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Presidential Power, Part IV

Monday, December 19, 2005  |  posted by Hugh Hewitt
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I yield the balance of my time to Orin Kerr, whose must-read analysis begins:

Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don’t know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act. My answer is extra-cautious for two reasons. First, there is some wiggle room in FISA, depending on technical details we don’t know of how the surveillance was done. Second, there is at least a colorable argument — if, I think in the end, an unpersuasive one — that the surveillance was authorized by the Authorization to Use Miltary Force as construed in the Hamdi opinion.

When you have finished with Professor Kerr’s legal analysis, click over to John McIntyre’s political analysis at RealClearPolitics.com, a key portion of which reads:

First, the Democrats still do not grasp that foreign affairs and national security issues are their vulnerabilities, not their strengths. All of the drumbeat about Iraq, spying, and torture that the left thinks is so damaging to the White House are actually positives for the President and Republicans. Apparently, Democrats still have not fully grasped that the public has profound and long-standing concerns about their ability to defend the nation. As long as national security related issues are front page news, the Democrats are operating at a structural political disadvantage. Perhaps the intensity of their left wing base and the overwhelmingly liberal press corps produces a disorientation among Democratic politicians and prevents a more realistic analysis of where the country’s true pulse lies on these issues.

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