Different River

”You can never step in the same river twice.” –Heraclitus

December 22, 2005

It Seems to be Legal

Filed under: — Different River @ 9:00 pm

Lots of folks with the right experience — both Democrats and Republicans — seem to be coming out with convincing arguments that President Bush’s “impeachable” executive order authorizing certain eavesdropping of terrorist suspects and contacts without a court order is in fact perfectly legal.

First John Schmidt, Associate Attorney General in the Clinton Administration, writes:

President Bush’s post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

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.”

In other words, even the court that grants the warrants concedes that in certain situations, the warrants are not needed — and these situations are those under discussion now.

Schmidt also noted, as I did earlier, that Jamie Gorelick, who was Deputy Attorney General in the Clinton Administration, and more recently a member of the “9/11 Commission,” testified before Congress on July 14, 1994:

“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 has been done, delegate this authority to the Attorney General.”

Liberal Law Professor Cass Sunstein of the University of Chicago is not entirely decided, but he seems to think it’s likely the President has the authority to wiretap people against whom he also has the right to use military force. The alternative is truly bizzarre — he can order a terrorist bombed, but can’t listen to his phone calls?

(Libertarian?) Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit (and who also teaches at the University of Chicago Law School) writes in the Washington Post contends that this type of surveillance is not a threat to civil liberties. When a libertarian federal judge is willing to say something like that in public, I think it means he thinks it’s legal, also.

John Hinderaker, also a lawyer, quotes Schmidt, and adds additional case citations to make that case that it’s legal, and takes the New York Times to task for ignoring the relevant court decisions:

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.

And, the Justice Department has issued a five-page statement explaining why it’s legal.

Meanwhile, the Los Angeles Times carries the allegation that the New York Times has been sitting on this story for a long time, and brought it up now to either (1) influence Congress’ vote on renewing the PATRIOT Act (which has nothing to do with the eavesdropping here), or (2) to bring attention to the issue ahead of the publication next month of a book by a New York Times reporter on the Bush Administrations spying programs.

2 Responses to “It Seems to be Legal”

  1. The Other Mike S Says:

    The president’s ability to gather foreign intelligence is limited as soon as a person legally living in America is found to be in the loop. Per US CODE: Title 50,1802 (a)(1)(B):

    (B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

    So, this is saying that if you know or are likely to know that a US person is involved, you can’t do it. Bush said he knew.

    Ahh, you say, there is the foreign agent/terrorist loop hole. No, there’s not.

    US CODE: Title 50,1804. Applications for court orders (a)(4)(A) requires a warrant if:

    (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power;

    So, if you know the person is an agent/terrorist, you MUST obtain a search warrant, regardless of their location.

    There is a great analysis of this whole mess at balkin.blogspot.com on December 22, by Marty Lederman.

  2. R. Scott Pennington Says:

    What I believe the above comment ignores is that a)FISA
    contains a provision that if Congress authorizes the action
    (in this case through the AUMF) then it is legal, and b) that
    there is federal appelate court precedent that clearly
    indicates that any Congressional infringment of the President’s
    power to engage in foreign surveillance without a warrant
    would be unconstitutional. The law is what the courts say it
    is, not what anyone reading any particular statute or even the
    Constitution itself might say it is. The uniform flaw I see
    in the critics of the President is that they rely solely on
    their own interpretation of FISA and ignore what the courts
    have said about the 4th Amendment and the separation of powers.

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