Gadfly is Marty Aussenberg, a columnist for the weekly Memphis Flyer. Marty is a former SEC enforcement official, currently in private law practice in Memphis, Tennessee. (A full bio is below the fold.) Cross-posted at The Memphis Flyer.
As the tooth-gnashing in the halls of Congress continues over the revelation that the Bush administration violated the black letter prohibition of engaging in warrantless surveillance, the final word in this debacle will obviously be issued, as it always is in Constitutional crises, by the judicial system. The political process will wind its painfully slow way towards the revelation of the truth about this breach of the law, with hearings that will be hamstrung by partisan bickering, posturing for the C-Span and nightly news show cameras and chest thumping by the usual apologists for an administration run amok.
The party in power cannot be expected, in spite of the courage of some of its members, notably Arlen Specter, (WaPo) to show the political will to hold the president accountable for his unlawful conduct. If it had that will, it would call for a special counsel to investigate the president’s secret program. (ACLU IMAGE). In the meantime, the truth will come out in the marble-lined federal courtrooms of our country, beginning with the one occupied by the court which was legislatively delegated the duty of overseeing the process of approving surveillance activities.
The FISA court has already been wracked by the scandal, with the resignation of one of its judges in protest over the revelations that its authority was disregarded with impunity. That court has scheduled a session at which it will be briefed by the administration about the whys and wherefores of its extra-judicial activities. (WaPo) The judges of the FISA court will want to know whether any of the warrants it did approve were tainted by the administration’s program of end-around surveillance, but also why the administration thought it could ignore the court and the law which created it.
Continued below:
Remember that, constitutionally, presidents only serve four year terms, but federal judges are appointed for life. In the battle of tenure, the judges win, hands down, and it is precisely because of the independence that gives them that they feel comfortable taking on the occasionally power hungry executive branch of our government. If it’s “not nice to fool Mother Nature,” LINK, believe me, it’s a lot less nice to try to fool a federal judge.
If the government cannot convince the FISA court that it had the authority to go around it, or worse, that it didn’t base any of its warrant requests on evidence tainted by warrantless surveillance, the administration faces the daunting prospect of having sanctions imposed on it by the court, including referrals to the Justice Department’s Office of Professional Responsibility (that department’s internal ethics monitor), contempt citations against the individual members of the executive branch and of the justice department who abused their authority, and even criminal charges, including perjury, for executing false affidavits required for the issuance of those tainted warrants.
The Court has already shown a lack of tolerance for government shenanigans when it severely criticized the FBI for filing misleading FISA applications in 75 cases in a case reported in 2002. (Fas.org) And, as has already been foreshadowed, other courts will be asked to perform inquiries into the use of tainted evidence (NYT) from warrantless surveillance by defendants in a whole host of prosecutions, which may result in some being abandoned and even in convictions being overturned.
It is well to remember that previous abuses by presidential administrations were first brought to light, or at least their discovery facilitated, by the judicial process. Nixon’s downfall was catalyzed by the decisions of a courageous federal judge, “Maximum John” Sirica (WaPo), who rejected Nixon’s assertion that “executive privilege” immunized him from having to comply with a federal grand jury subpoena, a decision that was ultimately upheld by the Supreme Court (FindLaw)/ And of course, had it not been for the Supreme Court’s decision in Jones v. Clinton which allowed Paula Jones’ suit against the President to proceed, Clinton might not have ever had to deal with the meaning of the word “is.”
One of the most significant constitutional confrontations in history between the legislative and executive branches of government, and in many ways the spitting image of the one fomented by the current administration, occurred in 1952, when President Truman sought to nationalize the steel industry during the Korean War, claiming he had the “inherent” authority to do so as president and commander in chief, in what was an end-around the Taft-Hartley Act, Congress’ prescribed manner for resolving labor disputes. Congress had explicitly rejected a seizure provision when it considered that law (just as the current Congress rejected including domestic surveillance when it considered giving Bush the authority to use force against al Qaeda (WaPo). The Supreme Court disagreed with Truman, and in a strongly worded concurring opinion, Justice Robert Jackson uttered these now-prophetic words:
[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. [emphasis supplied]
Responding to the argument, similar to the one Bush makes (the “war on terrorism”), that Truman’s actions were in reaction to exigent circumstances (i.e., the Korean war), Justice Jackson dismissed that argument as follows:
[t]he opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power’s validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies-such as wages or stabilization-and lose sight of enduring consequences upon the balanced power structure of our Republic. [emphasis supplied]
So, let the games in the halls of Congress begin, but in the meantime, keep your eye on the halls of the federal judiciary, because that’s where the issue of the effect of and responsibility for extra-judicial, warrantless surveillance by Bush and his cronies will be decided first.

Mr. Aussenberg is an attorney practicing in his own firm in Memphis, Tennessee. He began his career in the private practice of law in Memphis after relocating from Washington, D.C., where he spent five years at the Securities and Exchange Commission as a Special Counsel and Trial Attorney in its Enforcement Division, during which time he handled or supervised the investigation and litigation of several significant cases involving insider trading, market manipulation, and management fraud. Prior to his stint at the S.E.C., he was an Assistant Attorney General with the Pennsylvania Department of Banking in Philadelphia and was the Attorney-In-Charge of Litigation for the Pennsylvania Securities Commission, where, in addition to representing that agency in numerous state trial and appellate courts, he successfully prosecuted the first case of criminal securities fraud in the state’s history.
Mr. Aussenberg’s private practice has focused primarily on investment, financial, corporate and business counseling, litigation and arbitration and regulatory proceedings. He has represented individual, institutional and governmental investors, as well as brokerage firms and individual brokers, in securities and commodities-related matters, S.E.C., NASD and state securities regulatory proceedings, and has represented parties in shareholder derivative, class action and multi-district litigation, as well as defending parties in securities, commodities, and other “white-collar” criminal cases.
Mr. Aussenberg received his J.D. degree from the University of Pittsburgh School of Law, and his B.A. degree in Honors Political Science from the University of Pittsburgh. Immediately following law school, he served as a Reginald Heber Smith Community Lawyer Fellow with the Delaware County Legal Assistance Association in Chester, Pennsylvania.
He is admitted to practice in Tennessee, Pennsylvania and the District of Columbia, before the United States Supreme Court, the Third and Sixth Circuit Courts of Appeals, and the United States Tax Court, as well as federal district courts in Tennessee, Arkansas, Mississippi and Louisiana. He is an arbitrator for the NASD, New York Stock Exchange and American Arbitration Association, has published articles (“Stockbroker Fraud: This Kind of Churning Doesn’t Make Butter”, Journal of the Tennessee Society of C.P.A.’s,; Newsletter of the Arkansas Society of C.P.A.’s; Hoosier Banker (Indiana Bankers Association), and been a featured speaker on a variety of topics at seminars in the United States and Canada, including: Municipal Treasurers Association of the United States and Canada, Ottawa, Canada; Government Finance Officers Association; National Institute of Municipal Law Officers, Washington, D.C. ; Tennessee Society of Certified Public Accountants, Memphis, TN; Tennessee Association of Public Accountants, Memphis, TN (1993)
Mr. Aussenberg has two children, a daughter who is a graduate of Columbia University and holds a Masters in Public Health from Johns Hopkins University and is currently a student at the University of Pittsburgh School of Law, and a son who is a graduate of Brown University and is working with a conservation organization in Marin County, California while he decides what to do with the rest of his life.
Mr. Aussenberg is an avid golfer whose only handicap is his game, an occasional trap shooter whose best competitive score was a 92, and an even less frequent jazz drummer.
Humongous thanks for this post …erm gift – a gateau des rois, especially coming today. (gateau des rois meaning holiday of kings – 5 days after new years). Just happens the gateau, a bread-like cake with crown, is what we’ve been passing out among friends all weekend. Since we’re still in the 12 days of Christmas, I’ll enjoy a re-read.
Now, if only we could send King George on a loooong holiday, say for the remainder of his term.
2006 shaping up to be a year that just keeps giving.
HOW Bush Will Be Judged:
Appointing Special Counsel
It was my understanding that a Special Counsel would be appointed when there is a clear case of conflict of interests…. which in Gonzales’ case there is. He explained that warrants for domestic surveillance weren’t sought because they wouldn’t have got them.
(please don’t mention AG’s part in torture policy. please)
“when President Truman sought to nationalize the steel industry during the Korean War”
Is this Youngstown Steel?
From Justice Jackson’s Opinion; Youngstown Steel
YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952)
not a speedy process, so be patient
but very good news
a hearing tomorrow, and the FISA court has multiple judges who may feel scorned… patience, patience
and thanks Marty for the good news
I am patient person, to say the least; however, after 6 f***g years of this crap, I am beginning to wear down on that word! with no pun intended here, I am waiting for all the hammers to come down on this administration all at once…would that be fun or what!!???? I, then, would be in what is called hog heaven….:o)
Isn’t Bush in the process of stacking the court with one more judge (Alito) who – from the tone of his earlier decisions – believes in a powerful executive? Should Alito be confirmed, wouldn’t the decisions of lower courts be in danger of being overturned?
Thanks for the great information and insight. Without looking it up again, there were some problems back from ’99 through 2001 under Freeh mostly, that Ashcroft took the brunt of. Extra reports were required and Ashcroft seemed to work hard to bring programs into compliance. Judge Lamberth was a Reagan appointee and was the one that cracked down in a way that might have helped create more obstacles to proper investigation. Wasn’t Lamberth concerned that inaccurate or illegal evidence was being used to obtain FISA warrants? Wasn’t most of the confusion and failure the cause of FBI head (Freeh) policy?
Congress by the Senate Judiciary Committee:
Third, systemic management problems at FBI Headquarters led to a lack of accountability among senior FBI officials. A revolving door at FBI Headquarters resulted in agents who held key supervisory positions not having the required specialized knowledge to perform their jobs competently. A lack of proper communication produced a system where no single person was held accountable for mistakes. Therefore, there was little or no incentive to improve performance. Fourth, the layers of FBI and DOJ bureaucracy also helped lead to breakdowns in communication and serious errors in the materials presented to the FISA Court. The Committee learned that in the year before the Moussaoui case, one FBI supervisor was barred from appearing before the FISC due to inaccurate information presented in sworn affidavits to the Court. DOJ explained in a December 23, 2002, response to written questions from the July 25, 2002, oversight hearing that:
One FBI supervisory special agent has been barred from appearing before the Court. In March of 2001, the government informed the Court of an error contained in a series of FISA applications. This error arose in the description of a “wall” procedure. The Presiding Judge of the Court at the time, Royce Lamberth, wrote to the Attorney General expressing concern over this error and barred one specifically-named FBI agent from appearing before the Court as a FISA affiant….FBI Director Freeh personally met twice with then-Presiding Judge Lamberth to discuss the accuracy problems and necessary solutions.
As the Committee later learned from review of the FISA Court’s May 17, 2002, opinion, that Court had complained of 75 inaccuracies in FISA affidavits submitted by the FBI, and the DOJ and FBI had to develop new procedures to ensure accuracy in presentations to that Court. These so-called “Woods Procedures” were declassified at the request of the authors and were made publicly available at the Committee’s hearing on June 6, 2002. As DOJ further explained in its December 23, 2002, answers to written questions submitted on July 25, 2002:
On April 6, 2001, the FBI disseminated to all field divisions and relevant Headquarters divisions a set of new mandatory procedures to be applied to all FISAs within the FBI. These procedures know as the “Woods procedures,” are designed to help minimize errors in and ensure that the information provided to the Court is accurate…. They have been declassified at the request of your Committee.
DOJ describes the inaccuracies cited in the FISA Court opinion as related to “errors in the `wall’ procedure” to keep separate information used for criminal prosecution and information collected under FISA and used for foreign intelligence. However, this does not appear to be the only problem the FBI and DOJ were having in the use of FISA.
An FBI document obtained under the Freedom of Information Act, which is attached to this report as Exhibit D, suggests that the errors committed were far broader. The document is a memorandum dated April 21, 2000, from the FBI’s Counterterrorism Division, that details a series of inaccuracies and errors in handling FISA applications and wiretaps that have nothing whatsoever to do with the “wall.” Such mistakes included videotaping a meeting when videotaping was not allowed under the relevant FISA Court order, continuing to intercept a person’s email after there was no authorization to do so, and continuing a wiretap on a cell phone even after the phone number had changed to a new subscriber who spoke a different language from the target.
This document highlights the fact apart from the problems with applications made to the FISC, that the FBI was experiencing more systemic problems related to the implementation of FISA orders. These issues were unrelated to the legal questions surrounding the “wall,” which was in effect long before 1999. The document notes that the number of inaccuracies grew by three-and-one-half times from 1999 to 2000. We recommend that additional efforts to correct the procedural, structural, and training problems in the FISA process would go further toward ensuring accuracy in the FISA process than simply criticizing the state of the law.
One legitimate question is whether the problems inside the FBI and between the FBI and the FISA Court either caused FBI Headquarters to be unduly cautious in proposing FISA warrants or eroded the FISA Court’s confidence in the DOJ and the FBI to the point that it affected the FBI’s ability to conduct terrorism and intelligence investigations effectively.21 SA Rowley opines in her letter that in the year before “the September 11th acts of terrorism, numerous alleged IOB [Intelligence Oversight Board] violations on the part of FBI personnel had to be submitted to the FBI’s Office of Professional Responsibility (OPR) as well as the IOB. I believe the chilling effect upon all levels of FBI agents assigned to intelligence matters and their managers hampered us from aggressive investigation of terrorists.” (Rowley letter, pp. 7-8, fn. 7). Although the belated release of the FISA Court’s opinion of May 17, 2002, provided additional insight into this issue, further inquiry is needed.
Fifth, the FBI’s inability to properly analyze and disseminate information (even from and between its own agents) rendered key information that it collected relatively useless. Had the FBI put together the disparate strands of information that agents from around the country had furnished to Headquarters before September 11, 2001, additional steps could certainly have been taken to prevent the 9/11 attacks. So, while no one can say with certainty that the 9/11 attacks could have been prevented, in our view, it is also beyond reasonable dispute that more could have been done in the weeks before the attacks to try to prevent them.
Certain of our findings merit additional discussion, and such discussion follows.
3. FBI’s Misunderstanding of Legal Standards Applicable to the FISA
a. The FISA Statutory Standard: “Agent of a Foreign Power”
In order to obtain either a search warrant or an authorization to conduct electronic surveillance pursuant to FISA, the FBI and Justice Department must establish before the FISA Court (“FISC”) probable cause that the targeted person is an “agent of a foreign power.”22 An agent of a foreign power is defined as “any person who . . . knowingly aids or abets any person in the conduct of [certain] activities.”23 Those certain activities include “international terrorism,” and one definition of “foreign power” includes groups that engage in international terrorism.24 Accordingly, in the Moussaoui case, to obtain a FISA warrant the FBI had to collect only enough evidence to establish that there was “probable cause” to believe that Moussaoui was the “agent” of an “international terrorist group” as defined by FISA.
However, even the FBI agents who dealt most with FISA did not correctly understand this requirement. During a briefing with Judiciary Committee staff in February 2002, the Headquarters counterterrorism Unit Chief of the unit responsible for handling the Moussaoui FISA application stated that with respect to international terrorism cases, FISA warrants could only be obtained for “recognized” terrorist groups (presumably those identified by the Department of State or by the FBI itself or some other government agency). The Unit Chief later admitted that he knew that this was an incorrect understanding of the law, but it was his understanding at the time the application was pending. Additionally, during a closed hearing on July 9, 2002, the Supervisory Special Agent (“SSA”) who actually handled the Moussaoui FISA application at Headquarters also mentioned that he was trying to establish whether Moussaoui was an “agent of a recognized foreign power” (emphasis added).
Nowhere, however, does the statutory definition require that the terrorist group be an identified organization that is already recognized (such as by the United States Department of State) as engaging in terrorist activities. Indeed, even the FBI concedes this point. Thus, there was no support whatsoever for key FBI officials’ incorrect understanding that the target of FISA surveillance must be linked to such an identified group in the time before 9/11. This misunderstanding colored the handling of requests from the field to conduct FISA surveillance in the crucial weeks before the 9/11 attacks. Instead of supporting such an application, key Headquarters personnel asked the field agents working on this investigation to develop additional evidence to prove a fact that was unnecessary to gain judicial approval under FISA. It is difficult to understand how the agents whose job included such a heavy FISA component could not have understood that statute. It is difficult to understand how the FBI could have so failed its own agents in such a crucial aspect of their training.
I borrowed your codework to help keep the long comments tidy.