Editore"s Note
Tilting at Windmills

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January 15, 2009

ABOUT THAT FISA COURT RULING.... There's been some talk today that the FISA court has endorsed the notion that the president has the authority to engage in warrantless wiretaps. That's not what happened today, and the details matter.

A federal intelligence court, in a rare public opinion, issued a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a specific court order, even when Americans' private communications may be involved.

The court decision, made in August 2008 by the Foreign Intelligence Surveillance Court of Review, came in an unclassified, redacted form. [...]

The FISA court ... found that the Protect America Act did not violate the Constitution because the Fourth Amendment, which prohibits unreasonable searches and seizures, contained an exception for the collection of foreign intelligence information.

The opinion did not directly rule on the legality of the once-secret operation authorized by President Bush between October 2001 and early 2007, which allowed the National Security Agency to eavesdrop on the international communications of Americans suspected of ties to terrorists. The disclosure of the program's existence in The New York Times in December 2005 set off a national debate on wiretapping, privacy and the limits of presidential power. Critics charged that Mr. Bush had violated a 1978 law requiring that the government obtain a court order to listen in on Americans' communications.

The New York Times originally reported that the FISA court's ruling offered "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." But based on the additional reporting, that's just wrong. The decision has nothing to do with the president's inherent authority, and everything to do with Congress' ability to shape surveillance law, giving the White House far more authority than it was previously allowed.

Put another way, the case was about the legality of the Protect America Act. It cleared the court's examination. But as A.L. explained, this doesn't lend "credence" to the administration's legal arguments at all.

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 activities, 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.

Several far-right blogs insisted today that Bush has been "vindicated" and was "right all along." That's simply not what happened.

Steve Benen 3:35 PM Permalink | Trackbacks | Comments (21)

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Several far-right blogs insisted today that Bush has been "vindicated" and was "right all along."

To be joined by the WSJ editorial page tomorrow and assorted right-wing OpEd mouthpieces in the NYTimes and WaPo no doubt.

Posted by: Ugh on January 15, 2009 at 3:39 PM | PERMALINK

How could we ever expect right-wingers to get it right if they refuse to look at the facts?

Posted by: freelunch on January 15, 2009 at 4:04 PM | PERMALINK

Perhaps I'm the only one who had this reaction, but I don't see any " exception for the collection of foreign intelligence information" in the Fourth Amendment. Here's the entire text:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

It seems to me that you can only find an exception here if you argue that warrantless "foreign intelligence information" collected from US residents is either reasonable or can be Constitutionally carried out withour a warrant.

If I were a "strict constructionist" (which I'm not, particularly, but there are limits to the looseness with which I think one can construct things), I'd suggest that the Fourth Amendment requires a warrant, supported by a probable cause oath or affirmation to a judge of relevant jurisdiction, for each and every person whose communications are being intercepted. Oh, and I'd also want that oath to indicate what we're looking for...not just that we think we ought to be looking.

Posted by: Donald A. Coffin on January 15, 2009 at 4:12 PM | PERMALINK

oonald is right. The fourth amendment does not contain an exception for the collection of foreign intelligence information. It does not mention foreign intelligence at all, and this fact alone is supposed to mean it is not covered. It's like the drug exception and the child molester exception in that we exclude anything that seems evil enough to us.

Posted by: anandine on January 15, 2009 at 4:17 PM | PERMALINK

Several far-right blogs insisted today that Bush has been "vindicated" and was "right all along."
-----
They would have had the same things to say if they were "reacting to" watching Bozo the Clown re-runs all of the last decade, too.

In fact, the only reason I think they weren't doing just that is that I don't think the re-runs were available.

Posted by: That's a Bozo No-no! on January 15, 2009 at 4:20 PM | PERMALINK

It's always helpful to read the actual decision, rather than rely on reporters' or bloggers' summaries, which are often misleading.

Here, the court squarely addressed the petitioner's claim that there is no exception to the Warrant Clause of the 4th Amendment for foreign intelligence gathering. "The question, then, is whether the reasoning of the special needs cases applies by analogy to justify a foreign intelligence exception to the warrant requirement for surveillance undertaken for national security purposes and directed at a foreign power or an agent of a foreign power reaonably believed to be located outside the United States." In re. Directives, United States Foreign Intelligence Surveillance Court of Review, No. 08-01, slip op. at 14-15 (Aug. 22, 2008). The court concluded that there is such an exception to the warrant requirement. Id.

The opinion goes on to further reject the petitioner's argument that any such exception can only apply where the "primary purpose" of the surveillance is foreign intelligence surveillance. The court held that it is sufficient if that is a "significant purpose" of the surveillance, id., so long as the surveillance "involves some legitimate objective beyond ordinary crime control," in this case, "garnering foreign intelligence." Id. at 16.

Now discuss among yourselves.

Posted by: DBL on January 15, 2009 at 4:35 PM | PERMALINK

Also, having concluded that a search warrant is not required for foreign intelligence surveillance, the court went on to hold that the surveillance program authorized by the Protect America Act was not an unreasonable search under the 4th Amendment. Id. at 28.

Posted by: DBL on January 15, 2009 at 4:40 PM | PERMALINK

I'm just going to rely on our resident legal experts on this one, rather than have my ass handed to me against on Constitutional matters.

Posted by: doubtful on January 15, 2009 at 4:47 PM | PERMALINK
The FISA court ... found that the Protect America Act did not violate the Constitution because the Fourth Amendment, which prohibits unreasonable searches and seizures, contained an exception for the collection of foreign intelligence information.

That would be a patently ridiculous finding, and its not what the court held. The ruling says that the warrant clause of the Fourth Amendment (not the protection from unreasonable searches and seizures) has an exception for gathering foreign intelligence information, and that the protection from unreasonable searches and seizures in the 4th Amendment applies fully to foreign intelligence gathering, but did not prohibit the action under the Protect America Act, because it was not unreasonable.

One can certainly debate the validity of the actual holding in the case, but you've got to start with what was actually held, not a ridiculous reading by the Times which demonstrates less reading comprehension than one would expect of the average college student.

Posted by: cmdicely on January 15, 2009 at 5:07 PM | PERMALINK

Several far-right blogs insisted today that Bush has been "vindicated" and was "right all along."

To be joined by the WSJ editorial page tomorrow and assorted right-wing OpEd mouthpieces in the NYTimes and WaPo no doubt.

....followed by the cable news gasbags within the week, and inside a month it'll be conventional wisdom. It's the right-wing's Tinker-toEvers-to-Chance.

Posted by: Gregory on January 15, 2009 at 5:30 PM | PERMALINK

"Barack Obama, then a United States senator, was highly critical of the presidential wiretapping power claimed by Mr. Bush, and threatened to filibuster the final bill. But he ultimately voted for it, angering some of his liberal supporters."

Quick study. Several far-right blogs insisted today that Obama has been "vindicated" and was "right all along."

Posted by: tao9 on January 15, 2009 at 6:59 PM | PERMALINK

Several far-right blogs insisted today that Bush has been "vindicated" and was "right all along." That's simply not what happened.

You are incorrect. Because there is a foreign intelligence exception to the Fourth Amendment, nothing in the Constitution bars the operation of the President's inherent authority to conduct foreign intelligence. That is what the ruling says and that is a vindication.

Posted by: Jack Smith on January 15, 2009 at 7:03 PM | PERMALINK
Because there is a foreign intelligence exception to the Fourth Amendment, nothing in the Constitution bars the operation of the President's inherent authority to conduct foreign intelligence. That is what the ruling says and that is a vindication.

No, the ruling says that there is a foreign intelligence exception to the warrant clause of the Fourth Amendment, which makes the action of the executive branch carried out under the Protect America Act, which has since lapsed consistent with the law at the time.

The ruling did not reach any questions of the inherent powers of the President, because that issue was not before them; the issue was the action under a law passed by Congress which has since been sunsetted under its own terms.

Posted by: cmdicely on January 15, 2009 at 7:11 PM | PERMALINK

cmdicely,

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.

Your counterarguments are really piss poor.

Posted by: Lane Yarley on January 15, 2009 at 7:39 PM | PERMALINK

Sort of a non-ruling. The real issues are the reporting on suspect NSA tapping of all AT&T broadband traffic inside the US. Was this done under PPA? Or FISA?

Be careful what you say is legal - it will be spying on you next!

Posted by: Glen on January 15, 2009 at 9:33 PM | PERMALINK
... the President had inherent authority to conduct foreign intelligence, ...

Posted by: Lane Yarley on January 15, 2009

First, the President doesn't conduct 'foreign intelligence'. You conduct 'foreign policy' or 'foreign intelligence surveillance' or somesuch.

The President has no 'inherent authority' to do anything. We have a limited government with all the Powers owing to authorization from the People. The President has Duties and Powers assigned to him.

Do you mean that with 'inherent authority' the Constitution assigns certain duties to the President in large abstract terms and they must therefore have certain Powers to execute those duties? Even in those instances there are details outlined by Law or at least some kinds of tradition of what's 'normal' related to the execution of those Duties.

Spying on the American people isn't part of the President's Duties. If you think the President's Duty to defend America requires this kind of spying then you should look to the Law which specifies in more detail what the President's Duty to defend the country requires (such as minimizations) or disallows. That's where FISA comes into play. There is no getting around FISA as a clarification of precisely where the President's Duties to defend the nation begin and end.

Assuming all Law can be set aside because the President is CiC is just nonsense and UnAmerican. We don't believe in dictators or monarchs around here -- and any Republican who accepts that is a traitor to America.

Posted by: MarkH on January 15, 2009 at 10:22 PM | PERMALINK

The President has no 'inherent authority' to do anything.

This is just wrong.

First, the President doesn't conduct 'foreign intelligence'.

How's that OCD medication working for you?

[sockpuppeting won't be tolerated. choose a handle and stick with it or future posts will be deleted - mod]

Posted by: Taylor Martins [Jack Smith] on January 16, 2009 at 12:13 AM | PERMALINK

It will be amusing to watch all these closet Royalists who insist that Bush has magical "inherent authority" powers and must be treated as a king (and therefore be given a pass from his sworn pledge to defend and protect and comply with the Constitution) as they twist their heads into pretzels trying to deny the same kingly authority to our new President.

Posted by: melior on January 16, 2009 at 12:15 AM | PERMALINK

It will be amusing to watch all these closet Royalists who insist that Bush has magical "inherent authority" powers and must be treated as a king

I am no closet royalist. Nor am I arguing that Bush is a king. But inherent authority arguments have a long tradition in American government and they have nothing to do with monarchy. I am also not a sock-puppet. Lane and I live together. Thanks for the hetereosexism.

Posted by: Taylor Martins on January 16, 2009 at 12:24 AM | PERMALINK
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.

Certainly, some people believe that to be the case. Whether or not it is is irrelevant to the Court decision, the President's "inherent" authority was not an issue raised by the case or one on which the Court ruled. What was challenged was the authority of the President given the existence of the PAA to conduct the surveillance without violating the Constitution; the Court held that the PAA and the President's actions under it were Constitutional. Any "inherent" powers the President might have to conduct foreign intelligence surveillance in the absence of statute law or in opposition to such law are simply irrelevant to the case that was before the Court.

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.

No, one could not, fairly, read the decision that way since that question was neither answered nor even presented.

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.

If one assumes that such a power exists at all (which this ruling does not address), the ruling still would not support that the power was not constrained by the reasonableness clause of the Fourth Amendment, nor would it, contrary to your suggestion, justify the claim that any action by the President under such "inherent power" was outside was within the scope of the exception to the Warrant Clause. Finding that the foreign intelligence surveillance interests of the government create an exception to the Warrant Clause into which this Congressionally authorized surveillance fit is not saying that all foreign intelligence, regardless of the law, is outside the parameters of the Warrant Clause.

Note that the Warrant Clause itself is a limitation on the conditions in which warrants can be issued, it does not expressly mandate them; the reading of a mandate for warrants that applies generally is an application of the warrant clause read alongside the reasonableness clause, so warrant clause exception are universally bounded by reasonableness, and authorization, or not, by legislative authority has been found, in many areas, to be a factor expressly relevant (though not necessarily dispositive, in either direction) on the matter of reasonableness.

To read anything in support of the "inherent authority" argument into this case is wishful thinking.

Posted by: cmdicely on January 16, 2009 at 2:32 PM | PERMALINK

**They would have had the same things to say if they were "reacting to" watching Bozo the Clown re-runs all of the last decade, too.**

Ummm. They were. For most of the decade.

Posted by: GRM on January 17, 2009 at 1:15 PM | PERMALINK




 

 

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