Foreign Intelligence Wiretaps Are Legal

So has said the Foreign Intelligence Surveillance Court:

The allegation of Presidential law-breaking rests solely on the fact that Mr. Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978.

In a 2002 case dubbed "In Re: Sealed Case," the FISA appeals court decision cited a previous FISA case [U.S. v. Truong], where a federal court held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information."

The court's decision went on to say: "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."

So says John Schmidt, a former Associate Attorney General - in the Clinton administration:

President Bush's post-September 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents....

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

7th U.S. Circuit Court of Appeals Judge Richard Posner argues that not only is the NSA eavesdropping program not a threat to civil liberties, but its primary reason for existing is precisely that our country lacks an internal security capability that the Pentagon is being forced to provide by the seat of its pants:

The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.

The data that make the cut are those that contain clues to possible threats to national security. The only valid ground for forbidding human inspection of such data is fear that they might be used to blackmail or otherwise intimidate the administration's political enemies. That danger is more remote than at any previous period of U.S. history..,.

The goal of national security intelligence is to prevent a terrorist attack, not just punish the attacker after it occurs, and the information that enables the detection of an impending attack may be scattered around the world in tiny bits. A much wider, finer-meshed net must be cast than when investigating a specific crime. Many of the relevant bits may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.

The Pentagon's rush to fill gaps in domestic intelligence reflects the disarray in this vital yet neglected area of national security....Most other nations, such as Britain, Canada, France, Germany and Israel, many with longer histories of fighting terrorism than the United States, have a domestic intelligence agency that is separate from its national police force, its counterpart to the FBI. We do not. We also have no official with sole and comprehensive responsibility for domestic intelligence. It is no surprise that gaps in domestic intelligence are being filled by ad hoc initiatives.

Another such ad hoc initiative was Able Danger, and as we all know now, the Clinton administration shut it down - as a "threat to civil liberties".

This disarray, and the bureaucratic ponderosity that is its most visible hallmark, used to be a bipartisan concern, as NRO's Byron York reported yesterday:

In 2002, when the president made his decision, there was widespread, bipartisan frustration with the slowness and inefficiency of the bureaucracy involved in seeking warrants from the special intelligence court, known as the FISA court. Even later, after the provisions of the Patriot Act had had time to take effect, there were still problems with the FISA court — problems examined by members of the September 11 Commission — and questions about whether the court can deal effectively with the fastest-changing cases in the war on terror....

Lawmakers of both parties recognized the problem in the months after the September 11 terrorist attacks. They pointed to the case of Coleen Rowley, the FBI agent who ran up against a number roadblocks in her effort to secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda operative who had taken flight training in preparation for the hijackings....Rowley wrote up her concerns in a famous 13-page memo to FBI Director Robert Mueller, and then elaborated on them in testimony to Congress. "Rowley depicted the legal mechanism for security warrants under the Foreign Intelligence Surveillance Act, or FISA, as burdensome and restrictive, a virtual roadblock to effective law enforcement," Legal Times reported in September 2002.

The Patriot Act included some provisions, supported by lawmakers of both parties, to make securing such warrants easier. But it did not fix the problem. In April 2004, when members of the September 11 Commission briefed the press on some of their preliminary findings, they reported that significant problems remained....

It was in the context of such bureaucratic bottlenecks that the President first authorized, and then renewed, the program to bypass the FISA court in cases of international communications of people with known al Qaeda links. [emphases added]

Thus have we come, in the space of less than two years, from a Democrat-orchestrated public star chamber in the spring of 2004 that sought to hang around the neck of George W. Bush the entire blame for Bill Clinton's eight years of national security and intelligence dereliction that cost three thousand American lives to a Democrat-orchestrated witchhunt that seeks to villify George W. Bush for taking the very steps necessary to prevent another terrorist attack two full years before they blamed him for the last one.

Listening to Democrats speak anymore is like having an attack of diarrhea and then dropping your keys in the toilet and having to fish them out - an irretrievably unpleasant, and frankly disgusting, experience with people who are only capable of spouting BS.

UPDATE 12/22: Left-wing University of Chicago law Professor Cass Sunstein sez the NSA wiretapping program is legal.

If anybody on the left has the slightest shred of intellectual awareness left, they'll drop this angle like the PR phosphorus grenade it is.