Post Twenty-six: Regarding the wiretaps
Wanted to share the following concerning this whole uproar regarding the warrantless wiretaps that have apparently been going on (shamelessly stolen from www.powerlineblog.com):
I've been working on and off on the legal issues surrounding the NSA's interception of communications directed to al Qaeda members overseas, some of which originated in the United States. I haven't had time yet to write up a full analysis of the case law. For now, let me just say that the question does not appear to be close. Under all existing authorities, the NSA program, as we understand the facts, was legal.
For now, let me simply quote the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001:
The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], 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. *** 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.
And those are cases that deal with electronic intercepts inside the United States. A fortiori, intercepts outside the United States that coincidentally sweep in messages sent from America would seem to be obviously within the President's inherent Article II powers. So far, I have found no authority to the contrary.
I've stated elsewhere that the whole issue is a big "meh" to me. I don't care if the government is eavesdropping on suspected terrorists. Would I have a problem if the same government was eavesdropping on every conversation I had? Hell, yes. But any concern that this intrusion is somewhere on the horizon is a "slippery slope" argument, a logical fallacy.
To paraphrase Stripes, and at the risk of drawing the ire of paranoid civil libertarians, all of these Francises raising holy hell about this need to lighten up. Take a step back, and try to figure out whose lives this is going to inconvenience: not yours and not anyone you know, unless you happen to be a terrorist or an attorney who represents terrorists. Get over yourself.
I've been working on and off on the legal issues surrounding the NSA's interception of communications directed to al Qaeda members overseas, some of which originated in the United States. I haven't had time yet to write up a full analysis of the case law. For now, let me just say that the question does not appear to be close. Under all existing authorities, the NSA program, as we understand the facts, was legal.
For now, let me simply quote the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001:
The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], 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. *** 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.
And those are cases that deal with electronic intercepts inside the United States. A fortiori, intercepts outside the United States that coincidentally sweep in messages sent from America would seem to be obviously within the President's inherent Article II powers. So far, I have found no authority to the contrary.
I've stated elsewhere that the whole issue is a big "meh" to me. I don't care if the government is eavesdropping on suspected terrorists. Would I have a problem if the same government was eavesdropping on every conversation I had? Hell, yes. But any concern that this intrusion is somewhere on the horizon is a "slippery slope" argument, a logical fallacy.
To paraphrase Stripes, and at the risk of drawing the ire of paranoid civil libertarians, all of these Francises raising holy hell about this need to lighten up. Take a step back, and try to figure out whose lives this is going to inconvenience: not yours and not anyone you know, unless you happen to be a terrorist or an attorney who represents terrorists. Get over yourself.
posted by Juggernaut at
5:21 PM
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