Bad drafting. The amendments that actually were made to FISA make it look like they intended to expempt spying on terroist organizations (as defined) and forgot to change the exemption term to include the newly included paragraphs. Otherwise, there would have been no point to the edits they actually made.

Dan,

It's important to note that the Administration actually *opposed* the "DeWine" amendment that would have loosend FISA in 2002 or so, as noted in the comments to Kevin's post.

Their argument was that they had no problem with the existing FISA procedure, and that DeWine's proposal might violate the 4th Amendment!!! I'd love to see those statements thrown back at them now.

My guess is that what they were after was:

1. They wanted the expanded wiretap power but did not want to pay the political costs of obtaining them through a public procedure in Congress. I suspect this is a big part of the explanation: have the cake and spy on it too.

2. They may have expected such legislation would fail, and thus didn't see it as a viable strategy. Or would have failed without political capital being spent (see #1). Of course, if this is true they can't reasonably argue that Congress meant to give them this authority in the first place.

3. They may simply have wanted to set a precendent and/or acted out of sheer principle and gall. Cheney seems as concerned with restoring the imperial presidency as with any particular short-term substantive outcomes.

...and if I were a Democrat political advisor, I'd tell them to fully support the Amendment- as long at it included a Congressional censure of the president...

What the administration has been sufficiently disturbing to give rise to quite considerable alarm. Torturing in defiance of law and winkwink pretending otherwise, eavesdropping in contravention of law, asserting that the executive under Article II can disregard legal restraints.

There doesn't seem to me any doubt that this is a gang that seems rather careless of the rule of law and rather badly misconceives the limits of presidential prerogative.

Meanwhile, over in Congress, according the seasoned and sober observers like Norm Ornstein and others, rules and procedures are being ignored to an unprecedented extent, much more money than in the past is being sloshed around, lobbies have been successfully pressured into aligning themselves with a political party, and vital legislative and policy decisions have regularly been made in secrecy by a handful of leaders and occasional commmittee chairmen.

Now all of this seems to be fairly evident. Am I wrong about that?

And more important, if I'm about right, just how alarmed should I be? Are the distortions and violations of what one might term in broad sense due process permanent? Will they recur after the 2008 or will they somehow recede? And just how far from the way things are sposed to be? How do they compare to earlier times when there was occasion for alarm--say, the decades where the slave power distorted our system so grotesquely? or the Gilded Era? The Red Scare? How well, in the entire postwar era, has our democracy measured up against that of Britain or Germany or France or Italy? Does it measure up now quite significantly lower than before January 20 or September 10, 2001?

One more thing: should it comfort me or alarm me further that this is also a gang that can't shoot straight, that is rather remarkably incompetent, in reacting to floods, in overloading the FBI with leads 99% of which are useless, in putting millions of dollars of Iraq reconstruction money into the pockets of thieves, in insisting on having its soldiers govern a deeply divided society without a semblance of appropriate preparation--is this catalog of ineptitude in a way a source of comfort, suggesting that the essentials of law and democracy can't possibly be endangered by a crew that obviously can't manage its way out of paperbag? I mean, would endangering our democracy require a degree of skill these guys obviously don't begin to possess? (Yet, they do have very considerable skills, in the circumstances their poll numbers are well sustained, they have the most dynamic TV news network in their pocket, they've won two years' elections and reversed the result of one they lost.)

Do these gouges and nibbles on the carcass of the body politic add up to ordinary politics or to deeply disturbing portents of continued, perhaps worsening, rending of the fabric of democracy?

(It might be asked this way: were the kids who turned their backs on the Attorney General to hold up the Ben Franklin sign doing something that will look to be appropriate to our circumstances when their history is written fifty or a hundred years hence? Of course, then historians may well disagree. But what's the right interpretation?)

Why didn't Bush include a FISA amendment in the Patriot Act? Because he honestly believes he is above the law. There is no logic here. It's all about belief. He sees himself as a messianic figure to this country. No logic, just belief.

There is no logic here. It's all about belief. He sees himself as a messianic figure to this country. No logic, just belief.

Hmm, that asks rather a lot of General Hayden and the career lawyers at the NSA who signed off on this. Other possible explanations:

1) Intercepting international communications of anyone talking to any defined terrorist organization is a broader power than intercepting international communications of anyone talking to a specific terrorist organization against which Congress has passed an authorization of force.

2) Sincere belief that the passing of a law authorizing use of force against Al Qaeda authorized spying operations against people communicating internationally with known Al Qaeda members, but that changing the law in order to allow spying on defined terrorist organizations without such a specific authorization of force could be Constitutionally dicey.

3) Given 1 and 2, changing it would be both unwise and unnecessary. Add to that that terrorists internationally often have little idea of how we spy on them, and often behave in ways that we can intercept their signals, until they read about how we do it in the media. For example, the NSA was intercepting and listening to Osama's mobile phone conversations in the late 90s; the NSA would frequently brag about this when Congressmen came to visit, offering it as an example of what the Agency could do. One Congressman let it slip to a member of the media, which put it in an article. Bin Laden switched to a different type of mobile phone which was better encrypted and which the Agency could not decrypt. This switch occurred in late '99/ early 2000.

IMNO the simplest explanation that fits the facts (where facts includes previous statements, actions, and outcomes by the Administration and its advisors {e.g. Rove}) is that the intercepts were used to spy on Bush's political opponents and other purely domestic "enemies". Pure and simple; explains the actions and the cover-up.

Cranky

I'd bet Cranky is mistaken. But how can we possibly know, mere citizens who must trust an executive with immense inherent powers of its own, checked by a court whose newest member helped put in place a theoretical justification of sweeping executive power, and by a Congress dominated by leaders who also act in secret and seem quite prepared to toady the president? How can we even know what's becoming of the way our fates are decided?
Is Jacob Weisberg in today's Financial Times unduly alarmist to envisage the evaporation of civil liberties? I hope so, I fear not.

How much can we know about how NSA's surveillance program works? Well, how much does President Bush know?

At least by this time, he probably knows the basics. The record suggests, though, that he may be pretty foggy on the details. This suggests a serious problem with the "inherent authority" argument -- as a practical matter, a President can delegate the design, implementation and public explanation (if any) of this kind of surveillance program to any of a fairly lengthy list of officials in the executive branch. So the administration's argument boils down to the President's inherent authority to approve an idea that sounds good to him, if it is designed by people he thinks are pretty smart and seem to know what they are doing.

We seem to be some distance from original intent here. During the 1787 constitutional convention, discussions of the executive granted that branch much more power than many expected based in large measure on the fact that everyone knew George Washington would be the first President. I'm not sure the result would have been the same had delegates assumed the first President would be George W. Bush.

In any event, perhaps we ought to consider the administration's arguments on this subject less on their face value than in the context of the path of least resistance. Bush, badly shaken by 9/11, felt impelled to do something in late 2001 and 2002. This was something. It was a program designed by people who seemed to know what they were talking about (at the time, maybe they did and maybe they didn't. It's unlikely that the surveillance program works in quite the same way now as it did three years ago). Inherent authority and the authorization of force resolution as justifications for the surveillance program are likely, from Bush's point of view, ex post facto justifications that explain why he did what he did in the way that involved the least amount of work for him personally. Congressional approval of an amendment to FISA and detailed consultation about the surveillance program with select members would have involved some risk and considerable inconvenience to the President -- so they were not attempted. In George Bush's world, the things he does not want to do he has a right not to do.

Now that the deed is done, and knowing as I do nothing about how effective a tool against terrorists the NSA surveillance program has actually been, I think it might be a good idea to revisit Sen. DeWine's amendment.

What would you prefer, to do whatever you like until you get you hand slapped or to ask permission and confront being faced with a no? They would have to provide some justification on why FISA isn't enough and that is something they still haven't been able to do.

Lord, I saw a justifiction from the Hayden interview.

He claimed that the 3-day rule wasn't for NSA. They had to present enough evidence to the Attorney General in 3 days for *him* to present it to FISA.

So it all had to go through him personally, and for each one they had to present enough evidence to pass a court.

But the other way, they could do what they thought best, and if they found they'd made a mistake they could erase the data and log the event and be done with it. Much quicker, much less red tape.

Cranky: That sure explains why nobody's come forward with a single piece of evidence for that (despite the immense political and practical rewards for doing so, which should be obvious on reflection), and why the DoJ audit found nothing objectionable, yes.

(Toofret: Don't forget as well, that the "Congressional leaders who meet in secret" and got briefed on this include Democrats, who have no reason to "toady the President", and every reason to trumpet such a revelation unendingly to the skies. And have not done so.)

My crazy suggestion for why the Administration didn't put forward such an amendment in 2002 is that they may have, as all their legal analysis so far presented has suggested, really believed that no such change was needed.

(And indeed, they might still believe it's not needed as a matter of law, but having it clearly stated in the USC makes the question effectively inarguable, doesn't it?)

(I of course meant 2001, not 2002, by the way.)

Why didn't President Bush include a specific amendment to the FISA statute in the Patriot Act? Possibly because he was concerned, based on the advice he received from those who understand how the technology works, that the resulting legislative hearings might reveal too much information as to the workings of the program and thereby undermine its effectiveness.

Dan,

My father was the adminstrative assistant to a Congressman on the House Intelligence Committee at the time FISA was enacted in 1978. I was and am familiar with the public and Congressional debate on FISA at that time. I was engaged in the private practice of law at that time and so able to follow the details.

My brief conversations with my father and his boss about FISA taught me that Congress was determined to head off future domestic abuses of what was then perceived as the NSA's rapidly growing eavesdropping ability. They didn't care at all about "foreign communications" - those into or out of the U.S. The Executive Branch was adamant about Congress not touching the NSA's surveillance of foreign communications, and Congress didn't care at all about that so the Executive Branch got its way there.

Congress specifically intended then, and this is in FISA's legislative history cited in the recent Attorney General report as well as newpaper and magazine articles in 1978, that FISA not interfere with the NSA's existing surveillance of electronic communications which crossed a national border - ours as well as anyone else's. There is a specific FISA clause which excludes such from the definition of "electronic surveillance".

I and a former NSA employee went into some detail on this in the technical legal discussions at the Volkolh Conspiracy.

If a phone call or email crosses a border, we can listen to it period, regardless of who the communicants are, and FISA does not apply to it at all.

If the communication is from one point in the U.S. to another point in the U.S. (domestic communication), whether FISA applies depends on a whole bunch of possible factor such that discussions of FISA's applicability to domestic communications are a waste of time absent detailed fact situations.

And, having been aware of FISA from its inception, I assure you that technological advances alone mean it cannot possibly work the way it was intended in 1978. FISA is dead. A brand new statute is needed.

Absent such a statute, the Executive Branch can and is using the President's inherent constitutional authority, and taking a real expansive view of that which will be effectively unchallenged until the Democrats learn how to win national elections.

Given how contrary the Democrats' positions on this issue are to public opinion, national security, and plain common sense, it will be a long time before that happens.

And if Dems ever do win a national election, they might just find that the expansive view of enemy surveillance is pretty darn expedient, after all.

If a phone call or email crosses a border, we can listen to it period, regardless of who the communicants are, and FISA does not apply to it at all.

There are some interpretations whereby if a call crosses a border but is partially domestic, the NSA cannot listen to the domestic half of the conversation without a warrant. At minimum, the Agency generally tries to avoid listening in, just as it avoids listening to US person communications abroad. (Technically, due to the nature of communications, the agency can't always pick out just one person's communications. So they listen in and then discard irrelevant communications and all US person communications at a foreign source within 72 hours.)

FISA warrants are generally for specific people. It's like getting a warrant in a normal situation. You have a reason to listen in to a specific person's communications. They aren't for things like "anybody who gets a phone call from a known Al Qaeda member."

I just noticed that I typed "justifiction" instead of "justification". It was originally a typo, but I'll stand by it.

Given that a few lawsuits have been filed on this subject so far, wouldn't that effectively be a concession that the administration's arguments about the programs legality were untrue?

Mr. Thacker,

Anyone can write interpretations contending anything. Here's one - you and I are both Queens of the May!

Do you really mean to contend that making a contention automatically makes it true? I contend this - You WILL give me all your money!

I interpret FISA as meaning, You WILL give me all your money!

I just said, I was there at the time. I talked to some of the people who WROTE FISA. I know what their intentions were. Statements about Congressional intent appear in the Congressional Record.

Nothing anyone says 30 years later can change that. Congress's express intent in enacting FISA was to maintain the status quo concerning the NSA's foreign surveillance - if an electronic communication crosses the U.S. border, surveillance of it is NOT "electronic surveillance" under FISA and not subject to FISA period.

Interpreting legislation is my day job. I tangled with other lawyers on this at the Volkolh Conspiracy and someone who had worked for the National Security Agency, and resigned because he didn't like their policies concerning domestic surveillance, came in and said I was absolutely right about foreign surveillance.

So if any domestic communications happen to get routed out of the country and back in, then FISA doesn't apply and they can be freely spied on?

I say that it doesn't matter what the law *was*, unless we're discussing things like impeachment. The question now is what the law ought to be.

And I say, whatever else the law includes, it should say no spying on US legislators or their staffs. No spying on offices of bona fide political parties. No spying on federal judges or their staffs. No matter where the communication is routed.

Any of those should be strictly illegal with harsh punishments for the agents who carry them out and stricter punishments for the executives who order them, with immunity and rewards for whistle-blowers.

J. Thomas,

If one end of the communication is outside the U.S., the NSA can listen to it. If both ends are in the U.S., it depends.

Dan writes: 3) Kevin Drum has been doing some excellent blogging on this topic. I can't really disagree with his characterization of the state of play right now.

Well, if Drezner "can't really disagree with his characterization of the state of play right now", then Drezner hasn't paid enough attention to what the facts are. Because Kevin is completely wrong about every single one of the four points he makes.

"1. The administration has acknowledged that the NSA program violated the FISA act. However, Attorney General Alberto Gonzales argues that the Authorization for Use of Military Force, passed shortly after 9/11, superseded FISA."

This is false.

The administration has NOT "acknowledged that the NSA program violated the FISA act." And the Administration does not argue that the AUMF "superseded" FISA (except in one short footnote to the White Paper).

In fact, the Administration argues that the AUMF satisfied one of the exceptions to the warrant requirement set forth in the AUMF. Accordingly, the Administration argues that FISA was satisfied.

"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."

No, actually he didn't say that at all. In fact, I challenge Kevin to show where Hayden said anything at all supporting Kevin's statement that the probable cause standard "was apparently too difficult to meet in many cases". A direct quotation from Hayden would be appreciated. (The transcript is at: http://www.fas.org/irp/news/2006/01/hayden012306.pdf)

"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."

But the issue with the NSA program is NOT U.S. Persons vs. non-U.S. person. So this amendment has nothing to do with the legality of the NSA program.

"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 makes no sense whatsoever. As stated above, the argument made by the Administration is that the AUMF satisfied the FISA exception for the purposes of the NSA program. Since DeWine's amendment has nothing to do with the NSA program, it is irrelevant whether Congress passed it or not. It makes no sense to say, as Kevin does, that because Congress refused to amend FISA in one way, then the AUMF can't have satisfied FISA in a completely different way. The two things are not logically connected at all.

I'll say this again.

Unless we're arguing about whether to censure or impeach Bush, it doesn't matter what the 1978 law was. It also does not matter what the Patriot act was etc. Unless the argument is whether to impeach Bush for crimes under these laws, all that is irrelevant.

Apart from impeachment, the important question is what the law ought to be now.

Bush's arguments boil down to the claim that as a wartime president he can do anything he wants to with no oversight by congress or the courts.

Is that acceptable? With an undeclared War on Terror, with an enemy that is unable to surrender?

Entirely apart from the question whether Bush has actually engaged in surveillance against antiwar activists or legislative Democrats, he says he has the right to do so whenever he thinks it's necessary, and nobody else needs to be even notified. Do you agree? If not, where should the limits be on domestic surveillance?

If you believe that Bush has not made these claims, still the claims are being made for him. Do you disagree, and if so where should the limits on presidential power be?

(Toofret: Don't forget as well, that the "Congressional leaders who meet in secret" and got briefed on this include Democrats, who have no reason to "toady the President", and every reason to trumpet such a revelation unendingly to the skies. And have not done so.)

I was getting off topic, thinking of the way Congress too often now passes major legislation--a handful of leaders, more or less in the adminstration's pocket, huddling together and putting in whatever provisions they think they can get by with, and then expecting their minions to vote aye on a bill they've not read.

But as to "informing Congress." A) I think that Harmon's probably right that by law the entire membership should be informed. B) When Cheney tells the chairman, of course he just acquiesces. Hoeskstra is no more independent than a nursing child. Roberts, for God's sake, voted against the McCain amendment. As for the Democrats, the hapless Rockefeller did at one point register a dissent in a handwritten note to Cheney. But if they ever were so foolish as to go public, they'd be in violation of laws and regulations, and they'd be in political deep shit.
If you favor trusting the executive and tilting the traditional balance of power heavily in its favor, so be it. But at least see clearly that it's a new constitution you're endorsing.
(No doubt there are pre-9/11 precedents to be cited. But the number of signing statements rewriting legislation has gone up an order or two of magnitude. It's hard to recall so tendentious a case for the lawfulness of an action as that for the NSA eavesdropping. The embrace of torture by the Office of Legal Counsel, and its underlying theory is without precedent, and indefensible by traditional standards of legal interpretation.
Perhaps there's no surprise in this. Cheney was as "conservative" as any member of the House in his years there. Bush prides himself on Doing Something isn't long on scruples. And then came the heaviest miasma of fear to descend on us in modern times, triggering and apparently legitimating the worst instincts of those charged to protect the Constitution.)

Tom Holsinger: "If one end of the communication is outside the U.S., the NSA can listen to it. If both ends are in the U.S., it depends."

Depends on what? We may have a loophole here big enough to shove J. Edgar Hoover's tutu through.

And, of course, we have the Gazillion Dollar Question: if the Administration's wiretapping activities are really as benign as it claims, why did several members of the intelligence establishment get enough heeby-jeebies about them to spill the beans to the NY Times? Are we supposed to believe that the DIA is riddled with Islamic Fascist sympathizers?

As for "consulting Congress": really. The eight members notified were forbidden to reveal the fact to any other members, even on their committees -- which of course by itself would prevent Congress from taking any kind of action in the matter -- and also forbidden to consult any legal authority as to the possible legality of such a program, even stated as a hypothetical case. (McCain announced that, if Sen. Rockefeller really thought the program was illegal, it was his moral duty to "violate the law" by arranging for Congress to be able to debate it. Of course this means that, without Rockefeller violating those secrecy laws, Congress could never have been "consulted" about the program, contrary to the ridiculous sophistries that the Bush Administration is trying to peddle now that the beans have been spilled.)

Facts really must be faced. The crew in charge at the White House right now wants dictatorial power, and is willing to use any technique that shows the slightest promise of being able to deliver it to them.

'The constitution was passed in 1789. This is 2006. Clearly it doesn't apply to the world of today.' -GWB

But as to "informing Congress." A) I think that Harmon's probably right that by law the entire membership should be informed.

Cheaper, simpler, and easier to simply buy a double-truck insert in the NYT. Four-color slick, of course.

Biggest advantage, though, is that the information wouldn't get to our enemies as quickly.

Regards,
Ric

Ric, let's try to think about this carefully.

The official enemy here is a few thousand people who are desperately hiding hoping we won't find them. They depend heavily on secrecy -- once we find one of them he's toast.

We are the only superpower, and somehow we have the illusion that if this tiny hidden enemy discovers our secrets they will win. It's crazy.

Here's the real bottom line. When our government does things in secret they tend to get real, real, incompetent. And when we find out we get upset. The real enemy here isn't Al Qaeda. The real enemy is the US public, who might demand that these clowns get replaced by somebody competent.

You have swallowed the silly claims. You have been snookered. You're ready to believe that the US Congress, the guys who need to know what they're spending our taxes for, are the enemy who mustn't find out what they're spending our taxes for.

It isn't too late to wake up. Think it over. These guys are lying to you. Could there be more than one enemy here?

Wow, Tom Holsinger, you're really smart. Are you , like, the same Tom Holsinger who likes to play computer military strategy games? Is that where you got keen insights into the US invasion of Iraq? Guess Avalon Hill didn't put out games like "Iraqi Peacekeeping 2006" or "Incipient Civil War: Install 'Democracy,' Declare Victory and Run."

Loved your pre-invasion article, by the way:

http://www.strategypage.com/strategypolitics/articles/20021219.asp

Those predicitions were spot on. Brilliant. I especially like this one:

"The strategic picture changed dramatically with Saudi permission to use its airspace. Recent news stories about Saudi officials' involvement with Al Qaeda terrorists, especially the 9/11 hijackers, should be reconsidered as successful pressure by the U.S. government to achieve its strategic objectives. Qualms about the ability of the Bush Administration in such matters should vanish too, but won't.

The Administration's decision concerning UN weapons inspections should be viewed in light of this demonstrated competence"

and this one:

"An ideal American victory would consist of Saddam's assassination before the invasion followed by a relatively bloodless occupation and creation of a US military government to reconstruct Iraq as we did 57 years ago in Germany and Japan. Saudi access makes this feasible - Saddam's henchmen have no chance whatever now and know it."

and this one:

"Assuming Saddam somehow survives to opening day, he is unlikely to outlive it. A minimum period for the duration of Iraqi resistance is two days - that long due to delays in communicating surrenders. . . . "

and this one

"At this point it appears the only significant resistance American forces might encounter would come from Al Qaeda terrorists in Iraq. Saddam's remaining loyalists weren't selected for their fearlessness or military ability (such traits threaten him). Al Qaeda has demonstrated both traits, and cares less than Saddam about Iraqi civilian casualties."

And this one:

"The Administration has shown great strategic ability so far. . . ."

And, Oh, I'll just leave it there.

Now, I know you keep saying "you were there," at the inception of FISA, but are you sure you haven't been playing a FISA Legal Strategy computer role-playing simulation or something? I hope not, because your military "strategic" mind really blows.

-jobo

Hey, Tom Holsinger, if all of this was settled in 1978 and if everything is so clear, then why is it that senior NSA personnel refuse to participate in the monitoring? And leak the facts to the press? And why is that lots of members of Congress have problems? Don't they have access to the same "facts" you've got? Guess you'd better get in touch with those dumb-ass congressmen and NSA guys. And don't forget to touch base with those Justice Department lawyers.

Damn, why aren't you in charge?

Could it be that you're really just a name-dropper, a bull-shitter and a partisan hack? And, based on the guy who smoked you out, maybe a crappy military strategist as well?

Nixon, don't be too hard on the guy. He probably just got mixed up about where he was posting.

See, if you post on a blog where everybody agrees with you already, and you say "I'm a big expert, I know secrets, and here are the conclusions" and you then tell them what everybody already agrees with, they'll accept you as the big expert. But if you do that someplace they don't already agree with you, then they won't accept that some random blogger is the big expert who knows secrets that he isn't quite ready to tell.

So for example a couple weeks ago I noticed a commenter using the name "Michael Ledeen" and claiming he knew secrets that his contacts in iran had told him. I started to respond. "Whoever you are, *why* would you use the name Michael Ledeen? That name is so utterly discredited by now, it will make people disbelieve whatever you say. Why not find somebody else you admire and use their name?" But then I reconsidered. It might actually be Michael Ledeen, and why should I insult him to his face in his time of troubles?

Anyway, at this point there's only one context where it matters what some members of Congress intended with FISA. That's if we're going to impeach Bush over it. If we aren't going to go after him for breaking the law, then the important thing is to figure out what the law ought to be and pass a law that does what we need now.

It's ridiculous to allow surveillance on US citizens without oversight by some other branch of government. If they do surveillance on Congress and don't tell anybody, who's to say whether it's OK? The President? And if you work at NSA and you disagree that it's OK, you're committing treason if you tell Congress about it?

No, we have to get it straight who it's OK to spy on and who has to be notified. Deciding what the laws used to be is just water over the bridge at this point -- unless we're going to find out who's responsible and hold them responsible for it.

So Tom Holsinger's secret knowledge about FISA is irrelevant.