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.
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