Patterico's Pontifications

7/7/2008

Revisiting the FISA Debate With A Hypothetical That Makes The Article II Case

Posted by WLS:

Having read Judge Walker’s opinion last week in which he determined that the federal common law “state’s secrets” privilege was abrogated by Congress with its passage of FISA, it occurred to me that there is a fairly simple hypothetical which can be used to explore the view that FISA is an unconstitutional encroachment on the Article II “Commander in Chief” powers of the US.

Lets assume that the Clinton Administration hadn’t been so feckless in its closing months, and that after the bombing of the USS Cole it had followed the advice of Richard Clarke, sought an authorization to use force against Bin Laden, AQ, and the Taliban, and initiated offensive military operations — of whatever type — in Afghanistan for the purpose of dislodging Bin Laden and AQ.  

Lets next assume that part of the offensive operations was an aggressive intelligence collection effort conducted by NSA and DOD which focused on communications between Bin Laden and other AQ actors in Afghanistan on the one hand, and the loose net of affiliate organizations around the world on the other hand.

Lets next assume that the Bush Administration kept the same policy following the election, and remained on the offensive against Bin Laden and AQ, short of an all out invasion of Afghanistan.   That during this effort the intelligence agencies were able to intermittently intercept cell phone transmissions believed to be from Bin Laden and other members of AQ’s leadership.  

We’re still talking about a pre-9/11 timeframe here, and from those interceptions intelligence analysts were convinced there was some type of plot underway inside the US, but the details were not yet known.  But in July 2001, interceptions established a contact between AQ in Afghanistan and Ramzi Binalshibh in Germany.  Binalshibh is identified by intelligence agencies as having been associated with a cell of Islamic radicals in Hamburg, one of whom is Mohammed Atta, who is found to be attending flight school in the US in the summer of 2001, with travel records from various intelligence agencies showing they had traveled to Afghanistan together in 1999.

So, based on this information, in July 2001, NSA and DOD begin intercepting all telephone communications of Binalshibh in Hamburg.  These interceptions are the direct result of battlefield intelligence obtained in Afghanistan, and the purpose is to seek to collect actionable intelligence which might be used by the military or civilian law enforcement to prevent an attack on US soil.

Under these circumstances, is the President’s Article II authority as Commander in Chief to be constrained by FISA if Binalshibh decides to call Atta in the United States?  Its not Atta’s phone that is being monitored — its Binalshibh’s phone in Hamburg.  Does the Executive, in the midst of exercising its war fighting authority, have to run to the FISC to obtain a warrant to continue listening to communications between Binalshibh and Atta? 

78 Responses to “Revisiting the FISA Debate With A Hypothetical That Makes The Article II Case”

  1. There was never a requirement to get a warrant to listen to ALL of Binalshibh’s phone calls as long as he remains overseas. He is a legitimate target for gathering foreign intelligence. The question becomes what to do with the contents of a conversation when he talks to somebody who is considered a U.S. person, Atta, in this case.

    I believe there are different answers to the question pre and post 9/11 and the shading you get will depend on whether you talk to a liberal or a conservative. I’ll hold my answer to see if I am proved right.

    daleyrocks (d9ec17)

  2. My answer is unquestionably that Article II prevails over any restrictions imposed by FISA. In this context FISA is clearly unconstitutional if it works to limit the Executive’s authority to prosecute a war.

    Article II has substantive meaning. The collection of intelligence directly connected to ongoing military operations is not something in which Congress can meddle.

    WLS (1cdbde)

  3. So, given all of that, how hard would it have been in July of 2001 to get a warrant out of the fisa court? Is the reason not to do so one of expediency or philosophy? My understanding is that the FISA court usually says yes.

    I say get the damn warrant, and hurry up with it already.

    (voting for McCain in case it matters.)

    joe (732315)

  4. There are enough bureaucratic hurdles in the government already. Why encounter another where its not required.

    How does a federal district judge improve the operation of the Executive as Commander in Chief. There is no “check” on the Article II authority of the Executive in the form of involvement by the judiciary.

    Why have spooks from NSA or DOD go to some judge for his signature? Its not needed and it makes no sense.

    WLS (1cdbde)

  5. I thought about this since WLS’s last post on the issue. The power of the purse. Congress can defund any surveillance program. But how subtle or crude does that defunding need be? Can it be as subtle as “Mr. President, don’t spend this money except as exactly as we tell you you can”? Like in FISA?

    nk (479e05)

  6. But Joe, here’s the problem — by the time they get that warrant, the call with Atta is over. Assuming that there are not regular calls between the two, we may just have missed the ONLY communication between the two — and the towers come falling down.

    And add the twist — all of Binalshibh’s satellite/cell phone calls are at some point routed through nodes in New York because of the server technology used to transmit the calls — warrant needed to intercept his calls?

    Rhymes With Right (462b62)

  7. The answer to your hypothetical is a slam-dunk “no.”
    .
    The next question is whether or not Article II power admits listening to communications between Atta and anybody he’s in contact with.
    .
    We don’t know the answer to that, because, without the contents of the call between Binalshibh and Atta, we don’t know whether it’s reasonable to have suspicion of Atta.
    .
    But we DO know that to monitor Atta under FISA, would require a warrant. If no warrant, then the surveillance of Atta, while it might be withing Article II powers, is not within the structure of FISA.

    cboldt (3d73dd)

  8. cboldt, I don’t think that this sentence made any sense: “If no warrant, then the surveillance of Atta, while it might be withing Article II powers, is not within the structure of FISA.”

    Perhaps a rewrite?

    SPQR (26be8b)

  9. Oh, I misspelled “within” — otherwise, the sentence describes an extension of the surveillance from one of all of Binalshibh’s communications, to one of all of Atta’s communications.
    .
    My phraseology is awkward, but it conveys that a surveillance of Atta without a warrant would be a violation of FISA.
    .
    A separate comment: the hypothetical includes the ever-present “in the midst of exercising its war fighting authority,” but this is an unnecessary limitation or condition for presidential acquisition of foreign intelligence information.
    .
    I believe the reason it comes up as often as it does is that the administration leans on it, like a crutch. That’s an artifact, I think, of the crappy argument that AUMF modifies FISA.

    cboldt (3d73dd)

  10. FISA is clearly unconstitutional if it works to limit the Executive’s authority to prosecute a war.
    .
    FISA is unconstitutional to the extent it limits the executive’s prerogative to obtain foreign intelligence information, period – wartime, peacetime makes no difference.
    .
    FISA is also unconstitutional to the extent it impinges on an individual’s Fourth Amendment “rights.”

    cboldt (3d73dd)

  11. Not to put words in comments for cboldt, but I think the argument is that Atta, because he is in the U.S., becomes a U.S. person under the provisions of FISA, so to adhere to its provisions and to listen to his incoming and outgoing phone calls would require a warrant to stay within the framework of FISA.

    Listening to Binalshibh’s calls requires no warrants and to the extent conversations with Atta are captured through that process they are legal. I believe the Gorelick wall discouraged the sharing of the contents of those calls even if they related to foreign intelligence prior to 9/11 with other intelligence agencies and certainly discouraged obtaining FISA warrants for U.S. persons purely on the basis of NSA derived information. cboldt may have a statute or a reason for why this was done. I think he referred to it in the prior thread.

    It seems silly to legally intercept a conversation between Binalshibh and Atta discussing a terrorist plot in the U.S. and not immediately be able to use the information to obtain a warrant to eavesdrop on all of Atta’s communications in the U.S. According to all of the accounts I have read, that is what was occuring due to resistance from the FISA Court. Again, maybe cboldt has a Fourth Amendment or other explanation.

    daleyrocks (d9ec17)

  12. Jesus Christ, is this ever a stupid question.

    Does the Executive, in the midst of exercising its war fighting authority, have to run to the FISC to obtain a warrant to continue listening to communications between Binalshibh and Atta?

    They can go ahead with wiretaps as long as they obtain a warrant from a court that approves more than 99.9% of all warrant requests within 72 hours.

    This post is some profoundly retarded shit. FISA is unconstitutional, yeah right. It was crafted and voted upon by a legislature, signed into law by the executive, and has passed judicial muster for three decades, including being upheld just this past week, but you’ve discovered that in reality, all these hundreds of congressmen and judges have been wrong all along! Because all it takes to be some wizened Constitutional scholar is the ability to conjure up hypotheticals.

    This is the kind of over-the-top ridiculous nonsense that stems from a conservative base that eagerly justifies everything their conservative President does, up to and including cut and dry, in-broad-daylight law-breaking. FISA is the law, period. You never had any problems with it, right up until your beloved leader got caught breaking it. That should be a clue.

    Levi (74ca1f)

  13. Why don’t you answer the question, boy genius?

    daleyrocks (d9ec17)

  14. Why don’t you answer the question, boy genius?

    You’ve gotta be shitting me…

    Levi (74ca1f)

  15. Answer the question???

    I haven’t found a lefty yet who could even marshall a coherent legal argument in favor of FISA’s constitutionality.

    “Congress passed it and the President signed it” isn’t a legal argument.

    By the way, that particular President was James Earl Carter.

    WLS (1cdbde)

  16. Since you’re still lurking, why don’t you read Judge Walker’s opinion again.

    One thing you will notice is that the constitutionality of FISA wasn’t before the court. The only issue presented was whether the gov’t could derail the suit by claiming the protections of the federal common law “State’s Secrets” privilege.

    Judge Walker ruled that Congress abrogated the privilege when it passed FISA.

    Whether FISA was passed in violation of Article II was not decided.

    And the government specifically asked the court to not conflate the two issues.

    WLS (1cdbde)

  17. Answer the question???

    All I did was answer the question. The one question you asked in that whole, retarded post was the only thing that I quoted.

    I haven’t found a lefty yet who could even marshall a coherent legal argument in favor of FISA’s constitutionality.

    “Congress passed it and the President signed it” isn’t a legal argument.

    Oh it’s not, is it? The business of making and enforcing laws is some extra-Constitutional practice, is that what you’re telling me?

    Levi (74ca1f)

  18. Whether FISA was passed in violation of Article II was not decided.

    You’re so full of shit. You never would have given a first thought to FISA unless your guy got caught breaking the law, now you’re scrambling to whatever nonsense there is within scrambling distance. ‘He broke the law? Well, um, gee, uh… THAT LAW IS UNCONSTITUTIONAL! That’s it! Jimmy Carter broke the law, yeah!’

    But again, this is how Republicans work. You’re all quiet on the torture front, until it comes out that Bush has been torturing people for years, now it’s part of the platform. You’re opposed to the idea of nation-building and reckless spending, right up until George Bush embroils us in an endless, expensive war, and so those things are put aside. Same with wiretaps, same with any ‘respect for the rule of law’ you guys used to pretend to care so much about.

    Levi (74ca1f)

  19. WLS # 4: “There is no “check” on the Article II authority of the Executive in the form of involvement by the judiciary.”

    It’s stuff like this that makes me sometimes wonder if I have entered an alternate universe or something.

    So there are no actual checks and balances between the three branches of government, something I have always thought was a cornerstone of the brilliance of the American system to preserve the liberty of its citizens. The Executive rules all. Yikes.

    The judiciary can’t check the executive even if the executive is behaving unconstitutionally, because “there is no check on the Article II authority of the Executive in the form of involvement by the judiciary”. Says WLS. Implicit in this statement is that it is the Executive who gets to define its own power. So, no check.

    And there is no check by the legislature either. Even though FISA clearly makes certain acts legal or illegal (wisely or not), the executive is free to ignore and break the rules passed by Congress (and which were not vetoed by the Executive so that they become law). Says WLS. Were the Congress to presume to pass a law that limited Executive power, the Executive is free to ignore it. Who is to say differently? Certainly not the judiciary, as WLS has established, there is no check on such Executive authority coming from that branch of government.

    Why? Because WLS reads this exclusive, unchecked Executive power into Article II, contrary to over two centuries of experience, political science, and practical application.

    But what if WLS and the executive power are overreaching their constitutional limits? We are talking about controversial infringements on the personal liberties of individuals and all. What if the executive goes too far? Can the other branches do anything?

    The judiciary can’t, as WLS has established, because “there is no check on the Article II authority of the Executive in the form of involvement by the judiciary”. (Even though the judiciary has been checking the authority of the executive on Constitutional issues for over 200 years now, see Marbury v. Madison if you don’t believe me.)

    And the broadly and democratically elected legislature charged with creating law can’t pass a law like FISA, considering, balancing, and defining the bounds and limits of acceptable governmental surveillance, because the Art. II Executive reigns supreme. It’s kind of quaint and precious that the Congress would presume to pass laws, but the Executive doesn’t have to follow those laws of course. According to WLS.

    So, if you think the Executive is overreaching and violating rights either protected by the constitution or by laws passed by Congress, there is not much you can do, according to WLS. “There is no check on the Article II authority of the Executive in the form of involvement by the judiciary,” so that check is gone. And if you are wondering if Congress can pass a law like FISA that limits Executive action, nope. You would think that laws governing when and where warrantless surveillance could be done would be a legislative function, but nope. (And should Congress and the Executive ever get in a conflict about it, forget the Judiciary getting involved to sort it out constitutionally, see above, as per WLS).

    Aplomb (d1af53)

  20. Does anyone see an answer there in 18? I’m still looking, but all I see is Levi calling me names.

    In Levi’s world of Constitutional analysis, the Supreme Court could hold that Congress no longer has the power to raise an army, no matter what Article I, Sec. 8 says in that regard.

    Maybe what we need for you here is an informational thread like the one Patterico has started, where we can ask everyone to list the statutes that Congress has passed, the President has signed, and the Supreme Court has invalided on the basis that they contravened a provision of the Constitution.

    How about the Gun-Free School Zones Act of 1990? Or the Violence Against Women Act of 1994?

    Maybe you heard about a decision a couple weeks ago — Kennedy v. Louisiana? There the Supreme Court seems to have struck down a provision of the Uniform Code of Military Justice authorizing the death penalty for the rape of a child — even though the Court wasn’t even aware it existed. Not necessary — such a law violates the 8th Amendment.

    You know what all these laws had in common?

    They were all passed by a Congress and signed by a President.

    Didn’t seem to matter, as a legal matter, now did it?

    WLS (1cdbde)

  21. Alpomb @ 19 — the check belongs to the Congress and its called impeachment.

    And we are not talking about generalized notions of Executive “authority”. We are talking about specific conduct under the authority as Commander in Chief.

    If you think the collection of intelligence against an enemy in a time of war authorized by Congress doesn’t fall within the Commander in Chief authority, then make that argument.

    But this isn’t an issue of unchecked Executive power in peace time, or against domestic political opponents.

    WLS (1cdbde)

  22. All right, here ya go. Let’s use BOLD for the question, and ITALICS for the answer, okay?

    WLS: Does the Executive, in the midst of exercising its war fighting authority, have to run to the FISC to obtain a warrant to continue listening to communications between Binalshibh and Atta?

    LEVI: They can go ahead with wiretaps as long as they obtain a warrant from a court that approves more than 99.9% of all warrant requests within 72 hours.

    My answer immediately following your question. Then, granted, I do get to making fun of you.

    Aplomb just tore you apart, too. I’d like to see what you have to say about that.

    Levi (74ca1f)

  23. Re: 21.

    (1) FISA was on the books long before Bush took office. It was passed by Congress and signed by the President. It has not been held to be unconstitutional. It was binding law, binding everyone.

    (2) We are not in a time of war, at least as defined by the Constitution. Only Congress has that power, under the Constitution, to declare war, and it hasn’t. Congress consciously chose not to invoke the War Power. It did authorize the President to take certain military actions after 9/11, without declaring war. That by definition (i.e., by not declaring war and unleashing whatever Art. II inherent power the Executive has) shows that the military actions should be executed under the existing laws of the land. If Congress had in fact declared war under the Constitution, we might have some interesting constitutional issues at play as to the scope of Executive action. But Congress didn’t do that.

    I really don’t understand any argument that the President was not bound by any valid and existing laws in his execution of a Congressional permission to use military force against certain enemies, when Congress chose not to Declare War under the Constitution. The Congressional authority and funding granting discretion in Afghanistan and Iraq was simply a law, no more or less a law than any other law, such as the FISA law. The President was required to comply with each and every valid law on the books. The law granting authorization to use military force in the MidEast did not trump earlier laws, such as FISA.

    Congressional authority gave the President enough discretion to launch military action in Afghanistan and in Iraq. The Constitution provides that the President will be Commander in Chief of any authorized military actions. However, the Constitution does not provide that the Commander in Chief is free to disregard the laws of the United States. In fact, the President is charged to uphold those laws. FISA was a valid law.

    (3) If there is any serious controversy about where the War Power of Congress and the President’s Commander in Chief duties might conflict, the issue is Constitutional. The third branch of the Judiciary was established in large part to resolve such Constitutional issues. When you say there is no check on the Art II authority of the Executive in the form of involvement by the judiciary, my brain explodes.

    Who is going to check an overreaching assertion by the Executive of Art II power if not the judiciary? Are you really going to give the President the sole, unchecked discretion to define the limits of his own power?

    Aplomb (d1af53)

  24. I responded to Alpomb — funny how he failed to mention impeachment. Its right there in the Constitution as a check on abuse by the Executive.

    Your answer isn’t an answer.

    Sure, the Executive could go to the FISC court for a warrant.

    The question is does he have to go to the FISC for a warrant under these circumstances.

    The phone being monitored is in Hamburg. Either that phone calls the US or the US calls that phone.

    Why is the President as Commander in Chief no longer able to collect intelligence on the enemy — something he’s authorized to do under Article II — without getting the permission of an Article III court?

    WLS (1cdbde)

  25. Aplomb @ 23 — there are no magic words required for a “declaration of war”. The AUMF is, itself, a sufficient expression of Congressional intent to constitute such a declaration.

    The Supreme Court recognized during the Civil War that the President was authorized to engage in war even though the Congress was out of session when hostilities commenced – the “state of war” between the North and South was a matter of fact even without a formal declaration.

    My hypothetical included an authorization by Congress to initiate hostilities against Bin Laden and AQ following the attack on the USS Cole, as was suggested at the time to the Clinton Administration by Richard Clarke.

    Re #1) The President has the responsibility to PRESERVE, protect and defend the Constitution. If a President believes a particular act of Congress improperly imposes on power committed to the Executive by the Constitution, the President has a duty to PRESERVE the Constitution, not concede the issue to the Congress. They are co-equal branches of government — the Congress is not a Super-Branch that runs the Executive in any manner it sees fit.

    The appropriate Congressional response is not to point to a statutory limitation it has passed, but to draft articles of impeachment if it believes the President has acted beyond the authority afforded him by the Constitution.

    Saying the Supreme Court has the authority to define Constitutional roles played by the other two branches makes the Supreme Court superior to them in the same way as saying that the Congress, in passing FISA, can limit the President’s authority under Article II — which amounts to an amendment of the Constitution without following the process prescribed for making such amendments.

    WLS (1cdbde)

  26. Why is the President as Commander in Chief no longer able to collect intelligence on the enemy — something he’s authorized to do under Article II — without getting the permission of an Article III court?

    Because that’s what the god damn law says.

    And don’t be so dramatic, the President can still collect intelligence. Like I’ve said before, in the entire 30 year history of FISA, they’ve rejected exactly 5 out of 22,000 warrant requests. FISA is extremely accommodating, always gives the benefit of the doubt, and errs on the side of caution. It exists only to put prevent reckless and unjust wiretapping of innocent American citizens. What is wrong with that?

    Levi (74ca1f)

  27. Saying the Supreme Court has the authority to define Constitutional roles played by the other two branches makes the Supreme Court superior to them in the same way as saying that the Congress, in passing FISA, can limit the President’s authority under Article II — which amounts to an amendment of the Constitution without following the process prescribed for making such amendments.

    That’s got to be the single most inaccurate misunderstanding of American checks and balances I’ve ever heard.

    Forgive me if I’m wrong, but did you once tell me you were a lawyer?

    Levi (74ca1f)

  28. Tell me what’s inaccurate about the sentence you quoted?

    As with all your other comments here, you’re great at claiming others are wrong, but you never quite manage to explain why they are wrong or what the right position would be.

    Do you have anything to add to the debate, or do you intend to simply continue to evade the central question?

    Whether the FISC has been especially accommodating in the past is irrelevant to the issue of whether the President is obligated by the Constitution to seek the FISC’s permission to do that which the Constitution entrusts to the Executive under Article II.

    Yes, I am a lawyer, and I’ve spend time before trial and appellate courts defending the perogatives of the Executive Branch.

    Have you ever studied these issues beyond the talking points at TPM or HuffPo?

    WLS (1cdbde)

  29. Not to put words in comments for cboldt, but I think the argument is that Atta, because he is in the U.S., becomes a U.S. person under the provisions of FISA, so to adhere to its provisions and to listen to his incoming and outgoing phone calls would require a warrant to stay within the framework of FISA.
    .
    Let me try again. I answered the hypothetical with a “That’s a slam-dunk ‘no’ [no need for warrant].” Then I posited a DIFFERENT scenario and asserted how FISA would work in the different context.
    .

    … the purpose is to seek to collect actionable intelligence which might be used by the military or civilian law enforcement to prevent an attack on US soil … is the President’s Article II authority as Commander in Chief to be constrained by FISA if Binalshibh decides to call Atta in the United States? Its not Atta’s phone that is being monitored — its Binalshibh’s phone in Hamburg. Does the Executive, in the midst of exercising its war fighting authority, have to run to the FISC to obtain a warrant to continue listening to communications between Binalshibh and Atta?

    .
    The answer is that FISA doesn’t even apply. Under the terms of FISA (1801(f)), that’s not even “electronic surveillance.” I’ll add, this is true without regard to war fighting authority (because if it IS, then you’re going to get tangled up in Congress’s war declaring authority, and the president’s authority to obtain foreign intelligence information does not depend on a Congressional declaration)
    .
    Even though Binalshibh and Atta were in communication (even if Atta initiates the communication from the US), it’s not electronic surveillance at all, for FISA purposes. See 50 USC 1801(f).
    .
    So, the answer to the blockquote hypothetical is “slam dunk no warrant required” – the surveillance is not even in FISA.”
    .
    Then I said “The next question is whether or not Article II power admits listening to communications between Atta and anybody he’s in contact with.” I probably should have said “A different question” or “Another question,” even though it ought to be obvious that there is a difference between attempting to acquire all of Binalshibh’s communications and attempting to acquire all of Atta’s communications. In that different hypothetical, my answer would be different from “that’s a slam dunk no.”
    .
    We don’t know the answer to [within Article II power], because, without the contents of the call between Binalshibh and Atta, we don’t know whether it’s reasonable to have [foreign intelligence information] suspicion of Atta.
    .
    But we DO know that to monitor Atta under FISA, would require a warrant. If no warrant, then the surveillance of Atta, while it might be within Article II powers, is not within the structure of FISA.
    .
    Under FISA, a FISA warrant is supposed to be obtained to monitor Atta located in the US (monitoring Atta located in the US is not the same as monitoring Binalshibh located in Germany – notice the change in hypothetical), whether he is a “US person” or an “agent of a foreign power under 1801(a)(4) “a group engaged in international terrorism or activities in preparation therefor.”
    .
    The warrantless regime of FISA’s 1802 is VERY narrow.

    cboldt (3d73dd)

  30. Achmed the dead terrorist: SILENCE! I KILL YOU.

    love2008 (6e616b)

  31. I believe the Gorelick wall discouraged the sharing of the contents of those [e.g., monitoring Binalshibh in Hamburg, who communicates with Atta in the US] calls even if they related to foreign intelligence prior to 9/11 with other intelligence agencies and certainly discouraged obtaining FISA warrants for U.S. persons purely on the basis of NSA derived information.

    The Gorelick wall was an internal construct of the DOJ, not mandated by any law, statute or Court case (the Gorelick memo itself recites that the procedures it erects “go beyond what is legally required.”). It’s basic function was to separate “foreign intelligence” from “criminal prosecution,” where both activities are being conducted by the FBI. The concern it addresses is bootstrapping criminal suspicion (without going through the numerous exceptions, please permit me to use the shorthand, “which requires a warrant”) from foreign intelligence. See the discussion of section 218 in http://www.fas.org/irp/crs/RL32186.pdf.
    .
    The Gorelick wall would not have been an impediment to seeking a FISA warrant for Atta, under the hypothetical monitoring of Binalshibh, as long as the investigation was aimed at acquiring foreign intelligence information emanating from Atta.
    .

    It seems silly to legally intercept a conversation between Binalshibh and Atta discussing a terrorist plot in the U.S. and not immediately be able to use the information to obtain a warrant to eavesdrop on all of Atta’s communications in the U.S. According to all of the accounts I have read, that is what was occurring due to resistance from the FISA Court.
    .

    In Re: Sealed Case No. 02-001, 310 F.3d 717 (Foreign Int. Surv. Ct. Rev. 2002) is the only window under my immediate recall, that views the FISC imposing rules on investigators, where those rules were in the same nature as the Gorelick wall.
    .

    There is no disagreement between the government and the FISA court as to the propriety of the electronic surveillance; the court found that the government had shown probable cause to believe that the target is an agent of a foreign power and otherwise met the basic requirements of FISA. … The FISA court authorized the surveillance, but imposed certain restrictions, which the government contends are neither mandated nor authorized by FISA. Particularly, the court ordered that
    .

    law enforcement officials shall not make recommendations to intelligence officials concerning the initiation, operation, continuation or expansion of FISA searches or surveillances. Additionally, the FBI and the Criminal Division [of the Department of Justice] shall ensure that law enforcement officials do not direct or control the use of the FISA procedures to enhance criminal prosecution, and that advice intended to preserve the option of a criminal prosecution does not inadvertently result in the Criminal Divisions directing or controlling the investigation using FISA searches and surveillances toward law enforcement objectives.

    .

    Applying the scenario suggested by that exchange to the Binalshibh/Atta hypothetical would have criminal investigators (who wouldn’t have access to the Binalshibh/Atta communications obtained by watching Binalshibh) deciding for some other reason to obtain a FISA warrant on Atta.

    .

    The FISCR case resulted in modifying FISC’s warrant request analysis from “primary purpose” (of the warrant is to gather foreign intelligence information) to “a significant purpose.”

    cboldt (3d73dd)

  32. “Under these circumstances, is the President’s Article II authority as Commander in Chief to be constrained by FISA if Binalshibh decides to call Atta in the United States?”

    If the interception is conducted outside of the united states, FISA doesn’t define this as “electronic surveillance.” Therefore, the ‘exclusive means’ provision doesn’t apply.

    They should try to get a FISA warrant on Atta though, because he looks like someone worth monitoring.

    afall (c72035)

  33. Having read Judge Walker’s opinion last week in which he determined that the federal common law “state’s secrets” privilege was abrogated by Congress with its passage of FISA …
    .
    The “abrogation” described in Walker’s opinion works in a very narrow context.
    .
    First, a plaintiff alleging wrongful government surveillance under FISA is required to show the court, with evidence that is NOT state secret, that he was subjected to government surveillance.
    .
    The “abrogation” occurs ONLY if that threshold is crossed. And then, the extent of the “abrogation” is that the government cannot assert state secret to prevent in camera ex parte review of evidence, to facilitate the court’s ruling on the plaintiff’s claim.

    cboldt (3d73dd)

  34. Levi again proves that he is incapable of good-faithed argument. He comes close when he has the inducement of financial incentive, but absent the carrot, he resorts to name calling and assertion.

    JD (75f5c3)

  35. Even though the judiciary has been checking the authority of the executive on Constitutional issues for over 200 years now, see Marbury v. Madison if you don’t believe me.

    .

    Marbury v. Madison is not about the Supreme Court’s authority against the executive. It’s about the scope of Supreme Court authority granted by the Constitution, vs. a Congressional enactment.

    .

    Justice Marshall found, when having to choose between two conflicting sources of law — one stated in the Constitution, the other stated in a statute — that the source of law “Constitution” would have to control the decision. To find in the other direction (statutes trump the Constitution) would be disrespectful of the power of the Constitution.

    .

    At the end of the case, the Supreme Court held that it did not have the power to do what it had been asked to do.

    cboldt (3d73dd)

  36. Have you ever studied these issues beyond the talking points at TPM or HuffPo?

    WLS – I am assuming that was a rhetorical question, no?

    JD (75f5c3)

  37. I think the question that WLS is asking is something along the lines of:

    “Monitoring the communications of the people who are strictly overseas is clearly constitutional, and I think virtually everyone here would agree that Congress could pass no law restricting this. So why can Congress pass a law for the domestic case?”

    And the answer that I’d give is that Congress, in passing FISA is implementing a different constitional provision, the fourth amendment prohibition of unreasonable searches and seizures.

    This does bring to mind a completely different hypothetical, though. I’m going to call it the “Red Dawn” scenario. In the case of an armed invasion of a portion of the US, would these provisions still hold? Would warrants be required to tap the communications of the antagonistic military?

    Skip (ba6438)

  38. Tell me what’s inaccurate about the sentence you quoted?

    Okay, here:

    Saying the Supreme Court

    I’m guessing you mean the judicial branch here?

    has the authority to define Constitutional roles played by the other two branches

    FISA doesn’t define anybody’s Constitutional roles. One of the judiciary’s Constitutional responsibilities is to check the executive’s power, and that is no less important than this Article II clause which you seem to think grants Bush infinite license to break laws he doesn’t like. If anything, FISA is a tool that grants the President more powers to protect the country. The courts’ oversight is simply there to prevent those powers from being abused. This is how our government is supposed to work.

    makes the Supreme Court superior to them in the same way as saying that the Congress, in passing FISA, can limit the President’s authority under Article II — which amounts to an amendment of the Constitution without following the process prescribed for making such amendments.

    Say hello to ‘checks and balances.’ I mean Jesus, you’re a lawyer? How did you pass 8th grade social studies? The Congress and the President make the laws. The check on those powers is the courts’ ability to decide whether or not those laws are Constitutional, or are being broken. The check on those judicial powers is that the President and Congress get to appoint and confirm judges.

    Here.

    Do you see how they’re all the same size? That means they’re co-equal. Your whole argument seems to be that the most important part of the Constitution is the part that grants the President the powers to protect us, and that everything else in our founding document should be laid aside for the President if he wants to do something ‘to protect us.’ That is not how it is supposed to work?

    As with all your other comments here, you’re great at claiming others are wrong, but you never quite manage to explain why they are wrong or what the right position would be.

    Yeah right.

    Do you have anything to add to the debate, or do you intend to simply continue to evade the central question?

    Still can’t find the answer I gave to your dumb question, huh?

    Whether the FISC has been especially accommodating in the past is irrelevant to the issue of whether the President is obligated by the Constitution to seek the FISC’s permission to do that which the Constitution entrusts to the Executive under Article II.

    The President is obligated by the Constitution to follow the god damn law. No one can reasonably argue that FISA does anything to prevent the President from protecting us. The bar is set exceedingly low for what is required for a warrant. It gives lots of wiggle room if you’re in a time crunch. And finally, it guarantees that the President isn’t abusing his power by wiretapping civil rights leaders or his party’s political opponents.

    Yes, I am a lawyer, and I’ve spend time before trial and appellate courts defending the perogatives of the Executive Branch.

    Jesus, have you ever won anything?

    Have you ever studied these issues beyond the talking points at TPM or HuffPo?

    This is literally stuff I learned in middle school.

    Levi (74ca1f)

  39. “Monitoring the communications of the people who are strictly overseas is clearly constitutional, and I think virtually everyone here would agree that Congress could pass no law restricting this. So why can Congress pass a law for the domestic case?”

    Because people in the country are protected by the Fourth Amendment.

    This does bring to mind a completely different hypothetical, though. I’m going to call it the “Red Dawn” scenario. In the case of an armed invasion of a portion of the US, would these provisions still hold? Would warrants be required to tap the communications of the antagonistic military?

    Yes.

    But there would be no way of enforcing such a protection; it is not as if courts would have any power.

    Michael Ejercito (a757fd)

  40. This is literally stuff I learned in middle school.

    And he never quit learning from that point on. Quite telling.

    JD (75f5c3)

  41. cboldt – Thanks for linking the Gorelick “Wall” memo for everyone’s benefit. It stands as a great example of the prosecution versus prevention mindset at the top levels of the Clinto Justice Department when it came to terrorism. The information sharing and minimizarion procedures in that memorandum, although apart from FISA, were in fact adopted by the FISA Court. In 2002, the Bush DOJ attemptempted to get the FISA Court to liberalize those rules as summarized below:

    “The Department of Justice has moved this Court to vacate the minimization and “wall” procedures in all cases now or ever before the Court, including this Court’s adoption of the Attorney General’s July 1995 intelligence sharing procedures, which are not consistent with new intelligence sharing procedures submitted for approval with this motion. The Court has considered the Government’s motion, the revised intelligence sharing procedures, and the supporting memorandum of law as required by the Foreign Intelligence Surveillance Act (hereafter the FISA or the Act) at 50 U.S.C. §1805(a)(4) and §1824(a)(4) (hereafter omitting citations to 50 U.S.C.) to determine whether the proposed minimization procedures submitted with the Government’s motion comport with the definition of minimization procodures under §1801 (h) and §1921(4) of the Act. The Government’s motion will be GRANTED, EXCEPT THAT THE PROCEDURES MUST BE MODIFIED IN PART.”

    The Sealed Case later in 2002 in the Foreign Intelligence Surveillance Court of Reveiw effectively reversed the FISA Court’s position.

    Some of the Court’s reluctance may be explained by the following history which apparently annoyed the Court and has not received much attention in the media:

    “Beginning in March 2000, the government notified the Court that them had been disseminations of FISA information to criminal squads in the FBI’s New York field office, and to the U.S. Attorney’s Office for the Southern District of Now York, without the required authorization of the Court as the”wall” in four or five FISA cases. Subsequently, the government filed a notice with the Court about its unauthorized disseminations.

    In September 2000, the government came forward to confess error in some 75 FISA applications related to major terrorist attacks directed agaiinst the United States. The errors related to misstatements and omissions of material facts. including:

    a. an erroneous statement in the FBI Director’s FISA certification that the target of the FISA was not under criminal investigation;
    b. erroneous statements in the FISA affidavits of FBI agents concealing the separation of the overlapping intelligence and criminal investigations, and the unauthorized sharing of FISA information with FBI criminal investigators and assistant U.S. attorneys;

    c. omissions of material facts from FBI FISA affidavits relating to a prior relationship between the FBI and a FISA target, and the interview of a FISA target by an assistant U.S. attorney.

    In November of 2000, the Court held a special meeting to consider the troubling number of inaccurate FBI affidavits in so many FISA applications. After receiving a more detailed explanation from the Department of Justice about what went wrong, but not why, the Court decided not to accept inaccurate affidavits from FBI agents whether or not intentionally false. One FBI agent was barred from appearing before the Court as a FISA affiant. The Court decided to await the results of the investigation by the Justice Department’s Office of Professional Responsibility before taking further action.

    In March of 2001, the government reported similar misstatements in another series of FISA applications in which there was supposedly a “wall” between separate intelligence and criminal squads in FBI field offices to screen FISA intercepts, when in fact all of the FBI agents were on the same squad and all of the screening was done by the one supervisor overseeing both investigations.

    To come to grips with this problem, in April of 2001, the FBI promulgated detailed procedures governing the submission of requests to conduct FISA surveillances and searches, and to review draft affidavits in FISA applications, to ensure their accuracy. These procedures are currently in use and require careful review of draft affidavits by the FBI agents in the field offices who are conducting the FISA case investigations, as well as the supervising agents at FBI headquarters who appear before the Court and swear to the affidavits.

    In virtually every instance, the government’s misstatements and omissions in FISA applications and violations of the Court’s orders involved information sharing and unauthorized disseminations to criminal investigators and prosecutors. These incidents have been under investigation by the FBI’s and the Justice Department’s Offices of Professional Responsibility for more than one year to determine how the violations occurred in the field offices, and how the misinformation found its way into the FISA applications and remained uncorrected for more than one year despite procedures to verify the accuracy of FISA pleadings. As of this date, no report has been published, and how these misrepresentations occurred remains unexplained to the Court.

    As a consequence of the violations of its orders, the Court has taken some supervisory actions to assess compliance with the “wall” procedures. First, until September 15, 2001, it required all Justice Department personnel who received certain FISA information to certify that they understood that under “wall” procedures FISA information was not to be shared with criminal prosecutors without the Court’s approval. Since then, the Court has authorized criminal division trial attorneys to review all FBI international terrorism case files, including FISA case files and required reports from FBI personnel and Criminal Division attorneys describing their discussions of the FISA cases. The government’s motion that the Court rescind all “wall” procedures in all international terrorism surveillances and searches now pending before the Court, or that has been before the Court at anytime in the past, was deferred by the Court until now at the suggestion of the government, pending resolution of this matter.

    Given this history in FISA information sharing, the Court now turns to the revised 2002 minimization procedures. We recite this history to make clear that the Court has long approved, under controlled circumstances, the sharing of FISA information with criminal prosecutors as well as consultations between intelligence and criminal investigations where FISA surveillances and searches are being conducted. However, the proposed 2002 minimization procedures eliminate the bright line in the 1995 procedures prohibiting direction and control by prosecutors on which the Court has relied to moderate the broad acquisition retention, and dissemination of FISA information in overlapping intelligence and criminal investigations. Paragraph A.6 of the 1995 procedures provided in part:

    Additionally, the FBI and the Criminal Division should ensure that advice intended to preserve the option of a criminal prosecution does not inadvertently result in either the fact or the appearance of the Criminal Division’s directing or controlling the FI or FCI investigation toward law enforcement objectives. (emphasis added)

    As we conclude the first part of our statutory task, we have determined that the extensive acquisition of information concerning U.S. persons through secretive surveillances and searches authorized under FISA, coupled with broad powers of retention and information sharing with criminal prosecutors, weigh heavily on one side of the scale which we must balance to ensure that the proposed minimization procedures are consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information. (§1805(a)(4) and §1824(a)(4)) ”

    These disputes between the FBI and the FISA Court on wiretapping are a big part of the lapses in intelligence gathering that contributed to 9/11.

    Later in 2002, the Foreign Intelligence Surveillance Court of Review effectively slam dunked the FISA Court and the Gorelick Wall procedures they were attempting to cling to in the Sealed Case which cboldt pointed to above. For example, they pointed out that there was no requirement in FISA for a criminal prosecution to be contemplated in order for a wiretapping warrant to be obtained.

    daleyrocks (d9ec17)

  42. What has any post of Levi’s lead one to believe that he ever attended middle school in the first place? Especially with articulate and witty retorts like these:

    “This post is some profoundly retarded shit.”

    That’s our boy, so edumacated he can split atoms with his mind.

    Dmac (ea35f7)

  43. As I recall, one of the problems with obtaining the warrant is that the written requirements were such that it took technical specialists away from their jobs while they assisted the NSA lawyers in writing the request.

    davod (5bdbd3)

  44. Comment by daleyrocks — 7/8/2008 @ 9:12 am. None of the problems the FISA court had with apllications appears to have come from NSA or DOD (Not sure who deleivrs the requst from NSA).

    davod (5bdbd3)

  45. cboldt writes: “Even though Binalshibh and Atta were in communication (even if Atta initiates the communication from the US), it’s not electronic surveillance at all, for FISA purposes. See 50 USC 1801(f).

    That reflects my understanding of the statute too, but I was under the impression in discussions of FISA here last year that the FISA court was not interpreting it that way – that the FISA court was making the NSA obtain court approvals for such intercepts even where the language seemed clear to me to not have such a requirement – and that that conflicting interpretation was the initial issue between the Bush administration and the FISA court. I do not know if I’ll be able to find that discussion.

    SPQR (26be8b)

  46. davod – NSA is a military operation. It does not have any standing to request warrants from the FISA Court and the FISA Court does not have any jurisdiction over the NSA’s operations do far as I know.

    daleyrocks (d9ec17)

  47. daleyrocks, NSA deals with the FISA court on a daily basis. It has the technical means for the intelligence wiretapping at issue.

    My involvement with NSA is a couple of decades old now, but my experience was that they were a very very professional bunch in NSA who never did any surveillance without having their legal “i”s dotted and “t”s crossed.

    SPQR (26be8b)

  48. daleyrocks, the attorneys who actually present to the FISA court are DOJ as I recall, but the interception, collection and much analysis is NSA.

    SPQR (26be8b)

  49. SPQR – I don’t disagree.

    daleyrocks (d9ec17)

  50. I was under the impression in discussions of FISA here last year that the FISA court was not interpreting it that way – that the FISA court was making the NSA obtain court approvals for such intercepts [e.g., monitoring a communication from outside of the US, when it involes a participant in the US] even where the language seemed clear to me to not have such a requirement – and that that conflicting interpretation was the initial issue between the Bush administration and the FISA court.

    .

    I believe there were conclusions like that here – there were plenty of them all over the place, starting in Dec 2005. I played mostly at FreeRepublic at the time, and it was all over there, too.

    .

    But beyond rank speculation, I don’t recall any evidence or even allegation that the FISC was requiring warrants for such intercepts. The statute is so easy to construe, even a FISA judge could do it – and the DOJ wouldn’t exactly “sit still” for a reading that cut off the executive’s right to penetrate foreign jurisdictions with no interference from a US court.

    cboldt (3d73dd)

  51. SPQR – I don’t think the FISA Court is in the NSA’s chain of command and purely foreign surveillance doesn’t require any warrants unless you get the oddball interpretation of the to which you were referring a few comments ago.

    daleyrocks (d9ec17)

  52. The short version is US Court incredulity – “You want us to approve a warrant to tap a phone where?”
    .
    Same sort of reaction one would get by walking into Traffic Court and asking for a wiretap warrant. “We don’t do that – you’re in front of the wrong court.”
    .
    Judges in the US have no power to entertain (let alone authorize or deny) requests to tap hardware located off US soil. They are powerless in that realm, and it’s such a simple concept that it goes without much discussion.

    cboldt (3d73dd)

  53. 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.

    JAR (9c32c0)

  54. The critical word there being UNREASONABLE, JAR.

    daleyrocks (d9ec17)

  55. This on-point to the question of getting a warrant to tap a phone overseas. But note that the target of surveillance was a US citizen living in Kenya. The motion under consideration was to suppres evidence seized from the search of his residence in Nairobi, Kenya in August 1997 and suppress evidence obtained from electronic surveillance, conducted from August 1996 to August 1997, of four telephone lines in Nairobi, Kenya. The evidence was not supressed.
    .
    2000 WL 1858492 : UNITED STATES of America v Usama BIN LADEN
    United States District Court, S.D. New York
    Dec. 19, 2000
    .

    The final consideration which persuades the Court of the need for an exception to the warrant requirement for foreign intelligence collection conducted overseas is that there is presently no statutory basis for the issuance of a warrant to conduct searches abroad. In addition, existing warrant procedures and standards are simply not suitable for foreign intelligence searches. . . . See also Verdugo, 494 U.S. at 278 (Kennedy, J., concurring) (explaining that several factors counsel against overseas application of the warrant requirement including: “the absence of local judges or magistrates available to issue warrants, the differing and perhaps unascertainable conceptions of reasonableness and privacy that prevail abroad, and the need to cooperate with foreign officials”) …
    .
    … Thus, although this Court does not accept as settled the Government’s proposition that it is impossible to secure a warrant for overseas searches or surveillance, it is clear that the acquisition would certainly have been impracticable given the absence of any statutory provisions empowering a magistrate to issue a warrant and the unsuitability of traditional warrant procedures to foreign intelligence collection.

    cboldt (3d73dd)

  56. cboldt, 3:01 pm, hmmmm, my recollection was that there was something substantive about the claim that the FISA court was requiring warrants for interceptions that otherwise appeared to us to be outside the definition of electronic surveillance. I guess I’ll have to do some searching of the old threads.

    SPQR (26be8b)

  57. cblolt makes a very good point at 56 re my hypothetical. While NSA “listens” in on telephone conversations that take place on phones in foreign countries, it doesn’t have to get a warrant to do so regardless of who that phone is talking to — even someone in the US.

    So, to make this hypo more appropriate to the debate, lets assume that the administration wants to listen to Atta’s phone in the US, but only to the extent that Atta is communicating with people outside the US — domestic-to-domestic calls are not to be intercepted.

    Again, this operation began as an effort to collect intelligence to aid the Executive in executing his Commander-in-Chief responsibilities under Art. II.

    Does the Executive have to go to the FISC for a warrant to listen to Atta’s phone in the US when the only conversations being intercepted are those with people in other countries?

    WLS (1cdbde)

  58. “SPQR – I don’t think the FISA Court is in the NSA’s chain of command and purely foreign surveillance doesn’t require any warrants unless you get the oddball interpretation of the to which you were referring a few comments ago.”

    I watched the Director of the NSA, on a TV program, say what I previously wrote

    “One of the problems with obtaining the warrant is that the written requirements are such that it took technical specialists away from their jobs while they assisted the NSA lawyers in writing the request.”

    Additionally: cboldt’s — 7/8/2008 @ 3:31 pm post suggest to me that the courts have already subverted the intelligence gathering operations of the US government and are, as with SCOTUS, eating into the constitutional powers of the president.

    davod (5bdbd3)

  59. Does the Executive have to go to the FISC for a warrant to listen to Atta’s phone in the US when the only conversations being intercepted are those with people in other countries?

    .

    I answered a slightly different hypothetical above, so that ALL of Atta’s communications were sought. The answer is “we don’t know” if it’s within Article II powers – and that if it’s conducted according to FISA, there will be a warrant because the target is located in the US, and the target is not an 1801(a)(1-3) sort of entity, and the means of communication aren’t under the sole control of foreign powers.

    .

    The answer to “but could he get just the international calls” is “who in their right mind would seek that sort of surveillance, if the target is suspicious?” I’d be most concerned about Atta’s domestic calls!

    .

    If the executive acquires any/all international communications, with no prior suspicion, is that within Article II power?

    cboldt (3d73dd)

  60. davod – I don’t dispute that the NSA helps to write the applications for warrants. What I disagree with is that they request them from the FISA Court. Again, I don’t believe they have the standing to make those requests.

    daleyrocks (d9ec17)

  61. This is literally stuff I learned in middle school.

    Then whomever taught you civics should be fired for the good of their students.

    Taltos (4dc0e8)

  62. “What I disagree with is that they request them from the FISA Court. Again, I don’t believe they have the standing to make those requests.”

    Why would they lack ‘standing’? They’re the US government. Thats the only entity WITH standing.

    afall (87fe55)

  63. “Whether the FISC has been especially accommodating in the past is irrelevant to the issue of whether the President is obligated by the Constitution to seek the FISC’s permission to do that which the Constitution entrusts to the Executive under Article II.”

    That sounds like an excellent case for the Executive to take before the judiciary. Is there any particular reason why the Executive continually refuses to take it there?

    And is there any particular reason why the Executive neglected to, even once, make that case in *any* forum until after getting caught red-handed violating the laws it now claims to be unconstitutional?

    Patrick Meighan
    Culver City, CA

    Patrick Meighan (2e0c3e)

  64. And is there any particular reason why the Executive neglected to, even once, make that case in *any* forum until after getting caught red-handed violating the laws it now claims to be unconstitutional?
    .
    The administration has given its reasons.
    .
    It said it didn’t bring the issue to Congress, first because it had no obligation to do so (the AUMF gives authority, and if it doesn’t, then we have independent Article II authority), second, because it believed Congress would reject a request to change the statute to accommodate the actual surveillance practices. See Dec 19, 2005 press briefing by AG Gonzales.
    .
    And third, it also said, and maintains, that the public should be kept in the dark about surveillance policy (as reflected in statutes), so it (and the terrorists) can’t evade interception. Of course, it doesn’t say “we think the public should be kept in the dark about policy,” but statutory law is basically a reflection of policy, and the government says that by secretly (but constitutionally/”lawfully”) snooping beyond those stated boundaries, it gains an advantage over terrorists who might otherwise evade detection. Disclosing the policy would tip off the terrorists. “[Public knowledge of] the fact that this program exists, in my judgment, has compromised national security.”
    .
    Congress agrees that the public should be kept in the dark, as it seeks to have the question of “how pervasive is secret and warrantless surveillance,” or “how much and what sort of probable cause is required to support secret and warrantless surveillance” remain unanswered, by enacting legislation that aims to dismiss court cases that test whether or not its own stated statutory policy is followed. IOW, Congress doesn’t care if the government breaks Congressional laws – it’ll adjust the law retroactively if the stakes are high enough.
    .
    FISA law isn’t worth the paper it’s printed on.

    cboldt (3d73dd)

  65. FISA law isn’t worth the paper it’s printed on.
    .
    Meaning that the government has no intention of being bound by FISA – it has authority that goes beyond the law, and the public has no right to know the extent of that unsupervised authority — except in the most general of terms.
    .
    Obviously, stating false limits in the form of statutory enactment has value to the extent it fools the public and the terrorists into believing that “the government surveillance line is drawn ‘here’.”

    cboldt (3d73dd)

  66. cboldt’s — 7/8/2008 @ 3:31 pm post suggest to me that the courts have already subverted the intelligence gathering operations of the US government and are, as with SCOTUS, eating into the constitutional powers of the president.
    .
    I suspect you are misreading that post as standing for a proposition that is opposite to what it actually says.
    .
    The case stands for the proposition that no warrant is required for US-conducted surveillance (or physical entry to property) of US citizens located outside the US, when a purpose of the surveillance or physical entry is to obtain foreign intelligence information.
    .
    None of the evidence obtained was suppressed in the criminal trial.

    cboldt (3d73dd)

  67. “Congress passed it and the President signed it” isn’t a legal argument. By the way, that particular President was James Earl Carter.
    .
    President Ford submitted model FISA language to Congress. The language was developed under the eye of Edward Levi, Ford’s Attorney General. Ford’s proposal had an express rejection of FISA being the exclusive means for conducting foreign intelligence gathering in the US. The genesis of FISA is an interesting subject of its own right, with all three branches wanting to appear responsive to public awareness of and uneasiness toward unsupervised surveillance.

    cboldt (3d73dd)

  68. #55 “The critical word there being UNREASONABLE, JAR.”

    In the history of this country the critical word has always been “Warrants” but I suppose 9-11 changed everything. I have to assume that’s your argument.

    JAR (9c32c0)

  69. JAR — the law is replete with exceptions to the requirement of obtaining a warrant.

    Go google the “automobile exception” to the warrant requirement of the 4th Amendment.

    As was noted, “unreasonable” is the key.

    WLS (1cdbde)

  70. The Supremes, making laws again. against the plain reading of the text. As you say, “unreasonable” whatever that may mean is the key.
    And the slide continues.

    JAR (9c32c0)

  71. Well, if you want to look at the actual words of the 4th Amendment, you would look to the historical meaning of “persons, houses, papers, and effects”, as those are the only things about which “the right of the people to be secure” is mentioned. And that right is only secured against “unreasonable searches and seizures”, not all “searches and seizures.” Nothing in the amendment supports the proposition that any warrantless search is an unreasonable search.

    wls (68fd1f)

  72. “Nothing in the amendment supports the proposition that any warrantless search is an unreasonable search.”

    Actually, it’s been a long argument but I think you knew that. And then there’s the question of who should make these decisions.
    I’m not averse to grey areas, and it was my mistake to imply otherwise. They’re a conservative obsession -along with legislation from the bench- for those who claim that they really don’t exist, and that there is always one “right” answer.

    On FISA I take the principled position that representative and divided government are a strength for those strong enough to face the responsibility and that presidents are not monarchs, or even in a crisis “Dictators” in the original Roman sense. At some point we have only ourselves to blame when what’s “reasonable”
    is redefined over time to mean the opposite of what it was.

    JAR (9c32c0)

  73. My current misunderstanding of cboldt’s position is that one purpose of FISA is to create the public perception that terrorist surveillance (warrantless monitoring international communication involving at least one US party) breaks the law but is crafted such that it can’t actually be applied to that situation. In effect people claiming that Bush broke the law are falling for the scam.

    boris (ecab60)

  74. Obama voted for cloture and for the FISA bill today, which included the provisions on retroactive immunity for telecomms.

    I was just eating some popcorn while having fun reading through the comments over at Firedoglake.com.

    One of the commenters there said that Clinton first voted for cloture, but then changed her vote to against cloture when it became apparent that there were more than the 60 votes needed to close debate and proceed to a vote. She then voted against the legislation.

    Now she can go to the leftwingnutroots in 2012 after Obama loses and say “See, I was your gal all along while Obama only pretended to be with you.”

    WLS (68fd1f)

  75. I’m voting for Obama, but don’t assume that means I take him all that seriously, as a politician or an intellectual.

    Your last comment was complete non sequitur, but I guess we’ll just leave it at that.

    JAR (9c32c0)

  76. Heh. Bunch of chickenshits. No takers to “If the executive acquires any/all international communications, with no prior suspicion, is that within Article II power?”
    .
    Nary a peep to the revised hypothetical and my “who in their right mind would seek [international only] surveillance, if the [domestic] target is suspicious?” response.

    cboldt (3d73dd)


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