Helpful Supplements

Looking back on my posts from yesterday, it occurs to me that I sort of jumped into the dialogue midstream. I thought that maybe today I would go over the basics. I realize that I'm going at this somewhat backwards, but since the blog already reads top-down, it could conceivably make sense.

My comments yesterday referred to the President's warrantless wiretapping program. The latest information has Bush authorizing the program sometime after 9/11 and probably before the passing of the USA Patriot Act on October 26, 2001. The wiretapping program, now known as the "Terrorist Surveillance Program" (TSP), supposedly conducts warrantless surveillance of international calls either originating or ending in the U.S. if at least one of the parties is affiliated with Al-Qaeda. Bush and his followers have repeatedly insisted that such surveillance is limited to those specific circumstances. He plausibly says that "if somebody from al Qaeda is calling you, we'd like to know why." And I am sympathetic to such a statement. I live in NYC after all. But we already have a framework for dealing with this sort of intelligence gathering - and it's not a carte blanche for Mr. Bush.

Congress recognized that there were national security concerns implicated in going through the public and slower process of obtaining warrants through the court system. That's why they passed the Foreign Intelligence Surveillance Act (FISA) in the first place. FISA allowed the administration to obtain warrants from a secret Foreign Intelligence Surveillance Court (FISC) while also lowering the necessary threshold from probable cause to believe that a criminal activity is taking place to probable cause that the target is an agent of a foreign power. Notably, the passage of the Patriot Act amended the FISA statute further, making it even easier to obtain a warrant. Originally under FISA, the purpose of the FISA investigation had to have as a "primary purpose" the collection of foreign intelligence. Under the Patriot Act amendments, collection of foreign intelligence must merely be a "significant" purpose of the investigation. "Significant" is left vague and undefined.

So, FISA was designed an an apparatus to allow the administration to conduct the necessary intelligence gathering activites incident to wartime, while still respecting the constitutional requirements of the Fourth Amendment. And yet the Terrorist Surveillance Program completely ignores FISA. As I mentioned above, it purports to only wiretap international calls where at least one party has ties to Al-Qaeda. It, the President says, is necessary in the war on terror. FISA, he says, is too limiting, or inapplicable to the Executive, or worse yet, unconstitutional.

You see, the administration claims that it has inherent powers under Article II of the Constitution. Professor Dorf gives a wonderful and uncomplicated analysis of these legal claims. I will give the pared-down version. Basically, the Constitution under Article II gives the President a set of inherent powers, such as the power to pardon, or to make treaties or act as Commander in Chief. As Dorf explains, some of these powers are default powers and some are exclusive. An exlusive power is a power granted to the President that Congress cannot legislate away. For instance, Congress cannot pass a law depriving the President of his right to make pardons. A default power is a power granted to the President but also granted in some degree to the Congress. An example is powers concerning war, for the Congress is empowered under Article I [14] "[t]o make Rules for the Government and Regulation of the land and naval Forces." Contrary to an exclusive power, a default power may be regulated by Congressional law. As Dorf explains, surveillance is a default power and Congress has sought to regulate it under its FISA framework.

As I explained in an earlier post, under a Supreme Court ruling in 1952, the famous concurrence by Justice Robert Jackson held that when Congress has passed a law which the President directly violates, if it is a "default power" then the President's power "is at its lowest ebb." I suggest reading Dorf's article for a clearer understanding.

Also, for an expert's view on the illegality of the NSA program, you can read this letter to Congress signed by a number of constitutional scholars.

The "Terrorist Surveillance Program" - A Personal Polemic

As a prefatory remark, I should say that much credit belongs to Anonymous Liberal and Glenn Greenwald for their analysis in helping me to really understand these issues.

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As if it were not enough that our government is conducting a secret “surveillance” program of dubious legality, must they constantly hedge and lie about it? But it is politics as usual in Washington as Attorney General Gonzales recently released a letter to the Senate Judiciary Committee following up and clarifying his oral testimony about the NSA domestic surveillance program. The letter interestingly notes that the President authorized the program before the Patriot Act even passed. Also, it strongly suggests that the administration initially relied on an Article II inherent power justification, and the AUMF argument that the administration currently puts forward is pure revisionism. Because there are far too many covert reasons to be concerned about the state of personal privacy, perhaps it is beneficial that the administration made such a colossal blunder. It brings privacy concerns deservedly to the forefront of our consciousness. However, in order to stake a claim to that benefit, we must attack the foundations of the government’s reasoning.

We should early reject any serious claim that the government conducted this surveillance for purely sinister domestic purposes. It is probably true that concerns about terrorism predicated the program, and it was designed to combat that threat. Cynics may believe terrorism to be pretextual, but that seems wrong. However, the reality remains that the NSA program is vastly over-reaching and Gonzales ultimately fails in his justification efforts.

The administration chiefly relies upon the two-headed hydra of Article II and the Authorization for the Use of Military Force Resolution (AUMF). The Department of Justice’s position has likely evolved from an initial reliance on John Yoo’s now infamously radical expansive theory of Presidential wartime powers to a relatively toned-down reliance on Congressional mandate. Gonzales claims that the shift simply reflects that the Department’s “legal analysis has [not] been static over time,” whereas I suggest instead that the shift underscores the larger problem – the government’s disrespect for privacy and the rule of law. No doubt, the administration switched tacks as a result of the Court’s Hamdi ruling which seemingly narrowed the scope of the inherent power claim, while simultaneously opening the door to an AUMF argument. O'Connor's majority opinion expressly does not reach the Article II argument, but does offer dicta rejecting a plenary power in the President:

In so holding, we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made 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. Youngstown Sheet & Tube, 343 U.S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.Mistretta v. United States, 488 U.S. 361, 380 (1989)

The large question remains, then, how far can we take the Court's embrace of the AUMF as Congressional authorization for wartime activities. Though the detention of a Taliban soldier was "necessary and appropriate force," in no way is it clear that the wiretapping of domestic/international calls meets that standard. And O'Connor is quite explicit in limiting the holding to the specific facts:

We conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe (assuming, without deciding, that such authorization is required), and that the AUMF satisfied §4001(a)’s requirement that a detention be “pursuant to an Act of Congress” (assuming, without deciding, that §4001(a) applies to military detentions).

But fancy legal reasoning does not obviate the necessity for explaining how such a program might be authorized on dubious legal premises in the first place.

Flying literally in the face of FISA, the President authorized an action actually criminalized by that statute. Any reasonable reading of Jackson’s Youngstown concurrence suggests that in such a case the President’s “power is at its lowest ebb,” though arguably there is more wiggle room in questions of foreign affairs (traditionally the domain of the Executive). In Youngstown, Justice Jackson suggests a 3-tiered framework for measuring the constitutionality of presidential actions. The first category involves the President acting with direct Congressional authorization and such actions are entitled "the strongest of presumptions." The second category involves a Presidential action in the "zone of twilight" where there has been neither Congressional grant nor denial of that power. Such actions get a closer level of scrutiny than the previous tier. Finally, there are actions which are in direct violation of Congressional mandate. These activities must be "scrutinized with caution" and the President's power is "at its lowest ebb."

Still, the administration persists on conflating a default Presidential power with an exclusive one in making its inherent power claim. Worse than negligent, such rhetoric is simply intellectually dishonest. But really it is Hamdi that puts a nail in the Article II coffin, circumscribing the administration’s Unitary Executive Theory. O’Connor’s majority opinion soundly rejects the administration’s argument that the President has plenary power in a state of war, and reaffirms the foundational separation of powers regime.

Even allowing that the administration built the “Terrorist Surveillance Program” on the foundation of the AUMF, significant legal questions arise. For instance, the dispositive statement that the President is “authorized to use all necessary and appropriate force” occurs under the heading of “Authorization for the Use of United States Armed Forces.” It seems plausible to argue that “appropriate force” refers to “military” force and I think it difficult to label the NSA “armed.” At the same time, I am sympathetic to the proposition that pursuit of foreign intelligence is a necessary component in the effective management of a war. However, to make an argument, as Gonzales does, that the AUMF puts the President in the Youngstown Category I is sheer folly, especially in light of the plain meaning of FISA. After all, the Congress was not contemplating the authorization of a surveillance program when they passed the AUMF. They thought they were already dealing with that issue in the adoption of the USA Patriot Act.

Perhaps the most puzzling of all is the current malaise concerning the reauthorization of the Patriot Act. What seems to elude much of the mainstream media is the apparent inconsistency between the administration’s insistence of the dire necessity of the Patriot Act and the legal position concerning the “Terrorist Surveillance Program.” An even cursory glance at the Patriot Reauthorization Act reveals that it is chiefly a series of FISA amendments. It baffles as to why the President calls this so “vital to the war on terror” – this revision of a statute that he maintains he has no duty to obey. Even more perplexing is his statement that this Act will serve to “safeguard the civil liberties of the American people.” Something stinks here. The Patriot Act/FISA seeks to restrain an administration that claims the power to avoid such restraint. And that same administration simultaneously maintains the absolute necessity of reauthorizing said restraint. No doubt, Gonzales recognizes the delicious irony even while dancing around it. Frankly, it makes one wonder whether the entire Patriot Act were not a smokescreen to conceal the real “war on terror.” [1]

Finally, a clarion call for cynics sounds loudly in A-G Gonzales’s letter. He explicitly represents that he testified “only as to the legal basis of the activity confirmed by the President” and reiterates that the “interception of purely domestic communications” would require a different legal analysis. (p. 5) This slippery rhetoric oozes of lawyerly parsing and almost screams that warrantless domestic spying occurs, even while remaining “unconfirmed.” [2] Clearly, I can't say one way or the other that purely domestic, non-terrorist-related, spying is definitely occurring. My deep suspicion is that it is. But that is subject to interpretation, of course, being simply an inference - an inference dying to be made - but an inference nonetheless.

Of course, this controversy is really just the tip of the iceberg. Robert O’Harrow’s “No Place to Hide” unveils a prescient vision of the future information-industrial complex. With the explosion of data-mining, biometrics, visual recognition software and lavish governmental patronage, “electronic surveillance” is rapidly becoming a fixed reality. Hopefully, the exposure of our government’s deceit and illegal machinations will help to unveil the wizard. Even now the ACLU and Electron Freedom Foundation pursue legal actions to pull back the curtain. [3] We can only hope that it is not too late.

[1] Credit to Anonymous Liberal for this insightful analysis.
[2] See Washington Post article for further speculation
[3] Courtesy of “The Nation” – Tim Shorrock (March 20, 2006).

This is Insane!

Administrative Difficulties: Why Harper's Has it Right

Lewis Lapham writes a compelling argument in the March issue of Harper's calling for Bush's impeachment. I'm particularly interested in the following two, what I would term unforgiveable, scandals.

NSA Surveillance and AIPAC - I am following these stories with a growing and unbelieving morbid fascination, as though I am watching some horrid scene but can't drag my eyes away. And perhaps I am.

The first story I refer to is the developing drama over the recently revealed NSA wiretapping program that, at least facially, seems to violate the Foreign Intelligence Surveillance Act of 1978 (FISA). The second story refers to the administration's ongoing Espionage Act prosecution of two former lobbyists from AIPAC (American Israel Public Affairs Committee) for revealing classified information to reporters and foreign officials. I will be following this post with detailed digressions on each of these stories, so primarily here I just want to discuss their frightening, overarching theme.

And that theme is POWER and ABUSE. This administration is shameless in its attitude toward the Constitution and the rule of law. Here is a government that spies on its citizens while ignoring a statute, FISA, specifically designed to protect that privacy and those civil liberties. And then here is a government who seeks to prosecute those individuals implicated in leaking AND REPORTING that illegal activity by the government. Although the AIPAC case does not specifically relate to the NSA program, it is intimately tied up with the administration's war on truth. The government is threatening the lifeblood of investigative journalism - leaked information - and the AIPAC prosecution represents an incredible inroad against the protections afforded by the First Amendment. Prosecuting individuals for relaying leaked information - individuals who never promised to keep the information classified in the first place - individuals who didn't even know specifically what information was classified - individuals who were basically DOING THEIR JOB? THAT IS WHAT REPORTERS DO. The AIPAC prosecution represents a stunning attack on the freedom of the press - an attack that is only just now starting to motivate some commentary in the mainstream media (the blogosphere has contributed to most of my knowledge about it).

Anyway, my aim is to do a somewhat detailed analysis of these two current events drawing mainly from information I am culling from the currently active dialogue between the internet Left and Right - although I'm sure my own predilections and bias are quite clear. My first aim, will be to describe in short and then tackle the hypocrisy and absurdity that A-G Gonzales calls the "Terrorist Surveillance Program."

Fun with Embedding - An Experimental Ode to Michael

This first video is the new Air Jordan spot which brings me chills. Anyone familiar with Jordan's oeuvre will recognize his signature moves being played out by aspiring youths. According to an ESPN article, the director put out a casting call all over the country looking for people to recreate these moments. The music ain't bad either.



This second video is awesome. I'm dying to know what this song is - and I can't help getting fired up everytime I watch this. Anyway, it shows the evolution of Jordan's game and will also give you an opporutnity to view some of those signature moves in their original, untainted form.