This is -- I'll repeat to you that you hear words: domestic spying. These are not phone calls within the United States. This is a phone call of an Al Qaida, known Al Qaida suspect, making a phone call into the United States.
I'm mindful of your civil liberties, and so I had all kinds of lawyers review the process. We briefed members of the United States Congress, one of whom was Senator Pat Roberts, about this program.
You know, it's amazing that people say to me, "Well, he was just breaking the law."
If I wanted to break the law, why was I briefing Congress?
(LAUGHTER)
(APPLAUSE)
Federal courts have consistently ruled that a president has authority under the Constitution to conduct foreign intelligence surveillance against our enemies. Predecessors of mine have used that same constitutional authority.
BUSH: Recently, there was a Supreme Court case called the Haas case. It ruled -- the authorization for the use of military force passed by the Congress in 2001 -- in other words, the Congress passed this piece of legislation, and the court ruled, the Supreme Court ruled it that it gave the president additional authority to use what it called the fundamental incidents of waging war against Al Qaida.
I'm not a lawyer, but I can tell you what it means: It means Congress gave me the authority to use necessary force to protect the American people, but it didn't prescribe the tactics. It said, "Mr. President, you've got the power to protect us, but we're not going to tell you how."
And one of the ways to protect the American people is to understand the intentions of the enemy. I told you it's a different kind of war with a different kind of enemy. If they're making phone calls into the United States, we need to know why to protect you.
First of all, Bush is airbrushing an important fact. He repeatedly refers to the NSA monitoring phone calls into the United States. But the NSA was always allowed to monitor incoming international calls without FISA warrants, as long as the results could not be used against Americans; the point is that, under the Bush policy, this rule was also applied to outgoing international calls.
Secondly, to quote Joe Gandelman at The Moderate Voice:
So he argues he was trying to protect Americans (fair enough) and that it's vital to know the enemy's intentions (fair enough). But neither of these factors explain why it was somehow impossible to understand the intentions of the enemy either by either using warrants, getting warrants after the fact as allowed by FISA or by going to Congress and having them make any changes that would have made the functioning of the FISA law more efficient in the eyes of the administration.
Wesley Clark basically made the same point on Fox this morning, and I have to say I agree.
As for Bush briefing Congress: Clark pointed out that only a few members of Congress were briefed about the surveillance program, their objections were given no weight, and since the program was highly classified they were bound by secrecy not to go public with their concerns about it. This is not my (or, I hope, anyone's) idea of legislative oversight.
I am still not convinced by the rationales given by Bush defenders for bypassing those FISA warrants. Yes, sometimes speed is of the essence, but as critics have repeatedly pointed out, the warrants can be obtained retroactively up to 72 hours later. The other reason that has been cited is the possibility of leaking and the need to prevent it; but are those concerns based on any actual instances of leaking? I would think that FISA courts, set up specifically to deal with foreign intelligence surveillance, know how to keep their secrets.
But, once again: if Bush and his advisors were so convinced that warrantless surveillance was necessary, why not specifcially ask Congress for those powers? So as not to tip off the Al Qaeda and the rest of the terror network? Sorry, but I don't see why the Al Qaeda would change its behavior based on the knowledge that its operatives can be subject to warrantless surveillance; surely terrorists would assume that U.S. intelligence agencies would have no trouble obtaining warrants to monitor Al Qaeda communications.
So far, none of the explanations are wholly convincing, and this executive power grab remains troubling.
27 comments:
It is also worth noting that, during the debate over the AUMF, Congress discussed adding a provision to allow the President to eavesdrop without a warrant, and rejected it.
And now the President claims that the AUMF allows him to do just that.
Rainsborough, have you read the statute? I haven't, and I'm not a lawyer. This area of the law is not as cut-and-dried as you would seem to think it is.
I recall seeing somewhere or other the requirements for obtaining a warrant to eavesdrop. It's not a checklist of items you can muster in 10 or 15 minutes; it's a long list of documents that could easily take several days to prepare. So I can see where the 72-hour window isn't really all that much help.
Really what needs to happen is that all of our laws governing surveillance have to be revised in light of the capabilities of modern technology, and with an eye towards what future capabilities might be. These laws were all written before cell phones and before the internet, and trying to shoe-horn monitoring of current communication behaviors into methods dictated by old technology is ridiculous. The White House and Congress should both be agitating for this change, and it's disappointing that no one is.
I admit that I'm with the majority of Americans in not being too disturbed by the program as described. If illegally obtained wire-tap evidence is used to indict an American citizen, I'll be very upset. But there's no evidence or even a hint of anything like that happening. Of course we need to do everything we can to prevent such a thing from happening, but it's not likely that the administration would get a pass from anyone if it actually was trampling citizens' civil rights. There have been any number of exclamations about abuse of power, but until actual harm has been demonstrated, I don't think those cries are going to sway anyone's opinion. The benefit of catching terrorists outweighs the potential harm, at least to the majority of Americans at this point.
joan wrote: "If illegally obtained wire-tap evidence is used to indict an American citizen, I'll be very upset. But there's no evidence or even a hint of anything like that happening. Of course we need to do everything we can to prevent such a thing from happening . . . "
Yes, we do need to prevent that from happening. Maybe we should pass a law against it -
Oh, wait. That law was already passed. In 1978. And now the President is breaking it.
Question: If ONLY a judge can issue a warrant...
AND...
...this authority is a CONSTITUTIONAL mandate...
AND...
...the reasoning behind this mandate is the protection of the individual liberties of the person to be "surveiled" and so BEFORE being issued a warrant the executive branch authorities have to ASK a judge for the warrant and SHOW PROOF in ADVANCE of why they should get the warrant...
Then by what authority does Congress "allow" 72-hour retroactive warrants???
Just curious.
BILL
To clarify if necessary...
President Bush bases his position on the contention that his authority to act without a warrant in cases of national security is based upon his inherent powers UNDER THE CONSTITUTION as commander-in-chief during "time of war." In other words, Bush claims that he's not subverting the Constitution but rather working within it.
Where in the Constitution does CONGRESS claim ITS supposed power to pass a simple law (FISA) that allows (via the 72-hour retroactive clause) subversion of the 4th and 14th Amendments?
Bill, Here is the 4th amendment:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The 14th Amendment concerns due process, citizenship, and other non-FISA related items.
FISA does not violate either of these amendments, and the suggestion that it does is something I have never heard before. The 72-hour retroactive provision is a practical necessity given that criminals are notoriously quick and efficient in their movement, and no one thinks the constitution requires that criminals have to be given a long head start. Due process can be retroactive, within reasonable limits (72 hours).
It is also worth noting that the FISA court, between 1980 and 2002, approved 99.8% of the warrant requests that it received. Has anyone asked why the President felt the need to go around this obvious rubber-stamp court?
Due process can be retroactive, within reasonable limits (72 hours).
Can it? Police aren't allowed to inform suspects of their right to remain silent *after* questioning them, are they? And what if the warrant is denied after the fact -- is the search retroactively illegal and unconstitutional?
Has anyone asked why the President felt the need to go around this obvious rubber-stamp court?
Because he didn't believe its approval was necessary. Whether he was wrong about that remains to be seen; Supreme Court rulings on the subject are scarce.
revenant wrote:
"Police aren't allowed to inform suspects of their right to remain silent *after* questioning them, are they?"
No, but at that point the suspect is already in custody. We're talking about investigative searches here. Don't change the subject.
"And what if the warrant is denied after the fact -- is the search retroactively illegal and unconstitutional?"
Yes, so any evidence gained from it cannot be used in court.
revenant then goes on to suggest that the President may not have violated FISA, in spite of the fact that FISA was specifically crafted to prevent exactly what the President did.
Suppose the president said: "Okay, if the congress is oppossed to this I'll just stop and wait until the congress passes appropriate legisation. I thought I was doing the right thing, but unless congress says okay, or the Supreme Court writes an advisory opinion, I'll just ask the NSA to stop." And suppose thereafter there is another attack on US soil. Then what? Is Bush or the next president supposed to say there was nothing more to be done? Is that this the best way for the president to defend the Constitution? Or, put another way, what, other than grief, is Bush getting out of standing his ground on this?
Joan,
The law actually is pretty clear. If the President is bound by FISA (which he's arguing that he isn't, a not very convincing arguement), and the AUMF didn't amend FISA (that it did is a really, really bad argument, IMO. "Implied" ammendments/repeals are frowned upon, and the fact that PATRIOT, passed after AUMF did amend FISA gives a strong indication that Congress didn't consider it repealed, and saw that it needed amending to deal with the new threats), then he broke the law.
The 'complexity' of that issue is largely obfuscation. As is the adminstration line that the opposition is against spying on Al Qaeda. But that's where we are.
Um, how about, if you think it's already legal, it doesn't make any sense to go to Congress to ask permission to do it? Especially since asking permission creates the implication you didn't believe it was already permissible?
As far as warrants, they can only be issued upon probable cause under the Fourth Amendment, while all reasonable searches are permitted. The result is that there are cases of Contitutionally-permissible reasonable search (say, of a prisoner entering custody, because of safety concerns) where it would be unconstitutional to issue a search warrant (because you lack probable cause to believe the prisoner is smuggling anything in). And you can't create a special court able to give warrants in such cases, because Congress cannot overturn the 4th Amendment standard of probable cause with a stature.
It seems at least arguable there are cases, during a delcarted war (which is what the Congressional Act amounts to), where it is reasonable to monitor suspected enemy agents in cases where ordinary probable cause does not exist. In those cases, not only would warrantless searches be Constitutionally permissible, warrantless searches would be the only type of search Constitutionally permissible. In which case the FISA court can't give you a warrant, so you go ahead with the reasonable wiretap anyway without bothering it.
No, but at that point the suspect is already in custody. We're talking about investigative searches here.
Why would it matter that the suspect is in custody during the investigative search in question? Why is after-the-fact compliance with the rules for searches ok before an arrest but wrong afterwards?
"And what if the warrant is denied after the fact -- is the search retroactively illegal and unconstitutional?"
Yes, so any evidence gained from it cannot be used in court.
But what if the executive branch doesn't care about using the information in court -- e.g., if they're gathering information in order to identify overseas military/intelligence targets? It doesn't sound like there is any reason for them to care if the after-the-fact warrant is granted or not. In either case they have the information they wanted. Even if FISA required that the information be destroyed, there's still that three-day window (longer than that, really, since the court itself needs time to process the request) during which the information is available for military use.
revenant then goes on to suggest that the President may not have violated FISA, in spite of the fact that FISA was specifically crafted to prevent exactly what the President did.
No, I did not say that Bush "may not have violated FISA". I said that Bush may not have needed the FISA court's approval. Yes, I know Congress passed a law with that intent. Here's what you're missing: just because Congress passes a law doesn't mean the law is automagically constitutional. If Congress lacks the authority to force Bush to obtain warrants in cases like this -- which, based on past court rulings, it might -- then Bush didn't need the FISA court's approval regardless of what the law said.
revenant continues to obfusticate:
"Why would it matter that the suspect is in custody during the investigative search in question?"
If the suspect is in custody, then the evidence-gathering phase is already advanced (unless you are holding him without any intention of charging him with a crime, another area where Bush skirts the constitution).
"Why is after-the-fact compliance with the rules for searches ok before an arrest but wrong afterwards?"
Because before the fact we're just talking about listening and looking. After the fact we're talking about arresting him. Big difference.
"And what if the warrant is denied after the fact -- is the search retroactively illegal and unconstitutional?"
'Yes, so any evidence gained from it cannot be used in court.'
"But what if the executive branch doesn't care about using the information in court -- e.g., if they're gathering information in order to identify overseas military/intelligence targets? It doesn't sound like there is any reason for them to care if the after-the-fact warrant is granted or not. In either case they have the information they wanted. Even if FISA required that the information be destroyed, there's still that three-day window (longer than that, really, since the court itself needs time to process the request) during which the information is available for military use."
The surveillance is legal without a warrant if and only if no US citizens are being surveilled. If US citizens are being surveilled then a warrant is required. That's the 4th amendment, and the AUMF did not overturn that (see first posting in this thread).
If you are actually arguing that unconstitutional surveillance is OK as long as the info isn't needed in court, well, help yourself. But you've gone over the edge.
As far as warrants, they can only be issued upon probable cause under the Fourth Amendment, while all reasonable searches are permitted. The result is that there are cases of Contitutionally-permissible reasonable search (say, of a prisoner entering custody, because of safety concerns) where it would be unconstitutional to issue a search warrant (because you lack probable cause to believe the prisoner is smuggling anything in). And you can't create a special court able to give warrants in such cases, because Congress cannot overturn the 4th Amendment standard of probable cause with a stature.
I have no idea what you are trying to say. But "probable cause" is to some degree a 'reasonableness' standard, which depends in part on the nature of the harm to be rectified, so in practice the showing of PC to FISC would have to be less than to get a standard "knock and enter" warrant, as evidenced by the 99%+ approval rate for FISA warrants.
Further the 4th Ammendment creates a floor for rights - Congress can grant more rights, which FISA does, as there are certain instances when an intercept might be "reasonable", but is still illegal sans warrant.
revenant continues to obfusticate
It takes a lot of nerve for you to accuse me of that. :)
If the suspect is in custody, then the evidence-gathering phase is already advanced
Ah, yes. I'd forgotten about the part of the Constitution that says it is ok to temporarily forgo the restrictions on searches and questioning so long as the evidence-gathering phase isn't sufficiently advanced.
... wait a second. Where was that part, again?
Because before the fact we're just talking about listening and looking. After the fact we're talking about arresting him. Big difference.
Maybe there is a big difference between listening and looking before an arrest versus after it, but there's nothing in the Constitution about that distinction. So, again, where are you getting this stuff from? Doesn't the Constitutional requirement that warrants list what is to be searched for make it pretty damned obvious that the warrant is supposed to come BEFORE the search?
The surveillance is legal without a warrant if and only if no US citizens are being surveilled. If US citizens are being surveilled then a warrant is required.
You didn't answer my question. Fine, let's say that it isn't legal to listen to US citizens without a warrant. But you yourself are saying it is legal and Constitutional to apply for a warrant after the fact, and that the only penalty for having your warrant request turned down is that you can't use the evidence in court. But suppose I have no interest in prosecuting you? What stops me from wiretapping you to my heart's content so long as I apply for a new warrant every three days?
Example: I listen in on you from 3/10/06-3/13/06. On 3/13/06 I apply for a warrant and keep listening. On 3/16/06 I apply for a new warrant covering 3/13-3/16. And so on, and so on. In effect I get to listen to you as much as I want, forever, and pay no penalty for it at all, so long as I break up my wiretapping into three-day chunks.
If that's the way the system works then it would appear that all Bush did, by skipping the FISA courts, was save a lot of trees from being cut down to print warrant request forms whose status doesn't actually matter.
That's the 4th amendment, and the AUMF did not overturn that (see first posting in this thread).
The fourth amendment does not say that you need a warrant to listen to US citizens' conversations, and the courts have not established that warrants are needed for any and all wiretaps that involve US citizens. Also, just because Congress didn't mean for AUMF to authorize warrantless wiretapping doesn't mean that it doesn't authorize it. Congress routinely passes laws that have effects Congress didn't mean for them to have.
But wait, there's more. The shift from PC to "reasonable suspicion" was proposed and rejected in Mid-2002. And a report from within the DoJ said it wasn't needed.
These laws were all written before cell phones and before the internet
As you say, you're not a lawyer. It's simply not true that these laws have sat, gathering dust and ossifying, since the invention of DARPA. It's also not true that a 72-hour RETROACTIVE warrant requirement is oh-so-onerous.
As someone else pointed out, if President Hillary Clinton proposed this behavior was legal, the same people now defending the President would be apoplectic.
These laws were all written before cell phones and before the internet
Change the law then. Somehow, I don't think the "it's a bad law" defense will work if you get busted with a joint.
Anonymous... you just don't get it, do you? Perhaps it's my fault for trying to phrase my brilliant legal commentary (*GRIN*) in the form of a question and by relating it to the critics reasoning.
Let me try again with a simple statement:
If it's a CONSTITUTIONAL mandate that prior to a legal search a WARRANT must be ISSUED by a JUDGE, then... logically... a warrant must be issued by a judge! PRIOR to the search!
Are you with me so far?
Here's another statement:
CONGRESS has no more authority to violate the Constitution or change its terms (other than through the amendment process of course) than the PRESIDENT does.
Are you still with me?
Rev understood what I was getting at right away. (*WINK*)
A government search itself is either constitutional or unconstitutional. If you believe that a warrantless search (or surveillance as the case may be) "authorized" by the president is unconstitutional without a warrant then you must - under the logic of constitutional supremacy - also recognize that CONGRESS has ABSOLUTELY NO AUTHORITY to circumvent the clear meaning and logic of the 4th Amendment via simple legislation of a 72-hour "retroactive" warrant.
You (meaning, "you," anonymous) may claim that "the 72-hour retroactive warrant is a practical necessity," but the 4th Amendment doesn't have any tag line about "practical necessities may render parts of this Amendment null and void." (*SMILE*)
What's good for the goose is good for the gander and what limits the executive branch limits the legislative branch. That was my point.
Some people are claiming that President Bush is simply making up powers for himself as he sees fit independent of his constitutional powers. Well... maybe he is. But then again, so is Congress if it claims that the 72-hour retroactive warrant provision in the FISA LAW (I capitalize "law" to remind you that no statute, no law, has the power to override the Constitution) can serve to finesse the 4th Amendment which calls for warrants to be issued PRIOR to a search.
It's actually all pretty simple, Anonymous. (*SMILE*) It really does amaze me how you and certain others supporting your position can be so blind (or perhaps just accepting) concerning Congress or the courts tinkering with the Constitution (sans amendment) but jump all over President Bush when he lays out a legal theory of his authority that as Rev and other point out has actually be upheld to an extent by prior court rulings.
revenant still obfusticates. Here is the state of affairs re FISA as of today:
1. The administration has acknowledged that the NSA program violated the FISA act. However, Attorney General Alberto Gonzales argues that the AUMF, passed shortly after 9/11, superseded FISA.
2. Yesterday, General Michael Hayden said that the reason they had to bypass FISA was because it required a showing of "probable cause" that the target of a wiretap request was a foreign power (i.e., either a terrorist organization or a foreign state). That standard was apparently too difficult to meet in many cases.
3. As Glenn Greenwald reports today, in 2002 congressman Mike DeWine introduced an amendment to FISA that would have retained probable cause as the standard for U.S. persons (i.e., citizens or foreigners with permanent residency) but lowered it to "reasonable suspicion" for non-U.S. persons.
4. Congress refused to pass DeWine's amendment. This makes it plain that Congress did not intend for AUMF to loosen the restrictions of FISA.
(This is all from Kevin Drum. If you dislike liberal bloggers, please at least address the FACTS listed here, and not just whine about Kevin being liberal.)
And of course there remains that trifling detail of the 4th amendment prohibiting spying on US citizens. It has no clause that says "unless we're at war."
Rainborough writes...
[The 4th Amendment] requires that all searches and seizures be reasonable, and that warrants be issued only for probable cause. But there may be exigent circumstances where, despite the absence of a warrant, a search is reasonable.
===============================
Oh, please... give it a rest. The plain text and reasonable reading of the Constitution can only be tortured so far.
Where in the 4th Amendment does it speak of "exigent circumstances?"
Jeez... even Anonymous seemingly understands that the 4th Amendment "has no clause that says 'unless we're at war.'"
Don't you see where the "logic" of your defense of the LEGISLATURE acting outside constitutional paramaters leads? Obviously you don't. Basically, you're attacking President Bush for using the same logic in defense of his presidential perogatives that you use to excuse Congress' behavior with the 72-hour retroactive warrant provision of FISA.
You and Anonymous are so invested in the 1978 FISA law that you can't see the forest for the trees. The President doesn't have the constitutional authority to circumvent the Constitution and NEITHER DOES CONGRESS. Period.
Anyway... I'd still like to get Cathy's take on all this since it's her thread and her blog.
P.S. - Notice the 4th Amendment reads in part "and that warrants be issued only for probable cause."
Notice it DOESN'T say "and that warrants be issued only for probable cause unless an initial warrantless search finds such probable cause, in which case a warrant may be issued retroactively."
JEEZ!!! (Rev... is it me???)
Congress refused to pass DeWine's amendment. This makes it plain that Congress did not intend for AUMF to loosen the restrictions of FISA.
Can Congress's intentions really be inferred from that fact that DeWine's amendment failed? Another, equally reasonable explanation is that the amendment was allowed to die because it was seen as unnecessary: FISA covers criminal proceedings, but surveillance while at war is a different thing altogether.
revenant still obfusticates
Whatever. You still haven't answered any of my questions; let me know when you're ready to.
May I point out that there is no such word as "obfusticate." ;) It's "obfuscate."
Don't have the time to say much on substance right now, but a quick note on one point:
FISA does address the issue of the President's wartime powers.
See more here.
FISA does address the issue of the President's wartime powers.
That re-raises the question -- if, as some people claim, the 4th amendment prohibits warrantless wiretapping and "spying on American citizens", then how can Congress grant the President the power to do it for 15 days following a declaration of war?
Some people have justified the 72-hour retroactive warrant with the (thus far unsupported) claim that the Constitution allows retroactive compliance with the Bill of Rights. Even if we accept that argument, though, there's no warrant requirement at all for the post-war 15-day window. How does *that* pass Constitutional muster?
It seems pretty clear that Congress didn't think there was a fourth amendment problem here -- that, in their view, the President DID have the authority to perform such taps, and that FISA was aimed at restricting that power. But that means that the legality of the wiretaps comes down to the question of whether Congress has the constitutional authority to limit the President's CiC powers in this manner. The courts haven't decided that question, so far as I'm aware.
Rev writes...
That re-raises the question -- if, as some people claim, the 4th amendment prohibits warrantless wiretapping and "spying on American citizens", then how can Congress grant the President the power to do it for 15 days following a declaration of war?
================================
EXCELLENT question, Rev! (*GRIN*) How indeed...??? (*SMILE*)
================================
Rev continues...
It seems pretty clear that Congress didn't think there was a fourth amendment problem here -- that, in their view, the President DID have the authority to perform such taps, and that FISA was aimed at restricting that power. But that means that the legality of the wiretaps comes down to the question of whether Congress has the constitutional authority to limit the President's CiC powers in this manner.
================================
Yep. Now we're on the same page, Rev.
I've given my views. (Again... and again... and AGAIN...) (*GRIN*) I'd be very interested in hearing your views as well as Cathy's.
BILL
And the most basic question is ignored:
If a Congressional law violates the executive's Constitutionally mandated power, then the law is moot.
The President can no more restrict Congressional power than Congress can restrict the President's.
If Bush goes to FISA, he gives the court legitimacy that he does not feel that they warrant.
And to head this off at the pass: he didn't consult Congress because the intel committee has enough of a problem keeping secrets. Presenting this to the entire Congress would have been an utter nightmare.
-=Mike
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