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RE: virus: 'On NSA Spying' an open letter to congress.
« on: 2006-01-21 17:43:33 » |
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[Blunderov] This (below) seems an authoritative opinion. Bush swore to
uphold the constitution. He has not. In fact, quite the reverse.
How does he continue to survive? It is completely amazing to me. Clinton
went down because of a blow-job. And yet Bush carries on regardless. The
only conclusion I can draw is that he must be what America wants. And this
in spite of the fact that Bin Laden is STILL making video tapes with
apparent complete impunity.
Best Regards.
http://www.nybooks.com/articles/18650
ON NSA SPYING: A LETTER TO CONGRESS
By Beth Nolan, Curtis Bradley, David Cole, Geoffrey Stone, Harold Hongju
Koh, Kathleen M. Sullivan, Laurence H. Tribe, Martin Lederman, Philip B.
Heymann, Richard Epstein, Ronald Dworkin, Walter Dellinger, William S.
Sessions, William Van Alstyne
Dear Members of Congress:
We are scholars of constitutional law and former government officials. We
write in our individual capacities as citizens concerned by the Bush
administration's National Security Agency domestic spying program, as
reported in The New York Times, and in particular to respond to the Justice
Department's December 22, 2005, letter to the majority and minority leaders
of the House and Senate Intelligence Committees setting forth the
administration's defense of the program.[1] Although the program's secrecy
prevents us from being privy to all of its details, the Justice Department's
defense of what it concedes was secret and warrantless electronic
surveillance of persons within the United States fails to identify any
plausible legal authority for such surveillance. Accordingly the program
appears on its face to violate existing law.
The basic legal question here is not new. In 1978, after an extensive
investigation of the privacy violations associated with foreign intelligence
surveillance programs, Congress and the President enacted the Foreign
Intelligence Surveillance Act (FISA). Pub. L. 95-511, 92 Stat. 1783. FISA
comprehensively regulates electronic surveillance within the United States,
striking a careful balance between protecting civil liberties and preserving
the "vitally important government purpose" of obtaining valuable
intelligence in order to safeguard national security. S. Rep. No. 95-604,
pt. 1, at 9 (1977).
With minor exceptions, FISA authorizes electronic surveillance only upon
certain specified showings, and only if approved by a court. The statute
specifically allows for warrantless wartime domestic electronic
surveillance—but only for the first fifteen days of a war. 50 U.S.C. § 1811.
It makes criminal any electronic surveillance not authorized by statute, id.
§ 1809; and it expressly establishes FISA and specified provisions of the
federal criminal code (which govern wiretaps for criminal investigation) as
the "exclusive means by which electronic surveillance...may be conducted,"
18 U.S.C. § 2511(2)(f) (emphasis added).[2]
The Department of Justice concedes that the NSA program was not authorized
by any of the above provisions. It maintains, however, that the program did
not violate existing law because Congress implicitly authorized the NSA
program when it enacted the Authorization for Use of Military Force (AUMF)
against al-Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF
cannot reasonably be construed to implicitly authorize warrantless
electronic surveillance in the United States during wartime, where Congress
has expressly and specifically addressed that precise question in FISA and
limited any such warrantless surveillance to the first fifteen days of war.
The DOJ also invokes the President's inherent constitutional authority as
Commander in Chief to collect "signals intelligence" targeted at the enemy,
and maintains that construing FISA to prohibit the President's actions would
raise constitutional questions. But even conceding that the President in his
role as Commander in Chief may generally collect "signals intelligence" on
the enemy abroad, Congress indisputably has authority to regulate electronic
surveillance within the United States, as it has done in FISA. Where
Congress has so regulated, the President can act in contravention of statute
only if his authority is exclusive, that is, not subject to the check of
statutory regulation. The DOJ letter pointedly does not make that
extraordinary claim.
Moreover, to construe the AUMF as the DOJ suggests would itself raise
serious constitutional questions under the Fourth Amendment. The Supreme
Court has never upheld warrantless wiretapping within the United States.
Accordingly, the principle that statutes should be construed to avoid
serious constitutional questions provides an additional reason for
concluding that the AUMF does not authorize the President's actions here.
1.
Congress did not implicitly authorize the NSA domestic spying program in the
AUMF, and in fact expressly prohibited it in FISA
The DOJ concedes (Letter at 4) that the NSA program involves "electronic
surveillance," which is defined in FISA to mean the interception of the
contents of telephone, wire, or e-mail communications that occur, at least
in part, in the United States. 50 U.S.C. §§ 1801(f)(1)-(2), 1801(n). The NSA
engages in such surveillance without judicial approval, and apparently
without the substantive showings that FISA requires—e.g., that the subject
is an "agent of a foreign power." Id. § 1805(a). The DOJ does not argue that
FISA itself authorizes such electronic surveillance; and, as the DOJ letter
acknowledges, 18 U.S.C. § 1809 makes criminal any electronic surveillance
not authorized by statute.
The DOJ nevertheless contends that the surveillance is authorized by the
AUMF, signed on September 18, 2001, which empowers the President to use "all
necessary and appropriate force against" al-Qaeda. According to the DOJ,
collecting "signals intelligence" on the enemy, even if it involves tapping
US phones without court approval or probable cause, is a "fundamental
incident of war" authorized by the AUMF. This argument fails for four
reasons.
First, and most importantly, the DOJ's argument rests on an unstated general
"implication" from the AUMF that directly contradicts express and specific
language in FISA. Specific and "carefully drawn" statutes prevail over
general statutes where there is a conflict. Morales v. TWA, Inc., 504 U.S.
374, 384-85 (1992) (quoting International Paper Co. v. Ouelette, 479 U.S.
481, 494 (1987)). In FISA, Congress has directly and specifically spoken on
the question of domestic warrantless wiretapping, including during wartime,
and it could not have spoken more clearly.
As noted above, Congress has comprehensively regulated all electronic
surveillance in the United States, and authorizes such surveillance only
pursuant to specific statutes designated as the "exclusive means by which
electronic surveillance...and the interception of domestic wire, oral, and
electronic communications may be conducted." 18 U.S.C. § 2511(2)(f)
(emphasis added). Moreover, FISA specifically addresses the question of
domestic wiretapping during wartime. In a provision entitled "Authorization
during time of war," FISA dictates that "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." 50 U.S.C. § 1811 (emphasis
added). Thus, even where Congress has declared war—a more formal step than
an authorization such as the AUMF —the law limits warrantless wiretapping to
the first fifteen days of the conflict. Congress explained that if the
President needed further warrantless surveillance during wartime, the
fifteen days would be sufficient for Congress to consider and enact further
authorization.[3] Rather than follow this course, the President acted
unilaterally and secretly in contravention of FISA's terms. The DOJ letter
remarkably does not even mention FISA's fifteen-day war provision, which
directly refutes the President's asserted "implied" authority.
In light of the specific and comprehensive regulation of FISA, especially
the fifteen-day war provision, there is no basis for finding in the AUMF's
general language implicit authority for unchecked warrantless domestic
wiretapping. As Justice Frankfurter stated in rejecting a similar argument
by President Truman when he sought to defend the seizure of the steel mills
during the Korean War on the basis of implied congressional authorization:
It is one thing to draw an intention of Congress from general language and
to say that Congress would have explicitly written what is inferred, where
Congress has not addressed itself to a specific situation. It is quite
impossible, however, when Congress did specifically address itself to a
problem, as Congress did to that of seizure, to find secreted in the
interstices of legislation the very grant of power which Congress
consciously withheld. To find authority so explicitly withheld is...to
disrespect the whole legislative process and the constitutional division of
authority between President and Congress. Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring).
Second, the DOJ's argument would require the conclusion that Congress
implicitly and sub silentio repealed 18 U.S.C. § 2511(2)(f), the provision
that identifies FISA and specific criminal code provisions as "the exclusive
means by which electronic surveillance...may be conducted." Repeals by
implication are strongly disfavored; they can be established only by
"overwhelming evidence," J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int'l,
Inc., 534 U.S. 124, 137 (2001), and "‘the only permissible justification for
a repeal by implication is when the earlier and later statutes are
irreconcilable,'" id. at 141–142 (quoting Morton v. Mancari, 417 U.S. 535,
550 (1974)). The AUMF and § 2511(2)(f) are not irreconcilable, and there is
no evidence, let alone overwhelming evidence, that Congress intended to
repeal § 2511(2)(f).
Third, Attorney General Alberto Gonzales has admitted that the
administration did not seek to amend FISA to authorize the NSA spying
program because it was advised that Congress would reject such an
amendment.[4] The administration cannot argue on the one hand that Congress
authorized the NSA program in the AUMF, and at the same time that it did not
ask Congress for such authorization because it feared Congress would say
no.[5]
Finally, the DOJ's reliance upon Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to
support its reading of the AUMF, see DOJ Letter at 3, is misplaced. A
plurality of the Court in Hamdi held that the AUMF authorized military
detention of enemy combatants captured on the battlefield abroad as a
"fundamental incident of waging war." Id. at 519. The plurality expressly
limited this holding to individuals who were "part of or supporting forces
hostile to the United States or coalition partners in Afghanistan and who
engaged in an armed conflict against the United States there." Id. at 516
(emphasis added). It is one thing, however, to say that foreign battlefield
capture of enemy combatants is an incident of waging war that Congress
intended to authorize. It is another matter entirely to treat unchecked
war-rantless domestic spying as included in that authorization, especially
where an existing statute specifies that other laws are the "exclusive
means" by which electronic surveillance may be conducted and provides that
even a declaration of war authorizes such spying only for a fifteen-day
emergency period.[6]
2.
Construing FISA to prohibit warrantless domestic wiretapping does not raise
any serious constitutional question, while construing the AUMF to authorize
such wiretapping would raise serious questions under the Fourth Amendment
The DOJ argues that FISA and the AUMF should be construed to permit the NSA
program's domestic surveillance because there otherwise might be a "conflict
between FISA and the President's Article II authority as
Commander-in-Chief." DOJ Letter at 4. The statutory scheme described above
is not ambiguous, and therefore the constitutional avoidance doctrine is not
even implicated. See United States v. Oakland Cannabis Buyers' Coop., 532
U.S. 483, 494 (2001) (the "canon of constitutional avoidance has no
application in the absence of statutory ambiguity"). But were it implicated,
it would work against the President, not in his favor. Construing FISA and
the AUMF according to their plain meanings raises no serious constitutional
questions regarding the President's duties under Article II. Construing the
AUMF to permit unchecked warrantless wiretapping without probable cause,
however, would raise serious questions under the Fourth Amendment.
A. FISA's Limitations are consistent with the President's Article II role
We do not dispute that, absent congressional action, the President might
have inherent constitutional authority to collect "signals intelligence"
about the enemy abroad. Nor do we dispute that, had Congress taken no action
in this area, the President might well be constitutionally empowered to
conduct domestic surveillance directly tied and narrowly confined to that
goal—subject, of course, to Fourth Amendment limits. Indeed, in the years
before FISA was enacted, the federal law involving wiretapping specifically
provided that "nothing contained in this chapter or in section 605 of the
Communications Act of 1934 shall limit the constitutional power of the
President...to obtain foreign intelligence information deemed essential to
the security of the United States." 18 U.S.C. § 2511(3) (1976).
But FISA specifically repealed that provision, FISA § 201(c), 92 Stat. 1797,
and replaced it with language dictating that FISA and the criminal code are
the "exclusive means" of conducting electronic surveillance. In doing so,
Congress did not deny that the President has constitutional power to conduct
electronic surveillance for national security purposes; rather, Congress
properly concluded that "even if the President has the inherent authority in
the absence of legislation to authorize warrantless electronic surveillance
for foreign intelligence purposes, Congress has the power to regulate the
conduct of such surveillance by legislating a reasonable procedure, which
then becomes the exclusive means by which such surveillance may be
conducted." H.R. Rep. No. 95-1283, pt. 1, at 24 (1978) (emphasis added).
This analysis, Congress noted, was "supported by two successive Attorneys
General." Id.
To say that the President has inherent authority does not mean that his
authority is exclusive, or that his conduct is not subject to statutory
regulations enacted (as FISA was) pursuant to Congress's Article I powers.
As Justice Jackson famously explained in his influential opinion in
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635 (Jackson, J.,
concurring), the Constitution "enjoins upon its branches separateness but
interdependence, autonomy but reciprocity. Presidential powers are not fixed
but fluctuate, depending upon their disjunction or conjunction with those of
Congress." For example, the President in his role as Commander in Chief
directs military operations. But the Framers gave Congress the power to
prescribe rules for the regulation of the armed and naval forces, Art. I, §
8, cl. 14, and if a duly enacted statute prohibits the military from
engaging in torture or cruel, inhuman, and degrading treatment, the
President must follow that dictate. As Justice Jackson wrote, when the
President acts in defiance of "the expressed or implied will of Congress,"
his power is "at its lowest ebb." 343 U.S. at 637. In this setting, Jackson
wrote, "Presidential power [is] most vulnerable to attack and in the least
favorable of all constitutional postures." Id. at 640.
Congress plainly has authority to regulate domestic wiretapping by federal
agencies under its Article I powers, and the DOJ does not suggest otherwise.
Indeed, when FISA was enacted, the Justice Department agreed that Congress
had power to regulate such conduct, and could require judicial approval of
foreign intelligence surveillance.[7] FISA does not prohibit foreign
intelligence surveillance, but merely imposes reasonable regulation to
protect legitimate privacy rights. (For example, although FISA generally
requires judicial approval for electronic surveillance of persons within the
United States, it permits the executive branch to install a wiretap
immediately so long as it obtains judicial approval within seventy-two
hours. 50 U.S.C. § 1805(f).)
Just as the President is bound by the statutory prohibition on torture, he
is bound by the statutory dictates of FISA.[8] The DOJ once infamously
argued that the President as Commander in Chief could ignore even the
criminal prohibition on torture,[9] and, more broadly still, that statutes
may not "place any limits on the President's determinations as to any
terrorist threat, the amount of military force to be used in response, or
the method, timing, and nature of the response."[10] But the administration
withdrew the August 2002 torture memo after it was disclosed, and for good
reason the DOJ does not advance these extreme arguments here. Absent a
serious question about FISA's constitutionality, there is no reason even to
consider construing the AUMF to have implicitly overturned the carefully
designed regulatory regime that FISA establishes. See, e.g., Reno v. Flores,
507 U.S. 292, 314 n.9 (1993) (constitutional avoidance canon applicable only
if the constitutional question to be avoided is a serious one, "not to
eliminate all possible contentions that the statute might be
unconstitutional") (emphasis in original; citation omitted).[11]
B. Construing the AUMF to authorize warrantless domestic wiretapping would
raise serious constitutional questions
The principle that ambiguous statutes should be construed to avoid serious
constitutional questions works against the administration, not in its favor.
Interpreting the AUMF and FISA to permit unchecked domestic wiretapping for
the duration of the conflict with al-Qaeda would certainly raise serious
constitutional questions. The Supreme Court has never upheld such a sweeping
power to invade the privacy of Americans at home without individualized
suspicion or judicial oversight.
The NSA surveillance program permits wiretapping within the United States
without either of the safeguards presumptively required by the Fourth
Amendment for electronic surveillance —individualized probable cause and a
warrant or other order issued by a judge or magistrate. The Court has long
held that wiretaps generally require a warrant and probable cause. Katz v.
United States, 389 U.S. 347 (1967). And the only time the Court considered
the question of national security wiretaps, it held that the Fourth
Amendment prohibits domestic security wiretaps without those safeguards.
United States v. United States District Court, 407 U.S. 297 (1972). Although
the Court in that case left open the question of the Fourth Amendment
validity of warrantless wiretaps for foreign intelligence purposes, its
precedents raise serious constitutional questions about the kind of
open-ended authority the President has asserted with respect to the NSA
program. See id. at 316-18 (explaining difficulty of guaranteeing Fourth
Amendment freedoms if domestic surveillance can be conducted solely in the
discretion of the executive branch).
Indeed, serious Fourth Amendment questions about the validity of warrantless
wiretapping led Congress to enact FISA, in order to "provide the secure
framework by which the executive branch may conduct legitimate electronic
surveillance for foreign intelligence purposes within the context of this
nation's commitment to privacy and individual rights." S. Rep. No. 95-604,
at 15 (1978) (citing, inter alia, Zweibon v. Mitchell, 516 F.2d 594 (D.C.
Cir. 1975), cert. denied, 425 U.S. 944 (1976), in which the court of appeals
held that a warrant must be obtained before a wiretap is installed on a
domestic organization that is neither the agent of, nor acting in
collaboration with, a foreign power).
Relying on In re Sealed Case No. 02-001, the DOJ argues that the NSA program
falls within an exception to the warrant and probable cause requirement for
reasonable searches that serve "special needs" above and beyond ordinary law
enforcement. But the existence of "special needs" has never been found to
permit warrantless wiretapping. "Special needs" generally excuse the warrant
and individualized suspicion requirements only where those requirements are
impracticable and the intrusion on privacy is minimal. See, e.g., Griffin v.
Wisconsin, 483 U.S. 868, 873 (1987). Wiretapping is not a minimal intrusion
on privacy, and the experience of FISA shows that foreign intelligence
surveillance can be carried out through warrants based on individualized
suspicion.
The court in Sealed Case upheld FISA itself, which requires warrants issued
by Article III federal judges upon an individualized showing of probable
cause that the subject is an "agent of a foreign power." The NSA domestic
spying program, by contrast, includes none of these safeguards. It does not
require individualized judicial approval, and it does not require a showing
that the target is an "agent of a foreign power." According to Attorney
General Gonzales, the NSA may wiretap any person in the United States who so
much as receives a communication from anyone abroad, if the administration
deems either of the parties to be affiliated with al-Qaeda, a member of an
organization affiliated with al-Qaeda, "working in support of al Qaeda," or
"part of" an organization or group "that is supportive of al Qaeda."[12]
Under this reasoning, a US citizen living here who received a phone call
from another US citizen who attends a mosque that the administration
believes is "supportive" of al-Qaeda could be wiretapped without a warrant.
The absence of meaningful safeguards on the NSA program at a minimum raises
serious questions about the validity of the program under the Fourth
Amendment, and therefore supports an interpretation of the AUMF that does
not undercut FISA's regulation of such conduct.
In conclusion, the DOJ letter fails to offer a plausible legal defense of
the NSA domestic spying program. If the administration felt that FISA was
insufficient, the proper course was to seek legislative amendment, as it did
with other aspects of FISA in the Patriot Act, and as Congress expressly
contemplated when it enacted the wartime wiretap provision in FISA. One of
the crucial features of a constitutional democracy is that it is always open
to the President—or anyone else—to seek to change the law. But it is also
beyond dispute that, in such a democracy, the President cannot simply
violate criminal laws behind closed doors because he deems them obsolete or
impracticable.[13]
We hope you find these views helpful to your consideration of the legality
of the NSA domestic spying program.
Curtis Bradley, Duke Law School, former Counselor on International Law in
the State Department Legal Adviser's Office[14]
David Cole, Georgetown University Law Center
Walter Dellinger, Duke Law School, former Deputy Assistant Attorney General,
Office of Legal Counsel and Acting Solicitor General
Ronald Dworkin, NYU Law School
Richard Epstein, University of Chicago Law School, Senior Fellow, Hoover
Institution
Philip B. Heymann, Harvard Law School, former Deputy Attorney General
Harold Hongju Koh, Dean, Yale Law School, former Assistant Secretary of
State for Democracy, Human Rights and Labor, former Attorney-Adviser, Office
of Legal Counsel, DOJ
Martin Lederman, Georgetown University Law Center, former Attorney-Adviser,
Office of Legal Counsel, DOJ
Beth Nolan, former Counsel to the President and Deputy Assistant Attorney
General, Office of Legal Counsel
William S. Sessions, former Director, FBI, former Chief United States
District Judge
Geoffrey Stone, Professor of Law and former Provost, University of Chicago
Kathleen Sullivan, Professor and former Dean, Stanford Law School
Laurence H. Tribe, Harvard Law School
William Van Alstyne, William & Mary Law School, former Justice Department
attorney
Notes
[1] The Justice Department letter can be found at
www.nationalreview.com/pdf/12%2022%2005%20NSA%20letter.pdf.
[2] More detail about the operation of FISA can be found in Congressional
Research Service, "Presidential Authority to Conduct Warrantless Electronic
Surveillance to Gather Foreign Intelligence Information" (January 5, 2006).
This letter was drafted prior to release of the CRS Report, which
corroborates the conclusions drawn here.
[3] "The Conferees intend that this [15-day] period will allow time for
consideration of any amendment to this act that may be appropriate during a
wartime emergency.... The conferees expect that such amendment would be
reported with recommendations within 7 days and that each House would vote
on the amendment within 7 days thereafter." H.R. Conf. Rep. No. 95-1720, at
34 (1978).
[4] Attorney General Gonzales stated, "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." Press Briefing by
Attorney General Alberto Gonzales and General Michael Hayden, Principal
Deputy Director for National Intelligence (December 19, 2005), available at
www.whitehouse.gov/news/releases/2005/12/20051219-1.html.
[5] The administration had a convenient vehicle for seeking any such
amendment in the USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272,
enacted in October 2001. The Patriot Act amended FISA in several respects,
including in sections 218 (allowing FISA wiretaps in criminal
investigations) and 215 (popularly known as the "libraries provision"). Yet
the administration did not ask Congress to amend FISA to authorize the
warrantless electronic surveillance at issue here.
[6] The DOJ attempts to draw an analogy between FISA and 18 U.S.C. §
4001(a), which provides that the United States may not detain a US citizen
"except pursuant to an act of Congress." The DOJ argues that just as the
AUMF was deemed to authorize the detention of Hamdi, 542 U.S. at 519, so the
AUMF satisfies FISA's requirement that electronic surveillance be
"authorized by statute." DOJ Letter at 3-4. The analogy is inapt. As noted
above, FISA specifically limits warrantless domestic wartime surveillance to
the first fifteen days of the conflict, and 18 U.S.C. § 2511(2)(f) specifies
that existing law is the "exclusive means" for domestic wiretapping. Section
4001(a), by contrast, neither expressly addresses detention of the enemy
during wartime nor attempts to create an exclusive mechanism for detention.
Moreover, the analogy overlooks the carefully limited holding and rationale
of the Hamdi plurality, which found the AUMF to be an "explicit
congressional authorization for the detention of individuals in the narrow
category we describe...who fought against the United States in Afghanistan
as part of the Taliban, an organization known to have supported the al Qaeda
terrorist network," and whom "Congress sought to target in passing the
AUMF." 542 U.S. at 518. By the government's own admission, the NSA program
is by no means so limited. See Gonzales/Hayden Press Briefing, supra note 4.
[7] See, e.g., S. Rep. No. 95-604, pt. I, at 16 (1977) (Congress's assertion
of power to regulate the President's authorization of electronic
surveillance for foreign intelligence purposes was "concurred in by the
Attorney General"); Foreign Intelligence Electronic Surveillance: Hearings
Before the Subcomm. on Legislation of the House Permanent Select Comm. on
Intelligence, 95th Cong., 2d Sess., at 31 (1978) (Letter from John M.
Harmon, Assistant Attorney General, Office of Legal Counsel, to Edward P.
Boland, Chairman, House Permanent Select Comm. on Intelligence (Apr. 18,
1978)) ("it seems unreasonable to conclude that Congress, in the exercise of
its powers in this area, may not vest in the courts the authority to approve
intelligence surveillance").
[8] Indeed, Article II imposes on the President the general obligation to
enforce laws that Congress has validly enacted, including FISA: "he shall
take Care that the Laws be faithfully executed..." (emphasis added). The use
of the mandatory "shall" indicates that under our system of separation of
powers, he is duty-bound to execute the provisions of FISA, not defy them.
[9] See Memorandum from Jay S. Bybee, Assistant Attorney General, Department
of Justice Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the
President, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§
2340-2340A (Aug. 1, 2002), at 31.
[10] Memorandum from John C. Yoo, Deputy Assistant Attorney General, Office
of Legal Counsel, to the Deputy Counsel to the President, Re: The
President's Constitutional Authority to Conduct Military Operations Against
Terrorists and Nations Supporting Them (September 25, 2001), available at
www.usdoj.gov/olc/warpowers925.htm (emphasis added).
[11] Three years ago, the FISA Court of Review suggested in dictum that
Congress cannot "encroach on the President's constitutional power" to
conduct foreign intelligence surveillance. In re Sealed Case No. 02-001, 310
F.3d 717, 742 (FIS Ct. Rev. 2002) (per curiam). The FISA Court of Review,
however, did not hold that FISA was unconstitutional, nor has any other
court suggested that FISA's modest regulations constitute an impermissible
encroachment on presidential authority. The FISA Court of Review relied upon
United States v. Truong Dihn Hung, 629 F.2d 908 (4th Cir. 1980)—but that
court did not suggest that the President's powers were beyond congressional
control. To the contrary, the Truong court indicated that FISA's
restrictions were constitutional. 629 F.2d at 915 n.4 (noting that "the
imposition of a warrant requirement, beyond the constitutional minimum
described in this opinion, should be left to the intricate balancing
performed in the course of the legislative process by Congress and the
President") (emphasis added).
[12] See Gonzales/Hayden Press Briefing, supra note 4.
[13] During consideration of FISA, the House of Representatives noted, "The
decision as to the standards governing when and how foreign intelligence
electronic surveillance should be conducted is and should be a political
decision...properly made by the political branches of Government together,
not adopted by one branch on its own and with no regard for the other. Under
our Constitution legislation is the embodiment of just such political
decisions." H.R. Conf. Rep. No. 95-1283, pt. 1, at 21-22.
Attorney General Griffin Bell supported FISA in part because "no matter how
well intentioned or ingenious the persons in the Executive branch who
formulate these measures, the crucible of the legislative process will
ensure that the procedures will be affirmed by that branch of government
which is more directly responsible to the electorate." Foreign Intelligence
Surveillance Act of 1978: Hearings Before the Subcommittee on Intelligence
and the Rights of Americans of the Senate Select Committee on Intelligence,
95th Cong., 2d Sess. 12 (1997).
[14] Affiliations are noted for identification purposes only.
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RE: virus: 'On NSA Spying' an open letter to congress.
« Reply #1 on: 2006-01-22 14:16:29 » |
|
I would beg to differ that Clinton went down for a blow job, although
Monica certainly went down on and for him. Clinton beat the impeachment,
won a war in Kosovo, and gained Democratic seats in his lame duck term, all
at the same time. I sure miss that kind of competance. It seems that
Republican revisionism often portrays these events as Clinton's downfall,
if they could only be so effective in their best moments.
> [Original Message]
> From: Blunderov <squooker@mweb.co.za>
> To: <virus@lucifer.com>
> Date: 01/21/2006 2:45:30 PM
> Subject: RE: virus: 'On NSA Spying' an open letter to congress.
>
> [Blunderov] This (below) seems an authoritative opinion. Bush swore to
> uphold the constitution. He has not. In fact, quite the reverse.
>
> How does he continue to survive? It is completely amazing to me. Clinton
> went down because of a blow-job. And yet Bush carries on regardless. The
> only conclusion I can draw is that he must be what America wants. And this
> in spite of the fact that Bin Laden is STILL making video tapes with
> apparent complete impunity.
>
> Best Regards.
>
> http://www.nybooks.com/articles/18650
>
> ON NSA SPYING: A LETTER TO CONGRESS
> By Beth Nolan, Curtis Bradley, David Cole, Geoffrey Stone, Harold Hongju
> Koh, Kathleen M. Sullivan, Laurence H. Tribe, Martin Lederman, Philip B.
> Heymann, Richard Epstein, Ronald Dworkin, Walter Dellinger, William S.
> Sessions, William Van Alstyne
>
> Dear Members of Congress:
>
> We are scholars of constitutional law and former government officials. We
> write in our individual capacities as citizens concerned by the Bush
> administration's National Security Agency domestic spying program, as
> reported in The New York Times, and in particular to respond to the
Justice
> Department's December 22, 2005, letter to the majority and minority
leaders
> of the House and Senate Intelligence Committees setting forth the
> administration's defense of the program.[1] Although the program's secrecy
> prevents us from being privy to all of its details, the Justice
Department's
> defense of what it concedes was secret and warrantless electronic
> surveillance of persons within the United States fails to identify any
> plausible legal authority for such surveillance. Accordingly the program
> appears on its face to violate existing law.
>
> The basic legal question here is not new. In 1978, after an extensive
> investigation of the privacy violations associated with foreign
intelligence
> surveillance programs, Congress and the President enacted the Foreign
> Intelligence Surveillance Act (FISA). Pub. L. 95-511, 92 Stat. 1783. FISA
> comprehensively regulates electronic surveillance within the United
States,
> striking a careful balance between protecting civil liberties and
preserving
> the "vitally important government purpose" of obtaining valuable
> intelligence in order to safeguard national security. S. Rep. No. 95-604,
> pt. 1, at 9 (1977).
>
> With minor exceptions, FISA authorizes electronic surveillance only upon
> certain specified showings, and only if approved by a court. The statute
> specifically allows for warrantless wartime domestic electronic
> surveillance—but only for the first fifteen days of a war. 50 U.S.C. §
1811.
> It makes criminal any electronic surveillance not authorized by statute,
id.
> § 1809; and it expressly establishes FISA and specified provisions of the
> federal criminal code (which govern wiretaps for criminal investigation)
as
> the "exclusive means by which electronic surveillance...may be conducted,"
> 18 U.S.C. § 2511(2)(f) (emphasis added).[2]
>
> The Department of Justice concedes that the NSA program was not authorized
> by any of the above provisions. It maintains, however, that the program
did
> not violate existing law because Congress implicitly authorized the NSA
> program when it enacted the Authorization for Use of Military Force (AUMF)
> against al-Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF
> cannot reasonably be construed to implicitly authorize warrantless
> electronic surveillance in the United States during wartime, where
Congress
> has expressly and specifically addressed that precise question in FISA and
> limited any such warrantless surveillance to the first fifteen days of
war.
>
> The DOJ also invokes the President's inherent constitutional authority as
> Commander in Chief to collect "signals intelligence" targeted at the
enemy,
> and maintains that construing FISA to prohibit the President's actions
would
> raise constitutional questions. But even conceding that the President in
his
> role as Commander in Chief may generally collect "signals intelligence" on
> the enemy abroad, Congress indisputably has authority to regulate
electronic
> surveillance within the United States, as it has done in FISA. Where
> Congress has so regulated, the President can act in contravention of
statute
> only if his authority is exclusive, that is, not subject to the check of
> statutory regulation. The DOJ letter pointedly does not make that
> extraordinary claim.
>
> Moreover, to construe the AUMF as the DOJ suggests would itself raise
> serious constitutional questions under the Fourth Amendment. The Supreme
> Court has never upheld warrantless wiretapping within the United States.
> Accordingly, the principle that statutes should be construed to avoid
> serious constitutional questions provides an additional reason for
> concluding that the AUMF does not authorize the President's actions here.
>
> 1.
> Congress did not implicitly authorize the NSA domestic spying program in
the
> AUMF, and in fact expressly prohibited it in FISA
> The DOJ concedes (Letter at 4) that the NSA program involves "electronic
> surveillance," which is defined in FISA to mean the interception of the
> contents of telephone, wire, or e-mail communications that occur, at least
> in part, in the United States. 50 U.S.C. §§ 1801(f)(1)-(2), 1801(n). The
NSA
> engages in such surveillance without judicial approval, and apparently
> without the substantive showings that FISA requires—e.g., that the subject
> is an "agent of a foreign power." Id. § 1805(a). The DOJ does not argue
that
> FISA itself authorizes such electronic surveillance; and, as the DOJ
letter
> acknowledges, 18 U.S.C. § 1809 makes criminal any electronic surveillance
> not authorized by statute.
>
> The DOJ nevertheless contends that the surveillance is authorized by the
> AUMF, signed on September 18, 2001, which empowers the President to use
"all
> necessary and appropriate force against" al-Qaeda. According to the DOJ,
> collecting "signals intelligence" on the enemy, even if it involves
tapping
> US phones without court approval or probable cause, is a "fundamental
> incident of war" authorized by the AUMF. This argument fails for four
> reasons.
>
> First, and most importantly, the DOJ's argument rests on an unstated
general
> "implication" from the AUMF that directly contradicts express and specific
> language in FISA. Specific and "carefully drawn" statutes prevail over
> general statutes where there is a conflict. Morales v. TWA, Inc., 504 U.S.
> 374, 384-85 (1992) (quoting International Paper Co. v. Ouelette, 479 U.S.
> 481, 494 (1987)). In FISA, Congress has directly and specifically spoken
on
> the question of domestic warrantless wiretapping, including during
wartime,
> and it could not have spoken more clearly.
>
> As noted above, Congress has comprehensively regulated all electronic
> surveillance in the United States, and authorizes such surveillance only
> pursuant to specific statutes designated as the "exclusive means by which
> electronic surveillance...and the interception of domestic wire, oral, and
> electronic communications may be conducted." 18 U.S.C. § 2511(2)(f)
> (emphasis added). Moreover, FISA specifically addresses the question of
> domestic wiretapping during wartime. In a provision entitled
"Authorization
> during time of war," FISA dictates that "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." 50 U.S.C. § 1811
(emphasis
> added). Thus, even where Congress has declared war—a more formal step than
> an authorization such as the AUMF —the law limits warrantless wiretapping
to
> the first fifteen days of the conflict. Congress explained that if the
> President needed further warrantless surveillance during wartime, the
> fifteen days would be sufficient for Congress to consider and enact
further
> authorization.[3] Rather than follow this course, the President acted
> unilaterally and secretly in contravention of FISA's terms. The DOJ letter
> remarkably does not even mention FISA's fifteen-day war provision, which
> directly refutes the President's asserted "implied" authority.
>
> In light of the specific and comprehensive regulation of FISA, especially
> the fifteen-day war provision, there is no basis for finding in the AUMF's
> general language implicit authority for unchecked warrantless domestic
> wiretapping. As Justice Frankfurter stated in rejecting a similar argument
> by President Truman when he sought to defend the seizure of the steel
mills
> during the Korean War on the basis of implied congressional authorization:
>
> It is one thing to draw an intention of Congress from general language and
> to say that Congress would have explicitly written what is inferred, where
> Congress has not addressed itself to a specific situation. It is quite
> impossible, however, when Congress did specifically address itself to a
> problem, as Congress did to that of seizure, to find secreted in the
> interstices of legislation the very grant of power which Congress
> consciously withheld. To find authority so explicitly withheld is...to
> disrespect the whole legislative process and the constitutional division
of
> authority between President and Congress. Youngstown Sheet & Tube Co. v.
> Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring).
> Second, the DOJ's argument would require the conclusion that Congress
> implicitly and sub silentio repealed 18 U.S.C. § 2511(2)(f), the provision
> that identifies FISA and specific criminal code provisions as "the
exclusive
> means by which electronic surveillance...may be conducted." Repeals by
> implication are strongly disfavored; they can be established only by
> "overwhelming evidence," J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int'l,
> Inc., 534 U.S. 124, 137 (2001), and "‘the only permissible justification
for
> a repeal by implication is when the earlier and later statutes are
> irreconcilable,'" id. at 141–142 (quoting Morton v. Mancari, 417 U.S. 535,
> 550 (1974)). The AUMF and § 2511(2)(f) are not irreconcilable, and there
is
> no evidence, let alone overwhelming evidence, that Congress intended to
> repeal § 2511(2)(f).
>
> Third, Attorney General Alberto Gonzales has admitted that the
> administration did not seek to amend FISA to authorize the NSA spying
> program because it was advised that Congress would reject such an
> amendment.[4] The administration cannot argue on the one hand that
Congress
> authorized the NSA program in the AUMF, and at the same time that it did
not
> ask Congress for such authorization because it feared Congress would say
> no.[5]
>
> Finally, the DOJ's reliance upon Hamdi v. Rumsfeld, 542 U.S. 507 (2004),
to
> support its reading of the AUMF, see DOJ Letter at 3, is misplaced. A
> plurality of the Court in Hamdi held that the AUMF authorized military
> detention of enemy combatants captured on the battlefield abroad as a
> "fundamental incident of waging war." Id. at 519. The plurality expressly
> limited this holding to individuals who were "part of or supporting forces
> hostile to the United States or coalition partners in Afghanistan and who
> engaged in an armed conflict against the United States there." Id. at 516
> (emphasis added). It is one thing, however, to say that foreign
battlefield
> capture of enemy combatants is an incident of waging war that Congress
> intended to authorize. It is another matter entirely to treat unchecked
> war-rantless domestic spying as included in that authorization, especially
> where an existing statute specifies that other laws are the "exclusive
> means" by which electronic surveillance may be conducted and provides that
> even a declaration of war authorizes such spying only for a fifteen-day
> emergency period.[6]
>
> 2.
> Construing FISA to prohibit warrantless domestic wiretapping does not
raise
> any serious constitutional question, while construing the AUMF to
authorize
> such wiretapping would raise serious questions under the Fourth Amendment
> The DOJ argues that FISA and the AUMF should be construed to permit the
NSA
> program's domestic surveillance because there otherwise might be a
"conflict
> between FISA and the President's Article II authority as
> Commander-in-Chief." DOJ Letter at 4. The statutory scheme described above
> is not ambiguous, and therefore the constitutional avoidance doctrine is
not
> even implicated. See United States v. Oakland Cannabis Buyers' Coop., 532
> U.S. 483, 494 (2001) (the "canon of constitutional avoidance has no
> application in the absence of statutory ambiguity"). But were it
implicated,
> it would work against the President, not in his favor. Construing FISA and
> the AUMF according to their plain meanings raises no serious
constitutional
> questions regarding the President's duties under Article II. Construing
the
> AUMF to permit unchecked warrantless wiretapping without probable cause,
> however, would raise serious questions under the Fourth Amendment.
>
> A. FISA's Limitations are consistent with the President's Article II role
> We do not dispute that, absent congressional action, the President might
> have inherent constitutional authority to collect "signals intelligence"
> about the enemy abroad. Nor do we dispute that, had Congress taken no
action
> in this area, the President might well be constitutionally empowered to
> conduct domestic surveillance directly tied and narrowly confined to that
> goal—subject, of course, to Fourth Amendment limits. Indeed, in the years
> before FISA was enacted, the federal law involving wiretapping
specifically
> provided that "nothing contained in this chapter or in section 605 of the
> Communications Act of 1934 shall limit the constitutional power of the
> President...to obtain foreign intelligence information deemed essential to
> the security of the United States." 18 U.S.C. § 2511(3) (1976).
>
> But FISA specifically repealed that provision, FISA § 201(c), 92 Stat.
1797,
> and replaced it with language dictating that FISA and the criminal code
are
> the "exclusive means" of conducting electronic surveillance. In doing so,
> Congress did not deny that the President has constitutional power to
conduct
> electronic surveillance for national security purposes; rather, Congress
> properly concluded that "even if the President has the inherent authority
in
> the absence of legislation to authorize warrantless electronic
surveillance
> for foreign intelligence purposes, Congress has the power to regulate the
> conduct of such surveillance by legislating a reasonable procedure, which
> then becomes the exclusive means by which such surveillance may be
> conducted." H.R. Rep. No. 95-1283, pt. 1, at 24 (1978) (emphasis added).
> This analysis, Congress noted, was "supported by two successive Attorneys
> General." Id.
>
> To say that the President has inherent authority does not mean that his
> authority is exclusive, or that his conduct is not subject to statutory
> regulations enacted (as FISA was) pursuant to Congress's Article I powers.
> As Justice Jackson famously explained in his influential opinion in
> Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635 (Jackson, J.,
> concurring), the Constitution "enjoins upon its branches separateness but
> interdependence, autonomy but reciprocity. Presidential powers are not
fixed
> but fluctuate, depending upon their disjunction or conjunction with those
of
> Congress." For example, the President in his role as Commander in Chief
> directs military operations. But the Framers gave Congress the power to
> prescribe rules for the regulation of the armed and naval forces, Art. I,
§
> 8, cl. 14, and if a duly enacted statute prohibits the military from
> engaging in torture or cruel, inhuman, and degrading treatment, the
> President must follow that dictate. As Justice Jackson wrote, when the
> President acts in defiance of "the expressed or implied will of Congress,"
> his power is "at its lowest ebb." 343 U.S. at 637. In this setting,
Jackson
> wrote, "Presidential power [is] most vulnerable to attack and in the least
> favorable of all constitutional postures." Id. at 640.
>
> Congress plainly has authority to regulate domestic wiretapping by federal
> agencies under its Article I powers, and the DOJ does not suggest
otherwise.
> Indeed, when FISA was enacted, the Justice Department agreed that Congress
> had power to regulate such conduct, and could require judicial approval of
> foreign intelligence surveillance.[7] FISA does not prohibit foreign
> intelligence surveillance, but merely imposes reasonable regulation to
> protect legitimate privacy rights. (For example, although FISA generally
> requires judicial approval for electronic surveillance of persons within
the
> United States, it permits the executive branch to install a wiretap
> immediately so long as it obtains judicial approval within seventy-two
> hours. 50 U.S.C. § 1805(f).)
>
> Just as the President is bound by the statutory prohibition on torture, he
> is bound by the statutory dictates of FISA.[8] The DOJ once infamously
> argued that the President as Commander in Chief could ignore even the
> criminal prohibition on torture,[9] and, more broadly still, that statutes
> may not "place any limits on the President's determinations as to any
> terrorist threat, the amount of military force to be used in response, or
> the method, timing, and nature of the response."[10] But the
administration
> withdrew the August 2002 torture memo after it was disclosed, and for good
> reason the DOJ does not advance these extreme arguments here. Absent a
> serious question about FISA's constitutionality, there is no reason even
to
> consider construing the AUMF to have implicitly overturned the carefully
> designed regulatory regime that FISA establishes. See, e.g., Reno v.
Flores,
> 507 U.S. 292, 314 n.9 (1993) (constitutional avoidance canon applicable
only
> if the constitutional question to be avoided is a serious one, "not to
> eliminate all possible contentions that the statute might be
> unconstitutional") (emphasis in original; citation omitted).[11]
>
> B. Construing the AUMF to authorize warrantless domestic wiretapping would
> raise serious constitutional questions
> The principle that ambiguous statutes should be construed to avoid serious
> constitutional questions works against the administration, not in its
favor.
> Interpreting the AUMF and FISA to permit unchecked domestic wiretapping
for
> the duration of the conflict with al-Qaeda would certainly raise serious
> constitutional questions. The Supreme Court has never upheld such a
sweeping
> power to invade the privacy of Americans at home without individualized
> suspicion or judicial oversight.
>
> The NSA surveillance program permits wiretapping within the United States
> without either of the safeguards presumptively required by the Fourth
> Amendment for electronic surveillance —individualized probable cause and a
> warrant or other order issued by a judge or magistrate. The Court has long
> held that wiretaps generally require a warrant and probable cause. Katz v.
> United States, 389 U.S. 347 (1967). And the only time the Court considered
> the question of national security wiretaps, it held that the Fourth
> Amendment prohibits domestic security wiretaps without those safeguards.
> United States v. United States District Court, 407 U.S. 297 (1972).
Although
> the Court in that case left open the question of the Fourth Amendment
> validity of warrantless wiretaps for foreign intelligence purposes, its
> precedents raise serious constitutional questions about the kind of
> open-ended authority the President has asserted with respect to the NSA
> program. See id. at 316-18 (explaining difficulty of guaranteeing Fourth
> Amendment freedoms if domestic surveillance can be conducted solely in the
> discretion of the executive branch).
>
> Indeed, serious Fourth Amendment questions about the validity of
warrantless
> wiretapping led Congress to enact FISA, in order to "provide the secure
> framework by which the executive branch may conduct legitimate electronic
> surveillance for foreign intelligence purposes within the context of this
> nation's commitment to privacy and individual rights." S. Rep. No. 95-604,
> at 15 (1978) (citing, inter alia, Zweibon v. Mitchell, 516 F.2d 594 (D.C.
> Cir. 1975), cert. denied, 425 U.S. 944 (1976), in which the court of
appeals
> held that a warrant must be obtained before a wiretap is installed on a
> domestic organization that is neither the agent of, nor acting in
> collaboration with, a foreign power).
>
> Relying on In re Sealed Case No. 02-001, the DOJ argues that the NSA
program
> falls within an exception to the warrant and probable cause requirement
for
> reasonable searches that serve "special needs" above and beyond ordinary
law
> enforcement. But the existence of "special needs" has never been found to
> permit warrantless wiretapping. "Special needs" generally excuse the
warrant
> and individualized suspicion requirements only where those requirements
are
> impracticable and the intrusion on privacy is minimal. See, e.g., Griffin
v.
> Wisconsin, 483 U.S. 868, 873 (1987). Wiretapping is not a minimal
intrusion
> on privacy, and the experience of FISA shows that foreign intelligence
> surveillance can be carried out through warrants based on individualized
> suspicion.
>
> The court in Sealed Case upheld FISA itself, which requires warrants
issued
> by Article III federal judges upon an individualized showing of probable
> cause that the subject is an "agent of a foreign power." The NSA domestic
> spying program, by contrast, includes none of these safeguards. It does
not
> require individualized judicial approval, and it does not require a
showing
> that the target is an "agent of a foreign power." According to Attorney
> General Gonzales, the NSA may wiretap any person in the United States who
so
> much as receives a communication from anyone abroad, if the administration
> deems either of the parties to be affiliated with al-Qaeda, a member of an
> organization affiliated with al-Qaeda, "working in support of al Qaeda,"
or
> "part of" an organization or group "that is supportive of al Qaeda."[12]
> Under this reasoning, a US citizen living here who received a phone call
> from another US citizen who attends a mosque that the administration
> believes is "supportive" of al-Qaeda could be wiretapped without a
warrant.
> The absence of meaningful safeguards on the NSA program at a minimum
raises
> serious questions about the validity of the program under the Fourth
> Amendment, and therefore supports an interpretation of the AUMF that does
> not undercut FISA's regulation of such conduct.
>
> In conclusion, the DOJ letter fails to offer a plausible legal defense of
> the NSA domestic spying program. If the administration felt that FISA was
> insufficient, the proper course was to seek legislative amendment, as it
did
> with other aspects of FISA in the Patriot Act, and as Congress expressly
> contemplated when it enacted the wartime wiretap provision in FISA. One of
> the crucial features of a constitutional democracy is that it is always
open
> to the President—or anyone else—to seek to change the law. But it is also
> beyond dispute that, in such a democracy, the President cannot simply
> violate criminal laws behind closed doors because he deems them obsolete
or
> impracticable.[13]
>
> We hope you find these views helpful to your consideration of the legality
> of the NSA domestic spying program.
>
> Curtis Bradley, Duke Law School, former Counselor on International Law in
> the State Department Legal Adviser's Office[14]
>
> David Cole, Georgetown University Law Center
>
> Walter Dellinger, Duke Law School, former Deputy Assistant Attorney
General,
> Office of Legal Counsel and Acting Solicitor General
>
> Ronald Dworkin, NYU Law School
>
> Richard Epstein, University of Chicago Law School, Senior Fellow, Hoover
> Institution
>
> Philip B. Heymann, Harvard Law School, former Deputy Attorney General
>
> Harold Hongju Koh, Dean, Yale Law School, former Assistant Secretary of
> State for Democracy, Human Rights and Labor, former Attorney-Adviser,
Office
> of Legal Counsel, DOJ
>
> Martin Lederman, Georgetown University Law Center, former
Attorney-Adviser,
> Office of Legal Counsel, DOJ
>
> Beth Nolan, former Counsel to the President and Deputy Assistant Attorney
> General, Office of Legal Counsel
>
> William S. Sessions, former Director, FBI, former Chief United States
> District Judge
>
> Geoffrey Stone, Professor of Law and former Provost, University of Chicago
>
> Kathleen Sullivan, Professor and former Dean, Stanford Law School
>
> Laurence H. Tribe, Harvard Law School
>
> William Van Alstyne, William & Mary Law School, former Justice Department
> attorney
>
> Notes
> [1] The Justice Department letter can be found at
> www.nationalreview.com/pdf/12%2022%2005%20NSA%20letter.pdf.
>
> [2] More detail about the operation of FISA can be found in Congressional
> Research Service, "Presidential Authority to Conduct Warrantless
Electronic
> Surveillance to Gather Foreign Intelligence Information" (January 5,
2006).
> This letter was drafted prior to release of the CRS Report, which
> corroborates the conclusions drawn here.
>
> [3] "The Conferees intend that this [15-day] period will allow time for
> consideration of any amendment to this act that may be appropriate during
a
> wartime emergency.... The conferees expect that such amendment would be
> reported with recommendations within 7 days and that each House would vote
> on the amendment within 7 days thereafter." H.R. Conf. Rep. No. 95-1720,
at
> 34 (1978).
>
> [4] Attorney General Gonzales stated, "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." Press Briefing
by
> Attorney General Alberto Gonzales and General Michael Hayden, Principal
> Deputy Director for National Intelligence (December 19, 2005), available
at
> www.whitehouse.gov/news/releases/2005/12/20051219-1.html.
>
> [5] The administration had a convenient vehicle for seeking any such
> amendment in the USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat.
272,
> enacted in October 2001. The Patriot Act amended FISA in several respects,
> including in sections 218 (allowing FISA wiretaps in criminal
> investigations) and 215 (popularly known as the "libraries provision").
Yet
> the administration did not ask Congress to amend FISA to authorize the
> warrantless electronic surveillance at issue here.
>
> [6] The DOJ attempts to draw an analogy between FISA and 18 U.S.C. §
> 4001(a), which provides that the United States may not detain a US citizen
> "except pursuant to an act of Congress." The DOJ argues that just as the
> AUMF was deemed to authorize the detention of Hamdi, 542 U.S. at 519, so
the
> AUMF satisfies FISA's requirement that electronic surveillance be
> "authorized by statute." DOJ Letter at 3-4. The analogy is inapt. As noted
> above, FISA specifically limits warrantless domestic wartime surveillance
to
> the first fifteen days of the conflict, and 18 U.S.C. § 2511(2)(f)
specifies
> that existing law is the "exclusive means" for domestic wiretapping.
Section
> 4001(a), by contrast, neither expressly addresses detention of the enemy
> during wartime nor attempts to create an exclusive mechanism for
detention.
> Moreover, the analogy overlooks the carefully limited holding and
rationale
> of the Hamdi plurality, which found the AUMF to be an "explicit
> congressional authorization for the detention of individuals in the narrow
> category we describe...who fought against the United States in Afghanistan
> as part of the Taliban, an organization known to have supported the al
Qaeda
> terrorist network," and whom "Congress sought to target in passing the
> AUMF." 542 U.S. at 518. By the government's own admission, the NSA program
> is by no means so limited. See Gonzales/Hayden Press Briefing, supra note
4.
>
> [7] See, e.g., S. Rep. No. 95-604, pt. I, at 16 (1977) (Congress's
assertion
> of power to regulate the President's authorization of electronic
> surveillance for foreign intelligence purposes was "concurred in by the
> Attorney General"); Foreign Intelligence Electronic Surveillance: Hearings
> Before the Subcomm. on Legislation of the House Permanent Select Comm. on
> Intelligence, 95th Cong., 2d Sess., at 31 (1978) (Letter from John M.
> Harmon, Assistant Attorney General, Office of Legal Counsel, to Edward P.
> Boland, Chairman, House Permanent Select Comm. on Intelligence (Apr. 18,
> 1978)) ("it seems unreasonable to conclude that Congress, in the exercise
of
> its powers in this area, may not vest in the courts the authority to
approve
> intelligence surveillance").
>
> [8] Indeed, Article II imposes on the President the general obligation to
> enforce laws that Congress has validly enacted, including FISA: "he shall
> take Care that the Laws be faithfully executed..." (emphasis added). The
use
> of the mandatory "shall" indicates that under our system of separation of
> powers, he is duty-bound to execute the provisions of FISA, not defy them.
>
> [9] See Memorandum from Jay S. Bybee, Assistant Attorney General,
Department
> of Justice Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the
> President, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§
> 2340-2340A (Aug. 1, 2002), at 31.
>
> [10] Memorandum from John C. Yoo, Deputy Assistant Attorney General,
Office
> of Legal Counsel, to the Deputy Counsel to the President, Re: The
> President's Constitutional Authority to Conduct Military Operations
Against
> Terrorists and Nations Supporting Them (September 25, 2001), available at
> www.usdoj.gov/olc/warpowers925.htm (emphasis added).
>
> [11] Three years ago, the FISA Court of Review suggested in dictum that
> Congress cannot "encroach on the President's constitutional power" to
> conduct foreign intelligence surveillance. In re Sealed Case No. 02-001,
310
> F.3d 717, 742 (FIS Ct. Rev. 2002) (per curiam). The FISA Court of Review,
> however, did not hold that FISA was unconstitutional, nor has any other
> court suggested that FISA's modest regulations constitute an impermissible
> encroachment on presidential authority. The FISA Court of Review relied
upon
> United States v. Truong Dihn Hung, 629 F.2d 908 (4th Cir. 1980)—but that
> court did not suggest that the President's powers were beyond
congressional
> control. To the contrary, the Truong court indicated that FISA's
> restrictions were constitutional. 629 F.2d at 915 n.4 (noting that "the
> imposition of a warrant requirement, beyond the constitutional minimum
> described in this opinion, should be left to the intricate balancing
> performed in the course of the legislative process by Congress and the
> President") (emphasis added).
>
> [12] See Gonzales/Hayden Press Briefing, supra note 4.
>
> [13] During consideration of FISA, the House of Representatives noted,
"The
> decision as to the standards governing when and how foreign intelligence
> electronic surveillance should be conducted is and should be a political
> decision...properly made by the political branches of Government together,
> not adopted by one branch on its own and with no regard for the other.
Under
> our Constitution legislation is the embodiment of just such political
> decisions." H.R. Conf. Rep. No. 95-1283, pt. 1, at 21-22.
>
> Attorney General Griffin Bell supported FISA in part because "no matter
how
> well intentioned or ingenious the persons in the Executive branch who
> formulate these measures, the crucible of the legislative process will
> ensure that the procedures will be affirmed by that branch of government
> which is more directly responsible to the electorate." Foreign
Intelligence
> Surveillance Act of 1978: Hearings Before the Subcommittee on Intelligence
> and the Rights of Americans of the Senate Select Committee on
Intelligence,
> 95th Cong., 2d Sess. 12 (1997).
>
> [14] Affiliations are noted for identification purposes only.
>
>
>
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> --
> No virus found in this incoming message.
> Checked by AVG Free Edition.
> Version: 7.1.375 / Virus Database: 267.14.21/236 - Release Date:
01/20/2006
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I will fight your gods for food,
Mo Enzyme
(consolidation of handles: Jake Sapiens; memelab; logicnazi; Loki; Every1Hz; and Shadow)
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Blunderov
Archon
Gender:
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Reputation: 8.90
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"We think in generalities, we live in details"
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RE: virus: 'On NSA Spying' an open letter to congress.
« Reply #2 on: 2006-01-23 01:27:19 » |
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[Blunderov] Yes, I stand corrected. I had forgotten that he was acquitted in
the end.
And yes, his, or apparently any, competence is sadly missed. But perhaps
'the darkest hour' and all that?
Somewhat tangentially, here is an essay that attracted my attention.
http://www.philosophersnet.com/magazine/article.php?id=799
Open Debate: Spin, Truth and Lies
Stephen Burwood
<snip>
Winston Churchill said that "In war, the truth must be accompanied by a
bodyguard of lies." But what about in the run-up to a war? I refer to the
difficulties the British government, and in particular the British Prime
Minister, Tony Blair, had and still has in making the case for war with
Saddam Hussein's Iraq .
Clare Short famously accused Blair of perpetrating an "honourable deception"
in presenting the case for war. Most of the press took Short's phrase as a
thin euphemism for a "lie" and were suitably outraged at the possibility
that a British Prime Minister might engage in trickery and deception. What
lay behind this reaction was the belief that politicians in a democracy
ought not to lie, even if we also believe that they do, almost as a matter
of course. Judging by the press coverage following the war, when WMD were
and are conspicuous by their absence, this is a belief apparently still
fervently held by the British press (at least, they present themselves as if
they believe this).
But what is a lie?...</snip>
-----Original Message-----
From: owner-virus@lucifer.com [mailto:owner-virus@lucifer.com] On Behalf Of
Jake
Sent: 22 January 2006 21:16
To: virus@lucifer.com
Subject: RE: virus: 'On NSA Spying' an open letter to congress.
I would beg to differ that Clinton went down for a blow job, although
Monica certainly went down on and for him. Clinton beat the impeachment,
won a war in Kosovo, and gained Democratic seats in his lame duck term, all
at the same time. I sure miss that kind of competance. It seems that
Republican revisionism often portrays these events as Clinton's downfall,
if they could only be so effective in their best moments.
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Blunderov
Archon
Gender:
Posts: 3160
Reputation: 8.90
Rate Blunderov
"We think in generalities, we live in details"
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RE: virus: 'On NSA Spying' an open letter to congress.
« Reply #3 on: 2006-01-23 01:57:35 » |
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[Blunderov] Thanks to Limbic Nutrition for this link.
I found the phrase "The most dangerous person in corporate America is the
highly enthusiastic incompetent. He's running faster in the wrong direction,
doing horribly counterproductive things with winning enthusiasm" especially
arresting.
Best regards.
<snip>
January 1, 2006 latimes.com
HOW WE LIVE
Self-help's big lie
By Steve Salerno, Steve Salerno's latest book is "SHAM: How the Self-Help
Movement Made America Helpless."
EVER SINCE the United States began weaning itself off the sociological junk
food of victimization and its culture of blame, the pop-psychology menu
increasingly has been flavored by an antithetical concept - empowerment -
that can be summarized as: Believe it, achieve it.
Nowadays, Fortune 500 conglomerates draft business plans with bullet points
drawn from Laker coach-cum-inspirational guru Phil Jackson's Zen optimism.
Couples write partnership covenants based on the utopian blather of John
Gray. Millions of everyday Americans owe their feelings of "personal power"
to erstwhile firewalker Tony Robbins, arguably the father of today's
mass-market empowerment. And there is Oprah, who is seldom categorized as a
guru in her own right but whose status as the movement's eminence grise is
beyond dispute: The road to self-help's promised land, and a bite of its
$10-billion fruit (as tracked by Marketdata Enterprises), runs straight
through Harpo Productions. The nostrums delivered by these and other
self-help celebrities form a cultural given, an uncontested - and, we are
led to believe, incontestable - foundation for today's starry-eyed
zeitgeist.
ADVERTISEMENT
Lost in the adulation is the downside of being uplifted. In truth, the
overselling of personal empowerment - the hyping of hope - may be the great
unsung irony of modern American life, destined to disappoint as surely as
the pity party that it was meant to replace.
In U.S. schools, the crusade to imbue kids with that most slippery of
notions - self-esteem - has been unambiguously disastrous (and has recently
been disavowed by a number of its loudest early voices). Self-esteem-based
education presupposed that a healthy ego would help students achieve
greatness, even if the mechanisms necessary to instill self-esteem undercut
scholarship. Over time, it became clear that what such policies promote is
not academic greatness but a bizarre disconnect between perceived self-worth
and provable skill.
Over a 20-year span beginning in the early 1970s, the average SAT score fell
by 35 points. But in that same period, the contingent of college-bound
seniors who boasted an A or B average jumped from 28% to an astonishing 83%,
as teachers felt increasing pressure to adopt more "supportive" grading
policies. Tellingly, in a 1989 study of comparative math skills among
students in eight nations, Americans ranked lowest in overall competence,
Koreans highest - but when researchers asked the students how good they
thought they were at math, the results were exactly opposite: Americans
highest, Koreans lowest. Meanwhile, data from 1999's omnibus Third
International Mathematics and Science Study, ranking 12th-graders from 23
nations, put U.S. students in 20th place, besting only South Africa,
Lithuania and Cyprus.
Still, the U.S. keeps dressing its young in their emperors' new egos,
passing them on to the next set of empowering curricula. If you teach at the
college level, as I do, at some point you will be confronted with a student
seeking redress over the grade you gave him because "I'm pre-med!" Not until
such students reach med school do they encounter truly inelastic standards:
a comeuppance for them but a reprieve for those who otherwise might find
ourselves anesthetized beneath their second-rate scalpel.
The larger point is that society has embraced such concepts as self-esteem
and confidence despite scant evidence that they facilitate positive
outcomes. The work of psychologists Roy Baumeister and Martin Seligman
suggests that often, high self-worth is actually a marker for negative
behavior, as found in sociopaths and drug kingpins. Even in its less extreme
manifestations, confidence may easily be expressed in the kind of
braggadocio - "I'm fine just the way I am, thank you" - that stunts growth,
yielding chronic failure.
Then again, one never really fails in this brave new (euphemistic) world.
"There is no such thing as failure," posits a core maxim of neuro-linguistic
programming, the regimen from which Robbins drew much of his patter. Among
empowered thinkers, reality becomes an arbitrary affair, with each
individual deciding his or her personal truth.
Consider healthcare, where vague notions of personal empowerment are a key
factor in the startling American exodus from traditional medicine. A
comprehensive study reported in the medical journal JAMA pegged the number
of patient visits to alternative-medicine practitioners at 629 million a
year, easily eclipsing the 386 million visits to conventional MDs. In
theory, these defections represent a desire for "self-empowered healing"
that will "put people in charge of their healthcare destiny," to quote one
holistic health website. In practice, the trend puts hordes of Americans at
the mercy of quacks who shrewdly position themselves at the nexus of mind
and body. It behooves us to remember that feeling better about a health
problem is not the same as doing better.
Nonetheless, with such highly visible exponents of latter-day empowerment as
Robbins, Winfrey and Winfrey's principal protege, Dr. Phil McGraw, fanning
the flames, a generation has come of age on the belief that a positive
mental attitude will carry the day. Far from helping his disciples, the
empowerment guru does them a disservice by making them "think positive"
about a situation in which the odds of success are exceedingly low. As top
management consultant Jay Kurtz argues: "The most dangerous person in
corporate America is the highly enthusiastic incompetent. He's running
faster in the wrong direction, doing horribly counterproductive things with
winning enthusiasm."
You cannot have a life plan predicated on the belief that everything is
equally achievable to you - especially if that same message has been sold
indiscriminately to all comers. In the grand scheme of things, knowing one's
limitations may be even more important than knowing one's talents. </snip>
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