…on the Bush administration over the NSA intercept program, in two articles in today’s paper. The first, which I linked to last night, is “Cheney Defends Eavesdropping Without Warrants”. The second is evidently an effort to shore up the Times’ claim that the NSA program is illegal; the paper’s reporters went back to its anonymous leakers and asked them about President Bush’s explanation that the program involves only international communications. The result is the unintentionally humorous “Spying Program Snared U.S. Calls”. This is the best the Times can come up with:
A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.
The officials say the National Security Agency’s interception of a small number of communications between people within the United States was apparently accidental, and was caused by technical glitches at the National Security Agency in determining whether a communication was in fact “international.”
[I]n at least one instance, someone using an international cellphone was thought to be outside the United States when in fact both people in the conversation were in the country.
Wow, is this a scandal, or what? On rare occasions, the NSA has inadvertently recovered a conversation involving an al Qaeda operative who is normally stationed overseas and uses an international cell phone number, but who has in fact entered the United States. Even the Times should recognize that this circumstance makes it more urgent, not less so, for the al Qaeda operative’s communications to be tracked. The idea that this kind of inadvertent intercept renders the program unlawful is risible on its face.
I have scoured the Times’ reporting for any argument as to why the NSA program would be illegal, and so far haven’t found one, beyond the false insinuation that warrantless searches must be illegal. What the Times has mostly done is quote anonymous sources who express “doubts” and “concerns” about the legality of the program. But doubts and concerns may or may not be well-founded, and a doubt is not an argument. Today’s reporting continues to be argument-free. The article on Cheney’s defense of the NSA program includes this quote from a liberal law professor who has written a book on threats to the First Amendment:
Geoffrey R. Stone, a law professor at the University of Chicago, said he found the issue straightforward, at least as regards surveillance by the National Security Agency. “Some legal questions are hard,” Professor Stone said. “This one is not. The president’s authorizing of N.S.A. to spy on Americans is blatantly unlawful.”
I assume that there are articulable reasons why Professor Stone holds this view, but the Times doesn’t tell us what they are. So last night I sent the following email to Professor Stone:
Professor Stone, you were quoted in the New York Times today to the effect that the administration’s NSA international intercept program is plainly illegal. This puzzled me, as I have been researching the issue and have not found any support for that proposition. It appears to be universally recognized by the federal courts that warrantless surveillance for national security purposes is within the President’s Article II power. See, for example, the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001:
“The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. *** 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.”
The Supreme Court precedents are consistent with that view.
I am writing on this topic, and want to make sure that I am not overlooking an argument for the illegality of the intercepts. As happens so often in newspaper articles, the Times reporter quoted your conclusion without conveying any hint of the grounds for it. I would appreciate it very much if you would take the trouble to refer me to the authorities that you believe support the opinion that you gave to the Times.
Thank you very much.
While I have seen nothing so far that would suggest that the NSA program was illegal, I want to make sure that we are addressing the strongest arguments that can be made to that effect, and Professor Stone appears to be a respected authority on the subject. So I will post any response I receive from him, and will respond to whatever arguments and authorities he brings forward.
PAUL adds: Professor Stone has a column on the subject (via Real Clear Politics). It appears that the Times reported Stone’s views fully and accurately. If the professor has any legal grounds for his view that the NSA program is illegal, he didn’t include them in his conclusory column. Indeed, the column is devoid of any analysis of the applicable legal provisions and case law.