FISA Update

I've been keeping an eye on the blog reactions to the original firestorm, and found some more interesting linkage. Via Between Lawyers, there's this DefenseTech.org article about the reaction to the news by former agents:

A few current and former signals intelligence guys have been checking in since this NSA domestic spying story broke. Their reactions range between midly creeped out and completely pissed off.

All of the sigint specialists emphasized repeatedly that keeping tabs on Americans is way beyond the bounds of what they ordinarily do -- no matter what the conspiracy crowd may think.

"It's drilled into you from minute one that you should not ever, ever, ever, under any fucking circumstances turn this massive apparatus on an American citizen," one source says. "You do a lot of weird shit. But at least you don't fuck with your own people."

Another, who's generally very pro-Administration, emphasized that the operation at least started with people that had Al-Qaeda connections -- with some mass-spying master list. . . . But this call chain could very well have grown out of control, the source admits. Suddenly, people ten and twelve degrees of separation away from Osama may have been targeted.

Read the rest - it's got tons of linky goodness, including a pointer to this WP op-ed.

Electronic Frontier Foundation posts FISA FAQs.

Jeffrey Utech, another Iowa blogger, gives his opinion:

I think that it runs counter to the privacy protection that the Bill of Rights was written to protect. Still, the justification for it is that, if made public, the authorization would cause suspects to make their actions more clandestine and harder to track. So there is actually something in place that allows for people to be spied on secretly. Because of that, I really struggle with any justification of circumventing that act as well.

Well said.

Balkinization points out that the US AG has already basically conceded that the NSA program is not authorized under FISA, and that while they looked into amending FISA, they decided that the AUF already authorized it, so they don't need to comply:

Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence. . . . . We took the position -- the United States government took the position that Congress had authorized that detention in the authorization to use force, even though the authorization to use force never mentions the word "detention." . . . For the same reason, we believe signals intelligence is even more a fundamental incident of war, and we believe has been authorized by the Congress. And even though signals intelligence is not mentioned in the authorization to use force, we believe that the Court would apply the same reasoning to recognize the authorization by Congress to engage in this kind of electronic surveillance. . . . We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.

His analysis:

Both of the Administration's arguments here are quite radical: (i) That the AUMF impliedly repealed the well-wrought scheme in FISA, with its prohibition on warrantless eavesdropping on U.S. persons (a repeal that only the Executive knew about: neither the public, nor even the Congress that enacted the AUMF, was aware that it had performed such radical surgery on the U.S. Code); and (ii) even if the AUMF did not repeal/amend FISA, there's a Commander-in-Chief override.

I actually think the former argument is more preposterous than the latter, although I'm sure others will disagree. . . . the Administration's contempt for the legislature here is remarkable. I should add, as well, that FISA actually has an express provision to deal with emergencies in times of war, 50 USC 1811, which provides: "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." On the Administration's view, this 15-day limit, too, must have been impliedly repealed when Congress authorized the conflict in Afghanistan. . . . In any event, if the Administration is correct about the legality of its wiretaps, then the President's impassioned scolding of the Congress this morning for failing to reenact the PATRIOT Act is entirely misguided: After all, the President already has the authority under Article II of the Constitution to do most of what the PATRIOT Act authorizes -- indeed, to override statutory provisions that would prohibit such Executive acts -- and, as if that weren't enough, Congress has already (in the AUMF) authorized the President not only to do whatever it takes to defeat Al Qaeda, but also to ignore any preexisitng legal restrictions.

Concurring Opinions has an even better round-up posted.

UPDATE:
Drew Miller notes on the blogwar between State 29 and Chris Woods at Political Forecast, and comes down against the wiretaps:

Look, this isn't about civil liberties versus fighting terrorism. Those two goals will always be in some amount of conflict, and it will be up to Congress to figure out what the American people are willing to accept. The debate over the Patriot Act is an example of this tension.

But this is about the rule of law. Debating as a country what liberties we are willing to sacrifice doesn't mean a whole lot if the President is willing to go around the law and just throw out all of them. I don't often talk about national issues, since it's mostly politics and there are enough blogs that reasonably represent my point of view. But this goes beyond politics, and if allowed to stand would represent a complete abandonment of the idea of checks and balances upon which our country is founded.

State's response to Woods:

Since we are not lawyers, we're going to leave this one to the mouthpieces. . . .

We still think the ultimate point of this exercise, besides selling books and making political hay, is to find a reason for far-lefty Democrats to go forward with impeachment charges (or at least the appearance of an impeachable charge) against President Bush, Vice President Cheney, Rumsfeld, and every other slightly Republican sympathizer on the planet.

My point: this may be so. I think they're going to milk this as much as possible, and see if they can instigate the whole impeachment process.

But if Bush pushes a point that's untenable, it shouldn't be supported even at the expense of giving ground to his detractors.

The NSA violates FISA, even the AG concedes that. The administration's rationale for FISA inapplicability doesn't hold any water: the speed is there, as there are emergency procedures in place to tap first, get a court order later. As is often repeated, the only possible reason not to run through the FISA retroactive order hoops is if you won't qualify for an order even retroactively. As far as the FISA statutory scheme goes the only way not to qualify is that either your probable cause is too weak or your relationship between the person being tapped and the foreign power targeted is too tenuous to support an order even under the relaxed standards of the secret FISA court.

Extrapolating the authority for warrentless wiretaps from the AUF is a stretch at best, and by throwing around the "I'm reclaiming my historical constitutional right as executive" language, he's hinting at a showdown that's gonna go way beyond the AUF, because if the power is inherent in the presidency, then by implication the FISA itself, despite being a validy passed statute signed into law by a sitting president, is an infringement on the inherent constitutional powers of the executive branch - thus rendering all such statutes as empty rhetorical excercises. And while the "we're at war" language is being bandied about based on Iraq and Afghanistan, if the "war" is the "war on terrorism," well, there have been terrorists in one form or another since the beginning of time. Who is to say when it officially ends, if ever?

Leftists are pointing to Nixon's overreaching against Vietnam war protesters in the seventies as a prime example of presidential abuse, and conservatives are justifiably feeling the heat. But the scenario could just as easily be flipped, a radical left government using this program in the future against groups with a conservative agenda. So long as some kind of connection with some kind of foreign group they could label "terrorist" is made, it's supportable, right? Do we really want to open that particular door?

I'm rather protective of my constitutional rights. While the Fourth Amendment status of the evidence seized from this might be debatable, statutes such as the FISA are the only remaining safeguard. There are some things I'm not willing to cede to the terrorists, even at the expense of less-than-perfect intelligence enforcements, and this is one of them.