The NSA Search Engine is a Keyhole to You

[Octafish]

22. ''When the president does it, it's not illegal.'' -- Richard Milhous Nixon, Crook

Not so. Yet, presidents continue to act as it is.

Reviving the Nixon Doctrine: NSA Spying, the
Commander-In-Chief, and Excutive Power in the
War on Terror

David Cole
Georgetown University Law Center
2006

EXCERPT...

"When the President does it, that means that it is not illegal."1
So Richard Nixon infamously defended his approval of a plan to engage in
warrantless wiretapping of Americans involved in the antiwar movement of
the 1970s. For thirty years Nixon's defense has stood as the apogee of
presidential arrogance. Nixon was ultimately proved wrong. The
wiretapping plan was shelved when FBI Director J. Edgar Hoover, of all
people, objected to it. Nixon's approval of the program was listed in the
articles of impeachment, and he was forced to resign. Nixon learned the hard
way that presidents are not above the law.

President George W. Bush appears not to have learned that lesson.
His defense of the National Security Agency's warrantless wiretapping of
Americans resurrects the Nixon doctrine with one modification. For Bush,
when the Commander-in-Chief does it, it is not illegal. In a memorandum to
Congress, the Bush Administration argued that the Commander-in-Chief
may not be restricted in his choice of the "means and methods of engaging
the enemy," and that President Bush is therefore free to wiretap Americans
without court approval in the "war on terror" even though Congress has
made it a crime to do so.2

This is not the first time President Bush has
asserted uncheckable executive power in the "war on terror." He has claimed
similar powers with respect to torture; cruel, inhuman, and degrading
treatment; and detention of so-called "enemy combatants." These claims to
unchecked power have triggered strong negative reactions from
conservatives and liberals, Republicans and Democrats, and Supreme Court
Justices and members of Congress. Yet these rebukes seem not to affect the
president, who continues to assert the authority.

The administration’s stance with respect to National Security
Agency (NSA) spying is emblematic of its approach to the war on terror. At
virtually every juncture, it has taken overly aggressive positions that
unnecessarily run roughshod over fundamental principles of the rule of law.
By doing so, the president has sparked negative feedback at home and
abroad. This pattern of overreaching is unnecessary to keep us secure and is
in fact likely to make us less safe, as it divides our nation and plays into the
terrorists’ hands by fueling anti-American sentiment abroad.

This essay will argue that the administration’s defense of the NSA
spying program is fundamentally flawed, both as a matter of law and as a
matter of national security policy. The administration makes three legal
arguments in defense of the policy, contending that: (1) Congress authorized
the program without saying so when it authorized the use of military force
against al Qaeda; (2) the Commander-in-Chief has inherent and uncheckable
authority under Article II of the Constitution to conduct such warrantless
wiretapping, notwithstanding a criminal prohibition; and (3) the program is
consistent with the Fourth Amendment.3

Each argument fails. The
argument that Congress authorized the program defies basic principles of
statutory construction. The claim that the Commander-in-Chief has
uncheckable authority with respect to "the means and methods of engaging
the enemy" is contrary to the text of the Constitution, the structure of checks
and balances, and a long line of Supreme Court precedent. And no Fourth
Amendment precedent supports the notion that the president may wiretap
Americans without probable cause or a warrant.

As a matter of national security policy, the administration defends
the program by claiming that if al Qaeda is calling into the United States, we
should be listening to that call. Few dispute that proposition. But under
existing law, the president did not need to authorize conduct in violation of
the Foreign Intelligence Surveillance Act (FISA)4
to track those calls.

Accordingly, the NSA program presumably must be broader than that.
Second, to the extent the president seeks to engage in more widespread
surveillance than that authorized by FISA, the proper recourse was to ask
Congress to change the law. The administration sent what ultimately became
the USA PATRIOT ACT (Patriot Act)5
to Congress within days of the
terrorist attacks of September 11, 2001, and the Patriot Act made several
revisions to FISA. But the president chose not to ask Congress to change
FISA to authorize this particular program, and instead ordered that the law be
violated in secret. That is not a permissible option in a democracy.
Moreover, had the president pursued the legal avenue for changing the law, it
is likely Congress would have extended him authority to do what was
necessary, and the program would have generated far less attention and
controversy than it has today. The controversy surrounding the program
centers not so much on the surveillance itself, but on the fact that the
president has asserted unchecked authority to violate criminal law in secret.
There would have been far less controversy, and far less public disclosure,
had the president followed the law.

SOURCE PDF: http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1404&context=facpub&sei-redir=1&referer=http%3A%2F%2Fscholar.google.com%2Fscholar_url%3Fhl%3Den%26q%3Dhttp%3A%2F%2Fscholarship.law.georgetown.edu%2Fcgi%2Fviewcontent.cgi%253Farticle%253D1404%2526context%253Dfacpub%26sa%3DX%26scisig%3DAAGBfm2Nz2lXaPDdNuO_mwhxFrLKz58h0Q%26oi%3Dscholarr#search=%22http%3A%2F%2Fscholarship.law.georgetown.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1404%26context%3Dfacpub%22

Members of the government -- often unknown or secret -- possessing secret spying powers on the People are not only un-constitutional, it's why the constitution was written -- to keep the State from having unchecked power on the People.