The Volokh Conspiracy

The [Justice Department] audit examined a selection of cases to see how the security agency was running the program. Among other things, it looked at how agency officials went about determining that they had probable cause to believe that people in the United States, including American citizens, had sufficient ties to Al Qaeda to justify eavesdropping on their phone calls and e-mail messages without a court warrant.

I do think the leaks are detrimental to our national security however.

We picture a cave somewhere in Pakistan. Osama picks rat meat off a stick when countless number twos rush in screaming "Good God man, no warrants! Shut it all down!"

Well, I just read Article II of the Constitution and I have to say that I think Polaris is definitely right. You see it's pretty clear when you read Article II real closely that it give the President the unilateral power to revoke a person's citizenship -- and status as a "United States person" -- if he determines, in his sole discretion, that the person is suspected of terrorism. Further, Article II provides that the President does not need to tell anyone about it. All he has to do is determine it.

It's pretty clear, just read Article II very, very closely --- you will see it. Only activist liberal judges with their "living constitution" and "penumbras" would come up with some absurd interpretation of the Constitution that precludes the President from exercising one of his express Article II powers, such as the ones I just mentioned. I mean it is clearly in the Constitution -- just read it. Plain meaning, baby. It's there.

For those elitist lawyers reading this, don't bring up the the 14th Amendment and try to use your activist judgifying powers. That stuff only works on the Micheal Moore crowd. Those of us in the know who studied at the Federalist Society's John Yoo School of National Security law know that the 14th's citizenship clause did not affect this unilateral power because, you see, the Framers of the 14th would have said so if they meant to repeal such an important Presidential power. Anyone who would think that the 14th Amendment repealed such an express and fundamental power of the executive must be looking for penumbras and emanations in the living constitution.

In 1801(f)(1), you must have a reasonable expectation of privacy. As you know that has a very specific set of criteria which are NOT met for foreign communications. As Tom Holsinger stated in an earler thread, because foreign governments do not protect communications crossing their boundries in any way (and in fact listen to them routinely), no reasonable expectation of privacy exists if either end is outside the US.

In 1801(f)(2), the subparagraph only applies to intercepts physically done INSIDE the US which is totally meaningless for the NSA and for modern telecommunications.

Everything was perfectly legal, and didn't violate FISA or the Fourth Amendment -- in fact, there was no legal restraint at all on intercepting these communications. That's why the President went out of his way to personally review and approve the program every 45 days. He was being extra solicitous of the privacy interests -- legally baseless though they were -- of all the 100%-proven-beyond-a-reasonable-doubt Al-Qaeda operatives inside the US.

Attacks on electronic surveillance of foreign communications are flat out laughable. NONE of the people doing so have at all considered the applicability of foreign law here, or the intelligence agreements we have with foreign governments.

Foreign commmunications - those to and from the U.S. - have two ends, here and in some foreign country. 50 USC 1801(f) requires a "reasonable expectation of privacy" for there to be any warrant requirement, so it is necessary to consider the law of the foreign countries involved, not ours alone, in determining whether there is a privacy expectation.

And there isn't. Foreign governments can SECRETLY monitor phone calls and email to their countries from other countries. I am not aware of ANY foreign country whose government is subject to any check whatever on secret monitoring of phone and email traffic involving other countries. Some have laws creating, for purposes of 50 USC 1801(f), reasonable expectations of privacy for phone calls which take place entirely within their national boundaries, but none have any restrictions on monitoring of foreign (for them) communications.

Furthermore foreign governments can grant other governments the right to monitor the same communications, and many have. With us. The United States government has intelligence agreements with lots and lots of countries which expressly allow the U.S. government to monitor all their foreign communications, and in many instances their domestic traffic as well.

The neat thing about 50 USC 1801(f) is that it defines "electronic surveillance" as only that surveillance of communications in which there is a reasonable expectation of privacy (provided the surveillance takes place outside the U.S., which is almost always the case). If there is no privacy expectation, listening to 'em is NOT "electronic surveillance" and so not at all subject to FISA.

FISA has a great big built-in loophole for foreign communications - those between the U.S. and other countries. It does not in any way limit the government from monitoring those communications. It does not apply at all to foreign communications.

Those here who continue to contend that FISA applies to foreign communications are wasting their time, and ours.

Phone calls and emails which originate and terminate in the U.S. are domestic communications and so subject to FISA's warrant requirement for surveillance, albeit with many exceptions.

Bush stressed that the surveillance involved telephone calls from "a few numbers" outside the United States by people associated with al-Qaida, the terrorist organization that plotted the Sept. 11 attacks. The White House later clarified Bush's remarks, saying he meant to say calls going to and originating from the U.S. were being monitored.

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society.