DOJ Defends Legal Authority For NSA Domestic Surveillance

by Sabrina I. Pacifici on January 19, 2006

As reported by the New York Times: Administration Lays Out Legal Case for Wiretapping Program, which references the following report:

  • a 42 page DOJ paper, in unclassified form (PDF), titled Legal Authorities Supporting the Activities of the National Security Agency Described by the President, released January 19, 2006. There is also a one page preface letter by AG Gonzales that accompanies the report, addressed to Sen. Frist, and cc’d to Sen. Reid. It states in part “…these NSA activities are lawful in all respects.”
    “The NSA activities are supported by the President’s well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. The President has the chief responsibility under the Constitution to protect America from attack, and the Constitution gives the President the authority necessary to fulfill that solemn responsibility. The President has made clear that he will exercise all authority available to him, consistent with the Constitution, to protect the people of the United States…In sum, the NSA activities are consistent with the Fourth Amendment because the warrant requirement does not apply in these circumstances, which involve both “special needs” beyond the need for ordinary law enforcement and the inherent authority of the President to conduct warrantless electronic surveillance to obtain foreign intelligence to protect our Nation from foreign armed attack. The touchstone of the Fourth Amendment is reasonableness, and the NSA activities are certainly reasonable, particularly taking into account the nature of the threat the Nation faces.”

  • Related postings on domestic suveillance
  • Posting by Rep. John Conyers: “Tomorrow, I will be holding a hearing/briefing on Bush’s warrantless domestic spying program. The hearing will commence at 11 am ET, and will be broadcast live on C-SPAN, Radio Pacifica, and ABC Radio. It will also be covered by CNN, the New York Times, and many bloggers. This is particularly timely since the DOJ today issued a 42 page rant that again attempts to defend the indefensible – spying on Americans without court approval.”
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