Questions of legality

The Democratic leadership are so easily distracted from national security concerns when the prospect of damaging the President has them salivating.  They pretend the President poses a grave threat to civil liberties by his approval of National Security Agency monitoring al Qaeda without first getting a warrant.  Oh, Democrats don't really mind if the NSA doesn't bother to get a warrant before listening in on Qaeda suspects chatting among themselves overseas.  But should an overseas terrorist under surveillance suddenly decide to make a phone call into the U.S., Democrats would say the NSA is obliged to stop listening and start filling out the warrant applications.  The press helps, by making a dishonest argument of it.  Here's a sample from the Salem, Oregon StatesmanJournal.

Surveillance without a warrant not legal, poll majority says
December 21, 2005

We asked: Accused of acting above the law, President Bush defended a domestic phone and e-mail spying program as an effective tool in disrupting terrorists and said it was not an abuse of Americans' civil liberties. Is surveillance without a warrant legal if the president authorizes it?

You said: Comments appear here as they were submitted to the Statesman Journal. They are listed in the order in which they came with the most recent at the top.

As is typical of mainstream press, abeit local press, when facts don't match the story you'd like to write, take a poll and report that.  A fairer question would have been, "Is surveillance without a warrant to obtain foreign intelligence legal if the president authorizes it?"  But no.  The deliberate implication is that the surveillance was for Republican Dark Purposes.  As you might imagine, responses to the poll were almost entirely unfavorable to the President's position.  Here's one.

NO!! President Bush shows us once again that he believes the laws of our nation are merely suggestions if they get in the way of his agenda.
Marie , graduate school, health care, Salem

While the majority of poll responses came down hard on Bush, it's not clear the courts would do the same.  An Opinion Journal editorial makes the case that monitoring international phone calls and emails to and from al Qaeda suspects is not illegal.

The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "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." And further that "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." [my emphasis]

Former Associate Attorney General John Schmidt goes further by saying the President clearly has the authority to order such activity.  Mr Schmidt, who served in the Clinton Administration Justice Department, cites the same case and some others as he weighs in with this,

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

This comes via John Hinderaker of Power Line who took things a step further by emailing reporters at the New York Times who published the revelations of NSA monitoring.

This morning, I sent the following email to New York Times reporters Eric Lichtblau and Adam Liptak (other Times reporters who have participated in the NSA stories do not publish their email addresses):

In your reporting in the Times you appear to have tried to create the impression that the NSA's overseas intercept program is, or may be, illegal. I believe that position is foreclosed by all applicable federal court precedents. I assume, for example, that you are aware of the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001, where the court said:

"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."

In view of the controlling federal court precedents, I do not see how an argument can be made in good faith that there is any doubt about the NSA program's legality. Therefore, I wonder whether you are somehow unaware of the relevant case law. If you know of some authority to support your implication that the intercepts are or may be illegal, I would be interested to know what that authority is. If you are aware of no such authority, I think that a correction is in order.

Thank you.

John Hinderaker

I will post any response I receive.

Power Line is not so easy for Times reporters to ignore.  An exchange of responses is here, none of which have satisfied Mr. Hinderaker.  Says Mr. Hinderaker,

In my opinion, you should not convey the impression to your readers that the NSA surveillance is likely illegal unless there is, at a minimum, a respectable argument, supported by legal authority, to that effect. Do you think there is such an argument? If so, what is it, and what is the authority?

Thanks again for responding.

Since I haven't heard from Mr. Lichtblau for some time, I'm going ahead and posting the discussion we've had so far. I hope that Mr. Lichtblau will respond to my criticisms of the Times' coverage in my last email; if so, I'll post his answer. In any event, we greatly appreciate his taking the time to engage us in this conversation.

Meanwhile in back the Strata-Sphere, AJ Strata has taken a look at something clearly and unquestionably illegal -- the leak to the Times that revealed surveillance of international calls.  His post is of great interest because he makes a pretty good case for who may have done the leaking.

Mac Ranger was pointing out the Sen Rockefellar had tipped the media to his concerns, illegally, because he was mentioned in the NY Times article. But if you notice, I have emphasized something else in that paragraph regarding a FISA judge.

Recall the reporting on the FISA judge’s resgination

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court’s work.

I now suspect Judge Robertson resigned for leaking information to the press regarding the NSA process - which he would know all too well if FISA was reviewing the NSA surveillance in a post action, verification role.

Tom Maguire has noted the heretofore deafening silence from those members of Congress who attended the dozen or so briefings that were given.  On the Democratic side they're now saying they disapproved all along.  Sure...

Update:  The Washington Times reports that there are previous administrations agree with President Bush on warrantless searches.  The Times even provides a supporting quote from none other than Jamie Gorelick of "wall" fame.

"The Department of Justice believes -- and the case law supports -- that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as he has done, delegate this authority to the attorney general," Clinton Deputy Attorney General Jamie S. Gorelick said in 1994 testimony before the House Permanent Select Committee on Intelligence.

And what does she says now?

In an interview yesterday, Miss Gorelick acknowledged her testimony before Congress but said it pertained to presidential authority prior to 1994, when Congress expanded FISA laws. Left unanswered, she said, is whether that congressional action trumped the president's "inherent authority."

"The Clinton administration did not take a position on that," she said

Does she hold out hope for criminality?  Perhaps, but while the Clinton administration didn't take a position on presidential authority after the expansion of FISA, the Foreign Intelligence Surveillance Court of Review did.

Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

Update II:  Riddle me this! 

Judges on Surveillance Court To Be Briefed on Spy Program

By Carol D. Leonnig and Dafna Linzer
Washington Post Staff Writers
Thursday, December 22, 2005; Page A01

The presiding judge of a secret court that oversees government surveillance in espionage and terrorism cases is arranging a classified briefing for her fellow judges to address their concerns about the legality of President Bush's domestic spying program, according to several intelligence and government sources.

Several members of the Foreign Intelligence Surveillance Court said in interviews that they want to know why the administration believed secretly listening in on telephone calls and reading e-mails of U.S. citizens without court authorization was legal.

Does this mean we're supposed to believe the "court that oversees government surveillance in espionage and terrorism" didn't authorize the monitoring?  Are we also supposed to believe the targets were U.S. citizens?  The real question is, can the press keep this story alive until to '06 elections?

Update III:  The New York Times was originally hoping their blockbuster to hit the '04 election cycle.  Missing that, they were most likely hoping to keep the story alive but under wraps until the '06 elections, but the imminent threat of being scooped by the release of James Risen's book State of War forced their hand. 

Times journalists told NPR the approaching release of Risen's book forced senior editors to focus grudgingly on the NSA story. They otherwise would have been scooped in a book by one of their own correspondents. (Risen had been on book leave for the first five months of 2005, according to the Times.)

What a shame.

Update IV:  The Justice Department responds.

Comments

[Tom]

Did you see what they are planning on doing in Britain? They are going to track car movements of everyone. Talk about civil liberties. This should give people who complain about the patriot act nightmares.

[Tom Bowler]

I didn't see that, but I noticed that we can buy our own car tracking here in the States. Have you heard the ads on radio and TV for those portable devices that provide driving directions when you're lost?

[Bullington]

Tom,

Thanks for your great coverage of this latest media-manufactured "news."

Your take on the timing (re: Risen's book) is an interesting wrinkle that hadn't occurred to me before. Could very well be true.

Keep up the good work!

[Tom Bowler]

Thanks.