Will media report facts undermining Bush administration's "reasonable basis" defense of spy program's legality?
SUMMARY: Numerous media outlets have cited Gen. Michael V. Hayden's defense of the Bush administration's warrantless domestic surveillance program while ignoring a Justice Department statement from June 2002 that contradicted Hayden's claims. Now that the statement has surfaced, will those media outlets now report the facts undermining Hayden's defense?
In the past two days, numerous media outlets have -- without challenge -- cited Gen. Michael V. Hayden's January 23 claim that the Bush administration's decision to bypass the Foreign Intelligence Surveillance Act (FISA) court to monitor domestic phone conversations is legal because the program has targeted only phone calls that the National Security Agency (NSA) has a "reasonable basis to believe involve Al Qaeda or one of its affiliates." Some media have repeated the more specific claim by Hayden, a deputy director for national intelligence and former head of the NSA, that the program is legal because the Fourth Amendment requires that the government have only a "reasonable basis" for the surveillance, rather than meet the stricter "probable cause" standard required for a FISA warrant.
But as attorney and blogger Glenn Greenwald noted on January 24, even as the administration was already bypassing FISA in 2002, the Justice Department issued a statement opposing proposed legislation by Sen. Mike DeWine (R-OH) to loosen the standard for such surveillance under FISA from "probable cause" to "reasonable basis." The administration argued in the statement that lowering the standard was likely unnecessary and possibly unconstitutional. In light of this revelation, which contradicts 1) Hayden's suggestion that the stricter "probable cause" requirement under FISA was inhibiting crucial intelligence gathering and 2) the administration's claim that Congress had tacitly authorized the administration's circumvention of FISA in conducting its secret surveillance program, will the media outlets that repeated Hayden's defense of the program's legality under the Fourth Amendment now report the facts undermining that defense?
The DeWine amendment
As Greenwald documented, DeWine introduced legislation on June 20, 2002, proposing "to modify the standard of proof for issuance" of FISA warrants from "probable cause to reasonable suspicion" in the case of warrants to conduct surveillance on "non-U.S. persons." From the Congressional Record:
S. 2659. A bill to amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion; to the Select Committee on Intelligence.
The "reasonable suspicion" standard that DeWine sought to establish is precisely the basis on which the Bush administration now claims to have determined the need to bypass FISA to spy on domestic phone calls without a court-ordered FISA warrant.
The Justice Department statement
Yet as Greenwald noted, when the Bush administration was asked to apprise Congress of its position on the DeWine bill, it issued a July 31, 2002, statement from James A. Baker, the Justice Department lawyer who oversees the Department's Office of Intelligence Policy and Review including "all applications for electronic surveillance." In that statement, the Justice Department opposed the DeWine bill over concern that the proposed change might not "pass constitutional muster" and expressed doubt that such a change was necessary: "It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require."
As Greenwald explained, the Bush administration's decision to issue the statement opposing the DeWine legislation indicates that the Department of Justice "was concerned that it might be unconstitutional to eavesdrop with a lower standard than probable cause even as the Administration was doing exactly that."
The fact that the bill would have limited the application of the lower standard to non-U.S. persons is significant. Whatever constitutional concerns DOJ had regarding the bill's application to non-U.S. persons presumably would have been compounded had the bill proposed to do what the Bush NSA program is reportedly doing: employing a lower standard, not for non-U.S. persons, but for U.S. persons -- that is, citizens and legal residents, entitled to the fullest protections under the Constitution.
From the Justice Department statement:
The Department of Justice has been studying Sen. DeWine's proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it.
The Department's Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a "reasonable suspicion" standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a "reasonable suspicion" standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions.
The practical concern involves an assessment of whether the current "probable cause" standard has hamstrung our ability to use FISA surveillance to protect our nation. We have been aggressive in seeking FISA warrants and, thanks to Congress's passage of the USA PATRIOT Act, we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require, and we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations. If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.
I assure [you] that we are moving expeditiously to answer these questions, which, of course, require input from agencies other than the Department of Justice that could be affected by the legislation.
Contradictions in the Bush administration's defense
Greenwald noted that, even though the DeWine amendment would have been "much less draconian than what the administration was already secretly doing" -- because it would have only lowered the standard for surveillance of non-U.S. persons -- the Senate did not approve the bill, holding hearings on the bill but not a vote. The Justice Department's opposition and the Senate's rejection of the bill undermine both Hayden's claim that the "probable cause" requirement under FISA was inhibiting crucial intelligence gathering and the administration's claim that Congress had tacitly authorized the secret surveillance program in any way, shape, or form:
This has extremely significant implications for the Administration's claims made yesterday through Gen. Hayden as to why it was necessary to bypass FISA. The Administration's claim that the "probable cause" component of FISA was preventing it from engaging in the eavesdropping it needed is the opposite of what it told Congress when refusing to support the DeWine Amendment. And its claim that Congress knew of and approved of its FISA-bypassing eavesdrop program is plainly negated by the fact that the same Congress was debating whether such changes should be effectuated and then refused to approve much less extreme changes to FISA than what the Administration secretly implemented on its own (and which it now claims Congress authorized).
Media reported Hayden's defense without challenge; will they now report contradictions?
Will the following media -- and others -- who repeated Hayden's claims without challenge now report the contradictions in the Bush administration's defense of the domestic surveillance program?
From the January 23 Associated Press article headlined "Bush Calls Surveillance Legal, Necessary":
Under the Foreign Intelligence Surveillance Act, government officials had to prove to a secretive intelligence court that there was "probable cause" to believe that a person was tied to terrorism. Bush's program allows senior NSA officials to approve surveillance when there was "reason to believe" the call may involve al-Qaida and its affiliates.
Hayden maintained that the work was within the law. "The constitutional standard is reasonable. ... I am convinced that we are lawful because what it is we are doing is reasonable," he said at the National Press Club.
From the January 24 New York Times article headlined "Administration Continues Eavesdropping Defense":
General Hayden took issue with the many news reports that have referred to a "domestic spying" program. Saying the program is not really domestic in nature, he emphasized that it was limited to calls and e-mail in which one end of the communication was outside the United States and which "we have a reasonable basis to believe involve Al Qaeda or one of its affiliates."
From the January 24 Washington Post article headlined "Campaign To Justify Spying Intensifies":
In addition, Bush and Hayden provided varying and sometimes contradictory descriptions of who has been targeted by the NSA spying. Bush said the program involved a "known al Qaeda suspect, making a phone call into the United States." Hayden said one of the ends of an international call must be overseas but did not indicate that the suspected al Qaeda link must be foreign.
At various points in his remarks, Hayden said the program targeted communications "that we have reason to believe are al Qaeda communications," that involve "someone we believe is associated with al Qaeda" or that "we have a reasonable basis to believe involve al Qaeda or one of its affiliates."
From the January 23 broadcast of CBS' Evening News:
JOHN ROBERTS (CBS chief White House correspondent): The White House is keenly aware of the political stakes over privacy issues, taking every opportunity to say it's mindful of civil liberties and that the program is not some massive drift net soaking up everyone's communications.
HAYDEN: We are going after very specific communications that our professional judgment tells us we have reason to believe are those associated with people who want to kill Americans.
ROBERTS: That is the argument President Bush hopes that people will buy into and see him as the protector-in-chief. And the White House believes if they do, they just might be able to turn this scandal into a virtue.
From the January 23 edition of Fox News' Special Report with Brit Hume:
JIM ANGLE (chief Washington correspondent): Sources tell Fox the fundamental reason FISA was insufficient for dealing with Al Qaeda is because it requires probable cause to show that the target of eavesdropping "knowingly engages in clandestine intelligence activities for or on behalf of a foreign power," which, of course, includes terrorists. But when U.S. intelligence agents capture or intercept phone numbers from key terrorists, such as Khalid Sheikh Mohammed or Ramzi Binalshibh, officials often cannot know whether the person on the other end is an agent or not until they listen to the calls. "You don't have enough information to show probable cause," says one knowledgeable source, "until you know what they are up to," which is why Hayden pointed to a different standard: "reason to believe."
HAYDEN: These are communications that we have reason to believe are Al Qaeda communications. A judgment made by American intelligence professionals, not folks like me or political appointees.
From the January 23, 10 a.m. ET edition of CNN Live Today:
DAVID ENSOR (national security correspondent): Well, the Bush administration sent a four-star general into the lion's den, so to speak, at the National Press Club today. General Michael Hayden, who was the director of the National Security Agency when President Bush first authorized this warrantless domestic surveillance, made a speech and answered questions, some of them rather blunt, rather hostile, questions like, "Is it open season on Arab-Americans?" Questions like, "Are you spying on anti-Bush groups in the United States?" General Hayden said that this is a very targeted program, a limited one, and one that monitors only international calls, only those that have a reasonable basis to believe involve Al Qaeda or one of its affiliates on one end or the other of the telephone call. Here's a sample of what he said:
HAYDEN [video clip]: This isn't a drift net out there where we're soaking up everyone's communications. We are going after very specific communications that our professional judgment tells us we have reason to believe are those associated with people who want to kill Americans. That's what we're doing.
ENSOR: Hayden said that in 2003, for example, there were 200 billion minutes of international telephone calls made by Americans to the rest of the world. He said there's just no way that the NSA could possibly monitor all those calls and stressed the targeted nature of this program. Now, he declined to discuss whether or not the legal justification needs to improved, whether or not there ought to be a change to where Congress or a judge should have to approve these kinds of surveillance. He simply said that, with today's telecommunications revolution going on, the FISA court, the court that has so far been set up to permit certain kinds of surveillance in the United States, simply, in his view, that law that set that up wasn't adequate for the job and this presidentially authorized program needed to be put in place to monitor any kind of Al Qaeda communications.
From the January 23 edition of CNN's The Situation Room:
ENSOR: General Michael Hayden, now the nation's number two intelligence officer, was head of the NSA in late 2001, when President Bush authorized it to listen in on certain international calls by Americans without a court warrant.
HAYDEN: This isn't a drift net out there where we're soaking up everyone's communications. We are going after very specific communications that our professional judgment tells us we have reason to believe are those associated with people who want to kill Americans. That's what we're doing.
ENSOR: Critics of the president's program include a former top White House counterterrorism aide.
RICHARD CLARKE (former National Security Council counterterrorism coordinator): I don't see any loophole that would authorize what he's doing. In other words, I think what they're doing is illegal.
From the January 23 edition of MSNBC's The Abrams Report:
DAN ABRAMS (host): In Washington, General Michael Hayden, a former head of the National Security Agency, told a news conference that the so-called FISA law that covered domestic eavesdropping before the 9-11 attacks couldn't do as much as the new program to protect Americans.
HAYDEN [video clip]: The president's authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited. Only international calls and only those we have a reasonable basis to believe involve Al Qaeda or one of its affiliates.
[...]
ANDREW C. McCARTHY (senior fellow at the Foundation for the Defense of Democracies and National Review contributor): I think you are laying out the issue fairly, but the thing I think is missing in all of this is why avoid the FISA court, if that is what's going on?
ABRAMS: Yes. Why?
McCARTHY: And I think the answer to that is it's wartime. And it may very well be that a probable cause requirement, which a court would have to find before it could authorize an interception under FISA, may not be appropriate for a wartime situation where our goal is not to investigate or prosecute people, but to prevent the next attack from taking place.
probably not. It's is the end of a "free" press and with it our democracy. "The Republic is dead. Long live the theocratic oligarchy that murdered it."
May its supports be proud of their part in the destruction of the United States of America.
Our Democracy is certainly in a sad state but it is far from dead! If the Dem's will only broadcast the insanely stupid statements made by Hayden about the 4th Amendment that I saw on Countdown tonight, we will prevail. ( Media Matters, please Post the Amendment conversation, especially the part where Hayden says that the NSA knows this Amendment better than anyone in Washington ) I sure hope the Dems jump on this with both feet! We need to make certain that this guy gets fired ASAP!
MR. HILL: Final question.
QUESTION: Jonathan Landay with Knight Ridder. I'd like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use --
GEN. HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure.
QUESTION: But the --
GEN. HAYDEN: That's what it says.
QUESTION: But the measure is probable cause, I believe.
GEN. HAYDEN: The amendment says unreasonable search and seizure.
QUESTION: But does it not say probable --
GEN. HAYDEN: No. The amendment says --
QUESTION: The court standard, the legal standard --
GEN. HAYDEN: -- unreasonable search and seizure.
QUESTION: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "we reasonably believe"; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, "we have probable cause." And so what many people believe -- and I'd like you to respond to this -- is that what you've actually done is crafted a detour around the FISA court by creating a new standard of "reasonably believe" in place in probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?
GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.
Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable.
QUESTION: (Off mike.)
MR. HILL: I'm sorry.
Thank you very much, General Hayden.
And with that, this proceeding is over. Thank you.
[END.]
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Amendment IV
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.
End Bold
I saw that video exchange on Countdown last night too between Hayden and a reporter. Hayden actually denied that "probable cause" even existed as words in the 4th Amendment of the Constitution. Duh!
I hope that the MSM will report the contradiction in claims by the Bush admin. that they had excuses to bypass FISA though they did not support amendments to FISA previously based on lack of Constitutional "muster".
MMFA is purposely stupid. The general argued why they operated outside of FISA and the constitutional grounds for doing so.
Devine's amendment was amending FISA, which the administration was having no problems with. They were unsure whether it was constitutionally possible to amend FISA and since they were using FISA with no problems, why bother.
Since the president has the constitutional right to operate outside of FISA, plus uses FISA for areas where he does not have the constitutional right, these are two different issues. Glenn's blog tries to blur the issue. MMFA tries to paint the fact that the Baker memo undermines Hayden's case, which it clearly does not.
"Devine's amendment was amending FISA, which the administration was having no problems with."
If by "having no problems with," you mean ignoring, and thus breaking the law, I guess you have a point.
"They were unsure whether it was constitutionally possible to amend FISA..."
You mean Congress couldn't change the law, because it might be unconstitutional? So the best course of action was to ignore the law altogether?
" ...and since they were using FISA with no problems, why bother."
But they weren't using FISA. You'd agree with that, right?
"Since the president has the constitutional right to operate outside of FISA..."
I guess you do. Thanks.
"...plus uses FISA for areas where he does not have the constitutional right, these are two different issues. Glenn's blog tries to blur the issue."
Wow, this is a new one. FISA applies to spying on Americans, except for those times when it doesn't, which is determined by...what? W's Magic 8-Ball?
Hey, here's a crazy idea: maybe it applies when the law says it does! And if you don't agree, you take it to court. Or amend it.
"MMFA tries to paint the fact that the Baker memo undermines Hayden's case, which it clearly does not."
The administration thought the FISA law was fine as it was, because they weren't going to follow it anyway. Is that it?
The fact that you wing-nuts don't care about your constitutional rights doesn't surprise me anymore: W has you so scared of your own shadows that you'd pretty much do anything Cheney wanted you to.
What continues to amaze me is your total lack of shame. What you've written above is obviously completely lacking in logic; a moderately smart 12 year-old could see that.
Yet you persist. It's astonishing.
Why? What's in it for you? What do you get out of having your rights trampled? You're not any safer - you do realize that, yes?
Or do you continue to look to Big Brother to shield you? Just take your soma, relax, and turn on Fox. It's OK, sonny, we'll keep the bogeyman away...
To LH's statement, "MMFA tries to paint the fact that the Baker memo undermines Hayden's case, which it clearly does not."
YOU say, "The administration thought the FISA law was fine as it was, because they weren't going to follow it anyway. Is that it?"
RESPONSE: Not exactly. They feared that if the standard was loosened from "probable cause" to "reason to believe", the entire FISA law would be declared Unconstitutional, as a violation of the 4th Amendment. With FISA's requirement of "probable cause", PLUS the necessity of obtaining a warrant, the law had been in place as Constitutional.
Obviously, the Administration wished to have the law in place -- with its reporting area SECRET -- so they could have "cover" to do what they wanted. Bush, with FISA in place, was free to LIE about his Administration ADHERING to it, i.e. "Don't fear the Patriot act, because ANY spying has checks and balances, and a court HAS to approve whatever we do. So don't worry."
In truth, he knew that NSA was paying NO mind to FISA ... it was in place as comforting MASK, to which Bush could point, and which showed how surveillance could be done LEGALLY. Remember, the Bush Administration KNEW what they were doing was illegal, which is why they put the FEAR of National Security into the New York Times, to get them to BURY the story for over a YEAR.
Interesting to note, even WITH the change to "reason to believe" as the standard, this modification of the FISA law would STILL require a warrant.
As president, if you Violate the 4th Amendment by NOT getting a warrant, you have broken the law and violated the Constitution, not to mention violating your oath of office swearing to UPHOLD the Constitution and take care that the LAW is followed.
Bush has committed impeachable offenses. Not once, but constantly. If we had a true Democracy, ruled by a Constitution and LAW, Bush would be impeached today. Since we are morphing into a monarchy, with "majorities" in the legislature and judiciary set to agree to every power grab (and violation of LAW) perpetrated by this Administration, we may well have lost our nation to tyrannical control.
"As president, if you Violate the 4th Amendment by NOT getting a warrant, you have broken the law and violated the Constitution, not to mention violating your oath of office swearing to UPHOLD the Constitution and take care that the LAW is followed. "
You know very well the president has article II rights and that there are circumstances where searches can be done without warrants so your premise is bogus.
Leatherhelmet:
We all know by now your "world view" is that you place all your trust in the "unitary executive".
Without question, without knowing WHAT he is doing, you support having no rights, if only the LEADER will promise to "keep you safe".
People react differently to FEAR. Some fold, some behave with heroism.
It's simply not fair for we on the Left, we Liberals, to JUDGE you based on OUR OWN beliefs. We believe in the Constitution, in equal rights, in CIVIL rights, in checks and balances, and in fully accountable government.
Since you believe only in a "unitary executive" with unlimited power, we do not look at issues from the same perspective. We, as a FREE people, cannot relate to your wish to be dominated, if only someone offers you the promise of "safety".
Perhaps some day, our FEAR will, like you, lead to our giving no value to America's FREEDOM, extended to ALL, and UNALIENABLE by powers of government.
Not today.
also means Congress cannot make laws infringing on the President's constitutional powers.
Liberty just not just mean freedom from our government but freedom from our enemies.
You refuse to protect the common man and your appeasement is a danger we cannot afford to take.
In all wars and protection of national security some liberties are given up. Here is an example of great national security gained with minimal amount of liberty lost.
For someone who proclaims not to like wars I've seen little from you that wants to protect us from attack.
In all wars and protection of national security some liberties are given up. Here is an example of great national security gained with minimal amount of liberty lost.
For someone who proclaims not to like wars I've seen little from you that wants to protect us from attack. --leatherhelmet
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How much has National Security been improved? How do yo measure that? How do you measure lost liberty and say, that's fine with me? Maybe we should all just trust the President. Is that your point?
How specifically has this program protected us from attack? Do you have info that the rest of us don't? Could you please share it with us?
Do we even know if this "Terrorist Surveillance" has led to arrests? If these people are terrorists, why don't we arrest them? Aren't there like a couple thousand of these people? Or are we spying on PETA? Yeah, I would feel much safer if we are doing that.
I am no lawyer, so I will open myself up witha legitimate question: Where in Article II of the Constitution does it read that the President has the power to do what President Bush is doing? I have read it over several times, and I just don't see it. Please quote me the part that give him this authority.
I'm curious too, I've heard that it has to do with the role of "Commander in Chief", but here's all it says about that;
"Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."
for the most part is generically written with body of law interpreting it. So you won't find FISA or NSA anywhere to be found. Here is some of the arguments:
[link to www.mercurynews.com]
Did you even read that page? It doesn't substantiate Bush's argument at all, only restates it.
So let me see if I get the basic idea...because Congress approved the vague "force" language in the AUMF, that is their approval for the CinC to ignore stated Congressional law. The presidential interpretation, even if based on no specific wording of a resolution, gives him the right to overrule established law. Is that about right?
giving both sides of the argument.
For now on I will link to Newsmax for you.
It is fair, it restates both positions. It doesn't justify anything like what you are arguing.
Now, what is it about Article II that makes you think Bush can ignore Congressional law based on his own interpretation of a resolution? Please explain.
It explains the position from someone with a legal background. There are some pretty informed people on both sides on the side, mmfa has a link to it.
Anonymous said... Where FISA applies, it calls for the executive branch to get court permission before it may listen — permission which can be withheld if a judge is not satisfied that the government has demonstrated "probable cause" that the target is an "agent of a foreign power" (a term of art that covers international terrorist organizations). The NSA, however, is conducting its surveillance on the authority of the president, not the federal judges of the Foreign Intelligence Surveillance Court established by FISA.
The president reiterated two basic arguments in support of the NSA program which have been posited by the Justice Department and administration officials. The first relies on the inherent constitutional authority of the president under Article II of the Constitution. The president is commander-in-chief of the armed forces and the constitutional officer singularly obligated to conduct foreign affairs and protect the American people from external threats. Consequently, federal courts have long recognized the president's inherent authority to conduct monitoring to protect national security — at least when a foreign threat is involved.
Critics argue that the passage of FISA has altered the constitutional field. That contention, however, has two insuperable obstacles. First, the Constitution cannot be altered by a statute — it is the supreme law of the land. This is why (as I argued on Monday), acts of Congress have long been subject to being held invalid if they violate the Constitution or attempt to modify its structure. Presidents used national-security surveillance authority for many years before there ever was a FISA. If presidents had that power in the first place because of Article II, Congress can do nothing to take it away.
Second, in 2002 — even after nearly a quarter century of FISA's operation — the Foreign Intelligence Court of Review (the highest and most specialized court ever to review a FISA case) indicated that presidents maintain inherent constitutional authority despite the terms of FISA. Thus, administration critics are simply wrong when they argue that compliance with FISA is the sine qua non of lawful eavesdropping in the national-security arena.
There is more but I ran out of posting space.
First off, I'm wary of any article that pushes the "2002 FISA appeals court" story.
[link to thinkprogress.org]
As for the "unconstitutional" nature of FISA, there are two problems with that argument. Did the pre-FISA actions happen without warrants? Assuming that they did have warrants, FISA complies with that action and the fourth amendment, and simply prevents Nixonian-style abuse. I fail to see what's wrong with that. Also, even if it is unconstitutional, Bush must have other options! He can call for a new law, a bill to replace the old system, whatever he needs to do. With a Republican congress and a sympathetic judiciary, why not address the problem?
and gnashing of teeth is over in the congressional hearings, there may be some Clintonesque rewriting of FISA.
However, it all boils down to what is constitutional and who has the power.
Even if Congress writes an enhanced FISA that tries to take the inherent powers away, that may be unconstitutional.
"Even if Congress writes an enhanced FISA that tries to take the inherent powers away, that may be unconstitutional."
If Bush really thinks that FISA is unconstitutional, then he should have said so (is he even arguing this now?), and tried to fix the situation. Apparently Baker didn't think it was, because he said the changes could make it illegal - which wouldn't make any sense if it was already unconstitutional.
The bottom line is that for any of your arguments to hold water, you are still relying on the AUMF's "necessary" phrase. The more Bush and Hayden amplify the rhetoric, the more precarious your position becomes. These are calls from Al Queda - if we know that's true, then why can't we go through FISA, which would surely grant the warrant on those grounds. This is targeted and focused surveillance - so it's not new technology, it's not picking up words from a network of surveillance, so there should be no difficulties with the FISA process again. This is a vital program - so if this information is vital, why take chances with the legalities? Why throw yourself into this messy, murky Constitutional debate? Why go around a law, which would have provided everything you claim you needed, increasing the chance of exposure (supposedly key to the program itself), and possibly tarnishing any evidence that might be gained in the process? It's not a question of expedience. It's not a question of capabilities. Neither of those concerns raise problems with FISA.
That's the key issue here, what on earth makes the circumvention of the law necessary? If Bush and Hayden are telling the truth, then there's absolutley no way to claim that it is, and so the AUMF aspect of the justification collapses.
Here is the hierarchy from highest authority to lowest:
1. President's inherent authority to order NSA to do surveillence which requires no warrants. 2. FISA court to do searches with warrants through FISA courts/rules.
You keep acting as if FISA is the sole authority, which they are not. I don't know where you keep getting that Bush thinks FISA is unconstitutional. The Baker memo said they did not want to make changes in FISA because the changes may be unconstitutional. Bush has no problem with FISA but his position is FISA is not applicable to the areas where his power is applicable.
"1. President's inherent authority to order NSA to do surveillence which requires no warrants. 2. FISA court to do searches with warrants through FISA courts/rules."
Interesting! If you (or the administration) are not going to claim that FISA is unconstitutional, then you are accepting FISA as a valid law. FISA is the only means, according to itself, for dealing with domestic surveillance. So there is no "2", only "1.FISA court". If its self-declared singularity as the means for electronic surveillance and its requirement for warrants are constitutional, then they must not conflict with inherent power (or else it would be unconstitutional, right?). So to claim that Bush has no problem with FISA but can choose when or when not to follow it is self-contradictory;if he really has "no problem" with it, then it disallows him to go around it at all, since it dictates he cannot do so. Further, according to your hierarchy, isn't Bush's power always applicable? So he has no problem with FISA, but it's never applicable, because Bush's power always is. If not, what criteria dictates the difference, where Bush does not have that power?
As for "twisting the issue", I'm doing nothing of the sort. The Administration is relying on the AUMF to justify the NSA program, but the "necessary" requirement is simply unexplainable. Their case, and yours, do not hold water.
I dont see it in the constitution. I read and reread article two and I dont see this inherent authority anywhere. I see where it says the president must take care the law is faithfully executed, I dont see any claim of an inherent right to decide for himself that he doesnt have to follow the letter of the law. That law is written and unequivicol. YOUR claim of some phantom inherent authority comes from your rectal database and is found NOWHERE in article two. President must follow the law, thats there, inherent authority to consider the law a suggestion, NOT THERE. Cough up the reference in article two that even remotely suggests this inherent right to do what article two explicitly says he CANNOT DO. That is ignore the law. You just keep saying it, inherent authority, wishing it were true, hoping to repeat it often enough it will magically become true. You can keep repeating it what you CANNOT do is make it true, ITS NOT THERE, the obligation to follow the law IS there.
The Supreme Court is the arbiter of what is unconstitutional and they have NOT said it is unconstitutional. There is NO place in article two that says the President can ignore the law or constitution. In fact it says the opposite. The argument LH made is so ludicrous its amazing. He seems to be saying that article two is vague and admits it doesnt say directly the president has the right to ignore the fourth amendment then says FISA is unconstitutional because it impinges on the Presidents ability to ignore the fourth amendement. In other words that FISA impinges on the presidents right that he ASSUMES is in article two somehow makes FISA unconstitutional. The argument doesnt rise to the level of absurdity.
the argument is sooo stupid the FISA court of Review agrees with it.
Please stop posting this debunked garbage. It is pathetic.
[link to thinkprogress.org]
Rather than actually answer the question being asked over and over, you're just going to be vague and TRY and step around it buy saying:
"...the inherent constitutional authority of the president under Article II of the Constitution. "
In various ways without actually being spceific about the inherent powers. Where in Article II does it say anything that would justify the President doing warrantless searches (eavesdropping) involving American citizens? Why not try using verbage from Article II and present your opinion rather than continually trying to just post others opinion? Is it that you really don't understand how Article II does this, becuase it doesn't?
has about 8 sentences. If you want to look it up do it yourself.
The constitution is interpreted. They don't have abortion in the constitution either do they? Yet the supreme court ruled it legal.
You have no idea what you are talking about Article two has four SECTIONS and 19 PARAGRAPHS. None of which can be interpreted as allowing Bush to treat the law or constitution as a list of suggestions.
Wake up. Your argument is stupid. Article 2, section 2 is the basis for all constitutional law regarding the president's inherent power.
[link to volokh.com]
Article II. The final argument is that Article II of the Constitution gives the President inherent authority to conduct such monitoring. The Administration introduced this theory in a supplemental brief filed in the FISA Court of Review: The President Has Inherent Authoritv to Conduct Warrantless Electronic Surveillance to Protect National Security from Foreign Threats.
In considering the constitutionality of the amended FISA, it is important to understand that FISA is not required by the Constitution. Rather, the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority. Both before and after the enactment of FISA, courts have recognized the President's inherent authority to conduct foreign intelligence surveillance. See, e.g., Butenko, 494 F.2d at 608 (grounding exception to warrant requirement in the President's Commander-in-chief and foreign-affairs powers; noting that the country's self-defense needs weigh on the side of reasonableness); Truong, 629 F.2d at 914 (citing the President's foreign affairs power as justifying an exception to the warrant requirement); cf. United States v. United States District Court (Keith), 407 U.S. 297, 308 (1972)(reserving the question whether the President's foreign-affairs powers justify exception from warrant requirement). Here is the brief filed: [link to www.fas.org]
And telling us that the Administration is CLAIMING this phantom inherent authority is not in any way bolstering your claim. We KNOW he is claiming as are you this chimera. What we are asking is WHERE in article two does it say he can ignore or violate the law. We know where it says he must faithfully execute the law, we dont know where it says, EXCEPT IF HE DOESNT WANT TO. See thats where we are confused. We know the fourth amendment demands court orders. We dont know where article two says unless the President really doesnt want to. There is no because I say so clause in article two. YOU have offered NO rationale based on article two, and we know why, there is no reading of article two that supports your spurious claim. That is why you just keep saying it over and over you are reduced to the conservative fantasy that if you say it often enough it will magically become true. Here is a clue you need desperatly. IT WONT
How can you continue to argue the warrants were unnecessary by the Constitution, when Bush himself has stated that's not the case?
"Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires-a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution."
Bush 04/20/2004 [link to www.vote-smart.org]
Good point! Now, someone will probably claim that those comments were just in the context of the Patriot Act. But the Patriot Act amended FISA, so it is relevant, and Bush mentioned that wiretaps need warrants on several other occasions as well, outside of discussing the Patriot Act.
This deals with the Patriot Act, which FISA is involved with.
Again, the Bush administration used FISA except in areas they felt they had inherent powers. Otherwise, they accepted FISA as is and did not request a change in the Dewine amendment.
I don't know how much clearer I can make that. The quote is 100 percent meaningless.
Your comment looks really ridiculous following a comment posted 3 hours earlier explaining how it is relevant and meaningful to the conversation. You've really got nothing. You either don't understand the arguments you're trying to parrot or they simply make no sense what so ever. Maybe it's both.
Leatherhelmet, allow me to commend you for whatever its worth to you. I have read through the thread and you have presented very informative credible evidence surrounding this issue. The relevant issues that you mentioned are precisely right and it would seem, easy to understand. You have NOT, from what I've seen, concluded one way or the other. Nothing can usurp the constitution. I have argued on another thread I think making many of the same arguments you're making. My position is, and I think yours would be the same, NO ONE KNOWS whether its legal or not. Until it goes to the Supreme Court, NO ONE can say yea or nay. I am amused at the verocity many around here have to somehow conclude this very complex constitutional question with absolute certainty in 5 minutes, with little or no understanding of the specifics. Anyway, I wanted to just compliment your arguments, the information that you provided to back those positions up and the manner you presented it. Nice Job!! Thanks!!
"You have NOT, from what I've seen, concluded one way or the other."
Really? So when he declares that Bush has precedence over FISA, that's not a conclusion? LOL!
LH is getting creamed here, unless he can make a valid point at least once. I suppose by right-wing standards, he's doing a great job though.
who uses sine qua non in their post. He must be right. I don't even know what that means.
Means something along the lines of without which not.
I guess I was making a bit of a joke. I have noticed that many people who have a weak prima facia argument (like the argument LH cut and pasted) usually resort to the baffle them with your BS mode of argument.
I don't really care for such high-fallutin' talk, myself. It is more of an effort to confuse the reader into thinking the author knows what he/she is talking about. I see this in the technical world all of the time.
I posted the response to Glenn Greenwald from his website but MMFA deleted it. Why, I don't know, it is clearly on topic.
Anonymous said... I think the dodge here that Hayden was alluding too and josh narins picked up on is that none of these warrantless searches were subject to the FISA and are permissible under a good faith interpretation of existing fourth amendment jurisprudence as either being conducted under exigent circumstances or because there was no reasonable expectation of privacy in the communications. I would agree with Glenn that this does not excuse violating the FISA, but actually FISA, by definition, only applies to "electronic survellience" which would otherwise require a warrant under the fourth amendment. So the argument is we oppose the DeWine amendment because we do not think it is constituional to lower the standard for issuing warrants, and we don't have a problem with getting warrants under FISA. The warrantless survellience does not fall under FISA because the fourth amendment does not require warrants for all searches in particular not those conducted under exigent circumstances in for communications in which there is no reasonable expectation of privacy.
Here is the defintion of electronic survellience from FISA: Electronic surveillance” means— (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;
You posted it on a different thread;the Ensor one.
International phone calls do not have a reasonable expectation of privacy?
I would say that is only true now that everyone knows the NSA is listening in.
It's really funny because Bush is claiming that these are phone calls from al Queda and their affiliates, but at the same time we're supposed to believe that their was no intent for privacy. What useful information could we possibly get from public communications?
All that exception means is that if you're standing in line at the DMV and you're talking through your speaker option on your cell phone so that everyone can hear both ends of the conversation, then there's no intent for privacy there. I can't even imagine under what circumstances we could get useful intelligence through a conversation of that nature. It's sort of easy to see why "anonymous" picked that name.
Thank you for the link.
It provided a great quote:
``We have long since made it clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens,'' Justice Sandra Day O'Connor wrote.
I am sure we can expect the same common sense from Alito. Right?... Anyone?
Rather than flag a comment, and ask for the removal of a series of posts, on the grounds that they do nothing but clutter up the thread with mindless, pointless, chatroom-style bickering...
...I'll just post this brief comment, and ask, why the heck do you argue endlessly with that poster? There was nothing worthwhile that I could see in their original post, nor in any subsequent one; what's the point to chatroom-style bickering that does nothing but clutter up a thread of comments on the MMFA item?
I won't tell you what to find interesting or worthy of comment if you do me the same favor. 'Kay?
There is NO because I said so clause in it. It DOES however say he shall take care that the laws are faithfully executed. So your assertion that he has article II powers that allow him to violate the fourth amendment are spurious and without merit. Perhaps the version of the constitution adhered to on Planet Wingnut has such powers but the one we know about here on Planet EARTH has NO SUCH PROVISION. Please try to visit our good planet. The REALITY might take some getting used to but its a fine place.
Regards misinformation surrounding the matter of the administration's 'warrantless surveillance' of U.S. citizens:
This item is so informative and well written, it should be read not only by those media outlets who so uncritically reported and commented upon Gen. Michael V. Hayden's defense of said surveillance, but by any and all who wish to stay on the leading edge of this evermore fascinating legal debate; a leading edge on which We the People wish our media were to be found; but instead an edge more likely to be found here, at Media Matters for America.
Excellent job, A.S. & J.S. and MMFA.
Regards the analysis of Gen. Michael V. Hayden's defense of the administration's 'warrantless surveillance' of U.S. citizens, as offered by Attorney Glenn Greenwald:
Mr. Greenwald's analysis [link to glenngreenwald.blogspot.com] is as timely and as important a use of the Internet for the causes of Justice and People's Democracy as I have ever seen, or can even imagine.
The swiftness with which this legal analysis has been posted on the internet (4:11 PM Tuesday, little more than 24 hours after Gen. Hayden's address to the National Press Club), is exceeded only by the force of it's argument; an argument which few at Justice could draft so quickly, and perhaps even fewer at the CRS, and certainly none in the media; a media to which We the People look for such insight as this, but which fail us in more cases than I can list; in as many cases as Media Matters for America can cite, with whatever resources they can use...
Attorney Glenn Greenwald being such a resource today, as counsel for the People, in the matter of their Constitutional Rights.
It's as good a job of finding the holes in an Officer's argument, as that time that Lt. Barney Greenwald 'torpedoed' Capt. Queeg...
...of course, it's much more difficult to do in real life, there being no one to author your argument, except yourself.
(would you like some strawberries to go with your steel balls, Mr. Hayden?)
On Monday, we had the 'Reasonable Basis' defense trotted out and propped up; presented by Gen. Michael V. Hayden, after many meetings of the administration's minds; after many man-hours, many cigarettes, many cups of coffee; and after a blizzard of what must have been millions of words, they settled on...
'Reasonable Basis'.
On Tuesday, we had Attorney Glenn Greenwald enter the (Internet) Court of Public Opinion, on behalf of the People, in the matter of their Fourth Amendment Constitutional Rights; and in an opening statement that I WordCount to be about 1,400 words long, he lays flat the entire 'Reasonable Basis' defense; and in little more than 24 hours, appeared to have undone all the bull that went into the bull about a 'Reasonable Basis'.
On Wednesday, the President spoke before the NSA (yes, the same NSA of which Gen. Hayden is a former Director of; the same NSA which infringes upon the People's Fourth Amendment Constitutional Rights), and the President spoke, by my WordCount, 1,138 words.
1,138 words, and nowhere to found among them were the words 'Reasonable Basis'; as a matter of fact, nowhere to be found in the President's talk to the NSA were either of the words 'Reasonable' or 'Basis', in any sense or combination; which is to say, searching the President's words today for a 'Reasonable Basis', I found none.
This is the definition of what it is, when we sometimes use the expression...
To Lay Flat the Argument of the Opposition
...which is to say that, Attorney Glenn Greenwald laid flat the argument of the former Director of the NSA, Gen. Michael V. Hayden.
And appears to have done so, on behalf of the American People, and in defense of their Fourth Amendment Constitutional Rights.
In little more than 24 hours, and by way of the Internet.
(Did I forget to mention how impressed I am by this?)
The general said directly that the fourth amendment doesnt say reasonable cause, he was wrong, as YOU are wrong. You can also continue to ASSERT, directly from your rectal database that the President has inherent powers that not only are NOT in the constitution but which are strictly FORBIDDEN him in article two of the constitution for the rest of your life. It isnt true and wishing wont make it so. You just say what you wish were true is true. You have lost all touch with reality. The President is obligated as article two makes clear to follow the law and be bound by the law. YOU may want the president to be Pharoah, he isnt.
Just wait until the Congressional hearing start and we will see what I am saying is true.
You can hide your head in the sand from all the case law regarding the president's inherent power but you learn the hard way in a few short days.
But since all things are political, expect the democrats to scream and yell and then cave for fear they will look weak going into the elections. Expect the Bush administration to ask Congress to tweak FISA and we will be right back where we are now. Unless some court case goes to the Supreme Court expect Bush to give slightly but will retain his constitutional inherent power.
Inherent rights are given to the people and to states. NOWHERE in the constitution is there inherent powers mentioned for the president. His powers are enumerated by article two. It doesnt say and whatever else he wants to do. Cough up some of this extensive case law and we will see if it applies. As of now you are trying to give Bush a get out of jail free card to do ANYTHING HE WANTS. IF you say this power is just inherent because he says so, what power is denied him? Yes, Bush says, Ikilled, cooked and ate a baby live on CNN, it is within my powers inherent to fight really bad guys to keep up my protien intake so the terrists dont win. This will NOT fly. IF FISA was unconstitutional which no president has maintained since 1979. Bush had the obligation to take it to the SC and getting it declared unconstitutional. Not to ignore it because of his inherent baby eating right to be above the law. You are still just repeating a canard you have not and CANNOT back up by coughing up exactly WHERE in article two this phantom inherent right is even obliquely refferred to. Repeating your premise ad naseum does not give it any additional credibility. No matter how often you repeat it, it will NEVER, magically become true. It only shows how incredibly weak your argument IS. IF it had ANY real substance by now you could have substantiated it which you havent even TRIED to do. You are embarrassing yourself
Unfortunately, FISA covers this particuliar area that the President was "operating" in. Please the President is not above the law. He broke the law. The White House should be punished. I don't know about you but I am not giving up on the Constitution as Republicans such as yourself are doing although you claim to orginalists. Orginally the Constitution was meant to protect the Republic, not install a king as your ilk seek to do.
Your article unfortunately fails to point out one of the most misleading and extremely important parts of the administration's arguments in support of its illegal spying scheme. General Hayden and others have repeatedly stated that "probable cause" is only a FISA requirement, not a Constitutional requirement. This is simply wrong. As Glenn Greenwald points out in his post, probable cause is a specific requirement for issuance of a warrant under the Fourth Amendment to the Constitution. Thus, it is the FISA standard that is the Constitutional standard, and this was one of the reasons that the DOJ questioned the constitutionality of the proposed DeWine amendment to FISA. General Hayden's insistance thata so-called "reasonable basis" is the only requirement for issuance of a warrant under the Fourth Amendment is either incredibly ignorant or a deliberate and knowing lie made in a blatant attempt to mislead the public.
Here is the most pertinant excerpt from the press conference...
-------------------------------------------
QUESTION:"...[M]y understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use --
GEN. HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure.
QUESTION: But the --
GEN. HAYDEN: That's what it says.
QUESTION: But the measure is probable cause, I believe.
GEN. HAYDEN: The amendment says unreasonable search and seizure.
QUESTION: But does it not say probable --
GEN. HAYDEN: No. The amendment says --
QUESTION: The court standard, the legal standard --
GEN. HAYDEN: -- unreasonable search and seizure.
-----------------------------------------------
How can someone so high up as to lead the NSA and be a #2 to Negraponte, be so ignorant of something he (later in the same press conference) claims to be absolutely familiar?
Republicans and Democrats should be outraged by this. We are in real trouble with these guys in charge.
It seems as though the general was deliberately trying to frustrate the reporter by simply restating part of the 4th amendment and ignoring the question. Then, when pressed, he came up with the wrong standard of proof. The question concerning these answers is whether the general was simply ignorant of the actual standard, or if he was lying in the belief (apparently well-founded), that the weak-willed media around him would neglect to report on his lie. Either way, chalk up another disgrace for the Bush Administration..... rack em!
I think he was trying to frustrate him too. "Brawwwwwk unreasonable search and seizure brawwwwwk!" When someone doesn't hardly let a reporter ask a question, it's usually because they just don't want to answer.
It's a shame that the man took an oath to support and defend a document he has apparently never read too closely.
His denial that "probable cause" was the proper standard coupled with his claim that the 4th is the amendment that the NSA knows best leads me to believe that maybe the NSA doesn't follow the same Constitution as the rest of us do.
As an Air Force veteran, his performace embarrassed me.
I agree with OPEN_MIND. It doesn't matter what your political persuasion is, everybody should be outraged at this.
To use a cliche statement, what is going on in this country is Orwellian. Plain and simple.