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
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About Those “Illegal” Wiretaps
January 12th, 2006 10:33 pm

While the MSM is beating the dead horse of Democrat calls for Congressional hearings and investigations into the NSA wiretap program, they are completely ignoring a significant development in the world of wiretapping.

Italian authorities recently announced that they had used wiretaps to uncover the conspiracy to conduct a series of major attacks inside the U.S.

Italian Interior Minister Giuseppe Pisanu said the planned attacks would have targeted stadiums, ships and railway stations, and the terrorists’ goal, he said, was to exceed the devastation caused by 9/11.

Italian authorities stepped up their internal surveillance programs after July’s terrorist bombings in London. Their domestic wiretaps picked up phone conversations by Algerian Yamine Bouhrama that discussed terrorist attacks in Italy and abroad.

Of course, this wasn’t the first time Italy successfully used wiretapping to catch terrorists plotting mayhem.

Now just imagine what we might miss if Democrats get their way on this issue.

Posted by TexasRainmaker | (7) Comments
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About That AP/Ipsos Poll
January 11th, 2006 6:49 am

The latest AP/Ipsos poll is entitled, “Americans Want Warrant for Spying“:

A majority of Americans want the Bush administration to get court approval before eavesdropping on people inside the United States, even if those calls might involve suspected terrorists, an AP-Ipsos poll shows.

So the majority of Americans really are opposed to the NSA program afterall? The poll showing that 64% of Americans favored it were just plain wrong? Not exactly.

This is another example of “get the results you want by polling those who agree with your agenda”. The sample for the latest AP/Ipsos poll had 52% Democrats and only 40% Republicans. Yeah, that’s not going to skew the results.

The headline should read, “Democrats oppose Bush administration at every turn”. But “truth” is only a requirement in advertising.

Posted by TexasRainmaker | (0) Comments
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Americans Favor the NSA Program
December 28th, 2005 4:12 pm

According to Rasmussen.

Sixty-four percent (64%) of Americans believe the National Security Agency (NSA) should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States. A Rasmussen Reports survey found that just 23% disagree.

I’m not big on polls, but I know many on the Left rely on them heavily to decide how they will think about an issue today. This one might leave a mark. Even when they break down the results by party affiliation, a majority of Republicans, Democrats and Independents alike “believe the NSA should be allowed to listen in on conversations between terror suspects and people living in the United States”.

Welcome to the real mainstream.

Posted by TexasRainmaker | (1) Comment
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It’s the only logical conclusion that can be made when the same liberals who had a hissyfit about the Plame non-story are now praising the New York Times for actually leaking highly classified information about an NSA program aimed at combatting terrorism… a leak that may now aid the very terrorists this Administration is trying to thwart.

Defense lawyers in some of the country’s biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.

“Tied to Al Qaeda”… get it? These guys are on the same mission the 19 hijackers were on… to kill you, me and the rest of your family and friends in the most spectacular way possible. And now liberals are praising the New York Times for the “scoop” that may well pave the way for these admitted terrorists to walk freely out of lockup and back into our neighborhoods… undoubtedly to finish what they had started.

Government officials, in defending the value of the security agency’s surveillance program, have said in interviews that it played a critical part in at least two cases that led to the convictions of Qaeda associates, Iyman Faris of Ohio, who admitted taking part in a failed plot to bring down the Brooklyn Bridge

Someone asked me in an email, “How would you react if Clinton was illegally wiretapping Americans?” First, I’d refer the emailer to the case of Alexander et al. v. FBI, et. al. in which the Clintons were conducting surveillance on Americans. Then, I’d make a comparison of the two administrations’ actions… Bush snooping on terrorists plotting to attack the U.S. and Clinton snooping on political opponents.

It’s funny to watch liberals switch gears on how they react to the leaking of classified information based solely on how it might affect the Bush administration. In the Plame case, they were outraged about the mere fact classified information was allegedly leaked because the leaking of said information potentially damaged the Bush administration. Now, the liberals could care less about how and why highly classified information has been leaked, because the information itself may potentially damage the Bush administration.

Don’t forget the Washington Post leaking information on a covert prison system setup by the CIA as “a central element in the CIA’s unconventional war on terrorism”. Didn’t hear liberals calling for an investigation into that leak. Instead we heard liberals decrying the existence of such prisons. They enjoyed seeing a leak like this and exploited it for every political point they could score… to hell with fighting terrorists.

Now the AP is publishing details of “extraordinary renditions”… an operation the journalist admits is a “highly classified practice“. Are there calls for a congressional inquiry into how and why this information was leaked, or the damage the leak may cause? Of course not. Like the WaPo story, they were happy to see such classified information being spilled before the public as it gave them the ability to again posture politically upon the information. Screw the war on terror.

The liberal MSM even says this about the practice:

President Bush gave the CIA authority to conduct the now-controversial operations…

Now-controversial”? So they weren’t controversial before… say, oh…. I don’t know… when the procedure was developed by the CIA during the Clinton administration?

I guess this is just the newest strategy from the liberal elite that make up MSM. Bored with simply trying to dredge up basic political scandals, they’re now focused on selling out every national secret and military strategy in hopes of scoring some points on the political front.

The bias is becoming more transparent everyday.

UPDATE: Michelle has yet another example of MSM aiding terrorist organizations and sums it up perfectly: “If only these MSM blabbermouths invested as much energy exposing the terrorist sympathies and connections of CAIR as they did in exposing every last Bush administration counterterrorism measure to protect American lives, they’d fully understand the damage they have done.” Exactly!

UPDATE 2: The New York Post gets it.

Posted by TexasRainmaker | (0) Comments
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Because It’s Bush
December 21st, 2005 12:59 pm
…is the only reason the warrantless spying non-story is a “scandal“. Think I’m wrong?

Where were the calls for investigations when Bill Clinton was authorizing warrantless spying?

Where were they when Jimmy Carter was authorizing warrantless spying?

Liberals again proving they have one standard for their own and another standard for everyone else.

Update: Heck, Clinton even “expanded the use of warrantless searches to entirely domestic situations with no foreign intelligence value whatsoever.” Have you heard a peep about that until now?

Update 2: Oh, and about that judge that stepped down today who will certainly be granted sainthood by the DNC, seems he was just another liberal activist Clinton appointee anyway. More non-story to pile on the existing non-story.

Update 3: It is interesting that all those folks who rejoiced in the Plame “scandal” are so silent about this story in which a classified program designed to track terrorists was leaked, in detail, to the press. A program which most in the legal community are saying is completely within the government’s legal authority to conduct.

Posted by TexasRainmaker | (0) Comments
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