It's Legal

From Powerline:
John Schmidt, associate attorney general of the United States in the Clinton administration, superbly explains why the NSA intercept program is legal under all authorities and precedents:

President Bush’s post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents. In the Supreme Court’s 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president’s authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

Here’s a CTV poll posted on

The Foreign Intelligence Surveillance Act requires that in order to conduct electronic surveillance on any party (tapping phones, reading emails, searching computers, etc) there must be probable cause that someone has committed a crime or is planning to commit one–the USA PATRIOT Act of 2001 amended FISA to include terrorism as well. FISA applies to individuals and groups working for a foreign government or a foreign terrorist organization. FISA also sets up a special secret court to grant warrants to government officials seeking to spy on these groups–such as the President in this case.

The intelligence community and many politicians argue that FISA’s provisions need to be maintained and even expanded due to the amorphous nature of modern terrorist groups and the need to protect classified information. On the other hand, civil libertarians and legal scholars argue that FISA itself violates the Fourth Amendment’s provision against unreasonable searches and seizures, and that secret courts and warrants violate due process of law–a transparent process being regarded as one of the hallmarks of due process.

The bottom line, in any case, is that FISA requires government officials to seek a warrant from its secret court before doing any foreign surveillance. And it is a rather easy and painless process. Renowned trial lawyer Martin Garbus says of the FISA court, “out of some 15,000 warrant applications, there were eight that were denied since 1978, so it’s basically a rubber stamp. Now, what Bush said is, ‘I don’t have the time,’ he says, ‘to go to FISA.’ Now, everybody has had the time to go to FISA. It doesn’t take any time at all.”

President Bush defended his actions in his December 17th radio address. “I am using authority vested in me by Congress, including the Joint Authorization for Use of Military Force, which passed overwhelmingly in the first week after September the 11th. I’m also using constitutional authority vested in me as Commander-in-Chief.” He’s wrong. The President’s actions violate the law in many ways and the consequences could be dire. For starters, through ordering the National Security Agency to spy on American citizens without FISA warrants–despite the ease of obtaining them–President Bush violated the Foreign Intelligence Surveillance Act. This is a felony punishable by five years in prison. It is also an impeachable offence.

By law and through executive order, intelligence has become part of the executive branch’s responsibilities, but the Constitution never mentions conducting espionage against American citizens without due process as part of the responsibilities of the Commander-in-Chief. Furthermore, the powers of Congress, as listed in the Constitution, also do not provide for spying on American citizens without due process of law. In fact, several agencies that we take for granted, such as the NSA and CIA, have a rather tenuous Constitutional basis. As for the Joint Authorization for Use of Military Force giving Bush the right to break the laws of this nation, this claim is also false. The Authorization states, “[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” Its language openly violates the long-established Constitutional limits on executive power; the founding document itself was intended by the Framers to prevent the government to award itself such vague blanket powers.

Legal precedent is not on Bush’s side in this case. David G. Savage and Bob Drogin of the Los Angeles Times point out that “the president’s lawyers have maintained that the commander in chief has the ‘inherent’ authority to act in the interest of national security, even if he overrides the law. But the Supreme Court did not accept that claim when it was tested in the past. In 1972, the justices unanimously rejected President Nixon’s contention that he had the power to order wiretapping without a warrant to protect national security.”

From My Sandmen:

Thomas Dewey, a Republican, had the decency to hold off investigating the Roosevelt/Truman administration regarding the Pearl Harbor attack until after the Second World War had been won. He, a Republican, regardless of whether or not he was right to demand an investigation, believed that national security trumped political opportunism.

Related thread:

Dept. of Justice Response

If someone has a drivers license, it’s legal to drive a car down the street, and nobody writes about it. Why? Well, because it’s legal. But you guys are obsessed with telling us that spying on bad Arabs is legal. It’s legal It’s legal. It’s legal.

It all makes me think that it’s not legal.

If anyone knows a bad Arab is going to make a call, then call George Bush and he will direct someone to listen in so we don’t get blown up. It’s OK with me.

What’s less discussed, of course, is the footnotes at the bottom of the page of the Bush explanation on sying on bad Arabs, to this effect: …aah, we did listen in on some calls that were not bad Arabs but we hung up right away.

Tell me a little more about that part, if you want.

[quote=Ani Ibi]From My Sandmen:

Now that’s a quaint idea. Too bad some on the left side of the isle don’t feel the same. But I guess wanting back in power trumps reason.

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