Monday, April 24, 2006


An Illinois legislator found an obsure loophole that allows for state legislatures to start impeachment procedings against the president, which would then require the US congress to act on it:

There is no question Bush *should* be impeached. He has already admitted to a felony by ordering phone calls to be wiretapped without oversight by FISA courts. As far as I know, the constitution did not make special provisions allowing a law to be broken if the President thinks it is too limiting for him to follow it.

But, the question is whether something like this will create a political backlash. Any opinions out there?


Orinda said...

I think there are laws in place to allow for the wiretaps... Though Bush may be stretching them a bit. Nevertheless, I'm more afraid of Al Qaeda than I am of Bush; so if wiretaps, which btw are intended to intercept foreign (not domestic) communications, can stop a terrorist from denotating a bomb on a subway, than I am for it. As far as the legalities go, I think this pretty much sums up the legal precedent. It says after 911 Congress authorized the President to use force to go after Al Qaeda.

Now, that being said, when they start using it to go after environmental activists, that's another story, but any good lawyer could have such "evidence" thrown out if it was collected through this particular wiretapping program which was authorized to use force against Al Qaeda terrorists not domestic activists. Remember, one qualification of the electronic surveillance program is the signal of the second party in the communication must be foreign.

Dan S said...

The laws in place for wiretaps require going to a FISA court, which pretty much rubberstamp approval, so it is mystery why the administation doesn't do it. I don't believe authorization of force has anything to do with wiretapping.

The issue isn't Al Queda - certainly if there is someone placing calls to known Al Queda members, FISA courts would immediately allow it (and they can even postdate it like 3 days afterward). It is likely the reason they don't go through FISA is because the wiretapping is actually much broader than that.

No one is against legally wiretapping Al Queda, but it is my understanding that what is happening is neither legal nor limited to known terrorists.

Dan S said...

As a followup, here is an excerpt from an article by Paul Craig Roberts, a former Wall Street Journal editor and Reagan administration appointee.

Full text at:

"Sixty-four percent of the respondents [of a NYT/CBS poll] have concerns about losing civil liberties as a result of anti-terrorism measures put in place by President Bush. Yet, 53 percent approve of spying without obtaining court warrants "in order to reduce the threat of terrorism."

Why does any American think that spying without a warrant has any more effect in reducing the threat of terrorism than spying with a warrant? The Foreign Intelligence Surveillance Act, which Bush is
disobeying, requires the executive to obtain from a secret panel of federal judges a warrant for spying on Americans. The purpose of the law is to prevent a president from spying for partisan political reasons. The law permits the president to spy first (for 72
hours) and then come to the court for permission. As the court meets in secret, spying without a warrant is no more effective in reducing the threat of terrorism than spying with a warrant."

Orinda said...

Why does any American think that spying without a warrant has any more effect in reducing the threat of terrorism than spying with a warrant?

Am I supposed to believe that al Qaeda is really that dumb, that it doesn't know every letter of our law and won't use it against us? And do you think it's members are all well known to us? Not every terrorist looks and sounds like bin Laden. It could take weeks, or even months to determine if a lead is solid; ES can be necessary even when (or especially when) you don't know. You can't go to a jury based on every lead, esp if it takes time for these leads to pan out... Discovering just who is al Qaeda is not easy. If you think it's members don't know how to exploit our democracy to their own end then you are very naive.

Not everything can be out in the open--some things just have to remain highly classified. Remember whatever the public knows, so too does al Qaeda. Do you think al Qaeda doesn't know about FISA? And the process of getting a warrant? Do you think it can't and won't exploit that?

The secret ES that is happening is legal. The authorization to use force, which was passed by the Congress in the days following September 11th, constitutes the authorization to use all means, including ES to intercept al Qaeda transmissions--b/c it's crazy to think that can be determined in three days or at all if you are not listening in for sometime already.

I thought the Iraq war was a mistake, but I don't think this is. As I said, if it is abused then we have laws to deal with that. But all of our laws are mute if there is no civilization left.

That is the aim of al Qaeda. Why would you trust it more than your own gov't? Do you think Bush is really that evil? That he is only motivated by money? Don't you think that's just a bit simplistic?

Dan S said...

As I said, wiretapping Al Queda is desirable and legal. Wiretapping everyone in the hopes of maybe catching an Al Queda conversation is not legal.

There is simply no legal justification for this. But the legal argument is different from the moral argument.

Think about what you are advocating. That the government should be allowed to eavesdrop on anyone at anytime in the hopes they will catch the bad guys. Is this the kind of civilization you want to live in? It sounds more like Nazi Germany or Soviet Russia than the United States of America.

Is the only way to not be exploited by Al Queda to give up basic freedoms like freedom from the government listening in on our phone calls?

if it is abused then we have laws to deal with that

If wiretapping is already legal, then what law applies to preventing its use for nefarious political purpose (for example, spying on peace protestors, which we already know the FBI is doing).

The fact is, there are already laws against this now, and they are simply being ignored. We have let our fear blind our judgement, again.

Orinda said...

As I said, wiretapping Al Queda is desirable and legal. Wiretapping everyone in the hopes of maybe catching an Al Queda conversation is not legal.

So how do you know who al Qaeda is? If it were as easy as identifying members by a uniform or a country or a job title, then the ES wouldn't be necessary.

Think about what you are advocating. That the government should be allowed to eavesdrop on anyone at anytime in the hopes they will catch the bad guys. Is this the kind of civilization you want to live in? It sounds more like Nazi Germany or Soviet Russia than the United States of America.

I think we have to make some sacrifices in wartime. It's a different world since 911. I know you might want to turn the clock back, who wouldn't... but we have to be realistic about the threat of annihilation and make some tough choices.

Is the only way to not be exploited by Al Queda to give up basic freedoms like freedom from the government listening in on our phone calls?

This program does not eavesdrop on everyone and anyone... It is very specific. The calls must be coming from overseas.

If wiretapping is already legal, then what law applies to preventing its use for nefarious political purpose (for example, spying on peace protestors, which we already know the FBI is doing).

The ES is restricted to phone conversations where one member is located in another country. If the FBI is spying of peace protestors, they are not doing it with this particular ES program which is highly classified and very specifically targets calls coming from overseas (mostly overseas countries were al Qaeda is likely to have quite a bit of range: Syria, Jordan, Egypt, Morocco, et al.)

The fact is, there are already laws against this now, and they are simply being ignored. We have let our fear blind our judgement, again.

Again, this is not true. Pursuant to "Use of Force" authorized by Congress after 911, this is not illegal.

I think this particular ES has also nabbed a number of would-be terrorists, or at least is now tracking them.

I wouldn't worry about the Peace Protestors getting trailed. There is not enough money in the FBI or NSA budget to keep track of even 1 % of all the US peace activists, and some of those peace activists are actually wolves in sheep's clothes anyhow and would love to see al Qaeda wreak havoc. But until you lose a family member or close relation in a terrorist attack, I don't think you should be saying ES is unnecessary or illegal.

Dan S said...

So how do you know who al Qaeda is? If it were as easy as identifying members by a uniform or a country or a job title, then the ES wouldn't be necessary.

Ah, there's the rub, eh? In order to spy on possible Al Queda suspects, we have to spy on everyone.

Remember that the existence of this program only came to light after a reporter dug it out. What makes us think this is limited in any way? We certainly cannot trust this administration to tell us the truth. Bush previously denied that we were doing this (roving wiretaps) before he admitted to it. Once you recieve a foreign phone call, you are in the web and being spied on.

I don't know how many ways to say this: It is currently illegal to randomly spy on US citizens domestically without a warrant, even if they recieve phone calls from overseas. No amount of authorization to use force against Al Queda changes that. No amount of fear of Al Queda changes the law. If we want to do this legally, we need to change the law.

The bigger picture though is that we can't continue to erode civil liberties because we are at war with Al Queda. To advocate for temporary sacrifices in this war is advocating for permanence, becuase the war against terrorism will never end.

Al Queda is not taking away our way of life - we are voluntarily giving it away to ever greater government power.

Orinda said...

It is currently illegal to randomly spy on US citizens domestically without a warrant, even if they recieve phone calls from overseas. No amount of authorization to use force against Al Queda changes that.

Apparently it is very legal. It was authorized by Congress 45 days after 911. Just because you can chant "it's illegal" again and again, doesn't make it so.

Furthermore, I don't know why you are so afraid to argue specific points. Opinions are cheap (or as one wise person once said, "They are the new pornography.")

There is a very well written article, now considered somewhat seminal to right-wing bloggers, on the legality of the ES and I provide the link here, not because I believe you have the good sense to be informed of all the facts, but because your readers might be interested in reading what lies beyond the propaganda (both left and right).

The solid legal basis for the administration’s surveillance program

Why not do a post which answers each point raised in this article (since you are so convinced of the illegality of ES), then you would actually be adding something substantial to the mix.

Dan S said...

I will chase down that info in the next day or two, but in the meantime, George Bush himself understood this to be illegal on 4/20/04.

Now, by the way, anytime you hear the United States government talking about wire tap, it requires—a wire tap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.

And here is a former NSA employee talking about the program itself

...track and sort through every domestic and international phone call as they are switched through centers, such as one in New York, and to search for key words or phrases that a terrorist might use. "If you picked the word 'jihad' out of a conversation," Tice said, "the technology exists that you focus in on that conversation, and you pull it out of the system for processing." According to Tice, intelligence analysts use the information to develop graphs that resemble spiderwebs linking one suspect's phone number to hundreds or even thousands more. "That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum," Tice said

In terms of arguing specific points, are you refering to questions like "why do you trust Al Queda more than your own government?" :)

Anonymous said...

On the issue of legality, here's what a bunch of lawyers say (From the Chicago Sun Times, Feb 14, 2006):

Democratic and Republican attorneys overwhelmingly approved a resolution Monday urging President Bush to seek approval behind the closed doors of a courtroom before engaging in any more eavesdropping on international telephone calls.

"I want the president to listen to terrorists as much as he does," former Miami federal prosecutor Neal Sonnett said. "We stand shoulder to shoulder with the president in our desire to fight terrorism in this country and around the world. But . . . we cannot allow the Constitution and our rights to become victims in the fight against terrorism."

Sonnett chaired a committee that drafted the resolution, which was overwhelmingly passed Monday by American Bar Association members at their midyear meeting in Chicago. Former FBI Director William Sessions also sat on the committee.

The attorneys said that, contrary to arguments by Attorney General Alberto Gonzales, Bush does not have legal authority to ignore the Foreign Intelligence Surveillance Act -- passed as a response to executive abuses of the Watergate era -- and eavesdrop on conversations without seeking approval of the secret courts set up by the act.

Gonzales argues differently.


"The attorney general has clearly articulated a sound legal analysis of the program based on the president's constitutional authority supplemented by the authorization for use of military force provided by Congress," Department of Justice spokesman Brian Roehrkasse said.

Gonzales told a congressional panel that the act does not allow the government the "nimbleness" to respond to terror threats.

If that's the case, Gonzales should ask Congress to amend the act as it has already done four times since 2001, Sonnett said.

The ABA, with 407,000 members, also urged Congress to make clear that its resolution allowing Bush to use force to respond to terrorism did not give him authority to disregard FISA. The chairman of the ABA's New York delegation tried to delete that paragraph from the resolution but was defeated by a voice vote.

"The message to the president and Congress is really a benevolent one," ABA President Michael Greco told the 550 delegates. "Mr. President, we appreciate what you are doing to protect our safety, but we want to appreciate you even more for making sure that you protect our constitutional freedoms."

There's also a civil case in Oregon that's seeking to have the president's spying declared illegal. you can read the article here.

So it's sort of in legal limbo right now, although the ABA resolution seems to lean it more towards "illegal."

So, argue on...


Dan S said...

As to Bryon York's piece, the "sealed case" that he refers to does not apply to the wiretapping program, and even the DOJ has said this. See here for a full account. The relevant part is:

Given the administration's clear reliance on this particular line of dicta in Sealed Case, the House Democrats asked an obvious question:

36. Was any judge on the FISA court of review informed of the NSA program as part of the briefing of the 2002 appellate case, In re Sealed Case? Were any of the lawyers on that case read into the program? How many?

Here's the administration's response:

As we noted above, the identity of individuals who have been briefed into the Terrorist Surveillance Program is generally classified. We note, however, that In re Sealed Case, 310 F.3d 717 (For. Int. Surv. Ct. Rev. 2002), involved whether the FISA Court had statutory or constitutional authority to place restrictions on interaction of criminal prosecutions and foreign intelligence investigators as a condition for granting surveillance orders. The Terrorist Surveillance Program would not have been relevant to the question before the court in that case (emphasis added).

Wikipedia has a very even balanced explanation of the whole thing. See here

Below are bullet points of organizations and scholars weighing in. The overwhelming opinion is that this is illegal.

* The Congressional Research Service, a nonpartisan research arm of the Library of Congress, released a detailed memo on January 5, 2006 regarding the NSA electronic surveillance of communications, concluding that "it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations" and that the Administrations reliance on executive power was not "well-grounded." [123] [124] Furthermore, it is evident the interpretation that has been advanced (by most notably John Yoo) is more broad than originally intended. More to the point: "the legislative history of the force resolution shows that Congress had no intention of broadening the scope of presidential warmaking powers to cover activity in the United States. According to Senator Tom Daschle, the former Senate majority leader who negotiated the resolution with the White House, the Administration wanted to include language explicitly enlarging the President's warmaking powers to include domestic activity. That language was rejected. Obviously, if the Administration felt it already had the power, it would not have tried to insert the language into the resolution." [125]

* The Congressional Research Service released another report on January 18, 2006, "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions". The report argued that it was an intelligence collection, rather than a covert action program, and as such the Bush administration's refusal to brief any members of Congress on the warrantless domestic spying program other than the so-called Gang of Eight congressional leaders is "inconsistent with the law." [126]

* Bruce Fein, former Assistant Deputy Attorney General under Ronald Reagan and well known as a conservative Constitutional scholar, responded to the revelation of the warrantless NSA program by saying, “On its face, if President Bush is totally unapologetic and says I continue to maintain that as a war-time President I can do anything I want – I don’t need to consult any other branches – that is an impeachable offense. It’s more dangerous than Clinton’s lying under oath because it jeopardizes our democratic dispensation and civil liberties for the ages. It would set a precedent that … would lie around like a loaded gun, able to be used indefinitely for any future occupant.” [127]

* Professor Peter Swire, the C. William O’Neill Professor of Law at the Ohio State University and Visiting Senior Fellow at the Center for American Progress, wrote a detailed "Legal FAQs on NSA Wiretaps" concluding that "[b]ased on the facts available to date, the wiretap program appears to be clearly illegal."[128] Prof. Swire has previously written a very detailed history and analysis of the Foreign Intelligence Surveillance Act, published in Volume 72 of the George Washington Law Review, at 1306 (2004) and previously chaired a White House Working Group, including the intelligence agencies, on how to update electronic surveillance law for the Internet Age.

* Fourteen of the nation's top constitutional scholars, from across the political spectrum, sent a legal brief to leading members of Congress in which they concluded that "the Bush administration's National Security Agency domestic spying program... appears on its face to violate existing law."[129] [130] After the Department of Justice released its memo of January 19 arguing for the legality of the program, the same fourteen authors issued a second letter to the same Congressional leaders rebutting the Justice Department's legal analysis. [131] The fourteen authors are:

Curtis Bradley, law professor, Duke Law School, former Counselor on International Law in the State Department Legal Adviser's Office
David Cole, law professor, Georgetown University Law Center
Walter Dellinger, law professor, Duke Law School, former Deputy Assistant Attorney General, Office of Legal Counsel and Acting Solicitor General * See Below
Ronald Dworkin, law professor, NYU Law School
Richard Epstein, law professor, University of Chicago Law School, Senior Fellow, Hoover Institution
Philip B. Heymann, law professor, Harvard Law School, former Deputy Attorney General
Harold Hongju Koh, law professor and Dean, Yale Law School, former Assistant Secretary of State for Democracy, Human Rights and Labor, former Attorney-Adviser, Office of Legal Counsel, DOJ
Martin Lederman, law professor, Georgetown University Law Center, former Attorney-Adviser, Office of Legal Counsel, DOJ
Beth Nolan, former Counsel to the President and Deputy Assistant Attorney General, Office of Legal Counsel
William S. Sessions, former Director of the FBI under Presidents Reagan and Bush I, former Chief United States District Judge
Geoffrey Stone, law professor and former Provost, University of Chicago
Kathleen Sullivan, law professor and former Dean, Stanford Law School
Laurence H. Tribe, law professor, Harvard Law School
William Van Alstyne, law professor, William & Mary Law School, former Justice Department attorney under President Eisenhower

* Robert Reinstein, dean of the law school at Temple University, has asserted that the warrantless domestic spying program is "a pretty straightforward case where the president is acting illegally... When Congress speaks on questions that are domestic in nature, I really can't think of a situation where the president has successfully asserted a constitutional power to supersede that... This is domestic surveillance over American citizens for whom there is no evidence or proof that they are involved in any illegal activity, and it is in contravention of a statute of Congress specifically designed to prevent this." Mr. Reinstein asserted that the broad consensus among legal scholars and national security experts is similar to his own analysis, and he predicted that the courts will rule that the program is unconstitutional. New York Times

* Edward Lazarus, law professor and former U.S. Supreme Court clerk and federal prosecutor, has argued in articles such as "Warrantless Wiretapping: Why It Seriously Imperils the Separation of Powers, And Continues the Executive's Sapping of Power From Congress and the Courts", that "Unilateral executive power is tyranny, plain and simple".[132]

* Jonathan Turley, a professor at The George Washington University Law School and a specialist in surveillance, speaking about Bush's admission that he authorized warrantless wiretaps, was quoted on December 20, 2005 by Knight Ridder writer Ron Hutcheson, "The president’s dead wrong. It’s not a close question. Federal law is clear. When the president admits that he violated federal law, that raises serious constitutional questions of high crimes and misdemeanors."[133] Turley had testified against Clinton, according to an December 22, 2005 interview in Salon. "Many of my Republican friends joined in that hearing and insisted that this was a matter of defending the rule of law, and had nothing to do with political antagonism. I'm surprised that many of those same voices are silent. The crime in this case was a knowing and premeditated act. This operation violated not just the federal statute but the United States Constitution. For Republicans to suggest that this is not a legitimate question of federal crimes makes a mockery of their position during the Clinton period. For Republicans, this is the ultimate test of principle."[134]

* Douglas Kmiec, constitutional law professor and law school chair at Pepperdine University, believes that "There is not a scholar alive who could confidently say who would prevail in a clash between a federal statute and the President's assertion of inherent power vis-à-vis the McCain Amendment, or, for that matter, war-on-terror-related wiretapping", while conceding that "Admittedly, FISA's own statutory wartime exception (excusing the warrant requirement for a brief period following a war declaration) is in tension with a sweeping inherent power claim."[135]

* Orin S. Kerr, a professor of law at The George Washington University Law School and scholar of the legal framework of electronic surveillance has opined that the question of whether the wiretapping violated the Fourth Amendment and the criminal provisions of FISA is a complex issue, but that after his first analysis he concluded that the wiretapping probably did not infringe on Fourth Amendment constitutional rights, but, in his opinion, probably did violate the FISA statute.

* President Bush has maintained he acted within "legal authority derived from the constitution" and that Congress "granted [him] additional authority to use military force against al Qaeda".[136] However, while the President may argue that the necessary statutory authority to override FISA's warrant provisions is provided by the authorization to use "all necessary force" in the employment of military resources to protect the security of the United States, and that the use of wiretapping is a qualifying use of force (under the terms of the authorization for the use of military force against al-Qaida as found in Senate Joint Resolution 23, 2001), Kerr believes that this justification is ultimately unpersuasive, as is the argument that the President's power as the Commander-in-Chief (as derived from Article Two of the United States Constitution) provides him with the necessary constitutional authority to circumvent FISA during a time of war.[137] Kerr cautiously estimates that about eight of the nine Supreme Court justices would agree with him that Article Two cannot trump statutes like FISA.[138] Bush's efforts to find justification for the wiretap program within the authorization to use "all necessary force" was further undermined when former Senator Tom Daschle said in a Washington Post op-ed that Congress turned down a specific Bush request for the power to pursue terrorist activity in the United States immediately after the September 11 attacks in the United States.[139]

* John Schmidt, an associate attorney general during the Clinton Administration (1994-1997), believes the President's authorization of the NSA electronic surveillance of communications is consistent with court decisions and with the positions of the Justice Department under prior presidents. He argues that the passage of FISA did not alter any constitutional authority given to the president to conduct and authorize warrantless searches and surveillance for the purposes of foreign intelligence gathering. Schmidt cites the recent Foreign Intelligence Surveillance Court of Review opinion, In Re Sealed Case No. 02-001, for the proposition that "[a]ll the ... courts to have decided the issue held 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."[140] In another piece [141], Schmidt also recalls that then-Attorney General Edward Levi (the bipartisanly well-respected AG during the Ford administration), despite supporting legislation in the foreign intelligence area, told the Church Committee that in his view Presidential authority to conduct foreign intelligence could not be limited by Congress to a statutory procedure.

* John Yoo, law professor and former deputy director of the Justice Department's Office of Legal Counsel, wrote on September 25, 2001, that "[in] the exercise of his plenary power to use military force, the President's decisions are for him alone and are unreviewable."[142] The memo examined closely the Executive branch's authority to deploy troops and respond to emergencies. If the NSA's foreign intelligence gathering is akin troop deployment or other war making activities, Yoo's memo would suggest that President Bush's authorization is both legal and constitutional.

* John Eastman, Chapman Law professor and Director of the Claremont Institute Center for Constitutional Jurisprudence, wrote in a letter to House Judiciary Committee Chaiman James Sensenbrenner on January 27, 2006, that the Congressional Research Service's assessment was institutionally biased in favor of Congress, ignored key constitutional text and Supreme Court precedent, and that the case made by the Department of Justice in support of the President's authority to conduct surveillance of enemy communications in time of war was compelling.[143]

* On January 16, 2006, former Vice President Al Gore gave a major speech critical of the administration, said "At present, we still have much to learn about the NSA's domestic surveillance. What we do know about this pervasive wiretapping virtually compels the conclusion that the president of the United States has been breaking the law, repeatedly and insistently." Washington Post

* John W. Dean wrote a column published 30 December in Findlaw stating: "There can be no serious question that warrantless wiretapping, in violation of the law, is impeachable." Mr. Dean went on to say, "These parallel violations underscore the continuing, disturbing parallels between this Administration and the Nixon Administration..." "Indeed, here, Bush may have outdone Nixon..."

In comparing the wiretapping policies adopted by the Bush Administration, Mr. Dean commented: "No president before Bush has taken as aggressive a posture -- the position that his powers as commander-in-chief, under Article II of the Constitution, license any action he may take in the name of national security - although Richard Nixon, my former boss, took a similar position."
Commenting on Professor John Yoo's legal arguments justifying the Bush Administration policy, Mr. Dean remarked that he found "Professor Yoo's legal thinking bordering on fantasy." In support of his conclusion, he referenced the recent review of The Powers of War and Peace:The Constitution and Foreign Affairs After 9/11 by John Yoo in the New York Review of Books (Volume 52, Number 18 · November 17, 2005) by Georgetown University School of Law professor David Cole.
In his review, "What Bush Wants to Hear", Professor Cole commented that "Yoo was so influential in the Bush administration..." because his arguments were exactly what "the president would have wanted to hear." Professor Cole writes: "Yoo contends that the president has unilateral authority to initiate wars without congressional approval, and to interpret, terminate, and violate international treaties at will. In other words, when it comes to foreign affairs, the president exercises unilateral authority largely unchecked by law—constitutional or international."

* According to a report in The Boston Globe on February 2, 2006 three law professors, David Cole (Georgetown University), Richard Epstein (University of Chicago), and Philip Heymann (Harvard), said that what Bush is doing is unprecedented. Bush's claim that other presidents asserted that wartime powers supersede an act of Congress, "is either intentionally misleading or downright false," Cole said. He said Bush is misstating the In Re Sealed Case No. 02-001 ruling which supported Congressional regulation of surveillance. Epstein believes the United States Supreme Court would reject the Administration's argument and said, "I find every bit of this legal argument disingenuous...The president's position is essentially that (Congress) is not doing the right thing, so I'm going to act on my own." Professor Heymann, a former duputy US attorney general said, "The bottom line is, I know of no electronic surveillance for intelligence purposes since the Foreign Intelligence Surveillance Act was passed that was not done under the . . . statute." [144]

* Bryan Cunningham, a national security lawyer and Justice and CIA officer in the Clinton and Bush Administrations (Deputy Legal Advisor to the National Security Council from 2002 - 2004) wrote extensively about the Constitutional and legal authorities supporting the President's authority to authorize the NSA activities in a February 3, 2006 letter to Congress, available on the website of Cunningham's Denver law firm Morgan & Cunningham LLC, along with the relevant federal statute.

* On February 13, 2006, the American Bar Association issued a statement denouncing the warrantless domestic surveillance program, accusing the President of exceeding his powers under the Constitution. The ABA also formulated a policy opposing any future government use of electronic surveillance in the United States for foreign intelligence purposes without first obtaining warrants from a special secret court set up under the 1978 Foreign Intelligence Surveillance Act.[8]

* Walter Dellinger argued the opposite position for the Clinton Administration in 1994. [9]

* An internal 23-page legal analysis by David S. Kris, the Associate Deputy Attorney General for national security under President Bush until 2003, was released by the Department of Justice in EPIC's FOIA case on March 8, 2006. Kris' analysis, furnished to Courtney Elwood in the Department of Justice in December, 2005, examines the administration's legal arguments and finds them weak. It expresses doubt that the administration's arguments for its legal authority to conduct the warrantless surveillance program would be upheld by the courts

Orinda said...

Sorry Dan S. This is no more than a parade of opinion, from the mouths of titled white men not withstanding.

The argument about the legality of the ES program is not as simplistic as you present.

For a more balanced analysis, which is not completely corrupted by liberal hyperbole and the hatred of George Bush, see Professor Orin Kerr at

Comments here are exceptional as well.

Orinda said...

Volokh Conspiracy

Legal Analysis of the NSA Domestic Surveillance Program:

Orinda said...

I see Kerr is on your list above as well.

Dan S said...

Sorry Dan S. This is no more than a parade of opinion, from the mouths of titled white men not withstanding.

So, I have to ask: What qualifies as not "just opinion" on this subject? My opinion and the opinions of many many legal experts, including the one you just cited (Kerr) overwhelmingly point to it being illegal.

The national review document you cited was a single right wing opinion piece, easily debunked by a quick internet search as not being relevant by the administration's own DOJ.

Like most arguments these days, it seems to end in, well, that's just left wing bias, without any alternate data presented.

I guess I'll close with:

"Reality has a well-known liberal bias" - Stephen Colbert

:) :)

Orinda said...

All I am saying is, it's debatable; it's not a slam-dunk. The Right make a strong case for it's legality on a number of points. Kerr's argument (and it's not an opinion when someone makes a claim and provides compelling supporting evidence) is that ES is not unconstitutional--something you claimed w/o much supporting evidence. While Kerr does conclude that it may have violated the FISA statute... he also questions whether FISA itself had not transgressed the Constitution.

I am not a Constitutional Lawyer, so my opinion is not really relevant. But I do respect those who have parsed this dispassionately and have presented thoughtful analysis.

Of course who does that better than Steve Colbert ; )

Orinda said...

By the way... where's the debunking of the Byron York Nat'l Review article? I tried googling but couldn't find.


Dan S said...

It is the Glen Greenwald posting I liked to above (

The York piece focuses exclusively on "sealed case" as the justification and Greenwald shows how the DOJ itself said it didn't apply.