Two Theories Confirmed in One Day?
The Washington Post on Wednesday all but confirmed my well-documented suspicion that the administration's primary argument for the legality of the NSA program is nothing more than a post-hoc rationalization they came up with years after the program began.
Now, the New York Times (h/t Glenn Greenwald) provides some evidence which supports my other pet theory about the NSA controversy: that the driving force behind the administration's behavior--dating all the way back to 2001--is a desire to avoid judicial review of this and similar programs. As I've explained multiple times, I think the administration chose not to go to Congress in the first place because it feared that any significant departures from FISA would trigger Fourth Amendment challenges which, if successful, would erect permanent legal barriers to certain surveillance practices. The Times reports on a meeting of Congressional Republicans held on Wednesday to discuss how to proceed on the NSA issue:
I suspect that the members of Congress going to bat for the White House were the ones expressing this concern. The administration is terribly afraid of being rebuked by the courts on this issue, and it will do whatever it can to keep these programs from being subjected to any serious judicial scrutiny, something Specter's bill would require.
The administration has to realize, though, that the best they can hope for is to delay their eventual day of reckoning. Even if Specter's bill is defeated, some private plaintiff will eventually succeed in getting this issue heard by a court. Indeed, the Washington Post reports in Thursday's edition that a new legal challenge to the NSA program has been filed by a plaintiff who may well be able to satisfy standing requirements.
If al-Haramain does indeed have records indicating that his communications were intercepted, and the administration can't produce records of FISA warrants for those interceptions, al-Haramain should have little trouble establishing standing. If so, the administration's bluff will have been called; the DOJ will actually have to present its embarrassingly weak arguments to a federal judge. I'd love to sit in on that hearing.
Now, the New York Times (h/t Glenn Greenwald) provides some evidence which supports my other pet theory about the NSA controversy: that the driving force behind the administration's behavior--dating all the way back to 2001--is a desire to avoid judicial review of this and similar programs. As I've explained multiple times, I think the administration chose not to go to Congress in the first place because it feared that any significant departures from FISA would trigger Fourth Amendment challenges which, if successful, would erect permanent legal barriers to certain surveillance practices. The Times reports on a meeting of Congressional Republicans held on Wednesday to discuss how to proceed on the NSA issue:
Still, people at the meeting, speaking on
condition of anonymity because its
deliberations were supposed to be confidential,
said the group remained sharply divided. On
one side, Senator Arlen Specter, the
Pennsylvania Republican who is chairman of
the Judiciary Committee, has proposed a bill
that would require the administration to seek
periodic approval for the program as a whole
from the existing Foreign Intelligence
Surveillance Court, as well as its approval for
specific wiretaps.
Others in the meeting questioned whether the
foreign-intelligence court's approval for the
whole program might risk rejection by the
Supreme Court, according to the people
present. They said still others argued that
involving a court would clash with the
president's war powers.
I suspect that the members of Congress going to bat for the White House were the ones expressing this concern. The administration is terribly afraid of being rebuked by the courts on this issue, and it will do whatever it can to keep these programs from being subjected to any serious judicial scrutiny, something Specter's bill would require.
The administration has to realize, though, that the best they can hope for is to delay their eventual day of reckoning. Even if Specter's bill is defeated, some private plaintiff will eventually succeed in getting this issue heard by a court. Indeed, the Washington Post reports in Thursday's edition that a new legal challenge to the NSA program has been filed by a plaintiff who may well be able to satisfy standing requirements.
According to a source familiar with the case,
the records indicate that the National Security
Agency intercepted several conversations in
March and April 2004 between al-Haramain's
director, who was in Saudi Arabia, and two
U.S. citizens in Washington who were working
as lawyers for the organization. The
government intercepted the conversations
without court permission and in violation of
the law, al-Haramain asserts in its lawsuit. . . .
Experts on FISA, while emphasizing that
they are unfamiliar with the specifics of the
al-Haramain case, said they question
whether a FISA judge would agree to allow
surveillance of conversations between U.S.
lawyers and their client under the general
circumstances described in the lawsuit.
If al-Haramain does indeed have records indicating that his communications were intercepted, and the administration can't produce records of FISA warrants for those interceptions, al-Haramain should have little trouble establishing standing. If so, the administration's bluff will have been called; the DOJ will actually have to present its embarrassingly weak arguments to a federal judge. I'd love to sit in on that hearing.
posted by A.L. at 12:03 AM
14 Comments:
Aren't we saying that we wouldn't have known without the interception that they were funding terrorism, and that since UNDER FISA (but perhaps not under Art II) this may not have been legal, that this terrorism funder should now be rewarded?
Edify me.
However, IMHO, FISA itself is unconstitutional..otherwise congress could by statute limit the powers and rights of we little nobodies (as they tried to do with Miranda rights, and were revesed by SCOTUS) as well as other branches. Why not have a statute saying Rowe vs Wade (or Plessy) could only be reversed by 6-3 or greater?
What standing would that have?
But I'm no lawyer, I only read the doc.
from Another (real) liberal..
Another (real) liberal is wrong and probably not really a liberal.
FISA is constitutional.
Aren't we saying that we wouldn't have known without the interception that they were funding terrorism, and that since UNDER FISA (but perhaps not under Art II) this may not have been legal, that this terrorism funder should now be rewarded?
Um, no. One of the peculiarities of our legal system is that not just anyone can challenge a law or government practice, even if they have an airtight legal argument. Government laws and practices can only be challenged by those who are "injured" by them. This is called standing.
What we have now is a situation where the Bush administration is conducting a program that is almost certainly illegal and quite possibly unconstitutional. Yet because the program is top secret, it's very hard to know just who has been directly affected by it. That makes finding a proper plaintiff very hard. If al-Haramain can establish standing, from that point on, the arguments with have nothing whatsoever to do with him. His challenge is merely a vehicle to allow the courts to opine on the legality of this program as a whole.
AL,
I would assume that in this case they would also have to prove that the U.S. citizens were the target of warrantless eavesdropping right? FISA does not apply if the target was the person in Saudi Arabia and they happened to intercept a call where he spoke to someone in the U.S.
I think that's right, Eriposte. I assume that the attorneys filing this challenge have good reason to believe that this is the type of interception that would normally require a FISA warrant. The question will be whether the government can produce any records indicating that FISA was followed.
Great post as usual AL. Please don't fall for this new Rovian hat trick.
This Saudi lawsuit is a hoax. The thinking behind this latest gambit is to seize control of the debate by having the absolute least sympathetic party be the first one to bring a lawsuit alleging their civil rights were violated by the government's warrentless spying program.
Most Americans would have no sympathy for this Saudi group because of dubious facts associated with the case that actually make them look exactly like the kind of "probable" terrorist the public at large is willing to allow to be placed under surveillance, in what they see as a legitimate tradeoff of freedom for security.
That's one of the oldest tricks used in politics. Hire a shill to say "Mr. X is a drug dealer" then expose the accusor as being a pedophile. The result is people think Mr. X is NOT a drug dealer, when you can bet he is. Discredit the witness, you discredit the underlying issue.
Please don't be naive. Never underestimate the cunning of your enemy. What's needed is a real person, not working in lockstep with the Government, to bring a real case in an instance where someone who has no terrorist connections or even tangential, connections, or even the appearance of any such connections was spyed on for partisan purposes, whether to get dirt on the person, or to squash dissent, or because the person is a journalist, or whatever. That is the kind of lawsuit that will move this issue forward.
The Saudi lawsuit will torpedo constructive progress on this matter.
Great post as usual AL. Please don't fall for this new Rovian hat trick.
This Saudi lawsuit is a hoax. The thinking behind this latest gambit is to seize control of the debate by having the absolute least sympathetic party be the first one to bring a lawsuit alleging their civil rights were violated by the government's warrentless spying program.
Most Americans would have no sympathy for this Saudi group because of dubious facts associated with the case that actually make them look exactly like the kind of "probable" terrorist the public at large is willing to allow to be placed under surveillance, in what they see as a legitimate tradeoff of freedom for security.
That's one of the oldest tricks used in politics. Hire a shill to say "Mr. X is a drug dealer" then expose the accusor as being a pedophile. The result is people think Mr. X is NOT a drug dealer, when you can bet he is. Discredit the witness, you discredit the underlying issue.
Please don't be naive. Never underestimate the cunning of your enemy. What's needed is a real person, not working in lockstep with the Government, to bring a real case in an instance where someone who has no terrorist connections or even tangential, connections, or even the appearance of any such connections was spyed on for partisan purposes, whether to get dirt on the person, or to squash dissent, or because the person is a journalist, or whatever. That is the kind of lawsuit that will move this issue forward.
The Saudi lawsuit will torpedo constructive progress on this matter.
Today the Washington Post has an article about the latest kerfuffle, as a Saudi terror financing group complains they were spied upon: Saudi Group Alleges Wiretapping by US.
See AL? That quote is from LGF, where they're all laughing at the concept of terrorists claiming their right were violated.
This suit really sets back our legitimate efforts to investigate this NSA scandal and hold those accountable who broke the law.
Anonymous,
I very much doubt that this suit is some Rovian plot. And if it is, it seems likely to backfire. If this challenge were to result in a judicial declaration that this program is illegal, that declaration would be broad and would apply to ALL warrantless surveillance. The mainstream media and (most) of the American people aren't dumb enough to be distracted by focusing on one particular plaintiff. The headline will be "President broke the law" not "Saudi man wins suit." Plus, it's pretty easy to turn that sort of spin right back around in the administration's face. You can just point out that if they had gotten a warrant like they were supposed to, none of this would have happened.
The important thing is to get this this issue before a federal court. If you try to wait for the perfect plaintiff, you'll be waiting forever, especially when the program is secret.
"the driving force behind the administration's behavior--dating all the way back to 2001--is a desire to avoid judicial review of this and similar programs."
this is the very point we have reiterate.
doesn't the current law allow the nsa 72 hours to get approval for surveillance efforts after the fact?
i've yet to hear anyone representing bush co. saying they're complying with that provision of the law.
I enjoy "anonymous"people making ad hominem attakcs based on no lknowledge of who I am, but never mind.
Thanks you AL for your explanantion of standing, now how about the idea that congress by statute limiting the powers and authority of another branch.
Why wouldn't FISA be any different from congress's attempt to legislate the continuity of Edwin Stanton? Or be any different from (at the time) representing popular opinion and requiring by statue a super majority of the supreme court to overturn Plessy?
This is NOT a political issue folks. I absolutely guarantee you that one day a democratic president will be fighting an opposing majority in congress over issues just like this.
Can congress by statute define or limit the powers of other branches?
Statments of 'FISA is Constituional' by 'anonymous' are not only not an academic or historical defense but are useless.
Historically, I believe it's not. Legally I really can't offer you an opinion. However, I would submit that whether one is liberal, conservative or anything ..(leaving out incompetence in the admin in AUMF etc, which I think is a loser) this kind of issue is EXACTLY why the supreme court exists.
Epaminondas, you ask:
Can congress by statute define or limit the powers of other branches?
The answer is absolutely. Congress has all sorts of powers to regulate the other two branches use of their power, and it's right there in the Constitution. Congress can determine the jurisdiction of the courts and the rules that must be followed in the courts. And virtually every statute passed by Congress (and signed by the president) limits the power of the executive. That's just how our system works. You are conflating the concepts of default authority and exclusive authority. When Congress and the executive branch have concurrent powers (which they do in most cases related to war), the executive's authority is merely to set the default rules, which can then be changed by Congress. For a good explanation of this, I recommend the article by Prof. Dorf cited in a more recent post.
Thanks I will look for it
okay, very thought provoking, and I'm almost convinced, but not quite.
I argue for elucidation
As I understand it, the argument is that like Jackson's low ebb, if congress chooses to limit the president's default setting, his only resort is to the brute force argument of article II. This means that the president's breadth of constitutional authority to conduct war rests on the popular 'whim' of of the elected congress. This may reccomend a search of the Federalist papers for intent. Again, that would be a historical argument. But that's the reason SCOTUS is there between branches
Seizing steel mills is not in any way comparable to the conduct of a war.
War powers historically (as opposed to legally)are pretty expansive, which is the vehicle by which Lincoln, for instance, confiscated the private property of millions of private citizens in the south formerly known as slaves. Lincoln and his cabinet were explicit about this.
I cannot refute the ongoing logic legally of Dorf which is solid, but I still would be much more comfortable frankly, if FISA was subjected to ultimate review. Article II VS. Illegal Search in time of War..c'mon it would be an all time show.A decision worthy of the signal names like Holmes, Hand, Brandeis,.....
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