In my previous post on the NSA surveillance program, I noted "a power inherent in his Constitutional position as Commander in Chief" that may provide him with a Constitutional justification for the program regardless of the FISA statutes.
I was recently directed to a 2002 decision by the United States Foreign Intelligence Surveillance Court of Review which may have been the impetus for the NSA surveillance program. The case, known as 'In re: Sealed Case No. 02-001', uses almost the same language. It notes "the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance" and mentions said inherent power exists not once, but twice.
The timing of this case is what captured my attention. It was shortly after the Foreign Intelligence Surveillance Court attempted to curtail the Administrations new uses of FISA after the Patriot Act. The resulting appeal to the Court of Review in 2002 stands as the latest and greatest precedent on foreign surveillance issues. And apparently around this time Bush got the NSA program off the ground.
The court opinion is worth the read if you have the stomach for such 56 pages of legalese and a healthy understanding of the FISA statutes and related procedures which are probably most thoroughly documented here.
The gist of the opinion is that:
1) The FISA Court was attempting to hold the Administration to pre-Patriot Act rules in a pretty absurd fashion that was clearly not based in statute or even within their powers as an Article III court. This move by the FISA court may have been the initial motivation for the Administration to find a way to bypass them.
2) They also affirmed the Constitutionality of FISA court orders whether they be regarded as Amendment IV warrants or meeting the reasonableness requirement.
3) And though probably not a major concern at the time, what seemed to have had the most profound results was that they note "the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance."
So on top of having had a serious motivation to find a way to bypass the FISA courts, the Administration was additionally handed the legal ability to do so. They also got the FISA courts more in line with their views on FISA, post-Patriot Act, for the times when they still needed to deal with them.
The Court of Review did not seem to indicate that FISA hampered that inherent Executive power but was ambiguous on this point. If it would have found the two ideas to be exclusive the program could be perfectly legal. If it would have found the two ideas to be dependent on each other it would probably make the program illegal. Meanwhile my original argument that the program still violated FISA is still up in the air due to the statutory exemption clauses pointed out by an astute reader.
So I suppose there will be more updates to come.