Transterrestrial Musings

Comments

The focus on radiation monitoring seems crazy to me, if the goal is to discredit Bush. If anything, it will make Joe Sixpack believe Bush has actually been doing something constructive about terrorism.

The more interesting question is what, if anything, will the administration do about publication of classified information, when that publication interferes with national defense, as this clearly does. I would not be surprised to see a chunk of the NY Times staff (including editors) indicted.

Posted by Paul Dietz at December 26, 2005 12:25 PM

I would not be surprised to see a chunk of the NY Times staff (including editors) indicted.

I would be shocked, myself, though I'd love to see it.

Posted by Rand Simberg at December 26, 2005 12:40 PM

Not to mention the whole outrage over warrantless searches is ludicrous. America is full of warrantless searches, from the IRS to Customs. Allowing them based on financial reasons but not for terrorist reasons is insane. In fact, we already have anti-terrorist warrantless searches...anyone flown recently? Does the name "TSA" ring a bell?

Posted by Toren at December 26, 2005 01:03 PM

The NSA surveillance could have been performed under the law. There's a court that even issues retroactive warrants, up to three days after the surveillance, and they almost never say no. Of course the president has the power to perform the surveillance, but this power, like all power, is constrained by law. In this case, he took no care to see that this law was faithfully executed.

Posted by Jane Bernstein at December 26, 2005 01:10 PM

"In this case, he took no care to see that this law was faithfully executed."

And why should he pay deference to a law enacted by congress to encroach on his Article II powers that are his and his alone? Acts of Congress do not hae the legal standing to superceed the Constution.

Posted by Mike Puckett at December 26, 2005 05:11 PM

Mike, he should do it because the Constitution requires him to. The most important presidential responsibility under Article II is that he must "take care that the laws be faithfully executed." This includes the laws that limit executive power.

There are ways to challenge the laws that Congress passes short of simply ignoring them. Congress duly passed the Foreign Intelligence Surveillance Act, a president signed it, and it is law. No president is above the law.

And finally, this is an act that permits retroactive warrants. My goodness, isn't that sufficient? How inconvenient would it have been to go through the court?

Posted by Jane Bernstein at December 26, 2005 06:11 PM

"Mike, he should do it because the Constitution requires him to. The most important presidential responsibility under Article II is that he must "take care that the laws be faithfully executed." This includes the laws that limit executive power."

And if Congress passed a law saying they have the authority to Appoint his Cabinet, should he also obey that one until he challenges that one in court. Some acts are so beyond the ken that the Exectuive need be under no compulsion by the Constution to give them creedance. This is one such example. The blame should lie upon Congress for passiing the Act in the first place as it consituted an unconstitutional power grab on its part. What about the oaths of office of the officials who knowingly passed the FISA Act power grab?

What if the President issues an Executive Order to Federal Law Enforcement to bar the Capitol Building stating that the Congress shall not Assemble without obtaining prior written permission from the Oval Office? That would clearly be beyond the Constituional authority of the Executive Branch to issue. Would Congress be obliged to give it any creedance?

The simple fact is the Courts have upheld the executive branch in similar cases in the past. President Bush has court precident on his side to buttress his actions. Perhaps this will illuminate the discussion:

http://powerlineblog.com/archives/012631.php

"This specific question was first addressed by the Fifth Circuit in United States v. [Cassius] Clay, 430 F.2d 165 (5th Cir. 1970). In the course of its opinion rejecting defendant’s claim that his conviction was based on information obtained from illegal wiretaps, the court wrote:

The fifth wiretap was not disclosed to defendant because the District Court found that the surveillance was lawful, having been authorized by the Attorney General, for the purpose of obtaining foreign intelligence information. The Supreme Court has not yet decided whether electronic surveillance for the purpose of obtaining foreign intelligence information is constitutionally permissible [citation omitted], though Mr. Justice White has expressed the view that such surveillance does not violate the Fourth Amendment. [citation omitted]

We…discern no constitutional prohibition against the fifth wiretap. Section 605 of Title 47, U.S.C., is a general prohibition against publication or use of communications obtained by wiretapping, but we do not read the section as forbidding the President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest.

In 1974, the Third Circuit decided United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), where the defendant was convicted of espionage. The court wrote:

In sum, we hold that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were “conducted and maintained solely for the purpose of gathering foreign intelligence information.”

Three years later, the Ninth Circuit decided United States v. Buck, 548 F.2d 871 (9th Cir. 1977), a firearms prosecution. The court said:

Foreign security wiretaps are a recognized exception to the general warrant requirement….

In 1980, the Fourth Circuit decided United States v. Truong, another criminal prosecution that arose out of the defendant’s spying on behalf of the Socialist Republic of Vietnam. The case squarely presented the issue of the executive branch’s inherent power to conduct warrantless surveillance for national security purposes:

The defendants raise a substantial challenge to their convictions by arguing that the surveillance conducted by the FBI violated the Fourth Amendment and that all the evidence uncovered through that surveillance must consequently be suppressed. As has been stated, the government did not seek a warrant for the eavesdropping on Truong’s phone conversations or the bugging of his apartment. Instead, it relied upon a “foreign intelligence” exception to the Fourth Amendment’s warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.

The court agreed with the government’s position:

For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.

The court held that warrantless searches for foreign intelligence purposes are constitutional, as long as the “object of the search or the surveillance is a foreign power, its agent or collaborators,” and the search is conducted “primarily” for foreign intelligence reasons.

The state of the law was summed up by the Second Circuit in United States v. Duggan, 743 F.2d 59 (1984), a terrorism case in which the court, among other rulings, upheld the constitutionality of the Foreign Intelligence Surveillance Act (FISA), which was adopted in 1981. The court wrote:

Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.

Finally, in 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break down the “wall” between law enforcement and intelligence gathering. The Patriot Act modified Truong’s “primary purpose” test by providing that surveillance under FISA was proper if intelligence gathering was one “significant” purpose of the intercept. In the course of discussing the constitutional underpinnings (or lack thereof) of the Truong test, the court wrote:

The Truong court, 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. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. 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. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

That is the current state of the law. The federal appellate courts have unanimously held that the President has the inherent constitutional authority to order warrantless searches for purposes of gathering foreign intelligence information, which includes information about terrorist threats. Furthermore, since this power is derived from Article II of the Constitution, the FISA Review Court has specifically recognized that it cannot be taken away or limited by Congressional action.

That being the case, the NSA intercept program, which consists of warrantless electronic intercepts for purposes of foreign intelligence gathering, is legal."

Posted by Mike Puckett at December 26, 2005 07:51 PM

"No president is above the law."

And no law is above the United Stated Constution, the supreme law of the land.

Posted by Mike Puckett at December 26, 2005 08:03 PM

Well, I'm a doctor, not a lawyer (forgive my geeky Star Trek reference), but I think the reasoning falls apart.

The argument appears to be that to the extent that what the President wants to do is prohibited by FISA, then FISA is unconstitutional. In fact FISA is perfectly constitutional. As the post you quote above observes, the constitutionality of FISA was upheld in US v. Duggan.

It's helpful to observe that it isn't just the Congress passing a law here. A president signed it and the courts affirmed it. Three branches of government concur. If a president signs a law, then yes, he is bound by it, as are his successors, however inconvenient that might be.

So, the question is "Can the Congress, under its Article 1 Section 8 powers to make rules for the government and regulation of the land and naval forces, make laws to check and balance the president's powers under Article 2 as commander in chief?"

I think the answer to that question is yes. It's very clear that the framers wanted to divide authority over the military to some extent - Federalist 26 and 69 are on point.

Additionally, the Supreme Court, in Hamdi v. Rumsfeld [2003], rejected the notion that the president has powers that are unchecked by federal law or the Constitution. A similar argument was considered, and rejected, by the court in Youngstown v. Sawyer Co. [1952].

To the extent that the NSA was gathering intelligence overseas, then no problem. No one is disputing the president's ability to order that kind of surveillance. And if Osama bin Laden happens to phone someone in the US, then I'm sure that the courts would uphold the admissibility of the fruits of such surveillance. The question hinges on domestic surveillance, which can't be done without a warrant beyond 72 hours.

Finally, I completely agree that no law is above the Constitution, which is supreme. But the president doesn't get to say what the constitution is, the courts do. If he or she has a conflict with the law, then he has three choices - go to congress, go to court, or go to jail. That's all.

Posted by Jane Bernstein at December 26, 2005 10:25 PM

Well, I'm a doctor, not a lawyer (forgive my geeky Star Trek reference), but I think the reasoning falls apart.

I think the answer to that question is yes. It's very clear that the framers wanted to divide authority over the military to some extent - Federalist 26 and 69 are on point.

Posted by Jane Bernstein at December 26, 2005 10:25 PM

"The president has the power as commander in chief under the Constitution to intercept and monitor the communications of America's enemies. Indeed, it would be a very weird interpretation of the Constitution to say that the commander in chief could order U.S. forces to kill America's enemies but not to wiretap -- or, more likely these days, electronically intercept -- their communications."

This is a dumb assertion for him to make, because the issue is not _simply_ one of "America's enemies," but American CITIZENS.

You can see it by simply altering his statement a bit--if you assert that the President has the power to electronically intercept American citizens' communications, then are you also asserting that the President has the power to kill Americans? No.

And we do not give the President unfettered power even in national security issues. Read the Constitution. It's in there. Note that the President does not have the power to raise and train an army, Congress does. The Constitution CLEARLY gives Congress power in national security. It does not give all national security power to the President.

Posted by Dan Kay at December 27, 2005 07:11 AM

"The more interesting question is what, if anything, will the administration do about publication of classified information, when that publication interferes with national defense, as this clearly does. I would not be surprised to see a chunk of the NY Times staff (including editors) indicted."

This is not a road that the President would want to go down. The fact that the NSA monitors communications has been known for a long time. The fact that the US government can monitor the communications of US citizens is also not new. What the NY Times exposed is that Bush ordered that the communications of US citizens can be monitored without a warrant and in violation of the FISA. Do you really want to see people thrown in jail because they reported the possible illegal actions of a president? Were you calling for reporters to be jailed during the Clinton Administration for reporting leaks then?

Or is it only people you disagree with who you think should be thrown in prison?

Posted by Dan Kay at December 27, 2005 08:04 AM

"You can see it by simply altering his statement a bit--if you assert that the President has the power to electronically intercept American citizens' communications, then are you also asserting that the President has the power to kill Americans? No."

Americans engaged in hostile acts in support of foreign enemies? Yes, he has the power to kill them if they choose to engage in such behavior.

" Do you really want to see people thrown in jail because they reported the possible illegal actions of a president? Were you calling for reporters to be jailed during the Clinton Administration for reporting leaks then?

Or is it only people you disagree with who you think should be thrown in prison?
"You can see it by simply altering his statement a bit--if you assert that the President has the power to electronically intercept American citizens' communications, then are you also asserting that the President has the power to kill Americans? No."

Strawman.

Or is it only people you disagree with who you think should be thrown in prison?"

Another Strawman.

Were you calling for people to be jailed in the Valerie Plame Case? That was trivial in comparison.

I think the NYT should be forced to reveal who leaked this and the leakers should see the inside of a cell for the rest of a natural born lives.

Posted by Mike Puckett at December 27, 2005 09:28 AM

"The argument appears to be that to the extent that what the President wants to do is prohibited by FISA, then FISA is unconstitutional. In fact FISA is perfectly constitutional. As the post you quote above observes, the constitutionality of FISA was upheld in US v. Duggan."

And the two paragraphs under that one.....

"Finally, in 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break down the “wall” between law enforcement and intelligence gathering. The Patriot Act modified Truong’s “primary purpose” test by providing that surveillance under FISA was proper if intelligence gathering was one “significant” purpose of the intercept. In the course of discussing the constitutional underpinnings (or lack thereof) of the Truong test, the court wrote:

Notice the first one where the Patroit Act was found to have modified FISA. Remember that Congress can superceede its previous acts with future acts. Laws are not immutable.

"Finally, I completely agree that no law is above the Constitution, which is supreme. But the president doesn't get to say what the constitution is, the courts do. If he or she has a conflict with the law, then he has three choices - go to congress, go to court, or go to jail. That's all."

And because one President chooses to sing a law does not mean he has to power to sign away constitutional powers reserved for the exectuive branch.

And the last one.....

"That is the current state of the law. The federal appellate courts have unanimously held that the President has the inherent constitutional authority to order warrantless searches for purposes of gathering foreign intelligence information, which includes information about terrorist threats. Furthermore, since this power is derived from Article II of the Constitution, the FISA Review Court has specifically recognized that it cannot be taken away or limited by Congressional action."

Posted by Mike Puckett at December 27, 2005 09:38 AM

Even the administration is not resting its justification to the Congress of the warrantless domestic surveillance program on the "unfettered article two powers" argument any longer. That's because they recognize that there are no such unfettered powers, but rather that the president's authority is limited by the laws that Congress passes.

The Federalist Papers 69, which I mentioned in a previous comment (apologies, by the way, for the double post), is very much on point here:

"The President is to be commander-in-chief of the army and navy of the United States. . . . It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature."

No president has any more authority to conduct wiretapping than that allowed by FISA. It regulates his Commander in Chief power, as Congress is specifically empowered to do.

The administration makes two other claims - the authorization of military force justifies the warrantless domestic surveillance program, and that getting Congress to amend FISA would have tipped off our enemies to what we were up to.

The authorization of military force obliges the president to “use all necessary and appropriate force” against persons that he “determines planned, authorized, committed, or aided” in the 9-11 attacks. The phrase "necessary and appropriate" is the key one - it means that you can only take measures to carry out the task you're charged with that are not expressly prohibited by some other law. The president's implied authority under the authorization of military force is limited by the other laws Congress has passed to regulate the executive branch, unless explicitly overruled or modified by Congress.

As to the second claim, given that FISA permits retroactive warrants of up to three days (actually up to 15 upon Attorney General certification), I don't see the reasoning here at all. To get Congress to modify FISA, sources and methods of intelligence collection need not have been revealed. A debate over whatever procedural impediments the administration had with FISA could have taken place, even been held secretly.

The president has to follow the law, even the ones he doesn't like. He doesn't get to say, "Oh, that one's unconstitutional, or impinges on powers I think I have under Article II." We have courts for that purpose. It's not his call. As I said earlier, he has to go to Congress to get the law changed, go to the courts to get the law invalidated, or obey the law as written. The administration chose none of these things - they just broke the law.

I personally think the President deserves censure at the very least for this.

Posted by Jane Bernstein at December 27, 2005 11:56 AM

It's now a race between the terrorists and the end of Bush's term. If this whole Presidential authority thing continues spinning out of control, as it seems to be doing, it is a question of when the next terrorist act will happen:

1) It happens before the next Presidential election - Bush gets blamed and the Democrats get elected.

2) It happens after the next Presidential election if the Republicans win - Constitution gets suspended.

3) It happens after the next Presidential election if the Democrats win - a military coup.

Posted by at December 27, 2005 01:50 PM

"No president has any more authority to conduct wiretapping than that allowed by FISA. It regulates his Commander in Chief power, as Congress is specifically empowered to do."

Even if for the sake of argument I grant you you Congress has the power Jane (Which I otherwise do not), The Patroit act superceeded FISA.

I think you are avoding the fact that Congress can modify or eliminate past laws with new laws.

I strongly encourage them to try. The Persident's popularity has surged in the past few days since the started pulling this stunt. The American people are sick and tired of the Democratic party playing politics with issues of national security. The Democrats are once again overplaying their hand.

The President deserves no such Censure. If the Democrats try and impose it, they will pay a heavy toll at the ballot box, far heavier thant the one the Republicans paid in 98 for the Clinton Impeachment.

Whoever leaked this information to the NYT deserves life in prison at a bare minumum.

Posted by Mike Puckett at December 27, 2005 03:57 PM

""The President is to be commander-in-chief of the army and navy of the United States. . . . It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature."

I do not see how you can draw that conclusion from that statement.

First Raising and Regulating means to pay for and decide what allocation of resources are necessary for function. Regulation meant differing tings in 1792 than today. Regulation meant 'to put into good working order'.

"No president has any more authority to conduct wiretapping than that allowed by FISA. It regulates his Commander in Chief power, as Congress is specifically empowered to do."

WRONG! That is a non-sequtir and a fallacious conclusion. The power to fund and set the order of battle of an Army and a Navy is not remotely the same as the function oc Commander-in-Chief.

The Constitution grants Congress has the power to raise the military and the President is granted the power to direct it into action. Putting things into action is an executive function. The President has no right to interfere with Congressional power to do the former(raise and regulate the military structure and funding) and Congress has no authority to interfere with the President's Article II, section 2 power to do the latter.

Therefore, it follows that the gathering of intelligence on hostile powers and fifth column supporters is a function of the Commander-inChief and specifically exempted for Congressional interference by Article II, Section 2.

Posted by Mike Puckett at December 27, 2005 04:10 PM

Mike, you assert that the president's authority over how he chooses to conduct the war is unregulable, but in fact, it isn't. On this point I believe that you are thoroughly mistaken.

The Congress passes all sorts of laws (the War Powers act, the Uniform Code of Military Justice, the Torture Act, the War Crimes Act, the War Powers Act, Posse Comitatus, among others) that encroach on the president's authority in military affairs. The constitutionality of this practice is unchallenged in two centuries. FISA slightly moderates the president's ability to conduct surveillance of US persons, as it should, for the protection of the freedoms of US persons.

I read the dictum (not law, by the way) in the Sealed Case you pointed out before, and I'm pretty sure that the jurist who wrote "FISA could not encroach on the President’s constitutional power" is likewise mistaken. The Congress and the president together passed the law, the Circuit Court upheld it in Truong, and no one has asserted that FISA's lenient restrictions are unconstitutional.

Perhaps the law should be changed. I personally am uncomfortable with the idea of retroactive warrants, but I grudgingly accept their necessity in time of war. Or perhaps the law should be challenged. Perhaps the administration will advance the same original argument you do here. But until such time as one or the other of these two things happen, the law has to be followed, not secretly ignored.

Following your line of reasoning, for example, would obviate the need for the Patriot Act, because the president's power to do whatever he pleases so long as he claims, subject to the review of no one at all, that it has something to do with national security. This is a recipe for tyranny in my view, and should not be permitted under the rule of law.

Posted by Jane Bernstein at December 27, 2005 08:03 PM

"Under FISA, the surveillance must target a specific US person and be conducted within the US.

In its most recent act of treason, the NY Times makes it clear that this was an Echelon-type data-mining program. No specific person targeted means that FISA does not apply. The Administration has not made this argument because it doesn't want to reveal the nature of the program to the enemy, but NYT has no such qualm.

Taken all together, it is quite clear that the program is quite legal, any way you slice it. The treason in leaking the info, however, is quite illegal and should be pursued vigorously."

Posted by Mike Puckett at December 27, 2005 08:59 PM

Another pertinent quote I found:

"I think most would agree that the AUMF addresses Al Quaeda specifically, and the Patriot Act pertains to terrorism generally, including the domestic neo-nazis and the like. I think Art. II is probably all he needs, but if the President wants to hang his hat on statutory law, the case is still strong. The fundamentals of statutory construction are pretty simple. Whenever conflicts arise between statutes the courts will attempt to read them in conformity with each other, even if the reasoning seems tortured. If they cannot be reconciled, the most recent act is deemed to implicitly repeal the former. The AUMF trumps FISA, as long as Al Quaeda is the target.

People are tripping over the 4 th Amendment issues where the 4 th Amendment
really does not apply. Notwithstanding democrat howls to the contrary, the
AUMF is a declaration of war against the terrorist group Al Quaeda. That
means that people reasonably believed to be members, or supporters of that
organization can be treated exactly like an expeditionary force of
the Chinese military invading the California coast. Their communications
can be monitored to the same extent as radio transmissions between the
tank and aircraft commanders busily placing ordnance on Malibu. This
specific grant of power to the executive places the power of the President
at its zenith."

http://charles-bird.redstate.org/story/2005/12/27/144640/41

Posted by Mike Puckett at December 27, 2005 09:02 PM

I'm fairly convinced that neither of the quotations you cite are on point. The argument is not that the domestic surveillance violates the fourth amendment, but that it violates FISA. And dragnets of the sort your first quote alludes to aren't permitted under FISA or any other law.

Again, if the president has a problem with the law, he has to challenge it or negotiate a change of the law with Congress. He can't just ignore it.

Posted by Jane Bernstein at December 27, 2005 11:05 PM

"Again, if the president has a problem with the law, he has to challenge it or negotiate a change of the law with Congress."

He did, it is called the AUMF.

"50 USC 1809 states that a person is guilty of FISA "except as authorized by statute", with the statute being the AUMF:

"That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." "

Posted by Mike Puckett at December 28, 2005 09:22 AM

Mike, you have shifted the focus of your argument from "FISA is unconstitutional" to "FISA doesn't apply" and now to "The AUMF (had to look that one up - Authorization of the Use of Military Force) modifies FISA."

Section 111 of FISA (remarkably enough, I actually looked it up and read it) lets the President conduct electronic surveillance without a warrant for a period “not to exceed fifteen calendar days following a declaration of war by the Congress.”

Is the AUMF a declaration of war? Not precisely, I think, because it doesn't invoke treaties and so forth, but I can accept that it's close enough for the purpose of making my point here. Let's assume that it is.

In that case, then at the very most, all the Justice Department is entitled to argue is that they are on a fifteen day warrantless clock, not four years and counting. FISA anticipated the necessity of changing the rules in war, gave the executive branch fifteen days to seek modifications to the law, and nothing in the authorization of military force explicitly repeals FISA.

Posted by Jane Bernstein at December 28, 2005 11:38 AM

"FISA anticipated the necessity of changing the rules in war, gave the executive branch fifteen days to seek modifications to the law, and nothing in the authorization of military force explicitly repeals FISA."

Implicitly is good enough, it is not necessary for it to mention FISA by name to superceed it, merely be the later Act of Congress.

AUMF gives the President the necessary authority to prosecute military actions regarding Al Quedia and implicit in this authority is the power to collect intelligence.

"Mike, you have shifted the focus of your argument from "FISA is unconstitutional" to "FISA doesn't apply" and now to "The AUMF (had to look that one up - Authorization of the Use of Military Force) modifies FISA."

Sure, why not? The arguments against the President having the necessary power fails on many levels. I only have to breach your arguments on one, you have to make your case on every level for your assertion to prove valid.

Posted by at December 28, 2005 12:33 PM

Last post is mine.

Posted by Mike Puckett at December 28, 2005 12:34 PM

Jane,

If you are concerned about the Constutional arguemnts and Federailsit writings, read this:

http://www.opinionjournal.com/editorial/feature.html?id=110007734

And if you want to go revisit to the Constutional Powers question:

"The final question, of course, is what would happen if the President and the Supreme Court should disagree about the constitutional scope of the President's national security powers. The President has the right and duty to interpret and apply the Constitution to the same degree as the Supreme Court. In a situation like this one, where the President is not asking the federal courts to enforce his view of his constitutional authority through, e.g., a criminal prosecution, it may be that the President could, and should, disregard an opinion of the Supreme Court that he regards as erroneous, as Lincoln did with regard to Chief Justice Taney's habeas corpus order during the Civil War. But for now, at least, that is an academic discussion."

http://powerlineblog.com/archives/012669.php

Happy now?

Posted by Mike Puckett at December 28, 2005 12:56 PM

Mike, I was raised to conclude that when the focus of someone's argument shifts rapidly, to conclude that it was a sign of flailing and to discount somewhat all but the last point he makes, as it is an implicit concession of the previous ones. Excuse me if I made that conclusion in error, and feel free to revisit any of your previous points if you like.

As for your most recent one, well, I can't see that it holds any water at all. An implicit reading of an authorization certainly cannot trump an explicit statute to the contrary, expecially when there is a procedure in the statute to rectify the executive branch's concerns (the fifteen day clock). Indeed, I have read that the administration sought to have the words "in the United States and.." inserted after "necessary and appropriate force" and before "against those nations, organizations, and persons.." in the authorization itself.

The conclusion is inescapable to me. The administration requested the ability to perform warrantless domestic surveillance inside the authorization itself. The Congress said "No." The administration did so anyway. Remember, "necessary and appropriate" has a fairly specific meaning, and doesn't let you off the hook for obeying the law.

Before now, a President has never claimed that his Article 2 power as Commander in Chief gives him license to violate federal law. To the extent that the President conducted warrantless surveillance on Americans, he has broken the law.

Even the powerline blog entry you cite has some ambiguity on the subject of whether the president even needed to break the law.

Posted by Jane Bernstein at December 28, 2005 06:59 PM

"Before now, a President has never claimed that his Article 2 power as Commander in Chief gives him license to violate federal law. To the extent that the President conducted warrantless surveillance on Americans, he has broken the law."

All have claimed that thwy were not actually bound by things like the war powers act.

All necessary and apropriate force. Brevity is the soul of wit. I pretty much think that covers wiretapping under its generous 'penumbra'. The courts like penumbras you know! When there is a conflict between a newer and an older statute, the newer one trumps the older.

Jane, If you are so sure that Bush violated the law, please contact your 9presumably Democratic)representative and encourage him in the strongest terms to seek articles of impeachment. AND TO DO SO IMMEADIATELY!!!!!

I assure you, that I would love to see this claim that he broke the law put to the ultimate test by the Democratic party. Please, oh please, let the Democratic party call for articles of impeachment over this.

"To the extent that the President conducted warrantless surveillance on Americans, he has broken the law."

I am sure the American people will want to see him swiftly prosecuted by Congress for his eavsedropping on Al Quedia operatives communicating from American soil with their overseas bretheren and will thusly reward the Democratic party for their stern support of our enemies 'civil rights'.

Riddle me this Batman! If what the President is so wrong, why hasn't ONE Democrat stepped forth upon the floor of the House or Senate and gone on record demanding that the President cease and desist immeadiately? If this is the slam-dunk guilty-for-certain act that you think it is, why is not one brave Democratic soul asking him to stop? Cynthia McKenney where are you!?!

Posted by Mike Puckett at December 28, 2005 07:30 PM

"Riddle me this Batman!"

There's an old saying that when you find yourself in the bottom of a hole, stop digging.

Dude, stop digging.

Posted by Tim Barnes at December 28, 2005 10:02 PM

This seems intemperate to me, but I'm content to continue.

Although presidents have claimed that they are not bound by the War Powers act, none has explicitly violated its provisions. In the case of the War Powers act, the argument against it has been made correctly - in public, and potentially someday in court, in other words, out in the open. It has not prevailed, and in my view it should not, but maybe someday Congress will see fit to change the law, or the courts will see fit to invalidate it. Until this happens, presidents are bound by this law.

In the case of FISA, a president has chosen to violate the law. It's a different situation entirely - the difference between argument and action.

As for penumbras and the like, those things are invoked in the absence of statute. In the presence of statute, you have to follow, you know, the black letter law. If the Congress wanted to relieve the president of his obligations under FISA, they could have done so. And even if the president thought they had, he can't just assert the power and act on it. A conflict like that would have to be litigated in court, or consulted about with Congress.

The date of one act overruling the previous one is a relevant observation, but only if both acts are explicit in their details. When the latter one does not even address the primary focus of the former, which is extremely detailed in its permissions and restrictions, the argument fails. And besides, the argument should be made in court, not in retroactive justification for actions taken in violation of law.

The rest of your post appears to deal with political feasibility of impeachment. While I personally support the idea of impeaching someone who has violated the civil liberties of Americans, I am of course content to defer to the judgment of the Congress. I find this a much more serious matter than the last impeachment, and it may surprise you to know that I supported removal of the previous president from office (no one made him lie under oath, after all, and that is a very big deal). Of course, I was a surgical resident at the time and a little preoccupied with medical stuff, but I wasn't totally unaware of what was going on around me.

My representative is a Republican, and both my Senators are Democrats (I live in California). I have just e-mailed all three of them to ask them to pursue holding the administration accountable for its actions. Thank you for the suggestion. I expect that when Congress reconvenes at the end of January, that there will be hearings about this matter at the very least.
And so the president has been conducting warrantless domestic surveillance against Al Qaeda operatives? Who says that they are Al Qaeda operatives? Mr. Bush? Mr. Gonzales? Dr. Rice? And who holds these people accountable? And the next people and the next, when this administration passes into history? Do you really like this precedent?

Let me leave you with a passage from a favorite play, Robert Bolt's "A Man for All Seasons." In this passage, More argues for the centrality of the law, over and against men, in the governance of human affairs, when his family wants him to have the disloyal Rich arrested:

Wife: Arrest him!
More: For what?
Wife: He's dangerous!
Roper: For all we know he's a spy!
Daughter: Father, that man's bad!
More: There's no law against that!
Roper: There is, God's law!
More: Then let God arrest him!
Wife: While you talk he's gone!
More: And go he should, if he were the Devil himself, until he broke the law!
Roper: So, now you give the Devil the benefit of law!
More: Yes! What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down (and you're just the man to do it!), do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

I care about the rules, because we can't predict the outcomes. We have to follow the rules that we've agreed to follow.

Posted by Jane Bernstein at December 28, 2005 10:06 PM

"There's an old saying that when you find yourself in the bottom of a hole, stop digging.

Dude, stop digging."

Dude, I am not the one in a hole but you are no doubt walking inside the impeachment tunel. Please, walk toward the light!

Posted by Mike Puckett at December 29, 2005 09:29 AM

"In the case of FISA, a president has chosen to violate the law. It's a different situation entirely - the difference between argument and action."

FISA modified by AUMF so no law was broken.

"As for penumbras and the like, those things are invoked in the absence of statute. In the presence of statute, you have to follow, you know, the black letter law. "

Really? There weren't any laws explicitly prohibiting abortion when the Supremes found the penumbra of the forth to cover it? Could not a penumbra or Article II cover this? You are selective in your arguments.

Posted by Mike Puckett at December 29, 2005 09:34 AM

"The date of one act overruling the previous one is a relevant observation, but only if both acts are explicit in their details."

Jane, care to provide some legal precident to support this gratutious assertion?

Posted by Mike Puckett at December 29, 2005 09:40 AM

I think this entire matter hinges on one (forgotten -- I forgot it myself) word of the fourth amendment. The word unreasonable.

The fourth amendment prohibits unreasonable searches. Presumably, searches pursuant to a valid warrant are reasonable. Presumably, searches based upon probable cause that a crime is about to be committed are reasonable. The probable cause presumption of reasonableness has even been expanded to include searches where the target of the search is a foreign power or agent.

On another site someone posited this question: Does the President have the authority to search a building which is purportedly housing a nuclear weapon? The answer is probably yes, because the courts would probably hold that no reasonable person would not consider this search to be unreasonable.

But most situations are not nearly that clear. So the question is: Who gets to decide the issue of reasonableness, in these less clear situations, the President, the Congress or the Courts? Traditionally the Courts get to decide what reasonableness means and the courts get to interpret the Constitution, not the Congress or the President.

What the conservatives should consider is this: "Would you want President Hillary Clinton deciding whether a search of your house was reasonable or would you want the Courts to make that call?

And the Supreme Court in the Berger and Katz cases stated that in the case of domestic "national security" surveillance, warrants are more liklely necessary than in ordinary criminal cases, because the threat of using national security to use surveillance on political opponents is very real. Why these appellate cases, pointed out above, ignored these Supreme Court rulings should give us all pause.

One more point. Someone suggested above that since the President gets do decide when to use military force, he should get to decide when to wiretap without a warrant. Should he also get to order US residents to quarter soldiers in their homes (in violation of the third amendement) as part of his war powers? Fat chance of getting that to fly.

Posted by davidgmills at December 29, 2005 10:55 AM

Perhaps I haven't stated my reasoning clearly enough, Mike. It seems to be getting past you. Let me try again.

The AUMF, at the very most, was a declaration of war. It was possibly less than that, but certainly not more than that.

FISA has specific language which expands the president's warrantless domestic surveillance powers somewhat during war, giving him time to seek changes to the law.

Nothing in the AUMF overturns these provisions. It would have to specifically address warrantless domestic surveillance in order to do so.

The administration sought such language in the AUMF and were told no.

The Attorney General has stated that the administration considered seeking changes to FISA during the fifteen day period and decided that Congress would decline to pass such changes.

Knowing that the law was not on their side, they chose to perform warrantless domestic surveillance despite the law, and to keep it secret.

And if the administration read the law so differently, and decided it had the power to do as it pleased on the matter of warrantless domestic surveillance, then it should have litigated it in court.

FISA was not modified by the AUMF.

As for your other points, I think you've misunderstood how penumbras were invoked in Roe v. Wade. The basic concept is that a right to privacy, inferred from the 2nd, 3rd, fourth, 5th, and 9th amendments, is a fundamental civil right, and the Fourteenth makes it clear that the states individually can't abridge a right of the citizens of the US as a whole.

This is very different from a president saying "I think there's a penumbra here so never mind about the law." In Roe, a court said, "This is a civil right here, and these laws are invalid because they violate it." A court gets to say what the law is. A president doesn't.

On the subject of the recent nebulous repealing the previous specific law, that isn't how it works. Consider the 21st Amendment repealing the 18th. The language of both is equally specific. The latter act names the former, and specifically identifies which of its provisions are being repealed. It certainly doesn't relieve the president of his obligation to advance this novel reading of a later non-specific statute in a courtroom.

Law is all about precision, and unless specifically (not inferentially) relieved of its obligations by court or Congress, the president must follow the law.

Posted by Jane Bernstein at December 29, 2005 10:56 AM

Clairtification on the search of the bulding. I meant a warrantless search.

Posted by davidgmills at December 29, 2005 10:58 AM

Jane, I'm not saying that your not a good doctor, but if you understand the law this well, and care to research it this much, maybe you missed your calling.

Posted by davidgmills at December 29, 2005 11:04 AM

"One more point. Someone suggested above that since the President gets do decide when to use military force, he should get to decide when to wiretap without a warrant. Should he also get to order US residents to quarter soldiers in their homes (in violation of the third amendement) as part of his war powers? Fat chance of getting that to fly."

Not I, I suggested that he has the power to survel foreign enemy combatants operating from within the CONUS.

"The basic concept is that a right to privacy, inferred from the 2nd, 3rd, fourth, 5th, and 9th amendments, is a fundamental civil right, and the Fourteenth makes it clear that the states individually can't abridge a right of the citizens of the US as a whole."

Please explain where any penumbra of the right to privacy is implied within the second amendment and how that bars state actions. Somehow the second amendment permits the right ot an abortion and yet allows states to prohibit the possesion of certain classes of firerams with direct appliciablility to a well regulated militia as inferred was the litmus by the verdict in US vs. Miller. That I cannot wait to hear.

"FISA was not modified by the AUMF."

"All necessary force." Clearly implicit within that is the knowledge of whom to apply that force.

Posted by at December 29, 2005 11:40 AM

Mike (assuming the last post was yours - excuse me if I inferred that incorrectly), you missed an important word in the AUMF: "Appropriate." I've tried to make this point above but let me try again. "Necessary and Appropriate" means in accordance with the law - he can only adopt means to carry out his authorized force that do not conflict with the letter of other provisions of law. I think I might have read an attribution of that observation to Justice Thomas someplace actually, but I might be mistaken.

The president's unenumerated, implied authority, according to the AUMF, is constrained by already enumerated, explicit statutes limiting it.

You raised a point regarding privacy as a penumbra of the second amendment. What I meant in that context was that the ownership of weapons in your home has an element of privacy to it. Of course this sort of thing can be "well-regulated" in the eighteenth century sense: "put into good working order" or, "have rules made for the operation thereof." I think it's a digression to get into second amendment issues, and it wasn't my intention to do so, just to make the point that privacy is involved in several amendments besides the fourth one. That's pretty much all I meant by that.

I also think it would be perfectly fair to advance the argument that warrantless domestic surveillance doesn't violate the fourth amendment. In time of war, the boundaries of "reasonable" searches are necessarily broader than in peacetime. I probably agree with that argument. My concern is not that warrantless domestic surveillance violates the fourth Amendment, it's that it violates FISA.

Posted by Jane Bernstein at December 29, 2005 04:33 PM

"Mike (assuming the last post was yours - excuse me if I inferred that incorrectly), you missed an important word in the AUMF: "Appropriate." "

I don't know why you persist in this discussion. Every time Mike loses an argument on a specific point of law, he changes his argument, (something you noted when you wrote: "you have shifted the focus of your argument from "FISA is unconstitutional" to "FISA doesn't apply" and now to "The AUMF (had to look that one up - Authorization of the Use of Military Force) modifies FISA.""). Eventually he resorted to lifting quotes off of blogs to try and support his views and then quoting comic books. He's clearly run out of arguments.

Anyway, Ms. Bernstein, thank you for an informative discussion.

Posted by Tim Barnes at December 29, 2005 05:55 PM

Tim, I don't concede that I have lost the argument. Your position is not relevant in that regard. This is a blog, not a poll. There is no rule that every facet of the debate must be discussed in every reply. As I said earlier, I only need to establish one point to win the debate, you must defend all four facets or your position collapses.

Perhaps this will further enlightne ths discussion vis-a-vi FISA and AUMF and the 4 th issues and war powers issues. While one can discuss individual varying points, it is not possible to divorce the issues.

http://uchicagolaw.typepad.com/faculty/2005/12/presidential_wi_1.html

"Presidential Wiretapping: Disaggregating the Issues

The legal questions raised by President Bush's wiretapping seem to me complex, not simple. Here is a rough guide: (1) Did the AUMF authorize his action? (2) If not, does the Constitution give the President inherent authority to do what he did? (3) If the answer to (1) or (2) is yes, does his action violate the Foreign Intelligence Surveillance Act (FISA)? (4) If the answer to (3) is yes, is FISA constitutional, or is it inconsistent with the President's inherent authority? (5) If the answer to (1) or (2) is yes, does the wiretapping nonetheless violate the Fourth Amendment?

I have already suggested that it is plausible to give a "yes" answer to (1), certainly if we do not consider the effect of FISA. It needn't be conclusive that Congress didn't "intend," with the AUMF, to authorize wiretapping. Once the AUMF is in place, the President can certainly engage in surveillance of some kinds, eg, surveillance of Al Qaeda in Afghanistan. It isn't a big stretch to say that he can engage in surveillance of people with known Al Qaeda affiliations who are calling to or from the United States. (If Osama Bin Laden is calling New York, it's clear, I think, that the AUMF allows the President to listen to the call.) If there were doubt about the President's power under the AUMF, a plausible claim of inherent power, under (2), would justify reading the AUMF to allow the President to engage in surveillance. (Of course nothing I have said suggests that under the AUMF, the President can engage in surveillance of people without a tie to organizations or nations associated with the attacks of 9/11.)

What about (2)? The Supreme Court has not decided this question, and some lower courts seem to have ruled in the President's favor on this one. Orin Kerr, at the Volokh Conspiracy, has an excellent post that covers this issue (and others I am discussing here). It is not clear that the President is right on (2), but it isn't clear that he is wrong.

On (3), the question is how to square the AUMF with FISI. It isn't unreasonable to say that the more specific statute, FISA, trumps the more general, so that the wiretapping issue is effectively governed by FISI. But if surveillance is taken to be an ordinary incident of war, and if the President has a plausible claim to inherent authority, this argument is substantially weakened. Note that the President isn't forbidden, by the precedents, from arguing that FISI is unconstitututional insofar as it forbids him from engaging in the relevant activity (item (4) in my catalogue). I am not sure how strong this argument is; if it is pretty strong, there is good reason to read the AUMF to allow the President to wiretap, and not to read FISI so as to forbid wiretapping, simply to avoid the hard constitutional question.

What about the Fourth Amendment? It turns out that the President has a plausible claim here as well (again see Orin Kerr's post for helpful discussion) -- not necessarily decisive, but plausible. The cases do not clearly support the view that when monitoring (a) an international call involving (b) someone with an Al Qaeda connection (c) to or from the United States, the President must, (d) under post-9/11 conditions, obtain a warrant. (The AUMF is helpful to the President here.) But to the extent that the Fourth Amendment claim is strong, there is reason to interpret the AUMF narrowly, so as to avoid that question, and also to interpret FISI broadly, also to avoid the Fourth Amendment question. On the other hand, the President's claim of inherent authority, if plausible, raises doubts about this approach.

This is meant as an exceedingly tentative analysis, with the purposes of disaggregating the issues and of suggesting that there are several unresolved questions here."

Posted by Mike Puckett at December 29, 2005 08:02 PM

Dammnit! Rand beat me to it!

Posted by Mike Puckett at December 29, 2005 08:27 PM

Ms. Bernstein,

I enjoyed the thoroughness of your arguments and the ability to convey your logic succinctly. In particular, your thoughtful, considered responses even to churlish queries was indeed commendable.

Mike, perhaps if you read this blog a few days from now, you might also appreciate the apparent logic of Ms. Bernstein's arguments. In the meanwhile, you can check the following link:

http://www.holysmoke.org/sdhok/argue.htm

Karikalan

Posted by Karikalan at December 29, 2005 10:08 PM

"Tim, I don't concede that I have lost the argument. Your position is not relevant in that regard."

That's okay. You don't need to concede anything. Continue quoting Batman cartoons while Ms. Bernstein quotes the Constitution. It's amusing.

Posted by Tim Barnes at December 29, 2005 10:11 PM

I apologize for weighing in the middle of this discussion but I feel a need to do so. I keep reading about how the President has a "right" to do what he feels necessary to protect the USA according to Article II of the Constitution. Yet nowhere in the Constitution does it come close to saying this. The only parts of Article II that appear relevant are;

"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"

and

"he shall take Care that the Laws be faithfully executed"

Nor does the C-in-C role allow him to circumvent the law. Even as head of the armed forces it is up to Congress to, according to Article I,

"To make Rules for the Government and Regulation of the land and naval Forces"

After thoroughly reading the Constitution I can't see how anyone can interpret this to mean the President can do anything he damn well pleases as long as he says it is for the "defense" of the USA.

Posted by Kevin Miller at December 30, 2005 02:34 AM

What 3 Supreme Court Justices Had To Say About Presidential Warrantless Wiretaps

The year was 1967. The case was KATZ v. UNITED STATES, 389 U.S. 347 (1967)

The issue was not about whether the President had the authority to wiretap without a warrant. One justice didn't care; he was going to wax eloquently about the issue anyway. Two other justices were not about to let him get away with it.

.................................................

Footnote 23 makes it clear this is not an issue in the case.

[ Footnote 23 ] Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.
.................................................

But Justice White, (watch the segue here), finds a way to address it anyway.

MR. JUSTICE WHITE, concurring
In this connection, in footnote 23 the Court points out that today's decision does not reach national security cases. Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. See Berger v. New York, 388 U.S. 41, 112 -118 (1967) (WHITE, J., [389 U.S. 347, 364] dissenting). We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.
............................................

Not about to let this stand unchallenged, Justice Douglas, joined by Justice Brennan had this to say:

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN joins, concurring.
While I join the opinion of the Court, I feel compelled to reply to the separate concurring opinion of my Brother WHITE, which I view as a wholly unwarranted green light for the Executive Branch to resort to electronic eaves-dropping without a warrant in cases which the Executive Branch itself labels "national security" matters.
Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved they are not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate [389 U.S. 347, 360] and prevent breaches of national security and prosecute those who violate the pertinent federal laws. The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate.

.......................

So now you know how we got here.

Posted by davidg at December 30, 2005 07:24 AM

Davidg, I think the sort of disagreement over these powers you refer to in your post above is precisely the sort of thing FISA was supposed to clarify, but I'm not sure where to find the legislative history of what Congress was thinking when they passed it, eleven years after the case you cite.

Posted by Jane Bernstein at December 30, 2005 09:26 AM

"That's okay. You don't need to concede anything. Continue quoting Batman cartoons while Ms. Bernstein quotes the Constitution. It's amusing."

I can do both as I have done within this thread. Do you have anything of actual value to add Tim or are you just going to stay up in the cheerleading section and throw snarky quips around as you have been doing all along?

Posted by Mike Puckett at December 30, 2005 04:21 PM

Why does Tim have to say anything when you already make enough of a fool of yourself? And Jane seems to be upstaging you enough that there's no need for the rest of us to really say anything.

Once again Jane, I'd like to repeat everyone else's congratulations on some rather logical, quick and calm debating.

And I would just like to pose a few questions.

Is safety or freedom more important, ie do we still, as an American people believe in Patrick Henry's famous "Give me liberty or give me death" or are we willing to submit ourselves to a big brother type state in order to live a life relatively 'free' of 'terrorism'?

Mike, you've talked quite a bit about how everything you've mentioned, both the AUMF and FISA as well as the Constitution should give the C in C the power and authority to wiretap against Al Quaeda operatives. Can you prove to me that there's any link between Al Quaeda and PETA, or any of the other numerous American domestic ngos and npos?

Posted by Vinh Hua at December 30, 2005 08:17 PM

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