From the Department of Bad Legal Reporting
(updated below with link to opinion)
Here's Eric Lictblau in the New York Times this morning:
If that's the case, and I'm virtually certain it is, there is nothing at all in this ruling that offers any "legal credence to the Bush administration's repeated assertions" that it had the power to order surveillance that violated statutory restrictions. Quite the contrary. From the moment the NSA program was first disclosed in December of 2005, the issue has always been whether the president has the "inherent authority" to disregard a statute like FISA that purports to place restrictions on his ability to conduct surveillance of Americans. The Bush administration claimed it had such powers, despite overwhelming legal authority to the contrary. When Congress passed the Protect America Act, it statutorily authorized the President's subsequent surveillance activites, assuming he stays within the rather wide confines of that law. The court here has merely upheld Congress's prerogative to pass such a law. There's nothing here that lends any credence whatsoever to claims of law-breaking authority made by the Bush administration over the last few years.
I've said this before, but newspapers like the Times really should solicit the help of lawyers when writing articles like this.
UPDATE: Thanks to a helpful commenter, here's a link to the opinion itself. As I suspected, the opinion makes no reference whatsover to the issue of whether the president has the "inherent authority" to disregard statutory restrictions on his surveillance powers. Rather, the entire opinion is a response to a Fourth Amendment challenge to the Protect America Act. The Court of Review held, not surpisingly, that the Protect America Act, as applied by the executive branch, is constitutional.
Let me repeat, nothing in this opinion is remotely relevant to or provides even the slightest bit of support for the Bush administration legal arguments used to justify the NSA program from 2001 to 2006, before the passage of the Protect America Act.
Here's Eric Lictblau in the New York Times this morning:
A federal intelligence court, in a rare public opinion, is expected to issue a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a court order, even when Americans’ private communications may be involved. . . .Umm. No. Though the opinion itself hasn't been released yet, it's clear from the rest of the article that the ruling had nothing to do with the president's authority. Rather, the court upheld the Protect America Act against a constitutional challenge, likely on Fourth Amendment grounds. In other words, the court ruled that Congress was within its constitutional authority to pass that statute, a completely unsurprising conclusion.
The decision marks the first time since the disclosure of the National Security Agency’s warrantless eavesdropping program three years ago that an appellate court has addressed the constitutionality of the federal government’s wiretapping powers. In validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has constitutional authority to act without specific court approval in ordering national security eavesdropping.
If that's the case, and I'm virtually certain it is, there is nothing at all in this ruling that offers any "legal credence to the Bush administration's repeated assertions" that it had the power to order surveillance that violated statutory restrictions. Quite the contrary. From the moment the NSA program was first disclosed in December of 2005, the issue has always been whether the president has the "inherent authority" to disregard a statute like FISA that purports to place restrictions on his ability to conduct surveillance of Americans. The Bush administration claimed it had such powers, despite overwhelming legal authority to the contrary. When Congress passed the Protect America Act, it statutorily authorized the President's subsequent surveillance activites, assuming he stays within the rather wide confines of that law. The court here has merely upheld Congress's prerogative to pass such a law. There's nothing here that lends any credence whatsoever to claims of law-breaking authority made by the Bush administration over the last few years.
I've said this before, but newspapers like the Times really should solicit the help of lawyers when writing articles like this.
UPDATE: Thanks to a helpful commenter, here's a link to the opinion itself. As I suspected, the opinion makes no reference whatsover to the issue of whether the president has the "inherent authority" to disregard statutory restrictions on his surveillance powers. Rather, the entire opinion is a response to a Fourth Amendment challenge to the Protect America Act. The Court of Review held, not surpisingly, that the Protect America Act, as applied by the executive branch, is constitutional.
Let me repeat, nothing in this opinion is remotely relevant to or provides even the slightest bit of support for the Bush administration legal arguments used to justify the NSA program from 2001 to 2006, before the passage of the Protect America Act.
posted by A.L. at 9:58 AM
15 Comments:
It's amazing how none of the lawyers who discuss the TSP ever discuss ACLU v. NSA or Al-Haramain except to dismiss the reasons for why the courts ruled the way they did in those cases. Of course, this allows the following statements to be made, despite evidence from the courts to the contrary:
There's nothing here that lends any credence whatsoever to claims of law-breaking authority made by the Bush administration over the last few years.
The new FIS Court of Review opinion is available here (pdf). The order directing release of the opinion is here.
My completely non-legal comment.
I think the FISA court itself is an abomination and should be dissolved anyway. I simply cannot conceive of any instance where taking the time to call up a judge in the middle of the night to get a warrant would be taking too much time and harm us either as a country or be a danger to any person(s).
Ditch FISA; require a warrant for any search or tap. Don't even allow cops to search someone's car without a warrant.
SteveIL--maybe I misread your comment. But if a decision isn't based on the merits of claim A (no presidential authority for non-FISA wiretaps), and is decided on the basis of claim B (standing), claim A remains unresolved. None of the rulings in the case you mention refute the statement you quoted.
My understanding -- and feel free to correct me -- is that the President had inherent authority to conduct foreign intelligence, FISA circumscribed it, and PAA scaled back FISA, restoring the President's inherent authority to its full scope. In other words, one could easily read the case to hold that the President's inherent authority to conduct foreign intelligence is consistent with the foreign intelligence exception to the Warrant Clause of the Fourth Amendment. It necessarily follows that, as a constitutional matter, the Warrant Clause of the Fourth Amendment cannot bar the President's inherent constitutional authority to conduct (purely) foreign intelligence. That is why hard-line conservatives are rejoicing.
all laws that violate the constitution are found to be null and void.
-tinfoil harry
My understanding -- and feel free to correct me -- is that the President had inherent authority to conduct foreign intelligence...
Ok, here's the correction you asked for:
No. There is no "inherent authority" granted by the Constitution that allows the President to violate existing statutory law (before the 2007 PAA) prohibiting wiretapping, whether or not his claim is that he was trying to "conduct foreign intelligence" or for any other reason.
There is no "inherent authority" granted by the Constitution that allows the President to violate existing statutory law
Who says FISA was constitutional in all respects? And why the scare quotes? No one denies that the President has inherent powers that can be circumscribed by statute -- conservatives here argue that because FISA was unconstitutional as applied to certain aspects of certain programs it did not circumscribe those powers; liberals argue they were cabined by FISA, which is 100% constitutional. The question is moot now; but the argument you make is just nonsense and so are your nonsensical scare quotes.
My understanding -- and feel free to correct me -- is that the President had inherent authority to conduct foreign intelligence, FISA circumscribed it, and PAA scaled back FISA, restoring the President's inherent authority to its full scope. In other words, one could easily read the case to hold that the President's inherent authority to conduct foreign intelligence is consistent with the foreign intelligence exception to the Warrant Clause of the Fourth Amendment. It necessarily follows that, as a constitutional matter, the Warrant Clause of the Fourth Amendment cannot bar the President's inherent constitutional authority to conduct (purely) foreign intelligence. That is why hard-line conservatives are rejoicing.
I'm sorry, but that's just not at all accurate. The question of whether Congress can authorize warrantless surveillance for foreign intelligence purposes has nothing whatsoever to do with the entirely separate question of whether the President can disregard statutes like FISA.
The reason why the disclosure of the NSA program was a big deal was not because it might arguably violate the 4th Amendment. It was because it did, unquestionably, violate FISA. Back in the 1990s, Clinton authorized a warrantless physical search in the Ames case. At the time, FISA didn't cover physical searches. Congress quickly amended FISA to cover such searches. If the Clinton administration had subsequently violated FISA and conducted additional warrantless physical searches, claiming inherent authority, it would have been a BIG deal. He would have been impeached for it, no question.
But that's exactly what Bush did. He authorized warrantless surveillance in direct contravention of FISA, claiming he had the inherent authority to disregard a duly enacted statute. That was an unprecedented and unsupportable claim, and it's the reason everyone flipped out.
The court's ruling today has absolutely no bearing on that issue at all.
A.L. said: "But that's exactly what Bush did. He authorized warrantless surveillance in direct contravention of FISA, claiming he had the inherent authority to disregard a duly enacted statute..."
Does "duly enacted" mean "constitutional"?
Can the Executive just ignore a law, or that part of a law, it regards as unconstitutional, possibly in secret? Where is it written that the Executive cannot do this?
Who can be taken seriously using the words "Scare Quotes"?
Maybe you could explain this to me, I just get I one would use that term. It makes it difficult to consider your otherwise credible position.
A L,
Please clarify for me.
"Back in the 1990s, Clinton authorized a warrantless physical search in the Ames case. At the time, FISA didn't cover physical searches. Congress quickly amended FISA to cover such searches. If the Clinton administration had subsequently violated FISA and conducted additional warrantless physical searches, claiming inherent authority, it would have been a BIG deal. He would have been impeached for it, no question.
But that's exactly what Bush did. He authorized warrantless surveillance in direct contravention of FISA, claiming he had the inherent authority to disregard a duly enacted statute. That was an unprecedented and unsupportable claim, and it's the reason everyone flipped out."
A L,
Please clarify for me. What does the term (Physical) mean to you. Last time I was at NSA I saw no men in black suits. They work mostly in satellites or huge ground stations.
AL- the problem with your take on this is that you fail to distinguish between (1) a case that does not directly address or control a particular issue and (2) a case that is totally irrelevant to that issue. As you well know, those are two very different things. To give just one example, a Supreme Court case that holds it is unconstitutional to criminalize sodomy does not directly address, or come anywhere close to holding, that there is a constitutional right to gay marriage. But that doesn’t mean that the case is “totally irrelevant” to the gay marriage issue. On the contrary, it is totally predictable that lawyers would rely on that case for the proposition that there is a constitutional right to gay marriage. Even state courts, addressing the question of the constitutionality of gay marriage under state constitutions, can be expected to cite the federal case as some authority, however remote, on that issue.
With this clarification, it seems pretty clear to me that you are wrong, and the NY Times reporter correct, about the significance of the FISA court case. The reporter said the case “may” give some credence to Bush Administration’s legal position on presidential warrantless wiretapping authority. For this modest claim to be true, all that is required is that the case support some proposition, or contain some dicta, that would be useful to proponents of the Bush position.
I am not an expert in this area, but it seems to me that the FISA court case almost has to meet that standard. A brief glance at the opinion tends to confirm that view. For example, the court states that “there is a high degree of probability that requiring a warrant would hinder the government’s ability to collect time-sensitive information and, thus, would impede the vital national security interests that are at stake.” It seems to me that this assessment by a court with presumed expertise in the area would be of great value to a lawyer attempting to argue for the Bush legal position. This doesn’t mean the lawyer wins the argument, just that the FISA court case provides useful authority for his or her position.
I am sure the NY Times reporter doesn’t completely understand the legal topics he is writing about. From my experience in reading or listening to media reports on subjects within my area of expertise, reporters almost never get legal issues exactly right, even when they have consulted with lawyers. But in this case your outrage seems to be misplaced.
I still want to know what did Bush wanted to do or what was he doing that made all these legal right wingers want to quit in protest and forced Gozno/Card to Ashcroft's hospital room.
It is preposterous that this gets decided by the FISA Review Court in the first place. A bunch of judges whose paycheck comes from the existence of FISA, and who basicially do nothing day in and day out but approve FISA warrants and programs and excuse compliance failures, announces that in their august opinion, FISA is fine. Gee, hoocoodanode? This is like asking the GM Board of Directors whether American cars are good.
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