Clinton Associate Attorney General: President Bush had Legal Authority to OK Taps

[igloo]

Clinton Associate Attorney General: President Bush had Legal Authority to OK Taps

John Schmidt, who served in the Clinton Justice Department from 1994 to 1997, wrote the following in today's Chicago Tribune:

President had legal authority to OK taps

Chicago Tribune

By John Schmidt

Published December 21, 2005

President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

FISA contains a provision making it illegal to "engage in electronic surveillance under color of law except as authorized by statute." The term "electronic surveillance" is defined to exclude interception outside the U.S., as done by the NSA, unless there is interception of a communication "sent by or intended to be received by a particular, known United States person" (a U.S. citizen or permanent resident) and the communication is intercepted by "intentionally targeting that United States person." The cryptic descriptions of the NSA program leave unclear whether it involves targeting of identified U.S. citizens. If the surveillance is based upon other kinds of evidence, it would fall outside what a FISA court could authorize and also outside the act's prohibition on electronic surveillance.

The administration has offered the further defense that FISA's reference to surveillance "authorized by statute" is satisfied by congressional passage of the post-Sept. 11 resolution giving the president authority to "use all necessary and appropriate force" to prevent those responsible for Sept. 11 from carrying out further attacks. The administration argues that obtaining intelligence is a necessary and expected component of any military or other use of force to prevent enemy action.

But even if the NSA activity is "electronic surveillance" and the Sept. 11 resolution is not "statutory authorization" within the meaning of FISA, the act still cannot, in the words of the 2002 Court of Review decision, "encroach upon the president's constitutional power."

FISA does not anticipate a post-Sept. 11 situation. What was needed after Sept. 11, according to the president, was surveillance beyond what could be authorized under that kind of individualized case-by-case judgment. It is hard to imagine the Supreme Court second-guessing that presidential judgment.

Should we be afraid of this inherent presidential power? Of course. If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense. The danger is that surveillance will not be used solely for that narrow and extraordinary purpose.

But we cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by Sept.11. I do not believe the Constitution allows Congress to take away from the president the inherent authority to act in response to a foreign attack. That inherent power is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history, could well need again.

[destruction]

Paid to lie. Government actor posing as someone who was Clinton's attorney general, spoonfed to anti american right wing media hack sources.

Nice job fool.

Look below, dickwad....

[destruction]

December 21st, 2005 1:53 am

Spying Program Snared U.S. Calls

By James Risen and Eric Lichtblau / New York Times

WASHINGTON, Dec. 20 - A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.

The officials say the National Security Agency's interception of a small number of communications between people within the United States was apparently accidental, and was caused by technical glitches at the National Security Agency in determining whether a communication was in fact "international."

Telecommunications experts say the issue points up troubling logistical questions about the program. At a time when communications networks are increasingly globalized, it is sometimes difficult even for the N.S.A. to determine whether someone is inside or outside the United States when making a cellphone call or sending an e-mail message. As a result, people that the security agency may think are outside the United States are actually on American soil.

Vice President Dick Cheney entered the debate over the legality of the program on Tuesday, casting the program as part of the administration's efforts to assert broader presidential powers.

Eavesdropping on communications between two people who are both inside the United States is prohibited under Mr. Bush's order allowing some domestic surveillance.

But in at least one instance, someone using an international cellphone was thought to be outside the United States when in fact both people in the conversation were in the country. Officials, who spoke on condition of anonymity because the program remains classified, would not discuss the number of accidental intercepts, but the total is thought to represent a very small fraction of the total number of wiretaps that Mr. Bush has authorized without getting warrants. In all, officials say the program has been used to eavesdrop on as many as 500 people at any one time, with the total number of people reaching perhaps into the thousands in the last three years.

Mr. Bush and his senior aides have emphasized since the disclosure of the program's existence last week that the president's executive order applied only to cases where one party on a call or e-mail message was outside the United States.

Gen. Michael V. Hayden, the former N.S.A. director who is now the second-ranking intelligence official in the country, was asked at a White House briefing this week whether there had been any "purely domestic" intercepts under the program.

"The authorization given to N.S.A. by the president requires that one end of these communications has to be outside the United States," General Hayden answered. "I can assure you, by the physics of the intercept, by how we actually conduct our activities, that one end of these communications are always outside the United States."

Attorney General Alberto R. Gonzales also emphasized that the order only applied to international communications. "People are running around saying that the United States is somehow spying on American citizens calling their neighbors," he said. "Very, very important to understand that one party to the communication has to be outside the United States."

A spokeswoman for the office of national intelligence declined comment on whether the N.S.A. had intercepted any purely domestic communications. "We'll stand by what General Hayden said in his statement," said the spokeswoman, Judy Emmel.

The Bush administration has not released the guidelines that the N.S.A. uses in determining who is suspected of having links to Al Qaeda and may be a target under the program. General Hayden said the determination was made by operational people at the agency and "must be signed off by a shift supervisor," with the process closely scrutinized by officials at the agency, the Justice Department and elsewhere.

But questions about the legal and operational oversight of the program last year prompted the administration to suspend aspects of it temporarily and put in place tighter restrictions on the procedures used to focus on suspects, said people with knowledge of the program. The judge who oversees the secret court that authorizes intelligence warrants - and which has been largely bypassed by the program - also raised concerns about aspects of the program.

The concerns led to a secret audit, which did not reveal any abuses in focusing on suspects or instances in which purely domestic communications were monitored, said officials familiar with the classified findings.

General Hayden, at this week's briefing, would not discuss many technical aspects of the program and did not answer directly when asked whether the program was used to eavesdrop on people who should not have been. But he indicated that N.S.A. operational personnel sometimes decide to stop surveillance of a suspect when the eavesdropping has not produced relevant leads on terror cases.

"We can't waste resources on targets that simply don't provide valuable information, and when we decide that is the case," the decision on whether a target is "worthwhile" is usually made in days or weeks, he said.

National security and telecommunications experts said that even if the N.S.A. seeks to adhere closely to the rules that Mr. Bush has set, the logistics of the program may make it difficult to ensure that the rules are being followed.

With roaming cellphones, internationally routed e-mail, and voice-over Internet technology, "it's often tough to find out where a call started and ended," said Robert Morris, a former senior scientist at the N.S.A. who is retired. "The N.S.A. is good at it, but it's difficult even for them. Where a call actually came from is often a mystery."

http://www.nytimes.com/2005/12/21/politics/21nsa.html