Legal Authorities Supporting the Activities of the NSA Described by the President

DOJ via Findlaw ^ | Department of Justice

[airedale]

Legal Authorities Supporting the Activities of the National Security Agency Described by the President

This is a 42 page justification of the President use of NSA to listen into the communications into and outside of the US in communication with al Qaeda members or operatives. It is very dense legal arguments. It is probably too tough for the MSM to read and understand let alone comment on it accurately and fairly.

It is in PDF format

http://news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf

[coconutt2000]

It boils down to the difference between law enforcement and national security?

[Wally_Kalbacken]

Al Gore: Shove this controlling legal authority up your a$$!

[airedale]

In a way. The arguments are pretty good. It really ties in the AUMF, Authorization to use Military Force, that Congress passed by overwhelming majorities twice to bolster the Presidents inherent powers. I really like the argument that AUMF supersedes the FISA statutes where al Qaeda is concerned. It's not a "slam dunk" but anyone reading it would have to come to the conclusion that the President is on solid legal ground. Of course reading it let alone understanding it is too much to ask of the MSM.

[Publius6961]

DIRECT LINK

[hershey]

AlGore isn't pleased.

[ThomasPaine2000]

I think your conclusion is correct. After watching the "democrat sub-committee hearing", in the BASEMENT of the Capital last night on C_SPAN, (the Conyers committee); this point paper shoots every one of the lefts arguments for "high crimes and misdemeanors", and by inference, impeachment, out of the water.

[TASMANIANRED]

bump

[mumps]

It's not a "slam dunk" but anyone reading it would have to come to the conclusion that the President is on solid legal ground.

Correct me if I'm wrong, but the final arbiter of constitutionality is the Supreme Court, not the DOJ, right?

[airedale]

Yes SCOTUS is the arbiter of constitutionality, but that doesn't mean that DOJ can't write a decent brief that makes strong constitutional arguments. I think they did just that and that anyone reading the arguments would have to come away with the conclusion that President Bush is on solid legal ground. That isn't a 100% guarantee he'd win if SCOTUS decided to hear the case but it is better than even money that he'd win.

[Mind-numbed Robot]

Correct me if I'm wrong, but the final arbiter of constitutionality is the Supreme Court, not the DOJ, right?

Nope, you are wrong. The final arbiters are freepers. :-)

[mumps]

That isn't a 100% guarantee he'd win if SCOTUS decided to hear the case but it is better than even money that he'd win.

Still, a pretty risky approach if SCOTUS goes against the Bush administration and crucial evidence is thrown out. Why not follow established protocols -- including revising FISA -- and ensure the integrity of the evidence?

[mrsmith]

excellent read, they left out the best authority though:

The president's constitutional war powers were debated and defined in the convention in 1787:
"FRIDAY AUGUST 17th. IN CONVENTION
...Mr. MADISON and Mr. GERRY moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks.
Mr. SH[E]RMAN thought it stood very well. The Executive shd. be able to repel and not to commence war."
The vote was 7 to 1.

James McHenry's notes of the convention:
"Debated the difference between a power to declare war, and to make war — amended by substituting declare "

(And finished just in time for the kickoff!)

[airedale]

Your still thinking that they are criminals covered by civilian law and courts. They aren't they are enemy combatants (spies also fall under that classification). They would be covered by military law as applied to enemy combatants. The same rules of evidence don't apply. You don't get a warrant to arrest an enemy combatant. You either kill or capture them. You don't arrest them. If you try them you try them as spies or war criminals under military law and military rules of evidence. That's the reason for the consistent referral in the document to the powers of the Commander in Chief and AFUMF in the document. That's why the argument is so solid.

Second congress passed a law that excludes the court from having authority over enemy combatants to further clarify the issue. That's got the lawyers for the prisoners in GITMO really upset. They are fighting it, but they will loose because the constitution gives the congress the power to give or take away jurisdiction of the courts. Finally the effort is to prevent attacks and damage not try people for crimes.

FISA BTW only covers US persons not everyone in the US. A US person is specifically specified in the FISA act. They have to be either a US citizen or a permanent resident. If they aren't a US person then the FISA rules don't apply to them. Also the interception of the call has to be made in the US. If the interception is made in say England where we have a major listening post then even though the translation etc is done in the US the FISA rules don't apply.

The other reason for not staying with FISA has to do with some technical issues if I understand Echelon and the capability of the systems as an outsider. The system stores data contained in the phone conversations in digital form. When the NSA comes across something important in the current world they go back and pull the prior calls to and from that number and translate them. These calls go back further than 72 hours and that's a FISA limitation.

You might want to read Victoria Toesing's Do Al Gore and other Democrats really want to keep the government from finding al Qaeda agents in the U.S.? at the Opinion Journal for more info http://www.opinionjournal.com/editorial/feature.html?id=110007848

[mumps]

Your still thinking that they are criminals covered by civilian law and courts. They aren't they are enemy combatants (spies also fall under that classification).

Not necessarily. Look at the case of Jose Padilla, who started out as an enemy combatant and is now being tried in the civilian/criminal courts. There will inevitably be some crossover.