Thursday, March 30, 2006

A Footnote about "Eavesdropping"

My rather long post about "Privacy: Variations on the Theme of Liberty" includes a reading list that I update from time to time. Here's the current version:

President had legal authority to OK taps (Chicago Tribune)
Our domestic intelligence crisis (Richard A. Posner)
Many posts by Tom Smith of The Right Coast (start with "Thank You New York Times" on 12/16/05 and work your way to the present)
Eavesdropping Ins and Outs (Mark R. Levin, writing at National Review Online)
The FISA Act And The Definition Of 'US Persons' (Ed Morrissey of Captain's Quarters)
A Colloquy with the Times (John Hinderaker of Power Line)
September 10 America (editorial at National Review Online)
A Patriot Acts (Ben Stein, writing at The American Spectator)
More on the NSA Wiretaps (Dale Franks of QandO)
The President's War Power Includes Surveillance (John Eastman, writing at The Remedy)
Warrantless Intelligence Gathering, Redux (UPDATED) (Jeff Goldstein, writing at Protein Wisdom)
FISA Court Obstructionism Since 9/11 (Ed Morrissey of Captain's Quarters)
FISA vs. the Constitution (Robert F. Turner, writing at OpinionJournal)
Wisdom in Wiretaps (an editorial from OpinionJournal)
Under Clinton, NY Times Called Surveillance a Necessity (William Tate, writing at The American Thinker)
(U.S. Department of Justice)
Terrorists on Tap (Victoria Toensing, writing at OpinionJournal)
Letter from Chairman, Senate Intelligence Committee, to Chairman and Ranking Member of Senate Judiciary Committee
Letter from H. Bryan Cunningham to Chairman and Ranking Member of Senate Judiciary Committee
Has The New York Times Violated the Espionage Act? (article in Commentary by Gabriel Schoenfeld)
Point of No Return (Thomas Sowell, writing at RealClearPolitics)
Letter from John C. Eastman to Chairman of House Judiciary Committee
FISA Chief Judge Speaks Out, Bamford Misinforms (a post at The Strata-Sphere)
DoJ Responds to Congressional FISA Questions (another post at The Strata-Sphere)

To that list I now add two posts at Power Line, in which John Hinderaker and Scott Johnson assess the testimony of five former judges of the Federal Intelligence Surveillance Court who testified recently before the Senate Judiciary Committee. From the transcript (as quoted in Hinderaker's post):

Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President's constitutional authority. Anybody disagree with that?

[No response.]

Chairman Specter: Everybody agrees with that.

The president's inherent constitutional authority includes the use of surveillance against foreign nationals -- even if a U.S. citizen in the U.S. happens to be on the other end of the phone line or e-mail exchange. That point is reinforced by this passage from Johnson's post:

Senator Hatch . . . pursued a series of hypothetical questions that he posed to Judge Kornblum regarding the admissibility in criminal trials of evidence obtained indirectly from the NSA surveillance program:

Judge Kornblum: To be admissible, the evidence would have had to have been lawfully seized or lawfully obtained and the standard that the district judge would use is that, depending upon where this is, is the law in his circuit. In most of the circuits, the law is clear that the President has the authority to do warrantless surveillance if it is to collect foreign intelligence and it is targeting foreign powers or agents. If the facts support that, then the district judge could make that finding and admit the evidence, just as they did in Truong-Humphrey.

(Emphasis added.) Judge Kornblum's reference to Truong-Humphrey is to the federal appellate cases that acknowledge[s] [a] president's inherent authority to order warrantless foreign intelligence surveillance, previously discussed by John here.

So, let's knock off this nonsense about "illegal wiretaps" and get on with finding the bad guys. Actually, I'm sure that's precisely what Bush and company are trying to do, in spite of the ankle-biters in the media and Congress.