Lifelike Pundits: Through Flawed Analogies, A Forfeit Is Declared (part 1 of 3)

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August 17, 2006

Through Flawed Analogies, A Forfeit Is Declared (part 1 of 3)

The big legal news today was that a Carter-appointed judge found the President’s surveillance program to be illegal, and issued an injunction against it after granting summary judgement on some counts to the plaintiffs in ACLU v. NSA, Case No. 06-CV-10204. The ruling can be found here. The judge found that there was a program of actually intercepting the contents of phone calls coming into the country from known Al-Qeada associates and operatives. The judge found that the program as she knew it violated FISA, the First and Fourth Amendments to the Constitution, and the Separation of Powers doctrine. I find some of her ruling to be on target, but some of it to be very flawed.

As a disclaimer, I do not have access to all of the pleadings, as I am not a subscriber to the PACER system. The pleadings are available for free at the courthouse that issued the ruling, of course, if you want to travel there. But I don’t have the pleadings, so my analysis may be flawed.

In any event, this is going to be a long post, and there will be another two like it. The linchpin of the ruling is section two, and if you want to boil my take on the ruling down to one phrase, it would be “The government was not found to have lost, they were found to have forfeited.” That will be more explained in my second post. This is my first post on what I plan to be three posts on the subject, and its purpose is to lay out some of the preliminary issues. Details follow.

Essentially the judge refused to allow the state secrets privilege to come into play, and the government refused to give the judge certain evidence that was of a confidential nature. If you accept the judge’s ruling that the state secrets’ doctrine does not apply, then her injunction follows logically (if not several other aspects to the ruling). After all, the NSA refused to rebut many of the Plaintiffs' allegations due to national security concerns, so no substantial defense was made.

The first thing to realize is that this is not the phone-numbers-collection program discussed in the USA Today article here. The program was never a violation of FISA to begin with due to the fact that it acquired non-content information. See Aaron’s post here, or read me on my ranting blog here and here. This is instead about a program that intercepts international telephone and Internet communications, content and all. The judge states that there is no judicial approval (meaning no subpoena or warrant) of these intercepts. I take the judge at her word because I do not have access to the pleadings. It may very well be that there is some sort of judicial approval that the NSA does not wish to divulge.

The judge relies on a statement by President Bush recorded here. In it, he says: “As President and Commander-in-Chief...the United States Congress also granted me additional authority to use military force against al Qaeda (emphasis mine).......consistent with U.S. law and the Constitution, I authorized the interception of international communications of people with known links to al Qaeda and related terrorist organizations.”

In other words, because he was authorized to make war, he is authorized to collect intelligence as is necessary to make war. This is an argument that the AUMF superceded FISA. There could also be for a Constitutional superceding of FISA rather than a statutory one, but the NSA did not seem to make that claim except in an alternative argument. (Certainly the administration would be taking a huge risk in acting in reliance on that theory alone.)

Now, the judge’s proof to the nature of the program and its timing is the statement made by the President, quoted above. It is likely the judge had to rely on the statement at a press conference, because she seemed to have gotten little from the NSA in the way of evidence. But this means that the judge should take the President at his word for the rest of the statement as well. (Again, I do not have the peladings, and also note I would obviosly not have any in camera porceedings available to me.)

The AUMF states in relevant part "That the President is authorized to use all necessary and appropriate force...in order to prevent any future acts of international terrorism..." (emphasis mine). See copies of the act here and here. Now the question is, what do the words "all necessary and appropriate force" mean? Politicians tend to use a lot of subjective language like that in legislation, and then judges have the uneviable task of trying to figure out what it emans years later when all the politicians involved in signing it in the first place have changed their minds about it three or four times depending on polling data. In fact the difference between the four-justice plurality and the Ginsburg-Souter concurrence in Hamdi v. Rumsfeld centered on this issue.

KEY PARAGRAPH: It is not unreasonable that it means actions taken in previous armed conflicts should be allowed to be taken again. That means that the AUMF allows for intelligence-gathering, and it is not blocked by previous legislation on the matter, including FISA. In fact there is an even stronger basis to say that the AUMF allows for intelliegence gathering in spite of FISA regulations than there is to say that the AUMF allows for military detention of United States citizens (the issue in Hamdi), given both the greater assault on liberty that detention is, and the AUMF's prevention clause that I italicized above.

Note further that we see an indication of congressional intent approving this in the President's statement. The President stated “Leaders in the United States Congress have been briefed more than a dozen times on this program,” and those leaders did not start objecting to it until the USA Today story broke and the left-wing bloggers were incensed.

Ah, but we only have the President’s word for that, you ask? Yes but it is the President’s word that the judge is using as acceptable evidence. In the Talmud, the expression is “hapeh sheossur hapeh shehetter,” “the mouth that forbids is the mouth that permits.” This refers to a case wherein the same person testifies something bad about themselves, and then immediately qualifies the incriminating statement with one that exonerates themselves. The rule is that one cannot take only the first half of the statement. Since when do the Federal courts follow the words of the Talmud, you ask? Since it’s a matter of common sense. Or it should be. There's also a little thing called the rule of completeness as codified in FRE 106.

So members of both parties had been briefed on the operation, and they seemed to think that the AUMF superceded FISA.

This ends the first part of my entry on the subject. Part two will deal with an analysis of sections two and eight of her ruling, dealing with the state secrets’ privilege and the AUMF’s meaning, respectively. In part three I will discuss why her fifth section on Fourth Amendment jurisprudence is flawed (mostly because she ignores a key distinction from Ex Parte Quirrin, 317 U.S. 1 (1942) about the non-applicability of the Fourth Amendment in military matters), why her sixth section on the First Amendment is flawed, and why her ninth section misapplies the Hamdi decision (542 U.S. 507 (2004)). Section seven has only one major flaw, which is similar to her misinterpretation of Hamdi, and I will detail it if space permits.

I do not deal with section three, on the standing issue, because while there are parts I disagree with, enough is left that it on solid ground. I do not deal with section four, which deals with the statutory and jurisprudence history of electronic surveillance, including FISA, because if the AUMF argument in section eight does in fact stand, that point is moot. Likewise section ten, the practical arguments for a legal exclusion for the program (of which many are ignored), becomes moot when the issues in the paragraph above are dealt with. Section eleven is the conclusions restated, and as such there is no need to go over it.

Of course it doesn’t need to me said that my conclusions about her ruling are legally irrelevant. Only the Appellate Court, and perhaps the Supreme Court, will decide if the ruling is correct. But hopefully this and the other two entries that I intend will make the matter clearer for everyone.

Posted by Charles at August 17, 2006 11:58 AM

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Comments

So what about this earlier comment, then?

"This adminsitration has NEVER been accused of tapping actual conversations without court order. You made that up to cover your tracks"

Posted by: paul at August 18, 2006 10:40 AM

It sounds to me like a "damned if you do, damned if you don't" situation for the government. In order to defend the program, the government must reveal classified information to a group of hardly-likely-to-maintain-confidentiality plaintiffs and a court which is unlikely to be on its side (since the judge was appointed to the bench by President Carter).

Posted by: Gayle Miller at August 18, 2006 10:51 AM

it is a fine effort, this post...

thanks to Gayle for the hat tip...

i remain deeply amazed, to see Liberal Democrat Partisans continue to undermine the security and safety of the American People...

the motive seems to have little to do with 'civil liberty', but purely political opportunism, which has gone on for years now.

this is well past the point of any reason, and watching Liberal Democrats claim they can be trusted with National Security, or suggest they are taking the threats we face seriously, only produces laughter.

they must be defeated, and strongly rebuked this NOV.

enough is enough...

we watched the Clinton negligence for 8 years, and now, we continue to see a bunch of spoiled, unethical, self serving fools endangering the USA...

pathetic

Posted by: hNAV at August 18, 2006 11:36 AM

SIGH

paul...for once, read what I wrote. I've given up on talking to you.

Posted by: Charles at August 18, 2006 12:31 PM

Gayle is beating me to the punch on the section two analysis! Gayle, I hope you don't mind if I quote you directly.

Posted by: Charles at August 18, 2006 12:41 PM

The only thing in this travesty that evokes laughter is listening to the Bush Administration try to explain why a law that allows them to place a wiretap FIRST and then seek permission for that wiretap 3 days AFTER it is already in place impedes their ability to go after terrorists. FISA was designed for speedy response.

The FISA law contains intentionally flexible provisions designed to provide speed and agility in expediting emergency requests. The law grants the attorney general enormous power and discretion to authorize secret “emergency” electronic surveillance and physical searches for up to 72 hours, before any court order is granted. No court order at all is required if the surveillance is terminated before the 72-hour period ends. Between 1978 and 2002, the court approved almost every one of the 15,000 search warrant requests, and it continues to approve 99 percent of requests. The only logical explanation for the Bush Administration wanting to go around FISA is because they intend to abuse the law in the future or are already doing it.

The reason that FISA became necessary in the first place was because of the phoney use of information collected under the name of National Security. Nixon used wiretap information against his "enemies list" J. Edgar Hoover blackmailed Presidents and Congressmen with information he had collected on them for years to maintain his power, and he also used wiretap information to discredit and harass Martin Luther King. Karl Rover looks for dirt on politicians and teaches the important of political espionage in winning elections. This is the kind of Administration that we want to turn loose without judicial review? Give me a break.

When one of you pundits can clearly explain exactly how FISA impedes this Administration in its pursuit of the terrorist threat, you might convince me that there is at least a valid argument on that side of aisle. Otherwise, it appears to just be one more way that a corrupt and immoral administration is attempting to use a national crisis to avoid judicial review of what it is doing.

Posted by: KeithS at August 18, 2006 02:29 PM

They're not saying it interferes, so much, as they are saying requiringa court order impedes on an inherent power of the executive branch.

Posted by: paul at August 18, 2006 03:57 PM

Keith,

As speedy as FISA can be, it is not as speedy as being able to act instantly. Therefore it does impede the war on terror. Whether or not the benefit of that impediment is worth the cost is something we might debate, but there is undeniably a cost. The Bush administration does not seek to "go around FISA," their legal position was and has been that FISA does nto apply.

FISA was deemed necessary because of the findings of the Church Committee that EVERY administration since 1946 had engaged in such wiretaps, and that there had been numerous political abuses (paraphrased from pages 25-26 of the opinion, and see footnotes there). Nixon was not alone in this. But FISA was never claimed even by its proponents to block the President's war-making powers under Article II. Indeed, it could not. To stretch FISA past where its writers intended it to go would be to make it unconstitutional. FISA exists to protect American citizens for potential absues of the criminal-investigation process, but as Ex Parte Quirin makes clear, the criminal-investigation process and the war-making process are two separate areas of law.

Karl Rove is a political operative. Yes he looks for dirt on political oppomemts. So does every single other political operative. That Rove does what others do is irrelevant.

It is not accurate to say that the adminsitration's position is that this program acts without judicial review. It IS accurate to say that the adminsitration's position is that this program is non-justicable. That's a key distinction (one that I will not even attempt to explain to another poster here). The check on it is therefore not the judicial branch, but the legislative branch and the political process.

"When one of you pundits can clearly explain exactly how FISA impedes this Administration in its pursuit of the terrorist threat, you might convince me that there is at least a valid argument on that side of aisle."

Well, FISA is an impediment in that it acts as a time delay for very time-sensitive activity. More directly, in intelligence matters the less people in on a secret is better for keeping the secret a secret. But the broader answer is that taking something that is non-justicable and making it justicable (and therefore subject to judicial review) acts as a distraction and a drain on resources. Wars are not overseen by judges.

I appreciate your comments Keith, and I think that you write in a very organized fashion. Thank you for reading my post.

Posted by: Charles at August 18, 2006 04:13 PM

Back when Bill Clinton was President, he authorized warrantless eavesdropping. Yet, no federal judge told him to stop it.

Posted by: Dodo David at August 18, 2006 09:01 PM

KeithS,

In every argument you've made regarding FISA and the 72-hour waiting period to apply for a warrant never addresses the actual issue here.

I have to disagree with Charles that FISA isn't fast enough. We can hire enough paralegals to file for these warrants.

No one wants to address the issue of Probable Cause. If we listen into an international call that does not provide ex post facto information that could be used for the warrant - what then?

A phone call to and from Pakistan to discuss hummus recipies would not show probable cause...but we should be listening in to all these calls, because there might be one where the conversation strays from Hummas to Usama.

That is the point of this program, and the argument should be that there is no constitutional expectation that international telephone conversations are protected speech (1st amendment) or private (4th amendment).

When I lived in Germany, the military told us never to discuss where our father's or mother's were training or if they were going into the field (2 week training exercises).

The hook was, "Be careful. Boris is listening."

Posted by: aaron at August 19, 2006 06:27 PM

1) Paralegals: Well, yes you can, but then a judge can still say no and there would need to be an appeal, etc, etc, etc. It has the potential for being very, very timely even if sometimes it is a rubber stamp.

2) Ex post facto warrants: Sometimes you get something that wasn't worth the warrant, but it still has the potential for more. Recall that we have a higher warrant standard than the Brits (they use reasonable suspicion, we use probable cause).

3) Hummus to Osama: Very good point. We are not tracking calls with this program, mind you. No one is saying that this particular call has probable cause. We are tracking people. This person is a known al Qeada link, that's why we listen in when they call in. I really don't think we want to chance giving that away.

4) The First Amendment stuff: The judge was really far and away from rpecedent on that point. If not for Ex Parte Quirin (post coming) I would be tempted to agree with her on the 4th Amend stuff tho.

Working on part 3 now...

Posted by: Charles at August 20, 2006 01:26 AM

http://www.lifelikepundits.com/archives/002728.php

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