Tuesday, January 24, 2006

War Powers Wire Taps

Above is a link to a speech by former NSA head Gen. Hayden on wire tapping under the war powers as opposed to FISA. Hayden provides unprecedented detail and rational.

My running opinion remains that the program is legal under the President's war powers. Congress has known about this , the 9-11 committee recommended a similar program, no American citizens are being prosecuted with the data, most ordinary people think we do far more domestic spying than we do, and there is no reasonable expectation of privacy in an intentional communication with a party with whom the US is at war.

4 comments:

Gordon Cloud said...

I agree with your assessment. Most who opposed the president's action are forgetting who is under surveillance.

Anonymous said...

A few observations re Presidential power:

First, the President's actions are consistent with his Article II powers. Even the FISA appellate court acknowledged that the 1978 Act could not infringe on the President's inherent constitutional authority.

Second, the privacy right under the 4th amendment as described in the Katz decision (defining modern 4th amendment jurisprudence)contained an interesting concurrence by the moderate Justice White. J. White observed that the warrant requirement would not apply in the special circumstances of a national security threat.

Third, The Authorization to Use Military Force adopted following 9-11 was applied in the Hamdi case to uphold the detention of an unlawful combatant who also happened to be an American citizen. It does take a giant leap to conclude the surveillance is likewise a traditional incident to the conduct of war.

If the AUMF gives the President the authority to kill al Qaeda members it certainly gives him the authority to listen to them.

Finally, if the Congress has concerns about the NSA policy, the constitution leaves it with the option of cutting off funding for the program, or passing legislation to that effect.

Anonymous said...

A few observations re Presidential power:

First, the President's actions are consistent with his Article II powers. Even the FISA appellate court acknowledged that the 1978 Act could not infringe on the President's inherent constitutional authority.

Second, the privacy right under the 4th amendment as described in the Katz decision (defining modern 4th amendment jurisprudence)contained an interesting concurrence by the moderate Justice White. J. White observed that the warrant requirement would not apply in the special circumstances of a national security threat.

Third, The Authorization to Use Military Force adopted following 9-11 was applied in the Hamdi case to uphold the detention of an unlawful combatant who also happened to be an American citizen. It does take a giant leap to conclude the surveillance is likewise a traditional incident to the conduct of war.

If the AUMF gives the President the authority to kill al Qaeda members it certainly gives him the authority to listen to them.

Finally, if the Congress has concerns about the NSA policy, the constitution leaves it with the option of cutting off funding for the program, or passing legislation to that effect.

Anonymous said...

A few observations:

1. The Presient has inherent authority under Art. II. The FISA appellate court acknowledged this in interpreting the 1978 FISA Act. The court acknowledged that it did not have the authority to infringe on the President's constitutional authority.

2. The very moderate Justice White observed in his concurrence in Katz (the seminal case on 4th amendment law) that the warrant requirement does not exist where the special circumstances of national security matters are present.

3. The Congressional authorization to use military force following 9-11 was held in the Hamdi case to permit detention of an American citizen. It is not a stretch to conclude that this would also apply to surveillance. After all, if the Congress gave the President the authority to kill members of al Qaeda, it certainly gave him the authority to listen to their conversations.

Finally, In the separation of powers between the President and the Congress provides that the latter may cut off monetary support or enact legislation to the same effect.