Sunday, March 19, 2006

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.


Anonymous said...

I bet I'd be 100% convinced if only I understood 50% of what I just read. ;)

Anonymous said...

Elliot - Sometimes he talks like that too including all of the citations. :)

Rick Esenberg said...

She likes it when I talk like that.

Think of it like the OJ case. I'm thinking the jury didn't know what was going on but figured that if it took 9 months to explain it that there has to be reasonable doubt in there somewhere.

If people can go back and forth like this on the NSA program, then, at worst, it is unclear whether it is legal or not. And Presidents don't get censured for exercising their power in a legally defensible way. Even if the courts ultimately go the other way.

Seth Zlotocha said...


All of the cases you cite, except the Duggan decision and the FISA Court of Appeals opinion, took place before FISA.

This is important. As the quote from the Duggan decision you cite makes clear, FISA involves a transition in the president's surveillance authority. And the FISA Court of Appeals opinion dealt primarily with surveillance of a foreign power or agent, not specifically US citizens.

According to a non-partisan Congressional Research Service report on the issue from January 2006:

"From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of “electronic surveillance” within the meaning of FISA or any activity regulated under Title III, Congress intended to cover the entire field with these statutes. To the extent that the NSA activity is not permitted by some reading of Title III or FISA, it may represent an exercise of presidential power at its lowest ebb, in which case exclusive presidential control is sustainable only by “disabling Congress from acting upon the subject.” 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."

So it's clear the courts would uphold the constitutionality of FISA because Congress has the right to regulate domestic surveillance. If that's the case and it's obvious Bush violated FISA, I'm not sure what legal ground the White House has left to stand on.

As for your point about other presidents using warrant surveillance, all of that also took place prior to FISA. In terms of Clinton, all the article you link to does is note that the deputy attorney general for Clinton testified in 1994 that previous cases have supported the president's authority to conduct warrantless surveillance for foreign intelligence purposes. This hardly constitutes the Clinton administration approving of, let alone engaging in, warrantless domestic wiretapping of US citizens.

Seth Zlotocha said...

Just one more quick comment on the following: "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."

Yes he does. It's inherent in his assertion that Congress did not in the least intend for the authorization to use military force after Sept. 11 to mean warrantless wiretapping of US citizens.

Even Arlen Specter has said that to argue it does "defies logic and plain English." And other Republican legislators like Lindsey Graham agree.

Crazy Politico said...

Seth, reading the above court quotes, the one from the second sticks out..
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.
(the bold is mine)

Note the words Inherent power, which would mean power derived from Article II of the Constitution. Last time I checked (and Rick the Law prof can help here) the Constitution trumps laws congress passes.

Seth Zlotocha said...

The Duggan case was a situation where the defendants Andrew Duggan, Eamon Meehan, Gabriel Megahey, and Colm Meehan were appealing their conviction for illegally transporting explosives.

They were arrested based upon information gained through FISA-ordered wiretap. The basis of the appeal was their argument that FISA was unconstitutional because it violated the 4th Amendment.

The Court of Appeals responded to this argument bluntly: "We find no merit in these contentions."

It continued: "We regard the procedures fashioned in FISA as a constitutionally adequate balancing of the individual's Fourth Amendment rights against the nation's need to obtain foreign intelligence information."

So when the Duggan decision uses the term "warrant," it means something different than a FISA court order. FISA in itself allows the executive branch to bypass getting a formal warrant. FISA was established to settle the concern between the 4th Amendment requirement of a formal warrant based upon probable cause and the president's inherent authority to gather foreign intelligence information.

What President Bush did was engage in both warrantless and "FISA-less" surveillance. He ignored it all.

After reading the Duggan decision for myself, I'm wondering why Rick chose to contextualize the single sentence he quotes from the decision in such a way that makes his readers think the term "warrantless" refers to bypassing FISA, when in fact FISA was established for the very purpose of giving the president an avenue for engaging in warrantless surveillance.

Terrence Berres said...

"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."

Russ Feingold, Originalist?

Crazy Politico said...

Seth, who's arguing the 4th amendment applicability of FISA (other than you)?

The president's (an my) contention is that Article II of the Constitution gives him the "inherent power" to conduct the surveillance, which is a completely different, and to date, untested (by the courts) theory.

My guess (Rick, chime in) would be Rick chose that passage because of the "inherent power" clause that it quotes, and goes to the heart of the issue, not the 4th Amendment, but Article II.

Seth Zlotocha said...

I was discussing the overall constitutionality of FISA--that was my point in bringing up the context of the Duggan decision (which Rick failed to mention).

So you think the Executive Branch should have sole authority to wiretap whomever it wants as long as it can justify to itself (see the problem there?) the surveillance is for foreign intelligence purposes?

Thankfully, the courts have long upheld the notion of a balance of powers, and they have proven that by repeatedly limiting the authority of the president as commander-in-chief.

Just to provide a few examples:

1. Youngstown Sheet & Tube Co. v. Sawyer (1952): Rejected the notion that the president had the exclusive power as commander-in-chief to seize private property for materials the executive branch deemed necessary during the Korean War; the court held instead that the president only has that authority if explicitly authorized by Congress.

2. Rasul v. Bush (2004): Gave the courts authority to determine whether foreign nationals held at Guantanamo Bay were justifiably imprisoned, thereby rejecting the Bush Administration's argument that it alone had this exclusive authority under Article II.

3. Hamdi v. Rumsfeld (2004): The Supreme Court rejected the Bush Administration's argument--which it held based on Article II--that the courts may not inquire into the factual basis for detaining a US citizen as an enemy combatant.

In all of these Supreme Court cases, the courts have held that the other two branches of government may limit the inherent Article II rights of the president as commander-in-chief. This wiretapping case is no different.

Just because Congress never made a law regulating the president's authority to conduct warrantless wiretapping for foreign intelligence prior to 1978, doesn't mean Congress doesn't maintain the power to do so--nor does it mean FISA violates the president's inherent powers under Article II.

FISA is constitutional, any way you want to try to slice it.

As Justice O'Connor explained for the majority in the Hamdi decision, "Whatever power the United States Constitution envisions for the executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

Crazy Politico said...

No, I don't believe the executive should be able to wire tap anyone anytime.

However, in matters of national security, and defense of the nation the Constitution is quite clear on who the Commander in Chief is, and it's not the junior Senator from Wisconsin, or any state.

If Feingold or Durbin believe that it's beyond what Article II authorizes, find a suitable case, and get it into court, and figure it out.

As Russ mentioned, we have 3 separate branches for a reason. And the Senator isn't in the one that decides Constitutionality or legality of actions.

I'll quote the President from his press conference today:

I did notice that nobody from the Democratic Party has actually stood up and called for the getting rid of the terrorist surveillance program. You know, if that's what they believe, if people in the party believe that, then they ought to stand up and say it. They ought to stand up and say, "The tools we're using to protect the American people shouldn't be used." They ought to take their message to the people and say, "Vote for me. I promise we're not going to have a terrorist surveillance program."

I'm quite sure Feingold won't take him up on the offer.

Seth Zlotocha said...
This comment has been removed by a blog administrator.
Seth Zlotocha said...

Nobody has called to end the surveillance program because nobody wants to end it. That's a false question.

There are a whole bunch of laws that regulate activities such as driving and smoking, to provide two simplistic examples. Just because someone wants those regulatory laws enforced, doesn't mean they want to do away completely with the activities they regulate.

The expectation is that the president follows the established law governing foreign intelligence surveillance, which happens to be FISA.

If the executive branch feels it can't operate properly under the law, then it should ask Congress to amend it--which, actually, it did less than five years ago (and only months before the secret NSA wiretapping program began) under the Patriot Act. But apparently that wasn't good enough for the White House, even though it got everything it asked for in the 2001 Act.

If the White House feels the law is unconstitutional, it's up to it to present a case explaining why. Until a court finds the law unconstitutional, the Executive Branch must abide by it--just like you and me with laws that regulate our constitutional rights. The White House is not above the law.

If you don't believe the Executive Branch should have exclusive authority to determine solely on its own who it wiretaps for foreign intelligence information, then how can you possibly support the president's secret NSA wiretapping program that blatantly disregards oversight from the court specifically established under law by Congress to regulate foreign intelligence surveillance?

Crazy Politico said...

Actually, Seth, if you read in Re:sealed case 02-001, you find that FISA was attempted, and (according to their review court) misapplied the Patriot Act revisions, several areas of previously decided law, and based most of their decisions to deny on the Clinton era rules that the PA rewrote into law.
here is a link to the case

It also reaffirms that the president, in areas concerning national security has an inherent right to conduct warrantless wire taps. (though that wasn't the jist of the case).

As to why not try to amend FISA again, it's actually pretty easy.

Taking it to congress again would immediately show what was being done, since it would be a matter of public record (and CSPAN broadcast). Why would you publically show your hand to those you are trying to catch?

Also, if Leahy and Feinstein were as uncomfortable with the briefings they were getting on the program in 2002-2005 as they now claim, they could have done something. Yet they didn't. They didn't look for more information from the AG, they didn't try to find out what was going on with the FISA court, etc.

But when the program became public, suddenly they expressed their reservations from the previous 3 years.

That is not leadership, that's playing politics.

Seth Zlotocha said...

The Sealed case deals with extra regulations placed upon the executive branch by the FISA court after the passage of the Patriot Act. This has absolutely nothing to do with the secret NSA wiretapping program.

The problem with the NSA program is that it ignored FISA completely. There isn't one place in the Sealed decision that gives the executive branch the authority to completely ignore FISA.

Here’s the important line from Sealed:

“The court’s decision from which the government appeals imposed certain requirements and limitations accompanying an order authorizing electronic surveillance of an ‘agent of a foreign power’ as defined in FISA. There is no disagreement between the government and the FISA court as to the propriety of the electronic surveillance; the court found that the government had shown probable cause to believe that the target is an agent of a foreign power and otherwise met the basic requirements of FISA.”

In other words, in the case that brought about Sealed, the government went through the proper procedures of attaining a FISA-order for the surveillance it wanted to conduct. No one was arguing that—not even the government. The appeal was about additional regulations placed on the executive branch by the FISA court in light of the Patriot Act.

As for Sealed supposedly reaffirming the inherent right of the president to undertake warrantless surveillance whenever it deals with foreign intelligence, conservatives really need to read the entire Sealed case. The one line conservatives are fond of quoting, which Rick does in this post, is the following: “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.”

The problem with this, of course, is that the Truong case took place pre-FISA, as the Sealed decision reiterates continuously (somehow, though, the conservative commentators missed them all). It goes on to write this about Truong:

“The Court in Keith had, indeed, balanced the government’s interest against individual privacy interests, which is undoubtedly the key to this issue as well; but we think the Truong court misconceived the government’s interest and, moreover, did not draw a more appropriate distinction that Keith at least suggested. That is the line drawn in the original FISA statute itself between ordinary crimes and foreign intelligence crimes.”

As the court concluded: “We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable.”

The problem with the NSA program ordered by Bush is that it completely ignored FISA, refusing to go to it for authorization to conduct surveillance. There is absolutely no justification for this in Sealed or any other court case since FISA was enacted.

Nice try at the end to blame this on Democrats, but the White House is the one who broke the law in this situation. Fortunately for it, I suppose, it's party has control of Congress and is happy to sweep the issue under the carpet.