Informed Speculation

…for the NSA affair after this blistering defense of the legality of the President’s actions by the Justice Department. I’ll save my critics some time: the point is not whether you believe Justice’s justification, or whether the author is toadying up to the administration; rather, just try making an impeachment case to the American people in defiance of language such as this:

Foreign intelligence collection, especially in the midst of an armed conflict in which the adversary has already launched catastrophic attacks within the United States, fits squarely within the “special needs” exception to the warrant requirement. Foreign intelligence collection undertaken to prevent further devastating attacks on our Nation serves the highest government purpose through means other than traditional law enforcement. See In re Sealed Case, 3 10 F.3d at 745; United States v. Duggan, 743 F.2d 59. 72 (2d Cir. 1984) (recognizing that the Fourth Amendment implications of foreign intelligence surveillance are far different from ordinary wiretapping, because they are not principally used for criminal prosecution).

Intercepting communications into and out of the United States of persons linked to al Qaeda in order to detect and prevent a catastrophic attack is clearly reasonable. Reasonableness is generally determined by “balancing the nature of the intnision on the individual’s privacy against the promotion of legitimate governmental interests.” Earls, 536 U.S. at 829. There is undeniably an important and legitimate privacy interest at stake with respect to the activities described by the President. That must be balanced, however, against the Government’s compelling interest in the security of the Nation. see, e.g., Haig v. Agee, 453 U.S. 280, 307 (1981) (“It is obvious and unarguable that no governmental interest is more con~pellingth an the security of the Nation.”) (citation and quotation marks omitted). The fact that the NSA activities are reviewed and reauthorized approximately every 45 days to ensure that they continue to be necessary and appropriate further demonstrates the reasonableness of these activities.

The memo also makes it clear that there are probably prosecutions in the works for the leakers:

The President stated that these activities are “crucial to our national security.” The President further explained that “the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country.” These critical national security activities remain classified. All United States laws and policies governing the protection and nondisclosure of national security information. including the information relating to the activities described by the President, remain in full force and effect. The unauthorized disclosure of classified infomiation violates federal criminal law.

It won’t come as any surprise that the MinuteMan has much, much more…