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February 01, 2006

On NSA spying

A team of legal and constitutional scholars have published an open letter in the New York Review of Books explaining why the president broke the law when he authorized the NSA domestic spying program--ON NSA SPYING: A LETTER TO CONGRESS. It's brilliant, but it's also long and sort of technical.

So, here's a my shorter version:

The Foreign Surveillance Intelligent Act (FISA) is a law passed by Congress in 1978. FISA sets itself up as the final word on domestic wiretapping. According to the legislation, domestic wiretapping is illegal unless it it meets FISA standards or falls under the relevant sections of the U.S. criminal code.

FISA includes explicit provisions for warrantless domestic surveillance during wartime. (It's permitted, but only for 15 days following a declaration of war.)

The Justice Department claims that Congress implicitly authorized the NSA wiretapping program when it authorized the use of military force (AUMF) against al Qaeda. The DOJ's assertion is absurd on its face. Congress set out the rules for warrantless domestic spying during wartime in FISA, so we know it didn't intend for the law to lapse in the event of war. There's no way that AUMF implicitly authorized Bush to spy on Americans in wartime because Congress explicitly ruled out that option out 27 years ago in FISA.

The DOJ admits that FISA doesn't allow programs like the one that Bush authorized. Yet, it contends that it wasn't illegal for the president to disregard FISA. You see, Article II of the Constitution gives the president the power to collect signals intelligence on an enemy in wartime in his capacity as Commander-in-Chief. (Ignore for the moment the fact that we didn't actually declare war on al Qaeda.)

There's no doubt Bush has the authority to gather signals intelligence about the enemy abroad.
The only question is whether Bush also has the power to do the same thing inside the U.S. The short answer is that he doesn't. Congress said no, clearly, plainly, unequivocally no. Note that the DOJ isn't disputing that Congress has the right to regulate domestic wiretapping.

So, the DOJ claims FISA can't constrain Bush because a mere statute can't take away the Constitutional authority of the Commander-in-Chief.

"Oh, really?" say the NYRB scholars.

As the scholars point out, Congress shapes the president's powers as CIC all the time. If Congress passes laws that constrain the military, the CIC has to respect those laws. The Commander-in-Chief never above the law, even in wartime.

The DOJ now claims that the president's authority to collect signals intelligence is exclusive. Exclusive authority is a nice way of saying that the president is above the law. According to the DOJ's crackpot theory, the president has exclusive authority, so it doesn't matter what FISA says because it can't apply to a war president.

This is an extreme position and one that even the DOJ was unwilling to embrace until very recently. (The shift apparently happened after the NYRB article went to press.)

The prospect of George W. Bush running the largest military in the world outside the rule of law is truly terrifying. In addition to everything else that's going wrong, consider the structural incentives that arise from this claim to executive authority: The president gets godlike powers, but only in wartime. Sounds like a juicy incentive to keep us at "war" (and/or at war) forever.


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Fifty years from now...

America is at war with terror. America has always been at war with terror. Since the beginning of your life, since the beginning of the Party, always the same war.

And the clocks with strike thirteen.

Oops..."will strike". My bad.

Here's my shorter version: The Constitution provides for three branches of government for a reason.

Thanks for posting this Lindsay. I posted a lot of the same stuff previously when a troll came on the site claiming the Article I & II crap about the Presidents "unlimited powers."

The Non-Partisan Congressional Research Bureau was asked to respond to the Attorney General's rationale and gave the best in-depth analysis of the Constituitonal and Supreme Court rulings that come into play:

They concluded that the President doesn't have a case.

Bush's claims to legality rest on an extreme legal opinion by a Justice department Attorney John Yoo, which cite the "unitary executive" theory. It claims that the President is above the law and all constitituional checks and balnces... in short he is a king and congress mere advisors, as well as what ever the President does is legal.

Alito and Thomas are supporters of this bizarre theory.

David Cole, one of the constitutional law scholars cited in the article went after Yoo's bullshit and the Gonzales in these articles:

Conservative attorney Bob Barr concurred with Cole and the others and they had one of the members of his group "Patriots to restore checks and balances" file suit against the government over the NSA program. The ACLU has also filed suit on this so its in process.

President Nixon made the same claims and it was Article II in his Impeachment proceedings. Bush thinks that because the he got Thomas and Alito on the court he can over turn existing SCOTUS precedents and pull off a judicial/military coup that would essentially make him a dictator.

Jack Balkin weighs in and is, I think, correct. Posner identifies the only way you reasonably could reach the conclusion conservatives want - it just happens to be the one they've been denouncing ad nauseam for the last few decades.

Your best one-stop shopping for all the legal arguments probably can be found here.

The reason the argument of inherent constitutional authority arose so recently is that arguments in favor of this practice never entered the administration's heads until they got caught doing what they're doing. Prior to that, they didn't need a reason. Since then, they've argued:

-- That it was in compliance with FISA. Not only wasn't it on its face, Bush essentially admitted that the program violated FISA on national radio, thus rendering that argument, well, inoperative.

-- That it was inherently authorized by the AUMF. Utter horsepucky, as noted above.

-- That it was inherently authorized by Article II warmaking authority. Again, there is no precedent in American law for an inherent government power (as opposed to one explicitly enumerated in the Constitution) to be favored over an explicit statutory ban on that government power.

They're just throwing stuff at the wall, desperately hoping something sticks. If they thought "Because I said so!" would work, that's what they'd argue.

Oh. Wait.

Flint Buddy:
Troll? That’s a low blow. I don’t think you ever saw my response to your twenty eight hundred word screed (posted at 12:30am Monday morning too-do you have a life…….or a job?) so here’s what I had to say:
“Dear Flint:
Did you stay up all weekend crafting those responses? I don't really care what you think. I went to Maine last weekend.
I just finished skimming your responses. It seems that you may have put together a pretty good case for impeaching Richard Nixon. Good work.
I'll say this though. If the NSA listens in to a phone conversation between two people, one of whom is in the US and the other in Yemen for example, that is by definition "international", not "domestic".
And since I seem to have driven you completely out of your mind, that's all I'm going to say.
PS You obviously have no idea what is meant by the phrase "unitary executive" either. Until you can prove that you've passed any bar exam I'll stick with my attorney.
PPS I'm currently in the middle of reading "Battle Cry of Freedom", "Lincoln" and a book about how to start my own business. What makes you think that I have time to read a post that's longer than any of them? Try and do a little editing – Thanks”

Bush dared you to make an issue out of this last night and if you want to step into that bear trap, be my guest. After you folks turned the Alito nomination from one defeat into two separate and distinct defeats I’d think you would want to take a few days to lick your wounds before going back for more but I’m sure we can accommodate you.

We’re not really at war either, huh? You guys are the gift that keeps on giving.

No need for personal attacks or condescension, anyone. The internet is a Happy Place.

Why would a bar exam mention the unitary executive? Does that come up a lot when you're handling a divorce, or an IPO, or a discrimination suit? And why would your lawyer be an expert on it in any way other than the way Flint is - as an interested amateur? I guess if your lawyer works for the White House, or a major federal agency, or Congress, or is a law professor - but otherwise, she'd just be a hobbyist in these questions like nearly everyone else.

Flint's understanding of the theory is definitely a caricature. But he does provide links that you or I could independently evaluate, which is a courtesy most blog commenters don't provide, so yay for that.

I guess we (here at my employer) could continue to listen in without your knowledge. We have been doing this for more than fourty years in our buildings across the street from Ft. Meade, MD. However, even being a moderate - there are things I see and hear at this place that makes gladly give up a little of my telephone or email freedoms (which are not constitutionally derrived anyway) to make the rest of you safe.

Dick Cheney Parrot idiot...

We started into this when I quoted Professor Tribe the Constitutional Law Scholar from Yale. You said at the time that he was giving a "partisan attack" and attempting to "deceive the public."

So I cited two conservatives lawyers Bob Barr and and John Dean's opinions on the constitutional issues and why Bush should be impeached.

When you advanced your Supreme Executive Power from Article I & II nonsense... I cited the Non-Partisan Congressional Research Groups response to the Attorney General's Claim of legality. Where they Concluded:

"While courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information. Given such uncertainty, the Administration’s legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests. "

I haven even given you links to all of the pertinent Supreme Court Rulings, "The Keith Decision", "Youngstown Steel", And "Hamdhi vs. Rumsfeld."

At every turn I have given you top ranked legal experts who refute what you're saying and all that you come back with is unsubstantiated partisan hackery from some unnamed attorney of yours. The technical term for this is I believe "Bullshit."

The link in my previous post was to Professor Cole's refutation of John Yoo's Unitary Executive Thesis. Since you seem unable to figure out how to cut and paste a link... here is the short form from Findlaw:

The Unitary Executive Versus Judicial Supremacy

The coordinate construction theory counters the long-standing notion of "judicial supremacy," articulated by Supreme Court Chief Justice John Marshall in 1803, in the famous case of Marbury v. Madison, which held that the Court is the final arbiter of what is and is not the law. Marshall famously wrote there: "It is emphatically the province and duty of the judicial department to say what the law is."

Of course, the President has a duty not to undermine his own office, as University of Miami law professor A. Michael Froomkin notes. And, as Kelley points out, the President is bound by his oath of office and the "Take Care clause" to preserve, protect, and defend the Constitution and to "take care" that the laws are faithfully executed. And those duties require, in turn, that the President interpret what is, and is not constitutional, at least when overseeing the actions of executive agencies.

However, Bush's recent actions make it clear that he interprets the coordinate construction approach extremely aggressively. In his view, and the view of his Administration, that doctrine gives him license to overrule and bypass Congress or the courts, based on his own interpretations of the Constitution -- even where that violates long-established laws and treaties, counters recent legislation that he has himself signed, or (as shown by recent developments in the Padilla case) involves offering a federal court contradictory justifications for a detention.

This is a form of presidential rebellion against Congress and the courts, and possibly a violation of President Bush's oath of office, as well.

After all, can it be possible that that oath means that the President must uphold the Constitution only as he construes it - and not as the federal courts do?

And can it be possible that the oath means that the President need not uphold laws he simply doesn't like - even though they were validly passed by Congress and signed into law by him?"

I can back-up what I say with verifiable expert sources... something that you can't. So Bullshit away, but I'll be right back in your face

"Bush dared you to make an issue out of this last night and if you want to step into that bear trap, be my guest."
- Dick Cheney

Conservative Bob Barr already did and has filed suit in Federal Court on behalf of "Patriots to restore Checks and Balances." It in process as we speak.

""Flint's understanding of the theory is definitely a caricature. But he does provide links that you or I could independently evaluate, which is a courtesy most blog commenters don't provide, so yay for that."
- Eli

Is it a caricature Eli?

“Few lawyers have had more influence on President Bush's legal policies in the "war on terror" than John Yoo. This is a remarkable feat, because Yoo was not a cabinet official, not a White House lawyer, and not even a senior officer within the Justice Department. He was merely a mid-level attorney in the Justice Department's Office of Legal Counsel with little supervisory authority and no power to enforce laws. Yet by all accounts, Yoo had a hand in virtually every major legal decision involving the US response to the attacks of September 11, and at every point, so far as we know, his advice was virtually always the same— the president can do whatever the president wants.

Yoo's most famous piece of advice was in an August 2002 memorandum stating that the president cannot constitutionally be barred from ordering torture in wartime—even though the United States has signed and ratified a treaty absolutely forbidding torture under all circumstances, and even though Congress has passed a law pursuant to that treaty, which without any exceptions prohibits torture. Yoo reasoned that because the Constitution makes the president the "Commander-in-Chief," no law can restrict the actions he may take in pursuit of war. On this reasoning, the president would be entitled by the Constitution to resort to genocide if he wished.”…

Since leaving the Justice Department, Yoo has also defended the practice of "extraordinary renditions," in which the United States has kidnapped numerous "suspects" in the war on terror and "rendered" them to third countries with records of torturing detainees.[19] He has argued that the federal courts have no right to review actions by the president that are said to violate the War Powers Clause.[20] And he has defended the practice of targeted assassinations, otherwise known as "summary executions."[21]

In short, the flexibility Yoo advocates allows the administration to lock up human beings indefinitely without charges or hearings, to subject them to brutally coercive interrogation tactics, to send them to other countries with a record of doing worse, to assassinate persons it describes as the enemy without trial, and to keep the courts from interfering with all such actions.

Professor David Cole
Constitutional Law Scholar, Georgetown University Law Center

"I guess we (here at my employer) could continue to listen in without your knowledge. We have been doing this for more than fourty years in our buildings across the street from Ft. Meade, MD. However, even being a moderate - there are things I see and hear at this place that makes gladly give up a little of my telephone or email freedoms (which are not constitutionally derrived anyway) to make the rest of you safe."
- Wiretapper

I come from a long line of law enforcement folks who do this kind of work too and what you advance is bullshit! There is the rule of law and a way to do it without throwing away the Constitution and the bill of Rights.

That is why 12 NSA officers blew the whistle on the program!

1. Larry Tribe teaches at Harvard, not Yale.

2. You wrote this: "in short he is a king and congress mere advisors, as well as what ever the President does is legal." This is a caricature. When you said the theory would allow Bush to call off the 2008 elections like Hitler it was a caricature. You're acting like UE is a single, solid theory that's entirely encapsulated by a handful of quotes. It's actually a pretty mushy doctrine with weak and strong forms that apply across different areas of law. It certainly does envision a dangerously strong executive, but not a limitless military dictatorship. It doesn't envision anything coherent, at all, as far as I can tell, because all the writing I have read is long on the micro- (for-cause officer termination, c-i-c powers, etc), long on the super- (department theory, etc), and painfully short on the regular-size (a detailed and comprehensive framework for understanding the practical application across issues).

Glenn is the blogger who broke the James Baker angle of the NSA spying that was picked up by the Washington Post and the LA Times. He's a 1st Amendment attorney who has been dissecting this whole deal for the past several weeks.

And this is the initial response of a CBS legal analyst when reading the DoJ's 42 page position paper:

"The first time you read the 'White Paper,' you feel like it is describing a foreign country guided by an unfamiliar constitution."

Jacob Weisberg at Slate added that, "the nation implied by the document would be an elective dictatorship, governed not by three counterpoised branches of government but by a secretive, possibly benign, awesomely powerful king."

And John Yoo, the man who came up with the doctrine of unchecked war powers, believes the President can order the crushing of a child's testicles if the President believes it will yield valuable intelligence. Seriously.

It's clear the spying is illegal. What I wonder is whether there was a quid pro quo between the Bell Companies and the government where the companies would facilitate the eavesdropping in exchange for the re-monopolization of the local telcos (which are now acquiring the long distance carriers).

Forgive me Eli...

I originally posted Professor Tribes official response to Congress for the upcoming hearings on the NSA program:

He is as you correctly point out from Harvard.

I confused his credentials with David Cole from Georgetown Law who was educated at Yale:

Both were cited in the "open letter to congress" that started this thread.

As to my "Hitler" reference...

We have clear laws against torture, wiretapping domestically without judicial oversight, and denial of due process for US citizens. Yet the Bush administration has engaged in all three and more.

They have used John Yoo's memo as justification for this and you are right... it is real fuzzy law as the Congressional non-partisan research group and Professor Cole point out.

John Dean gives an excellent opinion on Bush and Yoo here:

George W. Bush as the New Richard M. Nixon: Both Wiretapped Illegally, and Impeachably;
Both Claimed That a President May Violate Congress' Laws to Protect National Security


Hitler in the name of national security suspended Germany's constitutionally protected civil rights with his "Enabling Act" after the Reichstag fire. Later he disbanded their Supreme Court when they wouldn't rule the way he wanted and established his own tribunals.

Our President has chosen to disregard the laws passed by congress (FISA) and go against the Supreme Courts rulings in the Keith decision (which was used in Article II of Nixon's impeachment) and disregard the Constitution, the Bill of Rights.

Can you say with any certainty just how far he will go? You think it is a caricature because you find unbelievable… after looking at his actions so far, for my part I have no such confidence.

Good Post Hume's Ghost...

I share Greenwald's dismay at the really poor job of questioning Alito. President Carter was on the tube tonight talking about his concerns about Alito's refusal to answer any questions regarding the extent of Executive power as well.

He's concerned as we are.

Hume's Ghost...

Don't get me wrong... we should be wiretapping, right now silicon valley is up to its ass in spys for the Chinese communist, but there's a legal way to do it within the bounds of the Constitution and our laws.

Dick Cheney Parrot Idiot...

You also characterized this as liberal patrisan hackery...

This just in:

"Grover Norquist is one of the most influential conservative Republicans in Washington. His weekly "Wednesday Meeting" at his L Street office is a must for conservative strategists, and he has been called the "managing director of the hard-core right" by the liberal Nation magazine. Perhaps the country's leading anti-tax enthusiast, he is, like Diamond, a hawk in the war on terror.

Despite coming from opposite ends of the political spectrum, they agree on one other major issue: that the Bush administration's program of domestic eavesdropping by the National Security Agency without obtaining court warrants has less to do with the war on terror than with threats to the nation's civil liberties.

"My view on the terrorists is that we should find all of them and kill them," said Norquist. "But we should also protect our civil liberties, which the terrorists are trying to destroy."

we should be wiretapping, right now silicon valley is up to its ass in spys for the Chinese communist, but there's a legal way to do it within the bounds of the Constitution and our laws.

Amen. I had suspected this since I went to work in high tech, years ago--it only makes sense, if you have a racially heterogeneous society for a rival, you're going to send spies there--but the Guardian, (sorry, no link for the article itself at the moment, but I'll look for it) recently had an article saying that Communist Chinese spies were infiltrating Britain and the US, both military and industrial concerns, as and when they pleased (i.e., often). It said that when the People's Republic of China went abroad to the west, they'd usually return with their entourage lighter by about two dozen people. Where did they go?

You all know I'm about civil liberties, and I'm not saying it to tip the scales either way in this particular debate, but what flint just said about this being a concern is true. We're getting hung upside down and buttfucked by these spies, and there seems not to be much we can do about it. I'm afraid that our administration's main concern seems to be for their friends' businesses (big surprise), but to deal with this particular problem--which could indeed impact those very businesses as well--they need to show some concern for America, and not just in a propagandistic soundbite.

"You all know I'm about civil liberties, and I'm not saying it to tip the scales either way in this particular debate, but what flint just said about this being a concern is true."
-1984 Was Not a Shopping List

It wasn't much of a debate, just a troll throwing out some crap. I'd refute it and cite verifiable authorities and supply links to back up what I said.

Troll boy would respond with a snark and a hearty juvenile "tis not", without backing up a single thing that he claimed.

His responses were more typical of disputes on an elementary playground and hardly worth calling a debate.

However, even being a moderate - there are things I see and hear at this place that makes gladly give up a little of my telephone or email freedoms (which are not constitutionally derrived anyway) to make the rest of you safe.

You go Wiretapper, Give Me Freedom! Or...not...I guess...

Actually, I meant the debate that R. Mildred and Wiretapper are taking up, of the right to privacy vs. security against military and industrial espionage. I'm very much in favor of holding to constitutional principles, even at the cost of our comfort, or even our safety (especially since these principles are, to me, _the_ things that make America worth something, instead of just a glorified shopping mall).

But this means that, in holding to these principles, we may be damaged. I don't think we should cravenly dismiss either constitutional principles, or other rights not enumerated in the Constitution, if the right to privacy in our communications is such a right. But we are being spied upon, especially by our rivals in China, so we need to identify exactly what our rights and principles are, and how we should protect and stand up for them.

We deprive criminals of their liberty, though liberty is our chief principle, because the damage the criminal does constitutes an emergency that threatens the very people and system that provides such liberty. Surveillance like this, on the other hand, is objectionable because it presupposes guilt, and invades the personal domain, and does so on the arbitrary authority of unaccountable agents, outside of any court. Yet without observation by official agents (say, police officers), how would any crime be halted?

I say, bring back the warrants.

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