Do you take medication for your masochistic-tendencies?
You take the NYT, I'll use legal precedence and court decisions.
The NSA Terrorist Surveillance Program is the controversial program that authorizes the monitoring of, without warrants, phone calls, e-mails, internet activity, text messaging, and other communication involving any party suspected of having links to terrorist organizations such as Al-Qaeda or its affiliates even when the other party to the call is within the United States. The Executive has taken the position that it is acting within its constitutional obligations and within the law by carrying out this program.
Article II of the Constitution grants the Executive the power of “Commander in Chief” and also requires that the Executive “take care that the Laws be faithfully executed.” This power, along with powers granted in the Authorization for Use of Military Force Resolution and the Foreign Intelligence Surveillance Act, as well as judicial precedence in regards to the Fourth Amendment give the Executive all the power that is needed to carry out this program.
The Foreign Intelligence Surveillance Act (FISA) was enacted in 1978 as a response to such programs as Operation Minaret and the Church committee. FISA allows the Justice Department to obtain warrants from the Foreign Intelligence Surveillance Court (FISC) before or up to 72 hours after the beginning of the surveillance. FISA authorizes a FISC judge to issue a warrant if "there is probable cause to believe that… the target of the electronic surveillance is a foreign power or an agent of a foreign power." Second, FISA permits the President or his delegate to authorize warrantless surveillance for the collection of foreign intelligence if, "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.” While this would seem to close the case, it also allows for this to be circumvented by a statute from Congress.
In United States v. Duggan it was upheld at the circuit court level that there are exceptions to the normal warrant requirements when the purpose of the surveillance is to prevent attack from a foreign threat. Also, the Supreme Court has not ruled on the legality of targeting US persons acting as agents of a foreign power and residing in this country, however this scenario has previously occurred, such as in the Aldrich Ames case. It can be speculated that the Supreme Court refuses to rule on this issue so as not to bind the Executive’s hands.
The National Security Act of 1947 states that the President is required to keep Congressional intelligence committees "fully and currently" informed of U.S. intelligence activities, however for covert actions, from which intelligence gathering activities are specifically excluded in §413b(e)(1), the President is specifically permitted to limit reporting to the “gang of eight.” The Executive Branch fully complied with this requirement when implementing the NSA terrorist surveillance program by briefing thirteen members, dozens of times, over the span of three Congresses. Aside from this is the fact that FISA targets an outdated method of surveillance and an outdated enemy. This is clearly seen in the testimony of SA Rowley when she stated FISA procedural hurdles had hampered the FBI's investigation of Zacarias Moussaoui, the so-called 20th hijacker.
The President was also given clear authority under the Authorization to Use Military Force Resolution, which establishes the statute that enables the Executive to conduct this program. The AUMF authorized the use of United States Armed Forces against those responsible for the attacks on September 11, 2001. The authorization granted the President the authority to use all "necessary and appropriate force" against those whom he determined "planned, authorized, committed or aided" the September 11th attacks, or who harbored said persons or groups. The preamble of the resolution goes as far as to state “Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States:” This is a clear indication that Congress is giving the President, under authority of the Constitution, the ability to do whatever he deems necessary, as Commander in Chief, to prevent further terror attacks. The Executive asserts that communications intelligence is an essential part of waging war and preventing terror attacks and that this must be included in any natural reading of the authorization. Further there is a long precedence of the Executive engaging in warrantless surveillance dating back to George Washington's interception of British mail. The actions taken by the Executive in the NSA Terrorist Surveillance program have a long precedence to stand on.
In a ruling made by the Supreme Court in 2004, in the case of Hamdi v. Rumsfeld the Supreme Court ruled that the Executive had the ability under the authorization to use force passed by Congress to detain an American citizen captured on a foreign battlefield “based on longstanding law-of-war principles,” in spite of a federal law prohibiting such detentions unless authorized by Congress. This would seem to show that Congress' force authorization implicitly gave the president the power to conduct any activity considered an essential aspect of waging war, including warrantless electronic surveillance, at home and abroad. The intent of Congress is clear again in the Protect America Act of 2007. This bill allowed the monitoring of all electronic communications of people in the United States without a court's order or oversight, so long as it is not targeted at one particular person "reasonably believed to be" inside the country. These legislative actions, as well as judicial precedence makes it clear that the Executive is acting within its legal bounds.
One of the arguments made against the NSA program is that it violates the rights protected by the 4th Amendment. In fact, The Supreme Court held in Katz v. United States (1967), that the monitoring and recording of private conversations within the United States constitutes a "search" for Fourth Amendment purposes, and therefore the government must generally obtain a warrant before undertaking such domestic wiretapping. However, the protection of "private conversations" has been held to apply only to conversations where the participants have not merely a desire but a reasonable expectation that the conversation is indeed private to themselves and that no party whatsoever is listening in. In the absence of such a reasonable expectation, the Fourth Amendment does not apply, and surveillance without warrant does not violate it. Privacy is clearly not a reasonable expectation in communications to persons in the many countries whose governments openly intercept electronic communications, and is of dubious reasonability in countries against which the United States is waging war.
Opponents of this action will tell you that broad claims of Presidential power contradicts the will of Congress when it passed the Foreign Intelligence Surveillance Act of 1978, and that the law intended for the government to seek warrants from a special FISA court before conducting such surveillance. While this might possibly be true at the time it was passed, the circumstances demand for more up to date version of this law that is able to adapt with the changing nature of warfare. As John Yoo argues. “Congress has already authorized the President to use force under the Constitution; the president has the authority to use force to repel outside attacks. Why would the president be disabled from learning the information about where to point the gun when he already has the power to pull the trigger? I think that's basically what we're talking about. The President's constitutional authority to use force to try to kill the leaders of Al-Qaeda has to carry with it the authority to use all the methods he can to find out where they are in the first place.”
Given the above, the Executive has not only the authority, but the obligation, to carry out the NSA Terrorist Surveillance Program. It must be viewed that if an interpretation of FISA that allows the President to conduct the NSA activities were not “fairly possible,” FISA would be unconstitutional as applied in the context of this congressionally authorized armed conflict. In that event, FISA would prohibit the President from undertaking actions necessary to fulfill his constitutional obligation to protect the Nation from foreign attack in the context of a congressionally authorized armed conflict with an enemy that has already staged the most deadly foreign attack in our Nation’s history. As seen in Morrison V. Olson, a statute may not impede the President’s ability to perform his constitutional duty, particularly not the President’s most solemn constitutional obligation—the defense of the Nation.
