Furhter On The NSA Story

Last night, I put up a fairly extensive post regarding the president's power in regard to FISA, and his powers during a time of war. The Constitution upholds his powers, with are near absolute, when this nation is at war.To better explain this, I'm citing the US Code pertaining to FISA below. (emphasis mine)

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—

(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and

(D) the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.

(3) The Attorney General shall immediately transmit under seal to the court established under section 1803 (a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence, and shall remain sealed unless—

(A) an application for a court order with respect to the surveillance is made under sections 1801 (h)(4) and 1804 of this title; or
(B) the certification is necessary to determine the legality of the surveillance under section 1806 (f) of this title.

(4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to—

(A) furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers; and
(B) maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain.
The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid.

(b) Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person.

Under FISA, it specifically states that there may be surveillance without a court order regarding a foreign power, or a foreign agent. As the people being surveiled under the NSA mandate would be considered foreign agent, there is no need at all to obtain a warrant. As I stated last night, as these people aren't US citizens, the Constitution's protections aren't open to them. I know it's not an easy for people to swallow that the NSA is running surveillance within the United States. However, we are aware that our enemies are within our borders, and they are plotting to harm us. The president is charged with protecting the nation, and is doing everything within his power--within the confines of the law--to do so. For the Democrats to throw a hissy fit, or anyone for that matter, simply shows that there are a lot of uneducated people out there in America.

It's not a hard concept to grasp if you're willing to do a bit of research. The last two days, Marcie and I have been posting regarding this issue. The research that we've done wasn't all that hard. It took going over court records, digging up laws, and going over presidential "precedent" (that being actions of past presidents accepted by the courts as permissable behavior) to look into the past uses of FISA, and whether or not it was ever carried out prior to now that there have been warrantless wiretaps. Needless to say, there are extensive cases revolving around this issue.

Each one states one of two things. Yes, we can place foreign agents and powers under surveillance utilizing communications technology (phones, cell-phones, and e-mails) without requesting a warrant through the FISC. If they are a US citizen a warrant must be obtained. The courts have held that unless it can be proven that the person to be placed under surveillance is a foreign agent and they are a citizen, a warrant must be obtained in compliance with the Fourth Amendment. But if they're not a citizen of the United States, we can freely, with presidential written authorization, place them under surveillance without said warrant.

A key reason for this sort of appraoch, obviously, is that we don't want them to know that we know who they are, or who they work for. In the case of placing al-Qaeda operatives, cell members, or enablers under surveillance, we want to know who they are, and what possible plans they may have BEFORE they strike. As has been pointed out in recent days, had the NSA program been in effect prior to 11 Sept. we might have been able to pick up on the hijackers in San Diego communicating with Afghanistan. The other reason why we're not going to go for a warrant is that it takes too much time, and jumps through too many hoops. The risk of leaking the warrant out, for such imminent threats, is too great.

I state this because I'd like to point to two media outlets that have been more than happy to publish stories that have broken national security secrets. The New York Times and the Washington Post have both published stories regarding our national security efforts to deal with the terrorist threat. No one really knows what goes on in a CIA "secret prison," yet there is plenty of speculation on them. The CIA obviously had to fly people to these prisons, and the Post had little conscience in publishing that story. The Times ran with the NSA story. Each story, were they to stand on their own, would not be as damaging as all three together.

Some on the Left will accuse Marcie or I of trying to protect the president. That is true, but we're specifically answering the charges. He didn't break the law. Further, the leaked stories may do minor damage to his political strength, but it does far more to the nation, as a whole. Those that are leaking this to the press, and the press which is printing it, remind me of the unilateral disarmament crowd in the 1980s: They are willing to do whatever it takes to achieve their goal of disarming this nation because they see this nation as evil, as an instigator of upheaval around the world. We are anything but conquerors, and desire only a peaceful world. Not so much for the world's sake as our own.

The real crime committed here was in regard to the release of this program. Whoever leaked the NSA program broke the law. This was reported as a "secret," "classified," "highly sensitive" program. The revelation of this program is devestating. At this point, the person who leaked this could, and should, be charged with treason. Regardless of his/her motives, USC 18, Section 2381 specifically states that giving aid and comfort to one's enemies is a crime; the revelation of this program could be construed as such. Will it? Only time will tell.

What is sickening about this is that the Democrats are going all out on this. They've pulled out the heavy guns, and they're leveling pretty serious charges at the president. The problem is, and there has to be an intelligent lawyer that they'll listen to that will tell them this, there is no crime. The president has broken no law (known at this point, but I doubt it), and there's no cause for public alarm. The targets of this surveillance are our enemies, not the average US citizen.

If the Democrats were smart, they'd drop this. To push ahead on this is a nightmare waiting to happen. And every day they lose their minds, the more the campaign ads for the GOP will grow showing them incapable of grasping even the smallest of concepts regarding national security. That will kill them time and again. That, and America's not stupid; we see the partisan attacks on the president, and how many have stuck (Bush: 100+ / Dems: 0). We're not happy with it because we know how much time is being wasted on these empty, useless attacks.

Publius II