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Justice Dept. Lays Out New Defense of Warrantless NSA Program

The Justice Department today issued this long press release in an attempt to debunk what it calls "myths" about Bush's warrantless NSA surveillance program.

Shorter version: We're at war and the President is King. The legal arguments are still based on the questionable assumption that the President's Article II constitutional power and the Iraq war authorization gave Bush the power to engage in the program.

FISA expressly envisions a need for the President to conduct electronic surveillance outside of its provisions when a later statute authorizes that surveillance. The AUMF is such a statute.

The NSA activities come from the very center of the Commander-in-Chief power, and it would raise serious constitutional issues if FISA were read to allow Congress to interfere with the President's well-recognized, inherent constitutional authority. FISA can and should be read to avoid this.

DOJ also argues that the 72 hour emergency window isn't enough time for it to prepare a FISA application, but does not address why it didn't ask Congress to amend the law to give them more time.

The Justice Department does not approve emergency authorizations without knowing it will receive court approval within 72 hours. To initiate surveillance under a FISA emergency authorization, it is not enough to rely on the best judgment of our intelligence officers alone. Those intelligence officers would have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied, then lawyers in the Department of Justice would have to be similarly satisfied, and finally, the Attorney General would have to be satisfied that the search meets the requirements of FISA. The government would have to be prepared to follow up with a full FISA application within 72 hours.

Most of the supporting arguments ring hollow to me because they assume facts not in evidence so to speak.....they require us to take the President at his word when it comes to surveillance of Americans under the program. Examples:

The program only applies to communications where one party is located outside of the United States.

The NSA terrorist surveillance program described by the President is only focused on members of Al Qaeda and affiliated groups. Communications are only intercepted if there is a reasonable basis to believe that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda.

...The NSA activities described by the President are narrow in scope and aim.

...The NSA program is an "early warning system" with only one purpose: to detect and prevent the next attack on the United States from foreign agents hiding in our midst. It is a program with a military nature that requires speed and agility.

Let the hearings begin.

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  • Re: Justice Dept. Lays Out New Defense of Warrantl (none / 0) (#2)
    by Edger on Fri Jan 27, 2006 at 03:39:28 PM EST
    That was me above asking for the fries.

    it would raise serious constitutional issues if FISA were read to allow Congress to interfere with the President's well-recognized, inherent constitutional authority
    Uhhh, IT DOES RAISE 'serious constitutional issues'. It's a f@#$%^! dictatorship to say the exec triumphs the other 2 branches. And ONLY congress can declare war, and bush has stated that this war will never end. No matter what your political bent, this has got to be seen as the most dangerous threat to our democracy ever!

    Re: Justice Dept. Lays Out New Defense of Warrantl (none / 0) (#4)
    by roy on Fri Jan 27, 2006 at 03:57:18 PM EST
    I have a fun idea. Bush & Friends are originalists, they read legal text by discerning the intent of the writers. If that's legit for the Constitution, it should be even better for FISA and the AUMF, with some of the bills' writers still alive. So let's ask the bills' writers what they meant. I'm guessing they didn't intend to authorize the behavior described by Gonzales. As for whether congress can restrict this kind of behavior... Bush's war powers derive from his position as Commander in Chief, right? So it stands to amateur reason that his war powers can be regulated by the legistlature as strictly as those of rest of the military. Since the UMCJ is congress's baby, apparently congress has quite a lot of authority over the military. More closely related, congress obviously has the authority to restrict the military's actions within the US -- see posse comitatus. (I'm not claiming that the wiretaps violate posse comitatus)

    off topic rambling deleted

    Re: Justice Dept. Lays Out New Defense of Warrantl (none / 0) (#7)
    by roy on Fri Jan 27, 2006 at 04:51:28 PM EST
    Sailor, Are you so conditioned by our frequent spats that you can't see that my post is anti-Bush and anti-President-as-King? "UMCJ" in that post should be "UCMJ", btw. (done for the day)

    Re: Justice Dept. Lays Out New Defense of Warrantl (none / 0) (#5)
    by Sailor on Fri Jan 27, 2006 at 04:54:27 PM EST
    Sorry all, the January 27, 2006 04:46 PM was posted by me. - Sailor Roy, please provide links to why you think the 'Commander In Chief' is king. Once again, posted by Sailor.

    Re: Justice Dept. Lays Out New Defense of Warrantl (none / 0) (#8)
    by Punchy on Fri Jan 27, 2006 at 04:57:10 PM EST
    The NSA activities come from the very center of the Commander-in-Chief power Say what? The very center, eh? So...directing the military, having a war plan, practicing diplomacy....they're just fringe responsibilities? The "very center" of CinC power is NSA eavesdropping? WTF? God help us.

    Is this the new and improved defense? Funny isn't it, how it looks just like the old defense? Comes in how many sizes and flavors now did they say? Can I get fried... ooops, I mean fries, with that?

    Since when, did the DOJ become the personal legal team for the POTUS? To give the president legal opinion and advice, OK. But to be his defense team. and personal PR firm? That seems criminal. The A.G. seems to be writing law here, not enforcing it. Why have a Congress or Judicial branch? The Bush team writes, interprets, and enforces its own laws autonomously. And with no Congressional oversight, and law enforcement, the Justice Department for God's sake, pleading his case, he truly can rule like the Demigod he obviously believes he is. I wonder if there is some foreign democratic leader out there in the world considering gathering a coalition to invade the U.S, to bring democracy to Americans? Freeing them from the brutality of a dictator who tortures, uses chemical weapons, imprisons citizens without cause, and spies on his own people? And clearly has WMD. It is so incredible... the similarities between the America of today, and the Iraq of yesterday!

    Re: Justice Dept. Lays Out New Defense of Warrantl (none / 0) (#10)
    by Edger on Sat Jan 28, 2006 at 01:18:32 AM EST
    It is so incredible... the similarities between the America of today, and the Iraq of yesterday!
    Yes, well. Bush did promise to spread to Iraq the same "freedom" and "democracy" that America enjoys. The whole plan was to make Iraq's political and social landscape indistiguishable from America's. It worked... I guess we missed the part where he redefined those words too, along with other words like "torture", "truth", "compassion", and so on. I'm sure I'll think of others any moment now. Please feel free to add any I've missed, and thanks for listening.

    Re: Justice Dept. Lays Out New Defense of Warrantl (none / 0) (#11)
    by Sailor on Sat Jan 28, 2006 at 08:23:30 AM EST
    Roy, apologies for not reading close enough.

    Re: Justice Dept. Lays Out New Defense of Warrantl (none / 0) (#12)
    by squeaky on Sat Jan 28, 2006 at 04:36:21 PM EST
    Larry Johnston takes on Bush's oft repeated statement "but we are at war" and shows what a load of fearmongering horsepucky it is. Worth a read.
    If we were serious about this war there would be a supreme commander in charge of tracking down Bin Laden and the remnants of the Al Qaeda network. Instead, the NSC job for coordinating the war on terror has been held by seven different people since the President assumed office.


    Re: Justice Dept. Lays Out New Defense of Warrantl (none / 0) (#13)
    by squeaky on Sat Jan 28, 2006 at 09:33:03 PM EST
    NYT editorial gives "imperial" Bush quite the smackdown. Almost sounds like Frank Rich but more laser sharp in its focus.
    He has consistently shown a lack of regard for privacy, civil liberties and judicial due process in claiming his sweeping powers. The founders of our country created the system of checks and balances to avert just this sort of imperial arrogance.
    NYT