President well within his rights

First, the president, when he conducted electronic surveillance on transmissions between people overseas and someone in United States, was exercising his legal authority as a military commander, and not as a law enforcement officer. The president has a large array of powers under the Constitution during wartime, and the intent of the surveillance was not to build a case for criminal prosecution, but to prevent attacks against the United States.

It’s unfortunate that many people fail to realize this when attempting to label the surveillance as “illegal.”

Second, the National Security Agency is performing this surveillance by collecting the information outside the border and not via a physical wiretap. There is no requirement for a warrant in these situations, as there is no “reasonable expectation of privacy” for foreign communications. The Foreign Intelligence Surveillance Act does not apply.

Even the FISA court in a 2002 ruling affirmed the position that the president has the “inherent constitutional authority to conduct warrantless foreign intelligence surveillance.” This means that the “searches without warrant” reference to the Fourth Amendment in “Still must adhere to law” is invalid. Remember, we are talking about collecting foreign intelligence as part of a military operation, not as part of a law enforcement action.

Additionally, the legislative branch may not enact legislation (i.e. FISA) that infringes upon the power given by the Constitution to the executive branch. The president has the constitutional authority to acquire foreign intelligence without a warrant, and monitoring overseas conversations during wartime falls into this category, even when one side of that conversation is someone in the United States.

The president could have gone through FISA, but was not obligated to do so. I believe the reason the president chose not to use FISA was to rightfully exercise his executive powers allowed in defending national security based on the congressional authorization approved immediately after the Sept. 11 attacks.

The framers of the Constitution created a strong executive branch and provided the president with authority to act to defend national security in a time of war. The only constitutional methods Congress could employ to interfere with the president in this matter would be by cutting off funds or impeachment.

The first writer should be more careful about stating people “displayed complete ignorance” or that someone is “unfamiliar with the facts.” More important, repeating the statement that “the NSA’s surveillance was illegal” over and over does not make it so.

I doubt anyone would object if there were another airliner piloted by terrorists if the president authorized its destruction. This would kill US citizens, in US airspace, and certainly "violate their rights" even though they were completely innocent.

The difference is the president is acting as commander in chief, protecting the country from an attack under way.

Listening on phone conversations, while Osama is still out there plotting, comes under the same authority.

narby: "The difference is the president is acting as commander in chief, protecting the country from an attack under way."

The President's authority comes from more than just his role as Commander-in-Chief, but also as the sole constitutional authority over foreign affairs.

"However, because of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm what we held in United States v. Clay, supra, that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence."

--United States v. Brown, 484 F.2d 418, 426 (1973)

"We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance."

--U.S. v. Truong Dinh Hung, 629 F.2d 908, 913 (1980)

"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."

--United States v. Duggan, 743 F.2d 59 (1984)

"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information."

--In re Sealed Case, 310, F3d. 717, 742 (2002)

"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 re Sealed Case, 310, F3d. 717, 742 (2002)

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