Decision ‘08

Responding To Greenwald - Again

There’s been a lot of back and forth between blogs on the right and Glenn Greenwald lately, partly because, much to his credit, he’s one of the few leftie bloggers who will engage in substantive debates and link back to the blogs he’s criticizing, and partly because he’s been doing good work on the NSA surveillance issue. His latest post has come recommended to me by at least two commenters, and he has made what is possibly a very significant find of an administrative position re: probable cause and FISA.

Well, I’m not an attorney, but I’ve made it clear that I’m not convinced that the NSA program was legal; we know, however, that the administration argument is that FISA does not even apply here; instead, the authorization is that provided by the president, using his interpretation of the AUMF (and just because you don’t agree with the president doesn’t make him incorrect - there is a lawsuit working from the ACLU, so hopefully, the legality will be determined definitively by the courts at some point). From yesterday’s Q & A with Hayden:

On FISA and the 72 hours:QUESTION: General Hayden, the FISA law says that the NSA can do intercepts as long as you go to the court within 72 hours to get a warrant. I understood you to say that you are aggressively using FISA but selectively doing so. Why are you not able to go to FISA as the law requires in all cases? And if the law is outdated, why haven’t you asked Congress to update it?

GEN. HAYDEN: Lots of questions contained there. Let me try them one at a time.

First of all, I need to get a statement of fact out here, all right? NSA cannot — under the FISA statute, NSA cannot put someone on coverage and go ahead and play for 72 hours while it gets a note saying it was okay. All right? The attorney general is the one who approves emergency FISA coverage, and the attorney general’s standard for approving FISA coverage is a body of evidence equal to that which he would present to the court. So it’s not like you can throw it on for 72 hours.

I’ve talked in other circumstances — I’ve talked this morning — about how we’ve made very aggressive use of FISA. If you look at NSA reporting under this program — you know, without giving you the X or Y axis on the graph — NSA reporting under this program has been substantial but consistent. This is NSA counterterrorism reporting. Substantial but consistent. NSA reporting under FISA has gone like that. FISA has been a remarkably successful tool. We use it very aggressively.

In the instances where this program applies, FISA does not give us the operational effect that the authorities that the president has given us give us. Look. I can’t — and I understand it’s going to be an incomplete answer, and I can’t give you all the fine print as to why, but let me just kind of reverse the answer just a bit. If FISA worked just as well, why wouldn’t I use FISA? To save typing? No. There is an operational impact here, and I have two paths in front of me, both of them lawful, one FISA, one the presidential — the president’s authorization. And we go down this path because our operational judgment is it is much more effective. So we do it for that reason. I think I’ve got — I think I’ve covered all the ones you raised.

If Hayden is saying that FISA is not operative for those wiretaps authorized by the president, then doesn’t that make Greenwald’s discovery a lot less explosive than it’s being played up to be?

Greenwald makes much of the administration’s lack of support for introduced legislation by Mike Dewine that would have lowered the probable cause standard for FISA - but as Hayden says, the administration used FISA aggressively and continues to do so, but those uses are seperate from the President’s program. Why lobby to change FISA to cover situations that you have been assured are covered by other, legal authorization? (And remember, it is not the job of Michael Hayden to determine legality - he asked for, and received, numerous opinions from legal counsel that the program was legal). In other words, probable cause is a sufficient standard for eavesdropping covered under FISA - and that’s not at all what we’re talking about here.

The president’s program, we are now led to believe, targets communications between known or suspected al Qaeda operatives and people in the U.S., including American citizens. It is conducted under presidential authority, and the president clearly believes he has been given that authority. Mr. Greenwald and others can and will make persuasive cases that the belief is mistaken, but this seeming contradiction regarding the Dewine legislation is only a contradiction if you buy the notion that the communications in question were authorized by FISA and not by presidential authority.

Let me stress one more time: I am not arguing that the administration’s position is the correct one; nor am I questioning the merits of alternative interpretations such as that of Greenwald (and as I stated, though I may not agree with his conclusions, he is doing fine work on this story and getting a completely just amount of attention for it). I am merely arguing that Glenn’s latest discovery, while quite interesting, is not the glaring contradiction it is made out to be if one examines the assumptions underlying the administration’s position, regardless of the correctness of those assumptions.

UPDATE 11:34 a.m.: Related, from the AG Speech yesterday:

We do not have to decide whether, when we are at war and there is a vital need for the terrorist surveillance program, FISA unconstitutionally encroaches – or places an unconstitutional constraint upon – the President’s Article II powers. We can avoid that tough question because Congress gave the President the Force Resolution, and that statute removes any possible tension between what Congress said in 1978 in FISA and the President’s constitutional authority today.

68 Responses to “Responding To Greenwald - Again”

1 Fargus Says:
January 25th, 2006 at 1:43 pm
An interesting side effect of the Administration’s arguments in this case is that the Patriot Act seems to be rendered pointless, since the argument goes that the AUMF gave the President the right to act in whatever way he saw as most helpful to national security.

I read the Gonzales speech, and the thing that doesn’t sit right with me is this: He references the Hamdi case and says that since indefinite detentions weren’t explicitly stated as allowed in the AUMF, but were upheld by the Supreme Court, that basically anything that’s not stated explicitly in the AUMF is allowed by precedent. That’s not an argument that holds much water, to me.
2 Glenn Greenwald Says:
January 25th, 2006 at 2:40 pm
Mark - Thanks for the nice words. I think everyone has an obligation to address opposing views to their arguments if they want to advance them. I’m going to write a post tomorrow addressing all of the responses to my post, including yours, but for now I just wanted to note the following:

The Administration’s position and Gen. Hayden’s position is NOT that FISA is inapplicable to the eavesdropping they are doing. In fact, Gen. Hayden said yesterday that he has “two paths” to choose from when engaging in this eavesdropping - FISA or the President’s FISA-bypass program, and he can choose. He said he chooses the President’s rather than FISA for this eavesdropping because it’s more operationally efficient.

But the question has always been - WHY did the Administration think it had a need to create a “second path”? Given how permissive FISA is and how rubber-stamping the FISA court was with virtually every warrant — and given that FISA was the consensus for 30 years between all branches as to how eavesdropping should be regulated — why wasn’t the FISA process sufficient to enable them to do all the eavesdropping they wanted? The problem is that FISA requires judicial oversight to prevent abuse, and the President’s program has no oversight with regard to who they are eavesdropping on, so it is an extremely important question why they chose to eavesdrop without oversight rather than with it.

The Administration could never really answer that question until yesterday, when Hayden said that FISA was too restrictive because it required a demonstration of probable cause to get warrants, and they couldn’t always meet that standard (the Administration leaked this same explanation to Fox News (see Media Matters today)).

But this explanation directly contradicts what they said in 2002, when they said they didn’t need the DeWine Amdendment to loosen the FISA standards because the reuqirement that they demonstrate probable cause was not posing any problems in doing the eavesdropping they wanted. If, as Hayden said yesterday, probable cause was a barrier necessitating the creation of this secret, outside-FISA eavesdropping program, why would they have told Congress in 2002 that probable cause was not a problem and they were able to do all of the eavesdropping they wanted?

And if the 72-hour window wasn’t good enough, why did the DoJ specifically tell Congress how great that window was and how it enabled them to have all of the speed and agility they needed in eavesdropping on terrorists?

In addition, Bush’s own DoJ said that they thought it was quite possibly unconstitutional to eavesdrop without probable cause - even with the judicial oversight required by DeWine’s amendment and even if it was only applied to non-U.S. persons. Thus, if -as the DoJ said - there were serious constitutional concerns about eavesdropping without probable cause (even where it included judicial oversight and only as to non-U.S. persons, as was the case for the DeWine legislation), then it is logically necessary that there are at least equal (and really greater) constitutional problems with the secret, oversight-less the Administration is doing - with no probable cause and applied to U.S. persons as well.

The reason it’s so significant is becasue the Administration’s statements in 2002 that it could do everything it needed under FISA directly contradict Hayden’s statements yesterday that FISA was too restrictive which was why they couldn’t stay within it.
3 Mark Says:
January 25th, 2006 at 3:01 pm
Well, that’s a comprehensive reply, and I look forward to your longer post tomorrow…just a couple of quick thoughts:

Saying that FISA was not operative was not the best choice of words on my part, and I understand and agree that Hayden was saying FISA applied, but that the president’s order also applied.

It appears to me that Hayden is saying, in that relatively small group of communications where the president’s authorization and FISA both apply, he sees the authorization is being both operationally preferable and (oh, boy, I’m chanelling Al Gore) ‘the controlling legal authority’. If a wiretap satisfied FISA, it would by definition satisfy the presidential authorization, but for the small group that only satisfied the authorization, the authorization was enough.

And that’s why I think the administration can say with a straight face: FISA’s 72-hour requirement is perfectly acceptable - for the limited number of cases where it is not, we have the president’s authorization to proceed…
4 Lex Says:
January 25th, 2006 at 3:48 pm
Given that FISA says itself that it is the only legal authority for wiretapping U.S. citizens, and that the administration successfully argued in this brief that a statute cannot be amended in the absence of clear Congressional intent to do so (i.e., if the AUMF or some other act of Congress didn’t explicitly amend FISA, the admininstration cannot claim that, yes, it did), I remain puzzled as to what possible legal basis exists for warrantless domestic wiretapping. Please help me out.

Thanks.
5 Dan Becker Says:
January 25th, 2006 at 3:53 pm
In response to: for the limited number of cases where iti is not, we have the president’s authorization to proceed…

However, as I understand the issue, the president does not have the authorization to give the authorization thus the general does not have anything. If your summary is correct in how the president sees it, then he is claiming the authority to step outside of the law.

Has the president’s team pointed out the actual language in the AUMF that give the authorization? And if congress did pass a law the usurps the constitution #4, would they not be in violation for amending the constitution without state/people approval thus again the president would not have the authorization?

Eitherway, the laws are broken either by congress in giving something they could not or by the president claiming something he does not have because it was never given or because it was not congress’ to give.
6 Mark Says:
January 25th, 2006 at 4:02 pm
Lex, the President and the Justice Department say have a different view on FISA being the sole authority (and the courts will have to decide). From the AG’s speech:

…[S]ome people have argued that, by their terms, Title III and FISA are the “exclusive means” for conducting electronic surveillance. It is true that the law says that Title III and FISA are “the exclusive means by which electronic surveillance . . . may be conducted.” But, as I have said before, FISA itself says elsewhere that the government cannot engage in electronic surveillance “except as authorized by statute.” It is noteworthy that, FISA did not say “the government cannot engage in electronic surveillance ‘except as authorized by FISA and Title III.’” No, it said, except as authorized by statute — any statute. And, in this case, that other statute is the Force Resolution.

Even if some might think that’s not the only way to read the statute, in accordance with long recognized canons of construction, FISA must be interpreted in harmony with the Force Resolution to allow the President, as Commander in Chief during time of armed conflict, to take the actions necessary to protect the country from another catastrophic attack. So long as such an interpretation is “fairly possible,” the Supreme Court has made clear that it must be adopted, in order to avoid the serious constitutional issues that would otherwise be raised.

Dan, the AG says actual language is not necessary and explains:

Some have suggested that the Force Resolution did not authorize intelligence collection inside the United States. That contention cannot be squared with the reality of the 9/11 attacks, which gave rise to the Resolution, and with the language of the authorization itself, which calls on the President to protect Americans both “at home and abroad” and to take action to prevent further terrorist attacks “against the United States.” It’s also contrary to the history of wartime surveillance, which has often involved the interception of enemy communications into and out of the United States.

Against this backdrop, the NSA’s focused terrorist surveillance program falls squarely within the broad authorization of the Resolution even though, as some have argued, the Resolution does not expressly mention surveillance. The Resolution also doesn’t mention detention of enemy combatants. But we know from the Supreme Court’s decision in Hamdi that such detention is authorized. Justice O’Connor reasoned: “Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war…Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.”

As Justice O’Connor recognized, it does not matter that the Force Resolution nowhere specifically refers to the detention of U.S. citizens as enemy combatants. Nor does it matter that individual Members of Congress may not have specifically intended to authorize such detention. The same is true of electronic surveillance. It is a traditional incident of war and, thus, as Justice O’Connor said, it is “of no moment” that the Resolution does not explicitly mention this activity.

These omissions are not at all surprising. In enacting the Force Resolution, Congress made no attempt to catalog every aspect of the use of force it was authorizing.

Instead, following the model of past military force authorizations, Congress—in general, but broad, terms—confirmed the President’s authority to use all traditional and legitimate incidents of military force to identify and defeat the enemy. In doing so, Congress must be understood to have intended that the use of electronic surveillance against the enemy is a fundamental component of military operations.
7 not the senator Says:
January 25th, 2006 at 4:32 pm
But neither legal justification answers the question of judicial oversight. Yes, virtually all Democrats believe we should be spying on al Qaeda but the reason we want judicial oversight is that Republicans have proven previously, by break-ins and by illegally wiretapping the Democratic National Committee, that they’ll abuse their power. Thank you, but we’ll trust but verify.
8 Mark Says:
January 25th, 2006 at 4:35 pm
not the senator, surely you don’t equate all Republicans with the Nixon Administration…that we be like me saying you can’t trust Democrats because LBJ lied about the Tonkin Gulf incident…
9 Tim Says:
January 25th, 2006 at 4:46 pm
Comrades,

I would add this bit for consideration. Folks forget that one of the largest Echelon stations is in Great Britain. The other one is in Australia. Both perform sigint ops on behalf of the US, and some of that info is also shared with our foreign intelligence partners.

If you are using a cell phone, or a Nextel walkie-talki, or any other non-landline comm system, then you are broadcasting into the atsmophere, free and clear, and cannot have a presumptive right to privacy. Anyone can listen in. It is no different than were you speaking to someone in a coffee shop or a street corner. You have, in such areas, no expectation of privacy.

The FBI used this very principle to bring down many of the mob bosses. They thought that, just because they were using a wireless service, that the feds needed a wiretap authorization. The FBI did not, and could and did listen in. And taped it too.

Who is to say that the Echelon stations overseas are not picking up the data intercepts using foreign nationals on foreign territory” It could well be that we ask MI-5 to let us know if they get anything from such&such a phone number. In that case, it’s our intel folks getting the info from our allies’ intel folks. No law against that that I can see…

Anyway, just some food for thought.

Respects,

Tim
10 peter Says:
January 25th, 2006 at 5:17 pm
Fourth amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Given the President’s enthusiasm for strict constructionism, one would think that he would act as though “upon probable cause, supported by oath or affirmation” means what it says –
11 Dave Says:
January 25th, 2006 at 5:21 pm
Gonzo is dishing some pretty thin gruel:

“Some have suggested that the Force Resolution did not authorize intelligence collection inside the United States. That contention cannot be squared with the reality of the 9/11 attacks, which gave rise to the Resolution, and with the language of the authorization itself, which calls on the President to protect Americans both “at home and abroad” and to take action to prevent further terrorist attacks “against the United States.””

I’ll square it for him: This means defending Americans who are in the United States or abroad. It does not give him license to use military assets against Americans in the United States.

The Resolution also doesn’t mention detention of enemy combatants.

It doesn’t mention anything because it assumes the president will use this authorization within the laws and treaties that have already been written, i.e. FISA, Geneva Convention, etc. Gonzo’s logic is that becuase AUMF doesn’t say what the president can and cannot do, then he can do anything.
12 Mark Says:
January 25th, 2006 at 5:33 pm
Peter, the AG speech again:

The Fourth Amendment has never been understood to require warrants in all circumstances. For instance, before you get on an airplane, or enter most government buildings, you and your belongings may be searched without a warrant. There are also searches at the border or when you’ve been pulled over at a checkpoint designed to identify folks driving while under the influence. Those searches do not violate the Fourth Amendment because they involve “special needs” beyond routine law enforcement. The Supreme Court has repeatedly held that these circumstances make such a search reasonable even without a warrant.

The terrorist surveillance program is subject to the checks of the Fourth Amendment, and it clearly fits within this “special needs” category. This is by no means a novel conclusion. The Justice Department during the Clinton Administration testified in 1994 that the President has inherent authority under the Constitution to conduct foreign intelligence searches of the private homes of U.S. citizens in the United States without a warrant, and that such warrantless searches are permissible under the Fourth Amendment.

The key question, then, under the Fourth Amendment is not whether there was a warrant, but whether the search was reasonable. This requires balancing privacy with the government’s interests – and ensuring that we maintain appropriate safeguards. We’ve done that here.
13 Mark Says:
January 25th, 2006 at 5:36 pm
Dave, it’s not that simple; I don’t think you’ve really read the AG’s justification carefully re: the issue of detention and its applicability to the NSA program. You act as if the issue of detention was settled law of no controversy that we followed to the letter, but that’s not the case…you may recall quite an uproar over this issue if you strain your memory a bit…
14 Dave Says:
January 25th, 2006 at 6:16 pm
You’re right, it is more complicated and I appreciate your bugging me to read Gonzo’s speech for I came across this:

Sayeth Gonzo:
“You may have heard about the provision of FISA that allows the President to conduct warrantless surveillance for 15 days following a declaration of war. That provision shows that Congress knew that warrantless surveillance would be essential in wartime. But no one could reasonably suggest that all such critical military surveillance in a time of war would end after only 15 days.”

True, true. Go on:

“Instead, the legislative history of this provision makes it clear that Congress elected NOT TO DECIDE how surveillance might need to be conducted in the event of a particular armed conflict.”

Preach on brother!

“Congress expected that it would revisit the issue in light of events and likely would enact a special authorization during that 15-day period. That is exactly what happened three days after the attacks of 9/11, when Congress passed the Force Resolution, permitting the President to exercise “all necessary and appropriate” incidents of military force.

Huh?

No, the AUMF was the declaration of war. The president had 15 days after THAT to get further authorization from Congress. Unless there was a different declaration of war between 9/11 and then. (Seriously, was there?)

Here is what the FISA statute says:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.
15 dmac Says:
January 25th, 2006 at 6:34 pm
“…but the reason we want judicial oversight is that Republicans have proven previously, by break-ins and by illegally wiretapping the Democratic National Committee, that they’ll abuse their power.”

Most. Inane. Posting. Ever.
16 Tim Says:
January 25th, 2006 at 6:40 pm
Comrade Peter,

If you are going to quote the 4th ammendment here, then I would argue that, in light of it’s wording, nothing the President has done vis-a-vis comm intercepts has been unreasonable. Any person could reasonably conclude that what the President was ordering was well within his Constitutional authority, and was certainly designed to protect the Citizenry against attempted attacks by our enemies. I find nothing that the President has so far done to be in any way unreasonable.

AS to the AUMF, it is NOT a declaration of war, and since folks are being nit-picky here, then the 15-day period could not apply, since we are not in a declared state of war. Congress fell short of actually declaring war, it only supported the President’s Constitutional power to use military force in the defense of the nation and Constitution.

Besides which, I doubt that an actual declaration of war would be valid anyway, as it would be tantamount to recognition of the terrorists as a governmental or sovereign body, which would then bing into play certain articles of war.

It’s best to leave the terrorists as what they are: thugs, murdering thugs, and psychopathic murdering thugs. They are no different than the Mafia, or MS-13. They deserve no remorse, no quarter, and no pity. They are, as it were, beyond the pale, and only receive such humane treatment as we wish to allow them, since they represent no nation, no government, no race. They are simply lice upon the body politic, and need to be treated with as such.

Respects,

Tim
17 peter Says:
January 25th, 2006 at 7:08 pm
Mark: the AG is a lawyer defending his client, and in this instance, he has a pretty weak case. There are two significant distinctions between electronic surveillance and the examples which Gonzales cites:

1) When you board an airplane, you forfeit your right of privacy because of the obvious impracticability of obtaining search warrants for every passenger. The government has the right to prevent people from walking on airplanes with explosives, and it can achieve this only through searches at airports. (Similarly, the government does not need a warrant to search you at Customs). When you are pulled over at a checkpoint and the officer smells Jack Daniel’s, he does not need a search warrant to look for a bottle of Old Number 7. This is because there is an obvious need to prevent a drunk driver from continuing to drive, and you can’t have a judge standing by at every checkpoint to issue a warrant.

This is because certain activities can be regulated and monitored to provide for public safety, and their intrinsic nature makes obtaining a warrant infeasible. However, talking on the phone is not one of these activities, because there is nothing intrinsic about conversation which makes obtaining warrants infeasible.

2) Airport and roadway checkpoints select people randomly (or, at times, with probable cause) but are not directed at specific individuals. If you are at the airport, see your friend Jack, and yell “Hi, Jack!,” you might be searched by a TSA official. Or you might be searched randomly. But this would apply to anyone yelling “hijack” or chosen randomly — it is not targeted towards specific individuals, as the wiretaps were. (However, as noted in another thread, I don’t think there are constitutional issues with data mining, because of its neutral and untargeted nature).

3) There is a free speech aspect to wiretaps which is notably absent from the examples which Gonzales cites. When the government spies on its citizens, there is an obvious chilling effect on freedom of speech. This is the reason why there are defined and extensive restrictions on the government’s ability to monitor email and phone conversations: the freedom to speak freely and openly is at the core of the Bill of Rights, and the government’s intrusions into Americans’ phone calls, letters, and emails quite clearly impedes the exercise of that freedom.
18 peter Says:
January 25th, 2006 at 7:10 pm
Tim: I’m not arguing that the searches are unreasonable — however, there are two requirements in the amendment (reasonable searches and warrants with probable cause), and it is the latter which the President violates.
19 Mark Says:
January 25th, 2006 at 7:50 pm
peter, just to reiterate the point of my post: it was to explain how the administration could say the 72-hour limit is fine for FISA, regarding the Dewine legislation, and still conduct the NSA program without arriving at a logical contradiction.

I’m not attempting to make the administration’s argument for them; they have done so already; I’m merely pointing out what that argument is (at least the public one), not commenting on whether I think it is correct.

I, too, wish the administration had gone to Congress, with the benefit of hindsight and the handicap of my necessarily limited knowledge of what exactly is going on here.

However, the fact that you or I or Glenn or Harry Reid may have a different take on the facts doesn’t mean we have disproved the administration’s case; as I’ve noted on many occasions, I’m one of the few conservatives, it seems, who welcomes the ACLU lawsuit as a way to settle the dispute…
20 protein wisdom Says:
January 25th, 2006 at 8:01 pm
The Specter of coming Congressional grandstanding?

Here's a facsimile [pdf] of letter delivered by Arlen Specter to Attorney General Alberto Gonzales concerning the upcoming Congressional "wiretapping"/"domestic spying" show hearings. The complete text follows:
21 Tom Maguire Says:
January 26th, 2006 at 12:02 am
But this explanation directly contradicts what they said in 2002, when they said they didn’t need the DeWine Amdendment to loosen the FISA standards because the reuqirement that they demonstrate probable cause was not posing any problems in doing the eavesdropping they wanted.

Well, they also said that they were concerned that the proposed amendment would be found to be unconstitutional, which could taint all cases brought with FISA evidence; and they may well have figured that, since the DeWine amendment only lowers the bar for non-US persons, it doesn’t solve their problem.

As to the fourth amendment, it does mention both “unreasonable” and “probable cause” as standards; Gen. Hayden is quite emphatic about the difference in the last bit of his press conference.

Finally, I think folks are being a bit wilfull in refusing to reason by analogy - the Hamdi decision hardly meant that anyone could be held indefinitely without access to conventional courts, in contravention of standard Congressional statutes; however, it did mean that, in certain wartime circumstances, that result could happen.

I suspect the Admin and NSA lawyers are thinking the same thing here - just because 99.9% of wiretapping would be illegal even under the Bush rationale, the taps with a reasonable connection to Al Qaeda (but not a “probable cause” connection) would be OK.
22 eriposte Says:
January 26th, 2006 at 12:43 am
>>>> [HAYDEN] I have two paths in front of me, both of them lawful, one FISA, one the presidential — the president’s authorization.

If the warrantless domestic spying on U.S. persons is (hypothetically) legal under the “president’s authorization” but forbidden by FISA (which is why they claim they had to resort to the “president’s authorization”), then how could both paths be considered legal?

Put another way…

Either the second path (”president’s authorization”) violates FISA, in which case it is illegal if FISA defines what is legal.

Or if the “president’s authorization” is legal (it isn’t but let’s say it is hypothetically), then FISA is an illegal/unconstitutional law because it forbids something that is supposedly legal.

The only condition under which both paths could be legal (hypothetically) is if the Government’s actions are such as to not at all fall within the purview of the FISA statute.
Whatever we know about the spying program makes it clear that the Government’s actions fell very much within the FISA statute.
23 eriposte Says:
January 26th, 2006 at 12:51 am
>>> [GONZALES]: The Fourth Amendment has never been understood to require warrants in all circumstances. For instance, before you get on an airplane, or enter most government buildings, you and your belongings may be searched without a warrant. There are also searches at the border or when you’ve been pulled over at a checkpoint designed to identify folks driving while under the influence.

When I decide to fly I am made aware ahead of time that I could be searched. It’s NOT A SECRET. And I can decide to not fly a plane if I don’t like being searched. Same with checkpoints and everything else.

The spying program was SECRET and the targets had no choice because the Americans who were spied upon didn’t know that their email was being read or that their phone calls were being monitored.

Moreover, there is a vast difference between searches in public view where there is little probability of abuse (especially with the effective consent of the individuals - they choose to fly despite the probability of being searched), and secret searches conducted without probable cause or warrants or independent oversight, with high potential for abuse and with the spying conducted without the consent of the targets.
24 Bad Mojo Says:
January 26th, 2006 at 1:10 am
I believe there is an opinion by the supreme court indicating that the President’s authority is weakest in these situations (where Congress has expressly made it’s intentions known on a matter. How is that concept consistent with the President deciding this was a legal work-around. It just doesn’t make sense.

Conservatives: The feeling you are having right now is the uncomfortable sensation I had with Clinton before the impeachment hearings.

Defending a position that you know in your heart of hearts is wrong is not pleasant.
25 Kim Says:
January 26th, 2006 at 1:47 am
“Any person could reasonably conclude that what the President was ordering was well within his Constitutional authority, and was certainly designed to protect the Citizenry against attempted attacks by our enemies. I find nothing that the President has so far done to be in any way unreasonable.”

How would you know? You can’t. That’s the point.
26 the exile Says:
January 26th, 2006 at 2:17 am
Thanks to you and Glenn Greenwald for opening a respectful debate (and I assume you must thank Glenn for all the new traffic). One question: given your interpretation that the Force Resolution satisfies FISA (an issue you correctly note will ultimately be decided in the courts), is there ANY Presidential act that is not authorized by the Force Resolution, so long as the President can claim that it is necessary in the war against Al Qaeda? Come on, how can a genuine conservative even contemplate the interpretation of the Force Resolution (which makes no mention of surveillance) as a kind of “super law” that trumps a statute that does specifically address surveillance, and in quite unambiguous language? Isn’t that precisely the kind of interpretive overreach that your side is always accusing liberals and “activist judges” of doing?
27 searp Says:
January 26th, 2006 at 5:09 am
It strikes me that the assumption of extraordinary and controversial Presidential powers in the present “war” is exceedingly dangerous, as this “war” is likely to continue indefinitely. The administration cannot adequately justify its position without providing details on the program, which will not happen. We are stuck with having to tacitly approve controversial actions without a reasonable description of those actions and without independent review.

This is an extreme example of faith-based politics: Opinions on this matter must be formed without much knowledge of the program.

The public should not be in this position, Congress should not be in this position, and the courts should not be in this position.

It defies reason to think that the issue is a few wiretaps based on captured cell phones; FISA would have provided plenty of authority for prompt taps of these numbers.

There is something we don’t know about.
28 Ita Vero»Blog Archive » TImeline: Glenn Greenwald gets WaPo, KR and Conservative Bloggers to Listen to Reason Says:
January 26th, 2006 at 8:35 am
[…] Decision ‘08 » Blog Archive » Responding To Greenwald - Again If Hayden is saying that FISA is not operative for those wiretaps authorized by the president, then doesn’t that make Greenwald’s discovery a lot less explosive than it’s being played up to be? […]
29 pseudonymous in nc Says:
January 26th, 2006 at 8:42 am
Or if the “president’s authorization” is legal (it isn’t but let’s say it is hypothetically), then FISA is an illegal/unconstitutional law because it forbids something that is supposedly legal.

Precisely, and under the constitutional avoidance doctrine, construing FISA as an unconstitutional limitation on inherent executive power and the AUMF as an authorization for surveillance in contradiction to FISA raises far more serious constitutional questions than saying that the program is prima facie illegal and very likely unconstituional.
30 Doug Says:
January 26th, 2006 at 8:55 am
Mark,

You said….

“not the senator, surely you don’t equate all Republicans with the Nixon Administration…that we be like me saying you can’t trust Democrats because LBJ lied about the Tonkin Gulf incident…”

Exactly the reason for oversight and the FISA court. As I think these events over it becomes clearer to me that some form of transparency is essential to preclude abuses of power. The more power someone can exercise, the less we can trust that they will exercise it fairly.
31 revdave Says:
January 26th, 2006 at 8:57 am
I am appreciating the conversation between Glenn Greenwald and Mark Coffey. It restores a small bit of hope that reasonable debate and dialogue can move us closer to discerning truth. Such a tone and commitment is absent in the political rhetoric - whether to the left or right - that gets reported on and prumulgated as “news” in our nation.

So, cheers for your debate - keep up the standards you’re set. Maybe someone will learn from you.

(note - same post is being left on Greenwald’s blog.)
32 Fargus Says:
January 26th, 2006 at 9:00 am
Yeah, I’ve got to take issue with Gonzales’s interpretation of the AUMF, as well. He says we have to view FISA harmoniously with the AUMF, but I’d submit that there IS no fundamental disharmony betwen the two. That is, until you read the AUMF as expansively, and FISA as restrictively, as the Administration has decided to do.

Oversimplified, Gonzales’s argument regarding the Hamdi case seems to be that since the Supreme Court authorized the Administration to keep doing one thing that’s not explicitly stated in the AUMF, that they implicitly have the power to do anything that’s not explicitly stated in there. He says, “It doesn’t say enemy combatants, but we can do that. It doesn’t say warrantless wiretapping, so we can do that, too.” It’s ridiculous.
33 RobertP Says:
January 26th, 2006 at 9:01 am
Has anyone ever seen a request for FISA authorization? Wouldn’t that clear up a lot of this confusion? If it is 200 pages of intricate legal documents that would take a staff of dozens days to prepare, then FISA MIGHT be outdated. But, if it is a form with a minimal amount of data that could be quickly cut and pasted, then the argument is bullsh**.
I would like to see an actual FISA application that was approved, maybe something from last year with names and places blacked out, just to get an idea of scope.
34 daruskii Says:
January 26th, 2006 at 9:24 am
OH.MY.GOD.
A thoughtful, respectful, discussion of the issues!
Perhaps there is still hope.
Thank you all.
35 Mark Says:
January 26th, 2006 at 9:43 am
Bad Mojo…just to play devil’s advocate again (which is kind of the point of the whole post), the Administration lawyers argue that his power is actually at its high point here, because they argue that with the AUMF, the Congress did speak on the subject, and gave him the power to use whatever force (and ancilliary items such as SIGINT qualify) was necessary.

Again, not necessarily my position, but the administration’s…
36 Mark Says:
January 26th, 2006 at 9:49 am
the exile, as another commenter notes, I’m in the unenviable position here (and I do thank Glenn for the extra traffic, btw) of being a sort of spokesman for a policy that I do have qualms about, at least as regards its legality (however, I believe the program is absolutely necessary, and apparently so do the Democrats, since I’ve yet to see any of them actually call for it to stop).

Put another way: you’re quite right that a true conservative, who believes in limited government, can’t help but be troubled by too expansive a definition of presidential power…but these things have a way of evening out in the end under our brilliant system of government (witness the current debate)…
37 Mark Says:
January 26th, 2006 at 9:55 am
Fargus, I would quibble a bit with your characterization of the administration position - I don’t think Gonzales is saying we can do just ANYTHING we want because of Hamdi, but rather traditionally accepted wartime functions. From his speech:

In 2004, the Supreme Court considered the scope of the Force Resolution in the Hamdi case. There, the question was whether the President had the authority to detain an American citizen as an enemy combatant for the duration of the hostilities.

In that case, the Supreme Court confirmed that the expansive language of the Resolution —“all necessary and appropriate force”—ensures that the congressional authorization extends to traditional incidents of waging war. And, just like the detention of enemy combatants approved in Hamdi, the use of communications intelligence to prevent enemy attacks is a fundamental and well-accepted incident of military force.

This fact is borne out by history. This Nation has a long tradition of wartime enemy surveillance—a tradition that can be traced to George Washington, who made frequent and effective use of secret intelligence, including the interception of mail between the British and Americans.

And for as long as electronic communications have existed, the United States has conducted surveillance of those communications during wartime—all without judicial warrant. In the Civil War, for example, telegraph wiretapping was common, and provided important intelligence for both sides. In World War I, President Wilson ordered the interception of all cable communications between the United States and Europe; he inferred the authority to do so from the Constitution and from a general congressional authorization to use military force that did not mention anything about such surveillance. So too in World War II; the day after the attack on Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the United States. The terrorist surveillance program, of course, is far more focused, since it involves only the interception of international communications that are linked to al Qaeda or its allies.
38 Fargus Says:
January 26th, 2006 at 10:00 am
Then what’s the rationale for ignoring FISA? It’s not because it’s too broad, because it’s focused. It’s not because the burden of proof is lower than required by FISA, because it isn’t (according to spokespeople). Or, if the burden of proof IS lower than required by FISA (according to other spokespeople), then it’s because it’s OK to bypass FISA altogether, due to a strange parsing of the Fourth Amendment.

I guess I’ve just heard so much by way of contradictory justification that I can’t straighten out what the official line actually is.
39 Mark Says:
January 26th, 2006 at 10:11 am
Fargus, I keep going back to the AG speech because it seems to me he has made the best case to date (and RobertP, note the requirements for a FISA authorization):

Some have pointed to the provision in FISA that allows for so-called “emergency authorizations” of surveillance for 72 hours without a court order. There’s a serious misconception about these emergency authorizations. People should know that we do not approve emergency authorizations without knowing that we will receive court approval within 72 hours. FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted. That review process can take precious time.

Thus, to initiate surveillance under a FISA emergency authorization, it is not enough to rely on the best judgment of our intelligence officers alone. Those intelligence officers would have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied, then lawyers in the Department of Justice would have to be similarly satisfied, and finally as Attorney General, I would have to be satisfied that the search meets the requirements of FISA. And we would have to be prepared to follow up with a full FISA application within the 72 hours.

A typical FISA application involves a substantial process in its own right: The work of several lawyers; the preparation of a legal brief and supporting declarations; the approval of a Cabinet-level officer; a certification from the National Security Adviser, the Director of the FBI, or another designated Senate-confirmed officer; and, finally, of course, the approval of an Article III judge.

We all agree that there should be appropriate checks and balances on our branches of government. The FISA process makes perfect sense in almost all cases of foreign intelligence monitoring in the United States. Although technology has changed dramatically since FISA was enacted, FISA remains a vital tool in the War on Terror, and one that we are using to its fullest and will continue to use against al Qaeda and other foreign threats. But as the President has explained, the terrorist surveillance program operated by the NSA requires the maximum in speed and agility, since even a very short delay may make the difference between success and failure in preventing the next attack. And we cannot afford to fail.
40 Lex Says:
January 26th, 2006 at 10:22 am
Mark: I’ve got to take issue with something you quoted the AG as saying:

[[FISA must be interpreted in harmony with the Force Resolution to allow the President, as Commander in Chief during time of armed conflict.]]

Actually, now that I re-read it, I’m not taking issue with it. I’m agreeing with it … but seeing that the AG’s own argument flunks it.

I’m not a lawyer, but I understand that among the (likely) many legal principles relevant here are:

– Legislation, absent clear legislative intent to the contrary, should be construed in the way least likely to raise Constitutional questions.

– The specific trumps the general, and the explicit trumps the implicit.

(These two tenets might even have formal names, although if so I don’t know what they are.)

If those are, in fact, governing principles for interpreting statutes, then for the AUMC and FISA to be interpreted “in harmony,” as the AG argues should happen, the AUMC as written must be subordinate to FISA w/r/t wiretapping U.S. citizens because any authority it might provide is general and implicit authority, as against FISA’s specific, explicit ban on warrantless wiretapping of U.S. citizens. For AUMF and FISA to be interpreteded “in harmony,” FISA must trump AUMF.

AUMF could have trumped FISA had it been written specifically to do so, but it wasn’t. The president could have sought an amendment to the AUMF at any time after 9/11 and, at least until fairly recently, likely would have been given it. But he didn’t, choosing instead to violate FISA intentionally and serially.

Let me also offer thanks to all for the elevated tone of this discussion.
41 RobertP Says:
January 26th, 2006 at 10:26 am
Mark
Don’t take this the wrong way, but I find impossible to believe that the Attorney General, National Security Advisor, Director of the FBI, and Santa Claus have READ and approved EVERY SINGLE FISA REQUEST. All 13,000 of them! Come on, think about where you work, has the head of your company ever read 13,000 requests for printer paper? No, he signs off on the bill assuming that you need printer paper and that his underlings have done their job.

Beyond that, what is actually required? I’m a scientist, if someone told me I could have a $200,000 grant if I submitted a five page grant by midnight, I could have it done by noon. I’ve got all the information handy, I could cut and paste from previous documents, etc.

Also, I would be MORE interested in knowing what the LAW says is required to initiate a search that must be approved by FISA 72 hours later. If Bill Clinton tapped the conversations of NRA members following the Oklahoma City bombings, then said it was too much work because of (see Gonzales), I have a hard time believing anyone would take him at his word. I have been digging for the requirements written out in the law, but I am not a lawyer and I am just swamped at this point.
42 Mark Says:
January 26th, 2006 at 10:39 am
RobertP: from the act itself:

§ 1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court

(a)
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.
(3) The Attorney General shall immediately transmit under seal to the court established under section 1803 (a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence, and shall remain sealed unless—
(A) an application for a court order with respect to the surveillance is made under sections 1801 (h)(4) and 1804 of this title; or
(B) the certification is necessary to determine the legality of the surveillance under section 1806 (f) of this title.
(4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to—
(A) furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers; and
(B) maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain.
The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid.
(b) Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person.
43 Mark Says:
January 26th, 2006 at 10:42 am
Lex, all I can say on that front (because of a lack of expertise) as there are some who question the constitutionality of FISA - and as the MinuteMan points out, FISA as amended by Dewine would have pushed it even further towards that edge…to which you could rightly reply, without fear of contradiction, yes, but it has not actually been ruled unconstitutional…
44 Fargus Says:
January 26th, 2006 at 10:45 am
But if DeWine’s amendment to FISA would have pushed it closer to unconstitutionality, then how is what the Administration is authorizing NOT unconstitutional?
45 RobertP Says:
January 26th, 2006 at 10:55 am
Mark,
Thanks. This clears things up /snark/!!!

But, I do notice a few things. No mention of preapproval by Santa Claus or the FBI Director, or the NSA director.
Also, the talking points seem to suggest any domestic to foreign call is fair game, but this makes it seem that ONLY calls between foreigners is legit.

An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.

So, the attorney general has to say he is complying and report that to the House Permanent Select Committee (is this for every time or every month or every year).

The Attorney General shall immediately transmit under seal to the court established under section 1803 (a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence, and shall remain sealed unless—
(A) an application for a court order with respect to the surveillance is made under sections 1801 (h)(4) and 1804 of this title; or
(B) the certification is necessary to determine the legality of the surveillance under section 1806 (f) of this title.

This makes it seem that the SECURITY MEASURES must be approved or consulted on by the Director of Central Intelligence, not the certification. So, based on the law it appears that the Attorney General has a minimal amount of work necessary to spy without a warrant. All he has to do is submit a certification within 72 hours that says he is obeying the law, which is that he is NOT spying on Americans.
46 JayAckroyd Says:
January 26th, 2006 at 10:56 am
It is conducted under presidential authority, and the president clearly believes he has been given that authority.

That’s pretty clearly not true. They know this is against the law. It’s clearly in violation of the fiourth amendment, and all this Clintonian parsing of reasonable this and that makes it clear they know that.

Or, I guess you could say that it is true, but only under the clearly unconstitutional doctrine that the law only applies to the President when he permits it to do so. If they really believed this, they wouldn’t have pressured the Times to kill the story. Not a single one of their justifications for this action have borne even passing scrutiny.
47 Fargus Says:
January 26th, 2006 at 11:08 am
Mark, from the Washington Post article, here’s an example of the contradictions I was talking about:

“The FISA ‘probable cause’ standard is essentially the same as the ‘reasonable basis’ standard used in the terrorist surveillance program,” said spokeswoman Tasia Scolinos, using the term for the NSA program the White House has adopted. “The ‘reasonable suspicion’ standard, which is lower than both of these, is not used in either program.”

And then, later…

During separate appearances this week, Gonzales and Gen. Michael V. Hayden, the deputy intelligence chief, also said the legal requirements under FISA made it difficult for intelligence agents to act quickly enough in many cases.

Under the NSA program, Hayden said, “the trigger is quicker and a bit softer than it is for a FISA warrant.”

These clearly cannot both be true.
48 Mark Says:
January 26th, 2006 at 11:12 am
Fargus, agreed…I don’t think the statement by Tasia Scolinos is correct - make of that what you will…RobertP, it is precisely because FISA doesn’t cover situations where one end of the communication is in this country that the President authorized the NSA to begin the ‘program’…or did I miss your point?

Also, Fargus, I’m going to have to let your 4th Amendment point slide…I’ve been following the ‘legality’ argument pretty closely, but the ‘constitutionality’ part I’ve sadly neglected…unless someone else wants to take it and run with it…
49 Fargus Says:
January 26th, 2006 at 11:16 am
Hey, it’s cool. As I read the Fourth Amendment, it doesn’t explicitly require warrants for all searches, it’s true, but it seems that if they had meant for some other standard than warrants backed by probable cause to be necessary for a search to be reasonable (outside of the obvious exceptions noted by Gonzales), the Framers wouldn’t have mentioned warrants and probable cause in the amendment at all.
50 Mark Says:
January 26th, 2006 at 11:19 am
Hey, I’ll be the first to admit some of this reasoning is a bit circular…part of that may be that it’s so much goobledy-gook, or it may be that I’m not understanding all of the nuances as an untrained layman - or it may be a bit of both…
51 RobertP Says:
January 26th, 2006 at 11:32 am
Mark,
I guess not. I was under the impression that you thought what he was doing was legal based on FISA - which covers spying. If you agree that is illegal, then we are on the same page. Also, since the President asked for increased power to wiretap inside the U.S., under the resolution authorizing force in Afghanistan, but was turned down, we can safely assume that his actions are illegal in that regard. So, all in all, it looks like we agree. FISA does not permit domestic wiretapping; Congress held back on allowing domestic wiretapping under the Afghanistan resolution; therefore, if the NSA is spying on Americans they are breaking the law.
BTW, it appears that FISA requires very little information, but I would appreciate your take
52 Mark Says:
January 26th, 2006 at 11:44 am
RobertP, before I read your link, a quick point - I don’t know whether it was legal or not, and that’s why I welcome the ACLU lawsuit. I do know that the Administration has put most of their eggs, it seems, in the AUMF basket, and that, as tortured as this logic may sound, the fact that Congress did not realize they authorized the program doesn’t mean they didn’t…laws are tricky that way. I’m reminded of Robert Moses, as told in the Power Broker, one of the great books I’ve ever read, who was a master at exploiting perhaps unintended legislative openings…
53 Mark Says:
January 26th, 2006 at 12:02 pm
RobertP, the Kos article makes the assumption, it appears to me, that we are talking about the data-mining program with its repeated references to fishing expeditions. We know now that Bush’s program was a limited, targeted effort, probably in the realm of conventional wiretaps, with known or suspected al Qaeda folks on one end, and U.S. folks on the other (thus not a FISA thing). Now, the data-mining program appears to have been authorized by Michael Hayden at the NSA to parse down what was an overwhelming amount of data being furnished to the FBI post-9/11…two different programs…
54 Owen Says:
January 26th, 2006 at 12:28 pm
I just spent about forty-five minutes reading through all of this, and I want to second the positive responses that were sprinkled throughout it. I’d love to have a great comment here, but there’s so much to process. I’m just really impressed with the debate you guys have put together and I wish that other sites worked like this more often. Kudos!
55 Mark Says:
January 26th, 2006 at 12:32 pm
Thanks, Owen, and all the other folks who have had kind words to say…I’m a partisan Republican, and I don’t hide it…but we try to lift to debate here above the level of ‘did the see the latest crazy thing those nutcase liberals did?’…not always successfully, but we try…and some of my best regular commenters come from the left, as well…
56 Dan Lewis Says:
January 26th, 2006 at 1:34 pm
“Mr. Greenwald and others can and will make persuasive cases that the belief is mistaken, but this seeming contradiction regarding the Dewine legislation is only a contradiction if you buy the notion that the communications in question were authorized by FISA and not by presidential authority.”

Interesting, let me give you another one: this seeming contradiction regarding the McCain amendment is only a contradiction if you buy the notion that the torture in question falls under the Fifth, Eighth, and Fourteenth Amendments to the Constitution and not under presidential authority.

So this whole debate is closely related to the Presidential signing statement issue. To wit: “‘If you take this to its logical conclusion, because during war the commander in chief has an obligation to protect us, any statute on the books could be summarily waived,’ said Sen. Lindsey Graham, R-S.C.”

Your argument, Mark, seems to mean that Congress can legislate all it wants, including on the domestic surveillance of Americans, and the President can do whatever he wants without meaningful oversight. You seem to think that questions of legality can be resolved by an ACLU lawsuit taken to the Supreme Court, that the separation of powers will be maintained there. But there would be no lawsuit if the New York Times hadn’t broken the story; wouldn’t the ACLU have filed this lawsuit years ago if it had known?

This seems to me like a blank check to the President to do what he wants to fight the war on terror, as long as no one finds out about it, then to hide behind the fig leaf of war powers to fight an undeclared war if he is discovered. Why do we need a lawsuit to condemn this specious legal reasoning?
57 Dan Lewis Says:
January 26th, 2006 at 1:40 pm
And this is almost too much, from that Presidential signing statement article:

“In 2003, lawmakers tried to get a handle on Bush’s use of signing statements by passing a Justice Department spending bill that required the department to inform Congress whenever the administration decided to ignore a legislative provision on constitutional grounds.

Bush signed the bill, but issued a statement asserting his right to ignore the notification requirement.”

Get it?
58 Mark Says:
January 26th, 2006 at 1:44 pm
Not a blank check, Dan…we’re talking Signals Intelligence here, a well-established complement to battlefield operations…and further, we’re told (I know, the obvious retort is we’re being lied to, but the best we have to go on is what we know) that the communications in question have a known or suspected al Qaeda suspect on one end of the line…

Now, we’ve got upcoming Congressional hearings, which can go into secret session if need be to discuss details, we’ve got a lawsuit, we’ve got news outlets, we’ve got partisans like you and me…how many of these things would be true if we were really living under some autocratic police state? I’ll tell you what happens if you criticize Vladimar Putin too persistently - you get thrown in jail, even if you’re one of the biggest businessmen in Russia.

That sort of thing isn’t happening here…so let’s not go overboard here. Is this an important issue? Of course…but let’s remember the purpose and the targets…and yes, by all means, let’s let the legal system function as it is supposed to - by weighing, as impartially as is possible, two conflicting interpretations of this issue…
59 Christine Says:
January 26th, 2006 at 2:02 pm
I understand the argument that so and so did it in this war or that, but the FISA was passed AFTER those wars. Why would the AG bring that up? And I would also like to know who the AG is supposed to represent. I thought he was the one who is supposed to investigate the administration if there was any wrong doing. He seems to be acting as their private attorney. Where the hell are the people who are supposed to represent us?
60 Mark Says:
January 26th, 2006 at 2:21 pm
Christine, from the Department of Justice website:

The Attorney General is responsible for the overall supervision and direction of the administration and operation of the Department. The Attorney General represents the United States in legal matters generally and furnishes advice and opinions on legal matters to the President, the Cabinet, heads of the executive departments, and other agencies of the Federal Government. Records maintained include those relating to the administration of the office.

You may disagree with him (clearly you do), but the man is only doing his job…
61 peter Says:
January 26th, 2006 at 2:55 pm
It’s a pity that Gonzales doesn’t meet the same standards as Eliot Richardson, who resigned his post as AG rather than support Nixon is his illegal use of wiretaps and surveillance…
62 Mark Says:
January 26th, 2006 at 3:35 pm
peter, how so? Gonzales is arguing that the program is legal, and that is the advice he gave Bush…it would certainly be odd to opine that something is completely legal, and then resign for that reason…
63 Dan Lewis Says:
January 26th, 2006 at 3:42 pm
“the communications in question have a known or suspected al Qaeda suspect on one end of the line”

Al-Qaeda on the line? That’s probable cause, right? Sounds like it should be easy to get a FISA warrant. So again, why not use FISA?

“we’re talking Signals Intelligence here, a well-established complement to battlefield operations”

It is quite scary to imply that America is a battlefield in any but a weak metaphorical sense. War is peace, right? I am unaware of battlefield operations underway in America, so perhaps you could provide a reference. I understand Jose Padilla recently changed custody so the Administration wouldn’t have to make this argument in front of the Supreme Court.

“Now, we’ve got upcoming Congressional hearings, which can go into secret session if need be to discuss details, we’ve got a lawsuit, we’ve got news outlets, we’ve got partisans like you and me…how many of these things would be true if we were really living under some autocratic police state? I’ll tell you what happens if you criticize Vladimar Putin too persistently - you get thrown in jail, even if you’re one of the biggest businessmen in Russia.”

The distance between what Putin did and what Bush can do is smaller than you think. Imagine what would happen if X-Democrat-Billionaire was declared an enemy combatant. That’s right, he’d go to Guantanamo like the rest of them.

Like Sen. Graham, R-S.C., said, can’t you just waive any statute on the books? You could kill a Muslim prisoner with a hammer or expose yourself during the State of the Union address. To distract and discourage our terrorist enemies, of course.

That last little rider, that “of course”, is what we are arguing about, right? At some point, we have to say that the President’s authority is not as expansive as he makes it out to be. I use the extreme examples not to be offensive, but to point out that under your theory of Presidential power (and, I’m convinced, George W. Bush’s), if Bush says it’s for the War on Terror, then it is.

And let me add that “well, sure, it’s bad, but at least it’s not a police state… yet” is not a terribly persuasive argument.

What is the Congress? What is the legislative power? What is the Constitution? The way I see it, your dueling interpretation is deeply linked to “Bush giveth and Bush taketh away.” So what gives? Can the President torture prisoners in defiance of a quite explicit law passed by Congress?
64 Mark Says:
January 26th, 2006 at 3:54 pm
Dan, I refer you to my newest post on why not FISA? - it’s the wrong question. The question is, why not address the authorities the president has claimed, rather than those that he says with his own mouth he is not relying on?

As to American as a battlefield, well, surely you remember that day when war came to our shores? It would be difficult to forget…

(Btw, Bush explicity, umambigiously said torture is not and will not be permitted in his press conference today)…

Read on, if you please…
65 peter Says:
January 26th, 2006 at 5:20 pm
Mark: Eliot Richardson thought independently, decided that he was being asked to do something unconstitutional, and he resigned rather than do it. Perhaps I don’t give Gonzales enough credit – maybe he really thinks that what Bush did is OK – but my suspicion is that he is a lawyer being a hired gun for his clien, rather than a principled Attorney General who swore to preserve and protect the Constitution. Apparently, even John Ashcroft has problems with the NSA program – that should tell you something.

For what it’s worth, I spoke with our General Counsel today, who studied national security law at Yale (and is a rock-ribbed Republican). He thinks the NSA program is “deeply troubling” and thinks that Bush’s expansive definition of executive powers is well beyond any reasonable interpretation of the Constitution.
66 Christine Says:
January 27th, 2006 at 9:34 am
Thanks Mark. I had it wrong. I must of been thinking of another position. Great blog! Keep up the good work.
67 Mark Says:
January 27th, 2006 at 9:49 am
Hey, thanks for coming by…it was fun to see so many new faces…hope you’ll grace us with your presence more often…
68 Decision ‘08 » Blog Archive » The New York Times Continues To Channel Mother Jones Says:
January 29th, 2006 at 12:34 pm
[…] In a typically classless move, the Times appropriates the ‘Greenwald Dewine Postulate’ without proper credit, as well: In 2002, a Republican senator — Mike DeWine of Ohio — introduced a bill that would have …[lowered] the standard for issuing a warrant from probable cause to “reasonable suspicion” for a “non-United States person.” But the Justice Department opposed it, saying the change raised “both significant legal and practical issues” and may have been unconstitutional. Now, the president and Attorney General Alberto Gonzales are telling Americans that reasonable suspicion is a perfectly fine standard for spying on Americans as well as non-Americans — and they are the sole judges of what is reasonable. […]