Its Legal

[Steve]

It's Legal

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.

Schmidt quotes the same language from the 2002 decision of the Foreign Intelligence Surveillance Court of Review that we have cited repeatedly:

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."

This morning, I sent the following email to New York Times reporters Eric Lichtblau and Adam Liptak (other Times reporters who have participated in the NSA stories do not publish their email addresses):

In your reporting in the Times you appear to have tried to create the impression that the NSA's overseas intercept program is, or may be, illegal. I believe that position is foreclosed by all applicable federal court precedents. I assume, for example, that you are aware of the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001, where the court said:

"The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], 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. *** 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."

In view of the controlling federal court precedents, I do not see how an argument can be made in good faith that there is any doubt about the NSA program's legality. Therefore, I wonder whether you are somehow unaware of the relevant case law. If you know of some authority to support your implication that the intercepts are or may be illegal, I would be interested to know what that authority is. If you are aware of no such authority, I think that a correction is in order.

 

[Steve]

Bill Otis worked on the Truong case and writes:

As you may have seen if you read the list of counsel in the Truong case, I was one of the government's lawyers. Although our months-long warrantless wiretap was conducted before FISA was passed, the case was decided afterwards. In a footnote, the Court, through Winter, J. (a liberal Democrat) plainly implies that the wiretap, which it unanimously held passed muster under Fourth Amendment standards, would do so as well under FISA's.

In my view, this conclusion is correct. FISA cannot sensibly be read to disable the President from acting to protect the country from what might be imminent threat in time of what any sensate person must regard as war. Indeed, the argument for the President's power in the present circumstances is considerably stronger than it was when my colleagues and I wrote the Truong brief. As in Truong, there had been no declaration of war per se, and, even more important, such war as there was had basically ended. (The whole deal with Truong, if I remember correctly, was that he was the conduit for a State Department traitor named Humphrey, who was sending to the North Vietnamese documents disclosing our government's "bottom line" position for pulling out).

There has been no per se declaration of war against al Qaeda either, but there is at least as much of a war going on now as there was in the late 1970's in Vietnam. And the present war is far more dangerous: our cities are the battlefields; the weapons probably available to the enemy are far more gruesome; their delivery is far easier to bring about and conceal; and the speed with which the enemy can contact its cohorts in this country and act on its plans is far greater now than it was then. Moreover, the war against terror is scarcely winding down -- it is, to the contrary, becoming more far-flung and more dangerous.

And there is this as well (which the Truong decision does not note): Even in ordinary criminal cases, where the Supreme Court has held that a warrant is presumptively required by the Fourth Amendment, it has also long recognized an exception for what are known as "exigent circumstances." In other words, when the government is facing what it reasonably views as a now-or-never chance to catch the bad guys, it is not required to obtain a warrant.

This being the case for your run-of-the-mill drug deal, it must surely be the case where the cost of failure is so much higher -- indeed higher than any crime the country has ever seen. To view it differently is to prefer brain-dead legalism to survival.

FISA was passed in the aftermath of some rancid Nixonian abuses of the intelligence gathering capacities of the United States. The present surveillance has been and (presumably) is being conducted in what is truly a different universe. As usual, the liberals are stuck in 1969, fighting yesterday's battles with yesterday's ideas. Sometimes this is merely quaint. If they get away with it this time, it stands a greater chance of being fatal.

Bill Otis
(former Assistant US Attorney for the Eastern District of Virginia)

 

[Steve]

Has any administration ever backed the position now urged by the Times? It doesn't appear so. Media sources point out that the Clinton administration engaged in warrantless wiretapping. Deputy Attorney General Jamie S. Gorelick wrote that the President "has inherent authority to conduct warrantless searches for foreign intelligence purposes." That is an accurate summary of the holding of every federal court decision that has addressed the issue.

On May 23, 1979, President Jimmy Carter signed an executive order that said, "Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order."

The Clinton-era "Echelon" electronic surveillance program went far beyond anything now under discussion, and became controversial precisely because of its extraordinary scope. A transcript of a 60 Minutes program on Echelon is available here. But the basic concept that the President could order warrantless searches for national security purposes wasn't controversial during the Carter administration or the Clinton administration. Why is it suddenly controversial now?

Because Disagreeable Hates President Bush and Supports lawless Terrorists..

But in the process, Echelon's computers capture virtually every electronic conversation around the world.

http://cryptome.org/echelon-60min.htm

There it is a liberal reputable news source...a link....and it covered every thing from Baby moniters to Disagreeable's telephone.....and Clinton Gore and Reno signed it into power...which I proved in the secret documents released under the FOA that she laughed at.......

and more liberal sources....

Everywhere in the world, every day, people's phone calls, emails and faxes are monitored by Echelon, a secret government surveillance network.

http://www.cbsnews.com/stories/2000/02/24/60minutes/main164651.shtml


guess it's time to re-impeach Clinton :lol: :lol: :lol: :lol:

 

[Disagreeable]

te="Steve"]

Has any administration ever backed the position now urged by the Times? It doesn't appear so. Media sources point out that the Clinton administration engaged in warrantless wiretapping. Deputy Attorney General Jamie S. Gorelick wrote that the President "has inherent authority to conduct warrantless searches for foreign intelligence purposes." That is an accurate summary of the holding of every federal court decision that has addressed the issue.

On May 23, 1979, President Jimmy Carter signed an executive order that said, "Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order."

The Clinton-era "Echelon" electronic surveillance program went far beyond anything now under discussion, and became controversial precisely because of its extraordinary scope. A transcript of a 60 Minutes program on Echelon is available here. But the basic concept that the President could order warrantless searches for national security purposes wasn't controversial during the Carter administration or the Clinton administration. Why is it suddenly controversial now?

Because Disagreeable Hates President Bush and Supports lawless Terrorists..

But in the process, Echelon's computers capture virtually every electronic conversation around the world.

http://cryptome.org/echelon-60min.htm

There it is a liberal reputable news source...a link....and it covered every thing from Baby moniters to Disagreeable's telephone.....and Clinton Gore and Reno signed it into power...which I proved in the secret documents released under the FOA that she laughed at.......

and more liberal sources....

Everywhere in the world, every day, people's phone calls, emails and faxes are monitored by Echelon, a secret government surveillance network.

http://www.cbsnews.com/stories/2000/02/24/60minutes/main164651.shtm

guess it's time to re-impeach Clinton :lol: :lol: :lol: :lol:

From your link: "Democracies usually have laws against spying on citizens. But Frost says Echelon members could ask another member to spy for them in an end run around those laws.
For example, Frost tells Kroft that his Canadian intelligence boss spied on British government officials for Prime Minister Margaret Thatcher. "(Thatcher) had two ministers that she said, quote, 'they weren't on side,' unquote...So my boss...went to McDonald House in London and did intercept traffic from these two ministers," claims Frost. |"The British Parliament now have total deniability. They didn't do anythingWe did it for them."

Nowhere in that article did it say Clinton authorized warrantless wiretaps. Nowhere in the article did it say Americans were eavesdropped on by the US government. So keep spinning.

As for Jimmy Carter, I'll post it again, with links. So wipe the egg off your face, Steve.

Carter signed this "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.
http://www.fas.org/irp/offdocs/eo12139.htm

And that section says: "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party"

http://www4.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001802----000-.html

What media sources are saying Clinton did illegal wiretaps? Show me a link.