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New FISA Law to Get First Legal Challenge
From the AP:
Lawyers for Guantanamo Bay detainees asked a federal judge Thursday to invalidate a days-old law that lets government agents eavesdrop on suspected terrorists without first getting court-approved warrants.They said the measure signed into law Sunday by President Bush is illegal because it gives the national intelligence director and the U.S. attorney general too much power to intercept communications of suspected terrorists overseas -- even when they are talking to someone in the United States.
That didn't take long.
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Josh
Zachary
In case you missed it: One Nation Under Bushlegal.
August 10, 2007 11:12 AM | Reply | Permalink
Don't worry, be happy!
"Dubious Dupes of Hazard"
www.ilovepoetry.com/viewpoem.asp?id=93081
August 10, 2007 11:53 AM | Reply | Permalink
Members of the Saud family are alleged to have donated money to Al-Qaida. The Bush family has many personal relationships with members of the Saud family. I look forward to President Clinton eavesdropping on all communications of the Bush family.
August 10, 2007 12:00 PM | Reply | Permalink
I thought the attorneys at CCR already had a case like this dismissed on grounds of lack of standing. (Can't prove injury...because you can't prove you're being spied on...can't prove you're being spied on because it's up to the gov to tell. It's a circular logic problem, but the SCOTUS seemed to have no problem with it.)
My lawyer friends and I theorize the only way this will stop is if the government prosecutes someone using this illegally gained evidence, & the defendant has an excellent attorney who can set precedent by disallowing the usages of such evidence. But then, that assumes the defendant isn't being held as an "enemy combatant" in perpetuity.
August 10, 2007 12:05 PM | Reply | Permalink
The Sixth Circuit ruling is only binding precedent for courts in the Sixth Circuit. I suppose plaintiffs are hoping that courts in another Circuit (i.e., not the 6th) will decide not to follow the 6th Circuit ruling on standing.
Also, it is possible that lawyers for Gitmo prisoners have more concrete information about whether conversations with their clients have been monitored. Although I thought that they weren't really being allowed to have much if any contact with their clients (which is a whole other problem....).
August 10, 2007 12:12 PM | Reply | Permalink
"Members of the Saud family are alleged to have donated money to Al-Qaida. The Bush family has many personal relationships with members of the Saud family. I look forward to President Clinton eavesdropping on all communications of the Bush family."
And seizing all their assets, don't forget!
August 10, 2007 12:19 PM | Reply | Permalink
Right on, bobh!
How is it that anyone can countenance a law that is so obviously unconstitutional? If they want to overturn the fourth amendment, there is a mechanism for that, and they have the option of following it. Until then, this is all bluster and pretense.
August 10, 2007 2:05 PM | Reply | Permalink
Marty Lederman has more on this at Balkinisation
Are New FISA Sections 105A and 105B Mere Window Dressing? Are They Constitutional?
"All of which is to say -- and I think JaO and I agree here -- that the real action in the new law is in section 105A, which simply exempts a huge amount of international communications from FISA altogether (even if the minimization requirements would apparently come back into play under a certified program). Anonymous Liberal calls this a "major legal loophole," but I don't quite understand how it's a "loophole"; it is, rather, the very be-all and end-all of the Act.
One other thing -- there is a very serious question under Article III of the Constitution whether the FISA Court can issue the sort of "programmatic" order contemplated by section 105C, which is one further major step removed from the individual warrant analogy that was the original constitutional justification for the role of the FISA court when it comes to approving electronic surveillance."
Hope the link works, preview would be nice.
August 10, 2007 3:32 PM | Reply | Permalink
Don't forget that Mohammed Atta got the 9/11 money from a guy in UAE, and Dick Cheney was President of Halliburton WHICH IS NOW BASED IN UAE. Bush even wanted to give control of several major US ports to a UAE-controlled company. Bush and his whole family are friends with Prince Bandar, whose wife allegedly gave money to terrorist "charities." Two perfect examples of shady Americans who need 24 hour NSA wiretaps to monitor their nefarious activities.
August 10, 2007 4:14 PM | Reply | Permalink
"I suppose plaintiffs are hoping that courts in another Circuit (i.e., not the 6th) will decide not to follow the 6th Circuit ruling on standing."
It's been a lot of years since law school, and I never did practice, but don't I recall an exception in the rules on standing for cases (or controversies) that are prone to repetition without redress?
This seems a classic situation for the application of that exception. Did the 6th Circuit address this? Am I making it all up?
August 10, 2007 4:56 PM | Reply | Permalink
noen,
The real headline in ML's post isn't about the Constitution. It's that the new law doesn't require the NSA to go before a court for approval of how it directs surveillance at those it "reasonably believes" are outside the US.
On its surface the law contains review procedures. But the lead-in to these provisions is written in a way that makes them optional. That's what Marty means by "window dressing."
This is not what Congress asked for and probably not what most of Congress thinks it got. Its bills required court review in order to do the above surveillance, a judge saying, "Yes, do such and such, and you're forming reasonable beliefs." The WH rejected that. It lets the NSA come to its own view. Going to court is an option only.
When ML says the law "exempts from FISA," he means FISA's standards meant to curb incidental domestic effects of foreign surveillance.
This, of course, is the very opposite of how the law was peddled and how it's being presented even now. We are told: "Don't worry, the court will approve our program." That's the shocker.
It's hard to see. I speak from experience having argued with JaO that this WASN'T so. I pretty much knew I'd lost the argument the time Marty's post went up, despite the PR and sneaky drafting. All that kept me uncertain was visceral hope that we couldn't be subject to unvetted surveillance. But we can.
August 11, 2007 1:28 AM | Reply | Permalink
Occasional Observer,
I think the Art. III argument indicates that not only might the judicial review procedure be optional, but the 180 day review provision might also be totally prohibited by the constitutional limitations on the powers of the courts. The AG will submit the procedures for review at 120 days, and the court might say, "Thanks, but we're not allowed to tell you whether or not this general procedure complies with the law."
August 11, 2007 7:51 AM | Reply | Permalink
Wired also has a story up saying the Justice Department has filed a motion in Judge Vaughn Walker's court in San Francisco asking him to dismiss the eavesdropping civil suits there because the new law renders the complaints moot.
Seems to me they have thereby given him jurisdiction to rule on the law's constitutionality, at least if the opposing lawyers have the sense to argue that the new law is unconstitutional.
August 11, 2007 11:41 AM | Reply | Permalink
To the unnamed commentator two posts up:
Sorry to get back to you so late. I was out of pocket. But I will check again soon to see if you have an answer to the following response, or if I'm missing something.
If the administration can circumvent judicial review by not using the option, I don't see how an Article III would present itself. The judicial review would never occur, there'd be no case or controversy, and the statutory exclusion of surveillance of persons "reasonably believed" to be outside the US would be used by the administration.
There's no challenging the court's power unless it uses it on an actual acquisition of intelligence. If it never approves procedures for determining what beliefs are reasonable, the surveillance can go on without it. If you look at the bill, there's no requirement to even present guidelines to the court for 120 days.
Again, I think that's the real problem. If you can't have judicial review, all that does is close off the "option" whose optionality is where the problem is.
Again, if I'm missing something, please let me know. I'm happy to consider problems for the administration, but I don't see them invalidating the rest of the act, and what remains affects the rest of us.
August 11, 2007 5:13 PM | Reply | Permalink