John Schmidt, associate attorney general of the United States in the Clinton administration, has a piece in the Chicago Tribune yesterday explaining the legality of the NSA wiretaps.
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.
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.
John Hinderaker has sent the following letter to the NYT.
In your reporting in the Times you appear to have tried to create the impression that the NSA’s overseas intercept program is, or may be, illegal. I believe that position is foreclosed by all applicable federal court precedents. I assume, for example, that you are aware of the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001, where the court said:
“The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. *** We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”
In view of the controlling federal court precedents, I do not see how an argument can be made in good faith that there is any doubt about the NSA program’s legality. Therefore, I wonder whether you are somehow unaware of the relevant case law. If you know of some authority to support your implication that the intercepts are or may be illegal, I would be interested to know what that authority is. If you are aware of no such authority, I think that a correction is in order.
Thank you.
John Hinderaker
Gerbara Tetra, in reference to Schmidt’s article, says “it’s a good outlining of why this whole survelence thing is being wrongly focused on the little issue of legality and not the big issue of treason.”
From ChristspeakRX: “Just like they did with NOLA and Katrina, Bush haters are praying for the President’s demise. But this time there are no innocent victims - only dead terrorists and their thwarted plans to destroy Americans. This time Bush haters are really stuck on stupid.”
Ann Coulter rants about the Times invading the privacy rights of child molesters.
Alex at Political Aurora thinks Treason is not an outdated term: “While the leaker’s main objective may not have been to “aid America’s enemies,” it is also certain that the leaker knew that as a result of his/her actions, America’s capability to defend itself would be severely damaged, and al-Qaeda alerted to a possible weakness in their network. Yet this person still made the conscious decision to leak the information to the New York Times. That, in my book at least, is enough to constitute treason.”
Rocco DiPippo: “Being the slightly unhinged, close-minded myopic snobs that they are, the Times’ elite management and its back-pedaling reporters are no doubt scratching their heads wondering why their latest effort to derail Bush is failing–understandable behavior for people who think they’re slicker and smarter than everyone else when, in fact, they’re not.”
Think Progress takes issue with Schmidt’s article by asserting that he really missed the point of the FISA Appeals Court decision.
Bill Karl: “Please, God, send us a Democrat like FDR again. A Democrat who knows how high the stakes are. Because if we had entered World War II with the likes of the Democrats in Congress today, we’d still be fighting it. And losing.”