Domestic spying

[Richelieu]

There it is!!!

Outrage
Ted Striker's outrage

[Odin]

Originally posted by DinoDoc
Odin is spamming you with people outraged over it. You wannabe Frogs are annoying. No wonder Canadians want to kick you out.

The Corporate Media is doing it's best to keep the Sheeple uninformed. Thats what you get when you have conglomerates like GE (who owns NBC) in control of the Media. GE has defence contracts, IIRC.

TEH INTERNET:

Ted Striker:

The traitors in the White House:

[DRoseDARs]

Well, I doubt DD will bother reading this instead opting for the lazy and pathetically ignorant response of "spam," but it's a good run down of how this story has evolved over the past few days:

And no, I don't know why the [ url ] tags aren't working properly.

Edit: Fixed the links; had extraneous [ url ] tags.

http://news.yahoo.com/s/huffpost/012692

David Sirota: From "It Was Legal" To "I Am Lazy": The George Bush Domestic Spy Story

David Sirota Wed Dec 21, 1:28 PM ET

Another day, yet another new and wholly different explanation from the Bush administration about its illegal domestic spying operation.

In just the last 5 days, we've seen 3 separate explanations rolled out from the White House. First they claimed it was legal all along, then when that didn't fly, they said they had to do it because of a need for speed. Now that that has been debunked, they are actually claiming they were just too lazy to do "the paperwork." On top of this, they also first told us that the surveillance was only targeted at international calls – but now today, we learn that isn't true either, and that Americans are under surveillance on purely domestic calls.

Let's just walk through the shenanigans, shall we?

When the story first broke, the administration was clearly in panic mode, and offered up the positively ridiculous claim that the President has the authority to break the 4th Amendment of the U.S. Constitution because Congress passed a resolution right after 9/11 saying he should fight Al Qaeda. Of course, the resolution said nothing about violating the U.S. Constitution, or violating statutes protecting Americans' civil liberties - and in passing the resolution, Congress explicitly told the White House that the resolution did not authorize any extra-legal behavior. And, incredibly, the White House didn't request changes to those statutes when it passed the original Patriot Act because it knew Congress wouldn't go along. So instead of asking for changes to the law, they just broke the law.

When their "it was legal all along" argument didn't hold water,
President Bush called a press conference claiming that he needed to break the law because the operations he was ordering "require quick action." He cited how terrorists in the information are able to move fast, and claimed that the process for getting a warrant would slow down law enforcement's efforts to catch them.

But then that was debunked too, as observers noted that the special FISA court Bush was legally required to get a warrant from actually allowed the White House to conduct surveillance, and get a warrant retroactively, thus not slowing down the process. Additionally, the FISA court has rejected just 4 warrant requests in a quarter century – meaning it basically gives away warrants, as long as you can show even a shred of minimum cause. As Colin Powell noted on ABC'S Nightline:

[portion of article missing, end of Powell quote follows]

provides for that. And three days later, you let the court know what you have done, and deal with it that way.” Now, with two swings and misses, the White House is offering up perhaps the most pathetic rationale possible: we were lazy, and we just didn't feel like upholding the law. The administration is trotting out Michael Hayden, who was NSA director when the surveillance began and is now Bush's deputy director of national intelligence. The Washington Post reports that Hayden told reporters that "getting retroactive court approval is inefficient because it 'involves marshaling arguments' and 'looping paperwork around.'"

So now we really see what it's come to. The law is just a nuisance to these people. They don't feel like "marshaling arguments" or doing the "paperwork" that the law requires – the law, mind you, that was written to protect people's civil liberties, and the arguments/paperwork that are specifically required to make sure there is a check on Presidents whose henchmen are conducting surveillance operations on political enemies (ie. civil rights, anti-war, environmental, animal cruelty, and poverty relief groups).

We are supposed to feel ok about all of this because, as the New York Times noted, "Mr. Bush and his senior aides have emphasized since the disclosure of the program's existence last week that the president's executive order applied only to cases where one party on a call or e-mail message was outside the United States" (as if that means law breaking is acceptable). But even this inadequate explanation has been exposed as a lie. As the Times noted, the illegal surveillance program "has captured what are purely domestic communications."

Throughout all of this, the media and insulated elitists in the political chattering classes have obediently portrayed the controversy in "he said, she said" terms, or terms that simply justify law-breaking. As the President promises to continue breaking the law, Katie Couric banters back and forth with Tim Russert about how the only people who care about this are "constitutional scholars" – not the American people. Bloviators like William Kristol write fawning congratulations to President Bush for trampling the constitution, and go on Fox News demanding to know why President Bill Clinton hadn't trampled the Constitution when he was in office. And the Democratic Leadership Council, undermining congressional Democrats who are courageously raising questions, actually says Bush' law-breaking is entirely justified, even though we haven't been given one justification that holds water.

Yet in the media/punditry's desperate, mob-like rush to kiss the fat white ass of power even as it farts the most foul-smelling lies right in their face, none of these people have answered or even asked the very simple question: If the president is permitted to break this law with absolutely no concrete justification at all, what law isn't he allowed to break? Can he walk into a 7-11 and rob it? Can he steal taxpayer money and pocket it as his own? Or how about executing his political enemies? Can he do that?

These may sound like hyperbolic questions – but they cut to what this really is about. Does the "rule of law" which President Bush has talked so much about actually mean anything in the United States of America?

[DinoDoc]

Originally posted by DRoseDARs
Well, I doubt DD will bother reading this instead opting for the lazy and pathetically ignorant response of "spam,"

It only becomes spam when you post the samething multiple times. In answer to the other point, I didn't read it. I never read Huffington or Coulter.

[Kuciwalker]

Odin, you're making baby jesus cry.

[Koyaanisqatsi]

I'm trying to decide if this is funny because it's true, or depressing because it's true:

[Odin]

Originally posted by Koyaanisqatsi
I'm trying to decide if this is funny because it's true, or depressing because it's true:

Both.

[Ted Striker]

LOL!!!!!!!!!!!!!!!!!!!!!!!!!

[DRoseDARs]

Here's a good run down from Media Matters putting the smackdown on some myths and general falsehoods surrounding this issue:

Top 12 media myths and falsehoods on the Bush administration's spying scandal

Summary: Media Matters presents the top 12 myths and falsehoods promoted by the media on President Bush's spying scandal stemming from the recent revelation in The New York Times that he authorized the National Security Agency (NSA) to eavesdrop on domestic communications without the required approval of the Foreign Intelligence Surveillance court.

As The New York Times first revealed on December 16, President Bush issued a secret presidential order shortly after the September 11, 2001, terrorist attacks that authorized the National Security Agency (NSA) to eavesdrop on international phone and email communications that originate from or are received within the United States, and to do so without the court approval normally required under the Foreign Intelligence Surveillance Act (FISA). Facing increasing scrutiny, the Bush administration and its conservative allies in the media have defended the secret spying operation with false and misleading claims that have subsequently been reported without challenge across the media. So, just in time for the holidays, Media Matters for America presents the top myths and falsehoods promoted by the media on the Bush administration's spying scandal.

1: Timeliness necessitated bypassing the FISA court

Various media outlets have uncritically relayed President Bush's claim that the administration's warrantless domestic surveillance is justified because "we must be able to act fast ... so we can prevent new [terrorist] attacks." But these reports have ignored emergency provisions in the current law governing such surveillance -- FISA -- that allow the administration to apply to the Foreign Intelligence Surveillance Court for a search warrant up to 72 hours after the government begins monitoring suspects' phone conversations. The existence of this 72-hour window debunks the argument that the administration had to bypass the law to avoid delay in obtaining a warrant. The fact that the administration never retroactively sought a warrant from the FISA court for its surveillance activities suggests that it was not the need to act quickly that prevented the administration from complying with the FISA statute, but, rather, the fear of being denied the warrant.

2: Congress was adequately informed of -- and approved -- the administration's actions

Conservatives have sought to defend the secret spying operation by falsely suggesting that the Bush administration adequately informed Congress of its actions and that Congress raised no objections. For example, on the December 19 broadcast of Westwood One's The Radio Factor, host Bill O'Reilly claimed that the NSA's domestic surveillance "wasn't a secret program" because "the Bush administration did keep key congressional people informed they were doing this." The claim was also featured in a December 21 press release by the Republican National Committee (RNC).

In fact, both Republicans and Democrats in Congress have said that the administration likely did not inform them of the operation to the extent required by the National Security Act of 1947, as amended in 2001. Members of both parties have also said that the objections they did have were ignored by the administration and couldn't be aired because the program's existence was highly classified.

As The New York Times reported on December 21, Rep. Peter Hoekstra (R-MI), former Sen. Bob Graham (D-FL), Senate Intelligence Committee ranking member John D. Rockefeller IV (D-WV), and Senate Democratic Leader Harry Reid (D-NV) have stated that they did not receive written reports from the White House on the surveillance operation, as required by the National Security Act:

The demand for written reports was added to the National Security Act of 1947 by Congress in 2001, as part of an effort to compel the executive branch to provide more specificity and clarity in its briefings about continuing activities. President Bush signed the measure into law on Dec. 28, 2001, but only after raising an objection to the new provision, with the stipulation that he would interpret it "in a manner consistent with the president's constitutional authority" to withhold information for national-security or foreign-policy reasons.

[...]

[I]n interviews, Mr. Hoekstra, Mr. Graham and aides to Mr. Rockefeller and Mr. Reid all said they understood that while the briefings provided by [Vice President Dick] Cheney might have been accompanied by charts, they did not constitute written reports. The 2001 addition to the law requires that such reports always be in written form, and include a concise statement of facts and explanation of an activity's significance.

Further, Rockefeller recently released a copy of a letter he wrote to Cheney on July 17, 2003, raising objections to the secret surveillance operation. As the Times reported on December 20, Rockefeller said on December 19 that his concerns "were never addressed, and I was prohibited from sharing my views with my colleagues" because the briefings were classified. The December 21 Times report noted that House Democratic Leader Nancy Pelosi (D-CA) said she too sent a letter to the Bush administration objecting to the secret surveillance operation, and that Graham alleged that he was never informed "that the program would involve eavesdropping on American citizens."

3: Warrantless searches of Americans are legal under the 1978 Foreign Intelligence Surveillance Act

Conservatives such as nationally syndicated radio host Rush Limbaugh and American Cause president Bay Buchanan have defended the administration by falsely claiming that the administration's authorization of domestic surveillance by the NSA without warrants is legal under FISA. In fact, FISA, which was enacted in 1978, contains provisions that limit such surveillance to communications "exclusively between foreign powers," specifically stating that the president may authorize electronic surveillance without a court order only if there is "no substantial likelihood" that the communications of "a United States person" -- a U.S. citizen or anyone else legally in the United States -- will be intercepted. Such provisions do not allow for the Bush administration's authorization of domestic surveillance of communications between persons inside the United States and parties outside the country.

FISA also allows the president and the attorney general to conduct surveillance without a court order for the purpose of gathering "foreign intelligence information" for "a period" no more than 15 days "following a declaration of war by the Congress." This provision does not permit Bush's conduct either, as he acknowledged that he had reauthorized the program more than 30 times since 2001, and said that the program is "reviewed approximately every 45 days."

4: Clinton, Carter also authorized warrantless searches of U.S. citizens

Another tactic conservatives have used to defend the Bush administration has been to claim that it is not unusual for a president to authorize secret surveillance of U.S. citizens without a court order, asserting that Democratic presidents have also done so. For example, on the December 21 edition of Fox News' Special Report, host Brit Hume claimed that former presidents Jimmy Carter and Bill Clinton issued executive orders "to perform wiretaps and searches of American citizens without a warrant."

But as the ThinkProgress weblog noted on December 20, executive orders on the topic by Clinton and Carter were merely explaining the rules established by FISA, which do not allow for warrantless searches on "United States persons." Subsequent reports by NBC chief foreign affairs correspondent Andrea Mitchell and The Washington Post also debunked the conservative talking point while noting that the claim was highlighted in the December 21 RNC press release.

From ThinkProgress, which documented how internet gossip Matt Drudge selectively cited from the Clinton and Carter executive orders to falsely suggest they authorized secret surveillance of U.S. citizens without court-obtained warrants:

What Drudge says:

Clinton, February 9, 1995: "The Attorney General is authorized to approve physical searches, without a court order"

What Clinton actually signed:

Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign Intelligence Surveillance] Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

That section requires the Attorney General to certify is the search will not involve "the premises, information, material, or property of a United States person." That means U.S. citizens or anyone inside of the United States.

The entire controversy about Bush's program is that, for the first time ever, allows warrantless surveillance of U.S. citizens and other people inside of the United States. Clinton's 1995 executive order did not authorize that.

Drudge pulls the same trick with Carter.

What Drudge says:

Jimmy Carter Signed Executive Order on May 23, 1979: "Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order."

What Carter's executive order actually says:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

What the Attorney General has to certify under that section is that the surveillance will not contain "the contents of any communication to which a United States person is a party." So again, no U.S. persons are involved.

5: Only Democrats are concerned about the Bush administration's secret surveillance

As part of a larger problem of imprecise reporting, a number of media reports have falsely suggested that the debate over the Bush administration's secret surveillance of domestic communications is purely a partisan dispute between Democrats and Republicans. For example, on the December 22 broadcast of NBC's Today, Newsweek chief political correspondent Howard Fineman said: "[W]hile the Bill of Rights is something we all cherish, I think the Democrats politically need to be careful, because the president's going to argue, as he already is, that post-9-11, strong surveillance measures are required."

In fact, several prominent Republicans have expressed concern that the Bush administration's actions might violate the law or otherwise be objectionable. On December 18, Sen. Lindsey O. Graham (R-SC) said that "I don't know of any legal basis to go around" the requirement that the White House formally apply to the FISA court for a warrant to engage in domestic surveillance, while Sen. John McCain (R-AZ) said it is a "legitimate question" to ask why "the president chose not to use FISA." After Attorney General Alberto R. Gonzales cited executive authority in defending the legality of the administration's actions, Sen. Arlen Specter (R-PA) -- who is in charge of organizing an investigation into the issue -- responded that he was "skeptical of the attorney general's citation of authority."

6: Debate is between those supporting civil liberties and those seeking to prevent terrorism

Many media figures have created a false dichotomy by framing the debate over the Bush administration's actions as one between those who support protecting civil liberties and those who favor protecting America from another deadly terrorist attack. For example, NBC host Katie Couric claimed the debate amounted to "legal analysts and constitutional scholars versus Americans, who say civil liberties are important, but we don't want another September 11," while NBC's Mitchell wondered whether Americans should be more concerned about "[a] terror attack or someone going into their hard drive and intercepting their emails."

Such statements set up exactly the false debate put forth by Cheney and Bush to defend the administration's actions, as Mitchell subsequently noted on the December 21 edition of MSNBC's Hardball with Chris Matthews:

MITCHELL: [T]hey set up successfully, the White House, this premise of you're either for security and protecting the American people post-9-11 or you're worried about surveillance. This either-or proposition, when a lot of people say that's a false choice.

7: Bin Laden phone leak demonstrates how leak of spy operation could damage national security

Several media outlets have uncritically cited a 1998 Washington Times report on Osama bin Laden as an example of how leaking information about the Bush administration's domestic spying operation could harm national security. The media have falsely suggested that the Washington Times report revealed that the United States was monitoring bin Laden's conversations on a satellite phone and that bin Laden quickly ceased using the phone after the report surfaced. In fact, the article only noted that bin Laden was using a satellite phone, not that the U.S. was monitoring it; according to a December 22 report by The Washington Post, bin Laden apparently had stopped using the phone by the time any newspaper reported that the U.S. had been monitoring his conversations. Further, the Post noted that another report on bin Laden's phone -- that relied on the Taliban as its source -- preceded the Washington Times article by nearly two years, while another report predating the Times article relied on bin Laden himself.

One example of media misrepresenting the bin Laden incident occurred on the December 17 edition of CNN Live Saturday, when correspondent Brian Todd reported:

TODD: We asked one expert how important it is for the NSA and its methods to be kept so secret. He cited one breach as an example, the damage done when it was made public that intelligence agencies were monitoring Osama bin Laden's cell phone calls.

In a December 19 press conference, Bush also highlighted the purported bin Laden leak as an example of why leaking information about the domestic spying operation was a "shameful act" that is "helping the enemy":

QUESTION: Thank you, sir. Are you going to order a leaks investigation into the disclosure of the NSA surveillance program?

[...]

BUSH: My personal opinion is it was a shameful act, for someone to disclose this very important program in time of war.

The fact that we're discussing this program is helping the enemy.

[...]

BUSH: Let me give you an example about my concerns about letting the enemy know what may or may not be happening.

In the late 1990s, our government was following Osama bin Laden because he was using a certain type of telephone. And then the fact that we were following Osama bin Laden because he was using a certain type of telephone made it into the press as the result of a leak.

And guess what happened. Osama bin Laden changed his behavior. He began to change how he communicated.

But as the December 22 Post report documented, the August 21, 1998, Washington Times article in question "never said that the United States was listening in on bin Laden"; the article merely reported that bin Laden "keeps in touch with the world via computers and satellite phones." The Post also noted that the Washington Times report was not the first article to note bin Laden's use of a satellite phone: A December 16, 1996, Time magazine report cited the Taliban in reporting that bin Laden "uses satellite phones to contact fellow Islamic militants in Europe, the Middle East and Africa." And the day before the Times article, CNN terrorism analyst Peter Bergen cited a 1997 interview he conducted with bin Laden to report that bin Laden "communicates by satellite phone." Finally, the Post noted that it was not until "after bin Laden apparently stopped using his phone" that the Los Angeles Times first reported on September 7, 1998, that the U.S. had been monitoring his phone conversations. As a follow-up Post article on December 23 noted, bin Laden stopped using the phone "within days of a cruise missile attack on his training camps in Afghanistan."

The false claim that the Washington Times article was responsible for causing bin Laden to stop using the satellite phone apparently originated in the 9-11 Commission report, which asserted: "Worst of all, al Qaeda's senior leadership had stopped using a particular means of communication almost immediately after a leak to the Washington Times."

8: Gorelick testimony proved Clinton asserted "the same authority" as Bush

In a December 20 article headlined "Clinton Claimed Authority to Order No-Warrant Searches," National Review White House correspondent Byron York drew attention to then-Deputy Attorney General Jamie Gorelick's July 14, 1994, testimony before the House Intelligence Committee, in which she stated that the president has "inherent authority to conduct warrantless physical searches." While York's article did not explicitly draw a parallel between the Clinton administration's 1994 policy regarding such searches and the current Bush administration controversy regarding unwarranted domestic surveillance, conservative media figures such as National Review editor Rich Lowry and syndicated columnist Charles Krauthammer have done just that.

But Gorelick's testimony does not prove that the Clinton administration believed it had the authority to bypass FISA regulations, as the Bush administration has argued in the case of the NSA's domestic wiretapping program.

Unlike electronic surveillance, the "physical searches" to which Gorelick referred were not restricted by FISA at the time of her 1994 testimony. Therefore, by asserting the authority to conduct physical searches for foreign intelligence purposes, the Clinton administration was not asserting that it did not have to comply with FISA. In October 1994, Congress passed legislation -- with Clinton's support -- to require FISA warrants for physical searches. Thereafter, the Clinton administration never argued that any "inherent authority" pre-empted FISA. To the contrary, in February 1995 Clinton issued an executive order that implemented the new FISA requirements on physical searches.

By contrast, the Bush administration has argued that it has the authority to authorize surveillance of domestic communications without court orders, despite FISA's clear and longstanding restrictions on warrantless electronic eavesdropping.

9: Aldrich Ames investigation is example of Clinton administration bypassing FISA regulations

Some conservatives have specifically cited the joint CIA/FBI investigation of Aldrich Ames, a CIA analyst ultimately convicted of espionage, as an example of Clinton invoking executive authority to overstep FISA by authorizing a physical search of a suspect without a court order. For example, on the December 21 edition of CNN's The Situation Room, Republican attorney Victoria Toensing falsely claimed that the Clinton administration did "carry out that authority" to bypass the FISA requirements "when they went into Aldrich Ames's house without a warrant."

But as with Gorelick's testimony, the Ames investigation took place before the 1995 FISA amendment requiring warrants for physical searches. In other words, in conducting these searches, the Clinton administration did not bypass FISA because FISA did not address physical searches. Further, there is ample evidence that the Clinton administration complied with the FISA requirements that did exist on wiretapping: U.S. District Court Judge Royce C. Lamberth, who previously served on the FISA court, has noted the "key role" the court played in the Ames case to "authorize physical entries to plant eavesdropping devices"; and former deputy assistant attorney general Mark M. Richard established that "the Attorney General was asked to sign as many as nine certifications to the FISA court in support of applications for FISA surveillance" during the Ames investigation.

10: Clinton administration conducted domestic spying

Conservative media figures have claimed that during the Clinton administration, the NSA used a program known as Echelon to monitor the domestic communications of United States citizens without a warrant. While most have offered no evidence to support this assertion, NewsMax, a right-wing news website, cited a February 27, 2000, CBS News 60 Minutes report that correspondent Steve Kroft introduced by asserting: "If you made a phone call today or sent an email to a friend, there's a good chance what you said or wrote was captured and screened by the country's largest intelligence agency. The top-secret Global Surveillance Network is called Echelon, and it's run by the National Security Agency." NewsMax used the 60 Minutes segment to call into question The New York Times' December 16 report that Bush's "decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad."

On December 19, Limbaugh read the NewsMax article on his nationally syndicated radio show. Limbaugh told listeners that Bush's surveillance program "started in previous administrations. You've heard of the NSA massive computer-gathering program called Echelon. 60 Minutes did a story on this in February of 2000. Bill Clinton still in office." The Echelon claim has also been repeated by Wall Street Journal columnist John Fund and radio host G. Gordon Liddy.

The 60 Minutes report appears to have been based largely on anecdotal evidence provided by a former Canadian intelligence agent and a former intelligence employee who worked at Menwith Hill, the American spy station in Great Britain, in 1979. In addition, the report contained footage of an assertion by then-Rep. Bob Barr (R-GA) that "Project Echelon engages in the interception of literally millions of communications involving United States citizens." But the report also included comments from then-chairman of the House Permanent Select Committee on Intelligence Rep. Porter Goss (R-FL), who, Kroft reported, "still believes ... that the NSA does not eavesdrop on innocent American citizens." Kroft asked Goss: "[H]ow can you be sure that no one is listening to those conversations?" Goss responded, "We do have methods for that, and I am relatively sure that those procedures are working very well."

While Goss did not say in his 60 Minutes interview that the NSA does not spy on the domestic communications of Americans without a warrant, then-director of central intelligence George J. Tenet and then-National Security Agency director Lt. Gen. Michael V. Hayden said exactly that to Goss's committee less than two months later. As ThinkProgress has noted, Tenet testified before the intelligence committee on April 12, 2000. Denying allegations that Echelon was used to spy on Americans in the United States without a warrant, Tenet stated: "We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department." In the same hearing, Hayden testified: "If [an] American person is in the United States of America, I must have a court order before I initiate any collection [of communications] against him or her."

Hayden also denied the "urban myth" that the NSA "ask[s] others to do on our behalf that which we cannot do for ourselves." This appears to have been a response to the allegation -- noted by 60 Minutes -- that the NSA was exchanging information with foreign intelligence services that did monitor the domestic communications of Americans. Hayden stated: "By executive order, it is illegal for us to ask others to do what we cannot do ourselves, and we don't do it."

Tenet and Hayden's congressional testimony leaves two possibilities: Either they were not telling Congress the truth, or the claim that the NSA used the Echelon program to monitor the domestic communications of Americans is incorrect.

Hayden now serves as principal deputy director of national intelligence and has vigorously defended Bush's warrantless domestic surveillance program. At a December 19 press conference, he acknowledged that Bush's program goes beyond what is authorized under FISA. Hayden described it as "a more -- I'll use the word 'aggressive' program than would be traditionally available under FISA."

11: Moussaoui case proved that FISA probable-cause standard impedes terrorism probes

Some of the administration's supporters have attempted to defend the domestic surveillance program by pointing to a purported situation where the cumbersome FISA regulations prevented crucial intelligence gathering. In a December 20 Washington Post op-ed, Weekly Standard editor William Kristol and American Enterprise Institute resident scholar Gary Schmitt cited the 2001 case of Zacarias Moussaoui as evidence that the "difficulty with FISA is the standard it imposes for obtaining a warrant aimed at" a domestic target. Kristol and Schmitt claimed that the evidence the FBI had compiled against Moussaoui did not "rise to the level of probable cause under FISA":

Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI's attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don't rise to the level of probable cause under FISA.

But contrary to Kristol and Schmitt's argument that the probable-cause standard established by FISA was too high in this case, a 2003 Senate Judiciary Committee report found that the FBI's evidence against Moussaoui was, in fact, sufficient. The report instead asserted that FBI personnel who handled the warrant application "failed miserably" in their efforts to convince FBI attorneys that the threshold for establishing probable cause that Moussaoui was an "agent of a foreign power" (and therefore subject to surveillance pursuant to FISA) had been met .

The bipartisan report, compiled by Sens. Patrick Leahy (D-VT), Charles Grassley (R-IA), and Arlen Specter (R-PA), examined in detail the FBI's handling of the Moussaoui FISA application, which was delivered to FBI headquarters by the Minneapolis field office, handled by a supervisory special agent (SSA) there, and ultimately rejected as insufficient by FBI attorneys. The senators determined that the SSA in charge of the application provided the attorneys with a "truncated" version of the evidence compiled by the Minneapolis agents and failed to search for additional "information relevant to the application." Moreover, the report found that both the SSA and the attorneys had employed an "unnecessarily high standard" for probable cause -- one that exceeded the legal requirements set out by FISA:

In our view, the FBI applied too cramped an interpretation of probable cause and "agent of a foreign power" in making the determination of whether Moussaoui was an agent of a foreign power. FBI Headquarters personnel in charge of reviewing this application focused too much on establishing a nexus between Moussaoui and a "recognized" group, which is not legally required. Without going into the actual evidence in the Moussaoui case, there appears to have been sufficient evidence in the possession of the FBI which satisfied the FISA requirements for the Moussaoui application.

Despite this report's having established that the FBI's misunderstanding of the FISA requirements resulted in the rejection of the Moussaoui application, a December 23 New York Times article reported without challenge the FBI's argument that FISA's "cumbersome submission requirements" were to blame:

Some agents complained that the FISA court's cumbersome submission requirements and insistence on strict adherence to the law had contributed to the impression that the court itself was an obstacle to aggressive investigation of terror cases. As an example, these agents suggested F.B.I. lawyers did not seek a FISA warrant in the case of Zacarias Moussaoui, who was arrested shortly before the 2001 attacks, in part because they believed the court would reject it.

12: A 2002 FISA review court opinion makes clear that Bush acted legally

Recently, conservative media figures have misleadingly cited a 2002 opinion by the Foreign Intelligence Surveillance Court of Review (FISCR) to claim that the president could authorize warrantless domestic electronic surveillance despite FISA's restrictions. They have pointed to the court's reiteration of the president's inherent constitutional authority to conduct foreign intelligence surveillance without a warrant, which FISA cannot encroach upon. Therefore, they argue, Bush could authorize NSA's warrantless monitoring of "U.S. persons," regardless of FISA's restrictions.

But, as Media Matters documented, this argument is a red herring. Their citation of the decision to support the contention that Congress cannot encroach upon the president's constitutional authority ignores constitutional limits on that authority. Of course a law passed in 1978 would not trump the Constitution -- the supreme law of the land. The question is the scope of that presidential authority and whether it extends to acts that would violate the provisions of FISA protecting U.S. persons from excessive government intrusion. Contrary to these media figures' suggestions, the 2002 FISCR opinion does not address that question.

Regardless, media figures have asserted that the FISCR opinion supports the contention that Bush is not bound by FISA.

Most prominent among these has been National Review White House correspondent Byron York, who in a post on the National Review Online's weblog, The Corner, titled "READ THIS IMPORTANT ARTICLE," promoted a Chicago Tribune op-ed by John Schmidt, an associate attorney general under Clinton, supporting the legality of the administration's surveillance program. Schmidt wrote:

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. In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

[...]

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

The Drudge Report website also cited Schmidt's Tribune op-ed with a link captioned "Associate attorney general under Clinton: President had legal authority to OK taps ..."

Similarly, a December 20 Wall Street Journal editorial asserted:

FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed.

The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that, "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."[/b]

Fox News chief Washington correspondent Jim Angle made a similar claim on the December 20 edition of Fox News' Special Report with Brit Hume, stating, "In 2002, [FISA's] own court of review upheld the president's powers and pointed to an appeals court decision, noting that it, as did all other courts to have decided the issue, held that the president did have the inherent authority to conduct warrantless searches to obtain foreign intelligence information."

Others who have repeated this claim in the media include Bradford Berenson, a former associate White House counsel, who made the assertion on the December 21 broadcast of PBS' The NewsHour with Jim Lehrer. Berenson worked in the Bush White House from 2001 to 2003, and after the September 11 attacks "played a significant role in the executive branch's counterterrorism response."

—A.S., J.K., J.S., S.S.M., & R.S.K.

[Ogie Oglethorpe]

Not that I like it (and it also seems to reaffirm Drose's point above Myth 12)

On the Legality of the NSA Electronic Intercept Program

It has been widely suggested that the NSA electronic intercept program that has been carried out by the Bush administration for the last three years is, or may be, illegal. The New York Times and other media outlets have implied, without saying outright, that the program is unconstitutional or otherwise improper. The Democrats have picked the ball up and run with it; the Democratic National Committee sent out an email yesterday that characterized the program as "illegal surveillance" constituting an "explosive scandal."

In fact, though, if one reviews the controlling legal authorities, it is hard to see what the fuss is about. For purposes of this analysis, I have assumed that the NSA intercepts electronic messages (phone calls and emails); that when the agency learns of a foreign cell phone or email address that is being used by a terrorist, it inputs that phone number or address into its surveillance system and is then able to intercept all incoming and outgoing communications; that the intent of the program is to intercept only international communications, i.e., those where at least one of the parties is located outside the United States; but on relatively rare occasions, communications between two people who are both located in the U.S. are intercepted. Under the governing legal principles, however, the precise details of the program shouldn't make any difference.

The starting point, of course, is the Constitution. Article II of the Constitution sets out the powers and duties of the President. Some people do not seem to realize that the executive branch is coequal with the legislative and judicial branches. The President has certain powers under the Constitution, and they cannot be taken away or limited by Congressional legislation any more than the President can limit the powers of Congress by executive order.

Article II makes the President Commander in Chief of the armed forces. As such he is preeminent in foreign policy, and especially in military affairs. This was no accident; as Alexander Hamilton wrote in Federalist No. 74, "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." The federal courts have long recognized that when it comes to waging war, the President, not Congress or the courts, is the supreme authority. In Fleming v. Page, 9 How. 603, 615 (1850), the Supreme Court wrote that the President has the Constitutional power to "employ [the Nation's armed forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy."

No one questions this basic principle. If our soldiers or intelligence agencies discover a terrorist in Afghanistan, Iraq or elsewhere, the President or his designees can order an air strike or other attack to kill him. It would be very odd if the President has the authority to kill a terrorist, but not to intercept his telephone calls or search his cave.

There is one relevant constitutional provision that acts as a restraint on the President's inherent power as Commander in Chief. That is the Fourth Amendment, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So all searches and seizures of Americans or their property (including, as the courts have appropriately ruled, interceptions of telephonic and electronic communications) must be reasonable. Note, however, that this requirement does not apply to terrorists overseas. A Special Forces soldier can pick a cave arbitrarily and search it. He isn't trying to prosecute terrorists, he is trying to kill them. He doesn't need probable cause.

The Fourth Amendment includes requirements for the issuance of search warrants, and many critics of the NSA program seem to assume that this means that all searches must be executed pursuant to a warrant. This assumption is wrong. There are dozens of situations where warrantless searches have been approved by the courts. The overriding principle is that searches of Americans (defined to include resident aliens) must be reasonable.

One of the many situations where warrantless searches have been approved is when the government is seeking foreign intelligence information, such as information relating to potential terrorist threats. Next to the Constitution itself, of course, the highest authority is the United States Supreme Court. At least three Supreme Court cases have discussed this subject.

In 1967, the Court decided Katz v. United States, 389 U.S. 347. Katz involved the warrantless interception of a conversation held by a criminal defendant in a phone booth. The Court held that the Fourth Amendment applies to such conversations, and that in an ordinary criminal prosecution (subject to many exceptions, as noted above) a warrant is required for wiretap information to be admissible in court. The Court specifically noted, however, that its decision did not apply to situations involving national security:

Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.

Five years later, the Court decided United States v. United States District Court, 407 U.S. 297 (1972). This case arose out of a criminal prosecution for conspiracy to destroy government property. (One of the defendants was charged with dynamiting a Michigan office of the C.I.A.) The Court's majority opinion framed the issue as follows:

[This case] involves the delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval.

[Emphasis added.] While acknowledging that American governments had conducted warrantless surveillance in internal security cases "for more than one-quarter of a century," the Court held such surveillance unconstitutional under the circumstances presented.

For the present purpose, the relevant portions of the opinion are those that distinguish the case before the Court from cases involving foreign intelligence gathering:

[T]he instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country.

And again:

We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.

It should be noted, too, that the Court did not hold that in domestic security cases, warrants are always required; it merely rejected the government's assertion of a blanket exemption for all such surveillance.

The third relevant Supreme Court case is Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Hamdi was an American citizen who was captured on the battlefield in Afghanistan and sued the Defense Department, claiming that his indefinite detention as an enemy combatant was unconstitutional. The Court upheld Hamdi's detention, while also ruling that he was entitled to a limited hearing regarding the facts of his detention. The government offered alternative theories in support of Hamdi's detention; the Court's plurality opinion describes them as follows:

The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention through the AUMF [the post-September 11 Authorization for the Use of Military Force].

The Court noted that apprehending military combatants is a necessary incident of the use of military force:

We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.

Thus, neither the language of the Constitution nor the Supreme Court’s jurisprudence can justify a claim that the NSA program is illegal. While the Court has never specifically ruled on the issue, its decisions are entirely consistent with the administration's view that the President has the inherent constitutional authority to obtain foreign intelligence information through warrantless searches. We turn now to the decisions of the federal Courts of Appeal.

This specific question was first addressed by the Fifth Circuit in United States v. [Cassius] Clay, 430 F.2d 165 (5th Cir. 1970). In the course of its opinion rejecting defendant’s claim that his conviction was based on information obtained from illegal wiretaps, the court wrote:

The fifth wiretap was not disclosed to defendant because the District Court found that the surveillance was lawful, having been authorized by the Attorney General, for the purpose of obtaining foreign intelligence information. The Supreme Court has not yet decided whether electronic surveillance for the purpose of obtaining foreign intelligence information is constitutionally permissible [citation omitted], though Mr. Justice White has expressed the view that such surveillance does not violate the Fourth Amendment. [citation omitted]

We…discern no constitutional prohibition against the fifth wiretap. Section 605 of Title 47, U.S.C., is a general prohibition against publication or use of communications obtained by wiretapping, but we do not read the section as forbidding the President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest.

In 1974, the Third Circuit decided United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), where the defendant was convicted of espionage. The court wrote:

In sum, we hold that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were “conducted and maintained solely for the purpose of gathering foreign intelligence information.”

Three years later, the Ninth Circuit decided United States v. Buck, 548 F.2d 871 (9th Cir. 1977), a firearms prosecution. The court said:

Foreign security wiretaps are a recognized exception to the general warrant requirement….

In 1980, the Fourth Circuit decided United States v. Truong, another criminal prosecution that arose out of the defendant’s spying on behalf of the Socialist Republic of Vietnam. The case squarely presented the issue of the executive branch’s inherent power to conduct warrantless surveillance for national security purposes:

The defendants raise a substantial challenge to their convictions by arguing that the surveillance conducted by the FBI violated the Fourth Amendment and that all the evidence uncovered through that surveillance must consequently be suppressed. As has been stated, the government did not seek a warrant for the eavesdropping on Truong’s phone conversations or the bugging of his apartment. Instead, it relied upon a “foreign intelligence” exception to the Fourth Amendment’s warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.

The court agreed with the government’s position:

For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.

The court held that warrantless searches for foreign intelligence purposes are constitutional, as long as the “object of the search or the surveillance is a foreign power, its agent or collaborators,” and the search is conducted “primarily” for foreign intelligence reasons.

The state of the law was summed up by the Second Circuit in United States v. Duggan, 743 F.2d 59 (1984), a terrorism case in which the court, among other rulings, upheld the constitutionality of the Foreign Intelligence Surveillance Act (FISA), which was adopted in 1981. The court wrote:

Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.

Finally, in 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break down the “wall” between law enforcement and intelligence gathering. The Patriot Act modified Truong’s “primary purpose” test by providing that surveillance under FISA was proper if intelligence gathering was one “significant” purpose of the intercept. In the course of discussing the constitutional underpinnings (or lack thereof) of the Truong test, the court wrote:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. 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 therefore supports the government’s contention that FISA searches are constitutionally reasonable.

That is the current state of the law. The federal appellate courts have unanimously held that the President has the inherent constitutional authority to order warrantless searches for purposes of gathering foreign intelligence information, which includes information about terrorist threats. Furthermore, since this power is derived from Article II of the Constitution, the FISA Review Court has specifically recognized that it cannot be taken away or limited by Congressional action.

That being the case, the NSA intercept program, which consists of warrantless electronic intercepts for purposes of foreign intelligence gathering, is legal.

It’s worth noting that all of the cases cited above involved warrantless searches inside the United States. The NSA program, in contrast, involves international communications only, and the intercepts take place at least in part, and perhaps wholly, outside the United States. Thus, the NSA case is even clearer than the cases that have already upheld Presidential power.

[Ogie Oglethorpe]

(continued)

I’m tempted to stop there, since action by Congress can neither add to, nor detract from, the constitutional powers of the executive branch. Because others on both sides have introduced various statutes into the debate, however, I will deal with them briefly.

First, the administration has argued that in addition to its inherent powers, the NSA program is legal because it was authorized by Congress in the post-September 11 Authorization for the Use of Military Force. It is easy to see why the administration wants to employ this argument, since this is the rationale that was adopted by the Supreme Court in Hamdi. And one can certainly argue that the authorization, which says the administration can “use all necessary and appropriate force,” covers intercepting communications, since intelligence gathering is just as much a “fundamental and accepted incident of war” as detaining enemy combatants.

Nevertheless, I don’t think that the statutory argument adds anything to the administration’s position. The response from the other side would be, “Certainly we authorized the executive to collect intelligence, but we didn’t authorize it to break the law or violate the Constitution.” I think that point is well taken. The AUMF would not be interpreted to authorize the President to take actions that are otherwise illegal, just as, in Hamdi, the Court upheld the detention of enemy combatants but also imposed a procedure that it viewed as constitutionally required. So the argument quickly becomes circular: the AUMF did authorize the administration to engage in intelligence gathering, but only where such intelligence gathering is already proper by virtue of the President’s inherent constitutional powers, or other authority. So, in my view, the statutory argument adds nothing to the already clearly-established proposition that the NSA program is legal.

The other statute that has been discussed in connection with the legality of the NSA intercept program is FISA. It has been argued that FISA explicitly or implicitly requires the administration to conduct foreign intelligence surveillance only pursuant to the procedures set up under that statute.

As an initial matter, this argument has already been rejected by the very appellate court that is charged with interpreting and applying FISA, in Sealed Case No. 02-001. So, from the standpoint of critics of the administration’s program, the argument is a non-starter.

It’s interesting, nevertheless, to examine the provisions of FISA with a view toward answering this question: Given that the administration used the FISA warrant procedure for the vast majority of its anti-terror electronic intercepts, why did it bypass the FISA procedure in the relative handful of instances represented by the NSA program? One good answer to this question, of course, is speed. Obtaining a FISA warrant would require a matter of days, at least, and perhaps much longer. But when our forces overseas capture a terrorist and take possession of his laptop or cell phone, time is of the essence. Those phone numbers and email addresses will be useful only until the terrorist’s associates realize that he has been captured or killed. So the first days, hours or even minutes after the numbers and addresses fall into our possession are likely to be critical.

But there may be a second explanation that relates to the jurisdiction of the FISA court. The courts of the United States have jurisdiction within the United States and its possessions; they have no jurisdiction in, say, France or Afghanistan. In the U.S., a court can issue a warrant that requires a telephone company, for example, to cooperate with a government wiretap. It can make no such order in a foreign country. The jurisdictional limits of American courts are reflected, I think, in the scope of the FISA court’s authority as set out in Title 50, Section 1801 of the U.S. Code, the first section of the FISA statute. That section defines the “electronic surveillance” over which the FISA court has jurisdiction:

(f) “Electronic surveillance” means— (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

Under this definition, FISA applies to four categories of electronic surveillance. The first—“ wire or radio communication[s] sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes…”—does not apply, as I understand the NSA program. The NSA intercepts target foreign terrorists overseas and sweep in all of their communications. To my knowledge, they do not “target” “particular, known United States person[s]” who are in the U.S.

The third category likewise has no application. It relates to interception of communications where both the sender and all intended recipients are located inside the United States. The NSA intercepts were authorized only for international communications.

That leaves the second and fourth categories. Note that the applicability of both sections turns on whether the surveillance activity in question takes place inside the United States. In subsection (2), the “acquisition” must occur in the United States. In subsection (4), the surveillance device must be “installed” or “used” inside the United States.

This is the one point where it would be helpful to know more about the details of the NSA operation. Based on what has been publicly disclosed, it seems likely that the NSA intercepts are picked up overseas, not inside the U.S. If that is the case, FISA simply has no application to the program. The answer to the question, “Why didn’t you obtain FISA orders authorizing these surveillances?” may be, “Because we couldn’t.” If the surveillance was outside the jurisdiction of the FISA court, no such orders could be issued. The administration could conclusively answer this question by disclosing where the surveillance equipment is located. But that is, of course, precisely the kind of secret information that the administration doesn’t want the terrorists to know.

In any event, as noted above, FISA might expand, but could not impinge on, the President’s inherent powers under the Constitution, which are more than sufficient to support the electronic intercepts at issue here, wherever they occurred.

One more statute is worth mentioning in the context of the above discussion of FISA: Chapter 19 of Title 18 of the U.S. Code. This is the Electronic Communications Privacy Act of 1986, the basic federal statute that prohibits you and me from wiretapping.

Section 2511 (2) (f) states:

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted. [Emphasis added.]

Thus, Congress has made explicit the fact that no federal statute is intended to affect or limit any foreign intelligence gathering that is conducted outside the scope of “electronic surveillance, as defined in [FISA].” In other words, Congress has made no effort to address electronic surveillance that is carried out outside the United States, and does not target specifically identified American persons. This is consistent with Section 2511 (2)(f)’s statement that FISA and the Electronic Communications Privacy Act are the exclusive means by which the government may intercept domestic communications. Except to the very limited extent encompassed by FISA’s definition of “electronic surveillance,” Congress has never purported to address in any way the interception of foreign or international communications.

There is no mystery about the legality of the NSA intercept program. It is intended to capture foreign intelligence information, including information about potential terrorist threats, and as such, every federal court that has addressed the issue has held that it is within the inherent constitutional power of the President as Commander in Chief. Everything else is immaterial.

This brings us back where we started, i.e., the Constitution. The only constitutional limitation on the President’s power to intercept communications by Americans for national security purposes is that such intercepts be “reasonable.” Is it reasonable for the administration to do all it can to identify the people who are communicating with known terrorists overseas, via the terrorists’ cell phones and computers, and to learn what terrorist plots are being hatched by those persons? Is it reasonable to do so even when—rather, especially when--some portion of those communications come from people inside the United States? I don’t find it difficult to answer those questions; nor, if called upon to do so, would the Supreme Court.

There are, of course, liberal law professors who would like the law to be different from what it is. They are free to develop theories according to which the Supreme Court, should it someday address this issue directly, would rule as they wish. But the administration is entitled to rely on the law as it currently exists. And there is simply no question about the fact that under the Constitution and all controlling precedents, the NSA intercept program is legal.

UPDATE: The Department of Justice has laid out its argument for the legality of the NSA program in a letter to four Senators and Congressmen. Most of it is consistent with my analysis, but Justice also relies on the Authorization for the Use of Military Force, and offers a way around the circularity issue I raised. FISA contains an exception for electronic surveillance that is "authorized by statute," and Justice argues that the AUMF is such a statute. Well, maybe. But I still don't think it adds much to the argument based on the President's inherent Constitutional powers.

Like I said it doesn't smell quite right. The crux of the issue are if there any claims wherein both parties were US peoples thus negating any claims the admin may have used for the express purposes of foreign intelligence gathering. If so and documentable the admin has real issues with their presumptive rationale.


OTOH if and only if the admin can show upon investigation that the communique intercepts were exclusively of the foreign intelligence variety I think their case is fairly solid.

Powerline

[chequita guevara]

Originally posted by MichaeltheGreat
So then, what was the real reason for bypassing FISA?

Imperial hubris. King George thinks his divine right puts him above the Constitution. It's only a scrap of paper after all. The Constitution was made by men (who weren't even Christians!). Georgie was appointed by God!

[chequita guevara]

I guess this is another case where I need to say: I TOLD YOU SO!

[Bosh]

hmmmmmmmmm

If the president, for example, approves something because of the national security...then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law.

Guess who?

[Alexander's Horse]

Originally posted by DanS
I wonder how organizations like MI5 do it. Do they need warrants to surveil? Anybody know?

They need a warrant from a Magistrate for anything invasive like phone taps or searches.

Warrants are actually good for an efficiency reason - if you can't explain on paper to the judge why you're doing the op, you probably shouldn't be doing the op. Also everyone's ass is covered once you got that warrant.

A lot of Bu****e surveillance has just been a massive waste of time and tax payers money - but it makes them look like they're doing something and that's the real reason they like it.