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NSA (letter to Senate)
NRO ^ | KJ Lopez

Posted on 12/22/2005 12:03:18 PM PST by hipaatwo

writes to the Senate about the eavesdropping frenzy.

It's a PDF file


TOPICS: Front Page News; News/Current Events
KEYWORDS: 109th; d; nsa; patriotleak; spying
Navigation: use the links below to view more comments.
first 1-5051-100101-150151-200201-240 next last

1 posted on 12/22/2005 12:03:19 PM PST by hipaatwo
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To: Mo1; Howlin; Ernest_at_the_Beach

FYI


2 posted on 12/22/2005 12:03:56 PM PST by hipaatwo
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To: hipaatwo

Holy Cow!


3 posted on 12/22/2005 12:07:06 PM PST by Mo1 (Republicans protect Americans from Terrorists. Democrats protect Terrorists from Americans)
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To: Congressman Billybob

FYI..you understand this way better than me :)


4 posted on 12/22/2005 12:07:27 PM PST by hipaatwo
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To: Mo1

I wish I could cut and paste from a PDF to post it here!


5 posted on 12/22/2005 12:07:59 PM PST by hipaatwo
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To: hipaatwo

Wow -- great find, and a very detailed letter!


6 posted on 12/22/2005 12:09:05 PM PST by scott7278 (Before I give you the benefit of my reply, I'd like to know what we're talking about.)
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To: hipaatwo

Well stick that in your pipe and smoke it!


7 posted on 12/22/2005 12:09:40 PM PST by Steel Wolf (* No sleep till Baghdad! *)
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To: onyx; ohioWfan; Texasforever; BigSkyFreeper; Tamzee; mrs tiggywinkle; EllaMinnow; cyncooper; Dog; ..

Ping - need help in posting this PDF

Does anyone know how to?


8 posted on 12/22/2005 12:10:47 PM PST by Mo1 (Republicans protect Americans from Terrorists. Democrats protect Terrorists from Americans)
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To: hipaatwo

Assistant Attorney General William E. Moschella lays out the case perfectly. The President acted within the law as defined by the act of Congress adopted and signed on September 18, 2001. This is fully compliant with the Constitution, which does not protect "privacy" for people who are having conversations with enemies of the United States.


9 posted on 12/22/2005 12:11:36 PM PST by advance_copy (Stand for life, or nothing at all)
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To: Mo1

freepmail


10 posted on 12/22/2005 12:11:57 PM PST by Peach (The Clintons pardoned more terrorists than they ever captured or killed.)
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To: hipaatwo

That's gonna leave a mark.


11 posted on 12/22/2005 12:12:12 PM PST by nuffsenuff (Don't get stuck on Stupid - General Russ Honore Sept 21, 2005)
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To: hipaatwo

You should be able to
Hit the Select button to the right of the hand of the reader.
Highlight what you want.
Hit Control and C to copy and then Control and V to paste.



The purpose of this letter is to provide an additional brief summary of the legal authority
supporting the NSA activities described by the President.


12 posted on 12/22/2005 12:12:32 PM PST by laxin4him (They will know by our love not our picket lines)
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To: Mo1

I'll post the entire letter text only if everyone is fine with a VERY long post.


13 posted on 12/22/2005 12:12:33 PM PST by mnehring (“Anybody who doesn’t appreciate what America has done and President Bush, let them go to hell”...)
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To: hipaatwo
Balls in their court.


Let's get it on!





14 posted on 12/22/2005 12:12:40 PM PST by G.Mason (Others have died for my freedom; now this is my mark ... Marine Corporal Jeffrey Starr, KIA 04-30-05)
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To: laxin4him
Entire letter sans header:

Dear Chairmen Roberts and Hoekstra. Vice Chairman Rockefeller, and Ranking Member Harman: As you know, in responsc to unauthorized disclosures in the media, the President has described certain activitics of the National Security Agency ("NSA") that he has authorized since shortly after Septcmber 1 1,200 1 . As described by the President, the NSA intercepts certain international communications into and out of the United States of people linked to al Qaeda or an affiliated terrorist organization. The purpose of these intercepts is to establish an early warning system to detect and prcvent another catastrophic terrorist attack on the IJnited States. The President has made clear that he will use his constitutional and statutory authorities to protect the Amer~can people from further terrorist attacks, and the NSA activities the President described are part of that effort. Leaders of the Congress were briefed on these activities more than a dozen tlnies. The purpose of this letter is to provide an additional brief summary of the legal authority supporting the NSA activities described by the President. As an initial matter, I emphasize a few points. The President stated that these activities are " crucial to our national security." The President further explained that "the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country." These critical national security activities remain classified. All United States laws and policies governing the protection and nondisclosure of national security information. including the information relating to the activities described by the President, remain in full force and effect. The unauthorized disclosure of classified infomiation violates federal criminal law. The Government may provide further classified briefings to the Congress on these activities in an appropriate manner. Any such briefings will be conducted in a manner that will not endanger national security. Under Article 11 of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty. See, e.g., Prize Cases, 67 U.S. (2 Black) 635, 668 (1 863) (stressing that if the Nation is invaded, "the President is not only authorized but hound to resist by force . . . . without waiting for any special legislative authority"); Campbell v. Clinton, 203 F.3d 19,27 (D.C. Cir. 2000) (Silberman, J., concurring) ("[Tlhe Prize Cases . . . stand for the proposition that the President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected."); id. at 40 (Tatel, J., concurring). The Congress recognized this constitutional authority in the preamble to the Authorization for the Use of Military Force ("AUMF") of September 18, 2001, 115 Stat. 224 (2001) ("[Tlhe President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."), and in the War Powers Resolution, see 50 U.S.C. 8 1541(c) ("The constitutional powers of the President as Commander in Chief to introduce United States Armed Forces into hostilities[] . . . [extend to] a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."). This constitutional authority includes the authority to order warrantless foreign intelligence surveillance within the United States, as all federal appellate courts, including at least four circuits, to have addressed the issue have concluded. See, e.g., In re Sealed Case, 310 F.3d 7 17, 742 (FISA Ct. of Review 2002) ("[AIII the other courts to have decided the issue [have] 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. . . ."). The Supreme Court has said that warrants are generally required in the context of purely donrestic threats. hut it expressly distinguished,foreign threats. See United States v. United States District Cotrrt, 407 U.S. 297,308 (1972). As Justice Byron White recognized almost 40 years ago, Presidents have long exercised the authority to conduct warrantless surveillance for national security purposes, and a warrant is unnecessary "if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable." Katz v. United States, 389 U.S. 347, 363-64 (1967) (White, J., concurring). The President's constitutional authority to direct the NSA to conduct the activities he described is supplemented by statutory authority under the AUMF. The AUMF authorizes the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of September 1 1, 2001, . . . in order to prevent any future acts of international terrorism against the United States." 5 2(a), The AUMF clearly contemplates action within the United States, Jee also id. pmbl. (the attacks of September 1 I "render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad"). The AUMF cannot be read as limited to authorizing the use of force against Afghanistan, as some have argued. Indeed, those who directly "committed" the attacks of September 11 resided in the United States for months before those attacks. The reality of the September I 1 plot demonstrates that the authorization of force covers activities both on foreign soil and in America. In Han~di v. R~inzsfeld, 542 U.S. 507 (2004), the Supreme Court addressed the scope of the AUMF. At least five Justices concluded that the AUMF authorized the President to detain a U.S. citizen in the United States because "detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war" and is therefore included in the "necessary and appropriate force" authorized by the Congress. Id. at 5 18-19 (plurality opinion of O'Connor, J.); see id. at 587 (Thomas, J., dissenting). These five Justices concluded that the AUMF "clearly and unmistakably authorize[s]" the "fundaniental incident[s] of waging war." Id. at 5 18-19 (plurality opinion); see id. at 587 (Thomas, J., dissenting). Con~munications intelligence targeted at the enemy is a fundamental incident of the use of military force. Indeed, throughout history, signals intelligence has formed a critical part of waging war. In the Civil War, each side tapped the telegraph lines of the other. In the World Wars, the United States intercepted telegrams into and out of the country. The AUMF cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy. We cannot fight a war blind. Because communications intelligence activities constitute, to use the language of Hamdi, a fundamental incident of waging war, the AUMF clearlv und unnzistakuhlj authorizes such activities directed against the communications of our enemy. Accordingly, the President's "authority is at its maximum." Youngsrown Sheet & Tub? Co. v. Sawyer, 343 U.S. 579,635 (1952) (Jackson, J., concurring); see Dames & Moore v. Regan, 453 U.S. 654, 668 (1981); cf: Y O U I I ~ S ~ O W I I , 343 U.S. at 585 (noting the absence of a statute "from which [the asserted authority] c[ould] be fairly implied"). The President's authorization of targeted electronic surveillance by the NSA is also consistent with the Foreign Intelligence Surveillance Act ("FISA"). Section 25 11(2)(f) oftitle 18 prov~des, as relevant here, that the procedures of FISA and two chapters of title 18 "shall be the exclusive means by which electronic surveillance.. . may be conducted." Section 109 ofFISA, in turn, makes it unlawful to conduct electronic surveillance, "except as authorized by statute." 50 U.S.C. 5 1809(a)(l). Importantly, section 109's exception for electronic surveillance "authorized by statute" is broad, especially considered in the context of surrounding provisions. Sec 18 U.S.C. 5 251 l(1) ("Except as otherwise specifically provided in this chapter any person who+a) intentionally intercepts . . . any wire, oral, or electronic communication[] . . . shall be punished . . . .") (emphasis added); id. 4 25 11(2)(e) (providing a defense to liability to individuals "conduct[ing] electronic surveillance, . . . as authorized by thatAct[FISA]") (emphasis added). By expressly and broadly excepting from its prohibition electronic surveillance undertaken "as authorized by statute," section 109 of FISA permits an exception to the "procedures" of FISA referred to in 18 U.S.C. a 251 1(2)(f) where authorized by another statute, even if the other authorizing statute does not specifically amend section 25 11(2)(f). The AUMF satisfies section 109's requirement for statutory authorization of electronic surveillance, just as a majority of the Court in Hanzdi concluded that it satisfies the requirement in 18 U.S.C. 9 4001(a) that no U.S. citizen be detained by the United States "except pursuant to an Act of Congress." See Hu~ndi, 542 U.S. at 519 (explaining that "it is of no moment that the AUMF does not use specific language of detention"); sec id. at 587 (Thomas, J., dissenting). Some might suggest that FISA could be read to require that a subsequent statutory authorization must come in the form of an amendment to FISA itself. But under established principles of statutory construction, the AUMF and FISA must be constnied in harmony to avoid any potential conflict between FISA and the President's Article I1 authority as Commander in Chief. See, e.g., Zad~yrias v. Davis, 533 U.S. 678, 689 (2001); INSv. Sf. Cvr, 533 U.S. 289, 300 (2001). Accordingly. any ambiguity as to whether the AUMF is a statute that satisfies the requirements of FISA and allows electronic surveillance in the conflict with a1 Qaeda without complying with FISA procedures must be resolved in favor ofan interpretation that is consistent with the President's long-recognized authority. The NSA activities described by the President are also consistent with the Fourth Amendment and the protection of civil liberties. The Fourth Amendment's "central requirement is one of reasonableness." Illinois v. McArthur, 53 1 U.S. 326,330 (2001) (internal quotation marks omitted). For searches conducted in the course of ordinary criminal law enforcement, reasonableness generally requires securing a warrant. See Bd. ofEduc, v. Earls, 536 U.S. 822, 828 (2002). Outside the ordinary criminal law enforcement context, however, the Supreme Court has, at times, dispensed with the warrant, instead adjudging the reasonableness of a search under the totality of the circumstances. See United States v. Knights, 534 U.S. 112, 118 (2001). In particular, the Supreme Court has long recognized that "special needs, beyond the normal need for law enforcement," can justify departure from the usual warrant requirement. Vernonia School Dis!. 47J v. Acton, 5 15 U.S. 646, 653 (1995); see also Ci@ ofIndianapolis v. Edmot~d, 531 U.S. 32.41- 42 (2000) (striking down checkpoint where "primary purpose was to detect evidence of ordinary criminal wrongdoing"). Foreign intelligence collection, especially in the midst of an armed conflict in which the adversary has already launched catastrophic attacks within the United States, fits squarely within the "special needs" exception to the warrant requirement. Foreign intelligence collection undertaken to prevent further devastating attacks on our Nation serves the highest government purpose through means other than traditional law enforcement. See In re Sealed Case, 3 10 F.3d at 745; United States v. Duggan, 743 F.2d 59. 72 (2d Cir. 1984) (recognizing that the Fourth Amendment implications of foreign intelligence surveillance are far different from ordinary wiretapping, because they are not principally used for criminal prosecution). Intercepting comn~unications into and out of the United States of persons linked to al Qaeda in order to detect and prevent a catastrophic attack is clearly reasonable. Reasonableness is generally determined by "balancing the nature of the intnision on the individual's privacy against the promotion of legitimate governmental interests." Earls, 536 U.S. at 829. There is undeniably an important and legitimate privacy interest at stake with respect to the activities described by the President. That must be balanced, however, against the Government's compelling interest in the security of the Nation. see, e.g., Haig v. Agee, 453 U.S. 280, 307 (1981) ("It is obvious and unarguable that no governmental interest is more con~pelling than the security of the Nation.") (citation and quotation marks omitted). The fact that the NSA activities are reviewed and reauthorized approximately every 45 days to ensure that they continue to be necessary and appropriate further demonstrates the reasonableness of these activities. As explained above. the President determined that it was necessary following September 1 1 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system. In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities. Nevertheless, I want to stress that the United States makes full use of FISA to address the terrorist threat, and FISA has proven to be a very important tool, especially in longer-term investigations. In addition, the United States is constantly assessing all available legal options, taking full advantage of any developments in the law. We hope this information is helpful Sincerely, William E. Moschella Assistant Attorney General
15 posted on 12/22/2005 12:13:47 PM PST by mnehring (“Anybody who doesn’t appreciate what America has done and President Bush, let them go to hell”...)
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To: laxin4him

Here it is. You can edit as you wish



Dear Chairmen Roberts and Hoekstra. Vice Chairman Rockefeller, and Ranking Member Harman:
As you know, in responsc to unauthorized disclosures in the media, the President has
described certain activitics of the National Security Agency ("NSA") that he has authorized since
shortly after Septcmber 1 1,200 1 . As described by the President, the NSA intercepts certain
international communications into and out of the United States of people linked to al Qaeda or an
affiliated terrorist organization. The purpose of these intercepts is to establish an early warning
system to detect and prcvent another catastrophic terrorist attack on the IJnited States. The
President has made clear that he will use his constitutional and statutory authorities to protect the
Amer~canp eople from further terrorist attacks, and the NSA activities the President described are
part of that effort. Leaders of the Congress were briefed on these activities more than a dozen
tlnies.
The purpose of this letter is to provide an additional brief summary of the legal authority
supporting the NSA activities described by the President.
As an initial matter, I emphasize a few points. The President stated that these activities are
" crucial to our national security." The President further explained that "the unauthorized disclosure
of this effort damages our national security and puts our citizens at risk. Revealing classified
information is illegal, alerts our enemies, and endangers our country." These critical national
security activities remain classified. All United States laws and policies governing the protection
and nondisclosure of national security information. including the information relating to the
activities described by the President, remain in full force and effect. The unauthorized disclosure
of classified infomiation violates federal criminal law. The Government may provide further
classified briefings to the Congress on these activities in an appropriate manner. Any such
briefings will be conducted in a manner that will not endanger national security.
Under Article 11 of the Constitution, including in his capacity as Commander in Chief, the
President has the responsibility to protect the Nation from further attacks, and the Constitution
gives him all necessary authority to fulfill that duty. See, e.g., Prize Cases, 67 U.S. (2 Black) 635,
668 (1 863) (stressing that if the Nation is invaded, "the President is not only authorized but hound
to resist by force . . . . without waiting for any special legislative authority"); Campbell v. Clinton,
203 F.3d 19,27 (D.C. Cir. 2000) (Silberman, J., concurring) ("[Tlhe Prize Cases . . . stand for the
proposition that the President has independent authority to repel aggressive acts by third parties
even without specific congressional authorization, and courts may not review the level of force
selected."); id. at 40 (Tatel, J., concurring). The Congress recognized this constitutional authority
in the preamble to the Authorization for the Use of Military Force ("AUMF") of September 18,
2001, 115 Stat. 224 (2001) ("[Tlhe President has authority under the Constitution to take action to
deter and prevent acts of international terrorism against the United States."), and in the War Powers
Resolution, see 50 U.S.C. 8 1541(c) ("The constitutional powers of the President as Commander in
Chief to introduce United States Armed Forces into hostilities[] . . . [extend to] a national
emergency created by attack upon the United States, its territories or possessions, or its armed
forces.").
This constitutional authority includes the authority to order warrantless foreign intelligence
surveillance within the United States, as all federal appellate courts, including at least four circuits,
to have addressed the issue have concluded. See, e.g., In re Sealed Case, 310 F.3d 7 17, 742 (FISA
Ct. of Review 2002) ("[AIII the other courts to have decided the issue [have] 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. . . ."). The
Supreme Court has said that warrants are generally required in the context of purely donrestic
threats. hut it expressly distinguished,foreign threats. See United States v. United States District
Cotrrt, 407 U.S. 297,308 (1972). As Justice Byron White recognized almost 40 years ago,
Presidents have long exercised the authority to conduct warrantless surveillance for national
security purposes, and a warrant is unnecessary "if the President of the United States or his chief
legal officer, the Attorney General, has considered the requirements of national security and
authorized electronic surveillance as reasonable." Katz v. United States, 389 U.S. 347, 363-64
(1967) (White, J., concurring).
The President's constitutional authority to direct the NSA to conduct the activities he
described is supplemented by statutory authority under the AUMF. The AUMF authorizes the
President "to use all necessary and appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or aided the terrorist attacks of September
1 1, 2001, . . . in order to prevent any future acts of international terrorism against the United
States." 5 2(a), The AUMF clearly contemplates action within the United States, Jee also id.
pmbl. (the attacks of September 1 I "render it both necessary and appropriate that the United States
exercise its rights to self-defense and to protect United States citizens both at home and abroad").
The AUMF cannot be read as limited to authorizing the use of force against Afghanistan, as some
have argued. Indeed, those who directly "committed" the attacks of September 11 resided in the
United States for months before those attacks. The reality of the September I 1 plot demonstrates
that the authorization of force covers activities both on foreign soil and in America.
In Han~div . R~inzsfeld5, 42 U.S. 507 (2004), the Supreme Court addressed the scope of the
AUMF. At least five Justices concluded that the AUMF authorized the President to detain a U.S.
citizen in the United States because "detention to prevent a combatant's return to the battlefield is a
fundamental incident of waging war" and is therefore included in the "necessary and appropriate
force" authorized by the Congress. Id. at 5 18-19 (plurality opinion of O'Connor, J.); see id. at 587
(Thomas, J., dissenting). These five Justices concluded that the AUMF "clearly and unmistakably
authorize[s]" the "fundaniental incident[s] of waging war." Id. at 5 18-19 (plurality opinion); see
id. at 587 (Thomas, J., dissenting).
Con~municationsin telligence targeted at the enemy is a fundamental incident of the use of
military force. Indeed, throughout history, signals intelligence has formed a critical part of waging
war. In the Civil War, each side tapped the telegraph lines of the other. In the World Wars, the
United States intercepted telegrams into and out of the country. The AUMF cannot be read to
exclude this long-recognized and essential authority to conduct communications intelligence
targeted at the enemy. We cannot fight a war blind. Because communications intelligence
activities constitute, to use the language of Hamdi, a fundamental incident of waging war, the
AUMF clearlv und unnzistakuhlj authorizes such activities directed against the communications of
our enemy. Accordingly, the President's "authority is at its maximum." Youngsrown Sheet & Tub?
Co. v. Sawyer, 343 U.S. 579,635 (1952) (Jackson, J., concurring); see Dames & Moore v. Regan,
453 U.S. 654, 668 (1981); cf: Y O U I I ~ S ~3O43W UI.IS,. at 585 (noting the absence of a statute "from
which [the asserted authority] c[ould] be fairly implied").
The President's authorization of targeted electronic surveillance by the NSA is also
consistent with the Foreign Intelligence Surveillance Act ("FISA"). Section 25 11(2)(f) oftitle 18
prov~desa, s relevant here, that the procedures of FISA and two chapters of title 18 "shall be the
exclusive means by which electronic surveillance.. . may be conducted." Section 109 ofFISA, in
turn, makes it unlawful to conduct electronic surveillance, "except as authorized by statute." 50
U.S.C. 5 1809(a)(l). Importantly, section 109's exception for electronic surveillance "authorized
by statute" is broad, especially considered in the context of surrounding provisions. Sec 18 U.S.C.
5 251 l(1) ("Except as otherwise specifically provided in this chapter any person who+a)
intentionally intercepts . . . any wire, oral, or electronic communication[] . . . shall be punished . . .
.") (emphasis added); id. 4 25 11(2)(e) (providing a defense to liability to individuals "conduct[ing]
electronic surveillance, . . . as authorized by thatAct[FISA]") (emphasis added).
By expressly and broadly excepting from its prohibition electronic surveillance undertaken
"as authorized by statute," section 109 of FISA permits an exception to the "procedures" of FISA
referred to in 18 U.S.C. a 251 1(2)(f) where authorized by another statute, even if the other
authorizing statute does not specifically amend section 25 11(2)(f). The AUMF satisfies section
109's requirement for statutory authorization of electronic surveillance, just as a majority of the
Court in Hanzdi concluded that it satisfies the requirement in 18 U.S.C. 9 4001(a) that no U.S.
citizen be detained by the United States "except pursuant to an Act of Congress." See Hu~ndi5, 42
U.S. at 519 (explaining that "it is of no moment that the AUMF does not use specific language of
detention"); sec id. at 587 (Thomas, J., dissenting).
Some might suggest that FISA could be read to require that a subsequent statutory
authorization must come in the form of an amendment to FISA itself. But under established
principles of statutory construction, the AUMF and FISA must be constnied in harmony to avoid
any potential conflict between FISA and the President's Article I1 authority as Commander in
Chief. See, e.g., Zad~yriasv . Davis, 533 U.S. 678, 689 (2001); INSv. Sf. Cvr, 533 U.S. 289, 300
(2001). Accordingly. any ambiguity as to whether the AUMF is a statute that satisfies the
requirements of FISA and allows electronic surveillance in the conflict with a1 Qaeda without
complying with FISA procedures must be resolved in favor ofan interpretation that is consistent
with the President's long-recognized authority.
The NSA activities described by the President are also consistent with the Fourth
Amendment and the protection of civil liberties. The Fourth Amendment's "central requirement is
one of reasonableness." Illinois v. McArthur, 53 1 U.S. 326,330 (2001) (internal quotation marks
omitted). For searches conducted in the course of ordinary criminal law enforcement,
reasonableness generally requires securing a warrant. See Bd. ofEduc, v. Earls, 536 U.S. 822, 828
(2002). Outside the ordinary criminal law enforcement context, however, the Supreme Court has,
at times, dispensed with the warrant, instead adjudging the reasonableness of a search under the
totality of the circumstances. See United States v. Knights, 534 U.S. 112, 118 (2001). In
particular, the Supreme Court has long recognized that "special needs, beyond the normal need for
law enforcement," can justify departure from the usual warrant requirement. Vernonia School Dis!.
47J v. Acton, 5 15 U.S. 646, 653 (1995); see also Ci@ ofIndianapolis v. Edmot~d5, 31 U.S. 32.41-
42 (2000) (striking down checkpoint where "primary purpose was to detect evidence of ordinary
criminal wrongdoing").
Foreign intelligence collection, especially in the midst of an armed conflict in which the
adversary has already launched catastrophic attacks within the United States, fits squarely within
the "special needs" exception to the warrant requirement. Foreign intelligence collection
undertaken to prevent further devastating attacks on our Nation serves the highest government
purpose through means other than traditional law enforcement. See In re Sealed Case, 3 10 F.3d at
745; United States v. Duggan, 743 F.2d 59. 72 (2d Cir. 1984) (recognizing that the Fourth
Amendment implications of foreign intelligence surveillance are far different from ordinary
wiretapping, because they are not principally used for criminal prosecution).
Intercepting comn~unicationsi nto and out of the United States of persons linked to al Qaeda
in order to detect and prevent a catastrophic attack is clearly reasonable. Reasonableness is
generally determined by "balancing the nature of the intnision on the individual's privacy against
the promotion of legitimate governmental interests." Earls, 536 U.S. at 829. There is undeniably
an important and legitimate privacy interest at stake with respect to the activities described by the
President. That must be balanced, however, against the Government's compelling interest in the
security of the Nation. see, e.g., Haig v. Agee, 453 U.S. 280, 307 (1981) ("It is obvious and
unarguable that no governmental interest is more con~pellingth an the security of the Nation.")
(citation and quotation marks omitted). The fact that the NSA activities are reviewed and
reauthorized approximately every 45 days to ensure that they continue to be necessary and
appropriate further demonstrates the reasonableness of these activities.
As explained above. the President determined that it was necessary following September 1 1
to create an early warning detection system. FISA could not have provided the speed and agility
required for the early warning detection system. In addition, any legislative change, other than the
AUMF, that the President might have sought specifically to create such an early warning system
would have been public and would have tipped off our enemies concerning our intelligence
limitations and capabilities. Nevertheless, I want to stress that the United States makes full use of
FISA to address the terrorist threat, and FISA has proven to be a very important tool, especially in
longer-term investigations. In addition, the United States is constantly assessing all available legal
options, taking full advantage of any developments in the law.
We hope this information is helpful
Sincerely,
William E. Moschella
Assistant Attorney General


16 posted on 12/22/2005 12:14:01 PM PST by laxin4him (They will know by our love not our picket lines)
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To: mnehrling

go for it please!


17 posted on 12/22/2005 12:14:14 PM PST by hipaatwo
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To: mnehrling

Don't bother me. I'd like to read it. My adobe hates my guts and won't work for me.


18 posted on 12/22/2005 12:14:35 PM PST by processing please hold (Islam and Christianity do not mix ----9-11 taught us that)
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To: Steel Wolf
Well stick that in your pipe and smoke it!

Yep .. and take note of the part of these leaks being illegal and puts our citizens at risk

19 posted on 12/22/2005 12:17:33 PM PST by Mo1 (Republicans protect Americans from Terrorists. Democrats protect Terrorists from Americans)
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To: advance_copy
This is fully compliant with the Constitution, which does not protect "privacy" for people who are having conversations with enemies of the United States.

Everyone but the left seems to understand this. I've never seen a bigger group of people who are so sensitive to the rights of the jihadists and America's enemies. They have tried to tie the president's hands on nearly every single tool at his disposal. And they are the same people who will scream the loudest when there's another attack.

20 posted on 12/22/2005 12:18:05 PM PST by Peach (The Clintons pardoned more terrorists than they ever captured or killed.)
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To: Mo1

The best part about that is that it is addressed to the leaker himself... Rockefeller.


21 posted on 12/22/2005 12:18:35 PM PST by nuffsenuff (Don't get stuck on Stupid - General Russ Honore Sept 21, 2005)
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To: pbrown

http://www.foxitsoftware.com/pdf/rd_intro.php


22 posted on 12/22/2005 12:19:07 PM PST by smith288 (Peace at all cost makes for tyranny free of charge...)
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To: All; MrNatural
Okay, so what's the bottom line of thie memo?

Under Article 11 of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty. See, e.g., Prize Cases, 67 U.S. (2 Black) 635, 668 (1 863) (stressing that if the Nation is invaded, "the President is not only authorized but hound to resist by force . . . . without waiting for any special legislative authority");

So how does that relate to Al Qaida threat in the United States?

The AUMF authorizes the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of September 1 1, 2001, . . . in order to prevent any future acts of international terrorism against the United States." 5 2(a),

But wasn't Al Qaida only in Afghanistan?

The AUMF cannot be read as limited to authorizing the use of force against Afghanistan, as some have argued. Indeed, those who directly "committed" the attacks of September 11 resided in the United States for months before those attacks. The reality of the September I 1 plot demonstrates that the authorization of force covers activities both on foreign soil and in America.

I don't know about you all, but this sure sounds like a winning arguement to me.

23 posted on 12/22/2005 12:19:40 PM PST by Steel Wolf (* No sleep till Baghdad! *)
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To: nuffsenuff

*L* .. wonder if Rockefeller will be in the Sunday Morning shows ?


24 posted on 12/22/2005 12:20:11 PM PST by Mo1 (Republicans protect Americans from Terrorists. Democrats protect Terrorists from Americans)
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To: laxin4him

As Justice Byron White recognized almost 40 years ago, Presidents have long exercised the authority to conduct warrantless surveillance for national security purposes, and a warrant is unnecessary "if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable."

There are so many juicy tidbits in there, the left won't know what hit them. Half of them sound like folks who slept at a Holiday Inn last night and think they know the law.


25 posted on 12/22/2005 12:21:08 PM PST by Peach (The Clintons pardoned more terrorists than they ever captured or killed.)
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To: pbrown

My adobe gave out on me too; don't know what happened but big problems if I try to download.


26 posted on 12/22/2005 12:21:40 PM PST by Peach (The Clintons pardoned more terrorists than they ever captured or killed.)
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To: laxin4him
Dear Chairmen Roberts and Hoekstra. Vice Chairman Rockefeller, and Ranking Member Harman:

As you know, in responsc to unauthorized disclosures in the media, the President has described certain activitics of the National Security Agency ("NSA") that he has authorized since shortly after Septcmber 1 1,200 1 . As described by the President, the NSA intercepts certain international communications into and out of the United States of people linked to al Qaeda or an affiliated terrorist organization. The purpose of these intercepts is to establish an early warning system to detect and prcvent another catastrophic terrorist attack on the IJnited States.

The President has made clear that he will use his constitutional and statutory authorities to protect the Amer~canp eople from further terrorist attacks, and the NSA activities the President described are part of that effort.

Leaders of the Congress were briefed on these activities more than a dozen tlnies.

The purpose of this letter is to provide an additional brief summary of the legal authority supporting the NSA activities described by the President.

As an initial matter, I emphasize a few points. The President stated that these activities are " crucial to our national security." The President further explained that "the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country."

These critical national security activities remain classified. All United States laws and policies governing the protection and nondisclosure of national security information. including the information relating to the activities described by the President, remain in full force and effect. The unauthorized disclosure of classified infomiation violates federal criminal law. The Government may provide further classified briefings to the Congress on these activities in an appropriate manner.

Any such briefings will be conducted in a manner that will not endanger national security. Under Article 11 of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty.

See, e.g., Prize Cases, 67 U.S. (2 Black) 635, 668 (1 863) (stressing that if the Nation is invaded, "the President is not only authorized but hound to resist by force . . . . without waiting for any special legislative authority"); Campbell v. Clinton, 203 F.3d 19,27 (D.C. Cir. 2000) (Silberman, J., concurring) ("[Tlhe Prize Cases . . . stand for the proposition that the President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected."); id. at 40 (Tatel, J., concurring).

The Congress recognized this constitutional authority in the preamble to the Authorization for the Use of Military Force ("AUMF") of September 18, 2001, 115 Stat. 224 (2001) ("[Tlhe President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."), and in the War Powers Resolution, see 50 U.S.C. 8 1541(c) ("The constitutional powers of the President as Commander in Chief to introduce United States Armed Forces into hostilities[] . . . [extend to] a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.").

This constitutional authority includes the authority to order warrantless foreign intelligence surveillance within the United States, as all federal appellate courts, including at least four circuits, to have addressed the issue have concluded. See, e.g., In re Sealed Case, 310 F.3d 7 17, 742 (FISA Ct. of Review 2002) ("[AIII the other courts to have decided the issue [have] 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. . . .").

The Supreme Court has said that warrants are generally required in the context of purely donrestic threats. hut it expressly distinguished,foreign threats. See United States v. United States District Cotrrt, 407 U.S. 297,308 (1972). As Justice Byron White recognized almost 40 years ago, Presidents have long exercised the authority to conduct warrantless surveillance for national security purposes, and a warrant is unnecessary "if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable." Katz v. United States, 389 U.S. 347, 363-64 (1967) (White, J., concurring).

The President's constitutional authority to direct the NSA to conduct the activities he described is supplemented by statutory authority under the AUMF. The AUMF authorizes the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of September 1 1, 2001, . . . in order to prevent any future acts of international terrorism against the United States." 5 2(a), The AUMF clearly contemplates action within the United States, Jee also id. pmbl. (the attacks of September 1 I "render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad").

The AUMF cannot be read as limited to authorizing the use of force against Afghanistan, as some have argued. Indeed, those who directly "committed" the attacks of September 11 resided in the United States for months before those attacks. The reality of the September I 1 plot demonstrates that the authorization of force covers activities both on foreign soil and in America. In Han~div . R~inzsfeld5, 42 U.S. 507 (2004), the Supreme Court addressed the scope of the AUMF.

At least five Justices concluded that the AUMF authorized the President to detain a U.S. citizen in the United States because "detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war" and is therefore included in the "necessary and appropriate force" authorized by the Congress. Id. at 5 18-19 (plurality opinion of O'Connor, J.); see id. at 587 (Thomas, J., dissenting). These five Justices concluded that the AUMF "clearly and unmistakably authorize[s]" the "fundaniental incident[s] of waging war." Id. at 5 18-19 (plurality opinion); see id. at 587 (Thomas, J., dissenting). Con~municationsin telligence targeted at the enemy is a fundamental incident of the use of military force.

Indeed, throughout history, signals intelligence has formed a critical part of waging war. In the Civil War, each side tapped the telegraph lines of the other. In the World Wars, the United States intercepted telegrams into and out of the country. The AUMF cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy. We cannot fight a war blind. Because communications intelligence activities constitute, to use the language of Hamdi, a fundamental incident of waging war, the AUMF clearlv und unnzistakuhlj authorizes such activities directed against the communications of our enemy.

Accordingly, the President's "authority is at its maximum." Youngsrown Sheet & Tub? Co. v. Sawyer, 343 U.S. 579,635 (1952) (Jackson, J., concurring); see Dames & Moore v. Regan, 453 U.S. 654, 668 (1981); cf: Y O U I I ~ S ~3O43W UI.IS,. at 585 (noting the absence of a statute "from which [the asserted authority] c[ould] be fairly implied").

The President's authorization of targeted electronic surveillance by the NSA is also consistent with the Foreign Intelligence Surveillance Act ("FISA"). Section 25 11(2)(f) oftitle 18 prov~desa, s relevant here, that the procedures of FISA and two chapters of title 18 "shall be the exclusive means by which electronic surveillance.. . may be conducted." Section 109 ofFISA, in turn, makes it unlawful to conduct electronic surveillance, "except as authorized by statute." 50 U.S.C. 5 1809(a)(l). Importantly, section 109's exception for electronic surveillance "authorized by statute" is broad, especially considered in the context of surrounding provisions. Sec 18 U.S.C. 5 251 l(1) ("Except as otherwise specifically provided in this chapter any person who+a) intentionally intercepts . . . any wire, oral, or electronic communication[] . . . shall be punished . . . .") (emphasis added); id. 4 25 11(2)(e) (providing a defense to liability to individuals "conduct[ing] electronic surveillance, . . . as authorized by thatAct[FISA]") (emphasis added).

By expressly and broadly excepting from its prohibition electronic surveillance undertaken "as authorized by statute," section 109 of FISA permits an exception to the "procedures" of FISA referred to in 18 U.S.C. a 251 1(2)(f) where authorized by another statute, even if the other authorizing statute does not specifically amend section 25 11(2)(f).

The AUMF satisfies section 109's requirement for statutory authorization of electronic surveillance, just as a majority of the Court in Hanzdi concluded that it satisfies the requirement in 18 U.S.C. 9 4001(a) that no U.S. citizen be detained by the United States "except pursuant to an Act of Congress." See Hu~ndi5, 42 U.S. at 519 (explaining that "it is of no moment that the AUMF does not use specific language of detention"); sec id. at 587 (Thomas, J., dissenting).

Some might suggest that FISA could be read to require that a subsequent statutory authorization must come in the form of an amendment to FISA itself. But under established principles of statutory construction, the AUMF and FISA must be constnied in harmony to avoid any potential conflict between FISA and the President's Article I1 authority as Commander in Chief. See, e.g., Zad~yriasv . Davis, 533 U.S. 678, 689 (2001); INSv. Sf. Cvr, 533 U.S. 289, 300 (2001).

Accordingly. any ambiguity as to whether the AUMF is a statute that satisfies the requirements of FISA and allows electronic surveillance in the conflict with a1 Qaeda without complying with FISA procedures must be resolved in favor ofan interpretation that is consistent with the President's long-recognized authority.

The NSA activities described by the President are also consistent with the Fourth Amendment and the protection of civil liberties. The Fourth Amendment's "central requirement is one of reasonableness." Illinois v. McArthur, 53 1 U.S. 326,330 (2001) (internal quotation marks omitted).

For searches conducted in the course of ordinary criminal law enforcement, reasonableness generally requires securing a warrant. See Bd. ofEduc, v. Earls, 536 U.S. 822, 828 (2002).

Outside the ordinary criminal law enforcement context, however, the Supreme Court has, at times, dispensed with the warrant, instead adjudging the reasonableness of a search under the totality of the circumstances. See United States v. Knights, 534 U.S. 112, 118 (2001). In particular, the Supreme Court has long recognized that "special needs, beyond the normal need for law enforcement," can justify departure from the usual warrant requirement. Vernonia School Dis!. 47J v. Acton, 5 15 U.S. 646, 653 (1995); see also Ci@ ofIndianapolis v. Edmot~d5, 31 U.S. 32.41- 42 (2000) (striking down checkpoint where "primary purpose was to detect evidence of ordinary criminal wrongdoing").

Foreign intelligence collection, especially in the midst of an armed conflict in which the adversary has already launched catastrophic attacks within the United States, fits squarely within the "special needs" exception to the warrant requirement. Foreign intelligence collection undertaken to prevent further devastating attacks on our Nation serves the highest government purpose through means other than traditional law enforcement. See In re Sealed Case, 3 10 F.3d at 745; United States v. Duggan, 743 F.2d 59. 72 (2d Cir. 1984) (recognizing that the Fourth Amendment implications of foreign intelligence surveillance are far different from ordinary wiretapping, because they are not principally used for criminal prosecution).

Intercepting comn~unicationsi nto and out of the United States of persons linked to al Qaeda in order to detect and prevent a catastrophic attack is clearly reasonable. Reasonableness is generally determined by "balancing the nature of the intnision on the individual's privacy against the promotion of legitimate governmental interests." Earls, 536 U.S. at 829.

There is undeniably an important and legitimate privacy interest at stake with respect to the activities described by the President. That must be balanced, however, against the Government's compelling interest in the security of the Nation. see, e.g., Haig v. Agee, 453 U.S. 280, 307 (1981) ("It is obvious and unarguable that no governmental interest is more con~pellingth an the security of the Nation.") (citation and quotation marks omitted).

The fact that the NSA activities are reviewed and reauthorized approximately every 45 days to ensure that they continue to be necessary and appropriate further demonstrates the reasonableness of these activities.

As explained above. the President determined that it was necessary following September 1 1 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system.

In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities. Nevertheless, I want to stress that the United States makes full use of FISA to address the terrorist threat, and FISA has proven to be a very important tool, especially in longer-term investigations.

In addition, the United States is constantly assessing all available legal options, taking full advantage of any developments in the law.

We hope this information is helpful

Sincerely,
William E. Moschella
Assistant Attorney General

27 posted on 12/22/2005 12:21:50 PM PST by technomage
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To: hipaatwo
I wonder when the NYT will refer to this letter on page 1, above the fold?
28 posted on 12/22/2005 12:22:51 PM PST by Mike Darancette (Mesocons for Rice '08)
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To: hipaatwo

When was this letter presented to the senate..in '01..or more recent?


29 posted on 12/22/2005 12:23:00 PM PST by processing please hold (Islam and Christianity do not mix ----9-11 taught us that)
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To: Peach
Because communications intelligence activities constitute, to use the language of Hamdi, a fundamental incident of waging war, the AUMF clearly und unmistakably authorizes such activities directed against the communications of our enemy.

Check and mate! Moonbats will be very disappointed.
30 posted on 12/22/2005 12:23:49 PM PST by advance_copy (Stand for life, or nothing at all)
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To: technomage
As an initial matter, I emphasize a few points. The President stated that these activities are " crucial to our national security." The President further explained that "the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country." These critical national security activities remain classified. All United States laws and policies governing the protection and nondisclosure of national security information. including the information relating to the activities described by the President, remain in full force and effect. The unauthorized disclosure of classified infomiation violates federal criminal law. The Government may provide further classified briefings to the Congress on these activities in an appropriate manner. Any such briefings will be conducted in a manner that will not endanger national security.

That's about as strong of a "beatdown" as you'll ever see come from an executive agency to the Senate.
31 posted on 12/22/2005 12:23:59 PM PST by July 4th (A vacant lot cancelled out my vote for Bush.)
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To: pbrown

TODAY!


32 posted on 12/22/2005 12:24:19 PM PST by nuffsenuff (Don't get stuck on Stupid - General Russ Honore Sept 21, 2005)
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To: smith288

Thank you.


33 posted on 12/22/2005 12:24:35 PM PST by processing please hold (Islam and Christianity do not mix ----9-11 taught us that)
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To: pbrown

today


34 posted on 12/22/2005 12:24:38 PM PST by hipaatwo
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To: hipaatwo

As Rush pointed out today, Clinton, who has an opinion on everything Bush does, has been strangely quiet on this one.


35 posted on 12/22/2005 12:26:04 PM PST by VeniVidiVici (What? Me worry?)
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To: ASA Vet

The MI list may be interested in this.


36 posted on 12/22/2005 12:26:19 PM PST by Steel Wolf (* No sleep till Baghdad! *)
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To: July 4th

It would have been perfect had he added the following:

"Mr. Rockefeller, you have the right to remain silent..."


37 posted on 12/22/2005 12:26:56 PM PST by advance_copy (Stand for life, or nothing at all)
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To: Peach

Me too. Every time I try it, my computer freezes on me and I have to reboot in order to get back to square one. Now when I see PDF on an article, I break out in a cold sweat. :-)


38 posted on 12/22/2005 12:27:33 PM PST by processing please hold (Islam and Christianity do not mix ----9-11 taught us that)
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To: VeniVidiVici; Mo1

I just sent it to Drudge. Let's hope he posts it.


39 posted on 12/22/2005 12:28:55 PM PST by hipaatwo
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To: Mo1

The best I could do....

U. S. Department of' Justice
Office of Legislative Affairs D, .C.

December 22,2005

The Honorable Pat Roberts
The Honorable John D. Rockefeller, IV
Chairman Vice Chairman

Senate Select Committcc on Intelligence Senate Select Committee on Intelligence
United States Senatc United States Senate
Washington, D.C. 205 10 Washington, D.C. 205 10

Thc Honorable Peter Hoekstra
Chairman

Permanent Sclect Committee
on Intelligence

U.S. House of Representatives
Washington, D.C. 205 15

The Honorable Jane Harman
Ranking Minority Member
Permanent Select Committee
on Intelligence

U.S. House of Representatives
Washington, D.C. 205 15

Dear Chairmen Roberts and Hoekstra. Vice Chairman Rockefeller, and Ranking Member Harman:

As you know, in responsc to unauthorized disclosures in the media, the President has described certain activitics of the National Security Agency ("NSA") that he has authorized since shortly after Septcmber 1 1,200 1 . As described by the President, the NSA intercepts certain international communications into and out of the United States of people linked to al Qaeda or an affiliated terrorist organization. The purpose of these intercepts is to establish an early warning system to detect and prcvent another catastrophic terrorist attack on the IJnited States. The President has made clear that he will use his constitutional and statutory authorities to protect the Amer~canp eople from further terrorist attacks, and the NSA activities the President described are part of that effort. Leaders of the Congress were briefed on these activities more than a dozen
tlnies.

The purpose of this letter is to provide an additional brief summary of the legal authority supporting the NSA activities described by the President. As an initial matter, I emphasize a few points. The President stated that these activities are " crucial to our national security." The President further explained that "the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country." These critical national security activities remain classified. All United States laws and policies governing the protection and nondisclosure of national security information. including the information relating to the
activities described by the President, remain in full force and effect. The unauthorized disclosure of classified infomiation violates federal criminal law. The Government may provide further classified briefings to the Congress on these activities in an appropriate manner. Any such
briefings will be conducted in a manner that will not endanger national security.

Under Article 11 of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty. See, e.g., Prize Cases, 67 U.S. (2 Black) 635, 668 (1 863) (stressing that if the Nation is invaded, "the President is not only authorized but hound to resist by force . . . . without waiting for any special legislative authority"); Campbell v. Clinton, 203 F.3d 19,27 (D.C. Cir. 2000) (Silberman, J., concurring) ("[Tlhe Prize Cases . . . stand for the proposition that the President has independent authority to repel aggressive acts by third parties
even without specific congressional authorization, and courts may not review the level of force selected."); id. at 40 (Tatel, J., concurring). The Congress recognized this constitutional authority in the preamble to the Authorization for the Use of Military Force ("AUMF") of September 18, 2001, 115 Stat. 224 (2001) ("[Tlhe President has authority under the Constitution to take action to
deter and prevent acts of international terrorism against the United States."), and in the War Powers Resolution, see 50 U.S.C. 8 1541(c) ("The constitutional powers of the President as Commander in Chief to introduce United States Armed Forces into hostilities[] . . . [extend to] a national
emergency created by attack upon the United States, its territories or possessions, or its armed forces.").

This constitutional authority includes the authority to order warrantless foreign intelligence surveillance within the United States, as all federal appellate courts, including at least four circuits, to have addressed the issue have concluded. See, e.g., In re Sealed Case, 310 F.3d 7 17, 742 (FISA Ct. of Review 2002) ("[AIII the other courts to have decided the issue [have] 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. . . ."). The Supreme Court has said that warrants are generally required in the context of purely donrestic threats. hut it expressly distinguished,foreign threats. See United States v. United States District Cotrrt, 407 U.S. 297,308 (1972). As Justice Byron White recognized almost 40 years ago,
Presidents have long exercised the authority to conduct warrantless surveillance for national security purposes, and a warrant is unnecessary "if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and
authorized electronic surveillance as reasonable." Katz v. United States, 389 U.S. 347, 363-64 (1967) (White, J., concurring).

The President's constitutional authority to direct the NSA to conduct the activities he described is supplemented by statutory authority under the AUMF. The AUMF authorizes the
President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of September 1 1, 2001, . . . in order to prevent any future acts of international terrorism against the United States." 5 2(a), The AUMF clearly contemplates action within the United States, Jee also id. pmbl. (the attacks of September 1 I "render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad"). The AUMF cannot be read as limited to authorizing the use of force against Afghanistan, as some
have argued. Indeed, those who directly "committed" the attacks of September 11 resided in the United States for months before those attacks. The reality of the September I 1 plot demonstrates that the authorization of force covers activities both on foreign soil and in America. In Han~div . R~inzsfeld5, 42 U.S. 507 (2004), the Supreme Court addressed the scope of the AUMF. At least five Justices concluded that the AUMF authorized the President to detain a U.S.
citizen in the United States because "detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war" and is therefore included in the "necessary and appropriate force" authorized by the Congress. Id. at 5 18-19 (plurality opinion of O'Connor, J.); see id. at 587 (Thomas, J., dissenting). These five Justices concluded that the AUMF "clearly and unmistakably
authorize[s]" the "fundaniental incident[s] of waging war." Id. at 5 18-19 (plurality opinion); see id. at 587 (Thomas, J., dissenting).

Con~municationsin telligence targeted at the enemy is a fundamental incident of the use of military force. Indeed, throughout history, signals intelligence has formed a critical part of waging war. In the Civil War, each side tapped the telegraph lines of the other. In the World Wars, the United States intercepted telegrams into and out of the country. The AUMF cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy. We cannot fight a war blind. Because communications intelligence
activities constitute, to use the language of Hamdi, a fundamental incident of waging war, the AUMF clearlv und unnzistakuhlj authorizes such activities directed against the communications of our enemy. Accordingly, the President's "authority is at its maximum." Youngsrown Sheet & Tub? Co. v. Sawyer, 343 U.S. 579,635 (1952) (Jackson, J., concurring); see Dames & Moore v. Regan, 453 U.S. 654, 668 (1981); cf: Y O U I I ~ S ~3O43W UI.IS,. at 585 (noting the absence of a statute "from which [the asserted authority] c[ould] be fairly implied").

The President's authorization of targeted electronic surveillance by the NSA is also consistent with the Foreign Intelligence Surveillance Act ("FISA"). Section 25 11(2)(f) oftitle 18 prov~desa, s relevant here, that the procedures of FISA and two chapters of title 18 "shall be the
exclusive means by which electronic surveillance.. . may be conducted." Section 109 ofFISA, in turn, makes it unlawful to conduct electronic surveillance, "except as authorized by statute." 50 U.S.C. 5 1809(a)(l). Importantly, section 109's exception for electronic surveillance "authorized by statute" is broad, especially considered in the context of surrounding provisions. Sec 18 U.S.C. 5 251 l(1) ("Except as otherwise specifically provided in this chapter any person who+a) intentionally intercepts . . . any wire, oral, or electronic communication[] . . . shall be punished . . .
.") (emphasis added); id. 4 25 11(2)(e) (providing a defense to liability to individuals "conduct[ing] electronic surveillance, . . . as authorized by thatAct[FISA]") (emphasis added).

By expressly and broadly excepting from its prohibition electronic surveillance undertaken "as authorized by statute," section 109 of FISA permits an exception to the "procedures" of FISA referred to in 18 U.S.C. a 251 1(2)(f) where authorized by another statute, even if the other
authorizing statute does not specifically amend section 25 11(2)(f). The AUMF satisfies section 109's requirement for statutory authorization of electronic surveillance, just as a majority of the Court in Hanzdi concluded that it satisfies the requirement in 18 U.S.C. 9 4001(a) that no U.S. citizen be detained by the United States "except pursuant to an Act of Congress." See Hu~ndi5, 42 U.S. at 519 (explaining that "it is of no moment that the AUMF does not use specific language of detention"); sec id. at 587 (Thomas, J., dissenting).

Some might suggest that FISA could be read to require that a subsequent statutory authorization must come in the form of an amendment to FISA itself. But under established principles of statutory construction, the AUMF and FISA must be constnied in harmony to avoid any potential conflict between FISA and the President's Article I1 authority as Commander in Chief. See, e.g., Zad~yriasv . Davis, 533 U.S. 678, 689 (2001); INSv. Sf. Cvr, 533 U.S. 289, 300 (2001). Accordingly. any ambiguity as to whether the AUMF is a statute that satisfies the requirements of FISA and allows electronic surveillance in the conflict with a1 Qaeda without complying with FISA procedures must be resolved in favor ofan interpretation that is consistent with the President's long-recognized authority.

The NSA activities described by the President are also consistent with the Fourth Amendment and the protection of civil liberties. The Fourth Amendment's "central requirement is one of reasonableness." Illinois v. McArthur, 53 1 U.S. 326,330 (2001) (internal quotation marks omitted). For searches conducted in the course of ordinary criminal law enforcement, reasonableness generally requires securing a warrant. See Bd. ofEduc, v. Earls, 536 U.S. 822, 828
(2002). Outside the ordinary criminal law enforcement context, however, the Supreme Court has, at times, dispensed with the warrant, instead adjudging the reasonableness of a search under the totality of the circumstances. See United States v. Knights, 534 U.S. 112, 118 (2001). In particular, the Supreme Court has long recognized that "special needs, beyond the normal need for law enforcement," can justify departure from the usual warrant requirement. Vernonia School Dis!. 47J v. Acton, 5 15 U.S. 646, 653 (1995); see also Ci@ ofIndianapolis v. Edmot~d5, 31 U.S. 32.41-
42 (2000) (striking down checkpoint where "primary purpose was to detect evidence of ordinary criminal wrongdoing").

Foreign intelligence collection, especially in the midst of an armed conflict in which the adversary has already launched catastrophic attacks within the United States, fits squarely within the "special needs" exception to the warrant requirement. Foreign intelligence collection undertaken to prevent further devastating attacks on our Nation serves the highest government purpose through means other than traditional law enforcement. See In re Sealed Case, 3 10 F.3d at 745; United States v. Duggan, 743 F.2d 59. 72 (2d Cir. 1984) (recognizing that the Fourth Amendment implications of foreign intelligence surveillance are far different from ordinary wiretapping, because they are not principally used for criminal prosecution).
Intercepting comn~unicationsi nto and out of the United States of persons linked to al Qaeda in order to detect and prevent a catastrophic attack is clearly reasonable. Reasonableness is generally determined by "balancing the nature of the intnision on the individual's privacy against
the promotion of legitimate governmental interests." Earls, 536 U.S. at 829. There is undeniably an important and legitimate privacy interest at stake with respect to the activities described by the President. That must be balanced, however, against the Government's compelling interest in the security of the Nation. see, e.g., Haig v. Agee, 453 U.S. 280, 307 (1981) ("It is obvious and
unarguable that no governmental interest is more con~pellingth an the security of the Nation.")
(citation and quotation marks omitted). The fact that the NSA activities are reviewed and reauthorized approximately every 45 days to ensure that they continue to be necessary and appropriate further demonstrates the reasonableness of these activities.

As explained above. the President determined that it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system. In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence
limitations and capabilities. Nevertheless, I want to stress that the United States makes full use of FISA to address the terrorist threat, and FISA has proven to be a very important tool, especially in longer-term investigations. In addition, the United States is constantly assessing all available legal options, taking full advantage of any developments in the law.

We hope this information is helpful

Sincerely,

William E. Moschella
Assistant Attorney General


40 posted on 12/22/2005 12:30:10 PM PST by b4its2late (Liberals are good examples of why some animals eat their young.)
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To: nuffsenuff

Thanks. I bet Rockefeller is sh--ing gold bricks about now. Ohhh, but to be a fly on his wall....


41 posted on 12/22/2005 12:31:09 PM PST by processing please hold (Islam and Christianity do not mix ----9-11 taught us that)
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To: laxin4him

See, e.g., Prize Cases, 67 U.S. (2 Black) 635,
668 (1 863) (stressing that if the Nation is invaded, "the President is not only authorized but hound
to resist by force . . . . without waiting for any special legislative authority"); Campbell v. Clinton,
203 F.3d 19,27 (D.C. Cir. 2000) (Silberman, J., concurring) ("[Tlhe Prize Cases . . . stand for the
proposition that the President has independent authority to repel aggressive acts by third parties
even without specific congressional authorization, and courts may not review the level of force
selected."); id. at 40 (Tatel, J., concurring).

In other words, the president didn't even need to consult with Congress. WOWOW!


42 posted on 12/22/2005 12:32:24 PM PST by Peach (The Clintons pardoned more terrorists than they ever captured or killed.)
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To: pbrown

YaaHoo.......


43 posted on 12/22/2005 12:32:29 PM PST by newconhere
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To: pbrown

I almost pity him... Almost.


44 posted on 12/22/2005 12:32:34 PM PST by nuffsenuff (Don't get stuck on Stupid - General Russ Honore Sept 21, 2005)
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To: Mo1

Been trying but cannot get it off the clip board or the copy I emailed to myself. At a loss to know how.


45 posted on 12/22/2005 12:33:23 PM PST by YOUGOTIT
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To: Mo1

Thanks for the ping. WTG NRO!


46 posted on 12/22/2005 12:34:20 PM PST by defconw (Allen/Pence2008 Merry MOOSEMUSS!)
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To: Peach
"Everyone but the left seems to understand this. I've never seen a bigger group of people who are so sensitive to the rights of the jihadists and America's enemies."

This is because many of these liberals are also enemies of the United States, in that they are working to change the traditional way we live and govern ourselves. So what you have before you are different enemies joining forces for a common goal, the destruction of America as we know it.

The Leftists, in their blind drive for power, probably do not understand that even a mighty nation like the U.S. can eventually be brought down or heavily damaged by an enemy like al Quaida if we don't fight back with vigor. Hence, what they hope to see is the islamofascists do just enough damage to our country that a power shift will occur within, to their favor of course.

47 posted on 12/22/2005 12:35:02 PM PST by TheCrusader ("The frenzy of the mohammedans has devastated the Churches of God" Pope Urban II ~ 1097A.D.)
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To: newconhere

Double Yah Hoo!!!!


48 posted on 12/22/2005 12:35:05 PM PST by processing please hold (Islam and Christianity do not mix ----9-11 taught us that)
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To: YOUGOTIT

It was posted above ... thank you for trying :0)


49 posted on 12/22/2005 12:35:22 PM PST by Mo1 (Republicans protect Americans from Terrorists. Democrats protect Terrorists from Americans)
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To: An.American.Expatriate; ASA.Ranger; ASA Vet; Atigun; beyond the sea; BIGLOOK; ...
MI Ping

tip off by steel wolf

50 posted on 12/22/2005 12:35:30 PM PST by ASA Vet (Those who know don't talk, those who talk don't know.)
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