Domestic Spying and the Catch-22
The other day the New York Times revealed that--following 9/11--the Bush administration implemented a top secret program which authorized the National Security Agency (NSA) to eavesdrop on communications involving U.S. citizens without securing a warrant. The story has sparked a significant controversy over the legality of the President's actions.
When the story first broke, a number of conservative blogs leapt to the administration's defense, arguing that the this type of warrantless surveillance did not run afoul of the Foreign Intelligence Surveillance Act (FISA), the law that governs surveillance of this kind. Glenn Greenwald quickly and definitively put this notion to rest. Indeed this argument is so specious that even the Bush Administration (via the Attorney General) conceded yesterday that the program violates FISA.
So how does the administration justify ordering the NSA to ignore FISA? Well, as Marty Lederman explains, the administration is relying on two rather creative arguments. The first is that Congress impliedly repealed FISA in 2001 when it authorized the President to take "necessary and proper force" to combat those responsible for the 9/11 attacks. As Lederman points out, this argument "doesn't pass the laugh test." I'd hate to be the Justice Department lawyer forced to argue to a judge that the vague language of the 2001 Congressional authorization of force was intended to repeal a long-standing and incredibly detailed statutory scheme governing the use of electronic surveillance. That's an incredibly weak argument, especially in light of the fact that FISA itself has provisions that specifically lay out what procedures are to be followed in a time of war.
The second argument is less ridiculous, but more radical. The Attorney General, in Lederman's words, is claiming that "the President has the constitutional power, under the Commander-in-Chief Clause, to ignore FISA's prohibition in this context." In other words, the President has the inherent constitutional authority to disregard the law in times of war. My initial reaction is that this theory--at least in this extreme form--is both novel and dangerous. At the very least it is a maximalist interpretation of the president's war powers (especially considering war has never been officially declared).
The irony here, as Lederman pointed out yesterday and again today, is that under this interpretation of the president's power, the Patriot Act is rendered superfluous. If Article II of the Constitution really grants the president this sort of power, why even bother with the Patriot Act? President Bush, apparently not realizing how incoherent this position is, defended the wire-tapping program yesterday while at the same time lashing out at Congress for not renewing the Patriot Act. He chided his opponents for, of all things, suggesting that the Patriot Act "is no longer necessary."
As you've probably gathered by now, the administration's legal position on this matter strikes me as being surprisingly weak and remarkably audacious, even by the standards of this administration. This analysis, however, is based on what may be a rather incomplete picture of how this new surveillance program actually works. In other words, I'm open to the possibility that, if we knew all the relevant facts about this program, the legality of Bush's decision might be more ambiguous.
What do I mean? Well, there's some reason to believe that the surveillance program at issue is something novel, that it utilizes some sort of new technology or process that was not contemplated by FISA. Senator Bob Graham, who was briefed on the program, said: "I came out of the room with the full sense that we were dealing with a change in technology but not policy." And the 2003 letter released yesterday by Senator Jay Rockefeller is even more telling. In that letter, Rockefeller expressed his strong concerns about the oversight issues raised by the surveillance program, but he also wrote the following:
If Bush's surveillance program does indeed involve some sort of new technology or process, it might explain why the administration is so concerned about the implications of its disclosure. If there is nothing more than traditional wire-tapping at issue here, it's hard to see how national security interests are implicated by the disclosure. Surely terrorists are already aware that the government has the ability to intercept communications. Bypassing the warrant procedure doesn't change that basic fact.
But let's suppose, since we're speculating here anyway, that the surveillance program at issue involves some sort of technology or process which, if exposed, would diminish its effectiveness significantly. Let's also assume that this technology or process was not contemplated by FISA and, for practical reasons, is simply not compatible with the procedures outlined in that act. If so, then we have to consider the possibility that national security concerns are preventing the Bush administration from offering, at least publicly, their most robust defense of the legality of the program. In other words, they may be characterizing this program as involving traditional wire-tapping, something FISA was clearly designed to address, because offering a more accurate description of the program would compromise its effectiveness.
If this is the case, it would not necessary get the administration off the hook, but it might blur the issue somewhat. Imagine you are the president, and you are presented with a new process or technology that has the potential to dramatically improve the government's ability to locate terrorists within the United States and prevent future attacks. You're convinced that the program is constitutional, but, for practical reasons, the program simply cannot be implemented within the statutory framework established by Congress in FISA; the drafters of the 1972 statute just didn't have this sort of technology in mind. The obvious next step would be to go to Congress and lobby for FISA to be amended in a way that would allow this new program to be implemented. But what if you were convinced that there was no way to do this without exposing the technology and, in doing so, significantly undermining the effectiveness of the proposed program. In other words, securing explicit Congressional authorization would, in and of itself, have compromised the program. In that situation, the President would face a very difficult decision. *If* that is the situation that President Bush found himself in (and that's a BIG if), then the argument in support of his invocation of article II power would be more plausible than it first appears.
Clearly I'm well into the land of speculation here. It's important to keep in mind that--based on the public record--there is not yet any strong evidence that the program at issue involved anything more than traditional wiretapping techniques. If that's the case, then I think the President's decision to disregard the clear mandate of FISA is very hard to defend. My point in writing this post, however, is to suggest that there may be more to this story than meets the eye. Whether that missing part of the picture makes the administration's position more or less defensible is something we cannot know until we learn more about the program itself. But it may not be possible for us to learn more about the program without compromising the program. And therein lies the Catch-22.
UPDATE: I should have included this quote from Alberto Gonzalez in my original post:
That seems to be consistent with my speculation above. Also, read this post from Kevin Drum.
When the story first broke, a number of conservative blogs leapt to the administration's defense, arguing that the this type of warrantless surveillance did not run afoul of the Foreign Intelligence Surveillance Act (FISA), the law that governs surveillance of this kind. Glenn Greenwald quickly and definitively put this notion to rest. Indeed this argument is so specious that even the Bush Administration (via the Attorney General) conceded yesterday that the program violates FISA.
So how does the administration justify ordering the NSA to ignore FISA? Well, as Marty Lederman explains, the administration is relying on two rather creative arguments. The first is that Congress impliedly repealed FISA in 2001 when it authorized the President to take "necessary and proper force" to combat those responsible for the 9/11 attacks. As Lederman points out, this argument "doesn't pass the laugh test." I'd hate to be the Justice Department lawyer forced to argue to a judge that the vague language of the 2001 Congressional authorization of force was intended to repeal a long-standing and incredibly detailed statutory scheme governing the use of electronic surveillance. That's an incredibly weak argument, especially in light of the fact that FISA itself has provisions that specifically lay out what procedures are to be followed in a time of war.
The second argument is less ridiculous, but more radical. The Attorney General, in Lederman's words, is claiming that "the President has the constitutional power, under the Commander-in-Chief Clause, to ignore FISA's prohibition in this context." In other words, the President has the inherent constitutional authority to disregard the law in times of war. My initial reaction is that this theory--at least in this extreme form--is both novel and dangerous. At the very least it is a maximalist interpretation of the president's war powers (especially considering war has never been officially declared).
The irony here, as Lederman pointed out yesterday and again today, is that under this interpretation of the president's power, the Patriot Act is rendered superfluous. If Article II of the Constitution really grants the president this sort of power, why even bother with the Patriot Act? President Bush, apparently not realizing how incoherent this position is, defended the wire-tapping program yesterday while at the same time lashing out at Congress for not renewing the Patriot Act. He chided his opponents for, of all things, suggesting that the Patriot Act "is no longer necessary."
As you've probably gathered by now, the administration's legal position on this matter strikes me as being surprisingly weak and remarkably audacious, even by the standards of this administration. This analysis, however, is based on what may be a rather incomplete picture of how this new surveillance program actually works. In other words, I'm open to the possibility that, if we knew all the relevant facts about this program, the legality of Bush's decision might be more ambiguous.
What do I mean? Well, there's some reason to believe that the surveillance program at issue is something novel, that it utilizes some sort of new technology or process that was not contemplated by FISA. Senator Bob Graham, who was briefed on the program, said: "I came out of the room with the full sense that we were dealing with a change in technology but not policy." And the 2003 letter released yesterday by Senator Jay Rockefeller is even more telling. In that letter, Rockefeller expressed his strong concerns about the oversight issues raised by the surveillance program, but he also wrote the following:
As you know, I am neither a technician or anHe noted in the letter that the surveillance program reminded him of John Poindexter's TIA project. The TIA project (Total Information Awareness) was a data mining project designed to identify individuals of interest by sorting through massive amounts of raw data (email, phone calls, etc.). The project was never implemented (at least as far as we know) and Congress eliminated funding for it in 2003. For speculation about what the Bush surveillance program might be, see this post by Empty Wheel and this post by Noah Schactman.
attorney. Given the security restrictions
associated with this information, and my
inability to consult staff or counsel on my
own, I feel unable to fully evaluate, much
less endorse these activities.
If Bush's surveillance program does indeed involve some sort of new technology or process, it might explain why the administration is so concerned about the implications of its disclosure. If there is nothing more than traditional wire-tapping at issue here, it's hard to see how national security interests are implicated by the disclosure. Surely terrorists are already aware that the government has the ability to intercept communications. Bypassing the warrant procedure doesn't change that basic fact.
But let's suppose, since we're speculating here anyway, that the surveillance program at issue involves some sort of technology or process which, if exposed, would diminish its effectiveness significantly. Let's also assume that this technology or process was not contemplated by FISA and, for practical reasons, is simply not compatible with the procedures outlined in that act. If so, then we have to consider the possibility that national security concerns are preventing the Bush administration from offering, at least publicly, their most robust defense of the legality of the program. In other words, they may be characterizing this program as involving traditional wire-tapping, something FISA was clearly designed to address, because offering a more accurate description of the program would compromise its effectiveness.
If this is the case, it would not necessary get the administration off the hook, but it might blur the issue somewhat. Imagine you are the president, and you are presented with a new process or technology that has the potential to dramatically improve the government's ability to locate terrorists within the United States and prevent future attacks. You're convinced that the program is constitutional, but, for practical reasons, the program simply cannot be implemented within the statutory framework established by Congress in FISA; the drafters of the 1972 statute just didn't have this sort of technology in mind. The obvious next step would be to go to Congress and lobby for FISA to be amended in a way that would allow this new program to be implemented. But what if you were convinced that there was no way to do this without exposing the technology and, in doing so, significantly undermining the effectiveness of the proposed program. In other words, securing explicit Congressional authorization would, in and of itself, have compromised the program. In that situation, the President would face a very difficult decision. *If* that is the situation that President Bush found himself in (and that's a BIG if), then the argument in support of his invocation of article II power would be more plausible than it first appears.
Clearly I'm well into the land of speculation here. It's important to keep in mind that--based on the public record--there is not yet any strong evidence that the program at issue involved anything more than traditional wiretapping techniques. If that's the case, then I think the President's decision to disregard the clear mandate of FISA is very hard to defend. My point in writing this post, however, is to suggest that there may be more to this story than meets the eye. Whether that missing part of the picture makes the administration's position more or less defensible is something we cannot know until we learn more about the program itself. But it may not be possible for us to learn more about the program without compromising the program. And therein lies the Catch-22.
UPDATE: I should have included this quote from Alberto Gonzalez in my original post:
We've had discussions with members of
Congress, certain members of Congress,
about whether or not we could get an
amendment to FISA, and we were advised
that that was not likely to be — that was not
something we could likely get, certainly not
without jeopardizing the existence of the
program, and therefore, killing the program.
That seems to be consistent with my speculation above. Also, read this post from Kevin Drum.
posted by A.L. at 2:26 PM
6 Comments:
COURT SAYS U.S. SPY AGENCY CAN TAP OVERSEAS MESSAGES
By DAVID BURNHAM, SPECIAL TO THE NEW YORK TIMES (NYT) 1051 words Published: November 7, 1982
A Federal appeals court has ruled that the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agents, and then provide summaries of these messages to the Federal Bureau of Investigation.
Because the National Security Agency is among the largest and most secretive intelligence agencies and because millions of electronic messages enter and leave the United States each day, lawyers familiar with the intelligence agency consider the decision to mark a significant increase in the legal authority of the Government to keep track of its citizens.
Reverses 1979 Ruling
The Oct. 21 decision of the United States Court of Appeals for the Sixth Circuit involves the Government's surveillance of a Michiganborn lawyer, Abdeen Jabara, who for many years has represented Arab-American citizens and alien residents in court. Some of his clients had been investigated by the F.B.I.
Mr. Jabara sued the F.B.I, and the National Security Agency, and in 1979 Federal District Judge Ralph M. Freeman ruled that the agency's acquisition of several of Mr. Jabara's overseas messages violated his Fourth Amendment right to be free of ''unreasonable searches and seizures.'' Last month's decision reverses that ruling.
In earlier court proceedings, the F.B.I. acknowledged that it then disseminated the information to 17 other law-enforcement or intelligence agencies and three foreign governments.
The opinion of the three-judge panel of the Court of Appeals held, ''The simple fact remains that the N.S.A. lawfully acquired Jabara's messages.''
The court ruled further that the lawyer's Fourth Amendment rights ''were not violated when summaries of his overseas telegraphic messages'' were furnished to the investigative bureau ''irrespective of whether there was reasonable cause to believe that he was a foreign agent.''
I may be wrong, but don't think that case is relevant. In that case, warrants were used; FISA was followed. The issue here is whether the executive branch can unilaterly decide not to follow FISA.
I'm impressed. A resonable discussion from the left that doesn't involve hyperventilation or any "dictator" or "Hitler" comments.
I think you are barking up the right tree. If you really parse the statements made by the administration in their defense of the program, it seems to really go past "domestic spying" which is the MSM buzz. In addition, the strange behavior of the congressional democrats in the know is very peculiar.
Politically speaking, this is a no brainer for Bush. The question is - how far will the moonbat wing of the congress go out on this before getting sawed off? Disclosing the details of a sucessful terrorist nabbing scheme via a moonbat crusade is the exact recipe for republican dominance of the three branches well beyond the 2006 elections.
Glenn Greenwald stated in his rather long diatribe, "This is a real case study in how total falsehoods are disseminated by a single right-wing blogger who is then linked to and approvingly cited by large, highly partisan bloggers, which then cause the outright falsehoods to be bestowed with credibility and take on the status of a conventionally accepted talking point in defense of the Administration."
This could easily be stated about his blog and all the liberal bloggers that are linking to his site. People read and believe what they want to believe. Just as the conservative bloggers are going to link to other blogs representing information that supports their ideals, so to do the liberal bloggers. It’s all a big game.
No one here, not even Mr Greenwald is an expert in constitutional law. And as we all now, lawyers are very adapt at interpreting laws to say what they want, including Mr. Greenwald. This is a matter that will probably be decided by the Supreme Court and not on some armchair lawyer’s blog site.
I may be wrong, but don't think that case is relevant. In that case, warrants were used; FISA was followed.
You're wrong. In the Jabara case, warrants were NOT used, and FISA was not followed because the data collection occured before FISA was even written.
The issue here is whether the executive branch can unilaterly decide not to follow FISA.
Not really. The courts have ruled the executive authoirty exists. They have also ruled that COngress cannot encroach it--which means that FISA only applies to the executive where the executive lacks constitutional authority. What the executive cannot do is exceed that constitutional authority to collect national security intelligence on foreign powers and their agents. The issue is the extent of that authority. No more, no less.
I stand corrected with respect to the Jabara case. If it predates FISA, it's still clearly irrelevant, though.
As for your second comment, are you suggesting that FISA itself is unconstitutional. If so, that's a pretty radical argument. I don't even think the Bush administration is making that argument.
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