Administration Lays Out Legal Case for Wiretapping Program


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rick_reno
January 20, 2006, 03:19 AM
You might not like it - but I remain convinced he has the authority to do this.

http://www.nytimes.com/2006/01/19/politics/19cndnsa.html?ei=5065&en=b0d0354073974fe6&ex=1138338000&partner=MYWAY&pagewanted=print

WASHINGTON, Jan. 19 - The Bush administration today offered its fullest defense of the National Security Agency's domestic eavesdropping program, saying that congressional authorization to defeat Al Qaeda after the Sept. 11 attacks "places the president at the zenith of his powers in authorizing the N.S.A. activities."

In a 42-page white paper, the Justice Department expanded on its past arguments in laying out the legal rationale for why the N.S.A. program does not violate federal wiretap law and why the president is the nation's "sole organ" for foreign affairs.

The defense comes at a critical time in the administration's effort to quell the growing political uproar over the N.S.A. program. House Democrats will be holding their first hearing Friday on the legality of the program, and the Senate Judiciary Committee has scheduled another hearing in two weeks. A number of legal analysts, meanwhile, including those at the nonpartisan Congressional Research Service, have questioned the legality of the program in strong terms.

But the Bush administration appears undeterred by the criticism. In its white paper, it turned time and again to the congressional authorization of Sept. 14, 2001, even though the Congressional Research Service study was particularly skeptical of this line of defense.

The white paper "is not a blank check that says the president can do whatever he wants," said Steven G. Bradbury, an acting assistant attorney general at the Justice Department. But at the same time, he said, the president must use all the tools available to him to fight terrorism.

Vice President Dick Cheney defended the administration's approach today in a speech before the Manhattan Institute for Policy Research in New York City.

"A spirited debate is now under way, and our message to the American people is clear and straightforward," Mr. Cheney said. "These actions are within the president's authority and responsibility under the Constitution and laws, and these actions are vital to our security."

In his appearance before the institute, Mr. Cheney defended the program as proper and legal in every respect. "The entire program undergoes a thorough review within the executive branch every 45 days," Mr. Cheney said. "After each review, the president determines once again whether or not to reauthorize the program. He has done so more than 30 times since Sept. 11, and he has indicated his intent to do so as long as our nation faces a continuing threat from Al Qaeda and related organizations."

The president authorized the program after the Sept. 11 attacks, allowing the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

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Bartholomew Roberts
January 20, 2006, 03:35 AM
Check out FISA section 1811 (http://caselaw.lp.findlaw.com/casecode/uscodes/50/chapters/36/subchapters/i/sections/section_1811.html)... during a declaration of war it authorizes the President to conduct warrantless wiretapping for 15 days and any wiretap without a warrant beyond that date is illegal according to the FISA legislation.

So Bush is basically constrained to a few interpretations:

1) Congress authorization of military force somehow overcomes FISA even though he only briefed 8 members of Congress on the program.

2) The President has the Constitutional authority under his powers to direct foreign intelligence gathering to wiretap any person talking to damn foreigners and it just was never invoked by any of the past five Presidents.

RealGun
January 20, 2006, 07:38 AM
I would feel better about investigation initiatives proposed by Democrats if I thought they genuinely cared more about citizens rights than getting reelected and regaining a congressional majority.

Manedwolf
January 20, 2006, 09:39 AM
Check out FISA section 1811 (http://caselaw.lp.findlaw.com/casecode/uscodes/50/chapters/36/subchapters/i/sections/section_1811.html)... during a declaration of war it authorizes the President to conduct warrantless wiretapping for 15 days and any wiretap without a warrant beyond that date is illegal according to the FISA legislation.

So Bush is basically constrained to a few interpretations:

1) Congress authorization of military force somehow overcomes FISA even though he only briefed 8 members of Congress on the program.

2) The President has the Constitutional authority under his powers to direct foreign intelligence gathering to wiretap any person talking to damn foreigners and it just was never invoked by any of the past five Presidents.

And we have still never had a congressional declaration of war.

Manedwolf
January 20, 2006, 09:41 AM
I would feel better about investigation initiatives proposed by Democrats if I thought they genuinely cared more about citizens rights than getting reelected and regaining a congressional majority.

If someone you don't particularly like warns you that someone wandering around behind you has a knife, do you stop and look harder at the possible danger, or do you ignore it because the warning came from someone you don't particularly like?

Be objective. The law is the law, the constitution is the constitution. Focus on the facts in the matter, not what politicians are doing with it.

RealGun
January 20, 2006, 10:12 AM
If someone you don't particularly like warns you that someone wandering around behind you has a knife, do you stop and look harder at the possible danger, or do you ignore it because the warning came from someone you don't particularly like?

Be objective. The law is the law, the constitution is the constitution. Focus on the facts in the matter, not what politicians are doing with it.

If everyone was objective, Abraham Lincoln wouldn't be revered nor would many of the past Presidents. It all depends upon whether a President achieves the effect we desire or with which we agree. If the Constitution gets in the way and things need to be done, find away around it. It's too hard to change it when it needs to be changed.

I would prefer that the administration get court approval as Congress intended. But I still think this case is a tempest in a teapot, grasping at any reason to attack George Bush. It is not objective and is disingenuous to try to blow it up into talk of impeachment. There is no real desire to protect rights. The real desire is to attack the President.

Preacherman
January 20, 2006, 10:20 AM
I don't think there's much doubt remaining that the President does, indeed, have the authority to use such interception capabilities w.r.t. foreign intelligence-gathering. The Wall Street Journal had an interesting article (http://www.opinionjournal.com/editorial/feature.html?id=110007734) about this a while back. An excerpt:

Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.

Bartholomew Roberts
January 20, 2006, 12:32 PM
Well, the WSJ is correct that the President has the power to conduct foreign intelligence. However, just because he has the power to conduct foreign intelligence, it doesn't mean he has the power to monitor American citizens and call it "foreign intelligence" to cover himself.

I'd also add that when the Congressional Research Service characterizes your legal argument as "doubtful" that is probably not a good sign for the firmness of your foundation.

The thing that bothers me most about this is that NSA already had considerable leeway in monitoring American citizens without a wiretap. If they thought you were a terrorist, they already had no need to ask for a warrant - and even when they did need a warrant, they were almost 100% assured of getting one and could ask for it 72 hours after the fact.

It bothers me greatly that with these restrictions as loose as they were, the President was still unable to do whatever it is he claims he needs to do and had to issue a new authorization in 2002.

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