Another NSA Case Goes to Court

The NY Times reports on another NSA lawsuit, this one from the Center for Constitutional Rights, that went to court in Manhattan yesterday. The judge in this case seems to be taking a more careful approach than Judge Taylor in the previous case, but a lot of what went on yesterday is fascinating. As in the previous case, the questions of standing and the state secrets privilege were prominent in the arguments. More interesting to me are two other elements. The first is that the government seems to be changing its argument with regard to FISA. I'll begin a long quote below the fold:

In a move that surprised Judge Lynch and lawyers who have been following the debate over the surveillance program, a government lawyer seemed to shift tactics to bring one more legal question within the scope of the privilege.

It has been widely assumed that the government has acknowledged that the surveillance program violates the Foreign Intelligence Surveillance Act, a 1978 law that requires the government to obtain a warrant from a secret court before wiretapping the international communications of Americans for national security purposes.

"We don't agree," the lawyer, Anthony J. Coppolino, said, "that the government has specifically conceded that point." He added that the question could not be answered without endangering national security.

Statements from government officials that seemed to make the concession, Mr. Coppolino said, "may not be fully complete, as they have all indicated."

Judge Lynch was taken aback by the shift in tactics. "This is the first time," he said, "that I have understood that the government is taking the position that it is a contested issue whether this violates FISA."

Judge Lynch said he did not recall anything in the government's briefs on this argument. Mr. Coppolino was unable to provide a citation.

The government's previous arguments in this regard, stated by the attorney general in testimony before Congress, have been twofold:

A. The Authorization to Use Military Force superceded FISA and gives the President the authority to do whatever is necessary to stop terrorism (a patently absurd argument that the Supreme Court rejected flatly, including Justice Scalia); and,

B. The President has inherent authority under the constitution as commander in chief to take those actions, meaning that his constitutional authority trumps statutory laws.

Both of those arguments, of course, are an admission that the program is in violation of FISA. And of course, the government has admitted that the program involves warrantless wiretaps, something FISA forbids. So this argument that they're not necessarily admitting that the program violates FISA appears to be a baldfaced lie an I'm not surprised that the judge was surprised by it. The government is changing positions completely. And the claim that he state secrets privilege prevents the court from deciding whether FISA has been violated is utter nonsense - once you've admitted that the program involves warrantless wiretaps of American citizens, that's all that is necessary to determine whether it violates FISA. Everything else is purely legal argument, not fact-specific argument.

The second thing I thought was interested was that the judge seemed to challenge the meat of the government's claim of inherent authority. In essense, they are arguing that the President has inherent authority to do anything he deems necessary to protect national security, including violate any other provision of the Constitution that he deems an unreasonable restriction. The best example of this is the Hamdi case, where the DOJ argued that the president had the right to suspend habeas corpus in specific cases, despite the fact that the Constitution clearly says that habeas corpus can only be suspended by Congress and only then in times of invasion or rebellion. Again, the Supreme Court smacked him down hard on that matter, with even Scalia delivering a blistering opinion blasting that absurd argument.

Judge Lynch, in this case, asked many questions about their claim of inherent authority, trying to plumb the outer limits. The answer from the government in this case was, as Gonzalez answered in front of Congress a few months ago, essentially that there are no limits to it:

Judge Lynch appeared troubled by Mr. Coppolino's argument that the president's inherent constitutional power was enough to override Congressional enactments like the Foreign Intelligence Surveillance Act.

The judge also discounted the argument that a 2001 Congressional authorization to use military force granted the president the power to violate the surveillance act. "I'm not too impressed by that one," he said.

Judge Lynch pressed Mr. Coppolino with a series of questions on the limits of presidential power in the face of Congressional prohibitions.

"So he can build a B-1 bomber if he wants to?" the judge asked. "If the president feels it necessary to break into a psychiatrist's office to find out what Al Qaeda is up to, he can do that?"

Mr. Coppolino did not offer direct responses to those questions, but he was willing to say that the executive branch was sometimes entitled to take extraordinary steps. Asked if an American lawyer who had communicated with Al Qaeda could be grabbed on the street and interrogated about it, Mr. Coppolino responded, "I would say it is possible, depending on the scenario that is at stake."

Bush's argument here has been very consistent: I can do anything I feel is necessary even if it violates either statutory or constitutional law, and not only can you not stop me from doing it, you can't even bring a case before the courts because the state secrets privilege denies them the authority to hear it. As I've said before, it's a perfect mobius strip of logic, forming a force field around everything the President does and rendering him immune to constitutional challenge. Is it really possible that the STACLU crowd can't recognize how dangerous that is and how corrosive it is for our entire constitutional system?

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If this were President Hilary Clinton or President Al Gore, etc. they certainly would.

Obviously, what this administration has done is unconstitutional, and I think that eventually it will be recognized as such and put to an end. Unfortunately, this is kind of like pulling on a spring. Our rights will snap back, but not to the exact same place as before. Each time the spring gets stretched it looses a little bit of its elasticity, and eventually it becomes worthless.

Although I'm not holding my breath, this fall's elections may furnish some relief, provided the democrats can gain control of at least one house (two would be better). I'ma life long Republican but after watching the last four years under Bush and the Congressional Republicans the best government is the one that's hog tied with the executive and legislative branches controlled by different parties. If nothing gets done, except come badly over due oversight, we'll all be better off. Neither party seems to have the capacity for any self control. Each includes an army of political addicts for whom self-restraint is impossible. Give them the rope to do as they please, and they do, to the detriment of the country and world. God (figuratively speaking), how we need a monkey wrench thrown between the gears of government.

Well, you've got to give the government some credit. Their argument is better than shouting "Look over there!" and bounding out of the room.

But not by much.

It seems that the Bush administration is going to rely wholly on the "state secrets" defense. Basically the idea is that they're going to do whatever they want to do, claim innocence in court and say that no trial could possibly take place since any kind of substantial inquiries into exactly what they are doing would somehow constitute a breach of national security.

I'm still waiting for concrete proof that they won't get away with this. The last several years have seen this crowd get away with all sorts of things that I had previously assumed would never be tolerated in the country I had previously thought the US was.

I'm still waiting for concrete proof that they won't get away with this.

I think the odds are pretty good that they will get away with this, whatever this is.

They may in fact be operating in good faith on many of these issues but they're really, really bad on some of the details and they're being caught more often because of internet babble and political preening.

My view is that both Democrats and Republicans have felt that FISA and other tools have not kept pace with technology -- at least operationally (which is why you see Democrats bending over backward to modernize FISA). The fact that Clin-ton supported FISA does not negate his intrusions into citizen encryption, omnivore, carnivore, DCS1000, surveillance through commodity products, policeware, ECHELON and so on.

This analysis given to congress a few months ago by Kim Taipale sort of lays out the logic and justification that could be used, and I think that they may be parsing it so that capturing data in an automated fashion where no one physically listens to the data-in-transit may fall into the confusion of "If a tree falls and no one hears it does it make a sound." No human may be listening until the automated system overseas spits out a number to take to FISA. Or not to FISA, but to overseas personnel for operational use.

Secondly, I think their justification may be that they don't monitor with a primary intent of criminal prosecution but for safety, such as warrantless intrusions to conduct safety inspections in a workplace although that's usually codified. They cite Katz in what I read as a safety argument.

The hardest thing to swallow these days is the NEOCON facists blecching out the works "Islamic Facists." Most Americans don't even know what the word facist means, so many people are buying it, that is those that have bought the bullshit they are selling. Further members of the Bush administration likening dissent to those who empowered Hitler. Kettle black is all I can say.