In order to overturn the system established by FISA in 1978, and bring the NSA back into domestic wiretaps without court approval, administration lawyers have issued a series of secret legal opinions, similar to those written in support of the harsh interrogation tactics used on detainees captured in Iraq and Afghanistan. The Bush administration legal opinions that supported the use of harsh interrogation techniques on al Qaeda detainees have, of course, proven controversial, drawing complaints from allies, objections from civil liberties advocates, and court challenges. The administration faced its first serious legal rebuke in June 2004 when the U.S. Supreme Court rejected the administration's effort to hold "enemy combatants" without a hearing. The court warned that "a state of war is not a blank check for the president." The same could be said about the Program. Yet the NSA domestic spying operation has remained secret, and so the legal opinions and other documents related to the NSA program are still classified. The administration apparently has several legal opinions to support the NSA operation, written by lawyers at the White House, the CIA, the NSA, and the Justice Department. They all rely heavily on a broad interpretation of Article Two of the Constitution, which grants power to the president as commander in chief of the armed forces. Relying largely on those constitutional powers, Congress passed a resolution just days after the September 11 attacks granting the president the authority to wage a global war on terrorism, and Bush administration lawyers later decided that the war resolution provided the legal basis they needed to support the NSA operation to eavesdrop on American citizens.The President as King. Like I said. ---------------------------------------------------- Orin Kerr apparently has gotten a copy of James Risen's (Risen is the NYTimes reporter who, along with fellow Timesman Eric Lichtblau, broke the NSA warrantless surveillance story) book State of War: The Secret History of the CIA and the Bush Administration, and someone seems incredibly off base on FISA. Kerr says:
According to Risen, the key to the new program is a shift in telecommunications technology in recent decades that has made U.S. networks the carriers of lots of international telephone and e-mail traffic.
In addition to handling telephone calls from, say, Los Angeles to New York, the switches also act as gateways into and out of the United States for international telecommunications. A large volume of purely international telephone calls -- calls that do not begin or end in America -- also now travel through switches based in the United States. Telephone calls from Asia to Europe, for example, may go through the United States-based switches. This so-called transit traffic has dramatically increased in recent years as the telephone network has become increasingly globalized. . . . In fact, it is now difficult to tell where the domestic telephone system ends and the international network begins.
In the years before 9/11, the NSA apparently recognized that the remarkable growth in transit traffic was becoming a major issue that had never been addressed by FISA or the other 1970s-era rules and regulations governing the U.S. intelligence community. Now that foreign calls were being routed through switches that were physically on American soil, eavesdropping on those calls might be a violation of the regulations and laws restricting the NSA from spying inside the United States.
Nooooo. Eavesdropping on those calls absolutely would NOT be a violation of FISA. This is remarkably clear, as Kerr notes:
Okay, so now let's take a look at the legal questions again. Recall that FISA prohibits "electronic surveillance," defined in relevant part as follows by 50 U.S.C. 1801(f):
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. . . .
As I read this language, monitoring communications both sent to and received by individuals located outside the United States is not prohibited by FISA. This surveillance is technically domestic -- it occurs within the United States -- but it does not involve monitoring "a person in the United States." So if I'm understanding things correctly -- always a big "if" when you post after 2 am -- most of the program did not violate FISA.
The activities described clearly and unequivocally would NOT violate FISA for the reason Kerr states. What is not clear is why Kerr describes this as "most of the program" and, more importantly, this clearly is not the part of the program that has caused the trouble. Any simpleton can obviously see that the monitoring described does NOT violate FISA. No, the trouble is this:
If most of the program dealt with international calls, and didn't violate FISA, why would the program be designed so that it also tapped the calls of 500 or so [NOTE: It is unclear where Kerr gets this number from or whether it is accurate, a daily number or otherwise. The point is presumably it could 300 million for all we know.] people in the United States? If the communications tapped were wire communications, then tapping those communications inside the United States seems to clearly violate FISA under 1801(f)(2).
That is exactly the problem and it has ALWAYS been the problem. I am not at all sure what Kerr is confused about here. Some Right Wing folks have trouble dealing with the reality as clearly and expressly stated by Bush and Attorney General Alberto Gonzales - FISA has been deliberately violated.I'll discuss that on the other side.
The Government apparently didn't comply with FISA's procedures, which, when they apply, require the Government to go to a special, secret court, the Foreign Intelligence Surveillance Court, to get a order (somewhat, but not completely, resembling a traditional search warrant) allowing the surveillance. The Attorney General's remarks at a White House press briefing this week made clear that the Government is saying that another law satisfied Section 1809's "except as authorized by statute" carve-out--Congress's 2001 joint resolution authorizing the use of force against al Qaeda. The Attorney General said this pretty explicitly:
Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow--there is--unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.
Of course, the Bush position that the AUMF authorized warrantless domestic surveillance is preposterous, as even Conway and Kerr admit.
The truth is that the Bush Administration continues to argue the John Yoo position -- that War Makes Presidents Kings, and thus not bound by Congressional law. And that is not only a preposterous position - it is one of the most dangerous arguments ever made by a President. It is a direct assault on the Constitution.
While reasonable and intelligent conservatives like Professor Kerr struggle desperately to avoid this, it is inescapable -- President Bush has mounted a frontal assault on the Constitution.