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Thursday, December 22, 2005

Here is THE FINAL WORD on Legality of Bush NSA Surveillance; Powerline's John Hinderaker Examines the Constitution, Court Decisions, Laws

It's possibly the longest post in Powerline history but it is well-worth reading. I'm referring to John Hinderaker's "On the Legality of the NSA Electronic Intercept Program" post. That this post is published on a blog instead of in The New York Times or The Washington Post is indicative of how far from reality the mainstream media has strayed.

Hinderacker first examines the Constitution and what it means in Article II when it designates the President as the Commander-in-Chief and how that fact comports with the Fourth Amendment's guarantees against unreasonable search and seizure.

He reminds us that "the President has certain powers under the Constitution, and they cannot be taken away or limited by Congressional legislation any more than the President can limit the powers of Congress by executive order."

This fact underlies the U.S. Supreme Court's ruling in Fleming v Page that the President can employ the nation's military forces, including the intelligence agencies, "in the manner he may deem most effectual to harass and conquer and subdue the enemy."

He then looks at the three major decisions of the U.S. Supreme Court that bear directly on the constitionality of the Bush surveillance order: Katz v United States; United States v United States District Court, and Hamdi v Rumsfeld.

After noting the specifics of each decision that speak to the current controversy, Hinderaker summarizes his analysis by noting that "neither the language of the Constitution nor the Supreme Court’s jurisprudence can justify a claim that the NSA program is illegal. While the Court has never specifically ruled on the issue, its decisions are entirely consistent with the administration's view that the President has the inherent constitutional authority to obtain foreign intelligence information through warrantless searches."

Hinderaker next turns to the relevant decisions of the U.S. Courts of Appeal, including: United States v [Cassius] Clay; United States v Butenko; United States v Buck, United States v Truong; United States v Duggan and Sealed Case No 02-001 (from FISA).

Again, according to Hinderaker, these decisions make crystal clear that the President "has the inherent constitutional authority to order warrantless searches for purposes of gathering foreign intelligence information, which includes information about terrorist threats. Furthermore, since this power is derived from Article II of the Constitution, the FISA Review Court has specifically recognized that it cannot be taken away or limited by Congressional action."

Next up for Hinderaker are the several laws passed in recent years, including the congressional authorization of military action following 9/11, the Foreign Intelligence Surveillance Act and the Electronic Communications Privacy Act.

In essence, Hinderaker's conclusion is that the statutes make clear Congress has never intended to limit intelligence surveillance outside the U.S. Thus, on the assumption that the surveillance authorized by Bush is conducted outside the country and is interception of known or suspected terrorists threats, there is no question about the legality of the President's post 9/11 "spying" order.

Hinderaker concludes with this question:

"Is it reasonable for the administration to do all it can to identify the people who are communicating with known terrorists overseas, via the terrorists’ cell phones and computers, and to learn what terrorist plots are being hatched by those persons?
"Is it reasonable to do so even when - rather, especially when - some portion of those communications come from people inside the United States? I don’t find it difficult to answer those questions; nor, if called upon to do so, would the Supreme Court."

Case closed.


Excellent roundup over at MSNBC's blog site by Clint Van Zant of common sense analysis, useful history and informed speculation about what the FBI and NSA seek to accomplish via the post 9/11 surveillance authorized by Bush.

HT: Hugh Hewitt