Sunday, March 19, 2006

Fisking Folkbum

Jay Bullock responds to my op-ed on the censure resolution. I am sure he will be shocked to know that I am not convinced.

Jay, begins by suggesting that I am somehow wrong in suggesting that Feingold's reference to the NSA surveillance as "domestic" is oversimplification because "one of the parties" is in the US.

There is, as the cases that I refer to in my previous point demonstrate, a longstanding distinction between domestic surveillance and surveillance of foreign and international communications for the purpose of gathering foreign intelligence and protecting the national security. (Thus my crack about WWII movies; something Jay dismisses because it suggests how problematic Feingold's position is.)

To merely call this "domestic" suggests that we are in the former territory; that Bush could be listening to your phone calls to Aunt Emma in Peoria. That is misleading and inflammatory. It is demagoguery.

Note I did not call it overseas surveillance either which, on Jay's logic, would be just as fair because one of the parties is overseas.

I call it what it is. It is surveillance of communications between persons in the US and persons overseas.

Jay doesn't like the argument from AUMF and Hamdi either. First, he can't find FISA's exception.

This is the old "AUMF" overrides FISA. First of all, I did a search of the FISA statute, and did not find the phrase Rick quotes. I'm not saying it's not there; I just couldn't find it with my eyes or the search tools I have available to me.

In fairness, I paraphrased and should probably have not used quotations on the whole phrase, but 50 U.S.C. sec. 1809(a)(1) makes it unlawful to engage in surveillance under color of law not "authorized by statute." The question is whether the AUMF constitutes such an authorization.

Jay says it's not. He writes:

This is a bit of spin, too, as the government actually lost that case--the majority opinion held that the US had to follow constitutional guidelines regarding the detention of US citizens captured in war. In addition, the AUMF explicitly states that the president's war powers, under the War Powers Resolution, are in force; however, "even the war power does not remove constitutional limitations safeguarding essential liberties," the Hamdi court noted. I'm pretty sure the Constitution says something about "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

Well, of course activity authorized by Congress is still subject to constitutional limitations. The point, as I explained in the op-ed, is not whether the government won or lost Hamdi, but the fact that a majority thought that you interpret the AUMF by asking what are the traditional incidents of waging war and then concluding that those are what was authorized. Now, if Jay - or Russ - want to argue that monitoring communications between the the enemy and its domestic agents is not such a traditional incident, knock yourselves out.

It doesn't matter by the way what individual legislators intended or even what the administration thought and when they thought it. If the language is broad enough - and Hamdi suggests it is - then the language is broad enough. It is the words that matter.

Now, and here is where you must follow closely, the fact that Bush has the statutory authority doesn't mean that he has exercisd it constitutionally. In Hamdi, while a majority thought the detentions were authorized, a majority thought they had been conducted in a way that violated applicable constitutional safeguards.

But that doesn't mean that the NSA program, if authorized, would also violate the constitution. Jay would argue that the surveillance even if authorized violates the Fourth Amendment. He would almost certainly lose that argument because, as referenced in my prior post, most courts have thought that there is a national security/foreign intelligence exception to the warrant clause.

Then Jay cites a different statute. 18 U.S.C. 2511(2)(f), that says the procedures of FISA are the exclusive means of conducting electronic surveillance as that term is defined in FISA and suggests that this resolves all of this. But of course it doesn't. If 1809(a)(1) - which is part of FISA - excepts surveillance authorized by statute from FISA's requirements then 2511(2)(f), which simply refers to FISA, can't
prohibit what FISA permits.

(As an aside, and I'm not going to get into it here because I'm not sure it works in the end, the NSA program may not even constitute "electronic surveillance" as that term is defined in FISA since, if it is not wiretapping, it requires the targeting of a United States person sending or receiving a communication in which he or she has an expectation of privacy. United States person is a defined term that excludes any person engaged, among other things, in clandestine activities or terrorism on behalf of a foreign power. So depending on how they captured a communication or who was involved, it might not even fall within the Act's prohibition. But this is serious inside baseball.)

As to the constitutionality of any limits on FISA, Jay says the government had 25 years to challenge it. Not so simple. Courts require a case or controversy. As a general matter, the goverment can't run into court and say that a law is unconstitutional anymore than Jay Bullock and Rick Esenberg can. That a statute has gone unchallenged may reflect the fact that there has been no justiciable circumstance in which any of the affected parties had a motivation to go to court.

Jay keeps swinging, arguing that Bush didn't adequately inform Congress. I don't know. I do know that, under the law, the AG was supposed to brief the House and Senate Intelligence Committees. That happened, although I guess Jay is right - Jay Rockefeller doesn't think he understood what was going on. The fact of the matter remains that there are people in Congress who know more about this than the public does and they are proposing that we censure the President or cut off NSA funding. There is an effort to change the statutory framework. But Feingold won't go for that, because it's not about Russ.

That I don't know exactly what the NSA is doing is a necessary incident of war in a world which has evil people. If hard left Dems think we can fight terrorism by having a public discussion of the specifics of counter-terrorism measures, then thank God they are not in power. To some extent, we have to rely on the President and limited Congressional oversight and the due process rights afforded American citizens, (if there are any), who are harmed by this.

Jay then thinks that Feingold's "Bush lied" paragraphs constitute some kind of powerful argument. His references to the State of Union address seems to constitute nothing more than Bush's refusal to agree with Russ that FISA gives him the authority that he needs and that he is limited by its terms. That is a difference of opinion; not a lie.

The notion that Bush lied when he made a campaign statement in Buffalo is silly. It was a political speech not a law review article. What he says is - and remains true -for purely domestic communications. That he didn't stop and say - well, it's not true for a tiny subset of international communications does not offend me.

Censure is not an appropriate way to express policy differences.


Jay Bullock said...

Your fancy-schmancy lawyer talk doesn't scare me . . .

However, it is important to note that people from all sides of the issue have conceded that the president's actions violate FISA. His limited briefings also violated the law saying he has to fully inform the intelligence committees. Alberto Gonzales obfuscated so bad in front of the senate that he needed to "clarify" himself a couple of weeks ago, And Bush is truculently resistant to any kind of oversight, checks and balances, or full investigation into what is going on.

This is not the behavior of a man concerned about serving his country; it is the behavior of a man concerned about serving himself. That's the point of censure--to tell Bush that he is not above the law or the Constitution's demands for divided government.

You seem intent on proving that the president is allowed to break the law if he wants to; I am intent on proving that he should not, and should not get off scot-free if he does so.

Jay Bullock said...

Also, in re: In re Sealed Case, I'm interested in what you think of this.

Rick Esenberg said...

Wouldn't want it to ....

I think we around on this once before, but if I say that FISA is an unconstitutional restriction on the President's Article II powers that does not mean I am saying that it is he is allowed to break the law (if the program violates its terms which I don't concede for reasons stated). It means that he didn't break it.

The Constitution is the supreme law of the land.

I can't see how Gonzales' clarification is important. Nor do I know that Bush resists any type of oversight. In fact, I think Al testified that they'd be happy to look at whatever Congress proposed.

As to that view of In re Sealed Cases, I think I said in my posts and in my op-ed and in a response to a comment by Seth and I'll say again now, that I don't think these cases definitively resolve the question.

They do pretty much suggest that the 4th Amendment is no bar to this type of surveillance but they don't address the FISA question directly.

However, the reaons that one would conclude that there is a national security exception to the warrant requirement are also powerful arguments that Congress can't restrict the President's inherent authority in the conduct of military affairs and national security.

And, for me, the bottom line becomes this: What you have is a difference of opinion betweeen the legisaltive and executive branch as to what the law requires. The President's position, even if you ultimately reject it, is reasonable.

In those circumstances, if you are Congress, maybe you go to court. Maybe you pass new legislation. You don't pass resolutions of censure.

Look Jay, even guys like Mark Dayton are disgusted with Russ.
This was a self-centered and, pardon the expression, bush league ploy.