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Tuesday, January 31, 2006

Questions About The NSA Flap

I think Carl at No Oil For Pacifists does an admirable job of laying out the outlines of the controversy.

So if you have read Carl's post (which included direct links to a strong debater from the opposite point of view), I have some questions for you.

By definition data-sifting operations have no probable cause. If enough suspicious activity is detected, such operations may then result in an application for first a FISA order, and perhaps ultimately a search warrant from a court based on probable cause. Following trails/possible connections happens in real-time, so warrant could only be sought after the attempt to look at communications sent to or emanating from a certain point based on a pattern or a possible correlation. But there again, so little data could be brought forward in most cases that the issue of probable cause does not apply in advance. With that being the case, what purpose does having a FISA judge review such a warrant serve?

If you don't want NSA doing this type of thing, what do you expect us to do to prevent further attacks? Do you think it is reasonable to have the police searching people entering the subway system while not pursuing possible terrorist-related communications about plans to set off explosions in thse subways? Which security program is the greater impairment of your freedom? Can you explain how sending an email or phoning someone is not the use of a public utility such as the subway?

I believe that the intent of the Fourth Amendment and Fifth Amendments (click the link to the US Constitution, please) was to prevent the government from using its police powers to unfairly target certain people or groups. In essence, data-sifting operations are a collective search, and therefore entail the absolute minimum impairment upon individual liberty of any type of search. Such searches are done of people entering a stadium or a courthouse.

Collective searches mean that we are all subject to the same imposition. After all, my emails and phone calls are as subject to such a search as yours. Therefore the general public will have the most concern and exert the most pressure against an unreasonable use of such programs - and logically the courts need worry the least about protecting individual rights with regard to such programs.

While I think we must conduct data/communication sifting programs given the current reality, I am concerned about how they might be used. I don't want them under the unsupervised control of the Executive, because the machinery and assets used to conduct these programs can just as easily be misapplied. (And it was already in place, having been put in place in previous administrations.) One line I would like drawn is that information produced through such programs may only be used to combat terrorism. I don't want such information used to conduct other types of criminal investigations; that is a temptation that would result in such programs becoming ever more widely used by various law enforcement agencies.

The logical way to do this is by informing Congress of the scope and nature of such programs and allowing Congress to directly discuss the programs with those who are working on and in them. Supposedly that was done, although we do not know to what extent. Supposedly Congress (or some members) did not object, although we do not really know the details of that either. Has Congress abdicated its responsibility here? I don't know.

There are legitimate concerns about the potential for misuse of such a program. But I don't understand how anyone who thinks about this can believe that a FISA court judge is going to be able (or has the constitutional right) to balance out the necessary from the unnecessary. If you believe they can, please explain how.

FISA can be read as a law that would prevent any such widespread intercept programs using domestic communications networks. I doubt the courts will support such an interpretation. Carl references
this FISA decision, which held:

After a careful review of the briefs filed by the government and amici, we
conclude that FISA, as amended by the Patriot Act,2 supports the government’s position, and that the restrictions imposed by the FISA court are not required by FISA or the Constitution.


In sum, we think that the FISA as passed by Congress in 1978 clearly did not preclude or limit the government’s use or proposed use of foreign intelligence information, which included evidence of certain kinds of criminal activity, in a criminal prosecution.

Ultimately, the question becomes whether FISA, as amended by the Patriot Act, is a reasonable response based on a balance of the legitimate need of the government for foreign intelligence information to protect against national security threats with the protected rights of citizens.

Read the decision. It's important. It discusses (but does not decide) the issue of whether a FISA surveillance order is a warrant, notes that greater latitude may be given for "scope" investigations and so forth. By definition a sifting of communications for red flags cannot be scrutinized for cause, nor can it be minimized. The courts, when they have looked at such matters, have never been willing to assume authority over this type of operation. If that was Congress' intent in FISA, I think the courts have answered with a polite "No thank you, I prefer not."

This means that those concerned about communications surveillance need to take the matter up with Congress. Congress may limit the application of such information to garden variety criminal investigations. It hasn't. You will not find a majority of the citizens of this country who will take the stand that we should not be attempting to find budding terrorist cells before they strike. What's left is to minimize the potential misapplication of such programs.

Carl's post is a real winner.

As for your 'questions,' well, if they STILL don't get it- to hell with them. They are shedding crocodile tears. The real agenda is one of 'getting Bush-- no more, no less.

Though I agree in principle, the President's distinct Article II duties and powers would allow the Administration to bypass even an amended FISA. And Attorney General Gonzales makes a good case that modern telecom and terrorism make unilateral Executive Branch authority essential.

Is that "right?" Yes. Might such authority be abused? Yes. Would philosopher king NOfP change the law/policy? Dunno--but if a warrantless wiretap might have saved Chic, Karen, Barbara or Linda, they're little risk to the rule of law.
I can get involved here, and somewhat have in the past, but as it generally does in this area, I wind up simply saying...

What Carl said.

Any attempt to get more involved takes me beyond the area of what I should pretend to be qualified to talk about. Fortunately, there aren't any entrance exams for being a smart ass.
Carl - there is no question that FISA, or the interpretation of FISA that some people are pushing, is not workable and not constitutional. That's what the 2002 decision laid out, and it contains the reasoning that the public will not read in the NY Times.

Congress can not take away the Executive's powers under the Constitution by passing laws. Most of those who seem to be really alarmed by such surveillance programs probably have been spending the last 10 or 20 years writing love notes to dictators and foreign agents.

But given that we need to do this, some elementary precautions are necessary. Congress nominated the federal courts; the federal courts have declined the nomination and announced that if nominated, they will refuse both to run and serve.

Therefore it is up to the citizens to figure out how these powers will be constrained.

Properly used, datasifting is a defense of our liberties and our lives. Properly conducted, such programs defend even our privacy. Most Americans are not involved with world-wide terrorist networks and do not write mash notes to dictators. Targeted efforts such as the NSA program are ways to efficiently investigate potential dangers while leaving the vast mass of the population in unharassed safety.

But consider a Hillary Clinton or a Nixon; such types would use these facilities for improper purposes. There is an issue here, but it is not the issue the NY Times is trying to push.

It is Congress that put out the 9-11 report that was a lie. It is Congress that has been sitting on the Able Danger story. It is Congress that was apparently briefed about this program. If they did not object then they cannot object now.
Carl, you wrote:
"the President's distinct Article II duties and powers would allow the Administration to bypass even an amended FISA."

Yes, but even those Article II powers are constrained by the Bill of Rights if they are misused so as to become an instrument of domestic oppression. Article I also clearly contemplates a sharing of powers by giving the Legislative the power:
" To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

One of the ways Congress exercises constitutional control over the Executive branch is by its power of "arming" and setting rules.

Congress cannot make a law to take direction of the forces away from the President. That is completely unconstitutional. Furthermore, the President has an indisputable right under Article II to use the resources allocated by Congress, most especially in times of national emergency. Both by apparent inaction (not objecting to the NSA program) and by explicit authorization (the AUMF), Congress has given the Executive wide authority to use its powers in this situation. The courts have recognized that fact.

Those who are complaining about the Bush administration should be talking to Congress.
M_O_M, yes, but.

The conflict between Article I War Powers and Article II Commander in Chief Powers has been around since at least the Civil War. It's never been resolved, and -- as you say -- the Federal Courts have and will continue to duck, by calling the issue a non-justiciable political question. It's sort of a stalemate.

And I like that! I don't know the proper balance, and I'm sure the "right" answer shifts with each situation. Also that new Nixons are ever a danger. But I'm certain only the Executive Branch has the ability swiftly to respond to today's national security threats.

So I'm not budging: it's a political question. Meaning, those who object to the President's exercise of CinC powers can elect the other bunch next time.
the case that you quoted does not really say what you think it says. The legal issue at hand was whather the FISA court could mandate how law enforcement can monitor when a warrant is granted. Since the law enforcement is part of the executive, that is the constitutional "restriction" the opinion is talking about.

The issue at hand is not between congress and the executive, but the judicial and the legislative.

To put it simply, the FISA court said that to get a warrant, you must do XYZ. The decision says that the court cannot do that. It can grant or deny a warrant, but cannot put limitations on it.
Dingo, Since the decision explicitly addresses a number of broader issues in the course of delivering the decision, I think it does indicate the direction the courts are taking.

The decision explicitly covers the fact that the "Wall" did not ever have a basis in law and that the courts have no basis in adopting it as a legal interpretation. The Executive branch was free to adopt that doctrine, but not the courts.

The decision discusses "FISA as amended by the Patriot Act", the President's inherent authority to conduct warrantless espionage, the possible limits of the Fourth Amendment to such surveillance, etc. How you can read this decision and not see a decisive turn in the way the courts are treating these issues is beyond me:
The distinction between ordinary criminal prosecutions and extraordinary situations underlies the Supreme Court’s approval of entirely warrantless and even suspicionless searches that are designed to serve the government’s “special needs, beyond the normal need for law enforcement.”
Rather, the Court distinguished general crime control programs and those that have another particular purpose, such as protection of citizens againstspecial hazards or protection of our borders. The Court specifically acknowledged that an
appropriately tailored road block could be used “to thwart an imminent terrorist attack.” Id. at 44. The nature of the “emergency,” which is simply another word for threat, akes the matter out of the realm of ordinary crime control.33
FISA’s general programmatic purpose, to protect the nation against terrorists and espionage threats directed by foreign powers, has from its outset been distinguishable from
“ordinary crime control.” After the events of September 11, 2001, though, it is hard to imagine greater emergencies facing Americans than those experienced on that date.
We acknowledge, however, that the constitutional question presented by this case–whether Congress’s disapproval of the primary purpose test is consistent with the Fourth
Amendment–has no definitive jurisprudential answer.
Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close.

Ahhh, but what people are not understanding is that FISA has a provision for HOW to go about doing a warrantless wire tap which Bush also ignored. What you think is being addressed in this case is not being addressed.

And the stuff that you quote is not the holding, but dicta which holds no legal weight. So, maybe this court would agree with how things are being done if read by extrapolating it, but it is not legal authority that be relied upon by the president.

Court opinions can be tricky, but not everything that is in them is usable as legal authority. Dicta can be used as a persuasive argument, but not legal authority.
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