Defending Gore

Jeff Goldstein at Protein Wisdom has decided to address Gore's speech given in DC today on FISA and executive power.  Below, I respond to his post (his comments in blockquotes):

Quickly:  Gore argues that a) “the president ‘repeatedly and persistently’ broke the law by eavesdropping on Americans without court approval”—which is nothing more than an assertion, and assertion meant soley to taint the public’s perception of the program.  Where is the proof of this lawbreaking?  The answer is, there is none—and in fact, the President and Gen Hayden (along with those familiar with the program interviewed by the NYT) have asserted repeatedly that in these kinds of situation (Gore and his ideological fellow travelers frame this as “eavesdropping on American citizens,” while Bush and the administration frame it as “listening in on phone calls eminating from known al Qaeda nodes") FISA warrants were obtained, FISA statutes were deferred to, and fourth amendment and due process obligations met.

Gore makes it clear that he can't prove this accusation definitely, because we aren't certain that any of the mandates of the secret executive order have been carried out.  But if the secret executive order has been instantiated in any way, then the law has been broken.  As Gore said:

At present, we still have much to learn about the NSA's domestic surveillance. What we do know about this pervasive wiretapping virtually compels the conclusion that the President of the United States has been breaking the law repeatedly and persistently.

(By breaking the law, both Gore and I mean disregarding the mandates in FISA.  And yes, you will likely say that is isn't correct based on the AUMF argument.  Putting aside that for the moment, I would argue that the FISA mandates are still law until changed by the legislature or overturned by the judiciary.)

As to the second point in your paragraph, yes, there were times that FISA rules were followed even after the once-secret executive order.  And there were also verly likely times that FISA rules were not followed, based on the once-secret executive order.  Gore (and many of us) are concerned about the legality of the times that those rules weren't followed.

Most interestingly to me, however, is the way the Bushies continue to allow this story to play; the constitutionality of FISA under current conditions is, in my opinion (and following “inherent authority” and separation of powers “precedence” under war-time conditions)—dubious at best, and illegal at worst.  In fact, FISA as it is now being deployed, is a prime example of a separation of powers battle between those who don’t truly believe in coequal branches of government, but would rather see—even in war time—the legislative branch able to control the tactical and strategic aspects of waging war; that is, they wish to have War Powers control over the President that exceeds the budgetary and other powers granted them by the Constitution (unless, that is, say, Clinton/Gore happen to be in power; but again—incidental, I’m sure).

FISA is not "the legislative branch able to control the tactical and strategic aspects of waging war".  This is a case of balancing the right of the government to collect foreign intelligence and the right of the American citizen to privacy.  American citizens have privacy rights (see the 4th amendment).  The executive has the right to gather foreign intelligence.  But the executive doesn't have the right toarbitrarily eavesdrop on citizens.  There must be some sort of cause to allow for eavesdropping on citizens  (which, btw, is substantially lower in the FISA courts than what is necessary in a domestic, criminal investigation).  So a FISA court has to authorize the executive to eavesdrop on an American person.  If there's no FISA restriction, then the executive has unfettered power to violate any citizen's privacy rights by just saying "national security".  My apologies for the basic FISA primer, but it seems to be necessary if you think that FISA is an example of controlling "tactical and strategic aspects of waging war".  Congress isn't moving pieces around on a Risk board, they're balancing the right of the executive to gather intelligence with the right of citizens to privacy.

Forget for the moment that FISA was not, as I’ve pointed out by linking to its legislative history, or citing Carter’s own Griffin Bell, ever meant to constrain NSA foreign intel work, nor to constrain the President’ mandate to protect the country from an internal and potentially imment threat.

FISA has provisions for if we are at war.  And oddly enough, it doesn't say anything like "this statute is totally null and void if we're, like, at war or under threat, existential or internal, or something".  Something to consider during the incessant cries of "OMG!1!!!1  WE ARE AT WAR!!! FISA is teh suck!"

arguing—as did Tom Daschle, in one of the biggest political blunders I can remember—that the Congress never granted the President the military authority, under AUMF, to protect the homeland (say, New York City) after 911, so “concerned” were they that acquiring interecepts of al Qaeda connected calls into and out of the country could, under some very strained and dubious readings of domestic criminal law, be construed as potentially violating the fourth amendent rights of those connected in some way (even accidentally) to al Qaeda.

In short, Daschle reminded us that Congress gave the President the authority to launch hellfire missile from drones at Taliban safehouses, but they it did not give him the authority to listen in on coversations about who might be in those safehouses, should one end of those conversations cross into the US (or, even more ludicrously, cross through US switches).

This is the Democratic argument.

Blunder?  The White House claimed that the AUMF implicity was the statutory authority to put aside certain FISA regulations.  Daschle said that they asked for that ability as part of the AUMF and was denied, thus shooting down a central administration argument that Congress implicitly allowed this.  He called the administration on their weak argument.  And that's a blunder?

Though your point is probably that, by making this point, Daschle is saying that he didn't want to give the President the "authority to listen in on coversations about who might be in those safehouses".  But we have had that ability before the secret executive order, and it's clear that FISA doesn't stop the President from being able to listen to Al Qaeda.  Again, a serious discussion of what is actually gained by loosening FISA restrictions is important (I won't go into it in this post, but previously discussed it here).

Gore further argued that, b) this anti-terrorism program of NSA foreign intel gathering—which has been a staple of US military intel work for decades—is “a threat to the very structure of our government”—a pronouncement that rivals Daschle’s for political tone deafness.

So wait....Gore is saying that parts of foreign intelligence gathering that have been a staple of intel work for decades is "a threat to the very structure of our government"?  Really?  Here is what Gore said:

A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution - our system of checks and balances - was designed with a central purpose of ensuring that it would govern through the rule of law.

It's easy to criticize what Gore didn't say, or even imply.  He obviously was talking about the President deciding to ignore FISA, not about intelligence gathering.  He is clearly not saying that "foreign intel gathering that has to rely on picking up one end of the conversation in the US...is a threat to the very structure of our government".

Gore goes on to contend that “the administration acted without congressional authority and made a ‘direct assault’ on a special federal court that authorizes requests to eavesdrop on Americans”—yet another bit of obfuscation and dishonest misdirection.  The administration’s congressional authority comes from the AUMF, which passed congress

See the Daschle comments, mentioned before re: the AUMF implicit authority argument.  And I'll add some of Gore's comments from the speech:

This argument just does not hold any water. Without getting into the legal intricacies, it faces a number of embarrassing facts. First, another admission by the Attorney General: he concedes that the Administration knew that the NSA project was prohibited by existing law and that they consulted with some members of Congress about changing the statute. Gonzalez says that they were told this probably would not be possible. So how can they now argue that the Authorization for the Use of Military Force somehow implicitly authorized it all along? Second, when the Authorization was being debated, the Administration did in fact seek to have language inserted in it that would have authorized them to use military force domestically - and the Congress did not agree. Senator Ted Stevens and Representative Jim McGovern, among others, made statements during the Authorization debate clearly restating that that Authorization did not operate domestically.

There's some more stuff that I don't have the time to comment on, and then you end with the GOP talking points that try and push the canard that if someone has respect for 4th amendment privacy rights and respects current law that is an attempt to balance the rights of the executive to gather foreign intelligence with the rights of the citizen, they aren't serious about terrorism.  There's nothing further from the truth, but that the current spin that's being pushed by yourself and the GOP.

Comments

[Jason Coleman]

Gore bitching about this is another case of having cake and eating it too.

ECHELON anyone? How bout CARNIVORE?

Facts are facts, the conversations originated from overseas (unlike ECHELON and CARNIVORE intercepts delivered to Reno under Clinton) from identified possible terrorist cellphones. So A) they're "electronic intercepts", which satisfies most legal arguments and B) I'm damn happy the government is trying to catch these bastards.

If a terrorist has you on speed-dial, expect that you're gonna get a visit from Uncle Sam, and for good reason.

Thanks for your opinion though. I'd love to hear your opinions on ECHELON and CARNIVORE. Searched your site (with Google) and found none.

--Jason

[Llama School]

ECHELON (from what I know of them) monitors communications in countries that aren't involved in it (i.e. I don't think they monitor communications in the US, UK, Australia, and New Zealand.

Gore isn't against wiretapping or monitoring foreign communications. Gore (and others) are against illegal monitoring of US citizens, especially when it's against current law.

[Jason Coleman]

Sorry Llama, Echelon captures ALL communication and doesn't discriminate about "where" the communications come from. Discrimination is only applied after the fact, if at all. Gore and Clinton didn't have a problem using the power of Echelon against Randy Weaver and his cohorts, nor did Reno reject Echelon intercepts from Waco and the Branch D's.

The facts are simple, both the current issue and the Echelon and Carnivore intercepts are just that, INTERCEPTS, and it's perfectly legal to gather and analyze "electronic intercepts."

I'm sure you're a good guy, and you've given this alot of effort, but you've completely ignored the hypocrisy of Gore and the Clintons with regard to this issue. Which is really another in a seemingly endless series of NON-ISSUES, this is just the next non-issue to be run up the flagpole and thousands of moonbats will salute it, but the legal institutions of America, won't, just like Downing, just like Plame, just like all the rest.

Since you're not aware of what Echelon and Carnivore do, I'll give you a pass, go look into them for yourself, I encourage you to do so HONESTLY and you'll be anxious to get an injunction on these programs that are still running rather than try to chase the NSA injuction so Osama can call you and wish you goodnight without a trace.

So here's another question for you? Do you think we SHOULD NOT be trying to figure out the details about terrorists making phone calls into the U.S.? And if the answer to that is YES, I wonder who's side you're actually on in this whole she-bang.

--Jason

[Llama School]

IF Echelon is used to monitor communications of US citizens w/o a warrant, then it is being used illegally. If Echelon was used to monitor Weaver, the Branch Davidians, and others American citizens if there's a warrant on them, then that's fine. From what I know, Echelon is used primarily for intercepting foriegn communications.

But I haven't seen any evidence that Echelon intercepts have been used in monitoring Weaver/Koresh (after lots of searching), or that Echelon is used in warrantless monitoring of US citizens.

And to answer your question, of course we should be trying to figure out stuff re: terrorists calling into the U.S. FISA doesn't ban this kind of activity.

[K]

Hi Llama School:
First off, let me say that between here and PW, I appreciate your level-headed analysis (even where I think it's incorrect).
However, the questions regarding the recently leaked NSA program appear to be this:
1) Does the AUMF modify FISA w/r/t the "except as authorized by statute."
and
2) Does FISA encroach, unconstitutionally upon the President's War Powers, and thereby invalidate itself in such a case, making (1) irrelevant.
The argument has been made to both ends.
Yet further, if I may, is the question of "American Citizen." I think we can agree that members of Al Queda without U.S. Citizenship are irrelevant to the discussion. I would hope we could also agree that these intercepts are between Known/Reasonably believed Al Queda operatives and persons (Citizen or otherwise) residing in the U.S.?
I'll proceed as though we can agree on those.
As many have argued, (1) presumes a reasonable interpretation of AUMF's modification of FISA. If that interpretation is incorrect, it's something for the courts to decide. Again, it's a question of what the law says, as interpreted by the judiciary, not what the law was supposed to say.

Further, (2) as
Powerline has argued, there are serious questions as to whether FISA can truly modify the President's War Powers. If the administration has truly presented how the program works -- and there is no actual evidence, despite the leakage of NSA clandestine programs to the contrary -- intercepting communications from known foreign agents abroad to what are, technically I guess, spies within must certainly fall under War Powers.

I can sympethize with your desire to argue whether/not this sort of interpretation helps the Union or not, but it's not relevant to the legality issues.

Per the Whistleblower topic: Gen. Hayden indicated that no formal complains have ever been filed by NSA employees. You seem to be implying two things by suggesting that the leakers could be whistleblowers: (1) that such a whistleblower, instead of blowing a whistle within the administration chose to first leak the information, and will not support that leak. And second that either the leaker is not NSA -- and thereby shouldn't know enough about the program to blow any whistles, or a distinguished American servant such as Gen. Hayden is a liar. If you have another out, please present it, because Gen. Hayden expressly indicated that No NSA employee had filed any complaints.