Administration Cites Law, Court Precedent
President Bush and Attorney General Alberto Gonzales on Monday cited three areas in which the administration has the authority to conduct warrantless domestic surveillance: presidential powers in Section 2 of the U.S. Constitution; the 2001 congressional authorization for the use of force after the Sept. 11 attacks; and the Supreme Court's decision in the 2004 case of enemy combatant Yaser Hamdi, a Saudi-American citizen captured on the battlefield in Afghanistan who was held for three years without being charged.
On Tuesday, White House spokesman Scott McClellan repeated the legal underpinnings used to justify the "signals intelligence."
"Under Article 2 of the Constitution, as commander in chief, the president has that authority. The president has the authority under the congressional authorization that was passed and clearly stated that, quote, 'The president is authorized to use all necessary and appropriate force.' This was under Section 2 in the authorization for the United States Armed Forces," McClellan said.
"It is limited to people who have — one of the parties to the communication [who has] a clear connection to Al Qaeda or terrorist organizations and one of the parties [who] is operating outside of the United States. And I think that's important for people to know, because there's been some suggestions that it's spying inside the U.S. That's not the case," the press secretary added.
Gonzales told reporters that the Supreme Court decision on Hamdi reinforced the claim that the president was given wide permission in the Sept. 14, 2001, vote by Congress authorizing the president to "use all necessary and appropriate force" against those behind the Sept. 11 attacks.
Gonzales said the congressional authorization did not specifically mention the word "detention," but in the Hamdi case, Justice Sandra Day O'Connor wrote in the majority opinion "that detention of enemy soldiers captured on the battlefield ... had been authorized by the Congress when they used the words, 'authorize the president to use all necessary and appropriate force.'"
"We believe the court would apply the same reasoning to recognize the authorization by Congress to engage in this kind of electronic surveillance," Gonzales said.
The New York Times, which first disclosed the existence of the NSA program last week, also cited unnamed sources who said the administration used two other opinions to justify its actions. One was embedded in a public Justice Department brief from 2002 and another was in a 2002 opinion issued by the Federal Intelligence Surveillance Court of Review that oversees the secretive court that usually deals with terror-related wiretap requests.
In 2002, that FISA review court upheld the president's warrantless search powers, referencing a 1980 Fourth Circuit Court of Appeals decision. That court 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," wrote the court.
"The Foreign Intelligence Court of Review, which is the highest court that's looked at these questions, has said that the president has the inherent constitutional authority to use electronic surveillance to collect foreign intelligence and Congress cannot take away that constitutional authority. That's a pretty good argument," Bryan Cunningham, former National Security Council legal adviser, told FOX News.
Cunningham offered several other circumstances under which FISA warrants would be unnecessary.
"If the physical interceptions were done outside the United States and if it were the communications of the foreign person that were targeted, not the person inside the United States, or if the person inside the United States was not found to be a U.S. person — that is a citizen or resident or permanent resident alien — then those circumstances would potentially take this out of FISA, and therefore, not require a FISA warrant," he said. "It principally depends on where the collection is being done."
These statements seem reasonable.