Wednesday, August 8, 2007

Constitutional Authority for NSA

Our founding fathers decided that there should be three equal but separate branches of Government. Each Branch has specific responsibilities and powers as defined by the Constitution and its Amendments. Those three Branches are:
The Congress has the Constitutional Authority to draft and pass legislation which becomes law after the President approves with his signature. Should he veto any legislation, it is sent back to Congress for re-approval by 2/3 of the members of each the House and Senate before this legislation becomes law. This is the Federal process and similar processes apply to State and Local Governments, but all of these laws are subject to review by the various courts up to and including the final Authority of the Supreme Court. No law may be enforced if it violates provisions of the Constitution. Any law which limits the powers, granted by the Constitution, of any branch or the Government is therefore non-enforceable and void. Recognize, however, that there are some gray areas which require interpretation, and appeal to the Supreme Court has from time to time been necessary.

Such is not the case for matters of Foreign Intelligence gathering. Article II, Section 2 of the Constitution declares:
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices…
As the Commander In Chief of the Armed Forces, the President must be able to gather Foreign Intelligence. There is no other responsible manner in which to conduct any engagement of our Military. Since the President is Commander In Chief, and the National Security Agency (NSA) is a military operation, it is obvious that the President has Constitutional Authority to direct any NSA operations in the pursuit of National Security. Part of the gathering of Foreign Intelligence is intercepting the enemy’s communications. It should be intuitive that the actions, methods and operation of the NSA are by necessity Top Secret.

But the Democrats, lead by those in Congress, and Patrick Leahy (D-Vt.) in particular insist that the Legislative Branch has the Constitutional Authority to approve or direct the actions of a Secret program of the NSA. According to an article at “The Crypt’s Blog” titled Leahy sets Aug. 20 deadline for NSA eavesdropping documents the Senator, his Congressional Committee and probably the entire Congress want access to the operations of the NSA program.
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) has given the White House until Aug. 20 to turn over internal documents on the NSA warrantless eavesdropping program.
So far the White House has shown, rightfully, little inclination to co-operate with the Congress and in this case specifically Senator Leahy. There is no Constitutional basis for the Legislative Branch to interfere with a Military Operation such as the NSA Intercept Program. There is, however, justification for the NSA to conduct Warrantless Intercepts.

Enter the 4th Amendment to the Constitution.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [emphasis mine]
The questions to be answered now is who are the “people” and what constitutes “unreasonable”, because the answers will determine when a warrantless search is legal. By people, I suggest that the Framers of the Constitution intended to cover the Citizens of the USA, but the generally accepted interpretation by the Courts, has a broader meaning. The Courts have therefore generally defined “people” as those persons within the borders of the USA. As to “unreasonable” the meaning has been interpreted as meaning private communications, where there is a reasonable expectation of privacy.

Generally the Presidential Authority to intercept communications of a person in the US as a representative of a Foreign Government without a Warrant is accepted. The Democrats want to prevent such intercepts of known or suspected members of terrorist groups such as al Qeada. We extend Diplomatic Immunity to agents of Foreign Governments, but that doesn’t mean we don’t intercept what we can without a warrant. And why should we fail to monitor communications between Foreign Based terror subjects and people in the USA, citizen or not. After all, if Osama bin Laden is calling me, I sure hope the Government is asking Why. It seems that the Democrats love big Government, but don’t trust it. They want to Create Big Government, and then feel they need to be afraid of their creation. Sounds like a good argument for small Government.

Because of the advanced technology and fiber-optic connections within the Network systems in the USA, many Foreign originated and Foreign terminated communications come through the USA. For instance, a communication originating in Afghanistan for someone in Iraq could be routed through the USA. And this is where it gets worse. The Democrats want to force the Executive Branch to get a warrant to monitor any communication in the USA, even if both parties are not in the USA. There is no good reason for the Democrats to object to the interception of this type of communication, but the Democrats have tried.

The new authorization for the NSA program is not only necessary, it is basic to our freedom and security.

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