The Knee Jerk Times...

the NSA and the Law...

The following longish quote is from a John Hinderaker piece at the Powerline Blog. I recommend reading the whole thing, but the quite (long though it may be) is a good summary.


If the Times is happy with what the administration is doing, but just wants it to follow a procedure that will yield exactly the same result with virtually no inconvenience, why is the paper so hysterical?


The answer is that the Times purports to be making a technical legal argument. Its point is that following an easy, foolproof procedure will make the necessary surveillance legal instead of illegal.


As a lawyer, I can relate to technical legal arguments. But, if you're going to rely on a legal argument, isn't it necessary to actually...make a legal argument? One would think so, but the Times can't be bothered. Instead, it simply denounces the administration's program because it "violates the law as currently written." But does it? When lawyers make technical legal arguments, we generally cite case law. Like, for example, United States v. Clay, 430 F.2d 165 (5th Cir. 1970), in which the court held that federal statutes prohibiting wiretapping do not "[forbid] he President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest." That seems obviously pertinent; what does the Times have to say about the Clay case? Nothing. It doesn't mention it.


Another relevant case is United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), where the court held that no judicial warrant was necessary where "surveillances ... were 'conducted and maintained solely for the purpose of gathering foreign intelligence information.'" Butenko blows a giant hole in the Times' legal theory. What does the Times have to say about the Butenko case? Nothing. It doesn't mention it.


Then there's United States v. Truong, 629 F.2d 908 (4th Cir. 1980), where the court sustained the federal government's position, which it summarized as follows:
In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.


The court explained why the President has the inherent constitutional authority to order warrantless electronic surveillance:


For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], "unduly frustrate" the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.


If the 4th Circuit Court of Appeals was right, then the New York Times is wrong. So, surely the Times must have some persuasive rebuttal to the Truong decision in support of its technical legal argument? No. The Times never refers to Truong.


United States v. Duggan, 743 F.2d 59 (2nd Cir. 1984), was a terrorism case in which the court, among other rulings, upheld the constitutionality of the Foreign Intelligence Surveillance Act (FISA). The court wrote: Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.


A damning summary. Surely the Times has a rejoinder to the court's statement that the universal weight of authority is against the paper's position? Nope.