XDA

Many of the lefty news guys are trying their hand at playing a lawyer on TV, or on the radio (I just listened to Hugh Hewitt smack down Jonathan Alter from Newsweek for not reading the recent case on the issue, et al.) regarding warrantless interception of foreign phone calls by the NSA. Most of them go wrong from the beginning-- from the mistaken starting point that a warrantless search is an illegal search. Wrong! Silly, School-Boy's Book of the Fourth Amendment level wrong. The Fourth Amendment only protects us (in our persons, houses, papers and effects) from unreasonable searches and seizures. In a completely different clause it says that warrants shall issue only for probable cause. There is case law that says a warrant (if well supported) will make the search it allows reasonable, however, there are plenty of exceptions to what is called, merely for convenience, the warrant requirement. The most famous one, the one even the news guys might even know about, is exigent circumstances. No warrant is required where there is no practical way to get one in time. Another exception, according to In re: Sealed Case No. 02:001 is the ability of the President to act as a commander in chief of the Armed Forces of the United States. Money quote for Sealed Case:

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. 26 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.

When asked previously (in 1972) to comment on this, in the Supreme Court in the so-called Keith case, took a pass: "We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents." United States v. United States District Court, 407 U.S. at 321- 22, but the Court then, in footnote 20 (much of the good stuff in a case is in the footnotes), said:

For the view that warrantless surveillance, though impermissible in domestic security cases, may be constitutional where foreign powers are involved, see United States v. Smith, 321 F. Supp. 424, 425-426 (CD Cal. 1971); and American Bar Association Project on Standards for Criminal Justice, Electronic Surveillance 120, 121 (Approved Draft 1971, and Feb. 1971 Supp. 11). See also United States v. Clay. 430 F.2d 165 (CA5 1970).

So, based on cases (cited and quoted from above) by the Supreme Court of the United States and by the United States Foreign Intelligence Surveillance Court of Review (which reviews the FISA court) there is nothing unreasonable about warrantless listening in on the phone calls from known al Qaeda operatives to persons in the United States especially after al Qaeda declared war on us in 1998. I'm sorry if one half of the conversation is by someone in America who may well be an American. If we could stop listening when the American is speaking without doing damage to our understanding of the conversation, perhaps we could try; but we all know that wouldn't work because then we wouldn't know what the al Qaeda guy was talking about if all we heard was half the conversation. That there is an American on the line of a foreign call doesn't make listening in unreasonable, especially when the person he or she is talking to is with al Qaeda. I believe it would be unreasonable to say the President can't try to discover what our self-declared enemy is planning. But of course I would say that, I'm a Republican. Here's the short version of what the President is doing at the NSA: Not unreasonable, not illegal, but in fact perfectly legal, reasonable, necessary and prudent. No warrant is required for reasonable searches.

On the other hand, I have heard some other people, news types again, talking about a civil suit against our President by the Americans who had their telephone conversation with Uncle Ali in Karachi , for example, listened in on. Well, if precedent is any guide, these Americans, if any are ever identified, would get their case bounced out well before trial. As Diomedes pointed out in one of his first posts here, being surveiled by the government whose agents then create a file on you (and only that--there is no case brought against you) gives you no standing to sue the government. See Laird v. Tatum, 408 U. S. 1 (1972) whose money quote follows:

The decisions in these [previously cited First Amendment] cases fully recognize that governmental action may be subject to constitutional challenge even though it has only an indirect effect on the exercise of First Amendment rights. At the same time, however, these decisions have in no way eroded the

"established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action . . . ." Ex parte Levitt, 302 U.S. 633, 634 (1937).

The [war protestors bringing the suit] do not meet this test; their claim, simply stated, is that they disagree with the judgments made by the Executive Branch with respect to the type and amount of information the Army needs and that the very existence of the Army's data-gathering system produces a constitutionally impermissible chilling effect upon the exercise of their First Amendment rights. That alleged "chilling" effect may perhaps be seen as arising from respondents' very perception of the system as inappropriate to the Army's role under our form of government, or as arising from respondents' beliefs that it is inherently dangerous for the military to be concerned with activities in the civilian sector, or as arising from respondents' less generalized yet speculative apprehensiveness that the Army may at some future date misuse the information in some way that would cause direct harm to respondents. Allegations of a subjective "chill" are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm; "the federal courts established pursuant to Article III of the Constitution do not render advisory opinions." United Public Workers v. Mitchell, 330 U.S. 75, 89 (1947).

So, no crime, no impeachment, no lawsuits. Bush's second term is turning out to be very different from his predecessor after all.