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Department Of Justice Defends NSA Foreign Intelligence Program

A legal memo from the Justice Department regarding the NSA intelligence gathering program authorized by President Bush has been leaked to the liberal website Raw Story. You can see all 42 pages of it here (PDF).

An interesting excerpt:

In the specific context of the current armed conflict with al Qaeda and related terrorist organizations, Congress by statute has confirmed and supplemented the President's recognized authority under Article II of the Constitution to conduct such warrantless surveillance to prevent further catastrophic attacks on the homeland. In its first legislative response to the terrorist attacks of September 11th, Congress authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" of September 11th in order to prevent "any future acts of international terrorism against the United States." Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (Sept. 18, 2001) (reported as a note to 50 U.S.C.A. § 1541) ("AUMF"). History conclusively demonstrates that warrantless communications intelligence targeted at the enemy in time of armed conflict is a traditional and fundamental incident of the use of military force authorized by the AUMF. The Supreme Court's interpretation of the AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), confirms that Congress in the AUMF gave its express approval to the military conflict against al Qaeda and its allies and thereby to the President's use of all traditional and accepted incidents of force in this current military conflict--including warrantless electronic surveillance to intercept enemy communications both at home and abroad. This understanding of the AUMF demonstrates Congress's support for the President's authority to protect the Nation and, at the same time, adheres to Justice O'Connor's admonition that "a state of war is not a blank check for the President," Hamdi, 542 U.S. at 536 (plurality opinion), particularly in view of the narrow scope of the NSA activities.

The AUMF places the President at the zenith of his powers in authorizing the NSA activities. Under the tripartite framework set forth by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring), Presidential authority is analyzed to determine whether the President is acting in accordance with congressional authorization (category I), whether he acts in the absence of a grant or denial of authority by Congress (category II), or whether he uses his own authority under the Constitution to take actions incompatible with congressional measures (category III). Because of the broad authorization provided in the AUMF, the President's action here falls within category I of Justice Jackson's framework. Accordingly, the President's power in authorizing the NSA activities is at its height because he acted "pursuant to an express or implied authorization of Congress," and his power "includes all that he possesses in his own right plus all that Congress can delegate." Id. at 635.

The summary at the beginning of the document (about three pages) is worth a read if you don't want to wade through the whole thing.

Since this story broke critics of the President have taken to calling him "King George" and implying that his actions are those of an autonomous monarch who doesn't have to answer to anyone else. Clearly, this isn't true. As has been pointed out several times before on this blog Congress has always been capable of acting as a "check" on these executive powers being utilized by the President. The proper political leadership in Congress (from both sides of the aisle) has been kept abreast of the program throughout the time it has been used and, had they had an objection to what was being done, they had several options for stopping it. They could have rescinded their post-9/11 authorization for military force or could have modified that authorization to narrow its scope. More obliquely, they could have simply defunded the NSA program.

But they didn't do either. Congress knew about the program and apparently didn't feel the need to act. At least, not until the existence of the program was made public by an illegal leak to the media and the Democrats saw an opportunity to pounce.

You can read more from Rob Port at SayAnythingBlog.com


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Comments (12)

"Since this story broke cri... (Below threshold)
Joe Ego:

"Since this story broke critics of the President have taken to calling him "King George" and implying that his actions are those of an autonomous monarch who doesn't have to answer to anyone else."

I've been hearing crap like that for the past 2 or 3 years from normal people I happen to talk to or work with!

Yeah, as an academic I'm su... (Below threshold)

Yeah, as an academic I'm surrounded by people who talk like George W. Bush is the scourge of the Earth and they act like they don't expect anyone to disagree with them, because how could someone with a Ph.D. possibly think differently from them?

They denounce our President as nonchalantly as you might talk about the weather or say that the chicken at lunch was too spicy. And then if you speak up with your opinion everybody craps themselves.

If the leak was illegal as ... (Below threshold)

If the leak was illegal as you’re all claiming, then why is it that Bush didn’t use the year that the Times sat on the story to launch and investigation and punish the leaker? Also if the information was truly a national security issue why isn’t the administration bringing s suit against the Times? The Administration doesn’t seem to have to stones to take action against the Times and one has to wonder If the truly feel there was a breach of national security then why don’t they take legal action?

Since no one really knows what exactly happened, our support or disparagement of the administrations actions are pure speculation based on very little information, but Bush’s lack of action suggests the administration doesn’t really want to open that can of worms.

Rick,Because a publi... (Below threshold)
John Irving:

Because a public investigation would have risked revealing a vital national security resource.

Seems Bush and his people have protecting the U.S. as their top priority.

John Irving,Agreed... (Below threshold)
Son Of The Godfather:

John Irving,

Agreed. One wonders though, with public opinion on the NSA program overwhelingly with them, perhaps a Rovian plot was afoot to pull that elusive football away from the Charlie Brown Democrats yet again.

Operative: "Uh oh, they've got the goods on our NSA program!"

Rove: "...and?..."

Operative: "The libtards will use it against us!"

Rove: "Let them."

Just a thought.


I thought this was particul... (Below threshold)

I thought this was particularly useful for those who are concerned not so much with the necessity of the program as with the notion that the President took its legality lightly.

I'm glad you're all patting... (Below threshold)
sean nyc/aa:

I'm glad you're all patting yourselves on the back, but two points:
1) the DOJ released this, so of course they're going to defend the President's actions. They cite previous case law and the AUMF for justification which is just dandy, but it still does not address what the controversy is about...
2) Were Americans spied on? We keep hearing that they only spied on people associated with al qaeda, but how do we know if that's true? The breadth of this operation (as being reported) is enormous and the capability (albeit inconvenient)to get warrants after the fact exists, so why avoid involving the courts? I, along with half of the country, do not trust this President , so these concerns cannot simply be dismissed.
There is also the problem of increased Executive authority. With a kowtowing Legislature and a soon to be complacent Judiciary, this country is being taken down a path a lot of Americans don't want to go.

Were Americans spied on?... (Below threshold)

Were Americans spied on?

And if so, what of it?

Were Americans spied on?... (Below threshold)
sean nyc/aa:

Were Americans spied on?

And if so, what of it?

I hope this isn't serious. You might not, but I actually value my rights and want to keep them. Why don't you just move into Gitmo? The US gov't can keep a real close eye on you there. (hyperbole intended)

"With a kowtowing Legislatu... (Below threshold)
Joe Ego:

"With a kowtowing Legislature and a soon to be complacent Judiciary"

If the Legislature gave in to the President's every whim then things would definitely be much different today, even if we were just talking about Republicans. There'd probably be fewer earmarks (pork) in the budget, there might be a lot more spent on Katrina recovery, and there sure as hell would be oil exploration in the ANWR - just to name a few things.

When did the judiciary become complacent? The Kelo ruling was against the President's wishes. So too with Oregon's assisted suicide law ruled on last week (more a states' rights issue than about suicide anyway). There are plenty of real (non-partisan squabling) debates going on with regard to conservative concerns over Roberts' and Alito's judicial philosophies.

Finally, as many people have said many times about the NSA operations: nobody in a position to talk knows exactly what was done to whom or why. If we don't know those things then we don't know if anything illegal was done. If Senators were briefed on these operations and lawyers were consulted then at the very least we should have good reason to believe that none of the crazy hypotheticals being spouted about "King George's" "domestic spying" are at all true.

Instead of a serious discussion about Presidential authority and foreign surveilance, we get to deal with a bunch of partisan rhetoric and 'gotcha' debate tactics. I'm not at all interested in losing my freedom, but if foreign intelligence gathering operations show that some Al Queda financier called me in the course of his day job then the NSA is welcome to know about it. There is, of course, a difference between foreign intelligence and information discovered through a legal warrant process.

it's a legislature that kow... (Below threshold)
sean nyc/aa:

it's a legislature that kowtows enough that Bush has still not vetoed a bill. and less pork, yeah right. Bush care more about fattening corporate cronies' pockets than about reducing spending or deficits. That is what the Abramoff scandal eventually boils down to, serving corporate and political interests before the citizens' interests, even the interests of "true conservatives" who want to reduce spending.

and the complacent judiciary I'm talking about is with respect to one particular issue, executive power. screw all that other stuff, Bush wants to be a "war president" all the time and disregard the Constitution when it doesn't serve his interest or interpret certain passages in certain ways that no one else has done before when that suits him. And the 2 new justices were chosen with that reasoning in mind.

As has been pointed out ... (Below threshold)

As has been pointed out several times before on this blog Congress has always been capable of acting as a "check" on these executive powers being utilized by the President.

I guess they could pass "FISA 2: No, really, we meant it. It's law."






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