[Boot Hill]

MarneyK:   "My highly conservative former law professor, Richard Epstein, said on Lou Dobbs this week that the President's NSA spying initiative is illegal."

With all due respect to your former law professor, in the NSA spying controversy, he doesn't know what he's talking about. First allow me to post his errors from your quotes, followed then by what the courts have concluded are the actual powers of the President, so you can compare the two and see for yourself.

Richard Epstein's error #1:   "ignoring the Act on the ground of 'inherent powers' is beyond any authority granted the Executive in the Constitution"

Richard Epstein error #2:   "the President's inherent powers as commander in chief of the armed forces permit him to authorize military action, but not surveillance of conversations involving domestic persons"

"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)

Note several things about those decisions.

First, contrary to your law professor's opinion that the warrantless intercepts goes "beyond any authority granted the Executive in the Constitution", these decisions clearly demonstrate just the opposite. That virtually every court to have addressed this matter, both pre-FISA as well as post-FISA, have concluded that the President in deed has the inherent constitutional authority to conduct warrantless searches to obtain foreign intelligence information.

Second, even the FISA court itself has concluded that the President has the inherent constitutional power to conduct warrantless searches to obtain foreign intelligence information.

Third, contrary to your law professor's opinion that the President's power emanates solely from his duties as Commander-in-Chief, these decisions explicitly shows that the President's authority also arises from his duties as this nation's sole representative in matters of foreign affairs, and that includes foreign intelligence gathering.

Fourth, contrary to your law professor seems to believe regarding FISA, Congress can NOT infringe on President's constitutional powers by any ordinary act of Congress. Absent a constitutional amendment, they have no authority to do so.

Fifth, contrary to your law professor's opinion, the present controversy does NOT involve "domestic" intelligence intercepts, as that term is specifically used by the courts, the law and the intelligence agencies, but rather "foreign" intelligence intercepts. Here's how to recognize the difference...

The difference between "domestic" and "foreign" national security intelligence intercepts has nothing to do with the point of origin, destination or interception of the communication. Nor does it depend on whether either party is a U.S. citizen or resident. The difference between "foreign" and "domestic" national security intercepts is the source of the threat, i.e., whether the threat to national security is origninating from outside this country and whether at least one party to the communication was acting as, or on behalf of, an agent of that foreign power.

That distinction was never made more clear than it was in the Truong case. Truong, a U.S. resident alien, and Humphrey, a U.S. citizen and an employee of the USIA, conspired to commit espionage by delivering confidential government documents to the communist government of Vietnam from 1976 to 1977. In this case, the court held that the intercepts did not require a warrant since both defendants were acting as agents of a foreign power and thus the intercepts were a legitimate exercise of foreign national security intelligence gathering.

Note that in Truong, both the origin and destination of the intercepted calls were within the United States. Note also, that both defendants were U.S. residents, and in Humphrey's case, a U.S. citizen, as well. Yet the court held that these were foreign national security intercepts.

Hope that you find that information useful. And sorry for having to be so hard on your former law professor.

[Cboldt]

Nice job of fluffing up "the line" between foreign intelligence and everything else. So, what is to be done with this foreign intelligence information? For example, what part of it is admissible?