Reidblog [The Reid Report blog]

The National Security Agency / Central Security Service (NSA/CSS) is the largest United States government intelligence agency. It is responsible for the collection and analysis of foreign communications and for the security of US government communications against similar agencies elsewhere. Established by a U.S. presidential executive order, the NSA works closely with the Department of Defense and is typically directed by a military officer...

Do you people not understand that different agencies operate under different statutes? If Mr. Bush had some probable cause to conduct a domestic law enforcement operation via the FBI, he STILL would have needed a warrant... We're talking NSA here -- essentially a component of Bush's military enterprise (which is probably why he used it instead of the FBI, to shield himself under the John Yoo cloak of "wartime powers") As for the Truong case -- the supposed legal precedent cited by Curt, Powerline and other desperate wingers in defense of Mr. Bush, ThinkProgress debunks this particular myth better than I could:

The Truong case was decided in 1978 — the same year FISA was passed — and did not deal with the FISA law. As the court noted right before the excerpt, "Truong dealt with a pre-FISA surveillance… it had no occasion to consider the application of the statute…” The Truong case dealt with the President’s power in the absence of a congressional statute. So the right is citing caselaw that predates the law in question ...

More relevant is the Katz case, which seems to be the prevailing caselaw relevant to our current mess, having been decided in 1980, two years after FISA became law:

Warrantless ''National Security'' Electronic Surveillance.--In Katz v. United States,151 Justice White sought to preserve for a future case the possibility that in ''national security cases'' electronic surveillance upon the authorization of the President or the Attorney General could be permissible without prior judicial approval. The Executive Branch then asserted the power to wiretap and to ''bug'' in two types of national security situations, against domestic subversion and against foreign intelligence operations, first basing its authority on a theory of ''inherent'' presidential power and then in the Supreme Court withdrawing to the argument that such surveillance was a ''reasonable'' search and seizure and therefore valid under the Fourth Amendment. Unanimously, the Court held that at least in cases of domestic subversive investigations, compliance with the warrant provisions of the Fourth Amendment was required.152 Whether or not a search was reasonable, wrote Justice Powell for the Court, was a question which derived much of its answer from the warrant clause; except in a few narrowly circumscribed classes of situations, only those searches conducted pursuant to warrants were reasonable. The Government's duty to preserve the national security did not override the gurarantee that before government could invade the privacy of its citizens it must present to a neutral magistrate evidence sufficient to support issuance of a warrant authorizing that invasion of privacy.153 This protection was even more needed in ''national security cases'' than in cases of ''ordinary'' crime, the Justice continued, inasmuch as the tendency of government so often is to regard opponents of its policies as a threat and hence to tread in areas protected by the First Amendment as well as by the Fourth.154 Rejected also was the argument that courts could not appreciate the intricacies of investigations in the area of national security nor preserve the secrecy which is required.155

The question of the scope of the President's constitutional powers, if any, remains judicially unsettled.156 Congress has acted, however, providing for a special court to hear requests for warrants for electronic surveillance in foreign intelligence situations, and permitting the President to authorize warrantless surveillance to acquire foreign intelligence information provided that the communications to be monitored are exclusively between or among foreign powers and there is no substantial likelihood any ''United States person'' will be overheard.157

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.