Defining Appeasement

As I discussed on my previous post, many neoconservatives and other super hawks these days are forever warning against appeasement, which they define so broadly as to include almost any diplomacy, negotiations or compromise. The only alternative to appeasement is war which, if followed seriously, would require us to go to war over almost any development we dislike.

Such arguments are taken well beyond absurdity. Reluctance to start a war with Iran is appeasement. Before that, reluctance to invade Iraq and overthrow Saddam Hussein was appeasement. I recall in 1990, as the Soviet Union has let go of all Eastern Europe but had not yet collapsed, William Saffire warned that allowing its retreat to stop at the old Soviet borders and not insisting that it give up Latvia, Estonia and Lithuania would be appeasement. And the phenomenon is not new. At the end of World War II, when the Japanese resisted calls for unconditional surrender and asked to be allowed to keep their emporer, some people feared that that would be appeasement.

Super hawks don't seem to recognize that this is exactly the sort of behavior we warn must not be appeased when other countries do it. It is all too easy to imagine such people as advisors to Hitler in 1938. After all, they would say, Sudetenland is historically and ethnically German, it was wrongfully given to Czechoslovakia, which is holding the Sudetenland against the wishes of its German inhabitants. Surely to accept anything less than all of Sudetenland would be craven appeasement.

So, then, if not all negotiations and compromises are appeasement, how do we tell when they are? My initial thought was that appeasement involves inappropriate concessions, but the objection here is obvious. Anyone can regard any sort of concessions as inappropriate. A more exact definition is needed. Slightly better is, if both sides are making concessions, what is happening is diplomacy. If the concessions are on one side, that is appeasement. But that, too, is overly subjective. In most compromises, both sides walk away feeling that they have given more than they got, and hardliners invariably believe that diplomats have given away the whole store. So a better definition would be, if each concession simply leads to calls for more concessions, and if further concessions are granted, that is appeasement. In other words, appeasement is not a single act, but an ongoing process. If is not always immediately apparent whether a negotiated compromise is appropriate or appeasement.

The super hawk argument is, in effect, that we should never negotiate and never make any kind of compromise because it might turn out to be appeasement. There is never any real harm in going to war, because each war postponed now will simply return as a larger war later, and ultimately as World War II. But so crudely mechanistic view is nothing short of absurd. Most aggressors are not Hitler. Most conflicts are not World War II waiting to happen. And, for the world's sole super power, if a compromise turns out to be the beginning of appeasement, the mistake is usually easier to correct than launching a war that turns out to be a mistake.

Why Bush Really Needs to Negotiate with Evil

The war in Lebanon continues to cause great damage to Lebanon and do not a thing to stop the Katyusha attacks on Israel. The reason for this is obvious to all but the willfully dense. Hezbollah is deeply entrenched in southern Lebanon, interspersed and supported by the local population. Its Katyushas are small, mobile, and easily hidden. Massive airstrikes are not going to stop the attacks. Attacking Lebanon to force the Lebanese army to crack down on Hezbollah will not work because the Lebanese army lacks the might to do so. Expelling the entire population from the border will be somewhat more effective. If most Hezbollah rockets have a range of only a few miles, then driving the entire population back for a few miles will prevent most attacks. If the only options were military, this might be the best not-very-satisfactory compromise available. Israel uproots a relatively small number of people, and rocket attacks diminish but do not altogether cease.

But if the goal is to stop rocket attacks altogether, then things get very nasty fast. If, as has been reported, Hezbollah has rockets with ranges up to 72 kilometers, then pushing all the Shiites of Lebanon that far away will be a much larger, longer, more brutal operation. And this begs the question of who will move in to ensure that Hezbollah does not come back. And it certainly seems a safe bet that such upheaval and displacement will necessarily reignite Lebanon's civil war, with who knows what effect.

So, what are our other options. George Bush proposed an obvious one; Syria needs to get Hezbollah to stop that shit. We do not actually know whether Syria or Iran ordered Hezbollah to start the attacks, but given the extent to which Hezbollah relies on Iranian guns and money, via Syria, either country could certainly rein in its obstreperous ally and make them stop that shit. Of course, similar logic appies to us. Given Israel's dependence on U.S. money and arms, we could easily rein in our obstreperous ally and make them stop their shit. So it would seem logical for us to sit down with Syria and Iran and cut some sort of deal -- you rein in our ally and we'll rein in ours.

Of course, the Bush administration refused to do that. "We don't negotiate with evil; we defeat it." This administration lives in mortal terror of "appeasement," defined as anything less than getting 100% of what we want. Diplomacy, negotiations, compromises, treaties, all are nothing but appeasement. Indeed, tolerating the existence of any goverment we dislike is appeasement. By this standard, the Cold War was one long exercise in appeasement -- not only did we make no attempt to overthrow the Soviet government, we actually had diplomatic relations, engaged in face-to-face negotiations, established treaties and attended summits. If neoconservative fears of appeasement were accurate, the Soviets would long since have conquered the world, being faced with such wimps.

By refusing to enter into any negotiations with the governments of Syria or Iran and by making clear that he considers them illegitimate and will settle for nothing less than their overthrow, Bush removes all incentive either government could have to behave better. When one party's policy is, "If you don't drop dead, we'll kill you," is it any surprise that the other party is not interested? Conservative hawks often criticize liberals as naive for wanting to conduct foreign policy with the carrot only; don't they realize carrots are only effective if backed by sticks? But the reverse also applies. Sticks are far more effective if supplemented with carrots. If a government gains nothing by behaving well, why bother? More than that, if the Bush administration refused to react positively to any positive behavior by a rival, he creates a positive incentive for that rival to act badly. We try to force concessions by being tough; is it any wonder that other countries do the same. Bush wants Iran to give up nuclear weapons, but refuses to offer any security guaranties. Is it any wonder that the Iranians conclude that nuclear weapons are the best security guarantee?

I suppose that the Bushies might argue that every stick implies a carrot. Our stick is the threat of military force; our carrot is refraining from using military force. But right now our stick is not very credible. Given the mess we have gotten into in Iraq, invading Iran would be such madness that (so far as I can tell) even neoconservatives are not advocating it. Airstrikes are at least doable, but if the U.S. attackes Iran by air, the Iranian government is likely to tell its Shiite allies in Iraq to take off the gloves in dealing with the American forces. So if Bush refuses to use the carrot and has no credible stick, where does that leave him? Mouthing empty platitudes.

There is one other reason why Bush needs to swallow his pride and start talking to Syria and Iran so we can all pressure our allies to stop that shit. Contrary to what Bush and some of his followers believe, good and evil are not immutable labels that stick to us no matter what. Or to put it differently, evil is not what we are, but what we do. When Al Qaeda terrorists flew jetliners into the World Trade Center, that was evil. When Sunni extremists in Iraq set of bombs in public places to blow up as many civilians as possible that is evil. When Shiite death squads murder men for having Sunni names, that is evil. When Hezbollah kidnapped Israeli soldiers and shoots aimless rockets and Israeli cities that, too, is evil. But when Israel expels the people of southern Lebanon en masse and destroys whole villages, the bare fact that it is Israel acting does not make those actions good. Just how much carnage does Israel have to inflict on Lebanon before Bush recognizes that we, too, are capable of evil?

Krauthammer's Latest Outrage

This blog will probably criticize Charles Krauthammer on many occasions for no better reason than that my local newspaper carries his column. Although Krauthammer writes interesting columns on medical ethics and is capable of being reasonable on other matters, on questions of foreign policy in general and Israel in particular, Krauthammer is either insane or a shameless liar. His most recent column is a particlarly egregious example.

Writing in defense of Israel's recent all-out war on Lebanon in general and Hezbollah in particular, Krauthammer says, "The majority of Lebanese -- Christian, Druze, Sunni Muslim and secular -- bitterly resent their country being hijacked by Hezbollah and turned into a war zone."

This is true so far as it goes. Christian, Sunni, Druze and secular Lebanese do oppose Hezbollah and these groups, combined, are a majority of Lebanese. But Krauthammer neglects to mention that Hezbollah does have the support of one group of Lebanese, the Shiites. And the Shiites, though a minority, are a plurality, i.e., the largest single religious group, making up about 40% of the population. Hezbollah remains popular with the Shiites of Lebanon, because it drove Israel out of southern Lebanon, because of it gives once-excluded Shiites a place in Lebanese politics, because of the social services it provides, because of its honesty and lack of corruption, and because it keeps the people in the territory it controls in the constant grip of its propaganda. Any country in which 40% of the population support an independent militia outside of government control and 60% oppose it has obvious problems beyond its ability to resolve.

Krauthammer ignores the popularity of Hezbollah in southern Lebanon and offers the following recommendation. "Israel liberates south Lebanon and gives it back to the Lebanese. It starts by preparing the ground with air power, just as the Gulf War began with a 40-day air campaign. . . . Just as in Kuwait 1991, what must follow the air campaign is a land invasion to clear the ground and expel the occupier."

Surely he does not believe his own words! Since Hezbollah has the overwhelming support of the people of southern Lebanon, to "liberate" the area from its Hezbollah effectively means "liberating" southern Lebanon from its inhabitants. Expelling the "occupier" is nothing like expelling the invading Iraqi army from Kuwait. Neither will it be like Israel's 1982 invasion of Lebanon, in which it easily expelled the PLO, which was also an alien presence. The Shiites of southern Lebanon so hated the PLO presence that they greeted the Israeli army as liberators and showered them with rose petals and rice. Today, Hezbollah is indistiguishable from the general population, which gives it their support. Expelling the "invader" means expelling the whole population.

And there is ample evidence that the Israelis understand this; hence their practice of dropping leaflets warning the inhabitants to flee, following by bombing campaigns that destroy entire villages. (Touted as examples of the Israelis' respect for life; they warn people to flee before laying waste to the area). Indeed, the evidence is growing that Israel intends to expell everyone south of the Litani River (some 300,000 people) to creat an uninhabited 30 mile buffer zone. But this will still not be good enough. At least, it is my understanding that Hezbollah has rockets with a range greater than 30 miles and will still be able to hit Israel even after being driven back past the Litani River. So what is Israel to do after that? "Liberate" Lebanon from its Shiite population all the way from the border to Beirut? And, if so, who is to move into southern Lebanon to keep Hezbollah from re-infiltrating? I am not suggesting that Israel is contemplating anything so drastic as all that, only that no military action any less drastic will remove the threat of rockets altogether.

Krauthammer says that Israel is the "only country" that can defeat Hezbollah because the Lebanese army is too weak, Europe is too insular, and the United States has had a "Lebanon allergy" ever since Hezbollah blew up a Marine compound last time we intervened. He neglects to mention that Israel's last attempt to defeat Hezbollah was an 18 year occupation and guerrilla war in which Israel eventually withdrew, defeated. Since defeating Hezbollah today will essentially mean crushing and subjugating the 40% of all Lebanese who are Shiite that, too, will be a long, dirty, messy unconventional war of the kind that Israel, too, is "allergic" to.

So that leaves just one other radical suggestion. Try diplomacy. Reasonable commentators differ on whether Syria and Iran are behind Hezbollah's initial provocation. But given the amount of armanents these two countries supply Hezbollah, surely they could rein in their unruly ally. Of course, this would mean actually talking to the governments of Syria and Iran and dropping the stance of "We don't negotiate with evil; we defeat it." Bush (and for that matter, Krauthammer) should give some thought as to why talking to these hostile regimes is so much worse than allowning Israel's destruction of Lebanon to continue. How many Lebanese can Israel drive from their homes before that, too, becomes "evil"?

Oh, yes, and as to the original question as to whether Krauthammer's column is lying or honest lunacy? My bet is on lying.

The One Case that Questions FISA

Notwithstanding my previous post, there is one case that does seem to imply that FISA unconstitutionally encroaches on the President’s power. That case is In re Sealed Case, 310 F.3d 717 (Foreign In. Surve. Ct.Rev. 2002). This is a troubling case, not only for opponents of Bush, but for his supporters as well, because, while hinting that FISA may be unconstitutional, it generally assumes otherwise.

The Sealed Case occurred when the FISA court granted an application for a warrant to wiretap some Al Qaeda suspects, but placed conditions on the warrant to ensure that it was used for intelligence gathering and was not controlled or directed by officials with the intent to prosecute. The government appealed the restrictions, the only appeal ever made in the history of the FISA court.

FISA permits warrants of U.S. persons (citizens or permanent legal residents) only if they are agents of foreign powers (including international terrorist organizations), and defines an “agent” of a foreign power as one who engages in criminal activity on that power’s behalf. Since FISA defines such agency as inherently criminal, the court held that the distinction between intelligence gathering and prosecution is no longer logical and that no such distinction (as the Truong case made in the case of an unwarranted wiretap) is required. Although in 1995 the Justice Department began establishing a “wall” between criminal and intelligence activities, the court ruled that such a policy was a matter of executive discretion and not a part of the FISA statute and that the court therefore had no authority under the statute to require such a wall. The appeals court also ruled that this “may” be unconstitutional overreaching by the FISA court and might violate the separation of powers because the court was trying to dictate executive procedure (p. 731). The ruling stopped short of actually saying the FISA court’s actions were unconstitutional, but it strongly implied as much.

On the other hand, since FISA (as modified by the Patriot Act) required that intelligence gathering be a “significant” purpose of the wiretap and note merely a “purpose,” the court held that a FISA wiretap could not be used solely for prosecution. The government had to have some other purpose than just prosecution, such as thwarting an ongoing terrorist conspiracy, and some non-prosecutorial options. (The ruling did not contain any hints as to what such options might be). The case then spends some time discussing the difference between a FISA warrant and a regular Title III criminal warrant and finds that, although the FISA procedure is less stringent than the criminal procedure in some respects, it is more stringent in others.

It is then that the decision makes its troubling statement:

[A]ll other courts to have decided the issue [before FISA was enacted] 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. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which supports the government’s contention that FISA searches are reasonable. (p. 742).

The meaning about amplifying the President’s power is clear enough; it means is a FISA warrant automatically sufficient for prosecution as well as intelligence gathering. But what does this decision mean in saying that FISA may not encroach on the President’s inherent power? Does it mean that FISA may not encroach on the President’s authority to engage in warrantless foreign intelligence surveillance? If so, then FISA is necessarily unconstitutional because it does just that. If that is what is meant, the opinion becomes even more troubling afterward. The court concludes that the distinction between intelligence gathering and prosecution is a false dichotomy and that the true distinction should be between ordinary crime and national security. If one combines this with the previous statement, that FISA cannot encroach on the President’s inherent authority of warrantless surveillance, it would logically seem to follow that in cases of foreign intelligence, the executive can not only wiretap but prosecute without a warrant. The case then becomes truly alarming as it discusses certain “extraordinary situations” in which the government’s “special needs, beyond the normal need for law enforcement” permit not only warrantless, but suspicionless searches (p. 745). And what greater emergency, more extraordinary situation, and greater threat could there be than the September 11 attack?

This would appear to come close to saying the President can not only wiretap without a warrant for prosecution as well as intelligence gathering, he can wiretap anyone he wants without a warrant and without even suspicion! But the court backs off from that. Most suspicionless searches the Supreme Court has allowed have been roadblocks and checkpoints. A wiretap is more invasive. The court then backs off from the entire alarming line of speculation and rules that even though the standard for obtaining a FISA wiretap are less stringent than those for obtaining a criminal wiretap, they met the Fourth Amendment standards of reasonableness “[e]ven without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance.” (p. 746).

So the issue of the President’s “inherent authority” is left hanging in the air, satisfying no one. If the court does mean to rule FISA unconstitutional, why doesn’t it come out and say so? In fact, as noted above, Sealed Case cannot quite bring itself even to say that the court acted unconstitutionally in dictating executive procedures, a much less drastic ruling. What the court means in discussing the President’s “inherent authority” is maddeningly unclear. Bush’s supporters naturally cite this brief discussion as proof that FISA is unconstitutional. Critics generally dismiss this as dictum (i.e., an opinion thrown in that is not legally binding because the issue is not before the court).

Two other interpretations seem plausible to me. The court may simply mean that FISA, in requiring a warrant, may not encroach on the President’s authority to engage in foreign intelligence surveillance, i.e., that the FISA court must grant a warrant if the President would have authority to engage in warrantless surveillance before FISA was passed. Or it may be an invitation to the President to challenge the constitutionality of FISA. If so, the President so far has not taken up the invitation, perhaps because he doubts that the Supreme Court would support his position.

Court Decisions After FISA

Since FISA was passed, it has never been challenged in court as an unconstitutional infringement on executive power, and therefore no court has ruled on the subject. It has been challenged by defendants, as a violation of the Fourth Amendment, and on various separation of powers grounds that are at least partially relevant to the executive argument.

Although FISA was written during the Cold War in a context of rivalries between nation states, it was never limited to that purpose. From the very start, FISA applied to foreign terrorist organizations as well as to Soviet spies. For instance, two of the earliest cases to address FISA involved arms smuggling to the IRA; U.S. v. Falvey, 540 F.Supp. 1306 (E.D.N.Y. 1982) and U.S. v. Megahey, 553 F.Supp. 1180 (E.D.N.Y. 1982) (links not available; Findlaw only gives access to cases after 1995). It has also been applied to Armenians attacking Turkish targets (U.S. v. Sarkissian, 841 F.2d 959) and even to the anti-Castro Omega-7 (U.S. v. Badia, 827 F.2d 1458).

The judge in Falvey at least partly addressed the issue of the President's inherent power. He commented that FISA was the fifth post-Watergate law passed by Congress restricting the President's "inherent" power in the wake of abuses that had been discovered. He further held that, "I find that Congress has struck a reasonable balance between the government's need for foreign intelligence and the rights of citizens" (p. 1312). Of course, the primary point here was that Congress had not leaned too far in favor of the government, but this also secondarily implies that Congress had not gone too far in restricting the President. The judge further found that, while the government could not use a warrantless wiretap primarily for prosecution, it could use a FISA wiretap primarily for prosecution and did not have to switch to a criminal warrant.

The Megahey found FISA in compliance with the Fourth Amendment and also addressed the separation of powers issue as to whether FISA unconstitutionally involved the courts in foreign policy. Since this case involved international terrorism, the defendants argued that requiring the courts to determine who is and is not a terrorist (as opposed to a freedom fighter) unconstitutionally involves the courts in making foreign policy decisions. The Judge disagreed. He noted that the FISA statute defines terrorism as seeking to acheive political goals through acts that would be criminal if committed in the United States. "These terms hardly call for delicate or sensitive political determinations fraught with foreign policy implications. Rather, they call for findings of objective fact not unlike those made in courtrooms every day." The defendants also questioned whether Article III of the Constitution (the article establishing a the federal judiciary) allows a court that hears on ex parte proceedings, i.e., proceedings in which only one party appears. The judge ruled that federal courts have authority under all cases arising under federal law, and that a "case" simply requires that there be an actual controversy over a real world issue, as opposed to a request for an abstract declaration of law. The judge also dismissed the argument that the FISA court is unconstitutional because FISA judges serve on the panel for seven years when the Constitution requires federal judges to be life tenured. FISA judges are life tenured as federal judges, it is only their service on one particular panel that is temporary, and judges temporarily serve on may other judicial panels as well. The judge also dismissed the argument that FISA judges are being unconstitutionally required to make political decision. (I am not clear how this differs from the argument on foreign policy).

This ruling was made only at the trial level and is therefore not a strong authority. However, the Megahey case was appealed and upheld in the case of U.S. v. Duggan, 743 F.2d 59 (2nd Cir. 1984). The Court of Appeals upheld the decision that deciding whether the statutory definition of international terrorism applies does not require judges to make political decisions. Nor did requiring a FISA warrant to collect foreign intelligence unconstitutionally involve the courts in foreign policy decisions. The FISA court is simply required to verify that the executive made the statutorily required declarations that the wiretap is for legitimate foreign intelligence gathering and, if the target is a U.S. citizen or permanent legal resident, that the declarations are not clearly erroneous. "We agree with Judge Sifton [the trial judge who decided Megahey] that such limited review does not unduly inject the courts into the making of foreign policy." Furthermore, "We regard the procedures fashioned in FISA as constitutionally adequate balancing of the individual's Fourth Amendment rights against the nation's need to obtain foreign intelligence information."

Admittedly, this does not directly address the claim that the President's authority to engage in warrantless wiretapping to gather foreign intelligence cannot be constitutionally restrained. (It would not be in the defendants' interest to raise that issue!) But it does address the complaint of many of Bush's supporters that FISA unconstitutionally causes the courts to overreach by meddling in foreign policy or political decision making.

There are a few other rulings on FISA of less importance. U.S. v. Pelton, 835 F.2d 1067 (4th Cir. 1987) (a case of a former NSA employee selling valuable secrets to the Soviet Union) held that FISA provisions are "reasonable both in relation to the legitimate need of government for intelligence information and protected rights of citizens." U.S. v. Cavanaugh, 807 F.2d 787 (another Soviet spy) again ruled that FISA is not unconstitutional because the judges serve on the FISA panel for only seven years instead of for life, and added for good measure that it was constitutional for the Chief Justice of the Supreme Court to appoint FISA judges instead of the President. Other FISA cases addressed the fine line between intelligence gathering and prosectution and whether a FISA warrant is adequate to prosecute, or whether a criminal warrant is required. None, to repeat, directly addressed the issue of whether FISA unconstitutionally infringes on the President's power, but to the extent that the courts found a "reasonable balance" between the need to gather intelligence and rights of privacy, and to the extent that they found no judicial overreaching, the courts implicitly rejected that argument.

There is, however, one recent case that broadly hints without saying that FISA unconstitutionally infringes on the President. That one will be addressed in my next post

Court Decisions Before FISA

As discussed in my previous post, the U.S. Supreme Court has never addressed the issue of whether the Fourth Amendment requires a warrant for wiretaps used to collect foreign intelligence. The most nearly related Supreme Court case was the 1972 case of U.S. v. U.S. District Court of Eastern Michigan, generally known at the Keith case. That case addressed warrant requirements for domestic security. In 1968 Congress passed the Ominbus Crime Control and Safe Streets Act, which included a section known as "Title III" that set forth the procedure for obtaining wiretap warrants in ordinary criminal cases. However, Congress stated that these requirements did not apply to foreign intelligence or affect the President's constitutional power to protect the United States government from overthrow or other "clear and present danger." The Supreme Court ruled that, although Title III warrant requirements applied only to ordinary crime and not to domestic groups threatening the U.S. government, the Fourth Amendment nonetheless required a warrant to domestic security wiretaps. It rejected the administration's argument that warrants should be required only for prosecution and warrantless surveillance be allowed for domestic surveillance and intelligence gathering. The Supreme Court did rule that the warrant procedure set forth in Title III was statutory and not constitutional and that Congress could, if it wished, set a different or less stringent procedure for domestic security. It expressly declined to rule on whether warrants were required for foreign intelligence.

Although the Supreme Court declined to rule on whether a warrant was required for foreign intelligence wiretaps, various federal appellate courts ruled that it was not. The Supreme Court, in allowing these opinions to stand, implicitly endorsed them. The most oft-quoted pre-FISA decision on foreign surveillance was in the case of U.S. v. Truong, 629 F.2d 908 (4th Cir. 1980) (link not available). This case was actually decided (in 1980) after FISA came into effect, but it dealt with pre-FISA surveillance. This case involved a Vietnamese spy who was receiving secret documents from an employee of the U.S. government. The U.S. government tapped his telephone without a warrant to determine who was giving him classified documents and later wiretapped and electronically monitored the leaker without a warrant. The court ruled that no warrant was required when the object of surveillance was a foreign power, agent or collaberator. If further held that warrantless surveillance was permitted only so long as the "primary purpose" was intelligence gathering. Once the "primary purpose" shifted to criminal prosecution, a warrant was required. In this case, warrantless surveillance continued for 270 days, but the government began discussing prosecution after 90 days. The court therefore suppressed all evidence acquired after the first 90 days.

The distinction between intelligence gathering and criminal prosecution made more sense during the Cold War than it does today. During the Cold War, foreign intelligence gathering usually meant gathering intelligence on nation states (especially the Soviet Union) that were hostile, but were not considered inherently criminal. Not every Soviet citizen or even government member was considered an outlaw in the way that we consider all Al Qaeda members outlaws. The Soviet Union (and many other other hostile countries) openly kept an embassy in the United States with a team of diplomats who openly represented the Soviet government, something it would be unthinkable for Al Qaeda to do. The United States spied on the Soviet Embassy, seeking to learn valuable information about Soviet intentions, but without therefore criminalizing its staff. It was also no secret that many nominal diplomats, acting under a grant of diplomatic immunity, were actually spies. The United States surveilled diplomats from hostile countries to determine which ones were spies but, because they had diplomatic immunity, it could not prosecute them, but only expell them. (Of course, any U.S. citizen providing classified information to the Soviet embassy was a criminal and would be prosecuted). Today, on the other hand, we consider Al Qaeda membership to be criminal per se, no Al Qaeda members openly operate in the United States, and any Al Qaeda member caught in the United States is subject to prosecution. Thus following the Truong decision, it woudl seem to follow that even if the President may constitutionally wiretap Al Qaeda members without a warrant, he would need a warrant to use such wiretaps to prosecute, which is presumably the whole purpose.

To continue, the court also held that although the Fourth Amendment did not require a warrant for searches and seizures in foreign intelligence, it did require such searches to be "reasonable." The argument it addressed was whether the degree of surveillance was "reasonable," but it would logically seem to follow that conducting the surveillance would need to be reasonable in the first place. In this case, for instance, the government learned of the spying activities when an accomplice, who was actually a double agent, informed the U.S. government and showed them the secret documents being passed along. Clearly it was "reasonable" to undertake the wiretap in the firstplace. By a "reasonableness" standard today, surely it would be "reasonable" to wiretap someone whose name was found in an Al Qaeda member's database -- but not "reasonable" to data mine or engage in a fishing expedition.

Finally, and most significantly, the court addressed why a warrant is not required for foreign intelligence.

Few, if any district courts would be truly competent to judge the importance of particular information to the security of the United States or the "probable cause" to demonstrate that the government in fact needs to recover the information from one particular source. Perhaps most crucially, the exective branch not only has superior expertise in the area of foreign policy, it is also designated as the pre-eminent authority in foreign affairs. . . . Just as the separations of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic security surveillance . . . so the separation of powers requires us to acknowledge the principal responsiblity of the Presidenct for foreign affairs and conduct of foreign intelligence surveillance.

This would, indeed, appear to imply that FISA is an unconstitutional infringement on executive power. Yet the court also addresses FISA, which came into effect after the surveillance in this case, in a footnote that appears to imply the opposite. The note comments that FISA requires a warrant only for some types of foreign intelligence, and sets a less stringent standard than a criminal warrant. Since seven judges will regularly hear FISA cases, they may acquire the necessary "expertise" to make such decisions. The footnote then says:

While the Act suggests that it is possible for the executive branch to conduct at least some types of foreign intelligence while being subject to a warrant requirement, the complexity of the statute also suggests that the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balance of the legislative process by Congress and the President. The elaborate structure of the statute demonstrates that the political branches need great flexibility to reach the compromises and formulate the standards which will govern foreign intelligence surveillance. Thus, the Act teaches that it would be unwise for the judiciary, inexpert in foreign intelligence, to attempt to enunciate an equally elaborate structure for core foreign intelligence surveillance under the guise of a constitutional decision.

In simple English, there is no constitutional requirement of a warrant in foreign surveillance, and the judiciary has no business imposing one. This does not (necessarily) preclude Congress from imposing a statutory requirement.

My next post will address various court decisions made after FISA was enacted.

FISA and Inherent Presidential Authority

There has been much discussion ever since Bush's warrantless spying was revealed whether FISA unconstitutionally infringes on the President's "inherent authority" to make warrantless wiretaps to gather foreign intelligence. This issue has never been raised in court. Before FISA was passed, federal appellate courts uniformly agreed that the President has the "inherent authority" to engage in warrentless wiretapping in matters of foreign intelligence. The Supreme Court has never addressed the issue and, indeed, expressly declined to determine whether a warrant was required to wiretap in cases of foreign intelligence. However, by declining to review any appellate court decisions, the Supreme Court implicitly endorsed them.

But it does not logically follow that FISA unconstitutionally infringes on the President's inherent authority. "Inherent authority" is an ambiguous phrase with two meanings best described by Walter Dellinger:

One meaning would refer to what the president has authority to do on his own in the fields of national security and armed conflict when Congress has not acted. That should be a very broad area. The term "inherent presidential power" could
also be taken, however, to refer to matters so deeply at the core of presidential authority that any act of Congress that regulated or limited the exercise of that power would be unconstitutional—even if Congress was acting under legislative powers clearly conferred by the Constitution. That should be an exceedingly small set of matters.

This administration has taken the astounding position that if the president has "inherent authority" to do and act whenever Congress is silent, then it follows that any act of Congress that regulates such an authority is an invalid impingement on his "inherent power."

In other words, pre-FISA rulings that the President has "inherent authority" to wiretap without a warrant for foreign intelligence could mean that since (a) the President has inherent constitutional authority to take necessary actions to gather foreign intelligence and (b) the Fourth Amendment does not impose any constitutional requirement for a warrant in such cases, the President may engage in foreign intelligence wiretapping without a warrant unless Congress acts to restrain him. Or it may mean that the President's authority to gather foreign intelligence is so absolute that Congress may not impose any restraints or regulations on it. No post-FISA court ruling has clarified the issue, because no one has ever challenged FISA in court as an unconstitutional infringement on executive power.

However, there are a few pre-FISA cases on the limits of the President's authority to wiretap for intelligence purposes as opposed to criminal prosecution, and several post-FISA cases in which defendants challenge the law on Fourth Amendment and other grounds. And there is one (only one) government appeal of restrictions placed by the FISA court. I have read these cases over from the perspective of an enlightened lay person who has some legal training, but is not a lawyer, let alone a constitutional scholar. My next posts will address what these cases say.

Ten Reasons to Honor the Founders (That Most People Don't Think Of)

We all know the Founding Fathers had their flaws, some blameless in the context of their times (they didn't let women vote), some to be condemned even then (they practiced slavery, they had no regard for the Indians). But this is the Fourth of July, so let us remember some (often forgotten) things that make our Founders truly worth celebrating.

10. They include among them soldiers, writers, orators, politicians, diplomats, financiers and scientists, all of whom contributed in their own way.

9. They gave a fair trial (and acquittal) to the British soldiers in the Boston Massacre.

8. They have a fair trial (and acquittal) to Aaron Burr.

7. They hated each other's guts without cutting each other's heads off.

6. They had as many self-made men as later generations of Americans (they just didn't publicize it as much).

5. They knew how to use an ideology to guide the founding of a nation without being rigid or dogmatic.

4. They overthrew their first government (the Articles of Confederation) bloodlessly and semi-legally, with speeches and debate rather than fighting. This was unprecedented.

3. The states with trans-Mississippi claims ceded their vast lands to the federal government in exchange for admission of the West as states on equal terms with the original Thirteen. How often has there been such statesmanship?

2. By agreeing to admit the western states as equals, they laid the foundation for a vast empire that was not imperial, with no center and no periphery, no metropolis and no provinces, but all areas met on equal grounds.

1. At a time when it was believed popular government was impossible on an expanded scale, they defied all conventional wisdom and experience to that date and dared to dream. We are their vindication to this day.

Ten Reasons This is a Great Country (That Most People Don't Think Of)

10. We have a reggae band led by a Hassidic Jew.

9. We dominiate the Internet.

8. We don't have posters of our leaders displayed in public places.

7. Each town hires its own police chief without consulting a central authority.

6. We are the world's largest exporter of words.

5. We elect everything from Sheriffs to school boards.

4. You can find anything you want in the Yellow Pages.

3. We celebrate our national holiday with picnics and barbecues.

2. We teem with self-help groups, civic organization, volunteer group, clubs, churches, and political organization.

1. We hate each other's guts without throwing bombs.

Possible Objections to Negotiations and My Answers

In my last two posts, I have argued that our best option in Iraq is to press for negotiations among all factions except the Al Qaeda types without trying to predetermine what the outcome should be. In this post, I try to anticipate objections some people may have to this approach and give my responses.

Objection: This would mean negotiating with some truly odious people.

Answer: This is certainly true. On the other hand, all armed factions in Iraq, including the ones that are nominally on our side are truly odious (i.e., we back the government and the government backs the death squads). And any faction without an army is too unimportant to consider. But if we could get these truly odious factions to negotiate a cease fire and stop killing, they would become at least somewhat less odious.

Objection: This means negotiating with the insurgents who are killing our troops.

Answer: Duh! That is how to make peace, by negotiating with the enemy, i.e., the people killing your troops. Besides, if we will be asking the insurgents to negotiate with our army that kills Iraqis.

Objection: Many factions are so small and unorganized they probably do not have anyone to negotiate on their behalf. Are meaningful negotiations even possible in so fragmented a situation?

Answer: This is a serious concern. The situation in Iraq is extremely fragmented, which makes negotiations difficult. Our best option in that case is to begin negotiations among the largest, strongest, and best organized factions, which are the ones that truly hold the power of war and peace. If the larger and stronger factions start making deals, the smaller and weaker factions will find it in their interest to affiliate with larger factions or risk being crushed by them.

Objection: Not all of the violence in Iraq is the work of political/religious factions at all. Much of it is being carried out by common criminals.

Answer: One of the reasons crime is thriving is the general chaos and breakdown in order. If peace and order can be restored, it will be much easier to crack down on common criminal gangs.

Objection: The ultimate outcome of such negotiations may very well be a crazy patchwork quilt of territories, each controlled by a different faction.

Answer: Once again, this is true. Certainly that was what happened when we intervened to protect the Kurds -- two rival Kurdish factions fought a civil war, which they ultimately resolved by dividing Kurdistan between them. For the two factions to coexist in the same space and compete peacefully through elections was something they simply were not ready for. If allowing each faction to control its own subsection of Iraq, perhaps with some peacekeepers patrolling the borders between them, is the best way the Iraqis can come up with to end/avoid a civil war, that is their decision. It is not as good as democratic competition through elections, but it is a great deal better than what we have now.

Objection: A patchwork quilt is not a stable outcome. The factions will fight, each trying to expand the area it controls.

Answer: Unfortunately, any negotiations to end a war are often accompanied by a temporary escalation in the fighting, as each side strives to bargain from a position of strength. We can use our army to try to curb such escalation and hold it in check, but it will probably not be possible to avoid altogether. Once a settlement is reached, I would advocate some sort of peace keeping force patroling between enclaves to keep fighting from breaking out again. And we can hope to do our part in the long, slow, painful process of nation-building as we try to slowly coax all sides to re-integrate. So long as the process is mostly bloodless, it should not inspire too much opposition. (Witness Afghanistan, Bosnia, etc).

Objection: This type of cantonization amounts to ethnic cleansing.

Answer: Ethnic (or sectarian) cleansing is already in full swing in Iraq today. If we can stop the fighting, we can stop the ethnic cleansing, or at least allow it to proceed in a more peaceful and orderly way.

Objection: This amounts to turning Iraq over to theocrats who will treat women abominably.

Answer: Tragically, this is true. Given where the power rests in Iraq today, I do not see any way to avoid erosion in the position of women. Certainly we will not help Iraqi women by prolonging the fighting; on the contrary, all evidence is that Islamic factions become increasingly radicalized the longer upheaval and social chaos persists.

Objection: What about Al Quada in Iraq?

Answer: We will, of course, be parties to the negotiations, and that will be the one term we insist on. Al Qaeda in Iraq must be destroyed and must not be allowed to return. As has been noted, when we killed Zarqawi, we obtained a whole treasure trove of valuable documents on his organization, which led us to other hideouts which, in turn, had their own documents leading to further hideouts. This is a most encouraging prospect. And given the number of enemies Zarqawi and his followers have made in Iraq, I am sure most Iraqis will be overjoyed to destroy his organization. If we tell them that if Al Qaeda comes back, so will we, I am sure the Iraqis will agree to keep them out.