Texas Rainmaker
The Justice Department’s legal memorandum on the NSA’s warrantless wiretapping program, scheduled for release later, has been leaked to RawStory. (hat tip: Confederate Yankee)

The Justice Department has concluded that

the NSA activities are lawful and consistent with civil liberties.”

They recognize that Congress has authorized the President, through the AUMF, to:

“use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” of September 11th in order to prevent “any future acts of international terrorism against the United States.”

In addition to the statutory authority, the DOJ report acknowledges case law supporting their finding as well:

“The Supreme Court�s interpretation of the AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), confirms that Congress in the AUMF gave its express approval to the military conflict against al Qaeda and its allies and thereby to the President�s use of all traditional and accepted incidents of force in this current military conflict�including warrantless electronic surveillance to intercept enemy communications both at home and abroad.”

And what about FISA? The DOJ finds:

“The NSA activities are consistent with the preexisting statutory framework generally applicable to the interception of communications in the United States�the Foreign Intelligence Surveillance Act (”FISA”)”

But FISA generally requires a warrant. A point Al Gore was quick to use while publicly declaring our President a criminal for authorizing the surveillance program.

FISA “prohibit[s] any person from intentionally “engag[ing] . . . in electronic surveillance under color of law except as authorized by statute“.

In this case, the DOJ concludes, the AUMF, as applied in the Hamdi case is just such an exceptional statute. They also note that the “history and tradition of armed conflict” may play a role in this interpretation. An element the out-of-power Left would rather ignore when making their argument.

In fact, the report concludes that FISA might even be unconstitutional as applied in this situation:

Even if there were ambiguity about whether FISA, read together with the AUMF, permits the President to authorize the NSA activities, the canon of constitutional avoidance requires reading these statutes in harmony to overcome any restrictions in FISA and Title III, at least as they might otherwise apply to the congressionally authorized armed conflict with al Qaeda.

Indeed, were FISA and Title III interpreted to impede the President�s ability to use the traditional tool of electronic surveillance to detect and prevent future attacks by a declared enemy that has already struck at the homeland and is engaged in ongoing operations against the United States, the constitutionality of FISA, as applied to that situation, would be called into very serious doubt.

In fact, if this difficult constitutional question had to be addressed, FISA would be unconstitutional as applied to this narrow context. Importantly, the FISA Court of Review itself recognized just three years ago that the President retains constitutional authority to conduct foreign surveillance apart from the FISA framework, and the President is certainly entitled, at a minimum, to rely on that judicial interpretation of the Constitution and FISA.

And as far as “unreasonable search and seizure” goes:

Finally, the NSA activities fully comply with the requirements of the Fourth Amendment. The interception of communications described by the President falls within a well-established exception to the warrant requirement and satisfies the Fourth Amendment�s fundamental requirement of reasonableness. The NSA activities are thus constitutionally permissible and fully protective of civil liberties.

So despite the liberal mantra of “eroding civil liberties” the DOJ is specific in pointing out that a time of war may allow Executive actions (”broad authority to use military force”) that wouldn’t necessarily be allowed in times of peace.

I think the DOJ hits on a very important element of this whole program. It is not designed to snoop on political rivals or those who simply disagree with the administration’s policies… it is designed to “prevent further catastrophic attacks” by “a declared enemy that has already struck at the homeland and is engaged in ongoing operations against the United States“. An enemy who fully understands our freedoms (such freedoms they themselves do not afford others) and seeks to exploit them as a military strategy.

But does such a program really protect us? Let’s not forget that wiretaps and eavesdropping on terror suspects netted Italy a handful of al-Qaeda operatives plotting “to conduct a series of major attacks inside the U.S.” that would “exceed the devastation caused by 9/11.”

I’d say yes.

Posted by TexasRainmaker | (0) Comments
Trusted Traveler Program
October 10th, 2005 11:19 pm

Airports, security companies and the federal government are mobilizing to launch the first nationwide program that speeds “trusted travelers” through airport security. I look forward to this as I was part of the TSA Registered Traveler Pilot Program. That pilot program ended September 30th so TSA could “evaluate the overall program and anticipates making an announcement about an ongoing Registered Traveler Program” (according to the email I received). This is a great program. From registration through implementation, it was easy, painless and quick. And it truly paid off for those of us who travel often. If you get a chance to join, it’s well worth the nominal fee they’re going to charge.

One example of the payoff was last March during Spring Break. I arrived at the airport (Houston Intercontinental) to find even the Onepass Elite (Continental airlines’ frequent flyer program) lines backed up and tales of hour-long waits to get through security. (One problem with most airports’ Elite lines is that even after you show your boarding pass and ID, you get shuffled into the “general population” metal detectors. With the RTP, you have a dedicated line and dedicated metal detector. It took about 11 minutes from the time I entered the airport to the time I got to my gate.

The registration process was completely painless, too. I was sent an email invitation, asked to fill out a document authorizing a full background check and given an access card (similar to an ATM card). I happened to have a flight one morning during their registration process, so I showed up 15 minutes early and got right through the registraiton process without fail. I had to insert my access card and the machine registered my fingerprints and retinal scans. About 6 weeks later, I received notification that I had been accepted.

Using the program was simple. I generally check in for my flight online, so when I get to the airport, I’d just walk right up to the RTP line, show my boarding pass and ID, put my card in the machine and let it scan either my fingerprints or retinas (which took about 15 seconds). When it completed, I would run my bag through the scanner and walk straight to my gate. It never took more than 15 minutes from my car to the gate.

The only downside to the pilot program was that it was only good for one airport. So I couldn’t use my card at any of the other airports in the pilot. But the new “trusted traveler” program aims to issue a set of standard guidelines, so travellers can enjoy the benefits at any participating airport.

Lots of upsides.

TSA’s former acting deputy administrator Thomas Blank said in June that registered travelers might not have to remove their coats and shoes or take laptops out of cases when they go through metal detectors. Blank said the fee would be $30 to $50.

The TSA says Registered Traveler can improve security by allowing airport screeners to focus on passengers who have not cleared background checks.

I just have two words… hurry up.
Posted by TexasRainmaker | (1) Comment

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