Site Meter

Beyond His Power: Bush’s Authorization of Warrantless NSA Surveillance

You may also like...

21 Responses

  1. Raymond B says:

    Bush a criminal for spying? Hmmm. Many Americans are very upset with the revelation that our President has sanctioned wiretaps on our own citizens. I hear countless arguments that Bush has broken the law and should go to jail.

    What President Bush is actually guilty of is most likely using bad judgment to make a decision on a snap issue. If this was a crime he may be a repeat offender. However, as of right now President Bush is only guilty of not following proper procedures in regards to having an individual spied upon, he is not legally breaking any regulations or laws established denying his privilege to authorize spying, he basically is just not following the proper rules.

    President Bush does have the ability to authorize the use of surveillance on individuals inside the domestic United States when it is shown that this person may be a threat to American citizens.

    The problem Bush is currently dealing with is that he has been neglecting the FISA court and ordering the wiretaps directly, citing National Security concerns.

    Civil Rights advocates are afraid this power could be manipulated as a way to stop free speech, or opposing viewpoints.

    Bush said the program, which allows him flexibility to protect America, was narrowly constructed and has been used with strict adherence to U.S. law and the United States Constitution.

    The President may be wrong, he may have really underestimated the reaction to his perceived cavalier attitude, but going to jail, I just don’t think that will happen in this case no matter how much his detractors desire it.

    Raymond B

    http://www.voteswagon.com

  2. Legal Analysis of the Wiretaps

    One of the really cool things about blogs is that very smart, knowledgeable people can offer up their opinions on topics of the moment. In this case, it’s Orin Kerr and Daniel Solove offering up extended legal analyses of the…

  3. John Jay says:

    How can one reconcile claims that this program is extraconstitutional vis-a-vis the Fourth Amendment when FDR was able to operate the “Office of Censorship” from 1941 to 1945 opening, reading, and even censoring all private international postal mail, telegrams, and telephone communications of American citizens? I can’t see how FDR’s program would be within the scope of the Fourth Amendment and Bush’s outside of it.

  4. Marvin says:

    Bush acted to protect…the government is tracking phone numbers and email address obtained from terrorists, so odds are the calls/emails did not involve US Persons and if the govt stopped monitoring under this program once they realized it was a US Person.. still legal.

    Bush acted to protect this nation.. His calculation was that atleast 35 senators will support this limited monitoring of international communication.

    This a ‘border search’ – which is allowed under the 4th.

  5. Legal Analysis of the NSA Domestic Surveillance Program:

    Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Althoug…

  6. rich says:

    So, if you are correct on all points ,would there still be an issue of qualified immunity on the civil side?

  7. NSA Surveillance: Blog Post Roundup

    There is a lot of great analysis and opinion in the blogosphere regarding Bush’s authorization of warrantless NSA surveillance. Here are some useful links: News Articles James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts (N.Y….

  8. PrawfsBlawg says:

    Larger matters than Kiwi

    Like Steve, I too was surprised about the revelation that the NYT sat on the Snoopgate story for a year. Some interesting developments. First, Orin Kerr’s got a thorough post up analyzing the various legal questions about the President’s claim that the…

  9. Bush: Roving the Times?

    With James Risen presumably off reading the galley proofs of his forthcoming book Screwing Over America (For Fun and Profit), David Sanger joined in the next installment of Eric Lichtblau’s year-long fevered pursuit to tip al Qaeda to the nature…

  10. Myopic Zeal says:

    Bush’s “Eavesdropping”

    While the Democrats and the press scream about Bush eavesdropping on your grandmother in her nursing home, others are taking a more in depth look at what is going on. Bush has come out swinging on this one, clearly ready to defend what he believes is…

  11. Geremy says:

    An issue that is not directly addressed either above or by Prof. Kerr is the separation of powers–an issue that was squarely before the scotus in Hamdi.

    The constitutional question posed by the Executive’s wiretapping of U.S. citizens is not whether it has the power to wiretap citizens’ communications at all–it surely does under appropriate circumstances–but whether that power must be constrained by judicial oversight (either through a FISA court or some other neutral magistrate). In other words, the question is akin to the judicial review question in Hamdi (may courts review the enemy combatant designation?), not the does-the-power-exist question at issue in Padilla (does the president have the power to seize US citizens as ECs within the US?).

    The answer from both the Keith case and the Hamdi plurality is that such a unilateral power over U.S. citizens–exempt from judicial oversight–does not exist. As the Hamdi plurality stated, “Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” So said the plurality in rejecting the government’s claim, based on Article II, that courts have no real role to play in reviewing the executive’s enemy combatant determination. The Court said basically the same thing in the Keith case: “The Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government.” Accordingly, the separation of powers strongly suggests that the executive’s power to wiretap U.S. citizens’ communications must be subject to judicial oversight–and unilateral wiretapping of such communications without a warrant would be unconstitutional.

  12. SCOTUSblog says:

    Blog Round-Up – Tuesday, December 20th

    The New York Times has this article on the fact that, despite a Supreme Court holding prohibiting the execution of the mentally retarded, the Fifth Circuit has held that a Texas death row inmate who may be retarded cannot raise…

  13. NSA and Bush’s Illegal Eavesdropping

    When President Bush directed the National Security Agency to secretly eavesdrop on American citizens, he transferred an authority previously under the purview of the Justice Department to the Defense Department and bypassed the very laws put in place t…

  14. NSA and Bush’s Illegal Eavesdropping

    When President Bush directed the National Security Agency to secretly eavesdrop on American citizens, he transferred an authority previously under the purview of the Justice Department to the Defense Department and bypassed the very laws put in place t…

  15. anonymouslawyer says:

    In considering the Article II question, I would think great weight would be given to the view of the Foreign Intelligence Court of Review, which stated (albeit in dicta) that:

    “The Truong court, 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. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. 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 re Sealed Case, 310 F.3d 717, 742 (FICR 2002). Perhaps the argument is not as dubious as you suggest?

  16. The Security Threat of Unchecked Presidential Power

    This past Thursday, the New York Times exposed the most significant violation of federal surveillance law in the post-Watergate era. President Bush secretly authorized the National Security Agency to engage in domestic spying, wiretapping thousands of …

  17. The Security Threat of Unchecked Presidential Power

    This past Thursday, the New York Times exposed the most significant violation of federal surveillance law in the post-Watergate era. President Bush secretly authorized the National Security Agency to engage in domestic spying, wiretapping thousands of …

  18. Real Legal Analysis

    So I tried my hand at some amatuer legal analysis when the president’s spying analysis came out but now I think it is time we heard from some real professionals. While it does seem the claim that Bush’s spying orders violated the 4th ammend…

  19. What exactly is the NSA up to?

    The NSA is using technology and techniques similar to what Google uses in Gmail. With Gmail, Google uses content extraction to scan an email and obtain the “concepts” of the email. Google then displays ads on the page related to those conc…

  20. Re: NSA Spied on UN Diplomats in Push for Invasion of Iraq

    <<So if you think your smarter than this guy>Robert F. Turner co-founder of t…

  21. Andrew says:

    I realize that I’m a bit late for this discussion, but, wasn’t FISA ammended under article II of the Patriot Act to make it more lenient in order to deal with what were considered imminent threats to national security?