John Hinderaker wrote a excellent long analysis, probably the best analysis I have read yet, regarding the NSA wiretaps:
It has been widely suggested that the NSA electronic intercept program that has been carried out by the Bush administration for the last three years is, or may be, illegal. The New York Times and other media outlets have implied, without saying outright, that the program is unconstitutional or otherwise improper. The Democrats have picked the ball up and run with it; the Democratic National Committee sent out an email yesterday that characterized the program as “illegal surveillance” constituting an “explosive scandal.”
In fact, though, if one reviews the controlling legal authorities, it is hard to see what the fuss is about.
[…]The starting point, of course, is the Constitution. Article II of the Constitution sets out the powers and duties of the President. Some people do not seem to realize that the executive branch is coequal with the legislative and judicial branches. The President has certain powers under the Constitution, and they cannot be taken away or limited by Congressional legislation any more than the President can limit the powers of Congress by executive order.
Article II makes the President Commander in Chief of the armed forces. As such he is preeminent in foreign policy, and especially in military affairs. This was no accident; as Alexander Hamilton wrote in Federalist No. 74, “Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.” The federal courts have long recognized that when it comes to waging war, the President, not Congress or the courts, is the supreme authority. In Fleming v. Page, 9 How. 603, 615 (1850), the Supreme Court wrote that the President has the Constitutional power to “employ [the Nation’s armed forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy.”
No one questions this basic principle. If our soldiers or intelligence agencies discover a terrorist in Afghanistan, Iraq or elsewhere, the President or his designees can order an air strike or other attack to kill him. It would be very odd if the President has the authority to kill a terrorist, but not to intercept his telephone calls or search his cave.
There is one relevant constitutional provision that acts as a restraint on the President’s inherent power as Commander in Chief. That is the Fourth Amendment, which states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
So all searches and seizures of Americans or their property (including, as the courts have appropriately ruled, interceptions of telephonic and electronic communications) must be reasonable. Note, however, that this requirement does not apply to terrorists overseas. A Special Forces soldier can pick a cave arbitrarily and search it. He isn’t trying to prosecute terrorists, he is trying to kill them. He doesn’t need probable cause.
The Fourth Amendment includes requirements for the issuance of search warrants, and many critics of the NSA program seem to assume that this means that all searches must be executed pursuant to a warrant. This assumption is wrong. There are dozens of situations where warrantless searches have been approved by the courts. The overriding principle is that searches of Americans (defined to include resident aliens) must be reasonable.
One of the many situations where warrantless searches have been approved is when the government is seeking foreign intelligence information, such as information relating to potential terrorist threats. Next to the Constitution itself, of course, the highest authority is the United States Supreme Court. At least three Supreme Court cases have discussed this subject.
[…]In 1980, the Fourth Circuit decided United States v. Truong, another criminal prosecution that arose out of the defendant?s spying on behalf of the Socialist Republic of Vietnam. The case squarely presented the issue of the executive branch?s inherent power to conduct warrantless surveillance for national security purposes:
The defendants raise a substantial challenge to their convictions by arguing that the surveillance conducted by the FBI violated the Fourth Amendment and that all the evidence uncovered through that surveillance must consequently be suppressed. As has been stated, the government did not seek a warrant for the eavesdropping on Truong?s phone conversations or the bugging of his apartment. Instead, it relied upon a ?foreign intelligence? exception to the Fourth Amendment?s warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.
The court agreed with the government?s position:
For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], ?unduly frustrate? the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.
[…]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.
That being the case, the NSA intercept program, which consists of warrantless electronic intercepts for purposes of foreign intelligence gathering, is legal.
[…]There is no mystery about the legality of the NSA intercept program. It is intended to capture foreign intelligence information, including information about potential terrorist threats, and as such, every federal court that has addressed the issue has held that it is within the inherent constitutional power of the President as Commander in Chief. Everything else is immaterial.
This brings us back where we started, i.e., the Constitution. The only constitutional limitation on the President?s power to intercept communications by Americans for national security purposes is that such intercepts be ?reasonable.? Is it reasonable for the administration to do all it can to identify the people who are communicating with known terrorists overseas, via the terrorists? cell phones and computers, and to learn what terrorist plots are being hatched by those persons? Is it reasonable to do so even when?rather, especially when–some portion of those communications come from people inside the United States? I don?t find it difficult to answer those questions; nor, if called upon to do so, would the Supreme Court.
There are, of course, liberal law professors who would like the law to be different from what it is. They are free to develop theories according to which the Supreme Court, should it someday address this issue directly, would rule as they wish. But the administration is entitled to rely on the law as it currently exists. And there is simply no question about the fact that under the Constitution and all controlling precedents, the NSA intercept program is legal.
That is just a portion of the long article but it’s a must read if you want a detailed analysis of this situation.
The Department of Justice has also laid out it’s authority in this 5 page PDF file.
Either way you look at it, the Democrats have jumped on the bandwagon a bit too quick and are already starting to look foolish. Can’t say it’s really difficult to make a Democrat look foolish tho.
Either way you look at it, the Democrats have jumped on the bandwagon a bit too quick and are already starting to look foolish. Can’t say it’s really difficult to make a Democrat look foolish tho.
See author page
The best analysis I have read so far that even a jarhead such as myself can understand.
Except for the tiny quibble that the President also may not quarter troops in the homes of the citizenry, which is also a limitaton on his powers in this respect, the point, and the post, is indeed highly telling.