Saturday, December 31, 2005

The Legality of the NSA Surveillance


Power Line has a round up; please read the entire Power Line post and all the other blogs it links to. The post's analysis appears balanced to me, and concedes that the question is eminently debatable. Meanwhile, as noted below, the polls show that President Bush's approval ratings have actually gone up after this controversy erupted.

These have been my points all along: (1) Politically, the surveillance is wise and well-supported by the American people; (2) legally, the president has an excellent case to make for the propriety of his actions. In any case, this was not a Watergate-style rogue operation; the surveillance was reviewed and lawyered on multiple levels before it was undertaken.

Below, commenter Chris (a friend) complains that Bush did not "bother" to get a warrant or court order. Assuming that to be true, I am not upset. Legally, the question is whether the Federal Intelligence Surveillance Act (FISA) obligated the president to seek a warrant, in spite of the authority granted to him by Article II, Section 1 of the Constitution. In other words, does Article II trump FISA?

That is not an easy call. Robert F. Turner, co-founder of the Center for National Security Law at the University of Virginia School of Law, served as counsel to the President's Intelligence Oversight Board from 1982 to 1984. He notes in Opinion Journal:

For nearly 200 years it was understood by all three branches that intelligence collection--especially in wartime--was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of "executive power" to the president included control over intelligence gathering.

Even if FISA does require a warrant (and it's not clear that it does), arguably Bush's Article II powers entitled him to go ahead. In any case, balancing FISA and Article II, it is simply not clear that Bush needed a warrant in these circumstances. In light of the few facts we know about the surveillance that went on, if the President had a close call to make over whether or not to monitor the conversations with terrorist groups that are apparently involved here, I feel just fine about the president making that call in favor of going ahead.

That's my story and I'm sticking to it. If you think Bush has truly jeopardized civil liberties in this country, tell me why and how.

4 Comments:

Anonymous Anonymous said...

It is no surprise that you feel fine resolving "that call in the president's favor." Your treat politics like it is some kind of sport. If the ideals Bush professed in 2000 were yours as well you would be disgusted by his administration. Apparently, you have no firm political beliefs other than to root for the home team. It is ironic given the name of your blog. 

Posted by Anonymous

Saturday, December 31, 2005 2:51:00 PM  
Blogger The Hedgehog said...

Anonymous, you'll have to do better than that. Tell me what about the administration's actions in this case that disgusts you. The NSA issue is legally complex, and reasonable people disagree about how it should be resolved. How do you think it should be resolved, and why? 

Posted by The Hedgehog

Saturday, December 31, 2005 3:34:00 PM  
Anonymous Anonymous said...

qhI'm not limiting this to the NSA issue. Think back to the campaign in 2000 (balanced budgets, no nation building, humility on the world stage, etc.) and tell me why you or I should be happy with this administration. You have consistently defended Bush despite the fact that he has changed or not even tried to do anything he promised. I suppose this all has to do with 9-11. Blah. 

Posted by Anonymous

Saturday, December 31, 2005 11:15:00 PM  
Blogger woof111 said...

If only the Media hadn't put an embargo on showing pictures of our fellow citizens jumping out of the burning world trade center buildings. In our past, we would have had a collective outrage at the pain of this attack. Now its just an abstraction, equated with the president's lack of humility. Pretty pathetic. 

Posted by gm

Sunday, January 01, 2006 8:18:00 PM  

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