Is That Legal?

I was already there and read several of the posts and was not shocked at all. What could be more clear? There are a growing number of people in the US who are in favor of a police state. The writing has been on the wall for a long time. I would heartily recommend to any flyby readers the works of Professor Shadia Drury for some philosophical background.

I am aware that, as Orin Kerr notes in his post, law on this point is vexed, but I think the language of 18 USC § 2511(f) is fairly straightforward: "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted." But now it appears, according to the AP, that Bush personally authorized at least three dozen instances of NSA wiretapping without notifying the FISA court. So the President has knowingly and wilfully violated a statute -- and, in fact, one specifically designed to be extraordinarily deferential to the executive branch -- on the grounds that it was inconvenient for him to follow the prescribed procedures and he didn't believe he could persuade Congress to change the law. Is anyone in Washington going to step up and say what should be obvious - that this is a "high crime" in the sense of Article II, Section 4, and (presuming the facts stated in the newspaper reports are true) merits immediate impeachment and removal from office?

I'm glad these FISA abuses are finally coming to light. One interesting issue "missing" in the current discussion is the incredible escalation of "legal" FISA warrants from a bare yearly handful 6 years ago to 10's of thousands (or more).

Of course, if you're an old-hand at following the evolution of our Surveillance Society, you're already aware of the profilgate "back door" abuses of CALEA and, especially, Echelon. As noted by those crazy kids over at UNESCO the Patriot Act added some provisions to "legalize" and codify these illegal Echelon abuses - essentially outsourcing domestic surveillance to "friendly" intelligence agencies. USPA now allows this illegally gathered foreign intelligence back in through the prosecutorial front door. A virtual rendition, so to speak.

I'm glad your following this Eric.

You're pissed? Try walking in my shoes! Twenty two years in the military. Twenty two years of wars, and conflicts, pain and discomfort, of being away from my family months on end. Never for glory. Never for money. Just this immigrant's belief that America's freedoms and liberties are worth any sacrifice to defend.

I'm sad, disappointed, and outraged that my government has decided my sacrifice and the sacrifice of millions of other Americans is worth nothing. That the ideals we fight for are no longer important. That liberty is a commodity to be traded in exchange for security.

People trust their government. They should not. Can we fault education? What has happened to the high school civics lessons that obligate us to vigilance? Where are the history courses that warn the citizenry of past abuses? Where are the political science classes that explain the rationale for a form of government grounded on a system of checks and balances? Who has failed to point out in psychology courses that man will be tempted and corrupted by power at every opportunity? Where are the educators who praise the American virtue of questioning authority? Of being rugged individuals who take control of government, rather than allowing government to control us? That we are the masters of our own destiny, and that we should hold any member of the government accountable for undermining our autonomy and personal self-worth?

We have defiled every good intention, every carefully drafted provision, every principle of freedom and human dignity wisely devised by our founding fathers, and kept safe and improved on by generations of vigilant Americans, for the common good. We have forgotten what the sacrifices are for.

We have been made weak by fear, and that is something I would never have predicted when I came to this country.

I see the word "Chicken Little" attached quite frequently to liberals. I'm incredulous the mockery is coming from the same idiots working feverishly to stoke a fire under the "War on Christmas" meme. The same people who think letting gay people get married will destroy the morals and good homes of children everywhere.

Now, I guess everyone's entitled to a little outrage and "alarmism." But conservatives need to look in the mirror. If they're worried that our cultural and moral values are crumbling upon the heads of good-hearted, Christian families everywhere, that's kinda the same thing as suggesting that "sky is falling."

What's more remarkable is that we've been made weak by fear after one attack, while facing a movement possibly made up of tens of thousands of people. Not 120 heavy divisions pouring over the border, or bombs raining down on our capital city night after night; there are people in our country who are willing to sell the constitutional republic in response to an enemy whose operational art peaks at hijacking and car bombs. The remarkable thing is that they think of themselves as the strong ones.

Mr. Marshall: I would very much like to quote you on my own blog, if you don't mind. You are a good citizen and good writer: contact me, please.

Eric: that's the best "read this" intro I think I've ever seen. But I do wish you'd stop making Malkin sound so damned interesting. When you link to her, I read her, and that's.... disappointing.

According to James Bamford, who has written extensively on the NSA, the FISA court over its 20 year history has approved every single warrent request with a single exception, and that exception was later approved on appeal.

So the Bush administration can't act as if FISA has been living in a Sept 10 world. FISA has shown its inclination to grant warrents, so it seems the Bush administration is just arrogant. This is outrageous.

This must have to do with the Cheney/Addington/Yoo theory of presidential power.

Professor Muller, before making the blanket assertion that the Administration has engaged in "lawless" behavior, don't you have some obligation to discuss the opinion of the Foreign Intelligence Court of Review, which notes "the president's inherent constitutional authority to conduct warrantless foreign intelligence surveillance." Or, at the every least, explain why you don't believe that court's analysis to apply to this situation. I know blogging isn't the same as writing a law review article, but don't you have some obligation to be intellectually honest, and to address countervailing points, in your blog posts?

Only after I posted my Yoo/Addington/Cheney thing did I read this morning's NY Times article. I wasn't plagiarizing -- I swear!

Anonymouslawyer, I was not aware that the Foreign Intelligence Court of Review has held that any such power extends to surveillance within the United States. I take it that you are confident that the law does establish such a domestic power. Could you show us, please, from which constitutional or congressional grant of power--other than the September 11 resolution--the authority to order warrantless domestic surveillance springs?

To anyone who has even the slightest inclination to look the other way on domestic spying -- as in, spying on people on American soil -- because we're in a so-called "war" (the one that, with due deference to Senator Blutarsky, isn't over until he, the CIC, says it is), I suggest you read the 4th Amendment.

Then admit that the 4th Amendment comes after Article 2 -- which means, whatever supposed god-like power George Bush pretends to possess -- it's limited by the Bill of Rights.

So I don't care if Congress passed FISA, or AUMF, or any other stinkin' law to grant Stalinist power to Bush.

The 4th Amendment trumps.

The best assessment I've seen of this is that, first, they -- Bush & Co -- illegally tap domestic sources, and then second, hold the citizen as an enemy combatant on the basis of this information.

So clear. So clean. No evidence to complain about. Because no one's around to complain.

Gotta love that Republican form of govt.

And, no, I'm not a Bush supporter. I could have been if he'd shown the slighest indication of being competent at running anything (other than a campaign) and he'd engaged the other half of America.

If Free Speech survives the Republicans, Bush will be remembered as the guy who couldn't do anything straight.

Need... more... puppies...

Professor Muller, to answer your question, the New York Times article reported that the government "has monitored the international telephone calls and international e-mail messages of hundreds, if not thousands of persons within the United States..." The Foreign Intelligence Court of Review, in its decision rendered in 2002, stated that: "[T]he [Fourth Circuit in United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980)], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. * * * We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power." In re Sealed Case, 310 F.3d 717, 742 (FICR 2002). Thus, there is at lease some authority for the proposition that the President has the inherent Article II authority to conduct warrantless foreign intelligence surveillance. Indeed, in Truong, the Fourth Circuit expresslly rejected the contention that the warrantless searches in that case violated the Fourth Amendment.

These cases, of course, may have been wrongly decided, and you are free to make that argument. I do think, however, that before so casually stating that the Administration is violating the law, you are obligated to make at least some effort to confront the existing authority that undermines your thesis.

Kittens. Feel better?

I don't think United States v. Truong Dinh Hung really applies here since he wasn't a US citizen or permanent resident alien (and, therefore, not a US person). Under existing law, his communications could be monitored in compliance with DoD5240.1-R without needing to request permission from a FISA court. What we're talking about here is monitoring of US citizens, not foreign citizens who just happen to be inside the US at the time they're being monitored.

Anonymouslawyer, you realize your post on this forum constitutes sending an "international message", right? If you listened semi-closely to Bush's speech, so full of Rovian faux outrage, you'd realize that they have intercepted domestic communications. Maybe they have some initial "international" communication to tweak their interest, but after that, as far as what he appeared to be justifying, all rules were out the door. Ever since CALEA was put in place the audit trail for this activity got significantly harder to discern. Hopefully the Senate will jump in and investigate what CALEA evidence remains (I can hear the electronic shredders now ;-) ) and compare it to the NSA intercepts (no matter how obtained) to figure out how broad and deep is this abuse of power.

Mojo, you raise a good point. The NYTimes article states that the wiretaps were of "persons" in the United States; it does not tell us whether those "persons" are temporary or resident aliens, or U.S. citizens. The Foreign Intelligence Court of Review's decision does not appear to be so limited but, regardless, Truong and the FICR's decisions may, or may not, be applicable here based on the specifics of the program, which none of us know. Indeed, I don't think anyone can make a truly informed judgment as to whether this program does, or does not, violate the law unless they know the specifics. That is the point I was trying to make earlier; not that the program is necessarily legal, but that it is rather precipitous to be stating that the Administration is acting unlawfully without knowing the specifics and, more importantly, without adverting to the fact that there is existing authority which might undercut that viewpoint.

(Just closing Simon's tag up there. Don't mind me.)

Anonymouslawyer, I am quite comfortable calling this program lawless. I do not read Article II to accord the President inherent power to engage in eavesdropping against U.S. citizens entirely outside the scope of neutral and independent review, and I am certain that the FISA does not confer such power on the President (except during a 3-day grace period in cases of emergency).

That you want to entertain a claim for limitless executive power to surveille Americans does not mean (a) that I want or need to, or (b) that the claim is plausible.

I'm confused. Are Professor M. and others here really claiming that Congress can, by statute, limit the President's power as Commander-in-Chief to spy on those whom he believes to be coordinating with foreign powers to plan attacks against the United States? If, in 1943, a suspected German spy was making calls to Himmler's number in Berlin, could Congress have prevented the President from listening in without first going to a court to ask "mother may I?"

Note that, in this case, the President's power includes more than just his Commander-in-Chief Power. It also includes the power that Congress delegated to him to wage WAR against the organizations responsible for the September 11 attacks. That resolution also recognized that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." Some of you may recall that the last such act of international terrorism was perpetrated by 19 individuals who were, at the time, living in the United States.

Any effort to prohibit the President's exercise of this inherent power committed to him by the Constitution would itself be lawless and contrary to the Constitution. In the same way, Congress could not make it unlawful for the President to veto a bill or nominate an Ambassador. Is there any post-Articles of Confederation legal authority to the contrary ?

Professor M now says that Anonynous lawyer is arguing for "limitless executive power to surveille Americans." I did not see that argument in Anonymous lawyer's posts. Instead, I thought Anonymous lawyer was simply arguing that the President could, in time of war, surveille people that (1) the Executive branch believes to be connected to foreign terrorist groups and (2) who were making or receiving communications with foreigners. That power seems extremely limited, unless one posits that there are a large number of people in the USA whom the President believes are connected to foreign terrorist organizations and that those persons are communicating in some way with foreigners. I know of no evidence that the President holds such a belief.

Professor Muller, I never argued that Article II does allow the Administration's action, as you have twice now suggested. I simply am making the far more modest point that there exists precedent that suggests that Article II does, indeed, confer that power, precedent which you have avoided addressing either in your original post or in your comments. Perhaps it is a quaint idea, but I believe that, before accusing anyone of acting lawlessly, one has to at least address the countervailing arguments.

By way of comparison, Professor Kerr, whose post you linked to above, also is far more measured in his analysis, noting in the comments section that, while he thinks the Administration's action is "odd in light of FISA, and questionable in light of the bin Laden case I link to above," he was "not enough of an expert on this to have more than a very vague sense."

Regardless, this is your blog which I enjoy very much, so I will retire from commenting further.

anonymouslawyer,
From the NY Times story,
"Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States ­ including American citizens, permanent legal residents..."
Seems pretty clear to me that we're talking about US persons.

You're quite right; Orin is much more measured here than I am. Absolutely. Orin's interested and reflective; I'm angry and disgusted.

This is my blog, not a law review article.

I'm really glad you enjoy the blog, and glad you visit. If you find any annoyance in my tone, it's because your first comment accused me of "dishonesty" (or, more precisely, said that I was not being "academically honest.")

I think I'm being very honest, although not especially academic.

Alan Meese asks: "Are Professor M. and others here really claiming that Congress can, by statute, limit the President's power as Commander-in-Chief to spy on those whom he believes to be coordinating with foreign powers to plan attacks against the United States?"

Why, exactly, would such a proposition be unthinkable?

He further says: "I thought Anonymous lawyer was simply arguing that the President could, in time of war, surveille people that (1) the Executive branch believes to be connected to foreign terrorist groups and (2) who were making or receiving communications with foreigners. That power seems extremely limited."

But surely we will learn--if we have not learned already--that the Administration views this claimed power as but one manifestation of a far deeper and broader power, of the sort that John Yoo was advocating? Surely Alan Meese is not maintaining that this invocation of executive authority to engage in domestic spying arose on its own, unmoored from the larger vision of executive power that was making the rounds at the time that this policy was proposed and implemented?

> the President could, in time of war,

Ah, now we have gone from "plan attacks against the United States" to "in time of war".

A few questions:

1) With whom are we at war?
2) When did Congress pass a declaration of war, and who specifically did that declaration state we are at war with?
3) What are the victory conditions of this war? When will it be over? How (precisely) will we know when we have won (or lost)?
4) What is the current status of this war? Are we at the end of the beginning? The midphase? The beginning of the end? Last throes? Mopping up?
5) What is the timetable for returning civil liberties and separation of power limits that have been violated due to the exegies of "war"? 1 year? 3 years? 10 years? 100 years?

Thanks!

Cranky

And here I thought original intent was part of the foundation W. is relying on to get to his kingly power to flout the law.

Dissenting in the Hamdi case last year, Scalia quoted Alexander Hamilton on the dangers of trading away liberty for safety, then wrote words that seem entirely applicable today: "Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis -- that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it."

I am curious whether any of the legal scholars on this blog can cite any specific private cause of action that has come as a result of implementation of the Patriot Act or the President's evesdropping policy? Or is this an academic debate based on hypotheticals?

I am also curious about what people think of the administrations use of the Hamdi decision and Justice O'Conner's pluralilty opinion to support their eavesdropping policy? There seem to be close parallels since both involve American citizens and both involve countervailing statutes.

In Hamdi, O'Conner argued that AUMF enacted after 9/11 provided sufficent authority for the Administration to detain Hamdi despite the existence of a countervailing statute that stated that no US citizen could be imprisoned or detained except pursuant to an Act of Congress. She cited such detention as a necessary incident of war).

(As an aside, as a political conservative I am a great admirer of Scalia but what good are my civil liberties if I am dead)?

What is the difference between detention, which is considerably more invasive, and warrentless eavesdropping of international calls of suspected terrorists as incidents of war? One could reasonably argue that AUMF is the only authority the President needs, not to mention Article II of the Constitution.

My point here is that is it no means clear what the legality of the President's eavesdropping authority is and like many things, in the pre judgemental eye of the beholder.

Ultimately, this is a politcal issue that will be resolved between the executive and the legislature.
And from what I can tell, most Americans would be willing to let a few international conversations be overheard with suspected terrorists if it meant saving hundreds of thousands of American lives.

Man on the street:

You seem serious so I'll tell you--the difference between detention and eavesdropping is that there is a rational connection between detention and the authorization to use "force" in the AUMF. There is no rational connection between an authorization to use force and the idea that Congress intended to render FISA or other statues governing monitoring American citizens. Congress knows how to do that plainly if it intends to.

I am a bit taken aback, though, by your response to Scalia's message. What good are your civil liberties if you are dead? Indeed! What good are they if you are alive?

That question sets up one of the most absurd strawmen of this national discussion. As if we were posed with the proposition that saving your live somehow necessarily involves violating your civil rights. I might ask as a counter point, what value has your life if we do not allow you civil liberties?

It is the coward's strawman you propose as well. Your fighting men in Afghanistan and Iraq are sworn to risk their lives to preserve the American way of life and the American way of life includes expressly that the government may not go snooping without due process of law (4th Amendment). You are worried about "hundreds of thousands of American lives" (though few more than 3,000 have been lost by terrorist actions) in the balance. What is really in the balance is whether we are willing to dispense with constitutional government to gain a little peace of mind. That is a shameful proposal.

While you seem to think this is a mere political discussion, it is a matter of whether the Constitution means what it says.
While it says the president is the CIC of the armed forces it also says that Congress can regulate matters of war. The president's men are trying to argue that CIC powers trump the Congress to the extent Congress impedes the president. If they win the argument, it means the end of Constitutional government and makes the president a military dictator, however benevolent. The Framers would be shocked at how badly we understand what they struggled to give us. What the president is asserting the authority to do unimpeded by law mirrors the things George III was doing to Americans before and during the Revolution--the very tyrannies that the Constituion was designed to protect Americans against.

Trading your liberties for a modicum of security as the coward would leads us down a dark path. They are already detaining people without due process, torturing without due process, American citizens and "terrorists" alike, next they'll come for your guns, friend. The same principle applies to any liberty you hope to enjoy if you let the principle stand in this case.

Anonlawyer

TROUNG speaks to the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance. There is no constitutional basis for the warrantless suveillance of citizens residing in the US.

I simply am making the far more modest point that there exists precedent that suggests that Article II does, indeed, confer that power, precedent which you have avoided addressing either in your original post or in your comments.

I was not aware that the Foreign Intelligence Court of Review has held that any such power extends to surveillance within the United States. I take it that you are confident that the law does establish such a domestic power. Could you show us, please, from which constitutional or congressional grant of power.