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Tuesday, December 20, 2005

The FISA Rubber Stamp(?)

Last night on CNN Jeff Toobin opined that the FISA court is basically a rubber stamp, and not an effective check on executive authority.  He reported that out of more than 19,000 warrant applications in the court's history only 5 have been refused.  He further explained that the FISA court could even grant warrants retroactively.  For these reasons, he expressed some confusion as to why Bush would bother circumventing the FISA court with secret warrantless wiretapping.

It strikes me, though, that this question cuts both ways.  If Bush could have accomplished exactly what he wanted through FISA, then why is there an uproar over the fact that he bypassed it?  Granted, if he broke the law, that's worth getting upset about; but I gather that the concern here isn't over the mere technicalities of the law, but something far more substantive.  So what is it?

Posted by Hillel Levin on December 20, 2005 at 04:13 PM in Hillel Levin | Permalink


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The question of partisan motivation is a red herring and contradicted by the great many principled conservatives who are appalled by the President's arrogance.

No, the issue would be the same had Clinton done it; have you ever heard of fellow named Lord Acton? He had something to say on the matter.

The issue is precisely as Mr. Levin phrased. It appears as if the President has broken the law and claims the right to continue to break the law. What not to get angry about? It's really not all that complicated — they violated process because they thought they could — though I guess if you get enough law professors together, they wil try to make it so.

Posted by: David Sucher | Dec 21, 2005 9:41:23 PM

Hillel: Because what they're engaged in is data mining -- looking for needles in haystacks. The applications for approval of such dragnets would never satisfy even FISA's fairly broad standards -- and so the FISA Court was a nonstarter. See http://balkin.blogspot.com/2005/12/another-reason-why-aumf-argument-is.html. Posner argues in the Post today that such data mining is critically important, and that FISA should be amended to permit it. I don't know whether that's right -- strikes me as a very difficult and momentous line to cross. But that's the policy debate that ought to have had occurred in Congress. Instead, this Administration (knowing that even a super-compliant Congress after 9/11 would be wary of going as far as Posner proposes) simply decided to break the law, citing a Commander-in-Chief override.

Posted by: Marty Lederman | Dec 21, 2005 6:24:42 AM


First, I think you misconstrue Levin. I don't think he meant to imply that there is nothing to this issue other than partisanship, though he did suggest that it is useless for partisan purposes. I don't take his question in this post to be rhetorical--as if to say that given that the FISA court is a rubber stamp, there can't possibly be any reason for the tumult. Rather, I think he was asking readers what they think the reason might be.

Regardless of how to read Levin's posts, your suggestion that this is "really about" Democrats wanting to "burn Bush" misses the point. It is certainly partly about that. But an issue may be about partisan politics and also about politics--in the sense of how we govern ourselves--and ethics. Watergate was partly about partisan attacks on Nixon; it was also about serious political and ethical questions about abuse of executive power. Monicagate was partly a tool of partisan attacks on Clinton; it was also about shameful behavior of a President. Likewise, the current eavesdropping issue is partly a tool of partisan attack on a politically vulnerable President; it is also about abuse of executive power and disrespect for the Constitution. That is why it strikes more of a chord with the public than, say, an attack on the President for bad Latin American policy, which (assuming the policy is bad) doesn't strike a chord with Americans.

Posted by: Law Student | Dec 20, 2005 11:54:56 PM

I see that Mr. Levin has already made my point in a previous post of his own. My apologies for not reading through all the related posts.

Posted by: md | Dec 20, 2005 7:45:44 PM

Let's get real and get past what Mr. Levin's question is really about. Democrats want to burn Bush. Republicans don't. We've already heard enough and read enough to know that this is a political loser for Democrats. There are more than enough legal/technical niceties (see Orin Kerr, response by Tom Smith et al.) to ruminate and split hairs about until the cows come home. Forget it, Mr. Levin. This will not be the political stake to which President Bush will be tied and burned. Pick another target...I'm sure you'll find one.

Posted by: md | Dec 20, 2005 7:40:03 PM

Professor Levin:

I disagree with Fred D that the difference between circumventing FISA and going to the FISA court is the difference between "loose oversight" and "complete lack of oversight." That difference is too minor to be a morally/politically relevant distinction. It looks in the wrong direction.

The harm of avoiding the FISA Court even it would have given the President exactly what he has gotten without out is dignitary harm, in the following two ways:

1) It harms the dignity of those (we know not whom) whose privacy has been invaded without procedural safeguards;
2) It harms the dignity of those who care about separation of powers, regardless of whether separation makes a difference in a specific instance.

An illustrative analogy: D admits to having committed murder and describes the nature of the crime in such detail as to leave no doubt that his confession is true. Suppose this happens frequently, thousands of times per year. Suppose that the executive decides that rather than enudure the expense of trial, he will just start secretly locking people like D up. Suppose further that the executive conducts this program of secret detention with such rigor, that he achieves the same results that he would have had he bothered with trials/plea bargains. The reasons this is wrong is because it offends the individual dignity of people like D and those of us who care that the executive adhere to a good faith interpretation of the Constitution regardless of results.

Posted by: Law student | Dec 20, 2005 7:06:13 PM

To address your point more directly, I don't think that just because the executive got what they ASKED FOR almost every time from the FISA, it doesn't follow that the executive could get everything the WANT from the court. A lot of deference does not equal absolute deference and at some point, even the FISA court might say "no" to what the executive wanted, if what they wanted was too much. And the fact that there were actually a tiny, tiny number of times that the court said "no" shows that it is likely that even that court has its limits, even if they are way out there. Loose oversight is not always a complete lack of oversight.

Posted by: Fred D | Dec 20, 2005 4:57:32 PM

First of all, even if it was pretty much a rubber stamp, the ability to refuse if it got really bad (trying to snoop on John Kerry during the election, for instance) could still be there. Second, him not going through the other branches is still bad even if the other branches were giving him a whole lot of leeway for the precedent it sets about the executive being above the law.

Also, I should have said that it doesn't seem as if he had any LEGITIMATE reason to not go through the process. In fact, he may have pleanty of reasons to do what he did. A few examples could be that they were monitoring people he shouldn't be monitoring, trying to take more power from the other branchs/some idea about restoring power to the executive, or perhaps just massive incompetence.

Posted by: Fred D | Dec 20, 2005 4:37:00 PM


The point of my question is that you effectively already HAD a king under the FISA system (if Toobin is right). If there was "no reason" for him to do what he did -- i.e. he could have gotten the same results by going through FISA -- then wasn't there also "no reason" (beyond the important, but merely technical, legal question) NOT to do what he did?

Posted by: Hillel Levin | Dec 20, 2005 4:28:11 PM

Maybe it's that he is trying to get out of oversight from the other two branches of government. He broke a law written by the congress requiring him to get judicial oversight. As your numbers point out, there was absolutely NO good reason to do what he did. It makes mny of us very uneasy when the executive branch breaks the law and doesn't respect the seperation of powers, especially when they have a pattern of secrecy and intimidation.
I don't want a king.

Posted by: Fred D | Dec 20, 2005 4:24:50 PM

That's certainly possible. But when you have a track record of 19,000+ to 5, it is really difficult to imagine that FISA would prevent the vast majority of whatever it is the president was doing here. But your point is well taken.

Posted by: Hillel Levin | Dec 20, 2005 4:18:19 PM

Wouldn't it indicate that the unauthorized searches were either far greater in scope or more tenenously premised than the 19 thousand?

Posted by: Bart Motes | Dec 20, 2005 4:16:10 PM

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