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Domestic Surveillance Program defended
Posted by: Jon Henke on Friday, March 03, 2006

Attorney General Alberto Gonzales has released a letter [pdf] sent to the Senate Judiciary Committee detailing the administration's argument for the domestic surveillance program. Volokh Conspirator Orin Kerr observes...
Among the more interesting tidbits: The NSA surveillance program was authorized by the President very soon after 9/11. Specifically, it had already been authorized by the time the President signed the Patriot Act into law on October 26, 2001.

Also pretty interesting: The Gonzales letter gives a very strong hint that the initial legal justification for the NSA program within the Executive Branch was mostly a strong Article II claim of inherent power, and that the AUMF argument that the Administration is relying on now did not provide the primary legal basis for the program when it was enacted.
So, the fundamental administration argument is that the President has inherent authority to do domestic surveillance for security reasons, and the AUMF argument was mostly just a beard — a post-Hamdi, post-hoc rationalization thrown against the wall to see if it sticks. These are our legal principles. If you don't like them, we've got others!

Another section of Gonzales' letter should disabuse supporters of another talking point...
Senator Feingold asked, "[D]o you know of any other President who has authorized warrantless wiretaps outside of FISA since 1978 when FISA was passed?" [...] If the question is limited to "electronic surveillance" as defined in FISA, however, we are unware of any such authorizations.
As Glenn Greenwald points out, this should cause intellectually honest people to "immediately cease propagating the myth that 'Clinton and Carter did it, too.'" Actually, I think intellectually honest and informed people stopped propogating that myth long ago. Those who didn't, weren't.

Finally, via Greenwald, Anonymous Liberal points out another contradiction in the administration's assorted arguments...
If you bother to take even a cursory glance through the text of the USA Patriot Reauthorization Act ... you'll notice right away that the bulk of it is devoted to various amendments to FISA, the very statute that the president now claims he has the authority to disregard at will.
If the President already has the inherent authority to do anything he deems necessary, why is the reauthorization of the Patriot Act so vitally important?
 
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So, the fundamental administration argument is that the President has inherent authority to do domestic surveillance for security reasons ...
No. This WAS NOT "domestic surveillance".
...another contradiction in the administration’s assorted arguments...
When making legal arguments, its typical to make arguments that may contradict one another. The classic defense is to charges of breaking property someone loaned you is: "You never gave the pot; The pot was broken when I received it; The pot was fine when I gave it back to you."
If the President already has the inherent authority to do anything he deems necessary, why is the reauthorization of the Patriot Act so vitally important?
Whether you agree with the President or not, the argument is not that he can do anything he wants, but that in the realm of enemy surveillance his powers derive not from Congress but from the Constitution. Even is this is wrong, the Administration recognizes that not all the tools necessary to fight terrorism are available through the use of its Constitutional powers, and that Congress must authorize particular actions, escpecially within the US.
 
Written By: MichaelW
URL: http://
No. This WAS NOT "domestic surveillance".
It was surveillance that included domestic US persons. That’s domestic surveillance. You can quibble about the promises the administration makes about the genesis of the calls — just terrorists, we pinky-swear! — but if it includes domestic persons, it’s domestic surveillance.
When making legal arguments, its typical to make arguments that may contradict one another.
That doesn’t really sound like a defense of the administration. The administrations argument is post hoc rationalization. They’re trying to cover their bases.
Whether you agree with the President or not, the argument is not that he can do anything he wants, but that in the realm of enemy surveillance his powers derive not from Congress but from the Constitution. Even is this is wrong, the Administration recognizes that not all the tools necessary to fight terrorism are available through the use of its Constitutional powers, and that Congress must authorize particular actions, escpecially within the US.
Either the administration thinks these fall within the Executives constitutional powers, or it thinks the Executive requires explicit legal authority to do this. It cannot be both.
 
Written By: Jon Henke
URL: http://www.QandO.net
It was surveillance that included domestic US persons. That’s domestic surveillance. You can quibble about the promises the administration makes about the genesis of the calls — just terrorists, we pinky-swear! — but if it includes domestic persons, it’s domestic surveillance.
These were international phone calls and electronic messages, none of which were intercepted within the United States. That’s a curious definition of "domestic."

And do you have any clue just how many communications this would include? Narrowing down the scope of those transmissions that were actually paid any attention is a necessity merely by virtue of the fact that the volume of traffic is unfathomably large. Just one message crosses scores of international (i.e. outside the U.S.) portals, and is picked up in its entirety each and every time. Accordingly, there is a great deal of redundancy in what is intercepted. The point is, intercepting messages that are irrlevant is more than just a huge waste of time. It requires resetting parameters that are not easily set. This isn’t a Google search of transmissions — it is much, much more involved than that.
That doesn’t really sound like a defense of the administration.
It’s not meant to be. I was just pointing out how legal arguments are made and that they are often contradictory.
The administrations argument is post hoc rationalization. They’re trying to cover their bases.
Every legal defense is a post hoc rationalization.
Either the administration thinks these fall within the Executives constitutional powers, or it thinks the Executive requires explicit legal authority to do this. It cannot be both.
From a legal defense standpoint you’re just wrong on this, Jon. Holding seemingly contradictary rationalizations for past behavior is common.

As a practical matter, I think you’re right on, however. And from what I understand the Administration has always taken the approach that the NSA surveillance was an inherent power. When faced with legal challenges all the possible defenses of the action are raised, but that doesn’t negate what the Administration thinks is its best argument (i.e. inherent power). They could be 100% wrong in that argument (and I’ve read more than one cogent attack on it), but subsequent defenses don’t undermine it in the legal realm.
 
Written By: MichaelW
URL: http://
For someone making a big deal about "intellectual honesty" you’re playing kind of fast and loose here, Jon.
 
Written By: Charles Martin
URL: http://
These were international phone calls and electronic messages, none of which were intercepted within the United States. That’s a curious definition of "domestic."
Nonsense. FISA does not cover non-domestic surveillance. The Adminstration has admitted the illegal spying is covered by FISA; it simply has argued first that it has inherent authority to violate FISA, or in the alternative, that the AUMF supersedes FISA.

If the calls were not intercepted domestically — as any court would understand that to mean — FISA would not apply at all, Bush would have just said that, and this whole debate would not he happening.
 
Written By: Mona
URL: http://
Your wrong Mona. Go back and do your research. Start with the NYT piece that broke the story.
 
Written By: MichaelW
URL: http://
From the original NYT piece by Risen and Lichtblau:
Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.
FISA warrants are still sought for domestic communications:
Administration officials are confident that existing safeguards are sufficient to protect the privacy and civil liberties of Americans, the officials say. In some cases, they said, the Justice Department eventually seeks warrants if it wants to expand the eavesdropping to include communications confined within the United States.
As for how the Administration has handled this, it certainly isn’t the first time they’ve screwed up in dealing with the media and getting control of a story. They seem to have this problem of acting guilty when they’re not (see, e.g., the infamous "16 words"), and digging in when they’re just plain wrong (see, e.g., Harriet Miers, steel tariffs, etc.).
 
Written By: MichaelW
URL: http://
The bulk of the ’domestic spying’ was done on call electronically routed through the US with non-domestic individuals on both ends.

Atleast that’s the Volokh Conspiracy’s interpretation from Risen’s book.
http://volokh.com/posts/1136361964.shtml

If that is correct and factor out those calls that only had a US telecom as their carrier with a foreign person on both ends, and the number of warrantless searches isn’t dramatically out of step with what has been happening for years.
 
Written By: John
URL: http://
I think the only truly "intellectually honest" position to take here is admit that the whole question is a legally gray area. (Something Jon won’t do.)

It is impossible for any legislation to fully anticipate all future applications and issues. This is why we have the courts - to have the final say and resolve disputes on interpretation. And sure enough, the issue is moving to the courts to decide - just as it should be. And if the courts decide the Adniminstration is wrong, I fully expect they’d comply with this ruling.

I think what exonerates the Administration from charges of malfeasance is the fact that the NSA program was thoroughly vetted by lawyers and the Justice Department, and then shared with select members of Congress of both parties. If they felt they were breaking the law, they surely wouldn’t have gone to these lengths.
 
Written By: equitus
URL: http://

 
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