A DRIZZLE IN A TEA-CUP: RE-EXAMINING THE ORIGINAL NYTIMES NSA EXPOSE

EXCERPTS FROM THE 12/15/05 NYTIMES ARTCLE (IN ORIGINAL SEQUENCE) -

"Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications." ...

Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation's legality and oversight. ... Defenders of the program say it has been a critical tool in helping disrupt terrorist plots and prevent attacks inside the United States.

Administration officials are confident that existing safeguards are sufficient to protect the privacy and civil liberties of Americans, the officials say. In some cases, they said, the Justice Department eventually seeks warrants if it wants to expand the eavesdropping to include communications confined within the United States.The officials said the administration had briefed Congressional leaders about the program and notified the judge in charge of the Foreign Intelligence Surveillance Court, the secret Washington court that deals with national security issues. ...

While many details about the program remain secret, officials familiar with it said the N.S.A. eavesdropped without warrants on up to 500 people in the United States at any given time. The list changes as some names are added and others dropped, so the [TOTAL] number monitored in this country may have reached into the thousands over the past three years, several officials said. Overseas, about 5,000 to 7,000 people suspected of terrorist ties are monitored at one time, according to those officials. ...

Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States ­ including American citizens, permanent legal residents, tourists and other foreigners ­ is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation....

In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said. ...

Until the new program began, the N.S.A. typically limited its domestic surveillance to foreign embassies and missions in Washington, New York and other cities, and obtained court orders to do so. ...

Since 2002, the agency has been conducting some warrantless eavesdropping on people in the United States who are linked, even if indirectly, to suspected terrorists through the chain of phone numbers and e-mail addresses, according to several officials who know of the operation. Under the special program, the agency monitors their international communications, the officials said. The agency, for example, can target phone calls from someone in New York to someone in Afghanistan.

Warrants are still required for eavesdropping on entirely domestic-to-domestic communications, those officials say, meaning that calls from that New Yorker to someone in California could not be monitored without first going to the Federal Intelligence Surveillance Court. ...

After the Sept. 11 attacks, though, the United States intelligence community was criticized for being too risk-averse. The National Security Agency was even cited by the independent 9/11 Commission for adhering to self-imposed rules that were stricter than those set by federal law. ...

Justice Department lawyers disclosed their thinking on the issue of warrantless wiretaps in national security cases in a little-noticed brief in an unrelated court case. In that 2002 brief, the government said that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

Administration officials were also encouraged by a November 2002 appeals court decision in an unrelated matter. The decision by the Foreign Intelligence Surveillance Court of Review, which sided with the administration in dismantling a bureaucratic "wall" limiting cooperation between prosecutors and intelligence officers, noted "the president's inherent constitutional authority to conduct warrantless foreign intelligence surveillance." [HYPERLINK AND EMPHASIS ADDED - RELIAPUNDIT]

But the same court suggested that national security interests should not be grounds "to jettison the Fourth Amendment requirements" protecting the rights of Americans against undue searches. The dividing line, the court acknowledged, "is a very difficult one to administer."

ACCORDING TO THE NYTIMES (and their sources): This program was limited to intercepting the INTERNATIONAL electronic communications of between 500 and maybe 2,000 people in the USA (OVER THREE YEARS, and regardless of their citizenship), and up to 7000 known agents of al Qaeda and their affiliates (WHO WERE OVERSEAS).

This seems like EXTREMELY targeted and focused surveillance to me, and not anything like a "wholesale domestic spying scandal" - which is how the anti-Bush factions are portraying it. I think that people who are portraying this as a major scandal - one which reveals actions which are illegal, unconstitutional and impeachable - are making a mountain out of a molehill. WORSE: for partisan political reasons, they are making a mountain (which damages our national secrity) out of a beneficial mole-hill.

IMHO, this POTUS ordered program does not even rise to a legal or constitutional problem even if SOME of the info garnered from it ends up allowing SOME of the suspects to be charged in a court of law. After all, this is how the FISA COURT OF REVIEW decided the issue (in 2002) and - even more importantly - this is one of the MOST IMPORTANT CHANGES we wanted to make and did make after 9/11: we WANTED to "break down the wall" between international intelligence and domestic law enforcement, ESPECIALLY if it could prevent an attack.

The FBI and NSA and DDNI have said that this HIGHLY TARGETED AND FOCUSED program and others have prevented attacks. Therefore it seems ENTIRELY good, if not essential AND appropriate to me. And entirely legal and constitutional, at least according to an opinion, cited in that NYTIMES expose, written by the FISA Court of Review (which cited the SCOTUS and other federal district courts in their opinion), and which specifically held that the POTUS DOES have the right and authority to gather surveillance without a court order in order to garner foreign intelligence.

IN CONCLUSION: This isn't even a tempest in a teapot; this is a drizzle in a tea-cup.