There’s been a Patriot Act filibuster, a Presidential address, and a press conference since the New York Times revealed that the President ordered the NSA to engage in domestic spying. Orin Kerr has a long analysis of the potential legal arguments that the Administration can put forth and how likely they are to persuade a court. It’s a good, well-researched post, but takes no opinion on the propriety of the actions.
To summarize his analysis, the actions taken by the President may be part of the inherent Article II powers, not be implicated under the Fourth Amendment under the so-called “national security exception” ( the “border search exception” argument is bullshit; a phone call is not a border.), and probably violated the Foreign Intelligence Surveillance Act (FISA) statute, 50 U.S.C. 1801-11. There’s also the bullshit argument that the Congressional Authorization of Military Force magically trumps all of our laws, but (a) that’s too Orwellian for words and (b) wiretaps are not force. The colorable arguments that the Administration can make might keep impeachment at bay, by showing that the President was acting in “good faith” based on competent legal advice.
All well and good, but let’s start looking at the suspiciously Bavarian forest, instead of examining tree bark. The Fourth Amendment requires probable cause before warrants can be issued. FISA courts keep the argument for probable cause secret in order to not tip off the foreign power being investigated. However, FISA courts still require the government to show (retroactively in case of emergency) probable cause that “the target of the electronic surveillance is a foreign power or an agent of a foreign power,” with the specific limitation “[p]rovided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.” See 50 U.S.C. 1805(a)(3)(A) for all the statutory language.
Since the President specifically chose not to use FISA, it’s likely that he’s spying on people for engaging in First Amendment protected private speech. While you might be able to get a FISA wiretap for someone being called by Khalid Sheik Mohammed, there aren’t many courts who would give a secret wiretap for everybody in his cell phone, or everybody in their cell phone, or so on, in an ever-expanding and attenuated net. However, this is the kind of eavesdropping that the NSA specializes in. Connect the dots.
As an aside, I’m wondering how many bizarre Administration policies Professor Kerr can
defend try to explain before his head explodes. Similarly, for those Administration apologists, I ask you this: “What violation of the Constitution and/or the law would be sufficient for you to impeach him?”
There was a previous President who felt justified in conducting warrantless wiretaps of people and organizations in America. Here’s hoping that the New York Times will play the role of the Washington Post this time around. When the President abuses his power, he must go. Sic semper tyrannis.
Previously: Bush Curses the Constitution Again