Comments on: Review of the Specter NSA Surveillance Hearing, Part One http://informedspeculation.com/2006/03/31/review-of-the-specter-nsa-surveillance-hearing-part-one/ Refunds Cheerfully Given To All Who Disagree Fri, 10 Feb 2012 06:53:00 +0000 hourly 1 http://wordpress.org/?v=3.0 By: Decision ‘08 » Blog Archive » Review of the Specter NSA Surveillance Hearing, Part Two http://informedspeculation.com/2006/03/31/review-of-the-specter-nsa-surveillance-hearing-part-one/comment-page-1/#comment-15108 Decision ‘08 » Blog Archive » Review of the Specter NSA Surveillance Hearing, Part Two Fri, 31 Mar 2006 21:02:59 +0000 http://decision08.net/2006/03/31/review-of-the-specter-nsa-surveillance-hearing-part-one/#comment-15108 [...] At present, as we have all heard here this morning, this whole area is one where there is considerable controversy and disagreement.It is not my purpose, nor do I think it appropriate, for me to allude to the politics of the subject.Recall from part one that Judge Kornblum said probable cause in the context of FISA meant probable cause that someone is an agent of a foreign power, and that squares with Keenan’s statement here. Yet Baker, above, pointed to reasonable suspicion, and explicitly said probable cause was not the right standard. If these judges who have, after all, all served on the FISA court can’t agree on this basic a point, how can FISA as currently constituted be workable? [...] [...] At present, as we have all heard here this morning, this whole area is one where there is considerable controversy and disagreement.It is not my purpose, nor do I think it appropriate, for me to allude to the politics of the subject.Recall from part one that Judge Kornblum said probable cause in the context of FISA meant probable cause that someone is an agent of a foreign power, and that squares with Keenan’s statement here. Yet Baker, above, pointed to reasonable suspicion, and explicitly said probable cause was not the right standard. If these judges who have, after all, all served on the FISA court can’t agree on this basic a point, how can FISA as currently constituted be workable? [...]

]]> By: Anonymous Liberal http://informedspeculation.com/2006/03/31/review-of-the-specter-nsa-surveillance-hearing-part-one/comment-page-1/#comment-15096 Anonymous Liberal Fri, 31 Mar 2006 18:31:46 +0000 http://decision08.net/2006/03/31/review-of-the-specter-nsa-surveillance-hearing-part-one/#comment-15096 A good post. Fair and balanced (and not in the Fox News sense of the phrase). I do think that you somewhat overstate Kornblum's assertion about the president's authority. It's undisputed that the president has inherent authority to conduct foreign intelligence surveillance. FISA only purports to set the rules for a limited subset of such intelligence gathering, i.e., the part of it that involves U.S. persons on U.S. soil. For the rest of the intelligence gathering process, the president relies on his inherent authority alone, because Congress has never chosen to legislate in that area. When Kornblum is talking about the president retaining his inherent authority and all presidents post-FISA using their inherent authority, this is what he's talking about. I don't think Kornblum was meaning to suggest that the NSA program has firm constitutional backing. Quite the opposite, actually. He said that the president is currently acting unilaterally and therefore his powers are at their "lowest ebb." In Article II jurisprudence (Youngstown and progeny) "lowest ebb" means highly likely to be found deficient. President Truman's actions were found to be at the "lowest ebb" and unconstitutional in Youngstown, and in that case Congress had not even passed a law expressly forbidding what Truman did. Rather, Congress had simply considered the matter and refused to act. In this case, Bush is doing exactly what FISA forbids. So Bush's powers are at an even lower "lowest ebb" if such a thing is possible. Long story short, I think implicit in the testimony of all these judges is the notion that the status quo is unaccepable and that Congressional authorization is necessary and desirable. A good post. Fair and balanced (and not in the Fox News sense of the phrase). I do think that you somewhat overstate Kornblum’s assertion about the president’s authority. It’s undisputed that the president has inherent authority to conduct foreign intelligence surveillance. FISA only purports to set the rules for a limited subset of such intelligence gathering, i.e., the part of it that involves U.S. persons on U.S. soil. For the rest of the intelligence gathering process, the president relies on his inherent authority alone, because Congress has never chosen to legislate in that area. When Kornblum is talking about the president retaining his inherent authority and all presidents post-FISA using their inherent authority, this is what he’s talking about.

I don’t think Kornblum was meaning to suggest that the NSA program has firm constitutional backing. Quite the opposite, actually. He said that the president is currently acting unilaterally and therefore his powers are at their “lowest ebb.” In Article II jurisprudence (Youngstown and progeny) “lowest ebb” means highly likely to be found deficient. President Truman’s actions were found to be at the “lowest ebb” and unconstitutional in Youngstown, and in that case Congress had not even passed a law expressly forbidding what Truman did. Rather, Congress had simply considered the matter and refused to act. In this case, Bush is doing exactly what FISA forbids. So Bush’s powers are at an even lower “lowest ebb” if such a thing is possible.

Long story short, I think implicit in the testimony of all these judges is the notion that the status quo is unaccepable and that Congressional authorization is necessary and desirable.

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