Any interpretation of the Foreign Intelligence Surveillance Act (FISA), as applied to the precise facts and circumstances of the NSA Program (which cannot be determined on the present record), that would impair the President’s ability to carry out his constitutional responsibilities, would render FISA itself unconstitutional under the separation-of-powers doctrine. FISA could not, under such circumstances, constitutionally prevent the President from carrying out the NSA Program to collect foreign intelligence to prevent future terrorist attacks on our country.
The ACLU is challenging the Administration’s end-run of FISA, while the Washington Legal Foundation wants to defend the Administration. I don’t pretend to be a legal scholar but this argument (which we had to wade through almost four pages of puffery to get to) strikes me as self-defeating. The reason goes to something this brief said earlier (OK – not all of the first 3 plus pages constituted puffery as some of appears to be just spin):
Given the obvious and overriding concern about impending future attacks, and the ongoing threats by al Qaeda to strike at America and its citizens again, both here and abroad, the President authorized the National Security Agency (“NSA”) to “intercept international communications into and out of the United States of persons linked to al Qaeda or related terrorist organizations.” DOJ Memo, supra note 2, at 5 (emphasis added). Amicus henceforth will refer to this activity, further described below, as the “NSA Program.” In order to intercept international communications under the NSA Program, the government must have “a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda.”
So if the only thing the NSA wanted to do was to tap international calls that we had probable cause to believe were to or from a member of al Qaeda, the FISA Court would have granted a warrant in a New York minute. In other words, FISA would not prevent the Administration from carrying out its constitutional responsibilities. In a word – this brief strikes me as absurd on its face. But I’m not a Constitutional scholar – so those of you who may be – feel free to comment.