This is an exceedingly complex issue, but nevertheless a vitally important one. I am not a legal scholar so I will resist the temptation to get into the weeds on the legal issues, but I have received 90+ hours of instruction on Constitutional Law while at FLETC
which is about 90 more hours than 95% of the American people so I am not completely clueless. Nearly all of those 90+ hours were on the 4th Amendment (Search and Seizure) which is the most important Amendment to the Bill of Rights that pertains to the duties of a law enforcement officer. There are very detailed legal authorities
inherent to the Presidency that have been argued by many
, I will simply add another.
In my experience as a former Customs officer, we are granted broad border search authority that allows us to conduct searches of all persons, vehicles, conveyances, letters, and even electronic communications originating from outside the US and crossing into the US. These searches require no warrants, and Customs officers do not even need to substantiate these searches with any level of suspicion (i.e. probable cause, reasonable cause, and reasonable suspicion). The only thing that triggers this authority is that the Customs officer is searching something coming from outside the US and looking for merchandise or contraband. Merchandise is anything of value, and contraband is anything that cannot be legally present in the US. The Courts have very broadly defined these terms. Customs and now ICE is the lead agency for investigating child pornography in the US because nearly all images of child pornography at some point cross from foreign locations into the US and those images are considered contraband. I would argue that those images are just like terrorist communications in that they cross the border and are contraband.
Additionally, the President stated as his press conference
“First, I want to make clear to the people listening that this program is limited in nature to those that are known al Qaeda ties and/or affiliates. That's important. So it's a program that's limited, and you brought up something that I want to stress, and that is, is that these calls are not intercepted within the country. They are from outside the country to in the country, or vice versa.”
Meaning that the communications themselves are captured by means located outside the territory of the US. Yes, those means are under the control of the US to be sure, but just as terrorists seized outside the US do not have US Constitutional rights, neither should communications seized outside of the US. If I arrest someone for smuggling dope into the US, I have to deliver that person to a federal magistrate for an initial appearance within 48 hours. My SEAL buddies in Afghanistan or Iraq have no such requirement because a) they are not operating in a law enforcement capacity, and b) the people they are seizing are not entitled to the protections of the US Constitution. The NSA seizes communications for an intelligence purpose (not law enforcement), and those intercepts occur in a place where the US Constitution does not apply.
The NSA collects gargantuan amounts of data from all over the world every day in its mission to protect the US. Let’s assume that the NSA intercepts EVERY communication originating in Peshawar, Pakistan (which it probably does). I don’t know how much that might be, but it would probably fill up my hard drive before lunch every day. Let’s say on Monday the NSA obtains a phone call from an AQ guy to somebody in the US from a known “dirty” number (like from the phone book in the previous post) originating in Peshawar. Let’s also assume that the NSA has identified hundreds of thousands of “dirty” numbers around the world, and that these numbers change constantly, but the old numbers cannot be discarded just in case. The NSA might not even KNOW that dirty number X called someone in the US for more than the 72 hours that the FISA Act requires to submit warrant applications after the fact. Not only that, but at times the sheer volume of the warrant applications (due to the massive number of intercepts) would likely overwhelm federal officers from writing them all, and FISA Judges from reading them all in time. So, what is to be done?
Either the President by consulting the AG, Congressional leadership, and the FISA Court comes up with a way to use these critically important intercepts outside of FISA, but with legal authorities available in the Constitution, or he just blows them off. What about having the FISA Act amended you might ask? First of all, take a look at the PATRIOT Act, and tell me with a straight face that the request would not be used by the Dems as an opportunity to further the Chimpy Bushitler McHalliburton meme. And second, this wailing and gnashing of teeth would put the terrorists on notice that we are listening to their conversations (thank you NYT).
This issue is a political nightmare in the making for the Democrats, and for once the President senses that and is acting accordingly. Hotline
) is postulating a ’02 redux in the off year elections in ’06. That was when a triple amputee Vietnam Vet got bounced out of the Senate by Saxby Chambliss for opposing the Department of Homeland Security. It is not a far fetched proposition actually, and this issue lends itself quite nicely to the Democrats already bulging resume of weakness on national security. I have noticed that red state Democrat Senators have been keeping their pieholes shut so far on this, and there is every reason to think that they will continue to do so. The RNC will be able to plausibly tie their more radical colleague’s outlandish statements around their necks and toss them into the Potomac anyway. Keep up the good work Howie, Nancy, and Harry!
UPDATE: This article
in the Chicago Tribune by John Schmidt is about as comprehensive an examination of the President's inherent authority to conduct warrantless wiretaps that I have seen and it is a must read. Via Jeff Goldstein