- The Washington Times - Thursday, December 22, 2005

I searched in vain through the New York Times story on the National Security Agency allegedly intercepting communications of people in the United States with overseas targets with a nexus to terrorism — for the part that might more fully develop the legal justification for the activity.

I suspect the authors of the Times piece, and the book that it is based on, know about the legal justification. However, they chose not to go into it — not for any reason of public responsibility — but because it makes a “yawner” out of the story’s lead they hope will sell their papers and books: That NSA was collecting the communications of people in this country and President Bush — a Republican — decided to do it.

It’s just not this exciting if you tell the whole story — and I’m sure it’s why the Times didn’t. Here it is if anyone is interested:

In 1978, Congress passed the “FISA” statute, which set up the “FISA Court” — “FISA” stands for “Foreign Intelligence Surveillance Act,” and yes, the FISA Court works in “secret.” Much is made of this in the Times piece, but all state and federal courts that grant authority for searches and wiretaps do so in “secret” — for rather obvious reasons.

The FISA Court is made up of federal judges chosen by the chief justice of the U.S. Supreme Court, and it authorizes wiretaps and searches to collect “foreign intelligence” which has always included information about terrorism. The court is very closely oversighted by the House and Senate Intelligence Committees, that require detailed reports on the cases considered by the court, especially those involving “U.S. persons,” a category which even includes foreigners legally in the United States. Again, there is no shocking news here.

However, FISA isn’t the exclusive legal vehicle to collect “signals intelligence” (the basic mission of NSA). And, every administration and attorney general since 1978, Democrat or Republican, has maintained FISA is not “exclusive,” and that the president, via the NSA, had additional executive powers to collect this kind of information — so long as at least one party to the communication was foreign (the “target”) and the communication was collected for national security purposes.

In other words, the mere fact a “U.S. person” is a party to a communication doesn’t mean FISA would always apply.

This is a legal argument based more on “separation of powers” than anything else — and the Justice Department, the harbinger and protector of the president’s executive powers, has always, and will always, maintain that the president has constitutional authority to do this. Again, it is nothing new, and certainly not shocking nor newsworthy, hence not covered in the Times story.

So, what probably happened?

As reported in the story, the president apparently signed an executive order, carrying out his constitutional powers as commander in chief (as recognized by the various September 11 Resolutions and September 11 emergency legislation) and directed NSA (which is part of the Defense Department) to collect, as foreign intelligence, this category of communications. In addition, the executive order may have established new “minimization rules” for NSA — allowing them to look at and analyze, for foreign intelligence purposes, the U.S. portion of the communication with the foreign target of intelligence interest.

Bottom line: This specific category of communications — at least its U.S. end — may have been handled (before September 11, 2001) by a request to the FISA court for a warrant. However, it didn’t have to be. That’s really all there is to it.

According to the New York Times, the oversight of this “new” NSA activity is apparently the same as the work of the FISA Court: comprehensive oversight reports and briefings to the House and Senate Intelligence Committees.

So, how goofy is it for Sen. Chuck Schumer, New York Democrat, to be “outraged” by this? Pretty goofy: He is more simply unaware of it than anything, because he is “informed” of the activity through his party’s‘ vice chairman of the Senate Intelligence Committee — who was most certainly briefed in detail about the executive order and the specific NSA activity.

Remember the late, great Gilda Radner, the gifted comedienne, whose SNL character “Emily Litella” always got it wrong? When she finally understood, all she said was, “never mind.” Let’s hope Mr. Schumer walks the few feet across his side of the Senate Chamber, listens, very carefully, to Sen. John Rockefeller of West Virginia (Democratic vice chairman of the Senate Intelligence Committee) and finally gets it right on this.

Daniel Gallington is a senior fellow at the Potomac Institute for Policy Studies in Arlington, Va. He was deputy counsel for intelligence policy at the Justice Department and as bipartisan general counsel for the Senate Intelligence Committee.

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