I’ve posted little on the NSA story, mostly because of time constraints and because of my pure fury at those in the NSA who would leak classified material to the press and at a press who would publish the material.
I’ve read the stories fronted by the New York Times and funneled by some unknown…person(s) with a Top Secret compartmentalized clearance who is sworn and signed to hold secret his/her government’s means of reconnoitering its enemies. Every new revelation leaves this Cold Warrior—who, once upon a time, swore to and signed the exact same agreements--more disgusted and angry.
The majority of the Big Media, a goodly portion of the Democrats and not a small portion of the government in Washington hate George W. Bush; if we doubted that before, there’s no doubt about that now. But for the hate to be so pathological that the haters would seek to thwart every one of the president’s endeavors, including classified NSA programs designed to keep another 9/11 from happening, leaves me flabbergasted.
The argument as to whether the Executive Branch-approved NSA program is legal is raging still all over the Internet and shows no sign of ending. Powerline has the best list of judicial precedent underlying the program’s legality and concludes that
The federal appellate courts have unanimously held that the President has the inherent constitutional authority to order warrantless searches for purposes of gathering foreign intelligence information, which includes information about terrorist threats. Furthermore, since this power is derived from Article II of the Constitution, the FISA Review Court has specifically recognized that it cannot be taken away or limited by Congressional action.Read this also.
That being the case, the NSA intercept program, which consists of warrantless electronic intercepts for purposes of foreign intelligence gathering, is legal.
It’s worth noting that all of the cases cited above involved warrantless searches inside the United States. The NSA program, in contrast, involves international communications only, and the intercepts take place at least in part, and perhaps wholly, outside the United States. Thus, the NSA case is even clearer than the cases that have already upheld Presidential power.
Yes, the NSA monitors foreign communications. No hot news flash there, especially for those laymen who’ve read The Puzzle Palace. However, it is most assuredly illegal for a person with intimate knowledge of any specific NSA program to disclose the details of (even the existence of) that program to those who are unauthorized to receive that information.
1. A person without the formalized security clearance under which the program falls, and
2. A person without a ‘need to know’ about the existence and or the details of said program.
These would indeed include the New York Times.
Why would the person who leaked the existence of this NSA program do so? What do they believe?
That the program is a violation of the Fourth Amendment to the US Constitution:
The right of the people to be secure in their persons, houses, papers, and effects [this part has long been interpreted to include communications] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Does any part of the Constitution apply to foreigners located outside of the United States? Of course not. But what of those inside the US with whom these foreigners are communicating? That brings us back to the word ‘unreasonable.’ What of reasonable searches and seizures? Is it ever ‘reasonable’ for the federal government to conduct a warrantless ‘search and seizure’ on a US person, or rather surveillance of his/her communications? The Fourth Amendment implies that it is; otherwise why insert the word ‘unreasonable’ into it all?
Repeat, foreign operating outside of the US do not fall under the Fourth Amendment. When they are contacting people in the US of whatever nationality to coordinate plans for terrorist attacks on the US, it is reasonable to search (listen to) the conversation(s) between them. Sorry, but that’s my semi-learned take on the program’s legality. Apparently, all of the federal appellate courts' presumably learned opinions conclude at the exact same point.
So what will happen now?
Again, contemplate the magnitude of this: the legal legitimacy of what once was a Top Secret compartmentalized matter--its effectiveness dependant upon its confidentiality, having been designed to frustrate the plans of terrorists who would see another deadly attack on this country--is now being hashed out in the court of public opinion—informed and otherwise.
I predict that after every aspect of this matter is sliced to a fare-thee-well in the Senate, in the House and in the media—both old and new—its legality will be confirmed. During this evisceration of one of the means to keep Americans safe, members of the Senate, the House and the Big Media will get more opportunities to trumpet their goodwill toward the American public: “we are just trying to protect you from the evil plans of that evil George W. Bush, because even if he didn’t have his creepy, geeky NSA minions spying on you and your Grandma Ethel, you know he was thinking about it. That’s just how evil he is. EVILLLLLL!!!!” The program will be rendered useless (as will any other that uses similar means) and it will be scrapped (assuming it hasn’t been already), but it will be deemed clean and pure at its postmortem. Some government whistle-blower for this program that will have turned out to be totally legal and previously quite effective until its existence was broadcast to “our” enemies will be cast as the Grand Hero who saved America’s civil liberties from this “evil man.”
My hat's off to you, New York Times and to you, anonymous government official(s); certainly you’re just trying to ensure that my civil liberties are protected. I’ll try to be comforted by that when my family is dead.
Tom at Just One Minute knows that they won’t stop trying to destroy America to save it.
UPDATE: DC at Toad Time has some excellent thoughts on the subject.