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?