Listening to the Enemy - The legal Ground on Which the President Stands

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National Review
February 10, 2006

BYRON YORK

In early September 2002, just before the first anniversary of the September 11 terrorist attacks, a group of lawyers gathered in a heavily protected, windowless room in the Department of Justice building in Washington. There were three federal appeals-court judges, Laurence Silberman, Edward Leavy, and Ralph Guy. There was Theodore Olson, the U.S. solicitor general. There was Larry Thompson, the deputy attorney general. And there was John Yoo, the Justice official who had closely studied questions of war powers and presidential authority. Rounding out the group were a few other department staffers, one official from the FBI, and David Addington, Vice President Cheney’s top lawyer.

The purpose of the meeting was to argue a case whose details remain so classified that they are known by only a few people, but whose outcome, a decision known as In re: Sealed Case, has become one of the key documents in the hottest argument in Washington today: the fight over what President Bush calls the “terrorist surveillance” of persons with known al-Qaeda connections, and what the president’s opponents call “domestic spying.”

The three judges made up what is known as the FISA Court of Review. It was created in 1978 by the now-famous Foreign Intelligence Surveillance Act. The act required that the president go to the so-called FISA Court to seek a warrant for surveillance in top-secret foreign-intelligence cases. For any disputed decisions that might arise, Congress also created the Court of Review, a sort of super-secret appeals court.

But in all the years between 1978 and 2002, there had never been occasion for the Court of Review to actually meet. Not until Sealed Case, and the three-way collision between the executive, legislative, and judicial branches that it involved. Today, a look at the circumstances of the case provides not only an insight into the administration’s rationale for the secret, warrantless surveillance program but also important clues to the mystery of how the whole thing got started in the first place.

The conflict began with the passage of the Patriot Act in October 2001. The act tore down the “wall” that had arisen in the Justice Department that blocked intelligence officials and criminal investigators from working together and sharing information. That wall had been cemented by a set of internal department guidelines written in 1995, in which then–attorney general Janet Reno outlined the department’s constricted surveillance procedures.

The Patriot Act was designed to fix that problem. But a month after the act was passed, when the Justice Department submitted surveillance requests to the FISA Court under the new, looser standards passed by Congress, the FISA Court in effect rejected the Patriot Act, and instead reaffirmed the old 1995 Clinton-era standard.

A standoff ensued. In early 2002, the Justice Department adopted new surveillance procedures based on the Patriot Act. In March 2002, the department informed the FISA Court that it would use those new standards in surveillance applications. In May, the FISA Court said, in effect, not so fast, and ordered modifications in the procedures. Among other things, the FISA Court ordered that “law enforcement officials shall not make recommendations to intelligence officials concerning the initiation, operation, continuation or expansion of FISA searches or surveillances” — a reasonable facsimile of the old wall. The FISA Court also ordered that the Justice Department include certain staffers in all surveillance debates, an order that quickly became known in the Justice Department as the “chaperone requirement.”

The Justice Department resisted, and in July 2002 filed a surveillance application — the details are still a secret — using its new procedures, without the FISA Court’s mandated changes. The Court approved the application but insisted that the modifications be made according to the court’s dictates. And then, in August, the FISA Court took the extraordinary step of making its decision public, accusing the Justice Department of habitually misrepresenting evidence and misleading the court. That’s when the department decided to take the matter to the Court of Review, leading to the September 2002 session in that secure room in department headquarters.

“We’re here today,” Theodore Olson said as the secret In re: Sealed Case court argument began, “because the Foreign Intelligence Surveillance Court’s May 17th order . . . has perpetuated a serious and increasingly destructive barrier which has hamstrung the president and his subordinates” in their work to protect “the United States and its citizens from attack and from international terrorism.” The FISA Court’s ruling, Olson continued, was “inexplicable.”

Olson and the judges went back and forth over the history of the wall. Nobody really knew how it first came into being; the judges later said its origin was “shrouded in historical mist.” They went over what Congress intended when it passed the Patriot Act. And they went over the question of whether the FISA Court had the power to tell the president how to conduct investigations.

The answer was no, Olson said. “To the extent that the FISA Court is purporting to reorganize the executive branch, the so-called chaperone function, I don’t think Congress could constitutionally tell the executive or the attorney general that he could not talk to this subordinate without involving that subordinate,” Olson told the judges, “and I certainly don’t think the court can do so.”

The entire session lasted just a few hours, and the Justice Department waited for the Court of Review’s ruling. When it came, in November 2002, it was a slam-dunk win for the government.

In its opinion, the Court of Review said the FISA Court had, in effect, attempted to unilaterally impose the old 1995 rules. “In doing so, the FISA Court erred,” the ruling read. “It did not provide any constitutional basis for its action — we think there is none — and misconstrued the main statutory provision on which it relied.” The FISA Court, according to the ruling, “refus[ed] to consider the legal significance of the Patriot Act’s crucial amendments” and “may well have exceeded the constitutional bounds” governing the courts by asserting “authority to govern the internal organization and investigative procedures of the Department of Justice.”

And then the Court of Review did one more thing, something that has repercussions in today’s surveillance controversy. Not only could the FISA Court not tell the president how do to his work, the Court of Review said, but the president also had the “inherent authority” under the Constitution to conduct needed surveillance without obtaining any warrant — from the FISA Court or anyone else. Referring to an earlier case, known as Truong, which dealt with surveillance before FISA was passed, the Court of Review wrote: “The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”

It was a clear and sweeping statement of executive authority. And what was most likely not known to the Court of Review at the time was that the administration had, in 2002, started a program in which it did exactly what the Court of Review said it had the power to do: order the surveillance of some international communications without a warrant.

Read today, In re: Sealed Case does more than simply outline the president’s authority. It also puts the administration’s warrantless-surveillance decision in some context. What was going on at the time the president made the decision to go ahead with the surveillance? Well, first Congress passed the Patriot Act, giving the administration new powers. Then the FISA Court refused to recognize those powers and attempted to impose outdated restrictions on the administration. Then the White House, faced with the FISA Court’s opposition — and with what administration officials believed were some inherent weaknesses in the FISA law — began to bypass the FISA Court in some cases. And then, in In re: Sealed Case, the administration received irrefutable legal support for its actions.

After the decision was handed down, the American Civil Liberties Union, which had submitted a brief in support of the FISA Court’s actions restricting the administration, asked the Supreme Court to review In re: Sealed Case. The justices declined to take any action. That is not the same as the Court’s upholding the ruling, but it does mean that the justices looked at the decision and chose not to intervene.

Today, the opinion stands as a bedrock statement of presidential power. And ironically, it came from a case that was not about whether the president had overstepped his bounds, but about whether the courts had overstepped their bounds. The Court of Review ruled strongly in favor of the president, and the Supreme Court declined to reconsider that decision. Reading the opinion, it’s no wonder that George W. Bush has so strongly defended the surveillance program. If the FISA Court of Review is right, he has the Constitution on his side.

Linked at STOP the ACLU

Stop The ACLU’s One Year Blogiversary Blogburst: Top Ten Myths About The ACLU

Today I turn 29 years old, and Stop the ACLU turns one. We started out on blogsnot. Here is our first post. Enough about that...on with the blogburst.

Top Ten Myths of the ACLU:

10. The ACLU is non-partisan:

The Truth: Not only were they founded on Communism, they are about as liberal an organization in existence. The public saw first hand in 1988 how the ACLU was involved in politics. "The portrayal of the ACLU as a radical liberal lobby reached its climax in the 1988 presidential campaign when George Bush used ACLU membership as a black mark against his opponent Michael Dukakis. The perception had taken root that the ACLU of 1988 has about as much to do with civil liberties as the AT&T of 1988 has to do with telegraphs."

"Social reform, in a liberal direction, is the sine qua non of the ACLU. Its record, far from showing a momentary wavering from impartiality, is replete with attempts to reform American society according to the wisdom of liberalism. The truth of the matter is that the ACLU has always been a highly politicized organization."William Donahue

They may take a token case here and there for the other side to bolster its non-partisan claims, but those cases are far outweighed by their numerous other cases that are clearly intended to further its partisan agenda. They even keep scorecards on Congressmen and Representatives. Their claim of non-partisanship is what gives them their tax-exempt status, and nothing is further from the truth. They have split their organization into two in order to lobby their causes to the legislative branch.

9. The ACLU Cares About Your Privacy Rights:

The Truth: Despite all the rhetoric over the current NSA program, where the ACLU opposes the U.S. listening to traitor's having conversations with terrorists, the ACLU has no room to talk when it comes to violating privacy.

The American Civil Liberties Union is using sophisticated technology to collect a wide variety of information about its members and donors in a fund-raising effort that has ignited a bitter debate over its leaders' commitment to privacy rights.

Some board members say the extensive data collection makes a mockery of the organization's frequent criticism of banks, corporations and government agencies for their practice of accumulating data on people for marketing and other purposes.

Daniel S. Lowman, vice president for analytical services at Grenzebach Glier & Associates, the data firm hired by the A.C.L.U., said the software the organization is using, Prospect Explorer, combs a broad range of publicly available data to compile a file with information like an individual's wealth, holdings in public corporations, other assets and philanthropic interests.

The issue has attracted the attention of the New York attorney general, who is looking into whether the group violated its promises to protect the privacy of its donors and members. NY Times

8. It is a patriotic thing to support the ACLU.

The Truth: If you think the ACLU represents the average American values, then you are sadly misguided. Their absolutist views of liberty go far beyond what most people could ever support. They support the legalization of child porn distribution , and un-regulated prostitution. They are far from the traditional thoughts of patriotism, constantly defending Americas enemies, and fighting efforts of military recruiters.

7. The ACLU Defends The Bill of Rights.

The Truth: The ACLU defends the parts of the Bill of Rights that are in line with its agenda. What about the second, ninth, and tenth amendment?

ACLU POLICY "The ACLU believes that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms."ACLU

And they certainly don't believe in States rights, constantly attempting to override the will of the people via the judicial branch.

6. The ACLU Defends Religious Liberty

The Truth: The ACLU claims to be the great defender of liberty, but the truth is that their definition of liberty is limited to what alligns within their agenda. As a matter of fact, the ACLU is the foremost religious censor in America. Despite the fact that this nation was founded upon the ideals of religious freedom, the ACLU has succeeded in manipulating the very founding principles through the corrupted judicial branch to repress the religious _expression of America, and continues to work daily at erasing our National religious heritage from the pages of history.details

5. The ACLU's Slogan of "Keep America Safe and Free":

The Truth: What a joke! When 9-11 occurred what measures did the ACLU take to ensure our safety? None, zip, nada. This organization has done nothing to ensure our safety, in fact it has chosen to sue our government on behalf of terrorists outside of their legal jurisdiction while they were located in prisons on foreign soil.

They have since then demanded that the government release and make public top secret security information regarding not only the activities of our military, but also that of our intelligence forces. They have also initiated one lawsuit after another against the government to stop the searching of individuals for security purposes in mass transit situations, to stop what they call profiling (we will never see a Protestant white middle-aged woman as a terrorist working with an extremist Islamic organization) by race, sex and religion, and to stop the government from detaining and questioning or interrogating individuals who have ties or contact with known terrorist individuals and organizations.

They say they are for a safe and free America. Yet their actions speak very loudly the opposite of the lip service they give in this banner for a safe America.

4. They Defend the Oppressed and Helpless:

The Truth: If you count terrorists, child molesters, and murderers as oppressed and helpless, then you may think this one is true. The truly defensless are the very children being harmed by these perverts the ACLU defend. The ACLU don't believe children have any rights, unless it is to murder their own children without their parents ever knowing.

3. The word "American" in their name truly reflects what they are:

They are constantly stepping outside the bounds of America, reaching out to help the very enemy. They fight every effort by our government to protect us, and sue them every chance we get. For the ACLU, the mighty checkbook takes precendence over America's security, and many think they are rooting for the enemy. It isn't hard to believe when theytry to get admitted terrorists off the hook.

2. The ACLU Was Founded On Noble Intentions:

The Truth: One of the great myths of the 20th - and now 21st - century is the belief that the American Civil Liberties Union was an organization that had a noble beginning, but somehow strayed off course.

That myth is untrue. The ACLU set a course to destroy America – her freedom and her values - right from the start.

From its very beginning, the ACLU had strong socialist and communist ties. As early as 1931, the U.S. Congress was alarmed by the ACLU's devotion to communism. A report by the Special House Committee to Investigate Communist Activities stated

The American Civil Liberties Union is closely affiliated with the communist movement in the United States, and fully 90 percent of its efforts are on behalf of communists who have come into conflict with the law. It claims to stand for free speech, free press and free assembly, but it is quite apparent that the main function of the ACLU is an attempt to protect the communists.

Roger Baldwin and Crystal Eastman founded the ACLU in 1920 along with three other organizations dedicated to the most leftist of causes. The histories of these two individuals belie their claims of patriotism and respect for the Constitution.

Baldwin openly sought the utter destruction of American society. Fifteen years after the founding of the ACLU, Baldwin wrote:

I am for Socialism, disarmament and ultimately, for the abolishing of the State itself … I seek the social ownership of property, the abolition of the propertied class and sole control of those who produce wealth. Communism is the goal.

1. The ACLU Does Not Collect Taxpayer's Funds:

The Truth: The Civil Rights Act, intended to help poor people who could not afford to defend their rights, grants judges the right to award attorney's fees in civil rights cases. The ACLU have turned this on its head, often using it to threaten small schools and local governments that can not afford to defend themselves from the ACLU.

Take it from a former ACLU Lawyer, Reese Llyod:

Stated Lloyd: "The ACLU has perverted, distorted and exploited the Civil Rights Act … to turn it into a lawyer-enrichment act."

Lloyd says the American people are "oblivious" to how many millions of dollars in taxpayer funds are going to the ACLU each year.

The attorney pointed out many attorneys in cases brought by the ACLU are volunteers, so the fees the group is awarded normally do not go to reimburse an attorney but rather directly into the organization's coffers.

This was a production of Stop The ACLU Blogburst. If you would like to join us, please email Jay at Jay@stoptheaclu.com or Gribbit at GribbitR@gmail.com. You will be added to our mailing list and blogroll. Over 150 blogs already on-board