Bryan Strawser

Of the many legal analyses of the NSA’s wiretap program that I’ve read - at least the ones actually written by lawyers - John @ Power Line Blog appears to have the best breakdown of the legality of this program that I’ve seen:

There is no mystery about the legality of the NSA intercept program. It is intended to capture foreign intelligence information, including information about potential terrorist threats, and as such, every federal court that has addressed the issue has held that it is within the inherent constitutional power of the President as Commander in Chief. Everything else is immaterial.

This brings us back where we started, i.e., the Constitution. The only constitutional limitation on the President’s power to intercept communications by Americans for national security purposes is that such intercepts be “reasonable.” Is it reasonable for the administration to do all it can to identify the people who are communicating with known terrorists overseas, via the terrorists’ cell phones and computers, and to learn what terrorist plots are being hatched by those persons? Is it reasonable to do so even when—rather, especially when–some portion of those communications come from people inside the United States? I don’t find it difficult to answer those questions; nor, if called upon to do so, would the Supreme Court.

There are, of course, liberal law professors who would like the law to be different from what it is. They are free to develop theories according to which the Supreme Court, should it someday address this issue directly, would rule as they wish. But the administration is entitled to rely on the law as it currently exists. And there is simply no question about the fact that under the Constitution and all controlling precedents, the NSA intercept program is legal.

John Schmidt, who was one of Clinton’s Associate Attorneys General, writes in the Chicago Tribune:

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.

It will be interesting to see in the coming years how this plays out. My prediction is that a Court of Appeals, unless it’s the 9th Circuit, will rule in favor of the President. The Supreme Court will likely do the same - but much hinges as well on some other cases that will be heard before this as I believe they will establish precedent that may be applicable in this case in terms of the wartime powers of the President under Article II.

Today’s New York Times has this story about police surveillance of protest groups and activists:

Undercover New York City police officers have conducted covert surveillance in the last 16 months of people protesting the Iraq war, bicycle riders taking part in mass rallies and even mourners at a street vigil for a cyclist killed in an accident, a series of videotapes show.

In glimpses and in glaring detail, the videotape images reveal the robust presence of disguised officers or others working with them at seven public gatherings since August 2004.

The officers hoist protest signs. They hold flowers with mourners. They ride in bicycle events. At the vigil for the cyclist, an officer in biking gear wore a button that said, “I am a shameless agitator.” She also carried a camera and videotaped the roughly 15 people present.

And while this may make some people uncomfortable, I ask.. so?

I do not want law enforcement interfering or attempting to steer the course of these events, which some allege in this article.

However, I have zero problem with them collecting intelligence information. Some of these groups are disruptive - and were disruptive during the political conventions in 2004 - in both Boston and New York. Shouldn’t the police be investigating to determine if there’s going to be a threat?

American Future grabs this tidbit from the press briefing earlier this week with the Attorney General & General Hayden, the Deputy Director of National Intelligence and former Director of the National Security Agency:

Q Have you identified armed enemy combatants, through this program, in the United States?

GENERAL HAYDEN: This program has been successful in detecting and preventing attacks inside the United States.

The text of the full briefing is available.

I’m just wondering and all.. but considering all of the flap over the Valerie Plame leak investigation and all….

Since real classified information was leaked in this case - and that leak caused irreparable harm to a program that appears to be generating actionable intelligence…

Where’s the outrage over this disclosure of highly classified information? Where are the calls for a special prosecutor?

I’m just wondering.. that’s all…

The illegal strike of the New York City transit workers makes me wistful for these words of wisdom by former President Ronald Reagan:

Let me make one thing plain. I respect the right of workers in the private sector to strike. Indeed, as president of my own union, I led the first strike ever called by that union. I guess I’m maybe the first one to ever hold this office who is a lifetime member of an AFL - CIO union. But we cannot compare labor-management relations in the private sector with government. Government cannot close down the assembly line. It has to provide without interruption the protective services which are government’s reason for being.

It was in recongition of this that the Congress passed a law forbidding strikes by government employees against the public safety. Let me read the solemn oath taken by each of these employees, a sworn affidavit, when they accepted their jobs: “I am not participating in any strike against the Government of the United States or any agency thereof, and I will not so participate while an employee of the Government of the United States or any agency thereof.”

It is for this reason that I must tell those who fail to report for duty this morning they are in violation of the law, and if they do not report for work within 48 hours, they have forfeited their jobs and will be terminated.

And then this great question & answer:

Q. Mr. President, why have you taken such strong action as your first action? Why not some lesser action at this point?

The President. What lesser action can there be? The law is very explicit. They are violating the law. And as I say, we called this to the attention of their leadership. Whether this was conveyed to the membership before they voted to strike, I don’t know. But this is one of the reasons why there can be no further negotiation while this situation continues. You can’t sit and negotiate with a union that’s in violation of the law.

The Secretary of Transportation. And their oath.

The President. And their oath.