Further fisking Feingold

While I think (but I am biased) that much of the weaknesses in Feingold's position can be discerned by reading his and my op-eds in yesterday's paper, here's a more detailed fisking of what he has to say.


Russ: When a New York Times article exposed the National Security Agency program, the White House launched an intensive effort to mislead the American people yet again. This time, the White House suggested that the program was necessary in order to wiretap terrorists.

Attorney General Gonzales has testified that the program is necessary to conduct the type of surveillance that following Al Quaida in today's technological world requires. As I point out, whether that is true or not depends on details that are not publicly available. But it's not an implausible suggestion. We live in a world where people can change cell phones and urls by the minute. Responding to that reality was one of the innovations of the Patriot Act (which Feingold also opposed). The notion that one can know "where" a target is (or precisely who a target is) and then establish probable cause may be defeated by technology. While we may want to stick to the old rules domestically, there is a long traditon of allowing more leeway where foreign agents are involved in international and transnational communications.

Russ: In this year's State of the Union address, the president implied that before he authorized the program, he couldn't have wiretapped terrorist suspects. That is simply untrue. Congress passed FISA in 1978 specifically to lay out the rules for wiretaps of terrorists and spies, and it has updated that law repeatedly since. FISA includes safeguards, which the president is ignoring, to protect the rights and freedoms of law-abiding Americans.

See above.

Russ: He [Bush] has said that the Authorization for Use of Military Force signed into law after Sept. 11 authorized warrantless wiretaps, when virtually every member of Congress agrees they intended no such thing.

I do not believe that virtually every member of Congress has said that they believe the AUMF cannot be interpreted to apply to the NSA program. In any event, what legislation means is determined not by what those who passed it said they meant but by what it actually says. Whether or not the President has acted without regard for the law turns on whether he has ignored the law and the manner in which the courts have interpreted it. Feingold doesn't even begin to address why Hamdi v. Rumsfeld doesn't more or less resolve the issue in the president's favor, much less make what he has done a good faith interpretation of the law. Yeah, I know that this legal stuff is boring, but we are talking about censuring a president here. I thought our heroic maverick was all about substance and not soundbites.

Russ: And he has said that past presidents have used the same authority and that federal courts have approved the exercise of that authority, when neither is true.

Let's start with the court decisions. Seth Zlochota asked for links to the cases I referred to in my op-ed. You inguire and Shark provides:

First, from SCOTUS:

Katz v. United States, 389 U.S. 347 (1967). Katz held that in an ordinary criminal prosecution (subject to many exceptions)a warrant is required for wiretap information to be admissible in court. The Court specifically noted, however, that its decision did not apply to situations involving national security:

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.

In his concurrence, Justice White made clear that he felt that the President would not need a warrant for national security surveillance:

In joining the Court's opinion, I note the Court's acknowledgment that there are circumstances in which it is reasonable to search without a warrant. 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.

United States v. United States District Court, 407 U.S. 297 (1972). One of the defendants was charged with dynamiting a Michigan office of the C.I.A. The Court's held that warrants were required for wholly domestic surveillance in matters of domestic security. As I stated in my op-ed, the Court expressly stated that it was reserving the question of the president's surveillance authority with respect to tha actions of foreign powers in this country and abroad.

How about the lower courts? (I don't have readily available links to the older ones. You can't use my Westlaw account.)

United States v. Clay, 430 F.2d 165 (5th Cir. 1970). In the course of its opinion rejecting the Greatest of All Time's claim that his conviction was based on information obtained from illegal wiretaps, the court wrote:

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.

Strictly speaking, this case (like those which follow) addresses the limitation of the 4th Amendment, not Congress, on the president's power but, when it comes to the gathering of foreign intelligence for national security purposes), the rationale underlying the former is reasiliy applicable to the latter.

United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974). 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.”


United States v. Truong Dihn Hung, 629 F.2d 908 (4th Cir. 1980)

In upholding warrantless wiretapping conducted by the Carter administration which resulted in evidence leading to the conviction of the defendant for espionage, the court noted:

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

Truong did not hold that FISA was an unconstitutional restriction on the President's power (that issue was not before it because the wiretapping took place before FISA was enacted), but it's rationale suggests that it might be.

United States v. Buck, 548 F.2d 871 (9th Cir. 1977) was a firearms prosecution. In the course of it's decsion, the court snoted that "foreign security wiretaps are a recognized exception to the general warrant requirement…."

United States v. Duggan, 743 F.2d 59 (2d Cir. 1984), in which the court said:

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, the FISA Court of Review (it sits over the FISA tribunals that hand out warrants) in a case called In re Sealed Cases, said:

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.

Do these cases definitively resolve the issue. No, they don't. But they do suggest that the President's interpretation of his constitutional authority is reasonable and certainly does not constitute the type of criminality and wholesale disregard of the law that would warrant censure.

How about other Presidents:


Oh gee, there's Wilson in WWI; Roosevelt in WWII. If that's too old schoo foy you, how about the sanctimonious Jimmy Carter (see Truong and the Clinton Justice Department, Details are here.


I am reminded of John Randolph's observation that Edward Livington was like a mackerel in the moonlight that "both shines and stinks."

I see Jay Bullock has some comments. I'll respond to those later.