Here are three good posts about the brewing controversy over the Bush administrations's deliberate authorization of the NSA sidestepping of FISA court procedures for obtaining warrants for surveillance of terrorist suspects.
Bruce Schneier -- quite predictably -- covers an angle that nobody else does: the security implications of separation of powers.
Orin Kerr does a thorough legal analysis, concluding that the program is arguably constitutional, but clearly violates statute.
Marty Lederman wonders why, if the Bush administration believes its claims that the program is constitutional because of the President's commander-in-cheif role, and legally mandated by the congressionally approved authorization for the use of military force, then why does the President care about renewing the Patriot Act?
Another useful link, and not a new one BTW, is the EFF's very detailed page about FISA. It's been up since late September 2001.
One thing that I want to emphasize before further comment is that the issue at hand is warrantless searches, not unwarranted searches. That there were some grounds to suspect various individuals and want to conduct surveillance on them is not in question, but what is in question is whether the rights of innocent people were jeopardized or outright violated in the process. Those who argue that such violations, if they happened, are "worth it" simply miss the point. You don't get to make that call, even when you are President, and even when there's a war going on. Arguing otherwise is tantamount to throwing out the Constitution during any time of war -- and in this instance during an undeclared war that has no defined end.
And the commander-in-chief argument falls flat, IMHO, because of the principle of civilian supremacy over the military. The military serves civilians, not vice versa, and the commander-in-chief authority over the military simply does not extend to ordering actions that nullify criminal or civil law. There's plenty of constitutional and statutory backing for the idea of civilian supremacy over the military and congressionally authorized limits on the commander-in-chief's authority, so while the President even has authority to over-ride Posse Comitatus in times of emergency, that authority comes from Congress, not from his constituational role as commander-in-chief.
One of the FISA court judges has resigned in protest over this. Senators and Congressmen from both sides of the aisle are talking about investigations. Pundits are engaging in point-counterpoint over whether or not previous Presidents have done the same thing. A new front in the controversy is opening up as to whether or not the oral briefings that were given to a small number of Congressmen and Senators satisfied notification provisions of the National Security Act. And liberal bloggers are slamming the New York Times for sitting on this story for more than a year. I'm wondering about something else, though. Someone leaked it to the Times, clearly in order to get the word out; and when the Times sat on it I have to wonder why s/he didn't leak it elsewhere? Or, I wonder who else was also sitting on the story?
1. Chris Whisonant12/21/2005 08:53:07 AM
Good points Richard. I'm not really sure where I stand on this. First of all, this is being used only for tracing or intercepting international calls to suspected terrorists. Secondly, the spying has only been done on "dozens" of people. This means that the Administration was highly selective of when to use this. Third, the Senate Intelligence Committee was briefed on this. With the Senate involved, that is an example of checks and balances.
Don't miss the following quotes (as I see you haven't by the link to Drudge). I think everyone should see the full quotes here though. While the ThinkProgress.org site has the full text of the quotes, (so what if Drudge left out a legal addendum to the quotes) they also fail to point out the Eschelon activities going on during the Clinton administration. Talk about rampant wire tapping of US citizens!
Clinton, February 9, 1995: "The Attorney General is authorized to approve physical searches, without a court order"
WASH POST, July 15, 1994: Extend not only to searches of the homes of U.S. citizens but also -- in the delicate words of a Justice Department official -- to "places where you wouldn't find or would be unlikely to find information involving a U.S. citizen... would allow the government to use classified electronic surveillance techniques, such as infrared sensors to observe people inside their homes, without a court order."
Deputy Attorney General Jamie S. Gorelick, the Clinton administration believes the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes."
Secret searches and wiretaps of Aldrich Ames's office and home in June and October 1993, both without a federal warrant.
Jimmy Carter Signed Executive Order on May 23, 1979: "Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order."
2. Richard Schwartz12/21/2005 10:54:24 AM
@Chris: The sources you cited are deliberately misleading you. They are not giving you all the facts.
Where did you get "dozens" of people. What credible source has said "dozens"? The reports on this indicate that it is up to 500 individuals at a time. Here's the Times article.
And contrary to what I indicated above that "soemone" leaked this story, the Times actually indicates that they had "nearly a dozen" sources who came to them with information about this. That's clearly more than just the Democratic Senators and Congressmen who were briefed. That means they must have talked to White House, DOJ or NSA personnel, too.
Moving on: see this for rebuttal of the false claims about Carter and Clinton:
The 9 Feb 1995 executive order required "Attorney General makes the certifications required by that section."
The 23 May 1979 included the same provision with very slightly different wording.
What "certifications" were required?
From 50 U.S.C. 1802(a)(1)
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that--
(A) the electronic surveillance is solely directed at--
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title; [and]
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.
Emphasis mine. That's the difference. The Clinton and Carter orders followed the law by requiring the statutory certifcations. The Bush action clearly did not.
The Bush administration has not made either of the required certification. They can't because they'd have to lie in order to do so. There is substantial likelihood - that a US person (citizen or resident alien) will be spyed on, and the spying is not directed at "foreign powers".
Note: "foreign powers" as defined under this statute does not include terrorist organizations. There are, as a matter of fact provisions of the same statute that do cover terrorist organizations, so their omission from this provision is deliberate. The law was designed to require a higher level of cause -- i.e., the warrant process -- for collecting intelligence on terrorist organizations. Is that wrong? Maybe today it is, and provisions of the Patriot act dealt with that -- but they put the power in the FBI. The FBI's intelligence gathering capabilities, of course, are far inferior to the NSA, but appropriate course for the administration to have followed here would have been either to go to Congress to change the definition of "foreign powers" to include terrorist organizations, or to have Congresss tear down the wall between the NSA's and FBI.
I can't find the source for the Gorelick quote. (You didn't give a link for that one, but by the way... every one of the link you did give appears to be broken). I'm, sure, though that Gorelick is right. The President has the inhernt right -- under law -- to do exactly that, as long as the Attorney General makes the proper certifications. But not without. The Bush administration didn't make the certifications. Instead, the administration is stating flat out that the certifications required by law are not really required. That's simply stating that the President is not bound by Congressional statute, and that's false.
If the Congress does pass a law that the President feels is unconstitional, he still has to follow it unless a judge says otherwise! If he does violate it, what's supposed to happen is that a prosecutor or Congressmen file an action in federal court and a judge makes a ruling. But Bush secretly violated statute. There was no way for Congressmen to take it to a judge, because the handful of Congreesional leaders who were notified were obligated keep the secret. Or the very least that can be said is that none of them had the guts to outright go public. I wouldn't be surprised if at least one of the Times' sources was a Congressman or Senator, but the risk in going public taking the administration to court over it would have been substantially greater.
3. Bruce Perry12/21/2005 12:53:07 PM
@Rich, one suggestion about the timing of the story is that the information is about to be revealed in a book. Looks bad when a book publisher can scoop a newspaper. I'd like to know more about the reasons for the delay.
Here's an LA Times story about that:
@Chris. Here's one story that says US citizen were spied on.
BTW, I don't think Echelon was started by Clinton, but for some reason I'm having trouble finding a start date on that project.
4. Richard Schwartz12/21/2005 03:04:55 PM
I've found the Gorelick quote here:
He references a "foreign power". Once again, terrorists and terrorist organizations are not included in the FISA statute's definition of a "foreign power". This was not an accident. The intention was to set a higher standard, requiring probable cause and a warrant, for wiretapping terrorists.
Good or bad, that's the law. The Gorelick quote does not support the Bush administration's position.
5. Chris Whisonant12/21/2005 03:15:05 PM
@2 - How do you know the "certifications" were not made? Have those certifications changed in the years since? Did the Patriot Act remove the need for these certifications when it was law?
Regarding "dozens" that's what I heard from a CBS news reporter on the radio earlier in the week. They said that the administration was spying on "dozens" of people.
Regarding the Clinton approval of "physical searches", why even have that law if people inside America could not be searched without a warrant?
Further, if the Bush Administration had "chatter" suggesting that Osama was calling another Al-Qaeda member in the US to give the go-ahead for an attack within the next 12 hours, would you not want him to tap that phone line to prevent it? If he didn't and he told people that he would rather let thousands die rather than tap a phone call, then I'm certain that we would all be livid!!
@3 - Bruce, I couldn't tell when Eschelon was started either. But if he didn't start the program he allowed it to be active throughout his entire Presidency...
@4 - Good link. I like the part that reads "in many ways, Bush's policies are merely a continuation of those under Clinton, only with somewhat more vigor post 9/11."
6. Chris Whisonant12/21/2005 03:20:24 PM
Sorry, this link just came through my RSS. It's quotes from associate attorney general of the United States in the Clinton administration about the current NSA issue.
7. Richard Schwartz12/21/2005 04:07:52 PM
@6: The powerline article points to this Chicago Tribune article:
In that article, Schmidt lies or is simplyh wroing. He says "That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an 'agent of a foreign power,' which includes a foreign terrorist group." Up above I was a little inaccurate when I said that FISA does not define a terrorists or terrorist organizations as "foreign powers". Let me clarify.
In fact, FISA does include six categories of "foreign power" and number four is this: "(4) a group engaged in international terrorism or activities in preparation therefor;"
But look up above at @2. The provisions of FISA that allow warrantless search only apply to defintions 1, 2, and 3 of "foreign power". Terrorists are definition 4 -- deliberately not included in the statuted. Mr. Schmidt either does not know this, or he hopes that everybody else doesn't.
@5: How do I know the certificatoins weren't made? Because they would have had to certify things that they know are false. They have to certify that the are targeting foreign powers category 1, 2, or 3 -- which they weren't. They would have to certify that the surveillance was unlikely to intercept communications to "US Persons", and they are on record as stating that this was not the case. And furthermore, although I haven't found a specific reference as to who the certification is made to, whether it's the FISA court, the Congressional leadership, or whatever, this story has been out for several days and absolutely nobody has spoken up saying "they did these certiifications, therefore it is legal", or "we did these certifications, therefore it is legal". The Bush administration isn't arguing that they followed FISA. They are arguing that they were allowed to ignore it. They could also have filed for the warrants retroactively, but today the head of the NSA basically said that they decided not to do it because it's too much paperwork. (Sorry -- the reference for this doesn't seem to be right. I'll look for it later.)
Regarding the "dozens" -- I'll stick with Times on this until a primary source says they're wrong.
Regarding Clinton's physical searches: it's not "people in America" who can't be searched. The law requires warrants for US citizens and resident aliens. Other people in America can be searched.
And regarding your Osama scenario -- that's why FISA specifically allows getting the warrants after the fact. And you know what? If the FISA denies the after-the-fact warrant, the only consequence (as far as I know) is that they are required to destroy the data they collected. The administration could have been doing getting the warrants after the fact all along. They just didn't want to. It would have cost them time, and the administration thinks we should just trust them. Well, I say that the protection of civil liiberties is worth the time, and our system of checks and balances is put in place precisely because we're not supposed to trust the President, we're not supposed to trust the Congress, and we're not supposed to trust the courts. The only thing we're supposed to trust is that they are watching each other.
8. Bruce Perry12/21/2005 11:01:25 PM
Here's a New York Observer story on the delay of the Times story.
For some reason the Times isn't reporting on this.
9. Chris Whisonant12/22/2005 08:24:27 AM
On the last page of that Times article, we find the following concession that demonstrates the legality of the warrantless searches:
The next year , Justice Department lawyers disclosed their thinking on the issue of warrantless wiretaps in national security cases in a little-noticed brief in an unrelated court case. In that 2002 brief, the government said that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."
Administration officials were also encouraged by a November 2002 appeals court decision in an unrelated matter. The decision by the Foreign Intelligence Surveillance Court of Review, which sided with the administration in dismantling a bureaucratic "wall" limiting cooperation between prosecutors and intelligence officers, noted "the president's inherent constitutional authority to conduct warrantless foreign intelligence surveillance."
For a little more background see this Powerline "Colloquy" with Eric Lichtblau - co-author of the Times article:
10. Richard Schwartz12/22/2005 09:24:57 AM
@Chris: Nobody is arguing that the President doesn't have the authority to conduct warrantless searches against "foreign powers or their agents". He does. I have said so multiple times. Please stop thinking that I am saying otherwise. He does have the authority. Period. End of story. But...
But the President's constitutional authority is limited when implementation of those warrantless searches crosses paths with the rights, under the fourth amendment of the Constitution, of the people to be secure from unreasonable search and seizure.
Provisions of the Constitution are frequently in conflict with each other. Now, my preference is that resolving such cases should tend to favor the rights of the people, not the rights of the government -- particularly when it is one branch of the government claiming a right that is not checked and balanced by other branches! But my preference is not really relevant. There's a process that decides matters like this. When a situation arises in which two parts of the constitution are in opposition to each other, the legislature can choose to make law favoring either one or the other, the President can veto it or sign it, and the courts can rule in favor of or against that law. That's the process, and the beauty of it is that it is built on the checks and balances principles that are the cornerstome of the Constitution.
In this case. (i.e., surveillance of terrorist organizations that has a likelihood of also involving surveillance on "US Persons") -- like it or not -- the legislative brance created FISA, and FISA puts the fourth amendment above the President's inherent rights. FISA was signed into law by the (then) President. The provisions in question are "black letter" -- indisputably clear about the fact that terrorist organizations are not included in the "foreign powers" for whom warrantless searches are permissable. No court has ever ruled otherwise. That means that -- as of now -- the legislative choice of placing the fourth amendment above the President's powers in this case is the law.
No brief by a DoJ official, changes that. And unless the full court opinion, which is not quoted or links from the page you linked to, says explicitly that it FISA is unconstitional in the provision where it puts llmits on the President's inherent rights in the cases where the foreign power is a terrorist organization and the surveillance is going to intercept data from "US persons", then that ruling is irrelevant.
And I note that that you didn't chose to quote the passage that says exactly what I'm saying: But the same court suggested that national security interests should not be grounds "to jettison the Fourth Amendment requirements" protecting the rights of Americans against undue searches. The dividing line, the court acknowledged, "is a very difficult one to administer."
11. Chris Whisonant12/22/2005 01:11:07 PM
But you're leaving out the key part of it "of foreign powers or their agents"
Al-Qaeda members are, by definition, "agents" of the "foreign power" that we are fighting and attempting to gather data on.
I don't know about you, but I'm not personally hearing too many people arguing against the administration doing this.
12. Chris Whisonant12/22/2005 01:13:21 PM
Sorry, but you mentioned that they are "black letter" and that the terrorist organizations aren't included in "foreign powers". Where do you get that information from - or have I missed something? Thanks!
13. Richard Schwartz12/22/2005 02:16:03 PM
@12: In @2, I quote verbatim from 50 U.S.C. 1802(a)(1)
Specifically, 50 U.S.C. 1802(a)(1)(A)(i) specifies that for the purpose of allowing warrantless searches, the definition of "foreign powers" is contained in 1801(a)(1), (2), or (3). There are other definitions of "foreign powers", but for the purposes of warrantless searches, no other definition applies.
I thought I had quoted 1801(a) above, but I haven't. So here is the part that applies for warrantless searches:
§ 1801. Definitions
As used in this subchapter:
(a) “Foreign power” means—
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
And here is the portion of 1801 that does not apply for warrantless searches:
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.
As you can see, 1801(a)(1), (2), and (3) include only nations, factions of nations, and organizations that are openly acknowledged by foreign governments as being under their control. These three definitions do not include terrorist groups that act independently of the control of a nation or a faction of a nation. Terrorsts are covered by 1801(a)(4).
FISA is a cold-war era law. The threat represented by terrorists was far below the threat represented by the threats represented by nations, factions of nations, and organizations 1801(a)(1), (2), and (3). FISA allows warrantless searches only for the greater threat of the time it was enacted. This was deliberate, and it has not been amended.
Clearly, the situation today is different, and maybe FISA should allow warrantless searches for terrorist organizations, but it doesn't. The administration ignored this. They should have gone to Congress to amend FISA to fix this. They didn't. They should have gotten the warrants -- they can even get them after the fact! They didn't. The only excuse they have offered for this is that it's too much paperwork.
They also ignored 1802(a)(1) (B), (see @2 above, where I've got the text for that) which says that the warrantless searches can only be done when " there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party". Congress put the 4th amendment ahead of the President's inherent rights, and this, too, has not been amended. The administration ignored this too, so even if you were correct @11 that Al Qaeda terrorsts are "agents" of a foreign power, the warrantless searches were still not allowed in any cases where there was a likelihood that communicatons with US citizens of resident aliens were going to be intercepted.
But you're reaching the wrong conclusion in @11, too. First of all, the term "agents of a foreign power" was used by DoJ lawyers in a brief. It isn't part of a legally binding opinion of the court. It's not part of 50 USC 1802, or part of any of the definitions in 50 USC 1801. The statute doesn't provide any defintion of "agents of a foreign power", and 1802 refers only to 1801(a)(1), (2), and (3). Al Quaida is not a nation, recognized or otherwise, so its members are not agents of a foreign power under 1801(a)(1). It is not a faction of a nation, so 1801(a)(2) does not apply. It is not acknowledged by any government to be acting on its behalf, so 1801(a)(3) does not apply. So for the purposes of warrantless searches Al Qaeda and Al Qeaeda members just do not qualify as "agents of a foreign power".
And I agree. Nobody is arguing against the administration spying on Al Qaeda. We are arguing against them doing so without warrants when that spying has the side-effect of intercepting the communications of "US persons" whose rights are protected by the 4th amendment. They had an easy way to comply with the law, without introducing any delays. All they had to do was get the warrants retroactively. That's allowed. They didn't bother. They just ignored the law.
14. Chris Whisonant12/22/2005 03:17:30 PM
Thanks for the reference Richard. So you wouldn't have a problem if the Administration obtained warrants for this?
Anyway, I just found the following article at MSNBC that is fairly informative about what's going to be happening next.
15. Richard Schwartz12/22/2005 04:06:48 PM
I would have absolutely no problem if they obtained the warrants. I've read through the entire 15 USC subchapter containing 1801-1811, and it's clear that as long as there are procedures for "minimization" of data collected on US persons, the warrants are granted automatically. I have no problem with the use of the provision in 1805 for emergency procedures allowing issuance of warrants up to 72 hours after the start of surveillance. I have no problem with amending FISA to consider terrorist organizations like Al Qaeda to be "foreign powers" so that warrantless searches can be allowed -- as long as the AG can certify that it is unlikely that data for US persons will be collected. I have no problem, either, with relaxing FISA to allow the warrants to be issued even if it is likely that data for US persons will be collected as a byproduct of surveillance -- though I would not want that data to be admissible as evidence in any proceeding unrelated to the suspicions that are used to justify the warrant.
What I have a big problem with is the fact that the administration simply decided not to do things the legal way, and as of now is on the record as saying that they have no intention at all of changing the way they are doing it. They have put themselves above the law. This is 100 times worse than the lie that Clinton was impeached for.
But don't get me wrong. I don't want Bush impeached. I just want him slapped silly and required to obey the law. Instead of the slapping, actually, I think a censure by Congress will do.
Why don't I want him impeached? Because first we get Cheney, and Cheney will appoint a new VP, and then what will happen... guaranteed!... is that following mid-terms in 2006 Cheney will resign for "health reasons" so that the new VP will become President. Then in 2008 the GOP will be running an incumbent, and if s/he wins s/he will also be eligible to run in 2012. I'd rather live with Bush.
16. Chris Whisonant12/23/2005 07:04:20 AM
Interesting assessment on the impeachment...
On a lighter note - are you going to be bringing a guitar for JamFest?
17. Richard Schwartz12/23/2005 07:33:49 AM
@16: Neither Martin or Les will be making the trip. I'll have to make do with whatever instruments they have on hand. That'll give a an excuse, too: "I'm just not used to this fingerboard!"
18. Chris Whisonant12/23/2005 05:24:30 PM
- I hear ya!!
I believe I will be bringing my Jackson:
Will see how it pans out. Remember earlier in the year on my blog we mentioned that we should have something like this? I think it will be pretty cool - we'll see...
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