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.