« Really Outdated Programs | Main | The Enemy Within »

Alito and the Wiretaps

I have to complain -- I think the left blogosphere generally is going too easy on Bush on the domestic eavesdropping. I keep seeing it referred to -- for example, in Juliette Kayem"s fine post here -- as a violation of a "statutory prohibition," implying that what Bush violated was the Foreign Intelligence Surveillance Act (FISA).

But it was more than that. FISA isn’t the law that prohibits domestic surveillance without a warrant. It’s the Fourth Amendment to the Constitution that does that. FISA is simply the structure by which we accomodate the need for quick turnaround and total secrecy in foreign intelligence-gathering to the Fourth Amendment protection against "unreasonable" domestic searches and requirement of a warrant. To operate outside of FISA is simply and directly to contravene the letter of the Fourth Amendment.

We’re told that the president obtained a "classified" legal opinion claiming that some combination of the Commander-in-Chief power and the congressional resolution authorizing use of force after 9/11 allowed him to do so. If this classified John Yoo special gives the president the authority to contravene the Fourth Amendment, then the same presumably applies to the First, the Second, the Eighth, the 22d, etc.

This is not complicated law. Two days before the Watergate break-in in 1972, the Supreme Court ruled 8-0 in the Keith case that, "The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch without the detached judgment of a neutral magistrate." The Nixon administration argument rejected in Keith was quite similar to the Bush argument: that a threat to national security existed (in this case, posed by the White Panther party, whose leader found a more effective means of subversion later by becoming the manager of the Detroit proto-punk band MC5) and vague language in a crime control statute (since superseded by FISA) gave the President the authority to conduct warrantless surveillance. (Justice Rehnquist did not participate in the case because he had been part of the Nixon team crafting the rejected argument.) Keith does not deal with foreign threats, but the fact that a foreign threat may require domestic surveillance is exactly why FISA was enacted. (An interesting history of the case, which involves many other questions as well as one of the great appelate judges of modern times, Damon Keith, can be found here.)

I did mention Alito, which is probably why you’ve read this far. Here’s where Alito fits in: My brother-in-law, an actual attorney, called my attention to another case in the same line as Keith: Mitchell v. Forsyth. This case also flows from Nixon-era wiretapping, but wasn’t decided until 1985. It’s mainly relevant to the question of executive-branch immunity. The Court found that Attorney General Mitchell enjoyed qualified immunity from lawsuits or prosecution for the wiretaps, but only because the constitutional issue had not been clear at the time of the wiretaps, when Keith had not yet been decided

The Reagan administration argued for much more, that the attorney general should have absolute immunity whenever he was performing a national security function. This sounds similar to the Yoo theory that the president can do anything whenever he puts on his special "commander-in-chief" hat. The Court rejected that argument, finding that "Petitioner [the government] points to no historical or common-law basis for absolute immunity for officers carrying out tasks essential to national security."

My brother-in-law noted that the case identifies the lawyers involved as follows: "Deputy Solicitor General Bator argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Acting Assistant Attorney General Willard, Samuel A. Alito, Jr., Barbara L. Herwig, Gorden W. Daiger, and Larry L. Gregg." Given that Alito is the first working lawyer listed -- as opposed to SG, Deputy SG, AAG -- and the others are not in alphabetical order, it’s probably a good guess that he drafted the brief arguing for absolute immunity.

Alito’s views of executive power should be a major, major topic at the hearings.

Posted by Mark Schmitt on December 19, 2005 | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Alito and the Wiretaps:

» Let's Get Serious from Medley
Jonathan Alter at Newsweek explains things nice and slow, so that perhaps even the wingiest of wingnuts will understand: President Bush came out swinging on Snoopgate—he made it seem as if those who didn’t agree... [Read More]

Tracked on Dec 20, 2005 6:51:22 AM

» MP3 download, Music CD, Online music from Digital Sheet Music Downloads from Supermusiconline.info
Download the sheet music for your current favorites and explore our ... Download sheet music for Grammy®-winning and related titles, composers, and artists... [Read More]

Tracked on Mar 8, 2006 7:54:48 PM

» Cell Phones from mobilebum.info
News and ... Sep News of Safety phones, new cell phone phones Cell time ... [Read More]

Tracked on Apr 8, 2006 5:27:37 PM

» Most popular words 2006: from Reader's Favorites at Scientific American
The articles includes Editor's Favorites, top e-mailed stories, and most popular articles. ... Babies Can Learn Words as Early as 10 Months ... [Read More]

Tracked on Apr 13, 2006 8:34:01 AM

» Drugs & Supplements from Drug Information and Supplement Information

Tracked on Apr 14, 2006 9:08:20 AM

» Diabetes Up, Obesity to Blame from study shows obesity
study shows obesity as a leading culprit in the fight against diabetes in America. [Read More]

Tracked on Apr 28, 2006 5:38:27 PM

» The Interactive NGC Catalog Online from Official Catalog
The Interactive NGC Catalog Online. This is the interactive NGC (and IC, and Messier) catalog at SEDS, based on the famous NGC 2000.0 by RW Sinnott of Sky ... [Read More]

Tracked on Apr 30, 2006 4:11:22 PM

BEST OF MP3 MUSIC, SOUNDTRACKS, COLLECTIONS AND FULL ALBUMS. ... 17.04.2006 Silent Voices Silent Voices: Silent Voices - Full Album: Building Up The Apathy ... [Read More]

Tracked on May 1, 2006 12:24:15 AM

» US economy picked up speed in Q1 from grew at its strongest
economy grew at its strongest rate in more than two years during the first quarter of 2006. [Read More]

Tracked on May 7, 2006 8:04:24 AM

» Advanced MP3 Search Download from MP3 Music - Peoplesound
Advanced MP3 Search download page. Music search software for people who frequently search for music... [Read More]

Tracked on May 8, 2006 2:40:48 PM

» Search in Directory: christian conference from Directory Map
Directory of hundreds of search engines, organised by country and topic. [Read More]

Tracked on May 25, 2006 7:27:49 AM

» Dictionary Search Page from Dictionary Search
An unabridged dictionary from aalii to zymurgy, including a pronunciation guide... [Read More]

Tracked on May 26, 2006 2:48:51 PM

» Die Schweizer Suchmaschine from dir.pogovorim.com
Suchmaschine fr die Schweiz mit regionaler Volltextsuche (im domain und in weiteren Sites mit... [Read More]

Tracked on May 28, 2006 12:33:17 AM

» Cambridge Dictionaries Online: christian conference from online dictonary
Free online dictionary from Cambridge University Press [Read More]

Tracked on May 28, 2006 1:28:35 AM

» Hollywood Creative Directory from Directory Map
Contact information for the film, television and new media industries. [Read More]

Tracked on May 28, 2006 4:56:21 AM

» Statins Prove Life-saving In Patients With Acute Coronary Syndromes from acute coronary
statin therapy while in the hospital for acute coronary syndromes (ACS) have a significantly greater [Read More]

Tracked on May 29, 2006 4:19:15 AM

» Canadian Federal Court of Appeal to Hear U.S. War Resister Refugee Cases from of the reservations
phase of the reservations for OBCs which is most appropriately described as Mandal II, is not something..... [Read More]

Tracked on Jun 1, 2006 5:16:16 AM

» News Online from JapanHorse
Features weekly articles, archives to past issues, and timelines of scientific importance. [Read More]

Tracked on Jun 2, 2006 9:12:43 PM

» qcarbo 1 shot totally tropical flavor from Detox process
The good news is that the detox process may enhance your body's ability to metabolize the medication and you may soon require less. But in the meantime, ... [Read More]

Tracked on Jun 8, 2006 4:19:14 PM

» Carnegie Mellon Researchers Discover New Cell Properties from extremely rare
accelerates the aging process by about seven times the normal rate. [click link for full article] [Read More]

Tracked on Jul 2, 2006 3:16:41 AM

» USA towns: Baldwin from USA MAP
USA - cities, towns and villages of the United States. Extensive business listings, community info, coupons and classified ads for USA cities, ... [Read More]

Tracked on Jul 21, 2006 6:10:35 PM

» New ESRI Instructional Series Podcast: Tips for Writing Python Scripts from and system tools
tips for improving the performance of your Python scripts and how to use ArcGIS geoprocessing and system tools with [Read More]

Tracked on Jul 24, 2006 11:28:47 PM

» Mental health crime link studied from severe mental
with severe mental illness are responsible for one in 20 violent crimes, researchers say. [Read More]

Tracked on Jul 31, 2006 10:23:30 PM

» Bvlgari from Bvlgari Watches
Great Saving On Bvlgari Watches Bulgari Watch Bvlgari Assioma, Bulgari Zero1, Bulgari Watch Tubagas, Bvlgari Diagono Aluminium, ... [Read More]

Tracked on Aug 4, 2006 8:41:53 AM

» ESRI Announces Enhanced Standards Support from to Open and Interoperable
ommitment to Open and Interoperable GIS Platform [Read More]

Tracked on Aug 7, 2006 8:15:28 PM

» Bvlgari from Bvlgari Watches
Great Saving On Bvlgari Watches Bulgari Watch Bvlgari Assioma, Bulgari Zero1, Bulgari Watch Tubagas, Bvlgari Diagono Aluminium, ... [Read More]

Tracked on Aug 9, 2006 9:08:11 AM

» Internet Home from For All
... Computers & Internet News · History of Computers & Internet ... 1995-2006 [Read More]

Tracked on Aug 13, 2006 10:13:29 AM

» Энциклопедия рунета from Internet Search
Выберите интересующий Вас раздел: 0-9 B C D E F G H I L M O R S T V W А Б В Г Д Е Ж З И К Л М Н О П Р С Т У Ф Х Ц Ч Ш Щ Э Ю Я TOP 20... [Read More]

Tracked on Aug 14, 2006 12:17:49 PM

» Brandewie joins ActivIdentity from bumps that I
security deployments today make him the ideal person to lead the growth of our new global Public Sector Solutions group,” [Read More]

Tracked on Aug 14, 2006 11:10:59 PM

» Ru-Энциклопедия from Words 2005-2006
Most Popular Words from Internet... [Read More]

Tracked on Aug 16, 2006 2:38:13 PM


I deeply dislike all Chicken Little comments, and I am impatient with the inexactitude of "fascist" and "Nazi" used as general expressions of opprobrium. And that is why I wish this week I did not keep thinking of Hitler's use of Article 48, the so-called emergency clause to safeguard to public safety, to abrogate what was left of the Weimar Republic (and history has been happy to blame the Weimar Republic for its demise).


Posted by: | Dec 19, 2005 4:34:36 PM

Well, is there any evidence that this is Alito's personal view? During the Jones litigation, Clinton's team (and not just his 'private' lawyers IIRC) argued that POTUS was not subject to litigation while in office for actions taken prior to assuming office. Would those officials be expected to defend that argument as their own opinion?

Posted by: otto | Dec 19, 2005 5:38:46 PM

Yes. If one of "those officials" was later nominated for the SC, it would be entirely appropriate to establish for the public record whether the position in the brief represents their own professional opinion about the scope of executive power. As Mark says, these are fundamental matters that impact the health of the republic. We have a right to know.

Posted by: fnook | Dec 19, 2005 8:29:38 PM


You're right that this is a big deal--to me, it's more significant than any other accusation against the Bush administration.

I agree that FISA implements a constitutional principle. Other aspects of the Constitution have been violated by this administration and by many of its predecessors. However, violating a criminal statute is different from acting against the Constitution; it requires a different response.

If a president violates the Constitution, a court should strike down his policy and order a remedy. If he lies, the people should weigh his mendacity at the next election. If he violates international law, the US should be held accountable, and we Americans should strongly express our displeasure. In other words, all of these presidential misbehaviors are serious, but they can be addressed through the normal mechanisms of constitutional democracy and diplomacy (debates, votes, lawsuits, UN resolutions). In each case, it is ultimately citizens who must respond. One of the reasons that I haven't welcomed criminal investigations of the Bush administration is that they substitute for citizen action.

However, to violate a US statute is different. Statutes are not vague, like constitutional principles. They do not apply to nations or governments. They clearly assign responsibility to individuals. You either violate a statute or you don't. If you happen to be the president when you break a law, then you must be impeached before you can be indicted. That is why the impeachment clause talks of "high crimes and misdemeanors."

I don't think it's possible to tell without a full investigation whether the domestic wiretaps violated FISA. There is also some debate about whether FISA was constitutional in its limitation on the president's powers. If the wiretaps did violate FISA, and if FISA is constitutional, then the wiretaps were criminal. That is different from simply violating the Fourth Amendment.

Powerful people should be afraid to do things that are defined as felonies, even when they act in secret. If they break clear laws with impunity, then we have no hope of controlling them.

Posted by: Peter Levine | Dec 19, 2005 9:02:08 PM

We found this President lied to us about war and WMD. He prevents proper investigations and interfers with it.

Why would we trust him to spy for us to keep us safe from anything. We have never been safe or free in his world of terror, fear, and lies.

This President wants absolute power to do as he pleases with every freedom and law we have to this date...using "terrorism" as his mantle.

He is a traitor who thinks the Constitution is just a piece of paper. Any President would be impeached for such a comment. He is lawless as to his duty as President taking powers not his.

This President doesn't repect our law or our Constitution as he swore under oath. He committed perjury many times. He should removed and tried for his many criminal acts against our country and its citizens (911, Katrina, debt, etc.).

Posted by: Judy Stevens | Dec 20, 2005 1:17:26 AM

Over at my tiny corner of blogtopia (hail skippy) I never miss the chance to describe the domestic spying (never "eavesdropping") as unconstitutional.

Alito’s views of executive power should be a major, major topic at the hearings.

And this is where Specter can redeem himself a little bit. If he doesn't try to squelch that line of questioning by saying that he's talked privately with Alito and found him to be a man of blah blah blah ... then he'll be showing us at least a little something. I expect the reverse to happen.

Posted by: eRobin | Dec 28, 2005 11:23:50 AM

I guess I'm in that very small boat of people who still chooses to believe that Bush is trying to act with the best for our country in his mind. It seems that people forget that he is a human being just like us all. He has weaknesses, and struggles to know what to do in some difficult situations. It is easy to trash him when we have 20/20 vision after the situations have passed. I personally think his job would be more stress than I would ever want, and will continue to give him my respect as long as I can.

Posted by: Narnia Nerd | Jan 5, 2006 12:16:32 PM

Honestly, are you stupid, ignorant or dishonest? You cite bring up the 4th Amendment as being a separate and more important law, supposedly violated. THen you discuss the Keith case, in which the court did find the unwarratned wiretapping illegal, but very specifically said that this is not being applied to foreign intelligence gathering. You did note that. But then say that that is why FISA was enacted. YOU SHIFTED THE ENTIRE ARGUEMNT THERE. FIsa is NOT the fourth amendment. Nor can congress alter the fourth amendment, or the executive power for that matter. The fourth amendment is not violated.

Posted by: Nick Wilder | Feb 17, 2006 8:40:53 AM

Toi la dan CNTT nhung van chua biet nhieu ve linh vuc nay lam.Toi muon duoc nang cao kien thuc thi toi phai lam gi?Mong cac ban chi giup

Posted by: kinhbac | May 4, 2006 1:50:30 AM

If you were going to buy a golf club, you wouldn't walk into a store and buy the first one you see, would you? Of course

not; especially if you want to improve your golf game! You'll want to hold the club, take some practice swings, hit some

balls if the store has a practice spot, and look at the price, of course. If you are considering buying running shoes,

you need to go through a similar process and take the time to find the perfect shoe.

Posted by: shoe stretchers | Mar 20, 2007 7:46:22 PM