Sunday, February 05, 2006

Some of the NSA issues that people question

Addressing a couple of points that have been raised...

  • The media keeps referring to the NSA program as "domestic spying." According to the information in the public domain, I don't believe that it's accurate to do so. As I've said. The "spying" that is taking place, the communications that are being intercepted, are all originating with a) persons suspected of being Al Quaeda or affiliated with Al Quaeda who are b) outside the United States. (Presumably there have been communications monitored within the United States as well, but I'm not aware of any allegations that any of those have taken place without a warrant.) The fact that the persons under surveillance are, on occasion, contacting persons within the United States does not, in my opinion, make the surveillance "domestic." In the same way that a wiretap on the phone of a mobster who happens to order a pizza from Dominos doesn't mean that Dominos is under surveillance.


  • The best analysis that I've seen of the legal and constitutional issues surrounding the NSA surveillance program was written by John Hinderaker and posted here. I think that the money quote is from the second circuit court in 1984, United States v. Duggan, in which they summed up the state of constitutional law as so:
    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.

    Going back to John's analysis,
    Finally, in 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break down the “wall” between law enforcement and intelligence gathering. The Patriot Act modified Truong’s “primary purpose” test by providing that surveillance under FISA was proper if intelligence gathering was one “significant” purpose of the intercept. In the course of discussing the constitutional underpinnings (or lack thereof) of the Truong test, the court wrote:
    The Truong court, 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. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. 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. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

    That is the current state of the law. The federal appellate courts have unanimously held that the President has the inherent constitutional authority to order warrantless searches for purposes of gathering foreign intelligence information, which includes information about terrorist threats. Furthermore, since this power is derived from Article II of the Constitution, the FISA Review Court has specifically recognized that it cannot be taken away or limited by Congressional action.

    (emphasis mine.)


    In other words, absent some new ruling by the United States Supreme Court, there is no compelling argument that can be made that what the President has authorized on the part of the NSA is illegal or unconstitutional.



  • The fact that the President allegedly asked for explicit authorization for this program in no way proves, or even implies, that he didn't have, or suspected he didn't have, or feared that he didn't have, implicit constitutional authority. Reason and common sense dictates that the more Congress explicitly signs up for ahead of time, the less that they'll be able to convincingly complain about later. In other words, he may have brought this up specifically to avoid the situation that we're currently in, where a program that the administration thinks is both necessary and proper is being fought about by partisans in the media...




Technorati tags: NSA, Surveillance, terrorist, program

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