January 19, 2006

Department of Justice: Warrantless Wiretaps Legal (original document and analysis)

The Department of Justice has backed the Bush Administration's claim that the President has inherent authority to listen to international phone calls with suspeced terrorists abroad. Raw Story broke the news earlier today by leaking the DoJ document which outlines the legal authority for the President to defend Americans at home from international terrorists.

A complete copy of the Department of Justice memorandum can be dowloaded here.

Thanks to Confederate Yankee who has comments on the document here. Jason also has comments here. I will be eager to see what others are saying about this memo.

The document is very legalistic. At the heart of it, though, is the assumption that the war against radical Islamists is a real war. If a real war then we must fight it like a war. Wiretapping, then, is a form of spying on our enemies. The normal rules do not apply in war.

The opposing side wishes to treat the global conflict we are engaged in as if it were a simple criminal matter. Wiretapping a terrorist is like wiretapping a drug lord and the normal rules apply.

A few highlights:

On September 11, 2001, the al Qaeda terrorist network launched the deadliest foreign attack on American soil in history. Al Qaeda’s leadership repeatedly has pledged to attack the United States again at a time of its choosing, and these terrorist organizations continue to pose a grave threat to the United States. In response to the September 11th attacks and the continuing threat, the President, with broad congressional approval, has acted to protect the Nation from another terrorist attack. In the immediate aftermath of September 11th, the President promised that “[w]e will direct every resource at our command—every means of diplomacy, every tool of intelligence, every tool of law enforcement, every financial influence, and every weapon of war—to the destruction of and to the defeat of the global terrorist network.” President Bush Address to a Joint Session of Congress (Sept. 20, 2001). The NSA activities are an indispensable aspect of this defense of the Nation. By targeting the international communications into and out of the United States of persons reasonably believed to be linked to al Qaeda, these activities provide the United States with an early warning system to help avert the next attack. For the following reasons, the NSA activities are lawful and consistent with civil liberties.
Great opening. Let's see Ted Kennedy argue with that.

For the historically retarded amongst us:

In reliance on these principles, a consistent understanding has developed that the President has inherent constitutional authority to conduct warrantless searches and surveillance within the United States for foreign intelligence purposes. Wiretaps for such purposes thus have been authorized by Presidents at least since the administration of Franklin Roosevelt in 1940.
What? Not FDR? Say it isn't so. It is so. The more educated on the Left will admit that FDR (and all other war time Presidents) engaged in the same sorts of activities that Bush is engaging in. But they will argue, like I heard Gore Vidal argue in the recent History Channel documentary on Abraham Lincoln, that those wars were real wars and those actions (such as Lincoln arresting newspaper publishers) were needed to save the country wheras Bush's war is illigitimate and therefore his actions are despotic. See how that works? If you agree with the war then curtailing of civil liberties is okay, but if you disagree with it then curtailing civil liberties are not okay. I wonder how the Northern Peace Democrats felt about Lincoln's actions? But I digress, back to FDR in a letter to his Attorney General.

You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigation agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and limit them insofar as possible to aliens.
Ouch. It goes on to show that Truman had a similar view. Then Carter's AG testifying in front of Congress as it was debating FISA:
the current bill recognizes no inherent power of the President to conduct electronic surveillance, and I want to interpolate here to say that this does not take away the power [of] the President under the Constitution.”
Then the much quoted Clinton defense of the same act. Then some case law.

What is interesting is that the Justice Department also argues that Congress authorized the President to wiretap. For instance:

It is also clear that the [Congressional Resolution] confirms and supports the President’s use of those traditional incidents of military force against the enemy, wherever they may be—on United States soil or abroad....

To take action against those linked to the September 11th attacks involves taking action against individuals within the United States. The United States had been attacked on its own soil—not by aircraft launched from carriers several hundred miles away, but by enemy agents who had resided in the United States
for months. A crucial responsibility of the President—charged by the [Congressonal Resolution] and the Constitution—was and is to identify and attack those enemies, especially if they were in the United States, ready to strike against the Nation.

Indeed, if Congress did declare war--which the most certainly did--then it is up to the President how to direct that war, not Congress. That is a simple separation of powers issue.

The history of Presidential intelligence gathering is also elucidated. Fascinating stuff. For instance, I had no idea about this:

George Washington, who “was a master of military espionage” and “made frequent and effective use of secret intelligence in the second half of the eighteenth century.”... As President in 1790, Washington obtained from Congress a “secret fund” to deal with foreign dangers and to be spent at his discretion...[to search] “for persons sent publicly and secretly to search for important information, political or
commercial,”
Indeed. During the Revolutionary War, fought on America soil:
In fact, Washington himself proposed that one of his Generals “contrive a means of opening [British letters] without breaking the seals, take copies of the contents, and then let them go on.”
There goes that fascist Washington again, reading mail without a warrant!

And here it gets to some of my favorite stuff. Unknown to most of our historically retarded public, censorship, actual and literal censorship, has traditionally been part of our war time heritage:

on December 8, 1941, the day after the attack on Pearl Harbor, President Roosevelt gave the Director of the FBI “temporary powers to direct all news censorship and to control all other telecommunications traffic in and out of the United States.”
So I guess FDR and Hitler were made of the same stripe? Oh, I guess that was different, er, somehow. Further:
The President’s order gave the Government of the United States access to “communications by mail, cable, radio, or other means of transmission passing between the United States and any foreign country.”
There is then a discussion of FISA, and how warrantless wiretapping does not contradict that statute either since Congress, in it's declaration of War after 9/11, authorized the President to use all means necessary to protect the U.S. This is a statutory authorization, as foreseen in the FISA enabling bill.

From there it goes into some pretty dry legalistic arguments. Rather boring, from my standpoint. But there is this:

In World War II, for example, the Supreme Court recognized that the President’s authority as Commander in Chief, as supplemented by Congress, included the power to capture and try agents of the enemy in the United States, even if they never had
“entered the theatre or zone of active military operations.”
There is then a discussion of the Fourth Amendment. You might think that since I am a libertarian this would concern me. It does not. The problem with most civil libertarians is they are worried abuot procudural liberties. That is, if the government interferes in your life then it is ok as long as due process was followed (eg, they got a warrant before they searched your home for drugs).

I believe in substantive liberty. If the ends of government be legitimate, then go ahead and employ all means necessary to procuring that end. I just happen to think that telling people not to take drugs or that they can't sell their body is not a necessary end. Preventing terrorism, though, is. And as the memo states:

Defending the Nation from attack is perhaps the most
important function of the federal Government—and one of the few express obligations of the federal Government enshrined in the Constitution.

By Rusty Shackleford, Ph.D. at 08:25 PM | Comments |