The Legality of the NSA's Intercept Program

Power Line ^ | 12/20/05 | John Hinderaker

[frankjr]

I've been working on and off on the legal issues surrounding the NSA's interception of communications directed to al Qaeda members overseas, some of which originated in the United States. I haven't had time yet to write up a full analysis of the case law. For now, let me just say that the question does not appear to be close. Under all existing authorities, the NSA program, as we understand the facts, was legal.

For now, let me simply quote the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001:

"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."

And those are cases that deal with electronic intercepts inside the United States. A fortiori, intercepts outside the United States that coincidentally sweep in messages sent from America would seem to be obviously within the President's inherent Article II powers. So far, I have found no authority to the contrary.

[frankjr]

Looking forward to Powerline's full supporting analysis.

[Grampa Dave]

There is a thread up at this time which is very pertinent to your thread.

http://www.freerepublic.com/focus/f-news/1544183/posts

Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden (NSA)
The White House ^ | December 19, 2005

http://www.freerepublic.com/focus/f-news/1544183/posts




Posted on 12/20/2005 12:50:27 PM PST by hipaatwo

[upchuck]

Ya reckon sleazbag slimeball John Conyers will now send President Bush an, "Oops, my bad" letter?

LOL!!

[Peach]

It was just noted on FNC that Clinton used warrantless searches and wiretaps a number of times, including on US citizen Aldrich Ames.

There goes the left's argument. Right down the drain. LOL

[traderrob6]

It comes from this article in the WSJ

http://www.opinionjournal.com/editorial/feature.html?id=110007703

Related....

http://exposingtheleft.blogspot.com/2005/12/bush-gets-key-backing-on-spy-policy.html

[Peach]

Thanks for posting this.

What I keep being told is that this is fine for foreigners, but that US citizens are except from wiretapping without a warrant.

And yet, Clinton didn't get a warrant for the Aldrich Ames taps and searches. But then, Clinton was a democrat and we're getting sort of used to the different rules based on party affiliation. LOL

[Grampa Dave]

"It was just noted on FNC that Clinton used warrantless searches and wiretaps a number of times, including on US citizen Aldrich Ames."

"There goes the left's argument. Right down the drain. LOL!"

Thanks, I hear from some little birdies that the wonderful Jimmmmmmmy Carter has a lot to answer re his executive orders of monitoring Americans.

[jwalsh07]

This is getting a bit too much. I start posting that case 3 days ago and now it's all the rage.

Whatever happened to attribution? :-}

[WilliamofCarmichael]

Ya can't blame the Clintons for putting together domestic spying but the Clinton administration raised its use to an art (Spying for dollars?):

See this old Insight Magazine article.

http://www.euronet.nl/~rembert/echelon/clinton.html

"Did Clinton Bug Conclave for Cash?"

This just in: Someone hacked into CNN radio "news"! A break from Bush bashing occurred, mark 1500 hours, 20 Dec., 2005. CNN briefly resembles real news.

I just heard the 3:00PM broadcast cite newsmax.com (newsmax.com?!! On CNN?) and newsmax's report on the above. They actually said it. The Clinton administration spied for cash.

[frankjr]

I was just watching Fox News and I heard a clip that made it sound like, from a technical perspective, all calls were intercepted outside of the U.S....whether they originated inside or outside of the U.S. I wasn't paying that close attention, so I may be wrong, but it may be an interesting twist. I find the technical aspects of this interesting (but I used to work in the telecom industry).

Clinton ran into domestic communication with his Echelon program. How did he get away with that? I am waiting for a MYT article comparing the programs.

US citizens are exempt from "unreasonable" searches per the Constitution, but 'no warrant' does not mean unreasonable. The President has powers too...especially as it relates to national security.

[Peach]

Good point about the unreasonable part, although I do have an attorney on FR constantly telling me that US citizens must be except from warrantless searches or go through the FISA process. No exceptions. I find that impossible to believe. And so did Clinton. LOL

[Peach]

I saw that thread last night about the unlovely Carter.

And, of course, it was RFK who wiretapped Martin Luther King, although I am assuming they did have a warrant.

[frankjr]

Do you think it would make a difference if the call was (physically) intercepted overseas whether it originated or terminated domestically?? (if this question makes sense)

[jwalsh07]

No problem, I 'm not looking for accolades, just joking with my best friend here at FR. Torie is a very smart attorney and I'm a blue collar guy. I like to tweak him once in a while.:=]

[frankjr]

There are attorneys arguing their case on both sides...but that is nothing new. ;)

[MizSterious]

Thanks for these links. I've heard many commentators say this indeed legal, but it's good to have something to show them--case quotes, and so on. This is most helpful!