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Politics : Just the Facts, Ma'am: A Compendium of Liberal Fiction
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To: Lazarus_Long who wrote (43453)12/21/2005 10:22:48 PM
From: Oeconomicus  Read Replies (2) of 90947
 
Yeah, I've read the Kerr blog post. Note that he concludes Bush's NSA authorization does not violate the 4th amendment.

As for his FISA analysis, I find it dependent entirely on finding Al Qaeda to NOT be a "faction of a nation or nations" under the act. If they are, that would make them a foreign power subject to the section 1802 exception under FISA (i.e. no court order needed for surveillance). He says they are not because there is a separate category of foreign power for terrorist organizations that is not covered by the 1802 exception, but terrorist organizations of the global reach, organization and resources of Al Qaeda did not exist when that law was written and those that did exist were generally not targeting the US. I see no reason to consider Al Qaeda anything other than a faction of most or all Muslim nations, which means Bush's order to monitor it's communications is perfectly legal even if the communications involve a US person or take place IN the US. Effectively, all the NSA need do is not intentionally target a US person (citizen or resident alien) or purely domestic communications in its (non-court sanctioned) surveillance and comply with the information handling requirements of the act regarding information they do obtain about any US person.

Finally, he dismisses unjustifiably the Article II arguments, after acknowledging the precedents cited by the administration, purely on the basis of those precedents not addressing the specific issue of whether congress can limit by statute the constitutional powers of the president. Maybe those cases don't get you all the way there, but it seems to this layman that that leaves the question open, not settled.

But an interesting read, anyway.

The act itself is worth reading, too.
law.cornell.edu
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