Responding To Greenwald – Again

There’s been a lot of back and forth between blogs on the right and Glenn Greenwald lately, partly because, much to his credit, he’s one of the few leftie bloggers who will engage in substantive debates and link back to the blogs he’s criticizing, and partly because he’s been doing good work on the NSA surveillance issue. His latest post has come recommended to me by at least two commenters, and he has made what is possibly a very significant find of an administrative position re: probable cause and FISA.

Well, I’m not an attorney, but I’ve made it clear that I’m not convinced that the NSA program was legal; we know, however, that the administration argument is that FISA does not even apply here; instead, the authorization is that provided by the president, using his interpretation of the AUMF (and just because you don’t agree with the president doesn’t make him incorrect – there is a lawsuit working from the ACLU, so hopefully, the legality will be determined definitively by the courts at some point). From yesterday’s Q & A with Hayden:

On FISA and the 72 hours:QUESTION: General Hayden, the FISA law says that the NSA can do intercepts as long as you go to the court within 72 hours to get a warrant. I understood you to say that you are aggressively using FISA but selectively doing so. Why are you not able to go to FISA as the law requires in all cases? And if the law is outdated, why haven’t you asked Congress to update it?

GEN. HAYDEN: Lots of questions contained there. Let me try them one at a time.

First of all, I need to get a statement of fact out here, all right? NSA cannot — under the FISA statute, NSA cannot put someone on coverage and go ahead and play for 72 hours while it gets a note saying it was okay. All right? The attorney general is the one who approves emergency FISA coverage, and the attorney general’s standard for approving FISA coverage is a body of evidence equal to that which he would present to the court. So it’s not like you can throw it on for 72 hours.

I’ve talked in other circumstances — I’ve talked this morning — about how we’ve made very aggressive use of FISA. If you look at NSA reporting under this program — you know, without giving you the X or Y axis on the graph — NSA reporting under this program has been substantial but consistent. This is NSA counterterrorism reporting. Substantial but consistent. NSA reporting under FISA has gone like that. FISA has been a remarkably successful tool. We use it very aggressively.

In the instances where this program applies, FISA does not give us the operational effect that the authorities that the president has given us give us. Look. I can’t — and I understand it’s going to be an incomplete answer, and I can’t give you all the fine print as to why, but let me just kind of reverse the answer just a bit. If FISA worked just as well, why wouldn’t I use FISA? To save typing? No. There is an operational impact here, and I have two paths in front of me, both of them lawful, one FISA, one the presidential — the president’s authorization. And we go down this path because our operational judgment is it is much more effective. So we do it for that reason. I think I’ve got — I think I’ve covered all the ones you raised.

If Hayden is saying that FISA is not operative for those wiretaps authorized by the president, then doesn’t that make Greenwald’s discovery a lot less explosive than it’s being played up to be?

Greenwald makes much of the administration’s lack of support for introduced legislation by Mike Dewine that would have lowered the probable cause standard for FISA – but as Hayden says, the administration used FISA aggressively and continues to do so, but those uses are seperate from the President’s program. Why lobby to change FISA to cover situations that you have been assured are covered by other, legal authorization? (And remember, it is not the job of Michael Hayden to determine legality – he asked for, and received, numerous opinions from legal counsel that the program was legal). In other words, probable cause is a sufficient standard for eavesdropping covered under FISA – and that’s not at all what we’re talking about here.

The president’s program, we are now led to believe, targets communications between known or suspected al Qaeda operatives and people in the U.S., including American citizens. It is conducted under presidential authority, and the president clearly believes he has been given that authority. Mr. Greenwald and others can and will make persuasive cases that the belief is mistaken, but this seeming contradiction regarding the Dewine legislation is only a contradiction if you buy the notion that the communications in question were authorized by FISA and not by presidential authority.

Let me stress one more time: I am not arguing that the administration’s position is the correct one; nor am I questioning the merits of alternative interpretations such as that of Greenwald (and as I stated, though I may not agree with his conclusions, he is doing fine work on this story and getting a completely just amount of attention for it). I am merely arguing that Glenn’s latest discovery, while quite interesting, is not the glaring contradiction it is made out to be if one examines the assumptions underlying the administration’s position, regardless of the correctness of those assumptions.

UPDATE 11:34 a.m.: Related, from the AG Speech yesterday:

We do not have to decide whether, when we are at war and there is a vital need for the terrorist surveillance program, FISA unconstitutionally encroaches – or places an unconstitutional constraint upon – the President’s Article II powers. We can avoid that tough question because Congress gave the President the Force Resolution, and that statute removes any possible tension between what Congress said in 1978 in FISA and the President’s constitutional authority today.

68 comments to Responding To Greenwald – Again

  • RobertP

    I guess not. I was under the impression that you thought what he was doing was legal based on FISA – which covers spying. If you agree that is illegal, then we are on the same page. Also, since the President asked for increased power to wiretap inside the U.S., under the resolution authorizing force in Afghanistan, but was turned down, we can safely assume that his actions are illegal in that regard. So, all in all, it looks like we agree. FISA does not permit domestic wiretapping; Congress held back on allowing domestic wiretapping under the Afghanistan resolution; therefore, if the NSA is spying on Americans they are breaking the law.
    BTW, it appears that FISA requires very little information, but I would appreciate your take

  • RobertP, before I read your link, a quick point – I don’t know whether it was legal or not, and that’s why I welcome the ACLU lawsuit. I do know that the Administration has put most of their eggs, it seems, in the AUMF basket, and that, as tortured as this logic may sound, the fact that Congress did not realize they authorized the program doesn’t mean they didn’t…laws are tricky that way. I’m reminded of Robert Moses, as told in the Power Broker, one of the great books I’ve ever read, who was a master at exploiting perhaps unintended legislative openings…

  • RobertP, the Kos article makes the assumption, it appears to me, that we are talking about the data-mining program with its repeated references to fishing expeditions. We know now that Bush’s program was a limited, targeted effort, probably in the realm of conventional wiretaps, with known or suspected al Qaeda folks on one end, and U.S. folks on the other (thus not a FISA thing). Now, the data-mining program appears to have been authorized by Michael Hayden at the NSA to parse down what was an overwhelming amount of data being furnished to the FBI post-9/11…two different programs…

  • Owen

    I just spent about forty-five minutes reading through all of this, and I want to second the positive responses that were sprinkled throughout it. I’d love to have a great comment here, but there’s so much to process. I’m just really impressed with the debate you guys have put together and I wish that other sites worked like this more often. Kudos!

  • Thanks, Owen, and all the other folks who have had kind words to say…I’m a partisan Republican, and I don’t hide it…but we try to lift to debate here above the level of ‘did the see the latest crazy thing those nutcase liberals did?’…not always successfully, but we try…and some of my best regular commenters come from the left, as well…

  • “Mr. Greenwald and others can and will make persuasive cases that the belief is mistaken, but this seeming contradiction regarding the Dewine legislation is only a contradiction if you buy the notion that the communications in question were authorized by FISA and not by presidential authority.”

    Interesting, let me give you another one: this seeming contradiction regarding the McCain amendment is only a contradiction if you buy the notion that the torture in question falls under the Fifth, Eighth, and Fourteenth Amendments to the Constitution and not under presidential authority.

    So this whole debate is closely related to the Presidential signing statement issue. To wit: “‘If you take this to its logical conclusion, because during war the commander in chief has an obligation to protect us, any statute on the books could be summarily waived,’ said Sen. Lindsey Graham, R-S.C.”

    Your argument, Mark, seems to mean that Congress can legislate all it wants, including on the domestic surveillance of Americans, and the President can do whatever he wants without meaningful oversight. You seem to think that questions of legality can be resolved by an ACLU lawsuit taken to the Supreme Court, that the separation of powers will be maintained there. But there would be no lawsuit if the New York Times hadn’t broken the story; wouldn’t the ACLU have filed this lawsuit years ago if it had known?

    This seems to me like a blank check to the President to do what he wants to fight the war on terror, as long as no one finds out about it, then to hide behind the fig leaf of war powers to fight an undeclared war if he is discovered. Why do we need a lawsuit to condemn this specious legal reasoning?

  • And this is almost too much, from that Presidential signing statement article:

    “In 2003, lawmakers tried to get a handle on Bush’s use of signing statements by passing a Justice Department spending bill that required the department to inform Congress whenever the administration decided to ignore a legislative provision on constitutional grounds.

    Bush signed the bill, but issued a statement asserting his right to ignore the notification requirement.”

    Get it?

  • Not a blank check, Dan…we’re talking Signals Intelligence here, a well-established complement to battlefield operations…and further, we’re told (I know, the obvious retort is we’re being lied to, but the best we have to go on is what we know) that the communications in question have a known or suspected al Qaeda suspect on one end of the line…

    Now, we’ve got upcoming Congressional hearings, which can go into secret session if need be to discuss details, we’ve got a lawsuit, we’ve got news outlets, we’ve got partisans like you and me…how many of these things would be true if we were really living under some autocratic police state? I’ll tell you what happens if you criticize Vladimar Putin too persistently – you get thrown in jail, even if you’re one of the biggest businessmen in Russia.

    That sort of thing isn’t happening here…so let’s not go overboard here. Is this an important issue? Of course…but let’s remember the purpose and the targets…and yes, by all means, let’s let the legal system function as it is supposed to – by weighing, as impartially as is possible, two conflicting interpretations of this issue…

  • Christine

    I understand the argument that so and so did it in this war or that, but the FISA was passed AFTER those wars. Why would the AG bring that up? And I would also like to know who the AG is supposed to represent. I thought he was the one who is supposed to investigate the administration if there was any wrong doing. He seems to be acting as their private attorney. Where the hell are the people who are supposed to represent us?

  • Christine, from the Department of Justice website:

    The Attorney General is responsible for the overall supervision and direction of the administration and operation of the Department. The Attorney General represents the United States in legal matters generally and furnishes advice and opinions on legal matters to the President, the Cabinet, heads of the executive departments, and other agencies of the Federal Government. Records maintained include those relating to the administration of the office.

    You may disagree with him (clearly you do), but the man is only doing his job…

  • peter

    It’s a pity that Gonzales doesn’t meet the same standards as Eliot Richardson, who resigned his post as AG rather than support Nixon is his illegal use of wiretaps and surveillance…

  • peter, how so? Gonzales is arguing that the program is legal, and that is the advice he gave Bush…it would certainly be odd to opine that something is completely legal, and then resign for that reason…

  • “the communications in question have a known or suspected al Qaeda suspect on one end of the line”

    Al-Qaeda on the line? That’s probable cause, right? Sounds like it should be easy to get a FISA warrant. So again, why not use FISA?

    “we’re talking Signals Intelligence here, a well-established complement to battlefield operations”

    It is quite scary to imply that America is a battlefield in any but a weak metaphorical sense. War is peace, right? I am unaware of battlefield operations underway in America, so perhaps you could provide a reference. I understand Jose Padilla recently changed custody so the Administration wouldn’t have to make this argument in front of the Supreme Court.

    “Now, we’ve got upcoming Congressional hearings, which can go into secret session if need be to discuss details, we’ve got a lawsuit, we’ve got news outlets, we’ve got partisans like you and me…how many of these things would be true if we were really living under some autocratic police state? I’ll tell you what happens if you criticize Vladimar Putin too persistently – you get thrown in jail, even if you’re one of the biggest businessmen in Russia.”

    The distance between what Putin did and what Bush can do is smaller than you think. Imagine what would happen if X-Democrat-Billionaire was declared an enemy combatant. That’s right, he’d go to Guantanamo like the rest of them.

    Like Sen. Graham, R-S.C., said, can’t you just waive any statute on the books? You could kill a Muslim prisoner with a hammer or expose yourself during the State of the Union address. To distract and discourage our terrorist enemies, of course.

    That last little rider, that “of course”, is what we are arguing about, right? At some point, we have to say that the President’s authority is not as expansive as he makes it out to be. I use the extreme examples not to be offensive, but to point out that under your theory of Presidential power (and, I’m convinced, George W. Bush’s), if Bush says it’s for the War on Terror, then it is.

    And let me add that “well, sure, it’s bad, but at least it’s not a police state… yet” is not a terribly persuasive argument.

    What is the Congress? What is the legislative power? What is the Constitution? The way I see it, your dueling interpretation is deeply linked to “Bush giveth and Bush taketh away.” So what gives? Can the President torture prisoners in defiance of a quite explicit law passed by Congress?

  • Dan, I refer you to my newest post on why not FISA? – it’s the wrong question. The question is, why not address the authorities the president has claimed, rather than those that he says with his own mouth he is not relying on?

    As to American as a battlefield, well, surely you remember that day when war came to our shores? It would be difficult to forget…

    (Btw, Bush explicity, umambigiously said torture is not and will not be permitted in his press conference today)…

    Read on, if you please…

  • peter

    Mark: Eliot Richardson thought independently, decided that he was being asked to do something unconstitutional, and he resigned rather than do it. Perhaps I don’t give Gonzales enough credit – maybe he really thinks that what Bush did is OK – but my suspicion is that he is a lawyer being a hired gun for his clien, rather than a principled Attorney General who swore to preserve and protect the Constitution. Apparently, even John Ashcroft has problems with the NSA program – that should tell you something.

    For what it’s worth, I spoke with our General Counsel today, who studied national security law at Yale (and is a rock-ribbed Republican). He thinks the NSA program is “deeply troubling” and thinks that Bush’s expansive definition of executive powers is well beyond any reasonable interpretation of the Constitution.

  • Christine

    Thanks Mark. I had it wrong. I must of been thinking of another position. Great blog! Keep up the good work.

  • Hey, thanks for coming by…it was fun to see so many new faces…hope you’ll grace us with your presence more often…

  • [...] In a typically classless move, the Times appropriates the ‘Greenwald Dewine Postulate’ without proper credit, as well: In 2002, a Republican senator — Mike DeWine of Ohio — introduced a bill that would have …[lowered] the standard for issuing a warrant from probable cause to “reasonable suspicion” for a “non-United States person.” But the Justice Department opposed it, saying the change raised “both significant legal and practical issues” and may have been unconstitutional. Now, the president and Attorney General Alberto Gonzales are telling Americans that reasonable suspicion is a perfectly fine standard for spying on Americans as well as non-Americans — and they are the sole judges of what is reasonable. [...]

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