The likely fallout here is clearly that various appeals judges will have to provide a ruling on whether or not the President's use of NSA for unwarranted wiretaps was indeed legal or not, and if they determine that it was not, it's likely that all charges against these defendants will be thrown-out and a retrial using clean evidence required.
WASHINGTON, Dec. 27 - Defense lawyers in some of the country's biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.
The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out.
The expected legal challenges, in cases from Florida, Ohio, Oregon and Virginia, add another dimension to the growing controversy over the agency's domestic surveillance program and could jeopardize some of the Bush administration's most important courtroom victories in terror cases, legal analysts say.
The question of whether the N.S.A. program was used in criminal prosecutions and whether it improperly influenced them raises "fascinating and difficult questions," said Carl W. Tobias, a law professor at the University of Richmond who has studied terrorism prosecutions.
"It seems to me that it would be relevant to a person's case," Professor Tobias said. "I would expect the government to say that it is highly sensitive material, but we have legal mechanisms to balance the national security needs with the rights of defendants. I think judges are very conscientious about trying to sort out these issues and balance civil liberties and national security."
While some civil rights advocates, legal experts and members of Congress have said President Bush did not have authority to order eavesdropping by the security agency without warrants, the White House and the Justice Department continued on Tuesday to defend the legality and propriety of the program.
Trent Duffy, a spokesman for the White House, declined to comment in Crawford, Tex., when asked about a report in The New York Times that the security agency had tapped into some of the country's main telephone arteries to conduct broader data-mining operations in the search for terrorists.
But Mr. Duffy said: "This is a limited program. This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner. These are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches."
He added: "The president believes that he has the authority - and he does - under the Constitution to do this limited program. The Congress has been briefed. It is fully in line with the Constitution and also protecting American civil liberties."
Disclosure of the N.S.A. program has already caused ripples in the legal system, with a judge resigning in protest from the Foreign Intelligence Surveillance Court last week. The surveillance court, established by Congress in 1978 to grant warrants in terrorism and espionage cases, wants a briefing from the Bush administration on why it bypassed the court and ordered eavesdropping without warrants.
At the same time, defense lawyers in terrorism cases around the country say they are preparing letters and legal briefs to challenge the N.S.A. program on behalf of their clients, many of them American citizens, and to find out more about how it might have been used. They acknowledge legal hurdles, including the fact that many defendants waived some rights to appeal as part of their plea deals.
Government officials, in defending the value of the security agency's surveillance program, have said in interviews that it played a critical part in at least two cases that led to the convictions of Qaeda associates, Iyman Faris of Ohio, who admitted taking part in a failed plot to bring down the Brooklyn Bridge, and Mohammed Junaid Babar of Queens, who was implicated in a failed plot to bomb British targets.
David B. Smith, a lawyer for Mr. Faris, said he planned to file a motion in part to determine whether information about the surveillance program should have been turned over. Lawyers said they were also considering a civil case against the president, saying that Mr. Faris was the target of an illegal wiretap ordered by Mr. Bush. A lawyer for Mr. Babar declined to comment.
Government officials with knowledge of the program have not ruled out the possibility that it was used in other criminal cases, and a number of defense lawyers said in interviews that circumstantial evidence had led them to question whether the security agency identified their clients through wiretaps.
The first challenge is likely to come in Florida, where lawyers for two men charged with Jose Padilla, who is jailed as an enemy combatant, plan to file a motion as early as next week to determine if the N.S.A. program was used to gain incriminating information on their clients and their suspected ties to Al Qaeda. Kenneth Swartz, one of the lawyers in the case, said, "I think they absolutely have an obligation to tell us" whether the agency was wiretapping the defendants. In a Virginia case, Edward B. MacMahon Jr., a lawyer for Ali al-Timimi, a Muslim scholar in Alexandria who is serving a life sentence for inciting his young followers to wage war against the United States overseas, said the government's explanation of how it came to suspect Mr. Timimi of terrorism ties never added up in his view.
Armando at Dailykos has done an excellent series of diaries which analyse the legality of the President's arguments that his ability to call for warrantless NSA searches are indeed legal under Article II of the Constitution and/or the Authorization to use "all neccesary force" which was passed by Congress in the days following Sept 11th.
The Most Dangerous Branch
The . . . infamous Bybee Memo, is not an anomaly in the thinking of the Bush Administration. It is their doctrine:Most Dangerous Branch Part 2
In a series of opinions examining various legal questions arising after September 11, we have examined the scope of the President's Commander-in-Chief power. . . . Foremost among the objectives committed by the Constitution to [the President's] trust. As Hamilton explained in arguing for the Constitution's adoption, "because the circumstances which may affect the public safety" are "not reducible within certain limits, it must be admitted, as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defense and safety of the community, in any manner essential to its efficacy."
. . . [The Constitution's] sweeping grant vests in the President an unenumerated Executive power . . . The Commander in Chief power and the President's obligation to protect the Nation imply the ancillary powers necessary to their successful exercise.
In short, when acting as Commander-in-Chief, the President is above the law says the Bush Administration. And so have they argued on everything. Torture. Enemy combatants. And now warrantless surveillance of American citizens.
The Bybee memo, and by extension, the Bush Administration and Republicans, argue that it is the Constitution that grants the President these powers. Of course they also have argued that FISA empowers the Bush Administration to carry out the warrantless surveillance that Bush admitted and defiantly embraced yesterday in his weekly radio address. But this is nonsense - simply dishonest, as Glenn Greenwald and others have demonstrated.<> And the Bybee memo, and likely the Yoo memo, that provided the legal justification for the warrantless surveillance, also rely on dishonesty about the Constitution and about Alexander Hamilton and the Federalist Papers. For example, the Bybee memo states that:Nonesense from Justice on Warrantless Surveilance
The President's constitutional power to protect the security of the United States and the lives and saftey of its people must be understood in the light of the Founders' intention to create a federal government "cloathed with all the powers requisite to the complete execution of this trust." The Federalist No. 23.
But what does Federalist 23 actually say?
THE necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union, is the point at the examination of which we are now arrived.
This inquiry will naturally divide itself into three branches the objects to be provided for by the federal government, the quantity of power necessary to the accomplishment of those objects, the persons upon whom that power ought to operate. Its distribution and organization will more properly claim our attention under the succeeding head.
The lie of Bybee and Yoo is obvious. Federalist 23 is not speaking of Presidential power. It is speaking of the power granted the federal government. To cite Federalist 23 as support for a claim of Presidential power over the Congress and the Courts is to flat out lie.
Why indeed? Once you walk all the way through the Justice Dept argument, it becomes clear that the President is essentially laying claim to being - simply put - above the law. He has contorted his Constitutional leeway to decide not to prosecute certain laws passed by Congress as inherent authority not to abide by those laws himself. Then you have Tom Daschle put the hammer directly on the head of the nail by pointing out that Congress specifically rejected the Presidents attempt to gain War Powers within the U.S. - yet this President continues to claim that they gave him power?
The Justice Department has issued an absurd defense of President Bush's authorization of warrantless electronic surveillance. As I have stated before, in the end, the argument necessarily boils down to arguing that the President, when acting as Commander in Chief, has unchecked and unconditioned power. Rather than rehash my previous arguments, I want to concentrate on the President's argument that the September 18, 2001 Congressional Authorization to Use Force provided statutory authority for warrantless surveillance outside of the FISA process. Justice argues that:
Section 2511(2) of Title 18 provides . . . that . . . FISA and two chapter of Title 18 "shall be the exclusive means by which electronic surveillance . . . may be conducted." Section 109 of FISA . . . makes it unlawful to conduct electronic surveillance, "except as authorized by statute." . . . By expressly and broadly excepting from its prohibition electronic surveillance authorized by statute, Section 109 of FISA permits an exception to the procedures of FISA. . . . The AUMF satisfies Section 109's requirement of statutory authorization of electronic surveillance . . .
Could that possibly be correct? No. Let's consider first what Section 109 actually says:
Section 1809. Criminal sanctions
(a) Prohibited activities
A person is guilty of an offense if he intentionally -
(1) engages in electronic surveillance under color of law except as authorized by statute; or (2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not
authorized by statute.
It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both. . . .
So the Justice Department is arguing that a section of FISA that declares unlawful domestic electronic surveillance a crime is a Congressional act authorizing electronic surveillance? That is singular. It seems to me that, at best, this argument can posit that domestic electronic surveillance pursued under the AUMF, assuming the AUMF did authorize such actions, is not a criminal act under Section 109 of FISA. It certainly can not be construed as authorizing such domestic electronic surveillance outside of FISA procedures. It provides for criminal penalties, not authorization for actions by the President.
The proper interpretation, assuming the AUMF did authorize domestic electronic surveillance, is that in addition to the domestic electronic surveillance authorized by FISA, pursuant to FISA procedures, the AUMF provided an alternate authorization for domestic electronic surveillance, but also pursuant to FISA procedures.
The best evidence of this is cited in the Justice Department letter - 18 U.S.C. Section 2511:
Except as otherwise specifically provided in this chapter any person who--
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication . . . shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).
There is no escaping this conclusion. This section states in unequivocal terms that unless the interception complies with the chapter, it is a crime. How to comply?
The criminal wiretap statute and FISA "shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." [18 U.S.C. § 2518(f)]Can Justice escape this logic?
[U]nder established principles of statutory construction the AUMF and FISA must be construed in harmony to avoid any conflict . . .
I agree. But Justice continues the passage in dishonest fashion:
. . . between FISA and the President's Article II authority as Commander in Chief.
Come again? The conflict to be avoided is between the law duly enacted by Congress, FISA, and the Bush claim of unfettered Commander in Chief power? Say what? No, the conflict to be avoided is between AUMF and FISA! Justice cites a case, Zadvydas v. Davis. I presume Justice is referencing this:
"[I]t is a cardinal principle" of statutory interpretation, however, that when an Act of Congress raises "a serious doubt" as to its constitutionality, "this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."
So what Justice is saying is that if FISA is interpreted as limiting the President's Article II Commander in Chief power, then it would be unconstitutional. Thus, it should be construed as permitting Bush's ordering of warrantless domestic electronic surveillance. And here we arrive again at the questions that can not be avoided -- Is FISA unconstitutional? Does the President have plenary powers when acting as Commander in Chief?
Like Cass Sunstein, Justice cites Hamdi v. Rumsfeld to argue that the Supreme Court recognized the AUMF as authorizing the President to invoke his Commander in Chief power. Like Sunstein, Justice ignores that the Hamdi Court also restricted the President's Commander in Chief power, making it subject to Congress' procedural scheme for processing petitions for writ of habeas corpus. So again this disingenuous argument is raised, and needs debunking:
It is a bitter irony that while asserting plenary power as Commander in Chief and defending the violations of FISA by President Bush as supported by the Article II powers accorded the President, at the same time Republicans have played Chicken Little regarding the possible expiration of the Patriot Act and the potential enactment of the ban on torture. These two lines of argument are irreconcilable. What need for the Patriot Act when the President can do whatever he pleases? What harm can a ban on torture cause when the President can violate federal law as he pleases?
Of course this is all nonsense. The arguments regarding the War Powers have always centered on whether the President has the power to wage war without Congressional authorization. Emblematic of this dispute is the War Powers Resolution. And that debate is entirely about who has the power to initiate hostilities. Once hostilities are properly commenced there is no dispute that the President is the sole Commander in Chief.
But never before has a President argued that this power as Commander in Chief provides the President carte blanche to violate federal law. Indeed, in Hamdi, the idea is treated as beneath consideration as the Court does not even address the idea that the President, acting as Commander in Chief, can abolish the right to a writ of habeas corpus, as that power resides SOLELY with the Congress:
All agree that, absent suspension, remains available to all persons detained in the United States. U.S. Const., Art. 1, Section 9 . . . Only in the rarest circumstances has the Congress seen fit to suspend the Writ. . . . At all other times, it remains a critical check on the Executive, ensuring that it does not detain individuals, except in accordance to law.
Well maybe it is only Constitutional rights that check the power of the President as Commander in Chief? Well no. The Hamdi court said:
It is undisputed that Hamdi is properly before an Article III court under 28 U.S.C. Section 2241. Further all agree the Section 2241 and its companion provisions provide at least the outline of a skeletal procedure to be afforded a petitioner for habeas review.
Implicitly, the Hamdi Court rejects the notion that the President, acting as Commander in Chief has plenary power, unchecked by federal law or the Constitution. And Hamdi involved an act, as the Court expressly acknowledged, that is a traditional and recognized military function -- the detention of enemy combatants in a war zone. In this case, Hamdi was captured in Afghanistan. Bush's deliberate violations of FISA involves actions which clearly do NOT fall into the realm of traditional military activity. Electronic surveillance, wiretapping and other similar activities IN THE UNITED STATES are far removed from the capture of enemy combatants in Afghanistan.
Thus, if the President's actions in Hamdi are subject to Congressional acts and judicial review, it is unfathomable that his violations of FISA somehow escape these checks.
It is particularly interesting how the Bush Administration and Republicans in Congress were able to pass a law restricting the right to habeas corpus without arguing that the President had unfettered Commander in Chief power in response to Hamdi.
If they could do it for the traditional military act of detaining enemy combatants, why not with FISA? Why did the President of the United States choose instead to deliberately violate federal law? And why do some legal commentators choose to be apologists for this nefarious act?
On Page A4 of Washington Post
WASHINGTON--The Bush administration requested, and Congress rejected, war-making authority ``in the United States'' in negotiations over the joint resolution passed days after the terrorist attacks of Sept. 11, 2001, according to an opinion article by former Senate majority leader Tom Daschle, D-S.D., in Friday's Washington Post. Daschle's disclosure challenges a central legal argument offered by the White House in defense of the National Security Agency's warrantless wiretapping of U.S. citizens and permanent residents. It suggests that Congress refused explicitly to grant authority that the Bush administration now asserts is implicit in the resolution.All of these arguements and issues will become relevant as the various defense attorneys put forth their motions regarding the use of NSA surveilance information and the Presidential by-pass of FISA, and I think - looking at the entire issue - that most of these motions have a strong likelyhood of being granted, and the evidence (as well as convictions) rendered null and void.
Yeah, that's a great way to combat terrorism -- set them all free as a result of governmental ineptitude.