But, seriously...

To read the Times article, one might get the impression that any and all Americans are subject to a warrantless search. That is not the case, as Times itself stated a few days ago:

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

Only those people thought to be communicating and collaborating with al Qaeda terrorists overseas were subject to surveillance.

In other words, this was a narrowly-tailored executive order targeting just a few hundred or few thousand terrorist-linked email addresses and phone numbers, not general surveillance of all citizen communications in a nation of 295 million.

In addition, while it should be noted that the Foreign Intelligence Surveillance Act of 1978 (FISA) requires a court order to seek surveillance on suspected terrorists or spies, there is legal precedent from 2000 entitled U.S vs. bin Laden that says in part:

“Circuit courts applying (FISA law] to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the United States that target foreign powers or their agents.”

While I haven't researched this area extensively (it doesn't come up much in traffic court) , it would seem to me that this demonstrates that U.S. courts have an established judicial precedent for bypassing FISA in certain circumstances - the circumstances that two Attorney Generals, Justice Department lawyers and White House Counsel all seem to affirm that President Bush was within his constitutional authority in addressing with his executive order to the NSA.

Other useful bits of information the Times crack reporters seem to have trouble finding—or at least reporting—were Executive Order 12333 issued while Ronald Reagan was in office, stipulations of FISA itself, and the President's constitutional authority, as noted here:


Overlooked in most of the commentary on the New York Times article is the simple, undeniable fact that the president has the power to conduct warantless surveillance of foreign powers conspiring to kill Americans or attack the government. The Fourth Amendment, which prohibits "unreasonable" searches and seizures has not been interpreted by the Supreme Court to restrict this inherent presidential power. The 1978 Foreign Intelligence Surveillance Act (an introduction from a critic of the Act is here) cannot be read as a limit on a constitutional authority even if the Act purported to so limit that authority.

Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."

That is from the 1972 decision in United States v. United States District Court for the Eastern District of Michigan et al, (407 U.S. 297) which is where the debate over the president's executive order ought to begin and end. The FISA statute can have no impact on a constitutional authority. Statutes cannot add to or detract from constitutional authority.

In short, it would appear that there was an arguable legal basis from which the authority was drawn.

It's a shame that honest reporting, or for that matter, the safety of the American people, are of little apparent concern for the reporters and the leakers.