Mudcat Café message #1866895 The Mudcat Café TM
Thread #91711   Message #1866895
Posted By: Old Guy
23-Oct-06 - 10:24 PM
Thread Name: BS: Spying, Secrecy, and Presidential Power
Subject: RE: BS: Spying, Secrecy, and Presidential Power
LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE
NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT

"The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."

...Amending the Foreign Intelligence Surveillance Act: Hearings Before the House Permanent Select Comm. on Intelligence,103d Cong. 2d Sess. 61 (1994) (statement of Deputy Attorney General Jamie S. Gorelick) “The Department of Justice believes, and the case law supports, that the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes ”...

...The courts uniformly have approved this longstanding Executive Branch practice. Indeed, every federal appellate court to rule on the question has concluded that, even in peacetime, the President has inherent constitutional authority, consistent with the Fourth
Amendment, to conduct searches for foreign intelligence purposes without securing a judicial warrant...

..All the other courts to have decided the issue have held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information...

...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.”...

...From a constitutional standpoint, foreign intelligence surveillance such as the NSA activities differs fundamentally from the domestic security surveillance at issue...

...As the Fourth Circuit observed, the President has uniquely strong constitutional powers in matters pertaining to foreign affairs and national security. “Perhaps most crucially, the executive branch
not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs.” ...

... The present circumstances that support recognition of the President’s inherent constitutional authority to conduct the NSA activities are considerably stronger than were the circumstances at issue in the earlier courts of appeals cases that recognized this power. ...

...Among the President’s most basic constitutional duties is the duty to protect the Nation from armed attack. The Constitution gives him all necessary authority to fulfill that responsibility....

...It is important to understand that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the President in carrying
out his foreign intelligence responsibilities...

...We believe that the warrant clause of the Fourth Amendment is inapplicable to such foreign intelligence searches.”); see also In re
Sealed Case, 310 F.3d 745. The object of foreign intelligence collection is securing information necessary to protect the national security from the hostile designs of foreign powers like al Qaeda and affiliated terrorist organizations, including the possibility of another foreign attack on the United States. In foreign intelligence investigations, moreover, the targets of surveillance often are agents of foreign powers, including international terrorist groups, who may be specially trained in concealing their activities and whose activities may be particularly difficult to detect.
The Executive requires a greater degree of flexibility in this field to respond with speed and absolute secrecy to the ever-changing array of foreign threats faced by the Nation.
In particular, the NSA activities are undertaken to prevent further devastating attacks on our Nation, and they serve the highest government purpose through means other than traditional law enforcement. The NSA activities are designed to enable the Government to act quickly and flexibly (and with secrecy) to find agents of al Qaeda and its affiliates an international terrorist group which has already demonstrated a capability to infiltrate American communities
without being detected"in time to disrupt future terrorist attacks against the United States. As explained by the Foreign Intelligence Surveillance Court of Review, the nature of the “emergency” posed by al Qaeda “takes the matter out of the realm of ordinary crime control.” In re Sealed Case, 310 F.3d at 746. Thus, under the “special needs” doctrine, no warrant is required by the Fourth Amendment for the NSA activities...

Exerpted from U.S. Department of Justice
Washington, D.C. 20530
January 19, 2006
http://fl1.findlaw.com/news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf