The Office of Legislative Affairs for the Justice Department wrote this letter (pdf) Thursday to leaders of the Senate Select Committee on Intelligence in an attempt to justify the President's orders directing the National Security Agency to conduct warrantless electronic surveillance in the wake of 9/11.

DOJ says the President's actions were justified and legal by virtue of:

• Article II of the Constitution
• The Authorization for the Use of Military Force ("AUMF") of September 18,
  2001, 115 Stat. 224 (2001)
• The 2002 FISA Review Court Ruling (background here.)
• Principles of statutory construction that apply when there's an ambiguity
• The Fourth Amendment's reasonableness requirement allowing for warrantless searches upon a showing of special need under the totality of the circumstances.

The letter acknowledges that FISA and Title III prohibit electronic surveillance unless authorized by statute. Here's the DOJ argument: The AUMF constitutes such a statute. And, if it doesn't, it should, because principles of statutory construction require that FISA and the AUMF be harmonized, and any ambiguities have to be resolved in favor of presidential authority.

In legalese, according to DOJ (note: this is cut and pasted from the pdf file which mistakes some symbols, so if you want to be completely accurate in citing, use the pdf link above):

Peter Daou of the Daou Report provides a scenario for how Bush's warrantless surveillance orders will play out. As Jane says in a post focusing on Obama, it's dire indeed. Daou says of the Constitution:

The cause of its demise is the corrosive interplay between the Bush administration, a bevy of blind apologists, a politically apathetic public, a well-oiled rightwing message machine, lapdog reporters, and a disorganized opposition. The domestic spying case perfectly illuminates the workings of that system. And the unfolding of this story augurs poorly for those who expect it to yield different results from other administration scandals.

He then recaps the familiar pattern all of Bush's abuses fall into: Talk radio attacks the critics as unpatriotic. The Republicans then defend Bush, resulting in blogswarms by left-leaning bloggers. MSM lends lip service and then drops it. The public gets scandal fatigue.

The president breaks the law. Life goes on....Rinse and repeat.

Did Rep. James Sensenbrenner miscalculate? Last night, the Senate had agreed to extend the Patriot Act for six months so a compromise bill could be worked out that better protected civil liberties than the dismal conference bill.

But, Rep. Sensenbrenner thought that was too long. He wanted a Patriot Act renewal bill in place sooner. So with an almost empty Senate chamber today, he moved for a one month extension and got it.

Will the Democrats fold in January? Sen. Russ Feingold says they won't.

"No one should make the mistake of thinking that a shorter extension will make it possible to jam the unacceptable conference report through the Congress," said Sen. Russell Feingold, D-Wis., who led the Senate filibuster. "That bill is dead and cannot be revived.""

How does a one month extension help the Republicans?

Washington Monthly has a long profile of Markos of Daily Kos in its upcoming issue. Writer Benjamin Wallace-Wells traveled to Berkely to do an in-depth article. Is it favorable? Yes and no, but mostly yes. It's more like Wells is still scratching his head, trying to figure out both Markos and bloggers. It's not a puff piece, but it does give Markos his due for being the world's largest political blogger, for being committed and smart and for remaining down to earth. And it does capture that left-right ideology is not his focus. His goal is for the Democrats to win.

There are a few laudable quotes:

The DCCC's executive director, John Lapp, says that Moulitsas's model is “a signal event in political history, like the Kennedy-Nixon debates, in how it gets people involved.” And Simon Rosenberg, the president of the centrist New Democratic Network (NDN), says that “frankly I don't think there's anyone who's had the potential to revolutionize the Democratic Party that Markos does.”

Experts say Bush's warrantless electronic surveillance could jeopardize current terror cases if the evidence against them is derived from illegal interceptions.

How would a defendant know? How about a request under 18 USC Sec. 3504?

(a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States—

(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act;

(b) As used in this section “unlawful act” means any act the use of any electronic, mechanical, or other device (as defined in section 2510 (5) of this title) in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto.

I suspect there will be a lot of motions filed under this section, not just in terror cases, but in other cases in which the defendants are foreign-born. They will seek to have the Government affirm or deny that they were subjects of Bush's warrantless surveillance. I'm not encouraging the filing of the motions, TalkLeft does not give legal advice, it's just an interesting thought.

Lots of off-line activity for me today means an open thread for you. In the news today.

• The New York Police Department planted spies at protests and videotaped protesters.

• FISA Court judges will get a briefing on what the Administration has been doing.

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. Some of the judges said they are particularly concerned that information gleaned from the president's eavesdropping program may have been improperly used to gain authorized wiretaps from their court.

Check out the Martini Republic's Christmas Time Magazine cover, particularly the top right.

In the "your papers please" category this week, we have the Ohio Patriot Act that is sitting on Gov. Taft's desk waiting for his approval.

The lengthy piece of legislation would let police arrest people in public places who will not give their names, address and birth dates, even if they are not doing anything wrong.

[Via Altercation.]

The Death Penalty Information Center reports that death sentences have hit their lowest level since 1976.

In 1999, 276 death sentences were imposed. The figure has dropped every year since, falling to 125 last year. With 10 days to go in 2005, 96 death sentences are projected to be handed down this year, the lowest total since 1976.

The reasons are varied:

Richard C. Dieter, executive director of the center, based in Washington, D.C., said several factors had contributed to the decrease in death sentences — prime among them the fact that jurors in all but one of the 38 states that had capital punishment laws were able to render sentences of life without parole. Jurors, he said, are becoming increasingly comfortable with voting for such sentences rather than death.

Here are the latest death penalty statistics by state.

I know I've already written about how Dick Cheney knocked the crutches out from under Tiny Tim with his tie-breaking vote on the budget bill, but I've only just begun to fight. The bill now goes to the Senate House. That means there's time for you to contact your Representatives and urge them to vote against it. The New York Times has this summary of what's in it.

• States would have sweeping new authority to impose premiums and co-payments on millions of low-income people covered by Medicaid. States can also scale back benefits for many recipients.

• For the elderly, it would be more difficult to qualify for Medicaid coverage for nursing home care if they transfer assets to their children or other relatives for less than fair market value.

• Medicare would freeze payments for home health services and reduce payments for medical imaging.

There are honors, and then there are honors. Lawyers' Weekly has released its list of the year's 11 top lawyers.

It includes Special Counsel Patrick Fitzgerald, Chief Justice John Roberts.... and TChris, who blogs here on TalkLeft.

TChris argued the Booker case in the U.S. Supreme Court, which along with the Fan Fan case argued at the same time by Rosemary Scapicchio of Boston, resulted in the Court's decision that the federal sentencing guidelines are advisory only. The decision is widely referred to as one which revolutionized federal sentencing and turned the existing system on its head.

For newer TalkLeft readers, TChris has been blogging on TalkLeft since December, 2003.

Congratulations, TChris. This really rocks.

After a day of haggling, filibustering Senators have agreed to extend the Patriot Act for six months while they continue to press for more protection of civil liberties. The bill has to be approved by the full Senate, the full House and then Bush. [Update: The Associated Press reports the full Senate has passed the extension bill.]

Sen. Russ Feingold says in a statement tonight (received by e-mail)

One thing is clear - what happened in the Senate over the past few weeks shows that this conference report is dead."

At least it also puts Souder's Sensenbrenner's meth bill restricting the sale of cold pills on hold. We can sneeze without fear.

Same-sex unions are now legal in Great Britain. Among those taking advantage of the new law was Elton John.

Sir Elton, 58, and the Canadian film-maker, 43, were among 700 gay couples to join in civil partnerships yesterday, the first day that same-sex unions became legal in England and Wales. The partnerships allow same-sex couples new rights in areas such as employment, pension and inheritance, although the ceremonies are still not officially classed as "marriages".