The NSA Program: A Must-Read
posted by Jason
Generation Why?
Professor Joseph Knippenberg has a good analysis of the Senatorial silliness during Attorney General Gonzales' interrogation and why the NSA program is not only legal, but why not having it might be a dereliction of duty. Here's a portion:
<<< You may be familiar with the Administration’s legal and Constitutional defense of its limited—I repeat, limited—warrantless surveillance program, but in case you’re not, let me summarize it briefly. In undertaking the surveillance of communications between suspected al-Qaeda operatives outside the U.S. and persons within our borders, the President relies upon the following authorities: his inherent executive power, which is extensive, albeit not unlimited, when it comes to protecting national security from credible threats; and the “Authorization to Use Military Force,” passed by Congress in the wake of the 9/11 attacks. If the President is authorized to shoot at the bad guys, he’s also authorized, by reasonable implication, to discover who and where they are.
Properly understood, the two purported restrictions on his authority—the 1978 Foreign Intelligence Surveillance Act and the Fourth Amendment prohibition against unreasonable searches and seizures—do not actually do so. As the Attorney General contends in his opening statement, FISA “prohibits persons from intentionally ‘engag[ing]…in electronic surveillance under color of law except as authorized by statute.’” The AUMF is such a statute, permitting, if need be, warrantless surveillance. Furthermore, a limited program of warrantless surveillance may be an effective—indeed, the only effective—means of identifying those properly called evildoers (or perhaps potential evildoers, if they belong to a sleeper cell). As such, the program amounts to a reasonable, as opposed to unreasonable, method of search and seizure; it passes the Fourth Amendment test. >>>
Read the whole thing.
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