About that May FISC Ruling

by emptywheel

In light of the weekend's news that there were actually two FISC rulings against the Bush Administration's warrantless wiretap program, I'd like to return to this James Risen article from May 2.

Senior Bush administration officials told Congress on Tuesday that they could not pledge that the administration would continue to seek warrants from a secret court for a domestic wiretapping program, as it agreed to do in January. Rather, they argued that the president had the constitutional authority to decide for himself whether to conduct surveillance without warrants.

As a result of the January agreement, the administration said that the National Security Agency’s domestic spying program has been brought under the legal structure laid out in the Foreign Intelligence Surveillance Act, which requires court-approved warrants for the wiretapping of American citizens and others inside the United States.

But on Tuesday, the senior officials, including Michael McConnell, the new director of national intelligence, said they believed that the president still had the authority under Article II of the Constitution to once again order the N.S.A. to conduct surveillance inside the country without warrants.

[snip]

Mr. McConnell emphasized that all domestic electronic surveillance was now being conducted with court-approved warrants, and said that there were no plans “that we are formulating or thinking about currently” to resume domestic wiretapping without warrants.

“But I’d just highlight,” he said, “Article II is Article II, so in a different circumstance, I can’t speak for the president what he might decide.”

On Sunday, we learned that the FISC had twice refused the Administration a subpoena, once in March and once in May.

But in a secret ruling in March, a judge on a special court empowered to review the government's electronic snooping challenged for the first time the government's ability to collect data from such wires even when they came from foreign terrorist targets. In May, a judge on the same court went further, telling the administration flatly that the law's wording required the government to get a warrant whenever a fixed wire is involved.

Which mean this attempt to reclaim Article II authority as justification for warrantless wiretapping necessarily came after the first ruling against the program (it probably came before the second, since the hearing came only two days into May). McConnell claimed, at the time, that the Administration was still doing working through the court. But were they preparing to evade the court, knowing that it had found part of the program illegal?

Comments

[bmaz]

No. They have been evading the court and Constitution on a large scale since 9/11. They were preparing their next act in the highly choreographed Kabuki dance/shell game meant to distract and mollify Congress and the public.

[cboldt]

I think the WaPo's reporting is misleading with its "in May, the order went even farther." I think both orders had similar effect of impacting (reducing, not eliminating) acquisition of foreign-to-foreign communications, just that in May, the judge may have expressly stated that effect.

I do think that President Bush clearly had to be prepared to resume activity as it was before January 2007, i.e., proceed with the surveillance with DoJ orders -- absent the force of court orders. What isn't known is how many of the telcos would (or maybe DID) balk at reverting to the prior "no court order" regime. He's on the record as it being necessary to keep security, and had he stopped, then a terrorist attack, he'd have been blamed for not continuing to do what he'd asserted was in his constitutional power to do.

[cboldt]

As for "multiple rulings," given the description of multiple warrants (some reports say hundreds), there is plenty of opportunity for rulings on the warrant applications.

IOW, I think it's wrong to think of the formal dialog between NSA and the FISC as "one order - then it expires, then another order, etc." Rather, there are multiple applications for warrants with varying scope, targeting, "audience" (one order to AT&T, a different order to Qwest, etc.). There is lots of opaque variety in the mix, even though the general principles are fairly simple to grasp.

[cboldt]

-- But were they preparing to evade the court, knowing that it had found part of the program illegal? --

In case my longer-winder response above seems evasive, it wasn't meant to be. I think the answer to this question is "Yes."

[bmaz]

Yeah, I agree with cboldt on the rulings. They are pretty much up or down matters I would think. And, for the reasons we discussed a few days ago, the Administration would not want any more than that because it could potentially create a reportable decision for AG and leave a trail for later. My guess is, to paraphrase, the second ruling was "No. We told you this shit wasn't going to fly the last time; what part of illegal and/or unconstitutional do you not understand?"

[bmaz]

In light of cboldt's clarification, I should make clear my discussion assumed the two rulings were on similar writ applications; which may or may not be the case, but is the inference that has been shopped by the Administration.

[emptywheel]

One interesting question (and I think I know how you two will answer): why go via Congress as opposed to invoking Article II? Is there a telecomm exec somewhere who has done independent analysis on the Article II claim, having rejected it? Because that analysis would be damned interesting for us to see.

[cboldt]

-- In May, a judge on the same court went further, telling the administration flatly that the law's wording required the government to get a warrant whenever a fixed wire is involved. --

This does read though, as though the government was describing certain, specific activity to the judge, then arguing (unsuccessfully it seems) that that, specific activity could proceed, without doing violence to the terms of FISA, without a warrant.

Judge: The application for order doesn't permit me to craft an order within the FISA law

NSA: By construing FISA (and perhaps 18 USC 2511) such-and-so way, we can conduct the surveillance without a warrant, and in that case the deficiency in application and court order becomes irrelevant

Judge: I construe FISA otherwise (and if part of NSA argument, 18 USC 2511 "exclusive means" -- or maybe the judge brings in 18 USC 2511 sua sponte as a way to reject the NSA argument)

[bmaz]

Because the Article II argument is patently freaking absurd.

[bmaz]

That is an entirely plausible sequence; and not at all at odds with my little hypothetical judicial language. Yours may be what the judge wrote; mine may be what he/she was thinking. I'll say this, I bet the members of the FISC panel have had it with the horsemanure produced by this Administration.

[cboldt]

-- why go via Congress as opposed to invoking Article II? --

NSA and the administration have had a clear picture of the FISA modification they had in mind, since about mid-2006. This includes the redefinition of "electronic surveillance," immunity for the telcos, and a raft of other measures that are in the statutory proposals, but haven't been discussed much.

Related, the NSA knew in 2006 that, were it to be held to obtain warrants on US-based switches (the switches used to implement a significant fraction of surveillance for "one person in US, one person outside of US, one person Al Qaeda"), that this same warrant requirement would impact foreign-to-foreign traffic on the same switches. This artifact was used to promulgate a red-herring argument as to the need for the statutory revision. The statutory revision was needed to undertake "no court order, one person in US, one person out of US, one person Al Qaeda."

At any rate, one reason for obtaining a statute is that it puts the force of Congress, the DoJ, and the Courts as ALL directing the telcos to cooperate. The telcos don't have an "it's against the law" argument.

Another reason to go to Congress is to obtain statutory immunity. There are currently civil penalties, $1,000 minimum PER PERSON violated. With S.1927, violations can't happen for the time being, but it's pretty clear there were violations in the interim between Sept/Oct. 2001 and August 5, 2007. That's why the push to get immunity when Congress returns in September.

[cboldt]

-- the Article II argument is patently freaking absurd --

I think it would be heard, and it might prevail. We can't do the fourth amendment analysis, which is where this bottoms out, without knowing details that are totally hidden from view.

In the other direction, perhaps the "Article II argument" falls short (it's not really Article II anymore, since the same authority is spelled out in a statute), also depending on how the surveillance is undertaken, S.1927 might be ruled unconstitutional as encroaching on the fourth amendment. It's being attacked on those grounds. IOW, the fact that a statute exists does not mean the activity is within constitutional boundaries.

[bmaz]

And the Article II argument is patently absurd.....

[cboldt]

-- And the Article II argument is patently absurd --

There has to be a fact pattern, a case to work from. At which point the issue become "reasonableness." That one of the few ultimate legal weasel-words, and it's a real crap shoot how a court would rule on that.

As between the "FISA plus AUMF" argument, and the "executive has a constitutional authority to surveil for foreign intelligence" argument, the second argument is much better -- assuming the surveillance is in fact limited to the acquisition of foreign intelligence.

And that question, how to construe the term "foreign intelligence" and what constitutes "reasonable" are where this argument is eventually going to end up and be settled (I think -- that is, if it's ever settled in a courtroom).

Which brings up another point for "why congress." It get pending cases the hell out of Court. See, e.g., Hepting and al Haramain, and the consolidated cases before Judge Jackson in the ND of CA, etc.

[bmaz]

Well, I think there are several cogent arguments against S.1927, the "Dick Knows Best and Will Protect You Act", or whatever it is called; the Fourth certainly being primary. You're good, and I respect the hell out of you, but I am not biting for one second on the thought that there is any validity to the Article II position; especially to the extent that it relies on the concurrent assertion of the AUMF, which is how they have consistently presented it. Having spent most of my career defending criminals and representing plaintiffs suing the government for civil rights violations, it is somewhat novel for me to report that courts agree with me on anything; but lo and behold, on the Article II + AUMF assertions to date, they actually have. In some regards, those cases were actually better vehicles for said Administration argument than the instant one.

[William Ockham]

The immunity provision is what they are really after. Just like with the torture bill, they want to Congress to give them retroactive immunity for all the law-breaking done in the last 6 years.

[cboldt]

-- especially to the extent that it relies on the concurrent assertion of the AUMF, which is how they have consistently presented it --

IIRC, they've presented Article II as a stand alone; and separately argued statutory authority is the combination of AUMF plus FISA. The administration has never argued that the TSP is within the boundaries of FISA, on its own.

I find the FISA plus AUMF argument to be totally lame. What, the war in Afghanistan winds down, or Al Qaeda dissipates and some other terrorist organization comes into play (scope of AUMF no longer pertains, but threat is not diminished), and the NSA is going to stop doing what the NSA claims is effective at preventing attacks?

Meaning, it's lame not just as a matter of legal principle, it's lame as a matter of getting the job done.

I respect the difference of opinion that says FISA stands as the exclusive vehicle for foreign intelligence. But when an activity is outside statutory law, but inside the constitution, courts typically permit the activity to stand. As I said before, the resolution would be very fact specific, and we don't have that.

[cboldt]

The Jabara case is one where warrantless surveillance by the NSA resulted in evidence being used at trial. The conviction stood, notwithstanding the surveillance of a US person, in the US, without a court order.

I find the Circuit Court opinion to be an exercise in outcome-oriented jurisprudence. They completely reversed the meaning and effect of a key cite, Halkin v. Helms, and totally sidestepped the issues surrounding the communications acquisition. The appellate court, in a conclusory way, said "the acquisition was lawful."

I expect a likewise outcome oriented decision in the Al Hamarain case - at SCOTUS if it has to get that far, where the court will say there was probable cause, independent of the NSA surveillance.

[bmaz]

I vacillate in my thoughts on what the Supremes will do if it makes it there. In a way, I think it depends on how far off such a consideration would be. Scalia, Alito and the silent puppy dog Thomas are what they are and will remain a block. It has been my belief since he was nominated that Roberts would evolve considerably, both with time and the advent of a Democratic administration. Not as far as Souter, but much more to the centrist position. Considering the 9th Circuit panel hearing al Haramain/ATT matters; it is a pretty safe bet it will go up the food chain. FISA (which I still maintain is of questionable Constitutionality) simply will not sanction what they are doing in the manner they insist on doing it; it appears that it could if they would agree to play it straight. You are right, it is hard to make a very informed conclusion based on what is known. I agree with the conclusion in your last two sentences; I just disagree that they are doing anything within the Constitution. Quite frankly, and this is not the kind of statement you usually get out of me, but if their "program(s)" were anywhere close to being within the Constitution, they would not have gone through the malevolent contortions they have, and we would not be where we are today.

[cboldt]

Lifted from a comment by Howard Gilbert at Volokh (AFAIK, he's just an anonymous poster as most of here are) ...

Remember that, except for the recently overturned Detroit NSA case, the courts have consistently ruled that a warrantless search for the purpose of national security is inherently reasonable, while a warrantless search for criminal prosecution is presumptively unreasonable.

I believe that is true. The "foreign intelligence/national security" purpose vs. criminal prosecution purpose is very important to the analysis. Ant that distinction also drives the difference in "probable cause," as between FISA (aimed at foreign intelligence) and criminal law (a need to elucidate how one arrived at the belief a crime was committed).

There are serious efforts to blur the line between these two notions, "foreign intelligence purposes" and "criminal activity," and the FISA court is wary of bootstrapping criminal probable cause on a "no cause" surveillance regime.

[JohnJ]

I am fascinated and awed by the legal discussion (thanks bmaz and cbolt) but I see a hole in this thing that the legal argument has no effect on: the switches (line taps) are in and operational. I just can't believe for a minute that any legal decision is going to stop their use. These guys are using every facet of the technology on a daily basis. Believe me, every ex-wife, estranged lover, hated neighbor, rival, and ex-boss of everyone in that office, has been checked up on and listened into (never cheat on an NSA employee).

The only reason for the legal argument is whether the data they collected can be used in court. The people using it for nefarious purposes (think the Big Dick) won't be slowed down one bit. Until someone physically removes that equipment IT WILL BE USED.

[bmaz]

Without arguing over details that are not necessarily germane to where we are at here, I can pretty much agree with your last. Heh heh, I know you must be absolutely thrilled with that!! Seriously, I think where we are diverging here is that I do not believe for one second that the uses and modalities you contemplate (and Howard Gilbert too it appears) are sufficiently and narrowly tailored to that limited reach and are therefore inherently collecting up every kind of collateral information imaginable, including mass numbers of innocent US citizens, and that they retain this info intentionally and cross-purpose utilize it. To drift down to the lowest common denominator banter of Bush, I have no problem with "listenin in on al Qaida's phone calls", or any other legitimate foreign intelligence/national security action. I am convinced that such can be done within the auspices of the Constitution and judicial supervision; and I am convinced that the reason there is no legitimate attempt to do so is because the Administration is doing much, much more, that there is no rational basis for, they either have and/or intend to use the resultant info for inappropriate purposes and they petulantly don't want to stop nor answer for their previous conduct.

[cboldt]

-- The only reason for the legal argument is whether the data they collected can be used in court. --

That, civil immunity, and being compensated from the taxpayer.

There are more plans for statute changes. Check out the 66 page proposal from April, or last year's proposed bills that never got traction.

-- Until someone physically removes that equipment IT WILL BE USED. --

You can take that to the bank.

[Ishmael]

Bmaz & Cboldt - as a matter of American law, are the members of the FISC prevented by the nature of their jurisdiction from exercising a constitutional remedy, and declaring their statute unconstitutional as violating the 4th Amendment? I assume that they are only able to apply the Act and approve the warrant application, and do not have power under FISA to issue any other type of ruling. My guess is, that only a court with inherent or extremely broad statutory jurisdiction declare FISA unconstitutional. The difficulty with using the federal courts, it would be very difficult to get a constitutional remedy, as Congress has really gamed the system. Especially with the new 6 month new & improved FISA, by the time any other court than FISC can issue a ruling (which I think is very arguable on 4th amendment grounds) the doctrine of mootness will set in, assuming that the standing arguments or the inevitable state secret application is made. So, if Congress wont help, and the judiciary cant help, we find ourselves in a situation where the 4th Amendment has essentially been made irrelevant, unless there is a way for a FISA judge to short circuit the whole system.

[bmaz]

Ishmael - Are you sure you weren't reading my comments while you were away? Heh Pretty much of the last half of your comment is exactly what I have been saying for almost two weeks now. As to the first half of the comment, and I fully admit cboldt is much better than I on statutory details at play here, but I would think that the FISC is a duly formed Federal court, and the members are regular federal judges to start with, so they could indeed rule on constitutionality. Effectively, as a practical matter, due to the type of considerations inherent in the "security/intel" process, some of which have been touched on here, it is hard to imagine there is much precedential effect unless reviewed and appealed to SCOTUS.

[Ishmael]

Bmaz - I guess it's like my mother used to say, "great minds think alike, and fools seldom differ."

[earlofhuntingdon]

Nothing like waiting for Congress to go home to partially fess up to violating the law, but clinging to a reed-thin rationale for why you haven't. If Congress hadn't gutted the FISA statute, this claim and revelation would never have seen the light of day. Just like, had the GOP kept the Senate in '06, Rumsfeld's pre-election resignation letter would never have been accepted.

[Garth]

i am convinced rumsfeld was ditched after the elections because to do so would have looked too much like W was caving to pressure.

never show weakness is one of this administrations many notrious mottos.

[Garth]

to do so earlier...

[cboldt]

-- are the members of the FISC prevented by the nature of their jurisdiction from exercising a constitutional remedy, and declaring their statute unconstitutional as violating the 4th Amendment? I assume that they are only able to apply the Act and approve the warrant application, and do not have power under FISA to issue any other type of ruling. --

That's correct. They are a court of limited jurisdiction, and that is the suitability of a warrant application.

That jurisdiction isn't void of constitutional ramification. It can be seen in In re: Sealed Case that some of those warrant applications do touch on constitutional issues, and inasmuch as the FISC is consistent in construction of the statute (e.g, in "In re: Sealed Case," the FISCR construed an interface between FISA "probable case" and criminal law, where if "a significant purpose" of the surveillance was to acquire foreign intelligence, the the acquisition could be shared with law enforcement).

Just the same, neither the FISC nor the FISCR is competent to rule on the statute itself, which is the question you asked.

And on a quick thought, I don't see a way to get a statute invalidating case before any other court, as long as the court grants the government's claim of state secret. I can imagine cases from time to time where NSA-related evidence comes in by accident (see al Haramain), or deliberately, but the average Joe is (and most defendants will be) SOL, "no standing."

Rather amazing stuff. Congress and the executive co-opting the courts.

This area, and recent creation of a parallel justice system under the military wing (detention, interrogation, and trial), with rules of evidence and procedure unlike civilian justice system, represent radical changes.

[P J Evans]

Garth

Did you notice that Rumsfeld's resignation letter has gotten out, and it's dated November 6, before the election? I've seen it on the AP wire at the LA Times and at Talking Points Memo.

[cboldt]

The incomplete thought in the paragraph/sentence that starts "That jurisdiction isn't void of constitutional ramification ..." was basically reiterating the opening sentence. The substance of a warrant that defines the limits for sharing of data from foreign intelligence to criminal law is, in it's own right, a species of constitutional law.

[bmaz]

And therein rests exactly why I deferred to you substantially on the question. I was concerned about that type of limitation; but they can, through the nature of what they do review, effectively judge the act on constitutionality. It would be indirect and doesn't mean much if there is never any review up the chain. Is there any word anywhere about the proceedings in SF today? May still be underway...

[cboldt]

As between "primary purpose" and "a significant purpose," the original threshold is an artifact of the government argument in the first place. Congress, when dickering over the USA PATRIOT Act (IIRC), dickered about the government request to change the threshold for sharing to "a purpose."

I believe that threshold could be tested by an appellate court, and depending, could work its way up to SCOTUS.

I just looked around for word on the hearing in the 9th Circuit, and didn't see anything. It should be over by now, but just barely. One hour and 40 minutes total, starting at 5 PM Eastern.

[cboldt]

Audio Files of Ninth Circuit Oral Arguments

Looks to be about a one day delay, for those who want to hear the whole thing.

I don't know if EFF or anybody else will host a transcript. I sure don't trust summary reports to get it right, I don't care which side they're on.

[mighty mouse]

bmaz and cboldt--this is a bit off the wall, but do you think the opinions and rulings of the FISA court judges in their day jobs are affected/have been affected by what they're seeing coming into FISC? they know what we do not, and I wonder if it affects how they view other cases involving the Bush administration....

[cboldt]

-- do you think the opinions and rulings of the FISA court judges in their day jobs are affected/have been affected by what they're seeing coming into FISC? --

I don't follow the "habits" of any individual judge carefully. I've never heard an insinuation that what they were getting in the FISA setting affected their day jobs. Many of them handle similarly sensitive information (classified) in private (in camera - in chambers) and out of sight of the other party (ex parte) already, in their day jobs. I would think the Chief Justice of SCOTUS would pick for FISA, judges who are already exposed to this sort of thing, so as to avoid a mental breakdown on the part of a judge.

[bmaz]

Yeah, I agree with what cboldt said. At least on a conscious level, I would think the judges that get assigned to FISC are experienced and mentally stout enough to not let that impinge on their regular docket. On a sub-conscious level, there is going to be some impact, but that is no different than every other aspect of a judge's life. What he sees, hears and experiences becomes who he is and plays a part in how they view things. That is a good thing though, I don't think you want rote automatons at this level. As to the impact on their FISA duties, you bet they keep mental notes and beliefs about what has gone on, who has tried to blow BS by them, etc.; there is simply little way around that. I mused earlier that the FISC panel members are likely a bit weary from dealing with the Bushies; can't imagine many tears will be shed in January 2009.

[bmaz]

From EFF Website:

"NSA Surveillance Comes Under Fire Today in Appeals Court Battle

San Francisco - In a packed San Francisco courtroom today, the Electronic Frontier Foundation (EFF) urged the 9th U.S. Circuit Court of Appeals to allow AT&T customers to continue to fight against illegal spying on their telephone and Internet communications.
....
C-SPAN television recorded today's hearing and said it would air later in the day.

The appeals court did not make a ruling Wednesday. The decision will be released at a later date."

Well, there is at least one thing wrong with this picture; I don't imagine there was any filming for television that actually occurred, nor that there will be "Film at 11" on CSPAN. No juicy details on the arguments yet.

[cboldt]

This post at Volokh has comments (f course), and a link to a live blog by "Wired".

I'm reading it ... See you there ;-)

[KLynn]

I agree with the prospect that a telecom exec had something to say about FISA. Consider this from USA Today and 60 minutes:

"Among the big telecommunications companies, only Qwest has refused to help the NSA, the sources said. According to multiple sources, Qwest declined to participate because it was uneasy about the legal implications of handing over customer information to the government without warrants.

Qwest's refusal to participate has left the NSA with a hole in its database. Based in Denver, Qwest provides local phone service to 14 million customers in 14 states in the West and Northwest. But AT&T and Verizon also provide some services — primarily long-distance and wireless — to people who live in Qwest's region. Therefore, they can provide the NSA with at least some access in that area. "

[Ishmael]

cboldt - thanks for the link, excellent live blog by Wired. If the case does survive summary dismissal, at least the discovery stage can continue, and who knows what might come out of that?

[bmaz]

Alright. Just had a brief chat with the folks over at EFF. The hearing is over. The panel is Harry Pregerson, Mike Hawkins and Margaret McKeown. They were cautiously optimistic as to how things went. Apparently there was quite positive focus on the fact that the al Haranain plaintiffs actually had evidence in the form of the secret call log they temporarily had possession of; as well as the fact that EFF's client had the testimony of the ATT employee. I am not sure why that is overly determinative on the argument to disallow the cases on national security grounds, but they were plussed. The makeup of the panel is as good as you are ever going to get for cases like these. I had been trying to find the names of the panel members the last two nights (someone smart would probably just make a call during the day, or renew their PACER account, but no, I tried to do it in the middle of the night with Google). Pregerson I don't know, but have long known of. He is legendary in Southern California, partially for his involvement in critical water decisions. He is pretty old, but very bright and extremely liberal; couldn't ask for a better guy for this. Mike Hawkins I used to know pretty well many years ago. He is a cowboy at heart, and a wild one at that. A true character you could trust with your life and drink a lot of beer with. Margaret McKeown I don't know diddly squat about. Like Pregerson and Hawkins, she was appointed by a Democrat and is from the Seattle area. Apparently, she specialized in intellectual property law and was a partner at Perkins Cole in Seattle before ascending to the bench. That part I don't like, Perkins Cole is a nasty corporate group, not necessarily with the highest standard of conduct, and works for big business; you know, like telcos. Democrat or not, she may well have some sympathy with ATT. Still, all things considered, as good a panel as can be expected. Encouraging overall so far.

[Mary]

The March issue sounds to me like they either got a different judge at the 90 day mark or that their "old" judge realized new eyes would see what he had done and he began to have some secong thoughts - then they either had continuing troubles with that same (second)judge if 2nd judge was their first round of trouble, or they got into trouble with the second Judge for the May problem.

When they brought The Program into the FISA fold, they spoke of doing it in terms of "orders" (which I think is technically what the FISA court issues rather than warrants) that were for 90 day intervals.

So I do not think that "The Program" involved stand alone warrants, or at least, not only stand alones. Maybe in part, but there was something else going on there - some kind of pre-determinations that were going to be "good for" at least a 90 day period. And more than one order was at issue - so they could have been shot down on one order in March and then on the application of another order in May.

Here is a link to the transcript of DOJ officials chat with journos on the FISA Ct "approval" of The Program.

http://www.tpmmuckraker.com/archives/002361.php

I thought it was pretty interesting at the time. They make it clear that there is more than one element of the program, bc they got more than one order from the FISA judge and they explain there are 90 day renewals.

They also try to make it sound - then - as if the orders are not "cookie cutter" round ups, but "complex" but the answer imply basket warrants or possibly some kind of hybrid that most people might think of as coming perilously close to a general warrant. If you read the whole thing, there is this hint of euphoria - of "we pulled off something that has never been done" kind of undertone.
[snip]
QUESTION: Is the orders authorizing the government, is that a standing order, or does that mean you still have to seek a warrant every time you want to use the program?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, I really can't get into the particulars of the orders, but just like any orders from the FISA court, they're for a period of time. These are orders for 90 days. There's more than one order. . . .
QUESTION: But they're orders sought for specific individuals, or are kind of standing -- standing permission to use this authority on whomever you deem it necessary?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, again, I'm really not in a position to describe the classified details of the orders. I will say that these are not -- these orders are not some sort of advisory opinion ruling on the program as a whole. . . . I will say, however, that the orders we're talking about here are not some cookie cutter order where you can just take a book down off the shelf with a model application and slap it together and file it with the court. These orders are complex. It took a long time to work on them. People have been working very hard on this for almost two years actually, and it has just now been approved a week ago by the judge of the FISA court.
QUESTION: Can we then interpret what you're saying as meaning that this is not a blanket authorization for the activities?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, as the letter describes, there's still the requirement that there's probable cause to believe that one of the parties of the communication is an agent or member of al Qaeda.
QUESTION: So does there have to therefore be some sort of finding in each specific like application to conduct some surveillance just so that there is al Qaeda connection?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: . . . But I will say that the probable cause determinations we're talking about are subject to review and approval by the (audio gap).
. . .
QUESTION: . . .How is it a classified -- how is it a big secret as to whether these orders that you're talking about are individualized or broader than that?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Let's just say I'm not in a position now to talk about the specifics . . . I will say that these are complex orders, that the approach taken in the orders is innovative
...
QUESTION: Who makes the determination of probable cause here? Is it the judge that has to approve that there is probable cause in each individual circumstance?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: . . . Statutory probable cause findings have been made by the judge. And again, all surveillance, all collection of communications that may occur under these orders will be subject to the approval of the court.
QUESTION: So each individual case, the judge has to make a probable cause finding, it's not an executive branch official who can make that determination?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: There are probable cause findings required by the statute that the judge has to make, and he has made those findings.
QUESTION: You say the judge has already made essentially a blanket probable cause finding. Is that correct?
VOICES: No.
QUESTION: Well, that's what he seems to be saying.
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: That's not an accurate statement.
[editors note - so yes, the Judge "has made" the probable cause determinations, for a 90 day period, but no, he hasn't made a blanket probable cause determination - like for a blanket warrant - uh huh]
QUESTION: Okay.
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: But beyond what I'm saying, I'm not really going to get into the specifics of how the order is configured and how the operation under the orders

This part should have gotten a comedy award - asked about whether or not they are going to go brief the Judiciary committee on the FISA orders, the DOJ officials wax nostalgic on how "The Program" was briefed to the intel committees and all the oversight they had been exercising over the last few years. Uh Huh.

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: We hope to. In terms of the Intelligence committees, of course, as you know, the full Intelligence committees, both in the Senate and the House, are fully briefed into the terrorist surveillance program and have been involved in very extensive oversight of the program. So they are fully up to speed on the program. And so, very shortly after obtaining these orders from the FISA judge, we went up to the Hill and briefed both committees.

One questioner (let's call him/her prescient)got around to asking - what happens after 90 days?

QUESTION: . . what happens after 90 days? Because you said that these orders now are in effect for 90 days. Are you guys going back and reviewing them every 90 days, or what happens?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, that's typical for FISA orders. They're not in perpetuity. They usually are in operation or approved for a 90-day period or a similar period. And so it would be our intent and our expectation to seek reauthorization of the order after that period. . . .

QUESTION: Let me just ask whether or not the orders are retroactive. I'm trying to figure out if they deal at all with prior activities that you've conducted under the TSP, and also, I mean, do you believe that these orders insulate you from all legal attack? I mean, do you expect that the case, the NSA case before the 6th Circuit is now moot, or what?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: You just asked a lot of questions. I mean, FISA orders are prospective in the sense that you're seeking authority under a FISA court approval to do X, Y or Z. So we're talking about a -- it's not unusual in that sense. This is an order to approve surveillance for this 90-day period covered by the order. [editors note - but remember - it's not a blanket finding of probable cause] Now in terms of the litigation, . . .but as you know, some of it is retrospective in seeking damages, including against private parties. Some of it is forward-looking in terms of litigation seeking injunctive relief to try to stop something from happening, including challenging the terrorist surveillance program and the President's authority as we described it to take that. So, an order like this will likely have a significant impact one way or the other. Obviously, it's up to the courts in those cases to decide what the significance of the order is. And they'll have an opportunity to do that.

So a couple of things here.

First off - isn't it convenient that, just days before the Harimain (sp?) and Hepting/EFF cases get oral arguments before the Sup Ct - two cases with some hard evidence in each (the NSA logs in the charities cases and the ex-ATT worker's affidavits and statements in the EFF cases) that suddenly Congress is handing out legislative candy - authorizing the kinds of broad sweepups of info that are at issue in the one case, and the kinds of ability to eavesdrop with no Judicial findings of probable cause - just the AG's say so - in others? Especially when you can see how eagerly the DOJ officials were to claim that the FISA "order" that now isn't insulated them? So when you lose one blanket - I guess you just grab another.

Their references to time frames - btw - that is also one reason that I think some of the Presidential "45 day review" on the old program - a program that the FISA Chief judges both thought illegal and unconstitutional when briefed on it - was in part appeasement that was in some way offered to the FISA court. That court barred any use of the illegal program info and I think that only makes sense if they required updated certifications from time to time that the info was being kept out of the courts and wasn't contaminating other warrant/order applications. And that's why I still kind of lean to the fact that the certifications were untrue (possibly the Harimain case was getting ready to publically demonstrate info that would let the FISA court know that the certifications given to them were untrue) and the showdown was a showdown bc of the FISA court - not the order itself or the program itself, which had been ongoing for some time. A different thing for a lawyer to certify an untruth to the court - especially a court that is about to find out or has found out that you are lying - than to just sign off on memoranda soliciting torture or affidavits invoking state secrets to cloak gov conspired torture.

You can actually get into trouble for lying to the court.

Not so much for soliciting and covering up torture - at least, not in the DOJ that the loyal Bushies have left us.

BTW - we do also learn that there has only ever been the one FISA appellate decision that I linked before.

QUESTION: You mentioned something about development of the FISA statute. Has there been an additional ruling from the FISA Appeals Court? Is there something that has actually happened in the case law regarding FISA?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: I'm not talking about a court of review decision.
QUESTION: So there has not been one or there has been one?
SENIOR DEPARTMENT OF JUSTICE OFFICIAL: There's only been one court of review, FISA court review ever.

[KLynn]

bmaz,

Thanks for the updates. I had been writing about this over at the Lake and received negative feedback that the case had no hope in finding FISA unconstitutional. I am hopeful and plan to be a "glass half full" person right now.

[cboldt]

-- Qwest's refusal to participate has left the NSA with a hole in its database. Based in Denver, Qwest provides local phone service --

Kinda interesting, when the TSP is presented as "one person foreign, one person US, one person al Qaeda" and "foreign-to-foreign" are the supposed things that ought to come in without a warrant -- yet there is angst at a hold out that provided local service?

Anybody know if Qwest owns a switch with an international (US-to-out-of-US) wire?

I know the government has been pissed at Qwest for some time, about the lack of cooperation. That's why the compulsion aspects of S.1927 are important to the government.

I was also interested in the comment about AT&T pushing domestic data out of the country, then back in. Seems like a loopy trick that no Court would accept as "data coming from offshore." But who knows. At any rate, I'm not buying that one, for the time being. If the government is grabbing domestic stuff, I figure they'd just grab it, nevermind wasting some technical charade.

I was also interested that the government will not swear that it is not conducting domestic surveillance without a warrant. It's is will to shout it in the newspapers, but it won't swear to it.

Courtrooms and statutory language are where the action is.

[Mary]

Remember that, except for the recently overturned Detroit NSA case, the courts have consistently ruled that a warrantless search for the purpose of national security is inherently reasonable, while a warrantless search for criminal prosecution is presumptively unreasonable

I do not believe that is true at all. Actually, the warrantless wiretaps in the Keith case were stated to have been for domestic security purposes and were not being used for evidentiary purposes. The only reason that they came out of the woodwork was that the defense counsel made a broad - blanket production request. The prosecutors in the Keith case didn't even know about the warrantless wiretaps and hadn't reviewed them as a part of the case.

As a matter of fact - IMO the Keith case also resolves the issue of state secrets that keeps being invoked. If you look at what happened once the prosecution found out about the wiretaps from the FBI, you had an affidavit filed by that invoked national security and state secrets and met the three prong test for a state secrets affidavit and requested suppression.

But Judge Keith said phooey - you can't violate the Constitution and cover it up by invoking laterday secrecy for your unConstitutional warrantless actions. Of note - the Sup Ct agreed with Judge Keith. Of course, that was pre- Roberts & pre-Alito etc. (btw - you know that Roberts gets to make the FISA appointments, right?)

What has happened, over and over, is that in cases of FOREIGN persons - who were not having criminal cases pursued against them - the issue has always resolved down to the ability of the Executive to eavesdrop on foreigners for not only national security per se, but national interests/international diplomacy types of interests. There is some weird/wild dicta here and there on other aspects, but no one has ever said warrantless eavesdropping of a US citizen on US soil by the US govt is not subject to the warrant requirement bc the govt is eavesdropping for some subjectively deteremined "national security" interest as opposed to a criminal prosecution interest.

While the standards for probable cause may very well be different for eavesdropping on calls of a US citizen on US soil with foreign powers, I don't see anything, anywhere, that says that the warrant clause evaporates for US citizens when the eavesdropping is for political rather than prosecutorial purposes. (As a matter of fact - the assumption in FISA that it is ok for a FISA court to issue an order/warrant that involves a US person - based only on a finding of probable cause that they are talking to a foreign power and not a finding of probable cause that they are involved in a crime - has never been judicially tested at all and isn't a slam dunk even if the statue is complied with).

Even if that were the case - two points also exist to distinguish the situations.

First off, the wall is down. Now - the "security" eavesdropping is expressly made available for criminal prosecution purposes.

Second off, Padilla. The Executive has now asserted the power to not only eavesdrop for "security" purposes, but to use that information to kidnap a US citizen into black detention with no lawyer and no recourse, and to abuse that US citizen for hours, days, weeks, months, and years.

When the use to which the information is put is to allow the Executive to proceed to issue secretive bills of attainder and visit punishments, deprivations and depraviations on a citizen - then you have a situation where the citizen protections are actually more necessary than for a criminal proceedings where at least due process attaches.

IMO fwiw.

[bmaz]

Klynn - I remain cautiously optimistic. But, if this kind of challenge can't survive with this panel, in the 9th Circuit, then it truly is a dead issue. Don't know how the ruling will come down, but you just can't get a better situation as to the facts supporting the claims and the judicial panel entertaining the matter.

[cboldt]

-- received negative feedback that the case had no hope in finding FISA unconstitutional --

These two cases just heard in oral argumnent in the 9th (Hepting and al Haramain) aren't about FISA being unconstitutional. Each seeks declaratory relief (promise not to conduct surveillance), and maybe (I'd have to check) money damages for past surveillance. The statutory scheme is not being attacked in these cases.

CCF has filed a supplemental complaint in a different case (where it is the plaintiff), where the supplemental complaint challenges the constitutionality of S.1927.

The pre-S.1927 FISA statue has been subjected to numerous challenges for constitutionality, and has survived every single attack.

[Mary]

But when an activity is outside statutory law, but inside the constitution, courts typically permit the activity to stand.

Unless I misunderstand you - again, I don't agree. That is what the Youngstown case was about (President acting within power that he likely had Constitutionally if there had not been a statute - but bc of the statute 'lowest ebb analysis' not allowed to act in that manner).

Of course, as per above, I don't agree that the surveillance of US citizens on US soil by the US gov is ok - Constitutionally - under a "national security" v. "criminal prosecution" diferentiation, so that also colors my view.

HOwever, I don't think Congress can legislate away exigency as a defense where there is true exigency. Which is where this all should have gone IMO.

And isn't that 1000/person FISA penalty a 1000/person/violator penalty? So it can be imposed on more than one persone who engaged in the wiretapping? And then there is also the criminal part of the statute. I don't know what the SOL is, but I'm wondering how much all this is also about trying to run out the SOL by insulating most of 2007/2008 with legislative revamps.

Oh well - too much gabbing. Off for now.

[Mary]

I lied - this real quick:

Scalia, Alito and the silent puppy dog Thomas are what they are and will remain a block.

I don't know that Scalia should be put in that category. In Hamdan, he was actually willing to overrule Ex parte Quirin and he thought the O'Connor "no blank check, but I'm not going to give you an overdraft yet" namby pamby opinion was nonsense. His opinion says he was flat out willing to rule the Executive had violated the Constitution - once Hamdi got on US soil - by refusing habeas and due process.

He also has to be pissed about Roberts getting Chief Justice (and you know that was pretty much a Bush smack at him over Hamdi) - but personal issues aside, he is the guy- too - who sided with the "liberals" on the right to counsel case. He is very pro gov/pro police powers, but he also will at times dig in and assert a libertarian streak on some issues when it comes to US citizens on US soil. And he isn't all that afraid of transitory Presidents.

FWIW.

[cboldt]

-- There is some weird/wild dicta here and there on other aspects, but no one has ever said warrantless eavesdropping of a US citizen on US soil by the US govt is not subject to the warrant requirement bc the govt is eavesdropping for some subjectively deteremined "national security" interest as opposed to a criminal prosecution interest --

I agree. The phrase that operates isn't "national security," (as Howard Gilbert -- and others -- put it) but "foreign intelligence." Once one morphs the qualifier into "for national security" instead of "foreign intelligence," the door gets opened to purely domestic activity.

I'll revisit the Keith case to see if it is contrary to the position that no warrant is required for foreign intelligence information, as well for how it handles the phrases "national security" and "foreign intelligence," and how those play in the executive's Article II power.

-- When the use to which the information is put is to allow the Executive to proceed to issue secretive bills of attainder and visit punishments --

I had the same sinking feeling in December 2005. It's not so much the surveillance without a warrant, but how is it to be put to use? Is it useless in criminal prosecutions? Wasted effort? Used to bootstrap a finding of criminal probable cause? Used to make people disappear? It's one thing to HAVE information, but the real rubber meets the road in what is done with the information once it's in hand.

[cboldt]

-- And isn't that 1000/person FISA penalty a 1000/person/violator penalty? So it can be imposed on more than one persone who engaged in the wiretapping? And then there is also the criminal part of the statute. I don't know what the SOL is --

IIRC, it's short as in 90 days or something.

I'm not sure the money damages are in fact a strong threat, but you can bet there'd be a class action to defend, which would be plenty worth trying to avoid.

[cboldt]

-- That is what the Youngstown case was about ... --

Understood that "power is at lowest ebb," but if the surveillance is in fact of "foreign intelligence information" (a fact inquiry, and I have my doubts it could be met), then the statute would be argued to be impinging an area that is primarily executive territory under the constitution. IOW, the Court might hold that Congress lacks the power to legislate a limitation there in the first place.

And even if Congress has a power, and the president's is at "lowest ebb," there is a possibility of some "gap" between the statute's outer limit and the executive's power under the constitution.

I mentioned above, there are other possible arrangements / overlaps between statute, constitution, and the actual surveillance. I can imagine a statute encroaching on the 4th amendment, for example.

[cboldt]

The Keith case isn't useful for evaluating line drawing respecting foreign intelligence. The fact pattern was purely domestic.

this case involves only the domestic aspects of national security. We have not addressed, and express no opinion [407 U.S. 297, 322] as to, the issues which may be involved with respect to activities of foreign powers or their agents.

And as Mary pointed out, the Court is not going to give the president a blank check for surveillance for domestic national security. For that, said the Court in Keith, he needs a warrant. He didn't have one in this case, and the evidence was precluded.

[cboldt]

Here's a (hopefully) useful revisit to the comment by Howard Gilbert at Volokh (where he said "national security") ... and I said, "I believe that is true."

I believe that is true. The "foreign intelligence/national security" purpose vs. criminal prosecution purpose is very important to the analysis. Ant that distinction also drives the difference in "probable cause," as between FISA (aimed at foreign intelligence) and criminal law (a need to elucidate how one arrived at the belief a crime was committed).

Hopefully, the impression that paragraph made to the casual reader was more "foreign intelligence" and less "national security." If not, this is a great time to re-emphasize that the president's power is stronger in foreign intelligence, and that "national security" without that "foreign" component is an inter-branch function, subject to all the warts, inefficiencies and checks that come from multi-branch checking.

And Mary was 100% correct too - she took the phrase "national security" and illuminated it under the domestic threat scenario of Keith -- warrant required, with all the caveats, etc. that come with what we think of as normal fourth amendment jurisprudence.

[cboldt]

Just checking civil damages remedies.

Under 18 USC 2520 (wiretapping, not FISA), 2 year statute of limitations, $10,000 statutory damages per plaintiff.

Under 18 USC 2712 (stored communications - think e-mail, remote voicemail) - first exhaust remedy under Federal Torts Claim Act, 2 year statute of limitations, $10,000 damages (minimum)

Under 50 USC 1810 (FISA) $1,000 damages, no statutory statute of limitations!

Attorney's fees are paid as well, if the case is won. Each cause of action has some significant hurdles - by no means are they easy cases, and the government has a number of defenses.

I haven't read the Hepting case (or others) looking for money damages. My quick mental impression is each person mostly wants the surveillance to stop. I don't recall any "big money request."

[bmaz]

Heh. They ask to be shown the money. There may be trial lawyers of this level that would do this brain draining kind of trial/litigation work solely for the injunctive relief, but I haven't ever run into any of them. Not even my "public interest" friends; if the remedy is available, you seek it. For one thing, you have to. If you don't and the equitable relief becomes moot (as it arguably is in al Haramain) you have to have a prayer for monetary damages, or you are out.

[bmaz]

Heh. They ask to be shown the money. There may be trial lawyers of this level that would do this brain draining kind of trial/litigation work solely for the injunctive relief, but I haven't ever run into any of them. Not even my "public interest" friends; if the remedy is available, you seek it. For one thing, you have to. If you don't and the equitable relief becomes moot (as it arguably is in al Haramain) you have to have a prayer for monetary damages, or you are out.

[cboldt]

Oh - I'm sure there are money damages there ... I just don't recall hearing some stunning number. The focus seems to be on the offense rather than the remedy. In contrast with big tobacco, big oil, big Mac ;-)

[cboldt]

That's what I get for not reading the complaint ...

In the suit filed Tuesday, EFF is representing the class of all AT&T customers nationwide. EFF is seeking an injunction to stop AT&T participation in the illegal NSA program, as well as billions of dollars in damages for violation of federal privacy laws.

I'd say that qualifies as big money.

[bmaz]

You kick my ass well enough on the statutory and legislative details; but I got a bit o experience with the actual trial junk. Like I said, they are probably out there that would do this without more than nominal concern about the money; but I ain't ever seen em.

[Katie Jensen]

Thank you to cboldt, bmaz and Mary. Fascinating read for non lawyer folks. Very meaty. Really a priviledge to hear/read such analysis in real time.

Really fascinating.

[cboldt]

-- the Youngstown case was about (President acting within power that he likely had Constitutionally if there had not been a statute - but bc of the statute 'lowest ebb analysis' not allowed to act in that manner) --

Youngstown v. Sawyer, 343 U.S. 579 (1952)

It's a grand old case. Check out the velocity of action. EO on April 8, 1952; District Court Order (injunction against effecting the order) against the president on April 30; Circuit Court stayed the injunction the same day; SCOTUS granted certiorari on May 3, the case was argued on May 12 and 13, and the decision was handed down on June 2nd. The steel companies made a ruckus - Congress (as usual) did NOT.

At any rate, the legal analysis concluded that the president acted outside the bounds of HIS Constitutional power. Not that the action was an infringement of the people's rights either, the Court held that if the order HAD been promulgated by Congress, it would have passed Constitutional muster. It cited numerous occasions where Congress had ordered seizures. I assume the same would be true with surveillance, that in certain circumstances, Congress could prescribe certain surveillance activity that any one of us might find objectionable.

The dissent in Youngstown is worth re-reading too -- if for nothing else than to visit the historical occasions when a president HAD seized property. Play scenarios of shortages of oil, cola, or agricultural commodities in your own mind, and ponder who will be the first to act, the president? or Congress?

On April 21, 1952, the President sent a letter to the President of the Senate in which he again described the purpose and need for his action and again stated his position that "The Congress can, if it wishes, reject the course of action I have followed in this matter." Congress has not so acted to this date.

At least the action was transparent to the public.

On a passing note, unrelated to Youngstown or NSA, read the 3rd amendment, the one that prohibits quartering of troops in the homes. It goes on except (oops, you meant the government CAN quarter troops in homes? You bet it can!!!)

The bottom line distinction between Youngstown and this case is that Youngstown was about a domestic facility, and the president will argue that the bottom line in the NSA activity is "foreign intelligence information."

I still see "foreign intelligence information" as being the most likely ground for the battle of factual inquiry, if there ever is one. I sense that the term of art "foreign intelligence information" will be argued in Orwellian fashion to represent something that more closely resembles "national security" than "foreign intelligence."

Bit sadly, unlike Youngstown where the substantive debate was conducted without twisting the meaning of words, and the substantive debate was conducted in full view of the public, the NSA cases are being argued with secrecy as the primary weapon, and the use of sophism being a strong back-up.

[cboldt]

-- Thank you to cboldt, bmaz and Mary. --

Am I purged the taint of being a truly ignorant sexist racist? Or is just the "ignorant" part lifted? (maybe temporarily at that)

[cboldt]

LOL "shortages of cola" I need more coffee. I can imagine a shortage of cocoa too. Anyway, I meant to type c-o-a-l, not c-o-l-a.

And the worst would be a shortage of b-e-e-r.

Anyway, "Thank you," Katie and others, for the expressions of appreciation for the dialog presented on the thread. I should have put a smilie at my 8:02 -- I'm not trying to open an old wound, if there ever really was one in the first place.

[KLynn]

I wonder why former Qwest CEO and the Qwest lawyers who wrote an in-company ruling on the NSA request for phone records were not called as witnesses? If you did not see his interview, it's worth a read.

http://www.cbsnews.com/stories/2006/05/12/politics/main1616326.shtml?source=search_story

[J. Thomason]

Keep up the good work all. I have been a bit caught up in my day job to be following things very closely here, but I did think that the wiretapping issues gave traction to impeachment considerations and I have been very disappointed in expansion and renewal of FISA that went down a couple of weeks ago. What an absolute capitulation of duty. You know police have always had the ability to kick down the door without a warrant but because they can do it does not make it legal. Likewise the technology argument is a canard.

In any event I am off for a trek in the Altai Republic of the Russian Federation for three weeks. Keep the faith.

[cboldt]

the NSA told Qwest that not sharing the phone records could ... affect its chances at landing classified contracts with the government, [an issue] that play[s] a role in Nacchio's own legal woes.

Nacchio wanted to bring evidence into his insider trading trial, relating to the contracts spoken of here.

Judge issues secret ruling about secrets in Nacchio case - Oct. 25, 2006

[cboldt]

I see the link doesn't work. Here's what it contained at the time I made note of it.

Judge issues secret ruling about secrets in Nacchio case
By SANDY SHORE AP Business Writer
Wednesday, Oct. 25, 2006

(AP) - DENVER-A federal judge has issued a secret ruling about the relevance of classified government documents that former Qwest Chief Executive Officer Joe Nacchio wants to use in his defense against insider trading charges.

In his memorandum and order, which were filed with the court late Tuesday, U.S. District Judge Edward Nottingham said he explained his decision regarding the documents but the bulk of it, 25 pages, was sealed under the Classified Information Procedures Act.

Nottingham's ruling came about two weeks after he met behind closed doors with prosecutors and Nacchio's attorneys to discuss the classified information.

A spokesman for the U.S. attorney's office declined comment Wednesday. Nacchio's attorneys have said they will not comment on the case outside the courtroom.

Nacchio is charged with 42 counts of insider trading, accused of selling stock in 2001 based on inside knowledge that Qwest Communications International Inc. would be unable to meet revenue targets.

Each count against Nacchio carries a penalty of up to 10 years in prison and a $1 million (EUR800,000) fine. The trial is set for March 19 and is expected to last about 30 days.

At issue is whether the classified information will help explain what Nacchio might have known at the time the trades occurred.

The defense has said Nacchio was aware of classified government contracts awarded to Qwest and of plans for future government business dealings with the Denver-based company.

Qwest, the primary phone service provider in 14 mostly Western states, reported total revenue of $19.6 billion in 2001, the year of the trades in question. Of that, $322 million was attributed to federal contracts, and less than half of that came from classified contracts, according to court filings.

Nacchio also is one of several former Qwest executives accused by the Securities and Exchange Commission in a civil case alleging they orchestrated a financial fraud that forced the company to restate billions of dollars in revenue.

The Classified Information Procedures Act was enacted several decades ago to counter a strategy used by defendants charged with spying who would threaten to expose national secrets unless the charges were dropped.

It allows the attorneys and judges to review such information behind closed doors to determine if it is significant enough to be included at trial.

2006-10-25T17:02:48Z

[cboldt]

I never followed the Nacchio case closely, so without research, don't know how the judge ruled or how the case came out. I'm not of a mind to defend Nacchio, per se, for he may have been an unethical businessman. But his case is a window into government activity as well, and that the Courts are not uniform in treatment of classified information. "It depends on what the information is going to be used for."

One of Nacchio's chief defenses is that he thought the company had promise because he had information about secret national-security-related contracts that he thought Qwest would win. That material, ruled the judge, needs to remain top secret to protect national security.

Law Blog - WSJ.com : Key Rulings In Nacchio Trial

[cboldt]

The Denver Post - Joe Nacchio Trial (page with links to individual articles)

Feds add specialist in Nacchio case - 08/15/2007 [yesterday]

An attorney from the Justice Department's criminal division in Washington, D.C., has joined the government's team to handle appellate issues in the insider- trading case of former Qwest chief executive Joe Nacchio.

Appellate attorney Stephan Oestreicher, who worked on the detention case of "dirty bomb" terrorist suspect Jose Padilla, filed the government's response to Nacchio's bail appeal this week. The 26-page brief asks an appeals court to deny Nacchio's request.

Sounds as though the CIPA-related decisions (keeping secret evidence out of trial for various good and sundry reasons) have a role here, seeing as how "dirty bombers" and "insider traders" don't have much else in common.

Nacchio to appeal conviction - 08/10/2007

Issues Nacchio's attorneys have said they plan to raise during the appeal include:

• Nottingham's jury instructions on materiality, intent and good faith.
  
• Nottingham's decision to exclude defense expert testimony from professor Daniel Fischel.
  
• Their belief that evidence presented during trial was insufficient to convict Nacchio.
  
• Nottingham's rulings related to Nacchio's classified-information defense.
  

And, we see now why Nacchio wasn't called to testify in the Ninth Circuit. He was preoccupied with his own legal trouble, and might not be a good witness (convict, sentenced to prison)

[cboldt]

Judge slams door on a dazed, shaken Nacchio - 07/29/2007

Nacchio had claimed he expected to meet his projections through telecommunications contracts with secret government agencies. But his attorneys did not get to present this defense.

Will we ever see "I-Spy" defense? - 07/10/2007

Let's throw Joe Nacchio in prison before we hear his defense. ...

In pretrial court documents, Nacchio had promised what I call the "I-Spy" defense. Nacchio's lawyers argued that Qwest was due to receive top- secret government contracts that only Nacchio and a handful of others knew about. With this secret revenue, Qwest would have made its projections, Nacchio would not have gotten into all this trouble with his stock options and America would be safer.

But this revenue never came, possibly because Nacchio refused to bend over for the U.S. National Security Agency when it demanded phone records of customers after the Sept. 11 attacks. Nacchio, as has been widely reported, was perhaps the only telecom executive in America who questioned this wholesale dump of private information, and now he's paying the price for his disobedience - or so the defense goes.

As a defense to insider trading goes, a superficial take on this one sounds pretty bad. "I was counting on the revenue from the contracts that I was going to reject."

OTOH, there may have been other secret contracts that he didn't find outside the law, so perhaps the defense was reasonable. We don't know, and can't, as long as the defense is bottled up as a state secret.

[KLynn]

cboldt-

Would it not make sense at least to call the Qwest lawyers who gave interpretation on the government's NSA request to Nacchio? But the government would probably make the same defense on the information.

[KLynn]

The relationship between these cases is interesting. Funny, how the ONLY telecom CEO to "buck" the NSA ends up in legal trouble? As far as I am concerned, he is a hero and if anyone deserved a public defense fund, he did.

Looking at all these cases together makes a case for a post on the government arguements regarding NSA and evidence regarded as "state secrets".

So do we not have the right to a fair trial if the evidence that leads to a fair trial is argued as "state secrets" How does an innocent citizen fairly defend themselves against "state secrets" arguement? These are the questions our legislators should have been asking themselves in regards to FISA. If a lawyer cannot have access to state evidence against their client because of "state secrets" then how does "a citizen" get a fair trial? Do we only have the hope that a judge is fair?

[bmaz]

I don't know if Nacchio is really ready for prime time hero status. I didn't follow the matter that closely; I should have done a better job in that regard since it was happening in a state right next door and QWest has significant operations here. From what I do know, the scuttlebutt among lawyers and judges, my take is that Nacchio deserves some sympathy in that he was hammered by the government and likely because of this NSA stuff. But he did not have clean hands on the way he ran the company, so he placed himself in the position where he was vulnerable. My sense is that his claims about depending on contracts that were yanked, and that he was denied evidence on in his trial, are true; but he really was playing fast and loose with the stability of his company and the manipulations of company options as to pricing, dating and value. From what I can tell superficially, the material he was denied was probably more likely a mitigating excuse more than an actual defense. I don't know enough to be able to discern if the defense was solid enough to put in front of the jury; it does seem like valid info for mitigation at sentencing which I understand was also disallowed substantially although not totally. It is curious that Nacchio had the cojones to stand up to the Bushistas on the spying. It is admirable in one sense, but my guess is that there was more to it than principle; i.e. his refusal was a gutsy but desperate attempt to wangle additional and huge contracts out of the government (which he knew had a weakness because they were outside the law) to cover his problems with the company. Nacchio's lesson may be don't try to hose the master hosers; if you shoot at Big Dick, you better take out Big Dick.

[Mary]

cboldt - my comment went to both national security and foreign intelligence. There has never been a S. Ct case, to my knowledge, that ever equated surveillance of a US citizen on US soil by the US gov with "foreign intelligence" gathering, no matter to whom they spoke.

The only reason IMO that anyone can claim the President has any "greater" powers in the foreign intel area than in national security would be under the rubric that ONLY those with no Constitutional protections are involved in the foreign intel. Once you get to Americans on American soil, then whether the ultimate goal is foreign intel or not - those Americans are covered by Constitutional protections.

Re: the Keith case, actually - no one knows for sure whether or not there were foreign elements in the surveillance. The defendants in that case certainly had associations and contacts in Canada and it is hard to believe none of those calls involved those Canadian entities. They may have also had Mexican contacts. In any event, the problem was the surveillance of US citizens on US soil with no warrants. Gov's DEFENSE to the assertion that it had violated the Constitution was a National Security defense (basically - the same invocation of state secrets that we see here - see the AG's affidavit in that case).

But the primary feature of Keith is that it pretty much resolves the state secrets issue. IOW, when these cases are going to trial, gov is not coming in and saying "we cannot reveal what was going on because it involves foreign intelligence" but rather, "we cannot reveal what is going on for NATIONAL SECURITY reasons" That is because the only precedent setting ability of the Exec to bury its actions has been based on invocation of state secrets for national security. So you can't conflate the REASON for the surveillance (which they will argue is foreign intel and that this makes it ok to spy on US citizesn on US soil with no warrant - bc that is somehow foreign) with the ABILITY to block access to information or to block the court proceeding (which they are uniformly and consistently arguing is national security).

Saying that Gov is surveilling for foreign intel is no different than saying Gov is surveilling for criminal purposes in that it forms the basis for the "why you can do it" But nothing about surveilling for foreign intel purposes would, by itself, allow for forcing a court to dismiss a case or prevent a defendant or plaintiff's access to information about that surveillance. They way Gov is blocking that access - to courts and to info - is by asserting National Security/state secrets. Over and over.

So there are two definite components. First is - can the Exec keep what it is doing secret and out of courts? There - only if it assets State Secrets. And the Keith Case already addressed state secrets assertions to block info with respect to Exec surveillance of US citizens on US soil. It said - without a warrant, you can't do that. It did not say - you can't do it for criminal purposes, bc the warrantless surveillance in Keith was not actually being offered in the criminal case.

So Keith stands for the proposition that warrantless surveillance of US citizens on US soil by the US govt can not be done in secret, with no warrants - - even if the surveillance is not being used in a criminal prosecution and Gov cannot cover up its warrantless surveillance of a US citizen on US soil by claiming the surveillance is privileged to be kept secret because of national security.

Gov is in no difference, whatsoever, to that point when they are arguing "foreign intel" than they were arguing "domestic intel" at that point. So then they would have to come in and say - - well, ok, yes, even though we are not priviliged to spy on Americans on American soil with no warrant and keep it secret when we are spying on them talking to other Americans for national security purposes, we ARE privileged to spy on them on American soil and keep it secret when we are spying on them talking to non-Americans not on American soil for national security purposes AND - - Congress and the Courts just have to take it on faith when we say that we are only spying on them talking to non-Americans not on American soil.

They actually have to build a case, reason or rationale that the national security defense that was shot down in Keith applies differently when they argue that one person in the conversation is a non-American. That is a pretty bizarre argument. It's like saying, if you have one foreign person in your audience, you lose your freedom of speech. If you have foreign members in your church, you lose your freedom to exercise your religion. If you have some imported grey poupon in your refrigerator, you lose your right to require a warrant before gov breaks into your home and rifles through the contents of the fridge, and if have letters from a foreign person in your home you lose your right to require a warrant before the FBI breaks in and seizes them.
Actually - the correspondence issue may already have been addressed. Didn't CIA or others get into trouble for opening mail to Russia with no warrants? I'm not sure about that by any means, but it rings a bell

The Constitution gives the President powers to negotiate with foreign powers, but no where does it give the President a bye or an out from the Bill of Rights is the US citizen's actions on US soil intertwine with a foreign person.

Everytime someone points to a case involving foreign intel powers - it always is a case involving, well, foreigners.

Also on YOungstown, I don't think the court found that Truman exceeded his Consitutional powers in acting - but rather that his powers were constrained when there was legislation on point and that because his actions were in violation of the legislation, then he overstepped his separation boundaries. The case indicates that if he were acting in an area where legislation did not exist, the answer would likely be to the contrary.

With respect to foreign intelligence, certainly Congress, which must approve treaties and which makes laws affecting international trade and crime etc. all the time, has a function that is at least as strong as the titular head of state's function with respect to insuring stable relationships and laws as to how we deal with other countris. And while it has been accepted, IN THE ABSENCE OF LEGISLATION TO THE CONTRARY, that the President can engage in surveillance of foreign persons/powers - there is no case law whatsoever on the issue of Presidential powers to engage in foreign surveillance when Congress puts limits on those activities.

When the Congressional limits involve US Citizens on US soil, I think Congressional power is at its apex as well. So without regard to FISA vis a vis foreigners, FISA vis a vis US citizens is based on, imo, a very solid foundation.

When the Congressional action is supportive of separate Constitutional protections under the Bill of Rights with respect to those US citizens, then that bolsters the legislation that much more - - but apart from the legislative actions, nothing in the Bill of Rights indicates that US citizens gave the Executive the power to subrogate the Bill of Rights in instances were the US citizen interacts with non-citizens.

IMO, fwiw.

[cboldt]

The audio of the Hepting / al Haramain hearing has been available for awhile.

As to the Youngstown case and the relationship between an Act of Congress and the power of the president:

The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. ...

It is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. ...

The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. ...

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. ...

It is said that other Presidents without congressional authority have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution "in the Government of the United States, or any Department or Officer thereof."

The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.

Justice Frankfurter's concurring opinion tries to avoid the question of presidential authority under the constitution as a general matter, and instead looks at the specific EO, as against specific statutes. "The issue before us can be met, and therefore should be, without attempting to define the President's powers comprehensively." Not that I think the majority's opinion is an attempt at comprehensive definition, it is, in fact, looking at the specific EO in question.

Justice Frankfurter's opinion is framed, in the end, as a matter of Congress withholding authority from the president. "On a balance of considerations, Congress chose not to lodge this power in the President." And from whence came the power of Congress in this area? And, if Congress has full authority in this area, what constitutional authority might be left for the president (in this area)? Near the end of his opinion, Justice Frankfurter says "It is not a pleasant judicial duty to find that the President has exceeded his powers ..."

Douglas's concurring opinion is couched in terms of "The legislative nature of the action taken by the President," as in the condemnation of property, a "taking" in the constitutional sense.

If we sanctioned the present exercise of power by the President, we would be expanding Article II of the Constitution and rewriting it to suit the political conveniences of the present emergency.

And so it goes, when the action of the president, expressed in the EO, is labeled "legislation." And then we come to the concurring opinion of Justice Jackson.

His three category definition is, in each category, a comparison as between a Congressional power and an Executive power. But even in his third category, where the president acts against the will of Congress ...

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

And so, after concluding that the EO is in this third category by a process of elimination (where he agrees that Congress has the power to, but didn't legislate this specific EO; and that Congress has the general power to legislate in this area) Justice Jackson inevitably gets to the question of presidential power under the constitution, "In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress."

Not that no such space exists.

I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society.

And one of my several favorite statements by a Supreme Court Justice, as he slams Congress for abdication ...

But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can use them." We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.

The essence of our free Government is "leave to live by no man's leave, underneath the law" - to be governed by those impersonal forces which we call law. Our Government is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and
that the law be made by parliamentary deliberations.

Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.

Long story short, the president doesn't have the power under the constitution. This EO would have been unconstitutional even ABSENT legislation in the same area (even if this was a "Category 2" situation), because the president does not have the power to effect a "taking."

But with the NSA case, to the extent the president can convince a court that he is acting "outwardly," there is room between the statute, and the constitution -- presuming that the statute itself is not already operating outside of constitutional boundaries as an encroachment on the fourth branch of government ... the people and their fourth amendment right.

[cboldt]

-- There has never been a S. Ct case, to my knowledge, that ever equated surveillance of a US citizen on US soil by the US gov with "foreign intelligence" gathering, no matter to whom they spoke. --

I'm looking at Truong Dinh Hung v. US, 439 U.S. 1326 (1978) to see if it meets the criteria you've prescribed.

Oh, wait. I'm sure it doesn't, because there was a foreigner involved at the other end. But he, and his wife were in the US, the surveillance didn't involve a foreigner at the other end, etc. Well, except packages were eventually delivered to a foreigner ...

If you're carving out purely domestic relationships as not capable of meeting the "foreign intelligence" type of national security, I have to agree. It seems a rather obvious point though, hardly worth arguing over.

[cboldt]

Sorry about that bad link -- or good link, but not the right opinion. At any rate, Truong was a Vietnamese citizen too.

I think the "meat" of the decision lies in a Circuit Court opinion.

The court of appeals . . . will be asked to rule upon the government's claim of power to conduct lengthy warrantless surveillance of domestic premises ...

Excerpts from a Law Review summary of Truong is here (fair warning, it's me posting at FreeRepublic, so if you "won't go there," you've been warned)

There's another player in the case, one "Humphrey." I don't know if he was a US citizen, but it looks as though he was. Humphrey was under warrantless surveillance for an extended period of time ...

In sustaining the bulk of the surveillance, the Fourth Circuit agreed "that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance" where its primary purpose is to gather foreign intelligence ...

So, again you are right. No SCOTUS decision on point.

[bmaz]

Oh my. Can't say that I ever visited that site before. I have to say, and I do get a chuckle out of it, that your logic and linear reasoning makes you look like far more of a fish out of water at FreeRepublic than you do here, supposedly among the enemy. I only could stomach about 5 or 6 comments on each side of yours; but wow. Heh heh.