Patterico's Pontifications

12/20/2005

Those Constitutional Experts at the Los Angeles Times

Filed under: Civil Liberties,Constitutional Law,Dog Trainer — Patterico @ 6:33 am



The editors of the L.A. Times continue to simply assume without analysis that President Bush’s surveillance program was unconstitutional. The most thorough analysis I have seen of the program’s legality was done by Orin Kerr, in a post I linked yesterday. Kerr concluded — very tentatively — that the program is probably constitutional, but probably violates FISA. Isn’t that bad enough? Not for the L.A. Times editors, who insist in this morning’s editorial that the program violates the Constitution:

ONE OF THE PERKS OF being commander in chief is that you get to edit the Constitution, even the Bill of Rights, from time to time. That is in essence the legal justification offered by the Bush administration for its authorization of a secret program to wiretap, without any court order, international communications of individuals within the United States suspected of ties to terrorist groups.

Let’s face it: the editors haven’t done a constitutional analysis of the surveillance program. That’s okay; I can read minds, and I could tell what they were thinking when they wrote that passage: It just doesn’t have the same snap to say Bush violated a statute, so let’s say he violated the Constitution. Besides, it really sounds unconstitutional, doesn’t it?

More on the constitutionality of the program in the extended entry.

The editors write:

“The fact that we’re discussing this program is helping the enemy,” Bush testily said at his Monday news conference. He then made much of the fact that the monitoring program, which bypasses the Foreign Intelligence Surveillance Act’s requirement that investigators seek secret court warrants in national security cases, only applies to international communications, where one caller or e-mail correspondent is out of the country.

“So in other words,” Bush explained, “this is not a — if you’re calling from Houston to L.A., that call is not monitored. And if there was ever any need to monitor, there would be a process to do that.”

This distinction between international and domestic calls is perplexing. Americans in their own country do not waive their 4th Amendment right to privacy when they dial 011.

Kerr seems less perplexed by the distinction than the editors. He says:

As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad. I’m not aware of any cases applying the border search exception to raw data, as compared to the search of a physical device that stores data, so this is untested ground. At the same time, I don’t know of a rationale in the caselaw for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the “functional equivalent of the border,” much like airports are the functional equivalent of the border in the case of international airline travel. [UPDATE: A number of people have contacted me or left comments expressing skepticism about this argument. In response, let me point out the most persuasive case on point: United States v. Ramsey, holding that the border search exception applies to all international postal mail, permitting all international postal mail to be searched. Again, this isn’t a slam dunk, but I think a plausible argument — and with dicta that seems to say that mode of transportation is not relevant.]

Interestingly, Kerr is skeptical of the claim that the Authorization to Use Military Force authorizes the surveillance program — yet the L.A. Times today prints a news article that says (deep down in the article, of course) that many legal experts have bought into that claim:

Bush and Gonzales also said Congress had authorized such extraordinary measures in the wake of the Sept. 11 attacks. The “Authorization for Use of Military Force” adopted by Congress said the president could “use all necessary and appropriate force” to capture those who planned the attacks and “to prevent any future acts of international terrorism against the United States.” Several legal experts said this was a stronger justification for Bush’s action.

“I think the authorization of use of military force is probably adequate as an authorization for surveillance,” said Cass Sunstein, a University of Chicago law professor.

If Cass Sunstein says it, it must be true!

54 Responses to “Those Constitutional Experts at the Los Angeles Times”

  1. Bush is unconstitutional.

    Angry Clam (fa7fff)

  2. Y’know, it’s hard to see how we’d have won WWII if the MSM of the time held FDR to the same standard. While my area of Constitutional expertise deals with street-level search and seizure by police, the argument that these NSA intercepts are analagous to border searches seems mighty persuasive to me.

    However, I think ultimately part of the blame must be laid at the feet of the Commander in Chief, for his failure to use the bully pulpit to convince us that we really are in a battle for civilizational survival. There was a conscious choice made after 9-11, to tell Americans that we needn’t change the way we live, hell, we musn’t change, else the terrorists win.

    Doesn’t that pretty much guarantee that with the passage of time, Americans lost the sense of urgency we all knew in the days after the Towers fell, killing more Americans than had died at Pearl Harbor?

    As Vietnam — and WWII proved — victory abroad depends on a broadbase of support at home. I’m disappointed we haven’t had the 21st-Century equivalent of Victory Bond Tours by war heroes, and done more to emphasize that we need to makes some sacrifices at home while our troops are fighting abroad.

    Mike (e9d57e)

  3. What’s going on:

    Is it true? Someone is trying to catch terrorists by using wiretaps, a US government agency no less. That’s just got to be illegal or unconstitutional!

    Call out the ACLU. Demand Affirmative Action and free abortions for Al Qaeda. Put them on welfare and start handing out food stamps. Get them a lobby in DC, and sign them up for MotorVoter. There’s no time to waste.

    Quick, get a football stadium ready so they can get citizenship papers in time to vote Democrat in 2006. And, don’t forget to bash GWB for …well, whatever.

    Black Jack (ee9fe2)

  4. ONE OF THE PERKS OF being commander in chief is that you get to edit the Constitution, even the Bill of Rights, from time to time.

    That’s just hilarious. Where did these guys learn Civics? Everyone knows that editing the Constitution and Bill of Rights is a perk of the judiciary.

    Attila (Pillage Idiot) (dfa1f1)

  5. I’m pretty sure it violates the Chainsaw Amendment.

    Xrlq (5ffe06)

  6. Speaking of mind-readers, check out Jonathon Alter’s anti-Bush screed in Newsweek. If I were a Newsweek editor, I’d be embarrassed.

    Kevin Murphy (6a7945)

  7. King Snoopy’s comparison to Tricky-Dick:

    Remember that, in the impeachment of Richard Nixon, Article 2 of the three Articles of Impeachment dealt with illegal wiretapping of Americans. It said that Nixon committed a crime “by directing or authorizing [intelligence] agencies or personnel to conduct or continue electronic surveillance or other investigations for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office.”

    [from http://www.alternet.org/story/29826/%5D

    I imagine that Nixon tried to say that it was a matter of national security too.

    Tillman (1cf529)

  8. From TPMCafe:

    This is not complicated law. Two days before the Watergate break-in in 1972, the Supreme Court ruled 8-0 in the Keith case that, “The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch without the detached judgment of a neutral magistrate.” The Nixon administration argument rejected in Keith was quite similar to the Bush argument: that a threat to national security existed (in this case, posed by the White Panther party, whose leader found a more effective means of subversion later by becoming the manager of the Detroit proto-punk band MC5) and vague language in a crime control statute (since superseded by FISA) gave the President the authority to conduct warrantless surveillance. (Justice Rehnquist did not participate in the case because he had been part of the Nixon team crafting the rejected argument.) Keith does not deal with foreign threats, but the fact that a foreign threat may require domestic surveillance is exactly why FISA was enacted.

    Tillman (1cf529)

  9. The distinction was that those were wholly domestic wiretaps, whereas the communications at issue here cross the national border.

    You have, with very limited exceptions (mostly involving unduly destructive searches), no Fourth Amendment rights at the border.

    Angry Clam (fa7fff)

  10. The most ardent haters of the President’s policies in the Legislature KNEW that this was happening.

    And for those who are complaining the loudest … what do they think is so interesting in their lives that they are concerned about their conversations. Likely nothing. But if they are speaking with foreigners about terrorist activities or supportive activities against the U.S. interests, then I hope someone’s listening.

    MOG (34884a)

  11. […] UPDATE: University of Chicago Law Professor Cass Sunstein says: “I think the authorization of use of military force is probably adequate as an authorization for surveillance.” Hat Tip: Patterico. 46 responses to ‘Does the NSA Bug You?’. RSS feed for comments and Trackback URI for ‘Does the NSA Bug You?’. […]

    Confirm Them » Does the NSA Bug You? (5c7b11)

  12. Clinton claimed a similar power before and after FISA was adopted — that is, power to do pretty much what Bush has done — and Clinton took the position that the power was founded in the constitution and wasn’t limited by FISA.

    The power undoubtedly exists, although its limits aren’t clearly defined. The political process is the most appropriate means of dealing with any supposed abuse of this power. You can be sure that there were Democrats in the Senate and maybe some in the House who knew about the surveillance program and who probably knew quite a few, if not all, of the important details. But until the leak, the program fell into the category of “Things the President Has to Be Able to Do Without the Public Knowing About Them”, and therefore those Democrats, being trustworthy enough to be on the short list, wouldn’t have gone public with the information.

    With that in mind, consider the subtance of what the media is hyperventilating over — Jonathan Alter (if I recall correctly), while arguing that the President has indeed violated the law, made an interesting point — of course would-be terrorists know that NSA and CIA are attempting to listen to their phone calls and read their email. That the government has these capabilities has been well-known for some time. So, the “leaked” info was that this was occurring outside the scope of FISA? BFD.

    There are a couple of possible explanations, other than the surveillance operation’s security has been compromised. This one’s more fun than all the rest combined: This is a Rovian plot. The leak, if you want to call it that, was intended, and it originated from Rove’s office. Like the Rovian plant of the “fake-but-accurate” TANG memos, the supposed program of intrusion into private communications was just bait — in reality the program was and is nothing more than the stuff the gov’t has been doing all along, under both Repub. and Dem. administrations. But the real story is that Rove is again giving the President’s opponents an enticement that they can’t pass up. So, immediately following the Defeaticrats predictions of disaster in Iraq, Iraq demonstrates for the third time in a year that it is indeed a functioning democracy (albeit a fledgling one), and the President reminds the ‘merkan people that this is what OIF was about all along. The coup de grace will follow the attempt to filibuster the extension of the Patriot Act, which of course would get absolutely nowhere without the surveillance story. A few Republican porpoises are going to get caught along with the Dem tuna, but they can’t say they weren’t warned. The Patriot Act extension, although derailed for long enough to stoke the public’s anger at the Democrats, will ultimately be adopted. The objective of this op will be achieved — the Dems’ bid to make gains in Congress will fall completely flat, as the public continues to regard them as untrustworthy on national security issues. Come on Karl, give us a bwahahahahahahah!

    I think Mike Myers should play Rove in the movie.

    TNugent (6128b4)

  13. Apparently, Sen. Jay Rockefeller was briefed on the electronic intercept program at least two and half years ago. He claimed to have raised an objection to Dick Cheney at the time, but did not take any steps to object to the program through the means available to him as Vice-Chair of the Senate Intelligence Committee. The Dems have known about this for at least a couple of years now. It’s desperation time, and although they think the “leak” is cover for them to go public, it’s really just bait, whether or not it was intended by Rove or anyone else in the administration. Opposing the Patriot Act extension is even more stupid than calling Iraq a quagmire on December 16, 2005. Bwahahahahaha! indeed.

    TNugent (6128b4)

  14. TNugent, you genius. But don’t you remember that this was “double super secret” and that you weren’t supposed to leak the details?

    I really love this VRWC stuff!

    Really, this is something the average guy on the street is going to slap his forehead and say: “Duh!” about. The American people understand that we have to go after these terrorists with every tool we have and they understand that “Joe Sixpack” is not the target, unless of course he is in league with Al Queda, in which case, “go get him.”

    The idea that we are somehow on some slippery slope into “the sky is falling – the country’s going fascist!” is just so much poppycock.

    Harry Arthur (40c0a6)

  15. Yes, by all means, Mike Myers should play “Doctor Evil”, I mean Karl Rove, in the movie.

    Harry Arthur (40c0a6)

  16. I don’t buy it TNugent. I suppose that Bush summoning “both the editor and the publisher of the New York Times to the Oval Office…in an effort to keep them from publishing their story about the NSA program” was just part of this brilliant plan too. Yeah right. (Quote from http://www.washingtonmonthly.com/archives/individual/2005_12/007811.php )

    Tillman (1cf529)

  17. […] Patterico has an interesting quote from the LA Times: ONE OF THE PERKS OF being commander in chief is that you get to edit the Constitution, even the Bill of Rights, from time to time. That is in essence the legal justification offered by the Bush administration for its authorization of a secret program to wiretap, without any court order, international communications of individuals within the United States suspected of ties to terrorist groups. […]

    The Unalienable Right » Democrats suddenly want to strictly adhere to the Constitution? Since when? (7a057a)

  18. I suspect Bush warned Sulzburger, Jr. and Keller that if they didn’t shape up and get with the program, they’d be sharing Judy Miller’s old jail cell.

    Justice Frankfurter (2dcd84)

  19. personnel to conduct or continue electronic surveillance or other investigations for purposes unrelated to national security

    perhaps Mr. Tillman can now explain how capturing information on al Qaeda and discovering hereto unknown people connected with al Qaeda and other terrorist groups is not a matter of national security.

    The faux cry from the BDS sufferers just after 9/11 was “why didn’t Bu$hitler connect the dots! CONSPIRACY!” now the cry from the same is “how dare Bu$hitler get dots we know are not there! CONSPIRACY!”

    meshugga

    Darleen (f20213)

  20. Serious question: The Democratic leadership of the House and Senate were informed of this program back in late 2001. If they believed it to be illegal, why didn’t they reveal it, at the very latest, in October of 2004? The New York Times has had this information for some time as well, though I don’t know if they had it before the election; if the Times’ editors believed it to be illegal, why did thay sit on it?

    Dana R. Pico (3e4784)

  21. Byron York had an outstanding article December 19 and another
    December 20, reporting critical aspects of the FISA controversy that you probably haven’t heard about.

    Andrew (08ba2c)

  22. So the public will hear, in essence, two things:

    1. AQ’s international ph calls were being tapped, using the same authorization that Clinton used for lesser purposes, as well as add’l authorization granted after 9-11.

    2. Dems, who knew about it beforehand, nonetheless claim the tapping might be technically illegal. They want it stopped, and they wanna impeach Bush.

    To the polls!

    ras (f9de13)

  23. Whatsamatter Tillman, not buying my conspiracy theory?

    Come on, think about it, we’re talking about the New York Times! For them, Bush’s request not to publish the story was an itch that had to be scratched eventually. That sort of Presidential attention was probably also Rove’s idea — how better to make the pressies think they really had something?! Sure, they held the story — but what were they supposed to do, ignore the presidential request when the justification given was national security? That might have blown up right in their faces. But they just knew they would be able to use this one sooner or later. They were going to publish at the earliest opportunity. The public disclosure of the info through other channels provided that opportunity. Just like the TANG memo story, once it became clear that someone else was going public, the Times was sure to publish ASAP. Their eagerness to damage the President kept them from realizing the obvious — that the timing of the leak that led to this story, like that of the discovery of the TANG memos, was just, well . . . what’s the word? . . . Rovian.

    You just know that Turdblossom had in his back pocket Jamie Gorelick’s defense of Clinton’s assertion of the same powers in 1994. He also knew that the Dems on the Senate Intelligence Committee were briefed long ago (that’s what W was referring to yesterday when he said they consulted with Congress repeatedly). The White House also had one other bit of info that seems to have escaped the Dems leading the filibuster charge — that the post 9/11 ‘merkan people by and large think that the electronic surveillance program was not only permitted, but a damn good idea, and something that the President had better be doing. Joe Sixpack (Harry Arthur, the royalty check is in the mail!) is able to connect the dots between electronic surveillance and no successful terrorist attacks on US soil since 9/11/01. The supposed controversy, far from being the impeachment opportunity that a few left wingnuts think it is, will be forgotten long before the Dems begin to repair their self-inflicted wounds.

    TNugent (6128b4)

  24. TNugent,

    It is just so hard to determine whether Rove was that smart, or the Left was that stupid.

    But why must it be either/or?

    ras (f9de13)

  25. I can confirm that, TNugent. Those dots are connected.

    Joe Sixpack (6128b4)

  26. Ironically, it’s much WORSE that he’s violating or flagrantly disregarding a statute than it is to suggest he’s violating the constitution. The latter can be attributed to honest disagreements about interpreting the constitution, whilst the former places the President and his apologists in the Royalist school of thought.

    A Royalist is about the worst name I can think of to call someone who’s supposed to uphold the Constitution.

    Geek, Esq. (dfadc0)

  27. Some of both, undoubtedly, but it’s not the “Left,” per se, this time, it’s the Dems. The advantage they’re looking for is partisan. It’s only coincidentally ideological. They want to gain seats in 2006 and they see damaging the President as their best opportunity for doing that. The problem for them is that the policies they’re attacking are ones that are just stupid to attack. The Iraqi Democracy Project is on the verge of stunning success, and whose popularity is a snowball starting its way downhill just as the election year is beginning. The program of electronic surveillance of suspected terrorists is something that most Americans not only approve of, but would demand. Unless Democrat is a proxy for “left,” you can’t say that all of the Dems who are standing with Chucky et al. are Left. Many of them aren’t even “liberal” in any sense of that word except the empty label sense. Certainly they can’t claim to be “liberal” in the sense of the word that means “favors the expansion of self-government on liberal democratic principles” — those types of liberals — traditional liberals — have always understood that liberalism can’t exist where government can’t provide security; therefore, traditional liberals are usually willing to allow a democratically elected (and therefore accountable) government some leeway in providing security from a demonstrated threat (for examples, see “Jackson” — either Robert H. or Scoop, take your pick). This attack on the President is motivated by purely partisan concerns, all the more shameful because they’re in disregard of or even opposition to the national interest.

    TNugent (6128b4)

  28. Hey, what’s all the fuss about electronic surveillance? Just sign up for The Do Not Wiretap List.

    TNugent (6128b4)

  29. TNugent,

    Agreed all around, excepting perhaps that, well yes, I do think that “Democrat” has become something of a synonym for “Left” of late, albeit Left & Right themselves are now largely empty terms, more often employed as banners than descriptors.

    Dems these days seem mostly motivated by a desire for a stable pecking order, and they viscerally hate anything that would threaten their status, such as meritocracy or competition (or those who promote same). The rest of their policy prefs seem to flow pretty consistently as a consequence.

    ras (f9de13)

  30. Geek – Violating a statute (that may well be unconstitutional) is worse than violating the Constitution? You’re not really a lawyer, are you?

    eddie haskell (51058c)

  31. All you lawyers,

    Does Congress even have the power to pass a statute that limits the President’s constitutional authority? Or is FISA itself unconstitutional?

    Also, if it were found that Bush did indeed violate a constitutional FISA by tapping AQ’s intl calls, what are the legal consequences? Any? Or is it entirely up to Congress to decide whether to praise or punish?

    ras (f9de13)

  32. The constitutional question is a good one, ras, although you probably know the answer. Justice Jackson’s concurring opinion in the Youngstown case (1952) provides a pretty good explanation of what is at stake, constitutionally speaking, when the act of the President and an act of Congress conflict (they might not in this case).

    TNugent (6128b4)

  33. All I can say is that it’s nice seeing that the L.A. Times now thinks that the government has to follow the constitution. They didn’t used to think that.

    Doc Rampage (47be8d)

  34. Violating a statute (that may well be unconstitutional) is worse than violating the Constitution? You’re not really a lawyer, are you?

    The major premise of the statutory violation–the theoretical underpinning–is that the President doesn’t have to obey the law, and that he can make his own law as he sees necessary.

    People who have this theory of executive power are free to move to Cuba, where Fidel Castro will agree with them.

    Geek, Esq. (b4db11)

  35. Well, I really didn’t expect you to respond substantively, geek, and I’m not disappointed. Where do people like you, who believe that the legislative branch is not subject to and does not have to obey the Constitution, move to?

    eddie haskell (effa4a)

  36. Here’s how our system works, Eddie.

    The Congress makes laws. The President obeys and enforces those laws.

    Both must obey the Constitution.

    Bush, and his apologists, believe that Bush doesn’t need to obey the laws enacted by Congress.

    Geek, Esq. (922c14)

  37. Does Congress even have the power to pass a statute that limits the President’s constitutional authority? Or is FISA itself unconstitutional?

    FISA is by no stretch of the imagination unconstitutional. Congress may restrict the manner in which the President exercises his authority.

    Bush was elected President, not Doge or King.

    Geek, Esq. (922c14)

  38. Geek – Your answer to the question regarding FISA’s constitutionality with the absolutist and erroneous statement “Congress may restrict the manner in which the President exercises his authority” says all that needs to be said about your lack of knowledge of the Constitution.

    eddie haskell (effa4a)

  39. All I see is ad hominem snottiness from you, Eddie.

    Your petulance bores me. Toodles.

    Geek, Esq. (922c14)

  40. My pointing out that your views are based on the erroneous notions that (1) statutes are superior to and control the Constitution and (2) Congress is the supreme branch of government and can limit the executive’s constitutional powers is not an ad hominem attack, although it probably is embarrassing for you. Ta-ta.

    eddie haskell (effa4a)

  41. “Congress may restrict the manner in which the President exercises his authority.”

    Woah, slow your roll there, homie.

    You might want to qualify that, because it is fairly clear that, constitutionally, Congress has nothing to say to the President about a whole host of Article II powers- it is quite unclear if Congress could limit the President’s power to remove officials, for example. Likewise, Congress gets no say other than “no money, punkass” in the operational functioning of the military. I strongly doubt Congress could pass a “guess what? the 10th Mountain has to advance and hold that bridgehead” law, for example.

    Angry Clam (a7c6b1)

  42. Geek, it’s just not true that the powers of the President that have their origins in the Constitution can be limited by statute. Congress can limit presidential powers by statute if those powers were delegated to the President to begin with or perhaps if the subject matter is among those in which both the president and the Congress have powers (but it’s not likely that the Court would attempt to resolve a political question such as the latter situation). Read the Youngstown Co. case I linked to above. Read Justice Jackson’s concurrence, in particular. Then you might understand Eddie’s criticism of your comment.

    TNugent (6128b4)

  43. Be careful what you wish for now, for tomorrow a Democrat will be President, and there will be great fear and trembling amongst you.

    Why do you hate democracy?

    Tillman (1cf529)

  44. If it is used in its proper bounds (international communications only; no admissibility in court), as, so far, it appears it has been, then I don’t care that a Democrat is doing it.

    Likewise, I have no problem with Echelon.

    Angry Clam (a7c6b1)

  45. According to Drum though Clam, “Some purely domestic communications turn out to have been trapped by the NSA’s surveillance.”
    http://www.washingtonmonthly.com/archives/individual/2005_12/007819.php

    Tillman (1cf529)

  46. And that’s a problem.

    Not much of a bother to me though because 1) I’m not a criminal and have nothing to hide and 2) the government’s got most info on me already, due to a number of background checks and clearances I’ve had to undergo.

    It isn’t a big deal, people.

    Angry Clam (a7c6b1)

  47. (‘Guess there’s an error in Kevin’s post, I suppose he meant to say tapped rather than “trapped.”) 🙂

    Tillman (1cf529)

  48. What’s to keep, say a Nixon, from using it for their own political advantage? “Yeah, let’s listen in on the DNC.”

    Tillman (1cf529)

  49. Possibly, although, if it is an echelon-like system, the dragnet analogy would be pretty appropriate.

    Angry Clam (a7c6b1)

  50. Or a Clinton (IRS files)?

    A combination of 1983 civil actions, government corruption statutes, impeachment, and the inadmissibility of evidence gained as a result of it in a criminal prosecution.

    That’s good enough for me.

    Angry Clam (a7c6b1)

  51. Well, so much for phone sex then. Big Brother kinda ruins that. 🙂

    Tillman (1cf529)

  52. Unless you’re an exhibitionist.

    Angry Clam (fa7fff)

  53. Or hey, better yet:

    “And this one goes out to all you NSA agents out there… we love company. Our number is (555) 123-4567. Call us and we’ll rock your world.”

    Angry Clam (fa7fff)

  54. LOL, I’ll never tell.

    ‘Guess I’d better quit my blathering and let someone else have the chance to bore your readers.

    Tillman (1cf529)


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