New FISA defense is false

Yesterday former NSA Director Gen. Michael Hayden told the National Press Club that the government decided to spy on Americans without warrants because the FISA standard of "probable cause" was too onerous for the "war on terror."

That wasn't a sound justification, but at least it seemed like a plausible explanation for the administration's policy. One problem--Glenn Greenwald notes that Hayden's claim is false. The administration had an opportunity to revise the probable cause standard downward in 2002. However, Justice Department lawyer James A. Baker advised Congress not to change the standard. Baker swore up and down that the PATRIOT Act was strong enough to cover all our terrorist surveillance needs.

Comments

[m]

I heard a replay of his original comments wherein he claimed that the standard was reasonable cause rather than probable cause. He claimed that probable cause was not in the Constitution, and the reporter that asked the question was not sure enough of himself to nail Hayden.

Perhaps Hayden hasn't read the Constitution, or possibly the neofascists are circulating a new version. In either case he is in violation of his oath.

[Sifu Tweety]

It's not necessarily false; the alternative is that they couldn't go to Congress because the law change would be blatantly unconstitutional.

Which, if you ask me, is that much worse.

[joe o]

The constitution says warrants need probable cause. Which means that congress (and the president) can't allow a lower standard. Having congress change the FISA standard wasn't an available option.

[j swift]

"Perhaps Hayden hasn't read the Constitution, or possibly the neofascists are circulating a new version."

It is a new version. The game here is to split the amendment in two act as if one has nothing to do with the other.

The warrants clause has, in the Bushist mind, become Amendment 4.5.

[Dicky Neely]

You need to read what Bush said about FISA and wiretapping terrorists in a speech at Hershey, Pa. in 2004. I put the relevant comments on my blog, Dicky's Doodles and Scribbles, on Blogspot. I took the text directly from the transcript which is availble on the official White House web site. It s 180 degrees opposite of what he now maintains.

[gordo]

j swift--

That's not a new tactic for them. How many people have been convinced that the second amendment reads, "The right of the people to keep and bear arms, shall not be infringed?"

[Dabodius]

Gen. Hayden is a general, as was Douglas MacArthur. The man who fired him said, "I didn't fire him because he was a dumb son of a bitch, although he was, but that's not against the law for generals. If it was, three-quarters of them would be in jail." Plus ca change... Trouble is, Bush won't fire Hayden and we can't fire Bush.

[gordo]

The more I think about it, the more I think Hayden is just using a smoke and mirrors defense.

I mean, is it even relevant whether or not the constitution forbids these wiretaps? The constitution doesn't forbid me from driving without a license, but it would still be illegal because I'd be violating the law.

So the real issue is whether or not the FISA law was broken. The fact that Cheneyco keeps trotting out constitutional defenses tells me that they know that they broke the law, and are trying to muddy the waters.

[Lindsay Beyerstein]

and we can't fire Bush.

Oh yeah? Sure, we can't fire him yet--but suppose we take back both houses in 2006. It's not out of the question.

[cfrost]

The New York Review of Books has an article on the not-so legality of BushCo's snooping operation at:
http://www.nybooks.com/articles/18650

I resent the Bushpig's fascism and I resent the amount of time I have to spend reading about this kind of shit. Bush personally owes me and everyone else the time we have to spend fighting these assholes.

[Ginger Yellow]

As Greenwald rightly notes, the Baker memo blows the administration's defence out of the water. They can't even fall back on the sort of sophistry that j swift describes, because they themselves were arguing that it would probably be unconstitutional to spy on even non-US persons on "reasonable suspicions", while they were spying on Americans! They had a perfect opportunity to make it lega (though not constitutional), and they turned it down, saying a) we don't need it, and b) it could be unconstitutional. They are completely and utterly fucked, if anyone in the media is paying any attention at all. Which is doubtful, on past performance.

[Dick Cheney]

What all of you constitutional scholars have failed to take into account is that the president has the inherent constitutional authority under article 2 to eavesdrop on communications between foreign agents, even if one of them is in the USA and no act of congress can diminish that authority, even FISA.
The constitution is the supreme law of the land and as such, it trumps FISA, not the other way around.
The president of the United States has always had this power and unless the constitution is amended, always will.
If you want to make the election about your advocacy of privacy rights for terrorists, I have three words for you: Bring it on!

[R. Mildred]

Oh yeah? Sure, we can't fire him yet--but suppose we take back both houses in 2006. It's not out of the question.

But brain, where are we going to find some political representatives with backbones at this time of night?

[Lindsay Beyerstein]

Tomorrow night, Pinky, we will come up with a new plan. One that isn't foiled by the atomic weight of gold.

[Flint]

Well Dick Cheney...

You Neocons love to site the Constitution when it suits your agenda and attempt to turn it into a doily when it gets in the way of your fascist ambitions. So I thought I’d help you understand what Constitutional Scholars think about the Fourth Amendment vs. Articles I and II, as well as Bush’s claim that the Authorization to Use Military Force (AUMF) granted him the right to do the NSA wiretaps.

This is the legal opinion of Lawrence Tribe, Constitutional Law Scholar at Harvard University Law School on Bush’s legal justification:

“Finally, it is telling Attorney General Gonzales, when asked in his December 19 press briefing why the administration hadn’t simply proposed to Congress, in closed session if necessary, that it amend FISA to grant legislative permission for the kind of domestic surveillance program the President deemed essential to the nation’s security, replied that the administration had concluded such a request would probably have been futile because Congress would most likely have denied the authority sought! To argue that one couldn’t have gotten congressional authorization (in late 2001, when the NSA program was secretly launched) after arguing that, by the way, one did get congressional authorization (in late 2001, when the AUMF was enacted) takes some nerve. Apart from the obvious lapse in logic, it is axiomatic that legislative reluctance or eliminate a prohibition is no defense to a charge of its violation.

The inescapable conclusion is that the AUMF did not implicitly authorize what the FISA expressly prohibited. It follows that the Presidential program of surveillance at issue here ia a violation of the separation of powers – as grave an abuse of executive authority as I can recall ever having studied.”

http://online.wsj.com/public/resources/documents/conyers.pdf

[William Mitnik]

I make the following modest suggestion:
Pray with me -- all you blog folks out there in cyberland, for the early rapture--- pre-emptive rapture if you will--- of g.bush. Please now close your eyes and bow your heads:
Oh Lord , let georgie be taken by thee from this earthly realm immediately away into your presence --either with body intact as in the scriptures-- or via the old fashioned way-- as you decide, and let him sit at your side for eternity ---and leave the earth alone. AMEN.

[Flint]

Oh Lord...

I echo Brother Mitnik's prayer for the "preemptive Rapture" of GW Bush... but if its not to much to ask could you possibly, in your compassionate wisdom, could you also take...

Dick Cheney, Wolfowitz, Rumsfeld, Pearle, Bill O'Reilly, Jerry Falwell, Pat Robertson, Condoleeza Rice, Bill Frist, Tom DeLay, Sen. Pat Robertson, Hastert... yeah especially Hastert, Babs "those darkies never had it so good" Bush, Ken Lay, Alberto Gonzales, Senator Cornyn, That little squid of a Senator from Alaska who cries about his "bridge to no where" all the damn time.

But you can leave Laura Bush and the dog... on second thought just the dog! All we're asking is for a little peace and quiet around the planet for a while!

Amen!

[Flint]

PS. Lord... I almost forgot... Tucker Carlson and his bowtie, Joe Scarborough, Ruppert Murdock and the entire staff of FOX faux news.

Amen

[gordo]

Flint--

Tucker Carlson is the guy who put Rachel Maddow on the air. He annoys me to no end, but unlike Hannity and co., he's willing to hear the views of an intelligent liberal who's not always on the lookout for conservative positions to co-opt. Give the guy a little credit for integrity, and give his rapture ticket to Negroponte.

[StealthBadger]

If an international call originating in the U.S. (for purposes of warrants, not telephone bills) is exempt from the 4th Amendment, does this mean that anyone interacting with someone across the national border loses their rights as U.S. citizen under the 4th and 5th Amendment? Just askin'.

[cfrost]

If Bush goes to heaven,there are bound to be some uncomfortable encounters between him and the 30 thousand, or whatever, folks that he preemptively sent there ahead of him. Eternity is a long time to spend trying to avoid them. Couldn't think of a better fate for the little weasel.

[Dabodius]

"Sure, we can't fire him yet--but suppose we take back both houses in 2006."
That probably won't happen, but if it did, there would not be 67 Senators willing to convict and remove him. The House is more promising: it may well be up for grabs, and appropriataions must start there. A Democratic House majority could simply defund such bushwa as prolonging the occupation of Iraq into FY 2008, domestic spying, and secret prisons. They could nickel-and-dime his obsessions while aring them out in hearings and reports from subpoena-powered investigations. That would pull his snarly teeth but leave him on exhibition in the WH, toothless.

[DIck Cheney aka "The Puppetmaster"]

Flint my friend:
I don't know if that is the extent of Mr. Tribes' opinion on the matter but if it is I'd have to say that he is hiding behind his position as a "constitutional law scholar" to make a purely partisan argument. That quote does not even address article 2 and therefore fails to refute my argument in any way.
In fact if that quote represents the entirety of Mr. Tribes thinking on the matter I'd say that his failure to address the president’s inherent authority under article 2 is a deliberate attempt to deceive the public.
I am not a lawyer but let me quote what my lawyer said to me on the subject yesterday: “Anybody who believes that the president’s only authority is to carry out the acts of congress is an idiot who doesn’t know the first thing about constitutional law”.
That’s pretty harsh criticism coming from my normally circumspect attorney.
On the subject of the AUMF I’ll just say this: You can try to make all the narrow, legalistic arguments that you like but only a fool could believe that the AUMF authorizes the president to shoot and bomb the enemy but doesn’t permit him to listen in on their phone calls and furthermore that if one of the phone callers is within United States territory they have automatic immunity from the presidents powers as commander in chief.
The fact the president skipped asking for congressional authorization because he believed that he wouldn’t get it, or that it he thought that it might reveal our methods to the enemy in no way diminishes the fact that under article 2 he does not need it.
Does the president need congressional authorization to exercise his power as commander in chief: No.
Does the AUMF authorize NSA spying on international communications by our enemies: YES
There is no illogic in making both statements. They are answers to two separate questions and more importantly, the constitution is the supreme law of the land. The president’s constitutional authority as commander in chief can not be modified by congress or by the fact that the president’s arguments in his own defense seem contradictory to you or Lawrence Tribe.
The president seems pretty confident in his position to me. Like a poker player, he’s daring you to up the ante. If you think you have the winning hand, I urge you to “go for it”.

[REGINALD VON DORMPHMAN]

YEAH! I think george should immediately
begin to establish concentration camps in
the US for those so-called "citizens" here
who insist that they have a right to call
overseas to suspected suspects with suspected
ties to suspected AlQueda operatives.
There really is no limit to the executive's
power and george does not even have to acknowledge congress' so-called authority to limit his actions under the constitution-- the checks and balances set up under this system
were never meant to stop the President from
doing exactly what he wants whenever he thinks it correct and ignoring established law and procedure and 200 years of tradition; THE CONSTITUTION WAS NEVER MEANT TO STOP HIM FROM TAKING OVER THIS GOVERNMENT AND REDUCING CONGRESS TO POWERLESSNESS AND IMPOTENCE. In fact congress's supposed power to impeach is inoperative during whatever crisis the President cares to determine exists
and for the duration of that crisis as he decides it! If the congress tries to impeach him he will order, as commander of the armed forces and the FBI, and acting for the good of, for the safety of the country---order the arrest and imprisonment as he sees fit, of all those, including any disloyal Senators, who dare to provide aid and comfort to our enemies by questioning the unlimited power of the President to protect US citizens. Yes, the President is untouchable when he says he is trying to "protect" Amerika!
Faithfully execute the laws? Judicial review?
In time of "war"?--- don't be silly!
George, start building the camps!

[Jim Lippard]

"Dick Cheney" says Article II provides the president with "inherent authority" to intercept communications. He doesn't quote the specifics. The claim I've seen purports to derive this authority from the powers in Section 2, specifically from this "The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States".

I don't see it. Further, any attempt to argue that the executive's power as commander in chief is unconstrained flies in the face of the powers of Congress to regulate the use of the military in Article I, Section 8:

"To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;" and "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."