Wiretap Law--Debate and Answer

UPDATES: M_O_M and Rich Lowry explain why FISA's insufficent.

2d UPDATE: sondjata replies; short on hours this week, I react briefly and -- on reflection -- overly snidely in comments here.

3rd UPDATE: The debate moved here.

Since my post covering wiretap law, I've been debating sondjata at Garvey's Ghost, the sequence being:

1. sondjata: wiretap law


2. NOfP: wiretap law


3. sondjata: first reply to NOfP


4. NOfP: first reply to sondjata


5. sondjata: second reply to NOfP


6. NOfP: second reply to sondjata


7. sondjata: third reply to NOfP

This post will summarize the positions and provide my third reply.

What's Not At Issue:

• The President has inherent warrantless wiretap authority for foreign-to-foreign transmissions (sondjata, NOfP)



• The President has inherent warrantless wiretap authority for transmissions to/from the U.S. if the U.S. end is neither a U.S. citizen nor a U.S. permanent resident (sondjata, NOfP)



• The President does not have inherent warrantless wiretap authority to surveill either domestic criminals unconnected with any external threat, or domestic political enemies, in pursuit of evidence for criminal prosecution (sondjata, NOfP)

The remaining issues are still disputed.

1. Article II powers are an alternative: sondjata says:

   FISA is law. The president MUST put all domestic wiretaps through FISA.

   This isn't so; the courts have flatly rejected this argument, most recently (as noted in my first post), In re Sealed Case, 310 F.3d 717, 742 [slip op. at 48] (Foreign Intel. Surv. Ct. of Rev. 2002):

   The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

   Note the last phrase, which directly rebuts sondjata's central claim. That point was echoed by then-Attorney General Bell -- a Democrat -- testifying before Congress during debates on FISA, as quoted in the Administration's White Paper. Ask even the NY Times!
   
   The supremacy of Presidential authority under Article II, Section 2, cl. 1 is settled law, see United States v. Curtiss-Wright Corporation, 299 U.S. 304, 319-320 (1936), properly applied by Attorney General Alberto Gonzales. It's ironic, is it not, that the left embraces a "living Constitution"--but only when they hold the leash on the outcome.
   
   The fact that FISA authorizes another approach is not determinative, as the Supreme Court repeatedly has held in other contexts, see Dames & Moore v. Regan, 453 U.S. 654, 678 (1981). Who decides whether inherent Article II authority trumps legislation? According to the Clinton-era Department of Justice, the President, because the Chief Executive:

   must shoulder the responsibility of protecting the constitutional role of the presidency. This is usually true, for example, of provisions limiting the President's authority as Commander in Chief. Where it is not possible to construe such provisions constitutionally, the President has the authority to act on his understanding of the Constitution.

   On wiretaps specifically, the Supreme Court in Keith declined to address the issue. Nonetheless -- as detailed in my initial post -- every court ruling on the issue has concluded that the President has the Constitutional authority to authorize national security wiretaps without warrants. Clinton's Deputy Attorney General Jamie Gorelick said the same, agreeing with "every President since FISA's passage." Attorney General Gonzales concluded that FISA is too slow because it requires him "to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted. That review process can take precious time."
   
   In sum, FISA is law, but it's not the sole authority for wiretaps. Indeed, the implications of your position are frightening. Were Congress' interpretation of the Constitution to control, the Supreme Court couldn't declare a law unconstitutional. Were Congress able to confine Constitutional powers, it could amend the Constitution disregarding the set-forth process for Amendment. Your argument would sanction a law declaring Governor Schwarzenegger eligible for the Presidency. Can Congress do that? Logic, and Article II, Section 1, cl. 5, say "no."



2. AUMF authorizes warrantless wiretapping: sondjata says "the AUMF was not meant to expand presidential authority." But the AUMF says what it says--it approves anti-terrorism actions that are "so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use." Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004). The Hamdi case, of course, found that detention of combatants was a "fundamental and accepted . . . incident to war." So the question: is spying similar?
   
   Yes, says Gorin v. United States, 312 U.S. 19, 29 (1941) ("surveillance . . . [is] part of this nation's plan for armed defense. The part relating to espionage and counter-espionage cannot be viewed as separated from the whole."). See also Totten v. United States, 92 U.S. 105, 105 (1875) ("We have no difficulty at to the authority of the President in the matter. He was undoubtedly authorized during the war, as commander-in-chief of the armies of the United States, to employ secret agents to enter the rebel lines and obtain information respecting the strength, resources, and movements of the enemy.").
   
   This outcome shouldn't surprise. As I previously argued:

   National security eavesdropping is old news. Remember, the U.S. and U.K. broke Japanese and German "Enigma" codes; that knowledge won WWII. See, e.g., the Battle of Midway. Assuming some of those messages were received here, would that have required a warrant? Is that logical when the threat to America increases when an enemy is in communication with someone in the homeland?

   RNC Chairman Ken Mehlman said it better: "Do Nancy Pelosi and Howard Dean really think that when the NSA is listening in on terrorists planning attacks on America, they need to hang up when those terrorists dial their sleeper cells in the United States?"
   
   In sum, applying the Hamdi analysis to espionage strongly suggests the AUMF authorizes a broad range of spying,¹ including the NSA's warrantless wiretaps. Unearthing details and defending against planned terrorists attacks is sufficient justification for Seventh Circuit Judge Richard Posner:

   The benefits of such programs are easy to see. At worst, they might cause terrorists to abandon or greatly curtail their use of telephone, e-mail, and other means of communicating electronically with people in the United States. That would be a boon to us, because it is far more difficult for terrorist leaders to orchestrate an attack when communicating by courier. At best, our enemies might continue communicating electronically in the mistaken belief that, through use of code words or electronic encryption, they could thwart the NSA.

   sondjata's contrary view is Kerry-esque: I complained about intelligence failures before I perpetuated them.



3. Effect of other law: According to sondjata, the President's Commander in Chief powers can only be exercised in response to "imminent danger," a proposition he bases on the War Powers Resolution. That act has been ignored or evaded by all Presidents since its enactment (Reagan, Clinton), because most experts believe the Resolution is unconstitutional. The Federal Courts uniformly have refused to upset this view, see, e.g., Campbell v. Clinton, 52 F. Supp. 2d 34 (D.D.C. 1999), aff'd 203 F.3d 19 (D.C. Cir.), cert. denied, 531 U.S. 815 (2000). In any event, the Resolution does not demand Congressional approval to retaliate after "a national emergency created by attack upon the United States." The War Powers Resolution, in short, is an inapplicable dead letter here.
   
   It's also worth noting that -- should they apply -- the Geneva accords do not force a different result. Under Geneva III and IV, terrorists are classed as unlawful combatants and spies, afforded only minimal rights. Those requirements are no meaningful constraint on Presidential espionage authority.



4. Scope of Presidential power: sondjata says Bush can not short-cut Bill of Rights protections of citizens or permanent residents: "The President nor any other arm of government does not have, and never did have the constitutional right to spy on citizens without 'due process.'" Of course, Executive authority isn't unlimited. Nonetheless, it's most expansive in the face of overseas threats, as the Supreme Court confirmed in United States v. Curtiss-Wright Corp., 299 U.S. 304, 319 (1936): "The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs." That authority is sufficient to overcome sondjata's objections.
   
   Nor are Commander in Chief powers confined to aliens.² This was settled in Ex Parte Quirn, 317 U.S. 1, 37-38 (1942):

   Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents.

   See also Hamdi: "A citizen, no less than an alien, can be 'part of or supporting forces hostile to the United States or coalition partners' and 'engaged in an armed conflict against the United States.'"
   
   So the question is: are citizen belligerents entitled to exacting application of all Constitutional liberties and each jot and dot of due process? Not according to the Fifth Amendment: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger." Rather, "due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Nor do other procedural protections apply in full, as the Court held in both Quirn at 38-45 (U.S. citizen/enemy belligerent not entitled to Sixth Amendment trial by jury), and Hamdi (citizen detainee not entitled to confront witnesses nor the presumption of innocence). There's no reason to assume the Fourth Amendment is any different.
   
   And the Federal Courts have but a limited role in espionage cases, see Department of Navy v. Egan, 484 U.S. 518, 530 (1988) ("courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs"). Indeed, the case for judicial intervention is particularly weak here, as commenter NK says on the liberal Balkinization blog: "I hope that they will not rule that if a terrorist makes it to the top of the Sears Tower he can use his cell phone to guide in a suicide plane and the government is not allowed to listen in, in accordance with the liberals' interpretation of FISA." Agreed.



5. Treatment of Terrorism: Central to sondjata's erroneous belief that terrorists enjoy the full panoply of procedural rights is his assumption that terrorism is a crime which should, and will, be addressed by the criminal law. I vehemently disagree. More importantly, so does President Bush:

   This new threat required us to think and act differently. And as the 9/11 Commission pointed out, to prevent this from happening again, we need to connect the dots before the enemy attacks, not after. And we need to recognize that dealing with al Qaeda is not simply a matter of law enforcement; it requires defending the country against an enemy that declared war against the United States of America.

   Contrary to sondjata's assumption, criminal enforcement is not compelled. Remember, Senator Kerry proposed sondjata's policy; his position became an important reason to re-elect Bush. Indeed, Bush faulted President Clinton's treating the first WTC bombing solely as a crime, announcing instead that the United States considered itself at war with terrorists, shifting the focus away from law enforcement and towards prevention of further attacks.
   
   A President may charge terrorists--but this President prefers to interrogate them. Indeed, the Administration consistently tied wiretapping to national defense, not law enforcement, for example, President Bush:

   right after September the 11th, I knew we were fighting a different kind of war. And so I asked people in my administration to analyze how best for me and our government to do the job people expect us to do, which is to detect and prevent a possible attack. That's what the American people want. We looked at the possible scenarios. And the people responsible for helping us protect and defend came forth with the current program, because it enables us to move faster and quicker. And that's important. We've got to be fast on our feet, quick to detect and prevent.

   Attorney General Gonzales agreed (calling the surveillance "very, very important to protect the national security of this country."). Departing from criminal law to emphasize intelligence, warning and defense increases the odds that surveillance of international calls to/from terrorists is within Article II powers.
   
   Which is another reason the President need not follow FISA, as Judge Posner observes:

   So the problem with FISA is that the surveillance it authorizes is unusable to discover who is a terrorist, as distinct from eavesdropping on known terrorists--yet the former is the more urgent task. Even to conduct FISA-compliant surveillance of non-U.S. persons, you have to know beforehand whether they are agents of a terrorist group, when what you really want to know is who those agents are.
   
   FISA's limitations are borrowed from law enforcement. When crimes are committed, there are usually suspects, and electronic surveillance can be used to nail them. In counterterrorist intelligence, you don't know whom to suspect--you need surveillance to find out. The recent leaks from within the FBI, expressing skepticism about the NSA program, reflect the FBI's continuing inability to internalize intelligence values. Criminal investigations are narrowly focused and usually fruitful. Intelligence is a search for the needle in the haystack. . .
   
   Once you grant the legitimacy of surveillance aimed at detection rather than at gathering evidence of guilt, requiring a warrant to conduct it would be like requiring a warrant to ask people questions or to install surveillance cameras on city streets. Warrants are for situations where the police should not be allowed to do something (like search one's home) without particularized grounds for believing that there is illegal activity going on. That is too high a standard for surveillance designed to learn rather than to prove.

   Again, if the President chooses to wiretap for reasons other than criminal law enforcement -- and he has -- the question is whether his actions are authorized under Article II, not whether you agree that spying and soldiers is a better answer than courts and counsel. As Harvard Prof Harvey Mansfield says:

   In the current dispute over executive surveillance of possible terrorists, those arguing that the executive should be subject to checks and balances are wrong to say or imply that the president may be checked in the sense of stopped. The president can be held accountable and made responsible, but if he could be stopped, the Constitution would lack any sure means of emergency action. Emergency action of this kind may be illegal but it is not unconstitutional; or, since the Constitution is a law, it is not illegal under the Constitution.

   And disagreeing with de-emphasizing criminal law doesn't make Bush a crook. Especially when, according to the President, NSA surveillance "has been effective in disrupting the enemy, while safeguarding our civil liberties."
   
   In sum, we're not tapping Al Qaeda so Alan Dershowitz can persuade Robert Blake's jury that Osama's glove is too small. Rather, we want to kill Bin Laden and destroy his organization. We're not questioning underlings at Git'mo about unlicensed firearms--we seek intel about fellow terrorists both to prevent further attacks and to roll-up the existing organizations. But Bush critics implicitly assume wiretapping does not contribute to national security, as John Hinderaker at Powerline notes:

   very few of the progam's liberal critics are actually willing to take responsibility for calling for the termination of the NSA international surveillance program. . .
   
   What would happen if the President had not authorized the international surveillance program after September 11, and instead had relied solely on FISA, and the following events were to take place: the NSA obtains information that an al Qaeda operative overseas is planning a nuclear attack in conjunction with a cell inside the United States. The NSA decides to intercept all communications between the overseas al Qaeda operative and individuals located inside the U.S.; but first, it must obtain multiple layers of approval from lawyers and assemble all of the information needed to complete a FISA application. It begins that process, but the next day, while NSA is still working on getting the necessary approvals, a nuclear device levels much of Washington, D.C.
   
   Suppose that disaster had happened a year ago. How do you think the surviving Democrats would have responded?

   They'd try impeachment, that's how. And should a majority agree with sondjata and disagree with Bush, they can vote accordingly in November 2008.



6. Domestic spying: sondjata insists "wiretapping has been used to target non-criminal, non-terrorist related people and organizations." He also complains I've not addressed the question, despite my explicit concession: "Were the President (or the Vice President as you suggest) tapping domestic calls, for law enforcement purposes, unconnected with external threats, I say: 'nail him.'"
   
   But I doubt it. According to the President, the Vice President, the Attorney General and former NSA officials, the current wiretapping is focused on unearthing planned attacks to stop them. Indeed, the NSA bent backwards to protect the rights of innocents:

   If the U.S. person information isn't relevant, the data is suppressed. It's a technical term we use; we call it "minimized." The individual is not even mentioned. Or if he or she is, he or she is referred to as "U.S. Person Number One" or "U.S. Person Number Two."

   By contrast, sondjata's "evidence" mentions only eavesdropping on persons in the U.S. communicating with terrorists, and that accusation is unsourced hearsay (and misstates the law). Other incidents have nothing to do with wiretapping--they're complaining about naked-eye observations of anti-war demonstrations collected by NSA, which are neither private nor wiretapping. But I doubt it's happened, and if so, doubt the decision came from above.
   
   Of course, should credible evidence arise, some investigation might be warranted. But not too much, according to Chicago & Southern Airlines v. Waterman SS Corp., 333 U.S. 103, 111-12 (1948):

   The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

   So expect lawsuits such as the ACLU's to prompt an Administration denial of any domestic, non-terrorism espionage and thereafter swiftly be dismissed.

Conclusion: America is battling terrorists who already claimed the lives of three thousand civilians and almost that many soldiers. This is armed conflict, not Perry Mason. And the President has the primary responsibility, and Constitutional power, to defend America--if need be via warrantless national security wiretaps. The fact that such communications may transit to/from the U.S. heightens the danger and elevates the need for intel. Even without the knowledge or consent of any other government branch.

sondjata says the NSA program needs a FISA warrant to tap citizens or residents. The law simply doesn't say that. I expect the courts will agree. If voters such as sondjata don't, their remedy is electing a 'don't defend America Democrat' in three years' time.

More:

MaxedOutMama:

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?

Still More:

Rich Lowry at National Review Online:

Democrats want to portray the FISA regime as readily stretched to encompass the spying program in order to accommodate their NSA Straddle. It allows them to denounce the program as flagrantly illegal, while supporting the program in theory, because with a little cover from FISA, it would be perfectly legal. Would that it were so easy. If the NSA program is compatible with FISA, surely the administration would avail itself of that law. It hasn't been reticent about obtaining FISA warrants, the number of which has jumped since Sept. 11.

To obtain such a warrant requires a showing of probable cause that the person to be monitored in the U.S. is a member of a terrorist group. There are two reasons for the administration not to go this route with the NSA program. One is speed. It takes time to assemble the warrant application and get the official sign-offs. The other is that the evidence for a showing of probable cause might not exist. If a member of al Qaeda calls someone, it doesn't necessarily make him a terrorist. The administration is monitoring the call anyway, and if evidence shows up to support a finding of probable cause, presumably then it will get a FISA warrant on the call's recipient.

___________________

¹ Further, sondjata's argument that the AUMF itself is proof the President didn't posses the authority before AUFM is both wrong (Congress can't limit inherent Article II powers) and proves too much (since it suggests that the AUMF does grant such authority).

² sondjata's right on the revocation of citizenship issue.