Global War on TerrorPolitics

NSA Surveillance Watch: President Had Legal Authority to OK Taps

John Schmidt who served under President Clinton from 1994 to 1997 as the Associate Attorney General of the United States writes President had legal authority to OK taps.

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.

The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.

Read it all.

John Hinderaker over at Powerline Blog has It’s Legal

And asks the New York Times reporters, Eric Lichtblau and Adam Liptak…..

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

I will post any response I receive.

Flap bets he never receives a response.

This whole episode is an invention of the Left and the MSM to despotize President George Bush.

Now let the Congressional Hearings commence…….if the Democrats have the intestinal fortitude.

Flap continues to handicap NO public congressional hearings.


NSA Surveillance Watch: Carter and Clinton Executive Orders Authorizing Secret Searches Without a Warrant

NSA Surveillance Watch: Calls for Congressional Hearings

NSA Surveillance Watch: President Bush defends Spying as “A Necessary Part of My Job to Protect” Americans from Attack

17 thoughts on “NSA Surveillance Watch: President Had Legal Authority to OK Taps

  1. Hi Flap – it looks like our conversation should continue on this thread.

    I’m not going to try and argue the legality of this case, because the questions of legality of the administration’s actions are not going to be solved by us. You quoting Hindraker, a blatant partisan, would certainly not convince me of the legality of Bush’s actions, any more than me quoting Kos to you. Regarding the Tribune article, it clearly hinges on the lack of warrants needed for foreign spying, and yet this administration is spying domestically on Americans.

    Suffice it to say that senators and representatives on both sides of the aisle are extremely concerned about the legality of the wiretaps, the circumvention of the FISA court, and the consolidation of power in the executive branch.

    From the AP: Republican Sens. Chuck Hagel of Nebraska and Olympia Snowe of Maine joined Democratic Sens. Carl Levin of Michigan, Dianne Feinstein of California and Ron Wyden of Oregon in calling for a joint investigation by the Senate Intelligence and Judiciary Committees into whether the government eavesdropped “without appropriate legal authority.”

    And if you really want to quote members of previous administrations, how about this one from Bruce Fein, the former Associate Deputy Attorney General under Reagan, and now a constitutional lawyer:

    “President Bush presents a clear and present danger to the rule of law. He cannot be trusted to conduct the war against global terrorism with a decent respect for civil liberties and checks against executive abuses. Congress should swiftly enact a code that would require Mr. Bush to obtain legislative consent for every counterterrorism measure that would materially impair individual freedoms.” ( )


  2. Tyler,

    Did you read John Schmidt’s piece in the Chicago Tribune linked above?

    He was Clinton’s Associate Attorney General. Certainly NOT a RIGHTIE.

    The NSA wiretaps were and are legal.

    If the good Senators you reference above don’t think so Flap dares them to file a federal lawsuit and challenge the President.

    Flap bets they won’t – ’cause they know they will LOSE.

    And Bruce Fein’s comments are ludicrous. How can you run the Executive branch of the federal government when you would have to ask Congress (the committee of 535) for permission to even wipe your nose.

    The NSA surveillance is legal and within the scope of the executive powers of the presidency as defined in the Constitution.


  3. Hi Flap –

    Regarding John Schmidt, I read the article in detail. His argument clearly states that “the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence … We take for granted that the president does have that authority.” And that is fine, but I continue again to point out that the administration is spying on Americans communicating with other Americans. And doing so outside of the FISA provision, which allows the acquisition of a retroactive court order. Further, Schmidt says, “Should we be afraid of this inherent presidential power? Of course. If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense. The danger is that surveillance will not be used solely for that narrow and extraordinary purpose.” And I, along with many others concerned with the administration’s wanton disregard for the rule of law, doubt highly that they have not and will not use the surveillance solely for that purpose.

    Regarding the opinions of Senators and Representatives – DEMOCRATS and REPUBLICANS – they are very concerned about the legality of this NSA program, and are opening Congressional investigations. But really, it can only go so far as Democrats have no control, not being the majority party. So if the Republicans want to bury it, they can. And I would bet at this point, that it is likely that will happen.

    Regarding Bruce Fein, why do you readily quote and support a Dem from Clinton’s administration who thinks that this whole thing is fine and legal, but entirely disregard a Republican from Reagan’s administration who is very concerned about the legality? Because it supports your position, plain and simple, which is to defend the administration. Fein knows his comments about oversight are extreme, and he puts forth that argument because he feels its in response to the extreme actions of our government.

    You can say its constitutional and its legal all you want. That doesn’t make it so. You can listen to the people who support your position (even if they are a Dem), and ignore the people who don’t support your position (even if they are a Republican), and that doesn’t make Bush’s actions any more legal.

    Do you feel safer knowing the government can wiretap and listen to your conversations without any sort of court order? If there was a Democratic president with the same opinion of authority granted him, perhaps he would find it important to keep an eye on right-leaning blogs such as yours. And maybe you’d get a visit from DHS or the SS or the IRS because your First Amendment supported opinions are actually a threat to the President. Maybe you should be detained indefinitely for your views. What other rules can we break under the guise of 9/11 and the War on Terror? Goodbye Fourth Amendment – the First and Second Amendments are next.


  4. Tyler,

    Remember this NSA surveillance was against suspected foreign terrorists – Al Qaeda. It was against the bad guys who want to destroy our country.

    It is not spying domesticlly like you imply (albiet there may be a few errant intercepts).

    Flap feels safer with the President and the NSA scanning the foreign chatter and preventing another 911 or other terrorist act. Flap does not fear this type of surveillance since it is limited to foreign intelligence.

    The Fourth Amendment is not under attack here.

    Can you see the distinction?


  5. Hi Flap –

    Nobody on either side of the aisle, no rational American, would argue that we shouldn’t have a robust intelligence gathering apparatus that gives our leaders the tools to effectively fight foreign terrorists. And further to that, under the FISA provisions, the apparatus explicitly allows for the ability to wiretap in the US, and to do so with the utmost haste, getting approval from the FISA court after the fact.

    BUT! Not even that is good enough for this Administration. They don’t want any petty laws to get in their way. Read what AG Alberto Gonzales said regarding this NSA program a couple days ago: “We’ve had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be — that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that — and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.”

    And this was a Republican controlled Congress in the days after 9/11 when seemingly ANYTHING could get passed (including the PATRIOT Act), and even then, the Congress doubted the legality of the NSA program, and therefore the Administration said screw it, we’ll keep it underwraps and do it anyway.

    So the distinction to me is this: the ability to discretely and quickly conduct intelligence, domestically and overseas, is bound within a legal framework giving the administration the tools they need. They wanted more, but weren’t prepared to take a legal path through Congress, so they did and do operate a quasi-legal or extra-legal NSA program with no oversight, no court authorization, no nothing. And so to me, that potentially is in direct conflict with the Fourth Amendment, which reads as follows in its entirety:

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    So I see it like this:
    1. There are legal ways to spy, consistent with the Fourth Amendment and our Constitution, and the FISA provisions.
    2. The Administration felt this hindered their efforts. They approached a post-9/11 Republican Congress about amending FISA to be more effective for their needs. They were told that there were serious reservations about the legality of what they wanted to do.
    3. The Administration elected to bypass Congress and do it anyway, on the sly.

    So to argue that what the Administration is doing is totally legal and on the up-and-up doesn’t fly with me. Or else, why would they feel the need to bypass Congress?

    Regarding your thoughts on int’l v. domestic (“It is not spying domesticlly like you imply (albiet there may be a few errant intercepts)”) – we really don’t know, do we? The actual quote from an anonymous official is this (from the Reuters article I previously quoted): “Officials, who spoke on condition of anonymity, would not discuss the number of accidental intercepts but the total was thought to represent a very small fraction of the total number of wiretaps authorized without court approval.” But we don’t know what we are really dealing with. Maybe there are 100,000 unauthorized wiretaps, and 2% are these domestic mistakes – that would still be 2,000 violations of federal law. To me the numbers aren’t important – whether its 10 cases, 200 cases or 2,000 cases – the fact that it is happening is important, and wrong.

    Your thoughts?


  6. Tyler,

    My thoughts are that you are good at setting up “strawman” arguments.

    1. Amending FISA

    2. Unknown domestic wiretaps

    I’ll take my chances on the President doing the RIGHT thing against our foreign enemies like Al Qaeda.

  7. Hi Flap –

    Well, I guess we just fundamentally disagree on whether or not the President is abusing his power at the expense of Americans’ civil liberties. I think he is, you think he isn’t.

    As with our previous discussions regarding the culpability of Libby and Rove (and others) in the CIA leak investigations, we’ll see how everything unfolds, won’t we?


  8. Tyler,

    Unless you are a member of Al Qaeda or another terrorist group you have nothing to fear about the NSA Wiretaps and intercepts.

    There is no presidential abuse of power and American’s civil liberties are well protected by the Constitution.


  9. Hi Flap –

    Well, you would think that the President is using his power only to go after the terrorists, but then you read a story like this from NBCTV-LA today:

    The Public Records Act request that was sent to state Attorney General Bill Lockyer seeks documents the California Anti-Terrorism Information Center may have received from the FBI and other law enforcement agencies concerning a number of groups, including the ACLU itself, anti-war group Code Pink, Greenpeace, and People for the Ethical Treatment of Animals.

    The request comes a day after some news outlets reported on documents that the national American Civil Liberties Union had obtained via Freedom of Information Act requests — documents that show the FBI has been monitoring or gathering information on the activities of PETA, Greenpeace and other groups.


    Are you threatened by Greenpeace? Are they terrorists? Is PETA a terrorist organization? Oh, they just aren’t Republican – I get it. So, no, I don’t trust this Administration at all. And yes, you and I totally agree that Americans’ civil liberties are well protected by the Constitution. My concern is that the Adminstration’s actions violate the Constitution.


  10. Tyler,

    Different events and different issues. NSA is not the FBI. The FBI is independent and domestic not foreign.

    We were discussing the NSA terrorist surveillance not FBI domestic surveillance. Different agencies and different laws.

    The President did NOT violate the Constitution – no matter how many times you say it.


  11. Hi Flap –

    First of all, you’re right on the correction – what I cited is the FBI, and not the NSA, conducting domestic spying operations on groups such as Greenpeace and PETA that clearly have nothing in common with the foreign terrorists. I should have stated that in my comment.

    I do not know on whom the NSA was conducting domestic spying operations, whether or not these operations were outside of the FISA provisions, and whether or not those targeted individuals had their Fourth Amendment rights violated. Bush, Cheney, Gonzales and Rice have acknowledged, by non-denials or more directly, the first two, and are willing to take the third one head on a straight-up legal battle. You take one side – that these actions are legal, I take the other, that they are not.

    Right now, a broadening cross-partisan group of senators, representatives, constutional lawyers and scholars and a FISA judge have all expressed serious concerns about the legality of the current administration’s repeated and deliberate actions. These actions very well may have been made with good intentions (“we must do whatever it takes to protect the American people”), but that does not mean they did not act outside and above the law, and that is what concerns these individuals and concerns me as well.


  12. Tyler,

    The FISA judge resigned but gave no statement. You assume. He did not resign from his lifetime tenured position as a federal district court judge – btw. He is older so maybe he wanted more time to play golf?

    Now, the Patriot Act has been extended for six months. Good, but it should have been extended for a few years – as it ultimately will be.

    Flap supposes 24 hearings, 60 witnesses and 3 separate appearances by the Attorney General are NOT enough to forge a compromise/consensus bill? The LEFT playing politics again.

    And with the extension, the Democrats killed the Combat Methamphetamine Act of 2005. Feinstein was a co-sponsor of this bill.


  13. Hi there Flap –

    Regarding the FISA judge, the AP is reporting that his resignation “stemmed from deep concern that the surveillance program that Bush authorized was legally questionable and may have tainted the work of the court that Robertson resigned from.” I’d say that while my assumption is just that, its a far more likely assumption than one which presumes he wants to work on his short game.

    Regarding the Patriot Act, the reason there were sunset provisions in the first place was because there were some serious civil liberties concerns. And those concerns are being debated. I think the extension, which the Bush administration did not want, is a fine compromise, and the Patriot Act should be openly debated, and should reflect the balance of civil liberties and law enforcement.

    You thought I was getting off track citing the FBI secretly spying on non-terrorist domestic groups, but now you’ve brought up the Patriot Act and the Meth Act, although we weren’t discussing these. Why did you bring these up, if not to dodge the discussion we were having regarding the legality of the secret NSA domestic spying program?

    And to accuse the Dems of playing politics, without the acknowledgement that Republicans play politics as well? Ha! Of course they do – they are all politicians. That’s a funny argument.


  14. Tyler,

    The Judge resigned from FISA but not the federal bench. Hummmm Flap wonders why? And CNN and Washington Post both quote unnamed anonymous sources. Come on Judge have some intestinal fortitude and make a pronouncement. But, since he is not resigning his judgeship just a FISA assignment he won’t but then again what do you expect from a Clinton appointment?

    Serious civil liberty concerns about the Patriot Act? 24 days of hearings, 60 witnesses and many weeks of testimony and Senate Minority Leader cannot name one objection or supply the text of an amendment. Political games that just delay passage so that perhaps the Democrats can find a policy amendment that addresses their concerns. Good Grief.

    On the NSA surveillance issue:

    From yesterday’s interview with Professor John Eastman: HH: And does he have that authority, even if he does not have a warrant to conduct that surveillance? JE: Yes, he does, and look. This authority comes directly from Article 2 of the Constitution. Every president going back to George Washington has recognized this. The president that signed the foreign intelligence surveillance act in 1978 specifically, said that of course, this can’t be considered a constraint on the powers that the president has directly under Article 2. That president was Jimmy Carter, not Ronald Reagan or George Bush. This is a pretty well-established incident of war. And what’s most surprising to me is that what the New York Times, and whoever in the Department of Justice, or in the National Security Agency leaked this ongoing tool in that war, have very likely committed treason. I mean, it’s tantamount to somebody in England discovering that Churchill had…and the Churchill administration had figured out the enigma code for the German coding maching, and had revealed that, so that that tool could no longer be used in the prosecution of the war. This really is over the top.

    And from the Washington Times:

    ‘Warrantless’ searches not unprecedented

    Previous administrations, as well as the court that oversees national security cases, agreed with President Bush’s position that a president legally may authorize searches without warrants in pursuit of foreign intelligence.
    “The Department of Justice believes — and the case law supports — that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as he has done, delegate this authority to the attorney general,” Clinton Deputy Attorney General Jamie S. Gorelick said in 1994 testimony before the House Permanent Select Committee on Intelligence.
    That same authority, she added, pertains to electronic surveillance such as wiretaps.
    More recently, the U.S. Foreign Intelligence Surveillance Court — the secretive judicial system that handles classified intelligence cases — wrote in a declassified opinion that the court has long held “that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.”
    Such warrantless searches have been at the center of a political fight in Washington after the New York Times reported Friday that the Bush administration had a program to intercept communications between al Qaeda suspects and persons in this country, a story whose publication coincided with the congressional debate over reauthorizing the USA Patriot Act.
    In a 2002 opinion about the constitutionality of the Foreign Intelligence Surveillance Act (FISA) and the USA Patriot Act, the court wrote: “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.”
    Indeed, previous administrations have used that same authority……

    And political gamesmanship to the detriment of American’s safety is unacceptable.


  15. Hi Flap –

    Well, we keep going around and around, because you keep citing the fact that the president can conduct legal warrantless *foreign* intelligence gathering, and I keep citing the fact that the Administration has a program in place that is doing warrantless *domestic* spying.

    Regarding the FISA judge resigning and the Patriot Act, you are sliding into partisan mode, blaming everything on the Democrats. I think that AP story is interesting and not at all easily dismissed.

    Look, I’m not a Democrat. I’m a registered Libertarian. Before Bush took office you could count on one hand then number of Dems I had voted for, and they were all local candidates. But the current Republican administration, over the last five years, has demonstrated such incredible hubris, arrogance, extreme partisan politics and disregard for civil liberties, personal freedom and the right to privacy, that it has polarized me.

    Regarding this: “And political gamesmanship to the detriment of American’s safety is unacceptable.” – well, what about 9/11? Could there be any more blatant example of “political gamesmanship,” in that this administration invokes 9/11 as the ultimate defense of EVERYTHING they do? In fact, while they talk a good game about national security, what about the miserable grades, filled with Ds and Fs, they recently got from the 9/11 Commission, a commission which the Bush Administration did not even want established in the first place? And to argue against that would be to argue that we had an effective federal response to Katrina because so many important measures were put in place. Ha! You’re doing a heckuva job, Brownie.

    Flap, I gotta get some work done today. Chatting with you has been a pleasure. Keep fighting for your team.


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