Brazen Dishonesty From The Wall Street Journal
I know, I know. It really shouldn't surprise anyone at this point that the Wall Street Journal would use its editorial page to, yet again, brazenly mislead its readers, but it still bothers me. The headline of the editorial is "The Wiretap Vindication" and it begins with this:
Let's keep in mind the general timeline of events here:
1) From 1978-2006, there was a law in place that said "don't do X; if you do X, it's a felony."
2) The Bush administration secretly did X.
3) When it was caught doing X (a felony under existing law), it argued that it had the "inherent authority" to do X regardless of what the law says, a claim that has no support in constitutional case law.
4) This "inherent authority" argument was emphatically rejected by the Supreme Court in the Hamdan case in 2006 in a virtually identical context, causing widespread wailing and gnashing of teeth among right wing true believers (see McCarthy, Andrew).
5) The Bush administration, after a series of adverse court rulings, was finally forced to go to Congress in 2006, and Congress amended the law to expressly allow the Bush administration to do X.
6) Now the FISA Court of Review has ruled that Congress was within its authority to pass that law and so the Bush administration is free to do X.
7) Vindication!
No, it doesn't make any sense. But that's the parallel universe where most right wingers are living at the moment. Somehow when a court declares that a law passed by Congress is constitutional, this vindicates brazen violations of a prior version of that law.
Ever since the Bush Administration's warrantless wiretapping program was exposed in 2005, critics have denounced it as illegal and unconstitutional. Those allegations rested solely on the fact that the Administration did not first get permission from the special court created by the 1978 Foreign Intelligence Surveillance Act. Well, as it happens, the same FISA court would beg to differ.As I explained yesterday, the court did no such thing. The lengths to which right wingers are going to try to spin this opinion as "vindication" of Bush's law-breaking is reaching comical heights. Consider the claim above that the allegations of law-breaking by Bush's critics "rested solely on the fact that the Administration did not first get permission from the special court." This is almost true except, of course, for one key detail: the reason it was problematic that Bush didn't first go to the FISA court was because the law, at the time, made it a felony not to do so.
Let's keep in mind the general timeline of events here:
1) From 1978-2006, there was a law in place that said "don't do X; if you do X, it's a felony."
2) The Bush administration secretly did X.
3) When it was caught doing X (a felony under existing law), it argued that it had the "inherent authority" to do X regardless of what the law says, a claim that has no support in constitutional case law.
4) This "inherent authority" argument was emphatically rejected by the Supreme Court in the Hamdan case in 2006 in a virtually identical context, causing widespread wailing and gnashing of teeth among right wing true believers (see McCarthy, Andrew).
5) The Bush administration, after a series of adverse court rulings, was finally forced to go to Congress in 2006, and Congress amended the law to expressly allow the Bush administration to do X.
6) Now the FISA Court of Review has ruled that Congress was within its authority to pass that law and so the Bush administration is free to do X.
7) Vindication!
No, it doesn't make any sense. But that's the parallel universe where most right wingers are living at the moment. Somehow when a court declares that a law passed by Congress is constitutional, this vindicates brazen violations of a prior version of that law.
posted by A.L. at 10:49 AM
16 Comments:
A.L.,
Isn't it also the case that the law in question was the PAA, which expired, and so now (as well as before it was enacted) warrantless wiretapping, except as allowed by FISA (as amended last year) is illegal?
Just to complete the timeline.
If the FISA Court of Review has ruled that the law was constitutional, wouldn't that imply that the actions by the Bush administration (that were covered by the law) were also constitutional? (Not talking about the legality.)
NAL,
So your question is: if the executive branch could somehow make a law (which is obviously unconstitutional) like this, would that law be constitutional?
I think the current FISC would find in the affirmative. Which, by the way, strongly suggests that the FISC needs some reconstitution in itself.
No, that's not my question.
Were the actions by the Bush administration a violation of the fourth amendment? If the law, which legalized those actions, is not a violation of the fourth amendment, then wouldn't the actions themselves not be a violation of the fourth amendment?
Were the actions by the Bush administration a violation of the fourth amendment? If the law, which legalized those actions, is not a violation of the fourth amendment, then wouldn't the actions themselves not be a violation of the fourth amendment?
They probably wouldn't. But this was never the real issue. The problem was not that the President violated the 4th amendment (this was an open issue under existing fourth amendment law). The problem was that Bush violated FISA, which made warrantless surveillance a felony. In other words, he violated a criminal statute and claimed that he had the inherent authority to do so.
Whether or not his actions ALSO violated the fourth amendment was always a secondary issue.
After reviewing some on AL's previous posts on possible Fourth Amendment violations of warrantless wiretapping for intelligence purposes, I see that AL has been more circumspect than Glenn.
Glenn:
Those warrantless eavesdropping powers violate core Fourth Amendment protections.
AL:
If you're going to put so much weight on the conclusion that the program violates the Fourth Amendment, you have to first prove that it does. This is the one area where the government actually has a decent argument.
After reviewing some on AL's previous posts on possible Fourth Amendment violations of warrantless wiretapping for intelligence purposes, I see that AL has been more circumspect than Glenn.
Having read Glenn from day one, I can say with certainly that Glenn too has always thought the violation of FISA (and accompanying claims of "inherent authority" to disregard statutes) was the major problem. The 4th Amendment concerns were real, but tangential. The Supreme Court, in the Keith case, left open the 4th amendment questions and I always figured that in the post-9/11 world, with a more conservative court, that question was likely to be answered in the president's favor if it was ever litigated.
The claim that the president has the power to disregard FISA, however, is a dangerous and frivolous argument with no support in the case law or the constitution.
So what happened to the Bush Apologist award? Too few people qualified in regard to the "must have had some credibility to begin with" requirement?
Isn't it likely the US Supreme Court will ultimately rule on FISA's constitutionality and not FISC?
If the ruling holds that congress was within its authority to pass a law regulating wiretapping, doesn't that actually undermine the Bush position that the president has sole authority so he could ignore the laws which made what he was doing felonies? Or does it have no bearing because that specific question was not asked? That is, did the ruling indicate that the authorization by congress of certain conduct was not a violation of the fourth amendment without addressing wether or not that legislation actually had any effect?
It's important to note that the FISA Court of Review most definitely did not rule that "the [Protect America Act as a whole] was Constitutional." Rather, it ruled the PAA Constitutional only to the extent of the "as-applied" portions of it that were implicated in one finite set of circumstances that applied to one company that challenged their PAA directives. That set of circumstances seems to have included spying directives targeting U.S. Persons located abroad, based on the references in the opinion (from which the basic facts of the case have been redacted, of course) to Executive Order 12333.
In fact, the limiting circumstances of the particular context (including, and apparently a result of, the use of the longstanding Executive Order 12333) of this company's directives - which included a 90-day-limit on the spying (both the overall PAA and the FISA Amendments Act allow year-long spying authorizations) would tend to indicate that a ruling on the Protect America Act (or the FAA, which authorizes basically the same spying authorized by the expired PAA) as a whole would have had a very different outcome, including with regard to our Fourth Amendment protections. Even from this obviously permissive and forgiving of executive abuse FISC of Review.
As the FISCR opinion indicates, the company tried to challenge the Constitutionality of the PAA as a whole, but the FISCR declined to hear that challenge, instead accepting the government's predictable argument to prevent such a hearing.
Here's what the FISC of Review held with respect to these particular circumstances:
"For these reasons, we hold that a Foreign Intelligence exception to the Fourth Amendment's warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States."
That targeting limitation ("against foreign powers or agents of foreign powers") is akin to original FISA's former limit on domestic spying, and is not a requirement of the main new spying authorization in the PAA (or the FAA). Under original FISA (in general), concerning targets inside the U.S. the government had to have probable cause that a target was "a foreign power or an agent of a foreign power" before a FISA judge could issue a spying order. Concerning U.S. Person targets outside the U.S. the Attorney General - under E.O. 12333 - had to certify that there was probable cause that a U.S. person abroad was "a foreign power or an agent of a foreign power" to commence spying.
Contrast that with the language in the PAA and the FAA regarding who may be targeted by year-long, non-particularized, non-individualized, non-probable-cause-as-to-foreign-agency spying conducted inside our borders:
The expired Protect America Act (partially at issue in the challenge at hand):
"...the Director of National Intelligence and the Attorney General, may [upon their attestation that "reasonable procedures" are in place for said acquisition] for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States..."
The existing FISA Amendments Act (which is possibly also under secret challenge now):
"...the Attorney General and the Director of National Intelligence may authorize jointly [using "reasonably designed" targeting procedures for said persons, and "in a manner consistent with the fourth amendment to the Constitution of the United States"], for periods of up to one year, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information."
Those new domestic spying authorities are both far broader than the limited holding of the FISCR quoted above.
4) This "inherent authority" argument was emphatically rejected by the Supreme Court in the Hamdan case in 2006 in a virtually identical context, causing widespread wailing and gnashing of teeth among right wing true believers (see McCarthy, Andrew).
I suggest you look at ACLU v. NSA, which seems to actually confirm the "inherent authority" argument used by the government (plaintiffs were denied standing since they couldn't prove they were being surveilled). As did al-Haramain. Both of those cases are more relevant now in regards to the TSP than Hamdan, especially since they came after Hamdan.
ACLU v NSA? Isn't that the case where the only judge to write about the actual merits of the case, wrote:
... inherent-authority arguments are weak in light of existing precedent and statutory construction.
Since IANAL, I don't understand how this "confirms the inherent authority argument."
SteveIL-
Those cases (to the extent the lower courts ruled on it) confirm the President has no such authority. When the cases get dismissed for lack of standing, it says nothing and signifies nothing with regards to the merits of the case, including the defense that the President has any kind of authority to do what he did. Hamdan is the closest case we have to evaluate the "inherent authority" argument, and it goes against the executive. al-Haramain is actually an excellent example of the President not having this authority, since the plaintiff got past the standing issue with an accidentally disclosed secret memo. Once they cleared the standing hurdle, the court clearly ruled FISA preempted the state secret privilege, and was the exclusive method for the executive to conduct foreign intelligence. When the appellate court said the plaintiffs could not use the document, their standing evaporated. Nonetheless, your assertion is very incorrect.
NAL, you are using the conclusion of the Clinton-appointed Judge Gilman, who wrote what you highlighted in a dissent that didn't change the outcome of the ruling.
First, the state secrets privilege isn't out there just because of some frivolous attempt to keep people from being able to prove abuse by the government. It recognizes a need to keep some information from the public to keep national security from being compromised. That was the contention in ACLU v. NSA. Second, it isn't that the TSP was done without congressional knowledge or approval; that program was kept going because the members of Congress who knew about it, and were kept up to date about it, and did not oppose it.
However, it is apparent I might be wrong regarding the final dispensation of al-Haramain. It seems that Judge Walker, two weeks ago today (and which nobody covered until today), issued a ruling requiring the government to provide documents to the plaintiff's lawyers (who will be required to keep quiet about them), to declassify any documents that no longer need to remain classified, and then plaintiff's and the government will need to meet to decide what to do next.
Personally, this doesn't make sense since al-Haramain has already been determined as a terrorist-affiliated group tied to Al Qaeda (through legally gathered financial records) by the U.S. government and the UN. For this reason alone the plaintiffs should be denied standing. Whether or not there were warrants issued against this group is immaterial.
While AL may have criticized the Bush surveillance program only as illegal rather than also unconstitutional, many other critics did charge it was a 4th Amendment violation. It seemed to me, in reading the Wall Street Journal article, that it was those critics who were being brought to task.
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