Decision ‘08

Review of the Specter NSA Surveillance Hearing, Part One

Thanks to ____ (you know who you are) for providing me with the transcript to Arlen Specter’s FISA Hearing on Tuesday. Here are some random highlights and observations.

Specter opened up with admirable frankness, making his position crystal clear:

There is a contention by the administration that the Foreign Intelligence Surveillance Act was amended by the resolution authorizing the use of force on September 14th, 2001.

After extensive hearings, it is widely viewed that the Foreign Intelligence Surveillance Act has been violated — that is my view — because the act provides that the exclusive remedy for electronic surveillance in the United States must be preceded by a warrant of authorization by the FISA Court or with an exception 72 hours afterward on an emergency situation.

There is a second issue as to whether the president has inherent authority as commander in chief, war powers, to conduct the electronic surveillance. That, as I see it, would require knowing what the program is.

It may well be that the program is within the president’s inherent authority, but it seems to me that that determination has to be made, in accordance with the tradition in America, by a court, by a judicial review.

Our hearing today will take up the legislation which I have introduced, which essentially provides that the administration will have to submit the program to the Foreign Intelligence Surveillance Court, and the court will make a determination on constitutionality.

The president says he is unwilling to share the information with the Intelligence Committees, as mandated by the National Security Act of 1947, because Congress leaks. That certainly is true. But so does the White House.

But the FISA Court has an unblemished record of integrity and ability to maintain a secret. And they have the expertise to do the job.

…There has been legislation introduced by Senator DeWine which provides that the administration may conduct electronic surveillance without restraint for 45 days, and then at the end of 45 days, if there is sufficient evidence to go to the FISA Court, they go there. But if there is not, then they go to the subcommittee of the Intelligence Committee.

In my view, the subcommittee of the Intelligence Committee is no substitute for judicial review.

Patrick Leahy then made a statement blasting the Administration’s secrecy on matters in general and the NSA surveillance program specifically. The following excerpt will give you a taste:

More than three months and two committee hearings after the president was forced to acknowledge the program’s existence, this committee remains in the dark with regard to nearly every aspect of the program. As Senator Specter has succinctly put it recently, we’re still flying blind on a great deal of this.

At our first hearing, on February 2nd, with Attorney General Gonzales, his testimony was more obstructionist than enlightening. He flatly refused to discuss anything beyond those facts the president has publicly confirmed and nothing more. In other words, he wouldn’t tell us anything more than what we just read in the papers. And the stonewalling’s gotten worse since then.

Three weeks later, the attorney general wrote an extraordinary letter to Chairman Specter seeking to alter his live televised testimony, meaning by making it even less responsive.

That letter raised serious additional concerns about the scope of the administration’s domestic spying activities, the shifting legal rationalizations and, of course, the attorney general’s own credibility.

His letter admits that the department’s legal analysis has evolved over time. In other words, they had one reason when they started; changed the reason when it became public. And, again, refused to answer the basic factual question of when the administration came up with its theory that the congressional resolution authorizing military force against Al Qaida and the attempt to reach Osama bin Laden — the failed attempt to reach him in Afghanistan — authorized warrantless domestic wiretapping of Americans.

I can only infer that they are theories concocted long after they decided to ignore the law.

In my 32 years in the Senate, I’ve never seen anything like this, ever.

Specter read the following excerpt of a letter from Judge James Robertson (the judge who quit the FISA court, some say in protest over the president’s surveillance):

Thank you for soliciting my views on your proposal, which I support, to give approval authority over the administration’s electronic surveillance program to the Foreign Intelligence Surveillance Court.

Seeking judicial approval for government activities that implicate constitutional guarantees is, of course, the American way. But prudence in the handling of sensitive, classified material suggests that only a limited number of judges should have the job.

The Foreign Intelligence Surveillance Court is best situated to review the surveillance program. The judges are independent, appropriately cleared, experienced in intelligence matters and have a perfect security record,

Judge Allan Kornblum was the first witness. This statement of his is crucial in discussing the hearing:

…[W]e will not be testifying today with regard to the present program implemented by President Bush. The main reason we’re not going to discuss that program is because we’ve never been briefed on it, we don’t know what it involves and we’re not in a position to comment intelligently about it.

So Anonymous Liberal, who commented here yesterday, is correct in saying that the judges did not say the President’s program is legal; instead, they made a point of distancing themselves from that issue, for the primary reason that they have not been briefed on the President’s program. Kornblum then states the collective message of the judges:

We believe that the Fourth Amendment permits the Congress to empower the president to seek judicial warrants targeting networks of communications of terrorists abroad, used by persons who are engaged in international terrorism or activities in preparation therefore — which is the FISA standard — without having specific probable cause for all of those in the terrorist network, including incidental collection of U.S. person communication, balanced by stringent minimization procedures enforced by the FISA Court.

I think the following quotation from Kornblum is extremely relevant to the President’s program. It’s often overlooked that the purpose of the program is not to gather information for arrest warrants, but rather to produce intelligence:

…[T]he Fourth Amendment bars unreasonable searches and seizures, and the term “unreasonable” is the overarching concept.

The substantive requirements of the Fourth Amendment are for probable cause and particularity. The standard of reasonableness applies to both substantive provisions. That is, what is probable cause and what is sufficient particularity are subject to the standard of reasonableness which the Supreme Court has indicated is subject to different standards; that is, the standards under the Fourth Amendment for criminal warrants, for arrest warrants may be different from those necessary for foreign intelligence collection, for counterintelligence investigations.

…under Rule 41 of the Federal Rules of Criminal Procedure, if you want an arrest warrant, you must convince a judge there’s probable cause to believe that somebody has committed a crime. And then you must particularly describe that person.

If you want a search warrant, you need probable cause to believe that the place to be searched contains the contraband or illegal substances and you must describe that place with particularity.

Under the FISA statute, you need probable cause to believe that someone is a foreign power or an agent of a foreign power. You must also describe with some particularity what you want to seize. And in the case of FISA, what you want to seize is foreign intelligence information.

One of the critical factors of this is that the information, which is often foreign intelligence, can often be considered criminal evidence. That has always been a complicating factor in the operation of the FISA statute.

I think that for the purpose of Senator Specter’s bill, the critical factor here is that in targeting terrorist communications networks abroad and applying the standard of reasonableness, you have to look at the fact that the terrorists are located outside the United States. They’re overseas in foreign lands, using foreign languages and modern modes of communications to carry out their terrorism.

Thus, it would be unreasonable to expect U.S. intelligence agencies to know in advance the identity or identities of all of the people in these intelligence networks, where they’re located, what their telephone numbers are, what their e-mail addresses are.

Indeed, this is the very purpose of the FISA surveillances, is to identify these people and neutralize their terrorist activities.

As I mentioned, U.S. persons may be in the network or chain of communications of known terrorists, but there will undoubtedly be many other people in the communications network who are unknown to the intelligence agencies. Some of them may include U.S. persons.

Thus, it is perfectly logical and reasonable to expect that, although the program is targeted against terrorist networks abroad, that communications may come to the United States and are of great intelligence interest.

The next bit is especially important. Many critics of the President’s program have scoffed at the suggestion that the 72-hour FISA requirement is not difficult to comply with. It’s worth noting that Kornblum does not agree (that is to say, he finds the requirement onerous and unworkable in surveilling terrorist activity):

…[A]s phone communications or e-mail are moving rapidly in international commerce, the intelligence agencies need to follow those communications without coming back to the FISA Court to specifically identify each individual in the network the way the law enforcement officers do in the drug-trafficking networks.

And that’s where I ended up a few minutes ago. That is, the Fourth Amendment permits Congress to empower the president to seek judicial warrants targeting networks of communications ofterrorists abroad, without having specific probable cause for all of those in the network, including the incidental collection of U.S.- person communications.

And the critical factor here is the reasonableness standard in the Fourth Amendment. The Fourth Amendment is not a suicide pact; it is intended to be a check on government authority. And what is required is a reasonable application of that authority.

And so when you’re dealing with these communications networks worldwide — Saudi Arabia, Pakistan, Dubai and all the countries in Southeast Asia — we cannot — that is, U.S. intelligence cannot know who all these people are and come to court — and each time someone is identified in the network, to rush back in the next morning and come to court.

Kornblum then speaks to presidential authority, and makes it clear that, while he believes the President has the authority to conduct warrantless surveillance, it is the judiciary that properly defines the limits:

Presidential authority to conduct wireless surveillance in the United States I believe exists, but it is not the president’s job to determine what that authority is. It is the job of the judiciary. Just as the judiciary determines the extent of Congress’ authority to legislate, so it determines the executive’s authority to carry out his executive responsibilities.

The president’s intelligence authorities come from three brief elements in Article II. The executive power is vested exclusively in the president. So is much of the responsibility as commander in chief, as well as his responsibility to conduct foreign affairs. All three are the underpinnings for the president’s intelligence authorities.

Most of the authority I see referred to in the press calls it inherent authority. I’m very wary of inherent authority. It sounds like King George. It sounds like the kind of authority that comes to a head of a nation through international law.

As you know, in Article I, Section 8, Congress has enumerated powers, as well as the power to legislate all enactments necessary and proper to their specific authorities. And I believe that’s what the president has: similar authority to take executive action necessary and proper to carry out his enumerated responsibilities, of which today we’re only talking about surveillance of Americans.

…The presidential authority that is being used today is being used unilaterally. I think all of the judges agree with me that when the president operates unilaterally, his power is at its lowest ebb, as has been mentioned in judicial decisions.

But when Congress passes a law, such as one authorizing the surveillance program targeting communications networks — when the Congress does that and the judiciary has a role in overseeing it, well then the executive branch’s authority is at its maximum.

What that means is they can do things, I believe, under an amended FISA statute that they cannot do now.

For example, the president’s program says that the president reviews it every 45 days. But I would think, if Congress authorizedthe program and the court oversaw it, that the surveillance programs could run for 90 days.

Feingold then made an irrelevant partisan jab at the President before…going to meet with the President.

To conclude this first part, clearly the purpose of the judges in appearing before the Committee was to bolster the idea that FISA is the best regime to provide oversight to the President’s program. Kornblum did not say the President’s program was illegal, regardless of Feingold’s assertion, nor did he say it was legal. He did seem to find constitutional backing for the idea that the President was acting under his proper authority, but weaseled a bit by saying his unilateral action was at its lowest ebb, and his position would be strengthened by giving Congress and the judiciary a well-defined oversight role.

In Part Two, I’ll briefly summarize the testimony of the other judges…

2 Responses to “Review of the Specter NSA Surveillance Hearing, Part One”

1 Anonymous Liberal Says:
March 31st, 2006 at 12:31 pm
A good post. Fair and balanced (and not in the Fox News sense of the phrase). I do think that you somewhat overstate Kornblum’s assertion about the president’s authority. It’s undisputed that the president has inherent authority to conduct foreign intelligence surveillance. FISA only purports to set the rules for a limited subset of such intelligence gathering, i.e., the part of it that involves U.S. persons on U.S. soil. For the rest of the intelligence gathering process, the president relies on his inherent authority alone, because Congress has never chosen to legislate in that area. When Kornblum is talking about the president retaining his inherent authority and all presidents post-FISA using their inherent authority, this is what he’s talking about.

I don’t think Kornblum was meaning to suggest that the NSA program has firm constitutional backing. Quite the opposite, actually. He said that the president is currently acting unilaterally and therefore his powers are at their “lowest ebb.” In Article II jurisprudence (Youngstown and progeny) “lowest ebb” means highly likely to be found deficient. President Truman’s actions were found to be at the “lowest ebb” and unconstitutional in Youngstown, and in that case Congress had not even passed a law expressly forbidding what Truman did. Rather, Congress had simply considered the matter and refused to act. In this case, Bush is doing exactly what FISA forbids. So Bush’s powers are at an even lower “lowest ebb” if such a thing is possible.

Long story short, I think implicit in the testimony of all these judges is the notion that the status quo is unaccepable and that Congressional authorization is necessary and desirable.
2 Decision ‘08 » Blog Archive » Review of the Specter NSA Surveillance Hearing, Part Two Says:
March 31st, 2006 at 3:02 pm
[…] At present, as we have all heard here this morning, this whole area is one where there is considerable controversy and disagreement.It is not my purpose, nor do I think it appropriate, for me to allude to the politics of the subject.Recall from part one that Judge Kornblum said probable cause in the context of FISA meant probable cause that someone is an agent of a foreign power, and that squares with Keenan’s statement here. Yet Baker, above, pointed to reasonable suspicion, and explicitly said probable cause was not the right standard. If these judges who have, after all, all served on the FISA court can’t agree on this basic a point, how can FISA as currently constituted be workable? […]