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Justice Dept. to Declare Warrantless NSA Surveillance was Legal

By Jeralyn, Section War on Terror
Posted on Thu Jan 19, 2006 at 01:02:55 PM EST
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Raw Story has obtained a copy of the Justice Department memo about to be released vouching for the legality of Bush's warrantless NSA electronic surviellance program.

"The NSA activities are supported by the President’s well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States," Justice Department lawyers write, referring to the President's order to wiretap Americans' calls overseas.

It adds, "The President has the chief responsibility under the Constitution to protect America from attack, and the Constitution gives the President the authority necessary to fulfill that solemn responsibility."

The full DOJ memo is available here (pdf). The New York Times article is here.

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    Justice Dept. to Declare Warrantless NSA Surveillance was Legal | 15 comments (15 topical)
    Re: Justice Dept. to Declare Warrantless NSA Surve (none / 0) (#1)
    by Punchy on Thu Jan 19, 2006 at 01:31:32 PM EST
    How does this jive with the Congressional Research Service's finding of just the complete opposite? Isn't the CRS non-partisan? Isn't the Justice Dept. full of whomever Bush put in there and thus fully partisan? Can anyone take anything this Admin does seriously, knowing they're all just covering each other on every scandal?

    Re: Justice Dept. to Declare Warrantless NSA Surve (none / 0) (#2)
    by Dadler on Thu Jan 19, 2006 at 01:32:55 PM EST
    I'm shocked, I tell ya. Mr. Tattered Covering, I'd like to introduce you to their asses.

    Re: Justice Dept. to Declare Warrantless NSA Surve (none / 0) (#3)
    by Pete Guither on Thu Jan 19, 2006 at 02:26:52 PM EST
    Of course, the one thing I was looking for in this document is: What does the administration need to do that can't be done under the high-speed rubber-stamping of the FISA courts? Finally, on Page 34...
    The President has determined that the speed and agility required to carry out the NSA activities successfully could not have been achieved under FISA. [18]

    [18]: In order to avoid further compromising vital national security activities, a full explanation of the basis for the President’s determination cannot be given in an unclassified document.
    Ah, well that explains it then. There was another passage I found odd:
    Reading FISA to prohibit the NSA activities would raise two serious constitutional questions, both of which must be avoided if possible: (1) whether the signals intelligence collection the President determined was necessary to undertake is such a core exercise of Commander in Chief control over the Armed Forces during armed conflict that Congress cannot interfere with it at all and (2) whether the particular restrictions imposed by FISA are such that their application would impermissibly impede the President's exercise of his constitutionally assigned duties as Commander in Chief. Constitutional avoidance principles require interpreting FISA, at least in the context of the military conflict authorized by the AUMF, to avoid these questions, if "fairly possible."
    In other words, "Don't ask."

    Re: Justice Dept. to Declare Warrantless NSA Surve (none / 0) (#4)
    by mjvpi on Thu Jan 19, 2006 at 03:07:42 PM EST
    Does anyone on this site know if the Bush admin. made requests of the FISA court that were turnrd down? The memo seems to paint the DOJ as a partisan player.

    Re: Justice Dept. to Declare Warrantless NSA Surve (none / 0) (#5)
    by Talkleft Visitor on Thu Jan 19, 2006 at 03:39:27 PM EST
    The President has only the authority conferred by statute or Article II of the Constitution. Whatever power he claims under Article II is nonetheless subject to the Bill of rights. The 4th Amendment specifically requires that the President obtain judicial approval to wiretap U.S. citizens who are inside the United States. Had the 4th Amendment and the other 9 Amendments which constitute the Bill of Rights not been adopted, the Constitution might well have failed ratification, in which case the President would have had only the authority that the Continental Congress had chosen to give him. In sum, all of the President's powers, including his power to command the armed forces, are subject to the limitations contained in the Bill of Rights.

    Re: Justice Dept. to Declare Warrantless NSA Surve (none / 0) (#6)
    by Talkleft Visitor on Thu Jan 19, 2006 at 04:14:18 PM EST
    Well you didn't really expect them to declare it illegal, did you?

    Re: Justice Dept. to Declare Warrantless NSA Surve (none / 0) (#7)
    by TChris on Thu Jan 19, 2006 at 04:37:47 PM EST
    I guess I'm not surprised that the DOJ lawyers who authored this embarrassing piece of drek didn't sign their names to it.

    Re: Justice Dept. to Declare Warrantless NSA Surve (none / 0) (#8)
    by Edger on Thu Jan 19, 2006 at 04:42:24 PM EST
    [18]: In order to avoid further compromising vital national security activities, a full explanation of the basis for the President’s determination cannot be given in an unclassified document. Pete Guither, the paragraph you quoted from page 34 has the president using as a defense pretty much exactly what the Congressional Research Service report concluded was their barrier to determining the legality or illegality of the NSA surveillance.

    Re: Justice Dept. to Declare Warrantless NSA Surve (none / 0) (#9)
    by scarshapedstar on Thu Jan 19, 2006 at 04:58:18 PM EST
    Breaking news: right hand defends left hand.

    Re: Justice Dept. to Declare Warrantless NSA Surve (none / 0) (#10)
    by Edger on Thu Jan 19, 2006 at 05:05:06 PM EST
    Not quite, scar. The writers of the CRS report in their conclusion said that they were unable to make a determination without further information, and that they were barred from the information they needed by the presidents classification of it and/or his refusal to declassify it.

    Re: Justice Dept. to Declare Warrantless NSA Surve (none / 0) (#12)
    by squeaky on Thu Jan 19, 2006 at 07:19:47 PM EST
    Checks and Balances are relegated to bookkeeping only, as we have seen with the Republican party $$ scandals. Quite the creative reinterpretation of how the founding fathers saw things.... very, very, creative. Soon we will have only one branch of gov (streamlining) so Americans can be safe and avoid complicated distractions. We are at war and sacrifices have to be made.

    Re: Justice Dept. to Declare Warrantless NSA Surve (none / 0) (#13)
    by Talkleft Visitor on Fri Jan 20, 2006 at 11:16:36 AM EST
    Well now that we are all positive that it's legal, what do you say we all go about the business of shooting the seditious bastards who publically gave away national security secrets to AQ?

    Re: Justice Dept. to Declare Warrantless NSA Surve (none / 0) (#14)
    by Edger on Fri Jan 20, 2006 at 11:25:13 AM EST
    Variable:
    Well now that we are all positive that it's legal
    If I was accused of a crime, and my lawyers assured you that I was innocent or that what I was accused of was not illegal, would you automatically believe them, throw up your hands and say "Oh, well... of course! That settles it then!"? That's what you've just done, above...

    Re: Justice Dept. to Declare Warrantless NSA Surve (none / 0) (#16)
    by Johnny on Sat Jan 21, 2006 at 06:46:35 AM EST
    sole organ
    Isn't anyone else bothered by this phrase? Variable, is it only those who "gave away" info to AQ that deserve to be shot? Presumably by such outstanding citizens such as yourself?

    Re: Justice Dept. to Declare Warrantless NSA Surve (none / 0) (#17)
    by kdog on Sat Jan 21, 2006 at 10:20:44 AM EST
    outstanding citizen? Good one Johnny. An outstanding citizen questions and watchdogs their govt., they don't just wait in line for kool-aid.

    Justice Dept. to Declare Warrantless NSA Surveillance was Legal | 15 comments (15 topical)