Suppose the NSA overhears Al Qaeda big-wig #1 in Pakistan telling Al Qaeda big-wig #2 in England to call the brother in Washington and order him to launch the State-of-the-Union surprise attack. Big-wig #2 places the call to a previously unknown number in the US. Should the NSA spy on that telephone conversation? Not according to the Democrats. They claim the President is breaking the law unless the Administration applies to the FISA court for permission to tap the phone. By the time that happened the phone conversation would be long over and Washington might be hit with something like a few liters of Saddam’s weaponized anthrax – good for half a million dead Americans.

It’s not just the looney left making that claim. Here’s Jonathan Turley, Law Professor at George Washington University on the O’Reilly show:

TURLEY: Well, I, I have to disagree with my good friend, Paul. I don’t consider this a close case at all. I think that this operation was based upon a federal crime. Under federal law, there’s only two ways in order for the President to engage in the surveillance of citizens in this way. They can get a Title 3 warrant, which is the traditional electronic surveillance warrant in criminal cases, or they can get a so-called FISA [Foreign Intelligence Surveillance Act] warrant from the secret court. But it is a crime for someone, acting under the color of law, to order surveillance – or to conduct surveillance – unless you’ve gone to a judge under one of those two schemes.

In Turley’s world, Bush could be impeached if the administration taps that call to the Al Qaeda cell member in the US.

Heres what the President has to say in the opening paragraph of the administration’s defense (PDF file) of the secret NSA program:

As the President has explained, since shortly after the attacks of September 11, 2001, he has 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. The purpose of these intercepts is to establish an early warning system to detect and prevent another catastrophic terrorist attack on the United States. This paper addresses, in an unclassified form, the legal basis for the NSA activities described by the President (“NSA activities”).

If such intercepts had to be approved by FISA on a case-by-case basis, they would no longer provide an early warning system.

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