The Washington Post has picked up on the DeWine amendment, which was first brought to their attention by Glenn Greenwald:
Justice officials also said that even under a different standard, the process of obtaining a surveillance warrant would take longer than is necessary for the NSA to efficiently track suspected terrorists.
The DeWine amendment — first highlighted this week by Internet blogger Glenn Greenwald and widely publicized yesterday by the Project on Government Secrecy, an arm of the Federation of American Scientists — is the latest point of contention in a fierce political and legal battle over the NSA monitoring program.
Many Democrats and some Republicans, along with legal experts from both sides, have criticized the program as a clear violation of the 1978 FISA law, which makes it a crime to conduct domestic surveillance without a criminal or intelligence warrant. The administration argues that Bush acted legally under the congressional authorization to use military force against al Qaeda, and that FISA would be unconstitutional if it constrains his power as commander in chief.
While it is cool the WaPo is crediting Greenwald, Tom Maguire and Orin Kerr say not so fast. Maguire:
The DeWine Amendment only lowered the threshold for non-US persons, which would not have solved the eavesdropping problem as it related to US persons. Moreover, by re-emphasizing the protected status of US person with new legislation in 2002, the amendment might have undermined the Administration legal arguments supporting the NSA program.
Greenwald seems to assume that Baker had the complete picture and was refusing to support the Amendment because he thought it wasn’t needed, but it’s not clear to me that this is accurate.
I remain firmly planted in the middle- if they did something illegal, I will be angry, but I am so ill-informed regarding the law that I have yet to come to judgement. What would make me especially angry is that they could have simply asked congress to change the rules, and they would have. However, for now, I am not willing to take the plunge either way and will wait to see how this shakes out.
And I am still on a diet and still cranky. And you have no idea how many food commercials there are on television until you go on a diet.
Krista
Agreed. I’m a bit more skeptical in my non-commitment, though.
As far as the diet goes, don’t think of it as a diet. That implies deprivation. Just keep making decisions to eat healthfully. To nourish yourself and fuel your body with tasty, healthy food. And if you’re reaching in the cupboard for a snack, stop and ask yourself if you’re actually hungry, or if you’re just eating out of boredom or habit. If so, go do something else…hang out with Tunch, fight with Paddy, or get on that recumbent bike.
When I lost my weight, those were the three biggest things that helped me: 1) stopping and thinking before putting something in my mouth (always a good practice, really), 2) choosing healthier options whenever possible, and learning to cook them in order to maximize flavour, 3) exercising. After a hard workout, you don’t want to negate it all by eating chips. After awhile, all of that stuff became second nature, so I didn’t even feel like I was dieting — I was just eating like a person should, and moving around. It’s still a bit of a struggle…and it’s easy to slip back into old habits (especially at Christmastime!), but I know you can do it.
yet another jeff
However, if it is illegal, it seems that the best strategy for public opinion is to muddy the waters as much as possible. The splashing around on the Bush side looks purposeful…why is there no simple rebuttal to the simple question of “is it true that you can just tap anyone you want as long as you seek a warrant within 72 hours after the fact?”
Tom Maguire
However, if it is illegal, it seems that the best strategy for public opinion is to muddy the waters as much as possible.
Same is true for the Dem side – anyone can easily conjugate scenarios of illegal activities in which the NSA *might* be engaged.
why is there no simple rebuttal to the simple question of “is it true that you can just tap anyone you want as long as you seek a warrant within 72 hours after the fact?”
Gen. Hayden provided a somewhat simple rebuttal on Monday. His gist – the 72 hours is not like a free preview pass on from your cable company, where you can watch anything.
Instead, the NSA must get approval from the Attorney General to start a 72 hour tap; the NSA must provide assurance that, after 72 hours, the DoJ will be able to proceed with a conventional warrant application that has a high probability of being approved.
In other words, if the NSA has reasonable suspicion but not probable cause, they can’t listen for 72 hours hoping to hear something that will establish probable cause – they don’t have the basis for a DoJ approval, and need to let that lead go.
Or, they can do what they are doing – act on the basis of their reasonable suspicion, without a warrant. Hayden made the “hot pursuit” analogy to conventional criminal law.
My guess is that Hayeden is pretty well informed about the 72 hour rule and attendant procedures.
And on the diet – I read the most interesting thing about olive oil – it contains a natural appetite suppressant. Take a couple of teaspoons of olive oil, and some hormone that tells your body you are hungry gets switched off for hours.
It worked for me! (Well, sort of – I was trying to lose five pounds, and did. And don’t rule out the placebo effect – ya gotta believe!)
yet another jeff
I’m not questioning Gen. Hayden’s knowledge of the 72 hours, but I am a bit skeptical of his statements. Maybe it’s both the Dems and the GOP splashing around. It was kinda interesting howe that conference got a bit dicey at the end regarding probably cause.
Steve
We don’t know all the facts about what the program involved, but we do know the administration isn’t credible when they try to claim that it was nothing more than wiretapping conversations with terrorists overseas:
1) If the other end of the conversation really is a terrorist, that’s the easiest warrant application the FISA court hears all day. There is no way a court which grants 99% of all applications says no when the administration says “this person is talking to al-Qaeda, and we want to know why.” And if there’s urgency, it’s trivial for the AG to approve a wiretap on such a basis.
2) It simply defies credulity to suggest that a dozen former and current NSA officials blew the whistle to the NYT on a program that was simply listening to terrorists. That’s just not a rational assumption.
We still don’t know exactly what was bad about the program, but it would be foolish to give the administration the benefit of the doubt when they’re out there telling a story that only an idiot would believe.
Krista
John, mind if I ask how much you’re trying to lose?
Paul Wartenberg
My problems with Bush’s Domestic Wiretapping (and yes, it IS Domestic Wiretapping however you spin it up):
1) Why didn’t he just go to Congress in a closed session for security purposes and just get FISA amended to include all this? It was his party in control, it was right after 9/11 when he signed off on it, the Dems would have rolled over on it like sick puppies, etc.
2) How can we be certain the wiretapping is on legitimate targets without the oversight and confirmation of a judicial warrant?
The Other Steve
But if they asked Congress to change the rules… the terrorists would have won.
Besides, then the terrorists might have become aware that we could tap phone lines, and as a result they may have used cans with strings attached to the ends to call instead, which we can’t tap.
petersburg
Exactly. There’s no reason this administration should be given the benefit of any doubt. The argument being spun by Hayden was basically – “Trust us, we would NEVER misuse this information, we’re your friends and protectors”. And then he plainly shows his ignorance of the 4th amendment, stripping his credibility completely. I’d love to believe the government, whichever party runs it, has our best interests in mind. I’d also love world peace and a billion dollars. But reality tells you otherwise.
eileen from OH
What I don’t get (if I’m reading it correctly) is why the administration said they didn’t need the DeWine amendment and that it was probably un-constitutional. But what they’re doing now goes further than the amendment but it IS constitutional?
Re: diet. Forget calling it or thinking about it that way. I lost 25 lbs, over about 4 months by doing a couple of real simple things. Gave up beer, except for my Friday night treat. Gave up pop, including the diet crap – ESPECIALLY the diet crap. I swear the chemicals in that stuff screw up your metabolism or something. I drank slightly sweetened (with sugar) ice tea by the gallon. Tried to eat real light at lunch and popcorn was my savior for the munchies. Ate regular stuff at dinner, but smaller amounts.
Came off real slow, but I never felt deprived and have kept the weight off, even though I now drink beer and pop again (but still really watch it.)
eileen from OH
Red Guy
What was going on with Hayden’s confusion of the 4th Ammendment? The 4th does include “probable cause”. Where do these people come from? The least he could have done to prepare for the press conference was read the 4th ammendment.
petersburg
The terrorist also communicate by the child’s game “telephone”. So instead of hearing “bin laden determine to strike in the us”, we thought he was going on ‘strike’ in the us. How are we supposed to break these ultra-super-double-secret codes?
searp
I don’t suppose the administration wanted to whisper anything about how protected status for US persons was a bad thing into DeWine’s ear. Good to know we’re being protected by not being protected. Wonderful arguments. I’d like to see the Prez try that one: we’re protecting you by not protecting you from eavesdropping.
I also like the right hand doesn’t know what the left hand is doing argument of Kerr: not significant because the administration keeps secrets from its own officials so that they can misrepresent what is happening to Congress. Nice to know we’re being protected from knowledgeable officials and an informed Congress. Makes me feel safer already.
DougJ
Don’t make me come over there again, Tom.
Martin
So what’s up with the NSA “leak” investigation anyway?
Are we in a war or not???
petersburg
How can they rationalize this program with a straight face?
Excuse 1.) We got congressional authority
Excuse 2.) We don’t need congressional authority
Huh? How stupid do you think people are? I’ve read somewhere that a significant percentage of people in this country still believe the sun revolves around the earth. And they want to teach idiot design in schools. This administration is making people stupider (see what I mean).
jg
If you want to lose weight get a puppy. I lost ten pounds in a month without even trying. You’re constantly chasing them around saying don’t do that, drop it, don’t pee there that you never have time to rest or eat.
Pooh
John, Professor Kerr has updated his post in response to Marty Lederman.
A point that I think we’re missing in this discussion is that the Greenwald’s DeWine ammendment analysis is largely limited to rebutting Hayden’s last defense of, rather than the program as a whole (though if Hayden’s is their best defense, they’d be screwed in a just world. Which we manifestly don’t live in, but I’m an idealist, or at least I play one [or more] on the internet),
KarlsGrowth
“But if they asked Congress to change the rules… the terrorists would have won.”
Look at it this way. Even if the Oval Office has been bucking the system in the Terra’ war, they still can’t get it right.
Steve
Pooh, it’s true that the administration has several legal arguments, which tend to repeatedly jump up at you in whack-a-mole type fashion. The reason why Greenwald’s argument is significant, however, is it destroys the only real FACTUAL argument the administration has advanced to date.
You can argue legal matters in the alternative, but when it comes to the facts, if you get out there and say “here is why we did what we did,” you don’t get to keep trying alibis until one of them sticks.
robert lewis
Tom Maguire says:
“Instead, the NSA must get approval from the Attorney General to start a 72 hour tap; the NSA must provide assurance that, after 72 hours, the DoJ will be able to proceed with a conventional warrant application that has a high probability of being approved.”
1. Can you imagine Alberto “I-never-saw-a-torturer-I-didn’t-like” Gonzales not approving the 72 hour tap?
2. Since FISA was passed they’ve applied for 19,000 warrants and have only had five (5!) not approved. I believe that qualifies as a “high probability of being approved.”
Of more concern is the president’s moronic insistence that the law was followed. FISA says plainly that ANYONE who warrantlessly wiretaps is guilty of a felony with punishment of up to 5 years in prison and a $30,000 fine. Nowhere does the statute say “unless the president orders otherwise.” According to Bush’s logic, he can grab a 9mm, walk out on Pennsylvania Avenue, hijack an Escalade with 22″ spinners, bust a cap on the driver and walk away. It’s bullshit is what it is.
The last guy who mad ethis kind of claim was Charles I, wwhohen he told Parliament “the King can do no wrong.” Parliament straightened out Charles by disconnecting his head from his body in 1649.
Gary Farber
“What would make me especially angry is that they could have simply asked congress to change the rules, and they would have.”
Might possibly want to try that sentence again?
Incidentally, if you’re not seeing much from Blogger/Blogspot blogs today, Blogger was inaccessible for about five hours this morning, and then back again, and now it’s down again, and moreover now I can’t even access my own blog, or any other Blogspot blog, let alone Blogger to post. (In fairness to them, I’ve noticed no problems whatever for about a year. Until, again, today.)
Dave
I still don’t get why most people view this as a violation of the FISA law. The 4th amemndment is pretty freaking clear on this subject. FISA law or not, it’s obviously a violation of the 4th amendment.
p.lukasiak
I remain firmly planted in the middle- if they did something illegal, I will be angry, but I am so ill-informed regarding the law that I have yet to come to judgement. What would make me especially angry is that they could have simply asked congress to change the rules, and they would have. However, for now, I am not willing to take the plunge either way and will wait to see how this shakes out.
The FISA law is not terribly complicated… the fact that you have familiarized yourself with its provisions, and instead insist upon keeping an “open mind” (open to GOP spin and disinformation, not open to relevant facts) is pretty pathetic.
p.lukasiak
oops the above should read “…haven’t familiarized yourself with its provisions…”
Frank
Not only is it clear that Bush violated the law, and intends to keep violating it, it is clear he has violated the 4th amendment.
John Cole doesn’t care if President Bush takes away his 4th amendment rights as long as he (John Cole) can pretend that whatever Bush does is legal.
The Disenfranchised Voter
My favorite argument used by the supporters of this program is the “We are protecting your rights by violating them.” one.
That always gives me a chuckle.
It saddens me that they actually get away with saying crap like that though.
Bruce Moomaw
Maguire: “The DeWine Amendment only lowered the threshold for non-US persons, which would not have solved the eavesdropping problem as it related to US persons. Moreover, by re-emphasizing the protected status of US persons with new legislation in 2002, the amendment might have undermined the Administration’s legal arguments supporting the NSA program.”
Ah. So the Administration told Congress that it preferred privacy protection rules stronger than those in the DeWine Amendment for non-citizens — and still stronger for US citizens — in order to deceive Congress while it secretly carried out eavesdropping of both. Now, THAT’S the kind of government you want in charge.
Bruce Moomaw
Orin Kerr: “Greenwald seems to assume that Baker had the complete picture and was refusing to support the Amendment because he thought it wasn’t needed, but it’s not clear to me that this is accurate.”
Ah. So the Administration was deliberately leaving its own Justice Department’s legal counsel on intelligence policy in the dark as to it was really up to in that regard.
And these are what are being peddled nowadays as DEFENCES of this administration.
Devil's Advocate
If the wiretapping was so legal, why did the White House ask the NYT to not publish the story in November 2004? Why did Bush ask the owner and the editor of the NYT to the White House and again tried to have them suppress the story in early January 2006?
Where there is smoke, there is fire.
I am not trained as an attorney either, but when I read that warrants can be obtained retroactively, that the FISA court grants 99.99% of the warrants, I am forced to wonder why on earth Bush felt the need to break the law. Even if he felt that the current FISA process was cumbersome (sic), he could have asked Congress and/or the courts to amend it.
Also, since there are no reasons to believe that there are no terrorist sleeping cells in the U.S. communicating with one another on U.S. territory, why should we believe that the NSA was NOT monitoring domestic calls?
I know that the Bush administration is abysmally incompetent, but I defy anyone to tell me that they did not think of the fact that terrorists, say in Washington state, do not communicate with terrorists, say in New Jersey.
The truth of the matter is that Bush and his cohorts did not respect the law because, clearly, they think they are above it.
GWB is a tinpot dictator, and as long as his fear-mongering tactics keep people wetting their pants, he will do anything he wants whenever he wants.
Wake up America! The Republicans may be in power now, but they won’t be always. The day they are no longer in power, they will scream like banshees about the curtailment of civil liberties that happened during their reign.
What goes around comes around.
Sine.Qua.Non
John: Take from a person who has been on every diet under the sun. Eat slowly and your tummy has a chance to catch up with your brain and signal you are full. Stop eating what you have on your plate when you get that signal. You will shed lbs. slowly but surely, the best way of all, healthwise. You also deny yourself nothing this way – eat the foods you want to eat, not what some diet prescribes. Drink lots of water, in fact drink a glass of water before you sit down for a meal. That is all. Next thing you know, you are a size smaller and it didn’t stress you out and you never felt you were dieting in the first place. This becomes habit and then you learn to moderate quanities and not supersize the McDonald’s way.
For what it’s worth, it’s the only way I can lose weight and keep it off and it is completely stress-free.
The Raven
Keeping an open mind? John Cole, this isn’t the time to give George “Douchebag” Bush the benefit of the doubt. He authorized spying without a warrant.
If you read the Fourth Ammendment, it’s easy to spot the requirement for warrants, but in the 1990s we saw a fairly broad loosening of interpretation the resulted in the courts granting approval for “warrantless” searches. These were almost always pursuant to drug violations and “hot pursuit” activities, however.
Here’s a comment on what the 4th Amendment protects, from CaseLaw.org:
The test propounded in Katz is whether there is an expectation of privacy upon which one may “justifiably” rely. 36 “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” 37 That is, the “capacity to claim the protection of the Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was reasonable expectation of freedom from governmental intrusion.” 38
That’s why Bush needs to be impeached, and impeached very hard over this matter. As Americans, we have a right to be free from governmental intrusion as we go about our business. Yes, there are terrorists, and there have always been enemies of our country. But their existence does not diminish our rights because our civil liberties are not contingent upon the ideology and objectives of any third parties.
Our rights are most specifically not subject to curtailment upon the whim of a self-appointed monarch or dictator like George “Douchebag” Bush. The man is more of a threat and an enemy to the American people and our way of life than anything we’ve experienced since WWII. Worst president, ever.
Robert
Why are we waiting to impeach this guy.
Is it because we have too many instances to use as cause?
DDA
The current legal argument put forth by the White House and AG Gonzales for warrantless domestic wiretaps and dispensing with FISA/FISC has been his authority as commander in chief and that Congress somehow implicitly gave him that power when it authorized the use of force (AUMF) against those who attacked the United States on 9/11; a statement without any legal or principled authority.
Of course, last year Gonzales didn’t use that justification last spring:
Of course, the White House knew FISA didn’t authorize warrantless wiretapping because Gonzales said that the White House had considered asking Congress to pass new legislation that would explicitly permit those activities but he also confessed that the administration had abandoned the idea of new legislation because getting a bill through Congress “would be difficult if not impossible.”
Nevertheless, Gonzales is still pounding the AUMF authorization theory and arguing the difficulty of getting a warrant is compounded by, get this, himself.
Now this justification is again undermined with the news of the proposed legislation by Sen. Mike DeWine and comments at the time by James A. Baker, the Justice Department’s counsel for intelligence policy.
The law clearly states that the criminal wiretap statute and FISA are “the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance.
Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.
1) Without justifying “exigent circumstances” or it’s progeny on each case of wire-tapping of an American citizen, then it’s a violation of the 4th Amendment. “Hot pursuit” is a literal term and not a metaphor.
2) That FISA does not authorize the actions at issue taken by Bush and therefore those actions are illegal.
3) That the War Resolutions Act did not “amend” FISA and does not allow wholesale warrantless wiretapping.
Clue to the correctness of this statement: If it did, then why did AG Gonzales make above statement?
4) That there is no authority for the US Government to wiretap US citizens without respecting the law, Constitution and the separation of powers.
Article II authority is what his advisors are using as a back-up when the AUMF arguement falls apart: the powers as Commander in Chief and, to a lesser extent, the implied powers of the executive.
But it’s not going to fly legally under Youngstown (Truman’s seizure of steel mills) or Hamdi (unanimous requirement of due process for enemy combatants) and 2) “they” know that because they are arguing inconsistent positions as I have already point out
Separation of powers is precisely at issue here. Presidential Authority vs Congressional Law. Youngstown Sheet & Tube Co. v. Sawyer, 343 US 937 (1952) is clearly the controlling case in this issue (as well as US vs US District Court.)
So when Bush said this last year,
what do you think he meant?