T Nation

DOJ Brief on NSA Surveillance


For your review and/or enjoyment:


To steal Professor Orin Kerr's synopsis of the arguments:



[i]Here is the administration's argument in a nutshell:

First, the President has inherent constitutional authority to order foreign intelligence surveillance monitoring. The President's core job is to protect the country against foreign attack. The 9/11 attacks made this interest particularly strong: Al Qaeda is a clandestine enemy, and we need to gather intelligence to stop them. The Authorization to Use Military Force further emphasized this power: it brought foreign intelligence surveillance from Steel Seizures Category II to a Steel Seizures Category I, in which the President's authority is at a maximum. The AUMF confirms and bolsters the President's authority; under the test announced in Justice O'Connor's concurrence in Hamdi, foreign intelligence surveillance is a classic "fundamental incident of war" that the AUMF authorizes. The combination of the President's Commander-in-Chief power and Congress's explicit authoritization in the AUMF gives the President full authority to conduct this monitoring.

Further, the monitoring doesn't violate FISA and also complies with the Fourth Amendment. FISA itself is on fragile constitutional ground, and in any event the AUMF is a "statute" that authorizes the monitoring. Further, the so-called exclusivity provision of the wiretap act, 18 U.S.C. 2511(2)(f), doesn't trump this commonsense result. The legislative history of the section was focused on the notion of Congressional authorization, which the AUMF provided, and a contrary reading would create serious constitutional questions. The canon of constitutional avoidance requires construing the statutes to allow this sort of surveillance: the constitutionality of a statutory prohibition on such monitoring presents very difficult questions, as the NSA activities lie at the core of the Commander in Chief power. There are few guideposts here, and courts should construe the statute in a way to avoid having to reach these difficult constitutional questions. FISA is unconstitutional to the extent it directly interferes with the President's constitutional duty, and it would be prudent to construe the statute in a way that avoids these constitutional questions.

Finally, the monitoring program fits within the Fourth Amendment "special needs" exception. The rule here is reasonableness, which requires a balancing of governmental and privacy interests. The program is reasonable: the government's interest in thwarting a future attack is overwhelming, and the monitoring itself has been tailored and subject to considerable internal review.[/i]


democrats: Read THIS ARTICLE!!!

Again, your latest scheme is going to backfire.



Read it why?
It's the same 2 debunked arguments.

The AUMF gave him authority. False.
First, it doesn't. Electronic surveillance has been curtailed by congress except where allowed by specific federal statutes. ALL (jeff-do you understand all?) surveillance falls under these specific statutes, which include exceptions for time of war (15 days I think). The AUMF is NOT one of those statutes.

Not to mention their argument isn't even consistant inside the admin.

Does this fall under FISA?

Gonzales: Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires.

Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."

Keep in mind. -minus the false AUMF argument, this falls under FISA--

Congress has authorized it but...

"We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible."

So congress wouldn't authorize it. (Keep in mind, it would fall under FISA, and thus FISA would have to be ammended.)

The president has the "inherent authority". Of course, FALSE.

This is the same false argument mentioned in the Bush:black is white thread.
The issue is NOT does the president have the inherent authority to perform electronic surveillance on americans without a warrant, The actual issue is whether it is legal to perform such surveillance despite the fact congress has passed a law saying that such actions are not legal.

Nothing cited thus far by the president says he has the power to do so.

The whole point of this argument is to cloud the issue in the minds of people like you jeffr, hapless sheep.(And its working like gangbusters!)

And what's the latest scheme? Protecting the constitution? wouldn't that scheme backfiring be bad?


Please refer to the basic civics point in the other thread: Constitutional authority of the President cannot be limited via statute.


Another review/synopsis of the DOJ brief, from USD law prof Tom Smith - I think the summaries do a pretty fair job of making these issues accessible for those who have not studied Constitutional law issues in depth:


DOJ brief on NSA program
By Tom Smith

The DOJ memo on legal authorities for the NSA program is out ( http://news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf ). If you are at all interested in the legal issues raised by the program, you ought to read it. A fortiori, if you are going to appear on the media as an 'expert' on this issue. So far, I have read just Part I, on the President's Article II authority, and his authority under AUMF, and have just started Part II, on FISA.

Part I is very good. It is very well written, clearly and persuasively argued, and marshals a quite impressive mountain of authorities in support of its position. I want to blog on it in more detail later, so this is just some off the cuff reactions.

My prediction is that critics of Bush and the NSA program will try to avoid the arguments and authorities in this memo as best they can. Part I seems to me to be in slam-dunk territory, which means it could garner only 4 votes against it in the current court. Just some tidbits. There is a long historical tradition of Presidents authorizing warrantless surveillance for foreign intelligence purposes, and ample Supreme Court precedent supporting same. These powers are ample even in peacetime. They are even stronger in wartime. This is wartime. You have the AUMF, you even have NATO article 5. Nice touch. Does sound like wartime. They would seem to be stronger still, when the enemy has agents inside the US, has attacked on US soil, has announced its intention to attack again on US soil, and uses electronic communications as part of its plan to wage war against the US, and effecting those plans. Indeed, to invade the US. Does the president have the power to repel invasions using force in its usual and traditional modes? Does he, hell. (My words.)

I especially liked the use of the Youngstown case.[NB from BB: This is the Steel Seizure case in which the USSC ruled that President Truman had overstepped his Constitutional powers, and Justice Jackson's concurring opinion set up an analytical framework for looking at separation of powers questions]. The memo argues, convincingly I would say, that the AUMF puts the President in Zone Whatever, the zone where the President is at the zenith of his powers under Article II. I had not thought of that, but it makes sense. The Famous Professors letter against the NSA program argued that FISA put the President in the zone where the President was most circumscribed. But the DOJ argument makes more sense. If Congress tells the President, go get the guys who did this, and stop them from doing it again, and use as much force as necessary, that sounds like a broad authorization to use Article II powers as much as necessary to get the job done. It seems silly and technical to argue that this broad and urgent authorization in a time of national emergency, would not trump any Youngstown power-narrowing effect, produced by FISA. You see, the Famous Professor's argument is that FISA has a kind of penumbra under Youngstown that constrains Presidential powers to their narrowest scope. DOJ says that AUMF dispells any penumbra from FISA, and indeed puts the President in the zone of maximum and authority, where Congress has empowered him to go do what has to be done. That does indeed seem to be what AUMF does. I speak metaphorically here, and probably unclearly, but, to the fair minded, I think it will be clear that much damage has been done to the FISA- plus- Youngstown- equals- a- very- constrained- President argument. I am not that sold on Jackson's concurrence in Youngstown anyway. I dislike 'zones', which are usually just an attempt to lend false precision to sketchy analysis. But still, I would not be surprized if critics start harping on Youngstown now, it being such a two edged sword.

I will just add that Part I of the DOJ letter is fun to read. Without referring to opposing arguments floating around, it does a good job demolishing them. That is always fun. It helps, of course, to have so have so much authority on your side. These arguments against presidential power in national security seemed so much more persuasive when the President was bombing third world fanatics and spying on us, instead of our getting bombed by them, and our spying on them.

Part II on FISA is not going to be as much fun. FISA appears indeed to be a complex and deeply misguided law, crafted at the recent nadir of American self-loathing (1978) by that nice man, friend of my family, but walking national security disaster, Frank Church. The argument is going to be, FISA does not stop the President from doing what is necessary to protect the country, but if it does, it is unconstitutional.

But don't worry about me. Just read the DOJ letter! It is a fine piece of work.


Gonzo is just shilling for his pal Bush.

The WH is wrong.

You know damn well that BB would not be shilling for a Democratic President.

BB = Ken Mehlman

Nuff said.


Wow, Marmadogg is being unusually helpful in giving us this fine example of how not to argue.

First sentence = blanket conclusive statement. This is fine in and of itself, but usually should be followed with some sort of reasoning.

Second sentence = well, another blanket conclusive statement. Still no reasoning, nor any facts, nor any examples -- nothing but a nice, brief conclusion.

Third sentence = well, this tries to approximate reasoning. It's useful to us, though, in that it gives a nice example of a classic ad hominem attack. Usually, of course, such an ad hominem would be directed toward the administration, DOJ or other producers of the argument. However, in this case, marmadogg attempts to argue against the DOJ by implying that because I support it, it must be false. Notice the embedded assumptions - first, that anything produced by the Whitehouse/DOJ/admin would be something I would support. But that doesn't yet tie us to his conclusion, which is that it's false. In fact, this whole idea is circular because it's premised on the necessary assumption that it is in fact false - otherwise, who cares if it's repeated? So, essentially, a roundabout way of poorly reasoning oneself into another conclusory statement.

Last, another attempted ad hominem against me - with the embedded assumption that anything Ken Mehlmen would say must be wrong, which is an ad hominem against him.

Thoroughly excellent work marmadogg. I wish I would have had something like this from which to work when I used to teach LSAT classes -- it would have been nice to have such a good example of faulty arguments for process-of-elimination purposes...


Nothing to see folks...just another right wingnut blindly following his party down the rabbit hole.

This would be you and the rest of the right wingnuttery on this site (and 100meter, ProfX, left wingnuttery, etc.)

"Political bias affects brain activity, study finds

Democrats and Republicans both adept at ignoring facts, brain scans show"



And thank you for serving up this example of a non sequiter. You really are skilled at writing good "process of elimination" examples.

Also, you act as if it's new information that people in general ignore facts that disagree with notions they've already formed -- it's not like this phenomenon is specific to Democrats and Republicans.

It's a very general trait, and it's called confirmation bias: http://skepdic.com/confirmbias.html

You seem to suffer from it more than most...


Fascinating, but I fail to see how it relates to the subject at hand.


Rah, rah, Bush's choice to the SCOTUS because BB is a Republican robot.

Did you know BB from SD?


Attorney General Gonzalez laid out the basics of the AUMF authorization article today in the WSJ, and he is going to testify before Congress in a closed session later today - note, this is not the Article II argument:

America Expects Surveillance
February 6, 2006; Page A18

In the days following Sept. 11, 2001, President Bush charted a course of action to respond to the worst attack on our homeland in history. He promised to use every tool available to defeat al Qaeda and pledged to take the fight to the enemy abroad as he worked to prevent another attack. As he said in the State of the Union address, "Our country must remain on the offensive against terrorism here at home." The president has the constitutional responsibility -- and authority -- to lead this response.

After Sept. 11, Congress immediately confirmed the president's constitutional authority to "use all necessary and appropriate force" against those "those nations, organizations, or persons he determines" responsible for the attacks. The Authorization for Use of Military Force (AUMF) gave the president the latitude to use a full complement of tools and tactics against our enemy. A majority of Supreme Court justices have concluded that the AUMF authorizes the president to use "fundamental and accepted" incidents of military force in our armed conflict with al Qaeda. The use of signals intelligence -- intercepting enemy communications -- is a fundamental incident of waging war.

With the recent leak of the NSA's terrorist surveillance program, some have questioned whether this congressional authorization can be read to encompass signals intelligence. In this case, our military is engaged in signals intelligence when they have reason to believe that at least one person is a member or agent of al Qaeda or a related terrorist organization communicating into or out of the U.S. The purpose is to learn the locations, plans and capabilities of our enemy. Consider the facts from both a legal and a commonsense perspective.

The president, as commander in chief, has asserted his authority to use sophisticated military drones to search for Osama bin Laden, to deploy our armed forces in combat zones, and to kill or capture al Qaeda operatives around the world. No one would dispute that the AUMF supports the president in each of these actions.

It is, therefore, inconceivable that the AUMF does not also support the president's efforts to intercept the communications of our enemies. Any future al Qaeda attacks on the homeland are likely to be carried out, like Sept. 11, by operatives hiding among us. The NSA terrorist surveillance program is a military operation designed to detect them quickly. Efforts to identify the terrorists and their plans expeditiously while ensuring faithful adherence to the Constitution and our existing laws is precisely what America expects from the president.

History is clear that signals intelligence is, to use the language of the Supreme Court, "a fundamental incident of waging war." President Wilson authorized the military to intercept all telegraph, telephone and cable communications into and out of the U.S. during World War I. The day after Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the U.S. These sweeping measures were seen as necessary and lawful during critical moments of past armed conflicts. So, too, are the more focused intercepts of al Qaeda during our current armed conflict, especially given the nature of the enemy we face.

The AUMF is broad in scope, and understandably so; Congress could not have catalogued every possible aspect of military force it was endorsing. That's why the Supreme Court ruled in Hamdi v. Rumsfeld that the detention of enemy combatants -- a fundamental incident of war -- was lawful, even though detention is not mentioned in the AUMF. The same argument holds true for the terrorist surveillance program. Nor was the president's authorization of the terrorist surveillance program in violation of the Foreign Intelligence Surveillance Act. FISA bars persons from intentionally "engag[ing] ? in electronic surveillance under color of law except as authorized by statute." The AUMF provides this statutory authorization for the terrorist surveillance program as an exception to FISA.

Lastly, the terrorist surveillance program fully complies with the Fourth Amendment, which prohibits unreasonable searches and seizures. Like sobriety checkpoints or border searches, this program involves "special needs" beyond routine law enforcement, an exception to the warrant requirement upheld by the Supreme Court as consistent with the Fourth Amendment.

The AUMF is not a blank check for the president to cash at the expense of the rights of citizens. The NSA's terrorist surveillance program is narrowly focused on the international communications of persons believed to be members or agents of al Qaeda or affiliated terrorist organizations. The terrorist surveillance program protects both the security of the nation and the rights and liberties we cherish. As the president said in his State of the Union speech, "the terrorist surveillance program has helped prevent terrorist attacks. It remains essential to the security of America." When I testify before Congress today, I will tell them not only that the president had the authority to use this effective antiterror tool, but that it would have been irresponsible for him not to employ this weapon to prevent another attack on our country.

Mr. Gonzales is the U.S. attorney general.


Of course Gonzales is going to try to justify the domestic spying, that is part of his job. What matters is whether or not his arguments will hold water in a court of law... and from what I've seen, the justifications Team Bush are using will not stand up in court... the only place that matters.

Funny, the Republicans on the Senate panel refused to make Gonzales testify under oath. All the Democrats voted for swearing in first, and all the Republicans voted against swearing in. Makes ya wonder if Gonzales has got something to hide? Otherwise, why not testify under oath?

I guess the Republicans on the committee are a little worried about Gonzales testifying under oath, since he has already given Senators conflicting statements to questions about domestic spying, in the past. Plus, Gonzales already perjured himself once during the Abu Ghraib hearings (Gonzales and General Sanchez both testified that they did not see any documents or personally okay any torture tactics, when in fact the miltary's own paper trail says that indeed they did). Since Gonzales is the top law enforcement official, it's highly doubtful that he will investigate himself for lying to Congress.

If the president can spy on whoever he wants, at his own discretion, then there's no need for a Patriot Act. And there's no need for the FISA courts.

Nixon was impeached for domestic spying. I have a hunch that as this story unfolds, it will come out in the open that Bush was spying on political rivals, and groups like PETA and Act Up and the Quakers, "Raging Grannies", Greenpeace, and other non-terrorist organizations. Bush and Gonzales definitely seem to be hiding something, and spying on rivals and non-terrorist groups is the most logical guess. Whether the GOP-dominated Congress has the integrity to do something about it, is doubtful. Many of them act like they swore to uphold the Republican party, instead of swearing to uphold the Constitution.

You know what's funny? Guys who say they are "Libertarian" or that they "lean Libertarian" who say they don't mind if the federal government spies on US. citizens without getting the warrants that are required by law.

A good rule of thumb on issues like this is to ask people "How would you feel if it was President Hillary Clinton doing it?"

Peoples' hypocrisy bubbles up to the surface real quick, when you put things in those terms.


Perfect example of a guy who puts his party ahead of his country:

"Rove counting heads on the Senate Judiciary Committee"

The White House has been twisting arms to ensure that no Republican member votes against President Bush in the Senate Judiciary Committee?s investigation of the administration's unauthorized wiretapping.

Congressional sources said Deputy Chief of Staff Karl Rove has threatened to blacklist any Republican who votes against the president. The sources said the blacklist would mean a halt in any White House political or financial support of senators running for re-election in November.

"It's hardball all the way," a senior GOP congressional aide said."

more here:


And you know how the courts will rule on the legal questions how?

If it's not a hearing as such, why have him sworn in? That would increase the burden, because then Gonzalez would necessarily have to answer he couldn't recall in any situation concerning anything he had not gone back and specifically reviewed. If they want his candid initial impressions to their questions, that would indicate they wouldn't require a swearing in.

Really? Given that there aren't any documents that OK torture tactics, that's quite a feat.

Straw man. The argument isn't that the president can spy on whomever he wants. The argument is that the president has inherent Constitutional authority to collect intelligence related to the agents of foreign powers.

You need to bone up on your history. Firstly, Nixon wasn't impeached. Secondly, the trouble he was facing at the time of his resignation stemmed more from his attempts to cover up what he was doing than from anything else.

The rest of the above paragraph is essentially paranoid fantasy masquerading as assured prediction.

Actually, hard-core libertarians would cede that one of the only functions the central government is supposed to provide is protection against external enemies. One can make an excellent case -- and indeed, the DOJ has -- that this program falls under that function.

Your supposition of course is that it would change the answer. But if President Hillary Clinton were using the NSA to collect intelligence on numbers connected to al Queda, I'd be fine with it. Remember, from what we know about this program, it involves listening in to both sides of international calls made to or from phone numbers linked to al Queda.


Some good observations by USD law professor Mike Rappaport:


Where is William Eskridge Now That Alberto Gonzales Needs Him?
By Mike Rappaport

Alberto Gonzales is testifying about the NSA antiterrorist program today before the Senate Judiciary Committee. Having reviewed the various legal memoranda, I believe that a reasonable argument can be made for the legality of the program under the strict originalist interpretive theory I follow. While I tend to have a narrow view of the President's Commander-in-Chief power, I believe there is a reasonable argument -- not conclusive, but reasonable -- that Congress's authorization of force against Al Quaeda authorized the program. That, combined with the administration's disclosure of the program to Congress throughout and the absence of any claims of abuse under the program, should end any charges of wrongdoing. Whether the program is ultimately upheld by the courts and how it should be legally authorized by Congress in the future are separate matters.

But while one can make a reasonable argument for the program as an originalist, that is not the statutory interpretive theory most liberal law professor's follow. One of the more popular theories is William Eskridge's dynamic statutory interpretation, which allows for the updating of statutes, sometimes even shortly after they were enacted. And under that theory, the legality of the NSA program is a slam dunk.

FISA was enacted during the Cold War in responses to abuses by prior Presidents. Circumstances have now changed: there is now a war on terror and a communications technology revolution has occured. And FISA itself contemplates new statutory authorization. So when Congress authorized action against Al Quaeda under these new circumstances, the dynamic theory should strongly approve of it. And the fact that the American people seem behind the program should also cement the argument.

But Alberto Gonzales is having a hard time with liberal Congressmen. He could sure use some cover from an op ed by Eskridge. But where is Bill?


Because every constitutional scholar I have seen comment on this case, says that the White House defense for bypassing the warrant process, is downright laughable and wouldn't last 5 seconds in a court of law. Just the fact that Gonzales has changed his explanation and given a shifting rationale, indicates how weak his case is.

Sure, I guess there will be ample time to swear him in, later. This hearing is just the beginning. Why not swear him in, and let him say "I don't know" on questions he doesn't know? He's saying that anyway.

Yes there are. I just told you that the paper trail leads back to Gonzales, when he was Bush's legal advisor, and General Sanchez.

No, the argument is whether the president has the power to ignore any pre-existing laws that he finds inconvenient (the FISA law requiring a warrant for spying).

Oops, right. Nixon quickly resigned in disgrace when it became obvious he would be impeached. Your point about a cover-up being worse than the crime is not your legal viewpoint, is it? LOL

Okay, just remember you said that. Because this case can potentially expand the powers of the president in a dramatic way. Lets see how short-sighted the GOP is. Will they condone Bush breaking the law, and permanently change the balance of power?


Wrong. Bush has a problem with Republicans and Democrats both. This is not a partisan issue.

Try watching the hearings on CSPAN and pay attention to questioning from Republican Senators Graham and Senator Spector.


FYI, you've equated apples and oranges. "Liberal" does not mean "Democrat," nor does "Conservative" mean "Republican."


Hmm, these guys are liberal?

Bob Barr
Grover Norquist
Arlen Spector
Lindsay Graham
John McCain

They've all made comments on the record, that the White House ignoring the FISA courts was (variously) illegal, not good government, unnecessary.

When will the White House explain how following the existing federal laws prevents them from fighting terrorism?

It's interesting to watch Gonzales try to justify why it's okay that Bush would knowingly ignore the FISA laws, because Gonzales was almost certainly the person who advised Bush that ignoring the law was okay, back when he was Bush's White House legal counsel.