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.
[Graphic created exclusively for TalkLeft by CL.]
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