressional power to pass criminal statutes is nowhere mentioned in the Constitution and has to be implied from other clauses. Moreover, Art. I, Sec. 8, cl. 19 grants Congress power "To make all laws which shall be necessary and proper for carrying into execution ... all other powers vested by this constitution in the government of the United States, or in any department or officer thereof."

That's a pretty specific grant of control over the exercise of Presidential power. At worst, it's exactly the same implied power as Congress has to enact criminal statutes. That makes it pretty hard to draw the distinction you're trying to make between wiretapping for criminal cases and "other".
 

"Bart DePalma" --


". . . . The purpose of FISA is to make sure that when the President says he is engaged in foreign intelligence surveillance, he is actually conducting foreign intelligence surveillance and not merely using national security as a cover."

"Actually, FISA went beyond what the 4th Amendment required, . . . ."

As concerns the 4th Amendment, FISA is unconstitutional: the 4th does not say, "after X amount days/weeks/months of searching for evidence for probable cause, you must get a warrant -- if such evidence is found.

"which is why I observed in my opening post that the new provision allowing the FISC to evaluate whether the TSP or similar programs comply with the 4th Amendment is all that is required."

Does the 4th Amendment apply to FOREIGN intelligence gathering? If not, then FISA/FISC has nothing to do with the 4th.

"To the extent that the rest of FISA goes beyond the 4th Amendment to direct foreign intelligence gathering, it is beyond Congress' powers."

Your merely saying that FISA "directs" foreign intelligence gathering doesn't automagically make it so -- even though it would be your knee-jerk defense of the Bushit criminal defense to assert -- though not outright -- that Republican Executives are exempt from the reach of law, "therefore" Congress doesn't have the Constituional authority to tell the Executive -- if Republican -- what it can and cannot do.

Only Congress can declare war. If Congress declares war, it is a DIRECTIVE TO the Executive -- not a request or suggestion. In other words, Congress has the authority to DIRECT the Executive to fulfill its Constitutional OBLIGATIONS. If it refuses to do so, it is subject to Congressional enforcement of the Constitution and laws, up to and including impeachment.

Given that the Congress -- not the Executive -- has the exclusive authority to make the laws, and given that Congress controls the definitions of terms in its enactments, it certainly defines, in law, the meanings of "foreign" "intelligence". How it doefines those terms is both a limitation and a DIRECTIVE.

Congress can certainly say, "Invade country X, but do not invade country Y." That is both a directive and a limitation. As certainly it can direct, "Conduct foreign intelligence in Area A but DO NOT conduct foreign intelligence in Area B.

If the Executive sees that as a violation of separation of powers, it has a DUTY to address the issue IN KEEPING WITH CONSTITUTIONAL DUE PROCESS. It does NOT have the authority to write a "signing statement" saying, "Fuck you, Congress," and thereafter do as it pleases so long as it can hide its actions from Congress.

In short: as does the Constitution, Congress can DIRECT that the Executive comply with Constitution and rule of law, both in doing and not doing, that law being drawn as Congress sees fit.
 

mark:

The N&P Clause simply permits Congress to enact statutes which enable the President to exercise his power, such as the legislation which created and funded the NSA so it could execute the TSP.

The N&P Clause does not permit Congress to assume the President's executive and CiC Article II powers to direct the operations of the NSA.

Congress can either enforce the 4th Amendment by having the FISC determine whether the TSP complies with it or simply defund the TSP.
 

jnagarya:

FISA should not have anything to do with foreign intelligence gathering. At most, Congress can use the FISC as a kind of inspector general to determine whether the Executive is violating the 4th Amendment by targeting Americans in ways that violate their reasonable expectations of privacy without a warrant.
 

if congress can't control what the CNC does with the NSA .. then they should just defund it ..

i'd say that'd make the point of who can do what to whom ..

you've got a warped concept of what CNC confers .. bart ..

we elect constitutional officers .. we don't coronate kings .. and yes ..virginia even in a time of war the CNC is still a constitutional officer bound by the constitution itself ..

all the commander-in-chief power confers on the president is that he is the chief civilian commander over the army and navy during a time of war .. he has no powers outside those outlined in the constitution .. period .. there is no "CNC" over-ride of the constitution .. he can't just make stuff up and invent authority .. all authority derives from the constitution .. and the minute the president ..even acting as CNC .. steps over the bounds of the constitution which he is sworn to uphold .. he is an extra-legal actor ..

terence .. this is silly hsit ..

see:

http://law.usc.edu/students/orgs/lawreview/documents/Luban_David_81_3.pdf
 

Mark Field --

""Art. I, Sec. 8, cl. 19 grants Congress power "To make all laws which shall be necessary and proper for carrying into execution ... all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.""

I'd not noticed before, but Art. I, Sec. 8 is actually something of a hodge-podge: the several clauses are in a jumble, whether by intent or not. Seems to me that should be the first clause; but before those, and yet "down" in the list, are the clauses giving clauses control over the military/ies.

I'm sure, though, despite the Framers' efforts to throw fairy dust in his eyes, Barfin' can find implicit "Unitary Executive" exceptions in cl. 19 which render even torture constitutional.
 

"Bart DePalma" --

mark:

The N&P Clause simply permits Congress to enact statutes which enable the President to exercise his power, such as the legislation which created and funded the NSA so it could execute the TSP.

The N&P Clause does not permit Congress to assume the President's executive and CiC Article II powers to direct the operations of the NSA.

Congress can either enforce the 4th Amendment by having the FISC determine whether the TSP complies with it or simply defund the TSP.

Every legal authority, legal power, legal right, is inextricably eentwined with a duty, a responsibility, an obligation. Congress does not have mere passive "permission" to exercise its authority; it also has the authority and OBLIGATION to do so.

If the Congress can require -- and it can -- written financial statements from the Executive substantiating that it did not misalocate funds for, as example, paper clips, then it can impress upon the Executive, with fine point statute, that the Executive is DIRECTED NOT to misalolate funds for paper clips again, else Congress can initiate prosecution of the mis/malfeasance.

That is, if it can legislate in fine, then it can regulate -- which includes DIRECT -- such as the actions of the NSA.

Yes: Congress has the authority and the duty to MICROMANAGE the Executive by means of STATUTES, which STATUTES do, among auther things, DIRECT, as in the term S-H-A-L-L.
 

"Bart" DeDicta:

The N&P Clause simply permits Congress to enact statutes which enable the President to exercise his power, such as the legislation which created and funded the NSA so it could execute the TSP....

OIC. So the role of Cogress is to prop up the king ... errr, sorry, preznit, and give him the money he needs to do whatever it is he wants to do. Damn, I'm suing my high-school civics teacher; he didn't tell me that.

Cheers,
 

"Bart DePalma" --

jnagarya:

FISA should not have anything to do with foreign intelligence gathering.

It can if Congress wants it to.

At most, Congress can use the FISC as a kind of inspector general to determine whether the Executive is violating the 4th Amendment by targeting Americans in ways that violate their reasonable expectations of privacy without a warrant.

At most, Congress, which has sole authority to establish courts, can vest in it any powers it wants, so long as not unconstitutional. It cannot, for example, establish a court, which is constitutional, that ignores due process, and the rights of the potentially accused to due process protections, and the accused to due process protections and authorities.

It cannot, in other terms, allow a "state secrets" doctrine to supercede the independent determination of a court of the full facts of a matter before it in order to force the court to dismiss the matter unexamined. To do otherwise would be to in effect and result give the gov't carte blanche vis-a-vis the citizens it is DIRECTED to SERVE as opposed to HOODWINK AND OPPRESS.
 

If the Congress can require -- and it can -- written financial statements from the Executive substantiating that it did not misalocate funds for, as example, paper clips, then it can impress upon the Executive, with fine point statute, that the Executive is DIRECTED NOT to misalolate funds for paper clips again, else Congress can initiate prosecution of the mis/malfeasance.

There's an even better example in the context of gathering information.

Note that Congress has exactly the same power over the Executive that it has over the other co-equal branch of government, the Judiciary -- the clause I quoted above applies equally to both. Now consider whether Congress can control the means of gathering information and the types of information gathered which the courts rely on to exercise their exclusive (Art. III, Sec. 1) judicial power. The answer is that Congress has done precisely that in passing the Federal Rules of Evidence.
 

"jpk" --

The new book The Dark Side: The Inside Story of How The War on Terror Turned into a War on American Ideals by Jane Mayer promises details on the "near complete lack of actionable intelligence gained" from torture.

As we were reminded, in no uncertaion terms, by Mark Twain, from 1902 -- which means the US has known for at least 106 years that the "intelligence" produced by torture is worthless.

Greenwald does an excellent article on the Mayer book within the last two-three days. Torture, though, is only one prong of an all-[l]out attack, accross the board, on the Constitution and laws. On the rule of law itself.

And look what they've done with their "free market" "privatization: KBR is holding the US hostage: were KBR to pull out of Iraq, the military there would collapse.
 

Mark Field --

If the Congress can require -- and it can -- written financial statements from the Executive substantiating that it did not misalocate funds for, as example, paper clips, then it can impress upon the Executive, with fine point statute, that the Executive is DIRECTED NOT to misalolate funds for paper clips again, else Congress can initiate prosecution of the mis/malfeasance.

"There's an even better example in the context of gathering information.

"Note that Congress has exactly the same power over the Executive that it has over the other co-equal branch of government, the Judiciary -- the clause I quoted above applies equally to both. Now consider whether Congress can control the means of gathering information and the types of information gathered which the courts rely on to exercise their exclusive (Art. III, Sec. 1) judicial power. The answer is that Congress has done precisely that in passing the Federal Rules of Evidence."

As I understand it, though I've not verified it, President Johnson (the first) was so hated by Congress that when several openings on the SC occurred, the Congress reduced -- by statute -- the number of SC seats so as to prevent him appointing to it.

Congress cannot eliminate the SC (I wonder what the minimum number of justices could be; 1? or 3?); but it nonetheless exercises significant control over it, and all lower courts.

Though the three branches are to be co-EQUAL, Barfin' seems not to get it that the Congress is (others say the [unelected] Judiciary) the closest branch to We the people, and subject to most effective re-/election. Whereas the Executive has substantial discretion -- under the oversight of Congress -- as concerns the "whims" of the electorate, Congress has no such luxury.

Ours is a representative democracy: We the people are directly represented by the Congress: it does as we deem vis-a-vis the other branches, or we throw the bums out.

The Executive is not a boss; he is an EMPLOYEE, having the privilege only of being the most prominent.
 

mark field:

The theory behind the federal criminal code was established in the late 19th Century, when the Supremes held that the N&P Clause empowers Congress to enact legislation necessary to implement its enumerated Article I powers and provide penalties for violating the laws which are so enacted. Because Congress does not possess an Article I power to direct foreign intelligence gathering, this analogy does not help your case.

The theory behind congressional enactment of rules of procedure and evidence for the courts is that the enumerated power to create lower courts grants it the power to set rules establishing the scope of the power of such courts. Article I does not grant Congress an analogous power to create the Presidency and thus set the scope of its power. Article II alone sets out that power. Thus, this analogy is similarly unavailing for your argument.
 

Because Congress does not possess an Article I power to direct foreign intelligence gathering....

[Re]stating your conclusion ad nauseam is always a winning argument. Particularly when you're wrong....

Cheers,
 

Article I does not grant Congress an analogous power to create the Presidency and thus set the scope of its power. Article II alone sets out that power.

Then the preznit has very limited powers (to receive ambassadors and a few other perqs). Because unlike Article I, Section 8, the powers assigned to the preznit are very minimal (I'd note for the brain-dead that the "CinC" power is itself very limited, being true only "when called into the actual service of the United States"). Live a 'textualist', die a 'textualist'.

Cheers,
 

arne:

I know I am going to regret encouraging you, but where the heck did you come up with "the "CinC" power is itself very limited, being true only "when called into the actual service of the United States?"

Presuming that this is true, when exactly is the President not called to service as CiC so long as we have a standing military?
 

Then the preznit has very limited powers (to receive ambassadors and a few other perqs).

Notably, the President is in the same position as the Supreme Court. Neither can create subordinates (See Art. I, Sec. 8, cl. 9 and Art. II, Sec. 2, cl. 2); only Congress can do that. In fact, the President can't even appoint all the subordinates if Congress doesn't let him: "Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

But all this is kind of beside the point. The issue mentioned by JNgaraya had to do with controlling the scope of information gathering, and the same Constitutional text applies to both President and Court. Any argument made about one is going to have a hard time explaining a different result for the other on textual grounds.

As I understand it, though I've not verified it, President Johnson (the first) was so hated by Congress that when several openings on the SC occurred, the Congress reduced -- by statute -- the number of SC seats so as to prevent him appointing to it.

See the Judicial Circuits Act.
 

Bart:

You keep insisting that FISA unconstitutionally "directs" the gathering of foreign intelligence. But you yourself acknowledge that there is no case law defining an unconstitutional "direction," either in the case of foreign intelligence or the uniformed services (or, for that matter, in law enforcement). So, in effect, you are stating a personal opinion and trying to pass it off as settled constitutional law.

You are as entitled to your opinion as anybody else, but if you want anyone else to take it seriously as constitutional law, you are going to have to do something more than keep re-asserting it. A working definition of "direction" would be a good place to start. In the spirit of fair play, I would offer my own definition of an unconstitutional "direction" of intelligence gathering as trying to determine particularized targets. Presenting a list of people to be surveilled would be an unconstitutional "direction." Setting forth procedures for surveillance is not. If the N&P clause permits Congress to create an intelligence service, then it also permits Congress to regulate that service -- just as Congress may regulate any other federal agency.

So, if you are going to keep arguing that FISA is an unconstitutional "direction" of intelligence gathering then answer:

(1) How do you define "direction" and

(2) May Congress "direct" law enforcement activity?
 

-- Presenting a list of people to be surveilled would be an unconstitutional "direction." Setting forth procedures for surveillance is not. --

.

I'd swap the word "policies" for "procedures." Congress isn't about to get into the technical nitty gritty.

.

I think FISA can be unconstitutional "as applied," in two opposing directions. Others here think it's impossible for FISA, on an "as applied" basis, to interfere with an Article II power (IOW, in a contest between Congress and the President, Congress/FISA will certainly win when the acquisition is of foreign intelligence information). I figure if the Aldrich Ames case came up today, and FISA was ignored, the Courts would have a real tiger by the tail. I don't see the same slam dunk suppression order those folks see.

.

But the gorilla in the room is that "search" has been defined to be poking through the basket of communications that the public thought was private, but instead is available for "keyword" or other review. Somehow, getting those communications and putting them in the basket isn't intrusive. I think there's a theoretical possibility of prevailing on an as-applied challenge for a 4th amendment violation (i.e., squeaky clean person, no independent cause whatsoever to intercept and hold communications for possible review); and maybe room for a facial attack (even though the lower Courts -- facing the issue in criminal trials -- have uniformly rejected facial challenges on 4th amendment grounds)
 

"Bart" DeClueless:

I know I am going to regret encouraging you, but where the heck did you come up with "the "CinC" power is itself very limited, being true only "when called into the actual service of the United States?"

Because it says so in the freakin' Constitution (from which I cut'n'pasted that phrase). Albeit, arguably WRT only the state militias (although this is not 100% clear, particularly to those that like to ignore commas in the Second Amendment). But nonetheless limited in any parsing. I would note that we had no standing army (and shouldn't have such if the founders are to be heeded) back then. An originalist would have to ask then, "Who can snoop without a warrant? You and whose army?"

Cheers,
 

el:

1) Why would I change my argument that Article I limits Congress to enumerated powers and those enumerated powers do not include the power to direct foreign intelligence gathering when the opening clause of Article I expressly limits Congress to enumerated powers and Section 8 of that article nowhere provides Congress the power to direct foreign intelligence gathering or nearly any foreign policy at all?

The reason this has not been well settled by the Courts (apart from some commentary by the FISA appellate court and some testimony by the FISC judges to the Senate) is that Congress never attempted anything like FISA before the radical 1974 Congress took power and has since backed down after the President started ignoring FISA the way every President has ignored the similarly unconstitutional War Powers Act.

2) Direction of foreign intelligence gathering is choosing who will and will not be surveilled and what methods will and will not be used. The old FISA did attempted to do this, the gutted reform much less so.
 

I'd swap the word "policies" for "procedures." Congress isn't about to get into the technical nitty gritty.

I think FISA can be unconstitutional "as applied," in two opposing directions. Others here think it's impossible for FISA, on an "as applied" basis, to interfere with an Article II power

Sorry, cboldt, I really can't understand what you are saying. You think that FISA can be an unconstitutional infringement on the President's Article II powers, but this post is far from clear how and when.
 

To emphasize something that might be lost among the interesting back and forth in the comments, various comments suggest Kerr exaggerates the good while ML himself suggested he underemphasized (the immunity issue) the bad.

A telling disconnect. But, Obama is not totally full of it when he said the law has something good in it. It just as a whole was pretty bad.

On a small point, Mark Field noted: "Congressional power to pass criminal statutes is nowhere mentioned in the Constitution "

Still, the bit on providing punishment for counterfeits, defining and punishing piracies/felonies on the high seas and offenses against the law of nations seems pretty close.

For instance, criminal statutes against aiding the international slave trade arise from such things. This is different from the more indirect power to punish interference with the mails etc.
 

1) Why would I change my argument that Article I limits Congress to enumerated powers and those enumerated powers do not include the power to direct foreign intelligence gathering when the opening clause of Article I expressly limits Congress to enumerated powers and Section 8 of that article nowhere provides Congress the power to direct foreign intelligence gathering or nearly any foreign policy at all?

Well, obviously, because the enumerated powers do not include authority to create an intelligence service, either. Yet you seem to find that power in the N&P clause. It seems most odd to me that the N&P clause would include the power to create a spy agency, but not the power to regulate it.

2) Direction of foreign intelligence gathering is choosing who will and will not be surveilled and what methods will and will not be used. The old FISA did attempted to do this, the gutted reform much less so.

FISA chooses who will and will not be surveilled only in the sense of defining "agent of a foreign power." And if foreign intelligence surveillance is going to be treated as a separate category, then someone has to define what it is. Before FISA passed, the courts defined "agent of a foreign power" by caselaw, leaving large gaps of uncertainty until after the fact. Under FISA, Congress defines "agent of a foreign power" and eliminates that uncertainty. In neither case does the President get to unilaterally decide what is and is not foreign intelligence surveillance.

FISA chooses what methods will and will not be used only in the sense of insisting on minimization procedures to restrict spying to actual foreign intelligence and protect as much as possible innocent communications inadvertently swept in. This is the very essense of upholding the 4th Amendment.
 

-- I really can't understand what you are saying. You think that FISA can be an unconstitutional infringement on the president's Article II powers, but this post is far from clear how and when. --
.
I gave a hypothetical case (Ames-like). I limited the hypothetical court ruling to "as applied" (to the Ames-like case). I recited "I don't see the same slam dunk suppression" (notwithstanding the statutory suppression rule) [in the hypothetical Ames-like case]
.
That's what I said. A Court might find, in an "as applied" case, that FISA can't suppress the evidence, and that the president was acting (as-applied) within his sphere of inherent power.
.
A careful reader will notice that I didn't say he's always within his power (see the term "as-applied"), nor did I say it's a slam dunk that a court would rule in the president's favor in the case in hand.
 

-- "Congressional power to pass criminal statutes is nowhere mentioned in the Constitution" --

.

The power to pass legislation does not include the power to pass criminal statutes? (to be enforced by the executive, and judged by the courts, with juries of peers)
 

Mark Field: -- The point is this: the Constitution doesn't give to any branch the power to pass criminal statutes. --

.

I'm not letting his pass without remarking that "the power to pass criminal statutes" is inherent to the power to legislate.

.

It's ludicrous to find that the power to pass criminal statutes is "residual" to a legislature, unless that power is expressly and positively enumerated to a legislative body.

.

WTF is the limitation "no ex post facto" about, if the Congress lacks the constitutional power to criminalize by statute?

.

Your contention that Congress has less power in criminalizing public conduct than it has in directing the executive in foreign affairs is false - the power to criminalize is inherent in the power to legislate.
 

-- Your contention that Congress has less power in criminalizing public conduct than it has in directing the executive in foreign affairs is false --
.
Mea culpa - you implied that Congress has equal power in both spheres.
.
I reject that. I say Congress has inherent power in criminalizing public conduct, and lacks inherent power in conducting foreign affairs.
.
Not trying to get you to agree. Just expressing the basis of my belief. I think I've done that, so you get the last word.
 

Barfin' Bart Bars again --

mark field:

The theory behind the federal criminal code was established in the late 19th Century, when the Supremes held that the N&P Clause empowers Congress to enact legislation necessary to implement its enumerated Article I powers and provide penalties for violating the laws which are so enacted. Because Congress does not possess an Article I power to direct foreign intelligence gathering, this analogy does not help your case.

The theory behind congressional enactment of rules of procedure and evidence for the courts is that the enumerated power to create lower courts grants it the power to set rules establishing the scope of the power of such courts. Article I does not grant Congress an analogous power to create the Presidency and thus set the scope of its power. Article II alone sets out that power. Thus, this analogy is similarly unavailing for your argument.

Really? And who, pray tell, had the authority to organize, and did organize, the gov't under the newly-ratified Constitution? The Executive, or the Congress?

When Congress adopts an international treaty which constraints the nation -- US gov't on down -- and thus constraints -- and directs -- the Executive -- in the international arena, which branch is thereby DIRECTING the Executive's actions in the international arena?
 

Barfin' Bart Bars again --

arne:

I know I am going to regret encouraging you, but where the heck did you come up with "the "CinC" power is itself very limited, being true only "when called into the actual service of the United States?"

Presuming that this is true, when exactly is the President not called to service as CiC so long as we have a standing military?

Is the "CiC" authorized, without Congressional approval and direction, to order the military to whatever he wants, without regard to Congressional statutes, etc., concerning the use of the military?

Whether the military is "standing" is irrelevant.

Smarten up: study what the Monarch could do with the military before the colonists "dissolved the bonds" with the Monarch and took a different approach.

You'll see that same effort continued and reflected in the first Congress' debates of the Second Amendment -- of the militia as alternative to a standing army. That they military is requthirzed and refunded by Congress every two years does not amend the outcome of those debates.

The "CiC" does not have a free hand, exempt from scrutiny and regulation, in ANYTHING -- especially in the exercise of powers which can directly threaten the entire scheme of laws and governance established by the Framers, beginning with, in the insatnce of intelligence gathering, the 4th Amendment.

In addition to which, the Congress, the members of which also take an oath to protect and defend the Constitution and laws, against all enemies FOREIGN AND domestic, has the authority to also regulate whether and how the Executive exercises its powers outside the US. He is not allowed to knowingly take actions which will increase the numbers of enemies, and result in "blowback," because then he is not merely an enemy of the country, but also adhering to its enemies.
 

"cboldt" --

-- Presenting a list of people to be surveilled would be an unconstitutional "direction." Setting forth procedures for surveillance is not. --

"I'd swap the word "policies" for "procedures." Congress isn't about to get into the technical nitty gritty."

It's not only not unknown, but also not unusual, for Congress to have review authority over Executive agency regulations. And the authority to reject them.

Usually that is left to the judiciary; but as I recall there are a few areas in which that skeptical oversight is routine.

Congress can -- and does -- get into the nitty gritty when it sees fit. It is the law-making body, and regulations are no less law than the statutes they implement.
 

If Congress decided to eliminate our nuclear arsenal, could they? (Of course they could!) But according to Bart that would be an infringement of the Big Dick's power to wage mayhem.

What Bart loves about war is the enormous loophole of lawlessness he (erroneously) sees in it for the executive to shake free of his duty to 'faithfully execute the law.'
 

"Bart" DeDicta:

The reason this has not been well settled by the Courts (apart from some commentary by the FISA appellate court and some testimony by the FISC judges to the Senate) ...

As pointed out, these "FISC judges" ended up being ... well, "not exactly" FISC judges....

... is that Congress never attempted anything like FISA before the radical 1974 Congress ...

"Bart" luvs him some Nixon, he duz.

... took power and has since backed down after the President started ignoring FISA ...

Typo there; should be "... breaking the law". Be that as it may, then the preznit should just have kept on "ignoring FISA" until a court told him to stop ... ummm ... oh, right, they did. Then he should have taken his 'theory' (or "Bart"'s) right up to the Supreme Court to establish this point of law for all to behold. He didn't. Instead, Dubya insisted the law had to be changed by Cngress to allow him to do what he wanted to do. Sorry, "Bartster", no one likes you.

2) Direction of foreign intelligence gathering is choosing who will and will not be surveilled and what methods will and will not be used.

And regulation is saying under what circumstances anyone can be snooped, and what methods can and cannot be used (see, e.g. 50 USC § 1801(f)(3) for one example of a regulation of "method").

Despite "Bart"'s "straw man", no FISA legislation has named anyone whatsoever either for snooping pr prohibiting the snooping thereof.

But isn't this the thirty-fourth tikme we've been through all of this nonsense from "Bart"?!?!? I'm beginning to suspect he's incapable of learning....

Cheers,
 

enlightened layperson said...

BD: 1) Why would I change my argument that Article I limits Congress to enumerated powers and those enumerated powers do not include the power to direct foreign intelligence gathering when the opening clause of Article I expressly limits Congress to enumerated powers and Section 8 of that article nowhere provides Congress the power to direct foreign intelligence gathering or nearly any foreign policy at all?

Well, obviously, because the enumerated powers do not include authority to create an intelligence service, either. Yet you seem to find that power in the N&P clause.

I do not find any independent substantive power in the N&P Clause. It is only an enabling provision o allow each branch to exercise their powers. To use your example, Congress uses the N&P Clause to create the intelligence service to enable the President to exercise his executive and CiC powers.

It seems most odd to me that the N&P clause would include the power to create a spy agency, but not the power to regulate it.

There are two problems with this theory:

1) If the N&P Clause contains the implied power to direct the activities of the other two branches, then the N&P Clause essentially swallows Articles II and III.

2) Additionally, such an enormously broad implied power undermines Article I's express intent to limit Congress to enumerated powers.

BD: 2) Direction of foreign intelligence gathering is choosing who will and will not be surveilled and what methods will and will not be used. The old FISA did attempted to do this, the gutted reform much less so.

FISA chooses who will and will not be surveilled only in the sense of defining "agent of a foreign power." And if foreign intelligence surveillance is going to be treated as a separate category, then someone has to define what it is. Before FISA passed, the courts defined "agent of a foreign power" by caselaw, leaving large gaps of uncertainty until after the fact.

How is this definition uncertain? The Executive and Judiciary never had a problem applying this definition.

The problem with FISA is that it set the standard far too high by requiring individualized probable cause before surveillance could begin when intelligence gathering is about following generalized reasonable suspicions like monitoring captured telephone numbers with unknown individual users.

FISA chooses what methods will and will not be used only in the sense of insisting on minimization procedures to restrict spying to actual foreign intelligence and protect as much as possible innocent communications inadvertently swept in. This is the very essense of upholding the 4th Amendment.

The new FISA requires minimization procedures that have actually been in place since the outset of the TSP. To the extent that the legislation simply requires the Executive to cease surveillance once it becomes clear that the target is not an agent of a foreign power, then Congress can be said to be enforcing the 4th Amendment. I have no problem with this. It makes eminent sense, which is why the Executive was already doing it.
 

mattski said...

If Congress decided to eliminate our nuclear arsenal, could they? (Of course they could!) But according to Bart that would be an infringement of the Big Dick's power to wage mayhem.

Huh? Congress' power to destroy arms would appear to be part of its power to raise and then disband the military.

My position is very simple - if Article I enumerates the power, Congress may exercise it.
 

Still, the bit on providing punishment for counterfeits, defining and punishing piracies/felonies on the high seas and offenses against the law of nations seems pretty close.

Yes, a fair point. What I meant, but said sloppily, was that the Constitution does not expressly grant federal power to enact general criminal laws. In fact, these provisions you cite were once used to argue that by listing such specific powers to enact some criminal statutes, the Constitution necessarily excluded the power to enact any others (inclusio unius, exclusio alterius).

I say Congress has inherent power in criminalizing public conduct, and lacks inherent power in conducting foreign affairs.

As I said above, you can take this position, but it's hard to get from A to B via the text, since it's the very same clause which is involved in both cases. In addition, any restrictions you place on Congressional power to regulate the Executive would also seem to restrict its power to regulate the Judiciary, again because it's all the same clause.
 

-- In addition, any restrictions you place on Congressional power to regulate the Executive would also seem to restrict its power to regulate the Judiciary, again because it's all the same clause. --
.
And the same criticism applies to "Congress has inherent power in criminalizing public conduct, and lacks inherent power in judging cases and controversies."
.
I'll just point out that when I say "lacks," I don't mean a complete absence. I mean that the power isn't naturally inherent in that branch. As between Congress and Courts, Congress has more power to legislate and less power to judge cases; and as between Congress and the executive, Congress has more power to legislate and less power to conduct foreign affairs.
 

cboldt:

I'll just point out that when I say "lacks," I don't mean a complete absence. I mean that the power isn't naturally inherent in that branch. As between Congress and Courts, Congress has more power to legislate and less power to judge cases; and as between Congress and the executive, Congress has more power to legislate and less power to conduct foreign affairs.

I knew we were in essential agreement. Truce?

Cheers,
 

Arne Langsetmo --

"Bart" DeDicta:

... is that Congress never attempted anything like FISA before the radical 1974 Congress ...

""Bart" luvs him some Nixon, he duz."

Yes. But he mosts pines for John Erlichmann: he most loves the photo
of him putting on an arrogant, beligerant face that harkens back to Mussolini, and forward to Dick "Dick" Cheney.

Oh to be a strutting fascist peacock!

". . . . Sorry, "Bartster", no one likes you."

So what's to be "sorry" for?

"But isn't this the thirty-fourth tikme we've been through all of this nonsense from "Bart"?!?!? I'm beginning to suspect he's incapable of learning...."

It's that Mussolini backbone.
 

BDP: The reason this has not been well settled by the Courts (apart from some commentary by the FISA appellate court and some testimony by the FISC judges to the Senate) ...

AL: As pointed out, these "FISC judges" ended up being ... well, "not exactly" FISC judges....

Arne, I believe someone in Greenwald's comments showed us just how badly Bart was distorting
the record. Do you have a link to that, by any chance?
 

el:

Rely upon Arne and Glenn's bloviations at your own risk.

The judges who testified before the Senate are:

Judge Harold A. Baker, a sitting federal judge in Illinois who served on the intelligence court until 2005; Judge Stanley S. Brotman, who left the panel in 2004; Judge John F. Keenan, who left in 2001; and Judge William H. Stafford Jr., who left in 2003. All four sit on the federal judiciary.
 

"Bart" DeCut'n'paste:

el:

Rely upon Arne and Glenn's bloviations at your own risk.

The judges who testified before the Senate are:

Judge Harold A. Baker, a sitting federal judge in Illinois who served on the intelligence court until 2005; Judge Stanley S. Brotman, who left the panel in 2004; Judge John F. Keenan, who left in 2001; and Judge William H. Stafford Jr., who left in 2003. All four sit on the federal judiciary.

Yeah, these judges did testify. Unfortunately for you, these are the judges that said that Dubya doesn't have power to do wiretaps in contravention of FISA (from the "Bartster"'s link):

In a rare glimpse into the inner workings of the secretive court, known as the Foreign Intelligence Surveillance Court, several former judges who served on the panel also voiced skepticism at a Senate hearing about the president's constitutional authority to order wiretapping on Americans without a court order. They also suggested that the program could imperil criminal prosecutions that grew out of the wiretaps.

Judge Harold A. Baker, a sitting federal judge in Illinois who served on the intelligence court until last year, said the president was bound by the law "like everyone else." If a law like the Foreign Intelligence Surveillance Act is duly enacted by Congress and considered constitutional, Judge Baker said, "the president ignores it at the president's peril."

"Bart", OTOH, had previously cited "FISC judges" as supporting his contention that the preznit has plenary authority to wiretap and thus that FISA is unconstitutional. One of the "judges" he cited for support was actually a magistrate judge, and the rest of those supporting "Bart" (and the other RW foamers) back then were not FISC judges. See here for more about the "debate" at that time. Unfortunately, in blog migrations, the comments section was lost, so "Bart"'s -- ummm, 'contributions' -- are blissfully lost to history, but "Bart" was flogging the Kornblum testimony and ignoring that of the FISA judges ... a record he's maintained to this day.

I think this is what you were thinking of, EL....

Cheers,
 

arne:

Judge Allan Kornblum was a magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. Although he did not sit on the FISC, he has more than a little knowledge of the intent of FISA.

I only cited the NYT article to identify the FISC judges because EL was under the misapprehension from the usual suspects that they were not really judges. I did not cite the NYT article for content because the New York Times reporter and probable felon for unlawfully disclosing the TSP, Eric Lichtblau, had inartfully omitted much of the testimony to cover his ass. Powerline did a good job outing Lichtblau here.

EL, you really need to double check everything Glenn Greenwald posts about FISA. I called him continuously on several repeated misrepresentations/lies on FISA law and he banned me from his blog rather than respond.
 

S. Hrg. 109-500 -- Wartime Executive Power and the National Security Agency's Surveillance Authority - February 6, February 28, and March 28, 2006
.
Page way down to March 28th, or use a search for "Kornblum" (or the name of another Judge) to get to the sworn testimony of the Judges. It's worth the time it takes to read it.
 

-- probable felon for unlawfully disclosing the TSP --
.
If Lichtblau is a felon for that, so is the entire NYT. FWIW, a mandatory part of the penalty for conviction is forfeiture of all property used ... to commit ... such violation. It'd be "Bye-bye printing presses and web servers."
.
But I see no way that the contents of the December 2005 article satisfy the statutory element of "communication intelligence activities," as expressed in 18 USC 798.
.
That term of art is defined, in part, as "procedures and methods used in the interception of communications." The fact that surveillance is undertaken outside of the approval/oversight boundaries of a statute does not disclose procedures or methods.
.
The administration and its defenders strain mightily to conflate "policy and law" with "methods and procedures," but it's ludicrous to maintain that the disclosure of a law, or a disclosure that the law was broken (the government obtained communications in the US without warrants), amounts to a felony disclosure of classified information.
 

"Bart" DeDicta:

Powerline did a good job outing Lichtblau here.

AL (the other one) did a good job of outing Hindrocket in the post I linked to above.

EL, you really need to double check everything Glenn Greenwald posts about FISA. I called him continuously on several repeated misrepresentations/lies on FISA law and he banned me from his blog rather than respond.

Glenn tolerated (Gawdonlyknowswhy) your repeated misstatements of facts (and left it to the Jeffersonian process to which I contributed significantly to correct you). He banned you for falsely calling him a liar, and refusing to back up your charge (for the very good reason that such was impossible).

Cheers,
 

Here's "Bart"'s banning on Greenwald's blog, for anyone interested (more here).

Cheers,
 

Unfortunately, in blog migrations, the comments section was lost, so "Bart"'s -- ummm, 'contributions' -- are blissfully lost to history, but "Bart" was flogging the Kornblum testimony and ignoring that of the FISA judges ... a record he's maintained to this day.

I think this is what you were thinking of, EL....

Thanks, Arne. I was, indeed, thinking of the comments threat in which Bart quoted some of the judges appearing to support his views and someone else gave the proper context for those remarks -- very different from what Bart implied. But I see cboldt has done us one better; he has linked to the actual testimony so we can all read it and judge for ourselves.
 

Bart,

Leave me out of your feud with Greenwald. We've had a productive discussion, I think. You say that FISA unconstitutionally "directs" foreign intelligence by imposing an individual probable cause standard, something unrealistic in a foreign intelligence context. That is your best answer to date. Maybe we can develop that thought further on some future thread, but this one is getting old.

In the meantime, I will content myself with reading what the judges actually said, unvarnished by your interpretation, Greenwald's, Hindraker's, Lichtblau's or anyone else's except an Enlightened Layperson's.
 

Bart, Article 1 gives the Congress 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 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;"

"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;"

Congress makes the rules which govern the military. That is the plain text of the Constitution. The president commands the military within the constraints set by Congress. The collection of intelligence, not enumerated, could hardly be expected to supersede "making rules for captures" which IS enumerated. So for example, the president cannot flout prohibitions on torture prescribed by congress.

There isn't any reason why the collecting of intelligence should fall outside the purview of congress to set rules and make law. Congress makes the rules, the president is sworn to act within those rules. That is the plain meaning of the Constitution.
 

"Arne Langsetmo" --

"Bart" DeCut'n'paste:

el:

Rely upon Arne and Glenn's bloviations at your own risk.

The judges who testified before the Senate are:

Judge Harold A. Baker, a sitting federal judge in Illinois who served on the intelligence court until 2005; Judge Stanley S. Brotman, who left the panel in 2004; Judge John F. Keenan, who left in 2001; and Judge William H. Stafford Jr., who left in 2003. All four sit on the federal judiciary.

"Yeah, these judges did testify. Unfortunately for you, these are the judges that said that Dubya doesn't have power to do wiretaps in contravention of FISA (from the "Bartster"'s link):"

"In a rare glimpse into the inner workings of the secretive court, known as the Foreign Intelligence Surveillance Court, several former judges who served on the panel also voiced skepticism at a Senate hearing about the president's constitutional authority to order wiretapping on Americans without a court order. They also suggested that the program could imperil criminal prosecutions that grew out of the wiretaps.

"Judge Harold A. Baker, a sitting federal judge in Illinois who served on the intelligence court until last year, said the president was bound by the law "like everyone else." If a law like the Foreign Intelligence Surveillance Act is duly enacted by Congress and considered constitutional, Judge Baker said, "the president ignores it at the president's peril.""

""Bart", OTOH, had previously cited "FISC judges" as supporting his contention that the preznit has plenary authority to wiretap and thus that FISA is unconstitutional. One of the "judges" he cited for support was actually a magistrate judge, and the rest of those supporting "Bart" (and the other RW foamers) back then were not FISC judges. See here for more about the "debate" at that time. Unfortunately, in blog migrations, the comments section was lost, so "Bart"'s -- ummm, 'contributions' -- are blissfully lost to history, but "Bart" was flogging the Kornblum testimony and ignoring that of the FISA judges ... a record he's maintained to this day."

GASP! --

Ya mean Bart DeBarfer

LIED!?

To say I'm SHOCKED! SHOCKED! would be to

LIE!
 

"mattski" --

Bart, Article 1 gives the Congress 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 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;"

"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;"

Congress makes the rules which govern the military. That is the plain text of the Constitution. The president commands the military within the constraints set by Congress. The collection of intelligence, not enumerated, could hardly be expected to supersede "making rules for captures" which IS enumerated. So for example, the president cannot flout prohibitions on torture prescribed by congress.

There isn't any reason why the collecting of intelligence should fall outside the purview of congress to set rules and make law. Congress makes the rules, the president is sworn to act within those rules. That is the plain meaning of the Constitution.

"Oh, what a tangled web we weave
When first we practice to deceive . . . ."

And we can depend on Bart DeBarfer being in the spin and weave business.

The rules:

1. If it's convoluted on its face, and expressed by DeBarfer, it's a lie.

The Constitution:

Congress has exclusive authority to make the laws.

The Executive has the exclusive authority and responsibility to be bound by the laws made by Congress and applied to the Executive.

The oceanic limits of the nation are not the entire oceans. Yet Congress isn't limited to making laws which apply to the Executive only within those limits. If Congress tells the Executive it can't use pea-shooters in Iraq, then the Executive is barred using pea-shooters in Iraq.
 

mattski:

Regulate when applied to the military simply meant to organize and discipline the force.

Congress accordingly exercised this power by enacting the UCMJ and its various previous incarnations to promote the good order and discipline of the individual soldier. The UCMJ is essentially a criminal code and does not attempt to assume command authority to choose the operations to which the military may or may not be employed.

The Judiciary has never held since the dawn of the Republic that the regulation clause granted Congress command authority to choose the operations to which the military may or may not be employed. Never.

There is simply no textual basis or precedent by Congress or the Judiciary to argue that the regulation clause granted Congress command authority to choose the operations to which the military may or may not be employed. Nada, zip, zilch, nothing.
 

Baghdad Bart is the worst lying scumbag I have ever encountered.
 

"Bart" DePalma says:

mattski:

Regulate when applied to the military simply meant to organize and discipline the force.

Congress accordingly exercised this power by enacting the UCMJ and its various previous incarnations to promote the good order and discipline of the individual soldier.

Which explains why the UCMJ is only a small portion of Title 10 of the U.S. Code.

The rest of it is just superfluous, explanatory stuff that fleshes out the real meat (and the only Constitutionally authorised part), in the UCMJ.....

As JNagarya points out, Congress can require that the troops not use peashooters, and as I've pointed out more than once (but which "Bart" ignores), Congress can require that the troops use 9mm arms ... or even, should Congress be so stoopidly inclined, go to war armed only with sporks.

If "Bart"'s contention was that the entirety of the grant to "regulate" the military is just the UCMJ, hen "Bart"'s got a lotta 'splainin' to do WRT the rest of Title 10 (of which he can't point to a single case where courts have held that said Title 10 exceeds the mandate of Congress and intrudes on the executive's "Article II powers".

But facts don't get in the way of a (repeated ad nauseam) "Bart" 'argument'.....

Cheers,
 

"Bart DePalma" --

"mattski:

"Regulate when applied to the military simply meant to organize and discipline the force."

Which is done by Congress, the body given exclusive authority to make the law.

It is done in the form of WRITTEN LAW -- STATUTE. See "The Militia Act" of 1972.

Or all of "Title 10," not only the parts of it you like.

"Congress accordingly exercised this power by enacting the UCMJ and its various previous incarnations to promote the good order and discipline of the individual soldier. The UCMJ is essentially a criminal code and does not attempt to assume command authority to choose the operations to which the military may or may not be employed."

And the Congress has enacted additional statutes governing the military itself.

"The Judiciary has never held since the dawn of the Republic that the regulation clause granted Congress command authority to choose the operations to which the military may or may not be employed. Never."

Nonsense. When Congress exercises its exclusive authority to declare war, directing the Executive to do so, it doesn't declare war against all countries, therefore the Executive does not have any inherent ANYTHING to attack/invade all countries.

If a declaration is against only Country A, the Executive DOES NOT have the "inherent" ANYTHING or "discretion" to instead, or also, attack/invade countries B-Z.

"There is simply no textual basis or precedent by Congress or the Judiciary to argue that the regulation clause granted Congress command authority to choose the operations to which the military may or may not be employed. Nada, zip, zilch, nothing."

If only Congress has the exclusive authority to declare war, it also has the exclusive authority to limits the declaration.

Barfin' Bart notwithstanding.
 

Arne Langsetmo --

"Bart" DePalma says:

mattski:

Regulate when applied to the military simply meant to organize and discipline the force.

Congress accordingly exercised this power by enacting the UCMJ and its various previous incarnations to promote the good order and discipline of the individual soldier.

"Which explains why the UCMJ is only a small portion of Title 10 of the U.S. Code.

"The rest of it is just superfluous, explanatory stuff that fleshes out the real meat (and the only Constitutionally authorised part), in the UCMJ.....

"As JNagarya points out, Congress can require that the troops not use peashooters, and as I've pointed out more than once (but which "Bart" ignores), Congress can require that the troops use 9mm arms ... or even, should Congress be so stoopidly inclined, go to war armed only with sporks."

One needn't go further back than "The Militia Act" of 1792, which was enacted by a Congress populated by Founders and Framers, and which became "Title 10," to find the Congress stipulating in specific terms the weaponry and accoutrements REQUIRED of troops.

That statute is silent about sling-shots; but as it is exceedingly detailed about that which is required, one can be certain sling-shots were ruled out.

But even as far back as 17th century colony law, the weaponry, etc., was "regularized" by regulatin' statutes enacted by the gov't.

They even stipulated the ratio, by specific number, of required "pikemen".
 

To make a long story short, the plain meaning of the Constitution is at cross-purposes with our friend Bart DePalma...

But he fancies himself a "patriot"!
 

jnagarya said...

The power to arm the standing military and the militia does not arise from the regulation clause, but rather these two other clauses:

To raise and support Armies...

To provide for organizing, arming, and disciplining, the militia...

The power to arm the military is not a command power directing the operations of the military.
 

"Bart DePalma" --

jnagarya said...

The power to arm the standing military and the militia does not arise from the regulation clause, but rather these two other clauses:

To raise and support Armies...

To provide for organizing, arming, and disciplining, the militia...

It wasn't I, Barfin' Bullshitter, who made those assertions -- as you know.

You're a rat, thereafter you're cornered. Attempt to bullshit your way out of the corner into which you've painted yourself with someone who believes your bullshit aimed at being a criminal Cheney/thug-wannabe.

"The power to arm the military is not a command power directing the operations of the military."

Again, you quote someone else in order to respond not to the person you quote, but instead to me.

1. Congress alone has authority to declare war.

2. Even if an Executive is as passive as you endeavor to lie Congress into being -- Congress is not the handmaiden of the Executive -- the Executive is DIRECTED thereby -- as in SHALL.

3. If Congress' declaration stipulates the country/ies to be defended against -- attacking is a crime against humanity -- that means the Executive is NOT PERMITTED to defend against/attack country/ies Congress did not stipulate.

The Executive is not exempt from the rule of law -- as made by Congress, and as ruled upon by the Judiciary.

Interesting, is it not? Congress and the Judiciary can make law -- but the Executive CAN NOT.

But I've an advantage of you. Here's some relevant history -- an accurate generalization, and you're welcome to research the particulars:

The legislature in Massachusetts has always been called "general court". When established, and for seeming-aeons thereafter, because there was no separation of powers, the General Court --

1. Enacted the laws; and

2. The same men who enacted the laws prosecuted violations of the laws; and,

3. Sentenced those found guilty of violating the laws.

Judge, jury, executioner.

The three powers -- make laws, judge violations of them, sentence the violators -- have their artifacts in our Congress. It makes the laws; it prescribes the penalties; and it can prosecute violations of those laws.

The "exempt from laws/Congressional oversight" lie notwithstanding.

Why is that the reality, Barfin' Bullshitter? Because Congress is the branch that oversees the other two branches -- which two branches do not oversee, and thus straightjacket -- the Congress.

(Does the SC -- unlike the Executive -- have the authority to declare a Congressional enactment unconstitutional? Yes. But the Congress can overturn the SC. The Executive can overturn NEITHER.)

The Executive is, as are the other two branches, a SERVANT. But two of those SERVANTS have greater oversight than the one that has none: the Executive.

You entirely miss the point: as James Madison elegantly said:

Gov't is the means by which the community regulates itself.

The power to govern We the people belongs to and is derived from We the people. Just gov't governs We the people with the permission of We the people.

The gov't is SERVANT, in all its particulars. There is no constitutional way that any branch -- most especially the Executive, which is at greatest risk of becoming rogue -- supercedes, or can act independently from We the people.

In view of yourself, of course, I can understand your refusal to trust We the people to govern ourselves: you're an anti-intellectual anti-elitist elitist who, in need of the certainty necessary to those unfree and hostile to freedom, must insist that one or another branch has the constitutional authority to ignore the Constitution.

In short, Cheney/punk: you make no sense. And you are not talking law; you are talking America-Hater ideological claptrap as substitute for law.

There's an old saying:

If the law is against you, pound on the facts. If the facts are against you, pound on the law.

But if the law and facts are against you, swear your teeth loose against facts and law.

There is absolutely no way that the Executive is beyond the reach of Congressional oversight, regulation -- and when necessary, impeachment and removal; beyond, that is, the Constitution itself. Anyone who preaches that line is an enemy of not only the rule of law -- "lawyer" -- but of my country.

Those being the facts, child:

Take yourself in your own hand, shove yourself up your own ass, and shout around in the dark there for someone to talk to who is stupid enough to believe your anti-Americanism is its opposite.

And don't forget to puff up your chest with pride, while wearing your Made in Communist China flag lapel-pin/trinket. The world is against your view, not because you are a hold-out correct elitist against the "politically correct," but because you are wrong.

Torture is a war crime; defending torturers and torture, as you do, makes you as much a depraved Saddam Hussein as those you defend.

You have nothing to say that is true, therefore you have nothing to say of any value whatsoever.
 

Amen.
 

.
 

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