Topic: Foreign Policy and National Security

Goodbye Warrantless NSA Surveillance?

The DOJ announced today it has reached a double super-secret deal with the FISA court which allows it to bring the administration’s NSA surveillance program within the statutory FISA framework governing surveillance warrants. What deal, you ask? The DOJ’s letter to Senators Leahy and Specter provides few details, except to say that it is based on a FISA court order that establishes “innovative” and “complex” warrant procedures that allow the administration to act with “speed and agility.”

Absent further information, its hard to tell whether this is a good development, although as Marty Lederman notes, it is “difficult to imagine that the FISA court would roll over and approve an ‘innovative’ legal theory if it were dubious – especially not in this context, where DOJ has many incentives to get the FISA court on-board and where the congressional and public spotlight is shining so brightly.”

The administration’s about face underscores what I argued in this piece: that the administration’s claims that it was simply too cumbersome to comply with FISA held absolutely no water.

Lederman also notes that the threat of losses in ongoing multi-district litigation involving the state secrets privilege as well as the threat of congressional subpoenas, and possible litigation over executive privilege, may well have prompted the administration to give up its go it alone stance. I’ve previously argued that such threats had the potential to rein in the administration, without involving a winner-takes-all show down with the Supreme Court, here.

Identity Crisis Book Forum Thursday at Cato

On Thursday, the Cato Institute is having a book forum on my book Identity Crisis: How Identification is Overused and Misunderstood.

Commenting on my presentation of the book will be James Lewis from the Center for Strategic and International Studies and Jay Stanley from the ACLU.

The REAL ID Act is under siege from state leaders who are bridling at this unfunded surveillance mandate, and legislation was introduced at the end of the 109th Congress to repeal REAL ID. But the immigration debate this year will surely fuel the push for a national ID with the demand for “internal enforcement” of immigration law. Identity Crisis lays the groundwork for all these discussions.

The event is streamed for those not in the area. To register, go here.

Civil Liberty (Paid for by Philip Morris USA Inc.)

In a recent radio interview, Deputy Secretary of Defense for Detainee Affairs Cully Stimson threatened top American law firms that have done pro bono work for Guantanamo detainees.  And, he suggested, Vito Corleone-style, that the corporations that bankroll these firms should think twice, if they know, eh-hem, what’s good for them: 

“I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”

A chorus of criticism has followed, which President Reagan’s Solicitor General, Charles Fried, has now joined in today’s Wall Street Journal (available here).  The money quote:

“It may just be that Mr. Stimson is annoyed that his overstretched staff lawyers are opposed by highly trained and motivated elite lawyers working in fancy offices with art work in the corridors and free lunch laid on in sumptuous cafeterias. But it has ever been so; it is the American way. The right to representation does not usually mean representation by the best, brightest and sleekest. That in this case it does is just an irony – one to savor, not deplore.

It is no surprise that firms like Wilmer Hale (which represents both Big Pharma and Tobacco Free Kids), Covington and Burling (which represents both Big Tobacco and Guantanamo detainees), and the other firms on Mr. Stimson’s hit list, are among the most sought-after by law school graduates, and retain the loyalty and enthusiasm of their partners. They offer their lawyers the profession at its best, and help assure that the rule of law is not just a slogan but a satisfying way of life.”

As a big-firm alumnus, I might quibble a bit with Fried’s claim that big firm practice offers a “satisfying way of life”–but he’s absolutely right that the participation of corporate-funded defense firms on detainees’ behalf is something that’s particularly praiseworthy about the American legal system.
 

End the Opium War

Anne Applebaum calls for ending the Opium War in Afghanistan.

Excerpt:

The director of the Senlis Council, a group that studies the drug problem in Afghanistan, told me he reckons that the best way to “ensure more Western soldiers get killed” is to expand poppy eradication.

Besides, things really could get worse. It isn’t so hard to imagine, two or three years down the line, yet another emergency presidential speech, calling for a “surge” of troops to southern Afghanistan – where impoverished villagers, having turned against the West, are joining the Taliban in droves. Before we get there, maybe it’s worth letting some legal poppies bloom.

For more on this, go here.

Next Up: Democrats’ Plan for Tax Augmentation

The Washington Post reports:

[Sen. Chuck] Hagel, a Vietnam veteran, angrily condemned the “escalation” of the [Iraq] war. “To ask our young men and women to sacrifice their lives to be put in the middle of a civil war is … morally wrong. It’s tactically, strategically, militarily wrong.”

“I don’t see it, and the president doesn’t see it, as an escalation,” [Secretary of State Condoleezza] Rice replied.

Hagel looked stunned. “Putting 22,000 new troops, more troops in, is not an escalation?”

“Escalation is not just a matter of how many numbers you put in,” Rice ventured.

“Would you call it a decrease?” Hagel pressed.

“I would call it, Senator, an augmentation.”

The War Decider

I can answer the question Senator Webb put to Secretary Rice yesterday. The answer is, yes, it is “the administration’s position that it possesses the authority to take unilateral action against Iran in the absence of a direct threat without congressional approval.” They haven’t yet directly said “we can launch a war with Iran and we don’t need anyone’s permission,” but it’s not hard to read between the lines:

In April 2002, John Yoo, then with the Justice Department’s Office of Legal Counsel, testified  before the Senate Judiciary Committee that ”the President has the constitutional authority to introduce the U.S. Armed Forces into hostilities when appropriate, with or without specific congressional authorization.” In an internal memorandum prepared shortly after September 11, 2001, Yoo had put it even more starkly: “In the exercise of his plenary power to use military force, the President’s decisions are for him alone and are unreviewable.” 

That is consistent with Vice President Cheney’s long-held view of the president’s powers, as can be seen in this Frontline interview in which Cheney discusses his role as secretary of defense during the Gulf War:

Q: The Congressional vote. Do you recall discussing with the President what he would have done if he’d lost the votes. 

Cheney: It was my view at the time [that] we were absolutely committed to getting Saddam Hussein out of Kuwait one way or the other, no matter what we had to do. We had to have the Saudis as allies in that venture, but if no one else had been with us, if it had just been the United States and Saudi Arabia, without the United Nations, without the authorization of the Congress, we were prepared to go ahead. I argued in public session before the Congress that we did not need congressional authorization…. I was not enthusiastic about going to Congress to ask for an additional grant of authority. I was concerned that they might well vote NO and that would make life more difficult for us, or that even if they voted YES and then we had a disaster on our hands and it didn’t work, they’d still be against us….

Q: But if you’d lost the vote …?

Cheney: If we’d lost the vote in Congress, I would certainly have recommended to the President we go forward anyway.

If and when Secretary Rice provides her promised written answer to Senator Webb, I doubt that it will say: “The president has the constitutional authority to launch wars at will, anywhere in the world, at any time of his choosing, without anyone’s permission. So yes, of course he can start a war with Iran.” But that is the administration’s view.

(Hat tip: Matt Yglesias

“Working Through a Lot of Psychological Issues”

Byron York has an illuminating piece on President Bush’s decision to escalate the war in Iraq. York says that in a meeting with conservative columnists in November last year, Bush

described the period in early 2006, after the Iraqi elections but before the formation of the government, as the White House waited — and waited and waited — for the Iraqis to get their act together. “It was just an agonizing period,” Bush said. But the administration had no choice but to be patient with Iraqis who weren’t used to trying to create a multi-party government. “Part of this is a brand new experience for these guys,” the president explained. “We are working through a lot of serious issues, kind of psychological issues with these folks, as well as what it means to actually build consensus.”